by the judgment and proceedings thereon on the scire facias on the mortgage at No. 57, November term, 1899, of the court of common pleas of Washington county. At the instance of Tenan, however, prior to the allowance of his claim by the orphans' court, the common pleas struck from its records said judgment and the decree approving the sheriff's special return on the levari facias issued on the judgment, and the action of that court has this day been affirmed by this court. 54 Atl. 172. It therefore follows that Tenan's claim was properly allowed out of the fund for distribution by the orphans' court. This court so held in an exhaustive opinion by the late Chief Justice Green in Smith's Estate, 194 Pa. 259, 45 Atl. 82. The right of the appellee to have payment of his claim from the estate of Stephen Smith, deceased, was adjudicated in that case, and, for the reasons given in the opinion, this decree must be affirmed. It is time that litigation arising out of the settlement of this estate should cease. Eight years of persistent effort in the courts of Washington county and in this court should afford ample opportunity to have the rights of the interested parties fully and finally determined. "Interest republicæ ut sit finis litium."

The decree is affirmed.

(204 Pa. 317)

VANKIRK et al. v. PATTERSON et al. (Supreme Court of Pennsylvania. Jan. 5, 1903.)

RES JUDICATA.

1. Where an owner of land, who has given an option of sale, sues to have the option set aside for default, and the case has been tried on the merits, and a decree rendered against the complainant, the controversy is res judicata, and on petition for an issue to quiet title under Act June 10, 1893 (P. L. 415), where the answer shows that the controversy has been adjudicated, the issue is properly denied.

Appeal from court of common pleas, Greene county; Crawford, Judge.

From

Action by Edward Vankirk and another against J. G. Patterson and another. an order refusing an issue, plaintiffs appeal. Affirmed.

The following is the opinion of the court below:

"The petitioners for this rule are asking for an issue under the act of June 10, 1893 (P. L. 415), to try a matter already adjudicated between themselves and the respondents. A bill in equity was filed in this court some time since by the petitioners, asking for the surrender and cancellation of a contract for the sale of the Pittsburg or River vein of coal in and under the petitioners' land in Morgan township, this county. To this bill the respondents answered, and the case was heard in regular order, and followed with a decree dismissing the bill at plaintiff's cost. The case was then carried on I appeal to the Supreme Court, where the de

cree of this court was affirmed. See Vankirk v. Patterson, 201 Pa. 90, 50 Atl. 966. The question determined there was whether or not the sale of the coal was made under the optional contract referred to in this petition. It was held that the contract was binding, and that the respondents had not forfeited their rights under it. Thus the subject-matter sought to be brought up by this rule is res adjudicata. Neither this nor the appellate court undertook in that proceeding to say whether or not the act of June 10, 1893, was applicable to a case of this kind, as that question was not raised. My own view is that that act was only intended to apply where one not in possession of land disputes or denies the right of title or right of possession of the person or persons in possession claiming to hold the same by right of title. In short, the object of the Legislature was to provide a simple and speedy remedy to quiet title where adverse claims of title were being asserted against the party in possession. It was not intended to abolish or supersede equity procedure, or the existing remedies for the determination and enforcement of contracts. One who puts on record a contract of sale, or an optional agreement which he may make absolute as a contract of sale, is not thereby setting up an adverse title or right against his vendor in possession. He is simply giving constructive notice of his contractual relations under which he may become the owner of that title. In truth, he affirms the title when he is willing to step in and pay for it. He claims by and through his vendor's title, and not adversely to it. I cannot think the act of 1893 was meant to cover a case of this character. But whether it was or not would not help the petitioners now.

They elected

to come into a court of equity, and prosecuted their case there on its merits to final judgment in the court of last resort. While that judgment stands, they cannot be heard in a different proceeding in this court on the same facts. The rule will therefore be discharged."

Argued before McCOLLUM, C. J., and MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

James E. Sayers and H. J. Ross, for appellants. A. F. Silveus and Willis F. McCook, for appellees.

