Volume 71 — Vermont Reports

Case. Trial by jury at the September term, 1895, Washington county, Start, J., presiding. Verdict and judgment for the plaintiffs. The defendants excepted. At the close of the testimony the defendants moved for a verdict for insufficiency of evidence. The motion was overruled.

Trespass on tbe freehold, with a claim for treble damages under R. L. 4206. Pleas, the general issue and two special pleas. Upon the report of a referee at the December term, 1896, Bennington county, Thompson, J., presiding, judgment was rendered, pro forma, for the defendants to recover their costs. The plaintiffs excepted.

Chancery. Heard upon pleadings, master’s report, and exceptions thereto, at the February term, 1898, Orleans county, before Ross, Chancellor, who sustained the exception to the testimony of McDowell on the subject of payments, and disallowed such payments, and rendered a decree of foreclosure against McDowell for the amount due, and against Tucker, also, but allowing him, under his cross-bill, to remove certain of the property, not including the buildings, boiler, engines…

Chancery. Heard on pleadings, master’s report, exceptions thereto and motion to recommit, Windsor county, before Tyler, Chancellor, who on February 14, 1898, rendered a decree perpetually enjoining the defendants from altering the bulkhead or flume under the sawmill and grist-mill, or the rock raceway, and from taking water in any other way than that in which said Manufacturing Co. has been accustomed to take it, and from drawing from the pond earlier than six o’clock in the…

Assumpsit. Trial by court at the December term, 1897, Lamoille county, Munson, J., presiding. Judgment for the defendant. The plaintiff excepted. The defendant, a farmer, sold the plaintiff, a butcher, seven hogs, on inspection, at the full market price per pound live weight, knowing that they were to be killed and cut up for sale in the usual course of the plaintiff’s business, as was afterwards done.

Case. Heard upon special demurrer to the declaration at the September term, 1898, Rutland county, Thompson, J., presiding. Demurrer overruled and declaration adjudged sufficient. The defendant excepted.

Chancery. Upon master’s report and exceptions thereto by both parties at the September term, 1897, Washington county, Tyler, Chancellor, rendered a pro-jorma decree overruling the orators’ exceptions and dismissing the bill with costs. The orators appealed. The facts relating to the liability of the defendant Oscar to the orators were found to be as appears in the reported case, Corey v. Morrill, 61 Vt. 598.

Indictment under V. S. c. 198 for becoming a peddler without a license. At the June term, 1898, Orange county, Start, J., presiding, the demurrer to the indictment was overruled, pro forma, and the indictment and each count thereof adjudged sufficient. The respondent excepted.

<p>Health Officer Must Be a Resident. — Y. S. c. 193, although not explicit upon that point, does not authorize the state board of health to appoint for a town a health officer who is not a resident of that town; the duties to be performed by such officer as well as the general and long settled understanding that local officers must be selected from among those for whom they are to act, making it clear that such was the legislative intent.</p>

Case. Plea, tbe general issue. Trial by jury at tbe March term, 1898, Rutland county, Start, J., presiding. Verdict and judgment for tbe plaintiff. Tbe defendant excepted.

<p>License to Occupy, No Revocation of Devise. — The testator, after the making oí the will, made a contract in writing, bnt unsealed, unwitnessed and unrecorded, whereby he agreed to convey a piece of land included in one of the devises, and was to be paid therefor two hundred dollars in installments, and to give a deed and take a mortgage back after fifty dollars had been paid. Possession- had been taken and twenty-eight dollars of the price paid before the testator’s decease. Held, that the contract did not operate as a pro-tanto revocation of the will, creating the relation of mortgagor and mortgagee and leaving the testator only a chattel interest in the land, but was only a license to occupy, under which the licensor’s interest was lost by non payment; and that if his payment created an equity in his favor, it could be asserted only by him, or his privies, not by the executor for the purpose of depriving the devisee of the land.</p> <p>Devisee Entitled to Rent as against Executor. — A writing signed by a lessor, — but neither sealed, witnessed, acknowledged, nor recorded,— purporting to lease a spring with a right to construct and repair a reservoir and aqueduct for so long a time as the lessee, his heirs and assigns, shall pay the specified rent, amounts only to a license, leaving the title in the licensor so that by his devise of the land his devisee becomes entitled to the rent as against the executor.</p>

<p>Reward, When is Town Bound by Offer of. — Selectmen cannot bind the town by the offer of a reward for the arrest and conviction of the person guilty of removing a body from its grave in a cemetery in the town, it not appearing that the town’s property was injured nor that any statute cast upon the town the burden of prosecuting for such offences.</p> <p>Selectmen Offering without Authority Do not Bind Themselves. — Neither do the selectmen by making such an offer in the name of the town render themselves personally liable to one who acts upon and fulfills its conditions; for such person is bound to know, as well as they, that they have no such authority.</p>

Ejectment. Trial by court at the March term, 1898, Rutland county, Start, J., presiding. On the facts found judgment was rendered for the plaintiff for the seizin and possession of the premises, and $100 damages and costs.

Habeas Corpus. The petition was addressed to the chief judge, before whom the relator was brought October 10, 1898, when the hearing was continued to the supreme court for the county of Caledonia, to be held at Montpelier on the 12th day of October, 1898, the relator being admitted to bail in the meantime.

Complaint to the city court for the city of Barre by the city attorney. Heard in that court on demurrer to the complaint August 6, 1898. Demurrer overruled. The respondent excepted. cited Bishop on Statutory Crime, (2d ed.) §§ 404-408; State v. Soragan, 40' Yt. 450; Keeler v. Milledge, 4 Zab. 142; 1 Archibald, Crim. P. &. P. 248; Wharton, Crim.

