pute, and that this agreement was left with the town clerk for safe keeping.

The plaintiff attempted to show the loss of this paper and to prove the contents thereof by secondary evidence, but the court excluded the testimony.

It appeared in the cross-examination of this witness that after the writing had been drawn Perley instructed him to bury a piece of wood in one of the old post holes upon the line claimed by the plaintiff, and upon re-examination the witness was allowed to state, under exception, that at the time Perley had stated to him that he wanted the piece of wood buried there to fix the location which they had then agreed upon. And that Perley further said at that time that he had occupied in the past up to the plum tree line.

One Taylor, a witness for the defendant, testified that he had surveyed the lot of the defendant and plaintiffs and had made a plan, which was put in by the defendant; that upon one occasion in talking with Perley about the boundaries of the lot, Perley had pointed out to him a post hole in the line claimed by the plaintiffs. Upon cross-examination the witness was allowed to state, subject to the defendant's exception, what Perley had said about the location of the line upon this occasion.

Pike, a witness for the defendant, testified that he occupied the defendant's premises for nearly one year in 1876, and again from 1885 to 1889. The defendant then offered to show by this witness that he had a talk with Judevine, the owner of the other parcel, and that Judevine pointed out the line of the land in dispute and told him where the line was, and that the line then pointed out was where the defendant now claimed it. This evidence was excluded by the court, under the exception of the defendant.

Johnson, a witness for the defendant, testified that in 1881 while working for Judevine, he piled some lumber belonging to Judevine on the lot in dispute. Upon cross-examina

tion the plaintiff was allowed to show, subject to the exception of the defendant, that in consequence of piling the lumber there Perley and Judevine, the then owners of the two lots, had some discussion in reference to the line, and that they then referred to a writing which had been drawn up between them for the purpose of determining where the line was.

In the opening of their case the plaintiffs put in proofs as to surveys, distances, and places where they claimed all the trespasses were committed, and the kind and character of those trespasses, and their occupation, etc. In rebuttal the plaintiffs were, under exception, allowed by the court, not in the exercise of its discretion, but as matter of strict legal right, to give in evidence measurements made by the witnesses of the plaintiffs, after the defendant had rested its case in reference to the plum tree line, and to show that certain trespasses were north of an old gateway to which the defendant had claimed.

In reference to the exceptions of the defendant to the charge of the court, the bill of exceptions was as follows:

re

"The defendant seasonably presented written requests to charge, which are referred to. The entire charge is referred to. The defendant excepted to the refusal of the court to charge in accordance with said quests, and to the charge as given upon the points covered by the requests. Defendant also excepted to the charge as to what the existence of the fences owned indicated if found to exist; to the charge as to the effect of the fences upon the possession of the plaintiff; as to its requiring fifteen years adverse possession on the part of the defendant to secure title, if the plaintiff had acquired one; to so much of the charge as related to ; to the charge that as against any proper title shown by the defendant, plaintiffs need do no more than show a prior possession."

Upon the argument of the case in supreme court no copy of the requests to charge, nor of the charge as given, was furnished the court.

After verdict the defendant moved in arrest of judgment, for that the description in the plaintiffs' declaration was insufficient. The court overruled the motion, and the defendant excepted.

The declaration described the locus as part of a given lot in a certain range, and referred to the record of the deed to the plaintiff.

Bates & May for the defendant.

The plaintiffs' declaration was insufficient. I Chitty, Pl., 494, 565, 605, 606; Davis v. Judge, 44 Vt. 500; Sparhawk v. Hall, 52 Vt. 624; Stephen's Pl., 220.

There was a variance between the declaration and the proof, in that the declaration counted upon a title in both the plaintiffs, while the proof showed title in the wife alone. Derragon v. Rutland Village, 58 Vt. 128; Fullerton v. Seymour, 5 Vt. 249; Armstrong and Wife v. Colby, 47 Vt. 359; Hayner and Wife v. Smith, 63 Ill. 430, S. C. 14 Am. Rep. 124; Davis v. Judge, 44 Vt. 500.

The husband was improperly joined. Shaw v. Partridge, 17 Vt. 627; Smith v. Fitzgerald, 59 Vt. 451; Wright and Wife v. Burroughs, 61 Vt. 390; White and Wife v. Wait, 47 Vt. 502; Hackett v. Hewitt, 57 Vt. 442.

