Volume 84 — Vermont Reports

Ejectment. Plea, the general issue. Trial by jury at the June Term, 1909, Caledonia County, Miles, J., presiding. It appearing that defendant Howard before suit brought had parted with -all title and possession of the demanded premises, he had judgment for his costs. Verdict ordered for defendant Kent, and judgment thereon. The plaintiff excepted. The opinion fully states the case.

Appeal in Chancery. Heard on the pleadings and finding of facts made by the Chancellor, at the December Term, 1909,. Lamoille County, Hall, Chancellor. Decree dissolving the temporary injunction and dismissing the bill. The orator appealed. The opinion states the case.

<p>Process — Service—Return—Conclusiveness—Capacity of Officer— Evidence — Pleading — Issues — Review — Findings — Conclusiveness.</p> <p>The return on a writ is not conclusive, even between the parties, as to the capacity in which the officer served the writ.</p> <p>Parties are confined strictly to the matters put in issue by their pleadings. A finding supported by proper evidence will not be disturbed.</p> <p>Evidence that an officer who served a writ signed his return thereon as deputy sheriff sustains a finding that he did not serve, nor intend to serve, the writ as constable.</p>

Case for Negligence. Heard on general demurrer to the amended declaration at the December Term, 1909, Bennington County, Butler, J., presiding. Demurrer overruled, and declaration adjudged sufficient. The defendant excepted. The opinion states the case. This case had been once in the Supreme Court, see 81 Vt. 346. The declaration is insufficient.

Assumpsit for labor performed. Plea, the general issue. Trial by jury at the June Term, 1908, Orange County, Waterman J.', presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states as much of the case as the record shows.

Information for keeping intoxicating liquors with intent to sell without authority. Plea, not guilty. Trial by jury at the June Term, 1909, Miles, J., presiding. Verdict, guilty,: and judgment thereon. The respondent excepted. The opinion states the ease. Unless the beer found on respondent’s premises at the time of the search and seizure, and the beer referred to in the Ballantine account were intoxicating, evidence in respect thereof was admissible.

General Assumpsit to recover taxes paid under protest. Plea, the general issue. Trial by court on an agreed statement of the facts, at the June Term, 1910, Orange County, Stanton, J., presiding. Judgment pro forma, for the plaintiff. The defendant excepted. The necessity of a proper verification by the listers of the abstract of individual lists of taxpayers when that is made up under the option given by P. S. 565 is the same as when made in the ordinary form.

Appeal in Chancery. Heard on the pleadings and facts found by the Chancellor, at the June Term, 1909, Lamoille County, Stanton, Chancellor. Decree reforming the written contract in question and perpetually enjoining the prosecution of certain suits at law. The defendants appealed. The opinion states the case.

Trespass de bonis. Plea, the general issue and a special plea justifying under a tax bill and warrant based on a designated quadrennial appraisal. Heard on special demurrer to the special plea, at the June Term, 1910, Windsor County, Taylor, J., presiding. Demurrer overruled, pro forma, and plea adjudged sufficient. The plaintiff excepted. The opinion states the case. The plea is bad.

Trover for a clapboard mill, consisting of a clapboard saw, with lathe and crane attachments, a dressing machine for planing clapboards, and a butting saw. Plea, the general issue. Trial by court at the March Term, 1910, Franklin County, Taylor, J., presiding. Judgment for the defendant. The plaintiffs excepted. The opinion states the case.

Trespass for assault and battery. Plea, the general issue with notice. Trial by jury at the December Term, 1909, Addison County, Taylor J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion fully states the case. Although, as held in Patch Mfg.

Appeal in Chancery. Heard at the March Term, 1907, Washington County, on demurrer to the bill, Miles, Chancell- or Demurrer overruled, bill adjudged sufficient and taken as confessed, and decree for the orators. The defendants appealed. The bill alleges that the oratrix Hattie M. Gordon borrowed from the orator John W. Gordon the money wherewith to pay the bank’s decree, and assigned to him her interest therein.