<p>Trust — Legatee as Trustee. — A fund was bequeathed to an incorporated school district to be invested and the income used for current school expenses. -The probate court appointed a trustee. Held, that there was no occasion for the appointment, for the legatee had full power to execute the trust.</p> <p>Trust — Chancery and Probate Jurisdictions. — But neither was there any occasion for the legatee to apply to chancery to order the legacy paid to it, the probate court never having been applied to for that purpose.</p>

Case. Plea, general issue. Trial by jury at the September term, 1897, Rutland county, Munson, J., presiding. The jury after due deliberation failing to agree, a verdict was directed for the defendant, and the plaintiff excepted.

Complaint for bastardy. Trial by jury at the September term, 1897, Chittenden county, Taft, J., presiding. Verdict and judgment for the defendant. The complainant excepted. The prosecution was controlled by the town of Underhill under V. S. 2725.

Trespass on the free hold. Heard on referee’s report, June term, 1898, Orange county, Start, J., presiding. Judgment for the defendant. The plaintiff excepted.

Action on the Case. Plea, the general issue. Trial by jury at the December term, 1897, Caledonia county, Thompson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The plaintiff, a young boy, claimed to have been attacked and bitten by the defendant’s dog, as the plaintiff, with other children, was passing the defendant’s house.

Replevin. Plea, the general issue. Trial by jury, at the March term, 1898, Windham county, Taft, J., presiding. Verdict and judgment for the defendants. The plaintiff excepted.

Chancery. Came on for hearing upon demurrer to the bill at the March term, 1898, Chittenden county, before Thompson, Chancellor, who rendered a pro-forma decree overruling the demurrer and making the temporary injunction perpetual. The defendant appealed.

Case. Trial by jury at the December term, ,1897, Caledonia county, Thompson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. This was a second trial of the case reported in 69 Vt. 210, and the tendency of the plaintiffs evidence was the same as at the first trial. It did not appear that the plaintiff ever expressly refused to pay further premiums or offered to return the policy.

Case for loss of baggage. Plea, general issue. Trial by jury, at the March term, 1898, Windham county, Taft, J., presiding. Verdict for the plaintiff with special findings. Judgment thereon for $158 damages and costs. The defendant excepted.

Assumpsit. Plea, general issue. Trial by jury at the December term, 1897, Bennington county, Taft, J., presiding. Verdict ordered and judgment thereon rendered for the defendant. The plaintiff excepted.

Assumpsit. Trial by court, at the June term, 1898, Caledonia County, Munson, J., presiding. Judgment for the plaintiff for $900.00 with interest from May 1, 1895. The defendants excepted.

Heard upon the report of a commissioner, at the September term, 1897, Franklin county, Munson, J., presiding. The plaintiff’s exceptions to the report were sustained, those of the defendant overruled, and judgment was rendered for the plaintiff for $1,710.77. The defendant excepted.

Trespass. Appeal from the city court of Burlington to the county court for Chittenden county. Trial by jury, at the March term, 1898, Thompson, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted.

Action to recover an insurance assessment. Trial by court, at the June term, 1898, Caledonia county, Munson, J. presiding, judgment for the plaintiff. The defendant excepted. There was not sufficient proof of a legal assessment. The assessment could only be made upon those who were members at the time of the loss. Long Pond Ins. Co. v. Houghton, 6 Gray 77; Manlove v. Bender, 39 Ind. 371: 13 Am.

Assumpsit. For the support of a pauper. Plea, general issue. Trial by court upon an agreed statement at the September term, 1898, Orleans county, Munson, J., presiding. Judgment for the plaintiff. The defendant excepted. cited upon the main question, 18 Am. & Eng. Ency.

Debt on judgment. The action was begun before a justice of the peace and a motion was there made that it be dismissed for want of jurisdiction. The motion was overruled and an appeal taken by the plaintiff. The motion was renewed in the county court, at the September term, 1898, Chittenden county, Ross, J., presiding, the copy of the original record of the judgment and the execution and return thereon being made a part of the motion.

Special assumpsit. General issue. Trial by jury at the June term, 1898, Caledonia county. Munson, J., presiding. Verdict ordered and judgment thereon rendered for the defendant. The note was payable on demand.

<p>Lien — Construction of Contract. — The plaintiff gave the defendant a bond which recited that he had sold to the defendant a farm, six cows and certain other property, for two thousand dollars, to be paid, a certain amount with interest on the whole debt, each year, and that when nine hundred dollars and interest had been paid, the defendant should have a deed and give a mortgage back for the balance; a lien was then reserved upon the crops, wood, bark and lumber, and the butter and income from the cows, until “said payments are made.” Held, that the lien was security for the nine hundred dollars with interest, and not merely security upon each year’s product for the payment due that year.</p>

Petition to foreclose a mortgage. Heard on pleadings and master’s report, at the June term, 1898, Caledonia county. Munson, Chancellor, rendered a decree of foreclosure in the usual form. The defendants appealed.

<p>Pauper — Divorce.—A divorced wife no longer takes the legal residence of the husband.</p> <p>Divorce — Parental Duty to Support. — A decree of divorce, granted to a wife, with the care and custody of minor children, does not absolve the husband from his parental duty to support.</p> <p>Pauper — Divorce—Liability for Support of Child. — When a question arises between towns, touching liability to support the minor children of divorced parties, if the custody has been decreed to the mother it is her residence that governs.</p>

Petition to the supreme court for the county of Chittenden for a writ of quo warranto. Heard on complaint, answer and evidence at the October term, 1898.

Trustee Process. Heard upon a commissioner’s report at tbe June term, 1898, Orange county, Start, J,, presiding. Trustee adjudged liable in the sum of $145.21. Claimant excepted. The trustee, the Boston & Maine Railroad, is incorporated under the laws of Maine, Massachusetts and New Hampshire. When this trustee process was served it was operating the Passumpsic Railroad in Vermont under a lease.

