Volume 91 — Vermont Reports

<p>Offset — Booh Account — “Conceded Credits” — Right to Try Case on Original Declaration — Auditor’s Report — Res Judicata — Contracts — Construction • — ■ Exceptions — When not Considered.</p> <p>Plaintiff brought an action of general assumpsit against defendant to recover a balance claimed to be due on certain contracts. Defendants filed a declaration in offset in book account, under P. S. 1520. Judgment to account was rendered and an auditor appointed, who heard the evidence on defendants’ declaration, and reported a balance due defendants on items of debit and credit of $38.14. He reported also that if defendants were entitled to recover another item of alleged overpayment to plaintiff, they should recover an additional sum. The county court accepted the report only so far as the balance of $38.14 was concerned, holding that the other item claimed by the defendants might be pleaded by them in offset to the plaintiff’s declaration. Held, there was really nothing for the auditor, and as the judgment on the report, so far as it was accepted, left the difference of the parties for litigation in the way provided hy law, defendants could not complain.</p> <p>Items charged in plaintiff’s specifications, and credited hy defendants in their specifications and in their declaration in offset in book account, are properly spoken of as “conceded credits.”</p> <p>A declaration in offset in hook account, under P. S. 1521, does not supersede plaintiff’s declaration, nor deprive him of the right to try his own case on his own declaration.</p> <p>Where defendants filed a declaration in offset in hook account, under P; S. 1521, and pleaded the report of the auditor as res judicata, upon which plea plaintiff joined issue, defendants’ motion for judgment on the plea was properly overruled, where it appeared that the report was accepted and allowed in part only, and that plaintiff introduced no evidence before the auditor, and, in effect, refused to submit his claim for determination by him.</p> <p>Where certain contracts for the manufacture of logs into lumber provided that the lumber should he counted in the piles and settlement made hy defendants on that basis until the lumber had been finally shipped, when any error in the count should he corrected, the court properly charged the jury that the contracts did not provide that one set of measurements should prevail more than another, hut that the correct measurement of the lumber should prevail.</p> <p>An exception taken hy plaintiff to the report of an auditor appointed to hear the evidence on a declaration in offset in hook account filed hy defendants under P. S. 1521, will not be considered in Supreme Court, where plaintiff took no exception to the final judgment in the case, and where the case comes to Supreme Court on the exceptions of defendants alone.</p>

Appeal in Chancery. Heard in vacation following the September Term, 1915, Windham County, on bill, answer, replication and evidence taken, Fish, Chancellor. Decree, on facts found by the chancellor, that the defendant Eva C. Shepardson, pay to the orators the sum of $810 with interest and costs. The orators appealed. The opinion states the case.

<p>Appeal in Chancery.. Petition to foreclose a mortgage upon real estate. After a decree for the petitioner, the case was referred to a special master to find and report the sum due in equity, who found that if a certain payment amounting to $798.86 should not be applied upon the mortgage indebtedness, there was due the sum of $2,069.49, but if the foregoing payments should be so applied the sum due was $1,129.78. Heard on the report of the special master in vacation after the December Term, 1915, Caledonia County, Miles, Chancellor. Decree that there was due the petitioner the smaller of the two sums reported. The petitioner appealed. The opinion states the case.</p>

