my leg." "Question. State by what you were struck. Answer. I was struck by a mallet of some kind. Q. Describe how you happened to be struck. 4. I was going to Floral Hall looking for Mr. Hammond, as he was described to me. About every gentleman I saw I was looking attentively to see if it was Mr. Hammond, and, walking slowly by, the first thing I knew I was knocked from my feet. Q. How? A. By some one swinging a beetle. I did not see exactly how it was done; all I knew, I was struck with the beetle, and knocked on my back." Verdict for plaintiff for $725. Pitkin & Huse and T. R. Gordon, for plaintiff. Hard & Cushman and' " Heath & Willard, for defendant. TYLER, J. The plaintiff's evidence, upon which he rested his case, and upon which the defendants requested the court to direct a verdict in their favor, tended to show that the defendants, on September 8, 1884, and on the four succeeding days, held a joint agricultural and mechanical exhibition in Howard park, in Burlington; that the plaintiff paid his entrance fee on the first day of the exhibition, and was rightfully upon the grounds; that there was placed upon the grounds, about ten rods from the superintendent's tent, and in nearly a direct line between the tent and Floral Hall, a striking-machine, consisting of a box from two and a half to three feet long, a foot and a half high, and about sixteen inches wide, and so contrived that a person striking with a mallet weighing eight or ten pounds could test his strength by means of a pointer or indicator arranged in the box; that the plaintiff was passing along by the usual route from the superintendent's tent towards Floral Hall, and when near the machine, and not observing it, some person suddenly took up the mallet, and, in swinging it to strike a blow, hit the plaintiff and broke his leg. It appeared that the accident occurred between 2 and 3 o'clock in the afternoon; that the machine was seen at that place by plaintiff's witnesses as early as 12 o'clock, and one witness was confident he saw it there between 8 and 9 o'clock in the morning. The question presented by the plaintiff's evidence was whether or not the defendants were guilty of negligence in suffering this machine, with no guard around it, to remain upon the grounds at this place, and at a time when visitors were constantly passing and repassing it. The court was requested to hold as matter of law that they were not. Corporations are liable for their negligent torts, and for the negligence of their officers and servants acting in the course of their official duty or employment, in the same manner and to the same extent that individuals are liable under the same circumstances. 2 Mor. Corp. (2d. Ed.) §§ 725, 734; Boone, Corp. § 84. As the defendants were holding a public exhibition in this park, and inviting visitors thereto, it was their duty to render it a reasonably safe place for all persons who might lawfully be there in attendance. It was claimed in argument by defendants' counsel that, as the machine was not placed there by the defendants, and its use was foreign to the purposes for which these societies were organized, it was a case of ultra vires, unless the defendants recognized the act as done in their business; that there was no evidence that defendants had any interest in the machine, or that it was there by their permission, or that it was being used with their knowledge. There was evidence, however, that it was one of a kind of machines commonly exhibited at public gatherings of this kind, and that there were two or three of them on the grounds at this exhibition, and in about the same locality. The court could not assume, as matter of law, that these machines, as well as the peddlers' stands, victualing tents, and places of amusement, were not there by the defendants' permission. If it were not to be assumed that the machine was there by license, it was a question of fact whether it had been so long upon the grounds that the defendants ought, in the exercise of reasonable care, to have known of its presence. Whether it was dangerous or not depended upon its construction, and the manner in which it was used. These were questions of fact, or at least mixed questions of law and fact, which could not properly have been decided by the court. A remark made by REDFIELD, C. J., in Vinton v. Schwab, 32 Vt. 614, is applicable to this case: "But when there is no conflict in the testimony, in regard to the particular facts, that will not always make it a mere question of law which the court may determine. If it still rests upon discretion, experience, and judgment, it is matter of fact, and not of law merely." It was said by Ross, J., in Whitcomb v. Denio, 52 Vt. 390: "Whatever may be the rule in other states in regard to its being the duty of the court, when the facts are undisputed, to determine, as a matter of law, whether a thing has been done within a reasonable time, or with reasonable care, diligence, or prudence, or to determine any other fact which involves the judgment of the trier upon an existing state of facts and circumstances, it has been the almost universal