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attachment in Vermont by a Vermont creditor 216. But this local rule of policy is univerof the mortgagor, though the property was in sal, in its application in Vermont, to all perthe mortgagor's possession when attached, and sonal property actually within this State, though the mortgage had not been foreclosed. Jones v. in the hands of a third person at the time of the Taylor, 30 Vt. 42. transfer, and though the transfer, made in another State, be valid in that State without change of possession. Rice v. Courtis, 32 Vt. 460.

215. A like decision, upon like facts, as to a chattel mortgage executed in New Hampshire, although the mortgagor, by consent of the Martin v. Potter, 34 Vt. 87. mortgagee, brought the property into this State, 217. The requirement as to a change of and held it in his possession and use for seven possession is no part of the contract. Ib. Cobb months, when it was attached as his property v. Buswell, 37 Vt. 337.

by a Vermont creditor.

Vt. 337.

Cobb v. Buswell, 37

NAMES.

N.

9. Aaron I. Boge was named as a proprietor in a town charter. In the proprietors' records,

1. The county court ruled that the name Aaron J. Boge in one instance, and Aaron Jordan N. B., Jr., and N. B. did not, prima facie, Bogue in another, was named as a proprietor. indicate the same person. Held erroneous, No other person of the name of Boge or Bogue where the question of identity was not other-was named in the charter. The name of the wise raised, nor made a point at the trial. Allen plaintiff's ancestor was Aaron Jordan Bogue, v. Ogden, 12 Vt. 9. formerly spelled by him and the family Boge, 2. The addition of "junior" is in law no but afterwards changed by usage to Bogue. part of a man's name, but is used as merely Held, that the names were prima facie identidescriptive of the person, and is assumed, cal, and that the plaintiff's ancestor was prima applied, and discarded, at will. Kellogg, J., in facie the person named in the charter. Bogue Prentiss v. Blake, 34 Vt. 465. Brainard v. v. Bigelow, 29 Vt. 179. Stilphen, 6 Vt. 9. Keith v. Ware, Ib. 680. 10. Upon the question of the identity of a Buake v. Tucker, 12 Vt. 39. Isaacs v. Wiley, particular person with the one named in a town 12 Vt. 677. Jameson v. Isaacs, 12 Vt. 611. charter;-Held, that the fact that such person did not reside in the same place where the other proprietors are described as residing, is not legal proof of want of identity. Ib.

3. A deed from E G, of H, to E G, Jr., of H, was presumed to be from father to son. Cross v. Martin, 46 Vt. 14.

4. An initial letter between the christian and surname is no part of the name, and the omission of it is not a misnomer or variance. Alexander v. Wilmarth, 2 Aik. 413.

11. Identity of name indicates identity of person-how far. Dummerston v. Jamaica, 5 Vt. 399.

12. Parties in successive deeds, constituting 5. An initial letter is not regarded as any a chain of title, of the same name, are prepart of a man's name; especially where one sumptively the same persons. So held, although name is given in full. Walbridge v. Kibbee, 20 the place of residence was set up differently in Vt. 543. Isaacs v. Wiley, 12 Vt. 674. Allen v. the two deeds, but twenty years intervened Taylor, 26 Vt. 599; and see Blood v. Crandall, between the dates of the two deeds. 28 Vt. 396. Martin, 46 Vt. 14.

name.

66

Cross v.

6. Barnabas D. Balch was sued, by that 13. The grantees in a mortgage deed were name, upon a recognizance of "Barney D. described as Morse & Houghton of BakersBalch." Held, that there was no variance- field." Held, in an action of ejectment thereon, Barney and Barnabas being used for the same that evidence was admissible that the plaintiffs, McGregor v. Balch, 17 Vt. 562. John Morse and Joel Houghton, had lately been 7. In an indictment for passing a counter-in partnership at Bakersfield under the firm name feit bank bill, in setting out the tenor, the name of Morse & Houghton, and that the mortgage Thompson was stated as Thompson. Held to be note, of the same date with the mortgage deed, idem sonans and no variance. State v. Wheeler, was executed to them as such partners; and 35 Vt. 261. that, upon such proof, the grantees were sufficiently designated. Morse v. Carpenter, 19 Vt. 613.

