Volume 78 — Vermont Reports

Indictment for keeping a gambling place. Heard on demurrer to the indictment at the June Term, 1904, Caledonia County, Watson, J., presiding. Demurrer overruled and indictment adjudged sufficient,, pro forma. The respondent excepted. The opinion states the case. The first count is bad even at common law. At common law, the indictment must charge the keeping of a “common” gambling house. Haw. P. C. (Cur. Ed.) Ch. 32 § 6; 1 Rus. Cr.

Covenant on a contract of suretyship1. Pleas, non est factum with notice thereunder, and six special pleas in bar. Heard on a general demurrer to each plea, and on a motion to dismiss the notice at the December Term, 1904, Caledonia County, Tyler, J., presiding. Without hearing and strictly pro forma, demurrers overruled, pleas adjudged sufficient, and motion to dismiss the notice overruled. The plaintiff excepted.

Harriet Anna Hubbard, Appellant. Heard on the report of a referee at the December Term, 1904, Addison County, Tyler, J., presiding. Decree of the probate court affirmed. Harriet Anna Hubbard, Appellant, excepted. The county court decided the case as a question of law on the facts found, and the case comes before this Court just as it did before the county court. Re McKeough’s Bst., 69 Vt. 41.

Grnrral Assumpsit to recover the expense of instruction furnished by plaintiff to pupils residing in defendant district. Heard on an agreed statement at the December Term, 1904, Caledonia County, Tyler, J., presiding. Judgment for the defendant to recover its costs. The plaintiff excepted. The agreed statement contains the stipulation that if the plaintiff is .entitled to recover, it is entitled to judgment for $87.46, with interest from Feb. 9, 1903.

Book Account. Heard on the report of an auditor at .the March Term, 1904, Chittenden County, Pozvers, J., presiding. Judgment for the plaintiffs to recover $180' damages and costs, the agreed commission, and disallowing plaintiffs’ charge of $16.24 for expenses. Both the plaintiffs and the defendant excepted. The Reynolds-McGinness Co. is a firm. The opinion states the case. The Statute of Frauds has no application to this case.

<p>Evidence — Declarations — Introductory Statement — Conclusiveness of Master’s Findings — Bill in Equity — -Scope of Prayer — Decree “According to The Prayer.”</p> <p>In 'fi, suit in equity by an .administrator to compel tbe defendant to convey to tbe orator certain real estate wbicb, tbe orator. claimed, was conveyed to the defendant in fraud of the decedent, the orator introduced evidence that defendant requested the grantor to convey the title to him in order to avoid decedent’s liability on a certain bond. Held, that the orator did not thereby place himself in the position of one seeking relief from-his own fraud.</p> <p>It is not error to allow a witness to state what she told defendant that decedent had said; it appearing that such statement began a conversation in which defendant made an admissible declaration, for the accurate presentation and correct understanding of which, such precedent statement is necessary.</p> <p>The findings of a master will not be disturbed, when thefe is evidence tending strongly to support them. '</p> <p>In a bill in equity charging that the defendant has wrongfully received the rents of certain property, the prayer, that an accounting thereof be had, and that the defendant be decreed to pay over the sum found in his hands, asks merely for the net income, so that a decree “according to the prayer” does not deprive the defendant of credit for proper expenditures.</p>

