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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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+"{\"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\"}"
\ No newline at end of file
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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+"{\"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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\\\"\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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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.\"}"
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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\"}"
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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.\"}"
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diff --git a/vt/4425438.json b/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.\"}"
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diff --git a/vt/4426633.json b/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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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diff --git a/vt/4458555.json b/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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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+"{\"id\": \"4631011\", \"name\": \"State of Vermont v. Vernon Stone\", \"name_abbreviation\": \"State v. Stone\", \"decision_date\": \"1962-06-22\", \"docket_number\": \"\", \"first_page\": \"95\", \"last_page\": \"96\", \"citations\": \"123 Vt. 95\", \"volume\": \"123\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T19:29:25.562871+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Hulburd, C. J., Holden, Shangraw, Barney and Smith, JJ.\", \"parties\": \"State of Vermont v. Vernon Stone\", \"head_matter\": \"State of Vermont v. Vernon Stone\\n[181 A.2d 840]\\nMay Term, 1962\\nPresent: Hulburd, C. J., Holden, Shangraw, Barney and Smith, JJ.\\nOpinion Filed June 22, 1962\\nPeter F. Langrock, State\\u2019s Attorney, for the State.\\nJoseph S. Wool for the respondent.\", \"word_count\": \"424\", \"char_count\": \"2380\", \"text\": \"Smith, J.\\nThe respondent was convicted of operating a motor vehicle while under the influence of intoxicating liquor, on September 15, 1961, in the Addison Municipal Court. Trial by jury resulted in a verdict and judgment of guilty. His only exception briefed in this Court is upon a purported exception to the general charge of the lower court which respondent alleges was taken upon the completion of the instructions delivered to the jury by the trial court.\\nThe claimed exception does not appear in the record before us. Respondent alleges this is due to the faulty reporting of the case below, and by reason of the error of the lower court reporter. Admittedly the respondent made no effort to correct the claimed omission in the record.\\nOur rule has long been that the excepting party must here produce a record that makes it appear that harmful error was committed below. The risk of failure is his. We are bound by the plain terms of the record, and will not allow it to be impeached in this Court. Right or wrong, it is the sole basis for appellate action. With us the record imports absolute verity, and anything not shown by it is out of the case in this Court. Langevin v. Gilman, 121 Vt. 440, 444, 159 A.2d 340; Higgins, Admr. v. Metzger, 101 Vt. 285, 296, 297, 143 Atl. 394; Halloran v. New England Tel. and Tel. Co., 95 Vt. 273, 275, 115 Atl. 143, 18 A.L.R. 554.\\nIt may be added that even if the record disclosed the exception which the respondent has here briefed it would avail him nothing. A general exception to the charge of a trial court, given after its delivery, and without a specific indication to the court of the particulars in which such charge is claimed to be in error, gives the trial court no opportunity to amplify or correct the instructions that have been given. A question cannot be brought to this Court upon which it is made to appear that the trial court had no fair opportunity to pass judgment. Langevin v. Gilman, 121 Vt. 440, 443, 159 A.2d 340; Johnson v. Hardware Mutual Casualty Co., 109 Vt. 481, 498, 1 A.2d 817.\\nThe claimed exception is overruled. Judgment affirmed. Let execution be done.\"}"
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+"{\"id\": \"4665413\", \"name\": \"In re Daniel V. Bryant\", \"name_abbreviation\": \"In re Bryant\", \"decision_date\": \"1971-04-06\", \"docket_number\": \"No. 133-70\", \"first_page\": \"302\", \"last_page\": \"308\", \"citations\": \"129 Vt. 302\", \"volume\": \"129\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T22:58:09.851970+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Holden, C.J., Shangraw, Barney, Smith and Keyser, JJ.\", \"parties\": \"In re Daniel V. Bryant\", \"head_matter\": \"In re Daniel V. Bryant\\n[276 A.2d 628]\\nNo. 133-70\\nPresent: Holden, C.J., Shangraw, Barney, Smith and Keyser, JJ.\\nOpinion Filed April 6, 1971\\nKeith E. King, Bennington, for Plaintiff.\\nFrank G. Mahady, State\\u2019s Attorney, and Paul F. Hudson, Deputy State\\u2019s Attorney, for the State.\", \"word_count\": \"2055\", \"char_count\": \"11766\", \"text\": \"Smith, J.\\nThe plaintiff seeks release from the State Prison in Windsor by means of a writ of habeas corpus, brought in the Windsor County Court. The Windsor County Court, having made findings of fact, dismissed the petition and the plaintiff has duly taken his appeal here. The plaintiff is now detained in the State Prison by virtue of an executive warrant, signed by the Governor of Vermont, directing the rendition of the plaintiff to the State of New York where he is sought as a fugitive from justice.\\nAn understanding of the issues presented here requires us to narrate the factual background of the case as presented in those parts of the petition of the plaintiff which are admitted to be correct in the answer of the defendant.\\nOn May 22,1970, the plaintiff was arrested by warrant from the State's Attorney of Windsor County as a fugitive from justice from the State of New York. On the same date, all other charges then pending against the plaintiff in the State of Vermont were nolle prossed by the State of Vermont. On the same May 22nd, the plaintiff appeared before the Windsor District Court, refused to waive the 24-hour period for entering a plea, and also refused to waive extradition when so requested by an officer of the State of New York. He was not represented by counsel at this time, although the record shows that he was offered counsel by the court, and refused.\\nOn May 24, 1970, the plaintiff appeared before the Windsor District Court and, acting pro se, entered a \\\"plea in bar\\\" and stood mute. The court set bail at $5,000.00 and took the plea under advisement. The plaintiff was unable to furnish bail.\\nOn July 16, 1970, the plaintiff returned to court and further argued on his \\\"plea in bar\\\". The court denied his plea and set August 6, 1970 as a date of hearing after entering a plea of not guilty in behalf of the plaintiff. On July 21, 1970, Keith E. King, Esq., was assigned as counsel for the plaintiff.\\nOn August 5, 1970, the charge of being a fugitive from justice, pending against the plaintiff, was nolle prossed, and he was served with the executive warrant. A hearing was held on that date in which the plaintiff objected to the summary nolle prosse of the fugitive from justice charge against him, and also argued a motion to quash the executive warrant. The lower court took the motion under advisement and gave the plaintiff until September 22,1970 to file a writ of habeas corpus.\\nA hearing on the petition for habeas corpus, filed by the plaintiff and the motion of the State to dismiss the same, was held by the Windsor County Court on September 21,1970. The findings of fact of the Windsor County Court were that the plaintiff, at the time of the hearing on the petition for habeas corpus, was confined in State Prison by virtue of the executive warrant dated July 31, 1970. The court also found that the plaintiff was identified as the person named in the warrant by a police officer from New York State, as well as that the plaintiff was under indictment in the State of New York for burglary in the third degree, as well as petit larceny. The court also found that the plaintiff did not introduce any evidence in support of his claim that he was presently imprisoned, detained and restrained of his liberty at the Vermont State Prison and \\\"That the imprisonment, detention and restraint of the petitioner as aforesaid is unlawful and without right and contrary to the legal and constitutional rights of the petitioner and in violation of the laws of the State of Vermont and of the United States . . .\\\", as plaintiff had averred in his petition. Pound also, was that the Warden of the Vermont State Prison, in whose custody the plaintiff alleged he was restrained and detained, had not been made a party to the proceedings. The petition for the writ of habeas corpus was denied. At the October Term of this Court, we granted the plaintiff's motion to stay the execution of the warrant of extradition and admitted the plaintiff to bail in the amount of $3,000.00.\\nThe plaintiff first argues that his detainment as a fugitive from justice was illegal, in that he was detained for more than thirty days before the warrant of the Governor was served upon him. 13 V.S.A. \\u00a7 4955 provides, in part, that a person held as a fugitive from justice from another state shall be committed to jail by a warrant, reciting the accusation, for a time not to exceed thirty days. Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment, such person shall be admitted to bail. 13 V.S.A. \\u00a7 4956. If the accused is not arrested under warrant from the governor by the expiration of the time specified in the warrant, bond or undertaking, the judge may discharge him or may recommit him for a further period not to exceed sixty days. 13 V.S.A. \\u00a7 4957.\\n. In the instant case, the record is clear that the plaintiff has been confined since May 22,1970, and that he was still confined at the time of the issuance of the governor's warrant of extradition, dated July 31, 1970. The record is also clear that no order was made extending the time of confinement during that period of time for more than the statutory thirty days' detention.\\nWe must, therefore, agree with the contention of the plaintiff that his detention upon the warrant charging him with being a fugitive from justice was unlawful after the expiration of thirty days from the time of his arrest on May 22, 1970. At the expiration of that period, the plaintiff, if he had brought a writ of habeas corpus, would have been entitled to have been released from his confinement. We would also agree that if the Writ of habeas corpus now before this Court was for the release of the plaintiff from detention on the warrant charging him with being a fugitive from justice, that such relief would have to be afforded him by this Court.\\nBut the record before us is that the warrant against the plaintiff on the fugitive from justice charge was nolle prossed, and that he was arrested on the governor's warrant on August 5, 1970. It is upon such warrant that he is now confined, as was found by the Windsor County Court. In other words, the detention from which the plaintiff now seeks release is imposed upon him by reason of the governor's executive warrant of July 31, 1970. His petition for a writ of habeas corpus was not filed until September 7,1970.\\nThe trouble with the position of the plaintiff, relative to his admittedly illegal detention for more than the statutory period on the fugitive from justice warrant, is that he did not bring his writ for habeas corpus until that detention had expired, and until such time as he was in confinement under the executive warrant from the Governor.\\n\\\"When the Governor's warrant was served, the preliminary proceeding was dismissed. If he thought that the warrant from the municipal court caused him to be held illegally, he could have asked for a writ of habeas corpus at that time. It was too late to question the validity of the preliminary arrest after he had been arrested by the au thorityof the Governor's warrant.\\\" People v. Meyering, 355 Ill. 456, 189 N.E. 494, 497 (1934).\\nAs was said by Mr. Justice Brandeis in Stallings v. Splain, 253 U.S. 339, 64 L.Ed. 940, 943 (1920):\\n\\\"On the other hand, if the original arrest and detention had been illegal, Stallings would not be entitled to his discharge, if, before final hearing in the habeas corpus proceedings, legal cause for detaining him had arisen through the institution of removal proceedings. Where it appears that sufficient ground for detention exists, a prisoner will not be discharged for defects in the original arrest or commitment.\\\"\\nIt is well settled that a prisoner has no right to a writ of habeas corpus unless he is entitled to immediate release, and the writ will not issue unless he is presently restrained of his liberty without warrant of law. Macomber v. Hudspeth, 115 F.2d 114 (10th Cir. 1940), cert. denied, 313 U.S. 558, 85 L.Ed. 1519, 61 S.Ct. 833 (1941); 39 C.J.S. Habeas Corpus \\u00a7 13, at 443.\\nThe fact that the Governor's arrest warrant was issued more than 30 days after accused's original arrest as fugitive from justice did not vitiate the executive warrant. In re Colastanti, 104 N.J. Super. 122, 249 A.2d 1, 2 (1969), petition for certification denied, 53 N.J. 511, 251 A.2d 450 (1969). Also, see People ex rel. Green v. Nenna, 17 N.Y.2d 815, 218 N.E.2d 311 (1966). The issuance of the Governor's warrant, and the detention of the plaintiff by virtue of his arrest under such warrant, was not made defective by a possible illegality in his previous detention beyond the statutory time under his arrest on the fugitive from justice warrant.\\nThis leaves us only with the question of the legality of the executive warrant, and the plaintiff's arrest and detention by virtue of it, to determine if he is presently restrained of his liberty without warrant of law.\\n\\\"A court, in a habeas corpus proceeding to release one arrested as a fugitive from justice, is limited in its inquiry. It may inquire whether the petitioner is validly restrained under the applicable constitutional and statutory provi sions. Robb v. Connolly, 111 U.S. 624, 4 S.Ct. 544, 28 L.Ed. 542. The petitioner, held on such a. warrant, is entitled to have the issue of fact as to whether he is a fugitive from justice of the demanding state judicially tried and determined. Cook v. Hart, 146 U.S. 183, 13 S.Ct. 40, 36 L.Ed. 934. Also open to judicial inquiry and review are the questions whether the person held in custody is the one charged in the warrant or in the requisition papers, and whether the requisition papers have been withdrawn. The guilt or innocence of the accused may not be inquired into except to the extent that it is material in identifying the person held as the person charged with the crime.\\\" Russell v. Smith, Warden, 127 Vt. 225, 227, 245 A.2d 563 (1968).\\nThe only claim made by the plaintiff in respect to the executive warrant served upon him is that it did not recite substantially any facts necessary to the validity of the issuance of the warrant, nor was the plaintiff presented with evidence of affidavit or other evidence substantiating said warrant. The plaintiff presented no evidence in the habeas corpus proceeding before the Windsor County Court in support of this assertion.\\nThe lower court found that the plaintiff had been identified as the person named in the executive warrant, and also found that the petitioner had been indicted in the State of New York for burglary in the third degree and petit larceny. No exception was taken, or briefed, to such findings.\\nThe executive warrant, on its face, states that the representation and demand from the Governor of New York to the Governor of Vermont was accompanied by papers required by the Constitution and laws of the United States and which were certified as authentic by the Governor.of the State of New York. Nowhere has it been made to appear that the requisition papers have been withdrawn, nor does the plaintiff so assert.\\nThe ultimate findings of fact by the Windsor County Court was that it was unable to find that the petitioner is now restrained, imprisoned or deprived of his liberty contrary to the laws of Vermont, the Constitution of Vermont and of the United States. Such finding is supported by the other findings of fact made by the lower court and to which exceptions were not briefed by the plaintiff.\\nJudgment affirmed.\"}"
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+"{\"id\": \"4669270\", \"name\": \"In re Christine A. Colombe\", \"name_abbreviation\": \"In re Colombe\", \"decision_date\": \"1972-12-14\", \"docket_number\": \"No. 76-72\", \"first_page\": \"21\", \"last_page\": \"21\", \"citations\": \"131 Vt. 21\", \"volume\": \"131\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T19:09:33.182239+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Shangraw, C.J., Barney, Smith, Keyser and Daley, JJ.\", \"parties\": \"In re Christine A. Colombe\", \"head_matter\": \"In re Christine A. Colombe\\n[298 A.2d 820]\\nNo. 76-72\\nPresent: Shangraw, C.J., Barney, Smith, Keyser and Daley, JJ.\\nOpinion Filed December 14, 1972\\nJames M. Jeffords, Attorney General, Benson D. Scotch, Assistant Attorney General, Richard, L. Brock, Esq., Montpelier, for the child, Plaintiff.\\nMichael Kwpersmith, Esq., Vermont Legal Aid, Inc., Burlington, for the parents, Defendants.\", \"word_count\": \"160\", \"char_count\": \"994\", \"text\": \"Per Curiam.\\nThis is a proceeding to permanently deprive parents of their custodial rights to their infant child under the provisions of 33 V.S.A. \\u00a7 656. As a consequence of an altercation occurring at one of the hearings, the father was committed to Waterbury State Hospital and determined to be insane at the time of the hearing. Since no guardian was appointed to protect this parent's interest in a proceeding involving so vital a right, the resulting judgment cannot stand and a new hearing must be had. See Billings v. Billings, 123 Vt. 324, 326, 187 A.2d 333 (1963).\\nJudgment vacated and cause remanded.\"}"
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+"{\"id\": \"4676389\", \"name\": \"State of Vermont v. Frank Barrett, Jr.\", \"name_abbreviation\": \"State v. Barrett\", \"decision_date\": \"1974-04-02\", \"docket_number\": \"No. 83-71\", \"first_page\": \"369\", \"last_page\": \"376\", \"citations\": \"132 Vt. 369\", \"volume\": \"132\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-11T02:19:44.681498+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Shangraw, C.J., Barney, Smith, Keyser and Daley, JJ.\", \"parties\": \"State of Vermont v. Frank Barrett, Jr.\", \"head_matter\": \"State of Vermont v. Frank Barrett, Jr.\\n[320 A.2d 621]\\nNo. 83-71\\nPresent: Shangraw, C.J., Barney, Smith, Keyser and Daley, JJ.\\nOpinion Filed April 2, 1974\\nMotion for Reargument Denied June 4, 1974\\nRobert W. Gagnon, State\\u2019s Attorney, and Robert M. Paolini, Deputy State\\u2019s Attorney, for the State.\\nRichard E. Davis Associates, Barre, for Defendant.\", \"word_count\": \"2484\", \"char_count\": \"14720\", \"text\": \"Barney, J.\\nThe defendant was found guilty by a jury of knowingly possessing a regulated drug. The case had proceeded to trial after a hearing on the defendant's motion to suppress certain evidence. The motion was denied.and is one of the issues raised on the appeal. After the trial, two further motions were filed, one in arrest of judgment or for a new trial based on an allegedly prejudicial juror; and another for a new trial based on newly discovered evidence. Both motions were denied, and the motion for a new trial based on newly discovered evidence was remanded from this Court for hearing and findings which were accomplished. The motion was then again denied, and all these issues are now here.\\nA recital of the facts developed by the evidence is important to an understanding of the issues. There is a so-called informant involved. This person and a police officer went to the office of the state's attorney on a particular morning. The informer was searched at the police department. He was then given five dollars and driven by a detective to Elm Street in the city of Barre and instructed to go to the apartment occupied by the defendant and one Linda Thow at 114 Elm Street. He returned in a few minutes and gave the detective something that was established to be lysergic acid diethylamide, or LSD. As a result of that transaction, a search warrant was obtained and executed.\\nAs a consequence of the search, hypodermic needles and syringes and quantities of LSD were found. On this basis, the defendant was charged with knowingly and unlawfully possessing a regulated drug, in violation of 18 V.S.A. \\u00a7 4224(d) (4). At the hearing on the motion to suppress, the defendant sought to obtain the name of the informant, but the trial court upheld the state's objection. The sufficiency of the warrant was upheld and the motion to suppress denied.\\nAt the trial the informant was called as a witness by the defendant, who elicited testimony that the informer had had a case against him disposed of through an arrangement made with the state's attorney's office. The other witness called by the defense was Linda Thow, who testified that the night before the search there were no drugs in the place they were found at the time of the search. The presence of LSD in brown coin envelopes at the time of the search was not otherwise contested.\\nAfter the verdict, the respondent sought a new trial on the basis that the foreman of the jury, according to the voir dire taken in a trial one month after this case, stated he believed a respondent guilty until proven innocent. This motion was denied after hearing. The respondent also sought a new trial based on a letter allegedly written by the informer in the presence of Linda Thow, subsequent to the jury verdict in this case. The letter purportedly sets out facts different than the facts to which the informer testified at the jury trial, and, the defendant claims that it indicates that the informer, rather than the defendant, was the guilty person.\\nA hearing was held at which time the informer testified that, although the signature was probably his, he had no independent recollection of any events surrounding the writing or signing of the letter. The trial court found the letter unreliable and lacking in probative value, and the supporting testimony unworthy of credit. Subsequently, findings were made and conclusions reached whereafter the motion for a new trial based on the evidence was denied.\\nAlmost all of the issues revolve around the informer. Turning first to the claim of prejudice based on the failure of the trial court to allow disclosure, although the informant was called as a witness during the trial by the defendant, he was never officially conceded to be, or identified as, the informer by the prosecution. All attempts to do so by the defendant were objected to by the state and sustained by the trial court.\\nThe defendant bases his first claim of error on two propositions. Both are mistaken. The first asserts that the informant was an eyewitness to the crime. This is not so. The crime charged was possession of a regulated drug and stemmed from the material found under a search warrant. The informer was not present.\\nThe second claim of error is that there was some issue of entrapment. There is simply nothing in the evidence that indicates any police activity or action by the informer inducing the defendant to \\\"possess\\\" regulated drugs. In argument the defendant has, from time to time, claimed that the evidence was \\\"planted\\\", but there is simply nothing in the evidence to give such a claim any weight. The defendant chose not to take the stand in the face of evidence from the state that at the time of the search he acknowledged ownership of the seized material that justified the criminal charge.\\nThus it appears there is no adequate justification for requiring disclosure of the identity of the informer, as defined in Roviaro v. United States, 353 U.S. 53 (1957); and McCray v. Illinois, 386 U.S. 300 (1967). Additionally, as is pointed out in Stanley v. State, 313 A.2d 847, 864 (Md. Ct.Sp.App. 1974), with the informer actually present and testifying, insofar as that testimony was desired by the defense, it was entirely available.\\nThe Stanley case, supra, a scholarly opinion by Judge Charles E. Moylan, Jr., of the Maryland Court of Special Appeals, is especially helpful in the issues relating to the search warrant. Judge Moylan carefully delineates the constitutional requirements for search warrants more or less obscurely outlined by Aguilar v. Texas, 378 U.S. 108 (1964), and redefined by Spinelli v. United States, 393 U.S. 410 (1969). His analysis of the so-called \\\"Aguilar test\\\" is found by this Court to be a most accurate categorization thereof and will be resorted to in deciding this case.\\nIt is the complaint of the defendant that the state failed to establish the reliability of the informer, and that therefore the trial judge should have granted his motion to sup press. He argues that here, too, he should have been allowed to have the informer identified so that he might establish his unreliability by examination.\\nThe concept supporting the search warrant is probable cause, in this case, to believe that certain property evidencing criminal conduct was present at the described premise. The judgment must be made by the appropriate judicial officer as an independent and detached magistrate. Coolidge v. New Hampshire, 403 U.S. 443, 449 (1971). Most of the problems revolve around what sort of presentation is sufficient to support the action of such a magistrate in issuing the search warrant.\\nThe Aguilar case, supra, is usually described as having a two-pronged test. But it is important to keep in mind what is being tested. The concern is for hearsay. If an affiant comes before a magistrate and is able to present a statement supporting probable cause entirely from his own first-hand knowledge, these Aguilar and Spinelli considerations do not apply. It is the recitations of a third party to the affiant that produces the hearsay.\\nA clear understanding of that concern is essential in this case. The only unobserved activity by the informer here occurred when he left his police escort to enter the premises later searched, and returned. He entered those premises after having been searched for drugs and with money in hand to buy drugs. He returned in a few minutes with two tablets of LSD. He stated that he bought the drugs from the occupants of the apartment and that there were other supplies of LSD in the apartment.\\nThe \\\"Aguilar tests\\\" have been variously described, but the most lucid is found in the Stanley case, supra. There is initially the \\\"basis of knowledge\\\" test. It is not concerned with the integrity or veracity of the informant, but with the actual source of the information from which the magistrate is to be drawing his conclusion as to probable cause. Is it the direct sensory perception of the informer, or is he merely repeating someone else's conclusion? To pass muster, the informant must transmit the factual basis for the conclusions, so that the magistrate may make his own direct analysis. Stanley v. State, supra, 313 A.2d at 858.\\nThis case gives no problem in that regard, since the informer's report to the affiant concerns first-hand experience. The critical issue is derived from the second Aguilar test concerning \\\"veracity\\\". The test of \\\"veracity\\\" in this connection can be met in one of two ways. First, by proof of the inherent credibility of the informer himself, which must be demonstrated; or, second, by the presence of factors reasonably demonstrating the \\\"reliability\\\" of the information furnished by the informer. See State v. Nickerson, 114 N.H. \\u2014 , 314 A.2d 648, 650 (1974). Note that under this rule it is possible for an \\\"unreliable\\\" informer, that is one of poor credibility, to give \\\"reliable\\\" information. Thus the question is whether there is a demonstration of facts and circumstances indicating that the information given is probably true, whatever the credibility of the informer may be otherwise.\\nThe purpose of the search of the informer and his being escorted to the place of purchase was to eliminate both as much as possible of the hearsay aspects of the search warrant request and to reduce the reliance on \\\"veracity\\\" to a minimum. The magistrate had enough facts to support a finding of probable cause, and had them in a form which rendered extended evaluation of the informant's credibility unnecessary. The motion to suppress was properly denied.\\nThe informant plays a part in the next issue, also. About ten days after the verdict of guilty was returned in this case, the informer visited the defendant's apartment. While there he is alleged to have written a statement saying that he planted the LSD that was found in the apartment. This statement was made the subject of a motion for a new trial. A hearing was ordered, and the informant summoned to testify. On the stand he claimed no memory of writing out any such statement, but stated it did appear to be his handwriting. He also testified as to loss of memory concerning his trip to the apartment to buy drugs. He asserts the lack of memory was due to head injuries and repeated drug use. Because of various other proceedings, two years had elapsed between the trial and the time of this testimony.\\nIn view of the evidence, the trial court refused to find the statement of probative value and rejected the testimony of supporting witnesses as not credible. Based on those findings, the trial court rejected the motion for a new trial on that ground. These judgments as to credibility and fact-finding are entirely for the lower court, to be sustained unless unsupported by the record. In re: Hatch, 130 Vt. 248, 258, 290 A.2d 180 (1972); Everlasting Memorial Works v. Huyck Monument Works, 128 Vt. 103, 109, 258 A.2d 845 (1969). This is dispositive of the issue, over and above the considerations that the witness was available and testified under oath at trial as the defendant's witness.\\nThe defendant also moved for a new trial on the basis of a claim that one of the jurors mistook the law. It appears that this juror served in another trial at some later time. It was claimed that during the voir dire on that case the juror stated his belief to be that the accused must prove himself innocent. From this one statement, the defendant argues that the juror must have misconstrued the law in his own case one month previously. He acknowledges that the jury was adequately instructed in his own' case as to the presumption of innocence favoring the defendant.\\nWe must assume that the jurors followed the instructions given them by the trial court. Mainieri v. McLellan, 125 Vt. 157, 211 A.2d 239 (1965). Absent any objective evidence of misconduct in the case at hand, the sanctity of the jury system requires that no inquiry be made, after verdict, into the beliefs and motivation of the jurors. Bellows Falls v. State Highway Board, 123 Vt. 408, 412, 190 A.2d 695 (1963). To hold otherwise would be to expose the jury system to improper pressures and render valid verdicts subject to attack and unjustified impeachment. The lower court correctly denied this motion.\\nOther issues raised by the defendant are disposed of by our ruling sustaining the denial of the motion to suppress and justify no further treatment here.\\nThe rulings of the lower court on the motions presented are sustained and the judgment of conviction is affirmed. Let execution be done.\\nOn Motion To Reargue\\nBarney, CJ.\\nAs so frequently happens, the defendant seeks to reargue on a point not raised below on the motion to sup press. However, since an aspect of the reliability of the informer was argued there and presented on appeal, we will indicate why the present contention is substantively unsound.\\nThe defendant's concern heretofore emphasized matter justifying the disclosure of the informant's identity. As we pointed out in the opinion, this issue was effectively negatived with the informer actually present and testifying.\\nReaching back to the initial appearance before the magistrate with respect to the issuance of the search warrant, we will now view the application without regard to evidence or information outside its four corners. It must be said, however, that the record suggests quite plainly that other information in the possession of the officer was inquired of. This issue was not pursued at the suppression hearing, and we have recently advised applicants for warrants and magistrates to make a record of what additional facts are furnished at the time of issuance. State v. Rocheleau, 131 Vt. 563, 568, 313 A.2d 33 (1973).\\nIn contrast to that case, however, this application adequately sets out the probability of criminal activity. The challenged issue relates to the recitation by the police officer that this informant had given reliable information in the past, particularly relating it to a specific case and individual and his subsequent arrest on a drug charge. Taking this assertion, together with the total content of the information given on the affidavit, no constitutional defect in the issuance of the search warrant by the magistrate in this case has been made to appear, even on this ground. No basis for further argument has been shown.\\nMotion for reargument denied; let full entry go down.\"}"
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diff --git a/vt/4681518.json b/vt/4681518.json
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+"{\"id\": \"4681518\", \"name\": \"Battenkill Construction Company, Inc. v. Haig's, Inc., Haig Bogossian and Jean C. Bogossian\", \"name_abbreviation\": \"Battenkill Construction Co. v. Haig's, Inc.\", \"decision_date\": \"1975-10-07\", \"docket_number\": \"No. 213-74\", \"first_page\": \"503\", \"last_page\": \"506\", \"citations\": \"133 Vt. 503\", \"volume\": \"133\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T20:42:22.369158+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Barney, C.J., Smith, Daley, Larrow and Billings, JJ.\", \"parties\": \"Battenkill Construction Company, Inc. v. Haig\\u2019s, Inc., Haig Bogossian and Jean C. Bogossian\", \"head_matter\": \"Battenkill Construction Company, Inc. v. Haig\\u2019s, Inc., Haig Bogossian and Jean C. Bogossian\\n[346 A.2d 213]\\nNo. 213-74\\nPresent: Barney, C.J., Smith, Daley, Larrow and Billings, JJ.\\nOpinion Filed October 7, 1975\\nWhalen & O\\u2019Dea, Manchester Center, for Plaintiff.\\nCharles R. Eiehel, Esq., Manchester Center, for Defendants.\", \"word_count\": \"1259\", \"char_count\": \"7342\", \"text\": \"Smith, J.\\nThis is an action brought by the plaintiff corporation under a claimed oral contract for services and labor performed for the defendants for the construction and improvements on real estate owned by the defendants located in Winhall, Vermont.\\nThe defendants answered the complaint of the plaintiff by a general denial. Hearing was held in the Bennington Superior Court on July 26, 1974, which resulted in a judgment for the plaintiff against Haig's, Inc. in the amount of $7,341.50, the full amount claimed by the plaintiff in its complaint, plus interest. An appeal was duly taken to this Court, and at the time of hearing the plaintiff appeared and argued his case, with the defendant apparently content to submit its case on the written briefs.\\nBoth sides waived findings of fact below so that the case here is presented only on the judgment.\\nThe services performed by the plaintiff involved stone and masonry work, including the pouring of cement, as a subcontractor for Haig's, Inc. In support of its claim the plaintiff presented oral testimony of its president as well as its bookkeeper, who regularly visited the job site. Admitted as an exhibit were handwritten records of the various charges made by the plaintiff for the time and labor of its employees.\\nThe appeal here is almost entirely based upon the matter of pleadings. Haig's, Inc. claimed that the plaintiff did not have sufficient manpower on the job so that the defendant had to assist in the cement pouring by furnishing additional labor of its own and that the plaintiff used defective workmanship in various aspects of the construction, which would have to be remedied at considerable cost to the defendant. These claims, the defendant argues, could be properly raised as a defense in the nature of a set-off under a pleading of a general denial.\\nDuring the hearing below, Haig's offered evidence as to costs incurred by assisting in the cement pouring and to the costs necessary to remedy the defective workmanship. The plaintiff objected that no counterclaim had been filed in the case. This objection was sustained by the lower court. The defendant then asserted that the evidence offered was in the nature of an offset, but the court denied the offer on the ground that offset was not set forth in the pleadings. Subsequently, the defendant moved to have the pleadings amended to conform with the proof that he wished to elicit from the witnesses. Objection was made and sustained by the court.\\nIn its brief here Haig's first contends that the matters upon which it wished to rely were strictly defenses in whole or in part to the plaintiff's cause of action and need not have been set up as a cross-demand. It cites the case of Rutland Sash & Door Co. v. Gleason, 98 Vt. 215, 219, 126 A. 577 (1924). This Court there held in essence that a defendant could reduce the plaintiff's claimed damages by proving that the services were unskillfully or negligently performed. The Court held, under the Practice Act in effect at that time, that matters of recoupment are admissible though not specially pleaded.\\nThe Vermont Rules of Civil Procedure were promulgated by this Court on January 25, 1971, and took effect in July of that year, some years prior to the beginning of this action. V.R.C.P. 86(a). Rule 12(b) states, in part, \\\"Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required . . . .\\\" Certain exceptions to this requirement are then set forth, none of which, however, are applicable to the case before us.\\nWe now quote, in part, from V.R.C.P. 13(a):\\nA pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.\\nAgain there are some exceptions to this rule, none of which are applicable to the present case. As the Reporter's Notes clearly state, Rule 13 (a) makes compulsory the assertion of any counterclaim arising out of the same transaction or occurrence as an opposing claim, subject to certain exceptions. The effect of Rule 13(a) is to place the burden upon a defendant to plead any claim of this nature he may have against the plaintiff, however designated prior to the adoption of this rule, and this the defendant did not do. The decision of the lower court is sustained on this point.\\nThe defendant next argues that even if it did not properly plead its defenses the lower court erred in not permitting it to amend its pleadings at trial to conform to the evidence under V.R.C.P. 15 (b), which provides in part:\\nIf evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.\\nRule 15(b), according to the Reporter's Notes, \\\"states a more liberal and pragmatic test than that previously followed in Vermont.\\\" In effect the rule states that it should be applied freely, particularly when the \\\"merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence [will] prejudice him in maintaining his action or defense upon the merits.\\\" The burden, then, is placed upon the objecting party to make a showing that the offered amendment will be prejudicial to him. The rule permits a continuance, if the objecting party so desires, to meet the claims alleged in the motion.\\nIn the absence of findings of fact in the instant case, there is nothing before us to indicate that the plaintiff in this cause offered any arguments or evidence that the allowing of such motion would prejudice him. A search of the record also fails to show that such argument was advanced by the plaintiff.\\nThe refusal of the trial court to allow the amendment offered by the defendant, under the facts and circumstances of the case before it, was not responsive to the provision of Rule 15(a) that \\\"leave shall be freely given when justice so requires.\\\" The denial of the motion to amend by the lower court did not carry out the liberal intent of the rules and must, therefore, be reversed. Tracy v. Vinton Motors, Inc., 130 Vt. 512, 514, 296 A.2d 269 (1972).\\nFor the reason that the entry must be reversed and remanded, and a new hearing be given the parties, we need not consider the last argument made by the defendant relative to the amount of the judgment.\\nReversed and remanded.\"}"
\ No newline at end of file
diff --git a/vt/4696344.json b/vt/4696344.json
new file mode 100644
index 0000000000000000000000000000000000000000..4ef0a752e148f7f05ff48dfb8a9f4fe76a71f704
--- /dev/null
+++ b/vt/4696344.json
@@ -0,0 +1 @@
+"{\"id\": \"4696344\", \"name\": \"Herman M. LASH v. LASH FURNITURE COMPANY, INC., Ralph B. Lash and Nathaniel R. Lash and Ralph B. Lash and Lash Furniture Company, Inc. v. Herman M. Lash\", \"name_abbreviation\": \"Lash v. Lash Furniture Co.\", \"decision_date\": \"1977-07-18\", \"docket_number\": \"No. 22-76\", \"first_page\": \"636\", \"last_page\": \"636\", \"citations\": \"135 Vt. 636\", \"volume\": \"135\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T20:41:54.896717+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Herman M. LASH v. LASH FURNITURE COMPANY, INC., Ralph B. Lash and Nathaniel R. Lash and Ralph B. Lash and Lash Furniture Company, Inc. v. Herman M. Lash,\", \"head_matter\": \"Herman M. LASH v. LASH FURNITURE COMPANY, INC., Ralph B. Lash and Nathaniel R. Lash and Ralph B. Lash and Lash Furniture Company, Inc. v. Herman M. Lash,\\nNo. 22-76\\nJuly 18, 1977.\", \"word_count\": \"46\", \"char_count\": \"259\", \"text\": \"Appeal dismissed for lack of compliance with progress order dated June 7, 1977.\"}"
\ No newline at end of file
diff --git a/vt/4699270.json b/vt/4699270.json
new file mode 100644
index 0000000000000000000000000000000000000000..42f205f5b700bddd3c8dd0a8a26de39a85726c23
--- /dev/null
+++ b/vt/4699270.json
@@ -0,0 +1 @@
+"{\"id\": \"4699270\", \"name\": \"John Doe, et al. v. Thomas P. Salmon, et al.\", \"name_abbreviation\": \"Doe v. Salmon\", \"decision_date\": \"1977-09-12\", \"docket_number\": \"No. 39-77\", \"first_page\": \"443\", \"last_page\": \"448\", \"citations\": \"135 Vt. 443\", \"volume\": \"135\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T20:41:54.896717+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Barney, C.J., Daley, Larrow, Billings, and Hill, JJ.\", \"parties\": \"John Doe, et al. v. Thomas P. Salmon, et al.\", \"head_matter\": \"John Doe, et al. v. Thomas P. Salmon, et al.\\n[378 A.2d 512]\\nNo. 39-77\\nPresent: Barney, C.J., Daley, Larrow, Billings, and Hill, JJ.\\nOpinion Filed September 12, 1977\\nThomas J. Kenney, Burlington, for Plaintiffs.\\nM. Jerome Diamond, Attorney General, and Louis P. Peck, Chief Assistant Attorney General, Montpelier, for Defendants.\\nClarke A. Gravel and Brooke Pearson of Gravel, Shea & Wright, Burlington, for defendant-intervenor McClure Newspapers, Inc.\\nPaul D. Sheehey, Burlington, for defendant-intervenor Mt. Mansfield Television, Inc.\", \"word_count\": \"1856\", \"char_count\": \"11220\", \"text\": \"Daley, J.\\nThis is an appeal from a judgment of the Franklin Superior Court enjoining the former Governor of this State and other named public officials from disclosing to the general public and news media any information relating to certain full pardons granted prior to July 1,1976. The action was instituted as a class action by the chairman of the Vermont Parole Board and an unnamed pardon recipient.\\nThe facts are not disputed, having been the subject of a stipulation entered into by all parties, and may be summarized as follows. The defendant public officials are custodians of the records of pardons granted by Governor Salmon. The pardons were issued and information related thereto was recorded prior to July 1, 1976. In a formal opinion (Op. Att'y. Gen. 77-76), the Attorney General advised the defendant Governor that the pardon records were public in nature and presumably available for review by the public, subject only to limited discretionary power in the Governor to withhold the records in the interests of public policy based upon individual cases. The Governor would exercise that discretion in some cases on behalf of some of the plaintiffs. The intervenor members of the news media claim the right to know, publish, disseminate and/or disclose to the general public the names of all persons pardoned, the dates of those pardons, and the offenses and penalties to which those pardons relate. The plaintiff class includes individuals who applied for pardons conditioned upon confidentiality, who provided information prior to July 1, 1976, who would be adversely affected in their economic, social, and familial relationships by the public disclosure of such pardons, and who are employees of the State.\\nUpon these facts, the trial court concluded and adjudged that although the public, including the news media, has the right to inspect and publish information contained in public records, that right must be based upon an interest which is founded upon more than mere curiosity and which is not detrimental to the public good. Further, the release of such information requires an exercise of judgment and discretion by the pardoning authority based upon reasonable procedures or rules and regulations established to insure that the dissemination of the information is not detrimental to the public good and is not done solely out of curiosity. Concluding that such a determination had not been made, the trial court issued an injunction to continue in force and effect until that requirement had been met. The original defendants and the intervenors appeal from the judgment.\\nThe appellants contend that the judgment is not supportable in fact or in law. We agree and dismiss. While the individual considerations advanced by the plaintiffs in their desire for anonymity are understandable, our decision is limited by the agreed statement of facts and the structure of controlling statutory law and judicial decisions in (urce and effect at the time the pardons were granted. However sympathetic we might be to the defendants' position, we must apply the law to the facts placed before us.\\nThe critical question is whether the plaintiffs have demonstrated a legal right to relief as ordered by the judgment of the trial court. The power to pardon is a function of the State delegated to the Executive and conferred upon the Office of Governor. Vt. Const., ch. II, \\u00a7 20. It is not a personal act of the individual holding that office, but it is an official declaration by the chief executive that a named person is relieved from the consequences of a specific crime or crimes. 59 Am.Jur.2d Pardon and Parole \\u00a7 3; see Brown v. Tatro, 134 Vt. 248, 250, 356 A.2d 512 (1976). The exercise of the pardoning power is within the sole discretion of the Governor and is not judicially reviewable except as to questions of validity. It is an official act based upon public considerations as well as an act of grace. 59 Am.Jur.2d, swpra, at \\u00a7 12, citing Rich v. Chamberlain, 104 Mich. 436, 62 N.W. 584 (1895).\\nSince the granting of a pardon is an official act, we turn to Chapter I, article 6 of our State constitution, which provides:\\nThat 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.\\nThis constitutional mandate is carried out by 3 V.S.A. \\u00a7 52, which imposes a duty upon the Secretary of Civil and Military Affairs to keep a full and complete record of official acts of the Executive Department. This same officer is required to make copies of records in his office attested under his seal. 3 V.S.A. \\u00a7 53. Being an official act, the granting of a pardon is by virtue of 3 V.S.A. \\u00a7 52 a record required to be kept by law, and therefore, it is a public record. Clement v. Graham, 78 Vt. 290, 312-13, 63 A. 146 (1906). We have no way of knowing from the findings of fact what information is contained in these records. Since the granting of the pardon is the official act, the record is that which is recorded to effect the granting of the pardon.\\nThe right of all citizens to inspect public records and documents made and preserved by their government when not detrimental to the public interest has been established by the common law. Matte v. City of Winooski, 129 Vt. 61, 63, 271 A.2d 830 (1970); Clement v. Graham, supra. There are limited exceptions to this doctrine which are imposed by statute where considerations of public policy and necessity require some restraint, e.g., pre-sentence investigation reports (28 V.S.A. \\u00a7 204(d)), certain tax records (32 V.S.A. \\u00a7 3102, 5815(d)), records of juvenile proceedings (33 V.S.A. \\u00a7 651, 663), and judicial selection (4 V.S.A. \\u00a7 602(c)). The parties have cited us to no constitutional, statutory or common law authority, and we find none, which would support the premise that records of pardons granted by the Governor are exceptions to the general law of public records. In fact, the contrary would appear from a reading of 28 V.S.A. \\u00a7 809, which sets forth the procedures to be followed once an application for a pardon is made. Without reciting the full section, it is significant to note that once the Governor has reached his decision after hearing, he shall communicate it in writing to the applicant and the State's Attorney of the county in which the offense was committed; and at his direction may cause that decision to be published in one or more newspapers within the State. It should also be noted here that official court records of arrest and conviction are public records available for public inspection.\\nAs a correlative to the right of inspection of public records and documents, the custodian of those records has a legal duty to the public to accord that right. This duty is ministerial in nature and so clear and specific that no element of discretion or of official judgment is involved in its performance. Clement v. Graham, supra, 78 Vt. at 318. The situation which led to this appeal is remarkable because it was the inverse of most public records controversies, including Clement and Matte. Usually a plaintiff seeks access to records over the objections of a public official as opposed to the situation here where the plaintiffs sought an injunction to prevent voluntary disclosure. Despite the difference in the factual context, the standard of open access is the same.\\nThe appellees argue that the Governor has discretionary power to declare the records of pardons immune from disclosure when he finds that revelation would clearly be an unwarranted invasion of personal privacy, a frustration of the purpose for which the pardon was granted or would otherwise be against public policy. Essentially, they contend that the public good may lie in uninhibited access to public records but that a general rule of publicity frustrates and adversely affects the pardon process because it discourages potential pardonees from seeking pardon to avoid additional publicity of their previous circumstances at some later date. In effect, they claim that the private interests of the individual are superior to the public right to know, thus the pardon records would be accessible only upon a discretionary determination by the Governor that disclosure is in the public interest. Our preceding discussion makes clear that this theory is not the law in Vermont.\\nThe plaintiffs also contend, and the court found, that in granting some of the pardons, the Governor agreed with the recipients that the information pertaining to their pardons would be kept confidential. Without in any way casting reflection upon the good faith of the Governor, such private agreements must give way to the right of access to public records held by public officials. By virtue of 3 V.S.A. \\u00a7 52, the records of pardons are public record subject only to statutory exemptions and the requirements of the common law. Those agreements, although compassionately entered into, could only be valid if authorized by law, and there is no such law. A public official's discretion to withhold records otherwise public only arises when the publicity of those records would be detrimental to the public good, and the agreed statement of facts does not support that conclusion.\\nThe statement of facts reveals that the disclosures in question here were sought prior to the effective date of the present public records law. 1 V.S.A., subchapter 3, chapter 5, effective July 1, 1976. Future requests for disclosure would be subject to the provisions of that Act but we are not pointed to, nor do we perceive, any provisions of that Act which suggest a result different than that which we have reached here.\\nThe court's findings of fact recite the parties' agreed statement of facts which is no more than a slender conclusory statement of possible harm to the plaintiffs' private interests and individual concerns, inadequate as a matter of law to demonstrate detriment to the public good arising from the obtaining of knowledge of official acts of the State's highest officers. In the absence of findings standing alone or providing necessary inferences that the release of information would be detrimental to the public good, the judgment is unsupportable in law. Moreover, because the plaintiffs failed to establish a legal right to the remedy they sought, the court erred in not granting the original defendants' motion to dismiss on the ground that the complaint failed to state a cause of action upon which relief could be granted.\\nThe judgment order enjoining public inspection of pardons records is vacated, and the cause is dismissed.\"}"
\ No newline at end of file
diff --git a/vt/4704719.json b/vt/4704719.json
new file mode 100644
index 0000000000000000000000000000000000000000..fab74086a8ea0ea31e2d2ae7e8577d79e5402670
--- /dev/null
+++ b/vt/4704719.json
@@ -0,0 +1 @@
+"{\"id\": \"4704719\", \"name\": \"Remo SEGALLA, Appellant v. UNITED STATES FIRE INSURANCE COMPANY, William C. Ryan, Mable Ryan, Gerry Smith, James Martel, Rutland Foundations, Inc.\", \"name_abbreviation\": \"Segalla v. United States Fire Insurance\", \"decision_date\": \"1977-02-28\", \"docket_number\": \"No. 96-76\", \"first_page\": \"630\", \"last_page\": \"630\", \"citations\": \"135 Vt. 630\", \"volume\": \"135\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T20:41:54.896717+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Remo SEGALLA, Appellant v. UNITED STATES FIRE INSURANCE COMPANY, William C. Ryan, Mable Ryan, Gerry Smith, James Martel, Rutland Foundations, Inc.,\", \"head_matter\": \"Remo SEGALLA, Appellant v. UNITED STATES FIRE INSURANCE COMPANY, William C. Ryan, Mable Ryan, Gerry Smith, James Martel, Rutland Foundations, Inc.,\\nNo. 96-76\\nFebruary 28, 1977.\", \"word_count\": \"68\", \"char_count\": \"454\", \"text\": \"Appeal dismissed with prejudice relative to defendants, William C. Ryan, Mable Ryan, Gerry Smith, James Martel and Rutland Foundations, Inc., but not against United States Fire Insurance Company, by stipulation of the parties filed with the Supreme Court on February 25, 1977.\"}"
\ No newline at end of file
diff --git a/vt/4715251.json b/vt/4715251.json
new file mode 100644
index 0000000000000000000000000000000000000000..2ccf24fc97aadb5b621ee120d0450e8a5ffc5082
--- /dev/null
+++ b/vt/4715251.json
@@ -0,0 +1 @@
+"{\"id\": \"4715251\", \"name\": \"ST. JOHNSBURY ELECTRIC COMPANY, INC. v. THE HANOVER INSURANCE COMPANIES\", \"name_abbreviation\": \"St. Johnsbury Electric Co. v. Hanover Insurance\", \"decision_date\": \"1979-11-15\", \"docket_number\": \"No. 339-79\", \"first_page\": \"644\", \"last_page\": \"644\", \"citations\": \"137 Vt. 644\", \"volume\": \"137\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:48:40.186060+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ST. JOHNSBURY ELECTRIC COMPANY, INC. v. THE HANOVER INSURANCE COMPANIES,\", \"head_matter\": \"ST. JOHNSBURY ELECTRIC COMPANY, INC. v. THE HANOVER INSURANCE COMPANIES,\\nNo. 339-79\\nNovember 15, 1979.\", \"word_count\": \"56\", \"char_count\": \"347\", \"text\": \"Upon payment of one hundred dollars terms to the clerk of this Court for the benefit of the appellee, appellant shall proceed without transcript and file printed case and brief on or before December 4, 1979, otherwise appeal will be dismissed.\"}"
\ No newline at end of file
diff --git a/vt/4722342.json b/vt/4722342.json
new file mode 100644
index 0000000000000000000000000000000000000000..55a005bcdf804fc3437de279eafb0be59ed59720
--- /dev/null
+++ b/vt/4722342.json
@@ -0,0 +1 @@
+"{\"id\": \"4722342\", \"name\": \"Hans Walter VAHLTEICH & Beverly Vahlteich Daigle v. Pauline KNOTT and Clyde L. Knott\", \"name_abbreviation\": \"Vahlteich v. Knott\", \"decision_date\": \"1980-01-15\", \"docket_number\": \"No. 316-78\", \"first_page\": \"613\", \"last_page\": \"613\", \"citations\": \"138 Vt. 613\", \"volume\": \"138\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-11T02:48:23.044681+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hans Walter VAHLTEICH & Beverly Vahlteich Daigle v. Pauline KNOTT and Clyde L. Knott,\", \"head_matter\": \"Hans Walter VAHLTEICH & Beverly Vahlteich Daigle v. Pauline KNOTT and Clyde L. Knott,\\nNo. 316-78\\nJanuary 15, 1980.\", \"word_count\": \"40\", \"char_count\": \"237\", \"text\": \"The entry dated December 4, 1979, is stricken. Printed case to be filed on or before January 4, 1980, or cause dismissed.\"}"
\ No newline at end of file
diff --git a/vt/4756518.json b/vt/4756518.json
new file mode 100644
index 0000000000000000000000000000000000000000..d694b9584463d520b69b6d81b5257ef403a2a0ab
--- /dev/null
+++ b/vt/4756518.json
@@ -0,0 +1 @@
+"{\"id\": \"4756518\", \"name\": \"American Trucking Assns., Inc., International Transport, Inc., Harnum, B.H., Inc., Individually and on Behalf of All Others Similarly Situated v. William Conway, Comm'r, Motor Vehicles, Paul Philbrook, Comm'r, Public Safety, Richard Snelling, Governor, State of Vermont, and Thomas Evslin, Secretary, Agency of Transportation, Each Individually and in Their Official Capacities\", \"name_abbreviation\": \"American Trucking Assns., Inc. v. Conway\", \"decision_date\": \"1986-02-21\", \"docket_number\": \"No. 83-452\", \"first_page\": \"574\", \"last_page\": \"579\", \"citations\": \"146 Vt. 574\", \"volume\": \"146\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-11T01:13:58.859122+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Allen, C.J., Hill, Peck, Gibson and Hayes, JJ.\", \"parties\": \"American Trucking Assns., Inc., International Transport, Inc., Harnum, B.H., Inc., Individually and on Behalf of All Others Similarly Situated v. William Conway, Comm\\u2019r, Motor Vehicles, Paul Philbrook, Comm\\u2019r, Public Safety, Richard Snelling, Governor, State of Vermont, and Thomas Evslin, Secretary, Agency of Transportation, Each Individually and in Their Official Capacities\", \"head_matter\": \"American Trucking Assns., Inc., International Transport, Inc., Harnum, B.H., Inc., Individually and on Behalf of All Others Similarly Situated v. William Conway, Comm\\u2019r, Motor Vehicles, Paul Philbrook, Comm\\u2019r, Public Safety, Richard Snelling, Governor, State of Vermont, and Thomas Evslin, Secretary, Agency of Transportation, Each Individually and in Their Official Capacities\\n[508 A.2d 405]\\nNo. 83-452\\nPresent: Allen, C.J., Hill, Peck, Gibson and Hayes, JJ.\\nOpinion Filed February 21, 1986\\nRalph A. Foote, Robert H. Moyer, and Charles Starbuck of Conley and Foote, Middlebury, for Plaintiffs-Appellants.\\nJeffrey L. Amestoy, Attorney General, and Robert C. Schwartz, Assistant Attorney General, Montpelier, for Defendants-Appellees.\", \"word_count\": \"1688\", \"char_count\": \"10499\", \"text\": \"Peck, J.\\nThis is an appeal by the plaintiff class from the November 16, 1983, judgment order of the Washington Superior Court, which dismissed plaintiffs' action with prejudice. Plaintiffs had challenged the constitutionality of a set of statutes which authorized the imposition of certain fees upon truck owners or operators whose trucks were not registered in Vermont. The trial court upheld the fee system as constitutional. We reverse.\\nVermont adopted the challenged fee system in 1981. 23 V.S.A. \\u00a7 415-419 (Cum. Supp. 1982) (Act 87). We have previously summarized Act 87:\\nAct No. 87 required operators of trucks with a gross weight of 18,000 pounds or more which were registered outside of Vermont to obtain a permit, costing $40, for each truck that would be owned or operated in Vermont. Id. at \\u00a7 18 (codified at 23 V.S.A. \\u00a7 415 (Cum. Supp. 1982)). In addition, a fee was charged for each time a foreign registered truck entered the state. The entry fee was $15, with a surcharge of $10 if the foreign truck was registered in a state that imposed more than one tax on trucks using its highways. Id. at \\u00a7 19 (codified at 23 V.S.A. \\u00a7 417 (Cum. Supp. 1982)). In lieu of these two charges, operators could purchase a single trip permit, which authorized a single entry into Vermont for a fee of $40. Id. at \\u00a7 18a (codified at 23 V.S.A. \\u00a7 415a (Cum. Supp. 1982)). None of these fees were assessed against Vermont registered trucks.\\nAmerican Trucking Associations, Inc. v. Conway, 142 Vt. 17, 18-19, 451 A.2d 42, 42-43 (1982). The fees were paid into the \\\"Transportation Fund\\\" for construction and maintenance of Vermont highways.\\nIn 1981 plaintiffs attacked Act 87 on constitutional grounds, alleging, among other things, that the fee system violated the Commerce Clause of the United States Constitution. Plaintiffs requested declaratory, injunctive and monetary relief. The trial court held the fee system constitutional and plaintiffs appealed. This Court vacated the judgment of the lower court and remanded for additional findings of fact. Id. at 23, 451 A.2d at 45. On remand the trial court again declared the Act constitutional. The new judgment was based, in part, on a stipulation of the parties adopted in the original court decree, the findings as amended, and the original conclusions of law. The stipulation included an agreement that:\\nBut for the registration fees provided for in 23 V.S.A. 367 and 23 V.S.A. 371 (a), the purchase and use taxes [32 V.S.A. \\u00a7 9701-9818] assessed by the State of Vermont, and the gasoline fuel taxes assessed on fuels purchased in the State of Vermont, carriers whose motor vehicles are registered in the State of Vermont pay no fees, taxes or other assessments to the State of Vermont for the operation of their motor trucks within the boundaries of Vermont.\\nThe original findings included:\\nAll of the United States jurisdictions impose registration licensure on the domiciliary motor trucks. It is thus a fact that virtually all motor trucks pass freely, as far as compliance with registration requirements is concerned, in interstate commerce throughout the nation if they have complied with the registration requirements of their state of domicile.\\nThe trial court held the fee system imposed under Act 87 did not discriminate against interstate commerce because it operates as a compensation tax. In effect, the court held that the Act 87 fees imposed on foreign-registered truckers were offset by, or served to compensate for, the fees imposed on only Vermont registered truckers \\u2014 registration fees, 23 V.S.A. \\u00a7 367, and the purchase and use taxes, 32 V.S.A. \\u00a7 9701-9818.\\nThe fees imposed by Act 87 are not \\\"compensatory\\\" and are violative of the Commerce Clause. A state tax \\\"is not per se invalid because it burdens interstate commerce since interstate commerce may constitutionally be made to pay its way.\\\" Maryland v. Louisiana, 451 U.S. 725, 754 (1981). Nevertheless, the state's right to tax interstate commerce is limited. Two tests have been employed by the United States Supreme Court in considering the constitutionality of taxes affecting interstate commerce. The parties disagree as to which test should be applied. To sur vive a Commerce Clause challenge under either test, the state-imposed tax must not discriminate against interstate commerce. We need not decide which test applies as Act 87 fails under the discrimination prong of both.\\nAs indicated by the Supreme Court:\\nOne of the fundamental principles of Commerce Clause jurisprudence is that no State, consistent with the Commerce Clause, may \\\"impose a tax which discriminates against interstate commerce . by providing a direct commercial advantage to local business.\\\" Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 458 (1959). See Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318, 329 (1977). This antidiscrimination principle \\\"follows inexorably from the basic purpose of the Clause\\\" to prohibit the multiplication of preferential trade areas destructive of the free commerce anticipated by the Constitution. Boston Stock Exchange, supra. See Dean Milk Co. v. Madison, 340 U.S. 349, 356 (1951).\\nMaryland v. Louisiana, supra, 451 U.S. at 754.\\nThe defendants apparently concede that all members of the plaintiff class are engaged in interstate commerce. On the other hand, for the purpose of this case, Vermont-registered trucks constitute an element of local or intrastate commerce. Given this fact, we conclude Act 87 on its face discriminates against interstate commerce and violates the Commerce Clause. In American Trucking Associations, Inc. v. Quinn, 437 A.2d 623, 627 (Me. 1981), a statute requiring foreign truckers in Maine to pay much higher permit fees than Maine truckers was ruled facially discriminatory and violative of the Commerce Clause. Similarly, under Act 87 foreign-registered truckers must pay the fees while Vermont-registered truckers and their customers are protected from the impact of the tax. Members of the plaintiff class are at a competitive disadvantage. It is true that the members of the plaintiff class need pay neither Vermont registration fees, 23 V.S.A. \\u00a7 411, nor the sales and use taxes, 32 V.S.A. \\u00a7 8903. They need not pay these fees and taxes only because they have registered their vehicles, and therefore paid their registration fees, in their home state. Having thus waived the right to impose either the sales and use tax or the registration fee upon foreign-registered trucks, Vermont may not point to those taxes as complementary for the purpose of saving an otherwise discriminatory tax. As the Maine Supreme Judicial Court said:\\nWhen an owner or operator of a Maine-based truck pays his registration fee, he purchases the right to operate in any of 46 states; the highway use fee set by section 246-A, by contrast, buys for the foreign-based truck only the right to use Maine roads. In a practical economic sense, reciprocity represents an indirect contribution by foreign-based trucks to the treasury of the State of Maine; the agreement of their home states not to tax Maine-based trucks leaves Maine free to collect more than it otherwise could from its own truckers.\\nAmerican Trucking Associations, Inc. v. Quinn, supra, 437 A.2d at 627.\\nWhen the members of the plaintiff class registered in their home states they purchased the right to operate in states like Vermont with registration reciprocity similar to that embodied in 23 V.S.A. \\u00a7 411. Just like the plaintiffs in Maine, the members of the plaintiff class have already indirectly contributed to Vermont's treasury by virtue of this reciprocity. Thus, the sales and use taxes and the registration fees imposed on Vermont truckers are not complementary to and do not save the facially discriminatory provisions of Act 87.\\nPlaintiffs' claim for monetary relief is controlled by our opinion in American Trucking Associations, Inc. v. Conway, 146 Vt. 579, 508 A.2d 408 (1986), in which we held that sovereign immunity barred a similar claim. Accordingly, we deny this claim for monetary relief.\\nReversed.\\nThe members of the plaintiff class were defined by court order as \\\"all interstate motor carriers primarily registered outside of the State of Vermont and now or during pendency of this action subject to payment of fees prescribed by 23 V.S.A. \\u00a7 415, \\u00a7 415a and \\u00a7 417.\\\"\\nThe proper test, according to plaintiffs, is the one announced in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 287 (1977):\\n1. Is the taxed activity sufficiently connected to the state to justify a tax?\\n2. Is the tax fairly related to benefits provided the taxpayer?\\n3. Does the tax discriminate against interstate commerce?\\n4. Is the tax fairly apportioned?\\nOn the other hand, defendants contend the proper test is the one employed in a pre-Complete Auto line of cases known as \\\"flat fee\\\" cases. See, e.g., Capitol Greyhound Lines v. Brice, 339 U.S. 542 (1950); Aero Mayflower Transit Co. v. Board of Railroad Commissioners, 332 U.S. 495 (1947); Aero Mayflower Transit Co. v. Georgia Public Service Commission, 295 U.S. 285 (1935).\\nAny motor vehicle owned by a nonresident shall be considered registered in Vermont if the nonresident owner has complied with the laws of his home state. This exemption only applies to the extent that the laws of the nonresident's home state grant similar exemptions to Vermont-registered motor vehicle owners and operators. Since the members of the plaintiff class have all complied with their home state registration requirements, they need not register in Vermont unless their home states do not grant similar privileges to Vermonters.\\nMembers of the plaintiff class need not pay the purchase and use tax because they have never registered their vehicles in the State of Vermont.\"}"