8. So, as to the name Heremon for Harriman, in an indictment for forgery. State v. Bean, 19 Vt. 530.

14. A deed described the land conveyed as

in "Lington" in the county of Addison. Held, results in detriment, and no excuse is given. that this name was so like the name Lincoln, a In the latter case, the liability follows as mattown in that county, and so unlike the name of ter of law, and there is nothing for the jury any other town in the county, that there was but a question of damages. Briggs v. Taylor, no error in admitting the deed, in connection 28 Vt. 180.

with other evidence showing the situation and 7. Where a carriage, wagons and sleighs, circumstances at the time, as tending to show not past use, were attached and allowed by the that the lot in question, in Lincoln, was con- officer to remain during the winter in the open veyed by that deed. Armstrong v. Colby, 47 fields, wholly exposed to the weather, for Vt. 359. which no excuse was offered except the diffi

15. An action lies on a judgment in which culty of finding a place for them under cover; the christian name of the defendant is not-Held, that it was error to submit to the jury given the identity of the party being averred. the question whether the officer had exercised Newcomb v. Peck, 17 Vt. 302. proper care; that they should have been 16. Where, in describing a person, some instructed that the officer was liable to the other than his legal name is given, it is a suf- owner for the damage thereby done to the propficient answer to an objection taken thereto, erty. A judge is never bound to submit to a that he is generally known by the name given. jury questions of fact resulting uniformly and St. Johnsbury v. Goodenough, 44 Vt. 662. inevitably from the course of nature, as that such carriages will be injured, more or less, by exposure to the weather during the whole winter; nor to submit to a jury the propriety of such a course, when it is perfectly notorious that all prudent men conduct their own affairs differently. This uniformity of the course of nature, or the conduct of business, becomes a rule of law. Ib.

NEGLIGENCE.

1. What is. In any business involving the personal safety and lives of others, due care, reasonable diligence, is nothing less than the most watchful care and the most active diligence; anything short of this is negligence, and carelessness. Poland, C. J., in Hadley v. Cross, 34 Vt. 586.

2. One may act in good faith, and still be guilty of the grossest, the most flagrant negligence, and want of care. Redfield, C. J., in Lincoln v. Buckmaster, 32 Vt. 662.

8. The question of negligence is not always a matter of law where there is no conflict in the testimony as to the particular facts. If it still rests upon discretion, experience and judgment to determine whether the acts complained of were a departure from the rules and usages which prudent and careful men have established in the conduct of similar business, under 3. Whether a question of law, or of fact. similar circumstances, it is a question of fact Whether a sheriff has used reasonable diligence for the jury-as, whether it was negligence in endeavoring to arrest a debtor upon execu- for a peddler to leave his horse unhitched in tion, is a mixed question of law and fact. Hop- the highway under given circumstances. Vinkinson v. Holmes, 18 Vt. 18. ton v. Schwab, 32 Vt. 612.

4. Whether certain facts should be consid- 9. The only case in this State where the ered by the jury as constituting negligence, court have taken it upon them to decide that a Redfield, J., says: I am not prepared to say particular course of conduct was, or was not, that it could be determined, as a question of according to the requirements of common prulaw, that any given proposition of fact, how-dence, is the case of Briggs v. Taylor, 28 Vt. ever absurd, was incapable of proof, unless it 180. Poland, C. J., in Hill v. New Haven, 37 were a simple proposition contrary to the laws Vt. 510. of nature. Taylor v. Day, 16 Vt. 566.

HIGHWAYS, 164 et seq. 208.

5. Questions of negligence, where the law 10. The court refused to instruct the jury has settled no rule of diligence, can never be that a certain course of conduct of the plaintiff determined as matter of law, except where the in driving upon a highway was, as matter of testimony is all one way. If there is no testi- law, negligence, Held, no error. Durgin v. mony tending to show negligence, then it may Danville, 47 Vt. 95. be determined by the court that there was no negligence; or, if the testimony is uncontradicted and makes a clear case of negligence, it becomes matter of law only. Redfield, C. J., in Barber v. Essex, 27 Vt. 62.

11. Plaintiff and defendant were farmers. Plaintiff went to defendant late in the evening to buy six bushels of oats. Defendant had no oats which he wished to sell, but, yielding to the plaintiff's importunity and necessities, conDefendant kept his

6. The question of negligence may, in some sented to sell the oats. cases, be taken from the jury-as, where there granary constantly locked. He went some disis no testimony tending to show it; or where tance and got the key and went with the plaina given course of conduct is admitted which tiff to the oats lying in bulk on the open floor

above. He stepped back for his measure, and, [examine it before attempting to cross it, unless while thus absent, the plaintiff walked across he had been informed that it was unsafe, or had the floor in another direction, in the dark, and reason to distrust or suspect its safety. Held, fell through an aperture in the floor, and that the defendants were entitled to a charge in received a severe injury. On these facts found the terms of their request, and that the omisby a referee;-Held, that the defendant was sion so to charge was error. (Comments on the not liable. Pierce v. Whitcomb, 48 Vt. 127. terms "ordinary care and prudence," as being 12. Contributory negligence. The ques- liable to misconstruction.) Folsom v. Underhill, tion of contributory negligence is one of fact 36 Vt. 591. These terms are calculated to misfor the jury, and not of law for the court. lead juries. Briggs v. Taylor, 28 Vt. 184. Allen v. Hancock, 16 Vt. 230. Rice v. Montpelier, 19 Vt. 470. Hill v. New Haven, 37 Vt. 501.

