rangement, or as a separate business of hers. [the letter-not as taking refuge in the statute What the defendant objects to, conceding the correctness of the general proposition, is that the court, after saying, "I say it is necessary that the plaintiff should show it," interpolated the command: "I don't know whether the burden is on the plaintiff, but it is necessary that it should appear at the end of the case." [2] The court at the beginning and end of the charge had correctly stated the rule as to the burden of proof. The defendant complains that here is an incorrect instruction as to this point as to proof of separate business, which was confusing and misleading, and that under the circumstances the court committed a reversible error in saying it did not know whether the burden was on the plaintiff; that the clear effect of this was to counteract the rest of the charge as to burden of proof. The language might very naturally be construed by the jury as a weakening in this particular of the requirement elsewhere stated as a fair preponderance of the evidence. The particular referred to was a vital point, and we cannot say that the distinction apparently drawn, though probably inadvertent, may not have prejudiced the defendant's defense in this particular, and therefore the charge on this point was errone ous. The court, also referring to the same point as to when the services were rendered, said: "But, if you find, gentlemen, that these services all came in naturally and properly and in a normal way with the bargain that was made with the husband, then it would be understood that they were rendered gratuitously or under circumstances which imply the gratuitous rendition of the services." [3] The defendant claims that the use of the word "gratuitously" was misleading and prejudicial as in substance stating that, if the plaintiff's services came naturally—that is, were the incidental services to be expected of the wife of the farmer-then they were rendered gratuitously, whereas, if rendered under husband's contract as farmer, they were paid for through him, and the jury would be reluctant to find plaintiff's services were given free. We do not think there is any merit in this claim. "Gratuitously," as here used, clearly means without right or well-founded expectation of compensation other than as incorporated in the farm services paid for under the defendant's contract with the farmer. There was no error in this clause of the charge. The court had correctly charged as to the effect of acknowledging that a debt was due and unpaid as taking a case out of the statute of limitations, and then continued: "In considering this point, you are to bear in mind, if you bring it into connection with the acknowledgement of the letter, as indicating of limitations and insisting upon its protection, but as bearing upon the question whether there was any promise at all contained in the letterwhether or not the fact that the defendant spoke of its not having been presented before does not carry the idea that thereby any promise to pay which otherwise might be inferred from the language was expressly disaffirmed." [4] The plaintiff had introduced in evidence three letters from the defendant. The defendant complains that the court erred in construing and declaring the letter or letters as an acknowledgment of the debt. No one of the three letters is an acknowledgment of a debt due and unpaid, and it was manifest error so to construe them to the jury. In the letter of July 3d the defendant wrote as follows: 29th that report about a legal suit by you "I was surprised to read in your note of June against me was news to you. It should not have been, as it was so reported or intimated by some member of your family. I wish to say that a member of your family has reported to me that you were planning to leave the farm. You intimate in your note that I am your debtor. If so will you please send me an itemized the claim been presented or referred to before bill showing the amount I owe. Why has not now." In a letter of July 13th this: "Your letter of the 12th July at hand this morning, and I am sending this to ask that you send me an itemized statement showing the amount of your claim. After all these years it seems strange that you should bring this matter up at this time. Why have you not called my attention to it long ago." And on July 17th this: "As yet you have not, as requested, rendered me a statement as to the amount of your claim against me. Will you please do so as soon as you can, and oblige." The utmost that can be claimed for this language is that plaintiff had been making some claim; that the defendant was surprised and wanted information. This is far from acknowledging any debt as due and unpaid, and it was error to so characterize these letters, or any one of them. [5] Objection was made as to the three letters above referred to as immaterial and irrelevant. They were admitted as purporting to show that the defendant knew the plaintiff had a claim, and to sustain some statement the plaintiff had previously made in