Volume 83 — Vermont Reports

Trespass quare clausum. Plea, the general issue. Trial by jury at the December Term, 1908, Addison County, Stanton, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case. Plaintiff’s possession, being that of a co-tenant could not be adverse because not constituting an ouster. Owen v. Foster, 13 Vt. 263; Boberts V. Morgan, 30 Vt. 319; Chandler V. Bicker, 49 Vt. 128.

General Assumpsit. Plea, the general issue with notice, and four special pleas, each relying on the allegations that each item in question had been fully and fairly presented to the auditor of accounts, by whom they were duly allowed, and that they were later paid byGhe state treasurer. Trial by jury at the September Term, 1907, Orleans County, Miles, J., presiding. Verdict and judgment for the plaintiff. Each party excepted. The opinion states the case.

Indictment for murder. Plea, not guilty. Trial by jury at March Term, 1909, Rutland County, Waterman, J., presiding. Verdict, guilty of murder in the first degree, and judgment thereon. The respondent excepted. The opinion states the case.

Trespass quare clausum. Pleas, the general issue, without notice, and special pleas justifying under a deed and license from plaintiff’s co-tenant. Heard on defendants’ demurrer to plaintiff’s five additional counts, and on plaintiff’s demurrers to defendants’ second, third, eighth, and ninth pleas, at the December Term, 1909, Caledonia County, Hall, J., presiding. Defendants’ demurrer overruled, and plaintiff’s demurrers severally sustained. Bach party excepted.

Case for negligence. Plea, the general issue. Trial by jury at the December Term, 1909, Addison County, Stanton, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case. The driver was defendant’s servant, in his employ, subject to his orders, and not under the control of the city foreman as regards the management of the team; hence, defendant is liable for injuries resulting from that servant’s negligent driving.

Trover for the conversión of a horse. Plea, the general issue. Trial by jury at the October Term, 1907, Essex County, Miles, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case. The property is not sufficiently described in the Garland mortgage. Parker v. Chase, 62 Yt. 206; Kenison V. Stevens, 66 Yt. 351; Huse v. Estabrooks, 67 Yt. 224; Shum v. Claghorn, 69 Yt. 45; Desany v. Thorp, 71 Yt. 31; Stearns v. Silsby, 74 Yt. 68.

Appeal in Chancery. Heard on pleadings and master’s report at the June Term, 1908, Addison County, Powers, Chancellor. Decree for the orator. The defendant appealed. The opinion states the case. The doctrine of comparative interest and injury should not be invoked in this ease. While the dam was being built it was under water and its existence unknown to the orator or its selectmen.

Case. Plea, the general issue. Trial by jury at the June Term, 1908, Caledonia County, Hall, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Special Assumpsit. Plea, the general issue. Trial by jury at the August Term, 1909, Grand Isle County, Stanton, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. This case has been once before in Supreme Count, see 81 Vt. 223.

Habeas Corpus. Heard on respondent’s motion to dismiss, and then on the merits, at the April Term, 1909, Essex County, Miles, J., presiding.

Petition for writ of mandamus, brought to the Supreme Court for Chittenden County at its November Term, 1909, and then heard on the pleadings.

Case for malpractice. Plea, the general issue. Trial by-jury at the September Term, 1907, Washington County, Waterman, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Ejectment. Plea, the general issue. Trial by court, at the December Term, 1906, Windsor County, Taylor, J., presiding. Judgment for the defendant. The plaintiff excepted. The opinion states the case.

Information for breach of the.peace. Plea, not guilty. Trial by jury at the April Term, 1909, Essex County, Miles, J., presiding. Verdict, guilty; and judgment and sentence thereon. The respondent excepted. The opinion states the case. It was error to allow the sack and its contents to be exhibited to the jury before the same was offered in evidence; and that was not cured by excluding the offer, and instructing the jury to disregard what they had seen. 1 Wig.

Trover for the conversion of hay. Plea, the general issue. Trial by jury at the September Term, 1908, Franklin County, Powers, J., presiding. Plaintiff’s counsel made an opening statement of his case, revealing only the facts stated in the opinion, which the defendant admitted. Thereupon a verdict was directed for the defendant, and judgment thereon. The plaintiff excepted. The opinion states the case.

Appeal in Chancery. Heard on the pleadings and master’s report at the December Term, 1908, Addison County, Stanton, Chancellor. Decree for the oratrix. The defendant appealed. The opinion states the case.

