the keeping a house of ill-fame an offense, to depend on the motive of the person keeping it. It is immaterial, whether it is kept for pecuniary profit and gain, or for other motives equally bad and more debasing. It is most common, that pecuniary profit and gain, in some way, is the governing motive. This motive may be inferred, as the evil intent is in other cases; but the prosecutor is not and can not be bound to prove the actuating motive of the offender. The precedents of indictments for this offense usually state, as in this case, that it was for pecuniary profit, or gain. This, however, need not be proved. The charge of the court was correct in this particular. We see no reason to doubt, either the sufficiency of the indictment, or the correctness of the proceedings of the county court.

Judgment must be rendered on the verdict, and the sentence of the law awarded to the respondent.

THE PRINCIPAL CASE IS CITED in State v. Thibeau, 30 Vt. 100, to the point, that on the hearing of a motion in arrest of judgment, defects in the caption, or even the omission of the caption, can not be noticed.

DEFECT IN CAPTION TO INDICTMENT, and what the caption should and should not show: See Carpenter v. State, 34 Am. Dec. 116, and note 121, where cases are collected; State v. Jones, 17 Id. 483.

MATTOCKS v. LYMAN ET AL.

[18 VERMONT, 98.]

DECLARATION NEED BE SPECIAL, ONLY WHERE THE CLAIM SOUNDS IN DAMAGES, and is for the non-performance of a special contract; but for not paying over money, a recovery may be had under the general counts. SPECIAL DEMAND IS NOT GENERALLY NECESSARY, where the recovery may be had under the general counts.

PARTY'S BOOKS ARE EVIDENCE OF WHAT POSITIVELY APPEARS ON THEM ONLY, either of debt or credit, but are not evidence of a negative character. WHERE BOOKS ARE ADMITTED TO SUPPORT the counter claim of defendant, plaintiff may use the same books to show payment or settlement of it. ADMISSIONS OF A PARTY GIVEN IN EVIDENCE MUST BE IN FULL; that is, the whole declaration of the party made at one time must be received and weighed, but the jury are at liberty to believe one portion and disbelieve the other.

ASSUMPSIT, for work and labor, goods sold and delivered, on the money counts. In the declaration were also several counts upon a special contract. It was alleged that plaintiff and defendants entered into an agreement, the former to purchase and the latter to sell wool, and to divide the profits, and that the wool having been purchased and sold at a profit, defendants re

fused to pay plaintiff his share. Defendants pleaded the general issue, and also a set-off. Plaintiff proved what the special contract was, and the amount of wool bought and sold and the price. They also proved, by a witness, that defendants had said in his hearing, that plaintiff had been buying wool for them under a contract, but that the verdict in the former trial was too large, and that defendants said they had paid plaintiff all they owed him. Witness might be mistaken as to the amount of the conversation, but thought not. Plaintiff objected to the testimony, but the objection was overruled. Defendants offered their books in evidence to show a settlement with plaintiff, and also to sustain the plea in offset. For the former purpose the court refused to admit them, but for the latter, did admit them in evidence. The court instructed the jury that the declarations of the defendants were to be taken and weighed by them, and that they need not give the same weight to one part as to another; that though defendants' books might not be received in evidence to prove a settlement, they might, as the defendants had themselves given them in evidence, be used by plaintiff to preclude them from a right to recovery on the plea of offset; and that if defendants had received their pay for the wool sold, plaintiffs might recover on the general counts. The same case was once before appealed to the upper court (see opinion), upon the point as to whether recovery could be had upon the general counts and the necessity of demand.

C. D. Kassan and A. Peck, for the defendants.

D. M. Smalley and J. M. Shafter, for the plaintiff.

By Court, REDFIELD, J. 1. In regard to the right of the plaintiff to recover in this action upon the general counts and the necessity of a demand, nothing more need be said, than was said in this case, as reported in 16 Vt. 113.

2. We do not perceive that any improper use was made of the defendants' books in the course of the trial. They could not be received as evidence in regard to the plaintiff's claim, if they contained nothing concerning any such account. A party's books are never evidence of a negative character, to rebut a presumption or certainly not ordinarily-but only in regard to matters which do positively appear upon them, either of debt or credit. And certainly, if the books were admitted in support of the defendants' counter claim, it was competent for the plaintiff to show, by the same books, the payment or settlement of that claim.

3. In regard to the admissions of the defendants, the judge who tried the case, certainly put the matter upon the same ground, on which such admissions have always been received, since I have known anything of the course of jury trials in this state, and upon the same ground that it is put in the English practice that is, that the whole declaration of the party made at one time, as well that in his favor, as that which is against him, must be received and weighed; but the jury are at liberty to believe one portion and disbelieve the other, as they are all evidence. This undoubtedly puts it in the power of the jury to do great injustice, as it is always in their power to do—and hence the great responsibility which rests upon jurors, and upon the judge, often, who presides at such trials; but such matters can not be revised in this court.

Judgment affirmed.

THE PRINCIPAL CASE IS CITED to the point that if a contract contain nothing special, except as to the time and mode of payment, and the time has expired, there is no necessity of declaring specially, in Perry v. Smith, 22 Vt. 305, arguendo; to the point that even where there has been a special agreement, the terms of which have been performed so that nothing remains but the duty to pay over the money, the common counts will lie, in Groot v. Story, 41 Id. 538, and Kent v. Bowker, 38 Id. 152; and in State v. McDonnell, arguendo, in reference to the weight, acceptance, or rejection of admissions. PAY FOR LABOR PERFORMED UNDER SPECIAL CONTRACT MAY BE RECOVERED UNDER COMMON COUNTS where the contract is fully performed so that the money is due, and nothing remains but to make payment: Cummings v. Nichols, 38 Am. Dec. 501.

