Volume 94 — Vermont Reports

<p>War Prohibition Act — Intoxicating Liquors — Police Poivers— Power of Congress to Enact — Power of States to Enact— When State Law Yields to Act of Congress — State Liquor Law Not Affected by War Prohibition Act — Same Act May Constitute Offence Against United States and, State.</p> <p>1. The provision of U. S. Comp. Stat. § 1233, that exclusive jurisdiction of all crimes and offences cognizable under authority of the United States, unless otherwise provided for, is vested in the courts thereof, was not affected by the War Prohibition Act, approved November 21, 1918.</p> <p>2. In enforcing G. L. 6558, prohibiting the unlicensed traffic in intoxicating liquor, the State acts within the sphere of a power expressly reserved to it, and not under an implied authority to exercise a power delegated to Congress by the Federal Constitution until Congress shall see fit to exert its paramount authority.</p> <p>3. The State may exercise any power possessed by it prior to the adoption of the Federal Constitution unless such exercise is prohibited thereby, or interferes with the exercise of some power delegated to the United States.</p> <p>4. Congress has no general power to enact police regulations operative within the territorial limits of a state; that power having been left with the individual states, and it cannot be taken from them, either wholly or in part.</p> <p>5. The exercise of the police powers by the State is unqualified and exclusive, so long as its regulations do not invade, obstruct, or impede the exercise of any authority confided to the nation by the Federal Constitution, or deprive a citizen of rights guaranteed to him thereunder.</p> <p>6. The police power of the State is but another name for the power of government; it is inherent in the State and is not a grant derived from or under a written Constitution; it is so essential that the State cannot divest itself of its right or duty in respect of its full exercise, nor can the Federal Government interfere in that exercise except by virtue of some Consitutional authority.</p> <p>7. Subject to Constitutional limitations, the Legislature, in the exercise of the police power, may pass measures for the general welfare of the State, and is itself the judge of the necessity or expediency of the means adopted.</p> <p>8. A state law enacted under any of the reserved powers is not to be set aside as inconsistent with an act of Congress unless there is actual repugnancy, or unless Congress has at least manifested a purpose to exercise its paramount authority over the subject.</p> <p>9. A state statute prohibiting an act as a police measure is not invalidated by an act of Congress prohibiting the same act as a war measure if the former can be upheld and enforced without obstructing or embarrassing the execution of the latter.</p> <p>10. Though a state police regulation must yield to a valid act of Congress, it yields only when and to the extent that its enforcement conflicts therewith or with the exercise of rights conferred, or the discharge of duties. enjoined, by the paramount act, and to the extent that they are in harmony, the acts are concurrent, the one supplementing the other.</p> <p>11. G. L. 6558, was not suspended or abrogated by the passage of the War Prohibition Act; the express reservation in the act to the states of the exercise of their police powers not being necessary.</p> <p>12. The same act may constitute a criminal offence equally against the United States and the State, subjecting the guilty party to punishment under the laws of each, provided the act is one over which both sovereignties have jurisdiction.</p>

<p>Action of Tort to recover damages for the negligent handling of the dead body of the plaintiff’s minor child. Plea, the general issue. Trial by jury at the September Term, 1917,-Franklin County, Waterman, J., presiding. At the close of the plaintiff’s evidence a verdict was directed for the defendant. The plaintiff excepted. The opinion states the case.</p>

<p>Petition for divorce on the ground of desertion. The proceeding was uncontested. Trial at the June Term, 1919, Caledonia County, Stanton, J., presiding. After hearing, 'the Court dismissed the petition on the ground that the libellant had not been a resident of the State for the period of two years as provided by G. L. 3561. The libellant excepted. The opinion states the case.</p>

<p>Unresponsive Answer — Deceit—Evidence—Admissions—Letters Proving Knoiuledge — Failure to Charge in Absence of Bequest or Exception — Evidence as Part' of Principal Transaction — Harmless Error — Questions not Considered on Be-view — Cross-examination—Court’s Discretion — Offer to Purchase as Evidence of Value — Subsequent Acts Inadmissible — Evidence as to Mismanagement of Corporation — Failure to Make Offer on Exclusion of Evidence — Bemarks of Counsel — Failure to Properly Charge.</p> <p>1. It is not error to strike out an unresponsive answer although it may be pertinent to the inquiry.</p> <p>2. In an action for deceit in the sale of stock in a telephone company, documents of the company showing one of the defendants charged with the stock sold to the plaintiff, and credited with commissions, were admissible against him as prima facie evidence of an admission; the circumstances being such that it could be inferred that he was conversant with their contents.</p> <p>3. A letter written by a defendant after the sale of the stock in question, which, in connection with his testimony, tended to prove that the defendants knew that the company was in financial difficulties when the stock was sold to the plaintiff, but fraudulently concealed it from him, was admissible.</p> <p>4. It was not error to fail to instruct the jury concerning the use to be made of certain evidence, where there was no request to charge, nor any exception to the failure of the court to-charge, in that regard.</p> <p>5. It was not error to permit the plaintiff to show how his stock was paid for, where the negotiations between him and the one furnishing the money were so related to the principal transaction that they were a part of it.</p> <p>6. Where the question of the admissibility of certain evidence for the purpose for which it was received is not raised, neither that nor any other question as to its admissibility .will be considered.</p> <p>7. The evidence as to the giving of a certain note having been received without objection, the admission of the note was harmless.</p> <p>8. The extent of cross-examination is a matter addressed to the discretion of the trial court.</p> <p>9. It was not an abuse of the trial court’s discretion to exclude evidence that was remote in character.</p> <p>10. A rejected offer of a third party to buy certain of the property in question purchased by one of the defendants as agent of others without the power of disposal, was not admissible as evidence of its value, nor of such defendant’s belief as to its value.</p> <p>11. Evidence that after the sale of the stock in question telephone experts advised one - of the defendants that the company’s prop- • erty was a profitable proposition was inadmissible on the issue of his good faith in selling the stock.</p> <p>12. Plaintiff’s statement, after examining the company’s hooks, that its manager had misappropriated more than $12,000 was admissible on the question of damages and aé impeaching plaintiff’s evidence that the company’s stock was worthless when he bought it.</p> <p>13. An exception to the exclusion of a question is unavailing in the absence of an offer showing what the answer would be.</p> <p>14. Where, after repeated efforts to secure a satisfactory answer from one of the defendants on cross-examination, the examiner remarked, “Dry well,” the allowance of an exception to the remark without further action by the court amounted to an implied ruling that the remark was proper.</p> <p>15. The jury should have been instructed that, in the absence of evidence that R. was the employee or agent of defendant H., the latter was not liable for his false representations unless there was a conspiracy involving him.</p>

<p>Life Insurance Policy — False Answers in Application — Directed Verdict — When Intent to Deceive Inferred — Consideration of Plaintiff’s Exceptions to Admission of Evidence on Reviewing Defendant’s Motion for Verdict — Right of Revocar tion as to Beneficiaries Reserved in Policy — Effect on Beneficiaries — Fratcd—Evidence—Declarations of Insured — Test of Falsity of Answers in Application — Reargument—When Verdict Should Be Directed — Presumption of Innocence on Weight of Proof.</p> <p>1. In an action on a life insurance policy, defended on the ground that the insured’s statements in the application for insurance with reference to illnesses or diseases that he had had since childhood were false and fraudulent, where the undisputed evidence shows that such statements were false to the knowledge of the insured and were made with intent to deceive, the defendant’s motion for a directed verdict should have been granted.</p> <p>2. The statements of the insured being knowingly false, the law will infer an intent to deceive, in the absence of explanation.</p> <p>3. Where declarations of the insured were admitted in evidence subject to plaintiff’s objection and exception, the Court, on reviewing defendant’s motion for a directed verdict which was overruled, may properly inquire as to the admissibility of such declarations.</p> <p>4. Where the insured in a life insurance policy reserves the right of revocation, as to beneficiaries, giving him full control of the policy and the fund during his lifetime, the beneficiaries named in the policy do not have a vested interest therein until the death of the insured.</p> <p>5. In a suit on such a policy for the benefit of the beneficiaries, declarations of the insured tending to show falsity of material statements made by him in the application for insurance are admissible.</p> <p>6. In determining whether an insured truthfully answered certain questions in his application for insurance relative to previous illnesses or diseases he had had, the test is not whether he thought that he was suffering from some particular trouble at the time he consulted a certain doctor prior to the application, but whether his answers were true to'the best of his knowledge and belief at the time they were given.</p> <p>7. A reargument will not-be granted for the purpose of presenting new questions; but if the Court made a material mistake of law in deciding questions of law, a rehearing may he had.</p> <p>8. In every jury case, where fair minded men could not honestly differ as to the conclusion to be drawn from the undisputed facts, it is the duty of the court to decide the question as one of law, and to direct the jury to return the necessary verdict.</p> <p>9. This rule prevails in cases where the issue is one of fraud.</p> <p>10. This rule is not affected by the presumption of innocence, except that.it requires stronger proof in such eases than would otherwise he required.</p>

<p>Unresponsive Answer — Corrective Action of Court — Failure to Save Exception — Impeaching Evidence — Record of Conviction of Crime — Harmless Error — Error Beyond Scope of Exception.</p> <p>1. Where the court acted promptly and effectively in striking out an irresponsive answer by the plaintiff and directed the jury to pay no attention to it, and it does not appear that the plaintiff intended to go beyond the question and' to gain an advantage, nor that the defendant was in fact prejudiced, an exception to the answer will not be sustained.</p> <p>2. No question is reserved where the record does not show that an exception was saved.</p> <p>3. Although it is usual to show the fact by the witness himself on cross-examination, it is within the • discretion of the court, as affecting the witness’ credibility, to admit the record of his conviction of a crime, although it may be a crime not involving moral turpitude.</p> <p>4. In such case, it is error to permit the record of the conviction to be read to the jury.</p> <p>5. Where the record of defendant’s conviction was ‘read to the jury and he excepted to the reading of that part which covered the sentence, and the court immediately withdrew the part excepted to and instructed the jury not to consider it for any purpose, the error was harmless.</p> <p>6. The Court will not consider error beyond the scope of the exception.</p>

<p>Action- of Contract to recover for aid furnished a poor person under G-. L. 4219. Trial by the Montpelier City Court, Washington County, Erwin M. Survey, Judge. Judgment was rendered for the defendant on the ground that the notice given, as provided by G-. L. 4220, was insufficient. The plaintiff excepted.</p>

Appeal in Chancery. Bill to establish the respective rights of the parties in a water system supplying both. Heard on bill, answer, defendant’s cross bill, plaintiff’s replication thereto, and Chancellor’s findings of fact at the September Term, 1917, Rutland County, Fish, Chancellor. Decree for the plaintiff. The defendant appealed. The opinion states the case. A prescriptive right cannot arise from a license. Sanson v. McCue, 42 Cal. 303,10 Am.

