Volume 79 — Vermont Reports

Assumpsit on V. S'. 1183. Heard at, the September Term, 1903, Rutland County, Watson J., presiding, on defendant William Haverly’s motion to dismiss for that the cause of action is not founded on a contract express or implied, but on a tort; on defendant S. L. Huffmere’s demurrer to the declaration; and on motion by the Delaware and Hudson Company, a trustee, to quash the return of service upon it.

vCasu for negligence. Plea, the general issue. Trial by jury at the March Term, 1905, Washington County, Munson, J., presiding'. Verdict and judgment for the plaintiff. The defendant excepted. The opinion fully states the case. This case'has been once before in the Supreme Court; see 77 Vt. 7.

Appeal in Chancery. Heard on demurrer to the bill at the September Term, 1905, Rutland County, Watson, Chancellor. Decree, pro formen, sustaining the demurrer and dismissing the bill. The defendants appealed. The opinion sufficiently states the case. Under the act of 1896 the court of chancery is compelled to take jurisdiction. There is no discretion. Dieter v. Shafter, 70 Vt. 150.

Information for an attempt to break out of a common-jail. Plea, not guilty. Trial by jury at the 'December, Term, 1905, Windsor County, Miles, J., presiding. Verdict guilty; and judgment thereon. The respondent excepted. The respondent also demurred to the information. Demurrer overruled, and information adjudged sufficient, to which respondent excepted. Exception ordered to lie. The opinion states the case.

Habeas Corpus returnable at Montpelier in Washington County before Rowell, C. J., and by him duly adjourned into the Supreme Court at its May Term, 1906, and heard at that term.

Book Account. Heard on the report of an auditor at the March Term, 1905, Franklin County, Rowell, J., presiding. Judgment for the plaintiffs for the amount found due by the auditor. The defendant excepted. No exceptions to the auditor’s report were filed.

General Assumpsit by the surviving partner. Pleas, the general issue, Statute of Limitations, payment and declaration in offset in general assumpsit. Trial by jury at the September Term, 1904, Washington County, Tyler, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The fact that the load of wood was delivered to the surviving partner did not prevent it from being a payment on the partnership account.

Appeal in Chancery, Chittenden County. Heard at Chambers January 20, 1905, on bill, answer, and master’s report, Hcuselton, Chancellor. Decree, “That the expenses of the receivership be first paid out of the funds in the hands of the receiver, and that the balance in his hands be distributed, pro rata, among all the creditors of the Hygiene Company.” Spear Bros, appealed. The opinion fully states the case.

Appeal to the Supreme Court for the County of Rutland, by the Rutland Railroad Company, from an order of the Railroad Commissioners. Heard at the May term, 1906. The opinion .states the case. An objection to the jurisdiction of the person is waived by a general appearance, and especially when the person so appearing goes further and appeals, under a statutory provision, to a court of last resort. Kansas R. R. Co. v. Rodebcmgh, 5 Am. St. Rep. 715; Gay1 v. Coico, 33 Am.

Trespass and Cask. Heard on motion to' dismiss defendant Rosselle’splea in the nature of a plea to the jurisdiction, and on demurrer to her plea in abatement, at the September Term, 1903, Chittenden County, Tyler, J., presiding. Motion tO' dismiss denied; demurrer overruled; plea in abatement adjudged sufficient, and judgment that the writ abate as to defendant Rosselle, and she recover her costs. The plaintiff excepted.

Appear From a Decree oe the Probate Court granting administration on the estate of George R. Clark and appointing an administrator thereof; Arthur G. Whitham, appellant; Eyman W. Redington, the administrator appointed, •appellee. Heard on appellee’s motion to dismiss the appeal, at the December Term, 1905, Windsor County, Miles, J., presiding. Motion denied.- The appellee excepted. The opinion states the case. The appellant has no right of appeal.

Debt on Judgment. Plea, accord and satisfaction. Trial by court in the City Court of the city of Burlington, Mower, Judge. Judgment for the defendant. The plaintiff excepted. The judgment declared upon was for $105.46, and defendant’s liability thereon was undisputed. The suit was settled for $95.00.

Information for bigamy. Plea, guilty. Trial by court upon an agreed statement of facts at the March Term, 1906, Washington County, Rowell, presiding. Judgment, guilty; and sentence thereon. The respondent excepted.

