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derson v. Stewart, 4 Hawks, 256; Watson v. Wells, 5 Conn. 468; Greenup v. Strong, 1 Bibb, 590; Meek's Heirs v. Ealy, 2 J. J. Marsh. 330; Voorhies v. Instone, 3 Bibb, 353; Garson v. Green, 1 Johns. Ch. 308; Bayley v. Greenleaf, 7 Wheat. 46, 50. And the same principle is again recognized by Mr. Justice McLean, in McLearn v. McLellan, 10 Pet. 625; and numerous other cases might be cited.

That the existence of these liens is inconsistent with our registry or attachment laws is an objection no more formidable, than exists from the same source against most constructive or implied trusts and liens, existing in or growing out of the numerous equitable rights, peculiar to real estate, and which have nevertheless been regarded and enforced, in this state, upon the settled principles of the English chancery. An absolute deed of land, with a parol defeasance, for the security of a debt, is of this character. So are all resulting trusts, in favor of the person paying the consideration money for a deed of land, executed to some third person. And this right has been enforced in favor of a married woman, even: Pinney v. Fellows, 15 Vt. 525, where the whole subject of resulting trusts is very elaborately and satisfactorily discussed, and the authorities, bearing upon that point, learnedly digested by Bennett, J.

Any argument, which is attempted to be drawn from the statute of frauds, is equally applicable to the English statute. But many cases, coming, in terms, within that statute, have been saved from its operation by courts of equity. Such are cases of part performance of the contract, the deposit of title deeds to secure a debt, etc. The payment of the price of land before the execution of the conveyance, and the execution of the conveyance without the payment of the price, as well as the execution of an absolute deed for the security of a debt, and all resulting trusts, and many others, are of this character. It has been urged, that the existence of such a lien will unreasonably clog the free circulation of property, and that it is otherwise inconsistent with our habits of business and modes of conveyance. But such an objection, if, indeed, it be properly comprehended by the court, seems far too uncertain and indefinite to form any just ground of decision in a court of justice. We, however, apprehend no serious embarrassment will result to the communitity from the determination here made. This lien can only be enforced in a court of equity, where all equitable considerations will be open to both parties. The cases will be few, and to entitle the plaintiff to redress, he must show a case

AM. DEC. VOL. LII-5

of manifest equity, in proof and in principle. In my judgment, such a rule is far less in danger of being abused to the public detriment, than are stringent rules of law, enforced with an iron hand, through fear of relaxation. But I am not specially fearful of the abuse of the law, from rigid adherence to principle, as evolved from the decided cases. There is in our day, perhaps, more danger of too great and sudden departure from the ancient landmarks of the sages of the law, which have been long tried, and become easy and comfortable, in pursuit of the ignes fatui of modern progress and innovation. We should not have felt called upon to say anything upon this portion of the case, had it not been for the great zeal and evident sincerity with which these considerations were pressed upon the court.

VENDOR'S LIEN ON CONVEYANCE, OR PROPERLY, GRANTOR'S LIEN.-There is an obvious distinction, although often lost sight of, between the lien for purchase money of one who has conveyed land and one who has only agreed to convey: See note to Lagow v. Badollet, 12 Am. Dec. 264; 3 Pomeroy's Eq. Jur., sec. 1249, note. The former, either through legislation or decision, does not exist in many states: See Rev. Laws of Vt., 1880, sec. 1937, c. 97; Kauffelt v. Bower, 10 Am. Dec. 428, and note; Johnson v. Cawthorn, 27 Id. 250, and note. In Moore v. Holcombe, 24 Id. 683, it was said the lien should not be extended beyond its proper limits. This lien, where it exists, may be enforced against the grantee and all persons claiming under him, except bona fide purchasers without notice: Duval v. Bibb, 4 Id. 506; Blight's Heirs v. Banks, 17 Id. 136; Moore v. Holcombe, supra; Hall's Ex'rs v. Click, 39 Id. 327; Dunlap v. Burnett, 45 Id. 269; Briscoe v. Bronaugh, 46 Id. 108. There is some diversity of judicial opinion as to what amounts to a waiver. In the following cases, the taking of personal security was held to be a waiver: Blight's Heirs v. Banks, supra; Marshall v. Christmas, 39 Id. 199; Conover v. Warren, 41 Id. 196; while the following are opposed to this conclusion: Tiernan v. Beam, 15 Id. 557; Honore's Ex'r v. Bakewell, 43 Id. 147; Aldridge v. Dunn, 41 Id. 224. The giving of a deed under promise of personal security, which was not complied with, is no waiver: Dunlap v. Burnett, supra; and in Boos v. Ewing, 49 Id. 478, it was held that the taking of a mortgage on the land conveyed was no waiver.