court. Though the letters were not capable of being construed as an acknowledgment, as the court construed them in the part of the charge referred to above, we cannot see why the letters were not admissible as part of the negotiations between the parties about the plaintiff's claim and were clearly relevant to the question in issue. (115 A.) does not affect their relevancy as part of the series of communications, oral and written, from the whole of which the question of new promise must be determined, and there was no error in admitting them. [6] The plaintiff had testified fully as to her conversations with the defendant, and as to the work done by her and the payment by her of the proceeds of the butter and milk to the defendant, both on direct and crossexamination. Upon redirect she was asked: "This business of making the butter and the care of the chickens and the other things that you did around there yourself, whose business was that?" To which the witness answered, "Mine." This was objected to as calling for a conclusion, and not the facts from which the jury might draw a conclusion, but the court admitted the question over the objection. Ownership of personal property is ordinarily a question of fact to which a witness may testify, Matthews v. Livingston, 86 Conn. 272, 85 Atl. 529, Ann. Cas. 1914A, 195, and cases there cited; and this is so even though the ownership is the very matter in controversy, De Wolf .v. Williams, 69 N. Y. 621; 22 C. J. p. 534; Pichler v. Reese, 171 N. Y. 577, 64 N. E. 441. See, also, Jantzen v. Emanuel German Baptist Church, 27 Okl. 470, 112 Pac. 1127, Ann. Cas. 1912C, 659, to and note on page 664. The question called for a fact peculiarly within the knowledge of the witness and was properly admitted. There was error, the judgment is set aside, and the case is remanded for a new trial. The other Judges concurred. (95 Vt. 476) LA FLEUR et al. v. SMITH. (No. 338.) Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. Ira H. La Fleur, of Middlebury, for plaintiffs. Wayne C. Bosworth, of Middlebury, for defendant. TAYLOR, J. This action is founded on G. L. 2146, commonly referred to as justice ejectment. It came up on appeal from the judgment of a justice of the peace, and was tried below on an agreed statement of facts. Therefrom it appears that the defendant had been a tenant of the plaintiffs since November 20, 1918. The lease was not in writing and there was no express stipulation reserving to plaintiffs the right to re-enter in case of failure to pay the rent. The rent was due on the 20th of each month, but the defendant had never paid it on the day when due. At the time this action was brought early in October, 1921, the rent had been paid to the 20th day of July preceding. Between the latter date and the date of suit, the plaintiffs made demand for the rent, but not on the day when it was due nor on the premises. Notice was not given the defendant that her tenancy had terminated or that it would end on a particular date; nor was she given notice to vacate. Before final judgment in the justice court the defendant paid into court for the benefit of the plaintiffs a sum covering the arrears of rent with interest and costs. In the court below the defendant moved a discontinuance and for judgment for her costs accruing after tender. The motion was overruled, to which the defendant excepted. The defendant also excepted to the judgment, which was for the plaintiffs to recover possession of the premises, their damages and costs. The controlling question is whether G. L. 2130, applies to actions of justice ejectment. It provides that in actions of eject (Supreme Court of Vermont. Rutland. Jan. ment for nonpayment of rent the plaintiff 5, 1922.) shall not be required to prove demand of the Landlord and tenant 298 (1) Justice eject- rent in arrear or a stipulation for re-entry ment may be discontinued by payment of aron nonpayment of rent or a re-entry on the rears of rent; "action of ejectment for non-premises, but shall recover judgment as if payment of rent." A summary action of justice ejectment under G. L. 2146, when founded solely on the tenant's nonpayment of rent, is an "action of ejectment for the nonpayment of rent" within G. L. 2130, providing that in such actions, if defendant before final judgment pays into court the rent in arrears, with interest and costs, the action shall be discontinued. Exceptions from Addison County Municipal Court; Albert W. Dickens, Judge. Action by Ira H. La Fleur and others against Adell M. Smith. Judgment for plaintiffs, and defendant brings exceptions. Reversed, and cause discontinued. the rent in arrear had been demanded and re-entry made; but if the defendant in such action, before final judgment, pays into court the rent in arrear with interest and the costs of suit, such action shall be discontinued. The plaintiffs contend that the proceeding in justice ejectment is not "an action of ejectment for the nonpayment of rent," even when the only breach of the lease relied upon is the failure of the tenant to pay the rent when due. We are unable