Volume 76 — Vermont Reports

Appeal erom Probate Court. Heard on a commissioner’s report and exceptions thereto, at the December Term, 1902, Orange County, Tyler, J., presiding. Pro forma judgment for the defendant estate for. the sum named in the report. The plaintiff estate excepted. The commissioner having found that the administrator’s services were worth $150.00 per year, this allowance should be credited at the end of each year.

<p>AppEaes in Chancery. The first named case was heard on pleadings and an agreed statement of facts, at the September Term, 1901, Rutland County, StartJ Chancellor. The last named case was heard on pleadings, a special master’s report and exceptions thereto, at the September Term, 1902, Rutland County, Stafford, Chancellor. Pro forma decree for the defendants and appeal by the orators in each case.</p> <p>So far as "the provisions in the will affect the land standing in the name of Gershom Cheney, the attainment of the object for which the power was created has become impossible, and the power fails. Sharpsteen v. Tillon, 3 Cow. 651; Hetzel v. Barber, 69 N. Y. x; Jackson v. Ellsworth, 6 Johns. 73.</p> <p>This power is purely personal, and dies with him for whose benefit it was created and in whom it was reposed.</p> <p>The power to sell lots to pay the mortgage on the land of the testatrix was likewise purely personal. The will, taken as a whole, indicates that it was the intention to leave the matter to1 his discretion.</p> <p>The right to sell “building lots” cannot be construed to include the right tO' sell the lot on which the tenement house stood.</p> <p>The conditions of the will are positive and imperative the mortgages are to be paid by sale of building lots. There is no discretion given to the husband, and the'whole .scheme of the will is defeated, if that is not done.</p> <p>The power of sale is coupled with a trust, which cannot be defeated. 1 Perry on Trusts, s. 248;. Greenough v. Wells, 10 Cush. 571; Montpelier v. East'Montpelier, 29 Vt. 22; Perre v. American Board, 53 Vt. 162; Notes to 53 Am. St. Rep. 69.</p> <p>The power to sell building lots on Jackson Avenue covered the whole tract of seventeen acres. The will makes no distinction between the lots, and the fact that No. 2 was improved makes no difference.</p>

<p>General Assumpsit. Plea, the general issue. Heard on the report of a referee at the December Term, 1902, Orange County, Tyler, J., presiding. Judgment for the defendant. The plaintiff excepted.</p> <p>The alteration by the plaintiff’s agent had no effect on the contract. Bigelow v. Stüphens, 35 Vt. 521.</p> <p>Even if the defendant had a right to rescind, a shipment to Providence cannot avail him. Norton v. Gleason> 61 Vt. 480; Ricker v. Adams, 59 Vt. 154.</p> <p>The writing required by the Statute of Frauds must state the terms of the contract. This contract fails in this particular. Brown on Frauds, 468; Dana & Henry v. Hancock, 30 Vt. 616.</p> <p>On receipt of the goods not billed as agreed, the defendant had a right to refuse to receive them. He returned them to the advertised factory of this manufacturing company.</p>

Trespass under V. S. 5020. Plea, the general issue. Trial by Court at the March Term, 1902, Windham County, Rowell, C. J., presiding. Judgment for the plaintiff. The defendant excepted. The grant of February 13, 1770, shows title in James Rogers and his associates. The deed from his associates to him was signed, sealed and witnessed, and it must be presumed to- be in accordance with the legal requirements then existing.

<p>Railroads — Mandate—Construction—No'tice—Sufficiency— V. S. 3803 — Net Mornings.</p> <p>The right to maintain this bill to reach the net earnings is determined by the mandate heretofore sent down in this cause.</p> <p>That mandate limits this right to such orators as had no notice of the pendency of certain chancery proceedings; and this means notice according to the practice and usage of the court of chancery in such cases.</p> <p>A notice published by the solicitors for the orators in those proceedings of their own motion, and without an order of court or the master,, has no legal efficacy.</p> <p>A claim for stationery and printing is not within the provisions of Y. S. 3803.</p> <p>In computing net earnings, only such expenditures as are actually made can he deducted from the gross earnings.</p> <p>Amounts paid for interest and extraordinary repairs on locomotives' should he deducted from the gross earnings in such computation.</p> <p>The expenses of litigation which arose in matters anterior to the appointment of receivers and with which they had nothing to do as such, should not be dedudted from gross earnings to determine-the net earnings of the receivership.</p>

<p>Trespass Bor Assault. The pleadings are stated in the opinion. Heard on special demurrer to the replication to the fourth plea, at the June Term’, 1902, Windsor County, Haselton, J., presiding. Demurrer overruled and replication adjudged sufficient. The defendant excepted.</p> <p>The replication is double since it denies that the note Was received in satisfaction, and then sets up new matter— that the note was accepted in satisfaction only on a condition which had not been fulfilled. Durkee v. Goodnough, 65 Vt. 257; Downer v. Powell, 26 Vt. 397; Ch. PI. (13th Am. Nd.) 649, 594, 611; Russell v. Rogers, 15 Wend. 351; Luce v. Hoisington, 55 Vt. 341; Stephen, PI. § 259.</p> <p>The replication is not double. It only alleges such facts as are necessary to avoid the effect of the plea. Vaughn v. Bvarts, 40 Vt. 530; Matt v. Hagen, 27 Vt. 208.</p>

Appeal in Chancery. Heard on pleadings, master’s report, and exceptions thereto, at the September Term, 1902, Chittenden County, Tyler, Chancellor. Decree for the defendants. The orators appealed. The assignee, being the attorney of the attaching creditors, was interested in the assignment and it is not valid against creditors. V. S. 2171. The assignment created a preference in favor of the attaching creditors, and is therefore void under the same section of the statute.