MITCHELL, J. In Ullom v. Hughes, 54 Atl. 23, it is held that a controversy between vendor and vendee as to compliance or default by the latter in regard to the terms of an option may be the subject of a remedy by rule and issue under the act of June 10, 1893 (P. L. 415). But it was also there held that the act did not supersede or affect any of the former remedies, but only supplied one that was cumulative or additional. While, therefore, the controversy set up by the petition in the present case is prima facie

within the statute, yet there is nothing in the act or in the construction given to it in Ullom v. Hughes to prevent the application of the general rule of res adjudicata. Where there are concurrent remedies, a trial on the merits in any one of them is conclusive of the controversy in all the others. Such was the case here. The present petitioners filed a bill on the equity side of the court to have the option set aside for default by the defendant. The case was heard on the merits, and a decree made against the plaintiffs. Vankirk v. Patterson, 201 Pa. 90, 50 Atl. 966. The issue was the same that was sought to be raised again by the present petition, and the court was right in holding the decree a bar on the ground of res adjudicata.

It is argued by appellants that the issue should have been awarded, and the question of the former decision raised by plea, and Del. & Hudson Canal Co. v. Genet, 169 Pa. 343, 32 Atl. 559, is cited in support. In that case it was said: "And if it should turn out at the trial that the dispute was not over facts, but over the law resulting from them, this would not affect the remedy any more than it would affect an equitable ejectment. The right to the issue having been shown by the possession and the denial of title, the issue goes on to trial on the facts and the law, as in other cases." But it was not meant that the court must go through the vain form of awarding an issue where the facts before it show that there is no dispute now existing. The argument proves too much, for, if pushed to its logical conclusion, it would compel the court to grant an issue, although a similar issue had already been granted, tried, and determined. In the present case the answer set up the prior adjudication of the same cause of action. There was no denial of the identity of the issue asked with that already adjudicated. All the facts appeared undisputed on the record, and the court was as fully in position to render judgment as it would have been with the case before a jury on the plea of former adjudication. Had there been a replication raising any question of fact, or had the facts not appeared affirmatively on the record, the case would have been different, and would then have been proper for an issue, even though at the trial it should turn out, as said in Canal Co. v. Genet, that the real question in dispute was one of law only.

Judgment affirmed.

(75 Vt. 249)

BROCK v. BROTHERHOOD ACO. CO. (Supreme Court of Vermont. Washington. March 6, 1903.)

LIFE INSURANCE-HAZARDOUS OCCUPATIONSCATTLE TENDER-MEANING OF TERM-AMBIGUOUS CLAUSES-RULE OF CONSTRUCTION. 1. Where a life insurance policy provided that, if the holder should be killed while en

gaged in an occupation classed by the company as more hazardous than that written in the policy, the amount of recovery should be diminished, and the occupation of "cattle shipper and tender in transit" was so classed, the term did not include tender of horses in transit.

2. The rule that members of a mutual life insurance company are charged with knowledge of its by-laws does not require that such companies be excepted from the rule that ambiguous clauses in an insurance contract should be construed strictly against the insurer.

Exceptions from Washington county court. Special assumpsit by James W. Brock, as administrator of Fred W. Frink, deceased, against the Brotherhood Accident Company. From a judgment for the plaintiff, the defendant brings exceptions. Affirmed. Defendant's motion for reargument overruled.

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

Dillingham, Huse & Howland and H. W. Kemp, for plaintiff. George W. Wing and John H. Senter, for defendant.

MUNSON, J. The plaintiff's intestate was insured as a barber proprietor, not working. The policy provided that, if the holder should be fatally injured "while temporarily or otherwise engaged in or exposed to a hazard pertaining to an occupation or employment classed by the company as more hazardous" than that written upon the policy, the company's liability should be only that "provided for the class in which such more hazardous occupation or exposure is rated in the manual of the company." The occupation of "cattle shipper and tender in transit" is rated in the manual as more hazardous than that for which the deceased was insured. The deceased was killed while traveling in a box car in charge of a horse in transit. If this employment is not classed in the manual as more hazardous than the insured's usual occupation, this alone will deprive the company of the benefit of the clause relied upon, and it will not be necessary to consider the question presented by the further facts contained in the agreed statement. So the question for determination is whether the term "cattle," as used in defendant's policy, should be construed to include horses. Lexicographers give the word two meanings-one, restricted to domestic bovine animals; the other, covering any live stock kept for use or profit. The first is ordinarily given as its common meaning; the second, as a special signification, less frequent now than formerly. The meaning of the word has come in question in a few reported cases. In Brown v. Bailey, 4 Ala. 413, it was held that a declaration for an injury to cattle was not supported by evidence of an injury to mules, as the term did not, in common parlance, include mules. In Decatur Bank v. St. Louis Bank, 21 Wall. 294, 22 L. Ed. 560, the question arose upon the plaintiff's guaranty of a dealer's drafts

