tached as a helper. Norfolk & W. R. Co. v. Earnest, 229 U. S. 114, 33 Sup. Ct. 654, 57 L. Ed. 1096, Ann. Cas. 1914C, 172. A workman, carrying a bag of bolts to be used by him in eration of the jury; and (2) the plaintiff had to pilot an engine through the yard to an failed to show that he was engaged in in-interstate train, to which it was to be atterstate commerce at the time of the injuries of which he complains. This motion was overruled, and the defendant put in its defense. At the close of all the evidence, the defendant renewed its motion, then denom-repairing a bridge regularly used in interinating it a motion for a verdict. According to the early holdings of this court, a party who appears and complies with the rules and orders of court will not be nonsuited against his will. Brown v. Munger, 16 Vt. 12. Whether a different practice has since grown up, see Carr & Blanchard v. Manahan, 44 Vt. 246, and Porter v. Platt, 57 Vt. 533; Stevens v. Blood, 90 Vt. 81, 96 Atl. 697, we need not now inquire. The difference between a motion for a nonsuit and a motion for a verdict, except as to their effect upon the right to bring a new suit, is rather a matter of form than of substance. Oscanyan v. Winchester R. Arms Co., 103 U. S. 261, 26 L. Ed. 539; Cent. Trans. Co. v. Pullman's Palace Car Co., 139 U. S. 24, 11 Sup. Ct. 478, 35 L. Ed. 55. [2] And the transcript shows that when the motion was first made it was fully discussed, and no one suggested that it was insufficient to raise the question of the right of the plaintiff to go to the jury. Both court and counsel treated it as a motion for a directed verdict. It was so styled at the close of all the evidence, the only time here important. In these circumstances we treat it as it was treated below, as a motion for a verdict. See Squires v. Squires, 53 Vt. 208, 38 Am. Rep. 668. [3] The ground of the motion first above stated was expressed in terms too general to require consideration. A motion for a verdict must point out the precise ground on which it is predicated; otherwise it is not error to overrule it. It has repeatedly been so held by this court. State v. Nulty, 57 Vt. 543; Bickford v. Travelers' Ins. Co., 67 Vt. 418, 32 Atl. 230; State v. Dyer, 67 Vt. 690, 32 Atl. 814; German v. Ben. & Rut. R. Co., 71 Vt. 70, 42 Atl. 972; Sartwell v. Sowles, 72 Vt. 270, 48 Atl. 11, 82 Am. St. Rep. 943; Terrill v. Tillison, 75 Vt. 193, 54 Atl. 187. In so far as French v. Grand Trunk Ry. Co., 76 Vt. 441, 58 Atl. 722, is to the contrary of this holding, it is hereafter to be disregarded. state transportation. Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153. A clerk, on his way through the railroad yard to meet and check up an interstate train and to mark its cars so that the switching crew would know what to do with them when breaking up the train. St. Louis, S. F. & T. Ry. Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156. A fireman who, having prepared his engine for an intrastate trip hauling a train containing interstate cars and being about to start out on his run, is walking across adjacent tracks on an errand consistent with his duties. North Carolina R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159. A brakeman on an intrastate train containing cars loaded with interstate freight, engaged in setting the brake on an intrastate car shifted onto a siding, thereby to enable the engine attached to the car to return to the train and proceed on its journey. New York Cent. & H. R. R. Co. v. Carr, 238 U. S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298. A fireman on a switching engine, engaged in moving an intrastate car for the purpose of reaching and moving an interstate car. Louisville & N. R. Co. v. Parker, 242 U. S. 13, 37 Sup. Ct. 4, 61 L. Ed.--. On the other hand, the following employés, when engaged as stated, were not employed in interstate commerce: A fireman on a switching engine, engaged in moving intrastate cars between two points in the same yard, although upon completion of that work he was to assist in the movement of other Ill. Cent. R. Co. v. Behrens, 233 U. S. 473, cars as a step in interstate transportation. 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. of a railroad company getting out coal for use 1914C, 163. A miner, engaged in the mine in interstate engines. Delaware, L. & W. R. Co. v. Yurkonis, 238 U. S. 439, 35 Sup. Ct. 902, 59 L. Ed. 1397. A machinist, engaged in moving to a new location an overhead countershaft in a shop devoted to the repair of locomotives used in both interstate and inShanks v. Delaware, L. [4] The other ground of the motion is more difficult. The question presented under it is a federal one, and the decisions of the Su-trastate commerce. preme Court of the United States must be ac- & W. R. Co., 239 U. S. 556, 36 Sup. Ct. 188, cepted as authority. From these it appears, either expressly or by inference, that the following employés, when engaged as stated, were working in interstate commerce: A car repairer, replacing a drawbar in a car then in use in interstate transportation. Walsh v. New York, N. H. & H. R. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. 60 L. Ed. 436, L. R. A. 1916C, 797. A member of a switching crew, engaged in transferring loaded coal cars to the coal chutes where the coal was to be stored for use by locomotives in interstate commerce. Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177, 36 Sup. Ct. 517, 60 L. Ed. 941. A yard conductor, alighting from an engine on his return from superior for further orders, although such | With these decisions before us to guide our orders would have required him immediately judgment, the question we are called upon to to make up an interstate train. Erie R. Co. | decide is, Was Castonguay, at the time of his v. Welsh, 242 U. S. 303, 37 Sup. Ct. 116, 61 injury, engaged in interstate transportation, L. Ed. A freight conductor employed or in a work so closely related to it as to be on a round-trip run, returning with a train practically a part of it? Shanks v. Delaware, of intrastate freight only, although on the L. & W. R. Co., supra. If he was then at trip out interstate freight was carried. Ill. work upon a direct and permanent instrumenCent. R. Co. v. Peery, 242 U. S. 292, 37 Sup. tality of such transportation, such as the Ct. 122, 61 L. Ed. A machinist's helper, roadbed or a bridge, or a locomotive or car engaged in a roundhouse repairing an engine temporarily withdrawn from that service for which had been employed in both intrastate repairs, he was within the protection of the and interstate traffic, and which was sub-act; if, on the other hand, he was working sequently so used. Minneapolis & St. L. R. Co. v. Winters, 242 U. S. 353, 37 Sup. Ct. 170, 61 L. Ed. —. When the Pedersen Case was announced, upon an indirect, remote, or possible instrumentality of such transportation, he was not within the act. We feel constrained to hold that this case it was generally accepted by the profession is ruled by the Shanks Case and not by the as warranting the conclusion that the Su-Pedersen Case, and that Castonguay's relapreme Court would ultimately hold that the tion to interstate transportation was too react applied to practically all employés of in-mote to bring him within the act. terstate railroad, except, possibly, those engaged upon new construction. Cousins v. Ill. Cent. R. Co., 126 Minn. 172, 148 N. W. 58. This is well shown by the cases cited on page 11 of the plaintiff's brief, nearly all of which were decided before the Shanks Case appeared, and are predicated largely on the Peder sen Case. In some of these it is laid down in It seems clear that if a workman changing a shaft in a machine shop is too far removed from the actual transportation to be within the act, he would be equally so if he was repairing or replacing the shaft; and he would be equally so if he was changing the location of a window in the shop, or repairing it, or replacing it. The machine shop and the the broadest terms that one engaged in re- roundhouse are both parts of the necessary pairing an instrumentality of interstate comequipment of interstate railroads; but they merce is himself employed in such commerce. are not so directly related to actual transThe author of the note to Lamphere v. Ore-portation as "to be practically a part of it." gon R. & N. Co., 47 L. R. A. (N. S.) 1, at page If Shanks was not engaged in interstate com60 suggested that, though the original act was merce, Castonguay could not have been, for declared invalid because Congress had at- he was one step further removed from actual tempted to cover employés not engaged in in-transportation. The burden of proof was on terstate commerce, the act of 1908, by the Pedersen Case, had been extended as far as Congress went in the former act. For, he says, as shown by Mr. Justice Lamar in his dissenting opinion in that case: "It would seem to require a rather vivid imagination to conceive of an occupation in which an employé of an interstate railroad could be employed which would not be connected in some way with a furtherance of interstate commerce." In that dissent, we may say in passing Mr. Justice Holmes and Mr. Justice Lurton concurred. So it was that when Ill. Cent. R. Co. v. Behrens, supra, appeared, it seemed to many like a modification of the doctrine of the Pedersen Case. And when the Shanks Case was announced in January, 1916, by a unanimous court (there had been plenty of dissents before), it seemed clear enough that either the Pedersen Case did not carry the court as far as had been supposed, or that the court had settled upon a less liberal construction of the federal act. the plaintiff (Tsmura v. Great Northern R. Co., 58 Wash. 316, 108 Pac. 774), and on this ground the motion for a verdict should have been sustained. It was error to submit the question whether or not the plaintiff was engaged in interstate commerce to the