Volume 74 — Vermont Reports

Cass for personal injuries sustained by the plaintiff in a collision with defendant’s cars at a grade crossing in Chester. Plea, the general issue. Trial by jury at the March Term, 1901, Rutland County, Munson, J., presiding. Verdict and judgment thereon for the plaintiff. The defendant excepted. The undisputed facts show conclusively that the plaintiff was guilty of contributory negligence.

Indictment for criminal defamation. The respondent demurred, and at the March Term, 1901, Washington County, Watson, J., presiding, pending hearing on the demurrer, objected to Judge Watson sitting in the case. This objection was overruled, pro forma, and upon hearing, the demurrer was overruled, pro forma. The respondent excepted.

Trespass and case in the city court of Burlington. Two of the counts in the declaration were for false imprisonment. Plea, to the jurisdiction of these counts. Judgment sustaining the jurisdiction of the city court. The defendants excepted. The ad damnum in the writ was fifty dollars. A justice of the peace has no jurisdiction of an action for false imprisonment, therefore the city court has none.

Assumpsit appealed from the judgment of a justice of the peace. Heard on a motion to dismiss the appeal, at the December Term, Bennington County, Stafford, J., presiding. Appeal dismissed. The defendant excepted.' Neither the ad damnum in the writ, nor the sum demanded by the declaration, nor the specifications or exhibits of the plaintiff on trial, exceeded twenty dollars, and no claim in offset was made by the defendant.

Petition for divorce, with prayer for alimony. Bill granted at the December Term, igoo, Orange County,' Watson, J., presiding. ‘Heard in vacation thereafter on question of alimony, and order therefor denied. The petitioner excepted. The failure to obtain personal service on the libellee, and his failure to appear, are no bar to a decree in the nature of a judgment in rem.

Appeal in chancery. Heard on master’s report and exceptions thereto at the June Term, 1901, Windsor County, Start, Chancellor, presiding. Decree overruling the exceptions and dismissing the bill. The orators appealed. The bill is brought by Prosper B. Slack’s heirs-at-lavv and the representatives of such, against Edna Burton, grantee, and Charles B. Stone, administrator of said Slack.

Indictment for cutting down and destroying a fence owned by one Palmer. Plea, not guilty. Trial by jury at •the June Term, Orange County, Stafford, J., presiding. Verdict, guilty. Judgment and sentence thereon. The respondent excepted. Parol evidence to establish Palmer’s title to the fence was ■inadmissible. V. S. 3580. It was error to allow the state toi ask Palmer who occupied the land on which the fence stood. It was not material to the issue.

Assumpsit, by trustee process, for taxes. Plea, the general issue. Judgment, pro forma, for the plaintiff on an agreed statement of facts at the March Term, 1901, Washington County, Watson, J., presiding. The defendant excepted. The agreed statement shows that the city was both the owner and possessor of this property onf April 1st, 1899. If any person or corporation was assessable on account of it, it was the city of Barre. Y. S. 368. The statute is mandatory.

Habeas corpus. Judgment pro forma on an agreed statement of facts, at the March Term, 1901, Washington County, Watson, J., presiding, 'that relator was lawfully restrained, and remanding him to his former custody. The relator excepted. A11 officer gets his authority from the process which he is serving, and he must follow the directions therein.

Case for injury oar a highway. Plea, the general issue. Trial by jury at the June Term, 1901, Windsor County, Start, J., presiding. Verdict ordered for the defendant and judgment thereon. The plaintiff excepted. Upon all the facts and circumstances, the selectmen, as reasonable beings, fairly understood that the notice was given by the person injured, because she claimed damages. This is a notice. .A notice is to give information of something.

Appear in chancery. Heard at the June Term, 1901, Bennington County, upon the report of a master, Rowell, Chancellor, presiding. Perpetual injunction granted against all the defendants according to the prayer of the bill which was in common form for abating and enjoining a liquor nuisance. The defendants Collins and Putnam appealed. The petition should have been dismissed as against the defendant Putnam.

Appeal in chancery. Heard at the June Term, 1901, Bennington County, upon the report of a master and exceptions thereto', Rowell, Chancellor, presiding. The exceptions were overruled; and a perpetual injunction granted against all the defendants according to the prayer of the bill, which was in common form for abating a liquor nuisance. The defendant Hawks appealed.

Complaint for selling intoxicating liquors in violation of law. Plea, not guilty. Trial by jury at the September Term, 1901, Franklin County, Rowell, J., presiding. Verdict, guilty of one first offense. Judgment and sentence thereon. The respondent excepted. It being conceded that peppermint essence is a genuine medicine and manufactured as such, it cannot be made contraband by the manlier or circumstances of its sale, and no issue of fact was presented. 25 Kansas 751; 37 Am.

D^bT. Plea, general assumpsit in offset. Trial by jury' at the June Term, 1901, Windsor County, Start, J., presiding. Verdict and judgment thereon for the defendant. The plaintiff excepted. The admission of the testimony of Mr. and Mrs. Tracey was error. They testified to the price of board in the neighborhood. Before they could so testify, it should have appeared, affirmatively, that they had the requisite knowledge. They were not called as experts.

