$100 found to be her share under the will at this settlement, and she was thereby discharged from further liability as executrix to Alma E., for the same. This $100 was held by Nesbit, as such guardian, until about 1867, when he paid over the same to Harriet Mears, then Harriet Nesbit, for the oratrix, Alma E.; and she received the same, and retained it until her decease, knowing that it was the money which the guardian held in trust for the oratrix. She thus made herself trustee de son tort of the $100 for the oratrix, Alma E. While she held it as such constructive trustee, she was subject to the same rules and remedies as other trustees. Perry, Trusts, § 245. No reason is shown why she retained this money, instead of paying it over to the oratrix, who had then attained her majority, nor is any fact disclosed by the master's report which is any ground for excusing her from the payment of interest from the time it came into her bands. We think the orators, on the facts reported, have a valid, equitable claim against the estate of Harriet Pinney for this $100 and simple interest thereon from January 1, 1867. As the orators' bill is not framed with a view to a recovery on this ground, it will have to be amended for that purpose. The pro forma decree below is reversed pro forma, without costs to either party, and the cause is remanded, with mandate directing the court of chancery to enter a decree for the orators in accordance with the foregoing views, upon the proper amendment of the orators' bill for that purpose. The terms upon which such amendment may be made, and the question of costs below, are left with the chancellor.

CARPENTER v. WILLEY.
WILLEY v. CARPENTER.

(Supreme Court of Vermont. General Term. March 20, 1893.)

SLANDER-EVIDENCE-TAKING EXCEPTIONS-VERDICT-AFFIDAVIT OF JURORS TO IMPEACH.

1. In an action of slander for calling a married woman a whore, plaintif may show admissions by defendaut to different persons that he had made the statement complained of; also, that he had offered one of them $25, if witness knew anything against plaintiff that would help him.

2. Evidence of an attempt by defendant to prevent the attendance of a material witness was admissible, as tending to confirm the testimony of such witness.

3. A witness for plaintiff, who testified on his examination in chief merely as to an attempt to prevent the attendance of another witness, could not be asked on cross-examination as to plaintiff's reputation for chastity. 4. Evidence that plaintiff's husband had, on one occasion, made a like charge to that of defendant, offered as tending to show that plaintiff's anguish was occasioned by such charge, and not by the charge of defendant, was properly excluded where there was nothing to show that the husband's charge, if made, was the first in point of time.

5. Whether the treatment of plaintiff by her neighbors had been different since the alleged slander from what it was before could not be shown by a witness who had no apparent knowledge on the subject.

6. The fact that the slander was spoken

by defendant to one who had formerly been pastor of the church to which plaintiff and defendant both belonged, and in response to inquiries by such former pastor, did not make the speaking a privileged communication.

7. The fact that a jury are wrongly informed by the foreman that the only way to settle a dispute as to damages is to average the amounts which they severally consider proper, and that they are thus led to agree to larger damages than they otherwise would, cannot be shown by affidavits of the jurors to impeach the verdict.

8. In order to reserve an available exception to the exclusion of testimony, a proper question must be asked, and, on objection thereto, an offer must be made, stating the testimony which the witness will give if permitted to answer, and an exception taken to exclusion of the evidence, as shown by the question and offer.

Exceptions from Orange county court; Taft, Judge.

Action by Lizzie Carpenter against Ezra Willey for slander. Plea, the general issue. Trial by jury at the June term, Orange county, 1891, Taft, J., presiding. Verdict and judgment for plaintiff. fendant excepts. Affirmed.