jury. If any of the essential facts had been in dispute, a jury question would, of course, have been presented. North Car. R. Co. v. Zachary, supra. But none of such facts were in dispute; nothing was in dispute that could affect that question. It was therefore for the court. The other questions briefed by the defendant were not raised below, and consequently are not before us. The errors specified require a reversal, but it does not necessarily follow that the plaintiff is to be turned out of court. For he may have a way of escape from his present situation. Judgment reversed and cause remanded. Let the plaintiff apply for leave to amend if he be so advised. (91 Vt. 395) CUTTING'S ADM'X v. CUTTING. (Supreme Court of Vermont. Washington. May 1, 1917.) 245 EXECUTORS AND ADMINISTRATORS [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 867-869.] Appeal from Washington County Court. Suit by Jennie M. Cutting, administratrix of the estate of Harvey I. Cutting, against John A. J. Cutting. From a pro forma decree overruling a demurrer and adjudging the bill sufficient, the defendant appeals. Pro forma decree affirmed, and cause remanded. Argued before WATSON, C. J., and HASELTON, POWERS, TAYLOR, MILES, JJ. and C. D. Edgerton, of Northfield, for oratrix. Edward H. Deavitt, of Montpelier, for defendant. equity, and brings the case here by appeal from a pro forma decree against him. The plaintiff states a case entitling her to equitable relief. All agree that her offset, not having been presented to the commissioners, is now barred. The time for renewing the commission has expired. She has, then, by confiding in and relying upon the advice and assurance of the defendant himself lost the means of enforcing her claim. Such an injustice the court of conscience will not tolerate. "One acknowledged principle on which courts of equity give relief," says Lord Redesdale in Bond v. Hopkins, 1 Sch. & Lef. 413, "is to prevent an advantage gained at law from being used against conscience." And the advantage which this defendant now has is against conscience, because it was induced and obtained by an assurance which he now repudiates. This is fraud. Not actual fraud, perhaps, the kind that comes from a wicked and malicious purpose, but constructive fraud, at least, the kind that is of this character because of the results that follow. Whenever one thus obtains such an advantage over his adversary, equity will step in, to the end that the latter shall not suffer for his credulity or the former profit by his own wrong. This principle has been recognized, approved, or applied in a long and unbroken line of Vermont cases. Emerson v. Udall, 13 Vt. 477, 37 Am. Dec. 604; Pettes v. Bank of Whitehall, 17 Vt. 435; Burton v. Wiley, 26 Vt. 430; Holmes v. Clark, 46 Vt. 22; Camp v. Ward, 69 Vt. 286, 37 Atl. 747, 60 Am. St. Rep. 929; Delaney v. Brown, 72 Vt. 344, 47 Atl. 1067; Scoville v. Brock, 79 Vt. 449, 65 Atl. 577, 118 Am. St. Rep. 975; French v. Raymond, 82 Vt. 156, 72 Atl. 324, 137 Am. St. Rep. 994. POWERS, J. The plaintiff is the administratrix of the estate of Harvey I. Cutting, who was a brother of the defendant. At the time of his death, the decedent owed the defendant several promissory notes, which were duly presented to the commissioners for allowance as debts against the decedent's estate. There was also an unsettled account between these brothers, on which there is said to be a large balance due the estate. When the notes were presented as above stated, the plaintiff called the defendant's attention to this balance, and they then considered the matter of presenting it to the commissioners. The defendant then assured the (Supreme Judicial Court of Maine. May 26, The pro forma decree is affirmed, and cause remanded. 1. ELECTIONS 7, RACINE v. HUNT. 1917.) (116 Me. 188) 295(2)-CONTEST-EVIDENCE -CONTRADICTING RECORD. In an election contest, under Rev. St. e. 87, the actual recount of votes will outweigh the record of election, it being shown that the ballots offered were the identical ones cast, limit on the manner of proof which may conand all of them, since the statute places no tradict the record and show the truth. plaintiff that it was not necessary to present The plaintiff brings this bill of chancery predicated upon the foregoing facts; the defendant demurs thereto for lack of jurisdiction and want of [Ed. Note. For other cases, see Elections, Cent. Dig. §§ 298, 299.] 