General Assumpsit. Two cases. The plea in each case-was the general issue. Joint trial by court at the March Term, 1910, Rutland County, Hall, J., Presiding. Judgment in each case for Shaw, and Kennedy excepted to each judgment. The opinion fully states the case.

General Assumpsit. Heard on a commissioner’s report-as to the liability of the trustee, and exceptions thereto, at the March Term, 1910, Rutland County, Hall, J., presiding. Judgment against the principal defendant and the trustee. The trustee excepted. The opinion states the case.

Assumpsit, based on P. S. 1534, against the surviving member of an unincorporated association. Plea, the general issue. Trial by court at the June Term, 1909, Windsor County, Hall, J., presiding. Judgment for the plaintiff to recover the unpaid balance of his judgment. The defendant excepted. The Union Agricultural Society was formed for the purpose of promoting agricultural interests and holding an annual fair at Tunbridge, Vermont.

Appeal of Hiram L. Sparrow, as executor of the last will and testament of Enoch H. Vincent, from a decree of the probate court distributing the testator’s estate; the estates of Jane K. Somerville and Ella D. Collins, Appellees. Heard on appellees’ motion to dismiss the appeal, at the March Term, 1910, Washington County, Butler, J., presiding. Motion to dismiss overruled. Hearing on an agreed statement of facts. Judgment affirming the decree of the probate court.

General Assumpsit. Pleas, the general issue, accord and satisfaction, and declaration in off-set. Trial by jury at the March Term, 1910, Washington County, Butler, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted.

Appeal in Chancery. Addison County. Heard at Chambers on June 9, 1910, on the pleadings, master’s report, and defendant’s exceptions thereto, Taylor, Chancellor. Decree for the orators “in accordance with the prayer of the bill”. The defendant appealed. The opinion states the case.

Complaint for breach of the peace. Plea, not' guilty by ■each respondent. Joint trial by jury at the April Term, 1910, Essex County, Waterman, J., presiding. Verdict not guilty as to respondent Jordan, and guilty as to respondent Clary; and judgment and sentence of respondent Clary thereon. Respondent Clary excepted. The opinion fully states the case.

<p>Intoxicating Liquors — Illegal Transportation — Evidence—Sufficiency.</p> <p>In a prosecution under P. S. 5206 for illegally transporting intoxicating liquor, evidence that, on the day on which respondent transported intoxicating liquor from another state to his home town in this State, which was taken from him by officers before he reached his home, a person who boarded at the boarding house kept by respondent’s wife, and where respondent lived, was arrested for illegally selling intoxicating liquor, and on the next day was convicted thereof, with nothing more to connect respondent and the boarder, had no tendency to establish respondent’s guilt.</p> <p>A conviction under P. S. 5206 for illegally transporting intoxicating liquor is not warranted by evidence merely that respondent had bought of a licensed dealer out of this State, and in a suit case brought to his home town in this State, twelve pints of whiskey and two of beer, and was accompanied by his son who had the same quantity of whiskey.</p>

Appeal in Chancery. Heard on the pleadings, master’s report and exceptions thereto by Etta M. Fenn, at the March Term, 1910, Rutland County, Hall, Chancellor. Exceptions overruled, and decree for the petitioner. Etta M. Fenn appealed. The mortgaged premises were the property of the wife, and she signed both the mortgage and the note secured thereby, the note being for her husband’s debt.

Appeal in Chancery, Windsor County. Heard at Chambers-on August 30, 1910, on the pleadings and master’s report, Taylor, Chancellor. Decree, pro forma, dismissing the bill with costs; to the defendants. The orators appealed. The opinion states-the case. If the orators have the right to compel defendant to supply them with water, mandamus is the only proper remedy.

Case for debauching the plaintiff’s wife and alienating her affections. Plea, the general issue with notice thereunder. Trial by jury at the June Term, 1909, Caledonia County, Miles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. Defendant’s ninth, tenth, thirteenth, fifteenth, and sixteenth requests to charge were as follows: 9.

