thority or in excess of his authority, binds him- dant, as such town agent, had no authority to self. Ib. Roberts v. Button, 14 Vt. 195. Clark bind the town by such promise. Clay v. v. Foster, 8 Vt. 98. Wright, 44 Vt. 538.

79. An agent, whose agency is not known by or disclosed to the party with whom he contracts, becomes personally bound. Baldwin v. Leonard, 39 Vt. 260.

84. Where a recovery and satisfaction had been had against a turnpike corporation for erecting a toll-house and gate on the plaintiff's land, which work had been done by the present 80. The defendant, an agent for a school defendants as servants and agents of the cordistrict, employed the plaintiff, an attorney, poration ;-Held, that the defendants were not upon the credit of the district, to defend a suit liable for a continuance of the nuisance,-that againt the defendant, upon the mutual mistake being regarded as the act of the principal, and that the district had authorized this and had they having done no act affirming the continua ssumed the defense. The defense was suc-ance. Lyman v. Dorr, 1 Aik. 217. cessful. The plaintiff had made his charges to 85. Though there be a right of recovering the district, and in a suit against the district to back money paid to an agent, yet if paid over recover therefor had failed, on the ground that to his principal before notice to retain it, or the defendant had no authority in fact to bind suit brought, he ceases to be liable. Gray v. the district. In an action of assumpsit to re- Otis, 11 Vt. 628.

IV. ACTS AND DECLARATIONS OF AGENT.

1. As binding his principal.

cover for the plaintiff's services and expenses 86. An agent who makes a promise, not in both suits;-Held, that the services in concealing his agency nor exceeding his authe first suit, having been rendered by thority, is not liable to an action thereon. Hall request of the defendant and for his v. Huntoon, 17 Vt. 244. benefit and under such mutual mistake, stood like money paid by mistake, and could be recovered for, although rendered upon the credit of the district, and although both parties had the same means of knowledge as to the extent of the defendant's authority, as agent; but that the plaintiff could not recover for his services a message to the plaintiff, a physician, to come and expenses in his suit against the district, since both parties had the same means of knowing the extent of the defendant's authority, and these were not for the defendant's benefit. Paddock v. Kittredge, 31 Vt. 378.

87.

The defendants sent their servant with

and see a boy who had got hurt in their employ, and they would pay him for that visit. The servant delivered the message in this formthat the defendants told him to tell the plaintiff to go and see the boy and attend upon him care81. Where a contract is made which, in some fully and see him through it, and they would sense, ultimately concerns others than the con-pay the bill. The plaintiff, upon the faith of tracting parties, whether the one contracting is this, and relying solely upon the credit of the personally bound by certain stipulations is defendants, attended upon the boy until his remainly a question of intention. In this case, held, that the defendant was personally bound. Hinsdale v. Partridge, 14 Vt. 547.

covery, the defendants knowing that the plaintiff was so attending from time to time. Upon report of these facts by an auditor, the county 82. Where one requests another to render court rendered judgment for the plaintiff for services for a third person, he is not necessarily his entire bill; and this judgment was affirmed liable for the services rendered, although such by the supreme court. Barber v. Britton, 26 third person is not thereby made liable. Stone Vt. 112. (Doubted in Pratt v. Page, 32 Vt. v. Huggins, 28 Vt. 617.

83.

19.)

The plaintiff had a suit pending against 88. The plaintiff, residing in Vermont, hava town of which the defendant was the (official) ing a note against the defendant residing in town agent, and, during negotiation with the California, left it with J, his brother in Calidefendant, had offered to take $60 in settle-fornia, for him to receive the payment of it. ment. The defendant afterwards wrote the The defendant afterwards forwarded to the plaintiff a letter, saying: "I have concluded I plaintiff a draft, as payment of the note, wherewould accept your offer and pay you the $60, upon J surrendered to him the note. The draft rather than have any more trouble in the mat- was protested for non-acceptance. In a subter; please withdraw the suit and let it sequent action upon the note, the question was go: I shall be at home Saturday and I whether the sending of the draft was a paywill see that you have the money. Of course ment of the note,-the plaintiff testifying that this pledge will be sufficient guarantee that I the note was agreed to be paid by sending will pay it, &c." In faith of this, the plaintiff money instead of a draft, and the defendant abandoned his suit. Held, that this was a per- testifying the contrary. It appearing that J, sonal undertaking of the defendant, and bound the plaintiff's agent to receive the payment, him as such-it being conceded that the defen- was cognizant of the agreement and of the

whole transaction;-Held, that the fact that [derwood v. Hart, 23 Vt. 120. Barnard v. he surrendered the note upon the forwarding Henry, 25 Vt. 289. Hayward Rubber Co. v. of the draft was itself evidence tending to show Duncklee, 30 Vt. 29. Austin v. Chittenden, 33 that this was according to the agreement as to Vt. 553. Upham v. Wheelock, 36 Vt. 27. Earle the mode of payment. Moore v. Quint, 44 Vt. v. Grout. 46 Vt. 113. 97.

