ported home in it his grain, and that this was the purpose for which he used it, and that he did not use it as a peddle cart. His eggs, butter, and milk were delivered to regular customers. His apples and potatoes were "usually sold before I [he] brought them in, and then delivered them." These facts distinguished this case very clearly from Smith v. Chase, supra. That was a regular peddler's cart, fitted up as a movable store. The jury found the vehicle to be an "express wagon," within the definition given, and we perceive no reason for disturbing the verdict.

Exceptions and motion overruled.

(88 Me. 254)

GRIFFIN v. MURDOCK. (Supreme Judicial Court of Maine. Jan. 10, 1896.)

ASSUMPSIT-PLEADING-MONEY COUNT AND OMNI

BUS COUNT.

A count was specially demurred to because it combined in one all the money counts, with one for goods sold and delivered, work and labor, and an account stated. Held, that it is in the form long in use, and usually denominated an "omnibus count." It has been sustained by practice and authority for a long time, and is good.

(Official.)

Exceptions from supreme judicial court, Oxford county.

Assumpsit by Thomas Griffin against David F. Murdock. There was a judgment overruling demurrers to the several counts of the declaration, and defendant excepts. Over

ruled.

John P. and John C. Swasey, for plaintiff. M. P. Frank and P. J. Larrabee, for defendant.

STROUT, J. The count specially demurred to in this case combines in one all the money counts, with one for goods sold and delivered, work and labor, and an account stated. It is in the form which has long been in use, and is commonly called an "omnibus count." It is indorsed by Mr. Chitty in his work on Pleading (volume 1, pp. 343, 349); and the form of the count given by him in volume 3, p. 89, is substantially the same as the one under consideration. It was approved in Webber v. Tivill, 2 Saund. 122, and was held good by this court in Cape Elizabeth v. Lombard, 70 Me. 400. It has been sustained by practice and authority for so long a time that it must now be considered settled and at rest.

Exceptions overruled.

(88 Me. 263)

WADSWORTH v. MARSHALL. (Supreme Judicial Court of Maine. Jan. 10, 1896.)

NEGLIGENCE-BLASTING IN QUARRY-NOTICE.

1. Under Rev. St. c. 17, §§ 23, 24, it is the duty of persons engaged in blasting lime or other rocks, before each explosion, to give sea

sonable notice thereof, for the protection of persons within the limits of danger. Failure to give such notice is negligence per se, and renders the party liable for injuries resulting therefrom, whether caused by flying débris or the frightening of horses by the noise of the explosion.

2. The established doctrine of contributory actions; and the defendant may show, in an negligence, as a defense, applies to this class of action on this statute, which is remedial, that the unsafe character of the horse driven by the plaintiff, or his negligence in other respects, contributed to the injury. If he does this, plaintiff cannot recover, notwithstanding the negligence of defendant. (Official.)

Exceptions from supreme judicial court, Knox county.

Action by Almeda J. Wadsworth against Fred P. Marshall. Judgment for plaintiff. Defendant excepts. Exceptions sustained.

This was an action, under Rev. St. c. 17, §§ 23, 24, to recover for personal injuries to the plaintiff, alleged to have been caused by an explosion from a blast fired by the defendant, without giving seasonable notice thereof, while engaged in blasting lime rock.

The plea was the general issue.

The testimony showed that, on the 19th day of June, 1894, the plaintiff was riding northwardly, in a wagon drawn by one horse, at a walk, along a public highway known as "Union Street," leading from Rockport village to Camden village, and that, at a point in said Union street, near its junction with Lime Rock street, the horse became frightened and unmanageable, and jumped suddenly and violently, whereby she was thrown from the wagon to the ground, and received thereby severe personal injuries.

The plaintiff claimed, and introduced testimony tending to prove, that the cause of the horse's fright was an explosion from a blast of lime rock fired by the defendant in the limestone quarry of the S. E. & H. L. Shepherd Company, and that the defendant gave no seasonable notice of such blast, as is required by section 23 of said chapter 17, or any notice whatever, to persons traveling in said Union street.

It was admitted that the defendant, at the time said accident occurred, was employed by said company in blasting and quarrying limestone in its limestone quarry, and that said company was the owner of said quarry.

The testimony showed that the quarry in which the blast is alleged to have been fired is adjacent to said Union street; that the quarry of Carleton, Norwood & Co. adjoins said quarry of the S. E. & H. L. Shepherd Company on the north, and is also adjacent to Isaid street; that the horse, at the time he took fright, was 465 feet distant from the point of the alleged blast; that the point of the alleged blast was 77 feet below the level of the surface of the street, and was 290 feet distant from the line of the street; that, at the time when the horse took fright, and the blast was alleged to have been fired, the plaintiff had reached a point at the junction of Lime Rock and Union streets and 247 feet

northerly from a point in the street directly opposite the place of the alleged blast.

