Volume 73 — Vermont Reports

Petition eor Mandamus brought to the Supreme Court for Washington County and heard on petition, answer, depositions and stipulations at the October Term, 1900. The scope of the testimony and of the matter referred to by stipulation appears from the opinion.

<p>Petition to the Supreme Court under V. S. 3864. Heard on petition and a motion to dismiss at a Special Term held at Burlington in Chittenden County, February 23 and .28, 1900.</p>

<p>Petition for leave to enter a cause in which an appeal was denied by the trial justice. Heard on demurrer to the petition, Windham County, September Term, 1899, Munson, J., presiding. Demurrer overruled, ■ petition adjudged sufficient and leave to enter the cause granted.</p> <p>The petition set out that judgment was rendered against the petitioner by a justice of the peace in an action of trover brought by the petitionee for the alleged conversion of a mileage book; that the petitioner seasonably prayed for an appeal, paid the appeal fee and tendered good and sufficient recognizanee for such appeal, but that his appeal was denied by the justice. The petitioner based his claimed right of appeal upon a plea in excuse and justification pleaded by him in good faich in said cause. The substance of the plea is stated in the opinion.</p>

Case for deceit in the sale of land. Plea, the general-issue. Trial by jury, Franklin County, September Term, 1899, Start, J., presiding. Verdict for the plaintiffs. Judgment on verdict. The defendants excepted.

CasB for negligence. Plea, the general issue. Trial by jury, Washington County, September Term, 1897, Tyler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Petition for a mandamus returnable to the Supreme Court for Caledonia County at the October Term, 1900. Heard at said term, on petition, answer and testimony.

* Assumpsit for money paid under protest for taxes in 1897 and in 1898. Pleas, the general issue with notice, and the Statute of Limitations. Trial by jury, Washington County, March Term, 1900, Tyler, J., presiding. A verdict was directed for the defendant and judgment was rendered thereon. The plaintiff excepted.

Case for an injury to the plaintiff by the defendant’s dog. Plea, the general issue. Trial by jury, Rutland County, March Term, 1900, Rowell, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

<p>Evidence — Unconnected facts — That it has been a customer’s practice to pay a certain grocer’s bill to the grocer personally and not to his clerk, does not tend to show that on a particular occasion the customer did not pay one of such bills to the grocer’s clerk.</p> <p>A party’s booh is evidence only of what it affirmatively shows — Plaintiff may not show non-payment by absence of credit — -The question being whether a certain account had been paid by the defendant to the plaintiff, the plaintiff’s book with no entry of payment thereon was not admissible as evidence of non-payment. One’s book is admissible in his favor only as evidence in regard to what it affirmatively shows.</p> <p>Letter-booh copies as evidence confirmatory of testimony that the originals had been sent, their receipt by the person addressed being denied — Upon the question whether payment had been made for a b,arrel of flour, the defendant testified that he had received no bill of the flour since the date of the claimed payment, and the plaintiff testified that since that date he had sent the defendant two such bills. In connection with this testimony of the plaintiff it was proper for him to introduce letter-book copies of the original bills which he claimed to have so sent.</p>

Case for injuries sustained in a collision with a railroad train operated by the defendants. Plea, the general issue. Trial by jury, Washington County, March Term, 1900, Tyler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Chancery, Franklin County. On September i, 1900, at Chambers, before Stafford, Chancellor, this case came on for hearing upon bills, answers, replications, cross-bill, master’s report, exceptions to master’s report and a motion to dismiss the cross-bill, whereupon, the parties agreeing that the same might be done, it was ordered and decreed pro forma that the motion to dismiss the cross-bill be denied, that the exceptions to the report be overruled and that the orators,…

Trover for the conversion of a horse. A count in trespass was joined. Plea, the general issue with notice of justification under process. 'Trial by court, Washington County, March Term, 1900, Tyler, J., presiding. On facts found, judgment was rendered for the defendant. The plaintiff excepted.

Action on the case, founded on V. S. 5008, brought to recover damages for injury to a burial ground fence. Plea, the general issue. Trial by court, Franklin County, March Term, 1900, Thompson, J., presiding. On facts found, judgment was rendered pro forma for the plaintiff. The defendant excepted.

Action of book account. Heard upon the report of an auditor and exceptions thereto, Caledonia County, June Term, 1900, Taft, C. J., presiding. The exceptions were overruled, and judgment was rendered for the plaintiff on the auditor’s report. The defendant excepted.

