after the fact," &c., was held bad, on motion in prosecutor, though it involve the proof of a arrest, for not alleging that the defendant did negative. Ib., 66-7. See Wilson, J., in State not stand in the relation of husband, &c. State v. Hodgdon, 41 Vt. 142-3. State v. Palmer, 18 v. Butler, 17 Vt. 145. (G. S. c. 120, s. 16.) Vt. 570, starts a quere, not decided. 211. By Redfield, J. The quality required 216. An indictment for being a peddler in the person to commit the offense, must be without license under G. S. c. 81, s. 2.-That stated. Where the exception is in a separate section defines who shall "be deemed a pedsection of the statute, or in a proviso, or excep- dler"-provided, however, that the provisions tion distinct from the enacting clause, this is of this section shall not be construed to extend matter of defense and need not be alleged; but to articles of provisions or produce," &c., &c. if the exception is contained in the body of the Held, that the exceptions were not descriptive enacting clause, it is in the nature of a condition of the offense nor defined it, and need not be precedent and must be alleged. Ib., 149. 45 negatived in the indictment. State v. Hodgdon, Vt. 261. 41 Vt. 139; and see State v. Norton, 45 Vt. 212. So, an indictment on the statute pro-258. hibiting "any secular labor," &c., on the Sab- 217. Supreme court. After the supreme bath, "except such only as works of necessity court has adjudged an indictment to be sufficient and charity" (G. S. c. 93, s. 1.), was held bad, on demurrer, it is matter in their discretion for not alleging that the act charged was not a to allow, or not, the prisoner to plead anew work of necessity, or charity. State v. Barker, and to remand the case to the county court for trial. 18 Vt. 195. State v. Wilkins, 17 Vt. 151. 213. Bennett, J. Where the exception is 218. Statute of limitations. An indictin the body of the statute which enacts the of-ment was quashed on motion where it appearfense, and enters into it as a part of its descrip-ed, on its face, that the prosecution was barred tion, it is necessary to state all the facts which by the statute of limitations. State v. J. P., 1 constitute the offence; and to do this, the ex- Tyl. 283. ception must be negatived. If the exception is distinct from the enacting clause, it then becomes matter of defense and need not be negatived. Ib., 197. 45 Vt. 261. 219. Note. By Stat. 1870, No. 5, objections for formal defects apparent on the face of an indictment, &c., must be taken by demurrer, or motion to quash; and the indictment may be amended in these particulars. 3. Proceedings after indictment. One 214. An indictment for polygamy under the statute (G. S. c. 117, ss. 5-6), providing (s. 5.), "If any person who has a former husband or wife living shall marry another person," &c., "he or she shall, except in the cases mentioned 220. Appearance Misdemeanor. in the following section, be deemed guilty of indicted for a misdemeanor had appeared and the crime of polygamy," &c. Sec. 6. then given bonds for his appearance from term to provides, "The provisions of the preceding term. Held, that he might thereafter appear section shall not extend to any person divor- and plead by attorney. State v. Dean, Brayt. 26. ced," &c., &c. Held, that it was not necessary 221. In trials for inferior misdemeanors, a to allege that the defendant was not within any verdict may be rendered in the absence of the of the specified exceptions. State v. Abbey, 29 respondent. If he do not appear after verdict, Vt. 60. he and his bail may be called; or, the court 215. By Isham, J. The question is, wheth- may issue a warrant to apprehend and bring him er the exception is so incorporated with and before the court to receive sentence, or both. becomes a part of the enactment, as to consti- These principles apply as well to trials before tute a part of the definition or description of the justices, as elsewhere. The warrant, in such offense; for it is immaterial whether the excep- case, should be made returnable forthwith, and tion or proviso be contained in the enacting not to some future day by adjournment. Sawclause or section, or be introduced in a different yer v. Joiner, 16 Vt. 497. manner. It is the nature of the exception, and 222. In that class of offenses where the not its location, which determines the question. ordinary judgment does not extend to the inNor does the question depend upon any dis- fliction of imprisonment by way of punishment tinction between the words "provided" or "ex- primarily, the accused may appear by counsel, cept," as they may be used in the statute. The and, having made appearance, the trial may exception should be negatived only when it is proceed without regard to the continued presdescriptive of the offense, or defines it; where ence of either the accused, or his counsel. it affords matter of excuse merely, it is to be Tracy ex parte, 25 Vt. 93. See State v. Wheeler, relied upon in defense. The question is one 3 Vt. 344. not only of pleading but of evidence, and where 223. Nolle prosequi. While a criminal the exception must be negatived in the indict-cause is on trial to