Volume 72 — Vermont Reports

<p>Taxation — Exemption of capital of corporation exempts shares of stock. If a town votes to exempt the capital of a manufacturing corporation from taxation under the provisions of Y. S. 365, the shares of its stockholders are thereby exempted.</p> <p>Taxation — Shares exempt by municipal vote deducted from offset. "Under Y. S. 411, providing for the deduction from any offset claimed by a taxpayer of the amount of stock and bonds held by him “exempt from taxation by the laws of this State”, shares of stock exempt by virtue of a municipal vote authorized by a law of the State must be deducted.</p>

Case for false warranty in the sale of a bicycle. Plea, general issue. Windsor County, May Term, 1898, Ross, C. J. presiding. Trial by jury. Yerdict directed for the defendant. Judgment on verdict. Plaintiff excepted. The plaintiff purchased of the defendant a bicycle and took from him at the time of the sale the following written instrument : “Terms Cash. Ludlow, Yt., July 27, 1896.

Appeal by land owners from the decision of commissioners appointed on the petition of the Littleton Bridge Company under the provisions of No. 265, Acts of 1896, incorporating the petitioner. Caledonia County, December Term, 1898, Stcurt, J. presiding. Judgment on the report of commissioners, appointed by the County Court, in fayor of the petitionees for eighty-five dollars, with costs to the petitioner. Petitionees excepted.

Assumpsit on a guaranty. Plea, general issue with notice. Trial by court. Rutland County, March Term, 1898, Start, J.; presiding. Judgment for defendant. Plaintiff excepted. Prior to October 31, 1895, the plaintiff had sold beef to one JudsonH. Grant. On that day the plaintiff and Grant settled, and their accounts were closed and paid up to that date, and thereupon the defendant executed and delivered to the plaintiff' the following writing: Rutland, Yt., October 31, 1895.

<p>Oral testimony in connection with a written instrument — Witnessed note.— Oral testimony is admissible to show that a note, purporting to be witnessed, was not a witnessed note when delivered. The rule with regard to oral evidence to vary a written instrument has no application when the legal existence or binding force of the instrument is in question.</p> <p>New trial — Surprise■—One party misled by the other. — Defendant misled the plaintiff as to his defence, which when made was a surprise to the plaintiff, and could be met only by a witness first made known to the plaintiff by the defendant's testimony. Plaintiff having failed on a motion for a continuance that he might improve this witness, and an affidavit of the witness being introduced showing that her testimony would meet the defence, a new trial was on the petition of the plaintiff granted.</p>

Chancery. Foreclosure of mortgage. Caledonia County, December Term, 1899, Thompson, Chancellor. Decree for oratrix. Defendants appealed. The case was heard on petition, answer, report of special master, and exceptions thereto. The facts are stated in the opinion.

Action on a bond given to the Court of Insolvency. ■Chittenden County, March Term, 1898. Thompson, J., presid ing. Judgment for the prosecutors. Defendants excepted. One Arthur W. Huntley was adjudged to be an insolvent debtor by the Court of Insolvency for the District of Chitten■dent, and the defendant, Alexander, and one Nichols, were duly elected assignees of the estate in insolvency of said Huntley, .and acted as such.

Chancery. Addison County, June Term, 1898. Thonvpson, Chancellor. Decree strictly pro forma in accordance with the prayer of the bill. Defendant appealed. The oratrix brought her bill to enjoin the defendant from the publication, by production in court, of certain letters written by her and in his- possession. The case was heard upon bill, answer and an agreed statement of facts. The opinion states the case thus presented so far as it was material to the decision.

Seizure of intoxicating liquor under statutory warrant. John Jabbour was apprehended and brought before the court as owner and keeper. City Court of Barre, November é, 1898, Barney, J. Judgment condemning the liquor seized and holding Jabbour for the costs of the proceedings. Jabbour excepted.

Action on tbe case — Rutland County, September Term, 1898. Thompson, J., presiding. Plea, general issue. Trial by jury. Terdict for plaintiff. Defendant excepted. The plaintiff sought to recover damages on account of the burning of certain of his buildings. The case is sufficiently stated in the opinion.

Indictment for perjury. Washington County, March Term, 1899, Thompson, J., presiding. The respondent pleaded in bar of the indictment that the alleged perjury consisted of testimony given by him in a former trial upon an indictment which was insufficient, and ■ was after-wards quashed for insufficiency. To this plea the State filed a demurrer which was sustained, and the plea adjudged insufficient.

Chancery. Heard on bill, demurrers and plea, Orleans County,September Term 1898,Chancellor. By agreement of counsel and without hearing it was adjudged and decreed pro forma that the demurrers and plea be sustained and the bill dismissed. The orators appealed. The case is stated in the opinion.

<p>Ineobmation for adultery. Windsor County, June Term, 1899, Start, J., presiding. Tlie respondent demurred. Demurrer overruled, and information adjudged sufficient. Respondent excepted.</p>

Assumpsit. Plea, general issue. Trial by referee. Hearing on report, Washington county, March Term, 1899, Thompson, J., presiding. Judgment for the plaintiff. Defendants excepted. The referee found the defendant indebted to the plaintiff in the sum of $247.51. One of the items in dispute was a credit of $125, which the defendants asked on account of a monument that they claimed to have sold to the plaintiff.

Information for a breach of the divorce law. Windsor County, June Term, 1899, Start, J., presiding. Respondent demurred. Demurrer overruled pro forma. Respondent excepted.

Debt on a judgment of a Maine court. No pleadings were filed by the defendant. Washington County, March Term, 1899. Thompson, J., presiding. Trial by jury. Verdict and judgment for the defendant. The plaintiff excepted. An authenticated copy of the record of the judgment sued on was introduced in evidence. It showed personal service on the defendant, August 18,1891.

Petition for Mandamus brought to the Supreme Court at its October Term, 1899. Formal answer waived by the petitionee, and case submitted on a stipulation that the disallowances of fees under consideration were all made as matters of law and not otherwise, and that the petitionee should be considered as denying the relief asked for on the facts set forth in the bill. The facts are stated in the opinion.

