in question, it becomes apparent that the collector must have an opportunity to secure necessary legal advice. We think it should be held that, in the absence of some other suitable provision for such advice, the collector has implied authority to secure it himself at the expense of the town. Nor is the right affected by the fact that the statute now makes it discretionary with the town agent to proceed to enforce the tax by trustee process. His duties relate to the commencement and prosecution of the suit and not to legal advice, though relating to a matter which may ultimately be involved in a suit. Burton v. Norwich, supra. The fact that the town agent may determine whether the suit shall be commenced and may employ counsel, if required, to manage the litigation, does not wholly relieve the collector of responsibility nor obviate the necessity or propriety of his taking legal advice in all The statute devolves upon him the duty of setting in motion the machinery for the collection of taxes by trustee process by bringing the matter to the attention of the town agent, and he would naturally be charged with making the necessary investigation preliminary to the bringing of circumstances. the suit. of the responsibility of maintaining the suit and cast it upon the town, it intended to protect the latter's interests by vesting the authority to commence, prosecute, or terminate the suit in its law agent. The findings exclude any authority, express or implied, derived from the selectmen or the town agent, and the collector had no implied authority under the statute. While plaintiffs acted in entire good faith, they were bound to know the extent and limitations of the collector's authority in the premises, and to act accordingly. New Haven v. Weston, 87 Vt. 7, 14, 86 Atl. 996, 46 L. R. A. (N. S.) 921. But it is urged that the selectmen and town agent subsequently ratified the action of the collector, and this was one of the issues The court found that there at the trial. was no ratification by the selectmen or town agent of plaintiffs' hiring; that no instructions were given by either with reference to the prosecution of the suit; and that there was no promise to repay the cash paid out. Plaintiffs excepted to the finding that there the selectmen and town agent as being inconwas no ratification or agreement to pay by sistent with the further finding that the court "believed the entire testimony of witness E. A. Cook to be true." We will now consider Some of the circumstances necessary to imply authority on the part of town officers the exception to the finding, which for conto secure legal services at public expense are indicated in Gibson & Waterman v. Vernon, 90 Vt. 160, 97 Atl. 356, where we held that license commissioners do not sustain such relations to the town as entitle them to employ counsel at the expense of the town. [2] From what we have already said it will be evident that the finding that the advice was incidental to and a part of the pro-. ceedings to collect the tax by suit is not controlling. Besides, the scope of the finding is limited by reference to the testimony on which it was based, which was no more than that the collector consulted with plaintiffs in reference to Joy's taxes. P. [3] With reference to the principal items of plaintiffs' specification the claim is made that the collector had a right to direct the bringing of the suit; that it could be instituted by him personally or the matter could be turned over to the town agent for action. We cannot agree with this contention. S. 646, as amended by No. 52, Acts of 1910, provides that, whenever the collector of taxes has a delinquent tax in his hands for collection, he may notify the agent or other officer whose duty it is to prosecute and defend suits in which the municipality is interested of the amount of such tax and all fees accrued thereon, who is empowered, in his discretion, to institute suit therefor by trustee process in the name of the municipality. Prior to the amendment of 1910 the collector had authority to institute such suits, but in his own name. It is evident that, when the Legislature relieved the collector venience of treatment has been deferred until this time. late was an interview on March 23, 1916, aftThe occasion to which these findings reer all the charges had accrued except that of $1 for consultation with town officers. At plaintiffs' request the town agent and one of the selectmen met the collector at plaintiffs' ter of the suit against Joy. The testimony office and "talked over" with them the matof Mr. Cook referred to above, so far as it bears on the question, was to the effect that there was no suggestion on the part of any one that plaintiffs had not been properly employed, or that they disapproved of the suit or were in any way dissatisfied with what had been done; that he informed them as to what he had discovered about the tax books and showed them the answer made by Joy's attorneys in the tax suit; that it was left undecided whether they would discontinue the suit and "pay the bills" or proceed with it, as to which they would make up their minds later; that he made them an offer to discount all charges for services and demand only items of cash paid out, if it should seem best to discontinue the suit; and