Volume 95 — Vermont Reports

<p>Petition to tbe Supreme Court for Washington County for a writ of mandamus to compel the respondents, who are the members of the State Board of Veterinary Begistration and Examination, to register the relator as a licensed veterinarian; and heard upon the pleadings and testimony taken. The opinion states the case.</p>

<p>Action of Tort for the alleged conversion by the defendant of a carload of box shooks. Plea, the general issue. Trial by jury at the September Term, 1920, Chittenden County, Butler, J., presiding. At the close of all the evidence the Court directed a verdict for the plaintiff. .Judgment on the verdict. The defendant excepted. The opinion states the case.</p>

<p>Appeal from the probate court for tbe District of Chittenden on allowance of the will of Effie E. P. Wells, contested on the grounds of lack of testamentary capacity and undue influence. Trial by jury at the March Term, 1920, Chittenden County, Fish, J., presiding. Verdict for proponents sustaining the will. Judgment on the verdict. The contestants excepted. The opinion states the case. .</p>

<p>Exemplary Damages Against a Corporation — Malicious Prosecution of Civil Suit — Exemplary Damages May Be Awarded— Malice That Will Support Action for — Actual Malice Necessary for Exemplary Damages — Error Rendered Immaterial by Verdict.</p> <p>1. Where the malicious and unlawful purpose relied upon as a predicate for awarding exemplary damages against a defendant corporation is that of one who was acting as the mere servant or agent of the corporation, it does not affect the corporation unless it directed the act complained of, participated in it, or subsequently ratified it; but where the malicious and unlawful purpose is that of the governing officers o’f the corporation, or one lawfully exercising their authority, it is liable therefor.</p> <p>2. Exemplary damages may, upon proper showing, be awarded in actions for malicious prosecution of civil suits.</p> <p>3. The malice that will support an action for the malicious prosecution of a civil suit is sufficiently established if the baseless suit was instituted from any improper and wrongful motive, and it may be inferred from the want of probable cause.</p> <p>4. The malice essential to an award of exemplary damages cannot be inferred, being actual and not implied, and must be shown by evidence addressed especially to tlie question, and may be established by conduct manifesting personal ill will, or carried o.ut under circumstances of insult or oppression, or even by conduct manifesting a .reckless and wanton disregard of the plaintiff’s rights.</p> <p>5. The acts of defendant bank in maliciously prosecuting a civil suit against plaintiff administrator between the date of the death of his decedent and the discontinuance of the suit by the bank, did not constitute sufficient evidence of actual malice to warrant an award of exemplary damages.</p> <p>6. A judgment will not ^be reversed for an error, as in the exclusion of evidence, that was rendered immaterial by the verdict.</p>

<p>Action ok Contract. Pleas, the general issue and payment. Trial by Court at the September Term, 1918, Washington County, Stanton, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case.</p>

<p>Specifications — Amendment at Trial — Prejudice to Defendant— Diligence to Avoid Prejudice — Limiting Cross-examination —Qualification of Expert for Court — Admissibility of Letter not Before Court not Considered — Exclusion of Question Broader Than Issue — Set-off—Muhoality of Demands — Set-off of Joint Debt Against Survivor of Joint Debtors — G. L. 2086 Applies to Hearings Before Court.</p> <p>1. A specification may be amended, even at the trial, by leave of the court, unless the defendant would be prejudiced thereby on account of surprise.</p> <p>2. In such case, the disadvantage or prejudice arising from the amendment, and not the fact that the defendant is taken by surprise, is the important thing.</p> <p>3. Where a defendant did not use proper diligence to save himself from prejudice arising from an amendment to plaintiff’s specification at the trial, an exception to the court’s allowance of the amendment will not be sustained.</p> <p>4. It is not error to restrict the cross-examination of a witness, where it cannot be said that the right of cross-examination, itself, was impaired by the action of the court.</p> <p>5. The qualification of a witness as an expert is ordinarily a preliminary question for the trial court and not reviewable; and the trial court’s refusal to find that a witness was an expert will not be reviewed when it cannot be said as matter of law that the witness was an expert.</p> <p>6. Where a letter objected to on the ground that it was unsigned and incompetent is not before the Supreme Court, it cannot be said that it was error to receive it in evidence.</p> <p>7. Exclusion of evidence as to the value of property delivered, which was too broad because covering time a part of which was not in issue, was not error.</p> <p>8. Although the rule that mutuality of demands is essential to the right of set-off precludes the setting off of a several debt against a joint one, yet, where one of two joint debtors dies and the obligation survives against the other, ^the debt may be set-off in an action against the survivor.</p> <p>9. Although G. L. 1809 prohibits a claim as an offset unless it was due and payable when the writ was served, an amount found due defendant under a settlement with plaintiff and his wife before the writ was served may. be set-off by defendant against the plaintiff after the death of plaintiff’s wife, although it did not appear whether she died before or after the writ was served, as the defendant’s debt became due and payable at the time of settlement.</p> <p>10. The provisions of G. L. 2086, that, notwithstanding the judgment to account, any defence may be made before the auditor that might have been answered in bar of the action, apply to hearings before the court as well as to hearings before an auditor.</p> <p>11. Evidence, on an accounting, that the contract, under which plaintiff carried on a farm, required defendant to pay the expenses and that any profit was to be equally divided between them, and that the operation resulted in a loss, was sufficient to sustain the court’s finding that there was nothing due the defendant.</p>

<p>Evidence — Authority of Agent — Presumption in Support of Ruling Beloiv — Parol Evidence Affecting Written Contract— Exclusion of Evidence not Error in Absence of Offer — Direction of Verdict not Reviewable in Absence of Transcript.</p> <p>1. In an action on a written contract whereby defendants sold certain timber to plaintiffs and agreed to cut and deliver the same, evidence that plaintiffs told defendants that T., who was to mill the lumber, would pick out the place for setting the mill and would let them know when he was ready to saw, was insufficient to establish T.’s agency to direct defendants • to cease cutting hardwood under their contract.</p> <p>2. In support of the ruling below, the Court will make every presumption in its favor which is not positively inconsistent with the record.</p> <p>3. Where the evidence stated in the exceptions was insufficient to show the authority of an agent, and the exceptions did not show that other evidence of agency was not introduced, the Court, to sustain the ruling below, assumed that the transcript, if before it, would have supplied sufficient evidence of that fact.</p> <p>4. The terms of the written contract being clear and unambiguous, evidence that, at the time it was executed, the parties understood that the reason the plaintiffs bought the lumber was the defendants’ agreement to cut and deliver it, was immaterial, and properly excluded.</p> <p>5. Error did not appear in the exclusion of “the circumstances and conditions under which the contract was surrounded,” in the absence of a statement of whait they were, or how they affected the contract or its meaning.</p> <p>6. The direction of a verdict will not be considered in the absence of the transcript.</p>

<p>Irregular Service on Nonresident after Valid Attachment not Ground for Dismissal of Action — Motion to Dismiss Confined to Record — Presumption that Continuances of Case Were Granted for Good Cause — Motion to Dismiss for Want of Prosecution Addressed to Court’s Discretion — Refusal to Dismiss Case After Delay of Five Years not Atuse of Discretion.</p> <p>1. In an action against a nonresident defendant whose real estate was attached by admittedly valid process, irregular or defective service on the defendant would not entitle him to a dismissal of the action, but a new notice could be issued and served.</p> <p>2. The effect of a motion to dismiss is confined to what appears on the face of the record.</p> <p>3. The presumption of regularity, which applies to all the proceedings in a case, requires the presumption, the contrary not appearing, that the continuances of a case from term to term for five years were granted on good cause therefor being shown.</p> <p>4. In such case, a motion .to dismiss can be given effect only as a motion to dismiss for want of prosecution, which is addressed to the discretion of the court, and is reviewable only when abuse of discretion is shown.</p> <p>5. While allowing a case to slumber on the docket for five years indicates a lack of diligence warranting its dismissal, there is no hard and fast rule governing such matters, and the denial of a motion to dismiss cannot be held an abuse of discretion in the absence of the explanation for the delay.</p>

Kelley, her husband, who was accidentally killed while cutting logs for the Hoosac Lumber Company. The opinion states the case.

