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plaint on which the defendant was acquitted. It is to be noted that the Constitution does not prohibit a second jeopardy for the same act, or group of acts, but only "for the same offense." Dec. of Rights, art. 1, § 8. The acts and the offense they constitute are different things, and the same acts may constitute more than one offense, and also different offenses, subjecting the actor to as many punishments as the offenses his acts constitute.

Thus a person by the same acts, or group of acts, may violate the statute against selling liquors; also the statute against being a common seller of intoxicating liquors; also that against keeping a drinking house and tippling shop; and also that against maintaining a common nuisance. If he be charged and convicted, or acquitted, of the violation of one of these statutes, he has been put in jeopardy only for that one offense, and not for the offense of violating any of the other statutes. State v. Coombs, 32 Me. 529; State v. Maher, 35 Me. 225; State v. Inness, 53 Me. 536. In the opinion of the court in this last case are cited many instances where it was held that a person may be punished more than once for the same act where the act constitutes more than one offense. We refer the reader to that opinion for the cases. The offense of assault and battery and the offense of unlawful assembly or riot are different offenses. Neither included the other. A person may commit either without committing the other. Nevertheless the same acts may sometimes constitute both offenses; but, when they do, the offenses are still different though the acts are the same, and the perpetrator of the acts may be punished twice, once for each offense. State v. Inness, 53 Me. 536, at page 537; Hurd v. State, 2 Root (Conn.) 186; U. S. v. Peaco, Fed. Cas. No. 16,018; Freeland v. People, 16 Ill. 380. We are aware that in some states the courts hold otherwise, but we think the above is the law of this state. It follows that the exceptions must be overruled.

In the case of State v. Inness, 53 Me. 536, where the court overruled the exceptions to sustaining a demurrer to a plea of former jeopardy, final judgment was ordered for the state after full consideration of the question whether the judgment should be final or only respondeas ouster. The decision was based on Rev. St. 1857, c. 77, § 28, now Rev. St. 1903, c. 79, § 56. "When a dilatory plea is overruled and exceptions taken, the court shall proceed and close the trial, and the action shall then be continued and marked 'law,'" etc. The defendant's plea of former jeopardy was a dilatory plea, since, if overruled, the judgment, but for the statute cited, would be simply respondeas ouster. He pleaded his dilatory plea alone, without obtaining leave to plead double, and, his plea

having been adjudged insufficient, he excepted, and, without obtaining leave to plead over if his exceptions should be overruled, he brought them directly to the law court before the trial was closed. Under the statute it must be held that by taking the course he did he waived whatever right he may have had to plead over when his dilatory plea was overruled, and that, having thus elected to abide by that plea, he must fall with it. State v. Inness, 53 Me. 536; Furbish v. Robertson, 67 Me. 35, page 38; Smith v. Hunt, 91 Me. 572, 40 Atl. 698. Exceptions overruled. Judgment for the state.

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WATERS AND WATER COURSES (§ 107*) RIGHTS AS APPURTENANCES-INSTRUCTIONS. or other buildings may be an appurtenance, and The charge that water running in a house that water running in premises so situated and under such circumstances that it belongs there belongs to the building or premises conveyed, passes with the building or premises in the deed, under the head of appurtenances, but it must be so used in connection with the building or premises, and under such circumstances that it confor the purpose for which it is used, that it bestitutes a part of such property so conveyed, longs there, is appurtenant thereto-is erroneous. as calculated to mislead the jury to believe that to be an appurtenance passing under a deed the water must have been running into the buildings or on the premises deeded in such cir cumstances as to belong to them, and must have been used in connection with them so as to conthe idea that the right to take water from a stitute a part of the property, thereby excluding spring could be an appurtenance if the water was carried from a watering trough, into which it ran from the spring, to the buildings and premises in pails.

[Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 107.*]

Exceptions from Orange County Court; E. | in a deed conveying the property with which L. Waterman, Judge.

Trespass quare clausum by Joseph Corevo against Elbridge Holman and another. Verdict and judgment for plaintiff. Defendant George Trask brings exceptions. Reversed and remanded.

it is thus connected. The plaintiff does not controvert this proposition in argument, but, on the contrary, says there is nothing in the charge indicating that an appurtenance must be connected with the house or building; that there was no claim on the part of

Argued before ROWELL, C. J., and TY- defendant Trask that at the time he took his LER, MUNSON, and WATSON, JJ.