<p>Trial — Jurymen—When not Disqualified — Challenging—Evidence — .Gross Examination — Exception to Improper Argument — Judicial Notice — Trover—Sale of Mortgaged Personalty — Principal and Agent — Charge to the Jury — Mitigation of Damages — Return or Recaption of Property.</p> <p>The mere fact that a juryman has heard in court or elsewhere what the verdict on a former trial was, does not operate as a disqualification.</p> <p>Where a jury is discharged because of an improper statement made by counsel in his opening statement, and a new jury impanelled, a juryman, drawn upon the first jury, but peremptorily challenged, is not disqualified from serving upon the second jury.</p> <p>The custom of exercising peremptory challenges in such a manner that the jurymen do not know by which party the challenges are made is commended.</p> <p>Evidence that a mare was sold with or without a warranty has no legitimate bearing upon the value of the mare, or upon the credibility of the witness’ testimony of her value.</p> <p>The general rule is that a cross-examiner need not make an offer disclosing the purpose of his cross-examination, but where such offer is made, the trial court may rely upon it and need not consider other possible aspects of the evidence offered.</p> <p>In a case remanded to county court for trial upon the question of damages only, evidence field inadmissible, at least as the case stood at the time it was offered, since it went to the question of liability, but harmless, for the same reason.</p> <p>Error in the exclusion of evidence cannot be predicated upon a theory of the ease not advanced before or at the time' of the ruling.</p> <p>An exception taken to improper argument of counsel “to save interruption,” impliedly asks the court not to interrupt the argument, and an available exception to what is said in argument cannot be saved in that way.</p> <p>The Supreme Court will take judicial notice of the proceedings in a case when in this Court upon a former trial.</p> <p>In an action of trover against the defendant for selling a bay mare upon which plaintiff held a chattel mortgage, it appeared that plaintiff placed the mortgage in the hands of a deputy sheriff for foreclosure; that the deputy sheriff seized the mare, and demanded a bond of plaintiff; that the bond was not furnished and the deputy sheriff returned the mortgage and note to plaintiff, and delivered the mare to a third party who made demand upon him for her. On thése facts, field, the officer was not the agent of plaintiff in delivering the mare to the third party, and therein went outside of his official right and duty; and his act was not an act of control and ownership by plaintiff.</p> <p>An inaccurate statement in the charge as to the evidence is cured by a reference to the evidence and the claims made by defendant in respect thereto.</p> <p>If an omission of the presiding judge to correct an inaccurate statement made in the charge is obviously inadvertent, counsel should call his attention to the matter, if it is regarded of any importance.</p> <p>An inaccurate statement in the charge in an action of trover that there is a count in deceit is harmless where the whole hody of the charge treats the action as trover and nothing else.</p> <p>The general doctrine that the return or recaption of property converted may go in mitigation of damages in an action of trover is well established.</p> <p>Where mortgaged personal property is sold by the mortgagor, without consent of the mortgagee, the mere taking of the property by an officer as agent for the mortgagee for the purpose of a foreclosure sale, is not, without more, such a re-taking as will go in mitigation of damages in an action of trover brought by the mortgagee against the mortgagor.</p> <p>In an action of trover for the conversion of mortgaged personal property brought by the mortgagee against the mortgagor, it is immaterial that, in a previous and abandoned proceeding to foreclose the mortgage, the mortgagee failed to give a bond to the officer, or that he instructed him to return the property without selling it; because the mortgagee had the right to abandon the foreclosure proceedings, and sue the mortgagor in trover for the conversion.</p> <p>In an action of trover for the conversion of mortgaged property, brought by the mortgagee against the. mortgagor, the fact that, when proceedings for a statutory foreclosure sale, previously instituted, were abandoned, the officer did not return the property to the person entitled to it, does not affect the question of damages.</p>

Assumpsit, to recover a balance claimed to be due the plaintiff under a contract with the defendants for cutting, sawing and sticking up certain lumber. Pleas, the general issue, payment, and declaration and specification in offset. Trial by jury at the September Term, 1914, Windham County, Waterman, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Action in tort for negligence. Heard on plaintiff’s motion to cite in the éxecntor of the estate of defendant Crain, who had died while the suit was pending, and on defendant’s motion to have the cause discontinued as to defendant Crain, by the appointment of commissioners upon his estate', at the April Term, 1916, Windham County, Miles, J., presiding. The court, as matter of law, granted plaintiff’s motion and overruled defendants’ motion. Defendants excepted.

Action of tort for deceit in the sale of a horse. Plea, the general issue. Trial by jury at the December Term, 1915. Caledonia County, Stanton, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case.

<p>Petition for divorce, on the ground of gross, wanton and cruel neglect and refusal to support. Heard at the June Term, 1916, Lamoille County, .Butler, J., presiding. Judgment dismissing the petition. The petitioner excepted. The opinion states the case.</p>

<p>Debt on recognizance for costs. Heard on demurrer to the ■ declaration at the December Term, 1915, Bennington County, Butler, J., presiding. Demurrer overruled and judgment rendered for plaintiff. Defendant excepted. The opinion states the case.</p>

Assumpsit. Plea, the general issue. Trial by jury at the June Term, 1915, Windsor County, Fish, J., presiding. Verdict and judgment for plaintiff. Defendant excepted. The opinion states the case. Courts of appellate jurisdiction will revise the action of the trial court in denying a motion to set aside the verdict where, upon an examination of the evidence, it clearly appears that the jury were mistaken.

<p>Action for deceit in the sale of personal'property. Plea, the general issue. . Trial by jury at the September Term, 1910, Windham County. Verdict and judgment for the plaintiff. On exceptions by defendants, the Supreme Court affirmed the judgment, except as to damages, and remanded the case (85 Vt.'190). Trial by court' on .the question of damages, at the September Term, 1912, Windham County, Butter, J., presiding.</p> <p>After the ‘findings of fact were filed, and before judgment the defendant George Tudor brought a bill in equity against the plaintiffs in the action at law, seeking to have the bill of sale' of the personal property reformed, and obtained an order enjoining the further prosecution of the action at law until the determination of the proceedings in equity. Trial in vacation after the September Term, 1914, Fish, Chancellor. Decree, dismissing the bill with costs to the defendants therein. The orator, George Tudor, appealed.</p> <p>At the April Term, 1915, Windham County, Butter, J., presiding, the injunction was dissolved, and judgment rendered for the plaintiffs upon the findings of fact previously filed. The defendants excepted.</p> <p>After the decree and judgment, defendant George Tudor was adjudged a bankrupt, and, while the two cases were pending in Supreme Court, he was granted his discharge. The defendants thereupon moved to have the decree and judgment reversed, pro forma, and both causes remanded, so that opportunity might be given to plead the discharge in bankruptcy.</p> <p>The facts are stated in the opinion.</p>

