S. W. 1040; Steiner v. Lenz, 110 Iowa, 49, 81 | unsound. The decree settling the account of N. W. 190; Adler v. Van Kirk Co., 114 Ala. the executors was a final one. Scoville v. 551, 21 South. 490, 62 Am. St. Rep. 133; 2 Brock, 75 Vt. 243, 54 Atl. 177; Probate Court Daniell, Ch. Pl. & Pr. 973, 974; Seton on De- v. Vanduzer, 13 Vt. 135; Rix v. Heirs of crees (Heard's Ed.) 774, 775. That the con- | Smith, 8 Vt. 365; Probate Court v. Merriam, stitutional full faith and credit is given by the courts of one state to the judgment of the courts of another state when they are accorded the faith and credit which they receive in the state in which they are rendered is beyond all controversy. Cole v. Cunningham, 133 U. S. 107, 10 Sup. Ct. 269, 33 L. Ed. 538; Board of Public Works v. Columbia College, 7 Wall. 521, 21 L. Ed. 687; Suydam v. Barber, 18 N. Y. 468, 75 Am. Dec. 254; Engel v. Scheuerman, 40 Ga. 206, 2 Am. Rep. 573. Judgments and decrees by stipulation are now entered as a matter of common practice in cases of the very highest importance with the understanding of parties that such judgments, when the court has jurisdiction of the matters covered by the stipulation, render such matters res judicata, and that such judgments are entitled to the faith and credit of judgments in general in every state of the Union. It is doubted that at this day any court of this country would hold that the mere fact that a judgment or decree is entered upon a stipulation detracts anything from its force as a domestic adjudication or disentitles it to full faith and credit as such in the courts of the other states. Certainly this court does not so hold, but holds the direct opposite of that proposition. In the Railroad Case, 50 Vt. 500, which has made necessary the discussion on this point, the court held that the consent decrees and orders which there were under review were "beyond the judicial function of the court"; and so, without considering the grounds of such holding, it is clear that what was said in that case in diminution of the force and effect of consent decrees and judgments, said in connection with references to ill-considered dicta and to anomalous, distinguishable, or discredited cases, was unnecessary to the decision of the case. The law of this state with respect to consent judgments and decrees is as it was declared to be in Pelton v. Mott, 11 Vt. 148, 34 Am. Dec. 678, and is in accord with the law of England and with that of the bestconsidered decisions of the courts of last resort in this country as has been herein indicated. It is, in effect, urged on behalf of the children, other than Charles P. and Susan, that the judgments in the settlement of the final account of the executors and the stipulation in the one case and the indorsed assent in the other conclude nothing on the ground that, notwithstanding such stipulation and assent and the judgments in accordance therewith, the matters covered thereby would still be open to determination spon the distribution of the estate at the termination of the trust; that is, when the widow reached 8 Vt. 234. The trustees were the first takers of the estate left after the payment of debts, and the distribution by which they took was a final distribution so far as the executors were concerned. The fact that in a future year the trust estate was to be distributed did not have the effect to postpone the final settlement and distribution which the executors were to make. If the final settlement of the executor's account could be postponed 9 years by reason of a gift in trust, then it might be postponed 25 years, or an indefinite time. In any view which it is possible to take of the case, the settlement of the executors' account and the turning over of the residue of the estate to the trustees was in respect to the executors a final settlement and distribution. Both the executors and the trustees made from time to time advance payments in the nature of loans to some of the children. On such advance payments the probate court in settling the account of the trustees charged simple interest at 6 per cent. from the time of the respective payments. There is nothing on either brief presented to this court which challenges the correctness of the course of the probate court in this respect, but the matter was somewhat discussed in oral argument. These payments were in the nature of a partial distribution, and so it was for the court on final distribution to see that these advance payments did not work inequality. Walworth's Est. v. Bartholomew's Est., 76 Vt. 1, 56 Atl. 101. A child who drew out, let us say, $1,000 in 1900, got more than a child who drew out $1,000 in 1904, for in the meantime the $1,000 first drawn out might have been on interest. The equalization required by the law and by the provisions of the will requir ed the computation of interest on these advance payments by executors and trustees. and, since the case is barren of anything to show that the rate of interest should have been other than 6 per cent., it was proper for the court to compute interest at the legal rate. Other questions of interest must have entered into the final distribution ordered and decreed by the probate court, but it does not appear that they were not properly dealt with. December 8, 1906, the probate court rendered its final decree