<p>Debt on a judgment of the probate court. Heard on an agreed statement of facts at the Ma'rch Term, 1901, Rutland County, Munson, presiding. Judgment for the plaintiff.</p> <p>The defendant excepted.</p> <p>The action is brought by W. W. Stickney as administrator de bonis non of the estate of Gilbert E. Johnson, to- recover the balance found due said estate upon the settlement of the defendant’s account as former administrator thereof. Upon this settlement, the defendant was charged by the probate court with a certain sum as interest on the funds of the estate which he had mingled with his own. It appeared that he had been in partnership with the decedent, and at the time of this settlement had in his hands a certain sum belonging to the partnership, one-half of which was charged to him in his administration account; the plaintiff had received a certain larger sum from, the partnership property, one-half of which was credited to the defendant in this account. The plaintiff had proved the debt sued for against the defendant’s estate in bankruptcy, and had received a dividend thereon.</p> <p>The debt sued for was discharged. In order to bring it within the exception named in the bankruptcy act, it must be shown to be a debt created through some positive, actual fraud involving moral turpitude. Constructive fraud or defalcation is not sufficient. Neal v. Clark, 95 U. S. 704; Henniquin v. Clews, in U. S. 676; Strang v. Bradner, 114 U. S. 555; Forseyth v. Vehmeyer, 177 U. S. 177.</p> <p>The plaintiff proved his debt and took his dividend, and , his debt is thereby barred. The election of one remedy precludes a resort to the other. White v. White, 68 Vt. 161; Farrar v. Powell, 247.</p> <p>The statute exempts from, the operation of the discharge, debts arising from technical trusts. This is of that character. Such was the construction of former enactments on this subject in which an enumeration of such debts was inserted. In the act of 1898 the enumeration is omitted, as all were included in the word fiduciary. In re Leakey, 58 Vt. 724; Haákell v. Jewell, 59 Vt. 91.</p> <p>The proof of the debt is no bar. Stokes v. Mason, 12 N. B. R. 498; Powlet v. Kelley, et al., 69 Vt. 398.</p>

Indictment for larceny of a horse. Plea, not guilty. Trial by jury at the December Term, 1900, Windsor County, Start, J., presiding. Verdict guilty. The respondent excepted. Heal'd on the respondent’s exceptions and petition for a new trial.

Trover. Plea, the general issue. Trial by jury at the June Term, 1901, Lamoille County, Munson, J., presiding. Verdict and judgment thereon for the plaintiff. The defendant excepted. The plaintiff bought the property in question of one Milo Stearns, and paid him for it, but before it was delivered to the plaintiff, the defendant attached it as the property of Milo Stearns, and subsequently sold it on execution.

Audita quEREEa. Plea, the general issue. Trial by jury at the June Term, 1901, Windsor County, Start, J., presiding. Verdict and judgment thereon for the defendant. The. petitioner excepted. The petition is brought to set aside a judgment rendered by a justice of the peace against the petitioner, as trustee, in a suit brought by the defendant against one Moses Eockwood.

Ejectment. Plea, the general issue. Heard upon an agreed statement of facts at the March Term, 1900, Washington County, Tyler, J., presiding. Judgment, pro forma, for the plaintiff. The defendant excepted. The lease contained no covenant against an assignment and the tenant could assign bis interest. Wood’s Landlord & Tenant, 529; Robinson v. Perry, 21 Ga. 183; Cooney v. Hayes, 40 Vt. 482; 1 Pingrey on Real Property, 560; 1 Washburn on Real Property, 442.

Gfnfrar and sprciau assumpsit. Plea, the general issue. Trial by jury at the September Term, 1901, Rutland County, Start, J., presiding. Verdict and judgment thereon for the plaintiff. The defendants excepted. The plaintiff cannot recover upon the promise of the defendants to pay for the support of their father.

Cas® for slander. Plea, the general issue. Trial by jury at the September Term., 1900, Washington County, Rowell, J., presiding. Verdict for the plaintiff. The defendant moved in arrest of judgment. Motion overruled, pro forma, and judgment rendered on verdict. The defendant excepted.

Case for personal injuries. Plea, the general issue. Trial by jury at the December Term, 1899, Windsor County, Tyler, J., presiding. Verdict and judgment thereon for the plaintiff. The defendant excepted.’ The testimony of the expert, McIntyre, was inadmissible. His statement as to -the position to be assumed to get the greatest speed on a bicycle, was based upon a special racing machine. There was no evidence that the plaintiff rode such a machine.

RepeEvin for certain machinery which the plaintiff was installing under a contract of sale, in the mill of the defendant’s intestate at the time of his decease, and which the defendant claimed as part of the assets of his estate. Plea, the general issue. Trial by jury at the December Term, 1899, Bennington County, Stand, J., presiding. At the close of the evidence, the defendant moved for a verdict and an order for the return of the property.

Appeal in chancery. Heard on a master’s report and exceptions thereto, at the December Term, 1900, Lamoille County, Munson■, Chancellor, presiding. Decree for the petitioner. The defendants appealed. The bank held the insurance policy as a pledge, and assumed all the responsibility of such holding. It was bound to protect it from forfeiture. Jones on .Pledges, §§ 403, 414; Schouler on Bailments, 204-207. Dewing v. Scribner, 53 Vt. 1. Story on Bailments, § 332.

Indictment far larceny. Plea, not guilty. Trial by jury at the March Term, 1901,.Washington County, Watson, J., presiding. Verdict guilty. The respondent excepted. The court erred in limiting the cross-examination of Celley. He testified that he told Cooney the next day that the chain was taken. As. bearing on the truthfulness of this testimony, the 'respondent had a right to. find out what he said to Cooney about it.