Assumpsit. General issue. Trial by jury at the May term, 1898, Windsor county, Ross, C. J., presiding. Verdict ordered and judgment thereon for the plaintiff. The defendant excepted. The plaintiff rested after introducing the check and certificate of protest, which were admitted against the defendant’s exception. Whereupon the defendant, against ■ the plaintiff’s exception, made proof of the other facts stated in the opinion.

Ejectment. Trial by court at tbe June term, 1897, Addison county, Munson, J., presiding.' Judgment for tbe plaintiff for possession and damages and costs. Tbe defendant excepted. Tbe relation of vendor and vendee is tbe one tbat exists between tbe plaintiff and defendant. Ejectment is not available in tbis State. Tbis action of ejectment is founded on a mutual contract. In its legal effect it is an equitable proceeding.

Debt on judgment. General issue, pleas in bar, replication and rejoinder. Trial by court at the March term, 1898, Franklin county, Munson, J., presiding. Judgment for plaintiff. Defendant excepted.

Pleas, defective execution, incapacity, undue influence and fraud. Trial by jury at the September term, 1898, Chittenden county, Ross, C. J., presiding. Verdict and judgment for the contestants. The proponent excepted. The proponent, Charles T. Barney, is a grand nephew of the testator, is a lawyer, and himself drew the will. The contestants are all the lawful heirs of the deceased except the proponent’s father.

Appeal prom Probate. Trial by jury at the May term, 1898, Windsor county, Ross, C. J., presiding. Verdict and judgment for the proponent. The contestant excepted. This was an appeal from a decree of the probate court for the district of Hartford, allowing an instrument as the last will of Ellen B. Segur. The appellants objected upon four grounds: (1) defective execution; (2) incapacity; (3) undue influence; and (4) that one clause of the instrument was against public policy.

Trespass on the Freehold. Heard on the report of a referee, May term, 1898, Windsor county, Ross, C. J., presiding. Judgment for the defendant to recover his costs. The plaintiffs excepted.

Proceedings instituted by the commissioner of state taxes, upon permission of the chancellor, to determine the liability of tbe defendant for certain taxes. Heard upon an agreed statement of facts, at the September term, 1898, Chittenden county, Ross, C. J., presiding. The court rendered a pro-forma judgment for the defendant to recover its costs. The plaintiff excepted.

Declaration in general assumpsit. Trial by court, at the June term, 1898, Caledonia county, Munson, J., presiding.

Assumpsit. Plea to the jurisdiction, that the defendant was a resident of Canada and had no attachable interest in the property attached, and no goods, effects or credits in the hands of the trustee. Trial by jury -at the March term, 1898, Franklin county, Rowell, J., presiding. Verdict directed, and judgment therein rendered, for the defendant. The plaintiff excepted.

Chancery. Heard iu the vacation following the March term, 1897, Franklin county, upon demurrer to the bill brought forward in the defendants’ answer, before Ross, Chancellor, who sustained the demurrer, adjudged the bill insufficient and dismissed the same with costs. The orators appealed.

General and special assumpsit. Trial by jury, at the April term, 1898, Lamoille county, Start, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Debt on a Bond. Special plea and notice. Trial by court, at the March term, 1898, Rutland county, Start, J., presiding. Pro-forma judgment for the defendant to recover his costs. The plaintiff excepted.

Appeals from sewer assessments made by the trustees of defendant village under Acts 1892, No. 119. Heard on the report of commissioners, at the September term, 1898, Franklin county, Tyler, J., presiding. Petitions dismissed with costs. The petitioners excepted.

Heard on an agreed statement of facts, at the March term, 1898, Rutland county, Start, J., presiding. The decree of the probate court was affirmed. The plaintiff excepted. Clauses 5 and 6 of the will read as follows: “5th.

Action of Account. Heard upon motion to dismiss for want of jurisdiction, and demurrer to the declaration; at the September term, 1898, Washington county, Start, J., presiding. Pro-forma judgment denying the motion and overruling the demurrer. The defendant excepted.

Ejectment. The general issue and two special pleas in bar. Replication, de injitria. Trial by jury, at the September term, 1897, Rutland county, Munson, J., presiding. Verdict ordered and judgment thereon rendered for the plaintiff for possession and damages.

Heard on the report of the commissioners appointed to set out a homestead, at the September term, 1898, Chittenden county, Ross, C. J., presiding. Judgment that the defendant is entitled to the homestead set out to his testate by the probate court commissioners, so far as the same has not been extinguished by the foreclosure of the mortgage, and to no other homestead or homestead right. No costs to either party. The defendant excepted.

Chancery. Heard at the March term, 1898, Franklin county, on pleadings, master’s report, orators’ exceptions thereto and motions to suppress and recommit, before Rowell, Chancellor, who overruled the motions, accepted the report and dismissed the bill with costs. The orators excepted.

General and special assumpsit. Heard on an agreed statement of facts, at the March term, 1898, Rutland county, Start, J., presiding. Judgment for the plaintiff. The defendant excepted. The action is based upon a “claim by virtue of the policy,” and is barred by the stipulation that the action should be commenced within twelve months from the date of loss. The proposition was a conditional one and was rejected.

Proceedings to lay out a highway. Heard upon the report of commissioners, exceptions thereto and motion to recommit the same, atthe September term, 1898, Washington county, Start, J., presiding. Proforma judgment overruling the motion and exceptions and accepting the report with the usual orders. The Montpelier & Wells River Railroad excepted.

