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plaint on which the defendant was acquitted. , having been adjudged insufficient, he exceptIt is to be noted that the Constitution does ed, and, without obtaining leave to plead over not prohibit a second jeopardy for the same if his exceptions should be overruled, he act, or group of acts, but only "for the same brought them directly to the law court be offense." Dec. of Rights, art. 1, § 8. The fore the trial was closed. Under the statute acts and the offense they constitute are dif- it must be held that by taking the course ferent things, and the same acts may con- he did he waived whatever right he may have stitute more than one offense, and also had to plead over when his dilatory plea was different offenses, subjecting the actor to as overruled, and that, having thus elected to many punishments as the offenses his acts abide by that plea, he must fall with it. constitute.

State v. Inness, 53 Me. 536; Furbish v. RobThus a person by the same acts, or group ertson, 67 Me. 35, page 38; Smith v. Hunt, 91 of acts, may violate the statute against sell- | Me. 572, 40 Atl. 698. ing liquors; also the statute against being a Exceptions overruled. common seller of intoxicating liquors; also Judgment for the state. that against keeping a drinking house and tippling shop; and also that against maintaining a common nuisance. If he be charg.

GOFF V. RHODE ISLAND CO. ed and convicted, or acquitted, of the violation of one of these statutes, he has been put

(Supreme Court of Rhode Island. Feb. 1,

1909.) in jeopardy only for that one offense, and not for the offense of violating any of the and Bristol Counties; Willard 'B. Tanner,

Exceptions from Superior Court, Providence other statutes. State v. Coombs, 32 Me. 529; Judge. State v. Maher, 35 Me. 225; State v. Inness, Action by Horace E. Goff against the Rhode 53 Me. 536. In the opinion of the court in Island Company. Verdict for plaintiff. Dethis last case are cited many instances where fendant excepted. Remitted for new trial. it was held that a person may be punished man, of counsel), for plaintiff. Joseph C. Swee

Waterman, Curran & Hunt (Lewis A. Watermore than once for the same act where the ney,' for defendant. act constitutes more than one offense.

We refer the reader to that opinion for the cases. PER CURIAM. The evidence presented by

The offense of assault and battery and the the record in this case as to the negligence of offense of unlawful assembly or riot are dif-defendant as to bring the case within the rule

the defendant so preponderates in behalf of the ferent offenses. Neither included the other. laid down in Riley v. Rhode Island Co., 29 R. A person may commit either without commit. I. 143, 71 Atl. 592, which was decided after this

case was tried in the superior court. ting the other. Nevertheless the same acts

Inasmuch as further evidence may be produc may sometimes constitute both offenses; but, ed on another trial, the cause will be remitted when they do, the offenses are still different to the superior court for a new trial. though the acts are the same, and the perpetrator of the acts may be punished twice,

(82 Vt. 34) once for each offense. State v. Inness, 53 Me. 536, at page 537; Hurd v. State, 2 Root

COREVO V. HOLMAN et al. (Conn.) 186; U. 8. v. Peaco, Fed. Cas. No.(Supreme Court of Vermont. Orange. Jan. 16, 16,018; Freeland v. People, 16 Ill. 380. We

1909.) are aware that in some states the courts hold | WATERS AND WATER COURSES (8 107*) otherwise, but we think the above is the law

RIGHTS AS APPURTENANCES-INSTRUCTIONS. of this state. It follows that the exceptions or other buildings may be an appurtenance, and

The charge that water running in a house must be overruled.

that water running in premises so situated and In the case of State v. Inness, 53 Me. 536, under such circumstances that it belongs there where the court overruled the exceptions to belongs to the building or premises conveyed, sustaining a demurrer to a plea of former passes with the building or premises in the deed,

under the head of appurtenances, but it must be jeopardy, final judgment was ordered for the so used in connection with the building or premstate after full consideration of the question ises, and under such circumstances that it conwhether the judgment should be final or only for the purpose for which it is used, that it be.