General Assumpsit for rent of a farm. Pleas, the general issue, payment, Statute of Limitations, and offset. Trial by jury, at the March Term, 1905, Washington County,.. Munson, J., presiding. Verdict and judgment for the plaintiff.. The defendant excepted. The defendant’s sixth exception is stated as follows: “Mrs. Walker was improved as a witness by the plaintiff. She-testified to what was done and said on several occasions when she saw Mr. Dodge.

Petition Eor Mandamus to ■'compel the defendants, as members of the Board of Civil Authority of the town of High-gate, to fully canvass and count all the ballots cast at an annual town meeting on the question whether that town should issue licenses for the sale of intoxicating liquors, brought to the Supreme Court for Franklin County at its May Term, 1906, and then heard on demurrer to the petition.

Tresspass for assault and battery against John Ladd, Daniel Ladd, and Eugene Spicer. Daniel Ladd’s plea, son assault demesne. Replication, de injuria. Plea of John Ladd and Eugene Spicer, the general issue. Trial by jury at the June Term, 1905, Orange County, Powers, J., presiding. At the close of the plaintiff’s evidence the court directed a verdict in favor of Eugene Spicer. Verdict as to the other defendants, not guilty, and judgment thereon. The plaintiff excepted.

Appeag in Chancery, Washington County. Heard at Chambers, December n, 1905, on pleadings, master’s report, and defendant’s exceptions thereto. Decree for the orators-The defendant appealed. The opinion states the case. The testimony of Oughtney Jangraw was hearsay, and so inadmissible. State v. Thibecm, 30 Vt. 100; Penniman et al. v. Patochen, 6 Vt. 325; Bilis v. Cleveland, 55 Vt. 358; Judevine v. Weeks, 57 Vt. 278; So. Bx.

AppEae in Chancery, Washington County. Heard at Chambers, November 21, 1905, on the pleadings, master’s report and defendant’s exceptions thereto, Rowell, Chancellor. Decree for the orator. The defendant appealed. Unless there is a dwelling house owned by the housekeeper actually on the place, or one in process of erection and designed for a home, there is no homestead.

General Assumpsit for the price of an automobile sold and delivered. Pleas, the general issue, declaration in offset, consisting of the common money counts, a count to recover commissions on certain sales of automobiles made by plaintiffs in defendant’s territory, a count to recover damages for the alleged failure of plaintiffs to equip said automobile with a fusible plug and steam air pump, and for failure to properly demonstrate same.

Replevin by a trustee in bankruptcy. Plea, the general issue. Trial by jury at- the March Term, 1905, Chittenden ■County, Watson, J., presiding. Only special verdicts were returned, upon which defendants had judgment for the property replevied, for one cent damages and their costs.

Petition eor Mandamus to compel selectmen to call a special town meeting for the election of officers, brought to the Supreme Court for Addison County at its May Term, 1906, and then heard on petition, answer, and testimony taken and filed.

Assumpsit on a policy of life insurance. Plea, the general issue and notice. Trial by jury at the September Term, 1905, Washington County, Powers, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The court’s instruction on the question of illness referred to in the third exception, was as follows; “A mere temporary indisposition, not serious in its nature, is not an illness within the meaning- of this inquiry.

Appeal in Chancery, Rutland County, March Term, 1905, Powers,, Chancellor. Heard first on.defendant’s motion, supported by affidavits, to recommit the master’s report. Motion denied. Then heard on bill, answers, and master’s report.

Appear in Chancery. Heard on bill, answer, and master’s report at the December Term, Caledonia County, 1905, MunsonChancellor.

Special Assumpsit by a servant against his master for breach of an executory contract of employment. Plea, the general issue with notice. Trial by jury at the September Term, 1904, Chittenden County, Powers, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion fully states the case. The lease by defendant of its plant, business, and assets was not a breach of its contract with the plaintiff.

Case for negligence. 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. This case has been once before in the Supreme Court, 73 Vt. 35. Since the first trial, plaintiff filed a new declaration, relying upon his ignorance and inexperience and defendant’s duty to warn and instruct.

Appeal in Chancery, Grand Isle County. Heard at Chambers, April 22, 1905, on demurrer to the bill. Rowell, Chancellor. Demurrer sustained, bill adjudged insufficient and dismissed with costs, and case referred to a master to determine the injunction damages. The orator appealed. The opinion states the case.

