and the defendant's close by the recognition and acquiescence of the owners of both closes, and of right ought to be maintained for the protection of the defendant's close and crops, and that at the said several times when, etc., it was the duty of the plaintiff to keep said gate closed, and if any trespass was committed as alleged, it was by reason of the plaintiff's neglect and refusal to keep said gate closed or to allow it to be maintained and by reason of his tearing down a sufficient gate that had been kept and maintained as aforesaid.

The causes of demurrer assigned are, that the rejoinder is argumentative, double, and hypothetical. It is also claimed that it departs from the plea, and that this objection can be taken advantage of under the general demurrer.

The plaintiff attacks the plea as bad in substance, for that it does not show a prescriptive nor other obligation on him to keep and maintain said gate. But if this is so, the fact that there was a gate there in the division fence that the plaintiff and those under whom he claims had kept and maintained for the purpose and in the manner alleged, which was sufficient to stop cattle, and which he tore down, and through which, by reason thereof, the cattle escaped into his close and did the damage complained of, makes the plea good, regardless of whether he was bound or not to maintain the gate, for thereby, in the circumstances disclosed in the plea, he became and was a wrongdoer, and the author of his injury, and therefore cannot be heard to complain.

The next question is whether the replication is good in substance. The public highway mentioned therein is not alleged to be an open highway, and as everything is to be taken most strongly against the pleader, it must be taken to be a pent highway, which fulfils the allegation. It is conceded that the replication is bad if pent roads do not stand like open highways in the law of fences.

The statute provides that owners or occupants of adjoining lands, when the lands of both parties are occupied, shall

make and maintain equal portions of the division fence between their respective lands; but that the owners of lands are not bound to make and maintain fences on the sides of highways; and that occupied land bordering upon highways shall be deemed the enclosure of the owner or occupant.

R. L. 3178, 3179. It also provides that when the lands of

two or more individuals are so situated that either is not compelled to make and maintain a fence on the dividing line between their lands by reason of highways lying between, each owner or keeper shall be liable for the damage done on the occupied lands of others by an animal straying from his lands and being taken on such occupied lands. R. L. 3183. Concerning pent roads it provides that the selectmen may allow them to be enclosed and occupied by the owner of the land during any part of the year, and bars and gates, in such places as they designate, to be erected thereon; and persons wilfully removing any such bars or gates, thereby exposing the lands or crops of any person to damage, are subjected to a penalty. R. L. 3004, 3005. In Walcott v. Whitcomb, 40 Vt. 40, it was held that in the absence of regulations by the selectmen upon the subject, the owner of the land has a right to erect bars and gates on a pent road for the protection of his field and crops if he does not thereby interfere with the reasonable use of the road as a pent road.

Although the statute uses the general term "highways,” in providing that owners of lands are not bound to make and maintain fences on the sides of highways, and does not in terms distinguish between open public highways and pent roads, which are public, but not open, highways—yet, when all the provisions of the statute on the subject are construed together, as they must be, it is considered that the term "highways," as used, was not intended to include, and does not include, pent roads.

The statute that the selectmen may allow pent roads to be

inclosed and occupied by the owner of the land, and bars and gates to be erected thereon, we construe to embrace a case like this, where the road is wholly on the land of one but contiguous to the land of another; and that section and the one imposing a penalty for wilfully removing such bars and gates, thereby exposing the lands and crops of any person to damage, clearly indicate that the owner may occupy the road as a part of the field through which it runs, and that his occupancy of his field shall not be interfered with by the road any farther than is necessary for the reasonable use of it as a pent road; from which it logically follows that the rights and obligations between him and an adjoining owner in respect of division fences remain unaffected by the existence of the road.

This statute thus construed is inconsistent with the idea that the defendant was bound to restrain her cattle from going upon said road and thence into plaintiff's close the same as she would have been had said road been an open highway; and it qualifies and restricts the statute that owners of lands are not bound to make and maintain fences on the sides of highways, and renders it inapplicable to pent roads, and leaves applicable to this case the statute that owners and occupants of adjoining lands, when the lands of both parties. are occupied, shall make and maintain equal portions of the division fence between their respective lands.

It is frequently necessary to qualify and restrict general words in a statute, in order to harmonize the provision with other provisions and give them force and effect. Another instance of this kind may be found, we apprehend, in the statute against nuisances and obstructions in highways, which provides that if a person incloses a part of a highway, or erects a fence upon a highway, he shall incur a penalty. Here the general term "highway" is used, the same as in the statute we have been considering, yet no one would claim, we presume, that the statute intends to make it

unlawful for the owner of the land through which a pent road runs, in the absence of regulations by the selectmen, to erect gates and bars thereon for the protection of his field and crops, as this court has decided he has a right to do.

We decide, therefore, that the replication is bad in substance, which renders it unnecessary to consider the other questions raised and discussed at the bar.

Judgment affirmed and cause remanded.

TOWN OF BARRE AS SCHOOL DISTRICT

V.

SCHOOL DISTRICT NO. 13 IN BARRE.

MAY TERM, 1894.

Adoption of town system of schools.

I.

2.

Who is entitled to

funds of school districts when abolished.

A school district is a political division created by the state to carry out its policy to educate its youth, and holds any funds coming to it for that purpose as a trustee.

The state may change the territorial limits of school districts at will, and such change simply amounts to a change of

trustees.

So when the Legislature by Nos. 20 and 21, Acts of 1892, abolished existing school districts, and made each town a district charged with the education of its youth, the town became entitled to the funds held by the districts for gen

eral educational purposes, and to any taxes assessed, but not collected.

4. The collection of uncollected taxes would be a settlement of its pecuniary affairs for which the existence of the district is continued by said acts.

Assumpsit. Heard upon an agreed statement of facts at the March term, 1894, Washington county, TYLER, J., presiding. Judgment pro forma for the defendant. The plaintiff excepts.

John W. Gordon and Barney & Hoar for the plaintiff.

The legislature has supreme control over the funds of municipalities. Montpelier v. East Montpelier, 29 Vt. 12; 1 Dill., Mun. Cor., ss. 66, 187; Laramie County v. Albany County, 92 U. S. 307; Cool., Const. Lim., 192; 1 Greenl., Ev., (4th Ed.), s. 331; Darlington v. New York, 31 N. Y. 164; Railroad Co. v. Ellenan, 105 U. S. 166.

When a municipality is abolished and no provision made as to its funds, they belong to its successor. I Dill., Mun. Cor., s. 186; Mount Pleasant v. Beckwith, 100 U. S. 514; School District v. Tapley, 1 Allen 49; Stoneham v. Richardson, 23 Pick. 68; Thompson v. Abbott, 61 Mo. 176.

Funds collected by school districts for school purposes are held in trust for the state. Stoneham v. Richardson, 23 Pick. 62, 69; Ford v. School Dist., Kendall Burrough, 1 L. R. A., 607; School Dist. v. Bridport, 63 Vt. 383, 390; Indiana ex rel. v. Waworth, 7 L. R. A., 240; East Hartford v. The Hartford Bridge Co., 10 How., 511; Willimantic School Soc. v. First School Soc., 14 Conn. 456.

W. A. & O. B. Boyce for the defendant.

The funds in the hands of the school district belong neither to the town nor the district, but to the taxpayers of the district. School Dist. No. 1 v. Bridport, 63 Vt. 383.