<p>Debt on Bond. General issue and notice. Trial by jury,' at the June term, 1897, Caledonia county, Taft, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.</p> <p>The paragraph in the bill of exceptions relating to the interview between McLoud and the defendant is as follows:</p> <p>Said McLoud was a witness for the plaintiff and was allowed to testify against the defendant’s objection and exception that upon an occasion in the summer following the failure of Beede and Dow, when the witness and the defendant were discussing an arrangement with reference to the giving of certain notes by Drenan to be signed by Beede and the defendant in settlement of the bond indebtedness, the defendant made no claim but that he was liable upon the bond, nor that there was to have been another surety thereon.</p> <p>The defendant offered to show that the goods and real estate of the insolvents were sold at a sacrifice. The offer was excluded and the defendant excepted. The defendants requested the court to charge that the action of McLoud, being a director of the plaintiff, m selling goods to said Johnson, another director, was in itself suspicious and put the burden on the plaintiff of proving such sale to have been advantageous and for full value, and that if McLoud sold the property mortgaged to the bank to another director of the bank, for less than its fair cash value, it released the defendant as surety to the extent of such loss to the bank. The court declined to charge according to these requests and the defendant excepted.</p>

Slander. General issue. Trial by jury, at the December term, 1897, Caledonia county, Thompson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The words were alleged to have been spoken of and concerning the plaintiff in his professional capacity as a physician and with the innuendoes stated in the opinion of the court.

Case. Heard on an agreed statement, at the December term, 1898, Caledonia county, Start, J., presiding. Judgment for the defendant. The plaintiff excepted. The plaintiffs are entitled to. judgment if (1) the duty of the defendant to maintain sufficient cattle guards was absolute, or (2) the mare was unlawfully upon the road crossing, or (3) the case Harwood y. Bennington & Rutland R. R. Co., 67 Vt. 664, is sound.

Assumpsit. Pleas, general issue, statute of limitations and notice. Heard on referee’s report at the March term, 1898, Rutland county, Start, J., presiding. Judgment for the plaintiff. The defendant excepted. cited Kingsbury v. Butler, 4 Yt. 458; Bell v. Yates, 33 Barb. 627; Howland y. Edmonds, 24 N. Y. 307; Dawley y. Wheeler, 52 Vt. 574; Palmer v. Palmer, 36 Mich. 487; Steele y. Steele, 25 Pa. St. 154; Morrison v. Mullin, 34 Pa.

Indictment for Sodomy. Trial by jury at the September term, 1898, Washington county, Start, J., presiding. At the close of the evidence, the respondent moved for a verdict of acquittal for that the evidence disclosed the commission of no crime under the laws of this State. The motion was denied. Verdict, guilty. Exceptions by respondent. Sentence respited.

General Assumpsit. Pleas, general issue, accord and satisfaction and payment. Notice in reply to payment. Trial by jury at tbe March term, 1898, Windham county, Taft, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted.

Trespass and Troyer. Pleas, the general issue and justification as an officer under regular process. Upon referee’s report, at the September term, 1898, Washington county, Start, J., presiding, a pro-forma judgment was rendered for the plaintiff. The defendant excepted. This is an action to recover damages of the defendant who as a deputy sheriff attached the property in dispute on a writ in which the plaintiff’s husband was defendant.

<p>Listers. — V. S. 2992, which provides that if a lister after accepting the office does not perform its duties, he shall be fined one hundred dollars, applies to a failure to take up or carry on the general duties of the office, and not to single instances of failure to perform the whole duty of lister, such as the omission to file the tax inventories with the town clerk for preservation, as required by Y. S. 440.</p>

Case. Trial by jury, at the March term, 1898, Rutland county, Start, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The plaintiff sought to recover damages for injuries sustained by reason of falling from a ladder upon which he was standing while taking measurements of a ventilator upon a passenger car of the train.

Information for keeping a nuisance in the city of Barre. Plea, not guilty. Trial by jury, at the March term, 1897, Washington county, Taft, J., presiding. Verdict and judgment of guilty. The respondent excepted.

<p>Partnership. — One who makes, delivers and bills goods to one member of a firm, knowing that they are for that member’s personal use, is not entitled to a money judgment therefor against the firm, although there may be an understanding between him and such member, unknown to the copartnership, that the goods shall apply in payment of the firm’s account against the seller. Whether the right of offset would exist under such an arrangement is not decided.</p>

Trustee Process. Heard upon commissioner’s report and exceptions thereto, at the June term, 1898, Orange county, Start, J., presiding. Trustee adjudged liable. The trustee and claimant excepted. The order directed the payment to the claimant of all the defendant’s wages then due and afterward to become due while in the employ of the trustee.

General and Special Assumpsit. Plea, the general issue. Trial by jury, at the March term, 1898, Washington county, Munson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Trustee Process. Heard upon the report of the commissioner, at the September term, 1898, Orleans county, Munson, J., presiding. Trustee discharged with costs. The plaintiff excepted.

<p>Receiver — Distribtition of Assets of Insolvent Ti ust Company— V. S. 4062. — • This suit was instituted and a receiver appointed under the law applicable to “insolvent banking associations,” an expression which by virtue of V. S. 4106 and 4123 includes savings banks and trust companies; and the assets must be distribtited under that law, and not in the manner pi'ovided by its charter in case of its dissolution, — a contingency which has not yet occurred.</p> <p>Dissolution. — The court will not pass upon the l'ights of creditors in case of dissolution before the dissolution occurs.</p>

Book Account. Pendency of former action pleaded in abatement. Traverse. Heard on an agreed statement at the December term, 1898, Orange county, Rowell, J., presiding. Plea overruled. The defendant excepted and the cause was passed directly to this court. If the action of assumpsit, entered in court September 29, 1898, was pending and undetermined therein when the present action of book account for the same cause was commenced, the former abates the latter.

