Volume 80 — Vermont Reports

Case for negligence, Orleans County. Heard at Chambers in vacation after March Term, 1906, Watson, J., presiding, on defendants’ several demurrers to the declaration. Demurrers overruled, declaration adjudged sufficient. The defendants excepted. Cause passed to the Supreme Court before trial on the merits. The opinion fully states the case.

Appeal in Chancery, Orleans County. Heard at Chambers, July 19, 1906, on the pleadings and an agreed statement of facts, Watson, Chancellor.

Case for negligence. Plea, tbe general issue. Trial by jury at the March Term, 1906, Chittenden County, Miles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. In the circumstances disclosed by plaintiff’s cáse the motorman was not bound to anticipate such wrongful act of a third party, and from the moment that wrongful act began he did all in his power to prevent a collision. Davidson v. Denver Tram Co., 35 Pac.

Appeal in Chancery. -Heard on the pleadings, master’s report and exceptions thereto, at the June Term, 1903, Windsor County,- Tyler, Chancellor. ’ Exceptions overruled, and decree for the orator establishing the line between the orator and the land of Agatha Moore upon which defendant’s mill stands, at tne place reported by the special master, enjoining defendants from flooding the orator’s land, and for the orator to recover twenty-five dollars, damages to'the time of-the…

Appeal in Chancery, Chittenden County. Heard at Chambers, August 2, 1906, Miles, Chancellor, on the pleadings, master’s report and exceptions thereto. Decree dismissing the bill with costs to the defendants. The orator appealed. The opinion fully states the case. Defendants had the right to annex such conditions as they chose to the deposit of the deed in escrow. Mechanics Nat. Bank v. Jones, 76 App. Div. Rep. 535; Belle v. Foreman, 37 Ohio St. 139; Campbell v. Thomas, 24 Am.

Proceeding for Contempt. Chittenden County, September Term, 1906. Rowell, C. J., presiding. The respondent was adjudged guilty of contempt and Sued $3,000. Exceptions by respondent ; also petition for writ of certiorari, and petition for a writ of error. .

Debt on a contractor’s bond given in conformity to the Act of Congress of August 13, 1904. Heard on demurrer to defendant’s plea to the jurisdiction at the March Term, 1906, Chittenden County, Miles, J., presiding. Demurrer sustained. Plea adjudged insufficient. The defendant excepted. Cause passed to the Supreme Court before final judgment. The opinion states the material part of the plea. The real plaintiff is the beneficiary, a resident of New York.

Appeal in Chancery. Heard on demurrer to the bill at the August Term, 1905, G-rand Isle County, Tyler, J., presiding. Demurrer sustained, and bill adjudged insufficient for want of equity. The defendant appealed. The opinion fully states the case. See 79 Yt. 234. The bill fully sets fopth the facts necessary to warrant an application to a court of chancery for the appointment of a commission to determine the two confused boundaries therein described. Pom. Eq.

Appeal in Chancery, Addison County. Heard at Chambers, November 22, 19.05, Watson, Chancellor. Decree for the orators. The defendants appealed. The opinion fully states the case. To unreasonably obstruct a water course is a private nuisance, for which an injunction may be asked in equity. Koopman v. Blodgett, 70 Mich. -610, 14 Am. St. Bep. 527; Heilbron v. Fowler So. Co., 75 Cal. 426, 7 Am.

Petition for a writ of prohibition brought to the Supreme Court for Rutland County at its ^May Term, 1903, and then heard on petition and answer. Reargued at the May Term, 1905. At the March Term, 1902, of the Rutland County Court the petitionee obtained judgment, and a close jail certificate, against the petitioner in a suit for injuries sustained by her while undergoing surgical treatment at the hands of the petitioner.

Case for negligence. Pleas, the general issue, and eight special pleas in bar relying upon a release. Heard on demurrers to said eight special pleas, at the December Term, 1904, Caledonia .County, Tyler, J., presiding. Demurrers overruled, pro forma, and pleas adjudged sufficient. The plaintiff excepted. Cause passed to the Supreme Court before trial on the merits. The opinion states the case, and the substance of the special pleas.

Petition, under Y. S. 1667, to set aside a default judgment rendered by a justice of tbe peace. Trial by court at the March Term, 1906, Chittenden County, Miles, J., presiding. Judgment for the petitioner. The petitionee excepted. The opinion states the case. The defendant was constable of the city of Burlington, at the time he made the attachment and sale referred to.

