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Thorp v. Railroad Company.

ticket which was delivered to him at St. Albans, on the 4th of May, 1885. The plaintiff on that day shipped six horses and a buggy, at St. Albans, to be transported over the Central Vermont and connecting roads, of which the defendant road is one, to Woonsocket, R. I., and alleges that in consideration of his agreement to pay the charges for the transportion of such property, said live-stock ticket was issued to him. Said ticket was made good for one trip only, on a freight train, from St. Albans to Providence via Worcester and Nashua, as per conditions on back. The conditions provided that the person named in the ticket was entitled to ride upon the freight train, of which his car formed a part, for the purpose of taking care of his stock, and that he should go with it and assume the care of it. The plaintiff accepted the ticket upon the conditions named, and agreed to be governed by them by writing his name under the conditions printed on the back of it, and alleges that by virtue of said ticket only the Central Vermont R. R. Co. agreed to transport him between the points named in it on a regular passenger train, and that he had, before said 4th of May, been transported on said Concord railroad, in passenger cars, by exhibiting to the conductors a ticket like the one received on the 4th of May, 1885.

Upon the facts as alleged in the replication, had the conductor the legal right to eject the plaintiff from the cars? The only evidence that the plaintiff offered to the conductor to show his right to ride on a passenger train of the defendant was the livestock ticket, and, as we have seen, that ticket limited his right to ride on a freight train, and upon the conditions herein before named.

The right of a railroad corporation to define and limit the train upon which a passenger, using a ticket, is entitled to ride is undoubted, and the acceptance of such a ticket is only evidence of the right to use it on the train named in it. That a conductor has a right to demand fare of a passenger, or evidence that he has paid it, and upon his refusal to pay fare or to produce evidence that he has paid it, to eject him from the car at a proper place and in a proper manner, was settled by this court in

Thorp v. Railroad Company.

Jerome v. Smith et al., 48 Vt. 230. It is alleged in the plea, and not denied in the replication, that the conductor, before he ejected the plaintiff, demanded his fare and he refused to pay it, and that the only evidence exhibited to the conductor showing his right to remain in and to ride upon the car was said live-stock ticket. As we have seen that only entitled him to ride upon a freight train.

The fact alleged of his having been permitted to ride in passenger cars upon tickets like the one on which he was attempting to ride when ejected, does not change or vary the legal rights of the parties, as evidenced by the ticket accepted by the plaintiff on the 4th of May, 1885.

The replication does not answer the plea, or allege facts which justify the claim made, and the judgment sustaining the demurrer and adjudging the replication insufficient, is affirmed and judgment rendered for the defendant.

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Smith v. Town of Franklin.

SMITH v. TOWN OF FRANKLIN.

Jury. Statute of Limitations. Demand.

1. Where there is any evidence tending to support the claim of the plaintiff, he may go to the jury, even though that evidence is contradictory. 2. Where a debt, whether created by the deposit of money or otherwise, is payable on demand, a demand will not be presumed within six years, if the terms of the contract or the circumstances of the transaction are such as to indicate that the parties contemplated delay in the making of such demand.

3. Plaintiff testified that in 1863 he enlisted for defendant town and that he left both his government and town bounty with defendant until he should return from the war and call for it, upon the representation of one of the selectmen that the town would pay him interest. This suit was begun in 1887. Held, that the plaintiff was entitled to go to the jury.

General assumpsit. Pleas, the general issue and statute of limitations. Tried by jury September Term, 1888, Taft, J., presiding.

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The plaintiff claimed by his specifications to recover for "cash left in trust Nov. 1, 1863, $480.00, with interest."

The plaintiff proved the vote of the defendant town to pay a bounty of three hundred dollars, and that the selectmen for the year 1863 were Roby, Marsh and Cleveland.

The plaintiff then introduced Roby as a witness, who testified in substance that he represented the defendant in the enlistment of the plaintiff among others; that the plaintiff did enlist to the credit of the defendant, and was entitled to receive from the town as bounty $300.00; that this was not paid by the town directly to the plaintiff, but was paid to the said Marsh as his agent upon an understanding with the plaintiff.

