Volume 69 — Vermont Reports

Action on the case for negligence. Plea, the general issue. Trial by jury at the April Term, 1893, Chittenden County, Tyler, J., presiding. The plaintiff is seeking to recover for negligence of a co-employee on the ground that the latter sustained to the defendant the relation of vice-principal. The plaintiff was fourteen and one-half years old and had been employed in the room where he was injured for two years around and near the shafts.

E. Briggs as cashier of the plaintiff. Adjudged, pro forma, upon an agreed statement of facts, at the March Term, 1894, Rutland County, Munson, J., presiding, that the action might be maintained. February 3, 1883, F. E. Briggs was elected by the directors cashier of said bank for the year ensuing. March 5,1883, the bond in question was executed.

Generar Assumpsit. Pleas, tbe general issue, payment and notice of special matter. Trial by court at the June Term, 1895, Addison County, Ross, C. J., presiding. There was nothing to prevent the plaintiffs’ sending the check directly, as the law requires; in which case it would have been paid. They chose to send it circuitously, through three intermediate banks, at a loss of three or more days, one at least of which was vital.

Information for assault with intent to ravish. Plea, not guilty. Trial by jury at the April Term,- 1895, Franklin County. Tyler, J.,-presiding. The cláim of the prosecution was that the respondent committed the assault upon a girl of eight years in a shed. The State’s Attorney testified that the respondent, while in jail admitted to him that he was with the girl in the shed. The respondent upon the stand denied that he was in the shed and denied that he made the admission.

Trial by court at the March Term, 1895, Chittenden County, Ross, C. J., presiding. Judgment that the appellant, by the clause of the will in question, took the use of the entire property. Parol evidence was introduced from which the court found the facts recited in the opinion.

Reargument. The foregoing decision was announced at. the May Term, 1895; whereupon the appellant filed a motion for a rehearing, stating as grounds thereof that the judgment of the court below was based upon the finding of that court that the testator in fact intended the devise to include the entire property, and that such finding and judgment are conclusive, whereas the court in its opinion has wholly overlooked this question.

Replevin. Plea, not guilty. Trial by court at the September Term, 1895, Rutland County, Ross, C. J., presiding. The court found the following facts. The plaintiff being on May 3, 1893, the owner of a farm in Walling-ford, and personal property thereon, including the mare replevied in this action, conveyed the farm and personal property to his son, Joseph E. Shum, by warranty deed with a condition for the support of the plaintiff and his wife.

Action on the case, under R. L. 2138 and 2139, for damages to wife and next of kin resulting from the death of the plaintiff’s intestate from an injury alleged to have been received through an insufficiency in the defendant’s highway. Plea, the general issue. Trial by jury at the April Term, 1895, Franklin County, Tyler, J., presiding. The absence of a record of the highway should have been shown, if at all, by the town clerk.

Action for penalty under R. L. 3132 (V. S. 3513). Plea, not guilty. Trial by jury at the March Term, 1895, Washington County, Start, J., presiding. Verdict, one dollar. The action was commenced before a justice of the peace and came to the County Court on appeal by the plaintiff. The plaintiff, having recovered only nominal damages can recover only five dollars of costs. R. L. 1444 and 1445 (,Y. S. 1686 and 1687) Engrem v. Myers, 54 Yt. 628.

Ejectment. Plea, the general issue. Trial by jury at the-December Term, 1895, Windsor County, Rowell, J., presiding.

Trover and Case for the sale by the defendant, as tax collector, of the plaintiff’s bank stock to satisfy taxes alleged to be illegal. Trial by jury at the March Term, 1895, Rutland County, Thompson, J., presiding.

Complaint for violation of the statute against truancy. At the February Term, 1896, Orleans County, Thompson, J., presiding, the cause was first heard on demurrer to the complaint. Demurrer overruled; complaint adjudged sufficient; exceptions by respondent; exceptions ordered to lie. Thereupon, at the same term, the respondent pleaded not guilty. Trial by jury.

Debt on a written award. Plea, the general issue. Trial by jury at the March Term, Washington County, 1896, Ross, C. J., presiding. At the close of the testimony the court directed a verdict for the plaintiff for the amount of the award with interest and costs. The two arbitrators were mot authorized to appoint a third until they had failed in an honest effort to agree.

. ■ Assumpsit in the common counts. Pleas, the general issue, payment and offset. Trial by jury at the June Term, 1896, Bennington County, Start, J., presiding. The plaintiff sought to recover one thousand dollars and interest which she claimed the defendant had collected for her and failed to pay her on request. The verdict was for the full amount.

Replevin. Plea, not guilty and notice of justification. Heard on general and special demurrer to the plea and notice, at the March Term, 1896, ■ Washington County, Start, J., presiding. (1) The notice is insufficient because it says that the defendant “took said goods, if at all” etc. which is neither an avowry nor an admission of the taking. It is the general issue, not a justification. (2) The notice is insufficient because it does not show a return of the warrant.

Complaint for breach of the peace, before the City Court of Barre. Heard upon general demurrer, April 30, 1895. Demurrer overruled. It is not sufficient to charge the offense in the language of the statute. The complaint must name the persons upon or against whom the acts were committed or threatened. State v. Matthews, 42 Vt. 542; State v. Hanley, 47 Yt. 290; State v. Coffin, 64 Vt. 25. The complaint is sufficient.

<p>Action on the case for negligence. Plea, tbe general issue. Trial by jury at tbe March Term, 1896, Rutland County, Taft, J., presiding.</p> <p>Tbe plaintiff, a child of six years, was riding with an aged man, Mr. Higgins, and bis wife, over a crossing of the defendant railroad when the carriage was run into by tbe defendant’s train, tbe man and woman instantly killed and tbe plaintiff thrown out and injured. Tbe other-material facts appear in the opinion.</p> <p>A verdict should have been directed. If Mr. Higgins looked be must have seen tbe train before be or it reached the crossing. If he did not look he was chargeable with negligence as matter of law. Chicago, etc., R. Co. y. Houston, 95 U. S. 697; Magoon y. B. & M. R. Co., 67 Yt. 177; Beisergel v. R. Co., 40 N.Y. 9; Pence v. Chicago, etc., R. Co., 19 Am. & Eng. R. Cas., 366; U. P. R. Co. y. Adams, 19 Am. & Eng. R. Cas. 376; Matti y. Chicago & TV. Mich..R. Co., 32 Am. & Eng. R. cas. 71; Haas Admr. y. Grand Rapids & Ind. R. Co., 47 Mich. 401; Penn. R. Co. y. Beale, 73 Pa. St. 504.</p> <p>The evidence did not warrant the submission to the jury of the question of the defendant’s negligence. As to the sounding of the whistle, no statutory regulation was alleged or proved. Vandewater v. N. Y. & N. E. R. Co., 135 N. Y. 583. Some of the plaintiff s Qwn witnesses testified that the signals were duly given.</p> <p>It was Mr. Higgins’ duty to stop as well as look and listen. Zimmerman v. Hannibal St. J. R. Co., 2 Am. & Eng. R. Cas. 191; Reading & Columbia R. Co. v. Ritchie, 102 Pa. 425; Penn. R. Co. v. Beale, supra-, N. Y, Phil. & Norfolk R. Co. y. Kellam's Admr., 32 Am. & Eng. R. Cas. 114; Terre Haute R. Co. v. Clark, 6 Am. & Eng. R. Cas. 88; Wilds v. Hud. Riv. R. Co., 29 N. Y. 314; Donohue v. St. L. I. M. & S. R. Co., 28 Am. & Eng. R. Cas. 673; Stepp v. Chicago, etc., R. Co., 85 Mo. 229.</p> <p>There was no averment of negligence in respect to signal-ling or speed; hence testimony on those subjects should have been excluded. Spaulding v. Warner, 57 Yt. 654.</p> <p>So too it was error to admit evidence of injuries not described in the declaration. Thompson v. Nat. Express Co., 66 Yt. 359.</p> <p>The court erred in permitting the impeachment of the witness Dibble. Fairchild v. Bascomb, 35 Yt. 417.</p> <p>There was a conflict of testimony, which made a question for the jury. Barber v. Essex, 27 Yt. 62.</p> <p>The law did not require Higgins to stop. Davis v. N. Y. C. & H. R. R. Co., 47 N. Y. 400.</p>