<p>Generad and spEciad assumpsit on a school district order. Heard on demurrer for misjoinder of defendants, filed by the defendant school district to the special count of the declaration, at the December term, 1901,. Orange County, Taft, C. J., presiding. Demurrer overruled, pro forma, and the special count adjudged sufficient. The defendant school district excepted.</p> <p>The defendant town pleaded the general issue and took no part in the hearing here.</p> <p>There is a misjoinder of defendants, for there is no joint liability. The school district is liable, if at all, by virtue of a contract. The town is liable by. force of the law which imposed upon it the duty to discharge the debt. The creditor had his election to look to either defendant as his debtor, but cannot hold both. Union Stove and Machine Works v. Caswell, 16 L. R. A. 85; Nielson v. Newark, 49 N. J. L. 246.</p> <p>By proceeding against the town the plaintiff has elected to take the benefit of V. S. 667, and by doing so has accepted the substitution of debtors there provided. White v. White, 68 Vt. 161; Fowler v. Bank, 4 L. R. A. 145; Bohancm v. PopCj 42 Me. 93; Hartlamd v. Blackett, 57 Vt. 92; Blaisdell & Barron v. School District, 72 Vt. 63.</p> <p>The relation of the defendants to> this order is like that of a person to a note which he signs or endorses long after it was made, not before being a party to it. Barrows v. Dane, 5 Vt. 161; Knapp v. Parker, 6 Vt. 642; Strong v. Ricker, 16 Vt. 554; Sylvester v. Downer, 20 Vt. 355.</p> <p>The act creating the town system of schools did not release the school district. Blaisdell & Barron v. School District, 72 Vt. 63. It did not effect a novation, because the plaintiff has not consented.</p> <p>The school district cannot be heard to say that there is a misjoinder, because it is liable anyway. V. S. 1179; Powers v. Thayer, 30 Vt. 361; Reynolds v. Field, 41 Vt. 225; 6 Bnc. PL & Pr. 310; Bronson v. Markey, 53 Wis. 98; Brown-son v. Gifford, 8 How.- Pir. 389; Railroad Co. v. Schuyler,, 17 N. Y. 592; Lewis & Pickering v. Williams & Sons, 3 Minn. 151; Cohen v. Ottenheimer, 13 Oregon 224; Willard v. Reas, 26 Wis. 315 and 540; Howard v. Edzvards, 89 Ga. 367; Bennett v. Preston, 17 Ind. 291; Holzmrn v. Hibben, 100 Ind. 338; Little v. Sayre, 7 Hun. 485; Gutridge v. Fanatta, 27 Ohio St. 366; Wood v. Decoster, 66 Me. 542.</p>

<p>Indictment for perjury. Heard on respondent’s demurrer, at the September Term, 1901, Washington County, Munson, J., presiding. Demurrer overruled and indictment adjudged sufficient. The respondent excepted.</p> <p>The indictment does not allege that the law requires the proof to be under oath. This omission is fatal. State v. Rowell, 70 Vt. 405; State v. Bstabrooks, 70 Vt. 412; 16 Ency. PI. & P'r.. 323-4.</p> <p>The oath set out in the indictment is an idle performance. A notary public has no authority to administer it. 2 Whart. Crim. Law, §§'1256-7, 1269; Rambert v. People, 76 N. Y. 220.</p> <p>Perjury can be predicated only upon an oath required by law. V. S. 5079, 5080.</p> <p>The indictment contains all the elements of the crime. It is drawn in compliance with Form 50, V. S. 5417.</p> <p>An indictment is sufficient if the respondent is informed with reasonable certainty of the cause and nature of the accusation against him. State v. Camley, 67 Vt. 324.</p> <p>The oath is authorized by V. S. 5080. State v. Smith, 63 Vt. 208.</p>

App^aIy in chancery. Heard on master’s report and orator’s exceptions thereto', at the June Term, 1901, Tyler, Chancellor, presiding. Exceptions overruled and bill dismissed. The orator appealed. The justice had full authority to allow the ad damnum in the suit at law to be raised. V. S. 1148; Harris v. Belden, 48 Vt. 478; Whitney v. Sears, 16 Vt. 587; Ency. PI. & Pr. 586. If raising the ad damnum was an irregularity, the court of chancery should correct the judgment.

Case for personal injuries. Plea, the general issue. Trial by jury at the September Term, 1901, Orleans County, Tyler, J., presiding. Verdict and judgment thereon for the plaintiff. The defendant excepted. The defendant’s requests to charge relied upon in argument (other than those recited in the opinion), were as follows: 10.

Case; for an assault upon the plaintiff’s wife. Plea, the general issue, with notice of special matter in justification. Trial by jury at the March Term, 1901, Washington County, Watson, J., presiding. Verdict and judgment thereon for the defendants. The plaintiff excepted.

