Walker v. Collins et al.

them, and gave evidence tending to show that there should be such a strip there. On cross-examination he was inquired of as to his experience as a surveyor in the old town of Philadelphia, and as to whether he had seen any field book of that town, and this question and answer were put and taken without objection.

Q. "Did you find anything that authorized you to lay out a strip one hundred and six rods wide between the seventh and eighth ranges?"

A. "No, sir, I never did anything of the kind. "

Still further on in the cross-examination he was asked this question :

To

Q. "Did you ever see any plan or field book which authorized you to insert a strip of land between ranges 7 and 8?" which the plaintiff objected and it was excluded, against the exception of the defendants, "for that it called on the witness to state the contents of the plans and surveys, if he had seen any. The best evidence of what the plans and surveys show are the books themselves, and nothing appears as yet but what they are in existence and in the reach of the parties."

The questions raised by the exceptions of the defendants to the charge of the court appear in the opinion.

J. J. Wilson, for the defendants.

The defendants had the right to ask the witness Wright the question as to what field book he had ever seen containing this strip, for the purpose of testing his accuracy and means of information. The plan or book could not be produced until it was first ascertained whether there was one, and this was all that was called for by the question. There might be various plans or books, and what the defendants sought to do was to identify this particular one, or find out if there was such a one. 1 Greenl. on Ev. 96; Gilbert v. Duncan, 29 N. J. 133; Kalama200 N. M. Works v. McAllister, 40 Mich. 85.

Walker v. Collins et al.

E. J. Ormsbee and T. O. Seaver, for the plaintiff.

Wright having answered the question once, the defendants had no right to ask it again.

The jury were properly instructed as to the points embraced in the 2d and 3d exceptions of the defendants.

The opinion of the court was delivered by

TAFT, J. I. The defendants complain that a witness was not permitted to answer the question, "whether he had ever seen a plan or field-book, which authorized him to insert a strip of land between ranges seven and eight," in the town of Rochester. The court excluded the question for that the plan or field-book was the best evidence of its contents. There was no error in excluding the question; it had already been answered in favor of the defendants. The witness had stated that he had never found anything that authorized him to lay out a strip between the ranges named. If he had never found anything that warranted it, it was in substance saying that he had never found a plan or field-book authorizing it. There was no reversible error, even if the ground assumed by the court was unsound, which is a point we do not decide; it was the repetition of a question already answered.

II. It was claimed that the trespass was committed upon the Knapp strip of land, which the plaintiff insisted was between the seventh and eighth ranges of lots. The defendants' evidence tended to show there was no such strip, and they requested the court to charge that if the jury so found, the verdict be for the defendants, on account of the misdescription of the locus in quo. It related to that branch of the case in which the plaintiff claimed to recover, having title to the land. The request was complied with. The jury were told that if, in point of fact, there was no such strip of land as the Knapp lot, then it was very plain that the plaintiff had no title.

Walker v. Collins et al.

III. In running the lines of the old town of Philadelphia, the Surveyor General was required by law, called the swag law, to allow one chain in thirty for the deflection of the chain in passing by obstacles. The defendants requested the court to charge that each proprietor, and his grantees, would be entitled to the land so allotted, notwithstanding it overran in width the surveyor's description. Whether entitled to the charge or not, it was in fact given, and the jury were told that before they applied that rule, they ought to be satisfied that the lots were so run, and that a deviation was so made in the measurement at the time the proprietors' survey was made. The jury were told to consider that fact in determining where the lot lines were, in case they found the fact as the defendants claimed it, not otherwise.

Judgment affirmed.

Universal Fashion Co. v. Morrison.

UNIVERSAL FASHION CO. v. SARAH D. MORRI SON, APT.

Costs. R. L. s. 1170.

1. When the prosecution of a suit in the County Court is perpetually enjoined by the Court of Chancery upon the petition of the defendant, the defendant cannot, upon the discontinuance of such suit, claim costs as a matter of right, no order in respect thereto having been made by the Court of Chancery.

2. R. L. s. 1170 does not apply when the discontinuance is by order of court, and not voluntary.

Motion as to the allowance of costs. Heard at the December Term, 1888, Powers, J., presiding.

After this suit had been entered in the County Court, the defendant, in a suit between the same parties, obtained a decree from the Court of Chancery perpetually enjoining its further prosecution. Thereupon the plaintiff discontinued this suit in obedience to such decree, and the defendant moved for her costs. The decree made no order as to the costs of this suit, and the court held that therefore they could not be allowed. Exceptions by the defendant.

Davis & Enright, for the defendant, contended that under R. L. s. 1170 the defendant had an absolute right to her costs, which it was not within the discretion of the County Court to disallow. William Batchelder, for the plaintiff.

When the defendant transferred this litigation into the Court of Chancery, that court acquired jurisdiction of the entire subject matter, and was thereafter the only court which could make any order as to costs in the premises. Story Eq. Jur. 437–9.

R. L. s. 1170 does not apply where the plaintiff, having a good cause of action when the suit is brought, is compelled to discontinue it by something transpiring afterwards. Wheeler v. Wheeler, 39 Vt. 312; Clark v. Schofield, 16 Vt. 699; Chad

Universal Fashion Co. v. Morrison.

wick v. Batchelder, 46 Vt. 724; Sumner v. Cummings et al., 23 Vt. 434; Fullam v. Ives, 37 Vt. 663; Brigham v. Mosseaux & Trustee, 20 Vt. 517.

The opinion of the court was delivered by

TYLER, J. This case comes here on an appeal from a decision of the County Court, denying costs to the defendant.

After the suit was brought, the defendant, by his bill of complaint, transferred the whole matter in controversy between himself and the plaintiff to the Court of Chancery, which court then had full jurisdiction and control of both causes and should have made all orders for costs as to both parties.

The Chancellor, from his knowledge of the facts involved, was peculiarly qualified to make an equitable adjustment of costs, but, so far as the exceptions indicate, he was not applied to by the defendant for that purpose. On the formal discontinuance of this suit in the County Court the defendant applied for and was denied costs, in which denial the defendant claims there was error. We hold there was no error for the reason that the discontinuance was compulsory, being in obedience to the injunction, and not by the voluntary act of the plaintiff, and that section 1170 of the Revised Laws does not apply.

The decision of the County Court is affirmed.