given it. We do not see how any other construction can obtain, without doing violence to the language of the act and the evident intention of Congress.

Plaintiff claims that the assignment to Mrs. Gove is invalid, as a fraud against creditors. This contention cannot be sustained. The policy is a combination life and endowment. When issued the amount insured was payable to Hussey, the insured, if he survived 20 years; but if not, then it was payable to his then wife, Lizzie. When she assigned her interest to Mr. Hussey, the policy then became payable to him, if he survived the endowment period, otherwise to his personal representatives or assigns. The policy authorized an assignment, and the company's promise to pay was to the parties named or assigns. The assignment to Mrs. Gove is not of the whole policy, as it might have been, but only of the right to the fund, if the assured shall die before the endowment period of 20 years. If he survives that, he receives the money, and Mrs. Gove gets nothing. The right thus assigned had no surrender value that remained to the assured for the endowment period; it had no value as to creditors, for it was absolutely exempt from their claims under the bankrupt act and the state statute. It was entirely competent for Mr. Hussey to make that assignment, practically a designation of a new beneficiaryhis creditors are not harmed and cannot complain; but after the assignment to Mrs. Gove, and filing with the company a copy, as required by it, she became the rightful and legal owner of the insurance, if Mr. Hussey shall not survive the endowment period. If he does, she takes nothing. Even as heir the result would be the same, or it could have been accomplished by will of Mr. Hussey.

The contract of the insurance company was, "at the end of the fifth and every subsequent fifth year from date of issue, the cash value specified in table of cash surrender values indorsed hereon will be paid

for this policy, provided it shall be in force under its original conditions, and is legally surrendered thereafter to the home office within thirty days from the close of such period." The date of the policy was March 1, 1893. The first surrender period was on March 1, 1898, but the policy was not then surrendered, and that right to surrender was lost. The next period will arrive March 1, 1903, but the bankruptcy occurred March 8, 1901. At that date the policy had no surrender value which the company was bound to recognize. The parties have agreed that, notwithstanding this, it has been the custom of the company to allow a surrender at any time. The surrender value referred to in section 70 of the bankrupt act refers only to the contract right of surrender, and not to the result of a negotiation or act of grace. If the company has been in the habit of accepting a surrender at other than the contract periods, it is not bound to continue the practice. What it may have done as an act of grace it is under no obligation to continue. It may at any time fall back upon its contract. Under that the policy had no surrender value at the date of the bankruptcy. In re Welling, 51 C. C. A. 151, 113 Fed. 192.

But, if this were not so, the transfer to Mrs. Gove of the insurance, in the event of the death of the assured before the expiration of the endowment period, invested her with the right of an assignee, and entitled her, under the terms of the policy, to receive the amount insured, if the death of the assured occurred before the end of the endowment period. All the cases hold that section 70 does not include policies payable to a wife or kindred of the assured, but only applies to policies payable to the assured or his personal representatives. After the assignment to Mrs. Gove, the policy, in the event of death within the endowment period, was payable to her, the daughter. The bill must be dismissed.

So ordered.

(75 Vt. 293)

STATE v. BISBEE.

(Supreme Court of Vermont. Addison. May

16, 1903.)

ADULTERY-INDICTMENT-SUFFICIENCY-
MOTION IN ARREST.

1. An indictment for adultery which fails to aver that the particeps criminis was a married woman is insufficient, under V. S. 5055.

2. An indictment for adultery which does not aver that the particeps criminis is an unmarried woman is not sufficient, under V. S. 5056, which declares that a married man and an unmarried woman who commit an act which would be adultery if such woman was married shall be guilty of adultery.

3. In a prosecution for adultery, where the indictment failed to aver whether the particeps criminis was a married or unmarried woman, and it was not implied in nor inferable from the findings of the facts alleged which she was, the defect in the indictment was available on motion in arrest of judgment.

Exceptions from Addison County Court; Haselton, Judge.

Don A. Bisbee was convicted of adultery, and brings exceptions. Reversed.

Argued before TYLER, MUNSON, START, WATSON, and STAFFORD, JJ.

