Volume 82 — Vermont Reports

General Assumpsit. Plea, the general issue. Trial by court at the March Term, 1908, Washington County, Hall, J., presiding. Judgment for defendant. The plaintiff excepted. The opinion states the case. As soon as the defendant failed to pay the interest as it fell due, the plaintiff, without paying the interest himself, had the right to bring an action against the defendants for its recovery'.

Appeal by the defendant from proceedings by the city of Burlington to acquire by the right of eminent domain certain lands and premises for the construction of a public wharf. Heard on defendant’s motion to dismiss the proceedings, at the March Term, 1908, Chittenden County, Haselton, J., presiding. Motion overruled, to which the defendant excepted.

Appeal in Chancery, Rutland County. Heard at Chambers on February 28, 1908, on pleadings,_ master’s report and exceptions thereto. Hall, Chancellor. Decree for the orator. The defendant appealed. This is a bill in chancery to set aside a deed of land from the intestate to her son, the defendant, and the transfer to him of a savings bank deposit book, on the ground of mental incapacity and undue influence.

Case for negligence. Plea, the general issue. Trial by jury at the March Term, 1908, Rutland County, Taylor, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. At the close of all the evidence, the defendant moved for a verdict on the grounds stated in the opinion. Motion overruled, to which the defendant excepted.

Trespass quaere clausum. Plea, the general issue. Trial by jury at the June Term, 1908, Orange County, Watermaox, J., presiding. Verdict, as to defendant Trask, guilty, and judgment thereon. That defendant excepted. The opinion states the case. The charge of the court on the subject of appurtenances is framed on the theory that the subject-matter of an appurtenance must be actually connected with the premises. That is error. Missouri Pac.

Information for cruelty to animals. Heard on motion to dismiss at the March T'erm, 1908, Franklin County, Miles, J., presiding. Motion denied, to which the respondent excepted. The opinion states the case.

General Assumpsit. Pleas, tbe general issue, payment, accord and satisfaction, and declaration in offset. Trial by jury at the December Term, 1907, Windsor County, Powers, J., presiding. Yerdiet and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Case for negligence. Plea, the general issue. Trial by jury at the October Term, 1907, Essex County, Miles, J., presiding. Verdict and judgment for the plaintiff.' The defendant excepted. This case has been once before in the Supreme Court. See 80 Vt. 196. Plaintiff was guilty of contributory negligence in descending between the cars in the circumstances.

General Assumpsit. Plea, the general issue. Trial by-jury at the March Term, 1908, Washington County, Hall, J., presiding. At the close of all the evidence each party moved that a verdict be directed in its favor. The defendant’s motion was overruled, to which he excepted. Verdict ordered for the plaintiff, and judgment thereon, to which the defendant excepted. The opinion states the case. The defendant’s motion for a verdict should have been granted.

Appeal in Chancery. Heard on the pleadings, master’s report and exceptions thereto, at the March Term, 1904, Washington County, Rowell, Chancellor. Decree overruling the exceptions and dismissing the bill with costs. The orator appeals. The opinion states the case.

Petition for a new trial based on surprise and newly discovered evidence, brought to the Supreme Court for Chittenden County at its January Term, 1909, and then heard on motion to dismiss.

Special Assumpsit for not delivering goods bargained and sold. Heard on general and special demurrers to tbe declaration at tbe March Term, 1908, Franklin County, Miles, J., presiding. Demurrers overruled, and declaration adjudged sufficient. Tbe defendant excepted. All tbe essential elements of a valid contract must appear in or be disclosed by tbe written memorandum, signed by tbe party to be charged, or tbe memorandum is not sufficient.

Case for false warranty. Plea, tbe general issue. Trial by jury at tbe June Term, 1907, Caledonia County, Miles, J., presiding. Yerdict and judgment for tbe plaintiff. Tbe defendant excepted. During tbe trial, before tbe plaintiff rested, and again at tbe close of all tbe evidence, tbe defendant moved to dismiss tbe case because tbe action is founded on contract, and tbe writ was issued as a capias and tbe defendant’s body arrested tbereon.

Case for malpractice in diagnosing and treating an injury to plaintiff’s eye. Each defendant severally pleaded the general issue. Trial by jury at the March Term, 1906, Orleans County, Watson, J., presiding. Before the plaintiff finished his evidence, and at his request, judgment was rendered for defendant, the Mary Fletcher Hospital, to recover its costs, and the trial proceeded against defendant Twitehell alone.

General Assumpsit. Pleas, the general issue, payment, accord and satisfaction, and a plea in offset. Heard on referee’s report, and plaintiff’s exceptions thereto, at the March Term, 1908, Washington County, Hall, J., presiding. Exceptions overruled. The item in defendant’s specification in offset of $2,800 for advancement disallowed; and judgment for plaintiff for $1,797.23, with interest thereon from August 6, 1896, and costs. The defendant excepted.

Trover for a pair of stags. Plea, the general issue. Trial by jury at the April Term, 1908, Windham County, Powers, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case.

