Volume 90 — Vermont Reports

Trespass and trover for taking a horse. Plea, the general issue with notice of special matter justifying under a chattel mortgage. Trial by jury at the March Term, 1915, Franklin County, Fish, J., presiding. Verdict directed for defendants, and judgment thereon. The plaintiff excepted. The opinion states the case.

Appeal in Chancery. Heard on the pleadings and finding of facts by the Chancellor, at the September Term, 1914, Washing-ton County, Slack, Chancellor. Decree dismissing the bill with costs. The plaintiff appealed.

General Assumpsit. Plea, the general issue. Trial by jury at the March Term, 1915, Washington County, Stanton, J., presiding. Verdict and judgment for the plaintiff. The defendants excepted. The opinion states the case.

Appeal in Chancery. Heard on the pleadings and finding of facts by the Chancellor, at the September Term, 1914, Washington County, Miles, Chancellor. Decree dismissing the bill with costs. The plaintiff appealed. • The opinion states the case.

Appeal in Chancery, Windham County. Heard in vacation after the September Term, 1914, on the pleadings and findings of fact by the chancellor. Decree dismissing the bill with costs. The plaintiffs appealed. The opinion states the case. This case has been twice before in this Court, see 83 Yt. 167, and 87 Yt. 57.

Petition for a new trial, brought to the Supreme Court for Chittenden County at its October Term, 1915, and then heard on the pleadings and an agreed statement of facts.

Case for negligence. Pleas, the general issue and a special plea in bar. Trial by jury at the April Term, 1912, Windham County, Fish, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Assumpsit. Plea, the general issue. Heard by agreement, in vacation after the March Term, 1915, Chittenden County, Slack, J., presiding. Judgment for the plaintiff. The defendant excepted. Heard at the January Term, 1916, of the Supreme Court, on plaintiff’s motion to dismiss the exceptions. The opinion states the case.

Trespass for assault and battery. Pleas, the general issue, son assault demesne, and a second plea in justification. Trial by jury at the June Term, 1915, Orange County, Slack, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Case for deceit in the sale of a farm. Plea, the general issue. Trial by jury at the September Term, 1914, Windham County, Waterman, J., presiding. Verdict and judgment for the plaintiffs. The defendants excepted. The opinion states the case.

Complaint seeking a quo warranto, brought to the Supreme Court for Washington County, and heard at the October Term, 1915, on an agreed statement of facts. The opinion states the ease.

Complaint for violation of an ordinance of the City of Montpelier, brought to the Montpelier City Court. Plea, not guilty. Trial by court, Harvey, City Judge. Judgment that respondent would be guilty if the ordinance were valid, but that the ordinance is void, and respondent is discharged. The State appealed. The opinion states the case.

Case for negligence. Plea, the general issue. Trial by jury at the June Term, 1915, Caledonia County, Miles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Petition for a new trial, brought to the Supreme Court for Chittenden County at its January Term, 1916, and then heard on the admission of the facts alleged. The opinion states the case. See State v. Webb, 89 Vt. 326.

Case for negligence. Plea, the general issue. Trial by jury at the September Term, 1913, Orleans County, Waterman, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. This case has been once before in this Court. See 86 Yt. 189.

'General Assumpsit. Pleas, the general issue and discharge in bankruptcy. Eeplieation, claim not scheduled, fund in question obtained through fraud, and retained in a fiduciary capacity. Trial by .court at the March Term, 1915, Franklin County, Fish, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case.

General Assumpsit. Plea, the general issue. Trial by court at the September Term, 1914, Windham County, Waterman, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case.

Case for negligence. Plea, the general issue. Trial by-jury at the September Term, 1914, Rutland County, Slack, J., presiding. Verdict and judgment for the plaintiff. The' defendant excepted. The opinion states the case.

Assumpsit. Plea, the general issue. Trial by jury at the June Term, 1914, Caledonia County, Butler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. ’While the case was pending in this Court, defendant preferred thereto a petition for a new trial on the ground of newly discovered evidence, which was served and filed and heard with defendant’s exceptions.'

