adultery. It was urged as a defense that the
plaintiff and her husband continued to live
together as husband and wife. "Whatever
may have been the measure or quality of the
remnant of conjugal affection and society
permitted to the plaintiff by the defendant,
as a matter of fact, and of law as well, the
plaintiff has been deprived of the conjugal
affection and society which the marriage
contract entitled her to enjoy and required
her husband to give; •
a valuable
right, absolutely sole in her and incapable
of division, has been injured." Foot v. Card,
58 Conn. 1, 18 Atl. 1027, 6 L. R. A. 829, 18
Am. St. Rep. 258.

The short answer to the contention now
under consideration is well stated by Rowell,
J., in Fratrini v. Caslini, 66 Vt. 273, 29
Atl. 252, 44 Am. St. Rep. 843:

"As to the claim that there is no such thing as a partial alienation of affections, it is enough to say that experience and observation show the fact to be far otherwise."

that, she has lost nothing which was of value to her. "If she is interfered with in her business transactions, and for that reason unable to earn what she otherwise would have earned, the damage is personal to her." Normile v. Company, 57 W. Va. 132, 49 S. E. 1030, 68 L. R. A. 901. But if she voluntarily performed services for her husband, the impairment of capacity "was his loss, and not that of his wife." Standen v. Railroad, 214 Pa. 189, 200, 63 Atl. 467, 6 Ann. Cas. 408.

"The wife has the same right to give to her husband her services either in the household or in his business as she had before the passage of the statute, and the same obligation rests upon her to discharge her duty to her husband. * There might be circumstances existing which would entitle the wife, in an action for damages, to recover for the value of her own services. * In other words, the husband is entitled to recover for the damage sustained on account of the loss of the services of the wife, and the value of her services, and loss sustained by reason of her inability to perform them, must necessarily depend on the character and value of the serv[6] The other argument chiefly relied upon ices which she is capable to perform, and is acis that if this action is sustained the defend-customed to perform for the husband." Citiant will be subjected to the payment of 23 N. E. 159, 7 L. R. A. 352. zens' St. Ry. Co. v. Twiname, 121 Ind. 375, double damages. Since she can sue and be sued "as if she were unmarried" (P. S. c. 176, § 2), it is argued that her damages will be measured without regard to her marital status. This involves a misconception of the true measure of her damages. She is to recover for injury to the rights given to her "as if she were unmarried"; but this does not mean that she has been divested of all marital duties and obligations, either legally or morally. The statute does not profess to create new rights, but to give to the wife the rights which her husband theretofore could claim through her or to give vitality to rights theretofore dormant because of her inability to sue. It does not undertake to transfer from husband to wife rights which were theretofore his in the strict sense; that is, rights for the violation of which he must sue at common law without joining her as plaintiff. Her services for others were of the class in which she might be joined as plaintiff. Weller v. Baker, 2 Wils. 414, 424. But her services for him were not. "If the battery, imprisonment, or malicious prosecution of the wife deprive the husband for any time of her company or assistance, or occasion him expense, he may and ought to sue separately for such consequential injuries." 1 Chit. Pl. 83. These latter rights remain in the husband. He is still liable for her support, and has the right to expect that she will render for him those services which practically every wife does render in a greater or less degree. So far as the evidence shows a probability that those services would have been performed but for the injury, the loss is the husband's. Filer v. Railroad, 49 N. Y. 47, 10 Am. Rep. 327.

Her recovery is limited because of the fact that the loss of that part of her capacity to

The rule as to her damages is not peculiar to the relation of husband and wife. It may apply to any person so circumstanced that there is no probability he or she would ever desire to use for profit the power lost or impaired. It may apply in the case of a Supman as well as in that of a woman. pose a father who is without means lives with his son, who provides the father with every luxury, and will probably continue to do so. The father's injury renders him incapable of hard manual labor. But for it, he could have worked as a ditcher and earned $2 a day. He is not entitled to substantial damages on this account, for the simple reason that this loss is to him no substantial injury. So it would be with a daughter who lived with wealthy parents and neither performed nor was likely to perform manual labor, because of her family relations. And so it must be with the wife who lives with her husband, cares for his household, and will continue to do so as long as the relation exists. True it is that she might abandon her family duties and earn money, as in the supposed cases the father or the daughter might. But the evidence not warranting a finding that they would have done so but for the accident, there is no proof of loss resulting to any one of them on this account.

[7] The rule under the statute creating liability for wrongfully causing death (Carney v. Railway, 72 N. H. 364, 57 Atl. 218; Imbriani v. Anderson, 76 N. H. 491, 84 Atl. 974) has no application to this class of cases. That statute in terms makes earning capacity the test, and in that respect differs from the common law. See Dillon v. Railway, 73 N. H. 367, 368, 62 Atl. 93.

