Volume 93 — Vermont Reports

Trover for a quantity of goods consigned to B. J. Fayette, and delivered to M. J. Solomon by the defendant. Plea, the general issue. Trial by the city court of the city of Burlington, C. S. Palmer, City Judge. Judgment for the defendant. The plaintiff excepted. The opinion states the case. If the goods were delivered to the one who ordered them, the carrier is not liable, although he is not the person to whom the consignor thought he ivas sending them.

Action op Tort, for raising a highway in front of plaintiffs ’ house more than three feet without first having the damages assessed according to law. Trial by jury at the September Term, 1917, Orleans County, Butler, J., presiding. At the close of plaintiffs’ evidence defendant moved for a directed verdict. Terdict directed for the defendant, and judgment thereon. The plaintiffs excepted. The opinion states the case.

Petition for writ of habeas corpus brought to tbe Supreme Court of Washington County, and heard on an agreed statement of facts. The opinion states the case. The verdict was a general one, and the wrong done by the relator must be taken to be described in the counts most favorable to him, namely the counts charging simple negligence and carelessness, for in these proceedings the burden of showing otherwise is on the execution creditor.

Action ok Trover to recover the value of certain goods, and a count in trespass quare clausum for breaking and entering plaintiff’s store, and there selling and carrying away the same goods. Plea, the general issue, and notice of special matter in justification that defendant, as deputy sheriff, sold the goods on an execution against one M. H. Lewis, and that the goods were the property of said Lewis.

Action op Tort for negligence. Plea, the general issue. Trial by jury at the March Term, 1916, Rutland County, Fishr J., presiding. Verdict, and judgment for the defendant. The plaintiff excepted. The opinion states the case.

<p>Municipal Corporations — Streets—Bights of City — Electric Transmission Line — Use of Streets — Vested Bight — Power-to Bevoke Bight — Taking of Property Without Compensation — City’s Use of Poles of Electric Company — Ordinances ' —Construction—Constitutionality—Ordinance Giving City Bight to Use Poles of Private Company — Harmless Error— Validity of Contract — Question for Court — Evidence.</p> <p>A city has no property right in land taken for a highway within its limits; it does not even own the easement, that being in the public.</p> <p>A city has no proprietary right of compensation for the additional • burden created by a line of poles and electric wires in its streets; the right to grant the privilege, and to fix the terms and conditions, of so occupying the streets being primarily with the Legislature.</p> <p>Where the right of the plaintiff to occupy the streets of the city of Burlington with its electric transmission lines had become vested before the city was given the charter ■ right to fix conditions and regulations for the use or occupancy ot its streets by electric light and power companies, the city could not, by a subsequent ordinance, revoke or infringe that right.</p> <p>Where the plaintiff had acquired the vested right to occupy the streets of a city with its electric transmission lines, an ordinance giving the city the right to use the top gain of plaintiff’s poles for its own electric light and power wires would amount to a taking of its property without compensation.</p> <p>In construing a city ordinance, the Court will look for the intention of the city council as expressed by the language employed, read in the light of the surrounding circumstances; and it will be presumed that the council did not intend what it had no authority to do.</p> <p>If, without doing violence to the fair meaning of its language, a city ordinance can be given a construction that will save it from a constitutional objection, it will be so construed.</p> <p>A city ordinance reserving to the city for city purposes the top gain of every pole erected for sustaining wires in the public streets, did not contemplate the use of the top gain of poles already erected for its electric light and power wires, when, at the time the ordinance was passed, its fire alarm system was the only system of wires owned and operated by it.</p> <p>The referee’s interpretation of the city ordinance was harmless because it was not binding upon the court, and because it accords with the interpretation of the Supreme Court.</p> <p>The validity of a contract with a city, claimed to be invalid under an ordinance, is a question of law for the court.</p> <p>The admission of evidence of the income of the defendant’s electric light plant for a certain year was harmless.</p> <p>Query. Can parties ever concede a fact into the' record and at the same time reserve a valid exception?</p>

<p>Vendor and Purchaser — Contracts—Rescission—Consideration —Unambiguous Language — Interpretation—Province of Court — Parol Evidence — Additional Oral Agreement-Written Contract — Terms—Presumption—Effect of Mutual Rescission — Harmless Error — Affirming Judgment on Ground not Raised Below — Reversal.</p> <p>Where the parties by mutual consent rescind a contract for the sale of land, the release of one is a consideration for the release of the other.</p> <p>A contract in clear and unambiguous language is to be interpreted by its own terms, without resorting to parol evidence of what was said between the parties during the negotiations thereof.</p> <p>The interpretation of such a contract is for the court.</p> <p>Parol evidence may be received for the purpose of showing an additional oral agreement entered into at the time of making a written contract not inconsistent therewith.</p> <p>The presumption of law is that the writing contains the whole contract; the exception being where it is shown that the parties did not intend to reduce the whole contract to writing, and the portion omitted is consistent with the writing.</p> <p>Where there is no ambiguity in the contract that requires explanation by oral testimony such testimony is no more admissible to vary its clear and settled meaning and effect than it is to vary its terms.</p> <p>Where the parties to an executory contract for the sale of land made a written agreement declaring the contract “void” and releasing each other from it and all the conditions therein specified, each party was restored to his former situation, and was entitled to have restored to him that which had been received by the other by virtue of the rescinded contract.</p> <p>Where the determinative question in a case was wholly one of law and the court should have directed a verdict, the submission of the ease to the jury was harmless error where thé jury returned the proper verdict.</p> <p>In such case, the questions presented for review, other than on the motion for a verdict, are immaterial to the rights involved, and the rulings of the court were harmless to the excepting party.</p> <p>The judgment helow will be affirmed, if it can be on any legal ground, whether it be on a ground presented in Supreme Court or not.</p> <p>The judgment will not be reversed on a ground not raised below and not briefed and presented in argument before the Supreme Court, for the exceptor has the burden of making the record show affirmatively that error was committed below.</p> <p>While, for some purposes, it is competent to show the real consideration of a contract by parol evidence, a party cannot, under the guise of showing such consideration, prove an oral agreement, either antecedent or contemporaneous with the contract, which varies its terms or legal meaning or effect.</p>

Clogston. Pleas, defective execution, incapacity and undue influence. Trial by jury at the September Term, 1917, Washington County, Slack, J., presiding. Verdict and judgment for the contestants. The proponents excepted. The opinion states the case.

<p>Harmless Error — Automobile Collision — Evidence—Authentication of Map — Speed of Car Atuay from Place of Collision— C. L. 4651 — Dim Lights — C. L. 4705 — Speed of Passing Vehicles — Exception too Late — Instructions to Jury.</p> <p>Error in the admission of evidence is not prejudicial where other undisputed evidence of the same subject matter is received without objection.</p> <p>In an automobile collision case, it was not prejudicial error to ask the plaintiff in cross-examination if the defendant saw him soon after the accident and demanded damages of him and that he repair defendant’s car, when, on objection being made, the question was withdrawn before it was ruled either way.</p> <p>Exceptions to answers of a witness which add nothing to what the witness has previously stated without objection, are of no avail.</p> <p>It was not error to allow the civil engineer who surveyed the place of an automobile collision and made the plan given in evidence, but who was not present at, and had no personal knowledge concerning the accident, to testify that the defendant pointed out to him what defendant called the tracks of an automobile and the place where defendant claimed the automobile tipped over.</p> <p>Where the plaintiff claimed that the defendant’s automobile lights were not dimmed as required by G. L. 4651, it was not error to allow the defendant, who had testified that he drove his car very slowly because his lights were dim, to testify, for the purpose of showing that his battery was weak, that he could not start his car on that battery.</p> <p>An exception taken after a responsive answer to a question has been given is too late.</p> <p>In an automobile collision case, evidence of plaintiff’s rate of speed when he passed the witness’ car one mile from the place of collision was admissible; there being evidence tending to show that plaintiff’s speed did not slacken until the collision.</p> <p>An instruction to the jury that No. 136, Sec. 2, Laws of 1917 (G. L. 4705), requiring passing vehicles to not exceed twenty miles an hour, made a higher rate of speed unlawful, was not erroneous because it failed to add that such unlawful speed must be a contributing cause to the accident, where there was no exception to the failure to so charge.</p>

<p>Exclusion of Evidence — Harmless Error — Instructions to Jury.</p> <p>The exclusion of evidence which had no bearing on any question in the case other than that of punitive damages, was harmless where the verdict was for the defendant on the main issue.</p> <p>An exception to the court’s failure» to charge on a certain matter will not be considered when the charge is not before the Supreme Court, and the bill of exceptions does not state whether there was or was not such failure to charge, nor that any exception was taken because of such failure.</p>

Appeal in Chancery. Heard on an agreed statement of facts at the March Term, 1918, Chittenden County, Wilson, Chancellor. Decree for the plaintiff. Defendant Lyman C. Hurd, Sr., appealed. When premises are purchased for a homestead and the purchaser moves into -possession within a reasonable time after the purchase, the premises are impressed with the character of a homestead from the time of the purchase. Hair v. Davenport, 74 Neb. 117; Evans v. Daniels, 25 Tex. Civ.