General Assumpsit on a fire insurance policy. Plea, the general issue. Trial by jury at the March Term, 1915, Rutland County, Waterman, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

<p>Bailment — Liability of Bailee for Hire — Towns—Liability for Contracts of Boad Commissioner — Hiring Horse for Road Machine — Authority of Road Commissioner to Settle■ — To Issue Town Orders — Conchisiveness of Order — Right of Action on Road Commissioner’s Order — Exhaustion of Funds — Refusal of Selectmen to Provide — Objection to Evidence — Necessity—Action by Selectmen Separately— ' Effect — Instruction—Construction—“Could”—Damages in Action on Road Commissioner’s Order.</p> <p>In the absence of a special contract fixing the degree of care to be exercised by a bailee for hire, he is liable for injury to the property only in case it results from his failure to exercise due care in its use and preservation.</p> <p>A bailee for hire may, by special contract, enlarge or restrict his implied obligation to be liable for injury to the property only in case it results from his failure to exercise due care in its use and preservation.</p> <p>Under P. S. 3958, providing that the town road commissioner shall superintend the expenditure of the highway tax and have charge of keeping in repair the highways in his town, where a road commissioner hired plaintiff’s horse for use on the road machine, expressly agreeing to return the horse in as good condition as received, the town was bound by that contract and was liable for any deterioration in the horse during the bailment, regardless of whether it was owing to the road commissioner’s negligence.</p> <p>In addition to the powers expressly given a road commissioner by P. S. 3958, lie has such further powers as are necessary for the efficient exercise of the powers expressly granted, or as may fairly be implied from that statute.</p> <p>The unrestricted power of a .road commissioner to hire a horse for use on the road machine and to contract to return him in as good condition as received included by implication the right to settle and adjust all disputes concerning an injury to the animal during the bailment; and, in the absence of fraud, such settlement and adjustment, made by him with the owner by a town order drawn to the latter’s order, is conclusive and binding on the town; and that expenditure was, in contemplation of law, money expended on the highways, and so authorized by P. S. 3960, as amended by No. 126, Acts 1910, providing that all money expended on highways shall be drawn from the town treasury upon the order of the road commissioner.</p> <p>Since P. S. 3960 as amended by No. 126, Acts 1910, provides that a person in whose favor a town road commissioner’s order for money expended on the highways is drawn shall, before receiving the amount, duly indorse the order, where plaintiff let his horse for use on the town road machine, under a contract with the road commissioner, and presented to the town treasurer, duly indorsed, the road commissioner’s authorized order for a sum of money to cover the deterioration in the animal, and plaintiff had fully performed his part of said contract, he could 'maintain general assumpsit against the town for the amount of the order upon refusal of payment.</p> <p>Under P. S. 3958, providing that a town shall not be chargeable with the expense of repairing its highways after the road commissioner notifies a selectman that the money appropriated by the town for . the repair of highways is exhausted, unless incurred under the direction of the selectmen, a town is not relieved from liability on its road commissioner’s order, settling for deterioration in a horse hired for use on the road machine, under an agreement to return in as good condition as received, made when the highway repair funds were not exhausted, though they were exhausted when the order was presented for payment.</p> <p>An exceptor to the admission of evidence will be confined on review to the objection he made below.</p> <p>Nothing said by selectmen severally, each acting independently of any of the others, can affect the town.</p> <p>Erroneous instructions more favorable to an exceptor than those to which he was entitled were harmless to him, and so no ground for reversal.</p> <p>In general assumpsit against a town to recover the amount of an order drawn by its road commissioner, an instruction that if the selectmen directed the treasurer to pay all orders drawn by the road commissioner, except the one in suit, and they were so paid, and there was left a fund “which could have been applied to the payment of this order, then it was proper” so to apply it, was proper, as the word “could,” as used, meant “could lawfully.”</p> <p>In general assumpsit against a town to recover the amount of an order drawn by its road commissioner in favor of plaintiff and in settlement for the deterioration in his horse that he had let to the road commissioner for use on the road machine, under the latter’s authorized agreement to return the horse in as good condition as received, the measure of damages was the amount of the order, including interest, and not the value of the horse, for the road commissioner’s settlement with plaintiff was binding on the town.</p>

Informations severally charging each respondent with committing adultery. Several pleas, not guilty. Joint trial by jury, with the consent of the respondents, at the March Term, 1915, Washington County, Stanton, J., presiding. Verdict of guilty as to both respondents, and judgment thereon as against respondent North, but judgment arrested as to respondent Lucy Weston, because there is no allegation of time in the information against her.

