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because he had given direction So to Carry On the business as not to allow the refuse from the works to fall into the river, he Was not liable On the indictment for a nuiSance caused by the acts of his Servants; that he must have given to his servants or agents all the authority that Was incident to the Carrying On of the business; and that it was necessary to prove only that the nuisance was caused in the carrying on of the Works of the quarry. In this opinion Judge Shee concurred. Judge Blackburn said it was only necessary to say that where a person maintains works by his capital, and employs Servants, and SO carries on the works as in fact to cause a nuisance to a private right, for Which an action would lie, if the Same nuisance inflicts an injury upon the public right the remedy for which would be by indictment, the evidence which would maintain the action WOuld als0 Support the indictment. This was not regarded as any infringement upon the general rule that a master is not criminally anSWerable for the act of his agent. The rule was discharged. In Brown v. Foot, 66 L. T. (N.S.) 649, the appellant, a Seller of milk, Was ConVicted in the court below for violating a statute creating a penalty for the sale of adulterated milk to a purchaser to his prejudice. The milk sold Was adulterated, Without the COgnizance of the master, by his servant, employed in the general business of selling milk for the master. Affirming the Conviction, it was said by Judge Wills that the master was bound, not only not to sell an adulterated article himself, but to take care that other people do not sell it for him; that, if he does not take that care, he breaks the act of Parliament; that, as the Servant WaS acting within his orders in selling, what he did wrongly in the scope of his employment Was a matter for Which the maSter was liable, because it was his business to see that within the scope of the delegated authority the Servant carried out the act of Parliament, just as much as he did himself. To the same effect are Rex v. Medley, 6 C. & P. 292, 25 E. C. L. 439, and Parker V. Allen [1899] 1 Q. B. D. 20. In State v. Gilmore, 80 Vt. 514, 68 Atl. 658, 16 L. R. A. (N. S.) 786, the statute prohibiting a licensee from selling or furnishing intoxicating liquor to a minor for his own use or for the use of any other person was involved. The servant of the respondent, a first-class licensee, contrary to his principal’s instructions not to sell to minorS, SOld intoxicating liquor to a minor, taking pay therefor. The liquor sold was taken from the respondent's stock of liquors, kept by him for Sale under his license. It was held that the respondent could not delegate the conduct of the business to an agent, With instruction not to Sell

to minors and himself escape liability if the agent violates the law in this regard; that the offense was complete when such Sale Was made under and by Virtue of the license, and in the line of the respondent's business as licensee, and it was immaterial Whether the act Was done by the licensee himself or by his servant; that When he engaged in the business he assumed all the risk of his employés Violating the conditions Of his license, and their acts Were his acts, When done in carrying on the licensed buslneSS. Under these authorities the question of intention is immaterial. The Statute looks at and punishes the act constituting the offense, Without regard to the intention of the person by or for Whom the distribution was made. A person may lawfully distribute Such articleS as are named in the Statute, if he observes its provisions. If he employs an agent for that purpose, it is his duty to know that the law regulating the manner of distribution be not violated, and in case of its violation by such agent in the performance of the duties of his agency the principal is not absolved from responsibility by showing that in the manner of the Work the violative acts Were contrary to his previous general instructions. It follows that, notwithstanding the distribution alleged was in fact by the respondent's agent, and contrary to his general instruction against delivering to children, yet, as it was done by the agent in distributing Samples furnished him by the respondent for that purpose, acting under the respondent's orders, and in the prosecution of the respondent's business, for which he was employed, the distribution Was caused by the respondent, Within the meaning of the statute, and he is answerable therefor. Judgment that there is no error in the proceedings, and that the respondent take nothing by his exceptions. Let execution be

