this special service, and not by the rules applicable to the ordinary functions of the jury. The doctrine of reasonable doubt, and the doctrine regarding presumptions, as legal rules, have no application to this branch of their duty. So the respondent was not entitled to a compliance with his requests. Judgment that there is no error in the proceedings and that the respondent take nothing by his exceptions. court charged the jury that, in determin- | jury, and their rights therein are to be deing whether the verdict should be with cap- termined with reference to the nature of ital punishment, they should weigh all the evidence bearing upon that point and all the evidence and circumstances in the case, and proceeded as follows: "Is this a case where leniency should be shown, or did the act, if committed, show such an abandoned and malignant heart that you are satisfied beyond a reasonable doubt that in the discharge of your duty, and under your oath, you should add the words, 'with capital punishment?' This is a matter which rests entirely with you; it is for you and you alone to determine." The respondent excepted to the failure to comply with his request. At the close of the charge the respondent (Supreme Court of Vermont. Windsor. June requested the court to charge, further, that, if a verdict of murder in the first degree should be found, there would be a presumption in favor of the lesser punishment until that presumption was overcome by the evidence in the case. The court declined to add this to the charge, and the respondent excepted to its failure to do so. It is argued for the respondent that the effect of the provision regarding the penalty is to divide murder of the first degree into two grades, one meriting life imprisonment and the other death; that such a provision necessarily contemplates some distinction by which the classification may be determined; that an important consideration must be the degree of mental capacity possessed by the respondent above that which is sufficient to subject him to criminal liability; and that, when there is evidence of mental inferiority, the jury should be instructed upon this point, and told that they should not return a verdict of death unless they were satisfied beyond all reasonable doubt that that was the only penalty adequate to the case. [3] It is not necessary to consider the exact phraseology of the first request, nor to inquire whether the charge was a substantial compliance with it. The case can be and should be disposed of on broader ground. We think the respondent's argument, in its bearing upon both requests, misconceives the force of the amendatory enactment. It was not the purpose of the Legislature to create subdivisions of the crime of murder in the first degree, to be ascertained by drawing some line of legal demarcation, and make this classification determinative of the penalty. It was left for the jury to choose the penalty for the case before them in the untrammeled exercise of a just and wise discretion. They are to be governed therein by such considerations as appeal to their own judgment and discretion upon a review of the whole case. The court is not entitled to limit them in the exercise of this discretion by instructions in any form. A duty which the law ordinarily imposes upon the court is in this instance assigned to the PAIGE v. MCCARTY. 10, 1912.) (86 Vt. 127) 1. APPEAL AND ERROR (§ 203*)—REVIEW— NECESSITY OF OBJECTIONS. in the absence of an objection taken at the A ruling on evidence cannot be reviewed, time. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1064; Dec. Dig. § 203.*] 2. MASTER AND SERVANT (§ 264*)-INJURIES TO SERVANT-DEFECTIVE PREMISES-VARIANCE. In an action for injuries to a servant by falling through a floor in a livery basement, the declaration alleged that the floor broke by reason of rottenness and other imperfections therein. Plaintiff testified that he went down through the floor, through a hole, and defendant, being called for plaintiff, testified that the hole after the accident was a little larger, if anything, than before, and was broken in and smoothed off square where it was rough before. Held, that such proof did not show that plaintiff's injury was solely sustainsupported the allegation that the floor was ed by stepping through a hole, but sufficiently weak and rotten around the hole, and that the defective character of the floor was the cause of the accident. Servant, Cent. Dig. §§ 861-876; Dec. Dig. § [Ed. Note.-For other cases, see Master and 264.*] Exceptions from Windsor County Court; Eleazer L. Waterman, Judge. Action by William Paige against J. W. McCarty. Judgment for plaintiff, and defendant brings exceptions. Affirmed. It appeared that defendant was the keeper of a livery stable, and that plaintiff was in his employ; that in the basement of the stable there were a number of stalls; that at the time of the accident plaintiff was at work cleaning out this basement as defendant had directed; that there was then, and for some time before had been, to the knowledge of defendant, a hole in the floor of one of those stalls; that the basement was so dark that this hole could not been seen without artificial light; that the basement was wired and equipped for electric lights, but defendant did not tell plaintiff this, and the basement was so dark that the electric light fixtures could not be readily seen by one who did not know of their existence; that there was a socket for an electric lamp di rectly behind the stall in question, but no lamp in the socket at the time of the accident. Plaintiff testified that he found and turned on one light before the accident; that he placed his wheelbarrow, stepped into the stall in the floor of which was the hole, "and commenced shoveling, and the first I knew I went down through the floor, through the hole," whereby he sustained the injuries of which he complained. Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ. which broke and gave way with him, all the evidence being that his injury, if any he sustained, was caused by stepping through a hole." But it cannot be said that there was no evidence tending to support the allegation, for, though it appears that there was a hole there before and at the time of the accident, yet the testimony tends to show that the floor was very weak and rotten around the hole, and that some of it gave way and the hole made larger by the accident, without which it cannot be said that the accident would have happened. Nor was the plaintiff Davis & Davis, for plaintiff. Bert E. Cole obliged to prove all he alleged in this behalf. and E. R. Buck, for defendant. ROWELL, C. J. This is case by a servant against his master for personal injuries sustained by reason of the insufficiency of the floor of a basement stable in which he was working. [1] The objection to the question put to Dr. Miner, asking whether the plaintiff complained of anything when he manipulated his injury that day, is not available, as no ground of objection was stated. The defendant objected to the plaintiff's showing the condition of the floor at the time of trial, unless he showed that it was then in the condition it was at the time of the accident. Thereupon the plaintiff said he would show that by the defendant himself, and then the witness was allowed to state the condition at the time of trial. Later the plaintiff examined the defendant on that subject, and it does not appear that the defendant made any claim that his testimony did not make good the plaintiff's offer, and so the defendant can take nothing by this objection. defendant's motion for a verdict on the ground of contributory negligence was properly overruled, for the testimony was not sufficiently decisive to make that a question of law. The The Thus in Hutchinson v. Granger, 13 Vt. 386, which was case for flowing plaintiff's land by means of a dam on defendant's land, the declaration alleged that the defendant wrongfully kept and continued the entire dam, which had before been wrongfully built, and kept the gates and sluices therein so shut and closed that the water of the stream was prevented from flowing through the plaintiff's meadow in its natural channel and caused to set back upon and overflow it. The proof was that in summer time, when the water was more than four inches deep on top of the dam, the defendant was bound by a covenant running with the land to open the sluices so as to lower the water to that height if it could be. But the plaintiff had judgment, it being held that he was not bound to prove the full extent of the wrong alleged, but could recover for any, the least, portion of it that caused him legal injury. Affirmed. (86 Vt. 137) MORGAN v. DEVERANNES et al. June 10, 1912.) Under P. S. 181, providing that, if the board of civil authority is satisfied and decides ballot were made to enable it to be identified, that any double or irregular markings of the such ballot may be rejected, it is not improper for the inspectors of an election to count a ballot marked with double or irregular markings instead of with a cross (X), where it is not impossible to determine the intent of the voter and the inspectors are not satisfied that such markings were made to enable the ballot to be identified. Cent. Dig. §§ 166, 167; Dec. Dig. § 194.*] Petition for writ of mandamus by Frank [2] The declaration alleges that the floor "broke and gave way by reason of rottenness and other imperfections therein." The plaintiff testified that he "went down through the floor, through a hole," clear down to his knee; that he tried to jump, and it threw him over onto the manger; that the floor was so rotten he could put his heel through it anywhere around the hole. defendant, being called by the plaintiff and asked if there had been any change in the size of the hole when he saw it the day after the accident from what it was when he saw it about a week before the accident, said it was a little larger, if anything, more Section 340 of the City Charter reads: square, was made bigger when it was broken "Except when changed or modified by the in, and smoothed off square where it was provisions of this act, or by any legal regularough before. The defendant moved for a tion or ordinance of said city, all provisions verdict because there was no evidence tend- of the statutes of this state relating to towns ing to support the allegation of the declara- and town officers shall apply to said city and tion that the "injury was caused by the to the several officers thereof corresponding weakness and insufficiency