has so acquired the property, and to give back to the owner, so far as is possible under the circumstances of the case, the full value of that which cannot be restored to him in specie." Judge Miller then says: "There seems to us no doubt that in the case of a willful trespass the rule as stated above is the law of damages, both in England and in this country, though in some of the state courts the milder rule has been applied, even to this class of cases. * * * On the other hand, the weight of authority in this country, as well as in England, favors the doctrine that where the trespass is the result of inadvertence or mistake, and the wrong was not intentional, the value of the property when first taken must govern, or, if the conversion sued for was after value had been added to it by the work of the defendant, he should be credited with this addition." "Winchester v. Craig, 33 Mich. 205, contains a full examination of the authorities on the point." In that case, which was trover, for timber worth, when felled, $60.71, but, where sold by the wrongdoer, worth $850, the court applied the harsher rule to a bona fide purchaser from the tort feasor, holding that such purchaser took only the rights of his vendor. We think this case states the result of the authorities here and in England on this point. In the case at bar this court is not trammeled by the form of the action. The only question is, in what sum shall the orator account for the lumber which he wrongfully stripped from the premises, when there was, if the personal property should be applied, nothing due on his equitable mortgage? When he took possession the condition of the mortgage was broken. This gave the orator the right to take peaceable possession of the premises, and the crops grown that year. His entry was not wrongful. But when he converted the personal property, on which he had a lien, he was, in equity, paid in full for all there was due him on the equitable mortgage. by him while in possession. In section 1125 | ance for outlay on the part of the person who it is said: "If the property is otherwise sufficient, the mortgagee has no right to open and work mines, and, if he does so, will be charged with the gross receipts, without any allowance for the expense of working." Under the principle that he who seeks equity must do equity, every case is largely controlled by its own facts. From the facts reported, from the manner in which the orator took possession, in which he sold the personal property, and in which he stripped the premises of all the valuable lumber, when his security was ample, it is apparent that he purposely and intentionally disregarded the rights of the defendant, and intended to place him and the property in such condition that he could not raise on the property the money required to redeem it. He thereby placed himself in the light of a willful trespasser. In such cases, at law, the jury may award exemplary or punitive damages. To allow him to take the property, in such cases, at its market value, would allow him to compel its sale at that value, however much to the inconvenience and against the will of the owner. The decisions on the subject of the rule of damages in such cases have not been in full accord, and it would be difficult to reconcile them. Many times, evidently, the decision has been controlled by the form of action. Foote v. Merrill, 54 N. H. 490. For a full discussion of the question and review of the authorities, see Baker v. Wheeler, 8 Wend. 505, 24 Am. Dec. 66, and note; Batchelder v. Kelly, 10 N. H. 436, 34 Am. Dec. 174, and note; Curtis v. Groat, 6 Johns. 168, 5 Am. Dec. 204, and note; Mining Co. v. Moses, 15 Lea, 300, 54 Am. Rep. 415, and note; Blaen Avon Coal Co. v. McCulloh, 59 Md. 403, 43 Am. Rep. 560, and note. In E. E. Bolles Wooden-Ware Co. v. U. S., 106 U. S. 432, 1 Sup. Ct. 398, this question was considered. Judge Miller, who delivered the opinion of the court, commends the research of the plaintiff's counsel in placing before the court all the authorities, English and American. The English cases relate largely to mining coal. He quotes from the opinion of Lord Hartley, in the house of lords, in Livingstone v. Coal Co., L. R. 5 App. Cas. 33, as a statement of the English doctrine, as follows: "There is no doubt that if a man, furtively and in bad faith, robs his neighbor of his property, and, because it is under ground, is probably, for some little time, not detected, the court of equity in this country will struggle, or, I would rather say, will assert its authority, to punish fraud, by fixing the person with the value of the whole of the property he has so furtively taken, and making him no allowance in respect of what he has so done as would have been justly made to him if the parties had been working by