If the wife can sue alone, then a misjoinder of her husband is fatal. Babb and Wife v. Perley, 1 Me.6; Burleigh v. Coffin, 22 N. H. 118; Barber v. Root, 10 Mass. 260; Van Note v. Downey, 28 N. J. L. 219; Sch. Domes. Rel., 142 et seq; Brown v. Sumner's Est., 31 Vt. 671; Fisk v. Bailey, 51 N. Y. 150.

The wife was not a competent witness. Handlong and Wife v. Barnes, 30 N. J. L. 69; Cook v. Avery, 37 Bk. U. S. S. C. 308.

The witness Nichols was improperly allowed to state his understanding as to the location of the line. Hackett v.

Amsden, 59 Vt. 553; Evarts v. Young, 32 Vt. 329; Hale v. Rich, 48 Vt. 217.

Fort's evidence as to the declarations of Judevine was inadmissible. Sylvester v. Noble, 42 Vt. 146; 1 Greenl., Ev., s. 108 et seq; Ellis v. Cleveland, 55 Vt. 358; Evarts v. Young, 52 Vt. 329.

What was developed in the examination of the witness Curtis as having been said by Perley in reference to the contents of the written instrument, was improperly received, as were also his declarations as to the extent of his occupancy. Putnam v. Fisher, 52 Vt. 191; Evarts v. Young, 52 Vt. 329; Hadley v. Howe, 46 Vt. 142; Wood v. Willard, 37 Vt. 386.

7. P. Lamson for the plaintiffs.

The amendment showing title in the wife, instead of in the husband and wife, was properly allowed. Dana et al. v. Sessions, 65 Vt. 79; Hathaway v. Sabin, 63 Vt. 527; Drown v. Forrest, 63 Vt. 557; Haldridge v. Same, 53 Vt. 546; Morey v. King, 49 Vt. 304; Bailey v. Moulthrop, 55 Vt. 13; Norcross v. Welton, 59 Vt. 50; Tillotson v. Prichard, 60 Vt. 94; Probate Court v. Sawyer, 59 Vt. 57; Patten v. Sowles, 51 Vt. 388; Myers v. Lyon, 54 Vt. 488; Myers v. Lyon, 51 Vt. 272; Casey v. Casey, 55 Vt. 518.

The suit was properly brought in the name of the husband and wife, for the husband had a beneficial interest in the premises. Smith v. Fitzgerald, 59 Vt. 453.

TAFT, J. I. The premises are described in the declaration as the lot deeded to the plaintiffs. The plaintiffs offered in evidence a deed from one Perley to the feme plaintiff; objection being made upon the ground of variance between the contract described in the declaration and the one offered in evidence, the court granted leave to amend the declaration, so as to describe the lot as the one deeded

to the feme plaintiff. This amendment did not change the parties nor the nature or cause of action. The court, therefore, had the legal right to permit the amendment to be made, and if the court had power to allow the amendment, its action was discretionary and not revisable. There was no error in granting the motion to amend. Bowman v. Stowell, 21 Vt. 309; Bates v. Cilley, 47 Vt. 1.

II. Can the husband and wife join as plaintiffs? Such was the law prior to No. 140, Acts 1884, as held in Smith v. Fitzgerald, 59 Vt. 451; it is urged that by section 2 of that act the law was changed, and that an action quare clausum for trespass upon the wife's land must be brought in her name alone such might be the result if the property was held to the sole and separate use of the wife, and the husband had no marital rights therein. It is unnecessary, however, for us to pass upon the question, for if the property in the case at bar was not held to the sole and separate use of the wife, the husband was properly joined. It does not appear from the record whether it was so held or not, for she may have acquired it during coverture by gift from her husband. If she did, the action was properly brought. As we cannot presume error, we must sustain the ruling of the court below.

QUESTIONS OF EVIDence.

III. I. The plaintiffs claim that they and the grantors in their chain of title had occupied the close in question to the fence on what is called the "plum tree line," and claimed title to the land by deed, and by adverse possession. John Nichols, a witness, called by the plaintiffs, who formerly owned and occupied the plaintiffs' premises, testified under exception that when he bought the place he understood from the description in the deed that the fence marked the line of his land. The defendant insists that the understanding of the witness was not admissible; to acquire title by adverse