sewer was required by the public health and convenience. The defendant does not directly question this position, but insists that, if it is correct, the orators have alleged themselves out of court. propriety of exercising the authority of the city council in this particular instance. [6] We conclude therefore that the assessment imposed upon the orators is invalid, and does not constitute a lien upon the lands of the orators; and that, inasmuch as the defect is apparent upon the face of the corporate records the proceedings are not a cloud upon the orators' titles. So the orators' remedy at law is adequate in this respect. Blanchard v. City of Barre, 77 Vt. 420, 60 Atl. 970. [7] The orators' brief concludes with the claim that the bill can be maintained as a relief against a multiplicity of suits, but we do not consider this question. No such ground of relief is claimed in the bill, and the assigned causes of demurrer contain no reference to the allegations of the bill that would be likely to bring this question to the attention of the court as a matter in issue. The bill was properly dismissed. Decree affirmed, and cause remanded. [1] It is claimed that the record of the proceedings of the city council fails to show an ascertainment of the public need, and that without a finding of this fact the council had no authority to take the action complained of. It is well settled that everything essential to the jurisdiction of such a body must affirmatively appear, and that the requirement of a preliminary finding of public necessity or convenience makes the existence of that necessity or convenience a jurisdictional fact. Kent v. Village of Enosburg Falls, 71 Vt. 255, 44 Atl. 343; Blanchard v. City of Barre, 77 Vt. 420, 60 Atl. 970. In the cases cited the requirement was contained in the charter, while here it is found in an ordinance of the city council. But it is not necessary to consider the force and effect of an ordinance which operates as a restriction upon the exercise of a power conferred by the charter. The defendant's charter authorizes the establishment of "necessary" sewers only, and the city council has no charter authority to establish a sewer and assess part of the expense (Supreme Court of Vermont. Rutland. May 9, upon abutting landowners without finding that a necessity for its construction exists. [2] No presumption that it was found to be necessary can be based upon the fact that the petition for it was acted upon favorably. Kent v. Village of Enosburg Falls. [3] The fact that the word "necessary" is used merely as a qualifying term, and not in a clause of direct limitation, cannot affect the application of the rule. [4] Of course, the language implies an improvement necessary with reference to the public requirements; and this necessity is to be determined by the judgment of the city council. In State v. City of Paterson, 34 N. J. Law, 167, the mayor and aldermen were authorized to purchase "suitable" sites and erect thereon public markets, and employ "suitable" architects, engineers, and other persons to accomplish the work. The mayor and aldermen appointed commissioners to purchase land and erect the buildings, and it was held that the mayor and aldermen were required to use judgment and discretion in determining the suitableness of the site and of the persons employed for the work, and that they could not delegate the selection to others. (87 Vt. 546) NEWTON'S ADM'X v. AMERICAN CAR SPRINKLER CO. 1914.) 1. ACTION (§ 41*)-JOINDER-CASE AND TRES PASS. Counts in case and trespass cannot be joined unless for the same action. [Ed. Note.-For other cases, see Action, Cent. Dig. §§ 328-359; Dec. Dig. § 41.*] 2. APPEAL AND ERROR (8 5*)-Judgment 260*)-PLEADING (§ 193*)-DECLARATIONSMISJOINDER OF CAUSES OF ACTION-MANNER OF RAISING OBJECTIONS. Misjoinder of causes of action may be taken advantage of by demurrer to the declaration, motion in arrest of judgment, and writ of error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 8-21; Dec. Dig. § 5;* Judgment, Cent. Dig. § 461; Dec. Dig. § 260;* Pleading, Cent. Dig. §§ 425, 428-435, 437-443; Dec. Dig. § 193.*] 3. ACTION (8 41*)-MISJOINDER OF CAUSES OF ACTION. A declaration alleging in the first and second counts defendant's right of entry under a deed, and that he, while in possession, wrongfully removed timber, and alleging in the third count that defendant broke and entered the close of plaintiff and there cut down trees, is subject to demurrer for misjoinder of causes of action. Dig. §§ 328-359; Dec. Dig. § 41.