action against the company for indemnity, that could not be declared as matter of law; that the town was entitled to recover the amount of the defendant was liable for such damage, if it that judgment and their costs and expenses of was the natural consequence of his neglect that suit. Duxbury v. Vt. Central R. Co., 26 under the particular facts of the case which Vt. 751. were known to him, and such a consequence as 15. Interest. Whether interest, eo nomine, he might reasonably have anticipated, and that is recoverable in an action of tort or not, the this was a question for the jury. Saxton v. jury may take time into consideration in fixing Bacon, 31 Vt. 540. See Holden v. Rutland & upon reasonable damages. Lindsey v. Danville, Burlington R. Co., 30 Vt. 297. 46 Vt. 144. 21.. Part of main trespass. An injury 16. Conversion of choses in action. In done by the defendant's calf upon the plaintiff's trover to recover for notes, or other choses in land after a trespass by breaking in, though not action, executed by persons other than the de- such as cattle by nature are wont to commit fendant, and wrongfully detained, the rule of -as breaking down a tree-and not of itself damages is the value of the property. This, alone a trespass of the defendant, was held to prima facie, is the amount due on the instru- be an aggravation of the trespass committed by ment, but subject to proof of actual value. But the entry, and that such damage could be rewhere the notes were executed by the defend- covered with the damage done by the trespass ant himself, the rule is the amount due, with- of which it was a part. Keenan v. Cavanaugh, out reference to the ability of the defendant to 44 Vt. 268. pay. Robbins v. Packard, 31 Vt. 570. 22. To what time computed. The right 17. Where the plaintiff gave a promissory of action being established, damages are to be note to the defendant payable to the defendant's computed to the time of trial, although accruorder, but solely for the accommodation of the ing after the commencement of the action. defendant, which note the defendant got dis- Lowry v. Walker, 5 Vt. 181. Spear v. Stacy, counted for himself and afterwards paid, and 26 Vt. 61. then claimed that the plaintiff owed the note, 23. Prospective. Since a party injured and refused to deliver it to the plaintiff on de- can have but one action to recover the damage mand, insisting upon the plaintiff's indebted therefor, he is allowed in that action to recover ness thereon ;-Held, that by reason of the de- not only the damages already accrued, but such fendant's claim to the note as a valid instru- as the jury find will accrue to him in future ment, the plaintiff had a right to it, and could from the same cause. Fulsome v. Concord, 46 maintain trover for a conversion of it, as a Vt. 135. Whitney v. Clarendon, 18 Vt. 252. piece of property; but was entitled in such ac- 24. In an action for a personal injury, the tion to recover only its value as property, being nominal damages. Park v. McDaniels, 37 Vt. 594. court charged the jury, in respect to prospective damages, that they should reduce such losses to their present worth, or to such a sum 18. But, under a special count in case, ad- as, being put at interest, would amount to the ditional damages might be given, and were so sum they found the plaintiff would lose in the given upon the report of a referee-the action future by the injury. Held, that as the effect admitting of an amendment of the declaration of this suggestion, if it had any effect, would to conform to the report. Ib. be to lessen the damages, the defendant could not complain, and it was not legal error. Fulsome v. Concord. 19. Ordinary consequences. In an action by purchaser against seller for the false warranty of sheep as sound, and averring that 25. Exemplary. In actions of trespass, or they were affected with an infectious disease, case for a tort, damages beyond the amount of and alleging as special damages that they com- compensation for the actual loss suffered, municated such disease to other sheep of the whether called exemplary, punitive or vindicplaintiff ;-Held, that the placing of these sheep tive damages, or smart-money, may be allowed, with others was such a natural and ordinary dependent on the evil motive of the defendant, act and mode of using them, that it was not as well as the circumstances of insult and innecessary, in order to recover such damages, dignity to the plaintiff. Devine v. Rand, 38 to aver or prove that the defendant knew or Vt. 621. Ellsworth v. Potter, 41 Vt. 685. Edwas informed of such intended use. Packard wards v. Leavitt, 46 Vt. 126. v. Slack, 32 Vt. 9. (Mullett v. Mason, 1 Law Rep. C. P., 559.) 26. This doctrine applied to the case of a wilful cheat in the weighing of butter purchased. Nye v. Merriam, 35 Vt. 438. 