Volume 92 — Vermont Reports

Case for negligence in failing to deliver a carload of screens that defendant had undertaken to transport as a common carrier. Plea, the general issue with notice. Trial by jury at the September Term, 1915, Chittenden County Court, Miles, J., presiding. Yerdiet and judgment for plaintiff. Defendant excepted. At the close of all the evidence, defendant moved for a directed verdict. Motion overruled to which defendant excepted. The opinion states the case.

Petition for leave to enter an appeal from the judgment of a justice of the peace, under P. S. 2023, brought tó the city-court for the City of Burlington. Petitionee moved to dismiss the petition upon the ground that the court had no jurisdiction or authority to consider or hear the petition or to enter judgment therein. A hearing on the motion before the city court, G. S. Palmer, Judge. Judgment, granting the motion, pro forma, and dismissing the petition.

Answer, alleging an accord and satisfaction. Reply, a general denial. Trial by jury at the December Term, 1916, Caledonia County, Butler, J., presiding. Verdict for plaintiff. Defendant excepted. The opinion states the case.

Tort for Negligence. Plea, the general issue. Trial by-jury at the June Term, 1916, Caledonia County, Waterman, J., presiding. Verdict for plaintiff. Defendant excepted. The opinion states the ease. Both the defendants cannot be held. It was either the duty of the landlord to make the repairs, or the duty of the tenant to make them. There was no evidence of á joint duty in that respect.

Assumpsit to recover for expenditures in the support of a pauper. Plea, the general issue. Heard in vacation after the September Term, 1916, Orleans County, Stanton, J., presiding. Statement by Watson, C. J. This case was heard below on a referee’s report and defendant’s exceptions thereto. The exceptions were overruled and judgment rendered for the plaintiff to recover the amount found to have been expended by it in the support of the pauper, L. GL Bush and his wife.

Assumpsit, under P. S. 3667, to recover money expended in the support of a pauper. Plea, the general issue. Trial by court at the September Term, 1916, Rutland County, Butler, J., presiding. Judgment, on facts found by the court, for plaintiff. Defendant excepted. The opinion states the case.

Tort for criminal conversation, and alienation of the affections of plaintiff’s wife. Plea, the general issue. Trial by jury at the September Term, 1916, Washington County, Butler, J., presiding. Yerdiet and judgment for the plaintiff. Defendant excepted. While the case was pending on exceptions defendant brought a petition for a new trial on the ground of surprise, which was heard in Supreme Court on the petition and supporting affidavits. The opinion states the case.

Petition for a new trial, on the ground of newly discovered evidence, and surprise. Heard at the May Term, 1917, Supreme Court, on petition, answer and depositions of witnesses. The action was in contract and the trial below was by court at the December Term, 1915,-Windsor County, Miles, J., presiding. Judgment for defendants. The plaintiff petitioned for a new trial. The opinion states the case.

Tort for Conversion. Plea, the general issue. Trial by the Orleans County Municipal Court, H. B. Cushman, Judge. Judgment, on facts found by the court, for plaintiff. Defendant excepted. The plaintiff was a constable and brought the action to recover for the alleged conversion of personal property, claimed to have been attached,by him, on a writ placed in his hands for service and • described in his return upon the writ. The opinion states the case.

Indictment for assault with intent to bill and murder, being armed with a dangerous weapon. Plea, not guilty. Trial by jury at the September Term, 1916, Washington County, Fish, J., presiding. Verdict guilty of assault with intent to kill. Respondent excepted. It was claimed by respondent that the shooting was done by him in self-defence.

Tort. Plea the general issue. Trial by jury in the Hartford Municipal Court, A. G. Whithorn, Judge. Verdict for plaintiff. The declaration consisted of a count in case for deceit: After the jury had been empaneled, plaintiff moved for leave to amend the declaration by filing an additional count in trover. Motion granted and defendant excepted.

Case for Negligence. Plea, the general issue. Trial by jury at the September Term, 1916, Orleans County, Stanton, J., presiding. Verdict and judgment for defendant. Plaintiff excepted. The opinion states the case.

Case against a physician for malpractice in setting and caring for a fractured femur. Plea, the general issue. Trial by jury at the September Term, 1916, Orleans County, Stanton, J., presiding. Verdict and judgment for plaintiff. Defendant excepted.

<p>Common Counts — Recovery Thereunder — Money which Defendant cannot Conscientiously Retain — Laches—When Available as Defence.</p> <p>Where one has money in his hands belonging to another, which he has no right conscientiously to retain, the same may be recovered in an action of contract on the common counts.</p> <p>Defendant conveyed by warranty deed certain land to plaintiff’s father, on whose death it was decreed by the probate court to the plaintiff. Defendant, thereafter, deeded the same land by warranty deed to plaintiff, who did not know that it had been decreed to him, but believed it to be owned by defendant, as the latter knew. Held, defendant could not conscientiously retain the purchase price paid him by plaintiff, and the fact that plaintiff had not offered to release him from liability on his warranty deed, did not affect his liability, he being already bound by his warranty deed to plaintiff’s father, to whose rights plaintiff succeeded. •</p> <p>To avail himself of the equitable defence of laches, a defendant must make it appear that the delay of which he complains has worked an injury to him.</p>

Appeal in Chancery. . Heard on demurrer to the bill of complaint in vacation after the August Term, 1915, Grand Isle County, Stanton, Chancellor. Demurrer overruled, pro forma, and bill adjudged sufficient. Defendants appealed. The opinion states the case.

Action on the case for killing two dogs belonging to plaintiff.

<p>Contract on a promissory note indorsed by defendant. Special plea, that defendant was released from liability by reason of the discharge of an attachment previously made in a suit on the note, brought by plaintiff against the maker. Trial by court at the March Term, 1917, Chittenden County, Butler, J., presiding. Judgment for plaintiff on facts found by the court. Defendant excepted. The opinion states the case.</p>

Contract on a promissory note, indorsed by defendant. Special plea, that the cashier'of the plaintiff bank had altered the note in a material particular. Trial by court at the March Term, 1917, Chittenclen County, Butler, J., presiding. Judgment for plaintiff on facts found by the court. Defendant excepted. The opinion states the case.

Case. Plea, the general issue and a special plea. Heard on demurrer to the special plea at the June Term, 1916, Bennington County, Fish, J., presiding. Demurrer overruled, pro forma, and plea held sufficient. Plaintiff excepted. The opinion states the case. It was not necessary to aver or prove the termination of the first suit. Grainger v. Hill, 4 Bing.

Tort for fraudulent representations in tbe sale of real estate. Plea, the general issue. Trial by jury at the June Term, 1916, Addison .County, Miles, J., presiding. Yerdict for defendant. Plaintiffs excepted. The opinion states the case. The court should have heard the testimony offered .by plaintiffs to show that the jury were improperly drawn. Jones v. State, 3 Blaekf. (Ind.) 37; Gardner v. Turner, 9 Johns.

Information for maintaining posters prohibiting fishing in a stream from which respondent had the exclusive right to take fish for more than one year after the waters thereof were last stocked by him, in violation of No. 201, Acts 1912. Plea, the general issue. Trial by jury at the December Term, 1916, Windsor County, Waterman, J., presiding. Yerdict, guilty. Respondent excepted. The opinion states the case.

Appeal in Chancery. Heard on bill, answer and facts found by the chancellor in vacation after the September term, 1916. Washington County, Fish, Chancellor. Decree for the plaintiff. The defendants appealed. The opinion stated the case.

Appeal in Chancery. Heard on bill, answer and facts found in vacation after the June Term, 1916, Caledonia County, Slack, Chancellor. Decree for defendants. Plaintiff appealed. The opinion states the case.

Assumpsit. Heard on the report of a commission npon the question of the right of the claimant to the funds in the hands of the trustee at the September Term, 1916, Chittenden County, Waterman J., presiding. Judgment for the claimant. Plaintiff excepted. The opinion states the facts.

Complaint, charging that the respondent did “sell intoxicating liqnor without authority. ’ ’ Plea not guilty. Trial by jury in the city court of the city of Barre, H. William Scott, Judge. Verdict guilty. After verdict and before sentence the respondent moved in arrest of judgment for that the complaint was uncertain, insufficient and indefinite and did not legally inform her of the causes and nature of the accusation against her. Motion overruled. Respondent excepted.

General Assumpsit to recover rent claimed to be due under a written lease, for the period between November 1, 1913 and March 1, 1914. Trial by court at the September Term, 1915, Chittenden County, Miles, J., presiding. Judgment for plaintiff to recover rent from November 1, 1913 to November 15, 1913. Plaintiff excepted. The opinion states the case.

Contract. Plea, tbe general issue. Trial by jury at the September Term, 1916, Rutland County, Butler, J., presiding. Verdict and judgment for defendant. Plaintiff excepted. The opinion states the case.

Appeal in Chancery. Heard on bill, answer, report of special master, and plaintiff’s exceptions thereto at the March Term, 1916, Washington County, Waterman, Chancellor. Decree, overruling plaintiff’s exceptions to the report, and dismissing the bill, with costs to defendant. Plaintiff appealed. The opinon states the case.

Case for Negligence. Plea, the general issue. Trial by jury at the December Term, 1913, Caledonia County, Fish, J., presiding. Verdict for plaintiff. Defendant excepted. The opinion states the case.

Prosecution for procuring an abortion, under P. S. 5889. Plea, not guilty. Trial by jury at the December Term, 1916, Caledonia County, Butler, J., presiding. Verdict, guilty, and judgment on verdict. Respondent excepted. The opinion states the case.

Appeal in Chancery. Heard on demurrers to the bill and cross bill in vacation after the March Term, 1916, Washington County, Butler, Chancellor. Decree sustaining both demurrers, and dismissing both bill and cross bill. Both parties appealed. The opinion states the ease.

Assumpsit. Heard on the report of a commissioner npon the disclosure of the trustees and the trustees’ exceptions thereto in vacation after the December Term, 1916, Windsor County, Waterman, J., presiding. Judgment that the trustees were chargeable and overruling their exceptions to the report. The trustees excepted. The opinion states the case.

<p>Appeal from a decree of distribution made by the probate court for the District of Orleans. .Trial by court, upon an agreed statement of facts and oral testimony, at the September Term, 19Í6, Orleans County, Stanton, J., presiding. Judgment, affirming the decree of the probate court. Appellants excepted. The opinion states the case.</p>

<p>Witnesses — Cross-examination—Use of Papers to Refresh Recollection — Discretion of Court — Admissibility of Evidence not Excepted to — Presumption of Innocence — Weight as Evidence — Respondent’s Refusal to Testify.</p> <p>Where a witness, during his direct examination, has referred to certain papers for the purpose of refreshing-his recollection, the cross-examiner is entitled to have such papers handed to him for purpose of cross-examination, but is not entitled to other papers, held in the witness’ hand while testifying, but not referred to by him.</p> <p>Where, in such circumstances, the cross-examiner did not know whether the papers handed to him were those referred to or not, the action of the court in ascertaining what papers were required, by inquiry from counsel and witness, and by examination of all the papers, and in giving him the use of such, was not error.</p> <p>In a prosecution for the illegal sale of intoxicating liquor, it is within the discretion of the trial court to exclude a question asked on cross-examination of a State’s witness, as to whether the witness had stated that he had a right to be, and had been, engaged in the selling of liquor.</p> <p>The question of the admissibility of evidence, not excepted to in the court below, is not before the Supreme Court.</p> <p>In a criminal prosecution, an instruction that the presumption of respondent’s innocence is a piece of evidence to be considered and weighed by the jury, with other evidence, is all that the respondent is entitled to upon this point.</p> <p>The presumption of innocence, in a criminal prosecution, is to be given such weight as evidence as the jury think it ought to have.</p> <p>An instruction that respondent’s refusal to testify should not be taken against him, with the explanation that respondent might testify or not as he choose, and that if he did not testify, the fact must not be taken against him, held, correct and not open to misconstruction.</p>

<p>Illegal Sales of Intoxicating Liquor — Evidence—Materiality.</p> <p>In a prosecution for the illegal sale of intoxicating liquor, the testimony of a witness that he went to respondent’s house with two other persons, and got some whiskey there, but did not know who brought it out, nor who called for it, and drank some of it with the others, was material, when taken in connection with other evidence, and tended to show that respondent was guilty as charged.</p> <p>In a prosecution for the illegal sale of intoxicating liquor, the declaration of a detective employed by the State, but not called to testify, to the effect that, if he and the person to whom he was talking could not get liquor at respondent’s house, they should go to another place, was properly excluded, as not being evidence against the State for any purpose.</p> <p>In a prosecution for the illegal sale of intoxicating liquor, evidence offered by respondent, that a detective employed by the State, but not called to testify, was himself engaged in the illegal traffic in intoxicating liquor, and was selling to the witnesses who testified against respondent, was wholly irrelevant, and was pr.operly excluded.</p>

<p>Contract. Heard by the presiding judge on a point of law arising on the assessment of damages by the clerk, and on the disclosure of the trustees, in vacation after the September Term, 1916, Chittenden County, Waterman, J., presiding. Judgment affirming the assessment and holding the trustees liable on their disclosures. Defendant claimed an exception. The opinion states the ease.</p>

