as sound and unsound, and over and above that difference claims to recover special damages for the keeping of the horse until he could sell him, he must show that he had previously offered to return him. None of the cases go further. In Caswell v. Coare, 1 Taunt. 566, the reason given by Chief Justice Mansfield for the rule, that the plaintiff must offer to return the horse, before he can claim damages for the keeping, is, that it is not the defendant's fault that the plaintiff keeps him. For he adds, "when the warranty was broken, the plaintiff might instantly have sold the horse for what he could get, and might have recovered the residue of the price in damages." It is only then, where the purchaser desires to charge the seller with the expense of keeping the horse, until he can have an opportunity of selling him, that any offer to return him is necessary.

It distinctly appearing from the bill of exceptions, that the jury, under the charge, could have found no other damages than the difference between the horse as warranted and what he was actually worth to the plaintiff, we are satisfied the verdict was right. The judgment of the county court is therefore affirmed.

MEASURE OF DAMAGES FOR BREACH OF WARRANTY OF QUALITY, OR DECEIT IN SALE OF CHATTEL, is the difference between its value as furnished, and its value had it been as warranted: Voorhees v. Earl, 38 Am. Dec. 588; Cary v. Gruman, 40 Id. 299, and note; Stiles v. White, 45 Id. 214, and note; Morse v. Hutchins, 102 Mass. 440, citing the principal case; and see Monell v. Colden, 7 Am. Dec. 390, in reference to a sale of land.

WHITE v. MORTON.

[22 VERMONT, 15.]

DECLARATIONS BY OWNER OF FARM AS TO TERMS ON WHICH OCCUPANT WAS CULTIVATING IT, made in presence of latter, and assented to by him, or in connection with some act of owner, as to carrying on the farm, are admissible as showing mutual recognition of terms, or as part of the res gestæ, in action of trover for share of products by occupant against officer selling same on execution against owner.

LAND OWNER IS INCOMPETENT WITNESS for officer in action of trover by occupant for share of products of farm sold by officer on execution against land owner.

TROVER BY OCCUPANT FOR UNDIVIDED MOIETY OF CROPS OF LAND WORKED ON SHARES will lie against officer selling whole on execution against land

owner.

TROVER for straw, hay, and grain. The facts are stated in the opinion.

A. Underwood and C. B. Leslie, for the defendant.

J. Potts, for the plaintiff.

By Court, ROYCE, C. J. This was trover for a quantity of straw, hay, and grain, which the defendant, as deputy sheriff, attached and sold on process against one David White and as his property. The plaintiff claimed, that he was a joint owner of the property with David White, on the ground of having raised it upon the farm of David White, while he, plaintiff, carried on the farm upon shares, or at the halves, in the season of 1846. And to prove that he was so carrying on the farm, when these crops grew upon it, the plaintiff offered in evidence the declarations of David White, that such was the fact. From the statement in the bill of exceptions and the charge of the judge, we must understand the jury to have found, that these declarations were made in the season of 1846, in the presence of the plaintiff, and were assented to by him; or else, that they were made in that season, "in connection with some act of David White in carrying on the farm"-it appearing that he labored upon the farm with the plaintiff.

We consider, that this evidence was admissible, either as showing a mutual recognition by David White and the plaintiff of the terms on which the plaintiff was cultivating the farmor as proving declarations of David White properly constituting part of the res gesta. We have no occasion to decide, whether a mere isolated admission of David White, during that period, would be admissible to affect the defendant, as a party claiming under him; for the ruling of the county court did not go to that extent. And for this reason, if for no other, the case is distinguishable from that of Hines et al. v. Soule, 14 Vt. 99; Carpenter v. Hollister, 13 Id. 552 [37 Am. Dec. 612]; and Warner v. McGary, 4 Id. 507. It was as admissions merely, that the declarations offered in those cases were held not to be admissible: See also 1 Stark. Ev. 47 et seq.; Pool v. Bridges, 4 Pick. 378; Boyden v. Moore, 11 Id. 362; Elkins v. Hamilton, 20 Vt. 627.