stitutes a part of such property so conveyed, respondeas ouster. The decision was based longs there, is appurtenant thereto-is erroneous, on Rev. St. 1857, c. 77, § 28, now Rev. St. as calculated to mislead the jury to believe that 1903, c. 79, 56. “When a dilatory plea is

to be an appurtenance passing under a deed

the water must have been running into the overruled and exceptions taken, the court buildings or on the premises deeded in such cir shall proceed and close the trial, and the ac- cumstances as to belong to them, and must bave tion shall then be continued and marked been used in connection with them so as to con

stitute a part of the property, thereby excluding ‘law,'” etc. The defendant's plea of former the idea that the right to take water from a jeopardy was a dilatory plea, since, over- spring could be an appurtenance if the water ruled, the judgment, but for the statute cited, was carried from a watering trough, into which would be simply respondeas ouster. He

it ran from the spring, to the buildings and

premises in pails. pleaded his dilatory plea alone, without ob

[Ed. Note.-For other cases, see Waters and taining leave to plead double, and, his plea Water Courses, Dec. Dig. S '107.*]

Exceptions from Orange County Court; E., in a deed conveying the property with wbich L. Waterman, Judge.

it is thus connected. The plaintiff does Trespass quare clausum by Joseph Corevo not controvert this proposition in argument, against Elbridge Holman and another. Ver- but, on the contrary, says there is nothing dict and judgment for plaintiff. Defendant in the charge indicating that an appurtenance George Trask brings exceptions. Reversed must be connected with the house or buildand remanded.

ing; that there was no claim on the part of Argued before ROWELL, C. J., and TY. defendant Trask that at the time he took his LER, MUNSON, and WATSON, JJ.

deed water from this spring was running to N. L. Boyden and R. M. Harvey, for plain right to go to the spring to get water or to

his house or land, but only that he had a tiff. Cowles & Moulton and David S. Conant, the watering trough on a third person's land; for defendant Trask.

and that the charge of the court rightly un

derstood means that the right to go to the WATSON, J. This action was brought to spring or trough for water may be an ape recover for the alleged trespass of defendant purtenance. The charge in this respect, to in laying a pipe into a certain spring claim- which exception was taken, was as follows: ed by the plaintiff, which was situated on “Water running in a house or other building land adjoining that of defendant, but be- may be an appurtenance. Running water in longing to a third person. As to defendant premises so situated and under such cirTrask the verdict was guilty, and on his ex- cumstances that it belongs there belongs to ceptions the case is here. The plaintiff pro- the building or premises conveyed, passes duced a deed from one Sault and wife to with the building or premises in the deed, bim, conveying the farm on which he resided under the head of appurtenances, but it must and containing the clause: "With the right be so used in connection with the buildings to a spring on the J. Seymour place, mean- or premises, and under such circumstances ing the spring where water is now taken." that it constitutes a part of such property so It was conceded by both sides that this is conveyed, for the purpose for which it is the spring bere in question. Defendant in- used, that it belongs there, is appurtenant troduced' evidence tending to show that for thereto." Then continuing the charge, the upwards of 60 years the occupants of the court said: “The water was not in fact runpremises owned by his father under wbose ning in the old logs when these deeds were authority he acted when he did the acts com- made, according to the situation as I re plained of had taken all their water for member it. When it did run, it did not run household purposes from a watering trough across or upon the land conveyed which on the roadside, situated eight or ten rods was the Trask place, and was in no way from the house. This watering trough was directly connected with the premises. Take supplied with water from the spring in ques. the testimony in view of what I have said, tion by means of "pump logs." The decd and say whether the water or line of logs of the house and land to the defendant's fa- or the spring, or any right therein, was apther included the appurtenances. This con- purtenant to the premises conveyed. If it veyance was before the deed from Sault to was not, then it did not pass as an appurthe plaintiff. Evidence was introduced by tenant to those deeds." both parties in respect to which party re- We think that portion of the charge expaired the spring, pipe line, and trough. But cepted to was well calculated to mislead the defendant's evidence tended to show that jury into believing that, in order to be an bis father had used the water ever since he appurtenance passing under the deeds, the had purchased the premises and so under water must have been running in the builda claim of right, and that the defendant had ings or on the premises in such circumstances kept the spring in repair, replaced the logs as to belong to the building or premises by a pipe, and in 1906 laid a pipe from the deeded, and must have been used in contrough to his house.