Trespass guare clausum, with a count in trespass de bonis and a count in trover. Heard on plaintiff’s motion to amend his declaration by striking out the last two counts, at the September Term, 1910, Washington County, Hall, J., presiding. Motion granted, and judgment rendered for the plaintiff, to which the defendant excepted. The amendment was properly granted, regardless of whether the several counts are for the same cause of action.

General Assumpsit. Plea, the general issue. Trial by jury at March Term, 1910, Chittenden County, Stanton, J., presiding. At the close of all the evidence, the defendant moved for a directed verdict in his favor. Motion overruled. Verdict for plaintiff, and judgment thereon. The defendant excepted.. The opinion states the case. The admission of the memorandum books as independent evidence was error.

Information for kidnapping a child under the age of sixteen years, in violation of P. S. 5721. Plea, not guilty. Trial by jury at the June Term, 1909, Windsor County, Hall, J., presiding. Verdict, guilty, and judgment thereon. The respondent excepted. The opinion states the case.

Assumpsit on two promissory notes. No pleas were filed, ■and plaintiff had judgment at the March Term, 1910, Washington County, Butler, J. presiding. At the same term, on assessment of damages by the clerk, plaintiff presented two promissory notes signed by defendants, one for $750, dated June 14, 1908, and the other for $277. 89, dated October 14, 1908, both of which are renewals of notes for the same sums.

Assumpsit for the collection of electric light rents, begun by trustee process under P. S. 644 as for the collection of taxes. Plea, the general issue. Trial by jury at the December Term, 1909, Caledonia County, Stanton, J., presiding. Verdict ordered for the defendant, and judgment thereon. The plaintiff excepted. The opinion states the case.

Special Assumpsit. Plea, the general issue. Trial by court on an agreed statement of facts, at the March Term, 1910, Rutland County, Hall, J., presiding. Judgment, pro forma, for the plaintiff. The defendant excepted. The opinion fully states the case. There has been no actual or legal assessment of the tax sought to be collected in this suit, and for that reason alone, the defendant is not bohnd by the stipulation. 27 Am. & Eng. Enc. (2d Ed.) 660; Cooley’s Const.

Assumpsit for money paid under protest for taxes. Plea, the general issue. Trial by court at the October Term, 1910, Chittenden County, Stanton, J., presiding. Judgment for the defendant. The plaintiff excepted. The taxes paid defendant under protest were levied on plaintiff’s Masonic Temple in the city of Burlington for the years 1905, 1906, and 1907.

Case for negligence in setting fires. Heard on the pleadings,, referees’ report and defendant’s exceptions thereto, at the December Term, 1909, Caledonia County, Stanton, J., Presiding. Exceptions overruled, and judgment for the plaintiff for the damages found by the report, and costs. The defendant excepted. The opinion states the case. If this action is maintainable, it should have been brought by the mortgagee. Adams v. St. Johnsbury & L. C. II.

Information charging the illegal sale of intoxicating liquors. Plea, not guilty. Trial by jury waived, and trial by court, on an agreed statement of facts, at the September Term, 1909, Chittenden County, Powers, J., presiding. The respondent adjudged guilty and fined. The respondent excepted.. The opinion states the case.

Danyew presented against the estate of Juliana D. Powers. Declaration, general assumpsit. Pleas, the general issue, and the Statute of Limitations. Trial by jury at the March Term, 1910, Rutland County, Hall, J., presiding. Verdict and judgment for the plaintiff. The defendant ■excepted. The opinion states the case.

Hall; Martha M. Hall, appellant. Heard at the September Term, 1908, Windham County, Miles J., presiding. Judgment affirming the decree of the probate court. The appellant excepted, the opinion states the case. The force of the videlicet ,is not to restrict the estate devised by the preceding words. Stukely v. Butler, Hobart, 171-A; 28 Am. & Eng. Enc.