<p>Appeal from a decision of the probate court granting tbe petition of William C. Greenlaw, as administrator of tbe estate of bis deceased wife, and beir at law of tbe estate of Elizabeth A. Hayes, to vacate tbe report of tbe commissioners on tbe last named estate. J. H. Hayes, administrator of said estate, appellant. Heard on motion to dismiss tbe petition at tbe June Term, 1908, Orange County, Waterman, J., presiding. Motion overruled, pro forma. Tbe appellant excepted.</p>

Covenant on a contractor’s bond given in conformity to tbe Act of Cong'ress of August 13, 1894. Formal pleadings waived by each party, and all necessary pleadings treated as filed. Trial by jury at tbe September Term, 1907, Chittenden County, Powers, J., presiding. At tbe close of all tbe evidence tbe defendant moved that a verdict be directed in its favor for that coal is not “material” within tbe meaning of either tbe bond or of tbe Federal statute.

Covenant on a contractor’s bond given in conformity to the Act of Congress of August 13, 1894. Formal pleadings waived, all necessary pleadings treated as filed, and the declaration treated as covering everything for which a recovery could be had in this action. Trial by Jury at the September Term, 19Q7, Chittenden County, Powers, J., presiding. Verdict ordered for the plaintiff for $2,193.11 damages, and costs; and judgment thereon. The defendant excepted.

Trespass for assault and battery. Pleas, the general issue, and special plea in justification. Trial by jury at the October Term, 1907, Essex County, Miles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Under the declaration and replication, plaintiff was not entitled to show that he was a passenger nor to show the purchase nor the taking up of a ticket.

Information for violation of No. 124, Acts 1906. Pleas, .not guilty and a special plea relying on a contract between the respondent and the New England Telephone and Telegraph Company made before the passage of said act. Trial by jury waived, and trial by court at the March Term, 1907, Orleans County, Powers, J., presiding. The respondent was found guilty, and judgment entered accordingly. The respondent excepted.

Appeal in Chancery. Heard on the pleadings, master’s report and exceptions thereto, at the September term, 1906, Washington County, Powers, Chancellor. Decree, pro forma, overruling the exceptions and subrogating the oratrix to the rights of the mortgagee. The defendants appealed. This case has been once before in the Supreme Court; see 75 Yt. 178.

Appeal in Chancery. Heard on the pleadings and evidence taken before tbe Chancellor, at tbe April Term, 1909, Wind-ham County, Haselton, Chancellor. Decree that tbe bill be dismissed with costs. Tbe orator appealed. Tbe opinion states tbe case. Tbe claim was sufficiently presented. A claim as defined by Bouvier in bis Law Dictionary, is tbe assertion of a liability to tbe party making it to do some service or pay a sum of money.

Trover for sheep. Plea, the general issue. Trial by jury at the June Term, 1908, Windsor County, Taylor, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

<p>Contracts — Construction—Limitation of Actions — Accrual of Action — Demand—Performance of Contract.</p> <p>Plaintiff loaned money to her father, which he was. to invest in a place for her and her children, plaintiff to receive interest and have the money returned to her when she called for it, her children to live and board there, plaintiff paying him for their board; and she and the children did live and board there for some time. Held,, that the agreement was that plaintiff should allow her father to invest the money in the place in return for a home and board for herself and children in part payment thereof; plaintiff to receive the money back, with interest not otherwise paid, when she called for it; and that the Statute of Limitations would not begin to run against an action for the money until plaintiff demanded its return.</p>

Trespass and Trover for a horse. Heard on plaintiff’s demurrer to defendants’ joint plea in abatement, at the October Term, 1908, Essex County, Hall, J., presiding. Demurrer sustained and plea adjudged insufficient. The defendant excepted. The opinion states the ease. The writ in this case was committed to the officer who served it on defendant Hetu, and the subsequent service thereof on defendant Bemis by another officer was void.

General Assumpsit to recover expenditures for the support of a pauper. Plea, the general issue. Trial by court in the Montpelier city court, Harvey, J. Judgment for the plaintiff. The defendant excepted. Words in a statute ought not to have a retrospective operation unless they are so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the Legislature cannot be otherwise satisfied.

Appeal to tbe Supreme Court for tbe county of Windsor from tbe final decree of tbe Board of Railroad Commissioners dismissing tbe petition of tbe Central Vermont Railway praying for tbe abolition of an alleged public highway grade crossing over tbe petitioner’s tracks at White River Junction. Heard at January Term, 1909, on tbe petitioner’s further petition praying that tbe case be remanded, with mandate that it be consolidated with a prior petition pending before said board.

Appear in Chancery. Heard on demurrer to the bill for want of equity at the September Term, 1908, Windham County, Powers, Chancellor. Demurrer overruled; bill adjudged sufficient and taken as confessed; and decree for the orator. The defendant appealed. Fraud vitiates everything. The bill alleges that the orator failed to obtain justice because of defendant’s fraud. That gives equity jurisdiction to grant the relief demanded.

Information for breach of the peace. Plea, not guilty. Trial by jury at the September Term, 1908, Washington County, Taylor, J., presiding. Verdict, guilty; and judgment thereon. The respondent excepted.

Martha Mason, one of the testatrix’s children, proponent, and John Mason, another child, contestant. Trial by jury at the December Term, 1907, Caledonia County, Waterman, J., presiding. Verdict and judgment for the proponent. The contestant excepted. The opinion states the case. It was error to admit the testimony as to the interview with the testatrix. It was conceded that at the time of that interview she was sane.

