and avowed partisan co-operation that has hitherto constituted the voter's credential. Apart, however, from these considerations, the matter, as an incident of police regulation, is clearly within the legislative province, as will appear when the subject of its police power is considered.

Under this branch of the relator's argument, a number of provisions are criticised upon the ground that they tend to constrain the otherwise untrammeled conduct of citizens when seeking to give expression to their political preferences, which is said to be one of their natural rights. Assuming that specific instances of this have been shown, no constitutional question is involved, for the reason that it is of the very essence of the exercise by the Legislature of its police pow ers that citizens may, for the public good (which is what the word "police" means in this context), be constrained in their conduct, even with respect to matters in themselves natural and otherwise right. Limitations of strictly natural rights and reasonable regulation of general constitutional rights are not incompatible with the valid exercise of the police power.

These considerations leave practically untouched the main objection urged under this branch of the relator's argument, which is (1 now quote from the brief) "that any statute prohibiting a citizen from participation in the selection of those who are to frame the platform of the political party to which he truly gives, however, temporarily, his allegiance, is in violation of those protecting and preserving provisions of his state Constitution." "The right to vote at a primary election cannot be conditioned upon a surrender of the right to deliberate, to listen, and to argue until general election day." "The right of citizens to form political parties, and to make rules that shall govern procedure within those parties, is one that cannot be taken from them by the Legislature." "The right of citizens to form political parties, to adopt principles, and to nominate candidates is beyond legislative prohibition."

From these extracts taken from different parts of the brief of counsel for the relator, it will be seen that his argument is directed against the power of the Legislature of this state to take from its citizens the right of forming political parties, or to form such parties for them; to prescribe the terms of membersnip in such parties, or to make rules governing such members; to determine who may participate in the counsels of a political party, or what shall be the nature of such qualification. This argument, therefore, attacks the entire frame of the statute, as counsel conceives it, and especially those features of it that make party affiliation a condition of the right to participate in party counsels, and establish as a test of such right the making of an affidavit as to actual cooperation in the immediate past, and a present intention so to co-operate in the imme

diate future. Against a statute that thus essayed to create political parties, or to initiate the system of which they are an essential part, the argument that has been made would possess a force that it does not have when applied to the statute now before us, in which nothing of this sort is attempted. The distinction that has apparently been lost sight of, while one of fact, is of vital significance upon the question of constitutional limitation. Every exercise of police power involves, of necessity, the determination by the lawmaker of some fact quite apart from the exercise of any legislative discretion concerning it. The contrary is not conceivable. Thus it is not conceivable that an act to protect passengers upon railways could have been enacted without the determination by the Legislature that railways existed and that passengers were carried by them-whether such passengers required protection, and, if so, of what sort, would be the discretionary element in such legislation. Similarly, the act upon our statute book to protect worshippers at camp meetings could not have been enacted without a determination of the fact of the existence of such associations, the objects of those so associated, and the further fact that such objects included immunity. from interference by persons having a hostile or even an alien purpose. This elemental proposition is stated only to emphasize the difference between such determinations by the Legislature of conditions of things already in being and enactments by the Legislature that bring into existence conditions that previously had not, and but for such legislation would not have, any existence. The distinction is vital in its bearing upon the argument before us, since it marks the distance that separates an act passed for the regulation of conduct upon which citizens had already embarked from the creation by the Legislature of institutions that compel citizens to a course of conduct upon which they had not voluntarily entered. Thus, to take the previous illustration, there is a wide difference, in a constitutional sense, between a statute that recognizes the existence and objects of camp meetings, and affords protection to those who adopt that form of worship, and an act that instituted such gatherings, and compelled persons to associate for the purposes prescribed by such act. Repeated illustration cannot make this distinction more plain, or add to the force of its application to the present argument. If in place of camp meetings we read political parties, and if for the avowed object of such religious gatherings we substitute the known purposes of such political associations, we shall have, in its simplest form, the domain of fact which the legislation in question must have recognized as subsisting before exercising over it the regulative and protective features of the statute under review. Thys the Legislature must have recognized as a fact the existence of political parties of vary

(75 Vt. 392)

INGRAM v. INGRAM.

(Supreme Court of Vermont. Washington. Aug. 5, 1903.)

