close of the charge, were not seasonably taken, | of S. E. McKinney, a daughter, had reached and hence will not be considered.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 230;* Trial, Cent. Dig. §

680.]

their majority. Prior to July 27, 1912, trouble again broke out between the plaintiff and his wife. The plaintiff attributed the diffi

23. TRIAL ($257*)-INSTRUCTIONS-REQUESTS culty to Mr. and Mrs. McKinney and his son

-TIME OF PRESENTATION.

While the court might in its discretion waive the rule as to the time requests to charge must be made, and might consider requests made orally at the bench at the close of the charge, it was not bound to do so.

[Ed. Note.-For other cases, see Trial, Cent. Dig. $8 642-645; Dec. Dig. § 257.*]

Mrs.

Vernon, who were then living in the family paying board. On that day plaintiff notified Mr. and Mrs. McKinney and Vernon to leave the house and find board elsewhere. Fadden had brought a new petition for divorce which had been served on the plaintiff on July 24, 1912, in which the plaintiff was

Exceptions from Franklin County Court; restrained from interfering with the wife's Willard W. Miles, Judge.

Action by R. W. Fadden against S. E. McKinney and others. Judgment for plaintiff, and defendants except. Reversed and remanded.

Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ.

Elmer Johnson, of St. Albans, for plaintiff. C. G. Austin & Sons, of St. Albans, for defendants.

TAYLOR, J. This is an action of trespass for breaking and entering the plaintiff's close, situated on Aldis street, in the city of St. Albans, to which a count in trover is joined for taking and carrying away certain household goods claimed to be owned by the plaintiff. The plea was not guilty.

The first question presented arose below on the motion of defendant S. E. McKinney for a directed verdict, on the ground in substance that there was no evidence to support a verdict against him. On this question the transcript of the testimony is referred to and made controlling.

possession of the household effects upon the premises in question. Mr. and Mrs. McKinney and Vernon did not act at once upon the notice to leave the premises, and steps were taken which resulted in a hearing before the judge, who signed the restraining order in the divorce proceeding on August 8th and 9th, among other things on a motion to modify the injunction. At the conclusion of the hearing the judge stated orally the substance of his decision, which, so far as material to the questions before us, was to the effect that conditions should remain substantially as they were pending the petition, except that the older children, Vernon J., Myrl, and her husband, S. E. McKinney, should immediately procure board and accommodations elsewhere; that the plaintiff have the exclusive use of certain portions of the dwelling house and be prohibited from occupying other portions thereof; that Mrs. Fadden should have the right to occupy the portions of the dwelling house not set apart for the plaintiff, or to go elsewhere at her option; and that she should not remove, or permit to be removed, from the premises any of the The evidence, viewed in the light most fav-household furniture or other personal effects orable to the plaintiff, in any way material situate thereon, except her own clothing and to the disposition of this question, is as fol- that of the children. Defendant McKinney lows: The plaintiff was a married man and was present at the hearing and heard the for several years prior to the date of the al- decision announced. The written order signleged trespass had lived on the premises in ed by the judge was received and filed in the question with his wife and children. Some clerk's office August 12, 1912, after the trestime in 1908 difficulty arose between the pass complained of. The day following this plaintiff and his wife which culminated in a hearing, Mrs. McKinney, accompanied by her petition for divorce brought by the wife in mother, found and rented a tenement on MesJune of that year. At that time, and ever senger street, in another part of the city, and since the family had lived on the premises, on the following day engaged defendant the title thereto was in the plaintiff. Shortly Charron, who was a truckman, to move her after the petition for divorce was brought, a reconciliation was effected and an agreement entered into providing, among other things, that the plaintiff should convey the premises to his wife. Pursuant to this agreement the premises were conveyed through a third person to the wife, and the divorce proceedings | were discontinued. The plaintiff and his wife continued to occupy the premises as their home until the day of the alleged trespass. Five of the plaintiff's six children were living at home with their father and mother in the summer of 1912. The defendant, Vernon Fadden, a son, and Myrl McKinney, wife For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

and her husband's furniture then in the house on Aldis street to this tenement. It did not from direct evidence appear that Mrs. Fadden was party to the original renting of this tenement nor that she then intended to leave the Aldis street house; but it did appear that the next day she had reached this decision and made an arrangement with Mrs. McKinney to take the tenement and furnish room and board to Mr. and Mrs. McKinney.

