creditors shall sign the agreement, and that the til such conditions were performed, nor could it debtor shall make the stipulated payment, or be urged that such conditions had become imgive certain security within a time named, the material. Jarvis v. Rogers, 3 Vt. 336. creditor signing is not bound thereby, if either of the conditions is not complied with. Ib. Dauchy v. Goodrich, 20 Vt. 127.

5. But such a condition may be waived, and is waived if the creditor, after non-compliance with the condition and with knowledge thereof, or without fraud on the part of the debtor, accepts the offered terms and releases his debt. Ib.

2. The condition upon which a note was executed was, that a certain suit should be |brought in the name of the payee for the benefit of the maker. The suit was brought, but the payee discontinued it. Held, that the condition was not duly performed. Ib.

3. Tender of performance. After one has tendered performance of a condition precedent, as the payment of money, and it has 6. The defendants made a general assign- been refused, it is not necessary to his remedy ment for the benefit of their creditors, the plain- that he bring the money into court. Washburn tiff being one. Afterwards they undertook a v. Dewey, 17 Vt. 92.

compromise by paying 25 cents on the dollar, 3. Performance prevented. It will aland drew up a paper to be signed by their cred- ways excuse the performance of a condition itors, certifying that for value received of S, precedent, that the performance was hindered they agreed with S that, on payment to them by the other party. Camp v. Barker, 21 Vt. respectively on or before February 1, 1863, of 469.

a sum equal to 25 per cent of their respective 4. A contracted with B to draw for him a claims against the defendants, they would sell quantity of saw-logs, B to furnish a certain and convey to S all their respective claims yoke of four-year-old steers handy for the puragainst the defendants. The plaintiff signed the paper February 15, 1863, adding to his signature "paid February 15, $222.87," this being the full amount of his claim, and so delivered the paper. In a day or two afterwards, one of the defendants, with money furnished by S, 5. Waiver of performance. The acceptoffered to pay the plaintiff the 25 per cent, ance of performance of a condition precedent which he declined to take, on the ground that after the day set in the contract, and unexthe time of payment by the terms of the paper plained, may furnish prima facie evidence that had expired. S, in making the compromise, the parties intended to revive the contract in acted as agent for the defendants, and for their its original terms; but this is not conclusive, exclusive benefit. Held, that the instrument and a different intent may be proved. Porter operated as a release of the original debt, and v. Stewart, 1 Vt. 44. 28 Vt. 267.

pose. B offered a pair of old oxen in place of the steers, and not so good for the work. Held, that A was not bound to accept the oxen, and was not liable for not doing the work. Bugbee v. Haynes, 43 Vt. 476.

not as an assignment to S;-and held, that 6. A mere mental determination to rest the signing of the instrument was an adoption "satisfied" with the non-performance of a conof it in every particular, except as to the time dition precedent, not notified to the party who when the 25 per cent should be paid; that this was to perform it, cannot be treated as a waiver became payable on demand, and that the plain- and as equivalent to performance. Manwell v. tiff could recover the 25 per cent only. Bowen| Briggs, 17 Vt. 176. v. Holly, 38 Vt. 574.

7. The plaintiff made a verbal contract with

7. A compromise agreement between a the defendants, to do all the wood work for the debtor and his creditors, fully executed, dis- building of a house for a specified price; and charging him from his debts by payment of a it was further stipulated that the contract percentage, is valid; and such release need not be under seal. Paddleford v. Thacher, 48 Vt.

574.

CONDITION.

should be reduced to writing, although not required by law to be in writing; and the plaintiff informed the defendant that unless this was done he should not do the work by the job. The contract never was written out, but the plaintiff went on and completed a large part of the work in accordance with the verbal contract, as if, and in the expectation that it would be

What is a condition precedent, and what not reduced to writing, the plaintiff sub-letting -CONTRACT, II.

part of the work. Held, that his conduct operated as a waiver of his right to have the con

1. Effect of non-performance. Where a tract reduced to writing, and that he could not note was executed and put into the hands of a now repudiate the verbal contract, and charge third person, but not to be delivered to the his work by the day. Paige v. Fullerton Woolpayee until certain conditions were performed; en Co., 27 Vt. 485.

