Volume 75 — Vermont Reports

Petition for an extent appealed by the plaintiff from the judgment of a justice of the peace. Trial by Court at the September Term, 1901, Rutland County, Start, J., presiding. Judgment for the plaintiff. The defendant excepted. The petition must show that the collector’s neglect is unlawful and must contain all the averments necessary to show that fact.

Assumpsit under V. S. 3846. Plea, the general issue. Trial by jury at the September Term, 1901, Rutland County, Start, J., presiding. Defendant’s motion for a verdict overruled. Judgment, pro forma, for the plaintiff, on special findings by the jury. The defendant excepted. A highway surveyor cannot accept a dedication on behalf of the town, without directions from the selectmen. Hyde v. Jamaica, 27 Yt. 443; Folsom v. Underhill, 36 Vt. 580.

Ineormation for selling cider contrary to law. Plea, not guilty. The respondent was adjudged guilty on facts conceded at the December Term, 1901, Windsor County, Stafford, J., presiding. The respondent excepted.

Claflin. J. EL Bass and Orra Bass, proponents. Elmer E. Claflin and Bertha E. Blanchard, contestants. Trial by jury at the June Term, 1901, Orange County, Stafford, J., presiding. Verdict for the contestants. The proponents excepted. To show knowledge, learning, skill or capacity in the person who made and superintended the execution of this will, is certainly legitimate. Winchelsea v. Wmchope, 3 Russ. 441 ; Roberts v. Welch, 46 Vt. 164.

Appear from the decision of commissioners on the claim presented by J. H. Thorp against the Estate of Thos. W. Thorp, and the claims presented by IraW. Thorp, the administrator, in offset thereto. Heard on the report of a referee and exceptions thereto at the March Term, 1901, Chittenden County, Stafford, J., presiding. Judgment for the claimant. The estate excepted.

Petition Eor writ oe prohibition. Heard on pleadings and testimony at the October Term, 1901, of this court, sitting for the County of Chittenden. Ever since Smith v. Creme, 12 Vt. 487, it has been understood that a justice has no power to enter a non-suit, (unless the statute expressly gives it), unless the party consents. Even the county court cannot compel a plaintiff to submit to a non-suit simply because his evidence appears to be insufficient.

Appeal in chancery. Heard on the report of a special master and the orators’ exceptions thereto at the December Term, 1900, Windsor County, Start, Chancellor, presiding. Decree dismissing the bill. The orators appealed. The circumstances under which the additions to the cemetery were made, including the fact that the several additions were owned by descendants of Consul Jarvis, clearly indicate a dedication of the same to the purposes specified in the original grant.

Heard on the report of a referee, the appellants’ motion to recommit the same and exceptions thereto, at the March Term, 1902, Franklin County, Tyler, J., presiding. Held: and upon redemption of that mortgage in Merritt Sowles’ hands, it- left him with no further interest in the property. The insolvent cannot question, the wisdom- of the compromise of the United States judgment.

Cass por negligence. A demurrer to the declaration having been overruled, the defendant pleaded the general issue. Trial by jury at the March Term, Rutland County, 1901,, Munson, J., presiding. Verdict and judgment thereon for the plaintiff. The defendant excepted. The doctrine of respondeat superior does not apply, since the deféndant was acting in a governmental capacity, and no liability can be imposed upon the town except by statute.

TrovEr for a sewing machine. Plea, the general issue. Trial by jury at the December Term, 1900, Caledonia County, Taft, C. J., presiding. The court ordered a verdict for the plaintiff for the value of the machine, and only submitted to the jury the question of its value. Judgment on verdict. The defendant excepted. It was error to allow the plaintiff to testify that she was the owner of the machine.

General assumpsit on an accident insurance policy. Pleas, the general issue and payment. - Trial by jury at the June Term, 1901, Caledonia County, Tyler, J., presiding. Judgment for the defendant on verdict ordered. The plaintiff excepted. It was error to- order a verdict for the defendant on the ground that the plaintiff was not in the exercise of due diligence.