2. See Insurance, vol. 28, Cent. Dig. § 1870.

against shipments of cattle, and it was held that hogs were included in the term "cattle." The court referred to several English cases where the word was given its broader signification, as showing that this meaning was permissible, and considered that this should be taken as the meaning of the parties, in view of the purpose of the contract and the course of dealing apparent from the evidence. In cases involving the construction of statutes relating to fences, it seems generally to have been held that the word applies to all domestic quadrupeds. 5 A. & E. Ency. Law (2d Ed.) 771. But in Enders v. McDonald, 5 Ind. App. 297, 31 N. E. 1056, where a statute of this character was considered, the court reached a contrary conclusion; saying that the word, in its ordinary sense, as used in this country, meant only beasts of the bovine genus It is certain that in this country the word "cattle" is not ordinarily used as including horses, and it should not be construed to include them as used here, unless the court can properly infer from the purpose of the provision that the parties so intended. It may be that the protection sought by the company would require an application of the provision to horses as well as cattle, but this alone will not justify an inference of mutual understanding. In the construction of insurance policies, it is considered that, inasmuch as the company prepares the contract and selects the language used, provisions restrictive of the general obligatory clause should be construed strictly against the company. Billings v. Metropolitan Insurance Co., 70 Vt. 477, 485, 41 Atl. 516. We think that, in determining the language of a provision like this, the company should select words that will accomplish its purpose without their being given any unusual meaning. Judgment affirmed.

On Rehearing.

The defendant seeks a rehearing on the ground that the rule of construction applied in arriving at the decision is not applicable to mutual companies. It is held in the cases to which we are referred that the members of a mutual company are charged with knowledge of its rules and regulations. This is undoubtedly an established doctrine, but it comes short of sustaining the defendant's contention. One may be charged with knowledge of a by-law, and yet be entitled to a favorable rule regarding the construction of its ambiguous terms. The reason given for this rule is as applicable to the contracts of companies like the defendant as to those of other companies. It will be seen from the list of cases cited in 3 Berryman's Insurance Digest, § 3012, that the rule has been applied to companies of every class, and we have nowhere found any suggestion that its application in the case of mutual companies is inconsistent with the doctrine above stated. We think a further hearing is unnecessary. Motion overruled.

54 A.-12

SCOVILLE v. BROCK.

(75 Vt. 243)

(Supreme Court of Vermont. Washington. March 6, 1903.)

GUARDIAN AND WARD-FINAL ACCOUNTINGAPPROVAL OF WARD-CONCEALMENT-DECREE-RES JUDICATA.

1. Where a bill to impeach the final account of complainant's former guardian alleged that complainant's approval of the account was obtained by fraud and concealment, and was not binding on complainant, but also showed that the account was approved and allowed by the probate court, and there was no attack on the validity of the decree of allowance, the bill was demurrable, because showing that the decree was res judicata of complainant's rights.

2. An allegation in a bill by a ward to impeach the final account of his former guardian that the guardian did not inform complainant of certain of his rights, and thereby procured complainant's approval of the account, was not equivalent to an allegation that the decree was made because of the orator's approval, and without inquiry, so as to constitute a direct attack upon the validity of the decree itself.

Appeal in chancery, Washington county; Watson, Chancellor.

Bill by William L. Scoville against James W. Brock. From a decree sustaining the defendant's demurrer to the bill, the orator appeals. Affirmed.

Argued before ROWELL, C. J., and TY. LER, MUNSON, START, STAFFORD, and HASELTON, JJ.

William L. Scoville and Edward H. Deavitt, for appellant. M. E. Smilie, for appellee.

MUNSON, J. The bill alleges, in substance, that the defendant, as guardian of the orator, received certain property decreed to the orator as legatee; that among this property were certificates representing shares of the capital stock and certain debenture bonds of various corporations located without the state; that when the defendant received these shares and bonds they were worth, and could readily have been sold for, more than the par value thereof; that the capital stock and debenture bonds of a foreign corporation are not a proper selection for the investment of trust funds, and that it was the duty of the defendant to refuse this property, or. having received it, to be diligent in disposing of it; that the defendant remained the or ator's guardian until the 28th day of July, 1894, when the orator became of age; that on the 30th day of July, 1894, the defendant presented to the probate court a final account of his guardianship, in which said shares and bonds were returned as assets in his hands; that on the same day the orator indorsed on said account a certificate that he had examined and approved it, and that on the 1st day of August following the probate court accepted and allowed said account, and ordered that said securities be delivered to the orator; that the securities were transferred to the orator immediately thereafter; and that most of them were then wholly valueless. The bill complains that it was the duty of the defendant, in settling his ac