Appeal by the plaintiffs from the order of the Commissioner of Industries disallowing their claim for compensation under the Workmen’s Compensation Act as dependents of E. N. Lowell, who died from injuries received, it was claimed, while in the employment of the' defendant. The opinion states the ease.

<p>Trespass — Title Question for Jury.</p> <p>In an action to recover damages for cutting and removing sugar, maples from a part of plaintiff’s farm, held, that in view of the evidence, the trial court did not err in submitting to the jury the' question whether maple trees standing on another part of the farm and those on the part involved, separated by a sixty-rod strip ' owned by another party, constituted a single sugar orchard or two. orchards.</p>

Motion to dismiss the exceptions taken by the defendant from the rendition of a judgment for the plaintiff in the Brattleboro municipal court. The opinion states the case.

<p>Action ok Tort for negligence. Plea, the general issue'. Trial by jury at tbe September Term, 1918, Windham County, Buüer, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the ease.</p>

<p>Statutes — Effect Must Be Given to All Provisions — Workmen’s Compensation Act — Claim for Compensation Essential to Jurisdiction of Commissioner of Industries — Jurisdiction Cannot Be Affected by Consent Nor Waived by Acts of Estoppel — Payment of Medical Expenses not Voluntary ■ Payment of Compensation — Notice of Injury and Claim for Compensation Distinguished.</p> <p>1. In construing a statute, effect must be given to' all its provisions.</p> <p>2. Unless an injured employee makes claim for compensation within six months after the date of the injury unless excused by voluntary .payments of compensation, as required by the Workmen’s Compensation Act (G. L. 5796), the Commissioner of Industries has no jurisdiction in the matter.</p> <p>3. The necessity of .making such claim for compensation was not waived by the defendants by offers of settlement’made during the six months following the accident, by the payment of claimant’s medical expenses for, the first fourteen days of disability, nor by an admission by defendant insurance company made more than six months after the accident that it was liable for compensation, as the jurisdiction of the commissioner cannot be enlarged, diminished, or destroyed by express consent, or waived 'by acts of estoppel.</p> <p>4. Payment of an injured employee’s me.dical expenses during the first fourteen days of his disability, being required by G. L. 5784, do not constitute “payments of compensation * * * made voluntarily,” within the meaning of G. L. 5796.</p> <p>5. While the notice of injury and the claim for compensation by an injured employee may be combined (G. L. 5797), they are in effect separate and distinct documents, intended to serve different and independent purposes; and the provisions of G. L. 5799, relative to the effect of faulty or delayed notice of injury in certain circumstances, apply only to the notice of injury.</p>

<p>Carriers — Interstate Commerce Act — Lawful Freight Bate Must Be Collected and Paid — Party Liable Presumed to Know Lawful Bate — Consignor Primarily Liable for Freight Charges — Bill of Lading not Contract to Collect Charges from Consignee — Passing of Title Held not to Affect Liability for Freight Charges.</p> <p>1. The Interstate Commerce Act requires the carrier to collect, and the party legally responsible therefor to pay, the lawful rate existing at the time of shipment of freight, without deviation through mistake, ignorance, or otherwise.</p> <p>2. The party liable for the freight charges on an interstate shipment is conclusively presumed to know the lawful rate.</p> <p>3. As a general rule, the consignor with whom the contract of shipment is made is primarily liable for the freight charges, whether he is the owner of the goods or not, and whether or not some one else may be liable for the charges either as owner or consignee.</p> <p>4. A provision in a bill of lading that the owner or consignee shall pay the freight and all other charges, and, if required, pay them before delivery, does not constitute a contract by the carrier to collect the freight charges from the owner or consignee, so as to exempt the consignor from liability, and the consignor is liable where the carrier delivered the goods to the consignee without collecting the full charges.</p> <p>5. In such case, the fact that the title to the goods shipped vested in the consignee when they were loaded on the cars does not affect the liability of the consignor for the freight charges; it not appearing that the carrier knew that fact at the time of shipment.</p>

<p>Landlord and Tenant — Lease Covenant Held not to Show Bight of “Extension” — Renewal of Lease by Payment of Rent in Accordance with Renewal Covenant — Renewal Perfected by Performance of Acts Required by Covenant — Satisfaction of Renewal Covenant.</p> <p>1. A provision in a lease that “at the expiration of said term or any extension or renewal of the same” the lessee would deliver up the possession of the premises, etc., did not import that a right of “extension” was granted by the lease, but only provided for delivering up the premises in case of “extension” being had, as by subsequent agreement.</p> <p>2. Where a covenant in a lease gave the lessee the right and privilege to renew from year to year by paying $100 for rent each and every year in advance, payments of rent in advance for successive years were in renewal of the -lease as provided for in the covenant; there having been no breach of its terms and conditions by the lessee.</p> <p>3. In such case, the acts of the parties being in strict conformity to the terms of renewal, and not in accord with any provision of the lease relative to the original term, the law will imply that such payments followed by the lessee’s holding over after the expiration of the term of the lease, were in the exercise of the optional right of renewal.</p> <p>4. When a tenant in possession has done the very act called for on his part in the lease covenant of renewal, he has done every thing required of him to effect a renewal, as the enjoyment of the new term is to be under the conditions of the old, except as to that giving the right of renewal.</p> <p>5. Where the provision in a lease for a renewal is in general terms, it is satisfied by a single renewal.</p> <p>6. The covenant in the lease granting the lessee the right to renew “from year to year” was satisfied by three renewals; and, after receiving notice of the termination of the lease, the lessee’s holding over after the expiration of the term of the third renewal was without right.</p>

<p>Action op Contract. Trial by the Montpelier City Court, Washington County, Erwin M. Harvey, City. Judge. Judgment for the plaintiff. The defendant excepted.</p> <p>The plaintiff sought to recover of the defendant the amount paid him for making the plaintiff a suit of wedding clothes. The plaintiff alleged in his declaration that the defendant promised ‘ ‘ that he would make for him a suit of clothes which were to be properly tailored and of 'good material, properly cut and made, suitable and proper for wearing apparel, for a best suit.” The plaintiff wore the suit at the wedding ceremony and at the dinner which followed, and then took it off and never wore it again, but later returned it to- the defendant and demanded the return of his money, which was refused. The plaintiff claimed that the trouble with the‘suit was that it was made of cloth' of “two different kinds of colors. ’ ’ The trouble with the suit was that, in cutting the cloth of which it was made, the cloth was cut the wrong way of the nap, and it looked as though it was of two different pieces of cloth, unlike in color.</p>

<p>Divorce — Failure to Find Residence — Domicile Essential to Jurisdiction Involves Intention to Remain.</p> <p>1. On the trial of a libel for divorce, the court’s failure to find that the libelant had the residence within the county essential to jurisdiction of the case, was error only if the evidence was such as to entitle the libelant to such a finding as matter'of law, the question being one of fact.</p> <p>2. To constitute domicile essential to give jurisdiction of a libel for divorce, not only residence by the libelant in the county was necessary, but also an intention to remain therein.</p>

<p>■ Petitions for writs of quo warranto by the State, on .the relation of Charles Turrill, against Mitchell W. Plinsdale, and by the State, on the relation of Lawrence Wellinger, against George F. Peét, brought to the Supreme Court for the County of Chittenden at its May Term, 1920, and heard at its November Term, 1920, on the pleadings and on testimony taken and filed. The opinion states the case. . .</p>

■ Appeal to Franklin county court from a decree of the probate court of tbe District of Franklin bolding tbat Wingate W. Munsell was barred by a certain antenuptial contract from taking any part of the estate of Hannah Munsell, and decreeing said estate according to tbe terms of her last will and testament. Heard by Court at tbe September Term, 1920, Franklin County, Stanton, J., presiding. Judgment affirming the decree of tbe probate court and dismissing tbe appeal.

Action op Replevin. Trial by jury at tbe March Term, 1920, Chittenden County, Fish, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case.