<p>Indictment in two counts under Y. S. 5128 and 5130 respectively, to which the respondent demurred. At the June Term, 1896, Caledonia County, Ross, C. J., presiding, there was a pro forma judgment overruling the demurrer and holding the indictment sufficient.</p> <p>The indictment, omitting the formal introduction, was as follows: That, William H. McMillan of St. Johnsbury in the County of Caledonia, on the first day of June, A. D. 1896, and at divers other times and days both before and since said first day of June, at St. Johnsbury in the County of Caledonia aforesaid, did keep and cause to be kept, and did aid, abet and assist divers other persons to keep and cause to be kept, a bucket-shop, to wit: an office, in which said bucket-shop, to wit: said office, was then and there ■conducted and permitted the pretended buying and selling of stocks and bonds of divers corporations and the pretended buying and selling of petroleum, cotton, grain, provisions, pork and other produce, on margins and otherwise, there being then and there no intention of receiving and paying for such stocks and bonds and such petroleum, cotton, grain, provisions, pork and other produce, so bought by divers persons to your Grand Jurors unknown, and with then and there no intention of delivering such stocks and bonds and such petroleum, cotton, grain, provisions, pork and other produce, so sold by divers other persons to your Grand Jurors unknown; and * * .* * did then and there keep and cause to be kept and did then and there aid, abet and assist divers other persons to your Grand Jurors unknown to keep and cause to be kept, a bucket-shop, to wit: an office, in which bucket-shop, to wit: said office, was then and there conducted and permitted the pretended buying and selling of such stocks and bonds of divers corporations and the pretended buying and selling of such petroleum, cotton, grain, provisions, pork and other produce, on margins; and * * * * did then and there keep and cause to be kept, and did then and there aid, abet and assist divers other persons, to your Grand Jurors unknown, in keeping and causing to be kept, a bucket-shop, to wit: an office, in which said bucket shop, to wit; said office was then and there conducted and permitted the pretended buying and selling of such stocks and bonds of. divers corporations and the pretended buying and selling of such petroleum, cotton, grain, provisions, pork and other produce, that is to say that he, the. said William H. McMillan, did then and there keep and cause to be kept and did aid, abet and assist divers other persons to your Grand Jurors unknown, in keeping and causing to be kept, such bucket-shop, to wit: such office, in which bucket-shop, to wit: such office was then and there conducted and permitted the buying and' selling of such stocks and bonds and such petroleum, cotton, grain, provisions, pork and other produce, when the party buying such stocks and bonds and such petroleum, cotton, grain, provisions and other produce then and there did not intend actually to receive the same if purchased and where the party selling such stocks and bonds and such petroleum, cotton, grain, provisions, pork and other produce then and there did not actually intend to deliver the same if sold, contrary, etc.</p> <p>And the Grand Jurors aforesaid, etc., that the said William H. McMillan, on, etc., and at divers other times at, etc., did communicate, receive, exhibit and display offers by divers persons, to your Grand Jurors unknown, to buy and sell stocks and bonds of corporations and petroleum, cotton, grain, provisions, pork and other produce, on margins, without the intention of receiving and paying for such property so offered to be bought, or of delivering such property so offered to be sold; and did then and there communicate, receive, exhibit and display statements and quotations of the prices of such stocks and bonds and such petroleum, cotton, grain, provisions and other produce, with a view to such pretended purchase and sale as aforesaid, contrary, etc.</p> <p>The crime consists not in keeping the shop but in conducting or permitting the prohibited business therein. The keeping must be accompanied with certain prohibited acts. The statute must describe and the pleader must set forth such illegal transactions “with reasonable particularity of time, place, and circumstances.” State v. Day, 3 Yt. 138; State;v. Benjamin, 49 Yt. 101; State v. Higgins, 53 Yt. 191; State v. Clancy, 56 Yt. 698; State v. McCone, 59 Vt. 117; I Arch. Cr. Pr. 285 and note; II Hawk. P. C. c. 25, § 57.</p> <p>The indictment is silent as to who had the unlawful intention. Com. v. Dean, 110 Mass. 64. . •</p> <p>The second count is framed upon Y. S.. 5130. But that section has no force independently of 5128. It refers to the same transactions and the count thereon is bad for the same want of particularity which makes the first count defective. I Bish. Cr. Pro., (led.) 547, 548; Shannon v. People, 5 Mich. 71; State v. Ricker, 29 Me. 84.</p> <p>The first count charges the offense in the language of the statute, which is sufficient. Fortenbury v. State, 47 Ark. 188; State v. Casey, 45 Me. 435.</p> <p>A pretended buying and selling implies a lack of intention to receive and pay for the subject of the sale. State v. Campbell, 29 Tex. 44: 94 Am. Dec. 251.</p> <p>It is unnecessary to allege the names of the persons with whom the pretended buying and selling is conducted. Clark’s Crim. Proc. 161; Bish. St. Cr. §§ 892, 894, 895.</p> <p>The second count also alleges an offense in the language of the statute. The place where the acts prohibited in this section are performed is immaterial.</p>

<p>Assumdsit in tbe common counts. Plea, tbe general issue. Trial by jury at tbe September Term, 1895, Washington County, Thompson, J., presiding.</p> <p>Tbe plaintiff claimed to recover upon tbe written contract recited in the opinion and introduced tbe same in evidence. The defendant excepted to its admission on tbe ground that tbe plaintiff could not recover tbereon under tbe common counts.</p> <p>Tbe plaintiff offered in evidence two notes purporting to be signed by tbe testator, payable to the plaintiff, or bearer, and offered oral evidence to identify them as the notes mentioned in the contract and to prove that they had been kept alive as against tbe statute of limitations. Tbe court excluded tbe notes on tbe ground that tbe statute of frauds required tbe memorandum to be complete and that oral evidence was not admissible to identify tbe notes. To the exclusion tbe plaintiff excepted.</p> <p>Tbe plaintiff’s evidence tended to prove that all tbe conditions of the written contract bad been fulfilled. No question was made but that one-balf of tbe account referred to in tbe writing amounted to $29.40, and tbe court directed a verdict for tbe plaintiff for that amount. Tbe defendant excepted thereto on the ground that recovery could not be bad under the common counts. Tbe plaintiff did not ask to go to the jury on any question and took no exception to the action of the court in directing a verdict.</p> <p>The terms of the special contract having been performed, leaving nothing to be done but the mere payment of money,a recovery under the common counts was permissible. Bradley v. Phillips, 52 Yt. 517; Kent v. Bowker, 38 Yt. 148; Perry v. Smith, 22 Yt. 301; Mattocks v. Lyman, 16 Vt. 118; Wilkins v. Stevens, 8 Yt. 214; Way v. Wakefield, 7 Yt. 223; Bank of Columbia v. Patterson's Admr., 7 Cranch 299.</p> <p>The promise was not within the statute of frauds. It was made upon a new consideration and was not in any sense collateral to the promise of the original debtor. Bailey v. Bailey, 56 Yt. 398; Williams Little, 35 Yt. 323; Templetons v. Bascom, 33 Yt. 135; Cross v. Richardson, 30 Vt. 647; Lampson v. Hobart's Est., 28 Yt. 700.</p> <p>But if the promise was collateral, oral evidence was admissible to identify the notes.</p> <p>The plaintiff could not recover under the common counts. He has not released his claim against the original promisor and the defendant is merely a surety or guarantor. The consideration for the defendant’s promise was that the plaintiff should withdraw his opposition to the will, not that he should forbear enforcing his claim against the estate. Arbuckle v. Templeton, 65 Yt. 205.</p> <p>Hence the contract is within the statute of frauds. Fullam v. Adams, 37 Yt. 394.</p> <p>The memorandum was insufficient because it required oral evidence to supply its terms. Ide v. Stanton, 15 Yt. 685.</p> <p>The plaintiff lost his right to claim a recovery for the amount of the notes by failing to except to the action of the court in directing a verdict for the amount of the account only. The defendant, indeed, excepted to that action but is willing to let the verdict stand as it is. Stock Quo. Tel. Co. v. Board of Trade, 144 111. 370; Curtis v. Wheeler & Wilson Co., 141 N. Y. 511.</p>

