cember, 1907, and following days, and on the 2d day of January, 1908, the jury returned a verdict for the plaintiff in the sum of two thousand seven hundred and fifty dollars ($2,750); that on the 11th day of March the said justice filed a decision granting the defendant's motion for a new trial unless the plaintiff remit one thousand dollars ($1,000) from the amount of the said verdict within ten days; that on the 25th day of May the defendant filed its bill of exceptions; that at a hearing fixed by said justice counsel for the plaintiff objected to the allowance of said bill as the defendant's bill of exceptions, but the said justice on the 28th day of May allowed said bill and transcript.

"And your petitioner says that he is aggrieved by the ruling of said justice in allowing said bill of exceptions, and he is aggrieved by the refusal of said justice to alter the same and to disallow the same as prayed for by the petitioner at said hearing, for the following reasons:

"(1) The defendant has not stated separate ly and clearly the exceptions relied upon.

"(2) The first group of rulings in said bill should have been stricken out for the reason that the defendant has not stated separately and clearly the exceptions therein relied upon.

"Wherefore your petitioner prays that the truth of the exceptions shall be established by this court, and that the alleged exceptions to the first group of rulings be disallowed and be stricken from said bill."

The defendant's bill of exceptions, the truth of which is sought to be established in this proceeding, reads as follows:

"The defendant in the above-entitled action comes and files its bill of exceptions, and says that said case was tried before the Honorable George T. Brown, one of the justices of said court, and a jury, on the 30th day of December, 1907, and the 2d day of January, 1908, and a verdict was rendered for the plaintiff in the sum of $2,750, and that certain exceptions have been taken by said defendant in the proceedings in said case, as follows:

"(1) To certain rulings of said justice, at the trial of said action, admitting or refusing to admit certain evidence, as shown on pages 158, 182, 193, and 196 of the transcript of testimony, etc., filed herewith.

"(2) To the refusal of said justice, at said trial, to direct a verdict for the defendant, as shown on page 210 of said transcript.

"(3) To a certain statement made by plaintiff's attorney during the course of said trial, to which exception is noted on page 43 of said transcript.

"(4) To the decision of said court denying the defendant's motion for a new trial, which motion was based upon the following grounds: (a) That said verdict is contrary

(b)

to the evidence and the weight thereof. That said verdict is contrary to the law. (c) That the amount of damages awarded by said verdict is excessive.

"And the defendant insists that all of said rulings were erroneous, and that said errors entitle it either to a new trial or to a judgment entered in its behalf. Wherefore the defendant tenders this its bill of exceptions, and prays that the same may be allowed by the court in accordance with law."

The evident purpose of Court and Practice Act 1905, § 494, is to confer upon this court jurisdiction over exceptions that their truth may be established. As we have heretofore said in Vester v. Rhode Island Co., 29 R. I. 214, 69 Atl. 606: "Under Court and Practice Act 1905, § 492, the justice who presided at the trial shall examine bills of exceptions and hear the parties, and if he shall find the exceptions, rulings, instructions, and findings correctly stated, he shall allow them. The burden of ascertaining whether the exceptions are stated clearly and separately is properly placed upon the trial justice to whose rulings the exceptions were taken; but no exception to his allowance is permitted by the statute. The only remedy provided for either party aggrieved by the failure of the justice to act upon the bill of exceptions, or to return the same, or to his disallowance of, alteration of, or refusal to alter the same, is to establish the truth of the exceptions before this court upon petition stating the facts under Court and Practice Act 1905, § 494." But, when this remedy has been invoked by either party, its scope cannot be restricted by the form of the prayer of the petitioner. The court will endeavor to ascertain the truth of the excep tions, and this cannot always be done by excision.

In ascertaining whether the exceptions, rulings, etc., were correctly stated, the trial justice had not only the bill of exceptions and transcript of the evidence before him and the counsel for the respective parties to aid him, but he had also the assistance of his memory as to what transpired at the trial. Necessarily we can have no such recollection. In the case at bar we have been obliged to ascertain the truth of the exceptions from an examination of the bill of exceptions and the transcript of testimony. But in making the examination and in arriving at our conclusions we have not been hampered by technicalities. The statutory requirement contained in Court and Practice Act 1905, § 490, in the words "shall state separately and clearly the exceptions relied upon," is intended for the benefit of the opposing party as well as for the benefit of the court upon its examination of the exceptions, so that it should be clearly apparent to such party upon what grounds exceptions will be urged before the court in order that he may be advised upon what questions he must prepare his brief

for the argument of the case. If, as frequently happens, an examination of the case by the excepting party eliminates a large number of questions which are deemed to be immaterial upon final consideration, it is for the benefit of the court, as well as of the opposing party, that those questions be eliminated in the frame of the bill of exceptions, so that the real questions intended to be litigated shall be presented upon bill of exceptions, rather than that the bill of exceptions should be so general in its character as to be notice to the opposing party of the intention to litigate every possible question which appears to be reserved upon the transcript. This work of elimination has to be done sooner or later, and it might well be done upon the bill of exceptions in the first place, rather than upon the briefs upon final argument, thereby relieving the opposing party of the apparent necessity of discussing questions which in the end are waived by the excepting party.