<p>Action op Contract to recover the premium claimed to be due upon a workmen’s compensation and employers’ liability policy issued by the plaintiff to the defendant. Pleas, the general issue and declaration in set-off. Trial by Rutland City Court, Rutland County, G. M. Goddard, City Judge. Judgment for the defendant. The plaintiff excepted. The opinion states the ease.</p> <p>The mere fact that the men cutting the wood in Chittenden were paid by the cord instead of by the day did not maké them independent contractors. Pachett v. Moretown Creamery Go., 91 Yt. 97; State ex rel. Virginia & B. Lahe Co., 128 Minn. 43; Sly-cord v. Horn (Iowa) 162 N. W. 249; Tuttle v. Embury-Martin Lumber Co. (Mich.) 158 N. "W. 875; Decator B. & Light Co. v. Industrial Board, 276 111. 472, 114 N. E. 915.</p> <p>An independent contractor is one who, exercising an independent employment, contracts to do a piece of work agreeably to his own methods without being subject to the direct control of his employer except as to results. Bodwell v. Webster, 98 Neb. 664, 154 N. W. 229; Brown v. Industrial Accident Com’r, 174 Cal. 457; St. Louis B. B. Co. v. Cooper, 111 Ark. 91; Note, Ann. Cas. 1918 C, 627.</p> <p>An employers’ liability, or workmen’s compensation, policy covers only such risks as are connected with the operations and employees specifically described therein. United States Fidelity <& Guaranty Go. v. Taylor, 132 Md. 511, 104 Atl. 171; Hunger-ford v. Bonn, 183 App. Div. 818,171 N. T. S. 280; Evansville lee Go. v. Fidelity <& Casualty Go. (Ind.) Ill N. E. 812; Peoples Ice Go. v. Employers’ Liability Ass. Gorp., 161 Mass. 122, 36 N. E. 757; Philipsburg Horse Gar Go. v. Fidelity & Cas. Go'., 160 Pa. St. 350, 28 Atl. 823.</p>

<p>Appeal from an order of the Public Service Commission. Essex County. The opinion states the case.</p>

Action op Tort for negligence. Plea, the general issue. Trial by jury at the September Term, 1920, Rutland County, Chase, J., presiding. At the close of the evidence the Court directed a verdict for the defendant. Judgment on the verdict. The plaintiff excepted. The opinion states the case. 1 Lawrence, Lawrence & Stafford and Asa S. Bloomer for the plaintiff.

<p>Action ok Tort for fraud. Plea, the general issue. Trial by jury at the September Term, 1920, Franklin County, Stanton, J., presiding. Verdict and judgment for the plaintiffs. The defendant excepted. The opinion states the case.</p>

<p>Par.ol Evidence Buie Applicable to Eire Insurance Policies— Parol Evidence Inadmissible to Show that Policy Describing One Building Was Intended to Insure Another Building.</p> <p>1. Tbe rule that parol evidence is not admissible to vary or contradict the terms of a written contract, or in aid of its construction, when its terms are clear and unambiguous, applies to a fire insurance policy.</p> <p>2. Where only one of the insured’s buildings had a “paroid” roof, parol evidence was inadmissible to prove that a fire insurance policy describing the building insured as having such a roof was intended to insure another building, to which the description in the policy in other respects was equally applicable.</p>

<p>Six Actions of- Contract on fire insurance policies to recover for loss sustained .in a certain fire, and consolidated for trial. Trial by jury at the December Term, 1919, Caledonia County, Fish, J., presiding. Verdict and judgment in each action for the plaintiff. The defendants severally excepted.</p>

<p>Duty of Water Company to Furnish Water — Contract by Landlord to Pay for Water Furnished Tenant Not Inferred from Knoiuledge of Invalid Regulation — Regulation Must Not Contravene Rights of Individuals — Tenant of Building Cannot Be Denied Water by Water Company — No Duty on Landlord to Furnish Water to Tenant — Rights of Persons Entitled to Water Cannot Be Modified by Regulation — Charter Provision Construed — Regulation Requiring Landlord to Pay for Water Furnished Tenant Invalid — Consumer Must Provide Service Pipes from Company’s Pipe— Implied Agreement to Continue Certain Service — Regulation Must Not Discriminate.</p> <p>1. A contract by the owner of a building to pay for water furnished tenants, according to an invalid and unenforceable regulation of a water company, not assented to by the owner, will not be implied from knowledge of such regulation.</p> <p>2. A water company charged with the public duty of furnishing water to all the inhabitants of the territory it serves may adopt such reasonable rules for -the conduct of its business as do not contravene' the rights of individuals conferred by statute or embodied in the common law; and such rules are binding on its patrons, and may be enforced, even to the extent of denying water to those who refuse to comply therewith.</p> <p>3. In the absence of a statute affecting his rights, the occupant of premises dependent upon a public service corporation for a supply of water cannpt be denied because he is a tenant and not the owner; and, likewise, the owner of the premises has no standing to complain of the refusal to supply his tenant, and he cannot be held liable for the bills of his tenant, nor can his premises be subjected to a lien for such charges; and a new tenant cannot be affected by the arrears of a prior tenant.</p> <p>4. At common law there is no duty or obligation on the part of a landlord to furnish water to his tenant.</p> <p>5. The rights of inhabitants of a territory, as defined by the charter of a water company charged with the public duty of furnishing them water, cannot be modified by regulation, and so far as the regulation is inconsistent with the provisions of the charter, or deprives a party of a legal right, it is of no effect.</p> <p>6. A provision in. a water company’s charter authorizing it to cut off the supply of water when the “owner or occupant” neglects or refuses to pay water rents is not equivalent to a provision that the rents may be charged to the owner or occupant at the option of the company.</p> <p>7. In the absence of a charter or statutory provision authorizing it, a water company has no power to make a regulation requiring owners of buildings to pay for water used by tenants, and refusing to sell water to the tenants personally.</p> <p>8. The right of an individual tenant in a building to be supplied with water by a water company is qualified by a duty not only to pay or tender the rent charged but also to provide proper service pipes for conveying the water from the company’s line to the tenement occupied by him.</p> <p>9. Where a water company for several years had voluntarily rendered service through a one-pipe system to the tenants of a building, the law implied an agreement to continue such service, at least until by a proper and reasonable regulation it should call upon all its patrons, without discrimination, to change the means of supply; and tenants would be entitled to a reasonable opportunity to comply with such a regulation.</p>

<p>Original Petition, brought to the Supreme Court for Orleans County, for a new trial on the ground of newly discovered evidence in the ease of State v. Peter J. Fleming, which-was tried in Orleans County Municipal Court, and resulted in a verdict and judgment of guilty. The opinon states the case.</p>

<p>Action oe Contract. Plea, the general issue and offset. Trial by jury at the March Term, 1920, Chittenden' County, Fish. J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.</p>

<p>Action op Tort for deceit and false warranty in the sale of eight cows brought in the St. Albans City Court. Trial by Court, Nathan N. Post, City Judge. Judgment for the defendant. The plaintiff excepted. The opinion states the case.</p>

<p>Complaint for neglect to support minor child, under G-. L. 3536, brought in Hartford Municipal Court, A. G. Whithorn, Municipal Judge. Plea, not guilty. Trial by jury. Verdict and judgment of guilty. The respondent excepted. The opinion states the case.</p>

<p>Disbarment Proceedings — Acts Constituting Malpractice — Searing of Disbarment Before Trial on Information not Abuse of Discretion — Denial of Continuance Because Witnesses Charged with Crime Would Claim Privilege — Proof of Physical Disability Necessary for Continuance — Acquittal of Confederate not Evidence in Disbarment Proceedings— Nolle Proseqm of Criminal Charge not a Defence to Disbarment for Same Act — Disbarred Attorney Who Offered no Evidence not Entitled to Reinstatement on Newly Discovered Evidence.</p> <p>1. If an attorney, by any act of commission or omission, deceives the court so that he obstructs .or pollutes the administration of justice, or by the suppression of truth obtains a result hot warranted in law, he is guilty of malpractice and renders himself unworthy of the privileges which his license to practice law confers upon him.</p> <p>2. An order by the Court for an investigation of charges preferred against an attorney on proceedings for his disbarment, before his trial on an information charging the same acts.as a crime, was not an abuse of the Court’s discretion, where the charges were preferred by the highest prosecuting officer of the State and involved attempts to obstruct the due administration of . • justice by perpetrating a fraud upon the court.</p> <p>3. The denial, by commissioners to hear disbarment proceedings, of a continuance because witnesses for the respondent were charged with some criminal offence and would claim their privilege of refusing to testify, was not erroneous, where the commissioners reserved their ruling upon the effect of the claim of privilege by the witnesses until such claim should be made, and the witnesses were not subpoenaed by the respondent to appear at the hearing.</p> <p>4. The commissioners did not err in denying a continuance because of the physical inability of the respondent to attend the hearing, until proof of such inability was presented beyond the mere statement of his counsel.</p> <p>5. Where a respondent in disbarment proceedings is charged with having conspired with another to procure a certain court to find and establish a forged document to be genuine, and with having committed perjury as to the genuineness of such document, the acquittal of such other person of having committed perjury as to the genuineness of such document is not proper evidence in the disbarment proceedings.</p> <p>6. The entry of a nolle prosequi in a criminal prosecution of an attorney does not constitute a defence to disbarment proceedings against him based on the commission of the crime.</p> <p>7. An attorney who failed to participate or offer any evidence in disbarment proceedings resulting in his disbarment is not entitled to reinstatement as an attorney on the ground of newly discovered evidence.</p>

