Volume 70 — Vermont Reports

Indictment for an assault with intent to kill and murder. Trial by jury at the May Term, 1895, Windsor County, Taft, J., presiding. Verdict and judgment of guilty, and sentence imposed at the respondents’ request. The respondents excepted.

Fuller. Objections, incapacity and undue influence. Trial by jury at the December Term, 1895, Ross, C. J., presiding. Verdict and judgment for the-proponent.. The contestant excepted. The contestant, having introduced evidence that the sister of the testatrix had been insane, propounded a question to-an expert witness upon the supposition that there was hereditary insanity in the family.

Bill in Chancery. Tbe cause came on for hearing upon the'pleadings, the original and supplemental reports of the master and exceptions of both parties thereto, at the December Term, 1895, Addison County. Norton was a passive trustee for Smith, He conveyed to Smith’s wife by Smith’s direction. This amounted to a conveyance by Smith to his wife through a trustee, the necessary method.

The cases were tried together. The first is trover with a count in trespass; the second, trover in two counts. Plea, the general issue in each case. Trial by court at the September Term, 1896, Chittenden County, Tyler, J., presiding. Judgment for the plaintiff* in each case. Both parties excepted. The court found the following facts: The defendant was appointed guardian unto George H. Thorp in June, 1894.

Petition to foreclose a mortgage. Tbe cause came on for hearing upon the pleadings and master’s report at the March Term, 1897, Chittenden County. Munson, Chancellor, rendered a pro forma decree in accordance with the petitioner’s claim. The defendants appealed. It is immaterial whether all of the Wheeler purchase was actually used for household purposes. West River Bank v. Gale, 42 Yt. 27. The homestead was in the entire purchase.

Bill in Chancery. The cause came on for hearing upon the pleadings and master’s report at the May Term, 1896, Windsor County. Tyler, Chancellor, rendered a pro forma decree dismissing the bill with costs. The oratrix appealed. The trust found by the master is an express one. Drake y. Wild, 65 Yt. 611. Acquiescence is a matter of. defence and to be available must have been with full knowledge of the party’s legal right. Farrant y. Blanchjord, 1 DeG.

Petition for reassessment of damages for land taken nnder Acts of 1894, No. 283. Heard on the report of commissioners at the September Term, 1896, Orleans County, Ross, C. J., presiding. Judgment, pro forma, that the petitioner recover the entire amount of the award and interest. The petitioner excepted. The sum awarded by the commissioners for damages occasioned before the commencement of condemnation proceedings should not have been included in the judgment.

General Assumpsit. Plea, the general issue. Trial by jury at the September Term, 1896, Orleans County, Ross, C. J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. At the conclusion of the plaintiffs case both parties rested. No question was made as to the truth of the evidence.

Disbarment proceedings. Heard on report of commissioners to the Supreme Court for the County of Rutland at the May Term, 1897. The complaint alleged that at the September Term, 1896, of the county court for Rutland County the Hou.

Scire Facias upon a recognizance. Plea, former judgment -upon the same cause of action in the city court of the city of Rutland. Replication that the city court had no jurisdiction. Joinder of issue. Upon hearing it was agreed that the replication should be treated as demurred to and ■considered as tendering an issue of law upon the question whether the city court had jurisdiction. Acts of 1892, No. 110, creating the city court, was referred to.

General and Special Assumpsit. Plea, the general issue with notice. Declaration in offset with the common counts in assumpsit. Trial by jury at the September Term, 1896, Essex County, Munson, J., presiding. Verdict and judgment for the plaintiff. Both parties excepted. It became material to show what a given number of feet weighed, in the log, as bearing on the correctness of the defendant’s scale of logs shipped to him by the plaintiff.

Covenant. Plea, the general issue with notice. Trial by jury at the February Term, 1897, Orleans County, Taft, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Special Assumpsit. Plea, the general issue. Trial by jury at the December Term, 1896, Caledonia County, Taft, J., presiding. Yerdict and judgment for the defendant. The plaintiff excepted.

Replevin. Pleas, the general issue and a special plea. General and special demurrer to the special plea. Heard at the December Term, 1896, Bennington County, Thompson, J., presiding. The special demurrer assigned as causes that the plea did not allege any notice to the plaintiff of the impounding or of the appraisal of damages or of the hearing upon appraisal or that the beasts were taken doing damage.

Assumpsit. Plea to the jurisdiction. Demurrer to the plea. Heard at the December Term, 1896, Caledonia County, Taft, J., presiding. The defendant is a foreign corporation.

Action upon the statute to recover treble damages for cutting timber. Plea, general issue. Trial by jury at tbe December Term, 1896, Addison County, Tyler, J., presiding. Verdict and judgment for tbe plaintiff. The defendants excepted.

<p>Trustee Process — Fund Held, by Defendant and Claimant Jointly.</p> <p>The debt sought to be held by trustee process was the price of milk sold and delivered to the trustee by the defendant. The milk was produced from cows owned by the claimant and managed by the defendant under a contract contained in a lease from the claimant to the defendant of a farm and the cows thereon, whereby the defendant was to pay the claimant one-half the rents and profits after deducting taxes and expenses, each party retaining a lien on his undivided share. Held, that the fund was not subject to trustee process, for it was the joint property of the defendant and claimant.</p>

Case upon Y. S. 2451 and 2452, for negligently killing the intestate to the damage of his father as next of kin. Heard on demurrer to the defendant’s second, third, fourth, seventh and eighth pleas and a motion to dismiss the fifth and sixth pleas, at the September Term, 1896, Windham County, Start, J., presiding.

