nency. How much, of course, is a matter, as counsel have suggested, of more or less conjecture, a matter of judgment. In addition to that, there is a curvature of the spine, which testimony tended to show was caused by this accident. . . Here is a young man, twenty-six years old, who, if he lives out his allotted time, is going to be deprived of an earning power that he would otherwise have had, which, as argued to the jury, in dollars and cents, if you apply that test to it, amounts up into the thousands. That loss of ability to earn was a factor that entered into the plaintiff's damages is, of course, beyond dispute. The question before this court is not how we should have exercised our discretion if we had been in place of the trial court, but it is for us to say whether or not it appears that the trial court withheld or abused its discretion. It does not appear that it did either, and the exception to the overruling of the motion to set aside the verdict avails nothing. All the exceptions relied on in argument having been considered, the judgment is affirmed. As to Who is a Fellow-servant and Who a Vice-principal, see the note to Mast v. Kern, 75 Am. St. Rep. 584. A railroad section foreman is not a fellow-servant with the crew running a mixed freight and passenger train: Mobile etc. R. R. Co. v. Hicks, 91 Miss. 273, 124 Am. St. Rep. 679. Where the Negligence of a Master and That of a Fellow-servant together produces injury to an employé, the master is liable therefor: Fuller v. Tremont Lumber Co., 114 La. 266, 108 Am. St. Rep. 348; Siegel-Cooper & Co. v. Treka, 218 Ill. 559, 109 Am. St. Rep. 302; Merrill v. Oregon Short Line R. R. Co., 29 Utah, 264, 110 Am. St. Rep. 695; Haskell & Barker Car Co. v. Przezdziankowski, 170 Ind. 1, 127 Am. St. Rep. 352. A Railroad Company Owes the Duty to Employés operating its trains to use reasonable care and diligence to provide and maintain a safe track. This duty is nonassignable: Vickers v. Kanawha etc. R. R. Co., 64 W. Va. 474, 131 Am. St. Rep. 929; Fuller v. Tremont Lumber Co., 114 La. 266, 108 Am. St. Rep. 348; Rogers v. Cleveland etc. Ry. Co., 211 Ill. 126, 103 Am. St. Rep. 185. MORGAN v. MORGAN. [82 Vt. 243, 73 Atl. 24.] EQUITY.-The Findings of a Chancellor Stand, as regards their effect, the same as those of a special master, and cannot be set aside if there is evidence tending to support them. (p. 1007.) DEEDS Delivery.-The Fact That a Deed is on Record is prima facie evidence of delivery. (p. 1007.) DEEDS Delivery.-The Mere Fact That a Deed has been Recorded, even if done by the grantor's direction, does not of itself constitute a delivery. (p. 1007.) DEEDS--Delivery by Recorder to Grantee.-Where a town clerk receives a deed from the grantor with instructions to file it but to delay the recording, the subsequent recording of the deed and its delivery by the clerk to the grantee at her direction do not constitute a delivery. (p. 1008.) O. M. Barber and Batchelder & Bates, for the orator. C. H. Mason and W. B. Sheldon, for the defendant. 244 MUNSON, J. On the nineteenth day of October, 1900, the orator executed to his sister Harriet a deed of real estate in Bennington, and three days later he handed it to the town clerk with instructions to file it but delay the recording. This was the only instruction given the town clerk by the orator. Sometime after this the grantee directed the town clerk to record the deed, and he thereupon recorded it and delivered it to the grantee. The orator afterward called for the deed, and then learned what had been done regarding it. The chancellor does not say in terms that Harriet acted without the orator's authority, but his language fairly implies that she did, and we think it should be so construed. The defendant moved to have the findings set aside as not warranted or supported by the evidence. The findings of a chancellor stand the same as those of a special master, as regards their effect; and they cannot be set aside if there was evidence tending to support them. The only question that can possibly be made under this motion regarding the findings above stated is with reference to the instructions. The town clerk was called by the defendant, and testified on direct examination that the orator's instructions were that the deed be filed for record, but that the actual work of recording be delayed; and on cross-examination he testified that he had a place where