<p>Master and Servant — Workmen’s Compensation Act — Employee Injured by Third Person’s Negligence — Employer Subrogated to Eights of Employee When Compensation Paid — • Amendment to Declaration in Suit for Employer’s Benefit' —Evidence Viewed in Plaintiff’s Favor on Defendant’s Motion for Verdict — Defendant’s Negligence — Plaintiff’s Contributory Negligence — Jury Questions.</p> <p>1. Under the Workmen’s Compensation Act (G. L. 5774, 5775), if an employee, injured through the negligence of a third person, elects to take, ancl is awarded, compensation under the act, his employer is subrogated to his rights to recover against that person, and can maintain an action against that person in the employee’s name.</p> <p>2. In such case, where the original declaration in a suit brought in the name of the employee in behalf of his employer and its insurer was in the common-law form for negligence, it was not error to permit the plaintiff to file an amended declaration identical with the original declaration, except that it alleged that the employee and employer were subject to the provisions of the Workmen’s Compensation Act, that the employer was insured with the insurer, and that the employee had elected to take, and had been paid, compensation, for his injuries, as the amendment did not introduce a new cause of action; the liability of the defendant being the same whether the action was for the benefit of the injured employee or his employer.</p> <p>3. On a defendant’s motion for a directed verdict, the evidence must be viewed in the light most favorable to the plaintiff.</p> <p>4. In an action against a railroad' for injuries to a consignee’s employee received by being struck by a heavy barrel being rolled over a truck board from a freight car to a storehouse, the question whether defendant’s employees were negligent in letting go of the barrel and permitting it to run wild when halfway down the truck board was for the jury.</p> <p>5. In such ease, the question of plaintiff’s contributory negligence in not evading the barrel was for the jury.</p>

<p>Petition to the Supreme Court for Chittenden County for a writ of mandamus to compel a former judge of the Burlington City Court to sign a bill of exceptions in a cause heard and determined by him. Heard on petitionees’ demurrer to petitioner’s replication. The opinion states the ease.</p>

<p>Constitutional Law — Governor’s Power of Approval and Disapproval of Bills Passed by Legislature — Practical Construction Resorted to Only in Case of Ambiguity — Construction of Written Instruments — Governor May Approve Bills After Adjournment of Legislature — Conduct of Public Officers Presumed to be Regular — Governor May Approve Bills Presented After Adjournment of Legislature — Bills Presented Within Three Days of Adjournment of Legislature Must Be Approved Within Five Days After Presentation.</p> <p>1. The power of, approval or disapproval hy the Governor of hills passed hy the General Assembly conferred hy Section 11, Chapter 2, of the Constitution, is only a restraint on the supreme legislative authority vested in the General Assembly hy Section 6, and its nature cannot he extended hy construction, especially in view of Section 5, providing that the Legislative, Executive, and Judiciary departments shall be separate and 'distinct, “so that neither exercise the powers properly belonging to. the others.”</p> <p>2. The practical construction of a provision of the Constitution by officers charged by law with duties in respect thereto can be resorted to in aid of its interpretation only in case of doubtful meaning; and, when the language is unambiguous, its meaning cannot be modified or controlled by practice, however long continued.</p> <p>3. In construing a written instrument, resort is first had to the obvious meaning of the language used, and, if this is explicit and unequivocal, all inference by way of construction is excluded.</p> <p>4. Under Section 11, Chapter 2, of the Constitution, the Governor is authorized to approve and sign bills in his hands for revision after the final adjournment of the Legislature, éxcept that he is limited as to time to the period of five days (Sundays excepted) after the bill has been presented to him.</p> <p>5. When the conduct of public officers is involved, all reasonable presumptions are indulged in favor of regularity.</p> <p>6. Under Section 11, Chapter 2, of the Constitution, the Governor is authorized to approve and sign bills presented to him after final adjournment of the Legislature, if done within the time allowed.</p> <p>7. Unless a bill presented to the Governor within three days before final adjournment of both Houses is approved by him within five days (Sundays excepted) after presentation, it does not become a law.</p>

<p>Objection Must Be Made When Court Buies — Directed Verdict Upheld if There Was Evidence to Stistcdn It — Directors Acting Separately May Bind Corporation — Sales—Change of Possession — Possession in Buyer at Time of Sale — Employee of Corporation Held to Have Paid Jtidgment With His Own Money.</p> <p>1. Where both parties moved for a directed verdict and said there was nothing to be submitted to the jury, and the court stated to the jury that both sides conceded that the uncontradicted testimony in the case was determinative of the outcome, it was the duty of the defendant to then object, if he understood or claimed the position of the parties to be otherwise.</p> <p>2. In such circumstances it was for the court to direct a verdict on such a state of facts as it regarded proved by the evidence, and such verdict will be upheld if there was evidence to sustain it.</p> <p>3. The action of a majority of the directors Of a corporation, though acting separately, if within the scope of their powers, binds the corporation, in the absence of any provision in its charter or by-laws rendering such action illegal; and they may thus make a legal sale of the corporation’s personal property.</p> <p>4. Where personal property of the 'seller is in the manual possession of the buyer at the time of sale, no other change of possession is essential in law to make the sale valid as to third parties.</p> <p>5. Where plaintiff,'an employee of a telephone company, paid himself from telephone tolls collected by him, and used tolls, which he was keeping to apply on his wages and which he had a right to so apply, to settle a judgment against the company, such settlement was, in legal effect, with his own money.</p>

<p>Action op Contract to recover for the use and occupation of certain land. Plea, the general issue. Trial by Court at the August Term, 1920, Grand Isle County, Chase, J., presiding. Judgment for the defendant. The plaintiff excepted. The opinion states the ease.</p>

<p>Appeal in Chancery. Bill for an injunction. Heard on a special master’s report at tbe March Term, 1919, Chittenden County, Waterman, Chancellor. Decree for the plaintiff. The defendant appealed. The opinion .states the case.</p>

<p>Taxation — Products Intended for Exportation to Another State —Action to Recover Tax Paid — Burden on Plaintiff to Show Illegal Assessment — Interstate Commerce — Property in Transit from One State to Another Exempt from Local Taxation — When Property Becomes Subject to Interstate Commerce — Interruption in Transportation — Eindings Presenting Questions of Law.</p> <p>1. Products of the State intended for exportation to another state do not cease to be a part of the general mass of property in the State, subject as such to its jurisdiction and to taxation in the usual way, until they have been shipped or entered with a common carrier for transportation to another state, or have started upon such transportation in a continuous route or journey.</p> <p>2. In an action to recover money paid as a tax, the burden is on the plaintiff to show that the tax was illegally assessed.</p> <p>3. While property actually in transit from one state to another is exempt from local taxation as an unlawful interference with • interstate commerce, there may be an interior movement of property which does not constitute interstate commerce, although it comes from or is destined to another state.</p> <p>4. The State has power to tax its own products while within its jurisdiction, although intended for exportation, if taxed as part of the general mass of property in the State, unless and until such products have become the subject of interstate commerce.</p> <p>5. When goods are transported from one state to another by means other than by a common carrier, the state’s jurisdiction over them ends when they have started for transportation out of the state in a continuous journey; all movements within the state preparatory to the final movement being preliminary to interstate transportation and not a part of it.</p> <p>6. Where pulpwood cut in this State and destined to another state was floated down a' river wholly in this State to its mouth in the Connecticut River, where it was held until the receding waters in the Connecticut River made it practicable and safe to float it to its destination, the wood, while so held, was for its owner’s benefit, and had not started on its final movement to the other state, and was subject to local taxation.</p> <p>7. The court’s finding that the drive of the pulpwood was in continuous operation and was conducted properly to make an uninterrupted passage, so far as possible, cannot affect the result; as the essential facts, which showed that there was an interruption, and the occasion of it, were not in controversy, and made the conclusion to be drawn therefrom a question of law.</p>

Action ok Contract to recover damages for breach of agreement for sale and purchase of standing timber. Trial by jury at the June Term, 1920, Bennington County, Wilson, J., presiding. Verdict and judgment for the plaintiff. The defendants excepted. The opinion states the case.