95. A declaration by an agent of what he is 89. An agent to sell goods and take notes about to do, or has done, or a subsequent contherefor and transmit to his principal wrongfully cession of what he said or did in the performaltered such a note. In an action by the prin- ance of his agency, or any account given as of cipal declaring upon such note as altered, add-a past transaction, is not evidence against his ing the general counts,-Held, in the absence principal. Ib.

of evidence that the plaintiff knew or assented 96. On the trial of an audita querela to set to such alteration, that the alteration should be aside a justice judgment rendered by default, treated as the act of a stranger, he clearly not for the alleged reason that the justice was not being the plaintiff's agent to alter the note; that present within the statute two hours;-Held, the note was not thereby rendered inoperative, that the declarations of the attorney of the and a recovery could be had under the common counts. Bigelow v. Stephen, 35 Vt. 521.

plaintiff in that suit made at the time, and subsequently, that the justice was not present, that he had not seen him, etc., were not admissible to prove the fact of the justice's absence. Underwood v. Hart.

90. Where the defendants employed one to cut timber upon a certain lot, whom they trusted as knowing the lines, and he by mistake cut some trees beyond the line on the 97. Declarations of an agent, made after his plaintiff's land, which went to the defendants' agency has ceased, as to the terms of a contract use-Held, that the defendants were liable for made by him, are not evidence against other his trespass. Small v. Ball, 47 Vt. 486, and parties; and none the more so because he has see Hill v. Morey, 26 Vt. 178. since deceased. Stiles v. Danville, 42 Vt.

91. Demand by agent. Where a demand 282.

was made on the defendant by the agent in

fact of the plaintiff, and the defendant, express-2. As enuring to the benefit of his principal. ing no doubt as to the agent's authority, prom

ised to pay ;--Held, that he could not thereafter 98. The person for whom and with whose object to the sufficiency of the demand, upon the ground that he had no assurance of the agent's authority. Barron v. Pettes, 18 Vt. 385.

92. Notice to agent. Notice to an agent, in order to bind his principal, must be in the same transaction. Blumenthal v. Brainerd, 38 Vt. 402.

funds property is bought becomes at once the owner of it, although the purchase is made by an agent in his own name, and without disclosing his agency. Ridout v. Burton, 27 Vt. 383. Paris v. Vail, 18 Vt. 277. Hall v. Williams, 27 Vt. 405.

99, An agent, authorized to sell lands and receive payment therefor in his discretion, 93. Notice of a trust to an attorney, or upon sale of the lands took a note and mortagent, is in law notice to the client or principal, gage therefor in his own name, and received a although such knowledge comes to the attor- horse in part payment. Held, that the horse ney or agent while acting in another and dif- became the property of his principal, and was ferent transaction-Abell v. Howe, 43 Vt. 403-not subject to attachment for the agent's debts. and although such attorney or agent acquired Waldo v. Peck, 7 Vt. 434. such knowledge, before he became attorney or 100. The plaintiff's agent purchased a cow agent of the party to be affected by such notice. for him of the defendant, avowedly as agent. Hart v. Farm. & Mech. Bank, 33 Vt. 252. The defendant declined taking the plaintiff's 94. Declarations. Where the acts of the note therefor, but consented to the agent's takagent will bind the principal, there his repre-ing the cow and giving his own note therefor, sentations, declarations and admissions respect- which was done, and the note was afterwards ing the subject matter will also bind him, if paid with the plaintiff's money. Held, that the made at the same time and constituting part of contract was with the plaintiff, so as to entitle the res gesta; but the admission or declaration him to maintain an action upon a warranty in of the agent binds the principal only when it is the sale. White v. Owen, 12 Vt. 361. made during the continuance of the agency, in 101. Principal not disclosed. A receipt regard to a transaction then depending,-et was executed by a common carrier, acknowldum fervet opus; and it is because it is a ver- edging to have received of A and B certain bal act and part of the res gestæ, that it is ad- goods for transportation ;—Held, that there was missible at all. Kellogg, J., in Mason v. Gray, nothing in the terms of the receipt to preclude 36 Vt. 313. Curtis v. Ingham, 2 Vt. 287. 23 Vt. proof that the goods were owned jointly by A, 130. Tillotson v. McCrillis, 11 Vt. 477. Un- B and C; and that on such proof an action lay

in the names of A, B and C against the carrier faith will be protected, though the agent apfor a loss of the goods, although he had no propriate the avails to his own use without auknowledge that C had any interest in them. thority,-especially where the purchaser knows Day v. Ridley, 16 Vt. 48. nothing of the agency. Cross V. Haskins, 13 Vt. 536.