Case for negligence. Plea, the general issue. Trial by jury at the September Term, 1908, Washington County, Taylor, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. After the opinion in this case was filed, a motion for reargument was made by the defendant, and publication was deferred pending reargument, which was had at the January Term, 1910.

Covenant. Heard, on general demurrer to the declaration, at the June Term, 1909, Bennington County, Waterman, J.. presiding. Demurrer sustained, and declaration adjudged insufficient. The plaintiff excepted. Case passed to the Supreme Court before final judgment. The opinion sufficiently states the questioned allegation.

Trespass quare clausum for cutting trees. Plea, the general issue. Trial by jury at the April Term, 1909, Windham County, Butler, J., presiding. Verdict directed for the plaintiff for nominal damages, and judgment thereon.

Assumpsit on a fire insurance policy. Plea, tbe general issue. Trial by tbe Orleans County Municipal Court, H. B. Cushman, .Judge. Judgment for the plaintiff. The defendant excepted. The opinion states the case. The settlement with the railroad company, and the receipt executed to it is a bar to this suit. Sims v. Mutual Ins. Co., 101 Wis. 586; Niagara Ins. Co. v. Fidelity Co., 123 Pa. St. 516; Pelzer Mfg. Co. v. Sun Fire Office, 36 S. C. 213; Ins.

Appeal in Chancery. Heard on defendant’s cross-bill and plea of oratrix thereto at the December Term, 1909, Addison County, Stanton, Chancellor. Plea adjudged insufficient, and leave granted the oratrix to answer the cross-bill within thirty days, and in default thereof decree to pass for the defendants according to the prayer of the cross-bill. Within the thirty days the oratrix appealed. This case has been once before in Supreme Court; see 80 Yt. 160.

Case for deceit in tbe sale of a farm. Plea, the general issue. Trial by jury at the April Term, 1909, Windham County, Butler, J., presiding. Verdict for plaintiffs, and judgment thereon. The defendants excepted. The opinion states the case.

Case for false warranty. Heard on defendant’s motion to dismiss, at the June Term, 1909, Caledonia County, Miles, J., presiding. Motion granted, pro forma, and writ dismissed. The plaintiff excepted. Cause passed to the Supreme Court before final judgment. The opinion states the case. If the claimed defect exists, plaintiff has the right to enter a nolle prosequi as to the second and third counts.

Case for negligence. Plea, the general issue. Trial by jury at the December Term, 1908, Addison County, Stanton, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion sufficiently states the case. It was error to exclude plaintiff’s offered evidence that fourteen months previous to the fire cinders from defendant’s locomotive fell on one of plaintiff’s buildings, as bearing on the distance a live cinder could be thrown.

General Assumpsit. Pleas, the general issue, and two special pleas in bar. Heard on general demurrer to the two special pleas at the March Term, 1909, Franklin County, Miles, J., presiding. Demurrer sustained, and pleas adjudged insufficient. The defendant excepted. The opinion states the ease. Defendant’s special pleas show a good defence in that they allege a retraxit by plaintiff as to the first three notes relied upon.

Casi for negligence. Plea, the general issue. Trial by jury at the September Term, 1908, Windham County, Miles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. At the close of all the evidence the defendant moved for a directed verdict. Motion overruled, to which the defendant excepted. The opinion states the case.

General Assumpsit. Heard on the defendant’s application for leave to file a declaration on book, at the September Term, 1909, Washington County, Waterman, J., presiding. Application granted, as matter of discretion. The plaintiff excepted. Cause passed to the Supreme Court before final judgment. The opinion states the case.

General Assumpsit for logs sold and delivered, with special counts seeking to recover for defendants’ refusal to accept and pay for same. Pleas, the general issue, payment, Statute of Limitations, and a declaration in offset. Trial by jury at the September Term, • 1908, Orleans County, Hall, J., presiding. Verdict and judgment for tbe plaintiff. Tbe defendants excepted. Tbe opinion states tbe case.

Trespass for treble damages under P. S. 5842. Plea, tbe general issue. Trial by jury at tbe June Term, 1909, Windsor County, Hall, J., presiding. At tbe close of all tbe evidence tbe defendants moved for a directed verdict, for that the plaintiffs, being only lessees, could not maintain this action. Motion overruled, to which the defendants excepted.