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WATSON, J. This action was brought to recover for the alleged trespass of defendant in laying a pipe into a certain spring claimed by the plaintiff, which was situated on land adjoining that of defendant, but belonging to a third person. As to defendant Trask the verdict was guilty, and on his exceptions the case is here. The plaintiff produced a deed from one Sault and wife to him, conveying the farm on which he resided and containing the clause: "With the right to a spring on the J. Seymour place, meaning the spring where water is now taken." It was conceded by both sides that this is the spring here in question. Defendant introduced evidence tending to show that for upwards of 60 years the occupants of the premises owned by his father under whose authority he acted when he did the acts complained of had taken all their water for household purposes from a watering trough on the roadside, situated eight or ten rods from the house. This watering trough was supplied with water from the spring in question by means of "pump logs." The decd of the house and land to the defendant's father included the appurtenances. This conveyance was before the deed from Sault to the plaintiff. Evidence was introduced by both parties in respect to which party repaired the spring, pipe line, and trough. But defendant's evidence tended to show that his father had used the water ever since he had purchased the premises and so under a claim of right, and that the defendant had kept the spring in repair, replaced the logs by a pipe, and in 1906 laid a pipe from the trough to his house.

A prescriptive right to take water from this spring for the necessary use and benefit of the defendant's house and premises could be acquired by taking water from the watering trough for that purpose in pails uninterruptedly under a claim of right for the requisite period, as well as by taking water therefrom by pipe running to the house and premises, the only difference being in the method of conveying the water from the watering trough, or by both taken together in succession, and pass as an appurtenance

deed water from this spring was running to right to go to the spring to get water or to his house or land, but only that he had a the watering trough on a third person's land; and that the charge of the court rightly understood means that the right to go to the spring or trough for water may be an ape purtenance. The charge in this respect, to which exception was taken, was as follows: "Water running in a house or other building may be an appurtenance. Running water in premises so situated and under such circumstances that it belongs there belongs to the building or premises conveyed, passes with the building or premises in the deed, under the head of appurtenances, but it must be so used in connection with the buildings or premises, and under such circumstances that it constitutes a part of such property so conveyed, for the purpose for which it is used, that it belongs there, is appurtenant thereto." Then continuing the charge, the court said: "The water was not in fact running in the old logs when these deeds were made, according to the situation as I remember it. When it did run, it did not run across or upon the land conveyed which was the Trask place, and was in no way directly connected with the premises. Take the testimony in view of what I have said, and say whether the water or line of logs or the spring, or any right therein, was appurtenant to the premises conveyed. If it was not, then it did not pass as an appurtenant to those deeds."

We think that portion of the charge excepted to was well calculated to mislead the jury into believing that, in order to be an appurtenance passing under the deeds, the water must have been running in the buildings or on the premises in such circumstances as to belong to the building or premises deeded, and must have been used in connection with them so as to constitute a part of the property, thereby excluding the idea that the right to take water from the spring could be an appurtenance if the water was carried from the watering trough to the defendants' buildings and premises in pails, and the tendency of what the court said to the jury immediately thereafter was to strengthen such belief. This was error.

It is unnecessary to consider the other exceptions argued, as they are not likely to arise on another trial.

Judgment reversed and cause remanded.

(81 Vt. 549)

ALEXANDER & HUTCHINSON v. CITY
OF MONTPELIER.

The

side thereof, as hereinafter stated. petitioners, being dissatisfied with the action of the council, appealed therefrom to the

(Supreme Court of Vermont. Washington. Jan. county court, when commissioners were ap

16, 1909.)

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pointed, who resurveyed the street and reported that a retaining wall had been built. as aforesaid, and was in the street as laid out and surveyed by them, and improperly located, and should be placed further back on the bank, and onto the land of one Blanchard. The report was accepted, and the street

2. JUDGMENT (§ 506*)-COLLATERAL ATTACK-established as surveyed by the commissionGROUNDS-IRREGULARITIES.

A judgment open to objection because of irregularities in the exercise of jurisdiction cannot be collaterally impeached by a party thereto. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 949; Dec. Dig. § 506.*]

3. MUNICIPAL CORPORATIONS (§ 649*)-ESTABLISHMENT OF STREET-COUNTY COURT JU

BISDICTION.

The jurisdiction of the county court in laying out and establishing highways in cities is statutory.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1423; Dec. Dig. 8 649.*]

4. MUNICIPAL

CORPORATIONS (§ 649*) STREETS-ESTABLISHMENT-COUNTY COURT

JURISDICTION.