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+"{\"id\": \"4756964\", \"name\": \"Mary G. DeKoeyer v. Jack H. DeKoeyer\", \"name_abbreviation\": \"DeKoeyer v. DeKoeyer\", \"decision_date\": \"1986-01-17\", \"docket_number\": \"No. 83-447\", \"first_page\": \"493\", \"last_page\": \"498\", \"citations\": \"146 Vt. 493\", \"volume\": \"146\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-11T01:13:58.859122+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Allen, C.J., Hill, Underwood, Peck and Gibson, JJ.\", \"parties\": \"Mary G. DeKoeyer v. Jack H. DeKoeyer\", \"head_matter\": \"Mary G. DeKoeyer v. Jack H. DeKoeyer\\n[507 A.2d 962]\\nNo. 83-447\\nPresent: Allen, C.J., Hill, Underwood, Peck and Gibson, JJ.\\nOpinion Filed January 17, 1986\\nMotion for Reargument Denied as Untimely Filed February 19, 1986\\nAlexandra N. Thayer, East Hardwick, for Plaintiff-Appellee.\\nDuncan Frey Kilmartin and Peter E. Yeager of Rexford & Kilmartin, Newport, for Defendant-Appellant.\", \"word_count\": \"1469\", \"char_count\": \"8985\", \"text\": \"Peck, J.\\nThis is an appeal by defendant from an order denying his motion to modify the 1979 final order and decree for divorce from plaintiff. Defendant had sought, through his motion, to reduce or eliminate his $35.00 per week alimony obligation.\\nOn appeal defendant claims the court erred by excluding evidence and in failing to apply the criteria enumerated in 15 V.S.A. \\u00a7 752. Further, defendant challenges the lower court's findings; claims the court abused its discretion; and argues, against \\\"permanent\\\" maintenance orders, on policy grounds. We affirm.\\nPlaintiff requested an award of attorney fees and costs in the lower court. As that court did not rule on her request, she asks this Court to remand the case for hearing on the award. We remand for this limited purpose only.\\nOn January 3, 1979, the Caledonia Superior Court granted the parties a divorce and ordered the defendant to pay the plaintiff $35.00 per week designated as \\\"permanent alimony until such time as she shall die or remarry.\\\" This provision of the divorce judgment order was identical to a stipulation signed by both parties and filed with the court on December 15, 1978.\\nOn June 4, 1982, defendant filed a motion for modification asking the lower court, among other things, to reduce or eliminate the $35.00 per week permanent \\u00e1limony. After a hearing the court found that at the time of the original decree defendant had worked as a store manager for about 10 years. After the decree defendant stopped working when his employer cut back on employees; it is not clear from the findings whether defendant quit his position or was fired. Thereafter, defendant went into business for himself, drawing a gross salary of $250.00 per week at the time of the hearing. Plaintiff, who had been employed at the time of the divorce decree, currently does housekeeping work in Florida. The court found that both parties had experienced health problems since the divorce. Defendant had a heart attack in February 1979 and convalesced for about three months. Plaintiff's health had declined since 1979, and she was hospitalized for three days in 1982; she carries no medical insurance. The court concluded \\\"that there has not been a substantial change of circumstances that is real, substantial, and unanticipated to the extent that would warrant a modification of the Judgment of Divorce with respect to permanent alimony.\\\"\\nI.\\nDefendant's first claim on appeal is that the court erred in excluding evidence of his expectations, at the time of the divorce, that plaintiff would enhance her economic well-being through employment. Defendant correctly asserts that, under 15 V.S.A. \\u00a7 758, he needed to show a real, substantial and unanticipated change of circumstances to convince the court to modify the divorce judgment. Defendant argues that by denying him the opportunity to introduce evidence of his expectations at the time of the divorce, the court excluded relevant evidence of anticipated circumstances and therefore the court could not adequately assess whether any changed circumstance was unanticipated. We disagree. What must be shown is an actual change in circumstances, not a failure to change according to the defendant's alleged expectations. The trial court properly excluded evidence of defendant's expectations of changes in the plaintiff's circumstances as irrelevant. See 15 V.S.A. \\u00a7 758; V.R.E. 402.\\nDefendant also claims the court erred in excluding evidence of the pre-divorce social and economic history of the parties, evidence of interim changes not in effect at the time of the hearing, and evidence as to defendant's expectation regarding his own future financial condition. The court properly excluded all this evidence. The focus of the court's inquiry was whether a substantial change in circumstances existed at the time of the hearing. The circumstances of the parties prior to the divorce and any interim changes that were not in existence at the hearing were irrelevant. Likewise irrelevant was defendant's speculation regarding his future economic condition; only his condition contemporaneous with the hearing and his condition at the time of the divorce were relevant. This irrelevant evidence was properly excluded. V.R.E. 402.\\nII.\\nDefendant claims next that the court erred in failing to apply the criteria listed in 15 V.S.A. \\u00a7 752 when considering defendant's motion to modify under \\u00a7 758. We disagree. Section 752 provides those factors the court must consider in making its initial determination whether to order maintenance. While the factors listed in \\u00a7 752 could prove helpful to a court considering a motion to modify, the court in our case need only assess the parties' current circumstances in light of their circumstances at the time of the divorce. If those circumstances changed in any way which was \\\"real, substantial and unanticipated,\\\" the court could modify the judgment as to maintenance. The court could use the factors listed in \\u00a7 752 when it evaluates any changed circumstance. See Bullard v. Bullard, 144 Vt. 627, 629, 481 A.2d 1049, 1051 (1984). In this case, the court considered the financial reserves and the health of the parties in assessing their circumstances. But the court did not err when it did not indicate that it considered all the \\u00a7 752 factors.\\nIII.\\nDefendant next challenges the court's findings. Defendant claims the court erred in failing to find that \\\"unconscionable advantage\\\" had been taken of defendant at the time of the stipulation agreement and divorce decree. If defendant could have shown such unconscionable advantage, it could arguably have supported a modification to the order. Nevertheless, \\\"[t]his argument is raised for the first time on appeal. We will not reverse a lower court when a party's failure to raise some matter below denied the court an opportunity to consider it.\\\" Duke v. Duke, 140 Vt. 543, 545, 442 A.2d 460, 462 (1982).\\nDefendant continues his attack on the court's findings, claiming they fail to indicate the method or standard by which the lower court made its decision to deny the motion to modify. New England Power Co. v. Town of Barnet, 134 Vt. 498, 503, 367 A.2d 1363, 1366 (1976). As defendant points out, we held in Barnet, a property tax appraisal case, that the trial court's findings failed \\\" 'to make a clear statement to the parties, and to this Court. . . of what was decided and how the decision was reached.' \\\" Id. In the instant case there was no such failure; the standard employed is clear. The court decided that the circumstances of the parties had not changed in a real and substantial and unanticipated way.\\nDefendant raises other challenges to the court's findings. We have concluded that defendant has failed to meet his burden of demonstrating that the court's findings are clearly erroneous. V.R.C.P. 52(a); Vieweger v. Clark, 144 Vt. 630, 481 A.2d 1268 (1984). We will not set aside the findings.\\nIV.\\nDefendant next claims the lower court abused its discretion in not ordering a modification in light of our opinion in Ellis v. Ellis, 135 Vt. 83, 370 A.2d 200 (1977). But, as defendant concedes, Ellis stands for the \\\"broad limits of judicial discretion\\\" in cases like the one before us. Id. at 85, 370 A.2d at 201. \\\"The result reached below does not go beyond the limits of discretion.\\\" Id.\\nV.\\nFinally, defendant argues against the imposition of permanent maintenance on policy grounds. The 1979 divorce decree in this case designated the $35.00 per week alimony as \\\"permanent,\\\" and ordered defendant to pay plaintiff until she remarried of died.\\nContrary to defendant's position, our maintenance statute specifically provides that a court may order either rehabilitative or permanent maintenance. 15 V.S.A. \\u00a7 752(a). This is a clear enunciation of public policy by the Legislature, and the plain meaning of the statute controls. Shetland Properties, Inc. v. Town of Poultney, 145 Vt. 189, 194, 484 A.2d 929, 932 (1984). Defendant's claim is without merit.\\nVI.\\nPlaintiff asks this Court to remand the case to the lower court for the limited purpose of considering an award of her attorney's fees and costs incurred at the trial level. On April 12,' 1983, plaintiff filed with the lower court a request for an award of fees and costs. See Bibens v. Bibens, 144 Vt. 287, 288-89, 476 A.2d 134, 135 (1984). A review of the record indicates the lower court failed to rule on the request. We remand the instant case to the lower court for consideration of plaintiffs request.\\nAffirmed; remanded for the limited purpose of considering plaintiff's request for an award of attorney's fees and costs.\"}"
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+"{\"id\": \"4760499\", \"name\": \"State of Vermont v. Philip A. Letourneau and Yvon Fortin\", \"name_abbreviation\": \"State v. Letourneau\", \"decision_date\": \"1985-11-08\", \"docket_number\": \"No. 84-177\", \"first_page\": \"366\", \"last_page\": \"371\", \"citations\": \"146 Vt. 366\", \"volume\": \"146\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-11T01:13:58.859122+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Allen, C.J., Hill, Underwood, Peck and Gibson, JJ.\", \"parties\": \"State of Vermont v. Philip A. Letourneau and Yvon Fortin\", \"head_matter\": \"State of Vermont v. Philip A. Letourneau and Yvon Fortin\\n[503 A.2d 553]\\nNo. 84-177\\nPresent: Allen, C.J., Hill, Underwood, Peck and Gibson, JJ.\\nOpinion Filed November 8, 1985\\nJeffrey L. Amestoy, Attorney General, and John H. Chase, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.\\nGregory P. Howe, Newport, and Michael Rose, St. Albans (On the Brief), for Defendants-Appellants.\", \"word_count\": \"1335\", \"char_count\": \"8002\", \"text\": \"Hill, J.\\nThe defendants, Philip A. Letourneau and Yvon For-tin, appeal from their conviction for illegal possession of moosemeat in violation of 10 V.S.A. App. \\u00a7 31(f). We affirm.\\nOn November 1, 1982, search warrants were issued authorizing state game wardens to search the defendants' premises for \\\"parts of a moose illegally taken,\\\" and for \\\"the remains of a moose [carcass buried] in the ground.\\\" Packages of meat were recovered from the freezers of both defendants' residences as a result of this search. Analysis of the packages revealed that they contained moosemeat. The defendants were then charged with, and after a joint trial by jury, convicted of possessing moose in violation of 10 V.S.A. \\u00a7 4082 and App. \\u00a7 31(f).\\nTitle 10 V.S.A. \\u00a7 4082 authorizes the Vermont Fish and Wildlife Board (Board) to promulgate rules for \\\"the regulation of fish and wild game and the taking thereof except as otherwise specifically provided by law.\\\" Pursuant to this authorization, 10 V.S.A. App. \\u00a7 31 sets forth hunting seasons and bag limits for a variety of wild quadrupeds, including moose. According to the regulation, the game animals specified \\\"may be taken only during the period specified . . . not in excess of the numbers specified . . . and may be possessed only to the numbers specified as possession limit. . . .\\\" 10 V.S.A. App. \\u00a7 31. Regarding moose, the regulation states only that there is \\\"[n]o open season.\\\" 10 V.S.A. App. \\u00a7 31(f).\\nDefendants argue that because another statute, 10 V.S.A. \\u00a7 4785, permits the importation and subsequent possession of moose in Vermont provided a permit to possess such is obtained, then mere possession is not illegal and it is incumbent upon the State to prove as an element of the offense that the defendants did not have a permit to possess moose. The Board's regulation, however, clearly states that the game listed, (which includes moose) \\\"may be possessed only to the numbers specified as possession limit.\\\" 10 V.S.A. App. \\u00a7 31. There being no open season for the hunting of moose, the possession limit is zero, 10 V.S.A, App. \\u00a7 31(f), and the possession of moose in Vermont is in violation of this regulation.\\nBy statute, moose taken from outside Vermont may be lawfully possessed provided the possessor has obtained a permit for such. 10 V.S.A. \\u00a7 4785. The effect of 10 V.S.A. \\u00a7 4785 on 10 V.S.A. App. \\u00a7 31(f), however, is to provide an exception to the general rule, prohibiting the possession of moose. Merely because a limited statutory exception exists to a regulation does not make the nonexistence of the facts which would make the exception applicable an element of the offense. Instead, the exception set forth in 10 V.S.A. \\u00a7 4785 is in the nature of an affirmative defense which the defendant might use to show that although his possession was in violation of the regulation, it was not unlawful. See W. LaFave & A. Scott, Criminal Law \\u00a7 21, at 154 (1972) (citing King v. Turner, 105 Eng. Rep. 1026 (K.B. 1816)) (claims of exemption from a statutory prohibition which are based on an exception to the statute are often construed as requiring defendant to come forward with proof of exculpatory fact).\\nThe defendants also claim that the trial court's instruction to the jury on the issue of possession was erroneous. The court instructed the jury as follows:\\nPossession is defined, as it relates to Fish and Game statutes, to be actual or constructive possession or control over things referred to in the statute..\\nAs this statutory definition expresses, possession is not limited to manual touch, actual possession or personal custody. Thus, if a person deposits unlawful property in a place of concealment, even on his own premises or otherwise, he nevertheless, in law, under said definition, would have possession of the property, even though he may be absent from the place he was using for its concealment.\\nIt is for you to say on all the evidence beyond a reasonable doubt whether either or both defendants had possession of moose meat, in violation of the law; and that possession does not need to be exclusive possession, but might be joint.\\nAs this instruction is in accord with both statutory and case law on the subject, we find no error in the court's charge. State v. Ballou, 127 Vt. 1, 5-7, 238 A.2d 658, 662-63 (1968); 10 V.S.A. \\u00a7 4001(19).\\nThe defendants also contend that there was insufficient evidence presented at trial for the jury to find, beyond a reasonable doubt, that the defendants were in possession of the meat found at their respective residences. The defendants, however, have failed to preserve this claim for appellate review. Although the defendants moved for a judgment of acquittal at the conclusion of the State's case, they failed to renew this motion at the close of all the evidence or after the verdict was rendered. V.R.Cr.P. 29.\\n[A]bsent a motion for judgment of acquittal at the close of all the evidence, or after verdict, the issue of the sufficiency of the evidence as a whole to support the verdict remains unpresented to the trial court for consideration. Never having been presented for determination, this issue is not preserved for appellate review.\\nState v. Bressette, 136 Vt. 315, 317, 388 A.2d 395, 396 (1978).\\nThe defendants' final claim is that one of the experts who testified at the trial was not properly qualified and the trial court should have excluded her testimony. A review of the transcript reveals that the expert gave testimony concerning her education and training and was cross-examined by the state's attorney concerning her qualifications. The expert also testified, over defendants' objection, that she had \\\"testified as an expert witness in six different Maine courts.\\\" Defendants claim it was error for the court to consider whether the expert had testified as an expert in other cases in qualifying her as an expert in the instant case. See Fire Association of Philadelphia v. Merchants' National Bank, 52 Vt. 83, 86 (1879) (error for court to determine without any evidence before it that \\\"witnesses offered were competent to testify as experts, because they had . . . been used as experts in [another case], in regard to the same subject, and claimed to have acquired skill by their experience above common men.\\\"). Unlike the situation in Fire Association of Philadelphia, supra, there was ample evidence presented in this case for the court to determine that the person in question was qualified to testify as an expert witness. We thus find no error in the court's failure to exclude testimony that the witness had testified as an expert in other proceedings.\\nAffirmed.\"}"
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+"{\"id\": \"4792483\", \"name\": \"George Costa v. Volkswagen of America\", \"name_abbreviation\": \"Costa v. Volkswagen of America\", \"decision_date\": \"1988-07-15\", \"docket_number\": \"No. 85-306\", \"first_page\": \"213\", \"last_page\": \"222\", \"citations\": \"150 Vt. 213\", \"volume\": \"150\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T17:53:01.148853+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Allen, C.J., Peck, Dooley and Mahady, JJ., and Barney, C.J. (Ret.), Specially Assigned\", \"parties\": \"George Costa v. Volkswagen of America\", \"head_matter\": \"George Costa v. Volkswagen of America\\n[551 A.2d 1196]\\nNo. 85-306\\nPresent: Allen, C.J., Peck, Dooley and Mahady, JJ., and Barney, C.J. (Ret.), Specially Assigned\\nOpinion Filed July 15, 1988\\nPaterson, Walke & Pratt, P.C, Montpelier, for Plaintiff-Appellant.\\nPlante, Richards, Hanley & Gerety, P.C., White River Junction, for Defendant-Appellee.\", \"word_count\": \"3408\", \"char_count\": \"20692\", \"text\": \"Dooley, J.\\nThis is a breach of warranty case that has eluded resolution for eight years. During this time it has been tried twice \\u2014 once to a jury and once to court \\u2014 with different results, and has been the subject of numerous motions. Plaintiff-appellant \\u2014 who prevailed at the first trial but lost at the second \\u2014 challenges the order of the Lamoille Superior Court entering judgment for defendant, and also appeals the court's earlier order granting defendant's motion for a new trial. We reverse, in part, the new trial order and remand the cause, vacating the subsequent orders of the trial court.\\nIn October of 1979, plaintiff, George Costa, purchased a new 1979 Audi 5000 from Hyannis Porsche-Audi, Inc., a Hyannis, Massachusetts automobile dealership franchised by defendant, Volkswagen of America (VWoA). The purchase price of the vehicle was $11,530. In connection with the purchase, VWoA expressly warranted the vehicle to be free of defects in material and workmanship for twelve months, regardless of milage. From the time of purchase until July 24, 1980, plaintiff experienced numerous and chronic mechanical and cosmetic problems with the automobile. During this period, the vehicle was serviced extensively by Hyannis Porsche-Audi, Inc. and by Crossway Motors, an authorized Audi dealership located in Barre, Vermont.\\nOn July 12, 1980 \\u2014 after having had possession of the vehicle since May 12, 1980 for the purpose of repair \\u2014 a representative of Crossway Motors returned the automobile to plaintiff in Mashpee, Massachusetts, where he was staying at the time. On driving the vehicle, plaintiff noticed that a number of defects \\u2014 of which he had complained \\u2014 persisted, including problems with the brakes, steering, transmission, and air conditioning. On July 24, 1980 plaintiff delivered the vehicle, and a letter evincing his intent to revoke acceptance, to the Massachusetts dealership. A copy of the letter revoking acceptance was also forwarded to defendant, and the instant action \\u2014 for breach of warranty \\u2014 followed. In his complaint, plaintiff relied on the Magnuson-Moss Warranty Act, 15 U.S.C. \\u00a7 2301-2312, as well as the provisions of Article 2 of the Uniform Commercial Code as adopted in Vermont and Massachusetts.\\nThe matter was tried to a jury, which \\u2014 after a four-day trial \\u2014 returned a verdict for plaintiff. The jury's verdict found defendant liable for breach of warranty and assessed damages in the amount of $13,000. A handwritten note on the face of the verdict form stated that: \\\"The Jury's verdict for the Plaintiff is with the stipulation that the title to the 1979 Audi 5000 be awarded to Volkswagen of America, Inc.\\\"\\nAfter the jury was discharged, plaintiff \\u2014 who had forcefully objected to the court's instructions on damages \\u2014 filed a motion for corrected verdict seeking to have the damages award in creased from $13,000 to $15,586.03. Plaintiff also filed a motion for attorney's fees. Defendant, on the other hand, filed a motion for judgment notwithstanding the verdict (judgment n.o.v.) and, in the alternative, a motion for a new trial. In the new trial motion, defendant argued that the jury had gone beyond the charge in requiring the return of the vehicle and had disregarded the instruction on measure of damages. On November 22, 1983, the court denied plaintiff's motion for modification of the verdict and attorney's fees. The court also denied defendant's motion for judgment n.o.v. However, defendant's motion for a new trial was granted \\\"on the ground that the verdict rendered by the jury is based upon a theory of rescission which is contrary to the instructions of the court on the issue of damages, as shown by the evidence.\\\" Plaintiff sought permission in both the trial court and this Court to take an interlocutory appeal from the November 22 order, see V.R.A.P. 5(b), which requests were denied.\\nThe case again came to trial on December 18,1984. The parties waived trial by jury and submitted the case to the court. After a four-day trial, the court issued findings and conclusions, and awarded judgment to the defendant. The court found that the vehicle was not defective when the plaintiff attempted to revoke acceptance, that the plaintiff could not pursue an implied warranty claim against defendant because of the absence of privity between plaintiff and defendant, and that revocation of acceptance was not available as against defendant VWoA.\\nPlaintiff raises numerous issues on appeal, particularly with respect to the second trial and the holding of the trial court after the second trial. Plaintiff also argues that the grant of the new trial motion after the first trial was error. We agree with plaintiff on this point, in part, and accordingly do not reach the claims with respect to the second trial.\\nThe decision of whether or not to grant a motion for new trial pursuant to V.R.C.P. 59(a) is vested in the sound discretion of the trial court, and will only be reversed where there has been an abuse of discretion. See Hoague v. Cota, 140 Vt. 588, 592, 442 A.2d 1282, 1284 (1982). As such, \\\"[i]n reviewing the trial court's disposition of a motion for a new trial, this Court is bound to accord to the ruling all possible presumptive support.\\\" Weeks v. Burnor, 132 Vt. 603, 609, 326 A.2d 138, 141 (1974). The deference we afford to the discretion of the trial court, however, is not without limit. In Hardy v. Berisha, 144 Vt. 130, 133-34, 472 A.2d 93, 95 (1984), we stressed that:\\nVermont law requires a judge, who is asked to grant a new trial, to weigh the evidence in the light most favorable to the verdict. This is because it is the protected duty of the jury to render a verdict, and a judge may not disturb that verdict unless it is clearly wrong.\\n(citations omitted).\\nThus, while we must give presumptive support to the ruling of the trial judge, the trial judge must likewise afford a similar presumption in favor of the verdict of the jury. See McKenna v. May, 134 Vt. 145, 148, 353 A.2d 359, 361 (1976). Abuse of discretion in deciding a motion for a new trial will be found \\\"when the trial court has entirely withheld its discretion or where the exercise of its discretion was for clearly untenable reasons or to an extent that it is clearly untenable.\\\" Lent v. Huntoon, 143 Vt. 539, 552, 470 A.2d 1162, 1171 (1983).\\nTo fully analyze plaintiff's position on the new trial motion, we must start with the jury charge which the trial court found was not followed. In essence, the jury charge relevant to liability and damages instructed that:\\n[I]f circumstances caused Volkswagon's expressed warranty of repair or replacement of defected parts to fail of its essential purpose, which would be to put the automobile in a defect-free condition, and if the nonconformity of the automobile with the implied warranty of merchantability substantially impaired the value of the automobile to Mr. Costa, and if he accepted it without discovery of its nonconformity as long as its acceptance was reasonably induced ei ther by difficulty of discovery before acceptance or by the seller's assurances, he has certain rights.\\nIf you should determine that there has been a breach of warranty, you should find that Mr. Costa had the right within a reasonable time after discovering the nonconformity to revoke his acceptance. . . . [A] buyer is permitted to revoke his acceptance of a motor vehicle where defects in such vehicle substantially impair its value to him. . . .\\nIf, and only if, you find that the Defendant Volkswagen of America is liable to plaintiff and that the goods were defective; that there was a breach of expressed or implied warranties, then you must turn to the question of damages.\\nYou are instructed that the measure of damages for breach of warranty is the difference at the time and place of acceptance of the goods between the value of the goods accepted and the value they would have had if they had been warranted . . . plus any incidental or consequential damages.\\nThe jury was also instructed that \\u2014 in order to find VWoA liable for breach of warranty \\u2014 it had to find that in selling the automobile, and servicing it pursuant to VWoA's express warranty, Hyannis Porsche-Audi was acting for the benefit of and under the consent and general direction of Volkswagen of America (i.e., it was necessary that there was an agency relationship between the two).\\nIt is important to emphasize that the issue before this Court is not whether the charge on revocation of acceptance was erroneous. At the charge conference defendant did not challenge the instructions regarding revocation of acceptance, nor did defendant object to those specific instructions at the time they were given. Moreover, at oral argument before this Court defendant conceded that the trial court's charge on revocation of acceptance was consistent with both the law applied at trial and plaintiff's theory of the appropriate remedy. By failing to make an effective objection to this part of the charge, appellee waived any challenges \\u2014 of which none are apparent \\u2014 regarding the appropriateness of the remedy of revocation of acceptance or the instructions thereon. See Poulin v. Ford Motor Co., 147 Vt. 120, 126-27, 513 A.2d 1168, 1173 (1986). This leaves three theories on which the court could have rejected the jury verdict: (1) the return condition imposed by the jury shows they misunderstood the charge on liability; (2) the return condition taints the jury verdict even if it is not inconsistent with the law; and (3) the inconsistency between the charge on damages and the jury's verdict requires a new trial on both liability and damages.\\nWe find the first ground to be wholly without merit. Defendant is attempting to dissect the verdict and apply a portion of it to an isolated part of the charge exclusive of the remaining instructions. The trial court clearly instructed the jury that if it found a breach of warranty by defendant, and a proper tender of the vehicle by plaintiff to defendant within a reasonable time from the discovery of the defects causing the breach, then it should find that plaintiff had properly revoked acceptance. Only after such findings did the instructions permit consideration of damages.\\nThe jury's mandate \\u2014 written on the face of the verdict \\u2014 is entirely consistent with the court's instructions on revocation of acceptance. Proper revocation of acceptance necessarily includes return of the defective goods. See, e.g., Morrisville Commission Sales, Inc. v. Harris, 142 Vt. 9, 10, 451 A.2d 1092, 1092-93 (1982) (return of toothless cow was incident to proper revocation of acceptance); see also 9A V.S.A. \\u00a7 2-608(3) (buyer has the same duties with regard to goods of which acceptance has been revoked, as to goods that have been rejected); 9A V.S.A. \\u00a7 2-602(2)(b) (buyer must hold goods \\\"with reasonable care at the seller's disposition for a time sufficient to permit the seller to remove them\\\"); J. White & R. Summers, Uniform Commercial Code \\u00a7 8-1, at 293 (2d ed. 1980) (Revocation of acceptance is a . . . refusal on the buyer's part to keep goods . \\\").\\nWe also reject the argument that the jury stipulation tainted its verdict such that it cannot stand. The stipulation was no more than surplus language describing the status quo ante inherent in revocation of acceptance situations. The stipulation did not prejudice defendant in any way. The jury's notation reflects the necessary result of its conclusion in conformity with the court's instructions; it does not affect \\u2014 and certainly does not invalidate \\u2014 the verdict. See, e.g., Bailey v. Central Vermont Ry., 113 Vt. 433, 440-41, 35 A.2d 365, 370 (1943) (apportionment by jury of total damages among several plaintiffs in a negligence case \\u2014 although unwarranted \\u2014 was \\\"surplusage\\\" and could be disregarded without affecting the validity of the general verdict where no prejudice was shown); see also Barrow v. Talbott, 417 N.E.2d 917, 921 (Ind. Ct. App. 1981) (\\\"[W]hen a jury attempts to interpolate something in a verdict about which the jury has no concern, such interpolated matter is mere surplusage and not fatal to a judgment based on that verdict.\\\"); Fjerstad v. Sioux Valley Hospital, 291 N.W.2d 786, 788 (S.D. 1980) (language included by jury \\u2014 not in conflict with general verdict \\u2014 may be discarded as extraneous); Hollen v. Linger, 151 W. Va. 255, 257, 151 S.E.2d 330, 332 (1966) (surplus recommendation of jury may be disregarded as not part of verdict).\\nAs we have determined the stipulation of the jury, in the instant case, to be consistent with the court's instructions on revocation of acceptance, there is no indication that the verdict was clearly wrong. Thus, we find the order granting a new trial \\u2014 at least so far as it encompassed the issue of liability \\u2014 to be untenable, and as such an abuse of discretion.\\nThis conclusion, however, does not settle the third issue relating to damages. There is no question that the trial court improperly charged the jury on the issue of damages. When acceptance is revoked, the goal is to establish the status quo ante. J. White & R. Summers, Uniform Commercial Code \\u00a7 8-3. This entails, inter alia, a return of the defective product, 9A V.S.A. \\u00a7 2-602(2)(b); a refund of the purchase price, 9A V.S.A. \\u00a7 2-711(1); and payment by the breaching party of incidental and consequential damages, 9A V.S.A. \\u00a7 2-715, incurred by the purchaser. The trial court, however, charged the jury on acceptance damages, which are designed to compensate a purchaser \\u2014 keeping defective goods \\u2014 for the difference in value between what he or she received against what had been warranted. See 9A V.S.A. \\u00a7 2-714. Acceptance damages are not applicable where acceptance has been revoked. For this reason, the cause must be remanded for a determination of damages consistent with a proper revocation of acceptance.\\nThe error in the damage charge does not, however, require a new trial on liability. Where the issue of liability has been fully settled by the jury given the facts presented, as well as the court's instructions on breach of warranty, a full remand is not necessary. See Bessette v. Humiston, 121 Vt. 325, 330, 157 A.2d 468, 472 (1960). In Bessette, this Court observed that a verdict which \\u2014 aside from an inappropriate formulation of damages \\u2014 does not otherwise demonstrate compromise by the jury, will be affirmed as to liability and remanded only on the issue of damages. Id.; see also Marshal v. Dalton Paper Mills, 82 Vt. 489, 505, 74 A. 108, 113 (1909) (\\\"[T]o put the plaintiff to the expense of a new trial of the whole case, when all questions involved have been correctly tried and, so far as appears rightly determined, except the one question of damages, would be an injustice to him.\\\"). In the instant case, as in Bessette, \\\"a review of the full case satisfies us that the issue of liability was adjudicated fairly on substantial evidence and should not be disturbed. As the error at the trial reached only the question of damages, retrial should be confined to that issue alone.\\\" Bessette, 121 Vt. at 330, 157 A.2d at 472 (citation omitted).\\nBecause none of the three grounds to reject the jury verdict as to liability are valid, we must conclude that the new trial was granted by the trial court for \\\"clearly untenable reasons.\\\" Lent, 143 Vt. at 552, 470 A.2d at 1171. Accordingly, the order for a new trial on liability must be reversed. Retrial must be confined to damages.\\nOn remand, plaintiff shall be entitled to a return of the purchase price of the automobile, together with incidental and consequential damages and interest from the date of purchase. Additionally, plaintiff shall recover costs in both courts and, pursuant to the Magnuson-Moss Warranty Act, 15 U.S.C. \\u00a7 2310(d)(2), attorney's fees incurred during the litigation below and on appeal.\\nThe order of the Lamoille Superior Court, dated November 22, 1983, to the extent that it granted defendant's motion for a new trial on the issue of defendant's liability and denied plaintiff's motion for attorney's fees, is reversed; in all other respects the order is affirmed. The orders of the Lamoille Superior Court, dated May 29, 1985 and June 7, 1985 are vacated. The trial court is directed to enter judgment on the jury verdict rendered June 20, 1983 insofar as such verdict determined liability of defendant. The cause is remanded for the purpose of determining damages based on a proper revocation of acceptance, and such damages shall include the purchase price of the vehicle along with incidental and consequential damages; interest accrued from the date of purchase. The court shall also award reasonable attorney's fees incurred by plaintiff during all stages of this litigation. Costs to plaintiff.\\nAmong the issues argued by the parties is a conflict of laws question. Essentially, the relevant provisions of the Massachusetts and Vermont adaptations of the Uniform Commercial Code \\u2014 relating to warranties and remedies \\u2014 are the same. Compare Mass. Gen. Laws Ann. ch. 106 \\u00a7 2-313; 2-314; 2-608; 2-711 with 9A V.S.A. \\u00a7 2-313; 2-314; 2-608; 2-711. However, Massachusetts has expressly eliminated the requirement of privity in actions between manufacturers or suppliers and the ultimate purchasers of their products. Mass. Gen. Laws Ann. ch. 106 \\u00a7 2-318. Section 2-318 of the Vermont enactment of the U.C.C. does not contain the same express elimination of the privity requirement. See 9A V.S.A. \\u00a7 2-318.\\nDefendant argues that Vermont, not Massachusetts, law should apply in this case, thus permitting it the defense of lack of privity. Plaintiff naturally contends that the more favorable Massachusetts provision applies.\\nThis issue, however, need not be resolved in order to decide this case. The first trial court determined that VWoA would be bound by the warranty provisions of Article 2 if the jury could find that Hyannis Porsche-Audi had acted for the benefit, and under the control and consent, of VWoA in making the sale to plaintiff an in performing service under VWoA's written warranty. If such were the case, then the relationship between the two could be fairly' classified as that of agent and principal. See Rule v. New Hampshire-Vermont Health Service, 144 Vt. 323, 326-27, 477 A.2d 622, 624 (1984). An agency relationship between Hyannis Porsche-Audi and VWoA would be sufficient to overcome any lack of privity claim because VWoA would be recognized as the \\\"seller\\\"for the purposes of applying the Code's warranty provisions. Cf. id. Likewise, such agency permits plaintiff to revoke acceptance to VWoA (the principal) even though the vehicle had originally been accepted from Hyannis Porsche-Audi (the agent). This is because \\\"[o]ne of the incidents of the status of principal and agent is the power of the agent to subject his principal to liability for an act done in furtherance of the agency.\\\" Young v. Lamson, 121 Vt. 474, 476, 160 A.2d 873, 875 (1960); see also Restatement (Second) of Agency \\u00a7 140 comment a (1958) (\\\"principal is subject to liability upon a transaction conducted by [it's] agent\\\"). Thus established, \\\"[t]he liability of the principal can be enforced by any appropriate action whether legal or equitable . . . .\\\" \\\"Restatement (Second) of Agency \\u00a7 144 comment c.\\nIt is clear that \\u2014 based on the trial court's instructions relevant to agency (to which defendant failed to object) \\u2014 the jury could, and in fact did, find the requisite relationship between VWoA and the dealership. As such, plaintiff need not show privity of contract between himself and VWoA so long as such privity exists between him and Hyannis Porsche-Audi, of which there is no question. This is the law of the case.\\nPlaintiffs objection to the court's charge on damages was that, while the jury was instructed that it could find a proper revocation of acceptance, and \\u2014 in fact \\u2014 that such a finding was prerequisite to a consideration of damages, the damages charge was limited to acceptance damages (i.e., the difference between the value of the vehicle as warranted and the value of the vehicle as it was delivered to plaintiff). Plaintiff contends \\u2014 and appropriately so \\u2014 that following revocation of acceptance the available damages should include so much of the purchase price as has been paid along with incidental and consequential damages. Compare 9A V.S.A. \\u00a7 2-711 with 9A V.S.A. \\u00a7 2-714.\"}"
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+"{\"id\": \"4806165\", \"name\": \"Albert and Janet Breault v. Town of Jericho\", \"name_abbreviation\": \"Breault v. Town of Jericho\", \"decision_date\": \"1991-01-11\", \"docket_number\": \"No. 88-172\", \"first_page\": \"565\", \"last_page\": \"570\", \"citations\": \"155 Vt. 565\", \"volume\": \"155\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-11T02:48:26.086177+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.\", \"parties\": \"Albert and Janet Breault v. Town of Jericho\", \"head_matter\": \"Albert and Janet Breault v. Town of Jericho\\n[586 A.2d 1153]\\nNo. 88-172\\nPresent: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.\\nOpinion Filed January 11, 1991\\nKolvoord, Overton & Wilson, Essex Junction, for Defendant-Appellant.\", \"word_count\": \"1679\", \"char_count\": \"10370\", \"text\": \"Dooley, J.\\nThe Town of Jericho appeals from a decision of the State Board of Appraisers (Board) reducing the listed value of taxpayers' residence in Jericho because of \\\"economic obsolescence.\\\" We affirm.\\nTaxpayers' property is located on one acre of land on a paved road. The Town listers had appraised the land at $27,049 and the house at $70,250. Upon the taxpayers' appeal to the board of civil authority (BCA), the value of the improvements was increased, bringing the total valuation to $98,700. Taxpayers appealed to the Board, which at first found an even higher total valuation than the BCA, but arrived at a final total listed value of $92,900 after reducing its own initial figure by thirteen percent for physical depreciation and eight percent for \\\"economic obsolescence,\\\" and then reducing the product by an additional ten percent, which it found to be the Town equalization ratio.\\nThe Town does not contest the physical depreciation figure or the equalization ratio. The only issue on appeal is the Town's objection to the reduction for \\\"economic obsolescence.\\\" This term refers to loss from the upper limit of value due to \\\"factors external to the property.\\\" International Ass'n of Assessing Officers, Property Assessment Valuation 171 (1977). The Vermont State Appraisal Manual prepared by the Vermont Department of Taxes defines it as \\\"[a]ny outside influence that would adversely affect the value of the subject property,\\\" such as an \\\"adjacent gas station, shop or any undesirable .type of use.\\\" Division of Property Valuation and Review, Agency of Administration, Vermont State Appraisal Manual GI-10 (1980).\\nThe reduction for economic obsolescence was based on taxpayers' testimony that their well suffers from salt contamination from the nearby Town salt shed and that the Town landfill is visible from their property. The representative of the Town testified that no property in the Town was adjusted for economic obsolescence because it is a \\\"clean town.\\\" The Board found that \\\"the proximity of the subject to both the Town landfill and the Town salt shed constitutes an impairment in the desirability of the Breault house because of its location. Therefore, in the opinion of the Board, this situation warrants the application of a locational obsolescence factor to the subject.\\\" The Board went on to note that it had no evidence of the effect of this factor on the sale price of properties with similar negative environmental influences. It concluded, however, that an 8% factor was appropriate.\\nThe Town argues first that the finding that the landfill is visible from taxpayers' property is not supported by the evidence. The taxpayers testified that it was visible before the Board, and there was no contrary evidence. Where warranted by the evidence, the Board's finding must stand. Sondergeld v. Town of Hubbardton, 150 Vt. 565, 571, 556 A.2d 64, 68 (1988). While the Town is correct that the Board did not find that noise or odors from the landfill reached taxpayers' property, the Board did not purport to make such finding.\\nThe Board's choice of the eight percent figure for economic obsolescence is more problematical. The Board was faced with a situation where a recognized adjustment to value was necessary and the Town had failed totally to make that adjustment. However, there was no evidence from comparable properties showing the impact of the locational factors on fair market value. Indeed it is unlikely that such evidence would exist since the locational factors are unique to each property affected.\\nBoth the Town and the taxpayers offered comparables, and these showed a range of values for similar properties. The Town offered evidence of three comparable properties, sold near the date of listing, in support of its listed value. Taxpayers introduced an appraisal report, valuing their property (house and land) at $80,000 as of approximately one year earlier. They also submitted evidence of the listed values of three comparable properties.\\nThe Board accepted that the location of taxpayers' house devalued it, approximating that devaluation at eight percent. The Board also accepted the comparables offered by the Town and stated: \\\"This data would support a value for the subject of $109,700 without the application of a locational factor; with the application of... depreciation, a FMV of $103,200 is attained.\\\" In support of its method, the Board found: \\\"The neighborhoods of these comparables are more desirable than Brown Trace Road [where taxpayers' property is located].\\\" The listed value obtained by the Board lies within the range of the evidence and is higher than the listed value of each of the comparables offered by the taxpayers.\\nThe evidence presented by both the taxpayers and the Town was abundant and the Board's evaluation of the competing presentations was fully explained, unlike the myriad of cases that have come before this Court in which there has been little or no explanation of why or how the Board arrived at its decision. See id. at 570, 556 A.2d at 67 (surveying cases where Board's decision was unsupported by adequate findings). The missing piece, if there is one, is the absence of evidence of why the locational factors cause an adjustment of precisely eight percent, as found by the Board.\\nWe do not believe that this missing piece is fatal to the Board's conclusion. We have said that once the Board shows that it has considered the evidence before it and has explained the reasons for its result, its decision enjoys a presumption of validity. Id. at 571, 556 A.2d at 68. It is not necessary for an administrative body or a trial court exercising discretion to explain the precise mathematics that led to a particular decision involving a sum of money. See Coty v. Ramsey Assocs., 149 Vt. 451, 461, 546 A.2d 196, 203 (1988) (where exact computation of tort damages is difficult, award will stand unless \\\"grossly excessive\\\"); Stamper v. University Apartments, Inc., 147 Vt. 552, 556, 522 A.2d 227, 229 (1986) (disability benefits upheld where testimony \\\"reasonably supports\\\" the percentage of disability). Once the Board has shown some basis in evidence for its valuation, the appellant bears the burden of demonstrating that the exercise of discretion was clearly erroneous. See, e.g., In re Green Mountain Power Corp., 138 Vt. 213, 215, 414 A.2d 1159, 1161 (1980); Pantasote Co. v. City of Passaic, 100 N.J. 408, 413, 495 A.2d 1308, 1310 (1985). If the decision is within the range of rationality, it must be affirmed. Department of Taxes v. TriState Industrial Laundries, Inc., 138 Vt. 292, 294, 415 A.2d 216, 218 (1980).\\nAlthough we have not had occasion to apply these principles to a case exactly like this one, there are numerous precedents from other courts on point. These decisions affirm property tax valuation conclusions that fall within the range of the evidence before them, with or without a precise mathematical breakdown. For example, in North American Philips Lighting Corp. v. Board of Assessors, 392 Mass. 296, 465 N.E.2d 782 (1984), the taxpayer challenged the state appellate tax board's determination of the rental income value of the subject property. Although the board had rejected the assessors' methodology and adopted that of the taxpayer, it still considered the assessors' evidence. The court disagreed with the taxpayer's claim of error, stating:\\nHere Norelco's [taxpayer's] witness himself presented the board with comparable average square foot values ranging from a low of $1.06 to a high of $2.09. The board was not required to agree with the conclusion of Norelco's witness as to which value in this range was appropriate. The board's decision to adopt $1.90 per square foot is a proper exercise of its discretion in this area of expertise. Accordingly, even if we agree that the board had to disregard all evidence presented by the assessors' witness after rejecting the multi-tenant approach to determine the rental value of the assessed property, the board's decision is supported by the record.\\nId. at 300, 465 N.E.2d at 785-86 (emphasis added). See also Foxboro Associates v. Board of Assessors, 385 Mass. 679, 689, 433 N.E.2d 890, 897 (1982) (in the absence of specific evidence of the degree of deterioration of the property or the appropriate adjustment factor for obsolescence, factor chosen by board was within its discretion). In Federal Reserve Bank of Minneapolis v. County of Hennepin, 372 N.W.2d 699 (Minn. 1985), the taxpayer placed obsolescence at $20,000,000, while the assessor's figure was $11,000,000. The court affirmed the tax court's decision, which found a market value different from that of either party but did not detail its calculations-, stating:\\nApparently, the relator's expert regards the unique design and quality materials, such as the granite used in the office tower and plaza, as \\\"superadequacies\\\" which add to the cost of reproduction while adding nothing to market value. The tax court found the assessor's allowance for obsolescence, a matter of peculiarly subjective judgment, the more persuasive. We cannot say the tax court's acceptance of the assessor's position on obsolescence was clearly erroneous. Nor does the tax court's declination to adopt the exact market values proposed by either of the expert appraisers constitute error. The value opinions of experts are merely advisory \\u2014 evidence to be considered with the other evidence in the case \\u2014 and the finder of fact is not concluded by them.\\nId. at 701-02 (emphasis added).\\nIn choosing an economic obsolescence factor, the Board acted within its expertise, the range of the evidence, and the discretion we must accord to it.\\nAffirmed.\\nThe actual figures show that the Board applied depreciation factors that are a smaller percentage of the fair market value than the percentage figures specified by the Board. It appears that the discrepancy can be explained if we apply the percentage depreciation figures solely to the value of the house. Thus, it is possible that the adjustment was actually too small and the value should be lower. However, any mistake benefited the Town and is harmless to the Town's appeal.\"}"
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diff --git a/vt/4838741.json b/vt/4838741.json
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+"{\"id\": \"4838741\", \"name\": \"Hannelore DUTO and Heidi Duto, By Her Next Friend, Hannelore Duto v. Wallace R. MITCHELL and Central Vermont Railway, Inc.\", \"name_abbreviation\": \"Duto v. Mitchell\", \"decision_date\": \"1992-04-07\", \"docket_number\": \"No. 91-366\", \"first_page\": \"653\", \"last_page\": \"654\", \"citations\": \"158 Vt. 653\", \"volume\": \"158\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-11T02:48:26.087130+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hannelore DUTO and Heidi Duto, By Her Next Friend, Hannelore Duto v. Wallace R. MITCHELL and Central Vermont Railway, Inc.\", \"head_matter\": \"Hannelore DUTO and Heidi Duto, By Her Next Friend, Hannelore Duto v. Wallace R. MITCHELL and Central Vermont Railway, Inc.\\n[609 A.2d 988]\\nNo. 91-366\\nApril 7, 1992.\", \"word_count\": \"634\", \"char_count\": \"3860\", \"text\": \"Plaintiffs sued Central Vermont Railway, Inc. (CVR) for personal injuries arising from a ear-train collision, and CVR appeals from a Windsor Superior Court judgment in plaintiffs' favor after a jury trial. We affirm in'part and reverse in part.\\nPlaintiffs were passengers in a car that collided with the train, which was backing across a grade crossing in White River Junction in November, 1986. Plaintiffs alleged soft tissue injury and mental suffering. In September 1988, Heidi Duto consulted with Dr. Roceo Addante at the Dartmouth-Hitchcock Medical Center concerning what was then called her temporomandibular joint (TMJ) disfunction. Plaintiff Hannelore Duto testified about the medical and mental effects of the accident on her, but presented no expert medical testimony. The jury awarded Hannelore Duto $13,500 and Heidi $5,000. The present appeal followed.\\nThe trial court should have excluded the deposition of Dr. Addante. V.R.C.P. 32(a)(3) describes five circumstances under which a deposition may be used by a party for any purpose. The only relevant provision, and the one relied on by plaintiffs, is Rule 32(a)(3)(E), which states in relevant part:\\n(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds that the witness . . . (E) is absent from the hearing and the proponent of the deposition has been unable to procure the witness' attendance by process or other reasonable means. . . .\\nSee Cameron v. Burke, 153 Vt. 565, 574-75, 572 A.2d 1361, 1366-67 (1990) (citing King v. Int'l Harvester Co., 212 Va. 78, 85, 181 S.E.2d 656, 661 (1971) (construes voluntary and unexplained absence as \\\"procured\\\" absence)). To the same effect, see V.R.E. 804(a)(5); State v. Lynds, 158 Vt. 37, 605 A.2d 501 (1991) (letter and phone calls to witness that failed to secure attendance at trial insufficient to establish unavailability). In the present case there was no evidence before the court that Dr. Addante was unavailable.\\nPlaintiffs argue that defendant orally agreed to introduction of the deposition by the silence \\u2014 and hence acquiescence \\u2014 of its counsel, after being advised by plaintiffs' counsel in a telephone conversation shortly before trial of their intention to introduce the deposition. It was plaintiffs alone who were in the best position to prevent a debate at trial over oral waiver and the integrity of counsel by obtaining written agreement of defendant to admission of the deposition. Their assertion of \\\"negative deceit,\\\" i.e., silent acquiescence, on the part of defendant's counsel is little more than a concession that defendant never agreed affirmatively to waive its right to require the in-court appearance of Dr. Addante. As the deposition contained evidence that was integral to Heidi Duto's claim, the judgment in her favor must be vacated and the matter remanded for a new trial on damages.\\nHowever, there was no error as to the judgment in favor of Hannelore Duto. Defendant concedes that her testimony sufficed as to \\\"the immediate onset of headache, backache and general pain and suffering,\\\" but argues that the court should not have refused to limit damages to the time period directly after the accident. This argument boils down to a contention that the court allowed the jury to give excessive weight to this plaintiff's testimony about the effects of the accident. The court properly allowed the jury to determine the weight to be assigned to plaintiff's version of the facts. Jewell v. Dyer, 154 Vt. 486, 489, 578 A.2d 125, 127 (1990).\\nThe judgment as to Heidi Duto is reversed and the matter remanded for a new trial as to damages. The judgment in favor of Hannelore Duto is affirmed.\"}"
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+"{\"id\": \"5775414\", \"name\": \"State of Vermont v. Lennie J. Bushey\", \"name_abbreviation\": \"State v. Bushey\", \"decision_date\": \"1986-05-23\", \"docket_number\": \"No. 82-143\", \"first_page\": \"140\", \"last_page\": \"148\", \"citations\": \"147 Vt. 140\", \"volume\": \"147\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-11T00:52:47.925009+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Allen, C.J., Hill, .Underwood, Peck and Gibson, JJ.\", \"parties\": \"State of Vermont v. Lennie J. Bushey\", \"head_matter\": \"State of Vermont v. Lennie J. Bushey\\n[513 A.2d 1177]\\nNo. 82-143\\nPresent: Allen, C.J., Hill, .Underwood, Peck and Gibson, JJ.\\nOpinion Filed May 23, 1986\\nDena Monahan and Robert Andres, Chittenden County Deputy State\\u2019s Attorneys, and Jim Moran, Law Clerk (On the Brief), Burlington, for Plaintiff-Appellee.\\nSessions, Keiner & Dumont, Addison County Public Defender, Middlebury, David W. Curtis, Defender General, and William A. Nelson, Appellate Defender, Montpelier, for Defendant-Appellant.\", \"word_count\": \"2461\", \"char_count\": \"15262\", \"text\": \"Peck, J.\\nDefendant appeals his conviction for simple assault following a trial by jury in the district court. We affirm.\\nOn January 1, 1981, defendant, armed with a borrowed handgun, went to the home of his girlfriend, Holly Campbell. Defendant was upset because she had refused to see him; he feared their relationship was ending. Defendant found only Mr. and Mrs. Campbell, her parents, and her younger sister at home. After defendant forced his way into the house, a twO-hour drama ensued during which the pistol was fired three times but no one was shot; however, Mr. Campbell suffered an eye injury in a struggle for control of the pistol.\\nDefendant was charged with kidnapping and aggravated assault; the aggravated assault charge was reduced to simple assault. After a jury trial defendant was found not guilty on two counts of kidnapping and guilty on a single count of simple assault.\\nI.\\nFirst we consider a series of claims made by defendant regarding the court-ordered psychiatric evaluation. Defendant argues that the court erred when it: (1) ordered the defendant to submit to a psychiatric evaluation, threatening both defense counsel and the defendant with imprisonment for contempt if they failed to comply; and (2) allowed the State to read the entire psychiatric report. Defendant claims the court thereby violated the provisions of 13 V.S.A. \\u00a7 4816 and violated defendant's privilege against compelled self-incrimination guaranteed by the Fifth Amendment to the United States Constitution. Further, defendant claims that the judge's threat to impose contempt sanctions, in its effort to force defendant to submit to the evaluation, offends due process as guaranteed by the Fourteenth Amendment. Finally, the defendant argues the court exceeded its power under Vermont discovery rules by threatening defendant and his counsel with contempt.\\nAt arraignment, the court directed defendant to submit to a psychiatric examination as to his competency to stand trial and his sanity at the time of the alleged offense pursuant to 13 V.S.A. \\u00a7 4814. The defendant had not yet given notice of an intent to plead insanity.\\nDefendant filed a motion for a protective order asking that the court prohibit the examining psychiatrist from disclosing any details or summary of, or facts from, any conversation with defendant during the psychiatric interview. The court denied his motion. Without success defendant renewed his motion. In denying the renewed motion for a protective order, the trial court threatened both defendant and his counsel with contempt should defendant continue to refuse to comply with the order. Thereafter, defendant gave notice of his intent to raise an insanity defense and agreed to comply with the court order. The defendant was subsequently interviewed by the psychiatrist on two occasions with his attorney present.\\nThe defendant argues that 13 V.S.A. \\u00a7 4816 was violated when the court ordered him to submit to an examination of his sanity before he had raised insanity as a defense, when the details of the exam would be provided to the State. Under 13 V.S.A. \\u00a7 4814(a)(3), if the court believes there is doubt as to defendant's sanity, it has the authority to order a sanity examination of defendant regardless of whether the defendant has raised an insanity defense. The question is whether the entire report may be released to the state's attorney when the defendant has not raised an insanity defense.\\n13 V.S.A. \\u00a7 4816(b) does not differentiate between a court-ordered examination and one requested by the defendant; it simply provides that the psychiatrist's report shall be transmitted to the court, the state's attorney and the defendant's attorney. However, \\u00a7 4816(c) provides:\\nNo statement made in the course of the examination by the person examined, whether or not he has consented to the examination, shall be admitted as evidence in any criminal proceeding for the purpose of proving the commission of a criminal offense or for the purpose of impeaching testimony of the person examined.\\n(Emphasis added.) This statute contemplates that the report of a court-compelled sanity examination be sent to the State. There fore, releasing the report to the State is not a violation of the statute.\\nWe next address his compelled participation in the examination. The judge ordered the defendant to attend the examination and threatened both the defendant and counsel with unlimited imprisonment for contempt if the defendant refused to attend. In court earlier, the judge stated, \\\"I'm ordering him to participate in that evaluation, and if you or anyone else defies that order, you'll be in contempt of court. That's punishable by imprisonment and there's no limit.\\\" The defendant argues that this order violated his Fifth Amendment rights.\\nThe Fifth Amendment privilege against self-incrimination applies in compelled pretrial psychiatric examinations. Estelle v. Smith, 451 U.S. 454, 467 (1981); State v. Miner, 128 Vt. 55, 70-71, 258 A.2d 815, 824 (1969). In this case, however, the defendant does not allege that his statements or \\\"the substance of his disclosures during the pretrial psychiatric examinations\\\" were admitted at trial. Estelle, supra, 451 U.S. at 465. Nor does he argue that the State introduced any other evidence which it discovered solely as the result of the defendant's statements to the psychiatrist. See Blaisdell v. Commonwealth, 372 Mass. 753, 762, 364 N.E.2d 191, 198 (1977); Kastigar v. United States, 406 U.S. 441, 460 (1972). Because defendant demonstrates no prejudice we need not consider whether the protections in 13 V.S.A. \\u00a7 4816(c) are co-extensive with the Fifth Amendment. See Blaisdell, supra, 372 Mass, at 763, 364 N.E.2d at 198.\\nThe defendant also claims that his due process rights were violated by the compelled examination, citing Rochin v. California, 342 U.S. 165 (1952). The Supreme Court in Rochin condemned convictions which were brought about by methods shocking to the conscience and offensive to a sense of justice. Id. at 172-73. Here, the defendant has not shown that his conviction was in any way the product of the psychiatric evaluation, and therefore has not shown a due process violation.\\nThe defendant also challenges the court's authority to threaten, the defendant and his counsel with contempt. Under both the existing criminal rule, V.R.Cr.P. 16.2(g), and at common law, Andrews v. Andrews, 134 Vt. 47, 49, 349 A.2d 239, 241 (1975), the court possesses the discretion to cite and punish for civil contempt for violation of valid court orders. We find no abuse of that discretion. Although a more preferable method would be to exclude any testimony offered by the defendant on the issue of insanity as provided in V.R.Cr.P. 12.1(e), we cannot say that the court abused its discretion in threatening contempt.\\nII.\\nDefendant's next series of claims concerns expert testimony offered at trial by both the State's and defendant's psychiatrists. Defendant claims the court deprived him of due process and equal protection when it allegedly allowed the State's expert psychiatrist to testify regarding mental illness while preventing the defense expert from offering his opinion. Further, defendant cites as error the exclusion as irrelevant of testimony regarding defendant's mental condition during the twelve-month period of treatment after the night of the offense and before trial.\\nThe defense expert testified that after meeting with defendant he concluded that defendant's condition could lead to \\\"maladaptive\\\" behavior. Counsel then asked the doctor to describe defendant's condition as if he were speaking to defendant's parents or friends. The doctor then answered:\\nRight. Well, I'll relate to the time of my meeting with Mr. Bushey, Senior on January 5th and what I related to him. And that was that I was extremely concerned about Lennie's emotional health, particularly concerned about the level of depression, suicidal behavior. There was some explicit discussion about indications of ongoing psychiatric treatment as well as a recommendation on my part that psychiatric hospitalization be strongly considered were Mr. Bushey to be out of the correctional center.\\nResponding to an objection that the witness was not answering the question, the court struck the answer and cautioned the jury to disregard it.\\nThe State's expert was called in rebuttal. The state's attorney asked his witness for his definition of mental illness. The witness responded:\\nI approach these problems in a very practical way. I say to myself, \\\"If I had been present when this man or this woman behaved in this fashion, and if they continued to behave in this fashion in spite of what I could do to stop it, would I arrange for the individual to be certified to the State Hospi tal as a psychiatric person, or would I call a policeman?\\\" To suppress the behavior. If I were made up in my mind to call the policeman, then I would say he's not mentally ill, but he's transgressed the law.\\nDefendant objected, arguing that the expert violated the court's instructions by offering an opinion regarding defendant's legal sanity. The court overruled the objection.\\nWe find no error in the court's evidentiary rulings. The court properly ordered the jury to disregard the defense expert's unresponsive answer. The court did not, as defendant claims, strike the expert's response as violative of the court's instruction. The defense expert's stricken testimony quoted above did not concern the expert's opinion regarding defendant's legal sanity. Further, the State's expert did not, as defendant contends, testify as to his opinion regarding defendant's legal sanity. He merely gave his approach to how he views the issue of defining mental illness. The State's expert's testimony was permissible under the court's instruction. The court did not abuse its discretion in making these evidentiary rulings. See State v. Picknell, 142 Vt. 215, 230, 454 A.2d 711, 718 (1982) (a discretionary ruling will not be reversed unless such a discretion was abused or withheld).\\nDefendant also argues that the court erred when it ruled as inadmissible any testimony regarding defendant's mental condition during treatment after the night of the offense.\\nIn ruling on the admissibility of evidence the trial court possessed a great deal of discretion. Id. Admissible evidence must be relevant or have probative value. Further, even if relevant, the evidence is not admissible if the probative value is outweighed by \\\" 'the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.' \\\" State v. Bevins, 140 Vt. 415, 419, 439 A.2d 271, 272 (1981) (quoting Fed. R. Evid. 403). Finally, defendant bears the burden of showing prejudicial error. Picknell, supra, 142 Vt. at 230, 454 A.2d at 718. The defendant has failed to show the court abused its discretion. Any evidence of defendant's mental condition after the events of January 1, 1981, is arguably relevant to whether defendant was sane that night. Nevertheless, we cannot say the court abused its discretion in excluding the testimony, for the probative value of the evidence of post-offense mental condition may have been outweighed by the concerns listed in Bevins, supra, 140 Vt. at 419, 439 A.2d at 272. Further, defendant has not shown he suffered prejudice from the alleged error. Picknell, supra, 142 Vt. at 230, 454 A.2d at 718.\\nIII.\\nDefendant claims the trial judge abused his discretion and denied due process by (1) manifesting his belief in the State's witnesses and an antagonism towards the defense, and (2) basing his sentence of defendant on necessarily rejected testimony of a State's witness' testimony. We hold the court did not abuse its discretion or deny defendant due process.\\nThe defendant first points to instances during trial when the judge interrupted defense counsel during his examination of witnesses and during closing argument. An examination of the record does not reveal an \\\"appearance of prejudice which might incline to influence the jury.\\\" State v. Hedding, 122 Vt. 379, 385, 172 A.2d 599, 602 (1961) (citation omitted). \\\"The fundamental question here is whether or not what was done by the trial judge was prejudicial to the respondent. The party alleging abuse of judicial discretion has the burden of showing such abuse.\\\" Id, at 384, 172 A.2d at 602 (citation omitted). Defendant has failed to show that the judge's interruptions resulted in any prejudice to him.\\nNext defendant argues his sentence should be vacated and the case remanded for a new sentence. The defendant argues that because the jury acquitted him of the kidnapping charges, it necessarily rejected Mr. Campbell's version of events, but that the judge relied upon Mr. Campbell's version in sentencing because he stated he was surprised the jury didn't convict defendant of kidnapping. However, the judge stated he based the sentence on the simple assault and the totality of the circumstances surrounding it. The sentence imposed was ten to twelve months with six months to serve. The maximum penalty for simple assault is im prisonment for one year or a fine of $1,000 or both. 13 V.S.A. \\u00a7 1023(b) (Supp. 1985).\\nDue process requires a sentence to be based on an activity for which a defendant has been charged and convicted. State v. Rathburn, 140 Vt. 382, 388, 442 A.2d 452, 455 (1981). Further, the judge may consider the circumstances surrounding the offense. In re Morrill, 129 Vt. 460, 464, 282 A.2d 811, 814-15 (1971). Sentencing is solely the function of the trial court and within its sound discretion. State v. Arbeitman, 131 Vt. 596, 599, 313 A.2d 17, 19 (1973). The court in this case sentenced defendant within the limits of the law; defendant has shown no abuse of discretion.\\nAffirmed.\\nAlthough the defendant mentions Article 10, Chapter I of the Vermont Constitution, he presented no arguments or authority in support of his claim. Because of this and because the case was argued before our decision in State v. Jewett, 146 Vt. 221, 500 A.2d 233 (1985), we do not address this issue under the Vermont Constitution.\\nAt trial, before either expert witness testified, the court issued an instruction regarding expert testimony on the issue of sanity. The court instructed both experts not to give their opinions whether defendant was sane or insane, or criminally responsible for his actions at the time of the offense. Such a determination would be left to the jury, the court cautioned. As neither party objected to the restrictions imposed by the trial court in this case, we will treat the judge's instructions to the experts as the law of the case. In re Mecier, 143 Vt. 23, 27, 460 A.2d 472, 475 (1983).\"}"
