v. Amsden, 56 Vt. 201; In re Conditional Discharge of Convicts, 73 Vt. 414, 51 Atl. 10, 56 L. R. A. 658. It follows that the case at bar is unaffected by the act of 1888, and that the cases of Lamb v. Mason, Devereaux v. Fairbanks, and In re Worcester's Estate are controlling. It is held by the majority, however, that there is an inequality of equities, and consequently the rule of contri

the consent by the widow to the sale of the of, remains unchanged. If the Legislature real estate did not bar her of such right in intended that the act of amendment should and to the homestead as she took upon the apply during the lifetime of the owner of the decease of her husband; and, on the au- homestead as well as after his death, why thority of Lamb v. Mason and of Devereaux were not the provisions thereof made of genv. Fairbanks, it was further held that the eral application in this respect, instead of homestead was under the burden of bearing the restrictive one therein specified? Such its proportion of the mortgage debt. Thus intention, however, is negatived by the act by the decisions in these three cases the rule itself under the rule, often applied in the requiring ratable contribution by the home-interpretation of statutes, that the mention stead became the settled doctrine in this of one thing implies the exclusion of anothstate, and it has so remained without mod- er. Sherwin v. Bugbee, 16 Vt. 439; Hackett ification, except that its application is now somewhat limited by statutory provisions of more recent enactment, as follows: At its first session after the decision in the last of said cases was handed down, the Legislature, presumably with knowledge that such doctrine had been so established (State v. Rutland R. R. Co., 81 Vt. 508, 71 Atl. 197), enacted No. 74 of the Laws of 1888. By that act the statute, in respect to the levy of ex-bution does not apply. But an examination ecutions on real estate of which a homestead is a part, was amended by adding a provision that in making such levy only such portion of the mortgage as is in excess of the appraised value of the real estate, aside from the homestead, shall rest on the homestead. By the same act section 1906 of the Revised Laws, which reads thus, "If such homestead or lands therein are mortgaged by the joint deed of husband and wife, the joining of the wife in such mortgage shall have no other effect than to bar her claim to such homestead," was amended by adding at the end of said section the following words: "And if said mortgage includes lands other than the homestead and the owner of the homestead dies, the lands other than the homestead, included in said mortgage, shall be first sold by the executor or administrator and applied on the mortgage, and only the residue shall rest on the homestead unless the whole is ordered to be sold by the probate court, in which case the avails shall be apportioned in accordance with this act." The language of the amendatory act is too plain to be misunderstood. By that act the doctrine of contribution, as established by the three cases named, was limited in its application so as to require the parcel of land other than the homestead to be exhausted in the payment of the common mortgage before resort can be had to the homestead parcel (1) when the former is taken by an execution creditor of the homesteader; and (2) when the homesteader dies, and the homestead passes under the statute to his widow. These instances are expressly mentioned, and to that extent the matter of contribution is now controlled by the same statutory provisions. P. S. 2546, 2555. But the law applicable during the lifetime of the owner of the homestead, as between the homestead parcel and the residue of the mortgaged premises, the equity of redemption in the latter being owned by the homesteader's grantee without assump

of the question does not sustain this position. When the husband is the general owner of the real estate, the wife has only a contingent or inchoate right in the homestead. No part of the title is vested in her. Subject to such conditional interest in favor of the wife, the whole legal interest and title are in the husband. Howe v. Adams, 28 Vt. 541; Davis v. Andrews, 30 Vt. 678; Thorp v. Thorp, 70 Vt. 46, 39 Atl. 245. In Jewett v. Brock, 32 Vt. 65, it is said that this homestead exemption is nothing more than an inchoate lien upon the estate of the husband in her favor, and is subject to contingencies. In McClary v. Bixby, 36 Vt. 254, 84 Am. Dec. 684, it is said to be a conditional lien or incumbrance upon the title or estate of the husband in favor of his wife and minor children. In Abell v. Lothrop, 47 Vt. 375, one question was whether the wife and minor children were properly joined with the husband in equity proceedings for the protection of the homestead against a mortgage thereon by the sole deed of the husband. It was held that they had a right of occupancy in the homestead and were properly joined with the husband in a bill brought to arrest proceedings which threatened such occupancy. And in Heaton v. Sawyer, 60 Vt. 495, 15 Atl. 166, it was held that the wife takes this contingent or inchoate right through her husband, the head of the family, because of her relation to him.

