Volume 49 — Vermont Reports

Assumpsit upon a promissory note. At the September Term, 1875, the defendant Hubbard moved to dismiss the- action, for that national banks could not maintain actions in the state courts, and that the United States courts alone had jurisdiction of such actions. The other defendants were defaulted. Motion overruled, and judgment for plaintiff. Exceptions by Hubbard. cited Sts.

Audita Querela to set aside the judgment of a justice of the peace. Plea, the general issue, and trial by the court, September Term, 1875, Redfield, J., presiding.

Trespass for two robes taken under tax-bill and warrant. Trial by the court upon an agreed statement of facts., at the March Term, 1876, Redfield, J., presiding.

<p>Replevin for five cows. Plea, not guilty, and trial by jury, September Term, 1875, Redeield, J., presiding. The plaintiff offered evidence tending to show that the defendant put said cows into the barn and barn-yard of the pound-keeper, near the pound, and gave the plaintiff notice that he had impounded them ; that the plaintiff found them in the barn and replevied them. The defendant then offered testimony tending to prove that his and the plaintiff’s lands were separated only by a fence belonging in part to him and in part to the plaintiff to maintain ; that his part thereof was good, but that the plaintiff’s part was out of repair, and that plaintiff’s cattle got through plaintiff’s part, and did damage in defendant’s inclosure : that there was no legal pound in town, and that he drove the cows to the pound-keeper, and put them under his care, and that within twenty-four hours thereafter he gave the plaintiff notice that he had impounded them in the barn-yard of the pound-keeper. To the admission of that testimony the plaintiff seasonably objected, for that, as the defendant had not filed an avowry, he could not introduce evidence of justification, but was confined to evidence in support of the plea denying the taking. The court overruled the objection, pro forma, and admitted the testimony ; to which the plaintiff excepted.</p> <p>The plaintiff, among other things, requested the court to order a verdict lor the plaintiff, for that the defendant’s evidence was improperly admitted, and that upon proof of the taking of .the cattle he was entitled to judgment. But the court refused, and directed a verdict for the defendant; to which the plaintiff excepted.</p> <p>cited Gen. Sts. c. 35, s 1, et seq.; Loop v. Williams, 47 Vt. 407 ; 1 Chit. PI. 499.</p> <p>cited Gen. Sts. c. 35, s. 1, et seq. ; Plainfield v. Batohelder, 44 Vt. 9 ; Hotchkiss v. Ashley, 44 Vt. 195 ; Loop v. Williams, 47 Vt. 407.</p>

Trespass qua. elau. Plea, the general issue, and trial by the court, September Term, 1875, Redfield, J., presiding.' It appeared that the plaintiff purchased the premises in question on May 3,1869, and took a deed thereof, with condition that upon payment of the purchase money, the title should become absolute in him ; that on November 25, 1870, the defendant and his brother purchased the notes named in the condition of said deed; that afterwards the plaintiff and his wife…

Case under s. 13, c. 20, Gen. Sts., for the support of Hannah Parker, an alleged transient pauper. Plea, the general issue, and trial by the court, August Term, 1875, Redfield, J., presiding.

Case for conspiracy to defraud the plaintiff by selling him a sick cow.

Case for injury upon a highway. The case was fried at the September Term, 1875, Redfield, J., presiding, on an agreed statement of facts.

<p> Tender. Costs. </p> <p>When suit is being brought to recover a sum due on book, a tender of the sum due. with the interest thereon, is good, if made before service of the writ, although the writ be then issued and in the hands of the officer for service, no costs being taxable until service has been made.</p>

Assumpsit upon a warranty in the sale of a clap-board planer. Plea, the general issue, and trial by jury, September Term, 1873, Redfield, J., presiding.

<p> Abatement. General Issue. Husband and Wife. Right of Wife to Sue in her own Name. </p> <p>Mere matter of abatement is not available on trial under a plea to the merits. Thus, where plaintiff, a married woman, brought trover in her own name by next friend, aud defendant pleaded the general issue, it was held that neither her capacity to sue in her sole name, nor the technical propriety oí suing by next friend, could be made the subject oí question on trial under that plea.</p> <p>A count in trover beginning with the expression, “who, being a married woman, and her husband separate from her,” in description of the plaintiff, but in other respects in common form, held good on motion in arrest, as not showing that plaintiff had not such title as might give her a right of recovery for a wrongful conversion in an action improper form as to parties plaintiff.</p>

<p>Assumpsit upon a subscription paper. Pleas, the general issue and set-off, with notice of special matter. Trial by jury, March Term, 1876, Redfield, J., presiding.</p> <p>It appeared by said paper that the subscribers thereto severally promised to pay the stewards of the Methodist Episcopal Church in the village of Montpelier, or their authorized agent, the sums by them severally subscribed, for the purpose of building a new house of worship in said village. The original writ described the plaintiffs as “ stewards of the Methodist Episcopal Church in the village of Montpelier.” Upon trial before the justice, the plaintiffs moved to amend the writ by inserting the names of three other stewards of said church as co-plaintiffs, and the words, “ a corporation organized under the laws of the state of Vermont, for the support of the gospel, located at Montpelier.” To that amendment the defendant objected, but it was allowed. The de-. fendant renewed his objection on trial in the County Court, but the court overruled it; to which the defendant excepted. It appeared that those named as plaintiffs in the writ as amended, were not all stewards of the church at the time said subscription was made, and that there were others not named in the writ who were stewards at that time ; and the defendant claimed that the suit should have been brought by the former stewards, and not by the plaintiffs ; but the court ruled that the plaintiffs might maintain the suit; to which the defendant excepted.</p> <p>It appeared that one Holman, who,obtained said subscription, was, at the time it was made, in charge of the work upon the seminary building then being erected in Montpelier, and was afterwards in charge of the work on said church ; that the defendant was engaged by said Holman to work, and that he did work, upon said seminary building, and that he also worked a little after said subscription was made, in getting out materials for the church building, but that he was afterwards discharged by said Holman ; that at the time the subscription was made, the proposed new church had not been located, there had been no vote to build it, and no building committee had been elected; and that neither said Holman nor any one else had any special authority to contract for labor on said church building, other than would arise from his relation to the church and the subsequent adoption of the subscription by the society.</p> <p>The defendant offered parol evidence tending to show that he was induced to make said subscription by an agreement of said Holman in behalf of the plaintiffs, that if the defendant would subscribe he should have employment on the seminary and the new church buildings until they should be completed, and that he might pay his subscription in work in the winter season. To the admission of this evidence the plaintiffs objected ; but the court admitted it.</p> <p>The court directed a verdict for the plaintiffs for the amount of the subscription and the interest thereon, and the jury found for the sum of $95. The court also left it to the jury to find, first, whether said Holman agreed on behalf of the plaintiffs in consideration of said subscription that the defendant should be employed upon said buildings until they should be completed; and, secondly, whether the defendant’s service in said employment was terminated by said Holman wrongfully and without sufficient cause. The jury found in the affirmative upon both points, with damages for the defendant to the amount of $95. The coui’t rendered judgment, pro forma, for the plaintiffs ; to which the defendant excepted.</p> <p>cited Middlebury College v. Williamson, 1 Vt. 212-; Fmerson v. Wilson, 11 Vt. 357 ; Powelton Coal Co. v. MeShain, 75 Pa. 238 ; Benshaw v. Graves, 7 Barr, (Penn. State) 117 ; Bathe-man v. Pierce, 3 Hill, 171; Millj. Mooney, 30 Ga. 413 ; Branch et al. v. Wilson, 12 Ela. 543.</p> <p>cited Gen. Sts. c. 90, s. 13, et seq.; Jones v. Webber, 1 D. Chip. 215 ; Bradley v. Bentley, 8 Vt. 243 ; Isaacs v. FIJcins, 11 Vt. 679 ; Blodgett v. Morrill, 20 Vt. 509 ; Bowman v. Stowell, 21 Vt. 309; Conn. <f Pass. Bivs. Bailroad Co. v. Bailey, 24 Vt. 465 ; Lewis el al. v. Locke, 41 Vt. 11; Groot v. Story, 44 Vt. 200 ;' Admr. of Wood v. Shurtleff, 46 Vt. 325 ; Anderson et al. v. Brock, 3 Greenl. 243.</p>