The plaintiff did not claim to have been struck or injured by any fragment or other missile thrown by such blast, but claimed that her injuries were caused solely by the horse becoming frightened by the explosion. The defendant denied that any blast was fired by him, at or near the time when the accident occurred to the plaintiff, and introduced testimony upon that point.

The defendant's counsel requested the presiding justice to instruct the jury that, if the plaintiff's injuries were caused by the horse becoming frightened by the explosion from a blast fired by the defendant without having given seasonable notice thereof, while engaged in blasting limestone, this action is not maintainable.

The presiding justice, in order to give progress to the case, refused to so instruct the jury, and instructed the jury that, if the plaintiff's injuries were so caused, she was entitled to recover therefor in this action.

The defendant's counsel further requested the presiding justice to instruct the jury that if, at the time when such blast was fired, the plaintiff had passed the place of such blast, and was not approaching thereto, the action is not maintainable, which instruction, the presiding justice, for the same reason, refused to give.

The horse with which the plaintiff was riding belonged to her husband, and at the time of the explosion was being driven by her grandson, a young man 18 years of age.

The defendant offered testimony tending to prove that said horse was vicious, not prop: erly broken, and unsafe for the purpose for which it was then being used.

Such testimony, upon objection by plaintiff's counsel, was excluded by the presiding justice.

The verdict was for the plaintiff, and the defendant alleged exceptions.

Reuel Robinson and C. E. & A. S. Littlefield, for plaintiff. W. H. Fogler, for defendant.

STROUT, J. The exceptions in this case require a construction of chapter 17, § 23, of the Revised Statutes, which provides that: "Persons engaged in blasting lime rock or other rocks, shall before each explosion give seasonable notice thereof, so that all persons or teams approaching shall have time to retire to a safe distance from the place of said explosion; and no such explosion shall be made after sunset."

Section 24 provides a penalty against any one violating the provision, and makes such person "liable for all damages caused by any explosion."

Statutes are to receive the construction intended by the legislature. "To ascertain this, we may look to the object in view, to the remedy intended to be afforded, and to the mischief intended to be remedied." Winslow v. Kimball, 25 Me. 495. "The duty of the court,

being satisfied of the intention of the legislature, clearly expressed in a constitutional enactment, is to give effect to that intention, and not to defeat it by adhering too rigidly to the mere letter of the statute, or to technical rules of construction." Oates v. Bank, 100 U. S. 244. "And we should discard any construction that would lead to absurd consequences." Gray v. Commissioners, 83 Me. 435, 22 Atl. 376. "The meaning of the legislature may be extended beyond the precise words used in the law, from the reason or motive upon which the legislature proceeded, from the end in view or the purpose which was designed." U. S. v. Freeman, 3 How. 565. So, in Murray v. Baker, 3 Wheat. 541, the words "beyond seas," in a state statute of limitations, were held to mean "out of the state."

To apply these principles:

When the law

was enacted, it was well known that extensive quarrying of lime and other rocks, in close proximity to much traveled highways, was done, and that persons traveling on such highways were thereby greatly endangered, not only from flying rocks, but from the frightening of horses by the noise of the explosion, The intention of the legislature, in passing the act, was to insure safety from these dangers. Hence, notice of the "explosion" was required to be given to travelers in time for them to "retire to a safe distance." It is argued that the mischief intended to be remedied was that of flying rocks or other débris, and that the frightening of horses by the noise of the explosion is not covered by the statute. We cannot concur in this view. The safety of the traveler was intended to be secured. Many of the quarries are so far below the surface of the ground that there is little danger of flying rocks reaching the highway. The traveler's danger from missiles is much less than that. from the frightening of horses from the noise of the explosion. Both these dangers were present in the minds of the legislature when a remedy was proposed, and they evidently intended by this statute to guard against both. One of Webster's definitions of the word "explosion," is "a bursting with violence and loud noise, because of internal pressure." The remedy given by section 24 is for "all damages caused by any explosion." Whether the damage is caused by the noise of the explosion or by flying substances is immaterial. Whatever damage may be caused by the explosion, whether by noise and its effect on horses, or otherwise, is within the statute protection, and the basis of liability.