nection with them so as to constitute a part A prescriptive right to take water from of the property, thereby excluding the idea this spring for the necessary use and benefit that the right to take water from the spring of the defendant's house and premises could could be an appurtenance if the water was be acquired by taking water from the wa-carried from the watering trough to the de tering trough for that purpose in pails unin- fendants' buildings and premises in pails, terruptedly under a claim of right for the and the tendency of what the court said to requisite period, as well as by taking water the jury immediately thereafter was to therefrom by pipe running to the house and strengthen such belief. This was error. premises, the only difference being in the It is unnecessary to consider the other method of conveying the water from the exceptions argued, as they are not likely to watering trough, or by both taken together arise on another trial. In succession, and pass as an appurtenance Judgment reversed and cause remanded.

(81 Vt. 549)

side thereof, as hereinafter stated. The ALEXANDER & HUTCHINSON v. CITY petitioners, being dissatisfied with the action OF MONTPELIER.

of the council, appealed therefrom to the (Supreme Court of Vermont. Washington. Jan. county court, when commissioners were ap16, 1909.)

pointed, who resurveyed the street and re1. JUDGMENT (8 493*)-COLLATERAL ATTACK-ported that a retaining wall had been built. GROUNDS—WANT OF JURISDICTION.

as aforesaid, and was in the street as laid A judgment, void for want of jurisdiction may be collaterally impeached by a party out and surveyed by them, and improperly lothereto.

cated, and should be placed further back on [Ed. Note.-For other cases, see Judgment, the bank, and onto the land of one BlanchCent. Dig. $ 931; Dec. Dig. § 493.*]

ard. The report was accepted, and the street 2. JUDGMENT (8 506*)-COLLATERAL ATTACK, established as surveyed by the commissionGROUNDS-IRREGULARITIES. A judgment open to objection because of After this the city moved the wall some at

ers, with the usual orders as to time, etc. irregularities in the exercise of jurisdiction cannot be collaterally impeached by a party thereto. the easterly end, but none of the rest of it,

[Ed. Note.-For other cases, see Judgment, and it still stands within the surveyed limits Cent. Dig. $ 919; Dec. Dig. $ 506.*]

of the street, and that is the nonperformance 3. MUNICIPAL CORPORATIONS (8 649*)—ESTAB- of the order complained of. The court ac

LISJIMENT OF STREET-COUNTY COURT-JU- cepted the report of the referee in this case, RISDICTION.

The jurisdiction of the county court in adjudged, pro forma, that the city had not laying out and establishing highways in cities is performed said order, and fined it so much, statutory.

to be expended in making the street according (Ed. Note. For other cases, see Municipal to the report of the commissioners, under the Corporations, Cent. Dig. § 1423; Dec. Dig. 8 direction of a commissioner to be appointed 649.*]


by that court.


The city claims that the county court had JURISDICTION.

no authority to order the wall to be moved The county court has no jurisdiction, on out of the surveyed limits of the highway as appeal from the determination of the council of it did, and consequently that that part of its a city, ordering the resurvey, on application, of a street, and grading it and building a retain- judgment is void. The petitioners claim that, ing wall on the side thereof, to order the city to as the city was a party to the proceedings in move the wall on it, determining that the wall which the judgment was rendered, it is bound was in the street as resurveyed by commissioners thereby as long as the judgment stands, and appointed by it.

[Ed. Note.-For other cases, see Municipal cannot impeach it collaterally, and relies for Corporations, Cent. Dig. g 1423; Dec. Dig. 8 this on State v. Vernon, 25 Vt. 244. But that 619.*]

case is not in point, for it did not go upon Exceptions from Washington County

the ground of want of jurisdiction, but only, Court; Alfred A. Hall, Judge.

at most, of irregularity of its exercise, and Application by Alexander & Hutchinson therefore the judgment could not be impeachagainst the City of Montpelier for the im. ed collaterally by a party thereto. But a position of a fine on the city for nonperform- judgment void for want of jurisdiction may ance of an order of the county court. There be impeached by a party thereto in any way, was a judgment imposing a fine rendered on and at any time, for it is no judgment in law. the report of a referee and report of commis.