counts with the orator, to disclose to him any facts that might be necessary to inform him as to the full extent of his legal rights and remedies, and to refrain from any deception in obtaining the orator's approval of his final account, and from any deception intended to prevent the orator from calling him to account for his breach of trust, but that the defendant wholly disregarded his duty in these respects, and failed to inform the orator that after four years from the date of said decree the orator would be barred from having a further accounting and from proceeding against the surety on the defendant's bond, and that after eight years no action could be maintained against the defendant as principal on said bond; that defendant used undue and improper influence to induce the orator to approve said account, in that he gave the orator false and fraudulent information, on which the orator relied, and in that he failed to give him the facts necessary to inform him of the extent of his legal rights and remedies; that defendant did not inform the orator that he had a right to object to receiving the property in the form in which it was tendered, but might demand cash in place of it, and, in case of a refusal upon such demand, might have a hearing before the probate court on the questions involved; that the defendant, with intent to prevent the orator from calling him to account, informed the orator that the investments had been made before the property came into his hands, that he was under no duty to change the investments, that he had used due care and diligence in looking after the estate, and that the loss was occasioned by a depreciation of the securities without his fault; that the orator was induced to approve the account and accept the property by his reliance upon these statements, and his belief that the defendant had disclosed to him all the facts necessary to inform him of his rights and remedies, and that the defendant had committed no breach of trust for which he could be called to account; and that his approval and settlement had no effect in bar of his relief, because of this fraudulent procurement. It will be seen from this statement that the accounting is treated as a settlement between the guardian and the ward, and that the orator's approval of the account as rendered is looked upon as the barrier to be removed. But the bill shows that the account was presented to the probate court, and was allowed by it; that the account was so framed as to show what the balance in the guardian's hands consisted of; and that the securities on hand were decreed to the orator. It thus appears that the securities in question were brought to the knowledge of the court, and within the scope of its decree. Without considering the sufficiency of the allegations which charge that the orator's approval was procured by fraud, it is to be noticed that there are no allega

tions which carry the effect of the alleged fraud into the decree, by showing that the action of the court was based upon the approval. For all that appears, the decree may have been based upon the same inquiry and consideration that would have been had in the absence of any approval. The allegation that the defendant did not inform the orator that he had a right to demand cash, and, in case of a refusal, have a hearing upon the questions involved, does not meet the objection. This is not an allegation that the decree was made because of the approval and without inquiry. Conceding, then, that the orator is not barred by his approval, we come to a consideration of the effect to be given to the decree in a proceeding which does not seek to impeach it. V. S. 2810, upon the construction given it by both parties, makes this final allowance conclusive between them after the lapse of four years. But independent of any statute, a decree of the probate court is conclusive as to all matters which appear from the records to have been adjudicated, except in proceedings brought directly to correct or annul it. Rix v. Smith's Heirs, 8 Vt. 365. An accounting like the one in question is to be distinguished from the accounts rendered for the information of the probate court during the ward's minority. The final settlement of a guardian's account, made on notice after the ward becomes of age, is within the general rules relating to the conclusiveness of judgments. 2 Black on Judg. § 644; 15 A. & E. Ency. Law (2d Ed.) 115; Garton v. Botts, 73 Mo. 274. We have seen that the record of this accounting brings the matters complained of within the scope of the decree. So the questions raised regarding the defendant's administration of his trust are res judicata, and the determination is conclusive as against this bill.

But the orator says that his bill proceeds upon the theory that it would be inequitable to permit the defendant to set up the decree of the probate court as a defense to the accounting prayed for, for the reason that the defendant obtained the decree through fraud; and it is argued that the defendant is equitably estopped from pleading the decree. Conceding that the adjudication can be thus put aside, this but brings us back to the question already considered. The claim, as here stated, stands upon the assertion that the decree was procured by fraud; and we have seen that the allegations that the orator's approval of the account was so procured are not followed by averments sufficient to carry the effect of that approval into the decree. The allegations of the bill may all be true, and yet the account have been disposed of upon a full hearing of the questions now presented, and irrespective of the approval. We therefore hold the bill insufficient on demurrer, without further inquiry. Decree affirmed and cause remanded.

