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vt/11266918.json

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+"{\"id\": \"11266918\", \"name\": \"Robert Beach 2d v. Clarissa Beach and Walter Beach\", \"name_abbreviation\": \"Beach v. Beach\", \"decision_date\": \"1847-12\", \"docket_number\": \"\", \"first_page\": \"83\", \"last_page\": \"90\", \"citations\": \"20 Vt. 83\", \"volume\": \"20\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:29:58.878505+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robert Beach 2d v. Clarissa Beach and Walter Beach.\", \"head_matter\": \"Robert Beach 2d v. Clarissa Beach and Walter Beach.\\nIf the plaintiff in ejectment have title to the demanded premises at the time of the commencement of his action, and also at the time of trial, he is entitled to recover, notwithstanding there may have been an intervening period, during which he had no title, by reason of his having conveyed the premises to a third person'.\\nAnd if the plaintiff, during the pendency of the action, have taken possession of the premises, whether forcibly, or otherwise, and retained the possession until the time of trial, this will not deprive the plaintiff of his right to recover of the defendant damages for the vents and profits while the defendant was wrongfully in possession, notwithstanding it may appear, that the plaintiff, after ha took possession of the premises, conveyed the title to a third person, but acquired it again previous to the trial.\\nThe case of Burton v. Austin, 4 Vt. 105, considered, and its authority limited.\\nEjectment. Plea, the general issue, and trial by jury, September Term, 1846, \\u2014 Bennett, J., presiding.\\nOn trial it appeared, that, after the commencement of this suit, and about the first of April, 1845, the defendants, who had been in possession of the premises until that time, executed a written lease of the premises to certain tenants for one year, and that the lessees thereupon entered into the possession and remained until about the first of October, 1845, when, during their temporary absence, and while there was no person upon the premises, the plaintiff entered into the possession and retained it until the time of trial. The defendants also gave in evidence a deed of the premises, with covenants of warranty, executed by the plaintiff to one John A. Place, dated November 19, 1845, and subsequent to the time when the plaintiff entered into the possession. To the admission of this deed in evidence the plaintiff objected; but the objection was overruled by the court.\\nThe plaintiff then offered in evidence a deed of the premises from John A. Place to himself, dated March 11, 1846, and duly recorded. To the admission of this evidence the defendants objected; but the objection was overruled by the court.\\nThe defendants then introduced Place as a witness, and offered to prove by him, that the object of the deed from Place to the plaintiff was to enable> the plaintiff to recover in this suit, and that, by a parol agreement between Place and the plaintiff, that deed was only to operate as a mortgage; \\u2014 and this evidence was admitted, subject to the opinion of the court. Place testified, that, about the time of the date of his deed to the plaintiff, the plaintiff told him the premises were in suit, and he did not know whether he should hold the farm, or not, and wanted that he should give up the bargain and deed back the farm; and that he did so; that when he purchased of the plaintiff, he paid $600 of the purchase money and gave his notes to the plaintiff for the balance; and that when he deeded back, he received his notes, and the plaintiff was to repay to him the $600 and interest.\\nThe court instructed the jury, that, even if a recovery in this suit was an inducement on the part of the plaintiff to get back the premises, it would not defeat the plaintiff\\u2019s title under his deed from Place, and that, in the opinion of the court, the evidence was insufficient to show that the deed from Place to the plaintiff was a mortgage. The court also instructed the jury, that although the deed from the plaintiff to Place divested the plaintiff of his title, yet that his title would be restored by the deed from Place to him; and that the action would not be defeated by the plaintiff\\u2019s having parted with his title for the time intervening between these two deeds, if he had a good title at the commencement of the suit, and thence until and at the time of trial, with the exception of such intervening time. The jury were also instructed, that, if the plaintiff recovered, he was entitled to recover the rents and profits of the premises during the time while the defendants and their tenants were in possession, but not for any thing accruing subsequent to the time, when the plaintiff entered into the possession.\\nThe jury returned a verdict for the plaintiff for the premises, together with damages for the rents and profits to the time when the \\u2022plaintiff entered into possession. Exceptions by defendants.\\nBriggs & Underwood and Kasson & Buclcley for defendants.\\nThe plaintiff, having taken the law into his own hands and taken forcible possession of the premises, pending the suit, has obtained all for which the suit was brought, and is not entitled to a writ of possession against the defendants. Archb. PI. 329. Having parted with his title after he had taken forcible possession of the premises, his right to the possession was gone. If he recover at all, it must be upon the title he had at the time he commenced the suit, which must be kept good until the time of trial. Gibson v. Seymour et dl., 3 Vt. 565. Burton v. Austin et al., 4 Vt. 105. Jackson v. Rowland, 6 Wend. 666. A plaintiff in ejectment cannot purchase a title, pending the suit, upon which to recover. The deed from Place to the plaintiff was void for champerty; it was executed, with a knowledge, by each party to it, of the pendency of this suit, and for the purpose of strengthening the title upon which to sustain the suit. Jackson v. Fletcher, 8 Johns. 479. Jackson v. Andrews, 7 Wend. 152. Murray v. Ballou, 1 Johns. Ch. H. 573; 2 lb. 444. 2 Bac. Abr., (Bouvier\\u2019s Ed.) 182. 4 Bl. Com. 134.\\nIf the plaintiff is permitted to recover upon his new title, he should not recover rents and profits which did not accrue under it. The defendants have never held the premises against this title. When the plaintiff sold the premises, he deprived himself of the right to recover the past rents and profits in the action of ejectment, and would have been compelled to resort to the action for use and occupation; and, having separated the rents and profits from the action of ejectment, he cannot again attach them to it by a champ-ertous purchase of the premises.\\nA. Peck for plaintiff.\\nI. The entry into possession by the plaintiff in ejectment does not defeat the action.\\n1. The object of the action is two-fold, \\u2014 the recovery of possession and damages for the ouster, and, under our statute, the rents and profits also. The plaintiff has a right, at common law, to proceed to judgment, first, to recover his damages for the tort, secondly, to lay the foundation for an action of trespass for rents and profits ; and the reason is still stronger for sustaining the action in this state, as the plaintiff recovers rents and profits. It is like the re-caption of the property, pending an action of trespass de bonis as-yortatis; it only affects the damages. Barnes v. Beach et al., 18 Yt. 146.\\n2. If an actual entry and forcible expulsion of the defendants by the plaintiff, pending the action, would be a defence, the facts in this case cannot prejudice the plaintiff\\u2019s recovery, as the defendants had left the possession before the plaintiff\\u2019s entry; so that the plaintiff did not enter upon, or expel, the defendants, but mere strangers to the suit and the title, who had intruded, pending the action.\\nII. The facts, as to the conveyance of the premises by the plaintiff to Place and by Place back to the plaintiff, do not constitute a defence.\\n1. At common law, to maintain this action, it is not necessary, that the plaintiff should have title at the time of trial; it is only necessary, that he have title at the commencement of the action ; and if he have no title at the time of trial, he recovers judgment, but has no writ of possession. This is in analogy to other actions: when a debt is paid, or a cause of action is satisfied, pending suit, the plaintiff recovers nominal damages .and costs. 2 Stark, Ev. 404. Adams on Ej. 34. Dawson v. Porter, 2 Ham. 304. Doe d. Morgan v. Bluck, 3 Camp. 447. Thrustout v. Grey, 2 Str. 1056. The case of Doe d. Morgan v. Bluck was affirmed by the court of King\\u2019s Bench, on motion to set aside the verdict on this very point. The same doctrine is established in New York, even in a case, where, at the trial, the defendant had title. Jackson d. Henderson v. Davenport, 18 Johns. 295. The reason is stronger for sustaining the action in this state; since, instead of laying the foundation of an action of trespass for rents and profits, the recovery here includes rents and profits.\\n2. The decisions in this state do not go to the extent of defeating an action against a mere stranger, when the plaintiff is divested of his title before trial. Burton v. Austin et al., 4 Yt. 105, was ejectment by a mortgagee against a mortgagor, who at the same time brought a bill of foreclosure in chancery, and obtained a decree,\\u2014 which was paid by the defendant before trial in the ejectment; so that the defendant had the title. In Gatlin v. Washburn, 3 Vt. 25, it was held, that a decree of foreclosure against the plaintiff did not defeat the action; and in Gibson v. Seymour, 3 Vt. 565, it was held, that a deed, absolute in terms, but intended as a security, did not defeat the action. In those cases, where the plaintiff\\u2019s action has been defeated, it has appeared, not only that the plaintiff\\u2019s title was divested, but also that the title was in the defendant; and, as a recovery here is evidence of title, it may be a reason, why, in such case, judgment should be for the party having title at the trial. Originally the plaintiff in ejectment recovered nothing but damages, and had to resort to equity for a restitution of his land; but after-wards courts of law allowed a recovery of the land, as well as damages and costs. How, then, can the action fail, if the plaintiff had title at the time of ouster and at the commencement of the suit, although the title had expired at the time of trial ? 3 Bl. Com. 200.\\n3. But if it is indispensable to a recovery, that the plaintiff show title at the trial, it must be for the reason, that the recovery is, in this state, evidence of title; and no case goes farther, than to require title in the plaintiff at the commencement of the suit and at the time of trial; and this the plaintiff had in this case, \\u2014 having the same title at the trial, upon which the suit was brought. The same reason, \\u2014 the conclusive operation of the judgment upon the title,\\u2014 which forbids a recovery by the plaintiff,- when he has no title at the time of trial, forbids a recovery by the defendant in this case, when the plaintiff shows title at the time of trial.\", \"word_count\": \"3030\", \"char_count\": \"17057\", \"text\": \"The opinion of the court was delivered by\\nHall, J.\\nThe principal question in the case is, whether the\\nplaintiff, having parted with his title in the premises during the pen-dency of the action, but acquired it again before the trial, is thereby deprived of his right of recovery ?\\nIn Burton v. Austin, 4 Vt. 105, which was ejectment by a mortgagee, the title, during the pendency of the action, had passed to the mortgagor by a redemption of the land on a decree of foreclosure in chancery. The plaintiff having no title at the time of trial, it was clear he should not recover the land; but having had a good cause of action at the commencement of the suit, he claimed to recover nominal damages for the original trespass and his costs; and the county court allowed him to do so. This decision of the county court was in conformity to acknowledged principles in other actions; but the supreme court reversed the decision, and rendered judgment for the defendant; holding that damages, in the action of ejectment were not a distinct ground of action, but were merely accessory to the recovery of the land, \\u2014 that if the land was not recovered, damages could not be. This decision does not seem to be in accordance with the English doctrine.\\nThe English action of ejectment appears to have been originally devised, to enable the tenant of a leasehold estate to recover damages for an unlawful dispossession; and.for a long period damages alone were recovered. Afterwards the plaintiff was permitted to recover, not only for the trespass, by which he had been dispossessed, but also the term itself of which he had been deprived; and upon the judgment a writ of possession issued, as well as an execution for damages. The object of allowing the additional recovery of the land was to make the remedy more complete; and there does not seem to be any very obvious reason, why such additional recovery of the land might not be dispensed with,where the facts of the'case required it. I take the English law to be well settled, that a plaintiff in ejectment may recover damages for the ouster, although at the time of trial the term, of which he had been dispossessed, may have expired ; and that such recovery of damages, after the termination of the plaintiff's title, lays the foundation for an action for mesne profits, in which the plaintiff recovers for the use and occupation by the defendant, during the continuance of the plaintiff's title. Adams on Eject. 6, 34. Co. Lit. 385 a. 3 Bl. Com. 200. Bac. Ab., Ejectment F. Thrustout v. Grey, 2 Str. 1056. Doe d. Morgan v. Bluck, 3 Camp. 447. Robinson v. Campbell, 3 Wheat. 212. Jackson v. Davenport, 18 Johns. 295. Murray v. Gavretson, 4 Sergt. & R. 130. Brown v. Galloway, Pet. G. C. 291.\\nThe English rule seems best calculated to subserve the purposes of justice. In Burton v. Austin there was, perhaps, no great hardship on the plaintiff, who might have been pursuing two remedies on his mortgage unnecessarily ; but it is easy to conceive of cases* under the law there laid down, in which the most glaring injustice would be done. Where the title of the plaintiff in ejectment is a term, say of three or five years, of which he has been dispossessed at its commencement, if the trespasser upon his rights, by use of the numerous ingenious devices for increasing the law's delay, can succeed in postponing a final trial until the expiration of the term, it is obvious the result will be, that the defendant will freely enjoy the fruits of his trespass for the whole period, without account, and the plaintiff will not only lose the whole use of his land, but will moreover be compelled to indemnify the defendant for his misconduct, by paying his bill of costs. It is not intended to say, that there may not be reasons, arising out of the language of our statute, for sustaining the decision in Burton v. Austin; and perhaps it is now too late to question its authority. But, for the reasons already given, I do not think it ought to be extended to embrace cases not coming strictly within its doctrine.\\nThe doctrine, that a plaintiff in ejectment, in order to recover the land, must show a title at the time of trial, is well established, and is founded on the clearest principles of justice; for otherwise the defendant might be dispossessed, after he had become the real owner; and the judgment for the plaintiff, being conclusive between the parties as to the right, would fix the title in the plaintiff, though not the real owner. None of the cases in this state have, however, gone the length of declaring, that the plaintiff shall be precluded from a recovery, because of a temporary suspension of his title during the pendency of the action ; and neither the principles of law, nor the ends of justice, appear to demand such a decision. The substantive ground of the action of ejectment is the original dispossession of the plaintiff by the defendant; and the plaintiff's right of recovery is founded, as in England, upon his title at the commencement of the suit. In order to protect the rights of the defendant, it is also necessary, that the plaintiff should have title at the time of the judgment; and if the plaintiff have title at that time, a judgment in his favor cannot be justly complained of by the defendant.\\nIn this case, it is admitted, that the defendants ousted the plaintiff and held the possession for a time unlawfully, and that the. plaintiff had a perfect title at the time of trial. A judgment against the defendants will do them no injustice. It is admitted, they have no right to the possession and that the plaintiff has. Why, then, should not the judgment be according to the right of the case ? A judgment for the plaintiff is necessary, not only to do justice in regard to the damages, but also to preserve the title in the true owner; for if there be judgment for the defendant, it will, in effect, pass the title from the true owner to a mere intruder, \\u2014 the statute making the judgment in ejectment conclusive of the title between the parties.\\nThe fact, that the plaintiff, during the pendency of the action, took possession, whether forcibly, or otherwise, cannot purge the previous trespass of the defendant; and no damages having been recovered for rents and profits arising subsequent to the termination of the plaintiff's original title, the verdict is unobjectionable in that respect.\\nThe result is, that the judgment of the county court is affirmed.\"}"

vt/11267229.json

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+"{\"id\": \"11267229\", \"name\": \"Virgil H. Collins, administrator of Ransom Palmer, v. Bryan Lavelle\", \"name_abbreviation\": \"Collins v. Lavelle\", \"decision_date\": \"1872-01\", \"docket_number\": \"\", \"first_page\": \"230\", \"last_page\": \"234\", \"citations\": \"44 Vt. 230\", \"volume\": \"44\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:39:37.025292+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Virgil H. Collins, administrator of Ransom Palmer, v. Bryan Lavelle.\", \"head_matter\": \"Virgil H. Collins, administrator of Ransom Palmer, v. Bryan Lavelle.\\nDeed. Intent. Construction.\\nLeeds must be construed upon the view and comparison of the whole instrument with a view to give every part of it meaning and effect.\\nThe intent, when apparent and not repugnant to any rule of law, will control technical terms; for the intent and not the words is the essence of every agreement.\\nColby v. Colby, 28 Vt., 10, and Flagg, Admr., v. Barnes et al., 40 Vt., 16, referred to and approved, and held, that the condition of the deed in this case was such that the title was not to take effect in the grantee unless he should outlive the grantor.\\nThis was an action of ejectment to recover one undivided third of about 150 acres of land in the town of Richmond. Plea, the general issue, and trial by jury.\\nThe plaintiff put in evidence a warranty deed, in the usual form, of the premises in question, from Thomas Palmer to Ransom Palmer, with the following condition thereunder written above the signature: \\u201c Provided nevertheless and it is hereby further understood that this deed is to be upon the following conditions, (viz.): 1st. \\u2014 The said Thomas Palmer is to have and occupy the aforesaid granted premises during his natural life.\\n\\u201c And provided further, that if the said Ransom Palmer shall continue to live on and carry on with the said Thomas the farm where they now live, as they have done \\u2014 that is to say, the said Ransom receiving one quarter of the products of the said farm so long as the said Thomas is able and chooses to labor as he now does; and when the said Thomas shall become unable to labor or shall choose to give up labor, if the said Ransom shall carry on the farm in a good, husband-like manner during the life of the said Thomas, receiving therefor one half of the products of said farm, each party furnishing one half of all seed necessary for the use of said farm \\u2014 and if the said Ransom shall outlive the said Thomas, then this deed to be and remain in full force and virtue; and also if the said Thomas shall forbid or use undue means to prevent the said Ransom from quietly carrying on the premises aforesaid, then this deed to be in full force and virtue.\\n\\u201c Otherwise, on violation of any of the aforesaid conditions, to be null and void and of no effect. It is further understood that the lot of land on which the said Thomas\\u2019 house stands and the piece of land the said Ransom heretofore owned are not to be considered in this instrument.\\u201d\\nThe plaintiff also introduced evidence tending to show that Ransom Palmer, aforesaid, was the son of Thomas Palmer; that he became of age in the year 1845 ; that he remained at home, and worked for his father, until April first, 1848, when he took the deed above described, and that he entered under the deed, and occupied and worked on the land therein described, in common with his father, \\u2014 the son receiving one quarter of the products of the land \\u2014 and so continued till May 22d, 1858, when he died.\\nIt also appeared from the plaintiff\\u2019s evidence, that the said Ransom was sick for about two years next previous to his death, and that during his sickness he hired men at different times to do his share of the work on the land with his father.\\nThe evidence on the part of the plaintiff further showed that, after Ransom Palmer\\u2019s death, Thomas Palmer \\u2014 with the exception of a small amount of work done by the father-in-law of Ransom Palmer, immediately after his (Ransom\\u2019s) death \\u2014 solely carried on the whole 150 acres of land in question, and continued in the sole possession and management of it until his death, which took place in August, 1859; that it then passed into the sole possession of his executors, by whom it was duly disposed of in the settlement of his estate, and that by a regular chain of title from them, the title and possession thereof have come to the defendant, who was in possession when this suit was brought, and at the time of trial.\\nThe defendant, without offering any evidence, claimed that on the evidence offered by the plaintiff, the deed from Thomas Palmer to Ransom Palmer was defeated by the fact that the former outlived the latter, as above detailed, and asked the court to direct a verdict for the defendant.\\nThe court, \\u2014 at the April term, 1870, Pieijpoint, Ch. J., presiding \\u2014 pro forma, held that the plaintiff, on his evidence, was not entitled to recover, and directed a verdict for the defendant: to which the plaintiff excepted.\\nE. R. Hard and-Kennedy, for the plaintiff.\\nUpon the case stated in the exceptions, the court was not warranted in directing a verdict for the defendant. 1. The provisions contained in the deed respecting the occiqjation and management of the farm, the survivorship of Ransom Palmer, etc., are conditions subsequent. 1 Wash. R. P., 445. 2'. Such conditions are to be construed strictly against the party claiming-the benefit of them. 1 Wash. R. P., 447. 3 If the condition relative to Ransom\\u2019s outliving the grantor \\u2014 being the only one claimed to have been broken \\u2014 was not void from the outset, its performance became impossible by the act of Providence, which removed Ransom from life ; and the performance of the condition was thereby excused. 2 Cruise R. P., 37, note; 1 Wash. R. P., 447, 453; Merrill v. Emery, 10 Pick., 507. 4. If 'the death of Ransom Palmer was such a breach of condition as would work a forfeiture of the estate conveyed by the deed, such forfeiture could be made available only by a re-entry for condition broken, by the grantor or his heirs. This right of entry cannot be aliened or assigned. 1 Wash. R. P., 451; 2 Cruise R. P., 32, 33 ; Qhallcer v. Ohalker, 1 Conn., 79 ; Sperry v. Sperry, 8 N. EL, 477. 5. To complete the forfeiture \\u2014 if there was one in the present case \\u2014 and revest the title in Thomas Palmer, it was necessary that he should \\u2014after the death of Ransom \\u2014 Rave given notice to Ransom\\u2019s representatives, that a forfeiture was claimed; or at least that Thomas should have asserted such claim in such an open and public manner, that the representatives of Ransom would be presumed to have known of the claim. 2 Cruise R. P., 83, note, 87, note; Willard v. Henry, 2 N. EL, 120 ; Sperry v. Sperry, supra ; Stone v. Filis, 9 Cush., 95. 6. A forfeiture may be waived by any words or conduct of the party entitled to claim it, which indicate such an intention; and in some cases even where the intent to waive it does not, in fact, exist. 1 Wash. R. P., 454 ; Willard v. Henry, supra ; Sperry v. Sperry, supra.\\nW. Gc. Shaw, for the defendant.\", \"word_count\": \"1552\", \"char_count\": \"8606\", \"text\": \"The opinion of the court was delivered by\\nBarrett, J.\\nIn Jackson v. Myers, 3 Johns., 383, Kent, Ch. J., used this language : \\\" The intent, when apparent and not repugnant to any rule of law, will control technical terms; for the intent, and not the words, is the essence of every agreement. In the exposition of deeds, the construction must be upon the view and comparison of the whole instrument, and with a view to give every part of it meaning and effect.\\\" The idea thus expressed is adopted and carried into effect in the case of Flagg, adm'r., v. Fames et al., 40 Vt., 16 ; and in the opinion drawn up by #udge Kellogg, the whole subject is discussed with great fullness and ample learning. In Oolby v. Colby, 28 Vt., 10, there had been a practical application of the same doctrine, and to the same effect.\\nRegarding the true view of the law to be well settled by the cases above cited, we have in the present case but to make application of it, and educe the just result as between the parties.\\nIt seems to' us that the intent of both parties is clearly manifested by the instrument, and that such intent is' not repugnant to any rule of law. \\u2022\\nTwo leading objects seem to have been in view, viz.: 1st \\u2014 To secure such help to the father in carrying on the land as he might need, with a current compensation to the son for so doing in the share he was to have of the products; and 2d \\u2014 To give the property named in the deed to the son, in case he survived the father \\u2014 having complied with the condition as to helping do the work on the farm.\\nBut by the express provision of the deed, the title was not to take effect in the son unless he should outlive the father. The language is significant, and explicit:\\n\\\" Provided, nevertheless, and it is hereby further understood, that this deed is to be upon the following conditions, viz.: (see the provision of the deed, supra,') then this deed to be and remain,\\\" &c.\\nIn view of the instrument, there is little occasion to go into the learning of conditions precedent and subsequent. .\\nJudgment affirmed.\"}"

vt/11268232.json

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+"{\"id\": \"11268232\", \"name\": \"LEVI N. BARNARD'S ASSIGNEE, J. E. WHITE, v. C. A. HASKINS, APPELLANT\", \"name_abbreviation\": \"Barnard's Assignee v. Haskins\", \"decision_date\": \"1887-02\", \"docket_number\": \"\", \"first_page\": \"555\", \"last_page\": \"556\", \"citations\": \"59 Vt. 555\", \"volume\": \"59\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T20:11:28.653059+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LEVI N. BARNARD\\u2019S ASSIGNEE, J. E. WHITE, v. C. A. HASKINS, APPELLANT.\", \"head_matter\": \"LEVI N. BARNARD\\u2019S ASSIGNEE, J. E. WHITE, v. C. A. HASKINS, APPELLANT.\\nBanlcrxiptcy. Insolvency. Appeal. R. L., ss. 1862, 1864. Liens.\\nNo appeal is allowed by statute \\u2014 It. L., ss. 1802-4 \\u2014 from the decision of a judge of the Court of Insolvency as to the priority of liens on the insolvent\\u2019s estate, although there is from the decision of commissioners.\\nAiteal from tlie decision of the judge of the Court of Insolvency for the District of Windsor. Heard, May Term, 1886, Taet, J., presiding.\\nAppeal dismissed.\\nWm. Batchelder, for the defendant.\\nIt was plainly the intention of the legislature, by'the provisions of sections 1862, 1863, and 1864, to give ample opportunity for \\u00e1 fair trial of the questions of law and fact which were sure to arise in such cases.\\nThe appellant claims that it is a fair and proper construction of the statutes, taking the three sections together, that if it is held that the judge has jurisdiction to hear and decide these cases, that an appeal lies from his decision as much as from the decision of commissioners. That the sole object and intent of these three sections is to provide for an appeal in this kind of cases.\\nDavis & Enright and Jerome W. Pierce, for the assignee.\\nThe appeal of C. A. Haskins was properly dismissed by the County Court. The proceedings before the Court of Insolvency were under section 1862, R.-L.\\nThese proceedings in insolvency are wholly according to' the statute. Ripley v. Griggs, 52 Vt. 461.\\nNeither exceptions nor an appeal lies in insolvency proceedings unless expressly and affirmatively given by statute. In re Albert Bowles, 57 Vt. 386.\\nSuch is the construction in the Massachusetts Insolvency Laws. Bassett v. Hutchinson, 9 Allen, 199.\\nThe appeal by section 1864, R. L., is.only allowed upon the return of the decision of the commissioners.\", \"word_count\": \"609\", \"char_count\": \"3543\", \"text\": \"The opinion of the court was delivered by\\nPowers, J.\\nThe question argued before us is whether an appeal was allowable from the decision of the judge of the Court of Insolvency.\\nThe appellant claimed a priority of lien upon the assets of the insolvent. Section 1862, R. L., provides that in such cases if the priority is disputed, the judge in his discretion may, and upon the petition of the assignee or a creditor must, appoint commissioners to determine such dispute. By section 1864, either party may appeal from the decision of such commissioners. Such questions in the first instance, are before the j:udge for decision ; .but he, or the parties, may shift the responsibility upon commissioners. The statute provides for no appeal if the judge decides the question; and in this case he made the decision. It serves no useful purpose to wonder why the legislature provided an appeal in the one case and not in the other. Thus saith the scripture. The legislature created the court, gave it plenary jurisdiction in insolvency proceedings, and provided for appeals to the County Court in such instances as in its wisdom seemed best. So far as the statute accoi'ds an appeal so far only can it he had. None can exist exc\\u00e9pt as thus provided. The reason for this holding is, the whole procedure is statutory, and no appeal lies to any order unless given by the statute. This was the holding of the court in Massachusetts respecting their statute in Bassett v. Hutchinson, 9 Allen, 199; and the same holding was foreshadowed in Ripley v. Griggs, 52 Vt. 461; and In re Sowles, 57 Vt. 386.\\nThe judgment of the County Court dismissing the appeal is affirmed, and this judgment is ordered to be certified to the Court of Insolvency.\"}"

vt/11268356.json

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+"{\"id\": \"11268356\", \"name\": \"State v. Lester Abbott\", \"name_abbreviation\": \"State v. Abbott\", \"decision_date\": \"1848-04\", \"docket_number\": \"\", \"first_page\": \"537\", \"last_page\": \"538\", \"citations\": \"20 Vt. 537\", \"volume\": \"20\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:29:58.878505+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Lester Abbott.\", \"head_matter\": \"State v. Lester Abbott.\\nAn indictment for wounding \\u201c a steer,\\u201d without an allegation, that a steer is \\u201c cattle, or Least,\\u201d within the words of the statute, is sufficient.\\nIndictment for wounding and maiming a certain \\u201c red, three year old steer.\\u201d After a verdict of guilty, the respondent moved in arrest of judgment, for .the insufficiency-of the indictment; which motion was overruled by the court, April Term, 1845, \\u2014 Redfield, J., presiding. Exceptions by respondent.\\n- for respondent.\\nC. Reed, state\\u2019s attorney.\", \"word_count\": \"202\", \"char_count\": \"1220\", \"text\": \"The opinion of the court was delivered by\\nRedfield, J.\\nThe only question, raised in the present case, is in regard to the sufficiency of the indictment. It is for a violation of the statute against maiming, or wounding, cattle. The objection is, that the defendant is charged with wounding a steer, without alleging, that a steer is \\\" cattle, or other beast,\\\" \\u2014 which are the words of the statute. It is very possible, that some of the old cases may have adopted a degree of strictness, equal to this, even. But no modern case of this character existSj it is believed; but the contrary has often been decided.\\nJudgment that the defendant take nothing by his exceptions, or motion in arrest of judgment.\"}"

vt/1160114.json

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+"{\"id\": \"1160114\", \"name\": \"Lee WINEY v. Richard CUTLER d/b/a Cutler Construction Co., and Richard A. Cutler Construction Company, Inc.\", \"name_abbreviation\": \"Winey v. Cutler\", \"decision_date\": \"1996-04-30\", \"docket_number\": \"No. 95-167\", \"first_page\": \"566\", \"last_page\": \"568\", \"citations\": \"165 Vt. 566\", \"volume\": \"165\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T18:27:41.879271+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lee WINEY v. Richard CUTLER d/b/a Cutler Construction Co., and Richard A. Cutler Construction Company, Inc.\", \"head_matter\": \"Lee WINEY v. Richard CUTLER d/b/a Cutler Construction Co., and Richard A. Cutler Construction Company, Inc.\\n[678 A.2d 1261]\\nNo. 95-167\\nApril 30, 1996.\", \"word_count\": \"1310\", \"char_count\": \"8269\", \"text\": \"Plaintiff Lee Winey won a judgment for damages against Richard Cutler and his business (a sole proprietorship), the general contractor hired to build her home in Shaftsbury. See Winey v. William E. Dailey, Inc., 161 Vt. 129, 144-45, 636 A.2d 744, 754 (1993) (upholding judgment on appeal). This trustee action was brought against the corporation that now runs the business. Plaintiff proceeded in this collection action under 12 VS.A \\u00a7 3167-3171 (trustee process against earnings). The trial court granted trustee process. We affirm.\\nWhile Richard Cutler owns substantial assets, more than enough to pay this judgment, he has refused to pay and has sheltered his .assets from plaintiff's reach. Consequently, plaintiff has attempted to satisfy the judgment by seeking payments from a portion of Richard Cutler's earnings from the corporation. He and his wife, Deborah Cutler, jointly own 100% of the stock, and both work for the corporation. Between 1989 and 1993, the corporation paid Richard Cutler annual salaries ranging from a high of $280,000 to a low of $40,000 and Deborah $20,000 each year. Each salary was a once-a-year payment designated a bonus. At oral argument, defendant represented to the Court that currently no salary is paid to Richard, even though he works full time. His wife Deborah continues to receive a salary. Defendant claimed not to know whether Deborah's salary had substantially increased since Richard stopped receiving compensation.\\nThe court issued trustee process by determining that Richard Cutler earned an average of over $100,000 a year. It chose a conservative yearly net earnings figure of $40,000 plus $1,000 paid from a pension fund and ordered defendant to pay 25% of his weekly disposable earnings, calculated according to 12 VS.A. \\u00a7 3169-3170, to plaintiff. Defendant does not challenge the court's calculations.\\nDefendant agrees that plaintiff was entitled to an order of trustee process in this case except in one respect. It claims that plaintiff is not entitled to an order requiring defendant to pay her anything from Richard Cutler's wages if the corporation does not owe him any wages. Since the decision whether Richard is owed wages is controlled by him and his wife, defendant asserts any disbursements to Richard can either be diverted to Deborah or paid to Richard before plaintiff is able to \\\"attach\\\" the funds.\\nThe issue for us is a simple one: may trustee process against earnings be defeated as defendant proposes in cases where the judgment-debtor employee controls the corporate-trustee employer?\\nThe statutory scheme in issue allows trustee process only against earnings. \\\"Earnings\\\" is defined as \\\"compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.\\\" 12 YS.A. \\u00a7 3169(b)(1).\\nThe essence of defendant's argument rests on the definition of \\\"payable.\\\" It contends that \\\"earnings\\\" here were not \\\"payable\\\" unless and until the corporate employer declared them payable. Any reasonable construction of the term \\\"compensation paid or payable\\\" cannot include only \\\"declared amounts due\\\" because trustee process on earnings would become an elusive remedy. \\\"Compensation paid\\\" cannot simply mean money already paid to an employee, because that money is already in the employee's possession and is no longer available to be paid by the trustee to the judgment creditor. The phrase \\\"compensation paid,\\\" as used in the statute, must mean compensation ordinarily and regularly due the employee in the course of employment. The modifier \\\"payable,\\\" in similar fashion, must mean something different from \\\"compensation paid.\\\" The only reasonable interpretation of \\\"payable\\\" compensation is an amount to be determined based on future contingencies, such as the giving of bonuses and raises.\\nDefendant's argument is also predicated in part on a general trustee process provision, which states: \\\"A person shall not be adjudged a trustee by reason of any money or other thing due from him to the principal defendant, unless it is due absolutely and without contingency at the time of the service of the writ upon him . . . .\\\" 12 VS.A. \\u00a7 3019 (emphasis added). Section 3019, however, is not specifically applicable to earnings, and, even if it were, it contradicts the definition of earnings. See Lomberg v. Crowley, 138 Vt. 420, 423, 415 A.2d 1324, 1326 (1980) (specific statutes control over general statutes, and if two statutes deal with same subject matter, more recent controls).\\nThe statutory scheme on trustee process of earnings works well when the employer is not the \\\"alter ego\\\" of the employee. Where the employee and employer have an arm's length relationship, the employer serves merely as a collection conduit for the judgment creditor. The question remains, may the trustee process on earnings law be defeated when the judgment debtor is the alter ego of his corporate employer and the debtor's salary may be diverted to another? We do not think the Legislature intended that the law could be so easily evaded.\\nNo legitimate purpose of the corporate form of ownership and doing business contemplates the outcome defendant proposes. Although one purpose of corporation law is to limit shareholders' liability for corporate debts, and thereby encourage investment, see 11A YS.A. \\u00a7 6.22(b) (shareholder not personally liable for debts of corporation), corporations are not intended to be used to shelter the assets of shareholders from lawful claims of judgment creditors. In this case, the corporate form is being manipulated for just such a purpose. Defendant concedes that it has not paid Richard Cutler since the trustee process order became effective. The only reason defendant has stopped paying Richard Cutler is because it must pay plaintiff 25% of Richard Cutler's net disposable earnings. Richard Cutler loses nothing by not being paid any compensation because his earnings may be diverted to his wife and then deposited into their joint account. Thus, here, the corporate shell is used merely as a sham to deprive plaintiff of a remedy.\\nIf we sanction what defendant proposes, all judgment debtors who have sufficient influence over a corporate employer to control the payment of their compensation would be immune from trustee process of earnings. We have no evidence the Legislature had that result in mind in passing the law. See, e.g., Permian Petroleum Co. v. Petroleos Mexicanos, 934 F.2d 635, 643 (5th Cir. 1991) (\\\"The alter ego doctrine may also apply in 'reverse piercing' situations in which a party seeks to hold a corporation liable for the obligations of a shareholder.\\\"); Wm. Passalacqua Builders, Inc. v. Resnick Developers South, Inc., 933 F.2d 131, 141 (2d Cir. 1991) (court may disregard corporate form where excessive control causes complained of loss); United States v. Fidelity Capital Corp., 920 F.2d 827, 836-37 (11th Cir. 1991) (when person who owns or controls corporation uses corporate form to evade contract or tort responsibilities, court may pierce corporate veil to correct abuse); Wolfe v. United States, 798 F.2d 1241, 1243 (9th Cir. 1986) (corporation dominated by its owner may be disregarded under alter ego doctrine); Jack C. Keir, Inc. v. Robinson & Keir Partnership, 151 Vt. 358, 360, 560 A.2d 957, 959 (1989) (where recognition of corporate status would result in fraud or injustice, courts will pierce corporate veil).\\nPlaintiff is entitled to attorneys' fees and expenses. See Cameron v. Burke, 153 Vt. 565, 576, 572 A.2d 1361, 1367 (1990) (court may grant fees in exceptional eases as justice requires).\\nAffirmed. Defendant is ordered to pay all sums due under the trial court's order of trustee process plus interest at the legal rate and all reasonable attorneys' fees and expenses incwn-ed in this collection action since its inception, including those incurred in this appeal. Plaintiff shall submit an affidavit on attorneys' fees within ten days of this entry; defendant may respond to plaintiff's claim for fees and expenses within seven days thereafter.\"}"

vt/12461447.json

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+"{\"id\": \"12461447\", \"name\": \"Kenneth P. Felis v. Downs Rachlin Martin PLLC, and Gallagher, Flynn & Company, LLP\", \"name_abbreviation\": \"Felis v. Downs Rachlin Martin PLLC\", \"decision_date\": \"2015-10-16\", \"docket_number\": \"No. 15-092\", \"first_page\": \"465\", \"last_page\": \"490\", \"citations\": \"200 Vt. 465\", \"volume\": \"200\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-11T02:49:56.026793+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Dooley, Skoglund, Robinson and Eaton, JJ., and Morse, J. (Ret.), Specially Assigned\", \"parties\": \"Kenneth P. Felis v. Downs Rachlin Martin PLLC, and Gallagher, Flynn & Company, LLP\", \"head_matter\": \"2015 VT 129\\n[133 A.3d 836]\\nKenneth P. Felis v. Downs Rachlin Martin PLLC, and Gallagher, Flynn & Company, LLP\\nNo. 15-092\\nPresent: Dooley, Skoglund, Robinson and Eaton, JJ., and Morse, J. (Ret.), Specially Assigned\\nOpinion Filed October 16, 2015\\nJennifer B. Colin of Stackpole & French Law Offices, Stowe, for Plaintiff-Appellant.\\nEric S. Miller and Kevin A. Lumpkin of Sheehey Furlong & Behm, PC., Burlington, for Defendant-Appellee Downs Rachlin Martin PLLC.\\nMatthew B. Byrne and David A Boyd of Gravel & Shea, PC, Burlington, for Defendant-Appellee/Cross-Appellant Gallagher, Flynn & Company, LLP.\", \"word_count\": \"9082\", \"char_count\": \"55692\", \"text\": \"\\u00b6 1.\\nDooley, J.\\nThis case arises out of a divorce proceeding between plaintiff Kenneth Felis and his former wife, Vicki Felis. Defendant Downs Rachlin Martin PLLC (DRM) represented Ms. Felis in the divorce proceeding, and defendant Gallagher, Flynn & Company, LLP (GFC) was retained by DRM on behalf of Ms. Felis to prepare business valuations related to the proceeding. Plaintiff appeals the decision of the Chittenden Superior Court, Civil Division, granting defendants' motions to dismiss plaintiffs claims of fraud and breach of fiduciary duty based on DRM's representation of Ms. Felis. GFC cross-appeals the superior court's denial of its motion to strike pursuant to 12 V.S.A. \\u00a7 1041. We affirm.\\n\\u00b6 2. Plaintiffs complaint alleges the following, as relevant to this appeal. In January 2007, plaintiff commenced a contentious, multi-year, high-asset divorce proceeding against Ms. Felis. At the time of filing, the parties to the divorce had a minor child and a marital estate worth approximately twelve to fifteen million U.S. dollars in cash, assets, real property, and business interests. Both parties were represented by counsel throughout the duration of the proceeding. In February 2008, Ms. Felis hired DRM, a Vermont-based law firm, to represent her in the divorce; this representation continued until May 2011. DRM subsequently retained the services of GFC to appraise plaintiffs interest in several business enterprises.\\n\\u00b6 3. Plaintiff alleges that early on in the litigation \\\"[t]he red fee-building flag went up . in DRM's handling of the case\\\" when DRM twice asked the court for large distributions from the marital estate to pay legal fees and expenses, both of which the court granted. According to plaintiff, DRM's litigation strategy was to \\\"build its fees and harass and injure\\\" plaintiff by \\\"pursuing unreasonable legal positions, demanding extensive and unnecessary discovery, promoting and claiming outrageous asset valuations, raising claims without proper foundation . . . and billing excessive time.\\\"\\n\\u00b6 4. In November 2008 and January 2009, defendants filed documents with the court on Ms. Felis' behalf, claiming plaintiff wastefully dissipated millions of dollars from the marital estate. Plaintiffs counsel devoted extensive time producing detailed financial records for Ms. Felis and preparing accounting documents to defend against the claim. Plaintiff alleges that this claim was \\\"without proper cause and for improper and wrongful motive, namely to build fees and harass and injure\\\" him. After a hearing, the court found insufficient evidence to support the claim.\\n\\u00b6 5. Plaintiff also alleges that GFC's expert testimony on the valuation of his business was part of defendants' fee-maximization strategy. Specifically, he claims that years of discovery and hundreds of thousands of dollars were invested in analyzing the extensive financial and business information, but that \\\"DRM intentionally and wrongfully put up false expert testimony of GFC in an attempt to influence the court to improperly value [plaintiffs] business assets and achieve an exorbitant and outrageous property distribution for Ms. Felis that was not grounded in the law.\\\"\\n\\u00b6 6. At the close of the divorce proceeding, DRM billed Ms. Felis over $800,000 in attorney's fees, and GFC billed roughly $248,000 for its services. The family court found the fees unreasonable and awarded a substantially lower sum from the marital estate. Plaintiff alleges that DRM required Ms. Felis to sign an \\\"Acknowledgment\\\" agreeing to pay DRM any money distributed to her in the divorce order until DRM's bill was satisfied in full. Under the agreement, if those funds were insufficient, Ms. Felis was obligated to liquidate real estate and other assets awarded by the court in order to pay the bill. Plaintiff contends that this \\\"Acknowledgment\\\" \\\"demonstrates improper motive on the part of DRM to engage in protracted and vexatious litigation against [plaintiff] in order to build fees that would be paid through the marital estate.\\\"\\n\\u00b6 7. Finally, plaintiff alleges that, during the child-support hearing, DRM submitted to the court a false financial affidavit regarding Ms. Felis' indebtedness. He claims that \\\"DRM knowingly submitted false material evidence\\\" or \\\"participated in the submission of false material evidence\\\" to the court with the intent of improperly influencing the outcome of the trial, interfering with the court's impartial adjudication of the proceeding, procuring a strategic advantage, and causing damage and injury to plaintiff.\\n\\u00b6 8. Plaintiff filed suit in superior court. The complaint set forth extensive and detailed factual allegations but contained only one theory of liability, fraud, which was alleged in a short statement. DRM filed a motion to dismiss for failure to state a claim, V.R.C.P. 12(b)(6), on the ground that plaintiff failed to allege facts sufficient to support his fraud claim, and argued that the litigation privilege and collateral estoppel barred plaintiffs claims. GFC filed a similar Rule 12(b)(6) motion, as well as a motion to strike under 12 V.S.A. \\u00a7 1041 and motions to dismiss on witness immunity and collateral estoppel grounds. In his briefing to the superior court on the motions to dismiss, plaintiff additionally asserted a breach of fiduciary duty claim, upon which the superior court ruled.\\n\\u00b6 9. The superior court granted defendants' Rule 12(b)(6) motions, concluding that: (1) DRM owed no duty to plaintiff on which he could base a claim for breach of fiduciary duty; and (2) plaintiff failed to allege the necessary elements of fraud in his complaint. With respect to the fiduciary duty claim, the court stated that a party to litigation cannot assert negligence or breach of fiduciary duty against opposing counsel. The court also found no merit in plaintiffs argument that DRM owed a duty to the marital estate, reasoning that, because nearly all divorce proceedings result in fees being paid from the joint assets, adopting such a theory \\\"would mean that every litigant in every divorce case might have a claim against opposing counsel for breach of duty.\\\" With respect to the fraud claim, the court found that the plaintiff failed to allege that DRM directed the false statements to plaintiff, rather than the court, that he was unaware the statements were false, or that he relied on any allegedly false statements. Because the court dismissed plaintiffs claim on these grounds, it did not address the litigation privilege and collateral estoppel issues.\\n\\u00b6 10. The superior court also granted GFC's motion to dismiss on witness immunity grounds, concluding that witness immunity covers not just false testimony but also extends to conspiracies to present false testimony. Because the court found the claims against GFC barred by witness immunity, it concluded that the \\u00a7 1041 motion to strike was moot. This appeal followed.\\n\\u00b6 11. Plaintiff raises four main issues on appeal: (1) that his complaint supports a valid fraud claim; (2) that his complaint supports a valid claim for breach of fiduciary duty; (3) that his complaint states a cause of action for prima facie tort; and (4) that his claims are not barred by either witness immunity or litigation privilege. On cross-appeal, GFC raises two main issues: (1) that its motion to strike is not moot because it is entitled to attorney's fees and (2) that its testimony is protected under 12 V.S.A. \\u00a7 1041, the so-called anti-SLAPP statute.\\n\\u00b6 12. We review the superior court's decision on a motion to dismiss de novo, under the same standard as the trial court, and will uphold such a motion only if \\\"it is beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief.\\\" Birchwood Land Co. v. Krizan, 2015 VT 37, \\u00b6 6, 198 Vt. 420, 115 A.3d 1009 (quotation omitted). \\\"We assume as true all facts as pleaded in the complaint, accept as true all reasonable inferences derived therefrom, and assume as false all contravening assertions in the defendant's pleading! ].\\\" Id. We are limited to determining \\\"whether the bare allegations of the complaint are sufficient to state a claim.\\\" Id. (quotation omitted).\\n\\u00b6 13. We start with plaintiffs fraud claim. To maintain a cause of action for fraud, plaintiff must demonstrate five elements: \\\"(1) intentional misrepresentation of a material fact; (2) that was known to be false when made; (3) that was not open to the defrauded party's knowledge; (4) that the defrauded party act[ed] in reliance on that fact; and (5) is thereby harmed.\\\" Estate of Alden v. Dee, 2011 VT 64, \\u00b6 32, 190 Vt. 401, 35 A.3d 950. Failure to prove any one of the five elements defeats the fraud claim. Id. We focus on the third and fourth elements, which were central to the superior court's discussion. We conclude, as did the superior court, that plaintiff has failed to allege facts to support these two elements.\\n\\u00b6 14. With respect to the third element, plaintiffs knowledge of the alleged falsity, the statements in his complaint directly contradict the presence of this element. Plaintiff alleged that \\\"[t]he red fee-building flag went up early in DRM's handling of the case,\\\" and that \\\"DRM demonstrated from the outset of its representation . . . that its litigation strategy and plan was to build its fees and harass and injure\\\" him. Plaintiff further recounted his efforts defending against defendants' wasteful dissipation claim, pointing out errors in a tax form submitted by DRM on behalf of Ms. Felis, and successfully contesting GFC's business valuations. Moreover, much of plaintiffs complaint alleged DRM's demand for \\\"extensive and unnecessary discovery,\\\" even where \\\"significant discovery had already taken place.\\\" Drawing all reasonable inferences from these statements, plaintiff was fully aware of DRM's discovery practices early on. See Birchwood Land Co., 2015 VT 37, \\u00b6 6 (stating that courts \\\"accept as true all reasonable inferences derived\\\" from complaint); see also Scalisi v. Fund Asset Mgmt., L.P., 380 F.3d 133, 137 (2d Cir. 2004) (stating that courts \\\"are not required to accept as true the legal conclusions or unwarranted deductions of fact drawn by the non-moving party\\\").\\n\\u00b6 15. With respect to the fourth element, we find no allegation to support a claim that plaintiff relied on defendants' alleged misrepresentations. Plaintiff acknowledges that his complaint does not explicitly allege reliance, but he argues that reliance can be inferred \\\"from his participation in the legal process in which he was legally bound to engage in order to get divorced.\\\" Plaintiff grounds this argument in the Vermont Rules of Professional Conduct, which require that attorneys: (1) be candid with tribunals, V.R.Pr.C. 3.3(a)(1), (3); (2) deal fairly with opposing parties and their counsel, V.R.Pr.C. 3.4; (3) refrain from charging unreasonable fees, V.R.Pr.C. 1.5; and (4) refrain from knowingly making false statements to third parties, V.R.Pr.C. 4.1. He also relies on Vermont Rule of Evidence 702, which requires that experts base their testimony on \\\"sufficient facts or data\\\" and \\\"reliable principles and methods.\\\" None of this was alleged in the complaint. In essence, plaintiff asks us to assume reliance, but reliance is a required element of fraud that plaintiff has the burden to plead and prove \\\"with particularity.\\\" V.R.C.P. 9(b). Even if plaintiff had alleged this theory of reliance in his complaint, we would have difficulty finding it consistent with plaintiffs description of defendants' actions as outrageous, harassing, exorbitant, unnecessary, unreasonable, overzealous, false and egregious, and with our description of the case in our decision in the divorce appeal as \\\"vigorously contested.\\\" Felis, 2013 VT 32, \\u00b6 36.\\n\\u00b6 16. Plaintiff advances two additional theories of reliance, neither of which we find availing. First, he argues that his reliance \\\"arises from the fact that [defendants] intended for the Court and [plaintiff] to rely upon their invoicing and invited that reliance as part of their fraudulent scheme,\\\" which plaintiff contends \\\"is consistent with cases . in which courts have imposed a duty on an attorney to a non-client in situations where it was reasonably foreseeable that a third party would rely on the lawyer's representations.\\\" The first part of plaintiffs argument confuses defendants' intent and plaintiffs reliance. Defendants' intent in making the alleged misrepresentations says nothing about plaintiffs justifiable reliance, a required element of fraud. See Sugarline Assocs. v. Alpen Assocs., 155 Vt. 437, 445, 586 A.2d 1115, 1120 (1990) (stating that \\\"with any action in fraud\\\" plaintiff is required to show \\\"justifiable reliance upon the misrepresentation\\\" (quotation omitted)); Restatement (Second) of Torts \\u00a7 531 (1977) (requiring justifiable reliance for recovery under fraudulent misrepresentation).\\n\\u00b6 17. For the second part of his argument, plaintiff cites a string of cases, beginning with Hedges v. Durrance, 2003 VT 63, 175 Vt. 588, 834 A.2d 1 (mem.), a negligence case in which the plaintiff sued the attorney who represented her former husband in their divorce proceeding. During the proceeding, the attorney prepared a document for the sale of jointly owned property, and the plaintiff alleged that the document had been inaccurately prepared. We explained the general rule that an attorney owes no duty of care to a client's adversary in litigation, id. \\u00b6 6, but acknowledged an exception \\\"where the plaintiff is an intended third-party beneficiary to the attorney-client relationship \\u2014 in estate-planning and will-drafting cases for example,\\\" id. \\u00b6 7. Plaintiff appears to be arguing that he can use this exception to show reliance. We are uncertain how our duty analysis in a negligence case can be used to show reliance in a fraud case. In any event, this is not the kind of circumstance where plaintiff can be viewed as a third-party beneficiary of DRM's representation of Ms. Felis in a wholly adversarial proceeding. Plaintiffs third-party beneficiary argument provides no help to plaintiff in meeting his burden to show reliance.\\n\\u00b6 18. Plaintiffs second additional theory of reliance is that we should join the states that allow third-party reliance to meet the reliance element of a tort claim. See, e.g., Prestige Builder & Mgmt. LLC v. Safeco Ins. Co., 896 F. Supp. 2d 198, 203-05 (E.D.N.Y. 2012) (applying New York law); Bardes v. Mass. Mut. Life Ins. Co., 932 F. Supp. 2d 636, 639-40 (M.D.N.C. 2013) (applying North Carolina law). In making this argument, plaintiff acknowledges that other states have rejected this theory and that we have not yet ruled on it. Very recently, however, we did rule on this in the context of negligent misrepresentation, holding that third-party reliance, without direct reliance by the plaintiff, was insufficient to satisfy the reliance requirement. Glassford v. Dufresne & Assocs., 2015 VT 77, \\u00b6 22-23, 199 Vt. 422, 124 A.3d 822.\\n\\u00b6 19. We can infer from plaintiffs argument that he is claiming any reliance by the court that harmed him as a litigant satisfies the reliance element of a fraud claim. Again, plaintiff never alleged that the court relied on the evidence submitted by defendants. Rather, he repeatedly states in his complaint that the court discredited defendants' evidence and arguments. This argument essentially would emasculate the reliance element in the context of litigation, giving one side an opportunity to relitigate the substance of the adversary's case in a suit against the adversary's attorney. What plaintiff appears to be asserting here is \\\"fraud on the court,\\\" which involves a party's attempt to improperly influence the court through such conduct as fabrication of evidence. Godin v. Godin, 168 Vt. 514, 519, 725 A.2d 904, 908 (1998). Although a court can vacate a judgment based on a finding of fraud on the court, a party cannot bring a private cause of action for tort under this theory. See V.R.C.R 60(b)(8) (providing relief from judgment for \\\"fraud . . . , misrepresentation, or other misconduct of an adverse party\\\"); Interstate Fire & Cas. Co. v. 1218 Wis., Inc., 136 F.3d 830, 836 (D.C. Cir. 1998) (stating that plaintiff cannot claim damages in tort for \\\"fraud upon the court\\\" because remedy lies within court's equitable power to revise judgment).\\n\\u00b6 20. The main weakness in plaintiffs argument, however, is the theory that the court relied on defendants' evidence in making rulings that injured plaintiff. Although the word \\\"reliance,\\\" in its broadest sense, may apply to the court's actions, the court's decision is based on adversary presentations on relevant issues, a characteristic missing from the cases cited by plaintiff. For example, in Prestige Builder & Management, the plaintiff, a subcontractor on a project to build an amphitheater for a city, sued employees of the prime contractor who allegedly fraudulently certified to the city that all subcontractors had been paid, when in fact $134,927 was owed to the plaintiff, causing the city to release funds to the prime contractor without ensuring the plaintiff had been paid. 896 F. Supp. 2d at 200-01. We can find no case where a court has accepted a third-party reliance claim on the basis that the reliance was by the court and the plaintiff was a litigant who had a full opportunity to respond to the allegedly fraudulent evidence. We need not determine whether we ever would accept a third-party reliance theory in a fraud case to hold that we would not accept it on the factual situation here.\\n\\u00b6 21. We turn next to plaintiffs claim that DRM breached a fiduciary duty to plaintiff. It is well established that an attorney owes no duty to an adverse party. Hedges, 2003 VT 63, \\u00b6 6. \\\"This privity rule ensures that 'attorneys may in all cases zealously represent their clients without the threat of suit from third parties compromising that representation.' \\\" Id. (quoting Bovee v. Gravel, 174 Vt. 486, 488, 811 A.2d 137, 140 (2002) (mem.)). The rationale behind this policy is particularly salient \\\"where, as here, the third party is the client's adversary who is also represented by her own counsel in the proceedings.\\\" Id. Plaintiff seems to accept this rule on appeal and instead advances the theory that DRM's duty arises from the marital estate. Plaintiff asserts that \\\"Vermont law is clear that when two people jointly own property, such as cash and/or property in a marital estate, they owe one another fiduciary duties that arise from the co-ownership of the common estate.\\\" He further asserts that those duties flow to their agents or representatives \\u2014 here DRM.\\n\\u00b6 22. Even if we assume that plaintiff and Ms. Felis owed to one another fiduciary duties by way of the marital estate, and that those duties flowed to their attorneys, this argument fails. Beyond asserting these duties, plaintiff's argument is not entirely clear. He cites the Restatement (Second) of Torts for the proposition that \\\"[a] person who knowingly assists a fiduciary in committing a breach of trust is himself guilty of tortious conduct and is subject to liability for the harm thereby caused.\\\" Id. \\u00a7 874 cmt. c (1979). It appears plaintiff is arguing that DRM assisted Ms. Felis in breaching her duty to plaintiff, by way of the marital estate. This argument has no merit.\\n\\u00b6 28. Ms. Felis was required to pay the attorney's fees out of her distribution from the marital estate, and plaintiff has not alleged that she encouraged or otherwise supported DRM's alleged conduct in extending legal services that did not benefit her, or that she participated at all in this scheme. As plaintiff states in his brief to this Court, DRM engaged in \\\"self-dealing to unjustifiably enrich [itself] from the marital estate.\\\" We previously have explained that the agency relationship is effectively destroyed \\\"[w]hen an agent's interests in the subject matter are . . . adverse\\\" to the principal. Mann v. Adventure Quest, Inc., 2009 VT 38, \\u00b6 12, 186 Vt. 14, 974 A.2d 607 (citing Restatement (Third) of Agency \\u00a7 5.04 (2006)); see also Restatement (Third) of Agency \\u00a7 7.08(2)(a). If, as plaintiff alleges, DRM was engaged in self-dealing, this was outside the scope of its representation of Ms. Felis and did not involve her or her fiduciary duties to plaintiff.\\n\\u00b6 24. In considering other potential avenues for plaintiffs breach-of-duty argument, we draw upon our decision in Hedges, 2003 VT 63, the facts of which are set out above, supra, \\u00b6 17. We explained in that decision that, to maintain such an action against another party's attorney, the third party must demonstrate that \\\"the primary purpose and intent of the attorney-client relationship itself was to benefit or influence the third party.\\\" Hedges, 2003 VT 63, \\u00b6 7 (quotation omitted). The basis of the ex-wife's claim was that, because the ex-husband's attorney, in drafting the documents, was performing \\\"a service which both parties to that proceeding wanted and needed to have performed,\\\" she was a third-party beneficiary. Id. \\u00b6 8. We rejected her argument, stating that we will not \\\"separate the trees from the forest by reviewing [the attorney's] actions in drafting the deed independently of the larger adversarial context that necessitated defendant's actions in the first place \\u2014 the divorce.\\\" Id.\\n\\u00b6 25. We think Hedges is persuasive in this context, as the crux of plaintiffs argument appears to be that he became a third-party beneficiary of the attorney-client relationship between DRM and Ms. Felis based on DRM's handling of the marital estate and the duty of care owed to the estate. As in Hedges, the context here is a divorce proceeding, and we will not review DRM's alleged duty of care to the marital estate \\\"independently of the larger adversarial context.\\\" Id. We therefore affirm the judgment of the superior court that plaintiff has failed to state a claim for breach of fiduciary duty.\\n\\u00b6 26. We turn next to plaintiffs prima facie tort claim. Under the law of several states, a harm intentionally inflicted on another without justification is prima facie actionable. See, e.g., Vasile v. Dean Witter Reynolds Inc., 20 F. Supp. 2d 465, 497 (E.D.N.Y. 1998); see also Restatement (Second) of Torts \\u00a7 870 (\\\"One who intentionally causes injury to another is subject to liability to the other for that injury, if his conduct is generally culpable and not justifiable under the circumstances. This liability may be imposed although the actor's conduct does not come within a traditional category of tort liability.\\\"). Although other state courts have adopted prima facie tort liability under \\u00a7 870, this Court has yet to do so. See Fromson v. State, 2004 VT 29, \\u00b6 20, 176 Vt. 395, 848 A.2d 344 (observing that this Court has never decided whether to recognize prima facie tort liability). Plaintiff argues that we should adopt it here.\\n\\u00b6 27. Plaintiff never argued below that defendants could be found liable on a theory of prima facie tort. He therefore waived it on appeal. See O'Rourke v. Lunde, 2014 VT 88, \\u00b6 21, 197 Vt. 360, 104 A.3d 92. In his reply brief, however, he urges us to remand to allow him to add a new count to his complaint alleging prima facie tort pursuant to V.R.C.P. 15(a). We held in Desrochers v. Perrault, 148 Vt. 491, 494, 535 A.2d 334, 336 (1987), that Rule 15(a) did not allow \\\"a post-judgment amendment which brings in an entirely extrinsic theory.\\\" More recently, in Northern Security Insurance Co. v. Mitec Electronics, Ltd., 2008 VT 96, \\u00b6 39, 184 Vt. 303, 965 A.2d 447, we held that the right of plaintiff \\\"to amend the complaint under Rule 15 terminated when judgment was entered.\\\" These rulings are consistent with those from the federal courts under the similar federal rule. See F.R.C.P. 15(a)(3); 6 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Civil \\u00a7 1489, at 814 (3d ed. 2010) (\\\"Most courts faced with the problem [of a motion after a judgment has been entered or an appeal has been taken] have held that once a judgment is entered the filing of an amendment cannot be allowed until the judgment is set aside or vacated under Rule 59 or Rule 60.\\\"). Plaintiffs invocation of Rule 15(a) comes too late in the process for us to give him the relief he seeks.\\n\\u00b6 28. Finally, we address GFC's motion to strike pursuant to 12 V.S.A. \\u00a7 1041, the anti-SLAPP statute. The superior court never ruled upon GFC's motion, concluding that, because it granted GFC's motion to dismiss plaintiffs claims on the merits, the counterclaim was moot. GFC argues that the case is not moot because it is entitled to an award of attorney's fees if it would have prevailed under \\u00a7 1041. \\\"A case is moot if the reviewing court can no longer grant effective relief.\\\" In re Moriarity, 156 Vt. 160, 163, 588 A.2d 1063, 1064 (1991) (quotation omitted). Although the court dismissed plaintiffs suit against GFC on other grounds, GFC still is entitled to relief in the form of attorney's fees if successful in dismissing plaintiffs suit under the statute. 12 V.S.A. \\u00a7 1041(f)(1); see Merriam v. AIG Claims Servs., Inc., 2008 VT 8, \\u00b6 10, 183 Vt. 568, 945 A.2d 882 (mem.) (stating that case is not moot because \\\"the attorney's fees still present a live controversy\\\"). We agree that GFC is entitled to a ruling on its motion and that the motion is not moot. We have the option of remanding the case to the superior court to consider the motion in the first instance or conducting our own review. We choose the latter option because the parties have briefed the applicability of the statute, we can decide the issue based on a question of law on which the standard of review is de novo, and we can avoid the accrual of even more attorney's fees for the parties.\\n\\u00b6 29. This is our first opportunity to construe Vermont's anti-SLAPP statute, although it has been in effect for almost ten years. The statute is based upon two legislative findings:\\n(1) There has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and freedom to petition the government for the redress of grievances.\\n(2) It is in the public interest to encourage continued participation in matters of public significance, and this participation should not be chilled through abuse of the judicial process.\\n2005, No. 134 (Adj. Sess.), \\u00a7 1. In a hearing on the anti-SLAPP bill before the Senate Judiciary Committee, citizens and legal experts testified to the importance of protecting free speech in matters of \\\"public interest and government decisionmaking,\\\" particularly in areas of land use and zoning, permitting and regulatory matters affecting communities, and public health and quality of life. Hearing on S. 103 before Senate Judiciary Committee, 2005-2006 Bien. Sess. (Vt. Mar. 2, 2006) [hereinafter \\\"Hearing on S. 103\\\"]. As explained, \\\"when [citizens] participate [in such matters], they are subject to suit by parties opposed to their interests in public participation.\\\" Id. In this way, parties with financial means are able to use litigation to intimidate others into silence. Id.\\n\\u00b6 30. Additionally, on April 11, 2006, the House Judiciary Committee delivered a floor report to the House, discussing the increase in SLAPP lawsuits over the previous twenty years. The report stated:\\nThese are lawsuits filed in response to or in retaliation for citizen communication with government entities or employees. People have been sued for testifying before their city councils, zoning commissions, and school boards and for reporting violations of environmental laws to regulatory agencies. SLAPP suits are intimidating, punishing and expensive for ordinary citizens to fight. . . . The objective of this bill is to help protect Vermonters' First Amendment rights and to prevent the misuse of the courts as a vehicle to punish people for expressing their opinions on issues of public interest.\\nReport to the House on S. 103 SLAPP-Suit Bill, at 1 (April 11, 2006) [hereinafter \\\"Report\\\"] (emphasis added).\\n\\u00b6 31. Roughly half the states have adopted anti-SLAPP statutes based generally on the same paradigm. See Report at 2; see also C. Barylak, Reducing Uncertainty in Anti-SLAPP Protection, 71 Ohio St. L.J. 845, 847 n.8 (2010) (listing twenty-seven states having anti-SLAPP statutes as of 2010); M. Sobczak, Slapped in Illinois: the Scope and Applicability of the Illinois Citizen Participation Act, 28 N. Ill. U.L. Rev. 559, 576 n.149 (2008) (citing anti-SLAPP statutes). Vermont's statute was based primarily on the language of California's 1992 statute, but also contains language from the Massachusetts statute. Report at 2; Hearing on S. 103 (statement from Legislative Counsel).\\n\\u00b6 32. Under \\u00a7 1041(a), a SLAPP suit is \\\"an action arising from defendant's exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances under the U.S. or Vermont Constitution.\\\" 12 V.S.A. \\u00a7 1041(a). The statute accomplishes its purpose by authorizing the defendant in an alleged SLAPP suit to bring a special motion to strike within sixty days after the filing of the complaint. Id. \\u00a7 1041(b). The plaintiff then has fifteen days to answer. Id. The filing of the motion normally stops all discovery until it is addressed, id. \\u00a7 1041(c)(1), and a court must hold a hearing on the motion within thirty days unless the period is extended because \\\"good cause exists.\\\" Id. \\u00a7 1041(d). The motion is decided on the \\\"pleadings and supporting and opposing affidavits,\\\" id. \\u00a7 1041 (e)(2), and must be granted unless the plaintiff shows \\\"the defendant's exercise of his or her right to freedom of speech and to petition was devoid of any reasonable factual support and any arguable basis in law\\\" and \\\"the defendant's acts caused actual injury to the plaintiff.\\\" Id. \\u00a7 1041(e)(1)(A), (B). If the court grants the motion to strike, it \\\"shall award costs and reasonable attorney's fees to the defendant.\\\" Id. \\u00a7 1041(f)(1). If the court denies the motion as \\\"frivolous\\\" or \\\"intended solely to cause unnecessary delay,\\\" it must award attorney's fees and costs to plaintiff. Id.\\n\\u00b6 33. In this case, GFC timely filed a motion to strike accompanied by affidavits and other voluminous supporting material. Plaintiff timely filed a response, asserting that his action was not a SLAPP suit under the statute, requesting a hearing on that question, and requesting an additional sixty days to respond to GFC's factual materials if the court ruled that the action was a SLAPP suit. As noted above, the superior court never acted on the motion to strike or the response, finding it moot.\\n\\u00b6 34. The issue before us turns on whether plaintiffs action is a SLAPP suit, as defined under \\u00a7 1041. This requires that we determine the meaning of the language contained in \\u00a7 1041(a), which we set out above, supra., \\u00b6 32. This language is further defined in \\u00a7 1041(i), and the interplay between subsections (a) and\\n(i)is at the heart of the question before us. Section 1041(i) specifies that \\\"the exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances . . . includes\\\":\\n(1) any written or oral statement made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;\\n(2) any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other proceeding authorized by law;\\n(3) any written or oral statement concerning an issue of public interest made in a public forum or a place open to the public; or\\n(4) any other statement or conduct concerning a public issue or an issue of public interest which furthers the exercise of the constitutional right of freedom of speech or the constitutional right to petition the government for redress of grievances.\\n\\u00a7 1041(f).\\n\\u00b6 35. GFC contends that the plain language of \\u00a7 1041(i)(l), which extends the protections of the statute to \\\"any written or oral statements made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law,\\\" covers its testimony in the divorce proceeding. This argument assumes that the element \\\"in connection with a public issue,\\\" which is stated in \\u00a7 1041(a) and in \\u00a7 1041(i), is not additionally required. Whether that element is required is the main statutory construction question of this case. We conclude that the statute requires all actions to be \\\"in connection with a public issue\\\" and hold that because GFC's testimony was not connected with a public issue, the anti-SLAPP statute is not applicable.\\n\\u00b6 36. As noted above, the question of whether \\u00a7 1041 protects GFC's testimony is a matter of statutory interpretation, which we review de novo. Stowell v. Action Moving & Storage, Inc., 2007 VT 46, \\u00b6 9, 182 Vt. 98, 933 A.2d 1128. Our goal in interpreting a statute is to effectuate the intent of the Legislature. Id. Where the statute is unambiguous on its face, we enforce it \\\"according to its terms.\\\" In re Hinsdale Farm, 2004 VT 72, \\u00b6 5, 177 Vt. 115, 858 A.2d 249. If there is any uncertainty about legislative intent, \\\"we look to the words of the statute itself, the legislative history and circumstances surrounding its enactment, and the legislative policy it was designed to implement.\\\" Perry v. Vt. Med. Practice Bd., 169 Vt. 399, 406, 737 A.2d 900, 905 (1999).\\n\\u00b6 37. We return to the text of the statute, as relevant here. Section 1041(a) provides that the statute applies to actions \\\"arising from the defendant's exercise, in connection with a public issue,\\\" of free speech and petitioning rights. Section 1041(i), in turn, lists four specific types of activity that fall within the language of \\u00a7 1041(a) \\u2014 the \\\"exercise, in connection with a public issue,\\\" of free speech and petitioning rights. The descriptions of the activities set forth in \\u00a7 1041(i)(3) and (4) expressly include the element \\\"concerning an issue of public interest.\\\" The descriptions of the activities in \\u00a7 1041(i)(l) and (2) \\u2014 including the activity applicable here, testimony in a judicial proceeding \\u2014 do not contain that element. GFC therefore argues that the statute does not require testimony in a judicial proceeding to concern a public issue. To put it another way, GFC reads the statute to mean that all testimony in a judicial proceeding inherently concerns a public issue.\\n\\u00b6 38. We acknowledge that GFC's reading of the statute is the most consistent with the language of \\u00a7 1041(i), and it also has other strong support. This reading has been adopted by the United States District Court for the District of Vermont in Ernst v. Kauffman, 50 F. Supp. 3d 553, 558-59 (D. Vt. 2014), based not only on the plain language, but also on the interpretation of nearly identical language by the California courts. The district court held that a defendant need not demonstrate that a statement concerns a public issue if it falls within \\u00a7 1041(i)(l) or (2). Id. More importantly, the California Supreme Court adopted this construction with respect to the California statute in a decision that preceded the enactment of the Vermont statute, Briggs v. Eden Council for Hope & Opportunity, 969 P.2d 564 (Cal. 1999), discussed in detail below. See infra, \\u00b6 42-45. Generally, when the Legislature models a statute on that of another state, \\\"the presumption is that the Legislature adopted the [preceding] construction given the statute by the courts of the other jurisdictions,\\\" Lavalley v. E.B. & A.C. Whiting Co., 166 Vt. 205, 209, 692 A.2d 367, 369 (1997) (alteration and quotation omitted), absent some attendant statutory provisions or other countervailing evidence to rebut the presumption, Giguere v. E.B. & A.C. Whiting Co., 107 Vt. 151, 157-58, 177 A. 313, 316 (1935); see also Hartnett v. Union Mut. Fire Ins. Co., 153 Vt. 152, 155, 569 A.2d 486, 487 (1989) (noting presumption that Legislature adopted construction given statute by courts of other state is rebuttable). That presumption applies here.\\n\\u00b6 39. A number of weighty considerations, however, support the opposite view \\u2014 that all activities protected by \\u00a7 1041 must concern a public issue. First, the California construction is inconsistent with the language of subsection (a), which governs the scope of the statute generally and requires the defendant's exercise of constitutional rights be in connection with a public issue. The language on which GFC relies in subsection (i) relates to the place or context in which a statement is made, rather than content of the statement. For this reason, the statute is internally inconsistent and ambiguous.\\n\\u00b6 40. Where statutory provisions are in conflict, we must look beyond the plain language of the statute. As we previously have stated:\\nWhen the plain meaning of statutory language appears to undermine the purpose of the statute, we are not confined to a literal interpretation, but rather must look to the broad subject matter of the statute, its effects and consequences, and the purpose and spirit of the law to determine legislative intent.\\nTown of Killington v. State, 172 Vt. 182, 189, 776 A.2d 395, 401 (2001); see also Delta Psi Fraternity v. City of Burlington, 2008 VT 129, \\u00b6 7, 185 Vt. 129, 969 A.2d 54 (explaining that plain language of statute must not be \\\"inconsistent with . . . other expressions of legislative intent\\\" (citations and quotation omitted)); In re Preseautt, 130 Vt. 343, 348, 292 A.2d 832, 835 (1972) (\\\"When the provisions of a law are inconsistent, effect must be given to those which harmonize with the context and the apparent intent of the legislature.\\\"); cf. Wesco, Inc. v. Sorrell, 2004 VT 102, \\u00b6 14, 177 Vt. 287, 865 A.2d 350 (noting that \\\"we favor interpretations of statutes that further fair, rational consequences\\\" (quotation omitted)). As the \\\"purpose and spirit of the law\\\" is embodied in subsection (a), which specifies the public issue element, a broad reading of the categories under (i)(l) and (i)(2) would undermine that purpose and spirit.\\n\\u00b6 41. Ordinarily, we would give remedial legislation, like the anti-SLAPP statute, a liberal construction. See Raynes v. Rogers, 2008 VT 52, \\u00b6 15, 183 Vt. 513, 955 A.2d 1135. Here, however, the statute is attempting to define the proper intersection between two constitutional rights \\u2014 a defendant's right to free speech and petition and a plaintiffs right to petition and free access to the courts. See Duracraft Corp. v. Holmes Prods. Corp., 691 N.E.2d 935, 943 (Mass. 1998) (\\\"By protecting one party's exercise of its right of petition, unless it can be shown to be sham petitioning, the statute impinges on the adverse party's exercise of its right to petition, even when it is not engaged in sham petitioning.\\\"). As the Massachusetts court noted in Duracraft, \\\"[t]his conundrum is what has troubled judges and bedeviled the statute's application.\\\" Id. We are convinced that in this circumstance an overly broad interpretation of the statute would be inappropriate. Indeed, we join the Rhode Island Supreme Court in concluding that the anti-SLAPP statute should be construed as limited in scope and that great caution should be exercised in its interpretation. See Sisto v. Am. Condo. Ass'n, 68 A.3d 603, 615 (R.I. 2013).\\n\\u00b6 42. We return to Briggs v. Eden Council for Hope & Opportunity, the California Supreme Court decision that construed the language of the California statute before the Vermont Legislature modeled \\u00a7 1041 on the California statute. At the time of the decision, the California appellate courts were split over whether the statute required the exercise of constitutional rights concerning a public issue. The leading decision was Zhao v. Wong, 55 Cal. Rptr. 2d 909 (Ct. App. 1996), which held that \\\"[t]he statute represents a clear recognition of the need to provide maximum protection of a citizen's right to exercise free speech and petition where such rights are exercised in relation to issues of public concern.\\\" Id. at 915.\\n\\u00b6 43. The California Supreme Court disagreed with the Zhao holding and based its decision on the language of the statute, the legislative intent as expressed in a preamble to the statute, and the public policy involved. With respect to the legislative intent, the California high court relied on an amendment to the preamble providing that the statute \\\"shall be construed broadly.\\\" Briggs, 969 P.2d at 572 (quotation omitted). The court concluded that the amendment was intended to overrule a number of holdings narrowly interpreting the statute, including that in Zhao. Indeed, the court cited analysis from the California Assembly Judiciary Committee confirming \\\"the amendment was intended specifically to overrule Zhao\\\" as well as the appellate court ruling in the case before it. Id. at 573. Thus, the high court concluded that the legislative intent was to protect \\\"all direct petitioning of governmental bodies (including . . . courts and administrative agencies) and petition-related statements and writings,\\\" regardless of the subject matter. Id. at 574.\\n\\u00b6 44. As a matter of public policy, the California Supreme Court concluded that the bright line created by its decision was desirable as a matter of judicial efficiency and that \\\"straining to construe the statute as the Court of Appeals did would serve Californians poorly.\\\" Id. The court added that it had \\\"no reason to suppose the Legislature failed to consider the need for reasonable limitations on the use of special motions to strike.\\\" Id. at 575.\\n\\u00b6 45. Two justices dissented from the decision in Briggs, primarily because the effect of the majority's construction of the statute \\u2014 \\\"that every lawsuit based on any actionable word uttered in connection with any legislative, executive, judicial, or other 'official' proceeding in the State of California will henceforth, as a matter of law, be deemed a retaliatory SLAPP suit,\\\" id. at 584 (Baxter, J., dissenting) \\u2014 will allow the use of the extraordinary remedy \\\"in a great number of cases to which it was never intended to apply.\\\" Id. at 576 (Baxter, J., dissenting).\\n\\u00b6 46. On the legislative history and public policy points integral to the Briggs decision, the Vermont context and experi ence is very different. We conclude that this difference is sufficient to overcome the presumption that the Vermont Legislature adopted the California statutory provision as interpreted by Briggs. See Giguere, 107 Vt. at 157-58, 177 A. at 316 (presumption that Legislature adopted construction is rebuttable). As we set out above, supra, \\u00b6 29, the Legislature made two findings that explain its intent in enacting the anti-SLAPP statute. The first finding addresses the increase in lawsuits brought to chill free speech and petitioning rights. The second states that \\\"[i]t is in the public interest to encourage continued participation in matters of public significance, and this participation should not be chilled through abuse of the judicial process.\\\" 2005, No. 184, \\u00a7 1 (emphasis added).\\n\\u00b6 47. The findings reflect the broader national concerns that fueled the development of anti-SLAPP legislation. Anti-SLAPP legislation emerged in the 1990s after legal scholars brought to light the \\\"growing legal risk for ordinary citizens who speak up on community political issues,\\\" G. Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3, 8 (1989), including such activities as,\\n[reporting violations of the law, writing to government officials, attending public hearings, testifying before government bodies, circulating petitions for signature, lobbying for legislation, campaigning in initiative or referendum elections, filing agency protests or appeals, being parties in law-reform lawsuits, and engaging in peaceful boycotts or demonstrations.\\nId. at 5. The concern of Pring and other commentators was the power differential inherent between citizens engaged in political participation and the entities that use their financial resources to intimidate and silence these citizen activists. Id. at 7. \\\"These are not ordinary lawsuits,\\\" explained Pring. \\\"They are classic 'dispute transformation' devices, a use of the court system to empower one side of a political issue, giving it the unilateral ability to transform both the forum and the issue in dispute.\\\" Id. at 12. \\\"As these suits become an increasing (and increasingly known) risk for the ordinary citizen who decides to speak out on a public issue, SLAPPs raise substantial concern for the future of citizen involvement or public participation in government, a fundamental precept of representative democracy in America.\\\" Id. at 6.\\n\\u00b6 48. We have excerpted above, supra, \\u00b6 29-80, testimony to the Senate Judiciary Committee and the Report of the House Judiciary Committee. The testimony demonstrates that the intent of the bill was to prevent retaliatory litigation against citizens exercising their right to free speech and their right to petition the government on matters of public interest. The Report of the House Judiciary Committee states that the \\\"objective\\\" of the bill was \\\"to prevent the misuse of the courts as a vehicle to punish people for expressing their opinions on issues of public interest.\\\" Report at 1. We conclude from the legislative history that the Legislature intended that the protected actions be connected to matters of public interest and intended to make that connection an element of an anti-SLAPP motion.\\n\\u00b6 49. Although we understand the public policy argument made by the California Supreme Court in Briggs, we note that the majority of state anti-SLAPP statutes \\\"stipulate that, in order to successfully invoke the law, a litigant's purportedly protected communication must have been about a matter of public concern.\\\" Barylak, supra, at 869. We also believe that the public policy analysis in Briggs turned out to be wishful thinking that did not predict the result of that decision. Although the establishment of a bright line rule may have simplified the issues in some litigation, it nevertheless dramatically increased the use of the anti-SLAPP remedy in suits far afield from the SLAPP suit paradigm, as feared by the dissent. See Briggs, 969 P.2d at 579 (Baxter, J., dissenting) (observing that majority holding \\\"expands the definition of a SLAPP suit to include a potentially huge number of cases\\\"). Indeed, California's statute has been invoked in thousands of cases on a broad range of legal issues and filing a motion under the statute has become almost a matter of course. Since its inception in 1992, California's statute has been cited in nearly 5000 appellate court decisions, almost all of them post-dating the 1997 amendment, and Briggs has been cited nearly 1000 times. We note cases from the California appellate courts involving the application of California's anti-SLAPP statute to divorce and divorce-related litigation. See, e.g., S.A. v. Maiden, 176 Cal. Rptr. 3d 567 (Ct. App. 2014).\\n\\u00b6 50. A good example of the kind of litigation that has spawned anti-SLAPP motions is Serafine v. Blunt, No. 03-12-00726-CV, 2015 WL 3941219 (Tex. Ct. App. June 26, 2015), which was decided in a state where the connection to a public issue is not an element of a SLAPP suit under the state's statute, known as the Texas Citizen Participation Act (TCPA). A thoughtful concurrence by Justice Pemberton describes the lawsuit at issue and the consequence the anti-SLAPP statute has on the suit. He refers to the TCPA as the \\\"elephant in the room\\\" and notes that \\\"as written, the TCPA is, at best, a vastly overbroad 'anti-SLAPP' law.\\\" Id. at *7 (Pemberton, J., concurring). He further discusses the ramifications of the statute:\\nPerhaps the most obvious take-away point is that the TCPA is less an \\\"anti-SLAPP\\\" law than an across-the-board game-changer in Texas civil litigation if a lawsuit like Serafine's \\u2014 which arises from a boundary dispute and personality conflicts between neighboring homeowners \\u2014 is elevated to the status of the \\\"exercise of the right to petition\\\" protected by the Act and unremarkable defensive measures like the Blunts assert are made subject to dismissal as \\\"legal actions\\\" \\\"based on, relate[d] to, or . . . in response to\\\" that \\\"exercise.\\\"\\nId. (Pemberton, J., concurring) (alterations in original). These observations mirror much of the commentary about the California anti-SLAPP statute. See generally E. Sangster, Back Slapp: Has the Development of Anti-SLAPP La w Turned the Statute into a. Tool to be Used against the Very Parties it was Intended to Protect?, 26-SEP L.A. Law. 87 (2008).\\n\\u00b6 51. The Briggs ruling is not the only source of the vast expansion of anti-SLAPP motions in California, although it is a substantial cause of that expansion. See Sobczak, supra, at 583-84; Barylak, supra, at 869 (\\\"The presence or absence of the public concern criteria has, in certain contexts, a significant impact on the outcome of anti-SLAPP motions.\\\"). It is fair to say, however, that there is no evidence that the Vermont Legislature intended, or even foresaw, the expansive use of the anti-SLAPP remedy in circumstances far afield from the paradigm on which the statute was based. One way to reduce overuse of the remedy is to enforce the requirement of \\u00a7 1041(a) that a defendant's exercise of constitutional rights be in connection with a matter of public issue, as the legislative history demonstrates the Legislature intended.\\n\\u00b6 52. We conclude that the \\\"in connection with a public issue\\\" requirement of 12 V.S.A. \\u00a7 1041(a) must be met in any motion to strike under the anti-SLAPP statute, regardless of the type of activity. We reach this result as a matter of statutory interpretation in order to implement the intent of the Legislature in adopting the anti-SLAPP remedy and keeping that remedy within the bounds of the paradigm on which it was based. Thus, in considering whether the motion to strike filed by GFC in the case before us should have been granted, we must determine whether its protected activity was in connection with a public issue.\\n\\u00b6 53. GFC presented expert testimony on the value of one of plaintiffs businesses in order to support Ms. Felis' proposed property distribution in a divorce order. The testimony did not go to the appropriateness of the law with respect to valuation or distribution of marital property, but rather applied settled law to facts. Despite the vigor with which the divorce action was contested, it was not \\\"a matter of public significance.\\\" See Time, Inc. v. Firestone, 424 U.S. 448, 454 (1976) (noting that divorce proceedings are not \\\"public controversy\\\"). Accordingly, we hold that, because GFC's motion to strike would not have been successful if the superior court had ruled on it, the court's failure to reach the motion was harmless error.\\nAffirmed.\\nSection 1041 of Title 12 is Vermont's anti-SLAPP (Strategic Lawsuit Against Public Participation) law.\\nThe divorce case eventually reached this Court, and the treatment of the wasteful dissipation claim was one of the main issues on appeal. Felis v. Felis, 2013 VT 32, 193 Vt. 555, 72 A.3d 874. The family court first ruled that Ms. Felis had failed to establish wasteful dissipation. The court then ruled, in the final divorce order, that the value of certain expenditures plaintiff had made would be considered a current asset to be distributed to him, and lowered the value of the rest of the property distributed to plaintiff. On appeal, we ruled that, under the \\\"dissipation doctrine,\\\" the court had the power to treat wrongfully dissipated assets, including cash, as a current asset, but that the findings did not support application of the dissipation doctrine. Id. \\u00b6 25. As a result, plaintiff prevailed on that issue in this Court.\\nThe court noted in its decision that it chose to address the fiduciary duty claim, rather than require plaintiff to amend his complaint, since both parties had briefed the issue.\\nIn a footnote, the superior court noted that GFC might wish to proceed with the motion to strike in order to obtain attorney's fees, if successful. The court concluded, however, that the motion would require an evidentiary hearing, additional expert and legal fees for both sides, and relitigation of the complicated business valuation issues, which the court concluded would not be a \\\"useful exercise.\\\" The court said of its ruling, \\\"Enough already.\\\"\\nIn his brief to this Court, plaintiff misstates the proper elements of a fraud claim. Even if we were to adopt plaintiffs description of the elements, his claim still would fail.\\nDespite these allegations, plaintiff, in his briefing to the superior court, argued that he had no way of knowing about defendants' fee-building strategy until the end of the case. The court rejected this argument as contrary to the statements in the complaint. Plaintiff has abandoned this argument on appeal, making no mention of the knowledge-of-the-falsity element in his brief to this Court.\\nWe also note that, on this theory, only part of plaintiffs alleged damages would be compensable. For example, plaintiff alleges that DRM harassed him with unnecessary discovery requests. There is no allegation that plaintiff ever attempted to stop the discovery by seeking court action or that the court ordered discovery in reliance on DRM's misrepresentations.\\nDRM argues that the case relied upon by plaintiff for this proposition, Cooper v. Cooper, 173 Vt. 1, 7, 783 A.2d 430, 436 (2001), is inapposite because Cooper recognized duties arising out of joint tenancies and tenancies in common and the marital estate here is nothing more than a legal fiction created by the court for the purpose of distributing the marital assets, some of which may not be jointly owned. As stated, we need not decide whether plaintiff and Ms. Felis owed one another fiduciary duties by way of the marital estate because, even if they did, the argument is without merit.\\nA particular incident on which the committee heard extensive testimony represented the paradigm for the legislation. It is described in the report as follows:\\n[Twelve] Barnard residents, the zoning board, and others were targets of a suit brought by a new land owner whose property development projects were impacting a public right of way. The residents signed a petition with Barnard's zoning board of adjustment appealing the landowner's permit. A retaliatory suit was served on those Barnard citizens on Christmas Eve. The right to petition is expressly recognized under Vermont law. Nevertheless, these residents decided to \\\"cut their loses\\\" and settle the case on terms dictated by the plaintiffs. They simple couldn't afford to pay the enormous costs of defending/litigating their constitutional rights.\\nReport at 1.\\nThe burden-shifting language in \\u00a7 1041(e)(1) and (2) was modeled on the Massachusetts anti-SLAPP statute.\\nFor the purposes of the issue before us, the language of the California statute, Cal. Code of Civ. Pro. \\u00a7 425.16(b)(1) and (e)(l)-(4), essentially is identical to that of the Vermont statute, 12 V.S.A. \\u00a7 1041(a) and (i)(l)-(4). The actual wording has some differences, but those differences are not relevant to the question before us.\"}"