that as they left they said they would make up their minds within a few days and let plaintiffs know which they decided to do. In this connection it appeared that on April 14, 1916, plaintiffs were given notice in writing signed by all of the selectmen and by the town agent that the suit was instituted without their knowledge or consent, and that the town would not be responsible for plaintiffs' serv ices and the expenses incurred in prosecuting the suit. [4, 5] It is urged that, in view of what transpired at the conference, the town should be estopped from denying liability; but the law of estoppel would not apply, as none of the items sued for accrued after that date. Nor can it be said that the finding that there was no ratification was inconsistent with Mr. Cook's testimony. All that he said on that subject could have been true without an actual ratification, which presented a question of fact to be inferred by the trier from all the evidence in the case. It is specially urged that the finding that no promise was made to repay the cash paid out was inconsistent with Mr. Cook's testimony. But he did not testify to a promise to pay; did not undertake to tell what was said by the officers. At most, his testimony on that subject was a conclusion, and does not afford a sufficient basis for rejecting the court's finding that on all the evidence there was no such promise. As the questioned finding must stand, plaintiffs fail in their claim that there was a binding ratification. There remains for consideration the charge of $1 for consultation with town officers. This the court finds was a charge for the consultation of March 23, 1916, between plaintiffs, the tax collector, the town agent, and one of the selectmen. The interview was not sought by the selectmen and town agent. There was a complete explanation of all matters in relation to the suit, and plaintiffs advised as to the legality of the taxes assessed by the defendant town; but the court finds that this advice was "incidental to the suit." It fairly appears that the interview related to the advisability of pressing the suit. It is not claimed that the item was a proper charge against the town on account of the tax collector; nor, in the circumstances, is there a necessary inference that it was so chargeable on account of the other officers present. It follows that we cannot disturb the action of the court in rejecting it. For error in disallowing the charge for advice to the collector the judgment will have to be reversed. No question as to costs has been made. Judgment reversed and judgment for plaintiffs to recover $5 damages and their taxable costs. (92 Vt. 110) MINER v. SHANASY et al. (Supreme Court of Vermont. Franklin. 13, 1917.) 1. EQUITY 364 OWN MOTION. Dec. DISMISSAL ON COURT's the time the bill was brought, whether a motion to dismiss was made by a party or not. 2. COURTS 37(2)—OBJECTIONS TO JURISDICTION-TIME OF MAKING. An objection to the court's jurisdiction over the subject-matter is never out of time. 3. COURTS 23-JURISDICTION-CONSENT. Consent cannot confer jurisdiction when not given by law. Appeal in Chancery, Franklin County; Leighton P. Slack, Chancellor. Suit by Elizabeth Miner, executrix, against Sarah Shanasy, and others. From a decree for defendants, plaintiff appeals. Reversed and remanded. Argued before WATSON, C. J., and HASELTON, POWERS, TAYLOR, and MILES, JJ. H. P. Dee and M. H. Alexander, both of St. Albans, for appellant. W. H. Fairchild, of Fairfield, for appellee Soule. object of which is to transfer a suit at law MILES, J. This is a bill in chancery, the of chancery, that the plaintiff may interpose from the Franklin county court to the court fense of the statute of limitation, and to obthe equitable defense of laches with the detain an injunction against the defendants, Sarah, Fred, and Elizabeth Shanasy, and for the appointment of a receiver. A temporary injunction was granted by the chancellor at the time the original bill was filed against all the defendants, restraining the further prosecution of the suit at law until further order of court. The defendant Sarah Shanasy answered admitting the facts al leged in the bill, and the defendant Harry S. Soule answered denying some of the allegations of the bill and admitting others, and no answer was made by the other defendants. Afterwards the cause came on for hearing before the chancellor, and a full hearing was had by him respecting the matters embraced in the suit at law. Facts were found and a decree thereupon rendered. Among other things, it was decreed that said lease was a valid, subsisting, and continuing obligation against the estate of Daniel Miner, and that there was due and owing from his estate the sum of $963.37, and that there would become due annually thereafter the sum of $210 on the 1st day of November in each year "as long as wood grows and water runs," or until the estate of said Miner shall have paid or caused to be paid to the estate of Samuel H. Soule the sum of $3,500, in excess of any accrued rent. From this decree the plaintiff appealed to this court. The defendant Soule, in his answer, objected that said suit at law could not be transferred to the court of chancery, the county court having acquired competent and A bill to transfer a suit at law