Action op Tort for the unlawful flooding of plaintiff’s land by means of a dam maintained by the defendants. Answer, general denial and prescriptive right. Trial by jury at the March Term, 1920, Franklin County, Moulton, J., presiding. Verdict and judgment for the plaintiff. The defendants excepted. The opinion states the case.

Petition for a writ of certiorari) brought to the Supreme Court for Franklin County, to review the proceedings of appraisers appointed by tbe Tax Commissioner under G. L. 843. The opinion states the case.

<p>Petition for a writ of certiorari, brought to the Supreme Court for Franklin County, to review the proceedings of appraisers appointed by the Tax Commissioner under GL L. 843. The opinion states the case.</p>

Action op Contract for the collection of taxes. Plea, the general issue and notice of defence. Trial by Court at the June Term, 1920, Orange County, Chase, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case. The statute requiring that real estate shall be set in the list to the last owner or possessor thereof is mandatory, not directory.

Action ok Tort for negligence. Plea, the general issue. Trial by jury at the March Term, 1920, Washington County, Chase, .J., presiding. Verdict and judgment for, the plaintiff. The defendant excepted. The opinion states the case.

Action of Contract. Answer: Statement of facts relied upon in defence, and complaint in set-off based thereon. Trial by jury at the September Term, 1920, Washington County, Wilson, J., presiding. Verdict and judgment for the defendant The plaintiff excepted. The opinion states the ease.

Appeal in Chancery. Bill to enjoin the defendant from waiving the provisions of his deceased wife’s will. Heard on the pleadings and testimony at the September Term, 1919, Washington County, Stanton, Chancellor. Decree dismissing the bill with costs. The plaintiffs appealed. The opinion states the case.

<p>Appeal in Chancery. Bill for the specific performance of a contract to convey land and for damages arising from certain acts of the defendants which made them unable to comply with the provisions in the contract for the conveyance by them to the plaintiff of a right of way over other land. Heard on the pleadings and an agreed statement of facts at the March Term, 1920, Rutland County, Wilson, Chancellor. Decree for the plaintiff for specific performance and for the recovery of damages. The defendants appealed. The opinion states the case.</p>

<p>Statute of Limitations-^Controlled by Law of Forum — Cause of Action Accruing in Another State of Which the Parties Were Then Residents.</p> <p>1. Since the statute of limitations affects the remedy only, whether an action is barred is determined by the law of the forum.</p> <p>2. Where a cause of action accrued in another state and the parties thereto resided in such state at the time, the statute of limitations applies; the provisions Of G-. L. 1862 .not extending to such a case.</p>

<p>Pleading — Allegations Held not Conclusions of Law — Allegations Held not Restricted by Subsequent Allegations — Objection not Raised Below not Considered — Province of Demurrer Under Practice Act — Invitee to Premises — Express Invitation by Employee — Implied Invitation — Allegations Showing That Plaintiff Was Invitee.</p> <p>1. In an action for personal injuries to an invitee, based upon the negligence of the defendant, allegations that the defendant “requested, lured, and induced” the plaintiff to go upon the premises were not mere conclusions of law, but allegations of fact.</p> <p>2. Such allegations were not restricted in meaning by subsequent allegations that the defendant, acting through its duly qualified agents and employees, requested, etc., and that defendant’s employee, acting within the scope of his employment and in the exercise of authority given him by the defendant, requested, etc.; such allegations being all to the same effect, and the proof, if it conformed to the last, being consistent with the others.</p> <p>3. In such case, the plaintiff could not rely upon an express invitar tion from defendant’s employee in charge of the premises, unless he proved that the employee had authority from the defendant as alleged. '</p> <p>4. Grounds of demurrer to a pleading, not raised below, will not be considered on review.</p> <p>5. Under the Practice Act, the legitimate use of the demurrer is to test the sufficiency of a pleading in matters of substance; the sufficiency of all pleadings in respect to form being left, under G. L. 1795, to the discretion of the trial court, and, under G. L. 1793, uncertainty being a matter to be dealt with by a motion to expunge, or some other appropriate action.</p> <p>6. To come on premises under an implied invitation, as distinguished from a mere license, the visitor must come for a purpose connected with the occupant’s business, or which he permits to he carried on there, and there must be some mutuality of interest in the subject-matter of the visit, although the particular business which is the object of the visit may not be for the benefit of the occupant.</p> <p>7. In an action by a child to recover damages for injuries while in defendant’s power house, allegations that he went there at the request of defendant’s employee in charge, for the sole purpose of carrying necessary food to him while on duty, with the defendant’s knowledge and approval, were sufficient to support an inference that the plaintiff was at the place of accident as an invitee, and not as a mere licensee.</p>

<p>Decree Unsupported by Findings Prejudicial Error — Ground of Exception to Master’s Report Must Be Stated Below — Reformation of Deeds — Reformation Awarded Either for Mistake or Fraud — Findings As to Necesswry Measure of Proof ■ — Relief on Ground not Stated in Bill — Supreme Court Sits As Court of Error Only in Chancery Cases — Presumptions in Favor of Decree — Only Necessary Inferences Against Decree.</p> <p>1. In a suit to reform a deed for mistake, and for an injunction to restrain defendant from prosecuting an action at law on the covenants of the deed, where the master failed to find that the plaintiff was entitled to relief in reference to the covenant against incumbrances, but found that, at the time of the sale, plaintiff said nothing to defendant with relation to a mortgage on the premises, and that the latter had no knowledge of it, it was error to decree a reformation of the deed in accordance with the prayer of the bill in this regard, and an injunction restraining defendant from asserting any claim for damages for breach of the covenant against incumbrances.</p> <p>2. Such error could not be deemed immaterial on the ground that defendant’s suit at law had been discontinued, since it is probable that it was discontinued because of plaintiffs death and the appointment of commissioners, and, under G. L. 3305, defendant would be entitled to present a claim against his estate for costs, if only for nominal damages, which he is restrained from doing by the decree appealed from.</p> <p>3. Exceptions to a master’s findings that do not clearly present the questions attempted to be raised will not be considered on review.</p> <p>4. Equity will afford relief in a suit to reform a deed for mistake where the findings show either a mutual mistake, or a mistake on the part of the plaintiff to which the fraud of the defendant contributed.</p> <p>5. In such a suit it is not essential that a master use the words “beyond a reasonable doubt” in referring to the degree of certainty with which he makes his findings; it being sufficient if it appears that the issue is sustained by that measure of proof, whatever the expression may be.</p> <p>6. A plaintiff may have relief in a court of equity, where the facts found present a case entitling him thereto, although not supported by the allegations in the bill, but he must ask to amend the, bill to conform to the facts found.</p> <p>7. In chancery appeals the Supreme Court sits as a court of error only.</p> <p>8. In a chancery appeal the Court is bound to make every reasonable intendment in support of the decree.,</p> <p>9. It will be assumed on appeal that the chancellor inferred from the facts found any fact fairly inferable therefrom and necessary to support the decree, but it will not be assumed, for the purpose of a reversal, that the court below drew any inference not affirmatively shown by the record, unless the same is a necessary inference from the facts found.</p> <p>10. Since the facts reported do not show the plaintiff negligent as matter of law, the Court cannot supply that fact by inference for the purpose of a reversal.</p>

