select three discreet, honest, and disinterested persons, inasmuch as said defendants, being creditors, were interested, and legally disqualified to perform the trust; that Goodspeed did not convey to said assignees all of his property, and that defendants Powell, Robb, and Lambert did not keep their said agreement, did not file a true list of property and schedule of the creditors, but disregarded their duties and obligations to the property, and converted the same to their own use, and finally distributed the property among themselves, and refused to account in accordance with the provisions of said chapter; that the orators did not know that Powell, Robb, and Lambert were creditors, and legally disqualified, at the time of their appointment, but afterwards, being advised by counsel that said assignment was void, prayed out a writ of attachment against Goodspeed, attached certain of the assets, and obtained judgment in their suit, after which they found that the defendants had placed said property beyond the reach of process; that a large number of intricate legal questions are involved, and numerous vexatious suits likely to grow out of the said transaction, and that an accounting should be had, and the defendants required to answer; that Goodspeed should be required to state whether he has conveyed to his assignees all of his property according to his agreement; that Powell, Robb, and Lambert should be directed to account for the property conveyed to them, and to pay the orators their just proportion of the same.

W. D. Stewart and C. G. Austin, for orators. Hogan & Royce and Powell & Powell, for defendants.

TAFT, J. The first point raised is that the bill is multifarious. A demurrer for multifariousness holds only when the orator claims several matters of different natures. When one general right is claimed by the bill, though the defendants have separate and distinct rights, a demurrer will not hold. Lewis v. Steel Works, 50 Vt. 477; Smith v. Scribner, 59 Vt. 96, 7 Atl. 711. There is but one general right claimed by the bill before us; that is, that the assignees shall account for the property which came into their hands by virtue of the assignment from the defendant Goodspeed. No one is made a party defendant unless it is alleged in the bill that he has been in some way connected with the fraudulent disposition of the property, or in some manner with the proceedings in respect to it. The matters of the bill are not of different natures, and therefore the bill is not multifarious. The assignment was made by Goodspeed to Powell, Robb, and Lambert, in terms, under Rev. Laws, c. 94. It is suggested that the chapter was repealed by implication, by the passage of the law relating to voluntary insolvency. Acts 1876, No. 1. If the assignment law was in force, the assignment

was invalid as to the orators, if they so elected, the assignees being creditors of the assignor, but would have been valid if the orators had assented thereto. Merrill v. Englesby, 28 Vt. 150. If the law of assignments was repealed in the manner claimed, the assignment was good as a common-law one. See Mason v. Hidden, 6 Vt. 600, and Hall v. Denison, 17 Vt. 310. A common-law assignment must be assented to in order to bind a creditor. The result is that, if we treated this as either a statutory or a common-law assignment, the bill cannot be maintained. The orators dissented, as shown by the fact that after the assignment by Goodspeed they brought a suit at law against him, and attached the assigned property, and in that suit obtained judgment for the amount of their claim.

When the assignment was made, whether it was a common-law or a statutory one, it was competent for the orators, in the first place, to have treated it as operative and valid, and claimed their rights under it, or they could have disaffirmed the assignment, -a contract made for their benefit. Bishop v. Catlin, 28 Vt. 71. They treated it as not binding upon them, and proceeded at once to attach the assigned property, and hold it independent of the assignment, or of any rights of the assignees to it. The orators could not do both. They could not at the same time treat the assignment as valid and invalid. Having chosen the latter course, and attached the assigned property, or a large part of it, upon the ground that the assignment was illegal, they cannot now abandon that position, ratify the assignment, and maintain this proceeding. It was not the bringing of the suit and obtaining judgment that determined their election. That they had a right to do. Bank v. Deming, 17 Vt. 366. It was disaffirming the assignment by an attachment of the assigned property which barred them from maintaining the position they now assume. Having made an election, they are bound by it, whatever the result of the attachment may have been. If a person has two rights that are inconsistent with each other, as when one action is founded on an affirmance, and the other on a disaffirmance, of a contract or sale of property, if he seeks one of the rights he is barred from taking a different position in seeking the other. The decree dismissing the bill was correct. The same is affirmed, and cause remanded.

MINER et al. v. PIKE'S ESTATE. (Supreme Court of Vermont. Caledonia. Feb. 3, 1899.)

