Volume 77 — Vermont Reports

Trespass quare clausum to recover treble damages, under V. S. 5020, for cutting timber. Pleas, the general issue, and liberum tenementum. Replications, similiter, and new assignment. Rejoinders, not guilty, and license; surrejoinder, traversing the plea of license, and joining issue on the plea of not guilty. Heard on a motion to amend the new assignment, and on the report of a referee, at the December Term, 1903, Windsor County, Munson■, J., presiding.

Case for personal injuries. Plea, the general issue. Trial by jury at the March Term, 1903, Washington County, Stafford, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Indictment for an assault with intent to ravish a girl under the age of sixteen years. Plea, not guilty. Trial by jury at the September Term-, 1903, Washington County, Haselton, J., presiding. Verdict guilty; and judgment thereon. The respondent excepted.

General Assumpsit to recover a balance claimed to be due on a car of scrap iron. Pleas, the general issue, payment, and accord and satisfaction. Trial by court in the City Court of the city of Burlington. Hawkins, Judge. Judgment for the defendant. The plaintiff excepted.

Appeal in Chancery, Orleans County. Heard at Chambers on demurrer to the bill. Stafford, Chancellor. Demurrer overruled, pro forma and bill adjudged sufficient. The defendant appealed. At its May Term, 1904, on motion of the orators, the Supreme Court dismissed the appeal.

Trespass for breaking and entering the plaintiff’s store and forcibly expelling him therefrom, and for assaulting him, with a count in trespass de bonis for taking and carrying away his goods found therein, and a count in trover for the same goods. Plea, the general issue with notice. Trial by jury at the September Term, 1903, Rutland County, Munson, J., presiding. Special verdicts, and judgment thereon for the plaintiff. The defendant excepted.

General Assumpsit on a fire insurance policy. Plea, the general issue with notice. Trial by jury at the September Term, 1903, Orleans County, Stafford, J., presiding. Verdict ordered for the defendant; and judgment thereon. The plaintiff excepted. This case has been once before in the Supreme Court. See 75 Vt. 320.

A. Stanford, the administrator, in offset thereto. Declaration in general assumpsit. Plea, the general issue, and declaration in offset. Trial by Court at the September Term, 1903, Orleans County, Stafford, J., presiding. Judgment for the claimant. The estate excepted. On page 180 of decedent’s book there are, besides the disputed items, eight charges against the claimant for a cow, hay, goods and labor. The first charge is dated August 1894, and the last, May 1900.

, Case for fraud. Plea, the general issue. Trial by jury at the June Term, 1903, Windsor County, Tyler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. The court erred in ruling that a verbal license to sell, given by the mortgagee to the mortgagor, would be no defence. After sale and delivery under such license the mortgagee is estopped from foreclosing his mortgage. Reynolds v. Roberts, 57 Vt. 392.

Petition for a new trial brought, under V. S. 1662, to the Supreme Court for Windsor County, at its January Term, 1904, and heard at the May Term, 1904, on motion to dismiss the petition. The petitioner was plaintiff in the suit in county court, which was an action of ejectment tried by jury at the June Term, 1904, of Windsor County.

General Assumpsit. All necessary pleas treated as filed. Heard on report of a referee and exceptions thereto at the May Term, 1902, Windsor County, Haselton, J., presiding. Judgment pro forma, for the plaintiff. The defendant excepted. This was an accounting involving a business deal of thirty-two years. The plaintiff’s specifications consist of 4,140 items, the defendant’s of 535 items.

Information for grand larceny. Plea, not guilty. Trial by jury at the March Term, 1904, Orleans County, Hcuselton, J., presiding. Verdict guilty; judgment and sentence. The respondent excepted. The exceptions state that in February 1904, when respondent had the talk with the officer which is referred to in the opinion, no complaint or warrant had been issued for the larceny here in question. It was error not to direct a verdict for respondent.

Trespass for false imprisonment. Plea, the general issue. Trial by court at the September Term, 1903, Rutland County, Mwison, J., presiding. Judgment for the plaintiff. The defendant excepted. The return upon the warrant was signed by defendant Hastings, as constable, and stated that he “arrested the body of” the plaintiff.

Information in two counts, under No. go, Acts 1902, for selling intoxicating liquor without a license. Plea, not guilty. Trial by jury at the March Term, 1904, Orleans County, Haselton, J., presiding. Verdict, “guilty on both counts.” Judgment; and sentence that respondent pay a fine of $600 and costs. The respondent excepted. Each count charged a separate and distinct offence, and each charged a joint sale to T. G. Kaulbeck and W. E. Tasker.