of the floor. to officers of towns. In such statutes the others. Petition dismissed. words 'selectmen' and 'board of civil authori- the statutes of the state pertaining to ballous ty' shall include 'city council' and the words to be used in general and in local elections 'first selectman' shall include 'mayor.'" apply. We assume, but do not decide, this to be so, and determine the matter before us on on that basis. The Public Statutes, section 177, reads: "On receiving his ballot or ballots, the voter shall forthwith, and without leaving the polling place or going outside the guard rail, retire alone to one of the booths not occupied by any other person and prepare his ballot or ballots by making in the appropriate margin or place, a cross (X) opposite the name of the candidate of his choice for each office to be filled, or by filling in the name of the candidate of his choice in the blank space provided therefor, and making a cross (X) opposite thereto; or, if he desires to vote for the entire list of candidates in any column, by making a cross (X) in the square over such column; and, if a question is submitted to the vote of the people, by making in the appropriate margin or place, a cross (X) against the answer which he desires to give." Section 180 provides, among other things, for the return and preservation of spoiled and unused ballots. Section 181 of the Public Statutes specifies that, unless otherwise provided, no ballot without the official indorsement shall be deposited in the ballot box, and none but ballots provided according to that title shall be counted; but it contains no provision to the effect that no ballot marked otherwise than with a cross (X), as specified in section 177, shall be deposited in the ballot box, nor, if deposited, that it shall not be counted, except when it is impossible to determine the intent of the voter as to his choice for an office to be filled. It does, however, contain specific provision respecting ballots having double or irregular markings thereon. "If the board of civil authority"-in this case the inspectors of election "is satisfied and so decides by majority vote of those present, that any double or irregular markings of a ballot were made for the purpose of enabling it to be identified and the vote traced so as to defeat the secrecy and purity of the ballot law, such ballot may be rejected," and the board shall make a record of such rejection with the reason for it or the evidence on which it is based, etc. If possible to determine the intent of the voter as to his choice for an office to be filled, his ballot must be counted, even though it contains double or irregular markings, unless the board or official persons, whose duty it is by law to decide the matter, are satis Section 181 reads: "If the voter marks more names than there are persons to be elected to an office or if, for any reason, it is impossible to determine the intent of the voter as to his choice for an office to be filled, his ballot shall not be counted for such office. If the board of civil authority is satisfied, and so decides by majority vote of those present, that any double or irregular markings of a ballot were made for the purpose of enabling it to be identified and the vote traced so as to defeat the secrecy and purity of the ballot law, such ballot may be reject-fied and decide that the double or irregular ed. Said board shall make a record of such rejection and the reason for it or the evidence on which it was based and shall file the same with the ballots counted as provided in section one hundred and ninety. No ballot, without the official indorsement, shall, except as otherwise provided, be deposited in the ballot box; and none but ballots provided in accordance with this title shall be counted. Ballots not counted shall be marked 'defective' on the back thereof and returned and preserved as provided for returning and preserving ballots in the preceding section." Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ. markings thereon were made for the unlawful purpose specified-certainly a question requiring by statute the exercise of judicial functions in its determination. One of the ballots in question was marked with a cross (X) in conformity to the provisions of section 177 of the statutes, and consequently was properly counted. The other, instead of being marked in the appropriate margin or place by a cross (X), was there marked by what purports to be two Arabic numerals standing side by side, as if used together to express a number. Undoubtedly this ballot contains what the statute designates as "double or irregular markings." Yet it is sufficient for the determination of the case to say that it cannot be said to be im A. L. Sherman and H. S. Peck, for petition- possible to determine the intent of the voter er. M. G. Leary, for respondents. WATSON, J. The charter of the city of Burlington contains no provision requiring the ballots used in a local election to be marked by the voter in any particular manner, nor for the rejection of ballots cast because defective. The relator contends that, as to his choice for the office to be filled, and the record does not show that the inspectors of election were satisfied and decided, that such markings were made for the purpose of enabling the ballot to be identified and the vote traced so as to defeat the secrecy and purity of the ballot law, without which, as before seen, the ballot could not be rejected. (109 Me. 232) CANNEY v. COREY et al. (Supreme Judicial Court of Maine. June, 1912.) 