him who cannot show a better right to it. The defendant in the action of replevin can prevail only when it appears that he is entitled to a return of the property, and that can be only when it appears that his right is superior to that of the plaintiff. This doctrine has been repeatedly approved in subsequent cases, and must be accepted as the settled law of this jurisdiction. Cox v. Fay, 54 Vt. 446; Tittemore v. Labounty, 60 Vt. 624, 15 Atl. 196; Chaffee v. Harrington, 60 Vt. 718, 15 Atl. 350.

POWERS, J. Joseph Chapman, the fa-¡ to the possession, may maintain replevin ther of this defendant, let the plaintiff have against any person taking the property from a horse. The plaintiff claims, and his evidence tended to show, that this transaction was an absolute gift of the animal; while the defendant claims, and his evidence tended to show, that the arrangement was subject to certain conditions regarding the use of the animal, which conditions had been violated by the plaintiff, whereby he had forfeited all right to it. Soon after the horse was delivered to the plaintiff, Joseph Chapman died, and his widow succeeded to all his rights in the horse, if any he had. The plaintiff loaned the horse to a neighbor, and the defendant, acting by authority of his mother, seized the animal, and took it into his possession. Whereupon this action of replevin was brought.

The plaintiff in the case before us by proof of his prior possession established prima facie a right to maintain his action, and the instruction excepted to was free from error. Affirmed.

The only exception relied upon is to that part of the charge wherein the jury was instructed that, to defeat the action, the defendant must make out by a fair balance of evidence that "this gift or loan of the horse to the plaintiff was subject to those conditions, and that the plaintiff has violated 1.

those conditions." The defendant now insists that this instruction required him to prove, not only that the transaction was a loan, but that it was a loan on conditions, and that the conditions were broken; whereas he would be entitled to hold the horse if the transaction was a loan, and not a gift, regardless of conditions and breaches thereof. He also argues that the instruction was inconsistent with other instructions given

and conflicted therewith.

[1] But these claims were not made below, and consequently will not be considered here. The only fault which the defendant found below with this instruction was that it put the burden of proof upon the defendant, when it should have been put upon the plaintiff. So this is the only point raised by the exception, and the only one requiring consideration.

[2] That the horse was, when seized, temporarily in the actual custody of another to

whom the plaintiff had loaned it does not affect the rights of the parties here. The possession of the neighbor was the plaintiff's possession, and the situation thereby presented is just the same, so far as this litigation is concerned, as it would be had the horse been taken from the plaintiff himself. horse been taken from the plaintiff himself. It sufficiently appears, then, that the plaintiff was at the time the defendant took the horse in possession of it, claiming to be its owner. Possession alone is better than no title at all. It is presumed to be rightful and is some evidence of title, and is sufficient to support an action of replevin against a mere wrongdoer. It was said by this court in Sprague v. Clark, 41 Vt. 6, that a person who is in the possession, claiming the property or an interest in it or a legal right

Under P. S. 1503, which provides that counts in trespass may be joined with counts in trespass on the case, if for the same cause of for abuse of process, while distinguishable, stand action, counts for malicious prosecution and alike, where joined with a count in trespass and met by demurrer for misjoinder, and a count which alleges in substance that the defendant, without cause, maliciously sued out a body writ against the plaintiff, and caused him to be arrested thereon and imprisoned, may be joined where the injury complained of in each count with a count in trespass for imprisonment, is the same imprisonment; the "cause of action" referred to in the statute being the fact or facts which give rise to a right of actionthe matter for which an action may be brought; and a joinder of counts is not to be tested by the gist of the respective counts joined, but by the gravamen thereof, and, where the substance of the claim made under different counts is the not alleged, and though the gist of one differs same, identity is sufficiently established, though from that of the others.