the jury, the State's attorney ment, the allegation must be proved by the cannot enter a nolle prosequi without leave of the court. Such leave was refused, where the Five hours later, the State's attorney told the prisoner if he wanted to make a confession he could do so, but must not expect any favor; 224. The right of the government attorney that he was not obliged to make a confession to enter a nolle prosequi is suspended when unless he chose to, nor to tell anything to crimtrial commences to the jury. After that, the inate himself; that if he was going to tell anypower is to be exercised only by permission of thing, to tell the truth-to tell it just as it was. the court. State v. Roe, 12 Vt. 93. The prisoner then made a confession. Held, 225. Trial-Evidence. The doctrine of that this communication of the State's attorney prima facie proof obtains as much in criminal was sufficient to remove any reliance which the as in civil actions. Forbes v. Davison, 11 Vt. prisoner might have placed upon the previous inducements, and that the second confession 226. Corpus delicti. Where the corpus was admissible. State v. Carr, 37 Vt. 191. delicti is attempted to be shown by circumstan- 232. In a criminal prosecution, where the tial evidence, it must be so established as to statement or admission of the respondent is put positively exclude all uncertainty or doubt, and in evidence against him, the whole must be put all the circumstances combined must produce in, and the whole is evidence. Such parts as the same degree of certainty as positive proof. are in his favor should be taken as true, unless State v. Davidson, 30 Vt. 377. disproved by the other circumstances or testi 660. 227. Where the evidence of the corpus mony in the case, or by their own innate imdelicti was wholly circumstantial, and certain probability, or inconsistency, or absurdity. State evidence tended to identify the party charged v. McDonnell, 32 Vt. 491. State v. Mahon, 32 as connected with the transaction, but not to Vt. 241. prove the corpus delicti ;-Held erroneous, that 233. Where the confession of a respondent the court declined on request to instruct the is put in evidence, his co-respondent cannot rejury as to a separation and proper application quire that such part of it as implicates him of the evidence. Ib. shall be excluded, but the whole confession 228. It is said in some of the books, that must be received as it was made; leaving the the accused should not be convicted upon his court to charge properly as to its effect, as to confessions, without other proof of the corpus such co-respondent. State v. Fuller, 39 Vt. 74. delicti. Whether this is an absolute rule of 234. Fabricated defense. The introduclaw, or merely a precautionary rule to be ob- tion of false or fabricated evidence in defense served by the jury in weighing the evidence-is always regarded as an inferential admission quare. If it is a rule of law applicable to fel- of guilt, although not of a conclusive characonies and high crimes, there is no such abso- ter;-as, a false and fictitious deposition oblute rule of law applicable to the lower grades tained by the respondent personating the apparof crime and misdemeanors-as, for selling ent deponent. State v. Williams, 27 Vt. 724. liquor against the statute. State v. Gilbert, 36 235. Alibi. In a criminal prosecution one Vt. 145. defense was an alibi. The court declined to 229. Confession. A confession made un-charge that the jury must be satisfied beyond der any threat, promise, or encouragement of reasonable doubt that the respondent was not favor, must never be received in a criminal at the place of the alibi at the time in question; prosecution. State v. Phelps, 11 Vt. 116. State but did charge that if they found the alibi v. Walker, 34 Vt. 296. See State v. Carr, 37 proved, they must acquit him, and that the Vt. 191. State v. Jenkins, 2 Tyl. 377. prosecution, in order to warrant a conviction, 230. The owner of a factory, which the re- must establish the whole case beyond a reasonspondent, together with one Brierly, was charged able doubt. Held sufficient; and that the with burning, visited the respondent in jail at charge given embraced more than an answer to his request, and said to him: "That he wanted the specific request refused. State v. Cameron, him to tell the truth just as it was; that they had 40 Vt. 555. got Brierly and probably they would both be 236. Identification. In a criminal trial, tried that day, and that it would be better to the State's witnesses had testified to the prestell the truth just as it was, for if Brierly should ence of the prisoner at the scene of the crime, get the start of you, it may go hard with you. and to his identity, and had further testified, You are a young man, and it would be better without objection, that they immediately infor you to tell it just as it is"-and thereupon formed of him, and within an hour caused his the respondent confessed, &c. Held, that the arrest. The prisoner put in evidence that these confession made was not admissible. State v. witnesses, at the preliminary examination, did Walker. not testify so positively as now to his identity. 