amount of his and the firm's indebtedness" (Gove v. Campbell, 62 N. H. 401, 403), and was "fraudulent in fact" against his creditors. Thompson v. Estey, supra. Excep tion overruled. CHASE, J., did not sit. The others concurred. PRESTON v. RUSSELL et al. (Supreme Court of Vermont. Caledonia. Jan. 12, 1899.) INSOLVENCY-PREFERENCE-EQUITABLE ASSIGNMENT. Dealers in lumber, believing the financial condition of a contractor, who was a customer, was becoming worse, asked him to give orders in payment of lumber to be furnished to erect a house, on the owner, which he consented to do, and the owner agreed to pay orders to the extent of the sums due under the contract. Held not within V. S. § 2141, avoiding payments, directly or indirectly made by an insolvent within four months before insolvency proceedings, to a creditor having reasonable cause to believe him insolvent, and that the payment was made in fraud of the law relating to insolvency; the agreement being made more than four months before insolvency proceedings against the contractor, but the orders being given and payments made within that time. W. P. Stafford and Harry Blodgett, for plaintiff. Bates, May & Simonds, for defend ants. ROSS, C. J. The plaintiff, assignee of the insolvent's estate, seeks to recover $900 paid by the insolvent, within four months before filing petition to have him adjudged to be insolvent, to the defendants, under the following circumstances: The insolvent was a carpenter and builder, and the defendants were manufacturers and dealers in lumber. He had purchased the lumber for his building operations, for some time, of the defendants. In the fall of 1894 the insolvent was indebted to the defendants for lumber furnished; was, in fact, insolvent, and was believed to be insolvent by the defendants. Previously to this time the defendants had sold him lumber, from time to time, as needed by him in execution of his building contracts, and taken notes from him, payable at a bank of which one of the defendants was a director. These notes were sometimes paid when due, but often had to be renewed. In the fall of 1894 this director believed that the insolvent was in failing circumstances, and objected to giving him further credit. The insolvent then took a contract to build a house for Brooks Bros., to cost about $3,500. Brooks Bros. were responsible financially. The in Exceptions from Caledonia county court; solvent applied to the defendants to furnish Munson, Judge. Action by W. H. Preston, assignee of one Lachance, against Russell, Follensby & Co. There was a judgment for plaintiff, and defendants except. Reversed. The finding of the court upon the subject of the arrangement between the insolvent, the defendants, and Brooks Bros., relating to the furnishing of the lumber and the giving and payment of orders is in the following language: "In the fall of 1894, as early as November 1st, Lachance took a contract to furnish the material and build a house for Brooks Bros., to cost about $3,500, and told the defendants of his taking the contract, and that he should want some lumber; and the defendants, believing that his financial condition was becoming worse, decided not to go on in the old way; and Follensby, by direction of the firm, saw Lachance, and told him they would be glad to furnish him the lumber, but they should want him to give orders on Brooks Bros., instead of notes, and Lachance replied that he would rather do that than give notes, and Follensby said that he would see the Brooks Bros. about it; and Follensby then saw Jonas Brooks, one of the brothers, and inquired whether any orders Lachance gave them on Brooks Bros. would be taken care of, and Brooks replied that if they were owing Lachance the amount of the order they would make them good; after which, and before the delivery of the lumber, Follensby saw Lachance, and told him what Brooks had said." him with lumber for this house. The parties had negotiations, which resulted in the defendants agreeing to furnish the insolvent the lumber necessary to build the house, to be paid for by Brooks Bros. on orders given by the insolvent, which orders Brooks Bros. agreed to honor so far as they should be owing the insolvent on the contract at the time the orders should be given. This agreement was concluded in November, 1894, more than four months before the insolvent petition was filed. Within the following four months, but the exact dates are not found, the defendants furnished the insolvent about $1,000 worth of lumber for the house, and the same was paid for, agreeably to the agreement of the parties, by Brooks Bros., on the orders given the defendant by the insolvent. One order was for $500, drawn and paid the 1st of January, 1895, and the other for $400, drawn and paid the last of February, 1895. The contention is whether, under the insolvent law in regard to payments made in fraud of it, the assignee is entitled to recover this amount from the defendants. The section of the statute relating to this subject is 2141, which reads: "If a person