Arpead in Chancery. Heard on petition, answer, master’s report and exceptions thereto, at the December Term, 1903, Addison County, Tyler, Chancellor. Decree for the petitioner. The petitionee appealed. The opinion fully states the case. The Legislature could not enact a law sustaining V. S, 2646 in favor of one person and not in favor of another, Holden v. James, 11 Mass. 397; King v. Tennessee, 3 L. R, A. 2103 Tillman v. Cook, 9 Baxter (Tenn.) 429; Cooley on Const.

Information for poisoning colts. Plea, not guilty. Trial by jury at the September Term, 1903, Bennington County, Watson, J., presiding. Verdict, guilty; and judgment thereon. The respondents excepted. The opinion fully states the case. The evidence that Sargood had furnished intoxicating liquor to' Blair was inadmissible, as was also- the evidence that, after the colts were poisoned, Sargood attempted to- poison Hicks and his wife.

Information for selling intoxicating liquor without a license in violation of No. 90, Acts- 1902. Heard on general and special demurrer to the whole information, and to each count thereof, at the September Term, 1903, Washington County, Stafford, J., presiding., Demurrers overruled, pro forma. The respondent excepted. The opinion fully states the case. The information should allege that the people of the ■city of Barre had voted “Yes” under § 2, of the act.

Appeal in Chancery, Windsor County. Heard at Chambers, April 21, 1904, on an agreed statement of facts. Decree, pro forma, dismissing the bill, Rowell, Chancellor. The orator appealed. The demurrer toi the bill was heard at Chambers Reb. 11, 1904, Mwnson, Chancellor. Demurrer overruled; no appeal. The opinion fully states the facts.

Appear in Chancery. Heard on the report of a master at the September Term, 1902, Chittenden County, Start, Chancellor. Decree, pro' forma for the orator. The defendant appealed. A wife is not entitled to her separate earnings, as against her husband. This is especially true, if she mingles them with the funds of her husband. Schouler on H. & W., § 294; McCluskey v. Provident Institution, 103 Mass. 3007 Kelley v. Drew, 12 Allen 107.

Motion that a case be brought forward from the docket and continued, made and heard in Supreme Court, October Term, 1904. The opinión states the facts. See the original case, Monahan v. Monahan, ante.

Assumpsit for the price of a horse. Plea, the general issue. Heard on report of a referee at the June Term, 1904, Windsor County, Start, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case.. The defendant’s notice “that the mare was at his place in Dummerston, and subject to his order,” was not a sufficient tender.

General Assumpsit. Heard on general demurrer to a plea in abatement, at the March Term, 1904, Chittenden County, Munson, J., presiding. Demurrer sustained. The defendant excepted. The scope of the plea in abatement is stated in the opinion.

General Assumpsit. Trial by court at the June Term, 1904, Addison County, Munson, J., presiding. Judgment for the plaintiff to recover his entire bill. The defendant excepted.

CasR» Heard, on motions to dismiss filed by each party,, at the June Term, 1904, Caledonia County, Watson, J., presiding. Plaintiff’s motion was denied. Defendant’s motion was granted with costs. The plaintiff excepted. The opinion states the facts. It is for the appellant to show that the county court had jurisdiction. Persons v. Turnpike Co., 20- Vt. 170. The justice had no jurisdiction. Bell v. Prouty, 43 Vt. 279-

<p>Chancery — Interlocutory Decree — Appeal—V. S. 1629.</p> <p>A pro forma decree overruling a demurrer to a bill in chancery is interlocutory, hence no appeal therefrom lies.</p> <p>V. S. 1629, providing for passing cases to the Supreme Court on exceptions,, before final judgment, has no application to suits in chancery.</p>

<p>Criminal Law- — Statutory Rape — Punishment—Prosecution — Information.</p> <p>Under V. S. 4908, as amended b7 No. 118, Acts of 1898, statutory rape is not punishable by imprisonment in tbe State's prison more than 20 years. Hence a State’s Attorney can prosecute for that offence by information.</p>

<p>Statute of Limitations — Arrest of Judgment — New Action— V. S. 1214.</p> <p>The judgment of the Supreme Court in Baker v. Sherman, 73 Yt. 26, compelled the plaintiffs to elect either to amend their declaration and have a new trial on the terms imposed, or to have judgment arrested; and their election to submit to an arrest of judgment was not voluntary, and therefore did not bar a new .action for the same cause within a year, as authorized by V. S. 1214.</p>

Trover for a cow. Plea, the general issue. Trial by jury at the September Term, 1903, Chittenden County, Tyler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The cause of .action accrued at the time defendant failed to post and advertise as required by the statute. Chaffee v. Harrington, 60 Vt. 718; Carr v. Bennett, 21 111. App. Div. 137- Plaintiff’s ignorance of the existence of his cause of action makes no1 difference.