Information containing six -counts charging the illegal sale of intoxicating liquor on different dates, and two counts charging illegal keeping for sale on different dates, all in violation of No. 90, Acts 1902. Pleas, not guilty,- and a special plea of a former conviction of the same'offences. Trial by jury on issue joined on said special plea, at the December Term, 1905, Caledonia County, W'atson, J., presiding.

Case for injury to a horse caused by the alleged insufficiency of a highway bridge. Plea, the general issue. Trial by jury at the March Term, 1905, Franklin County, Rowell, J.r presiding. Verdict and judgment for the plaintiff. The defendant excepted. At the close of all the evidence defendant moved for a verdict on the grounds stated in the opinion. Motion denied, to which the defendant excepted. Thereupon the parties agreed upon the amount of the verdict for the plaintiff..

Indictment for petty larceny. Plea, nót guilty. Trial by jury at the March Term, 1905, Washington County, Rowell, 'J., presiding. Verdict guilty; judgment and sentence thereon. The respondent excepted. The ruling reviewed in the opinion, as to the admissibility of the evidence in rebuttal, was made as matter of law, and not of discretion. The opinion fully states the case.

Replevin for a cart. Plea, the general issue. Trial by court at the March Term, 1906, Chittenden County, Miles, J., presiding. Judgment for the defendant for the return of the property, one cent damages, and his costs. The plaintiff excepted. The opinion states the case. • ■ The defendant has a right to the possession of the cart as against the plaintiff (1) by statute, V. S. 2279.

Appeal to the Supreme Court for Rutland County, by the Rutland Railroad Company, from an order of the Railroad' Commissioners. Heard at the October Term, 1906. The opinion fully states the case.

Indictment for killing a wild deer during the closed season. Plea, not guilty. Trial by jury at the December Term, 1905, Lamoille County, Munson, J., presiding. The respondent excepted.

<p>Equity — Jurisdiction—Bill to Construe Will — No. 40, Acts i8pó — Trusts—Executors—Trustee De Son Tort — Injunction — Multiplicity of Suits — Jurisdiction of Equity in Aid of Probate Court.</p> <p>The court of chancery can neither restrict nor supplant the jurisdiction of the probate court, nor supervise its action, but can intervene only in aid of that court.</p> <p>Before the court of chancery will take jurisdiction under No. 40, Acts 1896, providing that “in all cases where the terms of a will are doubtful or in dispute,” any interested legatee, devisee, or heir may bring a bill in chancery to have the will construed, it must appear not only that the terms of the will are doubtful or in dispute, and that the orators have the requisite interest, but also that something substantial will be accomplished by the intervention of that court.-</p> <p>In a suit in chancery, under No. 40, Acts 1896, for the construction of a will, brought by the legatees against the executors, the bill alleged that the dispute consists of the claim made by the orators that one of them and his family are entitled, under the will, to certain annuities beginning with the death of the testatrix, which claim is denied by one of the executors, who is the surviving husband of the testatrix, and entitled under the will, as the orators claim, to only the income of the estate during his life, subject to the payment of said annuities, but who claims that, by the terms of the will, said annuities are to begin at his death, and that, if the income of the property is not sufficient for his support, he has a right to use the principal for that purpose; that said executor filed in the probate court, where the estate is in process of administration, a waiver of the provisions of the will in his favor, which waiver is illegal; that said executor is allowed by-his co-executors to have the possession and control of the whole estate, which he is squandering. Held, on demurrer to the bill, that the court of chancery had no jurisdiction either to construe the will, to enjoin the defendants, or to appoint a receiver and administer the estate.</p> <p>Since the alleged dispute as to the construction of the will is between the surviving husband and said annuitants, who claim that the waiver of the provisions of the will in his favor, made by the former in the probate court, was illegal, the settlement of the alleged dispute can be of no importance, unless that waiver was in fact illegal, a question which the court of chancery has no jurisdiction to determine.</p> <p>The mere allegation in the bill that the account filed in the probate court by defendants as executors is “misleading and untrue and in fraud of the rights” of the orators, is only a conclusion of the . pleader; the facts should be alleged so that the court may judge whether such conclusion is warranted.</p> <p>If, as alleged in the bill, said surviving husband’s co-executors have allowed him “to control, manage and appropriate to his own use, not only the entire income, but also the principal of the estate,” the wrong, if any, is theirs, and they may be removed by the probate court, which has full jurisdiction of that matter.</p> <p>The allegations of the bill examined and compared and held that it does not state in clear and unambiguous language that the surviving husband is wasting and threatening to waste the estate, but that it appears that the estate is and has been in the possession of the executors and properly managed.</p> <p>If, as alleged in the bill, said surviving husband’s co-executors have allowed him “to control, manage, and appropriate to his own use, not only the entire income, but also the principal of the estate,” then his possession was rightful and he was not a trustee de son tort. Bailey v. Bailey, 67 Vt. 494, distinguished and explained.</p> <p>Equity does not have jurisdiction of all trusts. It has no jurisdiction over trusts given to the exclusive jurisdiction of probate or other courts, nor of money held in trust.</p> <p>It is not enough to allege that a trust is involved in order to give the court of chancery jurisdiction. It must further appear that the trust is one of which the court of chancery has either conclusive, auxiliary, or concurrent jurisdiction.</p> <p>As the trust relation involved in this case is that of executor, over which the probate court has exclusive jurisdiction, the court of chancery cannot take jurisdiction on the ground that a trust is involved.</p> <p>The facts that one of said annuitants is a man eighty years old, and in need of the annuity for his immediate use and support, cannot give the court of chancery jurisdiction on the ground of an inadequate remedy at law.</p> <p>The evident purpose of the bill is to transfer the settlement of the estate from the probate court to the court of chancery, and no reasons are alleged why that court should take jurisdiction on the ground of preventing a multiplicity of suits, which might not be urged in every testate estate.</p>