VENDOR ON CONTRACT TO CONVEY HAS LIEN FOR PURCHASE MONEY: Winborn v. Gorrell, 40 Am. Dec. 456; Lagow v. Badollet, 12 Id. 258; Clarke v. Curtis, 37 Id. 625; Thompson v. Carpenter, 45 Id. 681. The lien is not waived by taking an order on a third person for the purchase money, if such order is not accepted: Knisely v. Williams, 46 Id. 193.

RECITALS IN DEEDS AS NOTICE: See Burkart v. Bucher, 4 Am. Dec. 457; Grabb v. Castleman, 16 Id. 741, and note; Reeder v. Barr, 22 Id. 762; note to Lodge v. Simonton, 23 Id. 48; Honore's Ex'r v. Bakewell, 43 Id. 147; Childe v. Clark, 49 Id. 164.

THE PRINCIPAL CASE IS CITED in Langdon v. Vt. etc. R. R., 54 Vt. 600, as an illustration of a lien enforced in equity; and referred to in The Brig Ann C. Pratt, 1 Curt. C. C. 351; and in The Brig Wexford, 7 Fed. Rep. 680, as to what amounted to a waiver of an admiralty lien.

MARSH v. JONES.

[21 VERMONT, 378.]

TESTIMONY OF DECEASED WITNESS ON FORMER TRIAL OF SAME CAUSE may be given on subsequent trial, if substance of testimony on both di rect and cross-examination can be stated in the very words of witness. PERSON ENTITLED TO CUSTODY AND CONTROL OF FEROCIOUS DOG, known to be accustomed to bite, is liable for injuries committed by him while running at large.

TRESPASS on the case, against the defendant, as keeper of a ferocious dog, for an injury caused by the biting of the plaintiff. A justice of the peace, before whom the case was first tried, was examined by the plaintiff as to what was the testimony of a witness who then testified before him, but who was since deceased. The justice said that he could remember that the witness had testified, and the general subject and character, to some extent, of his testimony, but he could not give the precise words without reference to his minutes, taken at the time of the trial; but that he had attempted, and no doubt did, write the substance of the testimony in the very words of the witness, but had written nothing that was said on the cross-examination, because nothing was elicited thereon differing from the testimony in chief. This evidence was objected to by the defendant, but the justice was allowed by the court to state his minutes to the jury. Evidence was given by the plaintiff that the defendant was the owner and keeper of a ferocious dog, which the defendant knew had bitten several persons, and which bit the plaintiff, while passing the house of defendant's father. The defendant's father testified that he was the owner of the dog, but allowed the defendant to keep him; that if he had said the dog belonged to the defendant, it was to prevent creditors attaching him; and that several weeks before the injury occurred the dog was brought home. The jury were instructed that the plaintiff could not recover if they believed the testimony of defendant's father; but if the defendant had a right to the custody and control of the dog at the time the plaintiff was bitten, and the defendant's father had not, and the dog was only temporarily and casually out of his custody, the defendant was liable, and it did not excuse his liability that the dog was put into his hands by his father to prevent his being attached. Verdict for the plaintiff. Exceptions by the defendant.

Tracy and Converse, for the defendant.