Assumpsit on a policy of life insurance. Plea, the general issue with notice. Trial by jury at tbe March Term, 1906, Rut-land County, Miles, J., presiding. Verdict and judgment for tbe plaintiff. Tbe defendant excepted. This case has been once before in tbe Supreme Court, see 78 Vt. 473. Plaintiff could not impeach tbe assignment for illegality. Tbe law'will not afford relief to either party in pari causa turpitudims. Monatt v. Parker, 30 La.

Appeal in Chancery, Washington County. Heard at Chambers, July 31, 1905, on the pleadings, master’s report and exceptions thereto. Decree, pro forma, overruling the exceptions, and ordering that the defendant pay the orator the sum of seventy dollars and twenty-five cents, with costs. The orator appealed. The opinion states the case.

Book Account. Heard on the auditor’s report and exceptions thereto, at the June Term, 1906, Windsor County, Rowell, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case. An attorney cannot recover for services, which, by reason of his unfaithfulness, are of no benefit to his client. Bracy v. Carter, 12 A. & E. 373; Hill v. Feather stonbough, 7 Bing. 569; 1 Parsons on Contract. 123; Brodin v. Kingland, 4 Wats.

<p>Intoxication — Prosecution—Sentences—County Jail — V. S. 5206, 5210, No. 200, -Acts-1906.</p> <p>Since No. 200, Acts 1906, repealed all Acts and parts of Acts inconsistent therewith, and §8 requires that all imprisonments for being found intoxicated shall he in the county jail, that Act repealed so ‘ much of V. S. 5206, 5210, as requires imprisonment in the house of correction in cases of conviction for being found intoxicated.</p>

Covenant. Heard on general demurrer to the declaration, at the December Term, 1906, Windsor County, Taylor, J., presiding. Demurrer sustained, pro forma, and declaration adjudged insufficient. The plaintiff excepted. Cause passed to the Supreme Court before trial. 'The opinion sufficiently states the substance of the declaration. The eviction set forth in the declaration constitutes a breach of the 'covenants of seisin.

Appeal in Chancery, Addison County. Heard at Chambers, September 24, 1906, on demurrer to the bill. Decree, pro forma, that the demurrer be overruled,'the bill adjudged sufficient and taken as confessed, and decree for the orator according to the prayer of the bill. The defendant appealed. The situation is the same as if the oratrix had given a deed and taken a mortgage back to secure the agreement for her support, and foreclosure is the proper remedy. Moulton v. Ins.

Trespass Quare Clausum, Pleas, tbe general issue, and special pleas justifying under a deed and license from plaintiff’s cotenant. Heard on demurrers to said special pleas, at tbe December Term, 1906, Caledonia County, Powers, J., presiding. Demurrers overruled and tbe several pleas adjudged sufficient. Tbe plaintiff excepted. Cause passed to tbe Supreme Court before final judgment. Tbe opinion states tbe substance of tbe pleas.

Assumpsit for breach of promise to marry. Plea, the general issue, and notice. Trial by jury at the March Term, 1907, Washington County, Miles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. This case has been once before in the Supreme Court, see 78 Vt. 188. It-was error to exclude defendant’s evidence offered in rebuttal of plaintiff’s evidence of defendant’s declarations as to his financial condition.

Case lor negligence. Plea, the general issne. Trial by jury at the October Term, 1906, Essex County, Tyler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion fully states the ease. It was error to refuse to instruct the jury as to the meaning of proximate and remote cause. A person is responsible for only the natural and probable consequence of his acts, or such consequence as may be foreseen by a prudent man.

Case for negligence. Plea, the general issue. Trial by jury at the December Term, 1906, Orange County, Waterman, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The' opinion fully- states the case. It was error to admit the testimony of the witness Flint as to the appearance of the burnt district 14 months after the fire, as tending to show its origin. That was allowing the jury to' guess as to defendant’s liability.

Trespass for cutting timber. Plea, tbe general issue. Trial by court at the September Term, 1903, Windham County, Start, J., presiding. Judgment, pro forma, for the defendant. The plaintiff excepted only to the judgment. The opinion fully states the case. The power of the executors to sell was devised to them independently of their functions as executors, and a purchaser may deal with them as he would with any other vendor.

Church by William P. Benton, as executor of the last will and testament of Serena K. Church. Trial by court at the December Term, 1906, Windsor County, Taylor, J., presiding. Judgment for the claimant for the amount of the notes in question with interest thereon from the death of Whitcomb H. Church. The opinion gives the pleadings and fully states the case. This ease has been once before in the Supreme Court; see 78 Yt. 360.