Appeal in Chancery. Heard on demurrer to the bill at the March Term, 1909, Chittenden County, Taylor, Chancellor. Demurrer sustained, pro forma, and bill dismissed with costs. The orator appealed. The opinion states the case. The municipal taxation of farm land within the municipal limits, for general municipal purposes, where no benefit accrues to the owner, is void, as taking private property for a public use without compensation.

Trial by jury at the April Term, 1909, Windham County, Butler, J., presiding. Verdict and judgment for the proponents. The contestants excepted. The opinion states the case. It was error to receive evidence of the financial condition of the principal beneficiary under the will. Pooler v. Chustman, 145 111. 405; Merriman’s Appeal, 108 Mich. 454; Murphree v. Senn, 107 Ala. 424; Page on Wills, §386; Kelly v. Kelly, 168 111. 501; Bush v. Delano, 113 Mich. 321.

Assumpsit on an accident insurance policy. Plea, the general issue. Trial by jury at the September Term, 1907, Windham County, Haselion, J., presiding.

<p>Dogs — Legislative Regulation — Police Power — Killing Dogs— Defences — Purpose—Collar.</p> <p>While dogs are recognized by the law as a species of property, they belong to that class of property the keeping of which may be stringently regulated by the Legislature in the exercise of its police power, even to the extent of providing for their summary destruction without judicial proceedings.</p> <p>Because of P. S. 5623, providing that the owner or keeper of a dog shall cause it to be registered, numbered, described, and licensed, and to wear a collar distinctly marked with the name of the owner or keeper, and P. S. 5635, declaring that any person may kill dogs not licensed and collared, whenever and wherever found, defendant is not liable for shooting plaintiff’s hounds, which he found attacking a wild deer, though the dogs were licensed and usually wore lawful collars, but when shot had no collars on, as defendant then observed; plaintiff having removed the collars when he started the dogs to hunt foxes, in accordance with his custom.</p> <p>Where defendant killed plaintiff’s dogs, and was authorized to do so because they were not collared as required by P. S. 5635, defendant’s motive in killing the dogs was immaterial.</p>

Trespass and case for damages resulting from unmooring plaintiff’s sloop from defendant’s dock. Plea, the general issue. Trial by jury at the March Term, 1909, Chittenden County, Taylor, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Niles presented against tbe estate of Adora N. Carlton; Will Carlton, appellant. Declaration, general assumpsit. Plea, tbe general issue. Trial by court at tbe April Term, 1909, Windbam County, Butler, J., presiding. Judgment for tbe claimant. Tbe appellant excepted.

Appeal in Chancery. Heard on demurrer to the bill for want of equity, at the September Term, 1909, Windham County, Hall, Chancellor. Demurrer sustained, and bill dismissed with costs. The orator appealed. The opinion states the case.

Case for malpractice, Essex County. Heard before Miles, J., on defendant’s petition under P. S. 1492, for change of venue on the ground of local prejudice preventing an impartial trial. Petition denied, to which defendant excepted. The defendant also brought to the Supreme Court for Essex County, at its October Term, 1909, his petition for a writ of certiorari to review said proceeding for change of- venue, which petition was heard with the exceptions.

Covenant on a contractor’s bond given in conformity to the Act of Congress of August 13, 1894. Formal pleadings waived by each party, and all necessary pleadings treated as filed. Partial trial by jury at the March Term, 1909, Chittenden County, Taylor, J., presiding. At 'the close of all the evidence the defendant moved for a directed verdict on the grounds recited in the opinion.

Appeal in Chancery. Windsor County. Heard at Chambers on September 5, 1909, on the pleadings and master’s report, Eall, Chancellor. Decree dismissing the bill with costs to the defendant. The orators appealed. The opinion sufficiently states the case. A court of equity will never permit one party to take advantage and enjoy the benefit of ignorance or mistake of law on the part of another, which he knew of and did not correct. Pom. Eq.

Appeal In Chancery. Orange County. Heard at Chambers, November 25, 1909, on demurrer to the bill, Taylor, Chancellor. Demurrer sustained, bill adjudged insufficient and dismissed with costs. The oratrix appealed. The opinion states the case. Misrepresentations made for the purpose of inducing the person to whom made to forbear investigation are fraudulent. Fox v. Mackreith, 2 Brown C. C. 400; Turner v. Harvey, Jacob, 169; Walters v. Morgan, 3 DeG-.