HUSBAND AND WIFE-NONSUPPORT-SUIT BY WIFE-PETITION - SUFFICIENCY -EVIDENCE -FINDING OF FACT IN FORMER SUIT-ADMISSIBILITY.

1. Under V. S. 2701, entitling a wife to sue for support in case the husband fails without just cause to furnish suitable support, a petition by a wife which unnecessarily alleges that petitioner is living apart from her husband is not defective because failing to further allege that such living apart was for justifiable cause, specifying the same.

2. In a suit by a wife for support, under V. S. 2701, authorizing such a suit in case the husband without just cause fails to furnish suitable support, a finding of facts in a prior suit for divorce, brought by the husband, showing that the wife was not guilty of willful desertion in living apart from the husband, was immaterial.

Exceptions from Washington County Court; Haselton, Judge.

Petition for support by Jessie L. Ingram against James Ingram, her husband. Judgment for petitioner, and defendant brings exceptions. Reversed.

Argued before TYLER, MUNSON, START, WATSON, and STAFFORD, JJ.

Frank L. Martin, for petitioner. John W. Gordon, for defendant.

TYLER, J. The petition alleges that the parties were married in Scotland in the year 1874; that the petitionee afterwards supported the petitioner in Scotland and in Barre, this state, until June, 1886, since which time he has, without just cause, failed to support her, though he has had ample means therefor; that she has no means of her own; that in July, 1900, when the petitioner was living in Scotland, the petitionee brought a petition for divorce against her returnable to the September term, 1900, of the Washington county court, for the cause of desertion; that it was duly served upon her; that certain orders were made in respect to temporary alimony; that the petition was heard at the March term, 1901, and dismissed. The petitioner further alleges that her husband deserted her; that she is living apart from him; and prays that he may be decreed to furnish her suitable support.

1. Under the first clause of V. S. 2701, it was only necessary to allege that the husband had failed, without just cause, to furnish suitable support for his wife. It was not necessary to allege or prove that she was living apart from him. But the petitionee contends that, as the petition alleges under the third clause of the section that the petitioner was living apart from him, it should have further alleged that it was for justifiable cause, and specified the cause. But we think the petition was sufficient.

It was

within the discretionary power of the court below to have ordered a specification upon

motion therefor before the trial commenced. But such motion was not made. The degree of strictness required in common-law pleadings is not necessary in proceedings under this section or in divorce cases. In Blain v. Blain, 45 Vt. 538, the court said: "Petitions for divorce are addressed to the judicial discretion of the court; and courts are justified, in some form, in reaching and hearing the proof of every essential fact touching the character of such relation. The manner of pleading is measurably addressed to the discretion of the court."

2. The petition being sufficient, it was for the trial court to decide, upon the evidence, whether the wife was entitled to an order that her husband should support her while living apart from him. The petitioner, before resting her case, offered a finding of facts by the trial court in the divorce case, upon which its judgment was based, for the purpose of showing the cause of the parties living apart from each other, and under the petitionce's exception the finding and the docket entries in that case, with the other evidence offered, were admitted. Were they legal evidence? This is the rule, as stated in So. Pac. R. R. Co. v. U. S., 18 Sup. Ct. 18, 42 L. Ed. 355: "The general principle announced in numerous cases is that a right, question, or fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery cannot be disputed in a subsequent suit between the same parties or their privies; and, even if the second suit is for a different cause of action, the right, question, or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified." It was decided in Cromwell v. Sac County, 24 L. Ed. 195, that, "where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was based." In Wahle v. Wahle, 71 Ill. 510, the husband brought his petition for divorce upon the ground that his wife had, without just cause, deserted him for two years. She answered, admitting that she had not lived with him during that time, and justified her conduct by his cruelty to her. Later, she filed her cross-bill charging cruelty and adultery, and praying for separate maintenance. Later still she filed an amended answer charging adultery. The petition for divorce was tried, and the petitioner was defeated. Then the wife's cross-bill was tried and dismissed. The wife insisted that the verdict in the first suit was a judicial determination of the facts alleged in her cross-bill, and justified her living apart. The question was whether the record of a judgment finding the issues against a complainant, who sought a divorce on the ground of desertion, was conclusive