vt/12461523.json

@@ -0,0 +1 @@
+"{\"id\": \"12461523\", \"name\": \"Garey v. St. Francis\", \"name_abbreviation\": \"Garey v. St. Francis\", \"decision_date\": \"2015-10-20\", \"docket_number\": \"15-379\", \"first_page\": \"657\", \"last_page\": \"657\", \"citations\": \"200 Vt. 657\", \"volume\": \"200\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-11T02:49:56.026793+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Garey v. St. Francis\", \"head_matter\": \"15-379\\nGarey v. St. Francis\\n10/20/15\", \"word_count\": \"10\", \"char_count\": \"67\", \"text\": \"Dismissed\\nFrank. Civ.\\n125/903\"}"

vt/12492193.json

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+"{\"id\": \"12492193\", \"name\": \"Brady C. TOENSING v. The ATTORNEY GENERAL of Vermont\", \"name_abbreviation\": \"Toensing v. Attorney Gen. of Vt.\", \"decision_date\": \"2017-10-20\", \"docket_number\": \"No. 17\\u2013090\", \"first_page\": \"1000\", \"last_page\": \"1013\", \"citations\": \"178 A.3d 1000\", \"volume\": \"178\", \"reporter\": \"West's Atlantic Reporter, Third Series\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-27T20:57:29.410398+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.\", \"parties\": \"Brady C. TOENSING\\nv.\\nThe ATTORNEY GENERAL of Vermont\", \"head_matter\": \"Brady C. TOENSING\\nv.\\nThe ATTORNEY GENERAL of Vermont\\nNo. 17-090\\nSupreme Court of Vermont.\\nJune Term, 2017\\nOctober 20, 2017\\nBrady C. Toensing of diGenova & Toensing, Washington, D.C., for Plaintiff-Appellant.\\nThomas J. Donovan, Jr., Attorney General, and Benjamin D. Battles, Solicitor General, Montpelier, for Defendant-Appellee.\\nRobert B. Hemley of Gravel & Shea, P.C., Burlington, and Timothy Cornell of Cornell Dolan, P.C., Boston, Massachusetts, for Amici Curiae Vermont Journalism Trust, Caledonian-Record Publishing Co., New England First Amendment Coalition, The Vermont Press Association, and Da Capo Publishing, Inc.\\nPRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.\", \"word_count\": \"6962\", \"char_count\": \"43847\", \"text\": \"ROBINSON, J.\\n\\u00b6 1. At issue in this appeal is whether, under the Vermont Access to Public Records Act (PRA), a government agency must ask state employees to determine whether they possess public records in digital form in their personal accounts when a requester specifically requests communications between specified state employees and third parties, including records that can be found only in the individual state employee's personal account. We conclude that the PRA's definition of \\\"public record\\\" includes digital documents stored in private accounts, but emphasize that it extends only to documents that otherwise meet the definition of public records. On the facts of this case, the agency was required to ask specified state employees to provide public records from their personal accounts in response to plaintiff's public records request. Accordingly, we reverse and remand.\\n\\u00b6 2. The undisputed facts are as follows. On May 12, 2015, plaintiff Brady Toensing submitted a PRA request to then-Attorney General William Sorrell. Among other things, plaintiff requested responsive records from \\\"January 1, 2012 to present\\\" from eleven employees and officials in the Office of the Attorney General (AGO). In particular, he asked for: \\\"[a]ny and all communications with or documents related to\\\" forty-four individuals and entities and \\\"communications received from or sent to\\\" any email addresses with one of four domain names. Plaintiff's request stated that \\\"[t]hese requests include, but are not limited to, communications received or sent on a private email account . or private text messaging account.\\\" Plaintiff submitted a revised request on December 11, 2015, that requested records from \\\"January 1, 2011 to present\\\" from nine state employees and officials and asked for \\\"[a]ny and all communications with and documents related to\\\" twenty-seven individuals and three domain names. Per an agreement with plaintiff, the AGO retained an outside contractor at plaintiff's expense to conduct a search of the State's Microsoft Exchange Enterprise Vault to identify emails responsive to plaintiff's request.\\n\\u00b6 3. The contractor the AGO hired to search for records identified 13,629 responsive emails in the state system, which it consolidated into 1129 email chains. The AGO produced records on a rolling basis from February 5, 2016, through April 28, 2016. The AGO's final response, embodied in a letter from Chief Assistant Attorney General William Griffin, identified the responsive documents the AGO had provided, and described the documents it had withheld on the ground that they were not public records or were public records exempt from disclosure under the PRA.\\n\\u00b6 4. In May, plaintiff wrote Chief Assistant Attorney General Griffin indicating that during the course of his numerous communications with the AGO, he had emphasized that his request encompassed communications sent to and received from the private accounts of the identified state employees, but that it did not appear that the nine AGO employees had searched for and produced responsive emails and text messages from their personal accounts. He added that, if the AGO was denying his request to the extent it included responsive records and text messages in personal accounts, the AGO should treat his letter as an administrative appeal of that denial.\\n\\u00b6 5. After plaintiff confirmed that the only ground for appeal he was asserting in connection with the AGO's response to the records request was the AGO's refusal \\\"to produce, or even search for, responsive public records that may be kept on private email or text messaging accounts,\\\" Deputy Attorney General Susanne Young denied plaintiff's administrative appeal. The denial rested on three bases. First, that the PRA only addresses records generated or received by a public agency, and does not extend to private accounts or electronic devices that are not accessible to the agency. Second, there is no basis to conclude that the Legislature would have expected state agencies to conduct searches of the private accounts of state officials and employees, given the law's attempt to balance the interest of public accountability against privacy interests. Third, even assuming that an agency may be obligated in some cases to attempt to search a private account, plaintiff did not provide a sufficient justification for his request in this case.\\n\\u00b6 6. Plaintiff filed an action in the superior court seeking declaratory and injunctive relief in connection with the AGO's denial. Among other things, he sought a declaration that responsive records \\\"that are related in any way to the individual's employment at the state agency\\\" are public records subject to release under the PRA, \\\"regardless of whether those records are stored on a government or private account.\\\" He further requested a declaration that the PRA \\\"requires a good-faith search for records\\\" and that the AGO must release the requested records \\\"or segregable portions thereof subject to legitimate exemptions.\\\" He sought an injunction compelling the AGO \\\"to produce (or order its employees to produce) all records responsive to plaintiff's [PRA] requests, subject to legitimate withholdings.\\\" The AGO conceded in its answer that it had declined to search private e-mail or text messaging accounts in response to plaintiff's public records request.\\n\\u00b6 7. In August, the AGO filed a motion for summary judgment, arguing that communications stored on private email and text messaging accounts are not public records under the PRA. If the court determined that information stored in private accounts was subject to the PRA, the AGO argued that an individual who requests public records stored in private accounts should have to show, first, that agency business was conducted using private accounts and, second, that a search of those accounts was necessary to review agency action. In his opposition, plaintiff emphasized that on the record in this case, asking employees to search their own accounts for responsive records, and then disclosing those records, with an index of those withheld on account of exemptions, would be sufficient to meet the State's obligation to conduct a good faith \\\"search\\\" in response to his records request.\\n\\u00b6 8. The trial court granted the AGO's motion in February 2017. The court concluded that the PRA only applies to public records \\\"of a public agency,\\\" and that accordingly \\\"a record must be in the custody or control of the agency to be subject to search or disclosure.\\\" The court added that subjecting personal accounts to the PRA would lead to the invasion of the privacy of state employees and officials, and that implementation of such a requirement would raise practical concerns. It acknowledged that allowing state officials and employees to avoid the PRA by communicating through private accounts \\\"is a serious and, frankly, disturbing concern,\\\" but determined that it was up to the Legislature to resolve this problem.\\n\\u00b6 9. On appeal, plaintiff argues that communications related to agency business but stored in private accounts are public records subject to the PRA. He argues that the language of the PRA as well as public policy support this position. He also contends that the PRA places the full burden of proving that a search for responsive records was reasonable on the agency conducting the search, and that placing any burden on the requester to make a threshold showing that public records are stored in private accounts before the agency is required to ask employees if they have public records stored on private accounts would be contrary to the language of the statute and legislative intent.\\n\\u00b6 10. The AGO has shifted its argument on appeal, and no longer contends that records that otherwise fit the definition of public records are not subject to the public records law when they are stored in private accounts. Instead, the AGO maintains that in this case it was not required to take any steps to identify potentially responsive public records found on private accounts of state employees, and that its process for responding to plaintiff's request was sufficient.\\n\\u00b6 11. When reviewing a trial court's grant of summary judgment, we \\\"apply the same standard as the trial court.\\\" Wesco, Inc. v. Sorrell, 2004 VT 102, \\u00b6 9, 177 Vt. 287, 865 A.2d 350. Summary judgment is appropriate when the moving party \\\"shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.\\\" V.R.C.P. 56(a).\\n\\u00b6 12. On this summary judgment record, we conclude that records produced or acquired in the course of agency business are public records under the PRA, regardless of whether they are located in private accounts of state employees or officials or on the state system. We further conclude that in this case, where plaintiff specifically seeks specified communications to or from individual state employees or officials, regardless of whether the records are located on private or state accounts, the AGO's obligation to conduct a reasonable search includes asking those individual employees or officials to provide any public records stored in their private accounts that are responsive to plaintiff's request. We consider each conclusion in turn.\\nI. The Scope of the PRA\\n\\u00b6 13. The PRA does not exclude otherwise qualifying records that are located in private accounts of state employees or officials. Our conclusion is based first and foremost on the definition of \\\"public records\\\" in the PRA, the liberal construction to which that statute is subject, and other provisions in the statute that reinforce our understanding. Moreover, the statutory purpose of the PRA supports this interpretation. Persuasive analyses from numerous state and federal courts further buttress our analysis, as do considerations of sound public policy. Although the focus of this appeal is the relationship between the PRA and records located in private accounts of state employees and officials, we note that the definition of public record, while quite broad, is not so broad as to encompass many of the records sought by plaintiff in this case. For that reason, our holding does not impinge on the reasonable privacy expectations of state employees.\\n\\u00b6 14. The definition of \\\"public record\\\" in the PRA does not exclude otherwise qualifying records on the basis that they are located in private accounts. When construing a statute, our goal is to effectuate the intent of the Legislature. Wesco, Inc., 2004 VT 102, \\u00b6 14, 177 Vt. 287, 865 A.2d 350. We first look to the statute's language because we presume that the Legislature \\\"intended the plain, ordinary meaning of the adopted statutory language.\\\" Id. The PRA defines \\\"public records\\\" as \\\"any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business.\\\" 1 V.S.A. \\u00a7 317(b). We have previously described this definition as \\\"sweeping.\\\" Herald Ass'n v. Dean, 174 Vt. 350, 353, 816 A.2d 469, 473 (2002) (quotation omitted). The \\\"determinative factor\\\" in the question of what constitutes a public record is \\\"whether the document at issue is 'produced or acquired in the course of agency business.' \\\" Id. at 354, 816 A.2d at 473 (quoting 1 V.S.A. \\u00a7 317(b) ). The PRA does not define \\\"public record\\\" in reference to the location or custodian of the document, but rather to its content and the manner in which it was created. Cf. Trombley v. Bellows Falls Union High Sch. Dist. No. 27, 160 Vt. 101, 108, 624 A.2d 857, 862 (1993) (rejecting argument that documents were exempt from disclosure based on location in confidential disciplinary files because documents must be evaluated \\\"based on their content rather than where they are filed\\\").\\n\\u00b6 15. This construction is consistent with the Legislature's intent that we construe the PRA liberally in favor of disclosure. See 1 V.S.A. \\u00a7 315(a) (providing that \\\"the provisions of this subchapter shall be liberally construed\\\"); Rueger v. Nat. Res. Bd., 2012 VT 33, \\u00b6 7, 191 Vt. 429, 49 A.3d 112 (\\\"In conducting our analysis, we are mindful that the PRA represents a strong policy favoring access to public documents and records.\\\" (quotation omitted)). The Legislature expressly mandated that \\\"it is in the public interest to enable any person to review and criticize [government] decisions even though such examination may cause inconvenience or embarrassment,\\\" and we construe the statute in light of this purpose. 1 V.S.A. \\u00a7 315(a).\\n\\u00b6 16. Our conclusion is further supported by a PRA provision that acknowledges that a state agency may need additional time to search for and collect the requested records \\\"from field facilities or other establishments that are separate from the office processing the request.\\\" 1 V.S.A. \\u00a7 318(a)(5)(A). \\\"Other establishments\\\" is an undefined term, but this provision suggests that in some circumstances a public record may be located outside of the public agency itself. See Bud Crossman Plumbing & Heating v. Comm'r of Taxes, 142 Vt. 179, 185, 455 A.2d 799, 801 (1982) (explaining that statutes should be construed with others as part of one system).\\n\\u00b6 17. Other state courts have interpreted similar public records laws to extend to records stored in private accounts. Although these decisions involve different statutes with distinct requirements, they rely on considerations that also apply to the Vermont PRA and their reasoning accordingly adds some persuasive validation to our interpretation of Vermont's public records law. For example, the California Supreme Court in City of San Jose v. Superior Court recently reasoned that agencies themselves \\\"cannot prepare, own, use, or retain any record\\\" because \\\"[o]nly the human beings who serve in agencies can do these things.\\\" 214 Cal.Rptr.3d 274,389 P.3d 848, 855 (2017). It concluded that, because an agency \\\"can act only through its individual officers and employees,\\\" documents \\\"prepared by a public employee conducting agency business has been 'prepared by' the agency within the meaning of [the PRA] even if the writing is prepared using the employee's personal account.\\\" Id. The court rejected the argument that documents in personal accounts are beyond the agency's control and therefore not subject to the PRA. It recognized that documents do not lose their status as public records only because \\\" 'the official who possesses them takes them out the door.' \\\" Id., 214 Cal.Rptr.3d 274, 389 P.3d at 857 (quoting Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 149 (D.C. Cir. 2016) ); see also Nissen v. Pierce Cty., 183 Wash.2d 863, 357 P.3d 45, 52-54 (2015) (concluding that records on private cell phones are subject to PRA because agencies \\\"act only through their employee-agents\\\" and therefore \\\"a record that an agency employee prepares, owns, uses, or retains in the scope of employment is necessarily a record prepared, owned, used, or retained by\\\" the agency (quotation omitted)). But see In re Silberstein, 11 A.3d 629, 633 (Pa.Commw.Ct. 2011) (concluding with respect to records in individual township commissioner's personal email account that \\\"unless the [records] were produced with the authority of [the township], as a local agency, or were later ratified, adopted or confirmed by [the township], said requested records cannot be deemed public records within the meaning of [the public records law] as the same are not of the local agency\\\" (quotation omitted)).\\n\\u00b6 18. Likewise, federal courts applying the federal Freedom of Information Act (FOIA) have concluded that documents in private accounts may be subject to disclosure under FOIA. See Rutland Herald v. Vt. State Police, 2012 VT 24, \\u00b6 68, 191 Vt. 357, 49 A.3d 91 (Dooley, J., concurring in part and dissenting in part) (considering federal court decisions construing FOIA in interpreting analogous provisions in Vermont PRA). In Competitive Enterprise Institute v. Office of Science & Technology Policy, the D.C. Circuit considered a FOIA request for records relating to public business located in a private email account maintained by the director of the Office of Science and Technology. 827 F.3d 145 (D.C. Cir. 2016). The agency declined to produce the record on the ground that the records were \\\"beyond the reach of FOIA\\\" because they were in an account under the control of a private organization. Id. at 147. The D.C. Circuit rejected this claim, explaining that records do not lose their agency character just because the official who possesses them takes them out the door. Id. at 149. Considering the purpose of FOIA, the court reasoned:\\nIf a department head can deprive the citizens of their right to know what [the] department is up to by the simple expedient of maintaining . departmental emails on an account in another domain, that purpose is hardly served. It would make as much sense to say that the department head could deprive requestors of hard-copy documents by leaving them in a file at [the department head's] daughter's house and then claiming that they are under her control.\\nId. at 150 ; see also Competitive Enter. Inst. v. U.S. Envtl. Prot. Agency, 12 F.Supp.3d 100, 122 (D.D.C. 2014) (explaining that agency was not required to disclose employees' personal email addresses since FOIA requesters \\\"can simply ask for work-related emails and agency records found in the specific employees' personal accounts\\\" and \\\"need not spell out the email addresses themselves\\\").\\n\\u00b6 19. In fact, even the federal cases upon which the AGO relies in arguing for a burden-shifting test with respect to an agency's obligation to search for public records stored in private accounts support the conclusion that such records are, in fact, public records. See Hunton & Williams, LLP v. U.S. Envtl. Prot. Agency, 248 F.Supp.3d 220, 237-38 (D.D.C. 2017) (noting that agencies performed searches of personal email accounts of individual employees when specific facts indicated that particular employee had used personal email account for agency business); Wright v. Admin. for Children & Families, No. 15-218, 2016 WL 5922293, at *8 (D.D.C. Oct. 11, 2016) (acknowledging that agency employees' communications on nonagency accounts may constitute \\\"agency records\\\" subject to FOIA). As noted above, the AGO has conceded this point on appeal.\\n\\u00b6 20. Strong public policy reasons support the conclusion that electronic information stored on private accounts is subject to disclosure under the PRA. The purpose of the PRA is to ensure that citizens can \\\"review and criticize\\\" government actions. 1 V.S.A. \\u00a7 315(a). That purpose would be defeated if a state employee could shield public records by conducting business on private accounts. See Wesco, Inc., 2004 VT 102, \\u00b6 14, 177 Vt. 287, 865 A.2d 350 (\\\"[W]e favor interpretations of statutes that further fair, rational consequences, and we presume that the Legislature does not intend an interpretation that would lead to absurd or irrational consequences.\\\" (quotation omitted)). And we are mindful that the PRA gives effect to the philosophical commitment to accountability reflected in Article 6 of the Vermont Constitution. See Rutland Herald, 2012 VT 24, \\u00b6 39, 191 Vt. 357, 49 A.3d 91 (recognizing that PRA is Legislature's means of executing broad principles articulated in Article 6 of Vermont Constitution); Vt. Const. ch. I, art. 6 (\\\"That all power being originally inherent in and consequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.\\\").\\n\\u00b6 21. \\\"If communications sent through personal accounts were categorically excluded from [the state public records law], government officials could hide their most sensitive, and potentially damning, discussions in such accounts.\\\" City of San Jose, 214 Cal.Rptr.3d 274, 389 P.3d at 858. Wide access to records created in the course of agency business is crucial to holding government actors accountable for their actions. Exempting private accounts from the PRA would \\\"not only put an increasing amount of information beyond the public's grasp but also encourage government officials to conduct the public's business in private.\\\" Id. (quotation omitted); see also Nissen, 357 P.3d at 53 (\\\"If the PRA did not capture records individual employees prepare, own, use, or retain in the course of their jobs, the public would be without information about much of the daily operation of government.\\\"). For the above reasons, we conclude that the PRA applies to public records that are stored in private accounts.\\n\\u00b6 22. We emphasize, however, that in order to qualify as a public record, a document must have been \\\"produced or acquired in the course of public agency business.\\\" 1 V.S.A. \\u00a7 317(b). Although this is a broad test, it is far narrower than suggested by plaintiff, and does not reach all records that are responsive to plaintiff's expansive public records request. With reference to nine identified state officials and employees, plaintiff sought \\\"[a]ny and all communications with or documents related to the following individuals.\\\" On its face, this request purports to reach many records that are not public, including communications among the identified individuals that were not produced or acquired in the course of agency business. Likewise, throughout his correspondence with the AGO, in his pleadings in this case, and in his brief on appeal, plaintiff appears to seek a judgment that he is entitled to any records \\\"that are related in any way to the individual's employment at the state agency,\\\" or that \\\"any records, regardless of where they are stored, which are related in any way to public business or created as a result of the employee's employment are producible.\\\" These statements do not reflect the statutory definition of public records, and our decision today should not be construed to expand the reach of the PRA to reach nonpublic records located in private accounts. See Herald Ass'n, 174 Vt. at 357, 816 A.2d at 476 (acknowledging that PRA \\\"applies only to records generated in 'the course of agency business' \\\"); cf. Nissen, 357 P.3d at 54 (\\\"[E]mployees do not generally act within the scope of employment when they text their spouse about working late or discuss their job on social media. Nor do they typically act within the scope of employment by creating or keeping records purely for private use, like a diary. None of these examples would result in a public record .\\\"). Our holding that records located in private accounts may be public records does not mean that the PRA purports to reach anything other than public records-those \\\"produced or acquired in the course of public agency business\\\"-that are located in private accounts.\\n\\u00b6 23. We emphasize this limit to the reach of our holding because nothing in the PRA suggests that the Legislature intended to subject nonpublic communications by state employees or officials to public scrutiny, and any such invasions would raise substantial privacy concerns. State policy on internet use puts state employees on notice that employees with state email accounts must not routinely use personal email accounts to conduct state business without approval from the Secretary of Administration, and specifically notifies employees that \\\"a 'public record' is any record produced or acquired in the course of agency business, regardless of whether the record resides in a state-provided system or personal account.\\\" Electronic Communications and Internet Use, Personnel Policy 11.7, http://humanresources.vermont.gov/sites/humanresources/files/ documents/Labor_Relations_Policy_EEO/Policy_Procedure_Manual/Number_11.7_ELECTRO NIC_COMMUNICATIONS_AND_INTERNET_USE.pdf [https://perma.cc/NP9H-UN23] (emphasis added). The policy explains, \\\"Any public record contained in a non-state-provided system (email or otherwise) is subject to Vermont's Access to Public Records Act.\\\" Treating a record produced or acquired in the course of agency business as a public record, regardless of where situated, does not impinge on the reasonable privacy expectations of state employees who are on notice that they should not generally be conducting public business through private accounts. But suggesting that nonpublic records in private accounts of state employees are subject to public disclosure-or even disclosure to the State itself-would raise a host of concerns about the contractual and potentially constitutional privacy interests of state employees, would not further the public policy of open government, and would expand the PRA beyond its intended purpose.\\nII. The AGO's Obligation in Responding to Plaintiff's Request\\n\\u00b6 24. We conclude on the record of this case, where plaintiff specifically seeks specified communications to or from individual state employees or officials regardless of whether the records are located on private or state accounts, that the AGO's obligation to conduct a reasonable search includes asking those individual employees or officials to provide any public records stored in their private accounts that are responsive to plaintiff's request. In reaching this conclusion, we consider the language of the PRA, practical factors, the burden-shifting framework that the AGO advocates, its application to the record of this case, the conflicting interests at stake, and persuasive authority from other states.\\n\\u00b6 25. The PRA itself offers few clues as to the specific responsibilities of a state agency in responding to a public records request that may include records located in the personal accounts of state employees or officials. The statute simply provides, \\\"[u]pon request, the custodian of a public record shall promptly produce the record for inspection.\\\" 1 V.S.A. \\u00a7 318(a). It does not describe the process by which the custodian is to gather, review, and disclose the records, although the statute does contemplate that an individual at the agency will assume ultimate responsibility for the gathering of relevant records, identification of exemptions, and disclosure to the requester. See id. \\u00a7 318(a)(2) (requiring custodian to certify any exemptions claimed by identifying records withheld and basis for denial); \\u00a7 318(a)(4) (requiring custodian to certify in writing when requested record does not exist); see also Pease v. Windsor Dev. Review Bd., 2011 VT 103, \\u00b6 17-19, 190 Vt. 639, 35 A.3d 1019 (mem.) (concluding that municipal development review board properly responded to public records request through custodian, rather than through individual responses from each DRB member and noting that \\\"a custodian [is] one 'who ha[s] it within their power to release or communicate public records' \\\" (quoting Mintus v. City of West Palm Beach, 711 So.2d 1359, 1361 (Fla. Dist. Ct. App. 1998) (per curiam))).\\n\\u00b6 26. As a practical matter, the steps required to reasonably compile requested public records likely vary depending upon the nature of the request. In some cases, centralized electronic searches of agency records in an email system, document management application, or database within specified parameters may be the primary or even exclusive means of compiling responsive public records. In other circumstances, electronic searching may take place in a decentralized way, with individual employees searching their own state digital accounts. In yet other cases, many of the responsive records will exist only in hard copy, and someone must search through the appropriate file or files. Sometimes the relevant records, whether electronic or hard copy, are likely to be centralized; in others, they may be dispersed among multiple individual systems. And, per the discussion above, in some cases responsive public records may be located outside state accounts or the four walls of the public agency. Because public records requests can take so many forms, it would be impracticable to try to delineate specific steps required to comply with each and every public records request.\\n\\u00b6 27. To fill this void, the AGO urges this Court to adopt a burden-shifting test applied by some federal courts under FOIA. To prevail on summary judgment with respect to a FOIA dispute, the defending agency must show that it has conducted a search \\\"reasonably calculated to uncover all relevant documents.\\\" Morley v. C.I.A., 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quotation omitted). The agency need not search \\\"every record system\\\" for the requested documents, but it \\\"must conduct a good faith, reasonable search of those systems of records likely to possess the requested records.\\\" Hunton & Williams, 248 F.Supp.3d at 235 (quotation omitted); see also Wright, 2016 WL 5922293, at *8. Once the agency has provided the court a reasonably detailed affidavit describing its search, the burden shifts to the FOIA requester to produce \\\"countervailing evidence\\\" suggesting that a genuine dispute of material fact exists as to the adequacy of the search. Hunton & Williams, 248 F.Supp.3d at 236 (quotation omitted).\\n\\u00b6 28. As applied to personal email accounts of state employees, the AGO urges us to adopt a presumption that agency records are unlikely to exist on the agency employees' personal accounts. The AGO contends that a requester can satisfy its burden to present \\\"countervailing evidence\\\" as to the adequacy of an agency's search by identifying evidence that a specific private email address has been used for agency business, but that mere speculation that private email accounts were used does not require the agency to perform a search. Id.; see also Wright, 2016 WL 5922293, at *8-9.\\n\\u00b6 29. We recognize the conflicting interests that inform the AGO's analysis. The PRA aims to uphold the accountability of the public servants to whom Vermonters have entrusted our government. The statute clearly asserts the Legislature's interest in enabling \\\"any person to review and criticize\\\" the decisions of government officers \\\"even though such examination may cause inconvenience or embarrassment.\\\" 1 V.S.A. \\u00a7 315(a). It recognizes that providing for free and open examination of public record promotes values of constitutional significance. Id. (citing Vt. Const. ch. I, art. 6 ). But the Legislature has also recognized that \\\"[a]ll people . have a right to privacy in their personal and economic pursuits, which ought to be protected unless specific information is needed to review the action of a governmental officer.\\\" Id. Any discussion of requiring, or even allowing, a public agency to \\\"search\\\" the private email accounts of its employees would trigger privacy concerns of the highest order.\\n\\u00b6 30. But we must bear in mind the \\\"search\\\" at issue in this case, which really isn't a \\\"search\\\" at all. Plaintiff has not argued that the AGO should, or even could, compel individual employees to hand over their smartphones or log-in credentials for their personal email accounts in response to his public records request. He has made the far more modest claim that the AGO should ask the identified employees to turn over any public records responsive to plaintiff's request that are in their personal email or text message accounts. In the context of this case, that request would not intrude at all on the privacy of the nine state officials or employees involved. The AGO would not have incidental access to any nonpublic texts, emails or other documents in the employees' accounts; the only records the employees would be asked to provide to the AGO would be those that are public records responsive to plaintiff's request. And of those, any public records that are subject to exemption from disclosure, in part or as a whole, would be redacted or withheld by the AGO and included in its itemized list of exempt or partially exempt documents. The notion that state employees have a privacy interest in records that are by law public records-those produced or acquired in the course of agency business-is incongruous.\\n\\u00b6 31. Courts in at least two other states have adopted an approach similar to that advocated by plaintiff. In Nissen, the Washington Supreme Court considered a request pursuant to that state's public records law for disclosure of text messages sent or received by a prosecutor in his official capacity. 357 P.3d at 49-50. The court first concluded that Washington's public records law reached records \\\"prepared, owned, used, or retain[ed]\\\" by state employees in the course of their jobs, including the work product of public employees found on their personal cell phones such as text messages. Id. at 52-53, 55-56. Considering the mechanics of searching for and obtaining public records stored by or in the control of an employee, the court recognized the competing interests discussed above. The court noted that an individual has no constitutional privacy interest in a public record, but recognized that a state employee may have strong constitutional rights in information that is comingled with those public records. Id. at 56 (describing wealth of personal information accessible through modern mobile devices). On the other hand, the court concluded that the statutory mandate providing for \\\"full access to information concerning the conduct of government on every level\\\" required that the public have some way to obtain public records created and exchanged on personal cell phones. Id. (quotation omitted). The court rejected the notion that the public records law created a \\\"zero-sum choice between personal liberty and government accountability,\\\" and held that \\\"an employee's good-faith search for public records on his or her personal device can satisfy an agency's obligation under [the public records act].\\\" Id. at 56-57.\\n\\u00b6 32. With respect to judicial review of an agency's response to a public records request, the court concluded that \\\"[t]o satisfy the agency's burden to show it conducted an adequate search for records,\\\" it would permit employees to submit an affidavit with facts sufficient to show that the information withheld was not a public record. Id. at 57. As long as the affidavits \\\"give the requester and the trial court a sufficient factual basis to determine that withheld material is indeed nonresponsive, the agency has performed an adequate search\\\" under the public records law. Id. When done in good faith, this procedure, the court opined, \\\"allows an agency to fulfill its responsibility to search for and disclose public records without unnecessarily treading on the constitutional rights of its employees.\\\" Id.\\n\\u00b6 33. More recently, the California Supreme Court relied in part on Nissen when adopting its own method for searching private accounts. City of San Jose, 214 Cal.Rptr.3d 274, 389 P.3d at 860-61. The court concluded that documents that otherwise meet the California public records act's definition of \\\"public records\\\" do not lose this status because they are located in an employee's personal account and provided guidance for conducting searches in light of the need to balance privacy and disclosure interests. Id., 214 Cal.Rptr.3d 274, 389 P.3d at 857, 860. The court acknowledged that California's public records act did not explain how agencies were to search private accounts, but noted that \\\"[s]ome general principles have emerged.\\\" Id., 214 Cal.Rptr.3d 274, 389 P.3d at 860. It explained that \\\"[a]s to requests seeking public records held in employees' nongovernmental accounts, an agency's first step should be to communicate the request to the employees in question\\\" and the agency \\\"may then reasonably rely on these employees to search their own personal files, accounts, and devices for responsive materials.\\\" Id. (emphasis in original). The court noted that federal courts applying FOIA had approved of this method, as long as the employees have been properly trained in segregating personal and public records, and followed the Washington Supreme Court and federal courts in concluding that as long as the employee provides an affidavit describing the employee's manner of searching in sufficient detail to show that the employee is not withholding public records, the agency's search is adequate. Id., 214 Cal.Rptr.3d 274, 389 P.3d at 860-61.\\n\\u00b6 34. We find the reasoning of the California and Washington Supreme Courts persuasive. We conclude that the critical question in this case is whether the AGO conducted a search that was reasonably calculated to uncover all relevant public records. We need not decide whether to formally adopt the burden-shifting advocated by the AGO because we conclude that even with a burden-shifting framework, the AGO's search for responsive public records must be adequate in the first instance. We decline to adopt a legal presumption that, in the absence of specific evidence provided by the requester, no state business has been conducted through private accounts. Instead, we conclude that in this case the AGO's search will be adequate if the specified officials and employees are trained to properly distinguish public and nonpublic records, the agency asks them to in good faith provide any responsive public records from their personal accounts, and they respond in a manner that provides reasonable assurance of an adequate search. This might be as simple as an affirmation that the employee, without exception, has not produced or acquired any records in personal accounts in the course of agency business, or that the employee has identified all potentially responsive records through a specified word search, and has segregated and disclosed all records produced or acquired in the course of agency business as opposed to communications of an exclusively personal nature.\\n\\u00b6 35. We note that plaintiff has advocated a framework that requires an agency to provide a sworn affidavit from each employee who conducts a search of personal accounts for public records in connection with a public records request. We do not adopt this requirement in cases like this in which there is no evidence that an employee has public records in personal accounts. In response to a public records request, a public agency must undertake a reasonable search to identify and disclose responsive, nonexempt public records. In the absence of any evidence suggesting that an employee is conducting agency business through personal accounts, an agency may reasonably rely on the representations of its employees. In fact, agencies likely rely on their employees' representations routinely in the context of searches of agency records. That is, an agency's search of its own records may take the form of individual employees or officials searching their paper or digital files in their agency account or office, providing responsive records to the custodian of records, and representing that their search is complete. In cases in which governing policies prohibit the conduct of public business on personal accounts and there is no evidence that employees or officials have used their personal accounts to conduct public business, we decline to impose a higher burden on them when searching their personal files than applies to their search of records accessed through agency accounts or hard copies located in agency files.\\n\\u00b6 36. Accordingly, if, in addition to searching the AGO's own records as it has done, the AGO has policies in place to minimize the use of personal accounts to conduct agency business, provides the specified employees and officials adequate guidance or training as to the distinction between public and nonpublic records, asks them to provide to the AGO any responsive public records in their custody or control, receives a response and brief explanation of their manner of searching and segregating public and nonpublic records, and discloses any nonexempt public records provided, its search will be adequate. This approach strikes a balance between protecting the privacy of state workers and ensuring the disclosure of those public records necessary to hold agencies accountable.\\n\\u00b6 37. In light of the above analysis, we direct the AGO to complete an adequate search in response to plaintiff's records requests consistent with our analysis, and remand this case to the trial court for completion of the AGO's response as well as consideration of attorney's fees.\\nReversed and remanded for further proceedings.\\nThe California Supreme Court issued this opinion during the pendency of this appeal. The trial court here relied on the intermediate court of appeal decision, City of San Jose v. Superior Court, 169 Cal.Rptr.3d 840 (Ct.App.2014), to support its conclusion that documents stored in private accounts could not be subject to the PRA. The California Supreme Court reversed that opinion on appeal.\\nIn his complaint in this case, and in his brief on appeal, plaintiff highlights a particular email between former Attorney General Sorrell and a registered lobbyist that plaintiff obtained through other channels. He apparently highlights this email in support of a request he made after the December 2015 revised records request for additional emails between Attorney General Sorrell and the individual. In ruling on plaintiff's appeal with respect to the applicability of the PRA to emails found in private accounts, the AGO determined that the private email exchange about a public event after the fact did not constitute agency business. The AGO's analysis did not turn solely on the fact that the email was located in a private account. Although plaintiff references this email exchange in his complaint and brief, we understand him to be doing so as a means of illustrating what he believes to be the perils of categorically excluding emails in private accounts from the definition of public records. We do not understand him to have challenged the AGO's determination that by its nature this email is not a public record.\\nAs noted above, plaintiff has actually made a somewhat broader claim about what the AGO should ask of its employees. See supra, \\u00b6 22. The important point for the purpose of the discussion here is that plaintiff has not argued that the AGO should physically search its employees' private accounts but, rather, that the AGO should ask employees to search their own accounts.\\nWhether an agency may in its own discretion require its employees to sign an affidavit is not before us. We decide only that under these circumstances the PRA does not require affidavits.\\nWe recognize that the cases we have relied upon do impose such a requirement. However, the Washington Supreme Court called for an affidavit in part because its public records statute expressly contemplates judicial review of agency actions taken pursuant to the public records law based solely on affidavits. See Nissen, 357 P.3d at 57 ; Wash. Rev. Code Ann. 42.56.550(3) (2017). Moreover, in that case the fact that the prosecutor was conducting official business using his personal cell phone to send and receive text messages was established. We do not address here the burden on an agency to establish an adequate search with respect to public records in the personal accounts of agency employees or officials in cases in which there is evidence of employees or officials conducting public business through personal accounts.\"}"

vt/1292349.json

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+"{\"id\": \"1292349\", \"name\": \"JOHN RUSZITS v. G. W. HILLIARD\", \"name_abbreviation\": \"Ruszits v. Hilliard\", \"decision_date\": \"1885-01\", \"docket_number\": \"\", \"first_page\": \"60\", \"last_page\": \"62\", \"citations\": \"57 Vt. 60\", \"volume\": \"57\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T18:44:01.273291+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN RUSZITS v. G. W. HILLIARD.\", \"head_matter\": \"JOHN RUSZITS v. G. W. HILLIARD.\\nInsolvency. Non-Resident Creditor. Practice. Pending Suit Continued. R. L. s. 1797.\\n1. A non-resident creditor can sustain an action against a party adjudged an insolvent debtor, while his estate is being settled by an assignee, if such creditor has not participated in the proceedings, and has not submitted to the jurisdiction of the insolvency court.\\n2. But the statute \\u2014 R. L. s. 1797 \\u2014 whereby a pending suit shall be stayed on the application of the debtor, until the question of discharge has been determined, is binding upon non-resident as well as resident creditors. But a formal application in the nature of a motion for continuance must be made to the court; and a plea in bar merely setting up the insolvency proceedings will not be treated as such motion.\\nAssumpsit. Pleas, general issue and two special pleas in bar. Heard on demurrer to the plaintiff\\u2019s replication to the special pleas, by tbe court, March Term, 1884, Yeazey, J., presiding. Judgment that the replication was sufficient.\\nRedington & Butler, for the defendant.\\nBedell & Warden v. Scruton, 54 Yt. 493, is not decisive of this case; as that case was decided under the Act of 1876, and the law was changed in 1880. R. L. s. 1797. The statute as to staying suits applies to non-resident creditors. Grant v. Lyman, 4 Met. 475; 21 Pick. 169; 13 Allen, 68; 8 Met. 29; 7 N. Y. 506.\\nF. G. Swinington, for the plaintiff,\\ncited Bedell & Warden v. Scruton, 54 Yt. 493.\", \"word_count\": \"985\", \"char_count\": \"5621\", \"text\": \"The opinion of the court was delivered by\\nRoyce, Oh. J.\\nThe pleas in bar allege, that before the commencement of this suit the defendant had been adjudged and declared an insolvent debtor, under R. L. chap. 93, that an assignee had been appointed and the estate duly-assigned under the provisions of that chapter, that the assignee had proceeded to settle the estate, and that said insolvency proceedings were still pending and the question of the discharge of the debtor not yet determined; and conclude by praying judgment if the plaintiff ought to have judgment or execution for his said damages on or against the person or estate of the defendant.\\nThe replication alleges, that the plaintiff ought not to be barred, because at the time of the making of the promises and undertakings by the defendant in the declaration mentioned, the plaintiff was, and ever since has been, a resident of the State of New York, and has not proved his claim against the estate of the defendant, or participated in any manner in said insolvency proceedings, or submitted himself to the jurisdiction of said court of insolvency in said proceedings.\\nThe demurrer to the replication admits the facts as alleged in it. The replication is such an one as a non-resident creditor might make to a plea of discharge by the Court of Insolvency, and, upon the authority of Bedell & Warden v. Scruton, 54 Vt. 493, and McDougall v. Page, 55 Vt. 187, would be a full answer to such a plea. It is established by those cases that the rights of such a creditor are not affected by such a discharge; the obligation of the debtor remains as before the discharge. The pleas are in bar; and the legal effect of a judgment sustaining them would be to conclude the plaintiff from any further prosecution of the claims described in the declaration. There are no such allegations in the pleas as will bar the plaintiff from the further prosecution of his suit, and that renders them bad as pleas in bar. The defect is a substantial one, and the demurrer to the replication reaches back to it.\\nOur attention has been, called to the act passed in 1880, and which is sec. 1797 R. L., which, prescribes that no creditor whose debt is provable shall, unless the amount due is in dispute, be allowed, after the filing of a petition in insolvency, to prosecute to final judgment a suit at law or in equity, against the insolvent debtor, unless there is unreasonable delay in obtaining the discharge, and that any such suit shall, on application of the debtor, be stayed to await the determination of the Court of Insolvency upon the question of discharge. That act, it will be noticed, is made applicable to all creditors whose debts axe provable. It is a law affecting the remedy, and is binding upon non-resident as well as' resident creditors.\\nIt is not alleged when the promises and undertakings of the defendant were made. If made after the passage of the act of 1880, they were undoubtedly within and subject to the provisions of that act; if made before, the Legislature had the right to prescribe such rules as to the manner of their enforcement in the courts of the State as would not impair the obligation of the contract, or virtually deprive the plaintiff of a remedy. It is evident that the statute did not contemplate that such a suit should be discontinued, or that the plaintiff should be barred from prosecuting it; it is to be stayed for the period designated, upon application made as provided by the act. The application must be made to the court before which the suit is pending, and is in the nature of a motion for a continuance, for the reasons specified in the act. Such an application, or motion, would present an issuable fact for the determination of the court; and if the facts are found that entitle the debtor to a stay of the proceedings, it is made the duty of the court to continue the cause.\\nAs pleas in bar are not proper pleadings to present such an issue, and cannot be treated as an equivalent for an application or motion of the character indicated, the judgment of the County Court adjudging the replication sufficient is affirmed, and the cause remanded.\"}"

vt/1548939.json

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+"{\"id\": \"1548939\", \"name\": \"In re Jack R. ABELL\", \"name_abbreviation\": \"In re Abell\", \"decision_date\": \"1997-04-22\", \"docket_number\": \"No. 97-060\", \"first_page\": \"620\", \"last_page\": \"621\", \"citations\": \"166 Vt. 620\", \"volume\": \"166\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:05:04.479290+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In re Jack R. ABELL\", \"head_matter\": \"In re Jack R. ABELL\\n[697 A.2d 340]\\nNo. 97-060\\nApril 22, 1997.\", \"word_count\": \"753\", \"char_count\": \"4644\", \"text\": \"Pursuant to the recommendation of the Professional Conduct Board filed February 18, 1997, and approval thereof, it is hereby ordered that Jack R. Abell, Esq., is disbarred for the reasons set forth in the Board's Final Report attached hereto for publication as part of the order of this Court. A.O. 9, Rule 8E.\\nFINAL REPORT TO THE SUPREME COURT\\nWe received the final report of the hearing panel. The parties were advised that they could present oral argument to the Board, but both parties have waived that opportunity.\\nWe hereby adopt the hearing panel report as our own.\\nWe recommend to the Supreme Court that Jack R. Abell be disbarred from the practice of law.\\nI. Procedural History.\\n1. The petition of misconduct was filed on October 8, 1996.\\n2. Respondent's acceptance of service is dated September 27,1996.\\n3. Mr. Amidon entered his appearance on behalf of respondent on October 22, 1996. At that time, Mr. Amidon notified the Board that Mr. Abell would not be filing an answer in this matter.\\n4. In a letter dated October 22, 1996, Mr. Amidon was notified that, pursuant to Administrative Order No. 9, Rule 8C, respondent's election not to file an answer would be treated as an admission of the allegations contained in the petition of misconduct.\\n5. In a letter dated January 28, 1997, Mr. Amidon acknowledges receipt of the October 22,1996 letter.\\nII. Findings.\\nPursuant to Rule 8C, the charges outlined in the petition of misconduct are admitted. A copy of the petition is attached as Exhibit A.\\nIII. Sanctions.\\nThe panel makes the following findings of fact as to sanctions:\\n1. Respondent was admitted to practice law in the State of Vermont on February 4, 1975.\\n2. Respondent was a partner in the law firm of Abell, Kenlan, Schwiebert & Hall. He was a managing partner and had sole control of the firm's bookkeeping functions.\\n3. During the years of 1990 through 1994, respondent embezzled $408,260 from his law firm, Abell, Kenlan, Schwiebert & Hall or other entities associated -with the law firm.\\n4. There are no mitigating factor's.\\nRespondent's actions violate DR 1-102(A)(3) (engaging in illegal conduct involving moral turpitude), DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) and DR 1-102(A)(7) (engaging in any other conduct that adversely reflects on the lawyer's fitness to practice law).\\nAs defined in the ABA Guidelines for Imposing Lawyer Discipline, the foregoing are aggravating factors in determining the appropriate sanctions.\\nThe ABA standards state the following with respect to violations of this nature and magnitude:\\nSection 5.11 recommends disbarment \\\"when a lawyer engages in criminal conduct a necessary element of which includes . . . false swearing, misrepresentation, fraud . . . misappropriation or theft. . . .\\\"\\nSection 7.1 recommends disbarment \\\"when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, with the intent to obtain a benefit for the lawyer . . . and causes serious or potentially serious injury to . . . the legal system.\\\"\\nBy embezzling the funds from his firm, respondent has violated one of the most basic professional obligations to the public, the pledge to maintain personal honesty and integrity. The only appropriate sanction in this matter is disbarment.\\nPETITION OF MISCONDUCT\\nPursuant to Administrative Order 9, Rule 8C, bar counsel hereby initiates formal disciplinary proceedings against respondent for violating the Code of Professional Responsibility. The petition is based on the following information:\\n1. Jack R. Abell was admitted to practice law in the State of Vermont on February 4, 1975 and has been on inactive status since February 11, 1995.\\n2. Respondent was a partner in the law firm of Abell, Kenlan, Schwiebert & Hall. He was a managing partner and had sole control of the firm's bookkeeping functions \\u2014 with the assistance of two in-house accounting clerks.\\n3. In 1990 respondent began embezzling funds from the law firm for his own personal use. Respondent, over the years, used several different methods to embezzle money and remain undetected. In 1994 one of the accounting clerks noticed a suspicious transaction and brought it to the attention of the other partners.\\n4. From 1990 through 1994 respondent embezzled $408,260 belonging to the law firm of Abell, Kenlan, Schwiebert & Hall or other entities associated with the law firm.\\n5. Respondent embezzled no client funds.\\n6. Respondent is in violation of DR 1-102(A)(3), DR 1-102(A)(4) and DR 1-102(A)(7) of the Code of Professional Responsibility.\"}"

vt/1605886.json

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+"{\"id\": \"1605886\", \"name\": \"Fireman's Fund Insurance Company v. CNA Insurance Company and Sumitomo Marine Management (USA), Inc.\", \"name_abbreviation\": \"Fireman's Fund Insurance v. CNA Insurance\", \"decision_date\": \"2004-09-17\", \"docket_number\": \"No. 03-035\", \"first_page\": \"215\", \"last_page\": \"238\", \"citations\": \"177 Vt. 215\", \"volume\": \"177\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T22:16:33.838236+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Amestoy, C.J., Dooley, Johnson and Skoglund, JJ., and Allen, C.J. (Ret.), Specially Assigned\", \"parties\": \"Fireman\\u2019s Fund Insurance Company v. CNA Insurance Company and Sumitomo Marine Management (USA), Inc.\", \"head_matter\": \"2004 VT 93\\nFireman\\u2019s Fund Insurance Company v. CNA Insurance Company and Sumitomo Marine Management (USA), Inc.\\n[862 A.2d 251]\\nNo. 03-035\\nPresent: Amestoy, C.J., Dooley, Johnson and Skoglund, JJ., and Allen, C.J. (Ret.), Specially Assigned\\nOpinion Filed September 17, 2004\\nRobert Reis, John C. Holler and Matthew D. Anderson of Webber, Reis, Holler & Urso, LLP, Rutland, for Plaintiff-Appellant/CrossAppellee.\\nKaveh S. Shahi of Cleary Shahi Associates, P.C., Rutland, for Defendant-Appellee/Cross-Appellant CNA Insurance Co.\\nWilliam D. Riley of Paul Frank & Collins, Burlington, and Richard H. Nicolaides, Jr. and Nina Markoutsis of Bates & Carey, Chicago, Illinois, for Defendant-Appellee Sumitomo Marine Management, Inc.\\nChief Justice Amestoy sat for oral argument but did not participate in this decision.\", \"word_count\": \"8780\", \"char_count\": \"53581\", \"text\": \"Dooley, J.\\n\\u00b6 1. Plaintiff Fireman's Fund Insurance (Fireman's) appeals, and defendant CNA Insurance Company (CNA) cross-appeals, from a Rutland Superior Court order denying in part and granting in part the parties' motions for summary judgment. In the superior court, Fireman's brought a declaratory judgment action to determine the priority of coverage for three insurance policies, issued respectively by Fireman's, CNA, and Sumitomo Marine Management (USA), Inc. (Sumitomo). Each of the policies provides some degree of coverage for injuries resulting from the automobile accident that is the subject of several underlying lawsuits. The accident involved two passenger vehicles and a tank tractor truck owned by Pouliot and Corriveau, Inc. (P&C) that was pulling a milk tank \\\"pup\\\" trailer leased from Agri-Mark, Inc. (AMI). CNA was the primary insurer for both P&C and its driver, Burton Heath, with Sumitomo providing a commercial excess umbrella policy for these insureds. Fireman's was AMI's primary carrier. Pursuant to the declaratory judgment action, the trial court found that Fireman's and CNA shared primary coverage responsibility for any claims against P&C, Heath, and AMI and that in the event that these two policies were exhausted, Sumitomo had coverage responsibility for any excess liability against the three parties. We affirm in part, and reverse and remand in part.\\n\\u00b6 2. This case arises out of an automobile accident that occurred on June 1, 1997 on Route 7 near the village of Brandon. On that date, Ronald Gilligan was driving south on Route 7 with his wife, daughter and his daughter's friend in the car. Gilligan attempted to pass a minivan driven and occupied by members of the Clodgo family. When Gilligan pulled into the northbound lane to pass, he ran head-on into the oncoming P&C truck, driven by P&C's employee Heath. At the time of the accident, the truck was hauling a trailer owned by AMI and leased by P&C pursuant to an oral lease between the two parties. All four occupants of the Gilligan vehicle were killed, and members of the Clodgo family were injured.\\n13. After the accident, several lawsuits were filed against P&C, Heath, and AMI. The suits claimed that Heath was negligent in the operation of the truck and that both P&C and AMI were responsible for his negligence under respondeat superior. One suit against AMI, filed by the estate of a passenger in the Gilligan vehicle, alleged that the \\\"pup\\\" trailer was unreasonably dangerous and not suitable for the purpose for which it was being used. Gilligan's insurer paid out its policy limit of $300,000, which the various claimants shared. Fireman's has been defending AMI in these suits, but has not defended or contributed to the defense of Heath or P&C. Similarly, CNA has been defending Heath and P&C, but has not provided a defense for AMI. The Clodgo family settled its action against Heath and P&C after these lawsuits were filed. The settlement agreement provides that if CNA is able to recover any sums from Fireman's for contribution or reimbursement, CNA will pay the Clodgos one-third of the recovery up to $25,000.\\n\\u00b64. In the aggregate, significant policy coverage is available for satisfaction of any judgments or settlements that may result from the claims. Both the CNA and Fireman's policies provide $1 million of auto liability coverage, and Sumitomo's commercial excess umbrella policy has a limit of $2 million. Our responsibility, as was the superior court's, is to establish the coverage priorities among the policies before us.\\n\\u00b6 5. All parties to the declaratory judgment action moved for summary judgment. Fireman's urged the court to find that it is obligated to provide defense and indemnification for the insureds only upon the exhaustion of both the CNA and Sumitomo policies. In contrast, CNA argued that it shares primary coverage with Fireman's for liability for P&C and Heath, and that Fireman's alone provides coverage for AMI's liability. Sumitomo, in turn, asserted that CNA and Fireman's are primary for P&C's and Heath's liability and that Fireman's is also primary for AMI's liability. According to Sumitomo, it is obligated to provide coverage only for P&C and Heath, and only then after both CNA's and Fireman's policies are exhausted.\\n\\u00b6 6. After considering the parties' motions for summary judgment, the court issued an order and made the following rulings: (1) Sumitomo's motion was granted \\\"insofar as the CNA and Fireman's policies must be exhausted before Sumitomo must contribute to the coverage of P&C, Heath and AMI,\\\" but was denied \\\"insofar as it sought to avoid responsibility for claims arising from Heath and AMI\\\"; (2) CNA's motion was granted \\\"insofar as Fireman's must share primary responsibility for the P&C and Heath claims,\\\" but was denied \\\"insofar as it sought to escape liability for claims arising from Heath and AMI liability\\\"; and (3) Fireman's motion was granted \\\"insofar as CNA must share primary responsibility with Fireman's for claims arising from P&C's, Heath's and AMI's liability,\\\" but denied \\\"insofar as it sought to avoid primary responsibility for any claims.\\\"\\n\\u00b6 7. Following the issuance of the order, Fireman's filed an appeal with this Court, and CNA cross-appealed. Thereafter, Sumitomo withdrew from the appeal. This withdrawal has little effect on this opinion because we still must address Fireman's arguments on the priority of coverage responsibilities with respect to all three carriers. On appeal, Fireman's contends that it is excess over both the CNA and Sumitomo policies. CNA cross-appeals, arguing that Fireman's shares primary coverage responsibility for P&C and Heath and that it provides no coverage for AMI even though AMI is a listed as an additional insured.\\n\\u00b6 8. We review the decisions on the parties' summary judgment motions using the same standard as the trial court. Madden v. Omega Optical, Inc., 165 Vt. 306, 309, 683 A.2d 386, 389 (1996). Summary judgment is appropriate \\\"if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\\\" V.R.C.P. 56(e)(3). We will take as true the facts alleged by the nonmoving party, and \\\"give the nonmoving party the benefit of all reasonable doubts and inferences.\\\" Chamberlain v. Metro. Prop. & Cas. Ins. Co., 171 Vt. 513, 514, 756 A.2d 1246, 1248 (2000) (mem.). Here, our inquiry largely turns on the policies' language. Construction of the language of insurance contracts is a question of law, not of- fact. Waters v. Concord Group Ins. Cos., 169 Vt. 534, 535, 725 A.2d 923, 925 (1999) (mem.). Accordingly, we make our own inquiry into the legal effect of the contracts' terms and the relationships between them. Gannon v. Quechee Lakes Corp., 162 Vt. 465, 469, 648 A.2d 1378, 1380 (1994).\\n\\u00b6 9. We interpret insurance contracts according to their terms and the intent of the parties as expressed by the policies' language. City of Burlington v. Nat'l Union Fire Ins. Co., 163 Vt. 124, 127, 655 A.2d 719, 721 (1994). \\\"Disputed terms are to be read according to their plain, ordinary and popular meaning.\\\" Chamberlain, 171 Vt. at 514, 756 A.2d at 1248. Any ambiguity will be resolved in the insured's favor, but we will not deprive the insurer of unambiguous terms placed in the contract for its benefit. Peerless Ins. Co. v. Wells, 154 Vt. 491, 494, 580 A.2d 485, 487 (1990).\\n\\u00b6 10. The questions in this appeal are complicated and interrelated. Logically, there are nine starting questions \\u2014 that is, for each of the three carriers, does the policy extend coverage to each of the three defendants in the underlying litigation? For each of the carriers and de fendants, for which the answer to the coverage question is positive, we must then determine the priority of coverage \\u2014 that is, is it primary, secondary or tertiary with respect to another carrier's coverage? At some point in this litigation, virtually every possible question and answer was advanced by one or more of the carriers.\\n\\u00b6 11. The decision in the trial court and the framing of the appeal issues has narrowed the number of questions we must answer. Most importantly, the trial court found, or in some instances assumed, that the answers to the nine opening questions were all affirmative, and that each of the three carriers had, through the applicable policy, extended coverage to all of the three defendants in the underlying litigation. For Fireman's, the trial court apparently based its conclusion upon the deposition testimony of its employee who was empowered to state its position and admitted that its policy covered the liability of P&C and Heath, as well as AMI. Fireman's has not contested this conclusion on appeal, and, as a result, we do not consider its validity.\\n\\u00b6 12. CNA did not contest the trial court's conclusion that CNA's policy covered P&C and Heath. CNA did, however, contest coverage of AMI in the trial court, and we must answer this appeal question. The situation with respect to Sumitomo is essentially the same because its coverage is derivative of CNA's.\\n\\u00b6 13. The trial court also found that each carrier's coverage position \\u2014 primary, secondary or tertiary \\u2014 was the same with respect to all defendants in the underlying litigation. This conclusion is not logically required. For example, it is entirely possible that a carrier could have primary coverage responsibility for one defendant in the underlying litigation, and only secondary or tertiary excess coverage for the liability of another defendant. While some of these possibilities were raised below, they are not part of the carriers' positions on appeal. Thus, while each of the remaining carrier parties in this appeal \\u2014 Fireman's and CNA \\u2014 vigorously argues that its coverage is in some way excess with respect to that of the other, neither argues that its position as either primary or excess varies among defendants.\\n\\u00b6 14. Thus, we are left with three main questions in this appeal: (1) which of the Fireman's and CNA policies extends primary coverage for the liability of defendants and which, if any, extends excess coverage; (2) what is the coverage position of Sumitomo; and (3) do the policies of CNA and Sumitomo extend liability coverage to AMI. Fireman's appeal raises the first two of these issues. CNA's cross-appeal raises the third.\\n\\u00b6 15. The superior court resolved the first question by concluding that both policies extended primary coverage so that each carrier was obligated to pay a pro rata share of any judgment up to the applicable policy maximum. CNA agrees with and defends that position here. Fireman's agrees that CNA's coverage responsibility is primary, but argues that its obligation is for excess coverage that comes into play only when the CNA policy amounts are exhausted. The resolution of this question requires us to look first and foremost at the language of the policies.\\n\\u00b6 16. CNA contends that Fireman's shares primary coverage responsibility because AMI's trailer is a covered auto under the Fireman's policy and the policy states:\\nWe will pay all sums an insured legally must pay as damages because of bodily injury or property damage to which this insurance applies, caused by an accident and resulting from the ownership, maintenance or use of a covered auto.\\nCNA's policy contains similar general coverage language. If these were the only relevant provisions, CNA's position, and the trial court decision, would clearly be correct without additional analysis. However, each of the policies also contains an \\\"other insurance\\\" clause that pertains directly to this action. The application of these clauses is determinative of this case.\\n\\u00b6 17. \\\"Other insurance\\\" clauses are used by insurers to \\\"limit an insurer's liability where other insurance may cover the same loss.\\\" 15 L. Russ & T. Segalla, Couch on Insurance 3d \\u00a7 219:1 (1999). Whether an insurer's \\\"other insurance\\\" clause will operate in a given situation depends largely on the specific language of the relevant policies. Id. Thus, determining the effect of these two carriers' \\\"other insurance\\\" clauses requires us to scrutinize the language of the policies and any endorsements thereto.\\n\\u00b6 18. Fireman's policy, a commercial business auto coverage policy, contains the following \\\"other insurance clause\\\" in Section IV, subsection B:\\n5. Other Insurance\\na. For any covered auto you own, this Coverage Form provides primary insurance. For any covered auto you don't own, the insurance provided by this coverage form is ex cess over any other collectible insurance. However, while a covered auto which is a trailer is connected to another vehicle, the Liability Coverage this Coverage form provides for the trailer is:\\n(1) Excess while it is connected to a motor vehicle you do not own.\\n(2) Primary while it is connected to a covered auto you own.\\nFireman's policy also has a fleetcover endorsement. \\\"An endorsement is a writing added or attached to a policy which either expands or restricts the insurance in the policy. It becomes a part of the contract when it is issued____\\\" 13A J. Appleman & J. Appleman, Insurance Law and Practice \\u00a7 7537, at 37 (Cum. Supp. 2002). This fleetcover endorsement also has an endorsement that makes several amendments to the commercial auto policy, including the \\\"other insurance\\\" clause. The amendment to the \\\"other insurance\\\" clause reads:\\n3. Other Insurance \\u2014 Your Policy Will be Amended as Follows:\\nA. Under Section IV\\u2014 Business Auto Conditions:\\nCondition 5: Other Insurance of B. General Conditions is .Amended by Changing the Entire Condition as Follows:\\n5. Other Insurance\\nIf other valid and collectible insurance is available to any insured for a loss we cover under Section II \\u2014 Liability Coverage and Section III Physical Damage, our obligations are limited as follows:\\nThis insurance is excess over any other liability insurance available to any insured.\\nAs this insurance is excess, we will have no duty under Section II liability to defend any claim or suit that any other insurer has a duty to defend. If no other insurer defends, we will undertake to do so, but we will be entitled to the other insured's rights against all other insurers.\\nBecause this insurance is excess over other insurance, we will pay only our share of the amount of loss, if any, that exceeds the sum of:\\n(1) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and\\n(2) The total of all deductibles and self-insured amounts under all that other insurance.\\nSection II Liability Coverage and Section III Physical Damage coverage are not excess to any excess insurance any insured bought specifically to apply in excess of the limits of insurance shown in the declarations of this coverage part.\\n\\u00b6 19. Fireman's urges us to read these provisions \\u2014 the clause in Section IV, subsection B of the main policy, the first three paragraphs of the endorsement, and the fourth paragraph of the endorsement \\u2014 as three independent \\\"other insurance\\\" clauses. CNA in turn argues that the \\\"other insurance\\\" clause set forth in the endorsement is inapplicable because it is an amendment to the fleetcover endorsement and not to the main body of the policy. In CNA's view, the purpose of the fleetcover endorsement is to expand coverage to subsidiaries so that fleetcover provisions apply only if a subsidiary's liability is at issue. Since AMI is the insured, and not the subsidiary of the insured, CNA argues that it is inapplicable here.\\n\\u00b6 20. We decline to adopt either party's argument. Insurance policies and their endorsements must be read together as one document and \\\"the words of the policy remain in full force and effect except as altered by the words of the endorsement.\\\" Hamilton v. Khalife, 735 N.Y.S.2d 564, 566 (App. Div. 2001) (internal quotations omitted); see Waters v. Concord Group Ins. Cos., 169 Vt. at 536, 725 A.2d at 927; see also Preferred Nat'l Ins. Co. v. Docuseareh, Inc., 829 A.2d 1068, 1074-75 (N.H. 2003) (\\\"[A]n endorsement attached to a policy must be read together with the entire policy.\\\"). In this case, the fleetcover endorsement expands the scope of coverage and is incorporated into the main policy. Contrary to CNA's argument, the plain language of the endorsement replaces the \\\"other insurance\\\" clause in the main body of the commercial auto policy with that of the endorsement. The amendment explicitly refers to the policy provision being replaced and provides the new language that now governs. It does not state that the replacement is operative only with respect to expanded coverage. Accordingly, we conclude that the \\\"other insurance\\\" clause in the endorsement is operative here, in its entirety.\\n\\u00b6 21. CNA's policy also contains an \\\"other insurance\\\" clause. CNA's clause states:\\n5. Other Insurance \\u2014 Primary and Excess Insurance Provisions\\na. This Coverage Form's Liability Coverage is primary for any covered \\\"auto\\\" while hired or borrowed by you and used exclusively in your business as a \\\"trucker\\\" and pursuant to operating rights granted to you by a public authority. This Coverage Form's Liability Coverage is excess over any other collectible insurance for any covered \\\"auto\\\" while hired or borrowed from you by another \\\"trucker\\\". However, while a covered \\\"auto\\\" which is a \\\"trailer\\\" is connected to a power unit, this Coverage Form's Liability Coverage is:\\n1. On the same basis, primary or excess, as for the power unit if the power unit is a covered \\\"auto\\\".\\n2. Excess if the power unit is not a covered auto.\\nb. Any trailer Interchange Coverage provided by this Coverage Form is primary for any covered \\\"auto.\\\"\\nc. Except as provided in paragraphs a. and b. above, this Coverage Form provides primary insurance for any covered \\\"auto\\\" you own and excess insurance for any covered \\\"auto\\\" you don't own.\\nd. For Hired Auto Physical Damage coverage, any covered \\\"auto\\\" you lease, hire, rent or borrow is deemed to be a covered \\\"auto\\\" you own. However, any \\\"auto\\\" that is leased, hired, rented or borrowed with a driver is not a covered auto.\\ne. Regardless of the provisions of paragraphs a., b., and c. above, this Coverage Form's Liability Coverage is primary for any liability assumed under an \\\"insured contract.\\\"\\nf. When this Coverage Form and any other Coverage Form or policy covers on the same basis, either excess or primary, we will pay only our share. Our share is the proportion that the Limit of insurance of our Coverage Form bears to the total of the limits of all the Coverage Forms and policies covering on the same basis.\\nThe effect of these competing clauses must be determined, first if possible, according to their terms. See State Farm Mut. Auto Ins. Co. v. Powers, 169 Vt. 230, 237, 732 A.2d 730, 735 (1999).\\n\\u00b6 22. The trial court found that CNA's and Fireman's \\\"other insurance\\\" clauses were mutually repugnant and therefore each was responsible for primary coverage. We agree that if the clauses are mutually repugnant, the result is that neither is effective and each insurer shares primary coverage. Champlain Cos. Co. v. Agency Rent-a-Car, Inc., 168 Vt. 91, 97-98, 716 A.2d 810, 814 (1998). In Powers, 169 Vt. at 237, 732 A.2d at 735, we explained that in cases involving \\\"multiple insurers all claiming to provide either excess or primary coverage\\\" the insurers would share the coverage responsibility on a pro rata basis. We disagree, however, that the clauses are mutually repugnant in this case.\\n\\u00b6 23. As courts have worked to reconcile policies with competing \\\"other insurance\\\" clauses certain rules of construction have emerged. See generally D. Richmond, Issues and Problems in \\\"Other Insurance,\\\" Multiple Insurance, and Self-Insurance, 22 Pepp. L. Rev. 1373 (1995). If policies have dissimilar \\\"other insurance\\\" clauses most courts \\\"attempt to reconcile the clauses in a manner that -will give effect to the intent of the parties.\\\" Id. at 1392. We adopted this general approach in Powers, for cases in which our reconciliation does not violate public policy or compromise coverage for the insured. 169 Vt. at 235, 732 A.2d at 734 (citing Aetna Cas. & Sur. Co. v. CNA Ins. Co., 606 A.2d 990, 992-93 (Conn. 1992)).\\n\\u00b6 24. Contrary to CNA's argument, we do not construe an \\\"other insurance\\\" clause against the insurer. To the extent we have adopted this rule of construction, it is to aid the insured, see Cooperative Fire Ins. Ass'n v. Bizon, 166 Vt. 326, 333, 693 A.2d 722, 727 (1997) (interpreting policy exclusion broadly in favor of insured), not another insurance company in litigation with the insurer over the allocation of coverage responsibility. See United States Fire Ins. Co. v. Gen. Reinsurance Corp., 949 F.2d 569, 574 (2d Cir. 1991); Ellis v. Royal Ins. Cos., 530 A.2d 303, 309 (N.H. 1987).\\n\\u00b6 25. Application of these principles here leads us to the conclusion that the other insurance provisions can be reconciled. Fireman's \\\"other insurance\\\" clause unambiguously states that it is \\\"excess over any other liability insurance available to any insured.\\\" (Emphasis added.) CNA's policy contains no such excess statement. Rather, CNA's \\\"other insurance\\\" provision first states that it is \\\"primary for any covered 'auto' while hired or borrowed by you and used exclusively in your business as a 'trucker' \\\" and that it is \\\"excess over any other collectible insurance for any covered 'auto' while hired or borrowed from you by another trucker.\\\" The P&C trailer truck was a covered automobile and was being used at the time of the accident by P&C in its business as a trucker. The superior court found, and Fireman's has not contested, that the \\\"pup\\\" trailer was a covered auto. Since the power unit for the trailer is a covered auto, coverage for the trailer is on the same basis as the power unit under the specific language covering trailers, as set forth above. Under the unambiguous language of the CNA \\\"other insurance\\\" clause, CNA's coverage obligation is primary, not excess. On their face, the two policies do not have conflicting \\\"other insurance\\\" clauses in the circumstances of this case.\\n\\u00b6 26. CNA argues that despite the policies' language, Fireman's is primary because: (1) the \\\"Endorsement for Motor Carrier Policies of Insurance for Public Liability under Sections 29 and 30 of the Motor Carrier Act of 1980,\\\" commonly known as the MCS-90 endorsement, provides primary coverage, irrespective of the \\\"other insurance\\\" clause; and (2) Fireman's breached its duty to defend its insureds.\\n\\u00b627. CNA contends that the MCS-90 endorsement included in Fireman's policy provides P&C and Heath with primary coverage, regardless of the \\\"other insurance\\\" clause. Congress enacted the Motor Carrier Act of 1980 (MCA), in part, to \\\"address abuses that had arisen in the interstate trucking industry which threatened public safety, including use by motor carriers of leased or borrowed vehicles to avoid financial responsibility for accidents that occurred\\\" while carriers were transporting goods in interstate commerce. Canal Ins. Co. v. Distrib. Servs., Inc., 320 F.3d 488, 489 (4th Cir. 2003); see Motor Carrier Act of 1980, Pub. L. No. 96-296 \\u00a7 3, 94 Stat. 793. As a result of the MCA, motor carriers who transport goods in interstate commerce \\\"must register with the federal government and demonstrate that they have secured adequate financial resources to pay judgments arising from accidents occurring in the course of their transport business.\\\" Pierre v. Providence Wash. Ins. Co., 784 N.E.2d 52, 53 (N.Y. 2002); see 49 U.S.C. \\u00a7 13906(a)(1). Most carriers show they can meet the minimum financial responsibility requirements, set forth by the United States Secretary of Transportation pursuant to 49 U.S.C. \\u00a7 13902(a)(1)(C), 31139, by purchasing liability insurance with an MCS-90 endorsement. The MCS-90 endorsement, which is set out in 49 C.F.R. \\u00a7 387.15 illustration 1, provides in relevant part:\\nIn consideration of the premium stated in the policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of sections 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized to be served by the insured or elsewhere____[N]o condition, provision, stipulation, or limitation contained in the policy, this endorsement, or any other endorsement thereon, or violation thereof, shall relieve the company from liability or from the payment of any final judgment, within the limits of liability herein described, irrespective of the financial condition, insolvency or bankruptcy of the insured. However, all terms, conditions, and limitations in the policy to which the endorsement is attached shall remain in ML force and effect as binding between the insured and the company. The insured agrees to reimburse the company for any payment made by the company on account of any accident, claim, or suit involving a breach of the terms of the policy, and for any payment that the company would not have been obligated to make under the provisions of the policy except for the agreement contained in this endorsement.\\n\\u00b6 28. As the New York Court of Appeals observed, \\\"the endorsement shifts the risk of loss for accidents occurring in the course of interstate commerce away from the public by guaranteeing that an injured party will be compensated even if the insurance carrier has a valid defense based on a condition in the policy.\\\" Pierre, 784 N.E.2d at 58-54; see S. Collier, Tenth Circuit Survey: Insurance Law, 75 Den. U. L. Rev. 1003, 1009 (1998) (stating that the public policy rationale behind MCS-90 endorsement is to protect the public from carriers who do not carry required insurance on their vehicles). The MCS-90 policy, however, does not create coverage where there is none, and accordingly, the endorsement provides that an insurer may seek indemnification if it is eventually determined that the insured is not entitled to payment of claims against it under the policy terms. 49 C.F.R. \\u00a7 387.15; see Progressive Cas. Ins. Co. v. Hoover, 809 A.2d 353, 360 n.11 (Pa. 2002) (explaining that MCS-90 endorsement does not create coverage per se).\\n\\u00b6 29. To give effect to the federal financial responsibility requirements, the MCS-90 endorsement in Fireman's policy farther states:\\nThe limits of the company's liability for the amounts prescribed in this endorsement apply separately to each accident and any payment under the policy because of any one accident shall not operate to reduce the liability of the company for the payment of final judgments resulting from any other accident.\\nThe policy to which this endorsement is attached' provides primary or excess insurance, as indicated by X for the limits shown:\\nX This insurance is primary and the company shall not be liable for amounts in excess of $1,000,000 for each accident.\\nThis insurance is excess and the company shall not be liable for amounts in excess of $_for each accident in excess of the underlying limit of $_for each accident.\\n\\u00b6 30. Under regulations set forth by the Secretary of Transportation, carriers must have at least $750,000 available in coverage and must include the above language in the endorsement. 49 C.F.R. \\u00a7 387.7(a), 387.9. CNA argues that this endorsement renders Fireman's coverage primary despite the \\\"other insurance\\\" clause. In response, Fireman's contends the MCS-90 endorsement is inapplicable to this case because: (1) the endorsement is intended to apply only to claims by members of the public against shippers; (2) the MCS-90 coverage endorsement operates only if the carrier is hauling a nonexempt commodity, and here milk is an exempt commodity; and (3) at the time of the accident AMI was engaged in intrastate, not interstate, commerce. Because the MSC-90 endorsement is a federally mandated inclusion in the policy, we construe its effect in this case according to federal law. Lynch v. Yob, 768 N.E.2d at 1162.\\n\\u00b6 31. Although federal courts considering this issue are split, the majority of circuits have held that the MCS-90 endorsement has no application to disputes between insurers because the purpose of the endorsement is solely to protect injured members of the public. Canal Ins. Co., 320 F.3d at 493; Empire Fire & Marine Ins. Co. v. J. Transp., Inc., 880 F.2d 1291, 1298-99 (11th Cir. 1989); Travelers Ins. Co. v. Transp. Ins. Co., 787 F.2d 1133, 1140 (7th Cir. 1986); Carter v. Vangilder, 803 F.2d 189, 192 (5th Cir. 1986); Grinnell Mut. Reinsur. Co. v. Empire Fire & Marine Ins. Co., 722 F.2d 1400, 1404-05 (8th Cir. 1983); Carolina Cas. Ins. Co. v. Ins. Co. of N. America, 595 F.2d 128, 140-41 (3d Cir. 1979); see also John Deere Ins. Co. v. Nueva, 229 F.3d 853, 857 (9th Cir. 2000) (MCS-90 endorsement does not govern dispute between insurer and insured because purpose is to protect injured member of the public). Those courts not joining the majority have reasoned that despite the public policy rationale of the MCS-90 endorsement, the endorsement may be applicable to allocation arguments between insurers. Prestige Cas. Co. v. Mich. Mut. Ins. Co., 99 F.3d 1340, 1348-49 (6th Cir. 1996); Empire Fire & Marine Ins. Co. v. Guar. Nat. Ins. Co., 868 F.2d 357, 361-64 (10th Cir. 1989). We are in accord with the majority view and find the reasoning of the Fourth Circuit's opinion in Canal Insurance Co. particularly helpful.\\n\\u00b6 32. In Canal Insurance Co., the court considered whether the MCS-90 endorsement operated only \\\"when necessary to protect injured members of the public.\\\" 320 F.3d at 492. In deciding to join the majority of its sister circuits, the court reasoned that the' MCS-90 endorsement should be inapplicable to coverage disputes between insurers because this conclusion adheres more faithfully to the endorsement's literal language. Id. at 493. The court explained that the MCS-90 endorsement specifically states that all policy limitations shall remain in full effect, and that \\\"[tjhis language makes clear that the MCS-90 endorsement... does not alter the relationship between the insured and the insurer as otherwise provided in the policy.\\\" Id. Because the insurer/insured relationship is not altered, the court reasoned that the endorsement cannot affect coverage allocation between insurers. We agree with this analysis and conclude that because the MCS-90 endorsement is included in the policy by federal mandate to protect injured members of the public from carriers with inadequate insurance coverage, it is not implicated when resolving disputes like this one between insurers. See T.H.E. Ins. Co. v. Larsen Intermodal Servs., Inc., 242 F.3d 667, 673 (5th Cir. 2001).\\n\\u00b633. Nevertheless, CNA contends that injured members of the public are involved in this question because of its agreement in settlement of the Clodgo suit. That settlement agreement specifies that CNA will pay the Clodgos up to $25,000 if CNA is able to recover funds from Fireman's. Since the Clodgos are injured members of the public, and they stand to gain from a determination that Fireman's bears primary coverage responsibility under the MCS-90 endorsement, CNA argues that the MCS-90 endorsement must govern in this case. We find no merit to this argument. CNA independently entered into this settlement agreement with the Clodgos. As Fireman's points out, the additional $25,000 will effectively be paid with Fireman's money as part of the $75,000 CNA will gain from a decision in its favor. This contingent fee is not the public protection intended by MCS-90 endorsements.\\n\\u00b6 34. Because we conclude that the MCS-90 endorsement is applicable only where protection of a member of the public is implicated, and we find no such protection interest here, we do not consider Fireman's two additional arguments: milk is an exempt commodity and the carrier was engaged in intrastate, rather than interstate, commerce.\\n\\u00b6 35. We are left with one additional CNA argument as to why Fireman's coverage responsibility should be viewed as primary. CNA contends that Fireman's has breached its duty to defend and settle because it has not participated in, or contributed to, P&C's and Heath's defense in the underlying actions. Fireman's \\\"other insurance\\\" clause, however, explicitly states that since the coverage is excess it has \\\"no duty to defend . any claim or suit that any other insurer has a duty to defend.\\\" Where the policy specifically states that there is no duty to defend when the policy provides excess coverage, we will honor this language provided that an insured's overall coverage is not compromised. See Cotter Corp. v. Am. Empire Surplus Lines Ins. Co., 90 P.3d 814, 834 (Colo. 2004); Jessop v. City of Alexandria, 871 So. 2d 1140, 1147 (La. Ct. App. 2004). This is not a case where both insurers denied that they had primary coverage responsibility. See, e.g., Utica Mut. Ins. Co. v. Miller, 746 A.2d 935, 947 (Md. Ct. Spec. App. 2000) (concluding that insurer had duty to defend where primary insurer had not been identified). Here, CNA never disputed its status as a primary insurer and pursuant to that status has properly undertaken P&C's and Heath's defenses. Therefore, because it is an excess insurer and CNA has always been identified as the primary insurer, we hold that Fireman's has not breached a duty to defend P&C or Heath.\\n\\u00b6 36. Having determined that CNA's coverage is primary, and Fireman's is excess, we must determine the coverage allocation position for Sumitomo. Sumitomo argues that as a \\\"true\\\" excess provider its coverage is not triggered until both CNA's and Fireman's policies are exhausted. CNA also endorses this position. Fireman's, however, contends that its policy is not accessed until both the CNA and Sumitomo policies are depleted or, at a minimum that it is a co-excess insurer with Sumitomo. For the reasons set forth below, we conclude that Fireman's is a secondary policy and Sumitomo is a tertiary policy available only after the other two policies are exhausted.\\n\\u00b6 37. Sumitomo's policy was purchased by P&C and specifically lists CNA as the underlying primary insurer. The policy, which is titled \\\"Commercial Excess Umbrella Policy,\\\" provides coverage in two instances: (1) Coverage A applies where the loss is covered initially by the underlying policy, but the loss is in excess of the underlying policy's limits; and (2) Coverage B applies where the loss is not covered by the underlying policy in the first instance. Coverage A is applicable to this action because it is undisputed that CNA, the underlying insurer, covers the loss. Coverage A provides in relevant part:\\nCoverage A- Excess Follow Form Liability Claims Made or Occurrence Coverage\\nWe will pay, on behalf of an insured, damages in excess of the total Limits of Liability of Underlying Insurance as stated in the Schedule of Underlying Insurance. The terms and conditions of the Scheduled Underlying Insurance are with respect to Coverage A made a part of this policy, except for:\\na. any definition, term or condition therein relating to: any duty to investigate and defend, the Limits of Liability, premium, cancellation, other insurance, our right to recover payment, Extended Reporting Periods, or\\nb. any renewal agreement, and any exclusion or limitation attached to this policy by endorsement or included in the Exclusions applicable under coverage A and B of this policy.\\nWith respect to a. and b. above, the provisions of this policy will apply.\\nLike the other policies in this case, the Sumitomo policy also contains an \\\"other insurance\\\" clause which states:\\nIf other insurance applies to claims covered by this policy, the insurance under this policy is excess and we will NOT make any payments until the other insurance has been used up. This will NOT be true, however, if the other insurance is specifically written to be excess over this policy.\\nThe policy defines \\\"other insurance\\\" as \\\"[ijnsurance other than Scheduled Underlying Insurance or insurance specifically purchased to be excess of this policy affording coverage that this policy also affords.\\\"\\n\\u00b6 38. We agree that Sumitomo's priority position depends on the nature of its policy's coverage. Sumitomo argues that its policy is a \\\"true excess\\\" policy, while Fireman's is merely a \\\"coincidental\\\" excess policy. Although these two types of policies are similar in some respects, there is a fundamental difference in the nature of the risk assumed by each.\\n\\u00b6 39. As the Michigan Supreme Court in Frankenmuth Mutual Insurance Co. v. Continental Insurance Co. explained: \\\"True excess coverage occurs where a single insured has two policies covering the same loss, but one policy is written with the expectation that the primary will conduct all of the investigation, negotiation and defense of claims until its limits are exhausted.\\\" 537 N.W.2d 879, 881 n.4 (Mich. 1995) (internal quotation marks omitted). \\\"True\\\" excess policies are generally purchased to provide the insured protection in the event of a catastrophic loss that exceeds the limits of the insured's primary policy. See Liberty Mut. Ins. Co. v. Harbor Ins. Co., 603 A.2d 300, 302 (R.I. 1992) (quoting 8A J. Appleman, Insurance Law and Practice \\u00a74909.85, at 452, 453-54 (1981)). Because \\\"true\\\" excess policies are designed to supplement, not replace, primary coverage, they generally require underlying primary insurance in a specific sum and list the primary insurance company in the body of the policy. See Penton v. Hotho, 601 So. 2d 762, 764 n.3 (La. Ct. App. 1992). \\\"True\\\" excess insurers also require that the named insured purchase primary insurance for the same risks. Richmond, supra, at 1399. These requirements allow the \\\"true\\\" excess insurer to accurately assess the risk it is undertaking. Moreover, because the \\\"true\\\" excess policy takes effect only after the primary policy is exhausted, liability for the covered claims does not attach when the loss occurs. Id. Rather, liability attaches when the underlying insurance is exhausted. In contrast, \\\"coincidental\\\" excess insurance is primary insurance that is rendered excess by operation of a policy provision, like an \\\"other insurance\\\" clause, in a specific set of circumstances. Bosco v. Bauermeister, 571 N.W.2d 509, 516 (Mich. 1997). A primary policy with an \\\"other insurance\\\" clause is a device used by the insurer to limit liability where other primary insurance exists. Penton, 601 So. 2d at 764 n.3. If an \\\"other insurance\\\" clause operates, as it does here, the policy with the controlling \\\"other insurance\\\" clause becomes secondarily liable. See CNA Ins. Co. v. Selective Ins. Co., 807 A.2d 247, 254 (N.J. Super. 2002). This does not mean, however, that like the \\\"true\\\" excess policy, liability attaches only if the primary policy is exhausted. Rather, where a primary policy is secondarily liable because of an \\\"other insurance\\\" clause, liability attaches at the moment of the loss.\\n\\u00b640. Although Fireman's has disputed this characterization, we conclude that Sumitomo's policy is a \\\"true\\\" excess policy and CNA's is a \\\"coincidental\\\" policy. Sumitomo's policy specifically states that it is excess to the underlying scheduled policy. Unlike Fireman's policy, the language in the body of the policy does not state that it is excess if other insurance exists; rather, Sumitomo's policy requires the existence of other insurance and under no set of facts could it be a primary policy. In contrast, if CNA's insurance had not been available or identifiable, Fireman's policy would have been primary in this litigation. The fact that Fireman's policy is excess under a certain set of circumstances does not transform it from a primary policy with an \\\"other insurance\\\" clause into a \\\"true\\\" excess policy. Bosco, 571 N.W.2d at 516. Operation of the \\\"other insurance\\\" clause does not obviate the fact that Fireman's became liable in the underlying lawsuits at the moment of the loss.\\n\\u00b6 41. Having determined the nature of the policies, we join the majority of courts that have considered a conflict between a \\\"true\\\" and \\\"coincidental\\\" excess provider and hold that the true excess policy need not contribute until after the \\\"coincidental\\\" insurer's limits are exhausted. See, e.g., Allstate Ins. Co. v. Am. Hardware Mut. Ins. Co., 865 F.2d 592, 595 (4th Cir. 1989); Occidental Fire & Casualty Co. v. Brocious, 772 F.2d 47, 54 (3d Cir. 1985); Allstate Ins. Co. v. Employers Liab. Assurance Corp., 445 F.2d 1278, 1284 (5th Cir. 1971); Ins. Co. of N. Am. v. Am. Econ. Ins. Co., 746 F. Supp. 59, 64 (W.D. Okla. 1990); Aetna Ins. Co. v. State Auto. Mut. Ins. Co., 368 F. Supp. 1278, 1282 (W.D. Ky. 1973); Bosco, 571 N.W.2d at 518; Liberty Mut. Ins. Co., 603 A.2d at 302-03; State Farm Fire & Cas. Co. v. LiMauro, 482 N.E.2d 13, 18 (N.Y. 1985); see also Richmond, supra, at 1400 (explaining that primary policies rendered excess by operation of \\\"other insurance\\\" provisions are not transformed into \\\"true\\\" excess policies). We conclude that this rule best allocates the coverage in relation to the risk assumed by the carriers.\\n\\u00b6 42. Based on the allocation rule we have adopted, we hold that Fireman's coverage is secondary and must be exhausted before Sumitomo's coverage under its true excess policy is applicable.\\n\\u00b6 43. We now turn to the third, cross-appeal issue \\u2014 whether CNA's policy extends liability coverage to AMI. Sumitomo originally joined CNA's position that it did not extend such coverage, but our holding that Sumitomo's coverage commences only after that of Fireman's makes Sumitomo's involvement superfluous.\\n\\u00b6 44. CNA argues that its policy does not cover the AMI \\\"pup\\\" trailer or, if it does, the coverage is more limited than that for P&C and Heath and is excess. The applicable endorsement in the CNA policy lists, as an additional insured, \\\"all trailers owned by Agrimark and leased to Pouliot & Corriveu\\\" under a section titled \\\"Designation or Description of Leased 'Autos.'\\\" The policy's definition of \\\"auto\\\" includes a trailer such as the one involved in this accident. The policy defines \\\"leased auto\\\" as: \\\"an 'auto' leased or rented to [the insured]... under a leasing or rental agreement that requires [the insured] to provide direct primary insurance to the lessor.\\\"\\n\\u00b6 45. The dispute over CNA's coverage of the trailer relates to this definition of a leased auto. CNA contends that the definition of \\\"leased 'auto'\\\" excludes coverage for the trailer involved in the accident because it was not leased pursuant to a leasing or rental agreement that required P&C to provide direct primary insurance to AMI. In opposition, Fireman's argues that the definition of \\\"leased auto\\\" should not be relied upon because it is a mere technicality and in the alternative, if we decide the definition does apply, the fact that there is no written agreement showing that P&C agreed to provide AMI with direct primary insurance should not be dispositive because other extrinsic evidence demonstrates that P&C intended to provide direct primary insurance for AMI.\\n\\u00b6 46. The summary judgment record has developed the underlying facts only to a limited extent. The parties entered into a written lease agreement in 1984 whereby AMI leased equipment to P&C. In this lease, AMI agreed to provide insurance on all the equipment listed in an attached schedule. The lease further provided that P&C and AMI would annually review their insurance obligations to determine which party could most economically secure insurance in the coming year. If, pursuant to these discussions, P&C became responsible for providing the insurance, the lease specified that P&C would then be required to name AMI as an insured party. The record does not tell us whether the parties engaged in this annual negotiation. The trailer involved in this accident was not listed on the schedule attached to the 1984 lease and was, instead, the subject of an oral lease agreement. Following the accident, the parties signed a written lease that included the trailer, but this lease is silent on insurance.\\n\\u00b6 47. As explained above, our task in resolving this dispute is to ascertain the parties' intent by first giving effect to the policies' language. City of Burlington, 163 Vt. at 127, 655 A.2d at 721. Although we construe ambiguous terms in favor of the insured and to favor complete coverage, we must give effect to the clear terms of the insurance contract. See Bizon, 166 Vt. at 333, 693 A.2d at 727. In this case, the definition of \\\"leased auto\\\" in CNA's endorsement is clear, and it limits the general statement of the equipment covered by the endorsement. The definition may be technical, as Fireman's asserts, but it is applicable to this dispute. Thus, our question becomes whether the lease arrangement between P&C and AMI required P&C to provide direct primary insurance for AMI.\\n\\u00b6 48. Fireman's argues that P&C must have agreed to provide primary insurance for AMI because: (1) it listed AMI as an additional insured; (2) the trailer involved in the accident was specifically listed in the CNA policy; (3) CNA's agent testified in a deposition that per the arrangement between P&C and AMI certain vehicles \\\"were to be listed on the policy for liability only\\\"; and (4) an AMI employee stated in an affidavit that AMI required lessees to provide insurance and to prove as much by giving AMI a certificate of insurance, which was done in this case. In opposition, CNA claims that: (1) the 1984 lease shows that AMI, not P&C, was required to provide insurance and this reflects the intent of the parties; (2) the listing of AMI as an additional insured is meaningless because the definition of \\\"leased 'auto'\\\" is controlling; (3) the listing of the \\\"pup\\\" trailer does not show an intent to cover the trailer and, more importantly, the definition of \\\"leased 'auto' \\\" specifies that insurance must be provided for the lessor, not the leased equipment; (4) CNA's agent's testimony \\\"is consistent in that he was given a list of the leased vehicles and told to insure those vehicles for liability only\\\"; and (5) the certificate of insurance given to AMI is evidence only of the types of insurance P&C carried. Although the superior court recited much of this conflict, and found that CNA was responsible for coverage of AMI, it did not specify how it resolved the conflict.\\n\\u00b6 49. Each party in this case has its own version of the oral lease's terms, and each version is supported by viewing certain important facts in a different light. Given the parties' conflicting evidence, the fact that no written record of the oral lease exists, and that resolving the terms of the oral lease is critical to determining whether CNA is responsible for covering the trailer, we conclude that this issue cannot be resolved on summary judgment. There are disputed issues of material fact that prevent summary judgment. See V.R.C.P. 56(c). Therefore, we remand this issue to the trial court.\\n\\u00b6 50. If on remand the trial court determines that under the endorsement CNA must provide coverage for the trailer, then given the terms of CNA's \\\"other insurance\\\" clause and our holding above, that coverage is primary. If the endorsement does not apply to these circumstances, Fireman's has the sole coverage responsibility for AMI in the litigation in which AMI is named.\\nAffirmed in part; reversed and remanded in part for proceedings consistent with this opinion.\\nThe issuing company was Transcontinental Insurance Company. CNA is Transcontinental's successor in interest.\\nAccording to the declaratory judgment complaint, the Clodgos filed only one suit. CNA's motion for summary judgment references only one Clodgo suit, and the complaint is attached. The complaint indicates that the suit is only against P&C and Heath. The settlement agreement, which was attached to CNA's reply memorandum in support of its summary judgment motion, states that this action against P&C and Heath will be dismissed with prejudice. Despite the fact that the Clodgos never sued AMI, the settlement agreement releases AMI from liability.\\nThere are actually additional questions because a carrier could have coverage responsibility for a defendant in the underlying litigation with respect to a plaintiff in that litigation but not with respect to another plaintiff. In effect, this occurred because the Clodgos sued P&C and Heath, but not AMI. This additional complexity does not, however, affect our analysis.\\nThe Motor Carrier Act of 1980 (MCA) was preceded by the Interstate Commerce Commission Act of 1935 (ICCA). Prior to 1982, the ICC required form BMC-90 be included in policies. Harold A. Weston, Annotation, Effect of Motor Carrier Act Provisions on Insurance and Indemnity Agreements U.S.C.A \\u00a7 13906, UplOZ) in Allocating Losses Involving Interstate Motor Carriers, 157 A.L.R. Fed. 549, 561 n.2, \\u00a72[a] (1999). The MCS-90 endorsement is almost identical to the BMC-90 form; therefore we consider those cases that consider the BMC-90 form relevant to this appeal even if they predate the MCA. Id.\\nThe MCA incorporated the ICCA, but left jurisdiction with the Interstate Commerce Commission (ICC). The ICC was disbanded in 1996 by the ICC Termination Act of 1995, and its responsibilities were undertaken by the Surface Transportation Board of the Department of Transportation. See Empire Fire & Marine Ins. Co. v. Liberty Mut. Ins. Co., 699 A.2d 482, 491 (Md. Ct. Spec. App. 1997); Lynch v. Yob, 768 N.E.2d 1158, 1161 n.2 (Ohio 2002).\\nAs Prestige and Empire Fire hold, there are actually two alternative rules that can give some effect to MCS-90 endorsements in disputes between insurers. See Prestige Cas. Co., 99 F.3d at 1348; Empire Fire & Marine Ins. Co., 868 F.2d at 361. Prestige and Empire Fire adopt an intermediate position holding that the endorsement negates limiting provisions, such as an \\\"excess coverage\\\" clause, \\\"but does not establish primary liability over other policies that are also primary by their own tenns.\\\" Prestige, 99 F.3d at 1348. In view of our holding, we do not have to decide the result in this case under the intermediate position.\\nWe recognize that this position is undermined by Fireman's decision to cheek the box stating that the policy \\\"to which this endorsement is attached provides primary . insurance.\\\" The first impression of this action is that it is inconsistent with our construction of the policy, as set out above in the body of the opinion. We think, however, the inconsistency is more superficial than real. The alternative box on the federally mandated form requires the insurer to specify the \\\"underlying limit\\\" for each accident over which the policy is excess. Thus, it refers to true excess policies \\\"written.under circumstances where rates were ascertained after giving due consideration to known existing and underlying basic or primary policies.\\\" Loy v. Bunderson, 320 N.W.2d 175, 179 (Wis. 1982); see infra \\u00b6 39-40. Fireman's could not have completed this alternative part of the form. Thus, we are not surprised at the observation of the Fireman's witness in United States Fire Insurance Co. v. Fireman's Fund Insurance Co., 461 N.W.2d 230, 233 n.2 (Minn. Ct. App. 1990), that in twenty-five years of underwriting experience \\\"he could not recall an instance where a motor carrier's endorsement had designated excess coverage.\\\" We decide that the checking of the box for primary insurance does not change our conclusion that the MCS-90 endorsement does not affect the allocation of coverage responsibility among carriers. This is essentially the holding of Griffin v. Public Service Mutual Insurance Co., 744 A.2d 204, 207-08 (N.J. Super. Ct. App. Div. 2000), where the carrier failed to fill out the form, but the court held that the form would have 'been irrelevant to the coverage'allocation dispute.\\nFireman's disputes this characterization because the Sumitomo policy contains a \\\"drop down\\\" provision and, according to Fireman's interpretation of the policy, its \\\"other insurance\\\" provision does not apply to the coverage involved in this case. We agree with Sumitomo's argument that the \\\"other insurance\\\" provision is applicable. We do not find the \\\"drop down\\\" provision \\u2014 which applies when the underlying coverage is wholly or partially exhausted \\u2014 inconsistent with the true excess nature of the coverage.\\nFor this reason, we do not address Fireman's argument that Sumitomo failed to argue below that its policy did not cover AMI and its ftrther argument that it had to file a cross-appeal to raise the argument here.\"}"