Appeal in Chancery. Heard on demurrer to the bill at the March Term, 1909, Washington County, Stanton, Chancellor. Demurrer overruled; bill adjudged sufficient and taken as confessed; and decree for the orators. The defendant appealed. The opinion states the case.

<p>Information for adultery. Plea, not guilty. Trial by jury at the June Term, 1909, Orange County, Taylor, J., presiding. Verdict, guilty, and judgment thereon. The respondent excepted.</p> <p>The respondent moved in arrest of judgment for that the information does not charge the alleged act to have been done “feloniously,” and for that it does not allege that at the time of the act charged the respondent and her paramour were not husband and wife. Motion denied, to which the respondent excepted. Subject to the objection and exception of the respondent, the State’s Attorney, in his argument to the jury, referred to the faet that the respondent had recently given birth to a child, as a circumstance that must convince the jury of her guilt. But it appears from the transcript of the evidence, which is made a part of the bill of exceptions, that the respondent’s husband had not seen her for two years previous to the birth of the child, and that during that time she had been living in the family of the person with whom the offence is charged to have been committed in circumstances of familiarity which indicated an illicit relation.</p> <p>The charge of the court with reference to the presumption of innocence is in accord with the law as laid down in Wigmore on Evidence, §2511; in both the main work and the supplement. It is also in accord with the conclusions of Prof. Thayer as given in a lecture on the presumption of innocence delivered at Yale University and which appears in the appendix of his Preliminary Treatise on Evidence, page 551. Among the cases supporting this view are the following: Agnew v. United States, 165 U. S. 3651, in which a refusal to charge that the presumption of innocence is to be weighed as evidence was held proper. State v. Soper, 148 Mo. 217, 49 S. W. 1007; State v. Kennedy, 154 Mo. 268, in which it was held that refusal of instructions on the presumption of innocence is not error where an instruction on reasonable doubt has been adequately given. People v. Ostrander, 110 Mich. 60; Williams v. State, 144 Ala. 14; People v. Moran, 144 Cal. 48; State v. Quigley, 26 E. I. 263.</p>

Case for negligence. Plea, the general issue. Trial by jury at the September Term, 1908, Franklin County, Powers, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. Here the defendant required the plaintiff to work near wires carrying a high and dangerous voltage of electricity and was required to exercise a very high degree of care in the performance of its duty to the plaintiff. 2 Jagg Torts, 864; Girandi v. Imp.

Petition for a writ of certiorari, brought to the Supreme Court for Franklin County at its February Term, 1910, and then heard on respondent’s motion to dismiss the proceeding. The opinion states the case. Certiorari is often resorted to in this State to review the proceedings of boards or commissioners in laying out highways. Paine v. Leicester, 22 Yt. 44; Rockingham & Grafton v. Westminster, 24 Yt. 288; Woodstock y. Gallup, 28 Yt. 587; Adams v. New fane, 8 Yt. 271.

Trespass quare clausum and trover. Heard on demurrer to the declaration at the December Term, 1908, Windsor County, Butler, J., presiding. Judgment, pro forma, overruling tbe demurrer and adjudging tbe declaration sufficient. Tbe defendant excepted. Tbe opinion states tbe ease. The first and most important test whereby to determine whether counts are for the same cause of action is whether the same evidence will support them.

Special Assumpsit, Plea, the general issue, Trial by jury at the September Term, 1908, Franklin' County, Powers, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. The defendant also brought to the Supreme Court for Franklin County at its May Term, 1909, his petition for a new trial, for that the presiding judge below refused to sign and allow such a bill of exceptions as defendant alleges he is entitled to.