Appeal in Chancery. Heard on the pleadings and findings of fact by the chancellor, at the June Term, 1915, Orange County, Slack, Chancellor. Decree for the plaintiff. Defendant Avery appealed. The following facts were found by the chancellor. The defendants Luther J. Higgins and Lelia M. Higgins, at the time when the deed and mortgages herein referred to were executed, April 17, 1914, were and ever since have been husband and wife.

<p>Sales — Warranty—Contract•—Construction—Performance—Delivery and '“Acceptance” — Time of Delivery — Burden of Proof — “On Arrival” — Time and Place for Inspection— Jury Questions — Duty of Buyer on Rejection — Rights of Buyers on Breach of Warranty — Fraud of Seller — Rights of Buyer — Presumption—Rescission of Contract — Return of Property — Action for Price — Proof—Conformity to Pleadings — Harmless Error — Evidence—Time for Inspection — Time of Notice — Circumstances Considered.</p> <p>Where a written contract for the sale of a silo specified the kind of wood of which it was to be built, it was for the court to construe the writing and to decide whether it .contains a warranty, and such a contract amounts to a warranty that the silo should correspond to the description.</p> <p>Where a seller ships a silo made to a material extend of balsam in fulfilment of a contract whereby he warranted the silo to be of . “Canadian spruce,” he has not complied with his undertaking, and, unless the buyer accepts the silo shipped, he cannot be held for its price.</p> <p>The delivery by the seller of an article corresponding with the description recited in the contract is a condition precedent to the vesting of title in the buyer, and so where the buyer of an article warranted as specified agrees to accept it on arrival at a designated place, and the seller asserts that the buyer has so accepted, the seller has the burden of proving such acceptance.</p> <p>“On arrival,” in a stipulation in a contract of sale that the buyer shall accept the property on arrival, means “following upon,” and so the provision does no more than to fix the place of acceptance as that of the destination of the shipment as distinguished from that of its origin, but does not fix any particular time nor any particular place, after arrival, for the exercise of that right of inspection to which the buyer of specific goods of a designated description is always entitled before acceptance, unless he has waived it.</p> <p>The mere opinion that the property was all right, expressed by a buyer entitled to inspection before acceptance, but before an opportunity for inspection had been afforded and while .the property was being unloaded from the car by the seller’s agents, indicated neither that the right of inspection had been exercised nor that it had been waived, for in the exercise of that right the buyer is entitled to a reasonable time and a fair opportunity.</p> <p>The time and opportunity to which a buyer is entitled for the purpose of inspection are determined by what is reasonable in the circumstances of the particular case, and, where that depends on a combination of facts and circumstances, it is a question of fact, or a question of mixed law and fact, for the jury.</p> <p>Where a seller sends the buyers property of a kind that they never purchased or agreed to take, who after learning that fact by inspection within a reasonable time reject the property and immediately notify the seller of their action and of the reason therefor, they are not required to go further and put the seller in statu quo by returning the property, but the burden is on the seller to remove it.</p> <p>Where the time within which the buyer shall exercise his right of inspection before acceptance is not fixed by the contract, the law implies that it shall be within a reasonable time, and, within the time allowed for such inspection by the contract or by implication of law, the buyer has the right of rejection if the goods he found not to comply with the contract.</p> <p>Where the seller delivered to the buyer an article of a material different in kind from that purchased and- warranted, and the buyer waived his right of inspection by failure seasonably to exercise it, in an action for the price the buyer may rely on his warranty either as a full defence, if the steps essential thereto are taken, or in reduction of damages by way of recoupment.</p> <p>The manufacturer of a silo is presumed to know of what kind of wood it is built, and if he delivers a silo to a material extent built of balsam for one sold and warranted to be of Canadian spruce, he defrauds the buyer, who upon its discovery is entitled to rescind the contract and return the silo.</p> <p>Where the buyer of a silo warranted to be of Canadian spruce, upon discovering the seller’s fraud in delivering one to a material extent built of balsam, notifies the seller of the buyer’s refusal to accept for that reason, but does not offer to return the silo, he cannot claim a rescission of the contract on the ground of fraud.</p> <p>In an action of general assumpsit, where plaintiff by its specifications seeks to recover only for the price of one “Canadian spruce silo,” and the evidence showed that more than half the lumber of which the silo in question was built was spruce, but whether Canadian spruce did not appear, the variance between the speeificatidns and the evidence would not preclude recovery.</p> <p>Where a buyer of property refuses to accept the article delivered as not being in accordance with the contract, the seller is not entitled to tender a second delivery in fulfilment of the contract after the 1 expiration of the time expressly or impliedly limited in the contract for such delivery, and the admission of evidence of such a tender in an action for the price of the article was error.</p> <p>In assumpsit for the price of a silo that plaintiff had delivered to defendants and claimed that they had accepted, but which defendants’ evidence tended to show they had refused to accept because it was to a material extent built of balsam, while the silo purchased was warranted to be of Canadian spruce, it was not error to refuse defendants’ requested instruction that the fact that they were not lumber experts and could not readily distinguish between spruce and balsam lumber should be considered on the question whether defendants acted seasonably in inspecting- the silo and giving plaintiff notice of their rejection thereof.</p>

