The Vermont watchman. [volume] (Montpelier, Vt.) 1883-1911, 1886-09-29

or charge was in the minds of either party. |
The court charged the jury that If the |
charges in the plaintiffs and defendants |
specifications were not meant to be charged |
and understood as a debt and credit at the |
time they were made, were in fact nothing |
but neighborly kindnesses, they should be
disallowed The jury was out until late in
the evening, but finally agreed upon YER
dict that the defendant recover costs. The |
plaintiff excepts to the ruling of the court |
| on the question of his right to recover for |
the items of his account that accrued while
defendant was married woman. Heath
x Willard and George w. Wing for plaint-
iff T. j. Deavitt and w. p. Dillingham; for
defendant
w. G.. McAllister Us. Patrick and Josiah
| Smith.-This was an action of replevn for
one three-year-old mare colt. The plaintiff
claimed, and his evidence tended to show,
that he was in poor health in the winter of
| 1884, and was then the owner of two colts
which he was desirous of disposng of, as he
he was not able to train and drive them; that
he was not Judge of horses; that he met the
defendant, Josiah Smith, who bantered him
for trade, telling him he had mare
twelve years old that was with foal and for
that reason unfit for his use tearning; that
| q few DAYS after he again met the defendant
Josiah with his father, Patrick, the other
defendant; that he then looked over the
| mare; that the defendant proposed trading
with him and asked him some questions
concerning her; that that night, which was
! SATURDAY, Une ueIenuHDIS came 10 MS HOUSe
looked over his colts, got his terms and con-
cluded the trade; that at that time the de-
fendant represented the mare to be with
foal and to be only twelve years old; that
she could and did eat dry hay and oats;
that she was not lame and that she did not
have the heaves that the defendant paid
him $40 boot money between horses and
went away; that the next morning he found
that the old mare could not eat hay nor
oats; and that upon examination by experts
che with foal. that she lame
and had considerable trouble with her
breathing and that her age was past finding
out; that the next Wednesday he saw the
defendant and asked him to trade back,
telling him that he had misrepresented the
mare TO him, which the defendant denied,
and refused to trade back that on Saturday
he went to the house of the defendants and
rendered back the old mare and the $40 and
demanded his colt, which the defendant
refused to give up; that he then brought
suit against him for false warranty and de-
ceit; that when the return day of the
writ came the defendant appeared and
, pleaded that he was a minor and therefore
that the plaintiff could not maintain the ac-
tion against him; that after he became sat
! isled that the defendant was not twenty
| one years of age he discontinued the suit
, and brought this writ of replevin. The de
: PENDANTS claimed, and their evidence tended
| to show, that the horse in question was
, owned by the defendant only one week be-
: fore he traded with the plaintiff; that he
I told plaintiff he did not know anything
about the old mare except what one Elmer
9 Trask, of whom he had her, had told him;
l that he told the plaintiff at the meeting in
the road with his father in the afternoon of
2 Saturday that Trask had told him the old
mare was but twelve years old and all the
other things that the plaintiff claimed he
: told him; that he did not make any repre-
5 sentatons at the time he traded; that the
/ old mare did and could eat dry hay and
i oats well when he owned her, was not lame
, and he believed she was with foal After
i the plaintiff rendered back the old mare and
+ the defendant refused to receive her he kept
: her in the barn until the next June, when
he turned her out into his pasture, where she
$ breathed her last on the 9TH day of July
o 1884. The plaintiff had post mortem exam
u ination upon her and found no signs of hel
!: having been with foal. The plaintiff was
, sustained in his version of the trade at his
Il house by his two sons and his hired man
}, William Carlton, and the defendant only by
his father. AT the close of the evidence the
e father, Patrick Smith, having on the stand
disclaimed any interest in the colt in ques.
y tion, the plaintiff entered a nonsuit as tC
q, him. The defendant asked the court to in
q struct the jury that the plaintiff could not
u recover, as the defendant was minor at the
u time of the transaction and could not be
held liable on his contracts or in tort
; for matters arising out of his contracts.
|, The PLAINTIFF S counsel claimed that as the
;, trade was induced by the fraud of the de
Il fendant, and that when he was sued upon
II l the contract he had disatfirmed it by his
u plea of infancy, and the plaintiff had ten
dered back to him all he received from him
$ and only asked to be placed back where
s the plea of infancy found him, that now the
e defendants infancy was no bar to the re-
l. covery of the property itself; that the de
y fendant could not disatfirm the contract and
y still hold on to the avails of it, The court
s sustained the plaintiff in his claim and sc
II charged the jury, to which the defendant
rl,.s l.gl
g Gus experience, as when it first came tC
= trial, and after the jury were empaneled
o the plaintiff was taken sick and had to have
u the case continued. At the next term he
o filed afidavits that he was unable to attend
the trial that term and the defendants filed
counter affidavits claiming that he was able
and these in turn were met with other atfi-
davits that it would be impossible for hin
to attend court at that time. The case was
then continued and at the September term
1888, it again came up for trial, but before
any evidence was introduced by eithel
party the defendant made the objection tina
the suit could not be maintained against
!. the defendant because of his minority; and
l. the court CTaft, j., presiding) ordered g
verdict for the defendant, to which the
=. plaintiff excepted and the cause went to the
r supreme court and was reversed without
+. argument. Verdict for the plaintiff Sentel
, x Kemp, G. w. Wing and j. w. Gregory
, for plaintiff; w. p. Dillingham;, c, f
F, j. Deter rs. Jason c. Spear.-This was
4. a justice ejectment appealed by the defend
Il ant 1t was heard by the court without {
a jury. The only question in the case was
T whether the defendant had, by the payment
q of certain rent after notice and agreement tC
vacate, become entitled to hold the house il
Il question for another year. The court held
4 that he had not become so entitled and gave
i, judgment for the plaintiff. The defendant
= took exceptions and the court ordered him
/ to file an additional bond of $500 by the 2Stl
a. of October or execution might issue S. G
Is Shurteff for the plaintiff; Pitkin & Hust
:, for the defendant.
+ On the coming in of the court Thursday
!. morning, September 10th, Hon. w. p. Dill
n lingham, counsel for the plaintiff announced
n that the case of Stevens as. Dudley had
=. been settled This was agreeable news tC
;. all concerned, as the case had been in court
:, twelve years 1t had been tried four times
=, resulting three times in disagreement o
: the jury and once in verdict for the
~ defendant.
Obituary.