The action is for the recovery of damages for an alleged assault upon the plaintiff’s wife, which it is claimed caused her death. The defendants, among other things, justified under a replevin writ. The amended bill of exceptions, which was properly substituted for the one first filed, did not require the defendants to- furnish a transcript of the record referred to the original bill of exceptions, and there was no occasion for their doing so.
The defendants asked a witness who- was present at the time the child was born, what was said when Mr. McKinstry was in the room, in relation to' the child’s breathing or gasping when it was born. The Court excluded this question, and the defendants excepted. The question was not accompanied by an offer to show any fact, nor does it appear what the answer would have been if taken; therefore, error does not appear. State v. Noakes, 70 Vt. 256, 40 Atl. 249. Mrs. Widber was called by the defendants. On cross-examination, it appeared that she was present at the former trials and was not called as a witness. The defendants then offered to show by her that the plaintiff’s counsel knew, at the time of the former trial, that she was at the plaintiff’s house during Mrs. McKinstry’s illness. It appeared from her testimony that this fact was known to the plaintiff, and the question of whether his counsel knew was immaterial. A witness, called by the plaintiff, testified, that, on the evening of the day the defendants were at the plaintiff’s house, defendant Collins told him that he took the plaintiff’s wife and slapped her up against
It appeared from the cross-examination of the plaintiff that he had entered a plea of guilty of an assault upon defendant Collins on the occasion in question, and that he testified on the former trial, that, when he did SO', he understood he was pleading to a charge for resisting an officer. Subject to the defendants’ exception, the plaintiff was allowed toi testify to the circumstances under which he entered the plea and what he then understood his plea of- guilty referred to. In this there was no error. The fact that the plaintiff had pleaded guilty to a charge of resisting an officer, or of assaulting Collins, on the occasion in question, tended to discredit the testimony given by him; and, as bearing upon the force and weight to be given to his plea of guilty, it was competent to show the circumstances and conditions under which he entered
As tending to show that the plaintiff’s wife died of pneumonia, the defendants offered in evidence a certified copy of the record of the certificate of her death, in which was stated, among other things, that the cause of her death was pneumonia. The offer was excluded and the defendants excepted. In this there was no error. Since we held in this case that such certificates were evidence of the cause of death, as reported in 74 Vt. 147, the Legislature has changed the law, by No. 44 of the Acts of 1902, which provides that no public record of births, marriages or deaths required by law to be kept, nor any certified copy thereof, shall be competent evidence in the trial of any suit now or hereafter pending to prove any fact stated therein, except the fact of birth, marriage or death. There is no vested right in a rule of evidence. Such rules only affect the remedy, and it is within the constitutional power of the Legislature to modify or limit their effect, as was done by the act in question. 6 Am. & Eng. Ency. Law, 2 Ed. 950; Richardson v. Cook, 37 Vt. 605; State v. Welch, 65 Vt. 55, 25 Atl. 900.
The Court instructed the jury to answer the following question: “Did Collins have a completed bond before he delivered the colt to Lovell?” To1 this question the jury answered, “No.” The defendants excepted to the Court sub-miffing this question to the jury. The Court could, in its discretion, take an answer to this question, so that it could be seen whether the instruction, for the purposes of the general verdict, respecting the taking of a bond before delivering the property to the plaintiff, if wrong, harmed the defendants.
The Court also' instructed the jury, that, in order to replevy the colt, the law required Collins to take possession of it, so that it could be appraised or its value agreed upon, and then take a bond from the plaintiff to the defendant; that the law required him to do this before turning the colt over to the plaintiff; that, if he did this,'or in good faith intended to take such bond before turning the colt over to' the plaintiff, he was proceeding regularly; and that he had a right, if he was proceeding regularly, to take the colt into his possession in the first place, in order to make an appraisal of it or have an agreement as to its value. The instruction excepted to presents the question of whether it is necessary for an officer, when serving a replevin writ, to take a bond from the plaintiff in the writ to the defendant before delivering the property replevied to the plaintiff. V. S. 1472, requires an officer, before serving a replevin writ, to take a bond from the plaintiff to the defendant. This imposes upon him the duty of
In Eastman v. Barnes, 58 Vt. 330, 1 Atl. 569, Taft, J., in delivering the opinion of the Court, said: “The security taken by way of bond in replevin is a substitute for the propterty, and the defendant is entitled to such security at the time his property is taken; if he does not get it then, he never may; and the defect cannot be cured by filing a bond subsequently.” In Walcott v. Mead, 12 Met. 516, it is held that the officer may commence the service of a writ of replevin before taking a bond from the plaintiff, doing only so1 much, however, as is necessary to effect an appraisement of the value, preparatory to taking a bond. He has no authority for delivering the property to the plaintiff to be taken into custody, until the plaintiff has given the bond required by the statute; but the writ may be delivered to' the officer, and he may begin to execute it, proceeding only so- far as is requisite to enable him to take a proper bond. The form for a replevin writ prescribed in V. S. 5417, form 11, commands the ¡officer to replevy the property and deliver it to- the plaintiff
The defendants insist that there was no- evidence in the case to submit to the jury upon the question of whether Collins had a completed bond at the time he delivered the property. It does not appear that this precise question was raised in the Court below. It does not appear that the defendants asked for such a ruling, nor that they excepted because the Court did no-t so rule. But the defendants did request the Court to charge, that the sufficiency of the writ or bond is not to be tried in this case; that, if there was any defect or insufficiency in the writ or bond in the replevin case, that question should have been tried in that case; and that the return on the writ imports absolute verity and cannot be inquired into or contradicted in this case. These requests were
The defendants asked for the following instruction: “That the legal presumptions are that Collins did not commit any assault, and that he discharged his duty in the serving of his process as he was commanded in his process to. do, and that presumption stands with him until it is overcome by evidence.” To¡ the refusal of the Court to comply with this request, the defendants excepted. This request is sound in law. That part of it which asked for an instruction, that it is presumed that Collins did not make an assault, states a rule of general application in civil cases, where a person is charged with fraud, dishonesty or crime. In the case at bar, the defendants were charged with an assault and battery, which, under our statute, is a criminal offense. Such being the nature of the charge, there was a legal presumption that the
Judgment reversed, and cause remanded..