agreement." But, "when once we arrive at the fact that an inadvertence has been the cause of the misfortune, then the simple course is to make every just allow The orator's counsel contends that the balance of the value of the personal property, above the amount due on the payment for the year 1892, was not sufficient to pay the costs of bringing the bill of foreclosure. But this is not certified to be the truth. There is no statement of the costs of bringing the bill. The court of chancery denied the orator any costs, on account of his "unnecessary and offensive conduct." Hence, while the orator's entry may have been lawful, so he would not be guilty of a forcible entry, he was, on the facts found, guilty of wrongfully wasting the premises, after he had, by conversion of the personal property, received enough to pay in full what was then due on his mortgage. It is true that equity never enforces forfeitures, nor inflicts penalties or punitive damages. But the question is not one of enforcing penalties, nor of inflicting forfeitures or punitive damages. The defendant's rights in the lumber continued while the orator was cutting and removing it to the place where he disposed of it. The question is whether the orator, under the circumstances, shall be allowed to deduct, from what the value of the lumber was at the place of disposal, what he had expended in cutting and removing it there. It is contended that the orator supposed he had the right to cut and remove the lumber. He was under no mistake as to the facts, and is presumed to know the law applicable thereto. He must therefore be held to have willfully, as well as wrongfully, cut and removed the timber. All his acts in so doing were done against the known will and protest of the defendant. As we have heretofore found, in equity the orator could charge nothing for his services in properly caring for the property while he was in possession. Much more, he should not be allowed for them in wrongfully stripping the premises of what would be most valuable and useful in aiding the defendant to raise on them the money required to redeem them. On the facts found, we do not think that the orator is entitled to an allowance for his expenditure in wrongfully cutting and removing all the standing lumber from the premises; thus leaving the sugar orchard unprotected from violent winds, which may greatly damage it, although, at the time of the leaying, no special damage had arisen from this cause. If the orator's acts could be fairly and reasonably justified, because consented to by the defendant, or because the security was insufficient, and must be immediately utilized to save the orator from loss, he should account for the lumber cut, at its stumpage value. Sanders v. Wilson, 34 Vt. 318. But neither the court of chancery nor this court can justify his acts. These views affirm the decree of the court of chancery. If the defendant should desire to move for leave to file a cross bill, he can do so in the court of chancery. Decree affirmed and cause remanded. START, J., dissents. BULLARD v. THORPE et al. (Supreme Court of Vermont. Franklin. Aug. 14, 1894.) WRIT OF PROHIBITION-WHEN ISSUES -SPLITTING CAUSE OF ACTION-TROVER BY PLEDGOR. 1. Where several items of personal property are pledged by a person for one loan, and the pledgor, without paying the loan, brings a separate action in trover for each item before a justice of the peace, placing damages in such an amount that the justice's judgment would be final, prohibition lies to stop such proceedings, since an entire claim cannot be so split up as to give jurisdiction not otherwise possessed. 2. It is immaterial that the court thus acquiring jurisdiction is not a court of record. 3. If several items of property are pledged at one time, for one sum, and no reason exists for a separate demand of each article, the contract of pledge is entire, and the pledgor cannot bring separate actions of trover for separate articles. Exceptions from Franklin county court. Petition for writ of prohibition by A. F. Bullard against George W. Thorpe, Myron Buck, attorney, and Henry C. Greene, justice of the peace, to restrain proceedings in trover. Writ granted. Dee & George, for petitioner. M. Buck, for petitionees. TAFT, J. This is the first instance in this state, within our knowledge, of a petition for a writ of prohibition. No mention is made of one in our Reports, and it is first mentioned in legislation in the revision of 1839, when the supreme court was given power to grant one. That provision still exists in R. L. § 782. The writ may issue if "necessary to the furtherance of justice and the regular execution of the laws." The proceedings to obtain one are regulated by R. L. c. 74. The object of the writ in this jurisdiction can be accomplished generally by