It is claimed that the statute protection applies only to those "approaching" the point of explosion, and does not include those who have passed the point nearest the blast, and are receding from it, though they may be in near proximity, and not "a safe distance from the place." Such construction leads to absurd results, and cannot be accepted as the meaning of the legislature. The word "approaching" in the statute, when considered with reference to the danger guarded against, and the remedy

provided, must be regarded as equivalent to "in proximity to the place of explosion," "within the limits of danger."

The requested instructions were rightfully refused.

Exceptions are taken to the exclusion of testimony, offered by the defendant, to prove that the horse with which plaintiff was riding at the time of the injury was vicious, not properly broken, and unsafe for the purpose for which it was then being used.

While the statute affixes a penalty to its violation, and is so far penal in character, the damages to be recovered by an injured party are only the actual damages suffered, and in this the provision is remedial, and to be construed as such.

The statute requires seasonable notice of an explosion. Failure to give it is negligence, which subjects the delinquent to the payment of damages caused by his negligence. But it does not follow that the injured party is thereby relieved of all obligation to exercise due care on his part. It is possible that the explosion, of which no notice was given, may have frightened plaintiff's horse, and the vicious character or untrained habit or negligent driving of the horse after the fright, which might have been slight, contributed to the injury, or might have been the proximate cause. The instruction proceeded upon the ground that, if no notice of the explosion, such as the statute required, was given, the defendant would be liable, regardless of the character of the horse or any other negligence of the plaintiff. In Hussey v. King, 83 Me. 571, 22 Atl. 476, which was an action under Rev. St. c. 30, § 1, to recover for injuries caused by the bite of a dog, it was held that the owner or keeper of a dog was, prima facie, absolutely liable for injury inflicted by the animal, and that the plaintiff need not allege or prove, in the first instance, either his own care or the defendant's negligence. But the court carefully reserved, as undecided, the question whether the acts of the injured person provocative of the dog could be successfully shown in defense.

"rule applies not only to actions given by the common law, but also to those given solely by statute, where the gist of the action is the default, omission, or carelessness of the defendant." Whether the same rule should apply to the class of actions to which the present suit belongs, need not be decided, as the defendant did not raise the question, but proceeded upon the ground that, when the plaintiff had shown the absence of sufficient notice of the explosion, and an injury resulting, she had made a prima facie case, and that the burden then rested upon the defense to show plaintiff's contributory negligence.

That the action in this case is based upon the omission and neglect of the defendant does not admit of doubt. If he had given the notice as required, and had not been guilty of any other fault, no liability would have arisen, even if plaintiff had suffered an injury. What would be a "safe distance" does not necessarily or probably mean "absolutely beyond all sound of the explosion." The plaintiff might have driven to a point so far removed as to properly be considered a safe distance, and yet an unbroken or vicious horse might have been frightened by the noise of a distant explosion, which would not have had that effect upon a horse suitable to drive. In such case, the fault of the horse would contribute to the injury, if, indeed, it might not be regarded as the proximate cause. It would be a harsh construction of the statute to hold that the negligence of the quarryman in not giving notice subjected him to liability for damages largely, if not wholly, resulting from the negligence of the traveler in riding with an unsuitable horse. An animal suitable to drive, might, notwithstanding a fright, be immediately controlled, and no injury occur, while an untamed or vicious horse might not be amenable to control, and hence an injury. Both law and sound reason concur in the proposition that a negligent party is liable for injuries caused by his own negligence to a person who is not guilty of negligence which contributes to the injury, and not otherwise. The statute, affording this remedy to an injured

common law; the only difference being that the failure to give notice of an explosion is made negligence per se, and is not excused by any amount of care in other respects.

This action, under the statute, is remedial. Defendant is liable for the consequences of his negligence, if no negligence of the plaintiff contributed to the injury. If it did, plaintiff cannot recover. The established doctrine of contributory negligence, as a defense, applies to this class of actions.

The evidence in the case is not reported, and we cannot know whether the offered proof as to the character of the horse, in connection with the other evidence in the case, would have shown contributory negligence of the plaintiff. But it was an element in that proposition, and should have been admitted. Exceptions sustained.

Vt.)

(68 Vt. 88)

TOWN SCHOOL DIST. OF BARRE v.
COOK.

(Supreme Court of Vermont. Washington. March 14, 1896.)

SCHOOL DISTRICT-ACTION AGAINST TREASURER of ABOLISHED DISTRICT-WHEN MAINTAINED.