<p>Tort for Negligence. Plea, the general issue. Trial by jury at the September Term, 1916, Washington County, Fish, J., presiding. Verdict for plaintiff. Defendant excepted.</p> <p>The plaintiff was a powder man in the employ of the defendant. After exploding a blast in a sheet of granite, he was ordered by defendant’s foreman to prepare and fire a “seam blast”, in a seam in the stone which had been made by the first blast. There was evidence tending to show that it was the duty of the foreman to inspect the stone after the first blast to determine whether it was safe to fire the ‘! seam blast. ’ ’ The foreman told plaintiff to hurry, and the latter prepared the blast, but, while preparing to fire it, the stone moved and the powder exploded, causing the injuries complained of.</p> <p>At the close of plaintiff’s evidence, the defendant rested its ease and moved for a verdict, the grounds of which motion appear fully in the opinion.</p> <p>In addition to the general verdict, the jury brought in a special verdict, in answer to a question submitted to them by the' court, in which they found that the accident was the result of the incompetency of the foreman.</p> <p>A single act of casual neglect by a servant does not show incompetency so as to charge the master with negligence in retaining the servant in his employ. Bailey, Personal Injuries, Sec. 340, pp. 897, 898; Holland v. So. Pac. Co., 100 Cal. 240; Baulac v. R. R. G., 59 N. V. 356; Conrad v. Gray, 109 Ala. 130; Couch v. Coal Co., 46 Iowa 17;.Baltimore Elec. Co. v. Neal, 65 Md. 431; Harvey v. R. R. Co., 88 N. Y. 481; Wicklund v. Sayles Coal Co., 119 Iowa 338; Hathaway v. Ry. Co., 92 Iowa 340; Cooper v. Ry. Co., 23 Wis. 668.</p> <p>A single act of negligence may be sufficient to establish incompetency. Mahoney’s Admr. v. Rutland R. R. Co., 81 Vt. 210, 217; Russ v. G. V. Ry. Co., 78 Vt. 424; Place v. G. T. Ry. Co., 82 Vt. 42, 48; Still v. San Francisco By. Go., 154 Cal. 559; Murphy v. St. Louis, etc., B. B. Go., 71 Mo. 202; Lee v. Michigan Cr. Go., 87 Mich. 574; Pleasants v. B. B. Go., 121 N. C. 492; Heath v. New Haven, etc., Go., 140 Mass. 175; Evansville, etc., B. B. Go. v. Guyton, 115 Ind. 450.</p>

<p>Evidence — Cross Examination — Exceptions—When Controlled ~by Transcript — Plea of Guilty to Criminal Complaint— Weight as Evidence in Civil Suit — Discretion of Court— Argument to Jury — Harmless Error — -Charge of Court.</p> <p>In an action of trespass for assault and battery, where defendant testified, on direct examination, that he had seen plaintiff strike and kick another person upon a certain occasion, it was not error to allow the question, on cross examination, whether that person had not been greasing the face of the plaintiff’s hammer; and defendant’s reply that he knew nothing about that rendered the answer harmless.</p> <p>A plea of guilty to a criminal complaint for breach of the peace is an admission that the conduct in question was unlawful and, in a civil action to recover damages resulting from the assault committed in the transaction, the weight to be given to the plea, as evidence, depends upon the conditions and circumstances under which it was entered, and it is the duty of the jury to consider the admission in the light of such explanation as defendant sees fit to give, a-full opportunity to test the reasonableness of such explanation by means of cross examination having been afforded.</p> <p>Under the circumstances, h eld, that the'trial court did not overstep the bounds of discretion in permitting cross examination of defendant upon his explanation of a plea of guilty entered by him to a charge of breach of the peace.</p> <p>Where it does not appear that there was prejudicial error in the argument of counsel to the jury, an exception thereto will not be sustained.</p> <p>In an action of trespass for assault and battery, the charge of the court upon the subject of self defence examined and, taken as a whole, held, not misleading.</p> <p>In an action of trespass for assault and battery, the charge of the court upon the subject of a plea of guilty entered by defendant to a criminal complaint for breach of the peace, held without error, it fairly appearing that the complaint included the assault committed upon plaintiff.</p>

<p>Petition for writ of habeas corpus brought to the Supreme Court for Rutland County, and heard on an agreed statement of facts, and motion to dismiss. The opinion states the case.</p> <p>The former proceedings in county court, wherein relator’s petition for a writ of habeas corpus was dismissed do not constitute a bar to this proceeding. Re Barker, 56 Vt. 1; Re Miskmins, 49 L. R. A. 831; Re Clark, 15 L. R. A. 389; Re Justus, 25 L. R. A. (N. S.) 483.</p>

<p>Chancery Pleading — Answer—Demurrer—Sufficiency of Bill— Amended Bill — Cross Bill — Departure—Findings of Fact — Exceptions — Trial—Objection not Made Belov)— Harmless Error — Presumptions—Possession of Beal Estate — Bight of W ay — Adverse Possession — Interruption—Evidence—Declarations Against Interest — Admissions—Parol Evidence— Admissibility of Grand List Boohs — Entry Upon Beal Estate —Presumed to be Under Deed — Tenancy in Common — Ouster of Co-tenant — Claim of Bight to Entire Premises — Conveyance of Entire Premises — Payment of Taxes — Bemoteness of Evidence — Discretion of Court — Burden of Proof— Adverse Character of Bight of Way — Findings by Chancellor — Transcript—When Findings Supported by Evidence— When not Prejudicial — Presumptive Grant — When Supported by Evidence — Exceptions to Findings of Fact— Becord — Construction—Intendments Against Exceptor— Motion for Beargument — When not Granted.</p> <p>With the exception that a defendant in a suit in chancery may, under Chancery Rule 15, insert in his answer any special matter that goes to the merits of the bill with the same benefit as if he had formally demurred to the bill, there must be no overlapping of defences, and, if a defendant answers a part of the bill and then demurs to the same matter, his answer will overrule his demurrer.</p> <p>Allegations in a bill in chancery that plaintiff and his predecessor in title made improvements on premises to which plaintiff claimed a prescriptive title, and in which defendant claimed a half interest, cut wood thereon and paid the taxes, are not demurrable on the ground that thereby plaintiff acquired no right to deny defendant’s title, where these and other circumstances alleged, taken together, are sufficient to afford a presumption of a conveyance from defendant’s predecessor to plaintiff’s predecessor, as well as to show an ouster of defendant’s grantor, such as would ripen into title by adverse possession.</p> <p>After having filed an amended cross bill, defendants in a suit in equity cannot be heard to complain that plaintiff is permitted by a supplemental bill, in the nature of a cross bill, to seek affirmative relief appropriate to the case made out by them in their amended cross bill.</p> <p>Where plaintiff, in his original bill, alleged that, he and his father before him owned and occupied a certain farm, but without setting out by what title, there was no departure when, in a supplemental bill, plaintiff alleged his title with particularity, and consistently with the earlier allegation of ownership.</p> <p>Where plaintiff’s evidence tended to show title to the premises in question in the grantor of his predecessor in title, to an undivided one-half by the record and to the other half by a lost grant, an exception to a finding of the chancellor, based upon a deed from such grantor to plaintiff’s predecessor, on the ground that such deed was received on the understanding that it should be used as evidence only if a title should be shown which could be conveyed by the grantor, is without force.</p> <p>A ground of objection, not raised at the trial, will not be considered in Supreme Court.</p> <p>An exception to testimony which cannot possibly have prejudiced the excepting party is without merit.</p> <p>Where it appears that one is in possession of real estate, it will be presumed that his possession is lawful, nothing to the contrary appearing.</p> <p>Interference with the enjoyment of a right of way by one in possession under the owner of the land has the same effect, as an interruption of adverse possession, as would the same act by the owner himself, and bears upon the question of the continuous use of the right of-way by the claimant thereof.</p> <p>An inventory of an estate, made and filed by the administrators thereof, one of whom was intestate’s sole heir at law and succeeded to all his property and was also defendant’s grantor, wherein there is no mention of the land in question, which was claimed to have been inherited by defendant’s grantor from the intestate, stands as a declaration against an existing interest made by defendant’s grantor before attempting to convey the premises.</p> <p>The admissions of a predecessor in title, made while the title was by hypothesis still in him, are not governed by the hearsay rule and its exceptions, but are to be treated as primary evidence, and, on the ground of privity, stand as though made by the party opponent.</p> <p>The test of the admissibility of an admission made by a predecessor in title is whether, if the one who has made the admission was asserting ownership of the premises, his admission in the nature of a disclaimer would be evidence against him.</p> <p>Disserving declarations of a former owner of real estate made before he parted with the title are admissible against those claiming under him on any issue relating to title, ownership, or possession which may be proved by parol evidence.</p> <p>Whether plaintiff’s predecessor in title acquired ownership of the land in question in part through a presumptive grant is an issue provable by parol evidence.</p> <p>An exception to a finding by the chancellor, made upon evidence not received under’ exception, is without merit.</p> <p>Where it is material to show who paid the taxes upon certain premises in question, the grand list books, showing to whom they were listed for taxation, are competent evidence.</p> <p>The entry by a grantee in a deed upon the premises described therein, nothing to the contrary appearing, will be presumed to be under the deed.</p> <p>One tenant in common may acquire title by adverse possession against his co-tenant; but this presupposes an ouster, otherwise the possession of one is, in law, the possession of both.</p> <p>In determining whether certain acts of one joint tenant are evidence of an ouster and possession adverse to another joint owner, much depends upon the circumstances of the entry, there being an important distinction between the case where a tenant in common entering or being in possession as such subsequently asserts a claim adverse to his co-tenant, and the case where the entry is accompanied by such adverse claim.</p> <p>Where an ouster is asserted by one who has held possession for or with his co-tenant the presumptions are against him and can only be overcome by some overt and notorious acts of an unequivocal character, indicating an assertion of ownership of the entire premises to the exclusion of the right of the co-tenant.</p> <p>Where the entry of a joint owner of real estate is not in subordination to the common title, he does not enter as a tenant in common, and, if he enters under a deed purporting to convey the entire premises, he is presumed to have entered under a claim of right to the whole.</p> <p>Where an ouster by one tenant in common of his co-tenants has been established, whether the subsequent possession is of a character to ripen into title depends upon the same facts as in a case of adverse possession where the question of co-tenancy is not involved.</p> <p>A conveyance of the entire premises by one tenant in common, with entry thereunder by the grantee, claiming title of the whole, and notice to the other co-tenant of such claim, works an ouster of the latter and lays the foundation for acquiring title to the- whole by adverse possession.</p> <p>The payment of taxes by one co-tenant in possession is admissible on the issue of a- presumptive grant to such co-tenant from the other joint owner of the premises.</p> <p>The payment of taxes by the actual occupant of land is some evidence of the adverse character of the occupancy and, if continued over a long period unexplained, affords strong evidence that the possession was under a claim of right and adverse.</p> <p>The payment of taxes by one tenant in common in possession will not alone show an ouster of his co-tenant, and may not tend to show it, the presumption being that in doing so he acted for himself and his co-tenant; but where the ouster is otherwise established, evidence of such payment is admissible as tending to characterize the payer’s subsequent possession as being adverse.</p> <p>Evidence that the relations between two tenants in common were very friendly and confidential is admissible upon the issue of a presumptive grant from one to the other.</p> <p>Where evidence is not as matter of law too remote to be admissible, its admission, as against the objection of remoteness, lies in the discretion of the trial court. -</p> <p>The burden of proving that a right of way is adverse is upon the party alleging it.</p> <p>Where the chancellor is sitting as trier of facts it is for him to say, in the exercise .of a sound discretion, when and how far the subordinate facts upon which he rests his ultimate findings shall be reported.</p> <p>If the evidence to support a finding made by a chancellor is not sufficient, or if the supporting evidence is not admissible, or if a material finding which the evidence compels is denied, the rights of the aggrieved party can be protected by proper exceptions, and, if an exception is taken which necessitates an examination of the evidence in Supreme Court, it is the duty of the chancellor, upon written request, to send up such portions thereof as the circumstances require.</p> <p>A finding that a person must have frequently passed hy a certain farm is supported hy evidence that the farm was on the main road, four miles from his residence, and that he was a hotel keeper and livery man.</p> <p>A party is not prejudiced hy a finding which can he rejected without disturbing the decree against him.</p> <p>It will not he presumed that a chancellor made an improper use of a fact found in determining the ultimate questions for decision.</p> <p>A finding that one had no claim against the estate of a deceased person is supported by evidence that the records of the probate court showed no claim presented.</p> <p>It is not necessary to support the presumption of a grant that the trier should believe and find that a conveyance was in fact executed, hut it is sufficient if the evidence leads to a conclusion that the conveyance might have been executed and that its existence would be a solution of the difficulties arising from its non-execution.</p> <p>In the absence of evidence of the actual execution of a deed of real estate, a conveyance may he presumed, when- no facts are shown inconsistent with the supposed existence of such conveyance, and where the things done and omitted with regard to the property in controversy hy the respective parties, for long periods of time after the supposed execution of the conveyance, can be explained satisfactorily only upon the hypothesis of its existence.</p> <p>The circumstances of this case, held, to support the presumption of such a conveyance.</p> <p>A deed of one tenant in common to a stranger, of the entire premises, with possession thereunder by such stranger claiming title to the whole, coupled with notice to the other co-tenant, affords a sufficient basis for a finding of an ouster of the latter.</p> <p>Where there is evidence to afford the basis of an inference that a co-tenant had notice of an adverse claim to the entire premises hy a grantee of the whole under a deed of the other co-tenant, a finding of such notice will not he disturbed.</p> <p>In order to charge a co-tenant with notice of an adverse claim to the entire premises, it. is sufficient if the acts of adverse possession are such in their nature and attending circumstances that one reasonably attentive to his own interests would thereby know that an adverse right is being asserted.</p> <p>An exception to a conclusion stated in a chancellor’s findings of facts, based upon and supported hy facts and circumstances also stated therein, will not be sustained.</p> <p>In construing the record to determine whether certain evidence was received under exception, all intendments are against-the exceptor.</p> <p>Where it appeared that a tenant in common had given a deed of the whole premises to a stranger, who occupied thereunder claiming title, with notice to the other co-tenant, without objection by the latter, and that the land had never been listed to the latter for purposes of taxation, the fact that the latter was a careful business man was a circumstance to be taken into consideration, with the other facts and circumstances, on the issue of a presumptive grant from him to his co-tenant.</p> <p>Where a question has been decided in Supreme Court upon a ground not argued, the Court will not, on motion for reargument, reopen the case to give the unsuccessful party opportunity to debate the matter, no error being pointed out.</p> <p>In order to effect an ouster of a co-tenant by entry and claim of title under a deed of the entire premises given by the other co-tenant, either actual notice to the former of the claim, or circumstances from which notice will be presumed is required.</p>