<p>Assumpsit. Plea, the general issue. Trial by court at the September Term, 1901, Franklin County, Rowell, J., pre^siding-. Judgment for the defendant. The plaintiff excepted.</p> <p>The plain language of the receipt required the defendant to return the money deposited with him if Fingold was present at time of trial. Fingold was present. It was Schlarman’s money all the time, and when Fingold appeared Schlarman became entitled to it. McAlman v. Beoington, 53 T. R. A. 597; McFarland v. Wilbuir, 35 Vt. 342.</p> <p>Kelley was compelled to pay more than Schlarman put into his hands. Schlarman agreed to pay him the balance. In. order to correctly interpret the receipt, it is necessary to look into the circumstances under which it was given. The deposit was intended to be full indemnity to Kelley for becoming bail for Fingold. The words “present at the time of trial” are equivalent to “appears at court.” Fingold should have been surrendered to the officers of the court. Converse & Son v. Washburn, 43 Vt. 132; Darling v. Cutting, 57 Vt. 218.</p>

Petition for writ of certiorari. Heard on petition and answer. The defendants constituted the Board of Medical Censors of the Vermont State Eclectic Medical Society. The board of censors having granted the petitioner a license, could not revoke the same without some competent evidence that it had been obtained by fraud. 40 Am. Rep., notes, 35; Spelling’s Ex. Relief s. 2023. The defendants’ answer falls short of showing competent evidence o.f such fact.

Appeal in Chancery. Heard on a master’s report and defendant Emery’s exceptions thereto at the December Term, 1900, Orange County, Watson, Chancellor, presiding. Exceptions overruled and decree sustaining the gift in question. The defendant Emery appealed. A careful examination of the testimony will show that the finding of the master as to the gift, are unsupported except by evidence received under objection. The testimony of Albert and Chester Niles was inadmissible.

Case for personal injuries. Plea, the general issue. Trial by jury at the September Term, 1900, Washington County, Start, J., presiding. Verdict and judgment thereon for the plaintiff. The defendant excepted. It was error to allow the plaintiff to show that there was no flagman at the place where the accident happened. It was a private crossing. The plaintiff knew there was no flagman. The defendant was not obliged to keep a flagman there. 9 J. & S. (N. Y.) 17.

<p>Plea in abatement — Officer’s return — Demurrer—Stipulation</p> <p>A demurrer to a plea in abatement impeaching an officer’s return good on its face, will be sustained, though the parties stipulate that the ■question shall be as to the sufficiency of the service.</p> <p>When pleadings close in a demurrer, no facts will be treated as in the ease except such as appear in the pleadings and are well pleaded.</p>

Appbab from Probate Court, District of Windsor. Heard on a commissioner’s report and exceptions thereto; at the December Term, 1900, Windsor County, Start, J., presiding. Judgment, pro forma, that the trustee was chargeable with the fund in question. The trustee excepted. The commissioner finds that the trustee acted in good faith. It is the duty of the court to sustain his action in the absence of negligence on his part. 2 Beach on Trusts and Trustees, 1120 and cases.

Appeae in Chancery. Heard on bill and answer, cross-bill, answer, replication and special master’s report, at the September Term, 1902, Franklin County, Stafford, Chancellor. Cross-bill dismissed and decree for the orator. The defendant appealed.

Writ or Error to review a judgment rendered for the defendant in error at the June Term, 1900, Caledonia County, Taft, C. J., presiding. The assignments of error are, (1) That judgment should have been for the defendant in the original suit as shown by the record; (2) That the court should have dismissed the new counts. There can be no recovery unless there is a count in the declaration applicable to the cause of action.

AppEae from the decision of commissioners in the appraisal of land taken for railroad purposes. To the defendant’s plea- in abatement, the plaintiff demurred. Demurrer sustained and plea adjudged insufficient at the August Term, 1901, Grand Isle County, Rowell, J., presiding. The defendant excepted and the plaintiff moved to dismiss the exceptions.

Trespass under V. S- 4626. Plea, the' general issue. Trial by court at the September Term, 1899, Franklin County, Start, I., presiding. Judgment for the plaintiff. The defendant excepted. Judgment should have been for the defendant because the land was not cultivated or enclosed.

Special assumpsit on a fire insurance policy. Plea, the general issue, with notice of special matter in defence. Trial by jury at the March Term, 1901, Washington County, Watson, J., presiding. Verdict ordered for the defendant. Judgment thereon. The plaintiff excepted. The provision of the policy relative to foreclosure proceedings is void as against public policy. If upheld, it will enable insurance companies to avoid their policies on slight pretexts.

Trover for certain trees cut on land mortgaged to the plaintiff. Plea, the general issue. Heard on a referee’s report and the defendants’ motion to recommit the same, at the October Term, 1901, Essex County, Taft, C. J., presiding. Motion denied and judgment for the plaintiff. The defendants excepted.

Assumpsit for expenses incurred in the support of paupers. Plea, the general issue. Heard upon the report of a referee and the defendant’s motion to recommit the same, at the March Term, 1900, Rutland County, Rowell, J., presiding. Motion overruled and judgment, pro forma, for the plaintiff. The defendant excepted. The paupers, for whose support this suit is brought, were not transient in Rutland, but were residing there.

Indictment for adultery. Plea, not guilty. Trial by jury at the June Term, 1901, Orange County, Stafford, J., presiding. Respondent’s motion for a verdict of not guilty overruled. Verdict and judgment of guilty. The respondent excepted. The state offered, as presumptive evidence of the respondent’s marriage, a copy of the record of the marriage of James F. Kimball to Eillian E. Stoddard, duly certified by the clerk of the town of Colchester.

CasF for personal injuries. Plea, the general issue. Trial by jury at the March Term, 1901, Orleans County, Tyler, J., presiding. Verdict ordered for the defendant, and judgment thereon. The plaintiff excepted. Did the court err in ordering a verdict? We discuss this question first upon the assumption that the law of Vermont is to control.

