[Ed. Note. For other cases, see Action, Cent. Dig. 88 264-272; Dec. Dig. § 34.*]

injured is not entitled to recover if his own

negligence contributed to the injury." Quimby v. Woodbury, 63 N. H. 370, 374. The rule that formal allegation of the plaintiff's freedom from fault is unnecessary has become so well understood in this state that in a recent

case the proposition was conceded by counsel and adopted by the court without question or

3. PLEADING (§ 63*)-DECLARATION-STATU- elaboration. Wheeler v. Railway, 70 N. H. TORY ACTIONS-PERSONAL INJURIES.

A declaration, which sets out that it is an action of tort for the bite of a dog, sufficiently identifies the action so as to show that it is brought under Laws 1891, c. 60, § 14, providing an action of tort for such cases, and not under Pub. St. 1901, c. 118, § 9, providing a similar right and without naming the form of action. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 10, 133; Dec. Dig. § 63.*]

4. DAMAGES (§ 152*) - PERSONAL INJURY DAMAGES-PLEADING.

Where an action for damages for being bitten by a dog is brought under a statute which allows double damages, such damages may be awarded, although the declaration did not declare for them.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 426-428; Dec. Dig. § 152.*]

Exceptions from Superior Court, Belknap County; Chamberlin, Judge.

Action by Dwight W. Smith against Agnes Hallahan. From a judgment for plaintiff, defendant excepts. Exceptions overruled.

*

all of which is to

The declaration is as follows: "In a plea of tort, for that the said defendant, at said Gilmanton, on or about the 11th day of July, 1908, was the owner or keeper of a certain dog, and he, the plaintiff, at said Gilmanton, on or about the said 11th of July, 1908, while not engaged in the commission of a trespass or other tort, was attacked by said dog and badly bitten, the damage of the plaintiff as he says in the sum of one thousand dollars." The defendant appeared generally, pleaded the general issue, and subsequently became default. Thereupon, by agreement, the case was sent to a commissioner who assessed the actual damages. Upon the coming in of the report the defendant moved in arrest of judgment. The motion was denied, judgment was ordered for double the damages found by the commissioner, and the defendant excepted. Shannon & Tilton, for plaintiff. William F. McNamara, Edward A. Lane, and Arthur S. Healey, for defendant.

PEASLEE, J. The defendant advances three grounds for her motion in arrest of judgment. The first claim is that the declaration is fatally defective in that it does not allege the plaintiff's freedom from contributory negligence. Such allegation is not needed. Smith v. Railroad, 35 N. H. 356; Corey v. Bath, 35 N. H. 530. There is nothing peculiar about the doctrine of contributory negligence as applied in cases under this statute. It is the ordinary rule "that the party

607, 615, 50 Atl. 103, 54 L. R. A. 955.

It is next urged that the declaration is so indefinite that it cannot be ascertained whether the plaintiff seeks to recover under section 9, c. 118, of the Public Statutes of 1901, or under section 14, c. 60, of the Laws of 1891. The last-mentioned statute provides for recovery in an "action of tort," and so the plaintiff has declared. While it is true that there was no such action at common

law, it is provided for by the Codes and stat-
It was competent for
utes of many states.
the Legislature to so name the action for this
particular wrong. Orne v. Roberts, 51 N.
H. 110. Having so named it, and the action
having been brought under that name, the
declaration would seem to inform a person of
ordinary intelligence that the plaintiff sought
to recover under this statute, and not under
another act into which this name for the
form of action has not been incorporated.

Lastly, it is argued that the double damages provided for by the act cannot be recovered because not in terms declared for. This part of the statute is, of course, merely the rule of damage in the particular case. It involves no question of fact, but relates solely to the ministerial act of applying the statute to the facts found. Jaquith v. Benoit, 70 N. H. 1, 45 Atl. 714. Having been apprised by the declaration in an action of tort that the plaintiff sought to recover under the statute providing for double damages, the defendant was sufficiently informed that the rule of damages laid down therein would be applied.

Exception overruled. All concurred.

DALEY V. KENNETT.
(Supreme Court of New Hampshire. Carroll.
Nov. 1, 1910.)
JURY (§ 13*)-RIGHT TO JURY TRIAL-CON-

VERSION.

Where plaintiff, a prior chattel mortgagee, demanded delivery of the mortgaged property from defendant holding under a subsequent lien and a bill of sale, and being refused brought trover, his right of action was legal, and hence it was error to deny defendant a jury trial on the ground that the questions to be tried were so involved that the jury could not clearly understand them.

[Ed. Note.-For other cases, see Jury, Dec. Dig. § 13.*]

Exceptions from Superior Court, Carroll County; Plummer, Judge.

Action by William R. Daley against A.