vt/226600.json

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+"{\"id\": \"226600\", \"name\": \"Robert Reed v. John Glynn\", \"name_abbreviation\": \"Reed v. Glynn\", \"decision_date\": \"1998-12-18\", \"docket_number\": \"No. 97-468\", \"first_page\": \"504\", \"last_page\": \"508\", \"citations\": \"168 Vt. 504\", \"volume\": \"168\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T21:01:19.017122+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.\", \"parties\": \"Robert Reed v. John Glynn\", \"head_matter\": \"Robert Reed v. John Glynn\\n[724 A.2d 464]\\nNo. 97-468\\nPresent: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.\\nOpinion Filed December 18, 1998\\nClaude T. Buttrey of Schuster, Buttrey & Wing, P.A., Lebanon, New Hampshire, for Plaintiff-Appellant.\\nPotter Stewart, Jr., Brattleboro, and William C. Saturley and Gordon J. MacDonald of Nelson, Kinder, Mosseau & Gordon, PC., Manchester, New Hampshire, for Defendant-Appellee.\", \"word_count\": \"1555\", \"char_count\": \"9570\", \"text\": \"Dooley, J.\\nPlaintiff Robert Reed appeals from an adverse judgment entered in the superior court on his claim of malpractice against defendant, John Glynn, the attorney who represented him at state expense in a probation revocation proceeding. Plaintiff argues that the trial court erred in determining that his exclusive right of action is against the state. We agree with the plaintiff and, accordingly, reverse.\\nThe material facts are not in dispute. The defender general is responsible for providing legal services to indigent defendants either personally or through public defenders or other attorneys. See 13 V.S.A. \\u00a7 5253. Defendant, a private attorney, contracted with the defender general to provide representation to indigent defendants in Windsor County in cases in which the public defender is disqualified by a conflict of interest or is otherwise not available.\\nDefendant's contract with the defender general included the following provisions:\\n7. Supervision of Contractor. The Defender General may not supervise or control in any way the representation of persons receiving legal services as defined in paragraph 1 of this agreement.\\n10. Insurance. Before commencing work on this contract the Contractor must provide the following minimum insur anee coverages, (a) Professional liability insurance for any and all services performed under this contract, with minimum coverage of $300,000.00 per occurrence.....No warranty is made that the coverages and limits listed herein are adequate to cover and protect the interests of the Contractor for the Contractor's operations.\\n11. Independence. The Contractor, and any agents and employees of the Contractor, shall act in an independent capacity and not as officers or employees of the State.\\nDefendant was assigned to represent plaintiff in a probation revocation proceeding. After a contested hearing, the court found plaintiff had violated the conditions of his probation and sentenced him to serve three-to-five years in jail. Plaintiff was dissatisfied with defendant's representation in part because he did not explore a favorable plea agreement with the probation officer and the state's attorney. Plaintiff acquired new counsel who secured an agreement with the state's attorney that plaintiff would enter a substance abuse program and avoid incarceration. After spending thirty-seven days in prison, plaintiff was released.\\nAfter being released, plaintiff sued defendant in Windsor Superior Court for attorney malpractice. Defendant moved for summary judgment arguing that he was a state employee, and, as a result, plaintiff's exclusive remedy was to sue the State of Vermont. Relying on this Court's decision in Bradshaw v. Joseph, 164 Vt. 154, 666 A.2d 1175 (1995), in which we concluded that a client could not sue a public defender, the trial court granted the motion. We review a summary judgment decision using the same standard applied by the trial court; summary judgment is appropriate only when the materials before the court clearly show that there is no genuine issue of material fact and the party is entitled to a judgment as a matter of law. Miller v. Town of West Windsor, 167 Vt. 588, 588, 704 A.2d 1170, 1171 (1997).\\nOn appeal, plaintiff argues that a private attorney, who represents indigent defendants at the state's expense pursuant to contract with the defender general, is not a state employee and is therefore amenable to civil malpractice liability. We agree.\\nThe issue in this case is one of statutory interpretation. 12 V.S.A. \\u00a7 5602 protects state employees from civil liability:\\nWhen the act or omission of an employee of the state acting within the scope of employment is believed to have caused damage to property, injury to persons, or death, the exclusive right of action shall lie against the state of Vermont; and no such action may be maintained against the employee or the estate of the employee.\\n12 V.S.A. \\u00a7 5602(a). For purpose of this section, the definition of \\\"employee\\\" contained in 3 V.S.A. \\u00a7 1101 applies. Id. \\u00a7 5602(c).\\nBoth parties agree that \\u00a7 5602(a) applies in this case. Indeed, plaintiff's injury in this case, the loss of liberty caused by incarceration, is the same as that in Bradshaw, where we held that the section applied and prevented a suit against a public defender. Therefore, the narrow question before us is whether defendant is a \\\"state employee\\\" as defined in 3 V.S.A. \\u00a7 1101.\\n3 V.S.A. \\u00a7 1101(b) defines a state employee to include \\\"any elective or appointive officer or employee within the legislative, executive or judicial branches of state government or any former such employee or officer.\\\" In construing a statute, our goal is to give effect to the intent of the Legislature. See Shea v. Metcalf, 167 Vt. 494, 498, 712 A.2d 887, 889 (1998). When the language of a statute is clear and unambiguous, we must apply the plain meaning of the language used. See id. We construe the statute \\\"according to the-ordinary meaning of the words the legislature has chosen.\\\" In re Villeneuve, 167 Vt. 450, 458, 709 A.2d 1067, 1072 (1998).\\nThe plain meaning of the statutory language supports plaintiff's position. Defendant was not an \\\"elective or appointed officer or employee within [a branch] of state government.\\\" Defendant's contract specifically made him neither an \\\"officer\\\" nor \\\"employee\\\" of state government. The common law defines an employee as follows:\\nIf under the contract the party for whom the work is being done may prescribe not only what the result shall be, but also may direct the means and methods by which the other shall do the work, the former is an employer, and the latter an employee. But if the former may specify the result only, and the latter may adopt such means and methods as he chooses to accomplish that result, then the latter is not an employee, but an independent contractor. So the master test is the right to control the work. And it is this right which properly differentiates service from independent employment. It is to be observed that actual interference with the work is unnecessary \\u2014 it is the right to interfere that determines.\\nKelley's Dependents v. Hoosac Lumber Co., 95 Vt. 50, 53, 113 A. 818, 820 (1921). Defendant's obligation was to provide representation of eligible defendants. By express provisions of the contract, the defender general had no power to control the means and methods by which such representation was provided. See also Breslauer v. Fayston School Dist., 163 Vt. 416, 424, 659 A.2d 1129, 1134 (1995) (\\\"essential element in the relationship of master and servant is the right of control\\\"). Further, although it is not necessarily determinative, we note that the contract provided that the contract defender was not an officer or employee of the state and dealt with the consequences of that determination by requiring the contract defender to have malpractice insurance in force. See Restatement (Second) of Agency \\u00a7 220(2)(i) (1958) (a factor in determining whether a master and servant relationship is created is whether the parties believe they are creating that relationship).\\nDespite the statutory language, defendant argues, and the trial court accepted, that Bradshaw controls this case and requires that we rule that defendant is a state employee. The defendant in Bradshaw was an employee of the defender general who received a salary from the state. Nevertheless, the malpractice plaintiff argued that the public defender should not be considered a state employee for purposes of \\u00a7 1101 because the defender \\\"is responsible only to his client\\\" and is not \\\"under the control of a supervising official of the state.\\\" Bradshaw, 164 Vt. at 157, 666 A.2d at 1177. We held that these considerations could not control in the face of the wording of the statute. See id. at 158, 666 A.2d at 1178. We went on to discuss the policy considerations behind the statute, concluding that immunity \\\"may actually promote a vigorous and independent defense.\\\" Id. at 157, 666 A.2d at 1178.\\nAs defendant emphasizes, we stated in Bradshaw that we looked \\\"at the origin, function and source of funding of a public defender position\\\" to hold that a public defender is a state employee. Id. at 155, 666 A.2d at 1176. Defendant argues that if we look at the origin, function and source of funding of conflict counsel, we must reach the same conclusion. We disagree.\\nIn Bradshaw, plaintiff was arguing that a lawyer who was an employee of the state for all other purposes was somehow not a state employee for purposes of 3 V.S.A. \\u00a7 1101. In this case, defendant is arguing that a lawyer who is not a state employee for any other purpose is somehow a state employee for purposes of \\u00a7 1101. Both arguments fail for the same reason. The statutory language controls and defines state employee in accord with its ordinary meaning.\\nAs did the plaintiff in Bradshaw, defendant in this case relies on a public policy argument, albeit the reverse of the Bradshaw argument. In this area of conflicting considerations, the choices are fundamentally for the Legislature. We conclude that the Legislature has spoken and has not extended immunity to defendant.\\nReversed.\"}"

vt/226764.json

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+"{\"id\": \"226764\", \"name\": \"State of Vermont v. John R. LaCourse\", \"name_abbreviation\": \"State v. LaCourse\", \"decision_date\": \"1998-05-08\", \"docket_number\": \"No. 97-108\", \"first_page\": \"162\", \"last_page\": \"166\", \"citations\": \"168 Vt. 162\", \"volume\": \"168\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T21:01:19.017122+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.\", \"parties\": \"State of Vermont v. John R. LaCourse\", \"head_matter\": \"State of Vermont v. John R. LaCourse\\n[716 A.2d 14]\\nNo. 97-108\\nPresent: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.\\nOpinion Filed May 8, 1998\\nMotion for Reargument Denied July 13,1998\\nTerry Trono, Washington County State\\u2019s Attorney, Barre, for Plaintiff-Appellee.\\nMichael Rose, St. Albans, for Defendant-Appellant.\", \"word_count\": \"1545\", \"char_count\": \"9347\", \"text\": \"Amestoy, C.J.\\nDefendant appeals his jury conviction of perjury in violation of 13 V.S.A. \\u00a7 2901. He contends that: (1) the trial court erroneously failed to submit the issue of materiality to the jury; and (2) the prosecutor improperly adduced testimony concerning defendant's pre-arrest silence. We affirm.\\nIn July 1995, defendant was arraigned on charges of reckless driving and attempting to elude the police. The trial court found probable cause based upon the affidavit of a police officer who stated that on July 9,1995, she had observed defendant driving the vehicle that was the object of a police pursuit. The officer further noted that, at the time of the pursuit, defendant was on parole for driving while intoxicated and was under a lifetime suspension from operating a motor vehicle for multiple prior convictions. Defendant testified under oath at the arraignment in support of his request for release on his own recognizance. He stated that he had last seen his truck on July 8, one day before the chase, and that he had reported the vehicle stolen on July 15.\\nDefendant was later arraigned on one count of perjury. 13 V.S.A. \\u00a7 2901. The basis of the charge was defendant's statement under oath at the arraignment, contradicted by several officers involved in the police pursuit, that he had neither seen nor driven his car since July 8. At the conclusion of the trial, the court instructed the jury in the language of the perjury statute, which applies to any person \\\"who, being lawfully required to depose the truth in a proceeding in a court of justice, commits perjury.\\\" Id. The jury returned a verdict of guilty. This appeal followed.\\nI.\\nDefendant first contends that the court erred in failing to instruct the jury on the issue of materiality. A false statement under oath generally may be punished as perjury only if it was material to an issue in the proceeding in which it was made. See State v. Rosenberg, 88 Vt. 223, 230, 92 A. 145, 148 (1914) (\\\"The rule that the matter sworn to must be material to the issue or question in controversy in order that perjury may be assigned upon it is elementary.\\\"). Historically, many courts, including our own, have considered the issue of materiality in a perjury prosecution to be a question of law for the court to decide. See, e.g., State v. Wood, 99 Vt. 490, 495, 134 A. 697, 698 (1926) (issue of whether false statement was material to proceeding \\\"was one of law for the court to decide\\\"); United States v. Gribben, 984 F.2d 47, 50 (2d Cir. 1993) (\\\"Materiality of a false statement as an element of the crime of perjury is a question of law for the district court to decide, not a question of fact for a jury.\\\"); People v. Hedgecock, 795 P.2d 1260, 1266 (Cal. 1990) (in perjury prosecutions \\\"the accused historically has not been entitled to have the jury decide the question of materiality\\\").\\nIn United States v. Gaudin, 515 U.S. 506 (1995), however, the United States Supreme Court held that, in a prosecution for making false statements in violation of 18 U.S.C. \\u00a7 1001, the defendant was constitutionally entitled to have the element of materiality determined by a jury. \\\"The constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged. The trial judge's refusal to allow the jury to pass on the 'materiality' of [defendant's] false statement infringed that right.\\\" Id. at 522-23. Gaudin confirmed a view previously adopted by a number of jurisdictions. See, e.g., United States v. Gaudin, 28 F.3d 943, 951 (9th Cir. 1994), aff'd, 515 U.S. 506 (1995); Hedgecock, 795 P.2d at 1266; see generally Annotation, Materiality of Testimony Forming Basis of Perjury Charge as Question for Court or Jury in State Trial, 37 A.L.R.4th 948 (1985) (collecting cases).\\nIn light of the high court's ruling in Gaudin, we will undoubtedly need to reconsider the traditional rule in Vermont concerning the trial court's role in passing on the issue of materiality in a prosecution for perjury. We need not directly address that issue here, however. For even assuming that the court erred in failing to submit materiality to the jury, the issue was not raised by defendant below; although Gaudin had been decided a year earlier, defendant neither objected to the court's instructions nor submitted a proposed instruction of his own. See State v. Pelican, 160 Vt. 536, 538, 632 A.2d 24, 26 (1993) (our rule and case law require an objection following instructions to preserve issue for appeal). Hence, we review defendant's claim for plain error under V.R.Cr.E 52(b), 9which provides: \\\"Flain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.\\\" As we observed in Pelican, plain error exists \\\"only in exceptional circumstances where a failure to recognize error would result in a miscarriage of justice, or where there is glaring error so grave and serious that it strikes at the very heart of the defendant's constitutional rights.\\\" Id. at 538, 632 A.2d at 26 (quoting State v. Hoadley, 147 Vt. 49, 53, 512 A.2d 879, 881 (1986)).\\nAlthough the failure to submit materiality to the jury may implicate important constitutional rights, Gaudin, 515 U.S. at 522-23, this is not a case in which the presumed error resulted in a fundamental miscarriage of justice or the denial of a fair trial. The materiality of defendant's statement was patent; indeed, materiality was uncontroverted at trial. A transcript of the arraignment hearing admitted at trial shows that defendant's statement was made in the context of the trial court's assessment of defendant's risk of nonappearance, an assessment that may include the weight of the evidence against the accused. See 13 V.S.A. \\u00a7 7554(b). Hence, defendant's denial of his participation in the charged offenses was plainly material to the proceeding in which it was made. See Rosenberg, 88 Vt. at 230, 92 A. at 148 (false statement \\\"need not be material to the main issue or question; but it is sufficient if it is material to a collateral inquiry in the course of the proceedings\\\"). The fact that defendant did not raise or contest the issue of materiality at trial speaks to the ultimate futility of the argument rather than to any deficiency on the part of trial counsel.\\nOur analysis and conclusion in this regard are entirely consistent with the United States Supreme Court's recent decision in Johnson v. United States, 520 U.S. 461, 117 S. Ct. 1544 (1997). There, as here, the defendant claimed that the trial court had erred in failing to submit the issue of materiality in a perjury prosecution to the jury, as required under Gaudin. There, as here, the defendant had failed to object at trial. Applying a plain error analysis, the high court concluded that the error was harmless in view of the fact that the issue was uncontroverted at trial, and the evidence of materiality was overwhelming. See id. at 470, 117 S. Ct. at 1550. \\\"On this record,\\\" the Court held, \\\"there is no basis for concluding that the error 'seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.'\\\" Id. (quoting United States v. Olano, 507 U.S. 725, 736 (1993)). Here, similarly, the record provides no basis for finding that the presumed error seriously undermined the \\\"fairness\\\" or \\\"integrity\\\" of the proceeding. Id. No fundamental \\\"miscarriage of justice\\\" will result from failing to note the error. Hoadley, 147 Vt. at 53, 512 A.2d at 881.\\nII.\\nDefendant additionally contends that the prosecutor improperly adduced testimony from a State's witness commenting on defendant's constitutional right to remain silent. The witness in question, an investigator in the state's attorney's office, had testified that he contacted defendant on March 21, 1996, prior to his arrest and arraignment, to talk about the police pursuit that occurred on July 9 of the prior year. The prosecutor then inquired as follows: \\\"What essentially did [defendant] say to you?\\\" The witness responded: \\\"That if those were the type of questions that I was going to ask that I should talk to his lawyer.\\\"\\nDefendant raised no objection to the question or the answer at trial. Nevertheless, he now contends that the witness's response represented an unconstitutional comment upon defendant's right to remain silent. Nothing in the record indicates that defendant was under arrest or in custody when he made his remarks to the investigator. Thus, there was no error, much less plain error, in admitting the statement. See State v. Houle, 162 Vt. 41, 44-45, 642 A.2d 1178, 1181 (1994) (defendant's statement to supervisor in noncustodial and noncoercive setting did not implicate right against self-incrimination); State v. McElreavy, 157 Vt. 18, 25, 595 A.2d 1332, 1336 (1991) (right against self-incrimination did not attach under either Vermont Constitution or United States Constitution absent custodial interrogation or police-dominated atmosphere).\\nAffirmed.\"}"

vt/2349739.json

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+"{\"id\": \"2349739\", \"name\": \"Walsh, Leonard & Jackson, v. Jason C. Pierce\", \"name_abbreviation\": \"Walsh v. Pierce\", \"decision_date\": \"1840-01\", \"docket_number\": \"\", \"first_page\": \"130\", \"last_page\": \"138\", \"citations\": \"12 Vt. 130\", \"volume\": \"12\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T19:24:48.507310+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Walsh, Leonard & Jackson, v. Jason C. Pierce.\", \"head_matter\": \"Walsh, Leonard & Jackson, v. Jason C. Pierce.\\nDepositions read in a case in the county court, without objection, cannot afterwards be objected to, even during the trial.\\nNor can depositions, which are decided by the county court to be competent evidence, notwithstanding certain specified objections, be after-wards objected to on other grounds.\\nIn such cases, after depositions have been read, they become a part of the files in the case, and if the case comes to this court, upon exeptions, the depositions come with it, and, in actions of book account, when it becomes necessary again to refer the case to an auditor, such depositions may be used as evidence before him, by either party.\\nA general agency, not of a character necessarily required to be in writing, may be proved either by the general course of dealings between the parties in regard to the subject matter, or by subsequent recognition. How far it is necessary to produce, on trial, writings conferring or limiting the authority of an agent.\\nThis was an action of book account, brought from the county court to this court, at the January term, 1839, by exceptions to the decision of the county court accepting the report of auditors and rendering a judgment thereon for the plaintiff. The judgment of the county court having been reversed by this court, the cause was again referred to audiditors, who, at the present term, report;\\u2014\\n\\u201c That the parties, having been duly notified, appeared be-' \\u201c fore them on the 23d day of December, A. D. 1839, and \\u201c having submitted their evidence and allegations, the audi- \\u201c tors find that the first bill of goods charged in the plaintiffs\\u2019 \\u201c account, under date of Aug 13, 1832, were purchased of \\u201c the plaintiffs in the - name and for the account of defend- \\u201c ant, by one Hiram Pierce, who assumed to be the agent of \\u201c the defendant, and, by order of said Hiram, the goods were \\u201c directed and forwarded to Jason C. Pierce, at Ogdens- \\u201c burgh, N. Y., where the said Hiram was in charge of a \\u201c store, doing business in the name and ostensibly for account \\u201cof the defendant; that the residue of the goods charged, \\u201c were directed and forwarded in like manner, upon written \\u201c orders of the said Hiram and other persons employed in \\u201c the store at Ogdenburgh, all in the name of the defend- \\u201c ant\\n\\u201c The auditors further find, that the-first bill of goods was \\u201c purchased, as aforesaid, by said Hiram in person, and that, \\u201c on that occasion, he exhibited to-the plaintiffs a writing \\u201c purporting to be signed by the defendant, empowering him \\u201c to purchase upon the responsibility of defendant, and \\u201c that the goods were delivered, and the defendant de- \\u201c bited therefor upon the plaintiffs\\u2019 books, upon the faith of \\u201c said Hiram\\u2019s representations and the said writing, but that \\u201c said writing was not specially addressed to the plaintiffs nor \\u201c delivered to them by said Hiram, and the same is not, and \\u201c has not been within, their control or knowledge. The said \\u2022\\u201c writing was not produced at the trial, nor was evidence re- \\u2018\\u2018 received to show its character or purport.\\n\\u201c The auditors further find, that about the 25ih March, \\u201c 1833, the plaintiff, Leonard, called upon thhe defendant at \\u201c St. Johns, for a payment upon the account, and that the \\u201c defendant then delivered him, in part payment thereof, \\u201c promissory notes to the amount of two thousand dollars, \\u201c without making any objection to the account, or raising \\u201c any question as to the fact, or nature, of his liability to pay \\u201c the same, though the payment was demanded as of his own \\u201c proper debt. 7\\n\\u201c The auditors further find, independently of the writing \\u201c shown to the plaintiffs by said Hiram, that the plaintiffs \\u201c gave credit directly to the defendant, and that he was ori- \\u201c ginally debited upon their books for all the goods charged \\u201c in their account.\\n\\u201c They also find, that in February, 1835, the plaintiffs received $1062,19, and in September, 1835, $1157,10, \\u201c and in December, 1835, $919,82, which sums were cre- \\u201c dited in the plaintiffs\\u2019 account, and were received of one \\u201c David A. Graham, who claimed to be the assignee of the \\u201c goods and credits of the store at Qgdensburgh, in behalf \\u201c of defendant, and that the account mentioned in the de- \\u201c position of Samuel M. Woodruff, herein after referred to, \\u201c was a copy of the plaintiffs\\u2019 account, and similar to the ac- \\u201c count returned by the auditors. All the facts, above stated, \\u201c were found from the testimony of the plaintiff, Leonard.\\n\\u201c The auditors further find, from the deposition of Samuel M. Woodruff, that on the 23d day of April, 1834, the \\u201csaid Woodruff, as agent of the plaintiffs, exhibited to the \\u201c defendant a statement of plaintiffs\\u2019 account, corresponding \\u201c substantially, (with the exception of a charge of cash, $60, \\u201cunder date of Jan. 19, 1836,) with the account herewith \\u201c returned, in which the defendant was debited directly to \\u201c the plaintiffs ; that the defendant admitted the account to \\u201c be just and true, and promised to pay the same in a short \\u201ctime; that the defendant then gave to Woodruff three \\u201cpromissory notes, two for $1000 each, and one for $500, \\u201c as collateral security for the payment of the account, and \\u201c to be applied, if paid, to reduce the balance thereon due. \\u201c The deposition of the said Woodruff was objected to by \\u201c the defendant, upon the ground that it was not taken to be \\u201c used before the supreme court; but,inasmuch as it was tafe- \\u201c en to be used in this cause and had been used before the \\u201c auditors appointed by the court below, the auditors over- \\u201c ruled the objection and admitted the deposition.\\n\\u201c The auditors find, upon the testimony of plaintiffs and \\u201c said Woodruff, generally, independently of the writing \\u201c shown to the plaintiffs, by said Hiram, that all the goods \\u201c charged in the account of the plaintiffs, were purchased of \\u201c them for account and by authority of the defendant and that \\u201c the defendant is primarily liable and justly chargeable \\u201c therefor.\\n\\u201c The auditors further find, that the letter hereto annexed, \\u201c marked C., was written to defendant by plaintiffs, and de- \\u00a3\\u00a3 livered to defendant by said S. M. Woodruff, and that the' \\u00a3\\u00a3 letter annexed, marked D., was written and forwarded to \\u00a3\\u00a3 the plaintiffs by the defendant, but the auditors have at- \\u00a3\\u00a3 tached no importance to either.\\n\\u00a3\\u00a3 The auditors further find, upon the deposition of John \\u00a3\\u00a3 G. Colburn, that the store at Ogdensburgh belonged to the \\u00a3\\u00a3 defendant, and that the business thereof was transacted for \\u201c account of the defendant by said Hiram Pierce, who had \\u00a3\\u00a3 the control and management thereof, as agent of the de- \\u201c fendant; that said Hiram, as such agent, had authority to \\u00a3\\u00a3 make purchases in behalf and for .account of defendant, \\u00a3\\u00a3 and bind him for the payment thereof, and that the goods \\u201c charged in plaintiffs\\u2019 account were purchased for defend- \\u201c ant by said Hiram, in the lawful exercise of such agency. \\u00a3\\u00a3 The defendant objected to the reception of said deposition, \\u00a3\\u00a3 before the reading thereof, upon the'ground that the ma- <\\u00a3 gistrate,certifying the same,was not duly authorized to take a \\u201c deposition, stating, at the same time, that he made no fur- \\u201c ther objection. The objection was overruled and the deC\\u00a3 position read. Immediately after the reading of the depo- \\u00a3\\u00a3 sition, the defendant further objected, that it had not been \\u00a3\\u00a3 duly filed, but the auditors being of opinion that the ob- \\u00a3\\u00a3 jection was out of season, overruled it.\\n\\u00a3\\u00a3 And, upon the whole matter,the.auditors find that the de- \\u00a3< fendant is chargeable with-all the merchandize debited to \\u00a3\\u00a3 to him in the account of the plaintiff, And that the mer- \\u00a3\\u00a3 chandize was sold upon a credit of six months, and they \\u00a3\\u00a3 allow all the merchandize charged, amounting, in the whole, \\u201c to $5870,65 \\u00a3\\u00a3 together with interest at the rate of seven pr.\\n\\u00a3\\u00a3 cent. pr. annum, after six months, on each \\u00a3\\u00a3 bill, up to Jan. 11, 1840. 929,54\\n\\u00a3\\u00a3 And, after deducting the credits, find due to \\u00a3\\u00a3 the plaintiffs from the defendant, the sum \\u201c of \\u2022 3661,08\\u201d\\n' (D.)\\nOgdensburgh, 24 Feb. 1834.\\nMessrs. Walsh, Leonard &/\\u25a0 Jackson\\u2022\\nGentlemen : \\u2014 Such has been the unprecented falling off business this winter, such the scarcity of money, and the inability .of those indebted, to meet their engagements, that I can suggest no way to meet the demands against the Ogdensburg hardware establishment, unless a delay and extension is granted.\\nI have been at this place a week, and have been investigating the affairs, and the result I beg leave to hand you on the opposite page. The store has done a good business, and, in any other times than the present,should meet its engagements. There is no money in the country, and I am confident that were we to attempt to raise money by forcing a sale of any part of our stock, it could not be done, in this vicinity, at any sacrifice. The banks here and in Canada, do not discount a dollar. I have instructed my brother not to contract a debt for any more goods, as the stock on hand is already as .large again as it ought to be, but to collect in his debts with all the rigor that the safety of his claims will admit of. The business in Lower Canada, for the last season, has been most disastrous, and it will be very difficult for me, at present, to spare any more funds from my business there, without jeopardizing my business there. I leave this for St. Johns to day,and should feel obliged by your writing me, in duplicate, addressed to me both at St. Johns and this place.\\nVery respectfully yours,\\nJASON C. PIERCE.\\n(C-)\\nAlbany, April 18, 1834.\\nJ. C. Pierce,\\nDear Sir ; \\u2014 Permit us to introduce to you the bearer, Samuel M. Woodruff, Esq., of the firm of Reynolds & Woodruff, counsellors, &c. &c., of this city. Any assistance you may have it in your power to render Mr. Woodruff, we shall consider a particular favor, and be happy to reciprocate.\\nWe send you, by Mr. W., a copy of a letter we addressed to you the 10th ult., to which we have received no reply. You may, if you please, communicate with him respecting the subject of it.\\nYours, &c. &c.\\nWALSH, LEONARD & JACKSON.\\nThe defendant excepted to the report and assigned following causes of exception.\\n1. Because, the auditors erred in overruling the objections to the deposition of John G. Colburn.\\n2. Because, the deposition of Samuel M. Woodruff ought not to have been received by the auditors, it not having been taken originally as evidence in this court, and it did not, necessarily, pass to the supreme court, with the exceptions, by virtue of which this case came froni the county court.\\n3. Because, the auditors erred in not requiring the production of the original, paper on which Ahe goods in the first instance were procured, or in case of its loss, secondary proof of its contents.\\n4. Because, the plaintiffs, from the facts reported, are not entitled to recover.\\nC. Adams, for defendant.\\nI. The deposition of John G. Colburn should have been rejected. In point of fact it was not filed thirty days before the session of the court in the proper office. It therefore was not legal evidence and could not be read without this objection was removed.\\nThe time at which the objection is taken is unimportant, for if at any time before a decision, it appears that the testimony is illegal, as in the case of an interested witness, it is to be laid out of the case.\\nII. The deposition of Woodruff was not properly brought before the auditors. It is certain it did not go up with the exceptions. It could not be regarded as part of the original . files and papers, which the clerk is directed to carry up from the county court. It is not to be read as evidence, merely because it may have been read before, for, if it could not be read here for the first time, it cannot be read now. The statute provides for carrying up depositions on appeal, Stat. p. 59, but makes no provision that reaches this case.\\nPlaintiffs were not entitled to recover without the production of the original paper on which the goods were obtained or proper evidence of its contents. Slate v. I)e Wolf, 8 Conn. 93.\\nThe defendant has always insisted that his undertaking was collateral to the credit of Hiram Pierce and so it would appear if the paper were produced, and if so, this action could not be maintained, but the plain tiff must resort to a special action on the case.\\nAll that has been said or written by defendant, is consistent with this view of the paper, nay it is almost conclusive of it. The goods having been furnished upon the strength of the paper, it is beyond controversy the best evidence to prove the undertaking and indeed it is difficult to see how the character, of the undertaking can be proved without it. To prove the defendant primarily liable without the paper, there should be express evidence of such primary liability, but the evidence shows nothing of the kind. It shows nothing more than a collateral liability. The defendant\\u2019s letter of February, 1834, is probably the best evidence in the case to show what his relation was, and, from that, it strongly appears that the undertaking was collateral only.\\nJ. IV. Pomeroy, for plaintiff.\\nThe first objection to the deposition of Colburn, made before the auditors, is not now insisted upon by the defendant. As to the other objection, we insist that it was made too late. The deposition having already been read, by consent, so far as the time o\\u00ed filing was concerned.\\nBut it will appear from the report, that the auditors found every necessary fact in the case independently of this deposition.\\nII. The deposition of Woodruff was proper evidence before the auditors in this case. This deposition, having been made a part of the case, in the bill of exceptions, became a part of the record, and whenever the facts, or law of the case were to be examined and decided, it must be present and have its weight as evidence.\\nThe cause is the same, in every respect, and the reasons for taking the deposition still existed. Depositions \\u201c shall be admitted to be used in evidence in the causes for which they are taken.\\u201d Stat. p. 81. \\u00a7 80.\\nDepositions taken in chancery, in England, may be used on an issue of law in that conrt in the same cause. 2 Mad. Chan. 577.\\nIII. It is a sufficient answer to the third objection that the paper alluded to, was not designed to be, and, in fact, never was in the possession or control of the plaintiff, and the claim of the plaintiffs, does not rest upon any written undertaking of the defendant but on independent facts found by the auditors.\", \"word_count\": \"3282\", \"char_count\": \"18959\", \"text\": \"The opinion of the court was delivered by\\nRedfield, J.\\n\\u2014 In regard to the deposition of Colburn, we think the objection came too late. The deposition was, indeed, objected to, (on specific grounds, not now urged,) before it was read to the auditors. That objection being overruled and the deposition read, 'a still further objection was started, but ruled to be out of time. That was most clearly the case. The fact that the deposition had been objected to for one reason, and admitted, did not authorize the party objecting, to raise further objections at a subsequent period. It was the same, as to all other objections, as if the deposition had been read without objection. In such cases, the standing rule, both of this court and the several county courts, expressly precludes alt subsequent objections. Nor does it make any difference, that the objection was started during the trial, and immediately after the reading. The rule requires the objection to be made before the reading.\\nThe objection to the disposition of Woodruff, that it was not taken to be used in this court, and although taken to be used in the cause, and used without .objection in the county court, cannot be used after the cause is removed into this court, is intimately connected with the point just now decided. Whenever a deposition is used in a cause, without objection, it becomes a part of the papers and exhibits, belonging to the cause, and the rule of court requires, that it \\\" shall be lodged with the clerk and remain in his office, subject to the inspection of both parties.\\\" Such papers, therefore, when a cause is removed from the county to the supreme court, pass up with the cause, and if the action is book account, and it becomes necessary to send it again to'an auditor, they go out with the rule or commission to the auditor, as a part of the evidence, which either party may use.\\nThe remaining objection to the report, is founded upon the auditors allowing the plaintiffs to prove the agency of Hiram Pierce, in purchasing the goods, for which they claim to recover of the defendant, without producing the writing given by defendant to said Hiram. We do not learn, very definitely, the character or object of this writing. One. thing is certain, it was never intended for the plaintiffs, and was never under their control. The agency claimed is not of a character, which might not as well be created by mere words or acts, as by writing. In such cases it is well settled that the agency may be proved by \\u2014 1st, direct evidence of agency. In this case, if the authority was in writing, it must be produced and proved. 2 Stark. Ev. (6 Ed.) 31. Johnson v. Mason, 1 Esp. C. 89. Coore v. Callaway, Ib. 115. In the present case, perhaps, if the plaintiffs had relied solely upon an authority conferred upon the agent by writing, they should either have produced the writing or accounted for its absence. But, 2, this agency may be proved by the habit and .course of dealings between the parties. And where one man suffers another to carry on business upon his credit, he is bound, I take it, to the fullest extent, by all his contracts, within the apparent scope of that business, without regard to the terms of the particular contract of agency, unless brought home to those with whom the agent has dealings, and in that case, it is for the defendant to show their limitation to be short of the apparent extent of the business. 4 Conn. R. 288. 2 Stark. Ev. 32 and notes. This rule would seem fully to embrace the present case. Mechanics' Bank v. Bank of Columbia, Wheaton, 326. 4 Pet. C. R. 666.\\nBut, thirdly, it is fully competent for the defendant to recognize the acts of a mere intruder into his business ; and if he do, he is bound to make good the undertakings of such self-constituted agent. 2. Stark. Ev. 33 and notes. So, too where one has assumed to act on the part and behalf of another, and he is informed of such assumed agency, he must express his dissent within a reasonable time, otherwise his assent will be presumed. Amory v. Hamilton, 17 Mass. R. 103, Cairres v. Bleeckers, 12 Johns. R. 300. In the present case, in repeated instances, the defendant has distinctly and unequivocally .recognized (he- agency of Hiram Pierce, and not only promised to pay the plantiffs' debt, when fully informed of all the- facts, but even executed his promissory notes for the amount claimed, which were to be holden by plaintiffs as collateral security.\\nJudgment on. report for plaintiffs.\"}"

vt/2350240.json

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+"{\"id\": \"2350240\", \"name\": \"Robert Watkinson v. The Town of Bennington\", \"name_abbreviation\": \"Watkinson v. Town of Bennington\", \"decision_date\": \"1839-02\", \"docket_number\": \"\", \"first_page\": \"404\", \"last_page\": \"407\", \"citations\": \"12 Vt. 404\", \"volume\": \"12\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T19:24:48.507310+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robert Watkinson v. The Town of Bennington.\", \"head_matter\": \"Robert Watkinson v. The Town of Bennington.\\nThe rule, that an officer becomes liable to the creditor for the whole amount of an execution which he suffers to run out in his hands, applies to those cases where he has done nothing, under the writ, that operates as an immediate and necessary benefit to'the creditor..\\nA commitment of the debtor is not rendered invalid by the officers neglect \\u25a0 to return the execution. \\u00bb\\nThis was an action on the case against the defendants, for the default of Daniel A. Rudd, their constable, in not executing and returning a writ of execution in favor of the plaintiff and against Asahel Booth, for the sum of $286,53, damages and $ 18,32, costs, issued on a judgment recovered at the December term of Bennington county court, 1837, which execution was dated December 13, 1837, and made returnable in sixty days from date.\\nThe writ of execution was delivered to the said constable, on the twenty second day of December, 1837, and was never returned to the office whence it issued.\\nUpon the trial in the county court, the defendants offered in evidence the execution, described in the declaration, and the constable\\u2019s return indorsed thereon, dated January, 27, 1838, showing that said execution had been levied on per sonal estate of the debtor, which had been sold, by the constable, according to law ; that theAunount realized from such sale was $ 134,53, and that, the balance of said execution being unpaid, the said debtor was, by virtue of said execution, committed, by said constable, to the common jail in Bennington, within the life of the execution. To the admission of this evidence the plaintiff objected, but the court overruled the objection and admitted the evidence in mitigation of damages.\\nIt further appeared that one hundred dollars of the money received for the personal property, sold upon the execution, had been paid, by said constable, to the plaintiff, and that the balance had been demanded of him, but never paid.\\nWhereupon, the plaintiff claimed a judgment for the amount of the execution, deducting the one hundred dollars which he had received. But the county court decided that the plaintiff was not entitled to recover the whole amount claimed, and rendered a judgment for the plaintiff to recover the balance of the money, in the hands of the constable, arising from the sale of the personal property.\\nThe defendants excepted to the decision of the county court.\", \"word_count\": \"1069\", \"char_count\": \"6159\", \"text\": \"After argument, the opinion- of the court was delivered by\\nRoyce, J.\\n\\u2014 A question may perhaps arise hereafter, whether the rule of damages, in cases of this description, should always be the same against the town, as against the constable. The statute has rendered the town liable to \\\"make-good\\\" to any party such damages as he may sustain from the constable's default. These expressions would seem to imply actual damages, and nothing more. It has just been decided in the county of Rutland, (Bramble v. Poultney, 11 Vt. R. 208,) that a recovery against the constable is not evidence of the liability of the town. And, as the two remedies are both direct, and independant of each other, it may well deserve consideration whether any rule of damages against the constable, which is founded rather in general policy than in strict justice to the creditor, should be applied as against the town. The present occasion does not require us to pass upon the question, since we consider, that, upon the facts dis closed in this case, the balance of the execution would not form a necessary measure of damages as against the constable.\\nThe rule, that an officer subjects himself in this form of action for the whole amount of an execution, if he suffers the same to run out in his hands, is not in strict analogy with the principles of common law. Actions of this class are supposed to be founded upon the equity of the plaintiff's case. And hence it was expressly admitted in Bonafous v. Walker, 2 T. R. 126, that whenever the form of action is case, whether for defaults on mesne or final process, the question, as to damages, is necessarily open, and the jury are at liberty to give what they shall think the justice of the case requires. But the prevailing rule must be regarded as settled, in the case of neglect to return an execution, though the common law remedy is resorted to. This rule, however, is not applicable to every case, even, of such neglect. It has its proper application to those cases where nothing has been done under the writ, which operates as an immediate and necescessary benefit to the creditor. Such were the cases of Turner v. Lowry, 2 Aik. 75, and Hall v. Brooks, 8 Vt. R. 485. The case must be the same where the whole or a part of the money has been raised, but not paid over to the creditor. But, so far as the doings of the officer, seasonably had under the writ,'have at once enured to the creditor's benefit, he must be content with that benefit, though the writ may happen not to be returned in time. Were it fully executed, there is nothing, but the statutary enactment, which would seem to render a return of the process at all necessary. Originally, final process was not ranked among returnable process, nor did it need to be returned, unless the officer was ruled or ordered to make return. But, our statute having made it returnable, the officer must be guilty of default if he fails to return it. In this case, the writ was fully executed, by raising money for part and committing the debtor for the residue. To the portion thus satisfied by commitment, the remarks just made are applicable. The commitment was legal, and operated effectually for the plaintiff's benefit, whether the execution was, or was not, afterwards, returned. The present, then, is not a case for the application of the stern rule for which the plaintiff contends. He was entitled to show any actual or probable loss, from the manner of executing the writ, or from the long neglect of the constable to return it. And it does not appear that he was deprived of any such showing; as the decision merely was, that the commitment was admissible, in evidence, in mitigation of damages.\\nJudgment of county court affirmed.\"}"

vt/2352375.json

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+"{\"id\": \"2352375\", \"name\": \"Jesse Gove v. Jonathan Dyke, Jr. et al.\", \"name_abbreviation\": \"Gove v. Dyke\", \"decision_date\": \"1842-02\", \"docket_number\": \"\", \"first_page\": \"561\", \"last_page\": \"561\", \"citations\": \"14 Vt. 561\", \"volume\": \"14\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-11T00:00:07.856652+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jesse Gove v. Jonathan Dyke, Jr. et al.\", \"head_matter\": \"Jesse Gove v. Jonathan Dyke, Jr. et al.\\nWhere a party, intending to take an appeal from a decree of the chancellor at the term when it was made, neglected to do so, and, at the next term thereafter, the chancellor allowed the appeal, it was held that the appeal was irregularly taken and it was therefore dismissed.\\nIt appeared that this case was tried before the chancellor \\u25a0at an adjourned term of his court, and a final decree passed. The orator expressed a desire to appeal the case to this court and did in fact intend to have had his appeal formally entered during the term, but the court adjourned before any such entry was made. On application to the chancellor, these' facts being made to appear, the appeal was allowed as of the previous term. The defendants now moved to dismiss the appeal.\", \"word_count\": \"181\", \"char_count\": \"1001\", \"text\": \"By the court.\\nThis appeal was irregularly taken. By the express terms of the statute, all appeals in chancery must be taken, at the term, at which the final decree is made. This appeal is dismissed.\"}"

vt/2355767.json

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+"{\"id\": \"2355767\", \"name\": \"JOHN CLARK v. OSCAR DOWNING\", \"name_abbreviation\": \"Clark v. Downing\", \"decision_date\": \"1882-10\", \"docket_number\": \"\", \"first_page\": \"259\", \"last_page\": \"262\", \"citations\": \"55 Vt. 259\", \"volume\": \"55\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:46:55.384823+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOHN CLARK v. OSCAR DOWNING.\", \"head_matter\": \"JOHN CLARK v. OSCAR DOWNING.\\nTrespass. Assault. Replication de injuria. Evidence.\\n1. Action, trespass; pleas, 1st, general issue; 2d, mi assault demesne; 3d, defence of defendant\\u2019s possession. Replication to the 2d and 3d pleas de injuria, without justification under a search warrant. Held, that the search warrant was not admissible evidence.\\n2. It may be an assault if one strike a horse attached to a wagon in which another person is sitting.\\nTrespass for assault and battery. Pleas: 1st, general issue ; 2d, son assault demesne; 3d, defence of the defendant\\u2019s possession. Trial by jury, December Term, Orange County, Powers, J., presiding. Verdict for the defendant.\\nThe third plea set forth that the plaintiff\\u2019s horse was wrongfully in and upon the defendant\\u2019s land doing damage, &c.; that the defendant requested the plaintiff to take away and remove the horse ; that the plaintiff refused so to do; that the said beating of the horse, &c., was done in defence of his said land, in order to remove said horse, doing no unnecessary damage. Replication to the second and third pleas de injuria, without justification under a search warrant.\\nOn trial the plaintiff\\u2019s evidence tended to show that five turkeys had been stolen from his barn on the night before the 23d of August, 1880 ; that the plaintiff had reason to believe and did believe that the defendant had stolen them; that he procured a search warrant in due form of law, and put it into the hands of a sheriff to serve; that the sheriff took the plaintiff and his two daughters with him to identify the property if found, and went to the defendant\\u2019s house; that the defendant upon their arrival in vited the plaintiff and his daughters into the house ; that plaintiff did not go in, but hitched his horse to the fence near the house ; that the sheriff informed the defendant what his business was, and at this he became enraged at the plaintiff, and used violent language towards him; that the sheriff, plaintiff and defendant went in company to the defendant\\u2019s barn yard, and then the defendant refused to allow the plaintiff to aid in searching his barn with the officer. Upon this the plaintiff inquired of the officer if he had not a right to be there to identify his property. The officer then told him to go back to his team. He did so; and in about thirty minutes the defendant and sheriff went down where the plaintiff was, and immediately the defendant caught hold of the plaintiff\\u2019s shoulder, twitched him around, and threw him down upon the ground. At this time the defendant\\u2019s wife came out of the house, took hold of her husband and told him not to hurt the plaintiff. Whereupon the defendant told him to leave his premises ; and the plaintiff replied that he would as soon as he could ; and he immediately started for his horse, unhitched it, and he and his daughters got into the wagon, and were going away, when the defendant caught hold of the horse, kicked it, and struck it over the back several times with a board. The defendant\\u2019s evidence tended to show that he ordered the plaintiff away from his premises before he went to the barn, and to contradict the plaintiff\\u2019s testimony.\\nThe plaintiff offered said search warrant and officer\\u2019s return; to the admission of which the defendant objected, on the ground that the plaintiff did not plead it in justification ; and the court excluded it. The plaintiff requested the court to charge the jury, that if they found that when the defendant ordered the plaintiff to leave, and he was using all reasonable diligence to leave, and had got into his wagon with his daughters, and was going away, and the defendant, while the plaintiff was in the wagon and in the act of leaving the defendant\\u2019s premises, did-strike the plaintiff\\u2019s horse, as plaintiff\\u2019s testimony tended to show, this would be an assault upon the plaintiff, for which he would be entitled to recover. The court refused so to charge; but did charge that beating the horse was an aggravation of the assault upon the plaintiff, if he was assaulted ; but as an independent act, it was not a personal assault for which alone recovery could be had ; that under the declaration recovery could be had for beating the horse only in case the jury found the plaintiff was personally assaulted.\\nA. M. Dickey and 6r. A. Dickey, for the plaintiff.\\nThe court erred in charging the jury. Striking the horse was an assault. Hilliard Torts (4th Ed.), 192. Striking one\\u2019s cane while in his hand is an assault. 3 C. & P. 373 ; 1 Dali. 123 ; 1 Hill (N. Y.), 46.\\nJR. M. Harvey and J. JR. Darling, for the defendant.\\nThe search warrant under the pleadings not admissible. 52 Yt. 645 ; 47 Yt. 717; 2 Win. Bl. 1165 ; 5 Cow. 181; 12 Mass. 505. Striking the horse not an assault. 22 Barb. 94 ; 43 Ind. 146.\\nSee Dodwell v. Burford, 1 Mod. 24; Addison Torts, s. 790, 797; and Collins v. Renison, Say. Rep. 138, stated in Gregory v. Hill, 8 Term, 299, where the overturning o\\u00ed a ladder on which the plaintiff was standing was held unjustifiable, although the ladder liad been erected by 'the plaintiff on the defendant's own land.\", \"word_count\": \"1395\", \"char_count\": \"7976\", \"text\": \"The opinion of the court was delivered by\\nRoyce, Ch. J.\\nThis was an action of trespass for an assault and battery. The first exception taken was to the ruling of the court excluding the search warrant as evidence. The plaintiff claims that under his replication of de injuria it was admissible.\\nThe replication of de injuria puts in issue all the material allegations of the plea. If the plaintiff wished to avail himself of the search-warrant as a justification, he should have alleged it in his replication, so that an issue might have been made upon that allegation. There was no error in excluding it. Chit. Pl. 564 ; George v. West, 52 Vt. 645; Braley v. Walworth and Burnham, 47 Vt. 717.\\nThe only other exception taken was to the refusal of the court to charge as requested. The evidence referred to in the exceptions, and upon which the request was predicated, and the question of what in law constitutes an assault, have to be considered in deciding whether the request should have been complied with or not. It appears that the evidence as to what transpired at the time and upon the occasion when it was claimed that the assault was committed was conflicting, and the request was based upon the supposition that the jury might find the facts as the plaintiff's evidence tended to show.\\nAdmitting that the jury might so find, did the striking of the plaintiff's horse-constitute an assault upon the plaintiff? It is not (necessary to constitute an assault that any actual violence be done to the person. If the party threatening the assault have the ability, means, and apparent intention, to~carry~~KIs threat into \\u2014 .execution, it may in law constitute an assault. The disposition, accompanied with-aryrreseut~u5ility to use violence, has been held to amount to an assault\\\" WTTere violence is used it is not indispensably necessary that it should be to the person. It was decided in Hopper v. Reeve, 7 Taunt. 698, that the upsetting of a chair or carriage in which a person was sitting was an assault; in Mortin v. Shoppe, 3 C. & P. 373, Jh\\u00e1lTl\\u00fadl\\u00f1g after a person I at a quick pace and compelling him to fun into his garden to avoid \\\\ being beaten was an assault; that the striking of the horse upon ( which the wife of the plaintiff was riding was an assault upon the / wife. 1 Stephens, N. P. 210.\\nAn assault is defined in Hays v. The People, 1 Hill, 351, to be an attempt with force or violence to do a corporal injury to another. The striking of the plaintiff's'horse in the manner that his evidence tended to show would probably result in a corporal injury to him ; hence, the request should have been complied with.\\nThe case should have been submitted to the jury for them to . find whether the striking was as the plaintiff claimed it to have been, or in the manner and for the reasons indicated in the defendant's plea.\\nJudgment reversed, and cause remanded.\"}"

vt/2359060.json

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+"{\"id\": \"2359060\", \"name\": \"Edwin R. Martin and Wife v. C. N. Harrington, Administrator, et al.\", \"name_abbreviation\": \"Martin v. Harrington\", \"decision_date\": \"1901-05-31\", \"docket_number\": \"\", \"first_page\": \"193\", \"last_page\": \"201\", \"citations\": \"73 Vt. 193\", \"volume\": \"73\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:18:26.458708+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Taft, O. J., Rowell, Tyler, Munson, Start, Watson and Stafford, JJ.\", \"parties\": \"Edwin R. Martin and Wife v. C. N. Harrington, Administrator, et al.\", \"head_matter\": \"Edwin R. Martin and Wife v. C. N. Harrington, Administrator, et al.\\nMay Term, 1901.\\nPresent: Taft, O. J., Rowell, Tyler, Munson, Start, Watson and Stafford, JJ.\\nOpinion filed May 31, 1901.\\nHomestead Act V. 8. 2189 \\u2014 Husband\\u2019s sole deed of homestead is void\\u2014 The homestead act protects the husband as well as the wife and children; and the husband\\u2019s sole deed of the homestead is void and is in no way rendered effective by the subsequent death of the wife leaving him without children.\\nThe dictum, in Whiteman v. Wield, 58 Yt. 554, is not law \\u2014 What is said in Whiteman v. Wield, 53 Yt. 554, to the effect that the husband\\u2019s sole deed of the homestead becomes operative upon the death of the wife leaving him without minor children, is obiter dictum and is not law.\\nChancery. Bennington County. Petition for the appointment of commissioners to set out a homestead. In vacation following the June Term, 1900, the cause came on for hearing on the bill and a demurrer thereto before Watson, Chancellor. It was adjudged and declared^rojcrwaand without hearing that the demurrer be sustained and the bill dismissed. The orators appealed.\\nThe petition set out that the defendants, herein, had obtained a decree of foreclosure of the mortgage executed by the petitioner, Edwin R. Martin, a married man, without the joinder of his wife, and covering their homestead. The petition, further, set out the reasons why a homestead right was not asserted in the foreclosure proceedings.\\nBatchelder & Bates for the petitioner.\\nBarber & Darling for the petitionee, E. N. Harrington, administrator.\", \"word_count\": \"2706\", \"char_count\": \"14887\", \"text\": \"Taft, C. J.\\nWhen the mortgage in question was executed the mortgagor, a married man, was occupying the premises as a homestead. The wife did not join in the mortgage. Subsequently, having no children, the wife died, leaving the husband without family; the husband continued in the occupation of the premises as a housekeeper, with neither wife nor children, and subsequently married the petitioner, Avis A.\\nThe only question made in this case relates to the validity of the mortgage deed upon the death of the wife. Was the deed upon the happening of that event null, or did it become of force so as to cover the homestead? This question has never been before our courts.\\nWhen the homestead act was first passed, s. 5, No. 20, Acts 1849, provided that the homestead should not be alienated nor mortgaged by the owner thereof, if a married man, except by the joint deed of husband and wife, executed and acknowl edged in the manner provided for the conveyance of the lands of married women. Under this statute it was held that the owner of a homestead, having a wife, might convey it by his own deed and pass the title thereto during his lifetime, and that the wife could not assert her rights unless .she survived him. Howe v. Adams, 28 Vt. 541; Jewett v. Brock, 32 Vt. 65. In Davis v. Andrews, 30 Vt. 678, the same rule is stated although the question did not arise as the court held upon the facts that neither of the plaintiffs had any right of homestead in the premises.\\nAfter these cases were decided the legislature altered the statute by No. 36, Acts i860, providing that if the wife did not join in the execution of the conveyance it should \\\"be wholly inoperative to convey any right, title or interest in such homestead, and the rights of the parties, and of all persons claiming under them or either of them, shall be and remain the same as if no such deed had been executed.\\\" This section, in substance, has remained in our statutes until the present time without change, except that in the Revised Laws of 1880 the word \\\"wholly\\\" was omitted.\\nSome years after the passage of this act in the case of Day v. Adams, 42 Vt. 510, the claim was made with reference to the homestead in controversy in that suit, that the wife could not assert her right until the death of her husband, but the court held that that question was not material as the widow and children took an absolute title at the death of the husband and had not waived them homestead right, but Peck, J. referring to the claim said: \\\"We are by no means prepared to assent to the proposition that the sole deed of the husband in such case would be effectual to disturb the occupancy of the husband and his family while they continued to occupy the premises as a homestead.\\\" The same question arose in the case of Abell v. Lothrop, 47 Vt. 375. The husband, mortgagor, was living and it was claimed that he was estopped by his deed from denying the title of the defendant under the mortgage and that his deed had the effect to pass the title to the homestead during his lifetime, and that the rights of the wife and minor children to the homestead could only attach at his decease. The mortgage in that case had been foreclosed, the decree had expired without redemption and a bill was brought in the name of the mortgagor, his wife, and children, setting up a homestead claim in the premises and asking that the homestead might be set out. The judge who wrote the opinion refers to the cases heretofore cited decided under the first homestead act and then says: \\\"Whatever may be said of these cases decided under the statutes then in force, we are all agreed that the statutes now in force relating to the homestead are sufficient authority for sustaining the bill in this case\\\" and granted the relief sought. And referring to the language of the present statute the court further said: \\\"Surely no more explicit language could be used to negative the right of the husband to convey either his own or his family's interest in the homestead. His deed is absolutely void; he has no capacity to deed and the title to the estate remains as if no. deed was executed.\\\" This is the only case that has been called to our attention in which this question was involved.\\nThe case of Abell v. Lothrop follows the words of the statute and holds that the sole deed of the homesteader shall be inoperative so far as the homestead is concerned. It decides that the husband homesteader, and his wife and children cannot be disturbed in their occupation of the homestead during the life of the husband and father by one claiming under the sole deed of the husband and father. But that is not the question before us, and the cases cited and some noted hereafter are referred to by way of argument and on account of the claim made that they sustain the doctrine urged by the defendants in support of their contention, for if the husband cannot successfully defend against the mortgagee when his wife and children are living \\u2014 how can he, when they are all dead and he is the survivor?\\nThe validity of the sole deed of a husband is referred to in Whiteman v. Field, 53 Vt. 554, in which the question is discussed and a conclusion arrived at, that a deed executed when the wife was living would be operative to convey the estate and that it would become operative when the encumbrance had been removed. In the opinion it is said: \\\"The homestead right of the wife and minor children is inchoate, subject to be defeated by the abandonment of the same by'the head of the family or the acquisition of another homestead by him . And in case of the death of the wife and minor children, during the lifetime of the husband and father, the estate is relieved from any homestead interest in the same\\\" \\u2014 This in effect is saying that in that event the sole deed of the husband and father would become operative and the homestead pass under it. The defendants herein claim that the case of Whiteman v. Field overrules that of Abell v. Lothrop and that the latter case has never been cited by the court since the case of Whiteman v. Field was decided, while the latter has been cited with approval four times.\\nIn regard to the Whiteman case it is enough to say that the question discussed and which the court assumed to decide was not before the court. The case was in equity under the early practice and the court found upon the proofs that the defendant who claimed the homestead \\\"never acquired any such (homestead) right in any portion of the mortgaged premises.\\\"\\nThe court further say: \\\"This finding is conclusive against the right of C. C. Field to homestead in the premises described in the mortgage sought to be foreclosed; but the question of the legal effect of the mortgage deed executed by C. C. Field upon the assumption that he then had the homestead in the premises described in it has been ably discussed by counsel and we have thought proper to consider it.\\\" Then follows a long discussion with the conclusion above stated.\\nIt is thus seen that the Whiteman case involved no legal question whatever, it turned upon a question of fact, and the case should never have been reported as it involved no question of law.\\nThe cases in which Whiteman v. Field, has been cited are:\\na. Heaton v. Sawyer, 60 Vt. 495, in which it is said that the Whiteman case decides that a \\\"conveyance by the husband is only operative against the rights of the wife and minor children.\\\" This we have seen the Whiteman case did not decide and in the Heaton case no question was made between the mortgagor and the mortgagee as to the validity of the mortgage but the question litigated was whether a divorced wife was entitled to a homestead in the lands of her deceased husband.\\nb. In Re Hatch's Est. 62 Vt. 300, in which it is cited to show that the wife and children after the death of the homesteader can hold the homestead against the sole deed of the husband and father, a question upon which it was hardly necessary to cite authority as the statute vested the title in them.\\nc. In Thorp v. Thorp, 70 Vt. 46, and Thorp v. Wilbur, 71 Vt. 266, it is cited upon a question foreign to the question before us, viz: that \\\"Whether premises are so used or kept as to constitute a homestead is largely determined by the intention of the homesteader.\\nd. Whiteman v. Field is also cited in Russ v. Henry, 58 Vt. 388, that under a former statute, premises in order to constitute a homestead must be used or kept as a homestead.\\ne. In 15 Am. and Eng. Enc. of Law (2nd ed.) 683 n. 2, it is cited as disapproving Abell v. Lothrop.\\nThe impropriety of discussing questions obiter is seen when we find that Whiteman v. Field which did not settle a single legal question is constantly cited in support of questions, not involved in that case, and as disapproving a case which is undoubted law.\\nThe words of the homestead statute in effect are: \\\"That the deed shall be inoperative so far as relates to the homestead.\\\" It is equivalent to saying that the deed is null and void and has no force ,\\u2022 it is conceded that it has not during the life of the wife, and we see- no reason why it should change upon the death of the wife and then become operative. It is not claimed by the defendant that it becomes operative under the familiar rule, that when one conveys land with covenants of warranty of title, the title subsequently acquired by the grantor will enure to the benefit of the grantee in discharge of the grantor's covenants.\\nIt is not claimed that this rule applies, and it cannot well apply, except to a case when it appears by the covenants contained in the conveyance itself \\\"That the parties intend to convey and receive reciprocally a certain estate.\\\" Carbee v. Hopkins, 41 Vt. 249. For in this case there was no intent on the part of the mortgagor to convey, and none on the part of the mortgagee to receive any estate or interest in the homestead.\\nThe effect of enforcing the defendants' claim in this case is to give the mortgagee the benefit of a security which he did not intend to get, and which he knew he did not receive, and which the mortgagor had no intent to part with and which under the statute he could not part with at the time. We hold that the deed, so far' as this homestead was concerned, was inoperative to convey any interest therein. >\\nThe statute protects the homestead against any attachment by a creditor, although he has no wife nor children. Pierce v. Kusic, 56 Vt. 418. Considering the object of the statute that it is to preserve a home for the family it is not unreasonable to hold that it is as much for the benefit of an aged housekeeper, a demented octogenarian, with no means of support, as it is for the benefit of a young widow, just out of her teens, who may have a competence in her own right.\\nThe homestead act was to protect the husband as well as the wife and this construction is not a strained one for we can have in mind that \\\"Courts often do accommodate the provisions of a statute to cases which they were obviously intended to cover although not well suited to accomplish.\\\"\\nThe adjudications of our sister States are generally in accord with our holding as may be seen by consulting 15 Am. and Eng. Enc. of Law, 682 et seq. One main reason urged in support of the claim that the conveyance of the homestead by the sole deed of the husband becomes valid upon the death of the wife and children is the mistaken notion that the family thereby ceases to exist. The husband is a part of the family indeed he is generally styled the head of the family and is entitled to as much protection as the wife and oftentimes needs it more; so far as a widower is concerned the effect of so holding may result, in the language of Cockrill, C., J\\u00cd., dissenting, in an Arkansas case, in \\\"a solace in his loneliness for their loss.\\\"\\nIn case there are no children and the wife is in an asylum hopelessly insane, or in prison under a life sentence the reason for retaining the homestead has ceased as effectually as if the wife was dead. In such contingencies does the sole deed of the husband become operative? There is as much reason it should in one case as the other, still we doubt if the claim would be made in case of such insanity or imprisonment.\\nWaples, a late writer on the subject of homestead and exemption says that: \\\"Under the general rule that the husband alone cannot sell nor encumber his dedicated homestead, all alienation of it in any. form by his act, when the property itself is not liable in rem, is absolutely void, not only as to the rights of his wife, who does not join him in the deed, and as to the children to whom the law gives the protection of shelter and the comforts of a habitation, but also as to himself. His act is a nullity, and he escapes the consequences which would follow it so far as his own right and title is concerned, but for the equitable rights and interests of his family. His deed or contract is as though it was never written or designed.\\\"\\nOur holding is this, and it is the only question in the case, that the sole deed of the petitioner Edwin R. was void so far as the homestead was concerned and was not rendered in any way effective by the subsequent death of the wife.\\nThe petitioners were entitled to a decree in accordance with the prayer of the bill.\\nDecree reversed and cause remanded.\"}"