<p>Waster Right — Grant—Construction.</p> <p>In the grant or reservation of a water right, a reference to an existing use will be considered as a measure of quantity merely,, unless the contrary intention appears from the language used or the surrounding circumstances.</p> <p>A grant of “sufficient water to carry” certain machines named is of the right to draw a certain quantity of water, without regard to the use or place.</p> <p>When a water right is “not to be used for any purpose to the injury of any machinery now in use” by a certain owner, it is subject to the water right then used to operate the machinery referred to.</p>

<p>Petition tor Mandamus. Heard on petition, answer, and evidence filed, at the May Term, 1903.</p> <p>The powers in the charter of the Consolidated Lighting Company, so far as they were purchased by the respondent, merged into that company. Beach on Corp. § 360; Town v. Whitworth, 117U. S. 139.</p> <p>The franchise must be construed most favorably to the public. Wabash R. R. Co. v. Depimer, 52 Oh. St. 262; Railway Co. v. Railway Co., 127 Ind. 369; Railway Co. y. James, 34 Fed. 579; R. R. Co. v. Chicago, 121 111. 176; Stein v. Water Co., 141 U. S. 67.</p>

<p>Case Presented — Sufficiency—V erdict — Conclusiveness—Motion to' Recommit — Decree against Administrator.</p> <p>It is for tbe appellant in chancery to furnish this Court a case that affords a foundation for the legal question sought to be raised.</p> <p>A special verdict is conclusive in a subsequent chancery suit between the same parties.</p> <p>An orator is bound to show the amount of a payment properly chargeable to the defendant.</p> <p>A motion to recommit a master’s report is addressed to the discretion of the chancellor.</p> <p>One who brings a bill as administrator cannot complain because a decree is made against him in his representative capacity.</p>

<p>Common Counts — Special Promise.</p> <p>One who buys property subject to a chattel mortgage, assuming the debt ¡as a part of the purchase price, and afterwards expressly promises the mortgagee to pay it, is not liable to an action of general assumpsit by the mortgagee.</p>

<p>Corporations — By-laws—Modification—Directors—-Number— V. 5*,. 3717 — Corporate Action — Course of Business— Signature of Note — Informality—Husband and Wife— Action by Wife — V. S. 2644 — Transfer of Note — Mvidence — Relevancy.</p> <p>Though the by-laws of a corporation provide it shall have five directors, yet, if with the consent of all the stockholders, a board of' only three directors conduct the business of the corporation for a long series of years, such by-laws are changed accordingly, the-charter being silent as to the number of directors, and V. S. 3717 requiring only three.</p> <p>Two of its board of three directors can bind a corporation in the transaction of its ordinary business, without the consent, or even knowledge, of the third.</p> <p>'The borrowing money to use in repairing its property and giving the corporation’s note therefor, is an act in the transaction of its ordinary business.</p> <p>That one of the three directors acts in the double capacity of agent for both borrower and lender, does not invalidate such note when the corporation suffers no detriment thereby.</p> <p>A note to which a director signs the corporate name only is valid, the corporation having only three stockholders, who are also its only directors, and having no other officers, and two of said directors being present when the note is signed and taking part in the transaction.</p> <p>When a husband transferred to his wife, without indorsement, a note which he then owned, payable to a third person, or bearer, as collateral security for money borrowed from her by him, which he still owes and which is more than the amount of the note, she is the lawful owner of the note and may maintain an action thereon against the maker.</p> <p>A husband who, without indorsement, transfers to his wife, as collateral security for a debt which he owes her, a note owned by him and payable to a third person, or hearer, does not become bound to her in any way thereby.</p> <p>An offer in the alternative must be taken in the view less favorable to the offerer. -</p> <p>Evidence that while one held a note as agent of the payees, he misappropriated money which during that time he had received as the agent of the maker, does not tend to show payment of the note.</p>

Case for killing plaintiffs horse which escaped from private land onto defendant’s track. Heard on an agreed statement, at the June Term, 1903, Addison County, Watson, J., presiding. Judgment for the defendant. The plaintiff excepted. The facts sufficiently appear in the opinion. V. S. 3877, as construed by Quimby & Rogrn v. B. & M. R. Co., 71 Vt. 301, fixes the liability of the defendant. See also Hardwood1s AdrnPx v. R. Co., 67 Vt. 664.

<p>Inheritance Tax — Nc&tmr e of- — Subject of — Decedent’s Credits —Situs of — No. 464 Acts 1896. .</p> <p>Debts due a deceased person from nonresidents of Vermont should not be included in fixing the amount of estate subject to the collateral inheritance tax imposed by No. 46, Acts 1896.</p> <p>The collateral inheritance tax imposed by No. 46, Acts 1896, is a tax upon the right to succeed to estate left vacant by death.</p> <p>Debts due resident decedents from nonresident debtors have their situs in the place where the debtor resides, pass by the law of that place, and are not subject to our law.</p>

Special Assumpsit upon a written contract. Plea, the general issue, with notice of special matter. Said notice has not been furnished the reporter. Trial by jury at the M'arch Term-, 1903, Chittenden County, Start, J., presiding. General and special verdicts for plaintiff. Defendants’' motion to set aside verdicts overruled. Judgment pro forma on verdicts. The defendant excepted.