The wife's interest being thus defined by the numerous decisions of this court, upon what equitable basis is the oratrix in this case entitled to the exoneration of the homestead from the common burden? There can be no doubt that for the protection of her homestead interest, thus defined, she had a right to pay the decree and regard the transaction as an equitable assignment of the mortgage to her, and the lien thereof as kept alive so far as necessary for her protection against the owner of the premises outside

general, whenever the redemption by a person interested in the premises "operates as an equitable assignment of the mortgage to himself, he can keep the lien of it alive as security against others who are also interested in the premises and who are bound to contribute their proportionate shares of the sum advanced by him, or are bound, it may be, to wholly exonerate him from and reimburse him for the entire payment." 3 Pom. Eq. Jur. § 1221; Wheeler v. Willard, 44 Vt. 640; Danforth v. Smith, 23 Vt. 247. However, the right of the oratrix to contribution, or, if it may be, to the exoneration of the homestead, does not depend upon the rights of the mortgagee, which passed to her by the equitable assignment (see Charmley v. Charmley, 125 Wis. 297, 103 N. W. 1106, 110 Am. St. Rep. 827), but "necessarily depends upon the equities subsisting between all those persons who have an interest in the premises subject to the mortgage, and who therefore have a common, but not necessarily an equal, interest in being relieved from the burden of the mortgage." 3 Pom. Eq. Jur. § 1221. And further in note 2, to the same section, the author says: "The nature and extent of the liability to contribute are primarily independent of the mortgagee, and depend upon or are controlled by the equities subsisting between the various parties interested in having the mortgage redeemed, which equities primarily arise from their several relations with the mortgagor, or from their dealings with each other."

holds it subject to the common mortgage, but without assuming its payment, the two properties alike continue to be primary securities for the mortgage debt the same as before, and the equities among the several persons interested in the mortgaged premises are equal. In Witherington v. Mason, 86 Ala. 345, 5 South. 679, 11 Am. St. Rep. 41, the court said: "When she (wife) voluntarily signs and assents to a mortgage of the homestead by the husband in the mar ner required by the statute, it loses its char acter of homestead as against the mortgagee, and becomes subject to all his rights and remedies. The homestead is not secondarily liable. * * * As the husband, to whom the homestead belonged, and in whose favor the exemption is created, has no right to compel the mortgagee to exhaust property other than the homestead before resorting to the latter, a fortiori, the wife who derives the benefit of the homestead exemption only through the right of her husband has no such right." Searle v. Chapman, 121 Mass. 19; Hall v. Morgan, 79 Mo. 47.

Moreover, the consequences of the result reached by the majority are most inequitable. It must be borne in mind that the mortgage debt is the debt of the husband, the homesteader, for the payment of which no one else is personally liable. By placing the entire burden of the mortgage on that portion of the premises outside of the homestead, as the majority do, the homestead parcel is made free and clear of incumbrance for the benefit of, not the wife, for she will still have only an inchoate interest therein, but the husband, who is the owner thereof, and who is himself the sole debtor and liable for the whole mortgage debt; and he to-morrow may abandon the homestead, sell it, and pocket the money. If it be said that with only a contribution by the other property the oratrix is not fully protected because she still has not been repaid the proportionate share resting upon the homestead parcel, the complete answer is that no reason exists why the payment of such proportionate share may not be enforced by her against the latter in the same manner as the other proportionate share is enforced against the former. She can enforce the payment of the ratable share of either only by way of the mortgage lien kept alive in equity for her benefit. Charmley v. Charmley, 125 Wis. 297, 103 N. W. 1106, 110 Am. St. Rep. 827.

Is there, as held by the majority, such an inequality of equities in the circumstances of the case under consideration as takes it out of the general rule of equity requiring each separate portion of the fund to contribute ratably to the discharge of the common burden, and creates in favor of those interested in the homestead a right of exoneration as against the owner of the other property? From the holding in Heaton v. Sawyer that the wife takes her contingent or inchoate right in the homestead through her husband, because of her relation to him, it must follow logically that her right of homestead is no greater, and is no more to be protected against a mortgage by their joint deed than is his. By signing the deed she waived her right of homestead as against that mortgage-to use the implied language of the statute, her claim to the homestead as against that mortgage was barred. Consequently under the mortgage each of the two properties was primary security in equity. They stood alike with reference to the mortgagor and with reference to each other -their equities were equal. The husband had a right by his sole deed to convey the equity of redemption in the parcel not of the homestead, but in so doing he could not increase the burden of the incumbrance upon the homestead parcel. And since the pur- ROWELL, C. J. (dissenting). I agree to

Therefore I think that by the settled law of this state and upon principle the home. stead parcel and the residue of the property should each bear its proportionate share of the sum paid by the oratrix to redeem the mortgaged premises, and that the decree should be reversed and cause remanded, with mandate accordingly.