Information for unlawfully killing a wild deer. Plea, not guilty. Trial by jury at the March Term, 1904, Rutland County, Tyler, J., presiding. Verdict, guilty; judgment and sentence thereon. The respondent excepted.

Justice Ejectment. Plea, the general issue. Trial by jury at the March Term, 1904, Washington County, Stafford, J., presiding. Verdict for the defendant, and judgment thereon. The plaintiff excepted.

Assumpsit on a promissory note. Pleas, the general issue, with notice denying the signature; and the Statute of Limitations. Trial by jury at the March Term, 1904, Orleans County, Haselton, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion fully states the case. The evidence offered as to the poverty of Crawford and Inis family should have been admitted.

Assumpsit on a bank check. Plea, the general issue. 'Trial by court at the March Term, 1904, Washington County, Rowell, J., presiding. Judgment for the defendant on the facts found. The plaintiff excepted.

Trespass for cutting and drawing away trees from plaintiff’s land. Plea, the general issue. Trial by jury at the September Term, 1903, Washington County, Haselton, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The evidence on both sides showed that the plaintiff’s farm is bounded on the east by the town of Marshfield, on the south by land of Fred Damberton, on the north by land of Henry Dow.

Information for breach of the peace. Plea, not guilty. Trial by jury at the March Term, 1904, Washington County, Stafford, J., presiding. Verdict, guilty; judgment and sentence thereon. The respondent excepted. The evidence of threats which the respondent offered to show were made by the .prosecuting witness, were all made before the collision.

GsnErau Assumpsit,, common money counts, for money claimed to have been obtained by fraud. Plea, the general issue. Trial by jury at the December Term, 1903, Caledonia. County, Haselton, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. This case has been once before in the Supreme Court. See 75 Vt. xoo.

Habeas Corpus returnable at Burlington in Chittenden County before Haselton, J.„ and duly adjourned into the Supreme Court at its May Term, 1904; argued at that term'; re-argued at the October Term, 1904. The opinion states the facts. The judgment was in an action of trover. The gist of this action is conversion. Conversion is not one of the exceptions mentioned in § 17 of the U. S. Bankruptcy Act, 1898^ as amended by the Act of Feb. 5, 1903.

Appear in Chancery. Heard on master’s report and exceptions thereto at the March Term, 1904, Franklin County, Start, Chancellor. Decree dismissing bill: The orator appealed. This case has been once before in the Supreme Court, and the decree was reversed pro forma for the reason stated in the opinion in this case. See 73 Vt. 375, for further statement of the facts involved.

Ineormation for larceny. Plea, not guilty. Trial by jury at the June Term, 1904, Orange County, Rowell, J., presiding. Verdict, guilty; and judgment thereon. The respondent excepted. The opinion states the case. The offered declaration of respondent was admissible. 24 A. & E. Enc. (2 Ed.) 662; Rob. Dig. 285 § 195; Rudd v. Rounds, 64 Vt. 432; 18 A. & E Enc. (2 Ed.) 509; Com. v. Rubin, 163 Mass. 453; Danforth v. Streeter, 28 Vt. 490; Reg. v. Abraham, 2 C. & K. 330.

Appear in Chancery. Heard on bill, answer, and master’s report, at the September Term, 1903, Chittenden County, Tyler, Chancellor. Decree, pro forma, for the orator. The defendant appealed. The quitclaim deed was designed to effect a mere assignment of the lease and its effect should be soi limited. Beardsley v. Knight, 10 Vt. 185; Dietrich v. Hutchinson, 73 Vt. 141; Adams v. Stevens, 49 Me. 362; Bockmood v. White, 65 Vt. 466.

Trover for one barrel of ale. Plea, the general issue, with notice of justification under a search warrant issued by a justice of the peace, and directed to the defendant as police officer of the city of Barre. Trial by court in the City Court of the city of Barre, Pay, Judge. Judgment for the defendant. The plaintiff excepted. The complaint in question was exhibited to' the justice of ■the peace who' signed and issued the warrant.

