Caldwell v. Renfrew. Caldwell v. so invest the money that, if she should need any the donor may be such trustee. part of it in her life time, she could collect it, Renfrew. Blanchard v. Sheldon. but, if she died without collecting it, the money 14. And semble, he might be a donee causa and interest should go to said D B, Sheldon mortis. proposed to take the money and furnish security 15. A gift of real estate cannot be sustained that her desire should be carried out. The tes- as a donatio causa mortis, for that extends tatrix thereupon deliverd Sheldon the money only to personalty. Meach v. Meach, 24 Vt. 591. and took his note, with surety, promising to 16. M being desperately sick, in prospect of pay her "$300 with annual interest on demand, certain and speedy death, executed to his wife if she called for it before she deceased, if not, to a deed in common form of all his real estate, be paid to Daniel Blanchard by her order." valued at $10,000, and at the same time executShe never called for the money, but retained the ed to her a deed of all his personal estate, connote, and it was found with her other papers sisting of stock on his farm and choses in action, after her decease. Held, that the delivery of and all of which he should be possessed at his the $300 to Sheldon was for D B and vested decease. Both deeds were duly recorded. M the property in him, subject to be defeated continued hopelessly sick for nearly a month, only by the testatrix calling for it, and that when he died. Upon a bill by the widow Sheldon continued to hold the money for D B so against the administrator;-Held, (1), That the long as the testatrix refrained from calling for it, and that this was good as a gift inter vivos; and in an action of trover by D B for the note, -held, that he was entitled to it as against the executor. Blanchard v. Sheldon, 43 Vt. 512. 8. Causa mortis. A donatio causa mortis is properly a gift of personal property by a party who is in peril of death, upon condition that it shall presently belong to the donee in case the donor dies, but not otherwise. There can be no such valid donation-1st, unless the gift be with a view to the donor's death; 2d, unless it be conditioned to take effect only on the donor's death by his existing disorder, or in his existing illness; and 3d, unless there be an actual delivery of the subject of the donation. deed of the real estate could not be upheld as a post-nuptial settlement; nor as a donatio causa mortis; nor as a testamentary disposition of the estate; (2), That the deed of the personal property was valid as a donatio causa mortis. Ib. GOVERNOR-See FUGITIVE. GOVERNOR AND COUNCIL-See STATUTE, I. GOVERNOR'S RIGHT. 1. The Governor's right in the New HampSmith v. Kittridge, 21 Vt. 238. French shire charters is located in severalty by the charv. Raymond, 39 Vt. 623. Blanchard v. Sheldon. ters. Wentworth v Strong, 1 Tyl. 191. Holley v. Adams, 16 Vt. 206. 2. The "Governor's Right," as commonly 9. The donor's own promissory note is indicated in the town charters, is a grant in rather a promise to give than a gift, and is not severalty. If title to it fail in part, as by reathe subject of a gift causa mortis. Smith v. Kit- son of a previous grant, there is no right to tridge. compensation to be taken out of the other lands 10. But a note against a third person may granted. Strong v. Paine, 1 D. Chip. 201. be. Ib. Caldwell v. Renfrew, 33 Vt. 213. 3. A township was granted in sixty-nine McConnell v. McConnell, 11 Vt. 290. equal shares to persons named, among whom 11. A gift made by a person in ordinary was named "His Excellency Benning Wenthealth cannot be sustained as a donatio causa worth, Esq., a tract as marked in the plan B mortis. Smith v. Kittridge, 21 Vt. 238. Blanch-W, to contain 500 acres, which is to be accountard v. Sheldon, 43 Vt. 512. ed two of the within shares." These shares 12. S had sent money at different times, to were not designated on the plan by the letters the amount of $100, to her uncle to be put into B W. Held, that although these shares could the savings bank for her, which he had done, not vest in severalty, yet the grant was not void, himself taking and always keeping the bank but conveyed two shares undivided in the whole book. In her last sickness at his house, she town, and not a located tract of 500 acres. said she gave her money to him—that it was all Sumner v. Conant, 10 Vt. 9. his. Nothing was delivered, and it did not appear that she knew there was any bank book. Held, that for want of a delivery, the gift could not take effect causa mortis. French v. Raymond, 39 Vt. 623. GRANTS. 