Special Assumpsit on a school district order. Pleas, the general issue, with notice of special matter, and the Statute of Limitations. Trial by court. Orleans county, March Term, 1899, Start, J., presiding. Judgment for the plaintiffs for the amount found due upon the order. Defendant excepted. The order sued on read as follows : “ Westmore, Vt., Feb. 21, 1881. To the treasurer of school district No. 2, in the town of Westmore.

<p>Pauper law — Residence of married woman — The town in which a husband has acquired a three years’ residence is chargeable with the support of his wife, who comes to want while she is living apart' from him in another town, notwithstanding the mere fact of the separation of husband and wife. The husband’s residence determines that of the wife.</p> <p>Notice under V. S. 3172 — Notice in such case under V. S. 3172, which designates the person to whom assistance is furnished simply as M. L., without describing her as the wife of A. L., her husband, is sufficient.</p> <p>Notice under V. S. 3172 — Notice that the assisted person is poor and in need of assistance, is a sufficient notice of the condition of such person. The cause of such condition, in this case sickness, is immaterial.</p> <p>Contemporaneous intention as to residence — Inadequacy of charge — In this case the determination of the residence of the husband required the application of the doctrine of contemporaneous intention, and the charge upon this point being deemed inadequate, judgment was reversed.</p>

Bill in chancery to enjoin the defendants from selling on execution real estate of the orator claimed by him as a homestead. Heard on pleadings and the report of a special master, Orange County, December Term, 1898, Tyler, Chancellor. Decree in accordance with the prayer of the bill. The defendants appealed.

Information charging the respondent with robbery, being unarmed. Trial by jury, Chittenden County, March Term, 1899, Taft, C. «T.j presiding. Yerdict and judgment of guilty. Eespondent- excepted.

Action on the oase for negligence, brought under Y. S. 2451 and 2452, by the plaintiff as administrator of Michael Kennedy, deceased. Plea, general issue. Trial by jury, Rutland County, March Term, 1899, Watson, J., presiding. Yerdict .and judgment for the plaintiff. The defendant excepted. The decedent while at work upon repairs to a pulp digester in the defendant’s mill received injuries which caused his death within two or three days thereafter.

Chancery. Heard on demurrer to the bill. Windsor County, June Term, 1899, Start, Chancellor. Demurrer sustained, and bill adjudged insufficient and dismissed. The orators appealed. The case is stated in the opinion.

Action on the case to recover damages resulting from the death of the plaintiff’s intestate, Edward Noque. Plea, general issue. Windham County, March Term, 1898, Taft, J., presiding. Trial by jury. Yerdict and judgment for the plaintiff. The defendant excepted.

Assumpsit. Plea, general issue. Trial by jury. Chittenden County, March Term, 1899, Taft, J., presiding. Yerdict and judgment for the defendants. The plaintiff excepted. The case is stated in the opinion.

Special assumpsit. Heard on demurrer. Caledonia County, June Term, 1899, Thompson, J., presiding. Demurrer overruled strictly proforma and without hearing, and declaration adjudged sufficient. The defendant excepted.

Complaint for selling, furnishing and giving away intoxicating liquor contrary to law. Trial by jury. Bennington County, June Term, 1899, Munson, J., presiding. Verdict, guilty of one offense. Judgment on verdict. The respondent excepted. The specification-of the state charged the respondent with unlawful sales of intoxicating liquor at his dwelling house. One of the days specified was July 4, 1896.

Action oe debt. Heard on demurrer to the declaration. Caledonia County, June Term, 1899, Thompson, J., presiding. Demurrer overruled pro forma and without hearing, and declaration adjudged sufficient. The defendant excepted.

<p>V. 8. 4460 — Fermented cider — By Y. S. 4460 fermented cider is placedin the category of intoxicating liquors and the general prohibition of the sale of such liquors except by an authorized agent applies to it.</p> <p>V, S. 4468 — Unfermented cider — With reference to sales, the word “cider” as used in V. S. 4463, which prohibits the sale of cider in a place of public resort or to an habitual drunkard, and otherwise permits it, means unfermented cider.</p> <p>V■ S. 4465 — Intoxicating liquor — Cidei—In Y. S. 4465, which prescribes the penalty for selling, furnishing or giving away, or owning, keeping or possessing with the intent to sell, furnish or give away “intoxicating liquor or cider in violation of law,” fermented cider is included under the generic name of intoxicating liquor, and the word “cider ” means unfermented cider.</p> <p>Illegal sales of fermented cider — Allegations and proof — In this case the concession by the respondent that he had made within three years eleven sales of fermented cider, showed him guilty of eleven offenses under a complaint charging him in the common statutory form with selling intoxicating liquor contrary to law.</p>

The plaintiff declared in general assumpsit. The defendant’s pleas were, the general issue, payment, accord and satisfaction, the statute of limitations and offset. Franklin County, September Term, 1899, Start, J., presiding. The court, on motion of the defendant, and against the objection of the plaintiff, referred the cause. The plaintiff excepted.

Assumpsit. Plea, general issue. Trial by court on an agreed statement of facts. Washington County, March Term, 1899. Thompson, J., presiding. Judgment for the plaintiff, proforma and without hearing, for the sum of three hundred dollars. The defendant excepted. The case is stated in the opinion.

<p>Indictment for selling, furnishing and giving away intoxicating liquor contrary to law. "Washington County, September •Term, 1899, Thompson, J., presiding. Trial by jury. Yerdict, guilty. Judgment on verdict. Exceptions by respondent.</p> <p>The only exception was to the instruction recited below. The testimony to which the instruction was applicable was given by the respondent and sufficiently appears from the opinion.</p> <p>The court instructed the jury that while the respondent had a right to keep wine and ale to use himself, or for the use of his wife, mother and children, and for members of his private family, that if they found that he kept such wine and ale with the intent to furnish the same to his boarders for hire — as testified by the respondent — such keeping would be in violation of law, and the jury would be warranted in returning a verdict of guilty.</p>

Assumpsit to recover the purchase price of fifty gallons of methyl alcohol. Oity Court of Montpelier, January 30, 1900, SmiUe, J. Trial by the court, and judgment for the plaintiff. Defendant excepted. The defence was that methyl alcohol is intoxicating liquor within the meaning of Y. S. Chapter 187, and that therefore no recovery could be had for the purchase price. The facts stated in the opinion were found by the trial court.

