262; Cornell v. Green, 10 Serg. & R. 16; and numerous American cases, referred to in Greenleaf's Cases Overruled, etc., 436. In 1 Stark. Ev. 327, 328, and note (N), it is very distinctly declared, that it is sufficient, where the witness, in rehearsing the testimony of one indicted for perjury, committed on a former hearing, said " he could not swear he had stated all which fell from the prisoner, but that he said nothing to qualify it:" Rowley's Case, 1 Ry. & M. 299; and it is argued, that the same degree of certainty is sufficient, in rehearsing the testimony of a deceased witness.

In Tod v. Winchelsea, 3 Car. & P. 387, it was allowed to give the substance of what a deceased witness had deposed on a former trial, from the short-hand notes of one of the officers of court. Phillips, in his treatise on Evidence, vol. 1, pp. 215, 274, seems to countenance the ancient strictness, but not to the extent that it should of necessity be testimony given in the very same cause, but only in an action between the same parties, where the same point is involved. But however that may be, the practice certainly is, not to extend the rule beyond the very same case. And the rule, as to the degree of strictness required, in proving the very words of the witness, seems correctly laid down in Glass v. Beach, 5 Vt. 175, by Baylies, J. "It may be given in evidence, either from the judge's notes, or by the notes which have been taken by any other person, who will swear to their accuracy; or the former evidence may be proved by any person who will swear, from his memory, to its having been given:" Mayor of Doncaster v. Day, ubi supra. This is substantially the rule followed in the county court, in this case.

The charge, we think, was as favorable to the defendant, as he had any just grounds to claim. Judgment affirmed.

TESTIMONY OF DECEASED WITNESS ON FORMER TRIAL.-The cases in this series are collected in Wagers v. Dickey, 49 Am. Dec. 467, where it was held that the substance of the witness's testimony might be given. The principal case was cited in Ig/chart v. Jernegan, 16 Ill. 521, among others, as a case in favor of allowing the substance of the testimony of a deceased witness to be proved.

INJURIES COMMITTED BY VICIOUS DOGS: See Hinckley v. Emerson, 15 Am. Dec. 383; Loomis v. Terry, 31 Id. 306, and note; Pickering v. Orange, 32 Id 35; Kittredge v. Elliott, 41 Id. 717; and see note to Tonawanda R. R. v. Munger, 49 Id. 248. For actions against separate owners for joint injuries, see Adams v. Hall, 19 Id. 690; Van Steenburgh v. Tobias, 31 Id. 310. A ferocious dog, liable to do injury, is a nuisance, and by keeping it after notice the owner is chargeable for any neglect to keep it with such care that it can not damage a person without the latter's essential fault: Mann v. Weiand, 81 Pa. St. 254, citing the principal case.

KEELER V. FASSETT.

[21 VERMONT, 539.]

JUDGMENT CREDITOR MAY SUSTAIN TROVER FOR WRIT OF EXECUTION issued on his judgment, and this though it had become an expired process. FATHER OF MINOR HAS NO RIGHT, FROM HIS MERE RELATION, TO DISPOSE OF MINOR'S PROPERTY in satisfaction or security of his own debts. INFANT BECOMING PARTY TO TRUSTEE PROCESS AS CLAIMANT, NOT BOUND BY PROCEEDING, unless his rights were actually tried and adjudicated, and he appeared by guardian and not by prochein ami.

TROVER for a writ of execution, brought by an infant by her next friend. Plea, the general issue. The plaintiff gave in evidence records of a judgment in her favor against one Scott, and of a suit by audita querela, by Scott against her, resulting in judgment in her favor. She also proved that the writ of execution, issued on the judgment in her favor against Scott, and which had been superseded by the writ of audita querela, was, several months after service of the latter writ, in the possession of the defendant, to whom it had been pledged by Lewis Keeler, plaintiff's father; and that she had applied to the defendant for the writ, offering to pay him the amount for which it had been pledged, and at the same time denying Lewis Keeler's right to sell or pledge it; but the defendant refused to accept the sum offered and surrender the writ, because he had been served with process in favor of Scott, as trustee for Lewis Keeler. The record of a suit by Scott against Lewis Keeler, in which the defendant was summoned as trustee, and in which the plaintiff appeared by her attorney and next friend, as claimant of the credits, etc., of Lewis Keeler in the defendant's hands, was offered in evidence by the defendant, but rejected by the court. This proceeding had terminated in a judgment against Lewis Keeler, a disallowance of the plaintiff's claim, and an adjudication against the defendant, as trustee, for the amount of the judgment. There was no evidence to show a sale or assignment of plaintiff's judgment against Scott, or of her execution, to Lewis Keeler, or any authority to him to sell or pledge the same. Judgment by the court for the plaintiff, on these facts. Exceptions by defendant.

M. Scott, for the defendant.

L. B. and G. G. Hunt, for the plaintiff.

By Court, ROYCE, C. J. It is laid down in the English books, on the authority of Jones v. Winckworth, Hardre, 111, that trover will not lie for a record, because it is not private property.