EMINENT DOMAIN-FLOWING LANDS-ERECTION OF DAM-GENERATION OF ELECTRICITY-POWER FOR RAILROAD-PUBLIC USE-INTEREST OF PETITIONER-STATUTES-RIPARIAN OWNERS-RIGHTS OF FLOWAGE.

1. V. S. c. 159, enacts that one who desires to erect or raise a dam to obtain water therefor, and thereby flow the lands of another, may secure the right to do so if commissioners or the court shall find that the flowing of the lands will be of "public benefit." A petition for the appointment of commissioners, etc., showed that petitioner owned a dam, which he desired to raise in order to generate electricity for the operation of a railroad. Held, that the power of eminent domain could not be invoked on the ground of public use, since, while the railroad must serve the public, there was nothing binding petitioner to serve the railroad or to give equal advantages to all.

2. The power of eminent domain could not be invoked on the theory that, if petitioner should fail to serve the railroad or give equal advantages to all, a forfeiture would be worked, since the condition, which make a use public must exist at the time of the taking.

3. A right to flow the land of others cannot be secured, under the statute, in the absence of any showing of a public use, on the theory that the provision is not a right of eminent domain, but merely a statutory regulation of rights common to the riparian owners.

Exceptions from Chittenden county court; Start, Judge.

Petition by Robt. Avery, as trustee, against the Vermont Electric Company and others, for the appointment of commissioners in eminent domain proceedings under V. S. c. 159. From a judgment dismissing the petition, petitioner brings exceptions. Affirmed.

Argued before ROWELL, C. J., and TYLER, MUNSON, and STAFFORD, JJ.

Edmund C. Mower, for petitioner. W. L. Burnap and A. G. Whittemore, for defendants.

MUNSON, J. The petition alleges that the petitioner is the owner in trust of a certain mill property on the Winooski river, and that he desires to raise to the height of 50 feet a dam now existing on said property, and proposes to use the water power so provided in generating electricity for the operation of the Burlington & Hinesburgh railroad; shows further that the raising of this dam will flow the lands of other owners, and that the petitioner is unable to agree with them as to the damages they will sustain; and prays that he may be permitted to raise said dam, and for the appointment of commissioners to ascertain the damages caused thereby. It was moved that the petition be dismissed because it did not appear from the allegations that the flowage would be a public benefit, or such a public benefit as would warrant the taking under the constitution. The county court sustained the motion. No objection is taken as to the manner in which the question is raised. It is provided in chapter 159

of the Vermont Statutes that one who desires to set up or continue a mill or manufactory on his land, and to erect or continue or raise a dam to obtain water therefor, and thereby flow the lands of another person, may secure the right to do so in the manner there provided, if commissioners appointed for that purpose, or the court itself, shall find "that the flowing of the land as proposed will be of public benefit." For the purposes of this discussion, it will be assumed, without consideration, that a plant for the generation of electricity is a manufactory, within the meaning of the statute.

The first question for consideration, as stated by the petitioner, is whether the application of water power to the generation of electricity for use in the operation of a railroad is such a public benefit as will justify an exercise of the right of eminent domain under the provisions of this chapter. But this statement of the inquiry is hardly broad enough for our purpose, for this assumes that the statute names a constitutional ground of condemnation, and proposes to test the petitioner's right by inquiring whether his case is within its terms. A more accurate statement of the question would be whether this is a public use, within the meaning of the constitution, for no finding of public benefit under the statute can avail unless the statute and the constitutional provision are brought together by construction. The argument of the petitioner is an earnest plea for a liberal construction of the term "public use." It is evidently considered that the term "public benefit" is a better expression of what is meant, and cases are cited where it is said that "public use" is synonymous with that term. We are also referred to the utterance of this court in Re Barre Water Company, 62 Vt. 27, 20 Atl. 109, 9 L. R. A. 195, where it is said that the power of condemnation "must have some degree of elasticity, that it may be exercised to meet the demands of new conditions and improve ments, and the ever-varying and constantly increasing necessities of an advancing civilization." It is urged that the use of electricity has become so important to the prosperity and development of the state that the utilization of our water powers for its production ought to be regarded as a public necessity. We have in the petitioner's brief an extended presentation of the views expressed by other courts in dealing with the question of public use. In considering these opinions, it must be remembered that some states have constitutional provisions much broader than ours, and that even a slight variation of expression may be influential in determining the line of decision. It is true, nevertheless, that some of the cases cited proceed upon grounds that afford support to the petitioner's contention. In fact, the reasoning of some of them comes dangerously near the argument that it is for the public benefit to have property of this character in