Heard on motion to dismiss the appeal as to the appellant, George H. Davis, at the September Term, 1897, Orleans County, Rowell, J., presiding. It was conceded, and agreed to be treated as apparent of record, that Nelson was the owner of real estate at the time of his death. Said Lizzie G. Davis is his daughter.

General and Special Assumpsit. Plea, the general issue with notice. Trial by jury at the December Term, 1896, Orange County, Start, J., presiding. Verdict and judgment for the defendants. The plaintiff excepted. There was a special count upon a promissory note for one thousand dollars, dated October 9, 1894, payable to H. P. Reynolds or bearer in one year from date, signed by the defendants and delivered and assigned by Reynolds to the plaintiff for value before maturity.

<p>Appeal from Probate. Assumpsit. Heard upon the report of a referee at the March Term, 1897, Rutland County, Tyler, J., presiding. Judgment for the defendant. The plaintiff excepted.</p>

<p>Appeal prom Probate. Heard on petition to dismiss the appeal at the May Term, 1897, Windsor County, Start, J., presiding.</p>

Heard upon bill and answer .at the March Term, 1897, Washington County, before Rowell, Chancellor. Decree for the orator. The defendants appealed. Held: and not otherwise; that the provisions of the will for the benefit of the orator constitute a trust, as continuous as the life of the orator, which it is the duty of the administrator as such to administer.

Petition for appointment of a guardian unto Edmund McCabe on the ground of insanity and incapacity. Trial by jury at the May Term, 1897, Windsor County, Start, J., presiding. Verdict and judgment for the petitionee. The petitioners excepted.

<p>Arson — Prior Attempts — Motion for Verdict.</p> <p>Evidence of previous unsuccessful attempts to commit the same crime is admissible.</p> <p>In a prosecution for arson, for procuring the burning of a barn, the State may show that some six weeks before the barn was burned the house on the same premises was set on fire, in connection with evidence that the respondent had predicted that the buildings would burn and had tried to hire others to bum them.</p> <p>The attempt to burn the house was also admissible as tending to show that the fire by which the barn was burned was incendiary.</p> <p>The evidence of the State, although wholly circumstantial, tended to ■ prove the respondent’s guilt, and the court properly refused to direct a verdict.</p>

<p>General and Special Assumpsit.' Trial by jury at the September Term, 1896, Washington County, Taft, J., presiding. Verdict for the plaintiff. The defendant moved to set aside the verdict as against the weight of evidence and contrary to the instructions. The court were of the opinion that the jury either misunderstood the instructions or disregarded them, and set aside the verdict. No evidence was introduced in support of' the motion. The plaintiff ■excepted.</p>

<p>Percolating Water — Prescription — Injunction — Conveyance of Spring Carries What Rights in Grantor's Adjacent Land.</p> <p>Water coming from rain and melting snows, percolating the soil of a hillside to the bed rock, down which it wanders in depressions and passages of unknown location, size and direction, is to be considered percolating water, clearly distinguishable from water flowing in a well defined underground channel; and one who digs to the bed rock and there gathers and draws off such water cannot be restrained by injunction, although by so doing he diminishes the supply in his neighbor’s spring.</p> <p>There are no correlative rights between owners of adjoining land in respect to percolating water.</p> <p>The doctrine of prescription has no application to percolating water.</p> <p>A deed of “a spring of water and the pipe that conveys the water from said spring,” does not carry water percolating the adjacent soil of the grantor, before it reaches the spring; consequently the grantor cannot be enjoined from digging another spring upon his own land although its effect may be, by interrupting such percolation, to diminish the supply in the one conveyed.</p>

Assumpsit. Plea, the general issue. Trial by jury at the March Term, 1896, Washington County, Ross, C. J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The action was brought to recover a tax alleged to have been voted and assessed upon the grand list of 1894.

Assumpsit to recover for the support of an alleged pauper. Plea, the general issue. Trial by jury at the June Term, 1897, Orange County, Thompson, J., presiding. The court directed a non-suit. The plaintiff excepted.

The bill was brought by Walter S. S. Buck for himself and for his children, who were all minors, alleging that the children were owners in fee of the real estate devised, and that the father had no interest therein except as trustee for them, and seeking to enjoin the defendant, a creditor of the father, from selling the real estate upon execution against him.

Debt upon V. S. 4230 to recover a forfeiture for not keeping the defendant’s poles painted and not substituting straight poles for crooked ones. Heard upon special demurrer to the declaration at the June Term, 1897, Caledonia County, Rowell, J., presiding.