F. L. Fish and W. H. Bliss, for plaintiff. James B. Donoway, State's Atty.

Aft

WATSON, J. The respondent was tried and convicted of the crime of adultery. er verdict and before judgment, he moved in arrest of judgment, for that, among other things, the indictment contains no allegations showing whether the particeps criminis was or was not an unmarried woman. Upon an exception to the overruling of this motion, the case is here.

To be guilty of the crime of adultery under the provisions of V. S. 5055, a man must have sexual connection with a married woman other than his wife; and, to constitute the crime under V. S. 5056, a married man must have sexual connection with an unmarried woman. The indictment is without any allegation that the particeps criminis was a married woman, hence it is insufficient under the former section; nor is it sufficient under the latter section, for it does not allege that she is an unmarried woman. This has been so held on demurrer to an indictment where the statutory provisions in these respects were the same as those contained in the sections above named. State v. Searle, 56 Vt. 516. The indictment omits to allege an essential and material fact to constitute a crime under either section of the statute, and it is not implied in nor inferable from the finding of the facts alleged whether the alleged particeps criminis was a married or an unmarried woman. Hence it cannot be said that the jury must have found that she was either, rather than the other. Therefore the defect

2. See Adultery, vol. 1, Cent. Dig. 15.

(Supreme Court of Vermont. Caledonia. May 16, 1903.)

CONSTITUTIONAL LAW-EQUAL PROTECTION OF LAWS UNLAWFUL DISCRIMINATION. 1. V. S. 4732, provides that a person who becomes a peddler without a license in force as provided in that chapter (198) shall be fined not more than $300 and not less than $50. By V. S. 4733, persons resident of the state who served as soldiers in the Civil War, and were honorably discharged, are exempt from the payment of a license tax under the provisions of that chapter. Held an unjust discrimination in favor of honorably discharged soldiers, and a violation of the fourteenth amendment, whereby no state can "deny to any person within its jurisdiction the equal protection of the laws."

Exceptions from Caledonia County Court; Watson, Judge.

Information against Albert Shedroi for peddling without a license. Demurrer overruled pro forma, and information adjudged suffi cient. The respondent brings exceptions. Reversed.

Argued before TYLER, MUNSON, START, WATSON, STAFFORD, and HASELTON, JJ.

M. G. Morse, State's Atty., for the State. G. C. Frye, for respondent.

WATSON, J. The respondent is informed against for becoming a peddler without a license in force, under the provisions of V. S. c. 198, as amended by No. 94, p. 66, Laws 1900, and the case is here upon demurrer to the information. It is contended that the law upon which this information is based is in conflict with the fourteenth amendment to the Constitution of the United States.

That the license fee required to be paid under the provisions of this chapter for the privilege of selling goods as a peddler is a tax upon the goods themselves was determined by this court in State v. Hoyt, 71 Vt. 59, 42 Atl. 973. In that case the law was held to discriminate unjustly against goods manufac tured in this state, and for that reason unconstitutional. Later the law was so amended as to avoid such discrimination. Laws 1900. p. 66, No. 94. V. S. 4732, provides that a person who becomes a peddler without a license in force as provided in that chapter (198) shall be fined not more than $300 and not less than $50. By V. S. 4733, persons resident of this state who served as soldiers in the war for the suppression of the Rebellion in the Southern States, and were honorably discharged, are exempt from the payment of a li cense tax under the provisions of that chapter. It is urged that herein the law unjustly discriminates in favor of such soldiers and against other persons, by reason of which