Appiíai, from a decree of the Probate Court for the district of Orleans construing the will of Mary E. Keniston. E. A. Jackson, administrator of the estate of Nathan Keniston was appellee. H. S. Tolman, administrator of the estate of Mary E. Keniston, The American Board of Commissioners for Foreign Missions, The Woman’s Board of Missions, Auxiliary to the last named Board, and The American Home Missionary Society, were appellants.

Action of ejectment. Plea, not guilty. The cause was referred, and on the filing of the referee’s report, Windsor County, December Term, 1899, Tyler, J., presiding, judgment was rendered on the report, pro forma, for the defendant. The plaintiff excepted.

Assumpsit. The question was as to the liability of the trustee and the right of the claimant. Heard on commissioner’s report, Caledonia County, June Term, 1900, Taft, C. J., presiding. Judgment that the claimant was entitled to $477 of the funds in the hands of the trustee and that the trustee was chargeable for $23. The trustee and the claimant excepted.

ThF dfcraration in the case was in three counts; the second count was trover in the usual form. The character of the first and third counts appears from the opinion. Heard on a demurrer to the first and third counts, and on a demurrer to the whole declaration, Caledonia County, June Term, 1900, Taft, C. J., presiding. Demurrers overruled and declaration adjudged sufficient. The defendant excepted and the cause was passed to the Supreme Court before final judgment.

Case against a physician and surgeon for negligently and improperly performing a surgical operation on the plaintiff’s club feet and for not properly caring for and treating them afterwards. Plea, the general issue. Trial by jury, Rutland County, March Term, 1900, Rowell, J., presiding. Verdict for the plaintiff. After verdict and before judgment the defendant moved in arrest of judgment. The motion was overruled and the defendant excepted.

Chancery. Upon pleadings and findings in an action at law, that were by agreement treated as the report of a special master, at the December Term, 1900, Rutland County, Tyler, Chancellor, a decree was rendered, pro forma and without hearing, dismissing the bill. The orator appealed.

Assumpsit on a note. Plea, the general issue with notice setting up a failure of consideration. The cause came on for-hearing upon a referee’s report, a request for further findings, an additional report and the plaintiff’s exceptions to the reports, Windsor County, December Term, 1899, Tyler, J., presiding. Judgment was rendered pro forma for the defendant. The plaintiff excepted.

Chancery. This cause having been heard in the Supreme Court was remanded with a mandate that a decree be entered for the orator. See this case, 72 Vt. 311. The defendants filed a motion to have the report of the master recommitted for the purposes stated in the opinion.

Habeas Corpus returnable at Burlington in Chittenden County before Munson, J., and duly adjourned into the Supreme Court, at its October Term, 1900, and heard at said term.

Assumpsit on a note. Plea, the general issue. Trial by court, Washington County, March Term, 1900, Tyler, J., presiding. On facts found, judgment was rendered against the defendants D. L. Fuller and H. F. Dean, named in the opinion. The defendant D. L. Fuller excepted. The note in suit was one signed by all the defendants and was as follows: “$873.82 Jan. g, 1897.

This was an action of assumpsit brought to the City-Court of Montpelier. Judgment by default was rendered against the principal defendant. Upon an agreed statement of facts the court, Smilie, J., pro forma and without hearing adjudged that the trustee was chargeable for the amount of the judgment against the principal defendant. The claimant excepted.

<p>Petition in Chancery. Heard on demurrer to the petition, Windham County, September Term, 1900, Watson, Chancellor. A decree was rendered overruling the demurrer. The defendant appealed.</p> <p>For the mandamus case referred to in the opinion see 72 Yt. 419.</p>