<p>Pleading — Discharge in Bankruptcy — Mvidence.</p> <p>The fact that, at the trial of an action of assumpsit before a justice, defendant’s counsel stated that defendant was in bankruptcy and moved for a verdict, did not operate as a stay of proceedings.</p> <p>In an action of assumpsit, where the evidence relevant to the issues made by the pleadings was received without exceptions, and on those issues the court found against the plaintiff, judgment for the defendant to recover his costs was properly rendered, notwithstanding some evidence not relevant to said issues, and not prejudicial, was received under general objections and exceptions.</p>

Appeal in Chancery. Heard on demurrer to the bill at the March Term, 1905, Washington County, Munson, Chancellor. Decree, strictly pro forma, sustaining the demurrer and dismissing the bill. The orator appeals. The material allegations are stated in the bill. Courts of equity always have jurisdiction in cases of fraud, except in cases of obtaining a will by fraud. Story Eq. Jur. §184; Chesterfield v. Jams'en, 2 Ves. 155.

Information for furnishing- intoxicating liquor in violation of No. 115, Acts 1904. Plea, not guilty. Trial by jury in the City Court of the city of St. Albans, Tillo ts on, Judge. Verdict, guilty; and judgment thereon. The respondent excepted. The respondent moved the court to¡ arrest judgment for want of jurisdiction. Motion denied, to which the respondent excepted. The charter of the city of St. Albans is No. 150, Acts 1896.

Grn:£ral Assumpsit for electrical .power furnished. Pleas,'the general issue, and declaration in offset. Trial by jury at the March Term, 1902, Washington County, Start, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. Plaintiff brought two suits to recover for power furnished in July and August, respectively, which suits were tried together.

Moore, as executor of the will of Bur-rill Lane, presented by Fred Johonnott, as administrator of the estate of said'Horace L. Moore; Edward B. Lane, Effie C. Aiky, William- Fane, and Fred C. Fane, legatees under the will of Burrill Fane, appellants. Heard on the report of a commissioner and appellants’ exceptions thereto-, at the March Term, 1905, Chittenden County, Watson, J., presiding.

. Assumpsit, under V. S. 3171, to- recover for expenditures for the support of a pauper. Plea, the general issue. Trial by jury at the March Term, 1906, Chittenden County, Miles, presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Case for slander. Plea, the general issue. Trial by jury at the December Term, 1905, Windsor County, Miles, J., presiding. 'Verdict and judgment for the defendant. The plaintiff excepted.

Appear in Chancery. Heard on demurrer to the bill at the June Term, 1906, Orange County, Tyler, Chancellor. Demurrer sustained and bill dismissed, n The orators appealed. The opinion states, the material allegations of the bill. Courts of equity will specifically enforce a contract made by a husband with his wife and others, which involves the wife’s separate property.