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3. DEEDs (§ 114*)—CoNSTRUCTION. In 1883 E. conveyed a farm in L. to defendant, containing about 95 acres, subject to an annual rent to a school corporation, and in 1890 another conveyed to defendant a 3% acre tract adjoining the land conveyed by the E. deed, which was subject to an annual rent of 63 cents, and in 1896 defendant gave a bank a mortgage on all of the realty in L., describing it as the farm “owned and formerly occupied” by him, containing 100 acres more or less, and bounding it by the lands of the adjoining owners; the 3%-acre tract being a part of the farm mortgaged. The mortgage was foreclosed, and the bank thereafter conveyed the land to plaintiffs, describing it as the farm “formerly owned by" defendant, the description with reference to the adjoining lands correctly describing the whole farm, which the bank purchased under the mortgage foreclosure, including the 3% acres; but the deed further stated that the land was subject to an annual rent to the school corporation, and that the premises were the same as conveyed to it by the E. deed of 1883, and referred to that deed for a more particular description. In 1908 defendant paid to the school corporation the annual rental of 63 cents on the 3%-acre tract. , Held, that the reference to the E. deed for a more particular description was in law a general description, so that the particular description would prevail, and the deed to plaintiffs be construed as including the 3%-acre tract.

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HASELTON, J. This was an action of trespass on the freehold. The case was Submitted to the county court on an agreed Statement of factS, and On Such Statement judgment was rendered pro forma for the defendant. The plaintiff excepted.

In 1883 Mary B. G. Eddy conveyed to Stephen Houghton a certain farm in Londonderry, containing, according to the description in the deed, about 95 acres, Subject to an annual rent to the LOndonderry Grammar School Corporation. In 1890 Frank P. Fuller conveyed to the same grantee a triangular piece of land of about 3% acres adjoining the land conveyed by the Eddy deed. This triangular piece of land was subject to an annual rent of 63 cents. In 1896 Houghton and his Wife gave the Factory Point National Bank a mortgage of all their real estate in Londonderry, describing it as the farm “owned and formerly occupied” by them, containing 100 acres, more or leSS, and bounding it by the lands of adjoining owners. The 3%-acre piece was one corner of the farm SO mortgaged. This mortgage Was foreclosed by decree which became absolute December 11, 1900. The description in the decree followed the mortgage. July 26, 1901, the Factory Point National Bank gave the plaintiffs a deed, which the plaintiffs claim was a conveyance of the whole farm covered by the mortgage and decree, but which, according to the defendants' claim, did not convey the 3%-acre piece, which is the piece to which this litigation relates. The deed from the national bank to the plaintiffs designated the land conveyed as the farm “formerly owned by Stephen Houghton,” and, as we have seen, the 3%-acre piece had constituted a part of that farm. The deed bounded the farm on the north, south, east, and West by lands of others, and this part of the description correctly describes the whole farm, which the bank got under the decree in its favor, and is not a correct deScription if the premises conveyed by the bank to the defendants do not include the 3%-acre piece. The deed then goes on to say that the premises are subject to an annual rental payable to the Londonderry Grammar School Corporation, and that they are the same premises conveyed to Stephen Houghton by the Eddy deed of 1883, and to that deed and the 1'eCOrd thereof reference is made for more particular description.

[1, 2] It will be seen that the parts of the description are incOnSistent, and the queStion is: What are the controlling elements? While the reference to a former deed is in terms for a more particular description, it is what the law terms a general description. Cummings v. Black, 65 Vt. 76, 25 Atl. 906. In construing the descriptive part of the deed, the intention of the parties, when it can be gathered therefrom, is to govern, and the general rule is stated in the case just cited in the following language: “In ascertaining such intention, when the particular and the general description do not coincide, effect must be given to the particular description, such as is expressed by courses and distances, by permanent muniments, by lot and range, and by the adjoining surrounding lands. It is less probable that the parties would make an unnoticed mistake in the particular than in the general description.” [3] We find nothing in this case to indicate that the general rule should not apply; but, on the contrary, we find several things Which indicate that it Should. If this national bank had intended to reserve from its deed a part of the farm) which it had acquired by foreclosure, it is difficult to understand how it should have described the farm by reference entirely to the lands of others. In describing the land as the farm formerly owned by Stephen Houghton, the grantor WOuld naturally have had reference to the farm as it was at the times when it took its mortgage deed from Houghton and when it Obtained its decree Of foreclosure. It ap|pears that down to 1908 Houghton paid to the agent for the Londonderry Grammar School Corporation the annual rental of 63 cents On the 31%-acre piece of land. But this fact does not aid the defendants; for beyond all question he had been foreclosed of his interest in the land, and there is nothing in the Statement of facts to suggest that, at any time after conveying the Houghton farm to the plaintiffs, the bank in any way asserted, or suggested, or recognized that it had not conveyed the entire farm. The principles of construction herein applied are well Settled in the state. Spiller V. Scribner, 36 Wt. 245; Hibbard v. Hurlburt, 10 Vt. 173; Morrow v. Willard, 30 Vt. 118; Cummings v. Black, 65 Vt. 76, 25 Atl. 906; Bundy V. Morgan, 45 Vt. 46; Wilder v. Davenport, 58 Vt. 642, 5 Atl. 753; Chapman v. Longworth, 71 Vt. 228, 44 Atl. 352. [4] If, as we do not think, the intention of the parties to the deed is not resolved by the considerations already suggested, then resort should be had to the principle that, as between two constructions equally natural and reasonable, that should be adopted which is most favorable to the grantee. Mills V. Catlin, 22 Vt. 98. [5, 6] The plaintiffs treat the question of the COnStruction Of the deed to them from the national bank as the only question in the case; but the defendants raise a question as to whether it appears that the defendant Houghton had ever lieen dispossessed of the land. We have seen that he was foreclosed