102. A father and son were both named D. F. The father purchased land, taking the deed 109. One who purchases goods of an agent to "D. F., Jr.," describing the grantee as of cannot, in an action by the principal for the the town where both resided, and executed price, set off a claim against the agent, though notes and a mortgage for part payment of the agreed to by the agent, if the purchaser had purchase money in the name of "D. F., Jr.," knowledge of the agency, or there were circumsaying nothing of his acting as agent for his stances sufficient to excite suspicion, or to put son, and the grantor supposed the father to be him upon inquiry as to the right of the agent in fact the purchaser, that his name was D. F., to deal with the goods as his own. Squires v. Jr., and that he (the grantor) was deeding the Barber, 37 Vt. 558. land to the father. In an action of ejectment, 110. And Held, in this case, that there were the plaintiff claimed title to the lands by a levy such circumstances of suspicion, viz., that the and set-off on execution against the father, and agent was insolvent and owed the defendant the defendant by deed from the son. There $20, and agreed to pay this debt out of the being some evidence that the son had author- price of the goods in consideration that the deized the father to buy the land for him and fur- fendant would assist him in compromising his nished the money to pay for the place, and that other debts, and then told the defendant that the father was in fact agent for the son in the he did not carry on business in his own name; transaction;-Held, that it was properly left to the character of the goods sold, [a chest of tea the jury to decide which was the real principal; and a barrel of molasses] also implying the exthat this did not depend upon the intention of istence of a mercantile establishment for the the grantor; and that the title vested in the real sale of heavy groceries carried on, not in the principal. Prentiss v. Blake, 34 Vt. 460. name of the agent. Ib.

103. If an agent for the sale of goods sell them in his own name, without disclosing his principal, an action for the price may be maintained in the name of the principal. Lapham v. Green, 9 Vt. 407. Squires v. Barber, 37 Vt. 558.

ALIEN.

1. There is no provision in the constitution 104. Nor is the principal estopped in such or laws of this State for declaring the forfeiture, case by the fact that he made a bill of sale of or taking the escheat of lands in this State the property in the name of the agent, who owned by an alien, and no such attempt has was to have as a commission all above a certain ever been made. It would seem, that the right price.

Edwards v. Golding, 20 Vt. 30.

to interfere with aliens holding real estate in this country, strictly and appropriately, belongs to the national, and not to the State sovereignty. State v. Boston, &c. R. Co., 25 Vt. 433.

105. An officer sold property on execution, which was bid in by A, and the officer made return that he had sold it to A. A was in fact the agent of B in making the purchase, but did 2. It is not an essential qualification of a not disclose this fact to the officer. Held, that voter in a town or school district meeting, or of the officer could recover the price in an action an office-holder of a town or school district, that against B for goods sold. Carney v. Dennison, he should be a freeman; a person of foreign 15 Vt. 400. birth not naturalized may be such voter or office

106. Dictum.--In contracts made by an holder, if he have all other qualifications. agent without disclosing his principal, the suit Woodc ck v. Bolster, 35 Vt. 632 (1863). Changto enforce them may be in the name either of ed by Stat. 1869, No. 50. the principal or of the agent. But, in such case, if the suit be not brought in the name of the person ostensibly contracting, it is subject to every defense which would obtain if it had been so brought. Lapham v. Green, 9 Vt. 407.

ALTERATION OF INSTRUMENT.

107. One dealing by simple contract with 1. Material Alteration. A joint and sevan agent not disclosing his principal, may be eral bond of three was altered with consent of made liable in a suit in the name of the princi- two of them in the absence of the third, and pal, to the same extent as if the agent had been afterwards, without the consent of the two, the principal and the suit had been brought in his obligee removed the seal and erased the signaCulver v. Bigelow, 43 Vt. 249. ture of the third. Held (by a majority) that the bond was made void as to all. Dewey v. Bradbury, 1 Tyl. 186.

name.