from a coun- complete jurisdiction of that matter at the ty court to a court of chancery should have been time the bill was brought. It is stated in 7 dismissed by the chancellor as soon as it came to his attention that the court of chancery had R. C. L. 1067, par. 105, as follows: no jurisdiction, because the county court had ac- "It is a familiar principle that, when a court quired competent and complete jurisdiction at of competent jurisdiction acquires jurisdiction Where plaintiff while on a city street which was well lighted and outside of the sidewalk, wholly deserted and free from obstructions, except defendant's sleigh, which was being driven along it at a moderate rate of speed, started diagonally across the street, and was hit by one of the shafts of the sleigh when not more than 13 feet from the curb, he was negligent, as he either made no use of his eyes in self-protection, or heedlessly stepped in front of the sleigh when aware of its presence. Appeal from Superior Court, New London County; Joel H. Reed, Judge. Action by Frank W. Barber against the Great Atlantic & Pacific Tea Company to recover damages for personal injuries alleged to have been caused by the negligence of the defendant's servant. The jury returned a verdict for plaintiff for $1,096, which the trial court set aside as against the evidence, and from this decision, plaintiff appeals. Affirmed. Lee R. Robbins, of Norwich, for appellant. Allyn L. Brown, of Norwich, for appellee. PER CURIAM. The court did not err in setting aside the plaintiff's verdict returned by the jury. The reasons assigned for the court's action were that upon the evidence the jury could not reasonably have found either that the defendant's servant was negligent, or that the plaintiff was free from contributory negligence. An examination of the evidence shows that the second of these propositions clearly is sound. The plaintiff was injured in a city street, at the time well lighted, and, outside of the sidewalk, wholly deserted and free from obstructions to the sight of a traveler therein, save for the presence of the defendant's sleigh, which was being driven along it at a moderate rate of speed estimated at about four miles an hour. He had just stepped from the sidewalk with the purpose of crossing the street diagonally. At this time the sleigh must have been only a few feet away from his intended path. He had proceeded a distance from the curb, variously testified to as from three or four to thirteen feet, when he was hit in the back by one of the shafts of the sleigh. The conclusion is inevitable that in crossing as he did he either made no use of his eyes in self-protection, or that, making such use, he heedlessly stepped in front of the approaching sleigh of whose presence he must have been aware. In either event he was not in the exercise of due care. There is no error. (92 Conn. 293) SEYMOUR v. CITY OF NORWALK. 1. APPEAL AND ERROR 843(4), 931(3)-PRE- SWER. Although defendant's answer did not in terms refer to plaintiff's more specific statement, the denials of the answer were coextensive with the allegations denied as interpreted by the more specific statement filed before the answer. 3. PLEADING 364(5)-MAKING MORE SPECIFIC EVIDENTIAL MATTER. An exhibit was properly expunged from plaintiff's more specific statement where it was not an official statement of facts, and, if material at all, was only evidential matter. Appeal from Superior Court, Fairfield County; James H. Webb, Judge. Action by John S. Seymour against the City of Norwalk. Judgment for defendant, and plaintiff appeals. No error. The complaint alleges that the plaintiff, being an attorney at law, rendered services as such for the town of Norwalk at the request of the town under an agreement that the plaintiff should charge and the town pay his reasonable fees, disbursements, and expenses, that the defendant city by its charter had assumed and agreed to pay all the obligations of the town, and that plaintiff had not been paid. From a more specific statement filed by order of court it appears that the plaintiff claimed to have been originally employed by a committee appointed at a town meeting held in 1910 for the purpose of acting upon the proposed construction of a permanent bridge and park, and that he rendered the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 102 A.-37 97 Atl. 987. After the remand the pleadings of the charge-that the kind of a man you were amended by adding the replication de are?" Against an objection by his counsel injuria, and a new trial was had resulting "to his characterizing the kind of a man in a verdict and judgment for the plaintiff. The facts developed on the retrial were substantially the same as at the previous trial and are sufficiently detailed in our former opinion. he is," defendant replied under exception, "Well, I didn't have any money." Then followed the other. questions objected to, which developed the fact that the defendant when he pleaded guilty held the title to a cottage house, a double tenement house and two lots, though he didn't have them paid for. [4] Defendant's plea was an admission that his conduct on the occasion in question was not justifiable and lawful, but unlawful and criminal. The weight to be given to [1, 2] The defendant testified