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given it. We do not see how any other con for this policy, provided it shall be in force struction can obtain, without doing violence under its original conditions, and is legally to the language of the act and the evident in surrendered thereafter to the home office tention of Congress.

within thirty days from the close of such pePlaintiff claims that the assignment to Mrs. riod." The date of the policy was March 1, Gove is invalid, as a fraud against creditors. 1893. The first surrender period was This contention cannot be sustained. The March 1, 1898, but the policy was not then policy is a combination life and endowment. surrendered, and that right to surrender was When issued the amount insured was pay lost. The next period will arrive March 1, able to Hussey, the insured, if he survived 1903, but the bankruptcy occurred March 8, 20 years; but if not, then it was payable to 1901. At that date the policy had no surhis then wife, Lizzie. When she assigned her render value which the company was bound interest to Mr. Hussey, the policy then be to recognize. The parties have agreed that, came payable to him, if he survived the en notwithstanding this, it has been the custom dowment period, otherwise to his personal rep of the company to allow a surrender at any resentatives or assigns. The policy author time. The surrender value referred to in ized an assignment, and the company's prom section 70 of the bankrupt act refers only to ise to pay was to the parties named or as the contract right of surrender, and not to signs. The assignment to Mrs. Gove is not the result of a negotiation or act of grace. of the whole policy, as it might have been, If the company has been in the habit of acbut only of the right to the fund, if the as cepting a surrender at other than the consured shall die before the endowment period tract periods, it is not bound to continue the of 20 years. If he survives that, he receives practice. What it may have done as an act the money, and Mrs. Gove gets nothing. of grace it is under no obligation to continue. The right thus assigned had no surrender It may at any time fall back upon its convalue-that remained to the assured for the tract. Under that the policy had no surrenendowment period; it had no value as to der value at the date of the bankruptcy. In creditors, for it was absolutely exempt from re Welling, 51 C. C. A. 151, 113 Fed. 192. their claims under the bankrupt act and the But, if this were not so, the transfer to state statute. It was entirely competent for

Mrs. Gove of the insurance, in the event of Mr. Hussey to make that assignment, prac

the death of the assured before the expiration tically a designation of a new beneficiary of the endowment period, invested her with his creditors are not harmed and cannot com the right of an assignee, and entitled her, plain; but after the assignment to Mrs. Gove, under the terms of the policy, to receive the and filing with the company a copy, as re

amount insured, if the death of the assured quired by it, she became the rightful and

occurred before the end of the endowment legal owner of the insurance, if Mr. Hussey | period. All the cases hold that section 70 shall not survive the endowment period. If does not include policies payable to a wife or he does, she takes nothing. Even as heir the

kindred of the assured, but only applies to result would be the same, or it could have policies payable to the assured or his personal been accomplished by will of Mr. Hussey. representatives. After the assignment to

The contract of the insurance company Mrs. Gove, the policy, in the event of death was, “at the end of the fifth and every sub

within the endowment period, was payable sequent fifth year from date of issue, the to her, the daughter. The bill must be discash value specified in table of cash sur

missed. render values indorsed bereon will be paid So ordered.

an

is not cured by the verdict. Baker v. Sher (75 Vt. 293)

man, 73 Vt. 26, 50 Atl. 633. STATE V. BISBEE.

Judgment reversed, judgment arrested, all (Supreme Court of Vermont. Addison. May

the proceedings are set aside, and judgment 16, 1903.)

that the respondent be acquitted. ADULTERY-INDICTMENT-SUFFICIENCYMOTION IN ARREST.

(75 Vt. 277) 1. An indictment for adultery which fails to

STATE V. SHEDROI. aver that the particeps criminis was a married (Supreme Court of Vermont. Caledonia. May woman is insuflicient, under V. S. 5055.

16, 1903.) 2. An indictment for adultery which does not & ver that the particeps criminis is an unmar

CONSTITUTIONAL LAW-EQUAL PROTECTION

OF LAWS-UNLAWFUL DISCRIMINATION. ried woman is not suflicient, under V. S. 5056, which declares that a married man and an un 1. V. S. 4732, provides that a person who married woman who commit act which becomes a peddler without a license in force as would be adultery if such woman was married provided in that chapter (198) shall be fined not shall be guilty of adultery.

more than $300 and not less than $50. By V. 3. In a prosecution for adultery, where the S. 4733, persons resident of the state who indictment failed to aver whether the particeps served as soldiers in the Civil War, and were criminis was a married or unmarried woman, honorably discharged, are exempt from the pay. and it was not implied in nor inferable from ment of a license tax under the provisions of the findings of the facts alleged which she was, that chapter. Held an unjust discrimination in the defect in the indictment was available on favor of honorably discharged soldiers, and a motion in arrest of judgment.

violation of the fourteenth amendment, where

by no state can "deny to any persou within its Exceptions from Addison County Court; jurisdiction the equal protection of the laws." Haselton, Judge.

