Volume 85 — Vermont Reports

Potter’s estate disallowing a claim presented against that estate by the plaintiff. Declaration, special assumpsit on a written instrument purporting to have been signed by the decedent. Plea, the general issue with notice of the denial of the signature. Trial by jury at the September Term, 1910, Rutland County, Butler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Appeal in Chancery. Heard on pleadings and master’s report at the September Term, 1910, Rutland County, Hall, Chancellor. Case discontinued as to Carlos E. Mead on account of his death; and decree against George P. Eastman in accordance with the amended prayer of the bill. Said Eastman appealed. The opinion states the case. The language of Carlos E. Mead’s letter gives authority to sell and convey. Stadleman v. Fitzgerald, 14 Nebr. 290; 29 Am. & Eng.

Information for unlawfully furnishing intoxicating liquor. Plea, not guilty. Trial by jury at the September Term, 1909,. Chittenden County, Miles, J., presiding. Verdict, guilty; and judgment and sentence thereon. The respondent excepted. The opinion states the case.

Assumpsit for the collection of taxes, begun by trustee process. Plea, the general issue. Trial by jury at the June Term, 1907, Windsor County, Waterman, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The facts determinative of the trustee’s liability were found and reported by a commissioner. The opinion states the case.

Special Assumpsit. Franklin County, March Term, 1911, Stanton, J., presiding. Heard on the defendant’s motion to dismiss plaintiff’s amended declaration, filed after defendant had pleaded to the original, for that it introduced a new cause of action. Motion denied, to which defendant excepted. Exceptions allowed, and cause passed to the Supreme Court before trial on the merits.

Case for negligence in setting out fires. Plea, the general issue. Trial by jury at the September Term, 1910, Windham County, Taylor, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. See the following case.

Case for setting out fires. Plea, the general issue. Trial by jury at the September Term, 1910, Windham County, Taylor, J:, presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Special Assumpsit. Plea, the general issue. Trial by-jury at the April Term, 1910, Windham County, Miles, J.,. presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Replevin 'for a horse. . Plea, the general issue. Trial, by jury at the September Term, 1910, Rutland County, Butler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Appeal in Chancery. Heard on the pleadings and finding, of facts by the Chancellor at the March Term, 1910, Washington County, Stanton, Chancellor. Decree for the orator. The, defendant appealed. The opinion states the case. A patent right is personal property, and is subject to the general laws relating to such property, and is surrounded by the same rights and sanctions that attend all other property.

Appeal in Chancery. Heard on the pleadings, and master’s report and defendant’s exceptions thereto, at the March Term, 1911, Washington County, Miles, Chancellor. Decree pro forma, overruling the exceptions and decree for the orator in accordance with the prayer of the bill. The defendant appealed. The opinion states the case. The fact having been found that this real estate was purchased by money belonging to the oratrix then equity will decree it to her.

Petition for the appointment of commissioners to re-assess the petitioner’s share of the expense of laying a common sewer in the defendant village. Heard on the report of the commissioners, and petitioner’s exceptions thereto, at the September Term, 1910, Franklin County, Miles, J., presiding. Exceptions overruled, and judgment against the petitioner for $349.36. The petitioner excepted.

Trespass and case. Heard on defendant’s special demurrer to the declaration for misjoinder of counts, at the September Term, 1910, Orleans County, Stanton, J., presiding. Demurrer overruled, and declaration adjudged sufficient. The defendants excepted. The opinion states the case.

General Assumpsit. Plea, the general issue with notice. ‘Trial by court on an agreed statement of facts at the December Term, 1910, Windsor County, Waterman, J., presiding. Judg■ment, pro forma, for the‘plaintiff for $500 and costs. The defendant excepted. The opinion states the case. The State has the power to put a price on corporate privileges and to exact a bonus for the granting of a franchise.

