he was in possession of the premises as lessee of the mortgagor and while Caldwell was in possession under him. They were not made upon the express or implied request of the defendants. So far as appears the defendants had no knowledge that the plaintiff proposed to or had agreed with Caldwell to make them. They had not taken possession and the plaintiff was not holding under them when the additions and repairs were made. The plaintiff's possession and that of Caldwell was the possession of the mortgagor. Legally these repairs and additions stood related to the defendants the same as if made by the mortgagor in possession. If made by the mortgagor while in possession, although they added to the defendants' security, they would create no legal liability of the defendants to pay for them. When the mortgagor re-entered for the failure of the plaintiff to pay the stipulated rent, the additions and repairs became the property of the mortgagor. The plaintiff had no right to them or to remove them. The plaintiff surrendered nothing and the defendants acquired nothing by the subsequent agreement. It was therefore wholly without consideration and unenforceable. Frear v. Hardenbergh, 5 Johnson 272, (4 Am. Dec. 356); Shreve v. Grimes, 4 Littell (Ky.) 220, (14 Am. Dec. 117). The last case holds that a purchaser of real estate, under a parol contract, which is not enforceable, cannot recover on implied assumpsit for improvements made on the estate, and the first, that no recovery can be had on the promise of the owner given after the improvements are made, inasmuch as such promise lacks consideration to support it. There may be doubt whether the general exception taken by the defendant was intended to cvoer the admission of the entire testimony in regard to the defendants' agreement to purchase and pay for the repairs and additions. The special exception does cover the repairs on the old water wheel. The special exception would not be needed if the general exception was in

tended to apply to the admission of the testimony in regard to the agreement of the defendants to pay for the repairs and personal property. Hence this court is in doubt what judgment it should render in reference to the new water wheel and personal property or fixtures, although the verdict is special. Therefore, inasmuch as the exceptions leave this court in doubt what judgment it should render on the special verdict, and as error is found in the judgment of the county court, that

Judgment is reversed and the cause remanded for a new

trial.

Rowell, J., dissents.

BOYDEN AND HERRICK

V.

VILLAGE OF BRATTLEBORO.

WINDHAM COUNTY, 1893.

Before: Ross, CH. J., TAFT, MUNSON AND START, JJ.

Village sewers. Assessment upon land owners.

What

questions may be raised in county court upon appeal.

1. Upon an appeal to the county court from an assessment by the bailiffs of the village of Brattleboro for contribution towards the expense of constructing sewers, the land owner may raise the question of the right of the bailiffs to make any assessment at all.

2.

Under a provision of the charter that "Every person whose particular drain shall enter into any such common sewer, or main drain, or who, in the opinion of said bailiffs, shall receive benefit thereby for draining his premises, shall be assessed therefor his just share towards the expense of laying and constructing such sewer or drain," a land owner cannot be assessed towards the expense of making changes in a sewer already laid which are rendered necessary solely by the fact that a new sewer is to be connected with it.

Appeal to the county court from a sewer assessment by the bailiffs of the village of Brattleboro. Heard at the September term, 1891, ROWELL, J., presiding, upon the report of commissioners. Judgment for the petitioners. The petitionee excepts.

In the spring of 1881, several persons, of whom William H. Esterbrooks was one, constructed a sewer along Elliot street, in the village of Brattleboro, for the purpose of affording drainage to the lands upon that street, into the Connecticut river. Originally this sewer was entered only by those persons who had borne the expense of its construction, but subsequently other land owners were permitted to enter it upon the payment of a portion of the expense of its construction, and articles of association were framed defining the rights of the several proprietors in this sewer, from which the same came to be called the "association" sewer.

October 7, 1881, the proprietors of the "association' sewer, being desirous of relieving themselves from the future expense of maintaining the same, conveyed the sewer to the village of Brattleboro without compensation, and the village accepted the sewer and agreed to maintain it in the future.

In 1886, the bailiffs of the village of Brattleboro constructed a sewer known as "Elliott, Frost and Flat street sewer," which drained a considerable territory in the village and which connected with and was discharged into the river through the association" sewer. In constructing the

"Elliott, Frost and Flat street sewer" and connecting it with the "association" sewer it became necessary to lower a portion of the latter. The bailiffs of the village claimed that by connecting the "Elliott, Frost and Flat street" sewer with the "association" sewer the two became a part of one system, and that the land owners along the "association" sewer might be assessed towards the expense of lowering that sewer, as aforesaid, and also for the expense of constructing the "Elliott, Frost and Flat street sewer” over and above the amounts derived from assessments.

The petitioners own certain property upon Elliott street, through which the "association" sewer had been originally constructed, and derived their title to the same from the aforesaid William H. Esterbrooks, one of the original proprietors of that sewer. At the time when the original sewer was constructed there was standing upon this land a building which continued to stand there down to the time of the controversy. After the petitioners acquired their title to the land and before the laying of this assessment, they constructed upon the land a brick building and from this laid a sewer to and connected with the sewer which had always run from the wood building into the "association" sewer. It was for the benefit derived by the petitioners from the drainage afforded this new brick building that the bailiffs attempted to lay the assessment.

Waterman, Martin & Hitt for the petitionee.

Haskins & Stoddard for the petitioners.

When an assessment is once levied and paid for the making of a local improvement, no further assessment can be made for its repair. Dillon Mun. Cor., 596.

The opinion of the court was delivered by

ROSS, Ch. J. The bailiffs of the defendant assessed the

petitioners for the construction of sewers in the village of Brattleboro. The petitioners were dissatisfied with that assessment and brought their petition to the county court to have that assessment corrected, under section 17, of the charter of the village, which reads: "When any person

shall be dissatisfied with the decision of the bailiffs in the award of damages for land taken for a sewer or drain, or in any assessment for contribution for the same, such person may petition the Windham county court for a reassessment of such damages or contribution." This petition is for a reassessment for contribution. The defendant contends that the county court on such petition cannot inquire into the right of the bailiffs to assess for contribution, but that its inquiry is confined to determining the amount of the contribution; that if the bailiffs had no right or jurisdiction to assess for contribution in the given case, the petitioners must set up that defence when sued for the enforcement of the assessment. It is doubtless true that they could set up such defence when sued for the enforcement of the assessment. But we think, by the petition, the county court has given to it the same jurisdiction which the bailiffs had. They must, of necessity, first inquire whether, under the existing facts of the case, they have any right or power to assess the petitioners. A judicial tribunal always must primarily inquire whether it has jurisdiction of the case presented. The petition to the county court is in the nature of an appeal. The county court took the jurisdiction of the bailiffs. The scope of its jurisdiction and inquiry was as broad as that conferred upon the bailiffs. If the bailiffs obtained no right to assess the petitioners the county court took none. The charter gives the right to petition the county court because the petitioners were dissatisfied with the assessment of them for contribution, "inasmuch as they claimed that under the existing facts the bailiffs had no right or power to assess them." This inquiry was open to the petitioners in the