[Ed. Note.-For other cases, see Action, Cent. Dig. §§ 328-359; Dec. Dig. § 41.* vol. 2, pp. 1015-1019; vol. 8, p. 7598.] For other definitions, see Words and Phrases, 2. APPEAL AND ERROR (§ 192*)-OBJECTIONS AND RULINGS-GROUNDS OF DEMURRER.

A ground of demurrer, not specified and not passed upon by the court below, will not be considered on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1221-1225; Dec. Dig. § 192;*' Pleading, Cent. Dig. §§ 1348-1354.]

Exceptions from Orleans County Court; Zed S. Stanton, Judge.

Action by Luman J. Slayton against Nellie S. Davis and another. Demurrers to the several counts of the declaration were overruled, and defendants excepted. Affirmed and remanded.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Vt.)

SLAYTON v. DAVIS

233

Grout & Grout, for plaintiff. J. W. Red- I were for the same cause of action. In Black mond and Young & Young, for defendants.

POWERS, J. This declaration contains two counts. It is agreed that the first, the substance of which is that the defendants assaulted the plaintiff and seized him and cast him into prison, is in trespass. The form of the second, which alleges, in substance, that the defendants, without cause, maliciously sued out a body writ against the plaintiff, and caused him to be arrested thereon and cast into prison, all for the sole purpose of forcing him to discontinue a certain action of trover which he had brought against the defendants, and which was then pending, is in dispute; the plaintiff claiming that it is case for abuse of process, and the defendants insisting that it is case for malicious prosecution. The parties agree, however, that the second count, whatever it may be in form, cannot be joined with the first, unless the two are for the same cause of action, within the meaning of P. S. 1503, which provides that counts in trespass may be joined with counts in trespass on the case, including trover, if for the same cause of action. The defendants demur to the declaration specifying as cause thereof the alleged misjoinder of the counts, and this raises the only question submitted.

v. Howard, 50 Vt. 27, the declaration contained two counts in trespass qua. clau. and one in case. The former alleged in substance that the defendant broke and entered the plaintiff's close, tore down the division fence between the parties, and with his cattle trod down, ate, and destroyed the herbage thereon growing; the latter alleged in substance that the defendant neglected and refused to maintain his part of the division fence between the parties, whereby his cattle escaped and entered upon the plaintiff's land, and ate and destroyed the herbage thereon growing. The court was satisfied that the third count was meant to cover the cause of action embraced in the others, and held in effect that they were well joined.

In Sawyer v. Childs, supra, it was held that a count in trespass qua. clau., alleging the carrying away of certain personal property, and trover for the same personal property, were properly joined; but that a count in trespass qua. clau., without such allegation and trover, could not be joined.

99

The question of identity under this statute does not differ from that involved in the rule that an amended count must be for the same cause of action. In such cases, the rule of this court, as recently announced in Davis' Adm'x v. Rutland R. R. Co., 82 Vt. 24, 71 Atl. 724, is that "the test is whether the proposed amendment is a different matter, or the same matter more fully or differently laid. If the latter, you can amend; if the former, you cannot.' According to the plaintiff's theory of this case, the facts which are set forth in the second count gave him a cause of action which he could assert, either in an action of trespass or an action on the case, at his option. The injury complained of in the first count and the injury complained of in the second count are one and the same injury, namely, the imprisonment. The second count is but another way of stating the plaintiff's claim, another form of declaring for the same thing, namely, damages for such imprisonment.