vt/2359104.json

@@ -0,0 +1 @@
+"{\"id\": \"2359104\", \"name\": \"T. J. Deavitt, Assignee, v. B. W. Hooker and L. A. Kent\", \"name_abbreviation\": \"Deavitt v. Hooker\", \"decision_date\": \"1901-04-05\", \"docket_number\": \"\", \"first_page\": \"143\", \"last_page\": \"146\", \"citations\": \"73 Vt. 143\", \"volume\": \"73\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:18:26.458708+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Tyler, Munson, Start, Watson and Stafford, JJ.\", \"parties\": \"T. J. Deavitt, Assignee, v. B. W. Hooker and L. A. Kent.\", \"head_matter\": \"T. J. Deavitt, Assignee, v. B. W. Hooker and L. A. Kent.\\nJanuary Term, 1901.\\nPresent: Tyler, Munson, Start, Watson and Stafford, JJ.\\nOpinion filed April 5, 1901.\\nSales \\u2014 Passing of title when a cash payment is contemplated \\u2014 An agreement of sale, without payment or delivery, does not pass title when a cash payment upon delivery is contemplated.\\nSales \\u2014 Purchase for an undisclosed principal vests title in the principal \\u2014 If one, who as purchaser in his own behalf has entered into an executory agreement of sale, acts as the undisclosed agent of another in the consummation of the trade, title passes directly from the vendor to the undisclosed principal.\\nPartnership \\u2014 Facts not establishing a partnership as matter of law\\u2014 Under an arrangement, not tainted with fraud, one of two partners was, with the consent of the other, represented by an agent who gave his time to the partnership business, acted as ostensible partner and received for his services his principal\\u2019s share of the profits less interest on the investment of his principal. These facts did not as 'matter of law constitute such agent a partner.\\nPartnership \\u2014 Estoppel in pais \\u2014 When the principle does not apply \\u2014 An ostensible partner is not estopped from denying the partnership relation when no question of credit given in reliance upon the ostensible partnership is involved. There is then nothing to feed the estoppel.\\nDuty of special master \\u2014 He determines questions of fact only \\u2014 It is no part of a master\\u2019s duty to report his opinion as to the law applicacable to the facts found, and if he does so, his opinion will not have the force of a finding of fact.\\nChancery. The orator as assignee in insolvency of B. P. White alleged a partnership between said White and the defendant Hooker, conducted under the name of B. W. Hooker & Co., and sought to have the alleged partnership wound up and an accounting had. The cause was heard on bill, answer, master\\u2019s report and exceptions thereto, Washington County, March Term, 1900, Tyler, Chancellor. A decree was rendered dismissing the bill. The orator appealed.\\nT. J. and B. H. Deavitt for the orator.\\n7. W. Gordon, S. H. Jackson and George W. Wing for the defendants.\", \"word_count\": \"1375\", \"char_count\": \"7673\", \"text\": \"Watson, J.\\nThe material facts reported are that Hooker and one Wheeler were equal partners engaged in business under the firm name of B. W. Hooker & Company; that Wheeler and White, the insolvent debtor, executed their written contract dated October n, 1895, whereby Wheeler bargained, sold, and conveyed his entire interest in and to the partnership and partnership property, to White, in consideration whereof White agreed to assume the payment of certain promissory notes at the National Bank of Barre, amounting to $2,500, executed by Wheeler and others, and to cause the same to be taken up and delivered to Wheeler immediately; that White also agreed to assume and pay certain other notes and debts therein named as outstanding against Wheeler or the firm, and to pay Wheeler the sum of $500 on the 14th day of October, 1895, and the further sum of $400 in installments thereafter; that both parties regarded the trade completed, \\\"except payment and surrender of possession of the property;\\\" that White, by reason of some talk with the officials, had hopes of paying the notes at the bank with his own note secured by western mortgages, but his credit had suffered by heavy losses, and the bank concluded not to accept his note; that thereupon, on October 14, 1895, White requested Kent, \\u2014 who had before signed notes with him, \\u2014 to sign a note as surety for $2,500, with which to take up these notes, but Kent objected to signing any more notes unless he could be secured; that White informed him of the trade with Wheeler, and it was then agreed that Kent should be the owner of the property purchased, and White was then and there made Kent's agent to complete the trade; and it was also agreed between them that White should work in the store with Hooker, \\u2014 who was his son-in-law, \\u2014 and should receive for his services all of Kent's half of the profits, in excess of six per cent, interest on his money invested, to which arrangement Hooker consented; that the trade with Wheeler was thereupon consummated by White as Kent's agent, but in so doing he did not disclose his agency; that White has acted as such agent ever since; that just before October u, White borrowed of one Bliss $1,000 upon his note signed by Kent as surety, which money White intended to use in paying for the property in case he should trade with Wheeler; that in the agreement with Kent, White was to use this money in the same way and Kent assumed the Bliss note, which he afterwards paid; that a note for $2,500 signed by Kent and White was exchanged at the bank for the notes against Wheeler which were delivered to him, and this new note Kent afterwards paid; that White paid the balance on the contract in a manner satisfactory to Wheeler, and that there was no fraud in fact in the transaction.\\nIn view of the finding that ever since the agreement with Kent, White has acted as his agent, we construe the report as meaning that' all payments made by White were made as such agent. The title to the property had not passed to White at the time of his arrangement with Kent. It was not necessary for White to disclose his agency when completing the trade, and his failure so to do did not prevent the title passing directly to his principal: Hall v. Williams, 27 Vt. 405; Ridout v. Burton, id. 386.\\nUpon the consummation of this contract, Hooker and Kent became equal partners, and White was in the employ of Kent in carrying on the business. The fact that as between Kent and White, the latter was to receive for his services all of Kent's half of the profits in excess of six per cent, interest on the money invested, did not make White a partner. To be a partner he must not only share in the profits, but he must share in them as a principal, which he did not do: Fish v. Thompson, 68 Vt. 273; Loomis v. Marshall, 12 Conn. 69, 30 Am.Dec. 596; Clark v. Smith, 52 Vt. 529.\\nWhile it is true that by White's agreement, his compensation for services depended upon the profits of the business of the firm, he had no specific lien on the profits to the exclusion of other creditors, and he was not liable for the debts of the firm: Fitch v. Harrington, 13 Gray, 468, 74 Am. Dec. 641; Macy v. Combs, 15 Ind. 469, 77 Am. Dec. 103. Nor was the property of the firm subj ect to execution for his individual debts: Bartlett v. Jones, 2 Strob. 471, 49 Am. Dec. 606.\\nThe master finds that White acted ostensibly as a partner. Were there unpaid debts contracted in the belief that he was in fact such partner and on the credit of it, he might be liable therefor upon the principle of estoppel in pais; but when, as in this case, it is not claimed that any such debts exist, there is nothing to feed the estoppel, and the principle does not apply: Hicks v. Cram, 17 Vt. 449; Thompson v. First National Bank of Toledo, in U. S. 529. The giving of a note by White to renew some of his old debts contracted before he thus acted as such partner, was not the contracting of a debt on the faith of it.\\nThe master expresses his opinion upon the law that when the contract between Wheeler and White was signed, the title to the property vested in White, and that Wheeler had only a lien as security for payment; and the orator's counsel relies thereon, to some extent, in support of his contention.\\nIt is no part of a master's duty to report his opinion as to the law governing a case on the facts found, and if he so does, it will not have the force of a finding of fact.\\nDecree affirmed and cause remanded.\"}"

vt/2361550.json

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+"{\"id\": \"2361550\", \"name\": \"State v. Edward Muzzy\", \"name_abbreviation\": \"State v. Muzzy\", \"decision_date\": \"1913-11-21\", \"docket_number\": \"\", \"first_page\": \"267\", \"last_page\": \"271\", \"citations\": \"87 Vt. 267\", \"volume\": \"87\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T21:07:45.635653+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Powers, C. J., Munson, Watson, Haselton, and Taylor, JJ.\", \"parties\": \"State v. Edward Muzzy.\", \"head_matter\": \"State v. Edward Muzzy.\\nOctober Term, 1913.\\nPresent: Powers, C. J., Munson, Watson, Haselton, and Taylor, JJ.\\nOpinion filed November 21, 1913.\\nAoiimals \\u2014\\u25a0 Malicious Killing \\u2014 Statutes \\u2014Construction\\u2014' \\u2018 Wilfully\\u201d- \\u2014 -\\u201cMaliciously\\u201d\\u2014Evidence\\u2014Admission -\\u2014 Witnesses \\u2014\\u25a0 Husband and Wife \\u2014 Competency \\u2014 Revieiv \\u2014 Presumptions.\\nIn a prosecution for maliciously killing another\\u2019s heifer that had strayed into respondent\\u2019s premises, evidence that respondent, knowing who owned the heifer, went out at night with his nephew and killed it, buried the hide, and returned about midnight with some of the meat was sufficient to carry the case to the jury.\\nUnder P. S. 5815, providing that \\u201ca person who wilfully and maliciously kills, wounds, maims, or disfigures\\u201d cattle shall he imprisoned, \\u201cwilfully\\u201d means intentionally, and \\u201cmaliciously\\u201d means a deliberate and evil intention to injure the owner by the destruction of his property in malevolent defiance of the right of ownership.\\nP. S. 1592 makes spouses exactly as competent witnesses for or against each other as are other witnesses, except as to communications with each other, or where, in the opinion of the court, their testimony would be a violation of marital confidence.\\nWhere the record shows nothing on the subject it will be presumed on review that the trial court, in allowing respondent\\u2019s wife to testify to his tacit admissions, was of the opinion that to receive the testimony was not to permit a violation of marital confidence.\\nThe question of whether the reception of testimony of one spouse against the other is in violation of marital confidence is for the determination of the trial court, and is not ordinarily reviewable.\\nInformation for maliciously killing another\\u2019s heifer. Plea, not guilty. Trial by jury at the June Term, 1913, Lamoille County, Fish, J., presiding. Verdict, guilty; and judgment and sentence thereon. The respondent excepted. At the close of all the evidence the court denied respondent\\u2019s motion for a directed verdict, to which, he excepted. The opinion states the case.\\nFrederick G. Fleetivood for the respondent. \\u25a0\\ni\\u00a5. P. Maurice, State\\u2019s Attorney, for the State.\", \"word_count\": \"1572\", \"char_count\": \"9171\", \"text\": \"Haselton, J.\\nThis was an information charging the respondent with feloniously, wilfully and maliciously hilling a heifer, the property of one Dewey. The information was brought under P. S. 5815. On trial by a jury a verdict of guilty was returned, judgment was rendered and sentence was imposed.\\nAt the close of the evidence the respondent ashed the court to direct a verdict of acquittal on the ground that in order to make out the crime charged in the information evidence of malice towards the owner of the animal killed must be shown and that there was no such evidence in the case; and upon the ground that the entire evidence did not show a felonious, wilful and malicious billing of the heifer. The motion was overruled and the defendant excepted.\\nThere was evidence tending to show that a heifer belonging to Dewey strayed onto the premises of the respondent, that the respondent had reason to know that the heifer was not his but Dewey's, and that nevertheless the respondent and his nephew Leon Muzzy went out in the night time and killed the heifer, returning with some of the meat at about midnight or a little after, that they buried the hide.\\nThe evidence was sufficient to be submitted to the jury on the question of whether the respondent was guilty of billing the heifer wilfully and with malice towards the owner of the animal. The case was submitted under instructions to which no exception was taken in that regard or in any other. There was no error in overruling the respondent's motion for a directed verdict of acquittal.\\nIn so ruling we hold that the word \\\"wilfully\\\" as here used means intentionally and by design. State v. Burlington Drug Co., 84 Vt. 243, 252, 78 Atl. 882; Town of Fletcher v. Kezer, 73 Vt. 70, 50 Atl. 558; Buchanan v. Cook, 70 Vt. 168, 40 Atl. 102; Newell v. Whiiingham, 58 Vt. 341, 2 Atl. 172.\\nAnd we hold that the word \\\"maliciously\\\" as here used has a darker meaning and requires that, to the establishment of the crime, there should be found in addition a deliberate and evil intention on the part of the respondent to wrong and injure the owner of the heifer by the destruction of his property in wanton and malevolent defiance of the rights of individual ownership. Town of Fletcher v. Kezer, 73 Vt. 70, 50 Atl. 558.\\nIn State v. Wheeler, 3 Vt. 344, 23 Am. Dec. 212, heard in 1830, the respondent, Wheeler, was charged with feloniously, wilfully and maliciously killing a steer the property of one Davis. The Court held that no crime was charged but a trespass only, and suggested that if such an act ought to be proceeded against criminally the legislature should make the necessary provision. Accordingly, in 1833, by No. 10, of the Public Acts of that year, such an act as was there charged, and as is here charged, was made a crime. The statute of that year has with some changes since remained the law, and so far as it goes it follows a provision in the Statute of 9 Geo. I, Chap. 22; and except that the offence may be committed by daj as well as by night it is similar to a provision of 22 and 23 Charles II, Chap. 7, entitled \\\"an act to prevent the malicious burning of houses, stacks of corn and hay, and killing or maiming of cattle. \\\"\\nIn construing our statute we have been aided by a consideration of the construction put upon the English statutes referred to.\\nThe statute does not use the word \\\"feloniously,\\\" but the offence defined may be punished by imprisonment in the State's prison, and therefore is a felony under our statute. P. S. 5983. So the information uses the word \\\"feloniously,\\\" but its use requires no proof distinct from that of wilfulness and malice.\\nThe respondent's wife was a witness against her husband and, among other things, testified that, on the night to which the killing of the heifer was referred, Leon Muzzy said to her, in the presence of her husband, \\\"we are going out skunk hunting tonight\\\"; and that after the killing Leon told her, in the presence of her husband, what had been done with the hide.\\nP. S. 1592, provides as follows: \\\"Husband and wife shall be competent witnesses for or against each other in all causes, civil or .criminal, except that neither shall be allowed to testify against the other as to a statement, conversation, letter or other communication made to the other or to another person; nor shall either be allowed in any case to testify as to a matter which, in the opinion of the court, would lead to a violation of marital confidence.\\\"\\nThe wife's evidence referred to was received under objection and exception grounded on this statute. But under this statute admissibility of the testimony of husband and wife for or against each other is the rule and inadmissibility is the exception. Such admissions as may be inferred from silently standing by while an accomplice unfolds the plan of a crime or narrates the details of it stand under'this statute like conduct tending to show guilt.\\nPrior to the enactment of the statute in question we had in force a statute which permitted a married woman to testify in certain cases in which her husband was a party. But it was provided tersely that nothing in the provision should authorize or permit a married woman to testify \\\"to admissions or conversations of her husband.\\\" V. S. 1241. We also had a provision that where husband and wife were properly joined in an action or where either had acted as the agent of the other in business transactions they should both be competent witnesses except that neither should be permitted to testify \\\"as to conversations or admissions of the other.\\\"\\nThe statute which we are construing constituted a new departure in the law of evidence by making husband and wife competent, as a rule, to testify for or against each other in all eases whatsoever, and in making this departure it did not meet the purpose of the legislature to make the exception cover all admissions, but at the cost of some circumlocution the language of previous statutes was departed from and tacit admissions when relevant were, together with evidence of relevant conduct, left to be governed by the general rule established by the statute unless, in the opinion of the court, a violation of marital confidence would be involved.\\nIt does not appear that there was an express ruling that the evidence received would violate no marital confidence, but the contrary does not appear, and so the presumption is that in admitting the evidence the court was of opinion that to receive it was not to permit a violation of marital confidence. Severance v. Usher, 86 Vt. 523, 86 Atl. 741; Prior v. Wilbur, 63 Vt. 407, 22 Atl. 74.\\nAs has been decided, State v. Neiburg, 86 Vt. 394, 85 Atl. 769, and as the respondent's counsel concedes, the question of whether the evidence was in violation of marital confidence was for the determination of the trial court and is not ordinarily reviewable. It is not reviewable here.\\nJtidgment that there is no error in the proceedings and that the respondent takes nothing by his exceptions. Let execution be done.\"}"

vt/2390256.json

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+"{\"id\": \"2390256\", \"name\": \"Vivian Beyel v. Charles Degan\", \"name_abbreviation\": \"Beyel v. Degan\", \"decision_date\": \"1983-04-05\", \"docket_number\": \"No. 401-81\", \"first_page\": \"617\", \"last_page\": \"620\", \"citations\": \"142 Vt. 617\", \"volume\": \"142\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"Present: Billings, C.J., Hill, Underwood, Peck and Gibson, JJ.\", \"parties\": \"Vivian Beyel v. Charles Degan\", \"head_matter\": \"Vivian Beyel v. Charles Degan\\n[458 A.2d 1137]\\nNo. 401-81\\nPresent: Billings, C.J., Hill, Underwood, Peck and Gibson, JJ.\\nOpinion Filed April 5, 1983\\nAdams, Darby & Laundon, Waterbury, for Plaintiff-Appellee.\\nCharles Degan, pro se, Moretown, Defendant-Appellant.\", \"word_count\": \"587\", \"char_count\": \"3472\", \"text\": \"Billings, C.J.\\nDefendant appeals from a judgment rendered against him after a trial by court. Although he appears pro se on appeal, he was represented by counsel at trial.\\nWe note at the outset that defendant has failed to comply with the rules of this Court regarding the requisites of adequate briefing: he fails to state the case concisely, V.R.A.P. 28(a) (2); he does not clearly delineate the issues presented for our determination, V.R.A.P. 28(a)(3); nor does he refer to any statutory or case law in support of his arguments. V.R.A.P. 28 (a) (4). We have in the past refused to review claims of error inadequately briefed. State v. Settle, 141 Vt. 58, 61, 442 A.2d 1314, 1315 (1982) (citing Quazzo v. Quazzo, 136 Vt. 107, 111, 386 A.2d 638, 641 (1978)). Nevertheless, bearing in mind defendant's pro se status on appeal, we reluctantly consider those issues which defendant appears to have raised: first, that he was denied his right to trial by jury, and second, that the court's findings are unsupported by the evidence.\\nV.R.C.P. 38(b) provides that a party may demand a jury trial by serving on the other parties a demand in writing at any time after the commencement of the action, but no later than ten days after service of the last pleading. V.R.C.P. 38(d) states that failure to serve such demand constitutes a waiver of the right to jury trial. See Hale v. Melendy, 139 Vt. 28, 30-31, 421 A.2d 1296,1297 (1980). Although the attorneys for the parties below orally discussed the possibility of jury trial, defendant failed to serve a timely demand as required by the rules. Although defendant later filed a motion to amend his answer to include a request for jury trial, his attorney never complied with the trial court's request that he draft a proposed order to that effect. Upon such failure, the trial court determined that defendant had waived his right to a jury trial. Defendant made no objection to this ruling, proceeded to try the case to the court, and cannot now claim that it was error to fail to allow him a jury trial.\\nDefendant claims further error in that the findings were \\\"one-sided\\\" and based \\\"almost exclusively on the testimony of the plaintiff and ignored defendant's testimony.\\\" Findings of fact challenged on appeal are not to be set aside unless, taking the evidence in the light most favorable to the prevailing party and excluding the effects of modifying evidence, they are clearly erroneous. V.R.C.P. 52; Dean v. Arena, 141 Vt. 647, 648, 450 A.2d 1148, 1145 (1982) ; Cliche v. Cliche, 140 Vt. 540, 541, 442 A.2d 60, 61 (1982). When the evidence is conflicting, the credibility of the witnesses, the weight of the evidence and its persuasive effect are matters for the exclusive determination of the trier of fact, Griffith v. Nielsen, 141 Vt. 423, 429, 449 A.2d 965, 968 (1982), and although there may be inconsistencies or substantial evidence to the contrary, its determination must stand if supported by credible evidence. Id. (citing Stamato v. Quazzo, 139 Vt. 155, 158, 423 A.2d 1201, 1203 (1980)). On this record there was ample evidence to support the trial court's findings, conclusions of law and judgment, and as such they will not be disturbed.\\nAffirmed.\"}"

vt/240882.json

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+"{\"id\": \"240882\", \"name\": \"In re CENTRAL VERMONT MEDICAL CENTER\", \"name_abbreviation\": \"In re Central Vermont Medical Center\", \"decision_date\": \"2002-12-16\", \"docket_number\": \"No. 01-461\", \"first_page\": \"607\", \"last_page\": \"619\", \"citations\": \"174 Vt. 607\", \"volume\": \"174\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T17:01:44.793220+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In re CENTRAL VERMONT MEDICAL CENTER\", \"head_matter\": \"In re CENTRAL VERMONT MEDICAL CENTER\\n[816 A.2d 531]\\nNo. 01-461\\nDecember 16, 2002.\", \"word_count\": \"6903\", \"char_count\": \"43968\", \"text\": \"\\u00b6 1. Central Vermont Medical Center (CVMC) appeals the denial of its application for a Certificate of Need (CON) by the Commissioner of the Department of Banking, Insurance, Securities, and Health Care Administration (BISHCA). CVMC applied for a CON in order to proceed with a renovation and expansion project for the Central Vermont Hospital (\\\"the Hospital\\\"). CVMC argues that the Commissioner erred (1) by not providing the required explanation for her decision; (2) by implementing a new standard without notice as required by Vermont law; (3) by violating CVMC's due process rights in not providing CVMC an opportunity to present information necessary to receive CON approval; and (4) by incorrectly concluding that a CON was not warranted given evidence to the contrary. We affirm.\\n\\u00b6 2. In December 2000, CVMC filed a CON application related to its proposed project with BISHCA's Division of Health Care Administration (\\\"the Division\\\"). See 18 V.S.A \\u00a7 9434(a) (\\\"No new institutional health service shall be . . . developed within this state . . . without a determination of need and issuance of a certificate of need by the commissioner . , . .\\\"). CVMC's proposal called for an approximately $12.5 million modernization project, which included upgrading hospital infrastructure, providing additional space for ambulatory patient care (i.e., outpatient care), and improving the birthing center with integrated labor, delivery, recovery and post-partum care rooms. The project also included relocating the Hospital's laboratory and administrative functions to provide space for revisions to the ambulatory patient processing area.\\n\\u00b6 3. In May, after several supplemental filings, the Division ruled the application complete and scheduled a public hearing with the Public Oversight Commission (POC), which took place in June. In July, the POC recommended approval of the application.\\n\\u00b6 4. Following this recommendation, in accordance with the CON statute and regulations, the Commissioner'reviewed the application, considering numerous general and mandatory criteria. See 18 V.S.A \\u00a7 9440(c)(4). In September, the Commissioner denied CVMC's CON application. The Commissioner analyzed three of the \\\"general criteria\\\" listed in 18 V.S.A \\u00a7 9436(a): the need for the proposed project on the part of the population served, \\u00a7 9436(a)(4); the availability of less costly or more effective alternatives, \\u00a7 9436(a)(5); and the project's probable- impact on the costs of and charges for providing health services, \\u00a7 9436(a)(6). The Commissioner also found that four of the five \\\"mandatory criteria\\\" under 18 V.S.A. \\u00a7 9437 were relevant to CVMC's CON application. In order for a CON to issue, the Commissioner was required to find that superior alternatives to the project in terms of cost, efficiency and appropriateness did not exist, \\u00a7 9437(1); that alternatives to new construction involved in the project, such as modernization or sharing arrangements, had been considered and implemented to the maximum extent possible, \\u00a7 9437(2); that patients would experience serious problems in terms of costs, availability, or accessibility without the proposed project, \\u00a7 9437(3); and the proposed project is consistent with the CON and within the portion of the unified health care budget applicable to the Hospital, \\u00a7 9437(5).\\n\\u00b6 5. The Commissioner found that CVMC's application did not demonstrate the requisite need for the project, did not adequately explore less costly alternatives and understated the. costliness of the project, and therefore, the application failed to meet the general and mandatory criteria set out by statute. Specifically, the Commissioner found that while the infrastructure improvements were the primary goal of the overall project, CVMC had failed to provide adequate information about these improvements. The Commissioner found that the proposed infrastructure improvements related only to the areas affected by the other project goals, such as the enhancements to ambulatory care and the improvements to the birthing center, and not to the vast portion of the hospital facility left untouched by the project, stating: \\\"[t]hat the infrastructure appears to be worn out only in areas that CVMC wants to reconfigure is, perhaps, a coincidence.\\\" The Commissioner also found that CVMC did not adequately assess how costly infrastructure improvements would be without the other goals of the project. The Commissioner cited several recommendations by CVMC's engineering consultants that contradicted the need expressed in the application for some of the infrastructure improvements included in the proposal. Finally, the Commissioner found that CVMC failed to account for the loss in investment income that would be incurred from spending its reserve fund on the project. Following the Commissioner's decision, CVMC filed this appeal.\\n\\u00b6 6. Our standard of review on appeals from orders by the Commissioner is based on 8 V.S.A. \\u00a7 16, which provides that we may disturb an order by the Commissioner if it: \\\"(1) was issued pursuant to unconstitutional statutory provisions; (2) was in excess of statutory authority; (3) was issued on unlawful procedure; or (4) is not supported by substantial evidence in the record.\\\" In general, we have granted administrative bodies a great deal of deference, both in regard to their findings of fact and to their interpretations of their governing statutes and regulations. \\\"[W]e will not set aside an administrative agency's findings unless clearly erroneous. We view the evidence in the light most favorable to the prevailing party and exclude any modifying evidence. So long as the findings are supported by credible evidence, we will not disturb them.\\\" Bigelow v. Dep't of Taxes, 163 Vt. 33, 35, 652 A.2d 985, 986-87 (1994) (citations omitted); see also In re AssureCare of Vt. Inc., 165 Vt. 535, 538, 686 A.2d 959, 961 (1996) (holding that our standard of review for decisions of the Health Care Authority Board \\u2014 predecessor to the Division \\u2014 is \\\"very narrow\\\" and that \\\"we will not disturb the Board's statutory interpretations absent a compelling indication of error.\\\" (internal quotation marks and citations omitted)). Decisions of the Commissioner are therefore presumed to be correct, valid and reasonable, absent a clear and convincing showing to the contrary. In re Prof'l Nurses Serv., Inc., 164 Vt. 529, 532, 671 A.2d 1289, 1291 (1996).\\n\\u00b6 7. CVMC first argues that by not providing a detailed statement explaining why the CON application denial was contrary to the recommendation of the POC, the Commissioner violated both Vermont law and CON regulations. See 18 V.S.A. \\u00a7 9436(a)(1); BISHCA Reg. H-99-3 \\u00a7 5(M). The statutory procedures for CON applications call for the Commissioner to consider the POC's recommendation among numerous other general criteria. See 18 V.S.A. \\u00a7 9436(a)(1), 9440(c)(4). The Commissioner has met this minimal statutory obligation, as the decision denying CVMC's CON application refers to the POC recommendation and examines the public hearing proceedings before the POC. The CON regulations, however, require that the decision, if inconsistent with the POC's recommendation, \\\"provide a detailed statement explaining why\\\" the decision differs from the recommendation. BISHCA Reg. H-99-3 \\u00a7 5(M).\\n\\u00b6 8. We presume an agency's interpretation of its regulations is correct, and the challenging party must show a compelling indication of error to overcome this presumption. In re Prof'l Nurses Serv., Inc., 168 Vt. 611, 613, 719 A.2d 894, 896 (1998) (mem.). Here, the Commissioner's twenty-two page decision provides substantial justification for her decision, and the Commissioner's response to the POC's recommendation is detailed in the very nature of her decision \\u2014 specifically noting why CVMC has not established the requisite need for undergoing the project.\\n\\u00b6 9. CVMC next argues that the Commissioner's decision rests on a new, heightened standard that was improperly created by the Commissioner. CVMC argues that while the CON statute and regulations call for the Commissioner to consider the \\\"need\\\" for the proposed project, the Commissioner's decision stated that CVMC failed to demonstrate that the project was \\\"absolutely necessary,\\\" thereby raising the bar without notice to CVMC and violating 18 V.S.A. \\u00a7 9436(a), which requires that the Commissioner consider \\\"only the criteria which have been duly adopted and published 90 days prior to the submission of the original application for certificate of need.\\\" CVMC relies on previous CON application decisions where \\\"need\\\" did not require absolute need to justify issuance of a CON.\\n\\u00b6 10. The statutory provision at issue regarding \\\"need\\\" calls for the Commissioner to consider the \\\"need for the proposed new institutional health service on the part of the population served.\\\" 18 V.S.A. \\u00a7 9436(a)(4). The CON regulations expand on this provision:\\nThe applicant must demonstrate that the proposed service is needed to maintain the availability and accessibility of health services, or meets specific unmet needs of the area to be served, or that the proposed service will improve the health of the population to be served, or that the service represents a less costly alternative to existing similar services.\\nBISHCA Reg. H-99-3 \\u00a7 6(A)(4).\\n\\u00b6 11. CVMC's argument that the Commissioner has improperly applied an \\\"absolute need\\\" standard relies on a single sentence of a twenty-two page decision. Much of the Commissioner's decision offers extensive reasoning as to why CVMC's CON application does not demonstrate that the proposed service is needed within the meaning of Reg. H-99-3 \\u00a7 6(A)(4). For instance, immediately following the \\\"absolutely necessary\\\" language, the decision lists nine examples that demonstrate the Hospital's infrastructure is operating well. Taken in its entirety, the Commissioner's decision highlights significant evidence that many of the project's infrastructure enhancements are not needed, despite the age of the facility. It is within the Commissioner's discretion to determine how she should interpret \\\"need,\\\" absent any express direction by the Legislature or any compelling indication of error. Cf. In re AssureCare of Vt., Inc., 165 Vt. at 539, 686 A.2d at 962 (holding that agency did not create new criterion but, within its statutory authority, merely explained existing criterion where agency rejected CON based on applicant's lack of demonstrated ability to operate statewide HMO).\\n\\u00b6 12. CVMC's use of prior CON application decisions to demonstrate that the Commissioner created a new standard is also not persuasive. Indeed, the CON statute suggests that a degree of flexibility should be allowed from one CON application to another: \\\"[ejriteria applied to a particular review may vary according to the purpose for which that particular review is being conducted or the type of health facility or service which is being reviewed.\\\" 18 V.S.A \\u00a7 9436(b). So long as the Commissioner's interpretation is not arbitrary or capricious, we will allow it to stand. See Lilly v. Vt. Headmasters Ass'n, 160 Vt. 603, 605, 648 A.2d 810, 812 (1993) (mem.) (holding that even where rule in question admits of two interpreta tions, agency is entitled to interpret its rule as it sees fit).\\n\\u00b6 13. Moreover, the previous CON application decisions cited by CVMC can be sufficiently distinguished from the instant case. For instance, the CON application decision in the Fletcher Allen Health Care Ambulatory Care Facility and Redevelopment Project, BISHCA Docket No. 00-033-H (March 2, 2001), states that part of the facility proposed for renovation \\u2014 the birthing center \\u2014 was constructed fifty years ago and that \\\"there are a number of life safety, electrical, and heating-ventilation deficiencies.\\\" In contrast, the CVMC CON application decision cites numerous instances where CVMC failed to provide necessary information on the need for the proposed project and states that \\\"CVMC has not provided any specific information indicating life safety violations.\\\" The CON application decision in the North Country Hospital Expansion/Renovation Project, BISHCA Docket No. 99-038-H (July 10, 2001), cited the hospital's likely loss of accreditation should parts of the project not go forward.\\n\\u00b6 14. CVMC next argues that because the Commissioner did not offer CVMC the opportunity to supplement the record with information needed to receive a CON, the Commissioner's decision-making process was procedurally unfair and violated CVMC's due process rights. Reasonable notice is required in administrative actions, pursuant to the Administrative Procedure Act. See 3 V.S.A. \\u00a7 809. \\\"Notice is adequate in an administrative proceeding if the parties are sufficiently apprised of the nature of the proceeding so that there is no unfair surprise.\\\" In re Whitney, 168 Vt. 209, 213, 719 A.2d 875, 878 (1998). Our standard of review for claims regarding improper notice is well-settled:\\nThe question on review is not the adequacy of the original notice or pleading but is the fairness of the whole procedure. Critical to a determination of whether the procedure was fair is whether or not the parties were given an adequate opportunity to prepare and respond to the issues raised in the proceeding.\\nIn re Green Mountain Power Corp., 131 Vt. 284, 293, 305 A.2d 571, 577 (1973).\\n\\u00b6 15. Here, CVMC claims it did not have an opportunity to respond to the Commissioner's heightened standard of absolute need for the proposed project. As we have explained above, however, there is sufficient evidence in the Commissioner's decision that there was no such heightened standard. There is no question that CVMC was provided adequate notice that it would have to show a need for the proposed project, both through the CON statute and the regulations. See 18 V.S.A. \\u00a7 9434(a) (\\\"[n]o new institutional health service shall be offered or developed . . . without a determination of need\\\") (emphasis added); id. \\u00a7 9436(a)(4) (general criteria include the \\\"need for the proposed new institutional health service\\\") (emphasis added); BISHCA Reg. H-99-3 \\u00a7 6(A)(4) (same). With this substantial notice, the burden of proof was on CVMC to show that the proposal met the \\\"need\\\" requirements for CON application approval, not on the Commissioner to ensure that CVMC had demonstrated need for the proposed project such that she would approve of the CON application. See In re AssureCare of Vt., Inc., 165 Vt. at 541, 686 A.2d at 963 (burden of proof is on applicant to provide evidence on permissive criteria).\\n\\u00b6 16. Moreover, despite the fact that it had no burden to do so, the Division attempted to solicit additional information on the need for the proposed project throughout the CON application process. Even though CVMC submitted additional information on seven occasions, CVMC still failed to respond adequately to these requests, as the Commissioner pointed out in her decision: \\\"CVMC offers little or nothing to support its assertions and there is no evidence that the infrastructure is, indeed, 'worn-out.' \\\"\\n\\u00b6 17. CVMC suggests that because the Division ruled the application complete, the requisite showing of need should have been present in the application. But pursuant to the CON statute and the Department's regulations, a CON application is complete when it \\\"contains all necessary information required.\\\" 18 V.S.A \\u00a7 9440(b)(4); see also BISHCA Reg. H-99-3 \\u00a7 4(A) (\\\"[t]he Division shall determine whether the information and data furnished by the applicant meets the requirements of the standard application\\\" to rule upon completeness), A party may, and frequently does, meet the standard for completeness of the CON application (\\\"all necessary information\\\") without being able to establish the need for the proposed project on the part of the population served, \\u00a7 9436(a)(4), or whether patients would experience serious problems in terms of costs, availability, or accessibility without the proposed project, \\u00a7 9437(3). In CVMC's case, however, the Commissioner found that the evidence presented was conclusory and inadequate in establishing whether the population served had a need for the proposed project, \\u00a7 9436(a)(4), or whether patients would experience serious problems in terms of costs, availability, or accessibility without the proposed project, \\u00a7 9437(3).\\n\\u00b6 18. CVMC also argues that the Commissioner's decision should be overturned on the grounds that it is clearly erroneous. We disagree. We presume the Commissioner's decisions are correct, valid and reasonable, absent a clear and convincing showing to the contrary. See In re Prof'l Nurses Serv., Inc., 164 Vt. at 532, 671 A.2d at 1291. With regard to factual findings, so long as the Commissioner's findings are supported by credible evidence, viewed in the light most favorable to the prevailing party, we will not disturb them. See Bigelow, 163 Vt. at 35, 652 A.2d at 986-87.\\n\\u00b6 19. CVMC argues that the Commissioner erred in various portions of the decision by failing to consider overwhelming evidence of need for the proposed project. CVMC cites several portions of the record to show that substantial evidence of need existed to justify infrastructure improvements. These citations, however, only support general assertions that infrastructure tends to wear out after thirty years or so. As the Commissioner's decision noted, CVMC failed to provide any substantial evidence in the record that states specific problems in the instant infrastructure. The Commissioner also stated that many of the specific goals in the infrastructure improvements were contradicted by consultants who analyzed the Hospital and its proposal. CVMC also contends that with respect to the ambulatory care and birthing center enhancements the Commissioner disregarded substantial evidence that demonstrated need. CVMC fails to cite any portion of the record that clearly and convincingly demonstrates that the Commissioner's decision was erroneous.\\n\\u00b6 20. Lastly, CVMC argues that the Commissioner's analysis of the project's long-term financial feasibility, which the Commissioner provided pursuant to 18 V.S.A \\u00a7 9436(a)(6), was clearly erroneous. CVMC submits that the Commissioner failed to substantiate her ruling that the projected staff savings are \\\"uncertain.\\\" The Commissioner's regulations regarding the financial feasibility criterion provide that an applicant must \\\"demonstrate financial feasibility of the proposal and capacity, including resources sufficient to implement the project and sustain its operation over time.\\\" BISHCA Reg. H-99-3 \\u00a7 6(A)(6). We presume the Commissioner's interpretation of her own regulations is correct, absent a compelling indication of error. See In re Prof'l Nurses Serv., Inc., 168 Vt. at 613, 719 A.2d at 896. The minutes from the POC meeting reflect that when asked how the savings would be realized, CVMC responded merely that \\\"once the work has been completed they could show the savings in the cost of the 'old staffing' versus the 'new efficiencies.'\\\" We find no compelling indication of error in the Commissioner's decision that CVMC had not adequately demonstrated the financial feasibility of the proposed project.\\n\\u00b621. CVMC also notes that the Commissioner's financial feasibility analysis accounts for future interest that would be lost from CVMC's reserve fund because CVMC would expend the fund on the project. CVMC argues that because these interest gains would have to be kept within the fund, they are not actually lost from CVMC's operating budget. Nevertheless, the Commissioner was within her discretion in accounting for depletions from the reserve fund, as these depletions could have an impact on the Hospital's ability to fund what, in the Commissioner's opinion, may be more reasonable capital improvements. This decision was within the Commissioner's statutory role, as defined by 18 V.S.A. \\u00a7 9431: \\\"the general welfare and protection of the lives, health and property of the people of this state require that all new institutional health services be offered or developed in a manner which . . . promotes rational allocation of health care resources in the state.\\\" (emphasis added).\\n\\u00b6 22. We do not quarrel with the dissent's characterization of the significance of CVMC to the community of central Vermont. The issue before us is not how we would have decided the merits of CVMC's CON application but whether \\u2014 given the standard of review we are bound to apply to appeals of the Commissioner's decisions \\u2014we can conclude that the Commissioner erred as a matter of law. On the record before us we cannot. The Commissioner adequately provided justification for her decision, interpreted her governing statute and regulations in a reasonable manner, and based her findings on credible evidence in the record.\\nAffirmed.\\nCVMC's reply brief asserts for the first time that the Commissioner's denial of its CON application was not based solely upon criteria set forth in 18 V.S.A. \\u00a7 9436(a) but rather upon \\\"unstated political grounds.\\\" In support of its assertion, CVMC relies upon a transcript of a January 2002 radio talk show on which Governor Dean responded to an interviewer's questions about the Commissioner's denial of CVMC's CON application. The transcript is not part of the record in this case nor do we agree with the dissent's contention that statements made on a radio talle show may be judicially noticed as facts \\\"not subject to reasonable dispute.\\\" A judicially noticed adjudicative fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court, see, e.g., Ruppert v. Comm'r of Taxes, 117 Vt. 83, 86, 85 A.2d 584, 586 (1952) (place of publication of certain newspapers), or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned. See, e.g., Towne v. Rizzico, 113 Vt. 205, 207, 32 A.2d 129, 130 (1943) (time of sunset); V.R.E. '201. Nor does the attachment of the transcript to the reply brief alter these tests. See, e.g., Thompson v. Tel. & Data Sys., Inc., 888 P.2d 16, 18 (Or. Ct. App. 1994) (\\\"[Tjhere is a distinction between judicially noticing the existence of a court record and noticing the truth of the contents of that record, much less the truth of the contents of a document that happens to be appended to the court record.\\\"). While it may be undisputed that Governor Dean made the statements contained in the transcript, the significance of those statements for this proceeding is uncertain.\\nOur inability to consider the reply brief does not leave CVMC without a remedy, if it can show that the Commissioner did not comply with the statute, 18 V.S.A. \\u00a7 9436(a), in rendering her decision. It may petition the superior court for extraordinary relief in the nature of certiorari, pursuant to V.R.A.P. 21. See In re Mallary, 127 Vt. 412, 414, 250 A.2d 837, 838 (1969) (writ of certiorari is appropriate to review \\\"the judicial action of inferior courts, special tribunals, public officers, and bodies exercising judicial functions\\\"; writ granted to review action of board of tax appraisers); see also Franklin v. Hous. Auth. of Milwaukee, 455 N.W.2d 668, 671 (Wis. Ct. App. 1990) (\\\"[Cjertiorari is available to review legal questions involved in an administrative agency's decision where statutory appeal is either inadequate to address the issue or is not available.\\\"); Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992) (\\\"[I]n the absence of an adequate method of review or legal remedy, judicial review of the quasi-judicial decisions of administrative bodies, if available, must be invoked by writ of certiorari.\\\"). As part of its petition, CVMC will need to demonstrate that it has no other adequate remedy at law and that no other means of review is available. In re Mallory, 127 Vt. at 414-15, 250 A.2d at 838. Further, since \\\"certiorari review is ordinarily restricted to the record,\\\" Hunt v. Village of Bristol, 159 Vt. 439, 442, 620 A.2d 1266, 1268 (1992), CVMC will need to demonstrate the necessity of supplementing the trial record with \\\"an appropriate evidentiary foundation,\\\" State v. Forte, 154 Vt. 46, 50, 572 A.2d 941, 943 (1990), concerning the alleged \\\"unstated political grounds\\\" of the Commissioner's decision.\"}"

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+"{\"id\": \"2475457\", \"name\": \"Aldis vs. Hull\", \"name_abbreviation\": \"Aldis v. Hull\", \"decision_date\": \"1814-12\", \"docket_number\": \"\", \"first_page\": \"309\", \"last_page\": \"314\", \"citations\": \"1 D. Chip. 309\", \"volume\": \"1\", \"reporter\": \"Chipman, D.\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-11T00:18:45.305286+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Aldis vs. Hull.\", \"head_matter\": \"Aldis vs. Hull.\\nThe Act directing proceedings against absconding or concealed debtors, provides that if execution shall issue against the good1? and chattels of the principal debtor, in possession of the trustee or trustees, and a return be made by any proper officer on such execution, that such trustee or trustees refused or neglected to expose such goods and chattels, or to pay the amount of such execution, if there be sufficient in his, her or their hands and possession, the Court shall, on motion of the creditor, grant a rule to shew cause why execution should not issue on such judgment against such trustee or trustees, his, her or their proper goods aud estate. \\u2014 And a scire facias cannot be substituted in the place of such motion \\u2014 the creditor cannot, in such case, have a remedy by scire facias.\\nFranklin,\\nDecember, 1814.\\nASA ALDIS, the present plaintiff, commenced his action before the County Court in September, 1811, against Justin Wells, an absconding or concealed debtor, and summoned Samuel Hull, the present defendant, as his trustee. Hull, the trustee, at the same term of the Court, made a disclosure on oath; and the Court adjudged him to be a trustee of Wells, the absconding debtor; and found that he had in his possession goods and chattels, rights and credits of the said Wells to the amount of two hundred dollars. And Aldis, at the same term, obtained a regular judgment against Wells, the absconding debtor, for $51 84 damages, and $13 29 costs of suit; and took out execution thereon, as awarded by the Court, against the goods and chattels of the said Weils, in the possession of the said Hull the trustee, dated the 30th day of September, 1811, and delivered the same to a proper officer, who made return thereon that he had demanded of Hull the trustee, to expose the goods & chattels of the s\\u2019d Wells, in his possession, for the purpose of satisfying said execution; and that he neglected and refused to expose such goods and chattels, or to pay the amount of said ex_ ecution. Whereupon, Aldis brought a scire facias in the County Court,, reciting the proceedings in the suit against Wells, in substance as above stated, and praying for an execution against Hull the trustee, of his own proper goods, &c.\\nTo the scire facias, Hull the trustee pleaded, that the plaintiff ought not to have execution tjiereof against him, for that, in the original action he had disclosed, that he held in his own name, a note of hand, for the sum of $600 against one R. W. of Georgia in said County of Franklin, secured by a mortgage on a certain lot of land in said Georgia, and that he held in trust for the said Justin Wells two hundred dollars of said note; on which account, and none other, the said Court adjudged him to be the trustee of Wells the absconding debtor, to the amount of two hundred dollars. \\u2014 That since the disclosure aforesaid, and since the decision of the Court as aforesaid, he had commenced an action against the said R. W. on the note aforesaid \\u2014 had recovered judgment and taken out execution thereon; on which the said R. W. had been committed to prison.\\u2014 That he was insolvent, and had been legally discharged from his imprisonment on said execution, upon taking the oath in such case provided by law; and that said execution yet remained wholly unpaid and unsatisfied. And further, that Robert Bowne of the City of New-York, claiming the said lot of land so mortgaged to him the defendant, to secure the payment of said note as aforesaid, had brought an action of ejectment for the recovery of the same against him the defendant; and had since the disclosure aforesaid, and since the decision of the Court thereon as aforesaid, recovered the seizin and possession of said lot, in that action of him the defendant, on an elder and better title; whereby the said sum of $200, which he had holden in trust for the said Wells as aforesaid, was wholly lost.\\nTo this plea the plaintiff demurred, and had judgment in the County Court for his execution; from which judgment the defendant entered an appeal to this Court. The cause now came on to be heard on the same pleadings.\\nTurner, for the plaintiff.\\nThe finding of the Court, in a suit against an absconding debtor \\u2014 that the trustee has goods and of the absconding debtor\\u2019s in his hands and possession, which is entered and recorded in the cause, is, in effect, a judgment, and is conclusive against the trustee for the amount found in his possession by the Court. The trustee has an opportunity on his .examination, to disclose all the circumstances relative to the goods, chattels, rights and credits of the principal debtor in his hands or possession, on which the Court are competent to decide. If he neglect so to disclose, he is forever thereafter precluded; he cannot go back of the judgment, or finding of the Court, which is in the nature a judgment. The trustee, in such case, can no more go back of the find !ng of the Court, and object to the issuing of an execution against his own body, goods, and estate, after having neglected to expose the goods of the principal debtor found in his possession, or to pay the amount found in his possession, than though'he had been a party to the principal judgment: he cannot excuse himself for any loss which may have happened after the disclosure and finding of the Court.\\nSwift, for the defendant.\\nThe trustee cannot be holden for the amount found in his hands, in all events that may happen. lie is bound to keep the property, and to perform the trust with all due diligence; but, if a loss happen, by inevitable accident, without any fault of his, he cannot be held accountable; but such loss being shewn on a scire facias, will be a good and sufficient reason why execution should not issue against the body and estate of the trustee. The statute gives the trustee an opportunity to shew cause, but why give him this opportunity if no cause can be shewn ?\\nThe Court said they would consider the case, but suggested that a scire facias was not the proper remedy in this case, but a rule to shew cause why the plaintiff should not have execution against the trustee.\", \"word_count\": \"2433\", \"char_count\": \"13704\", \"text\": \"Chipman, Ch. J.\\nafterwards delivered the opinion of the Court.\\nThe plaintiff's counsel are so far correct on the first point, that although the decision of the Court, on the disclosure of the trustee, or on other proof made against him, is not strictly a judgment, yet it partakes so far of the nature of a judgment, that the trustee is concluded by it to that time. He cannot be permitted to shew in his discharge, or in diminution of the funds found in his possession, any matter which existed at the time of his examination, and which it was then in his power to shew; but the position of the plaintiiPs counsel cannot be supported further than this. Let us consider the trustee's situation as bailee or trustee of the original debtor, whether under an express or implied contract. The law imposes upon the bailee or trustee certain duties; he must use due diligence and care in keeping or using the thing bailed or intrusted to his care and keeping, according to the nature of the bailment or trust \\u2022 and for any default of such due diligence and care, he is answerable \\u2022to the bailor or cestueque trust. But if the thing be lost or de strayed by inevitable accident,'without any default in him, he is discharged. In this action against an absconding or concealed debt- or, by the decision of the Court, that the trustee has in his possesS\\u00a1011 the g00(js or estate of the principal debtor, the bailor or cestueque trust is changed 5 the plaintiff, the creditor, is substituted in place of the original bailor or cestueque trust. But no other change is thereby effected: no new duties, or other conditions are thereby imposed on the trustee. To every claim of that kind it is a sufficient answer for him to say non in haecfoedera veni, I entered into no such agreement. He is still holden to use the same care, diligence and good management, and no more. The same inevitable accident taking place after the disclosure, will excuse or discharge him in his new relation, which would have been a good excuse or discharge against the original bailor or cestueque trust; and would be a good cause to be shewn on his part why execution should not issue against his body or against his own proper goods and estate.\\nAlthough the Court do not decide on the defendant's plea, I will briefly observe that the failure of the security does not sufficiently appear to have happened after the disclosure. And the scire facias, if it be a proper remedy, does not sufficiently set forth the record. It ought to set forth the whole disclosure or proof on which the Court decided, and which the statute.directs to be recorded, for the purpose of settling thereafter the rights of the parties. I should not be ready to admit, that a record merely that the person summoned, was adjudged to be a trustee, to a certain amount, without a record of the examination or proof on which the adjudication was made, would hold the trustee accountable for any thing.\\nBut the ground bn which the Court decide is, that a scire facias is not the proper legal remedy in this case. It will be kept in view, that this proceeding against the trustee of an absconding or concealed debtor is not a common law proceeding, or governed by common law precedents : it is with us a mere statute provision, and the proceedings are regulated and directed by the statute. The process of foreign attachment, founded on the custom of London, was indeed somewhat similar to our statute provision \\u2014 at least it had the same end in view; but it was a local custom, and not a part of the general common law of the Kingdom.\\nIt is true, that at common law, a scire facias, to have execution '\\u00abf a judgment or-recognizance, which is a judgment with a defeasanee, lies in the same'Court where the judgment is of record. JBut in the case under consideration, the proceedings are regulated by the 5th Section of the Act directing proceedings against the trustees of absconding or concealed debtors; by which it is provided, \\\" That if the trustee or trustees shall appear at the Court, and it shall be made evident by his, her or their oath, or by other proof, that the trustee or trustees had monies, goods, chattels,. rights or credits of the principal debtor in his, her or their possession, at the time, of the service of such process, or at any time since, a record thereof shall be made, &c.\\\" \\u2014 'drat is, as I understand it, a record shall be made of the whole disclosure of the trustee, as made on oath, or of the proof produced by the plaintiff, the creditor, and that for the very good reason which I have before mentioned \\u2014 for the purpose of settling the future rights of the parties. And such trustee or trustees shall be liable to the plaintiff for the money, goods, chattels, rights and credits so found in liis, her or their hands or possession, to the amount of the judgment recovered against the principal debtor, if so much there be, and execution shall issue on the judgment so recovered against the goods and chattels in the possession of such trustee or trustees.\\\"\\nThe finding of the Court against the trustee is nowhere called a judgment, and may with propriety be called an inquest; and is a foundation for future proceedings, as provided by the statute. The 6th Section points out the special mode of proceeding which the plaintiff must pursue in order to obtain the effect of his judgment against the principal debtor, out of the effects in the hands of the trustee. \\\" That if execution shall issue against the goods and chattels in the possession of the trustee or trustees, and a return be made by any proper officer on such execution, that such trustee or trustees, refused or neglected to expose such goods and chattels, or-to pay the amount of such execution, if there be sufficient in his, her or their hands or possession, the Court shall on the motion of the creditor, grant a rule to shew cause why execution 'should not issue against such trustee or trustees 01 their goods and estate; and upon affidavit of the service of such rule on the, trustee or trustees, and no sufficient cause being shewn to the contrary, such execution may be awarded.\\\"\\nA scire facias would not lie at common law, in this case, from any analogy, and the statute does not give it; but specially provides another remedy, and that remedy must be pursued: A remedy much better adapted to the nature of the case, and very wisely adopted instead of a scire facias. A scire Jadas would, as we see in this very case, often be attended with that delay and expense incident to the common course of judicial proceedings, and frequently more than exhaust the whole subject of litigation. The mode pointed out by the statute, is less expensive, more expeditious, and free from the technical forms and niceties, of special pleading. It gives a fair opportunity to examine at large into the real justice of the case, which will often depend on a variety and complication of circumstances. The trustee will be at liberty in shewing cause, to avail himself of every fact and legal matter, to discharge him from further liability either in whole or in part, by proper documents and affidavits, which the creditor may controvert in the same way; and the Court will be enabled to decide agreeably to the justice of the case. \\u2014 It is much the most advantageous for all parties \\u2014 certainly so for the plaintiff.\\nIn this view of the case, (and we think it the only legal view which can be taken of it) the Court are clearly of opinion that a scire facias is not the proper remedy in this case. There must therefore be\\nJudgment for the defendant.\"}"

vt/3696860.json

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+"{\"id\": \"3696860\", \"name\": \"In re C.C., Juvenile\", \"name_abbreviation\": \"In re C.C.\", \"decision_date\": \"2009-11-06\", \"docket_number\": \"No. 08-287\", \"first_page\": \"474\", \"last_page\": \"487\", \"citations\": \"186 Vt. 474\", \"volume\": \"186\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-11T01:37:00.624490+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.\", \"parties\": \"In re C.C., Juvenile\", \"head_matter\": \"2009 VT 108\\nIn re C.C., Juvenile\\n[987 A.2d 1000]\\nNo. 08-287\\nPresent: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.\\nOpinion Filed November 6, 2009\\nKeith W. Flynn, Orleans County State\\u2019s Attorney, and Alan C. Franklin, Deputy State\\u2019s Attorney, Newport, for Plaintiff-Appellee.\\nMichael Rose, St. Albans, for Defendant-Appellant.\", \"word_count\": \"4583\", \"char_count\": \"28145\", \"text\": \"Dooley, J.\\n\\u00b6 1. Defendant challenges the trial court's denial of his motion to suppress an ecstasy pill removed from his pocket without a warrant during a weapons pat-down. He argues that the State did not meet the \\\"immediately apparent\\\" probable cause standard for removal of the pill under the \\\"plain-feel\\\" doctrine, an exception to the Fourth Amendment's warrant requirement. The State responds that the warrantless removal of the pill was legal under the plain-feel doctrine because the officer was in a lawful position to feel the pill and its incriminating character, and that he had the lawful right to access the pill. We agree with defendant, and reverse and remand.\\n\\u00b6 2. The trial court found the following facts. A Newport City police officer pulled over a speeding vehicle on October 30, 2007. When the officer surveyed the vehicle for passengers, he recognized one of the occupants as D.K. \\u2014 a minor with whom he was familiar and who had an outstanding warrant for fleeing Depart ment for Children and Families custody. At the time of the traffic stop, defendant was seated in the rear passenger seat of the vehicle. D.K., in an effort to flee, attempted to push past a second Newport officer at the scene. His efforts were futile, and he was detained by the officers. A subsequent pat-down of D.K. revealed that he was carrying a .22 caliber handgun, marijuana, and other illegal drugs in pill form. The marijuana and pills were found in different pockets. D.K. was then placed in custody, and one of the officers proceeded to pat down defendant. The trial court inferred, based on trial testimony from one of the officers at the scene, that the pat-down of defendant was conducted with more focus than a normal pat-down because a weapon and drugs were found on defendant's fellow passenger, D.K.\\n\\u00b6 3. During the pat-down of defendant, the officer felt a bulge which he testified was similar to what D.K. had in his pocket. The officer believed that what he felt was contained in a plastic package, and he later testified that he thought at the time that it was marijuana. Upon further questioning at the suppression hearing, the officer stated that he had believed that what he felt was \\\"dope.\\\" The trial court stated that the officer \\\"was not particularly clear in his memory of the events of that night,\\\" and the court inferred from his testimony that he believed what he felt to be some form of illegal drug contraband, principally because of the feel of the packaging. The officer ultimately pulled defendant's pocket inside out and discovered a bag containing twenty-eight pills, one of which was an ecstasy pill.\\n\\u00b64. The officer seized the pills and arrested defendant. Later, defendant was charged with possessing less than 2 grams of ecstasy in violation of 18 V.S.A. \\u00a7 4235(b)(1). Defendant entered a denial in response to this charge and then filed a motion to suppress the ecstasy pill. After conducting an evidentiary hearing, the trial court denied his motion to suppress. Defendant then entered a conditional admission and was placed on juvenile probation.\\n\\u00b6 5. In denying the motion to suppress, the trial court found that the officer had probable cause to search and seize the contents of defendant's pockets because he had \\\"a sufficient and reasonable belief that what he felt in [defendant's] pockets was contraband, despite his mistaken guess as to its initial nature.\\\" The belief was sufficient and reasonable, according to the trial court, because defendant was a co-passenger in the same car as D.K., who had just been lawfully arrested, the officers had found in D.K's pockets baggies of illegal drugs, and the feel of a similar baggie in defendant's pocket allowed for a reasonable inference that defendant was also carrying an illicit substance.\\n\\u00b6 6. Defendant appeals the denial of his motion to suppress, arguing that the trial court's legal conclusion is not supported by adequate findings of fact and that the seizure of the content of defendant's pockets violated the United States and Vermont Constitutions. We conclude that the State failed to sustain its burden of proving that the seizure did not violate the United States Constitution, and that the court erred in denying defendant's motion to suppress.\\n\\u00b6 7. In reviewing a motion to suppress, we review the trial court's legal conclusions de novo, State v. Chapman, 173 Vt. 400, 402, 800 A.2d 446, 448 (2002), and its findings of fact under a clearly erroneous standard, State v. Simoneau, 2003 VT 83, \\u00b6 14, 176 Vt. 15, 833 A.2d 1280.\\n\\u00b6 8. The Fourth Amendment of the United States Constitution protects citizens against unreasonable searches and seizures. U.S. Const, amend. IV. The United States Supreme Court has decided two pivotal Fourth Amendment cases regarding protective pat-downs, Terry v. Ohio, 392 U.S. 1 (1968), and Minnesota v. Dickerson, 508 U.S. 366 (1993). In Terry, the Court held:\\n[Wjhere a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.\\n392 U.S. at 30. The Court subsequently expanded upon Terry in Dickerson by holding that police officers may seize nonthreatening contraband detected during a protective pat-down if the search stays within the Terry boundaries. Dickerson, 508 U.S. at 373. The Dickerson Court stated:\\nIf a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.\\nId. at 375-76. The Court justified the plain-feel doctrine on the grounds that \\\"[t]he seizure of an item whose identity is already known occasions no further invasion of privacy\\\" and that a \\\"suspect's privacy interests are not advanced by a categorical rule barring the seizure of contraband plainly detected through the sense of touch.\\\" Id. at 377.\\n\\u00b6 9. We recognized the plain-feel doctrine in State v. Ford, 2007 VT 107, \\u00b6 12, 182 Vt. 421, 940 A.2d 687, but we did not discuss the scope or application of this doctrine because the Ford trial court failed to make any findings of fact with respect to the plain-feel doctrine. In applying the \\\"immediately apparent\\\" standard in the context of a plain-view case, we recognized that the United States Supreme Court has equated the phrase \\\"immediately apparent\\\" with probable cause. State v. Trudeau, 165 Vt. 355, 359, 683 A.2d 725, 728 (1996). For an item's incriminating character to be immediately apparent, there must be \\\"probable cause to associate the property . . . with criminal activity.\\\" Id. (quotations omitted). \\\"Probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime .\\\" Id. (quotations omitted); see also United States v. Schiavo, 29 F.3d 6, 9 (1st Cir. 1994) (upholding district court's conclusion that when officer is unable to identify contents of a bulge in a jacket pocket, plain-feel doctrine does not apply). In evaluating whether probable cause exists, we \\\"must consider the totality of the circumstances\\\" surrounding the search. State v. Guzman, 2008 VT 116, \\u00b6 11, 184 Vt. 518, 965 A.2d 544; accord Cost v. Commonwealth, 657 S.E.2d 505, 507 (Va. 2008) (\\\"[T]he determination whether a law enforcement officer had sufficient probable cause to seize contraband from a person in the course of a Terry pat-down search requires a consideration of the totality of the circumstances surrounding the search, as well as a consideration of the officer's knowledge, training and experience.\\\").\\n\\u00b6 10. The State has the burden to prove that when the officer conducted the pat-down of defendant it was immediately apparent to the officer that the item in defendant's pocket was contraband or other evidence of a crime. See United States v. Jeffers, 342 U.S. 48, 51 (1951). The parties do not dispute that the officer's pat-down of defendant was lawful. At issue here is whether the officer had probable cause to seize the contents of defendant's pocket under the plain-feel doctrine. We disagree with the trial court and conclude that the State failed to prove that the officer had probable cause.\\n\\u00b6 11. For probable cause to exist, a reasonable officer must have been able to perceive the contraband or evidentiary nature of the object before its seizure. See United States v. Gibson, 19 F.3d 1449, 1451 (D.C. Cir. 1994) (requiring suppression when the government did not adequately explain \\\"how a hard, flat, angular object in someone's pocket would lead a law enforcement officer of reasonable caution to believe an offense had been or is being committed\\\"); State v. Williams, 469 S.E.2d 261, 263 (Ga. Ct. App. 1996) (affirming trial court's suppression of evidence because object's contour did not make itself readily apparent to officer who testified that he \\\"really couldn't tell\\\" what kind of contraband was in defendant's pocket, but only \\\"that it was something in a bag\\\"); State v. Beveridge, 436 S.E.2d 912, 916 (N.C. Ct. App. 1993) (holding that when a pat-down only revealed that the defendant had a plastic bag in his pocket, it must be immediately apparent that the contents of a plastic bag were contraband for the officer to have probable cause); Cost, 657 S.E.2d at 508 (\\\"[I]t is self-evident that if an item may just as well be a legal medication dispensed in capsule form or a capsule containing an illegal drug, its character as the latter cannot be readily apparent by feeling a suspect's outer clothing that contains the item inside.\\\"). The officer did not testify that he felt anything unique about the bag in defendant's pocket which would indicate that contraband was contained in the bag. See Commonwealth v. Stevenson, 744 A.2d 1261, 1267 (Pa. 2000) (requiring officer to \\\"explain what it was about the mass or contour of the particular package felt\\\" that led him to the conclusion that the package contained cocaine). The officer's initial, but mistaken, suspicion that the bag would contain marijuana shows that he had not perceived the nature of the bag's contents, as the feel of a plastic bag containing marijuana does not correspond to the feel of a bag with twenty-eight pills in it.\\n\\u00b6 12. We are left primarily with the officer's identification of the presence of a plastic bag in defendant's pocket, combined with any relevant inference that can be drawn from the contraband found in the search of D.K. First, we decline to hold that the mere possession of a plastic bag in a pocket is sufficiently incriminating to render it immediately apparent that the contents of that bag are contraband. In reaching this conclusion, we recognize that courts have split on whether an officer may seize a container that is not in itself contraband and the contents of which are unidentifiable prior to the seizure, yet is known to be routinely used to package or contain drugs. See Ball v. United States, 803 A.2d 971, 976-78 & nn. 4-5 (D.C. 2002) (listing cases).\\n\\u00b6 13. Our case is similar to Murphy v. Commonwealth, 570 S.E.2d 836 (Va. 2002), and we find the reasoning of that case persuasive. In Murphy, the Supreme Court of Virginia held that marijuana contained in a plastic bag in the suspect's pants pocket was illegally seized during a pat-down search because the character of the bag's contents as contraband was not immediately apparent from the officer's tactile perception and, thus, the officer did not have probable cause to seize the bag and its content without a warrant. Id. at 839-40. In so holding, the court distinguished between the situation of when the officer is able to identify the object inside the defendant's pocket as marijuana and when the officer can \\\"establish!] only that the character of the object as a plastic bag was immediately apparent from the 'pat down' search, and that he knew from his training and experience that plastic bags often are used to package marijuana.\\\" Id. at 839; see also Ray v. State, 849 So. 2d 1222, 1226 (Fla. Dist. Ct. App. 2003) (holding that merely feeling plastic baggie, without something unique about the package that would indicate narcotics were contained within, even though narcotics are frequently packaged in plastic baggies, is not enough to establish probable cause); State v. Henderson, 589 S.E.2d 647, 650 (Ga. Ct. App. 2003) (holding that \\\"at a minimum, the officer must testify that, based on his experience, the item's contour or mass makes its identity as contraband immediately apparent,\\\" and that the evidence in this case did not meet that threshold because it \\\"merely established that he felt a plastic bag and had no doubt it contained contraband because contraband is frequently packaged in plastic bags and the coin pocket is a well-known place for individuals to hide drugs\\\"); Commonwealth v. Stackfield, 651 A.2d 558, 562 (Pa. Super. Ct. 1994) (overturning trial court's conclusion that the item felt was immediately recognized as contraband, because the officer felt and recognized only a baggie, and \\\"[a] zip-lock baggie is not per se contraband, although material contained in a zip-lock baggie may well be.\\\").\\n\\u00b6 14. We also recognize that there is more relevant information here. The trial court heavily weighted the fact that a co-passenger of defendant was also found with contraband inside a plastic bag in his pocket and concluded that it was immediately apparent that defendant had contraband based on the officer's experience with D.K. The logic is that if a bag found on D.K. contained contraband then a bag found on defendant is likely to contain contraband. We think the inference is too broad to make the presence of contraband immediately apparent. There is no connection between D.K. and defendant, other than that they were passengers in the same vehicle. See Murphy, 570 S.E.2d at 839-40 (holding that lack of probable cause to seize pocket contents was not altered by fact that the defendant \\\"was present in a residence that was the subject of a search warrant for illegal drugs\\\" because the record \\\"contains no evidence linking him to the suspected presence of those drugs\\\"). The vehicle was stopped for speeding; there was no evidence of drug activity involving the vehicle. As we emphasize above, the officer was unable to identify the form of the contraband until it was removed from defendant's pocket. The record reveals no evidence that defendant attempted to flee, as D.K. did, or otherwise engaged in any suspicious or incriminating behavior.\\n\\u00b6 15. As there were no other facts or circumstances in evidence that would add to the officer's belief that the plastic bag contained illegal drugs, we conclude that the incriminating character of the contraband located in defendant's pocket was not immediately apparent to the officer and thus the officer did not have probable cause under the plain-feel doctrine to remove the contents of defendant's pocket without a warrant. Therefore, defendant's Fourth Amendment rights were violated, and the ecstasy pill seized from defendant's pocket should have been suppressed.\\nReversed and remanded.\\nBecause we hold that the Fourth Amendment adequately protects defendant's rights in this case, we have not reached defendant's argument that the search violated Chapter I, Article 11 of the Vermont Constitution. Our conclusion that it is unnecessary to reach the Vermont constitutional argument in this case is not a comment on the scope of protections afforded under Article 11. See State v. Cunningham, 2008 VT 43, \\u00b6 16, 183 Vt. 401, 954 A.2d 1290 (\\\"We have consistently held that Article 11 provides greater protections than its federal analog, the Fourth Amendment.\\\"). Contrary to the view of the concurrence, we do not believe that our application of the Fourth Amendment faces an \\\"uncertain future.\\\"\"}"