<p>Wills — Circumstantial evidence of due execution — Circumstantial evidence of the due execution of a will may be such as to supplement or control the direct 'evidence of attesting witnesses.</p> <p>Wills — Attestation clause as evidence under certain circumstances— When from lapse of time the attesting witnesses to a will are unable to recollect all the facts essential to a good execution, if their signatures and that of the testator are proved, an attestation clause, showing compliance with all the formalities required by law, is prima facie evidence of the due execution of the will.</p> <p>Wills — Attestation clause drawn by the testator and execution superintended by him — That a testator drew his own will with a perfect attestation clause and superintended its execution, tends to show that he knew and complied with the requirements of the law.</p> <p>Wills — Will and attestation clause drawn and execution superintended by testator of experience in such matters and with Knowledge of the formalities required — Proof that before the execution of his own will in question a testator was accustomed to draw wills and superintend their execution for other people, and that he drew the will in question with a perfect attestation clause and superintended its execution with full knowledge of the requisites to due execution, raises a strong presumption that the requirements or the law in that regard were complied with.</p> <p>Wills — The testator need not actually sign in the presence of the attesting witnesses — A testator’s acknowledgment, in the presence of witnesses, of his signature previously affixed, is equivalent to a signing in their presence. The acknowledgment need not be in express words.</p> <p>Wills — Formal publication not necessary — Any communication by a testator to witnesses, by words, signs, motions, or conduct, of the idea that he intends to give a paper effect as his will is sufficient in law to constitute a publication. In this case superintending the execution of a signed holographic will was sufficient.</p> <p>■Witts — That the witnesses signed animo attestandi may be shown otherwise than by them — That the attesting witnesses to a will knew at the time they signed that they were witnessing the testator’s will, need not he shown hy th'eir testimony. That fact, though necessary to he proved, may be otherwise shown, as hy circumstantial evidence.</p> <p>Witts — Signing by witnesses in the presence of each other — If at the execution of a will the attesting witnesses were so situated that they could see one another sign, it is immaterial whether in fact they did or did not.</p>

<p>Bile in chancery to foreclose the equity of redemption of Lydia Hutchinson, Charles Hutchinson and Edward H. Deavitt, in certain premises in Lyndon.</p> <p>The case came on to be heard on the report of a special master at the June Term, 1900, Start, Chancellor, whereupon, pro forma and without hearing, a decree was rendered in favor of the orator. The defendant Deavitt appealed.</p>

Chancery. The orator as assignee in insolvency of B. P. White alleged a partnership between said White and the defendant Hooker, conducted under the name of B. W. Hooker & Co., and sought to have the alleged partnership wound up and an accounting had. The cause was heard on bill, answer, master’s report and exceptions thereto, Washington County, March Term, 1900, Tyler, Chancellor. A decree was rendered dismissing the bill. The orator appealed.

Petition, for divorce. Heard at the September Term, 1900, Chittenden County, Munson, J., presiding. The petition was dismissed. The petitioner excepted. The court found that the desertion referred to in the opinion began December 2, 1898.

Indictment Eor murder. Trial by jury, Windsor County, June Term, 1900, Munson, J., presiding. Verdict guilty of murder in the first degree. The respondent excepted. Judgment and sentence respited and cause passed to the Supreme Court.

<p>Appeal from a decree of the Probate Court allowing an instrument as the last will of Edmond McCabe. Trial by jury, Windsor County, June Term, 1900, Munson, J., presiding. Verdict establishing the will. Judgment on verdict. The contestants excepted.</p>

<p>Intoxicating liquor — Disclosure under V. 8. 4483 — Upon conviction of being found intoxicated a respondent was put upon disclosure and asked “Of whom did you get the alcohol.” Under the circumstances the question obviously related to the liquor producing the intoxication. Besides tne respondent’s answer showed that he so understood it. The inquiry was proper and material.</p> <p>Perjury in disclosing under V. 8. 4483 — If one who is properly required to disclose under V. S. 4483 knowingly and wilfully testifies falsely as to facts material to the place where and the person of whom the liquor producing intoxication was obtained and the circumstances attending its procurement he is guilty of perjury.</p> <p>Scope of disclosure under V. 8. 4483 — Perjury in making such disclosure — In taking a disclosure under V. S. 4483 the state is entitled to put questions in the nature of cross-examination with a view to obtaining a truthful and full disclosure, and if the one disclosing knowingly and wilfully testifies falsely in answer to proper questions in the line of such examination he is guilty of perjury.</p> <p>Evidence — The question being whether one who was arrested intoxicated on a certain day had given false testimony in saying that he became intoxicated solely by drinking from a pint of alcohol which he obtained that day from a stranger on the street and that he had no other liquor that day, it was proper for the state to introduce evidence tending to show that about two hours before his arrest he obtained a pint bottle filled with alcohol of a town agent at the town agency, and that at the time of his arrest he had such bottle with him, but that it was then only partly filled.</p>

Petition for a writ of certiorari brought to the Supreme Court for Windsor County and heard at the January Term, 1901. The petition was treated as demurred to.

<p>Trespass — In tfie same action recovery may fie fiad for distinct trespasses if eacfi trespass is set out in a separate count.</p>

Assumpsit founded upon V. S. 3171 and 3172 to recover for money expended in the necessary assistance of certain poor persons. The cause was heard upon the report of a referee and the defendant’s exceptions thereto in the vacation following the December Term, 1900, of the Orange County Court, before Watson, Presiding Judge. Judgment was rendered on the report pro forma for the plaintiff. The defendant excepted.