it is in violation of the fourteenth amendment, whereby no state can "deny to any person within its jurisdiction the equal protection of the laws." Can such an exemption be made by the Legislature without affecting the validity of the general provisions of that chapter? is the question. In Bell's Gap R. R. Co. v. Penn., 134 U. S. 232, 10 Sup. Ct. 533, 33 L. Ed. 892, speaking through Mr. Justice Bradley, the court said: "The provision of the fourteenth amendment that no state shall deny to any person within its jurisdiction the equal protection of the laws was not intended to prevent a state from adjusting its system of taxation in all proper and reasonable ways. It may, if it chooses, exempt certain classes of property from any taxation at all, such as churches, libraries, and the property of charitable institutions; it may impose different specific taxes upon different trades and professions, and may vary the rates of excise upon various products; it may tax real estate and personal property in a different manner; it may tax visible property only, and not tax securities for payment of money; it may allow deductions for indebtedness or not allow them. All such regulations, and those of like character, so long as they proceed within reasonable limits and general usage, are within the discretion of the state Legislature, or the people of the state in framing their Constitution. But clear and hostile discriminations against particular persons and classes, especially such as are of an unusual character, unknown to the practice of our governments, might be obnoxious to the constitutional prohibition. It would, however, be impossible and unwise to attempt to lay down any general rule or definition on the subject that would include all cases. They must be decided as they arise. We think we are safe in saying that the fourteenth amendment was not intended to compel a state to adopt any iron rule of equal taxation." And in Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923, the court, speaking through Mr. Justice Field, said this amendment, "in declaring that no state 'shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws,' undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one except as applied to the same pursuits by others under like circumstances; that no greater burdens should

be laid upon one than are laid upon others in the same calling and condition; and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses." And in Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, 18 Sup. Ct. 594, 42 L. Ed. 1037, it is said that the rule only prescribes that the "law have the attribute of equality of operation; and equality of operation does not mean indiscriminate operation on persons merely, as such, but on persons according to their relation." Such is the rule laid down by this court in State v. Hoyt, above cited. It was there held that the mere fact of classification is not enough to exempt the operation of the statute from the equality clause of the Constitution, but that it must also appear that the classification made is one based upon some reasonable ground, some difference which bears a just and proper relation to the attempted classification, and not a mere arbitrary selection.

By the law in question the Legislature has made a classification by placing persons resident of the state, who served as soldiers in the Civil War, and were honorably discharged, in one class, and all other citizens together in another class. All persons engaged in the business of peddling, whether they belong to the one class or the other, must have a license in force, or be subject to a penalty; but a license tax is required to be paid by persons in the latter class, while a license may be had by all in the former class without the payment of such tax. The classification, therefore, is one of taxation. From one class a tax on their goods authorized so to be sold is exacted for the privilege of doing business as a peddler, while the other class may carry on the same business in the same manner, sell the same kind and quality of goods in the same territory, without payment of such tax. Does this classification have the equality of indiscriminate operation on all persons licensed thus to do business according to their relations? Upon the answer to this question being in the affirmative or in the negative depends the validity or the invalidity of the law in question under the equality clause of the fourteenth amendment. Upon what basis does the attempted classification rest? There is no basis upon which it can rest except that persons in the one class served as soldiers in the Civil War, and were honorably discharged, and those of the other class did not so serve, or were not honorably discharged. This classification is dependent solely on a condition of things long since past, and not on a present situation or condition, nor on a substantial distinction having reference to the subject matter of the law enacted. The veterans were originally from no particular class, and when discharged from the army they returned to no particular class-they again became a part of the gen

eral mass of mankind, with the same constitutional rights, privileges, immunities, burdens, and responsibilities as other citizens similarly circumstanced in law in the same jurisdiction. Assuming that thus to have served as a soldier and to have received an honorable discharge may well merit reasonable considerations at the hands of the state in recognition of patriotism and valor in defense of a common country, yet such considerations cannot exceed those constitutional limits established for the welfare and protection of the whole; for equal protection of the laws requires "that all persons subjected to such legislation shall be treated alike under like circumstances and conditions, both in the privileges conferred and liabilities imposed." Magoun v. Bank, above cited. It cannot be said that service as a soldier in the Civil War and the receipt of an honorable discharge bear any relation to the business of a peddler as defined by the law under consideration. There is no difference between the present conditions and circumstances of such veterans and those of other citizens regarding the relations to the law or the attempted classification. In fact, according to their relations, they are of the same class, and any attempted classification between them is but a mere arbitrary selection, and based upon no reasonable grounds. In State v. Hoyt, referring to the equality clause, it is said that it is enough if there is no discrimination in favor of one against another of the same class; but that, when such discrimination exists, it impairs that equal right which all can claim in the enforcement of the laws. And the cases of State v. Harrington, 68 Vt. 623, 35 Atl. 515, 34 L. R. A. 100, and State v. Cadigan, 73 Vt. 245, 50 Atl. 1079, 57 L. R. A. 666, 87 Am. St. Rep. 714, are much in point. In the former the respondent was charged with selling and exposing for sale goods, wares, and merchandise as an "itinerant vendor," without a license therefor. It was contended upon demurrer to the information that the law upon which the prosecution was based discriminated between itinerant vendors and resident vendors, and between classes of itinerant vendors, and therefore it was in conflict with both the state and federal Constitutions. It was held that the state might require a license fee from persons in one occupation, and not from those in another, provided no discrimination was made between those of the same class. In the latter case, the respondent was charged with acting as agent of a partnership organized under the laws of the state of New York in selling certain municipal bonds here without the partnership having procured a license from the inspector of finance, etc., as required by the laws of this state. It was held that to discriminate between residents of our own state by denying to one class the privilege of transacting business without complying with conditions and exactions not