231. The prisoner, under the influence of The court charged that the fact that these witimproper inducements, made a confession to nesses so acted upon their belief and knowledge the officer making the arrest and his assistant. that the person they saw was the prisoner, and that they so caused his arrest, tended to cor- 242. In a criminal trial, the respondent reroborate their testimony as to identifying him. quested a charge that the fact that he had not Held correct. State v. Dennin, 32 Vt. 158. testified in his own behalf was not to be even 237. Testimony of an accomplice. On thought of, or taken into consideration by the trial of an indictment against two for a joint of-jury to his prejudice. The judge refused this, fense, the main testimony was that of an accom- saying he could not prevent the jury's thoughts, plice, which was corroborated as to the guilt of but charged that such fact should not be taken one of the respondents only. The court charged, against the respondent. Held, that although in substance, that the jury might convict both such remark of the judge as to the thoughts of prisoners on the testimony of the accomplice, the jury was unfortunate, the charge was corif it was corroborated in important particulars rect, and he did right in refusing to charge as as to one and commended itself to their credit requested. Ib. as true, beyond a reasonable doubt, as to both; 243. Where the court in a criminal case and declined to instruct, and did not advise nor sent to the jury, while deliberating upon the caution the jury, not to convict the one as to case, a copy of the State statutes for their inwhom such testimony was not corroborated. formation as touching the case in hand;— Held, Held not erroneous-that the better practice is that this was error. State v. Patterson, 45 Vt. to advise the jury to convict no prisoner, un- 308. less there is some proof, other than the testi. 244. It is not the duty of the court, in a mony of an accomplice, tending to show that criminal case, to instruct the jury that they prisoner to have had a guilty connection with must not hold the law to be more unfavorable the commission of the crime; but this is only to the respondent than the court charged it to a rule of practice, and not a rule of law. State be. State v. Clark, 37 Vt. 471. v. Potter, 42 Vt. 495. See State v. Howard, 32 Vt. 380. 245. One judge of the county court may take a verdict in a criminal case, when the other 238. Former acquittal. A respondent judges are only temporarily absent, and subject acquitted in the county court on all the counts to call. State v. Bryant, 21 Vt. 479. of an indictment except one, appealed to the 246. A new trial will not be granted, after supreme court, and on arraignment pleaded, a verdict of guilty on an information for a misgenerally, "not guilty." Held, nevertheless, demeanor, for the reason that a witness for the that he was not compelled to go to trial on prosecution testified to material facts without those counts on which he had been acquitted. being sworn, where it is not alleged in the petiState v. Kittle, 2 Tyl. 471. tion that the respondent and his counsel were 239. Former conviction. The respondent ignorant of that fact until after the verdict, and wounded two persons in the same affray, at the where it is not shown that the testimony given same instant and by the same stroke. He was was not true, nor that the respondent had suslegally convicted of a breach of the peace by tained some injury. State v. Camp, 23 Vt. assaulting and wounding one of them. Held, 551. that this was a bar to an indictment for assault- 247. Jurors in a capital case may not separing and wounding the other-there being but ate after being sworn. State v. Godfrey, Brayt. one offense. State v. Damon, 2 Tyl. 387. 170. 240. The theory that in criminal cases 248. A verdict of guilty on a trial for perthe jury are judges of the law as well as of jury was set aside, because one of the jurors the facts, does not require the submitting to had separated from his fellows, unattended by them of the record of a former conviction, an officer, after he was sworn and before verwhich affects the sentence only. This is purely dict. State v. Shippy, Brayt. 169. a question of law bearing upon the duty of the 249. Where the jury, on inquiry by the court-no question of fact, such as the identity of parties, being raised. State v. Haynes, et al., 36 Vt. 667. court, disclosed their verdict in a criminal case before the verdict was actually taken;Held, that this was no cause for setting it aside. State v. Bryant, 21 Vt. 479. 