DUbT for taxes under V. S. 555. Plea, nil debet. Heard on an agreed statement of facts at the December Term, 1901, Caledonia County, Munson, J., presiding. Judgment, pro forma, for the plaintiff. The defendant excepted. The question for consideration, is the meaning of the word “deposits” as used in V. S. 582, 583, 584, 4066 to 4131. Deposits, as spoken of in all these sections, are savings deposits, or savings and trust deposits.

Case for slander. Plea, the general issue, with notice of special matter in justification of a part of the words charged. Trial by jury at the September Term, 1899, Washington County, Watson, J., presiding. Verdict and judgment thereon for the plaintiff. The defendant excepted. The declaration contained two counts. The notice filed by the defendant did not justify the gist of the charge.

Indictment for assault with intent to kill and murder. Plea, not guilty. Trial by jury at the September Term, 1899, Washington County, Watson, J., presiding. Verdict and judgment, guilty. Sentence imposed and execution thereof ordered forthwith. The respondent excepted. The issue was squarely made early in the trial after counsel were employed, that respondent was insane at the time of trial.

Casb for personal injuries. Plea, the general issue. Trial by jury at the September Term, 1900, Orleans County, Taft, C. J., presiding. Verdict and judgment thereon for the plaintiff. The defendant excepted. The presence of a side ladder upon the car concerned in this accident is not determinative of the defendant’s liability. It was not the cause of the injury, and the injury must result from the presence of the side ladder in order to make the defendant liable.

Information for an assault with intent to commit rape. Plea, not guilty. Trial by jury at the June Term, 1901, Windsor County, Start, J., presiding. Verdict, guilty, and judgment thereon. The respondent excepted. The court erred in permitting the complainant to testify to the episode about her son, Julian, having seen respondent in a tree. It was purely hearsay. It had a tendency to prejudice the jury against the respondent.

Complaint for violation of an ordinance of the city of Montpelier, appealed from the municipal court of that city. The respondent’s motion to quash and his demurrer to the complaint having' been overruled, pro forma, he pleaded not guilty. Trial by jury at the March Term, 1901, Washington County, Watson, J., presiding. Verdict guilty. Motion in arrest of judgment overruled. Judgment on verdict, and respondent sentenced to pay a fine to the state. The respondent excepted.

General assumpsit Oil a joint and several note, dated June 23, 1894. Pleas, the general issue, payment and offset. Trial by jury at the June Term, 1900, Orange County, Stwrt, J., presiding. Special findings that there was $74.70 due on the note in suit, that Mrs. Mary Ann Locke signed the note as surety, and that there was due Blake Locke, under the plea in offset, $74.65.

Indictment for a breach of the peace. Plea, former conviction before a justice of the peace. Respondent adjudged guilty on an agreed statement of facts filed, at the December Term, 1900, Orange County, Watson, J., presiding. The respondent excepted. It appeared from the agreed statement that the assault charged in this indictment was the same one with which the respondent was charged in the prosecution before the justice of the peace.

General ASSUMPSIT with a count on a promissory note. Plea, the general issue. Trial by jury at the December Term, 1901, Caledonia County, Munson, J., presiding. Verdict and judgment thereon for the defendant. The plaintiffs excepted.

Trespass quare clausum, with a .count in trespass de •bonis. Plea, the general issue. Trial by jury at the March 'Term, 1901, Orleans County, Tyler, J., presiding. Verdict and judgment thereon for the plaintiffs. The defendant ex- ' uepted. The defendant brought a petition for a new trial to the October Term, 1901, of this court, which was heard with the •exceptions herein.

<p>Railroads — Condemnation proceedings — Regularity of — Title against by adverse possession — Rstoppel.</p> <p>When a railroad company has taken land by condemnation proceedings and paid the damages awarded therefor by commissioners, according to its charter and the laws of the state, and the owner has accepted the damages and taken no< appeal, it is too1 late after a lapse of nearly fifty years to raise the question of the necessity of the taking.</p> <p>Objection to the regularity of the condemnation proceedings for the company’s failure to furnish the owner with a plan or description of the land taken, as required by law, is waived by accepting payment of the damages therein awarded.</p> <p>Lands of a railroad contiguous to the center line of the recorded locating survey, lawfully taken for the purposes of its roadway, are within the provisions of V. S. 3745, and cannot be acquired by adverse possession.</p> <p>This section does not grant a special privilege to a private corporation and is not in contravention of Art. 7, c. 1 of the 'Constitution of the state.</p> <p>To estop one, his conduct must not only have been such as would lead the other party to believe the fact was otherwise than it was, but the latter must show affirmatively that he has relied upon the conduct of the former, and been induced thereby to act or refrain from acting.</p>

General assumpsit. Pleas, the general issue and offset. Trial by jury at the December Term, 1901, Benningto-n County, Rowell, J., presiding. Judgment for the defendant on verdict ordered. The plaintiff excepted. The defense invoking the doctrine of public policy is always an ungracious one, and is never made out unless all other defenses fail.

Trespass quare ceausum. Plea, the general issue. Heard on a referee’s report and the defendant’s exceptions thereto', at the September Term, 1901, Windham County, Stafford, J., ¡presiding. Exceptions overruled, pro forma, and judgment, pro forma, for the plaintiff. The defendants excepted. In trespass q. c. f. the plaintiff must have either title or possession. Oatmcm v. Ponder, 43 Vt. 462. This plaintiff had neither.