<p>Landlord and Tenant — Indirect Findings — Intention to Lease— Lease for' Tears — Renewal—Tenancy After Expiration of Term — Tenancy at Will — Payment of Rent — Effect— Termination of Tenancy by Act of Landlord — Notice to Quit — Waiver—Reasonable Time for Removal.</p> <p>For several years defendant occupied plaintiff’s farm as tenant under an informal lease, a new agreement being made each year. When the last year was about to expire, plaintiff refused to lease the place for another- year, and no express agreement was.made concerning the defendant’s occupancy after the expiration of the term on November 15, 1917. Defendant continued to occupy the place regularly paying the stipulated rent each month. February 13, 1918-, plaintiff wrote defendant asking him to vacate the place by March 15, 1918. The defendant refused to vacate, claiming that his time was not out until November 15, 1918. Defendant paid, and the plaintiff accepted, the rent up to April 15, 1918, and the action of ejectment Was begun April 22, 1918. Held,</p> <p>(1) That indirect findings were equivalent to the direct finding of fact that the plaintiff had no intention of leasing the place for another year, but did intend that the defendant might continue to occupy it under the' terms of the previous agreement, the rent to be paid monthly until she decided what to do with the place, and that the defendant so understood;</p> <p>(2) That prior to November 15, 1917, the tenancy was one for years, and not one from year to year; that after that date the tenancy was one at will;</p> <p>(3) That when a lease expires, and the tenant is permitted to continue in possession pending a treaty for another lease,' he is a tenant at will, and so strictly so that he may be turned out without notice to quit;</p> <p>(4) That the tenancy was not changed into one from year to year by the payment and acceptance of the rent mentioned, because the implied agreement that the occupancy should terminate ii the plaintiff sold the place or decided to occupy it herself characterized such occupancy;</p> <p>(5) That, although.the defendant was not entitled to a technical notice to quit, the plaintiff, before she could make his possession wrongful, must, by some act or declaration inconsistent with the continued voluntary relation of landlord and tenant, do something to determine the will and terminate the tenancy;</p> <p>(6) That a “waiver” is the intentional relinquishment of a known right; and the plaintiff, by unqualifiedly accepting the monthly payment of rent from March 15th to April 15th, unequivocally recognized the tenancy as existing on the latter date, and thereby waived her notice to end the tenancy on March 15th.</p> <p>A tenant at will is entitled to a reasonable time after the termination of the tenancy in which to procure other accommodations and remove his property.</p>

<p>Criminal Law — Burglary—Information—Place of Imprisonment —Presumption as to Age.</p> <p>Under G. L. 6858, 6859, it is as much burglary to break and enter in the daytime as it is to break and enter in the nighttime; the effect of the statute being, not to make two crimes, but to make two grades of the same crime.</p> <p>While it is necessary to allege the aggravating circumstances to convict of the higher grade of burglary, it is not necessary to allege that the offence was committed in the daytime to convict of the lower grade.</p> <p>A respondent convicted of burglary was properly sentenced to the House of Correction under G. L. 7184; it being assumed, the contrary not appearing, that he was over sixteen years of age.</p>

Action op Justice Ejectment brought iu Burlington City Court. Tried on an agreed statement of facts, C. S. Palmer, City Judge. Judgment for the defendant. The plaintiff excepted. The opinion states the case.

Action op Tort for deceit in tbe sale of a farm. Plea, tbe general issue. Trial by jury at tbe September Term, 1917, Washington County, Slack, J., presiding. Verdict for tbe plaintiffs for $1,500. Tbe court submitted two special verdicts, and tbe jury returned a verdict of $750 on each.

Action op Tort to recover for personal injuries. Plea, the general issue. Trial by jury at the September Term, 1917, Washington County, Slack, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the ease.

<p>Highways — Discontinuance of Highway in Two Counties — Proceedings by One Town — Jurisdiction—Determination Without Waiting for Objection — Practice Act — Void Process— Amendment.</p> <p>An original petition brought to the Supreme Court by one town against another, under G-. L. 4452, to discontinue a highway located in the two towns in different counties, is void, because, to give the Court jurisdiction, the petition should have been brought against the towns by seven or more freeholders, as provided by G. L. 4453.</p> <p>Wherever a defect in the proceedings fatal to its jurisdiction is brought to the attention of the Court, it must be considered, and the Court will not wait for the parties to object, but will act of its own motion.</p> <p>Under G. L. 1795, 1796, voidable process is amendable, while void process is not.</p>

<p>Petition for separate maintenance. Heard on the petitionee’s motion to dismiss the petition at the May Term, 1918, Windsor County, Butter, J., presiding. Motion granted, and petition dismissed with costs. The petitioner excepted. The opinion states the case.</p>

<p>Fraud — Misrepresentations—By Officers of Corporation — Bight of Reliance — Knowledge of Falsity — Estoppel of Pa/rty Deceived to Deny Truth — Expression of Belief — Jury Question — Access to Sources of Knowledge — Duty to Discover Fraud — Amount of Damages — Sufficiency of Evidence — Excessive Verdict — Setting Aside or Remittitur — Verdict Affected by Passion or Prejudice — Setting Aside — Evidence— Annual Statement of Corporation — Damages.—Scienter— Hearsay — Predication of Testimony On — Remoteness Of— Appeal and Error — Burden of Showing Prejudicial Error —Instructing Jury to Disregard Evidence Improperly Received — Questions Revieioable — Harmless Error — Trial— Motion to Strike Out Testimony — Failure to Meet Offer of Proof.</p> <p>Plaintiff, an employee of the company of which the defendants were officers and stockholders, purchased stock therein relying upon the representations of the defendants that a balance sheet, used as an annual statement of the company, showed its true financial condition. Plaintiff, in the course of his duties, had prepared the balance sheet from the books of the company, and knew that a small item therein was incorrect. Held, that, while plaintiff could not rely upon the representation as to the truth of the item he knew to be incorrect, he was not thereby estopped from denying the truth of the representations as to other items, of the falsity of which he was ignorant through no fault of his own.</p> <p>The evidence was sufficient to justify the finding that the defendants knew that their representations were false, or, at least, intentionally gave currency to mere belief as knowledge, in which case the question was one of fact for the jury.</p> <p>The question whether the plaintiff understood that one of the defendants, in making the representations, was expressing nothing more than his belief as to the financial condition of the company, was for the jury.</p> <p>The fact that the books of the company were open to the plaintiff, and he knew all that they disclosed, did not bar him from relying on the representations of the defendants, because the books did not show the true state of the company’s affairs.</p> <p>Where one has been induced to enter into a contract by fraudulent misrepresentations, it is no defence that, but for his own negligence, he might have discovered the wrong and prevented its accomplishment.</p> <p>Where all the evidence is before the Supreme Court on an exception to the refusal of the trial court to grant a motion to set aside a verdict on the ground that the verdict is contrary to instructions or wholly unsupported by the evidence, the general rule that such motions are addressed to the discretion of the trial court does not apply, and the question is reviewable.</p> <p>The trial court erred in refusing to set aside the verdict or to order a remittitur on the ground that the evidence was insufficient to sustain the same.</p> <p>If the trial court was satisfied that the verdict was excessive, in its discretion, it could have set it aside and awarded a new trial, or it could have determined what would be a reasonable recovery, and ordered that the motion to set aside the verdict be overruled if the plaintiff should remit the excess, and it could have adopted the latter course even if it did not clearly appear just what the excess of the verdict was.</p> <p>Where an excessive verdict has been rendered through bias, passion, or prejudice, the error taints the whole verdict, and cannot be cured by a remittitur, but the defendant is entitled to a new trial as matter of right.</p> <p>The annual statement used by one of the defendants in representing to the plaintiff the financial condition of the company was admissible in evidence against him.</p> <p>The record of the meeting of the directors of the company at which the annual statement was received as a report of the treasurer for the preceding year, and testimony that one of the defendants presided at the meeting, were admissible against him as bearing upon his acquaintance with the affairs of the company and with the contents of the statement.</p> <p>It is not enough that the excepting party allege error in the admission. of evidence, but tbe. burden is upon him to show that he was prejudiced thereby.</p> <p>Error in the admission of evidence cannot be cured by instructing the jury to disregard it.</p> <p>The determination of the question of the remoteness of evidence ordinarily rests in the discretion of the trial court and is not reviewable, but the circumstances may make it a question of law.</p> <p>Considering the nature and extent of the company’s business, the testimony of the bookkeeper for the assignee of the company that he made a careful examination of the company’s books in December, 1913, and that the creditors received eighty-eight per cent, of their claims, was too remote, and was not admissible as tending to show the value of the stock at the time the plaintiff purchased it in February, 1913.</p> <p>The fact that material testimony does not fully come up to the offer of proof affords no basis for a motion to strike it out.</p> <p>Testimony of an attorney that prior to January, 1913, his firm had various bills for collection against the company, that they always notified the company of the same, and that it was necessary to sue the company in the latter part of 1912 and the fore part of 1913, was admissible as bearing on the question of the defendants’ knowledge of the financial condition of the company.</p> <p>The admission of testimony by the plaintiff that with his school training only it was not possible for him to take up the company’s system of bookkeeping without instruction, was harmless to the defendants.</p> <p>Testimony of the plaintiff, on redirect examination, referring to the statement of bills payable made by him at defendants’ request, that, long after he purchased the stock, he found the statement was incorrect, was not inadmissible as resting on hearsay, as the only importance of the inquiry was to show when he discovered the error, and not the fact of its existence.</p>