241. Irregular conduct of trial. In a criminal prosecution the prosecuting attorney 250. Judgment on general verdict, one persisted, against the court's ruling, in arguing or more of the counts being bad. Where to the jury that the fact that the respondent did an indictment apparently charged the respondnot take the stand as a witness and explain cer- ent, in the same count, as an accessory both tain transactions involved in the case, was evi- before and after the fact, and the count was indence of his guilt. Because the court did not sufficient as to the latter charge, the court treatactively interfere and prevent this by an en- ed that part as surplusage, and refused to arrest forcement of its own order;-Held, that it was judgment after a general verdict of guilty. such an irregularity suffered, and error, that State v. Butler, 17 Vt. 145. the conviction should be set aside on exceptions, State v. Cameron, 40 Vt. 555, 251. After a general verdict of guilty, judgment will not be arrested for the insufficiency of the indictment, if it contains one good count. | sion merchant to be sold "for cash," he is liable State v. Davidson, 12 Vt. 300. State v. Bean, therefor if he sells and delivers the goods upon 19 Vt. 530. a promise to pay therefor in future. A "cus252. After a general verdict in a criminal tom" of the trade to treat a sale upon an actual cause, if one or more of the counts is suffi- credit of a few weeks, days, or other time, as a cient, and others bad, the court will pronounce cash sale, is inconsistent with the terms of the a judgment upon such as are good, and those contract ["for cash"], and is void. only; if all are good, then judgment will be Arnold, 8 Vt. 252. Catlin v. Smith, 24 Vt. 85. rendered upon the count charging the highest 32 Vt. 622. offense. State v. Hooker, 17 Vt. 658. Bliss v. 3. Custom, or usage, can never be given in evidence to vary or control an express contract. Its office is strictly one of exposition, being a means of arriving at the intention of the parties, and of ascertaining what the true contract was, and its nature and extent, which otherwise might be indeterminate and uncertain, arising from implications, presumptions, and acts more or less equivocal. Linsley v. Lovely, 26 Vt. 2. A custom of merchants in New York to 253. Under an indictment of four counts, consign consigned goods to others to sell, and the court instructed the jury that there was no then for each house to charge a commission of evidence to support either the second or fourth two and a half per cent-the usual commiscount, and that the respondent could not be sion-for selling, was held void, as against comconvicted on either of them; but the jury ren- mon reason and common justice. Spear v. dered a general verdict of guilty. Held to be Newell, 23 Vt. 159. no sufficient ground for a new trial, for that the conviction and sentence would be only upon the other counts. State v. Wheeler, 35 Vt. 261. 254. Where a respondent was charged with distinct offenses in two different counts of the indictment, and the evidence did not tend to sustain one of the counts, the county court erroneously charged the jury that they might find the respondent guilty on one or both of the counts, and the jury rendered a general verdict 123. of guilty. On exceptions, the supreme court 4. Such custom, or usage, in order to its refused a new trial for the error, but rendered being admissible as an item in the testimony sentence upon the count to which the evidence tending to show the true contract of parties, applied. State v. Bugbee, 22 Vt. 32. which is otherwise equivocal, must be the gen255. All the counts of an indictment should eral usage of the whole trade or business, and in some way be legally disposed of. Where so well established and uniformly acquiesced in, the subject matter of two counts of an indict- and for such length of time, that the jury may ment was the same, and, through some inad- be fairly justified in inferring that it was known vertence, a verdict was entered only upon one, to the contracting parties, and that it entered the supreme court on exceptions allowed the prosecutor to enter a nolle prosequi on the other count. State v. Roe, 12 Vt. 93. 35 Vt. 266. into their minds, and made, by implication, a part of their contract. Held, that anything short of this-as, "the course of dealing in that branch of trade"— should be laid wholly out of See CONSTITUTIONAL LAW; STATUTE, II.; the case. Ib. JURY; EVIDENCE. CUSTOM. 5. Where a contract is upon its face of doubtful construction, a custom may be proved in order to determine the construction, provided it be uniform and known, so as to be fairly presumed to have been in the mind of the parties while making the contract. Copper Co. v. Cop 1. Where goods are consigned to a commis-per Mining Co., 33 Vt. 92. DAMAGES. D. 2. De minimis, &c. The invasion of a legal right always imports some damage, though no 1. Right to damages. As matter of strict pecuniary loss results therefrom. The maxim right, whatever is the subject of exclusive legal de minimis, &c., does not apply in such case. ownership, and is lawfully possessed and claim- Cole v. Drew, 44 Vt. 49. Fullam v. Stearns, ed by any one as property, should be deemed 30 Vt. 443. to possess value sufficient, at least, to support a 3. Where, in an action, an invasion of a right legal vindication of the party's right. Fullam is established, though no actual damage be v. Cummings, 16 Vt. 697. shown, the law gives nominal damages. This applies to cases where the unlawful act might ultimate damage, unless increased by his own have an effect upon the right of the party, and negligence, or misconduct. Bardwell v. Jamaibe evidence in favor