Action of Contract on two promissory notes. Pleas, the general issue, special matter in defence, statute of limitations, and the bankruptcy of the defendant James L. Karrick. Heard on a referee’s report at'the September Term, 1918, Chittenden County, Slack, J., presiding. Judgment for the plaintiff against the defendant Plenrietta Brewer Karrick, to which she excepted. The opinion states the case.

Dutton. Heard on exceptions by the plaintiff, a creditor of the estate. The’ estate was settled and the administrator’s account rendered on the theory that the administrator had no control over the store property mentioned in the opinion. The opinion states the facts.

Action op Tort for negligence. Plea, the general issue. Trial by jury at the September Term, 1918, Windham County, Butler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Appeal in Chancery. Bill in the nature of a bill of review to set aside the decree in the ease of William R. Morgan v. Merritt B. Morgan, 82 Vt. 243. Heard on the defendant’s demurrer to the bill at the June .Term, 1917, Bennington County, Slack, Chancellor. Decree sustaining the demurrer and dismissing the bill. The plaintiffs appealed. The opinion states the case.

<p>Two Petitions for writs of certiorari, brought to the Supreme 'Court for Chittenden County,- to review the action of the city council -of the City of Burlington in rescinding the appointments of the petitioners as street commissioners, removing them from that office, and declaring. the offices vacant. The opinion states the case.</p>

<p>Action op Contract on a life insurance policy. Heard by the Court at the March Term, 1919, Chittenden County, Fish, J., presiding. Judgment for the plaintiff. , The defendant excepted. The opinion states the case.</p> <p>The plaintiff is not barred from interposing a legal defence by reason of the fact that it first sought a remedy to which it was not entitled. Dietrich v. Hutchinson, 81 Vt. 168; Priest v. Poster, 69 Vt. 417; Hartland v. Hackett, 57 Vt. 92; Bank v. Taylor, 66 Vt. 574; Johnson v. Worden, 47 Vt. 457; Boot v. Lord, 23 Vt. 568; Cunningham v. Thompson, 111 Mass. 270; Holbrook v. Quinlan, 84 Vt. 411; Oben v. Adams, 89 Vt. 158; Bartlett v. Bonazzi, 91 Vt. 192; Clark v. Heath, 8 L. R. A. (N. S.) 144; Harrell v. Davis, 22 L. R. A. (N. S.) 1153.</p> <p>The burden is on the party setting up estoppel to show affirmatively that he has relied on the conduct of the party against whom he invokes the doctrine of estoppel, and has been induced by it to act or refrain fromi doing so. Drouin v. B. & M. B. B., 74 Vt. 34; Wells v. Austin, 59 Vt. 157; Wakefield v. Crossman, 25 Vt. 298; Boyce v. Carpenter, 80 Vt. 37; Earl v. Stevens, 57 Vt. 474; Thrall v. Lathrop, 30 Vt. 307.</p>

<p>Action op Contract for breach of promise' of marriage. Pleás, the general issue ancl the statute of limitations. Trial by jury at the March Term, 1919, Rutland County, BtUler, J., presiding. Verdict and judgment for the plaintiff for $20,000. The defendant excepted. The opinion states the ease.</p>

<p>Action op Contract. Plea, the general issue and declaration in offset. Trial by court in the Barre City Court, E. William Scotl, Judge. Judgment for the defendant. The plaintiff excepted. The opinion states the ease.</p>

<p>Master and Servant — Workmen’s Compensation Act — Burden of Proof — Injury Arising Out of and in the Course of Employment — Contributory Negligence No Defence — Plaintiff Not Required to Prove Negative — Fact Not Assumed to Reverse Case — Act Liberally Construed.</p> <p>1. In an action under G. L. 5768, of the Workmen’s Compensation Act, to recover compensation for injuries, the burden is on the plaintiff to show, not only that the injury was an accident, but that the accident arose out of and in the course of the injured workman’s employment.</p> <p>2. Within the meaning of G. L. 5768, an injury arises in the course of the employment when it arises Within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment; and it arises out of the employment when it occurs in the course of it, and as a proximate result of it.</p> <p>3. Where a servant employed with his, team was killed by it about the noon hour, after he had eaten his dinner, while attempting to stop the team which was running away, the accident arose out of and in the course of his employment within the meaning of G. L. 5768.</p> <p>4. Contributory negligence does not prevent recovery under the Workmen’s Compensation Act, in view of G. L. 5766.</p> <p>5. There was no burden upon the plaintiffs to show that the deceased employee was not resting or doing something else wholly unconnected with his employment at the time the horses started to run away; they not being called upon to prove a negative.</p> <p>6. The Supreme Court, to reverse a case, will not assume a fact not shown by the record.</p> <p>7. The fact that the horses belonged to the employee would not defeat recovery, because, at the time of the accident, they were hired by the employer, their services belonged to it, and it was materially interested in that service.</p> <p>8. The Workmen’s Compensation Act, being framed on broad principles for the protection of the workman, should receive a liberal and reasonable construction.</p>

Plea, undue influence and fraud. Trial by jury at the June Term, 1919, Bennington County, Butler, J., presiding. Verdict and judgment for the proponent. The contestant excepted. The opinion states the case. An attorney cannot testify as to communications regarding a deed or other instrument which he prepared for his client in the course of such employment. Moore v. Bray, 10 Pa.

Appeal in Chancery. Bill to restrain the further prosecution of a suit at law. Heard on a findings of fact at the December Term, 1918, Orange County, Wilson, Chancellor. Decree for the plaintiff. The defendant appealed. The opinion states the case.

<p>Action oe Trespass on tbe freehold. Plea, the general issue. Heard on a referee’s report at the March Term, 1919, Rutland County, Butler J., presiding. Judgment for the plaintiffs. The defendant excepted, the opinion states the case.</p> <p>The defendant was presumed to be innocent, and, in determining the fact, this legal presumption was evidence in his favor, and the plaintiff was bound to overcome it by a preponderanee of the evidence. Childs v. Merrill, 66 Vt. 302; Stevenson v. Gunnings’ Est., 64 Vt. 601; Currier v. Richardson, 63 Vt. 617; Bradish v. Bliss, 35 Vt. 326.</p> <p>The findings of a referee are not open to attack in the higher court when there is any evidence tending to support them. Harris v. Howard, 56 Vt. 695; Gkrand Isle v. Kinney, 70 Vt. 381; Wilkinson’s Admrs. v. Wilkinson, 61 Vt. 409.</p>

<p>Intoxicating Liquors — Election of Offences — Question Not Raised by Exception to Evidence — Evidence—Commission of Other Crimes — Presumption in Support of Ruling Below — Motion in Arrest of Judgment — Necessary to Specify With Certainty Qrotmds of Motion — Review Controlled by Questions Raised Below.</p> <p>1. In a prosecution for a specific unlawful sale of intoxicating liquor, the respondent cannot complain in Supreme Court that it was error to admit evidence of sales on other occasions without putting the State to an election, where the exception to the admission of the evidence raises no question as to election of offences.</p> <p>2. The general rule that the charge upon which a respondent is being tried cannot be supported by proof of the commission of other offences applies as well to traffic in intoxicating liquor as to other crimes and misdemeanors.</p> <p>3. In a criminal prosecution, evidence tending to prove a relevant or essential fact, other than the corpus delicti, is not rendered inadmissible by the fact that it tends to prove the commission of an independent offence by the respondent.</p> <p>4. In a prosecution for the unlawful sale of intoxicating liquor, where a State’s witness testified that he went to respondent’s house and asked for wine, that she told him to go out and split a stick of wood, that when he returned there was a bottle- of wine on the table, and he left fifty cents on the table and departed with the wine, evidence of a prior similar transaction by the witness was admissible as tending to characterize the transaction in question as a sale.</p> <p>■b. It will be assumed in support of the ruling below, the contrary not appearing, that an oral motion in arrest of judgment in a municipal court prosecution was overruled for not complying with Rule 12, City and Municipal Courts, providing that all motions shall be in writing and filed with the judge or clerk.</p> <p>'6. The rule that a motion in arrest of judgment should specify with certainty and definiteness the grounds on which it is based is applicable alike to civil and criminal cases.</p> <p>7. On a motion in arrest of judgment the review is controlled by the points raised below.</p> <p>•8. The grounds of the motion in arrest of judgment in a reported case were not incorporated into the motion in question by reference to that case.</p> <p>9. The ground of the motion in arrest that the complaint was insufficient, in that it did not specify the manner in which the alleged unlawful sale of intoxicating liquor was made, was not sufficiently certain and definite to cover the ground that the complaint was defective, in that it was uncertain and could apply equally to other violations of the statute relating to the sale of intoxicating liquor.</p>