18. Proximate-Remote. In cases of injuries occurring through the mutual negligence of the parties, if the negligence of the plaintiff 13. In case for negligence, judgment was was the proximate cause, i. e., occurring at the reversed for the refusal of the court, upon time, and that of the defendant was the remote request, to charge (at least) that if the injury cause, i. e., consisting of other matter than would not have happened but for want of ordi- what occurred at the time of the injury, the nary care and diligence in the plaintiff, the plaintiff cannot recover. So, if the negligence jury must find for the defendant. Washburn v. Tracy, 2 D. Chip. 128.

of each was the proximate cause, or of each was the remote cause, both being of the same 14. If an injury is in whole or in part character and degree, there can be no recovery. owing to the plaintiff's want of ordinary care But if the negligence of the defendant be proxior prudence, he cannot recover. Briggs v. mate and that of the plaintiff remote, he may Guilford, 8 Vt. 264. 24 Vt. 496. 27 Vt. 466. recover, although not wholly without fault 15. In all cases where a party claims to himself, on the ground that the defendant was have suffered damage by the carelessness or bound to exercise reasonable care to avoid the negligence of another, it is a rule nearly if not injury, though the plaintiff had been negligent entirely universal, that if the negligence or in exposing himself to it. Isham, J., in Trow carelessness of the person injured contributed v. Vt. Central R. Co., 24 Vt. 487. 27 Vt. 458; in any material degree to the production of the and see Robinson v. Cone, 22 Vt. 213. injury complained of, he cannot recover,-as, 19. Rule as to children, idiots, &c. In in actions against towns for damages sustained an action by a child of four years old for an through the insufficiencies of highways. Poland, injury received by being run over in the highC. J., in Hill v. New Haven, 37 Vt. 507.

16. In an action for negligence, where the evidence tended to show that the plaintiff exercised some control over the manner of doing the act complained of as negligently done;Held to be error, to submit the case to the jury simply upon the negligence of the defendant, without charging as to the legal effect of the plaintiff's negligence as contributory. Willard v. Pinard, 44 Vt. 34.

way, through the defendant's negligent driving of his team, the court charged that in determining the amount of care and prudence to be required of the plaintiff, the jury need not measure it by the rule that would be applicable to an adult, but might consider that he was a child, about four years of age, from whom a less degree of care and prudence might be expected. Held correct, and that all which can be required of a plaintiff in such case is care and

17. Terms—“Ordinary care," &c. In prudence equal to his capacity. Robinson v. an action against a town for an injury received Cone. by the breaking down of a bridge, the defend- 20. Although a child, or idiot, or lunatic, ants requested the court to charge that the may be in a highway through the fault or negplaintiff's conduct in driving upon the bridge, ligence of his parents or keeper, and so be under the circumstances, must have been that improperly there, yet, if he is hurt by the negliof a prudent and careful man to entitle him to gence of the defendant, he is not precluded recover, and that if he had reasonable ground from his redress. If one know that such person to apprehend that the bridge was unsafe for is in the highway, or on a railway, he is bound such a team and load, the driving upon the to a proportionate degree of watchfulness, and bridge with such a team and load was such an what would be but ordinary neglect, in regard act of imprudence and want of care as to pre- to one whom the defendant supposed to be of vent a recovery. The court declined so to full age and capacity, would be gross neglect as instruct the jury, but charged that if the plain- to a child, or one known to be incapable of tiff did not exercise ordinary care and prudence escaping danger. Ib. 39 Vt. 459. in attempting to cross the bridge, and this con- 21. In order that the negligence of another tributed to the injury, he could not recover; should be imputed to the plaintiff, such relabut that he had a right to presume the bridge tion must exist between them as to impose safe for a proper load, and was not bound to1 upon such person the duty of care towards the

plaintiff, in the matter in question. Glidden bond, unless he failed in his former trial through v. Reading, 38 Vt. 52. some fraud of the defendant. Perkins v. Dana, In an action 19 Vt. 589.

22.