108. Where property is intrusted to an agent for sale, any person buying and paying in good

2. That the bond sued upon was surrepti-[and other evidence in the case, is for the jury. tiously ante-dated, was allowed to be pleaded in The whole is matter of fact, and they must bar. Davis v. Cole, 1 Tyl. 262. determine it from all the testimony before them.

3. If a promissory note be altered in a Beaman v. Russell, 20 Vt. 205. Langdon v. material point by consent of one signer, and not Paul, 20 Vt. 217. Kimball v. Lamson, 2 Vt. of another, it is the note of the first, and not of 138.

the other. Broughton v. Fuller, 9 Vt. 373. 44 Vt. 415.

4. If a lessee fraudulently alter his lease in a material part, he destroys all his future rights under that lease, by destroying his evidence of title; and the lessor may re-enter. Bliss v. McIntyre, 18 Vt. 466.

AMENDMENT.

1. Power of Court to allow amendment. The county court has power to allow any 5. - by a stranger. If a written instrument amendment which does not change the parties, be altered in a material point by the owner or or the nature, or cause of action, unless it be holder of it, without the knowledge or consent of of some statute requisite in relation to the prothe signer, the instrument is avoided, and, sem-cess itself. Bowman v. Stowell, 21 Vt. 314. ble, such alteration works a forfeiture of the Stevens v. Hewitt, 30 Vt. 265.

debt represented by it. But if the alteration 2. of return of process. On motion to be made by a stranger without authority, the dismiss a suit for defective service of the writ, instrument is not thereby avoided; and, the court decided that the suit be dismissed. held, that an unauthorized alteration of a note, After the decision, the plaintiff moved that the made by the owner's agent to take the note, officer be permitted to amend his return accordshould be treated as the act of a stranger. Bige-ing to the fact. The court, as matter of law low v. Stilphen, 35 Vt. 521. 41 Vt. 602. and not of discretion, denied the motion. Held 6. Immaterial alteration. The plaintiff erroneous, and that it was within the discreoffered in evidence a sealed instrument in which tion of the court to allow the amendment. the defendant acknowledged that he had "sign-Bent v. Bent, 43 Vt. 42.

ed" certain promissory notes. The words "and 3. An officer after return of process may, executed," appeared interlined, following the on application to the court, but not otherwise, word "signed" The paper was admitted be permitted to amend his return, provided the against objection, and without explanation of the interlineation. Held correct; and that the words interlined were altogether immaterial, not altering the legal effect. Langdon v. Paul, 20 Vt. 217.

rights of third persons will not be affected by it, and there is something on the record by which the amendment or correction can be made. The court will allow the amendment, or not; and if allowed, it will be on such terms

7. Wherever, by the alteration of a promissory as the court think proper to impose. An amendnote, neither the rights nor interests, duties nor ment so made without leave of court was held obligations of either of the parties are in any of no validity. Barnard v. Stevens, 2 Aik. manner changed, the alteration is immaterial, 429. though made by the payee. Derby v. Thrall, 44 Vt. 413.

4. In trespass tried on appeal in the county court the defendant justified by process, but 8. The defendant as surety for W signed a the return was imperfect. The county court note to the plaintiff, erroneously naming him refused to allow the officer to amend his return. Franklin Derby. Upon W's delivering the note Held correct; but, semble, such amendment the plaintiff, by his consent, changed the might have been permitted by the justice, if it name "Franklin" to the true name, Francis E. would not affect the interests of third persons Held, that the alteration did not vitiate the and would not be false. Brainard v. Burton, note. Ib. 5 Vt. 97.

9. Presumption-Evidence. The altera- 5. The court properly refused to permit an tion of a written instrument, if nothing appear officer to amend his return after the return day, to the contrary, should be presumed to have to affect proceedings in another suit. Fletcher been made at the time of its execution. On the v. Pratt, 4 Vt. 182. Orvis v. Isle La Mott, usual proof of execution, the instrument should, 12 Vt. 195.

without reference to the character of any altera- 6. — of writ and declaration. A writ and tion upon it, be admitted in evidence, leaving declaration wanting in nothing but an ad damall testimony in relation to such alteration to num is amendable in that particular. Lambe given to the jury; and, generally, the whole phere v. Cowen, 42 Vt. 175. inquiry whether there has been an alteration, 7. In a case appealed from a justice the and, if so, whether in fraud of the defending plaintiff, by leave of the county court, raised party, or otherwise, to be determined by the ap- his ad damnum from $100 to $1,000. At a pearance of the instrument itself, or from that subsequent term the defendant moved to dis

miss the suit for want of jurisdiction, when auditor, the name of one of the defendants was the plaintiff, by leave of court, and before trial, allowed, on plaintiff's motion, to be stricken reduced the ad damnum to the original sum. out, such person not being in life when the Held, that the writ was not "amended out of cause of action accrued. Winn v. Averill, 24 court," but the jurisdiction remained. Whit- Vt. 283.

ney v. Stars, 16 Vt. 587.