<p>Demurrer in Answer — Sufficiency of Affidavit to Chattel Mortgage — Lien of Mortgagee when not Abandoned by Purchase and Sale — Insolvency Law — Transfers in Fraud of that Law how Purged — Exception —Costs.</p> <p>The defendant, in his answer, demurred to the jurisdiction for that the orators have an adequate remedy at law. But as the demurrer was not brought on for hearing before the merits were gone into it was waived; and as chancery has jurisdiction of the subject matter, namely, of enjoining actions at law, it will retain the case, and deal with it according to the practice of the court.</p> <p>In appeals from chancery an objection not made below may be made here if it is one that could not have been obviated.</p> <p>"When the condition of a chattel mortgage states the liability specifically, and the oath is, that the mortgage was made for the purpose of securing the debt or liability specified in the condition thereof, and for no other purpose whatever, and that the same is a just debt or liability, honestly due and owing from the mortgagor to the mortgagee, the statute is substantially complied with.</p> <p>A mortgagee of personal property does not abandon his lien by purchasing the goods under an arrangement with the mortgagor that he shall resell them and apply the proceeds to the discharge of the liability indemnified against by the mortgage.</p> <p>Such a transaction amounts to a purchase of the equity of redemption and does not discharge the mortgage lien even though it be, as to the equity, in contravention of the insolvency law.</p> <p>The resale under such an arrangement, for a fair price and before insolvency proceedings, does not discharge the lien, but is valid and effectual to pass the title as against the mortgagor’s assignee in insolvency, for the mortgagor may lawfully consent to a sale, even before condition broken, for the purposes of the mortgage.</p> <p>But although in such a case the mortgagee has a right to sell for the purposes of the mortgage, yet the transfer of the equity to him may be a fraud upon the insolvency law, and if so the assignee is entitled to the proceeds of the sale less the amount appropriated to the purposes of the mortgage, unless the fraud has been purged by matter ex post facto.</p> <p>In the case at bar the fraud was purged to the extent of another debt of the mortgagor -which the mortgagee, by direction of the mortgagor, paid from the proceeds of the sale, before insolvency proceedings, to a bona-fide creditor who was without notice of the fraud upon the insolvency law.</p> <p>A report is not to be set aside nor recommitted for failure of the master to report, upon request, all the evidence upon which he makes a certain finding, when he specifically states the facts upon which that finding is based, and it is not claimed that those facts were found without evidence, and they tend to sxipport the inference.</p> <p>An exception that the master ought not to have received or considered any of a certain class of testimony is available only in case the master was wrong in every particular.</p> <p>“When a party defends an action at law and afterwards resorts with success to a court of chancery to have the action enjoined, it is not the practice to saddle his opponent with the costs both at law and in chancery but only with the costs of one proceeding.</p> <p>The granting of the injunction against further proceedings on the part of the defendant is made conditional upon the orators paying into court for his benefit the amount to which he is entitled.</p>

General Assumpsit. Plea, the general issue. Trial by jury at the December Term, 1896, Addison County, Tyler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Petition to foreclose a mortgage. Heard upon pleadings and master’s report at the February Term, 1897, Orleans County, before Taft, Chancellor. Decree for the petitioner. The defendants appealed. Exhibit No. 4, referred to in the opinion, was a mortgage deed, dated July 29, 1882, from Mary A. Blake to H. N. Wright and Orpha Wright, the condition of which recited an agreement for the life-support of the mortgagees by the mortgagor.

Bill in Chancery. Heard upon pleadings, master’s report and orator’s motion to set aside the report, at the December Term, 1896, Bennington County, before Thompson, Chancellor.

General Assumpsit, with a special count upon a fire insurance policy. Upon general and special demurrer to the special count, at the March Term, 1897, Washington County, Rowell, J., presiding, The special count alleged that a portion of the personal property insured and destroyed belonged to the plaintiff.

<p>Receiptor's Contract— What Will Relieve Him from Liability.</p> <p>The receiptor’s obligation, even when absolute in its terms, is contingent by operation of law. His contract is to return the property to save jthe officer from liability to the attaching creditor or the owner, and he can defend by showing whatever will relieve the officer from this liability.</p> <p>A receiptor is released by an adjudication of insolvency against the attachment debtor which dissolves the attachment, although a part of the property had been previously disposed of by the debtor, and ■ although execution was taken out and the property demanded in season to have permitted a sale upon execution before the filing of the petition,, for the court will not assume that the officer would have proceeded thus speedily in the absence of any evidence that the creditor had directed it.</p>

Trustee Process for the collection of a tax, claimed to be dne from the defendant to the town of Salisbury of which the plaintiff is collector. Upon the report of a referee at the December Term, 1896, Addison County, Tyler, J., presiding, a pro-forma judgment was rendered for the defendant, and the plaintiff excepted. The defendant, claiming to be a non-resident, returned an inventory containing her real estate only.

Complaint for owning and keeping intoxicating liquor with intent to sell the same contrary to law. Plea, not guilty. Trial by jury at the March Term, 1897, Washington County, Rowell, J., presiding. Verdict and judgment of guilty. The respondent excepted.

Biel in Chancery. Upon the pleadings and master’s report at the December Term, 1897, Rutland County, Munson, Chancellor, rendered a pro-forma decree dismissing the bill with costs. The orator appealed. A fair ante-nuptial agreement to relinquish her right to an allowance from the estate of her husband, when carried out upon his part, will be enforced against the widow.

Trover. Heard on the report of a referee at the December Term, 1895, Lamoille County, Start, J., presiding. Judgment for tbe plaintiff. The defendant excepted. The right of the administrators under their reservation was only to enter and take. The defendant was not bound to deliver. His refusal was not a conversion.