Case. Heard on the plaintiffs special demurrer to the defendants’ rejoinder at the MarchTerm, 1902,Franklin County, Tyler, J., presiding. Demurrer sustained, pro forma, and rejoinder adjudged insufficient. The defendants excepted. The plea of the statute of limitations is a bar to the action uniless the plaintiffs can escape its effect by virtue of V. S. 1214. This statute does not apply in any case where the plaintiff voluntarily abandons his first suit.

Appeal in Chancery. Decree was rendered in the cause in January, 1900, and various proceedings were had in order, that the defendants might obtain a hearing in the Supreme Court, but without avail. An appeal was dismissed for that it was not taken within the time required.

GenERAE assumpsit. 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 plaintiff excepted. It was not necessary that the defendant should know of the falsity of his statement relative to the settlement of the Grey, Howe & -Stebbins claim. If the plaintiff was damaged by the false statement, he is entitled to relief.

Case; for personal injuries. Plea, the general issue. Trial by jury at the September Term, 1901, Washington County, Munson, J., presiding. Verdict and judgment thereon for the plaintiff, and he excepted. It was material and admissible to show how severely the plaintiff was injured. Dr. Chandler should have been allowed to give his opinion of the plaintiff’s chances of recovery, formed at the time he saw him shortly after the accident. Railroad Co. v. Cassell, 66 Md. 419.

<p>A dministraitor■ — A ccounting.</p> <p>An administrator is chargeable with the full cash price for which property of the estate is sold, though through error a less sum is actually received.</p>

Appeal in Insolvency. Heard on an agreed statement of facts at the March Term, 1902, Rutland County, Watson, J., presiding. Judgment, pro forma, for the claimant. The assignees excepted. The plaintiff’s claim was not seasonably presented to the Court of Insolvency. On January 10, 1900, the third meeting of the creditors was held. The estate was finally closed on that day. The dividend was ordered, but the amount was not computed.

Trespass and Trover. 'Plea, the general issue. Trial by jury at the December Term, 1901, Start, J., presiding. Judgment for the defendant on verdict ordered. The plaintiff excepted. The town is liable, though the action is trespass. The case tends to show that the town by its duly authorized agents interfered, directed, and assumed control of the collector’s actions.

Case for injuries received through the insufficiency of a highway bridge. The defendant demurred to the declaration at the March Term, 1902, Washington County, Start, J., presiding. Demurrer overruled, pro forma, and declaration adjudged sufficient. The defendant excepted. The plaintiff must be free from contributory negligence, and this must be established as an affirmative fact.

Trespass quare ceausum, trespass de bonis, and trover, with ad damnum in each count $20.00, appealed from the judgment of a justice of the peace. At the March term, 1902, Orleans County, Munson, J., presiding, the defendant’s demurrer for misjoinder of counts was sustained. Thereupon, by leave of Court, the plaintiff filed a new declaration in trespass and trover with ad damnum in each count $100.00, which the defendant moved to dismiss.

Hathaway. Trial by jury at the June Terra, 1902, Windsor County, Haselton, J., presiding. Verdict and judgment thereon sustaining the will. The defendants excepted. The trial Court erred in admitting the wife of the person named as executor in the proposed will as a witness in support thereof. Crocker v. Chase’s Bstate, 57 Vt. 413. It may be claimed that a person merely named as executor and not duly appointed is not entitled to act as proponent.

Heard on an agreed statement of facts, at the March Term, 1902, Rutland County, Watson, J., presiding. Judgment disallowing the will. The proponent excepted. It appears that the testatrix attempted to make certain changes in her will without observing the required formalities. An interlineation is not a cancellation or ani obliteration; nor do erasures in wills amount to cancellation, obliteration or revocation. These are at mlost but attempts to change the will.

RSpI/Evin for goods unlawfully taken and detained. Heard on the defendant’s motion to dismiss for want of jurisdiction, at the March Term, 1902, Washington County, Hasel-ton■, J., presiding. The Court sustained the motion and rendered judgment for the return of the goods replevied and for the defendant to recover one cent damages and costs.