<p>1Insurance Policy— Written and Printed Portions — Title of Insured — When Neither Party Requests Submission to Jury — Fact Material to Risk.</p> <p>A policy of fire insurance upon a building provided that the policy should be void if the land whereon the building stood was not owned in fee simple by the parties insured. Held, enough that the combined interests of the insured amounted to such a title.</p> <p>A policy of fire insurance provided in its written portion that the building insured should be occupied as a paint-shop; but provided in its printed portion that the use of benzine upon the premises should render the policy void. The building was consumed by a fire caused by the use of benzine therein, yet an action was maintained upon the policy, it being proved that benzine was necessarily used in the occupation of the building as a paint-shop.</p> <p>As neither party desired to go to the jury it was for the court to direct á verdict on such a state of facts as it considered proved; and the verdict will be upheld if there was any evidence to sustain it.</p> <p>The insurance being for nine hundred and sixty dollars and the property worth two thousand five hundred dollars, it could not be said as matter of law that the existence of a mortgage for two hundred dollars was a fact material to the risk. .. ■</p> <p>It was for the jury to say whether under the circumstances the failure to disclose the existence of the mortgágé was a concealment of a material matter, under a claiise which provided that if the insured had concealed any material fact concerning the insurance the entire policy should be void.</p>

Heard at the June Term, 1896, Addison County, Rowell, J., presiding, on motion of the appellant that the petitioner be ordered to furnish security for costs which motion was granted as matter of right, and on demurrer to the appellant’s plea, which was overruled and the plea adjudged sufficient, and upon the appellant’s motion for a trial by jury which was granted as a matter of right. All said rulings were pro forma. The case is stated in the opinion.

Bill in Chancery. Heard on master’s report and exceptions thereto at the December Term, 1895, Caledonia County. . Ross, Chancellor, overruled the exceptions and decreed that the defendant be perpetually enjoined from all use of the disputed land except for highway purposes as one of the public. The evidence upon which the master found the facts recited in the opinion respecting the defendant’s equitable title was received against the objection and exception of the orators.

Assumpsit in the common counts and a special count upon the promissory note herein copied. The defendant pleaded a special plea in bar, given below, to which the plaintiff demurred generally. Heard on demurrer at the June Term, 1896, Bennington County, Start J., presiding. Demurrer sustained and plea adjudged insufficient. The note reads as follows: “$500. Camden, N. Y., Oct. 27, 1893.

General Assumpsit. Plea, the general issue. Trial by court at the May Term, 1896, Windsor County, Tyler, J., presiding. The action was brought to recover the funds in the hands of the defendant when the act of 1892 abolishing the former school districts went into operation.

General Assumpsit. Heard on an agreed statement, in lieu of a disclosure, at the June Term, 1896, Addison County, Rowell, J., presiding.

General Assumpsit. Plea, the general issue. Trial by-jury at the March Term, 1895, Washington County, Start, J., presiding. The action was for the price of a pair of oxen. The oxen, while alive, were sold, by description, through Howard P. Martin as the plaintiffs’ agent, to be dressed and delivered at the defendant’s market in Barre at seven cents per pound.

General and Special Assumpsit. Plea, the general issue. Trial by court in the City Court of Burlington, October 3, 1896. This is a written contract. Benj. Contr. 10, 11; Daggett v. Johnson, 49 Vt. 345. The admission of parol evidence to prove an additional contemporaneous agreement by the agent was a plain violation of the settled rule.

Bill in Chancery. Heard on a master’s report at the September Term, 1896, Orleans County, before Ross, Chan- cellor, who decreed for the orators. The circumstances appear in the opinion. This court has no jurisdiction. No appeal was taken in the manner provided by the statute. This appeal was not taken at the term. V. S. 981; Gove v. Dyke, 14 Vt. 561. The terms ends with the adjournment of the county court. The chancellor is not the court of chancery.

Covenant Broken. Plea, the general issue with notice of special matter in defense and a tender. Trial by jury at the September Term, 1895, Washington County, Thompson, J., presiding. At the close of the testimony the court submitted special inquiries to the jury but directed a general verdict for the defendants.

Trespass for assault and battery. Plea, the general issue. Trial by jury at the June Term, 1896, Caledonia County, Ross, C. J., presiding. The plaintiff’s evidence tended to show that on the 24th day of February, 1895, while he was lying upon a lounge at his boarding-place, the defendant, in a state of intoxication, struck him in the abdomen inflicting an injury which resulted in hernia; that he had suffered a general loss of health and had been unable to work.

General Assumpsit. Heard upon tbe report of a commissioner at the March term, 1896, Rutland County, Taft, J., presiding. The contract was between the trustee and the defendants, the work was performed by the defendants and the pay was due to them. There was no notice of any assignment. Frank D. White and Henry L. Clark for the claimant. While the contract was taken in the name of the defendants they were really agents, of the claimant by whom the work was entirely performed.

Assumpsit on a promissory note. Pleas, tbe general issue and statute of limitations. Replication to the plea of the statute, absence from and residence out of the State with no known attachable property therein. Rejoinder, traverse. Trial by jury, December Term, 1895, Windsor County, Rowell, J., presiding. The only question was whether the action was barred by the statute of limitations.

Audita Querela to set aside an execution issued on a judgment of the Supreme Court for Windham County. The facts are stated in the opinion. No express judgment for costs was rendered in either the county or supreme court. Hence, the question is, whether costs are incident to such a judgment as was rendered. Even though costs in the supreme court were recoverable, yet the petition is well grounded since the execution covers the costs in both courts. Replevin sounds in damages.

General Assumpsit. Pleas, thé general issue, the statute of limitations and payment. Replication of special matter to the plea of the statute. Demurrer to the replication. Heard on demurrer at the March Term, 1896, Rutland > County, Taft, J., presiding. The only promise contained in the contract is tbe promise to pay on demand. The testator’s option to apply the proceeds of certain property in his hands in payment does not change the character of the promise.

Replevin. Plea, the general issue. Trial by jury at the March Term, 1896, Windham County, Mitnson, J., presiding. With respect to the secret trust, the court instructed the jury that if the plaintiff had the property sold upon his attachment under an arrangement with the debtor that the sale should be one in form only, while the debtor should retain the use and benefit of the property as before, the sale was void and conveyed no title to the plaintiff as purchaser.

General and Special Assumpsit. Plea, the general issue with notice and payment. Trial by jury at the March Term, 1896, Rutland County, Taft, J., presiding. At the close of the plaintiff’s testimony, the defendant rested and moved for, a verdict in his favor, which was directed and judgment rendered thereon, and the plaintiff excepted.

<p>Action to recover expense incurred in supporting a pauper. Trial by jury at the December Term, 1895, Addison County, Taft, J., presiding.</p> <p>The right of recovery must depend upon the proof of a three years’ residence in the defendant town subsequent to the pauper’s return to the State. His return should not be held to revive his old residence. This construction will promote the object of the law by limiting the field of enquiry.</p> <p>The case of Sandgate v. Rupert, 67 Yt. 258, if carried to its logical conclusion will defeat the plaintiff.</p> <p>The statute contemplates the right of redemption within sixty days and expenses incurred within that period are not recoverable.</p> <p>A residence in another state does not preclude a recovery from a town otherwise chargeable by reason of a prior three years’ residence. Georgia v. Grand Isle, 1 Yt. 464; Tun-bridge v. Norwich, 17 Vt. 493; Dover v. Wheeler, 51 Vt. 160, 167; St. Johnsbury v. Concord, 68 Vt. 481.</p> <p>The pauper might well acquire a residence in the defendant town after ceasing to receive support from Middlesex. He had a right to become self sustaining and thereby gain a new residence. Rupert v. Sandgate, 10 Vt. 278; Dorset v. Manchester, 3 Vt. 370; Stowe v. Brookfield, 26 Vt. 524; Poultney v. Sandgate, 35 Vt. 146; Cabot v. Washington, 41 Vt. 168.</p> <p>The pauper’s presumed residence in Middlesex, while being supported by that town, in Hancock, ceased when he became self supporting. Barnet v. Ray, 33 Vt. 205; Leicester v. Brandon, 65 Vt. 544; South Burlington v. Worcester, 67 Vt. 411.</p> <p>The statute requiring sixty days’ notice before the commencement of suit, was enacted to enable the defendant town to ascertain the facts, not to limit the plaintiff’s recovery.</p>