<p>Case for false warranty of a yoke of oxen. Plea, the general issue, and trial by jury, September Term, 1875, Redfield, J., presiding.</p> <p>The second count alleged that the defendant offered to sell the plaintiff a yoke of oxen; that thereupon the plaintiff told the defendant that, having the care of a farm occupied by an aged man and his crippled son, he wished to' buy a yoke of well-broken, orderly, and peaceable oxen, such as might be safely used by the occupants of said farm; that the defendant, then well knowing the said oxen to be wild, disorderly, and hard to yoke, falsely and fraudulently warranted them to be peaceable, orderly, well-broken oxen, such as the occupants of said farm could safely use, and such as the plaintiff had described ; that the plaintiff, relying upon said warranty, purchased said oxen and paid the defendant therefor the sum of $147.50 ; that the said oxen were wild, unbroken, and disorderly; that the occupants of said farm could not yoke or use them, and that they were of -no use to the plaintiff as working oxen ; that afterwards the plaintiff offered to return the said oxen and receive his money, but that the defendant wholly-refused. The plaintiff’s evidence tended to support the allegations of the declaration, and especially the allegation that the oxen could not be used on the farm by those occupying it, nor even by experienced hands, and that they were unruly and worthless as working oxen. -The plaintiff offered no evidence as to the value of the oxen or their condition, but claimed to recover the difference between the value of the oxen as they actually were, and their value as it would have been if they had been as they were warranted to be. The defendant offered evidence tending to show that at the time the plaintiff purchased said oxen, their fair cash value, considering their weight and value per pound, was §150. To its admission the plaintiff objected, for that it had no bearing upon the issue. The defendant claimed that evidence of the actual market value of the oxen at the time of the purchase was material. The court said it had no bearing upon the case, but that if the defendant insisted, it might be admitted at the defendant’s peril. The defendant insisted, and it was admitted, to which the plaintiff excepted. The court charged as to the rule of damages in accordance with the plaintiff’s claim as herein stated. Verdict for the defendant.</p> <p>cited Virginia Tennessee R. R. Go. v. Sayers, 15 Am. Law Reg. N. s. 297 ; Hiñe v. Pomeroy et al. 39 Vt. 211, 221; Wood et al. v. Willard et al. 36 Vt. 82.</p> <p>cited Hilliard Rem. Torts, 448 ; Woodward v. Thatcher, 21 Vt. 580.</p>

Assumpsit upon a subscription paper. Plea, the general issue, and trial by jury, May Term, 1876, Powers, J., presiding.

Trover for twenty-one watches. The case was referred, and by the referee’s report the following facts appeared. The plaintiff, a constable, at the suit of one James, attached property of Albert Hodsden, consisting, among other thing's, of several watches, and the defendants receipted it. The suit in which said attachment was made was duly prosecuted to judgment, and the property attached charged in execution and by the plaintiff demanded of the defendants.

<p> Sale. Implied Warranty. Latent Defect. </p> <p>The vendor of an article sold for a particular purpose, does not impliedly warrant it against latent defects to him unknown, and caused by the unskillfulness or negligence of the manufacturer or previous owner, except when the sale is, in itself, equivalent to an affirmation that the article has certain inherent qualities inconsistent with the alleged defects. Thus, when defendant, a machinist and founder, sold a piece of wrought iron shafting, of which he was not the maker, but which he turned and prepared for the reception of pulleys, and which he supposed to be sound, to be used in running machinery in a carriage shop, and the shaft upon being-put to the described use broke because of a flaw and an imperfect weld, it was held that there was no implied warranty of its soundness.</p>

General Assumpsit. The defendant pleaded the general issue, set-off, and a special plea of payment, and gave notice of special matter. The plaintiff joined is.sue on the first plea, replied non assumpsit to the second, and traversed the third. The defendant joined issue on the replication to the second and third pleas.

<p>Case. Tbe first count charged defendant as innkeeper with negligently caring for plaintiff’s horse, whereby it was injured. The second count charged him with negligence in that behalf as bailee for hire. Plea, the general issue, and trial by jury, February Term, 1875, Redfield, J., presiding, and verdict for plaintiff.</p> <p>It appeared that the house where defendant lived on January 15, 1873, when plaintiff’s horse was injured, was originally built for a hotel, and as such was kept open many years by its former occupants, among whom was defendant; that in connection with this house was a dancing hall, the only one in the neighborhood, and that the young people of the neighborhood were accustomed to assemble at the defendant’s house, sometimes without notice to him and sometimes upon his invitation, for the purpose of dancing and social entertainment; that on the occasion in question, defendant had given out that he would furnish music and«oysters for an entertainment, and that the bill therefor would not exceed two dollars per couple, and that, with others, the plaintiff went to defendant’s house and participated in the entertainment, and paid a bill of |1.50 to the defendant.</p> <p>Defendant gave evidence tending to prove, that on this and former occasions it was the custom for those attending the entertainments to either take care of their own'horses, or assist therein.</p> <p>It appeared that on this occasion quite a large party were present, and that the stables were filled with horses before plaintiff’s arrival; that parties arriving, assisted by those apparently in defendant’s employ, had commenced putting horses into the floor of the barn upon the premises, and that plaintiff’s horse was put in the floor, but it did not appear who hitched* it there. The plaintiff testified, among other things, that he accompanied his team to the yard, and there left it in charge of two boys, who, the testimony tended to show, were then in defendant’s employ.</p> <p>It appeared that several horses were hitched in the barn floor with plaintiff’s horse, and that rails and slabs were placed between them to keep them apart. It also appeared that only a few of the many horses there that night were fed grain, and ihose only at the special request of those with them. The defendant gave evidence tending to show that the plaintiff, assisted by one of defendant’s servants, obtained some grain and went where his horse was hitched in the barn floor, and fed it, and that he went directly to his horse, as though he knew where it was.</p> <p>Plaintiff gave evidence tending to show that he did not know where his hoi'se was hitched, and did not see it from the time he left it in the yard till it was being hitched up, when it was discovered to be lame; that on said 15th of January, and before the plaintiff arrived at the defendant’s house, .another guest had come with a horse that was in the habit of kicking other horses, and that said guest informed the defendant’s servants that it would not be safe to hitch his horse near any other horse ; and that plaintiff’s horse was hitched by defendant’s servants next to the horse that had the habit of kicking. The jury found specially, that defendant, on said 15th of January, was the keeper of a common inn.</p> <p>The court defined and explained to the jury what would constitute an innkeeper, or keeper of -a “ common inn,” in a manner satisfactory to both parties, to which no exception was taken.</p> <p>It also appeared that when the plaintiff’s horse was taken from the floor, it was quite lame in one of its hind legs, but that it was hitched, and driven by plaintiff, accompanied by his wife, about two miles and a half, when the leg in which it was lame was broken, and the horse rendered worthless.</p> <p>Defendant requested the court to charge the jury that if they found that the plaintiff knew where his horse was — that he was hitched in the barn floor with other horses, and himself fed his horse grain while thus hitched, and made no objection to the defendant nor any of his agents or servants because it was so hitched, though his horse was injured while thus hitched, and by reason thereof, defendant 'would not be liable. But the court refused to so charge, but charged that if the jury found that defendant was not an innkeeper, and that plaintiff himself put out his horse, and assumed the sole control, disposition, and care of it, that defendant would not be liable for injury that happened to it while in the floor; and though they found defendant an innkeeper, yet, unless they found that the arrangement in the barn floor with rails and slabs was as safe as stalls, or as safe as ordinary arrangements for keeping horses at hotels and livery stables, and injury happened to the horse while hitched there, defendant would be liable. To the refusal to charge, and to the charge as given, defendant excepted.</p> <p>It appeared that there was at defendant’s house on the 4th of July, 1872, a dance similar to the one on said 15th of January, and that some time in June, 1872, defendant obtained from the selectmen a license to keep a hotel, and defendant testified that he obtained said license for the purpose of protecting himself against possible prosecutions on account of having the party contemplated on said 4th of July, and such as they might thereafter have for the accommodation of the young people in the neighborhood. Defendant also admitted in his testimony that occasionally, though not often, strangers called and asked for lodging and food for themselves and horses, and that he had entertained such, and felt that said license would protect him from prosecution for taking bills for such entertainment, which bills he testified were always very small, usually such as they themselves chose to pay.</p> <p>It appeared that defendant did not have any sign in connection with his house, and plaintiff gave uo evidence tending to show that defendant was an innkeeper, other than as aforesaid, except that it was proved by two witnesses who resided in the neighborhood, that defendant kept them and their horses two and a half days, and received therefor one shilling per meal, and that they fed their horses with their own grain, and nothing was charged for use of barn, and that defendant notified them he could not keep them longer, because his wife was not well. The above was the only instance of entertainment proven as having been furnished by defendant, except on the occasions admitted by the defendant as aforesaid, and the foregoing was all the testimony tending to sl ow that the defendant was an innkeeper on said 15th of January.</p> <p>Defendant requested the court to charge the jury that the defendant was not a common innkeeper ; but the court refused to so charge, but left it to, the jury to find upon the proof whether he was an innkeeper or not. To the refusal to charge as requested, and to the charge as given, the defendant excepted.</p> <p>The court erred in submitting to the jury to find whether defendant was an inkeeper. This is a question of law, and should have been settled by the court. The facts set forth in the exceptions do not constitute defendant a common innkeeper. An occasional entertainment of strangers, as in this case, does not constitute one an innkeeper. State v. Matthews, 2 Dev. & Bat. 424; Lyon v. Smith, 1 Morris (Iowa) 184 ; Parker v. Flint, 12 Mod. 255 ; Thompson v. Lacy, 3 B. & Aid. 283. So a farmer and housekeeper like defendant, who furnishes refreshments, and music for dancing, and stable room for teams, for the accommodation of young people in. the neighborhood, as in this case, is not an innkeeper to whom the common-law liability attaches. Parkhurst v. Foster, 5 Mod. 427 ; s. c. 1 Salk. 387 ; 2 Ld. Raym. 479. The case does not show that defendant held out that he would receive travellers and sojourners, and that he would furnish entertainment for all who called. Nothing short of this would constitute an innkeeper. Thompson v. Lacy, supra; State v. Chamblyss, 1 Cheves (S. C.), 220 ; Wintermute v. Clarke, 5 Sandf. 247 ; Loe v. Laming, 4 Cainpb. 76 ; Bonner v. Welbarn, 7 Ga. 309. A common inn is for strangers, for travellers and wayfarers. Chit. Cont. 414. See Cayle’s Case, 8 Co. 32 a. The several parties mentioned in exceptions did nothing towards constituting defendant an innkeeper’. He was such or not by his entertainment of travellers.</p> <p>Defendant was entitled to compliance with his request, that if plaintiff knew where his horse was, and fed it, and made no objection, he so far assumed the care of it as to excuse defendant from everything but ordinary care. It is tantamount to himself directing the disposition of his horse, and brings the case within the rule of Cayle's Case, 8 Co. 32 a. See also 2 Story Cont. 153, (4th Am. ed.) ; Lansey v. Richardson, 25 Eng. Law <fe Eq. 91; 2 Kent Com. 592, (4th ed.) ; Story JBailm. 478 ; Armistead v. White, 6 Eng. Law & Eq. 349 ; Albin v. Presby, 8 N. H. 408 ; Hawley v. Smith, 25 Wend. 642 ; Burgess v. Clements, 4 M. & S. 306 ; Farnsworth v. Packwood, 1 Stark. 249.</p> <p>Plaintiff was not in defendant’s house as a guest nor as a travellvr, but as a neighbor, for a special .purpose, and under a special previous contract for his entertainment, viz. : that the price was not to exceed two dollars per couple, and no liability attaches except for ordinary care. York v. Grindstone, 1 Salk. *388 ; Jelly v. Clarke, Cro. Jac. 188 ; Jones Bailm. 95, n. 3 ; Berkshire Woolen Co. v. Proctor, 7 Cush. 417 ; Washburn v. Jones, 14 Barb. 193; McDonald v. Fdgerton, 5 Barb. 560; Lawson v. Havre de Grace B%nk, 6 Har. & J. (Md.) 47 ; Grinnell v. Cook, 3 Hill, 485 ; Binns v. Pigot, 9 C. & P. 208 ; 2 Saund. PI. & Ev. 216 ; Thickstun v. Howard, 8 Blackf. 535. See also note to McDaniels v. Robinson, 26 Yt. 342.</p> <p>The evidence upon which defendant’s first request was based, tended to show that plaintiff knew where his horse was hitched, and did not protest against its remaining in that dangerous condition, but did not tend to establish any negligence in the plaintiff without which the injury would not have happened. The plaintiff’s right to recover rested upon the defendant’s liability as an innkeeper. The question then is, whether mere knowledge on the part of the guest, of the condition in which the innkeeper had placed his horse, would exonerate the latter from his liability as such innkeeper. 1. A guest, having placed his goods and chattels infra hospitium, may, as ~to the safely thereof, rest on the protection that the law casts around him 2. In case of damage to goods and chattels so placed, the innkeeper is, prima facie, responsible. 3. If the innkeeper would exonerate himself from this prima facie liability, by reason of the conduct of the guest, he must show some negligence on the part of the guest without which the damage would not have occurred. Gayle’s Case, 1 Smith Lead. Cas. 241, and note ; s. c. 8 Co. 32 a ; Dawson v. Chamney, 5 Q. B. 164; Armistead v. Wilde, 17 Q. B. 260; Gashill-v. Wright, 6 E. & B. 890 ; Bennett v. Mellar, 5 Term, 273 ; Hill v. Owen, 5 Blackf. 323.</p> <p>Again, the-evidence did not tend to show that defendant informed plaintiff where his horse was hitched, and that he must take the risk. To exonerate himself from liability, he should have so informed plaintiff, and then, if plaintiff suffered his horse to be so hitched, the charge requested might have been correct. Jones v. Tyler, 1 A. & E. 522 ; Richmond v. Smith, 8 B. & C. 9.</p> <p>As an innkeéper, defendant was bound to be furnished with suitable stable-room for the horses of strangers and travellers. Gen. Sts. c. 95, s. 4. It was clearly within the province of the jury, under proper instructions, to determine whether defendant’s stable-room yas suitable, and as a guide, they are directed to such accommodations as practical experience had led innkeepers and livery-stable keepers to adopt.</p> <p>It was clearly a question for the jury to determine whether,the defendant was acting as an innkeeper at the time he took plaintiff’s horse, as the testimony tended to show that he was.</p>