appeal, exception, or writ of error. One never issues if there is other adequate remedy. It is an ancient and valuable writ, the use of which in all proper cases should be upheld and encouraged, as it is important to the due and regular administration of justice that each tribunal should confine itself to the exercise of those powers with which, under the constitution and laws of the state, it has been intrusted. The writ is so ancient that forms of it are given in Glanville (Beames' Translation) pp. 56, 97, et seq.,-the first book of English law, written in 1189,-and mention is made of it in nearly all the treatises upon the common law, and the early reports. The object and scope of the writ is stated in 3 Bl. Comm. 112, as "a writ directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof, upon a suggestion that either the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court." The writ goes against "as well the party and his counsel as the judge himself." 5 Jac. Law Dict. (1st Am. Ed.) 316. If a court has no jurisdiction of a cause, nor of a collateral matter incidental thereto, prohibition is an appropriate remedy, if the party aggrieved has no other relief. The remedy is a liberal one, and is not to be applied sparingly. It was so far extended that in Bracton's time (6 Bract., Twiss' Ed., 245) it was said in case an inferior justiciary took jurisdiction of a matter rightfully, and a superior court bad cognizance of the same matter, "the superior tribunal ought to be preferred to the inferior, and, if [the tenant] has shown to the superior court that he has been impleaded concerning the same thing in an inferior court, a prohibition shall issue on the part of the king that proceedings shall not be taken on that plea in the inferior court." In Quimbo Appo v. People, 20 N. Y. 531, Selden, J., speaks of the "broad remedial nature" of the writ, and says that it "was never governed by any narrow technical rules, but was resorted to as a convenient mode of exercising a wholesome control over inferior tribunals. The scope of this remedy ought not, I think, to be abridged, as it is far better to prevent the exercise of an unauthorized power than to be driven to the necessity of correcting the error after it is committed." The writ does not lie to prevent errors and irregularities in the proceedings if the matter adjudged is within the jurisdiction of the tribunal. Toft v. Rayner, 57 E. C. L. 162. It is no part of its office to prevent or correct errors in questions of which the court has cognizance. It is to prevent the unlawful assumption of jurisdiction, and it may be either jurisdiction of the entire subjectmatter, or of something collateral or incidental thereto. It "lies to prevent the exercise of any unauthorized power in a cause of which the subordinate tribunal has jurisdiction, no less than when the entire cause is without its jurisdiction." One general ground of prohibition is that, though the subjectmatter of suit is within the proper jurisdiction of an inferior tribunal, yet that in some collateral or incidental matter it is proceeding contrary to the common law or some statutory provision. Thus, it would seem, if we pursue these principles, that the courts have authority by this proceeding to supervise the execution of the laws, not merely by keeping inferior tribunals within their proper jurisdiction, but also by enforcing a correct execution of the laws, as well the common as the statute law. Jacob says: "Or if, in handling the matters clearly within their cognizance, they [the courts] transgress the bounds prescribed to them by the laws of England, a prohibition will be awarded." Upon the principal points above noted, the following cases may be referred to: 5 Jac. Law Dict. 317; Gould v. Gapper, 5 East, 364; Brymer v. Atkins, 1 H. Bl. 164; Darby v. Cosens, 1 Term R. 552; Leman v. Goulty, 3 Term R. 3; State v. Hopkins, Dud. (S. C.) 101; State v. Hudnall, 2 Nott & M. 424; State v. Ridgell, 2 Bailey, 560; State v. Nathan, 4 Rich. Law, 513; Ex parte Williams, 4 Ark. 537; Quimbo Appo v. People, 20 N. Y. 531; High, Extr. Leg. Rem. c. 31. It has been held that prohibition will not lie if the inferior court has prima facie jurisdiction; i. e. if, upon the face of the papers, the cause is within its cognizance. was so held in State v. Judge of Superior Dist. Ct., 29 La. Ann. 360. This does not seem to be just, for a plaintiff thereby may be enabled to recover upon a claim that is without the jurisdiction of a court by framing his declaration showing a cause of action within it. We think the rule in such cases has been to grant such writs upon showing by evidence, aliunde the record, that the court had no jurisdiction. In an anonymous case (I. P. Wms. 476) it is said: "A prohibi tion lies in chancery on affidavit that