83. It is the province of the magistrate tak- the statute. On a second trial, the court ading a deposition to determine the capacity of mitted the deposition against exception. Held, the witness to relate the facts; and where a boy that although on the first trial the court erred in of fourteen years had given his deposition, and admitting the deposition, and although the the facts narrated were few and simple, the magistrate had no authority without leave of county court rejected the offered testimony of court to amend his certificate, yet, as such the magistrate to show apparent want of intelli- amendment might have been made by leave of gence in the boy. Held correct. Hough v. court in its discretion, the subsequent admission Lawrence, 5 Vt. 299. of the deposition was a ratification of the act of 84. Cause for taking-continuing. Al- the magistrate, and the admission of the depothough the cause for taking a deposition may sition was not error. Oatman v. Andrew, 43 be temporary, more or less, it is to be treated Vt. 466. as continuing and as existing at the time when 91. Substance of deposition. Where a the deposition is offered, unless the removal of deponent testified that he received of the defenthe cause be shown by the opposite party.dant certain property for which he now claims Pierson v. Catlin, 18 Vt. 77. Randolph v. pay of the plaintiff, and had credited the defenWoodstock, 35 Vt. 291.

85. -removed. If a deponent is personally present in court, his deposition cannot be used. Sergeant v. Adams, 1 Tyl. 197.

dant therefor on the deponent's books, and settled with him therefor ;-Held, that it was no objection to the admission of the deposition, that such books were not produced on the trial,

86. A deposition, taken for the cause that-they not being within the plaintiff's control. the deponent resides more than 30 miles from Cross v. Haskins, 13 Vt. 536.

the place of trial, cannot be used, if, at the time 92. Where a witness in his deposition deof the trial, he resides within that distance, the tailed a statement which H, a third person, cause of taking having ceased. Gallup v. had made, and added, that the defendant "affirmed all that H had previously stated;"

Spencer, 19 Vt. 327.

87. Computation of distance. The dis--Held, that the deposition was admissible tance of the witness's residence from the place against the defendant. Hicks v. Crane, 17 Vt. of trial, as affecting the right to take and use, 449. or to enforce the giving of his deposition, is to 93. A deposition, at the close of the exambe computed upon the way of usual travel from ination in chief, had these words: "The above one point to the other, although there be a is a copy of a deposition which I gave in 1849 shorter way not usually or but seldom travel-(except the date having been altered), when ed. In re Foster, 44 Vt. 570. the facts were fresh in my recollection." Then

88. Suit continued. A deposition was followed the cross examination, and then the taken by the defendant, the cause of taking deposition was signed and sworn to. Held, being the inability of the deponent to attend that the deposition was admissible, and was a the trial; but he was produced by the plaintiff sworn statement of all the facts contained in it. at the trial, and testified. The witness after- Robinson v. Hutchinson, 31 Vt. 443. wards died, and at a subsequent trial;-Held, 94. The question being whether a negotiathat the deposition was admissible as testimony ble promissory note had been transferred to the in chief ;-as was also the testimony given by plaintiff in such way as to cut off a defense as the witness on the former trial. Starksboro v. against the payee, the deposition of the witness Hinesburgh, 15 Vt. 200. 42 Vt. 196. stated that the note was transferred to him by 89. A deposition was taken, the cause stated the payee "before the maturity thereof and bebeing that the deponent was going out of the fore due; that he received the same in the State, not to return before the then next term course of business, without any knowledge or of the court in which the suit was pending. notice of any claim or defense, &c." The The deponent did leave the State and had not county court, on motion, ordered the words "in returned before said term, at which the cause the course of business" to be erased, before subwas continued without trial. After said first mitting the deposition to the jury. Held, by a term and before the next, the deponent return- majority, that this was properly done, that ed to the State, remained for a time, and again these words were only an expression by the went out of the State and remained and was witness of his judgment of the legal result of out of the State when the trial came on. Held, the facts which he had specifically stated. that the deposition was admissible. Johnson v. Clough v. Patrick, 37 Vt. 421. Sargent, 42 Vt. 195.

95. Where a deposition is equivocal, the 90. Amendment. A deposition was ad- better rule is to admit the testimony, and leave mitted, against exception taken thereto for a the interpretation to the jury with proper indefect in the caption and certificate. After the structions from the court; but the court may term, the magistrate, without leave of court, also put its own construction upon the evidence, amended his certificate making it conform to and direct a verdict, but is not obliged to do so,

as it is in case of written contracts. Powers v. Leach, 26 Vt. 270.