<p>Trespass — Possession—Color of Title — Public Lands — Minister's■ Lot — Deed Thereof in Pee — Effect—Conditions Subsequent — Porfeitures—Principal and Agent — Independent Contractor — Respondeat Superior — Evidence— Recitals in Deeds — Estoppels.</p> <p>In trespass quare clausum by an administrator, wherein the only defence is that plaintiff has neither legal nor possessory title, defendants cannot take advantage of the recital in plaintiff’s quitclaim deed of the premises in question to his intestate, that a certain decree of foreclosure had then become absolute, for defendants are strangers to that, deed, and estoppels must be mutual.</p> <p>A recital, in á deed conveying land appropriated for the use off the first settled minister in the town, that the grantor was such first settled minister, is not binding on a stranger to the deed.</p> <p>A town charter made a certain tract of land into a ■ township, and incorporated the then and future inhabitants thereof as a town, and conditionally granted said tract of land to certain persons, their heirs and assigns, to be divided into equal shares, one ,of •which was to. he appropriated “for the first settled minister of the Gospel in said town.” Held, that the proprietors took the title to the minister’s lot in their corporate capacity only, and in trust for the use to which it was appropriated, determinable on the settlement of the first minister in town.</p> <p>Forfeitures are odious in the law, and are never presumed.</p> <p>The breach of a condition subsequent will not defeat an estate granted by the State until it asserts its right to enforce a forfeiture, and no individual can assail the title for non-performance of the condition.</p> <p>Unless modified by statute, the conveyance by a trustee, whether to an innocent purchaser or not, and whether in contravention of the trust or not, vests the legal title in the grantee.</p> <p>But conveyances in fee of our public lands, when the statute authorises. only leases reserving rent, are void as conveyances, though they may operate as licenses to enter, and, if they contain a sufficient description, they give color of title.</p> <p>In a deed of real estate, a description of the land by metes and hounds and courses and distances is sufficient to. give color of title, as is also the description of the lot by name, number and division, it appearing that the town had been divided and alloted.</p> <p>When one quitclaims real estate of which he is in possession under color of title, that possession passes to his grantee, and the quitclaim deed gives the latter color of title.</p> <p>A town conveyed in fee a wood lot within its chartered limits, and which its charter appropriated “for the first settled minister of the Gospel in said'town.” The grantees, under a claim of ownership thereof, immediately went into possession of the lot by going over it several times prospecting for minerals, and by digging a hole near the center of it four or five feet deep, and taking out what they 'found, and by blasting a rock, and by doing “something on the lot almost every year” for several years. Held, that the deed from the town gave the grantees, color of title, and that, therefore, their acts upon the land were acts of ownership, constituting possession thereof. '</p> <p>Constructive possession, by virtue of color of title, is a sufficient possession to maintain trespass against a stranger.</p> <p>The constructive possession of a lot of land by virtue of color of title, is not affected by the fact that one line thereof has been long in dispute, it not appearing that there was ever any actual adverse possession of any part of it.</p> <p>In trespass for cutting timber, which plaintiff claimed was cut and delivered to defendants by their servant while he was cutting and delivering their timber from adjoining lands, defendants offered to show by one of themselves, and by their books produced by the witness, the total amount of lumber cut and delivered to them from all sources by their alleged servant during the time in question, and claimed that the evidence would show that this amount was less than plaintiff’s estimate of the amount cut from the disputed land. On plaintiff’s objection that the evidence in the case did not tend to show certain facts which defendants claimed rendered the offered evidence admissible, and that the witness had no personal knowledge except what appeared in the books, and that it did not appear that the books contained a record of all the lumber so delivered, the court excluded the offer. Held, that error did not appear; for though the record is referred to, nothing is pointed out in it to show that the court erred; nor is there anything in the offer to show error, for the court might well regard it as not containing enough to obviate the objection.</p> <p>In trespass for cutting timber, which plaintiff claimed was cut and delivered to defendants by W., while acting as their servant, but who, they claim, was acting under an independent contract to cut and deliver lumber from their land, it was error for the court to decline to instruct the jury on the subject of defendants’ liability if their said claim was true; and the mere instruction that . if the jury found that W. had trespassed on the land in dispute, the question whether he was. defendants’ agent was one for the jury to find one way or the other on the testimony, was inadequate.</p>

Information for practicing pharmacy without a license. Heard on a demurrer to the information at the March Term, 1903, Rutland County, Haselton, J., presiding. Demurrer overruled, and information adjudged sufficient. The respondent excepted. The Legislature cannot, 'constitutionally, give licensed pharmacists the exclusive right to sell patent medicines and drugs, nor discriminate against dealers in general merchandise. Noel v. People, 79 Am. St. Rep. 243; Gulf Colo.

Generad and Speciad Assumpsit. Pleas, the general issue with notice, and payment. Trial by jury at the December Term, 1903, Damoille County, Start, J., presiding. Verdict ordered for the defendant, and judgment thereon. The plaintiff excepted. The special count in the declaration was for breach of the logging contract mentioned in the opinion.

