new working capital, and employed the plaintiff ices heretofore set forth, to the great loss and to procure said capital. damage of the plaintiffs."

the defendant Mayo did not in truth and in fact have the authority to represent, bind, and obligate the defendant Radiator Company in the dealings between said Mayo and said plaintiffs, as set forth in the first count herein, then said Mayo willfully, falsely, and carelessly, and with intent to deceive the plaintiffs, did pretend and say to the plaintiffs that he was the duly au- GAGER, J. (after stating the facts as thorized agent and representative of the defend-above). Section 12 of our original Practice ant Radiator Company, with full authority to act for said company in the dealings between him, the said Mayo, and the plaintiffs, as set forth in the first count herein, and did induce the plaintiffs, who relied upon his said false and fraudulent statements and misrepresentations, to perform the acts and render the serv

(106 A.)

nation or settlement of any question involved that he was authorized by the company to therein, to make a party."

Section 3, part 1, of the original rules framed to further the remedial intent of the act, now section 120, p. 238, of the Practice Book, provides that:

"Persons may be joined as defendants against whom the right to relief is alleged to exist in the alternative, although a right to relief against one may be inconsistent with a right to relief

against the other."

make it, and that this, joined with the failure to allege that Mayo was the duly authorized agent, constitutes a failure to state a cause of action against the Radiator Company.

It is true that such an allegation is lacking. Again, the framers of form 15 do not seem to have considered such an allegation necessary.

The third ground of demurrer is that there

is no allegation that the Radiator Company either made or authorized the making of the contract with the plaintiffs, but there is the Form 15 of the Practice Book was furnish- allegation that the company has always deed as a model for invoking relief under this nied the agency. The only new thing here is statute in one class of cases coming within the reference to the denial by the Radiator the purview of the rule. Alternative relief Company. This allegation of denial submay be of two kinds. The more usual is the stantially follows form 15. It is to be obalternative relief based upon an alternative served that an allegation that a claimed construction of the cause of action. Rule 137, principal denies having authorized a claimed Practice Book. The statute and rule under agency is not an allegation that such agency consideration in express terms make the relief was not authorized in fact. In short, all the alternative with respect to the defendants. reasons of demurrer here taken might equally The phase of alternative relief based upon an well be taken against form 15. The real alternative construction of the cause of question then is whether any of the allegaaction and the remedial features of the Prac- tions shown by the demurrer to have been tice Act relating thereto were fully discussed omitted are essential to a good complaint in the oft-cited case of Craft Refrigerating brought under the provisions of section 5641 Machine Co. v. Quinnipiac Brewing Co., 63 of the Statutes and section 120 of the Rules. Conn. 551, 29 Atl. 76, 25 L. R. A. 856. The The notion at the basis of the demurrer statute (section 5641), relating to joinder of seems to have been that the complaint must parties defendant, has frequently been dis- contain affirmative and categorically certain cussed by this court. We may refer to Fair- allegations that each of the defendants is field v. Southport National Bank, 77 Conn. liable. This is claimed specifically in behalf 423, 59 Atl. 513. But the specific question of of the Radiator Company, and the notion is the character and certainty of the allegations necessary to bring a case within the rule 120 equally applicable to Mayo. If the reason is does not seem to have been presented, nor do sound, Mayo might have demurred because we recall any case where a complaint calling it was not alleged that he was in fact acting for relief against one or the other of two de- in his individual capacity and not as agent. fendants in the alternative has been specifi- The result would be that it would be imposcally examined by the court upon any question sible to truly state a case coming under this of pleading. The substance of the complaint, rule. It would require the plaintiff to resolve set out fully in the statement of facts, is that the very doubt which the rule authorizes him upon the representation of one defendant, to refer to the court. If the pleader could Mayo, that he was the agent of the other, the honestly allege a positive liability as to eiRadiator Company, the plaintiff procured a ther defendant, the reason for claiming alterpurchaser of the company, its business and native relief as to the defendants would assets, upon the terms accepted by Mayo; cease to exist. The case would not come that thereafter Mayo refused to carry out the within the statute and the rule. The very agreement with the purchaser; that the reason for this form of complaint and prayer Radiator Company denied Mayo's agency; for relief is that the plaintiff, having a single and that the plaintiffs have received nothing cause of action against somebody, does not for their services, though they procured a know which of the two defendants is liable. purchaser satisfactory to Mayo. The de- If he does know he cannot honestly allege murrer sustained is based upon three doubt. The substance of his complaint is grounds: First, that there is no allegation that he is entitled on his facts to relief from that Mayo in fact had authority from the one or the other of the named defendants. Radiator Company to make the contract with The facts are all connected with and arise the plaintiffs. That is true. The utmost the out of a single transaction; a single relief is plaintiffs allege in this respect is that Mayo demanded. Both defendants are interested represented that he had authority. Such was adversely to the plaintiffs and adversely to thought a sufficient allegation by the framers each other. There cannot, paraphrasing the of form 15. The second ground of demurrer language of section 5641, be a complete deis that there is no allegation that the Radia- termination or settlement of the questions intor Company made the contract with the volved in the single transaction set out in plaintiffs, but only that Mayo represented the complaint without bringing in both par