Appeal in Chancery. Heard on the pleadings and findings of fact made by the chancellor, at the April Term, 1907, Windham County, Taylor, Chancellor. Decree dismissing the bill with costs to the defendant. The orator appealed.

Appeal in Chancery. Heard on the orator’s petition for leave to file an amended bill, at the June Term, 1908, Bennington County, Miles, Chancellor. Decree, as matter of law, that the ■court of chancery is without jurisdiction to grant the petition, and that final decree be entered dismissing the bill with costs pursuant to the mandate from the Supreme Court. See 72 Yt. 185. The orator appealed.

Covenant for breach of warranty against all lawful claims. Heard on the report of a referee at the December Term, Windsor County, 1907, Powers, J., presiding.

Assumpsit. Plea, the general issue. Trial by jury at tbe June Term, 1908, Windsor County, Taylor, J., presiding. Verdict and judgment for the plaintiff. Tbe defendant excepted. Tbe opinion states tbe case. It is not necessary to state all tbe parts of a contract unless the omitted parts are essential. Tbe gravamen is that a certain act which tbe defendant engaged to do has not been done. Allen v. Lyman, 27 Vt. 20; GooUdge v. Ins.

Trover for a pair of oxen. Plea, the general issue. Trial by jury at the April Term, 1908, Windham County, Powers, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. It was error to exclude defendant’s offered evidence of the agreement made after the execution of the lease, as that agreement tended to show a license to sell the oxen in question. Flanders y. Fay, 40 Vt. 316; Sherwin et al. v. But. & Bur.

Petition to tbe Supreme Court for Essex County at its October Term, 1908, for a trial on the ground of the misconduct of a juror. Heard at the Special Term at St. Johnsbury, April, 1909, on testimony taken and filed. It is good cause for a new trial that one of the jurors had, before trial, expressed his opinion on the merits in favor of the successful party. Doming v. Hurlbut, 2 D. Chip. 45; French v. Smith, 4 Yt. 343; State v. Clark, 42 Yt. 629.

Case for negligence. ■ Plea, tbe general issue. Trial by .jury at the April Term, 1908, Windham County, Powers, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Defendant was entitled to a charge in accordance with its fourth and eighth requests. Plaintiff and the trackmen, in the circumstances of this case, were fellow servants.

Appeal by William A. Harris and others from a decree ■of probate court making final distribution of the estate of Joel B. Harris, deceased, testate. Trial by court at tbe March Term, 1907, Rutland County, Powers, J., presiding. Judgment pro forma, on the facts found, affirming the decree of the probate -court, excepting the correction of a manifest error in computation. The appellants excepted. The opinion states the ease.

Assumpsit, under P. S. 1534, to enforce the liability of members of an -unincorporated society on a judgment against it. Pleá, tbe general issue. Trial by jury at the December Term, 1907, Windsor County, Powers, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. See Benedict v. Union Agricultural Society, 74 Yt. 91.

Appeal in Chancery, Essex County. At Chambers on January 25, 1909, and after the mandate from the Supreme Court in this ease came down, final decree was entered therein. The oratrices appealed. The opinion states the case. See 81 Yt. 259.

Case for negligence. Plea, the general issue. Trial by jury at the September Term, 1907, Washington County, Waterman, J., presiding. Verdict and judgment for the plaintiff. The defendants excepted. The opinion states the case. There was a material variance between the declaration and proof as to the place of the accident.

Assumpsit for tuition of defendant’s children. Plea, the general issue. Trial by court on an agreed statement of facts at the March Term, 1908, Orleans County, Waterman, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case.

Appeal in Chancery. Heard on the pleadings, finding of facts made by the chancellor, and motion to set aside the same, at the June Term, 1908, Bennington County, Miles, Chancellor. Motion overruled and decree for the orator to the effect that the deed in question is void, but constitutes a cloud on the orator’s title which is decreed removed, and the defendant perpetually enjoined from making any claim under the deed. The defendant appealed.

Ejectment. Plea, the general issue. Trial by jury at the December Term, 1907, Windsor County, Powers, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The presumption that the relation of landlord and tenant existed between Brown and Bennett arises from the payment and acceptance of rent, and exclusive possession by Bennett.

Information for an assault with intent to rape. Plea, not guilty. Trial by jury at the December Term, 1908, Addison County, Stanton, J.,-presiding. Verdict, guilty of a simple assault, and judgment thereon. The respondent excepted. The opinion states the case. The presumption of innocence in a criminal case is in the nature of evidence, to be weighed with any other evidence in the case making in favor of the respondent; and it was error to refuse so to instruct the jury.

Appeal in Chancery. Heard on pleadings and master’s report at tbe June T'erm, 1908, Caledonia County, Hall, Chancellor. Decree for the orator. The defendant appealed. The contract mentioned in the opinion was in writing, duly witnessed and acknowledged, but was not recorded.

Case for deceit. Plea, tbe general issue. Trial by jury at tbe April Term, 1908, Windham County, Powers, J., presiding. 17 Yerdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. The statement of defendant that plaintiff could get the money on the note at any time was the statement of a mere opinion, and must have been so understood.