A-ssumpsit to recover expenses incurred in the support of a pauper. Plea, the general issue. Trial by jury at the June Term, 1906, Addison County, Miles, J., presiding.

Motion to bring forward on tbe docket tbe case of Eleanor F. B. Nicholas v. Estate of Ccvira B. Nicholas, and to vacate tbe judgment rendered therein, for certain specified irregularities. Heard at tbe September term, 1906, Washington County, Powers, J., presiding. Motion denied as matter of law. Tbe claimant excepted. Tbe opinion fully states the case.

Information for misprision of felony. Heard on demurrer to the information at the October Term, 1906, Essex County, Tyler, J., presiding. Demurrer overruled, and information adjudged sufficient. The respondent excepted.

Petition for Divorce, on tbe grounds of adultery and intolerable severity. Tried at tbe September Term, 1906, Franklin County, Watson, J., presiding. Divorce granted on tbe ground of adultery. Tbe petitionee excepted to tbe judgment for that it was not warranted by tbe facts found by tbe court. The opinion sufficiently states tbe case.

court establishing an instrument as the last will and testament of Caroline W. Rogers. W. H. Dean, proponent; John L. Adams and James W. Adams, contestants. Trial by jury, at the June Term, 1906, Addison County, Miles, J., presiding. Verdict and judgment for the proponent. The contestants excepted. The contestants excepted to the failure of the court to comply with their eighth request for instructions, which was: ‘ ‘ George IT.

Action, under V. S. 1560, frequently called “justice ejectment,” to recover possession of a dwelling bouse. Plea, tbe general issue. Trial by jury at tbe June Term, 1906, Addison County, Miles, J., presiding. Verdict and judgment for the plaintiff. Tbe defendant excepted.

Case for injuries resulting from keeping a vicious horse. Plea, the general issue. Trial by jury at the September Term, 1906, Franklin County, Watson, J., presiding. At the close of all the evidence the court directed a verdict for defendant Lyman Hendrick. Verdict and judgment for the plaintiff against Walter B. Hendrick, who excepted. The opinion states the case.

Petition for a writ of prohibition, brought to the Supreme Court for Chittenden County at its May Term, 1907, and then heard on demurrer to the petition. The opinion states the case.

W. Reynolds by Henry A. Hatch. Declaration in case for personal injuries caused by the testator’s alleged negligence. Plea, the general issue. Trial by jury at the December Term, 1906, Lamoille County, Miles, J., presiding. At the close of plaintiff’s evidence, the court directed a verdict for the defendant for that there was no evidence tending to show that the plaintiff did not assume the risk by voluntarily encountering the danger after he comprehended it.

Case for malpractice in setting and treating a broken leg. Pleá, tbe general issue. Trial by jury at tbe September Term, 1905, Orleans County, Munson, J., presiding. Verdict and judgment for the plaintiff. Tbe defendant excepted. Tbe defendant discharged tbe case March 30, 1904. Tbe opinion sufficiently states tbe case.

Special Assumpsit on an accident insurance policy. Trial by jury at the March Term, 1904, Washington County, Stafford, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

General Assumpsit. Heard on motion to dismiss, at the March Term, 1907, Essex County, Taylor, J., presiding. Motion overruled. Defendant excepted.

Covenant. Pleas, non est factum, witb notice, and non fregit conventionem. Trial by jury at the December Term, 1904, Caledonia County, Tyler, J., presiding. Verdict and judgment for the defendant. Tbe' exceptions merely state that the pleas were full performance and non est factumwith notice, but do not refer to the pleas, nor make them a part of the exceptions. The plaintiff excepted.

<p>Game Laivs — Wild Deer on Enclosed Land in Closed Season-Landowner’s Property in Such -Deer — Eis Bight to Kill \ Dogs to Protect Such Deer '.</p> <p>The wild game of this State belongs to the inhabitants thereof in their collective and sovereign capacity, and not in their individual and private capacity, except so far as private ownership may be acquired therein under the constitutional provision that the inhabitants of the State “shall have liberty in seasonable times to hunt and fowl on lands they hold and on other lands not enclosed,” under proper regulations to be thereafter provided by the General Assembly.</p> <p>Since the statutory prohibition to hunt wild deer on his' enclosed lands in the closed season is a proper regulation of his constitutional “liberty” to hunt and fowl thereon, an inhabitant of this State has, during the closed season, no such property in a wild deer on his enclosed land, which is there being attacked and worried by another’s duly licensed, registered and collared dog, as entitles him to kill the dog, though that be necessary to save the deer’s life.</p>

Information against the owner of a dog for allowing him to run at large in violation of No. 130, Acts 1901. Heard on an agreed statement of facts at the March Term, 1907, Washington County, Miles, J., presiding. Judgment, strictly pro forma, that the respondent is guilty. The respondent excepted.