General Assumpsit. Plea, the general issue, and trial by the court, February Term, 1876, Redfield, J., presiding.

General Assumpsit. Plea, the general issue, and trial by referee, who reported that the plaintiff did certain work for the defendant in repairing a steam boiler, that with interest on the sum so earned to September 1, 1875, amounted to $35.30 ; that the plaintiff was entitled to recover that sum, unless the five several cash items, amounting with interest thereon to $17.65, that the defendant had' charged on book, and of which he offered evidence, ought to be deducted…

Assumpsit. The referee reported that plaintiff should recover, if anything, the sum of $95.41, but that the defendants contended that he should recover nothing, for that he, with other of defendants’ creditors, had entered into an agreement to accept his prorata'share of $1,200 in discharge of his entire claim ; that, the defendants being insolvent, and nearly all their attachable property under attachment upon a debt due to Luke Buzzell, and other creditors having…

Ejectment for land in Brighton. Ploa, not guiltv, and trial by-jury, 'September Term, 1875, Barrett, J., presiding.

Ejectment for laud in Maidstouc, known as lot No. 64, in the second division. Plea, the general issue, and trial by jury, September Term, 1873, Ross, J., presiding. The plaintiff, to prove his title to the demanded premises, introduced evidence of a land-tax sale thereof by William Rich, a former collector of taxes.in Maidstone, which gave rise to several questions ; but as they are not material to the point decided, they are not stated.

Case for maliciously praying out a writ of attachment. The declaration alleged “ that on, &g., the defendant, maliciously intending to injure and oppress the plaintiff, and cause the waste, loss, and destruction of his property, prayed out a writ of attachment, returnable, &c., and delivered the same to William H. Preston, sheriff, &c., with instructions tp attach all the goods in the plaintiff’s store, restaurant, eating-saloon and fruit-store, in, &c., and not to take any…

Ejectment. The ease was referred by agreement of parties. After hearing before the referees, but before report filed, plaintiff’s attorney made the following entry on the clerk’s docket: “Reference revoked June 7, 1875, before any report. was filed. George W. Cahoon, attorney for plaintiff.” The report was filed June 26, 1875.

Audita Querela to set aside a judgment of a justice of the peace. Plea, not guilty, and trial by the court, December Term, 1875, Ross, J., presiding.

Indictment under s. 44, c. 94, of the Gen. Sts., for knowingly aiding in procuring intoxicating liquor to be disposed of for illegal purposes.