The plaintiff in his own behalf testified that said $300.00 never had been paid to him, and that no order had ever been drawn in payment therefor to his knowledge, and that no arrangement had ever been made by which Mr. Marsh was to

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Smith v. Town of Franklin.

receive this and his government pay as his agent, but that he had consented to leave his town bounty and to pass over his government money to the town to be kept by it upon the payment of interest until he should return and call for it; that he had done this upon the representation of Mr. Marsh, who told him that the town was hiring money and would as lieve pay him interest as any one; that he had never received any portion of the money and never called for it until some two years before the bringing of this suit.

Upon the conclusion of the plaintiff's case, the defendant moved the court to order a verdict in its favor, which was done. Exceptions by the plaintiff.

Charles G. Austin and Willard Harrington, for the plaintiff.

If the transaction was strictly a loan, the statute of limitations would not begin to run until it fell due; and that was not until it was demanded in 1885.

If, on the other hand, this was a trust on the part of the town, the statute would not begin to run until an express demand. Wood Lim. 8. 142; Payne v. Gardner, 29 N. Y. 146; Payne v. Slate, 29 Barb. 634; Sweet v. Irish, 6 Barb. 467; Ingraham v. Baldwin, 9 N. Y. 47; Jackson v. Hotchkiss, 6 Cow. 403; Jackson v. Pierce, 10 Johns. 417; Hayer v. Pruyn, 7 Paige, 470; Sullivan v. Fosdick, 10 Hun. 173; Herrick v. Woolverton, 41 N. Y. 600; Finkbone's Appeal, 86 Penn. 368; Bank v. Weedon Admr., 18 Md. 320; Howell v. Adams, 68 N. Y. 314.

Ballard & Burleson and Cross & Start, for the defendant.

The debt of this plaintiff was a debt against the defendant payable on demand, and the statute of limitations would run from its date. No arrangement with one of the selectmen could alter the time of payment. Hartwell v. Newmark, 41 Vt. 337; Wrisley v. Waterbury, 42 Vt. 228; Thrall v. Mead, 40 Vt. 540; Shaw v. Silloway, 5 N. E. 466; Kingsbury v. Butler, 4 Vt. 458; Western Union Telegraph Co. v. Clark, 2 N. E. 396.

Smith v. Town of Franklin.

If a demand was necessary to put in operation the statute, then the court should presume that such demand was made within six years. Codman v. Rogers, 10 Pick. 112; Learned v. Foster, 117 Mass. 365; Dodge v. Essex Insurance Co., 12 Gray, 65; Butts v. Vicksburg, and M. R. Co., 63 Miss. 462; Shutts v. Fingar, (N. Y.) 1 Cent. 731.

If there was only a trust relation, it was not such a one as would prevent the running of the statute. Stewart v. McBurney, (Pa.) 1 Cent. 616; Wood Lim. s. 59; Newson v. Commissioners, (Ind.) 1 West. 475; Spidel v. Henrici, 30 U. S. L. 718; Wilmerding v. Russ, 33 Conn. 77; Cane v. Bloodgood, 7.Johns. Ch. 90; Richards v. Mackall, 31 U. S. L. 396.

One selectman cannot bind the town by contract. Scott v. Cabot, 44 Vt. 167; Livingston v. Albany, 44 Vt. 666.

The opinion of the court was delivered by

POWERS, J. The court below ordered a verdict for defendant upon the ground that the statute of limitations had run upon the plaintiff's claim. If there was any evidence in the case that tended to save the claim from the statute it should have gone to the jury.

The plaintiff's evidence came mainly from Mr. Robie and himself and although these witnesses differed as to some of the material facts, the court could not as matter of law adopt the version of either, but must submit the whole to the jury and they could adopt either version as they pleased. Mr. Robie's evidence tended to show that the plaintiff was paid his bounty at Brattleboro in a town order which was delivered to Mr. Marsh by plaintiff's directions and subsequently cancelled by Mr. Marsh on the ground that the plaintiff hal deserted the scrvice. But the plaintiff testified that he never had any town order and never appointed Mr. Marsh his attorney for any purpose except to draw his government wages. He says in substance that Mr. Marsh told him "you will have a lot of money coming to you, you will lose it perhaps, or get robbed of it and the town. is paying good interest and they are hiring money and would

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