<p>Contract. Plea, the general issue. Trial by the Caledonia County Municipal Court, George C. Frye, Judge. Judgment on facts found by the court, for defendant. Plaintiffs excepted. The opinion states the case.</p>

<p>Assumpsit, in the common counts. Plea, the general issue. Trial by jury at the June Term, 1917, Bennington County, Slack, J., presiding. Verdict for plaintiff. Defendants excepted. The opinion states the case.</p> <p>If a person sending or delivering goods names a price, and the one to whom they are delivered accepts the goods and deals, with them as his own, a sale for the price named is implied. 35 Cyc. 59; Yeager Milling Co. v. Brown, 128 Mass. 171; Boughton v. Standish, 48 Vt. 594; Barnes v. Shoemaker, 112 Ind. 512, 14 N. E. 367.</p>

<p>Ejectment. Trial by jury at the December Term, 1916, Bennington County, Miles, J., presiding. Verdict for plaintiff. Defendants excepted. The opinion states the case.</p>

<p>Case, to recover for injuries to a granite monument, delivered under a bill of lading to defendant as initial carrier, to be shipped from Barre, Vermont, to Waseca, Minnesota. Plea, the general issue. Trial by jury at the March Term, 1917, Washington County, Miles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.</p>

<p>Evidence — Remoteness—Discretion of Court — Motion for Directed Verdict — Master and Servant — Safe Place Doctrine. —Jury Question — Duty of Master to Inspect — Reliance by Servant — N egligence — C ontributory N egligence — ‘ ‘ V ariance”- — “In and About” — Motion to Set Aside.</p> <p>The question of tbe remoteness of offered evidence is, ordinarily, one addressed to the discretion of tbe trial court, but this discretion is a judicial discretion and must be exercised in such a way as to make the result harmonize with tbe true spirit of tbe law.</p> <p>Evidence that tbe penstock at defendant’s mill was leaking a year previous to tbe accident to plaintiff was properly excluded by tbe trial court, in its discretion, as being too remote to have any tendency to prove that it was in that condition at the time of tbe accident.</p> <p>On reviewing a motion for a directed verdict, tbe Court will take as established all that tbe plaintiff’s evidence fairly and reasonably tended to show.</p> <p>Plaintiff was employed by defendant to oil tbe machinery in tbe latter’s mill, but was not instructed as to tbe location of tbe places to be oiled. Thinking be smelled a hot box, be attempted to find tbe heated bearing, and in doing so went to a place where there was in fact no machinery to see if there was anything there that needed oil. While there, tbe floor gave way, and be suffered tbe injuries complained of. Held, it was plaintiff’s duty, under the circumstances, to make reasonable search for tbe bearings to be oiled, and if be acted reasonably in going where he did, be was, in tbe eye of tbe law, within tbe line of duty.</p> <p>Wherever a servant may, by tbe requirements of bis engagement, reasonably be expected to go, is a part of bis working place to which tbe safeplace doctrine applies.</p> <p>In an action of tort by a servant against his master to recover for personal injuries, tbe question whether or not tbe servant, at tbe time of tbe accident, was where be might reasonably be expected to go by the requirements of his engagement, was for the jury.</p> <p>The duty of inspecting the floor of a mill is upon the proprietor thereof, and a servant in his employ has a right, nothing to the contrary appearing, to assume that this duty has been performed.</p> <p>Where the evidence is not all one way, the questions of negligence and contributory negligence are for the jury.</p> <p>The term “variance” in its legal sense means material difference.</p> <p>Under a declaration, charging that defendant failed to provide plaintiff a safe place in which to work, in that the floor was insufficient to sustain him as he passed over it in and about his duty of oiling certain machinery, proof that plaintiff, at the time of the accident, was looking for the machinery, with the location of which he was not familiar, for the purpose of oiling it, did not constitute a variance, because he was doing something which was incidental to his duties and fairly within the terms “in and about” that work, and any inaccuracy of other allegations in regard to what he was doing were immaterial.</p> <p>A motion to set aside a verdict is addressed to the discretion of the trial court, and where it does not appear that this discretion was withheld or abused, the ruling will not be revised.</p>

<p>Contract upon a fire insurance policy. .Answer, the general issue, with notice of special matter in defence; among other things, that plaintiff had not furnished defendant with an amended proof of loss within thirty days after notice that the proof already furnished was defective, and that therefore the policy was void. Trial by jury at the September Term, 1916, Rutland County, Butler, J., presiding. Verdict for plaintiff. Defendant excepted. The opinion states the case.</p>

<p>Contracts — Breach—Damages.</p> <p>In a contract of sale of certain merchandise, the breach of a stipulation that the vendor would not sell like merchandise to any of the vendee’s competitors in trade will not justify the vendee in refusing to pay the contract price, since the breach does not go to the essence of the contract, but only to a part of the consideration, and may be compensated for in damages.</p> <p>When a contract has been partly performed by one party, and the other has derived a substantial benefit therefrom, the latter cannot refuse to comply with its terms simply because the former fails of complete performance.</p>

<p>Petition for new trial, heard at the February Term, 1918, of Supreme Court, on petition, and affidavits in support thereof. Petitioner was convicted of the crime of murder in the first degree at the June Term, 1917, Bennington County. The opinion states the case.</p>

<p>Information for the illegal sale of intoxicating liquor. Plea, not guilty. Trial by jury at the Special May Term, 1917, Windsor County, Stanton J., presiding. Verdict, guilty. Respondent excepted. The opinion states the case.</p>

<p>Information for Adultery. Plea, not guilty. Trial by jury at the Special June Term, 1917, Windsor County, Sta/nton, J., presiding. Verdict guilty. After verdict and before judgment, respondent moved in arrest of judgment, for that the information was fatally defective in that it failed to allege whether the particeps criminis was married or single, or, in fact, that she was a woman. Motion overruled. Respondent excepted.</p> <p>The information alleged that respondent “being then and there a married man, and having a lawful wife then in life, did carnally know one Rena M. Brittell and with her did commit adultery contrary to the form, force and effect of the statute in such case made and provided and against the peace and dignity of the State.”</p>

<p>New Trial — Newly Discovered Evidence — Sufficiency.</p> <p>The question raised on motion in arrest in this case is decided in State v. Eaton, ante p. 291 and that decision is controlling.</p> <p>A new trial will not be granted, as a general rule, when the newly discovered evidence relied upon only tends to discredit or impeach an opposing witness, especially if it is denied by the witness sought to be impeached; but this rule is subject to exception, and is in the control of the Court, which will not grant a new trial unless it is reasonably certain that injustice has been done and that the result of a new trial will be different.</p> <p>Where a petition for new trial brought by respondent after conviction of adultery was supported by the affidavit of respondent’s minor daughter to the effect that a certain part of the latter’s testimony given on trial against respondent was untrue, and by the affidavits of two others that respondent’s daughter had told them, after the trial, that she had been persuaded to testify falsely, held,, in view of a subsequent affidavit of respondent’s daughter, retracting her former affidavit, of the fact that her testimony was corroborated on trial by that of other witnesses, and of other circumstances in the case, that it could not be said that it was reasonably certain that injustice had been done, and that the result of a new trial would be different, and the petition should be dismissed.</p>

Petition for divorce, on the ground that the libellee, although of sufficient pecuniary and physical ability so to do, without cause, grossly, wantonly and cruelly refused and neglected to provide suitable maintenance for libellant. The proceeding was uncontested. Trial at the June Term, 1917, Caledonia County, Fish, J., presiding. After hearing, the court dismissed the petition. Libellant excepted. The opinion states the case.

<p>Courts — Jurisdiction—When Open to Inquiry — Annulment of Marriage — Judgment — Impeachment — Exceptions—Sufficiency — Custody of Minor Child.</p> <p>The jurisdiction of a court of another state in granting a decree of annulment of marriage is open to inquiry in a collateral proceeding in a court of this State.</p> <p>A judgment of annulment of marriage rendered in another state by a court having jurisdiction of the parties and of the subject matter cannot be impeached by either of the parties thereto in a collateral action, by reason of false testimony given at the time, even though given by a party.</p> <p>The plaintiff in a proceeding for divorce has not such an interest in the matter of a judgment of a court of competent jurisdiction in another state annulling a former marriage of the defendant as entitles him to impeach it on the ground of false testimony given at the time.</p> <p>Exceptions which require an examination of evidence not before the Supreme Court will not be considered.</p> <p>In decreeing the custody of a minor child in divorce proceedings, the good of the child is the primary consideration and this can be judged to some extent by the comparative acts of the father and mother showing love and affection for it, and parental interest in its welfare; and so there was no error in decreeing the custody of a minor child of tender years to the mother, against whom a decree of divorce had been granted, when the father, on trial, had attempted to obtain a ruling invalidating the marriage, and so rendering the child illegitimate.</p>

<p>Negotiable Instruments — Assignment—Payment—Bona Fide Holder — Partial Failure of Consideration.</p> <p>A mortgagee of real estate assigned tbe mortgage and note, but no notice of the transfer was given to the mortgagors, who made payments on the note to the mortgagee, believing him to be the owner thereof. The assignee looked to the mortgagee and to an indorser on the note for payment, and expected the mortgagee to collect the note from the mortgagors. Held, the payments made by the mortgagors should in equity be treated as made to the mortgagee as agent of the assignee, to be applied upon the note.</p> <p>The indorsee of a promissory note, negotiated while current, who has paid therefor a sum equal to the face value thereof, less the discount, is, under the Negotiable Instruments Law (No. 99, Acts 1912, sec. 59), prima facie deemed to be a holder in due course, and is presumed to be a bona fide holder, the contrary not appearing.</p> <p>A partial failure of consideration of a promissory note, between the original parties thereto, is not available pro tanto in defence against a subsequent holder for value and before maturity.</p>

<p>Contract. Heard on plaintiff’s demurrer to the second count of defendants’ answer, at tbe December Term, 1917, Bennington County, Waterman, J., presiding. Demurrer overruled, and count adjudged sufficient. Plaintiff excepted.</p> <p>The complaint alleged an agreement by defendants to pay plaintiff a commission for effecting the sale of certain land; that plaintiff had performed his part of the agreement, but that defendants refused to” pay him the commission.</p> <p>The second count of the answer was as follows:</p> <p>“.And for further answer in this behalf the defendants say that on or about the 25th day of May, 1910, the Somerset Land Company promised to pay the plaintiff a two and one-half per cent, commission if certain lands were sold to Finch-Pruyn & Co. of Glens Falls, N. Y., for the sum of one million dollars, that neither said lands nor timber thereon, nor any part thereof were then or ever sold to said Finch-Pruyn & Co., that no other or different contract existed between said plaintiff and said defendants or either of them, that thereafter on or about the 29th day of November, 1911, and on or about the 19th day of December, 1911, and on or about the 22d day of December, 1911, the said defendants acting in good faith notified the plaintiff in writing that the said lands including the lands mentioned in the said plaintiff’s declaration and the timber thereon were not- for sale, that the same were not to be offered for sale either by said Bradley, or by anyone else or by anyone acting for, with or through said Bradley; that said defendants thereby then and there acting in good faith wholly terminated and revoked any and all promises, agency, agreements, employment or authority, if any such there were then or theretofore given to or made with said plaintiff by said defendants or either of them, that prior thereto neither the said Bradley nor anyone acting for him or through him or because of him had made any sale of said land or the timber thereon, or found any customer or purchaser who would or did purchase said land or said timber thereon, and this the defendants are ready to verify. Wherefore they pray judgment if the said plaintiff ought to have or maintain his aforesaid action against the defendants. ”</p> <p>To this count plaintiff demurred, among other grounds not insisted upon, for that it amounted to the -general issue.</p>

<p>Appeal in Chancery. Heard on the report of a special master determining the damages occasioned to defendants by the injunction previously obtained against them by plaintiff, and plaintiff’s exceptions thereto, in vacation after the March Term, 1917, Rutland County, Slack, Chancellor. Decree for defendants for the sum found by the master. Plaintiff appealed. The opinion .states the case. • See prior report of this case, 88 Vt. 468, 93 Atl. 120.</p>

<p>Trover, for the alleged misdelivery of a granite monument, shipped by plaintiffs over the defendant railroad, and consigned to themselves at St. Louis, Missouri. Plea, the general issue. Trial by court at the March Term, 1917, Washington County, Miles, J., presiding.</p> <p>Statement by Watson, C. J. It is found that on the 3d day of September, 1915, the plaintiffs delivered to the defendant, at Barre, this State, the monument in question, manufactured by them' for the Norman Monument Company of St. Louis, Missouri, and received of the defendant a bill of lading which is made a part of the findings. The monument consisted of four pieces, each of which was boxed and marked “Chas. Bianchi & Sons, (the plaintiffs,) St. Louis, Mo.” The bill of lading reads: “Consigned to C. Bianchi & Sons. Destination St. Louis, Mo. L. H. Tieman Switch on Mo. Pac.” The bill of lading had printed across its face the words, “not negotiable.”</p> <p>The terminal carrier, the Missouri Pacific Railroad, at the point of destination, without the production of the bill of lading, delivered the car containing the monument, onto the Tieman switch mentioned in the bill of lading. The monument was unloaded from the car by Tieman and held on wagons for twenty days, when it was delivered by him to the Norman Monument Company at Mount Sinai Cemetery, and was afterwards set up there in a family lot.</p> <p>The L. IT. Tieman mentioned lived at St. Louis, and had had the switch in question built by the Missouri Pacific Railroad for his convenience, it being understood that he should be responsible for the freight charges on all shipments placed on that switch. The switch or siding named abutted on Tieman’s land, and no one except Tieman and the railroad company could have goods placed thereon without the former’s consent.</p> <p>The plaintiffs lived in Barre, this State, and had no expectation of receiving the monument personally, at St. Louis. They had previously shipped monumental work to the Tieman switch. No notice was ever given to Tieman of the arrival of the car containing the monument in question, upon the switch, except that he found it there on the tracks of the switch. He unloaded the car because Mr. Norman of the Norman Monument Company had told him that he was expecting it; but Norman had not told Tieman who the shipper was.</p> <p>The bill of lading was never assigned to any one by the plaintiff, and was always in their possession until it was delivered in court at the time of the trial of this case. The plaintiffs never gave any order for the delivery of the monument to any one; nor have they ever paid the freight for its transportation, though it was paid to the delivering railroad by some one, but by whom it did not appear.</p> <p>The plaintiffs have never received pay for the monument; nor have they ever received the monument from .the terminal railroad, unless the delivery onto the Tieman switch, was in law a delivery to them as consignees.</p> <p>It is stated in the finding of facts that there was no evidencie of any loss, misdelivery or conversion of the monument by any of the carriers unless the facts recited constitute such; and that there was no evidence of any neglect or shortage of duty on the part of the defendant unless the facts recited constitute such.</p> <p>The judgment below was for the defendant, and the plaintiffs excepted.</p>