General Assumpsit for money had and received. Plea, the general issue with notice. Trial by court at the September Term, 1915, Chittenden County, on an agreed statement. Judgment, pro forma, for the plaintiff. The defendant excepted. The opinion states the case.

<p>Intoxicating Liquors — Municipal Courts — Jurisdiction of Of-fences — Construction of Statutory Provisions.</p> <p>P. S. 5231, giving municipal courts jurisdiction to punish offences relating to the traffic in intoxicating liquor if respondent pleads guilty, but otherwise only to bind over, is repealed by No. 91, Acts 1915, giving municipal courts jurisdiction finally to try and determine prosecutions for all misdemeanors committed within their respective counties, and repealing all inconsistent provisions.</p> <p>No. 91, Acts 1915, effective August 1, 1915, and giving municipal courts jurisdiction finally to try and determine all misdemeanors committed within their respective counties, does not conflict with No. 171, Acts 1915, relating to the jurisdiction of municipal courts of offences against the liquor law, and which cannot be effective until May 1, 1916, for the jurisdiction of a city court is determined by the former until the latter takes effect.</p>

Appeal in Chancery. Heard on demurrer of defendant Edward E. Davis to the amended petition, at the April Term, 1912, Essex County, Taylor, Chancellor. Demurrer overruled, pro forma, petition taken as confessed, and decree for orator. Defendants appealed. For a fuller statement of the case, see Davis v. Davis, 81 Yt. 259.

General Assumpsit. Plea, the general issue. Trial by court at the September Term, 1913, Windham County, Miles, J., presiding. Judgment for defendant to recover its costs. The plaintiff excepted. The opinion states the case.

Petition for a writ of mandamus, brought to the Supreme Court for the County of Orange at a special term thereof held on February 28, 1916, and then heard on the pleadings, and an agreed statement of facts. The petitioner is a male citizen of the United States, forty-nine years of age, has been a resident of the town-of Brookfield in this State for the past twelve years and is now such resident.

Replevin. Plea, the general issue with notice. Trial by jury at the April Term, 1915, Windham County, Butler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

<p>Case for negligent delay in the transportation of cattle. Plea, the general issue with notice. Trial by jury at the December Term, 3912, Addison County, Miles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.</p>

Complaint for carelessly operating an automobile, in violation of P. S. 4091. Heard in tbe City Court of the City of Barre, Scott, Judge, on respondent’s special demurrer to the complaint. Demurrer overruled and complaint adjudged sufficient to which respondent excepted. Case passed to the Supreme Court before trial on the merits. The opinion states the case.