<p>Probate Courts — Reopening of Commission — “Due Heading”— Notice — Question Raised on Appeal from Report of Commissioners.</p> <p>The words “due hearing,” as used in No. 72, Acts 1908, providing that the probate court may, upon the petition of a creditor who has failed to present his claim to the commissioners of the estate of a deceased person, “after due hearing had thereon” reopen the-commission, mean a judicial examination according to the requirements of law and justice, whereof all persons interested have notice .and an opportunity to be heard.</p> <p>Where the petition of a creditor to renew a commission upon the estate of a deceased- person, was granted by the probate court without notice to the administrator of the estate or to any other person interested, the petition was granted without “due hearing” thereon, within the meaning of No. 72, Acts 1908, and the act of the probate court (it being a court of special and limited jurisdiction having statutory authority only) in this respect was without authority of law and void; and consequently the whole proceedings had before the commission under such unauthorized renewal were coram non judice and void.</p> <p>The question of the validity of an order of the probate court, renewing the commission upon the estate of a deceased person, upon petition of a creditor under No. 72, Acts 1908, is properly brought before the county court by an appeal from the report of the commissioners.</p>

. Appeal by the administrator of the estate of Edwin C. White from the report of commissioners in the estate of Edwin G. White, allowing the claim of Lizzie A. White. Heard on appellant’s motion to dismiss the proceedings at the December Term, 1915; Lamoille County, Fish, J., presiding. Motion to dismiss sustained. Exception by claimant.

<p>Replevin for two horses. Plea the general issue. Trial by court at the June Term, 1916, Windsor County, Slack, J., presiding. Judgment, on the facts found, for the defendant to recover his costs with an order that on failure of the plaintiff to pay to the defendant the sum of $32.80 and the costs, the plaintiff should return the horse to the defendant. The plaintiff excepted. The opinion states the case.</p>

Assumpsit upon, a policy of life insurance, issued by defendant upon the life of Lyman Ramsey. Plea, the general issue with notice that the defendant would rely in defence upon breaches of warranty in a reinstatement certificate, signed by the insured. Trial by jury at the March Term, 1916, Washington County Court, Butler, J., presiding. Verdict and judgment for the plaintiff. Defendant excepted. The case is stated in the opinion.

Complaint charging respondent with breach of the peace. Trial by jury in the Brattleboro Municipal Court, Frank E. Barber, Judge. Yerdict guilty. -Respondent moved in arrest of judgment. Motion overruled. Eespondent excepted. The opinion states the case.

Petition brought to the Supreme Court by petitioner as administrator de bonis non with the will annexed of the estate of Harriet C. Peck, against petitionee, as administrator de bonis non with the will annexed of the estate of Edward W. Peck, who was husband of Harriet C. Peek, and survived her, praying that the judgment in the cause “In re Estate of Harriet C. Peck, Willimi H. Clarke, Petitioner v. Sayles Nichols a/nd Gardner 8.

Appeal by the Moretown Creamery Company from an award of the Industrial Accident Board, holding that the applicant was entitled to compensation from the Moretown Creamery Company, under the provisions of the Workman’s Compensation Act, No. 164, Acts of 1915, for injuries received while engaged in the construction of a building for the Creamery Company. The opinion fully states the ease.

Action of Contract. Plea, the general issue. Trial by jury, in the Caledonia County Municipal Court, G. G. Frye, J. At the close of plaintiff’s case, the court dismissed the action for want of jurisdiction, upon the ground that plaintiff was doing business under a name other than his own, and had not complied with the provisions of No. 117, Acts of 1908. The plaintiff excepted. The opinion states the case.

Assumpsit, upon a special contract. .Plea, the general issue. Trial by court at the March Term, 1911, Washington County, Miles, J., presiding. Judgment, on facts found by the court, for the defendant. The plaintiff excepted. The case is fully stated in the opiniop.

Assumpsit on a promissory note. Defendant Gilbert H. Williams pleaded the general issue, with notice of the following special matter in defence: That the note had been materially altered by the plaintiff without the authority or approval of the defendant. Defendant J. A. Williams also pleaded the general issue, with-notice of the following special matter in defence: That he signed the note as indorser for defendant Gilbert IT.

