lord, a church, testified, as plaintiff's witness, that he leased the land to plaintiff, and received the rent from him. On cross-examination, over objection, he was asked whether he had not stated to various persons that he received the rent from plaintiff under protest, and whether he had not made other statements concerning the receipt and disposition of the rent, plaintiff not having been present at these conversations. Held, that defend ant was bound by A.'s answers, as well because the matters were immaterial as for the reason that as to such matters he had made A. his witness.

2. Entries in the church records tending to show that the land could not be rented to M. for the year 1882, and that A. had therefore let it to defendant, are inadmissible against plaintiff, for the purpose of showing that M. was the tenant for the year 1881,-the year in controversy,-and that A. knew that fact; plaintiff having been neither a member of the church nor present at its meetings.

Exceptions from Chittenden county court; TYLER, Judge.

Assumpsit by George Alger against R. O. Castle for rent. There was a plea of non assumpsit, and trial by jury. Exceptions to the admission of evidence were taken by plaintiff during the progress of the trial, which resulted in a verdict for defendant. L. F Wilber and A. V. Spalding, for plaintiff. Henry Ballard, for defendant.

Не

several exceptions to this class of testimony, which the defendant was allowed to introduce, are sustained.

various persons that he received the rent from the plaintiff under protest, and also what was said between him and others, when the plaintiff was not present, about how the $20 was received and disposed of. Then the defendant was allowed, against the exception of the plaintiff, to show in detail what was said on these occasions by Allen and others about the receipt and disposal of the money, to contradict Allen. The plaintiff gave no directions in regard to the disposal of the $20 which he paid for the rent of the lot, and could not be affected by what Allen or the others said on that subject without his knowledge. What was done with the $20, and all that was said by Allen or the others in regard to its disposal, except to show that the society for which Allen acted received and kept the money, was immaterial to any issue in the case, and the defendant could not lawfully contradict Allen, the plaintiff's witness, in regard to this immaterial matter, although Allen was allowed to be examined on it by the defendant without objection by the plaintiff. The plaintiff not having introduced the subject in his examination in chief, the defendant made Allen his own witness on this Ross, J. This action is assumpsit for the point, and was bound by his answers. recovery of the rent of the Priest lot. It could not be allowed to impeach Allen upon does not appear to have been controverted immaterial matter thus called out by him, that the plaintiff hired the lot of the Baptist both because he made Allen his own witness society for the year 1881. He claimed to on such matter and because it was immatehave sublet it for that year to the defendant. | rial to any issue in the case. The plaintiff's The defendant does not appear to have contravened that he had the use of the lot that year, but he claimed that the plaintiff either surrendered the lot during the spring of that year to the society, and that the society relet the lot to James Miner, or that James Miner became the lessee for that year by novation, and that he hired of James Miner. It appeared that Miner first paid for the use of the lot that year in wood, and then the plain- Against the plaintiff's exception, the detiff paid for the use of it in money; that the fendant was allowed to put in evidence the society took the money paid by the plaintiff, records of business meetings of the Bapand paid it to Miner. The main contention tist society of April 1, 1882, in which it was on the trial was whether the plaintiff or Min- stated that a brother reported that the Beecher was the lessee of the society for that year. er lot could not be rented to Mr. Miner this The society, through one of its officers, Al- year, and of June 3, 1882, at which Allen relen, first rented it to the plaintiff. Then ported that he had rented the lot to R. O. some of the other officers of the society, un- Castle. This was allowed to be introduced derstanding from the plaintiff that he was to show that Miner rented it in 1881, and willing to surrender the lease of the lot, Allen knew it. It is very evident that the rented it to Miner, and the rent was paid to records have no tendency to show any such the minister in wood by Miner. Afterwards fact against the plaintiff, who was not a the plaintiff paid the rent in money to Allen, member of the society, so far as is shown, through whom, acting for the society, he nor present at the meetings. The records are hired the lot. Allen and the other officers of entirely empty of any allusion or reference to the society, finding they had thus received the person who rented the lot in 1881. The rent twice, took the money paid by the plain-admission of these records was clearly errotiff, and had one of their number carry it to Miner, and get him to take it. The plaintiff There are other exceptions to the admisused Allen as a witness to show that the sion of evidence, and to the refusal of the plaintiff hired the lot for that year, and that court to charge as requested, relied upon, he paid the rent therefor in the spring of but which we need not consider, as what we 1882 to Allen. This was all that the plaintiff have already considered reverses the judgshowed by Allen when first called. In cross- ment of the court below. The judgment of examination the defendant was allowed to in- the county court is reversed, and cause require of Mr. Allen whether he did not say tomanded for a new trial.