Sargent of a claim presented by Carl S. Hopkins, as trustee of Walter Bartlett and Lizzie Bartlett. Declaration in special assumpsit. Plea, the general issue. Trial by jury. Verdict and judgment for the defendant. The plaintiff excepted. This case has been once before in the Supreme Court, when the plaintiff prevailed below. See 88 Vt. 217.

Case for negligence. Plea, the general issue. Trial by jury at the April Term, 1915, Essex 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 September Term, 1915, Orleans County, Slaclc, J., presiding. Verdict directed for the defendant, and judgment thereon. The plaintiff excepted. The opinion states the case.

Appeal in Chancery. Heard on the pleadings and a master’s report at the June Term, 1915, Orange County, Slack, Chancellor. Decree, strictly pro forma, dismissing the bill with costs to defendant. The plaintiff appealed. The opinion states the case.

Hodges, presented to the commissioners on the estate of Eugene H. Plodges, Rutland County, March Term, 1915, Waterman, J.„ presiding.

<p>Probate Courts — Action of Account — Jurisdiction—Appellate Jurisdiction of County Courts — No. 86, Acts 1915.</p>

Trover for the loss of a part of a shipment of goods. Plea, the general issue. Trial by jury at the September Term, 1914, Windham County, Waterman, J., presiding. Verdict for the plaintiff. The defendant excepted. Neither exhibit referred to in the opinion ivas attached to either deposition.

Trover for the conversion of two bulls, two cows, one yearling heifer, and seventeen sheep, which defendant, as. deputy sheriff, sold on an execution in favor of one W. TI. Wright and against C. H. S. Cleveland, the plaintiff’s husband. Plea, the general issue. Trial by court at the June Term, 1914, Lamoille County, Slack, J., presiding. Judgment for the plaintiff. The defendant excepted.

Appeal in Chancery, 'Washington. .County. Heard in Chambers, August 24, 1915, on the pleadings, master’s report, and plaintiff’s exception thereto, Stanton, Chancellor. Decree overruling plaintiff’s exceptions, and dismissing the bill with costs. The plaintiff appealed. The opinion states the case.

Trespass for assault and battery. Plea, son assault demesne. Trial by jury at the September Term, 1914, Washington County, Miles, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the ease.

Appeal in Chancery. Heard on the pleadings and findings of fact by tbe Chancellor, at the June Term, 1915, Caledonia County, Miles, Chancellor. Decree for the plaintiff. The defendants appealed. The opinion states the case.

Case for negligence. Plea, the general issue. Trial by jury at the March Term, 1914, Rutland County, Miles, J., presiding. Verdict directed for the defendant. The plaintiff excepted. The opinion states the case.

Case for malpractice. Plea, the general issue. Trial by-court at the September Term, 1914, Windham County, Waterman, J., presiding. Judgment for the defendant. The plaintiff excepted. The opinion states the case.

Trepass and trover against A. B. Chappell (who was the plaintiff in an action brought before a justice of the peace, writ dated September 28, 1914, against the plaintiff herein) and P. H. Phaneuf, a deputy sheriff who served the writ in the case before the justice of the peace. The defendants severally pleaded the general issue with notice. Trial by court at the September Term, 1915, Franklin County, Butler, J., presiding. Judgment for the defendants. The plaintiff excepted.

Case against a boy thirteen years of age for with a bicycle negligently running down and injuring the plaintiff’s daughter, who was about twelve years of age, while she was walking on the sidewalk. Plea, the general issue. Trial hy jury at the December Term, 1914, Windsor County. Verdict and judgment for the plaintiff. At the time of rendition of judgment plaintiff moved for a close jail certificate. Motion denied, to which the plaintiff excepted.

Appeal in Chancery. Proceeding to foreclose an equitable mortgage on real estate wherein defendants claimed a homestead. Heard on the pleadings and finding of facts by the Chancellor, at the June Term, 1914, Caledonia County, Butter, Chancellor. Decree for the plaintiff. The defendants appealed.

General Assumpsit. Pleas, the general issue and payment. Trial by court at the March Term, 1913, Rutland County, Miles, J., presiding. Judgment, pro forma, for plaintiff on the facts found. The defendant excepted. The opinion states the case.