General and Special Assumpsit, to recover for hay alleged to have been sold by plaintiffs to defendant.. Plea, the general issue. Trial by jury at the December Term, 1913, Caledonia County, Fish, J., presiding. Yerdict and judgment for plaintiffs. Defendant excepted. The opinion states the case.

Appeal in Chancery. Bill to enforce specific performance of an agreement for the sale of real estate. The defendants filed a demurrer, as a part of their answer, up'on the ground that the plaintiff had an adequate remedy at law. The demurrer was overruled pro forma, the benefit thereof being reserved to the defendants.

Appeal in Chancery. Bill to set aside a conveyance of real estate, and for an accounting for rent received. Heard on bill, answer cross-bill, and facts found by the chancellor, at the October Term, 1915, Windham County, Fish, Chancellor. Decree, adjudging the deed in question to be null and void, and ordering defendant Adelaide S. Ellingwood to account to the orator for certain rents received by her. The defendants appealed. The case is stated in the opinion.

Tort for Negligence. Plea, the general issue. Trial by-jury at tbe March Term, 1916, Franklin County, Slack, J., presiding. Verdict and judgment for defendant. The plaintiff excepted. The defendant was engaged in the business of running an automobile livery and was employed by the plaintiff to carry him from St. Albans to Burlington.

<p>Information, charging that respondent not being, licensed, advertised and held himself out to the public as a physician or surgeon, in violation of P. S. 5370, as amended by Sec. 4, No. 188, Acts of 1915. Plea, not guilty. Trial by jury in the city court of the city of St. Albans, N. N. Post, Judge. Yerdict, not guilty. Exceptions by the State. The opinion states the case.</p>

Bill in Equity brought to restrain an alleged interference with plaintiff’s water supply. Heard in vacation after the June Term, 1915, Orange County, upon bill, answer, replication, master’s report, and plaintiff’s exceptions thereto, Miles, Chancellor. Decree, overruling the plaintiff’s exceptions, dismissing the bill, and dissolving the temporary injunction previously obtained by the plaintiff, with costs. Plaintiff appealed.

<p>Contract. Plea, the general issue. Trial by jury at the June Term, Addison County, Miles, J., presiding. Yerdict and judgment for the plaintiff.' The defendant excepted. The opinion states the case.</p>

Tort to recover for personal injuries caused by the alleged negligence of defendant. Plea, the general issue. Trial by jury at the April Term, 1916, Windham County, Miles, J., presiding. Verdict and judgment for plaintiff. Defendant excepted. The case is fully stated in the opinion. There was no expert testimony introduced as to the probable duration of the plaintiff’s injury nor as to future disability.

Information for burglary. Plea, not guilty. Trial by jury at the December Term, 1915, Orange County, Waterman, J., presiding. Verdict, guilty of larceny of property of the value of $15. Judgment on the verdict. The respondent excepted. The opinion states the case. ■

<p>Appeals in Chancery — Foreclosure—P. S. 1307.</p> <p>Chancery appeals are a matter of statute and can he had only by force of the statute; and therefore an attempted appeal from a decree of foreclosure, without the permission of the chancellor, as provided in P. S. 1307, will be dismissed.</p> <p>An appeal from a decree of the court of chancery sustaining the assessment by the clerk of the sum due in equity upon the foreclosure of a real estate mortgage, is an appeal from a decree of foreclosure within the meaning of P. S. 1307.</p>

<p>Motion to Dismiss — Amendment—Returns—Judicial Writs— Description of Defendant as Foreign Corporation — Attachment — Perfecting Service.</p> <p>After overruling a motion to dismiss because of insufficient service of the writ, as shown by the officer’s return, the court may properly allow the return to be amended.</p> <p>A writ of summons and attachment is not a judicial writ.</p> <p>The statement in a writ that the defendant is a corporation having its principal office in Boston in the State of Massachusetts prima facie establishes its status as that of a foreign and non-resident corporation.</p> <p>Where a defect in a writ, made the ground of a motion to dismiss, is one that may be cured by amendment, the defendant is not entitled to have the writ dismissed, as against a subsequent motion . for leave to amend.</p> <p>Defendant was described in the writ as a corporation without designating the State of its incorporation. Service was made by attaching defendant’s property by copy lodged in the town clerk’s office, and by delivery of a copy of one described as defendant’s agent “for want of a designated service of process agent within this State.” Held, the defect in the description of defendant might be cured by amendment, and, since the jurisdiction of the property acquired by the attachment afforded a basis for retaining the suit, service might thereafter be perfected as required by statute.</p>

Assumpsit in tbe common courts. Pleas, the general issue. Payment and accord and satisfaction. Trial by jury, at the September Term, 1915, Washington County, Waterman, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The plaintiff sought to recover a balance claimed to be due upon a written contract for two granite monuments, known as the “G-. Lowe” and “L. LoweB monuments, manufactured by-plaintiff and by it sold and delivered to the defendant.