<p>Assumpsit to recover for the support of an alleged pauper. Heard on an agreed statement at the March Term, 1903, Chittenden County, Start, J., presiding. Judgment-pro forma for the plaintiff. The defendant excepted. The opinion states the facts.</p> <p>The alleged pauper had gained a residence in Underhill. This case differs from Mount Holly v. Peru, 72 Yt. 68, in this, that here the wife left the husband with the declared intention not to return, and with the agreement with him that she should never call upon him for support.</p> <p>The notice is defective in not stating the condition of the alleged pauper.</p> <p>Under our pauper law a wife can, under no circumstance, gain a residence different from that of her husband. Mount Holly v. Peru, 72 Vt. 68, Jacobs’ Uaw of Domicile, §§ 209, 215, 216; Marshfield v. Tunbridge, 62 Vt. 455.</p> <p>The notice is sufficient. Mount Holly v. Peru, supra.</p>

Assumpsit by an indorsee of a promissory note against the makers. Plea, the general issue with notice. Said notice has not been furnished the reporter. Trial by jury at the June Term, 1903, Orange County, Munson, J., presiding. Verdict ordered for the plaintiff for the amount of the note, and judgment thereon.' The defendants excepted. The case was disposed of on the defendants’ evidence and offers, the offers being treated as proved for the purposes of the trial.

Trespass por Assaurt and Battery. Pleas, the general issue, and son assault demesne. Trial by jury at the December Term, 1902, Caledonia County, Watson, J., presiding. Plaintiff’s motion' to direct a verdict overruled. Verdict and judgment for the defendant. The plaintiff excepted. This is all the reporter knows about the case except what appears in the opinion.

Special Assumpsit against the defendant as surviving partner of Ambro Hildreth, deceased, upon a promissory note signed with the firm name of H. C. Gleason & Co. Heard on general demurrer to the defendant’s second plea, at the March Term, 1902, Washington County, Start, J., presiding. 'Demurrer sustained pro forma, and plea adjudged insufficient. The defendant excepted.

<p>Compuaint for furnishing liquor without first procuring a license, in violation of No. 90, Acts 1902. Plea, not guilty. Trial by court in the City Court of the city of Montpelier, Woodward, Judge. Judgment, guilty of one offense, and sentence thereon. The respondent excepted.</p> <p>The trial court found that the respondent had not at the time of the alleged offense any license for the sale of intoxicating liquor; that upon the occasion named in the complaint the respondent gave away a drink of reduced alcohol; that there was no evidence that the respondent had violated the law in any other respect.</p>

<p>Debt on the statutory liability of a stockholder of a national bank. Heard on a general demurrer to the declaration, at the December Te'rm, 1901, Addison County, Watson, presiding. Demurrer sustained, and declaration adjudged insufficient. The plaintiff excepted.</p> <p>The declaration alleged, among other things, the organization of the Farmers’ National Bank of Vergennes; the defendant’s ownership of stock therein; the insolvency of said bank; the appointment of the plaintiff as its receiver by the Comptroller of the Currency of the United States under the provisions of §5234 of the Revised Daws of the United States; that in order to pay the obligations of said bank it was necessary to enforce the individual liability of the stockholders thereof as prescribed by the said Revised Statutes, to1 the extent of one hundred dollars upon each and every share of the capital stock of said bank held or owned by them, at the time of its failure, that said Comptroller had made an assessment and requisition upon said stockholders for such amount; that by virtue of his appointment as such receiver it was the duty of the plaintiff to take all necessary proceedings, by suit or otherwise, to enforce said' liability; that the capital stock of said bank is $60,000, and that the defendant owns one thousand dollars of said stock, and did own it at the time of the said failure of said bank; that she refused to pay said assessment, though requested to do so.</p> <p>The receiver of a national bank must be a party all suits relating to the choses in action of the bank, because the same belong to him. Scott v. Armstrong, 146 U. S. 499; National Bank Act & Its Meaning (by Bolles) § 428; Gluck & Becker on Receivers, 239.</p> <p>The receiver may sue for demands due the bank, either in his own name as receiver, or in the name of the bank. Bank v. Kennedy, 17 Wall. 19; Kennedy v. Gibson, 8 Wall. 198; Stanton v. Wilkeson, 8 Bened. 357; Bank of Bethel v. Fahquioque Bank, 14 Wall. 383; Case v. Bovine, 22 La. An. 321; High on Receivers § 360. He is expressly empowered by U. S. Statutes to bring a suit in his own name. U. S. Statutes § 5234; Beach on Receivers, § 484; Stanton v. Wilkeson, 8 Bened. 357.</p> <p>The contention is that there is no such title in the receiver that he can mantain an action in his own name. Not one case can be found that even hints that, a receiver of a national bank can not maintain a suit in his own name. It has been the custom in Vermont, as well as elsewhere in common law states, to bring suit in the federal* courts in the name of receivers of insolvent national banks. These suits have been brought for the collection of notes as w:ell as for stock assessments. There is no statute which authorizes bringing suits in the name of the receiver except for stock assessments, therefore all other suits must have stood on common law grounds. If the title is not in tlie receiver lie conld no more sue in liis own name for the collection of a note in the federal courts than in the state courts.</p> <p>Title L,XII, of the Revised Statutes of the United States, constitutes statute law under which the national banks of this country are organized, perform their functions, and when insolvent, are wound up. When a national bank is insolvent the Comptroller takes charge. He appoints a receiver. Under his direction the receiver does all that the receiver is authorized to do, and must make his report to- the Comptroller. The powers of a receiver of a national bank are much more limited than those of an ordinary receiver. His duties are confined to' converting the property into cash, and the collection of the assets and placing them in the United States Treasury.</p> <p>It is well settled that in the case of a receiver appointed by a court of equity, the possession is the possession of the court. In Re Higgins, 17 Fed. Rep. 443; Bruce v. R. Co., 29-Fed: Rep. 345; Hewitt v. Adams, 50 Me. 280; Bilis v. R. Co., 107 Mass. 28; Railroad v. Railroad, 47 Vt. 789. The appointment of a receiver does not change the title to the property. Bank v. Bank, 136 U. S. 236.</p> <p>The receiver of a national bank has not title to the assets, but holds them in trust for creditors under the direction of the Comptroller. Lease' v. Barschal, 106 Fed. Rep. 763; Scott v. Armstrong, 146 U. S. 507; Booth v. Clark, 17 How. 527-</p> <p>The settlement of the affairs of an insolvent bank is one proceeding from beginning to end, and as was said by W‘‘heeler’} J., In Re Slack, 3 Fed. Rep-. 525, in1 reference to the bankruptcy act, the assets are in the custody of the law, and the bankrupt is seized in his own right, until the property has, gone out of the estate by sale by the trustee.</p> <p>It is a fundamental rule of the common law that an action at law can only be maintained on a legal title. Lansing v„ M.amton, 14 Fed. Cas. No. 8077; Hedd v. Warrm, 22 Vt. 413; Kerr on Receivers, 206, note 1.</p> <p>Congress has no power over the remedy in the state courts. Congress can give a right of action, but when suit is brought in a state court, the state law governs as to the remedy.</p>