<p>Partnership — Pleading—Non-Joinder of Party Defendant— Matter of Abatement — V. S. 1179.</p> <p>V. S. 1179, providing that in an action on contract judgment may be taken against such defendants as are found liable, notwithstanding it is found that all the defendants are not jointly liable, doesmot authorize a judgment against one defendant upon a joint liability.</p> <p>The non-joinder of a party defendant is matter of abatement, and cannot be taken advantage of under the general issue.</p> <p>Two persons were declared against in assumpsit as partners. Service was made on only one defendant, who' alone appeared. Held, that, by pleading to the merits, this defendant waived his right to have his co-obligor before the court.</p>

Hall, Carleton A. Hall, and John A. Hall against the estate of Margaret F. C. Turner. Heard on the report of a referee at the September Term, 1904, Washington County. Judgment for the claimants, Carleton A. Hall and John' A. Hall, to recover the sum found due by the report. Judgment, pro forma, for the defendant' against Amos H. Hall, who excepted. The deceased was guardian of all the appellants and trustee of a money legacy to them from their grandfather.

Trespass for assault and battery. Plea, not guilty and self-defence. Trial by jury at the September Term, 1904, Chittenden County, Powers, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Trover for a quantity of hard wood two-inch plank. Plea, the general issue. Trial by jury at the September Term, 1904, Orleans County, Rowell, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. ■ After verdict, and before judgment, the defendant moved to set aside the verdict for the reasons stated in the opinion. This motion was overruled to which the defendant excepted.

Audita Querela by the trustee in bankruptcy of the bankrupt estate of Henry S. Mackay, to vacate a judgment, and execution issued thereon, rendered at the September Term, 1901, Washington County Court. Plea, the general issue. Trial by court at the September Term, 1904, Washington County, Rowell, J., presiding. Judgment that said judgment and exeqution be both set aside and held for nought, and that the plaintiff recover his costs. The defendant excepted.

Information for selling and furnishing intoxicating liquor without a license, in violation of No. 90, Acts 1902, with two counts for “keeping and exposing for sale.” Trial by jury at the December Term, 1904, Caledonia County, Tyler, J., presiding. Plea, not guilty. Verdict, “guilty of one joint offence;” judgment thereon. The respondents excepted.

Information in six counts for selling and furnishing intoxicating liquor without a license, in violation of .No. 90, Acts 1902, with two counts for “keeping and exposing for sale.” Plea, the general issue. Trial by jury at the December Term, 1904, Caledonia County, Tyler, J., presiding. Verdict, “guilty of one offence of selling.” Judgment thereon. The respondent excepted. The State’s evidence did not tend to show more than six offences of selling or furnishing.

Cass for negligence, brought by an administrator for the benefit of next of kin, under V. S. 2451-2452. Heard on demurrer to the declaration at the September Term, 1904, Chittenden County, Powers, J., presiding. Demurrer sustained, and declaration adjudged insufficient. The plaintiff excepted. The statute does not impose upon the defendant the duty of maintaining a lockup, but only grants it the right to do so, if it desires.

Trespass for false imprisonment. Plea, the general issue, with notice of justification under process. Trial by jury at the March Term, 1903, Franklin County, Tyler, J., presiding. At the close of all the evidence the court ordered a verdict for the defendants. Judgment on verdict. The plaintiff excepted. The writ upon; which the plaintiff was arrested was returnable before a justice of the peace at Richford, Vt. The opinion fully states the case.

State v. Stimpson was an information for statutory-rape. Plea, not guilty. Trial by jury at the March Term, 1905, Orleans County, Tyler, J., presiding. Verdict, guilty; judgment and sentence thereon. The respondent excepted. State v. Tee was an information for grand larceny. Plea, not guilty. Trial by jury at the December Term, 1904, Tamoille County, Munson, J., presiding. Verdict, guilty; judgment thereon. The respondent excepted.