13. The delivery in a gift causa mortis, as in 1. New Hampshire grants. The Govergifts inter vivos, may be to a third person in nor of New Hampshire, while this territory was trust to hold for the donee, and the husband of under that jurisdiction, and after the transfer to New York, the Governor of that province, statute only to lease them reserving an annual had a power to grant such lands as were then rent, is void. Bush v. Whitney, 1 D. Chip. 369. in the right of the King. These grants were Lampson v. New Haven, 2 Vt. 14. Williams not made in the personal or even jurisdictional v. Goddard, 8 Vt. 500. White v. Fuller, 38 right of the Governors, but by royal authority Vt. 205. given for that purpose, and they are to be con 9. Before division of a town by draft, the sidered as royal grants. The King was, in view proprietors may, by the statute, vote to a pubof the law, the ultimate owner of all the lands lic right the lot on which a settler is placed within his dominion, and had the reversion in under that right. Evarts v. Dunton, Brayt. 70. himself. An estate in fee was said to be derived 10. The same rule of acquiescence applies out of the King's right, and to be subordinate to to the location of the public lands, as to the that right. Agreeably to this doctrine, a sur-lands of individuals. Boothe v. Coventry, 4 Vt. render to the King might be made of a former 295. grant. On a surrender, the King was in of his 11. Grammar school lands. Where the former right and might grant again, as he charter of a town was granted by the State to pleased. Paine v. Smead. N. Chip. 99. S. C., 64 proprietors, each to take one-seventieth part, D. Chip. 56. 3 Vt. 560. and six-seventieths were reserved for the use 2. The surrender of a New Hampshire of county grammar schools, &c.;-Held, that charter to the Royal Governor of the Province such six-seventieths never vested in the propriof New York, after this territory was transferred etors, to hold in trust or otherwise, but reto New York, enabled him to re-grant the same mained in the State, and were at its entire dislands, and his grant in confirmation of the posal for the uses named. Grammar School v. rights under the New Hampshire charter was Burt, 11 Vt. 632. valid. Ib. 3. Grants by legislature. A grant by the legislature, either to individuals or to a foreign corporation, gives them a capacity to take the thing granted. Lord v. Bigelow, 8 Vt. 445. 12. The legislature has absolute and entire control and disposal over the grammar school lands reserved in the town charters, for the uses and purposes for which they were reserved. Orange Co. Grammar School v. Dodge, Brayt. 223. Caledonia Co. Grammar School v. Burt. 4. A legislative grant to a corporation Orleans Co. Grammar School v. Parker, 25 Vt. aggregate vests an absolute title without words 696. White v. Fuller, 38 Vt. 193. the uses in the towns, and does not affect the legal estate. Rood v. Willard, Brayt. 66. 14. The selectmen of a town cannot maintain ejectment to recover lands granted to the 'Propagation Society." Colchester v. Hill, Brayt. 65. of perpetuity. Such grant cannot be after- 13. Propagation society. The statute wards controlled by the legislature, any more granting to towns the “ society lots," only vests than an absolute grant to individuals. Caledonia Co. Grammar School v. Burt, 11 Vt. 632. 5. The legislature are perpetually bound by the conditions of all grants made by them, the same as individuals; but, after a grant is once made, no legislature can annex new terms or conditions to the tenure or title of the thing 15. First settled minister. The right granted, even of exemption or privilege to the granted or reserved in a town charter to the grantee, which a subsequent legislature may not first settled minister, does not vest until a minrepeal. Herrick v. Randolph, 13 Vt. 525. See CONSTITUTIONAL LAW, I. 6. Public rights in general. The legal title to the rights of land in a township, which, by the charter, are reserved for public uses, and are placed "under the charge, direction and disposal of the inhabitants of such township forever," vests in the municipal corporation, but as a trustee in the strictest sense, for the uses named. Montpelier v. East Montpelier, 27 Vt. 704. S. C., 29 Vt. 12. White v. Fuller, 38 Vt. 193. (Pawlet v. Clark, 9 Cranch, 292.) 