Petition to foreclose a mortgage. Heard upon pleadings and master’s report at the February Term, 1897, Orleans County, before Taft, Chancellor. The bill was dismissed as to the defendant Aldrich, and a decree rendered as against the defendant Greenwood. The orator appealed.

Indictment for murder. General demurrers, which were overruled. Pleas, not guilty. Trial by jury at the September Term, 1896, Washington County, Ross, C. J., presiding. Verdict, guilty of manslaughter, not guilty of murder in the second degree, not guilty of murder in the first degree. The respondents excepted. The constitution insures to the accused the right to a trial by a common law jury. Bill of Rights, Act 10; Stale v. Peterson, 41 Vt. 504.

General Assumpsit. Plea, the general issue. Trial by jury at the September Term, 1897, Orleans County, Rowell, J., presiding. Verdict ordered and judgment thereon rendered for the plaintiff. Both parties excepted. The plaintiff sought to recover money which he paid the collector of the defendant for taxes assessed on the list of 1895.

Petition for divorce. Heard at the December Term, 1896, Windsor County, Mtmson, J., presiding. The petition was not contested, and the facts stated in the opinion as to the manner in which the parties separated were drawn out by inquiries of the court. The petition was dismissed on the ground that the petitioner’s conduct was such as would have given the petitionee a cause for divorce but for her own fault.

Case for injury through insufficiency of the defendant’s bridge. Plea, general issue. Trial by jury at the May Term, 1897, Windsor County, Start, J., presiding. Verdict and judgment for the plaintiff.

Indictment for rape upon a girl under the age of fourteen years. Trial by jury at the September Term, 1897, Wind-ham County, Ross, C. J., presiding. Verdict guilty. The respondent excepted. If the magazine was ambiguous, the ambiguity was patent and not explainable by parol. The magazine and letters should not have been permitted to go to the jury-room. It was a breach of the Constitution which requires that the respondent shall be confronted by the witnesses.

Case. Plea, the general issue. Trial by jury at the September Term, 1897, Windham County, Ross, C. J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

<p>Biel in Chancery. Heard on pleading and master’s report at the September Term, 1897, Orleans County, before Rowell, Chancellor, who dismissed the bill with costs. The orator appealed.</p> <p>Y. S. 3337 declares that no town shall be assessed towards the expense of building or maintaining any highway in another town, except as provided in the two preceding sections, which relate solely to a highway which is laid out near to instead of upon the town line for the reasons of convenience there mentioned. This highway was laid out upon the line.</p> <p>The county road commissioners had no authority unless by virtue of V. S. 3489, and that section limits their authority to highways within the town assessed or upon the hne between that town and another. This highway was not upon the line. It was laid there, but constructed elsewhere.</p> <p>Y. S. 3489, at any rate, authorizes only a joint assessment, which means an equal one, for it provides that the towns shall be “jointly liable.”</p>

Case for fraud. Plea, the general issue. Trial by jury at tbe September Term, 1896, Windham County, Start, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted.

<p>Burglary — Production of Goods Evidence of Value.— Variance — V. S. 1630 —Dwetting-Hotise of Married Woman — Evidence—Motion to Set Aside Verdict.</p> <p>The production in court and submission to the jury of the articles alleged to hare been stolen is sufficient evidence of their value to support a verdict, without an appraisal by witnesses.</p> <p>If goods alleged to have been stolen are described in the information as belonging to one person, while the testimony is that they belonged to another, this is no reason why the case should not be submitted to the jury. It is a question of variance which can be raised only by objecting to the testimony.</p> <p>The same answer applies to the objection that in the information the goods are valued collectively, while as to one of the articles there is no evidence of taking.</p> <p>Such questions of variance do not go to the right of the matter and, under V. S. 1630, are unavailing unless raised in the trial court.</p> <p>A dwelling-house owned by the wife and occupied by her and her husband is properly described in an information for burglary as her dwelling-house; but, if not, the question is one of variance only.</p> <p>The respondent’s possession of goods on Sunday which the State’s evidence tended to show were taken the night before from the house alleged to have been burglarized, was a circumstance which, unexplained, might be weighed by the jury upon the question of the respondent’s guilt of the burglar'y.</p> <p>A motion to set aside a verdict for insufficiency of evidence is addressed to the discretion of the trial court, whose decision thereon is not revisable here.</p> <p>If upon any material point assigned, such as that the crime was committed in the night, there was a total lack of evidence, it was the duty of the trial court to set aside the verdict when moved to do so upon that ground. But in this case the court conclude upon reading the whole record that there was no such lack.</p>

Indictment for murder. Trial by jury at the March Term, 1897, Washington County, Rowell, J., presiding. Verdict, guilty of murder in the first degree against both respondents. The respondents moved for separate trials, but the motion was denied and they were tried together.

Trespass Quare Clausum. Heard on an agreed statement at the December Term, 1897, Orange County, Ross, C. J., presiding. Judgment, pro forma, that the defendant recover its costs. Tbe plaintiff excepted.