<p>Railroads — Crossing Accident — Sufficiency of Evidence — Lookout for Travelers — Negligence of Engineer — Question for Jury — Contributory Negligence of Child — When Question of Law or Fact — Parent’s Negligence — Not Imputable to Child.</p> <p>In an action against a railroad company for the death of a girl nearly seven years old struck and instantly killed hy one of defendant’s engines at a highway crossing; held, that the evidence was sufficient to warrant the finding that, at the time of the accident, tlie decedent was a traveler on the highway and not a trespasser on defendant’s right of way.</p> <p>It is the duty of a railroad company to maintain a reasonable lookout for travelers at a highway crossing, and the extent of the duty, among other things, will depend upon the amount and land of travel over the crossing, and the presence or absence of safeguards, such as flagmen, gates, or electric signals.</p> <p>Whether the engineer exercised reasonable diligence in looking out for travelers approaching the crossing, and whether his failure to do so was a proximate cause of the accident, were questions for the jury.</p> <p>In encountering danger, a child of tender years is not required to exercise the same amount of care as that exacted of an adult, but must exercise the care reasonably to be expected of children of like age, capacity, and experience.</p> <p>The time when a child is capable of negligence is not a mere matter of age, but depends upon the circumstances of the particular case, especially his mental development and previous training and experience.</p> <p>A child may be of such tender years that he cannot be guilty of contributory negligence as matter of law, or he may be so mature in age and intelligence that the question of his contributory negligence is one of law and not of fact; between these limits are the cases where the question of his contributory negligence, according to the circumstances of the particular case, is one of fact for the jury.</p> <p>The question whether the decedent was guilty of contributory negligence was one of fact for the jury.</p> <p>Even if the mother of the decedent was negligent, her negligence could not be imputed to the child; and, being remote, it would not defeat a recovery for her benefit.</p>

<p>Criminal Law — Witness—Voluntary Statement- — Responsive Answer to Question Not Objected to — Statutory Rape — • Complaint by Prosecutrix — Corroboration—Evidence—Conclusions of Witness — Explanatory Evidence — Appearance of Prosecutrix — Burden on Exceptor to Show Error — Information-Sufficiency — Surplusage.</p> <p>Where a witness volunteered a statement which was not objected to, and no motion was made to strike it out, there is nothing on which to predicate error.</p> <p>An objection made and exception taken after an answer responsive to a question was given, were too late to be availing.</p> <p>In a prosecution for statutory rape, evidence that the prosecutrix made complaint to a third person is admissible in corroboration of her testimony, regardless of the question of consent.</p> <p>Reversible error is not shown in the overruling of an objection to a question calling for a conclusion, where the witness testified in detail as to what she observed, and it does not appear whether or not she did or could state fully all the facts upon which the conclusion was based, and the Court is unable to say that the case does not fall within the exception to the general rule that permits a witness, after stating what he observed so far as was practicable, to add his opinion or conclusion.</p> <p>Where the mother of the prosecutrix and wife of the respondent testified that she had spoken but once to him about his conduct toward the prosecutrix, her testimony that she did not speak to him more because she was afraid of him was admissible as explaining her conduct in failing to do what was natural for her to do under such circumstances.</p> <p>The witness to whom the prosecutrix made complaint was properly-permitted to testify how the prosecutrix appeared at the time, the rule not being limited to the time before the prosecutrix made complaint to any one.</p> <p>The Supreme Court cannot assume error; the burden being on the exceptor to make it affirmatively appear that error has been committed.</p> <p>If an offence sufficient to maintain an indictment be well laid, the information is sufficient although other facts be ill laid; the latter being surplusage.</p>

Appeal in Chancery. Bill to reform or cancel an indorsement npon a policy of insurance upon tbe life of Charles B. Kimball, in which the defendant is beneficiary. Heard on demurrer to the bill at the September Term, 1917, Chittenden County, Fish, Chancellor. Decree, sustaining the demurrer adjudging the bill insufficient, and dismissing it with costs. Plaintiff appealed.

<p>Fire Insurance — Incomplete Structure — “Attached”—Reneival Policy — Previous Policies Considered in Construing — Insurance Agent — When Agent of Insurer — When Agent of Insured — Waiver of Proof of Loss — Qu,estions Considered on Revieiv — Evidence—Interest of Mortgagee — Lost Instrument — Evidence as to Possession — Proof of Lost Instrument —Exceptions Not Briefed Are Waived — Harmless Error— Plaintiff Not Bound by Concession of Defendant — Opinion Evidence — Value of Mill — Knowledge of Agent Chargeable to Principal — Construction of Policy — Cross-examination— Discretion of Trial Court — Reception of Evidence Out of Time — Prestimption—Evidence—Knowledge of Insured of Rates — Instructions to Jury — Singling Out Certain Evidence for Comment — Furnishing Exhibits to Jury — Discretion of Trial Court.</p> <p>An incomplete structure may be insured as a building.</p> <p>A fire insurance policy described tbe building insured as one with boiler house attached, and occupied as a steam power lumbering mill. The boiler house was connected on one side with a veneer mill by a closed runway and on the other side with a sawmill by a steam pipe, a shaving spout, and a sawdust pipe. Held, that the word “attached” generally means “annexed,” and that the boiler house was “attached” to the veneer mill in the more usual sense of the word than to the sawmill.</p> <p>In construing a “renewal” fire insurance policy the previous policies and the circumstances surrounding and attending their issue must be considered.</p> <p>An insurance agent, in placing fire insurance on property, is presumably the agent of the companies that he represents.</p> <p>An insurance agent, in procuring fire insurance on plaintiff’s property through another agent at plaintiff’s direction, on the evidence, was the plaintiff’s agent.</p> <p>The plaintiff claimed that the veneer mill which was destroyed by fire, was covered by the insurance policy in question. Held, that the evidence warranted the finding that it was so covered.</p> <p>A nonwaiver agreement executed by the parties to the policy did not preclude a waiver of proof of loss by defendant’s statements to plaintiff, not fairly falling within the nonwaiver agreement, that it would pay the loss if the plaintiff could show that the property burned was the property insured.</p> <p>On review, only those grounds specifically pointed out in a motion for a verdict need to be considered.</p> <p>In an action on a fire insurance policy, it was not error to permit plaintiff’s counsel in his preliminary statement to tell the jury that a bank was interested as mortgagee and to outline the situation, where the policy, when admitted, showed that it was for the benefit of the bank, and evidence afterwards admitted showed its interest as mortgagee, and, the policy being lost, it became necessary to trace it into the possession of the mortgagee.</p> <p>Evidence of the interest of the bank as mortgagee and that the suit was brought for its benefit was admissible, since, under the policy, the rights of the mortgagee were different from those of the mortgagor.</p> <p>The policy having been lost, it was proper for the plaintiff to show that the mortgagee had the policy before the fire, that after the fire it was sent to the plaintiff, and that plaintiff’s president left it with the insurance adjusters, and had not seen it since, though he had made diligent search.</p> <p>The plaintiff asked defendant to produce the policy. The defendant replied that it could not, and offered plaintiff what it claimed was a full and true copy. Held, that the plaintiff was not obliged to accept what the defendant said was a copy, but could prove the policy in its own way.</p> <p>There was no error in the admission of evidence of part of the policy which, connected with other evidence, tended to prove the entire policy.</p> <p>Exceptions not briefed are waived.</p> <p>The testimony of one of defendant’s agents that the policy was a fire insurance policy insuring against loss by fire for one year, if erroneously received, was harmless, the policy itself being later admitted in evidence.</p> <p>The plaintiff was properly permitted to prove the value of the mill burned notwithstanding the fact that the defendant conceded that it was worth as much as the amount of the policy in question.</p> <p>Testimony of a witness, who described the size and construction of the mill destroyed, of its value was not objectionable on the ground that the value was shown piecemeal, where the witness did not testify as to the value of any of its parts, but, having testified to his knowledge of it, gave only his estimate of its value as an entity.</p> <p>The policy contained the general provision that it should be void if the subject of insurance be a manufacturing establishment, and it be operated in whole or in part at night later than ten o’clock. It also contained a clause subsequently written by its local agent relating to the running of the “mill” after ten o’clock at night. Held, that knowledge of the local agent several months before the policy in question was issued, and while the defendant was an insurer of the mill, of the way the veneer mill was run and that it was necessary to run parts of the same all night was admissible as aiding in the construction to be given to the clause in the policy subsequently written by the agent.</p> <p>Knowledge of an insurance agent as to the premises insured is chargeable to the insurer.</p> <p>In view of the knowledge which defendant’s agent and the plaintiff had of the property, and of the fact that there was insurance of about $10,000 on the mill insured, evidence that the sawmill was worth from $500 to $1,000 was' admissible as tending to show that the sawmill was not the “mill” insured.</p> <p>It is not error to allow a cross-examiner to inquire about the same matters testified to in direct examination.</p> <p>It is within the discretion of the trial court to allow leading questions.</p> <p>It is within the discretion of the trial court to receive evidence out of time.</p> <p>After the policy in question was written, plaintiff’s agent for looking after its insurance in Vermont wrote to Ranney, defendant’s local agent who wrote the policy in question, asking for the rates on plaintiffs property. Ranney replied, giving the rate on the veneer mill as eight per cent, and the rate on the sawmill and boiler house as seven and one-half per cent., the rate at which the policy was written. There was evidence that these rates were fixed before the policy in question was written and that the plaintiff had knowledge of the same. Held, that the letters should have been received in evidence as tending to show that the sawmill was the “mill” insured.</p> <p>In an action on a “renewal” policy of fire insurance, it is not necessary for the plaintiff in his opening case to show the situation as to the property insured when the first policy in the line of policies was issued.</p> <p>Where the trial court did not undertake to rule as matter of law on the admission of evidence objected to as being out of time, it will be presumed that the evidence was received when it was as matter of discretion.</p> <p>A party is not entitled, as matter of law, to have a certain piece of evidence singled out for special comment by the trial court in its charge to the jury.</p> <p>The jury after retiring requested to be furnished with the policy in question, and it was furnished them by order of the court. Held, that it was in the court’s discretion to refuse defendant’s request that the jury also be furnished with the correspondence and exhibits leading up to the execution of the contract.</p>

<p>Assumpsit begun by trustee process. Trial by the Hartford Municipal Court, Arthur G. Whitham, Judge. From a judgment adjudging the trustee chargeable- in the sum of $2.43 only, the plaintiff excepted. The opinion states the case.</p>