104. Ex parte depositions. It was no objection to an ex parte deposition that it was 96. Where a deposition is shown by special not filed 30 days before the next term of court verdict of the jury to be wholly immaterial as after it was taken, if it was filed 30 days preevidence, the supreme court will not consider vious to the term at which it was offered in evithe question whether the county court erred in dence. Smith v. Woods, 3 Vt. 485. Clark v. excluding it because of an alleged defect in Brown, 15 Vt. 658. the caption. Fullam v. Goddard, 42 Vt. 162. 105. Only depositions taken ex parte were 97. Practice. A deposition once used be- required to be filed 30 days before court. comes a part of the papers and exhibits of the taken with notice, the deposition was admissible cause, for use in any future stage of the same without previous filing, although the case was cause,-as, on appeal, or before auditors or such that the deposition might have been referees. By allowing it to be once read with- taken ex parte. Wainwright v. Webster, 11 Vt.

out objection, the party waives, for that and 576.

If

all future trials of the case, all objections to any 106. Where a deposition was taken ex parte ; informality or irregularity in the taking, of -Held, that the magistrate must certify the which he has knowledge, whether apparent in reason why the adverse party was not notified; the caption and certificate, or not; and can and that the court could not judicially take thereafter raise objections only to the compe- notice of any facts, as a reason for not so notitency of the witness, or the subject matter of fying him, which do not appear in the certifithe deposition. Randolph v. Woodstock, 35 Vt. cate. Hopkinson v. Watson, 17 Vt. 91.

291. Walsh v. Pierce, 12 Vt. 130. Perry v. Whitney, 30 Vt. 390.

98. Where a deposition contains matter improper or irrelevant, it should not be delivered to the jury, and only such part be read as is admissible. Wood v. Stewart, 7 Vt. 149.

107. Under the statutes for taking depositions without notice;-Held, that an ex parte deposition, taken to be used before auditors, was not required to be filed thirty days before the hearing. Brigham v. Abbott, 21 Vt. 455. | Churchill v. Briggs, 24 Vt. 498.

99. Though some portions of a deposition 108. A deposition taken without notice and should have been excluded, if particularly not filed 30 days before court, and so inadpointed out and objected to, it is not necessarily missible under the law as it then was, was held error to admit the deposition against a general to have become admissible under s. 3 of the Act objection "for lack of substance." Webb v. of 1854, No. 4, which repealed the former acts Richardson, 42 Vt. 465. requiring such filing. Armstrong v. Griswold, 28 Vt. 376.

Note. By this Act (G. S. c. 36, s. 6), notice is required to be given in all cases, except as specified in s. 7, of same chapter.

109. Fees. The statute fee of thirty-four cents allowed to a justice for "taking a deposition including caption and certificate," does not exclude a proper charge for writing it. Lockwood v. Cobb, 5 Vt. 422.

100. The testimony of a witness given by deposition may be impeached by proof of inconsistent declarations of the deponent, without first calling his attention to them; and this, whether the deposition was taken with or without notice, and whether or not the adverse party attended the taking. Downer v. Norton, 19 Vt. 338. Robinson v. Hutchinson, 31 Vt. 443. 101. A party taking a deposition at law is not obliged to exhibit it to his adversary before trial, Skinner v. Tucker, 22 Vt. 78; nor to use it in evidence, nor to permit his adversary to use it, Lord v. Bishop, 16 Vt. 110;-although the adverse party appeared at the taking and cross-examined the deponent, and although the deposition has been filed, but not once used. II. Wait v. Brewster, 31 Vt. 516. Wing v. Hall, III. 47 Vt. 182. IV.

102. A deposition, properly taken to be used before a justice, may be opened by the justice before the day set for trial, and can be used before an auditor after an appeal, although not used before the justice, nor filed in the county clerk's office. Skinner v. Tucker, 22 Vt. 78.

DIVORCE.

I.

CERTAIN CAUSES.

POWERS OF Court.

PROCESS, PROCEEDINGS AND EVIDENCE.
DECREE AND ITS EFFECT.

I. CERTAIN CAUSES.

1. Alienation. A total alienation of the affections of one or both of the parties, is not cause for a divorce. Brainard v. Brainard, Brayt. 55.

103. Depositions taken to be used in a case referred, need not be filed with the clerk before 2. Idiocy. Nor, that the wife has become being opened, but the referee may open them, an idiot and impotent. Norton v. Norton, 2 and should file them as opened by him ;-the Aik. 188.

same as to an auditor. Ladd v. Lord, 36 Vt. 194.