Replevin of cattle. Plea the general issue. Trial by jury at the September Term, 1897, Windham County, Ross, C. J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The third request to charge, referred to in the opinion, was, that if, at the time the writ was served, the cattle were restrained by defendant, but had not been restrained twenty-four hours, the plaintiff could not recover.

In Chancery, Rutland County. Upon the pleadings, master’s report and exceptions thereto, Tyler, Chancellor, rendered a projorma decree overruling the exceptions and granting the prayer of the bill. The defendant appealed. The defendant first named in the bill is administrator upon the estate of Samuel Nelson. The other defendants and the orator are children or grandchildren of Polly Cathcart, a sister of said Nelson.

Trover for store furniture, fixtures and a stock of goods. Plea, general issue with notice. Trial by jury at the September Term, 1897, Chittenden County, 7aft,}., presiding. Verdict ordered and judgment thereon rendered for the defendant. The plaintiff excepted.

In Chancery. Heard on pleadings, master’s report, exceptions thereto, and motion to recommit, at the December Term, 1895, Caledonia County, Ross, Chancellor. The motions were overruled, the original bill dismissed, and a decree rendered for the defendants, under the prayer of the cross bill, for a division of the bulkhead and flume in the manner proposed by them. The orators appealed.

Indictment for Murder. Plea in abatement to the indictment. Heard upon demurrer to the plea, at the September Term, 1897, Washington County, Tyler, J., presiding. Demurrer sustained; plea adjudged insufficient, and indictment sufficient. Judgment that the respondent plead over. The respondent excepted and the cause was passed to the supreme court for hearing on the exceptions before final judgment.

Appeal by contestants from a decree oí the probate court allowing an instrument as the last will of Ira Barney. Contested upon the grounds of defective execution, incapacity and undue influence. Trial by jury, at the March Term, 1897, Chittenden County, Munson, ]., presiding. Verdict and judgment for the proponent.

Bill in Chancery to foreclose a mechanic’s lien or have tbe orators’ claim declared a charge. Heard upon the pleadings and a master’s report at the September Term, 1896, Franklin County.

Assumpsit. Trial by jury, at the September Term, 1896, Washington County, Taft, J., presiding. Yerdict and judgment for the plaintiff. The defendant excepted. In 1882, Morse executed to Bruce, the intestate, a note for eight hundred dollars, and a mortgage upon land to secure it.

Special Assumpsit. At tbe February Term, 1896, Grand Isle County, Start, J., presiding, tbe cause was beard upon demurrer to tbe declaration, and the demurrer was overruled and exceptions of tbe defendants to that ruling were ordered to lie. At the August Term, 1896, a new declaration was filed. At tbe August Term, 1897, 'Taft, J., presiding, tbe cause was beard upon tbe report of a referee, the defendants’ exceptions thereto and motion to recommit.

In Chancery. Upon bill, answer and master’s report, at tbe September Term, 1897, Washington County, Tyler, Chancellor, rendered a pro-forma decree dismissing the bill and allowing the defendants the larger sum reported as damages under the injunction bond. The orator appealed.

Trustee Process. Heard on the report of a commissioner at the June Term, 1897, Caledonia County, Rowell, y., presiding. Judgment that the trustee is chargeable. The claimant excepted. Hoffman, mentioned in the opinion, was the plaintiff’s attorney in bringing the action, and, before its co'mmencement, was shown the mortgage in question while examining the records in the town clerk’s office under the employment of the plaintiff.

Indictment for perjury. The' respondent demurred, and his demurrer was overruled, pro forma, and the indictment adjudged sufficient; to which he excepted. He was then ordered to plead over, but without prejudice to his demurrer; and thereupon pleaded, not guilty, and was tried by jury at the March Term, 1897, Washington County, Rowell, J., presiding. Verdict, guilty. Exceptions allowed, sentence and execution respited and stayed.

Indictment for perjury. Heard on demurrer to the indictment at the December Term, 1897, Caledonia County, Thompson, J., presiding. cited Clark’s Crim. Pro. pp. 156,157, note 87 and cases cited: State v. Collins, 62 Vt. 195; Stale v. McCone, 59 Vt. 118; State v. Reach, 40 Vt. 118; State v. Doherty, 103 Mass. 443; Rex v. Aylett, 1 T. R. 63, 69; Reg. v. Thomas, 2 Car. & Kir. 806; State v. Powell, 28 Tex. 626; Dodge v. State, 24 N. J. L. 455; Carpenter v. State, 4 How 163: 34 Am.

Action to recover damages paid by plaintiff to owners of sbeep billed by dogs, against defendants as owners of tbe dogs. Trial by jury at tbe September Term, 1897, Windbam County, Ross, C. J., presiding. Verdict and judgment for tbe defendants. Tbe plaintiff excepted.