Apprar in ChancRry. Heard on demurrer to' tKe bill «of complaint at the March Term, 1903, Washington Co'unty, Stafford, Chancellor, presiding. Decree, pro forma, overruling the demurrer, and adjudging the bill sufficient. The defendant appealed. The opinion states the facts. To cause the marriage to happen was the thing that the defendant was to undertake. A mortgagor always undertakes to perform the condition of the mortgage.

General Assumpsit to- recover for certain copper wire. Pleas, the general issue, and declaration in offset to- recover eight hundred dollars which defendant claimed was paid plaintiff without consideration and without authority. The general issue was pleaded to the declaration in offset. Trial by jury at the March Term, 1900, Washington County, Tyler, Judge, presiding. At the close of all the evidence the plaintiff moved the court to direct a verdict for the plaintiff.

Debt on the statutory liability of a stockholder in a foreign bank. Heard on a general demurrer to the declaration, ‘-at the June Term, 1900, Caledonia County, Taft, J., presiding. Demurrer sustained, pro forma, and declaration adjudged insufficient. The plaintiff excepted.

Assumpsit on a fire insurance policy. Plea, the general issue, with notice of the surrender and cancellation of the policy. Trial by jury at the September Term, 1902, Rutland County, Stafford, J., presiding. Defendant’s motion for a verdict overruled, to which the defendant excepted. Verdict and judgment for the plaintiff. The defendant excepted.

Assumpsit for the collection of taxes, commenced by-trustee process under V. S. 506. Plea, the general issue. Trial by jury at the March Term, 1901, Orleans County, Tyler, J., presiding. At the close of all the evidence, on motion of the defendant, a verdict was ordered, pro forma, for the defendant to recover its costs. Judgment on verdict. The plaintiff excepted.

Case Eor Deceit in the sale of land. Plea, the general ■issue. Trial by court in the city court of the city of Montpelier, Laird, Acting Judge. Judgment for the defendants to recover their costs. Held: as matter of law, that by the terms of ■said deed the plaintiffs assumed and agreed to- ]Say the mortgage which said Parker held upon the real estate, and rendered judgment for the defendants to recover their costs.

Assumpsit upon a promissory note. Héard on an agreed statement, at the April Term-, 1903, Windham County, Mun-son, J., presiding. Judgment for the plaintiff. The defendant excepted. The note in question is payable to “Rosa B. Richardson,, or order.” The opinion states the other facts. V. S. 2644, does not give the wife the right to sue her husband. This is really the case of a wife suing her husband.. A note from husband to^ wife is void.

Appeal in Chancery, Franklin County. Heard at Chambers, on demurrer to the bill, Rowell, Chancellor. Demurrer sustained. The oiratrix appealed.

Appeal in Chancery. Heard on the bill, answer, master’s report and exceptions thereto, at the December Term, 1903, Orange County, Munson, Chancellor. Decree dismissing the bill with costs. The orator appealed. The opinion states the facts. In the absence of fraud, accident, or mistake, parol evidence was not admissible to show that neither option was to take effect unless both were accepted.

<p>New Trial — Party’s Statements in Presence of Jury — His Intent — Presumption.</p> <p>The verdict of a jury will be set aside and a new trial granted, when during a recess, after the opening argument, in the trial of a suit for personal injuries, the plaintiff made statements, in the presence and hearing of some of the jurors who were trying the case, which would naturally prejudice the jury against the defendant and induce a verdict for the plaintiff, although it does not appear that such statements did have that effect.</p> <p>When statements are made by a party to a suit or trial, in the presence and hearing of some of the jurors who are trying the Case, which would naturally prejudice the jury iri his favor, he will be presumed to have intended such statements to have that effect.</p>

Petition eor Divorce. Heard at the June Term, 1903, Eamoille County, Haselton, J., presiding. Divorce and permanent alimony granted. The petitionee excepted. The opinion states the facts. This contract does not bar alimony. Logan v. Logan, 2 33. Mon. 149; 2 Bishop on Marr. & Div. § 369, n; Stearns v. Stearns, 66 Vt. 187. If this agreement was made to bar alimony it is against public policy. 1 Bishop on Marr. & Div. § 635; note to Clark v. Posdick, 6 L. R. A. 132.

Complaint for selling, and keeping for sale, intoxicating liquor, without a license. Heard on general demurrer to the complaint, at the June Term, 1903, Caledonia County, Stafford, J., presiding. Demurrer overruled, and complaint adjudged sufficient. The respondent excepted. The complaint contains twenty-four counts. Twenty-three of the counts are the same, except the date of the offense charged.

Complaint for the violation, of No. 123, Acts 1898, by-delivering to- the purchaser certain stamps, or coupons, in consideration of the sale of goods. Plea, not guilty, and trial by Court upon an agreed statement, in the City Court for the city of Burlington, Hawkins, Judge. Judgment, guilty.