<p>Wills — Construction—Videlicet.</p> <p>Appeal from decree of the probate court distributing the estate of George W. Hall; George W. Hall appellant. Heard at the September Term, 1908, Windham County, Miles, J., presiding. Judgment affirming the decree of the probate court. The appellant excepted.</p>

Case for negligently setting fires. Plea, the general issue. Trial by jury at the March Term, 1909, Orleans County, Miles, J., presiding. Verdict and judgment for the plaintiff. The ■defendant excepted. The opinion states the case.

General Assumpsit. Plea, the general issue. Trial by jury at the June Term, 1910, Orange County, Stanton, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Defendant’s answer that he did not call the witness a liar was collateral matter which it was error to allow plaintiff to contradict by the testimony of the witness.

Trespass on the freehold. Plea, the general issue with notice. Trial by court at the September Term, 1907, Rutland County, Hall, J., presiding. Judgment for defendants. Plaintiff excepted. The opinion states the case.

Appeal in Chancery. Heard on the pleadings and the chancellor’s findings of fact, at the September Term, 1909, Franklin County, Butler, Chancellor. Decree dismissing the bill with costs to defendants. The orator appealed. The opinion states the case. The facts and circumstances found and reported by the chancellor are such as the law regards with suspicion, and raise the presumption of fraud and undue influence.

Trial by jury at the April Term, 1910, Windham County, Miles, J., presiding-Verdict that defendant is so capable, and judgment thereon-The plaintiff excepted. The opinion states the case. A lay witness may not give his opinion where to do so makes it necessary that he apply a rule of law; and that is what he is asked to do when required to state whether defendant is mentally capable of caring for himself and his property.

General Assumpsit for intoxicating liquors sold and delivered. Plea, the general issue. Trial by court at the March Term, 1910, Rutland County, Hall, J., presiding. Judgment for the plaintiff. The defendant excepted. McCloy is dead,, and defendant is sued as surviving partner. The opinion slates-• the case. Plaintiff had no license to sell intoxicating liquors in this-State, and its sales are therefore contraband, and no recovery can be had therefor.

Assumpsit in four counts. Heard at the June Term, 1910, Lamoille County, Butler, J., presiding, on the defendant’s general demurrer to the first three counts in the declaration, and on the plaintiff’s general demurrer to the defendant’s plea to the fourth count.

Case for alienating the affections of plaintiff’s husband. Plea, the general issue. Trial by jury at the April Term, 1910, Windham County, Miles, J., presiding. Verdict and judgment for the plaintiff. The defendants excepted. The defendants are father and mother of plaintiff’s husband. Plaintiff claimed that she was forced to leave her home and husband because of his cruel treatment of her induced by defendants, who had alienated her husband’s affections.

<p>Divorce — Intolerable Severity — Requisites—Injury to Health— Judicial Notice — Presumptions from Court’s Findings— When Indulged.</p> <p>It is not so inevitable that a husband’s knowledge of his wife’s infidelity will render his home life intolerable, and cause him mental suffering sufficient to injure his health, that the court will take judicial notice that it will.</p> <p>It is only in support of the judgment that this Court will presume'that the trial court made from the facts certified up inferences not expressed therein.</p> <p>In a husband’s suit for a divorce for intolerable severity, from the finding that the husband’s knowledge of his wife’s infidelity caused him great mortification, in consequence whereof he was deprived of his rest, and could not attend to his work in the usual manner, this Court cannot say that injury to his health is to be apprehended; it appearing that he lived with her for years after his knowledge of her misconduct, and for months after learning the full extent thereof, and it not appearing that he was unwilling to continue to live with her when she finally left him.</p>

Trespass for mutilating the tails of plaintiff’s horses. Plea, the general issue. Trial by jury at the March Term, 1910, Orleans County, Waterman, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion sufficiently states the case.