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. series & Rep'r Indexes,

of all his interest in the land in 1900; and the agreed statement recites that during the Summer of 1908—that is, nearly eight years later—the defendants, Without leave of the plaintiffs, entered upon the land in question and cut and moved therefrom hay of the Value of $7. Whether or not this question of possession was spoken of below does not appear; but we think the statement that the defendants, in the -summer of 1908, “entered upon” the land, imports that at the time of such entry they were without possession. So the plaintiffs, having title, and at least the right of immediate possession, were entitled to maintain this action of treSpaSS. Harris v. Haynes, 34 Vt. 220; Chesley v. Brockway, 34 Vt. 550; Robinson V. Douglass, 2 Aikens, 364, 368; Langdon V. Templeton, 66 Vt. 173, 181, 28 Atl. 866. [7] There must be a reversal of the pro forma judgment in favor of the defendants, and, since the agreed statement of facts gives the value of the hay cut, and refers to no other element of damage to the plaintiffs, We have an approximately accurate basis on which to render judgment for the plaintiffs. Accordingly, the pro forma judgment is reversed, and judgment is rendered for the plaintiffs, to recover of the defendants the sum of $7 and their costs.


(Supreme Court of Vermont. Bennington. Oct. 9, 1911.)

1. IIUSBAND AND WIFE (§ 9”)—WIFE's REALTY—OWNERSHIP. Where at a wife's marriage she was seised of an estate of inheritance in certain described real estate, her husband by virtue of his marital right became Seised of the freehold, and was entitled to the possession and to the rents and profits during their joint lives. | Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 30–37; Dec. Dig. § 9.*]

2. IIUSBAND AND WIFE (§ 207*) – WIFE's I{EALTY-INJURIES-ACTIONS. In an action for damages to the real property of a wife during coverture, the husband may sue alone or the wife may be joined, but the action is improperly brought in the name of the wife alone. [Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. §§ 756–759; Dec. Dig. § 207.*] 3. PARTIES ($ 75*)–PROPER PARTIES–PLEA IN ABATEMENT. The objection that an action for injuries to the real property of a married woman was improperly brought in her name alone, and not in the name of her husband or in their joint names, could only be pleaded in abatement, and was not available in bar or under the general issue. [Ed. Note.—For other cases, see Parties, Cent. Dig. §§ 115, 116; Dec. Dig. § 75.*] 4. ADJOINING LANDOWNERs (§ 7*)—INJURY TO ADJOINING PROPERTY—EVIDENCE. In an action for injuries to plaintiff's house by boards from piles on defendant's adjoining property being blown against the same, evidence held to warrant a finding of negligence in de

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6. ADJOINING LANDownERS (§ 7*)—CARE REQUIRED–PILING LUMBER. Defendant while entitled to pile lumber on its own land was bound to so pile or secure the same as to guard against its being blown on to and against plaintiff’s adjoining property. [Ed. Note.—For other cases, see Adjoining #". Cent. Dig. §§ 53–59; Dec. Dig. 7. ADJOINING LANDOWNERS (§ 7*)—INJURY TO ADJOINING LAND-SNOWSLIDE. Where snow was permitted to slide from defendant's roof on to plaintiff's adjoining premises and against her house, to her injury, and defendant, with notice, did nothing to prevent it, it was prima facie negligent, and liable for the injury sustained. [Ed. Note.—For other cases, see Adjoining Landowners, Dec. Dig. $ 7.*]

