VERGE

criminal cases, but they are not obliged in any case to do so; Cooley, Const. Lim. 398.

The jury have an option, instead of finding the negative or affirmative of the issue, as in a general verdict, to find all the facts of the case as disclosed by the evidence before them, and,

after so setting them forth, to conclude to the following effect: "that they are ignorant, in

VERIFICATION (Lat. verum, true, facio, to make). In Pleading. An averment by the party making a pleading that he is prepared to establish the truth of the facts which he has pleaded.

Whenever new matter is introduced on either side, the plea must conclude with the verification or averment, in order that the other party may have an opportunity of answering it; Dougl. 60; 2 Term, 576; 1 Saund. 103, n. 1. This applies only to pleas. Replications and subsequent proceedings for counts and avowries need not be verified; Co. Litt. 362 b.

point of law, on which side they ought upon those facts to find the issue; that if upon the whole matter the court shall be of opinion that the issue is proved for the plaintiff, they find for the plaintiff accordingly, and assess the damages at such a sum, etc.; but if the court are of an opposite opinion, then they find vice versa. This form of finding is called a special verdict. In practice they have nothing to do with the formal In one instance, however, new matter need preparation of the special verdict. When it is not conclude with a verification, and then agreed that a verdict of that kind is to be given, the pleader may pray judgment without it: the jury merely declare their opinion as to any for example, when the matter pleaded is fact remaining in doubt, and then the verdict is adjusted without their further interference. It merely negative; Willes, 5; Lawes, Pl. 145. is settled under the correction of the judge, by The reason of it is evident: a negative rethe counsel and attorneys on either side, accord-quires no proof; and it would, therefore, be ing to the state of the facts as found by the jury, impertinent or nugatory for the pleader, who with respect to all particulars on which they pleads a negative matter, to declare his readihave delivered an opinion, and, with respect to ness to prove it. other particulars, according to the state of facts which it is agreed that they ought to find upon the evidence before them. The special verdict, when its form is thus settled, is, together with the whole proceedings on the trial, then entered on record; and the question of law, arising on the facts found, is argued before the court in bane, and decided by that court as in case of a demurrer. If either party be dissatisfied with their decision, he may afterwards resort to a court of error; Steph. Pl. 113; 1 Archb. Pr. 189; 3 Bla. Com. 377.

There is another method of finding a special verdict this is when the jury find a verdict generally for the plaintiff, but subject nevertheless to the opinion of the judges or the court above on a special case, stated by the counsel on both sides, with regard to a matter of law; 3 Bla. Com. 378. And see 10 Mass. 64; 11 id. 358. A juror may dissent at any time from a verdiet to which he had before agreed until the same is recorded; 15 Am. L. Rev. 423.

The usual form of verification of a plea containing matter of fact is, "And this he is ready to verify," etc. See 3 Bla. Com. 309.

In Practice. The examination of the truth of a writing; the certificate that the writing is true. See AUTHENTICATION.

VERMONT. One of the New England states. Its name is derived from the Green Mountains, which traverse the state from north to south.

HISTORY.-The early history of Vermont is peculiar and unique. Its territory was originally claimed, under conflicting and ambiguous titles from the crown of Great Britain, by both New York and New Hampshire. Claimed on the one side as within the established boundaries of the province of New Hampshire, it was granted in townships to the first settlers, by Benning Wentworth, governor of that province. Claimed on the other hand to be covered by the charter of Charles II. to the Duke of York, the Wentworth grants were treated by the New York authorities as void, and the lands were re-granted to other parties, under the New York title. Which of these titles was in law the best, was never judicially determined. And as a century of undisturbed possession has now superseded them both, the question is no longer important. The better opinion appears to be in favor of the claim of New Hampshire.