Assumpsit on a promissory note. Pleas, the general issue and the statute of limitations. Trial by court, Chittenden County, March Term* 1900, Taft, C. J., presiding. Upon the facts found by the court judgment was rendered for the plaintiff. The defendant excepted.

Trover. Plea the general issue with notice. Trial by jury, Windham County, September Term, 1900, Watson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The plaintiff's evidence tended to show that the defendant sold at auction sheep belonging to the plaintiff and that such selling constituted the trover for which the action was brought.

Chancery. Bennington County. Petition for the appointment of commissioners to set out a homestead. In vacation following the June Term, 1900, the cause came on for hearing on the bill and a demurrer thereto before Watson, Chancellor. It was adjudged and declared^rojcrwaand without hearing that the demurrer be sustained and the bill dismissed. The orators appealed.

Liber. Heard on demurrer to the declaration, Rutland County, March Term, 1901, Munson, J., presiding. The demurrer was sustained and the declaration adjudged insufficient. The plaintiff excepted.

Indictment for murder. Trial by jury, Addison County, June Term, 1900, Tyler, J., presiding. Verdict, guilty of murder in the first degree. The respondent excepted. The case is stated in the opinion.

Information for grand larceny. Trial by jury, Washington County, September Term, 1900, Watson, J., presiding. Verdict of guilty. Judgment on verdict and sentence imposed. The respondent excepted.

Case for injuries received on a highway bridge or culvert. Trial by jury, Windsor County, December Term, 1899, Tyler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The witnesses Tarbell, Wilson, Green, the Slacks and the Hubbards, referred to in the opinion, testified to accidents that had befallen them in driving over the bridge in question.

Information in Chancery. Chittenden County. The information charged the defendant with keeping a liquor nuisance, in certain premises, and prayed for a permanent in junetion against the further maintenance of said nuisance by the defendant in said premises. Heard on bill, answer and oral testimony in vacation following the April Term, 1900, before Taft, Chancellor. A decree was rendered in accordance with' the prayer of the bill. The defendant appealed.

Chancery. Heard on bill, answer, replication and testimony, Chittenden County, March Term, 1900, Taft, Chancellor. Decree that the bill be dismissed. The orator appealed. The bill prayed that the defendants might be enjoined “from removing and interfering with” a certain building, and a temporary injunction was granted in accordance with the prayer of the bill.

<p>Expert evidence as to matters within the range of common knowledge excluded — In the construction of a building the staging used was supported upon brackets held in place by nuts screwed upon bolts extending from the brackets through the wall of the building. Whether one who had hold of a bracket could tell that a nut which was being unscrewed upon the inside of the wall was connected with the bracket which he had hold of or with some other, was not a question for expert testimony.</p> <p>Gharge as to contributory negligence — Questions not raised by a general exception — In a negligence case the court charged that if the plaintiff was guilty of negligence which contributed to the accident he could not recover. A general exception to this by the defend- and did not present the claim that the charge should have been more full and specific, nor the claim that; upon the defendant’s evidence, the plaintiff was guilty of contributory negligence as matter of law.</p>

Trespass. Plea, the general issue. Heard on the report of a referee and exceptions thereto, Rutland County, September Term, 1900, Tyler, J., presiding. Judgment on the report for the defendant. The plaintiff excepted.

Bill in Chancery to compel the specific performance of a contract. Heard on demurrer to the bill, Bennington County, June Term, 1900, Watson, Chancellor. The demurrer was overruled, the bill adjudged sufficient and a decree rendered for the orator in accordance with the prayer of the bill. The defendant appealed.

Trespass. Plea, the general issue. Trial by jury, Franklin County, March Term, 1900, Thompson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Appear from a disallowance of a claim by commissioners. The claimant declared in assumpsit. Trial by court, Wind-ham County, October Term, 1900, Munson, J., presiding. The court on facts found rendered judgment for the estate. The claimant excepted.