On the day of the trespass complained of, defendant Charron, pursuant to his talk of the day before with Mrs. McKinney, sent two of his servants. Albert Olds and Merton

[1] If the circumstances afforded a just basis for the inference that Mrs. McKinney procured such an entry, it would violate the rule against basing one presumption upon another to infer therefrom that what she did in that regard was counseled and advised by her husband. No inference can legitimately be based upon a fact, the existence of which itself rests upon a prior inference. 2 Cham. Mod. Ev. § 1029; Doolittle v. Holton, 26 Vt. 588. The only presumptions of fact which the law recognizes are immediate inferences from the facts proved. Comstock's Adm'r v. Jacobs, 84 Vt. 282, 78 Atl. 1017, Ann. Cas. Whenever circumstantial evi1913A, 679.

E. Lovely, the remaining defendants, with | entry by Charron's servants to remove the two large truck teams to move the goods. plaintiff's goods. Defendant Charron was not present and took no part in the actual moving of the goods. Olds and Lovely, assisted by Mrs. Fadden, Mrs. McKinney, and Vernon Fadden, without the consent and against the protest of the plaintiff, loaded the furniture onto the teams, which were backed across the lawn of the premises in question, and moved it to the Messenger street tenement, leaving the house practically stripped of its furnishings. The furniture and personal effects of the defendant McKinney were loaded and moved at the same time with that claimed by the plaintiff. The trespass complained of was the entry of the premises to remove the household goods and personal effects of, or claimed by, the plaintiff.

The plaintiff claimed that Mrs. McKinney employed Charron to move all the furniture, and that in doing so she was acting for her husband. There was no direct evidence to connect Mr. McKinney with the transaction, and he was not present at the time of the moving and, so far as appeared, had nothing to do with it further than to give Mrs. MeKinney money to pay for moving their personal effects. Mr. McKinney was employed by the Central Vermont Railway Company and left the house in the morning before the work of moving was begun and did not return. It appeared that Mrs. McKinney had told her husband where and when they were to move, and that she had employed Charron to move their goods. There was no direct evidence to support the plaintiff's claim that Mrs. McKinney employed Charron to move the goods in question. It appeared, however, that Charron's men came with two teams, while one would have been sufficient to move the McKinneys' goods.

Mrs. Fadden paid Charron's men for moving the goods, except what was contributed by Mr. McKinney for moving his own. Mrs. Fadden took the minor children with her to the Messenger street tenement and at once became the head of the family there, paying the rent, and Mr. and Mrs. McKinney and Vernon continued members of her family as boarders.

Was there evidence to go to the jury so far as defendant S. E. McKinney was concerned? We think not. Up to the time he and his wife were ordered to leave the premises, he was rightfully there as a roomer and boarder. After receiving such notice, Mrs. McKinney procured a place to which to move their personal effects. It was not claimed that he did not have a right to remove the goods belonging to himself and his wife in the way they were removed; nor was it claimed that he personally employed Charron and his men to remove any goods claimed by the plaintiff or personally had anything to do with their removal. There was no evidence tending to

dence is relied on to prove a fact, the circumstances must be proved and not themselves presumed. Cunard S. S. Co. v. Kelley, 126 Fed. 610, 61 C. C. A. 532.

[2] A presumption of fact is an argument which infers a fact otherwise doubtful from a fact which is proved; hence, to be valid, it must rest on a fact in proof. So far as appeared, whatever Mrs. McKinney may have done in that regard was without his knowlchargeable for the tort of Mrs. McKinney, if acts in that behalf were committed without she were guilty, for, so far as appeared, her his authority or direction.

edge or consent. Moreover, he would not be

[3] By P. S. 3042, the husband is relieved from the common-law liability for torts of his wife unless committed by his authority or direction. Story and Wife v. Downey and Wife, 62 Vt. 243, 20 Atl. 321. The very most the plaintiff could claim from the evidence would be knowledge on the husband's part that the wife had employed Charron to move the plaintiff's goods, which alone clearly does not make the husband liable. Besides, to make the cause of action complete against the husband for the tort of the wife, it is necessary to allege and prove that it was committed by his authority and direction, which was not attempted in this case. Story and Wife v. Downey and Wife, supra.

[4] It is now the well-settled rule in this state that something more than a mere scintilla of evidence is required to support a verdict. The evidence must fairly and reasonably tend to establish liability. Davis v. Boston & Maine R. R., 86 Vt. 205, 84 Atl. 818. And where, as here, liability rests entirely upon circumstantial evidence, the circumstances must reasonably tend to support the inference. Latremouille v. Bennington & Rutland Ry. Co., 63 Vt. 336, 22 Atl. 656. In the absence of evidence fairly and reasonably tending to connect defendant S. E. McKinney with the trespass, he was entitled to have a verdict in his favor directed.