<p>Trustee Process. The commissioner found and reported substantially the following facts:</p> <p>The trustees, wanting work done, wrote to one Ramsey, whom they had employed some, to that effect, and he, being unable to do it, told the defendant about it, saying that he should expect to get $8 a day and his expenses for such work as was to be done, and that if defendant wanted to do the work, he would write the trustees, introducing him, and he did so. The defendant went to do the work, expecting to get $3.50 a day, and began work on June 3, 1873, but made no express contract with the trustees as to the rate a day at which he should be paid, and the trustees did not ask him what he should expect to receive. But on August 1, 1873, defendant notified the trustees that he should ask $3 a day and his board, which was the same as $3.50 a day without board. The trustees did not then say they would give that, but allowed defendant to keep at work until April 29,1874, without anything further being said about wages, and then defendant stopped, having worked two hundred and seventy days, and earned, at $3.50 a day, the sum of $945, which, with $1.25, due to the defendant for his expenses while on a journey for the trustees, made $946. 25, the whole sum due to him. The trustees had paid the defendant $584.74. Trustees also claimed damages occasioned by defendant’s unskillfulness in making lathes, and for the breaking of a chain-lathe. It appeared that the trustees wanted four lathes, such-as upon examination the defendant said he could make, and that defendant was accordingly set at work to make them. He finished one and set it up-; but it would not do the work for which it was designed, and'was worthless. It appeared that the trustees’ foreman and agent, who was skilled in such work, was present while the lathe was being made, and might have corrected defendant’s mistakes, but did not; and that the worthlessness of the lathe was due in part to the faultiness of the plan for its construction prescribed by the trustees, in part to the unsuitableness of the tools and machinery furnished by them for its construction, and in part to the unskillfulness of the defendant! The trustees lost by reason of the defendant’s unskillfulness in that behalf $67.49, and $25 by reason of his carelessness in breaking the chain-lathe — in all, $92.49.</p> <p>The commissioner also reported certain testimony in detail, to his admission of which objection was -made; but as no question was made at the hearing upon the report concerning its admissibility, it is not stated. The court, at the December Term, 1875, Ross, J., presiding, rendered judgment against the trustees for $136.02, and interest thereon from April 29,1874; to which both plaintiff and defendant excepted.</p> <p>cited Willey v. Warden, 27 Vt. 655 ; Graham v. Stiles, 38 Vt. 578; Johnson, admr. v.' Dexter, 37 Vt. 641; Perry v. Whitney, 30 Vt.</p> <p>cited Allen v. Hooker, 25 Vt. 137 ; Smith v. Foster, 36 Vt. 705 ; Andrews v. Eastman et al. 41 Vt. 134.</p>

<p> Landlord and Tenant. Construction of Lease. Right of Lessor to Rent after Eviction. Evidence. </p> <p>In assumpsit for rent, it appeared that the demised premises were described in the lease as “the premises on the corner of College street and Center street recently-occupied by E. Laporte as a Trench hotel. (The joiners’ shops are not included; but when vacated, Kennedy is to have right to either or both at same rent they now draw, payable quarterly in advance) $75 and $112 respectively.’.’ Notice of special matter under the general issue alleged eviction through plaintiff’s neglect properly to drain a cellar under the premises, not included in the lease, whereby the premises were rendered unfit for occupation. In support of the notice, defendant sought to show by parol that the cellar was not occupied by Laporte, and the evidence so offered was admitted, with evidence in rebuttal tending to show that it was occupied by Mm. Held, that the words, “recently occupied, by E. Laporte as a French hotel,” were restrictive of the grant; that the exception of the joiners’ shops did not indicate an intention to pass all else on that corner owned by plaintiff; that the evidence was properly admitted; and that the question of whether or not Laporte occupied the cellar was properly submitted to the jury.</p> <p>The lease provided that defendant should put and keep the place in repair. The court, in charging the jury, after putting several questions to illustrate the meaning of the phrase, “in repair,” said that if the cellar was included in the lease, the fault was the defendant’s if the cellar was not taken care of, provided they found that to drain it was a necessary repair. Held, that the question of whether or not the cellar was in repair was thus submitted to the jury, and that to submit it to them was erroneous.</p> <p>Any default, as well as any overt act of the lessor, that renders the tenement dangerous to the life or health of the tenant, may be treated by the lessee as an eviction. Thus, it was held, that evidence of the lessor’s neglect to drain the cellar was admissible.</p> <p>If the lessor unlawfully evict the lessee Ms right to rent thereupon ceases.</p>

<p> Power of County Court to Revise its Records and Judgments. </p> <p>Judgment for plaintiff by agreement, and bond filed for its payment. Plaintiff’s attorney, by mistake, neglected to make a motion for a certified execution. At a subsequent term, plaintiff filed a motion to have the case brought forward, the judgment vacated, and for a certified execution, and the motion was granted. Held, that the County Court had no power to grant the motion.</p>

<p> Common Carrier. JSvidenee. </p> <p>In case for injury to a passenger upon a railroad, there was evidence tending to show that the defendant company was duly incorporated and organized, and its road constructed and put in operation, and that trains were being run and business transacted upon it, and men were being employed to keep it in repair; that on the day of the accident that occasioned the alleged injury, plaintiff purchased a ticket at a station on a connecting road, from that station to a station on defendant’s road; and that after the train passed onto defendant’s road, the conductor recognized plaintiff’s ticket as entitling him to a ride over said road, taking up the ticket in the usual way, and allowing him to proceed without objection, soon after which the injury was received. Held, that that evidence was proper to submit to the jury as evidence that defendant was at the time of the accident a common carrier operating its road, and had undertaken to transport plaintiff over it.</p> <p>It appeared that at the time of the accident, one of the cars turned over; that that car had no guard chains connecting the truck with the body of the car, such as are usually attached to keep the wheels in the line of motion; and that one side of the truck, being then raised, fell back on the track, and in so falling, caused the alleged injury. Plaintiff claimed that if there had been chains on the car, the truck would not have fallen back, and that defendant was negligent in not having them there. The conductor of the train, who was looking at the car when it went over, was introduced as a witness, and asked if it was his opinion that if there had been chains on the car, the accident would have happened, and he replied that if the chains had been strong enough, and so .attached as to have held the trucks to the car, they would have done so. He was then asked if it was his opinion that if such chains had been on the car as were subsequently put on when the car was repaired, they would have held the truck to the car, and he answered that they would not. Held, that the testimony was not admissible as that of an expert, but that as it was not to the prejudice of defendant, there was no error in its admission upon which defendant could sustain exceptions.</p>

<p>Appeal from the Court of Chancery.</p> <p>The bill alleged, that on January 1, 1865, the orator was owner in fee of one, and the defendant of two, undivided thirds of a lot of land known as lot No. 180 of the second division of lots in the town of Groton ; that the orator and the defendant, being thus tenants in common of said land, were in equity bound to commit no waste ; but that the defendant, not regarding his duty in that behalf, cut and carried away a great'number of logs and a great quantity of lumber, bark, &c.; that although it was his duty to account for one third of the same, yet he had neglected and refused so to do, and had never accounted for any part thereof; and that it would be for the interest of both parties to have the land divided. Prayer for partition, and an account of rents and profits.</p> <p>The answer denied that defendant, on said January 1st, was owner in fee of two-thirds of said lot, and tenant in common thereof with orator, but alleged that on May 9, 1870, defendant purchased the whole of said lot, and took a warranty deed thereof, and hath ever since claimed to be the sole owner thereof; that he and his grantors had occupied, used, and possessed said lot, claiming to own the same, ever since 1849, and that such claim and occupation were open and notorious, and adverse to the orator and all other persons, which the orator well knew; that orator never made claim to any part of said lot till the commencement of this suit, and never had any valid claim thereto, and if he had color of title, the same was defective and invalid ; and denied the commission of the acts upon said lot wherewith he was charged, except a small part thereof.</p> <p>The answer was traversed, and testimony taken. Defendant’s deed of May 9, 1870, purported to convey two'undivided thirds of said lot, and all the title that the grantor had by grant or possession to the whole lot.</p> <p>The court, at the December Term, 1875, Caledonia County, Ross, Chancellor, entered a decree for partition, and appointed commissioners. An accounting was waived. Appeal by defendant.</p> <p>cited Wilkins v. Burton, 5 Vt. 76, 85; Wiswall v. Wilkins, 5 Vt. 87; Qatlin v. Kidder, 7 Vt. 12; Buekmaster v. Needham, 22 Vt. 617,622; Roberts, Admr. v. Morgan, 30 Vt. 319 ; Leach v. Beatties, 33 Vt. 195.</p> <p>cited 2 Bl. Com. 191 et seq.; Doe d. Fisher v. Prosser, 1 Oowp. 217; Groodlittle d Hart v. Knott, 1 lb. 214; Colchester v. Culver, 29 Vt. Ill; Townsend v. Fstate of Downer, 32 Vt. 183; Sellick v. Starr, 5 Vt. 255; Roberts, admr. v. Morgan, 30 Vt. 319; Hawley et ux. v. Hawley, 34 Vt. 525; Hall v. Dewey, 10 Vt. 543; North, admr. v. Barnum, 10 Vt. 220 ; Ripley v. Yale, 19 Vt. 156.</p>

