French v. Holt
Supreme Court of Vermont
Trespass and Case. Heard on motion to dismiss, May Term; 1880, Windsor County, Barrett, J., presiding. Motion sustained. The case is an appeal from a justice court. The substance of the motion was, that the justice had not jurisdiction, because the title to land was concerned.
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Trespass and Case. Heard on motion to dismiss, May Term; 1880, Windsor County, Barrett, J., presiding. Motion sustained. The case is an appeal from a justice court. The substance of the motion was, that the justice had not jurisdiction, because the title to land was concerned. The first count was in trespass, alleging “that the said defendant, &c., * * * * broke and entered the plaintiff’s close, and tore down and left open the plaintiff’s gate, and with cattle and horses trampled down, &c., the grass, crops, and herbage of the said plaintiff,” &c. The second count was in case, alleging, that…
1Opinion of the Court
*190The opinion of the court was delivered by
Rowell, J.
A majority of the court think this judgment should be affirmed.
The second count is in case both in form and substance. The thing complained of is, that defendant “ wilfully left said gate open.” It is not alleged that he opened it, and no such inference can properly be drawn from the allegation that he left it open. It may as well be inferred that in travelling the way he found and left it open, or lawfully opened it to pass through and omitted to 'shut it. In any view, he is charged with a mere non-feasance, and a mere non-feasance is not a…
2Cases cited5 opinions
- Jakeway v. BarrettSupreme Court of Vermont · 1865
- Stoughton v. MottSupreme Court of Vermont · 1853
- Stone v. KnappSupreme Court of Vermont · 1857
- Chadwick v. BatchelderSupreme Court of Vermont · 1874
- French v. HoltSupreme Court of Vermont · 1879
3Cited by8 opinions
- Roy v. PhelpsSupreme Court of Vermont · 1910
- State v. HirschSupreme Court of Vermont · 1917
- Heath v. RobinsonSupreme Court of Vermont · 1903
- Sanders v. PierceSupreme Court of Vermont · 1896
- Gray v. WardCourt of Appeals for the D.C. Circuit · 1916
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