<p>Real estate — IAfe tenancy — One entitled only to the use, occupancy, rents, issues and profits of a farm during life is a life tenant merely.</p> <p>Real estate — Case of an unopened quarry — A life tenant of a.farm has no right in respect to an unopened quarry thereon, further than, the right to prevent interference with his use of the land as a farm, and the right to keep it unwasted for the remainder-man.</p> <p>Waiver by life tenant of rights beneficial to him,. — A life tenant of a farm by joining with the remainder-man in a lease of an unopened quarry thereon to be worked upon royalty, waives such right as he may have to prevent quarrying as an interference with his life estate.</p> <p>Lease of unopened quarry by remainder-man and life tenant — The mer© execution by the life tenant and the remainder-man of a lease of an unopened quarry to be worked upon royalty, does not at most entitle the life tenant to more than half the royalty.</p> <p>Recovery from remainder-man by life tenant — The life tenant cannot recover from the remainder-man what the latter would be entitled to have paid back to him.</p>

Information in four counts under V. S. 4133. Heard on demurrer to the information, Windsor County, December Term, 1899, Tyler, J., presiding. The demurrer was ovem ruled, the information held sufficient and the respondent adjudged guilty. The respondent excepted.

• Appeal from a decree of the Probate Court construing the will of Anna S. Bradley and ordering distribution thereunder. Trial by court, Windsor County, December Term, 1900, Start, J., presiding. Judgment was rendered pro forma affirming the decree of the Probate Court. The appellants excepted.

This was a road petition under V. S. 3314, in the nature of an appeal from the action of the selectmen of the town of Derby in re-surveying a highway. Heard upon the petition and report of commissioners, Orleans County, March Term, 1900, Watson, J., presiding.

Complaint for a writ of quo warranto brought to the Supreme Court for Lamoille County at its January Term, 1899. Answers were filed January 7, 1899. At the May Term, 1899, the death of Jane E. Noyes, complainant, was suggested and the administrators of her estate entered to prosecute. Testimony was filed May 10, 1900. Afterwards the defendant village filed a motion to dismiss, and the cause was heard on said motion at the May Term, 1901.

Prosecution for the violation of certain ordinances of the City of Barre. Tried by a City Court jury in the City Court of Barre, Pay, J. Verdict and judgment of guilty were rendered, and the respondent, January 14, 1901, was sentenced to pay a fine of one dollar and the costs of prosecution. The respondent excepted.

Trespass. Plea, the general issue with notice of justification as tax collector of the town of Somerset. Upon an agreed statement of facts the Windham County Court, at its March Term, 1901, Start, J., presiding, rendered judgment for the defendant. The plaintiff excepted.

Petition under V. S. 1667. The petitionee demurred. Heard on the demurrer, Lamoille County, December Term, 1900, Tyler, J., presiding. The court sustained the demurrer, adjudged the petition insufficient and as a matter of discretion dismissed the same. The petitioner excepted.

Petition for a new trial brought under V. S. 1662 to the Supreme Court for Rutland County at its May Term, 1901, and heard on testimony taken and filed. See Mullin v. Flanders, 73 Vt. 95. •

Trial by jury, Orange County, December Term, 1900, Watson, J., presiding. On special verdicts returned judgment was rendered pro forma for the defendant. Both parties excepted. The exception of the plaintiff was to the judgment rendered. The defendant’s exceptions related to the admission of evidence and to the charge of the court.

Petition of Annie Stearns and numerous others setting out that the defendant had condemned and appropriated the property of the petitioners for the purpose of a water supply, and that the petitioners were dissatisfied with such taking and with the compensation allowed them as damages.

Trespass and Trover for the conversion of certain farm products. Plea, the general issue. Trial by the City Court of Montpelier, Smilie, J., December 22, 1900. Judgment for the defendant. The plaintiff excepted. The plaintiff was the grantee of Elizabeth Ring.

Action by the plaintiff to recover of the defendant for the support of a pauper. Caledonia County, December Term, 1900. On an agreed statement of facts the court, Taft, C. J., presiding, pro forma and without hearing, rendered judgment for the plaintiff. The defendant excepted.

This was a petition in Chancery brought by one Temple against the firm of A. E. Eemerise & Co. for the appointment of a receiver and the dissolution of the partnership. Chittenden County, September Term, 1900, Taft, Chancellor. Among the claims against said firm, presented under subsequent proceedings, were those stated in the opinion. Both were disallowed by the Chancellor sitting at chambers in the vacation following said term. The claimants appealed.

This was an action of assumpsit which came into the County Court on appeal from a justice. The plaintiff filed a motion to dismiss the appeal. Heard on said motion, Caledonia County, June Term, 1900, Taft, C. J., presiding. The court rendered judgment sustaining the motion and dismissing the appeal. The defendant excepted.

