provided that the mare should be returned regularly for service when in heat, and that, "in case of the death or sale of the stallion, patrons of such horse may use any other horse." The stallion died. The mare had been regularly returned for service up to the time of his death but failed to be with foal. Held, that the plaintiff was not bound to return the mare for service by another horse.

2. General assumpsit will lie to recover the cash consideration paid under a contract which has wholly failed.

tional with him to do so. If he did not choose to avail himself of the privilege, he could stand upon the contract, disregarding his right to return the mare to another horse. The plaintiff therefore fulfilled the contract on his part by regularly returning the mare to Cobden so long as Cobden lived. He was under no duty to return her to another horse. It is urged on behalf of the defendant that his testimony tended to show that the warranty was

General assumpsit by M. M. Tatro against W. S. Bailey. There was a judgment for plaintiff, and defendant excepts. Affirmed.

W. P. Stafford, for plaintiff. J. P. Lamson, for defendant.

A

TAFT, J. The plaintiff seeks to recover the sum paid by him for the use of the defendant's horse Cobden in the season of 1890. catalogue was in evidence containing the terms of a contract. There was evidence in the case tending to vary the terms of the catalogue contract, but when the testimony was closed the defendant claimed that the contract for the use of Cobden was "just such as was in the book" (meaning the catalogue). He insisted that it was "essentially a contract in writing." When testifying, he was asked, if in making the contract he "in any way deviated from the terms set forth in the catalogue," and he answered: "I don't think I did. No, sir;" and he further testified that when a special trade was made for the use of Cobden it was always put in writing, and that no special trade was made with the plaintiff. The court held that the defendant might stand upon the contract stated in the catalogue. To determine the rights of the defendant under the contract it is necessary to refer to the catalogue. In it we find the contract set forth in these words: "Cobden, $50 the season; $75 to warrant. Cash or approved note at time of service." The contract was not for the season, but was "$75 to warrant," and that amount was paid in advance. contract was for the season of 1890. In effect it was this: The defendant agreed that the plaintiff's mare should be with foal by Cobden during the season of 1890. A clause in the contract reads, "Mares must be returned regularly for trial." It was the duty of the plaintiff to return his mare regularly for trial, at suitable times, if in heat, that she might be served by Cobden. The testimony of the defendant shows that the mare was regularly returned so long as Cobden lived. The defendant contends that upon the death of Cobden it was the plaintiff's duty to return the mare to another of the defendant's horses, by force of a clause on page 5 of the catalogue, which reads, "In case of the death or sale of either stallion, patrons of such horse may use any other horse by paying such difference in service fee as may exist." This clause did not bind the plaintiff to return his mare to any other of the defendant's horses.

The

It was op

right to return the mare to the defendant's horse in the season of 1891 if she did not become with foal in 1890. But the defendant chose to stand upon the contract as expressed in the catalogue, and it is not permissible for him now to insist upon any parol variation of it that his testimony might have tended to show. As we hold that under the contract the plaintiff was not bound to return his mare to any horse but Cobden, the death of the latter made it impossible for the defendant to perform his warranty. If the return privllege was a part of the contract, the defendant, Cobden being dead, could not perform on his part; and as he had warranted the plaintiff a foal, and his contract had wholly failed, there was no consideration for his retaining the plaintiff's money. Nothing remained for him to do but to pay over the money to the plaintiff. Under such circumstances, general assumpsit was a proper action for the plaintiff to bring to recover the money he had paid the defendant. Judgment affirmed.

MACK v. DAILEY.

(Supreme Court of Vermont. General Term.
Sept. 10, 1894.)
LEASE-OPTION TO PURCHASE-CONSTRUCTION AND
EFFECT-EJECTMENTAGAINST LESSEE.

1. Where a lease provides that if defendant keeps all its conditions he may purchase the land, the acceptance by the landlord, without objection, of rent after it is due, waives a breach of the condition as to the time of its payment.

2. A provision in a lease that the lessee may buy the land "at the option of the parties" means that the lessee may buy at his own option.

3. The rights of one in possession of land under a lease, giving him the option of purchasing the land, and who has given notice of his election to purchase, cannot be litigated in proceedings in nature of ejectment by the landlord, under R. L. § 1321.

Exceptions from Washington county court; Ross, Chief Judge.

Ejectment by J. W. Mack, administrator, against Walter Dailey. To a judgment for defendant, plaintiff excepts. Affirmed.