General Assumpsit. Heard on tbe report of a referee, at the March term, 1899, Essex county, Rowell, J., presiding. Judgment for the defendant. The plaintiff excepted. This action was brought to recover back money paid by the plaintiff to the defendant for timber taken from the plaintiff’s own land. The plaintiff and the defendant were adjoining owners and the line between their lands was uncertain.

Case for negligence. Came on for hearing upon demurrer to the replication, at the September term, 1898, Essex county, Taft, J., presiding. Judgment, pro forma that the demurrer be overruled and the replication adjudged sufficient. The defendant excepted. The pleadings are sufficiently stated in the opinion..

<p>Case for deceit. Trial by court, at the March term, 1899, Chittenden county, Taft, C. J., presiding. Proforma judgment for the plaintiff for $96.04, damages, and costs. The defendant excepted.</p>

Chancery. Appeal from the court of insolvency. Heard upon the report of the master and exceptions thereto, at the December term, 1898, Windsor county, before Taft, Chancellor, who affirmed the decree of the court of insolvency. The assignee appealed.

<p>Assumpsit. General issue. Trial by jury at tbe March term, 1897, Rutland county, fyler, J., presiding. Yerdict and judgment for the plaintiff. The defendant excepted.</p> <p>The plaintiff claimed to recover for a quantity of hardwood lumber which he claimed was sold and delivered to the defendant. His evidence tended to show that in June, 1894, McLaren, the superintendent and purchasing agent of the defendant, came to the plaintiff’s house where the lumber was then stored, in company with one Barnard, who was then engaged in the manufacture of chair stock; that he bargained with said McLaren, who acted for the defendant, for the sale of all the hard-wood' lumber which was there stored, and for a quantity of hard-wood lumber that was then on the mountain; that he delivered lumber at the place of business of said Barnard from time to time after said date until the following September, and for each load so delivered took a receipt showing the number of feet, signed by Barnard.</p> <p>The defendant’s evidence tended to show that the plaintiff sold the lumber to Barnard, and that McLaren made no contract with the plaintiff and that he went with said Barnard on said occasion for the purpose of inspecting the lumber with a view to ascertaining whether it would be suitable to be manufactured into chair stock such as the defendant contemplated purchasing from said Barnard when manufactured.</p> <p>The action against Barnard, mentioned in the opinion, had.been discontinued.</p>

<p>Information under Y. S. 4568 for illegal fishing. Plea, not guilty. Trial by jury, at the December term, 1898, Addison county, Ross, C. J., presiding. Judgment of guilty upon a special verdict. The respondent excepted.</p> <p>The special verdict was as follows: “In this case the jury under oath find specially that the facts set up in the information are true; and they find the further fact that the identical waters were posted by the fish and game commissioners, and fishing prohibited therein for the three years prior to April 1, 1896, and ending with that date, when the posting and prohibition specified in the information was begun. If as a matter of law under these facts the defendant is guilty, the jury find him guilty, otherwise not guilty.”</p> <p>The commissioners had not power to lap a second three year term upon the first. Y. S., c. 189, expressly provides that the prohibition shall be “for a period not exceeding three years.” Y. S. 4568. This statute is in derogation of the common law and is not to be extended by construction.</p> <p>Y. S. 4567 provides, “waters stocked by the fish and game commissioners shall thereafter be treated as public waters.” If this means anything, it confers upon the public, after the three years expire, the old right to fish. N. E. Trout and Salmon Club v. Mather, 68 Yt. 338; State v. Theriault, 70 Yt. 617.</p> <p>The constitution, c. 2, § 40, declares that “the inhabitants of this State shall have liberty in seasonable times to hunt and fowl on the lands they hold and on other lands not enclosed; and in like manner to fish in all boatable and other waters (not private property) under proper regulations to be hereafter made and provided by the general assembly.” The information is bad in failing to allege that the waters in question were not boatable waters or that they were private property. I Bishop Crim. Proc., § 637; State v. Barker, 18 Yt. 195; State v. O' Donnell, 10 R. I. 472; Com. v. Kenner, 11 B. Munroe 1; U.S. v. Cook, 17 Wall. 168; State v. Stevenson, 68 Yt. 529.</p>

Debt. Heard on demurrer to tbe declaration, at the September term, 1898, Rutland county, Thompson, J., presiding. Demurrer sustained. The plaintiff excepted.

<p>Habeas Corpus. Heard at the May term, 1899, of the supreme court for Orange county.</p>

Case, for the burning of a barn and contents. Plea, general issue. Trial by jury, March term, 1898, Rutland county, Start, J., presiding. Verdict and judgment for the plaintiffs. The defendant excepted. No rule is more firmly imbedded in the common law than this, that a party must recover, if at all, Secundum allegata et probata.

General Assumpsit. Trial by jury, at the September term, 1897, Washington county, Tyler J., presiding. Verdict and judgment for the plaintiff with a close jail certificate against the defendant. The defendant excepted.

Declaration in general assumpsit. Trial by jury, at tbe September term, 1898, Washington county, Start, J., presiding. Verdict and judgment for tbe plaintiff. Tbe defendant excepted. Tbe plaintiffs sought to recover in tbe county court upon specifications as follows: “To building bridge $88.00, and grading $253.43, with interest from April 1st, 1893.” Before commissioners they presented a claim for $30.00 only.

Chancery. Heard upon pleadings, master’s report and exceptions thereto by both parties, at the March term, 1899, Washington county, before Thompson, Chancellor, who, pro. forma, overruled the exceptions and dismissed the bill with costs. The orator appealed.

Information. Trial by jury, at the September term, 1898, Washington county, Start, J., presiding, Verdict, guilty. The respondent excepted. The court, so far as informations are concerned, having held that the same may be amended in substance notwithstanding V. S. 4542, should be confined to common law rules in determining the right to amend; and V. S. 1911 does not apply. ■

Trial by court, at the June term, 1898, Orange county, Start, J., presiding. Upon the findings, the court affirmed the decree of the probate court allowing, filing and recording the instrument. The contestant excepted.