Several witnesses were also allowed to testify to what they had heard and what was current in the church, against the plaintiff's exception. It is too elementary to need the citation of authorities that such testimony could not be received lawfully.

neous.

(61 Vt. 45)

STATE v. MAGOON. (Supreme Court of Vermont, General Term. May 1, 1889.)

ceny, the court may impose a sentence of imprisonment for 10 years. R. L. § 4137. Inasmuch as the length of the imprisonment INFORMATION-GRAND LARCENY. is within the judgment and discretion of the Under R. L. Vt. § 1618, providing that state's at court imposing the sentence after the contorneys may prosecute by information all crimes, viction, and after it has become acquainted except those punishable by death or by imprison-with the circumstances attending the commisment in state-prison for more thau seven years, an information charging grand larceny, for which crime, under R. L. 8 4137, the court may impose a sentence of imprisonment for 10 years, is insuf

ficient.

Exceptions from Orange county court; ROWELL, Judge.

This was an information charging Edson Magoon with the larceny of eight sheep, of the value of three dollars each. To this information defendant demurred, claiming that a prosecution for this offense could only be begun by indictment. The court overruled the demurrer, and adjudged defendant guilty, to which he excepted.

Heath & Willard, for respondent. J. H. Watson and J. K. Darling, for the State.

sion of the crime, and with the character of the respondent, it would be absurd to hold that a state's attorney, by commencing the prosecution by information, could limit the right and power of the court to a sentence of seven years' imprisonment, when the express statute has placed no such limitation upon the court's right and power. This would confer upon state's attorneys a right which the legislature never intended. This view of the right and power of state's attorneys to prosecute by information is determinative of this case in favor of the respondent.

statute from a time reaching back to a period when many of those who framed and adopted our present constitution were living, and that these statutes have been acted upon unquestioned for nearly 70 years, it would not be profitable to consider this contention of the respondent in a case the decision of which renders its consideration immaterial. The respondent's exceptions are sustained, the judgment of the county court is reversed, the information adjudged insufficient and quashed, and the respondent discharged.

(61 Vt. 254)

Considerable was said in argument in regard to the constitutional provisions, state and national, in regard to prosecutions by information of crimes which were infamous at Ross, J. The information filed by the common law. Prosecution by information state's attorney against the respondent, of the highest crimes, in fact of all crimes, charged him with having committed the was authorized by statute from 1819 to 1839. crime of grand larceny. The demurrer to the Since 1839 the present statute has been in information brings in question the legal right force. Remembering that prosecutions by of the state's attorney to prosecute that of-information have been thus authorized by fense by information. The only statute relating to prosecutions by information by state's attorneys is R. L. § 1618, which reads: "State's attorneys may prosecute by information all crimes, except those which are punishable by death, or by imprisonment in the state-prison more than seven years." In regard to crimes punishable by imprisonment in the state-prison, the natural and plain meaning of the terms of the statute limits the right of the state's attorney to prosecute by information to those crimes for which the highest penalty prescribed does not exceed a sentence of more than seven years' imprisonment in the state-prison. The limitation is crimes punishable, or which by the provisions of law may be punished, not to exceed the time mentioned. So far as advised, this is the construction which has uniformly been placed upon this section of the statute. It has remained upon the statute-book unchanged since the enactment of the Revised Statutes of 1839. We do not understand that any different doctrine was attempted to be or was enunciated in State v. Haley, 52 Vt. 476. The expression there used, "and those of which the punishment exceeds seven years in the state-prison," is not inconsistent with the holding already announced. The learned judge who delivered the opinion of the court in the expression quoted was not attempting to define whether the seven-years limitation of punishment was that prescribed by the statute or that imposed under the statute. It is a strained and unfair construction of the language used to claim that it means the punishment imposed rather than the punishment which the statute authorizes the court to impose. Upon conviction of grand lar

RILEY . MCINLEAR'S ESTATE. (Supreme Court of Vermont, General Term. May 1, 1889.)

EXECUTORS-ACCOUNTING.

shall be appointed to examine claims against es1. R. L. Vt. § 2115, provides that commissioners tates of decedents.. By section 2117 they are to decide claims in favor of or against executors and administrators. Under sections 2123, 2124, they are to report to the court, after giving notice of any disallowances. Section 2125 declares that all claims not presented to the commissioners shall be forever barred. Section 2277 provides for appeals which right is also given by a general provision to by executors from decisions of the commissioners, all parties. Held, that the provisions include the claims of an executor against the estate he represents, and, unless presented and allowed by the creditors, they are barred, and cannot be presented commissioners in like manner as those of other by the executor to the probate court on filing his final account.