[1] Counts for malicious prosecution and for abuse of process are clearly distinguishable. They are, however, so similar in character that they stand alike, when joined with a count in trespass and met by a demurrer for misjoinder. So we do not deem it necessary to determine which of the parties correctly classifies this second count, in order to decide whether it is for the same cause of action covered by the first. An allegation of identity in such cases is not required (Templeton v. Clogston, 59 Vt. 628, 10 Atl. 594), nor is it always controlling. Sawyer v. Childs, 83 Vt. 329, 75 Atl. 886. All that is or should be required is that, from the declaration itself, the court shall be satisfied that the several counts are for the same cause of action. Templeton v. Clogston, supra. The "cause of action" referred to in the [2] But the defendants now say that on statute is the fact or facts which give rise the facts disclosed by the second to a right of action-the matter for which trespass for false imprisonment cannot, in an action may be brought. Joinder of counts any event, be sustained; that, since it apunder this statute is not to be tested by the pears by the second count that the plaintiff's gist of the respective counts joined, but by arrest and imprisonment was on a writ isthe gravamen thereof. If the substance of sued from the county court in due form, an the claim made under the different counts is action for false imprisonment on the same, identity is sufficiently established, of that arrest and imprisonment cannot be though the gist of one differs from that of maintained; and that it must therefore be the others. Thus in Hagar v. Brainerd, 44 taken that the first count is predicated upon Vt. 294, two counts in trespass qua. clau. some arrest and imprisonment, other than were joined with one in case. The court be- the one set up in the second count. We canlow overruled the defendant's motion to dis- not adopt this view, for we think it sufficientmiss the third count for a misjoinder. This ly appears that the two counts are predicated ruling was approved by this court, on the upon the same arrest and imprisonment. If ground that all the counts were to recover the defendants intend to make the further for the removal of the same dwelling house point that these counts are so inconsistent and underpinning stones, and consequently and repugnant to each other that proof of the

grounds alleged for a recovery in the second
necessarily disproves the grounds alleged for
a recovery in the first, and that this affords a
ground of demurrer for misjoinder, the suf-
ficient answer is that this ground is not
specified in the demurrer, and does not ap-
pear to have been passed upon below. There-
fore it will not be considered here.
Affirmed and remanded.

(85 Vt. 85)

CORLISS v. VILLAGE OF RICHFORD. (Supreme Court of Vermont. Franklin. Oct. 9, 1911.)

1. CONSTITUTIONAL LAW (§ 290*)-DUE PROCESS OF LAW-l'UBLIC IMPROVEMENTS-SPECIAL ASSESSMENTS.

A law providing for public improvements with special assessments upon abutting landholders is not unconstitutional in failing to give such landholders an opportunity to be heard upon the question of the necessity of the improvements, as no property is taken by the construction of the improvement, but only a foundation laid for the exercise of a particular right

of taxation.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 871-875; Dec. Dig. § 290.*]

POWERS, J. This is a proceeding for a reassessment for benefits conferred by the construction of a sewer on Province street in the defendant village. The only question raised or considered is the constitutionality of the act under which the assessment was made. The petitioner attacks the act on two grounds specified, as follows: (1) That the act does not give the petitioner an opportunity to be heard on the question of the public necessity for the construction of the sewer. (2) That the act does not provide a certain, fixed, and definite standard for assessing the landowners for the expense of construction.

[1] 1. In support of his first proposition, the petitioner relies upon Stearns v. Barre, 73 Vt. 281, 50 Atl. 1086, 58 L. R. A. 240, 87 Am. St. Rep. 721. But that was a case involving the law of eminent domain, while this is one involving the law of taxation. The distinction between such cases was recently pointed out in Durkee v. Barre, 81 Vt. 530, 71 Atl. 819, wherein it was held, upon a review of the authorities and in harmony with the views expressed in Woodhouse v. Burlington, 47 Vt. 300, that due process of law does not require that one liable to assessment for benefits should have an oppor

2. MUNICIPAL CORPORATIONS (§ 438*)-PUBLIO IMPROVEMENTS-SPECIAL ASSESSMENTS-tunity to be heard on the question whether "SPECIAL BENEFITS."