General Assumpsit to recover the purchase price of a horse. Plea, the general issue. Trial by jury at the March Term, 1905, Orleans County, Tyler, J., presiding.. Verdict and judgment for the plaintiff. The defendant excepted. Any use of the property, after the discovery of the fraud, is a waiver of the right to rescind. Mayer v. Dwinell, 29 Vt. 298; Benjamin, Sales, § 675; Cookingham v. Dusat 41 Kan. 229; 41 Kan. 444; 105 Mass. 551; 83 N. Y. 300; 4 Mass. 502; 42 N. H. 316.

Gunural Assumpsit. Pleas, the general issue, payment, Statute of Limitations, and declaration in offset. Trial by jury at the June Term, 1900, Caledonia County, Taft, J., presiding. Verdict for defendants. Whereupon plaintiff moved to set the verdict aside on account of the alleged misconduct of the jury. On this motion the case was entered “with the court,” to be heard after testimony had been taken in support of said motion.

General Assumpsit for goods conditionally sold and delivered. Plea, the general issue. Trial by jury at the March Term, 1904, Rutland County, Tyler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Information for statutory rape. Plea, not guilty. Trial by jury at the September Term, 1903,. Chittenden County, Tyler, J., presiding. Verdict, guilty; judgment thereon. The respondent excepted. It was error to allow- the witness to state that the prosecutrix complained of the respondent. The witness might just as well have said “Charles Willett,” instead of using the pronoun. State v. Niles, 47 Vt. 83; State v. Carroll, 67 Vt. 497.

Complaint, by a License Commissioner of the town of West Rutland, for keeping and exposing for sale intoxicating liquor without a license, in violation of No. 90, Acts 1902. Plea, not guilty. Trial by jury at the March Term, 1904, Rutland County, Tyler, J., presiding. Verdict, guilty; and judgment thereon. The respondent excepted.

Special Assumpsit on a promissory note. The defendants severed in their defence, and each pleaded the general issue, with notice; Statute of Limitations; discharge of the International Company by plaintiff, and payment. Replications ; ‘ similiter to first plea; waiver, or estoppel, to- second; traverse of third. Rejoinders-by Prouty and Miller: traverse to second replication; similiter tp third.

Case for negligence. Plea, the general issue. Trial by jury at the March Term, 1904, Washington County, Stafford, J., presiding. Verdict and judgment for the plaintiff. The •defendant excepted. No exception was taken to the charge. The opinion states the case.

Assumpsit for breach of promise to marry. Plea, the general issue, and notice. Trial by jury at the March Term, 1904, Washington County, Stafford, J., presiding. Verdict and judgment for the plaintiff: The defendant excepted.

Information for keeping intoxicating liquor with intent to sell the same without authority. Plea, not guilty. Trial By jury at 'the June Term, 1905, Caledonia County, Mun-son, J., presiding. Verdict, guilty; judgment and sentence thereon. The respondent excepted. Respondent’s defence was that he did not keep the malt ■extract for sale as a beverage, but kept it for sale, and sold it, only as a medicine. Our liquor law does not apply to the sale of medicinal preparations.

Trespass for assault and battery. Pleas, the general issue, molliter manus imposuit in defence of the possession of defendant’s dwelling, self-defence, and' accord and satisfaction. Trial by jury at the December Term, 1904, Windsor County, Watson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The court should have complied with defendant’s request to charge.

Case for negligence. Plea, not guilty. Trial by jury at the June Term, 1901, Caledonia County, Munson, J., presiding. Verdict and judgment for the plaintiff. The defendants excepted.

<p>Quo• Warranto — Misconduct of Petitioner.</p> <p>A complaint for a quo warranto is addressed to the sound discretion of the Court, and it would be unbecoming for this Court to act on the complaint of a private relator, who stands as a wrongdoer in respect of the very thing in issue.</p> <p>Where, on a complaint by a private relator for a quo warranto to try title to an office, for which relator and respondent were opposing . candidates it appears that intoxicating liquor was, with some system and to considerable extent, furnished to voters at the election, while the polls were open, in the interest of the relator and through his connivance, the writ will be denied on the ground of public policy.</p>