7. The legislature has no power to change the grant of the public rights as made in the town charter, or the appropriation of the proceeds thereof, without consent of the town interested; but may, with such consent, as in this case. Poultney v. Wells, 1 Aik. 180. 8. A conveyance in fee by selectmen of the public lands, where they are empowered by the ister is settled, but remains under the temporary control of the legislature, who may, until such settlement, appropriate the use and avails, -as for the benefit of the town. Poultney v. Wells, 1 Aik. 180. 16. The right of land, variously expressed in the several town charters as reserved for the first settled minister of the gospel, becomes vested in the first minister duly settled, and when once vested his title does not become divested by any after separation or the dissolving of his connection with the inhabitants, as minister. Dow v. Hinesburgh, 2 Aik. 18. Williams v. North Hero, 46 Vt. 301. 17. A town charter reserved "lands to the amount of one right to be and remain for the purpose of settlement of a minister and ministers of the gospel in said town forever, "-and declared that this right, as likewise the right for common schools, and for the social worship of God, together with their improvements, | 23. A grant of land, although carrying rights, rents, profits, dues and interests, shall everything belonging to the land as an incident remain unalienably appropriated to the uses or appurtenant to it, passes only such appurand purposes for which they are respectively tenances as existed at the time of the grant; it assigned, and be under the charge, direction does not create a new one. Swasey v. Brooks, and disposal of the inhabitants of said town 30 Vt. 691. ship forever." Held, that the reservation 24. Reservation. A reservation is someintended a succession of settled ministers, and thing taken from the whole thing covered by that the right did not vest absolutely in the the general terms of the grant, and cuts down minister first settled, and that he could not and lessens the grant from what it would be convey a fee therein. Williams v. Goddard, 8 except for the reservation. Miller v. Lapham, Vt. 492. 39 Vt. 495. 46 Vt. 318. 44 Vt. 416. 18. To constitute a first settled minister, so as to entitle a person to the right by that name usually reserved by the Vermont and New Hampshire charters, there must be a permanent settlement and engagement of him as minister, according to then existing laws, to continue, as for life. Sheldon v. Goodsell, 1 Aik. 225. II. Dow v. Hinesburgh, 2 Aik. 18. Charleston v. III. Allen, 6 Vt. 633. 46 Vt. 320. IV. 66 I. 1. GUARANTY. CONSTRUCTION AND EFFECT. CONDITIONS OF GUARANTOR'S LIABILITY. ACTION. I. CONSTRUCTION AND EFFECT. 19. The charter of the town of "Two Heros," embracing South Island and North Island, reserved to public uses six rights or shares, among which was one right for the Rule of construction. In the construcfirst settled minister of the gospel," * * "to tion of a guaranty, technical rules are not to be be under the charge, direction and disposal of resorted to where the meaning of the parties is the inhabitants of said island forever." Held, plain and obvious. Noyes v. Nichols, 28 Vt. 159. (1), that the participation of the inhabitants in 2. Absolute undertaking. One who stipsuch disposal was to be such as should be pro- ulates for a thing to be done by himself or anvided by the laws in existence at the time when other, is bound to see it done. Where the such settlement of a minister should at any terms of a guaranty are that the principal shall time be made; (2), that in order to the valid pay, or that payment shall be made, this is an settlement of a minister, so as to vest in him the absolute undertaking, and no demand of paytitle to such right, it was not necessary that the ment of the principal, or notice of his default, inhabitants should participate in their corporate is necessary to charge the guarantor. Smith v. or municipal capacity, but only in their individ- Ide, 3 Vt. 290. Knapp v. Parker, 6 Vt. 642. ual or social capacity; and that such settlement Train v. Jones, 11 Vt. 444. Peck v. Barney, might be made by a few of them, acting accord-13 Vt. 93. 