8. NUISANCE (§ 42*)—ACTION-NOTICE OFCONTINUANCE–GRANTEE. The grantee of an estate is not liable for an injury resulting from the continuance of a nuisance erected thereon before he came into the estate until he had notice to remove it. [Ed. Note.—For other cases, see Nuisance, Cent. Dig. §§ 101–103; Dec. Dig. § 42.*]

9. NUISANCE (§ 42*) - ACTION - NOTICE TO ABATE. No particular form of notice or request for abatement of a nuisance is required to charge a grantee with liability for the continuance thereof; any notice informing the grantee of the existence of the nuisance and of the desire of the objector to have it removed being suffiCient. [Ed. Note.—For other cases, see Nuisance, Cent. Dig. §§ 101–103; Dec. Dig. § 42.*] 10. NUISANCE (§ 49*) – NoTICE – EVIDENCE QUESTION FOR JURY. In an action for injury to real property by the existence of a nuisance on defendant's premises, evidence held to warant a finding of notice to defendant of the existence of the nuisance. [Ed. Note.—For other cases, see Nuisance, Dec. Dig. § 49.*] 11. ADJ or NING LANDown ERs (§ 7*)—DAMAGEs TO ADJOINING PROPERTY—REPAIR—INSTRUCTIONS. Where plaintiff's property was injured by snow and lumber falling and being blown from defendant's adjoining property against plaintiff's house, and plaintiff's husband made re

pairs on her behalf and at her expense, necessi-.

tated by the injuries, an instruction that the

jury should not include in any damages to which

they might find plaintiff entitled any sum for

labor performed by the husband was properly

refused. [Ed. Note.—For other cases, see Adjoining

£w". Cent. Dig. §§ 53–59; Dec. Dig. .*]


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12. ADJOINING LANDown ERs ($ 7”) – INJURY TO ADJOINING PROPERTY - SNOW FROM ROOF. Where snow was permitted to accumulate on defendant's roof and to fall on plaintiff's adjoining property, a request to charge that plaintiff could not recover for any damage by reason of the accumulation on the ground of snow Which fell from defendant's roof was properly refused; plaintiff being entitled to recover nominal damages therefor, at least, as the practice, if long enough continued, would give a prescriptive right. [Ed. Note.—For other cases, see Adjoining #w". Cent. Dig. §§ 53–59; Dec. Dig.

13. Ev1DENCE (§ 5*)—JUDICIAL NoTICE—MATTERS OF GENERAL KNOWLEDGE. The court will take judicial notice as a matter of common knowledge that roof guards placed just above the eaves of a roof to prevent snow from sliding off are in effective use.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 4; Dec. Dig. § 5.*]

14, ADJOINING LANDownERS ($ 7*)—INJURIES TO ADJOINING PROPERTY-INSTRUCTIONS. Where, in an action for trespass, there was other evidence from which the law would imply malice on the part of defendant, their request to charge that, if defendant's officers did not come to look at plaintiff's property when requested to do so, such fact was not evidence of willfulness, Wantonness, or malice, was properly refused. [Ed. Note.—For other cases, see Adjoining #w". Cent. Dig. §§ 53–59; Dec. Dig.


Where plaintiff claimed malice in the maintenance of a nuisance by defendant in permitting snow to slide from its storehouses on to plaintiff's property, evidence that since the bringing of the suit snow had slid from the storehouse against plaintiff’s house was admisWillfulness.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 404, 405; Dec. Dig. § 136.*]

16. CoRPORATIONS (§ 493*) – MISCONDUCT OF OFFICERS–PUNITIVE DAMAGES. Where defendant corporation maintained a Storehouse adjoining plaintiff's property, and its president, treasurer, and manager, after notice, willfully permitted snow and ice to collect on the roof and slide therefrom on to and against plaintiff's house, the corporation was liable for punitive damages. [Ed. Note.—For other cases, see Corporations, Gent. Dig. § 1904; Dec. Dig. § 493.*]