*] [Ed. Note. For other cases, see Action, Cent. 4. PLEADING (§ 428*)-OBJECTIONS-Waiver. Where the declaration alleged in the first and second counts the rightful entry of defendant into possession of the premises of plaintiff, but there wrongfully cutting down and carrying away timber, and alleging in the third count a wrongful entry and cutting down and removing timber, defendant, going to trial without demurring, could not rely on the allegation of the first two counts to secure the exclusion of evidence pertinent to the third, but plaintiff was entitled to introduce evidence under each count. [5] No inference that the city council passed upon the question of necessity can be drawn from the language in which the matter was turned over to the final determination of the city attorney, nor from the nature of the ordinary duties of that official. The generality of the language employed gave ample room for the consideration of objections of every nature bearing upon the [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 1433-1436; Dec. Dig. § 428.*] 5. EVIDENCE (8 520*)-OPINION EVIDENCEEXPERTS. An expert may give an estimate of the amount of lumber that could be sawed from a certain number of hemlock trees having certain dimensions one foot from the ground, as shown by the testimony of witnesses who had counted and measured the stumps. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 2329; Dec. Dig. § 520.*] 6. TRESPASS (§ 43*)-PLEADINGS-ACTIONS DEFENSES. Where the third count of the declaration alleged a breaking and entering into the close of plaintiff and there destroying timber, while the first and second counts alleged a rightful entry but a wrongful cutting down of trees, defendant, failing to plead license, could not, in defense of the third count, have the benefit of the license proved by plaintiff in support of the first two counts. [Ed. Note. For other cases, see Trespass, Cent. Dig. §§ 123-127; Dec. Dig. § 46.*] 8. TRESPASS (§ 46*)-TRESPASS TO REAL ESTATE-EVIDENCE-SUFFICIENCY. In an action for the carrying away by a purchaser of standing timber of the tops of the trees reserved to the vendor, evidence held to show a wrongful carrying away by the purchaser of the tops of the trees. [Ed. Note. For other cases, see Trespass, Cent. Dig. §§ 123-127; Dec. Dig. § 46.*] 9. TRIAL (8 133*)-ARGUMENT OF COUNSELINSTRUCTIONS. Where, in an action against a purchaser of standing timber for the wrongful removal of timber not embraced in the deed, the foreman of the purchaser testified that, while the work was in progress, he obtained by mail a copy of the deed and then instructed the men in accordance with its terms, the closing argument of plaintiff's attorney in reference to the foreman's testimony as to why he did not bring the post of fice record to show when the deed was received was not prejudicial; the court on objection to the argument directing the jury not to consider the matter of the postmark. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. § 133.*] 10. TRIAL (§ 121*)-ARGUMENT OF COUNSEL. Where a witness during the trial sat at the table with defendant's counsel and superintendent, the argument of plaintiff's counsel with reference to the conduct of the witness was not erroneous because a mere comment on matters within the observation of the jury. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 294-298, 300; Dec. Dig. § 121.*] 11. TRIAL (§ 121*)-ARGUMENT OF COUNSEL. Where plaintiff's counsel in his argument was mistaken as to the witness who had given certain testimony, claimed to have been given by counsel in his argument, the mistake of counsel as to the source of the evidence was not reversible error. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 294-298, 300; Dec. Dig. § 121.*] 12. TRIAL (§ 122*)—ARGUMENT OF COUNSEL. Where, in an action against a purchaser of standing timber for wrongfully removing timber not covered by the deed, the purchaser failed to produce figures relating to the lumber that came from plaintiff's premises, and gave no explanation of its failure to do so, that fact was proper matter of comment for plaintiff's counsel in his closing argument to the jury. OF [Ed. Note.-For other cases, see Trial, Cent. Dig. § 299; Dec. Dig. § 122.