The argument from the assumption that

[Ed. Note.-For other cases, see Venue, Cent tion is not here involved except incidentally Dig. § 17; Dec. Dig. ~8.]

Action by Erving Wolfe against the Bàlti- time for the commissioners to examine the more & Philadelphia Steamboat Company. Demurrer to declaration overruled.

Argued before RICE and HEISEL, JJ. Walter J. Willis, of Wilmington, for plaintiff. Thomas F. Bayard, of Wilmington, for defendant.

Action for damages for personal injuries.

Demurrer to declaration.

Mr. Bayard: The first count alleges that the accident occurred "in the Chesapeake Bay," without stating a fictitious venue in New Castle county, as required by section 4178, Code 1915. It does not appear whether it was in the jurisdiction of Maryland or Virginia. The second count sets out the place as in the state of Maryland, without setting up a fictitious venue, to wit, New Castle county.

The third count omits venue. The point of the demurrer is that the declaration in no part sets out the jurisdictional venue.

Mr. Willis, in reply, cited the following authorities in opposition to the contention of the defendant: Section 15, Rev. Code 1915, par. 4178; Chitty's Plead. 267-269; Hammer v. Pierce, 5 Har. 304; 40 Cyc. 105.

HEISEL, J. (delivering the opinion of the court). This is an action for personal injuries; the allegations of the narr. being that the tort was committed on the Chesapeake Bay within the state of Maryland, and no

where lays the venue in this county.

The defendant demurred to the declaration, and alleged as grounds of demurrer the failure to lay the venue in this county.

In actions of this character, in a court of general jurisdiction, the place is not material or traversable (1 Chit. on Pleading, 260, 268, 394; 1 Woolley, § 349), and therefore within the provisions of section 4178 of the Code,

which is as follows:

"It shall not be deemed necessary, in any declaration, or other pleading, to lay the venue in the county in which the action is brought, nor to set forth in any manner the place in which an act is alleged to have been done, unless when, from the nature of the case, the place may be material, or traversable."

The demurrer is overruled.

(91 Vt. 75)

WHITE v. WHITE.

(Supreme Court of Vermont. Lamoille. Dec. 9,

1916.)

1. EXECUTORS AND ADMINISTRATORS

225(7)

to

claim, where a petition to the probate court
for renewal of commission was granted with-
out any notice to the administrator or
any other person interested, the petition was
granted without "due hearing" and void, and
the whole proceedings before the commission
were coram non judice.

[Ed. Note.-For other cases, see Executors and

Administrators, Cent. Dig. § 800; Dec. Dig.

225(7).]

The probate court is a court of special and limited jurisdiction, having only statutory authority.

Dig. 88 469, 471-475, 478; Dec. Dig. 198.]
[Ed. Note.-For other cases, see Courts, Cent.
3. EXECUTORS AND ADMINISTRATORS 239-
REVIEW Of Order
COURT.

APPEAL TO COUNTY

The question of the validity of an order of the probate court granting petition for renewal of commission to receive and adjust claims against a decedent's estate was properly brought before the county court by appeal from the report of the commissioners.

Administrators, Cent. Dig. §§ 850-863; Dec. [Ed. Note.-For other cases, see Executors and Dig. 239.]

Exceptions from Lamoille County Court; Frank L. Fish, Judge.

Petition by Lizzie A. White to the probate Court for renewal of commission to receive and adjust claims against a decedent's estate. From the report of the commissioners, to the county court, which denied the vaGeorge E. White, administrator, appealed lidity of the order of the probate court grant

ing the petition, and petitioner brings exceptions, and the administrator moves to dismiss on an agreed statement of facts. Motion sustained, and judgment of the county court affirmed, to be certified to the probate

court.

Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.

F. G. Fleetwood and M. P. Maurice, both of Morrisville, and J. W. Redmond, of Newport, for appellant. V. A. Bullard, of Burlington, W. B. C. Stickney, of Rutland, and R. E. Brown, of Burlington, for appellee.