The plaintiff, as the administrator of one Jackson, leased to the defendant certain premises in the town of Woodbury for a term commencing June 1, 1891, and extending to November 1, 1891, for a rent of $10 per month, payable monthly, and whatever taxes might be assessed against said premises for that year. The lease provided that, if the defendant kept and performed all its

called. It is not free from expressions which in themselves would characterize a statute as remedial, rather than penal. The defendant is made liable in damages, and the ascertainment of the amount is characterized as an assessment. It is certain, however, that the designation of the recovery as damages or as a forfeiture is not conclusive as to the character of the statute. A statute giving a right of recovery is often penal as to one party and remedial as to the other. It is said that in such cases the true test is whether the main purpose of the statute is the giving of compensation for an injury sustained, or the infliction of a punishment upon the wrongdoer. We think an application of this test to the provision in question shows it to be penal. The foundation of the action is the loss of a life by reason of the defendant's negligence. There was no right of action at common law. This statute gives a right of action to the personal representative of the deceased for the benefit of the widow and children, or widow, or next of kin. If the right of recovery is established, the damages are to be $500 in any event. Any recovery beyond this is to be assessed with reference to the degree of the defendant's culpability. It appears, then, that whatever the damages may be, or whomsoever the person for whose benefit they are recovered, they are not given with reference to the loss sustained. If the recovery could be had only for the benefit of widow and children, the statute might perhaps more easily be looked upon as remedial. But the recovery may be for the benefit of distant relatives, who had no claim upon the deceased for support. And whether the recovery be for the benefit of widow and children or of distant relatives, the health or habits of the deceased may have been such as to preclude the existence of any appreciable pecuniary interest in the continuance of his life. All these matters, which enter into the question of compensation, are excluded from the inquiry. The wrongdoer is to be punished, whether the person receiving the amount of the recovery has sustained a substantial injury or not. If the beneficiary has in fact received an injury, it is in no way made the basis of the recovery. The provision differs in this respect from those which give damages in excess of the injury received. Statutes giving double damages to an aggrieved party are held not to be penal. Burnett v. Ward, 42 Vt. 80; Reed v. Northfield, 13 Pick. 94. But in such cases there is an ascertainment of the actual damages, and that ascertainment is the basis of the entire recovery. Here there is no ascertainment of the loss suffered, and, as far as the amount of the verdict is left to the judgment of the jury, it is to be determined by the culpability of the defendant's act, regardless of the injury resulting from it to the persons for whose benefit the suit is brought. It is true that in Newman v. Waite, 43 Vt. 587, an amount given without any reference to the

damage sustained was held to be given by way of compensation. But in that case, if the statute had merely created the duty of making the returns, the common law would have enabled the town to recover its actual damages for a failure to do so; and it was taken to have been the purpose of the legislature in its further provision to give a certain sum as fixed damages in lieu of actual damages otherwise recoverable which might not be easily ascertained. But that reasoning is not available here, for in this case the existence of the obligation to carry the deceased with due care did not give these beneficiaries a right to any damages whatever for the neglect complained of. And it is to be noticed that the giving of a fixed sum excludes a consideration of the degree of culpability as well as of the loss sustained. We think the rule given for determining the unascertained part of the recovery is the controlling feature of the statute. It is difficult to say that an assessment which is made to depend solely upon the degree of the party's culpability is not primarily meted out as a punishment. The sum is to be determined by the very considerations that would govern a court in fixing a fine for involuntary manslaughter. slaughter. The fact that it is given to persons whom the law would have entitled to share in the estate of the deceased cannot control the construction. A statute may be penal although the entire amount recovered be given directly to the party injured. The disposition of the recovery and the limitations of the amount recoverable are the same in the clause declared upon as in the provision for an alternative procedure by indictment, contained in the same section. The provision which is clearly penal serves the same purpose as regards compensation, and has no greater effect as regards punishment. view of these considerations, and in the absence of knowledge of a construction by the Massachusetts court, we hold that the provision sued upon is penal. Judgment affirmed, and cause remanded.

START, J., was absent in county court.

CUTTING v. ELLIS' ESTATE. (Supreme Court of Vermont. Washington. Sept. 20, 1894.)

-

In

PRESUMPTION ON APPEAL CLAIM AGAINST DECEDENT'S ESTATE-AMENDMENT OF DECLARATION.

1. Under R. L. § 2271, as amended by Acts 1888, No. 78, a claimant, on appeal from an order of the probate court disallowing his claim against a decedent's estate, may amend his declaration in the county court so as to include claims not presented to the commissioner by reason of fraud, accident, or mistake.