No

Acts 1892, No. 20, abolished school districts in the town of Barre, except for settlement of their pecuniary affairs; constituted the town a single district, which was authorized to take charge of the schoolhouses, and the property belonging thereto, within the town; and required it to pay all outstanding debts. reference was made in the act to any funds in the treasury of abolished districts. Held, that the new district was entitled to the funds in the hands of the treasurer of an abolished district, and could maintain an action at law against him to recover the same.

Exceptions from Washington county court; Laforrest H. Thompson, Judge.

Action by the town school district of Barre against E. B. Cook to recover money in his hands as treasurer of school district No. 11 in Barre at the time it was abolished, and such town was constituted one school district, by Acts 1892, No. 20. There was a judgment for defendant, on the ground that the suit should have been brought against school district No. 11, and plaintiff excepts. Reversed, and judgment for plaintiff.

John W. Gordon, for plaintiff. S. C. Shurtleff, for defendant.

TAFT, J. By Act No. 20, Acts 1892, the common-school districts in the town of Barre were abolished, except for the settlement of their pecuniary affairs, and the town constituted a single district for school purposes. It was authorized to "take charge of the schoolhouses, and the property belonging thereto, within their respective limits," and required to pay all outstanding debts that had accrued for the purchase of land, erection of schoolhouses, and repairs thereon. The act required that all other indebtedness of any abolished district should be paid by such district, in the settlement of its pecuniary affairs. No reference was made in the act to any funds that might be at the time of its passage in the treasury of the abolished district. The abolished district No. 11 then had in its treasury $568.50, and no indebtedness. The defendant was its treasurer, and held the money. The plaintiff is the town district of Barre, and seeks to recover of him the moneys so held by him as treasurer of said district No. 11. The plaintiff can collect the amount in a suit against the district. Barre v. School Dist., 67 Vt. 108, 30 Atl. 807. Can it maintain an action against the defendant to recover the funds he held as treasurer of the abolished district No. 11? The latter held the funds in trust for school purposes, and for no other purpose. By force of Act No. 20 the plaintiff became its legal successor, and trustee in its place, with the right to take the trust funds in its hands, and expend them in the execuv.34A.no.2-3

33

tion of its trust,-the support of common schools. The effect of Act No. 20 was to vest the title of the funds in the plaintiff, and as the latter had the right of possession and the legal title, and the trust of the defendant as treasurer of the abolished district having ended, the property being in money,-the plaintiff can maintain an action at law to recover the funds. Lynde v. Davenport, 57 Vt. 597; State v. St. Johnsbury, 59 Vt. 332, 10 Atl. 531. The attempted division of the funds in the school-district treasury among the taxpayers was null, and no justification to the defendant for having paid them the money. The plaintiff is entitled to recover the sum in the defendant's hands, which is agreed to be $245.57, and, as the date of the demand is not shown, with interest since the bringing of the suit. Judgment reversed, and judgment for the plaintiff.

(68 Vt. 95)

PARSONS v. PARSONS. (Supreme Court of Vermont. Washington. Feb. 26, 1896.) MARRIAGE-ANNULMENT FOR FRAUD- EVIDENCE.

Under St. 1894, § 2661, providing that a marriage may be annulled where the consent of either party was obtained by fraud if (section 2669) the parties never voluntarily cohabited; section 2633, requiring the certificate to be issued by the clerk of the town where the groom resides, if he is a resident of the state; and section 2637, prohibiting the issuance of a certificate to a minor without consent of the parents,-evidence that the groom knew the parents of the bride, and that the bride was a minor; that, having been unable to procure a license in the town where he resided, he procured one, without consent of the parents, in another town, by representing that he resided there, and that the bride was of age; and that he told the bride that, the certificate having been obtained, she had to get married, and that her parents had no right to control her,-sustained a finding that the marriage was procured by fraud, and the parties never having voluntarily cohabited, the marriage was properly annulled. Start, J., dissenting.

Exceptions from Washington county court; Loveland Munson, Judge.

Petition by Della Parsons against George Parsons for annulment of marriage. There was a decree for petitioner, and defendant excepts. Affirmed.