practice in this state, from the earliest recollection of the oldest members of the court and bar, to submit such question to the determination of the jury." Fassett v. Roxbury, 55 Vt. 555. The only departure from this practice was in the often quoted case of Briggs v. Taylor, 28 Vt. 180. A case in point, as illustrative of the one under consideration, is Lax v. Corporation of Darlington, 31 Moak, Eng. R. 543, cited in plaintiff's brief. In that case the defendants were owners of a cattle market, and in the market-place they had erected a statue, around which they had placed a railing as a fence. The plaintiffs attended the market with their cattle, and occupied a particular site, for which they paid a toll. A cow belonging to them, in attempting to jump the railing, injured herself, and died from the injuries. The jury found that the railing was dangerous. The court held that the defendants, having received toll from the plaintiffs and invited them to the market with their cattle, were in duty bound to keep the market in a safe condition, and that an action would lie for the plaintiff's loss. It is insisted by defendants' counsel, to entitle the plaintiff to recover, it must appear affirmatively that he was in the exercise of at least ordinary care for his own protection, and that it did affirmatively appear that he was exercising no care at all, but, on the contrary, was guilty of gross negligence. To enable the plaintiff to make out a case, it was incumbent on him to show that the defendants were negligent in regard to this machine, and that no want of care on his part contributed to the happening of the accident. Not that he could testify, or that witnesses could testify in his behalf, that he was in the exercise of due care; but the burden was on him to produce such a state of the evidence as would enable the trier of the fact to say that the defendants were negligent, and that his own conduct was prudent. Walker v. Westfield, 39 Vt. 246; Bovee v. Danville, 53 Vt. 183. The plaintiff's evidence shows the manner in which he was walking past this machine, not knowing of its existence. Whether he was in the exercise of that degree of care which the law requires, or whether he was guilty of contributory negligence, was a question of fact for the jury, under proper instructions from the court. Hill v. New Haven, 37 Vt. 501. (60 Vt. 449) RICHARDS v. MOORE. (Supreme Court of Vermont. Franklin. September 11, 1888., 1. JURY-QUALIFICATION-ALIENS. Alienage is a disqualification of a juror. 2. SAME-PROOF OF ALIENAGE-PRESUMPTION. Proof that the juror took out naturalization papers after he had acted as juror raises a presumption that he was an alien at the time of the trial, especially where it is shown that he was of foreign birth. 3. SAME-WAIVER OF DEFECT. Where the fact of the disqualification was unknown to the defeated party or his counsel at the time of the juror's acceptance, it may be taken advantage of on motion to set aside the verdict. Exceptions from Franklin county court; before Justice Ross. Motion to set aside a verdict on the ground that one of the jurors was an alien. Motion pro forma overruled, and judgment rendered on the verdict. H. C. Adams and George A. Ballard, for defendant. The presumption of citizenship, drawn from the fact of residence, ceases when the fact of foreign birth appears. So does the presumption of the regularity of a verdict, which only amounts to this: that irregularity will not be presumed. 2 Best, Ev. § 360. The burden of proof then shifts. The probative force of the fact of residence is not equal to that of foreign birth. Birth creates citizenship in the country of birth. The presumption of alienage, drawn from foreign birth, is continuous, and conclusive unless met by proof that the disability has been removed by some method known to the law. Farr v. Payne, 40 Vt. 615; 1 Greenl. Ev. § 41; 2 Best, Ev. §§ 373, 405; Hauenstein v. Lynham, 9 Reporter, 265; Quinn v. Halbert, 52 Vt. 353. The rule of the common law was that the place of birth determined the question of citizenship, with the exception of children of embassadors. Calvin's Case, 7 Coke, 1; McIlvaine v. Coxe's Lessee, 4 Cranch, 209. Powell & Brown and Cross & Start, for plaintiff. The statute disqualifications of jurors must be taken advantage of by challenge; and the fact that a disqualified juror is allowed to participate in the trial of a case is not cause for setting aside the verdict, especially in civil cases. Proff. Jury, § 172; Thomp. & M. Juries, § 302; Wassum v. Feeney, 121 Mass. 93; State v. Jackson, 27 Kan. 581; Croy v. State, 32 Ind. 384; State v. White, 68 N. C. 158; State v. Vogel, 22 Wis. 471; U. S. v. Gale, 109 U. S. 65, 3 Sup. Ct. Rep. 1; Green v. State, 59 Md. 123; Woodward v. Dean, 113 Mass. 297. The defendant must overcome by proof the presumption that the juror was competent. Hil. New Trials, § 3, c. 9; People v. Pease, 27 N. Y. 45, 63, 74; People v. Pease, 30 Barb. 588; Egbert v. Greenwalt, 38 Amer. Rep. 260; Hammond v. Noble, 57 Vt. 197. To satisfy the court that the juror was not a citizen, it is not sufficient to prove that