<p>Measure of Damages — Fraud in Sale of Policy — Evidence.</p> <p>In an action of tort against an insurance agent for inducing the plaintiff to take a policy by fraudulent misrepresentations concerning its provisions, the measure of damages is not the difference in value between the policy as it was and as it was represented to be, but the difference between the amount of premiums paid by the plaintiff and the value to him of the insurance while it remained in force.</p> <p>The plaintiff was properly allowed to show his own ignorance of insurance and the defendant’s familiarity therewith as tending to show that he was actually deceived by the defendant’s representations.</p> <p>It was competent for the plaintiff to show the amount of the commission which the defendant was entitled to receive, and that he was working for a prize offered by the company to the agent who should return the largest amount of insurance, — the defendant being a witness in his own behalf.</p> <p>The fact that the defendant, within three months before the interview in question, had taken a large number of applications for insurance was admissible as making it less probable that he would remember the . details as distinctly as the plaintiff.</p> <p>The defendant offered to show by a witness, who was a policy holder in the same company, that the plaintiff came to the witness with the agent of another insurance company and asked him whether he would throw up his policy if such agent would bring a suit for him to recover the premiums he had paid. Held, that the evidence was properly excluded. The defendant on the occasion in question used a book furnished by the company showing the amount of surplus on different classes of policies for one thousand dollars, from which the plaintiff claimed the defendant computed the amount of the surplus which would belong to the plaintiff’s policy. It being somewhat uncertain from what pages the defendant figured, held, that the plaintiff had a right to exhibit in evidence any page that related to such surplus.</p>

<p>Indictment for breach of the peace. Plea, not guilty. Trial by jury at the September Term, 1895, Washington County, Thompson, J., presiding.</p>

<p>Petition for a new trial. The petitioner was convicted of a breach of the peace at the September Term, 1895, Washington County. The grounds of the petition and the tendency of the new evidence are stated in the opinion.</p>

<p> Evidence. </p> <p>In an action for enticing away the plaintiff’s servant, an undated letter from the defendant to the servant, unsupported by direct testimony as to when it was written or received, was held to contain internal evidence that it was written while the contract of service was in force and unbroken, and to be in substance pertinent to the issue.</p> <p>There having been evidence that a course of persuasion had been entered upon, evidence of opportunity to persuade was admissible.</p>

General Assumpsit. Pleas, the general issue, accord and satisfaction and payment. Trial by jury at the December Term, 1895, Windsor County, Rowell, J., presiding. The action was brought to recover a balance claimed to be due from the defendant to the plaintiff’s intestate upon account.

Generar Assumpsit. The defendant filed two special pleas, to each of which the plaintiff demurred generally. Heard on demurrer at the June Term, 1896, Bennington County, Start, J., presiding. It must be considered that each firm carried on a separate and distinct business. The defendant invokes a principle which is not applicable to this case.

<p>Action on the Case for slander. The defendant filed a special plea to which the plaintiff demurred generally. Heard on demurrer at the September Term, 1896, Rutland County, Rowell, J., presiding. Pro forma judgment overruling the demurrer and adjudging the plea sufficient.</p> <p>The declaration alleges that the slanderous words were spoken concerning the plaintiff in his office of Justice of the Peace with the meaning that the plaintiff had received the money, liquor and gloves with the corrupt understanding that he should favor the defendant in prosecutions before the plaintiff for violation of the law against liquor selling. The plea admits the speaking of the words in the sense charged, but attempts to justify their use by alleging that they were spoken without malice and with a belief in their truth by way of answer to one who inquired of the defendant concerning the plaintiff’s fitness to hold the said office, the plaintiff then being a candidate for appointment thereto. The words charged are recited in the opinion.</p> <p>The defendant was bound either to deny the speaking of the words or to allege their truth. He has done neither. The fact that the plaintiff was a candidate for public office would have justified criticism but did not justify a distinct charge of crime. The defendant was bound to know whether the charge was true. This distinction is made clear by a long line of cases showing the growth of the law. Clarges v. Rowe, 3 Lev. 30; How v. Prm, 7 Mod. 107; Harwood v. Astley, 4 Bos. & Pul. 47; Davis v. Shepstone, 11 App. Cas. 187; Com. v. Clap, 4 Mass. 163; Brewer v. Weakley, 2 Overt. 99; Seely v. Blatr, Wright 358; Mayrant v. Richardson, 1 Nott & McCord 347; Aldrich v. Printing Co. 9 Minn. 133; Lewis v. Few, 5 Johns. 1; Root v. King, 7 Cow. 613; King v. Root, 4 Wend. 113; Hamilton v. Eno, 81 N. Y. 116; Rowand v. DeCamp, 96 Pa. St. 493; Bailey v. Kalamazoo Pub. Co., 40 Mich. 254; Bronson v. Bruce, 59 Mich. 467; Curtis v. Mussey, 6 Gray 261; Burt v. Newspaper Co., 154 Mass. 238.</p> <p>It is admitted by the demurrer that the defendant spoke the words without malice, with good reason to believe, and with actual belief, in their truth. They were spoken concerning the plaintiffs fitness for a public office for which he was a candidate, and spoken by way of answer to an inquiry made by one whose support had been solicited by the plaintiff. The communication was, therefore, privileged. Odger, Libel, 198-212; Shurlleff v. Stevens, 51 Vt. 512; II Green. Ev. 421'; Carpenter v. Wtlley, 65 Vt. 176; Clemmons v. Danforth, 67 Vt. 617; Posnett v. Marble, 62 Vt. 488; Nott v. Stoddard, 38 Vt. 26.</p>

<p>Appeal from tbe Probate Court for tbe District of Fair Haven. Declaration, general assumpsit. Plea, the general issue. Trial by jury at the March Term, 1896, Rutland County, Taft, J., presiding.</p> <p>The declarations of the decedent, referred to in the opinion, were to the effect that he had sent for the plaintiff to come home and work on the farm for the reason that he could do better there than in the West where he had been.</p> <p>The plaintiff requested the court to instruct the jury that there was no evidence from which they could infer any expectation that the plaintiff should be paid for his services beyond the value of the board of himself and family. The court ruled that there was such evidence, and the defendant excepted.</p> <p>No legal principle is better established than this, that when a child, after attaining his majority, returns to live with his parents and becomes one of the family, a relation of debtor and creditor does not thereby arise, such as to warrant a claim for services rendered to such parents. Fitch v. Peckham, 16 Vt. 150; Andrus v. Foster, 17 Vt. 556 ; Cobb v. Bishop, 27 Vt. 624; Way v. Way, 27 Vt. 625; Davis v. Goodenow, 27 Vt. 715; Sprague v. Waldo, 38 Vt. 141; Harris v. Currier, 44 Vt. 468; Doane v. Doane, 46 Vt. 485; Ashley v. Hendee, 56 Vt. 209; Sawyer v. Hebard's Est., 58 Vt. 375.</p> <p>While it is not necessary to prove an express promise to pay, the evidence must establish a mutual expectation of payment as contrasted with compensation in some other way. This, in the case at bar, the evidence failed to do.</p> <p>But if the court did not err in submitting the case to the jury it certainly erred in not admitting the evidence of the defendant which tended to explain the circumstances under which the plaintiff returned to the father’s house.</p> <p>The testimony of Jennie Westcott should have been received. Her husband,- though residuary legatee, was not a party to the action. He was interested in the event of the litigation, but our statute has abolished disqualifications' for interest. This judgment could not be used for or against him in a subsequent case, which is the true test. Labaree v. Wood, 54 Yt. 452.</p> <p>The exclusion of testimony that the deceased sent his son money to enable him to return, was proper. There was no claim in offset.</p> <p>The wife of the residuary legatee, — the estate being solvent —was incompetent. Carpenter v. Moore, 43 Yt. 392; Wheeler si, Wheeler's Est., 47 Yt. 637; Labaree v. Wood, 54 Yt. 452; Banister v. Ovitt, 64 Vt. 580.</p> <p>There was evidence to support the plaintiff’s main claim. Freeman v. Freeman, 65 111. 106; Markey v. Brewster, 10 Hun, 16; Andrus v. Foster, 17 Yt. 556. The important fact is that the plaintiff returned to wort at the father’s request. Hart v. Hart's Admr., 41 Mo. 441; Koch v. Hebei, 32 Mo. App. 103; Green v. Roberts, 47 Barb. 521; Portlow v. Cooke, 2 R. I. 451; Adams v. Adams, 23 Ind. 50.</p>

<p>General Assumpsit. Plea the general issue. The defendant, Ira O. Ricker, being in insolvency, the case proceeded against B. M. Ricker alone. Trial by jury at the June Term, 1896, Caledonia County, Ross, C. J., presiding.</p> <p>With respect to the exception last mentioned in the opinion, the record shows that the plaintiffs offered to have the plaintiff Welch testify “that the ledger was the only book upon which the plaintiffs charged such goods as were not paid for.” The court permitted the plaintiffs to show how the books were kept, but ruled that the witness could not state that the ledger entry was the only charge, and excluded the offer; to which the plaintiffs excepted.</p>

Trover for a savings bank deposit book. Plea, not guilty. Trial by court at the March Term, 1895, Windham County, Rowell, J., presiding. The intestate died in 1880. Sometime before, she delivered the book in question to the defendant with directions to keep it and permit the deposit to remain until the plaintiff, a son of the intestate, was dead and then to divide the deposit among her other* children. The defendant accepted and has ever since held the book for that purpose.