Petition to the Supreme Court for Orange County at its May Term, 1909, by the plaintiff in the above entitled cause, to bring it forward and to strike off the judgment therein rendered in his favor in April, 1892, as reported in 64 Vt. 41. The opinion states the case.

Assumpsit to recover for the support of a pauper. Plea, the general issue. Trial by court on an agreed statement of facts at the June Term, 1908, Caledonia County, Sail, J., presiding. Judgment, pro forma, for the plaintiff. The defendant excepted. The opinion states the case. The notice in this case is insufficient in that it does not inform the defendant town of the condition of the pauper.

Case for negligence. Plea, tbe general issue. Trial by jury at tbe September Term, 1907, Washington County, Waterman, J., presiding. Verdict directed for tbe defendant, and judgment tbereon. Tbe plaintiff excepted. Tbe opinion states tbe case.

Case for negligence. Plea, tbe general issue. Trial by jury at tbe Mareb Term, 1906, Chittenden County, Miles, J., presiding. At tbe close of all the evidence the defendant moved that a verdict be directed in its favor, on the ground that the evidence did not tend to show negligence on defendant’s part, but showed that the deceased was guilty of contributory negligence as matter of law. Motion overruled, to which the defendant excepted.

' Appeal in Chancery. Heard on demurrers to the bill at tbe June Term, 1908, Caledonia County, Alfred A. Hall, Chancellor. Demurrers overruled, pro forma, and bill adjudged sufficient and taken as confessed. Decree, pro forma, in accordance with the prayer of the bill. The defendants appealed. The opinion states the case.

Proceedings based on a grand juror’s complaint to a justice of the peace, for the seizure and condemnation of intoxicating liquor alleged to have been unlawfully kept for sale; Merle S. Pike, claimant. Edward Morrissey and Thomas Morrissey, in whose keeping the liquor was found, were apprehended and brought before the court. Trial by court at the December Term, 1907, Bennington County, Haselton, J., presiding.

Case for slander. Plea, tbe general issue. Trial by jury at tbe December Term, 1908, Orange County, Miles, J., presiding. Yerdict and judgment for tbe plaintiff. The defendant excepted.

Appeal in Chancery. Heard on tbe pleadings, master’s report and exceptions thereto, at the March Term, 1908, Washington County, Hall, Chancellor, Decree, pro forma, for the orator according to the prayer of its bill. The defendant appealed. The opinion states the case. See next case. If the city council could by resolution grant any rights, it could only be for a public purpose that was expressly stated in the permit. State v. Murphy, 134 Mo. 548, 56 Am.

Appeal in Chancery. Heard on the pleadings, master’s report and exceptions thereto, at the March Term, 1908, Washington County, Hall, Chancellor. Decree, pro forma, for the orator according to the prayer of its bill. The opinion states the ease. See the preceding case.

<p>Information for unlawfully furnishing intoxicating liquor. Plea, not guilty. Trial by jury at the March Term, 1909, Washington County, Stanton, J., presiding. Verdict, guilty; and judgment thereon. The respondent excepted. The opinion states the case.</p> <p>It was manifest error to exclude the evidence in question on the ground that it might criminate the witness since he did not claim his privilege in that regard. 4 Wig. Ev. §2270; Foster v. Pierce, 11 Cush. 437; Com. v. Pratt, 126 Mass. 462; Com. v. Trider, 143 Mass. 180; State v. Foster, 23 N. H. 348; Chamberlin v. Wilson, 12 Vt. 491; Ex parte Senior Jr., 32 L. R. A. 133. Moreover, the witness had waived his right to claim his privilege, by testifying on the subject in direct examination. Chamberlin v. Wilson, 12 Vt. 491; State v. Duncan, 78 Vt. 364; In re Consolidated Rendering Co., 80 Vt. 55.</p>

Appeal to the Supreme Court for tbe County of Orleans from an order of the Railroad Commissioners directing the elimination of a farm crossing at grade by the substitution of an underpass. The opinion states the case.

General Assumpsit. Pleas, the general issue, payment, Statute of Limitations, and offset. Trial by court at the December Term, 1908, Lamoille County, Waterman, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case.

Trespass Quare Clausum. Plea, the general issue with notice. Trial by court at the December Term, 1908, Orange County, Miles, J., presiding. Judgment for the plaintiffs. The defendant excepted. The opinion states the case.

Trespass Qua re Clausum. Plea, the general issue with notice. Trial by jury at the April Term, 1908, Windham County, Powers, J., presiding. Verdict directed for defendant, and judgment thereon. The plaintiff excepted. Plaintiff acquired title to the premises described in the declaration by a decree of foreclosure of two mortgages that were duly assigned to him by Catherine Sears, the legal owner thereof.

Book Account for the value of legal services. Heard on auditor’s report, and exceptions thereto, at the June Term, 1908, Caledonia County, Hall, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case. The citation should have been returned to the magistrate who issued it. Ellis v. Cleveland, 54 Vt. 437; Gibson v. Holmes, 78 Vt. 110; Wright v. Templeton, 80 Vt. 358.