2. Where an executor holds money of an estate that there were banks which would have allowed for several years, and the commissioner reports him interest on the money during that time, a judgment of the county court charging him with interest will be sustained.

TAFT, J.,'dissenting.

Exceptions from Rutland county court; evident from an examination of that case, and NICHOLSON, Judge.

also the case to which the note is appended, both of which were cases in equity. In Adams v. Adams, supra, the bill, so far as it related to this question, charged that one of the defendants, who was heir and administrator, “in the absence of the other heirs," obtained a large allowance by the commissioners, "which was wholly fraudulent." The court found from the answer and proofs that the charge was true, and held that, having been so obtained, while the administrator represented both himself and the estate, the al

Barney Riley, plaintiff, was the executor of the estate of Patrick McInlear, and had certain personal claims against that estate, which he did not present to the commissioners, duly appointed by the probate court to adjust claims on the estate, but presented them instead to the probate court on the final settlement of his executor's account. The court refused to entertain them, but allowed the remainder of his account. From this decision of the probate court plaintiff ap-lowance was not legally binding upon the espealed to the county court. The county court allowed his account as it had been allowed by the probate court. Exceptions by plaintiff. F. M. Butler, for plaintiff. J. C. Baker, for defendant.

tate and other heirs; and referred the matter, with other matters, to a master to ascertain the amount that should be allowed him, if anything, on those claims. The estate, of which the defendant Hiram had been administrator and to which he was also heir, Ross, J. 1. The plaintiff is the executor of had been closed, and the bill, brought by the the will of the testate, Patrick McInlear. He other heirs, was to adjust this and various held certain claims against the estate of which other matters, wherein it was alleged that he is the executor. Commissioners were duly the defendant, as administrator, had deappointed, and in all things proceeded as re- frauded them. The extreme length to which quired by the statute in the allowance of the decision goes is that the heirs of an esclaims against the estate. The plaintiff did tate are not bound in equity by an allowance not present his claims against the estate to of claims by the commissioners in favor of the commissioners for allowance, but, in- an administrator against the estate, procured stead, after the commission was closed, pre- by fraud, without the knowledge of the other sented them in his administration account to heirs, and upon the ground that he was repthe probate court for allowance. The probate resenting both himself and the estate in such court settled his proper administration ac- secret allowance. In French v. Winsor, sucount acceptably, but refused to entertain or pra, the orators were administrators of an esallow to him his private claims against the tate which was still in the process of settleestate, because they had not been presented ment in the probate court, and, fearing they to nor allowed by the commissioners. The might not obtain allowance in the settlement plaintiff appealed from this refusal of the of their administration account for the payprobate court, and contends that it was op- ment of some claims against the estate made tional with him whether to present his pri- by them, they brought the bill to obtain aid vate claims to the commissioners for allow-in that respect from the court of chancery. ance, or to present them to the probate court The bill was demurred to. The most that is in his administration account for allowance. decided is that from the facts in the bill, adSo far as we are aware, this is the first time mitted by the demurrer, this court could not this precise question has been before this tell whether the orators had not a full remedy court for consideration. The plaintiff relies, in the probate court, but, for fear they might to support this contention, mainly upon the not have full relief, ordered the bill to be note by Judge ISAAC F. REDFIELD to French held until the proceedings in the probate court v. Winsor, 24 Vt. 402, which reads: It reached that point at which it could be dewould seem that one who is administrator of termined whether they equitably needed the an estate against which he has claims may aid of the court of chancery. In the opinion bring his claims against the estate on his final it is said: "The amount paid by the orator accounting in the probate court, or present as administrator, which was really due from them to the commissioners, at his election; the estate, but not allowed by the commissince it has been decided in Adams v. Adams, sioners, having never been presented before 22 Vt. 50, that an allowance of such claims them, is the only part of the plaintiff's claim by commissioners is not in the nature of a which seems to afford any great difficulty, valid judgment, the claimant also represent- even upon his own showing. * ** But ing the estate. Probably the more conven- in regard to the payments made by the adient practice is to have such claims allowed ministrator, of debts not allowed by the comby the commissioners, and nothing more was missioners, his right to ask an allowance intended to be decided here upon that point must, we should suppose, depend very much than has already been decided in the case re- upon the state of facts in the particular case ferred to." It is to be observed that while the or cases. If the claim had been disallowed learned judge intimates that, in his opinion, by the commissioners, there could be no questhe administrator has such an election as the tion whatever that the administrator who legal result of the decision of Adams v. should presume to pay it could not charge it, Adams, he is careful to remark that no deci- at least if done after the right of appeal had sion of that kind has been made. This is very lapsed. So, too, if the claim had become