<p>Trial — Evidence — Error — Witnesses — Competency—Opinion Evidence — Value—Preliminary Question for Trial Court.</p> <p>Where a party does not move to have evidence stricken from the record, but merely objects to its reception unless something further appears, and, after a subsequent question and answer suggested by his objection, it is stricken out by the court of its own motion, no reversible error appears.</p> <p>The law does not attempt to define the amount of knowledge a person must possess to make him a competent witness as to value, except that he must have sufficient acquaintance with the subject matter to enable him to form some estimate of its value.</p> <p>Whether a witness has sufficient acquaintance with the subject matter to make him competent to testify as to value is a preliminary question for the trial court, and its ruling thereon will not be revised unless shown to be erroneous or founded on an error of law.</p> <p>Upon the question of the value of property, any person who knows it and has an opinion of its value may give that opinion in evidence for whatever the jury may deem it worth.</p> <p>Where the question was as to" the value of the use of a building for storage purposes, held, there was sufficient evidence by way of foundation to make the competency of the witnesses to testify on this subject a question for the trial court.</p>

<p>Contract. Plea, the general issue. Heard on the report of a referee and plaintiff’s exceptions thereto, and upon plaintiff’s motion to recommit the report, in vacation after the January Term, 1917, Grand Isle County, Slack, J., presiding. Judgment overruling plaintiff’s exceptions,- and his motion to recommit, and for plaintiff to recover damages of $5.60. and costs. Plaintiff excepted. The opinion states the case.</p>

<p>Chattel Mortgages — Description of Property Mortgaged — Sufficiency — Trover—Trial—Bequests for Instructions.</p> <p>A statement of the location of the mortgaged property is not indispensable to a sufficient description in a chattel mortgage, although it will always aid in indentifying the property and may often render a mortgage, otherwise indefinite and uncertain, sufficiently certain by making the mortgage itself indicate where the property may be found on inquiry.</p> <p>In testing the sufficiency of a description in a chattel mortgage covering “one red and white cow, four years old,” it will not be assumed that the mortgagor had more than one cow of this kind; this fact being a matter of defence in impeachment of the mortgage.</p> <p>A request for a binding instruction that a description in a chattel mortgage is insufficient cannot be complied with unless this can be said as a matter of law.</p> <p>It is the well settled general rule that the description of animals in a chattel mortgage by sex, age, and color is sufficient to give the description prima facie validity; but this rule is subordinate to the rule that, as a general proposition, to be sufficient against third persons having constructive notice only, the description in a chattel mortgage must be such that the property can be identified by reference to the instrument itself, aided by such inquiries as may be indicated or directed thereby.</p> <p>In passing upon a request for a binding instruction that the description of a cow in a chattel mortgage was insufficient, it will be assumed that the cow in question was truly described.</p> <p>A description in a chattel mortgage, of a red and white cow, four years old, included among twelve cows mortgaged, JieTcl, under the circumstances, prima facie sufficient to charge a purchaser of the cow from the mortgagor with notice of the mortgage, it being presumed in aid of the description that the mortgagor was then the owner of the cows.</p> <p>In an action of trover for a cow, brought by a mortgagee against a purchaser from the mortgagor, wherein the plaintiff relied upon three mortgages, two of which were executed at a time when there was evidence that the mortgagor had parted with the property, a refusal to instruct the jury that plaintiff could not recover by virtue of any mortgage executed by the mortgagor to him after the defendant had purchased and taken possession of the cow, was error.</p> <p>A reguest to charge which presents an abstract guestion of law not applicable to the facts in issue is properly refused.</p> <p>In an action of trover, brought by a mortgagee against a purchaser from the mortgagor, for a cow described in the mortgage as a red and white cow four years old, included among twelve cows mortgaged, it was, under the circumstances, error to submit the case . to the jury on the theory that the determining issue was the identity of the cow, but the court should have charged that whether or not the mortgage was binding against the defendant depended upon the accuracy of the description, and that if the color of the cow was as described in the mortgage, the description was sufficient as against the defendant; otherwise, not.</p>

<p>Chattel Mortgages — Description of Property Mortgaged — Sufficiency.</p> <p>A description in a chattel mortgage is sufficient as against third persons if it is such that the property can be identified by reference to the instrument, aided by such inquiries as it suggests.</p> <p>The designation of an automobile in a chattel mortgage by a number on its engine, which would not ordinarily be employed for the purposes of identification, is not alone enough to nullify the notice that the mortgage would impart to third persons, for the instrument must be construed together, in view of all its parts, so that every part may be effectual.</p> <p>A description in a chattel mortgage of a Ford touring automobile, of a certain model and number, purchased by the mortgagor from the mortgagee on a certain day, then in the possession of the mortgagor and being the only automobile that he then owned, is prima facie valid against a vendee of the mortgagor.</p>

<p>Negligence —Municipal Corporations — Liability —Governmental Duties — Hydrants—Water Systems — Demurrer.</p> <p>The liability of a municipality for negligence in the construction and maintenance of water systems, lighting plants and the like, which are for its private advantage and emolument, is that of a natural person; and it is liable for the negligence of its duly authorized agent in relation thereto, by which injury is done to another, without the fault of the latter.</p> <p>A municipality is exempt from liability when injury results from the negligent .performance of a governmental duty by one authorized to perform it, though the expense of the performance is borne by the .municipality.</p> <p>On demurrer, the facts set out in the declaration are taken to be true.</p> <p>Where the acts alleged to have been done by the defendant village in the construction of a fire department and location of a hydrant, could not have been done without some kind! of an organized system, it will be presumed that they were done under its charter.</p> <p>A hydrant connected with a water main, and installed in a village street for purposes of fire protection under authority of the village charter, is not a part of the water system of the village, constructed for its benefit or emolument, but is set apart for the exclusive benefit of the public.</p> <p>It is not necessary for an act to be performed by any particular officer to give it a public or governmental character, but it is enough if the act is performed by one having legal authority so to do; and while performing it he is, by virtue thereof, a public officer.</p> <p>Where, in an action against a municipality to recover for damages caused by the negligent location of a hydrant, it does not appear who located the hydrant, it will be assumed to have been located by some one having legal authority to do so.</p> <p>Hydrants and apparatus for the extinguishment of fires in a municipality are in their nature public or governmental property, and their location a public or governmental act; and no action will lie against the municipality for negligence in their use and maintenance.</p> <p>The action of village trustees in deliberating and adjudging upon a plan of location of hydrants for fire protection is in its nature judicial, and no action lies for errors of judgment or want of foresight therein.</p>

<p>Appeal in Chancery. Heard on bill, answers of the several defendants, and facts found by the Chancellor, in vacation after the September Term, 1917, Franklin County, Stanton, Chancellor. Decree for plaintiff. Defendants appealed. The opinion states the ease.</p> <p>Where real estate is held in the name of a married woman under a deed in common form, as in this case, or other instrument not setting apart the property to her' sole and separate use, the respective rights of herself and her husband are determined by the common law, and the husband has a freehold interest therein. In re Nelson’s Will, 70 Vt. 130; Laird v. Perry et al., 74 Vt. 454; Hubbard v. Hubbard, 77 Vt. 73; Dietrich v. Hutchinson, 81 Vt. 160; Rowley v. Shepardson et ux., 83 Vt. 167; Bishop v. Readsboro Chair Mfg. Co., 85 Vt. 141.; Barrows v. Dugan’s Estate, 88 Vt. 441; Citizens Bank v. Jenkins, 91 Vt. 13.</p> <p>The possession of property so held is the sole possession of the husband. Bowen et ux. v. Amsden, 47 Vt. 569.</p> <p>P. S. 3037 does not empower a married woman to contract with respect to her property in which her husband has-marital rights. As to such property she is under the same disability as at common law. Hubbard v. Hubbard, 77 Vt. 73; Dietrich v. Hutchinson, 81 Vt. 160; Rowley v. Shepardson et ux., 83 Vt. 167; Barrotes v. Dugan’s Estate, 88 Vt. 441.</p> <p>The sole deed of the wife of such property -is void. Dietrich v. Hutchinson, 73 Vt. 134; Blondín v. Brooks, 83 Vt. 472.</p> <p>A sale on execution of any pretended interest in this property would create a cloud upon the title to the property, and equity will furnish a remedy against such' an injury, and it will do this by preventing the cloud as well as by removing it. American Digest. Vt. Repts., Vol. 3, p. 6068; Note, 8 L. R. A. p. 729; Note, 10 L. R. A. p. 293.</p> <p>A sale of lands under execution which would confer no title, and the only effect of which would be to cloud the title of others, will be enjoined. Knightstoion First National Bamk v. Deitch, 83 Ind. 133; Grover v. Webber, 72 111. 607; Tribbetts v. Fore, 70 Cal. 242; Colver v. Phelps, 130 111. 217.</p> <p>The wife’s real estate, not set to her sole and separate use has been relieved from the common law marital rights of her husband. P. S. 3041; Citizens Savings Bank & Trust Go. v. Jenkins, 91 Vt. 13; Fox v. Hatch, 14 Vt. 340; Dale v. Robinson et al., 51 Vt. 20; Barber v. Root, 10 Mass. 260; West v. Laroway, 28 Mich. 464.</p>

<p>Assumpsit. Plea, the general issue. Trial by jury at the December Term, 1917, Caledonia County, Wilson, J., presiding. At the close of the evidence both parties moved for a directed verdict, and the court thereupon directed a verdict for defendant. Plaintiff excepted. The opinion states the case.</p>

<p>Fraud — Intent to Deceive — Liability—Deceit in Sale or Exchange of Property — Measure of Damages — Trial—Motion for Verdict — Witnesses—Contradictory Statements — Jury Questions; — “Falsely and Fraudulently” — Motion to Set Aside Verdict — Discretion of Court.</p> <p>In an action for deceit, an actual motive to do injury to plaintiff is not essential, but if a false representation is made with knowledge of its falsity, the intent to deceive is presumed.</p> <p>Liability for deceit grows out of the fact that plaintiff has been misled to his prejudice, and not that defendant has profited by his wrong, and so it is not necessary to show that defendant acted from motive of personal advantage, and the fact that he actually gained nothing by the deception, but lost as much as the plaintiff, does not prevent a recovery.</p> <p>In an action for deceit in the sale or exchange of real or personal property, the damages are to be measured by the difference between the property as it is and as it would be if as represented; and this rule is applicable where defendant by misrepresentations induced plaintiff to furnish the money to buy certain land, take the title jointly with defendant, and give the latter credit for his half of the investment.</p> <p>In an action in tort for deceit, there being evidence tending to show fraud and misrepresentation on the part of defendant, the latter’s motion for a directed verdict was properly overruled.</p> <p>Where a party, in his evidence, makes contradictory statements, it is for the jury to say which of such statements they will accept.</p> <p>Where a complaint in deceit alleges that the alleged misrepresentations were falsely and fraudulently made, no express averment of an intention to deceive is’ necessary, because the terms “falsely and fraudulently”, when applied to misrepresentation inducing one to act to his injury, necessarily imply a deliberate intent to deceive.</p> <p>A motion to set aside a verdict is addressed to the discretion of the trial court, and where that discretion is neither withheld nor abused, its ruling thereon will not be revised.</p>

<p>Appeal erom Probate. Trial by jury at the Special June Term, 1917, Windsor County, Stanton, J., presiding. Verdict for contestant. Proponent excepted. The opinion states the case.</p>

<p>Assumpsit. Plea, the general issue, and set-off. Trial by the Montpelier City Court, Erwin M. Harvey, Judge. Judgment for plaintiff. Defendant excepted. The opinion states the case.</p>

<p>Book Account — Declaration—Practice Act — G. L. 7472 — Pleading- — -Specifications—Jury Trial — Demurrer—Pleadings held Insiifficient when Defect is not Pointed Out by Demurrer.</p> <p>Tbe form for a declaration in book account provided by G. L. 7472, conforms both in letter and in spirit to the requirements of the Practice Act.</p> <p>A specification may show the defendant how to plead to a complaint, but it cannot itself be pleaded to.</p> <p>In an action of book account, to recover freight charges, pleas that the plaintiff falsely represented what the proper charges were without disclosing further charges authorized by law, and that there was nothing due plaintiff from defendant and no account or dealings between the parties which were the subject of book account, are . bad because they go to the specification and not to the declaration, and do not relieve defendant from liability to account, but are matters for the consideration of the auditor after judgment to account is rendered.</p> <p>Since a defendant in an action of book account is not entitled to file an answer or plea in bar that goes to the merits of the accounting, or that, if true, depends upon the state of the accounting claimed, he is not entitled to a jury trial on the issue raised thereby.</p> <p>A demurrer admits only such matters as are well pleaded.</p> <p>The trial court and Supreme Court have the inherent power to keep unwarranted proceedings from creeping into our practice, which power it is the duty of each court to exercise, and it is consistent with the Practice Act and the Rules of Court that a plea or answer, wholly irrelevant and calculated to distort the course of the law should be held insufficient, although the demurrer thereto does not in terms point out its real character.</p>

