T

3

3. The vendee of property exempt from attachment acquires a title to
such property and its subsequent increase, good against the creditors of the
vendor without any change of possession. Ib.

See BANKS AND BANKING 1, 2.

ATTORNEY.

1. It is not legal error to appoint as prosecutor in a criminal proceeding an
attorney who is acting as counsel in a civil suit against the respondent to
recover damages for the acts on which the criminal action is based.
Ward, 153.

BAIL.

State v.

1. The undertaking assumed by an infant in endorsing his name upon a
writ as bail for the defendant is not void, but voidable. Reed v. Lane, 481.

2. In a suit against the bail in such case, the declaration must aver that
the original writ properly and in fact was issued as a capias. and, there not
being such averment here, the demurrer to the replication was sustained. lb.

1.

BANKS AND BANKING.

Under U. S. Rev. St. s. 5242, the property of a national bank cannot be
attached before final judgment; the trusteeing a debt due such a bank is in
effect the attachment of the property of the bank; hence where the only ser-
vice on a non-resident bank was by leaving a copy in the hands of the trustee,
such service is void, and the court obtains no jurisdiction. Safford v. First
National Bank of Plattsburgh, 373.

2. Quere, whether service nnder R. L. s. 1081 would be good, where the
officer's return shows that service was made on the non-resident defendant
by leaving a copy with the trustee, without stating that such copy was "for
said principal debtor." Ib.

See EQUITY, 22.

BOUNDARIES. See DEEDS 2, 3, 4, 6, 7.

BURDEN OF PROOF. See EVIDENCE 20.

CARRIERS. See TELEPHONE COMPANIES 1, 2; RAILROAD COMPANIES
13, 14, 15; TELEGRAPH COMPANIES, 1, 2.

CHALLENGE, JUROR.

1. The statute permitting the peremptory challenge of jurors by the State
in criminal cases is constitutional. State v. Ward, 153.

CHARGE OF COURT.

1. It was no error for the court to say to the jury, in explaining the nature
and weight of circumstantial evidence, that many great jurists had pro-
nounced it "of a nature equally satisfactory with positive evidence and less
likely to proceed from perjury." If the law laid down by the trial court is
correct, it is in no wise material in whose language it is expressed. State v.
Ward, 153.

2. It was not error for the court, in its charge, to say that there was no
claim that the fire was an innocent one; that it was the wicked and malicious
act of somebody; that it was maliciously set; when the whole case had been
tried upon this theory, and the jurors could not have inferred from the lan-
guage of the court that they could convict without finding the body of the
crime. Ib.

3.

Although it is the duty of the court to construe a written instrument,
there is no revisable error in submitting it to the jury, where it appears from
the verdict that a proper construction of it could not have benefited the
excepting party. Currier v. Robinson, 196.

4. When the verdict of the jury shows that no harm can have accrued to a
party by reason of the charge of the court upon a particular point, no error
can be assigned in that respect. Wilcox v. Moore, 484.

5. Plaintiff claimed that trespass was committed on the Knapp strip,
Defendants insisted that there was no such strip, and requested the court to
charge that if there was not, the verdict must be for them. Court told the
jury that if there was no such strip, then the plaintiff had no title. Held,
a compliance with the request, since the plaintiff claimed to recover because
he had title. Walker v. Collins et al., 542.

6. Defendants claimed that a certain state of facts was true, and requested
the court to instruct the jury that in consequence a certain other fact would
be true. The jury were told that the latter fact would result, if they found
the first state of facts as claimed by the defendants. Held, a compliance
with the request. 16.

7. F., B. & R. agreed among themselves to construct as equal partners
a railroad, and that the contract should be taken under the firm style of F.
& B. Subsequently the relations of the partners were adjusted upon a new
basis, and two written memoranda executed by them to show what that
basis was.
The firm name continued the same after their execution as be-
fore. The supplies for which the plaintiff sued were furnished after. De-
fendant claimed that if ever R. was a silent partner in the firm F. & B., he
ceased to be from the execution of these written instruments and introduced
the instruments themselves as evidence thereof. Held, that such was the
effect of the written memoranda, and that the court should have so instructed
the jury, but that the plaintiff could not assign this error inasmuch as such an
instruction could not have been beneficial to him. Currier v. Robinson, 196.
See EVIDENCE 22, 25.

CHATTEL MORTGAGE.