De

The declaration alleged, and the evidence of the plaintiff tended to prove, that the defendant had slandered the plaintiff by calling her a whore, thereby charging her with the crime of adultery, she being a married woman. Upon the trial of the case the following exceptions were taken: (1) The plaintiff proposed to show by one Fay that the defendant, on other occasions than those mentioned in the declaration, had made similar statements to those for which the suit was brought, as tending to show malice. The question was allowed, under the exception of the defendant. Thereupon the witness gave the following answer, which was not responsive to the question: "He wanted to know if I knew anything about Mrs. Carpenter when she was a girl,-any thing against her? I said, 'No, sir.' He said he had called her a whore, and Nat Carpenter had sued him. He said, 'If you know anything about it that will help ine, it will put $25 into your pocket.'" (2) The plaintiff was permitted to show, subject to objection and exception, by one Ames, that the defendant had told the witness, in the spring of 1889, that he had called Mrs. Carpenter a whore, and that they had sued him. (3) One Lord was a material witness in the case to the speaking of the slanderous words. The plaintiff was permitted to show by Daniel Johnson that the defendant had requested Johnson to write Lord for the purpose of keeping him away from the trial of this case. (4) Upon the cross-examination of this witness, (Johnson,) he having testified merely to the above matters, the defendant proposed to ask him as to the reputation of Mrs. Carpenter with respect to chastity during the summer when the words were alleged to have been spoken. The plaintiff objected that this was not proper matter of cross-examination, and the court excluded it as a part of the cross-examination, but said to counsel for the defendant that they might ask the question in putting in the defense. To this action the defendant excepted. (5)

The defendant proposed to ask the plaintiff whether her husband did not charge her, in the public street, with the same offense which the defendant had alleged against her. This evidence was offered as tending to show that the mental anguish of the plaintiff was occasioned by the husband's charge, and not by the charge of the defendant. The evidence was excluded, and the defendant excepted. (6) George Johnson, a witness called by the defendant. was asked this question: "Did you hear, in the summer of 1888, some particular things,-some stories about her?" To this question the plaintiff objected. Thereapon counsel for the defendant said: "We ask this for the purpose of showing facts and circumstances brought to the knowledge of Mr. Willey, as bearing upon his honesty in making the statements he did." The court excluded the question, and the plaintiff excepted. The defendant testified that he had, prior to the time of the alleged slander, beard reports derogatory to the plaintiff's character as to chastity, and believed them. (7) The plaintiff's evidence tended to show that the slanderous words were spoken by the defendant in August, 1888, to one Lord, at a camp meeting in Hartford. Lord was then a clergyman, and had formerly been pastor of the church of which both the plaintiff and defendant were members; and the defendant claimed that what he said was in answer to an inquiry addressed to him by Lord in reference to the plaintiff and one Moulton; that it was spoken to Lord alone, and was privileged, under the circumstances, unless maliciously spoken. The court charged the jury that the words were not privileged for this reason, to which the defendant excepted.

The defendant brought a petition for a new trial, returnable to the May term of the Orange county supreme court, 1892, which was heard with the foregoing case. The damages awarded by the jury upon the trial of the original case were $679.17. The petitioner claimed, in his petition for a new trial, that the jury had arrived at this sum by averaging the amounts which they severally marked; that several of the jurors objected to the amount reached as a conclusion in this manner, and would not have consented to give damages in so large a sum had they not been advised and believed that this was the proper and lawful way of determining the amount of the damages. In support of this claim the petitioner produced the affidavits of certain jurymen, who deposed that the amount of the damages was determined in the manner set forth in the petition, and that they were informed, and acted under the belief, that this was the only lawful and proper manner in which the amount could be determined, after the jury had agreed that the defendant was liable in some damages, but were unable to agree as to the amount. In addition to the aforesaid affidavits of the jurors, the petitioner produced the affidavit of one Miller, the officer having the jury in charge, the material part of which was as follows: "At said term the case of Lizzie Carpenter vs. Ezra Willey, which was an

action of slander, was tried by jury, and when the jury in said cause retired to the jury room, after the case had been submitted to them, I had charge of them until they rendered their verdict into court. I was present all of the time while the jury were arriving at their verdict in said cause. After said jury had agreed that said Willey was guilty of the slander, the question of damages came up, and I think that the foreman of the jury suggested that each juryman should set or mark down such damages as each thought the plaintiff was entitled to recover, which they proceeded to do, and the whole was added together, and divided by twelve, and the quotient thus obtained was taken as their verdict for the damages. I know that there were sume objections made by some of the jurors to the large amount of damages, but it was claimed by some of them, and I believe by the foreman, that the way and manner in which they arrived at said damages was binding, and that there was no other way but to submit to the result."