The county court has no jurisdiction, on appeal from the determination of the council of a city, ordering the resurvey, on application, of a street, and grading it and building a retaining wall on the side thereof, to order the city to move the wall on it, determining that the wall was in the street as resurveyed by commissioners appointed by it.

ers, with the usual orders as to time, etc. After this the city moved the wall some at the easterly end, but none of the rest of it, and it still stands within the surveyed limits of the street, and that is the nonperformance of the order complained of. The court accepted the report of the referee in this case, adjudged, pro forma, that the city had not performed said order, and fined it so much, to be expended in making the street according to the report of the commissioners, under the direction of a commissioner to be appointed by that court.

The city claims that the county court had no authority to order the wall to be moved out of the surveyed limits of the highway as it did, and consequently that that part of its judgment is void. The petitioners claim that, as the city was a party to the proceedings in which the judgment was rendered, it is bound thereby as long as the judgment stands, and [Ed. Note.-For other cases, see Municipal cannot impeach it collaterally, and relies for Corporations, Cent. Dig. & 1423; Dec. Dig. this on State v. Vernon, 25 Vt. 244. But that 649.*]

Exceptions from Washington County Court; Alfred A. Hall, Judge.

case is not in point, for it did not go upon the ground of want of jurisdiction, but only, at most, of irregularity of its exercise, and Application by Alexander & Hutchinson therefore the judgment could not be impeachagainst the City of Montpelier for the im-ed collaterally by a party thereto. But a position of a fine on the city for nonperform ance of an order of the county court. There was a judgment imposing a fine rendered on the report of a referee and report of commissioners in the original case, and the city excepts. Reversed, and judgment for defend

judgment void for want of jurisdiction may be impeached by a party thereto in any way, and at any time, for it is no judgment in law.

So the question is whether the court had authority to order the wall to be moved. If it had, it was statutory, for that is its only source of authority in laying out and establishing highways; and, on the question here Geo. W. Wing, for plaintiffs. Frederick P. involved, the statute is essentially the same Carleton, for defendant.

ant.

as it was in 1852, when the order was made, the nonperformance of which gave rise to ROWELL, C. J. This is an application the case of State v. Williston, 31 Vt. 153. under what is now section 3908 of the Public That was an indictment against four towns Statutes, to fine the city of Montpelier for on this very statute for not building a bridge not performing an order of the county court across Onion river according to the order of as to making a highway therein called Wilder the county court. The commissioners recomstreet. The city council laid out and survey-mended in their report that a bridge should ed said street at one time, but gave the pe- be built upon a plan and in the manner theretitioners, abutting landowners and dwellers in set forth, and specified with great parthereon, no notice of a hearing in the mat- ticularity how it should be done, the material ter, and no record of the survey was pre- to be used, the workmanship of its construcserved. So the petitioners applied to the tion, and the like. The court accepted the council to resurvey the street, and to make report, established the bridge, and ordered it a record thereof, which it did, and proceed- to be built as specified in the report. This ed to grade the street, and to cut it down in court said that the duty of laying out, esplaces, and to build a wall on the northerly | tablishing, building, and keeping in repair

TY-ASSUMPTION OF INCUMBRANCE-LIABIL
ITY TO GRAntor.

cree.

A grantee assumed to pay a mortgage on the land executed by the grantor. The mortgagee sued the grantor for the interest due on the debt, and sued to foreclose the mortgage. The decree of foreclosure became absolute, and the mortgagee took possession. The land was then worth more than the amount of the deSubsequently the grantor settled the suit against him by paying to the mortgagee a sum less than the amount of interest due at the commencement of the suit and the costs. Held, that the act of the mortgagee in taking possession on the decree becoming absolute operated as a and the grantee was liable to the grantor only purchase of the land in satisfaction of the debt for the amount expended in the suit against him for the interest.

highways and bridges is imposed upon towns | 4. MORTGAGES (§ 284*)-TRANSFER OF PROPERthrough the agency of their officers, and that the sole object of the Legislature in conferring jurisdiction of the subject in certain cases on the county court is to compel towns to discharge that duty; but that the court has no jurisdiction over the manner in which that duty shall be performed, except as to grading hills; that all that towns are required to do is to make a highway that is safe and convenient for public travel, and such as the public necessity requires, but that the form, material, and manner of construction are left to the judgment and discretion of the town on which the duty is imposed, the only limitation being that it shall be done so as to be safe and sufficient and convenient for public use; that if the court had a right to control towns in this respect, they would be bound to perform their orders strictly, and if any insufficiency arose by reason of such performance, it would be unjust to make them responsible for it. It was held, therefore, that the county court had no power to order the bridge to be constructed upon the plan submitted, nor to be built in any particular manner, nor to prescribe the material nor the workmanship, and that consequently its order to that extent was void. This case