1. A chattel mortgage is not rendered void by the fact that the mortgagee
consents, by the terms of the mortgage or otherwise, that the mortgagor
may sell the mortgaged property, from time to time, at least where it is stipu-
lated that the property so sold shall be replaced by other of similar kind and
value. Peabody v. Landon, 318.

2. Where the mortgage provides that the property so substituted shall be
subject to the terms of the mortgage, and the mortgagee takes possession of
it, with the consent of the mortgagor, it is thereby brought under the opera-
tion of the mortgage as of the date of the mortgage. 1b.

3. H. bought a stock of goods of the defendant and mortgaged them to him
to secure the purchase money. The mortgage provided that, as such goods
were sold they should be replaced with others of like kind, and of sufficient
value to keep the security of the defendant good. December 1 defendant
took possession of the entire stock under the mortgage. At that time H.
was insolvent. but defendant did not know it. December proceedings in
insolvency were begun against H., under which plaintiff was appointed
assignee. At the time defendant took possession, about one-third of the
goods were of the original stock. Held, that the defendant could hold, as

E

against the plaintiff, both the goods originally mortgaged to him, and those
substituted by H. for the goods sold, the mortgage having been executed
more than five months before the commencement of the insolvency pro-
ceedings. Ib.

4. Under No. 91, Acts of 1884, a mortgagor of personal property cannot cre-
ate a lien which will be paramount to that of a mortgagee holding under a
mortgage, previously executed and duly recorded, without the consent of
such mortgagee. Ingalls v. Vance, 582.

5. And, such consent will not be implied from the mere knowledge of such
mortgage that, after the execution of his mortgage, the property had been
placed in the hands of a third party to be kept. Ib.

6. Section 1977, R. L., is permissive, and under that section a mortgagee
may cause either a part or all of the property to be sold, regardless of the
amount of his mortgage debt. lb.

CLAIMS. See EXECUTORS AND ADMINISTRATORS 1.

COMMISSIONERS. See EXECUTORS AND ADMINISTRATORS 1; ESTATES
OF DECEASED PERSONS.

COMPENSATION.

1. A partner, claiming compensation for additional services about the
partnership matters after dissolution, assumes the burden of proof as to that
fact. The master having reported that from the evidence he could not so-
find, the item was disallowed. Redfield v. Gleason, 220.

2. Compensation cannot be allowed one co-tenant as against another for
services in caring for the joint property, except in virtue of some contract to
that effect, express or clearly implied.

See ASSUMPSIT 1.

16.

CONDITIONAL SALE.

1. Since the passage of No. 93,'Acts of 1884, the vendee in a conditional sale,
where a valid lien has been created under the statute in favor of the vendor,
has a right to the possession of the property until thirty days after breach of
condition. Roberts v. Hunt, 612.

2. In such case the only remedy of the vendor at law is to proceed under
the Act. Ib.

CONFLICT OF LAWS.

1. Where personal property is sold in Vermont to a resident of New Hamp-
shire for the purpose of being attached to the realty in that State under
a verbal lien that it shall remain the property of the vendor, the question
whether it will pass by a conveyance of the realty when so attached must be
determined by the laws of New Hampshire. Buzzell v. Cummings, 213.

2. S. owned a saw mill in New Hampshire. Sept. 15, 1887, he sold it to B.
and conveyed it to the wife of B. February 2, 1878. At the date of sale S.
received from Mrs. B. $50 cash and the notes of B. and wife for the balance
which were secured by mortgage on the property executed May 1st, and
recorded May 2, 1878. In March, 1878, B. bought of plaintiff a new water
wheel for the mill, agreeing verbally that it should remain the property of
the plaintiff until paid for, and June 1, 1878, a written lien was executed and

1

recorded in town clerk's office in St. Johnsbury. The wheel was shipped
April 1st, and soon afterwards, but it did not appear whether before or after
May 1st, affixed to the mill in such a manner that it might pass by deed of the
realty, or might preserve its character of personalty. In September, 1878, the
wife of B. separated from him and November 11, 1878, conveyed her interest
in the property by deed quit-claim to the defendant, who then paid and
took a transfer of the Sawyer notes. She did not expect that the wheel
passed by the conveyance. Held, that the defendant did not acquire title to
the property under the quit-claim deed. That, as to the S. mortgage, the
burden was upon the defendant to show that it had been affixed to the realty
when the mortgage was given, and this not appearing, the plaintiff had good
title under the laws of both Vermont and New Hampshire. Ib.
CONSIDERATION. See ASSUMPSIT 3.