Appear in Chancery. Heard on demurrer to the bill at the September Term', 1902, Washington County, Watson, Chancellor.. Demurrer sustained. The orator appealed. The deed of May 4, 1851, created an easement in the dooryard. Cross v. Pike, 59 Vt. 324; Hale v. Barrows, 22 Vt. 240; Wash. Easements, 511; Rowbotham v. Wilson, 8 E. & B. 143; Crawford v. Neff, 3 Walk. 61. The three things to be considered are the deed, the situation of the parties, and .the purpose of the grant.

<p>Information for Bigamy. Plea, not guilty. Trial by jury at the June Term, 1902, Windsor County, Haselton, J., presiding. Verdict, guilty; and judgment thereon. The respondent excepted.</p> <p>The State proved the respondent’s marriage at Bethel, Vt., on December 28, 1901, to one Isabel Palmer, and his previous marriage at Whitehall, N. Y., on March 23, 1899, to one Lenora Whitmore, who wasi still living. The respondent claimed that the Whitehall marriage was void, because within three years prior thereto a former wife, then a resident of Whitehall, had obtained a divorce from him in this State for a cause other than adultery, and the law of New York prohibited the remarriage of a libellee in divorce proceeding's for a period of three years. It.was in support of this claim that the evidence referred to in the opinion was offered.</p> <p>This case is very similar to State v. Shattuck, 69 Vt. 403 ; in that case, however, the marriage in dispute was contracted in New Hampshire, and no evidence was offered that the law of that State restricted the marriage of the guilty party in divorce proceeding's. In this case, the evidence excluded was offered to supply this deficiency.</p> <p>It is shown that the law of New York grants divorces for adultery only. The law of this State grants divorces for other causes, but as to the marriage of the guilty party, the laws of both States are similarly restrictive — the law of that State restricting the marriage of the guilty party divorced for the cause recognized there, and the law of this State restricting the marriage of the guilty party divorced for the causes recognized here.</p> <p>These statutory provisions established for the purpose of public policy have the same weight and authority as the common law, and should have the samé consideration from the Court.</p> <p>The Whitehall marriage was valid. State v. Shattuck, 69 Vt. 403; State v. Richardson, 72 Vt. 49. By the New York law, the marriage of a divorced party is only prohibited when the divorce is granted for adultery. The divorce in this case was for a cause other than adultery.</p>

Case eor Negligence. Pleas, the general issue and four special pleas in bar. Heard on the plaintiff’s general demurrer to the defendant’s fourth and fifth pleas, at the June Term, 1902, Orange County, Rowell, C. J., presiding. Demurrer overruled and pleas adjudged sufficient. The plaintiff excepted. The fourth plea is. insufficient, because it is apparent that the causes of action in the Allen suit and in this suit are not the same.

<p>Adverse possession — Elements of — Permissive use.</p> <p>Tbe open, notorious and continuous talcing of water from a spring, for a period of more than fifteen years, is permissive, and not adverse and under a claim of right, when it is consistent with another’s title, though no express license is given.</p>

Appeal in Chancery. Heard on the defendant’s demurrer to the bill of complaint, at the September Term, 1902, Washington County, Watson, Chancellor. Decree, pro forma, sustaining the demurrer and dismissing the bill. The orator appeals. Since the real estate was conveyed to Maria A., she be-' came primarily liable to pay the mortgage thereon. She was the principal and her husband surety. Cook v. Bherage, 64 N. E. 603; Stevens v. Goodenough, 26 Vt. 676.