<p>Mortgages — Proof of Mortgage Debt Against Decedent Mortgagor’s Estate — Fire Insurance Money as Security for Mortgage Debt — Bight of Devisee to Exoneration From Subsequent Mortgage — Sale Under G. L. 3359 — ■Waiver by Devisee of Bight to Exoneration — Provision in Will for Payment of Debts — Insurance Money No Part of General Assets of Estate — Fire Insurance — -Necessity for Insurable Interest —Devise “Absolutely” Did Not Give Bight to Exoneration From Mortgage.</p> <p>1. Mortgagees, in presenting their notes against the deceased mortgagor’s estate, are within their legal rights, and can insist upon and receive any dividend paid by the estate without prejudice to their security for any unpaid balance.</p> <p>2. Where mortgagees proved their note against the mortgagor’s estate, and the executrix paid the nóte from the proceeds of a fire insurance policy on the mortgaged property, as she had a right to do, and as the mortgagees named in the policy had a right to insist upon, the situation of the parties was not affected by a memorandum as to how she treated the insurance money afterward filed in probate court by her.</p> <p>3. While insurance money, when paid, stands in the place of the property insured as security for the mortgage debt; it retains its character as security only until applied to the debt by mutual consent or operation of law.</p> <p>4. At common law, a devisee of a specific parcel of real estate, which the testator had mortgaged after the execution of the will, * was entitled to have the land exonerated hy the payment of the mortgage debt out of the personal property of the estate.</p> <p>5. Where mortgaged property óf an estate is sold under G. L. 3359, providing that such. property may be sold under order of the probate court, the avails applied on the mortgage debt, and the balance only held against the estate, a devisee’s common-law right of exoneration is defeated, and the mortgaged property is, to the extent of its value, made the primary source of payment.</p> <p>6. Where an executrix applied for a license to sell all the real estate of the testatrix, representing that the personal property was insufficient to pay the. debts and that the real estate was incumbered by mortgages (which had been given after the execution of the will), and, while the application was pending, the buildings on a ninety-acre lot burned and the insurance was applied to pay the mortgage on that lot, and later the probate court granted the license prayed for, directing that the other mortgage should he paid from the avails of the land covered by it, the procedure, in effect, was pursuant to G. L. 3359, and the devisees of the ninety-acre lot, who were also the mortgagees, were not entitled to exoneration.</p> <p>7. In such case, the devisees, by deliberately and knowingly accepting payment of their mortgage from the insurance money, instead of standing upon the allowance of their note against the estate and insisting that their devise he exonerated, waived any right they otherwise would have had to have the mortgage paid out of any other funds.</p> <p>8. A provision in a will directing the payment of all just debts is a mere formality, adding nothing of a testamentary character to the instrument.</p> <p>9. The insurance money remaining after the payment of the mortgage stood as a substitute for the buildings destroyed, and constituted no part of the general assets of the testatrix, and this though the personal property was insufficient to pay the debts, and the insurance was placed and paid for by the executrix after the death of the testatrix.</p> <p>10. Such insurance was obtained by the executrix, at least to the amount of the mortgage, pursuant to an obligation assumed by her, and the balance was properly obtained to protect the contingent interest of the creditors in the property insured.</p> <p>11. Plimpton v. Farmers’ Mut. Ins. Oo.K 43 Vt. 497, distinguished.</p> <p>12. While great liberality is indulged in in determining whether one has anything at hazard in the subject-matter of particular insurance, he must have such a right or interest therein as the law will recognize and protect, which must he of such a character that the destruction of the property will have a direct effect upon it, and not a remote and consequential one.</p> <p>13. The holders oí a mortgage not covering the buildings insured and not calling for any insurance, were not protected by the insurance, their interest in the buildings being indirect and remote and not an insurable interest.</p> <p>14. The mortgages in question, having been paid out of the property on which they rested under circumstances against which no equities could prevail, ceased to he properly included in the liabilities of the estate, and the devisees took their respective properties as burdened without any exoneration.</p> <p>15. The devise of two tracts of land to a devisee “absolutely” was simply to show that the devise was of a fee rather than of a life estate, as in the preceding paragraph of the will, and did not give him a right to exoneration of the land from a mortgage thereon.</p>

<p>Appeal in Chancery. Petition for foreclosure. Heard on defendant’s motion to dismiss for want of proper subpoena, and plaintiff’s demurrer thereto, at the September Term, 1918, Chittenden County, Slack, Chancellor.' Decree sustaining the motion, and dismissing the petition. The plaintiff appealed. The opinion states the case.</p>

<p>Petition to the Supreme Court for Washington County for a writ of mandamus against Frank J. Martin, Judge of Probate within and for the District of Washington, commanding him to summon the plaintiff’s guardian to render his account as such guardian to the probate court for said district and otherwise to proceed with said accounting in said probate court. Heard on an agreed statement of facts.</p> <p>On July 29, 1919, the plaintiff, upon petition filed in the probate court for the Distinct of Washington under G-. L. 3652, was adjudged mentally incapable of taking care of herself and her property, and on July 31, 1919, said probate court appointed a guardian for the petitioner, who qualified as such.</p> <p>From such judgment the plaintiff took her appeal to the Washington county court, said guardian acting as such during the pendency thereof. At the September Term, 1919, said county court rendered judgment in said cause as follows: “Petition for guardian dismissed, and ordered certified to probate court”; and on November 21, 1919, said judgment was duly certified to said probate court.</p> <p>On December 22, 1919, the plaintiff- brought her petition to said probate court, praying said court to summon said guardian forthwith to render his account. This petition the probate court dismissed; and the plaintiff then brought this petition for a writ of mandamus.</p> <p>Neither G-. L. 3451 nor G. L. 3455, relating to an appeal from the “denial” of a probate court, is available, for here the denial was not final, but interlocutory in its nature, and made no disposition of the subject-matter of the petition. Adams v. Adams, 21 Vt. 162; Leaeh v. Leach’s Exr., 50 Vt. 618; Hodges v. Thacher, 23 Vt. 455; French v. Winsor, 24 Vt. 402; Timothy v. Farr, 42 Vt. 43; Wilcox v. Wilcox, 63 Vt. 137.</p> <p>The defendant seeks to justify his refusal to proceed with the accounting by attacking collaterally the judgment of the county court as being beyond its jurisdiction. This cannot be done. Walbridge v. Hall, 3 Vt. 114; In re Dexter, 93 Vt. 304; Driggs v. Abbott, 27 Vt. 580; Wells, Admr. v. Atkins, 68 Vt. 191; Probate Court v. St. Clair, 52 Vt. 24; Mussey v. White, 58 Vt. 45; Tappan v. Nutting, Brayt. 137; Eastman v. Curtis, 4 Vt. 616; Porter v. Gile, 47 Vt. 620.</p> <p>The county court is an appellate court for the rehearing and re-examination of all subjects which have been acted upon by the probate court, and of all over which the probate court had original jurisdiction. Buffum et at. v. Haynes’ Est., 68 Vt. 537; Brown v. Broion, 66 Vt. 76; Adams v. Adams, 21 Vt. 162; B.oyden v. Ward, 38 Vt. 628; Harris v. Harris, 44 Vt. 320; Holmes v. Holmes, 26 Vt. 536.</p> <p>It is only in cases where there is a specific legal right to be enforced, and when there is no other adequate legal remedy that the writ of mandamus issues. State ex rel. Wolfe v. Supervisors, 29 Wis. 79; People v. Sicpervisors, 11 N. Y. 563; People v. Hawkins, 46 N. Y. 9; Babcock v. Goodrich, 47 Cal. 488; Sabine v. Rounds, 50 Vt. 74; Ins. Go. v. Hotvland, 73 Vt. 1; Rv,gg v. Davis, 68 Vt. 600; Free Press Ass’n v. Nichols, 45 Vt. 7; Farr v. /Si. Johnsbury, 73 Vt. 42; Foster v. Redfield, 50 Vt. 285; Green v. Hill, 8 Pick. 46; Awfomi v. Greenhow, 107 IJ. S. 469, 27 L. ed. 468; Moore v. Grenhow, 114 U. S. 338, 29 L. ed. 240; People v. McLane, 62 Cal. 606; People v. Bd. of Police, 107 N. Y. 235; Am. Con. Co. v. Jacksonville, etc., R. Co., 148 U.- S. 372, 37 L. ed. 486.</p>

<p>Highiuays — Negligence in Maintaining JJnrailed Culvert — Contributory Negligence — Jury Question — Instructions to Jury —Accidental Divergence From Road.</p> <p>1. In an action to recover damages received through the alleged insufficiency of a culvert which the defendant town was bound by law to maintain, the only question raised by- defendant’s motion for a verdict was whether there was any substantial evidence supporting plaintiff’s, allegations that the defendant was negligent and the plaintiff was free from contributory negligence.</p> <p>2. The question of the sufficiency of the culvert without a railing, which was the negligence complained of, was, on the evidence, a question of fact for the jury.</p> <p>3. It was a question of fact for the jury whether, considering the conditions existing at the place of accident, the plaintiff was negligent in not stopping his car as soon as he encountered a dense cloud of dust just before reaching the culvert; he having the right to presume that such a dangerous situation did not exist at the place of accident, as in fact did exist.</p> <p>4. A request to charge that, if the jury found that the plaintiff diverged from the traveled road without necessity, the town should not be held responsible for the consequences that ensued, was properly refused as not being adapted to the evidence; the request implying that the divergence from the road was voluntary, while the evidence showed that it was accidental.</p> <p>5. A request to charge that the town was not legally required to protect the culvert to the extent that it would be impossible for an automobile to run off the same was properly refused; the question in issue not being as to the sufficiency of an existing railing, but as to the sufficiency of the culvert without a railing.</p>

<p>Negligence — Duty Essential Element — Declaration—Averment of Duty Essential — Duty of Owner of Premises to Licensees or Trespassers — “Invitee”-—Power of Employee to Invite Third Persons Onto Employer’s Premises.</p> <p>1. Before liability attaches for negligence, a duty must arise on the part of the party charged toward the party injured.</p> <p>2. A declaration for personal injuries caused by negligence, to meet the test of a demurrer, must show a legal duty of the defendant toward the person injured, existing at the time and place of the injury, which the defendant failed to perform, and that the injury was caused by such failure.</p> <p>3. The owner of private premises is under no obligation to keep them in a safe condition for the benefit of trespassers, intruders, idlers, bare licensees, or others who go upon them, not by invitation, express or implied, but for their own purposes and pleasures, or to gratify their curiosity, however innocent or laudable their purpose may be, and this whether they are children or adults.</p> <p>4. To give a person the standing of an “invitee” to private premises, it must appear that his purpose, when he entered the premises, was one of interest or advantage to the owner or occupant; . knowledge, consent, or permission even, standing alone, not amounting to an invitation.</p> <p>5. In an action by a child to recover damages for injuries received while on defendant’s premises for the sole purpose of carrying breakfast to one of the defendant’s employees, the declaration fails to show that the plaintiff was on the premises as an invitee, express or implied.</p> <p>6. An employee of a village in full charge of its electric power plant has no power to invite a third person to enter the premises, where the purpose .of entry is personal to himself, and not incidental to, or in the furtherance of, the village’s business, so as to render the village liable for injuries received while . there.</p>