distributing the trust estate as of October 19, 1906. It decreed to each of the children, other than William A., a sum sufficient to make each of them equal with the said William A., that is: To Charles P. Harris, $45,370.23; to Martha V. Newell, $11,145.39; to the estate of Harriet L. Harris, $33,916.64; to Nellie S. Bowles, $11,730.29; to Mary G. Harris Sweeney, $24,230.80; the time of the order of distribution, the daughter Mary G. Harris bore the name of Sweeney, and Susan Mather bore the name of Waterman in consequence of their respective marriages subsequent to the time when they were named in the will. The probate court further ordered and decreed that all the residue of the estate, except the $50,000, referred to in this opinion at the outset, and the home place, furniture, and other personal property connected therewith, as to which there was a special provision in the will, be divided equally among Charles P. Harris, Martha V. Newell, William A. Harris, the estate of Harriet L. Harris, Nellie S. Bowles, Mary G. Harris Sweeney, and Susan Mather Waterman. Some details in respect to the partition were provided for by the order and decree, but these need not be mentioned, as no question is made about them, and as they appear in full of record. In the county court it was discovered that there was an error in the computation of the a nount to be paid to Susan Mather Waterman before the distribution of the residue, a mistake about which counsel are agreed, and it was adjudged that the sum to be paid to her, to put her on equality with William A. Harris as of the time to which decree of the probate court related, snould be $39,123.04, instead of $38,123.04. In all other respects the county court affirmed the decree of the probate court. All claims that the action of the county court was incorrect, whether made in the briefs of counsel or in oral argument, have been considered, with the result that the judgment of the county court is affirmed. Let the case be certified to the probate court. (82 Vt. 222) TARBELL & WHITHAM v. GIFFORD et al. (Supreme Court of Vermont. Windsor. May 17, 1909.) 1. EVIDENCE (§ 370*) DOCUMENTARY EVI DENCE-AUTHENTICATION. Proof that a paper, purporting to be the constitution of an unincorporated society, was found and kept in its archives and acted under as a constitution, is sufficient to make it admissible in favor of one seeking to enforce the liability of members without further proof of adoption by the society. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 1562; Dec. Dig. § 370.*] 2. EVIDENCE (§ 352*) DOCUMENTARY EVIDENCE-AUTHENTICATION. The constitution of an unincorporated society is admissible in evidence as a record of the society, though not recorded in its books. [Ed. Note. For other cases, see Evidence, Dec. Dig. § 352.*] BERS FOR DEBTS. A judgment against an unincorporated so- Cent. Dig. §§ 26-28; Dec. Dig. § 16.*] Exceptions from Windsor County Court; See, also, 79 Vt. 369, 65 Atl. 80. Darling & Darling and Hunton & Stickney, for plaintiff. N. L. Boyden and Davis & Davis, for defendants. what is now section 1534 of the Public StatHASELTON, J. This is an action under utes to enforce an alleged liability of two of the defendants, Albert Waterman and Fayette Rogers, as members of the Union Agricultural Society, an unincorporated association. The evidence tended to show that in 1897 Benedict for damages caused by its negli the above-named society became liable to one gence, and that in November or December, 1898, the society employed the plaintiffs as attorneys to defend it in a suit brought by said Benedict. The evidence further tended to show that on June 20, 1904, the plaintiff recovered judgment before a justice against the society for $200, and costs on account of services rendered in the course of their employment, and that on the judgment, and be fore this suit was brought, an execution had issued and had been returned unsatisfied in part. The main question in this case was whether Waterman and Rogers were members of the society at the time when the liability which was merged in the judgment arose. Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 Atl. 938. And see this case as formerly pre sented to this court, 79 Vt. 369, 65 Atl. 80. On trial the plaintiffs offered in evidence a paper purporting to be the constitution of the society. The defendants objected on two grounds. The first was that no proof had been produced of an organization of any so- | ing one dollar which shall entitle such person ciety that had adopted said ostensible consti- to membership for one year with the privitution, and the second was that the paper lege of exhibiting at the annual fair and of had never been recorded in the record books voting at all meetings and elections of the of the society as its constitution. The objec- society and shall be entitled to one ticket of tion was overruled and an exception taken. admission, and the membership shall termiHowever, one Wallace N. Swan, who, as ap-nate at the annual meeting and to be entitled peared, was a member of the society and its to vote at said meeting he shall pay or pledge secretary from 1888 to 1899, and later, testi- to pay one dollar." There was no evidence fied that the paper offered was the constitu- tending to bring home to either defendant tion of the society in