-Held, that no recovery could be had upon it un- 8. In book account the plaintiff had charged

the contract price for building a barn, which, itself, and at or about the close of the year for by the contract, was to be done in a good, work- which it was claimed; and that any sum not manlike manner. The auditor reported that so demanded was waived, or relinquished; some portion of the work was not so done, but that the condition should not be so construed that upon its completion the defendant ac- as to permit the sums to be consolidated and cepted the barn upon the contract." Held to demanded together and after the lapse of sevmean that the contract was fulfilled to the satis-eral years; and that, without such yearly defaction of the defendant, and that this was a mand and non-payment, no valid cause of forconclusive waiver of any claim for deduction feiture had arisen. Buckmaster v. Needham, from the contract price. Seargent v. Seward, 22 Vt. 617. 31 Vt. 509.

14. Where a deed is made upon condition 9. Change of writing by parol. It is to become void upon failure to support the competent to show by oral evidence, as matter grantor and pay his debts, ejectment will lie of defense, a parol waiver of performance of the by the grantor, upon breach of either condition. conditions of a contract before breach, though Lamb v. Clark, 29 Vt. 273.

in writing and under seal, or within the statute 15. Where a deed was made upon condition of frauds; nor is it necessary that such altera- to become void, unless the grantee should suption should be upon any new consideration, if port the grantor and pay his debts;-Held, that acted upon. Laurence v. Dole, 11 Vt. 549. 30 if the grantee was obliged to furnish such supVt. 620. Sherwin v. Rut. & Bur. R. Co., 24 port elsewhere than at his own house-a point Vt. 347; and see Flanders v. Fay, 40 Vt. 316. not decided—there was no wrongful neglect 10. Effect as to action on the contract. so to do, working a forfeiture of the estate, The time of performance of a condition preced- where no request had been made to furnish ent in a deed cannot be enlarged by parol agree- such support elsewhere, and no notice given ment so that an action can be maintained upon that the grantor was in need of it; and that the the deed. Porter v. Stewart, 2 Aik. 417. 27 non-payment of one of the grantor's debts did Vt. 774. Sherwin v. Rut. & Bur. R. Co. Jos- not work such forfeiture, where the grantee lyn v. Taylor, 33 Vt. 470. 44 Vt. 395. | had never been called on for payment, and the 11. In case of such enlargement or change grantor had not paid it, nor been in any way by parol, if the party sues upon the contract damnified by it. Ib. specially, he must declare in assumpsit, treat- 16. The plaintiff and defendant made an ing the enlargement as having incorporated into indenture, by which the defendant conveyed to itself the terms of the original contract, and so the plaintiff a certain farm for the joint lives of all as resting in parol. Sherwin v. Rut. & Bur. the plaintiff and his wife, and the survivor of R. Co. Barker v. Troy & Rut. R. Co., 27 Vt. them, and the defendant covenanted that he 766. would occupy and carry on the farm without 12. To maintain an action upon a sealed in-sale or transfer, and from the avails and income strument, the performance of any condition would deliver to the plaintiff certain articles precedent must be averred according to the yearly, and would perform other specified serstipulation of the deed, and must be proved as vices, &c., for the maintenance of the plaintiff laid; and no parol agreement to enlarge the and his wife, &c. Held, that the plaintiff time or change the mode of performance, and acquired by the indenture an estate for life; performance according to such parol agreement, and that the defendant, as incident to his covecan be averred or proved in such action. But nants and to enable him to perform the same, where there is a covenant to perform a certain had a right to the occupancy of the farm; but thing at a certain time, if performance of an- that on failure to perform such covenant for other thing, or at a different time, be accepted maintenance, the plaintiff could maintain ejectin lieu of the other, it is an answer to an action ment without giving any notice to quit. Olcott for the non-performance of the thing stipulated. v. Duncklee, 16 Vt. 478. 19 Vt. 382. 20 Vt. The distinction is between pleading the matter 415. 36 Vt. 234.

as a defense, and making it the ground of an 17. Where A and B entered into a written action. Porter v. Stewart, 2 Aik. 417. Taylor contract that A should deed to B an undivided v. Gallup, 8 Vt. 349. half of his farm, and B should give back a life 13. Condition in conveyance. Where a lease, and should “take the farm to the halves, deed from father to son of one-third the farm or otherwise provide a decent and comfortable on which they resided was upon the expressed living for A and his wife during their lives, condition, that if the grantee should pay the &c.," and that B should have the farm "so grantor, or his wife, $30 yearly so long as either long as he fulfils the above agreement,” and the should live, "if they or either of them shall re-deed and the lease were afterwards given in quest the same, then this deed is good and accordance with the agreement and to effectuvalid-otherwise void;"-Held, that it was re- ate its provisions, but absolute in form, and quired that each sum should be demanded by without naming any of the terms of the written