[5] In cross-examination of the plaintiff, defendants' counsel, referring to the time of the reconciliation, asked the question: "Now, at that time, did you not agree with

custody of the children, and not to obstruct ownership, etc., arises from the employment her in the management of the household af- in statutory or common-law phraseology of fairs and the care of the children?" The terms having an untechnical use. When the exceptions do not show that the court ex- issue there arises on the application of the cluded the question. In their brief defend- law to the facts, and it is desired to prove ants' counsel expressly waive the "third ex- that the conditions or qualities named in ception," which evidently relates to this the law do or do not exist, a direct question question. In oral argument they insisted that upon the point in issue is often forbidden reference to the transcript of the evidence by a strict application of the opinion rule." would show that the question was excluded 3 Wig. § 1960. and an exception allowed, and that the exceptions referred to the transcript and made it controlling, so that the question was reserved. But the reference to the transcript is "for all the evidence * ** in support of the various motions and exceptions hereby referred to, * and is controlling on all questions of fact in respect to the same." The reference is to evidence in support of exceptions stated in the record and not to exceptions that may have been reserved on the trial but that have been waived in preparing a draft of exceptions. We are confined to the record, and that discloses no question for review. Comstock's Adm'r v.

*

Jacobs, 84 Vt. 277, 78 Atl. 1017, Ann. Cas. 1913A, 679.

[6] Lest, by passing unnoticed the fact that a question was argued that had been expressly waived in the brief, it might be inferred that counsel were at liberty to recall such a waiver at pleasure, we hold that the waiver is binding unless leave is granted to withdraw. The adverse party is entitled under the rules to know in advance of argument what questions are relied upon by the excepting party, and very properly may omit to brief questions thus waived.

[7] Besides it is uniformly held that this court will not consider questions that are not briefed by the exceptor. Leavens v. American Express Co., 86 Vt. 342, 85 Atl. 557.

In further cross-examination of the plaintiff, this question was asked, "Now, after that reconciliation, did not your wife have the possession of and control of the household and the personal effects therein, down to the time of the removal of those things?" to which witness replied, "Why, she had just the same as she always had." Defendants' counsel asked to have the question read, whereupon, an objection being interposed that that was a question of law, the court excluded the question.

[8] Counsel and the court below evidently treated the question as though unanswered, and we consider it in the same way here.

[9] It was not error to exclude the question. It is not necessary to consider whether control of the premises or of the household goods is more than a question of fact, for, as framed, the question involves that of possession which is usually a mixed question of law and fact.

It is conceivable that a state of facts might arise where it would be so unambiguous that the inference as to whether a person was or was not in possession of lands or chattels would obviously be a question of fact and not at all a conclusion of law; but ordinarily such conclusions are rejected. 3 Cham. Mod. Ev. §§ 2337, 2360. It had already appeared that an agreement in writing relating to the property had been entered into at the time of the reconciliation. During the time covered by the question the parties, as husband and wife, had occupied the premises as a home. In the process of time their relations changed, and the wife brought a

petition for divorce and secured certain temporary orders affecting the possession of the house and household effects. Finally their relations to this property were again changed as a result of the hearing to modify the temporary order. It is obvious that the question of possession, if ever one of fact, had long since become a decidedly mixed question of law and fact, and that the question calling for an answer involving a question of law was properly excluded. Clough v. Patrick, 37 Vt. 421; National Bank of Chelsea v. Isham, 48 Vt. 590; Griswold v. Wentworth, 85 Vt. 205, 209, 81 Atl. 622.

[10] As the issues were framed by the pleadings, the question of possession was one of the matters directly in issue at that stage of the trial, and the rule in this state clearly excludes the expression by a nonexpert witness of an opinion upon the precise question on trial before the jury. Jaquith Co. v. Shumway, 80 Vt. 556, 69 Atl. 157; Cate v. Fife and Child, 80 Vt. 404, 68 Atl. 1. The holding in the recent case of Coolidge v. Taylor, 85 Vt. 39, 80 Atl. 1038, that it was proper to permit a witness to testify that the defendant "lived" in a certain town at a certain time is in accord with this holding, for there the ultimate fact for the jury was the question of residence, while the testimony admitted was only "an index of that fact" and so properly received. It was not a conclusion but rather testimony concerning a simple fact. The cases cited by the defendants' counsel in their brief do not touch upon the question presented.