The other decisions at the trial-as that David White was not an admissible witness for the defendant, and that trover would lie for the plaintiff's undivided moiety of the crops, when the defendant had sold the whole upon the execution-have not been questioned in the argument. It is sufficient to say, that both of these decisions are sustained by repeated determinations of this court.

Judgment affirmed.

DECLARATIONS, WHEN ADMISSIBLE AS PART OF RES GESTE: See Tenney v. Evans, 40 Am. Dec. 194, and the prior cases in this series collected in the note.

TROVER BY ONE TENANT IN COMMON OF CHATTEL will lie against another for destruction of the chattel: Sheldon v. Skinner, 21 Am. Dec. 161; Hyde v. Stone, 22 Id. 582; Lucas v. Wasson, 24 Id. 266; Lowe v. Miller, 46 Id. 188; Hall v. Page, 48 Id. 235; but there must be a destruction: Welch v. Clark, 36 Id. 368; Gilbert v. Dickerson, 22 Id. 592; Sanborn v. Morrill, 40 Id. 701. As to whether a sale by one tenant in common is a conversion, there is some conflict; on the one side it has been held that it is: Hyde v. Stone, 18 Id. 501; Nowlen v. Colt, 41 Id. 756; Warren v. Aller, 44 Id. 406; and on the other, that it is not: Welch v. Clark, 36 Id. 368; Rains v. McNairy, 40 Id. 651; Sanborn v. Morrill, 40 Id. 701; and see Bell v. Layman, 15 Id. 83; Farr v. Smith, 24 Id. 162. The attaching of a chattel on process against a tenant in common is not such a destruction as to give the other tenant a right of action of trespass or trover against the attaching officer or creditor: Welch v. Clark, 36 Id. 368; and see Heald v. Sargeant, 40 Id. 694. A tenant in common of personal property can only recover in trespass or trover to the extent of his interest in the property against an officer who has regularly attached, levied upon, and sold the entire property as the property of the other tenant in common: Wilson v. Blake, 53 Vt. 310, citing the principal case. An officer levying upon and selling the chattel under process against one co-tenant is liable for trespass by the other: Rains v. McNairy, 40 Am. Dec. 651, Waddell v. Cook, 37 Id. 372; Lothrop v. Arnold, 43 Id. 256.

ROBINSON V. WILSON.

[22 VERMONT, 35.]

RECORD OF CONVICTION IN CRIMINAL PROSECUTION of plaintiff for prior assault on defendant, inadmissible in justification by the latter, in an action for assault and battery.

ALLOWANCE OF CERTIFICATE BY COUNTY COURT, that trespass of defendant was willful and malicious, is not revisable, so far as it proceeds on matter of fact.

AFFIDAVIT OF JURORS that they considered trespass not willful and malicious, inadmissible on question of allowing certificate to the effect that it was willful and malicious.

EVIDENCE BY Defendant of CharACTER OF TRESPASS, inadmissible on question of allowing certificate to the effect that it was willful and malicious. LEGAL INFERENCE AS TO CHARACTER OF ASSAULT can not be drawn from the verdict of a jury.

TRESPASS for assault and battery. Defendant relied upon plaintiff's having committed the first assault, as justification, and offered in evidence the record of conviction of plaintiff for this assault, but it was excluded by the court. A verdict for the plaintiff for one cent damages having been returned, and judgment thereon rendered, the plaintiff moved for a certificate that the trespass by defendant was willful and malicious. Affi

davits of the jurors were then offered by the defendant to show that they did not consider the assault willful or malicious, and also evidence of the character of the assault; but all this was rejected by the court. It was then insisted by the defendant, that the legal inference of the verdict was, that his act was not willful or malicious. The certificate was granted. Exceptions by defendant.