contract, or referring to it, and there was no 22. Reservation. A, by deed of warranty. other consideration given by B;-Held, in conveyed certain lands to S, and in the premchancery; (1), that the written contract deter- ises of the deed, immediately following the demined what were the rights and liabilities of scription, was this clause: “Conditioned, that no the parties under the deed and lease, and the building or erection is ever to be made on said title which B acquired by the deed-viz., as land except a dwelling house and out-buildings conditional upon his fulfilling the stipulations for the same, or such other buildings and erecon his part, contained in the written agreement; tions as would not affect the rights, privileges (2), on neglect of which, A had the right to re- and interests of said A, or his heirs or assigns, enter upon the whole farm, and hold the same to a greater degree than a dwelling house and free of any right of B therein. Tracy v. Hutch-out-buildings as aforesaid would affect his and ins, 36 Vt. 225;-distinguished (p. 234) from their rights, interests and privileges; the said Duncklee v. Adams, 20 Vt. 415. A being now the owner of a house and land

18. The plaintiff conveyed his farm to the westerly of and near said premises; and condefendant, and took back a mortgage condi-ditioned, also, that no building is to be erected tioned for the support and maintenance of the on said land, which shall extend more than plaintiff during his natural life, &c. The con- twenty feet southerly of the main body of the dition of defeasance contained this provision: dwelling house now owned and occupied by the "or if I shall have an opportunity to sell said said A.” In all other respects said deed was farm and shall wish to do so, I shall have in the usual form of a deed without condition. the right to do so by paying or securing to Held, that said clause did not constitute a consaid W [plaintiff] such sum and in such man-dition, either precedent or subsequent; nor yet ner as the judge of probate for the district of a covenant, merely, that the grantor would Caledonia, for the time being, shall consider abide by the terms of the condition; but that will be right and just, &c." In an action of it showed, with the rest of the description, ejectment for breach of the condition to sup- what rights in the land passed to the grantee, port, the defense set up was a substituted se- and what were left remaining to the grantor; curity by the award of the probate judge. Held, that the contract required a concurrence of both conditions, viz: an opportunity and a desire to sell, before the judge of probate was authorized to act; and that for want of proof of the existence of these conditions, or of the former only, the award of the judge was wholly inoperative. Weeks v. Boynton, 37 Vt. 297.

that the land, with the use thus restricted, passed to the grantee, and the right to such restriction of the use remained to the grantor; and that neither the grantee nor his assigns could make erections on the land in violation of such restrictions. Fuller v. Arms, 45 Vt. 400.

23. A deed of land with a reservation of certain stone upon it, part of the realty, and the 19. The judge's award provided that the de-privilege of removing the same by a day named fendant should execute and deliver to the plain- and of leaving what stone the grantor should tiff, within a time named, a bond, with one or choose at that time, was construed to mean more sureties, to the acceptance and approval that, if removed by that time, the stone belongof the cashier of the Bank of Caledonia, condi-ed to the grantor; but, if not removed by that tioned, &c. Semble, that this conferred upon time, his right to the stone was gone. Holton the cashier a trust or discretion which, by the v. Goodrich, 35 Vt. 19. condition of the defeasance, was vested in the 24. Relief in equity. Where a party judge alone, and could not be shifted or dele- wholly fails to perform the condition of his congated to any other person. Ib. tract by the time stipulated, and gives no reas20. The plaintiff's counsel, at the time when onable excuse therefor, he will not be relieved the award was made, said in his presence that in equity, nor be entitled to a specific perfor"they were satisfied, and had come out better mance by a subsequent offer to perform. White than they had expected." Held, that the plain- v. Yaw, 7 Vt. 357.

tiff's silence when this remark was made could 25. Chancery will not relieve a party from not, as matter of law, be treated as equivalent the consequences of not complying with a conto such an acceptance of the award as would dition precedent, where the non-compliance change his rights under the mortgage. Ib. arose from his own inattention or negligence. 21. Limitation. In case of a deed con- Barnet v. Passumpsic Turnpike Co., 15 Vt. ditioned to become void unless a certain sum 757.

be paid by a day certain, the burden is on the 26. A court of equity may grant relief from promissor to prove such payment by the day; the forfeiture of an estate conditioned for the --otherwise a breach of the condition occurs, maintenance and support of the grantee.--this which operates by way of limitation of the es- not as a matter of course and under all circumtate; and in such case the law revests the estate stances, but it rests in the sound discretion of at once without formal entry. Austin v. Down- the court, according to the circumstances. If er, 25 Vt. 558. the breach of the condition is unintentional or

purely technical, and admits of compensation, relief will be granted-as in Henry v. Tupper, 29 Vt. 358. (Weeks v. Boynton, 37 Vt. 302. Austin v. Austin, 9 Vt. 420.)