In cross-examination of the plaintiff he was asked, "Now, you had given your chilMr. Wigmore, in his work on Evidence, dren notice to leave, and, on the hearing at speaking of testimony as to the fact of pos- the clerk's office before Judge Butler, did session, says: "The difficulty in applying not Vernon, McKinney, and his wife then

the case." An exception to the statement was noted. There was no ground of exception. Defendants' counsel opened the incident by transgressing the very rule he invoked by his objection. Having by his own fault invited his opponent's remark, he cannot now be heard to complain. McMullin v. Erwin, 69 Vt. 338, 38 Atl. 62; State v. Slamon, 73 Vt. 212, 50 Atl. 1097, 87 Am. St. Rep. 711; Moore's Adm'r v. Cross, 86 Vt. 148, 84 Atl. 22.

once?" to which he assented. On the redirect and from documents and papers offered in examination he was asked, "Mr. Fadden, was this agreement on the part of McKinney and Vernon and Mrs. McKinney to leave your home before or after the judge had said they must go?" to which he answered, "It was after he said they must go." No objection was interposed. After the answer, defendants' counsel remarked, "What the judge said is on paper." Discussion followed as to what the judge had said both orally and on paper, concluding with an offer by plaintiff's counsel to show that they went after the court told them they must go and not before. The court said: "I am inclined to receive that as bearing upon an explanation of the question that you [referring to defendants' counsel] have called out. You may have an exception." Thereupon plaintiff was asked: "Did they agree to go, or say they would go, any of them, until after the court had made that order?" This question was not answered. Defendants' counsel objected that there was no such order, and the order filed in the divorce case was produced and received in evidence, which closed that incident.

[13] Moreover, the prompt and efficient treatment of the matter by the court below leaves no room for doubt that the mischief was cured. This being so, the error is rendered harmless and affords no basis for a reversal. Fraser v. Blanchard et al., 83 Vt. 144, 73 Atl. 995, 75 Atl. 797.

[14] The exception noted was not to the action of the court, for the defendants' objection was sustained; nor does the granting of the exception imply that the court below did not regard the mischief as cured, for otherwise it would have been its duty, of its own motion, to dismiss the jury or to set aside the verdict. Fraser v. Blanchard et al., supra.

[15] The growth in recent years in the practice of bringing up for review the conduct of counsel in argument, or in the introduction of the evidence, prompts us to call attention to the suggestion of Chief Justice Rowell in Fraser v. Blanchard. While this

[11] The ruling to which the exception was allowed apparently related to the offer by plaintiff's counsel. The question and answer that are challenged here do not appear to have been the basis of the exception. The objection following the answer was not accompanied by a motion to strike out the answer so called for no ruling as to the ques-court will review the misconduct of counsel tion. Jewell v. Hoosac Tunnel & W. R. Co., 85 Vt. 64, 81 Atl. 238. The question based on the court's ruling was waived. The exception, being unavailing, will receive no further

attention.

Two distinct questions relating to alleged misconduct of counsel are presented.

[12] 1. In the course of the cross-examination of the plaintiff, certain questions relating to the domestic affairs of the plaintiff and his wife having been asked and excluded, defendants' counsel urged: "There is another view that this is admissible upon, as showing the conditions as to these children being with her, which in truth and in fact is for the purpose of getting their board and the room rent with which to support the family." Thereupon plaintiff's counsel, addressing the court, replied: "The issue whether this man elected to support his wife has been once. tried and determined in the divorce case. They have made the most of that that they could, and the court said that he had not neglected his wife in that respect." Defendants' counsel objected to this statement in the presence of the jury. The court immediately stated that a positive fact that does not appear before the court should not be stated as a fact in the presence of the jury, and directed the jury not to consider the statement made as a fact, adding: "You should consider nothing except what comes to you under the

during the trial, and set aside the verdict when it is apparent that the mischief has not been, or could not be, cured by the action of the court below, still the proper function of an exception is to bring up for review claimed errors of the trial court, so that a party whose objection has been sustained, and he not moving to take the case from the jury, should not be allowed an exception. He should stand the same as a party who, knowing grounds for discharging the jury, keeps silent and gambles on the result.

2. In argument of plaintiff's counsel to the jury, the following occurred: "Plaintiff's Counsel: I say, gentlemen, he [referring to defendants' counsel] paraded that petition before you, and he emphasized and made prominent the fact that his wife had brought these charges against this man and got this injunction order, but when I asked the question of some witness on the stand- Defendants' Counsel: We wish an exception. Plaintiff's Counsel: I am willing he should have an exception. * * * When I asked the question- Defendants' Counsel: We ask the court to exclude. Court: There is nothing he has said yet; if he says something, you can stop him. Plaintiff's Counsel: When I asked the question of some witness, the answer to which would have told you what the result of that petition was, Brother Austin objected to the answer. Defendants'