<p>Appeal in Chancery. Creditor’s bill to set aside a conveyance on tbe ground of fraud. Heard on a special master’s report at the March Term, 1917; Rutland County, Butler, Chancellor. Decree for the plaintiff. Both parties appealed. The opinion states the case.</p> <p>The prevailing doctrine in this country is that indebtedness at the time of a voluntary conveyance raises a presumption of fraud. Sexton v. Wheaton, 21 U. S. 229; Note, 1 L. R. A. 520; Brackett v. Waite, 4 Vt. 389; Thacher v. Phinney, 7 Allen 146; U. S. v. Houseman, 6 í'aige 526.</p> <p>The fact that Hugh J. was indebted at the time of the conveyance is not alone sufficient to set aside the conveyance as a matter of law. Brackett v. Waite, 4 Vt. 389; Clark v. McMahon, 170 Mass. 91; Townsend v. Windham, 2 Ves. Sr. 11; Lush v. Wilkinson, 5 Ves. 384; Detuey v. Long, 25 Vt. 564; Wilbur v. Nichols, 61 Vt. 432.</p>

<p>Pleading — Issue Not Raised hy Pleadings Cannot Be Relied Upon — Practice Act — Pleading of Affirmative Defence Depends On Practice' Act — General Issue With Notice No Longer Exists — General Issue Under Practice Act — Defence of Easement hy Prescription Must Be Specially Pleaded — Flooding Land — Right to Flood Land hy Prescription — Prescription Begins Only When Right of Action Accrues — Oiuner Cannot Increase Burden Upon Servient Estate — Life Tenant Confined to Damages to Life Estate— Opinion of Witness Cured hy Proof of Qualification on Cross-examination — Evidence That Flooding Was Caused hy Sand.</p> <p>1. In an action for damages for the flooding of land, evidence admitted upon other issues could not he relied upon to prove the acquirement of an easement by prescription to flood the land,- in the absence of necessary pleadings raising that issue.</p> <p>2. The Practice Act has abolished the common law distinctions between case and trespass as to matters of pleading; they having been merged, as forms of action, in the action of tort.</p> <p>3. The question of the necessity of specially pleading affirmative matters in defence no longer depends upon the common-law rules as to the scope of the general issue in different forms of action, but upon the construction of the provisions of the Practice Act relating to the answer.</p> <p>4. Under the Practice Act, all matters relied upon as an affirmative defence should be specially pleaded unless otherwise provided by the statute.</p> <p>5. Under the Practice Act, the defendant is required to answer plaintiff’s complaint either by a general denial, or by a specific denial of the allegations or some of them, or by a brief and simple statement of the facts relied upon in defence.</p> <p>6. If the defendant relies upon special matter in defence, he must give notice thereof by proper allegations in his answer, which the plaintiff, in turn, must 'deny, or avoid by stating the facts relied upon to meet such allegations.</p> <p>7. There is no longer such a thing as the general issue with notice, nor can the defendant both deny and confess and avoid the allegations of the complaint. As in equity pleadings, the answer should state all' the grounds of defence, but it cannot contain inconsistent defences.</p> <p>8. Under the Practice Act, the general issue does nothing more than to put in issue the material allegations of the declaration.</p> <p>9. In an action of tort for damages for the flooding of land, the acquirement of an easement by prescription to flood the land could not be shown under the general issue, and, not having been pleaded, it was error to submit the question of easement to the jury.</p> <p>10. The area of plaintiff’s meadow flooded by defendant’s obstruction in the river having increased from year to year, the defendant’s prescriptive right to the meadow was limited to such area as had been flooded for fifteen years or more before suit wás brought.</p> <p>11. In such case, the prescription would begin to run when the plaintiff’s meadow was actually injured by the overflow caused by defendant’s obstruction, as, until that time, no right of action accrued to the plaintiff.</p> <p>12. The owner of an easement cannot materially increase the burden upon the servient estate, nor impose a new or additional burden thereon.</p> <p>13. The plaintiff, having only a life estate in the flooded land, could recover only for the injury to the life estate; and evidence of the value of the land before it was overflowed was properly excluded.</p> <p>14. An objection to the reception of evidence that “the question does not bring it within the evidence in the case,” is not sufficiently plain, in pointing to any error, to warrant a reversal.</p> <p>15. An objection that a witness was not qualified to express his opinion upon the market value of certain property will not be sustained, where his qualification was sufficiently shown during his cross-examination.</p> <p>16. Evidence tending to show that the flooding of plaintiff’s land was caused by sand accumulating in' the bed of the river, and not by defendant’s obstruction, was admissible.</p>

<p>Action ok Contract to recover damages for breach, of covenant of seisin. Plea, the general issue. Trial by Court at the September Term, 1919, Rutland County, Fish, J., presiding. Judgment for the plaintiffs. The defendants excepted. The opinion states the case.</p>

<p>Chattel Mortgages — Prosecution Under G. L. 2798 — Agreement of Parties No Defence for Failure to Set Forth Prior Mortgage.</p> <p>1. That the parties to a chattel mortgage agreed that a prior mortgage on the same property need not be set forth therein is no defence to a prosecution under G. L. 2798, requiring a prior chattel mortgage to be set forth in a second or subsequent mortgage of the same property.</p>

<p>Statute of Frauds — Oral Contract in Consideration of Marriage —Reduction to Writing After Marriage Removes Same From Statute — Exclusion of Evidence Harmless — Question Not Raised Beloiv Not Considered.</p> <p>1. Where the master’s finding that the defendant was not defrauded in the execution of certain written contracts was supported by substantial evidence, he committed no error in failing to find that the defendant was fraudulently coerced into signing the contracts.</p> <p>2. An oral contract in consideration of marriage is not illegal or void under the statute of frauds; the. statute only affecting the matter of evidence by which such a contract may be proved.</p> <p>3. An oral antenuptial contract, by being reduced to writing after the' marriage, is taken out of the statute of frauds, and can be enforced.</p> <p>4. The exclusion of defendant’s evidence contradicting plaintiff’s claim that the oral antenuptial contract had been taken out of the statute of frauds by performance by the parties was harmless, in view of the Supreme Court’s holding that the contract was taken out of the statute by being reduced to writing after the marriage.</p> <p>5. A claim not raised and passed upon by the court below cannot be raised in Supreme Court.</p>

<p>Infants — Power of Parent to Bind Infant by Contract — Rescission of Contract by Infant — All Reasonable Intendments Made in Favor of Judgment Beloiu — Certified Execution.</p> <p>1. The right of an infant to rescind his contract is unaffected by the fact tha£ his father was present advising and approving the transaction; the assent of the father adding nothing to the binding force of an infant’s promise.</p> <p>2. While the father is entitled to the earnings of his minor -child, he cannot, by force of his relationship merely, bind him by contracts made in his behalf, nor sell, pledge, or transfer his property; his relation as natural guardian affecting only his right to the custody of the person.</p> <p>3. On review, all reasonable intendments are in favor of the judgment below, and only necessary inferences may be drawn against it.</p> <p>4. Where the plaintiff, an infant, attempted to rescind a horse trade, and offered to return defendant’s horse and what he had left of the boot money, but defendant refused because the plaintiff’s father was present and agreed to the exchange, the rescission was complete without a tender of the property acquired in the trade.</p> <p>5. The validity of the rescission was not affected by the fact that the plaintiff offered to return only what he had left of tbe boot money, as the law did not require him to return more.</p> <p>6. The defendant’s refusal to surrender the plaintiff’s horse and his subsequent sale of it amounted to a deliberate conversion of it, and, the action being tort in the form of trover, a certified execution was properly granted.</p>

<p>Action op Contract for breach of warranty in the sale of an automobile. Plea, the general issue. Trial by Court at the April Term, 1919, Windham County, Stanton, J-., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case.</p>

<p>Equity Pleading — Sufficiency of Allegations of Fraud — Degree of Certainty Required — Sufficiency of Allegations for Relief on Ground of Mistake — Faihire to Exercise Diligence Bars Relief from Mistake of Fact.</p> <p>1. In a suit by a town for discovery, an accounting, and recovery of damages against a decedent’s estate for failure to pay taxes, on tbe ground that tbe guardians of the deceased, who was of unsound mind, bad removed him from the town and had represented that his residence for the purpose of taxation had been removed therefrom, the bill was defective, as alleging fraud, in not alleging that the guardian who made the representation knew or had reason to know that decedent’s domicile was in the town, and in failing to show that such representation was not an opinion or claim honestly made in the assertion of a supposed legal right.</p> <p>2. While the same precision of statement that is required in pleadings at law is not required in pleadings in chancery, it is necessary that there be such a degree of certainty as will give the defendant full information of the case he is called upon to answer.</p> <p>3. The bill was insufficient for .relief on the ground of mistake because’ it contained no allegation of diligence on the part of the plaintiff to discover where the decedent’s domicile was for the purpose of taxation.</p> <p>4. Where a party has acted through mistake of fact, courts of equity will never afford relief where actual knowledge could have been obtained by the exercise of due diligence and inquiry.</p>

<p>Action op Tort for negligently killing plaintiffs ’ borse with an automobile. Plea, the general issue. Trial by jury at the September Term, 1915, Chittenden County, Miles, J., presiding. Verdict and judgment for the defendant. The plaintiffs excepted. The opinion states the ease.</p>

<p>Action ok Tort for negligence. Plea, the general issue. Upon trial the plaintiff waived the second count of his declaration and claimed to recover solely upon the first count. Trial by jury -at the March Term, 1918, Washington County, Fish, J., presiding. Verdict for the plaintiff to recover $11,000 damages. Judgment on the verdict. The defendant excepted. The opinion states the case.</p> <p>Mortality tables are recognized as proper evidence in cases of death or permanent disability to show the probable duration of life or period of permanent disability, as the ease may be. Donaldson v. Mississippi & Missouri B. Co., 18 Iowa 280, '87 A. D. 391; McDonald v. Chicago & N. W. B. Co., 26 Iowa 124, 96 A. D. 114; Lincoln v. Powers, 151 U. S. 436; 19 R. C. L. 224.</p>