Attempted Appeal to the Supreme Court for the County of Lamoille, by a landowner, from a final order, of the Public Service Commission eliminating grade crossings in the town of Hyde Park. Heard on motion to dismiss. The opinion states the case. This case has been once before in the Supreme Court, see 83 Vt. 562.

Case for negligence. Plea, the general issue. Trial by jury at the March Term, 1910, Orleans County, Waterman, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. That the passenger was injured without fault on his part raises no presumption of negligence on the part of the carrier and does not place on the latter the burden of proving that the injury was not caused by its negligence. Railroad Co. v. Buchelew, 3 Tex.

General Assumpsit on a life insurance policy. Plea, the general issue. Trial by court at the September Term, 1910, Chittenden County, Waterman, J., presiding. It was held that W. Clark Bishop by his execution of the release hereinafter mentioned, discharged his rights under the policy, and judgment was entered for the other two plaintiffs for $13,333.33. The defendant excepted.

Heard on an agreed statement of facts at the March Term, 1910, Rutland County, Hall, J., presiding. Judgment, pro forma, for the plaintiff. The defendant excepted. The opinion sufficiently states the case. Money expended in the support of a pauper cannot be recovered of the pauper or his estate without a special contract for re-payment. Deer-Isle v. Eaton, 12 Mass. 327; City of Albany v. McNamara, 117 N. Y. 168.

Case for negligence. Heard on a separate general demurrer to each of the three counts of the declaration, at the December Term, 1909, Bennington County, Butler, J., presiding. Demurrers sustained and the declaration adjudged insufficient. The opinion fully states the case.

Information for bathing in Berlin Pond in violation of an order of the State Board of Health. Trial by jury waived, and trial by court on an agreed statement of facts, at the September Term, 1910, Washington County, Hall J., presiding. The respondent, pro forma, adjudged guilty and fined. The respondent excepted. The opinion states the case.

Trespass quare clausum. Plea, the general issue with notice of license. Trial by jury at the September Term, 1910, Washington County, Hall, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. The abuse of a license in fact will not make an officer a trespasser ab initio. Stone v. Knapp, 29 Vt. 501; Six Carpenters’ Case, 8 Coke 146.

Assumpsit. Pleas, the general issue and special pleas in bar. Trial by jury at the September Term, 1909, Orleans County, Taylor, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. See 162 Fed. 272. When a suit is removed from a state court to a Federal court, a part of the subject-matter thereof cannot be split, dropped, or reserved, for another suit. 18 Ency.

Information for depositing sawdust, shavings, and mill refuse in the waters of the Lamoille river, in violation of No. 211, Acts 1908. Heard on demurrer to the information, at the June Term, 1910, Lamoille County, Butler, J., presiding. Demurrer overruled, pro forma, and the information adjudged sufficient. The respondent excepted. The opinion states the case.

Case for negligence. Plea, the general issue. Trial by jury at the June Term, 1911, Addison County, Miles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

<p>Intoxicating Liquors — License—Vote Erroneously Counted and Declared — Remedy—Duty of Assistant Judges to Canvas Votes — To Appoint License Commissioners — Mandamus.</p> <p>The duties oí the assistant judges of the county in respect of the legal sale of intoxicating liquors are only those expressly or impliedly given by P. S. 5109, 5111, 5114, and neither expressly nor impliedly do those sections make it the duty of those judges in any circumstances to count ballots cast in any town on the question of granting licenses therein for the sale of intoxicating liquors.</p> <p>Since the law does not make it the duty of the assistant judges of the county in any circumstances to count the ballots cast in any town on the question of granting licenses for the sale of intoxicating liquors therein, mandamus will not lie to compel them to count such ballots and to appoint license commissioners for a city in which the vote, as counted , and declared at the meeting when taken, was against such licensing by a majority of one, regardless of whether the declared count was erroneous.</p>