W. A. Lord and F. L. Laird, for petitionee. Dillingham, Huse & Howland, for petitioner.

TAFT, J. This is a proceeding to annul a marriage contract, under section 2661, Vt. St. 1894, which provides that a marriage contract may be annulled when the consent of either party was obtained by fraud. The court below "found that the petitioner's consent was obtained by fraud, and decreed an annulment of the marriage." The testimony is before us, and the question is whether there was any testimony in the case tending to support the finding. If there was, the decree cannot be disturbed. Whether there was any testimony is a question subject to our revision. Its weight and sufficiency was for the court be

low, and cannot be revised by us. The parties never voluntarily cohabited, an essential requisite to a decree. Id. § 2669. The petitionee residing in Berlin, the marriage certificate should have been issued by the clerk of that town (Id. § 2633); but, failing in obtaining one of him, and also in Montpelier, the petitionee fraudulently obtained one in Barre, by falsely representing to the clerk in that town that he resided there, and that the petitioner was 18 years of age. The testimony disclosed by the record tends to show that, although the petitioner knew of the misrepresentation as to her age, she believed that the certificate was valid and “all right”, that the petitionee represented to the petitioner that, having obtained the certificate, she had got to go and enter into the marriage; that upon her stating to him that she did not know that she had got to go and get married, for the reason that the certificate had been obtained, he repeated the representation; that the petitionee further represented to her that her parents had no right to control her in the matter, or to tell her what to do. Such representation was false, for section 2637, reads: "A town clerk shall not issue a marriage certificate to a minor without the consent in writing of the parent or guardian of such minor, if there is one competent to act." The petitionee knew of the petitioner's parents, for he was an inmate of their house, and knew she was not 18 years of age. The triors might well find, from this testimony, that her consent was obtained by fraud; that she was made to, and did, believe that the marriage certificate was valid, that she was under compulsion to enter into the marriage, and that her parents had no right to control her in the matter; and that her apparent willingness to enter into the marriage, at the time of its solemnization, was the result of the gross fraud practiced upon her. The exception taken by the petitionee, which was "to the rendition of the judgment, on the ground that there was no evidence to support a finding of fraud," is not sustained. Decree annulling the marriage affirmed.

START, J., dissents.

(68 Vt. 77)

CLEMONS v. CLEMONS. (Supreme Court of Vermont. Bennington. Sept. 20, 1895.)

EVIDENCE-PROOF OF VALUE-MATERIALITYVERDICT-SET-OFF.

1. On the issue as to the value of an heir's undivided interest in land consisting of a tract portions of which had been set apart to the widow, for life, as dower and as homestead, testimony as to the value of the entire tract of land, and as to the value of the land other than that set apart to the widow, is admissible.

2. On the issue as to whether a creditor was pushing a debtor for payment, the fact that the creditor, on payment of the debt by a third person, reloaned him the money paid, and an additional sum, is inadmissible.

3. Where a plea of set-off is pleaded, defendant is not entitled, as a matter of right, to have the jury state in their verdict the respective amounts found for each party. The only sum essential to the verdict is the final amount due either party.

Exceptions from Bennington county court; Taft, Judge.

Action by Louise Clemons against Warren Clemons. There was a verdict and judgment for plaintiff, and defendant excepts. Affirmed.

Assumpsit. Pleas, the general issue, payment, statute of limitations, and offset. Trial by jury at the June term, 1894. Verdict and judgment for the plaintiff. The defendant excepts.

William D. Clemons, the father of the plaintiff and defendant, died in 1875, leaving a widow and these two children. His estate was settled in the probate court, and in 1879 the property was passed over to the widow and children. This property comprised the home farm, of 380 acres, with the personal property upon said farm. The widow was entitled to a homestead, which was set out of the dwelling house upon the farm, and dower, which was assigned to her in the farm, and comprised about 200 acres. The remainder of the farm, together with the reversion of the widow's dower, and the personal property, belonged to the plaintiff and defendant in common. February 8, 1891, the plaintiff sold and conveyed to the defendant her entire interest in said property, and this suit was brought for the purchase price. No question was made as to the fact of the sale. The plaintiff claimed that the defendant was to pay her what the property was reasonably worth. The defendant insisted that he was to pay $1,600; that he had paid the same by paying to one Hawley a note for $865, which was due from the plaintiff to Hawley, and a debt from the Battenkill Bank; and it was not disputed that the defendant had made these payments on account of the plaintiff. As bearing upon the value of the plaintiff's interest, persons qualified to express an opinion were allowed to state, under exception, the value of the entire premises, and also the value of that portion of the farm outside the homestead and widow's dower. The plaintiff testified that one reason why she made the sale was because Hawley was pressing her for payment upon his note. The defendant testified that Hawley was not pressing the plaintiff for payment, or, at least, that he did not know of it. As tending to support his claim in this respect, the defendant offered to show that, when he took up the plaintiff's note to Hawley, Hawley let him have $165, and took the defendant's note for $1,000. This evidence was excluded, and the defendant excepted. The defendant claimed to recover under his plea in offset for various items, some of which were conceded. The court properly instructed the jury as to the defendant's right of recovery under this plea. The