<p>Action for Deceit — Exchange of Horses — Admissibility of Evidence ■ — Review—Matters not Apparent of Record — Motion in Arrest — Necessity of Furnishing Declaration.</p> <p>In an action for deceit in the even exchange of horses, where plaintiff’s evidence tended to show that, if the horse he received from defendant were sound and free from defects, as defendant represented, it would have been worth substantially as much as the horse plaintiff gave defendant, evidence of the kind and value of that horse was admissible.</p> <p>in an action for deceit in the exchange of horses, error does not appear in the admission of testimony for plaintiff showing the defective condition of the horse he received from defendant when it was being driven by defendant’s son, where the record does not show when that was.</p> <p>A bill of exceptions that refers to the evidence only in the statement in a ground of defendant’s recited motion for a directed verdict that “the plaintiff’s testimony is referred to” does not bring that testimony before the Supreme Court, and so defendant’s exception to the overruling of that motion is not considered.</p> <p>An exception to the overruling of a motion in arrest of judgment will not be considered where neither the declaration nor a copy thereof is furnished this Court.</p>

Information for distributing a trial sample of medicine in violation of P. S. 5902. Plea, not guilty. Trial by the City Court of Burlington on March 9, 1911, Mower, Judge. Judgment that the respondent is guilty, to which he excepted. The opinion states the case. The court below made no error. This case is governed by State v. Gilmore, 80 Vt. 514. The question of intent is not material.

Assumpsit begun by trustee process for the collection of taxes. Plea, the general issue with notice. Trial by jury at the March Term, 1910, Chittenden County, Stanton, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. At the close of the plaintiff’s case, and again at the close of all of the evidence, defendant moved for a directed verdict in his favor on the grounds stated in the opinion. Motion overruled, to which defendant excepted.

Indictment for murder. Plea, not guilty. Trial by jury at the September Term, 1911, Franklin County, Miles, J.,. presiding. Verdict, guilty of manslaughter, and judgment and sentence thereon. The respondent excepted. The respondent was the wife of the deceased. She admitted that she shot and killed the deceased, but claimed that it was-accidental. It appeared that on October 20, 1910, she and the. deceased were living together in their home in the town of St. Albans.

Case for negligence. Plea, the general issue. Trial by jury at the April Term, 1910, Windham County, Miles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Case for negligence. Plea, the general issue. Trial by jury at the June Term, 1910, Bennington County, Hall, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. It appeared that plaintiff did not hold the premises in question to her sole and separate use. The opinion states the case.

<p>Sales — Action for Price — Acceptance—Seasonable Repudiation of the Purchase — Evidence.</p> <p>In an action for the price of a monument purchased by defendants for a customer in another state, where defendants repudiated the purchase because certain dark spots appeared on the monument after it was erected in the cemetery, evidence that after it had been so erected defendants received from their customer a complaint that the monument was discolored was admissible to show that there was no acceptance of the monument from failure to repudiate the purchase within a reasonable time.</p>

Assumpsit begun by trustee process for the collection of taxes. Plea, the general issue. Trial by court on an agreed statement of facts at the December Term, 1909, Windsor County, Miles, J., presiding. Judgment, pro forma, for the plaintiff. The defendant excepted. The opinion states the case. Property leased as this was to the railway company becomes a part of its corporation property for the purposes of taxation.

<p>Breach of Marriage Promise — Damages ■ — Aggravation—Recovery of Damages by a Woman for her Seduction by Means of Promise to Marry.</p> <p>In a suit by woman for breach of a promise of marriage she may recover damages for her seduction by means of the promise.</p>

Appeal in Chancery. Heard in the pleadings, including a cross bill by the Jamaica Lumber Company, and a master’s report, at the September Term, 1909, Windham County, Hall, Chancellor. Decree in favor of the Jamaica Lumber Company. The orators appealed. The opinion fully states the case. The Jamaica Lumber Company have no right to be subrogated for they have paid only what they were obliged to pay under the terms of their contract.

Trover for bottles. Plea, the general issue. Heard on 'the pleadings and the report of a referee at the March Term, 1911, Windham County, Waterman J., presiding. Judgment for the plaintiff, to which the defendant excepted. The opinion states the case.