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+"{\"id\": \"5777521\", \"name\": \"Orland Campbell, Jr. v. Manchester Board of School Directors\", \"name_abbreviation\": \"Campbell v. Manchester Board of School Directors\", \"decision_date\": \"1994-01-28\", \"docket_number\": \"No. 92-194\", \"first_page\": \"441\", \"last_page\": \"456\", \"citations\": \"161 Vt. 441\", \"volume\": \"161\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-11T00:59:26.165649+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.\", \"parties\": \"Orland Campbell, Jr. v. Manchester Board of School Directors\", \"head_matter\": \"Orland Campbell, Jr. v. Manchester Board of School Directors\\n[641 A.2d 352]\\nNo. 92-194\\nPresent: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.\\nOpinion Filed January 28, 1994\\nMotion for Reargument Denied March 17, 1994\\nCharles S. Martin and Edward Wayland, Law Clerk (On the Brief), of Martin & Paolini, P.C., Barre, for Plaintiff-Appellant.\\nPeter S. Cullen and John Davis Buckley of Theriault & Joslin, P.C., Montpelier, for Defendants-Appellees.\", \"word_count\": \"5708\", \"char_count\": \"35414\", \"text\": \"Dooley, J.\\nPlaintiff Orland Campbell appeals the decision of the Washington Superior Court denying his claim to the right of reimbursement under 16 V.S.A. \\u00a7 822 for tuition expenses incurred in educating his son at St. Andrews Academy in Delaware. The superior court affirmed the decisions of the Vermont Board of Education (State Board) and the defendant, the Manchester Board of School Directors, that reimbursement is prohibited by the Establishment Clause of the First Amendment to the United States Constitution because of St. Andrews' sectarian character. We reverse.\\nThis is the second time this case has been before this Court. Plaintiff originally attempted to appeal directly from the State Board to this Court. Defendant moved to dismiss arguing that no review of the State Board decision was available. We agreed that no review was available by way of appeal, but concluded that plaintiff could obtain judicial review by certiorari in the superior court. Campbell v. Manchester Bd. of School Directors, 152 Vt. 643, 644, 565 A.2d 1318, 1318 (1989). This appeal is from the adverse decision of the superior court.\\nThe Town of Manchester does not maintain a public high school. As a result, it is required to pay the tuition costs of local students to attend \\\"an approved public or independent high school, to be selected by the parents or guardians of the pupil, within or without the state.\\\" 16 V.S.A. \\u00a7 822(a)(1). The amount of tuition assistance is not to exceed \\\"the average announced tuition of Vermont union high schools for the year of attendance . or any higher amount approved by the electorate.\\\" Id. \\u00a7 824(c).\\nIn 1985, apparently at the instigation of plaintiff, St. Andrews Academy contacted the Vermont Department of Education for approval to educate Vermont students under the compulsory education statute, 16 V.S.A. \\u00a7 1121, and for approval to receive tuition payments from towns without a public high school. The Department approved the former request but denied the latter \\\"[b]ecause of constitutional barriers.\\\" Because of this decision, St. Andrews appears on a list of approved private schools, published in November 1987 by the Department of Education, with a notation that it is ineligible to receive school district tuition payments.\\nPlaintiff enrolled his son at St. Andrews Academy and applied for tuition reimbursement from defendant. Defendant sent a \\\"Tuition Eligibility Questionnaire\\\" to St. Andrews, and, on the basis of the response, denied reimbursement \\\"based on its religious affiliation.\\\" Pursuant to 16 V.S.A. \\u00a7 828, plaintiff appealed these decisions to the State Board which, after a hearing before a hearing officer, denied the appeal.\\nAlthough there are no obvious factual disputes, there has been only limited fact-finding in this case. Relying on the St. Andrews catalogue and questionnaire responses, the State Board found:\\nIn this case the materials presented suggest that the St. Andrews academic program is excellent. While it requires bible study, one cannot judge from the catalogue alone the true nature and content of these courses. However, the catalogue cover features a church. The Episcopal insignia is incorporated in the school crest, and of greater relevance here, St. Andrews holds itself out as a sectarian institution. It requires participation in Episcopalian services of its students (allowing only Catholic students to substitute attendance at mass for the on campus Episcopal service). The religious aspects of its program \\\"give focus and meaning to our community and weave together the many unique strands within it.\\\" St. Andrews Catalogue p. 21.\\nThe catalogue also states that the purpose of the school is to provide education \\\"of a definitely Christian character.\\\" The Headmaster's message at the front of the catalogue states \\\"St. Andrew's is an Episcopal Church School\\\" and amplifies that \\\"[w]hat it does mean is that the School takes the Christian faith seriously.\\\"\\nBased on the facts and the standards applied by the Department of Education and defendant, the State Board found \\\"St. Andrews to be a sectarian school\\\" and affirmed on that basis. On certiorari, the superior court affirmed, although it was concerned that defendant had failed to hold a hearing to make a factual record. The court held that on the record presented tuition reimbursement would be unconstitutional.\\nBefore reaching the merits of this case, we must consider one procedural issue raised by defendant. It argues that the relevant statute, 16 V.S.A. \\u00a7 828, vests the approval of private schools for tuition reimbursement in the State Board so that no relief from an adverse determination is possible against an individual school board directly. Defendant relies on \\u00a7 828, which states:\\nA school district shall not pay the tuition of a pupil except to a public or private school approved by the state board, nor shall payment of tuition on behalf of a person be denied on account of age. A person who is aggrieved by a decision of a school board relating to eligibility for tuition payments, the amount of tuition payable, or the school he may attend, may appeal to the state board and its decision shall be final.\\n16 V.S.A. \\u00a7 828 (1989) (current, amended version at 16 V.S.A. \\u00a7 828 (Supp. 1993)).\\nWe note that this argument was never addressed by the superior court, and further is inconsistent with defendant's actions prior to the superior court proceeding. See In re Twenty-Four Vermont Utilities, 159 Vt. 339, 352, 618 A.2d 1295, 1303 (1992) (failure to raise issue in administrative proceeding precludes judicial review). Defendant made the decision to deny tuition payments based on its own analysis of St. Andrews Academy, and it defended that decision before the State Board. There is nothing in the record that indicates that the State Board maintains a list of schools approved for tuition reimbursement; indeed, its decision-making process is inconsistent with the presence of such a list. See id. at 361, 618 A.2d at 1308 (absent compelling indication of error, statutory constructions by agency responsible for its execution is followed). The Department of Education maintains a list, but it is specifically designated as \\\"not binding on a local school board in the exercise of its authority to determine eligibility for tuition purposes.\\\"\\nIrrespective of whether defendant is correct that the tuition approval decision is vested in the State Board, the second sentence clearly sets forth the appeal route, which plaintiff followed. If tuition is to be paid, defendant will pay it. Thus, the court had before it the parties with the direct stake in the outcome. Defendant has suggested no alternative route by which plaintiff could have the serious constitutional issues in this case decided. We conclude that \\u00a7 828, and the certiorari jurisdiction of the superior court, provide jurisdiction for the superior court's review of the merits of the decision.\\nBecause it is related to the substance of this case, we also address the statutory construction issue raised by defendant. Defendant reads \\u00a7 828 to vest in the State Board, through its power to approve a school, the entire responsibility to determine which schools can be reimbursed consistent with the Establishment Clause. We do not believe that is a proper reading of the section. An independent school is \\\"a school other than a public school, which provides a program of elementary or secondary education, or both.\\\" 16 V.S.A. \\u00a7 11(a)(8). The term \\\"approved independent school\\\" is defined in 16 V.S.A. \\u00a7 ll(a)(20) as an independent school, which is approved under 16 V.S.A. \\u00a7 166. That section, in turn, makes clear that the approval contemplated relates to approval for attendance purposes \\u2014 that is, the school meets curricular and other regulatory standards such that children attending the school meet the statutory school attendance requirement. See 16 V.S.A. \\u00a7 166(b)(5) (loss of approval means students are truant unless they enroll in another qualifying school), 1121 (attendance at school of children of school age required); see also State v. DeLaBruere, 154 Vt. 237, 241-42, 577 A.2d 254, 257 (1990) (discussing \\u00a7 1121). Reading the sections together, as we must, we believe that a \\\"public or independent school approved by the state board,\\\" as the phrase appears in \\u00a7 828, refers to approval under \\u00a7 166(b).\\nThere is nothing in \\u00a7 166(b) to suggest that the Legislature intended the State Board to review whether a particular school is sectarian. No procedures are set forth in the statutes for such a determination. Although the State Board is given rulemaking power with respect to the approval of independent schools, these rules are to relate to whether a school provides a \\\"minimum course of study,\\\" \\\"has the resources required to meet its stated objectives,\\\" has qualified faculty, and has physical facilities and special services that are in accord with state and federal law. 16 V.S.A. \\u00a7 166(b). In fact, the State Board has issued no rules that condition approval on a school being nonsectarian. See Vermont Bd. of Edue., Manual of Rules & Practices \\u00a7 2220-2228 (1992) (independent school approval regulations), reprinted in 3 Code of Vt. Rules 22000004 (1992). The State Board also has approved a number of sectarian independent schools pursuant to 16 V.S.A. \\u00a7 166(b). See Vermont Dep't of Educ., Directory of Approved And Recognized Independent Schools in Vermont (1993). Moreover, the Legislature has specifically set out the powers of the State Board, but has not given it the power to determine whether payment of tuition would offend the Establishment Clause of the First Amendment. See 16 V.S.A. \\u00a7 164.\\nIn 1961, in Swart v. South Burlington Town School District, 122 Vt. 177, 167 A.2d 514, cert. denied, 366 U.S. 925 (1961), this Court struck down the practice of public school districts paying tuition to religious schools as a violation of the Establishment Clause. Thus, we held that the school district \\\"while acting within the literal provisions of the statute, ha[d] exceeded the limits of the United States Constitution.\\\" Id. at 188, 167 A.2d at 521. The Legislature took no action to implement that decision, leaving the school districts in the same position today as they were in 1961. Although the relevant statutes allow school districts to pay tuition on behalf of a resident who is a student in any approved private school, the districts must determine whether such a payment violates the Establishment Clause. This responsibility rests upon them, and not the State Board, except as a matter of appellate review.\\nSince we have rejected defendant's procedural argument, we must address plaintiff's substantive claim. For purposes of analysis, we divide the substantive question into two parts: (1) whether in these circumstances tuition reimbursement for a religious educational institution offends the First Amendment of the United States Constitution; and (2) whether St. Andrews Academy is such an institution. Defendant claims that tuition reimbursement for tuition paid to a sectarian school offends the Establishment Clause of the First Amendment, which states that \\\"Congress shall make no law respecting an establishment of religion.\\\" This prohibition of the First Amendment applies to the states through the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).\\nAs indicated above, we decided this precise question in Swart, holding that tuition reimbursement for Roman Catholic high schools was constitutionally impermissible. 122 Vt. at 187-88, 167 A.2d at 520-21. This holding was based on the First Amendment jurisprudence as it then stood. As the briefing reflects, that jurisprudence has evolved greatly since 1961 and in directions unpredictable at that time. Thus, we must examine the difficult constitutional issues anew in light of more recent teachings.\\nIn 1971, in Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court of the United States developed a three-part Establishment Clause test which has endured, with some modification and internal disagreement, ever since. To prevail under the Lemon test, (1) a challenged statute must \\\"have a secular legislative purpose,\\\" (2) \\\"its principal or primary effect must be one that neither advances nor inhibits religion,\\\" and (3) it must not \\\"foster 'an excessive government entanglement with reli gion.'\\\" Id. at 612-13 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970)).\\nTwo cases since Lemon demonstrate the main considerations in applying the Lemon test to the tuition reimbursement scheme before us. For the school district, the most important case is Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973), decided shortly after Lemon. Nyquist involved three New York programs created to aid private schools: a grant program providing aid for maintenance and repair of school facilities to private schools serving a high concentration of low-income children; a tuition reimbursement program providing limited reimbursement to low-income parents who send their children to private schools; and a tuition tax credit for parents who do not qualify for the tuition reimbursement program because their income is too high. At the time the law was passed, twenty percent of the state's children were being educated in private schools and eighty-five percent of the private schools were church-affiliated.\\nThe Court accepted that the programs had secular purposes in protecting the health and safety of private school students, promoting pluralism and diversity and protecting overburdened public schools from having to educate those then in private schools. It found, however, that the tuition reimbursement program failed the \\\"effect\\\" test because most of the money went to tuition for sectarian institutions. The Court noted that the state could not make direct grants to religious institutions because there was no control to ensure that the aid was \\\"used exclusively for secular, neutral, and nonideological purposes.\\\" Id. at 780.\\nThe Court also concluded that the result was the same when the funds were channeled through the parents for two reasons. First, there were no restrictions on how the funds were used by the institution:\\nThe tuition grants here are subject to no [use]... restrictions. . Indeed, it is precisely the function of New York's law to provide assistance to private schools, the great majority of which are sectarian. By reimbursing parents for a portion of their tuition bill, the State seeks to relieve their financial burdens sufficiently to assure that they continue to have the option to send their children to religion-ori ented schools. And while the other purposes for that aid\\u2014 to perpetuate a pluralistic educational environment and to protect the fiscal integrity of overburdened public schools \\u2014 are certainly unexceptionable, the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions.\\nId. at 783 (footnote omitted). Second, the element of choice did not change the fundamental purpose and effect of the reimbursement program. Thus, \\\"[w]hether the grant is labeled a reimbursement, a reward, or a subsidy, its substantive impact is still the same.\\\" Id. at 786.\\nRelying on the same analysis, the Court also struck down the tuition tax credit scheme: \\\"The qualifying parent under either program receives the same form of encouragement and reward for sending his children to nonpublic schools.\\\" Id. at 791. Although it decided the case under the \\\"effects\\\" prong of the Lemon test, the Court raised concerns that the political divisiveness of state aid to sectarian education created a form of political entanglement, calling it a \\\"warning signal\\\" not to be ignored. Id. at 796-98.\\nIn the case before us, plaintiff relies mainly upon Mueller v. Allen, 463 U.S. 888 (1983), in which the Supreme Court upheld a Minnesota law that gave an income tax deduction for expenses incurred in providing tuition, textbooks and transportation for children in public or private schools. In Mueller, the Court distinguished Nyquist and relied upon a number of factors in finding no impermissible effect: (1) the tax deduction is one of many in the Minnesota tax code to equalize tax burdens of citizens; (2) the deduction is available for parents of all children in school, including those in public schools; and (3) the aid is channeled through parents so that the benefit is the result of private choice. Id. at 396-99. Although the third of these factors was also present in Nyquist, the Court put greater emphasis on it in Mueller: \\\"The historic purposes of the Clause simply do not encompass the sort of attenuated financial benefit, ultimately controlled by the private choices of individual parents, that eventually flows to parochial schools from the neutrally available tax benefit at issue in this case.\\\" Id. at 400. The Court refused to consider empirical evidence that most of the benefit went to the parents of children in parochial school. Id. at 400-01.\\nThe Court also considered the \\\"entanglement\\\" part of the Lemon test because the deduction excluded expenditures on religious textbooks. It held that such determinations did not foster an excessive entanglement. Id. at 403.\\nThe themes of Mueller are relied upon in Witters v. Washington Department of Services for the Blind, 474 U.S. 481, 489 (1986), in which the Court held that the Establishment Clause does not prevent the provision of vocational rehabilitation services to aid a blind student to pursue studies at a Christian college to become a pastor. Noting that \\\"[i]t is well settled that the Establishment Clause is not violated every time money previously in the possession of a State is conveyed to a religious institution,\\\" the Court emphasized that the aid is given to the student \\\"who transmits it to the educational institution of his or her choice\\\" and it is given on behalf of public and private schools. Id. at 486, 487. The Court also emphasized that there was no incentive to use the aid at a religious institution, and no significant part of the aid would end up flowing to religious education. Id. at 488. Because of these facts, the Court held that the program did not \\\"confer any message of state endorsement of religion\\\" and upheld aid to the student even though the religious institution could use the assistance provided through the student for any purpose. Id. at 489.\\nIf Mueller and Witters are the controlling precedents, there may be no Establishment Clause barrier to reimbursing plaintiff for tuition paid to a private school. If Nyquist is the controlling precedent, there may be a barrier.\\nBecause of the nature of this proceeding, we have only a very limited record on which to make our determination. This is unfortunate because it is difficult to judge the effect of a particular course of action without a clear understanding of the choices available to parents and children, the usage of private schools, the usage of sectarian schools, the number of students who have a choice of school, and the like. Our discomfort is heightened because the specific case before us may be atypical, involving an out-of-state preparatory school that draws students of different religions. We note, however, that Witters arose in a similar context and had a similarly sparse record.\\nWe emphasize six \\\"facts\\\" from the record, the statutory scheme and generally available information of which we take judicial notice. First, plaintiff has already paid the tuition in question and is looking for reimbursement; thus, no payment will go directly to a sectarian school. Defendant has made no objection to this procedure although the relevant statute appears to contemplate payment directly to the private high school selected by the parent of the pupil. See 16 V.S.A. \\u00a7 822(a)(1). Recognizing that direct payments to a sectarian institution may raise additional considerations, we do not address the validity of a direct payment to a sectarian institution.\\nSecond, defendant does not maintain a high school and pays tuition for all high school pupils, as required by statute. This is not a case in which a school district both maintains an appropriate school and allows some students to go elsewhere by paying tuition for them. See id.\\nThird, there is no allegation that defendant's decision not to maintain a high school represents a desire to aid sectarian education. Although there are no facts in the record to determine the exact extent of the practice of paying tuition rather than maintaining a high school, the information available to us indicates that a majority of towns maintain a high school, participate in a union high school or designate a private high school as the public high school under 16 V.S.A. \\u00a7 827(a). See 1993-94 Vermont Year Book 43-44, 46-47 (1993) (listing Vermont secondary schools and composition of union high school districts). From the state perspective, the main evidence that the tuition reimbursement system is not intended to aid religious education is its history. If aiding religious education was the intent of the reimbursement system originally, that intent did not survive Swart in 1961. Instead, the system has continued for the past thirty years with the only change being the resulting limitation on parental choice.\\nFourth, unlike Nyquist, there is no indication that the result of defendant's policy will be to send any substantial number of children to sectarian schools. In the 1992-1993 school year, approximately 42,300 students were enrolled in Vermont secondary schools. Vermont Dep't of Educ., Elementary/Secondary Public School Enrollment, 1992-93 School Year (1993) (pages unnumbered). Of that number, approximately 3000, or seven percent, are enrolled in private schools. Id. There is a private secondary school in Manchester, Burr & Burton Seminary, which despite its name is listed by the Vermont Department of Education as a nonsectarian school. There is no approved private sectarian secondary school in Bennington County. See Vermont Dep't of Educ., Directory of Approved and Recognized Independent Schools in Vermont (Jan. 1993). We have no indication, however, of the extent to which tuition might be paid for out-of-state schools.\\nFifth, the extent of state regulation, or other involvement with, St. Andrews Academy will not be affected by the outcome of this case. The school is already an \\\"approved\\\" independent school. See 16 V.S.A. \\u00a7 166(b). Apparently, this designation was made because St. Andrews is \\\"accredited or approved by the host state or by an accrediting agency recognized by the State Board.\\\" Vermont Bd. of Educ., Manual of Rules & Practices \\u00a7 2224.3 (Jan. 1992) reprinted in 3 Code of Vt. Rules 22000004, at 3 (1992).\\nSixth, in this case, the subsidy scheme does not operate to promote sectarian education. The school district of the student's residence must reimburse for the full tuition charged by a public school. For a private school, reimbursement is only at the \\\"average announced tuition of Vermont union high schools for the year of attendance\\\" unless the school meets Vermont public school approval standards or the paying district votes a higher rate. 16 V.S.A. \\u00a7 824(b)-(c). There is no indication of a higher rate here, and St. Andrews Academy, because it is not a Vermont institution, cannot meet Vermont public approval standards. See id. \\u00a7 11(a)(8).\\nTurning to the merits, we can dispose quickly of the first part of the Lemon test. There is no question that the purpose of the statutory scheme is to provide educational opportunity for school-age children while offering educational choice. As indicated above, there is no indication of a purpose to aid sectarian education. There is clearly a valid secular purpose for the tuition reimbursement scheme.\\nOn the second part of the test, we find this case to be governed by Mueller and Witters and not by Nyquist. Thus, we find that the primary effect of the tuition reimbursement scheme is not to advance religion.\\nThere are a number of critical distinctions between this case and Nyquist. Here, tuition reimbursement covers all students whether or not they attend a public or private school, whereas in Nyquist it went only to private school students. As Mueller states, \\\"a program . that neutrally provides state assistance to a broad spectrum of citizens is not readily subject to challenge under the Establishment Clause.\\\" 463 U.S. at 398-99.\\nIn Nyquist, the purpose of the law was to aid private schools, the majority of which were religious schools. 413 U.S. at 783. The Court assumed the purpose would be realized so that \\\"the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions.\\\" Id. Here, there is no indication that aid to sectarian education is either a purpose or a main effect. No doubt some tuition support will go to religious institutions because of our decision. The state and the town are entirely neutral on the extent to which parents exercise that option in the context of reimbursement of tuition payments to parents.\\nIf anything, this case shows a preference for public education because, as discussed earlier, plaintiff faces unreimbursed costs in sending his son to an out-of-state independent school. We note, however, that this may not be true for all private schools because the attainment of Vermont public school approval standards allows for full reimbursement, and the cost may be above that for public schools which, of course, meet the same standard. In this case, as in Witters, the tuition reimbursement scheme involved here \\\"creates no financial incentive for students to undertake sectarian education.\\\" 474 U.S. at 488. We leave for another day consideration of a case in which the reimbursement scheme might favor sectarian education.\\nIf there is a difference between Nyquist and the later Mueller and Witters decisions, it lies in the weight to be given the intervention of parental choice. Nyquist considered this \\\"only one among many factors to be considered,\\\" 413 U.S. at 781, but held that aid was prohibited whether labeled \\\"a reimbursement, a reward, or a subsidy.\\\" Id. at 786. By the time of Mueller, the Court was willing to say that an \\\"attenuated financial benefit, ultimately controlled by the private choices of individual parents\\\" is not encompassed within the historic purposes of the Establishment Clause. 463 U.S. at 400. Witters stressed that any financial benefit to religious institutions was the \\\"result of the genuinely independent and private choices of aid recipients.\\\" 474 U.S. at 487.\\nAny aid flowing to religious schools from this decision is also the result of a parent's genuinely independent and private choice. To the extent this factor has become more significant in the application of the Lemon test, it supports a conclusion that there is no Establishment Clause violation in this case.\\nThe only real distinction between this case and Mueller is that we are dealing with a payment rather than a tax deduction. We agree that the benefits in Mueller are more \\\"attenuated,\\\" but we cannot conclude that this consideration alone is determinative. Indeed, Nyquist equated tax credits with tuition reimbursements, finding the same economic effect. There is no critical difference between the tax credits in Nyquist and the deductions in Mueller. See Luthens v. Bair, 788 F. Supp. 1032, 1039 (S.D. Iowa 1992). Whatever the device, the benefit here to sectarian education is indirect and the effect of parent choice, not government endorsement.\\nFinally, we must consider the third part of the Lemon test. Ordinarily, this part is easily met in a parental choice system because the state has no involvement in the operation of the school selected by the parent. That is the case here because St. Andrews Academy is already approved to accept students, and tuition reimbursement will involve no greater governmental regulation or involvement. As a non-Vermont school, St. Andrews cannot come into compliance with public school approval standards, with more detailed regulation by the state, in order to allow for full tuition reimbursement. See 16 V.S.A. \\u00a7 11(a)(8).\\nWe do not imply, however, that tuition reimbursement avoids excessive entanglement in all contexts or even in general. Vermont has significantly modified its laws with respect to independent schools to avoid excessive entanglement with religion in the regulatory process and protect the free exercise of religion. See DeLaBruere, 154 Vt. at 241-44, 577 A.2d at 257-59; Note, State Regulation of Private Church Schools: An Examination of Vermont's Act 151, 8 Vt. L. Rev. 75 (1983). To allow students to accept tuition reimbursement, religious schools will have to go through the approval process that will increase governmental regulation. Even more governmental regulation is the price for full tuition reimbursement under the current law. We have not determined when government regulation of religious schools may cross the line and invalidate a tuition reimbursement system.\\nBased on the three parts of the Lemon test, we conclude that reimbursement of tuition to plaintiff would not offend the Establishment Clause even if St. Andrews Academy is a sectarian institution. Accordingly, we do not reach the issue of whether the superior court's determination that St. Andrews is sectarian was in error.\\nIn conclusion, we emphasize the narrowness of our decision based on the narrow record before us. As in Witters, we decide only that giving tuition reimbursement to this plaintiff will not offend the Establishment Clause. See 474 U.S. at 489-90. In other cases, with a fuller record or different circumstances, the result may well be different.\\nReversed; cause remanded to determine the amount of tuition reimbursement to which plaintiff is entitled.\\nThe \\\"standards\\\" of the Vermont Department of Education were not part of the record before the Board and are not available to us.\\nIf defendant's position were correct, the State Board's decision would have simply involved looking up St. Andrews Academy on its list and stating what the list said. The State Board's decision never mentions such a list nor suggests that any such list would be definitive. Defendant never argued to the State Board that the State Board had an approval list and should consult it.\\nEffective June 1990, the Legislature amended 16 V.S.A. \\u00a7 166 to establish two alternative methods for private schools, now termed \\\"independent schools,\\\" to become authorized to meet the attendance requirement of students. 1989, No. 44, \\u00a7 1. One method is to become \\\"approved\\\" by meeting certain standards for private schools as evaluated by the State Board. 16 V.S.A. \\u00a7 166(b). The alternative is to become \\\"recognized\\\" by submitting certain information and assurances to the Commissioner of Education. Id. \\u00a7 166(c). Only approved schools are eligible for tuition reimbursement under \\u00a7 828. The fact that there is an alternative route to become qualified to accept students does not change our conclusion about the meaning of \\u00a7 166 and \\u00a7 828.\\nFor example, Rice Memorial High School, a South Burlington parochial sec ondary school for which tuition payments were struck down in Swart v. South Burlington Town School District, 122 Vt. 177, 167 A.2d 514, cert. denied, 366 U.S. 925 (1961), is approved by the Board pursuant to \\u00a7 166(b). The earlier version of the Directory was in evidence in this case before the superior court. We take judicial notice of the current version of this public, and widely available, government document.\\nDefendant has not made a separate claim under Chapter I, Article 3 of the Vermont Constitution, and we do not reach that question. We note, however, that Swart was decided under the First Amendment to the United States Constitution because this Court found that \\\"[i]n the domain of religious liberty, the resolute history of the First Amendment seems the more demanding.\\\" Swart, 122 Vt. at 184, 167 A.2d at 518; see also Vermont Educ. Bldgs. Fin. Agency v. Mann, 127 Vt. 262, 269, 247 A.2d 68, 73 (1968) (in the Establishment Clause area, \\\"the limits of the First Amendment of the Federal Constitution are more restrictive\\\"); cf. Opinion of the Justices, 616 A.2d 478, 480 (N.H. 1992) (proposed school choice plan that allows tuition reimbursement for sectarian schools violates provisions of New Hampshire constitution). Of course, as pointed out in the text, these decisions refer to a First Amendment jurisprudence that has evolved markedly since they were issued.\\nIn recent decisions, other tests have emerged as possible successors to or replacements for the Lemon test, and commentators have speculated how school choice plans might fare under these alternative analyses. See Comment, The Constitutional Implications of School Choice, 1992 Wis. L. Rev. 459, 479-83, 486-87. The United States Supreme Court has recently granted certiorari in a case to examine the continuing vitality of Lemon. See Board of Educ. of Kiryas Joel Village School Dist. v. Grumet, 62 U.S.L.W. 3368 (U.S. Nov. 30, 1993) (grant of certiorari). Speculation on the future of Lemon is the grist of law review articles, not the decisions of courts, which must follow the law as it exists. Moreover, our decision is fully consistent with the doctrinal development that may spur the emergence of a new Establishment Clause regime.\\nThe Court in Nyquist took judicial notice of enrollment data from publicly available government reports, exactly the type of information we have used here. See Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 768 n.23 (1973).\\nAn examination of the various districts indicates that roughly half of Vermont's 246 organized towns and cities, see 24 V.S.A. \\u00a7 2-15 (listing Vermont towns and cities by county), are members of a unified district providing secondary education. Approximately forty more, which include most of Vermont's most populous towns and cities, operate their own secondary schools. It is clear that the percentage of students residing in towns that do not provide a secondary school is much lower than the percentage of towns that do provide a secondary school.\\nAnother reason why reimbursement above the average public school tuition is not possible in this case is that the authorization for such reimbursement became effective in 1991, well after the actions in issue here. See 1991, No. 24, \\u00a7 1,3. We have noted this change in the law to be clear that we have not decided whether reimbursement under the 1991 scheme is consistent with the Establishment Clause.\\nWe do not believe that the third part of the Lemon test should be judged by the political divisiveness concern of Nyquist. That concern is \\\"confined to cases where direct financial subsidies are paid to parochial schools or to teachers in parochial schools.\\\" Mueller v. Allen, 463 U.S. 388, 404 n.11 (1983). No such direct subsidy exists in this case.\"}"
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+"{\"id\": \"610581\", \"name\": \"Joseph Russell v. Samuel Buck\", \"name_abbreviation\": \"Russell v. Buck\", \"decision_date\": \"1839-01\", \"docket_number\": \"\", \"first_page\": \"166\", \"last_page\": \"189\", \"citations\": \"11 Vt. 166\", \"volume\": \"11\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T19:38:58.455276+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Joseph Russell v. Samuel Buck.\", \"head_matter\": \"Joseph Russell v. Samuel Buck.\\nA promise by one already legally liable for a debt, in consideration of such liability, to pay, if waited on a certain time, creates no new liability.\\nA promise to pay the debt of another,, if waited on a certain time, leaving the debt to be enforced, during that time, against the debtor, is nudumpactum.\\nA promise, by an indorser to an indorsee, in these words, \\u201c I hereby guaranty to said R. the collection and payment of the above described note, and agree to pay the same on condition that said R. does not call on me for payment till the 1st of May 1831,\\u201d is not an absolute promise to pay. It is, in legal effect, a promise that the indorsee shall use reasonable diligence to collect the note of the maker; and, if he fails in such collection, then the promissor will pay the same on demand, after 1st May 1831.\\nThis was an action of assumpsit. The declaration contained two counts. The instrument declared upon was without date, and is recited in the second count. The first count was as follows;\\nFor that whereas, heretofore, to wit, on the 26th day of June 1828, Amasa Gibson and Reuben C. Gibson made, executed and delivered to Buck & Bailey and Eland & Kenyon their joint and several promissory note for $1915,13, payable in one year from the date aforesaid, with interest, at the Farmers\\u2019 Bank, and expressed to be for value received, which said note, on the day and year last aforesaid, was indorsed and delivered by the said payees, Buck & Bailey and Eland & Kenyon, to the plaintiff, for value received; by reason of which said indorsement, the said defendant was, as one of the said indorsers, liable on said note; and in consideration thereof, and in consideration that plaintiff would not call on defendant for the payment of said note, until the 1st \\u25a0 day of May 1831, the defendant faithfully promised plaintiff to pay him the contents of said note, provided plaintiff did not call on defendant till the 1st day of May 1831 ; and the plaintiff avers that he did not call on defendant until long after the lstday of May 1831, to wit, until the 1st day of June 1831. Yet the defendant, notwithstanding said note, on the 1st day of May 1831, remained wholly unpaid, not regarding his said promise and undertaking aforesaid, has ever neglected and refused to pay said note or any part thereof, and still Beglects and refuses, to the damage of the plaintiff four thousand dollars.\\nSecond count.\\nAnd for that whereas, the said Joseph Russell, on the 1st day of June 1829, held one other note of $1915,13, and signed by said Amos B. Gibson and Reuben C. Gibson, for value received, and delivered the same to the said Buck & Bailey and Hand & Kenyon, to whom, or to whose order, the said note was payable in one year from date, which said note was indorsed by said Buck &. Bailey and Hand & Kenyon to plaintiff, to wit, on the day and year last aforesaid, at Bridport, whereby the said defendant was liable, as one of the indorsers of said paper ; and the said Buck, being thus liable, to wit, on the day and year last aforesaid, made, signed, and delivered to plaintiff, a writing of the following ten- or : \\u201c Whereas, Buck & Bailey indorsed a note made by Am-B. Gibson and Reuben C. Gibson for $1915,13, i\\u00a3 dated June 26, 1828, and payable one year from \\u00a3\\u00a3 date, with interest, which note is now the property of \\u201c Joseph Russell; now,' therefore, I hereby guaranty to said \\u201cRussell the collection and payment of the above described \\u201c note, and engage, to pay the same, on\\u2019condition that said \\u201c Russell does not call on me for pdyment till the first day \\u201cof May 1831.\\u201d And the plaintiff avers, that neither the said Amasa B. Gibson, nor Reuben C. Gibson, nor any other person, has ever paid said note, or any part thereof; and the plaintiff says that he did not call c;n said defendant till the 1st day of May 1831, agreeably to the above condition Yet the defendant, not regarding, &c.\\nThe defendant pleaded the general issue, and the statute of limitations.\\nThe note, mentioned in the declaration w\\u00e1s offered in evidence by the plaintiff, and was as follows :\\n\\u201c $1915,13. One year from date we jointly and severally promise to pay to the order of Buck & Bailey and Hand & Kenyon, at the Farmers\\u2019 Bank, nineteen hundred and fifteen dollars thirteen cents, value received, with interest. Troy, 26th June, 1828.\\n(Signed) Amasa B. Gibson.\\nReuben C. Gibson.\\u201d\\nWhich note was indorsed on the back,\\n\\u201c Buck & Bailey.\\u201d\\n\\u201c Hand & Kenyon.\\u201d\\nTo prove the execution of the endorsement of Buck & Bailey, on the back of said note, the plaintiff introduced and proved the instrument declared upon, and gave the same in evidence, it being admitted to have been executed by the defendant. The plaintiff insisted that the said contract was sufficient evidence to entitle him to recover, and thereupon rested his case.\\nThe defendant moved for a nonsuit, on the ground,\\n1. That the proof did not support the declaration, both as it respected the contract and the consideration alleged.\\n2. That no presentment and notice of non-payment had been shown, and the instrument produced was not a waiver of these so as to hold an indorser, unless plaintiff showed that he had made the waiver with a knowledge that there had been no presentment and notice.\\n3. That, admitting these points were not tenable, the statute of limitations had run, as the instrument shown in evidence was void, for want of consideration, as an independent contract, and therefore was only an admission from the time it was made, and the plaintiff must show it made six years before suit commenced.\\nThe court decided that the evidence was sufficient to support the declaration, and would maintain the action on the part of the plaintiff, and denied the motion for a nonsuit.\\nThe defendant then proved, that on the 29th day of Jan. A.D. 1828, Amasa B. Gibson, who was a merchant in Crown Point, in the state of New York, sent his clerk to the store of Buck & Bailey, in the same town, with a blank piece of paper to Bailey to indorse for his accommodation, which Bailey refused to do ; that about two hours after, Gibson himself came to the store of Buck & Bailey, and urged Bailey to indorse the company name of Buck & Bailey on a blank piece of paper, tp enable Gibson to draw 800 or 900 dollars from one of the banks-;,''that Bailey objected to doing business in that way; that Gibson pressed him and finally drew up and gave him a memorandum as follows : \\u201c Re- \\u201c ceived of Buck & Bailey their indorsement on a blank to \\u201c be filled up with a note, not to exceed $ 1000, at one of the \\u201c banks. Crown Point, 29th Jan. 1828. (Signed) Amasa \\u201c B. Gibson.\\u201d Upon which Bailey put the name of \\u201c Buck and Bailey\\u201d to the blank piece of paper ; that the note in\\nquestion was filled up upon that paper; that Russell and Hall were then merchants in Troy ; that Buck lived in Bridport, Vermont, and was in partnership with Bailey in mercantile and lumbering business, which was carried on at Crown Point, where Bailey, who was the acting partner, resided ; that Buck was not present when the indorsement was made, and it did not appear that he had knowledge thereof; that Bailey had no authority to make the indorsement of the company name in that manner, never having done so before, except in the business of the company, and that the company received no consideration whatever for the indorsement.\\nThe defendant insisted that the note having been made fraudulently as to the defendant, and indorsed without consideration, the plaintiff must show that he paid value for it and was a bona fide holder, before he could recover on the special contract declared on ; that the writing given by the defendant did not bind him ; at least, unless the plaintiff showed it was given by defendant' with a knowledge' of the facts in relation to the note.\\nThe court decided that the facts shown by the defendant constituted no defence, and that plaintiff had a right to recover, whereupon a verdict was taken by consent for the plaintiff, for the amount of the note, subject to the opinion of the supreme court.\\nA. C. Hand and S. S. Phelps, for defendant.\\nThe transaction in question may be viewed in two aspects:\\n1. The note and indorsement may be considered the principal ground of the claim, and the subsequent paper a mere recognition or confirmation of the act of the copartner in making the indorsement.\\nIn this view the action should be upon the indorsement, and the other instrument should be used as evidence m\\u00e9rely to rebut the defence.\\nThis course was not taken by the plaintiffs, because, in this view of the case, the action is barred by the statute of limitations.\\n2. The subsequent paper may be regarded as a substantive contract, founded on the original indebtedness, as its con sideration, and declared on as the principal ground of recovery.\\nThis is the course taken in the present case.\\n. This distinction is radically important and ought not to be lost sight of.\\nI. The first objection to the plaintiffs proof is on the ground of variance, for,\\n1. The undertaking is not to pay absolutely, but to pay if the parties, primarily liable, did not.\\n2. The consideration proved, if any be proved, varies from that alleged.\\nThe consideration proved must correspond with that alleged.\\nIf it be more or less, the variance is fatal.\\nII. The plaintiff cannot recover, without proving demand and notice to the other indorsers, and also due diligence in collecting of the other parties.'\\nThis point depends upon the .construction given to the writing.\\nIII. The contract declared on is without consideration, \\u00e1nd- cannot be enforced.\\nTwo considerations are relied on :\\nFirst. The giving of time.\\nSecond. The original indebtedness.\\n1. As t\\u00b0 the first.\\nThe paper does not. prove it. On the face of the paper the delay is a mere condition or qualification of the promise.\\nAn agreement, on the part of the plaintiff, to give time, would constitute a good consideration; but there was no evidence that the plaintiff was bound directly or indirectly.\\nThe promise, if binding at all, must be binding when made; and must afford a mutual remedy.\\nAfter all, the delay constitutes no consideration, if there be no debt to be forborne.\\nFurther, the indebtedness is alleged in the declaration as constituting a part of the consideration in the first count and the entire consideration in the second ; and must, therefore, be shown, to sustain-either count.\\n2. As to the original indebtedness :\\nIt is evident that the defendant was not originally liable, by reason of the indorsement; for,\\n1. It was obtained by Gibson by fraud.\\n2. Bailey had no authority to make it in behalf of the partnership.\\nThe plaintiff could not recover upon it, except under special circumstances to be shown by him ; that is to say, without showing a valuable consideration originally advanced upon the credit of the indorsement.\\nBy the law of New York, it would not be enough to have received the note either as collateral security or even in payment of a precedent debt.\\nUpon the authority of Heath v. Sansom et al. 22 Com. Law Rep. 78, the defendant showed enough to defeat an action on the note, unless the plaintiff showed special grounds to entitle him to recover.\\nIf, then, he showed enough to defeat a recovery upon the indorsement, unless for special reasons not shown by the plaintiff, has he not prima facie disproved the consideration ?\\nThere can be no difference between-sustaining the right of recovery on the indorsement and sustaining the consideration in this case. They are identically the same.\\nThe proof of consideration derives no aid from the promise itself.\\nTo argue from the fact that the promise was made to prove a consideration, and then to urge the consideration as sustaining the promise, is reasoning in a circle.\\nThe idea that the defendant stands on less advantageous footing, than if the suit had been upon the indorsement, arises from confounding the different views of the subject suggested in the outset.\\nIt requires something more to give effect to this after promise, as a perfect and valid contract, than to give it effect as evidence merely of a previous indebtedness, and that something consists in a distinct substantive consideration to support it.\\nBy adopting this course, the plaintiff has assumed the burthen of establishing his original debt, and that debt may be proved on the one hand, or disproved on the other, by\\nprecisely the same evidence as would be required if the same thing had been put in issue by a different form of declaring.\\nIf, then, the evidence, offered by the defendant, would entitle him to a verdict in a suit on the indorsement, it entitles him to a decision here that there was no indebtedness and no consideration for the promise.\\nFurther, there is certainly nothing conclusive in this after promise, which should preclude the defendant from inquiring into the consideration upon which it was founded.\\nThe utmost which can be claimed is, that the after promise affords evidence, so far as it goes, to count\\u00e9rvail the defence. In this point of view its effect depends altogether upon the assumption, that the promise was made with full knowledge, on the part of the defendant, of the facts here relied on. Rouse v. Redwood, 1 Esp. Rep. 155. Middle-bury College v. Williamson, 1 Yt. Rep. 212.\\nIn this view of it, it was proper for the consideration of the jury, and should have been left to them, with instructions to give it effect, as they should find the facts as to the defendant\\u2019s knowledge of the circumstances and his motives in making the promise.\\nThere is in the case, as stated, sufficient to satisfy a jury that the promise was made in ignorance of the facts, especially if the plaintiff fail to give proof of a consideration paid for the note.\\nThe suggestion that the after promise changed the burthen of proof is fallacious. The onus probandi is on the defendant, whether the suit is on the indorsement or the after promise.\\nIn either case the defendant gives the same proof on his part, and the plaintiff either gives it in.evidence in reply or relies on it as already in evidence. It is obvious that, whichever course is taken, the intrinsic effect of the evidence is the same. But the county court treated it as conclusive in this case, both as to the original indebtedness and the consideration necessary to sustain the action.\\nThe burthen of proof, as to defendant\\u2019s knowledge, is on the plaintiff, because, the promise or acknowledgment derives all its force from that source.\\nIV. With regard to the construction of the contract ;\\u2014\\n1. What was the intent of parties ?\\nThere was no surrender of the note, nor discharge of the other parties, nor any remedy to the defendant.\\n2. The promise was collateral, if the indorsement remained in force. It does not extinguish the note, and may be given in evidence in an action on the indorsement.\\n3. The words, \\u201cguaranty the collection,\\u201d show the understanding of the parties to have been that the note was to remain in force, and be pursued.\\n4. The effect of the contract cannot be varied by the form of the action.\\nThere is no waiver of the rights of'defendant as indorser.\\nBy the very terms of the guaranty plaintiff was bound to use due diligence.\\n5. If we suppose the paper to have been dated before the note became due, it was a mere affirmance of the act of defendant\\u2019s partner. There would be no waiver, in that case, of any future right, but it would be presumed that diligence was to be used.\\nIf we suppose it to have been subsequently dated, there is still no waiver of diligence, nor any admission of notice to the other indorsers.\\n6. The general rule as to waiver is not applicable here, because the question arises upon a special contract, and depends upon the intent.\\nIf the defendant remains as indorser, he retains the rights of an indorser, so far as not intentionally relinquished.\\nA subsequent and collateral contract varies the original one, only so far as is expressed or may be fairly inferred.\\nC. Linsley, for plaintiff.\\nI. The contract offered in evidence, if made after the note was due, is sufficient evidence of a demand, protest and notice, if these be requisite in this case; and if made before the note fell due, it would dispense with notice, &c. The acknowledgment of liability on a bill or note, and promise to pay after it has fallen due, or a part payment, dispenses with the necessity of proof of demand, protest, &c. Gibbon v. Coggon, 2 Camp. R. 188. Taylor v. Jones, 2. do. 105. 7 Conn. R. 543. Luhdie v. Robertson, 7 East\\u2019s R. 231. Hopes v. Alder, 6 do. 16, note. Rogers v. Stephens, 2 Term R. 713. Stark. Ev. 272. 3 Johns. R. 68, 71. Allen v. Rightmere, 20, Johns. R. 365.\\nII. The subsequent promise is also an admission that the bill was rightly drawn and signed with the partnership name. The time to make the objection was when called upon for payment. . Besides, the con\\u00fcact states that the note was in- \\u25a0 dorsed by Buck & Bailey. Lundie v. Robertson, 7 East\\u2019s R. 231.\\nIII. But suppose the promise to have been made before the bill fell due, then it is a waiver of demand and notice to defendant. The contract was, if the plaintiff would wait, the defendant would pay. The reason for a notice is dispensed with. When time is asked, demand and notice are unnecessary. 2 Stark.Ev. 262, note. Leffingioell v. White, 1 Johns.Cases, 99.\\nIV. The facts shown by defendant, with regard to the bill being an accommodation bill, and indorsed in blank, would have constituted no defence in a suit on the bill, and cannot be available here. Chitty on Bills, 28.\\nV. It is difficult to see on what ground it can be argued that thd proof does not support the declaration. The first count, after setting forth the note, alleges that in consideration of Back\\u2019s liability on the note, and of the extension of the time,he promised to pay, &c. That both these entered into the consideration is obvious. But it is said it is not an absolute promise to pay, but is a guaranty. A guaranty, as understood in the law, is an undertaking for another, when, independently of the guaranty, the guarantor would not be liable.\\u2014 Here the defendant was originally liable, and was bound to pay the money presently. When, therefore, he makes an arrangement for time with regard to himself, how can it be considered a guaranty ? But the word \\u201cguaranty\\u201d is not used in its technical sense, and is controlled and its meaning ascertained by the following words, which amount to an absolute promise to pay, if time is given. The true meaning of the contract is that Buck will pay the note, if Russell will give time.\\nAgain, the second count sets forth the contract in terms, and if the legal inference should not be properly drawn, it is no ground of variance. The contract, offered in evidence\\u00bb is like the one declared on, and it is no objection to the evidence that the legal inference is not correctly drawn from it. But that the proper legal inference is drawn is clearly true, if the contract amounts to a promise to pay.\\nVI. The writing declared on is evidence that Russell is a bona fide holder, for value. When Buck says \\u201cwhich note is now the property of Joseph Russell,\\u201d it is an admission that Russell is a bona fide holder. Why call it his property, if he has no interest in it and is a mere stake-holder ? At all events, it is enough to put the burthen of proof upon Buck, to show that Russell is a mere man of straw, if it be so.\\u2014 Potter v. Bartlett, 6 Vt. R. 248.\\nVII. But it is enough to maintain this suit, that Russell has waited the time stipulated in the contract. It is argued that this is nudum, pactum. But it is to be observed, that the question is not whether it could be enforced while executory, but whether, after condition fulfilled by Russell, Buck can have the advantage of the delay, and now urge that the contract was not binding. The promise is conditional, and is to be absolute on the performance of the condition. Russell has performed the condition, and the obligation is thereby perfected against Buck.\", \"word_count\": \"9577\", \"char_count\": \"53705\", \"text\": \"Collamer, J.\\nThe defendant, with his partner, was an indorser of a note of which the plaintiff was indorsee, and; as the declaration alleges, was liable for the debt; and at some period, either before or after the note became due, the defendant executed to the plaintiff the paper now in question. And the inquiry is, what is the legal effect of that paper ?\\nIt is to be borne in mind that this is not an action against the defendant as indorser. Had it been so, there probably would have been little difficulty with the case. This writing would have been evidence in confirmation of the defendant's liability. If given before the note was due, and viewed as an absolute promise, it would have waived all evidence of notice of non-payment. If given after the note was due, and considered as- an absolute promise to pay, on time, it would have waived all objection on account of the want of notice. Such has been repeatedly decided to be the legal effect of such a promise. The whole scope of the authorities, cited by the plaintiff, merely shows what is the effect of such a promise made by an indorser, when he is sued as indorser. This tends strongly to show that such a promise has no legal effect but as ancillary, and in confirmation of his existing liability, and does not extinguish that liability and create any new and substantive ground of action. The plaintiff has permitted the statute of limitations to run on any claim he has on the defendant, as indorser, and now claims to recover of the defendant on this writing as a substantive, independent, legal and perfect ground of action. Can this be sustained ?\\nTo sustain an action on this writing, as. a contract, it must have a legal consideration. If the consideration is, that the defendant was then liable, as indorser, and in consideration thereof, promised to pay, if waited on, then it is like any case where a man owes a note now due, or to become due in six months, and, in consideration thereof, promises to pay the same, if waited upon one year. This new promise creates no new legal liability. It leaves the note, the debt and the parties as they were before. Such a promise might, indeed, if seasonably made, affect the claim as to the statute of limitation, but would be no ground of action in itself. If the defendant was not liable as indorser, then he is to be treated like any other third person. Here it is to be observed, that the writing does not.stipulate or imply, nor is it pretended that it was ever understood by the parties, that the plaintiff was to delay the collection of his debt from the maker of the note. In this category, treating the defendant as a third person, not liable until this promise, it is simply a promise to pay if he is himself waited on. Most clearly, a promise to pay the debt of another in a certain time, if so long waited on, leaving the debt to be enforced during all that time against the debtor, is nudum pactum. It is, therefore, extremely difficult, if not impossible, to view this writing as having any consideration as a substantive contract. It seems nothing more than a writing recognizing the plaintiffs liability, as indorser, and promising, as such indorser, to pay, if waited on, if the plaintiff did not collect of the makers. It therefore created no new liability but left the defendant still to be pursued, as indorser, and in that way only.\\nBut even if we were satisfied as to the matter of consideration, we'do not consider this an absolute promise of payment. It is generally true, that where one undertakes for something to be done by himself or another, it is considered as absolute and unconditional. He must see it is done. But when he undertakes to do. provided the promisee shall do something, then his undertaking is always conditional, implying that the promisee shall use diligence and give notice of the result before action. In construing a contract, regard must be had to the subject matter, and the circumstances under which it was made, and all parts of the contract should have effect, This writing was made by an indorser to an indorsee, in relation to a note left in the hands of the indorsee in full effect. If the plaintiff could collect of the makers, that would be satisfactory to all, and was one thing he desired to effect. If he should not be able to collect of the maker, then he wanted pay of the indorsers. Now, under these circumstances, and for these purposes, was this writing made. After stating how the parties stood connected with the transaction, the promise is in these words : \\\" Now, therefore, I hereby guaranty to said Russell the collection and payment of the above described note\\\"--- \\\" and agree to pay the same, on condition that said Russell does not call on me for payment till the 1 st day of May, 1831.\\\" All that part which guaranties the collection of the debt is clearly a separate clause, and relates to procuring pay of the makers. That clause which promises to pay it himself, amounts to this, that in case it is not collected of the makers, he would pay it himself, on demand, after May, 1831. To hold this an absolute promise of payment by the defendant, on being waited on, makes the former clause of the promise nugatory and unmeaning. That former partis, in effect, a promise that the plaintiff, with proper and reasonable diligence, will be able to collect of the makers. It amounts to a guaranty that the note is collectable with reasonable diligence. Foster v. Barney, 3 Vt. R. 60. Sage v. Wilcox, 6 Conn, R. 81, And for this purpose the note was left in force, and in the plaintiff's hands. The remainder of the promise is, if the plaintiff fails to collect of the makers, after reasonable diligence, then the defendant will pay, after May 1,1831. Such we consider the clear intent for which this writing was given and received, such is its meaning, and such, even if if has good consideration, is its legal effect, but it is not so declared on.\\nJudgment reversed.\"}"