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1. MORTGAGES (§ 283*)-TRANSFER OF PROPERTY-ASSUMPTION OF INCUMBRANCE-LIABILITY-GRANTOR AS SURETY.

A grantee who accepts a deed reciting his agreement to assume and pay as a part of the price a mortgage made by the grantor and who goes into possession under the deed, is primarily liable for the mortgage debt, and the grantor is a surety and may sue the grantee on his failure to pay the interest on the debt, whether the grancor has paid it or not.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 756, 757; Dec. Dig. § 283.*] 2. INDEMNITY (§ 15*)-PLEADING.

[Ed. Note.-For other cases, see Mortgages, Dec. Dig. § 284.*]

Exceptions from Washington County Court; Alfred A. Hall, Judge.

Action by D. A. Perry against W. H. Ward and another. There was a judgment for defendants, and plaintiff excepts. Reversed and rendered.

John W. Gordon and J. Ward Carver, for plaintiff. M. M. Gordon and A. A. Sargent, for defendants.

ROWELL, C. J. On February 26, 1902, one Sprague sold and conveyed a farm to the plaintiff, who gave back a mortgage thereon to secure his note for $2,750 for part of the price, payable at five years date, with interest annually. Six months later the plaintiff sold and conveyed the farm to the defendants, who, in the deed to them, assumed and agreed to pay the mortgage debt as part of the price. Subsequently the defendants sold and conveyed the farm to Carr and wife, who in like manner assumed and agreed to pay said debt as a part of the price; and they sold and conveyed it to Curtis and wife in the same way. After all this, and on April

24, 1905, Sprague sued the plaintiff to the June term of the county court for the interest then due on the note. He also brought a petition to the same term against Curtis and wife and a subsequent mortgagee to foreclose said mortgage, and obtained a decree limiting by agreement between the parties thereto, the time of redemption as to part of the note to December 1, 1905, which not being paid the decree became absolute, and Sprague took possession of the farm, and remained in possession until he sold it. When he took possession, the farm was worth more than the amount of his decree. After that and on suit against him by paying to Sprague $216.80 May 14, 1906, the plaintiff settled Sprague's damages, which was less than the amount of The plea of non damnificatus cannot be interest due on the note at the commencement pleaded when the condition is to discharge and of the suit, and $65.76 as and for the costs of acquit plaintiff from a bond or other particular foreclosure and the motion to shorten time, thing, and defendant must set forth affirmative-making in all $282.56, which he seeks to rely the special manner of performance. [Ed. Note. For other cases, see Indemnity, cover here, together with $24.15 that he laid Cent. Dig. § 42; Dec. Dig. § 15.*] out and expended for legal services and his

In all cases of conditions to indemnify and save harmless or to discharge and acquit plaintiff from any damage by reason of a particular thing, the proper plea is non damnificatus, and, if there be any damage, plaintiff must set it up by reply.

[Ed. Note.-For other cases, see Indemnity, Cent. Dig. § 42; Dec. Dig. § 15.*] 3. INDEMNITY (§ 15*)-PLEADING.

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

own expenses in and about that suit. On the facts found the court rendered judgment for the defendants, to which the plaintiff excepted. The plaintiff claims certain other exceptions that the court disallowed as not being properly taken. But, as counsel say they regard it immaterial whether they were properly taken or not, we do not consider the matter.

The defendants, by taking their deed from the plaintiff and going into possession under it, thereby assumed and agreed to pay Sprague's mortgage as part of the purchase price, whereby as between the plaintiff and the defendants the defendants became primarily liable for the payment of the mortgage, and the plaintiff became their surety therefor, and, according to some of the cases, the land became the primary fund out of which payment was to be made, while according to others the purchase money reserved by the grantees became the primary fund. Wells v. Tucker, 57 Vt. 223, Green v. Kelley, 64 Vt. 309, 24 Atl. 133, Field v. Hamilton, 45 Vt. 35, Comstock v. Drohan, 71 N. Y. 9, and Drury v. Holden, 121 Ill. 130, 13 N. E. 547, are of the first class. Rice v. Sanders, 152 Mass. 108, 24 N. E. 1079, 8 L. R. A. 315, 23 Am. St. Rep. 804, and Torrey v. Thayer, 37 N. J. Law, 339, are of the second class. See an extended note on this whole subject in 78 Am.

