other defendants did anything except under authority from Mattison, and that it was all one transaction. No general verdict was taken, but the court submitted several propositions for special findings. It appears from the charge, which is made a part of the exceptions, that there was really no controversy but that Mattison and Hastings alone, without the participation of the other defendants, put the plaintiff out of the house, nor but that all the defendants participated in carrying out the goods; and so the first proposition submitted for the jury to consider was that on the day alleged the defendant Mattison, in serving said writ as such sheriff, and the defendant Hastings, acting under and by his command, forcibly removed the plaintiff from the premises described in the writ; and the second proposition submitted was that all the defendants, acting in like capacity, and by like authority, removed from the premises the household goods and the children of the plaintiff, against her will; and the jury found accordingly. The court submitted separate propositions on the question of damages, namely, one for a finding of damages for the expulsion of the plaintiff by Mattison and Hastings, and one for the damages for removing the goods and the children. In submitting the first proposition as to damages, the court told the jury that those damages related to Mattison and Hastings only, as the other defendants took no part in the removal of the plaintiff herself, and that the proposition was so drawn. The jury found that, if the removal of the plaintiff by Mattison and Hastings was wrongful, she suffered thereby $200 damages; and that, if the removal of her goods and children by all the defendants

was wrongful, she suffered thereby $50 damages; and that $13 of that sum were for damages unreasonably and unnecessarily done to the goods in such removal. The court rendered judgment for the plaintiff against all the defendants jointly for the full amount of the damages found and costs, to which the defendants excepted.

If, as the plaintiff argues, all the defendants went to the house for the common purpose of cleaning it of whomever and whatever was in it, they are all equally and jointly liable, although all did not actually assist in putting the plaintiff out; for in that case the plaintiff had a right to treat the act of any of them as the act of all, and to sue all. But such was not the case, neither in the pleadings nor the proof. Mattison and Hastings gave notice of justification of the assault on the plaintiff; but the other defendants gave no such notice, but only notice of a justification of taking and carrying away the goods, and stood upon the general issue as to the assault upon the plaintiff; and the proof was, as the court told the jury, that they took no part in that assault, and the findings are equivalent to a finding that they were not guilty thereof. This is unquestionably the way in which the exceptions present the case.

It was, therefore, error to render judgment against all for the full amount, for thereby some of the defendants were made liable for damages not imputable to them.

If this was the only error in the case, it would be necessary to consider against whom and for what amount the plaintiff can have judgment; but, as there is other error that vitiates the entire findings, it is unnecessary to consider that question. The principal question in the case was whether the plaintiff or her husband was the tenant of the house at the time in question, and, as bearing on this question, whether she or her husband hired it of Hall. She claimed that she hired it herself, in her own name and right, before she moved in, and afterwards made a further contract with Hall for it. To show that she hired it before she moved in, she relied upon certain letters that she wrote and procured to be written and sent to Hall and his housekeeper, respectively, and upon certain replies thereto from the housekeeper, written by Hall's authority, the contents of all which she offered to show by parol, without showing notice to Hall to produce those from her, or the loss of those from the housekeeper, which she was allowed to do. This was error. As to the letters to Hall, who lives in New York, and is not a party of record, although it has been held that when an original paper is in the hands of a person who cannot be reached by the process of the court it is as much beyond a party's power to compel its production as though destroyed, and that, therefore, its contents can be proved by parol without notice to produce, yet this rule, if sound, does not apply if there is a privity between the other party and the custodian of the paper, for in such case the instrument is deemed to be virtually in such party's possession, and consequently notice to produce is necessary in order to make secondary evidence of its contents admissible. 2 Phil. Ev. § 521. Hall was the party in interest in having the writ of possession executed, and in the circumstances the officer, the defendant Mattison, undoubtedly had a right to indemnity in respect of its execution. Cooley, Torts, 146; Grace v. Mitchell, 31 Wis. 533. There was, therefore, such a privity between the officer and Hall that notice to produce was necessary. As to the letters from the housekeeper, there is no doubt but proof of loss was necessary. Nor were these letters immaterial, and therefore the admission of their contents harmless error, as now claimed by the plaintiff; but, on the contrary, in the attendant circumstances, they undoubtedly had the tendency claimed for them by the plaintiff on trial. The defendants claimed, and gave evidence tending to show, that Hall did not rent the house to the plaintiff, but to her husband, and never rec ognized her as his tenant. It appeared that she personally paid none of the rent, but that her husband paid it from month to month to November 1, 1889, by remittances direct to

Hall, for which Hall receipted in writing to Murray; and that the plaintiff was fully cognizant of all the correspondence that passed between them concerning it as the business went on. In view of this, the letter of November 19, 1888, from Murray to Hall, offered in evidence by the defendants, and excluded, was admissible against her as tending to show, in connection with the other testimony in the case, that she understood that her husband, and not she, was the tenant.