Where a jury being equally divided in opi nion come to an agreement by lot, it was formerly held that its verdict was legitimate; 1 Keble, 811; but such verdicts are now held to be illegal, and will be set aside. The "quotient" ver lict is so called from the fact that the jurors, having agreed to find for the plaintiff, further agree that their verdict shall be in such sum as is ascertained by each juror privately marking down the sum of money to which he thinks the plaintiff entitled, the total of these sums being divided by twelve. This method is exceedingly The early settlers of Vermont, who were emicommon in actions for unliquidated damages, grants from Massachusetts and Connecticutand is almost universally con lemned, the ground mainly the latter-took possession under the of the objection being that such an agreement New Hampshire title. The settlements comcuts off all deliberation on the part of the jurors, menced about 1764, and rapidly increased, and and places it in the power of one of their num- the state was first called New Connecticut. A ber by naming a sum extravagantly high or conflict of jurisdiction and of title immediately ridiculously low to make the quotient unrea- sprang up. Surveys were attempted to be made sonably large or small; Thomp. & Merr. Juries, and settlements established under the New York §§ 408, 409; 6 Smed. & M. 55; 1 Wash. Ty. titles, and many ejectment suits were 329; s. c. 31 Am. Rep. 808. But where the cal-menced at Albany against the settlers in possesculation is purely informal, for the purpose of sion, judgments were recovered, and process isascertaining the sense of the jury, the objection sued to carry them into effect. The oflicers and is obviated, and the verdict will stand; 1 Humph. claimants were, however, in every instance driven 399; 93 Ill. 410. See Lor; JURY. off by the inhabitants, the process of the courts resisted until service of it became impossible, of that province set at defiance and successfully and the possession under the New Hampshire grants was maintained. Finally, in 1771, a bod'

VERGE. An uncertain quantity of land, from fifteen to thirty acres. Toml. See COURT OF THE MARSHALSEA; VIRGA.

com

of militia were sent from New York to aid the sheriff in executing a writ of possession, but were overpowered and returned without effecting their purpose.

The struggle between the authorities of New York and the inhabitants of Vermont continued for more than ten years preceding the commencement of the Revolution. It forms an interesting and romantic chapter in early American history, and will be found narrated with fulness and accuracy in Hiland Hall's Early History of Vermont. (Munsell, Albany, 1868.) Through the whole controversy the Vermonters, who were organized in a simple way for mutual protection, maintained a condition of practical independence, acknowledging general allegiance to the British Crown, but otherwise self-governed and self-sustained.

At the outbreak of the Revolution the people of Vermont joined their brethren in the contest, though independent of the federal government. In 1777 they declared their territory to be "a free independent jurisdiction," and adopted a constitution which with subsequent amendments is still the constitution of the state. Under this constitution the state maintained its government and its independence for fourteen years, until its admission to the Union, by act of congress, in 1791.

GOVERNMENT.-The institutions of Vermont were modelled in large part from those of Connecticut. They are characterized by great simplicity and economy. The offices are few, of short tenure, small compensation, simple duties, and no patronage.

a majority of the house of representatives, shall be entered on the journal, and submitted to the next legislature. If then adopted by a majority of both houses, they shall be submitted to a vote by the freemen of the state; and if they receive a majority of votes, they become part of the constitution.

THE EXECUTIVE POWER of the state is vested in the governor, lieutenant-governor, and treasurer, who are elected by the freemen bi-annually. The governor receives a salary of $1000 per annum without other allowances; he has no power of appointment to office except of his own secretary, unless in case of vacancies occurring during the recess of the legislature, and then only to fill such vacancies until the legislature convenes; he signs bills passed by the legislature, and has a veto power; but if the bill vetoed is again passed by a majority of both houses, it becomes a law; and unless the bill is returned by the governor within five days after its presentation to him, it becomes a law, unless the legislature adjourns within three days after such presentation. He has power to grant pardons except in cases of impeachment, with the penalties of which he cannot interfere, and of treason and murder in which he may reprieve but not pardon until after the next session of the legislature, and cannot commute; he may lay embargoes or prohibit the exportation of commodities in the recess of the legislature, for a period not exceeding thirty days; may convene the legislature in special session; and is commander-in-chief of the forces of the state, but may not command in person except when advised thereto by the senate, and then only so long as they shall approve thereof. The lieutenant-governor presides over the senate, and in the absence or disability of the governor acts in his place. The treasurer has charge of the finances of the state. All other state officers are elected by the legislature.