evidence in favor of the defendant's right to recover maintenance. Did such a record conclusively prove that the wife was living apart from her husband without her fault? The court said it could not be pretended that the object of the bills and the relief sought was in each case the same; that if the issues made in the cross-bill had been submitted to the jury with the issues made in the original bill, and the verdict had been as it was, there would have been force in the wife's claim. But it was not done, and the cases had been disposed of as if they had no connection with each other. In that case it was decided that, "to entitle the wife to a separate maintenance, she must show that she lived separate and apart from her husband without her fault; if she voluntarily abandons him, or if she is compelled to abandon him on account of her adultery or her wicked conduct, she will not be entitled to a separate maintenance; that a judgment or decree is not evidence upon a matter that is only collaterally drawn in question, nor to any matter incidentally cognizable

*

Freeman on Judgments, § 258; Lea v. Lea, 99 Mass. 493, 96 Am. Dec. 772; Jackson v. Wood, 3 Wend. 27; Broom's Legal Maxims, 231.

This case shows that the fact of the adjudication in the divorce suit was in evidence in this trial without objection. The finding of facts was, in substance, that after the marriage the parties lived in Scotland till 1882, when the husband came to Barre; that the wife came in 1885, and lived with him about a year; that they did not live harmoniously, for the reason that the wife thought her husband unduly intimate with another woman; that they had unpleasant talks, and the wife spoke of leaving, and the husband said she had better leave; that on one occasion he told her he would be happier if she would take her trunk and go home, and that he would not go out with her if she remained in Barre; that these talks resulted in her returning to Scotland with her husband's consent and pecuniary assistance; that he went to Boston with her and their daughter, and helped them in getting on board the boat; that the petitionee never requested the petitioner to return and live with him; that at one time, when she sought an interview with him, when he was in Scotland, he refused to see her, and that he has never wished to have her return.

The only issue in the former case was whether the wife was guilty of willful desertion; in this, the issues were whether the petitionee had, without just cause, failed to furnish suitable support for his wife, or had deserted her, or whether the petitioner was actually living apart from the petitionee for a justifiable cause. It is evident that the issues in the two suits were not dependent upon the same facts, so the former judgment was not conclusive of the petitioner's right to the order prayed for here. The adjudi

cated fact that the petitioner did not willfully desert her husband did not establish any allegation in her petition, nor consequently her right to a separate support. The issues here made must be decided upon a trial in the court below.

The "finding of facts" in the divorce suit was immaterial, and should have been excluded.

Judgment reversed, and cause remanded.

(75 Vt. 389)

DIETRICH v. HUTCHINSON et al. (Supreme Court of Vermont. Caledonia. Aug. 3, 1903.)

SECOND APPEAL-LAW OF THE CASE.

1. Where a cause has been remanded by the court on appeal, with leave to plaintiff to supply certain necessary facts omitted from his bill, but on subsequent appeal the court is no better informed as to such matters, the holding must be the same.

Appeal in Chancery, Caledonia County; Munson, Chancellor.

Bill by Christian Dietrich against Lydia Hutchinson, Chas. Hutchinson, and Edward H. Deavitt. From a decree sustaining defendants' demurrer to the amended bill, the orator appeals. Affirmed.

Argued before TYLER, START, WATSON, and HASELTON, JJ.

Fred C. Cleaveland and E. W. Smith, for orator. Edward H. Deavitt, for defendants.

START, J.

When this case was before this court and heard upon the report of the special master, as reported in 73 Vt. 134, 50 Atl. 810, 87 Am. St. Rep. 698, it was held that the mortgage executed by Lydia Hutchinson and her husband, and sought to be foreclosed, was void because the name of the husband was not inserted in the body of the mortgage deed as a grantor; that this could not be validated without statutory power therefor; that the transaction could not be treated as an equitable mortgage; that the defendants did not hold the premises in trust for the petitioner; that we could not well say, from the record, whether the necessary elements to make a case for rescission of the contract existed; and thereupon the case was remanded to the court of chancery, without directing a final decree against the petitioner, but leaving him at liberty to apply further if he should be so advised. After the cause was remanded to the court of chancery, the petitioner there attempted to amend his petition; but in doing so he brought no material fact upon the record that was not in the original petition or the report of the master, and considered by us on the former hearing. It does not appear why the name of the husband was not inserted in the body of the mortgage as a grantor. It may have been omitted by mistake, ignorance of the draftsman, fraud of Mrs. Hutchinson, or by the mutual agree