the matter is out of the jurisdiction; but no affidavit is necessary if, on the face of the declaration, the matter appears to be out of the ju risdiction." In a suit for tithes the tenant pleads that the party who sues is not incumbent, but that J. S. is. In this case it does not appear on the face of the papers that the court has no jurisdiction; "yet a prohibition must go, 'or else he [the tenant] shall be charged twice for his tithes.'" Green v. Penilden, Cro. Eliz. 228. These cases recognize the doctrine that prohibition may lie if the lack of jurisdiction does not appear upon the face of the papers. It is in cases in which there can be no appeal that a writ of prohibition is frequently applied for. Justices in a bastardy proceeding allowed an appeal to the general sessions. The latter court, denying the motion to dismiss the appeal, were proceeding to try the case when the alleged putative father applied to the supreme court for a mandamus to the sessions to vacate the order entertaining the appeal, or other remedy. The supreme court, holding that there was no appeal, said: "It is a case for a prohibition, instead of a mandamus. Let the order be made accordingly." People v. Tompkins, 19 Wend. 154. One had been tried, convicted, sentenced, and sentence executed. He was subsequently tried, convicted, and condemned to death, there being no appeal, for the same offense. A prohibition was granted to restrain the execution, which was confirmed unanimously by the court of apeals. parte Brown, 2 Bailey, 323. A court entered judgment of death for an offense not capital. The error could not be corrected by appeal. The court held that, although the cause and person were within the jurisdiction of the court, it transgressed the bounds prescribed by law, and granted a prohibition. State v. Ridgell, Id. 560. Ex A One can conceive of many instances in which the writ may be the only remedy. justice of the peace takes cognizance of a suit not appealable, upon a. claim of which he is the absolute owner. A person convicted of, and sentenced to be hung for, murder, after he has been acquitted of the same offense, his exceptions having failed without his fault. An inferior court proceeds to execute a judgment, notwithstanding an appeal. What remedy is there in such cases save a writ of prohibition? The petitioner has established the substantial allegations of his petition. Stripped of its verbiage, the case is this: The petitionee Thorpe pawned to the petitioner nine items of personal property, valued at $40, to secure the loan of about $25. That the petitioner has sold, upon due notice, a part of the property, and received therefor about the sum of $12; and that there still remains due him about as much more, which the petitionee Thorpe refuses to pay. That Thorpe, by his attorney, Buck, has begun a series of suits in trover for the items of the property so pawned bringing a separate suit for each item, before the petitionee Greene, a justice of the peace, placing the ad damnum in the writ at $20, so that no appeal to the county court can be had from the decision of said Justice Greene. Thus, the claim, which is an entire one, is split up, so that the justice can have final jurisdiction of the suits. That this is done to deprive the petitioner of his right of appeal, and the county court of its rightful appellate jurisdiction in the matters. That two suits have been brought for the first two items, and that one has been tried. That said justice, upon trial, refused the petitioner's plea and proof of the facts herein stated, and the petitioner is put to great and needless expense in procuring bail and defending said suits. It is clear from the proofs that there were but two contracts in respect to the pawned property, the two valises and contents being pledged subsequently to the pledge of the trunks and contents; but, by the arrangement at the time the valises were left in pledge, the whole property became pledged for all that was due the petitioner from Thorpe. Whether there was one contract or two is immaterial so far as this case is concerned, for the subject-matter of the two suits already brought against the petitioner was embraced in the first contract. It is well settled, we think, without a contrary decision, that a person cannot split up an entire indivisible claim, so as to give a court jurisdiction, that it would not otherwise possess. If he do, prohibition shall go. If he can do so, a justice of the peace can be given cognizance of causes involving immense sums. Girling v. Aldas, 2 Keb. 617; 19 Hen. VIII. c. 54; 1 Fitzh. Nat. Brev. 46; 2 Rolle, Abr. 280; Keilw. 