1. BILLS AND NOTES (§ 116*)-LIABILITY OF PARTIES-PRESUMPTIONS. In the absence of agreement to the contrary, the parties to a note are presumed to be liable on it according to the legal effect of the instrument. [Ed. Note. For other cases, see Bills and Notes, Dec. Dig. § 116.*] 2. ESTOPPEL (§ 78*) EXISTENCE OF RELATION OF PRINCIPAL AND SURETY. Defendant, an indorser of a note, who induced plaintiff to indorse by deceiving her into believing that by indorsing below his name she would become merely a surety for him, is estopped to deny that he assumed the relation of principal to plaintiff. [Ed. Note.-For other cases, see Estoppel, Cent. Dig. §§ 204-210; Dec. Dig. § 78.*] Report from Supreme Judicial Court, Cumberland County. Action by Mary E. Canney against David W. Corey and Ralph E. Bridges to recover the sum of $2,548.63 paid by her to the Merchants' Trust & Banking Company of Presque Isle, in satisfaction and discharge of an execution issued on a judgment in favor of said bank against said Corey, Bridges, and Canney. Plea, the general issue filed by the defendant Corey. At the conclusion of the evidence the case was reported to the law court for determination. Judgment for plaintiff. Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, BIRD, and HALEY, JJ. Payson & Virgin, of Portland, for plaintiff. Ralph E. Bridges, pro se. Symonds, Snow, Cook & Hutchinson, of Portland, and Geo, H. Smith and Charles F. Daggett, both of Presque Isle, for defendant Corey. WHITEHOUSE, C. J. This case is presented to the law court upon a report of the evidence. The question to be determined is the liability of the plaintiff and of the defendant Corey upon a certain promissory note for $4,600, dated December 12, 1907, signed by Ralph E. Bridges, the plaintiff's son, and one of the defendants, and on the back by the defendant Corey and the plaintiff Mary E. Canney. The plaintiff claims that she is a surety for Bridges, the maker, and for the defendant Corey, and hence has the right to be fully indemnified by Corey against any liability on the note. On the other hand, Corey claims that he and Mrs. Canney are joint promisors for the accommodation of Bridges, and so as between themselves are cosureties, and each liable for one-half of the note upon the default of the maker. half of the note, and, after execution thereon had been issued and payment demanded, the same was paid by Mrs. Canney. This suit is brought by her to obtain reimbursement for such payment from the defendant Corey. [1] It is undoubtedly true that, in the absence of an agreement to the contrary, the presumption of law is that the parties to a promissory note are liable on it according to the legal effect of the instrument, and the burden is on the plaintiff to show that there was an agreement or mutual understanding that Corey should assume the relations of principal as to her. From [2] June 12, 1906, the defendant Bridges gave his promissory note to the defendant Corey for $4,000 for capital stock of the Carter & Corey Company which he claims he purchased at the solicitation of the defendant Corey. This note was indorsed by Corey, and discounted by the Trust Company at Presque Isle, of which Bridges was treasurer, and thus in a position to grant favors to Carter & Corey Company. Bridges had already prior to that time purchased $10,000 of that stock at the solicitation, as he says, of Corey & Carter. At that time the defendant Corey was treasurer and a large stockholder of the Carter & Corey Company. The note for $4,000 was not paid at maturity. but renewed by a note made payable directly to the Trust Company and indorsed by Corey. When this note became due in June, 1907, Bridges wished to borrow $600 more and to renew the note for $4,600. the cash that Bridges had put into the company for all of the stock purchased by him Corey had received a benefit in the increased value of his own large holdings of stock, and he readily consented to indorse a renewal note for $4.600. But, when this note became due in December, Bridges was not in financial condition to pay it, and Corey well knew it. Corey also knew that he himself was in the position of an original promisor on the note, and, if the bank should refuse to renew it and proceed to enforce collection of the note at that time, he would be obliged to pay the whole of it. There is no evidence in the case that he was not amply able to pay it. He testifies, it is true, that Bridges told him a few days before the maturity of the note that he had received a letter from Barker, the president of the bank, stating that he could not renew the note again without an additional indorser, but the letter is not produced, and Bridges says that the first information he had that the bank would require another indorser came from Corey himself. He says that Corey told him that the president had written to him that it would be satisfactory if Mrs. Canney would indorse the note. June 26, 1909, upon demand of the payee of the note, the defendant Corey paid