<p>Action op Tort for negligence occasioned by the alleged insufficiency and want of repair of a certain bridge or culvert. Plea, the general issue. Trial by jury at the March Term, 1919, Franklin County, Wilson, J., presiding. At the close of the plaintiff’s evidence, the Court directed a verdict for the defendant. The plaintiff excepted. The opinion states the case.</p> <p>A traveler is not required at all times to have his thoughts fixed on a defect in the way, though having had notice of it; his mere inattention or forgetfulness will not, therefore, necessarily preclude his recovery. Maloy v. St. Paul, 54 Minn. 398; Simonds v. Baraboo, 93 Wis. 40; Dundas v. Lansing, 75 Mich. 499; Gibbons v. Phoenix, 61 Hun. 619; Coppins v. Town of Jefferson, 126 Wis. 578; Kaiser v. Hahn Bros., 126 la. 561; Lyon v. Grand Rapids, 121 Wis. 609; Perldns v. Sunset Tel., etc., Go., 155 Cal. 712; Lancaster v. Walter, 25 Ky. L. Eep. 218; Merriam v. Phillipsburg Borough, 28 Atl. 122; Cowie v. Seattle, 22 Wash. 659; Boyle v. Degnon-M clean- Const. Co., 47 App. Div. 311, 61 N. Y. S. 1043; TJdwin v. Spirhel, 136 111. App. 155; Wheeler v. Westport, 30 Wis. 392; Quillan v. Seattle, 10 Wash. 464; Vergin v. Saginaw, 125 Mich. 499; Carson v. Genesee, 9 Idaho, 244; Durbin v. Napoleon, 21 Ohio C. C. 160; Mt. Morris v. Kanode, 98 111. App. 373; Bouga v. Weare Twp., 109 Mich. 520; Petrieh v. Union, 117 Wis. 46.</p>

<p>Trial — Proving Defence in Plaintiff’s Opening Case by Cross-examination —Evidence—Harmless Error — H ear say — Impeaching Testimony on Cross-examination — Evidence of Acts to Further Sale — Immaterial Evidence — Improper Remark by Party — Remarks by Counsel — Error Cured by Subsequent Testimony — Objection Without an Exception— Conclusiveness of Decision on Prior Appeal — Contents of Destroyed Letters Question of Fact — Abandonment of Contract Largely Question of Intention — Burden of Proving Abandonment of Contract — Question Not Raised Below Not Considered — General Exception to Charge Unavailing— Failure to Charge on Agent’s Liability — Duty to Charge on All Essential Elements — Judgment Against Tivo Reversed In Toto to Prevent Injustice to One — Motion' to Set Aside Verdict — Duty of Court to Exercise Discretion.</p> <p>1. An issue which is a matter of defence cannot of right be brought forward in the plaintiff’s opening case by cross-examination.</p> <p>2. The admission of a hearsay statement of a material fact which had already appeared and about which there was no dispute was harmless.</p> <p>3. In an action for a commission on the sale of standing timber, where one of the defendants testified on direct examination that 0. had nothing to do with the sale, it was not error to permit plaintiff to show on cross-examination, as tending to contradict the witness, that the buyer’s representative told the witness that 0. called his attention to the lands and told him they were for sale.</p> <p>4. The exclusion of evidence was harmless where the fact was shown by other testimony and there was no controversy about it.</p> <p>5. Testimony by 0. that the buyer’s representative called at his office and told him that he had been sent out to look up a tract of land, etc., being introductory merely, was not objectionable as being hearsay, and was too colorless to be harmful.</p> <p>6. The plaintiff being entitled to a commission if certain parties were instrumental in effecting a sale, evidence of what he did: at their suggestion with reference to determining the right to run timber or pulp down a stream was properly received as descriptive of what he did under the agreement to further the-sale.</p> <p>7. Evidence as to change of plans about the property sold that had no legitimate tendency to contradict the plaintiff’s claim' as to the terms of the commission contract was properly excluded.</p> <p>8. An improper remark by the plaintiff concerning a certain letter about which he was being cross-examined was harmless, where the observation was a natural inference to be drawn from the letter, and there was no apparent design to prejudice the defendants.</p> <p>9. The remark of counsel addressed to the court while discussing' the admissibility of certain evidence, that not a word was said about a certain matter at a former trial, if improper, was cured by the subsequent testimony of one of the defendants to-the same thing in cross-examination.</p> <p>10. No question was raised as to a remark by plaintiff’s counsel that certain conduct of a defendant was suspicious where no exception was saved.</p> <p>11. Where it appeared that the plaintiff’s letters to one of the defendants had been destroyed by fire, and that he had. not retained copies of the same, the remark by his counsel in argument that he had not had the benefit of a fire was not prejudicial, it not appearing in what connection the remark was made.</p> <p>12. Where a case has been to the Supreme Court, the decision there is conclusive of questions then decided, unless it appears that the evidence pertinent to the issue at the retrial was materially different.</p> <p>13. The question of whether the plaintiff abandoned the contract relied upon was largely one of intention, and, the letters relied upon as evidence of an abandonment having been destroyed, and the evidence of their contents being conflicting, the question was one of fact and not of law.</p> <p>14. The hurclen of proving such abandonment of the contract by the plaintiff was upon the defendants.</p> <p>15. Although the claimed contract was quite unusual, and defendants’ claim that it was improbable would be entitled to considerable weight by the triers' of fact, the evidence was sufficient to make the question of liability one for the jury.</p> <p>16. The claim that the plaintiff acted for both parties to the sale, and so not entitled to a commission, will not be considered as a ground for reversing the case, when not raised below.</p> <p>17. Where the court charged on the subject-matter of certain requests to charge, an exception to the court’s failure to charge and to the charge as given in respect to the matters covered by. them, without pointing out wherein the requests were not complied with, is unavailing.</p> <p>18. Where a certain letter did not have the conclusive effect claimed for it,. the defendants were not entitled to a charge that it “placed the parties on a new footing” and “the plaintiff is not entitled to recover.”</p> <p>19. In an action against a corporation and its agent on. a joint and several undertaking by them, where the evidence against both defendants was not the same, it was error for the court to fail to charge under what circumstances the agent could be held.</p> <p>20. It is the duty of the court to instruct the jury upon every essential part of the case; and an exception to its failure to charge respecting such matters, though not requested, is well taken.</p> <p>21. Where there are two defendants, and the judgment is based upon a cause of action of such a nature that it will embarrass one in his defence on a new trial, if it be reversed as to him and sustained against the other, the Court will, to prevent possible injustice, reverse the judgment in foto, and grant a new trial to both.</p> <p>22. A motion to set aside a verdict as against the weight of the evidence is addressed to the discretion of the trial court, and its action can only be reversed when it appears that it has failed to exercise or has abused its discretion.</p> <p>23. It is a wrong conception of the function of a motion to set aside a verdict, and of the court’s duty in that respect, that a verdict should not be set aside when a motion for a directed verclict has been overruled, as that would be a withholding of the discretion which the court is called upon'to exercise.</p>

<p>Action of Contract to recover the value of hay. Plea, the general issue. Trial by jury at the April Term, 1919, Essex County, Stanton, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the ease.</p>

<p>Error Not Shoion in Excluding Contents of Letter When Letter Not Before Court — Explanation of Inadmissible Evidence — ■ Remark of Court That Witness Was Not Hostile Proper — ■ Malicious Prosecution — Evidence of Probable Cause — Default Judgment as Admission of Partnership — Explanation' of Default Judgment — Error in Charge as to Damages Immaterial When no Liability — General Exception to Failure to Charge — Charge Considered as a Whole — Question Not Raised Below Not Considered — Supplemental Cha/rge Without Exception Cures Error.</p> <p>1. Where a question calling for the contents of a letter was excluded and the letter is not before the Court, harmful error is no .shown.</p> <p>2. In an action for malicious prosecution based upon the institution of an action for fraudulent representations that plaintiff and another were partners under a certain firm name, where a return made by such third person to the commissioner of taxes that he alone was doing business under such firm name and introduced in evidence by the plaintiff without objection was inadmissible, it was not error to refuse to allow the plaintiff to show why such return was made.</p> <p>3. Where the cross-examiner insisted that he was entitled to ask a certain question because it appeared that the witness was hostile, the court’s remark, “I don’t see, myself, how that can be so; he has been very fair, frank, and open about his statements apparently,” was not error, as it was no more than a finding that the witness was not hostile, as claimed.</p> <p>4. Evidence that before the defendant instituted the suit against the plaintiff for fraudulent representations he had been told that the plaintiff’s representations were false, was admissible as bearing upon the question of probable cause and malice in commencing that suit.</p> <p>5. A judgment by default against the plaintiff in a suit against him and a third person as partners was admissible as an admission by him that a partnership existed between him and such third person.</p> <p>6. In such case, plaintiff was entitled to show that he submitted to the default judgment because of his attorney’s advice; and also to show by his attorney that plaintiff directed him to have the default set aside, but he did not do so because he knew that the matter had been dropped.</p> <p>7. Error in the court’s charge relating solely to the question of damages is immaterial where defendant’s liability was not established.</p> <p>8. An exception to the court’s failure to charge on the subject of when advice of counsel constitutes probable cause, that, if the defendant made false representations to his counsel, he would not be protected if counsel advised him that he ha'd a good suit, was too general to be availing, since the false representations, if any, must have been as to material facts, and must have been considered and relied upon by counsel in giving his advice.</p> <p>9. A part of a charge which, standing alone, might be objectionable is not prejudicial when, considered with all that was said on the subject, it is obvious that the jury could not have been misled by it.</p> <p>10. A ground of exception to a charge not raised below will not be considered.</p> <p>11. Error in a charge is cured by a supplemental charge on the subject to which no exception is taken.</p>

Action op Contract for failure to deliver pulp wood. Plea, accord and satisfaction. Trial by jury at tbe March Term, 1919, Failure to perform the new contract did not revive the old one. Sioux City Stock Yards Co. v. Sioux City Packing Co., 110 Iowa, 396, 81 N. W. 712; Pennsylvmia Min. Co. v. Brady, 14 Mich. 260; Morehouse v. Bank, 98 N. Y. 503; Spier v. Hyde, 78 App. Div. 151, 79 N. Y. Supp. 699.

Complaint under G. L. 3536 for nonsupport of respondent’s wife. Plea, not guilty. Trial by jury in the Barre City Court,, Washington County, Eltvin L. Scott, City Judge. Verdict,, guilty. Judgment on the verdict. The respondent excepted.. The opinion states the case.