<p>Contracts — Consideration—Officer’s Interest in Attached Property — Recovery of Price by Officer — Reference—Effect on Pleadings — Amendment' to Conform with Proof — Trustee Process — Liability of Trustee — Pleading—General Issue— Evidence — V. S. 1374.</p> <p>Where an officer, having attached certain iron on several writs, while the attachments were in force permitted the representative of the defendant in the attachment suits to sell the iron on the agreement of the purchaser with the officer to pay the latter the purchase price, the surrender of the officer’s special property in the iron was a sufficient consideration for the purchaser’s promisé to pay; and the officer may recover against the purchaser, though his writs have been satisfied by execution sales of other property attached.</p> <p>In general assumpsit by an officer to recover the purchase price of property sold after he had attached the same, the case having been referred by the parties, it was immaterial whether general assumpsit would lie, since by the reference the cause of action was referred, and the declaration was adaptable by amendment to the facts found, without changing the nature of the action.</p> <p>Plaintiff, who was a deputy sheriff, haying attached certain iron on several writs, permitted it to be sold on purchaser’s agreement to pay the price to plaintiff. After having made plaintiff á partial payment, the purchaser was summoned as trustee in a suit against the attachment defendant, and suffered judgment therein by default, and paid the judgment. Held, that, plaintiff's writs having 'been satisfied out of other property, plaintiff, in an action against the purchaser for the price of the iron, was the “representative” of the attachment defendant, within the meaning of V. S. 1374, discharging a trustee from demands by a defendant for credits paid by force of a trustee judgment, and. allowing the trustee, as against such defendant or his “representative,” to give evidence ■of such special matter in discharge under the general issue.</p>

Trespass for assault and battery. Pleas, the general issue, self-defence, and defence of personal property. Replications, similiter and de injuria. Trial by jury at the September Term, 1903, Rutland County, Munson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion fully states the case. The defendant was justified.

Case for negligence. Plea, the general issue. Trial by jury at the March Term, 1904, Rutland County, Tyler, J., presiding. Verdict and judgment for plaintiff. The defendant excepted. Plaintiff’s intestate was the engineer on the engine drawing the “Flyer.” On January 2, 1903, Cowee was the engineer running engine numbered 192, which was drawing a train from Rutland tO' Shelburne, and one Parris was the conductor of Said train.

Appead from the final decree of the'Probate Court distributing the estate of Julia F. Woodward. She deceased at Westminster, September 29, 1899, leaving a will which was duly probated by the Probate Court within and for the district of Westminster in the State of Vermont, on the third day of February, 1900.

Appear from the final decree of the Probate Court distributing the estate of Julia F. Hickok, and holding that five foreign religious societies, who were legatees, were exempt from the .collateral inheritance tax imposed by No.- 46, Acts 1896. Heard on an agreed statement at the March Term, 1904, Chittenden County, Munson, J., presiding. Judgment, pro forma, that said legacies are subject to said tax. Said estate excepted.

Information for being possessed of two- wild deer during the closed season for hunting, and taking wild deer in- violation of No. 94, Acts 1896, as amended by No-. 108, Acts 1898. Heard on demurrer to the information at the March Term, 1905, Franklin County, Rowell, J., presiding. Demurrer overruled, pro forma, and information adjudged sufficient. The respondent excepted. No. 128, Acts 1904, does not purport to- amend any other law.

Appeal in Chancery. Heard on bill, answer, and master’s report at the December Term, 1904, Orange County, Haselton, Chancellor. Decree that the deed from the defendant to the oratrix be reformed so as to convey the “gore-land.” The defendant appealed. The opinion states the case. In order that the deed may be reformed on the ground of mistake, such mistake must have been mutual, and the minds of the parties must have met on some agreement. 24 Am. & Eng.

CompeainT Eor Bastardy. Pleas, the general issue, and release under seal. Heard at the September Term, 1905, Chittenden County, Haselton, J., presiding, upon an agreed statement as to the sufficiency of said release. The court ruled that said release is not a bar to the action. To this ruling the defendant excepted. Cause passed to the Supreme Court before hearing on its merits. The opinion states the substance of the agreed statement.

Case for deceit.- Plea, the general issue. Trial by jury at the December Term, 1904, Windsor County, Watson, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted.

Information for keeping and exposing intoxicating liquor for sale in violation of No. 90, Acts 1902. Heard on demurrer to the information at the December Term, 1904, Caledonia County, Tyler, J., presiding. Demurrer overruled, pro forma, and information adjudged sufficient. The respondent excepted.