ACTION ON ACCOUNT-EVIDENCE-PAYMENT. In an action to recover for certain items of account against a decedent's estate, it appeared that the account covered a period of time from 1878 to 1896; that the items were charged on plaintiff's books, kept in journal form; that in some instances they were marked "Paid" on the

margin, and in others a mark was affixed indicating that the item had been posted; that four items which accrued in 1892, and which were paid June 7, 1892, were not marked "Paid," but marked as posted; that two other items, which accrued in May, 1894, and were paid the same month, though not included in plaintiff's specifications, were neither marked "Paid" nor as having been posted; that plaintiffs rendered deceased a bill covering the items for the year 1895, and in their books for 1896 appeared a credit in regular order, reciting the receipt from deceased of cash to balance account for year 1895. Held, that the payment of the charges for the year 1895 tended, under the circumstances, to prove the payment of the account prior to that year.

Exceptions from Caledonia county; Munson, Judge.

Assumpsit by Miner & Hill against Avery D. Pike's estate. From a judgment disallowing a part of plaintiffs' claim, they excepted. Judgment affirmed.

Dunnett & Slack, for plaintiffs. Farnham & Porter, for defendant.

THOMPSON, J. The plaintiffs claimed to recover certain items of account for materials and labor furnished the deceased from November 18, 1878, to August 14, 1896. These items, aggregating over 100 in number, are charged in plaintiffs' books, which were kept in journal form. In some instances the items of charge are marked "Paid" on the margin of the book, and those not so marked ordinarily have a mark indicating posting. Four items which accrued in 1892, and which were paid June 7, 1892, are not marked "Paid," but are marked as posted. Two other items, which accrued in May, 1894, and were paid the same month, which are not included in plaintiffs' specifications, are are not marked "Paid," nor with the usual indication of posting. The plaintiffs rendered the deceased a bill covering the charges for 1895, which consisted of twelve items of charges and two of credit, and on which they acknowledge receipt of payment under date of February 29, 1898. In their books covering the transactions of 1896 appears, in regular order, with the usual marks of posting, the following entry: "Mon., Mar. 2, 1896. A. D. Pike, Cr. by cash to bal. his account for the year 1895." No amount is carried out. The last❘ preceding date is February 25th, and the first succeeding one is March 5th. The payment was in fact made. The plaintiffs conceded that the amount shown by the specifications to be due prior to 1895 should be reduced by $12, the amount of taxes paid for the plaintiffs by deceased, and the specifications for 1892 by the amount of the four items which were paid as before stated, and for which the deceased held their receipt. It appeared that before the commissioners on the estate of the deceased the plaintiffs presented for allowance charges not embraced in their specifications in the county court, and the receipts were produced covering such charges, which they conceded to be correct. In explanation of this, one of the plaintiffs tes

MOUND v. BARKER.

(Supreme Court of Vermont. Rutland. Feb. 11, 1899.)

LANDLORD AND TENANT-ILLEGAL USE OF

PREMISES-RENTS.

Where property is leased with knowledge on the part of the lessor that the lessees intend to use it for illegal purposes, and it is so used to his knowledge, he cannot maintain an action on a bond conditioned for the payment of the rent. Exceptions from Rutland county court; Start, Judge.

Action by William C. Mound against Charles E. Barker, From a judgment for defendant, plaintiff excepts. Affirmed.

Debt on a bond. Special plea and notice. The defendant offered to show by parol evidence that at the time the lease and bond were executed the plaintiff and the lessees understood and expected that intoxicating liquors would be sold in the hotel leased, in violation of the law, by the lessees, and that such liquors were sold therein with the knowledge of the plaintiff. The plaintiff objected to this evidence, as contradicting and varying the written lease. The objection was overruled, and the evidence received, and the plaintiff excepted.

Joel C. Baker, for plaintiff. Butler & Moloney and F. S. Platt, for defendant.

ROWELL, J. When an agreement, innocent in itself, is designed by one of the parties to further a purpose forbidden by the law or opposed to its policy, courts will not enforce it in favor of such party, nor in favor of the other party, if he is implicated in such design. Thus, when property is leased with knowledge on the part of the lessor that the lessee intends to use it for an illegal or an immoral purpose, and does so use it, the rent therefor cannot be recovered. Sherman

v. Wilder, 106 Mass. 537; Riley v. Jordan, 122 Mass. 231; Ernst v. Crosby, 140 N. Y. 364, 35 N. E. 603; 2 Tayl. Landl. & Ten. (8th Ed.) § 521; Jennings v. Throgmorton, Ryan & M. 251, 21 E. C. L. 744; Smith v. White, L. R. 1 Eq. 626. Carrigan v. Insurance Co., 53 Vt. 418, is not opposed to this, for there the liquors were legitimately used in the plaintiff's drug business, though occasionally sold in violation of law, and no illegal design entered into the making of the policy. The bond in suit was given by the defendant as surety for the lessees of a hotel, conditioned for the payment by them of the rent reserved, and was executed at the same time as the lease. The lease was innocent in itself, but, at the time of its execution and delivery, both the plaintiff, who is the lessor, and the lessees, understood and expected that the hotel would be used, not only for the entertainment of guests, but that intoxicating liquor would be sold therein in violation of law; and it was so sold, to the knowledge of the plaintiff. Therefore, if this suit was upon the lease itself, it could not be maintained. It can be maintained no better on the bond, for, when the foundation fails, all goes to the ground. Riley v. Jordan, 122 Mass. 231. Judgment affirmed.