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+"{\"id\": \"610666\", \"name\": \"Alfred Wainwright v. Lyman Webster\", \"name_abbreviation\": \"Wainwright v. Webster\", \"decision_date\": \"1839-07\", \"docket_number\": \"\", \"first_page\": \"576\", \"last_page\": \"582\", \"citations\": \"11 Vt. 576\", \"volume\": \"11\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T19:38:58.455276+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Alfred Wainwright v. Lyman Webster.\", \"head_matter\": \"Alfred Wainwright v. Lyman Webster.\\nA. being indebted to B., paid him the amount of such indebtedness in bills of an insolvent bank. The bills were ijnjjill tjpe&it at the time and .place of payment, and both parties were ignorarft of such insolvency. Previous to the time of such payment, the banlr had ceased to redeem its bills at its counter, and they were not circulating as a currency in the immediate vicinity of the bank, but this was unknown to the parties at the time. B. afterwards learning the facts offered to return the bills, but A. refused to receive them; \\u2014 Held, that the payment, under these circumstances, was not a satisfaction of the debt. ^\\nAn officer who receives a writ of attachment, for service, is not thereby constituted the agent of the plaintiff, for receiving .payment on the demand.\\nThe deposition of a witness, taken upon nbtice to the adverse party, is admissible in evidence, though taken more than thirty miles from the residence of the adverse party; and not filed with the clerk of the court thirty days before the time of trial, as is required in the case of exparte depositions.\\nAssumpsit, on a promissory note, with a count for money had and received.\\nPlea, non assumpsit. Issue to the country.\\nUpon the trial in the county court, the plaintiff produced and proved the execution of the note, and there rested.\\nThe defendant introduced testimony tending to show, that the plaintiff left the note in suit for collection with an attorney, who made a writ upon it, and gave it toan officer to serve. The officer went to the defendant\\u2019s house to serve the writ, on the 28th of March, 1838, The defendant being absent, his father paid the officer the amount due on the note, and the costs which had accrued, in two bank notes of the bank of Windsor. The officer took the bank notes, and agreed to pay and take up the note in suit. On the morning of the 29th of March, 1838, the officer gave the bank notes to the plaintiff\\u2019s attorney, and took up the note. At that time nothing was known, at the place where the attorney and officer resided, of the failure of the bank of Windsor, except, that, at the time of the general suspension of specie payment, by all the banks, the bank of Windsor also suspended, but had all along redeemed its.bills in Boston, where it kept a deposit for that purpose, and at its counter. A few days after the note was taken up, by the officer, the attorney of the plaintiff notified the officer that the said bank notes were not good, whereupon the officer again received them, and returned the note in suit to the attorney. Some few weeks after-wards, the officer offered the bank notes to the defendant\\u2019s father, who declined receiving them.\\nThe officer was a witness, and testified that he had once or twice before, when serving writs for the same attorney, received the sum demanded in the writ and paid it over to the attorney, who received it without objections, and that the attorney made no objections in the present case, but the officer had no authority for so doing, except what was derived from such acts and acquiescence of the attorney.\\nTestimony was also given tending to shew that the bank of Windsor continued to redeem its notes in current bank bills at its counter, and that its bills were current in the village of Windsor, until the morning of the 29th of March, 1838.\\nThe plaintiff introduced testimony, tending to prove, that said bank ceased to redeem its notes in Boston, in any manner, as early as the 26th or 27 th of March, 1838, and\\u00f3n the 28th of the same March, wholly stopped payment of its notes at its counter, in any manner whatever, and that it was notorious in the village of Windsor, as early as the 28th of March, 1838, that said bank had failed.\\nThe plaintiff offered the deposition of George B. Green, to which the defendant objected, because it was taken, ex parte, more than thirty miles from the adverse party\\u2019s place of residence, and was not filed with the clerk of the court thirty days before the commencement of the term of the court for which it was taken.\\nThe objection was overruled, and the deposition admitted. The magistrate who took the deposition certified that the adverse party was notified, but did not attend.\\nThe court below charged the jury, that there did not appear to be any satisfactory evidence that the officer, who served the writ, had any authority to settle the demand in suit; that in doing what he did in that respect, he appeared to be acting as the agent of the defendant; that the payment could not be considered as made to the plaintiff until the morning of the 29th of March, and if, at that time, the bank continued to redeem its bills, at its counter, in such a manner as to give them currency in the neighborhood where the > bank was situated, the plaintiff could not recover, notwithstanding the bank had ceased to redeem its bills in Boston before that time; but, if the bank had wholly failed to redeem its bills, at its counter, so that the bills had ceased to have any currency in that immediate vicinity, before that time, the plaintiff would be entitled to recover, notwithstanding this was not known before the time when the bills were received by the plaintiff\\u2019s attorney.\\nThe jury returned a verdict for the plaintiff and the defendant excepted.\\nCarpenter, Buck, and L. B. Peck, for defendant.\\n1. The plaintiff cannot maintain this action, because he has once received his pay, and delivered the note to a person duly authorised to receive it.\\nOn the day the bills were paid to the officer, or on the following day, which from the testimony is somewhat doubtful, the bank proved to be insolvent. Under these circumstances, we think if the plaintiff did not risk the solvency of the bank, .he would have required an express warranty of the defendant. II Johns. R. 409.\\n2. The bills in controversy were paid by the defendant to the officer on the 28th, and by the officer to the plaintiff\\u2019s attorney on the morning of the 29th of March, 1838. The officer had in several instances settled suits on writs, and paid the money to the attorney without any objections being made, nor were there any made in this case. The receiving of the money by the plaintiff\\u2019s attorney, from the officer, was a recognition of his authority to settle the demand, and had relation back to the time of the paying of the money to the officer, by the defendant. Macleans. Dun, 1 Moore & Payne, 761. 2 Salk. 442. 2 Ld. Raym. 930. 2 T. R. 189, n. 7 East, 164, 166. 3 P. Wms. 427. 2 Stark. R. 468. Law Summary, 141, 142. 3 Burrow, 1254.\\n3. The deposition of George B. Green should have been rejected on the trial of the case in the court below, it not having been taken according to the statute. Stat. 83. 1 Aikens\\u2019 R. 264. 1 D. Chip. R. 106, 107.\\nO. H. Smith, for plaintiff.\\nThere was no evidence tending to shew, that the officer was the agent of the plaintiff, but on the contrary, he appears to have acted expressly as the agent of the defendant\\u2019s fath er. He undertook to pay over the bills delivered to him, and take up the note. If he had neglected to do so, an action of trover would have lain against him. He was not in possession of the note, and even if he were the agent of the attor- ' i ney, the payment was not good, as such, in this case. Paley on Agency, 209.\\nThe main question, however, is, whether the delivery of bills of \\u00e1 bank that has failed, amounts to a payment.\\nIt has long been settled, that the bills of a solvent bank are cash, by the general consent of mankind-, sanctioned by judicial decisions. A tender of bank bills is good, unless objected to, on account of their being such. 1 Swift\\u2019s Dig. 291. 1 Burr, 457. 3 T. R. 554. But that consent and sanction have never been extended to the bills of insolvent institutions. Indeed, it would be absurd to say that a tender of the bills of an insolvent bank, as cash, would be good, unless objected to for being bills.\\nWe think that sound policy and the weight of authority is in favor of the doctrine, that the moment a bank fails to redeem its bills, and they become uncurrent at its place of doing business, they lose their quality of cash, and that the loss must fall upon those who then are the holders. A dif'ferent doctrine would open a great door for fraud.\\nIf a creditor receive by mistake any thing in payment different from what was due, and upon the supposition that it was the thing actually due, the debtor is not discharged, and the creditor, upon oftering to return that which he received, may demand that which is due by the contract. Marble v. Hatfield, 2 Johns. R. 455, and the authorities there cited. Chit, on bills, 185, n. g.\\nIn the case of Lightbody v. Ontario Bank, 11 Wend. R. 9, and also 13 Wend. 101, it was decided, that where bank bills are received in payment, and at the time of such payment the bank which issued the bills has in fact stopped payment, although the failure is not at the time known at the place of payment, the loss falls upon the party paying, and hot upon the party receiving the bills. The same doctrine has been recognized by a recent decision in New Hampshire. \\\"\\nIt does not appear that the defendant\\u2019s father was author jZed to make payment.. He was, inlaw, a mere stranger. See Paley on agency, 191.\", \"word_count\": \"2862\", \"char_count\": \"15762\", \"text\": \"The opinion of the court was delivered by\\nBennett, J.\\nIt is a principle of law, too well established to need authority, that where a bill of exchange, or note of a third person, is received in payment of a precedent debt, the risk of the insolvency of the maker is upon the party from whom the bill or note is received, unless there is an express agreement between the parties, tho^ the risk of the^ paper, in this respect, is to be the receiver's, or one is to be implied, from the facts and circumstances of the case ; and the great question is, whether this principle is applicable to paper issued by an incorporated bank.7 If it is true, that upon the payment of a bank bill in satisfaction of a precedent debt, in the absence of all other facts, there is an implied agreement that the insolvency of the bank is at the risk of the party receiving the bill; then it follows that the authorities applicable to bills of exchange, and promissory notes, do not apply to the case under consideration.. It is true, that by common consent, bank bills have, for the purposes of business, been treated as money; but this is a conventional regulation, for the convenience of business, and no! a legal one. No state is authorized to coin money, or pass any law whereby any tiling but gold and silver shall be made a legal tender, in payment of a debt. It was decided at the last term of this court in Rutland county, that a note payable in bank bills was not negotiable. Ante, 268. They cannot be recognized in the legal acceptation of the term as money, but it is wholly conventional. \\\\ This conventional understanding that bank bills are to pass as money, is founded upon the solvency of the bank, and upon the supposition that thS bills are equivalent in value to specie, and are, at any time, convertible into specie, at the option of the holder. Upon no other ground do bank bills, by common consent, pass as money ; and hence, there is an implied agreement of the parties, at the time the bills are passed, that they are equivalent to money; and they are paid by the one party and received by the other, or! that supposition ; and, unless this is the case, the one party does not pay what he supposes he pays, nor the other receive what he intends to receive. From this principle of common consent, that bank bills should pass as money, it is the implied understanding of the parties, that the receiver should take upon himself the risk of all after failures of the bank, but this principle cannot be carried any farther than this conventional regulation extends, and that is, to treat them as money, only so long as the bank, which issues them, continues to redeem them in specie, or at least in other bills equally acceptable as specie to the bill-holder.\\nWhen, therefore, a bank stops payment, the bills thereof cease, by this conventional arrangement, to be the representative of money; whether the particular bill-holder is apprised of that fact, or not; and, from that time, the bills of such bank resume .their legal character of promissory notes and mere securities for the payment of money. If they are afterwards passed off to a person equally ignorant of the failure of the bank, there can be no implied agreement from this conventional arrangement to treat them as money, so long as they are convertible into specie, that the receiver shall sustain the loss which had then already accrued to the bill-holder. It is difficult to see why there should be. a distinction between bank bills, after they cease to be, fry any conventional arrangement, the representative of money, and other promissory notes. The law is well settled in this and other states, that the payment of a debt in a forged or counterfeit bank bill, is not a satisfaction, though both parties are equally ignorant of the fact. See Markle v. Hatfield, 2 Johns. R. 458, where chancellor Kent reviews the authorities with much ability. The party paying must sustain the loss, or rather is not permitted to shift it upon the other party. The parties, in such case, act upon a mistake ; the thing paid by the one, and received by the other, is not what they suppose it to be ; and it would, indeed, be highly inequitable, that by this mistake the loss should be shifted from him, who had already sustained it, upon the other who was equally ignorant of the fact. In the case now before the court, there was a mutual mistake. The parties supposed the bills, when paid, were then convertible into specie, and equivalent to money ; and both acted upon this supposition., Common justice then forbids that this loss, already sustained, ; should by this mutual mistake, be shifted from the defendant to the plaintiff.- In the state of Alabama, in the case of howrey v. Murrill, 2 Porter's R. 280, a different doctrine is said to be established, though I have only seen a note of the case. In the case of Young v. Adams, 6 Mass. R. 182, a different doctrine is also incidentally thrown out; but the same question has been before the supreme court, and also the court of errors in the state of New York, in the case of Lightbody v. Ontario Bank, 11 Wendell's R. 9, and 13 do. 101, where the decision was in conformity with the views of this court, and we think this the better opinion, and well sustained on principle, and calculated to do the most equal justice.\\nIt is not the business of the officer, who receives a writ for service, to receive pay on the demand. He is only to serve the writ, and if the debtor pays the demand to the officer, he holds it as agent of the debtor, till he pays it to the creditor. The money in this case being paid to the creditor on the 29th of March, and after the bank had ceased to redeem its bills, is the same as if it had been then paid by the debtor.\\nThe statute requires notice to be given of the taking of a deposition, to the adverse party, if living within thirty miles of the place of caption. If he lives more than thirty miles therefrom, and has notice, though the deposition might have been taken ex parte, still this could be no objection to its admissibility. The 3d sect, of the statute, which requires ex parte depositions to be filed with the clerk of the court, thirty days before the session of the court in which the trial is to be had, cannot restrain the admissibility of a deposition taken with notice, though taken in a case where the deposition might have been taken ex parte.\\nWe discover no error in the proceedings of the court below, and the judgment is therefore affirmed.\"}"
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+"{\"id\": \"610702\", \"name\": \"Asaph Knapp & John Worden v. Martin Winchester\", \"name_abbreviation\": \"Knapp v. Winchester\", \"decision_date\": \"1839-02\", \"docket_number\": \"\", \"first_page\": \"351\", \"last_page\": \"356\", \"citations\": \"11 Vt. 351\", \"volume\": \"11\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-09-21T20:02:18.861595+00:00\", \"provenance\": \"Harvard\", \"judges\": \"\", \"parties\": \"Asaph Knapp & John Worden v. Martin Winchester.\", \"head_matter\": \"Asaph Knapp & John Worden v. Martin Winchester.\\nIt is tile duty of the cotinty court, in the trial of a case before the jury, . when there is no testimony tending to show any legal cause of action, to direct a verdict for defendant.\\nIn such case, the plaintiff, if he except to the decision, in arguing the case in this court, may consider every fact as proved, which the testimony has any legal tendency to establish, as stated in the bill of exceptions.\\nIn the action of trover, possession, whether rightfully or wrongfully obtained, is a sufficient title in the plaintiff, as against a mere stranger.\\nBut if that possession be voluntarily surrendered to another, the party must then depend upon his right of property.\\nA demand and refusal are no evidence of conversion, unless the thing demanded was, at the time, in the possession of the defendant.\\nTrover, for sundry articles of household goods.\\nPlea \\u2014 not guilty, and trial by jury.\\nIt appeared, on the trial in the county court, that, in the summer of 1836, one Pratt and his wife were living at New Fane, where said Pratt was confined in close jail, and his wife became sick, and one or both became chargeable, as paupers, to said town ; that an order of removal was thereupon obtained, treating said Pratt and wife as persons having their legal settlement in the town of Marlboro\\u2019, which town was notified of said order. Their settlement in Marlboro\\u2019 did not appear to have been ever disputed. It also appeared, that the plaintiff, Knapp, had previously contracted with said town of Marlboro\\u2019, to support the poor of said town, for the year \\u2019ending in March, 1837, for a specified sum ; that the plaintiff, Worden, had joined said Knapp in a bond to said town, to secure the fulfilment of said contract. And the evidence tended to prove that the plaintiffs were jointly concerned in supporting the poor of said town, for that year. It also appeared that, upon receiving notice of said order of removal, said town of Marlboro\\u2019 required of one or both the plaintiffs to support said Pratt and wife, as paupers belonging to said town; \\u2014 That the plaintiffs did thereupon take charge of, and support the wife of said Pratt for the remainder of said year, at considerable expense ; removing her first to Putney and afterwards to Marlboro\\u2019,andthat, with said woman, the plaintiffs received the property in question, being the household stuff and furniture of said Pratt and wife.\\nIt appeared that said Pratt absconded, upon getting released from his said confinement. The evidence tended further to show', that, at different times during the year aforesaid, the plaintiffs remonstrated with the overseers of the poor of Marlboro\\u2019, against supporting said woman, unless they could have the property aforesaid as a consideration, or part consideration, for so doing; insisting that while she continued to possess and own said property, she was not such a pauper as they were under contract to support. The evidence also tended to prove that the plaintiffs, for the reasons aforesaid, repeatedly claimed said property, and asserted their determination to retain the same to their own use, or to exact the value thereof; but it did not tend to prove that any of the overseers of the poor, or said Pratt or wife, ever acceded or assented to said claim of the plaintiffs. It further appeared that, after the year aforesaid had expired, one Kelsey contracted with said town of Marlboro\\u2019 to support the poor of said town, (including the said Mrs. Pratt,) for the year succeeding; that, upon the 4th day of April 1837, the defendant, being one of the overseers of the poor of said town, went with said Kelsey to the house of the plaintiff, Worden, where said property was, for the purpose of receiving said property, to the end that said Kelsey might take and keep the same, with Mrs. Pratt, and for her use and convenience ; that said Worden delivered the same, taking the defendant\\u2019s receipt of that date for said property, and knowing that it was to go immediately into the possession of said Kelsey, who then received and carried it away. On this occasion said Worden repeated to the defendant his claim to said property, and declared his intention still to have it, or its value. It was further proved that, on the 15th day of December, 1837, said Worden sent his brother, Nathaniel Worden, to demand said property of the defendant; that it was demanded in presence of said Kelsey; that in answer to said demand the defendant said the property was in said Kelsey\\u2019s possession, upon which Kelsey said, \\u201c Nathaniel cannot have it till my year is out.\\u201d The defendant said nothing further. It appeared that, at the expiration of said second year, said property, with Mrs. Pratt, was passed over by said Kelsey to one Morse, who succeeded Kelsey, in supporting the poor of said town.\\nUpon these facts, and the evidence aforesaid, the court decided that the action was not sustained, \\u2014 and a verdict was thereupon returned for the defendant. To which decision of the court the plaintiffs excepted.\\nR. M. Field, for plaintiffs.\\nI. Evidence was introduced on both sides, the truth of which ought to have been submitted to the jury. The court, however, took it all out of the hands of the jury, and decided that the action was not sustained. Here there was error.\\nII. Taking all the facts as found by the court, the plaintiffs were entitled to recover; for they proved (1.) a property in themselves, and (2.) a convers\\u00f3n by defendant.\\n1. As to the property.\\nThe goods in question were in the possession of the plaintiffs, claiming to hold them even as against Pratt, the owner, by virtue of a lien for moneys expended in support of Pratt\\u2019s wife.\\nThe sufficiency of this lien need not here be inquired into, as it is well settled that possession, simply, gives a special property, sufficient to maintain trover against all but the rightful owner. 1 Chit. PI. 173.\\nNor was this special property lost by parting with the possession under the circumstances of this case ; for\\n1'. Defendant set up a false claim of right in himself.\\n2. The plaintiffs qualified their delivery of the goods by an express reservation of their rights.\\n2. As to the conversion.\\nEvery disposition of goods in the way of sale, lease, loaning to use, &c., is a conversion.\\nThe defendant took the goods from plaintiffs and put them into the hands of Kelsey, under a contract, that he might use them for a year.\\nIt is no answer to say that plaintiffs knew that Kelsey was to take the goods, for the particular contract between defendant and Kelsey does not appear to have been known to plaintiffs. Besides, it was the folly of defendant, when he was apprised that plaintiffs did not yield their rights, to put the goods in such a situation that he could not restore them on/lemand.\\nThere was, then, a sufficient conversion, unless defendant acted under authority.\\n(1.) An authority from Pratt is not pretended.\\n(2.) An authority, incidental to the general powers of an overseer, cannot be contended for, as the law vests such power always in a guardian.\\n(3.) An authority expressed in, or incident to the contract of plaintiffs to support the poor of Marlboro\\u2019, for a year, does not extend to this case.\\nB. Kellogg, for defendant.\\nI. It does not appear that the plaintiffs ever had any right or title, in law, to the property in question, but, on the contrary, it was, and still continues, the property of the paupers.\\nII. The plaintiffs never had, in law, any possession of the property or any right to the possession.\\nIII. There are no facts which show that the defendant was guilty of a conversion of the property.\\n1. It was not tortiously taken by the defendant from the plaintiffs, but was delivered by them.\\n2. It passed directly from the plaintiffs, with their knoioledge and consent and delivery, to Kelsey, to be by him kept with Mrs. Pratt, and for her use.\\n3. Though the case finds a demand made upon the defendant for the property, and his neglect or omission to deliver the same, yet the reply of the defendant to the demand, \\u201c that the property was at Kelsey\\u2019s\\u201d so explains the neglect to deliver it as to show there was no conversion of the property*\\nA demand and refusal is not an actual conversion, but on evidence of it and subject to explanation, and, if it appears that defendant has not been guilty of an actual conversion, the demand and refusal amount to nothing. 2 Phillips\\u2019 Evidence, 119. Smith v. Young, 1 Camp. R. 440.\\nIY. To sustain an action of trover, it is necessary to prove a right of property and right to possession in the plaintiff, except that, perhaps, a right to possession, as against a stranger, would be sufficient. Heylv. Burling, 1 Caines\\u2019 R. 18, note A.\\nAgain \\u2014 It is a good defence in trover to show that the property does not belong to the plaintiff, but to a third person. Schermerhorn v. Van Volkenburgh, 11 Johns. R. 529.\\nIn the present case, the plaintiffs neither had the right of property, nor the right of possession, and if both had been in the plaintiffs, inasmuch as there was no conversion of the property by the defendant, the court were right in deciding that the action was not sustained.\", \"word_count\": \"2228\", \"char_count\": \"12835\", \"text\": \"Redfield, J.\\nTwo questions arise in the present case.\\n1. Have the plaintiffs shown any. sufficient property to maintain the action ?\\n2. Has the defendant been guilty of a conversion ?\\nThe case states, that testimony was given tending to prove certain propositions, and, also, that certain facts were proved ; \\u2014 upon which the court decided, that the plaintiffs could not recover. The plaintiffs now object, that the court decided upon the facts, as well as the law. This court see no reason for that objection. Whether the testimony is all given by plaintiffs or by both parties, if there is no conflict, it is usual to state that such facts, as the testimony detailed, were proved, and that thereupon the court held the plaintiff could not recover.\\nSometimes the testimony is stated, and the case is concluded by the court, charging the jury, that if all the evidence is believed, still the plaintiffs cannot recover. And in other cases, the testimony being detailed at length, the court direct a verdict. The manner of making up the case is merely formal, and different judges, on the circuits, adopt different modes. The substance of the thing is, that the court direct a verdict. In such case, where the party excepts, the testimony should either be detailed, or every distinct proposition, whleh the testimony tended to pfove, should be stated; and, in either case, the party excepting has a right to the most favorable view of his case, i. e. he may consider every thing as found in the ease, which the testimony had any legal tendency to establish.\\nIn this view of the case, were the two propositions, above ) stated sufficiently proved? It is not pretended that the plaintiffs showed any general property in the things sued for. They belonged to Pratt, and were in'the custody of his wife. She had them for her own convenience, while with the plain- , tiffs. She gave no consent to plaintiffs' retaining them, neither did Pratt. The overseers of the poor had no right, nor did they attempt, to convey any interest to plaintiffs. The plaintiffs' right, then, after Mrs. Pratt left, was only that of a mere naked possession. This of itself is a sufficient title to sustain trover against any, but the one lawfully entitled to the possession. In this respect it matters not whether the pos- ' session be rightful or obtained by foice or fraud. It is a sufficient title, in either case, to maintain trover against a mere stranger. But in the present case, the plaintiffs surrendered their possession for the benefit of Mrs. Pratt. Whatever right, then, they had acquired by that possession was as effectually gone, as if they had never had the possession. The plaintiffs did, indeed, at the time of giving up their possession, enter a protest against being thereby concluded in asserting their rights to the property. But this will not avail them as a substantial ground of recovery. It prevents any inference against them, but is no ground of inference in their favor. They did not even require of the defendant, on receiving the property, to stipulate a return of it. The receipt given is merely evidence of the possession having passed over to defendant by consent of plaintiffs. There is, then, no evidence in the case, tending to show any such right of propei'ty in the plaintiffs, as will warrant a recovery.\\nThe court findj no evidence of conversion by defendant. The taking was by consent of plaintiffs. The use was consistent with the intent for which it was delivered. The demand and refusal could be no evidence of conversion, the possession, at the time, not being in defendant, Smith v. Young, 1 Campbell, 440. Rice v. Clark, 8 Vt. R. 109.\\nJudgment affirmed.\"}"
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+"{\"id\": \"613509\", \"name\": \"Asaph Pierce v. Don P. Carpenter\", \"name_abbreviation\": \"Pierce v. Carpenter\", \"decision_date\": \"1838-03\", \"docket_number\": \"\", \"first_page\": \"480\", \"last_page\": \"481\", \"citations\": \"10 Vt. 480\", \"volume\": \"10\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:05:06.259335+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Asaph Pierce v. Don P. Carpenter.\", \"head_matter\": \"Asaph Pierce v. Don P. Carpenter.\\nSchool districts must be composed of territory, and have geographical limits. These limits must be defined by the vote of the town meeting, or such directions must be given by the vote, as that the limits may be ascertained. ti\\nThis was an action of trespass for a cow. Plea \\u2014 the general issue, and notice that the cow in question was taken by virtue of a process against school district No. 4, in the town of Moretown. The regularity of the process, and the taking of the cow under such process, were admitted. The defendant proved that the plaintiff had, for more than ten years, resided within the limits of school district No. 4, in More-town, up to the commencement of the present action, unless the limits of said district were altered by a recent vote of the town, and that, during all that time, and for years before, said school district had been reputed and known as a school district, by certain limits, including the farm on which the plaintiff resided.\\nThe plaintiff offered evidence of the proceedings of the town of Moretown, at their annual March meeting, in the year 1836, by which, in pursuance of an article in the warning, it was voted to erect certain individuals, including the plaintiff, into a separate school district, and also further proceedings of such district towards an, organization. It also appeared that this vote, at the adjourned meeting in April following, was rescinded.\\nThe plaintiff also introduced a copy, from the records of said Moretown, of a survey of the said separate district, which included the plaintiff\\u2019s farm. But it did not appear that such survey was made by the authority of the town.\\nThe county court directed a verdict for the defendant, to which direction the plaintiff excepted.\\nW. Upham, for plaintiff.\\nP. Dillingham, jr. and L. B. Peek, for defendant.\\n1. The vote, setting off the plaintiff and others into a district by themselves, is void. The act of 1827, 2 Comp. stat. $ 2, p. 136, requires that, when a new district is created, it shall be defined by geographical limits, and be made to consist of territory, and not of persons. By the vote in question, the new district is made to consist of persons, and not of territory. This does not answer the requirements of the statute. Gray v. Sheldon, 8 Vt. R. 402. Cutting v. Stone} 7 do. 471. Withington v. Everleth, 7 Pick, 10Q. Perry v. Dover, 12 do. 206. Johnson v. Dole, 4 N. H. Rep, 478. The record of the survey does not cure the objection, as it does not appear by whom, or by whose authority it was made. To give it validity, it should appear to have been made by the direction of the town. The difficulty is, there is no vote of the town authorizing or recognizing the survey.\\n2. The vote, passed at the adjourned meeting in April, rescinding the first vote, destroyed its effect. These votes are to be regarded as having been passed at one and the same meeting. The right of towns to create new districts, and to alter or abolish existing districts, is clearly recognized by the act of 1827 ; and, as the town had the power to divide district No. 4, at their annual meeting in March, so the same authority warranted the vote, at the adjourned meeting, avoiding that act.\", \"word_count\": \"808\", \"char_count\": \"4574\", \"text\": \"The opinion of the Court was delivered by\\nCollamer, J.\\nSchool districts, by our statute, must be formed by the inhabitants of the town, at a legal meeting, warned for that purpose, and be composed of territory with geographical limits, defined by such meeting. This is clearly necessary, when we consider, that all land is taxable in the district where situated, and the listers are required, in the list, to designate in what district it is situated. This principle was decided in Gray v. Sheldon, 8 Vt. R. 402. In this case, the vote of the town was thus ; \\\" voted that A Pierce,\\\" and others named, \\\" be set into a district by themselves.\\\" This speaks only of persons. It makes no intimation of land, much less defines any. It is impossible to say this defines and determines the limits, as the statute requires.\\nThe plaintiff puts into the case, what is called, a survey of this contemplated district, which he insists defines it. The law requires that the toion shall define the limits. This survey is entirely without authority or direction from the town, nor is there any proof that it was ever recognized, approved, or ratified by the town. The limits must bo defined by the vote of the town, or the vote must contain such directions as will render its limits capable of being definitely ascertained.\\nJudgment of the county court affirmed.\"}"
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+"{\"id\": \"613542\", \"name\": \"Bradford Freeman v. Carlos Carpenter\", \"name_abbreviation\": \"Freeman v. Carpenter\", \"decision_date\": \"1838-02\", \"docket_number\": \"\", \"first_page\": \"433\", \"last_page\": \"435\", \"citations\": \"10 Vt. 433\", \"volume\": \"10\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:05:06.259335+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Bradford Freeman v. Carlos Carpenter.\", \"head_matter\": \"Bradford Freeman v. Carlos Carpenter.\\nA two year old heifer, not with calf, is exempt from attachment and exo cution, if the debtor has no other cow*\\nTrespass, for taking a two year old heifer.\\nThis case was submitted to the county court, upon the following statement of facts.\\nThe defendant, as constable of Orange, in the spring of 1837, attached the heifer in question, at the suit of Currier &. Bailey, who recovered a judgment in said suit, against the . plaintiff and took out a writ of execution thereon, and delivered it to the defendant, and the defendant, as constable as aforesaid, levied the execution upon the heifer, and sold her as the law directs, to satisfy said judgment. The heifer, when so taken and sold, was the only cow kind owned by the plaintiff, had never had a calf, nor was she with calf at the time of the taking, and was two years old in the spring of 1837. If, from these facts, the county court should be of the opinion that said heifer was exempt from attachment at the time when she was taken and sold, then the plaintiff should recover $9,50, damages, and his costs ; if otherwise \\u2014 \\u25a0 then the defendant to recover his costs.\\nThe county court rendered judgment for the defendant, and the plaintiff excepted.\\nN. Kinsman, for plaintiff.\\n1. The plaintiff contends that the heifer was exempt from attachment, and that no other rational construction can be given to our statute, The court say, in the case of Leavitt v. Metcalf, 2 Vt, R. 342, that our statute, exempting .certain property from attachment, is remedial, and must be liberally expounded in favor of humanity. This doctrine is sustained by the decision in the case of Haskillv. Andros, 4 VtR. 609,\\n2. In the case of Dow v. Smith, 7 Vt. R, 465, the court decided that a two year old heifer was exempt from attachment and levy of execution. In that case, the heifer was with calf. The court, in their decision, went no farther than the case required them to go. It is believed, that there is no distinction, according to a correct .construction of the statute, between that cage and the present one.\\nL. B. Peck, for defendant.\\nThe statute, by which the plaintiff claims the heifer to be exempted from execution, is in derogation of the common law rights of the creditor, and should not be extended beyond the plain intent and meaning of the legislature.\\nIt is most obviously the object of the act, in exempting a man\\u2019s last cow from attachment, to place beyond the reach of creditors that animal, which contributes so materially to the comfort and convenience of a family.\\nThe animal no doubt is included in the exception for the sake of her milk, otherwise an ox or steer might as well have been exempted. The legislature, then, could not have intended by the term cow, a heifer, which is not, and may not for years be productive. If a two year old heifer, under such circumstances, falls within the statute, so does a heifer calf six weeks old. But neither is within the letter or spirit of the act. It is true, the court decided in Dow v. Smith, that a heifer forward with calf, is exempt from execution ; but, it is believed, the court will not go any farther than that case goes.\", \"word_count\": \"906\", \"char_count\": \"5043\", \"text\": \"The opinion of the court was delivered by\\nWilliams, C. J.\\nIt is to be regretted that we are so often called on to decide questions, arising under the statute in question. The courts have uniformly been disposed to give it a liberal exposition. The articles exempted are, generally, of small comparative value, and it would be productive of more unhappiness and distress to the debtor to permit them to be taken by attachment and execution, than of real substantial benefit to the creditor. The statute, in terms, exempts oiie cow from attachment and execution. Possibly, if it were a penal statute, it might be considered that the term only applies to the animal after she had brought forth a calf. This is, undoubtedly, not only the common, but the correct meaning of the term. In the case of Dow v. Smith, 7 Vt, R. 465, it was considered that the term made use of had, in this statute, a more extensive meaning, and included a heifer, adopting the definition which, in some dictionaries, and by some writers, is given to that term, to wit, a young cow. The decision in that case, must govern the one before us. If the court correctly decided that the exemption in the statute extended to a heifer, or young cow, it cannot and ought not to be made a subject of inquiry whether she was, or was not forward with calf, or with calf at all. I presume this did not enter into the consideration of the court in making the decision. The correct definition of the term, heifer, is a female calf of the bovine species, from the end of the first year, until she has had a calf, and such animals, according to the decision before referred to, are exempt from attachment and execution, under the statute.\\nThe judgment of the county court must be reversed, and judgment rendered for the plaintiff, to recover the sum of nine dollars and fifty cents, as agreed on by the parties.\"}"
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+"{\"id\": \"688106\", \"name\": \"Edward Fenwick, et al. v. City of Burlington, et al.\", \"name_abbreviation\": \"Fenwick v. City of Burlington\", \"decision_date\": \"1997-12-12\", \"docket_number\": \"No. 95-554\", \"first_page\": \"425\", \"last_page\": \"437\", \"citations\": \"167 Vt. 425\", \"volume\": \"167\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:53:18.723560+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Gibson, Dooley, Morse and Johnson, JJ., and Cashman, D.J., Specially Assigned\", \"parties\": \"Edward Fenwick, et al. v. City of Burlington, et al.\", \"head_matter\": \"Edward Fenwick, et al. v. City of Burlington, et al.\\n[708 A.2d 561]\\nNo. 95-554\\nPresent: Gibson, Dooley, Morse and Johnson, JJ., and Cashman, D.J., Specially Assigned\\nOpinion Filed December 12, 1997\\nMotion for Reargument Denied January 26, 1998\\nDouglas D. Le Brun of Dinse, Erdmann, Knapp & McAndrew, EC., Burlington, for Plaintiffs-Appellees.\\nJanet Murnane, Burlington, for Defendant-Appellee City of Burlington.\\nRobert S. DiPalma of Paul, Frank & Collins, Inc., Burlington, for Intervenor-Appellant.\", \"word_count\": \"4431\", \"char_count\": \"27415\", \"text\": \"Dooley, J.\\nIntervenor-defendant George Procopio and plaintiff Edward Fenwick appeal from the Chittenden Superior Court's decisions resolving a longstanding dispute over plaintiff's construction of a house in Burlington, on a lot adjacent to intervenor's home. Intervenor appeals from the superior court's decision to (1) award plaintiff occupancy, building, and zoning permits; (2) deny intervenor damages; (3) deny intervenor an injunction against plaintiff to remove the house; and (4) deny intervenor a writ of mandamus against the City of Burlington to remove the house. Both parties appeal from the court's award of attorney's fees to intervenor. We affirm the court's decisions to deny injunctive relief and mandamus. We reverse the decision to require the City of Burlington to issue permits and a certificate of occupancy, and the calculation of the attorney's fees. We remand for further proceedings.\\nTo follow the facts in this case more easily, we have detailed them by relevant date:\\n1) October 13,1988: Plaintiff's permit to build an additional house on a 1.40-acre lot, which contains his home, was denied by the Burlington Planning Commission. The Commission treated the application as a request for a planned residential development (PRD) and denied it because (a) a zoning amendment pending before the Burlington Board of Aldermen increased the lot size requirement for a PRD to two acres; and (b) the access right-of-way was only twelve feet wide, and the zoning ordinance required a twenty-five-foot right-of-way. Intervenor opposed the permit at the public hearing, thereby qualifying as an \\\"interested person\\\" under Vermont's zoning act.\\n2) December 12, 1988: Allegedly on the advice of the planning commission, plaintiff appealed to the Burlington Board of Aldermen, pursuant to 24 V.S.A. \\u00a7 4443(c), for relief from the pending ordinance amendment increasing the minimum lot size for a PRD. The board refused to grant relief.\\n3) January 10,1989: Plaintiff appealed to the superior court within thirty days of the denial of the board of alderman, but almost ninety days from the planning commission action. He filed the notice of appeal with the planning commission as required by 24 V.S.A. \\u00a7 4471,4475, but neither he, nor the planning commission, sent a copy to intervenor. Intervenor was unaware of the appeal and did not enter an appearance.\\n4) May 21, 1990: The superior court granted plaintiff summary judgment on his planning commission appeal, without opposition from the City of Burlington, which had notice of the appeal. Based on the court order, the City gave plaintiff building and zoning permits on May 31.\\n5) August 1990: Intervenor discovered that plaintiff had been granted zoning and building permits when plaintiff moved heavy equipment onto his lot in order to begin construction. Intervenor petitioned the superior court for relief on August 14, arguing that he had been improperly denied notice of the appeal and that the summary judgment order was improper.\\n6) October 31,1990: The superior court granted intervenor relief from the May judgment. Intervenor immediately requested that the City revoke the permits, but the City failed to act. By this time, plaintiff had dug the cellar hole and was building the new house.\\n7) November 1990: Intervenor first counterclaimed against plaintiff for an injunction to remove the house and prohibit use of any new construction, damages, and attorneys fees; and cross-claimed against the City for an injunction to revoke all permits nunc pro tunc, and an injunction to enforce the City's zoning and planning ordinances. Thereafter, intervenor moved to dismiss plaintiff's appeal as untimely.\\n8) March 6, 1991: The superior court dismissed plaintiff's appeal because it was not filed within thirty days of the planning commission decision. The order did not specify its effect on the permits. Plaintiff appealed to the Supreme Court.\\n9) May 1991: The City issued plaintiff a notice of zoning violation because he had constructed, and was using, the new house without a zoning permit. It also issued a stop work order. Plaintiff apparently continued work on the house despite the city notice and order. This action led to skirmishing through the Fall and Winter, with plaintiff relying on the stay caused by the notice of appeal to allow him to continue using the new house, and intervenor con tinuously demanding that the City take action against plaintiff.\\n10) April 2,1992: In response to a motion by intervenor, the superior court ordered that plaintiff \\\"cease and desist all further construction and improvement, use and occupancy of the premises that are the subject of this proceeding . unless and until expressly permitted to do so by an order of a court.\\\"\\n11) November 12,1992: This Court decided Fenwick v. City of Burlington, No. 91-503 (Vt., Nov. 12, 1992) (mem.), holding that plaintiff's appeal from the planning commission to superior court was untimely and affirming the dismissal of the appeal.\\n12) April 8, 1993: The planning commission considered plaintiff's new application for zoning and building permits and denied it because the proposal did not meet the PRD two acre minimum-lot-size requirement, as specified in the current zoning ordinance. The commission rejected plaintiff's argument that he had a vested right to use the ordinance provision in effect in 1988, which had no minimum lot size.\\n13) May 4, 1993: Plaintiff appealed the planning commission's second denial to the superior court, and intervenor intervened.\\n14) July 27, 1993: Intervenor filed a motion to dismiss plaintiff's second appeal and for summary judgment on his counterclaim and cross-claim.\\n15) September 2, 1993: City also moved to dismiss the second zoning appeal, and for the first time sought an injunction to remove the house. In response, plaintiff amended his complaint to allege that the City had violated his civil rights by directing him to the board of aldermen and, as a result, denying him the ability to appeal the original denial of a PRD permit.\\n16) January 6, 1995: The superior court granted interve-nor's motion to dismiss plaintiff's appeal from the second planning commission denial. The court, however, denied intervenor's request for injunction and mandamus, and set a hearing date to decide the amount of damages. The court did not address the City's request for an injunction, nor plaintiff's civil rights complaint.\\n17) May 11,1995: The superior court found that intervenor had suffered no damages, but awarded attorney's fees from November 12, 1992 (the decision date of Fenwick v. City of Burlington in this Court).\\n18) June 1, 1995: The superior court ordered the City to grant plaintiff all building, zoning, and occupancy permits. Upon denying a motion to reconsider, the court stated that \\\"Judge Katz had assumed that the house would be occupied.\\nIt was an oversight not to have dealt with this issue explicitly.\\\"\\nThe three decisions that are the subject of this appeal are the January 1995 decision denying intervenor a mandatory injunction to force plaintiff to tear down the new house and a writ of mandamus against the City to force it to seek such relief; a May 1995 decision awarding attorney's fees; and a June 1995 decision requiring the City to issue all permits. Before addressing the specific challenges to these orders, it is helpful to look at their rationale.\\nThe January 1995 order was issued to resolve all outstanding issues between intervenor and plaintiff. This decision dismissed plaintiff's attempt to obtain a permit through appeal of the Burlington Planning Commission's second decision against him. The superior court ruled that the second permit request was substantially identical to the first one and, for that reason, could not be heard by the planning commission. Plaintiff has not appealed this decision.\\nThe decision also addressed intervenor's request for a mandatory injunction against plaintiff and a writ of mandamus against the City. The court held that intervenor's arguments \\\"fail to support a balancing of equities and relative injury which would justify removal of the structure,\\\" primarily because plaintiff acted pursuant to zoning and building permits that were not revoked until after the structure was erected. It held, however, that intervenor was entitled to damages if he could show a diminution in the value of his property as a result of plaintiff's construction.\\nAs to the writ of mandamus, the court ruled that such relief was inappropriate when intervenor had other remedies at law which he did not use. The court held that intervenor should have appealed the inaction of the zoning administrator to the zoning board, and failing that action, could not obtain mandamus. Alternatively, the court ruled that mandamus could not be used when plaintiff acted pursuant to a facially valid permit.\\nIn the May decision, the superior court ruled that intervenor failed to show that, he suffered any damage from plaintiff's construction. It ruled that intervenor was not entitled to attorney's fees for his original successful effort to have plaintiff's untimely appeal dismissed, but when plaintiff refused to abide by the decision of this Court affirming the denial, intervenor was entitled to attorney's fees for his subsequent enforcement actions.\\nIn the June decision, the superior court ordered the City to grant plaintiff all necessary building, zoning and occupancy permits. The court issued the occupancy permit after recognizing that Judge Katz had not explicitly dealt with the occupancy issue in his earlier order, and had just assumed that the house would be occupied.\\nI.\\nWe begin with intervenor's claim that the court erred in failing to award him a mandatory injunction requiring plaintiff to tear down his new house. Intervenor's position is that plaintiff acted in bad faith, failing to give him notice and going forward with construction after it became clear that he no longer had valid building and zoning permits. \\u2022Plaintiff responds that the denial of the injunction was within the court's discretion.\\nThe standards for issuance of mandatory injunctions in zoning cases were first established in Thompson v. Smith, 119 Vt. 488, 129 A.2d 638 (1957), in which this Court emphasized that a mandatory injunction is \\\"extraordinary and severe relief.\\\" Id. at 509, 129 A.2d at 651. We held that the court must \\\"consider and weigh the relative convenience or inconvenience, the relative injury sought to be cured as compared with the hardship of injunctive relief,\\\" and also consider \\\"an award of damages in lieu of injunction.\\\" Id. at 509, 129 A.2d at 651-52. Later cases have reiterated the use of a balancing approach. See Richardson v. City of Rutland, 164 Vt. 422, 426, 671 A.2d 1245, 1248 (1995); Swanson v. Bishop Farm, Inc., 140 Vt. 606, 610, 443 A.2d 464, 466 (1982), overruled on other grounds in Soucy v. Soucy Motors, Inc., 143 Vt. 615, 619, 471 A.2d 224, 226 (1983); Town of Bennington v. Hanson-Walbridge Funeral Home, Inc., 139 Vt. 288, 295-96, 427 A.2d 365, 370 (1981).\\nIn considering whether to grant a mandatory injunction, the court's inquiry necessarily involves a consideration of all relevant equities. See Town of Shapleigh v. Shikles, 427 A.2d 460, 464-65 (Me. 1981) (in considering mandatory injunction for removal of building in violation of zoning ordinance, court must consider \\\"basic principles of justice and equity\\\" and apply the \\\"conscience of the chancellor\\\"); see generally H. McClintock, Handbook of the Principles of Equity \\u00a7 144 (2d ed. 1948) (court must balance all the equities, including the relative hardships to the parties, their conduct in relation to the transaction, the nature of the interests affected, and the relative proportion of interests lost by the course of action taken). Because of the breadth of the inquiry, the trial court must be accorded wide discretion, reviewable here only for abuse. See Richardson, 164 Vt. at 427, 671 A.2d at 1249 (courts have wide range of discretion in framing equitable decrees).\\nWe believe that the decision not to award intervenor a mandatory injunction was within the trial court's discretion. On the one hand, plaintiff built the house when his right to do so was being challenged, and in that sense, took the risk that he would not ultimately prevail. See Bird v. Delaware Muncie Metropolitan Plan Comm'n, 416 N.E.2d 482, 490 (Ind. Ct. App. 1981) (where defendant continued work after revocation of permit and defied stop-work order, severe remedy of ordering removal of illegal structures is justified). On the other hand, plaintiff apparently constructed the exterior of the building when he had building and zoning permits that authorized this construction. See Hargreaves v. Skrbina, 662 P.2d 1078, 1080 (Colo. 1983) (defendant acted in good faith despite continuing construction after he became aware of setback violation because he relied upon building permit). Although intervenor sent a stream of letters to city officials, he never sought revocation of the permits until he filed such a request in superior court in February 1992. Intervenor failed to receive proper notice of the zoning appeal, but it is not clear that plaintiff was responsible for the failure to provide notice. See V.R.C.P. 74(b) (1971) (in version of rule in effect when plaintiff appealed to superior court, appellant must file notice of appeal with clerk of administrative body who is responsible for notifying interested parties).\\nAlso important to the balancing of the equities were the relative hardships caused by either the status quo or an order to remove the building. Neither party quantified these impacts, but the record is sufficient to provide some sense of them. Plaintiff built the house about twenty-five feet from the site of intervenor's backyard pool. The building reduced intervenor's privacy in using the pool, but had no adverse impact on the value of his property. Although we do not know the cost of tearing down plaintiff's building, we can assume it would be substantial. We can also assume that the value of plaintiff's property with the second house would be greater than without it.\\nIntervenor argues that because plaintiff provided no evidence of the hardship of tearing down the house, the court could not consider it. Intervenor was seeking the extraordinary and severe remedy of a mandatory injunction and bore the burden of making the record to support it. We think that the lack of economic evidence of impacts stands against intervenor, not in his favor.\\nRelying primarily on In re Fairchild, 159 Vt. 125, 616 A.2d 228 (1992), intervenor next argues that the court erred in not granting him a writ of mandamus against the City. In his cross-claim, interve-nor requested an order requiring the City to revoke all permits nunc pro tunc and \\\"to enforce the regulatory and enforcement provisions of its planning and zoning ordinances.\\\" In the summary judgment motion, intervenor's request was for an order requiring the City to seek the removal of plaintiff's structure \\\"either through its regulatory process or through this proceeding.\\\"\\nIn Fairchild, we summarized the requirements for a writ of mandamus:\\n(1) the petitioner must have a clear and certain right to the action sought by the request for a writ; (2) the writ must be for the enforcement of ministerial duties, but not for review of the performance of official acts that involve the exercise of the official's judgment or discretion; and (3) there must be no other adequate remedy at law.\\nId. at 130, 616 A.2d at 231. The plaintiff in Fairchild owned land adjoining a building that was being used in violation of the zoning ordinance. We found .that the plaintiff was entitled to mandamus against the town zoning administrator, who refused to take any action to stop the violation. We reasoned that the neighbor had a clear right to enforcement of the zoning ordinance, the zoning administrator's duty to enforce the zoning ordinance was ministerial, and the plaintiff had no other adequate remedy at law.\\nThe Fairchild holding was distinguished in Richardson v. City of Rutland, 164 Vt. at 425, 671 A.2d at 1247, a case in which \\\"the zoning administrator was dilatory [but] he did act\\\" on a complaint that a restaurant had improperly built part of its parking lot in a residential zone. We held that mandamus was appropriate when the zoning administrator refused to act, but not where the administrator does act because \\\"the nature of the remedy sought is discretionary.\\\" Id. at 425, 671 A.2d at 1248. In the latter case, the zoning administrator had not failed to discharge a ministerial duty.\\nThis case is governed by Richardson. The City's obligation was unclear as long as the first zoning appeal was pending in this Court because it had been ordered to provide permits to plaintiff. Nevertheless, it issued a stop-work order to prevent further construction and never issued a certificate of occupancy. Further, it sought a removal order in this proceeding. The City did not fail to discharge a ministerial duty.\\nII.\\nNext, intervenor and the City argue that the superior court erred in directing that the City issue all permits to plaintiff to allow him to occupy and use his new structure. They claim that the issuance of the permits was inconsistent with the earlier decisions dismissing plaintiff's appeals from the planning commission denials of the permit requests. Plaintiff responds that the issuance of the permits was a necessary consequence of the decision to deny intervenor an injunction. This was the rationale on which the superior court made its ruling.\\nWe have a fundamental difficulty with the decision to require issuance of the permits. At the time of the January 1995 decision, there were two requests for injunctive relief pending. The first had been made by intervenor and was explicitly addressed in the court's decision. We have affirmed that decision above.\\nThe second request had been made by the City of Burlington on September 2,1993. There is no indication that the court acted on this request in its January 1995 order. In fact, the scope of this order was unclear, and plaintiff sought clarification of its effect on the civil rights claims against the City asserted in his amended complaint. The court responded that the decision was not a final determination in either zoning appeal case: \\\"It attempts to resolve issues raised by motion, but not resolve every issue in either case.\\\"\\nNormally, the fact a decision did not reflect that more than one party sought the same relief would be inconsequential. In this case, however, the entitlement of the parties to that relief was different. Although intervenor was required to show that the balance of equities favored the issuance of a mandatory injunction to remove the structure, and failed to make this showing, the City could obtain relief without this showing. See Town of Sherburne v. Carpenter, 155 Vt. 126, 131, 582 A.2d 145, 148 (1990). If the zoning violation is substantial and involves conscious wrongdoing, the City is entitled to an injunction, including a mandatory injunction to remove an offending structure, as a matter of course. See id. at 131-32, 582 A.2d at 148-49. The court's decision did not address this standard.\\nThe City's burden is not the only difference. Plaintiff responded to the City's request for relief by amending his complaint to assert that the City had violated his civil rights by misdirecting him to the board of aldermen so that he forfeited his appeal right and by refusing to recognize his vested right to rely on the PRD rules prior to the amendment to require a two-acre minimum lot size. He had made clear in earlier filings that he believed that the City was estopp\\u00e9d from seeking any relief. None of these issues was addressed in the January 1995 decision.\\nWe recognize that the City was responsible, in large part, for the failure of the court to address its claim for relief. The City buried its request for relief in a response to intervenor's motion for summary judgment without clearly identifying that it was independently seeking injunctive relief. Rather than pointing out that the court had failed to address the claim for relief, the City actually opposed plaintiff's motion for clarification of the January 1995 decision and further obfuscated the situation. Nevertheless, because of the public interest in enforcement of the zoning law, and the interrelationship of the City's action with intervenor's request for a writ of mandamus against it, we must hold that the City's request for a mandatory injunction remains unresolved.\\nSince the City has a pending request for a mandatory injunction, which the superior court has not yet resolved, it was premature to order the City to issue permits to plaintiff to allow him to occupy and use the disputed structure. We cannot agree with the court's decision that the issuance of the permits was a necessary consequence of the denial of relief to intervenor.\\nIII.\\nFinally, we address the issue of attorney's fees. The superior court awarded intervenor attorney's fees incurred after this Court's 1992 decision on plaintiff's appeal. The court reasoned that intervenor's litigation expenses were unreasonably increased as a result of plaintiff's refusal to accept that decision such that an award of attorney's fees was justified.\\nPlaintiff challenges the ruling, arguing that the facts demonstrate that he was always entitled to a zoning permit and was denied the permit only because of the arbitrary decisions of the City and its action in causing him to lose his appeal rights. Thus, he argues that he should not have to pay intervenor's attorney's fees when it was clear that intervenor should never have prevailed. Intervenor argues, on the other hand, that fees should have been awarded for legal services from the point that he first had to intervene into the superior court appeal to protect his interests.\\nThe parties agree that the determinative precedent is In re Gadhue, 149 Vt. 322, 544 A.2d 1151 (1987), a case very similar to that before us. In Gadhue, the petitioner, a neighbor, appealed the grant of a variance to a landowner who proposed to build a commercial structure. This Court found that the variance had been granted improperly and reversed the variance. During the time that the appeal was pending in this Court, however, the landowner built the structure in issue. \\\"Consequently, [petitioner], having successfully vindicated both a private and public right, was compelled to reenter the Chittenden Superior Court to seek a mandatory injunction in order to give meaning to this Court's decision.\\\" Id. at 324, 544 A.2d at 1152. While the action was pending, the Town amended its zoning ordinance to allow the structure, mooting the injunction action, but leaving the petitioner's request for attorney's fees.\\nWe held that under equity principles petitioner could collect her attorney's fees because she \\\"was drawn into litigation beyond the point that should have been the natural culmination of her appeal\\\" as a result of landowner's action in building the structure. Id. at 329, 544 A.2d at 1155. We awarded attorney's fees for legal services rendered after the initial decision in this Court holding that the landowner did not have a right to a variance to build the structure.\\nIf anything, the case for attorney's fees here is stronger than that in Gadhue. In that case, the landowner had prevailed at the zoning board and superior court levels and built in reliance on those decisions. Here, plaintiff lost in the planning commission, obtained a building permit only because intervenor was not notified of the action, went ahead with construction even though he knew his building permit was suspect, and lost at every level thereafter. Intervenor was thrown into unnecessary enforcement action. The fact that plaintiff might have prevailed had he taken a timely appeal to superior court is irrelevant to the necessity and reasonableness of intervenor's actions.\\nGadhue calls for a functional analysis of the legal services involved in the request for fee reimbursement. To the extent that the legal services are aimed at enforcement of the decision to deny zoning approval, their cost is recoverable. To the extent the services are aimed at a favorable ruling on the right to a permit, their cost is not recoverable. In Gadhue, the line was relatively easy to draw because there was a clear point in time when petitioner's actions switched from opposing the landowner's zoning permit to enforcing the denial decision made by this Court.\\nIn this case, there is no clear temporal line. We agree with the superior court that intervenor cannot recover the cost of legal services incurred to reopen the initial superior court appeal, to have that appeal dismissed and to defend the dismissal in this Court. On the other hand, costs incurred in attempting to stop plaintiff from building the house while the case was going forward and in preparing the counterclaim for relief are recoverable even if they occurred before our appeal decision. Intervenor can also recover for all fees expended after our appeal decision, as the superior court held.\\nThe orders denying intervenor George Procopio an injunction and a writ of mandamus are affirmed. The order requiring the City of Burlington to issue building and zoning permits, and a certificate of occupancy to plaintiff is reversed. The order limiting intervenor to recovery of attorney's fees only for legal services rendered after November 12, 1992, the date of this Court's decision in Fenwick v. City of Burlington, No. 91-503, is reversed. The matter is remanded for proceedings not inconsistent with this opinion.\\nPlaintiff Edward Fenwick represents joint owners Clarence Greenwood and Janet Greenwood in this appeal.\\nThe May 1995 decision also determined that intervenor had suffered no economic injury and awarded no damages. Intervenor has not appealed this part of the decision.\\nThis case was decided on a motion for summary judgment filed by interenor. The only \\\"facts\\\" are contained in affidavits submitted by plaintiff and intervenor. Plaintiff's affidavit, dated August 31,1993 and attached to the response to the summary judgment motion, states that he relied on the building permit and stopped work when presented with a stop-work order by the City. It also states that he uses the structure for storage of his automobile. Intervenor's affidavit, dated July 23, 1995 and submitted with the motion for summary judgment, states that plaintiff uses the structure to park his car and that on July 2,1993 intervenor saw plaintiff work on the outside of the structure.\\nIn the cross-claim and motion for summary judgment, intervenor asked for the relief of an injunction against the City. The court characterized the request as one for mandamus, and intervenor has used this characterization here.\"}"
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+"{\"id\": \"740237\", \"name\": \"Bank of Montpelier v. Robert Russell and Others\", \"name_abbreviation\": \"Bank of Montpelier v. Russell\", \"decision_date\": \"1855-04\", \"docket_number\": \"\", \"first_page\": \"719\", \"last_page\": \"720\", \"citations\": \"27 Vt. 719\", \"volume\": \"27\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:57:47.351544+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Bank of Montpelier v. Robert Russell and Others.\", \"head_matter\": \"Bank of Montpelier v. Robert Russell and Others.\\nDeclaration on promissory note.\\nA declaration by the Bank of Montpelier that the defendants, by tbeir promissory note, at &c., promised the President, Directors and Company of the Bank of Montpelier, to pay them, &c., in the brief form which has been very generally used in this state, for declarations on promissory notes, without,any averment that the Bank of M. and the P., D \\u00abSc Co. of the Bank of M. were thejsame, and without any averment of the time and place of the promise, except in the statement respecting the date of the note, held sufficient on demurrer.\\nAsstoipsit. By the \\\"writ and declaration the defendants were notified to appear, &c., \\u201c then and there, in said court, to answer to \\u201c the Bank of Montpelier, at Montpelier, in the county of Washington, in a plea of the case for that the defendants, by their \\u201c promissory note, dated at Richmond, May 12th, 1853, for value \\u201c received, jointly and severally promised the President, Directors \\u201c and Company of the Bank of Montpelier, to pay them the sum \\u201c of five hundred and seventy dollars, in three months from date, \\u2014 \\u25a0 \\u201c which is unpaid, though demanded.\\u201d\\nTo this declaration, the defendants filed a general demurrer. The county court, March Term, 1854, \\u2014 Poland, J., presiding,\\u2014 adjudged the declaration sufficient.\\nExceptions by the defendants.\\nT. P. Bedfield for the defendants.\\nPeck 8; Oolby for the plaintiffs.\", \"word_count\": \"327\", \"char_count\": \"1939\", \"text\": \"By the court, Redfield, Ch. J.\\nThe only question raised in the present case is in regard to the sufficiency of the plaintiffs' declaration, upon general demurrer. It is in a brief form, which has been in very general use in the state, for many years, and always regarded, by this court as sufficient, in the ordinary case of natural persons being parties to the suit. An attempt is made to show that the plaintiff is not properly described, but we see no difficulty upon that ground.\\nJudgment affirmed.\"}"