Crosby Kennett. Defendant having been de- I know that within five minutes from the opennied a jury trial, he brings exceptions. Sus-ing of the case by the leading counsel for tained. the plaintiff, the judge would say: 'If we Trover, for the conversion of a quantity of sit here for a fortnight we cannot try this sawmill machinery, etc. Trial by the court sort of a case, and therefore it is indispensaand verdict for the plaintiff. The plaintiff bly necessary for the sake of justice-not toholds two mortgages on the property, and save us from the trouble of trying the case, the defendant holds a vendor's lien, a third which we are perfectly willing to take-but mortgage (which does not mention the first for the sake of justice, that there should be and second), and a bill of sale from the mort- a reference to an arbitrator, who will take gagor. There was no question of the due the accounts between the parties.' My lords, execution and record of the various incum- in ninety-nine cases out of one hundred that brances, nor of the amount due upon the de-recommendation would at once be acceded mands secured thereby. Before bringing suit the plaintiff tendered the defendant the amount due upon the lien and demanded the property. The defendant refused to deliver it, claiming title under his mortgage and bill of sale. Subject to the defendant's exception, he was denied a jury trial.

Leslie P. Snow and William R. Daley, for plaintiff. Walter D. H. Hill, for defendant.

to. Sometimes there is a wrong-headed client who is fool enough to resist such a recommendation, and to whom, according to a well-known saying we have in Westminster Hall, it is necessary to use 'strong language'

the recommendation of a reference they recommended an act of parliament should be passed giving the judge power to force a reference, and such a bill was brought in, but it was opposed by high authority" and failed of enactment. Ib. In this state of the law, and with the distinction between law and equity strictly and technically observed, it is manifestly useless to search for precedents in the common-law reports. The power now invoked was unknown to the common law.

to induce him to listen to the recommendation of my lord, the judge." Taff Vale Ry. Co. v. Nixon, 1 H. L. C. 111. But if the obdurate litigant still persisted in his course, the judge could go no further. "I may remind your lordships that the inadequacy of PEASLEE, J. The trial of this case involv- a jury to try such a case was felt so stronged a question of what property was covered ly by the common-law commissioners apby the descriptions in the plaintiff's mortga-pointed some years ago, that to meet the case ges, and a large number of items of damage. of an obstinate party who stood out against It was taken from the jury and tried by the court, because the presiding justice found it was "so complicated, and involved so many details, that the jury could not clearly understand and comprehend it." To this procedure the defendant excepted. The finding of fact involved in the ruling is conclusive here. Low v. Society, 67 N. H. 488, 32 Atl. 762; Dole v. Pike, 64 N. H. 22, 3 Atl. 743. The question presented by the exception, therefore, is whether in a case like this the defendant can claim a jury trial as of right, even when the matters to be tried are so complicated and involved that they cannot be clearly understood by the jury. The logical answer to this isolated inquiry is not necessarily the legal one. The people having re-ient tribunal. Unless the parties voluntarily served to themselves the right of jury trial, except "in cases in which it has been heretofore otherwise used and practiced" (Bill of Rights, art. 20), the scope of the exception is shown "by common-law principles and by history." Wooster v. Plymouth, 62 N. H. 193,

203.

"But these courts [of law] possess no authority to stop the progress of such suits for the purpose of subjecting the matter in dispute to the investigation of a more conven

adopt an arrangement for that purpose, the case proceeds to trial with a certainty in many instances that it will not be tried. A reference is proposed by the judge and is recommended by the counsel; but the parties, having made expensive preparation for the trial, are unwilling to forego the right of obtaining an immediate decision, and, as the judge has no power to enforce compliance with his proposal, the cause is suffered to go on till it becomes at length manifest that no satisfactory verdict can be given by the jury, and a consent to arbitration is extorted rather than given." Second Report to His Majesty by the Commissioners Appointed to In

What was the practice in cases of this class in 1784? With some exceptions which do not bear upon the present controversy, the right to trial by jury in suits at law was absolute. The books will be searched in vain for a precedent for taking a common-law action from the jury upon the ground that the particular case was beyond their comprehension. And so the practice continued to be inquire into the Practice and Procedure of the England. The situation is thus described as late as 1847: "The facts of the case, as stated by my noble and learned friend on the Woolsack, very clearly show that it would be a mere mockery to bring such an action before a jury. What would be done if such

Superior Courts of Law (1830) p. 26.