vt/3700613.json

@@ -0,0 +1 @@
+"{\"id\": \"3700613\", \"name\": \"Scott ANDERSON and Virginia Anderson v. Barbara Langrehr JOHNSON, Barbara Schoenberg, Berg, Carmolli & Kent Real Estate d/b/a Berg, Carmolli & Kent Realty and S & S Gagnon d/b/a Potvin Real Estate\", \"name_abbreviation\": \"Anderson v. Johnson\", \"decision_date\": \"2011-01-31\", \"docket_number\": \"No. 09-102\", \"first_page\": \"603\", \"last_page\": \"608\", \"citations\": \"189 Vt. 603\", \"volume\": \"189\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-11T01:37:00.624859+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Scott ANDERSON and Virginia Anderson v. Barbara Langrehr JOHNSON, Barbara Schoenberg, Berg, Carmolli & Kent Real Estate d/b/a Berg, Carmolli & Kent Realty and S & S Gagnon d/b/a Potvin Real Estate\", \"head_matter\": \"2011 VT 17\\nScott ANDERSON and Virginia Anderson v. Barbara Langrehr JOHNSON, Barbara Schoenberg, Berg, Carmolli & Kent Real Estate d/b/a Berg, Carmolli & Kent Realty and S & S Gagnon d/b/a Potvin Real Estate\\n[19 A.3d 86]\\nNo. 09-102\\nJanuary 31, 2011.\", \"word_count\": \"2726\", \"char_count\": \"17256\", \"text\": \"\\u00b6 1. Defendant Berg, Carmolli & Kent Realty (BCK) appeals from a jury verdict finding it liable for violation of the Vermont Consumer Fraud Act but awarding no compensatory damages or other relief, as well as from an order granting attorney's fees to plaintiff homebuyers. BCK contends the finding of liability was predicated upon several trial court errors, and that the court erred in awarding attorney's fees. We conclude that the award of attorney's fees was erroneous in this case, where the verdict granted plaintiffs no relief, vindicated no significant legal rights, and advanced no broader policy interests. Our conclusion renders it unnecessary to address BCK's remaining claims.\\n\\u00b6 2. The essential facts may be briefly summarized. In April 2005, plaintiffs purchased a single-family home on a 2.38-acre parcel located in the Town of Barre. Plaintiffs later sued the seller, seller's realtor (BCK), and their own realtor for negligent misrepresentation and consumer fraud. The gist of the complaint was that seller's property information report failed to disclose that seller had subdivided the property in 2002 into two lots, the 2.38-acre parcel and house and a smaller 1.86-acre vacant lot which seller planned to retain; that an outdated deed and confusing tax map faxed by BCK to plaintiffs' realtor misled plaintiffs to believe that they were purchasing the entire undivided 4.24 acre parcel; that plaintiffs relied on these misrepresentations in offering to purchase the property for the listed sale price of $235,000; that plaintiffs were thereby deprived of the benefit of their bargain; and that they were entitled to compensatory damages, including the difference in value between the property they acquired and the value of the property with the boundaries as represented by defendants, as well as exemplary damages and attorney's fees. Plaintiffs acknowledged that they learned about the actual size of the parcel they were purchasing prior to closing and chose to proceed nevertheless.\\n\\u00b6 3. The issues were narrowed prior to trial. Plaintiffs settled with their realtor and stipulated to his dismissal. The trial court granted partial summary judgment in favor of the remaining defendants, dismissing the negligent-misrepresentation claim against seller and ruling that plaintiffs were precluded as a matter of law from obtaining compensatory damages from seller or BCK based upon the alleged difference in value between the property they actually purchased and the value of the combined lots. Given their awareness of the lot's actual size, the court ruled as a matter of law that plaintiffs could not have relied on defendants' alleged misrepresentations in ultimately purchasing the property. The court declined to dismiss the case in its entirety, however, ruling that other damages might be available to plaintiffs, including \\\"statutory recission,\\\" i.e., the return of BCK's commission, or other relief authorized by the Consumer Fraud Act (CFA or Act). See 9 V.S.A. \\u00a7 2461(b) (providing that any consumer who contracts for goods or services \\\"in reliance upon false or fraudulent representations\\\" or who \\\"sustains damages\\\" as a result \\\"may sue for appropriate equitable relief and may sue and recover... the amount of his damages, or the consideration . . . given by the consumer, reasonable attorney's fees, and exemplary damages\\\").\\n\\u00b6 4. The case proceeded to trial, where, on the issue of damages, plaintiffs claimed that they would have offered only $200,000 \\u2014 the assessed value of the 2.38-acre parcel in the town's grand list\\u2014 had they known of its actual boundaries, and were therefore entitled to damages of $35,000, as well as the return of the BCK commission. Defendants countered that an appraisal of the property shortly before the closing revealed that its fair market value was slightly more than the $235,000 purchase price. The trial court instructed the jury that, if plaintiffs proved a violation of the CFA, they were entitled to recover monetary damages for any actual losses they suffered, restitution damages in the form of the BCK commission, as well as exemplary damages if the requisite malice were shown.\\n\\u00b6 5. The jury responded to a set of special interrogatories, finding that plaintiffs had reasonably relied on material representations by BCK, that the representations were likely to be deceptive or misleading to the average reasonable consumer, and that they had influenced plaintiffs' decision to enter into the contract of sale. The jury also found, however, that plaintiffs had suffered no damages from their entry into the contract, and declined to award any damages for lost value or restitution.\\n\\u00b6 6. Following the verdict, plaintiffs moved for an award of attorney's fees and expenses, which BCK vigorously opposed. The trial court ultimately issued a written decision, ruling that an award of attorney's fees is mandatory when a violation of the CFA has been found, even in the absence of actual damages. The court went on to find that the \\\"lodestar\\\" figure for plaintiffs' attorney's fees (reasonable hours billed multiplied by a reasonable hourly rate) plus \\\"expenses\\\" totaled $54,310.73, and approved an award for that amount, plus costs of $1871.80 under V.R.C.P. 54(g). This appeal followed.\\n\\u00b6 7. BCK principally contends the trial court erred in awarding attorney's fees in light of the jury's failure to find any remedy or relief due to plaintiffs for the CFA violation. We review the claim against a considerable body of case law liberally construing the provisions of the Act in light of its remedial purposes. As we have explained, the CFA is designed not merely to compensate consumers for actual monetary losses resulting from fraudulent or deceptive practices in the marketplace, but more broadly \\\"to protect citizens from unfair or deceptive acts\\\" in commerce, Christie v. Dalmig, Inc., 136 Vt. 597, 600, 396 A.2d 1385, 1387 (1979), and \\\"to encourage a commercial environment highlighted by integrity and fairness.\\\" Gramatan Home Investors Corp. v. Starling, 143 Vt. 527, 536, 470 A.2d 1157, 1162 (1983). Accordingly, we have held that the remedies afforded by the Act, including in particular the award of reasonable attorney's fees, were fashioned to \\\"encourage prosecution of individual consumer fraud claims\\\" and that an award of such fees is thus mandated where a plaintiff has made a showing of fraud. L'Esperance v. Benware, 2003 VT 43, \\u00b6 27, 175 Vt. 292, 830 A2d 675 (quotation omitted). Consistent with these policy goals, we have also held that an attorney's fee award under the Act need not be strictly \\\"proportionate\\\" to the plaintiff's actual damages, explaining that the legislative purpose of encouraging private claims would be \\\"frustrated\\\" if courts were required to measure an attorney's fee award against the often limited damages at stake in an individual consumer action. Id. \\u00b6 27; see also Vastano v. Killington Valley Real Estate, 2010 VT 12, \\u00b6 9, 187 Vt. 628, 996 A.2d 170 (mem.) (upholding attorney's fee award of nearly $75,000 against realtor who failed to reveal monitoring of well for contamination and was ordered to disgorge $7,875 commission).\\n\\u00b68. Because the CFA serves broad public interests and offers an array of remedies, including restitution and injunctive relief, this and other courts construing similar measures have concluded that a showing of actual monetary loss is generally not a precondition to an award of attorney's fees. See, e.g., Kwon v. Eaton, 2010 VT 73, \\u00b6 16, 188 Vt. 623, 8 A.3d 1043 (mem.) (rejecting claim that tenants were not entitled to attorney's fees under landlord/tenant and consumer fraud acts where their damages were entirely offset by landlords' counterclaims, resulting in net judgment for\\nlandlords); Greene v. Stevens Gas Service, 2004 VT 67, \\u00b6 13, 177 Vt. 90, 858 A.2d 238 (observing that damage action under CFA requires showing of \\\"some cognizable injury caused by the alleged consumer fraud\\\"); Peabody v. P.J.'s Auto Village, Inc., 153 Vt. 55, 58, 569 A.2d 460, 463 (1989) (holding that, where defendant car dealership failed to disclose that used car was \\\"clipped\\\" vehicle, i.e., the front of one car welded to the back of another, plaintiff suffered at least a loss of confidence in its condition and was entitled to damages and attorney's fees despite lack of evidence of mechanical problems or reduction in fair market value); see also Star Fin. Servs., Inc. v. Aastar Mortg. Corp., 89 F.3d 5, 15 (1st Cir. 1996) (construing Massachusetts consumer protection act and Massachusetts decisions to allow attorney's fees \\\"not only when damages were awarded, but also where, as here, the prevailing plaintiff received injunctive relief only\\\"); Hanover Ins. Co. v. Sutton, 705 N.E.2d 279, 295 (Mass. App. Ct. 1999) (affirming attorney's fee award under state consumer protection act where plaintiff obtained only nominal monetary damages but also \\\"equitable relief' in the form of constructive trust and injunction); Tallmadge v. Aurora Chrysler Plymouth, Inc., 605 P.2d 1275, 1278 (Wash. Ct. App. 1979) (although trial court failed to award damages against dealer who fraudulently sold vehicle different from the one advertised, consumer was entitled to attorney's fees under consumer protection act where he was inconvenienced and deprived of the use and enjoyment of his property).\\n\\u00b6 9. The question here, however, is whether plaintiffs may recover attorney's fees standing alone, where a jury has determined that they suffered no injury and were entitled to no relief of any kind, monetary, equitable or otherwise. Even in those jurisdictions like Vermont where an award of attorney's fees has been held to be mandatory, the plaintiff is generally required to have suffered some adverse effect or to have demonstrated some injury of a personal or public nature warranting some sort of relief, even if it is not monetary or measurable in nature. See, e.g., Chapman v. Katz, 862 N.E.2d 735, 749 (Mass. 2007) (observing that, in order to recover attorney's fees under state unfair trade practices act, \\\"the unfair or deceptive conduct must have had some adverse effect on the [plaintiffs], even if it is not quantifiable in dollars\\\" (quotation omitted)). Thus, as the Supreme Judicial Court of Massachusetts held, where a jury found that the plaintiffs \\\"suffered no injury or loss,\\\" there was no basis for an award of attorney's fees despite the jury's finding of an unfair trade practice. Id.; see also Tibbetts v. Sight 'n Sound Appliance Ctrs., Inc., 2003 OK 72, \\u00b6 1, 23, 77 P.3d 1042 (holding that, despite jury verdict that defendants violated consumer protection act, plaintiffs were not entitled to attorney's fee award where jury awarded \\\"zero damages\\\" and plaintiffs otherwise failed to obtain \\\"some judgment or judi cial decree that has changed the relationship between the parties so that defendant is judicially required to do something, i.e., some enforceable judgment\\\"). Without some wrong to right as a predicate to a CFA award of attorney's fees, plaintiffs' theory of recovery and the superior court's award of fees turn on consumer fraud in the abstract, with no actual consumer protection at stake, and risks conversion of the CFA into a lawyer's relief act.\\n\\u00b6 10. This is not to say that an award of attorney's fees is inappropriate where it would otherwise promote the Act's underlying goals. Again, our prior decisions are instructive. In reviewing attorney's fee awards under the CFA, we have looked to a variety of factors identified by the United States Supreme Court in the civil rights context, including most critically \\\"the results obtained in the litigation.\\\" L'Esperance, 2003 VT 43, \\u00b622 (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). As Justice O'Connor explained, this factor is not limited to measuring \\\"[t]he difference between the amount recovered and the damages sought.\\\" Farrar v. Hobby, 506 U.S. 103, 121 (1992) (O'Connor, J., concurring).\\n\\u00b6 11. Indeed, even where no damages or other relief is awarded, or merely nominal damages are awarded, the purpose of a statutory fee-shifting provision may be served where the plaintiff has prevailed on a significant legal issue or accomplished some broader \\\"public purpose\\\" underlying the legislation by exposing, for example, \\\"lawless conduct\\\" or deterring future misconduct. Id. at 121-22; see, e.g., Garner v. Limbocker, 770 S.W.2d 673, 674 (Ark. Ct. App. 1989) (where jury found that plaintiff had established pattern of excessive force by police officers but awarded no damages, trial court did not abuse discretion in awarding attorney's fees based on finding that plaintiff had \\\"succeeded on a significant issue . . . involving] community interest as well as the rights of [plaintiff]\\\"); Simms v. Chaisson, 890 A.2d 548, 557-58 (Conn. 2006) (affirming award of attorney's fees despite award of only nominal damages under Connecticut fair housing law where plaintiffs prevailed on a \\\"significant legal issue\\\" by vindicating their right to live without racial harassment and redressed defendants' \\\"outrageous\\\" misconduct); McGrath v. Toys \\\"R\\\" Us, Inc., 821 N.E.2d 519, 527 (N.Y. 2004) (affirming attorney's fee award despite damage award of only one dollar under New York City human rights law where verdict vindicated substantial rights of historically unrecognized group, and would \\\"educate the public\\\" and \\\"increase awareness\\\" concerning rights of transsexuals).\\n\\u00b6 12. The case at bar fits none of these categories. Plaintiffs claimed that BCK was careless in providing confusing materials relating to the property's boundaries, but their suit exposed no \\\"lawless\\\" or unscrupulous misconduct, much less any broader pattern of socially irresponsible behavior likely to deceive or mislead the consumer. Plaintiffs claimed, and the record at most shows, that BCK committed a mistake that was later corrected and resulted in no harm to plaintiffs. Nothing in the case suggests that the verdict will serve to deter future misconduct, educate consumers or vendors, or promote a more honest and open marketplace. Plaintiffs' suit, in short, yielded no relief to plaintiffs, vindicated no significant legal rights, and advanced no broader public goals.\\n\\u00b6 13. Despite the technical statutory-violation, plaintiffs were ultimately induced to purchase nothing less than, or different from, what they thought that they were purchasing, and the jury verdict \\u2014 finding that they suffered no injury warranting any kind of relief \\u2014 demonstrates that plaintiffs received essentially all that they deserved under the Act. On the singular facts presented, therefore, we conclude that the award of attorney's fees was erroneous. Our holding renders it unnecessary to address either BCK's additional claims of error at trial or plaintiffs' motion to dismiss those claims as untimely.\\nThat portion of the judgment awarding plaintiffs attorney's fees is reversed.\\nMotion for reargument denied February 25, 2011.\\nThe property listing mistakenly advertised the property as consisting of 2.34 acres.\\nIn addition to attorney's fees, plaintiffs sought what they labeled \\\"litigation expenses\\\" for copying, postage, travel, facsimile transmittals, expert expenses and the like, and the trial court awarded a total of $6,025.73 in this category. This amount plus the approved attorney's fees of $48,285 yielded a total award of $54,310.73.\\nWhile the appeal was pending, plaintiffs moved to dismiss the appeal on the ground, among others, that defendants' docketing statement was untimely filed, in violation of a Court order. The filing of a docketing statement is not a jurisdictional prerequisite, and we deny the motion.\\nAwards of \\\"nominal\\\" damages of one dollar are common under the federal civil rights act, 42 U.S.C. \\u00a7 1988, and some state enactments in order to render the plaintiff eligible for attorney's fees as the prevailing party, but as the United States Supreme Court has held, such an award does not require the court to grant attorney's fees where the judgment represents merely a \\\"technical victory\\\" and otherwise provides no substantive relief and vindicates no statutory policy. Farrar, 506 U.S. at 113-14.\\nDefendant sellers have also renewed their claim for attorney's fees and costs under a provision in the purchase and sale agreement entitling the prevailing party to attorney's fees in an action arising out of a \\\"breach of this [c]ontract.\\\" The trial court rejected the claim, noting that plaintiffs' suit was not for breach of contract (indeed sellers performed the contract by closing on the sale) and that plaintiffs had prevailed on their consumer-fraud claim, although they had received no relief as a result. Sellers' summary argument on appeal does not show that the trial court erred in this regard, and we therefore find no basis to disturb its ruling.\\nDefendants have challenged on appeal only the award of attorney's fees. Accordingly, that portion of the judgment for litigation expenses ($6,025.73) and costs ($1,871.80) remains in effect.\"}"

vt/4046675.json

@@ -0,0 +1 @@
+"{\"id\": \"4046675\", \"name\": \"Travia's Inc. and Robert and Jill Mellion v. State of Vermont, Department of Taxes\", \"name_abbreviation\": \"Travia's Inc. v. State\", \"decision_date\": \"2013-08-09\", \"docket_number\": \"No. 12-422\", \"first_page\": \"585\", \"last_page\": \"594\", \"citations\": \"194 Vt. 585\", \"volume\": \"194\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T22:24:19.003773+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Reiber, C.J., Dooley, Skoglund and Burgess, JJ. and Toor, Supr. J., Specially Assigned\", \"parties\": \"Travia\\u2019s Inc. and Robert and Jill Mellion v. State of Vermont, Department of Taxes\", \"head_matter\": \"2013 VT 62\\nTravia\\u2019s Inc. and Robert and Jill Mellion v. State of Vermont, Department of Taxes\\n[86 A.3d 394]\\nNo. 12-422\\nPresent: Reiber, C.J., Dooley, Skoglund and Burgess, JJ. and Toor, Supr. J., Specially Assigned\\nOpinion Filed August 9, 2013\\nMotion for Reargument Denied September 19, 2013\\nErin Miller Heins of Langrock Sperry & Wool, LLP, Burlington, for Plaintiffs-Appellants.\\nWilliam H. Sorrell, Attorney General, and Danforth Cardozo, III, Assistant Attorney General, Montpelier, for DefendantAppellee.\", \"word_count\": \"3250\", \"char_count\": \"20028\", \"text\": \"Skoglund, J.\\n\\u00b6 1. Taxpayers are owners and operators of an S-corporation known as Travia's Inc., a small bar and grill in Hinesburg, Vermont. They appealed the Department of Taxes' (DOT) assessment of meals tax and alcoholic beverage tax for the audit years 2006, 2007, and 2008, and corporate income and personal income tax for the audit years 2005, 2006, and 2007. Following a hearing at the Department, the Commissioner of Taxes affirmed the Department's assessments. Pursuant to 32 V.S.A. \\u00a7 9275, taxpayers appealed the Commissioner's determination to the civil division, which affirmed the assessment against Travia's of additional alcohol, meals, and income tax. Taxpayers now challenge the assessment before this Court. We affirm.\\n\\u00b6 2. As found by the trial court, Travia's Inc., is an S-corporation, so the bulk of its income and losses pass through to its shareholders for reporting on their personal income tax returns. Mr. Mellion owns 100 percent of Travia's shares and asserts that he is the sole operator of the business, preparing and serving all meals and alcohol. Mrs. Mellion, the secretary of the corporation, maintains the books for the business. Travia's has no other employees. In early 2009, DOT initiated an audit of Travia's corporate income tax records for tax years 2005, 2006, 2007, and 2008. An experienced DOT auditor conducted the audit.\\n\\u00b6 3. The auditor discovered several issues that required further investigation. First, Travia's cost-of-goods (COG) to gross receipts ratio was approximately fifty-six percent, an abnormally high percentage, more than double the industry average for the bar and restaurant business. Typically, the COG ratio for restaurants is between twenty-eight and thirty-two percent, and the COG ratio for bars is sixteen to twenty-four percent. According to the Department, a high cost-of-goods ratio sometimes indicates overstated costs or understated income. Also of concern, Travia's listed $500 worth of inventory each year, suggesting that the business had no inventory accounting controls in place.\\n\\u00b6 4. As a result of the preliminary examination, the Department had the auditor conduct an on-site audit of Travia's. Travia's has a single cash register, which produces two types of paper tapes. One is a \\\"running tape,\\\" which records each sale as it is rung in, and the other is a \\\"Z tape,\\\" which can be produced at the end of the day and shows a summary of that day's sales. Travia's Z tapes summarize total sales of liquor including tax' and food not including tax. Mr. Mellion testified that he produces a Z tape showing the daily totals and puts it in an envelope at the end of each day and writes the daily totals of food and alcohol sales on the envelope. Mrs. Mellion then transfers the amounts written on the envelope to a weekly summary of sales, one page per week.\\n\\u00b6 5. The auditor testified that he looked at three running tapes. The running tapes were in large rolls, not dated or labeled, and the ink was too faded to read on the three he examined. He also looked at a sample of seven weekly envelopes and the forty-two Z tapes inside those envelopes. The auditor found that the totals on the Z tapes did not always match the totals recorded on the envelopes. There were handwritten adjustments on the Z tapes where some numbers were crossed out and others written in. Of the forty-two Z tapes examined, fourteen of them showed different totals than the corresponding totals noted on the envelopes. On eight of the fourteen tapes with- discrepancies, the Z tape total and the envelope total differed by multiples of $100. When asked about these discrepancies, Mr. Mellion told the auditor that the cash register had problems throughout the three-year audit period and did not produce accurate Z tapes, that he would put down his recollection of the day's total rather than what the tapes said, and that what he wrote on the envelopes was accurate. He further testified that he ignored the Z tapes and instead wrote the running tape totals on the weekly envelopes. However, of the running tapes for the fourteen dates examined, only four matched what was written on the envelope.\\n\\u00b6 6. Taxpayers met with DOT staff and complained about the initial assessments. They tried to convince the Department to use the running tapes and Z tapes, along with weekly summary sheets. The Department declined to use the records provided, finding that Travia's hand-altered records did not match what Travia's reported on its meals tax returns and that taxpayers could not adequately explain the conflicting information on the running tapes, Z tapes, handwritten alterations, envelopes, and summary sheets. The Department determined that further investigation was necessary.\\n\\u00b6 7. After concluding that the running tapes and the Z tapes were too unreliable to serve as a basis for the audit, the auditor chose to estimate Travia's income using other information and an alternative method to recalculate the assessment. As noted above, Travia's cost-of-goods to gross receipts ratio was approximately fifty-six percent, combining the ratio for food and drink. The average COG ratio for restaurant food is twenty-eight to thirty-two percent and for alcoholic beverages is sixteen to twenty-four percent. Travia's showed a ratio of seventy-two percent for food and forty percent for alcohol. The auditor could find \\\"no logical explanation\\\" for the high ratios and investigated further.\\n\\u00b6 8. Using industry averages of goods sold and drink sizes, the auditor calculated what Travia's COG ratio would be based on the income recalculated for Travia's alcohol purchase records. He obtained actual sales records from Travia's beverage vendors and attempted to reconstruct Travia's income using a routine a\\u00fcdit procedure. He considered the average price of Travia's drinks as stated by taxpayers and the average costs of alcoholic drinks based on a review of Travia's vendor invoices, and calculated a COG ratio for beer, for wine, and for liquor. He used a weighted average of these thr\\u00e9e ratios and determined the COG ratio for all alcohol would be twenty-seven percent. The auditor then applied a food ratio of fifty percent, based on industry ranges and taking into account Mr. Mellion's assertions that he purchased all the food at retail. Combining the twenty-seven percent and the fifty percent gave an overall COG ratio of thirty-eight and one-half percent, which the auditor rounded up in the taxpayer's favor to forty percent. Based on these estimates, the auditor assessed an additional meals tax of $2,673.29, an additional alcohol tax of $11,388.23, and an additional personal income tax for the taxpayers of $7,290.03, plus interest and penalties.\\n\\u00b6 9. At the hearing before the Department, taxpayers did not dispute that they are officers of the Travia's corporation and therefore responsible for Travia's meals and alcoholic beverage taxes. They also agreed that they filed their tax returns based on their register tapes and weekly envelope totals. They further agreed that if there is a valid adjustment to those taxes owed by Travia's, there is a valid corresponding adjustment to their personal income taxes.\\n\\u00b6 10. The Commissioner of Taxes approved the holding of the hearing officer and assessed the taxes as determined by the Department. The total revised assessment was $26,254.30 for alcoholic-beverage tax, $6,186.45 for meals tax, and $20,016.00 for personal income tax. The taxpayers appealed the new assessments.\\n\\u00b6 11. On appeal, taxpayers raise the same issues as presented to the Department. They assert that DOT had no authority to look beyond their business records for a calculation of their tax liabilities, and that even if DOT was authorized to look beyond their business records, DOT's computation is incorrect.\\n\\u00b6 12. Where there is an intermediate level of appeal from an administrative body, this Court reviews the case under the same standard as applied in the intermediate appeal. Tarrant v. Dep't of Taxes, 169 Vt. 189, 195, 733 A.2d 733, 738 (1999). We review the Commissioner's decision independent of the superior court's findings and conclusions. See Devers-Scott v. Office of Prof'l Regulation, 2007 VT 4, \\u00b6 4, 181 Vt. 248, 918 A.2d 230. The Commissioner's findings will not be set aside unless clearly erroneous. Morton Bldgs., Inc. v. Dep't of Taxes, 167 Vt. 371, 374, 705 A.2d 1384, 1386 (1997). It is the taxpayer's burden to show that the assessment is erroneous, In re DeCato Bros., Inc., 149 Vt. 493, 496, 546 A.2d 1354, 1356 (1988), and that showing must be \\\"clear and convincing.\\\" In re Williston Inn Grp., 2008 VT 47, \\u00b6 11, 183 Vt. 621, 949 A.2d 1073 (mem.).\\n\\u00b6 13. Taxpayers claim that the only authority for the Commissioner to' \\\"estimate\\\" taxes is found in 32 V.S.A. \\u00a7 9273(a) and that section applies only when a taxpayer has failed to make a return. However, \\u00a7 9273(b) clearly allows for the Commissioner to \\\"examine[ ]\\\" a return after it is filed and to \\\"make such further audits or investigation as he or she may deem necessary.\\\" Further, it provides that if the Commissioner determines that there is a deficiency with respect to the payment of any tax due under the chapter, \\\"he or she shall assess the taxes and interest due the state.\\\" Id. Where, as here, the source documents used to prepare returns suggest inaccuracies, it follows that the returns filed are not \\\"as . . . required,\\\" and the Commissioner may proceed to make an investigation and estimation of tax, just as if no returns had been filed at all. Id. \\u00a7 9273(a).\\n\\u00b6 14. In Korba v. New York State Tax Commission, 444 N.Y.S.2d 312, 314 (App. Div. 1981), appeal denied, 435 N.E.2d 1099 (N.Y. 1982), the court held that, where restaurant records \\\"were unreliable and inaccurate\\\" the use of \\\"external indices to determine the tax due was . . . appropriate.\\\" That is what occurred in this case. The Commissioner found that the .taxpayers' records were \\\"not just confusing, contradictory, and inexplicably altered, they were incomplete.\\\" The Commissioner's findings on this point are supported by substantial evidence in the record. Mr. Mellion altered the cash register tapes to show lower sales without adequate or logical explanation. While taxpayers argue that the Department could have and should have conducted. its audit from the register's running register tapes showing every individual transaction during the entire audit period, the hearing officer conducted a thorough review of taxpayers' records, including some of the longer running tapes, and found that they did not provide support for the handwritten changes made by the taxpayers and likewise contained discrepancies. The discrepancies found by the Commissioner, with only one exception, lowered the total receipts amount. Eight of the fourteen Z tapes with variances are at or close to $100 increments. Other irregularities were present.\\n\\u00b6 15. Taxpayers also try to support their argument by citing cases from other jurisdictions. The cited cases are inapposite. For example, in Christ Cella, Inc. v. State Tax Commission, 477 N.Y.S.2d 858 (App. Div. 1984), the court held that the taxing authority \\\"may not use such external indices unless it is virtually impossible to verify taxable sales receipts and conduct a complete audit with available records.\\\" Id. at 859 (quotation omitted). And, in In re L.G.J. Restaurant, Inc., 27 B.R. 455, 459 (Bankr. E.D.N.Y. 1983), where the state's tax auditor ignored and made no effort to examine L.G.J.'s cash register tapes, the bankruptcy court held that \\\"where there is no insufficiency of record keeping, the taxing authority's resort to projected tax estimates . . . inherently lacks a rational basis and is per se arbitrary and capricious.\\\" Here, the recordkeeping was significantly muddled and insufficient, and the Commissioner found it impossible to verify the sales receipts presented and to complete an audit based on the available records. It was therefore appropriate for the Commissioner to undertake an investigation and audit to produce an assessment that made sense.\\n\\u00b6 16. Taxpayers also argue that, even if the Department had authority to estimate Travia's income from external sources, its estimate of Travia's income was based on inaccurate information and, therefore, is clearly erroneous and must be overturned. Specifically, they claim the estimation methodology used by DOT required the auditor to input variables such as price and drink size into a formula to determine the amount of income derived from every bottle of liquor, wine, and beer, and that it resulted in a drastic distortion of beverage sales.\\n\\u00b6 17. It is true that neither the auditor nor the hearing officer credited Mr. Mellion's testimony that his average pour is four ounces of liquor and eight ounces of wine, that liquor drink prices averaged $4.00, and that the average price for a glass of wine was $5.00. Taxpayers also dispute the vendor records used as third-party-source data and the assessment of income from meals sales, claiming the hearing officer ignored Mr. Mellion's testimony. The auditor, a field examiner for the Department for seventeen years \\\"with experience as a bar manager, testified that he has never seen a four-ounce drink size and that the average pour of a liquor drink is one and a half ounces. That the hearing officer did not accept Mr. Mellion's testimony (or factor in a \\\"spillage\\\" allowance for beer that Travia's sells only in bottles) does not meet taxpayer's burden to show the findings of fact were clearly erroneous. See Morton, 167 Vt. at 374, 705 A.2d at 1386. The hearing officer heard conflicting testimony and, for the most part, credited the Department's evidence of prices, sizes, and calculations. That is the province of the factfinder. Rock v. Dep't of Taxes, 170 Vt. 1, 11, 742 A.2d 1211, 1219 (1999). We find no basis to disturb the findings.\\n\\u00b6 18. Using the vendor records of Travia's alcohol purchases and allowing Travia's own records of food purchases, the auditor applied a commonly accepted method of reconstructing Travia's gross receipts, and from that he computed Travia's meals and rooms tax and taxpayers' income tax liability. According to the Commissioner, this method of reconstructing Travia's gross receipts is commonly accepted and is used routinely by the Internal Revenue. Service. See, e.g., Cebollero v. Comm'r of Internal Revenue, 967 F.2d 986 (4th Cir. 1992); Webb v. Comm'r of Internal Revenue, 25 T.C.M. (CCH) 454 (1966). There was no evidence to the contrary. We accord substantial deference to matters within the agency's area of expertise, and absent a clear and convincing showing to the contrary, a methodology chosen through that expertise is presumed correct, valid and reasonable. Town of Killington v. Dep't of Taxes, 2003 VT 88, \\u00b6 5, 176 Vt. 70, 838 A.2d 91. Taxpayers have not shown by clear and convincing evidence that the method was arbitrary or invalid.\\n\\u00b6 19. Taxpayers had a duty to maintain reliable records. Vermont's meals and alcoholic beverage taxes are remitted to the State through a self-reporting system. The system relies on operators to calculate and collect the proper amount of tax from their customers and to remit all tax collected to the state. 32 V.S.A. \\u00a7 9241 (imposition of tax); id. \\u00a7 9242 (collection of tax); id. \\u00a7 9243 (filing returns and payment). Taxpayers are required to keep \\\"the books of account ordinarily maintained by the average prudent businessman\\\" under the Vermont Meals and Rooms Tax Regulations \\u00a7 1.9203-l(a), 1 Code of Vt. Rules 10 060 023-7. Courts have routinely recognized the obligation of taxpayers to maintain reliable records that are adequate to enable a tax auditor to make a reasonable determination of the amount of tax due. Hogg v. United States, 428 F.2d 274, 282 (6th Cir. 1970). Taxpayers failed to meet these obligations. The source material used to prepare Travia's meals and alcohol tax returns was unreliable and did not satisfy the regulation. The tapes were manually altered by taxpayers who claimed that the cash register was broken for the entire three-year audit period. See Alexandre v. Comm'r of Revenue Servs., 22 A.3d 518, 527-28 (Conn. 2011) (holding that Z tapes which lack detail of individual transactions do not satisfy a bar/restaurant's record keeping responsibilities for tax audit purposes); Rodriguez v. Tax Appeals Tribunal of State, 918 N.Y.S.2d 625, 627 (App. Div. 2011) (concluding that in absence of cash register tapes showing transactions, testimony that owner \\\"rou tinely tracked the daily sales activities of the business in his head\\\" insufficient (quotation and alteration omitted)).\\n\\u00b6 20. The returns as filed by Travia's may have been consistent with their source documents (the altered Z tapes), but that neither made them accurate nor reliable, because the Z tapes were manually altered and could not be corroborated. Crabtree v. Comm'r of Internal Revenue, 78 T.C.M. (CCH) 1232 (1999) (discussing a bar business where income \\\"is mostly cash and income is easily hidden from normal view,\\\" if books and records are not adequate, the taxing authority may use its own reasonable method of reconstruction and need not accept taxpayer records simply \\\"because its records were consistent with the information reported on its tax returns\\\"). The hearing officer found that \\\"Mr. Mellion's explanations of his handwritten alternation of the records were deficient.\\\" She found that discrepancies ranged \\\"from less than 1 percent to more than 500 percent on various days.\\\" Taxpayers offer contradictory and inconsistent testimony concerning their operational and bookkeeping practices.\\n\\u00b6 21. When a taxpayer's records are not maintained so as to allow the determination of the correct tax liability, as was the case here, then the Commissioner must conduct an examination beyond the books and records. To hold otherwise would eviscerate the ability to make any meaningful or accurate assessment and render the language of both 32 Y.S.A. \\u00a7 9243 and \\u00a7 9273 ineffective or meaningless, a result we avoid. Chittenden v. Waterbury Ctr. Cmty. Church, Inc., 168 Vt. 478, 491, 726 A.2d 20, 29 (1998). And, when a taxpayer's records are incomplete or faulty, the taxing authority necessarily must estimate liability. The failure of the taxpayers to provide records sufficient to verify their tax as reported effectively forced the Department's auditor to go outside Travia's questionable records to estimate the amount of tax due.\\n\\u00b6 22. Taxpayers here have not met their burden of demonstrating the assessments are incorrect, and we uphold the Commissioner's determination.\\nAffirmed.\\nBecause the Department did not have the 2005 vendor records for Travia's purchases, it used an average of the COG from the years for which the Department had vendor records to come up with an estimated COG for the 2005 income tax calculation.\\n\\\"If any operator shall fail to make a return as herein required, the commissioner may make an estimate of the tax liability of the operator from any information he or she may obtain, and according to such estimate . . . , assess the taxes, interest and penalty due the state from such person, give notice of such assessment to the person and make demand upon him or her for payment.\\\" 32 V.S.A. \\u00a7 9273(a).\\nThere was a further hurdle to understanding Travia's record of income for the sale of its drinks. Travia's reportedly sold its alcoholic beverages with the tax included in the price, but posted no notice to that effect on the premises as required.\"}"

vt/4417123.json

@@ -0,0 +1 @@
+"{\"id\": \"4417123\", \"name\": \"John Stimpson v. Jacob A. Cummings\", \"name_abbreviation\": \"Stimpson v. Cummings\", \"decision_date\": \"1843-02\", \"docket_number\": \"\", \"first_page\": \"787\", \"last_page\": \"788\", \"citations\": \"15 Vt. 787\", \"volume\": \"15\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T17:27:29.990568+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John Stimpson v. Jacob A. Cummings.\", \"head_matter\": \"John Stimpson v. Jacob A. Cummings.\\nExceptions may be entered in the supreme court, although a term of that court may have intervened after the taking of the exceptions, in a case where a motion for a new trial is pending, until after such intervening term.\\nThe verdict in this case, in the county court, was found November term, 1840, but the case was not entered in this .court until February term, 1842.\\nThe party, in whose favor the judgment below was rendered, now moved to dismiss the exceptions, on the ground that the case should have been entered in this court at the next term after the exceptions were taken in the county court. It appeared, by referring to the docket entries, that there had been pending in the county court a motion for a new trial until the May term, 1841.\", \"word_count\": \"181\", \"char_count\": \"998\", \"text\": \"By the Court.\\nThis was a sufficient reason for not bringing the exceptions into this court. They could not have been entertained here, until the motion for a new trial had been disposed of in the county court.\"}"

vt/4419711.json

@@ -0,0 +1 @@
+"{\"id\": \"4419711\", \"name\": \"Stephen Morse, Allen Vail and Micah Vail v. Francis Slason, Albert Langdon and William C. Denison\", \"name_abbreviation\": \"Morse v. Slason\", \"decision_date\": \"1844-01\", \"docket_number\": \"\", \"first_page\": \"319\", \"last_page\": \"325\", \"citations\": \"16 Vt. 319\", \"volume\": \"16\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:42:56.435685+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Stephen Morse, Allen Vail and Micah Vail v. Francis Slason, Albert Langdon and William C. Denison.\", \"head_matter\": \"Stephen Morse, Allen Vail and Micah Vail v. Francis Slason, Albert Langdon and William C. Denison.\\nIn Chancery.\\n[Same case, 13 Vt. 296.]\\nWhere a creditor\\u2019s, bill was brought to compel the application of certain property, in the hands of the defendants, as part of the estate of an intestate debtor for the payment of debts generally, and the defendants, by their answers, claimed that the property was transferred to them by the debtor in his life time in .part payment .of certain claims which they held against him, and that, in procuring their claims allowed by the commissioners upon said estate, they had credited the said property and allowed for the same at a certain price, and the case was referred to a master, under a mandate from the chancellor that he ascertain and report the actual cash value of the property, it was held that the master was justified in treating the answers as evidence merely, and not conclusive as to the true value, and in receiving and weighing other evidence in ascertaining such value.\\nSo, as to the quantity of the property, it was held that the answers were evidence of the strongest character against the defendants, but still not conclusive.\\nThe defendants, in such case, become accounting parties, and their evidence may properly be received by the master in reference to the true value, quantity and condition of the property.\\nWhere the object of the bill was merely to have the property brought into a course of administration as the estate of the debtor, and the report did not show that the defendants had disposed of the property and received payment therefor, it was hold that the defendants could not be properly charged with interest upon the value of such property.\\nAnd, where two of the defendants were administrators upon the estate of the debtor, and the third defendant was brought into the suit by reason of his alledged claim upon the property, and the court of chancery vacated his claim, and ordered the property to be brought into the administration, as part of the estate, by the administrators, it was held no objection to the decree, that by it the third defendant was dismissed from the suit without cost, \\u2014the whole object of the bill being attained by such, course.\\nWhere a draft for money came into the hands of the defendants at the same time and for the same purpose as the other property, and they had obtained the money upon it, it was held no objection to the master\\u2019s proceedings, that he charged the defendants with the sum so received, notwithstanding the mandate from the chancellor to him, in terms, required him to take an account of the \\u201cpersonal property \\u201d which came into the hands of the defendants, without any further descriptive words.\\nAppeal from the court of chancery. The bill, in this case, was brought by the orators in behalf of themselves and the other creditors of Hoit Guernsey, deceased, alledging, among other things, that a large amount of the personal property of the said Guernsey had come into the possession of the defendants, Slason and Langdon, at or about the time of his decease, and that the defendants, Slason and Denison, were administrators upon the. estate of the said Guernsey, and that said property had never been inventoried by the administrators, and praying that it might be decreed to be assets in their hands for the payment of the debts of the said deceased.\\n! The case was before the supreme court at their February term, 1841, on an appeal from a decree of the court of chancery dismissing the orators\\u2019 bill. That court then reversed the decree, and held that Slason must be required to charge himself with the value of the property, and remanded the case to the court of chancery with directions to refer it to a master to ascertain that value. The decision then given and the allegations and statements of the bill and answers are fully reported in Vol. 13 of the Vermont Reports, page 296.\\nThe defendants, Slason and Langdon, in their answers, admitted that they had received the property in question, and also a certain draft, drawn by Guernsey on Arnold, Leggett & Lapham, for $1839,97, \\u2014 the proceeds of which they had received, \\u2014 and' claimed that the property was, by the said Guernsey, in his lifetime, sold and delivered to them, to be applied as payment for certain liabilities to a large amount that they were under for him ; and that the draft was delivered to them at the same time, and for the same purpose; and that, when those liabilities were presented by them for allowance by the commissioners on the estate of Guernsey, they made application of the property so received by them, at prices which they specially set forth, amounting in the whole to $16,171,06, and which they averred were large prices for the property. The defendant, Denison had received no portion of the property, and was brought into the suit as one of the administrators merely.\\nThe court of chancery, in pursuance of the directions of the supreme court, referred the case to a master in chancery, with instructions to \\u201ctake an account of all the personal property which came to the hands of the said Slason and Langdon by virtue of the contract set forth in their several answers, as being purchased of said Guernsey in his lifetime, the amount of said account to be stated at the fair cash value of said property at the time it came to the possession of the said defendants, Slason and Langdon.\\u201d\\nThe master reported, that, on the hearing before him, the defendant Slason was offered as a witness on the part of the defendants, to show the quality and value of the property in question ; that the orators objected to his admission, both as being a party to the suit, and on the ground that the defendants had, in their answers, set forth the value which they allowed for the property, in applying the same upon their claims against the estate of Guernsey, and that their answers were conclusive upon them in this respect; that thp objection was overruled by the master, and Slason admitted to testify; and that, if, in the opinion of the court, the 'answers were conclusive upon the defendants, as claimed by the orators, then the sum to be accounted for was, as stated therein, $16,171,06; but that, if the answers were not thus conclusive upon them, and the value of the property was open to inquiry and proof, he found the value of the property to be $14,769,57. The auditor further reported, that, in making said sum of $14,759,57, he included the draft drawn on Arnold, Leggett Sf Lapham, although the defendants objected thereto.\\nExceptions were taken by the orators to the master\\u2019s report, but the court of chancery accepted it, and decreed that the value of the property received by the said Slason and Langdon be taken to be, as found by the report, $14,759,57; that they be allowed to retain an amount thereof sufficient to pay such a proportion of the amount which they had credited the estate of said Guernsey for the same, in the allowance of their claims before the commissoners upon said estate, as would make them equal to other creditors on the final settlement of the estate; and that, for the balance of the said sum, the said Slason credit the estate of the said Guernsey in his administration account, to be rendered before the probate court, as so much money belonging to the estate, received by him personally ; and not to be entered in the joint administration account of the said Slason and Denison; and that the said Langdon and Denison be dismissed without costs.\\nAnd now the case came on again for a hearing on objections to the proceedings and decisions of the master, and the decree of the court of chancery.\\nJ. Clark and 8. II.. <\\u00a1p E. F. Hodges for orators,\\nI. The master\\u2019s report requires correction in several particulars.\\n1. He has charged the defendant Slason with a less quantity of property, than it was admitted by the answer had been received.\\n2. He has found the value of the property to be less than the answer admitted it was. The testimony, upon which this part of the report is founded, should not have been heard. The defendants were conclusively bound by the admissions contained in their answers, which were made under the solemnity of an oath, and with ample opportunity for mature consideration. The practice of allowing defendants to modify their answers, after discovering where their case is defective, is so obviously dangerous, that it is not permitted in practice. This attempt is precisely similar in character, and equally objectionable. The testimony, moreover, operated as a surprise upon the orators, who were warranted in relying upon the answers, and whose vigilance was thereby lulled. Gresley\\u2019s Eq. Ev. 165, 169. Ib. 10, citing E. India Co. v. Keightly, 4 Mad. 16, and Mobe?-ts v. Robertsr Dick. 573. Sheffield v. Sucks (Dutch, of,) 1 Atk. 628.\\nII. The decree ought also to have directed that the defendant Slason should charge himself, in his administration account, with interest upon the property received, as well as with the principal.\\nIII. The defendant Langdon should have been made liable under the decree for the property received by him and Slason.\\nIV. The defendants are properly charged with the proceeds of the-draft on Arnold, Leggett and Lapham. It carnes clearly within the terms of the decision of the supreme court reversing the original decree in this case ; and the question of charging it was peculiarly within the province of the master.\\nE. L. Ormsbce for defendants.\\n1. The master was correct in admitting testimony to show what was the real cash value of the articles to be accounted for by the defendants under the decree. The answers do not profess to contain the value in the opinion of the defendants. They merely relate the prices allowed in fixing the sums to be credited on their claims. In fixing these prices the defendants had every inducement, not merely to fix a price as large as the actual cash value, but one so large as to be beyond question, and satisfactory to all persons interested. On the other hand, as their claims were much larger than the amount of personal property they received, they had no motive, or interest, to scrutinize closely the price.\\n2. The defendants, under the decretal order of the court, must be considered as accounting parties, and the defendant Slason was properly examined before the master.\\n3. The master erred in taking into the account the cash credited as received of Arnold, Leggett and Lapham. The case was referred to him to take an account of all the \\u201cpersonal property \\u201d which the defendants claimed to have purchased of Guernsey in his life time. Nothing appears to show but what this draft may have been drawn in pursuance of an entirely distinct contract from the one disclosed in the answers, \\u2014 and nothing could be expected to appear, for the matter was not inquired after in the bill. It is merely mentioned in the answers, in setting out the credits which they allowed in presenting their claims before the commissioners.\", \"word_count\": \"2727\", \"char_count\": \"15860\", \"text\": \"The opinion of the court was delivered by\\nRoyce, J.\\nMost of the questions presented arise on exceptions to the master's report, which were overruled by the chancellor. The tw'o first exceptions proceed upon the ground that the defendants were bound to account for the property in question, at the respective prices stated in their answers ; and hence that the master should have taken the answers as conclusive evidence of the value. But the answers do not directly alledge the value of any of the articles ; it is only stated that they were allowed, at certain prices, to the estate of Guernsey. Those prices are not even stated to have been fixed by any contract. And, as the mandate of this court had directed a reference, to ascertain the actual cash value of the prop erty, we think the answers were properly treated by the master as evidence merely, and not as being conclusive of the true value. Other evidence on the subject was therefore admissible, and the testimony of the defendant Slason was correctly received, as that of an accounting party.\\nIt was next objected that no interest was allowed upon the value of the property. This objection would seem to be answered by stating the scope and object of the orators' bill. It sought to vacate the pretended conveyance from Guernsey to the defendants, and to have the property brought into a coarse of administration as the estate of Guernsey, for the benefit of his general creditors. That object is effected by holding the defendant Slason, one of the administrators, to account for it, in the court of probate, at its cash value. This is all, and even more than could well have been expected, had this property been originally inventoried as part of the estate. Besides, the report does not show a disposition of the property by the defendants, and the receipt of payment for it. And, in the absence of such showing, we cannot treat the original transaction as a sale by Guernsey, for the purpose of putting the value upon interest, and not as a sale for the purpose of transferring the property.\\nAnother exception was founded on certain alledged errors of the master in computing the quantity, and consequent value, of various portions of the property. This exception also assumes the conclusiveness of the answers. And it is clear that, in relation to numbers and quantities, the answers should be regarded as evidence of the strongest character against the defendants. But the master, being required to ascertain and report the truth, was still at liberty, as we think, to treat the answers as^evidence merely, and not as irrefragable proof. Mistakes in the answers might therefore be shown, but only by evidence yet more decisive than the defendants' admissions on oath.\\nThe fifth and last exception to the report was rendered unimportant by the decision of the chancellor, since the larger sum reported was not taken as the basis of the decree.\\nThe dismissal of the defendant Langdon is likewise urged as an error in the decree. In considering this objection, the object of the bill is to be borne in mind, as also the fact that Langdon was not an administrator upon the estate of Guernsey. Whenever the property in dispute should be transferred to the administrators, to be proceeded with as part of that estate, the purpose of the bill, so far as this defendant was concerned, would be accomplished. But the decision of this court has already dissolved the title of Langdon to the property, and the Subsequent decree of the chancellor has directed it to be carried into the estate of Guernsey by Siason, the administrator. Langdon is, therefore, apparently discharged from all further connection with the subject matter of the suit. This is obviously true, unless some coercion upon him should be needed, to enable.Siason to obey the decree. And, as no such necessity appears, we consider that Langdon was properly dismissed.\\nAn objection is raised by the defendants, because the draft on Leggett and others was included in the report. That draft was not specially mentioned in the bill, but was mentioned in the answers and we think it was fairly embraced within the mandate from this court. The term \\\"personal property\\\" is sufficiently comprehensive to include it. And it seems to have been created and passed into the hands of the defendants at the same time, and with the same general purpose and understanding, as the other personal property. Had it been drawn in favor of some creditor of Guernsey, to whom the defendants were liable as sureties, it might, perhaps, have been distinguished from the other property, and treated as a payment made by Guernsey to such creditor; but being drawn in favor of one of the defendants, and having, like the other property, entered into their account with Guernsey, it was rightfully included in the report and decree. Decree of the chancellor affirmed.\"}"

vt/4422412.json

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+"{\"id\": \"4422412\", \"name\": \"Town of Lyndon v. Nathaniel Cook\", \"name_abbreviation\": \"Town of Lyndon v. Cook\", \"decision_date\": \"1846-03\", \"docket_number\": \"\", \"first_page\": \"35\", \"last_page\": \"36\", \"citations\": \"19 Vt. 35\", \"volume\": \"19\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:47:18.131460+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Town of Lyndon v. Nathaniel Cook.\", \"head_matter\": \"Town of Lyndon v. Nathaniel Cook.\\nWhere, in an action of tort against several defendants, the plaintiff, on trial, voluntarily entered judgment in favor of one of the defendants and then called that defendant as a witness, and he testified, and a-verdict was returned in favor of the other defendants, and thereupon the plaintiff entered a review of the case as to all the defendants, and, at the next term, the defendant, in whose favor judgment was voluntarily entered, moved to set aside the review as to himself, it was held, that there was no error in the county court, in overruling the motion.\\nIn this case, which was originally commenced against Cook and several other defendants, Cook filed a motion in the county court, alleging that at the preceding term of the court the plaintiffs voluntarily directed judgment to be entered in his favor and then called him as a witness against the other defendants, that he testified, and a verdict was rendered in favor of the other defendants, and thaf the plaintiffs then entered a review of the case as to all the defendants,\\u2014 and moving that the court should order his name stricken from the docket and allow him his just costs.\\nThe county court, \\u2014 Redfield, J., presiding, \\u2014 overruled the motion, and the trial of the case proceeded, and a verdict was rendered in favor of the other defendants, and against Cook. Exceptions by Cook. '\\nC. Davis for defendant'.\\nT. Bartlett for plaintiffs.\", \"word_count\": \"443\", \"char_count\": \"2617\", \"text\": \"The opinion of the court was delivered by\\nRoyce, J.\\nThe case does not find, whether the facts set forth in the motion were true; and hence we find some difficulty in treating them as facts. But, regarding them as such, we do not perceive that the decision of the county court, in denying the motion, can be \\u00a1pronounced .erroneous. Had the question been brought here, whether this defendant was legally required to testify for the plaintiffs on \\u00a1the first trial, upon a separate judgment being entered for him, without any waiver, by the plaintiffs, of their right to review as to him, it would doubtless have received a different consideration. But \\u2022without such waiver, or something on the record, showing that judgment to have been final, the cause was equally reyiewable against this defendant, as against .the others.\\nAssuming, then, that the motion truly sets forth the proceedings at the first trial, we can only say, it presents a case of irregularity, and perhaps injustice, in regard to this defendant; \\u2014 but the irregularity, being previous to the review, and not excepted to.at the time, is beyond the correction of this court.-\\nJudgment of county court affirmed.\"}"

vt/4422576.json

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+"{\"id\": \"4422576\", \"name\": \"Daniel K. Batchelder v. Silas Warren\", \"name_abbreviation\": \"Batchelder v. Warren\", \"decision_date\": \"1847-03\", \"docket_number\": \"\", \"first_page\": \"371\", \"last_page\": \"378\", \"citations\": \"19 Vt. 371\", \"volume\": \"19\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:47:18.131460+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Daniel K. Batchelder v. Silas Warren.\", \"head_matter\": \"Daniel K. Batchelder v. Silas Warren.\\nA. delivered to B. certain property, consisting of stock for clock making, watches, watch materials, jewelry, &-c., under-an agreement in writing, by the terms of which it was stipulated, that B. should manufacture, repair and put in order the property, and that he might sell it, or exchange it for certain other descriptions of property specified, and that A. would take back all the property if requested after three years from the date of the contract, and before, if the parties could agree, or that, if A. should request, the whole property should be his at all times, and that, if B. should exchange the property for any description of property not authorized by the agreement, or should use any of the property, he should charge such property to himself and become responsible to pay for the same; and B. expressly agreed, that he would manufacture, repair and dispose of the property, as stipulated, and that, \\u201c having received pay for so doing, all the profit\\u201d should belong, together with the property, to A.; and it appeared, that B. received property under the contract, and that he was workingand trading with the same, and that, while he was so doing, the property was attached by the defendant, as belonging to B., at the suit of a creditor of B.: And it was held, that A. had not so parted with his right to the immediate possession of the property, as to preclude him from sustaining an action of trover against the defendant- therefor.\\nTrover for a quantity of jewelry and other property. Plea, the general issue, with notice that the defendant, as deputy sheriff, on the fifth day of October, 1841, took the property in question, as belonging to John A. Batch elder, by virtue of writs of. attachment against him. Trial by jury, March Term, 1845, \\u2014 Hebard, J., presiding.\\nOn trial the plaintiff1 gave in evidence an agreement in writing between himself and John A. Batchelder, which was in these words;\\nArticles of agreement made and concluded this twenty-ninth day of September in the year of our Lord one thousand eight hundred and forty, between Daniel K. Batchelder of Boston, Mass., of the one part, and John A. Batchelder of Ludlow, Vt., of the other part.\\nThe said Daniel K. Batchelder for the consideration hereinafter mentioned hath agreed, and doth hereby covenant promise and agree, that he will place certain articles of value of his property in the possession of the said John A. Batchelder, consisting in stock for clock making, watches and watch materials and other articles mentioned in this book, the stock for clocks to be manufactured, and the other articles to be repaired, put in order, sold, or exchanged, for the following merchandize, viz., harnesses, fire arms, watches, jewelry, vehicles of any description and watch materials, or stock for clocks, or silver ware, and real estate, all of which he will take back if requested after three years from this date, and before, if parties can agree, or if the said D. K. Batchelder shall request, it shall be his at all times either the articles delivered or the property for which such articles may be exchanged. And the said John A, Batchelder in consideration thereof hath agreed, and doth hereby \\u25a0covenant promise and agree, to take into his possession such arti\\u25a0cles of the property of the said D. K. Batchelder as the said D. K. shall see fit to place in his possession to manufacture, repair, sell, .exchange, or return, and having received pay for so doing all the profit is to belong together with the property to the said D. K. Batchelder and at the expense of John A. Batchelder, and if the said John A. Batchelder shall exchange any of this property for any other merchandize or shall make use of any of the articles above mentioned he shall charge them against himself and become responsible to pay the money, otherwise it shall remain the said D. K. Batchelder\\u2019s the same of which has the privilege of sending other property at any time he shall see fit, but all must be recorded in this book with the price to each article and whether it is to be disposed of repaired and returned. D. K. Batchelder,\\nJohn A. Batchelder.\\nThere was annexed to the writing an invoice of the property delivered to John A. Batchelder. The plaintiff also gave evidence tending to prove, that John A. Batchelder received, under the contract, the property so invoiced, and that he was in possession of part of the same goods, named in the plaintiff\\u2019s declaration and taken by the defendant from John A. Batchelder, \\u2014 the residue of the goods so received having been sold or exchanged by John A. Batchelder in pursuance of the contract, \\u2014 and that prior to and at the time of the defendant\\u2019s attachment John A. Batchelder was working and trading with the property, thus in his possession, according to the terms of the contract.\\nThis was all the evidence introduced by the plaintiff in reference to his right to the possession of the property, except testimony relating to a certain book named in his declaration, in reference to which no decision was made by the supreme court, and therefore the evidence need not be detailed here.\\nThe counsel for the defendant insisted, upon this evidence, that, by the contract, the plaintiff parted with his right to the possession of the property for the term of three years, and that, that term not having expired at the commencement of this suit, the plaintiff was not entitled to sustain the action of trover; and the court so decided and directed a verdict for the defendant. Exceptions by plaintiff.\\n.Richardson & Nicholson for plaintiff.\\nIn the first place, two things are to be observed; \\u2014 1. That, as there was no question of fraud made or submitted to the jury, none is now to be presumed ; but on the contrary every thing is to be taken in good faith. 2. That it is not necessary now to inquire, whether this action could be sustained for all the converted articles ; for if it lies for any of them, the verdict must be set aside and anew trial granted.\\nIt appears by the' case, that a portion of the articles attached, and which had been delivered by the plaintiff to John A. Batchelder, were in the hands of the latter unaltered, and held by him, under the written contract, at the time of the attachment. The plaintiff\\u2019s original title to them is undisputed; and of this he could be divested only by gift or sale. Of a gift there is no pretence; nor does the writing furnish evidence that a sale was contemplated, except in two specified cases, viz : When John A. should personally use any of the articles intrusted to him, or should exchange them for other merchandize than such as he was particularly restricted to by the terms of the writing; neither of which contingencies appear to have happened.\\nBut it is said, that the plaintiff had parted with the right of possession for a limited time, which had not expired; and that this is to be determined from the writing, which, though very inartificially drawn, it is contended on the part of the plaintiff is merely a bailment for hire, subject to be determined at the will of the plaintiff, and in the meantime constituting John A. the agent, or factor, of the plaintiff for certain purposes, and giving him no farther interest therein, than merely the compensation, to which he would be entitled for doing the business. It is true, that there are some expressions in the writing, which, taken alone, might give it a different aspect; but the whole must be considered together, and so as to give it the most full and entire effect.\\nBut the defendant contends, that John A. was entitled to hold the property, even against the plaintiff himself, at least for three years from the date of the instrument. The plaintiff does not so understand it; but that John A. was not to be at liberty to throw up the agency and return the property upon the plaintiff within that period, unless both parties should agree thereto; but it was expressly stipulated, that, if the plaintiff requested, it should be Ms at all times; which can only mean, that it should be his wholly, absolutely, and free from any claim of possession to it on the part of John A.; for otherwise a request for what was confessedly his own would be insensible.\\nIf this view be correct, it does not differ from an ordinary case of bailment of property, to be returned on demand; and it can scarcely be contended, that trover does not lie in favor of such bailors against any third person, who abstracts the property from the bailee and converts it to his own use, \\u2014 the general ownership, in such cases, drawing to it the legal possession; See Saund. R. 47, note; Dewell v. Moxon et al., 1 Taunt. 391; Stephens N. P. 2675, Note 52; Story\\u2019on Bailments, \\u00a7 93 ; Story on Agency, \\u00a7 438; and it is to be observed, that the case of Bromley v. Coxwell, 2 B. & P. 438, does not militate against it, being between bailor and bailee, and no conversion proved.\\nNor is it an objection, that the bailee might have a special property and be able to sustain trover for the same article; for \\u201c both the person in whom the general property is, and the person in whom the special property is, may maintain an action of trover for the conversion thereof by a stranger,\\u201d \\u2014 6 Bacon\\u2019s Ab., Trover, 686, \\u2014 and may proceed, until one or the other has obtained a judgment. Id. Story on Bailments, \\u00a7 94.\\nMoreover, it is noticeable, that the leading case on the other side, Gordon v. Harper, 7 T. R. 9, supposes a residuum of interest in the bailee during the remainder of the term, which could in some, however small, degree be made available to the defendant, or the purchaser, \\u2014 such as the continued use of the furniture, in that case, during the remainder of the term for which it was hired: and so of the piano forte, in the case of Bain v. Whittaker, 21 E. C. L. 390. But what beneficial interest could be sold here % Would the purchaser have the right, in lieu of his debtor, of selling and exchanging for the benefit of the plaintiffs\\nP. T. Washburn and Tracy Converse for defendant.\\n1. The plaintiff had parted with his right to the possession of the property for a definite term, which had not expired at the time this action was commenced; and no steps had been taken by him to determine the bailment, or alter its conditions. In the written contract, after specifying the nature of the property, and that John A.- was to manufacture, repair, and put it in order, there follows tliis clause, \\u2014 \\u201cAll which he (plaintiff) will take back, if requested) \\u2018 after three years from this date, and before, if parties can agree, \\u2018 or, if the said D. K. Batchelder (plaintiff) shall request, it shall \\u2018be his at all times,\\u201d &c. Were this all, it would be conclusive for the defendant; for the making the request, mentioned in both these clauses, is a condition pi-ecedent to the right of the plaintiff to take back the property, or consider it \\u201c his at all times.\\u201d But a succeeding clause shows a farther condition, attached to the right of the plaintiff to resume the possession, and puts the case beyond all doubt. John A. Batchelder covenants to receive the property, and manufacture, repair, & c., the same, \\u201cand, having received pay \\u2018for so doing, all the profit is to belong, together with the property,\\u201d to the plaintiff. The bill of exceptions shows, that John A. did receive the property, and that he exchanged some of it, and that, at the time of the attachment by defendant, he \\u201cwas working and trading with the property,\\u201d \\u201c according to the terms of said contract.\\u201d Then a right to compensation for the labor, thus performed under the contract, had accrued to him, and, by the terms of the condition above recited, the plaintiff could not resume the possession, without first making payment therefor. The case shows, that no evidence was given by the plaintiff, that such payment had ever been made. In Soper v. Sumner et al., 5 Vt. 274, the property sued for had been leased by the plaintiff to Clark, as whose it was attached, the plaintiff reserving the right to determine the bailment, if he became dissatisfied, &c.; and there was no evidence, that, \\u201c at the time of the attachment, he had become dissatisfied.\\u201d The court held, that the plaintiff could not sustain trespass against the attaching officer for the property; and Williams, Ch. J., says, \\u2014 \\u201cIt may be true, that he (plaintiff) had a right to put an end to the contract and resume the possession; but until he exercised this right, he could have no claim to the possession, or to any action for an injury to the possession.\\u201d The case of Gordon v. Harper, 7 T. R. 9, shows, that, in this respect, there is no distinction between the actions of trespass and trover, and that, under such circumstances, neither action can be sustained. And the case of Walker v. McNaughton, 16 Vt. 388, is directly in point.\\nThis was not a conditional sale of the property to John A. Batch-elder, and therefore the case of Bigelow v. Huntley, 8 Vt. 151, is not applicable. The first position, taken by the court in that case, was undoubtedly well founded; but the second position is directly opposed to the case of Soper v. Sumner et at, ub. sup., and has been distinctly superseded in Swift v. Mosely et at, 10 Yt. 208, and in Grant v. King et at, 14 Vt. 367, \\u2014 in both which cases it was held, that the act of a stranger would not entitle the bailor to consider the bailment as determined, \\u2014 and is directly opposed by the case of Fairbanks v. Phelps, 22 Pick. 535, and Wheeler v. Train, 3 Pick. 255.\", \"word_count\": \"3110\", \"char_count\": \"17592\", \"text\": \"The opinion of the court was delivered by\\nKellogg, J.\\nThe only question, presented for the consideration of this court, arises upon the decision of the county court in relation to the plaintiff's right to the possession of the property. If it be true, as is assumed by the court below, that, by force of the contract, the plaintiff had parted with his right to the possession of the property for a term, which had not expired at the commencement of the plaintiff's suit, it is very manifest, that this suit cannot be maintained. For it is well settled law, that, to maintain the action of trover, which is founded upon property and possession, the plaintiff must have, at the time of the taking and conversion, either the actual possession, or the right to immediate possession. Now, whether the decision of the court below can be sustained must depend upon the construction of the contract between the plaintiff and John A. Batchelder.\\nBy the terms of that contract it is very obvious, that the articles deposited by the plaintiff with John A. Batchelder, and such as he might receive in exchange, were at all times to be and remain the property of the plaintiff. By the terms of the contract it is stipulated, that the property might remain in the custody of John A. Batchelder for the period of three years, the plaintiff, however, reserving to himself the right, at all times, of putting an end to the bailment. The words of the contract, after the enumeration of the property bailed to John A. Batchelder, are \\\" All of which he (the plaintiff) will take back, if requested, after three years, and before, if parties can agree, or if the said D. K. Batchelder shall request.\\\" From these expressions it would seem to be quite obvious, that, while John \\u00c1. Batchelder could not compel the plaintiff to take back the property and put an end to the bailment before the expiration of the three years, yet, if the parties should agree, or if the plaintiff should desire it, he could at any and all times, upon his own mere will and pleasure, resume the actual custody and possession of the property.\\nWe have been referred to the case of Soper v. Sumner, 5 Vt. 274, as decisive of the case at bar j but we think that case clearly distinguishable from the present. In the case cited,, by the terms of the contract, Soper had a right, if at any time he \\\"should became dissatisfied loith the manner of keeping or using the oxen, to take them back.\\\" This was not an absolute and unqualified authority to Soper, to take back the property at his mere pleasure; but it was only in the event of his becoming dissatisfied with the manner of keeping and using the oxen, He could not claim it as a right, unless his dissatisfaction was founded upon good and justifiable cause. No such restriction is imposed upon the plaintiff by the contract in the case at bar. He had a right to put an end to the bailment at pleasure, and consequently was entitled to immediate possession of the property.\\nThe case of Putnam v. Wyley, 8 Johns. 432, is an authority that fully sustains this position. The court say, that the plaintiff, at the time of the alleged taking of the property, \\\" must have such aright, as to be entitled to reduce the goods to actual' possession when he pleases.\\\" The doctrine of the case last cited is believed to be well sustained and conceded to be sound law, . Indeed, we are not aware, that it has ever been doubted, but what the owner might maintain trover for the taking and conversion of the property, provided he was entitled to the immediate possession at the time of the conversion.\\nThe county court adjudged, that, by the contract, the plaintiff had parted with the property for three years, which, had not expired at the commencement of this suit. This, we think, was clearly erroneous, The terms of the contract do not warrant that construction, but, on the- contrary, by the very terms of the contract, the plaintiff was entitled to reduce the property to actual possession^ when he pleased.\\nThe result is, that the judgment of the' county court must be reversed^ 7\"}"

vt/4422691.json

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+"{\"id\": \"4422691\", \"name\": \"Executor of Hamblin Converse v. Erastus Converse\", \"name_abbreviation\": \"Executor of Converse v. Converse\", \"decision_date\": \"1849-01\", \"docket_number\": \"\", \"first_page\": \"168\", \"last_page\": \"171\", \"citations\": \"21 Vt. 168\", \"volume\": \"21\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"\", \"parties\": \"Executor of Hamblin Converse v. Erastus Converse.\", \"head_matter\": \"Executor of Hamblin Converse v. Erastus Converse.\\nA lower degree of intellect is requisite to make a will, than to make a contract. J3ut in the former case something more is required than mere passive memory. There must be sufficient active memory to collect and retain the elements of the business to be performed, for a sufficient time to perceive their obvious relation to each other.\\nIn this case the court below instiucted the jury, that the validity of the will in question must depend upon whether the testator had sufficient mental capacity to execute it, at the time it was executed; that he must then have been of sound disposing mind ; that this did not imply, that the powers of the mind must not have been weakened, or impaired, by disease, or old age; that it would not be sufficient, that the testator might be able to understand a question and answer it in a rational manner, nor was it necessary, that he should have such a capacity of mind, as would justify his engaging in complex and intricate business; but that the jury must be satisfied, in order to justify them in establishing the will, that the testator, when he made it, was capable of knowing and understanding the nature of the business he was then engaged in, and the elements of which the will was composed, and the disposition of his property, as therein provided for, both as to the property he meant to dispose of by his will, and the persons to whom he meant to convey it, and the manner in which it was to be distributed between them. And it was held, that herein there was no error.\\nAppeal from a decree of the probate court, allowing the will of Hamblin Converse. Trial by jury, December Term, 1848, \\u2014 Bennett, J. presiding.\\nOn trial, after the executor had given evidence to prove the formal execution of the will, the defendant introduced testimony tending to prove, that the testator, at the time of making the will, was about seventy eight years of age, and that as early as 1844 he was afflicted with a disease of the brain, which was incurable and progressive, and that he lost all reason for some months before he died; and physicians were called, who gave it as their opinion, that the testator might do common business, with which he was familiar, but that he would not be able to enter into any new or complicated business, and that no reliance could be placed on the action of his mind-.\\nThe executor introduced evidence tending to prove, that the testator, at the time of making the will, and before and after, was of sound mind, and capable of transacting all kinds of business.\\nThe defendant requested the court to charge the jury, that, if the testator was feeble in body and mind, and subject to a disease of the brain, which was continuous and progressive, and his memory and mind were so impaired, that he could not act upon important business with reason and judgment, he was incapable of making a will.\\nBut the court, among other things not objected to, instructed the jury, that the validity of the will in question must depend upon the fact, whether the testator had sufficient mental capacity to execute it, at the time it was executed; and that, to give it effect, he must then have been of sound disposing mind ; but that this did not in any way imply, that the powers of the mind must not have been weakened, or impaired, by disease, or old age; and in regard to the degree of capacity, which the jury must be satisfied the testator possessed at the time of making the will, the court told the jury, that it would not be sufficient, that he might be able to comprehend and understand a question which might be propounded to him, and answer it in a rational manner, nor was it necessary, that he should have such a capacity of mind, as would justify his engaging in complex and intricate business; but that the jury must be satisfied, in order to justify them in establishing the will, that the testator, when he made it, was capable of knowing and understanding the nature of the business he was then engaged in, and the elements of which the will was composed, and the disposition of his property, as therein provided for, both as to the property he meant to dispose of by his will, and the persons to whom he meant to convey it, and the manner in which it was to be distributed between them ; and that, if they found all this, it should be found, that he had sufficient capacity to make the will in qu\\u00e9stion, but otherwise not.\\nThe jury returned a verdict establishing the will. Exceptions by defendant.\\nII. Seymour and Linslcy 4* Beckwith for defendant,\\ncited 6 Co. $ 23; 8 Vin. 43 ; 2 Hagg. 84; 2 Eccles. R. 348.\\nJ. Pierpoint and A. Peck for plaintiff,\\ncited 3 Wash, C. C. R. 587; 4 lb. 261; 9 Conn, 102 ; 8 Mass. 371; Roberts on Wills 30.\", \"word_count\": \"1346\", \"char_count\": \"7514\", \"text\": \"The opinion of the court was delivered by\\nRedfield, J.\\nThe subject involved in this case is one of some difficulty. It is not easy to lay down any precise rule, as to what exact amount of mental capacity is sufficient, to enable one to dispose of property by will. The rule laid down by the judge in this case, in summing up to the jury, seems to have been rather a medium one, rather sensible and judicious, and if we reversed the judgment, we could hardly expect to prescribe a safer or more intelligible one. Every man will have his own mode of expressing the thing. The rule of one is very little guide to another.\\nI have myself usually told a jury, in these cases, that less mind is ordinarily requisite to make a will, than a contract of sale, understanding^, for the reason, that in contracts of sale there are usually two parties, and some degree of antagonism between their interests and efforts; \\u2014 so that here mind is opposed to mind, and consequently it is somewhat more difficult to see clearly the just bearing of all the relations presented, than under the common circumstances of making a will, where one is left free to act upon his own perceptions merely. But this is not always the case in making a will. One may be beset by an army of harpies, in the shape of hungry expectants for property, altogether more perplexing than the ordinary circumstances attending a disposition of property by sale.\\nBut it may be safe, no doubt, to affirm, that, in making any contract understandingly, one must have something more than mere passive memory remaining. He must undoubtedly retain sufficient active memory, to collect in his mind, without prompting, particulars, or elements, of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive, at least, their more obvious relations to each other, and be able to form some rational judgment in relation, to them. The elements of such a judgment should be, the number of his children, their deserts, with reference to conduct and capacity, as well as need, and what he had before done for them, relatively to each other, and the amount and condition of his property, with some other things, perhaps. The capability of men in health to form correct judgment in such matters is no doubt very unequal, and, when there is no inherent incongruity in the will itself, and no just ground to suspect improper in fiuence, juries are, and perhaps should be, very liberal in sustaining testamentary dispositions. But there must undoubtedly be some limit. When one is confessedly in a condition to be constantly liable to commit the most ludicrous mistakes, in regard to the most simple and familiar subjects, he ought not to and cannot make a will.\\nJudgment affirmed.\"}"

vt/4425438.json

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+"{\"id\": \"4425438\", \"name\": \"John Hackett v. Lucius Kendall\", \"name_abbreviation\": \"Hackett v. Kendall\", \"decision_date\": \"1851-01\", \"docket_number\": \"\", \"first_page\": \"275\", \"last_page\": \"279\", \"citations\": \"23 Vt. 275\", \"volume\": \"23\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T22:51:06.343822+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John Hackett v. Lucius Kendall.\", \"head_matter\": \"John Hackett v. Lucius Kendall.\\nStatute of limitations. Absence. Domicil. Promissory note. Title of bearer.\\nA debtor must be considered \\u201c to be absent from and reside out of the state,\\u201d within the meaning of the exception in the statute of limitations, when his domicil within the state is so broken up, that it would not be competent to serve process upon him by leaving a copy there. And for that purpose there must be some place of abode, which his family or his effects exclusively maintain, in his absence, and to which he may be expected soon, or in some convenient time, to return, so that, a copy being left there and notice in fact proved, the plaintiff may take a valid judgment.\\nThe defendant, in an action upon a promissory note, is not allowed to contest the \\u25a0 plaintiff\\u2019s title to sue, except for the purpose of protecting himself from a subsequent suit, in the name of some one having better title, and who has not acquiesced in the suit commenced.\\nBut where it appeared, that the person, who was claimed by the defendant to be the real owner of the note, had full knowledge of all the proceedings in this suit, and had not in any manner asserted any right to interfere, it was held, that a payment of the judgment to the plaintiff, if permitted by the real owner of the note, would be a sufficient protection to the defendant.\\nAssumpsit upon a promissory note for $23,50, dated September 30, 1841, payable to Mehitable M. Booth, or bearer, in one year from date, with interest. Pleas, the general issue and the statute of limitations, and trial by jury, December Term, 1850, \\u2014 Pierpoint, J., presiding.\\nOn trial, the plaintiff, after giving in evidence the note declared upon, gave evidence tending to prove, that in the spring of 1844 the defendant, who had a family and kept house in Granville, Vermont, discontinued house keeping, and his wife went, with her child, to live with her father in Granville, and the defendant went to Massachusetts, for the purpose of finding temporary employment there, and not knowing haw long he should be gone, or where he should stop, but not intending to change his residence, but to return to Granville again, and leaving his furniture and property there, with his family; that he remained at work in Massachusetts for more than a year, his family residing all the time in Granville, and at the expiration of that time he returned and resided in Granville, with his family, until April, or May, 1846, when he again went to Massachusetts, taking his wife and child with him, and leaving his furniture and effects at Granville, and intending to remain in Massachusetts and work during the season, and then to return to Granville, and not intending to change his residence from Granville to Massachusetts. The defendant\\u2019s evidence tended to prove, that the intention of his wife, in accompanying him, was to visit some friends. It appeared, that the defendant, on this occasion, remained in Massachusetts, at work, until January, 1847, when he returned to Granville; and that he kept house in Massachusetts during the last three or four months of his being there; and that, about the time he commenced keeping house there, he made arrangements for returning to Granville, in pursuance of his original intention at the time he left. There was no conflict in the testimony as to the time and manner of the defendant\\u2019s residence in Massachusetts.\\nThe defendant gave evidence tending to prove, that the payee of the note in suit was the wife of one Sidney Booth at the time the note was given, and that the note was given in payment for a carpet, which belonged to Booth previous to his marriage, and which he sold to the defendant; \\u2014 -and' also gave in evidence copies of record from the United States\\u2019 district court, showing the petition, proceedings thereon, decree and discharge in bankruptcy of Booth, after the execution of the note; \\u2014 and also gave evidence tending to prove, that the note remained in the possession of Booth until a short time before the commencement of this suit, when he sold and transferred it to the plaintiff and soon after left the country; \\u2014 and also proved by the assignee in bankruptcy of Booth, that he had no knowledge of the existence of this note, or of this suit, until the day of this trial, and that he never transferred the note to the plaintiff, or authorized any transfer of it or any suit to be commenced upon it. The defendant also offered to prove, that, at the time the note was executed, Booth requested to have it made payable to his wife, stating that he designed going into bankruptcy and wished that it should not pass to his assignee, and that the note was accordingly so executed. This evidence was objected to by the plaintiff and excluded by the court. There was no evidence, that the plaintiff had notice of the circumstances of the execution of the note, or of the proceedings in bankruptcy, before the purchase of the note. No evidence was introduced by the plaintiff in reference to the transfer of the note, or the facts connected with the consideration or possession of the note, or the proceedings in bankruptcy.\\nThe court instructed the jury, that, if they believed the witnesses, the period of the defendant\\u2019s absence to Massachusetts should be deducted from the period which elapsed between the time when the note became due and the commencement of this suit, for the purpose of determining the question, whether the note was barred by the statute of limitations; and that the facts proved in regard to the bankruptcy of Booth and the transfer of the note did not constitute any defence to the not\\u00e9.\\nVerdict for plaintiff. Exceptions by defendant.\\nE. J. Phelps for defendant.\\nBarber and Buslmell for plaintiff.\", \"word_count\": \"1691\", \"char_count\": \"9595\", \"text\": \"The opinion of the court was delivered by\\nRedfijeld, J.\\nThe first question arising in the case is, wheth\\u00e9r the defendant's absence from the state, as stated in the bill of exceptions, was of such a character, as properly to be deducted in computing the time of the statute of limitations. We understand from the argument, although the date of the writ is not copied into the case furnished to the court, that if either absence of the defendant be deducted, it will be sufficient to remove the bar. It will therefore only be necessary to examine the latter; as, if this be not sufficient, the other must fail of course, and if this be allowed, it is sufficient.\\nIt seems to us, that all, which it is important to determine, is, whether the defendant, at that time, left any domicil in this state. If not, he must be taken to \\\" be absent from' and reside out of the state,\\\" in the language of the statute. This question of domicil may possibly be viewed differently with reference to different subjects. But the consideration, which must have operated upon the legislature in so framing the statute in this case, seems to us to have been what is suggested by counsel, \\u2014 whether the defendant's domicil in this state was so broken up, that it would not have been competent to serve process upon him, by leaving a copy there. And for that purpose, it seems to us, there must be some place of abode, which his family or his effects exclusively maintain in his absence, and to which he may be expected soon, or in some convenient time, to return, so that, a copy being left there and notice in fact proved, the plaintiff may take a valid judgment. The merely scattering the remnants of his effects among his friends seems more like breaking up than keeping a domicil.\\nIt is useless to speculate upon possible cases. It is obvious the latter absence of the defendant left no such domicil in this state. A somewhat similar rule has been adopted in regard to a residence to confer a settlement in this state during the actual absence of the person concerned, for all or a portion of the time. In Middletown v. Poultney, 2 Vt. 437, it is said, that one's family, to continue his residence in his absence, for such purpose, \\\" must continue together, keeping house as a family.\\\"\\nIn regard to the plaintiff's title to the note in this case, that is a question, which the defendant is only allowed to raise for the purpose of protecting himself from a subsequent suit in the name of some one having better title, and who has not acquiesced in 'the present suit. Beyond that the defendant is not allowed to contest the plaintiff's title to sue.\\nIn the present case nothing appears to make it at all probable, that the assignee will ever assert any control over this note. The settlement of Booth's estate is no doubt closed in the district court, the bankrupt law is repealed, this note is of insignificant amount, and even if the saving in the repeal of the law would justify the assignee in instituting a new proceeding in that case, it is absurd, almost, to suppose it will be done.\\nBut it may be said, the principle is as important, as if the debt were larger. It is more so, perhaps; for there is little else, which is important here. And it appearing, that the assignee had notice of this suit, before the judgment in the court below, he must now be esteemed as acquiescing in the farther progress of the suit, which he might at any time arrest, if not at law, certainly in equity, if the amount were sufficient. And even after this judgment is entered up, the assignee, if his title is good, \\u2014 which I should not much doubt, \\u2014 and he courts such an office, may now, as we think, control the collection of the execution; and if he do not interfere, until the money is paid over, he must \\\" forever hold his peace,\\\" and the payment will protect the defendant. Judgment affirmed.\"}"