General and Special Assumpsit. Plea, the general issue. Trial by court at the June Term, 1906, Windsor County, Rowell, J., presiding. Judgment for the plaintiff. The defendant excepted.

AppEae in Chancery. Heard on pleadings and master’s report at the Match Term, 1905, Washington County, Rowell, Chancellor. Bill dismissed. The orators appealed. The fact that the grantor pointed out the right of way to the grantee at the time the deed was delivered fixed the location thereof. Kinney v. Hooker, 65 Vt. 333.

Append from, the decision of commissioners allowing the claim of Mary J. Pond presented against the estate of Adelia Pond; T. Alison Webster, execu-tor. The record does not show the pleadings. Trial by jury at the June Term, 1905, Addison County, Watson, J., presiding. Verdict and judgment for the claimant. The defendant appealed.

Appear in Chancery, Windsor County. Heard at Chambers, March 21, 1905, on pleadings, master’s report and exceptions thereto, Watson, Chancellor. Exceptions overruled and decree perpetually enjoining the. defendants “from erecting or maintaining a dam or other obstruction in the stream below the orator’s said lands, which will cause the waters of said stream tO' set back and flow upon the lands of the orator.” The defendants appealed. The opinion fully states the case.

Petition by one divorced parent against the other for custody of their minor child. Trial by court at the June Term, 1906, Lamoille County, Powers, J., presiding. Judgment awarding the custody of the child to the petitioner. The petitionee excepted. The petitionee filed a plea to the. jurisdiction of the court, relying upon the pendency of the same subject-matter before a judge of the Supreme Court on habeas corpus proceeding. T01 this plea the petitioner demurred..

Assumpsit on V. S. 1183. . Heard on demurrer to the declaration and motion to dismiss, at the December Term, 1905, Windsor County, Miles, J., presiding: Judgment sustaining the motion and dismissing the declaration. The plaintiffs excepted. See ante page 1.

Arread in Chancery. Heard on pleadings and master’s report at the April Term; 1905, Windham County, Tyler, Chancellor. Decree for the orator, including the item of ■taxes. The defendants appealed. On December 14, 1858, Jared Howard was the owner of what is here called the “Home Farm,” then occupied by himself and wife as a homestead in the toWn of Jamaica.

Indictment for practicing medicine without a license, in violation of No. 133, Acts 1904. Heard on demurrer to the indictment at the June Term, 1906, Lamoille County, Powers, J., presiding. 'Demurrer overruled, pro forma, and indictment adjudged sufficient. The respondent excepted. The opinion states the material part of the indictment. The statute is unconstitutional, in that it deprives a physician of his property without due process of law.'.

Trover and Case. Plea, not guilty. Trial by jury at the March Term, 1906, Washington County, Rowell, J., presiding. Verdict for the plaintiff to1 recover $226 and costs, and judgment thereon. The defendants excepted. The opinion fully states the case.

Appeal in Chancery. Heard on the pleadings and master’s report at the December Term, 1905, Eamoille County, Munson, Chancellor. Decree for the petitioner. The defendant appealed.

Debt on an administrator’s bond. Plea, a release under seal. Replication, that the release was procured by fraud. Trial by court at the December Term, 1905, Windsor County, Miles, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case.

Appeal in Chancery, Windham County. Heard at Chambers, June 4, 1906, on the pleadings, master’s report and the orator’s motion for a receiver. Rowell, Chancellor. Decree, that the bill be dismissed with costs b> the defendants. The orator appealed.

GhNERAU Assumpsit. Pleas, the general issue, payment, and plea in offset. Trial by jury at the December Term, 1905, Lamoille County, Munson, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. Under his counts in general assumpsit plaintiff sought to recover the amount due on a promissory note for the sum of $1,750, dated June 15, 1901, payable to the plaintiff or bearer, and signed by defendant.

Appeal in Chancery. Heard on the pleadings, master’s report and exceptions thereto, at the March Term, 1906, Washington County, Rowell, Chancellor. Decree, strictly pro forma, dismissing the bill with costs to' the defendant. The orator appealed. This case has been twice before in the Supreme Court. See 75 Vt. 243, and 76 Vt. 385. The orator became of age July 27, 1894.