Bill in Chancery, by creditors of Owen Owens, to set aside as fraudulent and void certain conveyances made by their debtor to the defendants. Heard by Taft, Chancellor, on report of a master at the March Term, 1896, Rutland County. The conveyances mentioned in the decree at the end of the opinion were adjudged fraudulent and void, and the defendants ordered to reconvey to the executors of Owen Owens for the benefit of his creditors.

Bile in Chancery. Heard on the report of a master at the March Term, 1896, Rutland County. Taft, Chancellor, decreed that the defendants should convey the Engrem premises to the oratrix unless they should elect to pay her the amount withdrawn from the savings bank by Charles E. Bourne, and that in the event of such election the Engrem mortgage should be revived and foreclosed for the enforcement of such payment. The facts are recited in the opinion.

Assumpsit in the common counts. Pleas, non assumpsit and several special defenses. Trial by court at the March Term, 1896, Washington County, Ross, C. J., presiding. Upon the facts found, which are substantially stated in the opinion, judgment was rendered for the defendant. The parol evidence was improperly admitted.

Justice Ejectment. Plea, the general issue. Trial by jury at the September Term, 1895, Chittenden County, Taft, J., presiding. Verdict ordered, and judgment thereon rendered, for the plaintiff. The acceptance of rent for March and April created the relation of landlord and tenant between the plaintiff and defendant on the terms of the original lease.

<p> Contract not to Extend Building. </p> <p>A contract between adjoining-lot owners tliat tlie front of a building upon one of such lots shall not be extended, is broken by an addition which, though incomplete, obstructs tlieview and makes the premises unsightly. The defendant having thus broken his contract could not avoid liability by declaring that he might yet remove instead of completing the structure, nor even by doing so after the action had been brought.</p>

Replevin for a mare. Plea, the general issue. Trial by jury at the March Term, 1896, Washington County, Ross, C. J., presiding. The plaintiff’s evidence tended to show that he exchanged horses with the defendant on the condition that the plaintiff might try the horse he received until nine o’clock the next morning and if she worked well on a milk cart the trade should be binding. The defendant’s evidence tended to show that the exchange was absolute.

Assumpsit. Heard on an agreed statement at the May-Term, 1896, Windsor County, Tyler, J., presiding. The commissioners made their report to the probate court August 15, 1892, finding a balance due to the defendant, for which judgment was there rendered in his favor. The other facts appear in the opinion.

Declaration, the common counts in assumpsit. Plea, the general issue. Trial by court at the March Term, 1896, Washington County, Ross, C. J., presiding. The plaintiff estate was represented by Henry M. Kimball, administrator, and the defendant estate by George Atkins, executor.

<p>Appeal from Probate. Heard at the June Term, 1896, Bennington County, Start, J., presiding.</p> <p>The will and decree, so far as material, are stated in the opinion.</p>

<p>Trustee Process. Heard upon the report of a commissioner at the March Term, 1896, Rutland County, Taft, J., presiding. Judgment that the claimant is entitled to the funds, with costs, and that the trustee be discharged with costs.</p> <p>The report disclosed the following facts. August 14, 1894, the defendant, in common with his mother, Elizabeth Davis, owned real estate which, on that date, they conveyed for the price of one thousand dollars; in which price the mother’s share was three hundred dollars. About September 27, 1894, the defendant received, as part payment from the purchaser, three hundred dollars which he used on that day in purchasing and taking to his wife, Clara M. Davis, an assignment of a real estate mortgage against the trustee. Two or three months later, Elizabeth Davis and Clara M. Davis made an oral agreement that the former’s interest in the real estate so conveyed by the defendant and herself should thereafter belong to Clara M. Davis in consideration of their mutual expectation that the mother would live more or less in the son’s family. The rest of the one thousand dollars was used by the defendant. The trustee was not notified of the assignment, nor was it ever recorded.</p>

Petition for Writ of Certiorari, to the supreme court for the County of Franklin. Heard at the January Term, 1897. The petitionee, by reason of his interest as creditor, was wholly without jurisdiction in the premises.

<p>Bill for Relief from fudgment Obtained by Perjury — Bill of Discovery.</p> <p>The acts for which a court of equity will, on account of fraud, set aside a judgment between the same parties, have relation to fraud extrinsic or collateral to the matter tried by the first court, and not to fraud in the matter on which the judgment was rendered.</p> <p>Hence a bill is demurrable which 'seeks to set aside a judgment between the same parties upon the allegation that it was based upon perjured testimony of the true nature of which the defendants were or ought to have been aware.</p> <p>The bill cannot be sustained as a bill of discovery, since the judgment is-conclusive against the orator that he has no interest in the matter respecting which discovery is sought.</p>

Slander. Heard on demurrer to the declaration at the June Term, 1896, Orange County, Munson, J., presiding. The first and second counts were adjudged insufficient, and the plaintiff excepted. The third count was adjudged sufficient and the demurrer was overruled as being to the whole declaration. The defendant excepted. The demurrer was general to all the counts by enumeration and special to the second and third. The declaration is sufficiently stated in the opinion.

<p>Intoxicating Liquor — Recovery for — Wine, Intoxicating — Purchase for Lawful Use — Original Packages.</p> <p>It is unlawful to sell intoxicating liquor in this State, except as provided by statute, although the purchaser intends to make, and does make, a lawful use of it.</p> <p>That wine is intoxicating is a matter of common knowledge and need not be proved.</p> <p>The defendant’s order having been taken in this State by the plaintiff's agent and by him transmitted to the plaintiff,in New York, where it was accepted, the contract was, in part, made in this State, and therefore unenforceable.</p> <p>The sale being thus unlawful was none the less so that the liquor came into this State in the original packages.</p>

Action on the Case for damages sustained from the insufficiency of a bridge. Plea, the general issue. Trial by jury at the March Term, 1896, Windham County, Start, J., presiding. At the close of the testimony the defendant moved for a verdict on the ground that there was no evidence tending to show that the plaintiff was in the exercise of due care. The motion was overruled and the defendant excepted.

Assumpsit. Heard upon tlie report of a referee and exceptions thereto at the September Term, 1896, Franklin County, Ross, C. J., presiding. The exceptions were overruled and judgment rendered for the plaintiff to recover the sum named as liquidated damages, with interest from the date of the writ.

Habeas Corpus to the Supreme Court for the County of Bennington. The mittimus' recited that the relator had been duly convicted of the crime of owning, keeping and possessing intoxicating liquor with intent to sell the same contrary to law.

<p>Petition to the Supreme Court to set aside its judgment of disbarment against the petitioner.</p>

Trespass and Trover. Plea, the general issue. Trial by court at the March Term, 1896, Washington County, Ross, C. J., presiding. Upon the facts found, which are sufficiently recited in the opinion, judgment was rendered for the defendant.

<p>Assumpsit for the price of lager beer. Plea, the general issue. Trial by jury at the March Term, 1896, Chittenden County, Rowell, J., presiding.</p> <p>The deposition of the plaintiffs manager was, in part, to the effect that he understood from the defendant that the lager was to be used by the latter only for legitimate purposes, in the manufacture of a light hop beer, and that the arrangement was that it should be shipped under the direction (L. W.) to save the defendant “the necessity of going into court and satisfying it that such lager was intended for a legal use.”</p> <p>Each order constituted a separate sale and the case is controlled by Backman v. Mussey, 31 Yt. 547.</p> <p>The contract was made partly within this State and is illegal. Y. S. 4464; Backman v. Wright, 27Yt. 187; lerntt v. Bartlett, 21 Yt. 184.</p> <p>The plaintiff having knowingly done something to shield the defendant from investigation by the authorities, cannot recover. Gaylord v. Soragen, 32 Vt. 110; Aiken v. Blaisdell, 41 Yt. 655.</p>

Trial by court at the December Term, 1896, Lamoille County, Rowell, J., presiding. Judgment pro forma that the plaintiff take one-third, only, of the estate.