he was born in Ireland, and was never naturalized. Proff. Jury, § 116. It must be proved that his father was not a citizen by birth. Rev. St. U. S. § 2172. Also, that his father never made application to be naturalized. Id. § 2168. See Wilmington v. Burlington, 4 Pick. 173; Braintree v. Hingham, 1 Pick. 247, note 3; Jackson v. Etz, 5 Cow. 320; Union v. Plainfield, 39 Conn. 563; Abb. Tr. Ev. p. 91, note 14; 1 Whart. Ev. § 208; Hammond v. Noble, 57 Vt. 193; Dupuy v. Wurtz, 53 N. Y. 556. TAFT, J. The defendant moved the court below to set aside the verdict upon the ground that Conner, one of the jurors, was an alien. If he was, the proof showing that that fact was unknown to the defendant and his counsel until after the trial, the motion should have been granted. Quinn v. Halbert, 52 Vt. 353. The counsel for the plaintiff have shown diligence in citing 39 authorities from other jurisdictions to show that the disqualification of the juror could only avail the defendant as a cause of challenge, evidently overlooking the cases in our own state, in which a contrary doctrine has been established. Briggs v. Georgia, 15 Vt. 61; Mann v. Fairlee, 44 Vt. 672; Quinn v. Halbert, supra. The competency of the juror will be presumed until the contrary is shown, and it is incumbent upon the defendant to show the alienage of the juror. Hammond v. Noble, 57 Vt. 193. He has shown the foreign birth of the juror, and his non-naturalization by any act of his own, and the non-naturalization of his father; and, if reputation in the family is legitimate evidence, the foreign birth of the latter. It is unnecessary to pass upon this latter question, as it is not requisite to a disposition of the We think that, irrespective of any fact (or presumption drawn there case. from) prior to the trial, that the fact shown by stipulation, that Conner was duly naturalized in 1886, subsequently to the trial, and became a citizen of the United States and of Vermont, is decisive upon the question of his alienage. Why should we not give full force and effect to the naturalization proceedings, and all presumptions naturally arising therefrom? The person was foreign by birth; had never, by any act of his own, been made a citizen. He went into court, and, by due process of law, was naturalized. Is not prior alienage a logical inference from the fact of naturalization, and especially so in this case, because it is stipulated that by his naturalization he became a citizen of the United States and of Vermont. This, by implication, is saying that he was not before a citizen. Nothing being shown to the contrary, does not the presumption arise that prior to the proceedings he was an alien? We think if any claim is made by the plaintiff that Conner was a citizen prior thereto, that the proceedings were sham, mere form, and of no effect; the burden was upon him to show such facts. We think the presumption arising from the naturalization proceedings is that prior thereto Conner was an alien. Judgment reversed, motion granted, verdict set aside, new trial granted, and cause remanded. (64 N. H. 503) GOVE v. GovE. . (Supreme Court of New Hampshire. Rockingham. July 19, 1888., EXECUTOR-POWERS-ASSIGNMENT OF NOTE AND MORTGAGE IN ANOTHER STATE. An executor, having by virtue of his appointment in another state obtained the title to a negotiable note secured by mortgage on land in New Hampshire, may give a valid title to the same by assignment, and the assignee may maintain an action in his own name on the note and mortgage in that state.' Writ of entry to foreclose a mortgage of land in Seabrook. Facts found by the court. By the last will of Daniel Ingalls the note and mortgage in suit were given to the plaintiff. That will was proved and allowed in Essex county, Mass., and Nathaniel Ingalls appointed executor. After his appointment, February 3, 1882, Nathaniel Ingalls, by writing under his hand and seal, assigned and delivered the note and mortgage to the plaintiff. No copy of the will and probate thereof was filed in the probate office of Rockingham county. The court ordered conditional judgment for the amount due on the mortgage, and the defendant excepted. Marston & Eastman, for plaintiff. T. Leavitt, for defendant. CLARK, J. The question is as to the plaintiff's title to the note and mortgage as against the defendant. There are no rights of creditors or outside parties intervening. In Luce v. Railroad Co., 63 N. H. 589, 3 Atl. Rep. 618, we held that in the absence of ancillary administration or statutory prohibition, the domiciliary administrator appointed in another state has authority to sell and assign stock of the decedent in a corporation in this state, and the corporation may voluntarily consent to its transfer by accepting the outstanding certificate, and issuing a new one to the purchaser. It is there said that while the power of an administrator or executor is limited to the state of his appointment, his inability to sue or defend in his representative capacity in a foreign jurisdiction is due, not to a want of title to the assets of his decedent, but to his personal incapacity to enforce