Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1876-01-07

uemanl, When the statute says AZ shall not
be, the counsel denied the claim as being
without any foundation.
Question fourth-W Whether the plaintiff
is barred from further prosecuting the same
because be has ASSURED his attorneys, that
If they recover, they shall be paid for their
services and expenses, and the balance only
shall be demanded by him Of them-cOun-
sci for plaintiff considered was sufficiently
disposed of for the reason that the doctrine
Of the ass gnability Of chooses IN action was
too well settled to admit VI argument.
WEDNESDAY, Jan. :, 1876
At the op,ning OF the court yesterday after
noon. the case ul Charles j. Alger IS \. p.
kennedy was commenced. This was an &C
ton OF special assumpsit for rent due under
lease from the plaintiff to the defendant
Plea, general issue. with notice Of special
matter in defence 1t was tried by jury,
and a verdict was found for plaintiff for
$40, 0i damages and his cost. 10 the charge
OF the court the plaintiff objected TO the
evidence of defendant which tended to sus
tain the allegations IN his notice of special
matter in defence lie claimed first, that
the evidence of the defendant to sustain his
special matter in defence should have been
excluded for the reason that 1t contradicted
the terms Of the lease and that II did not
tend - show an eviction of the defendant
by the plaintiff. Second and third. the hrst
and second requests of the plaintiff should
have been granted. Fourth, the court was
in error IN his charge, IN assuming there
WAS an applied warranty on the part OF the
landlord that the premises are IN good CON
dition. Filth. the construction OF the lease
was question for the court. and should
not have been submitted to the Jury
~ tat 10, Ha1 4
that the charge of the court was correct
nier this charge thejurY iouud;tho fact that
the sub-cellsr was moi. ineludei in the lease.
andthereGore the defendant was not charged
with any obligation IN respect 10 1t He was
justified IN leaving the premises on accounted
the filthy condition Of the sub-cellar. and the
tenant having boen deprived of the benet
clal enjoyment Of the property by neglect OF
the landlord Is not bound to pay rent.
Second The court was correct in submit
ting the question 10 the jury as to whether
the sub-cellsr was part OF the premises
leased. ParOl evidence Is admissible to
show the application OF written instru-
ment to the subject matter of it. l.. l..
Lawrence for plaintiff II Ballard for de
iendaut
The next case heard was that of Francis
Gonyeau vs. Town of Milton. This was an
personal injury sustained by the plaintiff By
an accident on highway of the defendant
town. Plea. general issue. Trial by jury and
verdict for plaintiff $4,000. Exceptions
were taken TO the ruling and decision of
the court on the subject Of notice by plain
TIL to defendant OF the injury and claim Tor
damages within thirty days as required By
statute. Defendant claimed. First, There Is
no evidence in the case tending to show
that he was ever "bereit Of his reason"
within the meaning of the statute. Second
That if he was 50 b relt, his own statement
that lac vas capable OF exercising his men
tai faculties eight days before the expira-
ton of the period specified, was conclusive
against him Third If the jury fed the
statement Of plaintiff is true, he is not en-
titled to recover for want of notice required
by the act. 70 the refusal of the court to
charge ss requested the defendant excepted
Me-srs +. K. Hard and W L. BurnRp for
plaintiff T.. j. Phelps for defendant.
The next hearing was that Of lsadOre
Roscoe VS. James Ii. Hutchinson. This
was an action OF book account. On report
of auditor, Judgment was rendered for the
defendant for 81 POS 25 and costs. Excep-
tions were taken by both parties. The mat
ter in controversy grows out OF Il contract
made between the parties in 1858. in refer
ence to the building of house by the par
ties jointly. upon land Of defendant. out
ofwhich disagreement having arisen each
claims OF the other the worth Of his labor
and materials each put in to the building
of the house II. Ballard for plaintiff l..
+ Wilbur for defendant.
THURSDAY, Jan. D, 1876
At hallpast ten yesterday morning the
hearing OF the appeal of Jonathan Baker
Il ais an re. Polly Cary's estate was com
menced. This is an appeal from decree of
the Probate Court distributing the entire
estate OF Polly Gary. deceased, after pay
ment OF debts. in accordance to the provis-
ions OF her alleged will Trial by court,
upon an agreed statement Of facts and the
decree of the Probate Court affirmed pro
fornid. to which appellants excepted. The
only question involved Is whether the mar
rage of the testatrix after the execution OF
the will, worked a revocation OF the will
and if not whether the will was operative
az to that portion OF the property which
was personal and which amounted to about
SIS. 900 4 r. Hard and Park Davis for
appellants D. Roberts and l. j. Phelps
Tor executors.
The next case. that of james Malley,
ap'ee, vs. Lewis Weinman, apt. was com
menced at four o clock yesterday afternoon
This was an action of general assumpsit.
Plea general issue. trial by jury and YER
diet for defendant The plaintiff offered
10 evidence a note signed by the defendant
payable to the order of the firm OF which
the plaintiff was partner. and endorsed
in blank by the payess The court admit
ted the introduction OF the note to which
the defendant objected No other evidence
being offered, the court directed a verdict
for the defendant. The case comes to this
court On the plaintiffs exceptions to the
ruling OF the court that the enderser could
not recover under the general counts. D.
Roberts aud h Ii. Talcott tor piaintif K
H. Start tor defendant. 81
The last hearing in the afternoon was
that Of Maria c. Stacy, admx. rs o 1.
Bostwick and NJ d. L. Thompson. This
was an action of ejectmen, Plea general
issue and trial by referee. 1t comes to this
court on exceptions by defendants 70 the
ruling Of the court which excluded the de-
clarations Of Anson Bostwick, made while
be was in possession Of said premises, that
be held them adversely, and II the jude
inent, pro forDla, for the plaintiff, ON the
ground, first. that declarations by party
10 possession Of real estate against interest
tending to limit his title is sdmissabis in
evidence Second. that judgment. should
have been found upon the facts ss
found BY the referee; third, that " en-
title plaintiff IN sjectment to recover
] upon the strength Of u title BY adverse