Redfield et al. v. Dana et als.

H. W. Heaton and J. O. Livingston, for the defendants Dana and Burnham, cited Smith v. Watson, 14 Vt. 332.

The opinion of the court was delivered by

Ross, J. It appears from the facts stated by the auditor, that the plaintiffs at the time they entered upon the employment for which recovery is sought, knew the relations which the defendants Dana and Burnham sustained to the school district and to the suit in which their services were to be performed. The plaintiffs do not claim that these two defendants rendered themselves liable by reason of claiming to have authority to employ them on behalf of the district when they had no such authority. Their claim is that Dana and Burnham, in connection with Nelson, employed them to perform the services for which they have charged, on their joint credit. Dana and Burnham were not interested in the event of the suit against Nelson more than the other tax-payers of the district; nor were the plaintiffs' services in that suit directly beneficial to them. Hence, no promise to pay for the plaintiffs' services in that suit can arise by implication of law. To entitle the plaintiffs to recover against Dana and Burnham, they must show that Dana and Burnham expressly agreed to be responsible for the payment of their charges in the suit, or that they so conducted themselves in making the employment that the plaintiffs, as prudent men, had a right to and did understand that they would be responsible for the payment for their services in the suit against Nelson. The facts reported by the auditor, we think, fail to establish an employment in the suit by Dana and Burnham, either on their own behalf and credit, or, on their credit, in behalf of Nelson or the school district. Judgment affirmed.

State v. Parker.

STATE OF VERMONT v. JEROME B. PARKER.

Larceny. Sufficiency of Indictment.

In larceny of a feather bed, it is sufficient on motion in arrest, that the indictment describe the property as one feather bed."

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INDICTMENT FOR LARCENY. The indictment described the property stolen as "one feather bed." Trial by jury and verdict of guilty, September term, 1873, PECK, J., presiding. The respondent moved in arrest of judgment for that the indictment did not describe the property alleged to have been stolen, with sufficient definiteness and particularity. Motion overruled and indictment adjudged sufficient. Exceptions by the respondent.

L. L. Durant, for the respondent.

W. P. Dillingham, state's attorney, for the state.
The opinion of the court was delivered by

Ross, J. The only question raised by the motion in arrest is, whether the property stolen is described with sufficient definiteness in the indictment. We think the description is sufficiently definite. Persons of common apprehension of the meaning and use of language, understand that by "a feather bed," is meant a single article, composed of a quautity of feathers enclosed in a bed tick. It is as much a single article as very many things which are composed of different materials, but which have a definite use. To ordinary people, no more definite idea of the property stolen would have been conveyed, if the pleader had been to the trouble of stating the exact number, color, and kind of feathers, and the exact number, length, size, and material of the threads in the tick. We do not think the description is open to the charge of being a "lumping description" of the property stolen; nor, that the respondent labored under any inconvenience in preparing his defence, from an inability to understand from the description the precise thing, the stealing of which he was charged with.

The judgment of this court is, that there was no error in the proceedings of the county court, and that the respondent takes nothing by his exceptions.

DAVID H. GILMAN ET ALS. v. THE TOWN OF Westfield.

Laying Out and Establishing Highways.

A highway may be laid and established in one town, solely upon the petition of residents thereof, although the only land and premises interested in the construction of the road, are situate in an adjoining town.

PETITION to the county court for laying out a highway in the town of Westfield, terminating at the Troy line. The commissioners found that the public good and the convenience and necessity of individual inhabitants, required the road; and they accordingly laid out the same, and reported that the only land or premises interested in the construction thereof, were situated in the town

Gilman et als. v. Westfield.

of Troy; that the road was wholly in the town of Westfield; and that the petitioners all resided in Westfield.

The court, at the September term, 1873, REDFIELD, J., presiding, accepted the report and established the highway, and fixed a time for the payment of land damages and the opening of the road for work and its completion. To the acceptance of the report and the establishment of the road, the defendant excepted.

W. D. Crane, for the defendant.

If this road is established and built, it will neither accommodate or benefit any property in Westfield, and will accommodate and benefit lands in Troy alone. The question fairly raised by the report is, are towns legally bound to build and maintain pent roads for the sole accommodation of lands entirely without their chartered limits, and within the chartered limits of an adjacent town? The defendant denies such liability, and claims that it is liable to build and maintain roads only in cases where "land and premises" within its own limits are interested and benefited thereby. This is a case for which provision is made in §54, ch. 24, of the Gen. Sts., and if the road is to be built and maintained, it should be done at the joint expense of Westfield and Troy.

J. T. Allen, for the plaintiffs.

The petition does not ask for a highway to be laid out of the county of Orleans, nor the town of Westfield. Such being the fact, there cannot be anything to defendant's objection. Moore et als v. Chester, 45 Vt. 505.

This is a proceeding under our Gen. Sts., and is in all things in strict conformity thereto. Sec. 44, ch. 24.

The commissioners find that the public good and the convenience and necessity of individual inhabitants, require the construction of the highway. This finding is conclusive. Londonderry v. Peru, 45 Vt. 424.

The owners of land must, in some fair way, have access to them for themselves and their cattle, both in summer and winter. Paine v. Leicester, 22 Vt. 44. If defendant town felt oppressed, and thought the town of Troy ought to contribute to the

Gilman et als. r. Westfield.

expense of building this highway, the statute points out the way the question can be settled. Gen. Sts. § 65, ch. 24. And this relief can be obtained after the road is laid out and built, but not in this proceeding.

The opinion of the court was delivered by

BARRETT, J. The persons petitioning both the selectmen and the county court, were freeholders of the town of Westfield, and they were asking to have a highway laid out within that town. The commissioners, for the cause prescribed by the s'atute, laid out the highway asked for. It is shown by the report "that the only land or premises interested in the construction of the road, lie in the town of Troy." It is claimed that this fact excludes the case from the scope and operation of the statute authorizing and providing for the laying out of highways by the present proceeding. We have not been pointed to, nor have we discovered, any specific provision to this effect. If such result is to be asserted and maintained, it must be by construction, and by deduction from provisions of the statute in other respects, touching the laying out of highways. "The convenience of the inhabitants and the public good,” constitute the occasion and the final cause of the laying out, expressed in § 1, ch. 24, Gen. Sts. In § 21, the ground is specified on which the selectmen are to act in the given case, viz: "If they shall judge the public good, or the necessity or convenience of individuals, shall require such highway to be laid out," &c. The ground of action is the same when the case proceeds in the county court. Now it is to be noticed that the statute does not designate where persons shall be located, in order to enable them to help constitute the public whose good may constitute cause and occasion for laying out a proposed highway. Nor does it define any required location of individuals whose necessity or convenience shall require the road to be laid out. It only defines what condition of persons may be proper petitioners, and in what town the proposed road is to be located. It is quite conceivable, and perhaps this case may illustrate, that sometimes the public whose good is to be served, and the individuals whose necessity or convenience is to be ministered to, may require a highway out