Exceptions from Caledonia County Court; Don A. Bisbee was convicted of adultery,

Watson, Judge. and brings exceptions. Reversed.

Information against Albert Shedroi for pedArgued before TYLER, YUNSON, START, aling without a license. Demurrer overruled WATSON, and STAFFORD, JJ.

pro forma, and information adjudged suffi. F. L. Fish and W. H. Bliss, for plaintiff.

cient. The respondent brings exceptions. James B. Donoway, State's Atty.

Reversed.

Argued before TYLER, MUNSON, START,

WATSON, STAFFORD, and HASELTON, JJ. WATSON, J. The respondent was tried and convicted of the crime of adultery. Aft

M. G. Morse, State's Atty., for the State. er verdict and before judgment, he moved in

G. C. Frye, for respondent. arrest of judgment, for that, among other things, the indictment contains no allegations

WATSON, J. The respondent is informed showing whether the particeps criminis was

against for becoming a peddler without a li. or was not an unmarried woman. Upon an

cense in force, under the provisions of V, S. exception to the overruling of this motion,

c. 198, as amended by No. 94, p. 66, Laws the case is here,

1900, and the case is here upon demurrer to

the information. It is contended that the law To be guilty of the crime of adultery under the provisions of V. S. 5055, a man must

upon which this information is based is in have sexual connection with a married wo

conflict with the fourteenth amendment to man other than his wife; and, to constitute

the Constitution of the United States. the crime under V. S. 5056, a married man

That the license fee required to be paid unmust have sexual connection with an unmar

der the provisions of this chapter for the priv. ried woman. The indictment is without any

ilege of selling goods as a peddler is a tax allegation that the particeps criminis was a

upon the goods themselves was determined married woman, bence it is insufficient under

by this court in State v. Hoyt, 71 Vt. 59, 42 the former section; nor is it sufficient under

Atl. 973. In that case the law was held to the latter section, for it does not allege that

discriminate unjustly against goods manufac. she is an unmarried woman. This has been

tured in this state, and for that reason unconso held on demurrer to an indictment where

stitutional. Later the law was so amended the statutory provisions in these respects

as to avoid such discrimination. Laws 1900. were the same as those contained in the sec

p. 66, No. 94. V. S. 4732, provides that a pertions above named. State v. Searle, 56 Vt.

son who becomes a peddler without a license 616. The indictment omits to allege an es

in force as provided in that chapter (198) sential and material fact to constitute a crime

shall be fined not more than $300 and not less under either section of the statute, and it is

than $50. By V. S. 4733, persons resident of not implied in nor inferable from the finding

this state who served as soldiers in the war of the facts alleged whether the alleged parti

for the suppression of the Rebellion in the ceps criminis was a married or an unmarried

Southern States, and were honorably dischar. woman, Hence it cannot be said that the

ged, are exempt from the payment of a li jury must have found that she was either,

cense tax under the provisions of that chaprather than the other. Therefore the defect

ter. It is urged that herein the law un

justly discriminates in favor of such soldiers 92. See Adultery, vol. 1, Cent. Dig. I 16.