<p>Trover for lumber. Trial by jury at tbe December Term,. 1896, Windsor County, Munson, J., presiding. Yerdict and judgment for tbe defendants. Tbe plaintiff excepted.</p> <p>It appeared tbat tbe plaintiff held a note for $4600, signed by tbe defendant Ames, secured by a mortgage upon lumber. The note was dated at Norwich, Vermont, where the maker resided. The lumber was situated in the sametown, and the mortgage was there executed and recorded. The plaintiff resided in Rhode Island, where, it was conceded, any rate of interest agreed upon by the parties is legal. The defendant Ames arranged with the plaintiff, in Rhode Island, for a loan of $4000, for which he was to give him the note referred to for $4600. The plaintiff claimed that $200 was to be paid to the plaintiffs agent Moore, under an agreement between Ames and Moore, for the latter’s services in procuring the loan and passing upon the security; that after the note and mortgage were executed, Moore took them to Norwich with checks payable to Ames for $3800, and one payable to himself for $200, and, after again examining the records, delivered the check for $3800 to Ames, retaining the other, as agreed, and left the mortgage to be recorded.</p> <p>The defendant claimed that he never agreed to allow Moore $200, or knew that he retained it, and that he never understood why he did not receive the $4000.</p> <p>It appeared that when the mortgage was given, the lumber was stuck up in the yard of the defendant’s mill in sixty different piles, as described in the mortgage, each pile marked by a tin tag attached thereto with the plaintiff’s name thereon. The defendant did not deny that it was part of the contract that none of the lumber should be removed or touched.</p> <p>Such payments had been made on the note before the alleged conversion that if the amount furnished was only $3800, there was nothing due upon it, if treated as a Vermont contract.</p>

Petition under V. S. 2699, for tbe custody of minor children of the parties. Heard at the September Term, 1897, Washington County, Ross, C. J., presiding. The question and its disposition are stated in the opinion.

<p>Replevin. Plea, not guilty. Trial by court at tbe June Term, 1897, Bennington County, Ross, C. J., presiding. Judgment for the defendant. The plaintiff excepted.</p>

<p>Debt on judgment. Heard on a referee’s report at the June Term, 1897, Bennington County, Boss, C. J., presiding. Pro-forma judgment for the plaintiff. The defendant excepted.</p>

Case under V.S. 2452 for damages to next of kin resulting from the death of the intestate caused by an insufficiency in the defendant’s highway. Trial by jury at the September Term, 1897, Windham County, Thompson, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted.

Case. Heard on demurrer to the amended declaration at the March Term, 1897, Chittenden County, Munson, J., presiding.

Petition for mandamus. Pleard at tbe January Term, 1898, of the supreme court sitting for the County of Washington.

Heard upon the report of a commissioner at the June Term, 1897, Orange County, Thompson, J., presiding. Both parties excepted. The pertinent facts not stated in the opinion are presented by the following extract from the report: “Electa Hall died February 22, 1885, leaving the will of which the appellee, Skinner, is executor. Under this will John Hall, her surviving husband, was sole legatee. It is dated December 23, 1882, and was probated May 21, 1885.

Petition for appeal from the judgment of a justice. Heard upon petition and agreed case at the June Term, 1897, Caledonia County, Taft, J., presiding.

Chancery. Heard upon pleadings, master’s report and exceptions thereto at the June Term, 1894, Bennington County, before Taft, Chancellor, without argument. Equity has jurisdiction. Lyon v. McLaughhn, 32 Vt. 423; Marble Co. v. Adams, 46 Vt. 503; Canfield v. Andrew, 54 Vt. 12; Sargent si. George, 56 Vt. 631; Gzlchnst v. Van Dyke, 63 Vt. 78. If the orator has any rights they are enforcible at law. Marble Co. v. Adams, 46 Yt. 496; Currier v. Rosebrooks, 48 Yt. 34.

• Assumpsit upon a policy of life insurance. Plea, not guilty and notice. Trial by jury at tbe May Term, 1897, Windsor County, Start, J., presiding. Yerdict and judgment for the plaintiff. The defendant excepted.

Chancery: Tbe cause came on to be heard upon the pleadings and the master’s report at the December Term, 1897, Bennington County, before Taft, Chancellor, when a pro-forma decree was rendered dismissing the bill with costs to each defendant. The orator appealed. The orator was one of the bondholders. It is a case of agency.

Petition for writ of prohibition. Heard upon pleadings and testimony at the January Term, 1898, of the Supreme Court, sitting for the county of Chittenden.

<p>Assumpsit. Trial by jury at the September Term, 1896, Washington County, Taft, J. presiding. Verdict and judgment for the plaintiffs for $4.88. The plaintiffs excepted.</p>

<p>Evidence — Collateral Instances.</p> <p>In an action against a municipality for so negligently constructing its sewer that the gas escaped therefrom into the plaintiff’s house, making the plaintiff and his family sick, the defendant is not entitled to show that gas had not been detected in neighboring houses connected with the same sewer either by odor or by any injurious effect upon the health of the occupants.</p>

Case, tinder Y. S. 4507, for damages to the plaintiff from an injury received by her husband while intoxicated by liquor furnished by the defendant. Trial by jury at the September Term, 1897, Rutland County, Munson, J., presiding. Yerdict and judgment for the defendant. The plaintiff excepted.

Assumpsit upon a policy of life insurance. Heard upon an agreed case at the June Term, 1897, Caledonia County, Taft, J., presiding. Judgment for the defendant. The plaintiff excepted. The facts are sufficiently stated in the opinion except in relation to the procuring of other insurance and obtaining possession of the policy. Shortly after signing this application the intestate applied for insurance in another company, stating that he had no insurance.