Petition eor Mandamus -to the Auditor of Accounts, brought to the Supreme Court for Rutland County at its October Term, 1904. Heard at the January Term, 1905, on petition, answer, and testimony taken and filed. The opinion fully states the case. The vouchers required by law to be kept in the office of the State Auditor are public records. 24 Am. & Eng. Enc. 159, 170-; State ex rel.

Assumpsit on a fire insurance policy. Plea, the general •issue with notice of the tender and of the other special matter mentioned in the opinion. Trial by jury at the September Term, 1904, Windsor County, Watson, J., presiding. Verdict ordered for the defendant to- recover its costs since the time of the tender; and judgment thereon. The plaintiff ex-•cep-ted. The opinion fully states the case. The adjustment contract always remained executory.

Habeas Corpus, brought to the Supreme Court for the County of Washington at its October Term, 1905, and then heard. The opinion states the case. The respondent was not “in execution,” and so was entitled to be bailed. Ex parte Lees. E. B. & E. 830 ; King v. Waddington, 1 East 159; 3 Salk 58; The King v. Plozuer, 8 T. R. 314; Rex v. Brooks, 2 T. R. 190; Corbett v. State, 24 Ga. 391; 2 Hawk. P. C. ch. 15, § 81; King v. Marks, 3 East 163; Rex v. Reader, 1 Stra. 531.

Case for negligence. Plea, the general issue. Trial by jury at the December Term, 1903, Windsor County, Munson, J., presiding. Verdict ordered for the defendant, and judgment thereon. The plaintiff excepted. The opinion states the case. Defendant was negligent in allowing the locomotive to be out of repair. Carbine v. R. R. Co., 61 Vt. 351; Bancroft v. R. R. Co., 67 N. H. 466; Demars v. Glen Mfg.

Case for negligence. Heard on demurrer to the declaration at the April Term, 1905, Windham County, Powers, J., presiding. Demurrer overruled, declaration adjudged sufficient. Defendant excepted. The declaration is defective in not alleging that defendants had notice of the condition complained of. Osier v. Hinesbury, 44 Vt. 220.

Case for deceit in the sale of land. Plea, the general issue. Trial by jury at the December Term, 1904, Caledonia County, Tyler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Whitcomb H. Church and Serena K. Church, his wife, were residents of Lebanon, N. H. Serena died testate, and Whitcomb H. subsequently deceased, leaving an estate in Vermont which is being settled in the Probate Court within and for the district of Hartford in this State. This case is an appeal from the disallowance by the commissioners in said Probate Court of claims presented against the estate of said Whitcomb H. Church by Wm.

Indictment against ten persons for conspiracy. Five of the' respondents were summoned before the grand jury and gave self-criminating evidence under oath, and they severally pleaded that in abatement. The other five respondents jointly pleaded that in abatement, though they themselves were not called before the grand jury. Heard on demurrer to said pleas in abatement at the June Term, 1905, Caledonia County,’ Munson, J., presiding.

Indictment for murder. Heard on demurrer to plea '■in abatement of the indictment at the October Term, 1905, Essex County, Powers, J., presiding. Demurrer sustained, .and plea adjudged insufficient. Respondent'excepted. Blodgett was disqualified to act as grand juror, and the •indictment is illegal.

Petition eor mandamus brought to the Supreme Court for Grand Isle County at its October Term, 1905. Heard at that term on petition and answer. This is a complaint for a writ of mandamus to compel a high school in the town of Grand Isle. Only two- of the board of school directors are made parties, and they appear and answer, but the town does not appear. The case was heard on complaint and answer by agreement.

Information for keeping and exposing intoxicating .liquor for sale, without a license, in violation of No. 90, Acts 1902. Plea, not guilty. Trial by jury at the December Term, 1904, Caledonia County, Tyler, J., presiding. Verdict, “guilty of one offence.” Judgment on verdict. The respondent excepted. The information is in four counts.

Appeal in Chancery. Heard on demurrer to the bill at the March Term, 1905, Rutland County, Pow-ers, Chancellor. Demurrer sustained, pro forma, and bill adjudged insufficient. The orators appeal. The orators have no adequate remedy at law.