The defendants presented 18 requests to charge, all of which, the record says, were refused. The defendants excepted to such refusal, and to the charge upon the subjects thereof. The defendants also alleged many specific exceptions to the charge. It is too long to consider these points one by one. Suffice it to say that we see no error in respect of many of them. A few other questions have been argued, but they are of minor importance, and are not discussed. We find no error concerning them. Judgment reversed, and cause remanded.

NORTON V. PARSONS et al. (Supreme Court of Vermont. Orleans. July

17. 1895.)

SUIT AGAINST PARTNER WITHDRAWAL OF FIRM FUNDS-EXAMINATION OF WITNESS-LEADING

QUESTIONS-AMENDMENT OF BILL.

1. In a suit by a partner against his copartner and his copartner's vendee, to recover from the vendee the value of part of the firm stock in trade withdrawn and sold by his copartner, it appeared that plaintiff, who had been doing business alone in the name of a company, took the defendant into partnership to do business under the old name. Plaintiff testified that the attorney who drew up the partnership contract told them both that the provision therein that neither partner should draw any money above his salary from the partnership funds, except for payment of debts of the company, meant the debts of the old company. To meet this testimony the defendant partner was asked whether he had ever heard plaintiff or the attorney claim, before or when the contract was drawn, that this provision meant the old company, to which he answered "No." Held, that the question was not incompetent, as leading, and, in so far as it related to plaintiff's testimony, was relevant.

2. Where, to a question asking a witness whether a person said a certain thing, is added the expression, "or that in substance," such expression will be construed, "or those words, in substance," and is not, therefore, incompetent, as asking the witness what such person meant by what he said.

3. Where the ground of objection to evidence is not stated, such objection will not be considered on appeal.

4. Where a witness asked as to the prices of thread bought by one firm from another testifies that he cannot give them, because he has no list present, a refusal to allow a cross-examination of such witness because his company agreed with the firm of which it bought not to divulge the prices is not reversible error.

5. A bill against a partner and his vendee, seeking to charge the vendee, for the benefit of the copartnership, with the price of part of the firm stock in trade unlawfully withdrawn by the defendant partner from the business and v.32A.no.12-31

sold, cannot be amended after judgment so as to charge the defendant partner as a partner, and have a settlement of the partnership affairs.

Appeal in chancery, Orleans county; Tyler, Chancellor.

Bill by G. U. Norton against R. C. Parsons and another to recover, for the benefit of the partnership, the value of certain partnership goods sold by his defendant partner to defendant Parsons. From a judgment for defendants, orator appeals. Affirmed.

The orator had for some time been engaged in the whip business at Derby Line, previous to March 1, 1889, under the firm title of the Rock Island Whip Company. About that time he formed a copartnership with the defendant, St. Pierre, and the business continued to be conducted after the formation of said partnership as it had been before, under the title of the Rock Island Whip Company. The orator alleged in his bill that about July 1st the defendant St. Pierre, without his knowledge or consent, took goods belonging to the partnership to the value of $1,000, and sold them to the defendant Parsons for about $500, and delivered them to the defendant Parsons; that said pretended sale was not made in due course of business, nor bona fide, nor with the knowledge and consent of the orator, but that St. Pierre delivered and Parsons received the goods, and converted them to his own use, well knowing that St. Pierre intended to defraud the orator by those means. The master found that St. Pierre took the goods for the purpose of withdrawing so much from the copartnership, and sold them to Parsons with the intent of applying the avails to his own use; that Parsons bought the same because he believed he was making a good trade, and not with any intent of defrauding the orator, nor with any knowledge that St. Pierre proposed to appropriate the funds to his own use.

