or injured except under certain provisions, and provides a penalty for violating these provisions, and other sections of chapter one hundred and sixty-three provide for the erection and maintenance of lines under different circumstances from those disclosed in the declaration and over different property, it was not necessary for the plaintiff to show by its declaration that it had not violated the provisions of the act of 1888 or subjected itself to the penalty therein provided, or that its line is not such a line as is provided for in other sections of this chapter. It is sufficient for the plaintiff to show by its declaration that its line is one of the lines provided for by this chapter; and it has done so by showing that it is such a company or association as is authorized by this chapter to erect and maintain a telegraph line on and over any highway in this State, and that the line which it claims the defendants have injured was erected and is maintained by it over such highway. By proving these allegations, and also proving that the defendants wilfully or intentionally injured the wires, posts or fixtures of its line, a prima facie case is

made out.

The section of this chapter providing for the penalty sought to be recovered contains no exceptions which the plaintiff was required to negative. The claimed exceptions are provisions found in other sections of the chapter, relating to cutting or injuring trees, the location of the line where objection is made, and the assessment of damages in certain cases; and it is claimed that the declaration should show that notice was given, hearing had, damages assessed and paid, as is provided in these sections. If it were necessarily

inferable from the fact that a telegraph line has been erected and maintained, that trees have been cut or injured, that objection was made to its location, or that damages were claimed by reason of its location, there might be sufficient reason for so holding; but no such inference is to be drawn from these facts. A telegraph line may be erected and

maintained over and upon a highway so as not to interfere with the public convenience in travelling thereon or in repairing the same, without cutting or injuring trees, and without objection or claim for damages being made. Such a line is authorized by this chapter, and may be erected and maintained by a telegraph company in pursuance thereof, without obtaining permission to do so from any one; and a person wilfully or intentionally injuring such a line subjects himself to the penalty provided for in section 3,461. If the plaintiff's line was not thus erected and maintained, and it became necessary to cut or injure trees, or objection was made or damages claimed, and the plaintiff neglected or omitted to observe the statute providing for such cases, and the defendants are thereby excused from liability, such neglect or omission is a matter of defence and not a matter to be negatived in a declaration.

In State v. Abbey, 29 Vt. 60, it is held that, in an indictment for bigamy, it is not necessary to allege that the respondent was not within any of the exceptions provided in the statute, and that an exception need not be negatived because it is in the section containing the enactment, unless the exception is a part of the definition or description of the offence. In State v. Hodgdon, 41 Vt. 139, the respondent was indicted for violating the statute relating to pedlers. The statute contained a proviso excepting from its operation goods manufactured in this State, and it was held that it was for the respondent to prove that he was within the exception. In State v. Freeman, 27 Vt. 523, it is held that the qualification to the words "give away," in the statute relating to intoxicating liquor, need not be negatived in the indictment. In State v. Norton, 45 Vt. 258, it is held that the provision in an act prohibiting the killing of deer, that it should not interfere with the rights of the owner of such animal wholly or partly domesticated, need not be negatived in the complaint. In State v. Smith, 61 Vt. 346, it is held

that a proviso in an act relating to fishing, that it shall not prevent fishing with a hook and line, is not descriptive of the offence, nor a part of its definition, and therefore catching with a hook and line is but matter of defence, and need not be negatived in the indictment.

Judgment reversed, demurrer overruled, declaration adjudged sufficient and cause remanded.

I.

2.

D. N. McKAY v. H. G. DARLING.

ORANGE COUNTY, 1893.

Before: Ross, CH. J., TAFT, ROWELL AND START, JJ. Instrument under seal. Assumpsit. Reference.

Assumpsit will not lie for the breach of a contract under seal. Nor does the defendant lose the right to raise this objection by consenting to a reference.

Assumpsit. Heard upon the report of a referee at the December term, 1892, Munson, J., presiding. Judgment pro forma for the plaintiff. The defendant excepts.