<p>G. L. 1863: — Tolling of Statute of Limitations by Fraudulent Concealment of Cause of Action — When Mere Silence Constitutes Fraud — Question of Pleading not Considered When Issue Tried as Though Properly Pleaded — Finding That Claim Was Barred not Reversible When No Finding That Claim Was Ever Oiued — Unsupported Evidence of Party Need not Be Believed.</p> <p>1. Under G. L. 1863, as to the tolling of the statute of limitations by the fraudulent concealment of the cause of action, while some material fact must be concealed by positive or affirmative act as distinguished from mere silence, it is immaterial whether the concealment precedes, is concurrent with, or subsequent to, the beginning of the cause of action; and the fraud, by which the concealment is accomplished, need not be other *than that which constitutes the cause of action, if it actually has such effect.</p> <p>2. The effect of the original fraud, whether operating to conceal the cause of action or not, is the controlling factor when the defendant does no more than to remain silent, and, in such case, if it is the duty of the defendant to disclose a breach of trust or confidence, his mere silence, if it conceals the facts, is an affirmative act postponing the running of the statute of limitations.</p> <p>3. Where plaintiff’s bank deposit was wrongfully withdrawn and converted by her brother without her knowledge or consent, and she did not discover the fact until after his death nine years later, his failure to disclose the withdrawal of the deposit was a fraudulent concealment of the cause’ of action within the meaning of G-. L. 1863.</p> <p>4. Where an issue was tried as though properly pleaded, and the record states that no question was made on trial as to the .pleadings and their sufficiency, the objection, made for the first time in Supreme Court, that it was not raised by the-pleadings will not be considered.</p> <p>5. In an action against a decedent’s estate, a finding that certain items were barred by the statute of limitations, if incorrect, was not reversible, where there was no finding that the items were ever owing to the plaintiff.</p> <p>6. The trial court is not bound to believe the unsupported testimony of a party although not directly contradicted.</p>

<p>Trustee Process — Liability of Director General of Railroads As Trustee — Liability of Trustee Determined by Pacts At Time of Trial — Interest on Account Trusteed — Custom Relied On As Defence Must Be Proved.</p> <p>1. While trustee process operates as an attachment of the fund pending the determination of liability, as to the trustee, it is primarily an action in personam, brought in the plaintiff’s name in the right of the defendant, and not a “levy” within section 10 of the Federal Control Act; and the Director General of Railroads is subject to such process to reach credits in his hands for loss of freight and freight overcharges, and to judgment if found indebted.</p> <p>2. If, at the time the Director General was summoned as trustee, such credits were exempt under his General Order No. 43, forbidding the bringing of trustee process, he became chargeable as trustee on the revocation of the order before trial; the lia- ' bility of one summoned as trustee being determined according to the state of facts at the time of trial.</p> <p>3. If, at the time of the service of the process on the trustee, the debt attached is one on which the principal defendant can demand interest, the running of the interest is not interrupted by such .service.</p> <p>4. If a custom that freight claims against a railroad are non-interest bearing is relied upon as a defence to interest charges, such custom must be proved by the party claiming it.</p>

<p>Original Petition to the Supreme Court for Bennington County for a new trial in the ease of In re Healy’s Will on the ground that the petitionee, during the trial of such case, treated certain jurors with intoxicating liquor. The opinion states the case.</p>

Petition to the Hartford Municipal Court, Windsor County, for a new trial on the ground of fraud, accident, and mistake. Heard by Court, A. G. Whitham, Municipal Judge. The Court made the order: ‘ ‘ Judgment that the execution against the trustee in said cause of Moore v. Kinne, No. 270, be stayed”;' but no findings of fact were made nor complete judgment rendered. The petitionee excepted.

Action of scire facias against bail. Plea, nul tiel record. Trial by Court, Hartford Municipal Court, Windsor County, 4~ G. Whitham, Judge. Judgment for the plaintiff. The defendant excepted. The opinion states the case.

<p>Title hy Adverse Possession — Elements of — Aqueduct Through Land of Another — Evidence.</p> <p>1. Evidence held sufficient to sustain a finding that the adverse possession by which a prescriptive right to maintain an aqueduct through land of another was acquired, was open, notorious, adverse, and under a claim of right.</p> <p>2. In order to perfect title by adverse possession it is not necessary that the true owner should have actual knowledge or notice of the claim of the possessor; it is enough that the possession is open and notorious under claim of title.</p> <p>3. That an aqueduct across defendant’s land from a spring to plaintiff’s house wore out and was replaced with new pipe by defendant was immaterial on the question of a previous acquisition of a prescriptive right to maintain such acqueduct.</p>

<p>Memorandum of Sale — Foreign Law Must Be Proved — Contract in Form of Lease a Conditional Sale — Replevin—Sufficiency of Demmid and Refusal.</p> <p>1. A writing, “Sold to W. one Haynes 4 passenger for $1,525, $1,475 due,” not accompanied 'by delivery, held not to evidence a consummated sale, but to be treated merely as a memorandum of a conditional sale agreement subsequently concluded.</p> <p>2. The law of this State furnishes in all cases prima facie the rule of decision; and, if a party relies upon the law of another state or country, he must prove it as a fact. '</p> <p>3. A contract in the form of a lease of an automobile, which acknowledges the receipt of a certain sum and provides that when a certain other sum is paid rent shall cease and the automobile shall become the property of the lessee, is a conditional sale.</p> <p>4. While no formal language is necessary to constitute a demand and refusal that will subject one lawfully in possession of a chattel to an action of replevin, yet the language of the demandant must he such as to amount to a positive, unequivocal demand for possession, and the language or conduct of the other must be such as to amount to a refusal to deliver.</p> <p>5. In such case, whether the language used is sufficient to support an inference that it was intended on the one hand as a demand for possession and so understood on the other is a question of law for the court, as it is in determining whether the language or conduct of the one in possession constitutes a refusal.</p> <p>6. Where defendant had defaulted in the payment of a conditional sale contract of an automobile, plaintiff’s statement to defendant that he must either have payment of the notes or have the car did not amount to a sufficient demand for the possession of the car to sustain an action of replevin.</p> <p>7. In such case, defendant’s refusal to pay the notes; and his failure to turn the car over to plaintiff, or tell him where it was, it not appearing that he was requested to do either, did not constitute such a refusal to deliver possession of the car as would support the- action.</p>

<p>Criminal Law — Harmless Error — Proof of Undisputed Fact by Improper Evidence — Evidence—Explanatory—Narrative— Corroboratory — Improper Remarks Provoked by Opposing Counsel — Election of Offences — Selling Dihtted Milk-Samples Not Taken as Provided by Statute — Principal Responsible for Dilution by Agent — Knowledge or Intent Immaterial.</p> <p>1. The admission of improper evidence to prove an undisputed fact . . is harmless error.</p> <p>2. In a prosecution for selling milk diluted with water, where it appeared during the cross-examination of a State’s witness that he had pleaded guilty to selling and furnishing watered milk, and he was asked if since that time he had not been to B.’s house and urged B. and his wife to plead guilty to a like charge and pay their fine, which he denied, on redirect examination he was properly permitted to testify that he called at B.’s house after he pleaded guilty, and to explain why he was there.</p> <p>3. The admission of incompetent evidence, which was merely a part of the narrative by a State’s witness of how the respondent’s milk came to be examined, was harmless.</p> <p>4. The sheriff- was properly permitted to testify that he asked the State’s witness (who hadi testified that he stopped at B.’s house after he had pleaded guilty) to stop at B.’s house on his way home and ask him to come to town the next day, as it tended to corroborate the witness.</p> <p>5. Permitting a witness to testify as to her understanding of a certain matter was harmless error, where she had already testified to facts from which no other understanding was deducible, and where, too, the subject-matter of the inquiry was undisputed.</p> <p>6. A respondent cannot complain of remarks by the State’s attorney wbicb were provoked by improper statements by respondent’s counsel during the examination of witnesses.</p> <p>7. Since the complaint contained only one count, and the State’s evidence tended to show three separate offences, it was error for the court to refuse, at the close of all the evidence, to require the State to elect the offence on which it would rely for a conviction, and to allow the case to go to the jury on all the evidence of offences.</p> <p>8. G. L. 5907, prohibiting the sale of milk diluted with water, is not supplanted or modified by G. L. 5985, providing that, in the absence of an agreement in writing providing for a different mode of payment, the price of milk and cream sold to creameries, etc., shall be based upon a quality test;'and, a person selling milk diluted with water violates G. L. 5907, irrespective of whether the milk is sold by weight, measure, or quality.</p> <p>9. Samples of respondent’s milk were competent evidence, although the provisions of G. L. 5909, 5910, were not followed when they were taken for examination, and the court properly refused to charge that such noncompliance must be taken by the jury as weakening the value of the tests as evidence; it being for the jury, rather than the court, to say what weight should be given it.</p> <p>10. Where the owner of milk employed another to carry milk to a creamery to which it was sold, and the employee watered the milk while on the way, without the owner’s knowledge or consent, the latter was guilty of a violation of G. L. 5907; knowledge, or guilty intent, being immaterial to the offence.</p>