<p>Master and Servant — Injuries to Servant — Admissibility of Evidence — Expert Testimony — Objections—Sufficiency—Liability of Master — Fellow Servants — Negligence of Superintendent — Question for Jury — Instructions—Refusal of Requests.</p> <p>Though the general rule is that an objection to the admission of evidence must indicate the precise point on which the court is asked to rule, yet where the evidence offered is such that it could not be admissible in any state of the case, and its inadmissibility is apparent on the face of the question or offer, an objection to it as immaterial or irrelevant is sufficiently specific.</p> <p>Where an expert witness was asked whether it would be safe and prudent to set inexperienced men to unloading a boiler from a truck without certain fastenings to the rear axle, or instructions in regard to doing the work, an objection to the evidence as immaterial and irrelevant was sufficiently specific, as the evidence was inadmissible on the face of the question itself, the subject-matter not being one of peculiar skill and knowledge, and so not within the scope of proper expert testimony.</p> <p>In an action for injuries to a servant, tried in part upon a count alleging that the accident was caused by defendant’s failure to furnish proper tools, appliances, and materials, the holding of the court, on the whole evidence, that any deficiency there might have been in this respect was not the proximate cause of the injury, did not make erroneous the previous admission of evidence as to what tools and appliances were needed in the work.</p> <p>In an action for injuries to a servant, where the question of his freedom from contributory negligence involves the consideration of the probable effect of a great number of conditions, that question is for the jury.</p> <p>In an action for injuries to a servant, where the undisputed evidence was that a superintendent had entire charge of defendant’s business at the place of injury, as this would authorize the superintendent to designate another servant to oversee the work in which plaintiff was injured, with as much authority as plaintiff claimed for the servant so designated, it was not error to refuse to charge that the jury must find' that the superintendent had authority" to designate a servant to oversee the work before they could find that the servant so designated had authority to act as foreman.</p> <p>The selection of a foreman by the master’s superintendent in charge of his business has the same effect as if made by the master, the superintendent’s neglect being the master’s neglect.</p> <p>In an action by a servant for injuries caused by the slipping of a boiler which he was assisting in unloading from a truck by pulling a king-pin connecting the boiler to the front axle of the truck without blocking the boiler up, a requested charge that if plaintiff had in mind that blocking was necessary before pulling the pin, and looked for blocking and failed to find it, and then pulled the pin without the blocking, he was negligent, if he knew .and comprehended, or ought to have known and comprehended, the danger of proceeding without the blocking, was properly refused because based on the assumption that it was necessarily dangerous to attempt the unloading without blocking, as it was a question for the jury whether the situation was such that a prudent man might have undertaken the work without the blocking.</p> <p>Though the court might properly have granted the requested charge that, if the jury found that plaintiff had testified falsely about his injury or physical condition, they might consider it in passing on the truth of his other testimony, it was not error to refuse it.</p> <p>One may act as foreman and still be the “fellow servant” of the men • whom he directs, and it is necessary to look beyond the designation of the person to determine the exact relation and the resulting liability of the master.</p> <p>In an action by a servant for injuries caused by the slipping of a boiler which, by the direction of a foreman, the servant was assisting in unloading by pulling a king-pin connecting the boiler to the front axle of the truck, a charge that if the master’s business required special skill and knowledge to conduct it safely, it was the master’s absolute duty to provide a foreman qualified to instruct the servants in their work, and that the master would be answerable for the competency of a person performing that service, whether foreman or not, and that if a person was intrusted with such work and was competent to perform it, and the accident occurred merely through his negligence, or the negligence of the other servants, it was caused by a fellow servant, and plaintiff could not recover, and that the person so intrusted with the work was a fellow servant of plaintiff, and that, if he was competent to perform the service, plaintiff could not recover, but if he was incompetent, and the master knew or might have known of it by reasonable prudence, and the injury was caused by such incompetency, the master would be liable, without anything in the charge specifically applying its doctrine to the foreman’s order to plaintiff to remove the king-pin, or to any other feature of the foreman’s conduct, was erroneous, as in one connection making the master absolutely answerable for the competency of the foreman, and in another connection relieving the master from liability, unless he knew or ought to have known that such foreman was incompetent, thereby permitting the jury to return a verdict on one of the two grounds allowed in the charge without finding all the facts essential to a recovery on that ground.</p>

<p>Practice in Supreme Court — Record—Piling—Special Orders of Court — Nature and Effect.</p> <p>An order made by the Supreme Court that tbe excepting party, who is not ready when his case is reached, shall file the printed case and his brief within a specified time, and in default thereof that judgment shall be affirmed, is within the power of the Court, is in the nature of a special rule of Court made pursuant to statute, and therefore, amounts to a law, and should be enforced as such.</p>

Indictment for adultery. Plea, not guilty. Trial by .jury at the September Term, 1909, Rutland County, Stanton, J., presiding. Verdict, guilty, and judgment thereon. The respondent excepted. The opinion states the ease. It was error to admit evidence that respondent had been arrested for bastardy, as that amounted to allowing evidence as to his character when he had not put his character in issue.