<p>Evidence — Admissions of Counsel — Construction—Parol Evidence Modifying Bill of Sale — Fraud in Sale — Proof of Contract— Pleading — General Issue — Measure of Damages in Fraud Action — Nominal Damages — Judgment for Nominal Damages in Supreme Court — Remand—Proceedings in Lower Court— Amendment of Pleadings — Application for Leave — Judgment Reversed only as to Damages.</p> <p>In an action for deceit in selling plaintiffs certain personal property and concealing the existence of two mortgages thereon/ on the strength of which mortgages one plaintiff had been sued in trover in New Hampshire, the cross-question, asked that plaintiff, whether he intended to contest the trover suit on the ground that the mortgages were invalid, was properly excluded, on the concession by plaintiffs’ counsel that the mortgages were valid in New Hampshire, for that concession was equivalent to an admission that plaintiff did not intend to contest the trover suit on the gound of the invalidity of the mortgages, and bound plaintiffs as much as the excluded answer could.</p> <p>In an action for deceit in selling plaintiffs, by a bill of sale, certain personal property, including a mill and machinery, and concealing the existence of two mortgages thereon, defendants for the expressed purpose of rebutting plaintiffs’ evidence that they were deeieved, offered to show that a certain sum paid defendants at the time of the sale was paid for work done for plaintiffs, and that by the contract of sale the mill building and machinery were to be turned over to plaintiffs, and that certain machinery purchased by one of defendants, and not paid for, was to be paid for by plaintiffs, or with money furnished by them, which matter was not settled on the day of the sale, and that certain of the machinery ■sold was to be paid for at what it was worth more than the two mortgages thereon, which was left undetermined because the amount of the mortgages was not then known. Held, that the offered evidence was properly excluded, as going beyond negativing the deceit, and tending to impeach the bill of sale.</p> <p>In an action for deceit in the sale of property, though the contract of sale be but matter of inducement, it is necessary to prove it in order to show a relation between the parties that would make the deceit actionable.</p> <p>Under the general issue in an action on the case anything is admissible in evidence which shows that defendant is not guilty of actionable wrong in respect of the matters charged in the declaration, and so, in an action for deceit in the sale of property, the general issue denies all the facts stated in the inducement, as well as the deceit itself.</p> <p>In an action for deceit in selling plaintiffs certain personal property and concealing the existence of two mortgages thereon, plaintiffs were entitled only to nominal damages where it appeared that they had not paid the mortgages, though on the strength thereof a suit in trover had been brought against one of the plaintiffs, Bouman v. Parker, 40 Vt. 410; Houghton v. Carpenter, 40 Vt. 588; and Shanks v. Whitney, 66 Vt. 367, distinguished.</p> <p>In an action for deceit in selling plaintiffs certain personal property and concealing the existence of two mortgages thereon, where the only error below was the rendition of judgment for plaintiffs for actual damages, whereas they were entitled only to nominal damages because they had not paid the mortgages, the general practice would require this Court to render judgment for plaintiffs for nominal damages, all of the issues having been disposed of below, but, as such judgment would bar a recovery by plaintiffs for what they may subsequently have to pay to free their property from the mortgages, the judgment below is affirmed, except as to damages, but reversed as to that, and cause remanded, so that plaintiffs may apply below for leave to amend, on terms to be there determined, by alleging payment of the mortgages when made.</p> <p>Such an amendment may properly be allowed, as it would neither change the form or nature of the action, nor introduce a new subject-matter.</p>

Trespass guare clausum fregit. Plea, the general issue. Trial by court on an agreed statement of facts at the September Term, 1909, Windham County, Hall, J., presiding. Judgment pro forma for defendants to recover their costs. Plaintiffs Axcepted. The opinion states the case. Where the particular and general description in a deed conflict the former will control.