The reason assigned for the rule indicates its proper limitation. In the first place, the denial of the action should doubtless be understood as extending to individual parties, who may suppose themselves interested in the preservation of the record, but not to a person having the official custody of it; for possession, accompanied with the responsibilities of such a person, would seem to constitute a sufficient title to maintain the action against a wrong-doer. In the next place, the rule should be taken as being predicated of the record strictly so called, which is made and preserved by public authority, and not of such papers as have relation to the record, but are not parcel of it. Of this latter character, we think, was the writ of execution, for which the present action was brought. The record could show no right acquired under or affected by it, for it had not been executed. The plaintiff purchased it, and it had in no effective sense become incorporated with the very record. We also consider, that the plaintiff continued to have an interest in it, though it had become an expired process; since its absence from the office of the justice might embarrass her in procuring a fresh execution on her judgment, and might even create a presumption, that the judgment had been satisfied. And hence, as between these parties, the plaintiff was entitled to have possession of the writ, and may well sustain this action, if the defendant persisted without right in withholding possession from her.

The ground, on which he first claimed to keep possession of the paper, was clearly without any legal or just foundation. Lewis Keeler derived no right, from his mere relation to the plaintiff, to make a sale or transfer of her property, and much less to dispose of it in satisfaction or security of his own debts: Reeve's Dom. Rel. 290. The case excludes the supposition of any license or consent on her part. His pledge of the judgment and execution to the defendant was therefore a nullity as against the plaintiff.

The other ground of defense depends upon the record of the trustee process, offered in evidence on the trial and rejected. By that it appears, that when the defendant refused to surrender the execution in compliance with the plaintif ́s demand, he had been summoned by Scott, the execution debtor, as the trustee of Lewis Keeler. And that proceeding appears to have terminated in a judgment in favor of Scott against Lewis Keeler, and a judgment fixing the defendant for some thirty or forty dollars as trustee of said Keeler, on account of the plaint

iff's judgment and execution against Scott. The only question to be determined upon that record was, whether the plaintiff so became a party to the suit, and had her right to the judgment and execution against Scott so adjudicated and determined against her, that she became barred from asserting that right in a distinct action against the trustee. Those sections in the trustee act, which provide for the intervention of claimants to the property in the trustee's hands, were doubtless intended to have an ulterior effect, as between the claimant and trustee. And perhaps it would be going too far, to hold, that the rights of an infant, who becomes a party to the suit as claimant, may not be barred by an adverse decision. But we think that, to render such a proceeding conclusive against an infant, it should appear that his rights were actually tried upon evidence and adjudicated. We are also inclined to consider, that a claimant under these provisions of the statute should rather be regarded as a party defending, than as a party suing, or prosecuting; and, therefore, that a guardian should be required in the case of an infant claimant, to protect the interests of the infant in court. Here the appearance was by prochein ami, and the record offered in evidence does not show any such hearing and trial of the claim, as we deem to be necessary in such a case. No evidence appears to have been offered in aid of the record, if, indeed, such evidence would have been admissible. We think the record was correctly excluded.

Judgment of county court affirmed.

TROVER WILL LIE FOR JUDGMENT: Hudspeth v. Wilson, 21 Am. Dec. 344; or for shares of stock: Payne v. Elliott, 54 Cal. 341, where the principal case is cited as an illustration that the action no longer exists as it did at common law, but has developed into a remedy for the conversion of every species of personal property.

Father, as Guardian by Nature, not permitted to have possession, use, and control of child's property: Fonda v. Van Horne, 30 Am. Dec. 77; Miles v. Kaigler, Id. 425; nor has he authority to receive a legacy left to his child: Johnson v. Johnson, 29 Id. 72.

WOODWARD V. THACHER.

[21 VERMONT, 580.]

UNSOUND HORSE WARRANTED SOUND MAY BE SOLD BY VENdee, and DamAGES FOR DECEIT will be the difference between what the horse sold for and what he would have been worth if as warranted, if common prudence and discretion are exercised in the sale.

TRESPASS on the case for deceit in exchange of a horse. The charge to the jury, to which the defendant excepted, was, that if the defendant warranted the borse, and if it was then unsound, the plaintiff was entitled to recover as damages the difference between what he obtained for the horse and what it would have been worth if sound, as warranted, if in keeping, treating, and disposing of it the plaintiff acted with ordinary care, diligence, prudence, and discretion; and if the horse, after being sold, had recovered by the treatment it received, it would not diminish the plaintiff's claim, if the recovery was contrary to reasonable expectations. The plaintiff had a verdict. It was insisted by the defendant that the plaintiff should have kept and treated the horse as kept and treated after the plaintiff had disposed of it, or should have offered to return it.

Washburn and Marsh, and Tracy and Converse, for the defend

ant.

C. Coolidge, for the plaintiff.

By Court, HALL, J. We think the charge of the county court was entirely correct. The defendant had warranted the horse sound, when he was unsound. He had violated his contract. The plaintiff found a different horse on his hands from the one he had contracted for-a sick horse, which he can not be supposed to have wanted. It would be unreasonable that he should be obliged to incur the trouble and risk of keeping him for a long period, in order, by experiments in medical or other treatment, to ascertain if he could not be made more valuable to him. It is but just that he should be at liberty to get the horse off his hands in the best manner he could; and if, in disposing of him, he acted with common prudence and discretion, we can see no reason, why the price obtained for him should not be deemed the proper measure of his value. The difference between the price obtained and what the horse ought to be worth by the warranty would be the actual loss which the plaintiff would sustain by the defendant's breach of contract; and it is right that the plaintiff should be allowed to recover it.

It is insisted in behalf of the defendant, that, by the English authorities, the price for which an unsound horse is sold by the purchaser can not be taken as the measure of his value, in estimating damages, unless the purchaser have previously offered to return him to the seller. But the authorities cited do not support this position. They merely show, that when the plaintiff seeks to go beyond the difference in value between the horse