testimony did not meet defendant's theory of the case. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4145; Dec. Dig. § 1048.*] 9. APPEAL AND ERROR (§ 971*)-DISCRETION OF COURT-CROSS-EXAMINATION. The latitude of cross-examination of witnesses is within the sound discretion of the court, and, unless the discretion has been abused, its exercise is not the subject of review. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3852-3857; Dec. Dig. § 971.*] 10. WITNESSES (§ 329*)-CROSS-EXAMINATION -DISCRETION OF COURT. The court may within its discretion permit a party to ask on cross-examination of a witness, to test his memory, questions relating to matters shown by written instruments. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1103, 1104; Dec. Dig. § 329.*] 11. WITNESSES (§ 379*) - IMPEACHMENT-IN CONSISTENT STATEMENTS. Where, in an action for lumber sold, defendant claimed that a third person was the owner of the lumber, and that his testimony in chief that plaintiff owned it, and that the third person had acted for him under a contract to saw and deliver it was false, questions by defendant on cross-examination of the third person as to an account prepared by the third person disclosing the total amount he was owing defendant, after taking into consideration a credit for money which defendant had paid to plaintiff, were proper to discredit the third per son. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 1249; Dec. Dig. § 379.*] 12. WITNESSES (§ 330*)-CROSS-EXAMINATION -EXTENT. Where a witness testified in chief that he was to do certain work for the party calling him without compensation, the adverse party could cross-examine him as to the fair price of the work done as bearing on the probability of the truth of his statement. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1106-1108; Dec. Dig. § 330.*] 13. APPEAL AND ERROR (§ 1051*)-HARMLESS ERROR ERRONEOUS ADMISSION OF EVIDENCE. The error in permitting a party to a contract to testify to a fact appearing from the instrument evidencing the contract is harmless. [Ed. Note.-For other cases. see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. & 1051.*] 14. SALES (8 52*) - EVIDENCE-PARTIES TO CONTRACT. Where, in an action for lumber sold, defendant claimed that the lumber was the property of a third person, who manufactured the lumber with money advanced by defendant, and that defendant had paid plaintiff a specified sum in full settlement of all the claims of plaintiff, who had agreed to look to the third person for the balance of his account, evidence that de fendant had furnished money to buy land, and also other money, was properly received as against the objection that it was immaterial. [Ed. Note. For other cases, see Sales, Cent. Dig. § 126; Dec. Dig. § 52.*] 15. WITNESSES (§ 379*)-IMPEACHMENT-EVIDENCE-ADMISSIBILITY. Defendant was properly permitted to testify that he was at the mill of the third person, and saw men working there, and that he sent money to the third person with which to saw the lumber. [Ed. Note. For other cases, see Sales, Cent. Dig. § 126; Dec. Dig. § 52.*] 17. APPEAL AND ERROR (§ 273*)—QUESTIONS REVIEWABLE-EXCEPTIONS. Where the exceptions complaining of the admission of testimony on redirect examination of a witness do not show that any ground the cross-examination, error does not appear. of objection was given, nor anything regarding [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1621; Dec. Dig. § 273.*] 18. SALES (§ 52*) CONTRACT. Evidence that subsequently the third person executed a note to plaintiff secured by a mortgage was admissible to corroborate defendant's testimony touching the settlement and plaintiff's agreement. EVIDENCE PARTIES TO [Ed. Note. For other cases, see Sales, Cent. Dig. § 126; Dec. Dig. § 52.*] 19. SALES ( 201*) - DELIVERY-PASSING OF TITLE. Where a contract of sale of chair stock fixed as the place of delivery on board cars at a station four or five miles from the mill, the title to the property did not vest in the buyer until the stock was placed on board cars at the station, for, until that was done, something remained for the seller to do to complete a delivery. [Ed. Note. For other cases, see Sales, Cent. Dig. 535; Dec. Dig. § 201.*] 20. SALES (§ 201*)-DELIVERY-WAIVER. A contract of sale of chair stock fixed as the place of delivery on board cars at a station four or five miles from the mill. When the chair stock was ready for shipment, the buyer explained the reason why the stock could not be shipped to him, and the stock remained in the mill subject to the order of the buyer. Later the buyer agreed that the stock could be placed in a barn near the mill, where it was when destroyed by fire. Held, that the buyer did not waive delivery on board cars at the station so that title had not passed to him, and the seller could not recover for goods sold and delivered. [Ed. Note. For other cases. see Sales, Cent. Dig. § 541; Dec. Dig. § 201.*] Exceptions from Washington County Court; Fred M. Butler, Judge. General assumpsit by Mark Mears against Harry Daniels to recover the proceeds of a quantity of lumber sold. There was a verdict and judgment for defendant, and plaintiff brings exceptions. Affirmed. Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ. Where, in an action for lumber sold, the defendant claimed that the lumber was the property of a third person, who as a witness for R. M. Harvey and E. M. Harvey, for plaintiff testified that the lumber belonged to plaintiff, and that he had acted for plaintiff un- plaintiff. Fred L. Laird and Harry C. Shurtder a contract to saw and deliver it, evidence leff, for defendant. WATSON, J. The exceptions are consid- | that his logs were to be sawed and the ered in their numerical order. lumber put on the cars by Lamberton for nothing, was asked in cross-examination, subject to objection as immaterial, whether, in order to do this, Lamberton did not have to have hired help. The answer is not shown by the record, hence the exception is without avail. Exception 1. At the time of the transactions in question the plaintiff was a resident of the town of Marshfield. The logs and lumber that his evidence tended to show he owned were located at the Lamberton mill in the town of Cabot, and by statute were taxable in the town where situated. P. S. 510. If the plaintiff owned this property, it was his duty to return the same by his inventory to the listers in that town for taxation. P. S. 543. His failure to return any inventory there had some tendency to show that he did not own the property. Richard-ant claimed that Lamberton was the real son v. Hitchcock, 28 Vt. 757; Hubbard v. Moore, 67 Vt. 532, 32 Atl. 465; Jaquith v. Shumway's Estate, 80 Vt. 556, 69 Atl. 157. Exception 2. The fact shown by plaintiff's testimony that he did not include the logs and lumber in his inventory returned to the listers in the town where he resided could do him no harm. The property was not there taxable. Exceptions 3, 4. The question asked the plaintiff as shown by each of these exceptions was whether in the year 1908 he put into his inventory in the town of his residence anything as due from the defendant. In each instance the plaintiff answered in effect that he could not tell. Whether the questions were proper or not the answers were harmless. Marcy v. Parker, 78 Vt. 73, 62 Atl. 19. Exception 7. F. G. Lamberton, called as witness by the plaintiff, testified in direct examination that the plaintiff owned the lumber cut from the "Mears logs," and that the witness was acting for him under a contract to saw and deliver it. The defend owner of this lumber, and that his testimony in respect to the ownership and his contract with the plaintiff was false. In cross-examination, under objection and exception, the witness was permitted to testify that those logs were in his millyard the first day of April, and that he listed them in his inventory. In view of the direct testimony, this evidence brought out in cross-examination was proper as tending to discredit the witness. Exception 8. The same witness was asked in cross-examination whether the funds used by him from February till April, until the time he went to sawing and lumbering, came from the defendant, and answered in the affirmative. The question "was objected to by the plaintiff as not affecting his case, and especially that it does not meet defendant's own theory of the case, either in form or substance." Assuming this exception to be well taken, the grounds of the objection show that the plaintiff could not have been injured by the evidence. as if they were his own, and answered that he did. This evidence was proper in crossexamination for the same reason as that under exception 7. Exception 5. The defendant produced a certain mortgage of personal property, dated July 14, 1908, given by F. G. Lamberton to the plaintiff, together with a promissory note for $1,000, secured thereby. Before offering the same in evidence, the plaintiff Exception 9. The same witness, having was asked by the defendant, subject to ob- testified to the sawing the "Mears logs and jection and exception, whether some time the Daniels logs," and that they were not later he canceled the note and discharged kept, separate, was asked in cross-examinathe mortgage, and answered, "Yes, sir."tion, subject to exception, whether he treatThe objection made was (1) that by this ex- ed that stock of logs and handled them all amination the plaintiff was made the defendant's own witness; and (2) that the mortgage was not yet in the case and plaintiff objected to its being "read in." The answer to the first objection is that by statute Exception 10. The same witness, having one party to a civil action may compel the testified in cross-examination that he sold adverse party to testify as a witness in his the chair stock to the defendant at certain behalf, and may examine him under the prices, and that the latter returned to the rules applicable to the cross-examination of witness the amount received for each car, a witness. P. S. 1596; Childs v. Merrill, 66 was asked whether the defendant credited Vt. 302, 29 Atl. 532; Swerdferger v. Hop- the witness the amount of the car on the kins, 67 Vt. 136, 31 Atl. 153; Hamilton v. bill which he returned, and answered in the Gray, 67 Vt. 233, 31 Atl. 315, 48 Am. St. Rep. affirmative. The question was for the pur811; Jennett v. Patten, 78 Vt. 69, 62 Atl. pose of testing the memory of the witness, 33. If the second objection ever had any and permitted subject to exception; the force (which we do not decide), it was ren- ground of the objection being that the bills dered harmless by the subsequent introduc- would show for themselves. It was said by tion in evidence of the note and mortgage by which it appeared that they were canceled and discharged. Nye v. Daniels, 75 Vt. 81, 53 Atl. 150. Judge Redfield in Stevens v. Beach, 12 Vt. 585, 36 Am. Dec. 359, that it is no doubt competent to put almost any question upon