Indictment, under V. S. 4921, for threatening to accuse another person of a crime, with intent to extort money. Plea, not guilty. Trial by jury at the June Term, 1906, Orange County, Tyler, J., presiding. Verdict, guilty; and judgment thereon. The respondent excepted. The indictment charged that the respondent threatened to accuse one J. H. T'arbox with having committed the crime of adultery with one Mary Jane Brasseaue, a married woman, and the daughter of the respondent.

CasR for negligence, brought by an administrator for benefit of the widow and next of kin, under V. S. 2451-2452. Plea, the general issue. Trial by jury at the April Term, 1906, Windham County, Tyler0 J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Case for personal injuries. Plea, the general issue. Trial by jury at the September Term, Franklin County, 1905, Tyler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The question to the witness Walsh, referred to in the opinion, was asked in his direct examination. The burden was on the plaintiff to show the absence of knowledge, actual or imputed, of the extraordinary risk which caused his injury. Pierce on Railroads, 382, 383; Tex. & Pac.

General Assumpsit on a certificate oí life insurance, brought under No-. 121, Acts 1896. Heard on demurrer to the declaration at the March Term, 1906, Orleans County, Watson, J., presiding. Demurrer overruled, pro forma, and declaration adjudged sufficient. The defendant appealed. The certificate in question recited that the‘“Catholic Order of Foresters hereby promises and binds itself to pay” $1,000 to- the beneficiaries therein named.

CasR for alienating the affections of the plaintiff’s wife by committing adultery with her. Plea, the general issue. Trial by jury at the June Term, 1905, Windsor County, Haselton, presiding. 'Verdict and judgment for the plaintiff. The defendant excepted. The defendant also, brought a petition for a new trial, under V. S. 1662, to the May Term, 1906, of the Supreme Court for the county of Windsor, on the ground of newly discovered evidence.

<p>Assumpsit — Reference After General Issue Pleaded — Subsequent Declaration in Offset — Whether Covered by Reference■ — ‘V. S. 1437, 1156.</p> <p>Where a case in assumpsit on promissory notes, after defendant bad pleaded tbe general issue only, was referred to be tried according to law, and at a subsequent term, pending a continuance by the referee after a partial hearing before him, defendant, by leave of court, filed a declaration in offset based upon a claim independent of plaintiff’s cause of action, and raising issues entitling the parties to a trial by jury, it was error to hold, against plaintiff’s objection, that those issues went to the referee under the general reference.</p>

<p>Towns — Bridges—Insufficiency —■Personal Injwñes — Notice to Selectmen — Construction—“Culvert or Bridge”— Trial by Jury — Neither Party Desiring to go to Jury— Effect — Contributory Negligence — Charge—V. S. 3490.</p> <p>In V. S. 3490, which gives an action against' a town for damage caused by reason of the insufficiency of any “bridge or culvert,” the word “or” does not co-ordinate “bridge” and “culvert” and make each term connote the same, but connects two words denoting distinct objects of the same class.</p> <p>Where neither party desires to go to the jury upon an issue of fact made by conflicting evidence in the course of a trial by jury, that issue is thereby submitted to the court, and its holding thereon is conclusive.</p> <p>In an action against a town for injury caused by reason of the alleged insufficiency of a bridge, plaintiff’s notice to the selectmen designated the bridge as the first bridge beyond a certain residence, and it appeared that the bridge on which the injury was received was of 15 feet span, 17 feet long, and covered with plank; that between it and said residence were two wooden culverts of less than 18 inches span, about 3 feet long, and covered with plank. Though each side gave evidence as to the material, size, and structure of the culverts, and as to the amount of water that flowed through them, there was not much conflict in that evidence, except as to the amount of water. Held, that it was a question of fact whether the bridge in question was the “first bridge” beyond said residence, as stated in the notice, or the “third bridge,” as claimed by defendant; and that, as neither party desired to go to the jury on that issue, the holding of the court that the notice correctly designated the bridge as the “first'bridge” beyond said residence was conclusive.</p> <p>A traveller has a right to act upon the assumption that the town has done its duty to maintain its highway bridges in good and sufficient repair.</p> <p>In an action against a town for injury caused by reason of the alleged insufficiency of a highway bridge, evidence considered, and held that plaintiff was not, as matter of law, guilty of contributory negligence.</p> <p>In an action against a town for injury to plaintiff by being thrown from his wagon in consequence of his horse breaking through an alleged insufficient plank in a bridge, defendant did not claim that plaintiff’s negligence contributed to the breaking of the plank, but only to his being thrown from his wagon. The court in its instructions to the jury referred to the breaking of the plank as an “accident,” without alluding to contributory negligence, but added, “Now further than that, consider the question whether the plaintiff was in the exercise of due care, that is, whether his failure to exercise due care, if you find that he did fail, contributed to the accident, the accident that resulted in his injury.” Held, that the court sufficiently charged that, if plaintiff’s negligence contributed to the happening of the particular injuries he received, he could not recover.</p>