*] 13. LOGS AND LOGGING (8 3*)-SALE STANDING TIMBER-RIGHTS OF PURCHASER. Where a contract for the sale of standing timber gave the purchaser the right to cut and remove standing timber down to six inches in diameter four feet from the ground, excepting the tops, limbs, and wood from said lumber, and all the wood and timber standing by itself and adjoining the described timber, with the right to enter and cut and remove the timber, doing no unnecessary damage and rebuilding all fences removed or destroyed by cutting down or removing said timber, the purchaser could not complain of a construction of the contract whereby the court gave him the right to cut and remove the trees covered by the deed, using the care of a prudent man, and the right to fell the trees on the land of the vendor, using the care of a prudent man, and was under no obligation to avoid injuring other trees near by by felling the trees. ging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*] [Ed. Note. For other cases, see Logs and Log 14. APPEAL AND ERROR (§ 263*)-QUESTIONS REVIEWABLE-QUESTIONS NOT RAISED IN TRIAL COURT. A complaint that the trial court confused the issues not presented it by the exceptions taken will not be considered in the Supreme Court. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. Dig. § 263.*] 15. APPEAL AND ERROR (§ 999*)-VERDICT— CONCLUSIVENESS. A verdict will not be disturbed by the Supreme Court where it is not manifestly wrong. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3912-3921, 3923, 3924; Dec. Dig. § 999.*] Exceptions from Windsor County Court; Fred M. Butler, Judge. Action by Tyler J. Newton's administratrix against the American Car Sprinkler Company. There was a verdict and judgment for plaintiff, and defendant brings exceptions. Affirmed. Davis & Davis, of Windsor, for plaintiff. David A. Pingree, of White River Junction, John G. Sargent and Ernest E. Moore, both of Ludlow, for defendant. MUNSON, J. The plaintiff claimed, and the defendant conceded, that the defendant's rights in the premises were those conveyed to it by John S. Rand and described in his deed as follows: "All the pine, hemlock, white birch, ash, red oak and bass lumber now standing and growing on the farm of the late Tyler J. Newton down to six inches in diameter four feet from the ground, excepting and reserving the tops, limbs and wood from said lumber, and all the wood and timber standing by itself and adjoining the above-described timber on the east. Together with the right to enter upon said premises and cut down and remove said timber at any time prior to May 25, 1912, doing The plaintiff cites in support of her position Hubbell v. Wheeler, 2 Aikens, 359; Sawyer v. Newland, 9 Vt. 383; Warner v. Hoisington, 42 Vt. 94-relying specially upon the last-named case, which has recently been quoted with approval in Sawyer v. Childs, 83 Vt. 329, 75 Atl. 886. It was said in Warner v. Hoisington that the defendant was relying under the general issue upon facts which no unnecessary damage and replacing and vantage of a misjoinder are demurrer to the rebuilding all fences removed or destroyed declaration, motion in arrest of judgment, by cutting down or removing said timber." and writ of error. The defendant seeks to The declaration contains three counts, of obtain the same benefit by an objection to which we give the substance. The first count the evidence. The plaintiff claims that the sets up the defendant's right of entry under evidence was proper because the case was the deed, and alleges that the defendant, being tried on the general issue. The dewhile in possession of the premises under fendant contends that the rule which resaid right, entered upon said lands under the quires that a license be pleaded cannot be authority of said deed, and cut down and urged where the plaintiff has shown a license removed, not only the trunks of a large num- by allegation and proof. ber of the trees specified, but also burned up, carried away, and despoiled the tops and limbs of said trees, and also 80 cords of firewood which were then and there worked up out of the tops, limbs, and trunks of said lumber. The second count sets up the right and possession of the defendant as in the first count, and alleges that the defendant entered upon said lands under said deed, and without right did unnecessarily, wrongfully, he was bound to plead specially, and that and without leave of the plaintiff cut down and carry away and convert to its own use a large number of maple, spruce, elm, poplar, while oak, and yellow birch trees and the undergrowth then and there standing and growing. The third count alleges that the defendant broke and entered the close of the plaintiff, and, being so entered, then and there cut down, damaged, and despoiled a large number of pine, ash, hemlock, white birch, red oak, and bass trees which were less than six inches in diameter at four feet from the ground, and also a large number of maple, spruce, elm, poplar, white oak, and yellow birch trees and underbrush, all then and there standing and growing. It is also alleged that the causes of action set forth in the third count are the same causes of action as those set forth in the first and sec ond counts. The case was tried on the general issue; no special plea having been filed. The defendant