The original constitution was prefaced by a "declaration of rights," which still remains a part of it. In addition to the usual guarantee of the right to life, liberty, property, justice, trial by jury, freedom of speech, of the press, of popular assembly, and of elections, it prohibits slavery, secures liberty of conscience and of worship, and absolute equality of civil rights, to all persons, without the distinction of religious THE LEGISLATIVE POWER is exercised by a belief, restricts the application of martial law to senate of thirty members, elected by the counthose in actual military service, prohibits the sup- ties in proportion to population, each county pression of the writ of habeas corpus, and sub-electing at least one; and by a house of repreordinates the military to the civil power. The sentatives of about two hundred and thirty memconstitution further declares, that, "as every free-bers, of whom each town in the state elects one man to preserve his independence (if without a sufficient estate) ought to have some profession, calling, trade, or farm, whereby he may honestly subsist, there can be no necessity for, nor use in, establishing offices of profit, the usual effects of which are dependence and servility unbecoming freemen in the possessors or expectants, and factious contention and discord among the people. But if any man is called into public service to the prejudice of his private affairs, he has a right to a reasonable compensation; and whenever an office, through increase of fees or otherwise, becomes so profitable as to occasion many to apply for it, the profits ought to be lessened by the legislature. And if any officer shall wittingly and willingly take greater fees than the law allows him, it shall ever after disqualify him from holding any office in this state, until he shall be restored by act of legislature." (Art. 25.)

Every man of the age of twenty-one years, born in the United States or naturalized, who has resided one year in the state, is of quiet and peaceable behavior, and takes the oath of allegiance, becomes a freeman of the state.

The constitution was amended in 1786, 1793, 1828, 1836, 1850, and 1870. Under its present provisions it may be amended in the following manner: The senate, by a two-thirds vote, may propose amendments, which, if concurred in by

and no more. Impeachments are voted by the house of representatives, tried by the senate, conviction had only by vote of two-thirds, and the penalties extend only to removal from office and disqualification for future office. But the judgment constitutes no bar to a prosecution at law.

THE JUDICIARY POWER is vested in a supreme court, courts of chancery, county courts, probate courts, and justices of the peace. The supreme court consists of a chief justice and six assistant justices, who are elected by the legislature biennially. It holds one term each year in every county in the state, and one general term of the whole court each year at the capital for hearing causes of special importance. It has original jurisdiction in cases of mandamus, quo warranto, and petitions for new trials, and appellate jurisdiction from all final decrees in the courts of chancery, and by writ of error on exceptions upon questions of law in all cases in the county courts. The courts of chancery are holden twice a year in each county by a justice of the supreme court, and have the general powers of the English courts of chancery. The county courts are holden twice in each year in every county by a justice of the supreme court and two assistant judges elected by the people

783

By an act of congress, approved July 29, 1850, VETO (Lat. I forbid). A term including it is provided that any person, not being an ow- the refusal of the executive officer whose asner, who shall on the high seas, wilfully, with sent is necessary to perfect a law which has intent to burn or destroy, set fire to any ship or been passed by the legislative body, and the other vessel, or otherwise attempt the destruction of such ship or other vessel, being the pro-message which is usually sent, stating such reperty of any citizen or citizens of the United fusal and the reasons therefor. States, or procure the same to be done, with the intent aforesaid, and being thereof lawfully convicted, shall suffer imprisonment to hard labor

the same after its passage, unless it be subsequently enacted by a vote of two-thirds of each house. U. S. Const. art. 1, § 7. When a bill is engrossed, and has received the sanction of both houses, it is transmitted to the president for his approbation. If he approves of it, he signs it. If he does not, he sends it, with his objections, to the house in which it originated, and that house enter the objections on their journal and proceeds to reconsider the bill. See Story, Const. § 878; 1 Kent, Comm. 239. Similar powers are possessed by the governors of many of the

states.

The veto power of the British sovereign has not been exercised for more than a century. It was exercised once during the reign of Queen Anne. 10 Edinburgh Rev. 411; Parks, Lect. 126. But anciently the king frequently replied, Le roy s'avisera, which was in effect withholding his assent. In France the king had the initiative of all laws, but not the veto. See 1 Toullier, un. 39, 42, 52, note 3.

VEXATION.

The injury or damage which is suffered in consequence of the tricks

of another.