<p>Action ok Tort for the alienation of the affections of the plaintiff’s wife. Plea, the general issue. Trial by jury at the September- Term, 1919, Washington County, Butter, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.</p>

<p>Carriers — Tariffs Musi Be Filed in Offices — Railroad Bound by Agent Accepting Goods As Baggage — Burden on Railroad to Prove Compliance With Statute — Presumptions—Con- . flicting Presumptions — Jury Question — Judgment Affirmed on Any Legal Ground Shoivn by Record — Knowledge Acquired by Agent Outside of Employment Imputed to Principal.</p> <p>1. Under G. L. 5281, a railroad company must not only file its schedules of rates with the Public Service Commission, but must also file them in its offices in order to establish the rates therein contained, and, until both of these requirements are complied with, the schedules afford no protection to the company.</p> <p>2. Such schedules of rates aside, a railroad company is bound by the act of its station agent in knowingly accepting goods other than baggage for transportation as baggage and placing them in the waiting room for the night with the express intent of checking them in the morning; such goods being burned during the night.</p> <p>3. In an action against a railroad company for loss of goods by fire, which had been accepted by its station agent as baggage, the burden was on the defendant to show full compliance with G. L. 5281 to make its schedules of rates available for its protection. In sustaining such burden it was aided by the presumption that the statute had been fully complied with, since noncompliance was penalized. Such presumption, however, was not conclusive, and the burden of proof remained with the defendant, and the question was for the jury unless the proof and inferences were all its way.</p> <p>4. While presumptions have the force of evidence and stand until met or overcome, one presumption may be met or even overcome by another presumption; and, when opposing presumptions arise from the evidence, the question is one of fact for the jury.</p> <p>5. Since the act of defendant’s agent in knowingly accepting the • goods in question as baggage raised a presumption that there was no lawful and binding regulation forbidding it, as such act was penalized if the schedules were properly established, the question whether defendant filed its schedules in its offices as required by the statute was for the jury.</p> <p>6. A judgment below will be affirmed on any legal grounds shown by the record, irrespective of whether the question was raised below or briefed.</p> <p>7. It was immaterial that defendant’s agent was not acting as such when he learned that the goods in question were not baggage, if such information was actually in his mind when he accepted them as baggage.</p>

<p>Action op Tort. 'Plea, the general 'issue. Trial by jury at the March Term, 1920, Rutland County, Wilson, J., presiding. Verdict and judgment for the plaintiff. The defendants excepted. The opinion states the case.</p>

<p>Appeal from a decree of the probate court for' the District of Orleans establishing an instrument as the last will and testament of William Wood. Plea, lack of testamentary capacity and undue influence. Trial by jury at the September Term, 1919, Orleans County, Moulton, J., presiding. Verdict and judgment for the proponent. The contestants excepted. The opinion states the case.</p>

<p>Fixtures — Lease of Personal Property a Bailment — Annexation of Personal Property Bailed to Land by Bailee — When Such Property Becomes Beal Estate — Evidence—Submission of Unnecessary Issues to Jury Harmless to Party Benefited.</p> <p>1. Where plaintiff, by written lease, leased a gasoline storage tank for use by the lessees on their premises, the transaction was a bailment, and, as between plaintiff and the lessees, setting the tank in the ground and covering it with earth did not cause it to become real estate.</p> <p>2. The annexation by a bailee to his land of personal property bailed, with or without the knowledge and consent of the bailor, does not change the character of the property, and the bailor may recover it from the bailee’s grantee, even though the latter' be an innocent purchaser, unless the annexation be of such a character that the identity of the chattel is thereby lost, and it cannot be removed without substantial injury to itself or the real estate.</p> <p>3. In an action of replevin by a bailor to recover a storage tank attached to the land of the bailee, where there was a conflict in the evidence as to the damage to the land resulting from its removal, the question was for the jury, and any evidence tending to show that no material damage was done to the tank or the land by its removal was admissible.</p> <p>4. Where the court unnecessarily submitted issues to the jury, which operated as a gratuity to the defendant, any errors therein were, harmless as to him.</p>

Action of Contract. Plea, the general issue. Trial by jury in St. Albans City Court, Franklin County, Nathan N. Post, City Judge. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case.

<p>Action Of Contract. Judgment was rendered against the principal defendant at the June Term, 1915, Caledonia County, Miles, J., presiding, and the ease referred to a commissioner to take the disclosure of the trustee. Hearing on the commissioner’s report at the June Term, 1919, Stanton, J., presiding. Judgment discharging the trustee. The plaintiff excepted. The opinion states the case.</p>

<p>Highways — Notice to Selectmen of Injuries Not Stating Year Insufficient — Complaint Need Not Allege Notice to Selectmen — Unnecessary Allegation Not Surplusage When It Shows That Plaintiff Has No Cause of Action.</p> <p>1. A notice to the selectmen of a town of injuries caused by an allege! defective bridge, which was dated July 3, 1919, and stated tha the injuries were received on Sunday, June 15th, without stating the year, was insufficient to comply with the requirement of G. L. 4617, that the time he stated.</p> <p>2. A complaint against a town for injuries caused by an alleged). defective bridge need not allege the giving of notice of such injuries to the selectmen.</p> <p>3. The allegation of such a notice in the complaint cannot be rejected as surplusage, where the notice as alleged was so defective that the plaintiff had no cause of action.</p>

<p>Chattel Mortgages — Sufficiency of Description as Between Parties — Cross-examination of a Party — Conversion of Mortgaged Property — Evidence of Demand and Refusal— Waiver of Objection — Unresponsive Answers — Punitive Damages — Evidence of Value — Remoteness—Exception to Charge Must Be Specific.</p> <p>1. While, to be sufficient against third parties 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 and directed thereby, yet, as between the parties, any description is good, if the parties at the time knew and understood what the mortgage covered.</p> <p>2. As between the parties to a chattel mortgage, as well as between the mortgagee and one who has succeeded to the mortgagor’s interest with actual notice of the mortgage, parol testimony is admissible in aid óf the description to identify the property intended to be covered thereby.</p> <p>3. In an action by a mortgagee against the mortgagor for the conversion of property covered by a chattel mortgage, evidence that the defendant had other .property of the kind described in the mortgage is wholly immaterial, unless the' identity of the things mortgaged with those converted is in issue.</p> <p>4. A party calling the other party as a witness has the right to question him as in cross-examination.</p> <p>5. Evidence that when an officer, for the purpose of foreclosing the mortgage, went to defendant’s house where part of the mortgaged property was and asked him to show him such property, the defendant replied, “It is your business to find them,” and did nothing to assist the officer in identifying the property, and the latter left without securing any of it, was sufficient to warrant a finding that there was’ a demand for the property and that what the defendant said and did was intended and understood as an unconditional refusal to deliver the property.</p> <p>6. The officer’s return on an execution showing a levy on certain property of the defendant of the same character as that described in the mortgage, and a notice of a sheriff’s sale of the property described in the levy were inadmissible as tending to show that some of the mortgaged property was then on defendant’s farm, in the absence of evidence that the property levied upon was the same as that mortgaged or that the officer found the property levied upon.</p> <p>7. An objection not relied upon in review is waived.</p> <p>8. The giving of unresponsive answers by a party while on the witness stand is a matter largely in the hands of the trial court to be dealt with as justice may require, and, when it appears • to the court that such answers are given intentionally to gain an advantage and that the verdict has been influenced thereby, it is the duty of the court, on proper motion, to set the verdict aside.</p> <p>9. A mortgagee suing a mortgagor for the conversion of mortgaged personal property is entitled to punitive damages when the conversion of any of the mortgaged property was in reckless and wanton disregard of his rights.</p> <p>10. In such case, evidence that the bulk of the mortgaged property had been consumed by the defendant without the plaintiff’s knowledge or consent, and that the remainder was wrongfully withheld from the plaintiff when called for, warranted the allowance of punitive damages.</p> <p>11. The mortgage in question was executed October 16, 1914. A considerable part of the mortgaged property was converted the same fall and in the winter following. Held, that evidence of its value at the time the mortgage was given was not too remote to prove its value at the time of conversion.</p> <p>12. An exception to a charge too broad and not specific enough to call the court’s attention to a point not raised at the time will not be sustained.</p>

<p>Appeal in Chancery. Petition to foreclose a mortgage. Heard on the pleadings and facts found by the Chancellor at the March Term, 1921. Rutland County, Wilson, Chancellor. Decree for the plaintiff. The defendants appealed. The opinion states the case.</p>

Appeal in Chancery. Bill to establish and enforce an equitable assignment of a nonnegotiable chose in action. Heard on the pleadings and facts found by the Chancellor at the March Term, 1920, Franklin County, Moulton, Chancellor. Decree for the plaintiff. The defendant appealed. The opinion states the ease.