LUMBRA et al. v. CAMPBELL. (Supreme Court of Vermont.

Nov. 16, 1910.)

GOSS v. BURT.

General Term. (Supreme Court of Vermont. Addison. Nov.

25, 1910.)

TROVER AND CONVERSION (§ 1*) - USE OF 1. EVIDENCE (8 260*) — ADMISSIONS
CHATTELS-ACQUIESCENCE-INSTRUCTIONS. AND EFFECT.

Plaintiffs having let a clapboard mill to defendant for the season of 1908, the mill was moved by mutual agreement at the conclusion thereof and stored in defendant's shed. In 1909 defendant moved it back to his sawmill and used it to saw that year's stock of logs, during which operation it was destroyed by fire without defendant's fault. While plaintiffs' permission to use the mill another year had not been requested, they knew it was being so used and made no objection. Held, that it will be presumed that such additional use was with plaintiffs' consent, and hence defendant was not liable for the value of the mill as for conversion. [Ed. Note. For other cases, see Trover and Conversion, Cent. Dig. § 2; Dec. Dig. § 1.*] Exceptions from Franklin County Court; William H. Taylor, Judge.

Action by F. W. and Albert Lumbra, partners, against Edward S. Campbell. From a judgment for defendant, plaintiffs bring exceptions. Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

W. B. Locklin, for plaintiffs. P. II. Coleman, for defendant.

ROWELL, C. J. This is trover for a clapboard sawmill. The case was tried by the court, and judgment went for the defendant. The plaintiffs let the mill to the defendant for the season of 1908. The defendant finished the cut of logs for that season in April, and notified the plaintiffs. Then by mutual agreement the mill was moved from the defendant's sawmill, where he had used it, and stored in his shed, some rods away. In February, 1909, he moved it back to his saw mill, and set it up for use in sawing another year's stock of logs, and used it there till June, 1909, when it was destroyed by fire without his fault. The defendant did not ask permission to use the mill another year, and the plaintiffs did not expressly consent to its use; but they knew it was being used, and did not object to its further use, and the defendant understood he was using it under the arrangement originally made.

These facts point strongly to the probable conclusion that the plaintiffs were willing the defendant should use the mill the second year, and were satisfied to let the use go on as it did; for otherwise they would most likely have objected when they found it out. So the court below, not only could fairly have inferred that much, but ought to have inferred it; and therefore this court will presume it did, to the end that the judgment may stand, and not fall.

Judgment affirmed.

PROOF Where, in an action for assault and battery, defendant claimed that he struck plaintiff in order to eject him from defendant's land, and that plaintiff with others had come there pursuant to a conspiracy to despoil defendant's garden, evidence that other members of the party present at the time of the assault had entered on the previous day and despoiled the garden was improperly admitted on the question of conspiracy and as affecting defendant's right to defend his property against threatened invasion, in the absence of evidence that plaintiff had knowledge of the conspiracy and was knowingly acting in furtherance of an unlawful purpose.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1010-1012; Dec. Dig. § 260.*] 2. EVIDENCE (§ 260*)-ADMISSIONS-PROOF

KNOWLEDGE OF UNLAWFUL Purpose.

The probability that one will communicate a matter to another arising from the fact that he knows of it is too speculative and remote to warrant a conclusion that an alleged conspirator communicated the unlawful purpose of a conspiracy to his brother, who was not shown to have had knowledge thereof otherwise.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1010-1012; Dec. Dig. § 260.*]

Exceptions from Addison County Court. Trespass for assault and battery by Ernest Goss against E. A. Burt. Verdict and judgment for defendant, and plaintiff brings exceptions. Reversed and remanded.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Leroy C. Russell, for plaintiff. Charles I. Button, for defendant.

MUNSON, J. The assault complained of occurred on the 13th day of July, 1909, at the river bank which bounds the rear of the defendant's house lot, and was part of a general attack on a party of boys and girls who had just landed from a rowboat. The party consisted of Ernest Goss, the plaintiff, Henry Merritt and his brother Willie, Grace Comstock and Ruth Comstock, sisters, and Wanita Warner. The boat had been drawn partly upon the bank, the plaintiff had entered it again to bail out some water, and the rest of the party were standing or sitting near by, when the defendant approached the party from the direction of his house and struck the girl Ruth with a stick as large at one end as a man's index finger; whereupon all the party except Henry Merritt and the plaintiff ran towards the adjoining lot. Shortly after striking the girl, the defendant attacked Henry Merritt with the stick and followed him into the boat, where he struck him a blow, upon which Henry jumped from the boat and waded to the bank. The defendant then struck the plaintiff with his