<p>Equity — Demurrer—Decree—Test of Finality — Appeal—When Supreme Court Will Dismiss Case of Its Own Motion.</p> <p>An order overruling a demurrer to a bill in equity and giving the demurrant leave to replead is not a final order or decree from which an appeal may he taken, under P. S. 1307.</p> <p>The test of the finality of a decree in chancery from which an appeal lies is that it settles the rights of the parties on the issues made by the pleadings.</p> <p>When it appears on the fact of the papers that an equity case is not ’ properly in Supreme Court, the Court will act of its own motion and dismiss the appeal.</p>

Action of Tort, to recover damages for injuries received by plaintiff’s automobile, as the result of a collision with an automobile owned by defendant Harrow, and driven by defendant Whittaker, his employee. Plea, the general issue. Trial by jury at the April Term, 1916, Windham County, Miles, J., presiding. Yerdict and judgment for plaintiff. Defendant excepted. The opinion fully states the case.

Action in Tort for Deceit. Heard on demurrer to the declaration at the September Term, 1916, Washington County, Fisk, J., presiding. Demurrer overruled, declaration adjudged sufficient. Defendant excepted, and ease certified to the Supreme Court for hearing on the demurrer before trial on the merits in county court.

Two cases heard together. The first case was an action of ejectment. Plea, the general issue. Trial by court on the report of a referee at the September Term, 1913, Franklin County, Slack, J., presiding. Judgment for plaintiff. Defendant excepted.

Assumpsit upon a promissory note. Plea, the general issue, with notice. Trial by court at the September Term, 1916, Washington County, Fish, J.', presiding. Judgment for defendants, on facts found by the court. Plaintiff excepted. The finding of facts stated that on July 9, 1915, plaintiff and defendants entered into a written contract whereby plaintiff agreéd to sell and defendants agreed to purchase plaintiff’s dry goods business and stock of merchandise.

Action to recover damages for an alleged breach of warranty in the sale of an automobile by defendant to plaintiff. Plea, the general issue. Trial by jury at the June Term, 1916, Orange County, Stanton, J., presiding. Verdict and judgment for plaintiff. Defendant excepted.

Assumpsit to recover taxes assessed by the plaintiff town upon three separate pieces of real estate owned by defendant. Plea, the general issue. Trial by jury at the December Term, 1915, Addison County, Slack, J., presiding. Verdict for the plaintiff. The defendant excepted. The case is stated in the opinion.

Assumpsit, brought by plaintiff as trustee of the bankrupt estate of the Cutler, Storer and Fay Company, to recover the amount collected by defendant; after the bankruptcy, on two contracts for the manufacture of granite monuments. Plea, the general issue. Trial by jury at the September Term, 1915, Washington County, Waterman, J., presiding. Verdict for plaintiff. Defendant excepted. The case is stated in the opinion.

Indictment for Murder. Plea, not guilty. Trial by jury at the March Term, 1915, Rutland County, Waterman, J., presiding. Verdict of guilty of murder in the second degree. Respondent excepted. The case is stated in the opinion. The remark of the state’s attorney in regard to the previous testimony of Rose Vananden was improper. Fellows et al. v. Champion International Co., 83 Atl. 1091; Davis v. Randall, 85 Vt. 70; Citizens’ Savings Bank v. Fitchbttrg Fire Ins.

Ejectment. Plea, the general issue. Trial by court at the December Term, 1915, Windsor County, Miles, J., presiding. Judgment for the plaintiff. Defendant excepted. The opinion states the case. The real estate for which this actionds brought was not conveyed to the wife to her sole and separate use, and the husband has the right to possession and control of the property and should be joined as party plaintiff. Laird v. Berry, 74 Yt. 454; Bishop v. Beadsboro Chair Mfg.

Case for Negligence. Plea, the general issue. Trial by-jury at the September Term, 1915, Franklin County, Butler, J., presiding. Verdict for the plaintiff. Defendant excepted. The opinion states the facts.

Appeal in Chancery. Heard on bill and answer and facts found by the chancellor in vacation after the September Term, 1915, Washington County, Fish, Chancellor. Decree for the plaintiff. Defendant appealed. The opinion states the facts. This case was before the Supreme Court at the May Term, 1915, on appeal by the plaintiff from a decree in favor of the defendant, and is reported in 89 Yt. 233. The decree was reversed pro forma and the cause remanded for further hearing.

Appeal in Chancery. Heard on demurrer to the bill of complaint, in vacation after the March Term, 1916, Washington County, Butler, Chancellor. Decree, sustaining the demurrer, adjudging the bill insufficient, and dismissing it with costs. Plaintiff appealed. The case is stated in the opinion.