18 Vt. 35. Noyes v. Nichols, 28 ing to the recognized forms and modes adopted Vt. 159. in such cases. Williams v. North Hero, 46 Vt. 301. Mitchell v. Clark, 35 Vt. 104. 3. The debtor and another agreed to execute their note to the creditor for the amount 20. Case illustrating the valid settlement of of his debt, at the expiration of a certain time, a minister of the gospel, with reference to the in consideration that the creditor would fortitle to the right reserved in the town charter bear to sue the debtor for that period. Held, for the first settled minister ;--also, one attempt- that this was not a guaranty requiring any proed by fraud, the claimant having before sur-ceedings to collect of the debtor, but a direct rendered his credentials as a minister, and undertaking to satisfy the debt by the new note; ceased to be a member of any church. Ib. and, for a breach, the creditor was entitled to 21. Grants by private persons. Lands recover the value of the note promised to be conveyed to Middlebury College for the use of given, which, prima facie, was the amount of the college, although not by charter, were held the debt and interest. Ferris v. Barlow, 2 "sequestered to public use." Middlebury Col- Aik. 106. lege v. Cheney, 1 Vt. 336. 4. A and B gave the plaintiff a writing, in 22. Where an acre of land was conveyed to which they jointly and severally promised to a town for the purpose of building a school pay him any sum of money that A should be house thereon and maintaining a school;-Held, owing him up to a specified future day, that the town, having built the school house not to exceed $500 at any one time, and interand a school being maintained therein, did not est. The plaintiff advanced property to A forfeit the land, or any part of it, by other uses upon the strength of this writing to the amount of the land not inconsistent with the object of the named. In an action thereon against A and B, conveyance. Castleton v. Langdon, 19 Vt. 210. B made defense that he was only a surety and guarantor, and that he had received no notice|lection and payment of the said note, and agree of the acceptance of the guaranty and that the to pay the same on condition that said R does plaintiff had acted upon it. Held, that this not call on me for payment till the 1st of May, was a joint undertaking for the same thing 1831." Held, not an absolute promise to pay, upon the same consideration, and that B was but only a promise to pay in case the note equally liable with A, without other notice of could not be collected of the maker. Russell v. acceptance than A received by passing off the Buck, 11 Vt. 166. Bennett, J., dissenting. paper for the property advanced. Maynard 11. The guaranty of a promissory note as v. Morse, 36 Vt. 617. “good until January 1, 1850," or "good and 5. Whether indorser, or guarantor-collectible for two years from date," is a condistinction. A verbal agreement between the tract that the parties to it, for the time limited, indorser and indorsee of a promissory note, shall be and remain in such a condition that made at the time of the indorsement, that the payment can be enforced by the due use of maker should not be called upon for payment legal process. Hammond v. Chamberlin, 26 until a certain time, was held to take the case Vt. 406. Bull v. Bliss, 30 Vt. 127, limiting out of the law merchant as to demand and no- Wheeler v. Lewis, 11 Vt. 265. tice; and, upon the understanding of the par 12. The guaranty of a promissory note was ties that, unless paid by the time named, the in this form: "I hereby guarantee this note indorsee should sue the maker, the indorser good until January 1, 1850." Held, that a rewas held liable as guarantor, where such suit covery could not be had therefor under a proved fruitless. Marsh v. Babcock, 2 D. Chip. declaration counting against the defendant as 124. indorser, nor under a count upon it as a guar 6. The general rules of law governing notes anty "that the note should be paid by January and bills, as applicable to charging an indorser, 1, 1850"; and that the guaranty was satisfied do not apply to a note assigned with a warranty by the fact, that the note could have been that it is "due and collectable"; but the as- secured and collected of the maker by legal signor is liable only according to the terms of process, at all times during the continuance of the warranty; that is, that the note is due, the guaranty. Hammond v. Chamberlin. and that it can be collected by suit. Foster v. Barney, 3 Vt. 60. 