TrovRr for an ox. Plea, the general issue. Trial by court at the September Term, 1904, Windham County, Start, J., presiding. Judgment for plaintiffs for $40, which the court found to- be the value of the ox at the time of its conversion, and costs. The defendant excepted. The opinion states the substance of the facts found by the court.

Case for injuries caused by a defective bridge. Plea, the general issue. Trial by jury at the June Term, 1905, Windsor County, Haselton, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion sufficiently states the notice. The notice is sufficient.

<p>Implied Contracts — Quasi Contracts — Volunteers—Biability of Administrator for Services Rendered Before His Appointment.</p> <p>To render a person liable on a promise implied in fact, it must appear that he assented to the obligation.</p> <p>Liability on a quasi promise, or promise implied in law, exists irrespective of intention, and may flow either from the doctrine that one shall not be allowed to enrich himself unjustly at the expense of another; or from the doctrine that where an obligation is imposed by law upon one to do an act because of an interest in the public to have it' done, and that one fails to do> it, he who- does do it, expecting compensation, may recover therefor of him on whom the obligation is imposed.</p> <p>No inferences can be drawn by the court from agreed facts, because the agreement is the voluntary act of the parties.</p> <p>In assumpsit against an administrator, the agreed statement showed only that before and at the time of his death defendant’s testate was living on the town farm as superintendent thereof, and that plaintiff resided with him and was engaged in breaking horses of his own and horses of the testate; that after the death of said testate, the overseer told plaintiff that the town would neither care for the testate’s horses nor furnish them food; that thereafter plaintiff fed and cared for said horses till they were taken by defendant as administrator, which was as soon as he was appointed ana qualified as such. Held, that, for aught that appears, plaintiff was a mere volunteer who expected no compensation, and therefore, he is not'entitled to recover.</p> <p>The defendant was under no duty in respect of the horses during the time in question, for he was not administrator, and did not know, so far as appears, and had no- interest to know, either the condition of things or what plaintiff was doing.</p>

Debt on Judgment. Heard at the June Term, 1905, Windsor County, Haselton, J., presiding, on the claimant’s motion to- dismiss the appeal for that “neither the ad damnum in plaintiff’s writ, nor the sum demanded in the declaration, nor the specifications or exhibits of plaintiff exceeded the sum of twenty dollars.” Motion overruled. The claimant excepted.

<p>Petition for New Trial — Newly Discovered Evidence — Affidavits — Sufficiency—Allegations of Due Diligence.</p> <p>The statement, in affidavits accompanying a petition for a new trial based on newly discovered evidence, that the affiants “used due diligence” seasonably to obtain such evidence, is mere opinion, and insufficient to show the requisite diligence.</p> <p>The newly discovered evidence revealed by affidavits attached to a petition for a new trial in behalf of one convicted of a simple assault, held not likely to produce a different result on another trial.</p>

<p>Case for negligence. Plea, the general issue. Trial by jury at the December Term, 1904, Windsor County, Watson, J., presiding. Verdict ordered for the defendant to recover its costs; and judgment thereon. The plaintiff excepted.</p>

<p>Assumpsit for Labor — Misconduct of Counsel — Argument— Unwarranted Assumption — Reversible Error.</p> <p>In assumpsit for labor, it appeared that defendant gave plaintiff, who could not read, a check for $5 on which was written, “Balance in full to date.” Plaintiff cashed the check and testified that the balance due him was $36 and that some time later defendant drew a check for $18 and offered it to plaintiff in full settlement, and that plaintiff refused to receive it. Defendant testified that he called plaintiff’s attention to what was written on the $5 check, and told him that, if he accepted it, it would he in full settlement of his claim, and denied that he drew and offered plaintiff the $18 check. Held, that the question asked the jury hy plaintiff’s counsel in argument, “What is the feeling towards an intelligent man who takes advantage of a poor man’s ignorance?” though unwarranted by the evidente, and based upon an assumption of defendant’s misconduct was not, in the circumstances, reversible error.</p> <p>Where plaintiff gave defendant notice before trial to produce the stubs of all checks drawn by him between certain dates and also all checks then in his possession, but defendant complied by producing only three checks, claiming that his stub books were lost, plaintiff’s counsel was justified in arguing that defendant had failed to produce papers that were or ought to have been in his possession, and that it might be inferred therefrom that there was something wrong in the transaction.</p>