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+"{\"id\": \"740318\", \"name\": \"Joshua Emery v. Sumner S. Thompson\", \"name_abbreviation\": \"Emery v. Thompson\", \"decision_date\": \"1854-04\", \"docket_number\": \"\", \"first_page\": \"614\", \"last_page\": \"616\", \"citations\": \"27 Vt. 614\", \"volume\": \"27\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:57:47.351544+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Joshua Emery v. Sumner S. Thompson.\", \"head_matter\": \"Joshua Emery v. Sumner S. Thompson.\\nLiability of owner of property. General authority of a clerk.\\nThe plaintiff, at the request of the defendant\\u2019s clerk, finished off a room, which the clerk intended to occupy, and afterwards did occupy, in a house which the plaintiff was building for the defendant, under a contract which did not include the finishing off of the room in question. Hildy that neither the defendant\\u2019s ownership of the property, or the general authority of the clerk, was sufficient to make the defendant liable for so finishing off the room.\\nBook account. The plaintiff contracted to build, and did build, for the defendant, a log house, for which he charged, and was allowed by the auditor, the price specified in the contract. He further charged the defendant, \\u201c for finishing off a room up-stairs, $15.00,\\u201d in reference to which the auditor reported the following facts. The defendant was a contractor for the construction of a part of the Atlantic and St. Lawrence railroad, in the town of Wenlock, and had the house built to be occupied by Geo. Lobdell, who was employed by him, as his agent and travelling boss. The room was not to be finished, under the contract, and neither the defendant or Lobdell.requested the plaintiff to finish it off, but they knew of his doing it, at the time. Charles Thompson, a clerk of the defendant, wishing to occupy the room, requested the plaintiff to finish it off as he did, and the said Charles afterwards occupied it. The plaintiff supposed, at the time, that the defendant would be bound to pay him for it. The authority of the said Charles did not extend beyond that incident to his clerkship. The auditor disallowed the charge, and the county court, December Term, 1853,\\u2014 Poland, J., presiding, \\u2014 accepted the report, and rendered judgment thereon for a balance reported by the auditor in favor of the defendant.\\nExceptions by the plaintiff.\\nH. F. Prentiss for the plaintiff.\\nThe house was the property of the defendant, and the finishing of the room was adding to the value of the house, the benefit of which accrued to the defendant, and the defendant should pay for the same. Dyer v. Jones, 8 Vt. 205 ; Blood v. Enos, 12 Vt. 625 ; Gilman et al. v. Hall, 11 Vt. 510.\\nAs to the authority of a clerk, Davis v. Waterman, 10 Vt. 526.\\nJ. L. Edwards for the defendant,\\ncited Hayden v. Middlesex Turnpike Co., 10 Mass. 397 \\u2014 403; Mann v. Commission Co., 15 Johns. 44; Huntington v. Wilder, 6 Vt. 334; Rossiter v. Rossiter, 8 Wend. 594; Parks v. Turnpike, 4 J. J. Marsh. 456; Beals v. Allen, 18 Johns. 393; Lance v. Barrett, 1 Hill, S. C., 204; Denison v. Tyson, 17 Vt. 549; Brown v. Billings, 22 Vt. 9; Soule v. Dourghty, 24 Vt. 92.\", \"word_count\": \"667\", \"char_count\": \"3723\", \"text\": \"The opinion of the court was delivered by\\nBennett, J.\\nThe only dispute in this case seems to be about an item of $15, for the finishing off a room in the chamber.\\nThis was not within the contract for building the house. The auditor, in effect, finds that this room was finished off at the request of the defendant's clerk. He wished to occupy this chamber, for his own personal convenience. The auditor negates the fact that this room was finished by the express or implied consent of the defendant, unless it is to be inferred, as a matter of law, from his ownership of the house, or from the fact that Charles Thompson was his clerk; and we think this cannot be done.\\nThough the value of the house may be improved by this work, still, to render the defendant liable, it must have been done by his request, expressed or implied, as matter of fact. The clerk's agency did not, as matter of law, extend to the building or finishing of houses. He might as well have bound the defendant by the purchase of a farm.\\nJudgment affirmed.\"}"
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+"{\"id\": \"740353\", \"name\": \"William E. Green & John E. Roberts v. T. D. Chapman, G. W. Benedict, C. F. Ward, A. S. Dewey, J. K. Converse, B. W. Smith, J. E. Brinsmaid, C. Hildreth, William Brinsmaid, T. A. Peck, E. Smith, S. Wires, W. W. Peck, B. Rixford, T. M. Parker, E. Peterson, J. B. Wheeler, J. H. Robinson, R. W. Chase, E. Lyman, A. Peck, L. Underwood, C. Goodrich, W. Tharp, C. M. Davey, G. W. Allen, J. S. Pierce, C. F. Davey, M. Noyes, L. S. Drew, R. Batchelder, I. Dow, W. T. Smith, R. M. Guilford, G. T. Blodgett, E. S. Smith, L. A. Edgell, C. F. Warner, L. E. Chittenden, N. Allen, D. B. Buckley, C. P. Higbee, B. M. Webb, J. W. Allen, R. Blinn, C. L. Nelson, A. S. Johnson, C. H. Dorr, G. Lowry, J. Herrick, W. Lyman, O. J. Walker, J. J. Duncklee, L. G. Bigelow, L. P. Blodgett, G. Peterson, J. K. Gray, B. B. Newton, G. F. Houghton, E. B. Whiting, W. C. Smith, A. S. Hyde, G. M. Wells, Geo. P. Berkley, L. B. Platt, M. B. Catlin, C. McNiel, L. Stone, L. D. Stone, N. Guindon, L. Orvis, W. H. White, W. E. Green, C. T. Stevens, C. O. Stevens, J. H. Bowman, W. R. Bixby, W. A. Newman, C. Bradbury, Benj. Sherman, C. P. Austin, G. A. Austin, Sally Austin, J. Boynton, E. M. Wright, J. L. Hammond, M. A. Clark, J. F. Pierce, P. G. Ladd, D. Adams, and J. C. Park\", \"name_abbreviation\": \"Green v. Chapman\", \"decision_date\": \"1855-01\", \"docket_number\": \"\", \"first_page\": \"236\", \"last_page\": \"240\", \"citations\": \"27 Vt. 236\", \"volume\": \"27\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:57:47.351544+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William E. Green & John E. Roberts v. T. D. Chapman, G. W. Benedict, C. F. Ward, A. S. Dewey, J. K. Converse, B. W. Smith, J. E. Brinsmaid, C. Hildreth, William Brinsmaid, T. A. Peck, E. Smith, S. Wires, W. W. Peck, B. Rixford, T. M. Parker, E. Peterson, J. B. Wheeler, J. H. Robinson, R. W. Chase, E. Lyman, A. Peck, L. Underwood, C. Goodrich, W. Tharp, C. M. Davey, G. W. Allen, J. S. Pierce, C. F. Davey, M. Noyes, L. S. Drew, R. Batchelder, I. Dow, W. T. Smith, R. M. Guilford, G. T. Blodgett, E. S. Smith, L. A. Edgell, C. F. Warner, L. E. Chittenden, N. Allen, D. B. Buckley, C. P. Higbee, B. M. Webb, J. W. Allen, R. Blinn, C. L. Nelson, A. S. Johnson, C. H. Dorr, G. Lowry, J. Herrick, W. Lyman, O. J. Walker, J. J. Duncklee, L. G. Bigelow, L. P. Blodgett, G. Peterson, J. K. Gray, B. B. Newton, G. F. Houghton, E. B. Whiting, W. C. Smith, A. S. Hyde, G. M. Wells, Geo. P. Berkley, L. B. Platt, M. B. Catlin, C. McNiel, L. Stone, L. D. Stone, N. Guindon, L. Orvis, W. H. White, W. E. Green, C. T. Stevens, C. O. Stevens, J. H. Bowman, W. R. Bixby, W. A. New man, C. Bradbury, Benj. Sherman, C. P. Austin, G. A. Austin, Sally Austin, J. Boynton, E. M. Wright, J. L. Hammond, M. A. Clark, J. F. Pierce, P. G. Ladd, D. Adams, and J. C. Park.\", \"head_matter\": \"William E. Green & John E. Roberts v. T. D. Chapman, G. W. Benedict, C. F. Ward, A. S. Dewey, J. K. Converse, B. W. Smith, J. E. Brinsmaid, C. Hildreth, William Brinsmaid, T. A. Peck, E. Smith, S. Wires, W. W. Peck, B. Rixford, T. M. Parker, E. Peterson, J. B. Wheeler, J. H. Robinson, R. W. Chase, E. Lyman, A. Peck, L. Underwood, C. Goodrich, W. Tharp, C. M. Davey, G. W. Allen, J. S. Pierce, C. F. Davey, M. Noyes, L. S. Drew, R. Batchelder, I. Dow, W. T. Smith, R. M. Guilford, G. T. Blodgett, E. S. Smith, L. A. Edgell, C. F. Warner, L. E. Chittenden, N. Allen, D. B. Buckley, C. P. Higbee, B. M. Webb, J. W. Allen, R. Blinn, C. L. Nelson, A. S. Johnson, C. H. Dorr, G. Lowry, J. Herrick, W. Lyman, O. J. Walker, J. J. Duncklee, L. G. Bigelow, L. P. Blodgett, G. Peterson, J. K. Gray, B. B. Newton, G. F. Houghton, E. B. Whiting, W. C. Smith, A. S. Hyde, G. M. Wells, Geo. P. Berkley, L. B. Platt, M. B. Catlin, C. McNiel, L. Stone, L. D. Stone, N. Guindon, L. Orvis, W. H. White, W. E. Green, C. T. Stevens, C. O. Stevens, J. H. Bowman, W. R. Bixby, W. A. New man, C. Bradbury, Benj. Sherman, C. P. Austin, G. A. Austin, Sally Austin, J. Boynton, E. M. Wright, J. L. Hammond, M. A. Clark, J. F. Pierce, P. G. Ladd, D. Adams, and J. C. Park.\\nPartnership account.\\nThe act \\u201c relating to actions between copartners,\\u201d approved November 15,1852, refers only to such actions as are brought to settle and adjust partnership accounts, and to which the copartners alone are parties.\\nThe act \\u201c relating to the action of account,\\u201d approved November 18,1852, does not extend to cases where the entire account is a partnership matter.\\nThe act \\u201crelating to defondants in actions on joint contracts,\\u201d approved November 17,1851, extends to cases only where no liability whatever exists on the part of one or more of the defendants.\\nAn action at law, where the same person is one of the plaintiffs and also one of the defendants, cannot be sustained, either upon common law principles, or by the provisions of either of the above mentioned acts.\\nBook account. The auditors reported that the plaintiffs who were partners in the lumber business sold a quantity of lumber to the defendant Chapman, to he used, and which was used in building a steamboat for an association of individuals styling themselves the \\u201c Champlain Steamboat Company,\\u201d of which the said\\\" Chapman was agent, and of which the plaintiff Green was one of the members, together with the other defendants in this suit.\\nOther facts in reference to the organization and proceedings of this association, which was, as it appeared, a mere partnership, and in reference to the agency of the said Chapman, were found and reported by the auditor, which, under the disposition which .was made of the case, it becomes unnecessary to mention.\\nThe report being returned, the defendants moved to dismiss the suit for the reasons, 1. That it appeared that Green, one of the plaintiffs was also one of the defendants. 2. That the plaintiffs\\u2019 remedy was in equity alone.\\nThe county court, June Term, 1854, \\u2014 Collamer, J., presiding, \\u2014 dismissed the suit, to which the plaintiffs excepted.\\nE. J. Phelps, and J. Pierpoint, for the plaintiffs,\\nrelied upon the acts of 1852 relating to actions between copartners, and actions of account, (Laws of 1852, p. 8, 9.) and the act of 1851, relating to defendants in actions on joint contracts, (Laws of 1851, p. 6.)\\nUnderwood fy Hard, L. B. Englesby and W. W. Peck, for the defendants.\\nThe motion to dismiss was well taken. The plaintiff Green being a defendant, the case is within the principle that at law, a party cannot sue himself. Mainwaring et als. v. Newman, 2 B. & P. 120. Bosanquet v. Wray, 6 Taun. 597. Holmes y. Higgins 1 B. & C. 74. Jones et als. v. Yates et al, 9 B. & C. 532. Burly Sf Harris v. Harris, 8 N. H. 233.\\nThis objection is not obviated by No. 7 of the acts of 1851, (p. 6,) which simply cures defects of misjoinder and nonjoinder.\\nIf the plaintiffs have a remedy it is in equity alone.\\nWhich is in these words, \\u2014 \\u201cThe action of account, or any other appropriate action at law, \\u201c may he brought andmantained by one or more copartner or copartners against the other \\u201c copartner or copartners, to settle and. adjust their copartnership accounts and dealings, \\u201c making all said copartners parties to said action, either as plaintiffs or defendants.\\nWhich is in these words, \\u2014 \\u201cWhenever on the trial of any action of book account it shall \\u201c appear to the court that any item or items of account or deal between the same parties \\u201c more properly belongs to the action of account, the same may be tried and adjusted in the \\u201caction of book account.\\u201d\\nWhich is in these words, \\u2014 \\u201cIn any action founded on a contract, express or implied, \\u201c pending before any court in the state, in which more persons than one are defendants, the \\u201c plaintiff shall he entitled to judgment against such defendants as may he defaulted \\u201c and against those who shall upon trial be found to be liable upon the contract declared on, \\u201c notwithstanding it shall be found upon said trial that all the defendants in said action are \\u201c not jointly liable upon the contract declared on.\\u201d\", \"word_count\": \"1838\", \"char_count\": \"10325\", \"text\": \"The opinion of the court was delivered by\\nIsham, J.\\nThe questions in this case arise on a motion to dismiss. The auditors have reported a balance on book due the plaintiffs for the sum of $933.96, subject to the right to recover the same at law, upon the facts stated in their report. The plaintiff's account is for lumber which was sold by them to Thomas D. Chapman, acting professedly as the agent of the defendants in making that purchase. The defendants by articles of agreement are organized into a joint stock association or copartnership, under the name of the \\\"Champlain Steamboat Company,\\\" for the purpose of constructing a steamboat for their use on Lake Champlain, and for which the lumber in question was purchased and used.\\nThe fact is stated, that Mr. Green was a partner with Mr. Roberts in the sale of the lumber, and that each are equally interested in the avails arising from that sale. They necessarily, therefore, have joined as plaintiffs in this suit; for where the legal interest in a contract is joint, the remedy must be jointly pursued. It also appears from the report, that Mr. Green is one of the original subscribers to the stock of this association; that he was beneficially interested, with the other defendants, in the purchase of the lumber, and is proportionably liable with them, for the payment of this account. In each of these relations, Mr. Green is interested in this contract of sale on the one part, and of purchase on the other.\\nThis action is now brought to recover the value of the lumber, and Mr. Green is made one of the plaintiffs of record as well as one of the defendants. It is very obvious, that this suit cannot be sustained on common law principles. No suit at law can be sustained \\\" for no one can be interested as a party on both sides of the record.\\\" This doctrine has been held in several cases in England and in this state. The proper remedy of the party is in chancery. Mainwaring v. Newman, 2 Bos. & Pul. 120. Bosanquet v. Wray, 6 Taun. 597.\\nThis case was, therefore, properly dismissed, unless by some statute different provisions have been made enabling suits of this character to be sustained at law. It is insisted that such provisions have been made by the acts of 1852. It is apparent, however, that the act of November 15, as well as that of November 18, was never intended to apply to actions of this character, or to alter that rule of common law. The act of November 15, p. 8, refers, only to the common law action of account, and provides that that action may be sustained in cases, where otherwise, the remedy is only in chancery. \\\"Where the partnership consisted of only two persons, a remedy for the settlement of them partnership dealings was had at law in the action of account; but if the partnership consisted of a greater number of persons, the only remedy was in equity. Wiswell v. Wilkins, 4 Vt. 137. By this act, the remedy at law in this form of action is extended, so that partnership dealings may be finally settled, whatever number of persons may compose the partnership. For that purpose also, such equitable powers are given to the court in that action, as may be necessary to adjust their accounts.\\nIn the next place the statute refers only to such cases as are brought to settle and adjust the copartnership accounts, and where the copartners only are parties to the suit. It has no reference to actions brought by third persons, who are not members of the co-partnership. This suit is not brought to adjust those accounts, nor can they be adjusted in an action where Mr. Roberts is one of the plaintiffs of record, as he is not a member of the copartnership, and is in no way privy to their accounts or dealings. To bring a case within the provisions of this act, the action must be brought by partners against the copartners, declaring in the form of the common law action of account, and in which the final balance between the copartners can be settled. This action on book cannot be sustained for any such purpose, and is unaffected by that statute. The act of November 18, p. 9, providing that any items of account, properly belonging to the action of account, may be tried and adjusted in the action on hook account, does not extend to cases, where the entire account is a partnership dealing.\\nNeither is this case affected by the act of 1851, which permits the plaintiff to take judgment against those defendants on whom a liability is proved, notwithstanding other defendants are joined, who are not jointly liable on the contract. That act extends to cases only, where no liability whatever, on the contract, exists on the part of some of the defendants. But in this case a liability does rest on Mr. Green to pay his proportion of this account. The difficulty in the case is, that his liability cannot be enforced at law. The proceedings should have been instituted in another tribunal, where the'respective liabilities of all the parties can be enforced. For that reason, we think, the suit was properly dismissed. This view of the case renders it unnecessary to pass upon other questions which were raised during the argument.\\nThe judgment of the county court is affirmed.\"}"
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+"{\"id\": \"741829\", \"name\": \"The State of Vermont v. The Vermont Central Railroad Company\", \"name_abbreviation\": \"State v. Vermont Central Railroad\", \"decision_date\": \"1858-01\", \"docket_number\": \"\", \"first_page\": \"108\", \"last_page\": \"110\", \"citations\": \"30 Vt. 108\", \"volume\": \"30\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:51:28.753357+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The State of Vermont v. The Vermont Central Railroad Company.\", \"head_matter\": \"The State of Vermont v. The Vermont Central Railroad Company.\\nRailroads. Nuisance. Criminal law.\\nAn indictment cannot be sustained against a railroad company for a nuisance in tlie obstruction of a highway, by the stoppage therein of the trains run upon the railroad, while it is under the sole management of a receiver, appointed by the court of chancery, over whose acts the company have no control.\\nIndictment for a nuisance in 'tbe obstruction of a public highway.\\nA statement of facts was agreed in this cause to the effect that the freight trains running over the Vermont Central Railroad were, on several occasions, allowed by the conductors in charge of them, to remain in the highway described in the indictment, in such a manner as to constitute a public nuisance ; but that the said railroad during all of this time, was in the hands and under the control of receivers appointed by the court of chanee2-y, and that the Vermont Central Railroad Company had no authority or control over said road, conductors or trains.\\nThe county court, at the March Term; 1857, \\u2014 Peck, J., presiding, \\u2014 pro forma, adjudged the respondent guilty of the alleged nuisance. Exceptions by the respondent.\\nLevi Underwood, for the respondent.\\nThe single point in the case is, whether the corporation is liable to be indicted for the act of the receivers appointed by the court of chancery, or their servants, in suffering trains of cars to stand in the highway an unreasonable length of time, when the corporation have no power over the receivers.\\nThe railroad and trains are not nuisances per se, and only become such by the improper conduct of the managersand probably the corporation would be responsible criminally for the improper use of the trains by its agents over whom they had control. But where the operation of the road is under the control of the court of chancery, as in this case, and the corporation is enjoined from interference with its management, they cannot be liable to indict ment for the culpable conduct of the persons operating the road over whom they have no control.\\nH. jR. Hard, state\\u2019s attorney, for the prosecution.\\nThe respondents having accepted their charters and assumed to the state and the public the duties incident to such corporations, are responsible to the public for all acts done in the exercise of the rights conferred by the acts of incorporation, irrespective of any question as to the immediate parties committing the crime.\\nThe state can look only to the corporations. If they have, by mismanagement or otherwise, been compelled to part with their property, it is no justification to a prosecution for a nuisance committed on the line of their road in the course of the business for which they were incorporated, and which they have assumed to perform.\\nThe receivers- could not be indicted. They are the mere agents of the court of chancery. Any attempt to interfere with them in the custody and control of the property, either by civil or criminal process, would be enjoined, and the party so interfering might be punished for a contempt.\", \"word_count\": \"1043\", \"char_count\": \"6028\", \"text\": \"The opinion of the court was delivered by\\nBennett, J.\\nThis is an indictment for a nuisance in blocking up a highway with freight cars, engines, etc.; and the offense is, wc think, well enough charged in the indictment.\\nRailroad companies are unquestionably liable to an indictment for obstructing a highway, contrary to the powers granted to them in their charters. Though it has sometimes been said that an aggregate corporation can not be indicted for a mis-feasance, but only for a non-feasance ; yet we apprehend the law is otherwise, especially if the offense charged does not essentially consist in a corrupt intent, which does not seem to be involved as a necessary element in the offense charged in this indictment.\\nThe question however in this case is, do the facts agreed by the parties sustain this indictment ? It is not questioned but what the acts which have been done in blocking up the highway would sustain the indictment if done by the railroad company, or by men in their employ, over whom they had a control; but the case finds that the railroad and all the trains thereon were in the hands of a receiver appointed by a court of equity, and that the railroad company had no right or power to interfere with such trains or the conductors, or men managing them, but the same were wholly under the control of the receivers.\\nA railroad company are only indictable for a nuisance by reason of an improper management and conduct in running their road, in a way which neither their charter or the general railroad law will sanction. But if the railroad and all its concerns are in the hands of a receiver, and the company are under an injunction not to intermeddle with its concerns, it would seem difficult to maintain the proposition that still the company should be liable to an indictment for the acts of the receiver, or of his agents. To hold the company liable in such a case, would be indeed monstrous, as they had no power to control or prevent the acts complained of as a nuisance. No man or corporation should be made criminally responsible for acts which they have no power to prevent.\\nIt has been assumed by the attorney for the government, that unless this prosecution is sustained the government are without the means of redress. But will that conclusion follow ? Why may not the receiver be subjected to an indictment ? If he has been guilty of a nuisance it would seem difficult for him to defend under his commission from chancery. He was not placed above the law. But this is not a point before the court calling for a decision. It is enough to say that the facts in this case will not sustain the present prosecution.\\nThe decision of the court below adjudging the defendants guilty, must be reversed, and a new trial granted, and the cause be remanded to the county court unless the state's attorney shall elect to enter a nolle prosequi.\\nNote. After this decision a nolle prosequi was entered by the state's attorney.\"}"
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+"{\"id\": \"744295\", \"name\": \"William F. Clark, administrator of Orange S. Clark, v. Orange G. Clark\", \"name_abbreviation\": \"Clark v. Clark\", \"decision_date\": \"1868-11\", \"docket_number\": \"\", \"first_page\": \"685\", \"last_page\": \"691\", \"citations\": \"43 Vt. 685\", \"volume\": \"43\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T22:32:11.031903+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William F. Clark, administrator of Orange S. Clark, v. Orange G. Clark.\", \"head_matter\": \"William F. Clark, administrator of Orange S. Clark, v. Orange G. Clark.\\n[In Chancery.]\\nImplied Trust. Trustee. Accounting. Rents and Profits. Statute of Frauds, Consideration. Parol Evidence.\\nThere, is an implied trust in favor of the party furnishing the consideration paid for land deeded, to a third party, and hence parol evidence as to the understanding and intention of the parties is not excluded by the statute of frauds.\\nS. procured certain land, which he had paid for with his own money, to be deeded to Cx. This land, with the consent of S., was turned in by Gr. at $300, in pait payment for certain other land the price of which was $700. Gr. paid $400, the balance of the consideration, toward the same, and took a deed thereof to bimself. \\u20acK therefore held three sevenths of the last named premises in trust for S.\\nIt being obvious from the circumstances of this case that no accounting for rents and profits was ever contemplated, Gr. should account only for the rents and profits of an undivided three sevenths of the premises since the decease of S. 5 and the orator is entitled to partition or severance of said throe sevenths in such manner as the court of chancery shall deem just and equitable, or to such a decroe as will give him, as administrator of S., an equivalent therefor and the rents and profits.\\nBill in chancery. The said Orange S. Clark, who brought this bill in chancery in his life-time, alleged in bis bill that about the year 1886 be resided on a piece of real estate situated iu Groton village ; that prior thereto he had made negotiations for its purchase, and erected buildings thereon, with a view of making it a homestead for himself and family ; that he at that time was a vigorous man to labor at bis trade, which was that of a carpenter and joiner; that in the spring of the year 1836, he being somewhat addicted to the use of ardent spirits, and having a family, it was thought best, in order to have a permanent place of abode for himself and his family, and to prevent its being squandered and wasted, to have a deed of the place taken in the name of his eldest son, Orange G. Clark, who was about twenty-two years old, to hold the same in trust for t^e orator and for his benefit; that in April, 1886, a deed was taken from one Hezekiah Kimball to said Orange G., with this understanding, and by his advice and consent, and for which he never paid a cent, but the consideration wholly moved from the orator ; that said Orange G. at that time was unmarried and had no family ; that he occupied said premises as, a homestead for many years afterwards ; that about the year 1845, in January, said Orange G., with consent all around, exchanged said Kimball place for another larger place, a little out of the village aforesaid, belonging to another son of the orator, viz., William E. Clark ; that the price of this place was called in the exchange $700 ; that the Kimball place was called in said trade $800, and the said W. E. Clark, at or perhaps previous to the time of said last named trade, owed the orator the sum of eighty dollars, which was also put into the new place, and the deed was taken by said Orange G. Clark, in the same manner and for the same purpose as was the deed of the Kimball place, viz., to hold in trust for his benefit, to the extent of what the orator put into the place ; that he let the said Orange G. have two cows, which were taken by said Orange G. to hold in trust for the orator, and to prevent their being squandered by drink and improvident bargains ; that the orator moved on to the place had of Wm. E. Clark as aforesaid, and lived there many years with his wife, who deceased about the year 1858 ; that at the time said Orange G. took the deed of the Kimball place the orator was free from debt; that since the deail of his said wife the orator has part of the time lived in the family of the said Orange G., who now resides on the W. E. Clark place, and most of the time that he has lived on said W. E. Clark place he has labored on the farm and at his trade, repairing buildings, &c., and Orange G. had had the benefit thereof, as well as the income of the place, except what the orator and his wife, prior to her decease, needed for their support; that the orator thinks he has furnished $500 of the pur chase money of the W. E. Clark place, including the two cows, but excluding the labor of the orator and his wife, and the income of the farm ; that said Orange G. has received, in the avails of the place, the just share of the orator, and the labor of the orator and wife, to a large amount more than any support he has received on said place, to wit, $800 ; that the orator is now in feeble health and unable to support himself, and is now supported, and has been a long time, by some of his other children ; that he has solicited and demanded help for his support and maintenance from said Orange G., in consideration of said trust fund in his hands, but said Orange G. refuses to help him, or deliver up said property, or any part thereof; that h\\u00e9 has demanded an accounting in the premises of said Orange G., but he wholly declines and refuses to make any accounting.\\nprayer:\\nThat said Orange G. may be decreed to pay over to the orator, or such other proper person as the court may appoint to receive the same, whatever sum, upon a proper accounting, may be found due to the orator in the premises, or convey to the orator or to some proper person for his benefit and support, such property or just and equitable proportion thereof as in equity belongs to him, and for further relief, &c.\\nThe defendant, Orange G. Clark, alleged in his answer that he consented to take the deed of the Kimball place, on condition that the place was to be absolutely his, but that he was to keep the place as a home for his failer and mother so long as they or either of them lived, and when they both deceased the place was to be his, without accounting to any one for the same ; that previous to his taking a deed of the Kimball place, his failer wished him to purchase a small place called the \\u201c Bean place,\\u201d in Groton, and he promised, if he would, he would give him $100 towards paying for the same; that he bought the place, and his failer gave him $80 towards paying for it; that in the exchange of the Kim-ball place for the Wm. E. Clark place, the deed of the latter was made to him with his failer\\u2019s consent and request, and he and his wife were to have a home on the same condition as stated when he took a deed of the Kimball place; that said cows were not to be a charge to him in any way; that his failer and mother liked the W. F. Clark place the best, and were ready to turn them in for the sake of the improvements in their home ; that in taking this deed no other conditions were made than as set forth in taking the deed of the Kimball place ; that he subsequently sold the Bean place, and turned in the avails of the same towards the Wm. F. Clark place, and the eighty dollars, and two cows above mentioned, and the Kimball place, is all the property there ever was in the W. F. Clark place that his failer ever had any interest in ; that his failer and family lived on the W. F. Clark place after the purchase thereof, with the exception of one year, until the deail of his mother, and that his failer had a part of the rent of said place for the year he was so absent therefrom.\\nAfter the commencement of this ^ suit and before the hearing, Orange S. Clark deceased, and the suit was revived in favor of his administrator, Wm. F. Clark.\\nThe answer was traversed, and testimony was taken, and the cause was heard on bill, answer, replication, and proofs, at the June term, 1868, Caledonia county, Steele, Chancellor, when it was ordered that a decree pass, pro forma, for the orator, according to the prayer of the bill, from which the defendant appealed.\\n--, for the defendant.\\nLeslie $ Rogers, for the orator.\\nDecided general term, November, 1868.\", \"word_count\": \"2838\", \"char_count\": \"15441\", \"text\": \"The opinion of the court was delivered by\\nPeck, J.\\nThere is no dispute in the pleadings or evidence but that the intestate, some few years prior to 1836, purchased the premises in Groton village, consisting of about half an acre of land, on which he built a dwelling-house, and on which were some outbuildings; that ho and his family had resided on the premises several years prior to 1836, and that in 1836 he still owned the premises, but that the legal title was in Kimball; that in 1836 it was thought best to have a conveyance from Kimball, and that in consequence of the intestate being at times somewhat improvident, the defendant, his eldest son then about twenty-two years of age, was solicited by the intestate and his family to have the deed of the premises from Kimball taken to the defendant for the benefit of the intestate, and the more effectually, as they thought, to preserve the place as a home for the intestate and family consisting of a wife and minor children ; that the deed was so taken to the defendant, to hold for the benefit of the intestate by verbal agreement between the intestate and the defendant. It is not claimed by the defendant that he ever paid any consideration for the-deed, or that he ever agreed to pay any thing. But the defendant claims in his answer and testimony that it was further agreed, that on the deail of his failer and mother, the premises were to be his, the defendant's, property ; the orator claims that the defendant was to have no beneficial interest in the premises, but was to hold the title in trust for the intestate and his wife. It being admitted by the answer, as well as proved, that the intestate paid the whole consideration, and that the defendant neither paid nor agreed to pay anything, it is a case of an implied-trust in favor of the party who advanced the consideration, and hence parol evidence as to the understanding and intention of the parties is not excluded by the statute of frauds. This was substantially all the property the intestate owned at the time the deed was taken to the defendant. But without going into an examination of the testimony, it is sufficient to say, that upon a careful examination of the proofs, the direct evidence and the circumstances .disclosed in the testimony, we are satisfied that the balance of evidence is that the defendant took the conveyance from Kimball simply in trust, as is claimed on the part of the orator, and that there was no agreement or mutual understanding that the defendant should have any beneficial interest in the premises. If the defendant had any different understanding, it was not justified by what was said between the parties, or by the facts and circumstances attending the transaction.\\nThe next question is, what effect upon the rights of the parties was produced by the subsequent purchase of the Wm. E. Clark place, and the turning in of this Kimball place in part payment. It appears that about 1845, by mutual arrangement between the defendant and his failer and mother, the defendant purchased a small farm a short distance out of the village, called the Wm. E. Clark place, at the price of $700, and this Kimball place was turned in, in part payment, at $300 ; and the intestate and his wife and a minor son thereafter resided on that farm a number of years. We find that no different arrangement was made in reference to the right of the intestate in the Wm. E. Clark place from that which had existed in reference to the Kimball place, and that this was but an exchange on the part of the'intestate of the Kim-ball place for an interest equal in amount in the Wm. F. Clark place. The deed of the Wm. E. Clark place having been taken to the defendant, he holds three sevenths of the last named premises, (being the premises in question,) in trust for the intestate, precisely as he previously held the Kimball place. It appears that just previous to the time that the defendant took the deed of the Kimball place, he, or he and his failer, purchased a small place in Groton village, called the Bean place, for $275, and the intestate furnished to the defendant money to pay towards the same, some $80 or $87 ; the defendant paid the residue out of his own moans. There is testimony on the part of the orator, to the effect that that was a joint purchase by the intestate and the defendant, and that although the deed was taken to the defendant, the intestate had an equitable interest to the amount that he paid or furnished the means to pay. If this is so, then the interest of the intestate in the premises in question would be increased by that amount, as it appears that that place was sold by the defendant and the avails paid towards the premises in question. But the testimony on the part of the defense is, that the intestate gave the $80 or $87 to the defendant as a gift, saying, that by giving his other two boys one year of their time before twenty-one years of age, as he intended to do, he could do as well by them. We think the evidence on this point will not warrant the conclusion that a trust exists in reference to the premises in question, based on this advance of the $80 or $87 by the intestate. It appears also' that at the time the defendant purchased the premises in dispute, (the Wm. E. Clark place,) the intestate had two cows on that place, which by agreement went in part payment for the premises, and the orator claims that to the extent of the price at which they were reckoned in payment, a trust in the premises was thereby created in favor of the intestate. But we think the weight of the evidence is, that that was not so intended or understood at the time. As the defendant's mother died before her husband, it is unnecessary to inquire what her rights would have been had she survived him, The orator claims that the defendant should account for rents and profits of the intestate's share of the premises from the time he, the defendant, moved on to the premises, about 1858. It is manifest from the manner in which the intestate and the defendant have occupied the premises, up to about the time of the intestate's decease pending this suit, that no basis of accounting for rents and profits could be adopted that would be likely to approximate nearer to justice in this matter than to leave it where the parties have left it. If each has not enjoyed the rents and profits in exact proportion to his interest in the premises, it is as near that as the parties intended. It is obvious that no accounting for rents and profits was ever contemplated by the parties, and none should be ordered, up to the deail of the intestate. But for the time since the intestate's deail, the defendant must account for the rents and profits of the three undivided sevenths of the premises belonging to the intestate at his decease, and which is the proper estate of the intestate ; and the orator is entitled to partition or severance of said three sevenths, in such manner as the court of chancery shall deem just and equitable on the basis above stated; or that such decree be made as will give the orator as administrator an equivalent for said three sevenths, and the rents and profits thereof since the decease of the intestate. As to the other dealings mentioned in the pleadings and evidence, neither party is entitled to an accounting or decree. The question of costs in the court of chancery to be disposed of by that court.\\nCause remanded to the court of chancery to carry out the decree thus modified.\"}"
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+"{\"id\": \"748206\", \"name\": \"Joseph Mundell v. Geo E. Hammond\", \"name_abbreviation\": \"Mundell v. Hammond\", \"decision_date\": \"1868-02\", \"docket_number\": \"\", \"first_page\": \"641\", \"last_page\": \"647\", \"citations\": \"40 Vt. 641\", \"volume\": \"40\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T22:59:29.422782+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Joseph Mundell v. Geo E. Hammond.\", \"head_matter\": \"Joseph Mundell v. Geo E. Hammond.\\nAttachment. Exemptions. Statute.\\nA yoke of steer calves less than a year old come within the letter and within the intent and meaning of the General Statutes, chapter 41, \\u00a7 13, which enumerates articles as exempt from attachment. They are therefore exempt, together with sufficient forage for keeping the same through the winter.\\nThe question whether the forage would be exempt, if the debtor has not the stock stated as exempt, not decided.\\nThe amendment of said section by addition of a pair of horses as exempt, in 1866, did not affect the same in this respect.\\nThis is an action in trespass, with a count in trover, for three tons of hay. Plea, the general issue, and trial by jury at the September Term, 1867, Barrett, J., presiding.\\nThe following facts, among others, appeared at the trial:\\nDecember 19th, 1366, the plaintiff was possessed of the hay in controversy. On that day the defendant, against the will of the plaintiff, took and carried away said hay.\\nDecember 15th, 1866, one E. A. Plimpton, executor, sued the plaintiff, and attached all the hay in the plaintiff\\u2019s barns. His suit was entered in court, and final judgment was obtained by said Plimp ton against the plaintiff, for an amount much greater than the value of the hay in controversy.\\nOn the day of the attachment, the plaintiff owned no more hay and other forage than sufficient to keep one cow, ten sheep, and a yoke of oxen or steers, through one winter, but he had sufficient, besides the hay in controversy, to keep a cow and^ten sheep through one winter.\\nDecember 15th, the plaintiff owned one cow. ten sheep, and a pair of steer calves, which would become a year old the spring following. He had at that time no other oxen or steers, nor did he have any team. He was a farmer, carrying ou a farm of upwards cf one hundred acres,\\nDecember 16th, the day following Plimpton\\u2019s attachment, the plaintiff purchased a yoke of oxen or steers. At the time of the purchase he had no actual knowledge of Plimpton\\u2019s attachment. Those oxen or steers, so purchased, he had at the time the defendant took and carried away the hay.\\nThe defendant claimed, and requested the court to charge the jury, that the plaintiff was not entitled to recover for the hay, because, upon the facts shown, the defendant was liable for the hay to the officer who made Plimpton\\u2019s attachment. The court declined to instruct the jury as requested, but did instruct them that the defendant\\u2019s liability to tbe officer would not constitute a defence to this suit. To which the defendant excepted.\\nThe jury returned a verdict for the plaintiff to recover the value of said three tons of hay.\\nAfter judgment on said verdict, the defendant moved the court that the plaintiff\\u2019s execution be stayed, until the plaintiff should remove the lien on said hay created by Plimpton\\u2019s attachment.\\nThe court held, and decided as matter of law, that the hay removed by the defendant was liable to Plimpton\\u2019s attachment, inasmuch as the case showed that the plaintiff had no yoke of oxen or steers, other than said pair of steer calves, on the day the attachment was made, and thereupon granted the motion of the defendant, and ordered said execution to be stayed. To which the plaintiff excepted.\\nSaid rulings to which exception was taken were pro forma.\\nCharles N. Davenport, for the plaintiff.\\nH. H. Wheeler, for the defendant.\", \"word_count\": \"2642\", \"char_count\": \"14553\", \"text\": \"The opinion of the court was delivered by\\nPeck, J.\\nThe action is trover for three tons of hay, for which the plaintiff recovered judgment in the county court. The only question made in this court is, whether the county court erred in staying execution upon a supposed liability of the defendant to an officer who attached the hay in question, with the residue of the plaintiff's hay, in a suit of one Plimpton against this plaintiff, four days before the conversion of the hay in question by the defendant.\\nIf the hay in question was exempt from attachment, the defendant was not liable to the officer, and therefore the order of the county court, staying execution, not justified. It appears that the plaintiff, at the time of the attachment, December 15th, 1866, was a farmer, carrying on a farm of one hundred acres, and owned no more hay and forage than sufficient to keep one cow, ten sheep and a yoke of oxen or pair of steers through one winter, but had sufficient, beside the hay in controversy, to keep a cow and ten sheep through one winter. He owned one cow, ten sheep, and a pair of steer calves which would become a year old the next spring, and had no other oxen, steers, or other team.\\nIt is insisted on the part of the plaintiff that the hay in question was exempt from attachment on two grounds, first, that the steer calves which the plaintiff owned were steers within the meaning of the statute exempting from attachment one pair of oxen or steers, and forage sufficient for keeping the same through the winter ; that having the steers, forage sufficient to winter them was exempt; second, that if the steer calves were not such as come within the meaning of the statute, still forage sufficient in quantity to winter a yoke of oxen or steers is specifically exempted, whether the party owns any oxen or steers or not. If the steer calves, as they are called, are exempt, the forage to winter them was .clearly exempt from attachment. The General Statutes, after enumerating various articles of property as exempt from attachment and execution, adds, \\\" and also one yoke of oxen or steers, as the debtor may select, with sufficient forage for keeping the same through the winter.\\\" In construing this statute, we cannot extend it beyond the true meaning and intent of the legislature, but must look at the language used, and the object and purpose in view, and interpret it in the light and spirit of former decisions upon the various provisions of the statute on this subject. Among the very early statutes on this subject was a provision exempting a yoke of oxen from attachment, but no reported ease has come down to us in which a construction was given to it by the courts. It remained in force but a short time, and the present provision in question is of so recent origin that we are without any direct decision giving it a construction. It is established by the whole current of decisions in this state on this subject, that the statutes exempting certain property from attachment are remedial in their character, and ought to receive a liberal construction in favor of the debtor. In Dow v. Smith, 7 Vt. 465, Collamer, J., says, \\\"This exemption is charitable and in the cause of humanity, and ought to receive a liberal practical construction.\\\" It was held in that case that a two year old heifer, forward with calf, when the owner had no other cow, was a cow within the intent and scope of the statute. Collamer, J., says, \\\"This only permits the poor man to call and consider this his cow when he has no other more clearly entitled to the appellation ;\\\" thus not attempting to put the case on the ground that the heifer was a cow, within the common use and acceptation of the term. In Freeman v. Carpenter, 10 Vt. 433, it was decided that a two year old heifer in the spring, that had never had a calf, and that was not with calf, was exempt under the provision exempting a cow, the debtor having no other cow. Williams, Ch. J., says, \\\"The statute in terms exempts one cow from attachment and execution. Possibly, if it were a penal statute, it might be considered that the term only applies to the animal after she has brought forth a calf. This is, undoubtedly, not only the common, but the correct meaning of the term.\\\" Yet after conceding this, the court held that the heifer was exempt. It seems in these cases that the court by implication extended the statute back to a certain extent, to protect the young creature during its progress, growth, and development into a cow, before it had reached the stage of usefulness as a cow, or became a cow according to the common meaning of the term. If the statute, instead of exempting a cow merely, had read, one cow or heifer, the court probably would have had no difficulty in extending it to a much younger animal than they have occasion to in these cases ; even to a heifer calf. If the provision in question in the case at bar had simply exempted a yoke of oxen, a question somewhat similar to the question in the cases alluded to, might have arisen ; that is, the question how old a steer must be in order to be an ox. But the legislature has shut the door against this question, by exempting in terms steers as well as oxen. But one question is still left for the court to decide, which is the real question in this case; that is, how old a steer calf must be before it is a steer. I think if this question was pnt to a farmer, how old a male animal of this species must be before it can' become a steer, he would say that if its condition in other respects was such as to entitle it to the appellation of steer, no particular age was necessary, except that it must not be too old ; that it might be too old to be a steer, but not too young. The animals in question in this case being some two or three months less than a year old, are properly denominated, as cattle of this age generally are, calves; but they are none the less steers because they are called calves. They are calf steers, or steer calves. In a few months they would have been called yearlings, but the full description would be yearling steers, so at the end of another year they would be denominated two year old steers, and so on till the age when they would more properly be called oxen. These steer calves were not heifers, they were not bulls, and, therefore, must be steers. They were young animals of the species and description that by time and subsequent growth would have become oxen, and they come within the literal import of the term, steers. But still it is contended that in this statute it is manifest that the words used were intended in a more restricted sense. If this is so, it is our duty to so coustrue them. It is urged that the object of the statute in making this exemption, was to enable the debtor to have the use of cattle of this description for a team, and that, as these creatures were too young for immediate use for that purpose, they did not come within the exemption. This undoubtedly was the principal object in view, but when certain property is specifically and unqualifiedly exempted, it does not become attachable merely because, in the particular case, the debtor is so situated, for the time being, as not to be able immediately to put the property to the use designed, nor because the property itself is not in a condition to be put to such immediate use'. The law exempts ten sheep, obviously for the purpose of enabling a man thereby to feed and clothe himself and family ; and although it does not exempt lambs eo nomine, yet no one would suppose if a debtor had five sheep and five lambs that the five lambs could be attached because they had not arrived at that age when the flesh is fit for food, or the wool of any value for clothing. They are of value to raise into sheep, and the debtor has a right to keep them for that purpose. So with these young steers, they are exempt in terms, and are of value to raise up to oxen so as to answer ultimately the purpose designed by the statute. The language of the General Statutes is, \\\" also one yoke of oxen or steers such as the debtor may select\\\" This statute says nothing about requiring the oxen or steers to be fit for a team, or being actually used for that pui'pose in order to be exempt. The exemption is absolute and unqualified. If the legislature had intended to limit this provision exempting steers, to steers of the age when they are usually put to service, or to such as were actually put to use as a team, some provision of this kind would have been inserted. There being nothing of this kind, it is fair to infer that in the general terms used, the legislature had in view the fact that most men for whose benefit the law exempting property from attachment is made, are scarcely in possession of sufficient means to purchase full grown cattle of this kind, and without this protection in raising them, they could rarely if ever supply themselves with a team. This construction is not enlarging the amount of property exempt beyond that specifically exempted by the statute, for the younger the steers the less their value. We think, therefore, these steer calves come within the intent and meaning of the General Statutes, chapter 47, section 13.\\nBut it is insisted that by the act of 1866, the exemption of oxen and steers is limited in terms to such as are kept and used for team work. It appears that in 1866 this whole section 13 was re-enacted in the same terms, with an addition as to horses. The Act is in the same words as section 18, as to the exemption of oxen and steers, with an addition as to horses, as follows: and also one yoke of oxen or steers as the debtor may select, two horses kept and owned for team work, and such as the debtor may select in lieu of oxen or steers but not exceeding in value the slim of two hundred dollars, tvith sufficient forage for the keeping of the same through the winter. This amendment giving a party a right to keep two horses in lieu of oxen or steers, in no way affects a party who does not act under it. It has no more effect upon the construction of the former law, than if it had been passed in a separate statute. The whole provision as to being kept and used for team work, and as to not exceeding in value the sum of $200., applies exclusively to the two horses. The intent of this was not to give an absolute or unqualified right to all persons to keep two horses for every purpose, and thereby to allow, under cover of such exemption, hundreds and thousands of dollars to be invested in fast or sporting horses ; hut to limit the exemption of horses to such persons as kept and used them for a team, and with a limitation as to value.\\nThe exception taken by the defendant on trial not being insisted upon, the judgment of the county court for the plaintiff, is affirmed. As the steers were exempt from attachment, the hay in question was also exempt, and the court erred in staying execution. The other ground on which the plaintiff's counsel claim the hay was exempt need not be noticed.\\nAs the order of the county court staying execution is not well founded in law, that order is vacated, and the plaintiff is entitled to execution.\"}"
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+"{\"id\": \"758968\", \"name\": \"PHILIP MUIR and Wife v. LEWIS BISSETT\", \"name_abbreviation\": \"Muir v. Bissett\", \"decision_date\": \"1880-01\", \"docket_number\": \"\", \"first_page\": \"287\", \"last_page\": \"292\", \"citations\": \"52 Vt. 287\", \"volume\": \"52\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T20:42:10.598125+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"PHILIP MUIR and Wife v. LEWIS BISSETT.\", \"head_matter\": \"PHILIP MUIR and Wife v. LEWIS BISSETT.\\nTrover. Lease by Husband of Wife\\u2019s Separate Property. Trespass qua. clau.\\nIn trover by husband and wife for hay cut and sold from premisesjthat were the sole and separate property of the wife, it appeared that before the hay was cut the husband assumed to lease the premises to defendant by writing in his own name, but before defendant went into possession, forbade him to do so, for that he had inserted in the lease no provision that the husband should have a lien on the crops for the rent, as he had agreed, and told him the premises and all the property thereon were the property of the wife, as aforesaid; but that defendant went into possession. There was evidence tending to show that defendant then agreed that' the husband should have such a lien, and evidence tending to show the contrary. There was also evidence tending to show that the wife knew that defendant went into possession, and evidence, q. from which the trier of fact found that his possession was with the \\u201c knowledge and acquiescence\\u201d of the wife; but it appeared that, before the commission of the act in question, the wife brought ejectment against defendant, which was still pending. Held, that the lease by the husband was void and did not give character to acts of possession; that, therefore, although the wife, if disseised of the entire premises, might recover in trespass qua. clau. for the act of disseisin, the original entry, only, and not for the cutting of the hay, which was a separate act of trespass, yet as she was the owner of the land and whatever grew thereon, whether standing or severed, and had not parted with her interest therein, nor been disseised of the entire premises, the action might be maintained ; and that it mattered not whether the entry was wrongful and continued against the wife\\u2019s will, or was with her consent on condition that she should have the crops until the rent was paid.\\nTrover for a quantity of hay, brought to the City Court of Burlington. Plea, general issue, and trial by the court, Haselton, J.\\nIt appeared that on April 1, 1879, the defendant, acting under a a written agreement before then .made between him and the plaintiff Philip, entered into possession of a farm in Jericho that was then the sole and separate property of the plaintiff Judith, wife of Philip. That agreement, so far as material to the present inquiry, was as follows:\\nAll men lcnowed by these presents: 1, Lewis Bissett, do hereby promise to said conditions, which are these: to pay Mr. Muir for use of farm, including tools . . . which I promise to pay to said Philip Muir, sixty dollars per year, which are to be made in three payments; first payment due the last of May, payable in work, . . . second payment to be paid the 15th of August, in cash $17.50, and the third payment to be paid the first of January, 1880. . . .\\nAt the time of the signing of the agreement, the defendant executed and delivered to Philip three promissory notes for the aggregate sum of \\u00a760, payable at the times specified in the agreement. On the day before the defendant took possession, Philip forbade him to take possession, for that he had not inserted in the agreement a provision giving Philip a lien on the crops, as security for the payment of rent, as agreed; and informed him that the farm and all the personal property thereon were the sole and separate property of his wife. After going into possession, the defendant cut and sold the hay in question, and it was removed from the farm. The plaintiffs\\u2019 evidence tended to show that on being forbidden to enter, the defendant promised Philip that if he would let him into possession, he might have a lien on all crops, but refused to have a provision to that effect inserted in the writing ; and that Philip let the defendant into possession on that condition. That promise the defendant denied, claiming that the agreement consisted solely of the writing. The plaintiff Philip testified that he had often acted for his wife in the management of the property, and did so in his dealings with the defendant, but that she never made him her agent to lease the property, and that he signed his name to the agreement \\u201c on his own hook.\\u201d One witness testified that on a former trial Philip testified that he acted for his wife in making the lease in question. It appeared that the defendant began to move his goods onto the premises the day the plaintiffs\\u2019 were moved away, and that the plaintiff Judith was an inmate of the house on the farm the day before ; that on July 25, 1879, before the hay was sold, the plaintiff Judith brought an action against the defendant under sections 22, 28, c. 46, Gen. Sts. to recover possession and rent in arrear, which was still pending. The plaintiff Philip testified that the notes belonged to his wife, that before the bringing of the action of ejectment he had turned them out as security collateral to a mortgage on the farm, but that before that action was brought he got them for use in court, and still held them. There was no evidence, except as above stated, tending to show any knowledge on the part of the plaintiff Judith of the agreements as to the farm, or that she knew, before the bringing of the action of ejectment, that the defendant was in possession, or that there was any privity of contract or estate between her and the defendant. The defendant never paid any rent nor any of said notes.\\nThe court, deeming it immaterial, did not find whether the subsequent parol agreement asserted by the plaintiff was made or not, but found from the testimony of the plaintiff Philip, which on that point was uncontradicted, that the farm and personal property thereon, and the rents, issues, and products thereof were the sole. and separate property of the plaintiff Judith, and that the possession of the defendant was with said Judith\\u2019s knowledge and acquiescence ; and ruled that the written agreement was void under the statutes, but that \\u201c the action of trover could not be maintained\\u201d; and rendered judgm\\u00e9nt accordingly for the defendant for his cost. Exceptions by the plaintiffs.\\nF. H. Goin, for the plaintiffs.\\nThe writing was void. Gen. Sts. c. 70, s. 18 ; Peck v. Walton, 26 Vt. 82. There was no valid parol lease. Such a lease of a wife\\u2019s land is void, if she be not a party to it, and she cannot affirm it by assent after the husband\\u2019s death. Her consent must appear at the beginning of the term. Taylor L. & Ten. s. 102; Jackson v. Holloway, 7 Johns. 81; Winstell v. Hehl, 6 Bush, 58 ; Turner v. Sturges, Dyer, 91a ; Walsal v. Heath, Cro. Eliz. 656 ; Worthington v. Young, 6 Ohio, 314; Wotton v. Hele, 2 Saund. 180. A void conveyance is incapable of confirmation. Taylor L. & Ten. s. 101; Doe v. Martin, 7 T. R. 83; Jenkins v. Church, Cowp. 482.\\nThe relation of landlord and tenant subsists by virtue of contract only. Taylor L. & Ten. s. 14. But a married woman is incapable of making a contract. Davis v. Burnham, 27 Vt. 562; Ingram v. Nedd, 44 Vt. 460, and other cases.\\nThe finding that possession was with the wife\\u2019s knowledge and acquiescence was erroneous. There was no evidence to support it. But if possession was with her knowledge and acquiescence, she was not thereby bound. Lord Mansfield, in Jenkins v. Church, supra; Hardin v. Pelan, 41 Miss. 112; Chandler v. Edson, 9 Johns. 363.\\nUnder the facts found the defendant was a trespasser. Trover, then, was properly brought. White v. Wait, 47 Vt. 502 ; Chandler v. Hdson, supra.\\nR. H. Start, for the defendant.\\nThe court found that the possession was with the knowledge and acquiescence of the wife. There was evidence tending to prove the facts so found, and the finding is conclusive. Pomfret v. Barnard, 44 Vt. 527.\\nOn that finding the only remaining question is, whether the ruling that this action could not be maintained was correct. We insist that it was. The wife had neither title nor right of possession, and cannot maintain the action. Schuyler v. Leggett, 2 Cow. 660; People v. Bickerts, 8 Cow. 226 ; Porter v. Bleiler, 17 Barb. 149 ; Bradley v. Covel, 4 Cow. 349 ; 1 Chit. PL 148 ; Taylor L. & Ten. ss. 19, 56, 57, 60 ; Martin v. Watts, 7 T. R. 79.\", \"word_count\": \"2228\", \"char_count\": \"12647\", \"text\": \"The opinion of the court was delivered by\\nRedfield, J.\\nThe plaintiff's wife is the owner of the premi- \\u2022 ses. The husband attempted to lease them to the defendant for the term of one year, and signed a written contract for that purpose. Before anything was done under the contract, the defendant was notified that a lien on the crops, as security for the rent, was a part of the contract, and accidentally omitted in the writing, that the premises were the property of the wife Judith; and the defendant was forbidden to enter upon the premises. The written contract was inoperative and void as to Judith; and the defendant, an intruder in entering upon the premises. The defendant took possession of the house in April, and, in July after, cut hay' upon the farm, and afterwards sold it, for which this action of trover is brought.\\nIt cannot, we think, be claimed that the writing or lease gave character to defendant's acts of possession. The defendant's intrusion into the house was one distinct act of trespass ; the cutting of grass in the meadow was another. If the defendant disseised the plaintiffs in the whole premises, then the plaintiffs could recover in an action of trespass quare clausum only for the first act, unless they re-entered before suit, when they could recover for all and every act. This rule of the common law, based on artificial and subtle fiction, is the law of this State. Cutting v. Cox, 19 Vt. 517 ; Stevens' Exrs. v. Hollister, 18 Vt. 294. Yet, in the latter case Williams, C. J., dissented and vindicated the more sensible rule \\u2014 certainly more consonant with justice. The case shows that the defendant's entry upon the premises was forbidden by the plaintiff Philip, because he had not inserted in the writing a lien upon the crops, as agreed; that the property, both real and personal, was the sole and separate property of the wife Judith ; that \\\" the writing was void as to Judith \\\"; and there was no \\\" privity of contract or estate \\\" between defendant and Judith. A suit was pending, at the time the hay was converted, to oust defendant from the. possession. The exceptions state that \\\" the court found that the possession of the premises aforesaid by the defendant was with the knowledge and acquiescence of the plain.tiff Judith.\\\" If that statement means that the said Judith had so far \\\" acquiesced\\\" that she had adopted the contract of her husband and made it her own, then the defendant was the tenant of the said Judith, for the year, and entitled to the annual crops. But the exceptions also state that at the time of the conversion Judith was pressing the most summary process of the law to eject defendant from the possession. This was hardly \\\" acquiescence.\\\" If, as the proof tended to show, the defendant intruded, without right, into the possession, and held it against the will of the owner, the act was wrongful, and the intruder gained thereby no right of property in the premises or its products. And if the owner became wholly disseised, in an action of trespass, it is probable that the owner could, without re-entry, recover only for the act of disseisin, which was.the first entry. But this by no means determines that the disseisor acquired property rights in the standing grass or. timber on the premises. They pertain to the realty, and, when severed from it, continue to be the property of the owner of the land. And in this case, if the entry upon the premises by the defendant was wrongful, and continued against the will of the plaintiff Judith, or, if he entered with her consent, upon the condition that she should have the crops till the rents were paid, then the conversion of the hay by defendant to his own use was wrongful as to the plaintiff Judith. Judith was the owner of the property, and continued so, unless she became party to a contract by which she parted with her title. In Pratt v. Battles, 28 Vt. 685, the court, Isham, J., suggest a doubt whether trespass can be sustained for removing wood cut on premises by one long in adverse possession of the premises under claim of title. But the court adjudged in that case that the plaintiff could recover only limited damages for removing the wood a short space on the same farm. The question was not made in argument; and the case, in its facts, differs widely from this. We think there is no fiction of the law that would prevent the plaintiffs' recovery, unless they have parted with their right and title.\\nJudgment reversed, and cause remanded.\"}"