Petition for a writ of quo warranto, brought to the Supreme Court for Caledonia County at its April Term, 1910, and then heard on the pleadings and evidence taken and filed. The opinion states the ease. The thirteen ballots that were discarded, in view of the circumstances surrounding the transaction, should have been counted for the petitioner. On page 612 of Cooley’s Const.

Replevin. Plea, the general issue. Trial by court at tbe October Term, 1909, Essex County, Taylor, J., presiding. After the court made its findings of fact, and at tbe request of plaintiff, Kitty Gowan, judgment of nonsuit was entered against ber, and thereupon judgment was rendered against tbe defendant in favor of tbe other plaintiff. Tbe defendant excepted. Tbe opinion sufficiently states tbe case.

Case on P. S. 2052, against a collector of taxes for exacting illegal fees. Plea, tbe general issue. Trial by court at the March Term, 1909, Orleans County, Hall, J., presiding. Judgment for the defendant. The plaintiff excepted.

Case for negligence. Plea, tbe general issue. Trial by jury at the December Term, 1907, Bennington County, Haselton, J., presiding. At the close of all the evidence defendant moved for a directed verdict on the grounds that, on all the evidence, defendant was guilty of no negligence; that plaintiff assumed the risk of the danger that caused his injury; and that he was guilty of contributory negligence.' Motion denied, to which defendant excepted.

General Assumpsit in tbe common money counts. Plea, tbe general issue. Trial by jury at tbe September Term, 1909, Franklin County, Butler, J., presiding. Verdict and judgment lor tbe plaintiff. The defendant excepted. Tbe opinion states tbe case. In order to recover for wages under this declaration, plaintiff must show that be has actually performed tbe service for which be claims pay, constructive service is not available. Curtis V. Smith, 48 Vt. 116; 1 Greenl.

Appeal in Chancery. Heard on pleadings and master’s report at the March Term, 1903, Rutland County, Stafford, Chancellor. Decree for the orators. The defendants appealed.

Appeal in Chancery. Heard on bill and answer at tbe June Term, 1909, Windsor County, Hall, Chancellor. Decree for the orator. The defendants appealed.

Case for false warranty and deceit in the sale of cattle. Plea, the general issue. Trial by jury at the June Term, 1S09, Orange County, Taylor, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. Plaintiff testified that one of the cows that was not fresh, as represented, was a “line back cow.” Defendant testified that there were no “line back cows” among those he sold plaintiff.

Trespass for assault and battery. Heard on tbe plaintiff’s motion to amend the writ, and on defendant’s subsequent motion to quash it, at tbe December Term, 1909, Caledonia County, Stanton, J., presiding. Tbe one motion was granted, and tbe other denied. Tbe defendant excepted. Tbe opinion states tbe case. Tbe motion to quash tbe writ should have been granted.

Assumpsit. Pleas, the general issue with notice, and two pleas of accord and satisfaction. Heard on demurrers to each of the special pleas and on a'motion to strike from the record a portion of the notice under the general issue, at the December Term, 1909, Lamoille County, Hall, J., presiding. Demurrers sustained and the two pleas adjudged insufficient, and motion sustained, pro forma, as matter of law. The defendant excepted.

The opinion fully states the ease. The order of the commissioners for elimination of tracks and the taking up and relaying of tracks in a different location, thus compelling railroad companies to expend a large amount of money against their will and without in any way increasing their facilities, is such a taking of property without compensation as is prohibited by the Vermont Constitution and the Constitution of the United States.

Trespass quare clausum. Plea, the general issue. Trial by jury at the March Term, 1909, Essex County, Miles, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. Plaintiff called Napoleon Rosseau as a witness and by him showed that one Weeks, who was then dead, at one time owned land that adjoined the lot in question.

Trespass for false ‘imprisonment. Pleas, the general issue, and a special plea justifying under legal process. Heard on demurrer to the special plea at the January Term, 1910, Grand Isle County, Hall, J., presiding. Demurrer overruled, pro forma, plea adjudged sufficient, and judgment for defendant to recover his costs. The plaintiff excepted. The opinion states the case.

Information, under P. S. 226, ebarging nonperformance of duty as a public officer. Heard on demurrer to tbe information at the March Term, 1909, Franklin County, Hall, J.,- presiding. Demurrer overruled, pro forma, and information adjudged sufficient.