In equity, however, there was no jury trial as of right (State v. Saunders, 66 N. H. 39, 25 Atl. 588, 18 L. R. A. 646), and in matters involving accounts the jury trial was avoided by proceeding on the chancery side of the

in cases of account which might be cogniza- | common law and in ordinary actions, the ble at law, courts of equity interfered upon the special ground of accident, mistake, or fraud. If so, the ground was very soon enlarged, and embraced mixed cases not governed by these matters. The courts soon arrived at the conclusion that the true principal upon which they should entertain suits for an account in matters cognizable at law was that either a court of law could not give any remedy at all, or not so complete a remedy as courts of equity. And the moment this principle was adopted in its just extent, the concurrent jurisdiction became almost universal, and reached almost instantaneously its present boundaries." Sto. Eq. Jur. § 452; Davis v. Dyer, 62 N. H. 231.

This jurisdiction was limited to causes involving some sort of an account, as that term is popularly understood. It could be invoked only in cases founded on contracts, or implied trusts, or when a remedy at law was lacking. It may be that it could with consistency have been extended generally to cases arising ex delicto, but this was not done. While, as Judge Story suggests, it is "difficult to trace out a distinct line where the legal remedy ends and the equitable jurisdiction begins" (1 Sto. Eq. Jur. § 460), it quite plainly appears that when there was an action for trover equity would not interfere unless there was some special ground of jurisdiction. Bac. Abr., Acompt. In 1745, a bill was brought against a former tenant for an accounting for timber cut from the freehold during the tenancy. Lord Chancellor Hardwicke said: "This is the most extraordinary bill that ever was brought in this court, and I hope never to see one of the like nature again. * Waste is a loss for which there is a proper remedy by action. In a court of law the party is not necessitated to bring an action of waste, but he may bring trover. These are the remedies, and therefore there is no ground of equity to come into this court.” Jesus College v. Bloom. Amb. 54. To the same effect are later English cases. Pulteney v. Warren, 6 Ves. Jr. 73, 89; Gent v. Harrison, 5 Jur. N. S. 1285; 1 Mad. Ch. Prac. 119.

**

* * *

right to a jury trial was absolute. In equity
there was jurisdiction in matters of accounts
if it appeared that the case could not be in-
telligently tried by jury. But there was no
such equitable jurisdiction in actions sound-
ing in tort, where the sole complaint was
that the defendant had converted chattels,
and damages alone were asked as a remedy.
Logical or illogical, this was the line of de-
marcation. This was the use and practice
which the people made the constitutional
measure of their rights. This measure is
not varied by modern methods of procedure,
wherein forms of action are treated as large-
ly immaterial. Its application is not abolish-
ed by the rule that the same suit may be at
once an action at law and a bill in equity.
Tasker v. Lord, 64 N. H. 279, 8 Atl. 823.
"Constitutional construction
is not
to be dealt with like unimportant forms of
procedure, or English rules of law that are
not adapted to the situation and circum-
stances of this country. On questions con-
cerning the foundations of society, where a
system of government has lasted more than
a century, the ancient landmarks cannot be
removed by judicial decisions." Unreported
opinion by Doe, C. J. "The formal distinc-
tions in the pleading and modes of procedure
are abolished; but the essential distinction
between law and equity is not changed.
The relief which the law affords must still
be administered through the intervention of
a jury, unless a jury be waived." Basey v.
Gallagher, 20 Wall. 670, 22 L. Ed. 452, 680;
State v. Saunders, 66 N. II. 39, 77, 25 Atl.
588, 18 L. R. A. 646. The fact that the pres-
ent suit is called an action in trover is not
determinative of the issue presented by the
exception. The nature of the case and of
the relief sought must be looked to for the
settlement of the constitutional question.
If this were in effect a suit for an ac-
counting, the authorities cited by the plaintiff
would be applicable and his claim well found-
ed. But it is not such a suit. The vendor's
lien held by the defendant is not of import-
ance in the litigation. The amount due upon
it is unquestioned, and the defendant refused
to accept it because he denied the plaintiff's
title to the property and claimed to hold the
same under conveyances other than the lien
memorandum. The case is the ordinary one
of the holder of a chattel mortgage whose
title is denied by one in possession under sub-
sequent conveyances. With this case in hand,
the plaintiff chose his remedy. If he might
have proceeded in chancery for an equitable
adjustment of conflicting claims he did not
do so, but elected to treat the conduct of the
defendant as a conversion and to bring suit

Historically, if not logically, there was ground for this distinction. When the cumbrous action of account came into use in courts of law, the mathematical features of the case went to an auditor, while the ordinary issues of fact were separated out and tried by jury. "The old mode of proceeding upon the writ of account shows it. The only judgment was that the party 'should account,' and then the account was taken by the auditor; the court never went into it." O'Connor v. Spaight, 1 Sch. & Lef. 305; Carlisle v. Wilson, 13 Ves. Jr. 275. As ac- in trover. Having sought to avail himself counts (in the technical sense) had never of this remedy, he cannot now complain of been tried by jury, there was no fundamental the consequences which follow. The law apobjection to the assumption of jurisdiction plicable to the case is the same as it would in equity. be if a single chattel owned by the plaintiff

is nothing in the nature of an accounting in- [ attempted to jump on the latter car and was volved in this controversy. The mere fact killed. Held, as a matter of law, that the masthat the chattels are numerous does not ter was not liable for his death for failing to inmake such a case. Untermyer v. Beinhauer, 105 N. Y. 521, 11 N. E. 847; Johnson v. Railroad, 139 N. Y. 449, 34 N. E. 925. "Mere inconvenience is not a reason for refusing a jury trial in cases where the right is guaranteed by the Constitution." Davis v. Dyer, 62 N. H. 231, 239.