ment of the parties. We are not informed of the reason of the omission. It is still a matter of conjecture. We are no better informed, nor have we any other or different facts from those before us on the former hearing, when we considered that the necessary elements for a rescission of the contract were not before us, and left the petitioner at liberty to apply further if so advised. The facts now before us being the same as those considered by us when we held that, on the petitioner's showing, he was not entitled to the relief prayed for, the holding in this respect must be the same as it was then. Childs v. Millville Ins. Co., 56 Vt. 609; St. Johnsbury & Lake Champlain R. Co. v. Hunt, 59 Vt. 294, 7 Atl. 277; Stacy v. Vermont Central R. Co., 32 Vt. 551.

Decree affirmed and cause remanded.

LEASE-DESCRIPTION-UNCERTAINTY-CON

STRUCTION-PAROL EVIDENCE.

1. If the words employed to describe a tract of land leased, together with the situation of the parties, the subject-matter, and the circumstances, do not show what tract was intended, the lease will be void for uncertainty of description.

2. A lease granted the right to quarry stone from a parcel of land "beginning 80 rods easterly of the southwest part of my farm, and extending northerly to the north line of land owned by me, 80 rods east of the lake shore." Held, that the lease was void for uncertainty of the description of the point of beginning.

3. Where one takes a lease purporting to describe certain land, but which by mistake describes nothing, and takes possession of a portion of the tract sought to be described, claiming the whole tract, the doctrine of constructive possession cannot apply to premises not occupied by him.

4. Parol evidence is not admissible to aid an inherently insufficient description in a lease by showing what the parties intended to include therein.

Appeal in Chancery, Grand Isle County; Munson, Chancellor.

Suit by Elisha N. Goodsell'against the Rutland-Canadian Railroad Company and oth

continuing to take stone. The orator's right, if he has any, is dependent upon whether effect can be given to a lease from Phelps to him, wherein it is attempted to grant a right to quarry stone by the use of the following language: "The exclusive right of quarrying and taking away stone from a piece or parcel of land situate as follows; to wit, in the town of South Hero, Vt., beginning eighty rods easterly of the southwest part of my [meaning said Phelps'] farm, and extending northerly to the north line of land owned by me eighty rods east of the lake shore." From this description of the premises it is evident that the lessor intended to grant a right to quarry stone from some particular part or parcel of his farm, and that the lessee expected that he was acquiring such right; but the description of the place from which a right to quarry stone was intended to be granted is so indefinite that the place the parties had in mind cannot be ascertained, and for this reason the lease is inoperative as against the defendants. There is nothing in the language used, when read in the light of the situation of the parties, the subject-matter of the contract, and the surrounding circumstances, that enables us to locate the place on the farm from which a right to quarry stone was intended to be granted. The language of the grant, when read by itself or in the light of the situation of the parties, the subject-matter of the contract, and surrounding circumstances, will as well apply to a piece or parcel of the farm west of the east quarry as the point where the east quarry is situated, and apparently as well effectuate the purpose of the grant. The description of the piece or parcel of land sought to be carved out of the lessor's farm, and from which a right to quarry stone was attempted to be granted, in effect calls for a survey beginning at some undeterminable point in the south part of the farm, and extending northerly to the north line of the farm, 80 rods from the lake. The place of beginning is not on the southwest part of the farm, but 80 rods easterly of that part of the farm; nor is the place of ending at the lake, but 80 rods east of that point, and at the end of the line extending northerly from the place of commencement to the north line of the farm. The phrase "southwest part of my farm," neither from its terms nor when read in connection with the location and boundaries of the farm and the surrounding circumstances, fixes any point as being intended by these words. The southwest part of the farm may properly be described as an area of land extending half way from the southwest corner of the farm to its north line and easterly from the west line more than 80 rods, every foot of which may be said to be in the southwest part of the farm. This area is a part of the farm, but not a point on the farm. It includes within it many points, but no one can tell from the lease, the situation of the parties, the purpose