clearly and absolutely barred, by not being | against the estate he represents which has presented to the commissioners, so that there been disallowed by the commissioners. By remained to the claimant no further right to section 2149 a disputed claim in favor of such petition the probate court to open the com- executor and administrator may be referred mission for allowing claims, if such a state by the court, on an agreement in writing of things ever exists, until after the final set- signed by him and the heirs, and, if the estlement and distribution of the estate, the ad- tate is insolvent, by the creditors. ministrator should not be allowed any discretion; and we do not intend to say that the administrator can in any case be allowed to charge for payment of claims not preferred ones, when not allowed by the commissioners."

The provisions of the statute include the claims in favor of an administrator or executor against the estate he represents as fully as the claims of other creditors, and, in terms, require them to be presented to and allowed by commissioners, or they become barred, as It is thus seen that the question under con- much as do the claims of other creditors. sideration was the allowance to an adminis- Besides, there are special provisions for an trator of claims justly due from the intestate appeal by creditors and heirs when the adwhich had been paid by the administrator be- | ministrator or executor declines, as he would fore they had become barred, but which be likely to, in the case of an allowance in when paid had not been presented to and al- his favor, and for an appeal by him from a lowed by the commissioners. It did not touch disallowance of his private claims. From upon the allowance by the probate court to these provisions creditors and heirs, and an administrator, in settlement of his admin- others interested in the estate, naturally look istration account, private claims due him to the report of the commissioners for the from the intestate, which had never been pre-claims against the estate, and not to the setsented to nor allowed by the commissioners. tlement of the administrator's or executor's Hence neither of the cases relied upon au- account. There is not a single provision of thorizes the qualified statement by the learned the statute that looks towards the settlement judge in the note appended to the last-named by the probate court of his private claims case, that the administrator had an election against the estate in the settlement of his adto present his private claims against the es- ministrator's account. Sections 2094 to 2106, tate to the probate court, in the settlement of inclusive, which relate to such settlement, his administration account, for allowance, speak of it only as his account of administraor to present them to the commissioners. tion, and specify what shall be charged No such question was considered or decided against him. He has no right to pay any in either case. Hence for its solution we claims allowed by the commissioners, except must turn to the provisions of the statute in at his peril, until ordered to do so by the regard to the allowance of such claims. It probate court, and after that court has found is to be observed that no provision of the funds in his hands, by the settlement of his statute can be found that makes any differ- account, with which to make such payment. ence between the allowance of the claims of The notice required to be given only relates the administrator or executor against the es- to the settlement of his account of administate on which he is administrator and the tration. No creditor, heir, legatee, or deviallowance of the claims of any other credit-see would obtain the least intimation from or. By section 2115, R. L., commissioners the notice required to be given by the statare required to be appointed "to receive, ex-ute that his private claims against the estate amine, and adjust the claims and demands of were to be considered by the court. all persons against the deceased;" and by section 2117 they are to try and decide upon the claims which survive by law against or in favor of executors or administrators, except claims for the possession of or title to real estate. Section 2123 requires them to report their doings to the court, after the time limited for the presentation of claims, with a list of claims and offsets presented, their allowances and disallowances; and section 2124 requires them to give notice at the time of filing their report to claimants of disallowances above $20. Section 2125 declares that all claims not presented to commission- The plaintiff's counsel contend that the ers for allowance shall be forever barred, and statutes cannot receive construction accordshall not be pleaded in offset. There is a ing to their plain terms, and that it could general provision allowing an appeal from not have been the legislative intent that the allowances or disallowances, and then special executor or administrator should present his provisions allowing creditors, devisees, lega- personal claims to the commissioners for altees, or heirs to appeal, if the executor or ad- lowance, because their allowance, approved ministrator declines to do so; and section by the probate court, would not be a valid 2277 provides for and regulates an appeal by and binding judgment, on the ground that an executor or administrator who has a claim|the same person would practically be both

The pro

visions of the statute relating to the settlement of estates are full, and furnish a complete system of themselves, and leave no room to invoke the aid of the common law. The probate court is of special and limited jurisdiction, and derives all its authority from the statute. Hendrick v. Cleaveland, 2 Vt. 329; Brown v. Sumner's Estate, 31 Vt. 673. It might be wiser, as is done by statute in New Hampshire, to leave the settlement of this class of claims to the probate court, without the intervention of commissioners, but it has not been done by the statutes of this state.