Case. Heard on general demurrer to the declaration, at the December term, 1898, Addison county, Ross, C. J., presiding. Demurrer overruled and declaration adjudged sufficient. The defendant excepted.

Assumpsit. Plea; general issue. Upon an agreed statement of facts, at the March term, 1899, Washington county, Thompson, J., presiding, a pro-forma judgment was rendered for the defendant. The plaintiff excepted.

Petition in the nature of an appeal from an assessment by the trustees of the village of St. Albans against an abutting owner for the construction of a sewer. Heard on the commissioners’ report, at the September term, 1898, Franklin county, Tyler, J., presiding. Petition dismissed and judgment for the petitionee to recover the assessment and costs. The petitioner excepted.

Chancery. At the March term, 1899, Chittenden county, before Taft, Chancellor, the case came on for hearing under á mandate of the supreme court and the report of the master filed in pursuance thereof; whereupon it was adjudged that the oratrix recover of the defendant the sum of $4,719.96 with interest since March 8, 1899, which the defendant was to pay within sixty days with costs, and in default thereof the notes and mortgage described in the bill were to become the…

<p>Chancery. The case came on for hearing upon pleadings and master’s report, at the March term, 1899, Chittenden county, before Taft, Chancellor, who rendered a pro-forma decree dismissing the bill as to defendant Teachout with costs and without prejudice, and for the orator against the other defendants. The defendants Clark appealed.</p> <p>This was a petition to set aside the mortgage of defendant Jed P. Clark to Henry O. Clark and the quitclaim deed of Jed P. to the orator, to foreclose the mortgage of Jed P. to the orator, and to enjoin the defendant Teachout from conveying the premises.</p> <p>December 10, 1883, Jed P. Clark executed to tbe orator a mortgage of a farm in Milton of about 500 acres, called the Barnum farm, to secure $4,000. The premises were then free from encumbrance. February 14, 1885, said Clark executed a mortgage of the same premises, together with other real estate to secure the grantees therein from liability as his bondsmen. This mortgage was discharged by quitclaim deed of the bondsmen July 25, 1893. September 8, 1892, Jed P. Clark executed a mortgage to Henry O. Clark of certain lands in Milton, the description of which in the mortgage was more extensive than the limits of the Barnum farm, but included that farm. The condition of this mortgage was that Jed P. Clark should pay a note for $325 and all present and future indebtedness from the mortgagor to the mortgagee. This mortgage was given in good faith; the note for $325 was given for cash loaned at the time, and there was then due to the mortgagee an additional sum of $13,376.84, with some interest. The mortgage was duly recorded on the day of its date. This mortgage contained a covenant of warranty that the premises were free from all encumbrance, but the mortgagee at the time of its execution had knowledge that the debt of the mortgagor to the orator was past due and that the prior mortgage to secure this debt was in life and undischarged.</p> <p>Subsequently to the date of the mortgage of Jed P. Clark to Henry O. Clark, namely, March 21, 1893, said Jed P. conveyed the Barnum farm to the orator by quitclaim deed under the following circumstances. The orator was about to foreclose when Jed P. proposed to quitclaim the farm in discharge of the debt. The orator asked for a warranty deed. Jed P. replied that he was unable to give that by reason of the existing prior mortgage to his bondsmen, which, however, he said would soon be cleared off. He made no reference to the mortgage to Henry O. Clark. The orator had no knowledge of this mortgage and did not consult the record. By common arrangement a conveyancer drew the deed, computed the amount due on the notes including interest, the precise and full amount of which was endorsed on the notes named in the deed as the consideration thereof. The deed was delivered to the orator and the notes were left with the conveyancer to be delivered to Jed P. Clark whenever the mortgage to the bondsmen should be discharged, but although such mortgage was subsequently discharged the notes were not delivered up because they were not called for, and nothing further was done to discharge the mortgage of Jed P. to the orator. The master found that it was intended by the parties to pay and discharge the debt by the deed, but that the orator was led by said Jed P.to believe and did believe that the premises were free from encumbrance except the mortgage to the bondsmen, and he would not have abandoned his foreclosure proceedings and concluded the arrangement had he believed otherwise. The orator entered into possession of the premises and contracted to sell them to Murray, who took possession under his contract but received no deed. Murray sold his interest to Teachout. Afterwards the orator sold and conveyed the premises to Teachout by warranty deed, being still ignorant of the mortgage to Henry O. Clark. Teachout went into possession, divided the farm into lots and developed the property for building purposes to accommodate the employes of a neighboring pulp mill in process of construction. The purchase price of the premises from the orator to Teachout was $4,800. The value of the land at the date of the deed to Howard was $4,000; at the date of the sale to Teachout $4,800; at the present time $8,000, exclusive of two cottages and one double house which Teachout has constructed on the premises; the increase in value being due to the prospect of the construction of the pulp mill.</p>