<p> Contract of Sale. fraudulent Representations. Practice. Evidence. </p> <p>In case’ for deceit in the sale of wool, it appeared that defendant represented the wool to be ordinary fleece wool, when, in fact, there was a large quantity of pulled wool, tag-locks, and other foreign matter rolled inside of the fleeces. Defendant sought to introduce evidence of the custom of buyers in examining wool when buying it, which was excluded. Held, that plaintiffs liad a right to rely on defendant’s representation, whatever the custom of buyers in examining, and that the evidence was properly excluded.</p> <p>It having appeared that plaintiffs knew before the purchase, that some of the wool was unwashed, and had been kept so long that the fiber was impaired, the defendant offered evidence to show that the agent of plaintiffs who made the purchase had several times said before making it, that he had seen the wool, that it was damaged, and that he did not want to buy it; which the agent denied. The court charged that the evidence was to be considered only as affecting the agent’s credibility as a witness. Held, that though such evidence was evidence in chief, tending to show that he had the knowledge thereby indicated at the time of purchase, yet as it had no tendency to show that he had knowledge of the defects for which plaintiffs sought to recover, and as it only tended to show his knowledge of what was already known to the plaintiffs, the charge was without error of which the defendant could complain.</p> <p>It appeared that the plaintiffs did not cleanse the inferior kind of wool, nor sell it until after suit was brought; that they could not tell what they received for it; and that they did not sell the different kinds separately. Held, that those facts were not to be taken as against plaintiffs, unless it appeared that they withheld information relative thereto that they reasonably might have furnished, or might have expected to be called on to furnish;</p>

Ejectment. Plea, the general issue, aud trial by the court, March Term, 1876, Washington County, Redfield, J., presiding. ■ It appeared that Thomas Dodge conveyed the premises in question, on April 10, 1816, to his two sons, Jared and Thomas, and took from them a lease thereof to secure the support of himself and his _ wife ; .that he died in August, 1827, and his wife, in November, 1862; and that the plaintiff was a son and one of the several heirs of said Jared Dodge.

<p>Trustee Process. All material facts foiind and reported by the commissioner are stated in the opinion. The court, at the December Term, 1875, Caledonia County, Powers, JY, presiding, adjudged the trustee chargeable; to which the trustee excepted.</p> <p>cited Willard v. Whipple, 40 Vt. 219 ; Gatlin v. Merchants' Bank, 36 Yt. 572.</p> <p>cited Eowe et al. v. Blanden et al. 21 Yt. 315 ; Morton et al. v. Edwin, 19 Yt. 77.</p>

<p> Mandamus. Town Aid to Railroads. </p> <p>By act of the Legislature, the town of which the petitionees were officers, was authorized to aid in the construction of petitioner’s railroad, by subscribing for stock thereof. The act provided that the subscription might be made when the “assent thereto of a majority of those paying taxes, both in number and amount of the grand list then in force,” had been first obtained, by an “instrument of assent,” signed and acknowledged by each person so assenting, and setting forth the conditions on which the subscription should'be made; that such instrument should name three commissioners to make said subscription in the name of the town; and that when said instrument should have been signed and acknowledged by such majority, said commissioners should append thereto a certificate, stating that such assent had been signed and acknowledged by such majority, and should cause such instrument and certificate to be filed and recorded in the town clerk’s office, and a copy of such instrument and certificate lodged and recorded in the county clerk’s office, and that until said records should be made, such commissioners should not proceed to make any subscription on behalf of the town. The instrument of assent was procured • and certificate appended, and the subscription made, to be paid in bonds of the town; but said instrument and certificate, though filed in the town clerk’s office before, were not recorded, nor any copy thereof either recorded or lodged in the county clerk’s office, until after the -subscription was made. Held, that the commissioners had no authority to make a subscription either conditional or absolute, without first causing said instrument and certificate to be both filed and recorded according to the terms of the act; that the filing alone would not, as in case of deeds, have the same effect as recording; and that therefore mandamus could not be properly issued, commanding petitionees to execute and deliver bonds of the town in payment of the stock subscribed for.</p>

<p>Case. The declaration alleged,</p> <p>■ That whereas a suit is pending in the County Court within and for the County of Windsor, between the plaintiffs and the defendant; and whereas the defendant on, &c., at, &c., caused a citation to be served upon the plaintiffs^ to be present at the office of William Deavitt, in Moretown, in the County of Washington, on, &c., to be present at the taking of the deposition of defendant, to be used in said cause, and caused a copy of said citation to be delivered to each of the said plaintiffs, on, &c., and averred, that in consequence thereof, plaintiffs employed counsel, and one of plaintiffs did, on, &c., go to said Moretown, and with his counsel, appear at the dwelling-house of William Deavitt, and that said Deavitt then informed said plaintiff that there was no such place as the office of William Deavitt in said Moretown, and that he, the said Deavitt, was the only justice of the peace of that name in said Moretown, and that he had no knowledge of any such citation ; that there is not, nor was, at the time of the service of said paper upon plaintiffs, any such place in More-town as the office of William Deavitt; that there is and was but one person in said Moretown by the name of William Deavitt, authorized by the laws of this state to take depositions, namely, the William Deavitt at whose dwelling-house the said plaintiff was present, on, &c., and that neither the said defendant nor any person for him, appeared at the dwelling-house of said Deavitt, on, &c., and that no subpoena or citation was returned to, or in the hands of, said Deavitt, summoning the plaintiffs to appear as aforesaid; and that in consequence of the service of said paper upon them, plaintiffs had been put to diverse and great expense in money in and about the employing of counsel, and in and about their said attendance, and have paid out for counsel a large sum of money, to wit, the sum of ten dollars, and have paid out in and about their attendance upon said day and at said place, another large sum of money, to wit, the sum of thirty dollars, and have lost much time by reason of the service of said paper upon them.</p> <p>The defendant pleaded the general issue, and specially, that at and before the service of the citation mentioned in the declaration, the defendant and said Deavitt resided in said Moretown, and the said Deavitt was then a justice of the peace, and did all his official business in a convenient room in his dwelling-house ; that after said citation was served, and nine days before the time in said citation set for the taking of the deposition in the declaration mentioned, the defendant’s attorney inclosed it, with a letter réquesting defendant to appear with said citation at the time and place named therein and give his deposition, and mailed it, addressed to defendant at said Moretown, and on the same day wrote a letter addressed to said Deavitt, at said Moretown, notifying him of the time and place of taking said deposition by him as justice of the peace ; that said attorney then supposed said citation and letters would be received by said defendant and Deavitt seven days before the time named in said citation ; that both defendant and said Deavitt then resided nearer to the post office in Waterbury than to that in Moretown, and were in the habit of doing their post-office business at the former place, but that said attorney did not know it; and that neither the defendant nor said Deavitt received said citation and letters before the time named in said citation for the taking of said deposition, nor within two hours thereafter, nor had any knowledge of the time and place, &c. General demurrer to the special plea.</p> <p>The court, at the May Term, 1876, Windsor County, Barrett, J., presiding, overruled the demurrer, adjudged the plea sufficient, and rendered judgment for the defendant; to which the plaintiff excepted.</p> <p>The plea is insufficient. It does not show proper diligence on the part of the defendant. It was his duty to know of the time and place of taking the deposition ; and he cannot excuse himself from liability upon the ground of want of knowledge of the matters that it was his duty to know, before he put the plaintiffs to expense. Mann v. Holbrook, 20 Yt. 528.</p> <p>It makes no difference whether his neglect consisted in depriving himself of knowledge of the return day, or of not attending on the return day. In either case, his neglect of proper precaution and diligence, works the injury and expense to the other party ; and in either case, he is liable. The fact that he was not present at the return day and place, is, in law, an actionable neglect, only to be done away with by proof that he was prevented from attendance by the act of God; nor is it necessary to aver the neglect, the law implies it. Mann v. Holbrook, supra. ■ An action on the case lies for injuries received oh account of the negligence of the party to be charged. Sheldon v. Fair-fax, 21 Yt. 102 ; Olaflin v. Wilcox, 18 Yt. 605 ; Griffin v. Far-well, 20 Yt. 151.</p> <p>The plea is sufficient, as it answers all the allegations in the declaration. The declaration is defective. It does not charge malice, fraud, deceit, negligence, want of ordinary care, nor the committing of a wrongful act, some of which, with damage,' must be set forth affirmatively,' in order to entitle the plaintiffs to recover. Drew v. Potter, 39 Yt. 189 ; Walcott v. Canfield, 3 Conn. 194. No cause of action arises ex delicto upon the facts as alleged in the declaration, by which the court can see that damage ensued from the wrongful act or negligence of the defendant. Max v. Roberts, 12 East, 88, 94 ; 2 Ohit. PI. 600 ; Wharton v. Sutton, 1 T. R. 544.</p> <p>The declaration is defective in not setting out wherein the plaintiffs suffered damage or loss by reason of the non-appearance of the defendant before the justice. Jackson v. Pesked, 1 M. & S. 234.</p> <p>The plaintiffs would have had no property in the deposition ; nor would it have been in any way subject to their control; nor would plaintiffs have been entitled to any costs. The declaration shows no right of recovery therefor ; neither does it allege any loss by reason of non-appearance before the justice.</p> <p>There is no averment in the declaration that the plaintiffs appeared at the time of day set in the notice, nor that they appeared at any time within two hours of the time,, which is- a necessary and materia] averment. The statute does not give to the adverse party attending the taking of a deposition, fees for travel and attendance, nor attorney fees.</p> <p>The plaintiffs were under no obligation to attend. The defendant exercised a legal right in the issuing and service of notice. Gen. Sts. c. 36, ss. 2, 3; In re Foster, 44 Yt. 570.</p> <p>An act lawful and right in and of itself is not actionable on account of its being performed in an improper manner, or from a bad motive. South Boyalton Bank v. Suffolk Bank, 27 Yt. 505. A fraud, unaccompanied by damage, is not actionable. Nye v. Merriam, 35 Yt. 438 ; Ide v. Gray, 11 Yt. 615 ; Nash v. Whitney, 39 Me. 343. Griffin v. Farwell, 20 Yt. 151, and Mann v. Holbrook, lb. 523, are not authorities for the case at bar. Those cases were for the commission of wrongful acts by the defendants therein, whereby plaintiffs were deprived of taxable costs ; whereas this declaration charges no damages by reason of defendant’s nonappearance, nor because of the non-return of the citation to the justice. If defendant is liable at all, it can only be for a malicious prosecution; and the declaration does not make this such an action — it does not allege the scienter. Buxentine v. Sharp, 3 Salk. 12; Scheibel v. Fairbain, 1 B. & P. 388; White v. Bingley, 4 Mass. 435 ; Lindsay v. Lamed, 17 Mass. 190 ; Harman v. Tappenden, 1 East. 562 ; Vanduzor v. Linderman, 10 Johns. 106 ; Purtin v. Honnor, 1 B. & C. 205; 1 Chit. PI. 387, 388, 389 ; Lde v. Gray, 11 Yt. 615.</p>