3. Refusal to support. A husband appro

II. POWERS OF COURT.

Chamber

priated to his own use all his wife's property, county to county, discountenanced. having none of his own, and then abandoned lain v. Chamberlain, 2 Aik. 232. her without any means of support, and refused to provide support. This continued for several months. The court granted the wife a divorce, on the ground of the husband's refus- 12. The supreme court, in the matter of ing support, having sufficient ability. Hurlburt granting divorces and annulling marriages, has v. Hurlburt, 14 Vt. 561. other powers than those which are expressly 4. In order to warrant the granting of a conferred by statute. It has all those incidental divorce to a wife, for the cause that the husband, powers which are necessary to make the exerbeing of sufficient ability to provide suitable cise of the jurisdiction conferred by the statute maintenance for her, without cause, grossly or effectual; and they are to be exercised in accordwantonly and cruelly refuses or neglects so to ance with the principles and practice of the do (G. S. c. 70, s. 19), something more, and English courts in like cases. Le Barron v. other, than the ordinary case of willful deser-Le Barron, 35 Vt. 365.. tion, or abandonment and refusal to support, 13. Personal examination. must exist. Mandigo v. Mandigo, 15 Vt. 786. a petition for annulling a marriage for the cause Jennings v. Jennings, 16 Vt. 607. of impotency, the court, upon motion, ordered 5. Willful desertion. A desertion to be a personal examination of the defendant, but "willful," such as to justify the granting of a declined to order that he answer interrogatories; divorce for "willful desertion," must be with--the question of the court's power in respect to out any sufficient cause, or any cause which the this last point, not decided. Ib. deserting party, upon probable proof, believes to be sufficient. Powell v. Powell, 29 Vt 148.

Thus, under

14. Temporary alimony. So, also, the court may order temporary alimony during the 6. Where a wife refused to go with her hus- pendency of the petition, though not prescribed band "to live with him near his relations," by statute. Ib. —herein overruling Harrington and both parties persisted in their contrary v. Harrington, 10 Vt. 505. Hazen v. Hazen, 19 resolutions;-Held, that in the absence of evi- Vt. 603. dence that this was a simulated excuse, the 15. Alteration of decree. The court court would regard it as made in good faith; under G. S. c. 70, ss. 31, 39, has power to alter and that if her refusal to go and live with him former decrees in divorce cases, at least so far in that locality, was because she believed that as to give further allowances for the support of her comfort would thereby be destroyed, or her the minor children, and to grant further alimony; health, it should not be treated as willful. Ib. and is not limited to cases where the original 7. Annulling marriage. A marriage was decree was for an annual allowance. Buckminannulled for fraud where the petitioner, a weak- ster v. Buckminster, 38 Vt. 248. minded woman and town pauper, was imposed 16. But although the court has the power, it upon by the town authorities to consent to the should be very slow, under any circumstances, marriage, and they hired the petitionee, whose to revise or alter the original decree for alimony. settlement was in another town, to go through (Reasons given for a refusal to increase the the form of marriage without afterwards intend-amount, but the petitionee was decreed to make ing to fulfil or fulfilling its obligation, and where up the original sum.) Ib. this was done only for the purpose of changing the petitioner's settlement. Barnes v. Wyethe, 28 Vt. 41.

17. The statutes of 1870, Nos. 27 and 28, do not confer upon the county court jurisdiction in matters of divorce which had their inception 8. A petition to annul a marriage, void from in the supreme court by original libel. Orders the beginning, cannot be sustained after the in such cases, after decree, must be made in the death of one of the parties, but only, in certain supreme court. Preston v. Preston, 44 Vt. 630. specified cases, where the marriage is voidable. Pingree v. Goodrich, 41 Vt. 47. s. 4. Ib. c. 70, ss. 1, 2, 5, 6.)

(G. S. c. 69, III. PROCESS, PROCEEDINGS AND EVIDENCE.

9. Nor can an administrator in any case 18. Petition and summons. Petition for bring such petition, but only some relative of divorce dismissed, because the citation was the deceased. Ib. signed by a justice of the peace, instead of a 10. It is only where a decree of nullity is judge of the court. Parker v. Parker, N. Chip. necessary in order to the proper descent or 27. distribution of an estate, that a petition for that purpose, after the death of one of the parties to the marriage, would seem to be necessary or proper. Peck, J. Ib.

19. So, also, because the citation, petition and order were served by an indifferent person not named in the deputation. Moffat v. Moffat, 10 Vt. 432.

11. Practice. The practice of transferring 20. Held, in such case, that it was not such petitions for divorce in the supreme court from a notice as the petitionee was bound to regard―

and, he not appearing, the court refused to proceed. Spafford v. Spafford, 16 Vt. 511.