cross-examination, which may be considered ness. We think the rule is correctly stated | tween himself and the witness Lamberton by Chief Justice Shaw in Hathaway v. in reference to lumber operations between Crocker, 7 Metc. (Mass.) 262, 266: "In cross-them. Subject to objection on the ground examination an adverse party is usually al- that the contract was in writing, the delowed great latitude of inquiry, limited only fendant testified that he had some arrangeby the sound discretion of the court, with a ment with Lamberton by which he was to view to test the memory, the purity of prin- furnish money to get some logs in there. ciple, the skill, accuracy, and judgment of Since the same thing appeared from the writthe witness, the consistency of his answers ten contract in evidence, this testimony with each other, and with his present testi- could do no harm. The defendant was furmony, his life and habits, his feelings to- ther permitted to testify, subject to objecwards the parties, respectively, and the like, tion and exception as immaterial, that he to enable the jury to judge of the degree of did furnish money, the first, $1,250 to buy confidence they may safely place in his tes- land, and, the next, on February 18th, $100. timony." Unless it appears from the record, The defendant claimed that the "Mears which it does not in this case, that the dis-logs," so called, were, in fact, purchased and cretion of the trial court in the particular instance was abused, its exercise is not the subject of review. Hathaway v. Goslant, 77 Vt. 199, 59 Atl. 835. Exception 11. During cross-examination the same witness was shown a slip pasted in the back of an account book, and, having testified that the same was made by him, was examined, subject to exception, and testified that in the figures thereon he had given the defendant credit for $1,500, which defendant paid to the plaintiff in February, 1908; that in arriving at the figures on the slip the witness charged on one side of the account to the defendant all the lumber of every description, which witness had shipped to him; and that from the figures of the witness there made the total amount he was owing the defendant was $7,239.74. In per mitting such examination there was no error. The facts thus elicited tended to dis credit the evidence in chief of the witness respecting the ownership of the lumber in question and his contract with the plaintiff. Cady v. Owen, 34 Vt. 598. Exception 12. The same witness, having testified that, by his contract with the plaintiff, he was to put the plaintiff's hard wood logs into the pond, saw them into boards, put the boards into stacks, cut the chair stock, and stack it ready to be put into the wagon, without compensation from the plaintiff, was properly cross-examined regarding the fair price for doing the work. It bore upon the probability of the truthfulness of his story. owned by Lamberton; that as between the defendant and Lamberton no balance was due; that the "Mears logs" were manufac tured with money advanced by the defendant to Lamberton at the plaintiff's request; that in February, 1908, the defendant paid to the plaintiff the sum of $1,500 in full settlement of all claim of the plaintiff in and to the logs and lumber; and that thereupon the latter agreed to look to Lamberton for the balance of his account. In view of this claim, it cannot be said that the above evidence as to furnishing money was immaterial, and the exception is without force. Exception 15. The defendant was allowed to testify to two separate conversations had by him with the witness Lamberton, the first in respect to where he got his money logs (which from the exceptions we underwith which to buy the Fifield and Freeman stand to be the same logs herein before called the "Mears logs"), and the second, as which to manufacture those logs. In anto who was going to furnish money with swer to the first question, Lamberton said: "Mark Mears helped him buy them"; and in answer to the second question, Lamberton said he "supposed Mark would have to. He said in another breath that Mark said that I would send up the money. I told him I didn't want he should saw any of them, or put any of my money into them until we found out who was to have them, and didn't want he should mix them with my logs or with my lumber; and he wanted when I went home that I should stop and see Mark.” This testimony of what Lamberton said on the two occasions to which reference is made had a tendency to impeach him as a witness and was properly received. Exception 16. The defendant, having testi Exception 13. The same witness, having testified on cross-examination that he had a petition in bankruptcy pending, was asked, subject to exception, whether he filed a claim there, signed by him, against the plain-fied that he sent money to Lamberton with tiff "for lumber sold which should apply on my indebtedness to him and the balance, if any, should be paid to me, the amount of lumber sold and not credited estimated to be in the sum of $1,300," and answered, "I don't know as I did. Like to see the paper." This exception stands as do exceptions 3 and 4, and for the same reason is without avail. Exception 14. The defendant introduced in which to saw the logs, giving same dates and amounts, was permitted to testify, subject to exception, to what money he sent Lamberton and the purpose. This was in line with the theory of the defense, and proper. Exception 17. The defendant, having testi fied on