Appeal in Chancery. Heard on the pleadings, and master’s report at the March Term, 1904, Franklin County, Start, Chancellor. Decree, strictly pro forma, ' dismissing the bill. The orators appealed. The opinion states the case. The following is the map referred to in the opinion. Boundaries may be established by any testimony tending to fix and identify them.

General Assumpsit for goods sold and delivered. Pleas, tbe general issue, payment, and offset. Trial by jury at the September Term, 1908, ‘Windham County, Miles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the ease.

Information for stealing an unindorsed bank check for $875. Plea, not guilty. Trial by jury at the September Term, 1908, Chittenden County, Waterman, J., presiding. Verdict, guilty; and that the value of the property was $880. Judgment on verdict. The respondent excepted. The opinion states the case.

<p>Habeas Corpus, brought to the Supreme Court for Lamoille County at its May Term, 1909, and then heard on the pleadings. The opinion states the ease.</p> <p>The statute under which the relator was committed is void because in violation of the requirements of due process of law. That statute makes no provision for notice of the proceedings to the alleged insane person. The statute must expressly provide for such notice. Stearns v. Barre, 73 Yt. 281; Johnson v. Joliet etc. R. R., 23 111. 202; Stuart v. Palmer, 74 N. Y. 183; Rees v. Watertown, 19 Wall. 107; Louisville R. R. Go. v. Schmidt, 77 U. S. 230.</p> <p>In such matters the probate court is one of limited jurisdiction, and, therefore, all jurisdictional facts must appear on the face of the record. Roberts’ Digest, p. 564, pi. 2; Holden v. Scanlin, 30 Yt. 177; Clapp v. Beardsley, 1 Aik. 168; Shumway v. Shumway, 2 Yt. 339; WaVbridge v. Hall, 3 Yt. 114; Nye v. Kellam, 18 Yt. 594; Hutchins v. Johnson, 12 Goma. 376, 30 Am. Dee. 622; Chase v. Hathaway, 14 Mass. 222; Wait v. Maxwell, 5 Pick. 217, 16 Am. Dec. 392.</p> <p>The record shows that no notice was given either by physicians or probate court of hearing. This is a fatal defect. Shumway v. Shumway, 2 Yt. 339; Allis v. Morton, 4 Gray 63, 16 Am. Dec. 392; Hutchins v. Johnson, 12 Conn. 376, 30 Am. Dec. 622; McCurry v. Hooper-, 12 Ala. 823, 46 Am. Dec. 280; 16 Rhode Island 537, 27 Am. St. Rep. 759; McGee v. Hays, 127 Cal. 336, 78 Am. St. Rep. 57, 23 L. R. A. 737; note in 23 L. R. A. 737.</p>

Information presented by tbe Attorney General to tbe Supreme Court for Orleans County at its May Term, 1909, asking that the respondent be cited to show cause why he should not be punished for contempt of said Court. Heard on demurrer to the information. Demurrer overruled, and the respondent adjudged guilty of contempt of court, and fined.