excepted to the admission of evidence offered under the third count to show the cutting of trees of the varieties specified in the deed which were less than six inches in diameter, and to show the cutting of trees of other varieties than those named in the deed. The ground of the objection was that the acts sought to be proved were merely matters in aggravation of the breach of the close, and that, it having been shown by the plaintiff that the defendant was rightfully upon the premises, a count in trespass quare clausum could not be sustained. This position is now amplified in argument, and it is specially claimed that, if the admission of the evidence can be sustained in the circumstances of this case, there will still remain the objection of misjoinder. [1] It is manifest, from an inspection of the counts, that they are not for the same causes of action, and the allegation to the contrary can be given no effect. It is true that counts in case and trespass cannot be joined unless for the same cause of action. he could not complain if the plaintiff recovered for the trespass which he had distinetly alleged in his declaration, and which he might have new assigned if the defendant had pleaded the special matter upon which his defense rested. But the defendant says these cases are not authority here, because it is evident that in them there was no showing, by allegation and proof on the part of the plaintiff, that the defendant entered under a license. In support of this view, the defend ant quotes the following from the opinion in Sawyer v. Newland: "There is nothing by which we can learn that the defendant entered for a lawful purpose, to wit, to cut the fallen timber, and then exceeded his permission; but, on the contrary, the whole purpose and intent of the defendant may have been to cut the green timber, for anything which appears in the case." But it is also said in the same opinion: "The defendant could not, without a plea or notice, rely on the license as a justification. The evidence introduced by the plaintiff, on the subject, showed the acts done by the defendant, by plaintiff's permission, as acts of ownership done by himself. For what was done by his permission is considered as done by him. The defendant was not, on this account, entitled to rely on it as a justification, without a plea to that effect." [3] The situation seems to be this. The third count is in itself a complete and sufficient statement of a cause of action. The declaration as a whole could not have been sustained because of its joinder, if the declaration had been demurred to. [4] But the defendant went to trial without demurring, and, as regards the conduct of the trial, the declaration as a whole and each count of it was to be accepted as sufficient. The fundamental allegation of the third count was inconsistent with that of the first two counts, but the defendant could not rely upon the allegation of the first two counts to secure the exclusion of evidence pertinent introduce evidence under each count of her, with its terms. The cutting was begun in declaration, and the evidence objected to was the fall of 1907 and completed early in 1909. admissible under the third count. The trial was had in June, 1912. The attor [5] A witness who was found to be qual-ney making the closing argument for the ified as an expert, but who had not seen the lumber inquired about, was permitted, subject to the defendant's exception, to give an estimate of the amount of lumber that could be sawed from a certain number of hemlock trees having certain dimensions at one foot above the ground. It appears from the transcript, which is referred to on this point, that the number and dimensions assumed in the inquiry had been testified to by witnesses who had counted and measured the stumps. The evidence was properly received. [6] The defendant moved for the direction of a verdict under the third count on the ground that there was no evidence of a breaking and entering. It is said in argument that the only evidence to support a verdict on this count was inadmissible evidence of matters of aggravation. There was evidence that the defendant was upon the land and did the cutting complained of, and, as the case stood, this was in legal effect evidence of a breach of the close. There was an entry which, if made without a license, constituted a breaking. But the defendant, having failed to plead a license, could not show one as a defense to the third count, and could not have the benefit of the license proved by the plaintiff in support of the first two counts. To hold otherwise would be to allow the defendant the advantage of a demurrer after an issue of fact had been joined. [7] The