I. POWERS OF LEGISLATURE.

1. Generally. American legislatures have the same unlimited power in legislation which 27. Aliter, where the breach is wilful and resides in the British parliament, except where wanton, or attended with suffering or serious they are restrained by written constitutions. inconvenience to the grantee, or where there is Thorpe v. Rut. & Bur. R. Co., 27 Vt. 140. good ground to apprehend a failure in future- 2. Rules of descent. It is competent for as in Dunklee v. Adams, 20 Vt. 415. the legislature to provide rules of descent of 28. Where a mortgage was given condi- real estate, and to change them from time to tioned for the support of the mortgagee, the time, provided the law is not retrospective. mortgagor made a second mortgage and then No one has a vested right of inheritance, before abandoned the premises and the further sup- a descent cast. Gilman v. Morrill, 8 Vt. 74. port of the mortgagee. On a bill of foreclosure 3. Mode of conveying estates. It is by the first mortgagee ;-Held, that the breach competent for the legislature to prescribe the admitted of compensation, and the second mode of conveying existing estates in property, mortgagee was let in to redeem, on the terms of especially real property;-as, that a wife must making compensation for the past and provid-join in the deed of her husband in conveying ing for the future support of the mortgagee. his interest in her lands, in order to the validity Austin v. Austin, 9 Vt. 420. of the conveyance. Peck v. Walton, 26 Vt.

29. The orator executed, as surety for anoth-82. er, a promissory note to the defendant, with the 4. Police power. The police power of the understanding that it was not to be delivered, State extends to the protection of the lives, or to be understood as taking effect, until the limbs, health, comfort and quiet of all persons, defendant complied with certain conditions. and the protection of all property within the But the defendant, having got possession of the State, and applies as well to chartered corporanote, refused to comply with the conditions. tions as to natural persons, though such conOn bill, the defendant was perpetually enjoined trol might materially affect the profits of the from negotiating the note and from enforcing corporation. Thorpe v. Rut. & Bur. R. Co., 27 it against the orator. Chase v. Torrey, 20 Vt. Vt. 140. Under it, the legislature has power to 395.

CONSPIRACY.

require existing railroad corporations to maintain cattle guards at all crossings, although not provided for in the charter; and may, by general laws, impose upon railroads new conditions of like character, which are conducive to the public interest, to the extent of not destroying, or

the corporation. Ib. Nelson v. Vt. & Canada R. Co., 26 Vt. 717.

1. In an action on the case against two or essentially modifying, the essential franchise of more in the nature of conspiracy, the conspiracy charged is important only as it serves to give character to the individual acts of those who 5. over private corporations. The were parties to it. The gist of the action is the legislature may control the action, prescribe damage sustained by the plaintiff, by reason of the functions and duties of corporations, and the fraud of the defendants. Sheple v. Page, impose restraints upon them to the same extent 12 Vt. 519. as upon natural persons, that is, in all matters 2. Where two or more combine together for coming within the range of legislative authorthe same illegal purposes, each is to be con-ity, subject to the limitation of not impairing sidered as the agent of the others, and the act the obligation of contracts, provided the essenof one, in pursuance of the object, is, in legal tial franchise is not taken without compensacontemplation, the act of all. Ib. State v. Thibeau, 30 Vt. 100. Windover v. Robbins, 2 Tyl. 4.

3. Their declarations stand upon the same ground. State v. Thibeau. Jenne v. Joslyn, 41 Vt. 478. 43 Vt. 52.

tion.

Thorpe v. Rut. & Bur. R. Co. State v. Bosworth, 13 Vt. 402.

6. Power over municipal corporations. The legislature may exercise over municipal corporations [as towns], exclusive control, and may constitutionally enlarge, restrain, and even destroy their municipal existence, as the public interests may require; and may control the disposition of their property held for municipal and corporate purposes-as by dividing it between the towns into which the old town may be divided. Montpelier v. East Montpelier, 29 Vt. 12. 8. C., 27 Vt. 704.