<p>Appeal from the disallowance of plaintiffs’ claim by commissioners on the defendant estate. Plea, the general issue. Trial by court at the September Term, 1915, Chittenden County, Miles, J., presiding. Judgment, on facts' found by the court, for defendant. Plaintiffs excepted. The opinion states the case.</p>

<p>Trial — Referee’s Report — Pleadings—Amendments—Powers of Trial Coicrt — Practice Act — Plea in Offset — Amendment— Bales — Warranty—Evidence—Value—Contracts — Express Warranty — Construction—Enforcement of Right of Action for Breach of Warranty — Final Judgment.</p> <p>On hearing on a referee’s report, in which the transcript is referred to, the trial court has a right to avail itself of the transcript, and the general right to inquire dehors the record, in ascertaining whether an amendment to a plea in offset should be allowed.</p> <p>Where a claim in offset is not designated as for a breach of warranty, but is treated as such on the trial before a referee, it is not error, on hearing upon the referee’s report, to allow an amendment to the plea in offset which averred a breach of warranty.</p> <p>When a cause is referred, the pleadings are to be treated as adapted to the facts found, when no new cause of action is thereby brought in, and the formal pleadings may be treated as amended or may be actually amended before judgment.</p> <p>Under the Practice Act, as well as under the cases decided prior to its taking effect, a plea in offset in the common counts may be amended by adding thereto a count for breach of warranty, without introducing a new cause of action.</p> <p>In the absence of a showing to the contrary, the price paid for a granite monument may properly be taken as evidence of its value, if it had been as warranted, and the cost of making it as warranted is evidence tending to show how much its actual value fell short of the value of the warranted monument.</p> <p>That a contract is by way of an undertaking to comply with a written order is immaterial on the question whether such contract contains an express warranty.</p> <p>Where a contract is evidenced by a written instrument, the question whether it embodies an express warranty is one of construction for the court.</p> <p>A positive provision in a contract for the manufacture and sale of a granite monument that such monument should be sound and. free from cracks is an express warranty against specific defects.</p> <p>The breach of an express and absolute warranty contained in a contract for the manufacture and sale of an article, gives rise to a right of action which can be asserted in an independent suit by the vendee, or pleaded in offset to any action founded upon contract, brought by the vendor against him, by proving the warranty and the breach without more.</p> <p>Where the report of a referee furnishes the necessary basis for a judgment adjusting the entire controversy, no remand is required but final judgment will be rendered in Supreme Court.</p>

<p>Petition por Foreclosure of a real estate mortgage. Heard on report of a special master in vacation after the March Term, 1917,- Chittenden County, Waterman, Chancellor. Decree for plaintiff, adjudging a certain sum due from defendant Thorp as mesne profits. From an order issuing an execution against him for the amount found due, defendant Thorp asked and was granted leave to appeal. Heard in Supreme Court on plaintiff’s motion to dismiss the appeal.</p>

<p>Legislative Enactment — Intent of Legislature — Words and Phrases — “ Similar” — Foreign Corporations — Conditions and Regulations — G. L. 5623 — Foreign Insurance Companies — License Fees — Insurance Commissioner.</p> <p>The legislative history of an enactment may be referred to for aid in arriving at the intent and purpose of the Legislature as expressed in the act.</p> <p>The word “similar” has not the significance of “the same,” identical but is defined as “nearly corresponding; resembling in many respects; somewhat alike; having a general likeness.”</p> <p>In permitting foreign corporations to do business in this State, the permission may be granted under such conditions and regulations as the State may impose, not thereby affecting matters of a federal nature.</p> <p>Under G. L. 5623, providing that, if another state or country imposes upon a domestic insurance company doing business therein fees, etc., exceeding those imposed by this State upon foreign insurance companies doing business herein, an insurance company, organized under the laws of such other state or country doing business in this State shall be subject to fees, etc., similar to those imposed in such other' state, such fees, etc., so required shall correspond in amount to the fees, etc., imposed by such other state or country upon an insurance company of the same classification, incorporated in this State, doing business in such other state or country; and therefore the insurance commissioner is not authorized to collect from a foreign insurance company, not doing life insurance business, the same fees' imposed by the state under whose laws such company was organized upon a life insurance company organized under the laws of this State, the two companies not being of the same classification.</p>

<p>Implied Contract — Services Rendered — Question for the Jury— Evidence — Motion for Verdict — Appeal from Commissioners — Estate of Deceased Person — Witness—Error—Finding of Trial Court — Unanswered Question — Discretion of Trial Court.</p> <p>An implied contract to pay for services rendered must contain all the elements of an express contract and differs from the latter only in its proof, each depending upon questions of fact.</p> <p>In an action to recover upon an implied contract to pay for services, if there is any substantial evidence fairly and reasonably tending to establish such contract, the question is for the jury.</p> <p>In reviewing the denial of defendant’s motion for a directed verdict, the evidence must be viewed in the light most favorable for plaintiff.</p> <p>Where, in an appeal from commissioners on the estate of a deceased person, plaintiff’s evidence tended to show that she performed valuable services for the deceased, at the latter’s request, the question whether there was an implied promise on the part of the deceased to pay plaintiff what her services were reasonably worth, was for the jury.</p> <p>In an appeal from commissioners upon the estate of a deceased person, wherein plaintiff sought to recover upon an implied contract by deceased to pay for her services, where a witness called by plaintiff testified without objection that she had seen plaintiff go to the home of deceased, it was not error to allow the witness to say how frequently she had seen this occurrence.</p> <p>In such case, it was not error to allow the same witness, after testifying without objection that she had seen articles which the deceased.told her had been purchased for deceased by plaintiff, to say what those articles were.</p> <p>In such case, it was not error to allow a witness to testify as to the nature of purchases made by plaintiff, delivered either to plaintiff or deceased and charged to and paid for by deceased, and the frequency with which plaintiff came to the store.</p> <p>The finding of the trial court that a witness is qualified to testify as to a fair and reasonable price for services of a certain nature is not revisable, there being some evidence of qualification.</p> <p>An exception to an unanswered question is not available.</p> <p>A motion to set aside a verdict as being excessive is addressed to the sound discretion of the trial court, and -is not reviewable unless it appears that the court refused or failed to exercise its discretion or abused it.</p>

Two Petitions eor Partition against the same defendants, Windsor County. The petitions were transferred to the court of chancery. Heard on defendants’ demurrers to the amended bills in Chambers on January 12, 1918, Stanton, Chancellor. From orders overruling the demurrers and adjudging the bills sufficient, the defendants were granted leave to appeal. Heard together in Supreme Court on plaintiffs’ motions to dismiss the appeals.

<p>Appeal in Chancery. Heard on bill, answer, replication, inspection of the premises, testimony of witnesses and argument of counsel at the September Term, 1916, Washington County, Stanton, Chancellor. Decree sustaining the demurrer and dismissing the bill with costs. The plaintiff appealed. The opinion states the facts.</p>

<p>Bill in Equity brought to set aside two deeds from plainT tiffs to defendant Hersey. Heard on bill, answer, special master’s report, defendants’ exceptions thereto, motion of defendant Hersey for leave to file a cross bill, motion of defendant Hersey for an order on the receiver to pay a sum of money to him, and motion of defendants Smith for leave to file a cross bill, at the September Term, 1917, Chittenden County, Fish, Chancellor. Decree, overruling defendants’ exceptions and motions, and for the plaintiffs as hereinafter stated. The defendants appealed.</p> <p>The master reported that the plaintiff Mrs. Ford, who is a niece qf the defendant Hersey, commenced living with him at his home in the city of Barre in 1895, and 'thereafter continued to live with him and assist him in his business affairs and about the house, until she moved to Burlington, on September 1, 1914, to live there with her husband, plaintiff Harry L. Ford; that on April 6, 1904, the said Hersey, by two certain warranty deeds of that date, conveyed to her certain premises owned by him in the town of Barre and city of Barre; that the consideration for such conveyance was founded upon an oral agreement that Mrs. Ford should support and care for said Hersey in a suitable manner dúring his life time; that there was no express understanding that she should reconvey said premises to him at any time he called therefor; that after the delivery of said deeds she came into the possession of said premises and took control of the same, and on January 9, 1913, was the owner of the same.</p> <p>The master further reported that on or about January 9, 1913, Mrs. Ford was about to be confined and became fearful of the result of her illness, and, in the event of her death, desiring said premises to become the property of said Hersey, made two deeds conveying the same to him, each deed containing in the 8th and 9th lines thereof the words “not to record except at the death of the grantor”; that an agreement was then and there made by her and the said Hersey that said deeds should be kept in a certain box in her room, and should be removed therefrom, delivered and recorded only in the event of her death, and she never consented to said Hersey’s removing the deeds from said box.; that on December 2, 1914, she received a letter from defendant Hersey, who was then living in Barre, stating that he had agreed to sell some of the property in the town of Barre, covered by her • deeds, to defendants Smith; that she at once wrote Hersey protesting against this, and went to the box which had contained said deeds but did not find them there; that on December 7, 1914, said Hersey went to Burlington to live with the plaintiffs, and told them that he had fixed up the deeds so that they were as good as any deeds; that about the middle of April, 1915, Mrs. Ford found said deeds among the papers of said Hersey, and found that they had been altered by the erasure of the words in the 8th and 9th lines thereof “not to record except at the death of the grantor”, and that they had been further altered in the handwriting of said Hersey by changing the descriptions of the property conveyed .therein by striking out certain words and adding others, but such alterations did not affect the land thereby conveyed; that at some time said Hersey removed said deeds from said box where they had been placed by said Mattie H. Ford, made changes therein as above indicated, and held them until November 30, 1914, when he had them recorded in the Land Kecords of the city of Barre and town of Barre.</p> <p>The master further reported that on December 4, 1914, said Hersey sold, and by his warranty deed of that date conveyed, to the defendants Smith certain of said premises situated in the town of Barre, for the price of $1,000, which price was a fair value of said premises; that before purchasing said premises, the defendant A. T. Smith had knowledge of said alterations in the description in the deed of the premises in the town of Barre, but the master was unable to find that he had knowledge of the erasure of the words in the 8th and 9th lines of said deeds; that said sum of $1,000 was applied by the said Hersey in payment of a certain note signed by Mrs. Ford for the sum of $1,000, given by her to the Granite Savings Bank & Trust Company and then held by it, said note being secured by a mortgage executed and delivered to said bank by the plaintiffs on the premises in the city of Barre conveyed to Mrs. Ford by said Hersey, which mortgage was executed and delivered subsequent to the time when she obtained title to the said premises, and prior to the execution of the deed to said Smiths; that said note was given, and the loan of $1,000 procured from said bank, in order to aid said Hersey in publishing a book which he had written, but defendants Smith had no knowledge of the circumstances surrounding the securing of said loan or the purpose for which it was obtained; that Mrs. Ford had information from said Hersey of the proposed sale to the Smiths and wrote to him objecting to said sale, but never communicated with said Smiths in regard thereto, and made no demand upon them to reconvey said premises, and had no communication with them in regard thereto, prior to the bringing of the bill of complaint.</p> <p>The master further reported that at the time of the execution of said deeds by said Hersey to Mrs. Ford on April 6, 1904, he was engaged in considerable litigation which was extremely troublesome to him, and an attorney was pressing him for the payment of a large bill, on which he soon after brought suit.</p> <p>The allegations in the cross bill, which said Hersey asked leave to file, in substance, were, that on April 6,1904, at the time of the conveyance to Mrs. Ford, reconveyances were made by Mrs. Ford to him; that the latter became lost or stolen and that was the occasion of the conveyance of January 9, 1913; that the occasion of the deeds of April 6, 1904, was certain litigation then pending and about to be brought against him, and the object of the conveyances was to protect his property from what he considered an unjust attack, and in pursuance of the same scheme he caused suits to be brought by Mrs. Ford against him in which certain fire insurance companies were trusteed; that later suits were brought against him which were adjusted to his satisfaction and the suit of Mrs. Ford was dropped; that at that time the Fords were living with him, and had so lived after their marriage on October 20, 1899; that these and other facts were told by him to his counsel but were not embraced in the answer and were not fully brought out at the hearing before the mastef; that the failure to bring out all of these facts, and the retirement of his counsel from the cause at his request, created a prejudice and bias in the mind of the master against him so that the master did not give proper consideration to the evidence, and his report and findings were the result of such prejudice and bias; and, in addition to praying for a perfection of his title by way of cross bill, he asked to have a lien upon the real estate in question to the extent of some $7,000 advanced to the plaintiffs, in the event the court should decide that his title to the real estate was not valid, and asked for a retrial of the whole matter before the chancellor and for general relief.</p> <p>By the first two paragraphs of the decree it was ordered and decreed:</p> <p>“ (1) That the two deeds from the orators Mattie IT. Ford and Harry L. Ford to the defendant Harvey Hersey dated January 9, 1913, and recorded respectively in the Land Records of the City of Barre, in Washington County, volume 22, page 232, and in the Land Records of the Town of Barre in said County, volume 12, page 284, be and the same are hereby adjudged to be null and void and of no effect, and the same are ordered to be expunged from the respective land records of said City and Town of Barre.</p> <p>“ (2) That the deed of the defendant Hersey to the defendants A. T. and A. L. Smith dated December 4, 1914, and recorded in the Land Records of said Town of Barre in volume 12, page 285, be and the same is hereby adjudged to be null and void and of no effect and is ordered to be expunged from the Land Records of said Town of Barre, provided and on condition that the orators pay to said defendants A. T. and A. L. Smith the sum of eleven hundred ($1,10.0) dollars on or before thirty days after the date of the final decree in this case,- with interest thereon from January 1, 1918, to the date of payment.”</p> <p>This defendant should have been permitted to file his cross bill. Hathaway v. Hagcm, 64 Vt. 135; Van Dyke v. Cole, 81 Vt. 379, 392; Hyde Park Lumber Co. v. Hunt, 90 Vt. 435.</p>

