ton, 45 id. 430; Campbell v. Fair Haven, 54 id. 336; Haynes v. Burlington, 38 id. 350; Iine v. Pomery, 40 id. 103; Richmond v. Aiken, 25 id. 324. As to expert testimony, see Fraser v. Tupper, 29

Vt. 409.

ROYCE, Ch. J. This was an action brought to recover for injuries to the plaintiff's person and property occasioned by the insufficiency of a highway. The first exceptions taken were to the permitting of certain questions to be put to the witnesses, James W. Doe and John B. Locke. It does not appear what answers were given to the questions. It is incumbent on the plaintiff to show that the answers were prejudicial to him. The court cannot presume that they were; and nothing here shows that they might not have been favorable to the plaintiff. The questions were not evidence, and it was not error to allow them to be put.

The insufficiency complained of in the highway was a gully nearly in the center of it and extending several rods, into which the plaintiff drove in the night-time. It appeared that the bits attached to the harness of one of the horses the plaintiff was driving were broken, and it was an important question what effect the breaking of these hits had in bringing about the accident, and whether they could have ocen broken by pulling on the reins, or by the horse stepping into the gully. As tending to show how they were broken, the plaintiff offered to prove by one Carleton that bits in a horse's mouth could be broken by pulling on the reins, and, particularly, if the horse stepped into any hole or depression that would let him down. It was an offer to give the opinion and judgment of the witness in evidence upon a question that it was the exclusive province of the jury to determine, and upon which they were as well qualified to judge as the witness. Neither was it allowable to show by the same witness that he had had bits broken in a way similar to the way plaintiff claimed his were broken. If testimony of that character is to be admitted it should certainly first be shown the bits were similar in strength and construction.

The plaintiff then offered to inquire of the same witness, as an expert, how, in his judgment, the bits could have been broken. It will be observed that it does not appear that the court had decided that the witness was qualified to testify as an expert at the time the offer was made. Whether he was so qualified or not was a preliminary question to be determined by the court; and it not being shown that the court had decided that he was so qualified, we cannot say that it was error to exclude his opinion. The fact that a witness for the defendant had testified without objection that in his opinion the bits were not broken in the manner claimed by the plaintiff, would not render the opinions offered admissible. It does not appear whether the opinion given by this witness was upon his direct or cross-examina tion, and all reasonable presumptions are to be made in support of the judgment. If that opinion was given in cross-examination, it was not allowable for the plaintiff to introduce the opinions of others in opposition to it.

There was no error, and the judgment is affirmed.
Judgment affirmed.

NEW TRIAL.

BRADLEY FERTILIZER Co. v. FULLER.
January 15, 1886.

The plaintiff offered one witness on an important issue, so early in the trial, that, if admitted, he could have procured the attendance of other witnesses. The court at first ruled against it, but on further consideration decided to admit it; but not until it was too late to summon the witness. Held a good cause for a new trial.

EVIDENCE-FRAUD.

In an action for replevin against the assignee of an insolvent debtor to recover property claimed to have been obtained by the debtor through a fraudulent sale procured by false representations as to his financial condition, evidence is admissible of other similar purchases made about the same time.

Petition for new trial.

The affidavit of the plaintiff's attorney stated in part: "As to the testimony of the kind given in the deposition of B. W. Currier, I did have some knowledge, and intended to use it on said trial; but I was somewhat in doubt as to its admissibility, and what the court would do in admitting it. I, therefore, had one witness as to such testimony brought from Boston, and offered it; and it was excluded by the court. I did this the first day of the trial, so that I could telegraph to Boston for others that night, and have them in court the next morning, on the going in of the court; and had ample time for that purpose before the plaintiff would rest its case." The deposition of Currier related to the false representations made in Boston by Hosea Welch, Jr. The case was heard on exceptions and the petition for a new trial. As to the evidence, the exceptions stated: "The plaintiff's evidence further tended to show that during the first days of October, 1882, said Welch, 2d, went to Boston, and purchased goods on credit to the amount of about $2,700; that said Hosea Welch, Jr., was present at one or more of the places where he was purchasing goods, and aided him in selecting goods. The plaintiff offered to show that said Welch, 2d, and Welch, Jr., while thus together made false representations as to the financial standing of said Welch, 2d, before and while making such purchases; but did not offer to show that such representations in any way came to the knowledge of the plaintiff or its agent before the sale of the phosphate. The court refused to admit the evidence."

.