<p>''Rape — Evidence—Instructions—Reading evidence to jury— New trial — Newly discovered evidence — Character of— Sufficiency.</p> <p>On the question of the genuineness of a letter, evidence that certain statements therein are false, is admissible, though such statements are merely incidental to the part relied upon as evidence.</p> <p>It was not error to charge that all evidence in the case was “real” evidence to be considered and weighed by the jury.</p> <p>That the respondent was not, at the time when the crime was committed, at the place where he claims to have been, may be considered as evidence of his guilt.</p> <p>It is in the discretion of the trial Court to grant or deny a request of the jury to have certain evidence read; and if granted, it is sufficient if the Court complies with the request as made.</p> <p>A new trial will not be granted on the newly discovered evidence of an apparently unreliable witness.</p> <p>Nor will a new trial be granted, even in a criminal case, upon newly discovered evidence to impeach the general reputation for truth and veracity of one of the State’s witnesses, when the impeaching and sustaining evidence are of about equal weight.</p> <p>A supplemental petition for a new trial, filed by leave of this Court, is denied for insufficiency of the newly discovered evidence (g. v.) upon which it is predicated.</p>

General and Special Assumpsit. Pleas, the general issue and four special pleas in bar. Trial by jury at the September Term, 1902, Chittenden County, StartJ J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The motion for a verdict should have prevailed, because if the note was obtained by fraud, there was no offer to rescind.

Appeal in Chancery. Heard on the defendants’ demurrers to the bill, at the December Term, 1902, Bennington County, Munson, Chancellor. Demurrers overruled, amended bill held sufficient, and decree for oratrix. The defendants appealed. The sixth clause of the Burton will creates a contingent and not a vested remainder in Burton’s daughters.

<p>Information- — Amendment of.</p> <p>A State’s Attorney may, by leave of Court, amend an information filed by bis predecessor in office.</p> <p>An information is not required to be upon tbe State's Attorney’s oatb of office.</p>

General Assumpsit. Pleas, the general issue and payment. Heard on the report of a referee, at the September Term, 1902, Franklin County, Munson, J., presiding. Judgment for the defendant. The plaintiff excepted. This is not a suit upon the notes, but an action' for money lent and paid out. The notes furnished evidence that the maker has received from the payee a sum of money which he promises to pay. Chase & Grew v. Burnham & Dow, 13 Vt. 448; 14 Am. & Eng. Ency.

<p>Ejectment. Plea, the general issue with notice of special matter. Trial by jury at the March Term, 1902, Washington County, Start, J., presiding. Verdict for the defendant. Motion to set aside the verdict overruled, and judgment on verdict. The plaintiff excepted.</p> <p>An inspection of all the evidence in the case shows that the verdict was against the weight of evidence, and the same should have been set aside.</p> <p>The defendant can not stand upon adverse possession, because it was permissive. Pray v. Pierce, 7 Mass. 381; Bartlett v. Judd, 21 N. Y. 200; Henry v. Huff, 143 Pa. St. 548.</p> <p>That possession must be exclusive as well as hostile. Pulaski County v. State, 41 Ark. 118/ Tracy v. Railroad Co., 39 Conn. 382; Hill v. Waldrop, 57 Ga. 134; Turney v. Chamber-Un, 15 Ill. 271; Law v. Smith, 4 Ind. 56; Hempstead v. Ho ff-mam, 84 la. 398; :Roberts v. Richards, 84 Me. 1; Burks v. Adams, 80 Mo. 504.</p> <p>This Court will not disturb the verdict, for there was evidence to support it. Hill v. New Haven, 37 Vt. 512; Weeks v. Barron, 38 Vt. 420 ; Mullin v. Rowell, 56 Vt. 301.</p> <p>The character of the defendant’s possession was a question for the jury. Cyc. 1153, 1159.</p>

<p>Common counts — Special contract — Abandonment—Quantum meruit — Improper remarks by counsel — Motion for judgment non obstcmte.</p> <p>One cannot except to hearsay testimony brought out by himself on cross-examination.</p> <p>Improper comments of counsel which are peculiarly within the province of the trial Court to deal with, do not afford grounds for reversal.</p> <p>A judgment non obstante will not be rendered for a defendant, — at least not where the issues are as they were here.</p> <p>Services rendered under a special contract which one is forced by the other party to abandon, may be recovered for under the common counts.</p> <p>One forced by the other party to abandon a special contract is excused from demanding performance before bringing suit.</p>