<p>Equity — Oral Demurrer — Court’s Discretion — Corporations— Suit by Minority Stockholder — Pleading—Bight to Sue— Refusal of Corporation — Bight of Stockholder to Act for Corporation — Corporation a Party Defendant — Sufficiency of Bill.</p> <p>The court, in its discretion, may grant a defendant leave to demur orally on specified grounds to a bill in equity.</p> <p>A bill brought by a minority stockholder to compel the defendant to pay back to the company an excess of salary, which, alleged that the defendant, while an officer of the company, had drawn more salary than his services were worth, and that the stockholders had declined to take any steps to recover such excess in salary, was demurrable for want of an allegation of fraud or misconduct on the part of the company in refusing to take action against the defendant..</p> <p>In matters intra vires the right to act for the corporation does not pass to an individual stockholder unless the corporation has clearly acted in bad faith or fraudulently.</p> <p>Where a corporation was made a party defendant simply because the suit was for its benefit, the insufficiency of the bill as to the principal defendant determined its insufficiency as to the corporation.</p>

<p>Assault and Battery — Evidence—Statement of Third Person — • Prejudicial Error — Argument of Counsel — Statement Not Warranted by the Evidence.</p> <p>In an action for assault and battery, plaintiff’s witness testified, subject to objection and exception, that shortly before the affray in question he heard defendant’s boy, in reply to defendant’s question, “Did you get the gun?” say, “I couldn’t find the gun so I got a ltnife.” Held, that since no evidence was offered showing that the boy gave any knife to the defendant the evidence was prejudicial and should have been excluded.</p> <p>Statement of plaintiff’s counsel in argument that the defendant had pleaded guilty to the assault upon which the suit was based was unwarranted, where the uncontradicted evidence showed that the breach of peace to which defendant pleaded guilty was committed at a different time and place, and permitting counsel to continue in the same line of argument, after objection made, was reversible error.</p>

Appeal in Chancery. Bill to confirm plaintiff’s title to certain real estate field by him under an oral contract therefor. Heard on demurrer of defendant Russell Brown to the bill at the March Term, 1918, Washington County, Waterman, Chancellor. The demurrer was overruled, the bill taken as confessed, and a ■decree entered against defendant Russell Brown in accordance with the prayer of the bill. Defendant Russell Brown appealed. 'The opinion states the case.

Disbarment proceedings, on complaint of the Attorney General. Heard at the February Term, 1919, of the Supreme Court for Rutland County, on the report of the commissioners appointed to hear the case.

Original Petition for a new trial, on the ground of newly discovered evidence, in the ease of P. G. Blanchard Statement by Watson, C. J. The case of P. C. Blanchard (under the name of P. C. Blanchard & Company) v. Ward Prouty and Edith Prouty, an action on contract, was tried on the general issue at the March Term, 1918, of Orleans county court, resulting in judgment being rendered for the plaintiff to recover the sum of $217.35 damages and $22.29 costs.

Action op Book Account to recover commission for sale of defendant’s farm. Plea, the general issne. Trial by Court at the March Term,' 1918, Orleans County, Slack, J., presiding. Judgment for the defendant. The plaintiff excepted.

<p>Action of Trespass. Plea, the general issue. Trial by Court at the June Term, 1916, Addison County, Miles, J., presiding. Judgment for the defendant. The plaintiff excepted.</p>

Appeal in Chancery. Bill to reform' a so-called perpetual lease, and for tbe specific enforcement of said lease as reformed. Heard on tbe bill, answer, cross bill and answer, replications, and special master’s report at tbe June Term, 1914, Caledonia County, Butler, Chancellor. Decree for tbe plaintiffs. Tbe defendants appealed. Tbe opinion states tbe case.

Assumpsit .in the common counts, with specifications on a promissory note, and a special count on said note. Plea, the general issue with notice of special matter of defence. Trial by Court at the March Term, 1918, Washington County, Waterman, J., presiding. Judgment for the plaintiff against both defendants. The defendant Ryle excepted.

Action op Tort for negligence. Plea, the general issue. Trial by jury at the April Term, 1918, Windham County, Fish, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Compromises are favored in the law; and statements of this nature are privileged, and inadmissible in evidence on grounds of public policy.

Action ok Contract by eight plaintiffs jointly for.breach of special contract. Heard on defendant’s demurrer to the declaration at the March Term, 1918, Orleans County, Slack, J., presiding. The demurrer was sustained, the declaration adjudged insufficient, and judgment for the defendant. The plaintiffs excepted.

Action on the Case under Federal Employers’ Liability Act to recover damages for the benefit of the next of kin, on account of claimed negligence in hauling a rack car not equipped with running boards and ladder platforms. Pleas, the general issue, and assumption of risk. Trial by jury at the April Term, 1918, Essex County, Slack, J., presiding. At the close of .the evidence the Court directed a verdict for the defendant, and judgment on the verdict. The plaintiff excepted.

Action of Tort for Negligence. Plea, the general issue. Trial by jury at the June Term, Í918, Caledonia County, Slack, J., presiding. At the close of plaintiff’s evidence the suit was discontinued as to defendant Slayton. Verdict and judgment for the plaintiff against defendant Robie. The defendant excepted. See the prior report of this case, 92 Vt. 27.

Tort por Negligence under tbe Employers’ Liability Act. Pleas, the general issue, and assumption of risk. Trial by jury at the April Term, 1918, Essex County, Slack, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Petition for writ of mandamus, brought to the Supreme Court for Chittenden County at its January Term, 1919, and then heard on the pleadings.

<p>Bankruptcy — Preference—Evidence—Vahee of Property — Price at Which Sold — Harmless Error — Immaterial Evidence— Sufficiency of Exception — Opinion—Knoiuledge of Bankrupt’s Condition — Preferred Claim — Rent—Recoverable Preference — Pleading—Set-off.</p> <p>In an action by a trustee in bankruptcy to recover a preference, testi- ' mony by tbe plaintiff of his continuous possession of the bankrupt’s stock of goods from a certain date, and of their value, was admissible, in connection with other evidence, as bearing upon the value of the stock of goods at the date of the alleged preference.</p> <p>Testimony by the plaintiff identifying the appraisers mentioned in the record, one of whom afterwards qualified and testified to the- value of the propertyof the bankrupt estate at the time of the appraisal, was properly admitted.</p> <p>Testimony by the plaintiff that he first took possession of the bankrupt stock of goods by virtue of two writs of attachment was harmless.</p> <p>The price at which property is sold is ordinarily admissible as evi- ' dence of value, though not conclusive; its weight being dependent upon the circumstances surrounding the sale.</p> <p>To sustain an objection to the admission of evidence on the ground of immateriality alone, it ought to so appear beyond a reasonable doubt, for, where the evidence is not clearly irrelevant, it should be allowed to go to the jury, leaving them to determine its weight.</p> <p>Testimony by the bankrupt that he had paid certain notes which he owed the defendant, but that there was one note that was not paid, and that, at some time within four month? of the filing of the petition in bankruptcy, be told the defendant why he did not pay that note, and that he could not pay it at that time, but would do so later on, was admissible as a link in the chain of evidence tending to show defendant’s knowledge of the bankrupt’s insolvency at the time of the alleged preference.</p> <p>Testimony by the bankrupt that he could tell the value of his stock of goods at the time of the alleged preference only by “guess” was not objectionable on the ground that guesswork was not admissible in evidence, since the testimony, taken as a whole, shows that the witness was not guessing, hut was giving his best judgment as to the value of his stock at that time.</p> <p>A witness, who appears to have acquired some knowledge that persons in general do not have in respect of a matter in question, may properly be allowed to give his opinion in respect thereof.</p> <p>Where the only exception taken to a ruling was, “We save the question, if the court please”, no question is raised for review.</p> <p>Evidence- that, prior to the date of the alleged preference, one who was then acting for the defendant and others in collecting money from the bankrupt, told the defendant that he did not think the bankrupt had the amount of money in the goods that he (bankrupt) supposed he had, and expressed the belief that the bankrupt was insolvent, was admissible as tending to show defendant’s knowledge of the bankrupt’s insolvency.</p> <p>A debt for rent stands like any debt before the court of bankruptcy, without preference in the absence of any state or Federal statute giving it preference.</p> <p>Under sections 60a and 60b of the Federal Bankruptcy Act, if a creditor receives what he has reason to believe is more than his proportionate share of the bankrupt’s property as it then existed at the very time of the alleged preference, and it turns out to be as he believes, he has received a preference that is recoverable by the trustee.</p> <p>Whether a payment by an insolvent to a creditor constitutes a voidable preference under sections 60a and 60b of the Federal Bankruptcy Act depends upon whether the creditor received a greater percentage of his estate than other creditors of the same class would have received if the assets had then been distributed pro rata, and not upon his having received more than the creditors of the same class might ultimately receive on the final settlement of the estate.</p> <p>Under the Federal Bankruptcy Act, a creditor, in accepting a transfer of property from his debtor, is required to exercise ordinary prudence to ascertain his debtor’s solvency, and, if he fails to investigate when put upon inquiry, he is chargeable with all the knowledge he would have acquired by investigation.</p> <p>The Practice Act (O. L. 1790) did not change the practice under set-off; and that matter must be pleaded to be in issue.</p> <p>Where a case was denominated as an action of assumpsit, and was so treated throughout the trial, it will be so treated on review.</p>