S. C. Shurtleff, for plaintiff. The evidence offered by the plaintiff as to the false representations was admissible. Hall v. Naylor, 6 Duer, 71; Rowley v. Bigelow, 12 Pick. 307; Pequeno v. Taylor, 38 Barb. 375; Hennequin v. Naylor, 24 N. Y. 139; Conyers v. Ennis, 2 Mason, 236; Seligman v. Kalkman, 8 Cal. 207; Fitzsimmons v. Joslin, 21 Vt. 129. The plaintiff was taken by surprise by the

action of the court and is entitled to relief.

Gordon & Gary and Lamson, for the defendant. The court properly excluded the testimony as to the false representations made by Welch, Jr., because the plaintiff did not show, nor offer to show, that such representations ever came to its knowledge, or that of its 27 Me. 35; 3 Cush. 413. A new trial should not be granted.

agent.

VOL. III.-100

The evidence is cumulative. Knapp v. Fisher, 49 Vt. 94; Dodge v. Kendall, 4 id. 31; Bullock v. Beach, 3 id. 73. It must be a strong case to grant a new trial on account of surprise. Briggs v. Gleason, 27 Vt. 114; Haskins v. Smith, 17 id. 263.

ROYCE, Ch. J. The plaintiff offered to show that when Hosea Welch, 2d, accompanied and assisted by Hosea Welch, Jr., was in Boston early in October, 1882, purchasing goods, the latter made false representations in regard to the financial standing and condition of Hosea Welch, 2d, in the presence of said Welch, 2d. Goods to the amount of about $2,700 were purchased on credit at that time, and the representations were made in connection with the purchase of such goods. The phosphate replevied in this suit was ordered by Hosea Welch, 2d, October 28, 1882, at which time he was, and for some time previous had been, badly insolvent, and only sustained, financially, by credit furnished by Hosea Welch, Jr., and one Clark, who, November 1, 1882, refused longer to indorse his paper, and took possession of his entire stock, including said phosphate, under an assignment which was subsequently vacated by proceedings under the insolvent act, in which the defendant was appointed assignee. The evidence of what transpired in Boston was offered to show a fraudulent intent on the part of Hosea Welch, 2d, at that time to get goods into his possession without the intention or expectation of paying for them, as tending to show a similar intent and purpose in contracting for the phosphate a few days later. The court, early in the trial, ruled against the admissibility of this evidence, but afterward, on further consideration, decided to admit it. The plaintiff's counsel made the offer early, so that if the evidence were admitted he could procure the attendance of witnesses from Boston, and it appears that had it then been admitted he would have had ample time to get them to St. Johnsbury; but when the court finally decided to admit the evidence, it was too late for the witnesses to be summoned and get to the place of trial before its conclusion.

It is now claimed that the evidence offered was not legally admissible. The title to the property replevied is in question in this suit. If Welch ordered or contracted for it with the fraudulent intent not to pay for it as agreed, the sale was voidable at the election of the vendor, and he has elected to rescind it by the bringing of this suit. Benj. Sales, § 433 et seq. It has long been the settled law that evidence of the making of other purchases or contracts shown to be tainted with such fraudulent purpose at about the same time, and under such circumstances as might fairly support the presumption that the purchase in question was made with the same purpose and intent, is admissible. Best Ev. 487, note 1; 1 Greenl. Ev., § 53. The cases of Pierce v. Hoffman, 24 Vt. 525, and Eastman v. Premo, 49 id. 355, are full authority for that proposition in this State. The evidence offered was material as bearing upon the question of fraudulent intent on the part of the purchaser affecting the transaction in issue, and from what appears in the case it is clear that the plaintiff, without fault, has been deprived of the opportunity to use it. We cannot say with certainty that if the evidence contained in the affida

vits attached to the petition for a new trial had been before the jury, the result of the trial would have been different, but it seems highly probable that it would have been, unless that evidence were met by opposing testimony such as is not shown here. The petition for a new trial must, therefore, be granted.

As it does not seem probable that a consideration of the other exceptions taken on the trial would be of substantial benefit at this time, or tend to a more speedy or economical disposition of the case, we do not pass upon them.

The judgment in the principal case is pro forma reversed and case remanded, and the petition for a new trial is granted, but with

The defendant owed a debt to the plaintiffs, C. & W., as partners, and an individual debt — $9.44- to W W., having both accounts in his possession, “asked the defendant for some money on the accounts;" and thereupon the defendant paid $15, but gave no direction as to the application of the payment. The referee found, that when W. spoke to the defendant about the plaintiffs' account, that he always insisted that he would not pay it; but it did not appear that he denied his liability at the time of the payment. W. applied the excess, $5.56, on the plaintiffs' account, about the time of the commencement of this suit. Held, that the application was properly made; that the law would imply a promise from the payment to pay the balance; and that it was incumbent on the defendant to prove that he denied his liability at the time he paid the money.*

Heard on a referee's report, December term, 1883, ROWELL, J., presiding. Judgment for the plaintiffs.