and against other persons, by reason of whicb

it is in violation of the fourteenth amendment, be laid upon one than are laid upon others whereby no state can "deny 40 any person in the same calling and condition; and that within its jurisdiction the equal protection of in the administration of criminal justice no the laws." Can such an exemption be made different or higher punishment should be imby the Legislature without affecting the valid- | posed upon one than such as is prescribed to ity of the general provisions of that chapter? | all for like offenses.” And in Magoun v. Illiis the question. In Bell's Gap R. R. Co. y. nois Trust & Savings Bank, 170 U, S. 283, Penn., 134 U. S. 232, 10 Sup. Ct. 533, 33 L. 18 Sup. Ct. 594, 42 L. Ed. 1037, it is said that Ed. 892, speaking through Mr. Justice Brad the rule only prescribes that the "law have ley, the court said: “The provision of the the attribute of equality of operation; and fourteerth amendment that no state shall equality of operation does not mean indisdeny to any person within its jurisdiction the criminate operation on persons merely, as equal protection of the laws was not intend such, but on persons according to their relaed to prevent a state from adjusting its sys- tion.” Such is the rule laid down by this tem of taxation in all proper and reasonable court in State v. Hoyt, above cited. It was ways. It may, if it chooses, exempt certain there held that the mere fact of classification classes of property from any taxation at all, is not enough to exempt the operation of the such as churches, libraries, and the property statute from the equality clause of the Conof charitable institutions; it may impose dif-stitution, but that it must also appear that ferent specific taxes upon different trades and the classification made is one based upon professions, and may vary the rates of excise some reasonable ground, some difference upon various products; it may tax real estate which bears a just and proper relation to the and personal property in a different manner; attempted classification, and not a mere arbi. it may tax visible property only, and not tax trary selection. securities for payment of money; it may al By the law in question the Legislature bas low deductions for indebtedness or not allow made a classification by placing persons resithem. All such regulations, and those of dent of the state, who served as soldiers in like character, so long as they proceed within the Civil War, and were honorably discharreasonable limits and general usage, are with ged, in one class, and all other citizens toin the discretion of the state Legislature, or gether in another class. All persons enthe people of the state in framing their Con gaged in the business of peddling, whether stitution. But clear and hostile discrimina they belong to the one class or the other, tions against particular persons and classes, must have a license in force, or be subject especially such as are of an unusual char to a penalty; but a license tax is required acter, unknown to the practice of our govern to be paid by persons in the latter class, ments, might be obnoxious to the constitu while a license may be bad by all in the tional prohibition. It would, however, be im former class without the payment of such possible and unwise to attempt to lay down

tax. The classification, therefore, is one of any general rule or definition on the subject taxation. From one class a tax on their that would include all cases. They must be goods authorized so to be sold is exacted for decided as they arise. We think we are safe the privilege of doing business as a peddler, in saying that the fourteenth amendment was while the other class may carry on the same not intended to compel a state to adopt any business in the same manner, sell the same iron rule of equal taxation.” And in Barbier kind and quality of goods in the same terri. v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 tory, without payment of such tax. Does L. Ed. 923, the court, speaking through Mr. this classification have the equality of indisJustice Field, said this amendment, “in de criminate operation on all persons licensed claring that no state 'shall deprive any per thus to do business according to their relason of life, liberty or property without due tions? Upon the answer to this question beprocess of law, nor deny to any person ing in the affirmative or in the negative dewithin its jurisdiction the equal protection pends the validity or the invalidity of the of the laws,' undoubtedly intended not only law in question under the equality clause that there should be no arbitrary depriva of the fourteenth amendment. Upon what tion of life or liberty, or arbitrary spolia basis does the attempted classification rest? tion of property, but that equal protection and There is no basis upon which it can rest security should be given to all under like except that persons in the one class served circumstances in the enjoyment of their per as soldiers in the Civil War, and were honorsonal and civil rights; that all persons should ably discharged, and those of the other class be equally entitled to pursue their happiness did not so serve, or were not honorably disand acquire and enjoy property; that they charged. This classification is dependent should have like access to the courts of the solely on a condition of things long since country for the protection of their persons past, and not on a present situation or conand property, the prevention and redress of dition, nor on a substantial distinction having wrongs, and the enforcement of contracts; reference to the subject matter of the law that no impediment should be interposed to enacted. The veterans were originally from the pursuits of any one except as applied to no particular class, and when discharged the same pursuits by others under like cir from the army they returned to no particular cumstances; that no greater burdens should class-they again became a part of the gen