required of others, when the ground of classification is wholly fanciful and arbitrary, is a denial of the equal protection of the laws.

The constitutional right of a state legislature to discriminate in favor of persons who served in the army or navy of the United States in the Civil War has been before the court of last resort in several of the sister states. In New York the Constitution provides that appointments and promotions in the civil service "shall be made according to merit and fitness, to be ascertained so far as practicable by examinations which, so far as practicable, shall be competitive." In the matter of Keymer, 148 N. Y. 219, 42 N. E. 667, 35 L. R. A. 447, it was held that a provision of the civil service law in effect that as to honorably discharged soldiers and sailors of the Civil War competitive examinations should not be deemed practicable or necessary in cases where the compensation or other emolument of the office does not exceed $4 per day was in conflict with the Constitution. And a somewhat similar law in Massachusetts, purporting absolutely to give veterans particular and exclusive privileges different from those of the community in obtaining public office, was held to be not within the constitutional power of the Legislature. Brown v. Russell, 166 Mass. 14, 43 N. E. 1005, 32 L. R. A. 253, 55 Am. St. Rep. 357. In Iowa the Constitution provides that "all laws of a general nature shall have a uniform operation; the General Assembly shall not grant to any citizen or class of citizens privileges or immunities which, upon the same terms, shall equally belong to all citizens." A statute requiring peddlers to procure a license and to pay a license tax contained the provision that the section requiring the payment of the tax should not be held to apply "to persons who have served in the Union army or navy." In State v. Garbroski, 111 Iowa, 496, 82 N. W. 959, 56 L. R. A. 570, 82 Am. St. Rep. 524, it was contended that because of this immunity from the tax to peddlers who so served in the army or navy the law was void. In an extended opinion, reviewing many authorities, the court, saying that the attempted classification is based on no apparent necessity or difference in condition or circumstances that have any relation to the employment in which the veteran of the Civil War is authorized to engage without paying license, and that it savors more of philanthropy than of reasonable discrimination based upon real or apparent fitness for the work to be done, held the law unconstitutional.

We think it clear that the discrimination made in the law in question in favor of persons who served in the War of the Rebellion and were honorably discharged is without reasonable ground, and arbitrary, having no possible connection with the duties of the citizens as taxpayers, and their exemption from the payment of the tax therein re

quired of others exercising the same calling is pure favoritism, and a denial of the equal protection of the laws. It follows that section 4732 of the Vermont Statutes is unconstitutional, and without force, and that section 4733 of the Vermont Statutes, so far as it relates to the payment of license required by said chapter 198, is unconstitutional, and without force.

Pro forma judgment reversed, demurrer sustained, information adjudged insufficient and quashed, the respondent discharged and let go without day.

(75 Vt. 286)

DAVIS v. BOWERS GRANITE CO. (Supreme Court of Vermont. Caledonia. May

16, 1903.)

CONTRACTS-EXCUSE FOR NONPERFORMANCE MORTGAGE TO SECURE PERFORMANCE FORECLOSURE CONVERSION DAMAGES REMITTITUR-WRITTEN INSTRUMENT-CONSTRUCTION-QUESTIONS FOR COURT-BURDEN OF PROOF.