<p>Justices of the Peace — Appeal—Loss from Accident or Mistake— Relief — Evidence—Prepayment of Justice’s Fee — Waiver—■ Necessity of Showing Defence.</p> <p>Facts found by the trial court, on petition to be relieved from loss, by fraud, accident, or mistake, of an appeal from the judgment of a justice of the peace, considered, and held to sustain the finding that plaintiff’s attorney understood, and had a right to understand, that the justice had waived prepayment of the twenty-five cents allowed him by statute for the appeal.</p> <p>Since the prepayment to a justice of the peace of the twenty-five cents allowed him for an appeal from his judgment is not by the statute made essential to the validity of the appeal, and that fee is ■ a perquisite of the justice in which no one else has any interest, he may waive its prepayment.</p> <p>One petitioning to be relieved from the loss, by fraud, accident, or mistake of an appeal from the judgment of a justice of the peace, and who has complied with all the requirements of law for such an appeal, except prepayment of the justice’s fee therefor, which was waived, need neither put in a defence, nor allege that he has one,</p> <p>A party’s failure to secure an appeal from the judgment of a justice of the peace against him, though he had complied with all the requirements of the law for such an appeal, except prepayment of the justice’s fee therefor which was waived, was such an accident or mistake as entitles him to relief.</p>

Audita Querela to set aside a judgment of the county court. Trial by court at the March Term, 1910, Washington County. Butler, J., presiding. Judgment for the defendant. The-plaintiff excepted. The opinion states the case. If a judgment of non-suit is properly set aside, it must be done at the same term at which it is rendered. Biggs v. Chester, 2 Cranch’s C. C. 637; Hunt v. Griffin, 49 Miss. 742; Nichols v. Hazel, 18 Fed.

Case for deceit in the sale of a farm. Plea, the general issue. Trial by court at the June Term, 1909, Orange County, Taylor, J., presiding. Judgment for the defendant to recover his costs. The plaintiff excepted. The opinion states the case.

Trespass for assault and battery. Plea, tbe general issue. Trial by jury at the April Term, 1910, Essex County, Waterman, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion sufficiently states the case. See State v. Roby, 83 Vt. 120.

Appeal in Chancery, Washington County. Q Heard at Chambers on June 11, 1910, on the pleadings, findings of fact by the chancellor, and the orator’s exceptions thereto. Exceptions overruled, and bill dismissed with costs to the defendant. The orators appealed. The opinion states the case.

Case for delay in the delivery of freight. Plea, the general issue. Trial by jury at the September Term, 1909, Chittenden County, Miles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. No legal obligation rested on defendant to notify W. B. Johnson & Co. of the arrival of said car of corn at Essex Junction, even though Buss & Co. had requested it. Blumenthal v. Brainerd, 38 Vt. 402; Bank v. Champlain Trans.

Case for negligence. Plea, the general issue. Trial by jury at the March Term, 1910, Franklin County, Taylor, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Assumpsit on -a policy of- accident insurance. Plea, the general issue. Trial by court on an .agreed statement of facts at the December Term, 1910, Addison County, Stanton, J., presiding. ,-, Judgment for the defendant to recover its costs.

Appeals in Chancery, Franklin County. Both cases heard at Chambers on January 20, 1911, on demurrer to the respective bills, Miles, Chancellor. Decree in each case sustaining the demurrer and dismissing the bill with costs to defendants. The opinion sufficiently states the case.

Case for negligence. Plea, the general issue. Trial by jury at the March Term, 1910, Franklin County, Taylor, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The defendant moved to set aside the verdict as “being excessive, and also not warranted by the facts in the case and the law applicable thereto. ” Motion denied, to which defendant excepted.

Book Account, Windham County, April Term, 1910, Miles J., presiding. Pleas in bar showing the disability of the plaintiff to sue, and issue joined thereon to the jury, and thereupon heard on plaintiff’s motion for judgment to account. Judgment to account rendered. The defendant excepted. The opinion states the case.

Petition for a writ of certiorari, brought to the Supreme Court at its January Term, 1911, and heard at the February Term, 1911. The opinion states the case.