Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1875-08-18

continued or disposed Of by agreement. We give
an abstr ct Of the principal cases
Jacob A. Spear u.s. Ephraim Thayer This was
a suit Of trespass on the freehold The plaintiff
and defendant are brothers-in-law, and own adj
joining pastures in Roxbury Tho plaintiff claims
that In the sumner OF 1870 the defendants sheep
and cattle broke into his pasture and ate up tho
feed The case was tried In the county court dur
ing the March term of 1873, and the result was q
verdict for the defendant In that trial Dana ).
Morse, OF ndoph, the defendants son-n-aw,
testified very strongly in relation to the condition
Of that part OF the fence between the two pastures
which the plaintiff was bound TO keep In repair,
his evidence tending to show that the cattle got
through by the neglect Of the plaintiff to keep 1t
in repair at a certain point. The plaintiff, at the
next session Of the Supreme Court, pcttioned for |
a new trial on the ground that Morse's testimony |
was false, and that having been taken by surprise
at the trial in the county court, they were then |
unable to show It's falsity. The hearing took |
place at the present term aud great amount Of
testimony was heard upon both sides Judge Ross
announced the decision that the petition be dis |
missed with costs Judge Barrett then spoke as
follows Judge Ross being unwell this morning, |
| viii say that we are very strongly impressed |
that he lied by concert Of the defendant, Thayer
We are very strongly impressed in that respect
But assuming that all to be true that Ihayer |
ought 10 be punished by having this case tried |
once again and being beaten in it, still that is not
all that appertains to this subject The law has |
some rights here and public interests are entitled
to regard. This is a small case, involving about
one hundred dollars for breaking through into
0 N...aN Al g..H H.aa ID
history Of this state presents the names Of this
plaintiff and this defendant, as foremost In the
list Of litigants and the very locality in which
they live is not without It's odor This idea Of
their being any surprise in this case, in view Of
the parties and the locality is ludicrous to persons
conyersant with their Unexpectedly ludicrous.
Everybody who knows the parties would be sur
prised II this case was not charged from beginning
to end, from top to bottom, with perjury. There
Is another thing to be said about H. II the plain
tif WAS taken by surprise on account Of the evil
dence Of this Morse, he should have taken that
time To manifest his surprise instead Of thinking
he would take care Of him as well as he could
during the progress Of the trial and trust 10 luck
Well, the luck was against him when he submit
ted the ease to the jury, and we think that IL is
pretty late under these circumstances for the
plaintiff to say that he was surprised he could
have stopped right there. II the plaintiff thought
that Morses testimony was likely to get credit
with the jury, he could have appealed to the court
and said, That fellow il swearing To all sorts Of
fasehOod, u our own personal knowledge We
know that ii is all untrue didn't suppose any
body could be procured To swear 10 such things we
want this thing stopped and We will prepare
ourselves 10 meet this sort Of evidence The
court would have allowed q continuance But
when you come round to the case as il really
stands, laying the fellows evidence ont Of the
case it would seem upon the rest Of the testimony
to be q fair question Of debate with the jury as
TO whether in point OF fact, Ephnm Thayers cat
tie did not get through the plaintiff fence where
it was defective upon the testimony NJ the other
witnesses in the case We don't believe that the
cattle got through twenty-four ortwonty five rods
above that old road the cattle couldn't get there
unless they were lifted mp by a derrick and held
there till they could get over We don't believe
that they got through there But from the evil
dence OF other witnesses, they might have got
through at other places along there where
the evidence tends to show that the plaintiff
fence was defective And notwithstanding what
is produced here as to the perjury Of Morse it
would seem to he very doubtful whether a jury
would not find that the cattle got over on to the
plaintiffs premises through his own defective
fence. make these remarks because Judge Ross /
isn't well this morning" Messrs ~ /. Boydcn |
WIN. F. Dillingham; and C. II Heath for plaintiff |
Messrs. George NJ. Fisk and John W RowoU for |
defendant
State rs. Philip Preston The respondent was
indicted in 1873 for selling cider without authority,
at his grocery in Montpelier Ie filed a general
demurrer 10 the indictment insisting that the pc
nal clause in the eighteenth section Of chapter
nnety-four Of the general statutes did not apply
10 the sale Of cider, unless sold 10 an habitnal
drunkard, upon the ground that the words, " last
proviso Of This section, in the penal clause, did
not extend back as to include the sale Of cider
" in any yicinalling house, tavern grocery shop
or cellar, or other place Of public resort, 20 As
to have the penalty attach unless the sale was
made to an habtual drunkard The demurrer
was over uled by the county court, Judge Peck
presiding and exceptions allowed to the respond
ent by consent iudgmen, Of guilty Of four
single offences was entered and a fine Of $40 |
and costs imposed Judge Barrett delivered the
decision Of the supreme court, and sustained that
Of the county court, Mr. VIM. p Dillingham;
States attorney for the prosecution: M,ssrs
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