The Vermont watchman. [volume] (Montpelier, Vt.) 1883-1911, 1886-05-19

far as malice is concerned, IL is the malice
of the least malicious; and claiming that the
improper relations of the plaintiff and said
Wheeler j. provoked said assault. Plain
tiffs' counsel, on argument, claimed that
the law compelled the plaintiff to bring the
suit jointly against the husband and wife,
and that as the law compelled the plaintiff to
bring said suit against both defendants
she ought not to be deprived of any rights
she may have in and about said assault.
Heath x Willard and Fay for defendants;
o. l.. Hoyt and G. w Wing for plaintiff.
Gilbert French Executor ct al Us. Town of
Barre.-This was road petition under Secs.
2,940, 2,941, 2,942 and 2,943 of the Revised
Laws. The report of the commissioner was
fled at this term and accepted by the court,
and the highway therein described accepted.
To the whole order of the court accepting
the report and establishing the highway the
petitioners excepted. The report of the
commissioners is made part of the excep-
tions and exhibits the ground of exception.
The commissioners found and reported the
following facts: 1--WE find that the public
good and the necessity and convenience of
individuals require highway in substan-
TALLY the same location chosen by the Sc
lectmen, and that a highway two rods wide
will be adequate for the travel at that
place" In the argument of the case before
the supreme court the petitioners counsel
claimed that highway two rods wide could
not be laid inasmuch as Barre village is not
incorporated. 1t appeared in the argument,
and was so found in the report, that a por-
ton of the property owned by the Metho-
dist Episcopal church, over which portion
of the highway runs, was not enclosed and
was not fenced along said street. One Cur
rier owned land on the northerly side of the
street and easterly of said church lot, and
there were others owning land adjacent to
said church lot. The Lanes occupied their
lot as a residence, and all passing between
their residence and the highway was over
the church lot and easterly of the church.
There was certain deed from parties to
the stewards of the Methodist church, in
which deed was the following clause: Said
deed to be used by said society as a public
common, the same as the other land around
their church, no sheds or other buildings to
be erected on said land" The stewards of
the Methodist church executed to Edwin and
Alfred Lane writing giving them the right
of passing over their grounds whenever they
chose, as formerly, meaning to give the said
Lanes the same privileges they have hereto
fore enjoyed. The petitioners contested the
case on two grounds: First, that the COM
missioners and court had no right to lay out
public open highway, as Barre village was
not an incorporated village; and did the
commissioners have the right to take judi
cial notice that Barre village was not an
Incorporated village? Second, that the
damages were assessed at too small a sum,
and that fact depended upon the report
whether a right of way existed over the
| land of the church or not; that the fact of the
| right of way depended upon the votes or lack
of votes of the quarterly conference, two
thirds of whose members are required to
concur in the sale of lands, which they had
never done. The defendant contended that
the commissioners could not take judicial
notice of the private acts of the legislature
which must be proved, the same as any
other fact, and claimed that having allowed
the said Lanes and the public generally to
| me- Sai1 for tbon antx
the society are bound by the acts of theil
stewards, and have acquiesced in and
adopted the same, and are bound by it. The
defendant also claimed that the town had 6
right to lay out road two rods wide, as
recommended in said report of the com
missioners. Heath g. Willard for petition
ers; K. w. Bisbee and S. c. Shurtleff fol
defendant.
William Carter as. John w. Nichols
| This was an action of general assumpsi
brought by John Hardigan, in the name o
William Carter, the nominal plaintiff
court for defendant. The facts in the case
are as follows; William Carter was at work
for defendant in April, 1884; that while at
work for Nichols Judgment was obtained
against him Carter at the Washington
county court March term, 1884 in favor OF
Frank Hardigan, the minor son of John
Hardigan that the said Carter was arrested
on an execution and brought to Montpelier
by the officer making the arrest, and in part
consideration of his release executed a writ
ing in the form of an order addressed tC
Nichols, directing him to pay to John Har
digan, or order, the sum of So month while
he worked for him until a certain judgment
held by said Hardigan against him was
paid that subsequently Hardigan pre-
sented the order to Nichols, who refused tC
accept the same, and Hardigan told the de-
fendant he should hold him responsible ac
cording to the terms of said order that Car
ter continued to work for Nichols at the
rate of $50 a month until July, 1884; thai
Hardigan called on Nichols several times
for the pay on said order, which he, the sad
Nichols, refused. In the argument in SUI
preme court it was claimed, on the part o.
the petitioners, that the writing was an as
signment of so much of his wages as was
named in such writing to a particular pur
pose, and that notice was all that was re
quired to charge the defendant with the pay
ment ofthe same to Hardigan; that it was mo-
an order requiring an acceptance, but was al
equitable assignment OF so much of his wages
that an assignment of future wages was
good, when earned, and operated to convey
the same to the assignee. 1t was contendet
on the part of the defendant that this being
an action at law, and that there being moth.
ing in the hands of Nichols at the time
the order was given, it was subject tC
a contingency, even if accepted; that
court will not compel person to become
party to contract against his will, and thai
the writing in this case was not an assign
ment, but merely an order requiring an ac
ceptance to bind the person on whom the
order is given. Gordon & Gary for plant
itf. s O. Shurtlatf for defendant