Paragraph 1 of the defendant's bill of exceptions, hereinbefore set forth, does not comply with such statutory requirement. In the first place it is not clear to except to certain rulings upon the ground that the court erred in "admitting or refusing to admit certain evidence," when in fact the rulings of the court were confined to refusals to admit testimony. Neither is it stating clearly and separately to group in one exception eight rulings, whereof two are shown on one page, four upon another, and one each on other pages, of the transcript of testimony. The grounds of the objections which were the foundation of the exceptions are only stated in four instances, viz.: The first objection in which the ground was stated (immateriality) was made to question 25 on page 158 of the transcript of testimony; the second (want of notice to plaintiff) appears to question 48 on page 182 thereof; the third (want of materiality) to question 200 on page 192, exception saved on page 193 thereof; and the fourth ("same objection") to question 101 on page 193 aforesaid. While it is possible for the court to gather from the context the probable ground of the other objections, it is just as easy, or easier, for the counsel who were engaged in the trial of the cause to do this and save the court this trouble. The defendant should have set out his eight exceptions to the refusal of the court to admit the testimony offered. This court, having examined the bill of exceptions and transcript, finds that the defendant did save eight exceptions, as aforesaid; and their truth-that is, the truth that such exceptions in fact were tak

en-is established, and the same may be properly set out in the bill of exceptions by amendment.

The truth of the exception referred to in the second paragraph of the defendant's bill of exceptions is also established, and is allowed. It may be necessary, however, to renumber the same, and permission is granted for that purpose.

The truth of the exception mentioned in the third paragraph of said bill is not established. No exception was taken to any ruling of the court. The incident appears in the trans cript of the plaintiff's testimony as follows: "Q. 354. Then-didn't you say in direct examination that the passenger car that you took to go home that night was going about as fast as it could go? A. Well, I don't know; took my ticket to get a ride to the conductor and-(question repeated by stenographer). A. About quarter of or 20 minutes of 1.

"Mr. Waterman: He is hard of hearing, and I think the accident affected his ears.

"Mr. Rice: I take exception to that. "The Court: I think there is no such allegation.

"Mr. Rice: I think it is very improper for counsel to say it before the jury."

There the matter was allowed to rest. No exception was taken in the proper sense of the term, and none was allowed by the superior court at the time. The truth of this exception not having been established, the same is disallowed.

The truth of the exception contained in the fourth paragraph of the bill is established. The same is not objectionable, because the grounds on which the motion was founded are set out, and the same is allowed.

The truth of the exceptions having been established as hereinbefore set forth, the bill of exceptions may be amended accordingly, and the cause will stand for further proceedings.

Additional Opinion.

PER CURIAM. The verdict was approved by the justice who presided at the trial of the case in the superior court, and is sustained by the evidence. The court ordered the plaintiff to remit, and he has remitted, $1,000 of the damages awarded by the jury. We do not consider the damages so reduced to be excessive. The several exceptions of the defendant are without merit, and are therefore overruled.

The case is remitted to the superior court, with direction to enter judgment on the verdict for the amount reduced as aforesaid.

(81 Vt. 405)

SCOVILLE v. BROCK. (Supreme Court of Vermont. Washington.

Oct. 8, 1908.)

1. APPEAL AND ERROR (§ 882*)-REMAND FOR FURTHER FINDING-RECEPTION OF FURTHER EVIDENCE.

Where a suit was remanded for a further finding, and on the rehearing additional testimony was first offered by orator, and no objection was made to the taking of further testimony, nor was the master's report excepted to because thereof, orator cannot object on appeal that the mandate did not authorize the taking of additional testimony.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § 882.*]