Indictment for selling and furnishing intoxicating liquor contrary to law. Washington County, March Term, 1899, Thompson, J., presiding. Plea, not guilty. Trial by jury. Yerdict, guilty. Judgment on verdict. Exceptions by respondent.

<p>Action on the case in which the plaintiff sought to recover for injuries received by him by being run into by a train of the defendant while he was attempting to drive over the track of the defendant at a highway crossing. Plea, general issue. Orleans County, March Term, 1899, Start, J., presiding. Trial by jury. Verdict directed for the defendant. Judgment on verdict. The plaintiff excepted.</p> <p>The case, so far as it was material to the decision, is stated in the opinion.</p>

Assumpsit. Bennington County, June Term, 1898, Rowell, J., presiding. Trial by court. Judgment for the plaintiff against the principal defendant, and against the trustee on facts found and reported by a commissioner. The trustee excepted, The ease is stated in the opinion.

<p>Pauper law — Residence—If a town keeps one of its paupers in another town the pauper is a resident of the supporting town and the atmosphere of the supporting town, in legal effect, envelops the pauper.</p> <p>Pauper law — Education of pauper children by the town of their residence — A town in which paupers of school age reside, is alone chargeable with the duty of providing for their education, although they are kept in another town.</p> <p>Public Schools — Instruction of paupers — V. S. 688, 689 — The school directors of a town in which paupers of school age from another town are kept, may receive them into the schools under such terms and restrictions as they deem best, and the school directors of the town liable for the support of such paupers may provide for their instruction in the public schools of the town in which they are kept, and may pay for such instruction.</p>

<p>Railroads — Jurisdiction of commissioners under V. S. 3860 and 3864 — Commissioners under V. S. 3860 and 3864 appointed on the petition of one railroad company to fix upon the manner of crossings over and connections with the railroad of another company, and the amount of compensation to be made therefor, have not jurisdiction to establish a line for the petitioner which would involve the acquisition of a right of way by the exercise of the right of eminent domain.</p> <p>Eminent domain — The establishment for one railroad company of a line about 1200 feet in length over and along lands acquired and actually used and occupied by another railroad company for the purposes of its incorporation and not connecting with the line of such other company, would involve the taking of a right of way by the exercise of the right of eminent domain.</p> <p>Eminent domain — Property already taken for a public use — Property already taken for a public use cannot be taken for another public use without legislative authority expressly given or necessarily implied.</p> <p>Same — Authority given in general terms to take by the right of eminent domain is not sufficient to authorize the taking, for an inconsistent purpose, of property already devoted to a public use, and necessary for the purpose to which it is devoted.</p> <p>Same — Implied authority to take — Implied authority to take can only arise from the language of the legislative act, or from facts making such taking necessary to the beneficial enjoyment and efficient exercise of rights and privileges granted.</p> <p>Same — Implication from necessity — The necessity which raises an implication of authority to take, for a public use, property already taken for another public use, must arise from the nature of things over which the corporation desiring to take has no control, and not from a necessity created by such corporation for its convenience or economy.</p> <p>Same — When such implied authority arises from necessity, the taking can be only to the extent of the necessity.</p> <p>Jurisdiction to award a connection in lieu of a crossing — The petitioner having, under the principles of law applicable to the facts of this case, neither express nor implied authority to acquire a right of way and establish an independent line through the petitionee’s yard, commissioners appointed under V. S. 3860 and 3864 had jurisdiction to award a connection and not a crossing.</p> <p>Hosts — It not appearing that any fault of the petitionee necessitated the proceedings, and the petitioner having failed in its main contention, the petitionee was allowed to recover its costs, and the petitioner ordered to pay the commissioners’ fees.</p>

Assumpsit. Plea, general issue. Franklin County, September Term, 1899, Start, J., presiding. Trial by court. Judgment for the plaintiff against the defendant, E. A. Button. The defendant, E. A. Button, excepted. , The case is stated in the opinion.

Action on the case in two counts brought by Reuben Clark, Administrator of Sarah Clark’s estate, to recover for an injury to his intestate which resulted in her death. One count was founded on Y. S. 2117, and the other on Y. S. 2151 and 2152. Plea, general issue. Trial by jury. Bennington County, June Term, 1899, Mwnson, J., presiding. Yerdict and judgment for the plaintiff. The defendants excepted.

Complaint under Y. S. 4826, charging the respondent with keeping three dogs, more than eight weeks old, not registered, numbered, described and licensed according to law. Franklin County, January Term, 1900, Tyler J., presiding. Yerdict, guilty. Judgment on verdict. The respondent excepted.