he put papers that were not to be recorded until further directions were given, which he called the "slow record" file; that he might just minute the filing of these papers in lead pencil, or perhaps not file them; that papers in this file were sometimes taken away without anything further being done with them; and that he put the orator's deed in this file. This was clearly evidence tending to support the finding regarding the instructions. The fact that a deed is on record is prima facie evidence of delivery: Walsh's Admx. v. Vermont Mut. Ins. Co., 54 Vt. 351. But the 245 mere fact that the deed has been recorded, even if done by the grantor's direction, does not of itself constitute a delivery: Fair Haven Marble Co. v. Owens, 69 Vt. 246, 37 Atl. 749. There was no delivery here unless a delivery was effected by means of the recording and the delivery of the recorded deed to the grantee by the town clerk. But the delivery of the deed by the town clerk could have no effect unless he was authorized to record it. The town clerk received the deed from the grantor with instructions to file it but delay the recording. This must be construed as a direction to postpone the recording until further instructions from the grantor. It cannot have meant that the town clerk was to delay the recording for an indefinite period, that was to be ended, if at all, on some impulse of his own. So the deed was held by the town clerk to be filed but not recorded, and the placing it upon record without further instructions from the grantor was of no effect: Blair v. Ritchie, 72 Vt. 311, 47 Atl. 1074. It follows that the grantee's possession of the deed was unauthorized. It is not necessary to inquire whether the filing of exceptions to the chancellor's findings was necessary to entitle the defendant to stand on his objections to the evidence, nor whether Mr. O'Brien was a competent witness to what the orator and his sister said in Mr. Baker's office in connection with the preparation and execution of the deed; for it is clear that Mr. O'Brien's testimony had no bearing upon the transaction between the orator and the town clerk, but only upon issues made immaterial by our holding that that transaction did not constitute a delivery. Decree affirmed and cause remanded. What Constitutes a Delivery of a Deed is the subject of a note to Brown v. Westerfield, 53 Am. St. Rep. 537. The delivery of a deed to a recorder for registry is not a delivery to the grantee: Cravens v. Rossiter, 116 Mo. 338, 38 Am. St. Rep. 606. See, however, Prignon v. Daussat, 4 Wash. 199, 31 Am. St. Rep. 914. But recording a deed with intent and for the purpose of passing title to the grantee may constitute a sufficient delivery: Holmes v. McDonald, 119 Mich. 563, 75 Am. St. Rep. 430; Fryer v. Fryer, 77 Neb. 298, 124 Am. St. Rep. 850. STATE v. ANDREWS. WITNESS-Privilege-Incriminating Testimony.-The privilege of a witness to decline to answer a question because the answer will tend to incriminate him is strictly personal; and although the court may properly instruct him as to his privilege, it cannot exclude material evidence for his protection unless he claims his privilege. (p. 1009.) Information for unlawfully furnishing intoxicating liquor. Verdict of guilty, and judgment thereon. Respondent excepted. Benjamin Gates, state's attorney, for the state. M. M. Gordon, for the respondent. 314 MUNSON, J. Mahoney, the state's witness, testified that the respondent took a bottle of whisky from his pocket and 315 gave him a drink. It was the theory of the defense, and the testimony of the respondent when he took the stand, that the respondent had no liquor with him, and that Mahoney was the one who produced the whisky and did the giving. Respondent's counsel undertook in his crossexamination of Mahoney to get some admissions in line with this theory, but the state's attorney objected to his inquiries on the ground that the witness was entitled to protection, and the court excluded the testimony as evidence that would tend to incriminate the witness. The witness made no claim of privilege. It is not necessary to inquire what the situation would have been if the witness had claimed the privilege of silence on the ground that his answers would tend to criminate him. The respondent was entitled to the benefit of the proposed examination if the witness was willing to answer, even if there were legal grounds on