LAMOILLE COUNTY NAT. BANK V. HUNT. (Supreme Court of Vermont. Lamoille. Feb. 11, 1899.)

TRIAL MISCONDUCT OF COUNSEL IN ARGUMENT-MATTERS NOT IN EVIDENCE.

In an action against a surety on notes, remarks of plaintiff's counsel to the jury that defendant did not sign the notes as an act of charity, and if they were paid by a note not in suit it would result in delay only, and that delays sometimes allowed debtors to put their property beyond the reach of process, though not justified by the evidence, did not harm defendant, where the jury found for him on the issue of payment, but not as to his entire claim in set-off.

Exceptions from Lamoille county court; Start, Judge.

Action of general and special assumpsit by Lamoille County National Bank against B. A. Hunt. There was a judgment for plaintiff, and defendant excepts. Affirmed.

R. W. Hulburd, for plaintiff. B. A. Hunt, pro se.

ROWELL, J. The exception to overruling the demurrer to the declaration being waived, and there being no exception touching the matter of usury, the only question is as to certain remarks of plaintiff's counsel in argument to the jury. The action is for the recovery of three promissory notes, signed by the defendant as surety. The defendant conceded his liability on one of the notes, but claimed that the other two were paid by giving a new note, not in suit, for the balance due thereon; and the jury so found.

In arguing this question of payment, plain

tiff's counsel said that the defendant was not doing the business of signing these notes as a matter of charity; that, if the note not in suit was taken as payment, it would then result in a delay only; that the same defenses were open in the case on trial, but that delays sometimes allowed debtors to put their property beyond the reach of process; and that all these matters were to be considered by the jury. Thereupon the defendant objected, and asked for an exception, on the ground that there was no evidence in the case tending to show such facts, and the court allowed an exception; an whereupon plaintiff's counsel said to the jury that he did not claim there was any such evidence, and, as the court understood, retracted his statement, and nothing more was said about it by either party. There was no evidence that the defendant received anything for signing said notes, nor any of his putting his property beyond the reach of process, nor was any such claim made on the trial. If the issue to which alone these remarks related had been found for the plaintiff, they might have vitiated the verdict; for they were an appeal to the jury to disregard the testimony, and to find for the plaintiff on the ground of expediency. But, as that issue was found for the defendant, he was not harmed thereon by the remarks. Although the defendant was not allowed all he claimed under his plea in set-off, yet as the issues thereunder were entirely foreign to the question of payment, and as the remarks were not at all derogatory to the defendant personally, it is clear enough that he was not prejudiced thereby on that branch of the case. Judgment affirmed.

HARDWICK SAVINGS BANK & TRUST CO. v. DRENAN. (Supreme Court of Vermont. Caledonia. April 29, 1899.)

PRINCIPAL AND SURETY-NOTICE TO PRINCIPAL QUESTION FOR JURY-APPEAL-EXCEPTIONS-DIRECTOR OF CORPORATION-EV

IDENCE.

1. To show that the payee's agent had knowledge of an agreement between the principals and a surety that a bond should not be used until an additional surety was obtained, the surety sued on the bond offered to show that the payee's agent had stated that, if they did not get another signer to the bond, the payee would take a chattel mortgage in place of the other signer. Plaintiff, the payee, claimed that this conversation was after the delivery of the bond. Held, that it was for the jury to decide whether it was before or after the delivery, and its exclusion was error.

2. In an action on a bond, admission of proof of a conversation between witness and defendant in reference to the indebtedness, in which defendant made no claim that he was not liable on it, will not be reviewed, where the exceptions do not show but that the circumstances attending the conversation were such as to require defendant's denial of liability, and to render his silence unnatural.

3. In an action by a corporation against the surety of an insolvent, exclusion of proof that the goods of the insolvent were sold by a di

rector of the corporation, at a sacrifice, was not error, where he acted as assignee under direction of the court of insolvency, and not as an officer of plaintiff.