<p>Habeas Corpus — Correction of Errors — Supreme Court — Jurisdiction — Exclusive Judge of — Remedial Statutes — Construction — G. L. 2598 — Exception by State — Denial of Bail —Court’s Discretion.</p> <p>The judgment of a court of last resort cannot be attacked by a writ of hateas corpus, since that writ cannot be given the effect of a writ for the correction of errors or irregularities.</p> <p>The Supreme Court has exclusive jurisdiction to examine into and decide upon the regularity of its own proceedings, which it will always do on proper application.</p> <p>The Supreme Court has general and plenary jurisdiction as a court of error when its jurisdiction is properly invoked, with full power to try and determine questions brought before it “pursuant to law” (G. L. 1578).</p> <p>The Supreme Court, by hearing and deciding a question presented to it without objection, takes jurisdiction of it; and jurisdiction thus assumed will be presumed, and is not open to collateral attack.</p> <p>A court of last resort is the exclusive judge of its own jurisdiction, and its judgments are never void, but are regular for every purpose, until set aside by it in some proper proceeding for that purpose.</p> <p>A remedial statute asserted as modifying a rule of the .common law must receive a strict construction on the question whether it does modify it, but, if found to replace a common-law rule, in whole or in part, it must be given the same effect by liberal construction as it would otherwise have.</p> <p>A remedial statute is one designed to cure a mischief or 'remedy a defect in existing laws, and G. L. 2598, allowing the State exceptions in criminal cases, is remedial, and its construction should be liberal, and, within its language, commensurate with its purpose.</p> <p>Under G. L. 2598, the “questions of law decided against the State” are not confined to express decisions, but may be either express or implied; and the allowance of an exception amounting to an implied ruling that the repetition of a question previously excluded was legally proper, was tantamount to an express ruling to that effect.</p> <p>Where the respondent acquitted of murder was at large on bail, and, upon the reversal of the case by the Supreme Court on exceptions tahen by the State, the county court denied her bail as matter of law, such ruling cannot be reviewed in habeas corpus proceedings.</p> <p>Chapter II, section 32, of our Constitution, providing that all prisoners, unless in execution, or committed for capital offences, when the proof is evident or presumption great, shall be bailable by sufficient sureties, is to be interpreted in the light of the common law.</p> <p>At common law a person accused or indicted of any felony whatsoever was bailable in the discretion of the court, upon good sureties, until he was convicted.</p> <p>Because of the circumstances of this case, and the fact that the relator was not accorded the county court’s discretion as to bail, she will be admitted to bail pursuant to the provisions of G. L. 2236, providing for bail in habeas corpus proceedings.</p>

<p>Deeds — Repugnant Condition — Habendum Repugnmvt to Grant —Subsequent Covenants — Homestead—Conveyance by Husband — Effect As to Excess — Fraud—Cancellation of Deed.</p> <p>B., the husband of the plaintiff, conveyed the premises in question to J. by warranty deed, conditioned for his and plaintiff’s support. Plaintiff was not named in the body of the deed but joined in its execution. A clause in the condition provided that the title was not to vest in J. and his heirs until the death of both B. and the plaintiff. Held, that the clause was wholly repugnant to the grant, and was of no validity or effect.</p> <p>The habendum in a deed, when repugnant to the grant, yields to the manifest intent and terms 'of the grant.</p> <p>The habendum and subsequent covenants in a deed may modify, limit, and explain the grant, but they cannot defeat it when expressed in clear and unambiguous language.</p> <p>B.’s deed conveyed to J. title to all the premises in question, outside of the homestead.</p> <p>J.’s conveyance of the premises to the plaintiff, and B.’s subsequent death, vested the title to the entire premises in the plaintiff, leaving none of it in B. at the time of his death.</p> <p>Tlie plaintiff conveyed the premises to her son and took a mortgage hack conditioned for her support. As a part consideration of her deed, she relied upon the son’s fraudulent representation that the mortgage was also conditioned for the support of her granddaughter. Held, that the plaintiff was entitled to have the deed canceled and declared void.</p>

Tort for Negligence based on the Massachusetts statute. Plea, the general issue. Trial by jury at the September Term, 1917, Windham County, Stanton, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Tort for Negligence. Plea, the general issue. Trial by jury at the June Term, 1918, Orange County, Wilson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

<p>Death — Contributory Negligence — Burden of Proof — Circumstantial Evidence — Evidence—Continuous Fact — Direction of Verdict.</p> <p>In an action for damages for the death of one alleged to have been caused by defendant’s negligence, the burden is upon the plaintiff to show that no want of care on the part of his intestate contributed to his death.</p> <p>If there is any substantial evidence supporting the plaintiff’s claim, the court will not direct a verdict for the defendant.</p> <p>Circumstantial evidence may be sufficient to make the question of the contributory negligence of plaintiff’s intestate a jury question.</p> <p>Proof of the existence at a particular time of a fact of a continuous nature gives rise to an inference, within reasonable limits, that it exists at a subsequent time.</p> <p>A few seconds before defendant’s bridge fell plaintiff’s intestate was seen in the highway running toward it trying to pass and turn back some cows he was driving. Shortly after the accident his body was found under the bridge and under some of the broken timbers. Held, that there was sufficient evidence of due care on the part of the intestate to submit to the jury the question whether his death was caused by the collapse of the bridge.</p>

<p>Running Accounts on Book — Interest—Annual Bests — Implied Contract.</p> <p>In case of ordinary running account on book, when no other understanding or agreement is shown, interest is to be computed by making annual rests and allowing interest thereafter on the balance in favor of the party to whom it may be due.</p> <p>Where one of two parties having mutual dealings kept a running book account of the samé, and from time to time balanced the account and brought down a credit or debt balance against one or the other without including interest, there was no implied promise or understanding that interest would not be charged on annual balances.</p>

Action on the Case for personal injuries. There was a hearing on defendant’s demurrers to plaintiff’s replications after the September Term, 1915, Windham County, before Fish, J., and the demurrers were severally overruled. The defendant electing to abide by its demurrers, at the April Term, 1916, Windham County, Miles, J., presiding, judgment was rendered against the defendant on all of the demurrers, and the case ordered to stand for trial on the question of damages.

<p>Assumpsit eor Rent. Plea, the general issue. Trial by Burlington City Court, C. S. Palmer, Judge. Judgment for the defendant. The plaintiff excepted. The opinion states the case.</p>

<p>Habeas Corpus — Issuance of Writ Without Recognizance for Costs — Costs Dependent on Statute.</p> <p>A writ of habeas corpus is not a “writ of summons” within the meaning of G. L. 1707, and can issue without the recognizance for costs required therein.</p> <p>Costs are taxed and allowed only hy force of the statute.</p>

Appeal in Chancery. Bill to determine the rights of the respective parties to the real estate therein described. Heard on the special master’s report after the April Term, 1918, 'Windham County, Pish, Chancellor. Decree for the plaintiffs. Defendant Delbert A. Boynton appealed. The opinion states the case.

Action op Ejectment. Plea, tbe general issue. Trial by jury at the December Term, 1918, Bennington County, Fish, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case.

Case eor Negligence under the Federal Employers’ Liability Act. Plea, the general issue. Trial by jury at the April ‘Term, 1918, Essex County, Slack, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The-opinion states the case.

<p>Landlord and Tenant — Lessee Holding Over — Holds Subject to Terms of Original Lease — Tenmcy by Implication — Original Lease Evidence of Terms — Conveyance of Tenant’s Interest — Conveyance of Greater Interest Than Grantor Owns —Waiver of Exceptions — Motion for Verdict — Ground Not Raised Below.</p> <p>A tenant for a fixed term, by holding over after the expiration of his lease with the consent and acquiescence of the landlord, becomes a •tenant Fat will or from year-to year? and, in the absence of an agreement to the contrary, holds the premises subject to all the covenants and conditions of the original lease.</p> <p>Note: — When this case was originally argued it was assigned to Mr. Justice Haselton. Upon his retirement from the bench, the case, being ordered for reargument, was assigned to Mr. Justice Slack.</p> <p>"Where a tenant holds over after the expiration of his lease, very slight acts on the part of the landlord or a slight lapse of time are sufficient to conclude the landlord’s election'and make the occupant his tenant.</p> <p>Where a tenancy by implication is created by the tenant holding over with the consent of the landlord, the original lease is proper evidence of the covenants and conditions of such tenancy.</p> <p>Where a tenant, under the terms of his lease, erected a building on the leased land, he had, during the tenancy, an interest in the building and leased land that he could convey by deed.</p> <p>A deed which purports to convey a greater interest in land than owned by the grantor will operate as a conveyance of all the interest he had.</p> <p>A defendant waives his exceptions to the ovei ruling of his motion, for a directed verdict at the close of plaintiff’s evidence by proceeding with the trial.</p> <p>Grounds of exceptions not briefed are waived.</p> <p>A ground for a directed verdict that was not before the trial court because of the erroneous exclusion of certain evidence, will not -be considered on review.</p>

<p>■Fraud — Reliance On Representations — Inferred from the Circumstances — Jury Question — Purchaser’s Right to Rely Upon Representations — Sufficiency of Evidence.</p> <p>Tbe question raised by an exception to the submission of a case to the jury on the ground that there is no evidence, is the same as if it had been raised upon a motion for a verdict.</p> <p>In an action for deceit, reliance upon defendant’s representations need not be proved by direct evidence, but may be inferred from the circumstances; and where the' representations were material and calculated to induce the plaintiff to take a certain course of'action .with regard to their subject-matter, the question whether he relied thereon in so doing was for the jury.</p> <p>The plaintiff had a right to rely upon the false representations of the defendant • although he could have discovered their falsity by an . investigation. , •</p> <p>Although the plaintiff did not directly testify that he relied upon the false representations of the defendant in purchasing the farm, in question, his testimony that he took defendant’s word when,the latter said that he would later show him certain material things about the farm, taken in connection with the evidence of the misrepresentations themselves, was sufficient to warrant the jury in finding that the plaintiff did rely upon them in making the purchase.</p>