So the question is whether the court had sioners in the original case, and the city ex- authority to order the wall to be moved. If cepts. Reversed, and judgment for defend it had, it was statutory, for that is its only ant.

source of authority in laying out and estab

lishing highways; and, on the question here Geo. W. Wing, for plaintiffs. Frederick P. involved, the statute is essentially the same Carleton, for defendant.

as it was in 1852, when the order was made,

the nonperformance of which gave rise to ROWELL, C. J. This is an application the case of State v. Williston, 31 Vt. 153. under what is now section 3908 of the Public That was an indictment against four towns Statutes, to fine the city of Montpelier for on this very statute for not building a bridge not performing an order of the county court across Onion river according to the order of as to making a highway therein called Wilder the county court. The commissioners recomstreet. The city council laid out and survey- mended in their report that a bridge should ed said street at one time, but gave the pe- be built upon a plan and in the manner there titioners, abutting landowners and dwellers in set forth, and specified with great par. thereon, no notice of a hearing in the mat- ticularity how it should be done, the material ter, and no record of the survey was pre- to be used, the workmanship of its construcserved. So the petitioners applied to the tion, and the like. The court accepted the council to resurvey the street, and to make report, established the bridge, and ordered it a record thereof, which it did, and proceed to be built as specified in the report. This ed to grade the street, and to cut it down in court said that the duty of laying out, esplaces, and to build a wall on the northerly | tablishing, building, and keeping in repair


highways and bridges is imposed upon towns | 4. MORTGAGES (8 284*)-TRANSFER OF PROPERthrough the agency of their officers, and that


ITY TO GRANTOR. the sole object of the Legislature in con

A grantee assumed to pay a mortgage on ferring jurisdiction of the subject in certain the land executed by the grantor. The mortcases on the county court is to compel towns gagee sued the grantor for the interest due on to discharge that duty; but that the court the debt, and sued to foreclose the mortgage.

The decree of foreclosure became absolute, and has no jurisdiction over the manner in which the mortgagee took possession. The land was that duty shall be performed, except as to then worth more than the amount of the de. grading hills; that all that towns are re

Subsequently the grantor settled the suit quired to do is to make a bighway that is against him by paying to the mortgagee a sum

less than the amount of interest due at the comsafe and convenient for public travel, and mencement of the suit and the costs. Held, that such as the public necessity requires, but that the act of the mortgagee in taking possession the form, material, and manner of construc- on the decree becoming absolute operated as a tion are left to the judgment and discretion and the grantee was liable to the grantor only

purchase of the land in satisfaction of the debt of the town on which the duty is imposed, the for the amount expended in the suit against him only limitation being that it shall be done so for the interest. as to be safe and sufficient and convenient

[Ed. Note.-For other cases, see Mortgages, for public use; that if the court had a right

Dec. Dig. § 281.*] to control towns in this respect, they would Exceptions from Washington County Court; be bound to perform their orders strictly, Alfred A. Hall, Judge. and if any insufficiency arose by reason of Action by D. A. Perry against W. H. Ward such performance, it would be unjust to make and another. There was a judgment for de them responsible for it. It was held, there. fendants, and plaintiff excepts. Reversed and fore, that the county court had no power to rendered. order the bridge to be constructed upon the

John W. Gordon and J. Ward Carver, for plan submitted, nor to be built in any par. plaintiff. M. M. Gordon and A. A. Sargent, ticular manner, nor to prescribe the material for defendants. nor the workmansh and that consequently its order to that extent was void. This case ROWELL, C. J. On February 26, 1902, one is not distinguishable from that in legal ef- Sprague sold and conveyed' a farın to the fect, and therefore it must be held that the plaintiff, who gave back a mortgage thereon order in question to the extent here involved to secure his note for $2,750 for part of the is void for want of jurisdiction in the court price, payable at five years date, with interto make it.

est annually. Six months later the plaintiff Judgment reversed, and judgment for the sold and conveyed the farm to the defenddefendant to recover its costs.