which the witness might have refused to answer. The privilege, if it existed, was strictly personal, and could be asserted by no one but the witness. The court might properly have instructed the witness as to his privilege, but could not exclude evidence material to the defense for the protection of the witness unless the witness claimed protection. No claim of privilege having been made by the witness, the exclusion of the testimony was error. Exceptions sustained, judgment and sentence reversed and cause remanded. The Privilege of a Witness as to Incriminating Testimony is the subject of a note to Evans v. O'Connor, 75 Am. St. Rep. 318-347. The right of a witness in a criminal trial to refuse to answer incriminating questions is a personal privilege which he may exercise or waive; if he chooses to answer them, neither he nor his counsel can legally object: State v. Shockley, 29 Utah, 25, 110 Am. St. Rep. 639; State v. Duncan, 78 Vt. 264, 112 Am. St. Rep. 922. According to Ex parte Gauss, 223 Mo. 277, 135 Am. St. Rep. 517, if a question is of such a description that an answer to it may or may not incriminate the witness, it rests with him to determine whether an answer will have that tendency; and if he says on oath that his answer will incriminate himself, the court can demand no other testimony of that fact nor compel him to answer. Am. St. Rep., Vol. 137-64 SOWLES v. MINOT. [82 Vt. 344, 73 Atl. 1025.] ESTOPPEL-Common Source of Title.-Parties claiming title from the same source cannot question the title of the common grantor. (p. 1018.) VENDOR AND VENDEE-Taking Possession by Grantee.— Grantees will be treated as having received possession with their deed, although there is no evidence that they ever went upon the land. (p. 1018.) MORTGAGE-Presumption of Payment.-There is no presumption that a mortgage note was paid at maturity. (p. 1018.) MORTGAGEE-Rights After Condition Broken.-The legal title to land passes to the mortgagee on condition broken, but he holds the title only for the purpose of security, and the burden is on him and those claiming in his right to show anything done in enlargement of the title. (p. 1018.) MORTGAGE—Presumption of Relinquishment by Mortgagor.— It is only in support of an actual possession by a mortgagee that the law will presume a conveyance or other relinquishment of the mortgagor's interest to him. (p. 1018.) MORTGAGE.—The Lapse of Fifteen Years without payment or other recognition, and without an enforcement of the security in any manner, will defeat a mortgagee's right. (p. 1018.) ABANDONMENT.-A Failure to Occupy Land for an indefinite time does not constitute abandonment of title or possession. (p. 1018.) WATER-POWER-Loss by Nonuser.-The right to a waterpower is not lost by nonuser. (p. 1018.) WATER-POWER-Nonuser and Abandonment.-There cannot be an abandonment of the right to a water-power without an intention to abandon. And an intention to abandon will not be inferred from mere nonuser or nonpayment of taxes. (p. 1018.) WATER-POWER-Grant of Privilege.-In a deed of land the words "with the privilege of taking and using from the flume now occupied by said Crane, or any other flume which may be there erected, sufficient water to carry two tub bellowses for a blast furnace," should be construed to be a measure of the power granted and not a restriction of its use. (p. 1019.) ADVERSE POSSESSION-Claim of Right.-The use of land with nothing to indicate that it is under a claim of right will not ripen into title by adverse possession. (p. 1019.) ADVERSE POSSESSION-Possession of Part of Tract.-The doctrine that the possession of any part of a tract of land will be considered a possession of the whole applies to possession under a deed which gives definite and certain boundaries. A description by a general reference to the lands of others does not meet this requirement. (pp. 1019, 1020.) BOUNDARIES.-Variations in the Description in a subsequent deed from the original description, such as a change from "northeasterly to northwesterly," may be immaterial. (p. 1020.) BOUNDARIES.-The Expression "Southerly or South," used in fixing a definite course so many degrees west, must be read south, unless the course is controlled by an ascertained monument. (p. 1020.) BOUNDARIES.-A Line Called in a Grant Fifty Feet More or Less must be taken to be of the length stated, unless the distance is controlled by other calls. (p. 1021.) |