<p> Order for Return of Impounded Document Delivered by Mistake. </p> <p>Where certain papers were 'impounded by the Court, and the counsel of one of the parties was given permission to inspect and have copies of a certain specified number thereof, and it appears that by mistake -he was given a copy of a document not included in the list, it is ordered that he surrender all copies of the document traceable to the mistake, and that he make no use of the information obtained from the same.</p>

Action of Contract to recover damages for the nondelivery of certain lumber claimed by the plaintiff to have been sold to it by the defendants. Plea, the general issue. Trial by jury at the September Term, 1917, Windham County, Stanton, J., presiding. At the close pf the evidence the Court directed a verdict for the plaintiff on the question of liability, and submitted the case to the jury on the question of damages only, to which the defendants excepted.

Action of Contract. Trial-by jury at the October Term, 1918, Windsor County, Slack, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The defendant brought his petition to the Supreme Court for a new trial on the ground of newly discovered evidence. On hearing the defendant made no claim on his exceptions, but relied solely upon his petition for a new trial. The opinion states the case.

<p>Action op Tort for entering plaintiff’s close and cutting and removing certain trees. On motion of the defendant the ease ivas transferred to the court of chancery. Heard by the Chancellor at the May Term, 1918, Windsor County, Butter, Chancellor. Decree for the plaintiff. The defendant appealed. The opinion states the case.</p>

<p>Assistant Judge as Justice of the Peace — Disqualified to Try Case Appealable to County Court — Void Judgment Cannot Be Ratified — Void Proceedings Can Be Attacked at Any Time.</p> <p>1. Where a case is appealable to the county court, an assistant judge of the county court has no authority, under section 28, chapter 2 of the Constitution, to try such case as a justice of the peace.</p> <p>2. A judgment rendered by an assistant judge of the county court as a justice of the peace in a case appealable to the county court is void, and is incapable of being made good by confirmation, waiver, or ratification by the parties.</p> <p>3. In such case, all the proceedings before the assistant judge are cor am, non judice, and void, and subject to attach at any stage of the proceedings, either before the justice or in the appellate court.</p>

<p>Matters Dehors the Record Not Considered on Review — Failur.e to Charge Jury Not to Consider Withdraivn Evidence_ Not Error in Absence of Request or Exception — Jurors’ Affidavits Incompetent to Impeach Verdict.</p> <p>1. The Supreme Court cannot consider questions raised on trial unless they are properly and regularly presented, and cannot consider correspondence between counsel and the court which is dehors the record.</p> <p>'2. A petition to set aside a verdict because of the court’s failure to instruct the jury not to consider evidence that had been withdrawn was properly denied, where the petitioner had not requested such a charge nor excepted to the court’s failure to charge on the subject.</p> <p>¡5. Affidavits of jurors are incompetent to show that they considered and were influenced in their verdict by evidence that had been withdrawn from their consideration.</p>

Appeal in Ci-iancery. Bill to confirm plaintiff’s title to certain real and personal property held by him under an oral contract therefor. Heard by the chancellor at the March Term, 1919, Washington County, Fish, Chancellor. Decree for the plaintiff. The defendant Cave appealed. The opinion states the case.

Action of Contract under G. L. 4219, to recover money expended in the support of a pauper. Plea, the general issue. 'Heard by the Court on an agreed statement of facts at the September Term, 1919, Washington County, Btitler, J., presiding. Judgment for the defendant. The plaintiff excepted. The opinion states the ease.

<p>Judgment in Vacation — Exceptions Not Filed Within Thirty Days Thereafter Ineffectual.</p> <p>Under G. L. 1609, 2258, where judgment was rendered in vacation, and exceptions were not filed within thirty days of the- filing of the judgment order in the office of the county clerk, the exceptions are ineffectual, and the Supreme Court has no jurisdiction.</p>

<p>Appeal by tbe defendants from an award of the Commissioner of Industries, holding that the plaintiff was entitled to compensation from the A. G. Dewey Company, as the dependent widow of William E. Gates, an employee of the A. G. Dewey Company, who died from injuries received in the course of his employment. The opinion states the case.</p>

<p>Appeal in Chancery. Bill for an injunction and to establish title to certain premises. . There was a hearing on defendants’ demurrer to the bill at the March Term, 1917, Washington County, Wilson, Chancellor. Demurrer overruled, and bill adjudged sufficient. An appeal was allowed the defendants, which was ordered to lie, and all benefits of the demurrer were reserved to the defendants until final hearing. A hearing on the merits was then had before Slack, Chancellor. Decree for the plaintiff. The defendants appealed.</p> <p>The quitclaim deed from Isaac Pennoek to Joses Nelson, dated December 7,1840, referred to in the opinion, described .the land conveyed as follows: ‘ Beginning on the north line of Lot No. 125 in Jane’s survey, at the county road; thence east on the north line of said lot to the northeast corner of said lot; thence south on the east line of said lot to the southeast corner of said lot; thence west on the south line of said lot to the steepest part or brow of the mountain; thence north on the brow of the mountain half way across the width of said lot; thence west in a parallel line with said lot to the county road; thence on the county road to the first mentioned bound.” The quitclaim deed from Joses Nelson to Alden B. Judevine, dated April 22, 1845, followed the description in the Pennoek deed, with this addition : ‘ ‘ Intending by this to be the same premises occupied by the late Benjamin Ainsworth to the time of his death.” The opinion states the case.</p> <p>A court of equity is not the appropriate tribunal in which to try title to land, and where the main object is to determine légal title or fix boundaries equity is without jurisdiction. Degroot v. Banking Co., 3 N. J. Eq. 198; Andries v. Detroit, etc., Co., 105 Mich. 557, 63 N. W. 526; Wykes v. Bingleberg, 49 Mich. 567, 4 N. W. 498; Callatoay v. Webster, 98 Ya. 790, 37 S. E. 276.</p>

<p>Master and Servant — Playful Acts of Servant Not Within Scope of Employment — Dangerotis Agency — Railroad Torpedo— Very High Degree of Care Required of Master — Knowledge of Engineer Imputable to Master — Judgment Affirmed on Ground Not Raised Below — Section Man Engaged in Interstate . Commerce.</p> <p>1. Where the plaintiff, a section man, was injured by a flying piece of a railroad torpedo placed on the track by defendant’s fireman, for his own amusement, to frighten plaintiff, the fireman’s act was outside the duties of his employment, and the rule of respondent superior does not apply.</p> <p>2. A railroad torpedo should be considered a dangerous agency as a matter of law.</p> <p>3. It is the duty of a railroad company to take every proper precaution to prevent personal injury to those in its employ or otherwise lawfuly on its premises, from explosions resulting from unsafe keeping of inherently dangerous agencies, or from the carelessness of its servants, and the degree of care must be commensurate with the dangerous character of the instrumentality and the circumstances, and, in the case of a railroad torpedo, must be nothing short of a very high degree of care.</p> <p>4. The question of defendant’s negligence in not exercising due care to keep the torpedo safely, which was the proximate cause of plaintiff’s injury, was for the jury.</p> <p>5. If the defendant’s engineer knew or ought to have known that the torpedo was on the track where it was likely to be exploded if the engine were moved, and that its explosion would probably result in injury to some of the section men standing nearby, his knowledge was the knowledge of the defendant, and it was bound to exercise due care not to expose the section men to unreasonable risks and dangers.</p> <p>6. If the engineer, acting within the scope of his employment, without exercising the requisite degree of care, so moved the engine as to explode the torpedo, resulting in plaintiff’s injury, the defendant is liable, irrespective of who placed the torpedo on the track.</p> <p>7. The questions whether the engineer was acting within the line of his employment, and without exercising the requisite degree of care, were for the jury.</p> <p>8. A judgment should be affirmed if it can be on any legal ground, whether raised below or not.</p> <p>9. Section men, repairing the track of an interstate railway, were engaged in interstate commerce while standing beside the track to await the moving of an interstate train, which had stopped over the place where the repairs were being made.</p>

<p>Action of Contract. Plea, the general issue. Trial by jury in the Montpelier City Court, Washington County, Erwin M. Harvey, City Judge. Verdict and judgment for the plaintiffs. The defendants excepted. The opinion states the ease.</p> <p>The parol evidence offered did not contradict the written memorandum, and, since it embraced matters which were a part of the agreement and upon which the memorandum was silent, should have been received in evidence. Wood v. James, 93 Vt. 36, Gilman Bros. v. Williams, 74 Vt. 327; Dunnett & Slack v. Gibson, 78 Vt. 439; Burditt Bros. v. Howe, 69 Vt. 563; Labbee. v. Nelson, 66 Vt. 234; Hadley v. Bordo, 62 Vt. 285; Reynolds v. Hassam, 56 Vt. 449; Tillotson v. Ramsay, 51 Vt. 309; Winn v. Chamberlin, 32 Vt. 318; Michigan State Bank v. Peck, 28 Vt. 200; Redfield v. Gleason, 61 Vt. 220.</p>

<p>Action ok Contract, in which the writ issued as a capias under G. L. 2360. Trial by court in the Hartford Municipal Court, Windsor County, Á. G. Wkitham, Municipal Judge. At the close of plaintiff’s evidence, the defendant rested, and judgment was rendered for the plaintiff. The defendant then filed a motion in arrest of judgment, and to dismiss the writ, “for that no sufficient affidavit was filed with the authority issuing said writ, as required by G. L. 2360.” Motion overuled. The defendant excepted. The opinion states the case.</p>