VEXATIOUS SUIT. Torts. A suit which has been instituted maliciously, and without probable cause, whereby a damage has ensued to the defendant.

complete although the detention may have been momentary and the party released on bail; Carth. 416. Second, when the bill of indictment contains scandalous aspersions likely to impair the reputation of the accused, the damage is complete. See 12 Mod. 210; 2 B. & Ald. 494; Dowl. & R. 669. Third, notwithstanding his person is left at liberty, and his character is unstained by the proceedings (as, where the indictment is for a trespass, Carth. 416), yet if he necessarily incurs expense in defending himself against the charge, he has a right to have his losses made good; 10 Mod. 148, 214; Gilb. 185. Fourth, if a master loses the services and assistance of his domestics in consequence of a vexatious suit, he may claim a compensation; Hamm. N. P. 275.

With regard to a damage resulting from a civil action, when prosecuted in a court of competent jurisdiction, the only detriment the party can sustain is the imprisonment of his person, or the seizure of his property; for, as to any expense he may be put to, this, in contemplation of law, has been fully compensated to him by the costs adjudged; 4 The suit is either a criminal prosecution, a Taunt. 7; 1 Mod. 4; 2 id. 306. But where conviction before a magistrate, or a civil ac- the original suit was coram non judice, the tion. The suit need not be altogether with- party, as the law formerly stood, necessarily out foundation: if the part which is ground- incurred expense without the power of remuless has subjected the party to an inconve- neration, unless by this action; because any nience to which he would not have been ex-award of costs the court might make would posed had the valid cause of complaint alone been insisted on, it is injurious; 4 Taunt. 616; 4 Co. 14; 1 Pet. C. Č. 210; 4 S. & R. 19, 23.

To make it vexatious the suit must have been instituted maliciously. As malice is not in any case of injurious conduct necessarily to be inferred from the total absence of probable cause for exciting it, and in the present instance the law will not allow it to be inferred from that circumstance, for fear of being mistaken, it casts upon the suffering party the onus of proving express malice; 2 Wills. 307; 2 B. & P. 129. But see what Gibbs, C. J., says, in Berley vs. Bethune, 5 Taunt. 583; sec, also, 1 Pet. C. C. 210; 2 Browne, Penn. Apx. 42, 49; Add. Penn. 270.

It is necessary that the prosecution should have been carried on without probable cause. The law presumes that probable cause existed until the party aggrieved can show to the contrary. Hence he is bound to show the total absence of probable cause; 5 Taunt. 580; 1 Camp. 199. See Dowl. Parl. Cas. 160; 1 Torm, 520; Bull. N. P. 14; 4 Burr. 1974; 2 B. & C. 693; 4 Dowl. & R. 107; 1 Gow, 20; 1 Wils. 232; Cro. Jac. 194. He is also under the same obligation when the original proceeding was a civil action; 2 Wils. 307; but see MALICIOUS PROSECUTION.

The damage which the party injured sustains from a vexatious suit for a crime is either to his person, his reputation, his estate, or his relative rights. First, whenever imprisonment is occasioned by a malicious unfounded criminal prosecution, the injury is

have been a nullity. However, by a late decision, such an adjudication was holden unimpeachable, and that the party might well have an action of debt to recover the amount; 1 Wils. 316. So that the law, in this respect, seems to have taken a new turn; and perhaps it would now be decided that no action can under any other circumstances but imprisonment of the person or seizure of the property be maintained for suing in an improper court. See Carth. 189.

See, in general, Bacon, Abr. Action on the Case (H); Viner, Abr. Action (H_c); Comyns, Dig. Action upon the Case upon Deceit; 5 Am. L. J. 514; Yelv. 105 a, note 2; Bull. Nisi P. 13; 3 Selw. N. P. 135; Co. Litt. Day's ed. 161, n.; 1 Saund. 230, n. 4; 3 Sharsw. Bla. Com. 126, n.; MALICIOUS PROSECUTION.

VEXED QUESTION. A question or point of law often discussed or agitated, but not determined or settled.

VI ET ARMIS (Lat.). With force and arms. See TRESPASS.

VIA (Lat.). A cart-way,-which also includes a foot-way and a horse-way. See WAY.

VIABILITY (from the French vie).* Capability of living. A term used to denote the power a new-born child possesses of continuing its independent existence.

That a child may be viable, it is necessary that not only the organs should be in a normal state, but likewise all the physiological and pathological causes which are capable of op

VIABLE

posing the establishment or prolongation of its life be absent.