plaintiff and defendant. But such judgment, | tion to the provision that in appeals from we think, would be inter partes. An exec- the decision of commissioners the county utor or administrator does not present his court may, on motion, order the claimant to own claim in his official capacity, but as an give security for costs to the executor or adindividual. Personally, not officially, he be- ministrator of the estate against which the comes plaintiff. The claim is against the claim is presented, (section 2274 R. L.,) so estate, and that is the defendant. The exec- that, in case the executor or administrator utor or administrator is the general repre- was the claimant, he would, under the order, sentative of the estate, and his duty is to act be giving security to himself. It is suffifor it. Like any other agent, he cannot act cient answer if an executor or administrator in its behalf when his personal interest | should ever appeal from an allowance or discomes in antagonism with his official duty. allowance, when the estate was not repreThere seems to be an oversight in legislation sented except by himself, that the provision in not providing for some one to represent is not a requirement, but a discretionary the estate in such a case, or for notice to power conferred, which it would be absurd other creditors, and the heirs, legatees, and to exercise under such circumstances. devisees, of the presentation of such claims Another alleged inconsistency resting in to commissioners. But this oversight does the decisions of this court, upon the connot destroy the mutuality of the judgment, struction of the statute urged, is that, in ap nor render it invalid, certainly so far as it peals from commissioners, the judgment of operates upon the rights of the executor or the appellate court is several,-for damages, administrator. The extent of the decision in which is certified to the probate court, and Adams v. Adams, supra, is that the other for costs against the executor or administracreditors, heirs, or devisees, may have relief tor personally. O'Hear v. Skeeles, 22 Vt. from an allowance in favor of an executor or 152. So that, in case where the executor or administrator, when he has taken advantage | administrator should represent both himself of the fact that no one represents the estate, and the estate, the judgment might be in his fraudulently to procure the allowance of an favor as an individual, and against him as unjust claim in his favor. But the estate the representative of the estate, or vice versa. may not be unrepresented in reference to the Such judgments could be effectively adjusted allowance of such claims by the commission- in the probate court in settling the estate. ers. The provisions for appeal from the de- By another provision of the statute, on an cision of commissioners by a creditor, devisee, appeal by a creditor, devisee, legatee, or heir legatee, or heir, when the executor or ad- from the allowance of a claim, the proceedministrator declines to appeal, (section 2275, ings "shall be had in the name of the exeR. L.,) applies to the allowance in favor of cutor or administrator." Section 2275, R. L. an executor or administrator of his personal There may be other provisions which, conclaim as well as other allowances. This sidered alone, would tend to show that it was court said in the tax case of Brush v. Buker, not the legislative intent that executors and 56 Vt. 147, that the right of appeal implies administrators should present their personal the right to be heard by the tribunal from claims to commissioners for allowance. whose judgment the appeal lies. Therefore the other hand, as clearly shown, there are an estate is not left by the statute without explicit provisions to the contrary, and no the right of representation by those inter-intimation anywhere that an executor or adested in the estate before the commissioners ministrator may go with his personal claim and probate court against the personal claim in the first instance to the probate court. of an executor or administrator. The decision of the commissioners does not, in contemplation of law, become an adjudication until their report has been returned to and accepted by the probate court. Until such record, the probate court has judicial discretion to inquire into the genuineness, identity, and regularity of the report, and may accept, reject, or recommit it. Hodges v. Thacher, 23 Vt. 455; Adarene v. Marlow's Estate, 33 Vt. 558. Hence, if the report shows a personal claim allowed in favor of the executor or administrator, the probate court, of its own motion, could inquire if the estate was represented otherwise than by such executor or administrator in regard to its allowance, and, if necessary, recommit the report, to give those who have the right of appeal an opportunity to be heard.

On

We therefore think that the true view to be taken in regard to the claimed inconsistent provisions is that they were framed for ordinary appeals, and by oversight failed to be expressed so as to apply to the exceptional case where the executor or administrator is the claimant, and cannot properly be regarded as a modification of, or as constituting an exception to, those sections of the law which expressly say that all claims legally allowable shall be presented to the commissioners or be barred. Owing to the difference in the statutes, the cases cited from other states have but little, if any, application.

2. The executor charged himself in his administration account with the sum of $739.96, received from the sale of personal property, but did not charge himself with any interest, although he had held it in his The plaintiff's counsel further urge that hands since 1881, claiming that he had reseveral provisions of the statute are so in-ceived none, and that he did not place the consistent with the above construction that money so as to receive interest, as he thought it ought not to prevail. He calls our atten- he might be called upon at any time to settle