BOOKS OF ACCOUNT, ENTRIES IN, AS EVIDENCE: See White v. St. Philip's Church, 39 Am. Dec. 125, and note on page 128, where the cases on this subject in this series are collected.

CUNNINGHAM v. BROWN.

[18 VERMONT, 123.]

ACTION AGAINST A WITNESS FOR COMMITTING PERJURY whereby plaintiff lost a former action, can not be sustained.

PLAINTIFF alleges, that in the case of Wainright v. Cunningham et al., the defendant swore to a false deposition, knowing it to be so; that thereby judgment was rendered against the defendant therein, who is the plaintiff herein, whereby he, plaintiff, suffered damage. Defendant demurred. Demurrer was sus

tained, and plaintiff excepted.

D. A. Smalley and E. J. Phelps, for the defendant.
Briggs and Underwood, for the plaintiff.

By Court, REDFIELD, J. The effect of a recovery in this action must undoubtedly be a re-examination of the merits of the action in favor of R. & J. Wainright against Straw and Cunningham, and must operate as a virtual reversal of that judgment. For this court here to decide that this declaration is sufficient, will be virtually to order a new trial of the former action. But the technical objection, that the same matter has been formerly adjudicated between the same parties, is avoided here by the difference of parties in the two actions. But the principle of the objection is the same, as if this case were between the same parties. It in effect leads to interminable litigation of the same facts. For it is not enough to show, in this case, that the defendant swore falsely in the former action, but damage must be shown to have resulted therefrom. In order to do this it must appear, that the testimony was material, and that it gained credit, and that this plaintiff had not then the means of disproving it, and that the defendant swore falsely knowingly; otherwise there would be no fraud-and fraud and damage must concur, in order to sustain the action. From this view of the case it will be evident, that the action can not be maintained, without virtually putting it in the power of every suitor to re-examine every suit, in which he is cast, and to try the witnesses for perjury by instituting against them a civil suit. This course of things would be as interminable, as it is in its nature intolerable. The reaBoning of Kent, C. J., in Smith v. Lewis, 3 Johns. 157 [3 Am. Dec. 469], is fully in point; and that case is so nearly, in principle, the same with this case, that it may well be esteemed an authority, by which this case should be governed. But the case of Damport v. Sympson, Cro. Eliz. 520, is precisely the same as this case. Eyres v. Sedgewicke, Cro. Jac. 601, is much to the same purpose. And the fact, that the action is one of new impression, as is said of the case of Damport v. Sympson, is reason enough, why it should not be sustained, except upon the most satisfactory grounds.

I have never known any case like the present attempted to be maintained. The one most analogous to it, which I now recollect, was one in the county of Windsor, many years since, wherein it was attempted to maintain an action upon the case against one for forging a note against a deceased person and obtaining an allowance by commissioners, whereby the plaintiff's dividend was lessened. The court, upon very full hearing, considered that the action would not lie, although there was clearly fraud and damage. 1. It would be re-examining the

decision of the commissioners. 2. It would be trying and punishing the defendant for a crime in the form of a civil action. 3. It was thought, in that case, that the act, in its direct operation, was too remote to be any just ground of action in favor of another creditor to the estate. The two first grounds of that determination apply with equal force to this.

Judgment affirmed.

• The settled policy of the law forbidding that a matter once adjudicated shall be again drawn in issue while the former adjudication remains in force, does not permit the prosecution of an action for obtaining a judgment by false and fraudulent practices or by false and forged evidence:" Freeman on Judg. ments, sec. 289. "Because it necessarily involves an attack upon the correctness of a former adjudication, and would tend to encourage infinite litigation, the defendant in an action upon a judgment is never permitted to show that it was procured by perjury:” Id., sec. 435. Nor can a judgment be assailed in equity on the ground that a witness was guilty of perjury: Id., sec. 503.

CRANE V. THAYER.

[18 VERMONT, 162.]

DEPOSITIONS TAKEN IN ANY OF THE UNITED STATES will be received, provided they have been taken by competent authority.

OFFICER TAKING DEPOSITION IS PRESUMED TO HAVE AUTHORITY to do so, until the contrary appears.

EVIDENCE TO IMPEACH THE CHARACTER OF A WITNESS should be confined to his general character for veracity, and inquiries as to particular instances of moral delinquency are not admissible; hence, to impeach a witness, evidence that he was a notorious counterfeiter was properly rejected. DEED ABSOLUTE ON ITS FACE will not be construed a trust deed, at the instance of the grantee, where he has taken possession of the property, treated it as his own, and given evidence of payment for it. The grantor is entitled to a fair price for it.

ASSUMPSIT to recover the price of certain property alleged to have been sold by the plaintiff to defendant. Plea, general issue. In regard to the land mentioned in the opinion the court below instructed the jury, that though it may have been conveyed in trust to defendant, still if he had not paid for the land, and had uniformly treated it as his absolutely, and not performed the trust, they must allow plaintiff its just value. In regard to the hay the court instructed the jury, that plaintiff was entitled to recover for the actual amount sold, at its true value, regardless of the bill of sale. Verdict for plaintiff. Defendants excepted. Brown, Saxe, and A. O. Aldis, for the defendant.

Smalley, Adams, Hoyt, Childs, and Royce, for the plaintiff.