Hunton & Stickney, for plaintiff. J. K. Darling and R. M. Harvey, for defendant.

THOMPSON, J. The testimony of the witnesses Fay and Ames was clearly admissible. It tended to prove an admission by the defendant of the speaking by him of the slanderous words charged in the declaration. Fay's testimony also tended to prove an attempt by the defendant to manufacture evidence with which to impeach the plaintiff's character. The fact that Fay's testimony was not responsive to the questions put to him did not render it inadmissible for that reasou. The witness Lord, introduced by the plaintiff, was a material witness, as his testimony tended to prove the speaking by the defendant of the slanderous words alleged in the declaration to have been spoken in August, 1888. The testimony of plaintiff's witnessDaniel Johnson tended to prove an attempt by the defendant to prevent the attendance of Lord as a witness in behalf of the plaintiff. Such an attempt is admissible against the party making it, as evidence tending to confirm the witness whose testimony is thus sought to be suppressed. Kirkaldie v. Paige, 17 Vt. 256. The inquiry of this witness, by the defendant, as to plaintiff's reputation for chas tity, did not relate to any matter inquired about in his examination in chief, and was no part of the legitimate and proper crossexamination. It related solely to matter of defense. It was wholly within the discretion of the trial court to permit the defendant to make the inquiry at that stage of the case, or to require him to defer it until he took the case in defense. Carey v. Hart, 63 Vt. 424, 21 Atl. Rep. 537; Greenl. Ev. §§ 445, 447. The defendant was distinctly informed by the presiding judge that he could make the inquiry when be came to put in his defense. The court properly excluded the evidence offered by the defendant to show that plaintiff's husband had charged her with the same things as those which were the gist of the defendant's slanderous utterances concerning her. The evidence offered did not tend

to prove that the alleged accusation of the husband, if ever made, was made prior to the speaking of the slanderous words by the defendant. The defendant put to his witness George Johnson this inquiry in regard to the plaintiff: "Did you hear, in the summer of 1888, some particular things -some stories about her?" The court excluded the question, to which ruling the defendant excepted. It is incumbent upon the party excepting to the rejection of evidence to have the record show that the ruling was prejudicial to him. The general rule is that, to reserve an available exception to the exclusion of the testimony of a witness, a proper question must be asked, and, upon objection thereto, an offer must be made, stating the testimony which the witness will give if permitted to answer the question, and an exception must be taken to the exclusion of the evidence as shown by the question and offer. Kern v. Bridwell, 119 Ind. 226, 21 N. E. Rep. 664; Dreher v. Fitchburg, 22 Wis. 675; Carpenter v. Corinth, 58 Vt. 214, 2 Atl. Rep. 170; Roach v. Caldbeck, 64 Vt. 593, 24 Atl. Rep. 989. In Carpenter v. Corinth, supra, exception was taken by the plaintiff to the permitting certain questions to be put to witnesses, but it did not appear what answers were given, if any. In disposing of the exception the court said: "It is in cumbent on the plaintiff to show that the answers were prejudicial to him. The court cannot presume that they were.

* * The questions were not evidence, and it was not error to allow them to be put." The rule above stated is simply the converse of this holding. To the same effect are Ainsworth v. Hutchins, 52 Vt. 556, and Smith v. Insurance Co., 60 Vt. 682, 15 Atl. Rep. 353. There was no offer, in connection with the ruling of the court excluding the question put to Johnson, to prove any fact by him material to any issue in the case, nor does the record show that he would have given any testimony in response to the question; hence the defendant's exception to the exclusion of this question cannot avail him. The defendant's witness Julia Udall having been asked by him the question whether the treatment of the plaintiff by her neighbors had been different since the alleged slander from what it was before, the court refused to permit the witness to answer the question, to which the defendant excepted. It does not appear that this witness had any knowledge upon that subject, nor was there any offer by the defendant to prove any fact by her bearing upon that question; hence, for the reason above stated, this exception cannot avail the defendant. The defendant introduced evidence tending to prove that, at the time of the speaking of the slanderous words by him, the reputation of the plaintiff as to chastity was bad, and that for a long time prior thereto it had been. It was competent for the plaintiff to meet this attack upon ber character by evidence showing that in this respect her reputation was good during the time in question. A fair construction of the exceptions shows that this is all the plaintiff was permitted to do in rebuttal, on this phase of the case. The fact that the slanderous words were