ants, who, in the deed to them, assumed and

agreed to pay the mortgage debt as part of (82 Vt. 1)

the price. Subsequently the defendants sold PERRY V. WARD et al.

and conveyed the farm to Carr and wife, who (Supreme Court of Vermont. Washington. in like manner assumed and agreed to pay Jan. 16, 1909.)

said debt as a part of the price; and they 1. MORTGAGES ($ 283*)-TRANSFER OF PROPER- sold and conveyed it to Curtis and wife in

TY-ASSUMPTION OF INCUMBRANCE-LIABIL- the same way. After all this, and on April ITY-GRANTOR AS SURETY.

A grantee who accepts a deed reciting his 24, 1905, Sprague sued the plaintiff to the agreement to assume and pay as a part of the June term of the county court for the interest price a mortgage made hy the grantor and who then due on the note. He also brought a pegoes into possession under the deed, is primarily tition to the same term against Curtis and liable for the mortgage debt, and the grantor is wife and a subsequent mortgagee to forea surety and may sue the grantee on his failure to pay the interest on the debt, whether the close said mortgage, and obtained a decree grancor has paid it or not.

limiting by agreement between the parties [Ed. Note.-For other cases, see Mortgages, thereto, the time of redemption as to part of Cent. Dig. $$ 756, 757 ; Dec. Dig. § 283.* ] the note to December 1, 1905, which not being 2. INDEMNITY (8 15*)-PLEADING.

paid the decree became absolute, and Sprague In all cases of conditions to indemnify and took possession of the farm, and remained in save harmless or to discharge and acquit plaintiff from any damage by reason of a particular possession until he sold it. When he took thing, the proper plea is non damnificatus, and, possession, the farm was worth more than if there be any damage, plaintiff must set it up the amount of his decree. After that and on by reply. (El. Note.--For other cases, see Indemnity, suit against him by paying to Sprague $216.80

May 14, 1906, the plaintiff settled Sprague's Cent. Dig. $ 42; Dec. Dig. 8 15.* ] 3. INDEMNITY (8 15*)-PLEADING.

damages, which was less than the amount of The plea of non damnificatus cannot be interest due on the note at the commencement pleaded when the condition is to discharge and of the suit, and $65.76 as and for the costs of acquit plaintiff from a bond or other particular foreclosure and the motion to shorten time, thing, and defendant must set forth affirmative making in all $282.56, which he seeks to rely the special manner of performance.

(Ed. Note.--For other cases, see Indemnity, cover here, together with $24.15 that he laid Cent. Dig. $ 42; Dec. Dig. & 15.* ]

out and expended for legal services and his •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

own expenses in and about that suit. On, tiff had no right to settle with Sprague and the facts found the court rendered judgment pay him as he did and charge it to the defor the defendants, to which the plaintiff ex- fendants, for Sprague had already been paid cepted. The plaintiff claims certain other in full. But the plaintiff was damnified by exceptions that the court disallowed as not that suit to the amount of $24.15 that he laid being properly taken. But, as counsel say out and expended in and about the same as they regard it immaterial whether they were aforesaid, for which the defendants were to properly taken or not, we do not consider the blame, as they should have paid as they matter.

agreed. The plaintiff, therefore, is entitled The defendants, by taking their deed from to recover that sum, with interest thereon the plaintiff and going into possession under from May 14, 1906, when he paid it. it, thereby assumed and agreed to pay Judgment reversed, and judgment for the Sprague's mortgage as part of the purchase plaintiff accordingly. price, whereby as between the plaintiff and the defendants the defendants became pri

(81 Vt. 517) marily liable for the payment of the mortgage, and the plaintiff became their surety PORTER V. EVERTS' ESTATE. therefor, and, according to some of the cases, (Supreme Court of Vermont. Rutland. Jan. the land became the primary fund out of

14, 1909.) which payment was to be made, while accord- 1. CONTRACTS ($ 22*)-ACCEPTANCE OF OFFER ing to others the purchase money reserved by

-FORM. the grantees became the primary fund. Wells municated by conduct.