A. D. Bates, for orator. Young, for defendants.

Dickerman &

ROWELL, J. The orator and the defendant St. Pierre were partners in the whip business, and their firm name was the Rock Island Whip Company. Before and at the time of the formation of their partnership, the orator had been and was carrying on the business under the same name. The copartnership agreement between them provided that neither should draw any money from the partnership funds during the term, above his salary, except what might be "required for the payment of the debts of the Rock Island Whip Co." To show that the debts of the old company were thereby meant, and not the debts of the new, the orator testified before the master, without objection, that said agreement was drawn by Attorney Hackett, who said to him and St. Pierre, when it was drawn, that said words, "the Rock Island Whip Co.," meant the old company, and not the new. To meet this,

St. Pierre was asked, on the stand, whether he ever heard a suggestion or claim made by the orator or Hackett, before or at the time said agreement was drawn, that said words meant the old company, and not the new. The question was objected to as leading and incompetent, but the objection was overruled, as matter of law, and the witness answered it in the negative. As to the objection that the question was leading, it was properly so, as far as it related to what the orator testified that Hackett said at the time the agreement was drawn, for it has long been quite the practice in this state, when a witness is called to contradict one who has said that such a thing was said or done, to ask, leadingly, whether the thing was said or done, although, for one, I think the nonleading method is preferable even here. As far as the question related to time antecedent to the time when the agreement was drawn, the answer could not have harmed the orator, for it was simply impossible for the witness to have heard either of those persons say anything about the meaning of those words as used in the agreement before it was drawn; and, as far as it related to what the orator did or did not say at the time it was drawn, the answer could have done no harm, for the orator made no claim of having said anything at the time; and clearly, in the circumstances, no unfavorable inference could have been drawn against him from his silence. Nor was the question irrelevant in the part that went to the matter of the orator's testimony, and, if irrelevant in the rest, the answer was harmless, as we have seen.

St. Pierre was further asked whether he heard the defendant Parsons say at a certain interview, at which the orator and the defendants were present, that he had bought the whips in controversy, and paid for them, but would return them if his money was refunded, "or that in substance." To this question the orator objected, as leading and incompetent; but the objection was overruled, as matter of law, and the witness answered, "I did." Before this the orator denied on cross-examination that Parsons said any such thing at that time. The criticism of the question is now bestowed wholly on the words, "or that in substance," for that they left the witness free to put his own interpretation upon what Parsons said, without stating the substance of the language he used. But we construe those words to refer to the language used by Parsons, and not to its meaning, as if they had been, "or those words, in substance." In this sense the question was perfectly proper, and if the orator thought at the time of it that the witness was undertaking to give the substance of what Parsons meant, instead of the substance of what he said, he could have easily found out how it was by inquiry. What is said of this question is an answer to a similar objection to the eighth question put to

this witness, and also to the objections to questions 14 and 15 put to the witness Darling.

The orator claimed that the sale in question was fraudulent, as to him, on the part of both defendants; and so St. Pierre was asked whether it was bona fide or not, or whether he retained an interest in the whips after they were delivered to Parsons and paid for. The orator objected to the question, but did not state the ground of his objection, and the objection was overruled and the question answered. When objection to a question is such that it can be obviated. as this was, correct practice requires that the objection be stated, that the examiner may obviate it by reforming the question, if he will. This rule is especially applicable to depositions, but it is a good general rule, and promotive of justice, for otherwise the objection would serve merely as a trap in which to catch the other party.

The complaint that the orator was improperly precluded from cross-examining the witness Norris concerning the prices he paid for thread in 1893 is not well founded, for before the master ruled that the witness need not answer, because his company had agreed with the firm of which it bought not to divulge the prices, he had answered that he could not tell, as he had no list present. This was a full answer to the question put, as far as the prices of thread were concerned; and, as there was and is no suggestion that the answer was not true, it seems reasonably clear that the orator could have gained nothing, in the circumstances, by further inquiry.

The sole ground of the bill for recovery against Parsons is that he purchased the whips for the purpose of defrauding the orator, and, as this is negatived by the finding of the master, no decree can be had against him on the facts disclosed. Nor can there be a decree against St. Pierre, as the case stands, both on the pleadings and the facts; for he must be charged, if at all, as partner, and the bill does not seek to charge him as such, and, indeed. does not seek to charge him at all, for in allegation and special prayer it seeks to charge Parsons only, and the facts found are no more to the purpose of charging St. Pierre than the bill is. It thus clearly appears that hitherto the orator has not designed to charge St. Pierre in this action, but only Parsons; but he now asks that the decree in favor of St. Pierre be reversed, that he may proceed against him for a settlement of their partnership affairs. But to proceed thus would necessitate an amendment of the bill that would make an entirely different case from what is now made by it. While the allowance of amendments of equity pleadings is matter of discretion, the exercise of which will depend largely on the special circumstances of the case, yet great caution should be used when the application comes, as here, after the liti

Judg

SCHOOL DIST. NO. 13 IN ST. JOHNSBURY v. SMITH.