Case for the negligence of the defendant in the construction and maintenance of its sewer. Plea, the general issue. Trial hy jury at the September Term, 1895, Franklin County, Munson, J., presiding. The defendant’s charter empowered the trustees to make and maintain sewers as the public health and convenience might require, and for that purpose to take the land of individuals under proceedings similar to those provided by statute in case of the taking of land for highways.

Trespass for false imprisonment. Plea, tbe general issue with notice. Trial by jury at the September Term, 1896, Orleans County, Ross, C. J., presiding. The plaintiff moved to dismiss the notice because it contained no matter of defense not provable under the general issue, and did contain immaterial and prejudicial statements of fact. The motion was overruled and the plaintiff excepted.

Bill in Chancery. Heard on tbe pleadings, master’s report and exceptions thereto, at tbe September Term, 1896, Rutland County. Rowell, Chancellor, decreed that the orator might redeem by paying the debt in stated installments. The note referred to in the opinion was payable in annual installments of one hundred dollars beginning with July 9, 1871.

Assumpsit in tbe common counts. Plea, tbe general issue. Trial by jury at the March Term, 1896, Washington County, Ross, C. J., presiding. The trust has terminated and the legal title is in the plaintiff, so that a suit at law may be maintained. Any advancements or expenses chargeable to the fund may be offset.

Trover for wood and lumber. Plea, not guilty. Trial by jury at the September Term, 1896, Windham County, Start, J., presiding.

Declaration, tbe common counts in assumpsit. Pleas, tbe general issue witb notice and statute of limitations. Heard on tbe report of a referee at tbe September Term, 1896, Chittenden County, Tyler, J., presiding. Adeline White died in October, 1890, and Hiram in June, 1893. After tbe death of Adeline and before tbe death of Hiram, her estate was settled by her administrator who investigated this claim against Hiram and declined to prosecute it unless indemnified by tbe heirs.

Case for injury through a defect in a highway. Plea, the general issue. Trial by jury at the September Term, 1896, Rutland County, Rowell, J., presiding. The accident occurred on Tuesday.

Petition to foreclose a mortgage. Heard as of the April Term, 1895, Lamoille Comity, upon an appeal from the clerk’s taxation of costs. Start, Chancellor, disallowed certain items in defendant Hunt’s bill of costs, from which disallowance he appealed.

Petition to foreclose a mortgage. Heard on petition and answer at the June Term, 1896, Bennington County, Start, Chancellor.

Assumpsit. Heard upon an agreed statement of facts at the September Term, 1896, Washington County, Taft, J., presiding. Judgment for the plaintiff for the stipulated sum with interest since April 1, 1893. The defendant was a school district until Acts of 1892, No. 20 and 21 took effect.

General Assumpsit. Plea, the general issue. Trial by jury at the September Term, 1894, Washington County, Munson, J., presiding. It appeared that the board and nursing were necessaries, and the plaintiff’s evidence tended to show that the daughter was a non-emancipated minor.

<p>False Imprisonment — Warrant—Arrest.</p> <p>The clerk may issue a warrant in vacation for the arrest of one indicted; therefore he may deliver to an officer in vacation a warrant issued during the term.</p> <p>■When a respondent is arrested upon a warrant which commands the officer to have him forthwith before the county court, and that court is not in session, it is the officer’s duty to' detain him until the court again convenes and he may lawfully commit him to jail for safe keeping.</p> <p>In re Durant, 60 Vt. 176 and Kent v. Miles, 68 Vt. 48, followed.</p> <p>This case is not controlled by V. S. 1701 which relates to process by which</p> <p>the officer is directed to commit to jail.</p>

AVpK,y. from aj&ecree of the probate court for the district *oi Chittenden, ‘accepting the. report of commissioners, -dis alio win g .-tfee claim of the appellant.,,,..® leas, the general issue&hd s^áfCute ofj'.limitátiorfs. Heal'd Upon the report of a referee at the September Term, 1896, Cliittenden County, Tyler,]., presiding. The note was given December 24, 1884. Mrs. Smith died between December 24, 1893, and December 24, 1894.

Appeal- from a decree of the Probate Court for the District of Chittenden, dismissing the petition of the appellant, praying to have the estate finally decreed to her. Pleas, the general issue and in bar. Traverse and replication. Trial by court at the March Term, 1896, Chittenden County, Rowell, J., presiding. The decree giving the petitioner the life use of the estate is not inconsistent with her present claim.

Debt on Collector’s Bond. Heard on the réport of a referee, exceptions thereto by both parties and plaintiffs motion to recommit, at the March Term, 1897, Rutland County, Tyler, J., presiding. The court, pro forma, overruled the plaintiffs motion and exceptions and allowed the application of the overpayment upon the taxes of 1893, according to the direction of the collector, and sustained the defendant’s exception and rendered judgment for the defendant, all as matter of law.

Information for adultery. Plea, not guilty. Trial by jury at the December Term, 1896, Windsor County, Munson, J., presiding. It was for the State to show that Coburn was competent to marry by the laws of New Hampshire. It was an essential fact, and there is no presumption. Taylor v. Boardman, 25 Vt. 581, 586. As to the law of New Hampshire, see True v. Ranney, 21 N. H. 52: 53 Am. Dec. 164; Emerson v. Shaw, 56 N. H. 418. The New Hampshire marriage was illegal in Vermont.

Indictment for using a set-line, under Y. S. 4592. Plea, not guilty. Trial by jury at the September Term, 1896, Orleans County, Ross, C. J., presiding. Upon trial the respondent offered to show, as matter of fact by witnesses and by dictionary definitions that the lines used were not set-lines and excepted to the ruling of the court excluding the evidence. At the close of the testimony he moved for a verdict in his favor and excepted to the denial of his motion.

Ejectment to recover the possession and rent of premises leased to the defendant. Plea, not guilty and . disclaimer. Trial by jury at the September Term, 1895, Franklin County, Munson, J., presiding.

<p>Estoppel — Election of Remedies — Contract to Return Property — Loss by Fire.</p> <p>One who mistakenly supposes himself to have two remedies and chooses the wrong one, is not thereby barred from prosecuting the right one. Election is the choice between two available, inconsistent remedies.</p> <p>A party is not estopped from proving a fact by a former judgment against him unless the precise point was there adjudicated.</p> <p>The plaintiff first sued the defendants in case' for so negligently managing his mill that it was destroyed byfire, and in that suitwas cast. He then sued the defendants for a breach of their contract to return the mill as they received it. Held, that the judgment in the first action was not conclusive of the terms of the contract upon which the mill was let nor any bar to the maintenance of "the second action.</p> <p>If one contracts to return property in as good condition as when he receives it, he is liable for the destruction of the property by fire or other accident.</p>

<p>Assumpsit. Plea, tke general issue. Trial by jury at the September Term, 1896, Washington County, Taft, J., presiding.</p> <p>The defendants requested the court to instruct the jury that if the agent was authorized to sell the tablets, and sold them in his own name without disclosing the principal, and the defendants had no knowledge of the truth, and there was nothing to excite their suspicion, they were entitled to set off any claim they had against the agent, as if the suit had been brought in his name. The instruction was refused and the jury were told that the agent would have no right to sell to the defendants and take pay by credit from the defendants upon their account' against him. To-the refusal and the charge the defendants excepted.</p>