The acceptance of a proposal may be com. v. Tucker, 57 Vt. 223, Green v. Kelley, 64 Vt.

[Ed. Note. For other cases, see Contracts, 309, 24 Atl. 133, Field v. Hamilton, 45 Vt. 35, Cent. Dig. 88 67-93, 104-108; Dec. Dig. $ 22.*] Comstock v. Drohan, 71 N. Y. 9, and Drury 2.CONTRACTS (22*)-ACCEPTANCE OF OFFERV. Holden, 121 Ill. 130, 13 N. E. 547, are of SUFFICIENCY. the first class. Rice v. Sanders, 152 Mass. have paid from her estate to plaintiff money if

Under a written proposal by decedent to 108, 24 N. E. 1079, 8 L. R. A. 315, 23 Am. St. she should refrain from certain acts, etc., it Rep. 804, and Torrey y. Thayer, 37 N. J. is immaterial to plaintiff's rights whether she Law, 339, are of the second class. See an ex- accepted it in writing, where it appears that tended note on this whole subject in 78 Am. plaintiff's conduct conformed to the proposal, and Dec. 72-90.

that decedent knew that plaintiff had under

taken to perform on her part. As the defendants agreed to pay, they were [Ed. Note.-For other cases, see Contracts, bound to do more than to indemnify and Cent. Dig. 88 67-93, 104-108; Dec. Dig. $ 22.*j save harmless. They were bound to pay; 3. WILLS (8 88*)-WILL DISTINGUISHED FROM and so, when the interest fell due for which CONTRACT-INSTRUMENT CONSTRUED. Sprague sued the plaintiff, the defendants ing in the first paragraph that, if plaintiff should

Decedent executed an instrument providshould have paid it, and, not having done so, refrain from certain acts, decedent would have the plaintiff could have sued them and recor- paid from her estate to plaintiff a specified sum. ered the amount of it, whether he had paid The second paragraph provides that, “if she it or not. This is so by all the cases. Locke promise all this, I agree that this sum shall be

paid to her next after my funeral expenses, and v. Homer, 131 Mass. 93, 41 Am. Rep. 199; ! that at the same time and in the same way shall Rice v. Sanders, 152 Mass. 108, 24 N. E. 1079, be paid to her a sum sufficient to pay the three 8 L. R. A. 315, 23 Am. St. Rep. 804, above mortgages on her land." The third paragraph

recited that decedent would leave furniture, etc., cited. And it is well shown by the rules with plaintiff to dispose of in her own family of pleading. Thus in all cases of conditions and wherever decedent might direct. The fourth to indemnify and save harmless the proper paragraph provided: “I leave this as an obliplea is non damnificatus, and, if there be any gation to whomsoever shall settle my estate,

etc. Held, that the first two paragraphs imposdamage, the plaintiff must reply it. But this ed a contract obligation upon decedent's estate, plea cannot be pleaded when the condition is and that, while the instrument is of a twofold to discharge and acquit the plaintiff from character, the third paragraph being in the nasuch a bond or other particular thing, for the point of division, is at the end of the second

ture of an attempted testamentary disposition, there the defendant must set forth affirma- paragraph, making the provision for the pay. tively the special manner of performance. ment of the mortgages part of the contract obIt is otherwise, however, when the condition ligation. is to discharge and acquit the plaintiff from

[Ed. Note. For other cases, see Wills, Dec.

Dig. $ 88.*] any damage by reason of such a bond or other particular thing, for that is in effect the Exceptions from Rutland County Court; same as a condition to indemnify and save John H. Watson, Judge. harmless. 1 Saund. 116, note (1). But when Action by Jennie L. Porter against the Sprague's decree of foreclosure became abso- estate of Frances P. Everts; James A. Merlute, and he took possession thereunder, it rill, executor. From the judgment, plaintiff operated in law as a purchase of the farm by brings exceptions. Reversed and rendered. him in satisfaction of his mortgage debt; the Argued before ROWELL, C. and value of the farm then being more than the TYLER, HASELTON, POWERS, and amount of his decree. After that the plain-1 MILES, JJ.


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