20. Question for jury. Where the plaintiff's horse escaped upon the defendant's land, 27. It has long been settled in this State, through a defect in that part of the division and correctly settled upon sound reasons, that fence which the defendant was bound to main- in actions of this character-assault and battain, and was there gored by the defendant's tery-the jury may give exemplary damages. bull;--Held, that the liability for such damage It is not an innovation of the common law; it is the common law. Edwards v. Leavitt, 46 Vt. about which the dispute which caused the as126. sault arose. Held not admissible. Wright v. 28. Exemplary damages are given in en- Page, 2 Tyl. 80. hancement, merely, of the ordinary damages, 35. Cases of conversion. Where A drew on account of the bad spirit and wrong inten- logs to B's saw-mill to be sawed at the halves, tion, malice, or wantonness of the defendant or the sawing to be otherwise paid for by A at manifested by the act, and are recoverable, his election, and B sold all the boards sawed with the ordinary damages, under the common and received the pay;-Held, that he was liable allegation of damage to the plaintiff. Hoadley to A in trover; but in assessing the damages v. Watson, 45 Vt. 289. Earl v. Tupper, 45 Vt. the jury were allowed to deduct the price of 275. It would probably be error to charge that the sawing. Vickery v. Taft, 1 D. Chip. 241. the plaintiff is entitled to exemplary damages. 21 Vt. 211. 27 Vt. 287. This is not matter of legal right. Jerome v. Smith, 48 Vt. 230. Boardman v. Goldsmith, 48 Vt. 403. 29. An administrator, in an action for injuries to his intestate, may recover exemplary damages in a case where his intestate might. Earl v. Tupper. 36. In trover, the fact that the property, subsequent to the conversion, has gone back into the possession and control of the plaintiff and to his use, does not bar the action, but goes in mitigation of damages. Yale v. Saunders, 16 Vt. 243. 37. Where one's property was wrongfully 30. It is no bar to the recovery of exemplary taken and sold, and he procured it to be bid in damages in an action for an assault and battery, for himself at the auction sale, and then approthat a criminal prosecution is pending against priated it to himself ;-Held, that the rule of the defendant for the same assault; nor (Peck, damages was not the value of the property, but J.,) would it be, if there had been a trial, con- the price at which it was sold there being no viction, sentence and judgment in the State evidence of further damage. Hurlburt v. Green, prosecution. Edwards v. Leavitt, 46 Vt. 126; 41 Vt. 490. --nor is liability to the imposition of a fine in a criminal prosecution, a bar to any portion of the defendant's liability to exemplary damages in a civil suit for the same cause. Hoadley v. Watson, 45 Vt. 289. 31. In awarding exemplary damages, the jury are to be governed wholly by the malice or wantonness of the defendant, as shown by the conduct they find him liable for in the action. The plaintiff's expenses of the suit for counsel fees and trouble, not taxable as costs, are not to be considered as an element in such damages, and cannot be allowed. Earl v. Tupper, 45 Vt. 275. Hoadley v. Watson. 38. In trover for assisting the plaintiff's wife, who had separated from him, in removing the plaintiff's furniture;-Held, that the fact that the articles went to the use of the wife after such separation did not so go to the plaintiff's benefit, as to reduce the damages below the value of the property. Crumb v. Oaks, 38 Vt. 566. 39. Where the property wrongfully taken by the defendants was afterwards taken from their possession on an attachment against the plaintiff, and the same was sold on the attachment and the avails applied on the execution; -Held, that the defendants were liable for 32. In actions for a tort where exemplary damages only to the time of the attachment, damages are allowable, the intent being irrespective of whether or not the officer promaterial, evidence of acts and words before or ceeded legally with the property after the atafter the principal transaction, not too remote tachment. Montgomery v. Wilson, 48 Vt. 616. in point of time but about the time, and which 40. In actions against constables, &c. tend to show the defendant's intention and dis- The defendant, a constable, took property out position in the principal act, is admissible. of his precinct, on mesne process and brought Devine v. Rand, 38 Vt. 621. it within his precinct, when he was sued in 33. In case by husband and wife for injury trespass therefor by the plaintiff, who claimed to the wife by being bitten by the defendant's the property by virtue of a purchase from the dog, the defendant was not allowed to show, as debtor which was fraudulent as to his creditors. a reason why the suit was brought and as bear- After the commencement of the trespass suit, ing on the question of exemplary damages, that the defendant, as constable, made a second rea short time before the day of the injury turn of attachment of the same property, withthe plaintiff set his dog and the defend- in his precinct, upon the same process. At the ant's dog to fighting, and that the defendant time of the trial of the trespass suit, the suit in parted them and reproved the plaintiff. Bates which the attachment was made was still pendv. Cilley, 47 Vt. 1. ing. Held, that such second attachment went 34. Mitigation. In an action for assault in mitigation of damages, and the plaintiff was and battery, the defendant offered to show, in allowed nominal damages only. Stewart v. mitigation of damages, a seisin in himself of Martin, 16 Vt. 397. the land and property in the crops thereon, 41. In an action of trespass against an of ficer and an attaching creditor who had taken chase, the jury should have been limited to the property of the plaintiff upon a writ against such prices as the value. Blumenthal v. Brain another in had person, the defendants offered to prove erd, 38 Vt. 402. mitigation of damages, that a third person 47. Assessment. In an action on the receipted the property to the officer, and case, the declaration averred that the defendthat the plaintiff had afterwards, and after the ant had conveyed certain lands to the plaintiff commencement of this suit, assigned all his in- by deed of warranty, and received the deed terest in the property and claim to such receipt- from the plaintiff under a promise to procure it or, and that the receiptor had the property in to be recorded in the proper office, but that he his possession; but, inasmuch as it appeared fraudulently neglected to get the deed recordthat the officer had demanded the property of ed, but kept it and refused to deliver it to the the receiptor on the execution issued, and still plaintiff, whereby he "had deprived the plainheld the receipt, and that the defendants had tiff of any title to the land and all benefit not relinquished their claim to the property;-from the deed." After judgment for the plainHeld (by a majority), that the evidence was tiff on demurrer ;-Held, that the plaintiff was not admissible. Ellis v. Howard, 17 Vt. 330. entitled to have the damages assessed at the full 42. A writ against the body, issued upon value of the land, by reason of the admission affidavit filed, was committed to a constable for implied by the demurrer that he had been deThe constable erroneously thinking prived of all title to the land, &c. Hyde v. he was not, under the circumstances, bound to Moffat, 16 Vt. 271. Redfield, J., dissenting. serve the writ without indemnity, returned it 48. In cases of judgment on demurrer, by to the creditor, stating his reasons for not serv-default, or nil dicit, the plaintiff is entitled to ing it. In an action by the creditor against the only nominal damages, except where the assesstown for such default ;-Held, that it was prop- ment is mere matter of computation,-as in er to be taken into account, in mitigation of dam-case of a bond, bill, note, or other contract. In ages, that for several months after such return all open actions, if the plaintiff claims damages of the writ, the debtor continued publicly to re- beyond nominal, they must be ascertained on side in the same place without any change in inquiry; as, by the court, or by some person his circumstances, and so that his body could appointed, or by a jury. Webb v. Webb, 16 Vt. have been arrested upon a new writ. Blodgett 636. 37 Vt. 154. v. Brattleboro, 30 Vt. 579. Woolcott v. Gray, 49. In debt upon bond conditioned to in service. Brayt. 91. 43. In demnify the plaintiff against certain debts, the an action against a constable, or the declaration assigned as breaches, in general terms town, for his neglect to keep the attached prop- and round numbers, that the plaintiff had been erty so as to be taken in execution, it cannot compelled to pay said debts and that the defendbe shown, in mitigation of damages, that the ant had not indemnified him. The defendant creditor might, by a new process or new execu- pleaded in bar an accord and satisfaction, and tion, obtain satisfaction of his debt. He has a a set-off, but introduced no evidence in support proceed against the specific property of his plea in bar. Held, that without proof of Bowman v. Barnard, 24 Vt. 355. damages the plaintiff was entitled to nominal 44. Crim. con. In an action for criminal damages only; that the case stood as on a conversation, the defendant may, in mitigation judgment by default, nil dicit, or on demurrer. of damages, prove the plaintiff's criminal con-b. right to attached. nection with other women at any time after his 50. On the assessment of damages after a marriage and before trial. Shattuck v. Ham- default, in an action of trover; Held, that mond, 46 Vt. 466. matter which might have been given in evi45. General rule Goods converted or dence, under the general issue, to defeat the lost. The rule of damages, in an action for action altogether, may be received in mitigaa conversion, is the value of the property at tion of the damages to a nominal sum. the time of the conversion, and interest there- v. Smith, 16 Vt. 9. after; and not an increased value which the Collins 51. Where a suit is brought upon an instru property may thereafter have acquired,- --as ment which, as a contract, shows both the by the growth of a calf. Thrall v. Lathrop. 30 cause of action and the measure of the plain Vt. 307. 46. tiff's right specifically, the production of the inWhere goods forwarded from New strument entitles the plaintiff to damages acYork to St. Albans by a common carrier cording to that measure, and they are to be aswere lost at St. Albans;-Held, in an action certained by mere computation; and the defor the loss, that the rule of damages was fendant cannot, in such case, on the assessment the value of the goods at St. Albans at the time of damages after judgment by default, nil dicit, of the loss, deducting the freight unpaid, and or demurrer, or on setting his case down as adding interest; but there being no evidence of "not for the jury," prove matters affecting the value except the prices stated in the bill of pur- validity of the contract, nor show a superven DEDICATION. ing matter of defense. Sweet v. McDaniels, 39 Vt. 272. Bradley v. Chamberlain, 31 Vt. 468. See Webb v. Webb, 16 Vt. 636. Redfield, J., in 1. What constitutes-and evidence of Hyde v. Moffat, 16 Vt. 284. dedication. The enjoyment of a public high52. Whenever the cause of action must be way, square, common, or any other common proved precisely as alleged, and, when proved, privilege or immunity, though for a period furnishes of itself a rule of damages, the plain- short of fifteen years, may afford conclusive tiff after judgment is entitled to the amount of evidence of a right so to enjoy. The dedicadamages indicated by that rule, in the absence tion need not be by deed, but it is sufficient if of all proof to vary it; and the form of action the owner of the soil by some unequivocal act can make no difference in this respect. Brad- manifests his intention to dedicate the land to ley v. Chamberlain. public use, and, in consequence thereof, indi53. In an action of trespass against some of viduals have embarked in any undertakings, or several co-trespassers, on the assessment of dam- invested property which will be materially afages after a preliminary judgment without trial; fected, if such intention should be altered or -Held, that payments made by others of such changed. In such case, the donor cannot reco-trespassers are applicable pro tanto towards claim the dedication, but he retains the fee subthe damages, and may be proved although not ject to the public use. Abbott v. Mills, 3 Vt. pleaded in the action. By Steele, J.: "We do 521. State v. Wilkinson, 2 Vt. 480. not understand, that upon the assessment of 2. Where a piece of land is thrown or left damages after a judgment passed without trial open by the owner for public use as a common after a failure to procure a continuance, the thoroughfare, without any intent manifested to court look into the pleadings to determine what resume possession, and the land is so used by evidence shall be received." By Peck, J.: "It the public without restriction, it may become a seems to me, that the partial payment should public square or highway by dedication, withhave been pleaded." Chamberlin v. Murphy, out deed or other act of the owner; and if so 41 Vt. 119, 120. 48 Vt. 155. suffered to continue, until individuals have be 54. Treble damages under statute. A come interested by purchases under the expeccount in trover cannot, under G. S. c. 33, s. 14, be joined to a count in trespass declaring upon a statute, and for treble damages, for the cut ting down of a tree, &e. Keyes v. Prescott, 32 Vt. 86. tation that it would not be reclaimed by the owner, the dedication becomes irrevocable, though it may not have existed fifteen years. State v. Catlin, 3 Vt. 530. 3. The declarations of the owner are admissible evidence to prove the dedication of lands to public use, particularly in connection 55. G. S. c. 113, s. 51, which gives treble damages in certain cases of trespass on land, does, not create the right of action, but only with his acts. Ib. gives cumulative damages for what was, and 4. Where the proprietors of a town passed still is actionable at common law. Montgomery a vote setting apart a piece of undivided land v. Edwards, 45 Vt. 75. as a public square, the vote, though irregular 56. The right to recover treble damages is and not originally binding, was held to have be"by action founded on this statute," and hence come so as a dedication, where the proprietors the declaration must count upon the statute. had derived a benefit from it, and had recogWhere the only reference to the statute was, in nized it by allotting their lands and village lots the conclusion," contrary to the form and as bordering upon the square, and individuals force of the statute in such case made and pro- had bought and built accordingly, without obvided;"-Held, that the declaration was insuffi-jection. Abbott v. Mills, 3 Vt. 521. cient for the recovery of any thing beyond 5. A right by dedication may be established single damages. Ib. by a possession by the public for less than fif 57. Stipulated damages. Where parties teen years, when accompanied by such acts and submitted to arbitration and agreed in the sub- circumstances as show an intent on the part of mission, each to perform the award or pay to a donor to make the dedication. Morse V. the other $500, and the award was to pay a less Ranno, 32 Vt. 600. Prouty v. Bell, 44 Vt. sum in money;-Held, that the $500 could not 73. be considered as stipulated damages, and that 6. A deed conveying lands to a town in fee the sum awarded was the measure of damages. Whitcomb v. Preston, 13 Vt. 53. will not be construed as a dedication of the land to public use, although expressed to be "for the use of the town as a meeting house For damages in particular actions and trans-green," "or common" ;-the words not amountactions, see AsSUMPSIT; COVENANT; TRESPASS, ing to a condition, or a limitation. State v. &c.;-CONTRACT; FRAUD; SALE, &C. Woodard, 23 Vt. 92. 15. Beach v. Haynes, 12 Vt. 7. But where the town, in such case, after 66 purchasing and taking a title in fee to the land, from a highway. Public squares, or comsuffered the public to use it as a public com- mons, are not strictly highways. They are. mon, and afterwards made a survey of the land, public dedications for ornament and for use, and placed it upon record, describing the land and not for traveling with horses or teams. as the town common," and thereafter, for They are like highways in some particulars, more than 15 years, it was used by the public but it by no means follows that they may not as a public common ;-Held, that the land had be inclosed with a fence, or that trees may not thereby become irrevocably dedicated to the be set out thereon. They frequently require to use of the public, so that a party to whom the be so enclosed for the convenience of people town sold and conveyed a part of the land was on foot, and to exclude horses, carriages and indictable for a nuisance by inclosing it. State teams. Hutchinson v. Pratt, 11 Vt. 402. v. Woodard. 8. Extent of use. Where the public rely upon usage as evidence of their right, the right cannot be more extensive than the usage; and evidence of private occupancy may qualify or disprove the usage claimed. State v. Trask, 6 355. 9. Acceptance. A dedication of land to public use, whether by deed or otherwise, requires, in order to be binding, an acceptance by the public, and this may be of the whole or of a part only; if appropriated by the public only in part, and the rest has for many years been occupied by the owner for private uses, this is evidence that the public claim has been waived or relinquished. Ib. 10. To render a dedication of land to public use binding, there must be not only some act of dedication on the part of the owner, but there must be something equivalent to an acceptance on the part of the public. Ib. Morse v. Ranno, 32 Vt. 600. Dodge v. Stacy, 39 Vt. 558. 11. Where land has been dedicated by the proprietor to public use-as for a common-and the dedication has been accepted-as by use for such purpose the public has acquired an easement therein, and the town, or its authorities, have no power to convey a right inconsistent therewith; as, a right to an exclusive occupation. Pomeroy v. Mills, 3 Vt. 279. S. C., 3 Vt. 410. HIGHWAYS, I., 1. DEED OF LANDS. I. THE INSTRUMENT AND ITS REQUISITES. 1. Consideration. 2. Statute system. 3. Signing. 6. Delivery and acceptance. 7. Acknowledgment and proof. 8. Recording and notice. II. WHAT PASSES. 1. Quit-claim deed. 2. Warranty deed. III. CONSTRUCTION. 1. Office of habendum. 2. Rules of interpretation. 3. Instances-as to description, boundaries, &c. I. THE INSTRUMENT AND ITS REQUISITES. 1. Consideration. 1. A consideration is necessary to sustain a 12. Indictment. Though the fee of land deed of bargain and sale, or other conveyance be vested in a town, or be private property, of land; but it is not essential that the consideven, yet if the use and occupancy be in the eration should be expressed in the deed. It public as a highway, public square or common, may be proved otherwise-as by parol, and --common to all the people for passing and re- from circumstances. Stevens v. Griffith, 3 Vt. passing, any obstruction thereof, or nuisance 448. Wood v. Beach, 7 Vt. 522. 19 Vt. erected thereon, may be prosecuted for by in- 216. dictment, and may be described in the indict- 2. The fact that the true consideration of a ment as a public highway. State v. Atkinson, deed is different from that expressed in it,-as 24 Vt. 448. State v. Wilkinson, 2 Vt. 480. State where it was for love and affection, but exv. Catlin, 3 Vt. 530. pressed to be for a money consideration,- does 13. Owner of the fee. The owner of the not avoid the deed, though it may be evidence fee of land, dedicated to the public as a com- of fraud as to third persons. Brackett v. Wait, mon or highway, may maintain trespass, or 6 Vt. 411. ejectment, for a private occupation thereof; 3. The purpose, as expressed in a conveybut he could hold only in a way consistent with ance of land to a town, of having a school house the rights of the public. Pomeroy v. Mills, 3 built thereon and a school taught for the beneVt. 410. fit of the youth of the town, imports a suffi 14. Public square, &c., as distinguished cient consideration to support the deed, although |