manner that it cannot be removed without permanent injury to the
realty or to the property itself as a chattel. Ib.
3. A cider mill and a shingle mill standing on legs, and only
held in place by the belts which run them, and a circular saw-
mill so attached to the building that it can be removed without
damage to itself or the building, are chattels, and do not pass
under the mortgage.
1b.
If a respondent, upon an indictment for murder in the first de-
gree, is convicted of murder in the second degree, and thereupon
alleges exceptions, which are sustained, he may be again tried for
murder in the first degree. State v.
State v. Bradley, 465.
I. The defendant, being liable as principal to the plaintiff up-
on a promissory note, was adjudged an insolvent. During the
pendency of insolvency proceedings and after the granting of his
discharge, he was induced by the false representations of a surety
on the note and the assignee in insolvency to the effect that the
note had not been allowed against the insolvent estate, and that
his liability upon it would not be relieved by his discharge, to sign
from time to time renewals of the note. Held, that he could not
avoid his liability upon the last of these renewals by reason of
such false representations, for the parties who made them did not
represent the persons. First Nat'l Bank v. Fitts, 57.
2. While a promise by the payee at the time of obtaining a
promissory note not to enforce it, cannot be shown in defence to a
suit on the note, it may be shown that the note was obtained by
fraudulent representations of which the statement that it should be
returnable to the maker before maturity was one.
Wilbur v.
3. Held, that the evidence tended to show such fraudulent rep-
resentations.
The defendant was surety on the bond of a town constable
who had made default in the service of process. The plaintiff, as
the attorney of the party damaged by such default, fraudulently in-
duced the defendant to give the note in suit for the amount of the
default. Held, that it could not be affirmed as matter of law that
the defendant was not injured by the fraud, for his liability as
bondsman might never have been established against him. Ib.
See PARTNERSHIP 3.
FRAUDULENT CONVEYANCE.
As the law stood in 1886, the neglect of the listers to file in the
town clerk's office on or before September 15 a copy of the quad-
rennial appraisal, as required by R. L., s. 308, did not vitiate
subsequent grand lists based upon that appraisal. Smith v.
See TAX SALE I; TAXES 5, 6, 7, 8, 9, 10, II.
GENERAL COUNTS. See INSURANCE 12.
HARMLESS ERROR. See ERROR 2, 6, 8.
HABIT OF INTOXICATION. See EVIDENCE 24.
HIGHWAYS AND BRIDGES.
1. Upon the coming in of the report of commissioners appoint-
ed by the supreme court upon petition for the establishment of a
highway running through two towns, if the report fails to show
that a particular land owner had notice of the proceedings, and he
makes affidavit that he had no such notice, the report should be
recommitted, with instructions to give such notice and an oppor-
tunity for hearing. Walbridge v. Cabot and Walden, 114.
No. 16, Acts 1884, does not authorize the laying of a lane
less than three rods wide, to be used without gates and bars, for
such a lane is an open highway and not a pent road. Bridgman
v. Hardwick, 132.
3. A lane does not connect highways within the meaning of
that act unless each end terminates in a highway. Ib.
Under R. L., s. 2920, the selectmen may resurvey a high-
way whose boundaries and termini cannot be determined, provid-
ed the fact of the original survey be established. Trudeau v. Shel-
don, 62 Vt. 198, explained. Culver v. Fair Haven, 163.
5. Commissioners appointed by the county court upon an ap-
peal from the action of the selectmen, if they find that the original
boundaries cannot be determined, should then proceed with the
other questions in the case, and having failed to do so, their report
will be recommitted.
6. The selectmen took the land of the petitioners for a high-
way, and made an award of damages. The petitioners applied to
the county court for the appointment of commissioners, and sub-
sequently, pending those proceedings, built upon the land taken.
Held, that they were entitled to damages for the taking of their
land in the condition and situation it was at the time of the pro-
ceedings before the selectmen. Lloyd & Culver v. Fair Haven,
167.
I. Under our statute subjecting a homestead to attachment
upon causes of action existing at the time," the homestead is at-
tachable upon a note given after its acquisition in renewal of a
note existing before. Robinson v. Leach, 128.