16. So, a declaration upon a promissory note

8. The clerk of the county court by mistake may be amended by adding a count upon a signed a writ as "Dep. Clerk." After plea in count stated. Stephens v. Thompson, 28 Vt. abatement that he was not deputy clerk, the 77.

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court allowed him to amend by annexing to his 17. So, in an action of ejectment-by adding signature the word “Clerk.” Held correct;- to the statute form an allegation of special damfor that such amendment was merely a correc-age done to the premises. Lippett v. Kelley, tion of the misdescription of the capacity in 46 Vt. 516.

40.

which he exercised the powers of clerk, with- 18. A declaration containing only the genout supplying any authority not already appar-eral counts in assumpsit may be amended by ent upon the writ. Johnson v. Nash, 20 Vt. adding a count upon a parol submission and award. Trescott v. Baker, 29 Vt. 459. 9. The defendant was sued by the name of 19. Where the declaration in an action "The Haverhill Bridge Company." Its true upon a judgment misdescribed it in some parcorporate name was "The Proprietors of Haver- ticulars, but not so as to wholly destroy its hill Bridge." The county court allowed the identity,-Held, that the misdescription could plaintiff to amend his writ and declaration by be corrected by an amendment. Stevens v. changing the designation to the true name. Hewitt, 30 Vt. 262. Held, that the court had power so to do. Stanton v. Proprietors of Haverhill Bridge, 47 Vt. 172.

20. In assumpsit against husband and wife to recover for the indebtedness of the wife accrued before marriage, the declaration may be

10. A writ and declaration against the de-amended so as to aver that the debt accrued befendant corporation sued as the "New York fore coverture. Montgomery v. Maynard, 33 Central Railroad Company," were allowed to Vt. 450.

be amended by changing this to the present 21. New counts may be added to a declaratrue corporate name, viz: The New York tion by amendment, which allege an enlargeCentral and Hudson River Railroad Company. ment of the time of performance of a contract. Held proper. Hosford. N. Y. Central, etc., Hill v. Smith, 34 Vt. 535.

R. Co., 47 Vt. 533.

22. And in trover, a new count may be added for additional property taken at the same time with the other. Haskins v. Ferris, 23 Vt.

11. General rule. The rule established by the court in repeated cases, as to the power of the court to allow amendments, only limits it 673. to the same cause of action, and form of action, 23. So, a declaration in covenant, counting and the same parties to the suit; defects of any other character, to any extent, may be cured by amendment. Poland, J., in Waterman v Conn. & Pass. R. R. Co., 30 Vt. 614.

for a breach of the covenant that the premises were free of incumbrance, whereas they were at the date of the deed subject to a certain mortgage, after demurrer sustained on the ground 12. An amendment to a declaration may be that the covenant did not pass to the plaintiff made which does not change the form or nature as a subsequent grantee, was allowed to be of the action, or introduce a new subject mat- amended by a new count declaring upon a ter; and it is no objection to an amendment covenant in the same deed to warrant and that it may enable the plaintiff to recover, defend the premises against all lawful claims where he otherwise could not. Every neces- and demands, and setting up the establishment sary amendment does this. Skinner v. Grant, by decree of court of the same mortgage as a 12 Vt. 456. (Boyd v. Bartlett, 36 Vt. 14. Dana paramount title; and this, although the rule of v. McClure, 39 Vt. 197.) damages in the two cases was different. v. Bartlett, 36 Vt. 9.

13. Instances. In an action of slander an amendment was allowed, by adding an averment that the words were spoken of the plaintiff as a preacher and minister of the gospel. Ib.

Boyd

24. It is no objection to an amendment, that it sets up the cause of action in such manner as to take the case out of a statute of limitations applicable to the original declaration. 14. So, in an action brought by B on a prom-As where the declaration was the common issory note payable to A, or bearer, an amend-counts in assumpsit only, and a specification of ment was allowed averring that the plaintiff the claim described a promissory note, to which was the bearer. Bowman v. Stowell, 21 Vt. the defendant pleaded the statute of limitations 309. of six years, the plaintiff was allowed to aban15. So, on the coming in of the report of an don his original declaration, and to file a new