2. ELECTIONS 273-CONTESTS-STATUTE "MUNICIPAL OFFICES." - ing originally enacted as Laws 1880, c. 198, § Cent. Dig. § 249. For other definitions, see Words and Phrases, Appeal from Supreme Judicial Court, Cum-, in evidence to contradict the record of the berland County, in Equity. Petition by Israel Racine against Henry C. Hunt. Decree of sitting justice for petitioner, and respondent appeals. Appeal denied, and decree affirmed. Argued before SAVAGE, C. J., and CORNISH, KING, BIRD, HANSON, and PHIL BROOK, JJ. W. R. Pattangall, of Augusta, for appellant. Wheeler & Howe and Joseph H. Rousseau, all of Brunswick, for appellee. meeting, which shows that he was elected. In fine, it is claimed that the court cannot go behind the record. We think that there is no merit in the contention, that the justices have jurisdiction, and that the truth should prevail, notwithstanding the record. Such is the obvious purpose of the statute. The statute in question was first enacted in 1880. Laws 1880, c. 198, § 1. It followed a period during which there had been much public discussion and dispute as to the power of various tribunals to go behind the records of elections. It was evidently intended to declare a power in the court to settle certain classes of election contests according to the truth. To find the truth, it is obviously nec SAVAGE, C. J. [1, 2] This is a petition to determine a disputed election, and is brought under the provision of section 87, chapter 7, of the Revised Statutes. The petitioner claims that he was lawfully elected select-essary to inquire outside of and behind the man, assessor of taxes, and overseer of the poor at the last annual town meeting in the town of Brunswick, but that the respondent was improperly declared to be elected to these several offices. The petitioner prays for judgment that he is entitled to the offices. The sitting justice rendered judgment for the petitioner, and the respondent appealed. It appears that the town voted to elect all town officers on one ballot. Two tickets were voted. On one ticket the name of the petitioner appeared as a candidate for the three offices, and on the other the name of the respondent. The ballots were counted by a committee appointed therefor, who reported that the respondent had received 435 ballots, and the petitioner 415. The report was accepted, and accordingly the respondent was declared elected. He qualified, and has since been performing the duties of the office. After the town meeting had adjourned, some question was made as to the accuracy of the count of ballots as reported, and they were examined. Without going into the details, it is sufficient to say that it sufficiently appears, as found by the sitting justice, that there was an error in counting, and that the petitioner received 415 votes, while the respondent in fact received only 413. The petitioner, therefore, was elected, and should have been so declared. But the respondent challenges the jurisdiction of the justices to determine the question. And he contends, further, that as the tickets were unofficial, and as they were not preserved or kept in custody by any person, by virtue of any statute, they are not admissible records. The correctness of the records is the very question that is to be decided. Under this statute, every petitioner starts in with the record against him. His opponent has been declared elected, and it has been so recorded. At first the statute applied only to elections of county officers and county attorneys. In 1893, the statute was so amended as to include elections to any municipal office. Laws 1893, c. 260. There can be no doubt that the offices claimed in this proceeding are municipal offices. Tremblay v. Murphy, 111 Me. 38, 88 Atl. 55, Ann. Cas. 1915B, 1074. The statute is broad, and it imposes no limitations as to the manner of proof. Any evidence, admissible according to the rules of evidence, is admissible in an election case to show the truth. In Howard v. Harrington, 114 Me. 443, 96 Atl. 769, L. R. A. 1917A, 211, the evidence of an actual count made in ward meeting was held sufficient to outweigh the record of an election, and a count of the official ballots found in the ballot box afterwards. It being shown, as we think it is, that the ballots offered as evidence in this case were the identical ballots cast, and all of them, we think that they were admissible, and that they offered good ground for determining the result of the election. In such a case, the fact that they were unofficial, and the fact that the law did not put them into the official custody of any person, are immaterial. Appeal denied. Decree of sitting justice affirmed, with additional costs. (40 R. I. 297) GLANTZ v. GARDINER, Deputy Sheriff. (No. 5047.) (Supreme Court of Rhode Island. June 6, 1917.) 47-TRANS 1. FRAUDULENT CONVEYANCES Laws 1909, c. 387, providing that the transfer of the major part in value of a stock of merchandise and fixtures otherwise than in the ordinary course of trade shall be fraudulent and void as against creditors of the transferor, unless the transferee demands and receives from the transferor a written list of the creditors of the transferor, certified by him under oath to be, to the best of his knowledge and belief, a full, accurate, and complete list, and unless the transferee notifies such creditors personally, or by registered mail five days before the transfer, does not merely enact a rule of evidence, but is a declaration of substantive law that the nonobservance of the statutory provisions constitutes fraud in law. [Ed. Note. For other cases, see Fraudulent Conveyances, Cent. Dig. § 34.] 