to agree with this contention. True, this court has often said that the action of justice ejectment is not an action for the recovery of rent or damages; but, to be properly understood, the statement must be read in connection with its context. The language is employed by 3. Evidence 50-Judicial notice that Ver- Judicial notice is taken that the Vermont Industrial Institution is "some suitable state institution" for the commitment of neglected, 4. Infants 19-On application of board of charities and probation, held court may commit to industrial school dependent child awarded to care of board. When it appears to the board of charities and probation that it cannot care for a child awarded to it, under G. L. 7328, providing for committing a dependent or neglected child to the care of the board or "some suitable state institution," the board may apply under such It is evident, and is so conceded by the plaintiffs in their brief, that this action is founded solely on defendant's breach of the stipulation of the lease respecting payment of rent. It is in very essence an action of ejectment for nonpayment of rent in contem-section for a further order, and, though the plation of G. L. 2130. It has been repeatedly held that the action of justice ejectment has all the elements of an action of ejectment at common law. Foss v. Stanton, 76 Vt. 365, 57 Atl..942, and cases there collected. One of the beneficent purposes of the statute under consideration is relief from the conse quences of a forfeiture of the lease for the mere nonpayment of rent, and is a corollary child be not delinquent, but only dependent or neglected, the court may commit him to such an institution, and properly committed a child in such a case to the state industrial school; this construction of this section being sustained by Acts 1919, No. 207, providing no dependent shall be committed to this school without the board's approval. 5. Infants 19-Order committing child to industrial school taken to have been approved by board of charities and probation. It must be taken that the board of charities and probation approved, as required by Acts 1919, No. 207, an order committing a dependent child to the state industrial school, the order being made on application of its executive officer, and it being a criminal offense under Acts 1919, No. 208, to receive a child without such approval. 6. Infants 18-Marriage not a release of child in control of juvenile court. The jurisdiction of the juvenile court over a child of thirteen was not affected by her marriage, and thereafter that court could take such action with reference to her discipline as the circumstances warranted. 7. Habeas corpus 30(1)-Not used for correction of errors and irregularities. The writ of habeas corpus cannot be used 1. Infants 16-Statute relating to delin- for the correction of errors and irregularities. quents liberally construed. G. L. 7323-7337, relating to delinquent children, enacted as a valid exercise of the police power, is not penal, but protective, and is liberally construed, and from the moment a child comes within the classes specified he becomes and continues a ward of the court till his majority, unless sooner discharged. 2. Infants 18-"Discharge" of child in care of board of charities and probation not an absolute release from court control. Under G. L. 7330, when a child is awarded to the care of the board of charities and probation it becomes a ward of the board, and passes out of the immediate control of the court and is "discharged" within meaning of section 7323; but the court retains jurisdiction to make further orders as future conditions require. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Discharge.] 8. Habeas corpus 26, 27-Writ available if court without jurisdiction or lacked authority for order. The writ of habeas corpus is available if the court whose action is assailed was without jurisdiction or lacked authority to make the order in question. 9. Habeas corpus 30(2)-Tests only the question of whether a crime is charged by complaint. In a criminal complaint, the writ of habeas corpus is available only to test whether a crime is charged, not whether it is defectively charged. 10. Infants 16-By single act of disobedience not "incorrigible" within statute. Under G. L. 7323-7337, relating to dependent and delinquent children, the term "incorrigible" means nothing more than that a child was deliberately unmanageable, and a sin (115 A.) gle act of disobedience was not the basis of a charge of incorrigibility, and commitment on this single charge on application of the board of charities and probation to the state industrial school was without authority. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Incorrigible.] to protect itself, was enacted in a valid exercise of the police power of the state. Tiedeman, §§ 52, 196A; Ex parte Januszewski (C. C.) 196 Fed. 123; State v. Isenhuth, 34 S. D. 218, 148 N. W. 9; In re Johnson, 173 Wis. 571, 181 N. W. 741. In none of its aspects is it criminal. House of Refuge v. Ryan, 37 Ohio St. 197; State v. Bryant, 94 Neb. 754, 144 N. W. 804; Farnham v. Pierce, 141 Mass. Original petition by Eugene Bagley Hook for a writ of habeas corpus to secure the dis-203, 6 N. E. 830, 55 Am. Rep. 452; Ex parte charge of Emma Bagley Hook, an infant, from the Vermont Industrial School. Infant discharged, and remanded to the board of charities and probation. Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. Millward C. Taft, State's Atty., of Chelsea, for the State. Hale K. Darling, of Chelsea, and Shields & Conant, of St. Johnsbury, for petitioner. POWERS, J. Emma Alice Bagley, a child 13 years of age, was committed by the Hartford juvenile court to the custody of the state board of charities and probation, as a neglected and dependent child. She was placed by the board in a family in the town of Con cord, where she remained a week or two, and until May 18, 1921. On that day, in the company of her father and the petitioner, she voluntarily and clandestinely left Concord and went to Chelsea. On the next day, in consummation of a previous engagement, she was married to the petitioner by a duly authorized minister of the gospel. This marriage was performed under a license regularly issued by the clerk of Chelsea, the town of the petitioner's residence the father or Emma, as surviving parent, consenting thereto in writing. Later in the same day the probation officer caused the said Emma to be brought before said court on a petition alleging, in effect, that she was insubordinate, in that she ran away from the place where she was being cared for by said board, with a man whom she claimed to have married. Thereupon she was adjudged to be a delinquent child, and was ordered to be committed to the industrial school during the remainder of her minority, and was committed accordingly. Januszewski, supra; In re Antonopulos, 171 App. Div. 659, 157 N. Y. Supp. 589; In re Turner, 94 Kan. 115, 145 Pac. 871, Ann. Cas. 1916E, 1022. It is not penal, but protective. It does not seek to punish the child or its parents for misdeeds or shortcomings. It steps in merely to save the child from the evil tendencies of its situation, and to give it more efficient care and training, to the end that it my 'become a more worthy and useful member of society. It is to be liberally construed. G. L. 7337. The welfare of the child lies at the very foundation of the statutory scheme, and, from the moment that the court classes specified therein, he becomes a ward of that court, and so continues until he attains his majority, unless sooner "discharged" as provided in said chapter. G. L. determines that a child comes within the 7323. [2] When a child is awarded to the care of the board of charities and probation, he becomes a ward of that board (G. L. 7330), and is "discharged" within the meaning of G. L. 7323. That is to say, he passes out of the immediate control of the court. But the term 'discharged," as used in the latter section, does not mean an absolute and permanent release from the court's control. The award to the board is so far conditional that the court retains jurisdiction to make such further orders as future conditions may require; and to this extent the guardianship of the board is subservient to the paramount authority of the court. Any other construction would tend to subvert the fundamental purpose of the statute. This authority of the court is not lost or exhausted, though the child be committed to a person or institution outside its territorial jurisdiction. In re Chartrand, 103 Wash. 36, 173 Pac. 728. [3-5] When it appears to the board, then, [1] This petition for a writ of habeas cor- that it cannot adequately care for a child so pus is brought to secure the release of the awarded to it, it may apply to the court for child from that commitment, and is based a further order, and, though the child be not solely upon the marital rights alleged to re- delinquent, but only dependent or neglected, sult from the marriage aforesaid. The facts the court may thereupon commit him to are not in dispute. The right of a husband to "some suitable state institution." G. L. 7328. prefer such a petition is not challenged; the The Vermont Industrial School is such an validity of this marriage is not called in ques- institution. Of this we take judicial notice. tion; and the legality of the original order Our interpretation of this section finds supcommitting the child to the board of charities port in No. 207, Acts of 1919, which provides and probation is not denied. Chapter 319 of that no dependent child shall be committed the General Laws, being passed for the pro- to this school, without the approval of said tection of a class of minors unable adequately board. Here, if important, it must be taken of the class known under the statute as children and minors, and terminated the jurisdiction of the court over her, and she was discharged. This was in 1906. In 1916, however, in Ex parte Willis, 30 Cal. App. 188, 157 Pac. 819, it was held that one who had, while a minor, been adjudged by a juvenile court to be a delinquent person, and placed on probation until she