onehalf of the amount of it. Subsequently the payee recovered judgment against Bridges, Corey, and Canney for the remaining one There is no evidence that the bank questioned the financial responsibility of Mr. Cor ey. It appears from his testimony that the Carter & Corey Company had carried a large balance in 1907 as depositors in that bank. Corey was deeply interested in having the note renewed with an additional indorser who might relieve him of one-half of the amount of his liability on it. As far as appears in evidence, he was the only one specially interested in having Mrs. Canney indorse the note; but whether he requested the president of the bank to inform Bridges that the note would not be renewed without an additional indorser does not expressly appear, but the evidence warrants the conclusion that the idea of having Mrs. Canney indorse the note was suggested by Corey. sume the responsibility of a principal. He knew that she so understood it and believed it. If he knew his statement as to the effect of placing his name above hers to be false, he intended to deceive her. He did not know it to be correct, but recklessly stated as a fact what he did not know to be true. In either event, he is estopped to deny that he assumed the relation of principal to the plaintiff, and should in justice be required to pay the full amount of the note. The certificate must accordingly be: Judgment for the plaintiff for $2,548.63, with interest thereon from February 26, 1910. (109 Me. 236) INHABITANTS OF BOOTHBAY v. E. I. DU (Supreme Judicial Court of Maine. June, TAXATION (§ 263*) · PERSONALTY WHERE The result was that Bridges arranged for an interview between Mr. Corey and Mrs. Canney. Bridges testifies that Corey then told Mrs. Canney in his presence that "we only needed her name for a short time, for a few months, and that he would have, that he would pay the note, that the note would be paid before it became due June 12, 1908." Mrs. Canney replied that "it was impossible for her to indorse the note, because, if the note wasn't paid at maturity, she couldn't afford to pay, in fact, she didn't have the money to pay it, and to take care of the sickness she had in the family." Mr. Corey seemed a little impatient that she should have any idea that she would have to pay the note. He told her that there was no ques-coln County, at Law. tion of her having to pay the note, that it would be paid, taken care of before it became due, etc. It is true that Mrs. Canney says in her testimony that Bridges told her, in answer to her continued protests against signing it, that she would not have to pay but half of it in any event, as Mr. Corey's name was on there. And she replied that she could not "afford to pay half of it." Thereupon Mr. Corey repeated that there was no question of her having to pay the note, and said "he would put his name above hers, so she wouldn't be called upon." Upon the strength of this final statement, she appears to have consented to indorse the note. Mr. Corey does not deny in his testimony that he assured Mrs. Canney that "he would put his name above hers so that she wouldn't be called upon." He knew that she had no knowledge whatever of the previous history of their transactions in regard to this note, and no acquaintance whatever with the law of promissory notes, and that she would believe what he said to her. In making that statement he must be presumed to have intended to create a belief in the mind of the plaintiff that he would so indorse the note as to protect her against any liability to pay any part of it. It was equivalent to an assurance that she was only required to sign as surety for him, as well as for Bridges, and a promise that as to her he would as facture of boxes for the manufacturer's use in Logs and lumber used at a mill for manushipping explosives are taxable as personalty "employed in the mechanic arts," within Rev. St. c. 9, § 13, par. 1, in the town where the mill is located. [Ed. Note. For other cases, see Taxation. Cent. Dig. § 437; Dec. Dig. § 263.*] Report from Supreme Judicial Court, Lin Action by the Inhabitants of Boothbay against the E. I. Du Pont De Nemours Powder Company. On report. Judgment for defendant. Argued before WHITEHOUSE, C. J., and SAVAGE, KING, BIRD, HALEY, and HANSON, JJ. Tupper & Perkins, of Boothbay Harbor, for plaintiffs. William M. Bradley, of Portland, for defendant. HALEY, J. This is an action of debt brought by the inhabitants of the town of Boothbay against the defendant for taxes assessed by the town of Boothbay on the personal property of the defendant, consisting of 550,000 feet of logs and 350,000 feet of sawed lumber, situated on the 1st day of April, 1910, in the town of Boothbay. It is agreed that all preliminary steps necessary to authorize the action had been taken, and that the taxes were legally assessed and committed to the collector, provided said personal property was legally taxable to the defendant in the town of Boothbay. The defendant, a New Jersey corporation having its principal place of business at Wilmington, in the state of Delaware, on the 1st day of April, 1910, had a mill in the town of Standish, in the county of Cumberland, for the purpose of manufacturing boxes for the shipment of its explosives. For the purpose |