<p>Promissory note — Place of payment — Interest after maturity —Conduct of payee.</p> <p>A promissory note which does mot specify thro place of payment, but is executed and delivered in the town of the maker’s residence to- a person residing without the state, is, by legal intendment, payable in such town.</p> <p>The maker of such a note is not obliged to go into another state to make tender of payment.</p> <p>Although interest is, without express contract therefor, generally allowed after the maturity of the debt by way of compensation in damages for the debtor’s default, it will not be allowed in equity when the non-payment is due solely to the fault of the payee.</p>

<p>Appeal in Chancery. Heard oil a special master’s report and the defendants’ exceptions thereto at the September Term, 1901, Chittenden County, Watson, Chancellor, presiding. Decree fixing the amount due the defendants at $589-97- The orator appealed.</p> <p>The defendants should not have credit for the repairs. Whitney’s right to rental of the building after April, 1894, was a naked permission not carrying with it a right to repair at the owner’s expense. Brown v. Burrington, 36 Yt. 40; Sanders v. Wilson, 34 Vt. 318; Morgans. Waibridge, 56 Vt. 405.</p> <p>The rent of the land was probably allowed defendants by mistake. It was no part of the property in suit, and defendant’s lien did not cover it.</p> <p>The taxes should have been disallowed. The building became a parf of the realty in 1894. Thereafter, assessment against Whitney was illegal, and not a lien. V. S. 405, 424. Defendants paid it at their risk, and no rule of law sanctions allowance of voluntary payment of a void claim. Further, this, was paid after commencement of this suit, giving defendants full notice of the peril of payment.</p> <p>The charge for rent to- May 21, 1898, should bear interest from that date. Interest being allowed on the credit side of the account, is- should also be allowed on the debit side. This item should also cover rent to date of filing the mandate. 18 Ency. Daw, 303. The injunction did not stand in the way o-f renting or occupying the building. The orator should recover this, rental as damages for the injury caused by the defendants’ acts. Allison v. Chandler, 11 Mich. 548.</p> <p>Tlie item of cost of restoring the building should be made to cover all damage which has come to it. This being a suit in- equity, all items of damages must be passed upon here or never. Chapman v. Smith, 9 Vt. 153; Sewer v. Durant, 39 Vt. 103. Want of care by the orator, if any, would not relieve the defendants. A wrong doer is responsible for consequential damages, and is not relieved by the fact that the consequences of his act could have been prevented or diminished by care of the injured party. Phares v. Stewart, (Ala.) 33 Am. Dec. 317; Kirby v. Douglas, 75 111. 443; Stevens v. Dudley, 56 Vt. 168; Bhrgott v. Mayor, 96 N. Y. 264; Hughes v. McDonough, 43 N. J. L. 452; McDonald v. Swelling, 14 Allen 292; Barbu v. Reese, 60 Miss. 906; Derry v. Plitner, 1x8 Mass. 131; Bin-ford v. Johnston, 82 Ind. 428; Bten v. Luyster, 60 N. Y. 252.</p> <p>The injunction should stand free of condition of payment to defendants. Their lien gives defendants no' right to remove the building, so the orator is entitled to his injunction.</p> <p>The master finds that the repairs were needed and benefited the building to the extent of their cost. A part of the expense of repairs was paid to1 Clapp’, the orator’s agent. The orator was willing to have the benefit of the repairs, but refused to- pay for them, and raised the rent by reason of them. Morgan v. Walbridge, 56 Vt. 405.</p> <p>The taxes were paid for the orator’s benefit and should be allowed.</p> <p>The defendants should only be charged with the rents received. The mandate speaks of rents and profits as “they .accrire and are collected.” If defendants collected none, none should be charged to them. The orator never demanded any rent -of them. The report fails to: show that the use of the building was of any value to them1, or that they received any rents or profits. The question of rental value was not submitted to the master by the mandate. At best, the orator could only be allowed the amount agreed to between Whitney and Englesby — nine dollars per month.</p> <p>It is also insisted that, under the mandate, the item of damage to the building occasioned by its attempted removal should be disallowed.</p> <p>Under the injunction, the defendants had no right to. interfere with the building by occupying it, by leasing it, or otherwise. So by the orator’s own act he prevented their being chargeable for any rents after the injunction was granted.</p>

<p>Contract of sale — Faihire to deliver — Excuse—Request to-charge — Evidence—Rule of damages.</p> <p>A request to charge is sufficiently complied with if the charge as given recognizes the principle contended for, in such a way as to. make it clear to the jury.</p> <p>An excessive demand by. one party to a contract will not excuse a. proper performance by the other party.</p> <p>One under contract to deliver a certain quantity of goods each month in not excused .therefrom by inability to produce them fast enough to (Supply his customers generally.</p> <p>A notice that a contract is at an end constitutes a breach of the contract by the party giving it, unless the other party is already in default. It will not be assumed that the jury misconstrued a letter received in evidence, in the absence -of any evidence warranting such 'erroneous construction.</p> <p>In an action by tbe buyer for failure to deliver goods according to the contract of sale, a request to charge that -if thé delay was due, in whole or in part, to the scarcity of cars, the defendant was not. responsible for it, is properly refused.</p> <p>T-he rule as to the measure -of damages adopted at the suggestion of' the plaintiff in the admission of his testimony, and relied upon by the defendant, should be adhered to to the end of the trial.</p> <p>Upon the breach of a contract, a cause of action arises which cannot be defeated or affected by a subsequent offer to perform.</p> <p>In an action for damages for the non-delivery of goods according to contract, in which the plaintiff claims that after the contract was made the price of -the goods advanced, and the defendant failed to make delivery to him that he might ship his goods to others at the advanced price, evidence of the market price of the goods during the whole period of the contract, is admissible.</p>

