Chase v. Watson
75 Vt. 385
Vt.
1903
Check Treatment
Start, J.

It was within the discretion of the Court below to allow an amendment of the defendants’ notice of special matters in defense, and, it not appearing that there was an abuse of that discretion, error does not appear. V. S. 1148; Bent v. Bent, 43 Vt. 42. For a like reason, error does not appear in the denial of the plaintiff’s motion- for a continuance of the cause.

The citation to appear at the taking of the depositions of Mr. and Mrs. Boardman did not contain the name of the magistrate before whom they were to be taken, as is required by V. S. 1264; and for this reason, the depositions were properly excluded. St. Johnsbury v. Goodenough, 44 Vt. 663.

The record of a petition for a re-survey of the road, and of a survey made by the selectmen, before the time of the alleged assault, was properly received in evidence upon the question of malice, notwithstanding the record was not accompanied by evidence showing the existence of a pent road which could be re-surveyed. The record w<as not received for the purpose of showing that the road was legally laid out and established, but for the purpose of showing a situation that might justify the jury in finding that the defendants acted *388without malice in driving upon the land for the purpose of clearing the road of obstructions. A re-survey of a highway is authorized by V. S. 3294, only when the highway has previously been laid out and surveyed, and the survey has not been properly recorded, or the record preserved, or its terminations and boundaries cannot be determined. Therefore, the fact that a re-survey had been made, which could not have been lawfully made without first ascertaining that a 'highway had been previously laid out and surveyed, if known to the defendants, had a bearing upon the question of their good faith, and might rightfully affect the question of exemplary damages. The Court instructed the jury that if they found that the public had acquired by prescription the right to use the locus in q%w as a pent road, the plaintiff would have no rig-ht to obstruct the passage of the public by putting wagons across the pent road, or otherwise; and, if he did thus obstruct the way, the selectmen of the town had a right to remove such obstructions, and', if the plaintiff undertook to' prevent their removal, they would 'have a right to prevent his doing so, using no more force than was reasonably necessary under the circumstances. In this there was no error. It is the duty of selectmen) to remove obstructions from the highway, and in doing so they may use such force as is reasonably necessary for that purpose. V. S. 3508, 3509, 3510.

The plaintiff excepted to the charge of the Court upon the subject of a settlement with one Foster. The evidence is not referred to* and there is nothing before us from’ which we can say that the evidence did not call for the instruction given. Therefore error does not appear.

The plaintiff’s exception to the refusal of the Court to grant a dose jail execution is not sustained. No facts are found and placed upon the record from which we can say, as *389a matter oí law, that a, certificate ought to have been granted. Without such facts, we cannot say that the refusal to grant the certificate was error. Styles v. Shanks, 46 Vt. 612.

Judgment affirmed.