<p>Sales — Fraud—Evidence—Admissibility—Conclusion of Law— Admission on Trial — Effect—Questions Reviewable — Immaterial Questions — Damages—Interest—Assessment by Court.</p> <p>In an action for deceit that induced plaintiff to sell defendant goods on-credit, evidence of prior fraudulent representations that induced other like sales of goods, not shown to be a part of a series of fraudulent acts, is inadmissible, especially where defendant had paid for such-other goods.</p> <p>Nor can the admission of evidence of such prior fraudulent representations-inducing other sales be justified on the ground that at the time such evidence was admitted it did not appear that defendant had paid for-such other goods, which plaintiff subsequently disclosed was the fact, in the absence of anything to indicate that plaintiff did not make the most of this improper evidence.</p> <p>In an action for deceit that induced plaintiff to sell defendant goods ort credit, testimony that defendant had previously in like transactions with plaintiff made representations “similar” to those inducing the sale in question was not admissible, as that was a conclusion of law.</p> <p>In an action for deceit that induced plaintiff to sell defendant goods on credit, where plaintiff testified that at the time of the sale defendant made designated representations about his property, and that plaintiff relied thereon and gave defendant credit for goods that wefe not then delivered, plaintiff’s wife, who at that time joined the parties immediately after plaintiff had decided to sell the goods to defendant, was properly allowed to testify as to representations by defendant in plaintiff’s presence regarding his ownership of designated property, as bearing on the question of what representations defendant had just before made to plaintiff.</p> <p>Where plaintiff entered a remittitur covering all items except one, this Court will not consider the pleadings or the evidence as to the other items.</p> <p>In an action for defendant’s fraudulent representations that induced plaintiff to sell him goods on credit, he was properly cross-examined, as bearing on the question of intent, regarding his understanding for sometime previous to the transaction in question as to what of his property was exempt from attachment.</p> <p>Where a motion for a certified execution was granted on compliance by plaintiff with the court’s conditional order that plaintiff enter a remittitur of the damages found by the jury to a designated sum, with interest thereon, which sum and interest, according to defendant’s claim, the jury could properly find against him on the evidence, the action of the court was not objectionable as amounting to an assessment of damages by way of interest.</p> <p>Damages in a tort action, allowed as the equivalent of legal interest, are actual and not punitive.</p>

Petition for a writ of quo warranto brought to the Supreme Court for Orleans County, and heard at its May Term, 1911, on the pleadings and testimony taken and filed. The opinion states the case.