Assumpsit. Plea, the general issue with notice. Trial by-jury at the September Term, 1908, Rutland County, Haselton, J., presiding. Verdict directed for the defendant on the ground that the plaintiff’s evidence did not tend to show a completed contract. Judgment on verdict. The plaintiff excepted. The opinion states the case. There was an unqualified meeting of the minds with reference to the evaporator, tank, spouts, and buckets, and the contract therefor was complete.

Appeal in Chancery, Franklin County. Heard at Chambers, December 17, 1907, on the pleadings, master’s report, and orator’s motion to recommit the report. Motion denied, and decree that the bill be dismissed with costs. The orator appealed. The opinion states the case.

Appeal in Chancery, Essex’00111117. Heard at Chambers, September 11, 1909, on demurrer to the bill. Demurrer sustained, pro forma, and bill adjudged insufficient and dismissed with costs. The orator appealed.

Petition for a writ of mandamus, preferred to the Supreme Court for Rutland County at its May Term, 1910, and then heard on the petition and answers. The opinion states the case.

Petition for a new trial on the ground of newly discovered evidence, preferred to the Supreme Court for Chittenden County at its May Term, 1910, and then heard on the petition and supporting affidavits.

Petition for rehearing in condemnation proceedings. Heard on special demurrer to the petition at the .December Term,'1909, Caledonia County, Stanton, J., presiding. Demurrer overruled and petition adjudged sufficient. The defendant exce*pted. The opinion states the case. The petition is insufficient in that it fails to designate wherein the petitioner is dissatisfied, or wherefore he is entitled to any relief. Culver v. Fair Haven, 67 Yt. .163; Lloyd v. Culver, 67 Yt. 167.

Case for negligence. Plea, the general issue. Trial by jury at the October Term, 1909, Essex County, Taylor, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. There was no evidence tending to show that the switch was displaced by trespassers, and it was error so to submit the case as to allow the jury to find that the switch was so displaced.

Case for negligence. Plea, the general issue. Trial by jury at the September Term, 1909, Orleans County, Taylor, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. It appeared that on December 6, 1908, as plaintiff and her husband, in a wagon drawn by a horse driven by him, were riding over a public highway in defendant town, the horse stumbled and fell, thereby throwing plaintiff to the ground and injuring her.

General Assumpsit for goods sold and delivered. Pleas, the general issue and a special plea relying on the Statute of Frauds. Trial by court on an agreed statement of facts at the December Term, 1909, Orange County, Waterman, J., presiding. Judgment, pro forma, for the plaintiffs. The defendant excepted.

Appeal in Chancery. Heard on the pleadings and finding of facts made by the chancellor, at the December Term, 1909, Lamoille County, Ball, Chancellor. Decree for the petitioner. Defendant Hunt appealed. The opinion states the case.

Appeal in Chancery. This is a bill in equity brought by citizens and taxpayers of the town of Pawlet against the selectmen and treasurer thereof, seeking to restrain the payment of expenses incurred by some of its inhabitants in opposing an act of the Legislature constituting a part of the town’s territory into a new town. Pleard on the pleadings and master’s report at the September Term, 1909, Rutland County, Stanton, Chancellor.

Appeal by tbe Central Vermont Railway Company only from an order of the Public Service Commission, dated June 25, 1910, providing for the construction of a subway as an approach to the passenger station at White River Junction. The order was made upon due hearing after the decision in this case reported ante page 421. The opinion fully states the case.

General Assumpsit, based on a draft for $250. Plea, the general issue. Trial by court on an agreed statement of facts at the March Term, 1909, Rutland County, Waterman, J., presiding. Judgment for the plaintiff for the amount of the draft, interest, and costs. The defendant excepted.

Appeal in Chancery. Heard on bill and answer at the April Term, 1910, Windham County, Miles, Chancellor. Decree, pro forma, dismissing the bill. . The orator appealed. The opinion states the case. Section 4 of the defendant’s charter is objectionable in that it purports to give general authority for the taking of land under the right of eminent domain, regardless of how much, if any, is needed for the then public use.

Appeal in Chancery. Heard on demurrer to the bill at the March Term, 1910, Washington County, Butter, Chancellor. Demurrer sustained; bill adjudged insufficient and dismissed. The orator appealed.

Attempted Appeal to the Supreme Court for the County of Lamoille from a final order of the Public Service Commission eliminating grade crossings in the town of Hyde Park. Heard on motion to dismiss. The opinion states the case.