no levidence as; to .the rental I .assess· tpe damages'attbe: 811m of $500, .and the value of the rentals at a nominal sum, to.wit, $1'per month. Judgment will be entered against all of the defendants for P0sof the premises, and against Potter for the damages,. as he pears to be the one who was instrumental in selling the. timber.
SRAMPEAU 'lI. CoNNECTICUT RIvER. LUMBER
( Circuit "Court, D. Vermont. March 18. 1889.)
i.WRITs-SERVICE OF PROCESS--PLEAS
A plea in abatement in anaetion commenced hi the state court agatnsta foreign .corporation sbowed that .the writ was notpJ'operly served as a writ of summons. but the. writ and return showed that, the writ issued and was served as a writ ofatta:chmellt, Hetd that, 3S the plea did not deny thatthe person with whom the copy' was left was defendant's· known agent or:t\ttor· ney" or was le,ft with)lilll at the place of attllchment, it was bad, such servIce bemg authorIzed by the state laws, (R.·L: Vt. § 881.) ,1'.",1 Such service is sufficient to hold the property, though not to support a per· sonal judgment, and a motion to dismiss should be denied.
At Law. On demurrer to plea in abatement and motion to dismiss. Action by William ShaJllpeau against the Connecticut River Lumber Company. . E. W. for plaintiff. H. a. Ide, for defendant. WHEELER, J. This cause was brougbt in tbe state'court, wbere tbe defendant pleaded in abatement, and moved to dismiss for defective service, and then removed it to this court, being a foreign corporation. The plea alleges that the writ was served by leaving an attested copy of the return thereon "with one Edward W. Lawler;" and that Lawler was not a..clerkor other officer, or a stockholder, of the defendant; and that there was no other service or acceptance or waiverofservice.The plaintiff has demurred to the plea, and hearing has been had on the plea and motion. . . The plea well shows that the writ was not served in any lawful Dianner as a writ of summons. But the writ and return thereon are referred to in the plea, and show that the writ iss.ned and was served asa writ of attachment. The defendant was not and conld not be an inhabitant ofthestate. Hall v. Railroad Co., 28Vt. 401; F'illi v. Railroad Co., 37 lfed. In such case the writ could be served by leaving a copy with the defendant's known agent or attorney, and for want thereof at the place where .the goods or chattels were attached. R. L. Vt. § 881. The plea does allege that Lawler was not such agent or attorney, nor that the copy left with him at the. place of attachment. When !lo cause is from 11 state court, to this CQur,t it is to proceed as. if
vol. 31. '
brought here by original process, and the pleadings are to have the same force and effect for every purpose as they would have had by the laws and practice of the state court, if the cause had remained there. Rev. St. U. S. § 639. By the laws of the state court n plea in abatement for defective service which does not negate every manner of lawful service is bad on demurrer. Smith v. Chase, 39 Vt. 89. This plea must therefore be adj udged insufficient here. The motion to dismiss is to be determined upon what appears on the face of the record. Bliss v. Smith, 42 Vt.198. The attachment was good to hold the property, although not sufficient to found a personal judgment upon. R. L. §§ 1404, 1405; Price v. Hickok, 39 Vt. 292; Pennoyer v. Neff, 95 U. S. 714. If the motion should be granted, and the proceedings wholly dismissed, that, right would be cut ofl'. The defendant has notice of the suit, sufficient to found such a judgment upon at least. The plaintiff insists that the defendant could not remove the .cause without becoming a party for all purposes, but that need not now be determined. The motion must be overruled, whether that is so or not. Demurrer sustained, and plea in abatement adjudged insufficient, and motion to dismiss overruled.
PREBLE fl. BATES
(Circuit (Jourt, D. Ma88acku8etta. March 1S,1889.)
NEW TRIAL-TIME OF FILING-ADDITIONAL GROUNDS.
When a motion for a new·trial is tiled within the two days after verdict, as required by a rule of court, and before its decision another motion is filed on the ground of evidence discovered after the expiratioll of the two days, the latter will. be constrned as an amelldment or addition to the former motion, and both grounds will be considered.
SAME-WAIVER .OF MOTION-TENDER OF BILL OF EXCEPTIONS.
Pending a motion for a new trial, if a party tender a bill of exceptions he will be required to elect whether he will waive his motion so far as it is based on questions of law that might be embodied in a hill. of exceptions. but the presenting· of a bill of exceptions does not itself constitute a waiver of the motion.
On motion to dismiss motions for new trial.
B. F. Buaf!l' and L. C. Southard, for plaintiff.
Samu,el Hoar, for defendant.
COLT, J. The defendants iIi this case filed a motion for II. new trial within two days after verdict against them under law rule 26. At 8 subsequent date they filed another motion for a new trial, asking that the verdict be ,set aside on the additional ground of newly-discovered evidence. The plaintiff now moves to dismiss these motions, on the ground that the first motion was waived by the filing of the subsequent motioQ, aod that the subsequent motion, is irregular, because not