2. On appeal from an order of the county court allowing such amendment, it will be presumed, in the absence of a showing to the contrary, that the amendment was allowed pursuant to such statute.

Exceptions from Washington county court; Tyler, Judge.

Action by H. L. Cutting against the estate of J. W. Ellis. On appeal to the county court from an order of the probate court disallowing the claim, claimant amended his declaration by filing additional counts, and from an order overruling defendant's motion to dismiss such accounts defendant excepts. Affirmed.

S. C. Shurtleff, for plaintiff. Dillingham, Huse & Howland, for defendant.

START, J. This is an appeal from the disallowance of a claim by commissioners. the probate court the plaintiff filed a declaration in general assumpsit. In the county court he filed two additional counts in case. The defendant moved that these additional counts be dismissed. The court overruled the motion, and the cause comes to this court for hearing upon the defendant's exception to this ruling. The defendant's motion was properly overruled. In appeals from the allowance or disallowance of claims by commissioners, the claimant is required to file a declaration, and may join in his declaration as many counts as he has causes of action. Adams v. Corbin, 3 Vt. 373; Abbott v. Keith, 11 Vt. 525. When a claimant appeals from the disallowance of his claim by commissioners, it is his duty to file his declaration in the probate court. R. L. § 2272. If he omits to file a declaration in that court, he may, by leave of court, file it in the county court. Francis v. Lathrope, 2 Tyler, 372. When a declaration filed in the probate court does not correctly set forth the claimant's claim, the county court may allow him to amend; and, for the purpose of setting forth his claim or claims in proper form, he may join the same counts and causes of action that he could have joined in his declaration filed in the probate court. R. L. § 907; Brown v. Brown, 66 Vt. 76, 28 Atl. 666.

The ruling of the court below can also be sustained under R. L. § 2271, as amended by No. 78 of the Acts of 1888, which provides that if any claim in favor of the estate against the claimant, or any claim in favor of the claimant against the estate, has not been presented to the commissioners, by reason of fraud, accident, or mistake, on trial, upon filing statements of claims in the county court, recovery may be had for such claims not presented to the commissioners. The causes of action declared on in the two additional counts in case may not have been presented to the commissioners by reason of fraud, accident, or mistake. If this was so, the defendant had a right to file additional counts in the county court, setting forth the causes of action omitted in presenting his claim to the commission

ers. We cannot, for the purpose of finding error in the ruling of the court below, assume that the plaintiff did not thus file his additional counts, pursuant to the statute above cited. Affirmed and remanded.

THOMPSON, J., being engaged in county court, did not sit.

v.30A.no.17-14

SHEERAN v. ROCKWOOD. (Supreme Court of Vermont. Chittenden. Sept. 30, 1894.)

CLOSE-JAIL EXECUTION-WRONGFUL WITHHOLDING POSSESSION OF LAND.

Under R. L. § 1502, authorizing the court, in an action on tort, to grant close-jail execution, where it adjudges that the cause of action arose from defendant's willful and malicious act, such execution may be granted, in an action under section 1321, for the wrongful withholding of premises after termination of a lease by its own limitation or by breach of condition, in which the recovery is possession of the premises, and, as an incident thereto, rent for the period of wrongful detention.

Exceptions from Chittenden county court; Taft, Judge.

Action by Eleanor Sheeran against Caleb M. Rockwood, founded on the wrongful withholding by defendant of plaintiff's premises. There was a judgment for plaintiff, granting him a close-jail execution, and defendant excepts. Affirmed.

D. J. Foster, for plaintiff. M. H. Alexander and A. V. Spaulding, for defendant.

START, J. The court below adjudged that the cause of action arose from the willful and malicious act and neglect of the defendant, and that he ought to be confined in close jail. The defendant insists that the action is founded on contract, and that the court had no authority to grant a close-jail execution. If the action is one in which a close-jail execution could be properly granted, and the evidence tended to show that the cause of action arose from the willful and malicious act or neglect of the defendant, the finding of the court below that the cause of action arose from the willful and malicious act and neglect of the defendant is conclusive. Melendy v. Spaulding, 54 Vt. 517; Robinson v. Wilson, 22 Vt. 35; Whiting v. Dow, 42 Vt. 262; Soule v. Austin, 35 Vt. 515. The evidence is not referred to, and the only question we have to determine is whether the cause of action is such that a close-jail execution could properly be granted. The action is founded on the wrongful withholding of the plaintiff's premises by the defendant, and is brought under R. L. § 1321. It is in the nature of an action of ejectment, and must be regarded as an action founded on tort. Barnes v. Tenney, 52 Vt. 557. In actions founded on tort, the court, from a consideration of the facts, may adjudge that the cause of action arose from the willful and malicious act or neglect of the defendant, and that he ought to be confined in close jail. R. L. § 1502. The lease under which the defendant went into the possession of the premises terminated before February 7, 1893, by a breach of the conditions thereof by the defendant, and he thereafter continued in possession without right. He thereafter wrongfully withheld the possession of the premises from the

