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threatened and intended, and the taking of
the water through it, would be such to the
orator as to entitle him to the preventive
remedy of an injunction.” 14
The last of Chief Judge Isaac Redfield’s
seven cavils (and the first to be reported
here, as we are walking back in time) is in-
spired. In it, Redfield invokes Shakespeare.
In Conant v. The Bellows Falls Canal Com-
pany (1857), he quotes Hotspur, from Hen-
ry IV, who is arguing with Owen Glendower
over Hotspur’s plan to change the course
of the river Trent to gain more land. When
Glendower relents, Hotspur, ever a brava-
do, says,
I do not care. I’ll give thrice so much land
To any well-deserving friend;
But, in the way of bargain, mark ye me,
I’ll cavil on the ninth part of a hair. 15
fendant, who used a motor vehicle, not a
carriage, and sought to escape the license
requirements of the ordinance. “The two
sections, taken together, constitute the or-
dinance, and, when read together, there is
no room for cavil.” 11 He needed a license.
Superior Judge Alfred A. Hall, sitting on
the Supreme Court due to a conflict or va-
cancy on the court, in Shum’s Adm’x v. Rut-
land R. Co. (1908), found he needed to dis-
sent from the majority. The case involved a
claim for damages by the administratrix of
a man killed in a train accident by a “wild
engine,” running at 60 m.p.h without a
headlight at 5:00 p.m on January 3, 1904.
The case turned on the eyewitness testi-
mony of two women, who saw the incident
from a window of a house near the tracks,
evidence that Judge Hall thought not very
satisfactory, given their vantage. He also
believed the jury could have found the in-
testate guilty of contributory evidence, had
the trial court not directed a verdict for the
railroad, based on the conclusion that the
man failed to look and listen. “The fact is
beyond cavil,” he wrote, “that no one saw
him when decedent could have seen or ap-
prehended danger.” 12 There should be no
recovery, according to Judge Hall.
Forty-five years earlier, Judge Asa Al-
dis used the word in Crosby v. School Dist.
No. 9 in Readsboro (1863), a case for wag-
es brought by a school teacher. Construing
the statutory basis for the claim, Judge Al-
dis wrote, “It is of no avail to say that the
act does not in terms say that the teach-
er shall forfeit his wages; and therefore in-
voke the doctrine of a strict construction,
as against forfeiture. The meaning of the
statute is too plain for cavil. Call it by what-
soever name it may please any one to do,
the provision is express, that the teacher
is to perform the prescribed duty before
receiving his wages.” 13 Since the teacher
had failed to perform, no wages were due.
Cavil here is dismissive. “Too plain to cav-
il” condemns the caviling of advocates who
try to make something out of nothing.
Judge James Barrett used the word in
his majority opinion in Lyon v. McLaughlin
(1859). This was a fight between businesses
relying on hydropower to run their mills. “If
the facts set out in the bill,” he wrote, “and
admitted by the answer, show a case with-
in the cognizance of the court of chancery
for the purpose of granting a perpetual in-
junction, it would hardly seem warrantable
to cavil upon the point made that the facts
stated in the bill are not sufficiently authen-
ticated by the oath of the orator. If the de-
fendant does not own the portion of the
dam claimed by him, and so has not the
right to insert a flume in it, but is limited
to the taking of his share of the water from
the flume already existing, then it would
remain for determination whether the inju-
ry produced by the insertion of a flume, as
Cavil here is more serious than a quibble.
It is a full force threat to be as adversarial as
possible in negotiation. Conant had a con-
tract with the canal company to let him use
the hydro power from a dam to operate his
machinery. A dispute arose when the Ca-
nal company shut off the water to Conant’s
mill, in favor of power to a nearby grist mill,
which the company treated as having a su-
perior right to that of Conant. The agree-
ment was silent on priorities for water. Dis-
missing the defendant’s claim that Conant
had once or twice agreed to turn off his wa-
ter in favor of the grist mill, Redfield wrote
this “might be attributable to courtesy as
well as submission to a superior right.” 16
Then he added Hotspur’s boast, as a kind
of punctuation mark. At that point in the
decision, it was clear that Conant would
prevail. The company had failed to per-
suade the court.
Redfield defended his court in Davis &
Aubin v. John Bradley & Co. (1855) from
the charge that a prior decision in the same
matter the year before was extra-judicial
and mere obiter dictum, as the arguments
by Judge Pierpoint Isham went beyond the
claims made by counsel for the appellant.
“That might have been sufficient,” wrote
the Chief Judge, “but it was no means so
entirely free from all cavil, as the reason
urged by the learned judge, which, so far
from being his own individual speculation,
was the very ground, and the chief ground
upon which the case was rested by the dif-
ferent members of the court at the consul-
tation, and is too well and too convincingly
stated, to require any attempt at support
or commendation from me.” 17
A fabricated deposition, according to
Redfield in State v. Williams (1855), “is al-
ways regarded as an inferential admission
of guilt, although not of a conclusive char-
acter.” But if the evidence is doubtful, “it is
entitled to no weight. To be entitled to any
force, as it is only circumstantial, and col-
lateral to the main issue, its truth should be
THE VERMONT BAR JOURNAL • WINTER 2016-17
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