<p>Wills — Life Estate With Limited Power of Disposal — Trusts— Accounting.</p> <p>Where a will gave the residue of testator’s property to his daughter during her natural life, and, if she died without children, the same to be divided between certain benevolent societies, and it provided that she might use whatever of the estate that might be necessary for her support and comfort, the daughter took a life estate and not a fee.</p> <p>In an accounting by the trustee of the residue of said testator’s property, held, that the claim of the trustee that the trust had been fulfilled by his turning over, and by the daughter receiving, the trust fund as necessary for her support and comfort, was not sustained by the findings.</p>

<p>Exceptions Not Briefed Waived — Bight to Go to Jury After Motion for Verdict — Verdict Directed When No Conflicting Evidence — Chattel Mortgages — General Title in Mortgagee ■ — Possession of Mortgagor Permissive — Sale by Mortgagor in Possession —Close Jail Certificate — Malicious Injury to Personal Property — Discharge in Bankruptcy.</p> <p>An exception to the overruling of a motion for a directed verdict is waived by not being briefed.</p> <p>Merely moving for a directed verdict in his favor is not a waiver of a party’s right, if such he has, to have the case submitted to the jury.</p> <p>Where both parties moved for a directed verdict at the close of plaintiff’s evidence, and there was no conflict in the evidence nor any dispute as to the facts which made a prima facie case for the plaintiff, there was nothing for the jury, and a verdict for the plaintiff was properly directed.</p> <p>A mortgage of personal property operates as an absolute sale by the mortgagor to the mortgagee subject to the right to redeem according to the terms of the contract, and passes the general title to the property to the mortgagee.</p> <p>The possession of mortgaged personal property by the mortgagor is permissive and not a matter of right.</p> <p>A mortgagor in possession of mortgaged personal property 'has no better right to sell the same and appropriate the.proceeds of the sale to his own use than he has to so dispose of any other of the mortgagee’s property that may come into his possession permissively.</p> <p>The disposal of another’s property without his knowledge or consent, done intentionally in disregard of what one knows to be his duty, to the other’s injury, is a wilful and malicious injury to property within the meaning of section 17 (2) of the Bankruptcy Act.</p> <p>Where mortgaged personal property is sold by the mortgagor in possession, the mortgagee is not obliged to follow the property, but can pursue his remedy against the mortgagor for damages for the conversion.</p> <p>Where a mortgagor in possession of mortgaged personal property sold the same and appropriated the proceeds of the sale to his own use without the consent or knowledge of the mortgagor, in an action by the mortgagee against the mortgagor for the conversion of the property, the court was justified in certifying that the cause of action “arose from a wilful and malicious injury done by the defendant to the personal property of the plaintiff.”</p> <p>A conversion of property may be committed in such circumstances as to be barred by a discharge in bankruptcy.</p>

Action ok Tort for assault and battery. Plea, the general issue. Trial by jury at the April Term, 1918, Windham County, Fish, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. This Court has repeatedly held that a judgment will not be reversed because an improper question was asked. State V. Burpee, 65 Vt. 1; Houston v. Brush, 66 Vt. 331; State v. Buck, 74 Vt. 29; Carpenter v. Corinth, 58 Vt. 214; Smith v. Ins.

<p>Construction of Wills — Beal Estate Ordered Converted into Money Considered Personal — Bequests of Same — Harmless Evidence — Failure to Find Hm'mless — Law of Domicile Settles Distribution of Estate — Powers of Cou-rt of AncillaA'y Administration — Devisee Must Give Full Effect to Will — ■ Election by Taking Under Ancillary Administration Decree —Election Depends Upon Acceptance.</p> <p>In the construction of wills in which real estate is ordered to be sold and turned into money, courts of equity will consider it as personal.</p> <p>To work a conversion of a testator’s real estate into personal while the property remains unchanged in form, there must be a clear direction to convert it.</p> <p>Where the bequests in a will are of the avails of real estate, and not of the. real estate itself, and do not take effect until after the sale of the same, the real estate is to be considered personal.</p> <p>Where a will made real estate in another state personal for the purpose of distribution, a finding that testator’s property in said state included both real and personal is colorless, and the admission of an inventory so classifying said property was harmless.</p> <p>Where there are figures and statements in the case from which certain facts can be ascertained, the court’s 'failure to find such facts, if error, was harmless.</p> <p>A court of ancillary administration, though acting within its jurisdiction, cannot oust the courts of the state where the testator had his domicile of its jurisdiction to construe his will and finally settle his estate according to the laws of the domicile.</p> <p>A court where ancillary administration is taken out has authority to settle and adjust the accounts of the administrator appointed by it for property received by him under his appointment, and it is discretionary with that court to order distribution there, or to remit the effects of the testator, after the payment of debts and expenses in that state, to the place of the principal administration for that purpose.</p> <p>The distribution of, and succession to, personal property wherever situated are governed by the laws of the owner’s domicile at the time of his death, and the final settlement and distribution of the estate is to be according to the laws of that domicile.</p> <p>One who accepts of a devise or bequest does so on condition' of conforming to the will and is bound to give full effect to that instrument so far as he can, whether the testamentary provision accepted be in lieu of some right, or'as a mere bounty.</p> <p>Where a court of ancillary administration in another state, in accordance with its laws, decreed personal property to the testator’s heirs contrary to his intentions as clearly expressed in the will,' and they accepted the same, they hold the property by way of election against the will, under the laws of Vermont, the testator’s domicile.</p> <p>Where the probate court decreed that the heirs should indemnify the other beneficiaries- under the will for the loss they sustained by such election, which is satisfactory to the beneficiaries, the decree will be affirmed without deciding whether the heirs, by such election, forfeited the whole of their bequests under the will.</p> <p>Election depends upon acceptance of either the provisions of the will or of some right opposed to those provisions.</p> <p>Where a legatee accepted a sum decreed to him as heir by a court of ancillary administration contrary to the intention of the testator, he thereby elected to take against the will, although he had no part in securing the decree.</p>

<p>Municipal Corporations — Liability for Injury from Defective Sidewalk.</p> <p>In an action against a city for injuries received from a defective sidewalk wliicli the defendant was bound by law to keep in safe repair, a finding that the defendant was negligent in the care thereof, was, in view of a judgment below for the defendant, and of the fact that the care of public streets, including sidewalks, is a governmental function, in effect a finding that the officers having charge of the repair of the sidewalk were negligent, and not the defendant.</p> <p>The mere fact that a governmental duty, such as caring for the public streets and walks, is imposed upon a municipality, in the absence of any statute to that effect, does not render the municipality liable for an injury resulting from the neglect of that duty.</p> <p>In such case the negligent acts and omissions are deemed those of the officers having charge of the matter, who are considered as acting in behalf of the State in the performance of governmental functions; and no action lies against the municipality.</p>

<p>Appeals from Public Service Commission — How Taken — Poiuer to Extend or Modify Statutory Requirements — Nature of Appeal in Chancery — Effect of Exceptions — Swing Exceptions in Chancery Case — Failure to Brief Exceptions — ■ Eminent Domadn — Measure of Damages — Separate Parcels of Beal Estate Constituting One Enterprise — Burden of Proof on Owner — Examination of Transcript to Supply Omissions — Judicial Notice of Limber Business — Specific Findings not Necessary — Method of Assessing Damages.</p> <p>Under G. L. 5038, 1561, an appeal from the final order of the Public Service Commission is taken in the same manner as a chancery appeal, except that the written motion must be filed with the commission or its clerk, and not with the clerk of the court.</p> <p>These provisions being statutory, neither the Public Service Commission nor the Supreme Court has any power to extend the time or modify their requirements.</p> <p>Where an order of the Public Service Commission was made and filed on June 21st, and the plaintiff filed its appeal with the commission’s clerk on July 11th, and, on that day, the defendant filed an appeal with the county clerk, and on July 12th filed an appeal with the commission’s clerk, the plaintiff’s appeal was timely, but the defendant’s appeal was too late; July 11th being the last day for filing an appeal.</p> <p>Where the requirements of a valid appeal are statutory, the jurisdiction of the Supreme Court depends upon a compliance therewith, and cannot be conferred by agreement or waiver, express or implied.</p> <p>An appeal in chancery partakes of the nature both of an appeal in its full and Civil Law sense and of a writ of error, but is unlike the former in that it brings up for review questions of law only, and is unlike the latter in that it brings up for review the whole case.</p> <p>An appeal in chancery vacates the decree, and brings up for consideration on review all exceptions properly saved by both parties.</p> <p>When a bill of exceptions is allowed and filed, the judgment of the court below is not vacated, but remains valid until reversed or annulled; and only the assignments of error of the excepting party are brought up for review.</p> <p>Since G. L. 5038 provides that an order of the Public Service Commission shall not be vacated by an appeal, appeals from its orders stand in Supreme Court like cases there on exceptions, and the appeal by one party does not take up the other party’s assignments of error.</p> <p>A failure to brief exceptions amounts to a waiver of them, which cannot be recalled without leave of the court.</p> <p>Exceptions in hearing before the Public Service Commission are saved in the manner provided by statute (G. L. 1511, 1609) for trials before a chancellor.</p> <p>In condemnation proceedings, where two or more pieces of real estate, though separated by an intervening fee, are used as one enterprise, and constitute fairly necessary and mutually dependent elements thereof, they are considered a single parcel, and the taking of one necessitates payment for the injury to the others.</p> <p>In such case, damages are to be assessed by comparing the value of the whole enterprise before the taking with the value of what remains of it-after the taking.</p> <p>The question whether separate parcels of land are used as one enterprise is one of fact, and the burden lies on the owner to establish his claim in such behalf.</p> <p>On appeal from an order of the Public Service Commission .the Court cannot examine the transcript to supply a necessary fact, but it must appear from the commission’s findings.</p> <p>The Court will take judicial notice of the well-known course of business usual in lumber manufacturing enterprises.</p> <p>Specific findings that a mill was equipped with hardwood machinery and that hardwood was then being cut were not necessary to support a finding that noncontiguous hardwood and softwood parcels of land were parts of a single lumber manufacturing enterprise.</p> <p>The award of damages was properly arrived at by adding to the value of the land taken the injury to what remained.</p>