defendant also moved for a verdict under the second count, claiming that there was no evidence that any trees not of the kinds purchased were unnecessarily cut. There was evidence that, where the defendant first cut, the timber was cut clean; that the growth there included varieties not covered by the deed; and that, when complaint was made to the person in charge he said that he had no copy of the deed, and did not know just what they had a right to cut. This alone was evidence tending to sustain the allegation of unnecessary damage. [8] There was a like motion regarding the first count. It is said that there was no evidence that any tops of trees that were standing and growing were carried away. It will be enough to refer to a single question and answer. A witness was asked, "What be came of the tops of the trees that were cut the first winter?" and replied that the company's teams drew them off. [9] The foreman in charge of this work was called by the defendant, and testified that when he commenced the cutting he did not have a copy of the deed; that soon after he began he was spoken to by the plaintiff's son regarding the kinds that were to be cut, and the size; that he at once wrote for a copy of the deed, and received it soon after by special delivery mail; and that, on receiv plaintiff referred to the foreman's testimony regarding the receipt of the deed, and said: “Why didn't he bring the post office record to show when the letter was received?" Defendant's counsel excepted to this argument, on the ground that information from the post office department was equally open to both parties; and plaintiff's counsel attempted to sustain his position by some suggestions made to the court in the presence of the jury, both before and after the court instructed them; to each of which an exception was taken, and all of which were finally withdrawn. The court told the jury that they were not to consider the matter of the postmark; that no inference should be drawn from it; that the matter was as much open to one side as the other. It is not necessary to consider the applicability of the rule claimed and adopted, for we think there was nothing in this argument, as applied to an occurrence of this nature, that was likely to prejudice the defendant, and that the matter as left affords no ground of reversal. [10-12] Plaintiff's counsel argued that no reliance ought to be placed on the defendant's evidence because the defendant might have shown by the records of the mill how much of each of the different kinds of lumber was taken off the lot. Defendant's counsel excepted to this, saying that it did not appear that any such records were kept; and plaintiff's counsel said, "Mr. Crockett testified that he kept such a record." Defendant's counsel said, "Mr. Crockett is not in the employ and control of the defendant;" and plaintiff's counsel inquired if he did not sit with and prompt counsel during the trial; and an exception was taken to this statement. Plaintiff's counsel continued his argument, and defendant's counsel asked an exception to all argument in this line, saying, "There is no evidence in the case that any record was kept of the kinds of lumber or the amounts that is in the possession of the defendant;" and plaintiff's counsel replied, "The witness said he had a minute of it all." The court thereupon said that the defendant would be entitled to an exception if counsel persisted in arguing upon that line, and plaintiff's counsel said he would say no more on the matter. No further action was taken by the court. The defendant's mill was handling logs from two places the first winter and from four the second winter. The chopping on the plaintiff's place the first winter was done by the thousand feet. Leroy Crockett was the foreman having charge of all the work; William Carey was the surveyor who measured the logs as they came into the millyard; and George Crockett was the board sawyer. All these witnesses testified that the logs supported by the evidence, and of an amount rate piles; and George Crockett testified that, be set aside as contrary to the evidence, not they were not mixed in sawing. Carey testified that he had had memoranda of all that he did there; that he did not know as he had lost it, and might have it at home; that he saw it last when he got through there, and that he had not tried to find it, and, on being asked how much yellow birch he measured, said that if he had his papers he could tell. George Crockett testified that he did not keep any record of the logs he sawed; that his only duty was to saw such logs as were brought up to him, and keep the lots, and, when inquired of later where some logs came from, said that it was his duty to notify Mr. (Leroy) Crockett at the mill so that he could keep a correct tally. (5 Boyce, 1) ELBERT V. SCOTT et al. (two cases). (Supreme Court of Delaware. Feb. 17, 1914.) 