Special assessments upon abutting landowners for public improvements are based upon special benefits, which are those that the landowner receives from the improvements in excess of the general public.

the public good requires the improvement involved, since no property is thereby taken, but only a foundation laid for the exercise of a particular right of taxation. That case [Ed. Note. For other cases, see Municipal was followed and approved in Lazelle v. Corporations, Cent. Dig. § 1052; Dec. Dig. Barre, 81 Vt. 545, 71 Atl. 824, wherein the 438.* improvements were wholly unauthorized For other definitions, see Words and Phrases, when made, but a subsequent amendment to vol. 7, pp. 6569, 6570.] the defendant's charter provided for assess3. MUNICIPAL CORPORATIONS (8 407*)-PUB-ments upon an ex post facto determination LIC IMPROVEMENTS-SPECIAL ASSESSMENTSSTATUTES.

An act providing for public improvements, and authorizing special assessments, must fix the legal standard of the assessments; and so an act providing for an assessment for each landowner's "just share of the expense" is invalid, as the words "just share" do not with reasonable certainty limit the assessment to the special benefits conferred.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 407.*]

Exceptions from Franklin County Court;

Willard W. Miles, Judge.

of the public character and necessity thereof. [2, 3] 2. The petitioner's second objection must be sustained, for the law of the subject is with him. All agree that the only legal basis for assessments of this kind is the special benefits conferred by the improvements involved, and that special benefits are such as a landowner receives therefrom in excess of the benefits enjoyed by the general public. That the act authorizing the assessment must itself, either in express terms or by fair implication, fix that legal standard to which the assessment must be made to con

Petition by Gilman Corliss against the Village of Richford for the appointment of form, was established by Barnes v. Dyer, 56 commissioners to reassess petitioner for the Vt. 469. It was therein held that an act proexpense of laying a sewer. Upon a hearing viding for an assessment for such part of the of the report of the commissioners, and petiexpense incurred as the authorities should tioner's exceptions thereto, the exceptions deem "just and equitable" was insufficient were overruled, and a pro forma judgment and unconstitutional. The act under considrendered in favor of defendant. The peti-eration provides for an assessment for the tioner excepts. Judgment reversed, and as- landowners "just share" of the expense.

sessment vacated.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

These words, like those in Barnes v. Dyer, fail to establish a legal standard by which to determine the validity of an assessment. And this is so because they do not import, W. B. Locklin, for petitioner. A. B. Row- with reasonable certainty, a limitation to the ley, for defendant.

special benefits conferred. The act falls

DONOVAN v. SELINAS

short of constitutional requirements in this pro forma, and, from a decree for the orator regard, and affords no basis for an assess- in accordance with the prayer of the bill, ment. defendants appeal. Affirmed and remanded. Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Appeal in Chancery, Washington County; always collected the rents and made the reWillard W. Miles, Chancellor. pairs. Another witness, who was employed Bill in equity by Isabel S. Donovan against in Donovan's store for 5 years, and for 19 Charles Selinas and another. Heard on years occupied a part of the same building, pleadings, master's report, and defendants' and knew about his business affairs, testified exceptions thereto. Exceptions overruled that Donovan told her that he bought these •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

houses with his wife's money, and that she received the money from her father's estate. All the foregoing testimony was either re-! ceived without objection, or, if objected to, the exception thereto is waived by not being covered by the brief.

and treated it as belonging to her, and so was, as we have seen, admissible.

[3] The master finds the fact that Donovan bought the property in question with money belonging to his wife. That he is unable to find that she received all of the $3,000 from her father's estate is unimportant. The money was the money of the wife; and the finding precludes the idea that the husband had any marital interest in it.

[1] One of the witnesses above referred to was also allowed to testify that during the time she lived with the Donovans she never heard Mr. Donovan claim to own this property, and that at one time Donovan told his wife that Rivers, a tenant in one of the houses, wanted certain repairs made, and that she replied, "All right, I will have it done." This was taken subject to objection and exception, and it is now urged that so much thereof as relates to Donovan's failure to claim ownership was erroneously received, because no circumstances were shown calling upon him to make such claim, citing Pierce manded v. Pierce, 66 Vt. 369, 29 Atl. 364. But when, as here, the question is as to the ownership of property between husband and wife, evi