<p>Chancery. Washington County. At the March Term, 1901, Watson, Chancellor, the cause came on to be heard on bill and answer, and thereupon it was decreed, pro forma, that the bill be dismissed. The orators appealed.</p> <p>The orators were Smith, Whitcomb & Cook, the Stafford & Holden Manufacturing Company and J. W. Phelps, all having mills situated as the opinion shows. The bill prayed that the defendant might be enjoined from using the waters of the stream in question for the purpose of polishing stone.</p>

Biel in chancery for the dissolution of a partnership, for an accounting, and for a division of the partnership property. Heard on bill, answer, master’s report, and a report of a receiver, Washington County, March Term, 1901, Watson, Chancellor. The only question made was as to* the division of profits. The court held that the orator and the defendant were equal partners and decreed accordingly. The defendant appealed.

In the first of the cases above named, the declaration was. upon a false warranty in three counts. Plea, the general issue. Trial by jury, Caledonia County, December Term, 1900, Taft, C. J., presiding. Verdict for the plaintiff. After verdict and before judgment the defendant filed a motion in arrest of judgment. The motion was denied and judgment was rendered on the verdict. The defendant excepted.

Case; sor nEGMGEnce in the sale of a mileage book.' Plea, not guilty.- Trial by jury, Caledonia County, June Term, 1900, Taft, C. J., presiding. A verdict for the defendant was directed and judgment on the verdict was rendered. The plaintiff excepted. For the nature of the declaration, which was held sufficient on demurrer, see this case, 72 Vt. 156.

Trespass and trover for lumber. Plea, the general issue. Trial by jury, Lamoille County, June Term, 1900, Rowell, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The plaintiff sought to recover for a quantity of spruce lumber manufactured at the mill of one Weed in Lowell, all of which the defendant had. Two car loads of it were from the stock of 1897, and three car loads from the stock of 1898.

Petition asking that a case in which verdict and judgment were rendered against the petitioner as defendant therein be brought forward and that the record or docket entry therein be amended. Heard by the court, Orleans County, March Term, 1900, Watson, J., presiding. The court made and filed a written statement of the facts by it found and thereupon the prayer of the petition was denied and the petition dismissed. The petitioner excepted.

Chancery. Caledonia County. In this case the orator sought to foreclose a mortgage upon the real estate of the Beckwith Marl Co. a corporation in bankruptcy. The defendant L. J. Eldridge, who was the trustee in bankruptcy, made no claim to any interest in the property covered by the mort~age and had filed a disclaimer in the Bankruptcy Court.

Action on the case brought under V. S. 2452 for the benefit of the widow and next of kin of the plaintiff’s intestate. Plea, the general issue. Trial by jury, Windsor County, June Term, 1900, Munson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. Upon the conclusion of the evidence the defendant moved for a verdict to be directed in its favor. This motion was overruled.

REpeEvin for CATTRE. The issues made by the pleadings appear in the opinion. Trial by jury, Caledonia County, June Term, 1900, Taft, C. J., presiding. A verdict was directed for the plaintiff and judgment was rendered upon the verdict. The defendant excepted. Before trial the court allowed the plaintiff to file a new declaration and overruled a motion to dismiss the same.

CasF For nFGrigFncf. The plaintiff filed an amended declaration to which the defendant demurred. The demurrer was overruled and the defendant excepted. Thereupon the defendant filed pleas in bar to which the plaintiff demurred. Hearing was had on the plaintiff’s demurrer, Rutland County, March Term, 1901, Munson, J., presiding. The court sustained such demurrer and adjudged the defendant’s pleas insufficient.

Petition under V. S. 1667 for leave to enter a cause in which an appeal was denied by the trial justice. Heard on demurrer to- the petition, Franklin County, September Term, 1899, Start, J., presiding. The court sustained the demurrer and dismissed the petition. The petitioner excepted.

This was an action under V. S. 1698 to recover the penalty for knowingly receiving illegal fees. Plea, the general issue. Trial by jury, Franklin county, September Term, 1900, Stafford, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The defendant was collector of taxes for the town, of Johnson and the fees in question grew out of the due collection by him from the plaintiff in Bakersfield of an unpaid balance of a tax.

This was an appeal from the final decree of the Probate Court distributing the estate of Lucy S. Ruggles late of Bennington, who died testate. The Count}' Court for the County of Bennington at its December Term, 1899, Start,].,presiding, pro forma and without hearing, affirmed the decree of the Probate Court. The executor of the will in question and the next of kin of the testatrix excepted.

