said court would reverse said judgment in toto, and so believing your petitioner prosecuted said appeal upon the bill of exceptions so signed by said judge, and upon the hearing of said appeal, and on or about the twenty-third day of September, 1874, said appellate court in all things reversed said judgment of the district court, except so far as the same relates to said lots 3 and 4, and as to said lots said court affirmed said judgment for the sole and only reason that the bill of exceptions so signed by said judge did not contain a recital of the offer and introduction in evidence by your petitioner of said deed from said Hubbard to said Litchfield; that said appellate court would have reversed said judgment as to those lots also, had not your petitioner been prevented by the judge who tried said cause, as herein before alleged, from presenting and prosecuting said appeal upon a full, true and perfect bill of exceptions.

* *

And your petitioner further alleges that the acts of said judge, in refusing to give and sign for your petitioner a full, true and perfect bill of exceptions as herein alleged, were and are contrary to equity, and injure your petitioner, and that he has no relief from the same save in a court of equity, where such matters are solely cognizable and reviewable.

The plaintiff prays that the judgment rendered against the plaintiff on the twenty-sixth day of February, 1873, be set aside and a new trial granted, and that the judgment, so far as the same was affirmed by the supreme court, may be reviewed, reversed, set aside and held for naught, and that plaintiff's title to all of said premises be confirmed and declared valid and perfect. Both parties filed a motion that the cause be tried upon written evidence, and the court ordered all the evidence to be taken by depositions. By stipulation the cause was referred to the Hon. C. H. Lewis, to hear, try and determine. The referee reported the following as his sixth finding of fact: "That at the trial of this case in the district court on the twenty-fifth day of February, 1873, the plaintiff inadvertently omitted to introduce in evidence to the jury the deed from Robert J. Hubbard and wife to Grace H. Litchfield, but that when the judge was preparing his instructions for the jury in said case the said deed, with the others which had then been introduced, was handed to the judge, but that there was not then, nor at any time, any formal offer to introduce in evidence the omitted deed."

As a conclusion of law the referee found as follows: "That

under the issues and pleadings herein the plaintiff, Bellows, is not entitled to the relief demanded or to any relief, and that his petition should be dismissed at his costs, unless the plaintiff may elect to so amend his petition as to conform to the sixth finding of fact herein, and raise the issue that the deed was inadvertently omitted to 'e introduced on the trial.” The referee recommended that the plaintiff be permitted, if he so elect, to amend his pleading as indicated, and on his failure to do so that decree be entered dismissing his petition. The plaintiff failed to amend, and decree was entered as the referee recommended. The plaintiff appeals.

Theo. Hawley and Wright, Gatch & Wright, for appellant. No argument for the appellee.

DAY, J. The case is triable here de novo and is to be determined upon its merits, without any regard to the finding of the referee. Five of the jurors and three by-standers, as well as the plaintiff and his attorney, testify that the deed in question was introduced in evidence. It is certain that the number of the witnesses who testify upon the subject is largely in favor of the position of plaintiff that the deed was, in fact, introduced. It is probable, also, that the preponderance of the evidence, when tested by the rules for determining the value and weight of testimony, is also in favor of the plaintiff's position upon this point. In the view which we take of the case, however, we deem it unnecessary to determine as to the correctness of the referee's sixth finding of fact, about which the plaintiff especially complains. We have set out very fully the plaintiff's petition, because we deem it essential to a proper disposition of the case; for the plaintiff, if he recover at all, must recover upon the facts alleged in the petition. Emerson v. Udall, 13 Vt. 477, (484.) An examination of the petition will disclose that the entire ground of complaint is the alleged wrongful and wilful act of the trial judge in refusing to allow the plaintiff a full and fair bill of exceptions.

It is nowhere alleged in the petition that the opposite party, or his attorney, in any manner perpetrated a fraud upon the plaintiff. From the allegations of the petition it appears that the plaintiff knew, at the time the bill of exceptions was presented to the judge for his signature, that the judge refused to sign a full and fair bill of exceptions. The plaintiff presented his case to this court upon a bill of exceptions which he at the time knew to be unfair and incomplete. Failing to reverse the judgment of the court below, he now brings this case in equity to set aside this judgment, upon

the sole ground that the trial judge refused to give him a fair bill of exceptions, and that if such bill had been allowed the judgment below would have been reversed. We do not believe that the plaintiff's petition brings his cause within any recognized ground of equitable relief. Section 2835 of the Code provides a remedy where the trial judge refuses to sign a bill of exceptions. Whether this section is applicable to a case where the parties agree that the time may be extended beyond the term for the signing of the bill we need not determine. If there is any remedy for the refusal of the judge, after the adjournment of the term, to sign a fair bill of exceptions, it must be obtained before the case is passed upon in this court. A party cannot submit his case in this court upon a bill of exceptions known to be unfair and incomplete, take his chances of procuring a reversal upon such bill, and, failing, maintain an action in equity to set aside both the judgment in the court below and in this court, upon the ground that the court fraudulently refused to sign a fair bill of exceptions. In a note to section 1574 of Story's Equity Jurisprudence, upon the subject of equitable interference with judgments at law, it is said: "The rule of the best considered and more recent cases upon the subject is that the party must have failed in obtaining redress in the suit at law by the fraud of the opposite party, or inevitable accident or mistake, without any default, either of the party or his counsel." This we believe to be the correct rule. The petition of plaintiff does not make a case within the rule above prescribed.