eral mass of mankind, with the same con required of others, when the ground of classistitutional rights, privileges, immunities, bur fication is wholly fanciful and arbitrary, is dens, and responsibilities as other citizens a denial of the equal protection of the laws. similarly circumstanced in law in the same The constitutional right of a state legisjurisdiction. Assuming that thus to have lature to discriminate in favor of persons served as a soldier and to have received an who served in the army or navy of the honorable discharge may well merit reason. United States in the Civil War has been able considerations at the hands of the before the court of last resort in several of state in recognition of patriotism and valor the sister states. In New York the Conin defense of a common country, yet such stitution provides that appointments and proconsiderations cannot exceed those constitu- | motions in the civil service "shall be made tional limits established for the welfare and according to merit and fitness, to be ascerprotection of the whole; for equal protection tained so far as practicable by examinations of the laws requires "that all persons sub which, so far as practicable, shall be comjected to such legislation shall be treated petitive.” In the matter of Keymer, 148 N. alike under like circumstances and condi Y. 219, 42 N. E. 667, 35 L. R. A. 447, it was tions, both in the privileges conferred and held that a provision of the civil service law liabilities imposed.” Magoun v. Bank, above in effect that as to honorably discharged solcited. It cannot be said that service as a diers and sailors of the Civil War competisoldier in the Civil War and the receipt of tive examinations should not be deemed pracan honorable discharge bear any relation to ticable or necessary in cases where the comthe business of a peddler as defined by the pensation or other emolument of the office law under consideration. There is no differ does not exceed $4 per day was in conflict ence between the present conditions and cir with the Constitution. And a somewhat cumstances of such veterans and those of similar law in Massachusetts, purporting abother citizens regarding the relations to the solutely to give veterans particular and exlaw or the attempted classification. In fact, clusive privileges different from those of the according to their relations, they are of the community in obtaining public office, was same class, and any attempted classification held to be not within the constitutional power between them is but a mere arbitrary selec of the Legislature. Brown V. Russell, 166 tion, and based upon no reasonable grounds. Mass. 14, 43 V. E. 1005, 32 L. R. A. 253, 55 In State v. Hoyt, referring to the equality Am. St. Rep. 357. In Iowa the Constitution clause, it is said that it is enough if there is provides that “all laws of a general nature no discrimination in favor of one against an shall have a uniform operation; the General other of the same class; but that, when such Assembly shall not grant to any citizen or discrimination exists, it impairs that equal class of citizens privileges or immunities right which all can claim in the enforcement which, upon the same terms, shall equally beof the laws. And the cases of State v. Har long to all citizens.” A statute requiring rington, 68 Vt. 623, 35 Atl. 515, 34 L. R. A. peddlers to procure a license and to pay a 100, and State v. Cadigan, 73 Vt. 245, 50 license tax contained the provision that the Atl. 1079, 57 L. R. A. 666, 87 Am. St. Rep. section requiring the payment of the tax 714, are much in point. In the former the should not be held to apply “to persons who respondent was charged with selling and ex bave served in the Union army or navy." In posing for sale goods, wares, and merchan State v. Garbroski, 111 Iowa, '496, 82 N. W. dise as an "itinerant vendor," without a li 959, 56 L. R. A. 570, 82 Am. St. Rep. 524, cense therefor. It was contended upon de it was contended that because of this immurrer to the information that the law upon munity from the tax to peddlers who so which the prosecution was based discrim served in the army or navy the law was void. inated between itinerant vendors and resi. In an extended opinion, reviewing many audent vendors, and between classes of itiner thorities, the court, saying that the attempted ant vendors, and therefore it was in conflict classification is based on no apparent neceswith both the state and federal Constitu sity or difference in condition or circumtions. It was held that the state might re stances that have any relation to the emquire a license fee from persons in one oc ployment in which the veteran of the Civil cupation, and not from those in another, War is authorized to engage without paying provided no discrimination was made be license, and that it savors more of philan. tween those of the same class. In the latter thropy than of reasonable discrimination case, the respondent was charged with act based upon real or apparent fitness for the ing as agent of a partnership organized un work to be done, held the law unconstituder the laws of the state of New York in tional. selling certain municipal bonds here without We think it clear that the discrimination the partnership having procured a license made in the law in question in favor of perfrom the inspector of finance, etc., as re sons who served in the War of the Rebellion quired by the laws of this state.

It was

and were honorably discharged is without held that to discriminate between residents reasonable ground, and arbitrary, having no of our own state by denying to one class the possible connection with the duties of the privilege of transacting business without citizens as taxpayers, and their exemption complying with conditions and exactions not from the payment of the tax therein re.

quired of others exercising the same calling The taking and conversion were on the 3d is pure favoritism, and a denial of the equal day of September, 1894. There was no eviprotection of the laws. It follows that sec dence that the property was worth at the tion 4732 of the Vermont Statutes is uncon time of the conversion more than $185, nor stitutional, and without force, and that sec to show any damages in excess of that sum. tion 4733 of the Vermont Statutes, so far as The jury returned a verdict for the plaintiff it relates to the payment of license required to recover $204.05. After verdict, and before by said chapter 198, is unconstitutional, and judgment, the plaintiff was permitted to rewithout force.