<p>Case for negligence. Pleas, the general issue and a special plea relying on a release under seal from the plaintiff to the defendant. Heard on demurrer to the replication at the December Term, 1908, Caledonia County, Taylor, J., presiding. Demurrer overruled, and replication adjudged sufficient. The defendant excepted. The opinion states the case.</p> <p>The replication is a departure from the declaration and at variance with it. This defect in pleading is reached by a general demurrer. 1 Chitty, 643-648 (13th Am. Ed.) ; Gould’s PI. 422-426 (4th Ed. 1861) ; Joslyn v. Taylor, 33 Vt. 470; Watson v. Joslyn, 29 Vt. 455; Bradley v. Johnson, 45 N. J. L. 487; Ban-over Fire Ins. Co. v. Brown, 74 Md. 64 (39 Am. St. Rep. 386); Moore v. Stevens, 42 N. IT. 404; Benjamin v. DeGroot, 1 Den. (N. Y.) 151; Sibley v. Brown, 4 Pick. (Mass.) 137; Wilson v. Johnson, 29 Atl. 419; Dawes v. Winship et al., 16 Mass. 291; Stearns v. Patterson, 14 Johns. (N. Y.) 132; Keay v. Goodwin, 16 Mass. 1; Andrus v. Waring et al., 20 Johns. (N. Y.) 153.</p> <p>The negligence complained of gave rise to only one cause of action. Damages resulting from one and the same cause of action must all be assessed and recovered in a single action. 1 Enc. of PI. and Pr. 159; Morey v. King Co., 51 Vt. 383; Baird v. V. S., 96 U. S. 430; Trash v. Railroad Co., 2 Allen 331; Hermann on Estoppel, §77; Seeor v. Sturgis, 16 N. Y. 548; Folsom v. Clemence, 119 Mass. 473; Warren v. Cummings, 6 Cush. 103; Marble V. Keyes, 9 Gray 221; Bennett v. Bood, 1 Allen 47; Knowlton v. Ry. Co., 147 Mass. 606; Bendernagle v. Cocks, 19 Wend. 207; Smith v. Jones, 15 Johns. 229; Cleavelands v. Grand Trunk Ry. Co., 42 Vt. 449; Borne Mutual Ins. Co. v. Oregon &c. Nav. Co., 20 Ore. 569, 23 Am. St. Rep. 151; Fireman’s Fund Ins. Co. v. Oregon c6c. Nav. Co., 67 L. R. A. 164; Nonuich &c. Ins. Co. v. Standard Oil Co., 59 Fed. 984.</p> <p>The release under seal is a bar to this suit, as effectual as a judgment. 24 Am. & Eng. Enc. of Law, 315; Chicago etc. Ry. Co. v. Wilcox, 116 Fed. 193; Perkins v. Fourmquet et ux. 14 How. 314; Phalen v. Neiu York, 119 N. Y. 86; Simson v. Brown, 68 N. Y. 355; Dufur v. Boston & Maine R. R. Co., 75 Vt. 165.</p> <p>The insurer takes nothing by subrogation but the rights of the insured, and that only by virtue of subrogation, and his interest is limited to the amount actually paid. 27 Am. & Eng. Enc. of Law, 261 b; The Livingstone, 130 Fed. 746; St. Louis etc. Ry. Co. v. Ins. Co., 139 U. S. 223; Memphis etc. Railway Co. v. Dow, 120 U. S. 287; Wager v. Ins. Co., 150 U. S. 99; Leavitt v. C. P. Ry. Co., 90 Me. 153; Mobile etc. Co. v. Jurey, 111 U. S. 584.</p> <p>The insurance company, which the replication reveals as the real and sole party in interest in this suit, has no right in its own name or in the name of the assured to recover more than its proportion of the loss caused by the tortious act of this defendant. Continental Ins. Co. v. Loud & Sons Co., 93 Mich. 139, 32 Am. St. Rep. 494; Swarthout v. Chicago, etc. By. Co., 49 Wis. 625, 6 N. W. 314; Wheeler Savings Bank v. Tracey, 141 Mo. 252, 64 Am. St. Rep. 505; Farrington & Smith v. Paine, 15 Johns. 432; Branneburg V. Railroad Co., 13 Ind. 103, 74 Am. Dee. 250.</p> <p>The insurer upon payment to the insured of the amount of its policies, became subrogated to the extent of said payments, to the remedy of the insured against the defendant railroad company for the loss. Harding v. Townshend, 43 Yt. 536; Hart v. Western B. B. Corp., 13 Mete. 99, 46 Am. Dee. 719; Clark v. Wilson, 103 Mass. 219; Monmouth Mut. Ins. Co. v. Hutchinson, 21 N. J. Eq. 107; Conn. Fire Ins. Co. v. Erie By. Co., 73 N. Y. 399; Lumberman’s Mut. Ins. Go. v. Kansas City etc. B. R. Co., 149 Mo. 165; Brighthope By. Co. v. Rogers, 76 Ya. 443; Garrison v. Memphis Ins. Co., 19 How. 312; Mason v. Sainsbury, 3 Doug. 61. This suit was properly brought in the name of the insured. The right of action was vested in the latter before payment by the insurance company. All eases holding that suit may be maintained in the name of the insurance company are decided under those reformed codes of procedure which permit any action to be brought in name of the real party in interest. Rockingham Mut. Fire Ins. Co. v. Bosher, 39 Me. 253; Conn. Mut. Life Ins. Co. v. N. Y. & N. H. B. B. Co., 25 Conn. 265; London Assurance v. Sainsbury, 3 Doug. 245; Bailivay Co. v. Manchester Mills, 88 Tenn. 653; Hall v. Railroad Co., 13 Wall. 367; St. Louis By. Co. v. Commercial Union Ins. Co., 139 H. S. 223.</p> <p>■ The release executed by the nominal plaintiff is no bar to this action. By accepting the insurance money the plaintiff assigned to the insurance company to the extent of such payment its right of recovery against the defendant. It is in the nature of an equitable assignment which authorizes the assignee to sue in the name of the assignor, for its own benefit, and this a court of law will protect aud will not allow the assignor to defeat it by a release. It is alleged in the replications that the defendant had notice and knowledge of the assignment before the execution of the pretended release and before the time of payment mentioned in the pleas. The defendant is a party to the fraud. Payne v. Rogers, 1 Doug. 407; Phillips v. Glagett, 11 Mees, and Welsb. 84; Timan v. Leland, 6 Hill 239; Home Ins. Co. v. Western Trans. Co., 33 How. Pr. 102; G. B. & Q. R. R. v. Emmons, 42 111. App. 138; Hartford Fire Ins. Co. v. Wabash Ry. Co., 74 Mo. App. 106.</p> <p>The question of departure is not before the court. Jenness v. Simpson, 81 Yt. 109. The replication is not a departure from the declaration. Carpenter v. McClure, 38 Yt. 375; Conklin v. Botsford, 36 Conn. 105; Prince v. Brunatte, 1 Bing. N. C. 435; Leg v. Evans, 6 M. & W. 36; McFadden v. Schroeder, 4 Ind. App. 305. A test of departure in a replication is whether evidence of facts alleged in the replication could be received under the allegations of the declaration. 6 Ene. of PI. & Pr. 462.</p>