question, and no objec- any knowledge of the constitution of the sotion was made to the proof of that fact byciety. It appeared that both the defendants his testimony. Swan's testimony, all of were exhibitors at the society's fair held in which is referred to in the exceptions, tend-October, 1908, and that on the first day of the ed to show that the paper in question was fair they entered their exhibits at the secrefound and kept in the archives of the society, tary's office, paid $1, and received tags or and acted under as a constitution. As to the cards for their exhibits and a ticket which second ground of the objection, it is enough was headed "Membership Ticket," the privito say that what was offered was as much of lege of which so far as was indicated by the a record as it would have been had it been matter on the ticket other than the heading a bound volume. The objection made to the was admission to the fair during the days on admission of this paper was properly over- which it was held. Each of the defendants ruled. used the ticket as an admission ticket only, and surrendered it either during the fair or at its close. Each defendant claimed that he did not know that there was anything about "membership" on the ticket; that he did not intend to become a member; and that nothing was said to him about becoming a member. Some evidence tending to substantiate these claims was received. The evidence tended to show that Rogers had such defective eyesight that he could not read what was on the ticket, and that he was not informed and did not know what was on it. But during the examination of the defendant Waterman the court ruled as follows: "It is not a question whether he knew what he had or not, he ought to have known. They furnished him something that he apparently knew was an admission ticket. If he actually received one of these tickets the witnesses have described, then we hold it as binding upon him whether he knew it or not." To this ruling of the court the defendant excepted. This general ruling the court applied in the exclusion of evidence called for by various specific questions. In some instances the object of the questions and the nature of the answers expected were made sufficiently clear, and available exceptions were taken. The plaintiffs offered in evidence a book purporting to contain a record of the doings of the society at its meetings. This book was objected to on the ground that there was no evidence tending to show that it contained the records of the society under the constitution, and that it was not properly authenticated. But the witness Swan testified without objection that it was the book in which were kept the records of the society's meetings and of all its meetings, and gave further testimony tending to show the authenticity of the book. Before the close of the case, Swan testified that until he was secretary he was from the time of the organization of the society its assistant secretary. The book, or so much of it as the attention of the jury was directed to, was properly in the case, in connection with the other testimony, for the purpose of showing the organization and doings of the society. It was further objected to some parts of the book that it did not appear that the defendants knew of the meetings therein referred to, or that they ever attended any of them, or that they ever signed any by-laws, or that they knew anything about any constitution, or that the defendants had any notice of any of the meetings recorded in the book, or that the records showed any notice to the defendants or to any one. But the book was not received as tending to show any of these things. Counsel for the plaintiffs did not claim to connect the defendants with the society by anything that appeared in the book. The plaintiffs' claim was that the defendants bought membership tickets before the liability to the plaintiffs accrued, and that by so doing they became members by force of the constitution whether they knew anything about the doings of the society or not. Article 14 of the paper which the plaintiffs' evidence tended to show was the constitution of the society reads as follows: "Any person Several cases are cited to sustain these rulings of the court, but we do not find them to be in point. The rulings as to the conclusive. ness, on the question of membership, of the delivery, and acceptance of a ticket bearing the words "Membership Ticket,” irrespective of the ignorance of the purchaser that those words were there, was erroneous in the cir cumstances in which they were made. Notwithstanding the fact that the ticket was handed to the purchaser and accepted by him, the question of intent and purpose was still an open one. The defendants might show, if they could, that the tickets were delivered to and taken by them as admission tickets, that TION. STEDMAN v. O'NEIL 25, 1909.) (82 Conn. 199) posed they were nothing more than such tickets; and the intent on the part of the defendants to become members was not conclusive (Supreme Court of Errors of Connecticut. May ly proved by their acceptance of tickets conferring membership privileges, if they sup- 1. TRIAL (§ 229*) — INSTRUCTIONS — REPETIposed, and had a right to suppose, that they were getting mere admission tickets, and did In an action for the death of plaintiff's not know that they were given anything else. daughter, who was thrown from a buggy by the King v. Woodbridge, 34 Vt. 565; Cook v. Car-horse becoming frightened at a stone placed in penter, 34 Vt. 121, 80 Am. Dec. 670; Smith structed that, to recover, the burden was on a highway by defendant, where the court inv. Hollister, 32 Vt. 695; Murray v. Walker, plaintiff to establish all controverted matters by 83 Iowa, 202, 48 N. W. 1075; Konta v. Stock a fair preponderance of the evidence, and inExchange, 189 Mo. 26, 87 S. W. 969. One controverted matters, and instructed thereon at cluded contributory negligence as one of the who should purchase a ticket of admission to length, it was unnecessary to repeat the ina theatrical or other show cannot as matter struction as to the burden of proof in connecof law be made a partner in the enterprise or tion with each phase of the case. be put under an obligation to perform merely by virtue of something printed on the ticket not called to his attention and not within his knowledge. Dig. 513; Dec. Dig. § 229.*] 2. TRIAL (8 240*)—ARGUMENTATIVE INSTRUO TIONS. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 561; Dec. Dig. § 240.*] 3. TRIAL (8_252*)-INSTRUCTIONS-APPLICABILITY TO EVIDENCE. In an action for the death of plaintiff's At the close of all the evidence both parties daughter, who was thrown from a buggy by the asked to have a verdict directed, and agreed horse becoming frightened at a stone placed in that there was nothing for the jury. The the highway by defendant's servant where the court overruled the defendants' motion and stated the controlling considerations in detercourt instructed upon the principles of law, and granted that of the plaintiffs. Exceptions mining whether there was a nuisance negligentwere taken. However, as under the previously created by defendant's servant in the course rulings of the court, evidence had been im- of his employment, it properly refused a requested charge that, in determining the question properly excluded, there is no sufficient rea- of negligence, the jury should consider the orson for considering whether or not on the evi- dinary experiences of men, and that ordinarily dence as it stood the court was right in its highways have objects in them which are more final action. In the court below the defend-quested charge, while proper as argument, not or less calculated to frighten animals; the reants by a proper exception raised the ques- being proper as an instruction to guide the tion that the society of 1898, though bearing jury. the same name as that of 1897, was not the same organization, and that the society of 1898 had no authority to employ counsel to defend against the liability which accrued in 1897. We have throughout spoken of the society as though it were a continuous one, but have done this for convenience, and without prejudice to the claim under this exception. For a series of years, including the years 1897 and 1898, the society annually voted to dissolve. There was, however, evidence tending to show that, notwithstanding these votes, the society preserved its identity and went on under the same constitution, some members dropping out and others coming in. The record of the judgment in favor of the plaintiff against "The Union Agricultural Society" is referred to in the exceptions, but has not been handed to the court. That judgment is conclusive of the liability of those who were members when the liability merged in the judgment was created. Patch Mfg. Co. v. Capeless, 79 Vt. 1, 63 Atl. 938, and it may be that upon full showing it will appear that the liability of the society as it existed when, if ever, the defendants were members, was adjudicated in the justice suit. This point is left without further consideration. For error in the exclusion of evidence on the question of the membership of the defendants, the judgment is reversed, and the cause remanded. daughter, who was thrown from a buggy beIn an action for the death of plaintiff's cause of the horse, which was driven by plaintiff, becoming frightened at a stone placed in there were no circumstances to put plaintiff or the highway by defendant's servant, where his daughter upon inquiry as to whether the horse was likely to become frightened or to show that they had not used due care in investigating the horse's disposition before using it, instructions upon the effect of their failure to use due care to ascertain the horse's nature were properly refused. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 651-659; Dec. Dig. § 252.*] 4. NEGLIGENCE (§ 1*)-DEFINITION. "Negligence" is the failure to exercise that one of ordinary prudence would exercise under degree of care under given circumstances which similar circumstances, and the circumstances considered are those which are known to the actor, but he will be charged with knowledge of what he could have known by exercising ordinary care. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 1; Dec. Dig. § 1.* For other definitions, see Words and Phrases, vol. 5, pp. 4743-4763; vol. 8, pp. 7729-7731.] 5. HIGHWAYS (§ 197*)-INJURIES-CONTRIBU. TORY NEGLIGENCE. One having no actual or implied knowledge that a horse, which became frightened while being driven in a highway, was not gentle, was not negligent in using him or in not observing precautions which would have been necessary | That they had frequently seen it driven by if he had such knowledge. others; that Mr. Stedman had himself driv [Ed. Note. For other cases, see Highways, en it upon several occasions, as had also his Cent. Dig. 499; Dec. Dig. § 197.