17. EVIDENCE (§ 473*)—OPINION.—AMoUNT OF DAMAGES. Plaintiff's house was injured by boards from defendant’s lumber piles being blown against it, Smashing the windows and jamming and splitting the clapboards, and breaking a hole or holes in the roof of the porch from the side of the house. Held, that plaintiff's husband was properly permitted to give his opinion as to the amount of damages to the house under the rule that Where a Witness has means of personal observation and the facts which led his mind to a conclusion are incapable of being detailed and described, SO as to enable anyone but himself to form an intelligent conclusion from them, the witness may add his opinion. [Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2220–2233; Dec. Dig. § 473.*]


In an action for injuries to plaintiff's

house by boards piled on defendant's property

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes

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WATSON, J. One ground assigned in the defendant’s motion for a Verdict, also in its motion to set aside the Verdict, is that from the undisputed evidence the plaintiff at the time the grievances complained of Were committed WaS and hitherto has been and now is a feme covert, living with her husband on the premises alleged to have been damaged by the negligence of the defendant, of Which premises the husband was and is seized in the right of his wife, but has not been joined as a party plaintiff in this action. [1] At the time of the plaintiff's marriage in 1903, she was seised of an estate of inheritance in the premises described in the declaration, and upon the marriage the husband by Virtue of his marital rights became seized of the freehold; and the law is, as claimed by the defendant, that this entitled the husband to the poSSeSSiOn Of the land and to the rents and profits during their joint lives. Laird v. Perry, 74 Vt. 454, 52 Atl. 1040, 59 L. R. A. 340. [2] Yet the conclusion drawn in defendant's brief that the action should have been brought in the husband's name alone does not follow. This suit is merely for damages to the real property of the wife during coverture, and for such purpose the husband may sue alone, or the Wife may be joined. In Armstrong and Wife V. Colby, 47 Vt. 359, the action was trespass quare clausum fregit. On motion in arrest of judgment it was said that the gist of the cause of action set forth in each count of the declaration is the breaking and entering a close alleged to be the plaintiffs' close; that the plaintiffs, though husband and wife, might jointly have a close. and this allegation is in effect that the one

in question was theirs jointly; and that, if SO, it Was herS as much as it Was his, and a cause of action for an injury to it would survive to her if she survived him, and they might Sue jointly for such injury. In Smith V. Fitzgerald, 59 Vt. 451, 9 Atl. 604, the action was trespass quare clausum fregit brought by the husband alone for cutting trees on land of which the plaintiff and his Wife Were in possession in the right of the wife; his marital rights being his only interest in the realty. The case was heard on referee's report. One question presented was whether the action could be maintained in the name of the husband alone for cutting trees On the Wife's land during coverture. Holding that the action was properly brought, the Court said the law Was Well settled that an action of trespass for injuries to the Wife's land during COVerture Will Survive to the husband on the death of the wife, and if the wife survive any action for a tort committed to her real estate during coverture will survive to her; and that the principle deduced from the cases cited in the opinion was “that in all cases for injuries done to the wife's land during coverture, where the right of action will survive to the wife upon the death of the husband, and to the husband upon the death of the wife, the husband may Sue alone or join with his wife at his election.” The same general principle has been held applicable Where the husband Was Seised of a house for life in the right of his wife, and leased it for years to a tenant who burned it (Cro. Eliz. 461); where the action was on the case for cutting down trees, the lops of which were reserved to the wife for her life (Tregmiel v. Rieve, Cro. Car. 437); where the action was on the case for stopping a way to the land of the wife, as the wrong was done to the wife, the husband having the close in her right (Baker v. Brereman, Cro. Car. 419); Where the action was brought by the dippers at Tunbridge Wells against the defendant for exercising the business of a dipper, not being duly appointed, and approved according to a private statute (Weller v. Baker, 2 Wils. 414, 423). In this last case it Was Said that Wherever the Wife is the meritorious cause she may join in the action. To the same effect are, also, Abbott V. Blofield, Cro. Jac. 644; Rose v. Bowl:er, 1 H. Bl. 109. In the Case before uS the Wife'S interest in the real property injured does not give the right to sue in her own name alone. Yet, to be effective, advantage thereof should have been taken in the manner pointed Out in the law of pleadings. [3] The rule is in tort actions at least that Where the feme Was legally interested before or during coverture in the subject-matter of the action and might properly join in a Suit With her husband, but SueS alone, the coverture can only be pleaded in abatement. It cannot be pleaded in bar, or given in evi

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