Trover. Plea, the general issue. Trial by jury, Orleans County, September Term, 1893, Taft, J., presiding. Verdict and judgment for the plaintiff. The defendants excepted. At the January Term, 1894, of the Supreme Court, when the case was called for hearing on the exceptions, proceedings, were stayed on a motion setting up the filing of petitions in insolvency by the defendants after the rendering of judgment in the County Court. 66 Vt. 633.

Bill in Chancery praying for an equitable offset. E. W. Kent and the attorneys of Lee, referred to- in the opinion, were joined with him as defendants. The cause came on to be heard on bill and demurrers thereto-, Washington County, March Term, 1901, Watson, Chancellor, and thereupon, pro forma and without hearing, the court sustained the demurrers and dismissed the bill. The orators appealed.

Action ok assumpsit to recover an amount of taxes paid •under protest, returnable to the City Court of Montpelier. Upon an agreed statement of facts the court, Wing, Acting Judge, pro forma and without hearing, rendered judgment for the defendant. The plaintiffs excepted. William E. Harlow, guardian of the beneficiary of the trust in question, was joined with the savings bank and trust •company as plaintiff.

<p>This was an action under V. S. 506, brought by the •plaintiff as collector of taxes for the town of Belvidere against H. E. Lewis and H. G. Morton, to collect a tax by trustee ■process. Upon an agreed statement of facts the court, Lamoille County, October Term, 1900, Taft, C. J., presiding, rendered a pro forma judgment for the plaintiff. The defendant excepted.</p> <p>The certificate attached to the quadrennial appraisal of the real estate of said town for 1894 was sworn to by the listers before the town clerk of said town, and not before a justice. •Of the three listers of said town for 1897, two only took the preliminary oath required by V. S. 438, and this oath they book before the town clerk. The tax sought to be collected, was assessed upon the list of 1897.</p>

<p>This was an appeal from the decision of commissioners upon a claim presented against the estate of A. S. Watkins, late of Rutland, deceased. The claimant declared in assumpsit. Plea, the general issue with notice. Trial by jury, Rut-land County, September Term, 1899, Taft, C. J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.</p> <p>The plaintiff sought to recover upon a promissory note for $3,500. The defendant’s notice denied the execution of the note. The note was payable to Nellie A. Davis or order and endorsed by her. The plaintiff procured the note of the payee after it became due.</p> <p>The testimony and offers of evidence, and the rulings of the court thereon, are indicated by the opinion. Declarations of Mrs. Davis, to the effect that there was no consideration for the note, were offered, and were excluded for the reason that the court was unable to find whether such declarations were made before or after the transfer of the note to the plaintiff. The defendant claimed that it was for the jury to find whether such declarations were made before or after the transfer.</p> <p>At the close of the evidence the court, on motion, directed a verdict for the plaintiff.</p>

<p>Bier in chancery to have the defendant enjoined from interfering with the orator’s use and enjoyment of a claimed right of way over the defendant’s land. At the September Term, 1900, Franklin County, Stafford, Chancellor, the cause was considered upon pleadings and a master’s report, and thereupon it was ordered, adjudged and decreed that the bill be dismissed. The orator appealed.</p> <p>The master’s report recited that certain facts were found upon evidence objected to by the orator as inadmissible, and set out the grounds of objection made. No exceptions to the report were filed.</p>

<p>Petition for a new trial brought, under V. S. 1997 and 1998, by a respondent after his conviction of murder, and after the dismissal of a former petition for a new trial. This petition was based on evidence of insanity discovered after the trial and after the dismissal of the former petition, and was brought to the Supreme Court for Washington County, at its May Term, 1901, and heard at said term.</p> <p>The testimony introduced on the trial of the respondent, and the testimony filed with the former petition, were referred to in this petition and made a part thereof. The defence of insanity was not made at the trial. Reference is made to State v. Doherty, 72 Vt. 402.</p>

Trover Eor the conversion of a sleigh. Plea, the general issue. Trial by juiy, Caledonia County, December _Term, 1900, Taft, C. J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The defendant was the wife of one Poster B. Phelps, and during the period in question, lived with him on a place which was owned by her, and which he occupied in her right.

Replevin for a garnet machine and feeder and a rag picker. Plea, the general issue. Trial by jury, Bennington County, December Term, 1899, Start, J., presiding. The court directed a verdict of not guilty for the defendant on the ground stated in the opinion, and submitted to- the jury the question whether or not the property replevied should be returned to the defendant.