30. Witness. In divorce cases, notwithstanding the witness act of 1852, neither party 21. Where the libel was not signed, and the can be a witness. Manchester v. Manchester, summons was signed by a justice;-Held, that 24 Vt. 649. (Changed by Act of 1870, No. 27, the proceedings were fatally irregular, and not where the cause alleged is intolerable severity; cured by the appearance of the libellee at the and by Act of 1876, No. 77, where the cause taking of the testimony; and that these defects alleged was willful desertion.) were not amendable. Philbrick v. Philbrick, 31. On a petition of a woman for a decree 27 Vt. 786. of nullity of marriage, on the ground that her 22. The date and issuing of the summons consent to the marriage was obtained by force and order of notice attached to a petition for a and fraud;-Held, that she was not a competent divorce were held to be the time of "bringing witness, although the pretended husband was the petition," under G. S. c. 70, s. 20, and not dead, and although the petition was brought in the date of the petition. Blain v. Blain, 45 Vt. her behalf by her guardian. Davis v. Plymouth. 538. 45 Vt. 492.

23. Specifications. Where a divorce is 32. Amicus curiæ. On a petition by a sought for adultery, the libellee is entitled to a wife for divorce, the attorney of certain creditspecification, either in the libel or separately ors of the husband who had levied on the husfiled, stating the particeps and the time and band's interest in the wife's real estate, moved place of committing the offense, to be furnished for leave to appear and oppose the petition, in before the testimony is taken. If the particeps behalf of such creditors, and for leave to be unknown, and presumptive evidence of guilt inspect the affidavits and other evidence, upon is relied upon, and a specification cannot be the suggestion that the petition was collusive given, a statement of the evidence relied upon between the husband and wife. The court will be required. Sanders v. Sanders, 25 Vt. refused both motions, but ruled that such attor713. ney, or any member of the bar, might as amicus

24. Condonation. The condonation of curio make such suggestion of collusion, and injury by husband or wife is always conditional direct the attention of the court to such parts upon kind treatment and proper conduct in of the testimony as might show collusion, or as future. In order to cancel the condonation, it might be insufficient to sustain the petition. is not necessary that the same injuries should Stearns v. Stearns, 10 Vt. 540. be repeated, nor, if of a similar character, that they should go to the former extent. v. Langdon, 25 Vt. 678.

Langdon

25. Evidence. The confession or admission alone of the party charged with adultery, has never been deemed sufficient evidence of the fact for the purpose of granting a divorce. Gould v. Gould, 2 Aik. 180.

26. On a petition for a divorce, the court admitted proof of the marriage, by reputation, where no record of the marriage could be found, and the magistrate who was reported to have solemnized the marriage was dead. Mitchell v. Mitchell, 11 Vt. 134.

IV. DECREE AND ITS EFFECT.

33. A decree in a divorce case, giving to the mother the care and custody of the children, does not discharge the father from his natural obligation to contribute reasonably to their support; and the court will enforce this duty by subsequent decree under proper circumstances. So done in Buckminster v. Buckminster, 38 Vt. 248.

34. A lease by the husband of lands held in right of his wife is terminated by a divorce a vinculo; but the tenant will be entitled to his 27. The court permitted depositions to be emblements. Gould v. Webster, 1 Tyl. 409. read, which had been taken ex parte and not 35. An estate during coverture is deterfiled for 30 days, but taken during the term-mined by a divorce a vinculo. Mattocks v. though objected to for this reason. Booth v. Stearns, 9 Vt. 326. Booth, 11 Vt. 206.

36. A woman divorced a vinculo is not a

28. On the petition of a wife for divorce competent witness against her former husband, for intolerable severity ;-Held, that the record on trial of an indictment for an offense comof a conviction of the petitionee of an assault mitted during coverture. State v. Phelps, 2 and battery upon the petitioner, was not ad- Tyl. 374. Tyler, J., dissenting. Overrules missible as evidence of the fact of the assault, State v. J. N. B., 1 Tyl. 36. but could only be proof of the fact of conviction. Quinn v. Quinn, 16 Vt. 426.

37. Presumption. A former marriage having been proved, the law will not presume a divorce in order to legalize a second marriage. Morristown v. Fairfield, 46 Vt. 33.

29. In divorce proceedings, it is not error, but is within the discretion of the court, to receive in evidence, on the trial, the record of a former adjudication, not specially pleaded. in evidence, the jurisdiction of the supreme Blain v. Blain, 45 Vt, 538.