being insolvent, or in contemplation of insolvency, within four months before the filing of the petition by or against him, with a view to give a preference to a creditor or person having a claim against him, or who is under a liability for him, * * * makes a payment either directly or indirectly, abso lutely or conditionally, the person receiving agreed there should be funds in Brooks Bros.' hands to answer them; otherwise, such orders would not operate as payments for the lumber. Nor was this the whole of the agreement. Brooks Bros. became party to it, and became bound to make the payments, if the orders were given, and funds remained in their hands. If, therefore, the defendants and the insolvent performed their respective parts of the agreement, Brooks Bros. became obligated to make the payments which they did make to these defendants. The defendants and insolvent, respectively, performed their parts of the agreement, and thereby Brooks Bros. became obligated to make the payments sought to be recovered, and such payments were made by Brooks Bros. in discharge of their obligation, and received by the defendants as coming from Brooks Bros. under the agreement. Under it the defendants' lumber, through the insolvent, as an intermediate party, was to and did go into the erection of the house for Brooks Bros., and thereby create a fund in their hands out of which Brooks Bros. were to and did pay the defendants in discharge of the obligation of themselves and of the insolvent. By the agreement, none of the insolvent's property then in existence was to be used to pay for the defendants' lumber, nor does it appear that the insolvent contracted a debt proved or provable against his estate in the erection of the house. The sale of this lumber was not on the credit of the insolvent, but on the credit of Brooks Bros., who were known to the defendants to be financially responsible. It is found "the lumber would not have been delivered but for the arrangements stated." Hence, on the facts found, the payments sought to be recovered were made by Brooks Bros. in discharge of the obligation assumed by them when the contract for the purchase of the lumber was entered into. This was more than four months before the insolvency proceedings were recommenced, and the contract was not in fraud of the laws relating to insolvency. It did not and could not reduce the insolvent's then means available for the payment of his then existing debts, but, if successful, might add thereto, at least to the extent the insolvent's personal labor and skill entered into the erection of the house. Such contract, although not in writing, was good between the parties (Noyes v. Brown, 33 Vt. 431), and operated at its date to assign equitably, at least to the defendants, so much of the contract price for the erection of the house as might be required to pay for the lumber. Blin v. Pierce, 20 Vt. 25. Equity regards and treats that as done which in good conscience ought to be done. 1 Pom. Eq. Jur. § 364. In Blin v. Pierce it is held that a debt equitably assigned in good faith more than four months before the commencement of proceedings in bankruptcy is protected to the assignee against such proceedings. Under that decision, if the debt from Brooks Bros. had been due absolutely, the agreement between these parties would have been a valid assignment at law of so much of the contract price as should be required to pay the defendants. The agreement operated to make the equitable assignment, and not the orders subsequently given by the insolvent. The lumber The lumber was sold and delivered on the strength of the agreement. The fund potentially existing by reason of the agreement in Brooks Bros.' hands, so far as necessary, was appropriated to the payment for the lumber. The orders were required to make certain the sum so appropriated. When the contract was made, the sum required to pay for the necessary lumber was not ascertained, and could not well be, only as the work on the house progressed. No particular form of words is necessary to make an equitable assignment. The intention of the parties to the agreement, gathered from the language used, read in the light of existing circumstances, controls, as in all agreements. Many cases and works of elementary writers might be cited illustrative of the doctrine of equitable assignments. The general principles governing such assignments are well expressed by Green, V. C., in the opinion in Bank of Harlem v. City of Bayonne, 48 N. J. Eq. 246, 21 Atl. 478, found in a note to McDaniel v. Maxwell (Or.) 28 Am. St. Rep. 745 (s. c. 27 Pac. 952). He says: "It was settled that an assignment, for a valuable consideration, of a sum of money due or to grow due on the performance of an existing contract, will, on notice thereof being given to the debtor, operate at once, or when the fund is created, as an equitable assignment of so much of the fund as is covered thereby, subject to all valid prior charges. Trustees, etc., v. Heath, 15 N. J. Eq. 22; Shannon v. Mayor, etc., 37 