The bill alleged, That on August 21, 1868, Aaron Wilbur, of Savannah, Georgia, bought a farm in Derby, for $8000, and procured it deeded to his wife, Mary E. Wilbur, in trust,for their children; that in the summer of 1869, Wilbur and his wife were desirous of building a barn on the farm that season, and saw the orator, Solomon M. Field, a mechanic and builder, several times about building it, and afterwards sent for him to come to the farm, where they were then stopping,…

The bill alleged, that the defendant company, a corporation created, The answer of the company admitted all the allegations of the bill, and alleged that after the commissioners were appointed, and had awarded damages to the owners of the land over which the road was surveyed and located in Vernon, the company entered upon said land, and built and prepared for the superstructure a large portion of road, and entered upon the land of defendant Brown, but had neither broken nor…

Case under s. 30, c. 15, of the Gen. Sts., for neglect of defendant’s constable, appealed to the County Court. The case was tried before the justice upon the general issue, no other plea having been at that time pleaded. On the first day of the term, the defendant pleaded in abatement that the plaintiff had summoned, not the town of Elmore, but the inhabitants thereof.

General Assumpsit for services and expenditures by the plaintiff as an officer of defendant town in different'capacities. Pleas, the general issue, and set-off in the general Counts. Trial by jury, June Term, 1876, Caledonia County, Ross, J., presiding.

General Assumpsit. Pleas, the general issue and set-off. Trial by jury, September Term, 1875, Windham County, Ross, J., presiding. The plaintiffs sought to recover the.amount due on a promissory note by which the defendant promised to pay the intestate or his order, one hundred and ninety dollars on demand, with interest.

Case for injury upon a highway. Plea, the general issue, and trial by jury, June Term, 1876, Caledonia County, Ross, J., presiding.

Petition por Divorce for the causes of refusal to support, adultery, and intolerable severity, alleged to have happened on the first day of September, 1872, and on divers days and times thereafter.

Assumpsit. The case was referred, and the referee reported, that the defendant and the plaintiff signed a ninety-day note for $1500 with.

Indictment for Adultery. The indictment alleged, with the ordinary particularity as to time and place, that the respondent, being a married man, and having a wife then living, did carnally know Chastina W. Warren, she then being a married woman and the wife of Leonard E. Warren, who was then living, and not the wife of the respondent, and with her did commit the crime of adultery by carnally knowing her.

The bill alleged that the orator was administrator of Abigail Y. Barber, who died intestate on November 3, 1871, who was daughter of Nelson and Mary Thompson and sister of Perry H. Thompson, the defendant, and who at time of her decease was and for many years had been the orator’s wife ; that on or about September 30, 1870-, said Nelson and Mary Thompson, with a view of securing to themselves a comfortable support in their old age, and to make provision for their children,…

Assumpsit. The declaration contained a special count upon a promissory note alleged to be payable six months from the date thereof, and the common counts. Plea, the general issue, with notice that the defendant would, on trial, deny the execution of the note. Trial by jury, April Term, 1876, Pierpoint, O. J., presiding.

Trial by the court at the April Term, 1875, upon an agreed statement of facts, Pier-point, C. J., presiding. Held: in a case of a married woman’s will, that “ by statute in this state the right to dispose of real and personal estate is put upon the same ground.” Fisher v. Kimball, 17 Yt. 323. And Barrett, J., has held, that “ we have no wills as, or by force, of common or ecclesiastical law, but only by statute.” Warner v. Warner, 37 Vt. 368.

<p> Infancy. Appearance and Defence by Natural Guardian. </p> <p>An infant is not legally capable of appearing and defending, nor of appointing an attorney to appear and defend for him; but appearance and defence by his father and natural guardian are sufficient, and need not appear of record, but may be shown by parol. Tims, where in a suit against an infant, his father became bail, was present during the entire trial, testified- on material points at the suggestion of his son’s counsel, assisted in impanneling the jury, and would have appealed if he had not known of his son’s minority, judgment against the son, upon audita querela to set it aside, was held valid and binding.</p>

Assumpsit against the defendants as common carriers of goods. The case was referred, “ to be heard and tried according to law.” The referee found and reported as follows : During the year 1866, the defendants and Lawrence Brainard (who died before the commencement of this suit), as receivers, appointed by the Court of Chancery in this state, were, and for some time before had been, in possession of and operating the Vt.

Trover for a promissory note. Plea, the general issue, and trial by jury, September Term, 1875, Pierpoint, C. J., presiding.

The bill alleged that the orator and oratrix were husband and wife, that the oratrix was the daughter of the defendant Luther P., and that before she arrived at her majority, and before her intermarriage with the orator, she inherited and became lawfully entitled to the sum of $3500 ; that afterwards the said defendant was appointed her guardian, and as such received said sum of money, and that he had never paid nor in any manner accounted for it, nor settled his…

Case for violation of a village ordinance. The declaration, so far as material to be stated, was as follows : For that whereas, at a meeting of the legal voters of the village of Winooski, legally warned and held in said village, on, &c., the said corporation passed by vote of said, meeting an ordinance in the words and figures following, to wit: “ An ordinance in relation to saloons'. It is hereby ordained by the village of Winooski, as follows : Sec. 1.

Appeal by the defendants from a decree of the Probate Court, whereby one seventh of the estate of the intestate, Jonathan C. Kittle, was distributed to the plaintiffs, who claimed as children and heirs-at-law of Charlotte E. Buck, one of the intestate’s daughters.