CONTRACT.

1. The plaintiff cannot recover of the defendant money paid in pursuance
and satisfaction of illegal stock-wagering transactions to which both were
parties. Sowles v. Welden National Bank, 375.

See EQUITY 23, 24;
ASSUMPSIT 1, 2, 3.
CONTRIBUTION.
CONVEYANCES.

JURY 2; FRAUD 2; PLEADINGS 23, 24; EVIDENCE 1;

See MORTGAGES 3.

See CONFLICT OF LAWS 2.

CORPORATIONS.

1. In order to affix a liability under sec. 3279, R. L., three things must con-
cur: 1st. A corporation legally existing under the laws of the State. 2d.
A debt contracted by such corporation. 3d. A failure to comply with the
provisions of sec. 3278, before contracting such debt. Corey v. Morrill, 598.

2. When articles of association under chapter 153, R. L., are signed upon
the understanding that they shall not take effect until the happening of a
certain contingency, they do not become effective, and no corporation exists
until that contingency happens. Ib.

3. In such case a director, who is guilty of no act or omission by which the
party extending the credit is misled, is not liable. Ib.

4. But where the defendant represented to the plaintiff that such corpora-
tion had been legally organized, and that he was a director, he is estopped
from making this defense, and is liable. lb.

COSTS.

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. Universal Fashion Co. v. Morrison,546.

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

3. At the suggestion of orators, it is ordered that the taxable costs and
reasonable counsel fees be paid out of the estate. Ib. Judevine v. Judevine, 587.
See WILL 8.

CO-TENANCY. See TENANCY IN COMMON.

COVENANTS.

I. The covenant of seizin, if broken at all, is broken at the time of the
conveyance, and the covenantee may sue upon it, although before the bring-
ing of the suit he has parted with his title to the land. Bank of Rutland v
Clement, 298.

2. The covenant of warranty is not broken until eviction. A covenantee
may sue upon that covenant, who has parted with his title to the premises
before beginning suit, provided there was a breach of the covenant before
his own conveyance, or provided that he had conveyed with similar cove-
nants on his own part, and had made compensation before the commence-
ment of the suit. lb.

See DEEDS 7.

CRIMINAL LAW.

1. An information based on s. 7, No. 73, Acts of 1884, need not aver the
destruction of the fish. It is the taking, not the destruction, which is pro-
hibited. State v Smith, 346.

2. Granting that Nos. 73 and 245 should be so construed together that fish-
ing with hook and line is not prohibited in Lake Bomoseen, still the infor-
mation need not negative the fact that the taking averred was with hook
and line. The provision in the last mentioned act would be mere matter of
defense, lb.

3. The indictment alleged that the respondents made an assault and
impeded the officer by making such assault. Held, not bad for duplicity.
State v. Ferry, 624.

4. In an indictment for impeding an officer, it is a sufficient allegation of
official capacity to say that the person impeded was a sheriff. Ib.

5. A prosecution cannot be begun by information, when the punishment
for the crime charged may be by imprisonment in the State prison for more
than seven years, as for grand larceny. State v. Magoon, 45.

See EVIDENCE 8 to 10 inclusive; HABEAS CORPUS 2; INTOXICATING
LIQUOR 1, 2, 3.

See EVIDENCE 8 to 21 inclusive.

CROPS. See ATTACHMENT 1.

DAMAGES. See RAILROAD COMPANIES 4, 5, 6; EVIDENCE 7; ASSAULT AND
BATTERY 2, 3, 4; DEED 18.

1.

DEATH BY WRONGFUL ACT.

The declaration alleged that the death resulted from the tortious act of
the defendant, that deceased left a widow and next of kin, and that plaintiff
was his personal representative. Held, that this showed a cause of action
under R. L. ss, 2138-9 without the further allegation that the suit was brought
for the benefit of such widow and next of kin. Westcott, Administratrix, v.
C. V. R. R. Co, 438.

2. The names, ages and residences of the beneficiaries, together with the
extent of their dependence on the deceased need not appear in the declara-
tion. If these facts are necessary to the defense, the court can order a speci-
fication. Ib.

DECLARATION. See PLEADING 7, 18; BAIL, 2.