[4] Having bought the property with her money and having taken the title to himself, he held that title, so far as he had not conveyed it to her, for her use and benefit. Dewey v. Long, 25 Vt. 564; Williams v. Wager, 64 Vt. 326, 24 Atl. 765; Beddow v. Sheppard, 118 Ala. 474, 23 South. G62; Black v. Black, 64 Kan. 689, 68 Pac. 662. Pro forma decree affirmed and cause re

(85 Vt. 60)

dence showing how the matter was under- CHASE v. HOOSAC TUNNEL & W. R. CO.

stood and treated between them is relevant. Fletcher v. Wakefield, 75 Vt. 257, 54 Atl. 1012; Richardson v. Merrill's Estate, 32 Vt. 27; Caldwell v. Renfrew, 33 Vt. 213. The fact that during the 91⁄2 years that the witness was a member of Donovan's household he was never heard to claim this property, especially when taken with the other testimony of the witness that Mrs. Donovan always spoke of it as hers, and collected the rents and made the repairs, was of at least some probative value on the main question of ownership, and was properly received.

(Supreme Court of Vermont. Windham. Oct. 9, 1911.)

1. DAMAGES (§ 1*)-THEORY-COMPENSATION. Ordinarily damages are awarded on the theory of compensation.

[Ed. Note. For other cases, see Damages, Cent. Dig. § 1; Dec. Dig. § 1.*j 2. DAMAGES (§ 105*)-INJURIES TO PROPERTY -MEASURE.

Where property wrongfully destroyed may one purpose exceeds that for another, the owner be put to more than one use, and its value for may recover the larger amount.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 266-271; Dec. Dig. § 105.*] 3. DAMAGES (§ 112*)-MEASURE-INJURIES TO LAND-GROWING TIMBER.

The measure of damages for injury to growing timber by fire is the difference between the value of the land immediately before and immediately after the fire; the value before the fire being ascertained in view of the existence of standing timber.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 281-283; Dec. Dig. § 112.*] 4. DAMAGES (§ 174*)-EVIDENCE-ADMISSION.

of the trees, etc., may be considered, so that the owner could show that the hardwood trees were worth more standing, than if cut into firewood, and could also show how much more the land was worth as "sprout" land, than with wood upon it.

[2] Another witness testified that he was a tenant of one of the houses for 16 or 17 years, and that at one time he was out of work and went to Donovan and told him of his situation, and suggested that he would give a mortgage on his furniture to secure the rent for the approaching winter; that Donovan replied that it would be a long time before spring, and that a mortgage would not keep houses up; that Mrs. Donovan came in In determining the difference between the while they were talking, and, when she heard value of timbered land immediately before and after a fire which destroyed the timber, the charwhat was said, spoke as follows: "Mr. Wil-acter of the soil, kind, quality, age, and location lard, don't you worry. We don't want no mortgage. I own that house, and don't you let your little ones want for anything. I will let the rent set." To this statement, Don· ovan made no reply. This testimony was also excepted to, and it is now said to be selfserving. But it was made in the presence of the husband and in circumstances which would naturally call forth some sort of proIn an action against a railroad company test or denial if it was untrue. Besides, the for damages for a fire set by defendant's locowife was not only asserting ownership of the motive, plaintiff asked the engineer and fireman property, she was exercising an act of own had not made statements at a former trial conof the engine on cross-examination whether they ership by declining security for the rent and tradictory to their evidence just given, which agreeing to give credit therefor, which the the engineer admitted, and stated that the fact husband had manifested a disposition not to was as testified on the other trial: but the fireman said that he did not remember the statedo. The evidence tended to show that Dono-ments imputed to him on the other trial. Plainvan allowed his wife to manage the property tiff offered no other evidence as to the former

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 462-467; Dec. Dig. § 174.*] 5. WITNESSES ($ 387*)-CROSS-EXAMINATIONDISCRETION OF COURT.