vt/4426633.json

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+"{\"id\": \"4426633\", \"name\": \"David Hunter v. Windsor and West Windsor\", \"name_abbreviation\": \"Hunter v. Windsor & West Windsor\", \"decision_date\": \"1852-03\", \"docket_number\": \"\", \"first_page\": \"327\", \"last_page\": \"338\", \"citations\": \"24 Vt. 327\", \"volume\": \"24\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T20:38:50.999317+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"David Hunter v. Windsor and West Windsor.\", \"head_matter\": \"David Hunter v. Windsor and West Windsor.\\nLiability of towns for the neglect of their town clerics. Declaration. Demurrer.\\nIt is the duty of the town clerk to provide an alphabet or index, for the hook of record used for recording evidences respecting titles to lands or real estate, and to keep and preserve the same for inspection and use, with the same truthfulness and care, that he is required to exercise in keeping the books of record, and when an injury has been sustained by any one, by reason of neglect in this respect, the town is liable under the statute.\\nBut to enable a party to sue for such neglect, it must appear that the neglect to keep such an alphabet or index, was the cause of the damage he has sustained.\\nWhere the plaintiff, in an action for the neglect of the town clerk to preparo and keep an alphabet or index, in'order to show that the damage he sustained, was the result of, and caused by this neglect of the town clerk, set forth in his declaration the following averments or statement. \\u201c That upon the occasion of the negotiation and purchase of the premises by the plaintiff, and before completing the same, and for the purpose of assuring himself that the premises were free from incumbrance, he made an examination of the records of deeds in the town clerk\\u2019s office, and by reason of there being no alphabet, index or reference pointing to that mortgage deed, or the record thereof, he was caused and led to believe, and did believe that there was no incumbrance upon the same, and that thereupon ho completed and closed, on the 31st day of March, 1845, his purchase of the premises.\\u201d It was held, on general demurrer, that the fact is sufficiently stated that the damage of the plaintiff was* the result of, and caused by thatneg lect of the town clerk.\\nAnd it was also held, that it was not necessary to aver in the declaration that the plaintiff made a specific request for the index or alphabet\\nAnd it was also held, that the words, \\u201c debts now due,\\u201d in the act of 1848, dividing the town of Windsor into Windsor and West Windsor, should be held as synony mous with the word liabilities, whether arising ex-conh'actu or ea-delicto.\\nTrespass on the Case, for the default of a town clerk. The declaration was as follows :\\n\\u201c The towns of Windsor and West Windsor, (formerly constituting a sole town hy the name of Windsor,) in the county of Windsor, are summoned to answer unto David Hunter of Windsor, in the county of Windsor, in a plea of the case, for that heretofore, to wit, at Windsor, in said county of Windsor, from the month of March, A. D, 1835, until the month of March, A. D. 1841, (during which period said present towns of Windsor and West Windsor constituted in law only one town, by the name of Windsor,) Edwin Edgerton was legal town clerk of said then town of Windsor, duly chosen and acting as such under appointment from said town. And on the first day of May, A. D. 1835, said Edwin Edgerton, being indebted to George Curtis and Edward Curtis in the sum of two thousand dollars, executed and delivered to said George and Edward, his, said Edgerton\\u2019s, promissory note of that date, for the same sum aforesaid, payable to them or order in one year from its said date, with interest annually. And in order to secure the payment of said note according to its tenor, afterwards, to wit, at said Windsor, on the 10th day of June, A. D. 1835, said Edwin Edgerton and Susan C. Edgerton his wife, executed and delivered to said George and Edward Curtis their deed of mortgage of that date, of certain lands of said Edwin and Susan, in Windsor aforesaid, described in said deed, which was by them signed, sealed and acknowledged, in due form of law, therein conveying to said George and Edward Curtis, the whole and entire title to said lands, conditioned to be void upon the payment of said note, which deed was left by said George and Edward Curtis with said Edgerton, town clerk as aforesaid, for record, and was by him, as such town clerk, to wit, at said Windsor on the 11th day of June, A. D. 1835, duly recorded in the book of record of said then town of Windsor, as by said record, a true and attested copy whereof is here ready in court to be shown, will appear.\\nBut the said Edgerton, then clerk aforesaid, did not then, nor did he ever make or cause to be made, nor was there ever made or kept by any one any alphabet or index or reference pointing to said deed or record thereof, during the period he was town clerk as aforesaid, nor till long after the 31st day of March, A. D. 1845.\\nAnd heretofore, to wit, on the 31st day of March, A. D. 1845, the plaintiff, not knowing of the existence of said mortgage deed to George and Edward Curtis, negotiated and purchased of Wil liam White, then of said Windsor, a portion of the premises and estate embraced in said mortgage deed, said portion being bounded and described as follows, to Wit: * - * * '* * *' said White then holding-title thereto, derived by deed of warranty executed by said Edgerton subsequently to tbe execution of said deed of mortgage to said George and Edward Curtis \\u2014 and upon the occasion of the negotiation and purchase aforesaid, and before completing and closing the same, the plaintiff, for the purpose of assuring himself and being certain that said portion of said premises was free from incumbrance, made examination of the records of deeds in the town clerk\\u2019s office of said town of Windsor, and by-reason of there then being no alphabet, index or reference pointing to said mortgage deed or the record thereof as aforesaid, the plaintiff was caused and led to believe, and did believe then and there, as well he might, that there was no incumbrance upon said portion of said premises, and thereupon the plaintiff, to wit, on said 31st day of March, A. D. 1845, completed and closed his purchase of said portion of said premises of said White, and then and there, for the consideration of $400, paid by the plaintiff to said White, said White made and executed his deed of warranty of said portion of said premises in said last mentioned deed described, and delivered the same to this plaintiff, which said deed was signed, sealed and acknowledged by said White, all in due form of law, which said deed to the plaintiff was on the Slst day of March, A. D. 1845, lodged in the town clerk\\u2019s office, in said then town of Windsor, for record, and was therein duly recorded, as by the plaintiff\\u2019s said deed, here in court ready to be shown, will appear.\\nAnd the plaintiff avers, that it was the duty of said Edgerton,. as town clerk as aforesaid, at the time of recording of said mortgage deed, to have made; and of every town clerk, successor of' said Edgerton, - to have made ; and of said town at all times to', have caused to be made and kept open to inspection and examination, an alphabet or index, or some reference in the form of an. index, attached to, or connected with the hook of records wherein. said mortgage was recorded, pointing to said mortgage and record thereof, whereby tbe same might be found.\\nAnd the plaintiff avers, that had he had- notice of said incumbrance of said mortgage to said George and Edward Curtis, he should not have made said purchase, and that he did not know at, the' time of making said purchase, nor did he ever know or learn, or suspect the existence of said mortgage, until the commencement of the suit hereinafter named, brought by said George and Edward Curtis for the foreclosure of said mortgage.\\nAnd the plaintiff further avers, that afterwards, to wit, at Woodstock aforesaid, on the 13th day of October, A. D. 1845, the note secured by said mortgage remaining unpaid, said George and Edward Curtis commenced a suit by bill in chancery against said Edgerton and wife, \\u2014 the plaintiff and divers other persons therein, named to foreclose said mortgage \\u2014 made returnable into the court of chancery, to be held at Woodstock, in said county of Windsor ora the first Tuesday of November, A. D. 1845, which was duly served and entered in said court, and thereupon such proceedings were had, that at a term of said court held at Woodstock aforesaid, on the fourth Tuesday of May, A. D. 1849, said George and Edward Curtis obtained a final decree in their favor against the plaintiff and the other defendants in said suit, for the amount due upon said mortgage note with the interest, and the costs of said suit, making in all the sum of $3458,32 \\u2014 which sum, together with the accruing interest thereon, the plaintiff, together with said other defendants, was decreed to pay, on or before the first Tuesday of June, A. D. 1850, or be foreclosed of and from all equity of redemption in said mortgaged premises, as by the record thereof, duly authenticated copies whereof are here ready in court to be shown, will appear.\\nAnd the plaintiff avers, that by reason of the neglect and default of said Edgerton as town clerk, and of his successors in said office of town clerk, and of said then town of Windsor, in the manner aforesaid, he has sustained great damage. And in order to save the land so by him purchased as aforesaid from the operation of said decree, he (the plaintiff) has been compelled to pay and has paid a large amount, to wit, the sum of $500, and has otherwise been put to great trouble and expense in the premises, to wit, the further sum of one hundred dollars.\\nWhereby, by force of the statute in such case provided, an action hath accrued to the plaintiff to demand, have and recover of the said towns of Windsor and West Windsor (formerly Windsor) his said damages, sustained by reason of the premises as aforesaid, yet, &c.\\u201d\\nTo this declaration the defendants demurred.\\nThe county court May term, 1851, \\u2014 Pierpoint, J. presiding,\\u2014 decided that the declaration is sufficient, and rendered judgment for the plaintiff. Exceptions by defendants. <\\nWashburn Marsh for defendants.\\nThe cause of action does not survive against these, defendants. The town of Windsor, against which the liability accrued, ceased to exist by the statute of Oct. 26,1848 ; acts of 1848, p. 8. Tiles-ton v. Newman et at, 23 Yt. 421, and no liability for any past matter exists against the new towns thereby created, except such as is specially saved by the statute. The statute saves the liability for debts, using the words, \\u2014 \\u201c debts note due from the town of Windsor,\\u201d \\u2014 technically implying such operations as derive their binding force from contract, express or implied, and not extending to penalties imposed solely by statute, or to compensations to be made for torts, personal in their character, such as are sought to be enforced in this action. A bankrupt\\u2019s certificate would not bar such claims; nor would such right of action pass to the assignee in bankruptcy, and no reason exists why the word \\u201c debts\\u201d should receive any other or more enlarged construction in this statute, than in the statutes relating to bankruptcy, or in other analogous statutes.\\nThe omission to index the mortgage was not the neglect of a duty, on the part of the town clerk, for which the town is responsible. It was the duty of the town clerk truly to record the mortgage. SI. Stat. 415 \\u00a7 20.\\nAnd it has been decided by this court, in the case of Curtis v. Lyman that this requirement was complied with; that the deed \\u25a0was truly recorded,. It is difficult for us to conceive how the town can be held liable for the neglect of the town clerk to do, what this court has decided he in fact did.\\nTracy, Converse and Barrett for plaintiff.\\n1. Towns are liable for \\u201c neglect\\u201d or \\u201c default\\u201d of town clerks, &c.\\nDo the matters alledged in declaration show a \\u201c neglect \\u201d or \\u201c default\\u201d which will make town liable ? R. S. 89 \\u00a7\\u00a7 29, 30. Slade\\u2019s Ed. 420.\\nThe statute of 1779 provides that a \\u201c hook or books with an in- \\u201c dex or alphabet to the same, suitable for registering deeds and \\u201cother evidences respecting title to lands, and a book or books for \\u201c recording the proceedings of town meetings, shall be provided \\u201c by town clerk, &c. And it is hereby made the duty of the town \\u201c clerk or register truly to record all deeds, &c.\\u201d\\nThe same statute provides a penalty for a neglect and refusal to record, p. 415.\\nBy the Rev. St. it is provided that the town clerk \\u201c shall also \\u201c furnish and keep in his office, contained in, or, annexed to, the \\u201c books of record for deeds and other evidences concerning real es- \\u201c tate, a suitable index of reference to every instrument on record \\u201c in such books.\\u201d p. 89 \\u00a7 30. Comp. Stat. 116.\\nThe neglect to procure an \\u201c index or alphabet\\u201d or furnish one, is distinctly alledged.\\nIt is also alledged that the plaintiff examined the records, to see what was the state of title. \\u201c Did not find the mortgage to Curtis, \\u201c because there was no index or alphabet.\\u201d\\nBy means of the neglect to prepare such index, he lost his title, or was obliged to redeem the Curtis mortgage.\\nNo doubt then, the injury to the plaintiff was occasioned by the neglect to furnish the index.\\nThat the neglect to furnish the index, is a \\u201cneglect\\u201d is beyond doubt. And why will not the town be as liable to pay all damages arising from this neglect, as any other neglect \\u2014 as much as neglect to \\u201c record ?\\u201d\\u25a0\\nThe index is practically of as much importance as the recording. It was so determined in the case of Curtis v. Lyman, decided in this court, not reported.\\n2. Did the division of the town of Windsor, in 1848, annihilate this claim ? Acts of 1848, No. 7.\\nThe act expressly provides for all debts then due from the town.\\nThe fact that it was an unliquidated claim, can make no difference.\\nBy the record, \\u201c debt\\u201d as used in the statute referred to, is meant liabilities or claims of every description. Nothing short of that could be intended by the Legislature.\\nIf, however, it was the intention of the Legislature to relieve the town of this or similar liabilities, it was beyond their constitutional power to do so.\\nThe fact that an action on the case was prescribed as the remedy in this case, can make it no different from what it would have been, had debt been the action.\\nIt was equally beyond the power o\\u00a3 the Legislature in both cases to \\u201c impair\\u201d or abrogate the liability of the town.\\nHad no provision been made in the act, for the debts and liabilities of the town, they would have remained unimpaired.\\nThe town of Windsor was not annihilated, but it was simply divided.\\nThe Legislature had no power to dissolve or annihilate the political existence of the town so as to impair the rights of any one.\\nThey did not attempt to exercise any such power.\\nThis question was directly settled in the case of Stone v. Windsor and West Windsor, last June term of this court..\\nThe opinion in the case of Curtis v. Lyman was delivered by Hall, J., and follows the opinion of Judge Isham in this case.\", \"word_count\": \"4886\", \"char_count\": \"27655\", \"text\": \"The opinion of the court was delivered by\\nIsham, J.\\nThe questions in the case arise upon a general demurrer to the declaration.\\nThe action is in case upon the statute, in which the. defendants are sought to be charged, in consequence of the negligence and default of the town clerk of Windsor, previous to its division by act of the Legislature in 1848.\\nThe particular matter of default or negligence, of which the # plaintiff complains, is the neglect of the clerk to make and keep an alphabet or index, annexed to the book of records, and referring to such deeds or instruments as are on record therein. And for the neglect of the clerk in this particular, this action is brought.\\nIt is insisted by the defendants that it was no part of the official duty of the clerk to make such index, and that in this case, his duties as town clerk were fully discharged; in recording at length upon the records of the town, the mortgage deed of Edgerton and wife to George and Edward Curtis, although he did neglect and omit to enter the same on any alphabet or index, belonging to the book of records. And the question presented on this demurrer is, whether that is an official neglect on the part of the town clerk, for which the town is responsible.\\nThe act of 1797, Slade's Comp. 414, Sec. 20, provides \\\" That a \\\" book or books with an index or alphabet to the same, suitable for \\\" registering deeds and other evidences of title to lands, and 'a \\\" book or books for recording the proceedings of town meetings, \\\" &c. shall be kept in each town in this State, and which are to \\\" be provided by the clerk, at the expense of such town, and it is \\\" made the duty of the town clerk truly to record all deeds and \\\"conveyances, writs and executions, where by law it becomes \\\" necessary.\\\" The intention of the Legislature in these provisions is very evident, and it is the duty of the court to give such construction to the act as will carry such intention into effect.\\nTwo different set of books are to be kept; one exclusively for recording evidences respecting titles to lands, with an index or alphabet to the same, the other for recording the proceedings of town meetings, &c. and with .which no index is required. It may with propriety be asked, for what purpose is the clerk required to procure an alphabet or index, in connection with the book of records for recording evidences of title to real estate. Certainly it wras not for the purpose of effecting constructive notice of the execution and record of deeds, for that object is accomplished by recording the deeds at length upon the records, although there has been a neglect and omission to index or alphabet the same. This was so ruled by this court in the case of Curtis v. Lyman, on a bill of foreclosure brought on this same mortgage deed ; and the plaintiff and others, who subsequently became interested in the premises included in the mortgage deed, were charged with constructive notice thereof, and their title was held subject to that incumbrance.\\nEvidently, therefore, that whole provision is a singular instance of idle legislation, if the Legislature did not intend that the index or alphabet should be kept in each town, for the definite object and purpose of furnishing an easy and accessible facility, by which any person in the exercise of reasonable diligence, can discover and obtain actual notice of the existence of any deed, or mortgage, or evidences of title to real estate thereon, so that all persons who may become purchasers thereof, or who may wish to make advances on such security, may obtain actual knowledge of the title and condition of the property. That such an index or alphabet is of practical importance, that it contributes, and is even rendered essential, as a facility for such discovery and notice, must be within the experience of every one conversant with such records. And it is not to be presumed, that such an important facility for the discovery of the true condition of real estate was overlooked or disregarded by the Legislature.\\nThe act, therefore, was designed to effect two objects, in the first place, providing the means, and furnishing facilities for the discovery of, and obtaining notice in fact of such deeds, mortgages and evidences of title, as are placed on the records. And in the second place, to furnish the proper evidences of constructive notice, when all means before provided, have failed in giving actual notice ; and when an injury has been sustained by any one for 'a neglect in either respect, the town is liable under the statute.\\nThe statute imposes the duty upon the town clerk to record all deeds, conveyances, writs and executions, and to keep such boohs within his town, and to record the proceedings of town meetings. It is true that in the specific enumeration of matters to be recorded, no mention is made of the index or alphabet. But the general provision is in these words, \\\" It is made the duty of each town \\\" clerk in this State, to keep such books within his respective town.\\\" The words \\\" such boohs\\\" evidently refers to all those which it was made the duty of the town clerk to procure at the expense of the town. And in specifying those books, the index or alphabet is particularly mentioned.\\nOn this subject the intention of the Legislature is too obvious to be mistaken, and we conceive it would be a great departure from judicial duty to defeat that intention by an illiberal or technical construction. To carry into effect an intention so manifestly spread upon the face of the act, the court, if necessary, would be warranted in departing from the ordinary meaning and use of words, and would disregard the grammatical construction, for the object of the act is salutary, and necessary for the safety of those who are interested in the evidences of title to real estate.\\nWe have no hesitancy, therefore, in deciding that it was the duty of the town clerk, to provide such an alphabet or index, and to keep and preserve the same for inspection and use, with the same truthfulness and care, that he is required to exercise in keeping the books of record.\\nTo enable the plaintiff, however, to sue for such neglect, it must appear that he has sustained a damage thereby, or in other words, it must appear that the neglect to keep an alphabet or index, was the cause of the damage he has sustained, and as this matter arises upon demurrer, such averments should be made in the declaration.\\nThe declaration contains the following statement of facts, and which are admitted hy the demurrer; that the mortgage 'deed of Edgerton and wife, to George and Edward Curtis, was executed and recorded on the 11th day of July, 1835, but that the clerk has never made, and kept for inspection and examination an alphabet or index, referring to the deed or its record, until after the plaintiff had become a purchaser of those premises; and that as such purchaser, he never had actual knowledge of the existence of that incumbrance, until the bill in chancery, to foreclose the premises on the Curtis mortgage, was served upon him. It is also stated in the declaration, that on that bill a decree was obtained, and that to protect his property under his purchase, he has been compelled to pay and advance the money for which, as damages, this suit is brought. In the statement of the plaintiff's cause of action, in his declaration thus far, we find admitted by the demurrer, the neglect of the clerk to make and keep an alphabet or index to the book of records, on which is recorded the evidence of title to real estate; and also, the damages which the plaintiff has sustained, in consequence of not having notice in fact of the existence of the Curtis mortgage. In order, therefore, to show that the damages which the plaintiff has sustained, was the result of, and caused by this neglect of the town cleric, the declaration contains the following averments or statement: \\\" That upon the occasion of the negotia- \\\" tion and purchase of the premises by the plaintiff, and before \\\" completing the same, and for the purpose of assuring himself \\\" that the premises were free from incumbrance, he made an ex- \\\" amination of the records of deeds in the town clerk's office, and \\\" by reason of there being no alphabet, index or reference, point- \\\" ing to that mortgage deed, or the record thereof, he was caused \\\" and led to believe, and did believe that there was no incumbrance \\\" upon the same, and that thereupon he completed and closed, on \\\" the 31st day of March, 1845, his purchase of the premises.\\\"\\nThe sufficiency of these averments and statement, it should be observed, arises upon general demurrer; and it is sufficient, if those facts are substantially stated, which will give a right of action, without regard to the form of statement, for if the statement is informally alledged, that can only be reached by special demurrer. On this demurrer therefore, we think the fact is sufficiently stated, that the damage of the plaintiff was the result of, and caused by that neglect of the clerk. It is not stated that the plaintiff made a specific request for the index or alphabet. If such a specific request was necessary, it should have been averred in the declaration. But we do not think such a specific request is necessary in any case. The plaintiff had a fight to make a personal examination of the record for himself, and he was under no necessity of making known the object of such examination. He possibly might have deemed it imprudent to make such disclosure. And no such duty or obligation rests upon any one; every person has a right to a personal examination of such records, and for that purpose, may call upon the clerk for the book of records, containing the evidences of title to lands,- and upon such general request, it is as much the duty of the clerk to submit to his examination, and use the index or alphabet to such books of record, as the books themselves. And if he neglects so to do, and damages have resulted therefrom the town is responsible therefor. Upon that part of the case therefore, we think the declaration is sufficient, and sets forth a good cause of action.\\nAnother objection has been urged on this demurrer to this declaration, and equally effecting the right of action. It is insisted that whatever may have been the former liability of Windsor on this matter, that liability was removed and lost by the division of the town under the act of 1848. ' This we can but feel, is giving rather a severe effect to the operation of that act, particularly as it regards third persons, who were not as inhabitants of l lie town interested in such division. And that no court would fed disposed \\u2022 to give such effect to the act, unless compelled so to do, by most unequivocal legislation, even if there were no constitutional objections in the way. It is also insisted, that by that division, the corporate existence of Windsor, as it existed when this cause of ac- * tion accrued, has been lost and its charter vacated ; and that with it were lost all claims and causes of action, except such as have been particularly excepted from its operation.\\nThe statute making that division, saves the liability for debts notv due from, the town of Windsor and specifies the manner and proportion to be paid by each town respectively.\\nIn this provision, the Legislature were evidently settling the terms of that division, and disposing of matters that might be in controversy between them after the division was effected. And it is not reasonable to suppose that they were simply providing the manner in which debts arising ex contractu should be apportioned between them, for there may have been, and it is not unreasonable to suppose that there were other liabilities existing arising ex delicto, which should be proportionately paid by the respective towns. As claims against the town for neglect in keeping roads in repair, neglect of constables, &e. That the Legislature intended, under that form of expression, to include the whole liabilities of the town of Windsor, as it stood when the division was made, is'very appareht. And the words, \\\"debts now due,\\\" should be held as synonymous with the word liabilities, whether arising ex contractu or ex delicto.\\nThat clause of the act, saves all such liabilities of the town of Windsor, as it then stood, from the operation and effect of the division, and those liabilities still rest upon the territory, and inhabitants of Windsor and their successors, the same as if that division had not been made. \\u2022\\nWe are not therefore, called upon to investigate the question whether for any purpose that division vacated the old charter of Windsor and created two new towns, with new charters, as by an express saving clause the matter for which this suit is brought, is excepted from its operation, and unaffected by the division.\\nThe result is, that the judgment of the county court is affirmed.\"}"

vt/4428795.json

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+"{\"id\": \"4428795\", \"name\": \"The Town of Stowe v. The Town of Brookfield\", \"name_abbreviation\": \"Town of Stowe v. Town of Brookfield\", \"decision_date\": \"1854-04\", \"docket_number\": \"\", \"first_page\": \"524\", \"last_page\": \"529\", \"citations\": \"26 Vt. 524\", \"volume\": \"26\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T18:55:45.403440+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Town of Stowe v. The Town of Brookfield.\", \"head_matter\": \"The Town of Stowe v. The Town of Brookfield.\\nPaupers. Order of removal, its effect, \\u00a7c.\\nAn order of removal of a pauper, notified to the town, to which the order is made within thirty days, according to the statute, conclusively fixes the settlement of the pauper, unless appealed from.\\nIt is the same as any other judgment, as to its conclusiveness, when the order is regularly made, and notice properly served upon the adversary town.\\nAn order of removal regularly made, and properly served upon the adversary town, and unappealed from, is conclusive of the settlement of the pauper at its date, and to change the settlement by residence, that which is subsequent, in point of time to the order can only be taken into the account.\\nThis was an appeal from an order of removal of one Barney Smalley, with his wife and family from said Stowe, to said Brook-field, made hy two justices of Stowe, on the 11th day of March, A. D. 1853.\\nPlea, that the paupers were unduly removed, because their last settlement was not in said Brookfield, and trial by the court.\\nIt appeared on trial, that the paupers sometime in 1842, then having a settlement in the town of Brookfield aforesaid, moved from said Brookfield, into the said town of Stowe and there resided for more than seven years continuously, without becoming chargeable to either of said towns, and during all that time supported and maintained themselves and did not become chargeable, until about the time the said order, in 1853, was made, otherwise than by the expense the town of Stowe may have incurred in making a certain order of removal in 1848.\\nIt also appeared, that on the 16th day of September, A. D. 1848, an order for the removal of said paupers, from said Stowe to said Brookfield, on the ground that said paupers were likely to become chargeable, was made by two justices of Stowe; a copy of which order certified by the justices making it, it was admitted on the trial, was delivered by the town of Stowe, by one of the citizens of said Stowe to the overseer of the poor of said Brook-field. Whether such citizen had any special authority from either of said justices to deliver the same was not shown, but no question as to such authority was made on trial. It appeared, that this copy was thus delivered within the thirty days from the date of the said order; that the paupers were not removed under this order, nor was there any appeal taken from the same.\\nThe County Court, June Term, 1853, \\u2014 Peck, J,, presiding,\\u2014 on the facts, decided as matter of law, that the paupers were duly removed.\\nExceptions by defendants.\\nPeck Colby for defendants.\\nWe submit that the paupers have acquired a settlement in Stowe, under the 8th article of the Act of 1817, (Comp. Stat., 128,) which provides, that if \\u201c any person having a settlement in any town in \\u201c this state and of full age, who shall hereafter reside in any other \\u201c town for the term of seven years, and during said term shall \\\" maintain himself and family and not become chargeable to either \\\" of said towns, shall gain a settlement in the town in which he \\\"may so reside.\\u201d\\nThe case shows, that the paupers had a settlement in Brookfield. That he removed to Stowe and there resided for more than seven years with his family without becoming chargeable to either of said towns. This fixes the settlement in Stowe, unless the order of removal made in 1848, is to be regarded as interrupting the residence. That order was made on the ground that the paupers were lilcely to become chargeable, and just before the seven years had expired, but was never executed. These facts show, beyond all question, that the order was made, not on the ground of any apprehension that the paupers would soon become chargeable in fact, but with the view of preventing their residence ripening into a settlement. Can it have that effect ? An order unappealed from is conclusive upon the towns as to all facts found by the order, as they existed at the time the order was made.\\nIn this case, the order finds that the paupers\\u2019 settlement was in Brookfield, and that they were lilcely to become chargeable. The settlement at the time the order was made was in Brookfield; but the paupers were acquiring by residence a settlement in Stowe. The order did not affect that residence. They continued to reside in that town until the seven years had expired, supporting themselves. A removal in fact, whether under the order, or for other reasons would of course have interrupted the residence. So if the order had found that the paupers had become chargeable, that would have prevented the residence conferring a settlement.\\nThe statute does not provide that if the paupers are poor and lilcely to become chargeable, a seven years residence shall not give a settlement. The statute,in this particular, does hot distinguish between the rich and poor. No matter how rich or poor a man is, if he resides seven years in a town without becoming chargeable, and supports himself and family, he gains a settlement. How then on principle can an order of removal based on the fact that a person is likely to become chargeable affect the residence?\\nThe act of 18.17, also provides that if a person holds for two years certain offices in a town, that, shall confer a settlement. \\\"Would an order like the one in the present case made while an individual was holding such office prevent his obtaining a settle ment under this provision of the statute ? This would hardly he claimed, and yet it is difficult to see why its effects should not he as potent in one case as in the other. Salem v. Andover, 3 Mass. 436. Rex v.Inhabitants of Filloughly, 1 Term 709. Berkeley v. Taunton, 19 Pick. 480. Standish v. Gray, 6 Shepley 92.\\nAll that is necessary to gain a legal settlement, by seven years residence, is, that' the pauper should have* his permanent domicil for seven consecutive years, in the second town and keep himself and family from becoming chargeable to either town. Tunlridge v. Norwich, 17 Yt. 493.\\nGeo. Wilkins for plaintiffs.\\nThe only question made or presented by the bill of exceptions, in this case, is as to the effect of the order of removal made in September, 1848, which was duly served, and from which no appeal was taken by the town of Brookfield.\\nI. It is insisted, that the effect of that order, made, served, and unappealed from as it was, not only fixed the settlement of the pauper, Smalley, in the town of Brookfield, at the time it was made beyond all further dispute and litigation, but suspended the effect of the continued residence in the town of Stowe, for the purpose of acquiring a settlement therein, for such a length of time at least, as was given to that town by law, to notify the adverse party of its proceedings.\\nThat an order of removal, properly served and unappealed from, fixes the settlement of the pauper in the town to which the order is made just as conclusively as an express adjudication on the subject, is a proposition so well settled, that authorities are not required to support it. Marshfield v. Calais, 16 Yt. 598. Brain-tree v. Westford, 17 Yt. 141.\\nIf the doctrine, insisted upon by the defendants, be correct, then in no case can an order of removal amount to any thing when the pauper has not become chargeable, unless an actual removal is made within seven years from the commencement of the residence.\\nBut we insist, that when the order of removal was made, the effect of the pauper\\u2019s residence for the purpose of acquiring a settlement in the town of Stowe, was superseded, at least, for the length of time within which a certified copy must be delivered-to the overseer of the town of Brookfield. And that the effect of the residence being interrupted, no matter for how short a time, a residence of seven years after such interruption would be required to gain a residence in the town of Stowe. Had the pauper been actually removed to the town of Brookfield, though he had returned to Stowe, the next hour, it would be at once admitted, that this would be such an interruption of the residence as would prevent the paupers acquiring a settlement in Stowe. Sex v. Inhabitants of Kenelworth, 2 Yes. 598. Sex v. Lund, 18 Law Journal, cited in 7 Harrison\\u2019s Digest 1154.\\nII. The case finds, that the pauper did actually become chargeable to the town of Stowe, before he had resided| there seven years.\\nTo prevent his acquiring a settlement in the town so as to fix it with the liability of bearing the burden of their relief, which the adjudication of the justices determined he was likely to need at some future time, the town of Stowe was under the necessity of subjecting itself to the expense and charge of procuring an order of removal to the place of his legal settlement; and by putting the town to this necessary expense, the pauper became chargeable, or the subject of expense and charge.\", \"word_count\": \"1989\", \"char_count\": \"11214\", \"text\": \"The opinion of the court was delivered by\\nBedeield, Ch. J.\\nIt has always been considered that an order of removal notified to the town, to which the order is made, within thirty days, according to the statute, conclusively fixed the settlement of the pauper, unless appealed from. It is the same as any other judgment, as to its conclusiveness ; and in addition to the force of other judgments inter partes, it has the effect of a judgment in rem, as to the settlement of the pauper, as to other towns, in the state. And as to the parties certainly, it w'ould not be competent to defeat its effect, by showing fraud even in its procurement. And I have not been able to find any case, where its binding effect, in regard to settling the question of the pauper's legal settlement has been made to depend, at all,.upon the actual removal of the pauper. For some purposes this is made indispensible to the full effect of the adjudication, as for instance enabling the town making the order, to recover expenses, incurred in support of such pauper while unable to be removed. But for general purposes the order itselfj if regularly made, and notice is properly served, upon the adversary town, and no appeal is taken, is conclusive. Dorset v. Manchester, 3 Vt. 370. Rupert v. Sandgate, 10 Vt. 278. Fairfield v. St. Albans, Brayton 176.\\nWhere the copy of the order of removal'is properly served upon the adversary town, according to the requisitions of the statute, the appeal must be taken to the next term of the county court, and if not so taken the adjudication has been held to have become so far conclusive, as to preclude any appeal from the actual removal. While if no such copy of the order shall have been seasonably served, upon the adversary town, an appeal may be taken, whenever it is served, or when the actual removal is made, if that is the first opportunity which they have had to appeal. Dorset v. Rutland, 16 Vt. 419. Marshfield v. Calais, id. 598. Braintree v. Westford, 17 Vt. 141. Landgrove v. Pawlet, 18 Vt. 325.\\nFrom all which, we conclude, the proceedings in this case must be regarded as conclusive of the settlement of the paupers at its date irrespective of the anterior facts in the case, and that to change the .settlement, by residence, that must be taken into the account only, which is subsequent to the order, in point of time.\\nJudgment affirmed.\"}"

vt/4439466.json

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+"{\"id\": \"4439466\", \"name\": \"Charles Backman v. Edward Mussey\", \"name_abbreviation\": \"Backman v. Mussey\", \"decision_date\": \"1859-01\", \"docket_number\": \"\", \"first_page\": \"547\", \"last_page\": \"551\", \"citations\": \"31 Vt. 547\", \"volume\": \"31\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T20:26:35.102144+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Charles Backman v. Edward Mussey.\", \"head_matter\": \"Charles Backman v. Edward Mussey.\\nContract. Intoxicating liquor.\\nD., the agent of the plaintiff, who was a liquor dealer in New York, received in this State from the defendant, who had no authority to sell intoxicating liquor, an order for a quantity of such liquor. B. sent this order to the plaintiff, who forwarded the defendant the liquor. 4-t the same time B. informed the defendant, and it was so understood between them, that the latter could order directly from the plaintiff in New York any liquors he might thereafter want. Such orders were from time to time sent by the defendant to'the plaintiff, and the liquors so ordered were sent to the defendant, who received them in this State at a railroad station, and paid the freight upon them from New York; Held, that the plaintiff could recover for all the liquors furnished upon orders sent him directly by the defendant, hut not for those furnished upon the order sent through B,\\nBook Account. The auditor reported the following facts:\\nThe plaintiff was, when his account accrued, a liquor dealer doing business in the city of New York, and the defendant, during the same time, was a tavern keeper in Middlebury in this State. The plaintiff\\u2019s account was for spirituous and intoxicating liquors furnished the defendant, and sold by him at his tavern in violation of the statute of 1852, and the subsequent acts on that subject.\\nIt appeared that in May, 1856, one Drew, the plaintiff\\u2019s agent, called on the defendant in Middlebury, and wished to furnish him with a supply of spirituous liquors for his tavern ; that the defendant consented that Drew might order a quantity of liquor for him, and gave him a list of the kinds he then wanted; and that these were ordered by Drew and duly received by the defendant, amounting to three hundred and twenty-six dollars and sixty-three cents, and constituting the first item in the plaintiff\\u2019s account. The defendant was at that time informed by Drew, and it was so understood between them, that the defendant could order directly from the plaintiff any liquors he might subsequently want; and orders for liquors were afterwards from time to time sent by the defendant to the plaintiff at New York, without specifying any particular mode of conveyance by which they were to be sent, in pursuance of which the liquors, constituting the remainder of the plaintiff\\u2019s account, were sent from New York by common carriers, and were received at the railroad depot at Middlebury by the defendant, who paid the freight and charges on them from New York.\\nDrew was fully informed from the first what the defendant\\u2019s business was, and to what use the liquors were to be put, but it did not appear that the plaintiff himself had any knowledge in regard to these points.\\nThe account presented by the plaintiff contained several credits for money paid by the defendant at different times, subsequent to the defendant\\u2019s receipt of liquor upon the first order sent by him directly to the plaintiff at New York, the whole amount of which credits, however, was less than the price of the liquors sent the plaintiff by the defendant upon such orders. The whole amount of the plaintiff\\u2019s account, including the three hundred and twenty-six dollars and sixty-three cents ordered of Drew at Middlebury, was nine hundred and sixty-eight dollars and twenty-eight cents, and the amount of the credits was five hundred and fifty-seven dollars and fifty cents.\\nIt did not appear whether the parties intended that any of these payments should be applied upon the first item of the account or not, but it did appear that at the time the liquors were purchased, both parties understood that they were sold upon a credit.\\nUpon these facts, as reported by the auditor, the county court, at the June Term, 1858, \\u2014 Bennett, J., presiding, \\u2014 rendered judgment for the defendant, to which the plaintiff excepted.\\nE. R. Hard and J. French, for the plaintiff.\\nThe plaintiff is at least entitled to recover the amount of his account against the defendant, deducting the first item, ordered through Drew.\\nThe validity of a contract is to be determined by the law of the place where the contract is made. If valid there, it is valid and will be enforced elsewhere.\\nA very few exceptions have been established to this rule on account of public policy, but none of them embrace this case; Holman v. Johnson, 1 Cowper, 341; Brown v. Duncan, 21 E. C. L. 29; Johnson v. Hudson, 11 East 180; Hodgson v. Temple, 5 Taunt. 181; Case v. Riker, 10 Vt. 482; Territt v. Bartlett, 21 Vt. 184; McConihe v. McMann, 27 Vt. 95; Backman v. Wright, 27 Vt. 187; Pelicat v. Angel, 2 C. M. & R. 311; Merchant\\u2019s Bank v. Spaulding, 12 Barb. 302; McIntyre v. Parks, 3 Met. 207.\\nThe sale of spirituous liquors is valid by the laws of the State of New York (and is not in itself immoral or reprehensible) ; and the contracts for the liquors charged in the plaintiff\\u2019s account, subsequent to the first item, were made and completed in that State.\\nThe property was delivered in New York, in pursuance of orders sent there to the plaintiff by the defendant, and there is no pretence that the plaintiff personally participated in any sale in this State.\\nThe fact that the defendant understood from the plaintiff\\u2019s agent, that he (the defendant) could order liquor directly from the plaintiff, does not invalidate the sales or render them any the less New York transactions. It was a piece of information communicated to the defendant which he might act upon or not, as he chose, and which was entirely separate and distinct from the contracts. It had no connection with the proposals made by the defendant and their acceptance by the plaintiff, which constituted the sales.\\nIf the understanding between Drew and the defendant was any part of the contracts, it would follow that if the plaintiff had no^ forwarded the liquor on the orders sent by the defendant, it would have been a breach of the contract, and this will not be claimed.\\nBriggs & Nicholson, for the defendant.\\n1. The contract of sale of all the liquors in this case was made in Vermont, and is invalid. All the liquors were obtained under a general contract with Drew, and no new contract was made with the plaintiff. The contract was \\u201c that the defendant could order directly from, the plaintiff any Uguors he might subsequently want.\\u201d The orders sent to the plaintiff involved no new contract, but were sent in pursuance of the general continuing contract with Brew; Bachman v. Wright, 21 Vt. 187.\\n2. But if this were not so, the plaintiff can not recover upon the first item charged in his account of three hundred and twenty-six dollars and sixty-three cents. The liquors constituting this item were sent in pursuance of a contract made with Drew personally, and in this State, And Drew was the plaintiff\\u2019s agent; Backman, v. Wright, 21 Vt. 187.\\nThe payments were made to apply on the account generally, and no specific application was made by either party.\\nThe court will apply these payments first, in extinguishment of that portion of the account which constitutes a legal debt. This doctrine is fully settled in the concluding paragraph of the opinion of the court in the case above cited; Backman v. Wright, supra; Bancroft et al. v. Dumas, 21 Vt. 456; Wright v. Laing, 3 B. & C. 165.\", \"word_count\": \"1603\", \"char_count\": \"9216\", \"text\": \"Poland, J.\\nAll the points made in. this case seem to be decided in the case of Backman v. Wright, 21 Vt. 187.\\nThe contract for the first bill of liquors charged in the plain tiff's account was so far made in this State, though consummated by a delivery without the State, as to be invalid here.\\nThe residue of the liquors charged in the plaintiff's qccount, were forwarded to the defendant by the plaintiff from New York, in answer to orders sent to him by the defendant, by common carriers, the defendant paying the charges for freight.\\nThis alone would constitute a contract of sale, and a delivery to the defendant in New York, where such a sale would not be illegal. The defendant claims that the facts reported by the auditor show that the contract, or some portion thereof, was made in this State between the defendant and Drew, the plaintiff's agent. But we think this claim is not well founded. It would seem that the defendant learned from Drew that the plaintiff was a liquOr dealer in New York, and that he could procure liquors of him by sending his orders to him, but it does not appear that anything in the nature of a contract was made between them; that Drew contracted to sell any liquors to the defendant, or that the defendant agreed to purchase any, or that Drew agreed that if the defendant sent orders to the plaintiff they should be answered, or that he should have any liquors he ordered at certain fixed prices, or on any specified time of credit. In short, it does not appear that it amounted'to anything more than information to the defendant that if he wanted more liquors he could get them by sending orders to the plaintiff.\\nThe plaintiff then should have been allowed to recover his account, except the first bill, after deducting the payments.\\nThe judgment is therefore reversed, and judgment rendered for the plaintiff for the balance due him, disallowing the first bill charged in his account.\"}"

vt/4443445.json

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+"{\"id\": \"4443445\", \"name\": \"Moses Spear v. The Town of Lowell\", \"name_abbreviation\": \"Spear v. Town of Lowell\", \"decision_date\": \"1874-03\", \"docket_number\": \"\", \"first_page\": \"692\", \"last_page\": \"701\", \"citations\": \"47 Vt. 692\", \"volume\": \"47\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T17:24:22.594996+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Moses Spear v. The Town of Lowell.\", \"head_matter\": \"Moses Spear v. The Town of Lowell.\\nHighway.\\nThe fact that a highway surveyor does not immediately proceed in the attempt to render a highway passable and safe for travel, when it has suddenly become impassable and unsafe, is not conclusive upon the question of his negligence. The question\\n' is, whether such attempt would be successful if made; and in this respect the statute must receive a reasonable construction; and where it is evident that such attempt would be fruitless, it would be unreasonable to require it to be made. Thus, as bearing upon this question, where the highway upon which the injury was received, and others in the town, were suddenly rendered impassable and unsafe by reason of the thawing of the snow, which commenced on Saturday and continued during the Sabbath, the town up to the time of the thaw being in no fault in not having kept the snow cleared from the roads, it was held admissible for the town to show the condition of the roads at the time, and the number of miles of road the town was bound to maintain and keep in repair, and the number of the inhabitants in the town.\\nHeld, also, there being no such conflict in the testimony as to entitle the plaintiff to go to the jury upon the question, that it was not error for the court to rule as matter of law, that neither the officers nor the inhabitants of the town, were bound to bestow labor upon the highway in question on the Sabbath.\\nCase for damage on a highway. Plea, the general issue, and trial by jury, December term, 1872, Peck, J., presiding.\\nThe plaintiff gave evidence tending to prove, that on the 29th of March, 1869, he was passing over a highway in the town of Lowell, in a sleigh drawn by one horse, when, by reason of the deep snows that had fallen and been suffered to remain in the highway, and by reason, of the drifts of snow which had filled the road, and been suffered to remain without being shoveled out or otherwise removed, and by reason of a thaw which had commenced on the 27th of said March, whereby the snow in said highway had become soft, the horse of the plaintiff broke in, and slumped in the snow and snow-drifts, to such an extent that it was unable to proceed, or extricate itself from the snow and snowdrifts, and thereby became injured and wounded in its legs, and the plaintiff by reason of his exertions and exposure in attempting to extricate the horse, became greatly injured in his person and health; that the average depth of snow in the part of the town where this road was situated, was, upon the level, from four to five feet, for the distance of four or five miles, and that that was about the average depth of snow in the town, and that it was nearly that depth all that distance, in the travelled road, and that at the point where the horse received its injury, the snow had drifted into the road so that it was from four and a half to five feet deep where the travel went; and that during all that winter up to the time of the accident, the snow had not been shoveled out, and in no way removed, or attempted to be removed, from the road, except by passing over it after a storm, with a sled, with a plow attached to the sides of the sled, thus throwing snow out of the travelled track, and that it had been so plowed out from one to three times a week during the snow season, as the defendant\\u2019s evidence tended to show. The plaintiff\\u2019s testimony showed that it was not new or loose snow that rendered the road unfit for travel; that he went from Orange county, where he resided, and passed over this road on the Saturday before the accident, and the road was then safe for travel, and a good track for travel beaten, except the thaw had so far softened the snow in the road-bed, that in one place, for a short distance, his horse slumped into the snow track, but not to much extent, and that but for the effect of the thaw, the road would have been in safe condition for travel at the time in question ; that the 27th of March was Saturday, and on Sunday, the following day, the thaw increased still more, and the plaintiff was desirous of proceeding on his journey home, which fact was known to some of the people of Lowell; that he stayed over the day on Sunday, on account of the bad condition of the roads, and about one o\\u2019clock in the morning of Monday, the weather having grown colder, and the snow having to some extent become frozen, he started, and had proceeded about three miles, when he met with the injury complained of.\\nThe defendant introduced testimony tending to prove, that there was an unusual depth of snow generally, in that region that winter, and that it would have been oppressive, impracticable, and unreasonable for the town to have been compelled to keep its roads cleared from snow, so that it would not have obstructed the travel jn case of a great and rapid thaw, like the one in question ; and in this connection, among other things, the defendant offered to show the number of miles of road in the town, and the number of people in the town, and the amount of the grand list of the town that year, for the purpose of showing its pecuniary inability to keep its roads unobstructed byjsnow, and that the town had used due diligence in that respect, according to its property and pecuniary ability, and the number of the inhabitants, and the great extent of highways it had to support. To this evidence the plaintiff objected, and the court excluded the same, remarking that the statute, in terms, provided that towns shall keep their highways in good and sufficient repair at all. seasons of the year, and that the duty and liability of a town under this statute, could not be made to depend on the pecuniary ability of the town, and could not be evaded by proof of this kind, but that there might be cases where, notwithstanding the absolute and unqualified language of the statute, by some sudden action of the elements, the highways throughout the town, although up to that time kept in good and sufficient repair, might be rendered unsafe for travel, and rendered so temporarily, by a cause which the town could not control, and for which it would not be responsible; and in a season of great depth of snow, generally, throughout the town and region, sudden softening by a great and rapid thaw, might make a case of this kind; that towns were not bound to perform impossibilities, or do what was impracticable, but that it was the duty of the town to have kept its roads so broken out and cleared through the winter and spring, as not only to keep them in good and sufficient repair and reasonably safe for travel during the winter and freezing weather, but in doing so, to do it in such a manner as to reasonably guard against the effects of a rapid and sudden thaw, in softening the snow, and thereby rendering the roads dangerous or unsafe for travel, and that, if it was by the neglect of this duty on the part of the town that the thaw rendered the roads unsafe for travel, the town would not be excused from liability upon the ground that the thaw was so rapid and extensive that it was impracticable after it commenced, to have prevented its rendering the roads unsafe for travel, or for the town to have restored the roads to safe condition for travel; and the court stated to counsel that the court should so charge, and the court, among other things, did so charge the jury.\\nThe defendant introduced evidence tending to show, that the town had, through the winter and spring, kept its roads plowed out, and the snow properly removed therefrom, and had done its duty in that respect, and that the rapid and sudden thaw that commenced on said Saturday, and continued through the day on Sunday, so softened the snow as to render the roads throughout the town, and the road in question, unsafe for travel to such an extent that it was impracticable to prevent that condition of the roads, or to have remedied it, or restored them to a reasonably safe condition for travel.\\nThe evidence showed that the plaintiff remained at Lowell village, at the hotel, on Saturday night, and through the day Sunday, and until about one o\\u2019clock Monday morning, when he started for home over the road in question ; that he attempted to start sometime during the day Sunday, and was advised by some of the citizens of Lowell, that on account of the thaw, the road was so bad he could not get along, and that he had better not start till the weather changed to freezing, and that he did stay till about one o\\u2019clock Monday morning, sitting up, watching to see if the snow would freeze so he could travel; that on Sunday evening the weather grew some cooler, so that at eleven o\\u2019clock, the thermometer was six degrees below freezing, but at that time stopped falling, and went no lower, up to the time, at least, when the plaintiff started for home. The evidence on the part of the plaintiff also tended to show, that the snow was a little frozen when he started, and that he was advised by the innkeeper that he thought he could go if he could get over a flat piece of ground not far from the village where he was.\\nThe evidence on the part of the defendant also tended to show, that the plaintiff was not so advised, but that he was advised just before he started, by a citizen of Lowell, that he could not get along and that he better not start; and that the snow was not frozen when the plaintiff started, although a little stiffened.\\nAs bearing upon the question whether it was impracticable for tbe town, after the thaw commenced, to have kept its roads from being thus rendered impassable by reason of the thaw, the defendant offered to show the number of miles of road in town which the town had to support, and the number of inhabitants in the town, at the time in question, \\u2014 to which the plaintiff objected, but the court admitted the same ; to which the plaintiff excepted. Witnesses then testified that the population was about 900, and the town had about 70 miles of highway to maintain and keep in repair.\\nThe defendant\\u2019s counsel requested the court to charge the jury, that the town officers or its inhabitants were not bound to work repairing the road on that Sabbath, because it was the Sabbath. In reference to this, the court told the jury that there might be occasions of a highway being out of repair and in a dangerous condition, when it would be the duty of the town officers or citizens to repair it on the Sabbath, as a work of necessity, but'that it would depend on the circumstances of the case; that as applicable to this case, under the circumstances disclosed, the court thought that the officers or inhabitants were not bound to have turned out to repair the road on that Sabbath; to this the plaintiff excepted.\\nThe defendant introduced evidence tending to show, that the road in question was in good and sufficient repair, and in safe condition for travel, up to and at the commencement of the thaw, and until the thaw had rendered it otherwise. The defendant did not claim that the highway at the time was in such condition as to be safe for travelling, but admitted that it was not, but claimed that the town was not liable to damage, in consequence of the great depth of snow and the sudden thaw which softened the snow and made the roads impassable.\\nThe plaintiff presented to the court several written requests to charge the jury, and by the second request the court was requested to charge and instruct them as follows: \\u201c That the snow having been suffered to accumulate, so that a sudden thaw would render it impassable, and so that the accumulation of snow would and did obstruct the travel, it was the duty of the highway surveyor, or of those in whose immediate care this road was placed, to forth with cause the obstructions to be removed; and that the delay which the evidence shows, was unjustifiable\\\" \\u2014 that the force of the district should have been put upon the road forthwith, when the thaw began, and the impassable condition of the road was imminent, threatening, and impending.\\u201d The court refused to so charge; to which the plaintiff excepted. Verdict for the defendant.\\nWm. & S. B. Hebard, for the plaintiff.\\nThe defendant admitted that the road was insufficient and out of repair, but claimed to be exonerated from the consequences and liabilities of such insufficiency, by reason of its inability to keep it in repair. \\u201c All highways and bridges within the bounds of any town, shall be kept in good and sufficient repair, at the expense of such town, at all seasons of the year.\\u201d Gen. Sts. ch. 25, \\u00a71. This duty is unqualified and unlimited; and nothing appears in this case which should make it an exception. It was the duty of the town, or of the highway surveyor, to proceed immediately, as soon as practicable, to remove the obstructions from the road with the force and means at its or his control and immediate command. Qlarh v. Oorinth, 41 Vt. 449.\\nThis town was in fault in suffering the snow to accumulate in the highway to the depth of five feet. From the case, it appears that the snow in the road was nearly as deep as at the sides of the road. This constitutes an insufficiency in the road, and one for which the town is liable. Green v. Banby, 12 Vt. 338.\\nThe court erred in not instructing the jury upon this point. Upon this request, the court gave no instruction, but simply declined to charge as requested. Is there any doubt that \\u201c it was the duty of the highway surveyor to forthwith cause the obstructions to be removed ?\\u201d Cases supra. But at any rate, we were entitled to some instructions on that point.\\nThe court gave the jury no instructions in relation to the duty of the town in keeping this road unobstructed through the winter, and in this there was error. We claim that it was the duty of the town to have prevented the snow from accumulating to the depth of five feet on this road, and that the court should so have instructed the jury.\\nThe court erred in allowing the defendant to show the number of miles of roads in town, and the number of inhabitants, as bearing upon the question of the town\\u2019s ability to keep its roads in repair. This showing was admitted under objection, and suffered to go to the jury without any instructions from the court; and what view the jury took of it, we have no means of knowing. The defendant had before this offered the same .testimony, and the court excluded it. The doctrine then laid down by the court, we submit, is the true doctrine, and the court erred in admitting the same testimony afterwards. It is not denied that there may be cases when a town, within a given time, could be required to remove obstructions. But there is no case when a town would be excused till it had attempted to remove the obstructions, after being notified. Clark v. Corinth, supra.\\nThe defendant claimed, and requested the court to charge, that towns are not bound to repair their roads on the Sabbath. How far towns will be held to be bound to work on the Sabbath in repairing their roads, may, to some extent, depend upon circumstances. But that there are such cases the court told the jury. Was this one of those cases ? We claim that it was. But whether it was or not, was a question of fact, and not a question of law, and one that should have been submitled to the jury. But we submit that as matter of law, the court should have told the jury that the statute was imperative upon towns, and made it their duty whenever their roads became impassable, to turn out without delay, and put them in a safe condition.\\nOrin G-ambell, Jr., and Benton, Hill, Cross, for the defendant.\\nThe first exception in this case relates to the admission of the testimony showing the number of inhabitants and the extent of the highways in the town. This was not admitted upon the question of the measure of sufficiency required by the statute in the general maintenance of highways. On this point, the evidence was excluded. The evidence of amount of grand list was wholly excluded. In that exclusion, and the charge on that point, the court fully held that the ability of the town was no measure of the sufficiency or goodness of its roads, as required by statute. On this the court did all the plaintiff had a right to ask, even under the rule laid down in Winship v. Enfield, 42 N. H. 197. The evidence was admitted as bearing upon the duty of the town, under the emergency of the thaw. Under the charge as detailed, the jury have found that in the general maintenance of the road during the winter, and down to the commencement of the thaw, the town was guilty of no fault \\u2014 that the road was in \\u201c good and sufficient repair\\u201d with reference both to the safety of travel at the time, and such softening of the snow as might be expected from a rapid and sudden thaw. This was all found independently of the testimony in question. There the question arose as to the duty of the town in the sudden emergency of the thaw. In such case, the law does not demand the instant reparation of the injury; but only the exercise of due diligence. Briggs v. Guilford, 8 Yt. 264 ; Ozier v. Hinesburgh, 44 Yt. 220 ; Ward v. Jefferson, 24 Wis. 342.\\nWhat is reasonable diligence, depends on the peculiar circumstances of each case. Among the elements to be considered, are the amount of damage occasioned in the emergency, and the ability of the town to repair it. Briggs v. Guilford, supra. These are precisely the .points covered by the testimony in question. The test was, whether, by the exercise of reasonable diligence, the town could, within the time, remove the insufficiency occasioned by that thaw. Towns are not bound to perform impossibilities. Prindle v. Eletcher, 39 Yt. 255.\\nThe second exception is to the charge that, under the circumstances, the town was not bound to repair the road in question on Sunday. The statute forbids work on that day, except works of necessity : and the question here is, whether the repair of that road was such a work of necessity as to come within that exception. What the statute really means by a work of necessity is, such work as is necessary to prevent irreparable injury or destruction of property.\\nThis case is not at all one of that kind in which any mischief could arise from the delay, other than the ordinary hindrance of travel. Lyon y. Strong, 6 Yt.. 214 ; Smith v. Watson, 14 Vt. 332; Lovejoy v. Whipple, 18 Yt. 379; Adams v. Gray, 19 Yt. 358. The plaintiff\\u2019s request was for the court to direct the jury as to matters in which they were the judge. There is no fixed rule of law that determines when and how a town is bound to go to work to repair a highway. Those are matters of fact, and are the very questions of experience and practice that belong exclusively to the jury.\", \"word_count\": \"4028\", \"char_count\": \"22181\", \"text\": \"The opinion of the court was delivered by\\nRoyce, J.\\nNo exception was taken to the charge of the court, and under the charge, the jury must have found that down to the time of the commencement of the thaw on the 27th of March, the town had discharged its entire duty in reference to this highway. The exceptions taken were to the rulings of the court upon questions relating to the duty of the town after the thaw had commenced. No question seems to have been made but that the highway in question was unsafe for public travel at the time of the happening of the accident to the plaintiff; and the liability of the town for the consequences of the accident, must depend upon whether the town was negligent in permitting the highway to remain in that unsafe condition. The duty of highway surveyors, as defined in ch. 25 of the Gen. Sts., has frequently been the subject of judicial examination ; and in Clark v. Corinth, 41 Vt. 449, the court held, that whether the surveyor was in fault or not, depended upon the question whether, by diligently using the means at his command or within his reach, he could have put a force immediately upon the road which was competent to make the necessary repairs after the injury to the road and before the accident happened ; so that the fact that the surveyor does not immediately proceed in the attempt to make a highway passable and safe for travel over it, is not conclusive upon the question of his negligence. The question is, whether such attempt could be successful if made. There may be cases, and from the evidence as detailed this was probably one, where the surveyor would not be required to make an immediate attempt to make the highway safe for travel. The statute must receive a reasonable construction; and where it is evident that any such attempt would be fruitless, it would be unreasonable to require it to be made ; and as bearing upon the question of the duty of the surveyor, we think it was competent to show the condition of the highway in question, and the nature and extent \\u2022 of the work required to be done upon it; and as explanatory of the means at his command, or within his reach, it was permissible to show the number of miles of road, and their condition, which the town was required to maintain, and the population of the town. We perceive no error in the ruling of the court upon the question of the obligation of the officers or inhabitants of the town to have turned out and repaired this road on the Sabbath. There was no such conflict in the evidence as entitled the party to the judgment of the jury : and it was competent for the court, as the question was presented, to rule upon it as a question of law ; and it may well be questioned whether, under our statute enforcing the observance of the Sabbath, towns would ever be justified in bestowing labor upon their highways on that day, to merely facilitate travel over them. It would seem that such labor only became a necessity when necessary to avoid impending danger to life or property. For reasons already given, the plaintiff was not entitled to the charge asked for in his second request. Neither can we notice the objection made in argument, that the court neglected to charge upon the subject-matter of this request; because, if there was such neglect, no exception appears to have been taken to it; and if we were to make any presumption, it would be that the court gave such instructions to the jury upon the subject as the case required.\\nJudgment affirmed.\"}"

vt/4445322.json

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+"{\"id\": \"4445322\", \"name\": \"VEILE and Wife v. BLODGETT and Wife\", \"name_abbreviation\": \"Veile v. Blodgett\", \"decision_date\": \"1877-01\", \"docket_number\": \"\", \"first_page\": \"270\", \"last_page\": \"282\", \"citations\": \"49 Vt. 270\", \"volume\": \"49\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T17:28:31.120015+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"VEILE and Wife v. BLODGETT and Wife.\", \"head_matter\": \"VEILE and Wife v. BLODGETT and Wife.\\n[In Chancery.]\\nEffect of Answer as Evidence. Right of Cestui Que Trust to Follow Trust Fund.\\nThe oratrix, while an infant, and before her intermarriage with the orator, inherited money which her father and guardian, the defendant B., received and paid, without consideration, to a brother of the defendant wife, for her benefit, with an understanding that it was to be paid for certain premises that she was then about to and subsequently did, purchase, using said money in paying therefor, and taking the title thereof, in her own name. Defendants afterwards intermarried, and separated. Orators brought suit at law against defendant B. for\\u2019said money, and attached said premises, which had been mortgaged by his wife before marriage, and procured a part of the equity of redemption therein to be set off on execution as the estate of B. There was a question as to whether or not one of the appraisers in such proceedings was a freeholder. The orators then filed a bill to perfect their title under the levy, and to compel defendants to release their interest in the land. B. testified that he loaned said money to his wife before marriage. Reid, that as B. had no right to loan the money; as the loan was not legalized by his marriage; as the wife, standing on B.\\u2019s right, could acquire no right to a homestead out of the trust property; and as the relation of the wife to the money and the property purchased therewith, was that of a mere volunteer, \\u2014 she was charged with a constructive trust in favor of the oratrix; and that, as no proceedings at law were essential to the attainment of the orators\\u2019 rights, and as whether or not one of the appraisers was disqualified was therefore unimportant, equity would give the relief sought.\\nThe answer is evidence only where it is a clear, positive, and direct denial of the allegations of the bill.\\nTo overcome the evidence of such an answer, it is necessary that there should be only enough evidence to outweigh it, the answer being equivalent to the deposition of one witness.\\nAppeal from the Court of Chancery.\\nThe bill alleged that the orator and oratrix were husband and wife, that the oratrix was the daughter of the defendant Luther P., and that before she arrived at her majority, and before her intermarriage with the orator, she inherited and became lawfully entitled to the sum of $3500 ; that afterwards the said defendant was appointed her guardian, and as such received said sum of money, and that he had never paid nor in any manner accounted for it, nor settled his guardianship account; and that at the time of the judgment thereinafter mentioned, he was justly indebted to the oratrix by reason of his receipt of the said money in the sum of $1,918.75 ; and that the same remained wholly unpaid unless paid by the set-off of real estate thereinafter mentioned ; that.on June 9,1865, one Mary Ann Hinckley purchased and took in her own name a deed of certain land in the city of Burlington, with a dwelling house and out buildings standing thereon ; that the said defendant then or about then,' \\u201c paid in money towards the consideration \\u201d thereof, through one O\\u2019Grady, a brother of said Mary Ann, the sum of $2000, which was paid \\u201c wholly or mainly\\u201d with the money of the oratrix ; thaj; afterwards the said defendant and the said Mary Ann intermarried; that after their intermarriage the orators attached the said land, &c., intending thereby to create a legal lien upon the said Luther P\\u2019s interest therein, and by regular and orderly proceedings, procured judgment and execution thereon, and, the land having been mortgaged by the said Mary Ann, levied execution on part of the equity of redemption in said premises, as the proper estate of the said Luther P., and had it regularly set out in full satisfaction of their said execution, and procured the same to be recorded ; that, the defendants having separated, the defendant Mary Ann was, at the time of the filing of the bill and long had been in exclusive possession of the premises, claiming to be the sole owner thereof in fee to the exclusion of the orators ; and that the defendant Luther P. was at the time of the filing of the bill, and for a long time had been, insolvent and destitute of other property. Prayer, that said levy and set-off might be established as valid and effectual, and the orators\\u2019 title thereunder established ; that the defendant Mary Ann might be enjoined from impeding the orators in the enjoyment of the premises, and from setting up any adverse rights thereto ; that the defendants might be decreed to execute a full release of their right, title and interest therein to the oratrix ; and for general relief.\\nThe defendant Mary Ann answered, denying that the oratrix inherited $3,200 in her own right, and alleging that she inherited, as the defendant had been informed and believed, about- $700 which had been paid to her; admitting the purchase of the land, <fcc., as alleged in the bill, and alleging that before said purchase the defendant Luther P. solicited defendant Mary Ann to marry him, and as an inducement thereto assured her that he had a good salary in a government office, and owed nothing, and promised to give her the sum of $2,000 out of said salary; that relying upon said assurance and promise, and in consideration thereof, she agreed to marry him, and that in pursuance of said agreement the defendant Luther P. paid over to her brother the sum agreed upon, which she afterwards received and paid towards the said land, &c., but positively denying that the said Luther P. \\u201c paid any money to her for the purchase of said place out of any money belonging \\u201d to the oratrix, or otherwise than as stated in consideration of said promise of marriage ; admitting the marriage, but alleging that the defendant Luther P. deserted her, and that during the time they lived together she supported him, alleging that she had paid all the taxes on the premises, and had paid large sums for repairs, that she had a homestead right in said premises, of which no creditor could in any event deprive her, and upon which she insisted; that defendant Luther P. asked her before deserting her, to convey the property to him, that she believed that he and the orators confederated to get said property away from her, and that suit was brought against said Luther P. and judgment therein consented to by him in furtherance of that design ; that defendant Luther P. paid for education, board, and outfit of oratrix more than she inherited ; denying the legality of levy and set-\\u00f3ff, and alleging that one of the appraisers of the property was not a freeholder, that said judgment was collusive and fraudulent, that the $2,000 paid towards said property was not the identical money that she received from defendant Luther P., and insisting that if the money paid to her was not to be considered as a payment in consideration of her promise of marriage, or as an ante-nuptial settlement, it could be regarded only as a loan against which she had a legal right to set off all sums that she had paid for the defendant Luther P\\u2019s support, and that if the oiators had any legal right to said property, they had a complete remedy at law.\\nThe answer was traversed, and the testimony of the oratrix and of defendant Luther P. was taken, and tended to support the allegations of the bill, except that defendant Luther P. testified that he loaned the money to. defendant Mary Ann. No other testimony was taken on either side, but it was admitted that two of the appraisers were freeholders, that the third, one Tracy, was the husband of the owner in fee of a lot of land, and that he and his wife had lawful issue living at the time of said set-off.\\nOn the hearing at the December Term, 1875, before Piurpoint, Chancellor, it was ordered, adjudged, and decreed that the levy and set-off and the orators\\u2019 title thereunder be established as legal and valid ; that the defendant be perpetually enjoined from impeding or interfering with the use and enjoyment by the orators of the premises so set off, and from setting up or asserting any right or interest therein adverse to the rights of the orators under said set-off; and that the defendants within thirty days execute a valid quit-claim deed of the interest in the premises so set off to the oratrix. Appeal by the defendant Mary Ann.\\nJE. R. Sard, for the orators.\\nThe case is within the appropriate and exclusive jurisdiction of a court of equity. Rowany. Union Arms Oo. 36 Vt. 124, 138; Buck v. Gilson, 37 Vt. 653; McLane, admr. v. Johnson, 43 Vt. 48, 61; Eldridge v. Smith, 34 Vt. 484.\\nIf the identical money advanced by defendant Luther P. to defendant Mary Ann belonged to the oratrix, the defendant Mary Ann, by taking the conveyance to herself, became trustee for the oratrix to the extent of such investment, and the latter is entitled to relief independently of the attachment and set-off. Or if that identical money did not belong to the oratrix, but to the defendant Luther P., she, being his creditor, and having obtained judgment, and set off the land on execution, both the defendants being insolvent, is entitled to the relief sought, whether the money so furnished by defendant Luther P. is treated as an investment by him in the property, or as a loan to the defendant Mary Ann.\\nThe set-off on execution was in conformity with the statute.\\nTracy, being tenant by the curtesy, was a freeholder. 1 Washb.. Real Prop. 60, 61; 1 Cruise Dig. 147 et seq. But even if he was not a freeholder, queere, whether the levy would be voidable. Gen. Sts. c. 15, s. 13; Dcmforth v. Beattie, 43 Yt. 138. And if the want of freehold qualification would,, in any case, avoid a set-off, it is not available against the orators.\\nThe orators are entitled to the relief sought upon the facts stated in the bill. The bill states that $2000 was paid defendant Luther P. toward ihe consideration for the place, and that the money was wholly or mainly that of the oratrix; and as the answer of the defendant Mary Ann distinctly admits the receipt of the money by her, and the investment of it in the land, but denies the payment of any money to her for the purchase of said place out of any money belonging to the oratrix, or otherwise than as stated in consideration of promise of marriage. The answer is not responsive, because the bill does not allege that he paid the money to her. Treating the words \\u201c or otherwise,\\u201d &c., as a denial that the money was invested in the place, they are too general to be available as evidence. Story Eq. PI. s. 852 ; Woods v. Morrill, 1 Johns. Ch. 103.\\nThe answer being traversed, but a small part of it can be considered evidence in favor of the defendants, because it is not responsive.\\nAll that the answer contains relating to the pretended agreement between the defendants that the defendant Luther P. should pay her $2,000 as a consideration for her promise to marry him, should be excluded as evidence, because it is not responsive to anything stated, charged, or inquired about in the bill, but is purely affirmative matter set up in avoidance of the orators\\u2019 claim. 2 Dan. Ch. Pr. 840-3 and notes; Story Eq. PI. s. 849a; McDaniels v. B'arnum, 5 Yt. 279 ; Mott v. Harrington, 12 Yt. 199 ; Cannon v. Norton, 14 Yt. 178; Lane v. Marshall, 15 Yt. 58; Pierson v. Clayes, lb. 93 ; McDonald v. McDonald, 16 Yt. 630; Sanborn v. Eittridge, 20 Vt. 632; Busby v. Littlefield, 33 N. H. 76 ; Clark v. White, 12 Pet. 178; N E. Bank v. Lewis, 8 Pick. 113 ; Eldridge v. Smith, supra; Creen v. Hart, 1 Johns. 580, 589.\\nAlthough a statement in an answer is responsive to the bill, still, if it is improbable, it may be overcome by less testimony than might be otherwise necessary. No strained construction of the rule requiring more than the testimony of one witness to overcome a responsive statement in an answer, should be adopted in a case like this.\\nWales & Taft (Levi Underwood with them), for the defendants.\\nI. The orators come as the creditors of defendant Luther P., and if they have any title by virtue of the levy it must be his title. It is plain that he never had any title to the premises in question upon the orators\\u2019 own showing, without reference to the defence. A resulting trust did not arise, because the $2000 transaction was a loan. MoQue v. Gallagher, 28 Cal 51. From the orators\\u2019 showing it is apparent that it was not the understanding or expectation of the parties that defendant Luther P. should ever take any title. That is also fatal to the trust. White v. Carpenter, 2 Paige, 217, 238, et seq., 265; Jackson v. Fuller, 2 Wend. 465; Byers v. Danley, 27 Ark. 77 et seq.; Junnard v. Littell, 23 N. J. Eq. 264; Gledewell v. Spaugh, 26 Ind. 319. The $2000 transaction was not fraudulent as to creditors. The proof shows that defendant Luther P. was solvent .at the time, and even if he were not, his estate was not decreased thereby. \\u2022 A debt was due him.for the amount. Four years afterwards that debt was cancelled by the marriage and legally extinguished. Burleigh v. Cofin, 2 Fost. 118. Such legal extinguishment of the debt could not have given the defendant Luther P. any title to the premises. If the $2000 had been paid as a gift after the marriage, instead of as a loan in contemplation of marriage, as the orators\\u2019 case shows, no resulting trust in defendant Luther P. for the benefit of his creditors would have been created even if he had then been insolvent. Wheeler v. Kirtland, 23 N. J. Eq. 16 et seq. The fact that it is alleged that the $2000 was the money of the oratrix does not help her case. If that was so, with proper notice the loan would have created a debt from the defendant Mary Ann to the oratrix. No resulting trust would have been created for the reasons before stated, and if such trust did result it would result to the oratrix and not to defendant Luther P. Bussell v. Allen, 10 Paige, 249.\\nII. The answer of defendant Mary Ann is responsive to the bill, and is therefore evidence in her behalf. The only evidence on the other side as to the $2000, is that of defendant Luther P., and upon this evidence the court must find that-the $2000 was paid upon the consideration mentioned in the answer. 1 Dan. Ch. Pract. 844 and note. In this view the $2000 was paid upon consideration of marri\\u00e1ge, which is a valuable consideration. 1 Chit. Cont. 27; Brown v. Slater, 16 Conn. 192.\\nSuch being the case, neither defendant Luther P. nor his creditors had any interest in the $2000 after it was paid, much less in the premises here claimed. \\\"Wheeler v. Kirtland, supra.\\nDefendant Mary Ann does not appear here as a person fraudulently trying to keep property away from creditors, for she had no notice of the orators\\u2019 claim. The fraud and collusion is all upon the other side, and consists in the collusion of the orators and the husband to cheat his deserted wife out of her estate in the interest of the surety on the guardian\\u2019s bond of the husband. A court of equity will not lend its aid in such a case unless the legal right is very clear.\\nIII. The levy in this case was void because one of the appraisers was not a freeholder, and the defendant may raise this question here because this is her first and only opportunity to do so.\", \"word_count\": \"5049\", \"char_count\": \"28098\", \"text\": \"The opinion of the' court was delivered by\\nPowers, J.\\nBefore proceeding to a consideration of the various points made in argument touching the claims of the orators to relief, it becomes necessary to ascertain precisely the facts that are established by the proofs.\\nThe defendant Luther P. makes no answer to the bill ; and he is the witness relied upon by the orators to establish their case. The other defendant, Mary Ann, filed an answer to the bill, but adduces no evidence in support thereof, and her defence thus wholly stands upon her answer. Her answer is traversed, and much has been said- in the case as to the effect that is to be given this answer as proof.\\nThe general rule in equity upon this subject, as has often been declared, is, that two witnesses, or evidence 'equal to that of two witnesses, is required to overcome the sworn answer of the defendant, responsive to the bill. Other authorities say the rule requires one witness with corroborating circumstances. The rule has its basis in the fact that the answer is called out by the orator for his own use. If it admits the fact charged in the bill to be true, the orator adopts this admission as sufficient proof of the fact. If the answer denies the fact charged, the orator is left to establish it by other moans, if he can, and at the same time the denial is evidence for the defendant. The denial is made evidence by the circumstance that the orator has called it out for the purposes of proof, and thereby made it proof.\\nBut the rule, as often announced, respecting the effect of the answer as proof, is, we think, misleading, as a careful examina- . tion of the authorities will slrow. The weight of evidence does not depend upon the number of witnesses that depose to given -facts. -The burden of proof, when an answer is responsive to the bill, devolves upon the orator to' satisfy the trier that such answer is untrue; and this burden may be oftentimes discharged by documentary proof or circumstantial evidence, without the deposition of any witnesses testifying to the facts set out in the bill. 2 Dan. Ch. Pr. 840, n. 2. '\\nIt is obvious that a sworn answer, responsive to the bill, stands as the deposition of one witness; and if encountered by only one witness testifying in contradiction, and no circumstances appear affecting the' case, no preponderance of proof is made out on either side, and the orator must fail because the burden of proof is upon him. But the answer, considered as evidence, is to be weighed precisely as it would be if it appeared in a deposition disconnected from the defendant's pleading; and the fact that the defendant is interested in the event of the suit, has the same effect in discrediting his story that it does in an ordinary case at law. Again, if the answer is evasive or equivocating, it lessens its force as evidence precisely as such circumstances impair the story of a witness told on the witness stand. In short, the answer, when used as evidence, is subject to the same proper criticism, and the same legal 'infirmities, that attach to all evidence, in whatsoever form it is introduced in court.\\nAll that the orator is bound to do is, to meet and overcome the answer by competent proof. This proof may require one or twenty witnesses; it may be made without any. \\\" It is important to state here the true import of the rule in equity, that an answer responsive to the allegations and charges made in a bill, and which contains clear and positive denials of them, must prevail, unless it is overcome by the testimony of two witnesses, or at least by one witness and attendant circumstances. The\\nrule as stated has reference to an answer opposed only by the testimony of one witness. But if the evidence in the cause, no matter what it may be, is sufficient to outweigh the answer, the plaintiff may have a decree in his favor.\\\" Mitf. Ch. PL, Tyler's ed., 1876,462. The foregoing extract from Mitford, who has been justly called the \\\" master of equity pleading,\\\" states the rule in satisfactory terms.\\nAnother rule relating to the answer as evidence is important to be noticed here. The authorities all agree that the answer is evidence only when it is a direct and explicit denial of the allegations made in the bill. If it denies such allegations on information and belief, it is not evidence. If the defendant sets up other matters in confession and avoidance of the charges made in the bill, such other matters are not evidence. Such allegations in the answer are mere pleading, and if relied upon by the defendant, must be'made out by proof, if the answer is traversed.\\nThe bill in this case in substance charges that the defendant L\\u00father P., being the trustee of the oratrix Mary Jane, \\\" paid in money towards the consideration \\\" of the purchase of certain premises in Burlington, bought by the defendant Mary Ann \\u2014 the title to which was taken in the name of the said Mary Ann \\u2014 the sum of two thousand dollars ; and that this sum of two thousand dollars was money held by Luther P. as trust money belonging to the oratrix. And the bill seeks to follow this money into the land so purchased, and charge the same with a trust-in favor of the oratrix.\\nThe gist of the charge in the bill upon this point is, that Lu ther P. misapplied the trust fund by using it in payment of the purchase money of the premises bought by Mary Ann. The trustee had no right thus to invest trust funds, taking no security for repayment, and upon such breach of trust, the cestui que trust may follow such funds so long as they can be traced, unless they or their product have come into the hands of a bona-fide purchaser for value without notice of the trust.\\nThe defendant Mary Ann seeks, in her answer, to stand in the relation of such bona-fide purchaser to this fund. After denying the payment of the money to her towards the purchase money of the premises, she avers that she received the money as the consideration of her promise to marry the defendant Luther without notice of its being trust money. This part of her answer is in no sense responsive to the bill. If true, it would be a good defence, to the claim of the orators. Jackson v. Rowe, 2 Sim. & Stu. 472. But as it stands, it is not evidence in the case to be considered. The case, then, is to be determined upon that part of the answer that is claimed to be responsive, aud the counter proofs. The denial of the answer to the charge of the bill is somewhat evasive ; it hardly comes within Mitford's statement that it must contain a \\\"clear and positive\\\" denial of the allegation, in order to be proof. She denies \\\" that said Luther P. paid any money to her for the purchase of said place out of any money belonging to said Mary Jane,\\\" &c. The \\\" clearness \\\" and \\\" positiveness \\\" of this denial will be seen by looking at the allegation she is by the bill called upon to admit or deny. It is, \\\" that Luther P. paid in money towards the consideration of said purchase,\\\" &a. It may not have been paid to her, and still may, as charged, have been paid to the vendor or some agent towards the consideration of said purchase, and for her benefit. Nor do the words, \\\" or otherwise \\\" help the denial, for the whole allegation is limited to a payment to her. If she, as a witness on the stand, in answer to the question, \\\" Did Luther P. pay any money towards the consideration of that purchase ?\\\" had replied, \\\" He paid none to me,\\\" it is more than probable that she would be troubled with a renewal of the inquiry. She admits the receipt of two thousand dollars in money from Luther P. in 1865. This was four years before her intermarriage with said Luther P. We are entirely satisfied on the evidence that this money was delivered by Luther P. to O'Grady, a brother of Mary Ann, and for her benefit, with an understanding that it was to be paid out as the purchase money of the premises in question, that it was so paid out by said Mary Ann, and that the title to the premises so purchased was taken in her name, and that as the case stands, her relation to the money and to the premises purchased with the money is that of a mere volunteer. She holds trust funds which belong to the oratrix, without consideration, a constructive trust is thereby raised in favor of the oratrix. 1 Perry Trusts (2d ed.), ss. 217, 241; Hill Trustees (4th Am. ed.), 274 and notes. A volunteer receiving or dealing with trust funds,, stands in the same position as a purchaser buying trust \\u00abproperty with notice of the trust; he will be charged with a constructive trust in favor of the true owner, and upon the demand of the true owner, equity will decree a conveyance to him or charge the estate with the payment of the money. 1 Perry Trusts, supra; Hill Trustees, supra; Blaisdell v. Stevens et al. 16 Vt. 179 ; Abell v. Howe et al. 43 Vt. 403 ; Boursot v. Savage, L. R. 2 Eq. 134; Hopper v. Conyers, L. R. 2 Eq. 549.\\nIt is ui'ged by counsel, that Luther P. testifies that the money was loaned to Mrs. Hinckley, and that no trust can arise in such case. It is unquestionably true, that a loan of money from A to B, will not raise a trust in favor of A in the estate purchased by B with the money ; but the fallacy of the defendant's position is in the fact assumed, that Blodgett had the right to make the loan. In the case supposed, if the money loaned by A was not his, but trust funds belonging to C, there would be no difficulty in fastening the trust in favor of C upon the estate. 2 Perry Trusts, s. 832; Ernest v. Craysdill, 2 De G. F. & J. 175. The trust so fastened upon the estate purchased, grows out of the breach of trust in misapplying the fund.\\nIt is further insisted in the answer, that the defendant Mary Ann has a homestead in the premises, as against the rights of the orators. It is an established doctrine in the law of trusts, that a trustee cannot make any profit out of the trust property, or ac quire any title thereto, as against the cestuis que trust. Luther P., then, could not buy a homestead with the trust money, and hold it ag'ainst the oratrix. Can the defendant Mary Ann, receiving the trust money without consideration, have any greater protection in its use than Luther P. on whose right she stands ?\\nCounsel further insist that the money was loaned to Mary Ann by Luther P. before their intermarriage, and that the subsequent marriage of the parties had the effect to extinguish the debt; but this position is not well taken. The wrongful act of Luther P. in loaning the money is not legalized by the marriage. It is not in the power of a trustee, by gift, loan, or other disposition of the trust fund in any manner whatever, to a mere volunteer, to put it beyond the reach of its rightful owner.\\nAgain it is said that the proceedings of the orators in obtaining their judgment at law, and in making the levy and set-off on their execution, were irregular, and that the defendant Mary Ann may question those proceedings, inasmuch as this is her first opportunity to do so. She was no party to those proceedings, and when they are made use of as the foundation of ulterior proceedings affecting her rights, she no doubt may call such proceedings in question if they have operated to her prejudice.\\nThe proceedings at law were taken to ascertain the amount due from the trustee to his cestui que trust, and they resulted in fixing a sum less than the amount which Mary Ann confessedly received.\\nThe orators having established the amount of their claim, proceed in the usual way to collect it by levying their execution upon the premises in question; but fail to reach the title because the apparent legal title is in a volunteer instead of the trustee, where it ought to be. Under such circumstances, equity will treat the title as it should be; and extend the lien' of the levy and set-off to the estate to which it rightfully attaches; and whether one of the appraisers was qualified to act is wholly unimportant. The proceedings in equity are instituted in order to reach the trust money, or the estate standing in lieu of it; and the particular form in which a lien is engrafted upon the estate, so long as no more than what is rightfully due is demanded, is a matter of minor importance. Under the facts of this case, no at law were essential to the attainment of the orators' rights. A valid lien upon this estate could have been established by proceedings in equity. The course pursued leads to the same result, and does not prejudice any rights of the defendant.\\nA court of equity on the chase after trust money, will not stop to speculate long over a choice of routes, so long as all lead to the desired destination.\\n' We discover no reason why the premises in question should not be subjected to the demand of tbe orators in the manner directed by the Court of Chancery, and accordingly the decree of that court is affirmed, and the cause remanded.\"}"