Indictment for forgery. Heard on demurrer to the indictment at the September Term, 1905, Washington County, Rowell, J., presiding. Demurrer overruled, pro forma, and indictment adjudged-sufficient. The respondent excepted. At common law, an intent to defraud is essential to constitute the crime of forgery. State v. Redstrak, 29 N. J. L. 365; Rex v. Hodgson, (Dears & B. 3) 5 Law Crim. Def. 7; State v. Ward, 7 Baxt. 776; Bamrnn v. State, 15 Ohio 717 (45 Am.

Case for negligence. Plea, the general issue. Trial by-jury at the March Term, 1905, Essex County, Haselton, J., presiding. Verdict directed for the defendant, and judgment thereon. The plaintiff excepted.

General Assumpsit. .Heard on the report of a referee and exceptions thereto at the December Term, 1905, Caledonia County, Munson, J., presiding. Exceptions overruled. Judgment on the report for the plaintiffs for $500, and interest from September 26, 1904, and costs. The defendant excepted. The opinion states the case. The subject-matter of the Johnson notes was introduced by defendant.

Covenant on a contractor’s bond given in conformity to the Act of Congress of August 13, 1894. Heard on demurrer to the declaration at the September Term, 1904, Orleans County, Rowell, J., presiding. Demurrer Overruled, pro forma, and declaration adjudged sufficient. The defendant excepted.

Case for negligence. Heard on the report of a referee and exceptions thereto' at the October Term, 1904, Essex County, Start, J., presiding. Judgment for the defendant to recover its costs. The plaintiff excepted. The opinion states the case. The obstruction of the crossing was wrongful, and was a link in the chain of causes which produced the injury.

Indictment for perjury. Heard on demurrer to the in- . dictment at the June Term, 1905, Caledonia County, Munson, J., presiding. Demurrer overruled, pro forma, and indictment adjudged sufficient. The respondent excepted. The indictment should have alleged by whom the oath was administered, and show that such person was legally qualified h> administer an oath. 2 Bish. New Crim.

Indictment for selling and furnishing intoxicating liquor, in violation of No. 90, Acts 1902. Heard on demurrer to the indictment at the June Term, 1903, Orange County, Munson, J., presiding. Demurrer overruled, pro forma, and indictment adjudged sufficient. The respondent excepted. A discussion of the limitations which the Legislature must observe in the enactment of police regulations may be found in the following cases. People, ex rel.

General Assumpsit on a policy of life insurance. Plea, the general issue with notice of special matter. Trial by jury at, the September Term, 1905, Rutland County, Watson, J., presiding. Verdict ordered for the plaintiff, and judgment thereon. The defendant excepted.

Appear from a decree of the probate court establishing an instrument as the will of Luke White. George Shippee, proponent, and George Rice, contestant. Trial by jury at the September Term, 1905, Windham County, Rowell, J.,-presiding. Verdict and judgment for the proponent. The contestant excepted.

Indictment for murder. Plea not guilty. Trial by jury at the March Term, 1905, Franklin County, Rowell, J., presiding. Verdict, guilty of manslaughter, judgment and sentence thereon. The respondent excepted. The respondent justified the homicide in self defence.

Information for grand larceny. Plea, not guilty. Trial by jury at the June Term, 1905, Addison County, Watson, J., presiding. Verdict, guilty; judgment and sentence thereon. The respondent excepted. Robert Hays was the only witness who1 gave direct evidence as to- the respondent being a party to> the stealing of the heifer. The opinion concisely states the charge of the court in respect of the alibi.

Appeal in Chancery, Grand Isle County. Heard at Chambers, July 31, 1905, on pleadings, master’s report, and exceptions thereto. Rowell, Chancellor. Exceptions overruled. Decree of redemption for the orators “according to the prayer of the bill and the agreement found by the master.” The defendants appealed.