<p>Evidence — Objection too late — If a question calls for inadmissible evidence, and the answer is responsive to the question, an objection, made after the answer is given, is too late, and is unavailing.</p> <p>Evidence — Unanswered question — It is immaterial whether a question is proper or improper, if it is not answered. .</p> <p>Evidence — Burglary—Identification of property — A witness in a burglary case having testified that before the burglary he had compared the numbers on certain watches, claimed to have been burglariously taken, with the numbers in an invoice of the same, and found them to be correctly given in the invoice, such invoice was admissible in evidence in connection with the oral testimony referring to it, upon the question of the identity of the watches claimed to have been so taken with certain watches traced into the possession of the respondent and bearing the same numbers.</p> <p>Evidence — Copies of lost writings — Invoices, admissible in evidence, having been found by the court to be lost, copies thereof were properly received.</p> <p>Burglary — Circumstantial evidence with evidence of the corpus delicti — Evidence sufficient for submission to the jury — Evidence tending to show that certain watches claimed to have been burglariously taken were kept in a hiding-place, and that the respondent knew of their hiding-place, that shortly after the burglary he had some of the watches in his possession, and that he disposed of a part thereof at a price not more than half their market value, in connection with evidence tending to establish the corpus delicti, made a case proper to be submitted to the jury, and a motion to have a verdict directed in the respondent’s favor was properly overruled.</p> <p>Evidence — Possession of stolen property to be considered with other relevant facts — The recent unexplained possession of stolen property, when that fact is shown, and all the attending circumstances and other relevant facts in evidence, must be considered together by the jury in determining the guilt or innocence of a respondent charged with the felonious taking of the stolen property; and a charge which permits them to determine the question upon the evidence of such possession, considered apart from the evidence of such circumstances and facts, is erroneous.</p> <p>Evidence of good character — Evidence of good character tends to rebut the presumption of guilt consequent upon the recent possession of stolen goods.</p> <p>Evidence — Circumstances attending possession of stolen property — The manner in which-one keeps, uses and exhibits stolen property in his possession, has a bearing upon the effect to be given to its possession,</p> <p>Inconsistent instructions — Error in one part of a charge is not cured by a proper instruction on the same subject in a later part of the charge, when the later instruction is not given to supersede or correct the former, and the jury are, in effect, left to follow either.</p> <p>Evidence — Connected facts — Evidence of the recent possession by a respondent of a part of the property stolen at a certain time and place tends to connect him with the theft of other property stolen at the same time and place.</p>

Action of assumpsit against Martin. H. Gibson and John Gibson, partners under the firm name of the Ryegate Brick Company. Caledonia County, June Term, 1899, Watson, J., presiding. Heard on referee’s report and exceptions thereto. Judgment proforma for the plaintiff to recover $2441.03 and interest from November 15, 1894, with costs. The defendants excepted. The case is stated in the opinion.

Case for negligence. Heard on demurrer to the declaration. Caledonia County, June Term, 1899, Thompson, J., presiding. •Demurrer sustained pro forma and without hearing. Declaration adjudged insufficient and judgment ‘for the defendant. The plaintiff excepted. The case is stated in the opinion.

Special assumpsit on a contract to marry. Plea, general issue. Trial by jury. Orleans County, March Term, 1899, Start, J., presiding. Yerdict and judgment for the plaintiff. The defendant excepted. The case is stated in the opinion.

C. Lewis. The plaintiff declared specially on two promissory notes and in general assumpsit. Pleas, the general issue, payment, the statute of limitations and offset. Trial by jury, Washington County, September Term; 1897, Tyler, J., presiding. Yerdict and judgment for the plaintiff. The plaintiff excepted.

Information for burglary. Trial by jury, Franklin County,, March Term, 1899, Munson, J., presiding. Yerdict, guilty _ Judgment on verdict. The respondent excepted. The information charged the respondent with the burglary of a bank in Nichford. It appeared that the bank was burglariously entered between the hours of two and three in the morning of Sunday, November 6, 1898.

Action to recover for tbe breach of a writing obligatory, executed by the defendant, Myron F. Chase, as principal, and by the other defendants, Arthur E. Ellis, P. J. Chase, Isabelle Chase and Morton Marvin, as sureties, and delivered to. the plaintiff. Heard upon the report of a referee, Washington County, September Term, 1899, Watson, J., presiding. Judgment pro forma and without hearing was rendered for the plaintiff on the report. The defendants excepted.

Case for negligence. Plea, tbe general issue. Trial by jury, Rutland County, September Term, 1899, Taft, J., presiding. Yerdict and judgment for tbe plaintiff. Tbe defendant excepted. At the close of the evidence the defendant moved that the court direct a verdict in its favor, on the ground that there was no evidence in the case entitling the plaintiff to recover.

Assumpsit. Plea, the general issue. Trial by jury, Wind-ham County, March Term, 1899, Tyler, J., presiding. Yerdict and judgment for the defendant. The plaintiffs excepted. The verdict was directed by the court on the motion of the defendant set out in the opinion. The plaintiffs were brokers, and the defendant, at the time of the transactions in question,was vested with the legal title of a fund bequeathed to him by his father in trust.

Chancery. Heard upon pleadings, master’s report, orators exceptions to tbe report and a motion to recommit the same, at the June Term, 1899, Bennington County, before Munson, Chancellor. Decree fro forma overruling the orator’s exceptions and motion and dismissing the bill with costs to the defendant. The orator appealed.

Action oe trover. Trial by court, Lamoille County, June Term, 1900, Watson, J., presiding. Judgment for the plaintiff on facts found. Tbe defendant excepted. Before the introduction of any evidence in the case, question was made as to whether Assistant Judge Morse, who sat in the case, was not disqualified on the ground stated in the opinion.

Case for personal injuries received by the plaintiff from a moving train while he was crossing the defendant’s railroad track at grade at a highway crossing in Bethel. Plea, the general issue. Trial by jury, Caledonia County, June Term, 1897 Rowell, J., presiding. Yerdict for tbe defendant directed on motion. Judgment on verdict. The plaintiff excepted.

The Trustees of the Rutland Hospital and the Rutland Missionary Association each claimed the same property by virtue of the. clauses in question. Trial by court, Rutland County, March Term, 1899, Watson, J., presiding. Judgment on facts found in favor of the Trustees of the Hospital. The Rutland Missionary Association excepted.

Bill of complaint brought to the Court of Chancery for Caledonia County by the State’s Attorney for said County. The defendants, Ernest Massey and Henry Massey, did not appear, and as to them the bill was taken as confessed on such default. The defendants, B. G. Howe and the First National Bank of St. Johnsbury, filed their answer and therein incorporated their demurrers.

Bill oe oomplaint brought to the Court of Chancery for Caledonia County by the State’s Attorney for said County. All of the defendants answered and incorporated a demurrer into their respective answers. Before any orders were made in the case the defendants moved for a trial by jury upon the issues of fact.

Indictment by virtue of Y. S. 2703 and 2704. Those sections were not, however, in terms, referred to in the indictment. Heard on demurrer to the indictment, Washington County, September Term, 1899, Watson, J., presiding. The demurrer was overruled and the indictment adjudged sufficient. The respondent excepted, but, without prejudice to his exception, pleaded guilty. Judgment rendered on plea, sentence passed, and mittimus issued.

