54 Vt. 459 | Vt. | 1882
The opinion of the court was delivered by
I. On the facts found by the County Court, the deposition of F. X. Massey was properly excluded. Having been taken on a day other than the day named in the citation, it stood the same as if taken without notice, unless a legal continuance is to be presumed. But no presumptions are made in favor of the regularity of the proceedings resulting in the taking of deposition further than what appears in the caption. It is only by force of the provisions of the statute that depositions are admissible in evidence, and then only when taken in compliance with those provisions. It is not contended that this deposition is taken according to the provisions of the statutes of this State, as in such a case the continuance, if one was had, shoúld appear in the caption ; but it is contended that inasmuch as they are to be admitted in evidence, if taken according to the laws of the State in which they are taken (R. L. s. 1025), and this deposition was taken in the State of Colorado, it is to be presumed, that the laws of Colorado provided for a continuance of the taking without that fact appearing in the caption. From the statement in the exceptions it does
II. The testimony of both parties was to the effect that the assault grew out of the attenipt of the defendant to throw some slab-wood from the plaintiff’s sled. The plaintiff’s testimony tended to show that this slab-wood belonged to him ; and also that the defendant made the first assault. The testimony of the defendant tended to show that this slab-wood was his property, and that he commenced to throw the same from the plaintiff’s sled, where it had just been placed by the plaintiff, whereupon the plaintiff assaulted the defendant, and that he then acted in self-defence. The slab-wood was in the defendant’s mill-yard, and the plaintiff was there with his team and sled to draw it away. If the wood was the property of the plaintiff, it does not appear how it came in the defendant’s mill-yard, but presumably from logs which he had drawn to the defendant’s mill to be manufactured. Under this state of the evidence the plaintiff requested the court to charge the jury that: “ If they find that Johnson owned the wood he would have the right to go into the mill-yard, or mill premises, and take it way ; and if defendant resisted him, Johnson would have the right to use such force as was necessary to take the wood, and if Perry interfered with him to prevent his taking the wood, he became the aggressor, and liable for the injuries to Johnson in so doing.”
The court declined to charge in accordance with this request; but told the jury that if the property was in the possession of the defendant, the plaintiff would have no right to assault him for the purpose of getting it, and said : “ So you will first determine who had the actual possession of this wood about which the parties were in controversy. If the defendant had it and he first made the assault, and it was committed in defence of his possession, and
Although it does not appear how the wood — if the plaintiff’s property — came to be in the defendant’s mill-yard, yet on the authority of Richardson v. Anthony, it would seem, the presumption would be, that it was without the plaintiff’s fault rather than the reverse. We are aware that, by Judge Isaac E. Bedfield, in the opinion in Dustin v. Cowdry et al., 23 Vt. 631, the decision in Hodgeden v. Hubbard et al. and Yale v. Seeley et al., are somewhat criticised, although not overruled. On the doctrine of these cases the plaintiff was entitled to have his request, complied with, if the additional qualification be added, that he was without fault
The judgment is reversed, and the cause remanded.