seen sitting on a timber that extended across | brakes and acted a little green in throwing the flat car between two posts at a point switches, and questioned him further as to about two feet from the floor and two feet his experience in railroading; and that later, from the front end of the car. When about at the Cross Power Siding, he displayed ten feet from the switch he passed over the awkwardness in stepping upon the footboard crosspiece and stood with his arm around a of the engine. If from this and other evitimber that crossed the car two or three feet dence it could have been found that the deabove the one on which he had previously fendants would not be justified in relying sat, or with his arm around one of the posts upon Paquette's representation that he was to which the cross-timbers were attached. experienced in the line of work he had enAbout 300 feet below the switch on the sid-gaged to perform, and that he should have ing was a flat car. As Paquette passed the switch, Ross called out to him to get back into the middle of the car, and Paquette either replied that he would look out for himself, or simply looked around and grinned. When about fifteen feet from the stationary car, he released his hold from the cross-timber or stake and stood about two feet from the front end of the car, until it was within a foot or so of the stationary car, and then jumped

been instructed as to the proper way in which to couple and uncouple cars, set brakes, and throw switches, and where and how to board or depart from moving cars when called upon to do so in the discharge of his duties, and warned as to the hidden or obscure dangers of the employment, the evidence does not disclose that he met his death while doing or attempting to do any of these things, or while encountering any hidden or dence is that after having taken a position of obscure danger. On the contrary, the evisafety upon the car, and with nothing to do but remain there until it reached its destination, he went voluntarily, and for no apparent reason other than to satisfy his curi

to that car, fell between the cars, and was run over and killed. When the cars passed the switch, Seguin was standing at the brake staff on the box car applying the brake. The cars were then moving from six to ten miles an hour. The brake worked all right, but Seguin did not tighten it sufficiently; and the car Paquette was on, its speed hav-osity, to the front end of the car, being well ing been reduced to two or three miles an hour, bumped into the flat car and, its brake not being set, sent it along a distance of some eighteen feet. When the two flat cars came to rest, they were about three feet apart.

The plaintiff says that she should have been permitted to go to the jury on the question of the defendants' failure to warn and instruct Paquette, and of his exercise of care; that there was evidence from which it could have been found that he was inexperienced and ignorant of the dangers to be encountered in the defendants' service; that they were apprised, or ought to have been apprised, of his inexperience and need of instruction and warnings, at a time sufficiently early to have enabled them to give them to him; that they were negligent in failing to warn and instruct him; that his death was the result of their negligence; and that he was in the exercise of due care.

At the time Paquette met his death, he had been in the defendants' employment as a member of the switching crew about two hours. When he sought this employment, he represented that he had had experience in this line of work on a railroad in Canada and in the yard of the International Paper Company. The plaintiff seeks to avoid the effect of this portion of her evidence by other evidence in which it appeared that Paquette joined the switching crew at about 7 o'clock in the morning; that at 20 minutes after 7 they had ridden on the engine down to the Cascade Mill, where Ross joined them; that while there Ross and Streeter noticed that

aware that it was approaching the station-
ary car, and when within a foot of that car
attempted to jump upon it and was killed.
He was 26 years of age, and, so far as ap-
man of average intelligence; at
pears, a
least there is no evidence from which it
could be found that he was not, and that
the defendants knew or should have known
that he was not. And under the circum-
stances it could not be found that the defend-
ants should have anticipated that Paquette,
without being required to perform any act
of duty, would leave a place of safety and
heedlessly attempt to jump from the car he
was on to the stationary car, as they were
about to come together.

But

The plaintiff, however, contends that, after Paquette went to the front of the car, Ross saw him there and could have warned him to return to the middle of the car. this contention cannot be maintained, as the uncontroverted evidence is that, at the time Ross disconnected the engine from the flat car, Paquette was in the middle of the car; that it was after this, and when the engine had gone ahead down the track, that Ross first saw that he had changed his position to the front of the car; and that, when the car passed Ross at the switch, he warned him to return to the middle of the car. Whether the warning was heard and understood by Paquette can never be known; but that is of little importance in view of the fact that the evidence discloses that every reasonable endeavor was made to warn him after his danger was known.

The verdict was properly directed.