4. Statements of a principal to one he was soliciting to sign a bond as surety, in the absence of the payee, are not admissible against the payee.

Exceptions from Caledonia county court; Taft, Judge.

Action by Hardwick Savings Bank & Trust Company against R. F. Drenan. There was a judgment for plaintiff, and defendant excepts. Reversed.

The paragraph in the bill of exceptions relating to the interview between McLoud and the defendant is as follows: "Said McLoud was a witness for the plaintiff, and was allowed to testify, against the defendant's objection and exception, that upon an occasion in the summer following the failure of Beede and Dow, when the witness and the defendant were discussing an arrangement with reference to the giving of certain notes by Drenan to be signed by Beede and the defendant in settlement of the bond indebtedness, the defendant made no claim but that he was liable upon the bond, nor that there was to have been another surety thereon." The defendant offered to show that the goods and real estate of the insolvents were sold at a sacrifice. The offer was excluded, and the defendant excepted. The defendant requested the court to charge that the action of McLoud, being a director of the plaintiff, in selling goods to said Johnson, another director, was in itself suspicious, and put the burden on the plaintiff of proving such sale to have been advantageous, and for full value; and that, if McLoud sold the property mortgaged to the bank to another director of the bank for less than its fair cash value, it released the defendant as surety to the extent of such loss to the bank. The court declined to charge according to these requests, and the defendant excepted.

Taylor & Dutton and W. P. Stafford, for plaintiff. George M. Powers and J. P. Lamson, for defendant.

TYLER, J. The plaintiff's evidence tended to show that in August, 1894, George A. Beede and George A. Dow formed a partnership for the purpose of carrying on a mercantile business in East Hardwick; that they purchased a store, and arranged with the Merchants' National Bank of St. Johnsbury to loan them money, and to take their bond as security; that the bond was prepared, in which their names appeared as principals, a blank space being left for the names of the sureties; that the bond was signed and sealed by Beede and Dow as principals, and by the defendant as surety; that the words, "one life insurance policy of Geo. A. Dow," were written in the blank space in the place for the name of one surety, which was done before the bond was executed, with the defendant's knowledge and consent; that the bond was

never delivered to the Merchants' Bank, Beede & Dow arranging with the plaintiff bank, through George L. Johnson, one of its directors, who resided at East Hardwick, and attended to its business there, to obtain their loans from plaintiff; that the defendant consented in writing to the change; that the bond was altered so as to run to the plaintiff, and was delivered to it August 29, 1894; that the plaintiff had no knowledge of an agreement between the defendant and Beede & Dow that the bond should not be delivered until another surety had been obtained, and denied that there was such an agreement in fact, that no one in behalf of the plaintiff attempted to secure additional sureties to the bond prior to the advancement of the $1,500. The bond was not delivered to the Merchants' Bank, and there was no evidence that it consented to take a life insurance policy in place of a surety for Dow. The plaintiff's evidence further tended to show that on August 29, 1894, Beede & Dow gave the plaintiff their note for $1,500, and on September 24, 1894, their note for $425, and the plaintiff credited them these sums, respectively, and allowed them to check against them; that, before accepting the bond, the plaintiff made inquiries concerning the defendant, and, becoming satisfied that his name was good for the amount of the bond, accepted it, and made the advances on his credit; that, when credit was given for the first note, the plaintiff expected that no further loan would be required, and, when application was made for another loan, it required further security, and the bond was then intrusted to Beede & Dow, who attempted to procure other sureties, and, failing in this, on September 18, 1894, gave the plaintiff a chattel mortgage upon their stock of goods as additional security. Beede & Dow became insolvent, and were so adjudged, and their estate was settled in the court of insolvency. After the application of certain credits and a dividend in insolvency, a large sum still remained due upon the notes. The defendant's evidence tended to show that Beede and Dow had agreed between themselves that each should furnish a surety upon the bond; that Beede should procure the defendant as his surety, and Dow his father as his surety; that when Beede, Dow, and the defendant met to sign the bond, Dow's father was away from home, and the bond was left with Dow to procure his father's signature, with an agreement between Beede, Dow, and the defendant that the bond should not be used until Dow's father had signed; that the words referring to the insurance policy were not in the bond when the defendant signed it, and were never written there with his knowledge and consent, but were inserted by Johnson afterwards; that at that time Johnson was informed by Beede and Dow that the bond was not to be used until Dow had procured his surety, and, before the bond was delivered to Johnson, Dow and Johnson both tried to get

another signer on the bond; that the defendant did not know that Dow's father had not signed the bond, nor that the policy had been substituted, until after the plaintiff had made its advancements to Beede & Dow; that the taking of the chattel mortgage by the plaintiff was without the defendant's procurement; that the plaintiff took possession of the goods under the chattel mortgage soon after Beede & Dow went into insolvency.