2. FRAUDULENT CONVEYANCES 47-TRANSFERS OF STOCK OF GOODS-CONSTRUCTION OF STATUTE. Under Laws 1909, c. 387, where a purchaser of a stock of goods demanded and received from the seller a written list of the seller's creditors, certified under oath as full, accurate, and complete, and notified the creditors named in such list by registered mail five days before the transfer, the transfer was not void under the statute, though the list furnished did not contain the names of all the seller's creditors. [Ed. Note. For other cases, see Fraudulent Conveyances, Cent. Dig. § 34.] 3. FRAUDULENT CONVEYANCES 47-TRANSFERS OF STOCK OF GOODS-CONSTRUCTION OF STATUTE. Though a purchaser of a stock of merchandise complies in all respects with Laws 1909, c. 387, the transaction is open to inquiry as to the existence of fraud in fact. [Ed. Note. For other cases, see Fraudulent Conveyances, Cent. Dig. § 34.] 4. FRAUDULENT CONVEYANCES 47-TRANS FER OF STOCK OF GOODS-CONSTRUCTION OF Case Certified from Superior Court, Providence and Bristol Counties, under Gen. Laws 1909, c. 298, § 4. Action by Max Glantz against Samuel E. Gardiner, Deputy Sheriff. Certified from the superior court on an agreed statement of facts. Decision for plaintiff. Archambault & Archambault, of Providence, for plaintiff. Sullivan & Sullivan, of Providence, for defendant. BAKER, J. This is an action of replevin, brought by the plaintiff in the superior court for Providence county to recover possession of certain goods attached by the defendant as a deputy sheriff of said county. To this the defendant pleads non cepit, and for a second plea "that the said goods and chattels in said declaration mentioned were then and there and now are the property of one Frank S. Lockhart alias, and as the property of said Frank S. Lockhart alias were attached and held in custody by the said defendant under and by virtue of a writ of attachment issued out of the superior court" in said county "at the suit of Alphonso Brickett against said Frank S. Lockhart alias." The parties thereafter filed in the office of the clerk of said superior court for said county an agreed statement of facts, whereupon the cause was certified to this court for hearing and determination in accordance with the provisions of section 4 of chapter 298 of the General Laws of 1909. The agreed statement of facts shows that on the 19th day of December, 1916, the plaintiff, Max Glantz, paid to said Frank S. Lockhart the sum of $100 and received from Lockhart the following written instrument: "Received of M. Glantz one hundred ($100.00) dollars, deposit on sale of all household furniture contained in stores Nos. 605-613 Westminster street; also in storehouse in rear; also Columbia truck. Balance due, thirty-nine hundred dollars ($3,900.00), to be paid in full December 22, 1916. "[Signed] Frank S. Lockhart. "In presence of William A. Reiner." Thereafter, on the same day, said plaintiff consulted Alberic A. Archambault, Esq., an attorney at law and as a result of his advice the following memorandum was on the 20th day of December, 1916, written on the foregoing instrument, to wit: ber 27, 1916, by mutual agreement. A purchaser of a stock of merchandise for a fair and adequate consideration demanded and received from the seller a written list of the seller's creditors, certified under oath to be a full, accurate, and complete list, and gave notice by registered mail to each of such creditors prior to the transfer. In addition to such notice, he advertised the proposed transfer. Claims largely in excess of the amount shown by the list furnished by the seller were presented to him, thus indicating that the seller's list was incomplete. Such claims were paid by him "[Signed] F. S. Lockhart. "Max Glantz." out of the purchase price. When he paid the balance of the purchase money to the seller and On the said 20th day of December, 1916, completed the transfer, he had no knowledge the plaintiff demanded from the said Lockhart that any creditor was unpaid. One creditor, whose claim was not included in the list fur- a written list of the names and addresses of nished by the seller, had not been paid; but it his creditors, and on the same day received did not appear that the seller was not able to from him a written list, giving names, adpay any judgment that he might obtain, or had dresses, and amounts, signed and sworn to no property on which such a judgment might be levied. Held, that the sale was not in fact by said Lockhart as "a true, full, accurate, fraudulent and void as to such creditor. and complete list" of his creditors "and the [Ed. Note.-For other cases, see Fraudulent amounts due each of them," "to the best of Conveyances, Cent. Dig. § 34.] his knowledge and belief." The list included For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |