party objecting to a witness as incompetent, on account of interest in the result of the suit, to show affirmatively the disqualifying interest."

The offer to show that the insolvent gave in this indebtedness to the listers as an offset the year before the plaintiff's grandfather died, and did not afterwards, was properly excluded. He was under no obligation to enter all his indebtedness in the list of debts for which offset was claimed, and, if he owed an amount in excess of his personal property, would have no interest to do so. Assuming that there was also evidence tending to show that this action was with the plaintiff's knowledge and concurrence, the excluded testimony would have shown nothing inconsistent with the validity of her claim.

It appears from the charge that the evidence tended to show that the note was payable to the estate of Townshend, and that it did not disclose whether it was negotiable or not. The court received evidence offered by the plaintiff to show that the husband agreed to pay the note to her, and instructed the jury that she could recover if, after she became the owner of the note, there was a promise by the husband to pay it to her. To the admission of this testimony, and to the giving of this instruction, the defendant excepted. If it were to be held that the action of the court in these particulars was error, this would not require a reversal of the case, if the plaintiff was entitled to recover without the finding of this further fact, and if it is clear that the defendant was not otherwise prejudiced by the evidence. It is said in Spaulding v. Warner, 52 Vt. 29, that commissioners of claims have the power and duty to ascertain and allow all claims against the estate, without regard to the legal form in which it would be necessary to prosecute them in courts of common-law jurisdiction. It is said in Holdridge v. Holdridge, 53 Vt. 546, that proceedings in the probate court are not governed by common-law rules as to parties or forms of action. All this may be said with equal truth of proceedings in insolvency. The proceedings in both courts are to procure an adjustment of all claims against the estate, preparatory to its settlement or division. County courts have the same powers as courts of probate and insolvency in determining appeals from those courts. It would be highly detrimental to the interests of all parties to require suits in equity to establish claims which could be as easily ascertained in the courts specially provided for the settlement of these estates. Moreover, a careful consideration of the facts in Spaulding v. Warner will show that that case is determinative of the very point under consideration. In that case the estate sought to set off against the claim of a creditor a sum which the creditor had promised other parties that he would pay on an obligation due from such parties to the intestate. The court permitted this, without determining

whether the intestate could have maintained an action against the plaintiff on the facts stated in a court governed by the technical rules of the common law. If this note was assigned to the plaintiff by the probate court in the distribution of her grandfather's estate, she was, by virtue of that assignment, the real owner of the claim, and was entitled to any dividend which might be declared upon it. We think the court of insolvency could have allowed the claim to the plaintiff upon proof of this assignment and ownership, even if the note was nonnegotiable, or payable to order, and not indorsed. It follows that the county court could have permitted a recovery without submitting the question of a subsequent promise by the husband. It was not necessary that the jury should find the further fact which the testimony excepted to was offered. to establish. The case, as presented, discloses no other controverted matter upon which this evidence could have prejudiced the defendant. Judgment affirmed.

STATE v. HOLLENBECK. (Supreme Court of Vermont. Chittenden. Sept. 30, 1894.)

RAPE-CROSS-EXAMINATION OF PROSECUTRIX-EX-
CLUSION OF EVIDENCE-CURE OF ER-
ROR-HEARSAY EVIDENCE.

1. On a trial for rape it is proper, on crossexamination, to ask prosecutrix whether, about the time of the alleged offense, she had intercourse with another man.

2. Where, on a trial for rape, defendant duly excepted to the exclusion of a question to prosecutrix on cross-examination as to whether, about the time of the alleged offense, she had intercourse with another man, he will not be deprived of his exception because later in the trial the state recalled prosecutrix, and offered to allow her to be cross-examined on the subject. 3. On a trial for rape it is proper to ask prosecutrix whether before and after the alleged offense her relations with defendant were

not cordial.

for defendant.

START, J. The respondent is charged with having committed the crime of rape. The prosecutrix was a witness for the state, and, on cross-examination, was inquired of as to whether, at about the time the alleged offense was committed, she had intercourse with one Billet. The court excluded the question, and the respondent excepted. This inquiry was proper on cross-examination, and should have been allowed. The precise question presented by this exception was decided in favor of the respondent in State v. Johnson, 28 Vt. 512, and in State v. Reed, 39 Vt. 417; and an extended consideration of the authorities upon the subject is unnecessary.

The fact that the state, later in the trial, called the prosecutrix as a witness upon the same subject, and the respondent had an opportunity to cross-examine, and declined to do so, does not deprive him of the benefit of this exception. He had a right to examine

her upon this subject at any time during her cross-examination. At the time he proposed to examine her upon the subject of her relations with Billet, she had not been inquired of by the state in respect to the matter. Therefore, a cross-examination upon the subject at that time might have been of material advantage to him; for, if the prosecutrix was untruthful, she would naturally be better prepared to withstand a crossexamination after her attention had been called to the subject by inquiries made by the party calling her.

While the prosecutrix was being crossexamined by the respondent, he proposed to show by her that her relations with the respondent were friendly and cordial at the time of the alleged commission of the act complained of, and continued so thereafter. This was excluded, and the respondent excepted. While the respondent was putting in his evidence in defense, the court told him he could examine the prosecutrix upon this subject, and he declined to do so. The respondent had a right to inquire of the prosecutrix in regard to this matter while he was cross-examining her, and the denial of that right was error. He had a right to make this inquiry in cross-examination with a view to discrediting the evidence of the wit

Her testimony tended to sustain all the allegations in the indictment. She was a material witness, and probably the only witness, upon the question of whether the act complained of was by force and against her will. If she sustained friendly and cordial relations with the respondent before and after the act complained of, the fact that such relations continued would have a strong tendency to discredit her claim that the act was by force and against her will,

told by her, by cross-examination, if he could. He was not obliged to defer the examination upon this subject until he came to his side of the case, and then call her as his own witness, and undertake to discredit her story by direct inquiries. In cases of this kind, great latitude is and should be allowed in conducting a cross-examination. Usually, the prosecutrix is the only witness upon the question of whether the act was by force and against her will, and, without her testimony, no conviction can be expected. It is all important to the respondent that he discredit her testimony, and usually his only means of doing this is by cross-examination. If he cannot cross-examine the prosecutrix with a view to discrediting her story, he is deprived of the substantial benefits of a cross-examination. In State v. Reed, supra, it is said that the defense, in cases of this nature, usually rests mainly upon circumstances, and the cross-examination of the party who claims that she has been forced. Such cross-examination should therefore be allowed to be as unrestricted and searching as is consistent with the rules of law.

The testimony of Mrs. Gilman, in respect to what Mrs. Hollenbeck told her about the prosecutrix complaining of the alleged offense, was clearly hearsay evidence, and should have been excluded. It was introduced, and was doubtless considered by the jury, as confirmatory of the evidence given by the prosecutrix, and must have been prejudicial to the respondent.

Exceptions sustained, judgment and sentence reversed, and cause remanded for new trial.

THOMPSON, J., being employed in county court, did not sit.

FIRST NAT. BANK OF CHELSEA v. FITTS.

(Supreme Court of Vermont. Orange. Sept. 30, 1894.)

ACTS OF AGENT - ADOPTION BY PRINCIPAL-VALIDITY OF MORTGAGE-FALSE REPRESENTATIONS -CHATTEL MORTGAGE - SUFFICIENCY OF DESCRIPTION.

1. T. made his note to a bank, with S. as surety, and received its proceeds. After T. was adjudged insolvent, the note became due, and S. asked him to make a renewal note; stating that the court of insolvency would not allow the original note, and that T. would have to pay it. T. consulted the assignee in insolvency, who confirmed what S. said, and T. signed a renewal note in reliance on the statements of S. and the assignee, which he would not have done if he had not believed the original note had been disallowed. The original note had in fact been allowed. The bank did not know of the representations made to T. as to the disallowance of the original note. T. renewed the note several times at the request of S., and on the last renewal gave the bank a chattel mortgage to secure the note. Held that, as neither S. nor the assignee represented the

bank in procuring the renewals, the mortgage was not invalid because of their misrepresenta

tions.

2. As between the parties to a chattel mortgage, a description of the property as "all growing grass on my home place, except sufficient for ten tons of hay; all the growing crops, except what the law exempts, on said home farm; and all the farming tools on said premises," is sufficiently definite.

3. As between the parties to a chattel mortgage, a description of the property as "all growing crops, except what the law exempts, on said home farm," means that the portion exempt is to be calculated after the crops have been separated from the freehold.

4. As between the parties, a chattel mortgage describing the property as "all growing grass on my home place, except sufficient for ten tons of hay," is not void for failure to provide for separating the mortgaged property, as it shows how much the mortgagor may appropriate, and leaves the balance of the grass as security.

5. As between the parties, a chattel mortgage describing the property as "all growing crops, except what the law exempts, on said home farm," is not void for failure to provide for separating the mortgaged property, as, to determine what property was mortgaged, all that the mortgagor has to do is to ascertain what part of the crops is exempt.

Exceptions from Orange county court. Trover by the First National Bank of Chelsea against F. G. Fitts. There was a judgment pro forma for defendant, for his costs, and plaintiff excepts. Reversed.

The plaintiff claimed title to the property in question under a chattel mortgage from the defendant to itself. The referee found that the defendant had appropriated the property in question, and had thereby converted it, if the title of the plaintiff was a valid one. The defendant denied the validity of the plaintiff's title-First, because the note to secure which the mortgage was given was invalid; and, secondly, because the mortgage itself was void by reason of the indefiniteness of the description of the property mortgaged. In reference to the first point, it appeared that the note in question was given in renewal of a note originally dated October 13, 1884, and payable to the plaintiff bank. The defendant obtained the money on this note from the plaintiff, and procured one Moses Spear to sign with him as surety. November 25, 1884, the defendant was adjudged an insolvent debtor, upon a petition dated October 22, 1884; and such proceedings were had that February 20, 1886, he received a discharge in insolvency discharging him from all debts existing previous to said October 22d. The plaintiff proved its debt against the insolvent estate, but whether it received a dividend, or what dividend, did not appear. April 13, 1885, the note was renewed, and was again renewed from time to time thereafter down to April 8, 1889, when the note secured by this mortgage was given. Before the renewal of the note, on April 13, 1885, the said Spear saw the defendant, gave him a blank note to sign to renew the other, and told him that the court of insolvency would not allow the proof of the note, and that the defendant

would have the note to pay. Subsequently the defendant applied to one Porter, his assignee in insolvency, and was informed by Porter that the note had not been allowed against the estate. In signing the renewal, on April 13th, the defendant relied upon the representations of Spear and Porter; and he did not now know, until after the giving of the note and mortgage in question, that those representations were not true. The referee found that the defendant would not have signed the note of April 13, 1885, nor the renewals, including the note secured by the mortgage in question, had it not been for the aforesaid false representations of Spear and Porter. Neither the plaintiff nor any of its officers knew what had passed between the defendant and Spear and Porter in reference to the renewal of the note, or what had been said to induce the plaintiff to renew it. The description in the chattel mortgage was as follows: "One black mare and one baby colt, and their increase; all growing grass on my home place, except sufficient for ten tons of hay; all growing crops, except what the law exempts, on the said home farm; and all the farming tools on said premises."

J. K. Darling, for plaintiff. J. H. Watson and A. M. Dickey, for defendant.

START, J. It appears that the defendant, as principal, and one Moses Spear, as surety, on the 13th day of October, 1884, gave the plaintiff their promissory note. On the 25th day of November, 1884, the defendant was adjudged an insolvent debtor, and obtained his discharge. On the 8th day of April, 1885, the defendant and said Spear renewed the note thus given to the plaintiff by giving a new note; and new notes were given by them from time to time until April 8, 1889, when the note secured by the chattel mortgage in question was given. Before the first renewal of the note, Spear gave the defendant a blank renewal note to sign, and told him the court of insolvency would not allow the original note, and that he would have it to pay. Before the defendant signed the renewal note, he asked the assignee of his estate if the note had been allowed, and hetold him it had not. The note was renewed from time to time at the suggestion of Spear. The defendant would not have renewed the note, had he known that his discharge released him from liability on the original note. The original note had in fact been allowed by the court of insolvency, but the defendant was not aware of this; and, at the time he executed the chattel mortgage in question, he did not know that the statements of Spear and the assignee were untrue. Neither the plaintiff nor any of its officers knew anything of what passed between Spear, the assignee, and the defendant in reference to the renewal of the note, nor what was said to induce the defendant to renew it.

The defendant claims that the plaintiff adopted the acts of Spear and the assignee in procuring a renewal of the note, and that it is chargeable with knowledge of the representations made by them in so doing. We do not so hold. Spear and the assignee were not acting for the plaintiff. They were not the agents of the plaintiff. Spear was acting for himself, and for his own interest, and the assignee only answered an inquiry made by the defendant. It was for Spear's interest to have the defendant remain liable on the original debt, and he procured the defendant to renew the note for his own benefit, not for the benefit of the plaintiff. The plaintiff did not take any steps towards having the defendant renew the note. It was renewed by the defendant from time to time at the suggestion of Spear. When the defendant was adjudged an insolvent person, and obtained his discharge, he was no longer liable upon the original note. Pending the question of his discharge, the note could be enforced only against Spear. It was his duty to pay it. He did not pay it, but elected to renew it, and in renewing it he was acting for himself. He was not engaged in the business of the plaintiff, and the case differs in principle from the class of cases cited by the defendant, where it is held that if a principal adopt a contract of 'a self-constituted agent, who assumes to act for him without authority, he is bound by all acts within the scope of the assumed authority of such agent. Spear did not assume to act for the plaintiff. He was acting for himself. We therefore hold that the note to secure the payment of which the chattel mortgage in question was given was the note of the defendant, and that he cannot avoid the mortgage by reason of any infirmity in the note.

It is claimed that the mortgage does not contain a sufficient description of the property, and that no lien was thereby created upon any of the property sued for. The property sued for is described in the mortgage as follows: "All growing grass on my home place, except sufficient for ten tons of hay; all the growing crops, except what the law exempts, on said home farm; and all the farming tools on said premises." In Parker v. Chase, 62 Vt. 206, 20 Atl. 198, it is said, "While a description need not be enough to enable one to find the property without inquiry, it must be such as to indicate the line of inquiry, and furnish the basis of identification." Applying

this rule, we think the description of the grass and crops is sufficient, as between the parties. The defendant described the grass in his mortgage as growing on his home place, and the crops as growing on his home farm. He must have known the location of his home place and his home farm; and if he did he knew that a portion of his grass and other crops was mortgaged, and he was not laboring under a mistake when he converted them to his own use. The inquiry suggested by

the mortgage would lead the mortgagee to look for the mortgagor's home place and home farm at the time the mortgage was executed. and when he had found them he could identify the property mortgaged by inquiry sug gested by the mortgage itself. As between the parties, this is all that is required. The statute relating to the execution and recording of chattel mortgages has not affected the rights of the parties to the mortgage. They remain the same as they were at common law. R. L. § 1966. As between the parties to a chattel mortgage, any description is sufficient, if by it the mind is directed to evidence whereby it may ascertain the precise property conveyed. Bank v. Ratkey, 79 Iowa, 215, 44 N. W. 362. Written descriptions of property do not identify by themselves. They only furnish the means of identification, and, as between the parties, they are to be interpreted in the light of the facts known to and in the minds of the parties at the time. scription which is sufficient between the parties to the mortgage may be utterly insufficient as against third persons. As between the parties, a specific and particular description is not necessary; but, to be effectual as against third persons, it must point out the subject-matter so that such persons, by it, together with such inquiries as the instrument suggests, may be able to identify the property intended to be covered. Tindall v. Wasson, 74 Ind. 495; Cass v. Gunnison, 58 Mich. 108, 25 N. W. 52; Tootle v. Lyster, 26 Kan. 598; Gurley v. Davis, 39 Ark. 394.

The crops are described as "all the growing crops, except what the law exempts, on said home farm"; and it is contended that, inasmuch as all growing crops are exempt from attachment and levy upon execution, no crops are mortgaged. Such a construction would render the mortgage, so fa, as it relates co crops, meaningless, and ought not to be given, if the language used admits of any other interpretation. Words are not to be construed in a frivolous or ineffectual sense, when a contrary exposition can be given. They should have a reasonable construction, according to the intent of the parties. It is clear that the parties intended some crops to be covered by the mortgage; and, to give effect to their contract, we must hold that the parties intended, by the words "except what the law exempts," to except from the operation of the mortgage such crops as would be exempt after they were severed from the freehold. We think this to be the true construction to be given to the words used. By this construction, we give effect to the clear intent of the parties, and give the contract, in respect to crops, legal and actual operation.

It is claimed that the mortgage, so far as it relates to grass and crops, is void, because it contains no provision for separating the mortgaged from the unmortgaged portion. As between the parties, chattel mortgages need not contain a specific and particular description of the several articles by which

to identify them from other like articles of the mortgagor. Gurley v. Davis, supra; Cobbey, Chat. Mortg. § 69; Call v. Gray, 37 N. H. 428. A mortgage of one-third of 21 acres of growing wheat, situate in a certain place, means an undivided third of such wheat, and is a sufficiently particular description. Zehner v. Aultman, 74 Ind. 24. The holding in Sims v. Mead, 29 Kan. 124, and Potts v. Newell, 22 Minn. 561, is to the same effect. A mortgage of "fifty thousand pounds of cotton, to be produced during the present year," on described premises, sufficiently describes the property. Robinson v. Mauldin, 11 Ala. 977. When the defendant had appropriated to his own use sufficient grass to make 10 tons of hay, and the number of bushels of potatoes, wheat, corn, and -oats exempt from attachment and levy upon execution, he knew that the balance of the hay and crops were holden as security for the payment of the mortgage debt; and, when he converted them to his own use, he is presumed to have done so knowing that he was converting property, the legal title of which was in the plaintiff, and in which he had only an equity of redemption. No further description of the property was necessary to enable him to say what quantity of hay and other crops should be set apart to satisfy the mortgage debt, and he has no reason to complain if he is chargeable only with the balance of the grass and other crops after deducting the quantities excepted in the mortgage. He could not have understood that he was entitled to more until the mortgage debt was paid. By holding, as we do, that the mortgage upon the grass and crops was valid between the parties, we give effect to the manifest intention of the parties. The pro forma judgment is reversed, and judgment rendered for the plaintiff to recover $303.77 and its costs.

MORTGAGED PROPERTY-SEIZURE UNDER EXECU TION-RIGHT TO POSSESSION.

R. L. § 1180, authorizes the taking and sale of mortgaged personal property on execution against the mortgagor. Section 1181 provides that the officer levying the execution may demand of the mortgagee an account in writing of the amount due on the mortgage, and that the officer may retain the property till such account is rendered. Section 1182 provides that, if the mortgage debt is due at the time the account is rendered, the judgment creditor may pay or tender the amount thereof, and sell the property discharged of the mortgage. Acts 1888, No. 69, provides that when the account is rendered the property may be sold subject to the mortgage, whether the mortgage debt is due or not. Held, that where, after property has been advertised for sale under a

mortgage, it is levied on, in the possession of the mortgagor, under an execution against him, and the officer taking the property advertises it for sale under the execution, and there is nothing to show that he intends to sell the property without regard to the mortgagee's rights, and there is no unreasonable delay on his part, or evidence that he does not intend to proceed according to the statute, replevin will not lie, in favor of the mortgagee, to recover the property from the officer.

Exceptions from Orange county court.

Replevin by the National Bank of Chelsea against H. M. Miller and another. There was a judgment for defendants, and plaintiff excepts. Affirmed.

The plaintiff claimed title to the property under a chattel mortgage, it being the same chattel mortgage drawn in question in the case of Bank v. Fitts, 30 Atl. 697. The plaintiff placed this mortgage in the hands of one Collins, a deputy sheriff, with instructions to advertise and sell the property therein named according to law. Collins saw the defendant Fitts, and removed the property. The mare and colt were then in the barn on the premises where Fitts lived. As to the other property, Fitts said he had none to deliver. Collins advertised said mare and colt for sale under said chattel mortgage, the date of said sale being February 13, 1891. On that day Collins adjourned the sale, but for what reason, and to what time, did not definitely appear. Before the time arrived to which the sale had been adjourned, the defendant Miller, as deputy sheriff, had attached the same mare and colt on a writ in favor of one Keniston, against the defendant Fitts, and on February 25, 1891, having meantime received an execution in said suit, the defendant Miller, as deputy sheriff, levied on the mare and colt in dispute, moved the same from the barn of the defendant, and immediately advertised them for sale upon said execution, according to law, but before the day of the sale said mare and colt were taken from his possession on the suit of replevin in this case. At the time of the bringing of the replevin suit, the defendant Fitts had no possession or control over the mare and colt.

J. K. Darling, for plaintiff. J. H. Watson and A. M. Dickey, for defendants.

START, J. The plaintiff claims the property replevied under a chattel mortgage from defendant Fitts. Defendant Miller claims that at the time the property was replevied he had lawful possession of it, for the purposes of a sale upon an execution against Fitts. It is found that defendant Miller, as deputy sheriff, took the property from the possession of defendant Fitts upon an execution against him, and posted it for sale, and that before the day of sale it was taken from his possession upon the replevin writ in this case. In order for the plaintiff to maintain its action of replevin, the burden was on it to show an unlawful taking or an unlawful detention of the property. R. L. § 1230; Dearing v. Smith, 66 Vt. 60, 28 Atl. 630. This it