<p>Indictment eor Adultery. Plea, former acquittal. Replication, traverse. Trial by court at tbe December Term, 1896, Windsor County, Munson, J., presiding.</p> <p>The offenses charged in the two indictments are in legal effect the same transaction. If it had turned out that the girl was above the age of consent, the offense would have been adultery, the respondent being married. Hence the two indictments, both found by the same grand jury, were intended to describe the same transaction. The identity of the parties appears. The identity of the transaction (that is, carnal knowledge of the same parties) appears. Looking to the indictment only, the identity of time appears. See State v. Norton, 45 Yt. 258.</p> <p>The true test is, whether the prisoner could have been convicted on the former indictment; for if he could he must be acquitted on the second. Rex v. Dann, 1 Moody, C. C. 424, 426; Rex v. Sheen, 2 Carr. & P. 634, 639.</p> <p>When one offense is a necessary element in another offense and both are in fact but one transaction, an acquittal of one is a bar to a prosecution for the other. State v. Smith, 43 Yt. 324.</p> <p>A crime cannot be split up and prosecuted in parts. Jackson v. State, 14 Ind. 327; Reg. v. Elamgton, 9 Cox Cr. Cas. 86, 90; State v. Cooper, 13 N. J. Law 361.</p> <p>The description of the person makes the identity of the transaction certain. The evidence in the former case was, “it was the first time any one ever had sexual intercourse with her.” The description in this count is, “she then and there being a maiden.” “A maiden” is “applied to a female child, to a female who has preserved her chasity, a virgin.” Richardson’s Diet. See Century Diet; Shakespeare, Much Ado about Nothing; IV, I, 40; King Lear, I, 5, last lines; St. Westm., 3 Edw. I, 25 April 1275, Cap. 13.</p> <p>The indictment stands by itself. The act charged is not the act testified to in the prosecution for rape, but was committed later.</p>

Bill in Chancery. Heard on pleadings, master’s report, exceptions thereto by both parties and orator's motion to recommit, at chambers, December 30, 1896, before Ross, Chancellor, who, pro forma, overruled the motion and exceptions and dismissed the bill with costs. The covenant runs with the land and enures to the benefit of the orator. Kellogg v. Robinson, 6 Vt. 276; Clement's Admrs. v. Putnam, 68 Vt. 285; II Wash.

Assumpsit. Plea, general issue, with declaration in offset. Heard upon the repoi-t of a referee at the December Term, 1895, Windsor County, Rowell, J., presiding. The referee found that if the plaintiff was entitled to the discounts he should have judgment for a sum stated, otherwise judgment should be for the defendants. Fair dealing required the plaintiff to inquire of the principals rather than connive with the agent in attempting to reap the benefit of a breach of trust.

Trespass and Troyer. Plea, the general issue and notice of justification under tax warrants. Heard upon the report of a referee and exceptions thereto by both parties at the September Term, 1895, Rutland County, Rowell, J., presiding. Judgment, pro forma, overruling exceptions and for the plaintiff to recover the amount specified in the report.

Bill in Chancery. Heard upon demurrer at the February Term, 1897, Orleans County. Taft, Chancellor, sustained the demurrer and dismissed the bill with costs. The orator claimed as successor to the rights conveyed to Benjamin F. Herbert by Calvin Harman by the deed of June 11, 1842.

<p>Assumpsit. Rule of reference discharged at the March Term, 1897, Essex County, Start, J., presiding.</p> <p>The reference was not revocable except for legal cause. Knapp v. Fisher, 49 Yt. 94.</p> <p>Though the parties select the referee, the court appoints him, and the court should not discharge its rule without cause. Haskell v. Whitney, 12 Mass. 47; Dexter v. Young, 40 N. H. 130; Ferris v. Munn, 22 N. J. Law 161.</p> <p>Harry Blodgett and W. P. Stafford for the plaintiff. Attention is called to Rev. Stat. (1839) p. 162, §§ 21 and 22, which became R. L. 985 and 986; Acts of 1884, No. 129; V. S. 1437, 1438 and 1439; - also to the following cases construing the statute: Rice v. Clark, 8 Yt. 104;</p> <p>Baxter v. Thompson, 25 Yt. 505; Cook v. Carpenter, 34 Yt. 121; Lazell v. Houghton, 32 Yt. 579.</p>

O. Brainard an insolvent debtor on the petition of Royce A. Smith. Heard upon a motion to dismiss the petition, at the September Term, 1896, Franklin County, Ross, C. J., presiding. The court should have passed upon the question of the debtor’s insolvency. Instead of doing so, it decided against its own jurisdiction. That decision was erroneous and is revisable here.

<p>Complaint and Petition alleging that the respondent usurps the office of alderman and praying that a writ of quo warranto issue against him, to the Supreme Court, for the County of Chittenden at the May Term, 1897. The defendant answered and testimony was taken. The facts disclosed by the pleadings and evidence are stated in the opinion. The complaint was made by the State’s Attorney as such, and also upon relation.</p> <p>The charter was intended to effect a distribution of the powers of government among the wards. The distinction between the city voters and the ward voters is maintained throughout. Thus, the City Judge is to be elected “from among the freemen of the city,” but ward officers, “by the legal voters of each ward,” “from among the legal voters therein.” The word, “therein” refers to ward, not to city, for city is not named in the sentence. Consequently the candidate for alderman must be qualified to vote for alderman and this requires a two months’ residence.</p> <p>The respondent had not the required residence for he did not begin to reside in the fifth ward until J anuary 6, while the election occurred March 2. All that he had done before that time was preparation merely. Residence is something more than intention, it is a fact. Jamaica v. Townshend, 19 Yt. 267.</p> <p>By Y. S. ch. 82, the rights of the relator are determinable in this proceeding. The respondent being disqualified, his election was a nullity and the relator having received the greatest number of lawful ■ votes was elected. Spear v. Robinson, 29 Me. 531; II Spelling Extr. Rel. §§ 1786, 1789; State v. Swearingen, 12 Ga. 23; State v. Gastinel, 20 La. An. 114.</p> <p>This is not a case where the court can exercise a discretion as in State v. Fisher, 28 Vt. 714, and State v. Mead, 56 Yt. 353, for this is a. matter of private right as well as public concern. This statute was first adopted in 1876, and grew out of the litigation of that period (State v. Smith, 48 Yt, 14, 266) and was designed to shape the common law remedy of quo warranto to the trial and determination of the rights of the respective claimants. It is not like the statute, 9 Ann. ch. 20; Ang. & Ames Corp. 685. It is not a petition but a complaint. In this State the court has exercised a discretion, as to allowing a petition, only in cases when the State was not a party. Where the prosecution was by the State’s Attorney the court has refused to exercise a discretion. State y. Harris, 52 Yt. 216; State v. Bradford, 32 Yt. 50. In such cases leave to file is not necessary. Ang. & Ames Corp. 687, 698. If there can be found decisions which hold that a candidate receiving the second highest number of legal votes acquires no title to the office by reason of the ineligibility of the person receiving the highest number, these lack force and application to this case under a statute which provides for this very thing and for determining the right of each.</p> <p>The only qualification for eligibility to the office of aider-man was that the candidate should be a legal voter in the city and a resident of the ward. The word “therein” has only a territorial signification.</p> <p>Even if two months’ residence was required, the respondent complied with the requirement. His residence“was actually in the fifth ward from the first of January.</p> <p>But if the respondent cannot hold the office, the relator is not entitled to it. The votes cast for the respondent are not to be ignored in the count, and they prevented the election of the relator. An election by a minority is not to be tolerated in this country. McCrary, Elections (3 ed.) pp. 198, 199, 200 and 201; Cooley, Const. Lim. (6 ed.) 780; Dillon, Mun. Corp. (4 ed.) § 196; State v. Giles, 52 Am. Dec. 149; Saunders v. Haynes, 13 Cal. 145; State v. Smith, 14 Wis. 497; People v. Chite, 50 N. Y. 451: 10 Am. Rep. 508; Com. v. Cluley, 56 Pa. 270; Barnum v. Gilman, 27 Minn. 466: 38 Am. Rep. 304; Sublett v. Bedwell, 47 Miss. 266: 12 Am. Rep. 338; In re Corliss, 11 R. I. 638: 23 Am. Rep. 538; People v. Mohtor, 23 Mich. 341. See the speech of L. P. Poland in the case of Smith y. Brown, Cong. Globe, 2d session 40th Cong. pp. 1199, 1200, and of J. S. Morrill in the case of Abbott, Cong. Globe, 2d session 42d Cong. pp. 2387, 2389, both of which cases are noticed byMcCrary, ubi supra.</p> <p>Even the English rule is against the relator, for that requires proof that the electors who voted for the ineligible candidate had notice that he was ineligible. King v. Hawkins, 10 East. 211; Rex v. Parry, 14 East. 549; Regina v. Mayor of Tewksbury, 3 L. R. Q. B. 628.</p> <p>At all events, the court should in the exercise of a sound discretion refuse the writ. The respondent lacked, at any rate, only four days of the necessary residence. A construction of the charter will be valueless for it has since been changed. The power and duty of the court to deny the writ is clear. State v. Fisher, 28 Yt. 714; State v. Mead, 56 Yt. 353; Com. v. Jones, 12 Pa. 365; King v. Sargent, 5 T. R. 466.</p>

Assumpsit for breach of warranty of a range sold to the plaintiff by the defendant. Trial by jury at the December Term, 1896, Caledonia County, Taft, J., presiding. The court found that C. A. Day soon after the return of the verdict procured the jury to be treated to cigars; that Day had been a witness for the defendant upon the trial, and its superintendent for the territory in which the sale was made, and attended the trial as the representative of the defendant.