<p>Witnesses — Disqualification—Surviving Party to a Contract in Issue — P. S. 1589 — Cross-Examination—Materiality— .Adverse Possession — Claim of Title — Deed—Evidence— Materiality — Order of Reception — Ejectment—Description— Direction of Verdict — Instructions—Prejudice—Application to Evidence — Abstract Request to Charge — Exceptions—Sufficiency — Waived by Failure to Brief.</p> <p>In an action of ejectment, P. S. 1589, disqualifying as a witness one party to a contract in issue and on trial where the other party is dead, does not disqualify the grantor of plaintiff’s deceased grantor -to testify ¡that the witness conveyed the land in controversy to plaintiff’s grantor by a deed claimed to have been lost and never recorded, especially where the lost deed is used only in aid of plaintiff’s claim of adverse possession and not as a link in his chain of title.</p> <p>.A deed may aid a claim of title by adverse possession, though no title is shown in the grantor therein.</p> <p>In an action of ejectment, where plaintiff relied on title by adverse possession, and the grantor of plaintiff’s grantor on cross-examination testified that he had not been a party to any suit against defendant relating to the land in controversy, it was not error to exclude the further question whether he had not been a party to a chancery suit against defendant involving that land, when plaintiff at once admitted that witness had been a party to such a suit.</p> <p>In an action of ejectment, where plaintiff relied on title by adverse possession, and his witness on cross-examination had testified that, after he had conveyed the land in question to plaintiff’s grantor, witness claimed :no interest therein, and “expected” that plaintiff was the owner thereof all the time until suit was brought, the court properly excluded as immaterial, the further question whether witness ever declared on oath that to his best knowledge and belief another was the owner of the land.</p> <p>In an action of ejectment, defendant on cross-examination could not, as matter of right, inject a deed into the case as independent evidence, where the offer of the deed was neither direct nor cross-examination, and especially where it was offered as tending to show, among other things, title in defendant, and it had no such tendency.</p> <p>In an action of ejectment to recover “lot 71” of the second division of lands in the town of Brighton, where defendant introduced evidence that his grantor had paid taxes on “lot 71,” and defendant had testified as to the quality of “lot 71,” as to what he had done on it, that he had a map of it, told about the line that joins it to lot 70, and further testified that he had been a lister in the town of Brighton and recalled to whom “lot 71” had been set in the list for taxation, and that in 1890 he discovered that there was a break in the title to the lot, that he was familiar with the lots and ranges in that town, and that there was a “lot 71” in the second division, his motion for a directed verdict on the ground that there was no evidence that the town was ever alloted or divided, so that a description of land as “lot 71 ” in the second division of lands in that town described nothing, was properly denied.</p> <p>Since in ejectment plaintiff can recover “according, to his right,” where there was evidence tending to show title in plaintiff by adverse possession to at least a part of the land for which he sued, defendant was not entitled to a directed verdict for that plaintiff had no valid title to the whole lot.</p> <p>In an action of ejectment, an instruction that, in order to recover, plaintiff must show a right to the premises superior to that of defendant, was not objectionable as implying, or leaving the jury to infer, that defendant must show some title.</p> <p>In an action of ejectment, where defendant’s evidence did not tend to prove title in him by adverse possession, he was not prejudiced by an instruction that, as the court understood the matter, defendant did not claim that he had proved title by adverse possession.</p> <p>In an action of ejectment for land, an undivided half of which was conveyed to plaintiff by his father, since deceased, but there was no evidence that he died intestate and that plaintiff was his sole heir, it was error to submit to the jury whether plaintiff “or his ancestor” had made out' title by adverse possession.</p> <p>An exception to an instruction as given does not reserve the question whether there was error in failing to give another and further instruction.</p> <p>An exception not briefed by the exceptor is treated as waived.</p> <p>A requested instruction consisting of an abstract proposition of law, with nothing to indicate how the jury should apply it to the evidence, was properly refused.</p> <p>In an action of ejectment for land, an undivided half of which had been conveyed to plaintiff by his father, where there was no claim or suggestion made during the trial that the rights of tenants in common were involved, defendant could not be heard to object to a certain instruction because it contained nothing with reference to the rights of tenants in common to maintain ejectment against each other.</p> <p>In an action of ejectment for land, an undivided half of which was conveyed to plaintiff by his father, plaintiff testified that he knew nothing of a deed of the land from a designated person to plaintiff’s father until about the time the suit was started, and that he did not know, and never knew, just where the lines were “down there,” apparently referring to a strip of land, parcel of the land in question, on which; certain haying had been done. Held, that this evidence of plaintiff’® ignorance would not warrant an instruction that when plaintiff cut the hay he had no knowledge of any writing giving the land in question to himself or his father, and defining its limits, and that, therefore, the jury must find that plaintiff was not occupying a part under a claim of the whole of a larger tract of definite limits, and could recover only what he actually occupied.</p> <p>Actual possession of a part of a lot of land may give constructive possession of the whole, if it had boundaries sufficiently well marked, regardless of who marked them.</p>