7. This right over towns is not defeated nor

affected by the fact that the town is, by its and the public has no rights whatever in them, charter, made the trustee of property for other or to the use of them. Held, therefore, that purposes than corporate and municipal use. the flowage acts of 1866-7-8, professing to Ib. authorize the flowing of the lands of others for 8. But such grants in trust for other pur- the benefit of such mills, upon compensation poses than corporate and municipal use, are no ascertained and paid, were not justified by the more the subject of legislative control, than are constitution authorizing the taking of private the private and vested rights of individuals. property for public use. (The flowage acts of Ib. 31 Vt. 238. Poultney v. Wells, 1 Aik. Massachusetts and the decisions of the courts 180. of that and other States on this subject consid

9. The legislature has constitutional power ered.) Ib. to confer upon municipal corporations the right 15. Law affecting former grant. It is to make assessments upon the property bene- well settled, that where there has been a legisfitted, for the purpose of defraying the expenses tive grant to a private corporation to erect a of making local improvements. Woodhouse v. bridge, turnpike, or other public convenience, City of Burlington, 47 Vt. 300. which is not in its terms exclusive, there is no 10. Hunting, &c, Laws regulating hunt- constitutional obligation on the legislature not ing, fowling and fishing, are not in violation of to grant to a second corporation the right to the constitution of the State (section 40), unless erect another bridge, or turnpike, for a similar clearly shown to be so prohibitory as to virtually purpose, to be constructed so near the former deprive the inhabitants of the right secured. as greatly to impair, or even to destroy its State v. Norton, 45 Vt. 258.

value; and this, without making compensation to the first corporation for the consequential injury. White River T. Co. v. Vt. Central R. Co., 21 Vt. 590. 27 Vt. 152.

11. Retrospective legislation. Statutes, retrospective in their operation, are valid, with this qualification, that they do not impair the obligation—that is, the legal obligation—of con- 16. Taking franchise for public use. tracts, or disturb absolute vested rights; or, in The essential franchise of a private.corporation other words, the legislature may change and is private property, and cannot be taken withmodify remedies, forms of proceedings, or the out compensation, even for public use; but tribunal itself, as it may choose, but it shall may be taken for public use by making comnot directly, nor indirectly, destroy or abolish pensation-as the franchise of a turnpike corall remedy whatever, by which the performance poration, or of a bridge corporation, for the use of any class of valid, legal contracts may be of a public highway, under G. S. c. 24, s. 79. enforced. Poland, C. J., in Richardson v. Cook, Armington v. Barnet, 15 Vt. 745. West River 37 Vt. 603. Bridge Co. v. Dix, 16 Vt. 446. 27 Vt. 151;-or 12. Taking for public use. Where the for the use of a railroad,—which is an improved use is a public one, it rests wholly with the highway,-when authorized by the charter of legislature to determine whether sufficient the railroad company. White River T. Co. v. necessity exists to justify granting the power Vt. Central R. Co., 21 Vt. 590.

to take private property therefor, and courts will not interfere with the discretion of the legislature at least, not unless the entire absence of any necessity be shown. Poland, J., in Williams v. School District, 33 Vt. 280.

II.

CONSTRUCTION.

17. Construction. Questions arising under the constitution, settled by a long practice, and sanctioned by a judicial decision, should be considered as at rest. State v. Bosworth, 13

13. But the legislature has not the power to so determine that a use is a public use as to make that determination conclusive, but the Vt. 402. existence of the right in the legislature, in any 18. Art. V. of the Amendments to the U. class of cases, is left to be determined under S. Constitution, which provides that "no perthe constitution by the courts. The attempt son shall be held to answer for a capital, or of the legislature to exercise the right of emi- otherwise infamous crime, unless on a presentnent domain does not, therefore, settle that ment or indictment of a grand jury," has referit has the right. Tyler v. Beacher, 44 Vt. ence solely to proceedings in the courts of the United States. State v. Keyes, 8 Vt. 57. 14. Under the statutes of Vermont, the 19. The same is true as to Art. VII. of the owners and occupiers of grist-mills are required amendments providing for trial by jury in suits to grind well and sufficiently all grain received at common law. Huntington v. Bishop, 5 Vt. by them for that purpose, at certain fixed rates 186, 193. 8 Vt. 64.

648.

of toll, but they are not compellable to receive

grain for grinding against their will. Their See STATUTE, II.; INTOXICATING LIQUOR, I.; mills are their own private property, subject to JURY, III.; TAXES, I.; CITY Of Burlington. ; their own control, except as to that regulation, GRANTS.