13. The guaranty of a note as "collectible" is not satisfied by the fact that the maker had 7. A guaranty of a note in the following real estate which might have been attached, or form: "I guarantee the said note is good and taken in execution. Foster v. Barney, 3 Vt. 60. payment of the same"-is an absolute under- 14. "Credit.” A sale of goods upon taking of payment, and, in order to hold the time of payment given, the title of the goods guarantor, it is not necessary to present the to remain in the vendor until payment of the note for payment, give notice of non-payment, price ;-Held to be a conditional sale on credit, or bring suit against the maker. Woodstock and to be within the terms of a guaranty of Bank v. Downer, 27 Vt. 539. payment for goods sold "upon a credit." Noyes 8. May be both. The defendant, the v. Nichols, 28 Vt. 159. payee of a negotiable promissory note, indorsed 15. "All drafts, &c." Where a letter of and signed the following words upon it: "I credit was drawn at Burlington, Vt., by the deguarantee the payment of the within note"- fendant resident there, and directed to a bank and put in circulation. Held, that to a remote in Michigan, agreeing to accept and pay all holder he was liable upon it, as indorser, upon drafts drawn on him by A B ;-Held, that this proof of demand and notice. Held, also, that did not bind him to accept and pay drafts he was liable as an absolute guarantor, without drawn upon him by A B made payable in New proof of demand and notice--and (by Davis, J.,) York. Michigan State Bank v. Leavenworth, such guaranty is negotiable. Partridge v. Davis, 28 Vt. 209. See Same v. Pecks, 28 Vt. 200. 20 Vt. 499. 31 Vt. 428. But on this last point, .16. "Claim and demand." Where one contra. Redfield, J., in Sandford v. Norton, transferred certain notes, railroad bonds, mort14 Vt. 233, and Sylvester v. Downer, 20 Vt. 361. gages, stocks and other securities specified in a 9. If one indorse a note and at the same schedule, and gave a guaranty that "each time guaranty that it is good and collectible, claim and demand is absolutely good and colthe holder may elect to treat him as either in- lectible and bind myself to make up any loss in dorser, or guarantor; and to an action on the the collection," &c;-Held, that the guaranty guaranty it is no defense, that the holder failed did not embrace the railroad preferred stock to charge him as indorser. Dana v. Conant, named in the schedule, and the payment of. 30 Vt. 246. the dividends thereon. Dana v. Conant, 30 10. Conditional undertaking-Particu- Vt. 246. lar terms. One of the indorsers of a promis- 17. Circulating guaranty. D, a country sory note gave to the holder a writing, as fol- merchant, who was about going to New York to lows: "I hereby guaranty to said R the col- purchase his usual fall supply of goods for the business of a country store, where goods of be accepted by either of them; (2), that this every variety and description are usually kept was not a single guaranty for $25,000 and then for sale, received from the defendant, his to end, but was a continuing or standing guarformer partner in the same business, a written anty to that amount; (3), that they were, under guaranty, agreeing to be responsible for what the circumstances, bound by the acceptance by goods D might purchase in New York more than C of bills drawn payable elsewhere than where he paid for himself. The guaranty was direct- the drawees resided. Michigan State Bank v. ed to no person in particular. With it, D pur-Pecks, 28 Vt. 200. chased his supplies of different parties, on the 20. The defendants gave the plaintiffs a customary credit, and of the plaintiff after he guaranty, as follows: "Mr. Lyman Wilson had made purchases of other parties. In an wishes to buy stock for his shop and pay in six action upon the guaranty;-Held, that the in- months or before. We will be surety for him tent of the guaranty was to give D the credit for a sum not to exceed one hundred dollars." necessary to enable him to purchase of as many Held, that the guaranty was not exhausted by different dealers as might be necessary to make the first delivery of stock amounting to $50.03, up his country store assortment; and that its but covered the whole amount of $100, deliverpurpose was not complete and executed by a ed from time to time within a reasonable time, sale by one person on the faith of it, but was and all within two months from the date of the the same in legal effect and extent as if it had guaranty, as called for by Wilson. Keith v. been a separate letter to each dealer. Lowry v. Dwinnell, 38 Vt. 286. Adams, 22 Vt. 160. 