<p>Information charging rape. Record that the respondent was arraigned and thereon pleaded not guilty, but in fact there was neither arraignment nor plea. Trial by jury at the June Term, 1911, Windsor County, Butler, J., presiding. Verdict, guilty. After verdict and before judgment, the .respondent moved to set aside the verdict for that he did not plead to the information, and also moved for an order that the record be amended and corrected by striking therefrom the minute of' the arraignment of the respondent and his plea of not guilty. The court made a finding of the facts recited in the opinion and overruled both motions, to which the respondent'excepted.</p> <p>Although a respondent may waive a formal arraginment^ he cannot waive a formal plea to the indictment or information. State v. Hughes, 1 Ala. 655; Parkinson v. People, 135 111. 401;. 25 N. E. 764; Caain v. United States, 162 U. S. 625, 40 L. ed. 1097; Hill v. State, 1 Yerger 76, 24 Am. Dec. 441; Jackson v. Stale, 91 Ala. 55, 24 Am. St. Rep. 860; Johnson v. People, 22 111. 314; Aylesworth v. People, 65 111. 301; Haskins v. People, 84 111. 87, 25 Am. Rep. 433; Comm. v. Hardy, 3 Mass. 303; Grigg v. People, 31 Mich. 471; Sartorinus v. State, 24 Miss. 602; People v. Crobett, 28 Cal. 328; Douglass v. State, 3 Wis. 821; Bowen v. State, 108 Ind. 411, 9-N. E. 378; State v. Chenier, 32 La. Ann. 103; Ray v. People, 6 Colo. 231; State v. Vanhook, 88 Mo. 105.</p> <p>Arraignment may be dispensed with if a plea is entered. Allyn v. State, 21 Neb. 593; Kruge v. State, 1 Neb. 365; State v. Moore, 30 S. C. 69; Lynch v. State, 99 Tenn. 124.</p> <p>The record shows a plea of “not guilty” and the respondent by his silence and by the information that he gave the court through his attorney waived any objection that he had in the making up of the record, and after trial and verdict it is too late for him to ask for any change. The issue was joined. The jury tried the issue. The finding of facts shows that the record was correct, hence there was no error. Haskins v. People,, 84 111. 87; Griffin v. Com., 23 Ky. 2148; Salfner v. State, 84 Md. 299.</p>

Appeal in Chancery. Heard on the pleadings and masters’ report at the December Term, 1907, Caledonia County, Waterman, Chancellor. Decree for the orators. The defendant appealed. The two cases cited in the first paragraph of the opinion must be read in order fully to understand this case. If the mortgagees had any priority to the income during the pendency of the proceedings in the Poland case, it must be determined by the provisions of the mortgage.

General Assumpsit. Plea, the general issue with notice. Trial by jury at the June Term, 1911, Caledonia County, Hall, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Since the plaintiff did not rescind the contract and offer to return the consideration before the commencement of this suit, the contract of settlement is a bar to the plaintiff’s recovery.

General Assumpsit. Heard on the pleadings and report of a referee, and defendants’ several exceptions thereto, at the September Term, 1910, Washington County, Hall, J., presiding. Exceptions overruled, and judgment for plaintiff. All parties excepted. The opinion states the case. See 77 Yt. 7, and 79 Vt. 13.

Case for deceit in the exchange of automobiles. Plea, the general issue. The case stood for trial by jury at the September Term, 1910, Windham County, Taylor, J., presiding.

Case for deceit in the sale of a farm. Plea, the general issue. Trial by jury at the September Term, 1910, Windham County, Taylor, J., presiding. Yerdict and judgment fontheplaintiff. The defendant excepted. The opinion states the «ase. This case has been once before in the Supreme Court. See 83 Vt. 167.

Information for killing a wild deer in violation of P. S. 5320. Heard on demurrer to the information, in the Brattleboro Municipal Court on April 8, 1911, William R. Daley, Municipal Judge. Demurrer overruled and information adjudged sufficient. The respondent excepted. Cause passed to the Supreme Court before final judgment. The opinion states the case.

Appeal in Chancery. Heard on the pleadings, master’s report, and defendant’s exceptions thereto, at the March Term, 1911, Washington County, Miles, Chancellor. Exceptions overruled, pro forma, and decree for the orator in accordance with the prayer of the bill. The defendant appealed. The opinion states the case.

General Assumpsit on a fire insurance policy. Heard on demurrer to the whole declaration at the June Term, 1910, Caledonia County, Waterman, J., presiding. Demurrer sustained, pro forma, and declaration adjudged insufficient. The-plaintiff excepted. The opinion states the case.

<p>Principal and Agent — Contract—Construction—Compensation— Performance of Services Contemplated.</p> <p>That a written contract for services contains no reference to compensation is not conclusive against a right to reasonable compensation for services rendered thereunder.</p> <p>Where certain real estate, held in trust by defendant, was purchased at public auction by plaintiff, under an agreement between them that plaintiff should purchase the property as the undisclosed agent of defendant, and “turn over the property, if bid in by him, on request,” in order to recover compensation for his services in attending the auction and bidding in the property, plaintiff need not convey it tojclefendant and his wife, as defendant requested him toftlo.</p>

Appeal in Chancery. This is a suit by Homer L. Skeels, as administrator of the estate of Harriet S. Earle. The orator alleges that a certain warranty deed from said Harriet S. Earle to James S. Brown, conveying said Harriet’s home farm, was in fact a mortgage, and prays for the right to redeem the premises. Heard on the pleadings, master’s report, and defendants’ exceptions thereto, at the December Term, 1910, Windsor County, Waterman, Chancellor.