ties, one of whom is upon the allegations [osition as stated by Mellish, L. J., and Cockcertainly liable. The precise incidence of the relief claimed in an action of this sort, as well as the right to any relief, is to be determined by the court.

This kind of an action is one of the directly intended results of what is sometimes called the Reformed Procedure. Section 13 of the Schedule to the original English Judi. cature Act of 1873, L. R., the statute (Vol. VIII, 1873, p. 352) provides that:

*

burn, C. J., above. This procedure appears to be limited as to the jurisdictions in which it prevails. Note 51, L. R. A. (N. S.) p. 640. However limited the jurisdictions in which this method of joining defendants may be adopted, the statute and the rule are perfectly definite and clear, reasonable, and workable.

The defendant does not, indeed, in the demurrer now before us, specifically attack the theory of the act. The reason we have referred briefly to the history of this procedure is to show that it appears, from the very language adopted, that the theory of a complaint of this sort is doubt, lack of certainty, as to which of two or more parties is liable, united with certainty as to a single transaction in

"Where in any action, whether founded on contract or otherwise, the plaintiff is in doubt as to the person from whom he is entitled to redress, he may join two or more defendants, to the intent that in such action the question as to which, if any, of the defendants is liable, and to what extent, may be deter-volving the liability of one or the other. The mined as to all parties to the action."

This section became section 6, order XVI. in the schedule of rules of court adopted by

Parliament in the amendment to the Judicature Act of 1875 (Statutes 1875, p. 792), and has continued to be the rule in England to the present time. Of this legislation Mellish, L. J., in Honduras Railway Co. v. Tucker, L. R. 2 Ex. Div. 1876-7, p. 306, said:

"There can be no question that the intention of the Legislature was that it should not be necessary for a plaintiff to bring an action first against A., and then against B., and to run the

risk of the jury taking a contrary view of the evidence in the two cases; but that he should have both defendants before the court at once, and try it out between them."

In the same case, which was one of disputed agency, Cockburn, C. J., said:

Judicature Act says when the plaintiff "is in doubt as to the person from whom he is entitled to redress"; the Rhode Island Act uses the same language. R. I. Gen. Laws 1909,

supra.

in doubt," but the words "alleged to exist Our rule does not use the expression in the alternative," coupled with the lanthe plaintiff is uncertain as to which is realguage of the statute, necessarily imply that ly liable. If the theory of the joinder is uncertainty as to the incidence of the liability, then all that the plaintiff can be required to do is to state the facts as and to the extent that he knows them, from which it inevitably follows that neither defendant can complain that the allegations against it are not more certain than the actual situation renders possible.

[1] We think that form 15 and the count demurred to are not open to the objections taken by the demurrer, and that the demurrer to the first count should have been overruled. In the present case a count of an amended complaint was first successfully demurred to, whereupon the plaintiff filed an entire substituted complaint in two counts. The plaintiff bases one ground of appeal upon error in sustaining the demurrer to the amended complaint.

"But here we have a claim for redress against two persons arising out of a common transaction, to which both of them are alleged to have been parties against the one as principal if the agent had authority to bind him, against the other, who professed to be an agent, if he acted without authority. What the plaintiffs complain of is the nonperformance of a contract. If their claim is against Lefevre, it is because the contract is broken; if it is against Tucker, it is also because the contract has failed and [2] That demurrer is not before us. Whenremains unfulfilled. The only difference is that, although the redress claimed is the same, if there ever, after a demurrer sustained, the comhad been separate actions the process would plaint or pleading demurred to is amended have been different in the two actions. In the or a substitute filed, that demurrer, and the one it would have been on the contract; in the pleading to which it relates, are taken out other, on the special ground that the defendant of the case. The filing of the amendment or professed to have authority which he had not, substitution, as the case may be, is a withand so the contract failed. But whatever course drawal of the first. Boland v. O'Neil, Adm., was pursued the redress would, in both cases, 72 Conn. 220, 44 Atl. 15; Goodrich v. Stanton, have been for damages arising out of nonper-71 Conn. 418, 42 Atl. 74; Mitchell v. Smith, formance of the contract." Sanderson v. Blyth Theater Co. [1903], 2 K. B. 533.