of the wrong-doer, if the ca, 15 Vt. 438. right should ever come in question. So, too, 8. In trespass q. c. f., it was objected that nominal damages will be given, where one the plaintiff could not recover for damage done wantonly invades another's rights for the pur-by breaking down any fences, because none was pose of injury, though no actual damage be declared for. The court charged, that so far done. But no damages will be given where no as the breaking and entry declared for were efunlawful intent, nor disturbance of a right, or fected by the act or means of breaking down the possession, is shown, and where it is shown fence belonging to the close, the damages therethat no damage has been sustained. Paul v. Slason, 22 Vt. 231. Graves v. Severens, 40 Vt. 640. Fairbanks v. Kittredge, 24 Vt. 9. by done to the fence might properly be taken into consideration as a part of the damages occasioned by the breaking and entry. Held 4. This doctrine was applied where an offi- correct,-such damages being the natural and cer, attaching hay, took and used the debtor's necessary consequence of the act charged. pitchfork in removing the hay, but returned it Clark v. Boardman, 42 Vt. 667. where it was found, so that the debtor had it 9. Loss of time. The loss of time, in again, and it was not damaged. In an action actions for personal injuries, is a proper eleof trespass by the debtor therefor ;-Held, that ment in computing actual damage; and the he could not recover, and that the maxim, de value of the plaintiff's time to him for the earnminimis non curat lex, well applied. Paul v. ing of wages in his trade, or profession, may be Slason. shown. Nones v. Northouse, 46 Vt. 587. 5. In levying upon and removing certain 10. Physician's bill. In an action to remachinery from a mill, the officer, in order to cover for a personal injury, the declaration disengage it from the bands by which it was averred that the plaintiff "was thereby put to connected with the shafting, cut the thongs by great loss, trouble, damage and expense in the which the bands were laced together, instead of needful employment of physicians, nurses,&c." untying them and taking them out without Held, that this was a sufficient averment of cutting, which could easily have been done. special damages to allow a recovery for the phyThese bands did not belong to the owner of the machinery, but of the mill. The testimony was, that these thongs "were considerably worn and of small value." In trespass by the owner of the bands against the officer, the court charged that if the jury found that the thongs were "old, worn out and nearly worthless," the defendant would not be liable for cutting them, unless he did so wantonly; and further told the jury, that as the suit appeared to be brought to try the defendant's right to enter the mill and take the machinery, the court would not advise them to turn the case on some trifling damage in this 12. The only remedy for recovering of the particular, provided the defendant acted in good other party the expenses, beyond taxable costs, faith. Held erroneous, and that the rule de of defending a suit, is by an action for minimis does not apply in such case, which was malicious prosecution. Sampson v. Warner, 48 an invasion of a legal right, and where also the Vt. 247. damage could be estimated. Fullam v. Stearns, 30 Vt. 443. 44 Vt. 53. sician's bills; and, "in the case of a severe bodily injury, we regard the services of a physician as being so essentially necessary, that they may be recovered for as part of the general damages directly resulting from the injury." Folsom v. Underhill, 36 Vt. 580. 11 .Expenses of suit. The expenses of a suit, beyond the taxable costs, cannot be recovered as damages in the same suit. Park v. MeDaniels, 37 Vt. 594. Rut. & Wash. R. Co. v. Bank of Middlebury, 32 Vt. 651. Harris v. Eldred, 42 Vt. 42. Post 31. 13. The plaintiff's oxen had been stolen and taken to the defendant in the State of New 6. General-Special. General damages, or York. The defendant having refused to sursuch as is the common and ordinary consequence render the oxen on demand, the plaintiff reof the act complained of, need not be set forth sorted to legal proceedings in New York to respecifically; and if some portion is enumerated, gain the possession and succeeded, but incurred this will not preclude the party from proving expenses therein. In an action of trover afterother general damage; whereas special dam-wards brought, alleging such expense as special age, required to be specially stated, is some- damage ;-Held, that they were not recoverthing unusual and extraordinary, and not the able. Harris v. Eldred, 42 Vt. 39. common consequence of the wrong complained 14. where there is an obligation to inof. Hutchinson v. Granger, 13 Vt. 386. 36 demnify. Where judgment had been recovVt. 592. ered against a town for the insufficiency of a 7. Where the primary cause of damage is highway occasioned by the acts of a railroad occasioned by the fault of the defendant, the company, and the company were notified of plaintiff may recover the full amount of his the suit but declined interfering ;-Held, in an |