<p>Non-resident insurance agents — License of — Statutory requirements — ConstitutionaUty of.</p> <p>A non-resident is not entitled to a license to transact insurance business in this state as the agent of a foreign insurance company; and a refusal of such license does not deprive him of any rights guaranteed by the Federal Constitution.</p>

<p>M or tgage — M erger — Pleading—D emurrer — Caches.</p> <p>A bill in foreclosure proceedings which shows that certain persons were tenants in common of a second mortgage interest in certain premises when orue of them paid the first mortgage, and claims that the payor thereby became subrogated tO' all the rights of the first mortgagee, is not demurrable.</p> <p>Equity will, when justice requires, treat a transaction as a purchase, rather than a payment of a decreei of foreclosure, though the redemption certificate purports to¡ be in full discharge of the decree. The defense of laches cannot be interposed by demurrer.</p>

<p>Agreement to prepay freight■ — Bvidence—Argument of counsel — Motion in cei'rest — Motion to- set aside verdict.</p> <p>In an action for freight charges, wherein the plaintiff relies upon a special agreement made by the defendant before the goods have gone forward, but after a bill of lading has been issued providing that the freight should be paid by the consignee, the bill of lading is admissible as a step in the transaction.</p> <p>In such an action, evidence that it is the custom of the plaintiff to so indicate on the bill of lading when freight is to be prepaid, is admissible, though the witness admits that ha never before shipped goods to a prepay station.</p> <p>In such an action, evidence that the defendant had no title to- the goods after they were placed on the car, is admissible.</p> <p>In such an action, it is error to- allow defendant’s counsel, in argument, to state that the defendant had lost the chance to protect himself for the freight, though the evidence shows that the plaintiff delivered tine goods to- the consignee without demanding the freight. i</p> <p>The record considered under a motion in arrest does not include evidence.</p> <p>A motion to set aside a -verdict for which no ground is stated, is properly overruled.</p>

Appeal in Chancery. Heard upon a special master’s report at the March Term, 1901, Franklin County, Start, Chancellor, presiding. Decree disallowing the claim. The claimant appealed. Thie agreement made by the bank that it would not press for payment of any of the paper of C. P. Stevens & Co., of Troy, either valid or disputed, afforded a sufficient consideration for the drafts. Lamson v. Lcmnson, 52 Vt. 595. The acceptor cannot plead want of consideration.

<p>Penal statutes — V. S. 2358-2359 — Construction—Duties of executor — Pleading.</p> <p>V. S. 2359 is a penal statute, and in an action for the forfeiture therein provided, the declaration must show that the action is founded thereon and contain a substantive allegation that the offense charged was committed against the form of the statute.</p> <p>This statute, which is a continuation of R. L. 2052, changes the form of action in such cases from debt to case; but this change relates to the remedy only, .and the statute is construed to be retrospective in its operation, since to do so impairs no right and does no wrong.</p> <p>A declaration is not double when its allegations refer wholly to the defendant’s duty under a certain statute réferred to therein as • the basis of recovery, and show that he had no duty to perform under another statute also so referred to, since the allegations regarding the latter may be rejected as surplusage.</p> <p>A declaration under V. S. 2359 which sufficiently alleges that an executor, having possession of the will, did not present it to the Probate Court within the time provided by law, that he did not within such time signify to such Court his acceptance or refusal.of the trust, and that he did not give a satisfactory excuse to such Court for his neglect to so signify such acceptance or refusal, is sufficient, without an averment that he failed to give a satisfactory ,■excuse to such Court for his failure toi so present the will; since the unexcused neglect of any of the duties required of him by this statute subjects him to the forfeiture therein prescribed.</p> <p>In an action for a penalty created by statute, a declaration in the language of the statute is sufficient, if every fact necessary to constitute the offense is thereby charged or necessarily implied.</p>

<p>Action under V. S. 2359, to recover the penalty therein provided. Heard on the defendant’s demurrer to the declaration at the June Term, 1901, Start, J., presiding. Demurrer overruled and declaration adjudged sufficient. The defendant excepted.</p>

Appeae in Chancery. Heard on the report of a special master at the March Term, 1902, Washington County, Start, Chancellor, presiding. Decree, pro forma, dismissing the bill. The orator appealed. The orator is entitled to subrogation, since he is a “purchaser who1 has extinguished an incumbrance upon the estate which he has purchased.” Sheldon on Subrogation, s. 3.

Assumpsit. Plea, the general issue. Heard on a referee’s report at the October Term, 1901, Essex County, Taft, C. J., presiding. Judgment for the plaintiffs for the larger sum named in the report. The defendant excepted. The case is prematurely brought. The cases Dyer v. Jones, 8 Vt. 205, and Kelley & Bragg v. Bradford, 33 Vt. 35, relied upon by plaintiffs, only allow recovery in a proper case on a quanttm meruit.