Indictment in fourteen counts, based upon V. S. 5128 relating to “bucket-shops.” The respondent filed a demurrer. Heard upon the demurrer, Caledonia County, June Term, 1900, Taft, C. J„ presiding. Upon hearing, the demurrer was overruled, the indictment adjudged sufficient, and the respondent adjudged guilty. The respondent excepted, and the cause was passed to the Supreme Court before sentence.

<p>Constitutional law — The power to grant pardons, conditional as well as absolute, is a constitutional prerogative of the Governor — The power to grant pardons being conferred upon the Governor by the constitution in unrestricted terms, except in cases of murder, treason and impeachment, he has, except in such cases, authority to grant every kind of pardon known to the common law. A pardon granted by him may be full and absolute, or partial and conditional, provided no condition of a pardon be illegal, immoral or impossible.</p> <p>Constitutional law — The power of the Governor to pardon cannot be taken away, restricted or conferred upon others by the legislature —The pardoning power conferred upon the Governor by the constitution cannot be taken away or restricted by the legislature, nor can a like power be given by the legislature to any other officer or authority.</p> <p>Constitutional law — Construction of statutes — V. 8. 5306 — A conditional discharge is equivalent to a conditional pardon — The conditional discharge which V. S. 5306 assumes to authorize the Governor to grant is equivalent to a conditional pardon, which the Governor may grant, irrespective of the statute, by virtue of the constitution. Neither is a remission of guilt, as is a full pardon.</p> <p>Constitutional laxo — Construction of statutes■ — Section 8 of No. T36, Acts of 1893, was wholly unconstitutional and void — Section 4 of No. 104, Acts of 1900 — Section 8 of No. 126, Acts of 1898, undertook to transfer the power of conditional pardon from the Governor to a board of prison commissioners, as to all convicts sentenced after the passage of the act, .and to provide a remedy and procedure, corresponding to that pointed out in V. S. 5306 to 5309 inclusive, for cases in which a convict should violate the conditions of a discharge granted him by the board of prison commissioners, and was wholly unconstitutional and void. Neither said act No. 126, nor the repeal of certain sections thereof by section 4 of No. 104, Acts of 1900, affected the exclusive power of the Governor to grant conditional pardons to convicts, irrespective of the date of their sentence.</p> <p>Constitutional law — Construction of statutes — Acts of 1898, No. 121 — Indeterminate sentences — An indeterminate sentence, provided for by section 1, No. 127, Acts of 1898, is, in law, a sentence for the maximum term, and the board of prison commissioners “has no authority to grant a conditional discharge to a prisoner after the expiration of the minimum term named in the sentence. Such a discharge would be an encroachment upon the pardoning power of the executive, and the statute assuming to authorize it is unconstitutional and void. The prison commissioners can grant neither a discharge nor a parole to a convictm any case.</p> <p>Conditional pardons — Effect of non-performance of conditions — Liability to be remitted to custody — By the non-performance of the conditions of a pardon accepted by a convict, the pardon becomes void, and the convict is liable to be remitted to imprisonment under his original sentence.</p> <p>Conditional pardons — Remitting a convict to imprisonment under his former sentence — Statute providing for procedure — Construction of V. S. 5308 and 5309 — V. S. 5308 and 5309, continued in force as to convicts sentenced before No. 126, Acts of 1898 took effect, do not provide for remitting to imprisonment under his former sentence a convict who has violated the conditions of his pardon, but create a new offense, that of an escape, and provide a penalty therefor, and before a person can be punished under such a statute he is entitled to a trial in due course of criminal procedure.</p> <p>Conditional pardons — Remitting a convict to imprisonment under his former sentence — Common law procedure — At common law a prisoner unlawfully at large by reason of the violation of the conditions of a pardon, or otherwise, might be brought to the bar and remanded to imprisonment under his original sentence.</p> <p>Conditional pardons — Remitting a convict to imprisonment under his former sentence — Procedure in conformity to a provision of the pardon itself — In the absence of a valid statutory procedure, and without resort to the procedure of the common law, a convict conditionally pardoned or discharged cannot be remitted to imprisonment under his former sentence, except in conformity to a valid provision in that respect contained in the pardon. If a conditional pardon, accepted by a convict, contains a provision that upon noncompliance with the conditions the convict may be apprehended and remitted to his former custody upon the Governor’s warrant, issued for that purpose, such provision is binding, and the Governor may proceed in accordance therewith.</p>