Case. Plea, general issue. Trial by jury, September Term, 1897, Chittenden County, Tajt, J., presiding-. Verdict and judgment for the defendant. The plaintiff excepted. The negligence of the parents, if any, was not imputable to the child. Robinson y. Cone, 22 Vt. 213; Holly y. Boston Cas Light Co., 8 Gray 123; Daley y. R. R. Co., 26 Conn. 591: 68 Am. Dec. 413; Whirley v. Whiteman, 1 Head, 610: Shear-man & Redfield, Negl. § § 77, 78; 2 Thomp. Trials, § 1687; 2 Thomp.

Assumpsit. Tried by jury, February Term, 1898, Orleans County, Ross, C. J., presiding. Yerdict and judgment for tbe plaintiff for the full amount claimed. The defendant excepted. Petition for new trial to the May Term, 1898.

Indictment for assault with intent to murder. Trial by jury at the December Term, 1897, Windsor County, 7ylerr J., presiding. Verdict, guilty. The respondent excepted. The following is a verbatim copy of the offer referred to in the opinion under point (1): “The Court: Mr. Enright, do you expect to show any facts that have not been testified to by Mrs. Lawrence? Mr.Enright: Only by the boy, Clifton, about that. The Court: We cannot give a divorce in this case.

Heard oa a referee’s report and defendant’s exceptions thereto, at the September Term, 1897, Franklin County, Munson, J., presiding. The intestate and the plaintiff were brother and sister. In 1881 the brother went to live with the sister and so continued until his death in 1895. There was no express contract between them at any time relating to the board, care and services furnished and performed by the sister.

Heard on demurrer to the amended declaration at the December Term, 1897, Windsor County, Tyler, J., presiding.

Trover. Plea, general issue. Trial by jury, March Term, 1898, Windham County, Taft, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The plaintiff and defendant were divorced in March 1897, when a decree for alimony was made giving the furniture in question to the plaintiff, In April, 1897, the defendant carried it away, and upon trial claimed that the plaintiff had given it to him since the decree.

Chancery. For hearing on pleadings, master’s report and defendant’s exceptions thereto, at the December Term, 1897, Caledonia County, before Thompson, Chancellor. Proforma decree that the defendant’s exceptions be overruled and the orators recover of the defendant bank $5576.49, and interest from December 28, 1894, with costs, and that as to the other defendants the bill be dismissed. Both parties appealed.

Replevin of a stock of hardware. Tried by court, December Term, 1897, Caledonia County, Thompson, J. presiding. Pro-forma judgment for the defendant. The plaintiff excepted. The plaintiff is assignee in insolvency of Lawson Brothers, and the defendant a deputy sheriff. The mortgage was framed to include such goods as might be purchased to replace those sold from the mortgaged stock, and contained a promise on the part of the mortgagors to keep the stock good.

Assumpsit. The cause was referred, with consent of parties, at the September Term, 1896, Rutland County. At the September Term, 1897, Munson, J., presiding, the plaintiff moved a revocation of the order of reference. The plaintiff had the right to revoke as a matter of law. Jeffers v. Hazen, 69 Yt. 456; Lazell v. Houghton, 32 Yt. 579; Rice v. Clark, 8 Yt. 104. The revision of 1894 was not intended to change the law in this respect.

Action upon á policy of fire insurance. Heard upon an agreed statement at the February Term, 1898, Orleans County, Ross, C. J., presiding. Judgment for the plaintiff for the amount claimed. The defendant excepted.

Chancery. Heard upon pleadings and stipulation at the September Term, 1897, Washington County, before Taft, Chancellor, who dismissed the bill with costs. The oratrix appealed. The stipulation fixed the amounts recoverable under the different policies, with the date from which interest should be computed, subject to diminution by payments already made. The mortgage and notes mentioned in the mandate represented the avails of policy No. 4,967.

Book Account. Plea, discharge in insolvency. Replication and traverse. Trial by the court at the September Term, 1897, Chittenden County, Taft, J., presiding. The disposition of the case is stated in the opinion. The defendant excepted.

<p>When Exception Need not Be Negatived in a Complaint — Validity of City Charter — Excessive License Fee Amounting to a Tax — Authority to License — A Police not a Taxing Power.</p> <p>A complaint for violation of a city ordinance, requiring a license fee from peddlers of certain kinds of produce, need not negative an exception made by the general statutes in favor of a person who vends the products of his own land.</p> <p>A city charter that vests the administration of all municipal affairs in a mayor and board of aldermen, to be called the city council, is not invalid for omitting to specify whether the council must act by a majority or may act by a majority of a quorum.</p> <p>A municipality, endowed by the legislature with authority to regulate, restrain and license peddlers, and receive money for such licenses, is not thereby authorized to exact license fees for the purpose of revenue, but only as incident to the exercise of the police power, and a license fee of twenty-five dollars is so largely in excess of any reasonable charge for granting and issuing the license as to amouut to a tax.</p>

<p>Case for negligently driving over the plaintiff’s child. Trial by jury, at the December Term, 1897, Caledonia County, Thompson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.</p> <p>The testimony of Mrs. Angelí, referred to in the opinion, was that when she found her own child his clothing was soiled with road dust and stained with blood.</p>