Case for negligence. Heard on demurrer to the third count of the original declaration, and to the first, second, and fourth counts of the amended declaration, at the September Term, 1910, Windham County, Taylor, J., presiding.

Case for negligence. Heard in vacation after the March Term, 1911, Franklin County before Miles, J., on demurrer to the declaration. Demurrer sustained and declaration adjudged insufficient. The plaintiff excepted. Cause passed to the Supreme Court before trial on the merits. The opinion sufficiently states the declaration.

Assumpsit on a health and accident insurance policy. Plea, the general issue. Trial by jury at the April Term, 1911, Wind-ham County, Butler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. This case has been once before in the Supreme Court; see 83 Vt. 242.

General Assumpsit. Plea, the general issue. Trial by jury at the March Term, 1911, Chittenden County, Butler J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. This case has been once before in the Supreme Court; see 84 Vt. ^51.

Trespass quare clausum. Pleas, the general issue and liberum tenementum. Plaintiff new assigned, and. defendants rejoined with a general denial and notice thereunder. Trial by jury at the December Term, 1910, Orange County, Hall, J., presiding. Verdict and judgment for the plaintiff. The defendants excepted.

Walworth, deceased, intestate, adjudging that Howard M. Scott is the intestate’s heir at law, and decreeing to J. K. Batchelder, as guardian of Howard M. Scott, two-thirds of said estate; Jennie L. Walworth, the intestate’s widow, and his brothers and sisters, appellants. J. K. Batchelder, as such Guardian, appellee. Heard on an agreed statement of facts at the December Term, 1910, Bennington County, Waterman, J., presiding.

Appeal in Chancery, Washington County, September Term, 1910. Heard on the mandate of the Supreme Court recited in 84 Vt. 59, and on defendant’s motion for leave to file an answer. Motion overruled and decree of foreclosure for the orators in accordance with said mandate. Defendant Thomas J. Deavitt appealed.

Assumpsit on the promissory note hereinafter described. Pleas, the general issue, and that the cause of action did not accrue within six years before the bringing of the suit. Replications, similiter, and that the cause of action did accrue within six years. Trial by jury at the December Term, 1910, Caledonia County, Butler, J., presiding.

T-Ta-ruar Corpus, brought to the Supreme Court for Chittenden County at its November Term, 1911, and then heard on the pleadings. The opinion states the case.

W. Braley’s estate. Fred N. Braley, deceased’s brother and his residuary legatee, appellant. Heard on an agreed statement of facts, at the March Term, 1911, Washington County, Miles, J., presiding. Judgment affirming the decree of the probate court. The appellant excepted. The opinion states the case.

Trover and Trespass for an automobile. Plea, the general issue, and notice of justification as an officer serving a writ of attachment. Trial by jury at the March Term, 1911, Chittenden County, Butler, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion sufficiently states the case.

Appeal in Chancery. Heard on the pleadings and finding of facts by the Chancellor, at the March Term, 1910, Rutland County, Taylor, Chancellor. Decree dismissing the bill with costs to the defendant. The orator appealed.

Habeas Corpus. Heard at the March Term, 1911, Washington County, on the pleadings and evidence, Miles, J., presiding. On the facts found, judgment that the relator is not unlawfully restrained of her liberty, and that she be remanded to custody. The relator excepted. The opinion states the case.

Case for negligence. Plea, the general issue. Trial by jury at the March Term, 1910, Franklin County, Taylor, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion fully states the case. The testimony of the several witnesses that deceased had never mentioned to them the danger from dust explosion was inadmissible. Hatch v. Reynolds’ Est., 80 Vt. 294; Morgan v. Hendrick, 80 Vt. 284.