<p>Whose Deed? — A lease which names an association as lessee and declares that in the transaction the association acts by certain of the signers as directors, is nevertheless the deed not of the association but of the signers, if it is executed in their names and with their seals.</p> <p>Whose Deed? — It is immaterial that the signers on the part of the association act, and are understood to act, as directors and not otherwise, for, the association being unincorporated, they act for themselves as well as for their associates and are therefore bound.</p> <p>Non-joinder — Demurrer—Objection must Be Availed of at Heuring. — An objection for non-joinder of defendants in chancery cannot be taken by demurrer unless the defect is apparent on the face of the bill; and if the objection is made by answer to be availed of at the hearing, it must appear by the decretal order to have been so availed of, or it will be disregarded in this court.</p> <p>Parties — Some as Representing All. — Especially should the objection be disregarded in the present case, in which the parties who might be joined are numerous and the defendants fairly represent the interests of all.</p> <p>Chancery Jtirisdiction. — Chancery has jurisdiction to enforce payment of rent upon a lease, joint and not several, in which the same party is both a lessor and a lessee, for an action at law would not lie.</p> <p>Rent Passes as Incident of Reversion. — When a lessor quitclaims a part of the demised premises, his interest in the lease as to that part, and a proportionate share of the rent, pass as an incident of the reversion.</p> <p>Attornment. — If afterwards the grantee lease to the original lessee, it constitutes an attornment by the lessee, and as it involves notice of the conveyance, it is good as to the rent in arrear which has accrued since the conveyance.</p> <p>Attornment. — An attornment is not necessary under our system of conveyances, to complete the validity of an assignment of a reversion, and being thus inapplicable to our situation and circumstances, the doctrine was not adopted by our statute as a part of the common law; consequently the assignee is entitled to all arrears of rent that have accrued since the conveyance and have not been paid to the grantor in default of notice.</p> <p>Attornment. — But if the assignee lies by and permits the tenant without notice to pay rent to the lessor as it falls due, he cannot complain; and such seems to have been the common law when the grant passed the estate without attornment, as it did by some modes of conveyance.</p> <p>How Foreclosed Lessor May Keep His Lease Alive. — A lessor who loses his title to the demised premises by a decree of foreclosure, may at the same time take a lease of the premises from the foreclosed mortgagee, and thereby feed his own lease and be entitled to have it still performed on the part of his lessee.</p> <p>Lessee cannot Abandon because He Fears a Breach. — A lessee cannot by anticipation, and because he fears, treat the lease as broken by the lessor because his interest is not in the first instance sufficient in point of time to feed the lease during the remainder of the term; for while the lessor is performing and does not renounce the lease, the lessee is bound to know that he may continue to perform, and must wait until the actual breach.</p> <p>Acceptance of Abandonment — Surrender op Term. — When the lessee has abandoned the premises, the lessor cannot let them and receive pay therefor, even for a day, without accepting the abandonment and working a surrender of the term as matter of law.</p> <p>Eviction, Intent necessary to. — A mere taking back of a portion of the demised premises by the lessor, is not as matter of law an eviction, in the absence of the requisite intent.</p>

<p>Case. Plea, general issue. Trial by jury, September term, 1897, Franklin county, Start, J., presiding. Verdict and judgment for the defendant. The plaintiffs excepted.</p> <p>The first count of the declaration alleged that the defendants sold to the plaintiffs all their, the defendants’, interest in a tract of timber land by knowingly, falsely and fraudulently representing that it was 'bounded by Canada line on the north, and by the crest of a mountain range on the east, west and south, whereas a portion of the tract deeded lay beyond the crest, and a portion of the tract within the crest was not included in the deed; wherefore the tract was much less valuable, and the plaintiffs were damaged.</p> <p>The second count alleged that the defendants sold to the plaintiffs all their, the defendants’, interest in that part of lot 4, range 6, of the town of Jay lying west of a mountain crest, by knowingly, falsely and fraudulently representing that such part contained fifty-five acres, whereas it contained only twenty-three acres.</p> <p>Upon trial, the principal contentions were three. The first related to the representations; the second to the actual boundaries of the tract conveyed; and the third to the value of the land as bearing on the question of damages.</p> <p>In the following statement, the exceptions are dealt with separately and numbered as in the opinion.</p> <p>(1) Dewart was a witness for the plaintiff. Before the excluded question was put to him, he had testified that he was a graduate of Harvard University and the Lawrence Scientific School, had taught surveying and trigonometry for fourteen years, and had been a practical operating surveyor since 1880. He produced and identified certain blocks showing the spottings on the double birches and on other marked trees on or near the lines in question, and was then asked if he could tell from those blocks the age of the marking. He replied, “I can tell some things. I can’t tell the precise age.” He was next asked if he had examined them for that purpose, and answered, “Yes.” He was then asked, “How long, in your opinion, had those marks been on the double birch trees?” Defendants’ counsel objected, that the witness had said he could not tell. The court ruled, “We will exclude the question in view of what has been said;” and plaintiffs’ counsel excepted. The witness was then further asked if he could tell the probable age or time from the marking, and answered that he could. He was asked to do so; but the question was excluded and the plaintiffs excepted.</p> <p>Before these questions were asked and this ruling made, the witness had not testified that he had ever counted or attempted to count the rings upon a tree, or that he had any knowledge how to determine the age or marks upon trees, — or that he knew of any method by which the age of a mark upon a tree could be determined; and no evidence had been offered tending to show that the witness had any skill in this particular. But afterwards the same witness testified that he had used a magnifying glass every week day for ten or fifteen years and that he had examined and counted rings on wood to determine the age. The offer was not renewed.</p> <p>(10) (11) (12) (13) (37) The defendants were allowed to show that while they were the owners of the lands in question, the adjoining owners had cut the timber to the line which the defendants were now claiming as the true line, and beyond the line which the plaintiffs were now claiming as the true one, and that the defendants had acquiesced in such cutting believing it to be according to the lines of ownership.</p> <p>(14) (15) (38) The defendants were permitted to show that before the sale to the plaintiffs they had employed a surveyor to divide lot 4 in range 6, for the purpose of a contract which they had with one Bowen, and what the surveyor did and what he reported to them that he had done in respect to that business, as bearing on the good faith of their representations to the plaintiffs touching the division of said lot and their ownership of fifty-five acres therein.</p> <p>(16) In the opening, the plaintiffs’ witnesses testified to the difference in value between the land as it was actually located and as it had been represented by the defendants to be located, — that is, to the difference in value between the land without the crest and the land within the crest, and most of their witnesses stated that the difference was fourteen dollars per acre, and that the land without the crest was worthless.</p> <p>(28) The plaintiffs’ witness Dewart had testified that in regard to a certain corner he had a clue in the statement of the field book of the town that it was a birch tree. The defense called Dewart and Handed him the field book, and was permitted to show by him that its description of that corner was not as he had stated.</p> <p>(29) Defendant Leavens had testified to his ignorance of the location and boundaries of the land in question. On cross-examination he admitted that he had in his possession, as guardian, a deed of the land running to his ward’s father and was asked to produce it before the trial should close. He did so, but the plaintiffs did not offer it in evidence. Thereupon the defendants were permitted to read it to the jury in connection with his testimony. The deed described the property only by reference to former conveyances.</p> <p>(34) North Troy was shown to be one of the natural markets for lumber in that vicinity.</p> <p>Requests 1, 2, and 3. The deeds contained a stipulation that the plaintiffs, in cutting timber from the land conveyed, were to begin on Canada line and cut a strip wide enough for a year’s operation, and cut the timber on such strip clear to the crest of the mountain.</p>