The rule above quoted from the Judicature Act was in substance adopted by statute in Rhode Island, in 1876, and is section 20, c. 283, Revision of 1909. Phenix Iron Foundry v. Lockwood, 21 R. I. 556, 45 Atl. 546. Our Practice Act of 1879, and the rule quoted above, give full force and effect to the prop

74 Conn. 127, 49 Atl. 909; Pettus v. Gault, 81 Conn. 418, 71 Atl. 509.

[3, 4] The present complaint is in two counts. The first count, already described, having been held bad as not stating a cause of action against the Radiator Company, the Radiator Company moved for judgment in its favor, and the court granted the motion, and final judgment was rendered in favor of this

(106 A.)

1120(6)—QUESTIONS REVIEWABLE- - ADMISSIBILITY OF EVIDENCECONCLUSIONS OF WITNESS.

On appeal it cannot be held error to overrule objection to a question calling for a conclusion, where question was merely introductory and intended to direct attention of witness to matters presently inquired about, and witness testified immediately following in detail, the record not showing whether or not she did or could state fully all the facts upon which the conclusion was based, the appellate court not being able to determine whether the case fell within the exception to the general rule that permits a witness, after stating what he had observed so far as practical, to add his opinion or conclusion.

defendant. But the complaint contained a sec- made complaint to third person is admissible ond count, in which were all the allegations in corroboration of her testimony, regardless of the first count, with a further allegation of the question of consent. that, if the Radiator Company did not au- 4. CRIMINAL LAW thorize Mayo as its agent, then Mayo was guilty of deceit. This second count only differs from the first in labeling the obligation of Mayo as grounded in deceit. Two counts were quite unnecessary to furnish the basis for the alternative relief sought. The whole case against both defendants was in the second count, and still remained for determination, and judgment should not, upon that state of the pleadings, have been rendered in favor of the Radiator Company, letting it out of the case entirely. This is not assigned as error; but the result necessarily follows from the fact that the second count, containing the whole case, remains to be answered to, and the rendering of judgment was an erroneous application of the ruling upon the demurrer to a single count. Apparently the parties and the court all treated the first count as directed against the Radiator Company, and the second count as against Mayo, while in fact each count was directed to both defendants, and a second count was surplusage.

There was error in sustaining the demurrer to the first count of the substituted complaint and in rendering judgment upon the whole case in favor of the defendant Radiator Company.

The judgment is reversed, and the case remanded to be proceeded with according to law.

The other Judges concurred.

(93 Vt. 142)

STATE v. GILE. (No. 125.)

5. CRIMINAL LAW 361(1) — EXPLANATORY EVIDENCE.

In a prosecution for statutory rape, where the mother of prosecutrix and wife of accused testified that she had spoken but once to the respondent respecting his conduct toward the prosecutrix, and was thereupon asked why she did not speak to him more, to which she replied, "Because I was afraid of him," the reply was admissible to explain the conduct of the mother in failing to do what was natural for a mother to do under such circumstances. 6. RAPE 43(2)— EVIDENCE OF COMPLAINANT.

-

APPEARANCE

In a prosecution for rape, a witness to whom the prosecutrix entered her complaint was properly asked how the prosecutrix appeared at the time of making the complaint; the rule not being limited to the time before the complaint is made.

7. CRIMINAL LAW 378-REPUTATION-REBUTTAL EVIDENCE.

Where an accused, in introducing evidence (Supreme Court of Vermont. Windsor. Feb. as to his reputation, did not confine his ques25, 1919.) tions to the time before the charge for which

1. CRIMINAL LAW 1036(1), 1044-MATTERS he was being prosecuted was made, the state

REVIEWABLE-EXCEPTIONS.

Where a witness volunteered an additional statement after the court had ruled that what she had previously said might stand, and the court promptly checked the witness, there was nothing on which to predicate error as far as the volunteered statement was concerned, where such statement was not objected to and no motion was made to strike it out.

2. CRIMINAL LAW 693, 696(5)—MOTION TO STRIKE OUT EVIDENCE - PREVIOUS OBJECTION.

An objection to an answer and a request to have it stricken out was too late and unavailing, where the answer was responsive to the question, no objection having been made to the question before answer.