Surgeon-Physician.

against a surgeon for improperly setting and 3. New trials will be granted in pauper dressing the plaintiff's broken arm;-Held, cases, as in other cases, upon proper showing. that a showing on the part of the defendant Kirby v. Waterford, 14 Vt. 414. that the ultimate damage or injury to the arm 4. As a general rule, in order to sustain a resulted in part from the subsequent misman-petition for a new trial, it must appear, not agement and negligence of those having charge only that injustice has been done on the trial, of the plaintiff, did not touch the cause or right but that there has been no want of diligence on of action, but only the measure and amount of the part of the petitioner; and in no case will damages; that the contributory negligence, a new trial be granted, unless there is a reasonwhich precludes a right of recovery, is such as able certainty that the subject matter on which enters into the creation of the cause of action, the application is founded will, on another and not merely supervenes upon it, by way of trial, produce a different result. Noyes v. aggravating the damaging results. Wilmot v. Spaulding, 27 Vt. 420. Howard, 39 Vt. 447.

5. On a petition for a new trial, the appar23. Where a surgeon, through lack of proper ent justice or injustice of the verdict is to be skill, in setting a broken limb, bandaged the considered, and, to warrant the granting of it, limb too tightly;—Held, that an action therefor it should appear that justice would be likely to was not defeated by the fact that another sur-be served by having the case tried again. Gilgeon, who took the case, failed, through want man v. Nichols, 42 Vt. 313. Beckwith v. Middleof proper skill, to loosen the bandages and dress sex, 20 Vt. 593. Bullock v. Beach, 3 Vt. 73. the limb, although if he had so done the ulti- Dodge v. Kendall, 4 Vt. 31. The court should mate injury might have been prevented. Hath- feel assured that injustice has been done, and orn v. Richmond, 48 Vt. 557. that a new trial would, in all probability, lead

24. Physicians and surgeons are bound to to a different result. Middletown v. Adams, 13 have and exercise ordinary skill, and nothing| Vt. 286. Briggs v. Gleason, 27 Vt. 116. State more, unless they profess more-that is, such v. Camp, 23 Vt. 551. skill as doctors in the same general neighborhood, in the same general lines of practice, ordinarily have and exercise in like cases. Ib.

As to actionable negligence in particular cases, see appropriate titles, -as RAILROAD COMPANY, HIGHWAYS, ACTION, &c.

NEW TRIAL.

I. UPON WHAT GROUNDS Granted.
1. In general.

2. Fault of, or in respect to, jury.
3. Error of court.

4. Surprise on trial.

5. Newly discovered evidence.
6. Statute provisions.

II. PROCEEDINGS AND PRACTICE.

I. UPON WHAT GROUNDS GRANTED.

1. In general.

6. A new trial will not be granted on petition, to enable the party to avail himself of a defense which, though legal, is clearly inequitable, and where no injustice has been done. McConnell v. Strong, 11 Vt. 280.

7. That the amount in controversy is small, is a sufficient reason for refusing a new trial. Bullock v. Beach, 3 Vt. 73.

8. That the statute of limitations did not bar a new suit in ejectment was recognized as a reason for refusing a new trial to the plaintiff. Smith v. Hubbard, 1 Tyl. 142.

9. The refusal of the county court to grant a new trial, though not a bar conclusively, should have very considerable weight with the supreme court, in the exercise of a sound discretion, against granting a new trial for the same cause. Briggs v. Gleason, 27 Vt. 114; and see Hill v. New Haven, 37 Vt. 512.

10. A petition for a new trial is an appeal to the judicial discretion of the court, and, in the exercise of that discretion, such court is supreme, and its proceedings are not subject to be revised, or controlled by writ of error, exceptions, certiorari, or appeal, since the dis1. On motion or petition. The court will cretionary power of one court cannot be exernot grant a new trial where the equity is cised by another. But for an error in law comstrongly in favor of the verdict, although what mitted in such case, the proceedings may be was stated as the law, and on which the verdict revised. Houghton v. Slack, 10 Vt. 520. Chase was founded, is doubtful. Rogers v. Page, v. Davis, 7 Vt. 476. Myers v. Brownell, 2 Aik. Brayt. 169. 407. Minkler v. Minkler, 16 Vt. 193. Wheat

2. The court should never grant a new trial ley v. Waldo, 36 Vt. 237. Sheldon v. Perkins, in favor of the plaintiff in a suit upon a jail- 37 Vt. 550.