N. J. Eq. 123; Kirtland v. Moore, 40 N. J. Eq. 106; Brokaw v. Brokaw, 41 N. J. Eq. 304, 7 Atl. 414; Lauer v. Dunn, 115 N. Y. 405, 22 N. E. 270; 3 Pom. Eq. Jur. § 1280. While, properly speaking, an assignment cannot be made of a subject which does not exist,-such as a fund to become due on the future performance of a subsisting contract, yet equity, on the possible debt ripening into an enforceable specified money liability, treats the agreement as an assignment pro tanto of the fund, and by force thereof vests the equitable title to the money in the assignee. Field v. Mayor, etc., 6 N. Y. 179, 57 Am. Dec. 435, and note; Hall v. City of Buffalo, *40 N. Y. 193; Brill v. Tuttle, 81 N. Y. 454, 457; Brown v. Dunn, 50 N. J. Law, 111, 113, 11 Atl. 149; 3 Pom. Eq. Jur. §§ 1280, 1283, note 2. To impound the amount in the hands of the debtor, notice of the assignment must be given to him; but no particular form of notice is required. Any writing or act which clearly indicates that the assignor intends to make over the fund belonging to him amounts in equity to an as It signment of the funds. Bower v. Stone Co., 30 N. J. Eq. 171; Lyon v. Bower, Id. 340; Shannon v. Mayor, etc., 37 N. J. Eq. 123. On notice being given to the debtor, and the sum's being earned under the contract, the debtor becomes trustee, as quasi trustee, for the assignee, as to the amount assigned, subject to existing equities and valid prior charges thereon. Hall v. City of Buffalo, *40 N. Y. 193. From this it follows that neither payment to, nor a release or discharge by, the assignor, after notice of the assignment, can affect the rights of the assignee against the debtor. Jones v. Farrell, 1 De Gex & J. 208; Brill v. Tuttle, 81 N. Y. 454; Field v. Mayor, etc., 6 N. Y. 179, 57 Am. Dec. 435; Inhabitants of North Bergen v. Eager, 41 N. J. Law, 184; 2 Pom. Eq. Jur. § 704. It is evident from this statement of the incidents of an equitable assignment that acceptance by the debtor of the order or assignment is not, in equity, necessary to the validity as a transfer pro tanto of a fund in his hands. takes effect from the acts of the assignor and assignee, and the debtor, so far as the right to the fund is concerned. is but the instrument through whom the transfer is to be actually made. The debtor's acceptance or promise gives the assignee an action of law against him, not on the assignment, but on the promise. In equity it neither creates, increases, nor diminishes his liability to the assignee. 3 Pom. Eq. Jur. § 1280, and note 1." On these principles, as the lumber was delivered, from time to time, under the contract, not only was the fund in Brooks Bros.' hand increased to the extent of its value, but to that extent the fund became thereupon equitably the property of the defendants, and never the property of the insolvent. If the insolvent had refused or neglected to give the orders, equity would have seized so much of the fund in Brooks Bros.' hands as had thus been appropriated to payment for the lumber, and applied it to that end without the orders. The defendants, also, at law, could have enforced payment, on the promise of Brooks Bros. While the doctrine of equitable assignment has not been fully stated in any of our decided cases, so far as I am aware, it has been frequently applied, and always in harmony with the doctrine stated. Claflin v. Kimball, 52 Vt. 6; Hutchins v. Watts, 35 Vt. 360; Webster v. Moranville, 30 Vt. 701; Downer v. Marsh, 28 Vt. 558; Thayer v. Kelley, Id. 19; Spafford v. Page, 15 Vt. 490; Upton v. Moore, 44 Vt. 552; Bank v. Post, 65 Vt. 222, 25 Atl. 1093; Trow v. Braley, 56 Vt. 560; Wescott v. Potter, 40 Vt. 271; Strong v. Strong, 2 Aiken, 373; Lampson v. Fletcher, 1 Vt. 168. See, also, subject "Assignments," 2 Am. & Eng. Enc. Law (2d Ed.) 11, 1017, 1026, 1031, 1055, 1056, 1060. Judgment reversed, and judgment for defendants to recover their costs. SULLIVAN v. CITY OF LEWISTON. (Supreme Judicial Court of Maine. June 3, 1899.) PAUPERS-SUPPORT BY INHABITANT-NOTICE -ORDINANCE. The notice and request to overseers required by the statute to authorize an inhabitant of a town or city to recover expenses necessarily expended for the relief of a pauper in such town or city may, in the city of Lewiston, be given to the clerk or agent of the overseers; an ordinance of the city providing that its overseers may appoint "a clerk or agent" to act for them, under their direction and approval. (Official.) Exceptions from supreme judicial court, Androscoggin county. This was an action brought by Margaret Sullivan to recover from the city of Lewiston the sum of $821 for board, care, and nursing of her brother, Daniel McCarty, from November 3, 1891, to February 3, 1894, 821 days, at $1 per day. At the trial at the April term in Androscoggin county, however, the plaintiff admitted her inability to prove the required notice upon the overseers of the poor prior to May 31, 1892, and made no claim to recover from November 3, 1891, to that date. The verdict was for the plaintiff, damages being assessed at $413.87, and