3. RAPE 48(1) EVIDENCE COMPLAINT— CORROBORATION OF PROSECUTRIX.

In a prosecution for statutory rape and assault with intent, evidence that prosecutrix

was not required to confine its questions concerning reputation to any period of time.

Exceptions from Windsor County Court; Fred M. Butler, Judge.

George Gile was convicted of an assault with intent to commit rape, and he excepted. No error.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Argued before WATSON, C. J., and HASELTON, POWERS, TAYLOR, and MILES,

JJ.

William S. Pingree, State's Atty., of White River Junction, for the State.

Gilbert A. Davis, of Windsor, for respond

ent.

MILES, J. This is an information in two counts, charging the respondent in the first count with statutory rape and in the second count with an assault with an intent to com

mit rape. The exceptions refer to the transcript and make the same controlling, but we have not been furnished with it, and have only such portions of it as are furnished by the stenographer under the rules of the county court.

did you do while telling her this story?" The witness answered: "I was sitting in the sitting room with her." The question was objected to on the ground that the state's attorney could not go into detail. After the said: "I object further to this line of evianswer was given the respondent's counsel dence on the ground that, this being statutory rape, the element of consent is not in it, and this line of evidence is only admitted in this class of cases on the question of con

sent."

[1] The first exception briefed by the respondent is to a question asked the prosecutrix, who had testified to an assault made upon her by the respondent, on a certain night, and to certain acts of the respondent on that occasion. The question objected to was as follows: "Now, in the morning did you say anything to anybody about that?" The witness answered: "I told my mother." Thereupon counsel for respondent said: "I object." To this the court said: "It may stand." To this the respondent's counsel said: "Exception for the defendant." The witness said: "That I was not going to sleep with him any more." Immediately thereupon the court said: "You needn't say what you told her." No other objection was made to this evidence, and no exception was noted. In substance, the respondent's assignment of error goes to the statement volunteered by the witness, which the court promptly checked. The statement was not objected to; and, in the absence of a motion to strike it out, there is nothing on which to predicate error. [2] The prosecutrix was further asked by the state's attorney, what the respondent said to her on a certain occasion, to which she replied: "He told me he was going to take me and the woman on the hill. I asked him who it was, and he said it was Helen. He was going to take her and I, and leave my mother and the children, and take me to Canada or Florida, and I was going to stay with him and do as he told me." After the answer was given, respondent's counsel said: "We object to that, and ask to have it strick-pear whether she did or did not, nor whether en out, it has nothing to do with the case." The court ruled that it might stand, and gave the respondent an exception. The answer was responsive to the question, and the objection and exception were too late and unavailing. State v. Fitzgerald, 72 Vt. 142, 47 Atl. 403; State v. Powers, 72 Vt. 168, 47 Atl. 830; State v. Ward, 61 Vt. 185, 17 Atl. 483. The prosecutrix, after telling, without objection, to a Mrs. Burnham, about acts of

[3] The first ground of objection is disposed of by what followed; for it is not shown that the witness went into detail after the objection was made, and as to the second ground it is enough to say that evidence that the prosecutrix made such complaint is admissible in corroboration of her testimony, regardless of the question of consent. State v. Wilkins and Bow, 66 Vt. 1, 28 Atl. 323. This case, where the issue of consent was not in dispute, fully settles the law in this state upon that point. See, also, State v. Niles, 47 Vt. 82; State v. Knapp, 45 N. H. 148. Besides this objection was made after the answer was given, and the answer being responsive to the question, the objection came too late.

[4] The mother of the prosecutrix and wife of the respondent, having testified to indecent acts of familiarity on the part of the respondent toward the prosecutrix on a certain occasion, was asked: "I ask you whether there was another occasion, or any other occasion through the year of 1917 and up to January 1918, when you saw anything that you regarded as wrong on his part toward the daughter?" Respondent's counsel ob| jected that it called for her inference. The objection was overruled, and an exception noted. The witness answered: "During the summer months I have seen him do things I thought he ought not to do." In the circumstances, the exceptions do not show reversible error. The question called for a direct answer. While it embraced a conclusion, it was merely introductory, and was intended to direct the attention of the witness to matters presently inquired about. Immediately following the answer now complained of, the witness testified somewhat in detail as to what she had observed; but it does not ap

she could state fully all the acts, looks, motions, or signs observed by her, indicating his designs, whether evil or otherwise. We cannot say that this case does not fall within the exception to the general rule that permits a witness, after stating what he had observed so far as was practicable, to add his opinion or conclusion. In re Clogston's Will, 92 Vt. 106 Atl. 594; 2 Jones on Ev. § 360.