38. Where a decree of divorce is introduced

court in granting it will be presumed, and need

not appear by the record. Huntington_v. Char- the wife, as his widow, and was set aside in lotte, 15 Vt. 46. chancery, although the husband and wife had 39. Decree of another State. Parties separated. Thayer v. Thayer, 14 Vt. 107. married in New York in 1831 and there lived 6. A person seized of lands executed a deed together for more than 30 years, when they of them to his brother, for the consideration, as removed to S, in this State, and there resided expressed, of love and affection and one dollar, some six months, when the husband left the and afterwards delivered the deed to a third wife, and she returned to New York, and was person to keep in trust for the grantee, and to there domiciled when she preferred her com- deliver to him, when called for, after the death of plaint to the supreme court of New York for a the grantor. After the grantor's death the deposdivorce, alleging for cause the adultery of the itary delivered the deed to the grantee. Held, husband in this State, while they were living that the estate did not pass, for want of a legal here and afterwards, and setting the husband delivery of the deed until the widow's right of up as having had his last known residence in dower had attached ;-and she was allowed S, but as then being of parts unknown. Notice dower therein. Ladd v. Ladd, 14 Vt. 185. of the suit was given by publication in New 7. One cannot hold, exempt from a widow's York, and by mailing a copy of the complaint right to dower, property received by him from and summons to the husband at S, whence he her deceased husband as a gratuity, or as an had removed to another town in this State. He heir, and conveyed to him to defeat such right, did not appear in the suit, and the wife obtained but may be held to account in chancery to the a decree of divorce and for alimony. Held, widow to the extent of her right. Jenny v. that said court acquired no jurisdiction of the Jenny, 24 Vt. 324. person of the husband, to render a decree for 8. Waiver of jointure, &c. By the Act alimony which bound him in this State; and, of 1864, No. 66, the probate court may allow a semble, that the decree of divorce was not waiver of a jointure, or other provision by setbinding in this State. Prosser v. Warner, 47 tlement, or will in lieu of dower, upon applicaVt. 667.

DOWER.

--

1. Of what dowable. By the probate act of 1799, the widow of a testator, though he died without issue, could not, by waiving the provisions of the will, be endowed of any more than the use for her life of one-third of the real estate. Hendrick v. Cleaveland, 2 Vt. 329.

tion of the widow made at any time before the settlement of the estate is closed. It is not necessary that she should petition for an extension of the time for an election, within the eight months named in G. S. c. 55, ss. 5, 6. Hathaway v. Hathaway, 44 Vt. 658.

9. Where by an ante-nuptial agreement a pecuniary provision was made for the wife, expressed to be in lieu and discharge of her dower, and she covenanted therein not to claim any share of her husband's estate otherwise ;Held, the widow not having waived such provision within the time limited by the statute and according to its terms, that the probate court had no power to decree to her either 3. When estate vests. Under the stat- dower, or homestead, although such provision utes of this State, the widow's right of dower was wholly inadequate to her support. S. C., becomes a present vested estate on the decease 46 Vt. 234.

2. The widow of a mortgagee is not entitled to dower in the mortgaged estate, before foreclosure. Reed v. Shepley, 6 Vt. 602.

of the husband, which does not depend on the 10. Contribution towards incumbrance. contingency of the dower being assigned, or set One to whom dower has been assigned in an out. Dummerston v. Newfane, 37 Vt. 9. Grant equity of redemption, may maintain a bill in v. Parham, 15 Vt. 649. Gorham v. Daniels, chancery for contribution to the payment of the 23 Vt. 600, 611.

4. "She may continue to occupy the same," with the heirs, before assignment (G. S. c. 55, s. 10), and so has a right of entry, and may convey her right. Ib.

incumbrance, before having paid it ;-the debt having become due, and the estate in danger. Danforth v. Smith, 23 Vt. 247.

11. In apportioning the incumbrance between the dowress and the reversioner, it is not competent for the court of chancery to prescribe any rule for repairs of the estate. Ib.

5. Conveyance to defeat dower. A conveyance made by a husband, in anticipation of his death, of all his property to his children, 12. I do not think the American courts without valuable consideration, and with intent have generally required any tenant for life, certo defeat his wife of her dower and her share, as widow, of his personal estate, securing to himself at the same time the possession and use of the property during his life at a nominal rent, was held to be in fraud of the claims of

tainly not a dowress in an equity of redemption, to keep down the interest of the mortgage. I see no reason why the dowress should. Redfield, J. Ib.

13, Jurisdiction of probate court. The