Briggs, deceased. To the plaintiff’s declaration a general demurrer was filed. Demurrer sustained proforma and without hearing, Chittenden County, September Term, 1899, Rowell, J., presiding. The plaintiff excepted. The defendant claimed as grounds of demurrer, that the liability arising on the statute of South Dakota in question was so far penal that it could not be enforced in this State, and that the right of action to enforce it did not survive;

Chancery. Heard on demurrer to the orators’ bill. Bennington County, June Term, 1899, before Mwnson, Chancellor, who rendered a decree sustaining the demurrer and dismissing tbe bill. The orators appealed. The bill was brought by Elenora D. Curtis and James D. Curtis, her husband, against John B. Simpson and Adelbert E. Simpson, and John T. ShurtlefE, administrator of the estate of Martha Simpson, deceased.

Assumpsit on a promissory note. The defendant pleaded the general issue, and gave notice of special matter of defence. Trial by jury, Chittenden County, September Term, 1899, Rowell, J., presiding. Yerdict directed for the plaintiff. Judgment on verdict. The defendant excepted. The note in suit was for $22.50, signed by the defendant and payable to the order ,of the International Seed Company.

Chancery. Heard on pleadings, master’s report and exceptions thereto. Chittenden County, March Term, 1899, before Taft, Chancellor, who rendered a decree dismissing the bill. The orators appealed. The question was as to the sufficiency of the evidence to support the master’s findings.

Case foe negligence. Plea, the general issue. Trial by jury, Franklin County, March Term, 1899, Munson, J., presiding. Yerdict and judgment for the defendant. Tlie plaintiff excepted.

Chancery. Heard on pleadings and report of a special master, Rutland County, March Term, 1899, before Watson y Chancellor. Decree for the orator. The defendant appealed.

<p>Proceeding for condemnation of certain liquors taken from the possession of the claimant upon search and seizure proceedings in November, 1898. Trial by Court, Windsor County, December Term, 1898, Taft, J., presiding. Judgment that the liquors be forfeited and that the claimant pay the costs of the proceeding. The claimant excepted.</p>

Soire eaoias brought by the plaintiff against the defendants on their liability as bail in an action of tort in which the plaintiff recovered final judgment in the Supreme Court for Washington County, against one Omer Miller and took out execution thereon. This action was brought to the Supreme Court for Washington County and was heard on the report of a referee appointed to find and report the facts.

Chancery. Heard at the September Term, 1899, Eranklin County, before Munson, Chancellor. Decree for the orators. The decree was filed January 16,1900, and a motion for an appeal was filed on behalf of the defendants, February 10, 1900. The allowance of the appeal was filed April 16, 1900. In the Supreme Court the orators moved to dismiss the appeal.

Action on the case brought by Richard I. Davis for the alleged seduction of his minor daughter. Bennington County. At the June Term, 1899, the death of the plaintiff was suggested,' and subsequently the administratrix of his estate entered to prosecute. At the December Term, 1899, a hearing was had on a motion to dismiss, Start, J., presiding. The motion was sustained and the action dismissed. The plaintiff excepted.

Indictment for breaking from a lock-up in tbe Tillage of Northfield. Tbe respondent filed a general demurrer. Demurrer overruled pro forma and without hearing, and indictment adjudged sufficient, Washington County, March Term, 1899, Thompson, J., presiding. The respondent excepted, and the cause was passed to the Supreme Court before final judgment.

Cask to recover for injuries alleged to have been sustained by the plaintiff, by reason of the fact that one of the defendant’s cars, with which the plaintiff had to do as an employee of the defendant, was equipped with side ladders. Plea, the general issue. Trial by jury, Orleans County, September Term, 1899, Thompson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

<p>Appeal from the decision of commissioners on the estate of Ormond W. Fletcher prosecuted by George I. Fletcher, executor of the will of Sarah A. Fletcher. The declaration was in assumpsit. The general issue, payment, and other pleas were filed. Trial by jury, Windsor County, June Term, 1899, Start, J., presiding. Yerdict and judgment for the plaintiff. The defendant excepted.</p> <p>The action was brought to recover $246, claimed to have been received by Ormond W. Fletcher, as bailee, for the said Sarah in her life-time, and $183.88 claimed to have been received by him, in a like capacity, after her death for the executor of her estate. The verdict and judgment were for the amount of both sums with interest from October 1, 1898, with costs.</p> <p>The witness Herrick, referred to in the opinion, was town treasurer of the Town of Chester during a time in which it was claimed that said Ormond W. Fletcher was loaning money to that town. He was called by the defendant.</p> <p>A petition for a new trial brought by the defendant, and based on the ground of newly discovered evidence, was heard with the case on the exceptions.</p> <p>The newly discovered evidence consisted of a series of checks and a memorandum making up the sum of $245, and tending to show the payment to the said Sarah A. Fletcher, in her life time, of the claim of $245, included in the entire claim sued on.</p> <p>The plaintiff - conceded that the evidence in support of the defendant’s petition indicated the payment of the $245, as claimed by the defendant, and proffered a remittitur of that sum.</p>

Trespass. Pleas, tbe general issue, liberum tenementum and justification under legal process. Trial by jury, Franklin County, September Term, 1898, Tyler, J., presiding. Yerdict and judgment for tbe plaintiff. Tbe defendants excepted. Before tbe case came on for trial a motion to dismiss for want of jurisdiction was beard and overruled. It appeared by tbe writ and was conceded that tbe date of tbe writ bad been altered.

Case. The defendants were partners doing business under the firm name of the Missisquoi Pulp Company. Plea, the general issue. Trial by jury, Franklin County, March Term, 1898, Rowell J., presiding. Yerdict and judgment for the plain tiff. The defendants excepted.

