The opinion of the court was delivered by
Redeield, Ch. J.
These two actions were referred' by rule of court, to be decided according to law. It is said in Davis v. *144Campbell, 23 Vt. 236" court="Vt." date_filed="1851-01-15" href="https://app.midpage.ai/document/davis-v-campbell-6574495?utm_source=webapp" opinion_id="6574495">23 Vt. 236, that this limitation, in the rule of reference, upon the power of the referee, is to be referred to the merits of the case, rather than the form of the issue. And in Eddy v. Sprague, 10 Vt. 216" court="Vt." date_filed="1838-01-15" href="https://app.midpage.ai/document/eddy-v-sprague-6572015?utm_source=webapp" opinion_id="6572015">10 Vt. 216, it is considered, that when a case is referred, the referee may decide the case upon its merits upon any state of the evidence, which could be admitted by any amendment in the power of the court to grant. The same rule has been repeatedly recognized in other cases, by this court. We have not therefore on this point had occasion to go farther. But the case of Maxfield v. Scott, 17 Vt. 634" court="Vt." date_filed="1845-01-15" href="https://app.midpage.ai/document/maxfield-v-scott-6573245?utm_source=webapp" opinion_id="6573245">17 Vt. 634, seems to go the length of saying it is the subject matter of the suit referred, without reference to form, and that seems sensible and sound. It is by no means certain that the rule cannot safely go that length. I cannot comprehend, why the reference should fail, even where it appears on trial that the party has mistaken his form of action. It is perfectly within the power of the court to allow an amendment changing the form of action, if the declaration still describes the same cause of action. This is every day’s practice in the English courts, when it is desired. In this state, be sure, we have not commonly allowed such amendments, perhaps, on account of our attachment law, and the liability of special bail. And in many other particulars of civil procedure we are almost half a century behind the courts in Westminster Hall. I am sorry always to turn a party out of court, after his case is tried, and especially by a referee agreed to by the parties, and he is shown to have a just cause of action, upon the merest shadow of a form that either is already, or is speedily destined to be exploded. And especially where repeated decisions, at common-law can be found, disregarding it. And that it was competent for the county court to have allowed an amendment, in this case changing the form of action, will be seen by referring to 1 Chit. Pl. 197. Billings v. Flight, 6 Taunton 419. Leavitt v. Kebblewhite, 1 Taunt. 483, 459. Barnes’ Notes 5. 1 Petersdorff 524. But this is done under a rule to exonerate bail. This alone disposes of the case.
But if the case of Lewis v. Lyman, 22 Pick. 437 is sound law, and I confess myself disposed to so view it, I think there is no difficulty in holding, that the action of replevin will lie in this case. That contract was almost identical with the present. One would almost believe this contract was copied from that report, its cor*145responderme is so remarkable. And the referees have found in this case and there is every reason'to suppose'the finding according to the equity and justice of the case and the expectation of the parties, that there was an implied understanding that these yearlings should be kept upon the farm till the expiration of the term. Thus by the contract virtually, Taggarts title to one-half the property, as an independent and absolute tenant in common, would not become perfected until they had fulfilled their contract. This being so, any attempt to dispose of them would be such a wrong as would determine the tenancy. It has been held, in regard to real estate, that repudiating the tenancy, by the tenant, and denying the title of the landlord worked a forfeiture of the term, and would enable the landlord, to maintain ejectment, at once. This is familiar law in England, and is laid down in all the elementary books upon the subject. And it would be hard if it were not so here, since we have adopted the rule in this State, that after such repudiation is made known to the landlord, the statute of limitation begins to run against him, which is equivalent to saying ejectment will lie in his favor.
And it is only applying the same principle to personal property when we hold that one having a special property in chattels, forfeits his interest, by putting them to a different use from what the contract allows. Swift v. Mosely, 10 Vt. 208. And here, upon the contract, and the authority of the case in 22 Pick, it seems to us, that the plaintiff may justly be regarded as having the paramount title, as the general owner of this stock, and the Taggarts as owning oneffialf conditionally, i. e., when the term expired, if they performed their contract. This construction is consistent with the written contract and the finding of the referees, and is the only one which seems to reach the justice of the case, and is far more in accordance with sound policy, and the just rights of the parties, and the real interests of tenants, than any other. And in this view the plaintiff might well maintain replevin, both in the eepit and detinet. We are therefore disposed to affirm the judgment upon both grounds.
As these cattle are the offspring of cattle belonging to plaintiff, no difficulty arises in regard to his property, on account of the thing not being in existence at the time of the contract, as was held in Smith v. Atkins, 18 Vt. 461" court="Vt." date_filed="1846-03-15" href="https://app.midpage.ai/document/smith-v-atkins-6573446?utm_source=webapp" opinion_id="6573446">18 Vt. 461.
*146The case of Hurd v. Darling, 14 Vt. is in many of its features like this case, but not more so than Smith v. Atkins, 18 Vt., and in this case there was no written contract between these parties; one was-referred to only, between other parties, and that was departed from by parol, thus leaving the whole matter open, and the referees have found this contract to have been, in its intention, like that of Smith v. Atkins, i. e., that the property should remain on the place till the end of the term and be then divided, which we consider as giving the tenants no absolute vested property till that time.
Judgment affirmed.