Case for deceit, Washington County, September Term, 1915, Waterman, J., presiding. Heard on demurrer to defendant’s plea by way of abatement of the writ. Demurrer sustained and plea adjudged insufficient. Defendant excepted. Cause passed to this Court before further proceedings. The opinion states the case.

Greenlaw, as administrator of the estate of his deceased wife and heir at law of the estate of Elizabeth A. Hayes, to vacate the report of the commissioners on the last named estate, J. IT. Hayes, administrator of said estate, appellant. Heard at the June Term, 1912, Orange County, Miles, -J., presiding, on motion of J. H. Hayes to dismiss the petition for that neither the probate court nor the county court had jurisdiction to grant the relief sought and given.

Assumpsit brought by the plaintiff, as beneficiary, upon a policy of insurance issued by the defendant upon the life of Winnie McLean.

Petition for foreclosure of a mortgage on real estate. Personal service was made upon the defendant, Davenport. The defendant, Flora M. G-raves, was without the State of Vermont, and an order of notice was issued by the Clerk of the Court of Chancery of Bennington County, under which the copies of the process and pleadings, including a notice of tailing depositions upon a motion to shorten the time of redemption, were delivered to her in New York City.

Appeal in Chancery, Orleans County. Tbe defendant Hanson appeared specially by his solicitor, and moved to dismiss the bill, at the March Term, 1915. Decree dismissing the bill as against him, with costs. The defendant Flynn did not appear. The case then proceeded between the orator and the defendant Ritchie and was heard on findings of fact by the Chancellor, in vacation after the March Term, 1915, Miles, Chancellor. Decree dismissing the bill with costs.

Action of justice ejectment, so-called, brought in the Municipal Court for the Windsor Probate District under the Municipal Court Act, No. 91 of the Acts of 1915. The writ was issued and served as a capias.

Hall, appellant. Heard on an agreed statement at the December Term. 1915, Bennington County, Butler, J., presiding. Judgment, pro forma, affirming the decree of the probate court. The appellant excepted. The opinion states the case.

Action under P. S. 3670 to recover the expense of supporting one Virgil B. Webster, an alleged transient person. Plea, the general issue. Trial by the city court of the City of Barre, Scott, City Judge. Judgment for the plaintiff. The defendant excepted. It appeared that Webster came from California to the plaintiff’s house in Calais, and while there was seized with a serious illness which developed into insanity.

Trespass on the freehold, brought to recover damages for the cutting of two trees belonging to the plaintiff.

Assumpsit upon a policy of fire insurance. Plea, the general issue with notice of special matter in defence; among other things, that the buildings burned were vacant at the time of the fire, and that the same had been allowed to remain vacant from time to time without giving notice to the defendant, as required by the policy. Trial by jury, October Term, 1915, Essex County, Slack, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

Replevin for a pair of oxen, yoke and harness. Trial by jury at the September Term, 1915, Rutland County, Stanton, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Action for false arrest and imprisonment. Plea, the general issue with notice of special matter in defence; among other things, that the defendant, who was a police officer, with the powers of a constable, “pursuant to his legal duty, on seeing said Mazzolini engaged in the unlawful sale of goods and fruit on Sunday after warning him not to do so, did arrest said Mazzolini for misdemeanor in the sale of said fruit and did him take to the public lockup in Randolph village.”…

Action on the ease to recover damages for the death of the plaintiff’s intestate, which occurred as the result of an automobile collision. Plea, the general issue. Trial by jury at the June Term, 1915, Caledonia County, Miles, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case.

Petition, under P. S. 2017, brought to the county court, to have stricken off a default judgment rendered against the petitioner as trustee, and to secure a trial as to its liability. Trial by court, September Term, 1915, Orleans County, Slack, J., presiding. Default judgment set aside and case brought forward. The petitionees excepted. The opinion states the case.

Pleas, general issue, payment and statute of limitations. Replication, traversing the plea of payment, and alleging that the cause of action did accrue within six years and thirty days next before the death of the intestate. Trial by jury, September Term, 1915, Franklin County, Butler, J., presiding. Verdict and judgment for the plaintiff. Defendant excepted. The opinion states the case.