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+"{\"id\": \"761996\", \"name\": \"ZEBEDEE CHURCHILL v. FREDERICK BRADLEY\", \"name_abbreviation\": \"Churchill v. Bradley\", \"decision_date\": \"1886-02\", \"docket_number\": \"\", \"first_page\": \"403\", \"last_page\": \"408\", \"citations\": \"58 Vt. 403\", \"volume\": \"58\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:30:55.491591+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ZEBEDEE CHURCHILL v. FREDERICK BRADLEY.\", \"head_matter\": \"ZEBEDEE CHURCHILL v. FREDERICK BRADLEY.\\nPromissory Note. Consideration. Ignorantia juris, etc.\\nThe surrender of an old promissory note is a sufficient consideration for a new one executed by a surety, although the surety had been released from .payment of the old note by the action of the insolvent principal, where both parties knew the substantia] facts, hut, being ignorant of the law, in good faith supposed the surety was liable for the old note.\\nAssumpsit in common counts. Heard by the court, December Term, 1885, Tapt, J., presiding. Judgment for the plaintiff.\\nIt appeared that one James Brown, as principal, with E. K. Slack and the defendant as sureties, executed a promissory note for 8100, bearing .date the 29th day of July, 1884, and payable to the Woodstock National Bank in six months from date.\\nThe note was passed by the said Brown to the bank, and by it discount\\u00e9d at or about the time of its date for Brown, who had the whole avails.\\nThe note remained the property of the bank until September 15, 1884. At that time the principal in the note, agreed with the plaintiff in this action, that he should take up that note and pay the bank, and hold the same , as the hank had held it, against the signers as his security.\\nAnd accordingly the plaintiff passed the money to Brown, who took it, and went to the bank, and informed the officers that he would take up his note, which he did, the bank understanding and treating it as a payment, and marking the note as a paid note, and knowing nothing of the arrangement between the plaintiff and Brown.\\nBrown took the bank note and passed the same to the plaintiff in the evening of the same loth day of September.\\nThe agreement was entered into between the plaintiff and Brown, and the money advanced by the plaintiff, in good faith, supposing that when he took the note he would hold it the same as the bank was then holding it.\\nOn the Gth day of February, 1885, the plaintiff took the note in suit, then already written and signed by E. C. Brown, wife of the principal on the bank note, to the defendant at his residence in Plymouth, for the purpose of getting him to sign it in place of the bank note.\\nAt that time the said Slack had become insolvent, and this was known to the parties; and the said Brown was insolvent, and his creditors had petitioned the court to adjudge him such, but the defendant was not aware of Brown\\u2019s insolvency until after he executed the new note.\\nThe plaintiff met defendant at his house and told him that he held the bank note, and that the defendant was holden to pay the same; and the plaintiff in good faith so believed, and the defendant so believed, and signed the note in suit as the plaintiff asked him to do.\\nThe liability of the defendant was on this occasion discussed by the plaintiff and defendant.\\nThe plaintiff did not inform the defendant, nor had the defendant any knowledge that the bank treated and had marked the bank note as paid until after the defendant had signed the note in suit, and the plaintiff had taken it and put it in his pocket.\\nThe bank note has ever since been in the possession of. the defendant or his counsel.\\nThe next Saturday after the defendant had signed the new note he went to the plaintiff\\u2019s residence in Woodstock, and told him he should never pay said note until compelled to.\\nThe suit was brought on the new note.\\nW. W. Stickney, for the defendant.\\nWhatever amounts to satisfaction of a bill or note by the maker or acceptor operates as an absolute discharge of all parties collaterally liable. 2 Dan. Neg. Inst. 326.\\nPayment is the discharge of a contract. When a party to a note produces the money and takes it in, he cannot show that he was acting as the secret agent of another, and convert that other into a purchaser. And the payment of a note by the principal discharges 'the surety. Eastman v. Plumer, 32 N. H. 238; Lancy v. Clark, 64 N. Y. 209; Greening v. Patten, 51 Wis. 150; Burr v. Smith, 21 Barb. 262; Chapman v. Collins, 32 Cush. 163.\\nIn Lancy v. Clark, supra, the court say: \\u201cTo make a sale or transfer takes two parties, one to sell, and the other to buy.\\u201d\\nThe fact that the defendant was ignorant that the bank understood and treated its note as a paid note cannot aid the plaintiff, but relieves the defendant from all liability on his new promise.\\nThe indorser of a note, payment of which has not been demanded of maker, is not liable on his subsequent promise to pay, made in ignorance of the fact of no demand. Low v. Howard, 11 Cush. 268.\\nA drawer\\u2019s promise to pay an. overdue check without knowing the fact that it had 'not been duly presented to the bank for payment is not binding upon him. Kelley v. Brown, 5 Gray, 108; 1 Par. N. & B. 201.\\nThere was no consideration for the new not\\u00e9. 1 Chit. Con. 69, 71; Mete. Cont. 193 et seq.\\nWilliam E. Johnson, for the plaintiff.\\nThe exceptions find that every one acted in good faith. If the new note had not been given, the plaintiff could have maintained a suit on the bank note in the name of the bank, and recovered the money paid by him. Keith v. Goodwin, 31 Yt. 268.\\n\\u201cThe fact that a note executed for the purpose of raising money is made payable to a particular bank or individual is merely a formal and not a substantial part of the contract. In such cases it is well understood that the note goes into the market as money, and in exchange for money, to any party who will make the discount.\\u201d\\nA different rule prevails in some states. Bank of Montpelier v. Joyner, 33 Yt. 481.\\nIn Bank of Newbury v. Bichar\\u00e1s, 35 Vt. 281, Barkett, J., says: \\u201cA surety is an original maker, and becomes primarily and absolutely liable, as much so as the principal, to any party lawfully holding the paper.\\u201d F. & M. Bank v. Humphrey, 36 Yt. 554.\\nThe case is distinguishable from Eastman v. Plumer, 32 N. H. 238, and Lancyv. Clark, 04 N. Y. 209, in this, that the notp in each of the above cases was due and had accomplished the purpose for which it had been given, and, as is well said in the New York case, being taken after due was taken from the principal and not from the bank and was taken subject to any defences in the hands of the principal.\\nThose cases may be sound and still the' position here claimed in this case correct.\\nIf we are right in our position now taken that ends the case and the judgment below -is correct and should be affirmed.\\nBut the note was good against Brown, and its surrender Avas a sufficient consideration for the new note. 1 Dan. Neg. Inst. s. 185; Arnold v. Sprague, 34 Yt. 402.\", \"word_count\": \"2032\", \"char_count\": \"11002\", \"text\": \"The opinion of the court was delivered by\\nRoavell, J.\\nTreating the bank note as paid as to the defendant, and him as -discharged therefrom, it certainly remained good in the hands of the plaintiff as against Brown, the principal; and this raises the question whether the surrender of it by the plaintiff to the defendant constituted a sufficient consideration to sustain the note in suit. We think it did.\\nIt is fairly to be gathered from the case, that -when the. defendant signed the new note he was aware of all xthe facts connected with the plaintiff's holdership of the old note, except the fact that the bank had marked it as paid, and this he knew immediately after, when the note was .surrendered to him. So on the occasion of giving the new note he was aware of all the facts in the premises. The plaintiff made no misrepresentation, but acted in good faith in the matter, and the parties discussed together the question of defendant's liability on the bank note, and both believed him liable, and therefore the new note was taken and the old note given up. Thus it appears that the new note was not given under any mistake of fact, not even of the fact of the old note having been marked as paid, for the defendant knew that on the spot \\u2014 and it was all one transaction\\u2014 but did not regard it of sufficient importance to even speak of it, much less, to offer to return the old note and to demand back the new; nor has he ever done that, but still retains the old note, which makes against him. The most that can be said is, that the new note was given in ignorance of the law. But this will not avail the defendant. In Stevens v. Lynch, 12 East, 38, the drawer of a bill of exchange, knowi\\u00f1g that time had been given by the holder to the acceptor, but apprehending that he was still liable on the bill in default of the acceptor, three months after it was due, said he knew he was liable and would pay it if the acceptor did not, \\u2014 and it was held that he was bound by the promise, s. c. 2 Camp. 332. The universal rule is, ignorantia juris non excusat, the word jus being used as denoting general law \\u2014 the ordinary law of the land, and not a private right. 1 Benja. Sales, s. 611. The cases that hold that money paid in ignorance of the law is not recoverable are analogous. Brisbane v. Dacres, 5 Taunt. 144; Clarke v. Dutcher, 9 Cow. 674.\\nAny act that is a detriment to the plaintiff is a sufficient consideration for a promise to pay money. Williamson v. Clements, 1 Taunt. 523. It was a detriment to the plaintiff to give up the old note, as it was good against Brown; and the fact that Brown was insolvent makes no difference, for the note must be taken to have had some value, and a small consideration will support a larger promise. Hitchcock v. Coker, 6 A. & E. 438; Creswell, J., in Southall v. Rigg, 11 C. B. 481, 494; Denman, Ch. J., in Haigh v. Brooks, 10 A. & E. 309; Harrington v. Wells, 12 Vt. 505.\\nIn Shortrede v. Cheek, 1 A. & E. 57, the giving up of a note against a third person was held to be a sufficient consideration for a promise to pay the amount of it. Parke, J., said: \\\" There is no doubt that the giving up of any note on which the plaintiff might sue would be a sufficient consideration.\\\" In Haigh v. Brooks, 10 A. & E. 309, the consideration for the promise was, that plaintiff gave up to defendant his guaranty on behalf of a third person; and it was contended that the guaranty was void for not expressing a consideration on its face, and that therefore the giving of it up constituted no consideration for the promise. But without deciding whether the guaranty could have been made available or not, the Queen's Bench gave judgment for the plaintiffs on the ground that they had parted with something they might' have kept and the defendant obtained that which he desired by means of his promise; that both being free and able to judge for themselves, the defendant would not be justified in breaking his promise on afterwards discovering that the thing in consideration ' of which he made the promise did not possess the value he supposed it did. The Exchequer Chamber affirmed that judgment, both on the ground that the guaranty might have been made good by explanatory evidence, and on the ground \\u2014 -Maul\\u00e9, J., doubting \\u2014 that the actual surrender of the possession of the paper to the defendant was a sufficient consideration without reference to its contents.\\nThese authorities are decisive on this point, and the judgment is affirmed.\"}"
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+"{\"id\": \"762075\", \"name\": \"JAMES GALUSHA WEATHERHEAD, AP'T, v. EDGAR W. STODDARD, EX'R OF PH\\u0152BE MARY HOPE WEATHERHEAD'S WILL\", \"name_abbreviation\": \"Weatherhead v. Stoddard\", \"decision_date\": \"1886-02\", \"docket_number\": \"\", \"first_page\": \"623\", \"last_page\": \"635\", \"citations\": \"58 Vt. 623\", \"volume\": \"58\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T23:30:55.491591+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Powers, Yeazey, Taft, and Rowell, JJ.\", \"parties\": \"JAMES GALUSHA WEATHERHEAD, AP\\u2019T, v. EDGAR W. STODDARD, EX\\u2019R OF PH\\u0152BE MARY HOPE WEATHERHEAD\\u2019S WILL.\", \"head_matter\": \"WINDHAM COUNTY,\\nFEBRUARY TERM, 1886.\\nPresent: Powers, Yeazey, Taft, and Rowell, JJ.\\nJAMES GALUSHA WEATHERHEAD, AP\\u2019T, v. EDGAR W. STODDARD, EX\\u2019R OF PH\\u0152BE MARY HOPE WEATHERHEAD\\u2019S WILL.\\nWill. Vested Estate. Contingent Estate.\\nNo estate will be held contingent unless very decided terms are used in the will, or it is necessary, to hold the same contingent in order to carry out the other provisions or implications of the will; thus, the testator bequeathed his estate to trustees in trust for his daughter. They were directed to apply, if necessary, the whole income to her education and maintenance, and, when she should arrive at eighteen or be married, it was discretionary with them whether or not to deliver to her the whole estate. In case the legatee died before eighteen the estate was disposed of by bequests over. She was never married and died at twenty-three, with the funds in the possession of the trustees; Held, that the daughter took a vested estate at least when she was eighteen, which, upon her decease, passed to her devisees.\\nAppeal from a decree of the Probate Court. Heard on an agreed statement of facts and the will of Alanson E. Weatherhead, September Term, 1885, Royce, Ch. J., presiding. Judgment affirming the decree of the Probate Court. The decree of the Probate Court was:\\n\\u201c It is ordered and decreed by the court here that all the property and estate left in trust by the will of Alanson E. Weatherhead passes by the will of said Mary H. Weather-head as her will directs, and that the balance of $5,783.19 remaining in the hands of said executor be held in trust by the said E. W.- Stoddard during the life of Gertrude A. Lynde, now Mrs. Gertrude A. Hunt, and the annual interest and use thereof paid to her; after the decease of said Gertrude A. Hunt the principal to be paid and transferred to the residuary legatee named in the will of said deceased.\\u201d\\nThe fourth clause of the will commenced, as follows: \\u201cAnd in case the said Phoebe Mary Hope Weatherhead shall decease before arriving at the age of eighteen years, then I give and bequeath to the said Lysander W. Howe, the sum of five hundred dollars in current money, in case he shall survive, the said Phoebe, and the rest and residue of my estate, after the payment of the legacy aforesaid, to be divided as follows, to wit,\\u201d etc.\\nThe other facts are sufficiently stated in the opinion of the court.\\nJames M. Tyler and Martin & Eddy, for the plaintiff.\\nThe testator gave nothing to his daughter by the third paragraph in his will. By it the estate was given to the trustees for her benefit, and was not to vest in her except on the condition precedent that the trustees should adjudge it best that it should so vest, which condition has never been performed.\\nIt is claimed that the fourth paragraph is conclusive of the testator\\u2019s intention to have his estate pass to his daughter when she was eighteen; but the fourth paragraph certainly did not give her the estate; it only disposed of it \\u201cin case the said Phoebe should decease before arriving at the age of eighteen years.\\u201d\\nThere are but two bequests in the will, including the provision for the daughter\\u2019s support, both of which are conditional: 1st. The bequest to the daughter, conditional on her becoming eighteen, etc., and on the trustees\\u2019 judgment and discretion. 2d. The bequest to the persons and in the shares named, conditional that the daughter did not live to be eighteen, and perhaps that the estate did not vest in her in her life-time.\\n\\u201c Conditions are subject to the well known division into conditions precedent and conditions subsequent. When the condition is of the former sort the legatee has no vested in terest till .the condition is performed.\\u201d 2 Will. Ex. 1081; 2 Red. Wills, 283.\\nConditions precedent are such as must happen or be performed before the estate can vest or be enlarged; they admit of no latitude; they must be strictly, literally, and punctually performed. It is a known maxim that when the estate is to arise- upon a condition precedent, it cannot vest till that condition is performed. 2 Will. Ex. 1079; 1 Sliep. Touch, c. 6, 117.\\n\\u201c If the language of the particular clause, or of the whole will, shows that the act on which the estate depends, must be performed before the estate can vest, the condition is of course precedent, and unless it be performed the devisee can take nothing.\\u201d Marshall, Ch. J., in Finlay v. King's Lessees, 3 Pet. 376.\\nA devise to a daughter when she shall be married, does not vest meantime, but goes to the heirs. 2 Burn Eccl. 562, 576.\\nA devise to a man when he shall marry testator\\u2019s daughter does not vest till he marries her. 1 Keb. 802.\\nAnother rule is, when the legacy is given when the legatee attains a certain age, if the devisor directs the interest of the legacy to be applied in the meantime for the benefit of the legatee, there being an absolute gift of the interest, the principal will be deemed to have vested. See Patterson v. Ellis, 11 Wend. 298; 2 Red. Wills, 232; Vandryv. Geddes, 1 Russ. & M. 203; Atkins v. Hiccocks, 1 Atk. 500.\\nThe bequest was not made to Phoebe, but to the trustees for her benefit. It was not an immediate gift, the payment only being deferred, but both the bequest and the payment were deferred.\\nThere is no absolute gift of the interest to the daughter, that being given with the estate itself to the trustees with directions \\u201cto apply from time to time such portion, or, if necessary, the whole of the income to the support,-\\u201d etc., as they deemed necessary.\\nThere was a bequest over if the daughter did not marry or live to be eighteen. Had the estate vested, the bequest over would have been defeated.\\nIf it be a condition precedent to a gift of a legacy or other interest that the trustees should exercise their power in favor of the object \\u2014 whether the power require an appointment by them or merely their assent to the gift \\u2014 no interest will vest in the donee until the power be duly exercised, and if the trustees refuse or neglect to exercise it, the gift cannot be enforced. Hill Trust. 490; Perry Trust, ss. 19, 20, 507; Pinky. De Thuisey, 2 Mad. Ch. 157; Malcolm v. O' Callaghan, Id. 523; French v. Davidson, 3 Id. 205; Walker v. Walker, 5 Id. 257; Wheeler v. Walker, 2 Conn. 190; Downer v. Downer, 9 Yt. 231; Sharon v. Simons, 30 Yt. 458; Ferre v. Am. Board, 53 Yt. 162; Bacon v. Bacon, 55 Yt. 243; Greenoughy. Welles, 10 Cush. 571; Gibbons v. Shepard, 125 Mass. 541; 2 Red. Wills, 235; Lett v. Randall, 10 Sim. 112.\\nHaskins & Stoddard, for the defendant.\\nWe claim that the estate of Alanson E. Weatherhead, by virtue of his said will, vested in the said Mqxy H. immediately upon his decease, subject to be defeated, only, in the event of her death before arriving of age. And that upon her arriving at the age of eighteen years, said estate became absolute in her, and would have descended to her heirs had she died intestate.\\nThe appellant, who was one of the trustees under said will, insists that no portion of this estate became the property of the said'Mary; but just what construction he claims should be given to the will of said Alanson, and upon what legal grounds, we are in deubt.\\nIt was clearly the intention of the testator that his daughter and only child should have his estate in fee and possession, either in the event of her marriage, or when she became of age. If the said Mary H. had married and died under eighteen years of age, leaving children, would there be any doubt as to whom the testator intended to leave his ' estate ?\\nIf the testator did not bequeath his estate to the said Mary in the event of her attaining the age of eighteen, then it passed to her as his heir at law; for it is clear that the said Alanson E. made no provision for the disposition of his estate, if his daughter did not take the same upon becoming of age. In either event the said Mary could dispose of the same by her will. Doe v. Lea, 3 T. R. 41; Ashby v. Palmer, 1 Mer. 296; Good Title, ex. d. Hayward v. Whitby, 1 Burr. 229; Eastman v. Baker, 1 Taunt. 174; Doe, ex. d. Player v. Nicholls, 8 E. C. L. 92; Doe, ex. d. Cadogan v. Ewart, 34 E. C. L. 187; Doe v. Watson, 8 How. 263 (17 Curtis, 581); Oropley v. Cooper, 19 Wall. 168; Carpenter v. Heard, 14 Pick. 449; Rey, Ch. ss. 171, 211, 218.\", \"word_count\": \"4674\", \"char_count\": \"25795\", \"text\": \"The opinion of the court was delivered by\\nRowell, J.\\nAlanson E. Weatherhead died testate in 1862, leaving only one child surviving him, Phoebe Mary Hope Weatherhead, then about two years old. His will was duly probated, and the third clause of it reads as follows:\\n\\\" I give and bequeath all my estate, real and personal, to Galusha Weatherhead, Marcus Weatherhead, and Lysander W. Howe, to be held by them in trust for my daughter and only child, Phoebe Mary Hope Weatherhead; and I hereby direct the trustees above mentioned to apply from time to time such portion, or if necessary the whole, of the income from said trust estate towards the support, maintenance, and education of the said Phoebe Mary Hope Weatherhead; and when she shall arrive at the age of eighteen years, or in case she shall marry before arriving at the age aforesaid, then in either case the said trustees shall pay over to the said Phoebe Mary Hope Weatherhead the whole of said trust estate, or such portion thereof as in their judgment and discretion shall seem most for the benefit and advantage of the said Phoebe,\\u2014 and I leave this matter to the best judgment and discretion of the aforesaid trustees.\\\"\\nBy the fourth clause of his will, in case the said Phoebe died before eighteen, the testator disposed of all his estate by divers bequests over.\\nThe said Phoebe was never married, and died testate at about the age of twenty-three. Her will was duly probated, whereby, after one or two small specific legacies, she gave the use of the residue of her estate to Gertrude A. Lynde \\u2014 now Mrs. Hunt \\u2014 for life, with remainder over.\\nSaid trustees retained in their hands all of said estate, paying therefrom only what was necessary for the support and education of the said Phoebe, and never paid the same over to her after she became eighteen, acting in withholding it according to their best judgment and discretion, and as they deemed most for her benefit and advantage, and she never demanded it of them.\\nThe plaintiff claims that by the terms of the will the taking' of a vested interest in her father's estate by the said Phoebe was made to depend upon the judgment and discretion of the trustees, and as their judgment and discretion were never exercised in her favor by paying ov er the estate to her, that she never took a vested interest therein; while the defendant claims that she took a vested interest therein on the death of her father, subject to be defeated only by her death before eighteen, and that on becoming eighteen the estate became hers absolutely, and would have descended to her heirs had she died intestate, and that if it did not vest in her at least at eighteen, then there was no testamentary disposition of it after that, and so she took it by inheritance.\\nThis last contention is not sound; for there was at all events a discretionary trust, liable to be executed in favor of the said Phoebe by paying the fund over to her at any time after she became eighteen, and hence there was a testamentary disposition, operative as long as she lived with the trust unexecuted; for the legal estate, which vested in the trustees by the will, would continue in them as long as the purposes of the trust required it. Bayley, J., in Doe, d. Player v. Nicholls, 1 B. & C. 336.\\nThis brings us to the single question, whether the said Phoebe ever took a vested interest in this estate.\\nThe proposition is deducible from the authorities, especially from the more recent English authorities, that no estate will be held contingent unless very decided terms of contingency are used in the will, or it is necessary to hold the same contingent in order to carry out the other provisions or implications of the will. 2 Red. Wills, 627.\\nIf the testator had stopped with directing the trustees to pay over the estate to his daughter on arriving at eighteen or marrying, it is clear on all the authorities that the legacy would have vested on the happening of either of those events if not before; and so it comes to this, whether the discretionary clause makes any difference. We think it-does not, both on the construction of the will and on authority.\\nWhen a man sits down to dispose of his property by will, it is fair to presume that he does not intend to die intestate nor to become intestate after death, and so courts lean against intestacy. Now here the testator made no bequesfs over except in the single event of his daughter's dying before eighteen. If, then, she did not take a vested interest at least at eighteen, the testator became intestate at her death, and his estate is left to be distributed by law; for it would be absurd to read this will as giving bequests over in case his daughter died after eighteen, as she did. Then again, the very fact that he made no disposition over in case she died after eighteen, is a circumstance of no little weight to show that he intended his estate to vest in her at all events on her becoming eighteen. 2 Red. Wills, 606. In England a gift over in one event is generally regarded as favoring vesting in all other events, on the ground that the gift over being made to depend upon particular events, the presumption is that in every other event the estate was in tended to remain in the first taker. But we think, as said by Judge Redeield, that this form of argument is more forcible when there is no disposition over, for then it may well be said that the testator intended the estate to vest in the last donee named.\\nThe trustees were the brothers and a brother-in-law of the testator. He made them his executors, and, reposing confidence in them, was willing to leave it to them as trustees to say when and to what extent his daughter after becoming eighteen or marrying should be permitted to come into the actual possession and enjoyment of his estate; but we do not think he intended to leave it to them to say whether she should ever have it at all or not in interest. He had willed it \\\"in trust for her,\\\" and the discretionary clause \\u2014 \\u2022 treating it as valid, but as to which see Gray, Perp. s. 120 \\u2014 was inserted for her supposed benefit, and more by way of giving directions to the trustees as to the time and manner of payment than as importing condition or' contingency. And this idea of a trust is important, and well-nigh decisive of the case. The remarks of Lord Justice Turner on this subject in Oddie v. Brown, 4 De G. & J. 179, 193, are exceedingly pertinent. He says: \\\" When, as in this case, funds are given to trustees to be held by them upon trusts, directions must of course be given to them as to the time and manner in which they are to deal with the funds in favor of the persons for whose benefit they are intended. Words, therefore, that in other cases might import condition or contingency may in such cases be used for a wholly different purpose, namely, for the purpose of conveying the necessary directions to the trustees. The court, therefore, in such cases, looks, I apprehend, more to the substance of the gift than to the words in which it is expressed. It considers for whose benefit it was made \\u2014 who were intended to be the cestuis que trust.\\\" And the same idea is brought out by Lord Cottenham in Saunders v. Vautier, 1 Cr. & Ph. 240, where he says: \\\"It is argued that the testator's great nephew does not take a vested interest in the East India stock before his age of twenty-five, because there is no gift but in the direction to transfer the stock to him at that age. But is that so? There is an immediate gift of the stock; it is to be separated from the estate and vested in trustees; and the question is whether the great nephew is not the cestui que trust of the stock. It is immaterial' that these trustees are also executors; they hold the stock as trustees, and the trust is, to accumulate the income till the great nephew attains twenty-five, and then to transfer the stock and the accumulated interest to him. There is no gift over, and the stock either belongs to the great nephew or will fall into the residue in the event of his dying under twenty-five. I am clearly of opinion that he is entitled to it.\\\" It is not enough to say that the Court of Chancery would not have controlled the judgment and discretion of these trustees further than to have compelled an honest exercise thereof, according to Bacon v. Bacon, 55 Vt. 243, Sharon v. Simons, 30 Vt. 458, French v. Davidson, 3 Mad. 396, and Walker v. Walker, 5 Mad. 424; for that is quite another question from saying whether this legacy vested, and is not at all determinative of it, for the legacy might have vested and yet the legatee not have been entitled to the possession and full enjoyment of it.\\nWe have carefully examined all the cases cited in argument and many others, but shall not attempt to review them all. The first case to which we desire to call attention is Churchill v. Lady Speake, 1 Vern. 251, which was this: Prideaux, plaintiff's grandfather, bequeathed to his wife a mortgage of \\u00a31,000, desiring her to give \\u00a3500 of it to the plaintiff, \\\" but for the time and manner of doing it\\\" he left \\\"\\u2022 it freely to herself, andas she shall see it best for her.\\\" The testator died about 1664, the plaintiff then being about nine years old. Mrs. Prideaux, plaintiff's grandmother, lived till 1683, when she died, making the Lady Speake her executrix, having paid no part of the \\u00a3500, neither was the same in all that time so much as demanded of her. Plaintiff's bill was, to have this legacy of \\u00a3500 paid to her with interest; and the Lord Keeper, notwithstanding there was no demand proved, and though the testator left the time and manner of paying to his wife, decreed the \\u00a3500 with interest from the death of the testator, being near twenty years. A note to the case says that the court was fully satisfied that the nature of the case was a trust in the grandmother for the plaintiff.'\\nIn Hone's Executors v. Van Schaick, 20 Wend. 564, the testator gave $fi;000 to each of his grandchildren who should be living at the time of his death, to be paid to them respectively on attaining the age of twenty-one or marrying, such payments, however, not to be made without the approbation of the parents of such grandchildren expressed in writing, \\u2014 and it was held that the legatees severally took a vested interest immediately on the death of the testator. Mr. Justice Bronson, speaking for the court, said if the testator had stopped after directing the legatees to be paid on attaining twenty-one or marrying, the legacies would clearly have been vested, and that the clause requiring the approbation of the parents made no difference, that it provided for only a future postponement of the time of payment, that the gift was still absolute, and referred to Churchill v. Lady Speake, 1 Vern. 251, as authority. It is true that case is a little different from this, for there the gift was directly to the legatee, while here it is contained in the direction to pay; but Yice-Chancellor Wigram says that the court never intended to decide that the gift of a legacy under the form of a direction to pay at a future time or on a given event, was lpss favorable to vesting than a simple and direct gift of a legacy at a like future time or on a like event, but has intended only to assimilate those cases to each other, and to distinguish both from the class of cases in which there has been a gift of a legacy and also a direction to pay at a future definite time distinct from the gift. Leeming v. Sherratt, 2 Hare, 14, 18.\\nMillard's Appeal, 87 Pa. St. 457, is much in point. There the testator willed to his executrix $30,000 in trust, to be put at interest, and to pay over the interest from time to time when and as received unto his nephew, Joseph M. Millard; and in case the said Joseph should be sober and industrious in his habits, the executrix was authorized \\\"to pay over to him from time to time such portions of the principal as she in her judgment shall deem right and proper; or she may at any time she may deem it right and proper pay over to him the whole of the said $30,000.\\\" In the exercise of the discretion thus conferred upon her, the executrix had paid to him a little more than $4,000 of the principal when he died, leaving a widow, the appellant, and one daughter, Margaret Blanche Millard, and this appeal was taken from a decree dismissing exceptions filed to the executrix's final account as trustee of the fund, on the ground that she had not therein charged herself with the balance of the principal in her hands, \\u2014 and it was held that the legacy vested. The court said that plainly the testator intended to. give the entire beneficial interest to his nephew, and that the discretionary clause in nowise affected the question of intent, but was designed to provide for the nephew and at the same time to prevent the fund from being wasted through idleness or intemperance; that as the condition on which the principal was to be paid had become impossible of performance by the death of the nephew, and as the trustee could not keep the money, and there was no gift over, and it did not pass under the residuary clause, either the testator died intestate as to this fund or it must go to the personal representative of the nephew; that the court regarded the question as free from doubt, but said if it did not, it would feel bound to apply the rule favoring vested rather than contingent estates, primary rather than secondary intent. The court, indeed, laid stress on the fact that there was an absolute gift of the income, and said that a gift of the income of a fund without limitation as to time was a gift in perpetuity and carried the fund itself; and if we were to adopt plaintiff's theory as to the non-vesting of this legacy on other grounds, and follow some recent and very respectable English authorities \\u2014 which we do not find it necessary to do in order to sustain our judgment \\u2014 we should have that precise element in this case, namely, a gift of the income of the entire estate without limitation as to time. Thus, in Fox v. Fox, L. R. 19 Eq. Cas. 286, there was a discretionary power in the trustees to apply the whole income of the fund, or so much thereof as they might from time to time think proper, for the maintenance and education of the legatees until their shares became payable, which was at twenty-one, and the question was whether there was a gift of the whole income, within the rule laid down in Watson v. Hayes, 5 My. & Cr. 125, and other cases, that a legacy which, upon the terms of the gift, would be contingent on the legatee's attaining a certain age, may become vested by a gift of the interest in the meantime, whether directly or in the form of maintenance, provided it be the whole interest, \\u2014 and it was held on the authority of Harrison v. Grimwood, 12 Beav. 192, that it was a gift of the whole income, followed by a discretion to apply less than the whole, and consequently that the legacy vested, \\\"and not the less so because there was a discretion conferred on the trustees to apply less than the whole income for that purpose.\\\"\\nSo in Rouse's Estate, 9 Hare, 649, there was a gift of a legacy in trust, to apply so much of the interest thereof as the trustees should think proper in the maintenance of the testator's grandson until twenty-one, and then to pay the whole interest to him for life, and on his death, to stand possessed of the legacy and interest and all accumulations in trust for his children, with remainder over in default of children, \\u2014 and it was held that the provision for maintenance of the grandson during minority out of the interest, showed that the interest was intended for him; that the legacy vested in interest though not in possession before he became twenty-one; and that he was entitled to the interest that accrued during his minority and was not applied in his maintenance; and Wynch v. Wynch, 1 Cox, Ch. 433, was regarded as strong authority on the point. There a father gave legacies to his daughters, payable at twenty-one or marriage, but he made provision for their maintenance in the meantime out of another fund, \\u2014 and it was held that the legacies did not carry interest till the time of payment; but the Master of the Rolls said if maintenance had been payable out of the interest of the legacies he should have thought the daughters entitled to what they claimed.\\nNone of the cases referred to by the plaintiff are at all in conflict with the views here expressed.\\nIn Pink v. De Thuisey, 2 Mad. 157, the executor was directed to give the legatee the principal of the legacy ' ' only in case of an establishment or acquisition for him which seems advantageous to my executor, this disposition being an essential condition of the legacy I make to the said \\\" legatee, \\u2014 and it was held, taking the whole will together, that as to the principal of the legacy the intention was to give it on condition and not absolutely.\\nIn Malcolm v. O'Callaghan, 2 Mad. 349, the testator gave \\u00a32,000 to his two daughters, to be paid on marriage with consent of his executors, and if either died before twenty-five or marriage with consent, her legacy went to the other. One married before twenty-five without consent, and it was held that the intent was clear to make marriage with consent a condition precedent, and that, there being no bequest over, the condition must be complied with in order to entitle her to claim the legacy. Atkins v. Hiccocks, 1 Atk. 500, is to the same effect.\\nJudgment affirmed and ordered to be certified to the Probate Court.\"}"
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+"{\"id\": \"846745\", \"name\": \"In re B.S., Juvenile\", \"name_abbreviation\": \"In re B.S.\", \"decision_date\": \"1995-03-31\", \"docket_number\": \"No. 94-036\", \"first_page\": \"445\", \"last_page\": \"457\", \"citations\": \"163 Vt. 445\", \"volume\": \"163\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T22:53:36.743653+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.\", \"parties\": \"In re B.S., Juvenile\", \"head_matter\": \"In re B.S., Juvenile\\n[659 A.2d 1137]\\nNo. 94-036\\nPresent: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.\\nOpinion Filed March 31, 1995\\nRobert Appel, Defender General, and Anna Saxman, Appellate Defender, Montpelier, for Appellant.\\nJeffrey L. Amestoy, Attorney General, Montpelier, and Michael O. Duane, Assistant Attorney General, Waterbury, for Appellee SRS.\\nCharles S. Martin of Martin & Paolini, Barre, for Appellee Juvenile.\\nO. Whitman Smith of Kochman and Smith, Burlington, for Amicus Curiae Champlain Drug and Alcohol Services.\", \"word_count\": \"4239\", \"char_count\": \"26515\", \"text\": \"Dooley, J.\\nAppellant ES., mother of juvenile B.S., appeals an order of the Chittenden Family Court terminating her parental rights. Appellant claims that the family court erroneously ordered disclosure of her confidential communications to an alcohol counselor, and the counselor's treatment records, in violation of federal law; and that the court's conclusion that she could not resume her parenting duties within a reasonable time was error. She is joined in her claim of violation of federal law by amicus curiae Champlain Drug and Alcohol Services (CDAS), which runs the alcohol abuse treatment program in which she participated. Although we conclude that it was error to require disclosure of the communications and records, we affirm the termination of appellant's parental rights.\\nOn April 15,1992, six-month-old B.S. was placed in the custody of the Vermont Department of Social and Rehabilitation Services (SRS) because on two occasions appellant left the child with neighbors and returned to retrieve him several hours late and in an intoxicated condition. The family court later found B.S. to be a child in need of care and supervision (CHINS), and shortly thereafter, SRS filed a petition to terminate appellant's parental rights. During the. termination proceedings, SRS issued a subpoena to CDAS to compel production of appellant's treatment records, and to compel the testimony of her alcohol counselor. CDAS moved to quash the subpoena, asserting that federal law forbids disclosure of alcohol counseling records and the testimony of the counselor without the patient's consent, except in limited circumstances. The family court's order compelling the disclosure of appellant's records and the testimony of her alcohol counselor prompted this appeal.\\nAppellant's appeal is based primarily on federal law, which prohibits the disclosure of alcohol and drug abuse treatment records and confidential communications made by patients, where the'treatment is \\\"directly or indirectly assisted by any department or agency of the United States.\\\" 42 U.S.C. \\u00a7 290dd-2(a) (1994); see id. \\u00a7 '290dd-2 ; 42 C.F.R. \\u00a7 2.1-2.67 (1998). It is undisputed that CDAS receives funds from an agency of the federal government to support its alcohol abuse treatment program and that appellant was enrolled in this program. Thus, the disclosure restrictions of federal law were applicable to this case.\\nThe purpose of the federal statute is to encourage patients to seek treatment for substance abuse by assuring them that their privacy will not be compromised. See Whyte v. Connecticut Mutual Life Ins. Co., 818 F.2d 1005, 1010 (1st Cir. 1987) (\\\"confidentiality is necessary to ensure successful alcoholism treatment. Without guarantees of confidentiality, many individuals with alcohol problems would be reluctant to participate fully in alcoholism programs.\\\"); Commissioner of Social Services v. David R.S., 436 N.E.2d 451, 454, 451 N.Y.S.2d 1, 4 (1982) (\\\"Broad interpretation furthers the objectives of the Federal statute . by not chilling the willingness or discouraging the readiness of individuals to come to facilities operated under the statute.\\\"). The basic confidentiality rule is set forth by statute, 42 U.S.C. \\u00a7 290dd-2. The statute contains a broad authorization for rule-making. See id. \\u00a7 290dd-2(g). Pursuant to this authorization, the Secretary of Health and Human Services has adopted comprehensive regulations. See 42 C.F.R. \\u00a7 2.1-2.67.\\nTwo aspects of the confidentiality requirements are relevant to this appeal. The first involves the patient records maintained by CDAS on appellant. These records are not subject to subpoena unless the court finds good cause for disclosure. See 42 U.S.C. \\u00a7 290dd-2(b)(2)(C); 42 C.F.R. \\u00a7 2.64(d). Appellant and amicus argue that the court failed to follow proper procedures in determining whether good cause was present, and erred in finding good cause. Thus, appellant and amicus assert the court erred in requiring the records to be produced and used in the proceeding.\\nThe regulations describe the procedures and criteria that a court must employ before authorizing a disclosure of patient records. See 42 C.F.R. \\u00a7 2.64 (1993). First, the party seeking the information must file an application for a production order with the court, using a fictitious name to identify the patient. See id. \\u00a7 2.64(a). The court must provide adequate notice to the patient and the person possessing the records at issue, id. \\u00a7 2.64(b)(1), and must give an opportunity for these persons to respond either in writing or at a hearing. Id. \\u00a7 2.64(b)(2). Normally, this means the court must conduct a hearing on the application. All of these procedures must be conducted in a manner that protects the patient's privacy. Id. \\u00a7 2.64(a), (c).\\nA disclosure order may be entered only if the court determines that good cause exists. See 42 U.S.C. \\u00a7 290dd-2(b)(2)(C); 42 C.F.R. \\u00a7 2.64(d). This determination is to be made only upon a finding that alternative means of obtaining the information are not available, and that the interest in disclosure outweighs \\\"the potential injury to the patient, the physician-patient relationship and the treatment services.\\\" 42 C.F.R. \\u00a7 2.64(d)(2). Even if disclosure is authorized, the court must limit the order's scope of disclosure to minimize the impact on the patient's privacy. Id. \\u00a7 2.64(e).\\nIt is undisputed that SRS failed to use the procedure in the regulations. It began by issuing a subpoena to the CDAS alcohol counselor instead of to appellant. As such, the hearing came on CDAS's motion to quash. As discussed below, the court did not view the records in camera before ruling on whether disclosure would be ordered.\\nThe court's good cause determination rests on two findings: (1) SRS \\\"has no other means of obtaining the information contained in the . . . treatment files\\\" because appellant has not consented to disclosure; and (2) the \\\"public interest in production is great, and far exceeds the minor threat of embarrassment to\\\" appellant. In making the latter finding, the court was heavily influenced by the fact that the juvenile hearing in which the files would be used is not a public proceeding.\\nThe record production order was \\\"limited to those parts of the records . . . which are essential to determine whether [appellant's] parental rights should be terminated\\\" and required the file to be sealed to limit disclosure. In fact, the entire file was produced by the counselor, and no attempt was made to redact extraneous matter to comply with the order. It is unclear whether SRS or others used the records. At one point during his testimony, the counselor did use the records to refresh his recollection.\\nWe agree with appellant and amicus that the family court misapplied the good cause requirements in two important respects. First, the court could find good cause for production of the patient records only if an alternative means of obtaining the information contained within them was not available. Good cause cannot be demonstrated when production of the records is merely cumulative. See, e.g., United States v. Smith, 789 F.2d 196, 205-06 (3d Cir. 1986) (disclosure request denied because other sources of competent evidence available); Bell v. State, 385 So. 2d 78, 81 (Ala. Ct. Crim. App. 1980); David R.S., 436 N.E.2d at 455, 451 N.Y.S.2d at 5 (disclosure order reversed because other proof readily available through witness testimony). The family court misconstrued the regulation as allowing disclosure if the party seeking the records had no alternative method of obtaining the records, as opposed to the information within the records.\\nThis was more than a technical error. By the time the court issued the order requiring production of the records, extensive testimony about appellant's alcohol abuse had come from her SRS social worker and probation officer. The testimony of the SRS worker was a substitute for much of what was in the records because appellant had waived confidentiality with respect to the SRS worker, and the CDAS counselor and the SRS worker spoke frequently about appellant's diagnosis and treatment. The SRS worker recounted the substance of many of these conversations. Although we cannot make a definitive assessment because neither the trial court nor this Court has seen the records in dispute, we consider it highly likely that the records were cumulative and their disclosure was unnecessary.\\nSecond, the court failed to consider the potential injury to the physician-patient relationship and to treatment services in balancing the relevant interests. See 42 C.F.R. \\u00a7 2.64(d)(2); David R.S., 436 N.E.2d at 455-56, 451 N.Y.S.2d at 5-6. The court looked solely at the embarrassment to appellant from disclosure in light of the nonpublic nature of juvenile proceedings. See 33 V.S.A. \\u00a7 5523(c). Although we agree that it is relevant that juvenile proceedings are not public, the court's inquiry was far too narrow and omitted any consideration of appellant's willingness to participate in treatment if she knew that her diagnosis and treatment information could be used to terminate her parental rights. Again, this was not a theoretical issue because appellant had expressed concern about the confidentiality of the CDAS information and had revoked her consent to make it available to others.\\nWe also agree with appellant and amicus that the procedures employed by the court were inadequate to ensure a thorough good cause determination. If the court was concerned that the information in the records was unobtainable elsewhere, it should have first conducted an in camera review of the records to determine whether they revealed any unique and relevant information. Indeed, we are uncertain how a court can make a good cause determination without first examining the records to see what they contain. See State v. Harger, 804 S.W.2d 35, 37-38 (Mo. Ct. App. 1991) (trial court must make in camera inspection of records); Jane H. v. Rothe, 488 N.W.2d 879, 883 (N.D. 1992) (good cause determination requires in camera inspection to assess information contained in records).\\nFinally, we agree that the family court's order was not properly limited to protect against unnecessary disclosure pursuant to \\u00a7 2.64(e). On its face, the order appeared to comply with \\u00a7 2.64(e): disclosure was limited to the parties in the proceeding, the case file was sealed, and disclosure was limited to only those parts of appellant's records and communications which were essential to determine whether her parental rights should be terminated. The court failed, however, to evaluate the records to determine what information within them complied with the order, and the entirety of the records were produced in response to the subpoena. Apparently, the court intended to edit the records if they were offered in evidence, and this never occurred. The court's approach gave SRS access to the records, however, in violation of the confidentiality restrictions. The regulations clearly intend that any redaction occurs earlier, in defining what records must be produced in response to the subpoena, to avoid unnecessary breaches of confidentiality.\\nThe other part of the disclosure restrictions applicable to this case cover \\\"confidential communications\\\" where \\\"made by a patient to a program in the course of diagnosis, treatment, or referral for treatment.\\\" 42 C.F.R. \\u00a7 2.63(a). These restrictions apply both to confidential communications found in the CDAS records on appellant, as well as confidential communications to which the CDAS counselor might testify. Such communications may not be disclosed unless they fit within at least one of three exceptions. See id. Only one of the exceptions arguably applies here; it allows disclosure if \\\"necessary to protect against an existing threat to life or of serious bodily injury, including circumstances which constitute suspected child abuse and neglect and verbal threats against third parties.\\\" Id. \\u00a7 2.63(a)(1). The family court concluded that this exception applies because this proceeding involves child abuse and neglect.\\nWe are unable to concur with the family court's interpretation of the regulations. There was no showing that disclosure was necessary to protect B.S. against \\\"an existing threat to life or of serious bodily injury.\\\" The reference to child abuse and neglect proceedings is clearly limited to instances where such threat exists. This threat may have been present earlier in the juvenile proceedings, but custody by ES. was no longer in issue. Even if the threat were present, there is no indication that disclosure of ES.'s confidential communications to CDAS was necessary to obviate it.\\nIn its opinion, the court relied in part on \\u00a7 2.12(c)(6), which provides that the disclosure restrictions do not apply to state laws that mandate reporting of suspected child abuse; the regulation also provides, however, that the restrictions continue to apply throughout civil or criminal proceedings which may arise out of the reported abuse. We do not find this regulatory provision helpful; it merely clarifies that mandatory reporting of child abuse is not barred by the confidentiality provisions, and it expressly provides that the disclosure restrictions continue to apply in any case growing out of the original mandatory reporting exception. If anything, this additional section of the regulations supports the conclusion we have reached.\\nHaving concluded that the family court's disclosure order was improperly entered, we turn now to the impact this error had on the termination proceedings. Appellant argues that the nature of the court's error warrants an automatic reversal.\\nThe erroneous admission of evidence is grounds for reversal only if a substantial right of the party is affected. See V.R.C.E 61 (error in admission of evidence is grounds for new hearing only if \\\"refusal to take such action appears to the court inconsistent with substantial justice\\\") (applicable in juvenile proceedings by V.R.F.E 2(a)). We applied this standard in In re R.M., 150 Vt. 59, 65, 549 A.2d 1050, 1054 (1988), where the family court erred in admitting and relying on certain hearsay evidence. Noting that the burden \\\"is on the excepting party to demonstrate that the error resulted in prejudice,\\\" id., we considered the effect of the improper testimony on the court's decision. We concluded that reversal was appropriate only if the findings of the court, apart from the findings based on the improper evidence, did not support the court's conclusions. Id. at 66, 549 A.2d at 1055; see also In re M.B., 158 Vt. 63, 69-70, 605 A.2d 515, 518-19 (1992) (no reversible error where trial court's conclusion based on testimony properly in evidence). We have applied a similar analysis to unsupported findings of fact in juvenile proceedings. See In re A.F., 160 Vt. 175, 178-79, 624 A.2d 867, 869 (1993); In re C.M., 157 Vt. 100, 103, 595 A.2d 293, 294 (1991).\\nAppellant has made no showing here that the family court's use of information it erroneously obtained from the counselor was prejudicial. Because the counselor was in regular contact with the SRS worker, and the SRS worker testified to these conversations without objection, there was little additional relevant evidence supplied by the counselor. To the extent the records were used, we cannot find that they added any relevant evidence.\\nA review of the alcohol counselor's testimony also shows a sensitivity to unnecessary disclosure of appellant's confidential communications. The counselor opined that more was behind appellant's behavior than alcohol abuse. When asked to explain what other conditions were involved, the counselor declined to answer, and the SRS attorney did not pursue the matter. Thus, to the extent appellant had made disclosures to the counselor additional to those shown in the testimony of the SRS worker or the probation officer, these disclosures did not get into evidence.\\nWithout the testimony of the alcohol counselor, there was sufficient evidence for the court to conclude that appellant's parental rights should be terminated. In its final order, the court made almost forty separate findings in support of its decision, and few of these reveal any reliance on the improperly obtained CDAS information. The vast majority of the findings regarding the nature of appellant's alcoholism are grounded in testimony from others. For example, appellant's probation officer provided evidence relating to appellant's frequent relapses and the criminal behavior that resulted from these episodes. In addition, the SRS social worker testified that appellant's alcoholism caused the agency to remove another son from her custody almost ten years earlier.\\nIndeed, the court's key finding regarding appellant's alcoholism was that she needed to attend a residential treatment program of six months to one year in duration, and this duration was inconsistent with a conclusion that resumption of parental responsibilities could occur within a reasonable period of time. Significantly, the alcohol counselor's testimony on this point favored appellant. He testified that he did not recommend long-term care, but instead recommended a short-term community-based approach to treatment. Because this testimony benefitted appellant, it can not be considered unfairly prejudicial. See United States v. Donovan, 984 F.2d 507, 511 (1st Cir. 1993) (evidentiary rule that court erroneously used to admit evidence was more restrictive than appropriate rule; hence, errbr favored defendant and was not prejudicial), judgment vacated on other grounds, 510 U.S. 1069, 114 S. Ct. 873 (1994).\\nThe court also made findings concerning appellant's apparent apathy towards her relationship with B.S. For example, the court found that appellant chose to visit B.S. once instead of four times per week, and that she regularly missed about one visit per month. In addition, the court found that appellant occasionally left the visits with B.S. early because she was frustrated that the child did not acknowledge her as his mother.\\nBased on all of this evidence, exclusive of appellant's alcohol counselor's testimony and her treatment records, the family court's conclusion that appellant could not resume her parenting duties within a reasonable time is fully supported. This determination also answers appellant's argument that the family court erred in reaching this conclusion. Accordingly, the court's decision to terminate her parental rights was not premature.\\nAffirmed.\\nThe federal requirements were formerly set out in two separate statutes, one covering alcohol abuse treatment records and the other covering drug abuse treatment records. They were consolidated into the current 42 U.S.C. \\u00a7 290dd-2, covering substance abuse, by Pub. L. No. 102-321, \\u00a7 131,106 Stat. 323, 368-70 (1992).\\nThis requirement relates to patient records, but not the confidential communications made by the patient to the program even if contained in the records. See 42 C.ER. \\u00a7 2.63(a). An earlier version of the regulations limited disclosure to objective data, to express a similar distinction. See 52 Fed. Reg. 21796, 21808 (June 9,1987) (explaining 1987 amendments to regulations).\\nAppellant and amicus have not argued that this deviation from the regulations is ground for relief on appeal. We agree. See In re Baby X, 293 N.W.2d 736, 741 (Mich. Ct. App. 1980).\\nThe attorney for SRS, who was also present in the family court, asserts that he never read the records. The transcript indicates that the records were present in the court and were handled by the SRS attorney. They were not introduced into evidence. It is impossible to tell from the record whether the SRS attorney actually read any part of the records.\\nSRS relied upon a waiver theory below, but the family court did not explicitly rule upon it, and SRS has not relied upon waiver in this Court. In making its waiver argument, SRS relied heavily upon In re M.M., 153 Vt. 102, 106, 569 A.2d 463, 465 (1989), in which this Court held that a parent waived her patient privilege by placing her mental health in issue in contesting termination of parental rights. Appellant and amicus argue that the theory of M.M. is not applicable to this privilege, and, in any event, appellant's consent for the disclosure of information was explicitly for purposes of treatment only. We do not have to evaluate these claims. We note, however, that the SRS worker testified to information provided by the alcohol counselor without objection and never received notice that the federal privilege bound him. See 42 C.F.R. \\u00a7 2.12(d)(2)(iii), 2.32 (person who receives notice specified in regulation that information is privileged is bound by disclosure restrictions of regulations).\\nThe parties have assumed that this regulation restricts access to the testimony of the counselor, even if not based on the records. Although this assumption is logical to protect the confidentiality of the patient in the diagnosis and treatment process, we note that the statute relates only to records, 42 U.S.C. \\u00a7 290dd-2(a), and the regulations appear to be inconsistent in their coverage, see 42 C.ER. \\u00a7 2.3(a) (\\\"these regulations impose restrictions upon the disclosure and use of alcohol and drug abuse patient records\\\").\\nWe have found one decision that appears to support the family court's interpretation of \\u00a7 2.63(a), In re Romance M., 622 A.2d 1047, 1052 (Conn. Ct. App. 1993), a termination of parental rights proceeding. This decision is explicitly based on the rationale that the regulation authorizes any disclosure '\\\"necessary to protect against . . . child abuse and neglect.' \\\" Id. This quotation of the regulation omits words that are critical to its meaning, undermining the court's interpretation. There is no other rationale in the decision, and we decline to follow it.\\nThe exact language of \\u00a7 2.12(c)(6) is as follows:\\nReports of suspected child abuse and neglect. The restrictions on disclosure and use in these regulations do not apply to the reporting under State law of incidents of suspected child abuse and neglect to the appropriate State or local authorities. However, the restrictions continue to apply to the original alcohol or drug abuse patient records maintained by the program including their disclosure and use for civil or criminal proceedings which may arise out of the report of suspected child abuse and neglect.\\n42 C.F.R. \\u00a7 2.12(c)(6).\"}"
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+"{\"id\": \"8543783\", \"name\": \"SOPHRONIA CHAMBERLIN v. CHARLES B. LESLIE\", \"name_abbreviation\": \"Chamberlin v. Leslie\", \"decision_date\": \"1892\", \"docket_number\": \"\", \"first_page\": \"62\", \"last_page\": \"66\", \"citations\": \"65 Vt. 62\", \"volume\": \"65\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T19:19:18.875933+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SOPHRONIA CHAMBERLIN v. CHARLES B. LESLIE.\", \"head_matter\": \"SOPHRONIA CHAMBERLIN v. CHARLES B. LESLIE.\\nGeneral Term,\\n1892.\\nMotion by the defendant for a verdict frerperly granted.\\nThe action being for the recovery of the amount of a draft, Held, that there was no evidence tending to show that the defendant ever received the draft or its proceeds, and that the court properly directed a verdict for the defendant.\\nAssumpsit. Pleas, general issue and statute of limitations. Trial by jury at the December term, 1891, Caledonia county, Start, J., presiding. At the close of the evidence the court directed a verdict for the defendant. Exceptions by the plaintiff. The opinion states the case.\\nT. J. Deaviit and J. P. Lamson for the plaintiff.\\nSmith & Sloane and Alexander Dunnett for the defendant.\\nThe court properly directed a verdict if the evidence did not fairly tend to support the plaintiff\\u2019s claim. A mere scintilla of proof is not enough. Birney v. Martin, 3 Vt. 236; Maxwell, Admr., v. Briggs, 17 Vt. 176; Dean v. Dearis Estate, 43 Vt. 337; Latremouille, Admr., v. Ben-nington & Rutland R. R. Co., 63 Vt. 336; Driggs v. Burton, 44 Vt. 124; Denny v. Williams, 5 Allen 1.\", \"word_count\": \"1327\", \"char_count\": \"7574\", \"text\": \"The opinion of the court was delivered by\\nROSS, Ch. J.\\nThis is an action of assumpsit, in which the plaintiff seeks to recover of the defendant two hundred forty-nine and sixty hundredths dollars and interest, being a draft for that amount by W. W. Herrick, Paymaster U. S. A. on Assistant Treasurer of New York, payable to the plaintiff or order, \\u00e1nd dated New York, June 14, 1865.\\nThe draft was given to pay the plaintiff the bounty and back pay due her husband, who died in the service. At the close of the plaintiff's testimony the defendant moved the court to direct the i'ury to return a verdict in his favor, which the court did, against the exception of the plaintiff. This was error if there was any evidence tending to show that the defendant received the- money on this draft. The defendant was called as-a witness by the plaintiff, and testified plainly that he never saw or had the draft or money on it in any way. The plaintiff also testified that she never knew that she applied for her husband's bounty and back pay, and was told by the defendant that she could not obtain them, and that she never had the .money on the draft. It was conceded she employed the defendant to procure a pension for-her, which he did. It appeared from the evidence that application was made for the pension and for the bounty and back pay, contemporaneously, in the plaintiff's name, without any name being inserted in the papers as her attorney ; that the defendant and his late partner Rogers prepared and attended to the proper execution of the papers, and sent them to the department. It appeared that on Jun\\u00e9 14, 1865, the certificate of allowance of the bounty and back pay by the second auditor and second comptroller, with a receipt to Maj. W. W. Herrick, paymaster, was received. They were all in printed forms on one sheet of paper. The name of the paymaster was written in in a different handwriting from the signature, or the date and amount. The certificate of the amount due the deceased husband by the second auditor sent to the second comptroller refers to \\\"vouchers herewith transmitted\\\" ; and attached to the certificate of' the two, as presented in tbe county court,- were the application, proof of marriage, and proof of identity of the plaintiff as the widow of the deceased' soldier. These appear to have been one bundle of papers constantly kept together. Thejr have the post-office address of the plaintiff in two places, .and did.not have the post-office address of any other person. Whether, therefore, these papers, including the receipt, were received from the second comptroller or from the paymaster, when returned to the latter they informed him of the post-office address of the plaintiff. ' The plaintiff signed the receipt and the defendant witnessed her signature, and sent the papers to the paymaster. The plaintiff admitted that she was told that all communications from the department would come addressed to her, and she supposed they did, but that she never received the draft from the paymaster nor the money thereon. The defendant denies that he ever received any communications from the department or paymaster on plaintiff's business. The plaintiff at times denies that the endorsement of her name on the draft was made by her, and at other times admits that it looks like her signature. She places her denial upon the ground that she. never received the money on it. Her testimony shows that the National Bank of Newbury cashed the check June 26, 1865. She testifies, and produces some supporting testimony, that she was out of the State from April or May until after July 4 of that year. She also testifies that no papers on this business were sent to her during that time. She admits that at one time she received from the department a long envelope containing a check or draft which she got cashed without showing it to the defendant, but claims it was a pension check. But her testimony shows that her pension check of that date came from the St. Johnsbury pension agency through Theron Howard, who acted as her attorney to draw it, and who sent it, endorsed by him, to Leslie & Rogers, who endorsed it to the plaintiff. The paymaster's draft was not endorsed by Leslie, nor by Leslie & Rogers, as would ordinarily be the case if they drew the money on it. This is substantially what was shown on the trial; and the question is, was there any evidence tending to show that the defendant or Leslie & Rogers received the paymaster's draft, or the money on it? It is not contended that there was any direct testimony tending to show that he or they did. But it is contended that, inasmuch as the defendant witnessed the plaintiff's signature to the receipt for the bounty and back pay, and sent it with a letter to the paymaster, it may be presumed, from the ordinary course of business, that the draft was returned to him, when the plaintiff testifies she did not receive it, and was out of the State at the time. But we do not think that any such presumption arises, when the plaintiff's testimony shows that the papers sent the paymaster with the receipt bore her post-office address, and did not contain the name of anyone as her attorney, nor was the claim assigned to any one ; and when she calls the defendant to the stand, and he testifies that he did not receive the draft nor the money upon it, no presumption arises that the paymaster would send the draft to the defendant even if, in the letter accompanying the receipt, he gave his post-office address, which is not shown. The. defendant was not entitled to the.draft, and so far as the papers, which were sent with the receipt to the paymaster, show, was a stranger to it. Both the plaintiff and defendant testify positively that neither received it. We are not shut up to the conclusion that one of them must have received it. It was in the possession of the bank,- but how is not shown. Some other one might have passed it to the bank as well as the defendant. . It came through the mail, and might have been stolen. But it is mor\\u00e9 probable that the draft which th\\u00e9 pl\\u00e1intiff testifies that she received from the department and obtained the money'6n, without showing it to the defendant, was', the draft in controv\\u00e9rsy, and that after the lapse of tw\\u00e9rity-five years she has forgotten about it. But however this is, we do not discover any testimony which tended to show that' the defendant received the draft or the money on it.\\nJudgment affirmed.\"}"