11. Questions of law decided on exceptions the defendant offered affidavits of the defendcannot be again raised on a petition for a new ant and the other counsel of the defendant, that trial. McConnell v. Strong, 11 Vt. 280. Beards- such fact was unknown to them. These the ley v. Gordon, 3 Vt. 324. county court refused to receive. Held, that 12. On exceptions - Harmless error. this was matter of discretion, and not subject Although there may have been error in the to exceptions. Ib.

trial below, yet if from the whole case it clearly 20. Expression of opinion. It is good appears that on another trial the same verdict, cause for a new trial that one of the jury had, or the same judgment, must inevitably be ren- before the trial, expressed his opinion upon the dered, a new trial will not be granted. Wal- merits in favor of the successful party. Demworth v. Readsboro, 24 Vt. 252. Brayt. 168. ing v. Hurlbut, 2 D. Chip. 45. French v. Smith, 1 Aik. 43. 17 Vt. 499. 19 Vt. 210. 4 Vt. 363; and see State v. Godfrey, Brayt. 170, State v. Clark, 42 Vt. 629.

13. If, upon the whole record, the court can see that a correct result followed and that 21. A new trial was refused, when the the judgment was right, it will not be reversed alleged reason was that a juror had, previous for immaterial error. Farmers & Mechanics to the trial, formed and expressed an opinion,— v. Flint, 17 Vt. 508. Fitch v. Peckham, 16 Vt. there being but the oath of one witness to the 150. fact against that of the juror, and the alleged 14. A new trial refused on exceptions, opinion being upon a question of law;—and it where a record, imperfect in the county court, appearing that the juror was not conscious of had been perfected before hearing on the ex- having formed or expressed any opinion. ceptions. Paine v. Webster, 1 Vt. 101. Dixon Thrall v. Lincoln, 28 Vt. 356. v. Parmelee, 2 Vt. 190.

2. Fault of, or in respect to, jury.

22. Separation of jury. A motion for a new trial, for that the jury, after the case was submitted, separated before agreeing on their verdict, and after agreeing separated without 15. Qualifications. Where a juror was sealing up their verdict, and returned it not a freeholder when his name was put into the sealed up, was held as addressed to the discretown jury-box, but was not a freeholder at the tion of the county court, and not subject to time of the trial;-Held, that this was not cause revision. Edgell v. Bennett, 7 Vt. 534. for setting aside the verdict, but should have 23. On a motion to set aside a verdict bebeen objected in challenge. Orcutt v. Carpen-cause the jury, after the charge and after they ter, 1 Tyl. 250. had retired for consultation and before agreeing

16. Under a statute, then in force, requir-upon their verdict, separated without an order ing that jurors should be freeholders;-Held, of the court, and, without being under the that want of such qualification in one of the charge of an officer, went to their dinners;jurors was ground for a new trial, when that Held, that G. S. c. 30, s. 34, on this subject was fact was not known to the moving party at the purely directory; that this was not such an trial;-that this was a mistrial. (Bennett J., irregularity as, per se and as matter of law, dissenting.) Briggs v. Georgia, 15 Vt. 61. 30 Vt. 474. (Changed by act of Nov. 12, 1842, G. S. c. 15, s. 13.)

avoided the verdict; but the motion was addressed to the discretion of the court that tried the cause,-the inquiry involving matters of fact as to whether the jury might have been tampered with, &c.; and that the decision was not revisable by the supreme court, no error in law being shown. Downer v. Baxter, 30 Vt. 467.

17. By mistake of the sheriff in the name of a juror drawn from the box, he summoned another person whose name was not in the box, but who was legally competent to act as a juror, and he was sworn and sat in the cause. This irregularity was unknown to the parties 24. Verdict-Irregularity. A new trial and to the court, till after the verdict had been was refused in ejectment, when the jury by delivered and the panel discharged, and no mistake returned a verdict for the whole land, fraud or collusion was suggested. Held, that whereas a small part was proved to be in a the verdict should not, for this cause, be set third person, but the damages recovered were aside. Mann v. Fairlee, 44 Vt. 672. only nominal. Pomeroy v. Taylor, Brayt. 169. 18. Oath. The fact that a juror in a civil 25. It is no cause for setting aside a verdict, cause is not sworn is an irregularity which may that, in ascertaining the damages, each juror be waived, like a known cause of challenge to marked a sum and the whole amount was a juror. The county court refused to set aside divided by 12, when they afterwards delibera verdict, for such cause, upon the affidavit ated and returned a different sum than such only of one of the defendant's counsel that the quotient. Cheney v. Holgate, Brayt. 171. fact was unknown to him. Held correct. 26. A verdict assented to in court in usual Scott v. Moore, 41 Vt. 205. form by the jury, was refused to be set aside 19. After this decision of the county court, lon the ground that the foreman had promised

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