2. APPEAL AND Error (§ 1212*)-REMAND FOR FURTHER FINDING - AUTHORITY TO MAKE ULTIMATE FINDING.

Where, on appeal from a ruling on demurrer, it was held that a trustee could not be excused from the exercise of ordinary care in disposing of securities, which had a marketable value, but were in fact worthless, because, if he had ascertained the facts, he could not have sold them without committing a fraud, and it was not determined what knowledge was chargeable to the trustee, and the cause was remanded for a finding as to whether the trustee, in holding the securities, acted with fidelity and diligence, the question before the master on recommittal was not limited to whether the trustee had any excuse for not selling, and the fact that the master found that certain of the securities could have been sold above par without the trustee incurring personal liability did not preclued an ultimate finding exonerating the trustee.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 1212.*]

3. PLEADING (§ 36*)-ALLEGATIONS OF OPINION-CONCLUSIVENESS OF ADMISSION.

Allegations that it was widely believed at the places where companies were located that they were fraudulently organized, and had defendant, a trustee who had invested trust funds in the companies, gone there he would have been satisfied as a prudent man that the investments were unsafe, are not allegations of a matter of fact, but of an opinion or speculation, and their admission by answer does not convert the matter alleged into a positive fact.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 81, 82; Dec. Dig. § 36.*]

4. PLEADING (§ 36*)-CONCLUSIVENESS Of Ad

MISSIONS.

The allegation of the belief that the companies were fraudulently organized, if treated as one of fact, would only be an allegation of one element to be considered in determining whether the trustee had exercised due care in investing the funds, and the allegation as to how the ascertainable information would have affected the trustee as a prudent man was but the raising of one speculation on another, both dependent upon the trustee's visit, which was not alleged, and the admission thereof was not conclusive.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 81, 82; Dec. Dig. § 36.*]

5. PLEADING (§ 36*)-FORCE OF CASUAL AD

MISSIONS.

A party is not bound by a casual admission in his pleadings of what prudence would have required of him.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 81, 82; Dec. Dig. § 36.*]

6. TRUSTS (§ 263*)-REFERENCE TO MASTER. In a suit to charge a trustee with negligence in his investments, it was for a master, to whom the case was referred, to say from all the facts the trustee ascertained, and all he ought to have ascertained, whether he exercised the diligence of a prudent man in retaining the securities; and he could treat an admission in his answer as conclusive proof of the existence of the belief stated in the allegation that at the home of the corporation in which he had invested it was held in bad repute, and that and the fact of his visit to such place as conclusive proof that he learned of the belief, and yet not accept the admission as conclusive upon the ultimate fact submitted.

[Ed. Note.-For other cases, see Trusts, Dec. Dig. § 263.*]

7. TRUSTS (§ 262*) — INVESTMENT OF TRUST FUNDS-DILIGENCE OF TRUSTEE-EVIDENCE.

Evidence held not sufficient to raise a presumption of negligence of a trustee in not learning facts concerning companies in which he had trust funds invested which rendered the investments unsafe.

[Ed. Note. For other cases, see Trusts, Dec. Dig. § 262.*]

8. TRUSTS (§ 263*)-REFERENCE TO MASTER— FINDINGS.

Where a reference was had to a master to determine whether a trustee had acted with due diligence in retaining securities in which the trust fund was invested, and he found that he had so acted, a party cannot complain of a failure to find whether the trustee could have ascertained the unsafe condition of the companies in whose securities the fund was invested before their failure, since the question would still have remained whether the trustee had exercised due diligence, which question was covered by his finding as made, and which was not inconsistent with the finding called for.

[Ed. Note.-For other cases, see Trusts, Dec. Dig. § 263.*]

9. TRUSTS (§ 263*)-INVESTMENT OF FUNDSDILIGENCE OF TRUSTEE.

While a high rate of interest on securities, frequent increases of stock by the company, and the fact that the securities are not of a class sanctioned by the savings bank law, are facts to be considered in determining whether a trustee acted prudently in keeping the trust fund invested in them, they are not facts which would as a matter of law charge the trustee with the duty of a special examination and with knowledge of the facts that such an examination would have disclosed.

[Ed: Note. For other cases, see Trusts, Dec. Dig. § 263.*]

10. TRUSTS (§ 217*)-INVESTMENT OF FUNDSINVESTIGATION OF SECURITIES-DUTY OF

TRUSTEE.

STOCKS AND BONDS OF PRIVATE

FUNDS CORPORATIONS.

[Ed. Note. For other cases, see Trusts, Dec. Dig. § 262.*]

12. TRUSTS (§ 262*)-INVESTMENT OF FUNDSREPUTATION OF SECURITIES-ADMISSIBILITY OF EVIDENCE.

Even if the admissibility of evidence of the general reputation of the securities in which a trust fund was invested depended upon a reputation of a rather long standing, a reputation extending from 1881 to 1893, during which time they had paid interest and dividends, was sufficient.