Case for negligence. Plea, the general issue. Trial by jury at the March Term, 1906, Washington-County, Rowell, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Replevin for goods taken by defendant by virtue of an attachment. Heard on an agreed statement at the March Term, 1907, Washington County, Miles, J., presiding. Judgment for the defendant to recover one cent damages and his costs, and for the return of the property. The plaintiff excepted.

Trespass for false imprisonment. Pleas, the general issue, with notice of justification under two. warrants issued by a justice of the peace, on complaint of the state’s attorney, charging criminal offences. Trial by jury at the March Term, 1906, Washington County, Rowell, J., presiding. No general verdict - was submitted.

Case for negligence. Plea, the general issue. Trial by jury at the March Term, 1907, Franklin County, Haselton, 3., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Action on No. 117, Acts 1906, the Weekly Payment Act, to recover the penalty for one failure to pay as therein required. Heard on an agreed statement of facts, August 20, 1907, in the City Court of the City of Rutland, Farnsworth, Judge. Judgment for the plaintiff to recover the penalty of fifty dollars and costs. The defendant excepted.

<p>Criminal Lazo — Illegal Sales of Intoxicating Liquor — Prosecution — Sufficiency of Specifications — Discretion—Review.</p> <p>The sufficiency of specifications filed by tbe State in a prosecution for illegally selling intoxicating liquor is within the discretion of the trial court, the exercise of which is not reviewable.</p> <p>A fictitious or suppositional question as to the admissibility of evidence will not be considered.</p>

Trespass for assault and battery. Pleas, tbe general- issue, and a special plea justifying tbe assault in defence of defendant’s possession of a car that be was sweeping and cleaning. Trial by jury at tbe December Term, 1906, Lamoille County, Miles, J., presiding. Verdict and judgment for tbe plaintiff. Tbe defendant excepted. Tbe opinion fully states tbe case.

Case for negligence in failing to construct a suitable farm ■crossing. Heard on an agreed statement of facts at the September Term, 1904, Rutland County, Munson, J., presiding. Judgment for the plaintiff ,for nominal damages only. The plaintiff excepted. The opinion fully states the ease. While the tenant is in possession, he may maintain, to the •same extent as an owner in possession, trespass on the case for negligent injuries to his possessory right. 18 Am. & Eng. Enc.

Appeal in Chancery. Heard on pleadings, master’s report and exceptions thereto, at the April Term, 1907,Windham County, Taylor, Chancellor. Decree for the petitioner. Defendants appealed.

Trover for a quantity of wood and lumber. Plea, the general issue. Trial by jury at the March Term, 1907, Washington County, Miles, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion sufficiently states the case. It was error to exclude plaintiff’s offer that, previous to the settlement he had mortgaged the wood in question; with the privilege in the mortgagee of selling the wood and applying the proceeds on the mortgage indebtedness.

Information for attempting to poison Sanford Hicks and his wife. Plea, not guilty. Trial by jury at the December Term, 1904, Bennington County, Poioers, J., presiding. Verdict, guilty, and judgment thereon. The respondent excepted. See State v. Sargood, 77 Vt. 80.

Indictment for perjury. Plea, not guilty. Trial by jury at the December Term, 1904, Bennington County, Powers, J., presiding. Yerdict, guilty; judgment and sentence thereon. The respondent excepted.

Information for wrongfully attempting to procure the miscarriage of a pregnant woman, who died in consequence thereof. Plea, not guilty. Trial by jury at the April Term, 1907, Wind-ham County, Taylor, J., presiding. Verdict, guilty; and judgment thereon. The respondent excepted. The opinion states the case.

Appeal in Chancery, Orange County. Heard at Chambers, September 26, 1906, on the pleadings and master’s report, Tyler, Chancellor. Decree, that the bill be dismissed with costs to the defendants. The orator appealed. The opinion fully states the case. The treasurer should account for. all taxes collected by the collector, and show abatements or some other disposition of the delinquent taxes. State v. Powell, 40 La. Ann. 234; Police Jury v. Broohshier, 31 La.

Special Term a.t Rutland, November, 1907. Appeal in Chancery. Heard on demurrer to the bill at the March Term, 1907, Rutland County, Waterman, J., presiding. Demurrer overruled; bill taken as confessed; and decree, pro forma, for the orator, according to the prayer of the bill, for possession of the premises in question, and for an accounting. The defendant appealed.