T. P. Redfield, for the defendant.

J. Cooper, for the plaintiff.

By Court, BENNETT, J. We think there was no error in the county court, in excluding the record of the conviction of the plaintiff in the prosecution in behalf of the state. It might have been procured by the testimony of this very defendant, who now proposes to use the record. If put in, it would prove nothing as to the excess of force. Both parties may be guilty of a breach of the peace, and liable to be proceeded against criminally.

In relation to the allowance of the certificate by the county court, it is mostly a question of fact; and the decision of the county court is not revisable, so far as it proceeds on matter of fact. If it were allowed in an improper case, it would perhaps be otherwise. The opinion of the jury, that they did not consider the trespass willful and malicious, is not material. The court are to determine that fact; and they have the right to determine it upon what was disclosed upon the trial. Where there has been a full trial, it would be absurd to hold, that, on the question whether the certificate ought to be allowed, the court are bound, as matter of law, to hear the case over again. We think it safe to hold, that it must rest in the sound discretion of the county court, whether the case is such a one as to require a further hearing. We can not perceive, that any legal inference, as to the character of the assault, is to be drawn from the verdict of the jury. If any inference is to be drawn, it was an inference of fact which the county court might draw.

From the verdict of the jury it might be supposed, they considered the excess of force as small; and it is not usual for juries to measure the excess of force by so small a scale, as was adopted in this case, provided it was upon that ground the verdict was given for the plaintiff; but probably it might have been a compromised verdict. But be this as it may, the amount of damages given by the jury can not control the county court in relation to the certificate. They are to judge for themselves, whether

it should be allowed on the ground that the trespass was willful and malicious, or not.

The result, then, is, that the judgment of the county court is in all things affirmed.

RECORD OF FORMER CONVICTION, HOW FAR EVIDENCE: See Commonwealth v. McPike, 50 Am. Dec. 727.

CERTIFICATES THAT ACTS OR NEGLECTS WERE WILLFUL AND MALICIOUS.Sec. 1502, c. 82, Rev. Laws of Vt. (1880), provides, that "a person shall not be admitted to the liberties of the jail yard, who is committed on execution upon a judgment in an action founded on tort, when the court, at the time of such judgment, adjudges that the cause of action arose from the willful and malicious act or neglect of the defendant, and that the defendant ought to be confined in close jail, and a certificate thereof is stated in or upon such execution." It has been held, on the authority of the principal case, that the granting or refusing such certificate that the cause of action arose from the willful and malicious act or neglect of the defendant was largely a matter of fact to be determined by the county court, and so far as the decision of that court was based upon its finding such facts as are necessary to support the certificate, it was not revisable in the supreme court: Melendy v. Spaulding, 54 Vt. 521; Soule v. Austins, 35 Id. 518; Whiting v. Dow, 42 Id. 264.

BARLOW v. WAINWRIGHT.

[22 VERMONT, 88.]

ESTATE IN LANDS CREATED BY PAROL, HAVING FORCE AND EFFECT OF ESTATE AT WILL by revised statutes, chapter 60, section 21, may be changed into tenancy from year to year, when possession is continued from year to year, and rent is paid semiannually.

TENANT AT WILL, BECOMING TENANT FROM YEAR TO YEAR, can not at any time during year, at pleasure, surrender the premises against landlord's consent, and thus excuse himself from paying rent.

TENANT ABANDONING POSSESSION OF PREMISES IS LIABLE FOR RENT, if tenancy remains undetermined.

TENANT'S TAKING IN PARTNER IN BUSINESS CARRIED ON IN PREMISES LEASED does not alter the nature of tenancy, no new agreement having been made with lessor.

PAROL AGREEMENT CREATING ESTATE AT WILL, although modified by being turned into estate from year to year, governs the rights of parties as to amount of rent, and times when same is payable.

ASSUMPSIT for use and occupation of a store. The opinion states the facts.

Smalley and Phelps, for the defendant.

C. Russell, for the plaintiff.

By Court, BENNETT, J. It seems from the bill of exceptions, that the defendant hired of the plaintiff his store, by a verbal