plaintiff, and the court has, in effect, found that he willfully and maliciously withheld such possession. The defendant having willfully and maliciously withheld the possession of the premises from the plaintiff, she was under the necessity of bringing this action; and her cause of action arose from the willful and malicious act of the defend

It has been repeatedly held in this state, in actions of tort, that a close-jail execution may properly be granted when the defendant has willfully and maliciously withheld the possession of personal property from the party entitled to it. There is no reason for a different holding in actions of tort, when it appears that the defendant has willfully and maliciously withheld the possession of real estate from the plaintiff. The statute under which this action is brought does not authorize the bringing of the action for the nonpayment of rent alone. To maintain the action there must have been a holding of the possession of real estate by the defendant without right, after the termination of the lease by its own limitation, or after a breach of a stipulation contained therein; and the recovery in such case is the possession of the premises, and, as an incident to such recovery, rent may be recovered. R. L. § 1324; Barnes v. Tenney, supra. The judgment below was for the possession of the premises and the rent that accrued while the defendant willfully and maliciously withheld the possession thereof. No exception was taken to the entry of this judgment, and the question of whether rent which accrued while the defendant held possession wrongfully and without right can be recovered in this action is not before us. The rent for which the court below rendered judgment was rent or damage that accrued to the plaintiff by reason of the defendant's willfully and maliciously withholding from her the possession of her property after his right thereto had terminated; and, the court having found that the defendant's act in this respect was willful and malicious, it properly granted a close-jail execution. The lease, in connection with the other evidence in the case, was admissible. Judgment affirmed.

Exceptions from Chittenden county court; Rowell, Judge.

Assumpsit by the town of Jericho against the town of Underhill for the support of a pauper. There was a judgment for plaintiff, and defendant excepts. Reversed.

Hard & Bliss, for plaintiff. J. J. Monahan, W. P. Dillingham, and S. C. Shurtleff, for defendant.

TYLER, J. Assumpsit to recover for the support of a pauper from February 7, 1891, to November 22, 1892. A former suit had been brought before a justice of the peace to recover for the support of the same pauper for a period prior to that for which a recovery is sought in this action. The defendant filed a dilatory plea, averring that the justice, by reason of interest, was disqualified from trying the suit. The justice decided that he was qualified, and rendered judgment for the plaintiff for its damages and costs. The defendant appealed, and the county court heard the cause upon the defendant's plea, the replication thereto traversing the plea, and facts found upon the issue joined, and rendered judgment pro forma dismissing the cause for want of jurisdiction in the justice. The cause passed on exceptions to the supreme court, which reversed the judgment, rendered judgment for the plaintiff, and remanded the cause to the county court for the assessment of damages, holding that that court should have rendered judgment in chief for the plaintiff, and assessed the damages. 64 Vt. 362, 24 Atl. 251. After the return of the cause to the county court, pursuant to a stipulation of the parties, the judgment of the justice was affirmed.

To establish its right of recovery in this action, the plaintiff introduced in evidence a certified copy of the record in the former suit. The usual judgment was rendered therein, which, by the rules of pleading, follows the trial of an issue of fact upon a plea in abatement when the issue is determined in favor of the plaintiff. "If it [the plea] be to the person or action or jurisdiction, and is found for the demandant or plaintiff, he shall recover the thing in demand." 1 Vin. Abr. tit. "Abatement," L, b. "It is well settled that if issue be taken upon a plea in abatement, and the jury find for the plaintiff, they must assess the damages in the same manner as when issue is found for the plaintiff upon a plea in bar." Dodge v. Morse, 3 N. H. 232, and cases cited. Though a plea to the jurisdiction is not properly a plea in abatement, it is a dilatory plea, and the consequence of pleading it is the same as in a plea in abatement. 7 Bac. Abr. tit. "Pleas and Pleadings," E, 2; Gould, Pl. c. 5, pl. 2. This rule, which is as ancient as the common law, is still maintained wherever the common law prevails. It was recognized in this court in the case above cited.