Willie made two trips down the river giving the others boat rides; that the ones left on the bank the second time were Grace Comstock, Wanita Warner, Piper, and the two McMaster boys; that while waiting for the return of the boat these boys entered defendant's garden two or three times, and broke off branches of currants, and pulled up vegetables of various kinds, and took them to the girls; that one or both of the girls encouraged the boys in doing this; that both ate some of the currants; that Wanita carried home some of the beets; that the rest of the vegetables were left on the bank or thrown into the river; that on their way home that afternoon Piper asked the girls, in the presence of Willie Merritt and other boys, to come down the next afternoon, saying that he would come too; that some of the girls said they would come; and that Piper asked them to bring some matches so that they could have a fire, and said that he would get fruit and vegetables from the defendant's garden. It appeared from the defendant's evidence that before the affair of the 13th he was fully informed as to the oc

stick, and finally pushed him backward from | bringing two McMaster boys with him; that the boat into the water where it was two or three feet deep. The plaintiff and Henry Merritt and Grace Comstock were 16 years of age. The defendant testified that when about eight rods from the children he shouted to them, "Get off my place"; that none of the children complied with this command; but that all of them except the plaintiff, who was in the boat, stood in a fan-shaped position with Henry Merritt in the center, which he then regarded as a formation of defense; that he thereupon struck the girl; that Henry Merritt did not at first attempt to leave the premises by land, but tried to get in the rear of the defendant and to the boat; that on an inquiry from Henry, “What are you whipping me for?" he said to him repeatedly, "Why don't you get out then"; that when he entered the boat the plaintiff had an oar in his hand, and made a movement with it which led him to believe that plaintiff was striking at him. The plaintiff's evidence tended to show that none of the children heard the defendant's direction to leave the premises; that no resistance or defense was attempted; that the plaintiff had no intention of striking the defendant; | currences of the 12th, the persons who were that Henry was from the first trying to escape from the defendant and his blows; but that the defendant kept overtaking him whichever way he ran until he finally went into the boat as a way of escape; that aft-es. The plaintiff objected to this, and furer the defendant entered the boat Henry told him they would leave if he would push off the boat; and that the presence of the defendant in the boat made it impossible for the boys to push it off. If the testimony had been confined to what occurred on that day, this would have been in substance the case presented.

The case was tried on the general issue, with a notice, among others, which set forth that on the day preceding the acts complained of certain youths and maidens entered the defendant's garden and ate and destroyed quantities of fruit and vegetables there growing; that after this a conspiracy was formed by certain of these persons to return on the morrow with others to repeat said acts, which plan was communicated to other youths and maidens and became known to the defendant; that, in accordance with and for the purpose of carrying out this conspiracy, the plaintiff and his companions landed on defendant's premises at the hour set for the second raid; and that the defendant drove them off to prevent further depredations on his garden, using no more force than was necessary.

Evidence was received under this notice which tended to show that, on the afternoon of July 12th, Grace Comstock, Ruth Comstock, Wanita Warner, and a fourth girl came upon the rear of defendant's lot; that Clifton Piper and another boy soon came to the bank where the girls were; that

there, and the plans made for the next day.

The matter covered by the notice was first broached by an inquiry made in the crossexamination of one of the plaintiff's witness

ther inquiries in that line, on the ground that they were not cross-examination, and that the evidence was immaterial and irrelevant because it had not appeared that the plaintiff was present on the 12th, nor that he was in privity with the claimed conspirators. The court ruled that, independent of any conspiracy, the evidence would be admissible as tending to characterize the plaintiff's entry upon the land, if knowledge of the previous occurrence was brought home to him. Upon a further inquiry being made, it was objected that, if defendant claimed there was some connection between what occurred on the 12th and the matter in suit that made the evidence admissible, there should be some statement as to what was to be shown later; that, if the evidence was offered to characterize the plaintiff's entry, it was not admissible for that purpose; and that, if offered to show the conspiracy alleg ed, nothing had then appeared to make it admissible on that ground. In replying to these claims, defendant's counsel insisted that, in any event, the evidence was admissible on the question of malice and exemplary damages. There was no disclaimer of an intention to ask such damages. All the questions raised by the plaintiff, as above stated, were covered by exceptions. It appeared that the boat used on the day of the assault was borrowed by the plaintiff and Henry Merritt, and that in rowing downstream they saw Willie Merritt and the three girls on