*] 6. NEGLIGENCE (§ 15*)-JOINT TORT-FEASORS -LIABILITY. son; that during all this time it appeared to be and acted as a horse of ordinary gentleness, perfectly tractable, and safe for ordi Two or more persons may each be liable for injuries caused by their concurring negli-nary persons to drive; that both Mr. Sted gence. [Ed. Note. For other cases, see Negligence, Cent. Dig. 18; Dec. Dig. § 15.*] GENCE NEGLI man and his daughters believed and understood that it was ordinarily gentle and safe to drive; and that such was its character in 7. HIGHWAYS (§ 196*) fact. INJURIES The defendant offered evidence to CONCURRING NEGLIGENCE. show that the horse before its purchase by One is not relieved from liability for in- Cowles had a habit of attempting to run juries caused by his own negligence concurring with another efficient cause, so that the fact away upon slight provocation, that it had that the viciousness of his horse, of which plain- on several occasions prior to said purchase tiff had no knowledge, concurred with defend-run away, and that it was a dangerous and ant's negligence in causing the horse to become unreliable animal. There was no evidence frightened by placing a stone in the highway, in the case of any runaway habit or of any would not relieve defendant from liability for resulting injuries. intractable or dangerous disposition or trait being shown while Cowles owned it, or that it then had such habit, disposition, or trait, except by inference from the evidence of its prior conduct, or that either Cowles or the Stedmans had any knowledge of the existence of such habit, disposition, or trait at [Ed. Note.-For other cases, see Highways, Dec. Dig. 196.*] Appeal from Superior Court, New London County; Howard J. Curtis, Judge. Action by Orrin R. Stedman, administrator, against Eugene O'Neil. From a judgment for plaintiff, defendant appeals. Af firmed. any time prior to the Cowles ownership or after it. The defendant offered evidence to show that the plaintiff was at the time carelessly driving the horse with one hand, and had his other hand in a position so that it could not be effectively used, and that he was driving rapidly. This the witnesses for the plaintiff denied. The defendant claimed to have established that his servant was not negligent, that the plaintiff and his intestate were, and that the unruly disposition of the horse was the proximate cause of the injury complained of. Hadlai A. Hull and Richard P. Freeman, for appellant. Jeremiah J. Desmond, for appellee. The defendant's servant, while engaged in the former's service as the driver of a team which was loaded with fresh-cut granite blocks two or three feet in length and nine or ten inches in width and thickness, reached the foot of a hill in the village of Pawcatuck. Desiring to lighten his load for the ascent, he unloaded three of the stones and placed them in the traveled roadway near the foot of the hill. They were so placed that they formed a pile two feet or more high, having one stone projected over the others toward the center of the road. He then proceeded on his way. Later the plaintiff came down the hill in a singlePRENTICE, J. (after stating the facts as seated buggy and driving a horse owned by above). The defendant objects to the charge one Cowles. There were with him in the upon the ground that it did not sufficiently buggy his two grown-up daughters, whom impress upon the minds of the jury the fact for purposes of the deceased he was carrying that the plaintiff was bound to establish to the village from his and their home. The freedom from negligence on the part of himthree were seated upon the single seat; the self and his intestate. By this statement it plaintiff being upon the right side and driv- is not intended to complain of the court's ining. Near the pile of stones the horse be structions upon the subject of imputed negcame frightened and ran away, with the re- ligence. The court went to the full extent sult that one of the daughters, the plaintiff's of the defendant's requests in this regard, intestate, was thrown out and killed. The and told the jury that the contributory negplaintiff offered evidence to prove that the ligence of either the plaintiff, who was drivstones were the cause of the horse's fright. ing the horse, or his intestate, would bar The defendant claimed that it was running recovery. Whether this instruction was and unmanageable before it reached the right or wrong, it was what was asked by stones. Cowles, the owner of the horse, had the defendant, and favorable to him. The been a boarder at Stedman's for several burden of the objection is that the jury were months before the accident. During all this not clearly informed that the burden was time he had owned the horse, and it had upon the plaintiff to establish the absence been kept in Mr. Stedman's barn, where it of contributory negligence. This objection had been under the observation of the Sted- is not well founded. The jury were explicitman family. They offered evidence to prove: | ly told that the plaintiff, in order to recover, |