<p>Highways — Change of grade — Damages—V. S. 3358.</p> <p>A change in the grade of a highway entitles an abutting owner to damages only when it exceeds three feet, and then only for the injury caused by such excess. ' ></p>

Special Assumpsit. The pleadings are stated in the opinion.. Trial by jury at the December Term, 1901, Caledonia County, Munson J., presiding. At the close of the evidence each party moved for a verdict. Plaintiff’s motion overruled, verdict ordered for the defendant', and judgment thereon. The plaintiff excepted.

Petition under V. S. c. 159. Heard on Vermont Electric Co.’s motion to dismiss, at the September Term, 1902, Chittenden County, Start, J., presiding. Two questions are raised for consideration. (1) Is the application of water power, developed by the raising of a dam as contemplated by chapter 159 of the Vermont Statutes, to the operation of a railroad by electricity, a public benefit justifying the exercise of the right of eminent domain under the so-called flowage acts?

Appeal in Chancery. Heard on the defendant’s demurrer to the bill, at the September Term, 1902, Washington County, Widtson, Chancellor. The approval of the guardian’s account by the orator is not a bar to the relief prayed for, for the reason that it would be inequitable for the defendant to be allowed to avail himself of an approval which was the product of the confidential relation. Bigelow on. Est. 572, 573; Farrcmt v. Blanchford, 1 DeG.

Assumpsit on an accident insurance policy. Pro forma judgment for the plaintiff for the principal sum named in the policy, on an agreed statement of facts, at the March Term, 1902, Washington County, Start, J., presiding. The defendant excepted. The words “cattle shipper and tender in transit” do not apply to the case of a man travelling with a horse. Brown v. Bailey, 4 Ala. 413; Hubotter v. State, 32 Tex. 479. Insurance contracts are construed against the company.

General and Special Assumpsit on a fire insurance policy: Plea, the general issue. Trial by jury at the September Term, 1902, Windham. County, Tyler, J., presiding. Defendant’s motion for verdict overruled. Verdict for plaintiff. Defendant’s motion for judgment non obstante overruled. Judgment on verdict. The defendant excepted.

Replevin for property levied on for a debt against plaintiff’s husband. Plea, not guilty. Trial by. jury at the December Term, 1901, Caledonia County, Munson, J., presiding. Defendant’s motion for a verdict overruled. Verdict and judgment for the plaintiff. The defendant excepted. The motion for a verdict should have been granted. The plaintiff’s title was not good against the defendant. It was a gift from her husband. V. S. 2647.

Appeal, erom Commissioners. Declaration in the common counts. Plea, the general issue. Trial by jury at the March Term, 1901, Rutland County, Munson, J., presiding. Judgment for defendant on verdict ordered. The plaintiff excepted. If the notes against A. C. Bates & Son were a part of Nelson' Brown’s estate it w!as the duty of this executor to collect them', and if, through his neglect, he fails to do so, his bondsmen would be liable. Lyon v. Osgood, 58 Vt. 707.

Appeal Erom Commissioners. Declaration, general and special assumpsit. Pleas, the general issue and Statute of Limitations. Trial by Court at the December Term, 1902, Windsor County, Rowell, C. J., presiding. Pro forma judgment for defendant. Tjhe plaintiff excepted. A note secured by real estate mortgage has vitality for fifteen years, although the remedy on the principal is barred.

Appear in Chancery. Heard on defendant’s demurrer to the bill, at the June Term, 1902, Addison County, Stafford, Chancellor. Demurrer overruled, pro format, and the bill adjudged sufficient. The defendants appealed. The orator has an action for the breach of the contract and cannot invoke the aid of a Court of Equity. Currier v. Rosenbrook, 48 Vt. 34; Smith v. Pettengill, 15 Vt. 83.

Information for peddling without a license. Heard on a demurrer to the information, at the December Term, 1902, Caledonia County, Watson, J., presiding. Demurrer overruled, pro forma, and information adjudged sufficient. The respondent excepted. The statute upon which this information is based is unconstitutional. It denies to' the respondent the equal protection of the law.. Butcher’s Union v. Crescent City Co., in U. S. 746, and cases cited (d).

Trespass de bonis and Trover. Plea, the general issue and notice justifying under a chattel mortgage sale. Trial by jury at the December Term, 1901, Caledonia County, Munson, J., presiding. Defendant’s motion for a verdict overruled. Verdict for plaintiff. Judgment on verdict after remittitur filed. The defendant excepted. There was no evidence of any damage in excess of one hundred and eighty-five dollars.

Indictment for adultery. Plea, not guilty. Trial by jury at the December Term, 1902, Addison County, Haselton, J., presiding. Verdict, guilty. Respondent’s motion in arrest of judgment overruled. Judgment on verdict. The respondent excepted. The indictment should have charged that the woman was either married or unmarried. State v. Searle, 56 Vt. 516. The indictment does not charge that the particeps was a woman.

Complaint for violation of an ordinance of the City of Rutland. Heard on respondent’s demurrer to the complaint, in the Municipal Court of that city, Howe, Judge. Demurrer overruled pro forma, and complaint adjudged sufficient. The respondent excepted.. The ordinance in question was passed under the general clause of the city charter, and not by special authority conferred. V. S. 4922, 4923, 4924, 4925 and 4926 cover the subject matter of carrying weapons in this State.

. Appeal in Chancery. Heard on. the report of a special master, at the September Term,, 1902, Franklin County, Mun-son, Chancellor. Decree for the defendant. The orator appealed. The money went to benefit 'the sole and separate estate of the defendant, and in equity it must respond for the debt. Sergeant v. French, 54 Vt. 384; Dale v. Robinson, 51 Vt. 20.

Indictment Eor Forgery. Trial by jury on a plea of not guilty, at the March Term, 190T, Washington County, Watson,, presiding, after respondent’s demurrer to> the indictment had been overruled, and his exception thereto' had been ordered to lie without prejudice. Verdict, guilty. Judgment thereon, and sentence deferred. The respondent excepted.

General Assumpsit on a fire insurance policy. Plea, the general issue with notice of special matter. Trial by jury at the September Term, 1902, Orleans County, Haselton, J., presiding. Defendant’s motion for a verdict overruled. Verdict and judgment for the plaintiff. The defendant excepted. The use of the engine within sixty-eight feet of the buildings insured vitiates the policy, and a verdict for the defendant should have been ordered.

Petition for writ of Habeas Corpus. The petition was made returnable before Stafford, J., and by agreement of counsel was adjourned into the May Term, 1903, of Supreme Court. The mittimus does not properly describe the crime. V. S. 5417, F. 54; In re McLaughlin, 58 Vt. 136; State v. Austin, 62 Yt. 291. It was not lawful for the Court to impose a fine with costs. No. 90, Acts of 1902, s. 97. V. S. 1864 does not apply.

CompeaiNT under No. 95, Acts of 1900: The respondent’s demurrer to The complaint is bad in that it does not negative that the respondent was a resident of Washington County. The exception is in the enacting clause, and a part of the description of the offense. State v..

Trespass under V. S. 4626. Heard on the defendant’s demurrer to the second count of the declaration, at the Sej> tember Term, 1902, Franklin County, Munson, ]., presiding. Demurrer overruled and count adjudged sufficient. The defendant excepted. The plaintiff is not the owner of the locus, and has only an easement in the land. 2 R. & D. Law Die.. 915; Parmenter v. Casivell, 53 Vt. 6. The statute is penal and should be strictly construed.

Assumpsit Eor Taxes. Plea, the general issue. Heard on the report of a referee, at the December Term', 1902, Bern nington County, MunsonJ., presiding. Judgment for the defendant. The plaintiff excepted. 1 The failure of the listers to file the abstract only invalidates the grand list so far as the personal property is concerned. Smith v. Hard, 59 Vt. 13; Bartlett v. Wilson,, Id. 23.