mit so much of the verdict as was in excess of Pro forma judgment reversed, demurrer $200. The defendant moved that the verdict sustained, information adjudged insufficient be set aside on the ground that it was not and quashed, the respondent discharged and warranted by the evidence, and that it was let go without day.

in contradiction of it. After the plaintiff filed his remittitur, the defendant's motion was

overruled, and judgment rendered for the (75 Vt. 286)

plaintiff for $200. To this the defendant exDAVIS v. BOWERS GRANITE CO. cepted, and thereon he now contends that, as (Supreme Court of Vermont. Caledonia. May

there was no evidence of any damages in ex16, 1903.)

cess of $185, the remittitur, if allowed, should

have been for all in excess of that sum. CONTRACTS-EXCUSE FOR NONPERFORMANCE MORTGAGE TO SECURE PERFORMANCE

In assessing the damages, it was legitiFORECLOSURE - CONVERSION - DAMAGES mate for the jury to consider not only the REMITTITUR-WRITTEN INSTRUMENT-CONSTRUCTION-QUESTIONS FOR COURT-BUR

value of the property at the time of the conDEN OF PROOF.

version, but also the time which had elapsed 1. In assessing the damages caused by a con since the conversion, to determine the fair version, it is proper to consider not only the

compensation to the plaintiff for his injury. value of the property at the time of the conversion, but also the time which has elapsed since

Clement v. Spear, 56 Vt. 401. Under this it occurred.

rule it cannot be said that the damages found 2. The court can allow plaintiff to reduce his were not warranted by the evidence and cirverdict to the sum declared for by a remittitur

cumstances of the case, but, this action being of any excess recovered, and then to enter judgment accordingly.

one sounding merely in damages, the plaintiff 3. Whether or not the condition of a mort could recover no greater sum than he had gage had been broken so as to warrant a sale declared for. It was within the province of of the property by the mortgagee depended on the ternis of the condition and on the perform

the court to allow the plaintiff to reduce his ance thereof by the mortgagor, and not on the

verdict to that sum by a remittitur, and then facts surrounding the execution of the mort to render judgment accordingly. Tarbell v. gage.

Tarbell, 60 Vt. 486, 15 Atl. 104; Crampton v. 4. The construction of a written instrument is for the court, though it is drawn in lan

The Valido Marble Co., 60 Vt. 291, 15 Atl. guage so plain as not to require the aid of 153, 1 L. R. A. 120. extrinsic evidence.

The mortgage upon which the property in 5. Plaintiff mortgaged property to defendant

question was sold by the defendant's officer, to secure the performance of a contract to cut stones. The work was all completed by him

together with the order referred to in the except certain lettering, when defendant's man condition of the mortgage, designated as No. Ager inspected the stones, and refused to ac

8,186, sent by the defendant to the plaintiff cept them. Held, that if the work, as far as completed, was in compliance with the con

under date of December 13, 1893, were introtract, plaintiff was excused from further per

duced in evidence. The consideration of the formance thereof, and his failure to do the let mortgage was not in question. If the conditering would not warrant foreclosure of the

tion of the mortgage had been broken, and mortgage.

6. In trespass against a mortgagee for selling 30 days had elapsed since the breach, the de. the property, the burden was on defendant to fendant had a right to sell the property upon show that the condition of the mortgage had the mortgage as he did. If the condition had been breached so as to warrant the sale.

not been broken, and such time elapsed, he Exceptions from Caledonia County Court; had no right thus to sell it. Whether the Munson, Judge.

condition had in fact been broken depended Action of trespass and trover by Chas. R. upon the terms of the condition and the perDavis against the Bowers Granite Company. formance thereof by the plaintiff, and not upJudgment for plaintiff, and defendant brings on the facts and circumstances resulting in exceptions. Affirmed.

the giving of the mortgage. Therefore, in exArgued before TYLER, START, WATSON, cluding the evidence offered of such facts ai.. and HASELTON, JJ.

circumstances, there was no error. Taylor & Dutton, for plaintiff. Senter &

The plaintiff's evidence tended to show Senter, for defendant,

that the stock used by the plaintiff in cut

ting the four stones described in the condiWATSON, J. This action is trespass de

tion of the mortgage was of the quality and bonis asportatis, with a count in trover for a

kind specified in the contract, and that said horse and wagon. The ad damnum is $200.

stones were completed by him according to

the terms of said contract, except the letterT 2. See Damages, vol. 15, Cent. Dig. $ 576.

ing and certain links to be cut on the die;

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