Quo Warranto brought, under V. S'. Chap. 82, to the Supreme Court for Washington County at its October Term, 1905, and heard at the January Term, 1906, upon evidence taken and filed.

Habeas Corpus, brought to the Supreme Court for the County of Rutland at its January Term, 1907, and then heard.

<p>Criminal Ram — Statutory Offences — Receiving Stolen Property — Sufficiency of Indictment — V. S. 4974-</p> <p>Whether an indictment in the words of a statute creating the offence is sufficient, depends upon the statutory statement. If every fact necessary to constitute the offense is charged or necessarily implied by following the language of the statute, an indictment in the words of the statute is sufficient, otherwise not.</p> <p>The word “feloniously” when used in an indictment both characterizes the crime and charges an unlawful intent.</p> <p>Receiving stolen property, Knowing it to he stolen, was an offence at common law; and V. S. 4974 merely provides for the punishment of that offence, without enumerating the acts that constitute it. An indictment for that offence must, therefore, use the terms which technically charge it at common law.</p> <p>An indictment which charges that the respondent “did feloniously receive and have four head of cattle, of the value * * *, the goods and chattels of one George Marsh, then lately before feloniously stolen, taken and carried away by some evil disposed person,” the respondent “then and there well knowing the said cattle to have been feloniously stolen, taken and carried away, contrary to the form of the statute,” etc., is sufficient at common law, and would be sufficient for a statutory crime.</p>

Assumpsit for the collection of taxes, begun by trustee process, under V. S. 506. Plea, the general issue. Trial by court at the June Term, 1905, Windsor County Haselton, J., presiding. Judgment for the defendant. The plaintiff excepted. The court found as follows: “The question is as to the tax of 1898.

<p>Assumpsit — Improper Argument — Withdrawal and Instruction to Disregard — Effect—Charge—New Trial — Surprise — Newly Discovered Evidence.</p> <p>In assumpsit for cash paid for dinners that defendant did not dispute his obligation to furnish, but defended only on the ground that plaintiff had procured his dinners at places other than the restaurant -where defendant had arranged to furnish them, and the evidence tended to show that said arrangement was intended for plaintiff’s convenience, and not as a limitation upon his right to procure his dinners elsewhere, it was not error for the court to omit to instruct the jury that plaintiff had no right to get his dinners without authority from defendant.</p> <p>A certain statement made in argument under exception having been immediately withdrawn, and the jury thereupon instructed to disregard it, the error, if any, was thereby cured.</p> <p>A new trial should not he granted on the ground of surprise, except in a strong case, where the petitioner neglected seasonably to move for a continuance.</p> <p>The newly discovered evidence revealed by the affidavits attached to a petition for a new trial examined and held- not likely to produce a different result on another trial.</p>

Assumpsit for the expenses incurred in the support of a pauper. Heard on the report of a referee at the March Term, 1906, Washington County, Rowell, J., presiding. Judgment for the defendant to recover its costs. The plaintiff excepted. The opinion states the case. The pauper must actually reside on the annexed territory at the time the Act annexing it takes effect, in order to’ transfer the liability of his support with such territory.

Case for malpractice. Plea, the general issue. Trial by-jury at the October Term, 1905, Essex County, Powers, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Case for deceit. Pleas, the general issue, and a special plea of defendant’s discharge in bankruptcy. Heard on plaintiff’s demurrer to said special plea at the December Term, 1906, Orange County, Waterman, J. presiding. Demurrer sustained, and plea adjudged insufficient. The defendant excepted. Cause passed to the Supreme Court before trial on the merits. The opinion fully states the case.