grounds of public convenience or expediency, the court thinks it better to nullify the law.

The plea alleges that the defendant's cause of action existed against the plaintiff as well as Collins. The suit for the injury to the heifer might have been maintained against the railroad company. Had it been so brought, and had the officers stopped the train to attach railroad property on board, the same mischievous consequences to the public would have resulted as those now portrayed. Can it be claimed that process against a railroad company is not to be served as it may be against other defendants because it will work inconvenience to the public? Process served upon an individual may work incidental injury to others. If a physician is arrested, his patients may suffer.

It is quite apparent that the argument that public policy forbids the service of process as made in this case is unsound and illogical. The legislature can establish any regulations in the premises that may be needed.

The judgment is reversed, and judgment is rendered that the demurrer be overruled and the third plea is sufficient. The cause is remanded, with leave to the plaintiff to replead on the usual terms.

ON A FORMER HEARING OF THIS CASE, the court held that a railroad company may maintain an action against one who maliciously causes the arrest of the engineer of one of its trains, with intent to delay the train and injure the company: St. Johnsbury etc. R. R. Co. v. Hunt, 55 Vt. 570; 45 Am. Rep.

639.

BARBER'S ADMINISTRATOR v. BENNETT.

[60 VERMONT, 662.]

DECLARATIONS OF PLAINTIFF IN INTEREST AGAINST VALIDITY OF HIS CLAIM, though made before he became the owner of the claim, are admissible and competent evidence to establish a defense in a suit upon such claim, and it is error to limit the declarations to the impeachment of the plain. tiff in interest.

ASSUMPSIT. Verdict for the plaintiff. The opinion states the case.

W. B. Sheldon and J. C. Baker, for the defendant.

Batchelder and Bates, and Burton and Munson, for the plain

tiff.

ROWELL, J. The cause of action in this case, if any there be, is non-negotiable, and was assigned to Mrs. Jewett, the intestate's daughter, before suit brought, who thereby became the equitable owner thereof, and the suit is prosecuted for her benefit; so she is plaintiff in interest. One item sought to be recovered is for defendant's board in the intestate's family from October, 1867, to October, 1870, during most of which time Mrs. Jewett and her husband were also members of the family, and Mrs. Jewett had knowledge of the justness of the item.

The defendant showed by several witnesses that before 1871, which was long before the assignment to her, Mrs. Jewett said that the defendant more than paid his board while he lived in the family. Mrs. Jewett was a witness, and denied having made such statements. In the charge, the court limited the testimony to the impeachment of Mrs. Jewett, and denied its competency as tending to show the fact of payment, to which the defendant excepted; and we think the exception broad enough to raise the question.

Robinson v. Hutchinson, 31 Vt. 443, if followed, is decisive on this point. There a will was contested on the ground of want of testamentary capacity, and undue influence of the executor and his brother, who were sons of the testatrix and legatees under the will. The contestants proved that at one time when his mother was sick, about four years before the will was made, the executor said she "did not know what she was talking about"; and this was held proper, because he had consented to act as executor, and had taken upon himself the duty of sustaining the will, and was interested in its provisions. It is not important that the executor was a party of record as well as in interest, for the law looks chiefly to the real parties in interest, and regards them as though they were parties of record: 1 Greenl. Ev., sec. 180; 1 Phill. Ev. *486; Hanson v. Parker, 1 Wils. 257; while, on the other hand, the admissions of a party of record who is a mere trustee, or whose name is used as matter of form, are not receivable: Sargeant v. Sargeant, 18 Vt. 371; nor, as we shall see hereafter, are the admissions of one who sues in a representative capacity only, unless made while that character was sustained.

We think Robinson v. Hutchinson, supra, is sound, though Burton v. Scott, 3 Rand. 399, is a similar case, and decides the other way, on the ground that the rule that the admissions of a party are evidence against him rests upon the presumption that no one will make a declaration against his own in

terest unless it is true, and hence, that the interest must exist when the declaration is made. If this were the true ground of the rule, the logic of that case is irresistible. But it is not the true ground. The mistake lies in supposing the presumption to be the test of admissibility, whereas it is only a test of credibility; for, as said by Professor Greenleaf, in regard to many admissions, it cannot be supposed that, at the time of making them, the party believed they were against his interest, but often the contrary. Therefore, he says such evidence. seems to be more properly admissible as a substitute for the ordinary legal proof: 1 Greenl. Ev., sec. 169. Mr. Wharton says it is admissible, either as yielding presumptions against the party charged, or as relieving (under ordinary circumstances) the party offering it from the necessity of more formal proof: 2 Wharton on Evidence, sec. 1077.

Mr. Justice Stephen defines an admission to be a statement that suggests an inference as to a fact in issue, or a fact that is relevant or deemed to be relevant to such fact, made by or on behalf of a party to a proceeding; and says that every admission is deemed to be a relevant fact as against the person making it, except in certain cases; as, when made by a person suing or sued in a representative character only, in which case it must be made while the person making it sustained that character: Stephen's Digest of Evidence, 53, 54. Dent v. Dent, 3 Gill, 482, to which we have been referred, comes within this exception; and there are many other cases to the same effect. So when, by succession of title, a party to a suit is so far in privity with another that he could be affected by his acts, then he can be affected by his admissions only when they are made during the latter's interest in the subject-matter of the suit; for then only can he ingraft them upon the interest so that they will follow it into the hands of his successor. But as to the self-disserving declarations of the real party to the suit, this, as we have seen, is not the test of admissibility. And although the best text-writers do not all suggest precisely the same ground of admissibility, yet we venture to say that it is a sufficient ground that they are the declarations of a party in interest, and are relevant to the issue. This view renders it unnecessary to consider the other exception.