Action on the case, under V. S. 2359, to- recover the -penalty therein provided. Heard on a replication traversing defendant’s plea in abatement, and tendering an issue to be tried by the record, at the June Term, 1903, Windsor County, Tyler, J., presiding. Judgment that the writ abate. The plaintiff excepted. The opinion states the case.

Appeal erom a Decree oe the Probate Court establishing an instrument as the will of Marietta G. Mather. Ida E. Cook, proponent. Mary A. Wallace, contestant. Trial by Court, Addison County, June Term, 1903, Watson, J., presiding. Judgment for the proponent. The contestant excepted.

Appear in Chancery. Heard on demurrer to the bill at the March Term, 1902, Washington County, Stafford, Chancellor. Decree sustaining the demurrer, and dismissing the bill. The oratrix appealed. The opinion fully states the case. Equity will restrain proceedings at law, even after judgment, whenever, through fraud, mistake, accident, or want of discovery, one party in a suit obtains an unfair advantage over another.

Appear in Chancery. Heard on demurrer to' supplemental bill at the March Term, 1903, Washington County, Stafford, Chancellor. Decree, pro forma, sustaining the demurrer, and dismissing the bill. The orator appealed. All the facts in this case are fully stated in the opinion of the Court in Deavitt v. Ring, Admr., et ail., 74 Yt. 431, supplemented by the statement in the opinion in this case.

Case ror an assault upon the plaintive’s wire. Plea, the general issue, with notice of special matter in justification. Trial by jury at the March Term, 1903, Washington County, Stafford, J., presiding. Verdict and judgment for- plaintiff. The defendants excepted. It appeared that some time in the fall of 1896 defendant ■Collins, in company with Lovell, came to- the plaintiff’s home.

Wheelock. Ella A. Burgess, proponent. Eoie Smith and. Mabel Eifinaman, contestants. Trial by jury at the December Term, 1902, Bennington County, Muns-on, J., presiding. Verdict and judgment for the-proponent. The contestants appealed. It appeared that none of the attesting witnesses saw the-testator sign the instrument in question; but that-they witnessed what purported to be his signature in his presence and. in the presence of each other.

Appear in Chancery, Washington County. Heard at Chambers on bill, answer, master’s report, and exceptions thereto1. Start, Chancellor. Decree, pro forma for the orators. The defendants appealed.

Writ oe Error to review a judgment rendered for the defendants in error at the March Term, 1903, Washington County, Staff or d¿ J., presiding. The assignments of error are: (1) That the court should -not have continued the original suit for assessment of danv ages, since said suit w'as for a sum certain, the action being ■debt on judgment.

Assumpsit for wood sold and delivered. Pleas, the general issue, and tender before' suit. Trial by jury at the October Term, 1903, Essex County, Munson, J., presiding. On motion, the court directed a verdict for the plaintiffs. Judgment on verdict. The defendants excepted. The opinion states the facts. The school directora are the statutory agents of the school district and not subject to the control of the district.

Petition For Divorce, with prayer for alimony. Bill granted and alimony decreed at the June Term, 1903, Caledonia County, Stafford, J., presiding. The petitionee excepted. The court had no jurisdiction toi decree petitionee’s pension to the petitioner because it was not yet owned by him, but was to be acquired subsequently. Bishop', Mar. and Div., Vol. 2, §§ 857-887; Peighley v. Peighley, 61 Am.

Case for personal injuries. Plea, the general issue. Trial by jury at the September Term1, 1902, Orleans County, Haselton, J., presiding. Verdict and judgment for plaintiff. The defendant excepted. This case has been once before in the Supreme Court. See 74 Vt. 232. The plaintiff was unable to tell what car in the train he •was attempting to mount when he was struck by the switch. The opinion states the other facts.

Assumpsit on a promissory note. Heard on what amounts to a demurrer to a plea in abatement, at the September Term, 1903, Chittenden County, Tyler, J., presiding. Judgment that the court has jurisdiction of the firm, and plea dismissed. The defendant excepted. The opinion states the facts. Service upon a firm must be either in personam or in rem. There has been neither in this case. Permoyer v. Neff, 95 U. S. 714; Nat. Bank v. Peabody, 55 Vt. 496,; St. John v. Holmes, 32 Am.

General Assumpsit to recover the value of logs sold •and delivered. Pleas, the general issue, payment, and declaration in offset. Trial by court at the December Term, 1903, Lamoille County, Hasélton, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the Tacts. Courts construe contracts, not make them. 19 Vt. 202; 44 Vt. 395.

Appear in Chancery. Heard on demurrer to the bill at the December Term, 1902, Bennington County, Munson, Chancellor. Demurrer sustained, and bill adjudged insufficient. The orator appealed. The op-inion states the case. Wherever a fiduciary relation exists, the right to an action in equity is well settled. Barnes v. Dow, 59 Vt. 531; Hale v. Hale, 4 Humph. 183; Dyckmcm v. Valiente, 42 N. Y. 549; Suydam v. Bastedo, 40 N. J. Eq. 433; Tateum v. Ross, 150 Mass. 440.

TrovSr to recover the value of horses. Plea, not guilty. Trial by jury at the June Term, 1903, Orange County, Mtmson, J., presiding. Verdict ordered for the plaintiff. Judgment on verdict. The defendant excepted.

Petition for Mandamus brought to the Supreme Court for. Washington County, and heard on demurrer to the petition at the May Term, 1903.

General and Special Assumpsit. Pleas, (i) the general issue, (2) ultra vires:. Replication to second plea, de injuria. Heard on demurrer to replication to second plea, at the December Term, 1902, Caledonia County, Watson, presiding. Judgment, that the demurrer be sustained, and the replication is insufficient. The plaintiff excepted.