Appeal in Chancery. Heard on defendant’s demurrer to the bill, at the March Term, 1903, Washington County, Stafford, Chancellor. Pro forma decree sustaining the demurrer and dismissing the bill. The oratrix appealed. The oratrix is entitled to equitable relief. Cooley Tax., 219, 784, 785; Spelling Ex. Rel., s. 641; Judson Tax., ss. 466, 473, 553; and cases cited by these authors. It is the allegation of fraud which gives this Court jurisdiction.

Generar and SpEciar Assumpsit. Plea, the general issue with notice of special matter. Heard on the report of a referee, at the December Term, 1902, Caledonia County, Watson, J., presiding. Pro forma judgment for the defendant. The plaintiff excepted. Under the Bankruptcy Act of 1898, the trustee is the representative of the creditors. In re Pekin Plow Co., 112 Fed. 308; In re Booth, 98 Fed. 975; In re Yukon Woolen 'Co., 96 Fed. 326; In re Howland, 109 Fed. 869.

Appeai, in Chancery. Heard on the report of a special master, and defendant’s exception thereto', at the August Term, 1902, Grand Isle County, Munson, Chancellor, after leave granted tp file a supplemental bill. Decree for the orator. The defendants, appealed.

Appeal in Chancery. Heard on defendant’s demurrer, at the June Term, 1902, Bennington County, Tyler, Chancellor. The bill sets forth a trust in that Mjatilda E-, becoming possessed of money, placed the same in the hands of her husband for care and investment. The claim' is purely equitable, and it could not have been allowed by commissioners. Spar-hawk v. Buell, 9 Vt. 74; Herrick v. Belknap, 27 Vt. 674; Brown v. Sumner, 31 Vt. 671.

Trespass eor Assault. Plea, the general issue, with no tice of special matter. Trial by jury at the March Term, 1901, Washington County, Watson, J., presiding. Verdict, guilty against defendants Watson and Bills, and not guilty as to defendant Cate. Judgment on verdict. Motion for certificate overruled. The plaintiff excepted. It was error to allow the defendants to amend their pleading by bringing on ff> the record two entirely new defenses.

Appeae in Chancery. Heard on demurrer to the amended bill, at the December Term, 1901, Caledonia County, Munson, Chancellor. The mortgage in question was a valid lien in equity on Lydia Hutchinson’s sole and separate property., Frary v. Booth, 37 Vt. 83; Curtis v. Simpson¡, 72 Vt. 235. An understanding between husband and wife that the latter may hold her property to her sole use may be implied. Willard v. Dow, 54 Vt. 188.

Petition Eor Support. Heard at the March Term, 1902, Washington County, Haselton, J., presiding. Judgment for petitioner. The defendant excepted. The findings of fact were inadmissible. The issues in the divorce case and in the case at bar were not the same.

Trover. Plea, not guilty. Trial by jury, at the June Term, 1902, Orange County, Rowell, C. J., presiding. Verdict and judgment for plaintiff. The defendant excepted. The true measure of damages was the value of the property at the time of the taking, less the amount of the lien>.

Declaration, general as-sumpsit. Pleas, the general issue, payment, and statute of limitations. Jhial by jury at the December Term, 1902, Caledonia County, W'atson, J., presiding. Verdict and judgment for the claimant. The defendant excepted. The plaintiff was bound to show that'the payments were voluntary and made with the intent that they should be applied on this note. Austin v. McClure, 60 Vt. 453; In re Brycrnf s Mst., Vt. 240; Terrill v. Deaiuitt, 73 Vt. 188.

Appeal in Chancery. Heard on the report of a special master and exceptions thereto, at the March Term, 1902, Franklin County, Tyler, Chancellor. Pro forma decree for the orator. The defendants appealed. The trust arose in 1893 when the assignee of J. L. Gibbs sold to Nellie W. Gibbs the real estate in' question, and took her money for it. Williams v. Wager, 64 Vt 326. The orator had notice of this trust.