Judgment reversed and cause remanded.

DECLARATIONS AGAINST INTEREST OF PARTY ARE ADMISSIBLE IN EVI DENCE AGAINST HIM: Dennis v. Chapman, 19 Ala. 29; 54 Am. Dec. 186.

SMITH V. NIAGARA FIRE INS. Co.

[60 VERMONT, 682.]

QUESTION, THOUGH IMPROPER, IF NOT SHOWN TO HAVE BEEN ANSWERED by the witness to whom it was put, is not ground for reversal.

PAYMENT OF MORTGAGE NOTE IS NOT PRESUMED UNTIL FIFTEEN YEARS

have elapsed since its maturity.

MORTGAGE PAID, BUT NOT DISCHARGED, IS NOT ENCUMBRANCE, within the meaning of an insurance contract.

FAILURE OF INSURED TO STATE THAT HE BELIEVED PROPERTY WAS MORTGAGED is an omission to state information material to the risk, although the mortgagee had, without the knowledge of the insured, previously voluntarily destroyed the note secured by the mortgage, the insured having, at the time of the contract of insurance, warranted that he had not omitted to state to the company any information material to the risk. At least, such failure is evidence from which that fact might be found, and if it was a question of law, the court should direct a verdict for the defendant, or if it was a question of fact, it should be submitted to the jury with proper instructions.

GENERAL AGENT OF INSURANCE COMPANY HAS POWER TO WAIVE STATEMENT OF Loss, notwithstanding such statement is by the terms of the policy a condition precedent to recovery, unless his power is restricted, and the restriction was known to the insured.

POWER TO WAIVE STATEMENT OF LOSS IS NOT POSSESSED BY LOCAL AGENT of an insurance company, who has never been held out by it as possessing any other authority than to receive proposals for insurance, fix rates of premiums, and issue policies, and who has never acted in the settlement of losses.

GENERAL AGENT OF INSURANCE COMPANY CAN WAIVE PROOF OF Loss ONLY IN MANNER PROVIDED in the contract; he cannot waive such proof orally when the contract requires the waiver to be indorsed on the policy.

ASSUMPSIT on an insurance policy. Verdict for the plaintiffs. The second request of the defendant, referred to in the opinion, was, that a verdict should be directed for the defendant, "because at the time the application for the insurance was made, and upon which the defendant company issued the policy upon which this suit is brought, she, the said plaintiff, represented that the property insured was not encumbered, when in fact the plaintiffs had executed the mortgage aforesaid, and had not paid the same, and had no reason to believe but what said mortgage was a valid and subsisting claim and mortgage at the time said application for insurance was made." The other facts are stated in the opinion.

Haskins and Stoddard, for the defendant.

Waterman, Martin, and Hitt, and S. T. Davenport, for the plaintiffe.

TAFT, J. 1. The defendant objected to an inquiry of a witness upon the subject of damages. Conceding the question to have been improper, the exceptions do not show that it was answered. To avail the defendant, it must so appear, and that the answer was prejudicial to it: Carpenter v. Corinth, 58 Vt. 214.

2. The assured warranted that there was no encumbrance upon the property. There was then upon record an undischarged mortgage for eight hundred dollars, with accrued annual interest for sixteen years. The plaintiffs claimed that the presumption of payment applied, fifteen years having then elapsed since the date of the note and mortgage. The note matured in July, 1875, and it was at the latter date that the fifteen years began to run, so as to afford a presumption of payment from lapse of time. The fifteen years have not yet expired, the presumption, therefore, did not arise.

3. Was the undischarged mortgage an encumbrance within the meaning of an insurance contract? It has sometimes been so held: Warner v. Middlesex Mut. Ass. Co., 21 Conn. 444; Muma v. Niagara etc. Ins. Co., 22 U. C. Q. B. 214; but we think the doctrine generally prevails, that if the mortgage debt has been paid, the undischarged mortgage is not an encumbrance: Merrill v. Agricultural Ins. Co., 73 N. Y. 452; 29 Am. Rep. 184; Hawkes v. Dodge Co. M. Ins. Co., 11 Wis. 188, as cited in Bates's Digest of Fire Insurance Decisions, 256, and we so hold.

4. The assured warranted that they, at the time of the contract, had "not omitted to state to the company any information material to the risk." The undischarged mortgage was held by Mrs. Eames, and she had, prior to that time, secretly and voluntarily destroyed the note, but the assured had not been informed of that fact, so that they must have believed that the mortgage debt was then a valid subsisting lien upon the property. No payment had been made on either the principal or interest. The more important question in respect to the mortgage is, whether the failure to state to the company that they believed the property was mortgaged was not an omission to state information material to the risk. Statements as to encumbrances are material; they are made so by the policy; they have regard to the risk. The object of inquiry in respect thereto is to ascertain the interest of the applicant in the property, so that the insurer can take into consideration the interest the applicant has in its preserva

AM. ST. REP., VOL. VI.-10