Appeal in Chancery. Heard on demurrer to the bill at the December Term1, 1903, Orange County, Start, Chancellor. Decree, pro fprma, sustaining the demurrer and dismissing the bill. The orators appealed.

<p>Statute of Limitations — Extension of Period — Previous Action — Commencement—Failure of Service — Unavoidable Accident — Evidence—Motion to Dismiss.</p> <p>Tbe inquiry under a motion to dismiss relates only to wbat appears of record.</p> <p>Fot most purposes, if not for all not relating to tbe Statute of Limitations, an action is not commenced until process is served.</p> <p>Under tbe general provisions of tbe Statute of Limitations, tbe time of issuing tbe writ is tbe commencement of tbe action, provided due service follows, but not otherwise.</p> <p>Wben a writ is issued witb tbe purpose on tbe part of tbe plaintiff to bave it served and proceeded witb, and service thereof fails through unavoidable accident, the suit is commenced within the-meaning of V. S. 1214, which is an exceptional provision of the Statute of Limitations.</p> <p>A writ “fails of sufficient service,” within the meaning of V. S. 1214, when there is an utter failure of service.</p> <p>When the evidence tends to show that a writ was issued within the period of limitations, and the next day plaintiff’s attorney in another county sent the writ by mail to the clerk of the county court, with a letter requesting him to approve the bail and forward the writ to the plaintiff’s local attorney by next mail; that the clerk complied with the request, but when the writ reached the office of the latter attorney he was away from home, but returned in about a week, when twelve days still remained for . service; that he did not find the writ, and knew nothing of it until long after the time for service -had -expired, when it was discovered in a pigeonhole with matter relating to an official position held by . the attorney, which had come in envelopes of the same size; that the attorney had assumed that his associates in the other county would attend to the service of the writ; that there was no doubt he acted in good faith; such evidence tends to show that the failure of service- in question resulted from “unavoidable accident” within the meaning of Y. S. 1214.</p> <p>Oral evidence is admissible to show why a writ failed of sufficient servide, although said writ was entered in court, and on motion, was dismissed for lack of seasonable service.</p> <p>Though evidence be undisputed, yet, if it affords ground of opposing inferences of fact in the minds of reasonable m'en, it is for the jury to consider.</p> <p>When the evidence relied upon to show certain facts is wholly oral, and there is no- concession that the facts were what the oral evidence tends to- show, the question cannot be taken from the jury except by a ruling, as a matter of law’, against the party on whom the burden of proof rests-.</p>

<p>Chief of Police — Removal—Constitutional Law — Rule of Police Department — Reasonableness.</p> <p>Tbe chief of police of a city is a “police offices',” and a ‘^member iof the police force” within the meaning of a rule adopted by the police department to secure the good conduct and efficiency of the police force.</p> <p>The officers elected in the organization of party caucuses, and the positions filled by the action of those daucuses, are not such officers and offices as are contemplated by the eighth article of the Constitution of the State of Vermont.</p> <p>A rule of the police department of a city forbidding members of the police force to be delegates to or members of political caucuses, or to take part in any political canvass, is a reasonable exercise of the power to make rules for the government of the police force.</p> <p>When the chief of police of a city acts as chairman of a caucus, and as chairman of a political meeting, he is guilty of official misconduct sufficient to justify his removal from office, on the ground that he has thereby violated a rule enacted by the police department forbidding members of the police force to be delegates to or members of political caucuses, or to take part in any political canvass.</p> <p>When a rule of the police department of a city forbids police officers to do a specific act, and the board of examiners, upon charges preferred against him, finds that the chief of police has done the forbidden thing, they Cannot control the effect of their finding by also reporting that they find him not guilty of the charge.</p>

General Assumpsit, with specification of a promissory note, special plea alleging that defendant’s signature is a forgery. Trial by jury at the April Term, 1903, Windham County, Mumofhj J., presiding. Verdict and judgment for the defendant. Plaintiff excepted. The note in suit is for $150.00, is joint and several, payable to the plaintiff, or order, dated June 18, 1 goo, and purports to be signed by Clara I. Hall, Israel L. Hall, and the ■defendant.

Appeal in Chancery. Heard on bill, answer, master’s report and exceptions thereto, at the December Term, 1901, Windsor County, Stafford, Chancellor. Decree for the orators. The defendant appealed. . The defendant, Chestina Cutler, is administratrix, with the will annexed, of the estate of Sarah D. Cutler, is sister of the testatrix and her residuary legatee under said will.

General Assumpsit by an- officer to recover his' fees. Plea, the general issue. Trial by court at the September Term, 1902, Washington County, Watson, J., presiding.. Judgment for the plaintiff. The defendant excepted.