<p>Cash. Plea, the general issue. Trial by jury, Addison County, June Term, 1899, Taft, C. J., presiding. Yerdict and judgment for the defendant. The plaintiff excepted.</p> <p>The action was brought to recover for injuries alleged to have been caused by the negligence of the defendant in not providing for the plaintiff, his employee, a safe place in which to work.</p> <p>It appeared that the plaintiff was seriously injured by the falling of a staging upon which, with others, he was at work in the employ of the defendant in the erection of a building in the Yillage of Bristol. The defendant had himself put up certain uprights which supported the staging, but it was not claimed there was any defect or insufficiency in the part of the staging so constructed by him.</p> <p>It appeared that a part of the staging was defective, and that this part was constructed, in the absence of the defendant, by and under the direction of one Sorrell, an experienced workman in the employ of the defendant upon the job of building. There was evidence tending to show that Sorrell acted as the foreman of the defendant in the absence of the latter, who was away about one-third of the time.</p> <p>The plaintiff claimed that the staging was insufficient on account of a defect in one of the cross-pieces, and the lack of a suitable number of cross-pieces. One of the cross-pieces had in it, near the middle, two knots, one of which was plainly discernible on its upper side as it lay in its position in the staging, while the other could not readily be seen except by an examination of that side of the cross-piece which was its under side when it had been put into the staging. Each of the two knots extended across the stick used as a cross-piece, and being in close proximity, greatly impaired its strength.' The evidence tended to show that this cross-piece which was in the center of the staging broke where the knots were and that the staging fell to the ground carrying the plaintiff with it.</p> <p>The plaintiff claimed that the negligence arose in the performance of a duty for the careful discharge of which the defendant became responsible when he assumed the relation of master to the plaintiff, and that Sorrell was the defendant’s vice-principal charged with the master’s duty to provide a safe place for the plaintiff to work in.</p> <p>The defendant claimed that, if the plaintiff’s injury was caused by anyone but himself, it was caused by the negligence of a fellow-servant, and on this and other grounds moved for a verdict at the close of the plaintiff’s case. This motion was denied upon the ground that the defendant might be liable for furnishing insufficient material, but the court held, that any defect in the construction of the staging or any negligence in the selection of material was the negligence of a fellow-servant.</p> <p>In the charge the court said : “ If the platform was negligently constructed in the respects indicated, and insufficient, and would have fallen if the broken piece had been a sound piece, then the neglect was in the construction of the platform, and the neglect was the neglect of the workmen and not the neglect of the master. It was, in other words, the neglect of a fellow-servant. * * *</p> <p>“ And if that was true in this case, and you find that this platform was defective and would have fallen in any event, the defendant is not liable; but if the staging was properly built in all respects besides this broken piece, and sufficient in all other respects, the question then arises: were the workmen negligent in taking that piece of lumber and putting it into the staging in the way, and for the purpose, that they did do it ? It was their duty to examine any timber they put into the staging, especially a piece which served the purpose of supporting the whole platform, or any part of it. * * * If this defect was visible, if a prudent man under the same circumstances would not have used the stick for that purpose, would have rejected it,' then, it was negligence on the part of the men putting it into the place which they did, and for the purpose for which they used it. And it would be the negligence of the workmen and not that of the defendant, and under these circumstances the plaintiff cannot recover.”</p>

Trover. Trial by jury, Orleans County, September Term, 1893, Taft, J., presiding. Yerdict and judgment for the plaintiff. The defendants excepted. At the January Term, 1891, of the Supreme Court, a stay of proceedings was granted on a motion setting up the filing of petitions in insolvency by the defendants after the rendering of judgment in the County Court. Thereafter the case was continued from term to term and pleas and demurrers were filed as stated in the opinion.

General assumpsit with specifications for money loaned and for rent. Pleas, the general issue with notice, and payment. Trial by jury, Orleans County, September Term, 1897, Rowell, J., presiding. The court directed a verdict for the plaintiffs for $201.07, with interest thereon, the sum named’ being conceded by the defendant to be due and unpaid as rent, and submitted to the jury the right of the plaintiffs to recover in excess of that amount.

Chancery. The cause came on for hearing on pleadings, master’s report and exceptions thereto, Caledonia County, June Term, 1899, Thompson, Chancellor. Decree pro forma overruling the exceptions and dismissing the bill. The orator appealed.

Appeal by the proponent, Benjamin F. Gould, from a decree of the Probate Court refusing the allowance of a certain written instrument as the last will and testament of William F. Gould, deceased. Trial by jury, Windham County, September Term, 1899, Munson, J., presiding. Yerdict was directed, strictly proforma, for the contestants. Judgment on verdict. The proponent excepted.

Petition in the nature of an appeal from the decision of the selectmen of' Moretown establishing and opening a highway.

Assumpsit on an accident insurance policy. Pleas, the general issue and three special pleas. City Court of Barre, February 26, 1900. Trial by court, Boyce, J. Judgment for the plaintiff. The defendant excepted.

General assumpsit brought by the plaintiff as administratrix of Aaron Wertheim, deceased, to recover of the defendant on an insurance policy. Plea, the general issue. Trial by court, Chittenden County, March Term, 1900, Taft, C. J., presiding. The questions in the case were raised by objections to the evidence in behalf of the plaintiff made by the defendant on the ground that the evidence was inadmissible under the declaration.

Action oe debt under Y. S. 4841. Heard on demurrer to-the declaration, Windham County, March Term, 1900, Start, J., presiding. Demurrer overruled and declaration adjudged sufficient. The defendant excepted and the cause was passed to the Supreme Court before final judgment.

<p>Assumpsit. Plea, the general issue. Trial by jury, Rut-land County, September Term, 1899, Taft, O. J., presiding. Yerdict for the defendant. The plaintiff excepted.</p>

Action on the case in which the plaintiff sought to recover for the alienation of her husband’s affections, whereby she had been deprived of his aid, comfort and society. Plea, the general issue. Trial by jury, Rutland County, September Term, 1899, Taft, C. J., presiding. It appeared that the defendant was an aunt of Eollin F. Knapp, the former husband of the plaintiff whose affections were alleged to have been alienated.

General assumpsit brought by the plaintiff as administrator of O. A. Burton’s estate to recover for butter sold and delivered by his decedent to the defendant. Pleas, the general issue, payment, accord and satisfaction, the statute of limitations and offset. Trial by court, Franklin County, March Term, 1899, Mv/nson J., presiding. Judgment for the defendant on facts found. The plaintiff excepted.

Chancery. Heard on demurrer to the bill, Chittenden County, March Term, 1900, Taft, Chancellor. Decree sustaining the demurrer and dismissing the bill for want of equity. The orator appealed.

Petition eor a mandamus to compel the issue of an execution brought to the Supreme Court, Washington County, May Term, 1900, and heard on petition and answer at the same term. Reference is made to the case of Yatter v. Pitkin & Miller, ante, page 255.

<p>Evidence — Facts unconnected without proof of like conditions — If, as is not here decided, the quality of an act or thing, whether prudent or negligent, safe or dangerous, can he proved by showing that in conditions like those in the concrete case it has produced similar favorable or injurious results ; still, if the conditions are not substantially the same, the evidence is not relevant.</p> <p>Illustration — The case — The plaintiff was injured in falling over a plank incline maintained by the defendant at the door of a freight-room, and claimed that the defendant was negligent in having the incline as it was, and in not lighting the place where it was. An offer to show that the incline had for thirty years been maintained and used as it was at the time of the injury, but which ignored the matter of leaving the place unlighted, was irrelevant.</p> <p>The case — Question of defendant’s negligence for the jury — Some of the testimony was such as to permit the argument that the incline, maintained as it was, was a structure as necessary as any door step, while other testimony tended to show that it might have been movable, and away when not in use, or that its purpose might have been answered by an incline built inside the freight room, and that the incline, as maintained, was not properly lighted at the time of the accident. In this state of the evidence the question of negligence on the part of the defendant was for the jury.</p> <p>The case — Question of contributory negligence for the jury — There being testimony tending to show that the incline was in a way which the plaintiff might properly take in going to the defendant’s waiting room for passengers, and that neither that way nor any other was lighted, it could not be said, as matter of law, that the plaintiff was guilty of contributory negligence.</p>

<p>Construction of contract not to engage in a particular business. — One who has agreed not to carry on the wood business does not break the agreement by letting one man have two cords of stove wood for cutting ice for him and giving a tenant eight cords in lieu of fixing up the house occupied by the tenant.</p> <p>Definition — “ Business” as used in contracts in restraint of trade — The' word “ business” as used in contracts not to engage in a particular business denotes an aggregation of acts rather than an isolated act or two performed as a matter of special convenience or interest.</p>

<p>Jury trial — Jury drawn from part of the array — A party is not entitled to have the jury drawn from the array, though all the jurymen are at liberty. His full right is to have his cause tried by an impartial jury, and this right is presumably accorded him when the jury is drawn from the array, exclusive of the jurymen who have served in the next preceding cause.</p> <p>Pleadings — Denial of leave to amend discretionary idth trial court — The election of the plaintiff, in an action of assumpsit, to waive the special counts in his declaration and go to trial on the general counts, does not give the defendant the legal right to amend his pleading. A denial of leave so to amend is discretionary, and not revisable in the Supreme Court.</p> <p>If defendant would file a new plea as of right, the nature of the plea must be disclosed — Plea of res judicata after suit commenced — It will not avail one who has been denied leave to replead generally to claim in the Supreme Court, for the first time, that he wanted to plead res judicata after suit commenced.</p> <p>Jury interrogated when general verdict is returned — Answer of jury as a special verdict — Special verdict found agreeably to the usages of law — A finding of a jury that appears from the answer of the foreman, assented to by the rest of the panel, and given when the general verdict is returned, is a part of the verdict, and effective as such, when it is determinative of the substance of an issue raised and submitted.</p> <p>Finding as related to issues formed — A special finding of payment, in an action of assumpsit in which no plea of payment after suit commenced was interposed, shows payment before the commencement of the action. Promissory notes — Signer of note expressly promising as principal cannot defend as surety — If one, in signing a note with another, expressly promises as principal, he waives all rights as surety, though he is in fact such, and though the payee so knows when he accepts the note.</p> <p>Promissory notes — Joint and several principals — Waste of securities under plea in offset — Mutuality of demands — In a suit on a note brought by the original payee against one of two joint and several principals, waste by the payee of collateral securities, furnished by the principal not sued, cannot be shown in offset.</p> <p>Promissory notes — Joint and several principals — Waste of securities — Failure of consideration — Other defences — In a suit on a note brought by the original payee against one of two joint and several principals, waste by the payee of collateral securities, furnished by the principal not sued, is no defence by way of failure of consideration or otherwise.</p>

Debt on judgment. Principal defendant defaulted. Heard •as to the liability of the trustee and the contention of the claimant on commissioner’s report, Washington County, September Term, 1899, Watson, J., presiding. Judgment was rendered discharging the trustee and in favor of the claimant. The plaintiff excepted. The trustee was the administrator of the estate of Luther M. Parmenter, deceased.

Indictment in two counts under Y. S. 5086 for bribery. Trial by jury, Washington County, September Term, 1899, Watson, J., presiding. Yerdict, guilty. Judgment on verdict. The respondent excepted.

Indictment for murder in two counts. Trial by jury, Washington County, September Term, 1899, Watson, J., presiding. Yerdict, guilty of murder in the first degree. The respondent excepted. Cause passed to the Supreme Court before judgment and sentence.

Action of ejectment. The plaintiff recovered final judgment for the seisin and possession of the demanded premises at the October Term, 1898, of the Supreme Court. After the rendition of that judgment the defendants, with leave of court, filed a declaration against the plaintiff for betterments, and the case was remanded and issue joined on that declaration; Trial by jury, Rutland County, March Term, 1900, Rowell, J., presiding.

Chancery. Heard on bill and motion to dismiss, Orange County, December Term, 1899, Munson, Chancellor. Decree rendered dismissing the bill. The orator appealed. The appeal was filed as of course.