the defendant sought for a new trial on the customary grounds. Exceptions overruled. Argued before PETERS, C. J., and EMERY, HASKELL, WHITEHOUSE, WISWELL, and SAVAGE, JJ. Ralph W. Crockett, for plaintiff. John L. Reade, City Sol., for defendant. A PETERS, C. J. This is an action brought by one of its inhabitants against the city of Lewiston under this statutory provision: "Towns shall pay expenses necessarily incurred for the relief of paupers by an inhabitant not liable for their support, after notice and request to the overseers, until provision is made for them." Rev. St. c. 24, § 43. question arose at the trial whether notice to a clerk or agent of the overseers is a notice to the overseers themselves. We think so, in all cases where the municipality authorizes the overseers to employ a clerk or agent at its expense, and clothes him with such ministerial functions as did the city of Lewiston in the present case. Chapter 14 of the Revised Ordinances of the city (section 1) reads thus: "The mayor and aldermen shall constitute the overseers of the poor, and as such shall have the right to appoint a clerk or agent to act for, and under the direction and approval of, said overseers; and said clerk or agent shall receive such compensation for his services as the city council shall prescribe." Section 2 of the same chapter provides that such agent or clerk shall be sworn, keep a fair and intelligent record of the doings of the board, and perform generally such services as in the line of their duties they might impose on him. He was habitually in attendance at their office, and they were rarely there except at stated meetings. Their own convenience, as well as that of the public, was better served by communicating notices to them through one who was their agent as well as clerk. The verdict is manifestly too large. The plaintiff is entitled to compensation for her services in the care of her sick brother for. as nearly as may be reckoned, 92 days, although she performed similar services for a previous period for which she cannot recover for failure to give seasonable and necessary notice. A calculation based on the different votes of the city, and the admissions of the plaintiff, after deducting sums already received, will give the plaintiff $162.12, instead of $418.37, the amount of the verdict. Exceptions and motion overruled, if plaintiff remits as indicated; otherwise motion to be sustained. STATE v. BOARDMAN. (Supreme Judicial Court of Maine. June 3, 1899.) TOWN BY-LAW-APPROVAL-USE OF HIGHWAY -EVIDENCE. 1. An ordinance, or town by-law, which sets apart and designates a certain portion of the street or highway over and upon which may be transported on wheels limestone and other materials, where the load, exclusive of cart or vehicle, exceeds 2,500 pounds in weight, and prohibiting under a penalty all persons from using any other portion of the street for such purposes, is not required to be approved by the county commissioners or a justice of this court in order to become valid. 2. Such a by-law is not inconsistent with any law of the state. It does not deprive a person of any right; it simply regulates the exercise of it, and affords all travelers much better opportunities for travel than they would otherwise enjoy. 3. Whether such a by-law is reasonable and valid with reference to the way and locality in this case, held, that the portion of the street which may be used by heavily loaded vehicles must be reasonably suitable for the purpose, and the by-law will be valid or invalid, depending upon whether that portion of the way to which such vehicles are restricted is or is not reasonably suitable for the purpose. 4. Where the defendant charged with violating such a by-law offered evidence to prove that the portion of the street to which his heavily loaded team was restricted was absolutely impassable, held, that the evidence should have been admitted, because, if true, the by-law became unreasonable. 5. The question of the reasonableness of a bylaw is for the determination of the court. Certain facts are to be passed upon by the jury, but the standard upon the question of the reasonableness or otherwise of the by-law is established by the court. (Official.) Exceptions from supreme judicial court, Knox county. John Boardman was convicted of violating a town ordinance, and excepts. Exceptions sustained. This was a complaint for alleged violation of a by-law of the town of Rockport prohibit ing the use of a certain portion of Union street, in that town, by heavily loaded teams. The defendant was convicted before a trial justice, and appealed to this court sitting at nisi prius. In addition to other grounds of defense, which are stated in the opinion of the court, the defendant offered evidence to show "that the portion of the street covered by the bylaw, under which this complaint was made, was, at the time the offense was alleged to have been committed, and for years prior thereto had been, constantly used by the teamsters in hauling lime rock from the quarries