Appeal in Chancery. Heard on bill, answer and facts found by the chancellor, in vacation after the June Term, 1915, Windsor County, Fish, chancellor. Decree for the defendant. Plaintiff appealed. The orator owed no duty to the defendant who was a trespasser, and so there can be no question of laches here. Laches is the neglect to do something which by law a man is obliged or in duty bound to do.

Heard at the September Term, 1916, Washington County, Fish, J., presiding. Judgment for the plaintiff. Defendant excepted. The opinion states the facts. The question of notice, here raised, is purely statutory and involves no constitutional considerations. Gibson, Apt., 154 Mass. 378; Waldron v. Woodman, 58 N. H. 15; Hanley v. Bussell, 63 N. H. 614.

Tort. . -Plea the general issue. Trial by jury before the municipal court for the Windsor probate district. Verdict for the plaintiff. Exceptions by defendants. The defendant Clyde E. Cook was the minor son of the defendant, Walter M. Cook. The opinion states the case. There was a presumption of innocence in favor of the defendant, which is evidence in his favor. Ctwrier v. Richardson, 63 Vt. 617.

Prosecution for operating an automobile without lights, in violation of P. S. 4094 as amended by No. 147, Acts 1912, § 1. Plea not guilty. Heard upon an agreed statement of facts, in the city court of the city of Barre, Scott, Judge. Judgment, guilty. The respondent excepted. The opinion states the case. An automobile is not “operated” when standing still with none of its machinery in motion.

Prosecution, tinder P. S. 5893, for keeping a house of ill fame. Plea, not guilty. Trial by jury in the city court of the city of Barre, Scott, Judge. Verdict, guilty. Respondent excepted. The opinion states the ease. It was error to allow the witness Lacroix to testify that he was drinking while at respondent’s house.

Two Petitions brought by the Peru Turnpike Company, a corporation organized under the provision of Chapter 92 of the Acts of 1814, against the selectmen of the town of Peru and the selectmen of the town of Winhall respectively, under P. S. 3835. Heard on the report of commissioners, appointed in accordance with the provisions of P. S. 3836 at the June Term, 1915, Bennington County, Fish, J., presiding. Judgment, accepting the report of the commissioners.

Special Assumpsit. Pleas, the general issue, and the Statute of Frauds. Trial by jury at the March Term, 1916, Washington County. Butler, J., presiding. Verdict for plaintiff. Defendant excepted. The opinion states the case.

Complaint for selling and keeping with intent to sell intoxicating liquor. Plea, not guilty. Trial by jury in the Caledonia County Municipal Court, Frye, Municipal Judge. Verdict, guilty. Respondent excepted. The opinion states the case. The jury was not a lawful jury.

Case for Negligence. Plea, the general issue. Trial by jury at the June Term, 1914, Caledonia County, Butter, J., presiding. Verdict for plaintiff. Defendant excepted. The opinion states the case.

Appeal in Chancery. Heard on bill, answer, report of special master, and exceptions of both parties thereto at the June Term, 1915, Caledonia County, Miles, Chancellor. Decree, dismissing the bill with costs. Plaintiffs appealed. The opinion states the case.

Complaint, charging respondent with setting np, promoting and aiding in a lottery, under P. S. 5936. Plea, not guilty. Trial by court in the Brattleboro Municipal Court, Barber, Municipal Judge. Judgment, guilty. Eespondent excepted. The case is stated in the opinion. The question as to the right of the municipal court to try-respondent without a jury is properly raised in Supreme Court by exception to the judgment.

Contract, for money had and received. Plea, the general issue. Trial by court at the June Term, 1916, Windsor County, Slack, J., presiding. Judgment for the plaintiff. Defendant excepted. The opinion states the case.

Appeal in Chancery. Heard on demurrer to the bill of complaint in vacation after the September Term, 1915, Washington County, Waterman, Chancellor. Decree, sustaining the demurrer, adjudging the bill insufficient and dismissing it with costs. The plaintiffs appealed. Statement by Watson, J.: The bill in this case was, pro forma, held insufficient on demurrer and dismissed for want of equity. The cause is here on plaintiffs’ appeal.

Appeal in Chancery. Heard on demurrer to the amended bill of complaint at the September Term, 1915, Windham County, Fish, Chancellor. Pro forma decree, overruling the demurrer and adjudging the amended bill sufficient, and for the plaintiffs in accordance with the prayer of the amended bill, with costs. Defendant appealed. The opinion states the case.