<p>Criminal Law — Pleading—Sufficiency of Information.</p> <p>A complaint charging that respondent did “sell intoxicating liquor without authority” is bad because it may apply to one of several definite offences without specifying which, and therefore does not sufficiently inform the accused of the particular offence charged.</p>

<p>Indictment for murder. Plea, not guilty. Trial by jury at the September Term, 1918, Orleans County, Wilson, J., presiding. Verdict, guilty of murder in the first degree. The respondent excepted. The opinion states the case.</p> <p>Mere weakness of mind, or the possession of an intellect of an inferior order, is not of itself sufficient to excuse the perpetration of a criminal act. 14 R. C. L. 603; Rogers v. State, 128 Ga. 67, 10 L. R. A. (N. S.) 999, and note; Patterson v. People, 46 Barb. 625; Wwrtena v. State, 105 Ind. 445, .5 N. E. 20; Dean v. State, 105 Ala. 21, 17 South. 28.</p>

<p>Secondary Evidence of Contents of Hotel Register — Wills—Undue Influence — Evidence—Failure to Comply with Requests to Charge — Sufficiency of Exception — Charge on Undue Influence — Exceptions Waived by Failure to Brief Them.</p> <p>Parol evidence of tbe contents of a hotel register was properly excluded where no foundation was laid for the reeepit of such secondary evidence.</p> <p>In a will contest on the ground of undue influence, statements by the person claimed to have ■ exercised the undue influence of her confidence in her ability to influence the testator were properly excluded as immaterial.</p> <p>In such case, evidence fairly and reasonably tending to show hostility on the part of the person claimed to have exercised the undue influence toward the contestant, entertained at or within a reasonable time before the date of the will in question, might be admissible.</p> <p>But where the evidence claimed to show such hostility had reference ■ to a will made by the testator more than twenty years before the execution of the will in question, and might have as well indicated a disposition toward fairness to the other relatives of the testator as hostility to the contestant, its exclusion was not error.</p> <p>Where a party regards a charge as given as an insufficient compliance with his requests, he should call the court’s attention to the particular in which it is faulty.</p> <p>The test of the sufficiency • of an exception to a charge is whether it fairly directed the attention of the court to the claimed, error.</p> <p>An exception to the court’s charge on undue influence is without merit where the charge, taken as a whole, was that the influence must be effective at the time the will is made.</p> <p>Exceptions, to be considered by the Court, must not only be briefed, but must be adequately briefed.</p>

<p>Bills md Notes — Negotiable Instruments Act — Indorser’s Liability — Necessity of Demand, Notice, and Protest — Necessity for Stating Position on Motion for Directed Verdict— Ground not Raised Below not Considered.</p> <p>C. gave the plaintiff a promissory note payable at and to a certain bank, the defendant having written his name across the back of it before delivery. Plaintiff wrote his name under that of the defendant’s, and received the avails of the note from the bank. The note in suit was a renewal of the original note. On the day it fell due defendant paid the bank a part of it, and later in the day plaintiff paid the balance, and immediately brought suit to recover what he had paid. A verdict was directed for the defendant on the ground that there was no evidence tending to show presentment, dishonor, and notice, fiel cl,</p> <p>(1) That the rights of the parties were controlled by the Negotiable Instruments Act (G. L. Chap. 140);</p> <p>(2) That as to the bank the parties were indorsers (G. L. 2932, 2933), and parol evidence was not admissible to show otherwise;</p> <p>(3) That under G. L. 2935, an indorser’s engagement is to pay provided the note is seasonably presented to the maker, and he is seasonably notified of the maker’s default;</p> <p>(4) That an indorser’s undertaking is conditional, and ordinarily a demand and notice are conditions precedent to a right of action against him (G. L. 2940, 2958), though under G. L. 2987, protest is not necessary;</p> <p>(5) That if defendant’s liability on the note was discharged for want of presentment and notice, the subsequent payment by the plaintiff could not revive it;</p> <p>(6) That prima facie the parties were liable as indorsers of the note in the order in which they indorsed, but parol evidence was admissible, as between themselves, to show what the agreement of indorsement was (G. L. 2937), and this, though the order of their signatures on the note renewed was reversed;</p> <p>(7) That while it was necessary for the defendant in the court below to specify the grounds on which his motion for a directed verdict was predicated, it was equally necessary for the plaintiff to specify the grounds of his opposition to it;</p> <p>(8) That the Court will not consider a ground of opposition to the motion for a directed verdict that was not raised helow.</p>

<p>Railroads — G. L. 5168 — Duty to Repair Highway Bridge — Jurisdictional Facts Implied from Facts Expressly Found — Constitutional Law — All Contracts and Charters Subject to Police Power — Power of Legislature to Bind Its Successor.</p> <p>Under G. L. 5168, providing that a railroad whose track crosses the traveled path of a highway shall repair and rebuild bridges and other constructions made for the accommodation, safety, and convenience of the public travel, a railroad is required to keep in repair a highway bridge forming a part of the highway at the point where it is crossed by the railroad’s overpass.</p> <p>While, on an appeal from an order of the Public Service Commission, all necessary jurisdictional facts must be shown by the record, it is not necessary that they appear by express findings, but it is sufficient if they appear by necessary implication from the facts expressly found.</p> <p>That a bridge was built and used for the safety and convenience of public travel on a highway at a point where the highway is crossed by a railroad’s overpass, affirmatively appears from the findings that the bridge is directly under the overpass; that there is a highway there; and the bridge is spoken of as a “highway bridge.”</p> <p>EVery contract made, and every charter granted, regardless of its stipulations, is subject to the police power of the State of which the Legislature cannot divest itself; nor can one Legislature bind its successor by any contract to the contrary.</p> <p>G. L. 5168, having been passed in the exercise of the police power, a railroad is subject to its provisions, although its original charter granted prior thereto prescribed the terms and conditions on which it could cross a public highway, and contained no reservation of legislative authority to alter, amend, or repeal it.</p>

<p>Principal and Agent — Evidence of Agency in Contract of Sale.</p> <p>Defendant closed a trade with a sugar company for the purchase and delivery of two lots of sugar. Later the sugar company contracted with the plaintiff to ship the sugar to defendant, and to bill the same direct to the defendant, and to credit the sugar company with its profit, which the plaintiff did. Later the defendant paid the sugar company for the sugar. In a suit brought against defendant for the price of the sugar, the court below found that in the transactions the sugar company acted as the agent of the plaintiff, " who was then an undisclosed principal. Held,</p> <p>(1) That, the contract between the sugar company and defendant having been made and their rights thereto fixed and vested before the alleged agency was created, no arrangement between the sugar company and the plaintiff alone could affect the status of the former when, acting for itself, it dealt with the defendant;</p> <p>(2) That there was no evidence sufficient to support the finding of agency.</p>

<p>Chancery — Exceptions to Rulings on Admission of Evidence not Saved When there are no Exceptions to Findings — Questions Determined by Transcript — Failure to Report Testimony — Decree Must Conform to Pleadings and Findings— Deeds — Construction—Intent of Parties — Particular Description Controls — Deeds Referred to by Deeds in Evidence —Ownership of Boundary Land Not Shown by Record— Estoppel Not Considered Unless Raised Below> — Burden of Proof on Plaintiff to Show Title — Supreme Court — Authority to Modify Decree.</p> <p>Where the plaintiff excepted to rulings of the chancellor on the admissibility of evidence but the record does not show that exceptions were taken to the findings because of such rulings, those questions are not before the Court.</p> <p>Where the transcript of the evidence is referred to and made controlling only as to the plaintiff’s exceptions to the admission and exclusion of evidence, it is not before the Court for the purpose of determining the merit of exceptions to the findings.</p> <p>No question was saved by an exception to the findings because the chancellor neglected to report testimony as requested, where the record fails to show what the request was, or that there was a request; and it will be assumed that the findings are supported by the evidence.</p> <p>A decree must conform to the pleadings and findings, and where the question of an easement was not raised by the pleadings and was not in issue at the hearing, the part of the decree relating thereto was not warranted.</p> <p>In a construction of a deed the intention of the parties must govern if it can be ascertained from its language.</p> <p>In a deed containing a particular description, clearly fixing a boundary as “a line two feet easterly of the foundation wall,” and a general description, “being all and the same land and premises conveyed to the deceased by,” etc., the particular description must control.</p> <p>Deeds referred to by deeds that are in evidence will not be considered by the Supreme Court when they were not received in evidence by the court below.</p> <p>The claim that boundary land described in a deed as “land of P.” is the same now owned by C. cannot be sustained when there is nothing in the record to show who P. was, or what land he owned, if any.</p> <p>Estoppel, to be conclusive, must be pleaded where possible, and, where ■ it cannot, it may be given in evidence, but it will not be considered by the Supreme Court unless raised in some form in the trial court.</p> <p>In a suit to enjoin the erection of a building on land claimed by the plaintiff, and to remove a cloud to the title, the plaintiff had the burden of showing title to the land in question, and,.having failed to do this, the bill was properly dismissed.</p> <p>Where a decree is too broad a reversal is not necessary, as the Supreme Court has the authority under G-. L. 1564 to alter the same to conform to the pleadings and findings.</p>