Case to recover the penalty given by V. S. 382. Heard on motion to dismiss the writ, and on demurrer to the declaration, at the October Term, 1904, Essex County, Start, J., presiding. The motion to dismiss was overruled. Thereupon the defendant demurred. Demurrer overruled, pro forma, and declaration adjudged sufficient. The defendant excepted. The opinion states all the facts pertinent to the question decided. The motion to dismiss should have been granted.

Information for fraudulently obtaining a bank check by falsely personating another. Plea, not guilty. Trial by jury at the September Term, 1903, Chittenden County, Tyler} J. presiding. Verdict, guilty; judgment and sentence thereon. The respondent excepted.

Appeal in Chancrry. Heard on Sarah Emetine Churchill’s demurrer to the bill, at the'December Term, 1903, Windsor County, Munson, Chancellor. Demurrer sustained, and bill dismissed, as to the demurrant, with costs. The orators appealed.

Petition for a new trial, brought under V. S. 1662, to the Supreme Court for Chittenden County at its January Term, 1905, and then heard on testimony taken and filed. The opinion states the facts. It is a presumption of law that the testimony of the prosecutrix given on the trial is true, and that her subsequent contradictory statements made out of court are false. People v. McGuire, 2 Hun. 269; Holtz v. Schmitz, 44 N. Y. Supp.

Libel. Heard on general demurrer to, the declaration, at the March Term, 1904, Rutland County, Tyler, J., presiding. Demurrer overruled, and declaration adjudged sufficient. The defendant 'excepted. The opinion states the substance of the declaration. ■ The language of the publication is not actionable per se. Colby v. Reynolds, 6 Vt. 489; Jones v. Roberts, 73 Vt. 204; Si. J. Academy v. Gaiser, 46 Am. St. Rep. 502.

Assumpsit for expenses incurred in the support of a pauper. Heard on agreed statement at the March Term, 1904, Chittenden County, Munson■, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case. The pauper was not emancipated during his minority.

Case. Plea, the general issue. Trial by jury at the March Term, 1903, Rutland County, Haselton, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. After verdict and before judgment thereon the defendant filed a motion that the verdict be set aside and a new trial granted because of the misconduct of a juror during the trial. The court heard testimony on both sides and denied the motion, to which the defendant excepted.

Petition eor a New Trial, brought under V. S. 1662, to the Supreme Court for Chittenden County at its January-Term, 1905, and then heard on affidavits taken- and filed. The evidence given in the affidavits is not merely cumulative. Waller v. Graves, 20 Conn. 311; Parker v. Hardy, 24. Pick. 246; Alger v. Merritt, 16 Iowa 21; Grogan v. R. Co.,. 39 W. Va. 415; Coldworthy v. Linden, 75 Wis. 34; German v.. Bank, 38 Ohio, 368; Bradish v. State, 35 Vt. 456.

Case eor Negligence. Plea, the general issue. Heard on an agreed statement of facts at the June Term, 1904, Orange County, Rowell, J., presiding. Judgment, pro forma, for the plaintiff for $300 and costs. The defendant excepted.

Case eor Negligence. Plea, the general issue. Heard on an agreed statement of facts at the June Term, 1904, Addison County, Munson, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion fully states the material facts. It is now the established doctrine that a common carrier may by contract limit his common law liability. McCawley v. The Furness .Railway Co., 8 Law Rep.

Appeal Erom a Decree op The Probate Court establishing an instrument as the last will and testament of Almira E. Cowdry. George Wheeler, proponent. Henry C. Holmes and others, contestants. Trial by jury at the March Term, 1903, Washington County, Stafford, J., presiding. Verdict and judgment for the proponent. The contestants excepted. The opinion states the facts. The law presumes undue influence when a ward malees a will in favor of his guardian.

Assumpsit to recover for the support of a pauper. Plea, the general issue. Judgment, pro forma, for the plaintiff on .an agreed statement of facts, at the September Term, 1904, Chittenden County, Haselton, J., presiding. The defendant ■excepted.

Case for 'malicious suit. Heard on demurrer to the new count of the declaration at the June Term, 1904, Caledonia County, Watson, J., presiding. Demurrer sustained. The plaintiff excepted. The opinion states the substance of the count. Want of probable cause is a question of law. The pleader should allege fact from which the court may judge whether there was want of probable cause.