106a; Catchmade's Case, 6 Mod. 91; Hutson v. Lowry, 2 Va. Cas. 42. It is often a difficult question to determine whether the transactions constitute an entire or a divisible contract, but we think if several items of property are pledged at one time, for one sum, and no reason exists for a demand of the several items at separate times, that it is one entire contract. In Farrington v. Payne, 15 Johns. 432, the defendant justified under an attachment of one bed and three quilts. The actions were trover, one for the bed, and another for the quilts. The court said the taking "was one single, indivisible act, and the plaintiff ought not to be permitted to vex the defendants by splitting up his claim for damages into separate suits for each article so seized." A claim for three barrels of potash was split up; a suit brought for the price of one, and another for the price of the other two; and the court say: "And yet the plaintiff has set up and divided his entire demand into separate suits, which of itself would be a fatal objection to the judgments." Smith v. Jones, 15 Johns. 229. In Willard v. Sperry, 16 Johns. 121, one note for $125 was split up into five parts, and as many suits brought; and: "Per Curiam. The judgment is erroneThe note, forming one indivisible contract, cannot be the foundation of several suits. It is a usurpation of jurisdiction, and a justice might, if this be tolerated, take cognizance of contracts to any amount." In Colvin v. Corwin, 15 Wend. 557, two actions were brought for lottery tickets, and the defendant admitted that the tickets were delivered to him by two different agents of the plaintiffs, at different places and at different times. A judgment in one suit was held a bar in the other, and it is said: "The justice of the case also accords with this disposition The splitting up of small demands to multiply suits is strongly discountenanced by this court. It is unnecessary and oppressive." This case was overruled in Secor v. Sturgis, 16 N. Y. 548, in respect to the construction of the contract, but not the legal rule applicable to the contract if it was an entire one. But if a demand is split up, and judgment recovered for a part, the legal proposition that a judgment for a part of one entire demand is a conclusive bar to any other suit for another part of the same demand is everywhere inflexibly maintained. Whitney v. Clarendon, 18 Vt. 253; Morey v. King, 51 Vt. 383; Burritt v. Belfy, 47 Conn. 323; Smith v. Jones, 15 Johns. 229; Farrington v. Payne, Id. 432; Willard v. Sperry, 16 Johns. 121; Miller v. Covert, 1 Wend. 487; Colvin v. Corwin, 15 Wend. 557; Bates v. Quattlebom, 2 Nott & M. 205; Bennett v. Hood, 1 Allen, 48. If A., by one act, converts 1,000 bushels of wheat belonging to B., and valued at one dollar per bushel, can B. maintain an action of trover for each bushel? Would it not be an outrage to allow a separate action for each bushel? No appeal being allowed, is not prohibition the only remedy? It has been held in this state that a plaintiff may waive a part of a claim and recover; that he may demand less than in justice he is entitled to, and thereby confer jurisdiction upon a justice, though the case upon its merits would properly belong to a higher jurisdiction. Stevens v. Pierson, 5 Vt. 503; Wightman v. Carlisle, 14 Vt. 296; Parkhurst v. Spalding, 17 Vt. 527. This principle is not involved in the case at bar, for the petitionee Thorpe waives no part of his claim. It is a common practice in this state to consolidate actions, pending in the same court, that might have been brought in one. It was an early doctrine of the common law that when several suits on separate contracts were brought, and only one was necessary, to award prohibition. In Girling v. Aldas, 2 Keb. 617, the contracts were several; and: "Per Curiam. A prohibition must be awarded. If the causes may be joined in one action, they must." And a prohibition was awarded. "If there be several contracts between A. and B., at several times, for divers sums, each under 40s., but amounting in the whole to a sum sufficient to entitle the su perior court to a jurisdiction, they shall be sued for in such superior, and not in an inferior court which is not of record." 1 Vent. 65, 73; 1 Show. 11. The fact that the court is not one of record we think immaterial upon the question of jurisdiction. The whole subject-matter of the pledge, or of the two pledges, conceding there were two, was within the jurisdiction of a justice of the peace; so the claim was not split up to give Justice Greene jurisdiction, but to give him final jurisdiction, thereby defrauding the county court of its rightful jurisdiction. The evil is the same whether the jurisdiction of which the county court is defrauded is original or appellate. Reference is herein made to many principles governing the proceedings relating to prohibition, principally by way of illustration, as the subject in this jurisdiction is comparatively new. The exact