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+"{\"id\": \"8543937\", \"name\": \"Kate Mobus v. Town of Waitsfield\", \"name_abbreviation\": \"Mobus v. Town of Waitsfield\", \"decision_date\": \"1902-12-27\", \"docket_number\": \"\", \"first_page\": \"122\", \"last_page\": \"132\", \"citations\": \"75 Vt. 122\", \"volume\": \"75\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T17:13:31.115550+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Rowell, C. J., Tyler, Munson, Start, Watson, Stafford and Haselton, JJ.\", \"parties\": \"Kate Mobus v. Town of Waitsfield.\", \"head_matter\": \"Kate Mobus v. Town of Waitsfield.\\nMay Term, 1902.\\nPresent: Rowell, C. J., Tyler, Munson, Start, Watson, Stafford and Haselton, JJ.\\nOpinion filed December 27, 1902.\\nInjury on highway \\u2014 Traveler\\u2014Proximate cause \\u2014 Pleading.\\nTo entitle one to an action under V. S. 3490 for injuries received through, the insufficiency of a highway bridge which it was the duty of the defendant town to keep in repair, he must have been a traveller upon the bridge at the time of the accident, in the exercise of due care, and the insufficiency of the bridge must have been the proximate cause of his injury.\\nIt cannot be said as matter of law that one who goes upon a highway bridge to assist another who, with his team, has been precipitated by the falling of the bridge to the waterway beneath, and is injured while so engaged, is not a traveller on such bridge at the time of such injury.\\nIf such person, while so assisting, is struck by the struggling horses and injured, the insufficiency of the bridge is the proximate cause of his injury.\\nThe allegation in the declaration that the plaintiff was on the bridge and its fragments assisting her husband, while he was in the situation described, when she was injured, is a sufficient allegation that there was a bridge and that she was then a traveller upon it.\\nIn an action under V. S. 3490, an allegation that the damage occurred \\u201cby reason\\u201d of the insufficiency of the bridge precludes the idea of negligence on the part of the plaintiff, and is sufficient.\\nCase for injuries received through the insufficiency of a highway bridge. The defendant demurred to the declaration at the March Term, 1902, Washington County, Start, J., presiding. Demurrer overruled, pro forma, and declaration adjudged sufficient. The defendant excepted.\\nFrank Plumley and John W. Gregory for the defendant.\\nThe plaintiff must be free from contributory negligence, and this must be established as an affirmative fact. Hyde v. Jamaica, 27 Vt. 443; Barber v. Essex, 27 Vt. 67; Walker v. WestfieM, 39 Vt. 246; Briggs v. Guilford, 8 Vt. 264; Carter v. Railroad Co., 72 Vt. 190; Kilpatrick v. Railway Co., 72 Vt. 236.\\nIt being an affirmative fact which the plaintiff must establish, it follows that it must in some particular form be alleged in her declaration. Strong v. Downey, 62 Vt. 246; Railroad Co. v. Hiatt, 17 Ind. 102; I Thomp. Neg. s. 370; Kent v. Lincoln, 32 Vt. 591; Brainard v. Van Dyke, 71 Vt. 359.\\nThe plaintiff must have been a traveler upon the bridge at the time of the injury, and the declaration must so allege. Baxter v. Turnpike Co., 22 Vt. 114; Elyde v. Jarnica, supra; Ford v. Braintree, 64 Vt. 144; Orcutt v. Bridge Co., 53 Me. 500; Steinson v. Gardner, 42 Me. 248; Harwood v. Patham, 132 Mass. 426; Blodgett v. Boston, 8 Allen 237; Britton v. Cummingham, 107 Mass. 347; Stickney v. Salem, 3 Allen 374; Richards v. En\\u00f1eld, 13 Gray 344; Hardy v. Keene, 57 N. H. 370.\\nOne cannot recover for injuries received while knowingly without the traveled part of a road. Harwood v. Oakham, 152 Mlass. 421; nor can one recover who places himself in a dangerous position in the highway. Kuhn v. Walker Tump., 97 Mich. 306.\\nUnder the circumstances and conditions set forth in the declaration, the alleged insufficiency of the bridge was not the proximate cause of the plaintiff\\u2019s injury. Railroad Co. v. Hiatt, 17 Ind. 102; Stickney v. Maidstone, 30 Vt. 738; Trow v. Railroad Co., 24 Vt. 487; Railway Co. v. Ives, 1x4 U. S. 408.\\nDillingham, Huse & Howland and Zed S. Stanton for the plaintiff.\\nThe declaration is in common form in like causes and sets forth with sufficient particularity that the plaintiff was injured \\u201cby reason of\\u201d the insufficiency of the bridge. The addition of the adverb solely would have neither enlarged nor more distinctly defined the causes of her injuries.\\nIt is not necessary to allege in express terms that the plaintiff was not guilty of contributory negligence. 5 Ency. P1.& Pr. 1; Coal Co. v. Chambliss, 97 Ala. 171; Railway Co. v. Bradford, 86 Ala. 574; Magee v. Railroad Co., 78 Cal. 431; Raib'oad v. Evans, 87 Ga. 673; Lester v. Pittsford, 7 Vt. 158; Heard\\u2019s Stephen on PL 350; Johnson v. Railroad Co., 5 Duer 21; Pierce on Railroads, 322.\\nThe insufficiency of the bridge and its resultant effect was the proximate cause of the plaintiff\\u2019s injury. Stickney v. Maidstone, 30 Vt. 738; Company v. Langendorf, 44 Ohio St. 316; Steel Co. v. Mamey, 88 Ind. 482.\", \"word_count\": \"3640\", \"char_count\": \"20388\", \"text\": \"Tyler, J.\\nThe declaration alleges, in substance, that while the plaintiff's husband and son were passing over a highway bridge in defendant town, upon a loaded cart drawn by two- horses, by reason of the insufficiency and want of repair of the bridge \\u2014 'Which it was the defendant's duty to maintain \\u2014it broke, and the horses, the loaded cart and the plaintiff's husband and son were precipitated to and among the broken fragments of the bridge to the water-way beneath the bridge; and that her husband was there fastened beneath the fragments of the bridge, the horses, cart and load, and unable to extricate himself; that he was greatly injured, and was in danger of further injury; that while he was so situated the plaintiff went to his assistance; and that while she was upon the bridge and its fragments, extricating her husband, she was kicked and injured by the horses, as they floundered in the water-way and upon her husband, and that she was also injured by the falling fragments of the bridge and cart.\\nThe defendant demurred to the declaration, and assigned several causes of demurrer which will be considered. The Court below, pro'forma, overruled the demurrer, and held the declaration sufficient, to which the defendant excepted.\\nThe plaintiff's right to recover rests upon no common law liability on the part of the town, for towns are created for governmental purposes, and private actions do not lie against them, at common law, for neglect of duty, though an individual suffers damages by reason of such neglect. If the plaintiff is entitled to recover, it is by reason o.f the liability imposed upon the defendant by V. S. 3490, which must be strictly construed. Its provisions are the limits of the defendant's liability. The plaintiff must have been a traveler upon the bridge when she received her injury, and the insufficiency of the bridge must have been the proximate cause of the accident, no want of ordinary care on the part of the plaintiff contributing thereto. This is the doctrine of Baxter v. Winooski Turnp. Co., 22 Vt. 114, 52 Am. Rep. 84, and of many subsequent cases.\\nWas the plaintiff a traveler?\\nThe language of the statute is: \\\"If damage occurs to a person or his property by reason of the insufficiency or want of repair of any bridge or culvert which the town is liable to keep in repair, the person sustaining damage may recover the same in an action on the case; .\\\" The necessary implication is that highways are for the purpose of travel and that the right of the public is the right of transition over them from place to place. This is the construction given the statute in Baxter v. Winooski Turnp. Co., supra, and in Sykes v. Pawlet, 43 Vt. 446, 5 Am. Rep. 595. In the statutes of other States this is so expressed.\\nThe injury must be to the person or property of a traveler. Stickney v. Maidstone, 30 Vt. 738. This does not mean that a person must be in actual motion at the time of the occurrence of the accident. As illustrated by Doe, C. J., in Varney v. Manchester, 58 N. H. 430, 40 Am. Rep. 592, a man might be on his way for a physician, but meeting him, and while stopping and conversing with him receive an injury through the insufficiency of a highway; the town might be liable to him as a traveller.\\nBritton v. Cummington, 107 Mass. 347, was where a carriage occupied by several persons and drawn by two horses was passing along- a highway, but was stopped by the driver to enable him, to' pick berries by the wayside, when one of the horses threw his checkrein over a blinder of the other horse's bridle, and when the driver attempted to unhitch it, one horse and then the other backed and the carriage was suddenly thrown down an embankment; held, that the question whether the plaintiff had ceased to be a traveler at the time of the accident was for the jury.\\nThere are numerous decisions in the books upon the question whether, in the circumstances of given cases, persons Avere travelers or not; but they all come to this: If the purpose for which a person is upon a highway is for transit from one place to another, he is a traveler, and not otherwise. In Massachusetts, under a statute similar to. ours, it has been repeatedly held that where a person is using a highway simply for the purpose of play, and receives a personal injury by reason of a defect therein, he cannot maintain an action to recover damages. Accordingly it was held in Tighe v. Lowell, 119 Mass. 472, that, where a child went upon a highway merely to play and there received an injury by means of a defect therein, there could be no recovery as the child was not a traveler. And in Lyons v. Brookline, 119 Mass. 491, a child was permitted to go upon the highway to'walk, but sat down upon a sidewalk where other children were playing, and was injured by the falling of \\u00e1 stone not properly secured; it was held that she was not a traveler.\\nIn McCarty v. Portland, 67 Me. 167, 24 Am. Rep. 23, the plaintiff was injured by the insufficiency of a highway while racing his horse upon it; held, that he was not a traveler within the meaning of this statute; and in Hardy v. Keene, 52 N. H. 370, that the terms \\\"travel,\\\" \\\"traveler\\\" and \\\"traveling\\\" have no technical meaning; that the whole matter is within the exclusive province of the jury under such instructions of the Court as the circumstances of the case require.\\nBliss, Admr. v. South Hadley, 145 Mass. 91, 13 N. E. 352, was where a child about two years old, in charge of an older child, ran across the street and fell into a gutter at the side of the street, the older child meanwhile watching other boys at play; held, that it was competent for the jury to find that the children were travelers on the highway. See Gulline v. Lowell, 144 Mass. 491, 11 N. E. 723.\\nIn Hunt v. Salem, 121 Mass. 294, a boy, on his way home, crossed the street to look at toys in a shop window, and stood looking at them four or five minutes, and was injured by catching his foot in a grating as he turned away to resume his walk; held, that he could recover.\\nIn Graham v. Boston, 156 Mass. 75, 30 N. E. 170, four minors were going home, playing tag as they went. They stopped, and then one went ahead of the rest and came in contact with a live wire, and received injuries, and when the others went to his assistance they were injured; held, that all could recover.\\nDevens, J., stated the rule in Harwood v. Oakhan, 152 Mass. 421: \\\"We have assumed that the word 'traveller/ which is found in the statute, is not there used in any narrow or restricted sense, and that the highway is to be kept safe and con venient for all persons having occasion to pass over while engaged in any of the pursuits or duties of life.\\\"\\nIn the present case the plaintiff went upon the bridge for a legitimate purpose, and, though she stopped to assist her husband, it cannot be held as a matter of law that she was not a traveler upon the bridge.\\nBut the defendant contends that the plaintiff was not a traveler upon the bridge, for the reason that it was broken down at the time of the injury to' herself, and had ceased to constitute a part of the highway, so that the case falls within another line of decisions where damages are denied for injuries received outside the limits of the highway.\\nIn Hyde v. Jamaica, 27 Vt. 443, the plaintiff's intestate was drowned in attempting to drive through a fordway in a river, which had not been adopted by the town, though .the bridge had been swept away; held, that there could be no recovery, the accident having happened outside of the highway limits.\\nA traveler upon a highway, who stops and ties his horse outside of the highway limits, using due care, cannot, if the horse gets loose and runs upon the highway, and suffers an injury from a defect therein, maintain an action against the town for such injury. Richards v. Enfield, 13 Gray, 344; Commonwealth v. Wilmington, 105 Mass. 599.\\nA town is not liable for personal injuries sustained by a traveler on a highway in falling from a bridge thereon, if, being acquainted with the bridge, he knowingly passes outside a rail which marked the limits of the way prepared for travel, to assist his servant who has there fallen into the stream. Harwood v. Oakham, supra. The last case is like Sykes v. Pawlet, where a person having voluntarily and for his own convenience deviated from the highway which was in good condition, met with an accident causing damage to him by backing his horse over a bank outside of the highway, but which extended up to the traveled track so as to make the highway itself insufficient and dangerous outside of the traveled track; it was held that the town was not liable for damages. Drew v. Sutton, 55 Vt. 586.\\nThe defendant also relies upon Kelley v. Boston, a recent case reported in 62 N. E. R. 259. There the plaintiff saw her child, who was about four years old, in the water of a sewer, where he had fallen through an open catch-basin which it was the duty of the city to keep covered. The plaintiff descended into the basin and rescued the child, but in so doing contracted a cold which resulted in rheumatic fever. The Court said: \\\"Laudable as was her motive, she ceased to be a traveler, and put herself in another relation to the defendant, in reference to which the law imposes no liability upon cities and towns.\\\" The Court also held that the plaintiff voluntarily gave up her position as a traveler when she abandoned the use of the street for travel, and passed from the surface of it, which alone was fitted and intended for travel and descended into the catch-basin. In this case the catch-basin clearly was not a part of the street, though situated within it.\\nThe declaration, in the case at bar, does not in terms allege that the plaintiff was a traveler upon the bridge, but it does allege that she went to her husband's assistance while he was in the situation described in the declaration, and that while she was on the bridge and its fragments, extricating him, she was injured. These are sufficient allegations that there was a bridge, whatever its condition, at the place of the accident, and that the plaintiff was a traveler upon it. Lynds v. Plymouth, 73 Vt. 216.\\nDoes this case come within the statute, or was the plaintiff's injury the result of a new cause intervening after the accident to her husband had occurred ?\\nThe defendant contends that the kicks of the horses and the falling fragments of the bridge after the accident had happened, were the direct, and that the insufficiency of the bridge was the remote cause.\\nIn Stickney v. Maidstone, supra, the bridge broke and let the hind legs of the traveler's horse through it so that the horse could not extricate himself. The plaintiff sent his wife, who was with him, to a house near by for assistance, and a man went to the bridge and aided the plaintiff in getting the horse out of the hole, but in so- doing the plaintiff was struck by the struggling horse and injured. It was contended by the defendant that the insufficiency of the bridge was only the remote cause of the plaintiff's injury and that the struggles of the horse were the immediate cause; also that the plaintiff was under no legal obligation to- attempt to' save the horse, and that having volunteered the attempt he should take the risk of any injury resulting therefrom. Pinpoint, J., said in delivering the opinion of the Court: \\\"This argument would have equal force if the plaintiff himself had been thrown through the bridge, and left in the same position, without injury in the first instance, but in freeing himself from the dilemma, had broken his arm, or his leg; yet in such case the defendant would hardly claim that, inasmuch as he was under no legal obligation to get out, and might remain there, his attempt to extricate himself was voluntary, and therefore he must take the risk of all reasonable, judicious and prudent efforts for that purpose.\\n\\\"We think that the rule claimed by the defendant is quite too narrow to- be sustained upon sound principle or authority. It was clearly the duty of the plaintiff, both morally and legally, to use all reasonable and proper means to save the horse. It wjas his duty to the town so to do, and if he had neglected to make the effort, the town would have had reason to complain. But whatever may have been his duty under the circumstances, he clearly had the right to malee all such proper and judicious efforts as were required to immediately relieve himself and his propert}*- from the position into which he had been thrown by reason of the defect in the bridge, and while doing so. he must be regarded as acting under the direct and immediate force of the first cause, which made such efforts necessary, and until that end is accomplished, the town must be responsible for such injuries as ensue.\\\"\\nIn discussing the question of proximate cause, the court said: \\\"The extent to which the first and proximate cause shall be said to operate, so as to procure direct and immediate results, must depend upon the peculiar circumstances of each particular case. It would be extremely difficult to lay down any rule defining the precise line that divides the proximate from the remote cause, which would operate justly in all cases. But we think it clearly safe to say, that, in a case like the present, the first cause does not cease fi> be the direct and proximate cause, until the party shall have released himself or his property from the imminent and immediate peril directly occasioned by such cause.\\\"\\nIf, in that case, the plaintiff's wife, instead of going for assistance, had remained and assisted her husband in extricating the horse, and had herself been injured, clearly she would have had the same right to recover damages that her husband had. If she could have recovered, the plaintiff in this case can recover. The insufficiency of the bridge was the direct and operating cause of the disaster, including the injury to the plaintiff wife. If a traveler were thrown from a bridge by reason of its insufficiency and injured by striking upon rocks below, it could not be said that the rocks, and not the insufficiency of the bridge, were the proximate cause of the injury.\\nIt is not that a new duty from the defendant to the plaintiff arose when the plaintiff went to her husband's rescue. She went upon the bridge after it had fallen, in the exercise of a right and in the performance of a duty to her husband, and was as much a traveler upon it as she would have been had she been attempting to cross it on her way for a doctor or for other assistance for her husband. But her injury was an incident to the disaster to her husband, of which the insufficiency of the bridge was the direct operating cause.\\nA large part of the defendant's brief and argument are directed to the subject of negligence, and to the fact that the declaration contains no allegation that the plaintiff was free from contributory negligence.\\nIt is the rule in this State, that in actions to recover damages occasioned by the defendant's negligence, the burden is upon the plaintiff to show that such negligence was the sole, operating cause of the injury \\u2014 that no want of due care on the part of the plaintiff helped to' produce it. This is clearly stated in Bovee v. Danville, 53 Vt. 183. But it is not necessary that this should be alleged in the declaration. It is enough if the declaration states that the insufficiency of the bridge was the sole cause of the accident. Where it alleges that the damage occurred \\\"by reason\\\" of such insufficiency it complies with V. S. 3490, and the idea of the plaintiff's negligence is precluded. Upon the facts alleged, in the situation of danger in which the plaintiff saw her husband, it cannot be held as matter of law that the plaintiff was not in the exercise of the degree of care that a careful and prudent person would exercise in like circumstances.\\nDemurrer overruled and declaration held sufficient.\\nRowell, C. J., and Watson, J., dissent.\"}"
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+"{\"id\": \"8544076\", \"name\": \"HERBERT J. WILLARD, ADMINISTRATOR OF ANDREW J. WILLARD, v. C. C. PINARD ET UX.\", \"name_abbreviation\": \"Willard v. Pinard\", \"decision_date\": \"1892\", \"docket_number\": \"\", \"first_page\": \"160\", \"last_page\": \"168\", \"citations\": \"65 Vt. 160\", \"volume\": \"65\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T19:19:18.875933+00:00\", \"provenance\": \"CAP\", \"judges\": \"Taft,- J., dissenting.\", \"parties\": \"HERBERT J. WILLARD, ADMINISTRATOR OF ANDREW J. WILLARD, v. C. C. PINARD ET UX.\", \"head_matter\": \"HERBERT J. WILLARD, ADMINISTRATOR OF ANDREW J. WILLARD, v. C. C. PINARD ET UX.\\nGeneral Term,\\n1892.\\nNote imports consideration. Tact that payee educated and payor illiterate does not alter rule. Finding of master not warranted. Interest m hook account.\\n1. The fact that one of two persons who have business dealings cannot read and write, being otherwise of ordinary memory and judgment, while the other is a lawyer, who promises to be fair and keep accurate accounts of their transactions, does not establish a trust relation between the two, so as to cast upon the latter the burden of proving a consideration for a promissory note given him by the former in the course of such dealings.\\n2. In a hearing before a special master, the weight to be given such a note as evidence is entirely for the master, and his finding as to the consideration is conclusive.\\n3. The intestate and defendant had dealings commencing in 1863, in the course of which the intestate advanced the defendant certain sums of money, which were settled for in 1872 by the giving of the defendant\\u2019s promissory notes. The master found that these notes included $200 of usury, and reported that the only evidence on which he based this finding was the testimony of two witnesses, to the effect that previous to 1872 the intestate had told them that the defendant was paying him ten per cent, the fact that banks at that time usually took eight per cent, and that \\u201cthe kind of transactions between these parties would indicate some consideration other than the mere legal rate, and less than the ordinary rate.\\u201d Held, that this evidence did not warrant the finding of the master that usury was included in the notes, although it might tend to show that usury was paid.\\n4. The general rule that in book account interest is chargeable only on yearly balances may be varied by special agreement.\\nPetition to foreclose a mortgage. Heard at the December term, Caledonia county, 1891, upon a master\\u2019s report and exceptions of both parties thereto. Start, chancellor,' overruled the exceptions of both parties, and decreed for the orator according to the report. Both parties appeal. The opinion states the case.\\nAlexander Dunnett and Charles A. Willard for the orator.\\nA payment of compound interest is not usurious. Culver v. Bigelow, 43 Vt. 249; Bur chard v. Knapp, 31 Vt. 679; Flannery v. Flannery, 58 Vt. 576; Catlin .v. Marsh, 16 Vt. 44.\\nThe finding of the master that the notes of 1872 included $200 usury is not warranted by the evidence. Harvey v. National Life Ins. Co., 60 Vt. 209; 'Jackson v. Jackson, 51 Vt. 253 ; Ricker v. Clark, 54 Vt. 289 ; Gleason v. Childs, 52 Vt. 421; 2 Best Ev., pp. 635, 460; 3 Starkie Ev., 1,235 1 Adnir. of Hammond v. Smith, 17 Vt. 231 ; Bank of United States v. Corcoran, 2 Pet.-121; Richmond v. Aiken, 25 Vt. 324; Bach v. Cohn, 3 La. Ann. 103.\\nBates & May for the defendant.\\nThe relation of the parties was one of trust and confidence. Wade v. Pulsfer, 54 Vt. 45 ; Barman v. Brooks, 9 Pick. 232; Chamberlain v. Esty, 55 Vt. 378.\\nThe burden was therefore rtpon the orator to show a consideration for the notes of 1872. Bailey\\u2019s Onus Probandi, p. 316 ; Alexander v. Rodriguez, 12 Wall. 323 ; 2 White & Tudor Lead. Cas. Eq., pp. 12, 13.\", \"word_count\": \"2725\", \"char_count\": \"15552\", \"text\": \"The opinion of the court was delivered by\\nROSS, Ch. J.\\nThis is a proceeding to foreclose a mortgage. The orator's intestate in 1863 bargained a lot of land in the village of St. Johnsbury to the defendant, C. C. Pinard, and agreed to furnish him money to enable him to build a house thereon. May 23,1872, the intestate conveyed the lot and house, and took back a duly executed mortgage to secure the payment of the defendant's promissory notes amounting to $2,500. June 22, 1885, these notes and the mortgage were given up, and a bottom mortgage taken to the Passumpsic Savings Bank to secure the' payment of the defendant's note for $1,000, and a second mortgage was given to the intestate to secure the payment to him of the defendant's promissory note for $1,540. This suit is to foreclose the last named mortgage. The defendants filed a cross bill, claiming that usury had entered into the debt secured, and that payments had been made and not applied, so that the debt secured by the mortgage in suit had been overpaid, and praying that the estate account for such overpayment on the defendant's note and mortgage to the savings bank. The cross bill was duly answered. The issues thus formed were referred to a master, who heard the parties and made his report. From the decree made upon the master's report both parties appealed to this court. Both parties took exceptions to the master's first and supplemental reports. The defendant's contention that the cross bill is in the nature of a bill of discovery is not sustained by the cross bill. That sets forth various claims of usury and of payments not credited, but prays for no discovery in regard to the same.\\nI. The defendants, while admitting that the notes given in 1872 and in 1885 ordinarily import consideration, contend that the relation of the intestate to the defendants was of trust and confidence, of such a character that the burden rested on the orator to establish the consideration of the notes, and that the notes -per se did not import consideration. To establish this relation they rely upon the facts found; that the defendant and his wife were unable to read or write, much more than to write their names. It is not found that they were not possessed of ordinary faculties of mind, and ordinary memory and judgment in regard to property and its value. It is also found that the intestate was a business man and a lawyer ; that he professed friendship for the defendants, agreed to treat them fairly, and to keep accurate accounts of their transactions. These agreements are no more than the law always implies in dealings between the ordinary debtor and creditor. It is not shown or claimed that the intestate ever was the trustee of the defendants in regard to any of their transactions. So far as is found the parties sustained to each other the ordinary relation existing between an educated, honest business man, and an ordinarily bright and capable man possessed of memory and judgment, but uneducated in knowledge of books and of the art of reading and writing except to a limited extent. The facts reported fail to bring the case within the principles governing the decisions cited for the defendants. The master therefore properly considered the promissory notes given by the defendants as importing full consideration for the amount specified therein. The weight tobe given to the notes themselves, and whether the other evidence and circumstances sustained or overbore the evidence furnished by the notes, was addressed to the master, and unless he has received and considered improper testimony, the facts found by him can not be revised by this court. Considerable of the argument for .the defendant was proper to be addressed to the master, but was of a character which this court cannot consider. It was proper for the master to consider that the parties had dealings, outside their dealings strictly applicable to the mortgage indebtedness, which might have entered into the notes of May 23, 1872, or June 22, 1885. The intestate's inventories of those years, made as of April first, would not necessarily show all the indebtedness which formed the consideration of the notes. It is found that the intestate had other notes against the defendant. He also endorsed the defendant's notes to the bank, and he was frequently making personal loans to him. All this is shown by the intestate's books and other testimony. The intestate's account with the defendant embraced other matters than the mortgage transaction. The transactions were of long standing. The intestate was not here to explain them. His death closed the mouth of the other party. These considerations were all addressed to the master. It has not come to our attention that the master considered any improper evidence against the defendants, and had evidence on which to base all his findings against the defendants. It is urged that some of the intestate's charges for interest for money advanced, from the time of the advancement instead of from the close of the year, or the balancing of the accounts, are improper. On book accounts, when no other understanding or agreement is shown, interest is allowed only on the }early balances. But this is the rule only when no other understanding or agreement is shown. It is not unlawful for parties to settle their accounts and charge interest on each item from the time it accrued. There was frequent balancing of the intestate's account when these charges were included. The balance found quite often was paid. Sometimes it was carried to the new account. All this clearly indicated that the parties had frequent lookings over, and determination of the balance due. It is to be presumed the parties went over the account item by item. The master finds that no more than lawful interest was ever charged by the intestate for these money advancements. We think the master was right in not allowing the defendants to be credited with these charges of interest on money advanced by the intestate from the time of advancement. It is somewhat indicative of the character of the account kept by the intestate, reaching back twenty years and more, that very few mistakes or inaccuracies have been found by the master, although it has been vigorously attacked at many points. He thinks there is a mistake in a charge of May 6, 1873, of $8.25, of March 26, 1885, of $5, of April 15, 1889, of $4. These are allowed. The master also allows the defendants as of December 5, 1882, $6.27, and as of October 18, 1889, $10.03. The last two were credited on the books of the intestate. We find no error in any of these allowances, nor in the refusal of the master to make further allowances to the defendants on transactions occurring during the life of the intestate. The defendants' exceptions to the master's report were properly overruled.\\nII. The orator excepted to the master's allowance of $200 usury as entering into the notes of May 23, 1872, as unsupported by evidence. The master says he has set forth in his report all of the evidence tending to establish this allowance in favor of the defendants. These facts are that one witness testified that in 1866, and at several times of which he gives no date, he heard the intestate say he was getting ten per cent interest of the defendant. It is evident that the other times were prior to giving the mortgage in 1872, as they are cited as bearing upon that transaction. Another witness testified that the intestate told him the same in substance in 1869. He also finds that during a portion of the time cov ered by the dealings between the parties eight per cent was the ordinary rate charged by banks. He also says, \\\"then the kind of transactions between these parties would indicate some consideration other than the mere legal rate, and less than the ordinary rate of interest.\\\" This is all of the evidence which the master has specified on which he bases his finding that $200 of usury entered into the notes of May 23, 1872. It is true the intestate's book showed due from the defendant on April 1, $2,400. This is balanced, when the notes were given, by two items of cash amounting to $100, and by part of notes given for deed of house, $2,300. But the master does not speak of this entry as influencing him in this finding. It is to be observed that the qestion before the master was not whether the defendants, between 1863 and 1872, or after the date last named, -paid the intestate sums of money as usury eo nomine. Such sums would become barred at law, by the statute of limitations, in six years. While this statute does not apply, strictly speaking, to suits in equity, yet equity follows the law generally in regard to such payments. In ascertaining the sum due in equity the orator could well have replied that payments of usury of more than six years standing, if found by the master, should be disallowed. But no such payments were found established, either from the intestate's books or otherwise. Yet while the evidence of the two witnesses and the defendants' allegations in the croSs bill are to the effect that the defendant paid the intestate usury eo nomine, they do not tend to show that such usury was included in the notes of May 23, 1872. Nor does the fact that banks took eight per cent have any such tendency. None of this evidence related directly to the giving of the notes of May 23, 1872, or to the indebtedness which was their consideration. Such an inference can rest only upon a presumption. Then if it related to this indebtedness it was to the effect that usury was paid, not that it was included in the notes to be paid when the indebtedness was extinguished. That such is not legitimate testimony to establish that usury was included in the notes of May 23, 1872, is decided in Hammond Smith, 17 Vt. 231. That was ejectment upon a mortgage. The defence was that the notes were void for usury. Testimony was given that the defendant, while the debt was running, was heard to say to the intestate that he could not afford to pay him twelve per cent, as he had been paying. To which the intestate replied that money was worth twelve per cent, and if the defendant didn't wish to pay it he might return the money. The court said this testimony had no tendency to show a usurious agreement when the mortgage was given. No more has the testimony of these witnesses, which related to transactions long before the giving of the notes of May 23, 1872, if it related to the indebtedness which was then secured by mortgage, have any legitimate tendency to show that usury was included in the notes. At most it tended to show that usury had been paid on some of the indebtedness which went into those notes. If any presumption arose from that fact, it was that the defendant continued to pay usury on the other notes, not that usury was included in them. The fact that banks took a higher rate per cent of interest than was- lawful, some portion of the time, had no tendency to show that the intestate took it, much less that he included it in these notes. What there was in the kind of transactions between the parties which indicated some consideration other than legal rate of interest the master has not informed us. We observe nothing in these transactions which has a tendency to establish that usury was included in the notes. That the intestate purchased a livery stock, paid for its feed, and helped sell it again might indicate that the intestate would deserve and perhaps demand something for his services and trouble, but does not indicate that the demand took the form of ushry, nor that, if it took such form, it was included in the notes. It could not have entered into the notes, for the livery transactions .were subsequent to giving the notes. The master has left us in the dark in reference to what he discovered in the transactions which indicated that $200 of usury entered into these notes. We discover nothing in them having a tendency leading to such a result. We do not find anything in the evidence referred to by the master as all the evidence which influenced him in finding this fact, which had a legitimate tendency to establish it.\\nThe -pro forma decree is reversed; and cause remanded with a mandate to enter a decree for the orator in accordance with the views heretofore \\u2022expressed.\\nTaft,- J., dissenting.\"}"
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+"{\"id\": \"8544112\", \"name\": \"Alfred L. Hobart v. P. J.'s Auto Village, Inc.\", \"name_abbreviation\": \"Hobart v. P. J.'s Auto Village, Inc.\", \"decision_date\": \"1978-06-06\", \"docket_number\": \"No. 83-77\", \"first_page\": \"287\", \"last_page\": \"290\", \"citations\": \"136 Vt. 287\", \"volume\": \"136\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-11T02:48:19.198920+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Barney, C.J., Daley, Larrow, Billings and Hill, JJ.\", \"parties\": \"Alfred L. Hobart v. P. J.'s Auto Village, Inc.\", \"head_matter\": \"Alfred L. Hobart v. P. J.'s Auto Village, Inc.\\n[388 A.2d 419]\\nNo. 83-77\\nPresent: Barney, C.J., Daley, Larrow, Billings and Hill, JJ.\\nOpinion Filed June 6, 1978\\nAnthony B. Lamb of Paul, Frank & Collins, Inc., Burlington, for Plaintiff.\\nValsangiacomo, Heilmann & Detora, Barre, for Defendant.\", \"word_count\": \"607\", \"char_count\": \"3653\", \"text\": \"Daley, J.\\nThe plaintiff brought his vehicle to the defendant's place of business for certain repairs which the defendant undertook to perform. One night while the car was in a lot used by the defendant as a storage area for used cars and vehicles undergoing repair, some unknown person or persons jacked up the car and stole two wheels and tires. Damage occurred to the exhaust, suspension and brake systems when the car was lowered or fell to the ground unsupported by the missing wheels. The plaintiff brought suit claiming that his damages were proximately caused by the negligence of the defendant in failing to protect the vehicle from vandals. In a trial by court, the defendant was found liable. He now appeals claiming the judgment is not supported by the trial court's findings of fact and conclusions. We agree.\\nThe law applied by the court is the doctrine set forth in Zweeres v. Thibault, 112 Vt. 264, 269, 23 A.2d 529, 533 (1942). In the case of a bailment for hire the bailee is liable for injury to the property bailed that results from his failure to exercise due care and diligence in its preservation. The burden was upon the plaintiff to prove that the defendant did not exercise such care and was negligent.\\nIt is also the well established law that negligence to be actionable must be the proximate cause of the injury for which compensation is sought. Cameron v. Bissonette, 103 Vt. 93, 95,152 A. 87, 88 (1930).\\nThe trial court found (1) that some automobiles awaiting service were stored outdoors overnight adjacent to that portion of the building containing the service department, (2) that the storage area was not enclosed by a fence or other structure, (3) that while the storage area was illuminated, it was not illuminated as brightly as another portion of the premises where other automobiles were stored, (4) that the business premises were unguarded at night except for routine police patrols at management's request, (5) that an L-shaped storage canopy effectively screened the storage area from the most likely direction of public view, Williston Road, because the canopy was more brightly illuminated and the dealer had a policy of always filling the canopy at the close of business with a row of closely parked automobiles, and (6) at least one car dealer in the Burlington area maintains a fenced area for cars parked outside awaiting repairs.\\nApart from the isolated instance of fencing by one other dealer in the locality, the trial court did not address the question of what precautions a reasonable garagekeeper would have taken under circumstances where he had knowledge of occasional vandalism to automobiles stored on his premises overnight.\\nIn short, the plaintiff's evidence and the trial court's findings do not support its apparent conclusion, not specifically stated, that the defendant failed to exercise the care required of it and that such failure constituted negligence. Even if we were to assume that it did, there is no finding that such negligence was the proximate cause of the plaintiff's loss. Our reading of the record convinces us that the plaintiff's evidence would not support a finding of proximate cause even if one had been made.\\nUnder these circumstances since there is no basis for the .judgment as rendered, we will' enter judgment for the defendant. \\u2022\\nReversed; judgment for the defendant.\"}"
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+"{\"id\": \"8544159\", \"name\": \"STATE v. PETER G. DEWEY\", \"name_abbreviation\": \"State v. Dewey\", \"decision_date\": \"1892\", \"docket_number\": \"\", \"first_page\": \"196\", \"last_page\": \"200\", \"citations\": \"65 Vt. 196\", \"volume\": \"65\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T19:19:18.875933+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE v. PETER G. DEWEY.\", \"head_matter\": \"STATE v. PETER G. DEWEY.\\nGeneral Term,\\n1892.\\nCommon nuisance. Former acquittal of keeping the same liquor.\\nUpon trial for maintaining a common nuisance by keeping intoxicating liquor for sale in a place of public resort, evidence that the respondent has been previously acquitted of keeping the same liquor for sale at the same time is admissible.\\nInformation for maintaining a common nuisance under R. L. \\u00a7 3,836. Plea, not guilty. Trial by jury at the March term, 1892, Washington county, Thompson, J., presiding. Verdict guilty and sentence imposed. The respondent excepts. The facts appear in the opinion.'\\nJohn H. Senior for the respondent.\\nA judgment of a court of competent jurisdiction is conclusive between the parties upon the point decided. Clark & Jackson v. Bryam & Lent, 16 Md. 176; Ranoule v. Griffe, 3 Md. 54; Bowie v. Jones, 1 Gill 208; Groshon v. Thomas, 20 Md. 234; United States v. Lee, 4 Cranch Cir. Ct. 446; State v. Mikesell, 70 Iowa 178 ; Regina v. Erling-ton, 9 Cox C. Ca. 86.\\nIn this case the former acquittal of the respondent establishes the fact that he did not keep this liquor for sale, and was admissible on that point, although not a technical bar. Herman Est. and Res Jud., \\u00a7\\u00a7 106, 107 ; Sjencer et al. v. Dearth, 43 Vt. 105 ; Betts v. Starr, 5 Conn. 553 ; Sterks v. Woodward, i Nott & McCord, 330; Gardner v. Buck-bee, 3 Cow. 126; Lentz v. Wallace, 17 Pa. 415; Hof kins v. Zee, 6 Wheat. 113 ; Railroad Co. v. Griffith, 76 Va. 925; Demorestv. Dary, 32 N. Y. 290; White v. Coats-worth, 6 \\u00d1. Y. 143 ; 6 Wait\\u2019s Act. & Def., p. 784, \\u00a7 26.\\nThe doctrine of res judicata is the same in criminal as in civil matters, and the State is concluded by the judgment of its own court. Herman Est. and Res Jud., \\u00a7\\u00a7 414, 415, 416 ; 7 Crim. L. Mag. 713 and cases cited; Roxy. State, 50 Ark. 528; Triflett v. Com., 1 S. W. 84; Coffey v. United States, li\\u00f3 U. S. 436; United States v. Butler, 38 Fed. Rep. 498; Wharton\\u2019s Ev., \\u00a7 783 ; State v. Long, 63 Me. 290; Com. v. M\\u2019Eike, 3 Cush. 181; Com. v. Austin, 97 Mass. 595 ; Com. v. Evans, 101 Mass. 25 ; Com. v. Eel-ham, 131 Mass. 588; Brunnot v. State, 12 Tex. App. 532.\\nThe former judgment need not be pleaded by way of estoppel. Wharton\\u2019s Ev., \\u00a7 765; Clink v. Thurston, 47 Cal. 28; Whittaker v. Jackson, 2 Ex. 925 ; Embruy v. Conner, 3 Comst. 523 ; Lawrence v. Hunt, 10 Wend. 85 ; Wright v. Butler, 6 Wend. 284; Greenl. Ev., \\u00a7 533 and note; Whart. Cr. Ev., \\u00a7 602a; Kreelerv. Ritter, 62 N. Y. 374; Adams v. Burns, 17 Mass. 367 ; Miller v. White, 50 N. Y. 144.\\nZed S. Stanton, State\\u2019s Attorney, for the State.\\nAn acquittal of keeping intoxicating liquor for sale does not bar a prosecution for maintaining a common nuisance by keeping the same liquor. State v. Wheeler, 62 Vt. 439; State v. Jangraw, 61 Vt. 39; Com. v. McCauley, 105 Mass. 69; State v. Lincoln, 50 Vt. 644; Com. v. Carf enter, 100 Mass. 204; State v. Innero, 53 Me.|53\\u00d3; Bell v. State, 2 Cr. L. Mag. 664 and note to sameState v. Jesse, 3 Dev. and Bat. 103.\", \"word_count\": \"1278\", \"char_count\": \"7137\", \"text\": \"TYLER, J.\\nThis was an information for keeping and maintaining a common nuisance under Section 3,836, R. L., which is as follows : \\\"Every saloon, restaurant, grocery, cellar, shop, billiard room, bar room, and every.drinking place or room used as a place of resort, where intoxicating liquor is unlawfully sold, furnished or giyen away, or kept for selling, furnishing, or giving away unlawfully, and every place or room used or resorted to for gambling, shall be held to be a common nuisance, kept in violation of law.\\\"\\nIt was conceded at the trial that the place mentioned in the information was a place of public resort of which the respondent was the proprietor and keeper, and the State's evidence tended to show that intoxicating liquor was kept by the respondent at the time and place charged, with the intent to sell, furnish, or give away the same in violation of law, so as to render the place a common nuisance under the section mentioned.\\nThe respondent's counsel offered to prove that the respondent had been tried and acquitted on the charge of keeping the identical liquor with intent to sell, etc., and claimed that the fact of keeping was res judicata.\\nThe State conceded the facts to be as stated in the offer, but claimed that the offences were not the same in law, but separate and distinct, and that an acquittal or conviction of one was not a bar to a prosecution for the other.\\nThe respondent's counsel does not claim that a conviction or acquittal upon an information for keeping or selling intoxicating liquor is a bar to a prosecution for keeping or maintaining a nuisance, but that a judgment of another court upon the question whether this identical liquor upon this identical occasion was kept for sale was competent evidence, and was either conclusive or tended to show that it was not so kept as alleged in this information.\\nThe State's attorney relies upon State v. Lincoln, 50 Vt. 644, State v. Fangraw, 61 Vt. 39, and State v. Wheeler, 62 Vt. 439. In the first of these cases the complaint was for keeping a room used as a place of public resort where intoxicating liquor was unlawfully kept. The respondent pleaded in bar that she had been prosecuted in the same court for owning, keeping, and possessing intoxicating liquor with intent to sell, etc., and had been convicted thereof for selling a half pint of whiskey to one John Root, and that the crime charged in the complaint and. the crime of which he had been convicted were one an'd the same act, namely, the sale' of the half pint of whiskey to Root. It was held that the two crimes were different in kind and degree, and created by distinct and independent statutes; that evidence that would have justified a conviction under one complaint might not justify a conviction under the other; that a plea of a form\\u00e9r conviction or acquittal must be for the same act and crime, and that the offence charged in both cases must be the same in fact and in law. The demurrer to the plea was sustained.\\nThe other cases were decided upon the same ground. In each of them a plea of a former acquittal or a former conviction of a different statutory offence was interposed, and was held insufficient.\\nIn this case the record of a former acquittal of the charge of the same keeping as alleged in the information was offered in evidence as bearing upon one material fact that must be established in each case to obtain a conviction. The evidence was admissible upon the principle that will be found to run through nearly all the American cases, that the judgment of a court of competent jurisdiction directly upon a particular point is, as between the parties, conclusive in relation to such point, though the purpose and subject matter of the two suits be different; hence a judgment may not only be evidence, but conclusive evidence in relation to such point, and still be no bar, strictly and technically speaking, to a second action. See cases cited in respondent's brief; 2 Stark. Ev., 183-4; Spencer v. Dearth, 43 Vt. 102; Lindsey v. Danville, 46 Vt. 144; Gayer v. Parker, 8 Am. St. R. 227.\\nExceptions sustained, sentence vacated, judgment reversed and cause remanded.\"}"
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+"{\"id\": \"8544391\", \"name\": \"Silas H. Hodges and Edward F. Hodges v. Caleb Hall\", \"name_abbreviation\": \"Hodges v. Hall\", \"decision_date\": \"1857-02\", \"docket_number\": \"\", \"first_page\": \"209\", \"last_page\": \"212\", \"citations\": \"29 Vt. 209\", \"volume\": \"29\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T22:10:58.528923+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Silas H. Hodges and Edward F. Hodges v. Caleb Hall.\", \"head_matter\": \"Silas H. Hodges and Edward F. Hodges v. Caleb Hall.\\nStatute of frauds.\\nThe defendant requested the plaintiffs to attend to certain suits in which the defendant\\u2019s son was interested, saying that if they would do the business for his son, he (the defendant) would pay for it. The plaintiffs attended to the suits, and made their charges therefor directly to the defendant, and it did not appear that the defendant\\u2019s son ever employed or promised to pay the plaintiffs. Held\\u00a1 that the services of the plaintiffs were rendered upon the credit or responsibility of the defendant, and that his promise to pay for them was an original promise and not within the statute of frauds.\\n\\u25a0 Book account. The plaintiffs\\u2019 account was for their services, &e., as attorneys. The disputed items were charges for services and expenses in suits in which Caleb B. Hall, a son of the defendant, was a party, in reference to which the auditor reported the following facts:\\nIn- January, 1842, the defendant told one of the plaintiffs that Caleb B. Hall wished to procure a discharge as a bankrupt, and that he, the defendant, wanted the plaintiffs to take hold of the business for the said Caleb B. Hall, and do such professional business as might be required by the said Caleb B. in suits in which he was interested, referring to suits arising from his then recent failure in business as a merchant; and on this occasion, the defendant said that if the plaintiffs would do the business for the said Caleb B. Hall, he, the defendant, would pay for it* The services and expenses were charged by the plaintiffs to the-account of the defendant. During the progress of the suits in which the said Caleb B. Hall was interested, the defendant occasionally talked with the plaintiffs concerning the same. On the 12th of June, 184.7, Silas H. Hodges, one of the plaintiffs, sent a letter of that date to Caleb B. Hall, calling upon him for a settlement of the claims of the plaintiffs against him, and in January, 1849, the plaintiffs presented to the said Caleb B. an account embracing the same services and expenses above referred to, but at the same time claimed that the defendant was liable for them. There was no undertaking on the part of the defendant to the plaintiffs to become accountable for their professional services and expenses in any particular suit in which Caleb B. Hall was interested as aforesaid, and no particular suit was mentioned by the defendant or plaintiffs in this connection, in any conversation held between the defendant and the plaintiffs, or either of them; and there was no other undertaking on the part of the defendant to the plaintiffs in reference to the said suits in which Caleb B. Hall was a party or interested, except that above mentioned.\\nThese charges were allowed both by the auditor and by the county court, at the Mareh Term, 1856, \\u2014 Pierpoint, J., presiding, \\u2014 and to their allowance the defendant excepted.\\nR. R. Thrall, for the defendant.\\nThe undertaking of the defendant was collateral and within the statute of frauds. Caleb B. Hall was and is still- liable for these charges, and he received the entire benefit of the plaintiffs\\u2019 services; Smith Y.Ide, 3 Yt. 290; Skinner fyB. v. Oonant, 2 Yt. 455; Aldrich v. Jewell, 12 Vt. 125; Newell v. Ingraham115 Yt. 422, 425.\\nS. H. Hodges, for the plaintiffs.\", \"word_count\": \"1182\", \"char_count\": \"6826\", \"text\": \"The opinion of the court was delivered by\\nIsham, J.\\nThe objection to the plaintiffs' recovery in this ease is confined to that portion of the plaintiffs' account which consists of services as attorneys in the business of one Caleb B. Hall. The only question in the case is, whether the promise of the defendant to pay for those services is void as being within the statute of frauds. The auditor finds that, before any services had been rendered by the plaintiffs, the defendant applied to one of them, and requested him to take charge of some professional business in which Caleb B. Hall was interested and, said that he would pay for it. The services and expenses were rendered and incurred as charged, and the charges were originally made, to the account of the defendant. The auditor reports no employment of the plaintiffs by Caleb B. Hall, nor any promise from him that they should be paid for their services; nor does he find a conditional promise by the defendant, that he would pay their account if Caleb B. Hall did not. If such had been the finding of the auditor, the authorities read at the hearing of the case clearly show, that the defendant's promise would be collateral and within the statute of frauds. The whole question is resolved into the simple inquiry, on whose credit or responsibility were the services rendered. If they were rendered upon the credit of Caleb B. Hall, or if he was liable for that account, the defendant's promise is collateral and void; but if the services were rendered on the credit of the defendant alone, his promise to pay for them is original and binding, though the services may have been rendered for the benefit of another. The question is mainly one of fact, and ordinarily the circumstance that the defendant alone employed the plaintiffs, that their services were rendered in pursuance of that employment, and that the charges were made at the time to the defendant are sufficient proof that the account accrued on his credit and responsibility. But these considerations probably are not conclusive, as the question depends not altogether upon the words of the promise or the manner of charging, but upon the particular circumstances and general features of the transaction; Matson v. Wharam, 2 Term. 80; Elder v. Warfield, 7 Har. & J. 391; Chitty on Cont. 508. In determining the question on whose credit the services were rendered, the fact that the plaintiffs in 1847, and afterwards in 1849, called upon Caleb B. Hall for payment of this account, and claimed that he was liable upon it, is not unimportant. If the defendant's promise had been ambiguous and its language had been consistent with a collateral engagement, that circumstance might determine the result of the case. The case of Rains v. Storrey, 3 Car. & P. 181, seems to have turned on that testimony. See also Simpton v. Penton, 2 Cromp. & Mees. 430. In this case the defendant's promise to pay the plaintiffs for their services was made in clear and definite language, and absolute in its character. There is no ambiguity in the promise, or in the employment, or in the manner of charging; nor are there any circumstances stated in the case, upon which the plaintiffs can rely, to fasten any liability for the payment of this account on Caleb B. Hall; and, so far as it is to be regarded as a question of fact, the report of the auditor and the judgment of the county court on that report must be regarded as having determined the matter for the plaintiffs.\\nJudgment affirmed.\"}"
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+"{\"id\": \"8544686\", \"name\": \"State of Vermont v. Daniel Winters\", \"name_abbreviation\": \"State v. Winters\", \"decision_date\": \"1978-09-14\", \"docket_number\": \"No. 266-76\", \"first_page\": \"469\", \"last_page\": \"471\", \"citations\": \"136 Vt. 469\", \"volume\": \"136\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-11T02:48:19.198920+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Barney, C.J., Daley, Larrow, Billings and Hill, JJ.\", \"parties\": \"State of Vermont v. Daniel Winters\", \"head_matter\": \"State of Vermont v. Daniel Winters\\n[392 A.2d 429]\\nNo. 266-76\\nPresent: Barney, C.J., Daley, Larrow, Billings and Hill, JJ.\\nOpinion Filed September 14, 1978\\nDavid G. Miller, Franklin County State\\u2019s Attorney, and Edward D. Fitzpatrick, Deputy State\\u2019s Attorney, St. Albans, for Plaintiff.\\nJames L. Morse, Defender General, and Charles S. Martin, Appellate Defender, Montpelier, for Defendant.\", \"word_count\": \"832\", \"char_count\": \"4963\", \"text\": \"Barney, C.J.\\nThe defendant was prosecuted for escape. The statutes divide this general offense into several specifically described variations based on the nature of the custody, and carry differing penalties. The information brought against this defendant alleged a violation of 18 V.S.A. \\u00a7 1501(b) (8). That statute applies to an inmate in custody who escapes or attempts to escape when he has been permitted to leave a corrections facility of confinement to do work necessary or appropriate for the maintenance, operations or business of the facility or the department.\\nThis defendant was one of a group of inmates from the St. Albans Correctional Diagnostic Treatment Facility. The party was doing maintenance work at the state park on Burton's Island on Lake Champlain under the supervision of a corrections officer from the St. Albans facility. The defendant, together with another member of the work detail, took a motor boat without permission during the lunch break and left the island. After some pursuit they were apprehended on an island on the New York side by authorities from that state. The defendant was returned to Vermont through the extradition process.\\nThe events established by the evidence were not questioned. The defendant took the stand and claimed that he did not have any intention of escaping from custody, but was merely out for a boat ride, intending to return. The jury returned a verdict of guilty.\\nThe defendant raises two issues on this appeal, and we will deal with them in the order briefed. The first is based on the trial court's denial, at the close of the state's case, of the defendant's motion for judgment of acquittal.\\nThe defendant now seeks to bring that denial here on appeal. Since that motion was never renewed at the close of the evidence or within the appropriate time period after verdict as required by V.R.Cr.P. 29, the case of State v. Bressette, 136 Vt. 315, 388 A.2d 395 (1978) stands in his way. It states that where the claim of insufficiency of the evidence to support the charge is not presented to the lower court at the end of the trial by a motion under the rule for judgment of acquittal, the issue is not preserved for appellate review.\\nThe second issue began before trial by a motion by the defendant for a change of venue. The claim of prejudice was based on local newspaper reporting of the escape episode. A hearing was held and the motion denied on the grounds that there was not sufficient evidence presented to demonstrate the prejudice justifying a change of venue. The evidence took the form of an affidavit of counsel referring to two newspaper accounts, and attaching one of them as an exhibit. Both articles pre-dated the hearing by more than two months, and amounted only to factual accounts of the episode. The allegation of prejudice seems to rest upon the newspapers' use of the word \\\"escapees\\\" as amounting to insuperable inferences of guilt. With no more than this to support the motion, it is apparent that the lower court's ruling must be sustained.\\nThe trial court went on to say that if anything developed at jury selection indicating the existence of prejudice, defense counsel should feel free to renew his motion. The empanelling of the jury, which took place two weeks after the denial of the motion for a change of venue, resulted in a jury with which the defendant expressed satisfaction after an extended voir dire, and the motion was not renewed.\\nIn this Court the defendant now argues that the trial court's suggestion that the defendant might consider renewing his motion at voir dire if circumstances warranted really means that the trial court did not effectively rule on his motion prior to empanelling the jury. This, he says, violates the American Bar Association Standards Relating to Fair Trial and Free Press \\u00a7 3.2(d). This section states that a change of venue ruling should be made before the jury is empanelled. Its position is that to try to do it during and on the basis of the voir dire places an unnecessary and undesirable burden on the defendant.\\nNothing that occurred at this trial is in conflict with that standard, even assuming it amounts to a definition of reversible error. The defendant had full opportunity to present the issue of prejudice prior to empanelling. As for the second opportunity, it seems clear that it might well be prejudicial to foreclose the filing of a new motion if the voir dire disclosed the likelihood of prejudicial publicity affecting the jurors. The defendant's position on this issue is not well-founded.\\nJudgment affirmed.\"}"