<p>General Assumpsit. Pleas, the general issue and setoff. Trial by jury at the June Term, 1916, Addison County, Miles, J., presiding. Verdict for plaintiff. Defendant excepted.</p> <p>At the close of the plaintiff’s case, the defendant moved to dismiss the action for want of original jurisdiction in the county court, for that on the plaintiff’s evidence, the sum or matter in demand did not exceed two hundred dollars, as provided in P. S. 1351 and 1390; and for that the plaintiff was well aware of the amount of his claim and did not act in good faith in bringing the suit. The motion was overruled, and the defendant excepted.</p> <p>The county court had-no jurisdiction of the action, the amount in demand being less than $200. P. S. 1351, 1390, Miller v. Livingston, 37 Yt. 467; Southwick v. Merrill, 3 Yt. 320; 11 Cye. 775, 776; Brainard v. Austin, 17 Yt. 650; Field v. dall, 51 Yt. 33; Madison v. Spitsnogle, 58 Iowa 369; Dewitt Go. v. Wischkemper, 95 Texas 43.</p> <p>The jurisdiction of the county court should be sustained whenever resorted to in good faith. Fdgerton v. Smith, 35 Yt. 573; Loyal v. Barney, 20 Yt. 154; Brañnard v. Austin, 17 Yt. 650.</p> <p>Bad faith will not be presumed. In order to oust the county court of jurisdiction, it must be affirmatively shown that plaintiff brought suit therein in bad faith. Bickford v. Travelers’ Ins. Co., 67 Yt. 418; Drown v. Forrest, 63 Yt. 557; Mellen v. Accident Ins. Go., 83 Yt. 242.</p> <p>Defendant’s exception to the charge is unavailing because it did not point out wherein it was claimed to be defective. Howell v. Fuller, 59 Yt. 688; Lee v. Follensby & Peck, 86 Yt. 401; Goodwin v. Perkins, 39 Yt. 598; Knight v. Smythe, 57 Yt. 529.</p>

Action brought under the Federal Employers’ Liability Act to recover damages for personal injuries suffered by plaintiff while in the employ of defendant. Plea, the general issue. Trial by jury at the April Term, 1916, Essex County, Waterman, J., presiding. Verdict for plaintiff. Defendant excepted.

Tort for negligence. Plea, the general issue. Trial by jury at the December Term, 1915, Caledonia County, Stanton, J., presiding. Yerdict for plaintiff. Defendant excepted. The opinion states the case.'

Action to recover for personal injuries, brought under the Federal Employers’ Liability Act. Plea, the general issue'. Trial by jury at the March Term, 1916, Orleans County, Waterman, J., presiding. Verdict for the plaintiff. Defendant excepted. The opinion states the case.

Indictment for murder. Plea, not guilty. Trial by jury at the June Term, 1915, Windsor County, Fish, J., presiding. Verdict, guilty of murder in the first degree. Respondent excepted. The opinion states the case.

Appeal in Chancery. Heard on demurrer to the bill of complaint in vacation after the September T'erm, 1915, Washington County, Waterman, Chancellor. Pro forma decree overruling the demurrer and adjudging the bill sufficient. Defendant appealed. The opinion states the case.

Case for negligence. Plea, the general issue. Trial by jury at the September Term, 1915, Rutland County, Stanton, J., presiding. Yerdict for plaintiff. Defendant excepted. The opinion states the case.

Contract. Plea, the general issue. Trial by jury at the June Term, 1916, Caledonia County, Waterman, J., presiding. Verdict for plaintiff. Defendant excepted. The opinion states the case.

Trover to recover tbe value of ten shares of the capital stock of the Granite Savings Bank & Trust Company of the City of Barre. Plea, the general issue. Trial by court, upon an agreed statement of facts, at the March Term, 1916, Washington County, Butter, J., presiding. Judgment for defendant. Plaintiff excepted. The opinion states the case. The sale by the executor to himself was fraudulent.

Generad and Speciad Assumpsit. Plea, the general issue. Trial by jury at the March Term, 1916, Chittenden County, Stanton, J., presiding. Verdict for plaintiff. Defendant excepted. The opinion states the case.

Appeal in Chancery. Heard on demurrer to the bill of complaint in vacation after the March Term, 1916, Washington County, Butler, Chancellor. Decree, sustaining the demurrer, adjudging the bill insufficient and dismissing the same. Plaintiff appealed. The opinion states the case.

Action brought under the Federal Employers ’ Liability Act, (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]), to recover damages for personal injuries alleged to have been sustained by the negligence of defendant. Plea, the general issue. Trial by jury at the December Term, 1915. Caledonia County, Stanton, J., presiding. Verdict for plaintiff. Defendant excepted. The opinion states the case.