<p>Action ok Tort for negligently billing plaintiff’s cows witb an automobile on a public highway. Plea, the general issue. Trial by court in the St. Albans City Court, Franklin County, N. N. Post, City Judge. Judgment for the plaintiff. The defendant excepted.</p> <p>One Church, the plaintiff’s authorized agent, was driving two of plaintiff’s cows from St. Albans to Georgia Center, to the farm of one Lapan, a distance of six miles. The cows were started late in the afternoon and at the time, when the accident occurred, at a point in the highway (which is the main highway between Burlington and St: Albans, an improved highway, much used by automobiles) about five and three-fourths miles from the city, it was dark and had been for some little time. Church had no light, did not have any halter or rope attached to the cows, and did not carry any whip or stick with which to guide them. At the place of the accident the highway was straight, comparatively level, of ample width, and with a clear, unobstructed view either way for about a quarter of a mile. The larger cow was in the lead, walking in the right-hand traveled track going south, the other cow was in her rear in close proximity, a little to the right, and Church was at the right of the rear cow with his left hand resting on her right hip. They had been in this position for a distance of about twenty rods, as they went along, when Church saw the bright lights of an automobile coming from the south toward him. The facts of the collision are stated in the opinion.</p> <p>The defendant testified that he was driving the ear; that it was traveling on the easterly side of the road; that it was running at the rate of twenty-five miles per hour; that he saw no objects in the highway in front of the car until he saw the leading cow; that he saw her when within not over fifteen feet away; that he applied the brakes, and turned the car toward his left, the west, to avoid hitting her, if possible; that the cow was in the center of the road, headed east, and he did not see the other cow and did not know that the car hit her until it was all over and he was told. The court found the facts as testified by the defendant to be true, except that the leading cow was in the center of the road.</p> <p>The court found: “(1) That the plaintiff and defendant had equal rights and privileges in and to the highway, the plaintiff an equal right to use the highway to drive his cows, as the defendant to run an automobile, both subject to conditions and emergencies attending the use each are making of the highway; the rights and obligations of the meeting parties were mutual; (2) that the plaintiff was not guilty of contributory negligence, and was exercising due care in driving the cows; (3) that the defendant was guilty of negligence, in that, in the circumstances as indicated by the facts herein stated, that he was driving at an excessive rate of speed, failed to observe the cows as he approached with the car, the cows being on the highway, and in not exercising due care. ’ ’</p>

<p>Discretion in Denying Continuance not Revieiuable — Contradiction of Collateral Matter Brought Out in Cross-examination —Immaterial Evidence — Amendment of Information by Alleging Additional Means — Amendment to Information not Objectionable Because It Might Involve Injunction Issued in Another Case — Error Rendered Immaterial by Verdict — Formal Arraignment of Respondent May Be Waived Under Federal Constitution — Power of State Over Its Criminal Procedure — State Constitution Construed in Light of Existing Common Law — Common-law Criminal Procedure not Affected by Chapter 1, Article 10 of State Constitution — G. L. 2552 Relates to High Crimes — Respondent May Waive Formal Arraignment in Prosecution of Misdemeanor.</p> <p>1. The court’s action in overruling the respondent's motion for a continuance because of the possible prejudice of the jurymen, being a matter of discretion, was final, and not reviewable.</p> <p>2. Collateral matter brought out by a party on cross-examination of a witness cannot be contradicted by him.</p> <p>3. Where a breach of the peace with which the respondent was charged was wholly committed while he was in a certain house, what occasioned him to go to the house was immaterial,</p> <p>4. An amendment, that the respondent then and there intentionally and forcibly laid hands upon one B. without her consent, to an information charging a breach of the peace by the respondent by striking and beating said B., made during the trial to conform to testimony by the respondent, served only to insert another mode of breaking and disturbing the public peace at the same time, and did not set out an additional offence.</p> <p>5. Such amendment was not objectionable because it might bring up the matter of an injunction issued in another case restraining the respondent from interfering with his wife’s possession or control of the house in which the breach of the peace charged took place, because such injunction could be brought into the case only as it might be legitimate evidence on some question involved therein.</p> <p>6. A judgment will not be reversed for an error which is rendered immaterial by the verdict.</p> <p>7. A formal arraignment of, and plea by, a respondent before beginning trial is not necessarily required by the due process clause of the Fourteenth Amendment of the Federal Constitution, and is waived by his proceeding to trial without making objection on that ground.</p> <p>8. State v. Drown, 85 Vt. 233, overruled in part.</p> <p>9. The State has full power over the procedure in its courts, subject only to the qualification that such procedure must not work a denial of fundamental rights or conflict with the Federal Constitution.</p> <p>10. The State Constitution should be construed in the light of the existing common-law, which is to be continued in force under such limitations and restrictions as that instrument imposes.</p> <p>11. Chapter I, Article 10, of the State Constitution, left the rules .of the common-law system of criminal .procedure in force and to be administered, unless changed by statute, including the distinctions, obtaining or permissible, between prosecutions for felonies and prosecution for misdemeanors.</p> <p>12. G. L. 2552, requiring arraignment and plea before trial, relates to the prosecution of high crimes and misdemeanors, and not to the prosecution of inferior crimes and misdemeanors.</p> <p>13. A respondent charged with committing a breach of the peace may waive formal arraignment and plea before trial, and did waive it where he made no objection before the jury was impaneled, and thereafter expressly waived the reading of the information and entered a plea of not guilty.</p>

<p>Pledged Property May Be Attached by Pledgee — Specific Money of Debtor in Sands of Third Person Attachable — Defendants Appearing Specially to Plead to the Jurisdiction May Resist Judgment on Overruling of the Plea — Effect of Answer in Nature of Plea to the Jurisdiction Same as Before Practice Act — Plaintiff Prevailing on Demurrer to ■ Plea to the Jurisdiction not Entitled, to Peremptory Judgment.</p> <p>1. Bank bills deposited by defendants in the hands of a third person as security for any judgment which the plaintiff might obtain against them, were rightfully attached in an action of tort brought by plaintiff against the defendants.</p> <p>2. Specific money of a debtor in the hands of a third person may be attached; G. L. 1940 not making trustee process the only remedy when the property of the debtor in the hands of a third party is in the form of money not a credit.</p> <p>3. The defendants, who appeared specially and filed an answer in the nature of a plea to the jurisdiction of the court, were, without entering a general appearance, entitled to resist plaintiff’s motion for judgment, made by- him after prevailing on the jurisdictional issue, and to object to the judgment rendered against them.</p> <p>4. While the pleading challenging the jurisdiction of the court has been simplified by the Practice Act, the effect of such a plead- ' ing, including the consequences thereof, if overruled, remains as before.</p> <p>5. ' It is only when an issue of fact is found for the plaintiff under a plea in abatement that judgment in chief is awarded him; so, where, on a hearing on an answer challenging the jurisdiction of the court and a replication admitting the answer’s allegations of fact hut denying its conclusions of law, the question was decided as upon a demurrer to the answer, the court, upon overruling defendants’ answer, erred in rendering judgment in chief for the plaintiff.</p>

<p>Action op Tort for negligence. Plea, the general issue. Trial by jury at the September. Term, 1918, Washington County, Stanton, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case.</p>

Action op Contract upon an accident insurance policy. Plea, the general issue. Trial by jury at the March Term, 1918, Chittenden County, Wilson, J., presiding. Verdict and judgment lor the plaintiff. The defendant excepted. The opinion states the ease.

<p>Appeal in Chancery. Bill for an injunction restraining the defendants from interfering with the plaintiff in the use of a certain roadway. Heard on the bill, answer, replication, and facts found by the Chancellor at the September Term, 1917, Rut-land County, Wilson, Chancellor. Decree for the defendants dismissing the bill with costs. The plaintiff appealed. The opinion states the case.</p>

Action op Tort for negligence. • Plea, tbe general issue. Trial by jury at the March Term, 1919, Washington County, Fish, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Original Petition for a new trial, on the ground of newly discovered evidence, in the cases of Clinton P. Underwood v. Stephen J. Gray and. Stephen J. Gray v. Clinton P. TJndemuood. The cases were tried together at the April Term, 1919, Windham County, and there was vérdict and judgment for the plaintiff in the first ease, and for the defendant in the second case, which judgments were affirmed by the Supreme Court. Ante, p. 58. The opinion states the case.

Action of Contract to recover money paid for taxes under protest. Plea, tbe general issue. Trial by jury at tbe Decernber Term, 1919, Bennington County, Chase, J., presiding. At the close of all the evidence the Court directed a verdict for the plaintiff. Judgment on the verdict. The defendant excepted. The opinion states the case. The payment of the tax was voluntary and without compulsion.

Appear in Chancery. Bill for the reformation of two deeds. Heard on the bill, answer, and findings by the Chancellor at the June Term, 1919, Bennington County, Butter, Chancellor. Decree for the plaintiff. The defendants appealed. The opinion states the ease. Equity will withhold its aid if the mistake is the result of negligence or inattention. N. Y. Life Ins.

<p>Principal and Agent — Express Agent not Personally Liable on Agreement to Refund — Reargument not Granted to Raise New Question — Agent not Personally Bound When Extent of Authority Is Known — Shipper Conclusively Presumed to Know Lawful Rate.</p> <p>1. Where defendant, an express agent, acting for and in behalf of the express company, ■ induced the plaintiff, by his erroneous representations as to the rate, to ship a carload of ponies by express, and, on receiving a telegram from the plaintiff that the agent at place of delivery demanded additional payment, replied, “Pay it. Referred to superintendent here. He will arrange refund,” there was no promise making defendant personally liable to the plaintiff for the additional payment.</p> <p>2. The rule that a party will not be granted a reargument for the purpose of raising and presenting a new question applies to one who is not the excepting party and is only called upon to answer the points urged by the one seeking a reversal.</p> <p>3. The rule that an agent binds himself if he fails to bind his principal does not apply where the extent and limitation of his authority is known to the other party.</p> <p>4. A shipper dealing with an express company’s agent in contracting for shipment is conclusively presumed to know the lawful rate and the agent’s want of authority either to contract for a different rate or to promise a rebate, which is in direct violation of law.</p>

<p>Action of Contract. Plea, the general issue. Heard on an agreed statement of facts by the Rutland City Court, Rutland County, G. M. Goddard, Judge. Judgment pro forma for the defendants. The plaintiff excepted. The opinion states the case.</p>

Indictment for violation of G. L. 7104. Plea, not guilty. Trial by jury at the September Term, 1918, Washington County, Stanton, J., presiding. Yerdiet, guilty. The respondent excepted. The opinion states the case.