General and Special Assumpsit upon a policy of life insurance. Plea, the general issue, with notice of special matter in defense. Trial by jury at the December Term, 1896, Bennington County, Thompson, J., presiding. The application contained the following questions, each of which the applicant answered in the negative: “ Question H. Are you now, either directly or indirectly, concerned in either the manufacture or sale of any kind of alcoholic beverages ? ” “Question Ha.

Petition to the Supreme Court for the County of Chittenden at the May Term, 1896, for awrit of prohibition against Thomas C. Robbins as Judge of the Court of Insolvency for the District of Rutland, George E. Lawrence, attorney for the Walter A. Wood Mowing and Reaping Machine Co., and John D. Miller as assignee in insolvency of the same company. The defendants answered, evidence was taken and a stipulation filed, upon which the case was heard.

Special Assumpsit. Special pleas in bar and a general replication. Heard on special demurrer to the replication at the December Term, 1896, Bennington County, Thompson, J., presiding. At common law a general denial by way of replication is only allowed to pleas alleging matter of excuse. Crogate's Case, 8 Coke 66; I Smith, Lead. Cas. 151; Lytle y. Lee, 5 John. 113; Marshall v. Aiken, 25 Yt. 327. The rule is of practical use and should be retained.

Indictment for assault with intent to rob. Plea, not guilty. Trial by jury at the December Term, 1896, Windsor County, Munson, J., presiding. In the cross-examination of Orson Sargent, he was aslced in behalf of the State whether he had not been convicted in the United States Circuit Court for selling liquor without a government license, and replied that he had not, that the matter had been settled up in some other way, but exactly how he did not remember.

Assumpsit upon a policy of fire insurance. Heard upon a general demurrer to the declaration at the September Term, 1896, Windham County, Start, J., presiding. The declaration, after setting forth the policy, alleged, among other things, the loss and proof thereof to the company. The declaration is insufficient because there is no allegation of a promise. The declaration is insufficient because the mortgageeisnot a plaintiff.

<p>No Need to Plead What Is Conceded— Wife as Witness — Evidence jrom Probability</p> <p>The plaintiff in trespass on the freehold can take no advantage of the defendant’s failure to plead a right of way, when he concedes on trial the existence of the right and the only dispute is concerning its location. Upon the question where the plaintiff had located the way of necessity, it was admissible for the defendant to show where the plaintiff had said he intended to locate it, and where it had been used by the defendant, and others visiting his premises, with the knowledge and without the objection of the plaintiff.</p> <p>The court properly refused to permit the wife of the plaintiff to testify, for the general rule excluded her and the plaintiff did not offer to show that she came within the exception.</p>

Appear from an order of the Probate Court for the District of Franklin, accepting the report of commissioners upon the estate of the appellee disallowing the claim of the appellant. Declaration in assumpsit, with specification of two notes, each for twelve hundred dollars, dated December 11, 1891. Plea, the general issue, with notice denying the execution of the notes and the genuineness of the signatures.

<p>Book Account. Heard on report and supplemental report at the April Term, 1896, Franklin County, Start, J., presiding.</p>

Debt on a bond given to the Court of Insolvency for the District of Manchester. The defendants filed a general demurrer.

Petition to the Supreme Court for the County of Franklin for a writ of mandamus. Answer and testimony. The facts are stated in the opinion. The statute is mandatory. Y. S. 2143; White y. Haskins, 59 Yt. 555; Sowles v. Flmn, 63 Yt. 563. Mandamus is the appropriate remedy. Y. S. 1617, 1618, 1619; Si. Albans y. National Car Co., 57 Yt. 68; Redfield y. Windom, 137 U. S. 643.

General Assumpsit. ■ Heard upon the report of a referee, exceptions thereto by both parties and the defendant’s motion to recommit, at the December Term, 1896, Orange County, Start; J., presiding.

General Assumpsit. Plea, the general issue and declaration in offset. Trial by jury at the May Term, 1896, Windsor County, Tyler, J., presiding. Verdict for the plaintiff for the amount claimed under the specifications and three special verdicts touching the amount of the defendant’s damages in offset.

<p> Provision in Lease Lnsiifficient to Reserve Lien. </p> <p>A provision in a lease that the lessee shall not dispose of any produce grown on the premises until payment has been made of the rent and one-half of the taxes and the cows have been wintered through, is not sufficient to reserve a lien, and the produce may be attached as the property of the lessee.</p> <p>McLellan v. Whitney, 65 Vt. 510 followed.</p>

Bill in Chancery. Heard upon bill, answer and master’s report, at the December Term, 1896, Bennington County, Thompson, Chancellor. The master reported in substance as follows: The orator is a son and only child of the defendant and became of age August 25, 1869. In November of the same year he went out to work for a month.

<p>Trover for a borse. Plea, tbe general issue. Trial by jury at the February Term, 1897, Orleans County, Taft, J , presiding.</p>

Pleas to the jurisdiction and, the same being held insufficient on demurrer, nul tiel record. Trial by court at the December Term, 1896, Bennington County, Thompson,, J., presiding. Under the plea of nul tiel record the defendant offered evidence to impeach the judgment which constituted the plaintiff’s claim, but the same was excluded and the defendant excepted.

Trustee -Process. Heard upon tbe report of a commissioner at the September Term, 1896, Windham County, Start, J., presiding. It was the custom for the trustees to pay the return premiums, and they should be allowed to deduct what they have thus paid. V. S. 1365; Strong & Buck v. Mitchell, 19 Yt. 644. The trustees’ undertaking was original and not within the statute of frauds. Greene v. Burton, 59 Yt. 423; Farnham v. Chapman, 61 Yt. 3j55.

<p>Appeal from Probate. Trial by court at the March Term, 1897, Franklin County, Ross, C. J., presiding.</p> <p>By the will, Mai-y S. King was to receive $2000, the Parish $10,000, Mary E. Chennette $2000, and other specific legacies, and the residue of the estate was to be divided equally between Mary E. Chennette and the Parish. The will was allowed in the probate court and an appeal taken by Mrs. King. While the appeal was pending in the county court a contract was signed by and between Mrs. King, Mary E. Chennette and the Parish by which it was agreed that the will should be allowed without contest and that the executor should pay to Mrs. King “one-half of the balance and residue of said estate given and bequeathed to the said Mary E. Chennette, to an amount not exceeding three thousand dollars;” and that the executor should pay Mrs. King from the share of the Parish enough to make up the sum of $3000, “if the said one-half residue and remainder of Mary E. Chennette’s share is not equal to said three thousand dollars.”</p> <p>Upon the strength of this agreement the probate court made its decree of distribution. The residue amounted to $5847.37, one-half of which, $2923.68, was by the will bequeathed to-Mary E. Chennette and the other half to the Parish. The decree gave one-half of the last named sum, namely, $1461.84, to Mary E. Chennette, and the other half to Mrs. King and from the share of the Parish gave to Mrs. King $1538.16 to make the sum of $3000. The Parish appealed, and in the county court offered to show by parol evidence, covering the negotiations that preceded the contract, that the actual intention of the parties was that Mrs. King should receive the whole of Mary E. Chennette’s half of the residue unless it exceeded $3000. The offer was excluded and the Parish excepted.</p>

Case for negligence. Heard on general demurrer to the declaration at the September Term, 1896, Chittenden County, Tyler, J., presiding. The declaration alleged that the plaintiff when he received the injury was walking on a portion of the railroad which had been for many years in constant use by the public as a passage way with the knowledge and implied consent of the defendant.

Bill in Chancery. Heard upon demurrer incorporated in the answer, at the December Term, 1896, Addison County, 1896. Tyler) Chancellor, sustained the demurrer, and dismissed the bill with costs to the defendants.

Trover for forty barrels of flour. Plea, the general issue. Heard on the report of a referee and the defendant’s exceptions thereto at the March Term, 1897, Rutland County, Tyler, J., presiding. The following is a summary of the report. The plaintiffs are dealers in flour at Rutland.