1. In assessing the damages caused by a conversion, it is proper to consider not only the value of the property at the time of the conversion, but also the time which has elapsed since it occurred.

2. The court can allow plaintiff to reduce his verdict to the sum declared for by a remittitur of any excess recovered, and then to enter judgment accordingly.

3. Whether or not the condition of a mortgage had been broken so as to warrant a sale of the property by the mortgagee depended on the terms of the condition and on the performance thereof by the mortgagor, and not on the facts surrounding the execution of the mortgage.

4. The construction of a written instrument is for the court, though it is drawn in language so plain as not to require the aid of extrinsic evidence.

5. Plaintiff mortgaged property to defendant to secure the performance of a contract to cut stones. The work was all completed by him except certain lettering, when defendant's manager inspected the stones, and refused to accept them. Held, that if the work, as far as completed, was in compliance with the contract, plaintiff was excused from further performance thereof, and his failure to do the lettering would not warrant foreclosure of the mortgage.

6. In trespass against a mortgagee for selling the property, the burden was on defendant to show that the condition of the mortgage had been breached so as to warrant the sale.

Exceptions from Caledonia County Court; Munson, Judge.

Action of trespass and trover by Chas. R. Davis against the Bowers Granite Company. Judgment for plaintiff, and defendant brings exceptions. Affirmed.

Argued before TYLER, START, WATSON, and HASELTON, JJ.

Taylor & Dutton, for plaintiff. Senter & Senter, for defendant.

WATSON, J. This action is trespass de bonis asportatis, with a count in trover for a horse and wagon. The ad damnum is $200.

2. See Damages, vol. 15, Cent. Dig. § 576.

The taking and conversion were on the 3d day of September, 1894. There was no evidence that the property was worth at the time of the conversion more than $185, nor to show any damages in excess of that sum. The jury returned a verdict for the plaintiff to recover $204.05. After verdict, and before judgment, the plaintiff was permitted to remit so much of the verdict as was in excess of $200. The defendant moved that the verdict be set aside on the ground that it was not warranted by the evidence, and that it was in contradiction of it. After the plaintiff filed his remittitur, the defendant's motion was overruled, and judgment rendered for the plaintiff for $200. To this the defendant excepted, and thereon he now contends that, as there was no evidence of any damages in excess of $185, the remittitur, if allowed, should have been for all in excess of that sum.

In assessing the damages, it was legiti mate for the jury to consider not only the value of the property at the time of the conversion, but also the time which had elapsed since the conversion, to determine the fair compensation to the plaintiff for his injury. Clement v. Spear, 56 Vt. 401. Under this rule it cannot be said that the damages found were not warranted by the evidence and circumstances of the case, but, this action being one sounding merely in damages, the plaintiff could recover no greater sum than he had declared for. It was within the province of the court to allow the plaintiff to reduce his verdict to that sum by a remittitur, and then to render judgment accordingly. Tarbell v. Tarbell, 60 Vt. 486, 15 Atl. 104; Crampton v. The Valido Marble Co., 60 Vt. 291, 15 Atl. 153, 1 L. R. A. 120.

The mortgage upon which the property in question was sold by the defendant's officer, together with the order referred to in the condition of the mortgage, designated as No. 8,186, sent by the defendant to the plaintiff under date of December 13, 1893, were introduced in evidence. The consideration of the mortgage was not in question. If the condition of the mortgage had been broken, and 30 days had elapsed since the breach, the defendant had a right to sell the property upon the mortgage as he did. If the condition had not been broken, and such time elapsed, he had no right thus to sell it. Whether the condition had in fact been broken depended upon the terms of the condition and the performance thereof by the plaintiff, and not upon the facts and circumstances resulting in the giving of the mortgage. Therefore, in excluding the evidence offered of such facts a circumstances, there was no error.

The plaintiff's evidence tended to show that the stock used by the plaintiff in cutting the four stones described in the condition of the mortgage was of the quality and kind specified in the contract, and that said stones were completed by him according to the terms of said contract, except the lettering and certain links to be cut on the die;