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+"{\"id\": \"4447373\", \"name\": \"TOWN OF DOVER v. SIMON A. WHEELER\", \"name_abbreviation\": \"Town of Dover v. Wheeler\", \"decision_date\": \"1878-10\", \"docket_number\": \"\", \"first_page\": \"160\", \"last_page\": \"170\", \"citations\": \"51 Vt. 160\", \"volume\": \"51\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:30:24.166679+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"TOWN OF DOVER v. SIMON A. WHEELER.\", \"head_matter\": \"TOWN OF DOVER v. SIMON A. WHEELER.\\nPauper. Gen. Sts. c. 20, s. 32.\\nIn case under s. 32, c. 20, Gen. Sts., to recover for money expended by plaintiff for the support of a pauper brought from Massachusetts into plaintiff town with intent to'charge the town with her support, it was agreed that the pauper was insane, and, as an insane pauper, had been an inmate of the Lunatic Hospital at Northampton, Massachusetts, for a year or more, when the general agent of State Charities, whose duty it was, under the statute law of that state, so to do, made an examination, to ascertain whether the pauper had sufficient ability to pay her expenses at said hospital, or kindred who were by law obliged to maintain her, or a legal settlement in any town or city in that state, and ascertained that she had not such ability, and no such kindred, nor settlement in the state, but that she had a legal settlement in the plaintiff town ; whereupon, by direction of the Board of State Charities, he directed defendant, an employe of the board, to remove her from the'hospital to plaintiff town, and commit her to the custody of plaintiff\\u2019s overseer of the poor, which defendant did, which removal was the act complained of. Held, that as defendant knew the pauper\\u2019s poverty and plaintiff\\u2019s liability to support her if in the state, and knew that plaintiff would incur expense if he left her there, and as the pauper was rightfully a citizen of Massachusetts, and in law and in fact a Massachusetts pauper, and as such not chargeable to plaintiff, who was bound to support mer only as between itself and other towns in the state until brought back by defendant, \\u2014 the intent to charge plaintiff was made out; and that there was nothing in other statutes in pari materia showing that in the passage of the statute in question the Legislature intended to exempt from its operation those cases where the pauper was taken to the town of his legal settlement, nor anything in inter-state comity justifying such a construction.\\nCase on s. 32, c. 20, Gen. Sts., for bringing Susan A. Phelps, a pauper, from Massachusetts into plaintiff town, with intent to charge plaintiff with her support.\\nAn amended declaration in two counts was filed. The first count was for money by plaintiff laid out and expended for the support of the pauper; the second, for the fine to which the defendant was alleged to be liable under the statute. Defendant pleaded the general issue, and gave notice of special matter in defence, from which it appeared that at the time of the commission of the act complained of, the said Susan was an insane pauper, and, as such, had been an inmate of the Lunatic Hospital at Northampton, Massachusetts, for a year or more, but that she had a legal settlement in plaintiff town; that under chapter 240 of the Acts of 1863 of that state, it was the duty of the general agent of State Charities to examine and ascertain whether the said Susan had sufficient ability to pay her expenses at said hospital, or kindred who were by law obliged to maintain her, or any legal settlement in any city or town in that state ; that on making such examination, said agent ascertained- that she had no means to maintain herself at the hospital, no kindred in the state who were bound to support her, and no legal settlement in the state, but that she had a settlement, as already stated, in the plaintiff town ; and that, on or about August 1, 1876, by direction of the Board of State Charities, he directed the defendant, an employe of said board, to remove her from the hospital to plaintiff town, and commit her to the custody of the plaintiff\\u2019s overseer of the poor, which he did. Eor the purpose'of obtaining the judgment of the court on the questions of law involved, it was agreed that the statements of the notice should be taken as true, and that, if the judgment of this court should be in favor of plaintiff, the damages and fine should be assessed by the clerk, and final judgment here rendered.\\nAt the September Term, 1878, Windham County, the court, Ross, J., presiding, rendered judgment, pro forma, for the defendant ; to which the plaintiff excepted.\\nDavenport $ Hddy, for the plaintiff.\\nThe act of the defendant is a plain violation of Gen. Sts. c. 20, s. 32. If the statute is one that the Legislature had constitutional power to enact, it is obligatory, not only on the citizens of this state, but on those of other states when they are in this state. That question is to be settled without regard to the statutes of Massachusetts, as they have no extra-territorial effect. The fact that the pauper had a settlement in Dover, is irrelevant. The right to compel a town to support a pauper is one stricti juris, and cannot be enforced except in accordance with some statutory provision. Middlebury v. Hubbardton, 1 D. Chip. 205 ; Jamaica v. Gtuilford, 2 D. Chip. 103; Qastleton v. Miner, 8 Vt. 209; Aldrich v. Londonderry, 5 Vt. 441; Houghton v. Danville, 10 Vt. 537 : Manchester v. Dorset, 14 Vt. 224: Marshfield v. Edwards, 40 Vt. 245.\\nThe statute is one that the Legislature had the constitutional power to enact. ' With its expediency the court has nothing to do. The right to enact it is incident to the police power inherent in every state. Shaw, C. J., in Commonwealth v. Alger, 7 Gush. 53 ; Redfield, C. J., in Thorpe v. Rutland Burlington Railroad Co., 27 Vt. 140 ; Cooley Const. Lim. 572 ; Lincoln v. Smith, 27 Vt. 328 ; Sedgw. Stat. Law, 435, et seq. ; New York v. Miln, 11 Pet. 102 ; Cooley v. The Wardens, 12 How. 299 ; Gibbons v. Ogden, 9 Wheat. 1; Watertown v. Ma/yo, 109 Mass. 315 ; Morrill v. State, 38 Wis. 428 ; State v. Cassidy, 22 Me. 312. The late cases in the United States Supreme Court, Henderson v. Mayor, \\u00a1fro., 2 Otto, 259, and Chy. Lang v. Ereeman, 2 Otto, 275, are not in conflict with the statute nor with the reasons that support it.\\nIt is urged that, to recover, plaintiff must prove an intent on the part of defendant to charge plaintiff with the support of a pauper in regard to whom plaintiff was under no obligation before ; and Wallingford v. Gray, 13 Vt. 228, Marshfield v. Edwards, 40 Vt. 245, Barnet v. Ray, 33 Vt. 205 and St. Johnsbury v. Goodenough, 44 Vt. 662, are relied on. But it is not necessary to prove such an intent. Such intent as was necessary the case shows. 1 Bishop Crim. Law, ss. 238, 248, 252; Sullivan v. Grafton, 55 N. H. 347. It is said that Dover was already charged ; but the fallacy of that is, that it was not charged as between itself and Massachusetts. But it makes no difference. Marshfield v. Edwards, supra. Greenfield v. Cushman, 16 Mass. 393, and Deerfield v. Delano, 1 Pick. 465, are not in point.\\nIt is also urged that, on the ground of comity, the court should, by construction, interpolate into the statute such language as will excuse one who brings a pauper from a foreign state into a town where, by the laws of the state, the pauper has a settlement. But a comparison of ss. 31 and 32 of the statute shows that our settlement laws are made for our own citizens and municipalities. The history of the legislation on the subject shows the same. Slade\\u2019s Sts. 373, s. 11, 382, s. 2; Rev. Sts. c. 16, ss. 25, 26 ; Comp. Sts. c. 18, ss. 29, 30, 32.\\nThe action of the State Board of Charities was a wanton interference with the rights of the pauper as well as of the plaintiff. There is no process by which she could be so taken from the state where she had fixed her domicil. Constitution United States, Art. 4, s. 2, and the 14th Amend\\u2019t; Portland v. Bangor, 65 Me. 120.\\nThe claim for the penalty in this action is waived.\\nField f Tyler, for the defendant.\\nThe defendant is not liable. The case shows no unlawful intent on his part to render the town chargeable. Not every act of bringing a pauper from one town into another and leaving him there, is actionable. Pierpoint, C. J., in Barnet v. Bay, 33 Yt. 205 ; St. Johnsbury v. Groodenough, 44 Yt. 662 ; Wallingford v. Cray, 13 Yt. 228 ; Marshfield v. Edwards, 40 Yt 245. Apply the rule deducible from those cases to this, and it appears that this is wanting in the element of intent. The defendant was clearly guilty of no intent to charge the plaintiff. To charge means, to put or lay on, to burden, to impose. The plaintiff was already burdened.\\nThe section in question should be construed as though it contained the clause, \\u201c if such a person has not a legal settlement in such town.\\u201d That is the only reasonable construction, and accords with previous legislation on the subject. Slade\\u2019s Sts. 370, s. 2; Rev. Sts. c. 16, s. 25 ; Comp. Sts. c. 18, s. 29. It accords also with No. 40, Sts. 1867, s. 1. But how could it be made an indictable offense to bring a pauper, &c., when it would be lawful for the pauper to come by herself. The test of the statute is, the right of the pauper to come. Morgan v. Mead, 16 Yt. 644. The authority of the court to construe the statute as we urge cannot be doubted. The intention of the Legislature should be followed. jHenry v. Tilson, 17 Yt. 479; Redfield, J., in Treasurer of Vermont v. Clark, 19 Yt. 129 ; Byegate v. Wardsboro, 30 Vt. 746 ; Shaw, C. J., in Cleveland v. Norton, 6 Cush. 383. At common law persons were indictable only for fraudulently remov ing paupers into a parish in which they had no settlement. Bex v. Busby, 3 Botts\\u2019 Poor Law, 335, and cases cited by Gray, J., in Palmer v. Wakefield, 102 Mass. 214. Statutes are never construed as taking away a common-law right unless the intention is manifest. Parsons, 0. J., in 4 Mass. 471. See the laws of New Hampshire, New York, and Massachusetts, which prohibit the bringing of paupers only into towns where they are not lawfully settled.\\nBut the case does not show- that the defendant was informed of the facts in the case. Such knowledge will not be presumed. Without such knowledge, how could there have been intent ? But the intent is the gravamen of the offence. Earl v. Camp, 16 Wend. 562; Salvaeool v. Boughton, 5 Wend. 170 ; Sturbridge v. Winslow, 21 Pick. 83.\\nEdmund M. Bennett, also for the defendant.\\nThe action is purely statutory, no such remedy existing at common law. Crouse v. Mabbett, 11 Johns. 167. The case then depends on the construction of Gen. Sts. c. 20, s. 32.\\nAlthough the action is a civil one, the construction must be the same as if it were an indictment on the same section. Walling-ford v. Gray, 13 Yt. 228 ; Greenfields. Cushman, 16 Mass. 392 ; Beerfield s. Belano, 1 Pick. 464; Sanford s. Emery, 2 Greenl. 5 ; Dyer s. Hunt, 5 N. H. 401.- In Thomas s. Boss, 8 Wend. 672, it was held that it must be shown that the party bringing the pauper acted mala fide and with fraudulent intent. See also Poster v. Cronlchite, 35 N. Y. 139, and Nelson, O. J., in Coe s. Smith, 24 Wend. 344. The pauper had a legal right to return to Dover. Can it be that to aid her therein, in good faith, would be to do a thing calling for punishment civilly and criminally ? Can there be an accessory without a principle ?\\nThe language of the statute leads to a contrary- conclusion. The act must be done with intent to charge, &c. To charge means, to impose a burden. The language of the earlier statute was, \\u201cwith intent to make such town chargeable.\\u201d Does not that mean to create what did not exist ? But Dover was already charged. \\u201c Every town shall relieve and support all poor and indigent per sons settled therein tohenever they shall stand in need thereof.\\u201d Gen. Sts. c. 12, s. 1.\\nThe analogies of the law lead to the construction asked for. It is familiar that in construing penal statutes clauses must often be inserted by construction. Commonwealth v. Slack, 19 Pick. 304; Commonwealth v. Boynton, 12 Cush. 499. Were this an indictmeut, it would be a complete defence that the defendant did not know that the pauper had no settlement in Dover, even if she had not; a fortiori if she had such settlement. Beg. v. Willmot, 3 Cox C. C. 281; Beg. v. Cohen, 8 Cox C. C. 41; Beg. v. Sleep, Leigh & C. 44; Commonwealth v. Boynton, supra; Hearne v. Gaston, 2 Ellis & E. 16 ; Taylor v. Newman, 4 B. & S. .89. But in penal actions the criminal intent and knowledge are as necessary as in an indictment. Brooks v. Clayes, 10 Yt. 37. As to interpolation, see Hassenfrats v. Kelly, 13 Johns. 466; Benton v. Hunt, 7 Wend. 53; JEtheredge v. Cromwell, 8 Wend. 629; Price v. Thornton, 10 Mo. 135 ; Duncan v. The State, 7 Humph. 148; Commonivealth v. Stout, 7 B. Monr. 247; Deerfield v. Delano, supra; Charleston v. JLunenburgh, 23 Vt. 525; Henry v. Tilson, 17 Yt. 479 ; State v. Benton, 18 N. H. 47 ; Byegate v. Wardsloro, 30 Yt. 746 ; Somerville v. Boston, 120 Mass. 574.\\nThe fundamental policy of the pauper law calls for the same construction. The policy' of Yermont and of all the New England States is, that each town shall maintain its own poor. That is u the corner stone of the whole pauper law.\\u201d Byegate v. Wardsboro, supra. Each town in the state has a legal right to remove from its borders any pauper found therein, to the town in this state of legal settlement. The same policy gives each town the right to remove the pauper to the state where he lawfully belongs. This right is distinctly recognized in every other New England State, and by New York and Pennsylvania. Maine Rev. Sts. of 1871, c. 24, s. 38 ; New Hampshire Comp. Sts. of 1853, s. 5 ; Massachusetts Gen. Sts. c. 79, s. 20 ; Connecticut Gen. Sts. of 1866, 620, s. 12 ; Rhode Island Gen. Sts. of 1872, c. 66, s. 1; New York Rev. Sts. cited 8 Wend. 674 ; 2 Brightly\\u2019s Pnrdon\\u2019s Dig. 1156, s. 17. That Yermont has no different policy is shown by the course of her legislation. See Slade\\u2019s Sts. 373, s. 11, 882, s. 2; Rev. Sts. o. 16, ss. 25-27 ; Sts. of 1845, No. 39 ; Comp. Sts. c. 18, ss. 29-32; Gen. Sts. c. 20, s. 32.\\nBut if a private person would be liable to the penalty, an officer of the law, acting under official orders from a legal board with apparent jurisdiction over the subject-matter, is not. The necessary criminal intent cannot exist. Slurbridge v. Winslow, 21 Pick. 83. ' '\", \"word_count\": \"4237\", \"char_count\": \"23737\", \"text\": \"The opinion of the court was delivered by\\nPowers, J.\\nThe act of bringing the pauper, Susan A. Phelps, to Dover in the manner and under the circumstances detailed in the exceptions, was a violation of the provisions of s. 32, c. 20, Gen. Sts. This section provides a penalty for bringing a poor and indigent person from another state to a town in this state, with intent to charge such town with such person's support. Section 31 of the same chapter provides a penalty for bringing a poor person from one town in this state to another town, without an order'of removal, with- intent to charge such other town with such person's support. Other sections of the chapter impose the duty upon towns to support all paupers lawfully settled therein, and provide a remedy and procedure for the removal of a pauper' standing in need of relief from the town called upon to aid to the town of legal settlement. The several modes by which a legal settlement may be acquired in towns are precisely defined in the statute; and if the person in need of relief has no legal settlement in any town, the town of domicile must bear the expense of support. Citizens of one state may rightfully remove to other states, and establish homes and gain rights of domicile and settlement therein. Our Bill of Rights, Art. 19, reads, \\\" that all people have a natural and inherent right to emigrate from one state to another that will receive them.\\\" In the exercise of this \\\"natural and inherent right,\\\" Susan A. Phelps left Vermont several years since, and eventually became domiciled in Massachusetts, and while there, became a pauper. While in Massachusetts she was not a pauper chargeable to Dover; While in Vermont, and as against all other towns in V ermont, Dover was bound to support her. While out of Vermont, every other town in Vermont was as much bound to support her as Dover. She might voluntarily return to Vermont in the exercise of the same \\\" natural and inherent right \\\"; and on her arrival here, the relative duty of Dover, as respects all other towns, to take care of her, is revived. But, in this case, she was brought here nolens volens ; and, by the defendant's act of bringing her and leaving her with the overseer of the poor of Dover, the duty to support her was cast upon that . town, which would not have devolved upon it had the defendant left her alone. The defendant knew of her poverty and dependence \\u2014 knew the town liable to support her when resident in Vermont \\u2014 and knew that Dover would necessarily incur expense if he landed her there. His intent to charge that town with her support is sufficiently made out.\\nIt is no answer to say that she was already \\\" chargeable \\\" to Dover. As a citizen of Massachusetts, she could not be chargeable to Dover. She had acquired a new domicil. She had expatriated herself from Vermont, and had become a citizen of Massachusetts, subject to its laws, and, as a pauper there, had become a rightful partaker of its bounty. She was, in law and in fact, a Massachusetts pauper, and not a Vermont pauper. If she had been a pauper of Dover receiving aid, who had escaped to Massachusetts, or had been clandestinely transported to Massachusetts, to shift or avoid the burden of her support, and had thereupon \\u2022 been returned to Dover by the authorities of Massachusetts, the case would present different features. State v. Benton, 18 N. H. 47. ' But the case is the ordinary one of emigrants from one state falling in need of aid in the home of their adoption. If the argument of the defendant is sound, it follows that all the thousands of emigrants from Vermont, who left towns wherein they had legal settlements, and have acquired homes in the Western States, may be returned to us by the authorities of those States when they come to want.\\nThe notice states that this pauper had no legal settlement in Massachusetts ; but this does not preclude the idea that she was a pauper entitled to support there. We have two classes of paupers ; one, entitled to support from the town in which they have acquired in some of the statutory modes a legal settlement; the other, entitled to support by reason of transient domicil. Doubtless similar provisions of law exist in Massachusetts. At all events, according to the notice, \\\" she was an insane pauper, and, as such, had been an inmate of the Lunatic Hospital at Northampton for a year or more.\\\" In the light of these facts, ought the court, by judicial construction, to override the plain language of section 32 ? Did the Legislature intend to impose the penalty prescribed, in cases where poor persons were returned from other states to the towns in which they had legal settlements ? If the section, .looked at by itself, or all the acts in pari materia, looked at as one system, show the legislative intent to be different from the expression of it in the section, it is the province and duty of the court to disregard the letter and give force to the spirit of the law. Under section 31 it is unlawful to transport a poor person from one town to another for the purpose of imposing the burden of support upon such other town. Nevertheless, such poor person can voluntarily go to such town with such intent. The obligation of towns to support paupers is one of strict right, and can only be imposed in the manner pointed out in the statute. An order of removal can only issue when it is found upon judicial inquiry that the needy person has come to reside in the town initiating the proceedings, has become chargeable as a pauper, and has a legal settlement elsewhere in the state. When the order is made, the defendant town has the right of appeal, and may contest any or all the material facts necessary to the adjudication. In this way the rights of both towns are amply protected. If a private individual undertakes a removal, the town charged has no opportunity to be heard, and great wrong and hardship would ensue. So long as the pauper resides elsewhere, the town of his legal settlement owes him no duty, and is exposed to no liability. He has the free right to remove from town to town, to acquire a new settlement if he can, to return when he pleases, and if ultimately he falls in need of support, the town of his legal settlement is charged, provided it be legally so adjudged. If an individual should return a pauper to a poor-house from which it had wandered into another town, it could not be said that he did so with intent to charge the town with such pauper's support. The town has already been charged, and was actively sustaining the burden. The town had been charged in the sense that the burden of support had been imposed and assumed in the way pointed out in the statute. The town cannot be \\\" charged \\\" except in the manner pointed out in the statute. -The fact that the individual transporting the pauper happens to leave him in the town of his legal settlement, does not excuse him. The fact that another section of the statute imposes upon towns the duty to support all paupers lawfully settled therein, avails such individual nothing. The fact of settlement and the duty of support are material only when the town is called upon in a legal manner to incur expense. The intent to charge the town with the pauper's support \\u2014 to compel the town to incur expense \\u2014 to call into active operation an ulterior liability \\u2014 to create a burden where none before existed, \\u2014 is the test of criminality involved in section 31. The same intent, executed in like manner, works the same mischief under section 32.\\nThe pauper had a legal settlement in Dover as against other towns in this state. As against the state of Massachusetts, she had no settlement in Dover. Between different states and between towns in different states there ean be no such thing as a place of legal settlement, within the contemplation of the pauper laws. In respect to the poor-laws of Vermont, Massachusetts is as much a foreign state as Canada. Under section 31, the individual wrongfully bringing a pauper into a town is liable for his support, if he has no settlement there. He rightfully incurs the same liability under section 32, as no question of legal settlement can, in any case, properly arise. Obligations to support the poor, and regulations governing the subject, are essentially matters of state concern, which each state must assume and fashion in its own way ; and any attempted inter-state legislation looking to an adjustment of such obligations between sister states, would doubtless prove to be neither practicable nor desirable. It is not to be presumed that the Legislature of Massachusetts expected or intended that the Act under which the defendant justifies the removal of Mrs. Phelps would have any extra-territorial effect, as it clearly could not.\\nThe language of section 82 is plain and unambiguous ; the mischief sought to be remedied, apparent; the remedy prescribed, homogeneous with that in section 31 ; and nothing appears to indicate that the Legislature meant one thing and said another.\\nNo principle of judicial comity will justify the court in giving effect to the statute of Massachusetts, if it was designed to effect the removal of this pauper to Dover. It would be a pleasure to recognize and effectuate the legislative will of a sister state, under circumstances possible and proper for the exercise of that comity, which courts may sometimes extend to other jurisdictions. But we do not understand that we are at liberty to suspend the operation of a positive statute forbidding an act that the law of another state sanctions.\\nThe judgment is reversed, and judgment rendered for the plaintiff on the first count in the amended declaration. Damages to be assessed by the clerk, pursuant to the stipulation of counsel.\"}"

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+"{\"id\": \"4447583\", \"name\": \"KING, FULLER, & COMPANY v. THE LAMOILLE VALLEY RAILROAD COMPANY\", \"name_abbreviation\": \"King, Fuller, & Co. v. Lamoille Valley Railroad\", \"decision_date\": \"1879-01\", \"docket_number\": \"\", \"first_page\": \"369\", \"last_page\": \"377\", \"citations\": \"51 Vt. 369\", \"volume\": \"51\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:30:24.166679+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"KING, FULLER, & COMPANY v. THE LAMOILLE VALLEY RAILROAD COMPANY.\", \"head_matter\": \"KING, FULLER, & COMPANY v. THE LAMOILLE VALLEY RAILROAD COMPANY.\\nContract. Performance. Covenant. . Assumpsit. Evidence. Waiver.\\nOn December 3, 1869, plaintiffs entered into a contract under seal with defendant, whereby they agreed to \\u201cconstruct and finish . . . all the graduation, masonry,\\u201d &c., on a portion of defendant\\u2019s railroad, on or before September 1, 1871, and defendant agreed to pay therefor eighty-five per cent, of the stipulated price as the work progressed, and the balance when the work was finished and accepted by defendant\\u2019s engineer. It was also thereby agreed that plaintiffs should \\u201cfrom, time to time on three month\\u2019s notice in writing\\u201d by defendant, \\u201cretard or lessen the work for such time and to such extent \\u201d as defendant should thereby require, and that if the work should be thereby delayed or retarded, the time in which the work was to be completed should be extended such length of time as the engineer might determine. Plaintiffs immediately began work with a force insufficient to complete it within the contract period, but intending to increase it sufficiently for that purpose, and continued therein till May 28, 1870, when defendant\\u2019s engineer notified them \\u201c to stop any increase of work.\\u201d It was then agreed that plaintiffs should do \\u00e1 limited amount of work, to prepare a part of the road for early use, and should be allowed a reasonable time after expiration of the contract period, for completion of the residue. Plaintiffs thereafter prosecuted the work in accordance with that agreement until November, 1872, when defendant directed them to stop work, which' they did within three months. Defendant paid all of the contract price except the part that was earned after the giving of notice in November, and a part of the final payment of fifteen per cent., for which plaintiffs brought covenant. Held, that the original contract was, in effect, that the work should be done on or before September 1, 1871, or such later date as might be fixed on a contingency therein provided for, that the work was therefore done in performance of the original contract, and that for the breach by defendant covenant would lie ; that the provision for three months\\u2019 notice of the retarding or lessening of work was for plaintiffs\\u2019 benefit and might be waived by them, that as it was defendant\\u2019s fault that no definite extended time was fixed, plaintiffs were not to be prejudiced thereby; that the direc tion given to the plaintiffs by the engineer was for retarding or lessening the work within the meaning of the contract; that evidence proving the agreement for an extension of time for performance, and performance according to that agreement, was admissible; and that plaintiffs were entitled to pay for work done within three months after the notice of November, 1872.\\nCovenant. The case was referred, and the referees reported the following facts:\\nOn December 3, 1869, the plaintiffs entered into a contract under seal with the defendant, whereby they agreed \\u201c to contract and finish in a most substantial and workmanlike manner \\u201d to the defendant\\u2019s satisfaction and acceptance, \\u201c all the graduation, masonry, and such other work \\u201d as should be required \\u201c in sections numbered one to thirteen inclusive \\u201d of the first division of the defendant\\u2019s railroad, and to finish the same on or before September 1, 1871. The defendant thereby agreed to pay.therefor as the work progressed, eighty-five per cent, of the stipulated price, and to pay the balance when the work should have been accepted by defendant\\u2019s engineer as completed according to contract. By note four of the contract it was agreed that the plaintiffs should \\u201c from time to time, on three months\\u2019 notice in writing \\u201d by the defendant, \\u201c retard or lessen the work for such time and to such extent\\u201d as the defendant should thereby require, and that in case the work should be thereby delayed or retarded, the time in which the work was to be completed should be extended such length of time as the engineer in charge might determine. The plaintiffs immediately began work under the contract with a force insufficient to complete it within the contract period, but intending to increase it sufficiently for that purpose, and continued therein until May 28, 1870, when they received a letter of that date from the defendant\\u2019s engineer, notifying them that he had been directed \\u201cto stop any increase of work,\\u201d and that the plaintiffs should \\u201c govern themselves accordingly.\\u201d On September 2d following, the plaintiffs had a conference with the defendant\\u2019s president, and later in the month, and in December and April following, a correspondence with its engineer, wherein it was agreed that a limited amount of work should be done, to complete that portion of the line most needed for early use, and that for the completion of the residue a reasonable time should be given after the expiration of the time limited by the original contract. The plaintiffs thereafter prosecuted the work in accordance with that agreement, employing during the years 1870 and 1871 a force insufficient for the completion of the work within the time originally agreed upon. On November 20, 1872, the defendant\\u2019s engineer wrote to the plaintiffs, saying that he was instructed to have all work suspended on that part of the road ; that he hoped that would be done without delay ; that he was aware the contract contemplated three months\\u2019 notice of the issue of such an order, but that the circumstances were exceptional, and must be apparent to the plaintiffs ; that the state of' the money market rendered it impossible for the defendant to negotiate its securities, &c. On the 27th of the same month he wrote again, saying that he did not feel authorized by the language of the contract to give a peremptory order for the immediate suspension of the work, but that the directors of the defendant could not, and, until further notice, would not pay for further work, and wished that the work might be suspended immediately, and took upon themselves all the onus of so suspending it, and the responsibility for the results. The orders conveyed by those letters were never countermanded ; and immediately on their receipt by the plaintiffs, work was stopped and nothing further done, except work by Bycraft & Crombie, who were at work under the plaintiffs, to the amount of $156, which was done within three months of the receipt of those orders, and for which the plaintiffs were never paid. With the exception of that item, the work was all paid for in accordance with the contract except part of the fifteen per cent, that was to be retained until completion of the work, which the defendant refused to pay. The unpaid part thereof with interest thereon to September 10, 1878, was found to amount to $12,797.18 ; and the $156 due for work done by Bycraft & Crombie, was found to amount, with interest to the same date, to $207.82. The plaintiffs made claim for a further sum on account of a deviation in the building of the road from the projected line, and the referees found that the increased cost to the plaintiffs by reason of that deviation, with interest to the same date, was $5,388.67. The question as to the liability of the defendant therefor was submitted to the court. The defendant claimed that it had suffered damage by reason of non-performance on the part of the plaintiffs within the time agreed on, and it was found that the defendant did in fact suffer loss to a large amount in consequence of the delay in completing the road, through increased cost of construction, deterioration of accumulated material, &c. The question as to the plaintiffs\\u2019 liability therefor, and as to whether the amount thereof should be deducted from whatever might be found due to the plaintiffs, was submitted to the Court.\\nThe evidence from which the referees found- an agreement for an extension of time for performance on the part of the plaintiffs, and prosecution of the work by them in accordance with that agreement, was received by the referees subject to objection ; and the defendant objected to the acceptance of the report, for that the evidence was inadmissible.\\nAt the September Term, 1878, the court, Royce, J., presiding, rendered judgment on the report, pro forma, for $18,393.67 ; to which the defendant excepted.\\nH. S. Royce and H. A. Burt, for the defendant.\\nThe obligation of the defendant to perform depended on' performance by the plaintiffs. The plaintiffs allege performance upon their part, but the fact is found against them. Where the covenants are dependent, there can be no recovery, unless performance by the plaintiff is alleged and proved. 2 Stevens N. P. 1071; Porter v. Stewart, 2 Aik. 417. Covenant will not lie. Assumpsit affords the only remedy, if there is any. Bassett v. Sanborn, 9 Cush. 58 ; Freeman v. Adams, 9 Johns. 115; Little v. Holland, 3 T. R. 590; Heard v. Wadham, 1 East, 619 ; Barker v. T. \\u2021 R. R. Oo. 27 Yt. 774; Philips v. Rose, 8 Johns. 392; Jewell v. Schrceppel, 4 Cow. 564; Smith v\\u201e Smith, 45 Yt. 433 ; Sherwin v. R. B. Railroad Go. 24 Yt. 347. The agreement provides that if, on request of the defendant, the force employed by the plaintiffs should be lessened and the work retarded, the time for performance by the plaintiffs should be extended accordingly; but if request had been made and work had been retarded, and the time for performance had been extended, it would not have been an enlargement of the time by the original agreement, but by the subsequent agreement. It is the same in effect as if it had been provided by the contract that the time for performance by the plaintiffs thereunder should be extended by agreement. But the plaintiffs were not requested to retard-nor lessen the work, but merely to stop increase. When the time for performance of an agreement under seal is extended by an instrument under seal, there must be performance within the extended time. Porter v. Stewart-, Bassett v. Sanborn, Freeman v; Adams, Jewell v. Sehrcepp\\u00e9l, BarTcer v. T. B. B. Co., supra. This, however, is but an assertion of the general principle, that to sustain covenant, the plaintiff must allege and prove performance on his part.\\nThe defendant should be allowed what it cost above the contract price to complete the work. Sedgw. Dam. 504 ; Smith v. Foster, 36 Yt. 705 ; Smith v. Smith, supra.\\nEdson, Band Cross, for the plaintiffs.\\nThe engineer\\u2019s orders of May, September, and December, 1870, and of April, 1871, were retarding orders' under the provision of the contract. The fact that the plaintiffs retarded the work without insisting on the three months\\u2019 notice, does not change the nature of the orders. It was competent for the plaintiffs to waive the notice. After those retarding orders were made, the contract was not one to be performed September 1, 1871, but one to be performed in such time after that date as the engineer should determine, and he determined that the plaintiffs should have an indefinite time. That extension did not make a new contract. It was provided for by the contract itself on the happening of a contingency ; or, more correctly 'speaking, on the happening of the contingency, the contract was not one to be performed \\u00e1t a particular time named in the contract, but one to be performed within a time to be fixed by the engineer. On the retarding of the work, the engineer was the arbiter between the parties as to the extra time to be allowed under the contract. Whatever the arbiter could do under the contract, the parties themselves could do by agreement; and if the action of the arbiter under the contract fixing the additional time to be allowed does not make a new contract, the action of the parties in doing the same thing by agreement cannot be construed to do so. Thus the case is different from Smith v. Smith, 45 Yt. 433, and Sherwin v. JR. f B. Railroad Co. 24 Yt. 347, where it is held that when a party contracts under seal to do work by a specified time, and the time is subsequently enlarged by parol, the parol enlargement makes a new contract on which assumpsit will lie but not covenant. Here there is no enlarging of the time by parol, but an enlarging of it by virtue of a stipulation in the contract itself. Furthermore, it appears that the parties understood at the time that they were proceeding under the contract after September 1, 1871. The proceedings of both parties show this; and no suggestion was ever made by either party that the contracts were not in full force. Therefore a sufficient performance is shown to support a recovery, and the recovery must be in covenant on the contract. Myrielc v. Slason, 19 Yt. 121; Camp v. Barker, 21 Yt. 469 ; McCord v. W. F. Railroad Co. 3 La. 285. Under the contract, the defendant had the right to retard the work, and from the findings of the referees it appears that they did retard it to such an extent that they prevented the plaintiffs from performing the contract by September 1, 1871. In other words, the defendant hindered the plaintiffs from full performance of a condition precedent. It is therefore estopped from insisting on failure to perform. Sherwin v. R. B. Railroad Co., supra. Defendant knew that the plaintiffs performed work after September 1, 1871, and expressed entire satisfaction therewith. That amounted to a waiver of the forfeiture on account of non-performance by September 1, if there was any such forfeiture. Gallagher v. Nichols, 60 N. Y. 447 ; Smith v. Gugerty, 4 Barb. 614; Mayor of New York v. Butler, 1 Barb. 325 ; Sinclair v. Talmadge, 35 Barb. 602.\\nThe orders of November 20 and 27 were a discharge of the plaintiffs from further performance of the contract, and entitled them to bring suit immediately, without further performance or an offer of further performance. Bunge v. Koop, 48 N. Y. 225 ; Crist v. Armour, 34 Barb. 378 ; Banforth v. Walker, 37 Yt. 239 ; N. O. W. Railroad Co. v. Q-anath, 18 La. 510.\\nThe unpaid balance of the fifteen per cent, retained by defendant should be recovered, and no question arises as to the amount. The plaintiffs should also recover for work done by Bycraft & Crombie within three months after the receipt of orders to suspend work.\", \"word_count\": \"3447\", \"char_count\": \"20225\", \"text\": \"The opinion of the court was delivered by\\nPowers, J.\\nThe plaintiffs were contractors for building certain sections of the defendant's railroad. The terms of their agreement were embodied in a written contract under seal, signed by both parties. By the terms of the contract the plaintiffs agreed to complete the work on or before September 1,1871. By note 4 incorporated in the contract it is provided that the plaintiffs, on three months' notice in writing by the defendant, shall retard or lessen the work to such extent as the defendant may desire, and, if the work be so retarded, then the time for the completion of the work is to be extended such length of time as the engineer in charge may determine. The plaintiffs began the prosecution of the work under the contract in 1869, and continued their work with a small force, not large enough to complete the work by September 1, 1871, but intending to increase the force sufficiently for that purpose, until May 28, 1870, when they were notified by the defendant \\\" to stop any increase of work.\\\" After this, mutual arrangements were made between the plaintiffs and defendant, as shown by the correspondence referred to in the report of the referees, from which the referees find the fact that it was mutually understood and agreed by the parties before September 1, 1871, that the time for the completion of the contract should be extended, and that the work was thereafterwards prosecuted pursuant to such agreement. The work was done, estimated, and paid for, pursuant to the terms of the contract in all respects save the time of performance. The defendant now insists that the arrangement of the parties under which the extension of the time for the completion of the work was made, was such as compels the plain tiffs to sue in assumpsit, and that this action of covenant cannot be maintained upon the contract so modified. The general rule that the modification of a contract under seal by a new and subsequent parol agreement changing some of the contract provisions will set the whole contract at large and compel a resort to the action of assumpsit upon the modified contract, is well settled, and not questioned by counsel in this case. The plaintiff must set out his contract in his declaration, and must prove performance of it as it is laid. Proof of performance after the time would not support the declaration, and therefore would be inadmissible. Little v. Holland, 3 T. R. 590; Jewell v. Schr\\u0153ppel, 4 Cowen, 564; Smith v. Smith, 45 Vt. 433. But to work this result, the sealed contract must appear to have been in whole or partly superseded by the new parol agreement, so that performance by the party after the parol modification is not an execution of the original contract, but an execution of the modified contract. In this case the date named, September 1, 1871, is an alternative date. The contract itself provides another time for performance. Taken as a whole, the contract practically runs, the said work to be finished, &c , on or before September 1,1871, or such later day as may be fixed upon by the engineer upon the happening of the contingency herein provided for. If the contingency happen, and the time be thereupon extended, the after performance of woi'k is not done in execution of any new contract, but in execution of the original contract itself, and for any breach of its terms an action of covenant will lie. Shaeffer v Geisenbergh, 47 Penn. St. 500. In the case last cited the plaintiff contracted under seal to construct a building for the defendant. The contract contained this clause : \\\" The said Geisenbergh, however, reserves the right to have changes made in the plan or arrangement of the building, he compensating the said Shaeffer for any additional expense incurred thereby, if any.\\\" Changes were made by the defendant, and extra expense thereby occasioned to the plaintiff. The plaintiff sued in assumpsit, and it was held that the modifications made were provided for by the sealed contracts, and, when made, were in execution of that contract, and the remedy was covenant upon that contract. The provision that the defendant should give three months' notice of their determination to suspend work, was made for the plaintiffs' benefit and might be waived by them. The letters of the engineer to the plaintiffs, dated November 20, 1872, and November 27, 1872, clearly show that the defendant recognized the contract as still in force, and excused the plaintiffs from further prosecution of the work. It was the defendant's fault that no definite extended time was fixed for. the completion of the work. The. plaintiffs were powerless to fix the time, and hence no advantage can be. taken by the defendant of their own neglect. It is argued that the directions of the engineer t\\u00f3 the plaintiffs not to increase their working force, is not an order retarding or lessening the work within the purview of note 4 in the contract. The defendant knew, as well as the plaintiffs, that the force then being worked could not complete the work within the time limited, and knew of the contemplated increase of force. The language of the order of May 28, 1870, is to stop any increase of work. It is not to stop all work, but stop any increase of work. What meaning would an intelligent man expect would be given to such language ? Or how could an intelligent man have used such language, or write any letter of the character upon the subject of the plaintiffs' working force, if he was not cognizant of the fact of a contemplated increase of work ? The letter meant, and was evidently intended to convey, an order to retard the work. The evidence on this subject was properly admitted by the referees. The plaintiffs are entitled to recover the item for retained fifteen per cent., and the item for work done by Bycraft & Crombie within three months after notice to plaintiffs to suspend work, in November, 1872, both amounting to $13,005, and interest from date of report.\\nThe pro-forma judgment of the County Court is reversed, and judgment for the plaintiffs.\"}"

vt/4451306.json

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+"{\"id\": \"4451306\", \"name\": \"STATE v. JOHN CLARK\", \"name_abbreviation\": \"State v. Clark\", \"decision_date\": \"1890-01\", \"docket_number\": \"\", \"first_page\": \"278\", \"last_page\": \"279\", \"citations\": \"62 Vt. 278\", \"volume\": \"62\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T21:49:38.009451+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. JOHN CLARK.\", \"head_matter\": \"STATE v. JOHN CLARK.\\nAbatement of nuisance. Service of order.\\n1. Proceedings for the closing of a place as a nuisance under the liquor law are purely statutory, and the substance of the statute must be complied with.\\n2. Where the officer posts upon the door of the place a copy of the order of abatement itself instead of the notice prescribed by the statute, the place is not legally closed against the occupant, but he may reopen it. without first giving a bond.\\nExceptions from the City Court of the city of Burlington,. Peck, \\u00abI. The complaint, based upon R. L. s. 3840, charged' the respondent with having re-opened, without first giving the required bond, a room which had been abated as a nuisance. The respondent having been convicted, moved in arrest of sentence for the insufficiency of the complaint. Motion overruled.\\nThe following were the allegations of the complaint so far as relates to the adjudication that the place in question was a. nuisance and its abatement:\\n\\u201cAnd such further proceedings were then and there had before said City Court, that the said bar-room was adjudged to-be a common nuisance, and was then and there ordered by said court to be shut up and abated as such, and thereupon said court, on, to wit, the 23d day of July, A. D. 1889, issued its order in writing in due form of law, directed to Joseph Barton,, sheriff of the county of Chittenden, to serve and return, and commanding him as such sheriff to shut up and abate said room, and to return said order with his doings thereon, to said court according to law.\\nAnd said Barton as such sheriff as aforesaid, by virtue of and in pursuance of said order to him so directed as aforesaid, at said Burlington, on, to wit, the 23d day of July, 1889, made-service of said order so directed to him as such said sheriff, and did shut up and abate said nuisance and room by posting a copy of said order on the door of the said bar-room, and by removing all articles that constitute a bar and closed the doors of said barroom, in due form of lawj and returned said order with his doings thereon into court according to law, on said 23d day of July, A, D. 1889.\\u201d\\nJ. A. Brown, for the respondent.\\nThe statute relating to the abatement of a common nuisance-is mandatory, and must be strictly complied with. Shrewsbury v. Mount Holly, 2 Yt. 220 ; Farnsworth v. Goodhue, 48 Yt. 209 ; Willard v. Pike, 59 Yt. 202.\\nI). J. Foster, State\\u2019s Attorney, and J\\\\ E. Cushman, City-Grand J uror, for the State.\", \"word_count\": \"739\", \"char_count\": \"4121\", \"text\": \"The opinion of the court was delivered by\\nEowell, J.\\nThe complaint alleges that the order for shuting up the respondent's place and abating the nuisance was \\\" in due form of lawbut what is set out of it does not show that it was in due form, which, the form being prescribed, means the-statutory form. Without saying whether this is good pleading- or not, we assume it to be for present purposes, which makes the order in due form. But the complaint shows it to have been executed in a manner entirely different from its command. Its-command was to abate the nuisance by shutting up the place,, on giving the respondent reasonable notice to remove whatever goods and effects he might lawfully possess therein, and on shutting it up, to post on the door or main entrance thereof a notice, signed by the officer in his official capacity, in the words following : \\\" Closed against John Clark of Burlington, by order of the city clerk of Burlington.\\\" Instead of doing this, as the complaint shows, the officer posted a copy of the-order itself on the door of the place, removed all articles that constituted a bar, and closed the doors \\\" in due form of law; \\\" thus omitting to obey most of the commands of his precept. This is fatal. This whole proceeding being purely statutory, the substance of the statute must be complied with in order to legally shut up the place ; and if it is not legally shut up, it is not illegal to reopen it without giving the bond required by statute. The motion is sustained.\\nAs this ends the case, nothing need be said on the other points.\\nJudgment and sentence reversed, and judgment that the respondent be acquitted.\"}"

vt/4457461.json

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+"{\"id\": \"4457461\", \"name\": \"ELIZA S. HANCOCK v. W. F. CLARK, APT.\", \"name_abbreviation\": \"Hancock v. Clark\", \"decision_date\": \"1896-01\", \"docket_number\": \"\", \"first_page\": \"302\", \"last_page\": \"305\", \"citations\": \"68 Vt. 302\", \"volume\": \"68\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T17:41:22.091434+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ELIZA S. HANCOCK v. W. F. CLARK, APT.\", \"head_matter\": \"ELIZA S. HANCOCK v. W. F. CLARK, APT.\\nJanuary Term, 1896.\\nConstruction of contract. Dividends on shares sold. Usury.\\n1. The plaintiff by written contract sold to the defendant certain shares of bank stock. The contract provided that \\u201c the sum of all dividends declared each year on all shares unpaid shall be in lieu of interest on the same.\\u201d Held, that the dividends on shares not paid for belonged to the plaintiff.\\n2. Such a contract would not be usurious, although under its operation the plaintiff received more than the legal rate of interest upon the purchase price of her shares.\\nGeneral, assumpsit. Pleas, the general issue, payment and tender. Trial by jury at the September term, 1895, Orleans county, Start, J., presiding. Verdict and judgment for the plaintiff. The defendant excepts.\\nThe plaintiff sought to recover dividends declared upon certain shares of Barton National Bank stock in January and July, 1888. December 27, 1884, the plaintiff sold and transferred to the defendant twelve shares of Barton National Bank stock, and received from the defendant the following writing:\\n\\u201c Glover, Vt., Dec. 24th, 1887.\\n\\u201c For value received, for twelve shares of Barton National Bank stock, I promise to pay Mrs. E. S. Hancock, or bearer, twelve hundred and sixty dollars as follows : Two-hundred and ten dollars on delivery of said stock to me, and the same amount each year, or before, thereafter, until the whole is paid. The sum of all dividends declared each year on all shares unpaid shall be in lieu of the interest on the same; but if at any time between the declaring of such-dividends, such shares are paid for, the interest on such share, or shares, shall be such a part per share of six dollars as the time bears to the whole year.\\u201d\\nAt the date of the transfer the defendant paid the plaintiff $210 and on Feb. 29, 1888, paid to the plaintiff $1050 more, making in all the sum of $1260.\\nIt appeared that Jan. 2, 1888, and July 8, 1888, there had. been declared a dividend of three dollars on each-of said shares at each of these dates, that the defendant received these dividends, and that no part of the same had ever been paid by the defendant to the plaintiff.\\nAt the close of the testimony the court directed a verdict for the plaintiff.\\nCook & Redmond for the defendant.\\nIf a contract contemplates the payment of the sums-claimed by the plaintiff it is a usurious one and cannot be enforced. Stevens v. Fisher, 23 Vt. 272 ; Hathaway v. Hagean, 59 Vt. 75.\\nW. W. Miles for the plaintiff.\\nIt was the condition of the contract that the plaintiff should' have the dividends in lieu of interest and the defendant having received these dividends holds them to the use of the plaintiff. Chitty\\u2019s Pl. 339 n. 5 ; Bikford v. Ins. Co., 67 Vt. 419.\", \"word_count\": \"1128\", \"char_count\": \"6388\", \"text\": \"ROSS, C. J.\\nThe only contention in this court, is in-regard to the construction to be given to the contract, between the parties of Dec- 24th, 1887. At that date the plaintiff sold and transferred to the defendant twelve shares of the capital stock of the Barton National Bank, for which the defendant paid then two hundred and ten dollars and gave his obligation to pay the plaintiff ten hundred and fifty doll\\u00e1rs additional, payable one-fifth each year, or before, thereafter until the whole was paid. Then follows this provision : \\\" The sum of all dividends declared each year on all shares unpaid shall be in lieu of the interest on the same ; but if at any time between the declaring of such dividends, any shares are paid for, the interest on such share, or shares, shall be such a part per share of six dollars as the time bears to the whole year.\\\" The defendant contends that, because of the words, \\\"sum of all dividends declared each year,\\\" the parties intended that interest should be reckoned on the shares unpaid for at their par value from the time of declaring the January dividends each year to the end of that year, and that the dividends made that year are to be added together and their sum applied as a general payment, first to liquidate the interest then due, and the balance, if any, to be applied on the principal. We do not think the language used evidences such an intention. No interest is reserved except on shares paid for between the times of declaring dividends. It is clearly expressed that the dividends on the unpaid shares are to be in lieu of interest on the same. Whether dividends would be declared, and if so, of what amount, was doubtful, and subject to contingencies. If interest was intended to be reserved, we should have expected it would be upon the amount agreed to be paid per share and not upon the par value. We think the parties clearly intended to give the plaintiff the dividends on the shares unpaid for in lieu of interest. The plaintiff was to take the risk of the dividends on the shares not paid for being sufficient to pay the interest on her capital'invested in them. This being the general provision between the parties, there follows the provision commencing with \\\"but\\\" to meet a condition which was likely to occur, inasmuch as the contract left the time of payment optional with the defendant; and of which he availed himself. If the defendant elected to pay for any of the shares between the declaring of dividends, then he was to pay interest on such shares from the time of the last dividend.\\nNor does this construction render the contract usurious as contended by the defendant. There is no reservation of intei'est above six per cent, by the terms of the contract, nor by any understanding of the parties. It was wholly uncertain whether the dividends would be more or less than six per cent, per annum. Because the defendant happened to select a time to pay for the shares which gave the plaintiff more than six per cent, does not render the contract usurious. The sale of these shares was shortly before an expected dividend. It was practically a sale with the dividends reserved to the plaintiff. No doubt the price agreed to be paid per share was less than it otherwise would have been but for the fact that by the terms of the contract the plaintiff was to have the dividend which was expected to be made in a short time thereafter. If this dividend had not been made the plaintiff would have failed to receive anything for the use of her investment since the dividend next before the making of the contract.\\nJudgment- of the county coit,rl is affirmed.\"}"

vt/4457932.json

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+"{\"id\": \"4457932\", \"name\": \"Grace I. Parker vs. Taylor O. Parker\", \"name_abbreviation\": \"Parker v. Parker\", \"decision_date\": \"1897-01\", \"docket_number\": \"\", \"first_page\": \"352\", \"last_page\": \"355\", \"citations\": \"69 Vt. 352\", \"volume\": \"69\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T22:25:53.219961+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Taft, Rowell, Tyler, Munson and Start, JJ.\", \"parties\": \"Grace I. Parker vs. Taylor O. Parker.\", \"head_matter\": \"Grace I. Parker vs. Taylor O. Parker.\\nJanuary Term, 1897.\\nPresent: Taft, Rowell, Tyler, Munson and Start, JJ.\\nAction at Law iipon Termination of Trust.\\nThe defendant received a fund to keep invested and pay with its accumulations to the plaintiff and her sister in stated shares upon their arrival at majority. Held, that the plaintiff, becoming of age, might maintain an action at law for her share, diminished by the expense of administering the trust.\\nLynde v. Davenport;57 Yt. 597, followed; Congdon v. Cahoon, 48 Yt. 49, distinguished.\\nAssumpsit in tbe common counts. Plea, tbe general issue. Trial by jury at the March Term, 1896, Washington County, Ross, C. J., presiding.\\nVerdict directed for the defendant. The plaintiff excepted.\\nJ. P. Lamson for the plaintiff.\\nThe trust has terminated and the legal title is in the plaintiff, so that a suit at law may be maintained. Any advancements or expenses chargeable to the fund may be offset.\\nThe plaintiff is not seeking to establish a trust, for that is conceded, nor to settle a trust, for that was settled when the defendant took the money and agreed to pay it to the plaintiff when she became of age. Lynde v. Davenport, 57 Vt. 597; Harris y. Harris, 44 Vt. 320; Underhill v. Morgan, 33 Conn. 105.\\nJohn W. Gordon for the defendant.\\nThe notes were given in gross to the defendant for two beneficiaries, only one of whom is a party to this suit. To allow one to recover her full share might be unjust to the other. All parties to the trust should'be in court and this can be done only in equity. Congdon v. Cahoon, 48 Vt. 49; I Pom. Bq. Jur., \\u00a7\\u00a7 150 and 151.\\nThe trustee\\u2019s expenses are a lien upon the fund and cannot be determined in this action. Rensselaer & Saratoga R. R. Co. v. Miller & Knapp, 47 Yt. 146, 152.\\nA court of law cannot determine the accumulations for which the trustee should be held liable. The legal rate of interest may not be the criterion.\", \"word_count\": \"1147\", \"char_count\": \"6289\", \"text\": \"Taft, J.\\nThe only question in this case is whether the plaintiff can maintain an action at law to recover the claim in controversy or whether her only remedy is in equity.\\nThe defendant received eleven hundred dollars in certain mortgage notes that were subsequently paid him. He was to take care of the fund, keep it on interest, and when the plaintiff and her sister, respectively, became of age, he was to pay five hundred dollars, with its accumulations, to the plaintiff, and six hundred dollars, with its accumulations, to the sister. The defendant insists that this transaction created such a trust that it can be settled only in a court of equity, relying upon the ease of Congdon v. Cahoon, 48 Vt. 49. That was the case of trust created by a deed of real estate and the gift of certain mortgage notes. The trustees were to take charge of the property, collect the income thereof and expend it, and to some extent, expend the principal, in the support of. the wife of the grantor in the deed, and four of his children. The beneficiaries were not entitled to equal shares of the income, but it was to be used in the discretion of the trustees in the support of them all. The plaintiff was one of the four children, and upon arriving at full age, when she was entitled to a certain share of the property, brought an action at law to recover it. The trust was still an active one; the trustees were to continue as such until the youngest child arrived at its majority, and there had been no settlement of the trustees' accounts. The plaintiff's share of the fund could not be determined except by a settlement of the trustees' accounts. It was necessary that all of the parties in interest should be parties to any settlement made, and it was very properly ruled that the plaintiff could not recover at law any share that might, upon the settlement of the account, belong to her. The legal title of the property was in the trustees, and the only remedy any of the parties in interest had was in a court of equity that had complete and exclusive jurisdiction of the subject matter.\\nThe case before us differs in essential particulars from that case. The defendant received the money, was under a duty to keep it bearing interest, and to pay the fund to the plaintiff upon her arrival at the age of majority. He was not authorized to expend any money, whatever, for the support of the plaintiff, and could have no claims in respect to it unless it was for his services in the care of it. The trust ended when the plaintiff became of age. She was then entitled to the money, and the legal title of the property became vested in her at that time. This being so, she has a right to maintain an action at law to recover it. The reason why a cestui que trust cannot maintain an action at law against the trustee is because the legal title of the property is in the latter and not in the beneficiary.\\nThe defendant should account to the plaintiff; there can be no difficulty in determining the amount of the trustee's expenses for administering the trust, and any valid claim of that nature can be deducted from the amount of the funds, in his hands before any judgment is rendered against him.\\nThe plaintiff is entitled to the five hundred dollars and the accumulations less any valid expenses of the defendant in respect to the fund, and any payments heretofore made.\\nThis case is ruled by that of Lynde v. Davenport, 57 Vt. 597; and see the cases therein cited. It has been held that in case of an active trust, the trustee is liable to an action at law in behalf of the beneficiary if any portion of the trust funds are separated from the main fund and the trustee promises to pay the beneficiary the amount. Under this principle, there was testimony which required a submission of the case to the jury, as there was evidence tending to show that the defendant, when the money was demanded of him, replied that if the plaintiff would go with him, he would pay her a part of it, and secure her for the balance. She did go with him, as he proposed, stayed over night with him, but when asked for it in the morning, he said he was not ready to pay. This if true would entitle her to a recovery; but it is unnecessary to place the case upon this ground, as we think the equitable estate had ended, and the action at law maintainable.\\nJudgment reversed and cause remanded.\"}"

vt/4458555.json

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+"{\"id\": \"4458555\", \"name\": \"First National Bank of Brandon vs. George Briggs Assignees\", \"name_abbreviation\": \"First National Bank v. Briggs\", \"decision_date\": \"1894-05\", \"docket_number\": \"\", \"first_page\": \"12\", \"last_page\": \"22\", \"citations\": \"69 Vt. 12\", \"volume\": \"69\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T22:25:53.219961+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Ross, C. J., Taet, Rowell, Tyler, Mtjnson, Start and Thompson, JJ.\", \"parties\": \"First National Bank of Brandon vs. George Briggs Assignees.\", \"head_matter\": \"First National Bank of Brandon vs. George Briggs Assignees.\\nMay Term, 1894.\\nPresent: Ross, C. J., Taet, Rowell, Tyler, Mtjnson, Start and Thompson, JJ.\\nOfficial bond \\u2014 Scope\\u2014Absence of Seal.\\nA bond was given by one Briggs for tlie faithful performance of his duties as cashier of a national bank \\u201cforever, so long as he should occupy the position.\\u201d The United States statute provided that the cashiershould be appointed and removed by the directors at their pleasure; and the directors of this bank had passed a by-law declaring that the cashier should be elected to hold office during the pleasure of the board. The bond was executed March 5, 1883. On February 3, 1883, Briggs had been elected \\u201cfor the year ensuing.\\u201d On January 8, 1884, and annually thereafter, for nine years, he was re-elected. All his defaults occurred after the expiration of the first year. In an action upon the bond, held that the surety was not liable.\\nAn instrument, in form a bond, though without seals, if executed upon sufficient consideration and delivered to take effect as security, is a valid obligation.\\nAppeal from the allowance by the Court of Insolvency for the District of Rutland of a claim against the estate of George Briggs, insolvent debtor, as surety upon the official bond of F. E. Briggs as cashier of the plaintiff. Adjudged, pro forma, upon an agreed statement of facts, at the March Term, 1894, Rutland County, Munson, J., presiding, that the action might be maintained.\\nThe defendant excepted.\\nFebruary 3, 1883, F. E. Briggs was elected by the directors cashier of said bank for the year ensuing. March 5,1883, the bond in question was executed. January 8, 1884, and annually thereafter for nine years, said F. E. Briggs was elected by the directors, and during all that time served as cashier of the plaintiff. None of the defaults occurred during the years 1883 and 1884.\\nJ. C. Baker for the plaintiff.\\nU. S. Rev. St. 5136, Sub. 6 and 7, empowers directors of national banks to appoint and dismiss cashiers and to prescribe by by-laws the manner of their election.\\nThe plaintiff by its by-laws prescribed that the cashier should be appointed to hold his office \\u201cduring the pleasure of the board.\\u201d\\nThere is no requirement of law that the cashier shall be appointed for any definite time. The usage of the directors to re-elect each year, does not make the office an annual one. Amherst Bank v. Root, 2 Met. 522. The re-election of Briggs did not create a new term, but was simply an expression of the will of the directors that he should remain in office. He would have continued to hold the office without a re-election. Morse on Banks (2 ed.) 227.\\nThe bond is not invalid for want of seals. United States v. Linn, 15 Pet. 290.\\nStewart & Wilds for the defendant.\\nNo question can be made as to the power of the directors to employ and appoint a cashier for a definite term subject to their right to dismiss him at their pleasure. Neither the statute nor the by-law provides otherwise. In the exercise of their duty the directors elected F. E. Briggs \\u201cfor the year ensuing.\\u201d\\nHis term was limited to one year and he was bound for one year, though he might be dismissed before the end of it. It was for his fidelity in this contract that George Briggs became his surety. * The surety\\u2019s liability cannot be more extensive than this contract unless there are unequivocal words importing it. They must expressly point to subsequent elections. The \\u201cforever\\u201d of the bond is the \\u201cforever\\u201d of the contract of employment. Lord Arlington v. Merncke, 3 Saund. 411a; State Treasurer v. Mann 34 Vt. 371; Hassell v. Long, 2 M. & S. 363; Wardens of St. Saviour's, etc. v. Bastock 5 B. & P. (2 N. R.) 175; Kitson v. Julian et al, 4 El. & Bl. 854; Dover v. Twombly, 42 N.H 59; Norridgewock v. Hale, SO Me. 362; Mechem, Pub. Off. \\u00a7 286; Throop Pub. Off. \\u00a7 \\u00a7 205, 207; Thomp. Liab. of Off. p. 512, \\u00a7 8; Murfree, Off. Bonds, \\u00a7 420 et seq.\\nThe plaintiff cannot recover, because the bond is unsealed. Barnet v. Abbott, 53 Vt.,120; Rutland v. Paige, 24 Vt. 181.\", \"word_count\": \"3634\", \"char_count\": \"20705\", \"text\": \"Muns'on J.\\nThe plaintiff is a corporation organized under the National Bank act. Its board of directors was empowered by that act to appoint a cashier and dismiss him at pleasure, and to prescribe by-laws, not inconsistent with law, regulating the manner in which the cashier should be appointed. A by-law was adopted which provided that the cashier should be appointed to hold his office during the pleasure of the board. The insolvent's first election as cashier was for the year ensuing, and he was thereafter for ten years annually re-elected. Soon after his first election, he gave the bond in controversy, which, is conditioned for the faithful discharge of his duties as cashier forever, so long as he should occupy the position. The defaults complained of occurred after the expiration of his first official year.\\nWe are not aware that the precise question raised by this statement has been passed upon; but a review of the course of decision by which courts have arrived at what must now be regarded the settled law upon the subject of official bonds, will aid us in the disposition of the case.\\nIn Lord Arlington v. Merricke, 3 Saund. 411 a, the delinquent was a deputy-postmaster, who was originally appointed for six months, but whose' bond was for and during all the time that he should continue in the office. The time for which he was appointed was recited in the condition, and it was considered that the terms of the obligation must be held to refer to the recital, and thattheliability was thereby limited to six months. In Liverpool Waterworks Co. v. Atkinson, 6 East 507, there was a recital in the condition of the bond that the defendant had agreed with the plaintiff to collect its revenues for twelve months, and the condition was that the defendant should justly account during the continuance of such his employment, and for so long as he should continue to be employed ; and it was held that the obligation was confined to the twelve months mentioned in the recital. These cases are authority for saying that when a definite period of appointment is recited in the condition, the obligation will not be extended beyond that period by any subsequent general words.\\nIn Wardens of St. Saviour's v. Bastock, 5 B. & P. (2 N. R.) 175, it was shown by the recital in the condition that the principal was appointed collector of the church rate of the parish, but the period of appointment was not stated. It appeared from the replication that the first appointment was for one year, and that the incumbent was continued in office by annual re-appointments. The office was apparently an annual one by virtue of the local act under which the rates of the parish were managed. The bond was upon condition that the collector should from time to time account for all monies received by him on account of the rate assessed, or of any other rates which might thereafter be made and collected by him. The court considered that the case could not be distinguished from that of the Liverpool Waterworks Co. v. Atkinson. In Peppin v. Cooper, 2 B. & Ald. 431, the condition recited an appointment as collector of land taxes under an act of Parliament, but the term of appointment was not stated. The condition of the bond was to account for monies received at all times thereafter. The court held that these wrords must be construed with reference to the recital and the nature of the appointment therein mentioned; andthatinasmuch as the fact that the appointment was an annual one could be learned from the act of Parliament under which it was made, it was unnecessary to state that fact, either in the bond or in pleading. These cases are authority for saying that when the appointment is for a definite period fixed by law, a recital of the term in the bond is not necessary to limit the effect of general words which in themselves would indicate a continuing liability.\\nThe above cases, and others of the same holding, were reviewed by this court in State Treasurer v. Mann, 34 Vt. 371, and it was then considered upon their authority to be perfectly settled that when the appointment is for a limited period, which is recited in the condition of the bond, or, if not recited, is fixed by law, the liability will be confined to the period named in the condition or fixed by law, although the language of the condition is general and unlimited. In that case the delinquent was the director of a bank by whose charter the office was made annual. Acts 1842, p. 107. At his first election he gave a bond conditioned to secure the due performance of his duty as director while he should continue in the office, and gave no bonds when subsequently re-elected. The bond was held to cover the defaults of the first year only. It is sufficient to say that the authorities in this country are entirely in accord with this decision.\\nKitson v. Julian, 4 El. & Bl. (82 E. C. L.) 854, covers ground in advance of these cases. In that case the delinquent was appointed an officer of a private corporation, and gave a bond conditioned to account for all monies collected by him \\\"from time to time and at all times so long as he should continue to hold the said office or employment.\\\" The bond contained no recital of the period for which he was appointed. The plea averred that the appointment was for one year from a day named. The replication averred that the appointee continued in his employment, with the assent of the defendants and the company, after the expiration of the year. It was held that inasmuch as the condition of the bond recited the appointment, it was to be assumed that the extent of that appointment was known to the signers of the bond, and that thev contracted with reference to it. This case is authority for saying that general words will not extend the liability beyond the term of the appoin tment named in the recital, although the extent of the appointment is neither given in the recital nor fixed by law.\\nIt is not to be understood, however, that words may not be used in the condition sufficiently specific to extend the liability beyond the time of the original appointment. But to have this effect the words must be such as clearly to indicate th\\u00e1t the parties contracted with reference to a further liability. In Hassell v. Long, 2 M. & S. 363, the officer was a collector of taxes imposed by act of Parliament, and the condition was to account for monies received on any tax then imposed or which might thereafter be imposed. The court held that inasmuch as the imposition of further taxes within the year, however improbable, was not impossible, the words employed were not sufficiently clear and certain to extend the liability beyond the current year. But whenever the words clearly indicate that it was the intention of the parties to furnish security for the time the appointee should continue in office without regard to the term of his appointment, they are to be given their full effect. In Augero v. Keene, 1 M. & W. 390, the condition, after reciting the appointment, held the appointee to an accounting for such monies as he should receive \\\"from time to time at all times thereafter during such time as he should continue in his said office of collector, whether by virtue of his aforesaid appointment, or of any reappointment thereto.\\\" The court considered the liability of the obligors for the entire period to be beyond question. The same effect was given to words of like import in Oswald v. Berwick-upon-Tweed, 5 H.L. 856.\\nIt is also held that when the office is by term annual a further provision that the incumbent shall remain in office until his successor is appointed does not take the case out of the rule above presented. In State Treasurer v. Mann, already cited, it was said that the office was to be regarded as annual notwithstanding such a provision. In Welch v. Seymour, 28 Conn. 387, the articles of association of a corporation provided that its treasurer should continue in office until the next annual meeting and until another should be elected in his stead. It was held that the office was an annual one, and that the obligation of the bond did not extend beyond the year. In Dover v. Twombly, 42 N. H. 59, the incumbent of an annual office held through another year by force of a statutory provision in default of the appointment of a successor. It was held that the bond, although general in terms, was good only for the time for which the principal was appointed. In Chelmsford Company v. Demarest, 7 Gray 1, it was provided that the treasurer of a corporation should be chosen annually and hold office until the election and qualification of his successor. Here it was said that the obligation of the bond extended to the next annual meeting or the meeting at which the next annual election should be made, and for such reasonable time after that as would enable the successor to complete his qualification, and no further.\\nThe plaintiff does not question the doctrine of these decisions; but it contends that in view of the statutory provision regulating the tenure of these appointments it must be considered that the cashier, although appointed for a year and re-elected at the end of the year, was holding his office during the pleasure of the board; and that his various re-elections did not create new terms, but were simply expressions of the will of the directors that he should continue in office.\\nMuch of the reasoning relied upon in support of this contention is derived from Amherst Bank v. Root, 2 Met. 522. In that case it appeared from the records of the corporation that the cashier's first appointment was for the year ensuing, and that at the expiration of the year he was again appointed for the year ensuing, after which he continued to serve for several years without re-appointment. There was, however, a statutory provision that a cashier should retain his place until removed or until another was' appointed in his stead; and it was considered that although the election was for a year the law made it a continuing office. Dewey, J., dissented on the ground that the appointment having been in fact made for a year, the sureties could not be holden for defaults occurring after the year.\\nIt is said in 1 Morse on Banks \\u00a7 27, upon the authority of Amherst Bank v. Root, that a mere usage of the directors to re-elect every year does not impart to the office the legal character of annual duration, that sureties \\u2022 will not be presumed to have contracted with reference to such a usage, and that a re-election in pursuance of the usage will not limit the obligation of the bond. But this must be read with a remembrance that in the case under review the court considered that the office was a continuing one by force of the statute. '\\nThe controlling effect of the statute upon the disposition of Amherst Bank v. Root is emphasized by a later case. In Richardson School Fund v. Dean, 130 Mass. 242, where the statute left with the corporation the right to fix the term of office as it saw fit, it did not appear what the by-laws of the corporation were, but the corporation had for a long series of terms elected its treasurer triennially. It was held that as there was no statute which made the office a continuing one, the reasoning in Amherst Bank v. Root was not applicable; and that the corporation had by its long and uniform practice made the office a triennial one, so that when the defendants made their contract it was with reference to a fixed and limited term.\\nIt is evident that the case of Amherst Bank v. Root, if followed, will not be decisive of the case at bar, unless the United States statute is held to have the sa\\u00edne effect that was given to the Massachusetts statute. The two provisions are not similar in terms. The federal regulation is simply that the directors may appoint the necessary officials and remove them at pleasure. The only case that has cometo our notice in which this provision has been considered is the case of Harrington v. First National Bank of Chittenango, 1 Thomp. & C. 361 (N. Y. Sup. Ct.). There a teller, who had been employed for a year, was discharged before the expiration of the year, and sought to recover compensation for the full term. The court held that the appointment was subject to a right of dismissal given the defendant by law. The decision goes no further than the express provision of the statute. As is said in 2 Morse on Banks, Part II., \\u00a7 108 (d), the cashier of a national bank cannot be irrevocably appointed for a definite time. It is evident that the further statement in \\u00a7 109, that a national bank cannot hire its officers for any specified time, was not intended to convey a broader meaning.\\nThe Massachusetts statute contemplated a termination of the incumbency by an act removing or superseding the incumbent, which implied a continuing office. We see nothing in the language of the bank act which requires that a limited appointment under it be treated as of this character. The provision that an officer may be dismissed at pleasure can apply as well to an appointment limited to a given time as to an appointment for an indefinite period. It does not impliedly prohibit the fixing of a time beyond which the appointment shall not extend. Its effect is simply that the appointment, however made, shall be terminable at the pleasure of the appointing power. Anappointmentmaybemade which, if not previously terminated by the action of the directors, will continue for the period designated, and expire by its own limitation. There is nothing in the statute which requires us to hold that this surety contracted with reference to an unlimited period, when the appointment was in terms for a specified time. The cashier's re-election was something more than a meaningless expression of the pleasure of the directors ; it was the filling of a vacancy occasioned by the limitation of their previous appointment.\\nIt remains to determine whether the defendant's liability is affected by the provision of the plaintiff's by-law, that the cashier should be appointed to hold his office during the pleasure of the board. It is claimed by defendant's counsel that this provision does not contemplate an appointment for an indefinite period; but in disposing of the point stated we shall assume that it does. It thus becomes necessary to consider whether the surety shall be held to have contracted with reference to the term contemplated by the by-law, or the term fixed by the vote of the directors in making the appointment.\\nThe case cannot be put on the ground that the corporation had, by long and uniform practice, made the office an annual one, notwithstanding the provision of its by-law. This bond was given at the cashier's first election, and the case does not show what the previous course of the corporation had been. But, irrespective of any previous action of a similar character, we think the liability of the surety is to be determined with reference to the appointment as made. The case discloses nothing to place the surety in any other position as regards the by-law than that of a stranger; and the doctrine is that by-laws of this nature are merely provisions for the government of the corporation, that strangers are not bound to know them, and that notice of them will not be presumed. Mor. Priv. Corp. \\u00a7 500, 502, 593. The early decisions to the contrary in New York have been ignored in recent cases. Rathbun v. Snow, 123 N. Y. 343: 10 L. R. A. 355. But if the surety were to be held charged with notice of the by-law, we think his liability would not be extended by it. The by-law, and the vote making the appointment,were expressions of the same authority. It is not necessary to consider what the situation may be when the by-law is adopted by one quorum and the appointment made by another, or when the votes are taken at meetings held upon different notices; for the case does not present these questions. The identical power which made the by-law could formally abrogate it, or ignore it in a particular instance. It was dispensed with for the time being when a vote inconsistent with it was passed; and having been disregarded in limiting the cashier's appointment, it cannot now be invoked to extend the liability of his surety.\\nThe instrument in question in this suit is in form a bond, but without seals. Such an instrument is a valid contract obligation, if executed upon a sufficient consideration and delivered to take effect as security. United States v. Linn, 15 Pet. 290.\\nJudgment reversed and cause remanded.\\nNote. For a contrary holding, see Westervelt v. Mohrenstecher, 76 Fed. Rep. 118, which appeared after this opinion was in the hands of the reporter.\"}"

vt/4469245.json

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+"{\"id\": \"4469245\", \"name\": \"W. L. Currier v. Edward King\", \"name_abbreviation\": \"Currier v. King\", \"decision_date\": \"1908-05-29\", \"docket_number\": \"\", \"first_page\": \"285\", \"last_page\": \"291\", \"citations\": \"81 Vt. 285\", \"volume\": \"81\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T20:11:20.594428+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Rowell, C. J., Tyler, Munson, and Watson, JJ.\", \"parties\": \"W. L. Currier v. Edward King.\", \"head_matter\": \"W. L. Currier v. Edward King.\\nSpecial Term at St. Johnsbury, February, 1908.\\nPresent: Rowell, C. J., Tyler, Munson, and Watson, JJ.\\nOpinion filed May 29, 1908.\\nPleading \\u2014 Requisites\\u2014Bankruptcy \\u2014 Discharge \\u2014 Sufficiency of Plea \\u2014 Attachment Lien \\u2014 How Affected by Discharge in B ankruptcy \\u2014 H omestead \\u2014 Abandonment.\\nWhatever circumstances are necessary to constitute the cause of complaint or ground of defence must be stated in the pleadings, but only facts are to be stated, not arguments, nor inferences, nor matters of law.\\nPlaintiff\\u2019s specification under his declaration in general assumpsit is no part of the declaration as regards subsequent pleadings; but is only a limitation on his proof.\\nWhere a declaration in assumpsit did not show plaintiff\\u2019s debt to have been provable in bankruptcy, a plea of discharge in bankruptcy not alleging that fact is bad on demurrer. Bailey\\u2019s Admx. v. Gieason, 76 Yt. 115, distinguished.\\nIn whatever stage of the pleadings it is taken, a demurrer reaches back through the whole record and fastens on the first substantial defect in the pleadings.\\nIn an action of assumpsit for the purpose of realizing on the property thereby attached, plaintiff is entitled to judgment notwithstanding defendant\\u2019s discharge in bankruptcy, granted in proceedings begun more than four months after the attachment was made.\\nA trustee in bankruptcy takes the bankrupt\\u2019s property subject to all equities imposed on it while in the hands of the bankrupt.\\nWhere, more than four months before the filing of defendant\\u2019s petition to be adjudged a bankrupt, plaintiff attached land that defendant had abandoned and was not keeping and occupying as a homestead, plaintiff\\u2019s lien was not affected by the action of the bankruptcy court in setting out the land to defendant as a homestead. White v. White, 68 Yt. 161, distinguished.\\nGeneral Assumpsit. Heard on the defendant\\u2019s demurrer to plaintiff\\u2019s surrejoinder, at March Term, 1907, Essex County, Taylor, J., presiding. Demurrer overruled and surrejoinder adjudged sufficient; whereupon judgment was rendered for the plaintiff to be satisfied solely from the property attached. The defendant excepted. The opinion recites the substance of the pleadings in question.\\nAmey <& Sunt for the defendant.\\nBy contesting defendant\\u2019s claim to a homestead, plaintiff elected to waive his attachment lien. White v. White, 68 Yt. 161. And plaintiff is estopped from taking judgment against this property by the judgment of the bankruptcy court setting out defendant\\u2019s homestead thereon. Woodruff v. Taylor, 20 Yt. 65. The federal courts are not to be regarded by the state courts as foreign tribunals, but their judgments are to be accorded in the courts of any state the same effect, respect and conelusiveness as would be accorded in; similar circumstances to the judgments of a state tribunal of equal authority. St. Albans v. Bush, 4 Yt. 58; Embry v. Palmer, 107 U. S. 8; Oceania Steam Nav. Co. v. Compa\\u00f1\\u00eda etc., 134 N. Y. 461; Dupasseur v. Bochereau, 21 Wall. 130; Durant v. Essex Co., 85 Am. Dec. 685;'Steinbach v. Ins. Co., 33 Am. Dec. 655. A judgment duly rendered by a federal court is conclusive and indisputable as to all points and questions in issue and adjudicated. Hill v. Barre Nat. Bank, 56 Yt. 582; McCauley v. Hargroves, 15 Am. St. Eep. 660; Dudley v. Lindsay, 50 Am. Dec. 522; Thomas v. Southard, 26 Am. Dec. 467. Where the right, title or ownership of property is directly put in issue, whether by the pleadings or the course of the litigation and is, tried and determined, the judgment is, conclusive thereon in all further litigation between the same parties or their privies, whatever may have been the nature or pprpose of the action in which the judgment was rendered or of that in which the estoppel is set up. Morgan v. Baker, 26 Yt. 602; Storrs v. Robinson, 58 Atl. 746; Laturence v. Englesey, 24 Yt. 42. A judgment is conclusive not only upon the question actually contested and determined, but upon all matters which might have been litig\\u00e1ted and decided in that suit. 23 Cyc. 1295; Parkhurst v. Sumner, 23 Yt. 538; Harmon v. Auditor of Pub. Accts., 5 A. S. E. 502; Hill v. McConnell, 68 Atl. 199.\\nHerbert W. Blake for the plaintiff.\\nThe adjudication that the said place was the homestead of the defendant only amounted to this; that neither himself nor the general creditors had any title or right to the said property, other than to set it out to the bankrupt. His power was analogous to that of the probate court, which simply says that so far as it is concerned, a particular piece of ground is homestead, and leaves the parties to their remedy in other courts, to establish contested rights and titles to it. Mann v. Morris Est. 53 Yt. 48; Goodall v. Boardman, 53 Yt. 101.\\nThe trustee takes the property subject to all subsisting and valid liens, encumbrances or equities, whether created by operation of law or by the act of bankrupt. Pond v. Campbell, 56 Yt. 674; Thompson, Tr. v. Fairbanks, 75 Yt. 361; Batchelder v. Wedge, 80 Yt. 353; In re Wells, 5 Am. Bankruptcy Eep. 308.\\nAnd so we submit that the plaintiff is entitled to his judgment: First, because the plea is bad; second, because the replication is sufficient for the plea; third, because the rejoinder is bad; and fourth, because the surrejoinder is good enough for an answer to the rejoinder, and shows a right to have judgment and satisfaction of the same out of the attached property, notwithstanding all the f\\u00e1cts pleaded by the defendant; in order to avoid the attachment on account of the homestead right, it should be shown that the defendant was so keeping and occupying the real estate in question that it was not attachable at the time the attachment was made. Keyes v. Bump, 59 Vt. 391; Bugloy v. Bemis, 60 Vt. 216.\", \"word_count\": \"2242\", \"char_count\": \"13076\", \"text\": \"Tyler, J.\\nAssumpsit in the common counts. The writ is dated April 10, 1905, was served on the same day by attaching all the defendant's real estate in the towns of Brighton and Newark, and was returnable April 25 to a justice of the peace. The ease was continued from time to time till May 13. The plaintiff sought to recover an overdue instalment of one hundred dollars on a six hundred dollar promissory note.\\nThe defendant pleaded, actionem non, that Sept. 30, 1905, he filed his petition to be adjudged a bankrupt in the U. S. District court, district of Vermont, that he was afterwards adjudged a bankrupt, and that on July 3, 1906, he received from that court his discharge as such bankrupt; that the plaintiff's cause of action accrued before the filing of the defendant's petition in bankruptcy and was scheduled in time for allowance, etc.\\nThe plaintiff replied that, precludi non, by reason of the defendant's discharge in bankruptcy because the plaintiff's writ was sued out and his attachment filed, more than four months before the filing of the defendant's petition to be adjudged a bankrupt; that the plaintiff did not waive his attachment lien and share in the distribution of the defendant's assets but did rely upon his security, and that his debt against the defendant was disallowed by the court on the ground that it was amply secured by his attachment. The plaintiff conceded in his replication that his judgment should be limited for its satisfaction to the property attached. The defendant rejoined that upon hearing the parties the bankruptcy court, by the trustee in bankruptcy, set apart for the defendant as a homestead exemption fifty acres of land with the buildings thereon, which he acquired by deed May 27, 1903, which was all the real estate attached by the plaintiff in Newark, and of the value of less than five hundred dollars; that the plaintiff's debt upon which he seeks to recover judgment accrued March 29, 1905; that said note was secured by a mortgage upon the defendant's real estate in Brighton; that the plaintiff presented his debt for allowance to the referee in bankruptcy, and that it was disallowed for the reason that by the plaintiff's concession his security equalled the amount of his debt; that the plaintiff, since May 1, 1905, had been in possession of the land in Brighton by virtue of his mortgage security and had taken all the rents, products and profits thereof.\\nThe plaintiff surrejoined that though his claim was presented and disallowed because of his concession that his securities equalled it in amount, his attachment lien was obtained at a time .when the defendant had abandoned and was not keeping and occupying said Newark real estate as a homestead, and that the trustee in bankruptcy had no jurisdiction over his attachment. T'o this the defendant demurred.\\n1. The first question is whether the defendant's plea of a discharge in bankruptcy is sufficient. The plaintiff claims that the plea is defective in not alleging that the plaintiff's debt was provable in bankruptcy, that it was a debt from which a discharge in bankruptcy would in law operate as a release.\\nIt is a rule in pleading that, whatever circumstances are necessary to constitute the cause of complaint or the ground of defence, must be stated in the pleadings; facts only are to be stated and not arguments or inferences, or matters of law. But it was decided in Bailey's Admx. v. Gleason, 76 Vt. 115, 56 Atl. 537, following the rule in Bump on Bankruptcy, 11 ed. 724, that the plea need not allege that the debt was provable where the debt alleged in the declaration is prima facie provable. As the declaration in that case counted upon a promissory note, it was held to come within the rule.\\nThat ease differs from this in that here the note is not declared upon, the plaintiff declaring only in the common counts in assumpsit. And the fact that he filed a copy of his note in court as a specification of his claim is not sufficient, for it is held that a specification is no part of the declaration for the purposes of the subsequent pleadings, but is only a limitation upon the plaintiff's proof. Lapham v. Briggs, 27 Vt. 26; Lewis v. Jewett, 51 Vt. 378.\\nIn accordance with the decision in Bailey's Admx. v. Gleason, it must be held that, as the declaration does not show the plaintiff's debt to have been provable in bankruptcy, the plea is defective in not alleging that fact.\\nThe defendant's demurrer discloses the defect in his plea, for in whatever stage of the pleadings a demurrer is taken, it reaches back through the whole record and attaches to the first substantial defect in the pleadings, on whichever side it may have occurred. The plea, therefore, does not set up a good defence to the plaintiff's cause of action.\\nAs the demurrer admits all the facts that are well pleaded by the plaintiff, and, as the writ and declaration are blended in one instrument, and, as the writ shows that it was served and the defendant's property attached more than four months before the filing of the defendant's petition in bankruptcy, that fact stands admitted by the defendant.\\nAs the plaintiff's attachment lien was obtained more than four months before the filing of the defendant's petition in bankruptcy, it was not affected by the bankruptcy proceedings, according to section 67 of the national bankrupt act of 1898, and' the plaintiff was entitled to a judgment on his demand notwithstanding the defendant's discharge.\\nWas the plaintiff barred from taking judgment by the action of the bankruptcy court in setting out to the defendant as a homestead all his real estate attached by the plaintiff in Newark ?\\nThe plaintiff alleges that he presented his demand for allowance against the bankrupt's estate, and that it was disallowed by the bankruptcy court on the plaintiff's concession that the demand was adequately secured.\\nUnder section 57 g. of the bankruptcy act of 1898, the plaintiff's claim could not have been allowed unless the plaintiff surrendered his security. The pleadings do not disclose any act done by the plaintiff to invalidate his lien, and the adjudication of the defendant's bankruptcy did not affect it. It was held in Thompson, Trustee, v. Fairbanks, 75 Vt. 361, 56 Atl. 11, 104 Am. St. Rep. 899, that a mortgage lien was not invalidated by an adjudication of the mortgagor's bankruptcy, and in the same case the U. S. Supreme Court in 196 U. S. 516, 25 Sup. Ct. 306, 49 Law. ed. 577, said that the trustee takes the property of the bankrupt in the same plight and condition as the bankrupt himself held it, and subject to all the equities impressed upon it in the hands of the bankrupt. That case and Batchelder v. Wedge, 80 Vt. 353, 67 Atl. 828, are decisive of the questions here raised.\\nThe case of White et al. v. White et al., 68 Vt. 161, 34 Atl. 425, is not in point for the defendant. This is not a case where the plaintiff elected to take one of two inconsistent remedies. The plaintiff avers and the demurrer admits that prior to the time of the attachment of the Newark land the defendant had abandoned and was not keeping and occupying the land as a homestead. His lien was not impaired by his objecting to the land being set out as a homestead.\\nDemurrer sustained; plea adjudged insufficient; cause remanded.\"}"

