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(116 A.)

Spanish is listed as a five-hour subject. [ cold; that for breakfast there was served The general course, it was statedcereal, muffins, and coffee, for dinner, sau"is arranged for those who do not intend going sage, salad, or stew. Butter was not always to college, with the exception of English, which served. The soup was made with carrots, is required of all; the studies are almost en- which Miss Gilman did not like. tirely elective. * * A student is allowed to select, with the consent of her parents, those studies which she may desire."

Miss Gilman testified that she wanted to take the secretarial course, which included typewriting, bookkeeping, business methods "The students' rooms are large, well-furnishand management, and Spanish. She had ed, and most attractive. Each girl has her individual bed, bureau, and clothes closet. Pu- some knowledge of this language and desired pils will be encouraged to use their own taste to take the advanced course, offered as an and give expression to their own individuality elective in the junior year of the general in the decoration of their rooms. Mount Ida | course. The superintendent, however, told is distinctly a home, and the girls will be looked her that she could not take Spanish. upon as daughters of the household."

"The instruction is thorough and given in a way to meet the needs of the individual pupil. Students who through sickness or loss of time from various causes have fallen behind in their work will find it possible at the Mount Ida School to receive that personal attention which will enable them to continue their studies to great advantage."

[2] With the evidence on the part of the

defendant standing thus, it cannot be said that there was nothing for the jury upon the issues submitted. The claimed defaults on the part of the plaintiff were, it is true, of an exceedingly slight nature. There was barely enough to take the case out of the well-established rule that there must be more than a mere scintilla of evidence in order A careful examination of the catalogue fails to make a jury question. Indeed, it may be to reveal any mention of the quality of the queried how far the nostalgia of a young table board to be furnished the scholars, but girl, away from home for, perhaps, the first upon this subject the court instructed the time, amid strange surroundings and new jury that, under the contract, Miss Gilman faces, may have colored the unfavorable im"was entitled to have that phase of the pression produced by the room, the table school life fairly met, reasonably met, just-board, the bearing of the teachers, and the ly met." This, it is believed, was equivalent inability to avail herself of the advanced to saying that the table board was required to be of reasonably good quality.

The defendant's evidence tended to show that the room assigned Miss Gilman was not a corner room and was very small, and was furnished with two small cot beds and two bureaus, which were on the style of camp furniture, stained green, two straight chairs, two small rocking chairs, one commode, and

one round table. There was one light, and

one window, facing north, through which no sunlight entered the room. The wall paper was faded, and there were holes in it where previous occupants of the room had driven nails. The furniture showed the marks of usage, and the knobs were off the bureau drawers.

course in Spanish. Miss Gilman went to the school, as appears from the transcript, rather unwillingly; she arrived there five weeks after the school year had commenced, and remained only from about 10 o'clock on

Tuesday morning until about 1 o'clock on Friday afternoon of the same week. One night during this time she spent away from

the school with her mother. There was scarcely an adequate opportunity fairly to judge the school, and it is possible to infer from the evidence that the young lady was somewhat hypercritical. Nevertheless these questions were for the jury, and error does not appear; and so the exception to the overruling of the plaintiff's motion for a verdict is not sustained. This holding disposes also

substance:

The evidence of the defendant respecting of the plaintiff's exception to the submission the alleged lack of attention given to Miss of the issues above mentioned to the jury. Gilman tended to show that the latter was unable to get books for the courses in book-counsel for the defendant, referring to the In his argument to the jury one of the keeping, business management, and shorthand, although she had been informed that transaction between the parties, said in they were procurable at the school office; that one of the teachers, with whom she had had some correspondence and interviews previous to coming to the school, paid no attention to her; that no member of the faculty gave her any personal attention, although it was known that she was behind in her studies; that the assistant principal "was very cool, and she didn't take any interest at all."

The defendant's evidence as to the table board was to the effect that the food was

"It is a money grab, a shell in the box scheme; a money grabbing scheme."

[3] Some question is raised by the defendant whether this statement was in fact made, but it is considered that it fairly appears from the transcript that these words were used. The statement was not retracted and the jury were not warned by the court to disregard it. An exception was asked for by the plaintiff and allowed by the court,

and this was in effect a ruling that the argument was proper. Smith Woollen Machine Co. v. Holden, 73 Vt. 396, 403, 51 Atl. 2; Cutler & Martin v. Skeels, 69 Vt. 154, 161, 37 Atl. 228. This was error. The argument was highly improper, and requires a reversal. There was no warrant in the evidence for such a statement as this, and it could not have been otherwise than extremely prejudicial. Hambleton v. Aja Granite Co., 115 Atl. 102.

Judgment reversed, and cause remanded.

(95 Vt. 515)

CHADWICK v. WIGGIN.

(Supreme Court of Vermont. Windsor.
Feb. 9, 1922.)

1. Appeal and error 232 (2)-Objection to testimony does not raise question of competency of witness.

An objection below to testimony by plaintiff that defendant's deceased husband made the contract as her agent, without objection to the witness does not raise the question of the competency of the witness, though one ground of objection was a lack of evidence of the agency. 2. Witnesses 79(1)-Competency is for the court.

The question of competency of a witness is always for the court, and, when it depends on agency, that question is also for the court. 3. Principal and agent 24- Existence of agency as basis for recovery is for the jury. The existence of an agency relied upon as a basis for recovery is a question for the jury. 4. Evidence 258 (1)-Declarations of agent inadmissible before agency is established.

The acts and admissions of an alleged agent cannot be received to bind another until the fact of agency and its scope are evidenced in some lawful way.

5. Husband and wife 138 (2)-Marriage is circumstance tending to show agency of hus

band for wife.

The fact that the parties were husband and wife does not of itself warrant the inference

that the husband was the agent for the wife, but it is a circumstance entitled to consideration in connection with other circumstances tending to show the fact of agency.

6. Evidence 258 (2)-Evidence held to make prima facie case of agency to support ad

missions.

of his agency, so that his declarations and admissions were competent against defendant. 7. Evidence 186(6)-Copy of lost statement by defendant's agent is admissible.

Where plaintiff testified that defendant's agent had furnished him with a statement of the materials furnished defendant which had been lost, but that he had made a copy of such statement in a book, the book was admissible as secondary evidence of the agent's statement, though it would not be admissible as independent evidence.

Exceptions from Windsor County Court; Zed S. Stanton, Judge.

Action of contract by A. J. Chadwick against Margaret A. Wiggin. Verdict and judgment for plaintiff, and defendant excepts. Affirmed.

Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. Raymond Trainor, of White River Junction, for plaintiff.

Wade Keyes, of Reading, for defendant.

POWERS, J. The plaintiff seeks to recover for a quantity of building materials sold to the defendant through her husband, who died before the trial, as her agent.

[1] Subject to exception, the plaintiff was allowed to testify that he made the contract of sale with the husband, and that the materials were bought for use in repairing certain houses owned by the defendant. The latter treats the question raised by this exception as one of the competency of the witness, and argues that, when competency is the question, the matter of agency is a preliminary question for the court. But the objection below was to the testimony, and not to the witness, and no question of competency was before the court. French v. Slack, 89 Vt. 514, 96 Atl. 6; Cook v. Lane, 86 Vt. 253, 84 Atl. 864. It is true that one ground of objection was the lack of evidence of agency, but it was not made sufficiently clear that this had reference to the competency of the witness, and not to agency as a basis of

recovery.

[2] As the defendant argues, the question of competency is always for the court. Cairns v. Mooney, 62 Vt. 172, 19 Atl. 225. And, when it depends on agency, that question is for the court. Dickerman v. Quincy Mutual Fire Ins. Co., 67 Vt. 609, 32 Atl. 498.

Evidence that defendant owned six houses, [3] But, when agency is relied upon as a five of which were rented to others, that her basis of recovery, the question is for the husband generally superintended the repairs of jury. Taplin & Rowell v. Marcey, 81 Vt. 428, the houses and ordered materials therefor, in- 71 Atl. 72; Camp v. Barber, 87 Vt. 235, 88 cluding those in question, that he collected the Atl. 812, Ann. Cas. 1917A, 451. The plaintiff rents and had general supervision over the

houses, is sufficient to show prima facie that here was seeking to charge the defendant by he was defendant's agent for the management showing that her husband acted in the matof the houses, and that the ordering of ma- ter as her agent; so the argument of the terials for their repairs was within the scope defendant does not apply.

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(116 A.)

lost writing. That the original
the original writing
would have been admissible as an admission
of what materials the defendant had of the
plaintiff cannot be doubted. This being so,
the copy was admissible as secondary evi-
dence of the facts. Gates v. Bowker, 18 Vt.
23; Spear v. Tilson, 24 Vt. 420; Tucker v.
Bradley, 33 Vt. 324; In re Roger's Will, 80
Vt. 259, 67 Atl. 726.

It is further claimed that, if any part of the book was admitted, the whole of it should have been received But the whole book was received, not at first, to be sure, but finally.

[4] The defendant also excepted when the missible as such. It was merely a copy of a plaintiff was allowed to state what the husband said at the time of the purchase as to what the materials were wanted for and where they were to be used. The acts and admissions of an alleged agent cannot be received to bind another until the fact of agency and its scope are evidenced in some lawful way. If the evidence has a legal tendency to show these facts, and that the act or admission is within the scope of the agency, such act or admission is legal evidence. Livingston Mfg. Co. v. Rizzi Bros., 86 Vt. 419, 85 Atl. 912. It cannot reasonably be denied that such evidence was in this case when these statements were admitted. [5] The parties were husband and wife; and, while this did not of itself warrant the inference that one was agent for the other, it was a circumstance entitled to consideration when taken in connection with other circumstances tending to show the fact of agency. Barnett v. Gluting, 3 Ind. App. 415, 29 N. E. 154, 927; Brown v. Woodward, 75 Conn. 254, 53 Atl. 112; Lindquist v. Dickson, 98 Minn. 369, 107 N. W. 958, 6 L. R. A. (N. S.) 729, 8 Ann. Cas. 1024.

[6] They lived together in the village of Quechee, where the defendant owned six houses, five of which were rented to others. Some of these tenement houses were being repaired, and the materials here in question were used in such repairs. The husband, in the main, superintended these repairs, though

the defendant looked after the work some. He ordered the materials for the repairs, both those here in question and others. He collected the rents, and had general supervision over the houses. All of these facts were within the fair tendency of the evidence, and most of them were testified to by the defendant herself. They made a prima facie case of agency within the scope of which the acts and statements in question fairly came. The defendant saved several exceptions to the charge, but, as stated in her brief, they are all included in the exception last discussed, and do not require separate treat

ment.

[7] The plaintiff testified that the husband of the defendant kept an account of the materials sued for, and furnished him with a statement thereof; that the original statement had been lost; that, before it was lost, the plaintiff copied it on the last page of a book he presented in court. That page of the book was admitted in evidence, and the defendant excepted.

It is argued that the page referred to was not independent evidence of what it showed. To this we agree. But the answer is that it was not admitted as independent evidence. It was not a book account, and was not ad

Judgment affirmed.

(95 Vt. 518)

COLVIN v. GRAY. (No. 346.)

(Supreme Court of Vermont. Rutland.
9, 1922.)

Feb.

I. Appeal and error 694 (1)-Finding not reviewed in absence of evidence.

A complaint that finding in report of the special master was contrary to the evidence could not be considered, where the evidence was not before the court.

2. Equity 403 - Master must comply with order of reference.

A special master is controlled by an order of reference, and he must comply with its terms, and cannot enlarge or restrict it. 3. Equity

403-Order of reference interlocutory and revocable. An order of reference is interlocutory merely, and can be modified or revoked by the court at any time.

4. Equity 410 (2) -Failure to report on matters referred must be brought before chancellor on motion to set aside report.

Irregularities in proceedings before a special master, or his failure to report on matters referred to him, are to be brought before the chancellor by a motion to set aside the report, or to recommit it to the master to supply the deficiency, and it is for the chancellor to say whether the case shall go back to the master or

be disposed of on the facts shown on the rec

ord.

5. Appeal and error 924-Assumed that motion to recommit to master not mentioned in decree was waived or denied.

Where motion was made to recommit report to special master because he failed to report on certain matters referred to him, and the motion was not mentioned in the decree, which stated that the case came on for hearing on the report and exceptions thereto and "on consideration of all the matters and things involved" the decree was made, it must be assumed on appeal either that the motion was waived by not being presented to the chancellor, or that it was considered and impliedly denied,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

and the order of reference became in either
case functus officio, unless there was some-
thing to take the case out of the general rule.
6. Equity 407-Master not in error in not
reporting subordinate facts.

In the absence of specific directions, a master was not in error for not reporting subordinate facts on which ultimate facts were based.

Appeal from Chancery Court, Rutland County; Sherman R. Moulton, Chancellor.

Bill by John C. Colvin against Fred E.
Gray. From a decree dismissing the bill,
plaintiff appeals. Affirmed and remanded.
Argued before WATSON, C. J., and POW-
ERS, TAYLOR, MILES, and SLACK, JJ.

C. V. Poulin, of Rutland, for appellant.
Walter S. Fenton, of Rutland, for appellee.

the exhibit mentioned, which shows it just as it is described in the second report.

[1] As to the second of these claims, it is enough to say that the evidence is not before us; therefore we cannot consider it, and the finding will have to stand. Thompson-Starrett Co. v. Ellis Granite Co., 86 Vt. 282, 84 Atl. 1017; County of Bennington v. Manchester, 87 Vt. 555, 90 Atl. 502; Fraser v. Nerney, 89 Vt. 257, 95 Atl. 501; Vermont Marble Co. v. Eastman, 91 Vt. 425, 101 Atl. 151; Stevens v. Bowker, 93 Vt. 480, 108 Atl. 347; Cutler Co. v. Barber, 93 Vt. 468, 108 Atl. 400; Holton v. Hassan, 94 Vt. 324, 111 Atl. And it does not help the plaintiff any that the exhibits, which made up a part of the evidence, are before us. Wortman v. Sharon, 94 Vt. 139, 109 Atl. 43; Read v. Reynolds, 95 Vt., 112 Atl. 359.

389.

The only other point made by the plaintiff is that the case was not ripe for final decree, because the order of recommittal was not complied with in the supplemental report.

the rule invoked will not avail this plaintiff.

POWERS, J. These parties own adjoining lands in the town of Clarendon, and the controversy is over the location of the line In support of this claim it is argued that dividing their properties. The case was re- this order involved a judicial determination ferred to a special master, who reported that that further findings were necessary to an this line was correctly described in what was adjustment of the rights of the parties, that known as "Randall's survey," and shown on the necessity of that adjudication cannot be a plan used at the trial, which was marked here questioned, and that until the order "Defendant's Exhibit A," and is made a part was complied with or reversed no final of the report. This, as all agree, was a com-action in the case could be taken. In support plete victory for the defendant, if the finding of this position, the plaintiff relies on Ranstands. The plaintiff filed a motion to re- dall v. Randall, 55 Vt. 214, a case that uncommit the report for further findings, and also filed exceptions to the report as made. doubtedly states the law of the subject. But Upon hearing the motion to recommit was granted. The recommittal order was in five paragraphs, and specified therein the various particulars which the master was required to cover in his supplemental report. When such supplemental report came in, the plaintiff filed a motion to recommit it, on the ground that the order of recommittal had not been complied with, and also filed exceptions thereto based upon the same ground. There upon the case came before the chancellor, who, without mentioning this motion, overruled the exceptions and rendered final decree for the defendant. The plaintiff appealed.

The first point made in the plaintiff's brief is based upon these two claims: (1) The two reports are fatally inconsistent; and (2) the finding in the second report that a certain 10acre piece is south of the so-called Bowman lot and not a part of it is contrary to the evidence.

As to the first of these claims, it is enough to say that on the face of the reports there is no such inconsistency. The plaintiff says that the original report makes this 10-acre piece a part of the Bowman lot. This statement is unwarranted. The 10-acre piece is not mentioned in the original report, nor is anything therein said from which its location can be inferred, unless it is the reference to

[2, 3] That a master is controlled by the order of reference and must comply with its terms is too plain for argument. 10 R. C. I.. 508; Houlihan v. Morrissey, 270 Ill. 66. 110 N. E. 341, Ann. Cas. 1917A, 3C4; Ilowe v. Russell, 36 Me. 115; Lang v. Brown, 21 Ala. 179, 56 Am. Dec. 244. It marks out his duty and it limits his authority. If it is to be enlarged or restricted, it must be done by the court and not by the master. Federal Life Ins. Co. v. Looney, 180 Ill. App. 488. Such an order, however, is interlocutory merely, and can be modified or revoked by the court at any time. 10 R. C. L. 512; Cooper v. Cooper, 164 Ill. App. 515.

[4, 5] When the second report came in, the question whether it met the requirements of the order of recommittal was properly raised by the motion filed; for the rule is that irregularities in the proceedings before the master or his failure to report on matters referred to him are to be brought before the chancellor by a motion to set aside the report or to recommit it to the master to supply the deficiency. 2 Dan. Ch. 1312, note 2; 21 C. J. 622; Tyler v. Simmons, 6 Paige Ch. (N. Y.) 127; Stevenson v. Gregory, 1 Barb. Ch. (N. Y.) 72; Hall v. Westcott, 17 R. I. 504, 23 Atl. 25; Deimel v. Parker, 59 Ill. App. 426; Gleason & Bailey Mfg. Co. v. Hoffman, 63 Ill.

(116 A.)

Argued before WATSON, C. J., and POW-
ERS, TAYLOR, MILES, and SLACK, JJ.
C. V. Poulin, of Rutland, for appellant.
Walter S. Fenton, of Rutland, for appellee.

POWERS, J. This case is between the same parties and involves the same questions as Colvin v. Gray, 95 Vt. Colvin v. Gray, 95 Vt., 116 Atl. 75. The decision and decree are controlled by that case. Decree affirmed, and cause remanded.

STATE v. MONTIFOIRE.
(Supreme Court of Vermont.
Feb. 9, 1922.)

(95 Vt. 508)

(No. 344.)

Franklin.

App. 294; Douglas v. Merceles, 24 N. J. Eq. 26. So it was for the chancellor to say whether the case should again go back to the master or be disposed of on the facts shown by the record. And his decision thereon would be an adjudication confirming or superseding the one previously made when the report was recommitted. As stated above this motion is not mentioned in the decree; but it is stated therein that the case came on for hearing on the report, the supplemental report, and exceptions thereto, and that, "on consideration of all the matters and things involved," the decree was made. In these circumstances it must be taken either that the motion was waived by not being presented to the chancellor (see Davis v. Union Meeting House Society, 92 Vt. 402, 105 Atl. 29), or that it was considered and impliedly. Abortion-Evidence necessary to prove denied. If waived, it would be an end of it, whether the order was fully complied with or not. If denied, it would likewise be an end of it, for the motion was addressed to the discretion of the chancellor, and, there being nothing here presented to take the case out of the general rule, we cannot revise the ruling. Thompson-Starrett Co. v. Ellis Granite Co., 86 Vt. 282, 84 Atl. 1017, and cases cited; Randall v. Moody, 87 Vt. 68, 88 Atl. 321. So. either way you take it, the order became functus officio, and the adjudication involved in it was "reversed" within the meaning of the rule above stated.

[6] As we have seen, the plaintiff excepted to the supplemental report for noncompliance with the order. But, assuming that the question could be reached by an exception (see Tyler v. Simmons, supra), and assuming further that the filing of the exception did not waive the motion (see 21 C. J. 622), and assuming still further that the exception is sufficiently specific (see chancery rule 39), it was properly overruled. With the order annulled as aforesaid, the second report stood just as it would had there been no specific directions to the master. Without such the master was not in error for not reporting the subordinate facts on which the ultimate facts were based. Winship v. Waterman, 56 Vt. 181; Allen's Adm'r v. Allen's Adm'r, 79 Vt. 173, 64 Atl. 1110; Fife v. Cate, 85 Vt. 418, 82 Atl. 741.

Decree affirmed, and cause remanded.

(95 Vt. 523)

GRAY v. COLVIN. (No. 3462.) (Supreme Court of Vermont. Feb. 9, 1922.)

Rutland.

Appeal from Chancery Court, Rutland County; Sherman R. Moulton, Chancellor.

Bill by Fred E. Gray against John C. Colvin. Decree for plaintiff, and defendant appeals. Affirmed and remanded.

offense stated.

Under G. L. 7013, providing that one who willfully administers anything to a woman pregnant or employs any means to procure miscarriage, unless necessary to preserve her life, shall be punished, it is unnecessary to show that the substance administered was noxious or efficient to produce a miscarriage, or that the woman took it, or that she was actually pregnant, or that a miscarriage resulted; tion being that the accused did some of the all that need be shown to warrant a convicthings prohibited by the statute intending thereby to procure the miscarriage of a woman pregnant or supposed by him to be and that such miscarriage was not necessary to save her life.

2. Abortion 11-That an operation was not performed does not cause a lack of proof of the corpus delicti.

that the size of the placenta showed that the In a prosecution under G. L. 7013, evidence alleged operation was not performed, and the fact that the woman had a fali which might have resulted in a miscarriage, does not cause a lack of proof of the corpus delicti, since the statute does not require an operation or even a miscarriage.

3. Abortion 11-Knowledge of accused of pregnancy and intent proved by circumstantial evidence.

Knowledge of the accused of the woman's pregnancy and the intent with which medicine was given could be proved by circumstantial evidence.

4. Criminal law 510-Evidence of an accomplice does not have to be corroborated. The testimony of an accomplice does not have to be corroborated in order to sustain a conviction.

5. Criminal law 507 (7)-One responsible for pregnancy is an accomplice in abortion prosecution.

In an abortion prosecution against a physician, one who was responsible for girl's pregnancy, took her to defendant's office, and paid the bill was an accomplice, and his testimony must be so considered.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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