Heard on demurrer, Lamoille County, December Term, 1899, Taft, C. J., presiding. Pending the demurrer, tbe court, against tbe objection of tbe respondent, permitted tbe state’s attorney to amend the complaint. Demurrer overruled and amended complaint adjudged sufficient. Tbe respondent excepted, and tbe cause was passed to the Supreme ■Court before final judgment.

Petition brought by the Barre Water Company to take waters in the exercise of the right of eminent domain.' Heard ■on the report and supplemental report of commissioners, motions to set aside and re-commit the same and exceptions thereto, Washington County, March Term, 1898, Munson, J., presiding. Motion to set aside and re-commit and exceptions to reports overruled. Reports accepted, and judgment on reports for nominal damages to certain petitionees who excepted.

Case eor deceit. Plea, the general issue. Trial by jury, Windham County, September Term, 1899, Munson, J., presiding. Yerdict and judgment for the plaintiff. The defendant excepted.

Petition for mandamus brought to the Supreme Court for Windham County at its May Term, 1900. Heard at that term on petition and answers thereto.

Chancery. William Samson, a member of tbe firm of William Samson & Co., brought a bill against Jasper Rouse, bis co-partner, returnable to the Court of Chancery for Franklin County at the September Term, 1897, praying, among other things, for the appointment of a receiver of the assets of said firm and such receiver was accordingly appointed. Thereafter Julius 0.

Chancery. Decree of foreclosure rendered in accordance with the mandate of the Supreme Court, Chittenden County, March Term, 1899, Taft, Chancellor. For mandate see 71 Yt. 424. The sum to be paid on redemption was fixed at the amount due on the orator’s notes as found by the report of a special master. The defendant Henry O. Clark appealed.

<p>Evidence — Declaration of agent when not apart of the res gestee — Declaration of opinion or information rather than of knowledge — Declaration of agent as to matter to which his employment does not extend — The question being whether the plaintiff corporation had notice that a bond running to it, and signed by the defendant as surety, was not to be used until it was signed by another surety, evidence to show that long after the bond was accepted by the plaintiff and not at the time of any transaction respecting the bond, the plaintiff’s treasurer told the defendant’s attorney that the plaintiff took an assignment of a life insurance policy and a chattel mortgage in place of another surety, was not admissible, it not appearing that the treasurer had anything to do with the taking of the bond, or any authority in connection therewith, nor that he had any personal knowledge of the fact sought to be shown by his declaration.</p> <p>Evidence — Illustrations and experiments as evidence — Experiments before the jury — ■Experiments by the jury — Similarity of conditions and circumstances — The plaintiff claiming that a bond, which when produced in court had no seals upon it, was originally sealed with paper taken from the gummed margin of postage stamps, and that such seals had been lost without the fault or agency of the plaintiff, the defendant was properly denied permission to exhibit to the jury a sheet of post- ■ age stamps to illustrate how well the margin of such stamps are gummed and the size of a seal that can be taken from them. The defendant was also properly denied permission to adhere the margin of stamps to a piece of paper in the presence of the jury, for the purpose of letting the jury test the matter of their removal. In the absence of any offer to show similarity of conditions and circumstances the proposed illustrations and experiments were irrelevant.</p> <p>Evidence — Irrelevant facts — Evidence offered in behalf of the defendant to show that one G. A. Dow, a principal in the bond sued on, offered an insurance policy to various persons to secure them for signing the bond if they would sign it, without evidence tending to connect the plaintiff with Dow’s act, had no tendency to show that the words “and one life insurance policy of G. A. Dow” in the surety clause of the bond, were not in it when the defendant signed it as surety.</p>

<p>Case, brought by the plaintiff as administrator of the estate-of Dr. Royal T. Sawyer, deceased, to recover the pecuniary damages suffered by his next of kin in consequence of his death, claimed to have been caused by the wrongful act, neglect or default of the defendant. Plea, the general issue. Trial by jury Rutland County, September Term, 1899, Taft, C. J., presiding. Yerdict and judgment for the plaintiff. The defendant excepted.</p> <p>At the close of the evidence the defendant moved the court to direct a verdict in its favor. This motion was overruled. The grounds of the motion as summarized by the defendant’s counsel were as follows :</p> <p>1. That the plaintiff’s intestate’s death having been caused by a flash of lightning,the defendant was not under any contractual obligation to prevent the occurrence.</p> <p>2. That it was impossible to have prevented it. That there was no appliance, or device, which could have prevented it; and that in the absence of any express contract of insurance, no legal duty was imposed upon the defendant to perform an impossibility.</p> <p>8. That the plaintiff’s intestate was guilty of such contributory negligence that no recovery could be had.</p>

<p>Trespass, to determine the right of a tenant to remove a certain building from premises in question. Trial by court, Windham County, March Term, 1900, Start, J., presiding. By agreement of counsel the facts were found and filed by the presiding judge in vacation. Judgment on facts found for the defendant to recover his costs. The plaintiff excepted.</p> <p>The lease in question, the terms of which are sufficiently set out in the opinion, was dated and recorded June 27, 1896. Thereafter the building in question was erected on the demised premises by the lessee under his lease. On the 19th day of October, 1899, the plaintiff was in possession of the premises by virtue of a warranty deed from the lessor, and on that day the defendant, acting under the direction of the lessee, entered upon the premises for the purpose of moving the building therefrom and was attempting to do so when the plaintiff notified him to desist and this suit was brought. The suit was brought for the purpose of determining the ownership of the building and the plaintiff on trial claimed only nominal damages.</p>

■ Chancery. Pleard upon bill and supplemental bill and answers thereto, Windham County, September Term, 1897, jRoss, Chancellor. Decree in accordance with the' prayer of the bill. The defendant school district appealed.

General and special assumpsit, in which the plaintiff as beneficiary sought to recover upon a policy of accident insurance upon the life of Barma A. Clark, her husband. Pleas, the general issue and a special plea setting out that the insured came to his death from spontaneous or natural apoplexy. Trial by jury, Windham County, September Term, 1896, Start, J., presiding. Yerdict and judgment for the plaintiff. The defendant excepted.