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+"{\"id\": \"8544832\", \"name\": \"Silas B. Hazeltine vs. Seneca Page, trustee of Elijah Parker\", \"name_abbreviation\": \"Hazeltine v. Page\", \"decision_date\": \"1832-01\", \"docket_number\": \"\", \"first_page\": \"49\", \"last_page\": \"55\", \"citations\": \"4 Vt. 49\", \"volume\": \"4\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T19:26:16.828550+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Silas B. Hazeltine vs. Seneca Page, trustee of Elijah Parker.\", \"head_matter\": \"Silas B. Hazeltine vs. Seneca Page, trustee of Elijah Parker.\\nThis Court cannot reverse the decision of the county court in trustee actions, upon matters arising between the creditor and trustee, unless the facts are all placed upon'\\u00edhe rec\\u00f3r'd in the county court, by a bill of exceptions, or otherwise.\\nit makes no difference in this respect, whether the action comes up by appeal, or by exceptions to the decision of the county court.\\n'\\u00c9xceptions should be drawn and signed by the judges, stating, that they found the facts as stated in the disclosure, or found such to be the facts, stating them, and, upon such facts, decide in favor of such a party.\\nThe Supreme Court are no more judges of the weight of evidence in such actions than they are'upon any writ of error.\\nA trustee of an absconding debtor will not be protected by a previous judgement against him in that capacity, when said judgementis to be satisfied in specific property, and cannot be enforced till a future time, and the monies or credits in the trustee\\u2019s hands are due immediately.\\n'Neither will a trustee be protected by having promised'to p'dy'the amount of his iri-debtedness to the creditors of the absconded debtor, if such promise be void by the statute of frauds.\\nFranklin\\nJanuary, 1832.\\nThis case was a trustee process brought by Hazelline against Page, as the trustee of -Parker, who was alleged to -be an-absconded or concealed debtor. The suit -ivas commenced December 20th, 1828. It appeared from the disclosure of the trustee that in the fore part of October, 1827, he executed and delivered to Parker a promissory note for nine hundred dollars, payable in Eve years after date in horses, or other property, such as Pagg,j could best spare 5 that afterwards, on the 9th day of the same-month, Hazeltine caused process to be served on him as the trustee af Parker, and on the 10th day of the same month, David Read also commenced a trustee process against him as Parker\\u2019s trustee ; that these suits were both entered in court,and were pending at the time of said disclosure, and in both of which the trustee had, on the 13th day of December, 1828, filed disclosures stating that the promissory note before mentioned was due to Parker according to its tenor. The said Page further disclosed, that after the commencement of the two suits last mentioned, and before the commencement of the present action, he, at the solicitation of Parker,and relying on his promise to settle the first suits, made a settlement wkb Parker, and took up and paid the said note for nine hundred dollars, excepting a balance,for which Z^ng-e-gave-his note to Parker for one hundred pairs of coarse shoes, payable on demand, and another, note for. either, forty or seventy doE lars, (which sum he could not ascertain,)\\u2019 payable in Boots and' shoes on demand \\u2014that after said settlement, and the execution of these two notes, and before the commencement of the present action, he, Page, became answerable to pay to Elijah Barnes forty dollars, if the title to certain lands which Parker had-sold to Barnes, should fail; also to Read and Beardsley six or seven dollars ; to Augustus Burt the amount of his charges as attorney in the two suits above mentioned ; to Mr. Stowell about six dollars, and to Smalley and' Adams the amount of their fees as attornies in the said, two suits, if Be should have any funds after paying the other debts specified ; the amount, to be paid to Burt,.and to Smalley and Adams could not be then asserlained, as the two> suits were not terminated. All these sums the trustee stated he had agreed to pay at the request of Parker. Pgg-e further slated in his disclosure, that he had a further claim against Parker for his costs as trustee in the two first suits, and for money paid counsel in the- same, amounting to $14,50. If appeared that, the agreement to pay these several-sums was not reduced to writing, excepting the agreement to pay Barnes,as before mentioned. At the trial in the county court at September term, 1831, it appeared that judgements had been rendered against Pflge in the two suits before mentioned, according to his disclosure, in the one in which Mazeltine was plaintiff, for $5,32 damages and $5,32 costs, anti in the other for \\u202154,08 damages and $1S,15 costs. The cause was tried on 'the disclosure and other evidence, and a judgement was rendered in favor of the plaintiffs. page, the trustee, excepted, and the following bill of exceptions was allowed, on which the cause was brought before this Court for revision.\\n\\u201cIn addition to, and explanation of, the disclosure in this case, the proceedings and disclosures in the former suits against Page, as trustee of Parker, and mentioned in the disclosure in thilrsuir, were read in evidence. In order to show that the liability o\\u00ed the trustee to Barnes, set forth in the disclosure, had ceased, the plaintiff read in evidence the record of a mortgage discharged, executed by Barnes to Parker, which was the incumbrance against which the trustee had undertaken to indemnify Barnes, as mentioned in the disclosure. It was proved that sometime previous to the commencement of this suit, Parker employed Burt, as counsel, in the two suits of Hazelhne and Read against page, as trustee of Parker-, mentioned in the disclosure, telling Suit that Page would pay his-fees-; that within a.short time after, and pre-'Nious to this suit, Burt enquired of Page if be would be accountable, and he agreed to stand charged for Burl\\u2019s services in the said two suits. Whereupon t'he charges already made were transferred by Burt to the account of page, and all subsequent charges in said suits were made by Burt directly against ^age. It was further proved that Smalley and Adams were counsel for Parker in the same suits, and in this suit, but that their charges were made against Parker alone, and had never been transferred to the account of Page, nor had he ever undertaken in writing to be accountable forme same. Evidence was given as to the value of coarse shoes. Upon the disclosure and evidence, the court decided that the trustee was not entitled in this case to any deduction on account of the two former suits in favor of Hazeltine and Read, on the ground that the disclosure was too general and unsatisfactory as to the manner of satisfying the nine hundred dollar note, and as to the undertaking of Parker to satisfy the judgements against the trustee ; nor on account of his undertaking to Barnes, on the ground that the claim of Barnes was extinguished by the discharge of the mortgage aforesaid ; nor on account of his undertaking to Smalley and Adams, on the ground that said undertaking was void, at least, as against an attaching creditor., by the statute of frauds. And the court further found the value of the shoes to be one hundred and seventeen dollars, and the sum due on the trustee\\u2019s second note to Parker to be forty dollars, making in the whole one hunderd and fifty-seven dollars. The court further considered from the disclosure, that this sum was already due and payable. From this sum the court deducted and allowed to the trustee the payment to Read and Beardsley of six dollars, the payment to Stowell of six dollars, the amount of Augustus Burt\\u2019s account, found from the evidence to be fifty dollars ; making in all the sum of sixty-two dollars,leaving the trustee liable for ninety-five? dollars. Out of this sum the court allowed to the trustee for his-own time and travel, and attending court, seven-dollars and sixty cents. And for the fees and disbursements of his counsel in this suit twenty-two dollars fifteen cents; making together twenty nine-dollars and seventy-five cents : which sum being deducted from the aforesaid amount of his liability left the sum of sixty five dollars and twenty-five cents, which was adjudged to be in the hands of the trustee subject to the pl'atntiflTs execution. To all which t.he trustee excepts\\u00bb\\u201d\\nSmalley and Mams, for defendant.\\n1 The amount of the judgement in the two first suits against Page ought to have been deducted from the sum found in Page\\u2019s hands, in addition to the sum deducted by the county court. The plaintiffis not entitled to draw from Page\\u2019s hands any sum of money or other property, unless Parker could have drawn the same from Page at the time of the commencement of this action. A short examination of this case, as exhibited by the papers, will show that Parker was not entitled, either in law or equity, to draw any funds from Page\\u2019s: hands at the time of the commencement of this suit, until he had settled the two suits then pending against Page as his trustee.\\n2, This case has nothing to do with the statute of frauds. The Statute does not prohibit, restrain, or limit, or in any way qualify, the right which a creditor has to direct his debtor to pay to whomsoever the former sees fit. Nor are the obligations of the debtor-intended to be affected by the act.\\u2014 G***'**'vs. Philips, et al, 10 Johns, 412; Com. Contracts, 181, and the authority there cited. The engagement of Page to pay for the services of Mr. Burt and Smalley and Adams, Parker\\u2019s counsel, was nothing more than a mode of paying his own debt. \\u2014 Roberts on Frauds, 208 and seq. 224, 232. Unless this undertaking can be brought within the statute qf frauds, there was error in the decision of the county court. The fact that Smalley and A.dams did not charge to Page, is sufficiently explained by the displqsure. He was not to pay their charges unless the fiinds should hold out,\\n3. The decision of the county court, that the sum found in Page\\u2019s hands vyap now due and payable in cash, is clearly erroneous.\\nRead, for the plaintiff.-n-\\n1. It appears from the disclosure made by Page in the two suits referred to in his last disclosure, that there was $900 due from him to Parker at the commencement of said suits ; and further, that but about $70 was recover- edin said suits againstthe principal debtor. The statute (sec. 5) relating to absconded or concealed debtors, (see stat. 151,) is peremptory on this subject, and makes the trustee liable for the full amount of the debt, if he had sufficient funds or property in his hands at the time of the service of the process ; and if he shifts or varies the condition of the property, or pays up the principal debtor, relying upon his responsibility to meet the judgements that might be recovered against him-, it can in no way affect or vary the rights of the attaching creditor. Further, the burthen of proof is on the trustee as to the true state of the funds in his hands; and if he does not clearly state their condition or manner of disposal in his disclosure, as becomes his duty, all legal presumptions will be taken against him ; and how much Page, had paid towards the \\u2021900 note, or in what manner the same was settled, was matter of fact for the court below to determine.\\n2. Whether the claim in favor of Barnes should have been deducted or not, rested also upon matter of fact which the court below have decided, and which this court will not attempt to review. The same as to whether said notes were due and payable.\\n3. The decision of the court in not deducting the claim in favor of Smalley and Adams against Parker, was correct, as the undertaking on the part of Page furnished them with no legal claim against him to recover the same ; but, on the other hand, was void under the statute of frauds. \\u2014 See Stat. 115 ; Rob. on Frauds, 207 \\u2014 8 ; do. 222 \\u2014 3.\", \"word_count\": \"3037\", \"char_count\": \"17344\", \"text\": \"Hutchinson, C. J.,\\ndelivered - the opinion of the Court.\\u2014 There appears to be not much in controversy in the present case, except what depends upon the weight of evidence ; and we have no more to do with that, than we should have in any writ of error. And, in this respect, there is no diSerence, whether the action comes up by appeal, or by exceptions to the decision of the county court. We can hold appellate jurisdiction from the county court only to revise their decisions upon matters of law, arising from the facts, in some way placed upon the record. If the disclosure of the trustee is treated as true, let the judges certify, that they found the facts to be as stated in the disclosure. If there is other testimony, also, let them certify, in detail, what facts they find proved by the disclosure and other testimony. The disclosure itself may be so defective and incoherent, that no person can believe all the facts it contains. And, while we admit other testimony, either to contradictor support the disclosure, as ever has been done in this state, we must treat the disclosure rather as evidence, than as a record document. Still, if it appears consistent in and of itself, and stands uncontradicted by other test\\u00a1monyj it is treated ns containing the truth. Yet, as the other testimony is not always on paper, we know not whether the county court treated it as true or not, without their certificate upon the subject. In the present case, the exceptions allowed show what facts they found proved,and the decision they made upon those facts. And the defendant now urges that the facts thus found require a decision, that Page might retain out of the two notes, last given by him, sufficient to indemnify him against the two suits named in his disclosure ; also that he should be allowed the sum he agreed to pay to Smalley and Adams, being their debt against Parker, the principal debtor. If we treat the facts upon these points as the defendant conceives they must have been found, and even treat the disclosure as true upon these points,still we must bear in mind that the two last notes, which the county court valued at one hundred and fifty seven dollars, were not left in the hands of Page as a fund to pay the previous judgements : but it was made payable immediately ; and at most, Page only took the promise of Parker to indemnify him against those judgements. Now those judge-ments could not take effect against Page till 1832-3 \\u2014 and then they might be satisfied in horses, &tc. Of course, this promise could not be pleaded in offset, or set up in any way against the collection ofthe new noies. Nor would a court of equity interfere, even as against Parker, to stay the collection, on account of that executory promise. It would be necessary to show the inability of Parker to fulfil the promise. Nothing of this sort appears here. And does it follow, that an attaching creditor of Parker is to be restrained \\u2014 even if Parker would be ? So long as the right of Parker to the $157, is a legal right, is not that enough for a creditor ? \\u2014 Why is this different from the case of specific chattels belonging to Parker in the hands of Page \\u2014 not deposited there asa pledge against the promise of Parker \\u2014 but to be redelivered \\u2022when called for. A creditor goes and attaches that property ; \\u2022shall his execution be prevented on account of that promise ? As to the debt, of Smalley and Adams, and the application of the statute of frauds ; no debt of Page to Parker, or of Parker to .Smalley and Adams, is discharged by the verbal promise of Page to Smalley and Adams, unless the promise ipso facto operates to \\u2022discharge those debts. But the account of Smalley and Adams was continued against Parker : thus rebutting the presumption of its discharge as against Parker.\\u2014 Vide Livingston vs. Wilkinson, Sup. C. F. G. January T. 1828. No new consideration passed between Smalley and Adams and defendant. It is not like Williams vs. Leaper in Burrow. To make it similar, Smalley and Adams should have been about to attach the property of Parker in Page's hands \\u2014 'then Page's promise (with the assent of Parker, and perhaps without it) to pay their debt, in consideration of withdrawing their attachment. If not within the statute \\u2014 is the promise grounded on any sufficient consideration ? To make a consideration, was it not necessary that Page's promise should have been accepted in satisfaction of Parker's debt? \\u2014 Page's authority under Parker was to pay the debt to Smalley and Adams, and not to embarrass the property of Parker by making a collateral engagement short of extinguishing the debt as against Parser. The court made the proper distinction between this claim of Smalley and Adams, and that due to Mr. Burt. Burt had accepted Page as his debtor, and charged him, and discharged Parker. The county court allowed Page to retain that .amount.\\nSmalley & Adams, for the trustee;\\nRead, for the plaintiff.\\nThe defendant has urged one further objection ; that the court were not warranted in adjudging Page as trustee of the monies of Parker, when one note was merely for so many pairs of shoes. The exceptions show, that the court found, from the disclosure, that the note payable in shoes had become due and payable.. Hence they set a value upon the shoes, and considered that value to be money in his hands. Were it our province to-decide upon the evidence, we should consider it as well warranting the decision of the county court. The note for shoes was-payable on demand. The disclosure states his undertaking to pay divers money debts on account of it, to nearly its value, and says-the remainder is due. If, by its being due, might not be intended that it was payable, yet his undertaking to pay so many money debts, well warranted the presumption that the shoes had been demanded, and the note become payable in money..\\nThe judgement of the county court is affirmed..\"}"
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+"{\"id\": \"8544956\", \"name\": \"James Farnsworth vs. Jason C. Pierce\", \"name_abbreviation\": \"Farnsworth v. Pierce\", \"decision_date\": \"1835-01\", \"docket_number\": \"\", \"first_page\": \"83\", \"last_page\": \"86\", \"citations\": \"7 Vt. 83\", \"volume\": \"7\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T21:00:22.414199+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James Farnsworth vs. Jason C. Pierce.\", \"head_matter\": \"James Farnsworth vs. Jason C. Pierce.\\nFranklin,\\nJanuary, 1835.\\nThe court, upon the application of one party, and without the consent of the other, will, issue a dedimus potestatem to take testimony in a foreign jurisdiction.\\nThis was an action of assumpsit, in two counts, to which the defendant plead the general issue.\\nIt came here from the county court upon a bill of exceptions taken upon the trial before the jury, by the defendants, to the admission of depositions taken in Canada, by commissioners, under a dedimus potestatem, granted on application of the plaintiff, to which it did not appear that the defendant had ever given his assent. Other exceptions were taken, but on trial here were abandoned.\\nSmalley & Adams for defendant.\\n\\u2014 The county court could not, on the application of the plaintiff, legally issue a dedimus potestatem t0 tajie the testimony of witnesses in Canada, without the consent of the defendant. \\u2014 1 Stark. Ev. 276, 277. 1 Arch. Prac. 153, 154. Stevens vs. Crichton, 2 East. Rep. 256. Taylor vs. The Royal Exchange Insurance Company, 8 East. 329. Calliand vs. Vaughan, 1 B. and P. 209-10.\\nIn this case, such consent is wanting; therefore the depositions offered by the plaintiff were improperly admitted.\\nHunt and Beardsley contra.\\n\\u2014 The - first question .presented by the exceptions is, whether the court properly admitted the depositions of John Taylor and others.\\nIn the absence of any statute regulation on the subject, the plaintiff insists that the court, ex officio, have the power to prescribe forms and regulations in the procurement of testimony necessary in the proper administration of justice. Courts in England have in some instances exercised it, and for a long time it has been the common practice of our courts.\\nWithout the exercise of this power by our courts, there must be in many cases a total failure of justice for the want of testimony of witnesses, where attendance cou\\u00edd not, by any legal process, be compelled.\", \"word_count\": \"1290\", \"char_count\": \"7479\", \"text\": \"The opinion of the court was delivered by\\nMattocks, J.\\nThe only question which has been argued in this case is, whether the county court has power, on the application of one party, to issue a dedimus potestatem to take testimony in a foreign country, without the consent of the adverse party. The other exception taken at the trial is abandoned. As the case does not say whether the commission to take testimony was issued with or without consent, perhaps we might be justified in presuming consent. But as the main question is of some practical importance, and has not been directly-decided by this court, we do not presume consent, but decide the question submitted.\\nIn England, a party in a suit at law can obtain a commission by applying to the court of chancery, without the consent of his adversary. But in the courts of law, unless the opposite party consents, none are granted. \\u2014 1 Chit. 276, and note. The reason of this difference is not stated, but probably it is because all writs originally issued from the chancery, and common law courts have not, as yet, in this instance, presumed to. interfere. But as the expense of the commission, in chancery, is borne by the applicant, so at law, when consent is given, it is ordered in the same way; for otherwise, consent would never be obtained. This obliges the prevailing party to lose the expense of obtaining his necessary testimony, which the courts regret, but do not avoid, lest it drive the applicant into chancery, which would be far more expensive. They also endeavor to force the adverse party to consent, but, it seems, with little effect, in many cases. Some authors say, the court will put off the trial until the other party will consent. That may do where the defendant applies, but if the plaintiff desires the commission, to put off the trial to punish the defendant would be like reprieving a criminal, unless he would consent to be executed. But Starkie says, \\\" The court will put off the trial at the instance of the defendant, if the plaintiff will not consent; and if the defendant refuse, the court will not give him judgment, as in case of a non-suit.\\\" What will they do ? Not continue, not try, not non-suit! This must be what is meant by hanging up a case. Yet, though this practice of the English courts, of requiring consent, seems unnecessary, it may be tolerable there on that island, where foreign jurisdictions do not come to suitors' thresholds, and where the court of chancery is always open. But here, where we are separated on most sides from other jurisdictions by only a mathematical line, and witnesses are daily floating away by the tide of emigration, and our court of chancery is seldom open, to deny the right, or to embarrass it with useless and unreasonable conditions, would in some cases prevent justice, and in many make expensive delays. But it is said that letters rogatory may be issued, and the courts of other countries may deign to take the testimony for us. But why obtest foreign tribunals to do that for us that we can better do for ourselves, by appointing a competent individual.\\nIt has also been objected, as a reason against the power to issue the commission, that the witnesses would not be liable to indictment for perjury. This was intimated by the court in Calliand vs. Vaughan, 1 B. and P. 210; but it was on the ground that the commission would be illegal without consent. There is no intimation given, that if the commission was legal, the deponents would not be liable ; and if we hold that the commission legally issued for one purpose, it would follow that it was legal for all purposes.\\nAs to other objections to a conviction, they would be the same with consent as without. Nor would the legislature, if they passed an act be likely to do more than to expressly authorize the courts to issue commissions ; still leaving the other questions to be mooted before the courts here or abroad, where the indictment may be found. And it may be sufficient on this point to say, that it must be the understanding of the judges and chancellors of England that m the party offending may be punished somewhere, or the practice woujd not be continued there. To issue these commissions in any case, or to refuse them in all cases, here, is more than is or can be contended for. So that the question comes to this, may not our courts, which are entrusted with the general p.ower of administering justice, adopt the salutary usaage of the common law courts, dropping as.it were the proviso, which conflicts with the enacting clause. We do many things here directly, that in England are done by useless circuity, mostly indeed by legislative provisions. But we think it will not be overstepping the bounds of judicial modesty to make the correction in this point by our own inherent authority. It is believed that the practice in this state has been pretty general, if not universal, to issue these commissions, and that without consent being asked or required; and this, probably, is the reason why this power is given by the third section of the probate act to that court; it being supposed that the superior courts already had and exercised the power, but to a court of particular jurisdiction it was needful to confer it. Usage alone, this being rather a matter of practice, might be a sufficient ground for us to decide \\u00e1s we do, that the dedimus po-testatem was legally issued, although without consent; and therefore the testimony taken under it was properly admitted.\\nJudgment affirmed.\"}"
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+"{\"id\": \"8545180\", \"name\": \"The Travelers Insurance Company v. Jean Carol Blanchard and Sheyanne Baker and Shawn Baker\", \"name_abbreviation\": \"Travelers Insurance v. Blanchard\", \"decision_date\": \"1981-06-02\", \"docket_number\": \"No. 270-80\", \"first_page\": \"559\", \"last_page\": \"562\", \"citations\": \"139 Vt. 559\", \"volume\": \"139\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T17:18:33.393854+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Barney, C.J., Larrow, Billings, Hill and Underwood, JJ.\", \"parties\": \"The Travelers Insurance Company v. Jean Carol Blanchard and Sheyanne Baker and Shawn Baker\", \"head_matter\": \"The Travelers Insurance Company v. Jean Carol Blanchard and Sheyanne Baker and Shawn Baker\\n[433 A.2d 296]\\nNo. 270-80\\nPresent: Barney, C.J., Larrow, Billings, Hill and Underwood, JJ.\\nOpinion Filed June 2, 1981\\nFink and Birmingham, P.C., Ludlow, for Appellant.\\nEugene Rakoiv and Peter C. Montague (On the Brief), of Biederman, Rakow & Donnellan, P.C., Rutland, for Appellees.\", \"word_count\": \"914\", \"char_count\": \"5673\", \"text\": \"Larrow, J.\\nThis is an action of interpleader under V.R.C.P. 22, brought by the Travelers Insurance Company (Travelers) to determine entitlement to a death benefit payable upon the life of one Oren E. Baker. Despite the clearly equitable nature of the relief sought, it was heard below by the presiding judge and the assistant judges of the Rutland Superior Court. Fortunately, no claim of error is predicated upon this, and their decision was a unanimous one. Pockette v. LaDuke, 139 Vt. 625, 432 A.2d 1191 (1981).\\nThe defendants, Sheyanne and Shawn Baker, are minor children of the decedent. Defendant-appellant Jean C. Blanchard was the named beneficiary on the group policy in question at the time of Baker's death. The pertinent facts were stipulated below, as was the payment into court of the $8,000 policy proceeds, less costs and attorney fees, and the release of Travelers. The trial court found the minor children entitled to the net proceeds, and defendant Blanchard has appealed. A certified question, also agreed to, raises the issue of entitlement under the facts hereinafter summarized.\\nA temporary order was entered in a divorce action brought by his then wife against Baker, pursuant to stipulation, on July 14, 1977. Among other matters (i.e., custody, visitation, possession of property and support) Baker was ordered to maintain existing health, life, and dental insurance for the minor children. By final judgment dated May 16, 1979, and again pursuant to stipulation, it was ordered:\\n5. Plaintiff and Defendant shall each maintain their present life insurance policies and name their present minor children as beneficiaries thereof during their minority.\\nSheyanne and Shawn Baker are such minor children. The policy in issue here is one of two such policies, a group insurance policy with Baker's employer. The order contained a property division, gave child custody to the mother, and \\\"in consideration of the foregoing\\\" relieved Baker of further child support. Jean C. Blanchard was a \\\"close friend\\\" of Baker; they had formulated plans to marry. On October 4, 1977, after the temporary stipulation and order, but before the final stipulation and order, Baker executed a form changing the beneficiary on the policy in question to Blanchard, and designating her as \\\"friend.\\\" He died August 16, 1979. She claims the proceeds on the basis of this change of beneficiary, and asserts equitable interests in such proceeds. The children claim by virtue of the divorce orders and their equitable interests.\\nIt is apparent at the outset that Blanchard's claim must rest upon the change of beneficiary alone. She asserts in her brief that she and Baker had lived together some two years before his death, that she had contributed to their household expenses, and that they were to be married two days after the date on which he was killed by his divorced wife. Whatever \\\"equities\\\" could be said to have arisen from this continuing relationship with a man still legally married, they are not for consideration in this case, because they were neither found nor put into evidence below. The parties have stipulated that no transcript is required, and the case was tried on an agreed statement containing none of these asserted facts. Having so stipulated, defendant Blanchard is bound by her stipulation, and cannot assert factual claims whose inclusion, or admission into evidence, she could have otherwise insisted upon. C. & T. Discount Corp. v. Sawyer, 123 Vt. 238, 185 A.2d 462 (1962). We can here indulge only necessary inferences from the agreed facts, Manley Bros. v. Bush, 106 Vt. 57, 169 A. 782 (1934), and the claims here asserted are far from that description. From all that appears, the defendant Blanchard was only a volunteer, not entitled to prevail over equities in the minor children supported by recognized consideration. Travelers Insurance Co. v. Gebo, 106 Vt. 155, 170 A. 917 (1934). Her extensive argument that the insurer has a contractual obligation to make payment to her and to no one else must fail in light of the clear holding of Gebo. Whatever relevance it might have to the situation of an insurer seeking protection where it has paid the named beneficiary without knowledge of opposing claims, that is not the case at bar. The insurer knew of all claims, and properly sought its appropriate equitable remedy.\\nNor can there be any claim that there were no equities in the minor children, or that these equities were unsupported by consideration. In exchange for provisions in the judgment favorable to him, the decedent undertook to make them his beneficiaries. He had made such an undertaking in the previous stipulation, and violated it. The final judgment relieved him of further child support, certainly adequate consideration for his undertaking with respect to his insurance. The equities in favor of the minor children are not only dominant on the facts as stipulated; they would also certainly predominate over any unproven equities claimed to arise from the meretricious relationship between the decedent and the claimant Blanchard. The named beneficiary and unsuccessful claimant in Gebo was an innocent brother; the Gebo holding, for that reason, militates even more strongly against the claimant here. Affirmance is required.\\nJudgment affirmed.\"}"
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+"{\"id\": \"8545267\", \"name\": \"Nathaniel Pingry v. Joel G. Watkins. Same Case\", \"name_abbreviation\": \"Pingry v. Watkins\", \"decision_date\": \"1845-02\", \"docket_number\": \"\", \"first_page\": \"379\", \"last_page\": \"387\", \"citations\": \"17 Vt. 379\", \"volume\": \"17\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T21:39:26.019473+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Nathaniel Pingry v. Joel G. Watkins. [Same Case,\", \"head_matter\": \"Nathaniel Pingry v. Joel G. Watkins. [Same Case,\\n15 Vt. 479.]\\nQuestions once decided in a ease in the Supreme Court are not open for argument, when the .same case is again before the court at a subsequent term.\\nWhen there is no latent ambiguity in a deed, the intention of the parties must be ascertained from the instrument itself, and cannot be shown by parol evidence.\\nWhere, in an action of covenant for rent, brought against the assignee of the lessee, the plaintiff alleged that all the -estate, right, interest, &c'., of the lessee in the demised premises came to and vested, in the defendant, by assignment thereof, and that the defendant entered into possession of said premises after said assignment, and retained the possession thereof until the rent sued for became due, and the defendant pleaded that the estate, right, &c., of the lessee did not come to and vest in him, as alleged in the declaration, and that he was not possessed of and in the said demised prem ises in manner and form as the plaintiff had alleged, upon which plea issue was joined, it was held that the fact of the assignment was the only material part of the issue, and the only part which the plaintiff was required to ' prove, and that the defendant could not he allowed- to prove that he did not in fact take possession of said premises after the assignment.\\nWhere an assignment of dower and other records in the office of the probate \\u2022 court are referred to as part of the description of premises in a conveyance of real estate, they may be used as evidence in court, for the purpose of identifying the premises conveyed, notwithstanding they may never have been recorded in the office of the town clerk of the town in which the land lies.\\nThis was an action of covenant for the non-payment of rent.\\nThe plaintiff declared, that,-on the 13th day of February, 1833, he, with his then wife, Rebecca Pingry, executed to Charles W. Watkins, his heirs and assigns, for and during the natural life of the said Rebecca, a lease of certain premises in Chester, in the \\u2022county of Windsor, reserving an annual rent of $42,50, payable on the first day of April in each year during the said term ; that said Charles W. Watkins entered into possession of the premises; that on the 8th day of February, 1840, all the estate, right, interest, &c., of the said Charles W. Watkins in the said premises, then to come and unexpired, [by assignment thereof then and there made, legally .came to and vested in the defendant; that thereupon the defendant entered into possession of the said premises, and continued in possession thereof until the decease of the said Rebecca, who died on the 5th day of July, 1840; and that the defendant had not paid the said sum of $42,50, which became due, by virtue of said lease, on the first day of April, 1840.\\nThe defendant pleaded that all the estate, right, interest, &c., of the said Charles W. Watkins in the said premises, then to come and unexpired, did not come to and vest in the said defendant by assignment thereof, and that he was not possessed of and in the said demised premises in manner and form as the plaintiff had alleged; and upon this plea issue was joined. There was a second count in the declaration, which alleged the fact of the assignment, but not that the defendant took possession of the premises; and on that count issue was joined as to the fact of the assignment, only.\\nOn trial the plaintiff gave in evidence the lease declared upon, \\u2014 in which the demised premises were described, as being \\u201c all that cer- \\u2018 tain part of the real estate of Elias Watkins, seinor, late of Chester, \\u2018 deceased, that was set off to the said Rebecca, as widow of the \\u2018 deceased, as her thirds, lying and being in Chester aforesaid, to- \\u2018 gether with the buildings thereon, as set to her by a committee \\u2018 appointed for that purpose, \\u2014 the particular boundaries and descrip- \\u2018 tion thereof being set forth in the return of said committee, and \\u2018 the particular part of the buildings, as described thereon; refer- \\u2018 ence is had thereto.\\u201d\\nThe plaintiff then offered in evidence a copy, from the probate records, of the assignment of dower of the said Rebecca, as widow of the said Elias Watkins, senior, dated April 16,1814; also of the assignment of the remainder of the said Elias Watkins\\u2019 estate to his son, Elias Watkins the younger, by the probate court, dated Jan. 14, 1844; to both which the defendant objected, for the reason that they had not been recorded in the office of the town clerk of Chester ; but the objection was overruled by the court. The plaintiff also offered in evidence the division of the estate of Elias' Watkins the younger, who was the father of the- defendant and of the said Charles W. Watkins, among his six children; to the admission of which the defendant also objected; and the objection was overruled by the court.\\nThe plaintiff also offered in evidence a quitclaim deed, executed, on the 8th day of February, 1840, by the said Charles W. Watkins to the defendant, \\u2014 the descriptive part of which was in these words; \\u2014 \\u201c all the right, title, interest, property, estate and demand \\u2018 which I, the said Charles W. Watkins, have in and to certain \\u2018tracts, pieces, or parcels of land, lying and being in Chester afore- \\u2018 said, described as follows, to wit, \\u2014 all that certain piece of land, \\u2018 set to me as my share of the home farm of my late father, Elias \\u2018 Watkins, deceased, as the same is described by the doings of the \\u2018 committee on record in Chester land records, having reference to * the said records for the bounds thereof. Also, one other piece, set \\u2018 off by said committee of the reversion of the widow Rebecca Howe, \\u2018 late widow of Elias Watkins the elder, deceased, having reference \\u2018 to the records aforesaid for the particular bounds thereof. Also, \\u2018 all my right, title, or share, of the reversion of the thirds set off to \\u2018 the widow Sally Watkins of the estate of my said father, which I \\u2018 now have, or may hereafter have therein in common and undi- \\u2018 vided, or that may be hereafter set to my share on a division there- \\u2018 of, \\u2014 be the same more or less.\\u201d The plaintiff claimed that the premises secondly described in said deed were the same with the premises demised in said lease. To the admission of this deed in evidence the defendant objected; but the objection was overruled by the eourt.\\nThe plaintiff proved that the said Charles W., Watkins went into possesion of the said demised premises under the lease, and contiif-ued in possession thereof until he executed the said deed to the defendant. The plaintiff also proved that the house and buildings, mentioned in the assignment of dower to the said Rebecca, are on the land which was assigned to the said Charles W. Watkins in the said division of the estate of his father, Elias Watkins the younger. And it appeared, that, in the partition of the estate of Elias Watkins the younger, among his six children, the reversion of the said Rebecca\\u2019s said dower was divided into six parts, of which her right in the buildings was considered one part and was assigned to said- Charles. The plaintiff also gave evidence tending to prove that the land, so assigned to the said Rebecca, was known in the family and had acquired the name of the Reversion, and was so called in the partition and conveyances. It was conceded by the defendant that the widow Rebecca Watkins, afterwards widow Rebecca Howe, intermarried with the plaintiff prior to the date and execution of the lease from her and the plaintiff to Charles W. Watkins, and that she died on the fifth day of July, 1840.\\nThe defendant then offered to show that he did not take possession of the premises, and that Charles W. Watkins continued in possession thereof until after the decease of the said Rebecca; to the admission of which the plaintiff objected, \\u2014 and it was excluded by the \\u25a0 court.\\nThe defendant also offered in evidence the deposition of Charles W. Watkins, in which he testified that he only intended, by the quitclaim deed of Feb. 8, 1840, to convey to the defendant the re-versionary interest, which he, the said Charles, had in the premises demised by said lease, \\u2014 meaning, as he expressed it, his right of the property after the decease of the said Rebecca. To the admission of this deposition the plaintiff objected, and it was excluded by the court.\\nThe defendant requested the count to charge the jury, that, unless they found that the defendant took possession of the premises, he was entitled to a verdict on the first court, and that the deed from Charles W. Watkins to the defendant did not convey to the defendant the leasehold interest of said' Charles in the premises.\\nBut the court instructed the jury that the quitclaim deed c\\u00edid convey to the defendant the leasehold interest of Charles W. Watkins in the premises, and that the defendant was liable for the rent, which became due the first day of April, 1840, whether he in fact had the possession, or whether the said Charles continued to occupy there.\\nThe jury returned a verdict for the plaintiff. Exceptions by de* fendant.\\nB. Kellogg and N. Richardson for defendant.\\n1. The County Court erred in rejecting the testimony offered by the defendants, tending to show that he did not take possession of the premises; and also in refusing to instruct the jury, that, unless they found the fact that the defendant did take such possession, he was entitled to a verdict upon the first count in the plaintiff\\u2019s declaration. It was alleged in the first count of the declaration that the defendant entered upon and took possession of the premises, which were assigned to him, upon which allegation issue was joined by the pleadings. The testimony offered tended to prove the issue, and hence was admissible. If the parties formed an immaterial issue (which we do not admit,) it could not be corrected by excluding the testimony. Gould\\u2019s PL 506, Sect. 28. 1 Chitty\\u2019s PI. 631, 632.\\n2. We insist that the deposition of Charles W. Watkins was admissible, as tending to show the construction which the parties gave to the quitclaim deed from Charles W. Watkins to the defendant. If there is any ambiguity in the deed, it is a latent ambiguity, which may be explained by parol. 2 Phil. Ev. 664. Storer v. Freeman, 6 Mass. 425. 6 Pick. 63.\\nP. T. Washburn for plaintiff.\\nI. The assignment of dower to the widow Rebecca Watkins was referred to in the lease and made a part of that instrument, and was introduced, not in order to support the plaintiff\\u2019s title, but, as made by the parties a part of the description, to identify and limit the premises.\\nII. The assignment to Elias Watkins the younger and the record of the division of his estate among his heirs were correctly admitted in evidence, to prove the points in reference to which they were offered. In consequence of there being three descriptive clauses in the deed from Charles W. Watkins to the defendant, and of the inartificial manner in which they were drawn, it became necessary to introduce extraneous evidence, not to sustain the title, but to explain the latent ambiguity in their language, to identify the premises contained in each clause, and, by showing their situation, to enable the court to give the proper construction to the descriptive words. For these purposes these instruments were correctly admitted in evidence, without showing them to have been recorded in the town clerk\\u2019s office ; \\u2014 for\\n1. By the Rev. St. c. 44, \\u00a7 4, copies from the probate office are made \\u201clegal evidence in all courts of law and equity.\\u201d\\n2. The statute of 1804, (Tol. St. 166, \\u00a7 3,) cannot be construed as intended to exclude these instruments. In construing statutes we are to search' for the intent of the legislature ; Butler & Baker\\u2019s Case, 3 Co. 25. Rosce, J., in Fox v. Hatch, 14 Yt. 340 5 a qualified construction may be given to general words: 2 Cov. &. H. Dig. 1305, cites Lyn v. Wyn, Orl. Bridg. 147 ; and the letter may be enlarged or restrained, according to the true intent of the makers of the law. Whitney v. Whitney, 14 Mass. 92. In the preceding section of this very statute we find the required clue to the intention of the legislature. After providing that wills, devising real estate shall be recorded in the town clerk\\u2019s office, it enacts that \\u201c copies from such office shall be legal evidence of the title so devised, &c. When, therefore, the next section enacts that papers not so recorded shall not be \\u201c allowed in evidence,\\u201d it must be treated as a continuation of the preceding section, and as meaning that they shall not be allowed as evidence of the title.\\nBut the intention of the legislature may be ascertained by resorting to other statutes relating to the same subject. Commonwealth v. Martin, 17 Mass. 363. Thc general system of legislation upon the subject matter may be taken into view, to aid in the construction of any one statute relating to the same subject. Holbrook v. Hol-brook et al, 1 Pick. 254. An examination of the statutes of this State, in reference to the object and validity of town clerk\\u2019s records, Will show that object to be merely to give to third persons notice of the titles affecting real estate. The statute of 1797, (SI. St. 210, \\u00a7 3,) relative to the levy of executions upon real estate, provides that the return of the levy shall be recorded in the town clerk\\u2019s office, and that, being recorded, &c., it \\u201c shall make a good title \\u201d &c. The Revised Statutes (ch. 42, \\u00a7 17) use the same words. .The statutes, which provide for recording deeds, (SI. St. 167; Rev. St. c. 60, \\u00a7 6,) provide also that such deeds \\u201c shall be good and effectual in law to Zjoidsuch lands,\\u201d &c., only as against the grantor, if not recorded. By Rev. St. c. 51, \\u00a7 9, it is proyided that the return of the committee to set off dower, \\u201c being recorded in the town clerk\\u2019s office, the dower shall remain fixed and certain.\\u201d When the probate law was revised, in 1821, it was enacted that \\u201c all wills, assignments, &c., affecting the title to real estate, should be recorded in the town clerk\\u2019s office.\\u201d Slade\\u2019s St. 351, \\u00a7 86. This we consider a re-enactment of the statute of 1804, with the changes which the construction, perhaps, of courts, long practice, and analogous legislative enactments had sanctioned.\\nIII. The deposition of Charles W. Watkins was properly excluded by the court, as being an attempt to explain by the parol testimony of the grantor in a deed his intentions in executing it.\\nIV. As assignee of the lessee the defendant was liable to pay the whole rent becoming due for the year ending April 1, 1840, notwithstanding he became assignee in the middle of the term. Wood v. Partridge, 11 Mass. 493. 2 Bac. Abr. 70. 1 Saund. PI. & Ev. 391. Kimpton v. Walker, 9 Vt. 191. 6 Com. Dig. 212. Mc-Murphy v. Minot, 4 N. H. Rep. 251. Demarest v. Willard, 8 Cow. 206. Duppa v. Mayo, 1 Saund. R. 287. Salk. 65. Co. Lit. 150 a.\", \"word_count\": \"3126\", \"char_count\": \"17737\", \"text\": \"The opinion of the court was delivered by\\nBenNett, J.\\nThis ease was before the Supreme Court, upon a bill of exceptions, in 1843, and most of the questions saved by this bill of exceptions were then disposed of, and are not open to farther argument. The legal construction of the lease was then settled. See 15 Vt. 479.\\nIt is now claimed in argument, that there was error in the county court, in rejecting the deposition of Charlea W. W atkins, and that that was proper evidence to explain and give construction to the quitclaim deed from the deponent to the defendant. Bat there was no latent ambiguity, which calls for an explanation by parol ; and, in a case like the present, the intention of the parties must be derived from the instrument itself. It is a principle o\\u00ed universal application, that, if there is an ambiguity on the face of a written instrument, it cannot be explained by parol. It has also been said, that it should have been admitted as proof upon the issue joined upon the plea to the first count in the declaration. It is to be remarked, that the defendant, in that plea, avers that the demised premises did not come to and vest in the defendant by the assignment thereof, and that he was not possessed thereof, as alleged in the declaration. Issue is joined upon the plea. The fact of the assignment of the leased premises from Charles-W. Watkins to thi3 defendant is the only material part of the issue, ahd that which the plaintiff was only called upon to prove, to entitle himself to a verdict. Clearly, then, it was not error for the- court to exclude evidence on the part of the defendant relating solely to the possession. Had the possession been a material part of the issue, it would have been otherwise; and had the issue been wholly immaterial, by having been joined upon the fact of possession alone in the assignee, the defendant, on the trial of such issue, which the parties had seen fit to join, should probably have been entitled to any testimony, that was proper to disprove the issue.\\nWe think the objection to the admission of the probate records, setting out the widow's dower in the estate of Elias Watkins, for the want of their being recorded in the town clerk's office, cannot avail. The object of their admission was simply for a reference to the description there given, and to give locality to the lands specified in the quitclaim deed from Charles W. Watkins to the defend- . ant; and not for the purpose of making out title under the probate proceedings.\\nIt was held, when this case was before us in 1843, that the de fendant acquired the whole leasehold estate, and that the plaintiff was entitled to recover the whole rent demanded.\\nThis bill of exceptions presents no new questions, upon which the defendant can succeed in reversing the judgment of the County Court, and the judgment of-that court is affirmed.\"}"
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+"{\"id\": \"8545303\", \"name\": \"Anthony Cersosimo, Richard Wescott, Stanley Bills, and Donald E. Gould v. Town of Townshend\", \"name_abbreviation\": \"Cersosimo v. Town of Townshend\", \"decision_date\": \"1981-06-02\", \"docket_number\": \"No. 234-80\", \"first_page\": \"594\", \"last_page\": \"597\", \"citations\": \"139 Vt. 594\", \"volume\": \"139\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T17:18:33.393854+00:00\", \"provenance\": \"CAP\", \"judges\": \"Present: Barney, C.J., Larrow, Billings and Hill, JJ., and Daley, J. (Ret.), Specially Assigned\", \"parties\": \"Anthony Cersosimo, Richard Wescott, Stanley Bills, and Donald E. Gould v. Town of Townshend\", \"head_matter\": \"Anthony Cersosimo, Richard Wescott, Stanley Bills, and Donald E. Gould v. Town of Townshend\\n[431 A.2d 496]\\nNo. 234-80\\nPresent: Barney, C.J., Larrow, Billings and Hill, JJ., and Daley, J. (Ret.), Specially Assigned\\nOpinion Filed June 2, 1981\\nCrispe & Crispe, Brattleboro, for Plaintiffs.\\nT. Hans Russell, Townshend, for Defendant.\", \"word_count\": \"1028\", \"char_count\": \"6144\", \"text\": \"Billings. J.\\nThe plaintiffs-appellees petitioned the selectmen of the defendant-appellant Town of Townshend to lay out a public highway over certain private roads already constructed by the plaintiff Cersosimo in a real estate development known as Townshend Acres. The defendant town, acting through the selectmen, denied the petition. Pursuant to 19 V.S.A. \\u00a7 461 et seq. the plaintiffs sought relief in the Windham Superior Court. The trial court appointed three commissioners, 19 V.S.A. \\u00a7 462, to inquire into the convenience and necessity of the proposed highway. 19 V.S.A. \\u00a7 464. After a hearing, the commissioners filed their report, 19 V.S.A. \\u00a7 467, and by a two to one majority determined that the roads should be laid out as public highways. After a hearing, the superior court accepted the commissioners' report, 19 V.S.A. \\u00a7 470, issued findings of fact and conclusions of law, and ordered the roads to be laid out and the defendant to accept and maintain them. The town appeals from this judgment.\\nUnder Vermont law there are two methods of laying out public roads: statutory condemnation, and dedication and acceptance. Demers v. City of Montpelier, 120 Vt. 380, 141 A.2d 676 (1958); Town of Springfield v. Newton, 115 Vt. 39, 50 A.2d 605 (1947). The defendant argues that the method of statutory condemnation is not a permissible method for creating a public way over an already existing private road. The defendant contends that when a private road is already in existence the only method available is dedication and acceptance. This Court has never addressed this issue, although two cases have dealt with the statutory condemnation of roads that were laid out at least in part over existing private roads. Demers v. City of Montpelier, supra; Prince v. Town of Braintree, 64 Vt. 540, 26 A. 1095 (1892). There was no objection in either case to the method used, however, and the Court did not discuss whether or not the procedure used was proper.\\nAt least two other courts have addressed this issue. In In re Kress, 410 Pa. 565, 189 A.2d 848 (1963), the Pennsylvania Supreme Court concluded that statutory procedures analogous to those invoked here could not be used to force a town to accept an already existing private road. This decision was based in part on certain provisions of the Pennsylvania statutes suggesting that the procedures were available only when the petitioners requested the construction of a new road. Id. at 567, 189 A.2d at 849. There is nothing in the language of the Vermont statutes on condemnation, however, to indicate that the procedure may be used only when a new road is to be constructed. New Hampshire has a statutory scheme for the condemnation of highways similar to that of Vermont. N.H. Rev. Stat. Ann. \\u00a7 234:28 et seq. The New Hampshire Supreme Court has held that statutory condemnation is not limited to the creation of new roads, but may be used for converting existing private roads into public roads. Locke Development Corp. v. Town of Barnstead, 115 N.H. 642, 349 A.2d 598 (1975); Amoskeag Industries, Inc. v. City of Manchester, 93 N.H. 335, 41 A.2d 917 (1945).\\nThe defendant suggests that if statutory condemnation is available in this situation any developer may force a town to accept the burden of maintaining roads constructed by the developer on private lands. In view of the procedures that must be followed before a town can be forced to lay out a highway, this argument is without merit. At least five per cent of the freeholders in the town must petition the selectmen to lay out a highway. 19 V.S.A. \\u00a7 341(a). The commissioners appointed after a petition to the superior court must make a finding of convenience and necessity, 19 V.S.A. \\u00a7 464, and the superior court must concur in the commissioners' report. 19 V.S.A. \\u00a7 470. We hold that statutory condemnation is an appropriate procedure for laying out a public highway over an existing private road.\\nThe defendant also claims error in the trial court's finding that the public convenience and necessity dictate the taking over of the highway by the town. The defendant argues that the \\\"necessity\\\" required for laying out a public road is an absolute necessity, which can exist only if there is no existing access to the petitioner's property. Under 19 Y.S.A. \\u00a7 221(1), however, necessity is defined as \\\"a reasonable need which considers the greatest public good and the least inconvenience and expense to the condemning party and to the property owner.\\\" It does not mean an imperative, indispensable or absolute necessity but only that the taking be reasonably necessary to the accomplishment of the end in view under the particular circumstances. State Transportation Board v. May, 137 Vt. 320, 403 A.2d 267 (1979); Latchis v. State Highway Board, 120 Vt. 120, 134 A.2d 191 (1957). This is a question of fact which is to be determined exclusively by the trial court. Pillsbury v. Town of Wheelock, 130 Vt. 242, 290 A.2d 42 (1972); Bolles v. City of Montpelier, 93 Vt. 513, 108 A. 565 (1920). The trial court's findings are to be reversed only if it is shown that substantial injustice has been done. Bolles v. City of Montpelier, supra; Prince v. Town of Braintree, supra. Absent an abuse of discretion the findings must stand. State v. Ahearn, 137 Vt. 253, 267, 403 A.2d 696 (1979). The evidence here disclosed that the roads would aid in fire protection, that the town tax revenues would increase without an undue burden in the cost of maintaining the highways, that they would connect two present dead-end town roads so that traffic could flow east and west on one town road and that they would permit more efficient and economic maintenance, particularly during the winter plowing season. The findings of necessity and public convenience are amply supported by the evidence.\\nAffirmed.\"}"
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+"{\"id\": \"8545348\", \"name\": \"ANONYMOUS\", \"name_abbreviation\": \"Anonymous\", \"decision_date\": \"1816\", \"docket_number\": \"No. 3\", \"first_page\": \"66\", \"last_page\": \"66\", \"citations\": \"1 Brayt. 66\", \"volume\": \"1\", \"reporter\": \"Brayton\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T19:45:59.394630+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ANONYMOUS.\", \"head_matter\": \"No. 3.\\nANONYMOUS.\\nCaledonia,\\n1816.\", \"word_count\": \"57\", \"char_count\": \"330\", \"text\": \"ALIAS execution, issued after more than a year had elapsed from the return of a prior execution, and levied on land. This evidence offered to the Jury to shew title in the plaintiff, in an action of ejectment.\\nDecided, that the proceedings are irregular, and do not shew title in the plaintiff.\"}"
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diff --git a/vt/8546027.json b/vt/8546027.json
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index 0000000000000000000000000000000000000000..f5de4a80c7d9fcc9119a55c9a5405cbae04e7237
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+"{\"id\": \"8546027\", \"name\": \"Charles Adams vs. John Abbot\", \"name_abbreviation\": \"Adams v. Abbot\", \"decision_date\": \"1830-01\", \"docket_number\": \"\", \"first_page\": \"383\", \"last_page\": \"388\", \"citations\": \"2 Vt. 383\", \"volume\": \"2\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T20:24:23.553248+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Charles Adams vs. John Abbot.\", \"head_matter\": \"Charles Adams vs. John Abbot.\\nChittenden,\\nJanuary, 1830.\\nThat a creditor, turning out property to an officer for him to attach upon his writ, and never having had the custody of the property, is not hable in trover for the prop* erty, after a nonsuit in his action.\\nThat the attaching officer, having the custody of the property, is alone liable to the person to whom it may belong, after the suit is determined.\\nThat there being a count in case, makes no difference, when the judge charges as in tro-ver, and when there is no proof to charge the creditor, except his not returning the goods on demand.\\nThis was an action that came up from the county court on the following exceptions allowed on trial: \\u201c This was an action of trover for sundry articles of property. Plea, not guilty, with notice. The action was against Abbott and Moses Bliss ; and judgment had, at a previous term, been rendered against Bliss and in favor of Abbott 5 and had been reviewed by the plaintiff, as against Abbott.\\nThe plaintiff\\u2019s testimony tended to prove that, in the year 1821, Abbott commenced a suit in his favor against Adams, and put the writ into the hands of Bliss who was then a deputy sheriff, and turned out the property described in the declaration to him, who thereupon attached the same, and without any further direction from Abbott, put it into a building belonging to Mark Rice,a few rods from the dwelling bouse o\\u00ed Adams, where it had ever remained, withoutany interference of Abbott. Also, that, at the term of the Supreme Court, hoidenat Burlingt\\u00f3n'm January, \\u00cd823, Abbott entered a nonsuit in his action, of Which Adams immediately had notice. Plaintiff also gave evidence, tending to prove, that, a short time previous to the commencement of this suit, he fieman- did the property of Abbott, who thereupon replied that he had never jja\\u00bf any [[-j\\u00a1ng t0 with the property since he turned it out to Bliss, the officer; that the officer had taken his own mode to keep it; that he, Abbott, had never had the custody of, nor in any way interfered with it; had no claim upon it, and presumed Mr. Bliss would give it up on request. Abbott proved, that the wag-gons, boards, posts, wood, oxen and cows, mentioned in the declaration, were at the time of the attachment receipted, or procured to be receipted, to the said Bliss by the plaintiff, and that the books were never removed from his possession. Abbott by his counsel contended, and] requested the court to charge the jury, that, upon the above evidence, if believed, the plaintiff could not maintain his action. The court refused so to charge ; but did charge the jury, that it became the duty of the said Abbott, immediately upon the determination of his suit against Adams, to return the property to him ; that no demand on him or the officer was necessary ; and that, if the jury found that he had neglected so to return it, the plaintiff was entitled to recover for the property not receipted, nor returned. Verdict for the plaintiff. To which charge defendant excepts, &c.\\u201d\\nSawyer and Thompson, for defendant. \\u2014 1. Trover will not lie in a case like the present, where the defendant never had the custody ol the property, nor attempted to exercise any controul over it, except merely turning it out to the officer for him to attach. A demand and refusal to deliver is no conversion, but only evidence of a conversion ; and when it fully appears that there has been no conversion, trover cannot be maintained. 2 Mod. 244, Miers vs. Solebay. \\u2014 Bull. JY. P. 44. \\u20145. Burr. Rep. 2825.\\nIf the plaintiff, in this case, can complain of any thing, it is the detention of his property pending the first suit, and not the conversion of it. The mere omission to return the goods, after the lien is off, is no conversion. 6 East Rep. 540, Me Comber vs. Davies. \\u2014 2 Bos. & Pul. 438, Bromley vs. Conwell. \\u2014 1 Chit. PI. 154. \\u2014 2 Phil. Ev. 118, note a.\\n2. The defendant contends, that, where the goods were never in his possession, refusal is not evidence of an actual conversion. \\u20141. Camp. 440, Smith vs. Young.\\n3. The proof of the defendant\\u2019s refusal, in this case, amounts to nothing. It is no denial of the plaintiff\\u2019s right. It asserts none in the defendant. He merely stated that he had never interfered with the property, and referred the plaintiff to the. officer, who, the defendant presumed, would re-deliver it on request, This is no evidence of a conversion. \\u2014 -Green vs. Dunn. 3 Camp. 215.\\n4. The defendant contends, that the case does not state . . . 7 \\u2022 ip Uct of the defendant, amounting to an u assumption upon himselj of the property, and the right of disposing of the plaintiffs goods,\\u201d which Lord Holt defined a conversion to be. 6 Mod. 212. It will surely be admitted, that the failure of the defendant\\u2019s suit, or his subsequent failure to return the property, or any mere nonfeasance of the defendant, cannot render his original taking Unlawful, so that by relation back, it may assume the character of a conversion. There is no fact in the case, which could make the defendant a trespasser by relation-. If trover can be maintained at all, it must be in consequence of something subsequent to the taking; and therefore the charge of the court rested the conversion on the only possible ground on which it can be sustained, viz. a simple nonfeasance of the defendant, On this point, the authorities already cited are conclusive ; and it would be easy to accumulate them. In connection with the fact, that the defendant has never been in possession, actual or constructive, of the property in question since the attachment, the case states another fact which cannot, and ought not to, be without its influence. The property for which this action was brought, was deposited by the officer on Mark Rice\\u2019s premises, but a trifling distance from the plaintiff\\u2019s house ; and the probability is, that at the determination of Abbot\\u2019s suit, the property was as near at hand, and could have been obtained by the plaintiff as easily, as in the situation it was before the attachment. After the determination of Abbot\\u2019s suit, the plaintiff could have taken it without any possible objection or embarrassment. None could or Would have beeninterposed by the officer or the defendant, as Adams was expressly informed. By the failure of the suit, the attachment and the receipt were discharged, and the property nearer to the plaintiff\\u2019s premises than before ; and no expense and trouble would be required on the part of the plaintiff. Under these circumstances is it not just and fair to contend, that the spirit of the defendant\\u2019s obligations in regard to the property was satisfied ? For what valuable purpose \\u2014 whether in contemplation oflaw or reason, could the defendant be required to perform the idle ceremony of conveying this property from Mark Rice\\u2019s shed to Adapis\\u2019 premises ?' For every substantial end, the plaintiff was in as g\\u00f3od a situation in regard to this property, as though it had been brought on to his own premises ; and if, for any other purpose, the plaintiff has deemed it expedient to let it rot down, and then extract its value in cash from the defendant, a claim so unreasonable must be supported by something more substantial than quibbles. Nor will the defendant be deemed to have con verted it, when the case shows no act of the defendant approach\\u2122 t . ' \\u2022 \\u2022 i* i i i mg to an assumption or appropriation ot the property, and wheir-every fact in the case shows his intention to- have been directly reverse. But it the defendant\\u2019s omission to put the property on the plaintiff\\u2019s premises, he an injury, an action on the. case was die proper and only remedy,\\nCharles Mams, pro se. \\u2014 The only question involved in this case, is, whether the person who attaches property is in any way accountable for the return of that property on the determination of the suit.\\nIt will be admitted, that if. accountable at all, he can be charged in this form of action. It would seem, that all the points, necessary to make out the case-of trover, are here established; the property of plaintiff,' possession by defendant, and his conversion or refusal to return on demand.\\nAttachments of property are not known in 'England, and we cannot expect to find adjudged cases on that point from the decisions of that country : but the doctrines, applicable to cases of trover in general, warrant the claim of the plaintiff in this suit.\\nIf the property attached was in the possession of the defendant, he is then responsible for. its return, and his refusal, or neglect to deliver, is the evidence of conversion. The whole question is narrowed down, to the single inquiry, whether this property was ever in the possession of the defendant. To make out possession in defendant it is not necessary that he should, at any time, have had the actual custody of the property. If it was in the possession of another by his direction, or if it was subject to his con-troul, it is then, in contemplation of law, in his possession. In the attachment of property the officer is the agent of the creditor, \\u2014 is obliged to take such as is turned out to him, and, although the property may not be in the creditor\\u2019s actual possession or. keeping, it is holden for his benefit,and is, at all\\u2019 times, subject to his controul, and may be released at any time, when lie chooses to direct. The officer is either his agent, or he is the servant of the officer ; and it would be a solecism to. call him the servant who directs the whole business, aad may controul it at his- pleasure. In the case of Bond vs. Ward', 7 Mass. 130, Chief Justice Parsons stated, that it had been decided, that the. action had been sustained even when the property had been returned z and\\\" in the case of Hayden vs. Shed, 11 Mass. 500, the court decided that trespass would not lie, on the ground that case would. I have no doubt the action will well lie against the officer on account of his actual possession. The officer is not merely the servant of the'creditor ; for if he was, the suit would not lie against him.\\u2014 Miers vs. Soleby, 2 Mod. 242.\\nIt would be unreasonable to compel the party whose property is taken, to look to the officer exclusively. The officer may not be responsible. Too many cases of this nature have occurred. It would create additional expgnse \\u2022; for the officer could not be compelled to release the property until he had notice of the termination of the suit. The expenses of returning the property may be considerable. They ought not to be thrown upon the party, who has not been in fault; and they cannot be thrown upon the officer. All that he can be required to do, would be to,give-up -the property. And, besides, who is to bear the loss in case of -any destruction of the property ? The officer is only accountable for due diligence ; but the party taking, -does-it at-his peril.\", \"word_count\": \"2353\", \"char_count\": \"13365\", \"text\": \"Hutchinson, J.\\nafter stating the case, delivered the opinion of the court. \\u2014 The trial proceeded, in this case, as if the action were trover merely ; and the bill of exceptions, allowed at the trial, contains no intimation of any .grounds assumed by either party, but such as might arise in trover. The present argument seems to have proceeded upon the same ground, till a late suggestion, that the declaration contains:a count, also, in case for detaining the property. We do not discover, that this circumstance affects the merits. If this were not urged on the trial, there could be no decision upon it now to be revised ; and nothing, in the bill of exceptions, presents any question, but what would arise upon the count in trover. Besides, there is no-proof of any wrong in the original taking, but only in the not returning the property, after a discontinuance of the suit in which the same had been attached. This presents the only question in the action, whether the creditor, who turns out property to an officer, for him to attach, is liable toan action, if that property is not returnedimmediately upon a discontinuance of the suit? We think him not so liable. The officer who attaches properly, is the lawful keeper of that property ; and must, at his peril, have it ready for the creditor, if he recovers in the suit, and takes out execution and pursues his lien, and have it ready for the debtor if he recovers, or when the lien of the creditor is in any way discharged. Let the property be ' inhere it will, there is no constructive possession in any person 'but the attaching officer, while the lien, created by the attachment, is continued. The creditor has no right to the possession. His claim is, that the officer shall safely keep and sell for his benefit. If the officer should deliver the property to the creditor for Safe keeping, he would be, like any third person, -the keeper or the officer. If when the lien is discharged by a discontinuance \\u00b0 J of the suit, the property be demand of him who has the actual custody, and he refuse to deliver it to the debtor, probably trover w\\u00b0Md lie ; because the officer would then have no claim but for the debtor. Whether that be so or not, this shows Abbott never to have had the actual possession oj this property, and the charge of the court, holding him liable to the debtor, under such circumstances, was erroneous, and the judgment of the county court is reversed, and, A new trial is granted.\\nG. B. Sawyer h J. C. Thompson, for defendant.\\nThe plain tiff pro se.\"}"
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diff --git a/vt/8546143.json b/vt/8546143.json
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@@ -0,0 +1 @@
+"{\"id\": \"8546143\", \"name\": \"ANONYMOUS\", \"name_abbreviation\": \"Anonymous\", \"decision_date\": \"1816\", \"docket_number\": \"No. 1\", \"first_page\": \"118\", \"last_page\": \"118\", \"citations\": \"1 Brayt. 118\", \"volume\": \"1\", \"reporter\": \"Brayton\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T19:45:59.394630+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ANONYMOUS.\", \"head_matter\": \"FALSE IMPRISONMENT.\\nNo. 1.\\nANONYMOUS.\\nCaledonia,\\n1816.\", \"word_count\": \"61\", \"char_count\": \"403\", \"text\": \"ACTION of tresspass for an assault and battery and false imprisonment.\\nDefendant pleads legal process, by which the plaintiff was imprisoned.\\nPlaintiff replies that he was free from arrest, having obtained the benefit of the Jail delivery act, and avers he was admitted to the oath. Demurrer.\\nCourt decided \\u2014 That the replication was insufficient.\"}"
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diff --git a/vt/8547319.json b/vt/8547319.json
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index 0000000000000000000000000000000000000000..347e7795c93986c1c489b2f00ed3cc4f8ebe1787
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+"{\"id\": \"8547319\", \"name\": \"James W. LOEWEN v. Patricia H. LOEWEN\", \"name_abbreviation\": \"Loewen v. Loewen\", \"decision_date\": \"1978-10-30\", \"docket_number\": \"No. 263-78\", \"first_page\": \"638\", \"last_page\": \"638\", \"citations\": \"136 Vt. 638\", \"volume\": \"136\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-11T02:48:19.198920+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James W. LOEWEN v. Patricia H. LOEWEN,\", \"head_matter\": \"James W. LOEWEN v. Patricia H. LOEWEN,\\nNo. 263-78\", \"word_count\": \"18\", \"char_count\": \"105\", \"text\": \"October 30, 1978. Appeal dismissed. V.R.A.P. 10(b)(1).\"}"
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