<p>Appeal in Chancery, Orange County. Heard on special master’s report, and plaintiffs’ exceptions thereto, in chambers on March 8, 1917, Fish, Chancellor. Decree that the bill be dismissed with costs to the defendant. The plaintiffs appealed.</p> <p>The court will take judicial notice of the fact that Lake Morey is one the largest bodies of water in the State. Cash v. Auditor, etc.,- 7 Ind. 227; State v. Wabash Paper Co., 21 Ind. App. 167; Sudbury Meadows v. Middlesex Canal, 23 Pick. 36, 45; Talbot v. Hudson, 16 Gray, 417, 424.</p> <p>Capacity is the test in determining if waters are navigable. The Montello, 20 Wall. 430, 22 L. ed. 391; People v. Canal Appraisers, 33 N. Y. 461; Weise v. Smith, 3 Ore. 445, 8 Am. Rep. 621.</p> <p>If the situation is. such that in all probability the waters will become useful for business or pleasure, then they are public. Farnham on Waters, 127; Walker v. Allen, 72 Ala. 456; Rhodes v. Otis, 33 Ala. 578, 73 Am. Dec. 439.</p> <p>Waters navigable in fact are navigable in law,-if reasonably capable of available use as a public highway. Concord Mfg. Co. v. Robertson, 66 N. H. 125 Atl. 718; Morgan v. King, 35 N. Y. 554; Barney 'v. Keokuk, 94 U. S. 324; Cooley Cons. Lim. 726-728.</p> <p>Owners along an outlet stream, flowing from a natural pond, have nothing but the right to the natural flow. They cannot operate devices to regulate the level of the pond, but must take as nature provides. Mohr v. Gault, 10 Wis. 513, 78 Am. Dec. 687; Fernald v. Knox Woolen Co., 82 Me. 48; Potter v. Hoiue, 141 Mass. 354, 6 N. B. 233.</p>

<p>Action op Tort to recover for death of intestate caused by defect in a culvert in highway. Plea, the general issue. Trial by jury at the June Term, 1917, Caledonia County, Fish, J., presiding. Verdict for the plaintiff. The defendant excepted.</p> <p>Approaches of a bridge are whatever is necessary to connect the bridge with the public roads or streets, either at the end thereof or to make such roads or streets conform to the grade of the bridge. Tinkham v. Stochbridge, 64 Vt. 480; Chicago v. Pittsburgh, etc., R. R. Co., 247 Ill. 319; City of Bloomington v. Illinois Cent. R. Co., 49 Ill. App. 129; Daniels v. Town of Athens, 55 Ga. 609; Town of Ohio v. M. Ry. Co., 45 Ill. App. 572; Words and Phrases, Vol. 1, 466.</p> <p>The weakness of the guard rails was not an insufficiency of the drain pipe. They were a part of the dirt highway on solid ground outside of, and distinct from, the drain pipe. Castle v. Guilford, 86 Vt. 540; Fifield’s 'Admx. v. Rochester, 89 Vt. 329.</p> <p>A culvert is an arched passage or drain for water beneath a road, canal or railroad. Carroll County Commissioners v. Bcdley, 122 Ind. 46, 23 N. E. 672; Herrick v. Holland, 83 Vt. 502; Gale v. Dover, 68 N. H. 403, 44 Atl. 535; Boyd v. Derry, 68 N. H. 272, 38 Atl. 1005.</p> <p>The plaintiff is precluded from a recovery, because his intestate, although approaching a curve in the road, did not have his automobile under perfect control, as required by the statute. He was guilty of contributory negligence, as a matter of law, Rebillard v. Minn. St. P. & Ste. M. R. Co., 216 Fed. 503, 133 C. C. A. 9, L. R. A.. 1915 B, 953; Houston Belt & Terminal R. Co. v. Rucker, (Tex. Civil App.), 167 S. W. 301; Garrett v. Peoples R. Co., 6 Penn. (Del.) 29, 64 Atl. 254; Wentworth v. Waterbury, 90 Vt. 60.</p> <p>Statement by Watson, C. J. This action is brought under the statute, in the name of the personal representative of Edmund C. Morse, deceased, for the benefit of his next of kin, for damages sustained through his death in an automobile accident when traveling upon a public highway in the town of St. Johnsbury, on the 22nd day of October, 1916.</p> <p>At the close of the evidence the defendant moved for a directed verdict on grounds stated in its brief under four heads as follows: (1) The place of the accident was not a culvert, within the meaning of the law; (2) negligence on the part of the town is not shown; (3) the decedent was guilty of contributory negligence; and (4) no recovery can be had, because notice of the accident was not given as required by statute. The motion was overruled, and exception saved.</p> <p>The evidence introduced on the trial is stated below only so far as is necessary in disposing of the foregoing motion, outside of which no question is presented.</p> <p>The evidence showed, or tended to show, stated in its most favorable light to the plaintiff, the following facts: At the time of the accident Morse (the decedent), accompanied by his wife, and the Misses Alice F. Bancroft, Mand E. Wetherby, and Amelia D. Lee, was driving his automobile northerly over the public highway between St. Johnsbury Center and Lyndon, going north. This road is much traveled. The place of the accident is some five hundred feet north of the railroad crossing, known as the “Cobb Crossing.” Along there for some distance the road was constructed by a sidehill cut most of the way, removing material from the upper or west side and placing it on the lower or east side to make the fill. The evidence as to the length of the fill varied, showing it to be from 79 feet to 200 feet long. The width of the traveled portion of the road over the fill varied from 13% feet to 17 feet and 9 inches. At the culvert it was "a bad narrow place." Beneath the surface of the highway at a certain place in this fill is a culvert consisting of a tile drain, eight inches inside diameter, covered by the fill, and down four or five' feet from the top of the edge of the road. The bank there is quite steep and near six feet high on the easterly side of the road. On that side the tiling seems to be protected only by earth. On the westerly side of the road there is a high ledge which goes up to the height of 25 to 30 feet, but it does not extend .so far north as the culvert. Between the ledge and-the culvert, and extending some farther north, the ground is higher than the road and slopes towards it. At the upper end of the culvert, rocks and stones are built up to the height of two or three feet around the tiling. The drain extends diagonally across the road, and on the culvert there is a curve in the road toward the east. The culvert runs through the fill, except at the upper side of the road, and consequently no part of the fill was necessary (in constructing the road) as an approach or as approaches to the culvert, and none of it was put in for such purpose. No stream of water runs through there regularly, but the culvert is necessary in the spring of the year, and in times of rain storms, to carry off surface water. The object of the fill was to improve the grade, not to fill up to the structure of the culvert so that travelers may the better pass over it. There was a fence on the bank of the fill, made of wooden posts about four or six inches in diameter, set in the ground, and boards an inch in thickness nailed thereto. Over the culvert and along southerly from it for some distance, the posts were rotten where they went into the ground, and the boards were old, weather beaten, and rotten; and along the same place and distance the fence was down the bank about eighteen inches below the level of the road, and leaning more or less outward from the road. New filling had been put into the road, making it higher than the top of the ground where the fence posts were.</p> <p>The accident occurred on Sunday evening about 6.30 o’clock. The night was very cloudy and quite dark. The decedent was seated on the left hand side of the front seat. His wife sat beside him. The young ladies mentioned sat on the rear seat. When at the Cobb Crossing .they noticed the lights of two automobiles which were coming from the north on the other side of where the accident happened. They saw the two cars coming and spoke about them. The ear ahead was being driven by one Dudley who was accompanied by his wife; the other car was occupied and being driven by one Shepard. On the trial of this case, Dudley testified that his car met and passed the decedent’s car about thirty feet south of the culvert; that at that time both ears were running slowly because of the curve in the road; that the decedent’s car, with its lights burning, “was coming along the road very slowly,” and shortly after he passed it the' car seemed to strike the fence and at the same time rolled sidewise over the embankment; that at the time the car went over it was running extremely slow or had practically stopped; that the fence offered no resistance to the car, it broke, and the part hit by the car simply fell over the bank; that he did not think it scraped the fence before it .went over — went over about the time it struck the fence; that the lights from Shepard’s car shone directly on decedent !s car, and lighted up the road very clearly; that he did not notice the tiling (of the culvert) that night, but was there later and could pick out the place where the car landed at the bottom of the bank; that this was at about the same point as the mouth of the tile, — he found glass there evidently from the windshield of the car.</p> <p>Morse and his wife were almost instantly killed, and Miss Wetherby was so injured that she was thereafter unable to remember very much about the accident.</p> <p>Shepard, who was driving the second ear seen coming from the north, testified to seeing the accident; that at the time it occurred he was a little north of the place where it occurred and going south, facing it; that he saw the decedent’s car and Dudley’s car meet, and that about the length of a car past their meeting the lights of the decedent’s car began to tip and the car went over; that he ran down to where the car was and did what he could in helping to lift the car and get the people out from under it; that he visited the scene of the accident the next afternoon, and then examined the fence, or rather noticed a new fence there; that where the car went over the bank the dirt seemed to be soft; that he should think the car went down six feet before it stopped, and should think the tile pipe was down four or five feet from the edge of the road; that the ear went over “nearly directly on the curve.” The witness was then asked “And that is where the culvert is that you have told us about?” Answering, he said, “Yes, I think the culvert is really to the north, just at the edge where the road straightens. ’ ’ He further testified that the decedent’s car was going ahead very slowly when it tipped over; that the next afternoon when there, he “could see where the windshield was broken and where the rods stuck in the earth and the oil from the engine run out”; that this was just at the end of the drain pipe, just front of the end, and it was where the ear stopped when it went over the bank; that the car went off sidewise. In re-cross-examination the witness said, “It appeared that, it seemed to tip nearly straight, bodily, as though it had given right out under the wheels and, facing the light, it looked as though it simply tipped over."</p> <p>The witness testified to examining the tracks that afternoon. Thereon he said there was only about ten or twelve feet of track over the bank, which he considered was made by decedent’s car; that as “it broke off it made a .track of some ten or twelve feet, a little more than the length of the car”; that this track was nearly directly under the ear, a little over the length of the car, not back ten or twelve feet. Defendant’s attorney then asked the witness, “Then you really think don’t you Mr. Shepard, that that just caved right off there with him sideways?” To which the witness answered, “Yes, sir.” In answer to the question whether there was any evidence there in the tracks, of the ear sliding sidewise or otherwise, he said it did not appear to him that it slid sidewise at all; that “it simply went down there and the turf cut off and it went off.” The witness said he saw a track below post holes back 30 or 40 feet, but it was not a fresh track, and he was positive it was made at some other time — not made by the decedent’s car; that he saw tracks back not over five or six feet which could have been made by that car, just a mark as it went off the bank.</p> <p>Miss Bancroft, a school teacher and one of the young ladies mentioned as riding in decedent’s ear, testified that she sat on the right hand side of the back seat, next to the fence. On being asked what she remembered about the accident, she stated that she remembered noticing, when at the Cobb Crossing, the lights coming down the hill on the other side of where the accident occurred, and spoke about them, but did not remember anything else until they crashed over onto the fence and went down the bank, tipped.onto the fence; that she remembered hearing the crash then. She further testified that the car was going very slowly; that her head was resting on the back of the car; that she does not remember that she felt any severe jolting before the car tipped and went over; that she did not hear the ear scraping-the fence before the car tipped over, and did not know they were near a bank or anything — did not hear any cracking of boards or anything of the kind.</p> <p>Miss Lee, another of the young ladies riding on the back seat, testified that the car was going very slowly; and tipped over sideways; that the whole side of the car seemed to settle at once, and the car within a second more turned over.</p> <p>William Ahern, a man forty years old, who had always lived in the house on that road immediately north of the place of the accident, and owned,the field adjoining the highway on the east of that place, testified to helping lift up the car so to get the people out from under it after it went down the bank, and that he knew where the tile pipe was on the lower side of the road. He was then asked to tell where the car was that night with reference to this tile pipe, and answered that he should judge that the car was partly or a little more than half way north of the tile pipe, tipped over. This witness gave further evidence tending to show that the ear passed over the tile pipe in going down the bank. In cross-examination he said the car finally landed in front of the opening of the tile pipe — tipped over there. He further testified that there had always been a little culvert there, and that the tile pipe had been in about fifteen years; that the fence at the culvert was made of inch boards, and must have been there about the same number of years.</p> <p>Jack Adams, who was at the place of accident about 7 o’clock that night, testified that he looked the fence over and noticed it was old, one or two of the posts being rotted away where they went into the ground, and the boards old and rotten; that the post holes were on a slant down some 18 inches from the roadway, and the road was narrow at that place; that he saw a wheel track along the edge of the bank inside of where the post holes were; that the wheel rut went past three or four post holes before the car went over the bank; that he followed the track back, but not as far as the point of the ledge; that the track was out of the beaten track of the road, but not out of the road; that the distance between the extreme right-hand edge of the traveled track and the edge of the slope was probably a foot and a half, and the fence was below the edge of the slope about the same distance; that he examined the old fence; two or three lengths of which were down; that back southerly of the lengths that went down, he looked pretty closely to see whether there were indications of the fence having been scraped by the automobile, but found no such indications; that there came a time when the car was gradually leaving the road, and proceeding in this way (it looked to the witness as though) the right-hand wheel passed against two or three posts just before it tipped over; but there was no evidence seen by the witness indicating that the car hit the fence before it tipped over.</p> <p>E. H. Meacham was at the place of the accident between 8.30 and 9.00, the next morning. Testifying concerning the tracks supposed to have been made by the decedent’s car, he said he thought when the decedent came on top of the knoll at the point of the ledge, he turned a little and ran pretty nearly straight until he got to the culvert or pretty near the culvert, and went off "all at once”; that he did not think the decedent "run more, than the bigness of the car off from the road after it began to break.” The witness further testified that he examined the fence, but did not see any fresh marks on it southerly any distance from where the car went down; that he saw track was some out of traveled portion of highway, but not as far as the fence; that somewhere between fifty and seventy feet after left traveled portion of road, presume was out of main track three feet; that the margin where the right wheel ran was some of the way dirt and some of the way grass; did not cut in much of any, only just so could track it. Began to cut in when got almost to culvert.</p> <p>Scott S. McDowell testified to being at the place in question the same evening and shortly after the accident occurred, and to looking over the fence with a flashlight. He stated that back about three lengths from the tile the fence was level with the road, but going along within a length and a half of the tile it was hung out on the edge of the bank; that he examined the fence south of where the ear broke it down, and found one post gone, and the boards where the car went over were all decayed; that he examined the fence along back of where the car went down to see whether there were marks on it, and found the length before getting to the tile pipe slightly grazed, which was all the mark there was up fill the fence gave way; that there was a very little grass between the fence and the traveled portion of the road as one went onto the culvert, and it was on a slant by the culvert; that back from the culvert the grass was about level with the road, at the culvert it sloped down a foot and a half along a length of the fence, and possibly a little more. This witness also testified concerning automobile tracks seen by him as follows: That they had gradually gone out of the road along the bank for' (should say) two lengths and a half of fence, being as straight as a man could run; that they came along ‘1 close to the edge of the bank, and the bank simply caved away and let the car directly over, turned bottom side up.”</p>