<p>Interpleader — Bight to Maintain — Principal and Agent — Bailor and Bailee.</p> <p>Where an agent is sued by bis principal or a bailee by bis bailor, and thereupon a third person asserts a title adverse to that of the principal or the bailor, a bill of interpleader cannot in general be maintained against the conflicting claimants; but where the claim of the third person is under a title derived from that of the principal or the bailor, and acknowledges that title, a bill of inter-pleader is maintainable.</p> <p>Where a daughter shortly after the death of her father deposited money with the oratrix, and later demanded its return claiming it as a gift from her father, and the administrator of the father’s estate also demanded the money as the property of the estate, the oratrix could not maintain a bill of interpleader against the daughter and administrator, for the oratrix was a mere agent or bailee, and the claim of the administrator must be treated as adverse and paramount to the daughter’s title.</p>

Covenant. Heard on demurrers to the declaration at the September Term, Franklin County, Powers, J., presiding. Demurrers overruled and declaration adjudged sufficient. The defendants excepted. The opinion states the case. In no case can the executor and heir be sued jointly. 1 Chit. PI. 61. The heirs and devisees of the covenantor are not liable for the covenantor’s covenants where the personal estate is sufficient to pay the debt.

Ejectment. Plea, the general issue. Trial by court at the March Term, 1908, Rutland County, Taylor, J., presiding. Judgment lor the plaintiff. The defendant excepted. The opinion states the case. Defendant’s evidence offered to show that the deed was obtained by fraud and undue influence, and by duress, was improperly excluded. Smith v. Ward, 1 Am. Dec. 80, and note; Schrader v. Decker, 49 Am. Dec. 516; Heeton v. Glasgow, 21 Am. Rep. 46; Strauch v. Hathaway, 40 Am.

Case for negligence. Pleas, the general issue and a special plea relying on a release. Trial by jury at the October Term, 1908, Essex County, Hall, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The facts shown by the evidence on the trial of the issue of fraud sufficiently appear in the opinion.

Trespass quare clausum. Plea, the general issue. Trial by court at the June Term, 1907, Addison County, Taylor, J., presiding. Judgment for the plaintiff. The defendant excepted. The defendant also brought a petition for a new trial, on the ground of newly discovered evidence, to the Supreme Court of Addison County at its February Term, 1909, which petition was heard with the exceptions. The opinion states the case.

Trover for the conversion of logs. Plea, the general issue. Trial by jury at the September Term, 1908, Orleans County, Hall, J., presiding.

Case for deceit in the sale of a farm. Plea, the general issue. Trial by jury at tbe September Term, 1908, Chittenden County, Waterman, J., presiding. Verdict and judgment tor tbe defendant. Tbe plaintiffs excepted. The opinion states tbe case. It was error to exclude plaintiffs’ offered evidence of defendant’s offer to resell tbe property at one-half tbe former price.

Petition for a new trial, brought to the Supreme Court for Windham County at its May Term, 1909, and then heard on the pleadings. The opinion states the case. See 80 Yt. 530.

<p>Trial — Motions for Directed Verdict — Waiving Bight to Jury.</p> <p>A party does not waive his right to go to the jury by moving for a directed verdict at the close of all the evidence, and by not expressly asking to go to the jury on the motion being denied.</p> <p>Plaintiff having made a prima facie case, defendants were not entitled to a directed verdict at the close of all the evidence, as such a direction would require the court to weigh the evidence,</p> <p>There being some evidence to sustain defendants’ defence of discharge from liability on the note in suit by extension to their principal of the time of payment, verdict could not be directed for*’ plaintiff.</p> <p>Assumpsit. Plea, the general issue. Trial by jury at the June Term, 1908, Orange County. At the close of all the evidence plaintiff moved for a directed verdict. Motion overruled, pro forma, and verdict directed for defendants, and judgment thereon. The plaintiff excepted. The opinion states the case.</p> <p>By moving for a verdict without requesting to go to the jury when the motion was denied, plaintiff waived his right to go to the jury. Sire v. Bumbald, 14 N. Y. Supp. 925, 7 N. Y. Süpp. 734; Grien v. Shote, 7 N. Y. Supp. 69. And plaintiff is now estopped to complain of the verdict ordered for defendants, if there is any evidence tending to sustain their defence. Bobinson v. Larrabee, 58 Vt. 652; Davis v. Town of St. Albans, 42 Vt. 585; Sugar Trust Case, 5 L. R. A. 386; Hall v. Stevens, 5 L. R. A. 802; Dillon v. Cocker aft, 90 N. Y. 649; Ormer v. Darchy, 82 N. Y. 443; Breese v. McCann, 56 Yt. 498; Brooks v. Thatcher, 52 Yt. 559; 1 Randolph Com. Paper, §66.</p>

Trover for the conversion of $300 in money. Plea, the general issue. Trial by jury at the September Term, 1908, Windsor County, Miles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. If counsel persevere in arguing upon facts not before the jury or appealing to prejudice foreign to the case in evidence exception may be taken by the other side.