in direct examination that on a certain occasion he saw the plaintiff strike and kick a young man named Meeker. In cross-examination he was asked if Meeker hadn't been greasing the face of plaintiff's hammer and tools so that when plaintiff would strike his hammer it as evidence in this case depended upon would slip off, and under exception replied, "I don't remember any greasing about it. I don't know anything about that." This was not error. The defendant had testified that he was present and saw the affair. It was proper to find out all that he knew about it that would affect his estimate of the plaintiff as a "man of war." Besides, the answer was colorless and no possible prejudice to the defendant could have resulted.. Later Meeker was called as a witness in rebuttal and after testifying that on the occasion in question the plaintiff kicked him, but did not strike nor injure him, he was asked, "What did you do just before that?" and answered before an objection was interposed, "We greased his hammer." Discussion followed at the close of which the court excluded the question and allowed the plaintiff an exception. The matter has been argued here as though the ruling was the other way, as indeed the bill of exceptions would seem to indicate. But the transcript is made controlling and clearly shows that the defendant has no cause for complaint. [3] It had appeared in evidence that soon after the encounter with the plaintiff the defendant pleaded guilty in the Barre city court to a grand jurors' complaint for a breach of the peace on account of the transaction involved in this suit. The defendant had testified in direct examination that he did this upon the advice of the chief of police of the city of Barre that it was cheaper and easier for him than to try the case. Four exceptions were saved in the course of his cross-examination on this subject. They are so related that they can most conveniently be considered together, and raise the question of the scope of proper cross-examination, Defendant's counsel contend that "the characterizing of the defendant" and the inquiries as to his property were outside the limits of legitimate cross-examination. the conditions and circumstances under which the plea was entered, and it would be the duty of the jury to consider the admission in the light of such explanation as the defendant saw fit to give. Russ v. Good, 90 Vt. 236, 240, 97 Atl. 987. McKinstry v. Collins, 76 Vt. 221, 227, 56 Atl. 985. But the interests of justice require that a full opportunity be given to test the reasonableness of the explanation by cross-examination. It is clear that the court did not overstep the bounds of discretion in permitting the cross-examination to go to the extent it did. The criticism as to "characterizing the defendant" is without foundation, and in the inquiries as to property counsel only followed where the defendant led in attempting to extricate himself from an embarrassing situation. [5] In the closing argument counsel for plaintiff called the jury's attention to the fact which appeared in evidence that all the witnesses summoned by the plaintiff were still working for Jones Bros. and inquired, "Where is Good?" Defendant's counsel objected saying, "He is probably trying to make the inference that the defendant was ejected instead of voluntarily stepping out and going to farming a good while after this thing occurred." When asked by the court what he had to say, plaintiff's counsel replied that "it is perfectly proper to show that he is not there with the boys now." Thereupon the court directed him to go on and allowed the defendant an exception. Plaintiff's counsel continued: "What I was arguing to you, gentlemen, you see the trouble he had there, you have heard him tell about it, and so far as the witnesses can tell you about it, were from the statements of his own brother-or the action of his own brother-he seems to be an undesirable element; and the other witnesses that appear here in court, as far as they have testified, they are still at Jones Bros. and this disturber is no longer at work at Jones Bros." On defendant's counsel asking for an exception to the continuing of this line of argument the court ad Briefly stated the situation was this: After the defendant had said in cross-examination that the reason why he pleaded guilty was "to get off as easy and cheap as he could-dressing counsel said: "I think your argudidn't want any further trouble," he was asked, "And you had rather have a police ment is pretty doubtful on that point. * There is a good deal of question whether you to whether the defendant stayed or went, It should be remembered that the effect of away from the Jones Company, and I think I will say in that regard that your argument better not be regarded by the jury. I don't think it will help them any." To this plaintiff's counsel replied, "If the court thinks it is improper I will withdraw it." Defendant's counsel asked that so far as the matter had gone they have what benefit there was to the exception, and the incident was closed by an exception being noted for the.defendant. It will be observed that the exception of which counsel asked to be saved the benefit was the exception first noted and that the later objection was made to the continuing