near the Camden line to the kilns at Rockport, a distance of some half mile; that the constant hauling of such heavy loads of rock, averaging three or four tons per load, exclusive of weight of the team, over and upon said 15-foot space of reserved or specified part of the road, had cut deep ruts in that part of the road, and thrown up great ridges of earth, making it very difficult or well-nigh impossible to keep that portion of the road in suitable repair for the passage of ordinary teams at all times; that the defendant, carrying on the business of freighter or teamster, hauling freight between Camden and Rockland, used the kind of cart or team in common use for carriage of miscellaneous freight, to wit, a jigger or slung body, having the body of the cart less than eight inches from the ground when light, the body hung low for convenience in loading and unloading heavy freight; that owing to the rutted and ridged condition of this said 15-foot space he found it impossible during the greater part of the time to drive over it with his loaded jigger, the weight of a heavy load causing the body of the jigger to 'squat' or settle some two inches or more; that upon the day named in the complaint he drove over said Union street with his jigger loaded with a 7,000-pound anchor, the body of the jigger by reason of this weight being pressed down to within six inches of the level ground; that when he came up to the quarry road, where the quarry road comes up into the main road, as was his custom, he drove into that 15-foot limit; that he drove there a short distance before he found that the body was very likely to drag in a very short time; that the ruts were there ahead of him as far as he could see; he knew the minute the body dragged that he was stalled, and could not get out; that he could not yank it out by putting on horses; that it would break the jigger, and rather than that he got out of the ruts when he could." The defendant also offered evidence tending to show that the rutted and ridged condition of the said 15-foot strip of road, making it impassable for a loaded jigger, was its constant and normal condition during all that portion of the year when lime rock was hauled over that portion of the road on wheels, making it an absolute impossibility for him to comply with the terms of the by-law; and that, if compelled to comply strictly with its terms, his business as freighter must be either entirely given up, or so far injured as to result in serious financial loss to him. But the presiding justice excluded the evidence, on the ground that it was immaterial, it not being claimed that the condition of the highway within 15 feet of the westerly rail of the electric road was due to any sudden or unforeseen emergency. To the rulings of the presiding justice relating to the by-law, and excluding the evidence offered, the defendant, after a verdict of guilty, as directed by the court, took exceptions. Argued before EMERY, HASKELL, WHITEHOUSE, WISWELL, STROUT, and FOGLER, JJ. Washington R. Prescott, Co. Atty., for the State. M. T. Crawford, for defendant. WISWELL; J. Complaint for the alleged violation of the following ordinance or bylaw of the town of Rockport: "All of that portion of Union street in Rockport situated northerly and westerly and within fifteen (15) feet of the northerly and westerly rail of the Electric R. R. track, is hereby set apart and designated as the portion of said street over and upon which limestone may be transported on wheels, also all other material on wheels, where the load, exclusive of cart, wagon or vehicle, exceeds 2,500 pounds in weight; and all persons are prohibited from using any other portion of said street for the purposes aforesaid; and any person engaged in transporting limestone on wheels or other material of the weight aforesaid, on wheels, using any other portion of said street for such purpose, shall be fined not less than two nor more than five dollars for each offense, to be recovered, by complaint, to the use of the town of Rockport." The respondent attacks the validity of this by-law upon three grounds, namely: Because it had never been approved by the county commissioners of Knox county or by a justice of the supreme judicial court; because it is inconsistent with the laws of the state; and because it is unreasonable. Must such an ordinance be approved by the county commissioners or by a justice of this court? We think not. The legislature of this state has, by various enactments at different times, given to municipalities the power to adopt by-laws in regard to a large number of matters, all of which different enactments have been condensed into section 59, c. 3, of the present Revised Statutes. As that section now reads, municipalities are authorized to adopt such ordinances for the purposes named in 12 separate paragraphs. By paragraph 1, "for managing their prudential affairs," such bylaws must be approved by the county commissioners or by a judge of this court; but, in regard to by-laws in relation to the pur |