Appeal in Chancery. Heard on bill and answer and facts found by the chancellor at the September Term, 1915, Rutland County, Fish, Chancellor. Decree for plaintiff. Defendants appealed. Statement by Watson, J. This case was heard before, and facts found by, the chancellor. Among other things reported and noticed in the opinion, the chancellor states the following facts: The defendants did not at first claim to own as far north as they now claim.

Assumpsit in the common counts. Plea, the general issue. Trial by the city court of the City of Barre, Scott, Judge. Judgment on facts found by the court that the plaintiff recover of defendant Mann the sum of $157 and of defendant Johnson the sum of $155. Defendant Mann excepted. The opinion states the ease. The alleged promise of defendant Mann was within the statute of frauds, since defendant Johnson was not to be released thereby.

Contract. Plea, the general issue. Trial by jury at the December Term, 1915, Bennington County, Butler, J., presiding. At the close of the evidence the court directed a verdict for both defendants. The plaintiff excepted. The opinion states the ease.

Petition for a writ of mandamus brought to the Supreme Court for Washington County, and heard at the May Term, 1917, on an agreed statement of facts. The opininon states the case.

Tort to recover damages for the alleged alienation of the affections of the plaintiff’s husband. Plea, the general issue. Trial by jury at the June Term, 1916, Orange County, Slanton, J., presiding. Verdict for plaintiff. Defendant excepted. The opinion states the ease.

Case for Negligence. Plea the general issue. Trial by jury at April Term, Windham County, Miles, J., presiding. At the close of all the evidence the defendant moved for a directed verdict, which motion was overruled, and defendant given an exception. General verdict for plaintiff. Both parties excepted. The opinion states the case.

Appeal in Chancery. Heard on bill and cross-bill, answers, and facts found by tbe chancellor, in vacation after the June Term, 1916, Franklin County, Slack, Chancellor. Decree for plaintiff, and dismissing defendants’ cross-bill. Defendants appealed. The opinion states the case. The relation of the parties under the contract was that of mortgagor and mortgagees. Van Dyke & Drew v. Cole, 81 Yt. 379; Vermont Marble Go. v. Mead et al., 85 Yt. 20; Pom. Eq. Jur.

Case eor Negligence. Plea, the general issue. Trial by jury at the September Term, 1915, Windham'County, Fish, J., presiding. Verdict and judgment for plaintiff. Both parties excepted. The opinion states the case. At the close of all the evidence, defendants moved for a directed verdict. Motion overruled, subject to defendants’ exception.

Complaint for breach of the peace. Plea, not guilty. Trial by jury in the Brattleboro Municipal Court, Frank E. Barber, Judge. Verdict, guilty. Respondent excepted. The opinion states the ease.

Appeal in Chancery. Heard on bill. Answer, replication, and facts 'found by tbe chancellor in vacation after the June Term, 1915, Caledonia County, Miles, Chancellor. Decree for plaintiffs. Defendant appealed. The opinion states the case.

Case against defendant as a common carrier. Plea, the general issue. Trial by jury at the December Term, 1915. Caledonia County, Stanton, J., presiding. Verdict and judgment for plaintiff. Defendant excepted. The opinion states the case.

Tort. Plea, the general issue with notice of special matter in set-off. Trial by jury in the city court for the City of St. Albans, N. N. Post, Judge. Verdict for plaintiff. Defendant excepted. The opinion states the case.

Case brought under P. S. 4506 for injuries claimed to have resulted from retaining in defendant’s employ a station agent known to be addicted to the use of intoxicating liquor as a beverage. Plea, the general issue. Trial by jury at tbe April Term, 1916, Windbam County, Miles, J., presiding. Verdict directed for defendant, and judgment thereon. Plaintiff excepted. The opinion states the case.

<p>General and Special Assumpsit. Plea in. abatement, alleging that none of the parties resided within the jurisdiction of the court. Trial by the court at the December Term, 1916, Orange County, Fish, J., presiding. On facts found by the court, the plea was overruled, and judgment rendered thereon for plaintiff. Defendant thereupon objected to the assessment of damages by the court claiming a right to a jury trial for this purpose. Objection overruled. Defendant excepted. The opinion states the case.</p>

Appeal in Chancery. Heard on bill, answer, replication and facts found by a special master at the September Term, 1916, Washington County, Stanton, Chancellor. Decree, reinstating plaintiff in membership in defendant society, but not dissolving the defendant. Plaintiff appealed. The opinion states the case. The dissolution of the society should have been decreed. Lafond v. Deems, 52 How. Pr.

Replevin. Plea, the general issue. Trial by jury at the September Term, 1916, Washington County, Butler, J., presiding. At the close of all the evidence, the court directed a verdict for plaintiff. Defendant excepted. The opinion states the case. The case shows an executory contract for the manufacture Of an article not in esse at the time the contract was made. The article to be manufactured was to be delivered at a future date and had not been accepted by plaintiff.