<p>Foreign Judgment — Jurisdiction Presumed. — A declaration in debt upon a judgment of a court of superior common-law jurisdiction in a sister state is not to be beld insufficient upon demurx-er because it fails to show that the court had jurisdiction of the subject matter or the parties, for jurisdiction is to be presumed, until the contrary is made to appear by plea or proof.</p>

<p>Agency. — The American Express Company was under contract with the defendant bank to have certain checks at Burlington, Yt., presented and protested. The company’s agent at that point failing to understand the business, counsel for the bank in the presence of the president of the bank and the president of the company, telephoned to the agent to deliver the checks to the plaintiffs to be protested, but to understand that he was acting for the company and not for the bank. The agent . delivered the checks to the plaintiffs, telling them that he did so by direction of the bank, and suggested that they take directions from the defendant through the telephone, which they did. Held, that for the plaintiffs’ services in protesting the checks the defendant was not liable.</p>

Chancery. The cause came on for hearing.upon demurrer to the bill at the September term, 1898, Franklin county, before Tyler, Chancellor, who rendered a pro-forma decree dismissing the bill. The orator appealed.

<p>False Imprisonment. — The defendants took the plaintiff from his home to the court house, where they kept watch of him for a few hours, when he was taken by the jailer and kept in jail until two days later, when he was brought before the United States Commissioner on a warrant charging him with robbery of a post office. No evidence was produced and the plaintiff was set at liberty. Without deciding whether the defendants could under any circumstances be held for the damages that accrued to the plaintiff after he was taken by the jailer, it is held that they are not liable for any that accrued after he was taken on the warrant, it not appearing that they had from that time anything to do with the proceedings.</p>

General and special assumpsit. Pleas, general issue, statute of limitations, and accord and satisfaction. Trial by jury at 'the September term, 1898, Rutland county, Thompson, J., presiding. Yerdict and judgment for the plaintiff under pro-forma rulings. The defendant excepted.

<p>Acts 1896, No. J3 — Liability of 7own for Want of Railing. — The want of a guard or railing at a dangerous place on a highway, other than a bridge or culvert, does not constitute an insufficiency under Y. S. c. 152, rendering the town liable to travelers for damages occasioned thereby.</p> <p>Construction of Statute. — Lets 1896, No. 73, requiring such guards to be erected and maintained by towns, is made by its second section a part of c. 152 for the purpose not of making- towns liable to travelers but of ensuring the erection of guards by other methods included in that chapter, such as indictment and fine.</p> <p>Construction of Statute. — If the legislature had intended to impose a general liability upon towns, it would have used more apt language than merely to make the provision a part of a chapter containing among other things a liability provision.</p>

<p>Respondent’s Appeal to County Court, when May Be Entered. — .A respondent who has appealed to the county court from the judgment and sentence of a justice, may enter his appeal on the first day of the term as matter of right, or may enter it at any later day during the term if the court in its discretion will permit him; and he has a legal right to have the court exercise its discretion. To refuse as matter of law to entertain his appeal is error.</p>

<p>Case for deceit. Trial by jury, at tbe December term, 1898, Windsor county, Taft, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted.</p> <p>With reference to the fourth point in the opinion, it appeared that the defendant had afterwards given a mortgage upon the property covered by the statement, and the plaintiff requested the court to charge that the written statement “made a continuous obligation on the part of the defendant which if he did not perform it, should be treated as intended to deceive the plaintiff,” but the court declined to so charge, instructing the jury that the real question was whether the defendant had intended at the time he made the written statement to deceive the plaintiff and did not at that time intend to notify them of any such change.</p>

Assumpsit upon a policy of life insurance. Trial by jury, September term, 1897, Washington county, Tyler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

<p>No. 5 of the Acts of the Extra Session of 1898, providing that the First Regiment, National Guard of Vermont, volunteering for service in the United States army, should upon its return constitute and be reinstated as such First Regiment, and each member be credited with the time spent by him in the Fedei'al service, amounted to a leave of absence, without discharge, and upon their return the regiment was reinstated by operation of law.</p> <p>The Governor having treated the enlistment of members of the First Regiment, Vermont National Gnard, as an enlistment by the Regiment itself, under the act of Congress providing for enlistment by State organizations, no cogent reason appears why that construction should be held erroneous.</p> <p>The contemporaneous construction of a statute by the executive officer whose duty it is to execute it, is not to be disregarded nor overturned unless clearly erroneous.</p> <p>A statute is to be construed with reference to its manifest object, and so as to carry out rather than defeat it, if both constructions are possible.</p>

<p>Proceedings for Contempt.</p>