1. It is a sound proposition that if an agreement was made between Dow, Beede, and the defendant, when the latter signed the bond, that it was not to be used until Dow procured a surety to sign it in his behalf, and the plaintiff knew of the agreement when it accepted the bond, it would be such a fraud upon the defendant that the plaintiff cannot enforce the bond against him. This was the principal issue made at the trial,-whether the plaintiff had such knowledge before it accepted the bond. It is not claimed by the defendant that the plaintiff had any knowledge of that fact, unless it was chargeable with the knowledge that Johnson possessed. The plaintiff's evidence showed that Johnson "looked after" its business in East Hardwick, and it may be assumed that he did so by the authority of the board of directors, or with their acquiescence; and making loans was surely within the sphere of the plaintiff's business, and consequently within the line of duty of the directors. It was held in Foot v. Railroad Co., 32 Vt. 633, that the action of directors, though acting separately, if in the usual sphere of directors, binds the corporation, but it is unnecessary to go to that extent in the present case, for no point was made by the plaintiff in its brief or argument that Director Johnson had not authority to negotiate this loan and arrange the security. The main issue of fact below was whether Johnson knew of the agreement between the principals and the surety before he accepted the bond. Upon this question evidence of a conversation was admitted between Johnson and the witness Norcross relative to another surety upon the bond, the defendant claiming the conversation was before the bond was delivered to the plaintiff, while the plaintiff claimed it was after that time. The defendant offered to show that at the time of this conversation Johnson told the witness "that, if they did not get another signer to the bond, the bank would take a chattel mortgage upon the goods in place of the other signer," which offer was excluded. It was for the jury to decide when the conversation occurred with reference to the delivery of the bond. If it was before, the evidence offered tended to show that Johnson knew of the agreement as claimed by the defendant, and its exclusion was error, and clearly so in connection with evidence introduced by the defendant tending to show that before the bond was delivered Dow and Johnson both tried to obtain another signer upon it. In view of Johnson's undisputed connection with the

plaintiff and with the taking of the loan, we think the excluded evidence had a tendency to show that the plaintiff had learned, through Johnson, of the agreement between the principals and the defendant before it took the bond. Notice to him was, in the circumstances, notice to the plaintiff.

2. None of the other exceptions insisted upon by the defendant are sustainable. From what appears in the exceptions, we cannot say it was not unnatural that the defendant should have said he was not liable upon the bond, if that was his claim. McLoud, as the assignee in insolvency, was trying to induce the defendant to give notes with Beede for the remainder due the plaintiff from Beede and Dow upon the bond indebtedness. The circumstances attending the conversation -which is only given in substance-may have been such as to require the defendant's denial that he was liable upon the bond, and render his silence unnatural.

3. It was not error to exclude the evidence offered which tended to show that the assignee did not dispose of the estates of Beede and Dow to as good advantage as he might have done. He was one of the plaintiff's directors, but the case shows that in what he did with the property he acted as assignee, under the direction of the court of insolvency, and not as an officer of the plaintiff, who cannot, therefore, be affected by his action in that behalf.

4. What Dow said to the witness Norcross when soliciting him to sign the bond as sureone representing the plaintiff being present, was not admissible upon any ground. Judgment reversed, and cause remanded.

STATE v. BRADFORD SAV. BANK &
TRUST CO.

(Supreme Court of Vermont. Chittenden. Feb. 3, 1899.)

TAXATION-BANKING CORPORATIONS - INSOL

VENCY-FRANCHISE TAX-COSTS
AGAINST STATE.

1. V. S. c. 31, § 547, authorizes state taxation of savings banks, and section 584 requires the payment of such tax semiannually. Held, that where a savings bank was closed by the inspector for insolvency, and thereafter did only such business as was necessary to liquidate its affairs, it was not liable for the payment of such taxes subsequently accruing, since such taxation was based, under section 584, on the average amount of its deposits.

2. V. S. c. 31, § 583, requires a savings bank incorporated by the state doing business therein to pay an annual state tax. Held, that "doing business therein" applied to ordinary business for which it was incorporated, and did not apply to an insolvent savings bank in the hands of a receiver for the purpose of liquidation.

3. In the absence of statute, costs, in an action to which the state is a party, cannot be recovered against it.

Exceptions from Chittenden county court.

Action by the commissioner of state taxes against James B. Hale, as receiver of the Bradford Savings Bank & Trust Company, to