<p>General Assumpsit. -Pleas, the general issue and set-off. Trial by jury, September Term, 1876, Royce, J., presiding.</p> <p>The item of the plaintiff’s specifications in question related to a promissory note for $300, given by the defendant to the plaintiff as, in part, the difference in value between farms and other property exchanged by them, which note the plaintiff claimed the defendant had appropriated to his own use. It appeared that the price agreed upon for the defendant’s farm was $2,000, of which $1,500 was to be applied as, to that extent, a payment for plaintiff’s farm, and the remainder, specified in five promissory notes, one for $300, aud four for $50 each, was to be paid by the plaintiff; that there was a mortgage upon the plaintiff’s farm to one Miles, of whom the plaintiff bought, to secure the payment of $3,919, to procure a discharge of which, the defendant gave Miles his own mortgage notes for $3,550, and the plaintiff gave him his note for $369; and that the defendant thus paid towards the plaintiff’s property $3,550 in addition to the $1,600 applied as aforesaid. The plaintiff claimed that by his agreement with the defendant, the defendant was to take the plaintiff’s farm, and other property that plaintiff had had of Miles therewith, at $4^850, the sum he had paid Miles therefor, and to take other personal property for which he was to pay $500; that the two sums paid as above stated were in the aggregate $300 less than the sum the plaintiff was to receive; and that to pay that sum, the defendant agreed with him and Miles to leave the plaintiff’s note for $300 with one Smith, the town clerk, for Miles, as collateral security for plaintiff’s note for $369, upon payment of which, the note for $300 should be given up to be cancelled. The defendant claimed that lie agreed to take the property at $4,800 only, and that he had by mistake paid the plaintiff $250 too much, which he sought to recover under his plea in set-off The defendant did not leave the note with the town clerk, but transferred it to Miles in payment upon his own notes.</p> <p>The plaintiff introduced evidence to show that during a conversation had between him and the defendant after suit was brought, with reference to a compromise of the matter in dispute, the defendant said he did agree to leave the note with the town clerk, but that he kept it to secure the excess of $250 for which he had given his note, as he claimed, by mistake. To its admission the defendant objected, but it was admitted, and defendant excepted. The defendant introduced in evidence his deed from plaintiff, which recited a consideration of $4,800, and asked the court to charge the jury in regard to the weight of such recital as evidence. He also requested the court to charge that the plaintiff could not recover under the common counts. The court charged that the recital óf consideration in the deed, was prima facie evidence that the consideration therein mentioned was the true one, but refused to otherwise. charge as to the weight thereof as evidence ; and charged that the plaintiff might recover under the common counts. To the refusal to charge as requested, and to the charge as given, defendant excepted. Verdict for, plaintiff.</p> <p>cited Curtis v. Smith. 48 Vt. 116; Blade v. Dorwin, 12 Vt. 139; Nelson v. Sivan, 13 Johns. 483 ; Hoskins v. Wright, 1 Henning & M (Va.) 378: Sumner v, Brown, 34 Vt. 194 ; Hutterfield v. Howell, 3 N. H. 201; Gordon v. Tabor, 5 Vt. 103 ; Williams v. Thorp, 8 Cow. 201 ; Waldridge v. Kennison, 1 Esp. 143; Gregory v. Howard, 3 Esp. 113 ; 1 Phil. Ev. 426 ; 2 Stark. Ev. 38.</p> <p>cited Houston v. Fellows, 27 Vt. 634; Buck v. Kent, 3 Vt. 99 ; Kidney v. Persons, 41 Vt. 386 ; Scott v. Lance, 21 Vt. 507; Lnt. Bank v. Monleath, 39 N. Y. 279; 1 Hilliard Torts, 40 et seq. ; Sedgw. Dam. 609; Sanford v. Bates, 22 Vt. 546 ; Clapp v. Foster, 34 Vt. 580 ; White v. Miller, 22 Vt. 380 ; Harwood v. Estate of Harwood, 22 Vt. 507; 1 Phil. Ev. 350.</p>

Case for deceit in the sale of a bull. Plea, the general issue, a.nd trial by jury, September Term, 1876, Royce, J., presiding.

Assumpsit. Plea, the general issue. At the September Term, 1875, the defendant set the case not for the jury, and moved for a continuance ; but the court refused to grant it, and, without hearing any evidence, rendered judgment for the plaintiff, continuing .the case for the assessment of damages until the April Term, 1876, when it was tried by a jury, Royce, J. presiding.

Trespass qua. clau., counting upon s. 51, c. 113, Gen. Sts., for cutting timber on lots Nos. 5 and 6 in Avery’s Gore. Plea, the general issue, and trial by jury, April Term, 1876, Royce, J., presiding. Plaintiffs claimed to own the whole of said gore, and introduced evidence showing color of title but not legal title thereto.

<p> Revision of Auditor's Finding. Presumption of the Continuance of Things in the State in which They Have Once Existed. </p> <p>Burden of Proof of Existence of Known Attachable Property, under s. 15, c. 63, Gren. Sts.</p> <p>The question being whether (.he evidence, q. v., tended to establish facts found by the auditor, and it appearing that it did, held, that his finding was conclusive, and not to be revised upon exceptions.</p> <p>Tilings proved to have once existed in a particular state, are presumed to continue in that state till the contrary is shown. Thus, where in book account defendants relied on the Statute of Limitations, and plaintiff proved that defendants were resident in New York when the cause of action accrued, it was held that they were presumed to continue to reside there, and that it devolved on them to show that they did not.</p> <p>Plaintiff, in order to remove the alleged bar of the Statute of Limitations,' liavingshown that defendants were non-residents of the state when the cause of action accrued, it was held that the burden was on them to show that they had known attachable property within the state.</p>

Trover for a pistol, with a count in trespass, appealed from the. judgment of a justice of the peace. Pleas, the general issue, with notice of special matter, and a special plea in bar that the alleged trespass was committed by the defendant jointly with one Henry Hinckley, and that plaintiff released and discharged Hinckley.

Trespass qua. clau. Plea, general issue, and trial by jury, September Term, 1876, Royce, J., presiding, and verdict and judgment for plaintiff. The acts constituting the alleged trespass were committed on swamp lot 39 in Fairfield. Swamp lots 38, 39, and 40 contained four acres each, were twelve rods wide, and a part of sixty-eight swamp lots that were divided among the original proprietors of the town.

Book Account. The auditor reported that on June 4, 1875, plaintiff and defendant agreed in writing that plaintiff should send defendant such sewing machines, to a certain number, as he might require, to sell; that defendant should sell all machines so consigned to him under the agreement, and remit therefor within four months from date of shipment; and upon his failure so to sell and remit, that plaintiff might, at its option, at any time after four months from date of…

General Assumpsit for the price of a quantity of milk-pans, appealed from the judgment of a justice of the peace, and tried by the court, at the December Term, 1876, Pierpoint, O. J., presiding. The plaintiffs introduced in evidence, and sought to recover upon, a written contract of the following tenor: Shrewsbury, Vt., April 10,1875. Messrs.

Book Account. The auditor reported that plaintiff let his farm to defendant for one year from April 1, 1868 upon shares ; that the lease was not in writing, but that it appeared that it was agreed, among other things not material to be stated, that the defendant was to “ do all the work of running the farm that defendant relied upon the Statute of Limitations as a defence, relative to which the only evidence introduced was a letter from defendant to plaintiff, dated…

Case. The declaration alleged, That the defendant at, &c., on, &c., intending to deceive and' defraud the plaintiff, and to induce him to purchase a certain gold pin then and there in the hands and possession of the defendant, did falsely, fraudulently, and deceitfully represent to the plaintiff that said pin was then and there the property of the defendant, and that he had title thereto, and good right and lawful authority to sell the same; that the plaintiff, confiding in…

Trover for a horse. The case was referred, and the referees reported the following facts: The plaiu tiff, in his own behalf, testified that defendant came to his house and proposed to buy of him a certain four-year-old horse, and desired plaintiff to fix a price that he would take therefor, and wait on him five months for payment, informing plaintiff that he had sold his own horse on five months time, and that he wanted plaintiff’s colt to keep and break for his own use, and…

Assumpsit upon a promissory note. Plea, the general issue, and trial by the court, March Term, 1876, Wheeler, J., presiding.

Case for negligence in carrying machinery, whereby it was injured. Plea, the general issue, and trial by jury, September Term, 1876, Wheeler, J., presiding.

Trespass for a horsd, blanket, and halter. Plea, the general issue,, with notice of special matter. Trial by jury, June Term, 1876, Wheeler, J., presiding. Defendant admitted the taking, and justified the taking of the horse only, under a writ of attachment against plaintiff.

Book Account. The auditor reported the following facts: The plaintiffs are merchants in the village of Bennington. Along in the winter of 1872, one Lyman Greenslit went to plaintiffs and said that his father and he had made a contract with defendant to get out lumber for him, and wanted to trade with plaintiffs at their store, and would pay them by an order on defendant.

Debt on an administration bond. The declaration set out the bond, and alleged that the commissioners upon the intestate’s estate examined certain claims and demands against said estate presented by the prosecutor, one of which was for $240, and another for $75; that they allowed the claim for $240, with $12 96 interest thereon, and also the claim for $75, but with a set-off of $40, leaving due to the prosecutor thereon the sum of $35, with $1.46 interest; that said…

The case was referred, and the referee reported the following facts: On or about January 1, 1873, plaintiff sold and conveyed her farm to defendant, and received from him in part payment therefor, a promissory note whereof Jason Clark, defendant’s father, was the maker. There were two indorsements on the note, one for $25, and another for a sum large enough to reduce the note to $150,- the balance of the purchase money of the farm.