<p>Words and Phrases — “Unavoidable Accident — Pure and Simple Accident” — Charge of the Court — Not Error to Charge Specifically on Subject Included in Charge Given — Certified Execution — When Granting of Same Will Not Be Reviewed.</p> <p>The words “unavoidable accident” and “pure and simple accident,” as applied to collisions, exclude the idea of negligence.</p> <p>Where, in an action for personal injuries received in a collision, the court instructed the jury'that if the defendant used the care and prudence of a prudent man, and therefore was not negligent, the verdict must be for him, it was not error to fail to charge specifically with reference to the law of unavoidable accident, as that subject was necessarily involved in the instructions given.</p> <p>When the evidence, if believed, entitled the plaintiff to a certified execution, this Court cannot revise the action of the trial court in awarding the same.</p>

<p>Action of Tort to recover a penalty under GL L. 4634 for failure to remove certain buildings claimed to be' within the limits of a highway. Trial by jury in the St. Albans City Court, Nathan N. Post, Judge. Verdict and judgment for the plaintiff to recover $30 and costs. The defendant excepted. The opinion states the case.</p>

<p>Petition by Olivette 0. Walker for a divorce on the ground of refusal to support, and cross petition by Grover C. Walker for a divorce on the ground of adultery. The cases were heard together at the October Term, 1917, Windsor County, Fish, J., presiding. The court dismissed the petition of Olivette C. Walker, and granted a divorce to Grover C. Walker on the ground of adultery. Olivette C. Walker excepted. The opinion states the case.</p> <p>The rule is clearly laid down that the measure of proof of adultery is a preponderance of the testimony, weighing the presumption of innocence in favor of the party accused. Lindley v. Lindley, 68 Vt. 421; Taft v. Taft, 80 Vt. 256.</p> <p>The finding of adultery as made is not conclusive, for it will appear upon examination that the whole testimony was clearly and legally insufficient to support the judgment of the court. Emerson v. Young, 18 Vt. 603. And will be set aside upon that account. Burdick v. Champlain Glass Co., 11 Vt. 19.</p> <p>If there was any evidence tending to prove adultery, its weight and sufficiency were for the trial court and cannot be revised by this Court. Taft v. Taft, 80 Vt. 256; Kelton v. Leonard, 54 Vt. 230; Thayer v. Gen. Vt. B. Co., 60 Vt. 214; Lewis V. Boby, 79 Vt. 487; Parsons v. Povrsons, 68 Vt. 95; Burdick v. Champlain Glass Co., 11 Vt. 19.</p> <p>Adultery may be proved by circumstantial evidence both in civil and criminal cases. The only general rule that can be laid down upon the subject is that the circumstances may be such as will lead the guarded discretion of a reasonable and just man to the conclusion that the alleged act was committed. Taft v. Taft, 80 Vt. 256; 2 Bishop on Marriage, Divorce and Separation, Sees. 1351, 1357; Commonivealth v. Clifford, 145 Mass. 97; Thayer v. Thayer, 101 Mass. 11, 100 Am. Dec. 110; State v. Brink and Gibbs, 68 Vt. 659.</p> <p>It has been uniformly held by this Court that amendments to pleadings are within the discretion of the trial court, and a case will not be reversed on account of the ruling of the trial court unless there has been a manifest abuse of discretion. Chase v. Watson, 75 Vt. 385; Lamoille County National Bank v. Hunt, 72 Vt. 357; Burton v. Burton, 58 Vt. 414; Bent v. Bent, 43 Vt. 42.</p>

<p>Criminal Law — Refusal of Instructions — New Trial — Qualification of Juror — Betting on Result of Trial.</p> <p>In a criminal prosecution, where there was evidence upon which the jury could find the respondent guilty, although the evidence as to who committed the crime was conflicting and circumstantial, a motion by the respondent for a directed verdict was properly overruled.</p> <p>An exception will not lie to remarks made in argument by counsel for the State which, taken by themselves, appear unwarranted and unfair, where the court treated them as made in reply to statements of respondent’s counsel, and where prejudicial error is not shown by the bill of exceptions which is made, controlling on that question.</p> <p>An exception will not lie to the failure of the court to comply in terms with requests to charge, where the court in its own way charged substantially in accordance with the requests.</p> <p>On a petition for a new trial in a prosecution where respondent was convicted of manslaughter, on the ground of the disqualification of. a juror, where it is found that before the trial a juror who sat on the case wagered the cigars that the respondent would be convicted, a new trial will be granted without inquiring whether or not the result of the trial was in any measure affected thereby.</p> <p>In such case, the amount of the wager is immaterial, the only question at stake being the due administration of justice.</p>

<p>Original Petition for an unrestricted new trial, on the ground of newly discovered evidence, in the case of R. N. Baldwin v. J. E. Gaines, in which there was a judgment for the plaintiff in the court below, and which judgment was affirmed by the Supreme Court on the question of liability, and reversed as to damages. 92 Vt. 61. The opinion states the case.</p>

<p>Railroads — Cr. L. 5195 — Fences—Gates Therein — Proof of Negligence — Stock on Track — Question for Jury — Keeping Gate Closed — Supplemental Instructions — Exceptions.</p> <p>Where the evidence is equally consistent with the existence or nonexistence of liability by the defendant, it is error to submit that question to the jury.</p> <p>In an action for damages for colts killed on the defendant’s railroad, that had escaped through a gate in a fence which the defendant, under P. S. 4453 (G. L. 5195), was bound to maintain for the plaintiffs, the question whether a loose hook on the gate, which might be displaced by the switch of a tail or rubbing of a nose, was the proximate cause of the gate being open and the colts escaping, was, under the circumstances, for the jury.</p> <p>Evidence that persons were seen near a gate has no tendency to show that they used it.</p> <p>It is error to submit to the jury a basis of recovery not alleged in the declaration.</p> <p>Under G. L. 5195, making it the duty of a railroad to maintain a sufficient fence, it is the duty of the land owner, for whom the fence is maintained] to keep a gate therein closed; and it was error for the court to charge the jury that the defendant’s failure to keep the gate closed would amount to a failure to maintain a sufficient fence at that point.</p> <p>The fact that such a gate was found open is not enough to impute negligence to, of establish liability on the part of, the railroad company.</p> <p>When a supplemental instruction is given on a point excepted to in the original charge, the exception must be renewed or the supplemental instruction will be regarded as satisfactory, and the error, if any, cured.</p> <p>When a supplemental instruction is merely a reiteration of the point excepted to in the original charge, the excepting party is entitled to the benefit of his original exception, although he failed in his attempt to renew it.</p>

Barron of a claim presented by Mary A. Freeman. Declaration, assumpsit on a note. Plea, the general issue with notice denying the execution of the note. Trial by jury at the December Term, 1915, Bennington County, Butter, J., presiding. Verdict and judgment for the claimant. The estate excepted.

Kelley of a claim presented by Fitzgerald Brothers Brewing Co. Declaration, contract on the common counts. Plea, the general issue. Trial by jury at the September Term, 1916, Rutland County, Butler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

<p>Indictment for Murder. Plea, not guilty. Trial by jury at the June Term, 1917, Orange County, Butter, J., presiding. Verdict, not guilty. The State seasonably objected and excepted to certain rulings of the court in the admission of evidence, to certain rulings of the court in the exclusion of evidence, and to certain statements made by respondent’s counsel in argument to the jury, which exceptions were allowed and the case passed to the Supreme Court before final judgment. The respondent seasonably objected and excepted to the allowance of any exceptions by the State to rulings of the court, on the ground that the law allowing exceptions in the trial of criminal causes by the State is unconstitutional and void. The respondent, after verdict, moved for judgment upon the verdict of not guilty, and excepted to the refusal of the court to render a judgment upon the verdict. The opinion states the other facts in the case.</p> <p>It is well settled that, by the common law, a person could not be twice put in jeopardy for the same offence. Fix v. Ohio, 5 How. 410; Ex parte Bornee, 58 L. R. A. (N. S.) 1093; People v. Webb, 38 Cal. 467; United States v. Sanger, 144 U. S. 310; People ex rel. Hodson v. Miner (Ill.) 19 L. R. A. 342; Mitchell v. State, 42 Ohio St. 383; State v. Van Horton, 26 Iowa 402; Commonwealth v. Fitzpatrick, 121 Pa. St. 109; Whitten v. State, 61 Miss. 717; Whitmore v. State, 43 Ark. 271; State v. Anderson, 3 Smedes & M. 751; Robinson v. Gommomuealth, 88 Kentucky 386; State v. Rook, 61 Kan. 382; Pizano v. State, 20 Texas App. 139; State v. Webb, 48 Cal. 323; State v. Benham, 7 Conn. 414.</p> <p>That the common law was in force and became a part of the Constitution of Vermont has been recognized by this Court. State v. Hobbs & Strong, 2 Tyler 380; Spalding v. Preston, 21 Vt. 9; State v. Conlin, 27 Vt. 318; LeBarron v. LeBarron, 35 Vt. 364; State v. Peterson, 41 Vt. 504; State v. Phair, 48 Vt. 366; Quinn v. Halbert, 52 Vt. 353; In re Marron, 60 Vt. 199; State v. Burpee, 65 Vt. 1, p. 11; State v. Hodgson, 66 Vt. 134; State v. Dyer, 67 Vt. 690; State v. Brewster, 70 Vt. 341; State v. LaForrest, 71 Vt. 311; State v. Slamon, 73 Vt. 212; State v. Stimpson, 78 Vt. 124; Clement v. Graham, 78 Vt. 290; In re Lydia Ann Allen, 82 Vt. 365.</p> <p>This Court has recognized that this principal of no second jeopardy was, at least, a part of the “law of the land,” and has always enforced it whenever called upon to do so. If this Court has not said in so many words that this principle was embodied in our Constitution, it is because it has never been questioned before. Whenever the plea has been made, and the court has found, that a person had been either acquitted or convicted of the same offence, it has enforced the principle and discharged the respondent. State v. Damon, 2 Tyler 387; State v. Smith, 43 Vt. 324; State v. Whipple, 57 Vt. 637; State v. Burpee, 65 Vt. 1; State v. Bradley, 67 Vt. 465; Slate v. Emery, 68 Vt. 109; State v. Bruce, 68 Vt. 183.</p> <p>Where the trial proceeds to a verdict, either of guilty or not guilty, then the respondent has been in jeopardy and the rule applies that he cannot be placed in jeopardy a second time, without his consent or some act on his part. State v. Emery, 59 Vt. 84; State v. Champean, 52 Vt. 313; State v. Whipple, 57 Vt. 637; State v. Bradley, 67 Vt. 465; State v. Damon, 2 Tyler 387; State v. Lochlin, 59 Vt. 654; Commonwealth v. Murphy, 174 Mass. 369; Mitchell v. Stale, 42 Ohio St. 383; Commonwealth v. Fitzpatrick, 121 Pa. St. 109; Whitten v. State, 61 Miss. 717; Whitmore v. State, 43 Ark. 271; Bobinson v. Commonwealth, 88 Ky. 386; Fizano v. State, 20 Texas App. 139; The People v. Webb, 38 Cal. 467; State v. Webb, 48 Cal. 323.</p>

<p>Appeal from the decision of commissioners disallowing the the claim of Rosa A. Stockwell presented against the estate of Thomas E. Stockwell. Declaration, general assumpsit. Pleas, the general issue, payment, and the statute of limitations. Trial by. court at the September Term, 1916, Windham County, Slack, J., presiding. Judgment for the plaintiff for a part of her claim.. The plaintiff excepted. The opinion states the case.</p> <p>So far as the indebtedness from the decedent to the plaintiff before marriage is concerned, the marriage of the parties did not extinguish it, and she retained all her rights in respect of it, except the right to sue on it in her own name. G. L. 3521, 3524; Spencer v. Stockwell, 76 Vt. 176; Wright v. Burroughs, 61 Vt. 390.</p> <p>As to the indebtedness which accrued after the marriage of the parties, it cannot be doubted that during the lifetime of Thomas B. Stockwell it constituted a valid claim in favor of the plaintiff, though perhaps enforceable only in equity. Bullard v. Goodno, 73 Vt. 88; Hacket v. Moxley, 65 Vt. 71; Barron v. Barron, 24 Vt. 375.</p> <p>The commissioners on Mr. Stockwell’s estate had jurisdiction to receive and adjudicate all claims which during his lifetime, because of the marriage relation, could not have been enforced directly by an action against him, brought by his wife. Metcalf v. Metcalf’s Est., 89 Vt. 63; Downs’ Admr. v. Downs’ Exr., 75 Vt. 383; Atkins’ Est. v. Atkins’ Est., 69 Vt. 270; Spaulding v. Warner’s Est., 52 Vt. 29; Holdridge v. Holdridge’s Est., 53 Vt. 546.</p> <p>The court has not found that the deceased received any of the plaintiff’s sole and separate estate, and the defendant contends that where the origin of the claimant’s title is purely equitable, the probate court is without jurisdiction, and hence the county court on appeal is without jurisdiction. Leonard v. Leonard, 67 Vt. 318; Re Parson’s Est., 64 Vt. 193; Hodges, Admr. v. Hodges' Est., 90 Vt. 214.</p> <p>In the absence of any statute expressly providing otherwise, it is usually held that the payment or loan of money is not properly the subject of a book charge; that the person paying or loaning money has it in his power to perpetuate evidence of that fact by taking a receipt or note, and that hence there can be no necessity of his resorting to his books to prove the fact in question. Reeve v. Whitemore, 2 Drew and S. 446; Parris v. Bellows, 52 Vt. 351; Miller v. French, 1 Aik. 99; Maine v. Hanper, 4 Allen (Mass.) 115.</p> <p>A pass book upon which a party entered at the time memoranda of certain payments made by him upon a note which he owed is not admissible as independent evidence by itself to prove such payment. But it may be referred to by such party, when a witness, for the purpose of refreshing his recollection of the fact. Lapham v. Kelly, 35 Vt. 195; Barber v. Bennett, 62 Vt. 50; Bates v. Sabin, 64 Vt. 511; Hunter v. Kittredge’s Est., 41 Vt. 359; Pingree v. Johnson, 69 Vt. 225; Parris v. Bellows’ Est., 52 Vt. 351; Briggs v. Georgia, 15 Vt. 61; Burnham v. Adams, 5 Vt. 313; Jaquith Co. v. Shumway’s Est., 80 Vt. 557.</p>