it. According to the authorities there cited, the domiciliary administrator or executor, in the absence of ancillary administration or statutory prohibition, has authority to take possession of and remove the goods or effects of the decedent in another jurisdiction, or to collect a debt due from a debtor residing therein, if voluntarily given up or paid, and give a good acquittance and discharge therefor. Luce v. Railroad Co., 1 See note at end of case. 63 N. H. 590, 3 Atl. Rep. 618. Upon the doctrine of Luce v. Railroad Co., a voluntary payment of the mortgage note to the administrator of Lydia Ingalls or to the executor of Daniel Ingalls would have constituted a valid discharge of the debt, and a voluntary payment of the debt to the plaintiff would discharge the mortgage. If the executor of Daniel Ingalls could discharge the debt by receiving payment, he could release and discharge the claim of the estate by an assignment or transfer of the note; and, having authority to bind the estate, he could give a valid title to the note to the plaintiff. The executor could pass the title by indorsement and delivery in Massachusetts, although he could not enforce payment by suit as executor outside of Massachusetts; and, the plaintiff's title to the note and mortgage being complete under the will of Daniel Ingalls and the indorsement and delivery by the executor, and the note being negotiable, the plaintiff's action can be maintained. "If an executor in one state assigns a debt due from a person residing in another state, by whose laws an assignee may sue in his own name, such assignment makes a complete title, and it is not necessary to take letters of administration in the latter state, to enable the assignee to sue in his own name. Harper v. Butler, 2 Pet. 239. See, also, Rand v. Hubbard, 4 Metc. 252, 258, 259. "The administrator, by virtue of his appointment and authority as such, obtains the title to promissory notes or other written evidences of debt held by the intestate at the time of his death, and coming to the possession of the administrator, and may sell, transfer, and indorse the same; and the purchasers or indorsees may maintain actions in their own names against the debtors in another state, if the notes are negotiable promissory notes, or if the law of the state in which the action is brought permits the assignee of a chose in action to sue in his own name. GRAY, J., Wilkins v. Ellett, 108 U. S. 256, 259, 2 Sup. Ct. Rep. 641. The plaintiff, being the owner of the note and mortgage, is under no disability to sue in his own name. Thompson v. Wilson, 2 N. H. 291, and Taylor v. Barron, 35 N. H. 485, so far as they are in conflict with this result, are overruled by Luce v. Railroad Co. Exceptions overruled. ALLEN, J., did not sit. The others concurred. NOTE. * * * EXECUTORS, AND ADMINISTRATORS-ASSETS IN FOREIGN STATE-ASSIGNMENT-RIGHT TO SUE. In Campbell v. Brown, (Iowa,) 20 N. W. Rep. 745, the court says: "The title to promissory notes belonging to an estate vests in the executor, and he can assign the note so as to vest the title in his assignee, so as to enable the latter, as such owner, to maintain an action thereon against the maker in the courts of any state in which the latter resides." Under the statutes of Michigan, a foreign administrator can make no valid assignment of a mortgage on lands in that state. Reynolds v. McMullen, 22 N. W. Rep. 41. But under the Wisconsin statutes, a foreign administrator may execute a power of sale in a mortgage on land in that state, belonging to his decedent's estate. Hayes v. Frey, 11 N. W. Rep. 695. It is held in Kansas, however, that where one, being domiciled in Illinois, dies intestate in Colorado, having in his possession at the time of his death notes secured by mortgages on lands in Kansas, and his widow takes out letters of administration in Colorado, but not in Kansas, the title to the notes and mortgages does not vest in her so as to enable her to bring an action on them in the latter state, when letters of administration have been taken out by another person in the state of the intestate's domicile. Moore v. Jordan, 13 Pac. Rep. 337. But McCRARY, C. J., rules in the case of Eells v. Holder, 12 Fed. Rep. 668, that although, in the absence of a statutory provision, an administrator cannot sue outside of the state in which he is commissioned, yet notes owned by deceased at the time of his death, he being at the time a resident of Ohio, which notes are secured by mortgages on lands in Kansas, are assets in the hands of the domiciliary administrator, and that he may sue thereon, under the Kansas act of 1879. 244. A foreign executor may maintain an action in his own name upon a note payable to bearer, part of the assets of the estate, in Michigan. Knapp v. Lee, 3 N. W Rep. A foreign executor, invested by the testator's will with title to land in Kentucky, may maintain ejectment therefor. Chapman v. Headley's Ex'r, 4 S. W. Rep. 189. Though there be a domestic administrator with the will annexed, a foreign administrator duly qualified at the testator's domicile may bring suit in Georgia for any |