of that line of argument. The court on reflection, in effect, sustained this objection and apparently allowed the last exception to save to the defendant the benefit of the first. What plaintiff's counsel said in continuing the argument was, in substance, a repetition of what he had already said and, it is agreed, was entirely within the evidence. The fault with it was what defendant's counsel indicated, viz. its probable use as the basis of an inference that the defendant had been discharged by his employers because of what had happened. But the argument had not gone so far as to ask the jury to draw that inference. Defendant's counsel availed himself of the opportunity to suggest to the jury that the defendant had left voluntarily and gone to farming a long time after the affair occurred. It clearly would have been error to have permitted plaintiff's counsel to argue the inference forecasted by his argument so far as it had proceeded, and the situation as it had developed would better have been dealt with more vigorously by the court. But we are unable to say that defendant's rights were injuriously affected in view of all that transpired. error when found is not the same under the present practice as it was formerly. Then the rule was that a reversal followed unless it clearly appeared that the error was harmless. See Wilson v. Blake, 53 Vt. 305; Johnson v. Cate, 75 Vt. 100, 53 Atl. 329. Now the error works a reversal only when the record satisfies the court that the rights of the parties have been injuriously affected thereby. Supreme Court rule 7 (99 Atl. viii). The former hearing in this court was on a record made up before this rule became effective. It not being made to appear that there was prejudicial error in the argument, the exception is not sustained. [7] The defendant excepted to the court's use of the expression "actual assault" in charging the jury on the matter of self-defense. It was said as a ground of the exception that the jury would take the expression in its common use as amounting to a battery and construe the charge as meaning that the plaintiff, must have committed a battery upon the defendant before the latter could use force in defense. The court first carefully instructed the jury as to the distinction between an assault and a battery, correctly defining the former and applying the term "assault and battery" to the latter. The charge then proceeded: "Now the question here is whether at the time this blow was struck (referring to the blow defendant admitted having struck the plaintiff) * an assault was being made upon the defendant; whether the plaintiff here was so related to the defendant there at that time and place that an assault was being made upon the defendant here by the plaintiff, the plaintiff standing in such a relation to the defendant, his body so situated, his arms or hands so situated, and his general attitude and appearance being such that at the time the blow was struck and the injury done, there was an actual assault being committed on the part of the plaintiff here toward the defendant. Now was there such an assault being committed at find on the evidence there was not such an asthat time and place? If you should sault being committed then it would be your duty to find for the plaintiff to recover, because the defendant has no claim here that he is right in this matter except upon the theory of this assault." Then follows further instructions as to the right of self-defense, if the jury found that there was an actual assault committed by the plaintiff, concluding as follows: [6] In their argument in support of this exception defendant's counsel contrast the argument challenged here with that on which the case was reversed at the former hearing. But the situation is not at all alike. The question when error in argument requires a reversal is so affected by the attending circumstances that there is little profit in comparing one case with another; however, we note some of the points of difference. There, the error was in challenging plaintiff to a test of weight after the evidence was closed and when he was not in a position to accept "Now assuming that the plaintiff here did the challenge, if he had so desired. The make an assault such as defendant here claims court granted an exception without comment, he did make, * did it appear to the dethus impliedly approving the challenge. stances, that unless he struck this plaintiff he fendant at the time, under whatever circumThere was nothing by way of withdrawal. was in danger of receiving great bodily harm at Here, the discussion related to facts which his hands? If that is so, then he had a right to appeared in evidence. At most there was protect himself and to act seasonably in order to make his defense ettectual: he was only a suggestion of an improper inference. not bound to wait until an assault had actually The jury must have understood from what been made upon him before he undertook to the court finally said that the argument was protect himself. You will keep the regarded as improper; hence counsel's quali- | actually made an assault upon the defendant principles in mind if you find the plaintiff here fied withdrawal tended to correct the error. here at the time of the injury complained of." * * * * * * * |