<p>Information in three counts charging the respondent of unlawfully advertising and holding himself out to the public as a physician and surgeon under P. S. 5370, 5371, and amendments thereof. At the September Term, 1917, Chittenden County, Fish, J., presiding, the respondent demurred to the information. To the overruling of the demurrer, and the court’s refusal to pass the case to the Supreme Court before trial on the merits, the respondent excepted. The respondent then entered a plea of not guilty, and there was a trial by jury. Verdict, guilty; and judgment thereon. The respondent excepted.</p> <p>The substantial allegations in the three counts of the information are similar. The first count, after alleging that the respondent was not licensed to practice osteopathy, medicine, or surgery in Vermont, and was not a person excepted from the provisions of the statute, alleges that the respondent, at Burlington in the county of Chittenden, on January 29, 1917, did then and there advertise himself and hold himself out to the public as a physician and surgeon and therein circulated among the people and inhabitants and made public in said Burlington and in divers and many other towns, places and localities in said county of Chittenden, an advertisement or advertisements reading and appearing in manner and form as follows:</p> <p>"CHIROPRACTIC</p> <p>(Ki-ro-prak-tik)</p> <p>Spinal Analysis Chart</p> <p>You need not be Sick</p> <p>Chiropractic Adjusts</p> <p>The Cause of Disease.”</p> <p>and also an advertisement and advertisements reading and appearing in manner and form as follows:</p> <p>“What is Chiropractic?</p> <p>(Ki-ro-prak-tik)</p> <p>It is nof Medicine; Not Surgery;</p> <p>Not Osteopathy</p> <p>It Deals directly with the Cause of-111 Health</p> <p>“ It is a scientific method of adjusting the cause of ‘ disease ’ without drugs or instruments, based on correct knowledge of anatomy, especially the nervous system. The Chiropractic idea is that the cause of so-called ‘disease’ is in the person afflicted, and the adjustment in overcoming that cause. The function of every organ in the body is controlled by mental impulses from the brain, which it transmits over the nerves. Any impingement of these nerves interfering with the transmission of mental impulses results in an abnormal function commonly called ‘ disease. ’ This interference is produced by subluxated vertebrae pressing upon the nerves as they pass out from the spinal cord. The trained adjuster locates the obstruction or interference, and by means of adjusting the subluxated vertebrae overcomes the cause, and normal condition or health is the result.</p> <p>“Investigation costs nothing, and means health and happiness.</p> <p>Frank C. Kaatz</p> <p>Chiropractor</p> <p>Hours: 3 to 5 p. m. Evenings.</p> <p>Monday, Wednesday and Friday, 7 to 8</p> <p>Suite 7, Y, M. C. A. Building.</p> <p>Phone 824-R.</p> <p>Burlington, Vt.”</p> <p>and also did then and there in said Burlington and in divers and many other towns, places and localities in said county of Chittenden, circulate among the people and inhabitants thereof and make public other pamphlets, papers, reading matter and literature advertising himself to the public as such physician and surgeon and also did cause a sign to be displayed, exposed ánd maintained on the outside of -the building in which his office was then and there located in said Burlington, reading and appearing in manner and form as follows:</p> <p>“Office of F. C. Kaatz, D. C.</p> <p>Chiropractor</p> <p>Hours 3-5.”</p> <p>and also caused a sign to be displayed, exposed and maintained on the outside of the door of his office then and there in said Burlington, reading and appearing in manner and form as follows:</p> <p>“Office of F. C. Kaatz, D. C.</p> <p>Chiropractor</p> <p>Hours 3-5.”</p> <p>thereby intending to imply and designate himself to the public as being a person to locate the cause of disease, to cure disease and the cause of disease by the “laying on of hands” in the use of, by and through the means of the system or method called “Chiropractic,” contrary to the form, force and effect of the statute in such case made and provided and against the peace and dignity of the state.</p>

<p>Action op Contract on a land contract. Plea, the general issue. Trial by jury at the March Term, 1917, Orleans County, Fish, J., presiding. At the close of all the evidence both parties moved for a directed verdict, and the court directed a verdict for the plaintiffs. The defendant excepted. The opinion states the case.</p> <p>In executory contracts for the sale of land where there is a breach by the vendee, the vendor is not entitled to recover the amount of the purchase money as damages, but his damage is the difference between the price he was to receive and the value of the land left on his hands. Laird v. Pirn, 7 M. & W. 474, 478; Telfener v. Russ, 145 U. S. 522; Sawyer v. McIntyre, 18 Vt. 27; Old Colony R. R. v. Evans, 6 Gray (Mass.) 25, 66 Am. Dec. 394; Griswold v. Sabin, 51 N. H. 167, 12 Am. Rep. 76.</p> <p>If the purpose of the new count was to enable the plaintiffs to recover for the breach of an executory contract, it was error to allow the plaintiffs to amend their declaration in this respect, as it stated a new cause of action. Brodek & Co. v. Hirschfield, 57 Vt. 12; Estabrooks v. Fidelity Mut. Fire Ins. Co., 74 Vt. 202; Derosia v. Ferland, 83 Vt. 372.</p> <p>The general rule is that a married woman’s common-law disability to contract still exists, except as it has been expressly removed by statute. 13 R. C. L. 1268; Bing v. Burl, 17 Mich. 465, 97 Am. Dec. 200; Harvard Pub. Co. v. Benjamin, 84 Md. 333, 57 Am. St. Rep. 402; Boop v. Real Estate Investment Co., 132 Pa. 496, 7 L. R. A. 211; Bank of Commerce v. Bowers, 14 Idaho 75, 17 L. R. A. (N. S.) 676; Haas v. Shaw, 91 Ind. 384, 46 Am. Rep. 607; Lord v. Parker, 3 Allen 127.</p> <p>Where both parties moved for a directed verdict, and the court granted the motion of one party, unless it affirmatively appears that neither party wished to go to the jury, the case stands before this Court the same as though the prevailing motion for a verdict was the only one presented to the court below. Fitzsimmons v. Richardson, 86 Vt. 229; Woodsville, etc., Bank v. Rogers, 82 Vt. 468.</p> <p>And, if there is any evidence tending fairly and reasonably to support the claim of the other party, the case must be reversed. Latremouille v. Bennington & Rutland Ry. Co., 63 Vt. 336; Lindsay v. Lindsay, 11 Vt. 621; Noyes v. Rockwood, 56 Vt. 347; Bass v. Bublee, 76 Vt. 395; Breese v. McCann, 52 Vt. 498; Smith v. Town of Franklin, 61 Vt. 385; Manley v. Delaware & Hudson Canal Co., 69 Vt. 101; Empire State Cattle Co. v. Atchison, etc., R. Co., 210 U. S. 1, 52 L. ed. 931.</p> <p>Where evidence is given tending to prove a material fact, it is error for the court to adjudge it insufficient, and direct a verdict. Jones v. Booth, 10 Vt. 268; Fairbanks v. Nelson, 56 Vt. 657.</p> <p>Since the defendant’s husband was away from home and she was in charge of his affairs so far as she could look after them, and since the subject-matter of the transaction was all his, and since she and Reirden were in constant communication with him concerning the same, the presumption is that, in what she did, she was acting as agent for her husband. Felker v. Emerson, 16 Vt. 653; Meader v. Page, 39 Vt. 306; Brown v. Woodward, 75 Conn. 254, 53 Atl. 112; Benjamin v. Benjamin, 15 Conn. 347, 39 Am. Dec. 385.</p> <p>If, when the defendant executed the contract, the plaintiffs knew she was acting as agent for her husband, and the contract was within the scope of her authority, she is not liable although the contract was made in her name. Roberts v. Button, 14 Vt. 195; Ball v. Buntoon, 17 Vt. 244; Abbott v. Cobb, 17 Vt. 593; Alexander v. Bank of Rutland, 24 Vt. 222; London v. Proctor, 39 Vt. 78; Johnson v. Gate, 77 Vt. 218.</p>

<p>Conspiracy — Harmless Error — Limiting Evidence — Excluding Evidence — Fraud—Actiondb le Fraud — Misrepresentations not Actionable — Connection with Damage — Whether. Expression of Opinion or Assertion of Fact for Jury — Caveat Emptor — Evidence—Damage—Jury Question — Principal and Agent — Interest of Agent — Principal Liable for Agent’s Fraud — Respondeat Superior—Corporation Officer not Liable for Agent’s Fraud — Immaterial Evidence — Ground not Claimed Below not Considered — Defence—Evidence of Property Owned — Instructions—Not Misleading — Requests —Property Refused — Element Omitted from Request — Request as to Matter not in Issue.</p> <p>In a buyer’s action for fraud in the sale of manufacturing rights in a patented vending machine, in which the defendants were charged with a conspiracy to defraud him, the question of a conspiracy was important only as it gave character to the individual acts of the defendants, and charged all with the legal consequences of such acts.</p> <p>Limiting certain of plaintiff’s evidence to one defendant only was harmless error, where similar evidence had already been received without objection or limitation, and the jury found in fayor of the other defendants on the claim of conspiracy.</p> <p>It was harmless to exclude a question asked one of the defendants on cross-examination as to his knowledge of a certain fact when, in further cross-examination, it inferentially appeared that he had no knowledge of such fact.</p> <p>To constitute “actionable fraud” in the sale of property by false representations, the representations must be of existing facts relating to the subject-matter of the contract and affecting its essence and . substance, made as inducement, false to the maker’s knowledge when made, or made of his own knowledge without knowing them to be true, not known to the purchaser to be false, and relied upon by him to his damage.</p> <p>In a buyer’s action for fraud in the sale of the manufacturing rights of a patented vending machine, wherein the seller’s salesman was to have a half interest which was paid for by his commission on the sale, of which fact the plaintiff was ignorant, the salesman’s representations to the plaintiff that he had the means to pay for a half interest in the rights and would pay cash for the same, were not actionable, because they did not relate to the subject-matter of the contract, and there was no casual connection-between them and the damages claimed to have been suffered.</p> <p>It appearing that the vending machine had a structural defect which materiallly affected its value, the question whether a representation that the machine was perfect and the best of its kind in existence, was an expression of opinion or an assertion of fact, was for the jury.</p> <p>The essential elements of fraud having been established, the rule of caveat emptor did not apply.</p> <p>Evidence that the plaintiff had the opportunity, which was exercised, to examine the machine and its operation bore only upon the question whether he relied upon the false representations and was deceived thereby.</p> <p>The plaintiff disposed of the manufacturing rights to a corporation at a profit by taking stock. in payment, and there was evidence that the corporation became bankrupt because the rights were valueless. Held, that whether the alleged fraud resulted in damage to the plaintiff was a jury question.</p> <p>Every agency is subject, as matter of law, to the legal limitation that it cannot be used for the benefit of the agent himself, or of any person other than the principal, in the absence of an agreement that it may be so used.</p> <p>There being evidence that the selling corporation, with knowledge that its salesman was personally interested in the sale of the rights, authorized him to act as its agent in the negotiations with the plaintiff, the question of its liability for the false representations of its salesman was properly submitted to the jury.</p> <p>There being no evidence to connect the president of the selling corporation with its salesman’s fraud, he was not liable under the doctrine of respondeat superior; the salesman not acting as his agent.</p> <p>The admission of evidence on cross-examination of the corporation’s president, objected to as immaterial, that, at the time the contract for the sale of the rights was executed, the corporation’s book containing the record of its director’s vote to pay the salesman a commission for the sale of rights, was in the company’s safe, and that, so far as the witness knew, the plaintiff knew nothing of the record, and that it was not called to his attention, was harmless because the record was later admitted in evidence without objection.</p> <p>The admissibility of excluded evidence on a ground not claimed below;, will not be considered.</p> <p>Evidence that the machine in question was as perfect or more perfect than the other machines on the market used for a like purpose, was properly excluded; it being no defence that the machine was not more defective than like machines.</p> <p>Evidence of the amount of property owned by the salesman at the time of the sale of the rights was admissible under the allegation that he represented that he had sufficient means to purchase one-half of the rights.</p> <p>An instruction that the jury “will inquire whether there is any evidence tending to show conspiracy or fraud,” and another, referring to certain evidence, “does that evidence tend to show fraud and conspiracy?”' when considered with the rest of the charge, would not mislead the jury to believe that it was only necessary for them to find evidence tending to show fraud or conspiracy, to find a plaintiff’s verdict.</p> <p>A request for an instruction that no misrepresentation is fraudulent unless made with the knowledge of its falsity, and such knowledge cannot be presumed from the mere falsity of the representation, was properly refused because it ignored false representations made as of one’s knowledge without in fact knowing them to be true.</p> <p>A request for an instruction as to a ground of recovery not claimed by the plaintiff was properly refused.</p>