<p> Demurrer Beaches Back to First Substantial Defect in Pleadings —Judgment■—When Conclusive Agadnst Subsequent Suit. </p> <p>1. A demurrer to the pleadings at any stage relates back through the whole record and attaches to the first substantial defect in the pleadings on whichever side it occured.</p> <p>2. Where two life insurance policies in which the beneficiaries were different were issued on the same application, a judgment in ar action on one policy for the recovery of premiums paid only, because of false statements in the application, cannot be pleaded as a bar in an action on the other policy, being for a different cause of action, but can only be us'ed as evidence.</p> <p>3. A judgment on the merits in a prior suit is conclusive against a subsequent suit on the same cause of action not only as to all matters actually tried, but as to all matters which might have been litigated, but where the causes of action are different, the judgment in the prior action is conclusive only as to matters which were actually litigated and determined.</p>

<p>Action ok Tort for negligence. Pleas, the general issue, and special pleas in bar. Trial by jury at the October Term, 1917, Essex County, Butter, J., presiding. Verdict for the plaintiff.. On a motion by the defendant the verdict was set aside and judgment entered for the defendant. The plaintiff excepted. The opinion states the case.</p>

<p>Adoption of Minors — Proceedings to Vacate Adoption.</p> <p>1. The adoption of minors exists in common-law states only by statute.</p> <p>2. When an instrument adopting a minor is executed and filed as required by statute, tbe adoption becomes effective, and tbe status of the minor is completely changed, without the approval or action of the probate court.</p> <p>3. The question of the probate court’s jurisdiction is not involved in proceedings by a parent, under G. L. 3760, to have the adoption of a minor vacated because the adopters were not residents in the probate district where the instrument of adoption was filed; the validity of the attempted adoption depending upon the question whether the instrument of adoption was executed and filed as required by law.</p> <p>4. G. L. 3760 does not require the probate court to dispose of a petition to vacate the adoption of a minor according to the strict rules of law, the petition being addressed to the court’s discretion.</p> <p>5. The filing of an instrument of adoption in the wrong probate district was a sufficient defect in the adoption proceedings to> warrant the probate court in vacating the adoption.</p> <p>6. The order of the probate court, vacating an adoption, that “it is found that the probate court for the district of Windsor was without jurisdiction and the adoption is hereby vacated,” construed, in support of the decree below, to mean no more than that the court referred to was not the court in which the instrument of adoption should have been filed.</p>

<p>Landlord and Tenant — Bight of Tenant to Sublet — Demand of Bent Essential to Bight of Be-entry — Indivisible Reservation of Rent Not Severed by Severance in Occupancy — Acceptance of Partial Payment of Rent Affirms Tenancy— Waiver . of Forfeiture — Tender by Chech — Unlawful Attornment by Subtenant to Chief Landlord — Disturbance of Lessee’s Possession by Lessor — Recognition by Subtenant of Original Lessor as Landlord — Effect of New Lease by Landlord on Existing Lease — Surrender by Subtenant to Chief Landlord — Intent to Oust Presumed from Unlawful Acts of Landlord — Acts of Subtenant Operating as Disclaimer of Relationship with Landlord — Acts of Landlord Constituting Eviction — Acts of Landlord Suspending Payment of Rent — Possession of Subtenants, Possession of Their Lessor.</p> <p>1. In the absence of a provision in a lease against subletting, the lessee has a right, as an incident to his estate, to sublet the demised premises, or any part thereof, without the lessor’s consent.</p> <p>2. Unless waived by the terms of the lease, it is essential to the right of re-entry and repossession of the premises for breach of covenant to pay rent, that the landlord make demand of the actual rent due, as required by the rule of the common law.</p> <p>3. A reservation of rent that is indivisible does not become severed by a severance in the occupation of the demised premises and payment of rent to the lessor by the respective occupants foi" the portions occupied by each.</p> <p>4. The acceptance by the lessor of a partial payment of the rent due in advance affirmed the tenancy during the period in respect of which the rent was paid, and operated as a waiver of the notice previously given the lessee by her demanding the surrender of the lease, and as a waiver of her .right of reentry for prior breaches of covenant of which she had knowledge.</p> <p>5. Having once been waived, no past default on the part of a lessee, then known to the lessor, can afterwards be a ground of reentry.</p> <p>6. A provision in a lease giving a right of forfeiture for failure to pay any stipulated installment of rent includes only an entire failure to make payment; and when a lessor accepts a part payment of rent he affirms the lease to the end of the period for which the partial payment is made, and cannot claim a forfeiture for the failure to pay the rest.</p> <p>7. Where a lessee had been in the habit of paying rent by cheek, and a check offered in payment of overdue rent was refused by the lessor, not because it was not a valid tender, but solely on the ground that a forfeiture of the lease was claimed, the tender so made and refused should be considered a lawful tender.</p> <p>8. Where parts of certain monthly installments oí an entire rent were paid when due, and the balance was tendered before a forfeiture of the lease had been legally declared, the lessor was precluded from thereafter terminating the lease because of the failure to pay the rent or any part of it for those months, or any part of them, within the time allowed by the lease before the right of re-entry could exist.</p> <p>9. Where lessors had no right to re-enter the leased premises, the constructive re-entry they attempted to make by procuring attornment from the lessee’s subtenant was a substantial interference with the lessee’s right to quiet enjoyment of the premises, was unlawful, and was without force in equity.</p> <p>10. Where premises are occupied under a lease reserving the right to re-enter upon and repossess the premises for refusal or neglect by the lessee to fulfil the covenants thereof, the lessor cannot disturb the lessee in his possession and enjoyment during the term, except under the optional right of forfeiture properly exercised.</p> <p>11. Where a lessee had incurred no forfeiture of his lease, his subtenant could not, without his consent, change the nature of his (subtenant’s) tenancy by recognizing the original lessors as his landlords; and the relative situation of the parties remained unaltered.</p> <p>12. Where no rights of a lessee under his lease had been forfeited, a lease of a part of the demised premises executed and delivered by the lessor to the lessee’s subtenant in possession, for a term not exceeding that of the original lease, was void as to the original lessee.</p> <p>13. In such case, a lease of the remainder of the demised premises executed and delivered by the lessor to a third person for a term exceeding that of the original lease, did not affect the relation between the lessor and the original lessee, nor the latter’s right to possession, under the original .lease, since there could be no lawful possession taken of the premises under such lease until the expiration of the original lease.</p> <p>14. A subtenant cannot surrender to the chief landlord unless the latter has first acquired the intervening leasehold estate.</p> <p>15. Where the unlawful acts of a landlord necessarily resulted in depriving the tenant of the beneficial enjoyment of the leased premises, the intent to oust him is conclusively presumed.</p> <p>16. A subtenant is charged with knowledge of the provisions of the original lease.</p> <p>17. The acceptance by a subtenant of a new lease from the original lessor, when she knew there had been no forfeiture of the ' original lease, operated as a disclaimer of the relation of landlord and tenant between her and the original lessee, entitling him to consider the sublease as terminated.</p> <p>18. Wrongful acts of a permanent character done by a landlord in interference of the tenant’s possession and amounting to a clear indication of intention by the former that the latter shall no longer continue to hold the premises as tenant, constitute an eviction and suspend the payment of the whole rent by the tenant.</p> <p>19. The possession of subtenants under subleases from the original lessee of the premises, in equity, continued to be the original lessee’s possession to enable him to maintain a suit to quiet title, although one subtenant had wrongfully accepted a new lease from the original lessors and thereafter paid them rent as her landlords, and the other subtenant had wrongfully attorned to them.</p> <p>20. In such case, equity will give the original lessee full relief by way of a decree quieting his leasehold title and restoring him to the full enjoyment of his estate, and for an accounting, damages, and necessary injunctive relief.</p>

<p>Action op Contract to recover for two invoices of paper. Pleas, the general issue, offset, and declaration in offset. Trial by Court at the September Term, 1919, Windham County, Wilson, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case.</p>

Petition for divorce. Heard by Court at the June Term, 1920, Windsor County, Stanioh, J., presiding. The libellee appeared specially by attorney, and moved to dismiss the petition upon the ground that said libellee was not cited to appear at any stated term of said court, and, for the further reason, that said citation or summons was too uncertain, doubtful, and indefinite. The motion was overruled, and the libellee allowed an exception.

<p>Information for adultery- Plea, not guilty. Trial by jury at the March Term, 1920, Franklin County, Moulton, J., presiding. Verdict, guilty. Judgment on the verdict. The. respondent excepted.</p> <p>The supplemental charge to the jury on their report of a disagreement ivas as follows: “Well, gentlemen, this ease is an important one, a disagreement is a very regrettable thing, and it means not only an increased expense to the State, but spending a great deal more time in a possible retrial of the case. Now the case has been presented to you with a great deal of detail, everything that there is connected with this case I suppose has been placed before you, and it seems that twelve men ought to be able to agree on it one way or another, if they make another effort to do so. So I think you had better retire again, it is early in the day yet, and give this matter a little further consideration, give it very thorough consideration, and see whether you can’t agree on this matter, as I am sure you can, if you look at it again. Weigh everything there is in the case, remember the instructions that I gave you. I am quite positive, we all are, that you can reach an agreement, and save the unfortunate result of a disagreement of this case. So you will retire again, gentlemen, and give it such consideration as yotb can conscientiously, which it ought to receive, that is, pretty thorough consideration.”</p>

<p>Original Petition for a new trial, on the ground of newly discovered evidence, in the case of Mattheiu Hannah v. John Hannah, which was tried at the May Term, 1918, of Windsor County Court, and resulted in a verdict and judgment for the defendant.</p>

<p>Landlord and Tenant — Parol Evidence Inadmissible to Vary Clear Terms of Lease — Entire Rent Cannot Be Apportioned As to Time — Abandonment by Tenant Does Not Release Liability for Rent — Agreement to Terminate Lease May Be Inf erred — Reletting by Landlord May Work Surrender of Term — Evidence of Surrender.</p> <p>1. A written lease for an annual rent payable in three eaual installments on specified dates at irregular intervals is clear and unambiguous, and parol evidence, received without objection, tending to affect its construction in that respect should be disregarded.</p> <p>2. Under such lease, the rent payments are but partial payments of the entire sum reserved as rent.</p> <p>3. While there can be an apportionment of an entire rent as to estate,' in the absence of any covenant or agreement there can be no apportionment of the same in respect to time, except where the lessor has a life estate and dies before the rent day.</p> <p>4. Where a lease fixes the rent at an annual, sum, the tenant’s abandonment of the premises during the continuance of the lease does not relieve him from liability to pay rent for the entire term.</p> <p>5. In such case, the parties to the lease may rescind the contract for the unexpired term, and an agreement to that effect may be inferred from the circumstances in the absence ,of an express understanding.</p> <p>6. Where a tenant abandons the premises without the landlord’s permission, a reletting of the premises by the landlord may amount to an acceptance of the abandonment and work a surrender of the term by operation of law.</p> <p>7. Testimony by the tenant that his landlord did not object to his leaving the premises before the expiration of his term if he found some one to take the place, and that he brought a person who rented the house of the landlord, was sufficient to raise a question for the jury as to whether there was a surrender of the term either by mutual agreement or by operation of law.</p>