<p>Assumpsit by an indorsee against the makers of a promissory note. Plea, the general issue with notice. Trial by jury at the December Term, 1908, Orange County, Miles, J., presiding. Verdict directed for the defendants, and judgment thereon. The plaintiff excepted. The opinion states the case.</p> <p>This is the first ease in this State to raise the question as-to the effect on negotiability of an agreement in a promissory note to pay counsel fees. The conflict of authority on this-question is very marked. See note to Bowie v. Hall, 1 L. It. A. 547.</p> <p>The stipulation for “counsel fees if collected by an attorney” makes the note non-negotiable. Harden v. Olsen, 14 Fed-705; Kendall v. Parker, 103 Cal. 319, 42 Am. St. Rep. 117; Chase-V. Whitmore, 68 Cal. 545; Garretson v. Purdy, 3 Dak. 178; Fertilizing Co. v. Newman, 60 Md. 584; Altman v. Bittershafer,. 68 Mich, 267, 13 Am. St. Rep. 341; Altman v. Fowler, 70 Mich-57 ; Brewing Co. v. McKittrick, 86 Mich. 191; Jones v. Badatz,. 27 Minn. 240; Trenton Bank v. Gay, 63 Mo. 33; Bank v. Bynum,. 84 N. Car. 24, 37 Am. Rep. 604; Decorah Nat. Bank v. Laughlin,. 4 N. Dak. 391; Woods v. North, 84 Pa. St. 407, 24 Am. Rep. 201;. Johnstone. Speer, 92 Pa. St. 227, 37 Am. Rep. 675; Carroll Co~ Sav. Bank v. Strother, 28 Car. 504; Stillwater Bank v. Larsen,. 60 Wis. 206; Witherspoon v. Musselman, 14 Bush. 214, 29 Am... Rep. 404; State v. Taylor, 10 Ohio 378; Dow v. Updike, 11 Neb. 97; Merchants Bank v. Sevier, 14 Fed. 662; Boozer v. Anderson,. 42 Ark. 167; Bixey v. Pearre, 89 Ya. 113; Shelton v. Gill, 11 Ohio 378.</p>

General Assumpsit. Plea, the general issue with notice relying on the Statute of Limitations. Heard on the report of a referee, and exceptions thereto, at the March Term, 1909, Franklin County, Miles, J., presiding. Judgment for defendant. The plaintiff excepted. The opinion states the case.

Assumpsit on a promissory note by an indorsee against the maker. Plea, the general issue. Trial by court at the March Term, 1907, Washington County, Miles, J., presiding. Judgment for the defendant. The plaintiff excepted. The opinion states the case. The defence of failure of consideration cannot prevail against a tona fide indorsee for value who took the note while current, 4 Am. & Eng.

Case for negligence. Plea, the general issue. Trial by jury at the March Term, 1908, Essex County, Powers, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The plaintiff seeks to recover for injuries received by reason of the alleged negligence of the defendant while in its employ in its paper mill, at about two o’clock in the morning of February 15, 1906.

Appeal in Chancery. Heard on master’s supplemental report, and exceptions thereto, at the September Term, 1905, Washington County, Powers, Chancellor. Decree strictly pro forma, overruling the exceptions,, and perpetually restraining the defendants from maintaining a dam across the stream in question so as either to obstruct the natural flow of water, or to pollute the same. The defendants appealed.

Petition1 for a new trial, brought to the Supreme Court for Orange County at its October Term, 1909, and then heard on the affidavits in support thereof.

Case for damages caused by alleged negligent delay of two shipments of live stock over defendant’s railroad between Bellows Falls and Union Market, near Boston, Mass. Plea, the general issue. Trial by jury at the June Term, 1908, Addison County, Poiuers, J., presiding. Verdict for defendant as to the shipment of November 19, 1906, and for plaintiff as to the shipment of May 13, 1907, and judgment thereon.

General Assumpsit. Plea, the general issue. Trial by court at the March Term, 1909, Franklin County, Miles, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion sufficiently states the case.

Petition for a writ of quo ivarranto, brought to the Supreme Court for Franklin County at its October Term, 1909, and then heard on the pleadings and testimony taken and filed. The opinion states the case. See next case. There is no usurpation of an office or of a franchise involved. A liquor license is not a franchise and the holder is not an officer.

Petition for a writ of quo tuarranto, brought to the Supreme Court for Windham County at its October Term, 1909, and then heard on pleadings and testimony taken and filed. See the preceding ease.

Appeal In Chancery. Heard on the pleadings and facts found by the chancellor at the March Term, 1909, Chittenden County, Waterman, Chancellor. Decree for the defendant. The orator appealed.

Replevin. Plea, the general issue. Trial by court at the December Term, 1908, Addison County, Butler, J., presiding. Judgment for the defendant. The plaintiff: excepted. The opinion states the case. A woman may acquire full title to personal property by gift from her husband. Fletcher v. Wakefield, 75 Yt. 257; Ross et ux. V. Draper, 55 Yt.. 404.

Assumpsit on an alleged promise that a horse sold by defendant to plaintiff was capable of doing certain work. Plea, the general issue. Trial by jury at the June Term, 1909, Windsor County, Hall, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Information for incest. Plea, not guilty. Trial by jury at the June Term, 1909, Windsor County, Hall, J., presiding. Verdict, guilty; and judgment thereon. It is a fair inference from the letter in question that the respondent was seeking to induce his son to swear falsely to secure acquittal in this case, and evidence of a fabricated defence is always admissible. State v. Ward, 61 Yt. 153; State v. Manning, 74 Yt. 449; Rice Orim. Ev., 219, 220; State v. Williams, 27 Yt. 724.