Information in fourteen counts --charging violations of No. 182, Acts 1906, prohibiting the sale'of diseased animals and meat. Heard on demurrer to the several counts at the March Term, 1907, Chittenden County; Hall, J., presiding. Demurrers overruled, pro. forma, and information adjudged sufficient. The respondent excepted. The opinion sufficiently states the nature of the information and the scope of the demurrers.

In an action for personal injuries, where defendant conceded the right of recovery, but denied the claim for damages, both in character and extent, in manner and form alleged, such an agreement or “special issue” was not thereby made as precluded recovery of damages which, though not specially set out in the declaration, were based on testimony received without objection; but the issue was that made by the pleadings, and the defendant by letting in the irrelevant testimony…

Appeal by Sayles Nichols and Gardner S. Wainwright, as executors of the will of Edward W. Peck, surviving husband of Harriet C. Peck, from the decision of the probate court, on petition of William PI. Clark, one of the legatees of the will of Harriet C. Peck, holding inoperative and void the written waiver of the provisions of the will of said Harriet C. Peek, filed in said court by her said surviving husband..

Appeal by J. E. Cushman, as Commissioner of State Taxes, from an order and decree of the probate court as to the amount of collateral inheritance tax for which the distributees of the estate of Alice Howard are liable. George C. Brockway, administrator. Heard on an agreed statement of facts at the June Term, 1907, Windsor County, Waterman, J., presiding.

Case for fraudulently discharging a mortgage.- Plea, the general issue. Trial by jury at the March Term, 1907, Chittenden County, Hall, J., presiding. Verdict and judgment for ' the plaintiff. The defendant excepted.' The opinion fully states the ease. The defendant’s motion for a verdict should have been granted. The declaration relied on fraud, and none was proved. Colson v. Bean, 78 Vt. 283.

Bastardy Proceeding. Plea, not guilty. Trial by jury, at the December Term, 1906, Windsor County, Taylor, J., presiding. Verdict, guilty; and judgment tbereon. . The defendant excepted.

Assumpsit for breach of a marriage promise. Heard on special demurrer to plaintiff’s replication to defendant’s sixth special plea, at the September Term, 1907, Windham County, Haselton, J., presiding. Demurrer overruled and replication adjudged sufficient. The defendant excepted. The opinion states the substance of the pleadings in question.

Action on V. S. 2359 against a person named as executor in a will to recover the penalty prescribed for not seasonably presenting it to the probate court. Heard on demurrer to replication to plea of the Statute of Limitations, at the June Term, 1905, Windsor County, Rowell, J., presiding. Demurrer sustained, and replication adjudged insufficient. The plaintiff excepted. The opinion states the ease and the substance of the replication.

Information for selling and furnishing intoxicating liquor without authority. Heard on an agreed statement of the facts, at the March Term, 1907, Franklin County, Haselton, J., presiding. Judgment, guilty. The respondent excepted. The opinion fully states the case. A master is not liable for the criminal acts of his servant, unless done with the master’s knowledge or by his instructions. 1 Bish. New Or.

General Assumpsit in the common money counts. Plea, the general issue. Trial by court -at the March Term, 1907, Rutland County, Waterman, J.,. presiding. Judgment for the-plaintiffs. The defendant excepted.

General Assumpsit on an accident insurance policy. Plea, the general issue. Trial by court at the September Term, 1907, Rutland County, Hall, J., presiding. Judgment for the plaintiff to recover the larger sum mentioned in the policy. The defendant excepted. The opinion states the case. A person not under the influence of any intoxicant or narcotic so as to prevent him from being fairly able to take care of himself is not within the conditions of the policy.

General Assumpsit. Pleas, tbe general issue and offset. Trial by jury at the April Term, 1907, Windham County, Taylor, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion sufficiently states the case.

Appeal in Chancery, Windsor County. Heard at Chambers, September 3, 1906, on the pleadings and master’s report, Miles, Chancellor. Decree dismissing the bill with costs to the defendants. The oratrix appealed. The opinion states the case.

Case for negligence. 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.

Appeal in Chancery. Heard at the September Term, 1906, Rutland County, Miles, Chancellor, on the pleadings and master’s report. Decree, pro forma, dismissing the bill with costs to the defendant. ✓ The orators appealed.

Q. Shumway of a claim presented by The H. C. Jaquith Co. Declaration, trover for a mare seized and sold on a tax warrant against another. Plea, the general issue. Trial by jury at the April Term, 1907, Windham County, Taylor, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The .only issue was as to the ownership of the mare and her value.