It was found, that the plaintiffs from May, 1871, to March, 1872, were merchants and partners; that during this time the debt in question was contracted; that the payment was made January 17, 1879; that the writ in this suit was dated January 1, 1881; that when the plaintiffs' firm was dissolved, the said Way took the books and accounts into his hands for the purpose of collecting the debts due and paying the liabilities.

The referee found, in part: "It appeared that the defendant had paid $5 to the plaintiff, George M. Way, on three different occasions, and there was a conflict of testimony whether this was paid to be applied on the demands Way held against the defendant, or loaned by the defendant to Way. The plaintiffs' books showed that enough of said $15 had been applied on said account of George Way to pay it, and the balance, amounting to said sum of $5.56, was applied on the plaintiffs' account."

"No credit was given defendant on plaintiffs' books until about the time this suit was brought. Whether it was put on the book just before or just after this suit was brought did not definitely appear." The other facts are sufficiently stated in the opinion.

John H. Watson, for defendant. The burden is on the plaintiffs to * See 16 Moak's Eng. Rep. 273.

show that the statute bar is removed. Wood Lim., § 116; Briggs v. Roberts, 85 N. C. 151. The payment in order to remove the bar must be made on account of the debt for which the action is brought. Wood Lim., § 97. The question is, did the debtor intend to make a part payment on this particular debt? Pond v. Williams, 1 Gray, 630; Nash v. Hodgson, 6 De G., M. & G. 474; Wainman v. Kynman, 1 Exch. 118; Tippets v. Heane, 1 C. M. & R. 252; Wood Lim., § 109; McIntire v. Corss, 18 Vt. 451; Phelps v. Stewart, 12 id. 256; Bowker v. Harris, 30 id. 424. Way had no right to apply the $5.56 on the outlawed account. Ayer v. Hawkins, 19 Vt. 26; Bancroft v. Dumas, 21 id. 456; Story Eq., § 459; Caldwell v. Wentworth, 14 N. H. 431; Rohan v. Hanson, 11 Cush. 44. The $5.56 was not applied when it was paid. The plaintiffs have not shown that the application was made before suit was brought. This was necessary if they could apply it all. Robinson v. Doolittle, 12 Vt. 246; Pierce v. Knight, 31 id. 701; Langdon v. Bowen, 46 id. 512; Morgan v. Tarbell, 28 id. 498; Ramsey v. Warner, 97 Mass. 8. No implication of new promise arises from an application made by law. Wood Lim., § 101; Ramsey

v. Warner, supra.

J. K. Darling, for plaintiffs. A part payment of an account barred by the statute amounts to an admission that the account is unsettled and removes the bar. Hutchinson v. Pratt, 2 Vt. 146; Strong v. McConnel, 5 id. 338. A promise to pay the residue will be implied from the payment, there being no protestation against further liability. Ayer v. Hawkins, 19 Vt. 26; Goodwin v. Buzzell, 35 id. 9. Way had a right to make the application. Chapman v. Goodrich, 55 Vt. 354; Davis v. Smith, 48 id. 52; Pierce v. Knight, 31 id. 701.

ROYCE, Ch. J. The only question presented by the report of the referee is as to the legal effect of the payment of $15 in July, 1879. At the time that payment was made the plaintiff, Way, had an account of his own against the defendant, amounting to $9.44, and also the account of the plaintiffs, which this suit is brought to recover for, and asked the defendant for some money on the accounts. Thereupon the defendant paid Way $15, which overpaid Way's account $5.56, which sum was afterward, and about the time this suit was brought, credited to the defendant by the plaintiffs.

No direction was given by the defendant as to the application of the money paid by him, and it does not appear that Way had any other accounts or claims at that time against the defendant than those above mentioned. It has long been settled in this State that part payment of a debt barred by the statute, if made without protestation against further liability, is a recognition and acknowledgment of such debt at the time of making the payment, from which a promise to pay the residue shall be implied. Ayer v. Hawkins, 19 Vt. 26. And upon the neglect of the debtor to direct the application of a payment made by him, the right to make it generally devolves upon the creditor. In the absence of any specific directions as to the application of a payment the intent of the party making it, as ascertained from the circumstances under which it was made, may control the right to make it. Here there is no fact found that tends to show that the debtor intended any