Appeal in Chancery. Heard on the report of a special master and defendant Daniels’ exceptions thereto, at the September Term, 1902, Washington County, Watson, Chancellor. Decree for the petitioner. Defendant Daniels appealed. The former decree is conclusive. If Haskell lost his day in Court it was through his own fault, and equity will not relieve him. Hyde v. Hyde, 50 Vt. 301; Durkee v. Durkee, 59 Vt. yo\ Kopper v. Dyer, 59' Vt. 477.

Trover. Plea, the general issue. Heard on the report of a referee, at the June Term, 1902, Bennington County, Tyler, J. presiding. Pro forma judgment for the defendant. The plaintiff excepted. The contract in question evidences a conditional sale, and the defendant could nlot take possession of the property except as provided by statute. V. S. 2293; Smith v. Wood 63 Vt. 534; Roberts v. Hunt, 61 Vt. 612.

■ Debt under V. S. 4.798, 4800. Plea, the general issue. Trial by jury at the June Term, 1902> Windham' County, Has-elton, J., presiding, Verdict for plaintiff. Defendant’s motion in arrest overruled. Judgment on verdict. The defendant excepted. The judgment was a non-suit, because it was entered with plaintiff’s consent. The object of the statute is satisfied by marking the ram with a single letter. V. S. 2 should apply.

Trespass To the person. Pleas, the general issue and a justification. Trial by jury at the March Term, 1902, Franklin County, Tyler, J., presiding. Verdict for the plaintiff against Henry Carr set aside. That defendant excepted. In view of the testimony, it was competent and reasonable for the jury to find that Henry Carr was guilty only in the first conflict. This was of a trifling character, and the sum fixed by the jury was adequate.

Appeal in Chancery. Heard on demurrer to the bill, at the June Term, 1902, Lamoille County, Stafford, Chancellor. Pro forma decree for the defendants. The orator appealed. The orator ought not to be compelled to follow, through the Courts of two States, the parties claiming the insurance money, when it is ready to pay the same to whomever is entitled to it. McClennan Interpleader, 9, 10, 17, 32, 33, 36; Angelí v. Hadden, 15 Yes. 244; Webster v. McDaniel, 2 Del.

<p>Divorce — C auses — D esertion.</p> <p>That a wife, without physical excuse and for three consecutive years, refuses to have sexual intercourse with the husband, does not entitle him to a divorce for desertion.</p>

Appeal in Chancery. Heard on demurrer to the bill, at the September Term, 1902, Washington County, Watson, Chancellor. The orator without fault on its part is put in a position where it cannot determine, without hazard to itself, to which of the defendants the fund belongs. Cram v. McDonald, 23 N. E. 991; French v. Robrchord, 50 Vt. 43; Horton v. Baptist Church, 34 Vt. 315. The orator is under an independent liability to one of the claimants, and cannot maintain the bill.

InpormatioN for illegally killing a deer. Plea, not guilty. Trial by jury at the December Term, 1902, Wind-ham County, Rowell, C. J., presiding. Verdict and judgment, guilty. Sentence thereon and execution ordered. The respondent excepted. If the respondent killed this deer supposing it had horns, he could not be'convicted, i Hale 39; Foster 259; 4 Arc'hl. Cr. PI. & Pr. 55, and note; Cro. Car. 538; 4 Blk. Com. 27; 1 Bish. Crinx L., s. 301; Myers v. State, 1 Conn. 592.

Assumpsit on a fire insurance policy. Heard on demurrer to the declaration, at the March Term, 1903, Washington County, Stafford, J., presiding. Demurrer overruled pro forma. The defendant excepted. The first count does not show a consideration. Gray v. Osborne, 24 Tex. 157; Harding v. Cragie, 8 Vt. 501; Perry Com. 1,. PI., 88, 89; Cowan v. Insurance Co., 78 Cal. 181. The second count is equally defective in this particular.