<p>Special Assumpsit on a contract of indemnity. Pleas, the general issue, and declaration in offset. Trial by jury at the March Term, 1901, Chittenden County, Start, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.</p> <p>This case was argued in the Supreme Court at the May Term, 1903. At the January Term., 1904, upon an order to that effect, it was again argued upon the question, “was it claimed by the plaintiff, at the trial, that the defendant gave him authority to sell the horse, or that there was any agreement between them to* that effect?”</p> <p>At the time defendant purchased the half interest in the stallion and took a bill of sale thereof, the parties made and executed the following agreement:</p> <p>“It is further understood and agreed that I, H. S. Soule, shall pay for Marion Wilkes’ keeping while he is standing in the stud at I. N. Chase’s stable, one-half of five dollars as my share, and one-half of other necessary expenses and while he is campaigning I shall share equally the expense, and share equally the profits or loss from service fees and what is earned, if any, while he is campaigning, and when either is dissatisfied, said I. N. Chase shall say what he will give oor take for the other’s interest.”</p> <p>The opinion states the other facts.</p> <p>The title to. this property was a tenancy in common. The parties had formed a non-trading partnership. The plaintiff could not sell the defendant’s interest in the horse without his consent. Hence there was no consideration for the defendant’s promise of indemnity. Goell v. Morse, 126 Mass. 480; Walker’s Admr. v. Walker’s Est., 66 Vt. 285; Dowling v. Ex. Banks, 145 U. S. 512; Smith v. Sloan, 19 Am1. Rep. 757; Fudge v. Bashnell, 26 Am. Rep. 183; Welch v. Clark, 12 Vt. 681; Irwin v.. Williar, no U. S. 497; Ham v. Newton City Bk., 32 Kan. 522; Bldker v. Sands, 29 Kan. 551; McNair v. Wilcax, 121 Pa. 437, 126 Mass. 470.</p> <p>A promise to do what one is bound by law to do is nudum pactum. 20 Miass. 93; 64 Vt. 387; 40 Vt. 25; 67 Am. St. 271; 77 Am. Dec. 685; 127 Mass. 31; 21 Atl. 749.</p> <p>The contract in question is one of indemnity. Beamon v. Russell, 20 Vt. 205; Carr v. Whaley, 23 Ala. 821.</p> <p>The consideration of defendant’s promise was that plaintiff should not accept the offer for the horse; that he should not insist that the horse be sold; that the defendant should have the right to sell the horse when he saw fit; the plaintiff gave up his right to terminate the horse contract by an offer to give or take.</p> <p>The promises between the plaintiff and defendant were mutual and concurrent, the plaintiff to refrain from selling the horse or insisting that he be sold, the defendant to save the plaintiff from loss for so doing. Mutual promises are sufficient consideration for each other. Sinclaire v. Blanchard, 17 Vt. 464; Black v. Peck, 11 Vt. 484; Hildreth v. Academy, 29 N. H. 227; Perry v. Blackmore, 32 Vt. 7; Weilds v. Nichols, 17 Pick. 538.</p>

<p>Ejectment by a mortgagee. Plea, the general issue. Trial by court at the March Term, 1903, Washington County, Start, J., presiding. Judgment for the plaintiff. The defendant excepted.</p> <p>Upon the evidence recited in the opinion the court found that the plaintiff had taken possession of the premises, and had been evicted by the defendant, and rendered judgment for the plaintiff for- the seizin and possession of the premises, and against Fletcher and the Kimballs, for $155.36, as damages by way -of mesne profits and costs; and adjudged that the cause of action arose from: the wilful and malicious act of the defendants, and that they ought to be confined in close jail. Thereupon the defendant applied' for an order staying execution, on the ground that the plaintiff claimed title to- the premises by a deed of mortgage, the condition of which had not been performed, under V. S. 1493-1494, and asked to have the sum equitably due the plaintiff on said mortgage ascertained. Whereupon the court did ascertain the sum so equitably due the plaintiff, and made an order as to the times the several instalments thereof should be paid, which, if complied with would stay execution, and if complied with in full, the judgment for possession, damages and costs be vacated.</p> <p>The defendant claimed there was no¡ evidence to support the finding that plaintiff was ever in possession, or that he was evicted by the defendants, or any evidence upon which to base a close jail execution, and excepted fi> the judgment of the court in those respects. The opinion states the other facts.</p> <p>There is no evidence that plaintiff took possession. Possession should ,be taken by a distinct and unequivocal act. Hopper v. Wilson, 12 Vt. 695.</p> <p>There was no evidence in the case that at the time suit was brought the defendants were rightfully in possession. Rob. Dig. Vol. 1, pi. 465, § 52.</p> <p>The judgment for seizin and possession was right. After condition' broken a mortgagee is entitled to possession. Wilson v. Hooper, et al., 13 Vt. 653; Morey, Admr. v. McGuire, 4 Vt. 327; Lull v. Matthews, 19 Vt. 322; Langdon v. Paul, 22 Vt. 205; Hager v. Bramerd et ails., 44 Vt. 294; Puller v. Bddy, 49 Vt. 11; Hamblet v. Bliss, 55 Vt. 535; Oakman v. Walker, 69 Vt. 345; V. S. 1498; Pierce v. Brown, 24 Vt. 165.</p> <p>Ejectment is a tort action, and properly followed by a certified execution. No actual malice need be found. Sheeran v. Rockwood, 67 Vt. 82; Barnes v. Tenney, 52 Vt. 557; Boutwell v. Harriman, 58 Vt. 5x6; Judd v. Bollard, 66 Vt. 668; Mullen v. Flanders, 73 Vt. 95.</p> <p>The awarding of a certified execution is matter of discretion. Smith v. Wilcox, 47 Vt. 537; Hill v. Cox, 54 Vt. 627; Soule v. Austin, 35 Vt. 515; Sartwell v. Soules, et al., 72 Vt. 270.</p>

Appeal in Chancery. Heard on demurrer to the bill at the June Term, 1903, Addison County, Haselton, Chancellor. Demurrer sustained and bill dismissed. The orator appealed.. The opinion states the case. The Court of Chancery alone has jurisdiction of the subject matter of this bill. The Probate Court does not have-general equity powers. Mann v. Mann’s Est.., 53 Vt. 55;.

Justice Ejectment. Plea, the general issue. Trial -by court at the September Term, 1902, Washington County, Watson, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the facts. No notice quit is necessary. Chamberlain v. Donahue, 45 Vt. 50; Rich v. Bolton, 46 Vt. 84. The plaintiff had the title when the suit was begun, and when it was tried. This is sufficient to enable him to maintain an action.

Petition brought to the Supreme Court for Bennington County at its October Term, 1901, under V. S. Chap. 140, for the establishment of the division line between the towns of Searsburg and Woodford. Heard at the January Term, 1904, on report of commissioners. The opinion states the facts. The authority of the commissioners is confined to- locating the charter line. Elphick v. Hoffman, 49 Conn. 331.