Action op Trespass to recover treble damages for cutting timber on plaintiffs’ land. Plea, the general issue. Trial by jury at the September Term, 1920,' Washington County, Wilson, J., presiding. Verdict and judgment for the plaintiffs. The » defendants excepted. The opinion states the case.

Action oe Contract. Heard on an agreed statement of facts in vacation after the June Term, 1920, Lamoille County, Chase, J., presiding. Judgment for the plaintiff against the principal defendant, and judgment discharging the trustee with costs. From the last judgment the plaintiff excepted. The opinion states the case.

<p>Action of Tort for negligence in managing and earing for personal property sold by the defendant to the plaintiff while in the possession of a lessee. Plea, the general issue. Trial by jury at the September Term, 1920, Washington County, Wilson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.</p>

<p>Action of Justice Ejectment for nonpayment of rent. Heard on an agreed statement of facts by the Court, Addison County Municipal Court, Albert W. Dichens, Municipal Judge. Judgment for the plaintiffs. The defendant excepted. The opinion states the ease.</p>

<p>“Reservation” and “Exception” Construed as Synonyms When So Intended — Reservation of Right to Take Water From Spring Held An Exception — Right to Lay Aqueduct Included — Rights of Subsequent Parties — Quantity of Water Secured by Exception.</p> <p>1. The terms “reservation” and “exception” are often used synonymously when the thing to be secured to the grantor is a part of the granted premises, and when so used they are to be construed accordingly; the intention of the parties, and not the language used, being controlling.</p> <p>2. A provision in a deed “reserving” to the grantor the right to bring water in pipes or logs from a spring on the land conveyed to the grantor’s dwelling house on adjoining land, construed, in view of the surrounding circumstances, as an exception and not as a reservation.</p> <p>3. The fact that no aqueduct had been laid to the spring at the time of the deed is immaterial, as the exception not only secured to the grantor the right to take water from the spring, but also to do whatever was reasonably necessary to make such right available for the purpose for which it was intended.</p> <p>4. The grantee having acquired no title to the right secured by the exception, his successors in interest acquired no title to the same, although there was no reference to such right in their respective deeds.</p> <p>5. An aqueduct to the spring having been built and used by the grantor before he conveyed his premises, the right secured by the exception passed to his successors in interest as an appurtenance to the property conveyed; the deeds conveying ' the property described “with all the appurtenances thereof.”</p> <p>6. The right secured by the exception did not limit the grantor’s successor to the quantity of water required for household purposes at the time the exception was made, but entitled him to such water as was used for household purposes with modern conveniences and elsewhere on the premises at the time the suit was brought.</p>

■ Indictment for murder. Plea, not guilty. Trial by jury at the September Term, 1919, Washington County, Butter, J., presiding. Yerdict, guilty of murder in the second degree. Judgment on the verdict. The respondent excepted. The opinion states the case.

Original Petition to the Supreme Court of Orange County by Eugene D. Iiook for a writ of habeas corpus to secure the discharge of Emma Bagley Hook, an infant, from the Vermont Industrial School. The opinion states the ease.

<p>Action of Tort for assault and battery. Plea, tbe general issue. Trial by jury at tbe September Term, 1920, Windham County, Moulton, J., presiding. Verdict and judgment, for tbe plaintiff. Tbe defendant excepted. Tbe opinion states tbe case.</p>

<p>Original Petition to the Supreme Court for Orleans County under the provisions of Chapter 175 of the General Laws for the appointment of commissioners to locate the division line between the towns of Morgan and Brighton. Pleard on the commissioners’ report at the January Term, 1922.</p> <p>The material part of the report is as follows: “After careful and thorough investigation, your commissioners find that two blazed spruce stubs, both long dead, are undoubtedly, in their opinion,- of the age of marking done by Surveyor General James Whitelaw in his survey of the town of Caldersburgh into lots for tbe proprietors thereof in June, 1788, and that they designate points in the line of division between lots numbered 14 and 15 of the then town of Caldersbnrgh, which division line, by Act of Assembly, has now become the town line between Morgan and Brighton before named, and is the town line now in question.</p> <p>“Accordingly, we find that the true line between the aforenamed towns begins from an ancient birch stub (it having appeared in evidence that the original southwesterly corner of lot numbered 14 in range numbered 1 was a birch tree) standing in the original northeast line of Random at 1.94 chain northwest from the ‘Spruce marked M 13 on the northwest side of a Hill’ (as described by Surveyor General Whitelaw to be standing at 5 chains southeast from the original north corner of Random and south comer of Navy, recorded in Papers of the Surveyors-General, Volume 10, page 93), said birch stub being 0.06 chain northwest from a maple tree with witness trees and blazes upon-the four sides about 30 years old, thence the town line aforesaid to be by us determined runs north 52° 6' east (by the magnetic meridian of August, 1921) passing (at 64 chains) 15% feet northwest from the northwest end of a bridge 49 feet long spanning Pherring’s river and at 141.14 chains passing through one of the two spruce stubs above named as an original Whitelaw marked tree, and continues to a stake at 282 chains, where the line described intersects the southwest line of the Warren Gore.</p> <p>“The line above described we unanimously find to be the true present town line dividing Morgan and Brighton.”</p>

Information in five counts for procuring an abortion, under Gr. L. 7013. Plea, not guilty. Trial by jury at the March Term, 1921, Franklin County, Fish, J., presiding. Verdict and judgment of guilty. The respondent excepted. The opinion states the case.

Action op Contract. Plea, the general issue. Trial by-jury at the December Term, 1919, Windsor County, Stanton, J., presiding. Yerdiet and judgment for the plaintiff. The defendant excepted. The opinion states the ease.

Appeal in Chancery. Bill to establish the title to, and ownership of, a certain tract of mountain land. Heard on the report and supplemental report of a special master, and the exceptions thereto, at the March Term, 1921, Rutland County, Moulton, Chancellor. Decree for the defendant. The plaintiff appealed.

Action op Tort for negligence. Plea, tbe general issue. Trial by jury at the September Term, 1920, Windham County, Moulton, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

<p>Fraudulent Conveyances — Actual Fraud — Fraud in Law — Payment of Debt in Full Before Due.</p> <p>1. In a suit to have a transfer of money from plaintiff’s deceased husband to defendant declared fraudulent and void as to her as widow and as creditor of her husband’s estate, a finding that the deceased paid the money for the purpose of providing for the care and support of his mother, which he was legally and morally bound to provide, and that he had no intention to defraud the plaintiff, negatives the charge of actual or intentional fraud.</p> <p>2. Fraud is never presumed, and one seeking to set aside a conveyance on the ground that it was fraudulent must establish that fact clearly and conclusively.</p> <p>3. The transfer was not fraudulent in law as against plaintiff’s claim as a creditor of her husband’s estate, because, at the time the money was paid to the defendant, her husband had an estate remaining sufficient to pay all his debts, including her claim.</p> <p>4. The fact that a debtor is unable to pay all who have claims upon him in full does not make fraudulent his payment of one creditor in full.</p> <p>5. A debtor may always pay his debt, though not due, if the creditor will take his money, without violating the statute against fraudulent conveyances.</p>