Trespass quare clausum. Plea, the general issue with notice ■of special matter in defence. Trial by jury at the June Term, 1911, Caledonia County, Hall, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case.

General Assumpsit. Pleas, the general issue, and a plea relying on the law of Massachusetts. Trial by jury at the March Term, 1911, Franklin County, Stanton, J., presiding. Verdict ordered for the defendant to recover her costs, and .judgment thereon. The defendant excepted. The opinion ¡states the case. The act of the depositor in depositing the money in the-bank in the circumstances shown by the evidence created a completed, voluntary trust in favor of the plaintiff. Conn.

Appeal in Chancery, Lamoille County, Stanton, Chancellor. Heard in vacation after the June Term, 1910, and after remand of the case as reported in 84 Vt. 45, on the pleadings and original finding of facts by the Chancellor, supplemented by his further findings based on the evidence- originally taken. Decree reforming the written contract in question and perpetually enjoining the prosecution of. certain suits at law. -The defendants appealed. The opinion states the case.

Case for negligence. Plea, the general issue. Trial by jury at the September Term, 1909, Washington County, Waterman, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. This case has been once before in the Supreme Court, 82 Vt. 230; and the opinion there should be read for a statement of the case.

Appeal in Chancery. Heard on defendant’s plea to the hill for want of proper parties, at the June Term, 1.911, Caledonia County, Butler, Chancellor. Decree pro forma, holding the plea sufficient and ordering it to stand and be allowed, holding that the truth of the plea was admitted by failure to ■reply thereto, and ordering, pro forma, that the bill be dismissed. The oratrix appealed. The opinion states the case.

Bean. Trial by jury at the March Term, 1911, Washington County, Miles, J., presiding. Verdict and judgment for the proponent. The contestants excepted. The opinion states the case.

Assumpsit for the price of land sold and conveyed. Plea,, the general issue. Trial by court at the March Term, 1911, Washington County, Miles, J., presiding. Judgment for defendant to recover its costs. The record does not show that the question of the Statute of Frauds was raised below, nor-that the plaintiff objected to the admission of any evidence, except to the admission of a cash book and the records of warnings, and proceedings of certain meetings..

Scire Facias against the surety alone on a joint and several recognizance, brought in the city court within and for the city of Burlington, C. S. Palmer, Judge. Heard on demurrer to. the declaration. Demurrer sustained and the declaration adjudged insufficient. The plaintiff excepted. The opinion states the case. Scire facias on a joint and several recognizance may be maintained against either the principal or the surety alone.

Petition for a writ of mandamus, brought to the Supreme Court for Chittenden County, and heard at its February Term, 1912, on the pleadings. The opinion states the case.

Appeal in Chancery, Bennington County, December Term, 1911, Waterman, Chancellor. Heard on the pleadings, master’s report, and the petition of Dorothea A. Vanderveer, minor daughter of Jean J. Vanderveer, for leave to intervene ns his creditor. Petition to intervene denied, and decree for the orator foreclosing the mortgage. The opinion states the case.

Appeal in Chancery. Heard on tbe pleadings, master’s report, and orator’s exceptions thereto, at tbe March Term, 1910, Orleans County, Waterman, Chancellor. Exceptions overruled, and bill dismissed with costs. The orators appealed. This is a suit in equity against J. F. Blanchard, W.C. Perkins and David G. Perkins to secure the orator’s rights in certain real estate under an oral contract with defendant Blanchard.

Case for malicious prosecution. Plea, the general issue with notice. Trial by jury at the March Term, 1911, Chittenden County, Butler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Case for negligence. Plea, the general issue. Trial by jury at the March Term, 1910, Washington County, Butler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Trial by court at the June Term, 1862, Orleans County, Poland, J., presiding. Judgment affirming the decree of the probate court. The contestants excepted. The will appoints Dyer Bill as the executor thereof, and is witnessed by Isaac N. Cushman, William Raymore, and James Kelly. The bill of exceptions is in the handwriting of Judge Poland, and recites that, “The appellants filed no written pleas, but objected that the said will was not duly executed so as to be a valid will.