<p>Estates of Decedents — Time for Presentation of Claim — Power of Court to Extend Time — Pleading—Allegation of Understanding as to Presentation of Claim Insufficient to Charge Agreement — Insufficient Excuse for Failure to Present Claim.</p> <p>Where the plaintiff did not present his claim to the commissioners on a decedent’s estate within the life of the original commission, the further time given to the commissioners, on its renewal, within which to receive the claim being expressly limited by G. L. 3295 to three months, neither the probate court nor the' court of chancery had the power to extend the time.</p> <p>In a bill seeking tbe aid of tbe court of chancery in obtaining a bearing before tbe commissioners of a decedent’s estate where tbe plaintiff, on tbe renewal of tbe commission, failed to present bis claim within tbe time limited in tbe statute, an allegation that “it was understood” that an original claim presented in tbe name of a third party was to be considered tbe plaintiff’s claim, does not refer to an understanding on tbe part of tbe commissioners.</p> <p>Tbe allegation that tbe plaintiff understood that tbe original claim was to be treated as bis would not alone amount to a presentation of bis claim.</p> <p>Plaintiff’s understanding from tbe judge of probate or from one of tbe commissioners that tbe original claim would be treated as bis was no excuse for neglecting to present bis claim within tbe time limited in tbe statute.</p>

<p>Supreme Court Rules — Power of Lower Court to Abrogate— Process — Defects Not Apparent of Record Not Reached by Motion to Dismiss or Abate — Exception to Refusal to Find— Absence of Evidence — Failure to State Grounds in Motion for Judgment.</p> <p>An order of the court below that certain motions, affidavits, etc., referred to in the exceptions, need not be printed provided copies are furnished the Court, does not relieve the excepting party from compliance with Supreme Court Rule 5, since the trial court has no authority to set aside, or take a case out of, the rules of the Supreme Court.</p> <p>Defects in the issuance and service of a writ which are not apparent of record cannot be taken advantage of by a motion to dismiss or abate, but only by a plea upon which an issue can be formed.</p> <p>Where the evidence is not before the Court, an exception to the refusal of the trial court to find in accordance with certain requests presents nothing for review.</p> <p>Under an exception to the trial court’s overruling his motion for a judgment, where no grounds of the motion were stated, a party cannot rely upon the claim of want of certain evidence, since such claim was not made below.</p> <p>Where the evidence is not before the Court, it will not consider the .claim of want of certain evidence in support of a party’s motion for a judgment at the close of the evidence.</p>

<p>Hearsay Evidence Admitted Without Objection — Depositions— Notice to Nonresident Tandy’s• Attorney — Nonresidence of Party Must Appear — Presumption that Court Passed Upon Question of Residence — Deposition Wrongfully Excluded— Reversible Error.</p> <p>Hearsay evidence admitted without objection was properly considered.</p> <p>'The right to use a deposition in evidence is wholly statutory, and all the essential requirements of the statute, including notice to the adverse party, must be complied with, and it is only when the party to be notified resides without the State that service can lawfully be made, on his attorney.</p> <p>To make a notice to a nonresident party’s attorney of the taking of a deposition effective, such nonresidence must be made to appear, and this is usually shown by the officer’s return of the service of the citation, but it may be shown, as it was in this case, in the body of the citation.</p> <p>A citation to take a deposition is a formal notice, and it can be made to run against a nonresident party’s attorney as well as against the party.</p> <p>The question of residence is a preliminary question of fact for the trial court, and ordinarily it will be assumed, in support of the ruling below, that the trial court found this fact against the excepting party, but not where, as here, the transcript is referred to and made controlling, and from it it appears that this question was not passed upon below.</p> <p>Where a deposition which contained testimony upon the vital issue in the case should have been admitted, its exclusion was reversible error.</p>

<p>Banlcs — Bights as Holder of Notes as Collateral — Bights as Pledgee of Notes — Direction of Verdict for Plaintiff — Exceptions Not Briefed by Either Party.</p> <p>N. deposited with the plaintiff a note running to it, signed by himself, defendant, and another, as collateral security for the payment of all obligations he might be owing plaintiff. Later N. agreed with plaintiff that it might treat all of his collateral notes as general collateral for all of his present and future indebtedness to it, direct and indirect, and apply the same as it might elect to the extinguishment of any part of such indebtedness. Later the plaintiff became the owner of notes given by N. to M. and to R., in accordance with the understanding of the parties at the time they were given, and paid them from the proceeds of N.’s collateral, leaving unpaid debts against N. which were outstanding at the time the notes to M. and R. were given. In a suit to recover on the note signed by the defendant, held,</p> <p>(1) That the note in suit never constituted or represented a debt due from any of the makers to the plaintiff, but was a pledge, and the ■ plaintiff’s rights relative thereto were those of a pledgee, incident thereto;</p> <p>(2) That an agreement made at the time N. executed the notes to M. and R. and delivered them to the plaintiff, that none of the proceeds of the collateral held by the plaintiff should be used in payment of the notes to M. and R. until all other indebtedness then held by the plaintiff against N. had been fully paid constituted no defence to the note in suit, since it was no part of N.’s indebtedness to the plaintiff;</p> <p>(3) That the plaintiff having made out a prima facie ease and rested, and no evidence afterwards appearing to change the result, a ver- ■ diet was properly directed for the plaintiff.</p> <p>Where neither party takes notice of an exception in their briefs, it will not be considered by the Court.</p>

<p>Appeal from an order of the Probate Court for the District of Bennington renewing the commission on the estate of William R. Morgan. Heard on the appellee’s motion to dismiss the appeal at the December Term, 1915, Bennington County, Butler, J., presiding. From an order dismissing the-appeal the appellant excepted. The opinion states the case.</p>

Assumpsit by tbe plaintiffs, as executors of tbe last will and testament of one Richard M. Houghton, to recover of the defendant Savings Bank a certain deposit claimed by them as the property of said estate, and also claimed by the claimant, Charles A. Maurer, as his property. Trial by jury at the December Term, 1918, Bennington County, Fish, J., presiding. Verdict and judgment for the claimant. The plaintiffs excepted. The opinion states the case.

<p>Laying Out of Highways — Proceedings in County Court — Bevieit)‘ — Reversal Only in Case of Substantial Injustice— Opinion Evidence as to Necessity of Highway — Harmless Error — Commissioners’ Report — Recommendations Not in Excess of Jurisdiction — Jurisdiction of County Court — ■ Order Exceeding Jurisdiction Void.</p> <p>In county court proceedings to lay out a highway pursuant to the provisions of G. L. 4419-4429, the propriety and necessity of establishing a highway in a particular place is a question of fact, which in the last resort is to be determined exclusively by the county court.</p> <p>In such case, review on exceptions is provided for by G. L. 2257, under the provisions of which the judgment of the county court is not to be reversed unless it is made to appear that substantial injustice has been done to the excepting party.</p> <p>On a hearing before commissioners as to the laying out of a highway, it was error to permit a witness to testify that the establishing of the highway would be for the public good and the convenience of individuals.</p> <p>It was not reversible error for the court to decline to reject the commissioners' report recommending the laying out of the highway because of the admission of such evidence, because it does not appear that it resulted in any substantial injustice to the excepting party, and it will be inferred that the court found the question of public good and tbe convenience of individuals established by other evidence.</p> <p>The commissioners did not exceed their jurisdiction in recommending in their report that a plank walk should be constructed on one side of the proposed highway, as to its grade, that a bank wall should not be constructed on one side, and as to surfacing material, since the court could reject or accept such recommendations if they were matters within its jurisdiction.</p> <p>The county court has no authority or jurisdiction in reference to laying out highways, except such as is conferred by the statute, and can exercise its jurisdiction over the subject-matter only in the manner and to the extent prescribed by the statute.</p> <p>Where the court incorporated matters outside its jurisdiction in its order establishing a highway, the order was void to that extent, and, since such matters affected a substantial right of one of the excepting parties, it was1 reversible error as to that party.</p>

<p>Court Will Not Search Transcript for Evidence — Exclusion, of Evidence — Failure to Make Offer — Declaration of Tenant in Common Not Admissible Against Cotenant — Equity—Poiver to Retain Case for Final Disposition — Easements—Not Acquired by Permissive JJse — Adverse Possession — Land Held for fffious Ese — Presumption of Grant — Land Conveyed in Trust — When Beneficiary Treated as True Owner.</p> <p>Where the excepting party claims that the chancellor should have made a requested finding of fact but does not call attention to any evidence justifying such finding, the transcript will not be searched to see whether the chancellor should have complied with the request, but it will be assumed that the request was properly denied.</p> <p>Where no offer of evidence is made on the exclusion of a question, no question is saved for review. .</p> <p>The declaration of a tenant in common, not made in the presence and hearing of his cotenants, is not admissible against them.</p> <p>The rule that once equity has taken jurisdiction of a case it will retain it for all purposes and dispose of the whole matter, is confined to cases where equity jurisdiction has been rightfully invoked for that purpose.</p> <p>Where all the facts necessary for equitable jurisdiction are lacking, the court of chancery will not make a decree establishing the location of a disputed boundary line.</p> <p>The plaintiff acquired no right to cross defendant’s land by use, however long continued, where it was found that the use was permissive and not under a sufficient claim of right.</p> <p>Under the provisions of G. L. 1875, title cannot be acquired by adverse possession to land granted and held for a pious use.</p> <p>Where the plaintiff alleged and attempted to prove the right to occupy the defendant’s land under such an arrangement that it would be inequitable for the defendant to terminate it, such position was wholly inconsistent with a claim of title in himself, and precluded any presumption of a grant.</p> <p>Where land was deeded to a trustee for the benefit of a church society, and he had no active duties to perform and was without power to take possession, or to manage or to exercise any control oyer the property, the beneficiary will be treated as the true owner.</p>