direct examination in his own behalf that he was at the Lamberton mill during It Exception 18. The defendant was allowed to testify on redirect examination, subject to exception, that he went over the lumber accounts from time to time with Lamberton, and that the latter never raised any question as regards 2 per cent. in cash and 5 per cent. discount, and that they never had any dispute over accounts. The exceptions do not show that any ground of objection was given, nor do they show anything regarding the cross-examination. Therefore error does not appear. ing there, was permitted to testify, subject | piece, delivered on board cars by Lamberton to exception, that 12 or 13 men were working at Marshfield for transportation to Gardner, and that he knew when pay day came. Mass., and seven car loads were so cut and was not error to receive this evidence in con- shipped at his order. In December, 1907, nection with that under the preceding ex- Lamberton cut from the "mixed" lumber a ception showing that the money or some of car of chair stock under this order, and then it sent to Lamberton by the defendant was informed the defendant that he was ready to finish the "mixed" lumber, and to "jig- to ship. Whereupon the defendant told Lamger the chair stock." berton he had been notified that the sheds at Gardner were full, and that the company to which he was selling did not wish him to ship it; that the chair stock remained in the mill during the remainder of the winter and until the spring of 1908, subject to the orders of the defendant. It being in Lamberton's way for the spring sawing, he said by telephone to the defendant, "Why not put it down in the barn under cover?" to which defendant replied, "All right, put it down there." Lamberton removed the chair stock to the barn, where it remained until destroyed by fire. The selling price was so much per piece f. o. b. Gardner, delivered on board cars at station (Marshfield) some four or five miles distant, less freight to Gardner. The plaintiff knew of this contract with the defendant for the "mixed" lumber, but not of the above facts. The court charged the jury that this lumber was never delivered to the defendant, the defendant never received it, and therefore no recovery therefor could be had under the declaration in this action for goods sold and delivered, to which the plaintiff excepted, claiming that the above evidence showed a complete sale and should be submitted to the jury. Since the contract of sale specified the place of delivery, namely, on board cars at Marshfield station, a place four or five miles from the mill, until the chair stock was placed on board cars at that station by the vendor, something remained to be done by him to complete a delivery under the contract, and title to the property did not vest in the defendant. BrunswickBalke Collender Co. v. Herrick, 63 Vt. 286, 21 Atl. 918. It remains to be considered whether, as claimed by the plaintiff, there was evidence tending to show a waiver by the defendant of a delivery at the specified place, and an acceptance by him of the property under the contract at the barn to which it was removed. When the chair stock was cut ready for shipment in December, 1907, and the defendant notified thereof, he told Lamberton, in effect, that it could not then be shipped, and the reason why. The exceptions go on to state "that the chair stock remained in the mill during the remainder of the winter and until the spring of 1908 subject to the orders of the defendant." This, however, means no more and has no other tendency than that it remained there ready to be delivered on notice from the defendant. It has no tendency to show a waiver by him of the specified place of delivery, or an acceptance of the property. Exception 19. The plaintiff was called to the stand by the defendant, and testified that, aside from the balance of book account and grocery account, the plaintiff was holden for Lamberton as indorser; "there was this book account and this note I have got, that was all"; that at the time of taking the chattel mortgage Lamberton was owing him grocery bills or book account, "$450 for my chair waste money" used up, which is not reckoned in the store account; that the chattel mortgage had nothing to do with the lumber deal; that Lamberton was not owing him anything aside from the book account and what plaintiff was holden for on notes-all told more than $1,000-nearer $2,000, or more. On the above testimony, the court admitted in evidence the chattel mortgage and the promissory note, to which plaintiff excepted. The ground of the objection does not appear. As before seen, the defendant's evidence tended to show that in February, 1908, the defendant paid to the plaintiff the sum of $1,500 in full settlement of all claims of the plaintiff in and to the logs and lumber, and that the latter thereupon agreed to look to Lamberton for the balance of his account. The chattel mortgage produced dated July 14, 1908, was given by Lamberton to the plaintiff, together with the note for $1,000 secured thereby. The taking of this note and mortgage from Lamberton by the plaintiff at that time was a circumstance tending to corroborate the defendant's testimony touching such settlement between him and the plaintiff and the agreement by the latter to look to Lamberton for the balance of his account, and was properly received. Exception 20. The plaintiff claimed to recover for chair stock, amounting to the sum of $483.88, which