2. When the plaintiff seeks to charge the homestead of the de-
fendant with the judgment to be obtained, he may waive those
items in his account which accrued subsequently to the acquiring
of the homestead. Titus v. Warren, 242.
3. It is the existence of the cause of action, and not whether
the demand is due, which determines the liability of the home-
stead. Ib.
4. A dwelling house in process of erection may be exempt
from attachment as a homestead. Woodbury v. Warren, 251.
5. The rule stated in Rice v. Rudd, 57 Vt. 6, affirmed.
I. There cannot be a conviction, upon a single count, of keep-
ing a house of ill fame at two different places, for the keeping at
each place is a distinct offence. State v. Plant, 454.
2. In a prosecution for keeping a house of ill fame, evidence of
the reputation of the house is irrelevant and inadmissible, for
(a) The words "ill fame" in the statute refer to the character
of the place in fact and not to its repute, so that its reputation is
not an element of the offence to be made out by the state; and
(b) Reputation that the house is one of ill fame is not evidence
tending to show that fact. Ib.
A wife may prove as a debt against the insolvent estate of
her husband his note which has become her property by inheri-
tance. Purdy v. Estate of Purdy, 56.
2. The rule as to what equitable demands may be proved is the
same with insolvent estates as with the estates of deceased persons.
16.
3. The wife is a competent witness in a suit to establish her
claim against the insolvent estate of her husband. Ib.
4. Husband and wife may join in an action for trespass to the
real estate of the wife if the husband has any marital rights there-
in. Whether they can so join in case of real estate held to the
sole and separate use of the wife, is not decided. Swerdferger
and Wife v. Hopkins, 136.
5. The husband and wife being properly joined as parties, the
wife was a competent witness. Ib.
6. The husband is properly joined as a co-plaintiff and may
testify if so joined in a suit for an injury to the realty of the wife,
which is not held to her sole and separate use; and real estate
given by the husband to the wife is not so held. Minard v. Cur-
rier, 489.
HYPOTHETICAL QUESTION. See TRIAL 19.
ILL-FAME. See HOUSE OF ILL-FAME I, 2.
INDICTMENT. See PERJURY I.
See CRIMES AND OFFENCES 2; PRAC-
INJUNCTION. See LATERAL SUPPORT 2.
I. A wife may prove as a debt against the insolvent estate of
her husband his note which has become her property by inher-
itance. Purdy v. Estate of Purdy, 50.
2. The rule as to what equitable demands may be proved is
the same with insolvent estates as with the estates of deceased per-
sons. Ib.
3. A non-negotiable claim, which has been assigned, may be
proved against an insolvent estate in the name of the real owner.
Ib.
4. So if a wife has received by inheritance a note signed by her
husband she may prove it in her name against his insolvent estate,
although it is not negotiable in form, or, being negotiable, has not
been endorsed. Ib.
5. The suit being to recover property conveyed in fraud of the
insolvency law, the amount of debts due the insolvent is material,
and the exclusion of evidence upon that subject error. Amsden
v. Fitch & Enright, 522.
6. Held, that evidence that a part of the proceeds from the
property conveyed was used to pay a note of the insolvent should
have been admitted. Ib.
7. As bearing upon his intent, the one taking the conveyance
may state that he had no doubt that the insolvent would pay his
debts in full. Ib.
8. The sale by a retail dealer of his entire stock in trade is not
made in the ordinary course of business, and is prima facie in
fraud of the insolvent law under R. L., s. 1861.
9. A sale by an assignee in insolvency, under order of court,
of mortgaged property, without notice to the mortgagee, cannot
affect the rights of such mortgagee under the mortgage.
Admr., v. Davis, 685.
I. At law a writing cannot be referred to and made a part of
the declaration, and such a reference adds nothing to the other
allegations. Cooledge v. Cont. Ins. Co., 14.
2. In declaring upon a contract containing an exception or
qualification, the exception or qualification must be set forth, and
a failure to do so will constitute a variance. Ib..
3. A declaration upon a policy of insurance promising to in-
sure the plaintiff against loss "except as hereinafter provided,"
must state the excepted instances. Ib.
4. So if the policy is to insure personal property contained in a
certain building, it is a variance to declare upon a promise to in-
sure the property generally without reference to its location. Ib.
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