[Ed. Note.-For other cases, see Trusts, Dec. Dig. § 262.*]

13. TRUSTS (§ 262*)-INVESTMENT OF FUNDSREPUTATION OF SECURITIES-ADMISSIBILITY OF EVIDENCE.

The rule restricting such evidence to securities of companies in the neighborhood of one's residence or business location does not apply; the knowledge of the affairs of a foreign private corporation available to the general public of its own section not requiring a distinction between localities.

[Ed. Note.-For other cases, see Trusts, Dec. Dig. § 262.*]

14. GUARDIAN AND WARD (§ 53*) - INVESTMENT OF FUNDS-DILIGENCE REPUTATION OF SECURITIES.

A guardian, in investing his ward's funds, need not base his action upon actual knowledge of the soundness of securities retained, but may rely upon their general reputation.

[Ed. Note.-For other cases, see Guardian and Ward, Cent. Dig. §§ 232-241; Dec. Dig. § 53.*] 15. EQUITY (§ 405*)—MASTER-CREDIBILITY OF WITNESSES.

The effect of an alleged inconsistency in the testimony of a witness before a master is for the master to determine.

[Ed. Note.-For other cases, see Equity, Dec. Dig. 405.*]

16. EQUITY (§ 405*)· MASTER-POWER TO MODIFY OR REVERSE PREVIOUS FINDINGS.

With further evidence before him, a master may disregard, modify, or reverse a previous finding.

[Ed. Note.-For other cases, see Equity, Dec. Dig. § 405.*]

17. TRUSTS (§ 262*)—INVESTMENT OF FUNDS PRUDENCE OF TRUSTEE — ADMISSIBILITY OF EVIDENCE-ADVICE ON INVESTMENT.

Evidence that a trustee had consulted a person of standing as a financier about securities in which trust funds were invested is admissible as evidence of his prudence, though the opinion obtained was not based on a personal knowledge of matters which determine the value of the securities, and such financier had not invested trust funds in such securities.

[Ed. Note. For other cases, see Trusts, Dec. Dig. § 262.*]

18. TRUSTS (§ 262*)-INVESTMENT OF FUNDSDILIGENCE OF TRUSTEE-ADMISSIBILITY OF EVIDENCE.

The admissibility of the evidence was not affected by the fact that the trustee was himself vice president of the bank of which his adviser was president, and had no reason to suppose that his adviser knew more about the matter than he did.

[Ed. Note. For other cases, see Trusts, Dec. Dig. § 262.*]

There is no special rule prohibiting the investment of trust funds in the stocks and bonds of private corporations, though located without the state; and in case of loss the question of liability depends upon whether the trustee acted with fidelity and with the care and diligence of. a prudent man.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. § 307; Dec. Dig. § 217.*]

20. CONSTITUTIONAL LAW (§ 70*)-JUDICIAL POWER-ENCROACHMENT ON LEGISLATURE. The adoption of special rules determining the classes of securities proper for the investment of trust funds is the office of the Legislature, and not of the courts.

[Ed. Note. For other cases, see Constitutional Law, Dec. Dig. § 70.*]

Appeal in Chancery, Washington County; John W. Rowell, Chancellor.

Bill by William L. Scoville against James W. Brock. Decree of dismissal, and orator appeals. Affirmed and remanded.

Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ.

Elbridge R. Anderson, Edward H. Deavitt, and Harry C. Shurtleff, for appellant. Hunton & Stickney, for appellee.

MUNSON, J. When this case was last before us (79 Vt. 449, 65 Atl. 577, 118 Am. St. Rep. 975) it was remanded, that the report might be recommitted for the master to find "whether the defendant, in continuing to hold the securities, acted with fidelity, and with that measure of care and diligence that a prudent man would have exercised in the same circumstances." The finding is for the defendant, but the orator contests its validity on several grounds.

It is said that the mandate contemplated a further finding on the case as then made up, and that the taking of additional testimony was not authorized. The order of recommittal is not before us, but presumably it followed the mandate, and the terms of the mandate did not preclude an exercise of the master's discretion regarding the hearing. See Richardson v. Wright, 58 Vt. 367, 5 Atl. 287. It is said, however, in view of the circumstances and ground of the recommittal, that the mandate cannot be allowed the construction adopted by the master without doing the orator an injustice, and that the construction is therefore one that the court cannot have intended. But the first reception of evidence at the rehearing was on the orator's offer, and no objection was made to the taking of further testimony, nor was the report excepted to because based on the testimony so taken.