8. Fullam, for the plaintiff.

By Court, REDFIELD, J. The only question, which it is deemed of importance to discuss much in detail, is that in regard to the mode of identifying the testimony of a deceased witness. There has been a good deal of discussion in the books on this subject, and it is one not entirely free from difficulty. The rule laid down in State v. Hooker, 17 Vt. 658, is perhaps as liberal as could be desired-more so than will be found in any of the English cases. All the witness could there state of the testimony of the deceased witness was the substance of the testimony, in his own words, including both the direct and cross-examination. Under that rule there could be no doubt of the correctness of the decision below.

The testimony in the present case is, what it seems to us the reason of the rule justly requires, and nothing more, that is, that the testimony of the deceased witness, or the substance of the testimony, should be given in the very words of the deceased witness. This is the rule required in proving the words spoken in slander, libel, and on indictments for perjury; and substantially the same rule is required in giving evidence of the declarations and admissions of a party made out of court. But, no doubt, evidence must in many cases be received which falls short of this. But unless, upon the whole, the jury or the triers of the fact are satisfied that they get all the substance of the deceased witness's testimony, in his very words, it should not be regarded as of any force. And this must extend to the crossexamination as well as the direct evidence.

There is good reason, perhaps, for requiring more strictness in regard to the testimony of a deceased witness than in regard to original evidence. There is always more or less uncertainty when the testimony comes from the original witness. But when upon this uncertainty we found another, the doubt is increased, not in a simple arithmetical proportion, but in a geometrical ratio. The hazard in regard to the truth increases, not in the simple ratio of the numbers of the witnesses through whose testimony we receive that of the deceased witness, but in the ratio of the squares of the numbers.

This subject does not appear, very clearly, to have much occupied the attention of the English courts. The testimony of deceased witnesses until within the last fifty years, perhaps, was only given in evidence at a subsequent trial, when it had been taken down in the form of a deposition. This is the case of Rex v. Payne, 1 Ld. Raym. 729-reported more at length, and far more intelligibly, in 5 Mod. 163; S. C., 1 Salk. 281; 2 Id. 417,

418 [miscited]. That was the case of a deposition, taken in a reliminary examination before a magistrate, when the accused was not present and had no opportunity for cross-examination, and was rejected on that ground.

Buller's Nisi Prius is, perhaps, as good evidence, as any book can be, of the state of the law upon any given subject, at the time he wrote. He alludes to this subject, pp. 142, 143, but in such a manner, as to leave great doubt how the law then stood. Depositions taken before the coroner were to be used, "for the coroner is an officer appointed on behalf of the public;" and by certain statutes, examinations before justices of the peace, in cases of felony, are to be used, against the accused, "if the witnesses be dead." This is no doubt the ovum from which the practice proceeded. Justice Buller further says: "Another way of perpetuating the testimony of a person deceased, analogous to this of giving depositions in evidence, is by giving the verdict in evidence and the oath of the party deceased." He says further, "it must be between the same parties"-thus showing very clearly, that it was not then fully settled, that it must be the very same cause, which is now abundantly settled, in practice, certainly.

No question seems thus early to have arisen, whether the testimony of the deceased witness must be given in his very words. It rather seems to have been, for a long time, taken for granted, that it must be so. For in Rex v. Jolliffe, 4 T. R. 291, Lord Kenyon, C. J., in giving judgment, alludes to this subject, arguendo, citing the instance of Lord Palmerston's evidence, which was offered in a case at bar, saying: "But as the person, who wished to give Lord Palmerston's evidence, could not untake to give his words, but merely to swear to the effect of them, he was rejected." He seems to entertain no doubt, that such was then the acknowledged rule upon the subject. It seems to have been nothing more or less, than giving in evidence a former deposition. This, like the proof of any other writing, should be done by producing the original, where that can be done, or, in default of that, a copy, or lastly, by oral proof of the contents, which, unless it substantially report the very words, must of necessity be very inadequate proof.

But as much testimony, given viva voce, is never reduced to writing, and when it is, is done by short-hand writers, and very imperfectly done, it becomes, in practice, necessary to somewhat relax the rule. Accordingly this has been done, both in England and America. See Mayor of Doncaster v. Day, 3 Taunt.

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