(Supreme Court of Vermont. Caledonia. July 11, 1895.)

SCHOOL DISTRICTS-NOTICE OF MEETINGS-SUFFICIENCY OFFICERS-DUTIES.

1. Under R. L. § 521, requiring that notices of school district meetings shall specify the business to be transacted, a candidate for district treasurer, receiving the requisite number of votes at an annual meeting, the warning of which did not specify that a treasurer was to be elected, was not elected to that office.

2. There can be no officer de facto as to an office of which the officer de jure is in possession.

3. Under the statute providing that the duties of a treasurer of a school district shall be like those of a town treasurer, against whom the town is given a right of action for money had and received on his failure, on going out of office, to pay to his successor any balance due the town, no right of action accrued to the school district on the failure of its treasurer to pay a balance due the district to one who was not legally elected to succeed him, since by statute his term continued till his successor was legally chosen.

Exceptions from Caledonia county court; Tyler, Judge.

Assumpsit by school district No. 13 in St. Johnsbury against Ira G. Smith. There was a judgment for plaintiff, and defendant excepts. Reversed.

Harry Blodgett, for plaintiff. W. P. Stafford, for defendant.

ROWELL, J. If Huse was not legally elected treasurer of the district, the defendant's term of office as such treasurer had not expired when suit was brought, for by statute his term continued until his successor was chosen. The warning for the annual meeting of 1893, at which Huse was, in form at least, elected, contained no article for the election of officers, except for the election of moderator. It is claimed that no such article was necessary, inasmuch as the statute requires annual school meetings to be held on the last Tuesday of March, and the election of officers at every such meeting. The statute requires that notices of school-district meetings shall "specify the time and place of holding the same and the business to be transacted or questions to be considered" thereat, and makes no distinction in this re

1 R. L. § 521.

meetings. As this is a matter governed wholly by statute, there is little room for discussion outside. But we are referred to several cases as authority for holding that no such article was necessary; but they are not such authority. We will mention two of them. In Warner v. Mower, 11 Vt. 385, the validity of an annual meeting of a private corporation was called in question, concerning which the court said that it is the law of such corporations that, when the meeting is stated and general, no notice is required of the time or place of holding it, nor of the business to be transacted. But this doctrine has no application to annual meetings of municipal corporations, when the statute expressly provides how they shall be notified. In Schoff v. Bloomfield, 8 Vt. 472, it was held, it is true, that a town, at its annual March meeting, or at an adjourned term thereof, might transact business within the scope of its corporate interest, whether the subject of the business was mentioned in the warning or not. But at that time the statute of 1797 was in force, which did not require that the business to be done and the subjects to be considered should be set forth in warnings for annual town meetings, but only in warnings for special town meetings, and it was not till 1839 that the requirement was extended to warnings for annual meetings; and the case was put expressly upon the ground of such nonrequirement. Huse was not, therefore, legally elected. But it is said that he was treasurer de facto. But the defendant was in actual possession of the office; and an officer de jure and an officer de facto cannot both be in possession of the same office at the same time. Boardman v. Halliday, 10 Paige, 223, 232; 5 Am. & Eng. Enc. Law, 105. The defendant being treasurer, his duties as such are de clared by statute to be like those of town treasurers; and their duties are, by statute, among other things, to keep an account of moneys paid to them and paid out by them for the town; to pay orders drawn on them by certain other officers; to pay over to their successors the funds of the town in their hands when their office expires, if not reelected,-in default of which for a month they incur a penalty; and a balance due to the town from them, on going out of office, if not paid, on demand, to their successor, may be recovered in an action for money had and received. Although the defendant is, in a sense, the agent of the district, yet he is its agent under and according to the statute from which he derives his official authority, and by virtue of which he is the legal depositary and custodian of the money, as between him and the district, for the uses and purposes therein named; and therefore the district cannot, in this way, draw it from his hands; and, besides, if it could, it would thereby virtually deprive him of his office, which it cannot do thus indirectly, any more than it could supersede its prudential committee, or control