It is said that, when the allegations of the bill were examined on demurrer (76 Vt. 385, 57 Atl. 967), they were held sufficient to show that the securities the defendant received were not proper investments, and that it was his duty to sell them if a sale was feasible;

that the only question before the master on recommittal, if the mandate be given a construction consistent with that decision, was whether the defendant had any excuse for not selling; and that, inasmuch as the master has found that certain of the securities could have been sold above par without incurring personal liability, and had evidence before him from which he ought to have made the same finding regarding them all, his ultimate finding in exoneration of the defendant is beyond his authority. It is said, further, that, since the allegations then passed upon are now admitted by the answer, the record is the same on the merits as on the demurrer, and requires the same decision. These claims are not justified by the scope of the former adjudication. The point of that decision was that the defendant could not be excused from the exercise of ordinary care in disposing of securities which had a marketable value, but were in fact worthless, on the ground that, if he had ascertained the facts, he could not have effected a sale without committing a fraud. It was not necessary to determine just what knowledge was chargeable to the defendant on the pleadings, nor whether that knowledge was such as charged him with the duty of selling.

It is urged that the conclusion of the master is inconsistent with a conclusive admission contained in the answer. This claim is based on a consideration of the admission in connection with certain reported facts. It was alleged, in substance, in the first paragraph of the first amended bill, that the securities were in fact worthless, that it was widely believed at the places where the companies were located that they were fraudulently organized and conducted, and that if the defendant had gone to these places and made an investigation he would have been satisfied, as a man of ordinary prudence, that the investments were unsafe. The defendant, in his amended answer, admitted in general terms the allegations of this paragraph. It now appears that the defendant visited Sioux City while he was holding the securities, and went to the office of the Loan & Trust Company, and inquired how the company was getting along. The master reports that in reaching his conclusion he treated the admission as conclusive of the facts alleged. but not as conclusive of the ultimate fact to be determined. The orator's argument is this: The defendant admits that, if he had gone to Sioux City and inquired as to the standing of the Loan & Trust Company, he would have ascertained its condition. The master finds that he did go to Sioux City and make the inquiry. So he must either have ascertained the facts, or been negligent in his investigation. Upon this reasoning, the fact that the defendant visited Sioux City gives to the admission an effect at variance with the master's conclusion. The question is whether the orator is entitled to have the

admission given a conclusive effect as regards the ultimate fact.

man.

We think the orator's argument is without substantial basis. The allegation of what the defendant would have discovered is not the allegation of a matter of fact, but of a matter of opinion or speculation. It cannot be said that the existence to a considerable extent in the community generally of the unfavorable belief was something which one making a diligent inquiry on the ground must necessarily have discovered. The admission of an allegation of this nature cannot convert the matter alleged into a positive and conclusive fact. Moreover, the matter alleged, if it be treated as a fact, is but one of several elements to be considered in determining the question submitted. The defendant might have learned of the unfavorable views entertained by a portion of the community, and still have become satisfied on reasonable grounds that the company was solvent and well managed. The final allegation, as to how the ascertainable information would have affected the defendant as a prudent man, is but the raising of one speculation on another. The allegation involves, not only what the defendant would have learned, but the effect that the things learned, when considered in connection with other information, would have had upon his judgment as a prudent Furthermore, it must be kept in mind that these matters are made dependent upon an event that is not alleged to have occurred, and are admitted as alleged. Now, an admission will not be conclusive unless complete in itself, or made complete by a necessary inference from some other averment. See, Schwarz v. Sears, Walker Ch. (Mich.) 19. This completeness cannot be predicated of an admission which depends for its force on the finding of a further fact from the evidence. It should also be noticed that, if the claim now made by the orator is sustained, the defendant will be made liable on a different ground from that set up in the bill; for the bill assumes that the defendant did not visit Sioux City to make inquiry, and charges him with negligence in that respect. These considerations all point to the inconclusiveness of the admission regarded as a pleading, and, if not conclusive under the rules of pleading, it has no conclusive effect. A party is not bound by a casual admission of what prudence would have required of him. Stowe v. Bishop, 58 Vt. 498, 3 Atl. 494, 56 Am. Rep. 557. It was for the master to say, from all the facts the defendant ascertained and all he ought to have ascertained, whether he exercised the care and diligence of a prudent man in retaining the securities. He could treat the defendant's admission as conclusive proof of the existence of the belief stated, and that and the fact of his visit as conclusive proof that he learned of the belief, and yet not accept the admission as conclusive upon the ultimate fact submitted for his determination.