VICE. A term used in the civil law and in Louisiana, by which is meant a defect in a Although a child may be born with every thing; an imperfection. For example, epiappearance of health, yet, from some malfor- lepsy in a slave, roaring and crib-biting in a mation, it may not possess the physical power horse, are vices. Redhibitory vices are those to maintain life, but which must cease from for which the seller will be compelled to necessity. Under these circumstances, it can- annul a sale and take back the thing sold. not be said to exist but temporarily,-no Pothier, Vente, 203; La. Civ. Code, art. 2498 longer, indeed, than is necessary to prove that -2507. a continued existence is impossible. It is important to make a distinction between a viable and a non-viable child, although the latter may outlive the former. The viable child may die of some disease on the day of its birth, while a non-viable child may live a fortnight. The former possesses the organs essential to life, in their integrity; while the latter has some imperfection which prevents the complete establishment of life.

As it is no evidence of non-viability that a child dies within a few hours of its birth, neither is it a proof of viability if a child appears to be well and the function of respiration be fully established.

There are many affections which a child may have at birth, that are not necessarily mortal: such as transposition of some of the organs, and other malformations. There are also many diseases which, without being necessarily mortal, are an impediment to the establishment of independent life, affecting different parts of the system: such as inflammation, in addition to many malformations. There is a third class, in which are many affections that are necessarily mortal: such as a general softening of the mucous membrane of the stomach and intestines, developed before birth, or the absence of the stomach, and a number of other malformations. These distinctions are of great importance; for children affected by peculiarities of the first order must be considered as viable; affections of the second may constitute extenuating circumstances in questions of infanticide; while

those of the third admit of no discussion on the subject of their viability.

The question of viability presents itself to the medical jurist under two aspects: first, with respect to infanticide, and second, with respect to testamentary grants and inheritances. Billard on Infants, translation by James Stewart, M.D., Appendix; Briand, Méd. Lèg. 1ère partie, c. 6, art. 2. See 2 Savigny, Dr. Rom. Append. III., for a learned discussion of this subject.

VIABLE (Lat. vitæ habilis, capable of living). A term applied to a child who is born alive in such an advanced state of formation as to be capable of living. Unless he is born viable, he acquires no rights, and can

not transmit them to his heirs, and is considered as if he had never been born.

VICARAGE. In Ecclesiastical Law. The living or benefice of a vicar: usually consisting of the small tithes. 1 Burn, Eccl. Law, 75, 79.

VOL. II.-50

ral.

VICE-ADMIRAL. The title of an officer

in the navy: the next in rank after the admiHereafter vacancies occurring in the grades of admiral and vice-admiral in the motion or in any other manner; and when United States navy shall not be filled by prothe grade itself shall cease to exist; R. S. § the offices of said grades shall become vacant,

1362.

VICE-CHANCELLOR.

A judge, as

sistant to the chancellor. He held a separate court, and his decrees were liable to be reversed by the chancellor. He was first appointed 53 Geo. III. In 1841 two additional vice-chancellors were appointed; and there were then three vice-chancellor's courts. Sharsw. Bla. Com. 54, n.

3

There is also a vice-chancellor of the county palatine of Lancaster; 3 Steph. Com. 331. By the Judicature Act of 1873, the vice-chancellors are transposed to the high courts of justice and appointed judges of the chancery division. On the death or retirement of any one of them, his successor will be styled a judge of her majesty's high court of justice.

There is one vice-chancellor of the court of justice in Ireland. Whart. Lex; Moz. & W. See CHANCELLOR; CHANCELLOR'S COURTS IN THE TWO UNIVERSITIES.

VICE-CONSUL. An officer who performs the duties of a consul within a part of the district of a consul, or who acts in the place of a consul. See 1 Phill. Ev. 306;

CONSUL

VICE-PRESIDENT OF THE UNITED STATES. The title of the second officer, in point of rank, in the government of the United States. He is to be elected in the manmer pointed out under the article PRESIDENT OF THE UNITED STATES. See, also, 3 Story, Const. § 1447 et seq. His office in point of duration is coextensive with that of the president. The constitution of the United States, art. i. s. 3, clause 4, directs that "the vice

president of the United States shall be presiIdent of the senate, but shall have no vote articles 2, s. 1, clause 6, of the constitution, it unless they be equally divided." And by the president from office, or of his death, reis provided that in case of the removal of signation, or inability to discharge the powers and duties of the said office, the same shall devolve on the vice-president."

When the vice-president exercises the office of president, he is called the President of the United States.