question presented and the one decided is this: We hold, if a person has an entire claim, he cannot split it up, and bring as many suits as there are parts, thus subjecting the defendant to as many suits as there are parts, and the resulting needless expense, without being, if the defendant has no other remedy, subject to prohibition. The petitioner sought for relief before Justice Greene, without avail, and he is entitled to a writ of prohibition, which must issue in the name of the state. In the brief for defendants it is stated: "The justice, Henry C. Greene, an aged man is, by agreement of counsel, not to be affected by the result in this case to his disadvantage." If he is too old to be affected by the result of these proceedings, it is evident he is too aged to be administering the law, even in a justice's court. The writ must issue against him as well as the party and his counsel. What effect upon these proceedings the dis continuance of one of the suits may have we do not consider, for it is not shown that either suit has been ended. It is ordered that a writ of prohibition issue, in the name of the state, signed by the clerk, directed to the petitionees, prohibiting them from proceeding any further in the actions mentioned, and set forth in said petition, and for the collection of the petitioner's costs of this proceeding, as taxed by the clerk. GOULD et al. v. CONANT et al. (Supreme Court of Vermont. Caledonia. Aug. 25, 1894.) LEASE-PAROL EVIDENCE-ASSIGNMENT-CONSID ERATION-ACCEPTANCE. 1. Where the lease of a pulp mill failed to state that royalties were payable on a certain machine therein, parol evidence is admissible, in an action to recover royalties paid, to show under what circumstances a subsequent assignment of the right to use the machine was given. 2 A subsequent assignment of the use of such machine on payment of the royalty, made pursuant to agreement at the time the lease was given, is supported by the consideration paid for the lease. 3. Such assignment, containing a provision that defendants should pay the royalties, was sent to defendants, who, without notice of dissent, struck out such provision, and retained the paper. Held to be an acceptance of the assignment as executed. 4. Defendants cannot take advantage of the fact that the machine so leased and assigned was not the identical one covered by the plaintiffs' license from the patentee. Exceptions from Caledonia county court; Ross, Chief Judge. Assumpsit by J. D. Gould and W. A. Somers against L. S. Conant and W. H. Bedell for royalties paid on machines used by defendants. Judgment for plaintiffs. plaintiffs. Defendants except. cept. Affirmed. Bates & May, for plaintiffs. Smith & Sloane, for defendants. MUNSON, J. The plaintiffs owned a mill and machinery designed for the manufacture of pulp. Included in this property was a patented machine, the right to use which depended upon the payment of a royalty to the owner of the patent. The plaintiffs leased the entire property to the defendants for a term of years, at an annual rental. The lease contains nothing in regard to the royalty. The plaintiffs claim to recover the royalties which they paid upon the machine while it was being used by the defendants. This claim is in accordance with the terms of an assignment sent to the defendants soon after the lease was executed, and retained by them under the circumstances hereafter stated. The defendants contend that the lease gave them the right to use this machine with the other property for the specified rent, and that no additional burden can be imposed upon them. It is insisted that the lease cannot be contradicted by parol evidence. and that the assignment subsequently received was not accepted as originally drawn, and that, if so accepted, the promise to pay the royalty was without consideration. It appears that, at an interview which preceded the execution of the lease, the plaintiffs insisted that the defendants should pay the royalty, and that the defendants declined to do so, and that the parties separated without coming to an agreement. At another interview, in which it did not appear that the matter of the royalty was mentioned, the defendants decided to take the property; and the lease was soon after prepared and executed. The referee finds that, in the negotiations which preceded the execution of the lease, the minds of the parties did not meet upon the matter of royalty, but that the plaintiffs understood that the defendants were to pay it, and that the defendants knew that the plaintiffs so understood it. It is further found that, when the lease was executed, both parties understood that the assignment of the plaintiffs' right to use this machine was to be effected by a separate instrument. Soon after the delivery of the lease, the defendants |