Action on the case to recover damages for the death of the plaintiff’s intestate, caused by coming in contact with the electric wires of the defendant, brought under P. S. 2839, 2840, for the benefit of the widow and next of kin of the deceased. Plea, the general issue. Trial by jury at the September Term, 1915, Rut-land County, Stanton, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

<p>General Assumpsit. Plea, the general issue. Trial by-jury at the September Term, 1915, Chittenden County, Miles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.</p>

Covenant, on a bond under seal. Plea, the general issue. Trial by court at the March Term, 1914, Chittenden County, Fish, J., presiding. Judgment for the plaintiff. Both parties excepted. The opinion states the case. The bond was continuing in its nature and unlimited as to time. Hence, the sureties could terminate their liability as to future transactions, by notice to the obligee.

General Assumpsit, with a count in special assumpsit, to recover money paid to the defendant by the plaintiff as the purchase price of certain shares of stock in the Improved Shuttle Company of Canada, Limited, a Canadian Corporation. Plea, the general issue. Trial by court at the March Term, 1915, Chittenden County, Slack, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case.

General Assumpsit, with a count in special assumpsit to recover money paid to the defendant by the plaintiff, as the purchase price of certain shares of stock in the Improved Shuttle Company of Canada, Limited, a Canadian corporation. Plea, the general issue. Trial by court at the March Term, 1915, Chittenden County, Slack, J., presiding. Judgment for the plaintiff. The defendant excepted.

Case for Negligence. Plea, the general issue. Trial by jury at the December Term, 1913, Caledonia County, Fish, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. When a servant has the choice of two routes, one dangerous and the other safe, and he voluntarily chooses the dangerous way, he is guilty of contributory negligence and the defendant is not liable.

Action under the common counts in assumpsit with a special count joined thereto. Plea, the general issue, payment and set-off. Trial by jury at the September Term, 1915, Wind-ham County, Fish, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Appeal in Chancery. Heard on master’s report, assessing injunction damages, and upon exceptions of the oratrix thereto, at the March Term, 1913, Washington County, Fish, Chancellor. Decree, overruling the exceptions of oratrix, and awarding the defendant $83.07 costs of the main cause, and $49.70 as damages under the injunction. Both parties appealed. The opinion states the case. See Weed v. Hunt, 76 Yt. 212, 56 Atl. 9S0; Weed v. Hunt, 81 Yt. 302, 70 Atl. 564.

Book' Account. Heard on the report of the auditor and exceptions thereto by both parties at the June Term,, 1915, Caledonia County, Miles, J., presiding. Judgment on the report for the plaintiff. Both parties excepted. The opinion states the case. The court erred in disallowing the sum of $781.58 found by the auditor to be due and owing the plaintiffs for brick sold by them to the defendant, under an agreement with the defendant that payment was to be made in kind.

Book Account. Hearing on plaintiff’s motion to dismiss defendant’s pleas at the September Term, 1915, Orleans County, Slack, J., presiding. Motion denied; pleas permitted to stand as answer to the merits only, under the Practice Act, No. 90, Acts of 1915; and judgment to account. The defendant excepted to the judgment rendered; to the order limiting the effect of the pleas; and to the failure of the court to hold that the fourth plea was a bar to the action.

Appeal in Chancery. The original bill was brought to remove certain alleged clouds upon the plaintiff’s title. The defendants filed demurrers and motions to dismiss, which were overruled, with leave to answer. Thereafter the defendants filed their answers, and incorporated therein cross bills, praying for affirmative relief. No answers were,filed to the cross bills.

Action on the case under P. S. 3445 to recover for the alleged default and neglect of the defendant Stannard, as constable of the town of Barton, in caring for certain property attached by him on a writ issued in favor of the plaintiff. Plea, the' general issue, with notice of special matter in defence. Trial by court, March Term, 1915, Orleans County, Stanton, J., presiding. Judgment for the plaintiff. The defendants excepted. The opinion states the ease.