Appeal in Chancery. Heard on the report of a special master and the orator’s exceptions thereto, at the March Term, 1902, Rutland County, Watson, Chancellor, presiding. Decree, pro forma, overruling the exceptions and dismissing the bill. The orator appealed. The conveyance being without consideration, it will be set aside in favor of creditors who are thereby prevented from getting their pay, although there was no actual fraud on the part of the grantor or the grantee.

<p>Indictment for rape. Plea, not guilty. Trial by jury at the December Terml, 1901, Windsor County, Stafford, J., presiding. Verdict, guilty. Judgment and sentence thereon. The respondent excepted.</p> <p>That part of the charge excepted to- is as follows:</p> <p>“If you find the defence, or attempted defence, is a false one, of course he knows it, and,if you should.be satisfied it is false, that would be evidence tending to show that he is guilty, because if he were not guilty, he would not attempt, probably, to put in a false defence. So whenever an alibi is attempted to be proved and is false, it may be treated by the jury as positive evidence of guilt. But it is a question for you to say whether upon the evidence you have a reasonable doubt about his having been there at the time claimed, and if you have a reasonable doubt, as I said before, he is entitled to the benefit of it, and entitled to be acquitted.”</p> <p>It was error to charge that the attempt to prove an alibi and that attempt failing, was “positive” evidence of guilt. “Positive” evidence, is evidence to the precise point in issue, as in the case of homicide, that the accused caused the death. Com. v. Webster, 5 Cush. 310; People v Cronin, 34 Cal. 202; People v. Morrill, 60 Cal. 144, 2 Rice Ev. 767.</p> <p>As said by RedEiEed, C. J., in State v. Williams, 27 Vt. 726, the introduction by the respondent of a fabricated alibi “has no direct tendency to establish the main charge.” To the same effect is State v. Ward, 61 Vt. 194; 1 Best on Ev. s. 27; 1 Greenl. Ev. 13.</p> <p>A false alibi is evidence of guilt and has been too many times so held to be successfully questioned now. The charge was correct. Whar. Crim. Law, 715; State v. Williams, 27 Vt. 724; State v. Wood, 61 Vt. 153; State v. Totten, 72 Vt. 73.</p>

Case and trover for goods distrained and sold for taxes. Plea, the general issue. Trial by jury at the March Term, 1902, Washington County, Start, J., presiding. Verdict ordered for the defendant, and judgment thereon. The plaintiff excepted. T. J. Deavitt and Bdward H. Deaviit for the plaintiff. The burden of proof is on the defendant, the collector. Fie must show a strict and literal compliance with the requirements of the statute.

Appear in chancery. Heard on a special master’s report at the March Term, 1901, Washington County, Watson, Chancellor, presiding. Decree, pro forma, dismissing the bill. The orator appealed. The Perry Manufacturing Co., a partnership consisting of Fred H. Perry, Dean G. Kemp and Andrew J. Howe, and the individual members of the firm, were adjudged insolvent, and the orator was duly elected their assignee.

General assumpsit. Pleas, the general issue and statute •of limitations. Heard on a referee’s report at the August 'Term, 1901, Grand Isle County, Rowell, J., presiding. Judgment for the plaintiff for the larger sum named in the report. The defendant excepted. The contract under which the plaintiff was engaged implied that the deed of an interest in the farm was contingent on the fulfillment on the plaintiff’s part of his undertaking to pay off the mortgage.

Generar and spECiar assumpsit. Pleas, the general issue and statute of limitations. Replication traversing the special plea to the first count; and, as to‘ the second and third counts, that the notes therein declared upon were secured by real estate mortgage. Demurrer thereto. ■ Heard on demurrer at the September Term, 1901, Washington County, Start, J., presiding. Demurrer sustained, pro forma, special replication adjudged insufficient, and judgment for the defendant.

General assumpsit. Plea, the general issue. Heard on a referee’s report at the December Term, 1901, Lamoille County, Start, J., presiding. Judgment, pro forma, for the plaintiff. The defendant excepted. The parol evidence in regard to the inscription was admissible for the purpose of determining what the contract in issue was and the true intent and meaning of it. The contract is silent as to the kind and character of the letters of the inscription.

General assumpsit on an accident insurance policy. Pleas, the general issue and three special pleas in bar. Replication traversing the pleas. Heard on an agreed statement of facts at the December Term, 1901, Caledonia County, Munson, J., presiding. Judgment, pro forma, for the plaintiff. The defendant excepted.

Generar assumpsit commenced before a justice of the peace. The defendant’s motion to dismiss the plaintiff’s appeal was overruled at the March Term, 1902, Chittenden County, Stafford, J., presiding. The defendant excepted. No appeal lies from the judgment of a justice in a civil case when judgment is rendered by non-suit. V. S. 1298. Non-suit is capable of three interpretations: 1. Verdict directed by the court when plaintiff fails to appear when called. 2.

Information for grand larceny. Plea, not guilty. Trial by jury at,the December Term, 1901, Windsor County, Stafford, J., presiding. Verdict, guilty; judgment and sentence thereon. The respondent excepted. It was error for the prosecuting counsel to comment on the fact that respondent had seen fit to avail himself of his privilege not to testify. State v. Cameron, 40 Vt. 565. No inference can be drawn from his omission to testify. Com. v. Hanley, 140 Mass. 457.