spoken by the defendant at a camp meeting, to one Lord, who had formerly been the pastor of the church of which the plaintiff and the defendant were members, and in answer to inquiries by Lord, does not make such speaking a privileged communi. cation. So far as appears, there was then no relation subsisting between Lord and the plaintiff, nor between him and the defendant, which entitled him, as a matter of public, social, or moral duty, to inquire into the character of the plaintiff, or which would protect the defendant in making the slanderous charges against her, although made without malice, and in the honest belief that they were true. The interview between Lord and the defendant was simply the casual meeting of two old acquaintances, during which they proceeded to discuss the reputation of the plaintiff for chastity. The case is barren of facts necessary to bring it within the doctrine of privileged communications, by a minister of the gospel or to him, as discussed and laid down in Shurtleff v. Stevens, 51 Vt. 501: 2 Greenl. Ev. § 421, note 1. Judgment affirmed.

Willey v. Carpenter was a petition for a new trial in the foregoing case, and was heard with it. The alleged ground for a new trial is that, after the case had been submitted to the jury, and they had retired to the jury room to consider it, they were misinformed by their foreman in respect to the law governing the manner in which they should arrive at their verdict, and that, in consequence of being thus misinformed, they returned a verdict for the plaintiff for much larger damages than they otherwise would have done. In support of his petition the defendant offered in evidence the affidavits of several of the jurors. This case does not disclose anything which makes it an exception to the general rule of law in this state, that affidavits of jurors as to what occurred in the jury room while they were considering the case will not be received as evidence to impeach or set aside their verdict. Sheldon v. Perkins, 37 Vt. 550; Tarbell v. Tarbell, 60 Vt. 494, 15 Atl. Rep. 104. While it is conceivable that a case might arise which would call for a relaxation of this rule, there is nothing in the case at bar that calls for a consideration of such a contingency. The only adinissible evidence offered in support of the petition is the affidavit of Miller, the officer who had charge of the jury. It fails to show that there was any agreement among the jurors that the damages should be ascertained or determined by any particular method, and which was followed by them in making up their verdict, or that any juror was misled by any statement of the foreman, or of any one else, in regard to the law which should govern their action in assessing damages. It is therefore to be presumed that they followed the law on that subject, as laid down by the presiding judge in his charge. The evidence failing to sustain the allegations of the peti tion, there is no occasion for us to discuss the law which would govern in such a case as is stated in the petition. Petition dismissed, with costs to the petitiones,

ATWOOD v. TOWN OF MT. HOLLY. (Supreme Court of Vermont. Rutland. March 21, 1893.) NOVATION.

Plaintiff, under a contract with defendant town, boarded its paupers for a year, defendant contracting with R. to furnish her supplies. Plaintiff was not a party to this contract, but acted on it. During the year defendant settled with her, and paid R. $26 in excess of plaintiff's indebtedness to R., expecting her to take it out in supplies. Thereafter she made purchases from R., and paid for them at the end of the year, refusing to accept the $26, alleging that defendant owed ber for boarding another pauper. Held, that the facts that she continued to make purchases from R., and that she declined to take the money solely because of the claim for another pauper's board, and the further fact that after bringing suit against defendant she accepted the $26, show that she was a party to the arrangement whereby money was left with R. for her, and that she accepted R. as her debtor instead of defendant.

Exceptions from Rutland county court; Ross, Chief Judge.