The plaintiff sought to recover compensation for sawing certain lumber, and damages for the non-performance of certain agreements upon the part of the defendant in reference to the sawing of this lumber. It was conceded that the parties had originally executed two written contracts under seal in reference to the subject matter of this suit, but the plaintiff claimed that subsequently they made a new parol

contract. The referee found that the parties acted under the sealed contract.

The defendant objected to the report that assumpsit would not lie upon an instrument under seal.

Alexander Dunnett for the defendant.

Assumpsit will not lie upon a sealed contract. Bulstrode v. Gilburn, 2 Strange 1,027; Toussait v. Martinnant, 2 Term. Rep. 100; Coeman v. Jenkins, 14 Mass. 93; Richards v. Killam, 10 Mass. 239; Warren v. Ferdinand, 9 Allen 357; Young v. Preston, 4 Cranch 239; Myrick v. Blason, 19 Vt. 121; King v. Lamoille Valley R. R. Co., 51 Vt. 369; Green v. Roberts, 5 Whart. (Pa.) 84; Fortenburg v. Tunstall, 5 Pike 263.

An amendment changing the form of action is not legally allowable. Stedman v. Grant, 12 Vt. 456; Waterman v. Railroad Co., 30 Vt. 614; Boyd v. Bartlett, 36 Vt. 14; Carpenter v. Goodwin, 2 Vt. 495; Bowman v. Stowell, 21 Vt. 313.

A reference cures only amendable defects. Saville, Somes & Co. v. Welch, 58 Vt. 683; Sumner v. Brown, 34 Vt.

194.

Smith & Sloane and R. M Harvey for the plaintiff.

A sealed instrument may be evidence in an action of assumpsit. Colgrave v. Fillmore, 1 Aik. 347; Smith v. Smith, 45 Vt. 433.

By the reference the defendant waived the right to object to the form of action. Eddy v. Sprague, 10 Vt. 216; Maxfield v. Scott, 17 Vt. 634; Clifford v. Richardson, 18 Vt. 620; Hicks v. Cottrill, 25 Vt. 80; Briggs v. Oakes, 26 Vt. 138; Briggs v. Bennett, 26 Vt. 146; Granite Co. v. Farrar, 53 Vt. 585; Lycoming Ins. Co. v. Billings, 61 Vt. 310; Stebbins v. Ins. Co., 59 Vt. 143.

The opinion of the court was delivered by

START, J. The action is assumpsit and the plaintiff seeks to recover for services in sawing lumber, drawing slabs, and for damages sustained by him by reason of the defendant's failure to furnish slabs pursuant to his agreement. These items are all provided for in a written contract under seal and from the facts reported by the referee, we cannot say as a matter of law that the sealed instrument has been changed or modified.

By the sealed instrument the plaintiff was required to saw the lumber in question, the price to be paid therefor by the defendant and time of payment being provided for therein.

Each party was to pay one-half of the expense of drawing away the slabs and the defendant was to furnish the plaintiff with slabs for use in his engine. The referee has found that the sawing was done under this contract; that the defendant, under the contract, should pay one-half of the expense of getting the slabs away from the mill; and that the defendant failed to furnish the slabs stipulated in the contract. From these findings, it is clear that the parties have acted under the sealed contract, and that there has been no modification of it. There having been no subsequent parol modification of the contract, and the plaintiff having performed the service under the contract in reliance upon it, and the omission of the defendant being an omission to perform and keep the covenants contained in the sealed instrument, the action of assumpsit cannot be sustained. The plaintiff has a remedy by an action of covenant upon the sealed contract, and having this remedy he cannot waive it and bring assumpsit. Myrick v. Slason, 19 Vt. 121; Camp v. Barker, 21 Vt. 469; King, Fuller & Co. v. Lamoille Valley R. R. Co., 51 Vt. 369; Wood et al. v. Edwards et al., 19 Johns. 205; Codman v. Jenkins, 14 Mass. 93. In Myrick v. Slason, supra, it is held that when a party has a