1. APPEAL AND Error (§ 1*)—DECISIONS RE VIEWABLE. The right to a review in an appellate tribunal exists only when and to the extent provided by the laws of the state. Error, Cent. Dig. §§ 14; Dec. Dig. § 1.*] The "writ of ad quod damnum" is a common-law writ, in the nature of an original writ, issued by the prothonotary, and in condemnation proceedings is returnable to and subject to confirmation of the Superior Court, which order of confirmation is a final order. The exceptions state that during most of the trial Leroy Crockett sat at the table with defendant's counsel and Perry, its superintendent. So the remark of plaintiff's counsel regarding this witness had reference to matters within the observation of the jury, and was not error. It is evident that plaintiff's counsel, in asserting that certain evidence had been given, was mistaken as to the witness who gave it. There was evidence of the character claimed, and the mistake as to the source of it did not constitute reversible error. In view of the features of the defendant's case above presented, we The action of the Superior Court in conthink the fact that it produced no figures re-firming the report of the sheriff's jury summonlating to the lumber that came from the plaintiff's lot and gave no explanation of its failure to do so was proper matter of com [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 660-664; Dec. Dig. § 253.*] 3. EMINENT DOMAIN (8 253*)-DECISIONS RE VIEWABLE. ed under a writ of ad quod damnum provided for by Act Feb. 26, 1913 (27 Del. Laws, c. 201), authorizing the condemnation of real estate and the issuance of writs of ad quod damnum to ment. assess the damages, and declaring that the re[13] The reserved wood and timber describ-port of the sheriff's jury, when confirmed, shall ed in the deed as standing by itself was fur- be final, is a judicial decision, or at least a final ther described by certain boundaries, and order, reviewable under Const. art. 4, § 12, declaring that the Supreme Court has jurisdiction from this reservation eight trees were except- to finally determine all matters in error in the ed, and no question is made as to the defend- judgments and proceedings of the Superior ant's right to cut these trees. The court first Court. charged with reference to these trees that the defendant had a right to cut them and move them, using the care of a prudent man, and doing no more damage than was necessary, and that if it went beyond that, and cut other trees, it would be liable for such damages. It was suggested that this should be so amended as to state that the defendant was entitled to cut those trees, felling them upon the Newton land, and not injure the property of any one else. The court thereupon charged further that the defendant had the right to fell the trees upon the land of the plaintiff, using the care of a prudent man, and was under no obligation to avoid injuring other trees near by by felling these trees across the road or upon the land of some one else. We see no ground for complaint. [14] It is said that the court confused the issues when it spoke of the defendant's "going beyond the terms of the contract." No such complaint was presented to the county court by the exceptions taken. [Ed. Note. For other cases, see Eminent Do main, Cent. Dig. §§ 660-664; Dec. Dig. § 253.*] 4. EMINENT DOMAIN (8 251*)-MODE OF REVIEW-CERTIORARI. Certiorari, and not error, is the proper proceeding by which to obtain a review of the confirmation of a report of the sheriff's jury summoned under a writ of ad quod damnum in a condemnation suit, for writs of error are limited to proceedings according to the common law, and a proceeding to condemn land, even by writ of ad quod damnum, is not one according to the common law. [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 658; Dec. Dig. § 251.*] 5. CERTIORARI (§ 1*)—NATURE OF WRIT. Certiorari was originally a writ of grace, which was not granted if substantial justice had been done, despite technical errors, and for that reason was preferred to review special proceedings by inferior tribunals. [Ed. Note.-For other cases, see Certiorari, Cent. Dig. § 1; Dec. Dig. § 1.*] 6. EMINENT Domain (§ 251*)—QUESTIONS PRE SENTED BY RECORD-IMPROPER PROCEEDING. Though certiorari is the proper procedure to obtain review of the confirmation of the report of a sheriff's jury, summoned in a condemnation suit under a writ of ad quod dam[15] The defendant moved that the verdict num, yet where the record and the parties are |