Assumpsit by Jennie Atwood against the town of Mt. Holly. There was a judgment for defendant, and plaintiff excepts. Affirmed.

Geo. E. Lawrence, for plaintiff. W. H. Lord and J. C. Baker, for defendant.

TYLER, J. The court below found that on March 11, 1889, the defendant, by its overseer of the poor, entered into a written contract with the plaintiff, by the terms of which the defendant was to pay her $1.50 each per week for boarding such paupers as the overseer should choose to send her to be boarded. An arrangement was then made between the defendant and Russell & Johnson, merchants in the town, by which they were authorized to furnish the plaintiff with supplies to the amount of the board of the paupers kept by her. It did not affirmatively appear that the plaintiff was a party to this arrangement, though from her subsequent dealings with that firm it might reasonably have been inferred that she had knowledge of and assented to it. The plaintiff boarded three paupers for the defendant during the following year, and another one for a short time. Nearly all the business pertaining to the contract was done through Russell & Johnson. The 1st of February, 1890, the overseer settled with the plaintiff, and gave Russell & Johnson a town order for an amount which was $26.17 in excess of what the plaintiff qwed the firm, which sum was left for her in their hands, they expecting that she would take up a part of it in supplies before the termination of the contract. She did make further pur chases of them, but at the end of the year paid them therefor, when the firm tendered her the $26.17, which she refused, for the reason that she claimed pay for keep. ing her husband that year as a pauper. She then brought this suit to recover the $26.17, and for her husband's support. The court below found that the defendant was not indebted to the plaintiff for boarding her husband, and only owed her the amount tendered. It does not appear in

the statement of facts that the order was given to Russell & Johnson by the request of the plaintiff, or with her consent, nor that she agreed to take the $26.17 in supplies from the store, but it is found that the money left with Russell & Johnson was the defendant's, and the facts that the plaintiff continued to make purchases at the store, and that she declined to take the amount when tendered her solely because of her other claim against the town, and that, after she brought her suit, she took the money, were circumstances tending to show that she was a party to the arrangement by which the money was left with the firm for her, and that she took the firm as her debtor in substitution and release of the defendant. The court below must have so found as questions of fact. This disposes of the main question for the determination of which this suit has been litigated,-whether the plaintiff's attorney had a lien on the money deposited for her. As there was nothing due from the defendant to the plaintiff when this suit was brought, there could have been no attorney's lien as against the defendant. Judgment affirmed.

YINGLING et al. v. MILLER et al. (Court of Appeals of Maryland. March 14, 1893.)

WILLS-CHARITABLE BEQUEST-UNCERTAINTY OF

BENEFICIARY.

1. A bequest to the trustees of a certain church, "in trust for the express use and benefit of the needy poor of said church," is void for uncertainty in the beneficiary.

2. Act 1888, c. 249, § 305a, which declares that no devise for any charitable uses shall be void by reason of any uncertainty with respect to the donees thereof, provided the will or codicil making the same shall also contain directions for the formation of a corporation to take the same, and within the period of 12 calendar months from the probate of such will or codicil a corporation shall be formed, in correspondence with such directions, capable and willing to receive and administer such devise, does not make an uncertain bequest valid, where the will makes no provision for the formation of a corporation, although the church in question was incorporated before the testator's death.

Appeal from circuit court, Carroll county. Bill by Margaret Yingling and Ephraim Yingling, her husband, against Henry H. Miller, Elias Myerly, Noah Shaffer, and Nimrod Armstrong, trustees of the German and English Evangelical Lutheran Congregation of Manchester, in Carrol county, for the construction of the will of Henry Tasto, deceased. A decree was rendered, from which the complainants appeal. Reversed.

Argued before ALVEY, C. J., and ROBINSON, BRYAN, McSHERRY, PAGE, BRISCOE, and FOWLER, JJ.

Jas. A. C. Bond, for appellants. Joseph M. Parke and Wm. H. Thomas, for appellees.

FOWLER, J. This appeal involves the construction of the will of the late Henry Tasto, of Carroll county, in this state, and