21. Other instances. Where one guaran to the primary party, and where the other party had gone beyond his legal duty under the contract. Corlies v. Estes, 31 Vt. 653. 18. Continuing. A requests B to indorse tied the performance of the contract of ana note for him to the bank of T, for $2000, other ;-Held, that he was not bound to make and, in order to secure B, procures C to sign a indemnity for acts of voluntary grace extended note with him for the same sum payable to B, and delivers it to B, who indorses the note to the bank. Afterwards, at A's request, B indorses for him a like note to the bank, and 22. Where a guaranty was given to the with it the first is taken up, and A pledges the plaintiff, a lawyer, to pay him for services for same note as security for such second indorse- a third person in a pending lawsuit ;-Held, in ment. On C's being inquired of by B, whether an action upon the guaranty, that it was no obA had a right to pledge the note for the second jection to a recovery for the whole services, accommodation, he replied that he was liable that the plaintiff had afterwards formed a law on the note to B, and that A might thus pledge co-partnership, by the terms of which his partit. Afterwards, A procured B to indorse for ner was entitled to share in the pay for the serhim a blank note which A filled up to F bank vices thereafter rendered, and that the charges for $2000, and got it discounted at the bank of therefor were made against the defendant upon T, and so took up the second note,-the note the partnership books,—the entire services havsigned by A and C still remaining in B's hands. ing been performed personally by the plaintiff. The last note payable to F bank B was com- Roberts v. Griswold, 35 Vt. 496. pelled to pay. Held, that the note signed by A The plaintiff had been retained by D, and C was a continued guaranty to that amount counsel in a lawsuit, and had rendered and remained as security to B generally for any services which he had charged to D. In reply sums A might procure of B, or by means of B's to letters from the plaintiff claiming that the name as surety, to the amount of the note, un- defendant ought to pay him, the defendant less C had expressed his dissent thereto. Adams wrote; "I can assure you that he (D) is perv. Clark, Brayt. 196. fectly good, and will hold myself accountable 23. as his 19. The defendants and C signed the fol- that he shall pay you for all the services you lowing writing: "C. C. Trowbridge, Esq., have or may render him in the suit." The President, Detroit, Michigan;-R H & Co. are plaintiff relied upon this engagement and conauthorized to value upon us, or either of us, to tinued to render services in the suit to its close, the amount of $25,000 in such amounts and on in faith of the engagement, and according to such times as they may require, which will be the expectation and understanding of the deduly honored, and we hereby jointly and sev- fendant. In an action upon the guaranty ;erally hold ourselves accountable for the ac- Held, that there was a sufficient and apparent ceptance and payment of such drafts," and de- consideration for the guaranty; that notice of livered it to R H & Co., who passed it to the its acceptance appeared; and that the plaintiff bank of which Trowbridge was president, and was entitled to recover for both the past and on credit of it got bills discounted. Held, as future services, and for disbursements for court interpreted by the course of dealing of the and clerk's fees. Ib. See Bagley v. Moulton, parties, (1), that the writing bound all the 42 Vt. 184. signers to the payment of such drafts as might 24. A guaranty of payment for all clothes |