vt/4472992.json

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+"{\"id\": \"4472992\", \"name\": \"John Farwell v. Joseph S. Bean\", \"name_abbreviation\": \"Farwell v. Bean\", \"decision_date\": \"1909-04-13\", \"docket_number\": \"\", \"first_page\": \"172\", \"last_page\": \"174\", \"citations\": \"82 Vt. 172\", \"volume\": \"82\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:39:59.047579+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Rowell, C. J., Munson, Watson, and Haselton, JJ.\", \"parties\": \"John Farwell v. Joseph S. Bean.\", \"head_matter\": \"John Farwell v. Joseph S. Bean.\\nFebruary Term, 1909.\\nPresent: Rowell, C. J., Munson, Watson, and Haselton, JJ.\\nOpinion filed April 13, 1909.\\nCovenants \\u2014 Breach of Warranty \\u2014 Measure of Damages \\u2014 Conclusiveness of Judgment of Eviction.\\nIn an action for breach of warranty against all lawful claims, plaintiff may recover the value of the premises at the time of his eviction, with interest, and his costs and expenses in the action of eviction.\\nWhere a grantor of real estate was vouchee in an eviction suit by a third person against the grantee, the judgment therein is conclusive on the grantor in the grantee\\u2019s action against him for' breach of his covenant of warranty.\\nCovenant for breach of warranty against all lawful claims. Heard on the report of a referee at the December Term, Windsor County, 1907, Powers, J., presiding.\\nIt appears from the record that' on September 29, 1832, the Society for the Propagation of the Gospel in Foreign Parts, a corporation established and existing according to law, leased the premises described in the plaintiff\\u2019s declaration to Elisha Parhhurst, his heirs, executors, administrators, and assigns, so long as wood grows and water runs, at an annual rent of eighteen dollars payable on the first day of February, with the right of re-entry in case the rent reserved or any part thereof should remain unpaid for the space of ten days after the same should become due; that on March 18, 1893, the defendant acquired by deed the lessee\\u2019s right in the premises, subject to said lease, in and by which deed it is stipulated that the grantee therein \\u201c agrees to assume and pay the rent due on the 1st day of February last, and all future rents as they may become due\\u201d; that he paid the rents up to February 1, 1895, but not later; that on August 29, 1902, the defendant sold and conveyed to the plaintiff the same premises for the sum of four hundred fifty dollars, the conveyance being by warranty deed in com mon form with the usual covenants, including the covenant of warranty against all lawful claims whatever, the plaintiff at the same time taking possession of the premises.\\nJuly 18, 1904, the Propagation Society brought its action of ejectment under the statute against the plaintiff herein, before a justice of the peace, alleging that he was in possession of said premises \\u201cwhich he holds unlawfully and against the right of the plaintiff.\\u201d On notice from his grantee of the pendency of that suit, the grantor, the defendant herein, appeared and defended the same. On trial it was found that the Society was entitled to the possession of the premises, and judgment was rendered in its favor for the possession thereof, and for fifty dollars as rents, and its costs, taxed and allowed at two dollars and eighty-one cents. No appeal was taken from that judgment. The grantee thenceforth remained in possession of the premises under an arrangement with the Society. Subsequently the suit at bar was brought for breach of the covenant of warranty in the defendant\\u2019s deed to the plaintiff, and in the trial of the case a certified copy of the record of the judgment in the ejectment case was introduced in evidence and made a part of the referee\\u2019s report. Judgment was rendered on the report for the plaintiff to recover four hundred fifty dollars (the value of the premises), and interest thereon since August 1904, and his costs. To which judgment defendant excepted.\\nThe defendant also brought his petition for a new trial, on the ground of newly discovered evidence, to the Supreme Court for Windsor County at its October Term, 1908, which \\u2022petition was heard with the exceptions at the February Term, 1909.\\nGilbert A. Davis and James G. Harvey for the defendant.\\nPingree & Pingree for the plaintiff.\\nThe value of the premises is the recognized measure of damage in breach of covenant of warranty. Strong v. Shumiuay, 1 D. Chip. 110; Park v. Bates, 12 Yt. 387; Pitkin v. Leavitt, 13 Yt. 379; Keith v. Day, 15 Yt. 660; Smith v. Sprague, 40 Yt. 46. Plaintiff owed the covenantor no duty to remain in an unlawful possession and assume the burden of a fruitless law suit. Drew v. Fowle, 10 N. H. 537; Rawle on Covenants, 4th Ed., 146-7.\", \"word_count\": \"1009\", \"char_count\": \"5760\", \"text\": \"Watson, J.\\nOnly one question is presented in argument on the exceptions. It is urged that an erroneous rule of damages was adopted in the court below in allowing the plaintiff to recover the amount of the value of the premises at the time of his eviction and interest thereon. Herein the defendant has no cause of complaint. The rule applied is the one established in this State, except that there may be added to the value of the land the costs and expense of the action of the eviction, when any are shown. Williams v. Witherbee, 2 Aik. 329; Park v. Bates, 12 Vt. 381, 36 Am. Dec. 347; Pitkin v. Leavitt, 13 Vt. 379; Brown v. Taylor, 13 Vt. 631, 37 Am. Dec. 618; Keith v. Day, 15 Vt. 660; Turner v. Goodrich, 26 Vt. 707.\\nThe defendant brings his petition for a new trial on the ground of newly discovered evidence tending to show that the land conveyed by him to the plaintiff is not in fact any part of the -land owned by the Propagation Society. But the fact that the land conveyed to the plaintiff by the defendant was the same land held by him subject to the lease from the society and the payment of rent thereunder, was determined by the judgment in ejectment; and the defendant here being vouchee in that suit, the judgment is conclusive upon him in this subsequent action against him for breach of his covenant of warranty. Keith v. Day, Pitkin v. Leavitt, and Brown v. Taylor, cited above. It follows that the so-called newly discovered evidence is not admissible and can form no basis for a new trial.\\nJudgment affirmed. Petition for neto trial dismissed with costs.\"}"

vt/4566570.json

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+"{\"id\": \"4566570\", \"name\": \"Louis Girard et ux. v. Vermont Mutual Fire Insurance Company\", \"name_abbreviation\": \"Girard v. Vermont Mutual Fire Insurance\", \"decision_date\": \"1931-05-05\", \"docket_number\": \"\", \"first_page\": \"330\", \"last_page\": \"340\", \"citations\": \"103 Vt. 330\", \"volume\": \"103\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:53:46.930701+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Powers, C. J., Slack, Moulton, 'Wiixcox, and Thompson, JJ.\", \"parties\": \"Louis Girard et ux. v. Vermont Mutual Fire Insurance Company.\", \"head_matter\": \"Louis Girard et ux. v. Vermont Mutual Fire Insurance Company.\\nJanuary Term, 1931.\\nPresent: Powers, C. J., Slack, Moulton, 'Wiixcox, and Thompson, JJ.\\nOpinion filed May 5, 1931.\\nFred L. Laird and George M. Hogan for the defendant.\\nP. L. Shangraw, F. L. Webster, and M. H. Alexander for the plaintiffs.\", \"word_count\": \"3212\", \"char_count\": \"17424\", \"text\": \"Powers, C. J.\\nThis is an action on a fire insurance policy brought by the assured for the use and benefit of a mortgagee of the property covered. It appeared that Louis Girard and his wife Cora owned and occupied a farm in Berkshire, which they had mortgaged to the Kichford Savings Bank & Trust Co., for the sum of $8,000. The buildings on the place were insured by the defendant by a policy which contained a provision that any loss on the real estate should be payable to the Bank aforesaid, as its interest might appear. The buildings burned, the company refused to pay, and this suit was brought. The defense is based upon the claim that the Girards or one of them burned the buildings- to defraud the insurer. The trial below resulted in a verdict for the plaintiff, and the defendant excepted.\\nThe rights of the parties here contending depend largely upon the clause in the policymaking the loss payable to the bank. This clause is what -is called the \\\"open mortgage clause,\\\" or the \\\"loss payable clause.\\\" It merely provides that any loss shall be payable' to the mortgagee as its interest may appear. Under such a provision, a mortgagee stands as an appointee, and not as an assignee. The contract is between the insurer and the mortgagor; the insurance is on the property of the mortgagor as owner; it is not on the interest of the mortgagee. So a suit on the policy is well brought in the name of the mortgagor for the use and benefit of the mortgagee. Powers v. New England F. Ins. Co., 69 Vt. 494, 495, 38 Atl. 148. The rights of the latter in case of loss are wholly derivative, and cannot exceed those of the former. These propositions are well established. Home Loan & Finance Co. v. Fireman's Fund Ins. Co., 221 Ala. 529, 129 So. 470, 471; Grosvenor v. Atlantic Fire Ins. Co., 17 N. Y. 391; Warbasse v. Sussex County Mut. Ins. Co., 42 N. J. Law, 203; Brunswick Sav. Inst. v. Commercial Union Ins. Co., 68 Me. 313, 315, 28 A. R. 56; Brecht v. Law Union & C. Ins. Co. (C. C. A.), 160 Fed. 399, 18 L. R. A. (N. S.) 197, 206; Collinsville Sav. Soc. v. Boston Ins. Co., 77 Conn. 676, 60 Atl. 647, 69 L. R. A. 924, 925; Fitchburg Sav. Bank v. Amazon Ins. Co., 125 Mass. 431, 434; State Sav. Bank v. Shible Mut. Fire Ins. Co., 172 Minn. 122, 214 N. W. 926, 927. So it is that any defense that can be made by the insurer to a suit brought on the policy by a mortgagor for his. own benefit, is equally available to it in a suit brought in behalf of the mortgagee. And, since a mortgagor who wilfully burns the property insured can take no benefit under his policy, Rent-a-Car Co. v. Globe & Rutgers Ins. Co., 158 Md. 169, 148 Atl. 252, 256, it follows that a mortgagee, whose only rights are what are afforded by the \\\"open mortgage clause,\\\" can take nothing in such circumstances. Hocking v. Virginia F. & M. Ins. Co., 99 Tenn. 729, 42 S. W. 451, 39 L. R. A. 148, 63 A. S. R. 862; Ford v. Iowa State Ins. Co., 317 Mo. 1144, 298 S. W. 741, 56 A. L. R. 842; Westmacott v. Hanley, 22 Grant Ch. (U. C.) 382; Smith v. Germania F. Ins. Co., 102 Ore. 569, 202 Pac. 1088, 19 A. L. R. 1444. If, then, the Girards wilfully burned the buildings covered by the defendant's policy, there can be no recovery here, though the bank be entirely innocent of any wrong.\\nSubject to the defendant's exception, the plaintiff was allowed to show that the bank, at some time long before the policy in question was issued, gave the company a written guaranty covering all assessments which might accrue on any policy insuring property on which the bank held mortgages, and that thereunder it had paid one assessment on this very policy. This evidence was not relevant to any issue in the case, and therefore inadmissible. It was offered and received as tending to show a contractual relation between the company and the bank, based upon a sufficient consideration. But as was objected to it, it was wholly outside the pleadings, and did not and could not affect the rights of the parties in any way. It was well calculated to impress the jury as a fact giving the bank a special advantage in the action on trial.\\nIt is true that this theory was not submitted to the jury as a basis of recovery or as affecting the rights of the parties in any way; but it was not alluded to in the charge of the court, nor in any way withdrawn or warned against. In these circumstances, and in view of the character of the evidence, we think it must have been prejudicial, and this exception must be sustained. This disposes of exceptions numbered from 1 to 8, inclusive.\\nExceptions 9 to 14 relate to the exclusion of certain circumstantial evidence, consisting of acts and sayings of the Girards, together with certain conditions and circumstances tending, it was claimed, to establish the fraudulent character of the fire. As we have often said, when fraud is the issue, the evidence necessarily takes a wide range. Niles v. Danforth, 97 Vt. 88, 95, 122 Atl. 498; Downing v. Wimble, 97 Vt. 390, 394, 123 Atl. 433; Land Finance Corp. v. Sherwin Elec. Co., 102 Vt. 73, 80, 146 Atl. 72. So here, though the fraud in its ultimate aspect was the burning of the buildings, any fact or circumstance, before or after that event, which in any way indicated a purpose to accomplish that fraudulent result was admissible. Indeed, that ultimate fact might be wholly established by circumstantial evidence. Raithel v. Hall, 99 Vt. 65, 72, 130 Atl. 749. And, when such evidence is resorted to, objections to testimony on the ground of irrelevancy are not favored because the force and effect of circumstantial facts depend largely upon their relation to each other; and acts and circumstances, although wholly inconclusive when separately considered, may by their number and joint operation be entirely sufficient to establish the factum probandum. Castle v. Bullard, 23 How. 172, 16 L. ed. 424, 425. Nevertheless, each act and circumstance, either by itself or in connection with other evidence admitted or offered in that connection, must contribute something to that result. If, when so considered, they are as consistent with innocence as with guilt, they should be rejected. They would not then afford a rational basis for inferring the ultimate fact, so would not be \\\"fit to be considered.\\\" Smith, v. Martin, 93 Vt. 111, 129, 106 Atl. 666, 674. Then, too, such acts and circumstances stand in the law of evidence like representations alleged to be fraudulent: If they are fairly susceptible of two constructions, the one that frees them from the imputation of fraud must be accepted. Moncion v. Bertrand, 98 Vt. 332, 334, 127 Atl. 371. How far into these matters the testimony shall be allowed to go, is, of necessity, left somewhat to the discretion of the trial court. Townsend v. Felthousen, 156 N. Y. 618, 51 N. E. 279, 281; Thomas v. Miller, 202 Mich. 43, 167 N. W. 859, 860; First Nat. Bank v. Harvey, 29 S. D. 284, 137 N. W. 365, 369.\\nThe offer to show what Girard said after the fire about his plans, and the offer to show what was said when Girard paid his assessment, came within the rule just stated, and we cannot say that they were not properly excluded as a matter of discretion.\\nThe defendant offered to show by the witness Wilder that he went to the Girard farm late in the afternoon before the fire to serve a writ of attachment, and that he searched the barn and could find no calves there to attach. This was excluded, and the defendant excepted. In view of the nature of the defense, evidence that the plaintiffs were being pressed by creditors was a relevant fact. Commonwealth v. Haddad, 250 Mass. 391, 145 N. E. 561, 563; State v. Rosenswieg, 168 Minn. 459, 210 N. W. 403, 405; State v. Gates, 197 Iowa, 777, 197 N. W. 908, 909. If Wilder was then to serve a writ as stated, this fact should have been admitted. But, so far as this feature pf the offer goes, it does not appear that any harm resulted from its exclusion; for the financial condition of the Girards was sufficiently shown. The' search for calves, if made, bore on another question. But its importance depended upon the further fact that the plaintiffs claimed insurance on calves in their proof of loss. If they did, this search would have a tendency to prove one of the steps in the general scheme to defraud the company. But the plaintiff objected on the ground that there was then no evidence in the case that such insurance was claimed, stating that the proof of loss, Plffs. Ex. 4, was admitted only to show the claim for loss on the real estate; and the transcript sustains this claim. So, when this offer was made it was inadmissible; for, the rule is that to secure a reversal for the exclusion of evidence, it must be shown that it was admissible in the then present aspect of the case. State v. Lapan, 101 Vt. 124, 132, 141 Atl. 686.\\nEvidence was introduced by the defendant tending to show that, prior to the fire, Girard had caused six truck loads of furniture and other personal property, including stanchions from the barn, to be transported to a farm in Georgia some 30 or 35 miles away, and there stored; that these loads went in the night, and that the last one went the night before the fire. This line of evidence also tended to show that this property was taken out of the buildings to the truck by Girard and his children, and that Mrs. Girard was present and gave some assistance. The defendant improved Thomas Laden as a witness. He held a second mortgage on the farm and a chattel mortgage on the personal property. The defendant offered to show by him that, on the day after the fire, Girard, in answer to his questions, told him that he was away the night of the fire, and that neither he nor anyone else had taken away any of the furniture or other property. This was excluded, and the defendant excepted. That the removal of the property above referred to was evidence tending to show that Girard and his wife or one of them were responsible for the fire is not questioned. People v. Smith, 162 N. Y. 520, 56 N. E. 1001; State v. Mann, 39 Wash. 144, 81 Pac. 561; Patrick v. State, 18 Ala. App. 335, 92 So. 87, 88. But evidence of that fact, by the testimony of Laden, was afterwards admitted. So nothing can be claimed here so far as its exclusion is concerned. But the fact that he falsified as to where he was at the time of the fire \\u2014 if he did so falsify \\u2014 was also an incriminating circumstance, and should have been received. Burrill, Cir. Ev. 460, 468. It is claimed that the evidence did not tend to show that Girard was at home at the time of the fire. It is true that the witnesses who saw a man at the door that night with a lantern did not identify him as Girard, but the circumstances indicate that it was, and Mrs. Girard, according to the evidence, told the Duvals how the family drove into a side road, and three of them went back and set the fire. This testimony evidently referred to Girard and the boys, or at least the jury could so infer. Girard's falsehood as to his whereabouts is in the law of evidence like attempting to conceal one's identity, as in State v. Taylor, 70 Vt. 1, 39 Atl. 447, 42 L. R. A. 673, 67 A. S. R. 648; attempting to get witnesses \\\"out of the way,\\\" spoken of in State v. Barron, 37 Vt. 57, 61; asserting a falsehood when charged with crime, as in State v. Bradley, 64 Vt. 466, 470, 24 Atl. 1053; flight, as in State v. Chase, 68 Vt. 405, 409, 35 Atl. 336; a false alibi, as in State v. Ward, 61 Vt. 153, 194, 17 Atl. 483, and State v. Manning, 75 Vt. 185, 189, 54 Atl. 181; an attempt to persuade one to speak falsely, as in State v. Manley, 82 Vt. 556, 557, 74 Atl. 231; introducing false and fabricated evidence at the trial, as in State v. Williams, 27 Vt. 724, 726, and State v. Magoon, 68 Vt. 289, 292, 35 Atl. 310; falsely attempting to fasten guilt upon another party, as in State v. Totten, 72 Vt. 73, 78, 47 Atl. 105.\\nThe exclusion of this part of the offer was error. The offer of Laden's talk with Girard about calves was properly rejected for the reason that it did not go far enough to disclose that the expected testimony would be of any probative value.\\nThere was no harmful error in the admission of the note and mortgage held by the bank. In the first place, the existence of this encumbrance on the real estate had already appeared by the application, the policy, and the proof of loss. It was alleged in the complaint, and it was not denied in the answer or at the trial. Then, too, inasmuch as this suit was brought and carried on for the use and benefit of the bank, it was necessary to show the bank's interest, so that it might control the judgment until its claim was extinguished. And, finally, counsel for the defendant admitted when the papers were offered, that they were admissible for the purpose of showing how much was due the bank.\\nNo claim is here made that such evidence should be addressed to the court and not to the jury, so we give it no attention.\\nThere was no error in excluding Larock's opinion about the person or persons seen at the Girard house on the night of the fire. The circumstances were not complicated or obscure; Larock said that it was only a very few seconds after he saw the man with the lantern that he saw the person in the house. The jury could say as well as the witness whether it was possible that two persons were there.\\nThe defendant called the clerk of the court as a witness, and offered to show by him (1) the record of a foreclosure brought by the bank against Girard and the Ladens prior to the fire; and (2) the record of the conviction of Louis Girard for burning these buildings with intent to defraud the defendant. The offers were excluded, and the defendant excepted.\\nThe first offer was properly excluded because the only ground on which it was offered was \\\"in order to get the full record of the parties to that proceeding in the case.\\\" This reason was wholly inadequate, and the facts tendered were irrelevant to any issue being tried.\\nThe second offer requires more attention. As we have seen, anything that would be a defense as against the Girards, would be a defense against the bank. But it does not follow that such a defense could be proved by the record referred to or even be evidenced thereby. There is a vast difference in admitting a judgment to prove its rendition, and admitting it to prove the facts on which it is predicated.\\nFor the former purpose, if relevant, it may always be given in evidence; for the latter purpose it is not admissible in a civil suit though such facts are directly in issue. This doctrine is supported by the great weight of authority, though cases are to be found to the contrary. The reasons for the rule are well stated in Interstate Dry Goods Stores v. Williamson, 91 W. Va. 156, 112 S. E. 301, 31 A. L. R. 258, and the whole subject, together with a collection of the cases, is covered by a note thereto. Our own cases are in accord. Quinn v. Quinn, 16 Vt. 426; Robinson v. Wilson, 22 Vt. 35, 36, 52 A. D. 77; Fratini v. Caslini, 66 Vt. 273, 276, 29 Atl. 252, 44 A. S. R. 843. These cases put the matter on the ground that the convictions evidenced by the record may have been obtained on the testimony of the person in whose favor it is offered. But, as Chief Justice Shaw said in Mead v. Boston, 3 Cush. (57 Mass.) 404, 407, \\\"It is not the fact that the verdict was or was not obtained upon the testimony of the plaintiff or other person interested, that renders the conviction incompetent evidence, but it is rejected because it is res inter alios.\\\"\\n\\u2022 It is earnestly argued that a distinction exists between the case in hand and other cases in its general class, and that public policy requires us to accept the view of the law contended for by the defendant, but we are not willing to conform to this argument, and are quite content to leave, the law of the subject as we find it. We have tried to make it plain that the guilt of the Girards would be a complete defense here; all we hold is that guilt must be proved anew and cannot be established in whole or in part by the record of Girards' conviction.\\nThe defendant argues that to permit a recovery by an assured who has deliberately set fire to his property \\\"shocks the most fundamental notions of justice.\\\" We quite agree. But the fact that the assured did set the fire cannot be assumed; it must be proved; and that proof must be of such form and character as the rules of evidence require.\\nIn our discussion of the exception last disposed of, we have deliberately broadened the scope of it. The record was offered as a bar. It is so treated in the answer. But, inasmuch as the c\\u00e1se is to go back for a retrial, we have deemed it best to cover the whole question of the record's admissibility.\\nAn exception was taken to the charge, but it is not briefed, and we treat it as waived.\\nThe defendant moved for a verdict, in arrest of judgment, and for a judgment. But as the retrial may materially change the ease made by the proof, we do not consider the exceptions saved when these motions were overruled.\\nJudgment reversed, and cause remanded.\\nNote. Willcox, J., sat in this case, hut took no part in the decision.\"}"

vt/4570505.json

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+"{\"id\": \"4570505\", \"name\": \"Oakdale Farms, Inc. v. Rutland Railroad Company\", \"name_abbreviation\": \"Oakdale Farms, Inc. v. Rutland Railroad\", \"decision_date\": \"1932-02-04\", \"docket_number\": \"\", \"first_page\": \"279\", \"last_page\": \"282\", \"citations\": \"104 Vt. 279\", \"volume\": \"104\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T18:38:05.604004+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Powers, C. J., Slack, Moulton, Thompson, and Graham:, JJ.\", \"parties\": \"Oakdale Farms, Inc. v. Rutland Railroad Company.\", \"head_matter\": \"Oakdale Farms, Inc. v. Rutland Railroad Company.\\nJanuary Term, 1932.\\nPresent: Powers, C. J., Slack, Moulton, Thompson, and Graham:, JJ.\\nOpinion filed February 4, 1932.\\nPhilip M. M. Phelps for the plaintiff.\\nEdwin W. Lawrence for the defendant.\", \"word_count\": \"805\", \"char_count\": \"4675\", \"text\": \"Thompson, J.\\nThe material allegations in the plaintiff's complaint are that on November 3, 1927, at Winthrop, N. Y., it delivered to the defendant, a common carrier, and the defendant accepted, seventy-seven cans of milk to be safely carried to New York City, and there to be delivered to the plaintiff for a reasonable reward; that the defendant did not safely carry said milk to New York City nor deliver it to the plaintiff, but, on the contrary thereof, \\\"by the negligence, carelessness and default of the defendant, said seventy-seven cans of milk # were broken into, spilled, plundered, stolen and destroyed, and became and were wholly lost to the plaintiff.\\\"\\nThe defendant filed an answer in which it alleged, among other things, that the tariff filed and published according to law, under which said shipment was made, and the bill of lading under which it was made, contain certain provisions, which are set forth in the answer, limiting the time within which suit for loss, damage or injury to property shall be instituted, and that the plaintiff failed to comply with such provisions.\\nThe material allegations in the answer are that the plaintiff failed to institute suit not later than two years and one day after it received notice from the defendant that it had disallowed plaintiff's claim, and that plaintiff failed to institute suit within two years and one day after a reasonable time for the delivery of said' milk had elapsed, as specified in the provisions of the published tariff and the bill of lading.\\nThe plaintiff demurred to this part of the answer. The demurrer was overruled; the answer was adjudged sufficient; and the plaintiff took and was allowed an exception.\\nThe grounds of demurrer relied upon are that the plaintiff's action is not based upon any contractual relation existing between the parties, but is an action of tort for the conversion of the milk; that the provisions in the bill of lading limiting the time within which suit shall be instituted is an improper defense, as the plaintiff's suit was begun within three years after its cause of action accrued, the statutory limitation applicable thereto.\\nIn order to charge one for the conversion of property, something more than a mere nonfeasance must be shown. Something equivalent to an affirmative act by the person charged is necessary. The law is settled that when a common carrier receives property for transportation his mere nonfeasance, as the loss of the property through his negligence, does not render him liable in an action of trover. Manley Bros. v. Boston & Maine R. R., 90 Vt. 218, 221, 97 Atl. 674.\\nThe allegations in the plaintiff's complaint do not show a conversion of the milk by the defendant, but they do set forth an action of tort for negligence of the defendant by which the milk was lost or destroyed while being transported by it.\\nWhen the defendant accepted the milk for transportation, the duties and obligations of a common carrier imposed upon it by law followed as a matter of course. Saliba v. New York Central R. R. Co., 101 Vt. 56, 140 Atl. 491; Haglin-Stahr Co. v. Montpelier & Wells River R. R., 92 Vt. 258, 261, 102 Atl. 940. But this common-law liability may be modified by contract, and when the plaintiff received the bill of lading at the time it delivered the milk to the defendant, the law presumes that it assented to the terms and conditions of the bill of lading which modified the common-law liability of the defendant, and agreed to be bound by them so far as they are just and reasonable in the eye of the law and are not inconsistent with public policy. Davis v. Central Vt. R. R. Co., 66 Vt. 290, 29 Atl. 313, 44 A. S. R. 852; Leavans v. American Express Co., 86 Vt. 342, 85 Atl. 557, Ann. Cas. 1915C, 1188.\\nThe plaintiff concedes that the provisions in the bill of lading limiting the time within which it should institute suit for the loss of the milk are reasonable and valid, and would control if the action had been brought on the bill of lading. The plaintiff's action is based upon the common-law liability of the defendant as modified by the reasonable provision in the bill of lading limiting the time within which suit shall be instituted; and the cases which we have cited show that this limitation controls in an action such as the plaintiff brought in this case. There was no error in overruling the demurrer of the plaintiff.\\nJudgment affirmed, and cause remanded.\"}"

vt/4587400.json

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+"{\"id\": \"4587400\", \"name\": \"Harry Tinney v. Elbert C. Crosby\", \"name_abbreviation\": \"Tinney v. Crosby\", \"decision_date\": \"1941-10-07\", \"docket_number\": \"\", \"first_page\": \"95\", \"last_page\": \"107\", \"citations\": \"112 Vt. 95\", \"volume\": \"112\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T19:06:15.988893+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Moulton, C. J., Sherburne, Buttles, Sturtevant and Jeffords, JJ.\", \"parties\": \"Harry Tinney v. Elbert C. Crosby.\", \"head_matter\": \"Harry Tinney v. Elbert C. Crosby.\\nMay Term, 1941.\\nPresent: Moulton, C. J., Sherburne, Buttles, Sturtevant and Jeffords, JJ.\\nOpinion filed October 7, 1941.\\nLawrence & 0 \\u2019Brien for defendant.\\nAsa S. Bloomer for plaintiff.\", \"word_count\": \"3800\", \"char_count\": \"20897\", \"text\": \"Moulton, C. J.\\nTbe plaintiff was struck and severely injured by a stone thrown as tbe result of a blasting operation, in which be was employed. He brought this action in tort against tbe defendant, who was in charge, alleging negligence in tbe amount of explosive used, in tbe manner of placing it, and in failing to supply him with a safe place in which to do bis work. Tbe verdict was for tbe plaintiff, and tbe cause is here on tbe defendant's exceptions. These exceptions are to tbe admission of certain opinion evidence, and to tbe denial of a motion for a verdict.\\nTbe exceptions to tbe evidence present only one question. Tbe plaintiff called several witnesses who testified to their experience in blasting and in tbe use of dynamite and other explosives. Each was asked substantially tbe same questions and was permitted to give substantially tbe same answers, subject to clearly expressed exceptions by tbe defendant. One instance will suffice to illustrate the point involved.\\nThe witness Adelord Merrow was asked whether, based upon the evidence in the ease, he had an opinion as to the cause of the injury to the plaintiff, and answered that he had. The next question was: ' ' State what in your opinion was the cause of the injury to this plaintiff?\\\", to which he replied \\\"Well I should call it negligent use of high explosive. ' ' A motion to strike out this testimony was made and denied, subject to defendant's exception.\\nNo. 47 of the Acts of 1939, upon which the plaintiff relies to support the rulings to which we have just referred, reads as follows : ' ' Section 1. Experts, testimony. An expert witness may be asked to state his opinions, whether these opinions are based upon the witness' personal observation, or on evidence introduced at the trial and seen or heard by the witness, or on his technical knowledge of the subject, without first specifying hypothetically in the question the data on which these opinions are based. Section 2. Same. An expert witness may be required, on direct or cross-examination, to specify the data on which his opinions are based.\\\"\\nThis statute is practically identical with section 9 of the Uniform Expert Testimony Act adopted by the National Conference of Commissioners on Uniform State Laws, in 1937, the only difference being that in the Act, as framed by the conference, the word \\\"inferences\\\" is used, where our act employs the word ' ' opinions ' '; and it is the only part of the Uniform Act that has been passed by the Legislature of this State. The purpose and intent of the Statute, as clearly appears not only from its wording but from the comment appended thereto in the 1937 Handbook of the Conference, pp. 345-347, to which we may refer as an aid to its construction (Peoples' Svgs. Bit. & Tr. Co. v. Munsert et al., 212 Wis. 449, 249 N. W. 527, 88 A. L. R. 1306, 1308, 1312), is to exempt the offering party from the requirement of using the hypothetical question in the examination of expert witnesses, but to accord him the option of using it, both to be left to the discretion of the trial Court, and to permit the opposing party on cross examination to call for a hypothetical specification of the data which the witness has used as the basis of his opinion. See Wig-more, Evidence, 2d. Ed., Sec. 686, quoted in the comment above referred to. It does not enlarge the scope of expert testimony or the class of subjects upon which opinion evidence is receivable. As the comment states there is \\\"no attempt to obstruct or limit the jury in its determination of the ultimate fact. ' '\\nThere was prejudicial error in the admission of the evidence and in the refusal to strike the answer from the record. The facts and circumstances of the case were susceptible of being made clear to the jury. The inference to be drawn from the evidence, if it fairly supported the plaintiff's claim, was one which the members of the jury, exercising their sound judgment under the instructions of the Court, were capable of drawing for themselves and did not require a particular knowledge and skill. The question of the defendant's negligence was, under such circumstances, for them to determine, and was not the subject of opinion evidence. This principle has been recognized in many decisions of this Court. Hutchinson v. Knowles, 108 Vt. 195, 204, 184 Atl. 705; Lucas v. Kelley, 102 Vt. 173, 176, 147 Atl. 281; Landry v. Hubert, 100 Vt. 268, 275, 137 Atl. 97; Desmarchier v. Frost, 91 Vt. 138, 143, 99 Atl. 782; Houston v. Brush & Curtis, 66 Vt. 331, 338, 29 Atl. 380; Stowe, Admx. v. Bishop, 58 Vt. 498, 500, 3 Atl. 494, 56 Am. Rep. 569; Bemis v. C. V. R. R. Co., 58 Vt. 636, 639, 3 Atl. 531; Weeks v. Lyndon, 54 Vt. 638, 645; Oakes v. Weston, 45 Vt. 430, 432; Fraser v. Tupper, 29 Vt. 409, 410, 411; Clifford v. Richardson, 18 Vt. 620, 626; Lester v. Town of Pittsford, 7 Vt. 158, 161, 162. See, also, to the same effect: Inland and Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 559, 11 Sup. Ct. 653, 35 L. Ed. 270, 273; Whitman v. Boston Elevated Co., 181 Mass. 138, 139, 63 N. E. 334; Twomey v. Swift, 163 Mass. 273, 275, 39 N. E. 1018; White v. Ballou, 8. Allen (Mass.) 408, 409; New Haven Bendering Co. v. Connecticut Co., 89 Conn. 252, 93 Atl. 528, 531; Kelly v. City of Waterbury, 96 Conn. 494, 114 Atl. 530, 531; Baltimore, C. & A. Ry. Co. v. Moon, 118 Md. 380, 84 Atl. 536, 539; Hanrahan v. Mayor etc., of Baltimore, 114 Md. 517, 80 Atl. 312, 317; Taylor v. Kevlin, 121 N. J. L. 142, 1 Atl. 2d. 433, 435; Krieg v. Timken, 102 N. J. L. 307, 131 Atl. 905, 906; Chambers v. Mesta Machine Co., 251 Pa. 618, 97 Atl. 101, 103; Hill v. Portland & R. R. Co., 55 Me. 438, 92 Am. Dec. 601, 605. What we have just said disposes of all the exceptions taken to this sort of testimony.\\nThe motion for a directed verdict was based upon three grounds: (1) that there was no evidence fairly and reasonably tending to show that the defendant was negligent; (2) that the evidence showed, as a matter of law, that the plaintiff was contributorily negligent, and (3) that he assumed the risk. In passing upon this motion we leave out of consideration the opinion evidence which we have just held was erroneously received, under objection and exception. Booth v. N. Y. C. R. R. Co., 95 Vt. 9, 15, 112 Atl. 894; Creech v. N. Y. C. and St. L. Ry. Co., 22 Ohio App. 216, 153 N. E. 299, 300; Sartain v. Walker, 60 Okla. 258, 159 Pac. 1096, 1105; Gillett v. Burlington Ins. Co., 53 Kan. 108, 36 Pac. 52, 53.\\nIn passing upon the motion for a directed verdict the evidence must be taken in the light most favorable to the plaintiff, and the ruling of the trial court sustained if the evidence, so viewed, fairly and reasonably tends to support the verdict. Picknell v. Bean, 99 Vt. 39, 41, 130 Atl. 578; MacDonald v. Orton, 99 Vt. 425, 427, 134 Atl. 599. The effect of modifying evidence is to be excluded. Ste. Marie v. Wells, 93 Vt. 398, 399, 108 Atl. 270. Contradictions and contradictory inferences are for the jury to resolve, Lee v. Donnelly, 95 Vt. 121, 128, 113 Atl. 542; Comeau v. Manuel and Sons Co., 84 Vt. 501, 509, 80 Atl. 51. The tendency of the evidence and not its weight is to be considered. Cummings v. Conn. Gen. Life Ins. Co., 101 Vt. 73, 85, 142 Atl. 82; Fraser v. Blanchard and Crowley, 83 Vt. 136, 147, 73 Atl. 995, 75 Atl. 797.\\nAn examination of the record with the foregoing principles in mind, shows that it was open to the jury to find these facts: The purpose of the blasting was to remove boulders from the bed of a stream known as Roaring Branch Brook in order to prevent flooding of the adjacent land and highway in times of high water. These boulders were composed of hard brittle stone, of varying size and weighing' on the average 15 to 20 tons. Some were embedded in the gravel, and the bed of the stream was thickly covered with them. The course of the stream, at the places where the blasting was done, is from north to south, and its average width is twenty-five to thirty feet.\\nThe plaintiff, who was one of the gang of men employed in the blasting operations, lived with his family in a house situated about 600 feet west of Roaring Branch Brook. He was forty years old and had worked as a common laborer. Five years be fore the accident he had served as temporary helper to a dynamite foreman for about two months on highway work, his duties being to bring the boxes of dynamite to the place of the blast and then to go some distance away to give warning to anyone who might be approaching, although there were a few times when he would take shelter with the.foreman when the latter exploded the charge. He had also been permitted to explode some very small blasts involving small stones under the personal supervision of his foreman who refused to recommend him as being competent for a position as dynamiter.\\nThe blasting had been going on for three days previous to the one upon which the plaintiff was injured. The method employed was what was termed as ' ' open blasting. ' ' A number of sticks of 60% dynamite would be inserted in a cavity dug under the boulder to be removed, detonating caps adjusted and attached to a wire which led to a battery operated by pushing down a plunger. Several charges, as many as six or seven, put in different cavities under different boulders would be connected and exploded simultaneously. The charge varied with the size of the cavity, but no more than fifty pounds in any one place, and on the average a little less than 150 pounds in an entire blast. The battery, on the first three days, was placed beside a large elm tree some 50 feet northeast of plaintiff's house, and the defendant, who operated it, would take shelter behind this tree while so doing. As shown by a plan drawn to scale the elm tree was 550 feet distant from the center of the brook. During the first three days of the operation fragments of stone had been thrown by the explosion and had fallen around the tree and within 50 or 60 feet of the plaintiff's house; and one stone had struck an automobile parked some 800 feet from the blast. Windows in the plaintiff's house, and in other houses farther away, had been broken by the concussion. The plaintiff had seen the defendant firing the blasts. During this time his work consisted in bringing the dynamite to the designated boulders, digging holes under them and placing the charge of explosive therein, under the directions of the man in charge.\\nNothing was put over the charges to confine the explosion and prevent the fragments of rock from being thrown; but the dynamite was placed beneath the surface of the water under the boulders. There were other methods of blasting, known as ' ' snake holding, \\\" \\\" block hole blasting ' ' and ' ' mud capping, ' ' which were known to the defendant, and which if properly used would shatter or heave the boulder without throwing the fragments to any distance, although the progress of the work would be slower. It is true that there was evidence that these methods would not be practical and efficient under the circumstances disclosed, but there was enough to make a question for the jury upon the point.\\nThe defendant testified that, because dynamite is a very dangerous substance, there were certain precautions to be taken for the protection of those working under his charge; that even with a small blast, no one should be permitted to remain within 500 feet of it, and this distance should be increased as the blast grew larger, unless there was some good protection.\\nUp to the day of the accident the defendant's son, who was the town road commissioner, had been in charge of the operation, and the defendant had fired all the blasts, but on that day the commissioner was ill and the defendant took charge. He told the plaintiff to \\\"push the battery\\\" that day, and the latter did so. Several blasts were set off during the morning and early afternoon, without any trouble from flying stones. These blasts varied in size. Late in the afternoon the last blast of the day was prepared. The plaintiff dug a hole with his hands under a boulder about three feet square on top, and asked the defendant whether the cavity was all right. The defendant said that it was. The plaintiff then asked how much dynamite was to be put in, and the defendant said: \\\"Fill it up.\\\" The plaintiff put in ten sticks, told the defendant the number, and said that perhaps it would be a little too much for the size of the stone, to which the defendant replied: \\\"No, that is all right.\\\" More dynamite was placed, but how much more the plaintiff did not know. There was evidence, however, tending to show that, in all, 150 pounds was used in the entire blast, and that the defendant was aware of it. After the explosive had been put in position the plaintiff said to the defendant that, in the course of their work, they had come to a point in the brook nearly opposite the spot where the battery had been placed, and suggested that it should be moved farther away. It was mentioned that there was wire at hand that could be used for this purpose, but the defendant replied that this was not necessary.\\nThe defendant connected the various parts of the blast, tested the wires, and placed the battery in the plaintiff's garden, about 25 feet south of the elm tree. He told the plaintiff to \\\"touch it off\\\" when he should blow his automobile horn, and went along the road to warn anyone who might be coming. The plaintiff heard the horn, called to his wife to assure himself that his children were in the house, went to the road and looked along it, and then returned to the battery and pulled up the handle and pushed it down. Immediately there was an explosion much greater than any preceding one. The ground rumbled, and a bright flash, with a wind that nearly knocked him down, passed by the plaintiff. Pieces of rock flew about him and he started to run for shelter behind the tree, but he was struck and rendered unconscious before he could reach safety. The force of the explosion was such that a log was thrown into the garden and the steps of the house damaged by a stone. Windows in a barn nearly two miles away were broken by the concussion.\\nThe defendant was bound to furnish the plaintiff with a reasonably safe place in which to work. Ryder v. Vermont Last Bloch Co., 91 Vt. 158, 165, 99 Atl. 733. It was also his duty to instruct and caution the plaintiff concerning a danger of which the latter was excusably ignorant. Sanderson v. Boston and Maine R. R., 91 Vt. 419, 424, 101 Atl. 40; Carlton v. E. & T. Fairbanks & Co., 88 Vt. 537, 547, 93 Atl. 462. Since dynamite is, as a matter of law, considered to be a dangerous agency, it was incumbent upon the defendant to take every proper precaution to prevent injury to the plaintiff, and nothing short of a high degree of care would be commensurate with the dangerous character of the explosive, such degree being gauged by the care and prudence that careful and prudent men would exercise in like circumstances. Goupiel v. Grand Trunk Ry. Co., 94 Vt. 337, 342, 343, 111 Atl. 346.\\nOn the evidence the question of the defendant's negligence was for the jury, who might well conclude that the place where the battery was placed by him, and where the plaintiff was told to operate it, was not reasonably safe; that the plaintiff was excusably ignorant of the size of the blast and was given no warning or caution concerning it; and that the use of \\\"open blasting\\\" in view of the evidence tending to show that there were other methods, known to the defendant, fraught with less danger from flying stones, indicated a failure to exercise the requisite degree of care in the circumstances. Booth v. R., W. and O. Terminal R. Co., 140 N. Y. 267, 35 N. E. 592, 24 L. R. A. 105, 107, 37 Am. St. Rep. 552. See, also, Blackwell v. Moorman and Co., 111 N. C. 151, 16 S. E. 12, 17 L. R. A. 729, 732, 32 Am. St. Rep. 786.\\nThe issue of contributory negligence was also for the jury. The defendant argues that the plaintiff knew that other explosions had thrown fragments of rock near, and beyond, his house; that he had observed the defendant take shelter behind the elm tree, when firing the blasts, and that, if he had used due care, he would have done likewise. But nothing untoward had happened on the day of the accident when the plaintiff had fired the blasts until the, last one took place. The inference might reasonably be drawn that, under these circumstances, the plaintiff was justified in assuming' that the blasts were not as heavy as they had been on the previous days and, consequently, that he was not in a position of danger. See Lassasso v. Jones Bros. Co., 88 Vt. 526, 534, 93 Atl. 266. He had the right to presume that the defendant would warn and save him from needless exposure to injury. Barclay v. Wetmore and Morse Granite Co., 92 Vt. 195, 198, 102 Atl. 493.\\nWhile the plaintiff assumed the ordinary risks of his employment, he did not assume the risks arising from the negligence of the defendant, unless he knew and comprehended them or they were so obvious that he must be taken to have had such knowledge and comprehension. Miner v. Franklin County Tel. Co., 83 Vt. 311, 318, 75 Atl. 653, 26 L. R. A. (N.S.) 1195; Vaillancourt v. Grand Trunk Ry. Co., 82 Vt. 416, 435, 74 Atl. 99; Harris v. Bottum et al., 81 Vt. 346, 353, 70 Atl. 560; Brown v. N. E. Tel. and Tel. Co., 80 Vt. 1, 15, 66 Atl. 801. \\\"The doctrine of assumption of risk involves a sufficiently exact appreciation of the nature and extent of the danger to enable the servant to estimate the possibilities of his surroundings so far as they affect his safety.\\\" Wiggins v. E. Z. Waist Co., 83 Vt. 365, 370, 76 Atl. 36, 38. Furthermore this doctrine which is quite apart from the doctrine of contributory negligence (Gover v. C. V. Ry. Co., 96 Vt. 208, 213, 118 Atl. 874; Duggan v. Heaphy, 85 Vt. 515, 523, 83 Atl. 726) is founded upon the maxim \\\"volenti non fit injuria,\\\" and so it is not enough, that the plaintiff knew and appreciated the danger; it must also appear that his act was a voluntary one within the meaning of the maxim, that is, the result of his intelligent choice. Gover v. C. V. Ry. Co., 96 Vt. 208, 214, 215, 118 Atl. 874; Lavelle's Admr. v. C. V. Ry. Co., 94 Vt. 80, 84, 108 Atl. 918; Dailey v. Swift and Co., 86 Vt. 189, 192, 84 Atl. 603.\\nThe evidence falls short of showing conclusively that the plaintiff knew and comprehended the risk and voluntarily assumed it. It tended to show that he was ignorant of the amount of dynamite used in the blast that caused his injury, and, in the circumstances, the law does not impute knowledge of it. ITe had the right to assume that the defendant was mindful of his safety, and was not bound to inquire the reason for the course taken, or to pass judgment upon the method employed or its sufficiency. Duggan v. Heaphy, 85 Vt. 515, 523, 83 Atl. 726; Miner v. Franklin County Tel. Co., 83 Vt. 311, 320, 75 Atl. 653, 26 L. R. A. (N.S.) 1195; Marshall v. Dalton Paper Mills, 82 Vt. 489, 502, 74 Atl. 108, 24 L. R. A. (N.S.) 128.\\nIt is argued that the fact that, before firing the blast, he took pains to ascertain that his children were .in the house demonstrates that he realized the danger of his position; but this circumstance is also capable of explanation as being due to a natural parental anxiety to be assured that none of the children had wandered to the immediate vicinity of the blast without his knowledge. It would be for the jury to say what construction should be put upon this incident.\\nMoreover, the evidence that the defendant had told the plaintiff, with regard to the charge of dynamite that the latter had placed, that it was all right, and had said that it was not necessary to remove the battery to a greater distance from the blast, might be taken by the jury as a representation which lulled the plaintiff into a sense of security, and therefore refuted the inference that he voluntarily assumed the risk, even if he had known and comprehended it, or ought to have done so. Skinner, Admr. v. C. V. R. R. Co., 73 Vt. 336, 340, 50 Atl. 1099; Dailey v. Swift and Co., 86 Vt. 189, 198, 84 Atl. 603; Blanchard v. Vt. Shade Roller Co., 84 Vt. 442, 446, 79 Atl. 911; and see Harris v. Bottum et al., 81 Vt. 346, 354, 70 Atl. 560. And the evidence to the effect that he fired the blast in compliance with an order from the defendant, at the place where the latter had put the battery, connected and ready for firing, tended to rebut the same inference. Cross v. Passumpsic Fibre Leather Co., 90 Vt. 397, 410, 98 Atl. 1010; Milland v. West-End St. Ry. Co., 173 Mass. 512, 514 53 N. E. 900.\\nThere was no error in the denial of the motion for a verdict.\\nJudgment reversed and cause remanded.\"}"

vt/4593133.json

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+"{\"id\": \"4593133\", \"name\": \"Homer B. Coburn v. Warren B. Drown\", \"name_abbreviation\": \"Coburn v. Drown\", \"decision_date\": \"1945-01-02\", \"docket_number\": \"\", \"first_page\": \"158\", \"last_page\": \"162\", \"citations\": \"114 Vt. 158\", \"volume\": \"114\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-11T02:47:42.826386+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Moulton, C. J., Sherburne, Buttles, Sturtevant and Jeffords, JJ.\", \"parties\": \"Homer B. Coburn v. Warren B. Drown.\", \"head_matter\": \"Homer B. Coburn v. Warren B. Drown.\\nNovember Term, 1944.\\nPresent: Moulton, C. J., Sherburne, Buttles, Sturtevant and Jeffords, JJ.\\nOpinion filed January 2, 1945.\\nHubert S. Pierce for the plaintiff.\\nRaymond L. Miles for the defendant.\", \"word_count\": \"1798\", \"char_count\": \"9783\", \"text\": \"Jeffords, J.\\nThis is an action of tort for conversion. The material facts relating to the main question are not in dispute.\\nIn August, 1943, the plaintiff purchased 35 cattle from Leon Regan and gave the latter a check for $1500.00 as the purchase price. The plaintiff was not in a position to take the cattle at the time of the purchase so Regan agreed to keep them for a few days. During the time that Regan kept the cattle for the plaintiff no steps were taken to indicate any change in their ownership. The day before the plaintiff was to come to the Regan farm to take the cattle the defendant purchased the same cattle from Regan and gave a check for $1550.00 for them. Within a few minutes of the time he received the check Regan told the defendant that Coburn had bought the cattle. After the receipt of this information the defendant took the animals from the Regan farm. The fair value of the cattle at the time they were so taken exceeded the amount for which they were sold to the plaintiff.\\nThe plaintiff is here on exceptions taken to the ruling of the court excluding certain evidence and to the direction of a verdict for the defendant. The offered evidence tended to show that the defendant was informed by telephone of the previous sale of the cattle prior to the time they were taken from the Regan farm by the defendant. The evidence was excluded on the ground that it was immaterial as the second sale had been consummated before the telephone conversation took place. The ground of the motion for a directed verdict was that there was no evidence in the case that the defendant had any notice of the transaction between Co-burn and Regan previous to the time the defendant bought the cows and paid for them.\\nThe plaintiff in order to maintain this action was required to prove that at the time the defendant took the cattle he (the plaintiff) had the right to the immediate possession of the animals. Nemie v. Todd, 89 Vt 502, 506, 96 A 14. Whether the plaintiff had such a right depends on whether the transaction between Regan and the defendant conveyed a valid title to the cattle to the latter.\\nUnder our law the retention of possession of the cattle by Regan, the vendor, made the sale to Coburn fraudulent in law, or per se, as to creditors of Regan or as to bona fide purchasers without notice. This rule of law is so well settled as to require no citation of authorities. For illustrative cases see Foss v. Towne, 98 Vt 321, 324, 127 A 291, and Daniels v. Nelson, 41 Vt 161, 98 Am Dec 577.\\nIt is apparent that the trial court and counsel for the defendant took the position that the giving of the check for the cattle before notice of the prior sale made Drown a bona fide purchaser of the animals so that it was immaterial that he received such notice before the cattle had been delivered to him.\\nThe plaintiff's position was, and is, that Drown is not entitled to the rights of a bona fide purchaser as he had notice of the prior sale before he had received possession of the cattle. The plaintiff in support of his position relies on P. L. sec. 7950 (sec. 25 of the Uniform Sales Act) which reads as follows:\\n\\\"Where a person having sold goods continues in possession of the goods, or of negotiable documents pf title to the goods, the delivery or transfer by the person, or by an agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, to any person receiving and paying value for the same in good faith, and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorized by the owner to make the same.\\\"\\nOur search of the cases reveals none which has directly construed' this section of the Sales Act on this point. This may be due to the fact that the language of the section is so plain and unambiguous in meaning as to leave no room for construction. Hooper v. Kennedy, 100 Vt 376, 379, 138 A 778. Moreover, as this statute is not susceptible of two meanings there is no occasion to examine it in the light of common law principles. Brammall v. LaRose, 105 Vt 345, 350, 351, 165 A 916. It follows that P. L. 7950 is to be given the meaning that its words clearly import. Thus in order for one to be a bona fide purchaser entitled to the protection of the statute the subsequent purchaser must both receive possession of and pay value for the goods before notice of the prior sale.\\nP. L. 7950 governs the case and if it changed in any way our common law rule in respect to the essentials necessary to constitute this defendant a bona fide purchaser, a matter which we do not in any way decide, the change was brought about by the clear and unambiguous language required to make changes by statute in the common law. State v. Sylvester, 112 Vt 202, 207, 22 A2d 505, and cases there cited.\\nThe defendant in his brief claims that the case is governed by P. L. 7951 (sec. 26 of the Sales Act). This section pertains to the rights of creditors of a vendor who has retained possession of the goods which he has sold. As far as it appears from the record Drown was not a creditor of Reg\\u00e1n. The cattle were taken by Drown as a purchaser and not as a creditor. Consequently P. L. 7951 does not here apply.\\n. The trial court in its discussion with counsel of P. L. 7950 indicated it believed that P. L. 8474 which relates to fraudulent transfers made to avoid a right, debt or duty had some bearing in the case. A reading of this section and the cases construing the same discloses that it does not apply to the facts in the present case. See Fuller v. Sears, 5 Vt 527.\\nIt is not questioned that the parties intended in both instances that the title to the cattle should pass to the respective vendees when the contracts were made. Thus as between Regan and the plaintiff title to the animals vested in the latter when their contract was entered into. P. L. 7944, Rule 1. (Sales Act sec. 19a). Inasmuch as the defendant was not entitled to protection as a bona fide purchaser of the cattle under P. L. 7950 it follows that he did not acquire title to the property from Reg\\u00e1n, as the title which the latter \\u2022 purported to give was not in him at that time but in the plaintiff. As far as the facts show, title gave the plaintiff the right to immediate possession of the cattle. Thus the court erred in directing a verdict for the defendant on the ground which we have considered. For the same reasons, there was error in excluding the offered evidence.\\nThe defendant in oral argument and in his brief advances two grounds in support of the direction of the verdict which'were not stated below. He says we may properly consider them under our rule that we may sustain the ruling on any legal ground though it was based below on other grounds. The plaintiff urges several claimed reasons why that rule cannot properly be applied in the present case. There is no meed to discuss these claims of the plaintiff as neither of the grounds now urged by the defendant would have warranted a direction of a verdict in his favor.\\nThe first of these grounds is, in effect, that the evidence discloses that the plaintiff had given Regan the right to sell the cattle in question. The evidence relied upon by the defendant is to be found in Regan's testimony. But this witness was found by the court to be hostile to the plaintiff and there was other evidence in the case which would reasonably have warranted the jury in finding that no such right had been given. This question was for the jury to determine.\\nThe second of these grounds is that there was no evidence of a demand and refusal and no evidence of an inability on the part of the defendant to have complied with a demand.\\nThere is no necessity of proof of a demand and refusal for the purpose of establishing a conversion when the conversion is otherwise established. Loverin v. Wedge, 102 Vt 138, 143, 146 A 248; Lathrop v. Lawson, 96 Vt 513, 516, 121 A 438; Crampton v. Valido Marble Company, 60 Vt 291, 302, 15 A 153, 1 LRA 120.\\nUnder our rule of law, where one purchases personal property of a person in possession of it, but who is not the true owner and has no right to sell it, and the purchaser takes possession, claiming title to it as owner, and puts it to use, there is an actual conversion which makes him liable in trover to the owner, without any demand or notice, though he purchased in good faith of one whom he supposed to be the owner and entitled to sell it. Crampton v. Valido Marble Company, supra; Riford v. Montgomery, 7 Vt 411, 418. The case at bar is stronger because Regan not only had no right to sell the cattle to Drown but the latter was chargeable with notice of that fact before he took possession of the same. Under these circumstances, the exercising of dominion over the cattle by the defendant as his own property as evidenced by his act of taking them from the Regan farm and keeping and presumably using them to the extent, at least, of milking the cows constituted a conversion and no demand and refusal was necessary in order to perfect a right of action. Crampton v. Valido Marble Company, supra; Bucklin v. Beals, 38 Vt 653, 660. In reaching this conclusion we have assumed that if the case had been submitted to the jury they would have found that Coburn had given Regan no authority to sell the cattle. Of course if they had found on legal evidence that such authority had been given, no question of necessity of demand and refusal would thereafter be in the case.\\nJudgment reversed and cause remanded.\"}"

vt/4625151.json

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+"{\"id\": \"4625151\", \"name\": \"John D. Latchis Et Als v. State Highway Board\", \"name_abbreviation\": \"Latchis v. State Highway Board\", \"decision_date\": \"1957-07-08\", \"docket_number\": \"\", \"first_page\": \"120\", \"last_page\": \"134\", \"citations\": \"120 Vt. 120\", \"volume\": \"120\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T22:23:23.810083+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John D. Latchis Et Als v. State Highway Board\", \"head_matter\": \"John D. Latchis Et Als v. State Highway Board\\n[134 A2d 191]\\nMay Term, 1957.\\nOpinion Filed July 8, 1957.\\nFitts & Olson for the appellants.\\nJohn S. Burgess and John D. Paterson for the appellee.\", \"word_count\": \"4789\", \"char_count\": \"28292\", \"text\": \"Hulhurd, J.\\nThe State Highway Board is seeking, under V. S. 47, \\u00a74971 etseq., the condemnation of the appellant's land. The matter comes before this Court upon the appellant-landowner's exceptions to the county court's order accepting the report of the commissioners as amended. The appellant asserts that the order for the taking of his lands is unsupported by the evidence, both as to the necessity for the taking and as to compensation awarded therefor. The report shows that the proposed taking is for the purpose of a limited-access, divided, four-lane highway or throughway (with connected interchanges, etc.) which will ultimately run from Hartford, Connecticut to White River Junction, Vermont, from which point it will proceed in two forks, to the Canadian border, one by way of Burlington, and the other by way of northeastern Vermont.\\nA survey of the proposed highway shows it reaching the-land of the appellant at Brattleboro, Vermont. The proposed taking consists of approximately 24.62 acres, cutting diagonally across the northeast portion of the appellant's premises which consist, in all, of approximately 135 acres of land in Brattleboro lying westerly of the present U. S. Route 5 (called Canal Street at that point) and southerly of Fairview Avenue. Of this total acreage only about 8 acres is flat land, so-called; the remainder is hilly and wooded terrain which has been partially cleared for skiing purposes, although not used in that connection for the past two or three years. No portion, of the appellant's flat land is included in the proposed taking.\\nWe turn first to the matter of necessity; for the statute-provides that condemnation of land for highway purposes-may be had only when \\\"the interest of the State shall so require and there is a \\\"necessity \\\" for taking \\\"for such purposes.\\\" (V. S. 47, \\u00a74971-5). Before dealing with any specific exception of the appellant's relating to this subject, it is essential that we have a proper understanding of the terms employed by the statute. The appellant has seized upon the-words \\\"imperative necessity\\\" found in the case of Lorenz v. Campbell, 110 Vt 200, 202, 3 A2d 548, which quotes them from Farnsworth v. Goodhue, 48 Vt 209, 211, wherein the expression first appears. Farnsworth v. Goodhue, supra, was-not a condemnation case involving a highway but was an action of trespass against a defendant who was constructing an aqueduct and in doing so went onto the plaintiff's land, not for the purpose of laying the aqueduct, but to escape the miry condition of the road adjacent to the construction. This Court properly held that the aqueduct company, although enjoying by statute rights of eminent domain, could not justify its entry on the land of the plaintiff on this ground, especially as it had not proceeded to go through condemnation proceedings and duly ascertained the damage before using the plaintiff's land. The court in its opinion said, in the nature of a dictum, at page 211: \\\"No doubt there might have been land that the aqueduct would not itself actually touch, and still have been so situated that it would have been necessary to enter upon it, and if so probably the statute would cover such a case of actual necessity. But such statutes are strongly \\u2022derogatory to common right, and no case can be brought within them except such as come duly within their terms with imperative necessity.\\\"\\nIt is against this background that we must view the words \\\"imperative necessity\\\". When this is done, the expression, although appropriate enough to the case in which it was used, is seen as one not to be adopted as a general test, nor has it ever been applied in condemnations for highways. To do so would be to adopt a strict and rigid necessity never intended by the statute. As Mr. Justice Holmes reminds us, \\\"A word is not a crystal, transparent and unchanged: it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.\\\" Towne v. Eisner, 245 US 418, 425, 38 S Ct 158, 159, 62 L Ed 372. The necessity specified by the statute for the condemnation of land for highways does not mean an imperative or indispensable or absolute necessity but only that the taking provided for be reasonably necessary for the accomplishment of the end in view under the particular circumstances. Cases to this effect include: Wilton v. St. Johns County, 98 Fla 26, 123 So 527, 65 ALR 488; Solether v. Ohio Turnpike Comm., 99 Ohio App 228, 133 NE2d 148, 151; Town of West Hartford v. Talcott, 138 Conn 82, 91, 82 A2d 351; Kompash v. Powers, 75 Mont 493, 244 P 298, 303; State ex rel. Department of Highways v. Pinson, 66 Nev 227, 207 P2d 1105.\\nNow the end in view has been determined by the legislature itself by No. 270 of the Acts of 1955. Its very first section reads: \\\"The General Assembly of the State of Vermont hereby finds, determines and declares that this act is necessary for the immediate preservation of the public peace, health, and safety and for the promotion of the general welfare.\\\" This is a declaration of policy under the very act which was enacted that highways like the one in question might be constructed. By its section 6 the state highway board is author ized to acquire land by condemnation for the purposes of the act under existing statutes or any that may be hereafter enacted. We are not confronted, therefore, with the situation which existed in Lorenz v. Campbell, 110 Vt 200, 3 A2d 548, supra, where the legislature's purpose was held not to be clear enough to support the taking for the project in question.\\nAlthough a declaration by the legislature that a use is public might not make it so (see Tyler v. Beecher, 44 Vt 648, 651) primarily, the right to declare what shall be deemed a public use is vested in the legislature and if the use is one that the legislature might reasonably have considered to be public, the determination by the legislature will be upheld in the courts. Public highways were the earliest objects of the exercise of eminent domain, and it has never been doubted that land taken for a public highway, necessary and convenient to the public, is taken for a public use. 18 Am Jur, p. 684; Williams v. School District, 33 Vt 271, 276. In the present case the end in view is clear and the authority has been delegated to the State Highway Board to take such land as may be necessary to reach that end. In granting this power, however, the legislature has set up certain requirements to be met and a procedure for appeal from the decision of the State Highway Board. As this matter comes to us, the over-all necessity has been recognized and established by legislative enactment and there remains only the question of whether the taking of the particular land in question is reasonably necessary for the accomplishment of the ends envisioned by the legislature.\\nThe argument that \\\"the state doesn't need to' take my land\\\" merely because some one else's land might be taken has no validity. After all, if there is to be a road, it of necessity has to go somewhere, some one's property has to be taken. If imperative or absolutely necessity were the test, there would be no practical way in which the crooked road could be made straight. It could always be said \\\"The state already has a road.\\\" To justify a taking, the interests, of the State must require it, and it must be so shown, but only to the extent that it is reasonably necessary to accom plish the end in view after weighing all the circumstances which bear on any given situation. In determining whether a reasonable necessity exists with respect to highways, public safety has become the critical element. Where the volume and nature of traffic is such that public safety requires under the circumstances that the road be constructed, or reconstructed, at a given location, a reasonable necessity exists, and a taking of land is justified, if reasonable in the light of all the concurring circumstances. Under our statute a broad discretion has been vested in the state highway board in determining what land it deems necessary for the particular location and route to be followed, and, as a safeguard,, the appeal to county court with a provision for a hearing before an independent board of commissioners is provided. A determination made agreeably to the statute will not be interfered with by the courts if it is made in good faith and is not capricious or wantonly injurious. See 29 CJS p. 886; Williams v. School District, 33 Vt 271, 279. The function of this Court on appeal is not to weigh the evidence nor to review its sufficiency further than to determine whether the findings below are supported by any competent or substantial evidence. Petition of Citizens Utilities Co., 117 Vt 285, 287, 91 A2d 687; 30 CJS, Eminent Domain, \\u00a7364.\\nWe now turn to the appellant's specific exceptions, dealing first with those which relate to necessity. Appellant moved to strike the findings of the commissioners numbered 10 through 15, in their report. These findings related to the conditions existing with respect to a two-mile section of the present U. S. Route 5 \\u2014 and its need for replacement \\u2014 as it approaches the appellant's premises from the south. They bring out its inadequacy for traffic capacity, stopping-sight distances, roadbed width, and passing-sight distances. Due to all these factors and its overly-steep grades this particular section is found to be third from the lowest in rating of the 179 highway sections in the State of Vermont under the generally accepted minimum highway standards which pertain to structural condition, safety and service. The appellant conceded on oral argument that these findings are well supported by the evidence and that a good case was made out for taking land for the proposed new highway for the two miles just southerly of the appellant's premises, but this they argue has \\\"no materiality with respect to showing of necessity for the proposed taking of land of the appellant\\\" and so, they say, the motion to strike should have been granted. There was no error in refusing to strike the findings in question. They showed how and why the proposed highway leads up to the appellant's premises. Having of necessity arrived at that point, in order to fulfill its function as a throughway, the road had to proceed northward over some route, and as we shall see later, the commission found the \\\"proposed route through appellant's land is the most satisfactory from the standpoint of safety, grade, acquisition and engineering costs, engineering and other sound bases.\\\"\\nThe appellant excepted to finding No. 17 in which the commissioners found that the proposed interstate highway is necessary for national defense purposes. There was testimony that the proposed interstate highway was related to national defense. We think that the finding of the commissioners was a proper inference from the evidence before them. Even if it were not, the legislative pronouncement as to the necessity of the proposed highway made the finding unessential and so not ground for reversal. Shaw v. Shaw, 99 Vt 356, 358, 133 A 248.\\nThe appellant excepted to commissioners' finding No. 22 which reads as follows:\\n\\\"Appellee's engineers have properly discarded as impracticable from safety, engineering, cost of acquisition and other standpoints after due consideration thereof the two alternative throughway routes alluded to by Appellant's counsel in cross-examination of Appellee's witnesses over the top of Appellant's ridge southerly of the proposed taking and easterly of the proposed taking and thence along the Connecticut River and around the Town of Brattleboro.\\\" The ground of the appellant's exception is, that \\\"the above finding contains a characterization: 'properly' which it is not within the power of the commissioners to determine, nor have they shown themselves competent to so determine.\\\" The ground briefed, however, is not that of the exception as taken, but goes only to the competency of the appellee's engineer. A claim not made below, but made here for the first time is not for consideration. Vermont Salvage Corp. v. Northern Oil Co., 118 Vt 337, 339, 109 A2d 267. Moreover, where a witness testifies, without objection being made as to his competency, this matter cannot be raised later on appeal. Hathaway v. National Life Ins. Co., 48 Vt 335, 350; Parker v. McKannon Bros. & Co., 76 Vt 96, 103, 56 A 536.\\nFinding No. 23, to which the appellant excepted, reads as follows:\\n\\\"The Appellee's engineers have considered various routes for the proposed interstate limited access throughway and have properly found that the present proposed route through Appellant's land is the most satisfactory from the standpoint of safety, grade, acquisition and engineering costs, engineering and other sound bases\\\".\\nTo this finding the appellant excepted on the same ground as to finding No. 22 and \\\"on the further ground of employment of unidentified criteria by reference to 'other sound bases'.\\\" What we have said in connection with the preceding exception disposes of the first grounds of this exception. As to the added ground, no error appears in the use of the words \\\"and other sound bases\\\" where the major and sufficient reasons have first been stated. Doubtless the \\\"other sound bases\\\" appear in the following finding (No. 24) which we quote shortly. In any event, since the added reasons are stated to be \\\"other sound bases\\\", we will so presume on appeal in the absence of a showing to the contrary. Martin v. Town of Wells, 43 Vt 428, 433. Even if we should assume that the added words were improper, which we do not, they are not of such import as should be allowed to avoid the proceedings. Compare Eddy v. Sprague, 10 Vt 216, 219.\\nThe foregoing finding is followed by finding No. 24 which reads as follows:\\n\\\"The proposed interstate throughway leading through Appellant's property is highly necessary and convenient to the public and to individuals in that among other thingslit gives an interchange to Brattleboro at the southerly end of town and in that owing to topographical features, the location of the H. Margolin Company plant and the Austine School and the residental area of Brattleboro it is the most feasible route through a small valley with a minimum destruction of property.\\\"\\nThis finding is excepted to because \\\"it contains indefinite characterizations, 'highly' and 'feasible' which are not equivalent to the required clear, concise finding as to necessity.\\\" The case of State v. Pinson, 66 Nev 227, 207 P2d 1105, is much in point. We quote from the opinion in that case at page 230: \\\"Appellants contend that the condemnation of the route through their property grows out of 'convenience', 'feasibility', 'economy of construction and maintenance' and not out of 'necessity'. It is true that we find these and other similar expressions constantly in the mouths of the state and federal engineers who testified, and it is likewise true that none of these witnesses used the terms 'necessary' or 'necessity' in their testimony. We do find, however, ample testimony that the alternative route suggested by the appellant (the only alternate brought into the case) failed of approval by the state and federal authorities on account of its lack of 'highway safety'. The condemned route 'offers greater safety to the traveling public'. The proposed alternate route had 'excessive grades' * 'sharper curvatures' * permitted 'poorer vision' * and would have been 'extra hazardous' *, except at greatly restricted speeds *. The foregoing examples of the testimony of the state's expert witnesses are sufficient to indicate that the trial court was justified in its finding that the taking was necessary.\\\"\\nIn the case at hand, the commissioners have specifically found not only many of the matters mentioned in the quotation but have also found that the proposed taking is \\\"highly necessary.\\\" Certainly the appellant cannot complain on account of the use of the word \\\"highly\\\" in connection with the word \\\"necessary\\\". The greater includes the less. The appellant's exception to this finding is without merit.\\nIn connection with the testimony of Herbert Farrington, highway engineer and witness for the state, the appel lant moved that the question of necessity be stricken from the case. If we assume the appellant's claim, namely, that Farrington's testimony was to the effect that there was no necessity with respect to that portion of the highway which would run through the appellant's land, there still would be no error in denying the appellant's motion to strike the question of necessity from the case. There was ample evidence from other sources, notably, engineer Marsett, tending to show the required necessity. Aparty is not concluded by the testimony of his own witness, where there is other testimony in the case which supplies the required evidence. Patton v. Ballam & Knights, 115 Vt 308, 312, 58 A2d 817. We might add, however, that a full consideration of Farrington's testimony does not restrict its effect as to necessity entirely to portions of the proposed highway other than on the appellant's property as claimed by the appellant.\\nWhat we have said is sufficient to indicate that the commissioners' conclusion No. 2 that \\\"the necessity and convenience of individuals and the State of Vermont requires the proposed taking of appellant's land and rights therein,\\\" was supported by legal and proper findings in conformity with the statute and the appellant's exceptions thereto are without merit.\\nWe now give our attention to those exceptions briefed by the appellant bearing on the compensation allowed him for the land to be taken in this proceeding. In addition to the appellant, himself, three witnesses testified on this subject. Much of the testimony is based on a taking of 27 acres. In the course of the proceedings the acreage to be taken was reduced by the state, it being considered that the state could forego its requirement to that extent and thereby preserve intact a ski-jump for young skiers. There was a wide variation in the opinion of the various witnesses as to the value of the land in question and the loss which would result from the proposed taking. Witness Tennien testified that the land to be taken was worth $400. an acre, and that by reason of the taking, 14 acres west of the land to be taken and 7 acres north of the land to be taken would be reduced in value by reason of loss of accessibility and traffic noise so that its potential value for residential purposes would be destroyed. This loss would amount to $6,985 on the 14-acre and 7-acre pieces. As a result, on a 27-acre basis, Tennien put appellant's total loss at $17,695.\\nWitness Ratti's figures were slightly higher and amounted to $22,390. figured on a 27-acre basis at $500 per acre. The appellant himself was higher yet with a total figure on a 27-acre basis of $34,000.\\nAs opposed to all this, the State introduced its witness, Bittner. His testimony was to the effect that the value of the land proposed to be taken was $3,600. He further testified that although some of the appellant's remaining land would be reduced in value, the proposed taking would be beneficial in the overall effect. With this evidence before them, the commissioners fixed the compensation to which the appellant would be entitled as follows: $7,500. for the proposed taking of 24.62 acres; $2,000. by reason of disturbance of access to the remaining land; $500. for diminution in value of the appellant's remaining land, the commissioners finding that the land westerly of the proposed taking would be depreciated by that amount by the proposed taking. The total award, therefore, for all compensation amounted to $10,000.\\nThe appellant's first exception is to finding No. 38 which fixes the allowance at $500. for depreciation as just stated. The ground of the exception is that the finding is unsupported by the evidence. This is to ignore the testimony of Bittner who stated the overall effect resulted in no loss to the appellant but rather was beneficial. It is apparent that the commissioners opposed this testimony with that of the other witnesses, weighing all the reasons advanced by each, accepting some, rejecting others, and arriving at an allowance of $500. based on all the evidence. The appellant's theory seems to be that they are entitled to all or nothing on this score. It was for the commissioners to say on all the evidence, aided as it was by a view of the premises, what the appellant was fairly entitled to receive in this regard. It was a matter which called for the commissioners' good sense and sound judgment, and it has not been made to appear that they failed to reach a just and fair result. Compare G. & H. Holding Co. v. Dutton, 118 Vt 406, 412, 110 A2d 724.\\nThe appellant excepted to a finding of the commissioners (No. 9) which in substance stated that a portion of the appellant's land was suitable for real estate development purposes, but that none had been offered for sale nor had it been developed in any way. It is obvious that the extent of the development, if any, was a proper factor to be considered in arriving at what would be the appellant's loss and damages. It was not immaterial on the question of damages as claimed by the appellant.\\nThe appellant moved that the testimony of State's witness, Bittner, be stricken for that the witness himself stated that if he owned the land sought to be taken, upon which he had placed a value of $3,600., he would hesitate to sell the land for such sum. As was said in LeBlanc v. Deslandes, 117 Vt 248, 252, 90 A2d 802, \\\"It is sufficient to say here, that the motion could not have been granted if any part of the testimony was admissible.\\\" Bittner's testimony included much more than a damage figure. The motion, if well founded, was too broad.\\nDuring the course of witness Tennien's testimony, he referred to the Appraiser's Journal. When witness Bittner took the stand, he did not agree with Tennien's testimony as to the effect of a throughway on the sale of adjacent property. Bittner in turn referred to a specific article in the Appraiser's Journal which he claimed tended to support his opinion and not Tennien's. The appellant moved that the testimony of Bittner be stricken \\\"for the reason that his testimony was tainted by the introduction of inadmissible Appraiser's Journal to which exception was taken.\\\" This motion was denied and exception allowed. The transcript discloses that Tennien said he arrived at his opinion from the study of the Journal. Bittner's testimony pertaining thereto was offered for rebuttal purposes only. It had a tendency to prove that the authority for Tennien's testimony was not to the effect that he claimed. It was proper for this purpose. Moreover, as in the preceding exception, the appellant's motion was too broad and its denial was proper for that reason alone.\\nThe appellant excepted to the commissioners' finding No. 30 as unsupported by the evidence. The finding was that the proposed taking is in close proximity to industrial and commercial enterprises and that by reason of that fact is worth less than the $400 or $500 per acre testified to by the appellant's witness. Since it appears that the H. Margolin & Co. plant is located in the immediate area, the transcript supports the finding, with its resultant effect on the value of lots for residential purposes.\\nIn the hearing in county court on the commissioners' report, appellant's exceptions to findings 35, 36 and 37 were sustained. These findings gave some of the reasons why in finding No. 38 the figure of $500. was fixed upon to cover depreciation on the land remaining to the appellant. The appellant's exception is actually directed at finding No. 38 which, as we have already stated, was on the ground that it is not supported by the evidence. As briefed, however, the appellant makes the claim at this point that finding No. 38 cannot stand without findings 35, 36 and 37, which were struck on the appellant's motion in county court. The scope of the appellant's exception does not reach the ground he is now seeking to advance. The exception is not sustained. LaPlante v. Eastman, 118 Vt 220, 225, 105 A2d 265.\\nAppellant's exception to conclusion 4 is made to hinge on our disposition of his exception to finding No. 38. No further consideration, therefore, need be given to his exception to conclusion 4.\\nThe appellant excepted to finding No. 34 which allowed him the sum of $2,000 by reason of the disturbance of his access to the remainder of his land. The commissioners found that new access roads substantially equivalent to the existing roads could be built for that amount. The exception is that the finding is \\\"wholly unsupported by and inconsistent with all the evidence.\\\" The evidence before the commissioners from appellant's witness was that roads which would be slightly better than the existing roads could be constructed for $5,467.50. A witness for the State testified that the slightly-better-road could be constructed for $2,844.40. The appellant did not put before the commissioners any figure as to what substantially equivalent roads would cost to construct, and this, of course, is all that the appellant was entitled to. The commissioners were forced to adopt the figures before them by the exercise of judgment aided by a view of the premises. We cannot say that the amount arrived at was not just and reasonable in the light of the evidence. The exception to the finding is not sustained.\\nFinding 31 merely states that the fair market value of the 24.62 acres proposed to be taken is $7,500. This finding was excepted to as being entirely unsupported by the evidence and \\\"that it is a conjecture or estimate by the commissioners outside of and beyond their authority and competency and without any legal basis to support the same.\\\" What we have said earlier is sufficient to make clear that the finding of a figure of $7,500 was entirely consistent with the evidence. It was within a range placed before the commissioners by the various opinions of the witnesses, from which it was the commissioners' duty to arrive at a determination in the light of all the evidence in the case, aided by a view of the premises. Commissioners have been held to have a great degree of freedom in handling opinion evidence bearing on the value of real estate. Shoemaker v. U. S., 147 US 282, 306, 13 S Ct 361, 37 L Ed 170.\\nFinding 32 was to the effect that adequate access would be available to the appellant's land lying westerly of the proposed taking by reaching it by a way as therein stated. This finding was excepted to as unsupported by the evidence. As briefed, the whole argument of the appellant is based on the fact that at the hearing in county court on the commissioners' report, counsel for the State stated that it would have \\\"no objection to the court striking the word 'adequate' from the finding so it would just say 'access will be had.'\\\" Whether the word \\\"adequate\\\" was struck by the court is not clear. In any event, \\\"access\\\", standing by itself must be understood as meaning \\\"reasonable access\\\". As such, in the circum stances, it is indistinguishable from \\\"adequate access\\\". To say that there is error here would be to predicate it on a quibble of words.\\nThe appellant moved to recommit the report for the purpose of putting in newly discovered evidence relative to the qualifications of his expert witnesses. He excepted to the county court's refusal to recommit for this purpose. Such a motion was addressed to the discretion of the county court and its action is not reviewable in the absence of abuse of discretion. May v. State, 77 Vt 330, 333, 60 A 1. No abuse of discretion has been made to appear. The exception is not sustained.\\nWhat we have said disposes of all of the appellant's exceptions in need of separate attention. The findings of the commissioners were proper and sufficient and the order of the county cocut based thereon accepting the same is without error and judgment is affirmed. Cause remanded.\"}"