was destroyed by fire at the Lamberton mill in July, 1908. Plaintiff's evidence tended to show that the defendant placed with Lamberton orders for chair stock to be cut from certain patterns fur Gurney, for respondent. On upon as evidence of such waiver and an ac- Decree reversed, and order remitted, with ceptance of the property was in the follow-direction to admit the will to probate. ing spring, some months later, when Lamberton asked him over the telephone, "Why not put it (chair stock) down in the barn under cover?" and defendant replied, "All right, put it down there." The case does not state who owned the barn, yet, as the burden of proof is with the plaintiff, it will be inferred that it was owned by Lamberton, the same as the mill. That the barn was near the mill fairly appears from the facts that the chair stock "was destroyed in a fire at the Lamberton mill," and that it was in the barn when so destroyed. So far as appears, the full possession and control of the chair stock was in Lamberton after its removal to the barn, the same as before. There was nothing in the conversation over the telephone indicating an intention by either party to have such removal constitute a delivery of the property, nor that the defendant intended to accept the property at the barn, thereby waiving the provision of the contract requiring its delivery at the place specified four or five miles away, involving work and transportation at no inconsiderable expense. Giving the conversation the most favorable construction to the plaintiff, it amounted to no more than an assent by the defendant to the removal of the chair stock to the barn to be housed until delivered according to the contract, instead of remaining in the mill where it was. We are of the opinion that in the ruling of the court on this phase of the case there was no error. See Brunswick-Balke Collender Co. v. Herrick, cited above; Kitson Machine Co. v. Holden, 74 Vt. 104, 52 Atl. 271. Judgment affirmed. BLOOM v. TERWILLIGER. (Prerogative Court of New Jersey. 1911.) WALKER, Vice Ordinary. The court below refused probate upon the ground that there did not appear to have been a publication in the presence of the subscribing witnesses. And this conclusion, in my judgment, was right, considering the evidence before the court. After the matter had been removed into this court on appeal, the appellant applied to the ordinary and obtained leave to take additional testimony. In pursuance of this order further testimony was taken, consisting largely of a re-examination of the principal witnesses who were sworn and examined before the court below. this examination May Bloom, the sister and principal beneficiary under the alleged will, who had previously testified that at the time the will was signed she did not remember her sister said anything to the witnesses or they to her about the paper, said she then remembered that Mr. McLelland, the draftsman and one of the witnesses, said to her sister, "Do you declare this to be your last will and testament?" to which she answered, "Yes; I do." She says she did not remember it at the time she testified before the orphans' court, because she had never been in a courtroom and was excited. McLelland testified that he read the will to Mrs. Terwilliger, but that she gave no indication whether she heard or understood the contents, Miss Bloom held her hand and guided it while she signed her name, and he (MeLelland) then requested Dr. Whitfield to sign it, which he did, and then he (McLelland) signed it, and they both left. The judge of the court below put his refusal to probate the will on the ground that the presumption of due execution arising out of the perfect Jan. 31, attestation clause was overcome by the dlrect testimony of McLelland that publication had not taken place, while the statements of the other two persons present, namely, Dr. Whitfield and Miss Bloom, were that they did not remember anything that amounted to a publication either by word or act. As the testimony now stands the stories are different. We now have Miss Bloom say. ing in the most positive terms that there was publication, while McLelland makes an equally positive declaration that there was not. 1. WILLS (§ 289*)-EXECUTION - EVIDENCE BURDEN OF PROOF. Where a will offered for probate contains a formal attestation clause, the burden of proof is thereby thrown upon the contestant to negative its averments upon the points in dispute, by strong and convincing evidence. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 651-664; Dec. Dig. § 289.*] 2 WILLS (8 302*)-EXECUTION EVIDENCEWEIGHT AND SUFFICIENCY-PUBLICATION. Evidence held sufficient to show that a will offered for probate had been published in the presence of the subscribing witnesses. [Ed. Note.-For other cases, see Wills, Cent. Dig. $$ 700-710; Dec. Dig. § 302.*] Ordinarily I would say that the belated testimony of Miss Bloom, interested as she is, coming after leaving the stand and conferAppeal from Orphans' Court, Essex County. ring with counsel as to further testimony Application by Alvah J. Bloom for probate (and this is no reflection on counsel) could of the will of Lucinda M. Terwilliger, con- not be accepted as against the direct and tested by Joseph L. Terwilliger. From a de- positive and apparently disinterested testicree of the Essex County Orphans' Court de-mony of McLelland, but I am prepared to nying probate of the will applicant appeals. I give it the greater weight in this case for |