Affirmed.

TEXANNER WRIGHT, Administratrix, etc., Appellant, vs. A. Y. RAWSON, Appellee.

Filed October 28, 1879.

Plaintiff's intestate was a miner, employed in defendant's mine. The petition alleged a custom among the miners, known and acquiesced in by defendant, of visiting each other in their leisure moments in the several rooms where they were employed; that a room in plaintiff's mine, for a long time unused, had become defective, the roof supports weakened and in a dangerous condition; that said intestate, in a leisure moment, went into such room to visit other miners there employed, when, in consequence of its defective condition, the roof fell in and he was killed. Held, that the plaintiff was not entitled to recover.-[ED.

Appeal from Polk circuit court.

Action to recover for injuries caused by the negligence of defendant, which resulted in the death of plaintiff's intestate.

A demurrer to the petition was sustained, and judgment rendered thereon for defendant. Plaintiff appeals.

B. A. Williams and Smith & Baylies, for appellant.
Barcroft, Given & McCaughan, for appellee.

BECK, C. J. The petition alleges that defendant is the owner of a coal mine, and is engaged in mining coal therein, and that plaintiff's intestate was employed as a miner by defendant. The petition then proceeds to set out the cause of action in the following words:

"The defendant and his superintendent knew that it was the custom of miners in said mine, and had been the custom from the time said mine was opened, when not actively engaged in work, to visit each other in their respective rooms; that, with full knowledge of such custom, defendant acquiesced in it, and thereby invited and permitted them so to do; that prior to said fifteenth of October, 1877, there was a room in said mine that had been, at one time, used by defendant for mining coal, but said room had been unused for about six months prior to said fifteenth of October, 1877, and, during the time of such non-use, the supports to the roof of said room had become decayed and weakened, and the rock, slate and dirt composing the roof had become weakened and loosened, so that the same was defective and dangerous, and was well known to be defective and dangerous by defendant and his superintendent, on said fifteenth of October, 1873; that the defective and dangerous condition of said room was entirely unknown to said Samuel Wright; that on said fifteenth of October, and while said room and roof were in the dangerous and unsafe condition aforesaid, the defendant, by his superintendent, carelessly and negligently caused two of defendant's employes to go to work in said room digging coal, and thereby caused said Samuel Wright and other employes to believe that the said room, and the roof thereof, were safe and not dangerous to be used and occupied, and thereby invited and permitted the said Wright, and other employes in said mine, to go into said room where two of defendant's employes were at work as aforesaid, in accordance with their usual and known custom, and without warning the said Wright in any manner that the said room was dangerous to be occupied or entered; that on said fifteenth of October said Samuel Wright was at work for said defendant as a miner, in a room in said mine, near to the said defective and dangerous room, when, about eleven o'clock in the forenoon of said day, and being at leisure for a few minutes, and knowing that miners were at

work in said room, and not knowing its dangerous condition, and acting upon the aforesaid custom and the acquiescence of defendant as aforesaid, therein, and relying upon defendant to keep said premises in a safe condition for use, entry and occupancy, as it was his duty to do, he, the said Wright, stepped out of the room where he was at work, and into said dangerous room, for the purpose of speaking to the men therein employed, and immediately after he had entered said room, owing to the dangerous and defective condition of the roof thereof, and the decayed and insufficient supports for the same, as aforesaid, four tons of rock, slate, and dirt composing the roof of said room, fell upon the said Samuel Wright, whereby he was instantly killed; that the death of said Wright, as aforesaid, was directly caused by the carelessness and negligence of defendant in permitting said roof to become loosened and weak, the props and supports thereof to become decayed and unsafe, and in causing his servants to occupy and use such room in such dangerous and unsafe condition, and in permitting, and by his conduct and acquiescence inviting, the deceased and others employed in said mine to use, occupy and enter said room, without adopting any rules to prevent them from being exposed to said danger, of which defendant had knowledge, and without warning them or said deceased of such danger."

The demurrer assails the petition on the grounds, among others, that "it shows the deceased was not, at the time of injury, in the line of his duty in the service or employment of defendant," and "it does not show that defendant was charged with any care or diligence to protect persons visiting said room from danger of injury by the falling of the roof of said room. In order to establish liabilty of defendant it must be made to appear that the intestate was in defendant's employment and in the proper discharge of duty, and that he did not voluntarily seek a place of danger. It cannot be claimed that defendant would be liable if the intestate had been a visitor to the mines, or had left his proper place and sought the dangerous room without thereby serving defendant or discharging any duty of his employment. When the accident happened it clearly appears that the intestate was not engaged in mining, which was his employment; that his proper place was not in the room where he was injured, but on the contrary he was a visitor there for his own pleasure or amusement. The intestate not being engaged in his employment was in the same position as a visitor to the mine.