Dec. 72-90.

As the defendants agreed to pay, they were bound to do more than to indemnify and save harmless. They were bound to pay; and so, when the interest fell due for which Sprague sued the plaintiff, the defendants should have paid it, and, not having done so, the plaintiff could have sued them and recovered the amount of it, whether he had paid it or not. This is so by all the cases.

Locke v. Homer, 131 Mass. 93, 41 Am. Rep. 199; Rice v. Sanders, 152 Mass. 108, 24 N. E. 1079, 8 L. R. A. 315, 23 Am. St. Rep. 804, above cited. And it is well shown by the rules of pleading. Thus in all cases of conditions to indemnify and save harmless the proper plea is non damnificatus, and, if there be any damage, the plaintiff must reply it. But this plea cannot be pleaded when the condition is to discharge and acquit the plaintiff from such a bond or other particular thing, for there the defendant must set forth affirmatively the special manner of performance. It is otherwise, however, when the condition is to discharge and acquit the plaintiff from any damage by reason of such a bond or other particular thing, for that is in effect the same as a condition to indemnify and save harmless. 1 Saund. 116, note (1). But when Sprague's decree of foreclosure became absolute, and he took possession thereunder, it operated in law as a purchase of the farm by him in satisfaction of his mortgage debt; the value of the farm then being more than the amount of his decree. After that the plain

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tiff had no right to settle with Sprague and pay him as he did and charge it to the defendants, for Sprague had already been paid in full. But the plaintiff was damnified by that suit to the amount of $24.15 that he laid out and expended in and about the same as aforesaid, for which the defendants were to blame, as they should have paid as they agreed. The plaintiff, therefore, is entitled to recover that sum, with interest thereon from May 14, 1906, when he paid it. Judgment reversed, and judgment for the plaintiff accordingly.

(81 Vt. 517)

PORTER v. EVERTS' ESTATE. (Supreme Court of Vermont. Rutland. Jan. 14, 1909.)

1. CONTRACTS (§ 22*)-ACCEPTANCE OF OFFER -FORM.

municated by conduct. The acceptance of a proposal may be com.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 67-93, 104-108; Dec. Dig. § 22.*] 2.CONTRACTS (§ 22*)-ACCEPTANCE OF OfferSUFFICIENCY.

Under a written proposal by decedent to she should refrain from certain acts, etc., it have paid from her estate to plaintiff money if is immaterial to plaintiff's rights whether she accepted it in writing, where it appears that plaintiff's conduct conformed to the proposal, and that decedent knew that plaintiff had undertaken to perform on her part.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 67-93, 104-108; Dec. Dig. § 22.*] 3. WILLS (§ 88*)-WILL DISTINGUISHED FROM CONTRACT-INSTRUMENT CONSTRUed.

Decedent executed an instrument providing in the first paragraph that, if plaintiff should refrain from certain acts, decedent would have paid from her estate to plaintiff a specified sum. The second paragraph provides that, "if she promise all this, I agree that this sum shall be paid to her next after my funeral expenses, and that at the same time and in the same way shall be paid to her a sum sufficient to pay the three mortgages on her land." The third paragraph recited that decedent would leave furniture, etc., with plaintiff to dispose of in her own family and wherever decedent might direct. The fourth paragraph provided: "I leave this as an oblietc. Held, that the first two paragraphs imposgation to whomsoever shall settle my estate," ed a contract obligation upon decedent's estate, and that, while the instrument is of a twofold character, the third paragraph being in the nathe point of division, is at the end of the second ture of an attempted testamentary disposition, paragraph, making the provision for the pay ment of the mortgages part of the contract obligation.

[Ed. Note. For other cases, see Wills, Dec. Dig. § 88.*]

Exceptions from Rutland County Court; John H. Watson, Judge.

Action by Jennie L. Porter against the estate of Frances P. Everts; James A. Merrill, executor. From the judgment, plaintiff brings exceptions. Reversed and rendered. Argued before ROWELL, C. J., and TYLER, HASELTON, POWERS, MILES, JJ.

and

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