Petition brought to the Supreme Court for Bennington County at its October Term1, 1901, under V. S. Chap. 140, for the establishment of the division line between the towns of Readsboro' and Woodford. Heard at the January Term, 1904, on report of commissioners. The line in controversy and the questions in respect thereof are the same as in Town- of Searsburg v. Town of Woodford, ante. The opinion states the facts.

Debt, under V. S. 3724, against Frederick C. Kennedy, as director of the Burlington Woolen Co., a corporation organized and existing under a special act of the Legislature of this State, for goods sold and delivered to said corporation. Heard on a general demurrer to the amended declaration at the September Term, 1902, Chittenden County, Start, J., presiding. Demurrer sustained, and declaration adjudged insufficient. The plaintiff excepted.

Bile in Chancery. Heard on demurrer to the amended bill at the September Term, 1902, Washington County, Stafford, Chancellor. Demurrer sustained, and bill dismissed. The orator appealed. This case has been once before in the Supreme Court. See 75 Vt. 243.

Special Assumpsit on a simple contract in modification of a contract under seal for the sale and delivery of lumber. Plea, the general issue with notice. Trial by jury at the June Term, 1903, Orange County, Munson, J., presiding. At the close of the plaintiffs evidence a verdict was ordered for the defendant. The plaintiff excepted. The opinion states ■the case.

O. Vitty against the estate of Rosil A. Peaslee and the claim1 of Joseph C. Enright, the administrator, in offset thereto1. Declaration in general assumpsit, with specifications of yearly charges for board, washing, and attention covering a period of six years previous to decedent’s death. Plea, the general issue and declaration in offset. Trial by jury at the December Term., 1903, Windsor County, Mutrson, J., presiding. Verdict and judgment for the claimant.

Trov®r for a piano. Plea, the general issue. Trial by jury at the September Term, 1903, Rutland County, Munson, J., presiding. Judgment for the plaintiff on special verdicts. The defendant excepted. This case came to the county court on appeal from the city court for the city of Rutland. The opinion states the case. The trustee cannot follow the property into- the hands of a bona fide purchaser. Collier Bankr. (3 ed.) 357369; In Re Mullins, 4 Am.

<p>Trespass for killing a dog. " Pleas, the general' issue, and plea in justification. Heard on general demurrer to the second plea, at the March Term, 1904, Orleans County, Haselton, J., presiding. Dem-urrer overruled, and plea adjudged sufficient. The plaintiff excepted, and the case was passed to the Supreme Court before trial on the merits. The opinion states the substance of the plea in question.</p> <p>The plea is bad in that it does not confess the trespass-alleged in the declaration. Chit. PI. (14 Am. ed.) Vol. i, 501, Vol. Ill, 1096.</p> <p>The plea is also bad in failing to allege that defendant killed the dog while hunting deer. Simonds v. Holmes, 15 D. R. A. 253; Wells v. Head, 4 Car. & P. 568; Johnson v. McConnell, 80 Cal. 545.</p>

Appeal in Chancery. Heard on demurrer to the bill' at the September Term, 1902, Franklin County, Tyler, Chancellor. Demurrer overruled, pro forma, and bill adjudged sufficient. The defendants appealed. The opinion states the-’ case. The Legislature cannot sanction a scheme of administration of a trust fund different from that prescribed by the do-nor. Cary Library v. Bliss, 151 Mass. 364; Granville v. Mason, 53 N. H. 515; Thorp v. Bleming, 1 Hous. 580?

Trover. Plea, the general issue. Trial by court at the September Term., 1903, Orleans County, Stafford, J., presiding. Judgment for the plaintiff. The defendant excepted. The trial court found that the defendant at the time of trial was, and for ten years before had been, a deputy sheriff within and for the County of Orleans; that on April 4, 1903, an execution, issued om a judgment of the Orleans County Court in favor of C. K. Colby, W. S'.

121, § 2, Acts 1898, by the sheriff of Bennington County. Heard on motion to dismiss the appeal at the December Term, 1903, Bennington County, Watson, J., presiding. Judgment pro forma dismissing the appeal. The appellant excepted. The Auto Machine Co-. entered as claimant before the justice, and is the appellant. The proceeding at first was in rem but, when the appellant came in as claimant, it became a proceeding inter partes. State v. Adams, 72 Vt. 255.

Information filed at the respondent’s request, for an assault with intent to kill and murder. Plea, not guilty. Trial by jury at the September Term, 1903, Orleans County, Stafford, J., presiding. Verdict guilty, and judgment thereon. 'The respondent excepted.

Indictment for unlawfully killing wild deer. Heard on demurrer to the indictment at the September Term¡ 1903, Washington County, Stafford, J.., presiding. Demurrer overruled, pro forma. The respondent excepted. The words of the statute, “as hereinafter provided,” must refer to the open season, the only words in the excepted clause to which they could refer. This statute must be construed strictly. State v. Broderick, 61 Vt. 424; Com. v. Fisher, 17 Mass. 49; U..

Generad Assumpsit, with .specification of book account. Plea, the general issue. Heard on the report oif a referee at the December, Term, 1903, Windsor County, Mun-son, J., presiding. Judgment that the plaintiff recover 91 cents and interest.. The plaintiff excepted.

Case for personal injuries. Plea, not guilty. ■ Trial by jury at the October Term, 1903, Essex County, Munson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

General Assumpsit for the value of an undivided half of certain hay. Plea, the general issue. Heard on the report of a referee at the September Term, 1903, Franklin County, Watson, J., presiding. Judgment for the defendant. The plaintiff excepted. The hay in question was left on the premises by the plaintiff at the expiration of the lease.

Case for personal injuries. Plea, the general issue with notice. Trial by jury at the December Term, 1903, Windsor County, Munson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.