The bill alleged, That on September 9, 1868, the defendant was, and for a long time had been, engaged as a carrier of freight between Townshend and Brattlcboro, and Townshend and Bellows Falls; that he had secured a large business, and a great number of patrons along said routes ; that on or about that day, the orator and one Cook purchased defendant’s team, wagon, &c., and the good will of his business ; that defendant agreed not to put a team onto either of the said routes…

<p>Assumpsit upon promissory notes. Pleas, the general issue, set-off, and payment. Trial by the court, September Term, 1876, Barrett, J., presiding.</p> <p>The facts were, that the notes in question were executed by the defendant in this state, of which he then and at the time of trial was a citizen, and payable to the order of Hallady & Fuller, partners, at the Adams National Bank of North Adams, Massachusetts 3 that they were given to Elliott B. Fuller, the surviving partner of said firm, who was also a citizen of this state, to be used by him in the prosecution of his business, and were by him indorsed while current to the plaintiff, who was a money lender in North Adams ; and that defendant then held and still holds the title deeds of all the real estate occupied by Fuller, as security for his liability on said notes. Defendant claimed that Fuller had paid $5,734.77 as interest and bonus on all the notes in question, and that the sum so paid should be applied, first to extinguish the interest, and then in extinguishment of the principal. The plaintiff, though not a lawyer, had knowledge of the law of Massachusetts as to interest and usury, and offered to testify in relation thereto. To the admission of his testimony the defendant objected, but it was admitted; to which defendant excepted. The court found that the contract under which the plaintiff took the notes was made in Massachusetts ; that the notes were delivered there; and that all that had been paid by Fuller as bonus had been paid there, under his agreement with plaintiff for taking and delaying the enforcement of the notes; and that Fuller had paid to the plaintiff $4,735.77 as interest and bonus on all the notes, and that defendant never paid anything thereon either as interest or usury.</p> <p>Judgment for plaintiff in each suit for the full amount of the notes. Exceptions by defendant.</p> <p>cited Woodbridge v. Austin, 2 Tyler, 367; St. Albans v. Failey, 46'Yt. 448 ; Langdon Ainsworth v. Brown, 46 Vt. 512; Richardson v. Anderson, 1 Campb. 65, n. a; Swift Ev. 9.</p> <p>cited Banforth v. Reynolds, 1 Vt. 259; Middlebury v. Case, 6 Yt. 165; State v. Rood, 12 Yt. 396 ; Cilley v. Cushman, 12 Yt. 494; Birchard v. Palmer, 18 Vt. 208; Barron v. Pettes, 18 Vt. 385; Emerson v. Young, 18 Vt. 603; Territt v. Woodruff, 19 Vt. 182; Taylor v. Boardman, 25 Vt. 581; Barber v. Britton, 26 Vt. 112; Oaks v. Oaks, 27 Vt. 410 ; Jones v. Taylor, 30 Vt 42 ; Cobb v.. Buswell, 37 Vt. 337 ; Brattleboro Bast Society v. Heed, 42 Vt. 76 ; Bale v. Kimpton, 46 Vt. 76 ; Boberts, admr.v. Welch, 46 Vt. 164; Story Confl. Laws, ss. 242 et seq. and 292 et seq.; 2 Kent Com. 460 et seq.</p>

Assumpsit. Plea, the general issue. There were three suits consolidated and tried as one, by the court, at the April Term, 1876, Ross, J., presiding. It appeared that in 1868, under the act of 1867, passed to enable towns to aid in the construction of the Lamoille Valley-Railroad, the defendant town subscribed for four hundred and eighty shares of stock in said railroad, to be paid for in bonds of said town. The par value of the shares was one hundred dollars.

Debt on recognizance taken on appeal from a judgment of a justice of the peace. Plea, nul tiel record, and trial by the court at the April Term, 1876, Ross, J., presiding.

This was an appeal from an order of removal of one Harriet Marble, a .pauper, from the town of Newfane to the town of Somerset. The following facts were agreed upon : In June, 1867, the pauper was married to Thomas A. Marble, a son of Daniel T. Marble, and lived with him until the fall of 1872, when they separated, and she went to Newfane, where she resided until the order of removal in question was made.

Trespass qua. clau., appealed from the judgment of a justice of the peace. Pleas, the general issue and license. Trial by jury, April Term, 1875, Barrett, J., presiding. The declaration contained three counts.

Trespass founded on s. 8, No. 4, Acts of 1869. The declaration, after setting out the statute, alleged that plaintiff was the ■wife of Ira A. Snow, of &c., that on, &c., she, with her said husband, attended a fair, at, &e.; that she was then riding in a wagon drawn by a spirited horse, driven by her said husband, who wilfully drove said horse iu a careless and furious manner, thereby overturning said wagon and throwing plaintiff therefrom down a steep embankment, thereby…

This was a grand juror’s complaint under s. 1, c. 94, of the Gen. Sts., appealed to the County Court. The complaint was dated August 25,1876, and alleged a former conviction on March 4, 1876. Trial by jury, September Term, 1876, Barrett, J., presiding.

Assumpsit upon a policy of insurance. Plea, the general issue, with notice of special matter, and trial by jury, May Term, 1876, Barrett, J., presiding. The policy in question was issued by the defendant company through its agents at Bellows Falls, on August 1, 1874. The property insured thereby was destroyed by fire on April 28,1875. Upon the back of the policy was' a division of risks into three classes, denominated hazardous, extra hazardous, and specially hazardous.

Trespass for assault and battery. Pleas, the general issue, and a special plea in bar, alleging that the plaintiff was unlawfully in the counting-room of which the defendant was lawfully possessed, making a great noise and disturbance, and obstructing the defendant in the performance of his lawful duties, and that the defendant thereupon requested him to depart, which he refused to do, whereupon the defendant gently laid his hands upon him in order to.remove him from said…

Davis’s estate. The case was referred. The plaintiff George W. Davis and the testator were brothers. Plaintiff’s claim was mostly for taking care of the testator’s first wife in her last sickness, at plaintiff’s house, and for services and expenses rendered and incurred after her death and at her funeral. The testator died in March, 1872.

This case was referred. It appeared from the report that the plaintiff sought to recover a balance due for the rent of a store room belonging to the estate of which she was administratrix, of which the defendants, as ostensible partners in trade, had, in the lifetime of the intestate, been tenants ; that the plaintiff introduced in evidence the intestate’s books of account, showing an account against the defendants for rent, with a balance due thereon, and proved that the…

Assumpsit for interest upon money, pledged. The case was referred, and the referee reported the following facts: On July 9, 186D, the defendant became bail for the appearance of one Betsey C. Abbott, who had been arrested and put in jail at Middlebury.

Case against defendant as an innkeeper for negligence in keeping plaintiff’s horse. The case was referred, and the referee made the following report. On the 8th or 10th of December, 1872, one of plaintiff’s traveling agents, Newell S. Sweat, left Concord, N. EL, on plaintiff’s business, with a team belonging to plaintiff, consisting of a gray horse, a brown mare, and a light sleigh.

Assumpsit. Pleas, general issue and discharge. Trial by the court, May Term, 1876, Barrett, J., presiding. The declaration, which contained the common counts, counted specially on a note for $125, dated November 28, 1874, payable in thirty days to the order of plaintiff, and signed by defendant and John McCarty.

<p> Practice. Principal and Surety. </p> <p>The court will not direct a verdict against a party for wliom there is any evidence.</p> <p>In assumpsit upon promissory notes that defendant had indorsed, the question was whether defendant was a principal or a surety. The court charged that if it was agreed between the parties that he was to sign in the character oí a surety, plaintiff could not recover, but that if it was agreed that he should sign as principal, then plaintiff could recover. There was no agreement.between the parties relative thereto, and little or nothing said about it. Held, that the charge should have taken into account the nature and character of the transaction, and the relation of the several parties to it and to each other,.and their respective interest in and knowledge of it, and was therefore erroneous.</p>

Book Account. Tbe auditor reported that plaintiff presented a statement of his claim against the defendant, and claimed to recover as therein stated, and set out the statement in the report. That plaintiff offered in evidence the depositions of David W. Cheever, M. D., and Henry O. Marcy, M. D., and offered no other evidence of any kind. That defendant produced no evidence, but claimed that on the evidence produced by plaintiff, he was not entitled to recover.

Case for injury upon a highway. Plea, the general issue,, and trial by jury, December Term, 1876, Powers, J., presiding.

Trespass qua. clau. Plea, the general issue. Trial by jury, and verdict for the plaintiff, May Term, 1876, Barrett, J., presiding. It appeared in evidence that plaintiff, though not the legal owner of the premises where the alleged trespass was committed, was in possession and occupancy and carrying on the farm, but upon what terms did not appear. The owner of the farm was a witness on behalf of the plaintiff.

Book Account. The auditor reported that in 1872, John T. Bryant, the defendant’s son, offered to buy of the plaintiff a quantity of ash lumber, of the value of about 1725; that the plaintiff declined to sell it to him on his personal credit, but told him he would let him have it if he would get the defendant, his father, to guarantee payment; that John said he thought ho could get the defendant to do it, and that soon afterwards the defendant called and handed a paper to the…

Complaint for Bastardy. The case appears from the opinion. At the December Term, 1876 the defendant moved to dismiss the complaint-, for that the action did not survive; but the court, Redfield, J., presiding, Overruled the motion; to which the defendant excepted. By the common law, personal actions do not survive. Actio personalis moritur cum persona.