Action on the case, brought by the plaintiff as administrator, under the Federal Employers’ Liability Act, for the benefit of the next of kin of the deceased. Pleas, the general issue, and special pleas in bar. Heard on demurrer to plaintiff’s replication to the pleas in bar at the September Term, 1915, Windham County, Fish, J., presiding. Demurrer overruled and judgment entered for the plaintiff. The plaintiff excepted. The question of damages was then submitted to the jury.

Assumpsit brought by the plaintiff as receiver of the Columbian Marble Company. Plea, the general issue. Trial by jury at the September Term, 1914, Rutland County, Slack, J., presiding. At the close of the plaintiff’s evidence, the court directed a verdict for the defendant. The plaintiff excepted. The opinion states the case. Having accepted the benefit of the work done by the Marble Company, the defendant cannot keep the benefit and deny the authority to bestow it.

Appear from a decree of the probate court distributing the residue of the estate of Hannah A. Stoddard and construing the last will and testament of the said Hannah A. Stoddard. Trial by court at the October- Term, 1915, Essex County, Slack, J., presiding. Judgment, upon the facts found by the court, for the appellees. The appellant excepted. The opinion states the case.

Appeal in Chancery. Heard on facts found by tbe chancellor, at the June Term, 1913, Windsor County, Miles, Chancellor, presiding. Decree dismissing the bill, with costs. The orators appealed. The opinion states the case. No portion of a trust fund can be diverted to pay the trustee’s individual debt to the bank, unless the bank did not know and had no reason to suppose that the money was part of a trust fund.

Chittenden County. Statement by Watson, J. This ease comes before the Supreme Court by appeal from the order of the Public Service Commission.

Action for deceit in the sale of land. Plea, the general issue. Trial by jury at the December Term, 1915, Orange County, Waterman, J., presiding. Verdict and judgment for.the plaintiffs. The defendant excepted. The opinion states the-case.

<p>Account — Practice Act• — Jury Trial.</p> <p>The action of account was not abolished by the practice act, No. 90, Acts of 1915.</p> <p>A party is not entitled to a trial by jury in an action of account.</p>

Assumpsit to recover money deposited in the defendant bank, in the name of the plaintiff. Plea, the general issue and payment. Trial by jury at the September Term, 1915, Washington County, Slack, J., presiding. At the close of the evidence, both parties moved for a verdict. Verdict directed for the plaintiff to recover $1,856.51. The plaintiff excepted, claiming that the verdict should have been directed for a larger sum. The opinion states the case.

Appeal in Chancery. Petition to foreclose a mortgage. Heard on bill, answer, cross bill and report of a special master at tbe December Term, 1915, Lamoille County, Fish, Chancellor.

Assumpsit to recover for the support and relief of a pauper alleged to be chargeable to the defendant. Trial by jury at the December Term, 1915, Caledonia County, Stanton, 3., presiding. Verdict ordered for the plaintiff; judgment on the verdict. Defendant excepted. The opinion states the ease.

Case for Negligence. Plea, the general issue. Trial by jury at the September Term, 1915, Washington County, Waterman, J., presiding. Verdict directed, pro forma, for the defendant. The plaintiff excepted. ’ The opinion states the case.

<p>Ejectment. Plea, the general issue. Trial by jury at the April Term, 1915, Essex County, Miles, J., presiding. Verdict for the plaintiff. Defendant excepted. The opinion states the case.</p>

Complaint for keeping intoxicating liquor, under P. S. 5204, brought to tbe Montpelier City Court. Plea, not guilty. Trial by tbe court. Harvey, Judge. Judgment, guilty. Tbe respondent thereupon moved in arrest of judgment. Motion overruled. Respondent excepted. Tbe opinion states tbe case.

Assumpsit for money had and .received. Pleas, the general issue, with special pleas of set-off, payment and accord and satisfaction. Trial by jury at the September Term, 1915, Franklin County, Butler, J., presiding. Verdict and judgment for the plaintiff. Defendants excepted. The opinion states the case.

<p>Replevin. Plea, tbe general issue. Trial by jury at tbe June Term, Windsor County, Slack, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case.</p>