became 21 years of age, and who had, during her probation, married without the consent of the court, was not entitled to discharge on arriving at the age of her majority. that the board did approve, since the order was made on the application of the executive officer of the board, and because under No. 208, Acts of 1919, it would be a criminal offense to receive this child into that school without the written approval of such board. [6] When this marriage took place, then, this child was the ward of the board of charities and probation, and subject to the control of the Hartford juvenile court. Did her marriage, in and of itself, release her from this situation? The importance of this question is fully appreciated. It involves, on the one hand, the power and authority of the state, under chapter 319, while acting as parens patriæ in the discharge of most serious and essential civic obligations, and, on the other, of interests vitally affecting the most sacred and important of the domestic relations. The petitioner insists that this guardianship of the state was and could be of no higher character than one created by appointment of the probate court, or one arising from the parental relation, either of which would be discharged by the marriage -the one by force of G. L. 3718, and the other by force of Sherburne v. Hartland, 37 | delinquents is not suspended by the infant's Vt. 528, and other cases. With this contention we cannot agree. On the contrary, we think that when the state once assumes control of such a child as the statute describes its authority is and continues to be superior to any other, no matter what the latter may be even that under a retained jurisdiction of another court in prior divorce proceedings between his parents. In re Hosford, 107 Kan. 115, 190 Pac. 765, 11 A. L. R. 142, and note. The welfare and best interests of the child become the paramount and controlling consideration, and, before the state can be compelled to relinquish its control, it must be made to appear in some legal way that these considerations require it. In re Lundy, 82 Wash. 148, 143 Pac. 885, Ann. Cas. 1916E, 1007, it was held that the juvenile court law applied to a girl 17 years old who had previously been married, though the marriage had been annulled. And in the note on page 1012 of Ann. Cas. 1916E, it is said that it is generally held that the jurisdiction of a juvenile court of a charge of delinquency against a minor is not affected by the fact that the minor is a married person. In Stoker v. Gowans, 45 Utah, 556, 147 Pac. 911, Ann. Cas. 1916E, 1025, it was held that the operation of the law governing juvenile marriage. In that case a girl 13 years of age. was duly brought before a juvenile court, and, being adjudged a delinquent child, was committed to the state industrial school. Sentence, however, was suspended during good behavior, upon certain specified conditions. Afterwards the probation officer filed with the court a complaint charging that she had violated these conditions and resumed her evil ways. The court thereupon terminated the suspension of the sentence, and the child was committed. She was brought up on habeas corpus, and it was claimed in her behalf that, during the suspension of her sentence, she had married the petitioner. After pointing out that the record failed to show the alleged marriage, the court said: "But, assuming that she did marry, yet there is nothing in the law governing juvenile delinquents which suspends its operation merely because a [the] delinquent enters into the marriage relation." The authorities on the question under consideration are not in full accord. In State v. District Court, 118 Minn. 170, 136 N. W. 746, it was held that an injunction issued by the juvenile court of Minneapolis forbidding the marriage of a 15 year old girl who was under bail in delinquency proceedings before that court was of no force. The decision is put upon the ground that, at the time the injunction issued, no adjudication of delinquency had been made, and the girl was not within the control of the court. And attention is called to the fact that it is not decided what the situation would be if the court had com-gible; that she escaped therefrom, and was mitted her to the custody of some of its officers, instead of discharging her on bail. In Ex parte Lewis, 3 Cal. App. 738, 86 Pac. 996, which was a petition for a writ of habeas corpus by a husband to secure the release of his wife, a minor, who had been committed to the Whittier State School, it was In McPherson v. Day, 162 Iowa, 251, 144 N. W. 4, which was a habeas corpus proceeding to test the legality of the detention of a girl committed to an industrial school, it appeared that Martha Ellen Casson was duly committed to that institution as an incorri apprehended and recommitted on March 21, 1912, on which date she informed the officers of her whereabouts; that she had attained her majority (18 years) on March 14, 1912, and on the same day had married the petitioner. It was beld that, her commitment having been until she attained the |