<p>Liability for Wanton or Negligent Act — Proximate and Remote Causes— Damages.</p> <p>Whether an act was negligent may depend upon whether it could have been foreseen that damage would result, but when negligence is established it imposes liability for all the injurious consequences that flow therefrom, whatever they are, until the intervention of some diverting .force that makes the injury its own, or until the force set in motion by the negligent act has so far spent itself as to be too small for the law's notice. •</p> <p>One who by his wantonness or negligence sets in motion a force which, without the intervention of any independent agency, results in damage to another, is liable, whether the damage could have been foreseen or not.</p> <p>In questions of this character, proximity and remoteness relate to the connection of cause and effect, not to the intervention of space or time.</p> <p>The defendant wantonly shot a dog lying peaceably near his owner’s house, •knowing that the owner’s wife and children were alone within; whereupon the wounded dog sprang up and rushed into the house knocking down and injuring the wife. Held, that the defendant was liable to the wife, and could not maintain that he owed her no legal duty nor that the negligence was too remote.</p>

<p>Officer of Corporation— When his Knowledge is Imputable to his Principal —Bank not Chargeable with Notice of Conditions Attaching to Paper of its Officers — Debts Provable in Insolvency.</p> <p>Knowledge acquired by the officers or agents of a corporation while acting not for the corporation but for themselves, is not imputable to their principal.</p> <p>This rule applies to controversies growing out of discounts of bills and notes by banks for their own officers. In such cases the bank is not affected by notice of any conditions upon which the paper was given.</p> <p>A,director of the plaintiff signed as maker an accommodation note payable to his brother, the cashier of the plaintiff, who kept the note without using it for nearly a year, when, both director and cashier having become insolvent, the cashier, with the consent of the director, inventoried it as an asset of the bank and gave himself credit for it in his loan account, signing a memorandum upon the note that it was for him to pay. The bank had no notice of the insolvency of either, but the next month both were adjudged insolvent. Held, that the note was provable against the director’s estate.</p> <p>It is for the court of insolvency to adjust the interest upon claims so as to secure equality among creditors.</p>

Upon the report of a referee at the September Term, 1897, Rutland County, Ross, C. J., presiding, a pro-forma judgment was rendered for the plaintiff, to which the defendant excepted.

Chancery. Heard upon pleadings and master’s report at the December Term, 1897, Addison County, before Munson, Chancellor, whose decree limited the recovery against the defendant Tupper to one-fifth of four hundred dollars. The orator appealed. cited Kidder y. Rixford, 16 Vt. 169; Sanborn y. Braley, 47 Vt. 170; Farrand y. Gleason, 56 Vt. 633; Webb v. Laird, 59 Vt. 108: 62 Vt. 448; Lamson y. Worcester, 58 Vt. 381; 4 Kent’s Com. 370; 1 Wash.

<p> Municipal Liability for Acts of Contractors and. Officers. </p> <p>The defendant city had a contract with a third party to lay the city’s water pipes, the work to be done to the approval of its superintendent. In laying a pipe the contractor, by direction of the superintendent, cut into the plaintiff’s private drain under the public street and embedded the pipe therein, causing the sewage to set back into the plaintiffs premises to his damage. Held, that the city was responsible for the act of the superintendent, who in giving the direction was acting within the scope of the contract.</p> <p>Whether the city’s right to lay the pipe was paramount to the plaintiffs right to maintain his drain, is a question not raised by the record.</p>

General Assumpsit. Plea, the general issue. Trial by jury at the September Term, 1897, Chittenden County, Rowell, J., presiding. Verdict ordered and judgment thereon rendered for the plaintiff. The defendant excepted. The action was brought to recover money paid by the plaintiff to the defendant’s treasurer as taxes upon the list of 1896.

<p>V S. 1667 — Failing to enter appeal through mistake of law.</p> <p>V. S. 1667, giving the county court discretionary power to allow a party to enter his appeal when he has been prevented from doing so by fraud, accident or mistake, applies to a mistake of law as well as to one of fact, e. g., where the appellant fails to enter his appeal through ignorance of a change in the law governing the time within which appeals must be entered.</p>

Complaint for illegal fishing. Heard on demurrer to the complaint in the city court of Montpelier, January 6, 1898. The statute is unconstitutional for it amounts to a taking of private property for public use without compensation.

Ejectment. Pleas, not guilty and a disclaimer. Trial by jury at the September Term, 1897, Franklin County, Start, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted.

Declaration, the common courts in assumpsit. Plea, the general issue and notice. Heard upon the defendant’s motion to refer the-case under Y, S. 1437, at the December Term, 1897, Bennington County, Taft, J., presiding. Motion granted. The plaintiff excepted, and the cause was passed to this court for decision before trial should be had before the referee. It is unimportant that the insolvency statute has been enacted since the adoption of the constitution.

Debt on Judgment. Trial by court at the September Term, 1896, Washington County, 7aft, J., presiding. The testimony offered by the defendant was excluded pro forma; the defendant excepted and the cause was passed to this court before final judgment. cited Thompson v. Whitman, 18 Wall. 457; Starbuck v. Murray, 5 Wend. 156; Aldrich v. Kinney, 4 Conn. 380; Christmas v. Russell, 5 Wall. 290; Mackay v. Gordon, 34 N. J. L. 286; Price y. Ward, 1 Dutch 225; Woulin y. Ins.