Appear in Chancery. Heard on demurrer to the amended bill of complaint at the March Term, 1904, Washington County, Rowell, Chancellor. Demurrer overruled; bill adjudged sufficient and taken as confessed. The defendant appealed. This case has been once before in the Supreme Court. See 76 Vt. 127. The opinion states the substance of the amended bill.

Trover for hay. Plea, the general issue. Trial by court at the June Term, 1903, Orange County, Munson, J., presiding. Judgment for the defendant. The plaintiff excepted. Neither the lessee of the mortgagor nor any one claiming tinder her was made a party to the foreclosure suit mentioned in the opinion. The opinion states all that the trial court found in respect of when the hay in controversy was cut.

Indictment eoe Murder. Plea, not guilty. Trial by jury at the December Term, 1903, Windsor County, Munson, J,. presiding. Verdict, guilty of murder in the second degree; judgment and sentence thereon. The respondent excepted. The opinion'fully states the case.

Assumpsit on a policy of fire insurance. Pleas, the general issue and four special pleas in bar. Trial , by jury at the April Term, 1903, Windsor County, Munson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion fully states the case. Norton did not have authority to waive the provision in the policy requiring proof of loss. Smith v. Ins. Co., 60 Vt. 690; Powers v. Ins. Co., 68 Vt. 394.

Appeal in Chancery. Heard on demurrer to the bill of complaint at the March Term, 1904, Washington County, Tyler, Chancellor. Demurrer overruled, pro forma, bill adjudged sufficient and taken as confessed. The defendant appealed. The opinion fully states the case. The paving assessment cannot legally be made unless the owners of the property to be assessed are notified and given the opportunity to be heard by the city council as to the necessity of the proposed improvement.

Replevin for a heifer. Heard on the report of a referee at the September Term, 1904, Franklin County, Haselton, J., presiding*. Held: as matter of law, that the measure of defandant’s damages was the value of the use of the heifer during the period of her detention by the plaintiff, without - deduction for her increase in value during that time, and rendered judgment for the défendant to recover $7.00 damages, and costs..

GenerIal Assumpsit. Pleas, the general issue, payment, Statute of Limitation, and tender. Trial by jury at the March Term, 1904, Chittenden County, Munson, J., presiding. Verdict ordered for the defendant, and judgment thereon. The plaintiff excepted. The opinion states the case. Custom may render an. attorney personally liable on contracts made by him for his client. 12 Cyc. 1073; Wires v. Briggs, s Vt. 102; Doughty v. Paige, 48 la.. 483.

Case for negligence. Plea, the general issue. Trial by jury at the March Term, 1904, Rutland County, Tyler, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted.

Trespass, for assault and battery. Pleas, the general issue and son assault demesne. Trial by jury at the June Term, 1904, Caledonia County, Waits on, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Hablas Corpus returnable to the Supreme Court for the County of Washington at its May Term, 1905, and heard at said term. The jurisdiction of justices of the peace will not be extended b3r implication, as the statutes conferring jurisdiction are strictly construed. Am. & Eng.

Trover for a piano. Plea, the general issue. Trial by-jury at the September Term, 1904, Rutland County, Munson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. This case has been once before in the Supreme Court. See 76 Vt. 405. Sometime in the fall of 1899, Marvin McClure, the bankrupt, caused a McPhail piano belonging to McClure to be placed in the house of defendant Ayers in Windsor.

Petition for a new trial brought, under V. S. 1997 and 1998, by a respondent after her conviction of murder, to the Supreme Court for Bennington County, at its May Term, 1905, and heard at said term.

Casp Por SrandPr. Heard on defendant’s motion to dismiss the case, at the December Term, 1903, Windsor County, Mims on, J., presiding. Motion overruled. The defendant excepted. The opinion states the case. The motion should have been sustained. The infant never “appeared” till th.e December term, 1903. Fall River foundry Co. v. Doty, 42 Vt. 412; Pidler v. Smith, 49 Vt. 253. A continuance of a case, without an appearance by defendant, operates as a discontinuance.

Petition eor Divorce. Heard at the December Term, 1904, Bennington County, Powers, J., presiding. Divorce granted. The petitionee excepted. The opinion states the case. See State v. San'good and Doyle, ante, 80. The term of the sentence fixed by the court controls, regardless of V. S. 5274. Oliver v. Oliver, 169 Mass. 592; Cone v. Cone, 58 N. H. 152.