WATSON, J. Under the provisions of section 2821 of the Public Statutes, before the amendment mentioned below, on application of a creditor who had failed to present his claim to the commissioners to receive, examine, and adjust claims and demands presented against a deceased person, made within the time limited, the probate court, "for -CLAIM AGAINST DECEDENT'S ESTATE-OR- cause shown," could renew the commission DER OF PROBATE COURT GRANTING RENEWAL and allow a further time for the commissionOF COMMISSION-STATUTE "DUE HEARING." Under P. S. 2821, as amended by Acts ers to examine the claim. This section was 1908, No. 72, providing that, on application of amended by No. 72, Acts of 1908, in seva creditor who has failed to present his claim eral respects; but the only change material to the commissioners to receive, examine, and to the matters before us was the dropping adjust claims and demands presented against a deceased person, made within the time lim- out of the statute the words "for cause ited, the probate court, after due hearing, can shown," and inserting in lieu thereof the renew the commission and allow a further words "after due hearing had thereon”—

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Judgment affirmed, to be certified to the Windham County; Frank L. Fish, Chancelprobate court.

Action by A. Crosby Kennett and Herbert S. Mudgett against George A. Tudor and Ernest H. Tudor, and suit by George A. Tudor against A. Crosby Kennett and Herbert S. Mudgett. There was judgment for plaintiffs in the action, and defendants except and file Petition by Lizzie A. White to the probate motions that the judgment be reversed pro court for renewal of commission to receive and forma, and the cause remanded to give them adjust claims against a decedent's estate. From the report of the commissioners, George E. opportunity to plead discharges in bankruptWhite appealed to the county court, which de- cy; and from a decree dismissing the bill in nied the validity of the order of the probate the suit, plaintiff therein appeals, and moves court granting the petition, and petitioner brings that the decree be reversed pro forma and exceptions, and White moves to dismiss on an the cause remanded to give him opportunity agreed statement of facts. Motion sustained, and judgment of the county court affirmed, to be certified to the probate court.

1903, the bankrupt is not released therefrom by his discharge. This contention must be sustained. It is according to the holding of this court in Rowell v. Ricker, 79 Vt. 552, 66 Atl. 569, 18 Am. Bankr. Rep. 651, and to the holding of the Supreme Court of the United States in Friend v. Talcott, 228 U. S. 27, 33. Sup. Ct. 505, 57 L. Ed. 718. This ruling is equally conclusive that the liability of defendant Ernest H. Tudor is not released by his discharge in bankruptcy.

After this case was remanded, as before stated, on the question of damages, defendant George A. Tudor brought his bill in equity (it being the second of the two cases submitted) to reform the written contract of sale in connection with which the false and fraudulent representations were made by the Tudors, as established by the judgment in the action at law, alleging that by the contract in fact made, the Gibson and the Ware mortgages were assumed by Kennett and Mudgett in the purchase. Further prosecution of the suit at law was enjoined pending the suit

WATSON, J. The two causes named above | cy Act 1898, § 17a, cl. 2, as amended by act of were submitted together. The first is an action on the case for deceit in the sale of personal property, and it was held, when the case was here before (85 Vt. 190, 81 Atl. 633), that the deceit is the cause of action. This consisted of false and fraudulent representations made by the defendants that the property sold by them to the plaintiffs, for which they received a large sum of money in part payment of the purchase price, was free of incumbrance except a certain lien on part of it, given to the Lane Manufacturing Company, when in fact and to the knowledge of the defendants the property was subject to two mortgages previously given by defendant George A. Tudor, one to one Gibson, and the other to one Ware. The judgment for the plaintiffs was then affirmed, except that as to the question of damages it was reversed because, as the case then stood on both the declaration and the evidence, the plaintiffs were entitled to recover only nominal damages, it being neither alleged nor proved that they had paid anything by reason of the mortgages mentioned; whereas, if the plaintiffs should then pay those mortgages, and by leave of the court below amend their declaration accordingly, they would be entitled to recover the actual damages suffered. The assignee of the mortgages had brought suit against them for conversion of the property. On remand, the plaintiffs having paid the mortgages and the costs of the suit against them, they were permitted to amend their declaration by setting forth that fact therein. Their actual damages were then assessed by the court and judgment rendered for the sum found. The case was brought to this court on defendants' exceptions.

On February 7, 1916, each of the defendants filed a motion, stating that he had filed a petition in bankruptcy and had received his discharge as a bankrupt, from the District Court of the United States; that said judgment is a provable debt, was scheduled in said petition as due the plaintiffs, is barred by his discharge, and asking that the judgment be reversed pro forma and cause remanded to the county court, so as to give him an opportunity to plead his discharge in defense of the action.

in equity. The latter case being heard upon the merits, a decree was rendered dismissing the bill, with costs to the defendants. The case came to this court on the plaintiff's appeal, filed April 23, 1915. On February 17, 1916, the plaintiff filed a motion, in statement as to filing his petition and receiving his discharge in bankruptcy, similar to that filed by him in the action at law, and stating that in said petition he scheduled the debt or judgment of defendants Kennett and Mudgett, asking that the decree below be reversed pro forma and the cause remanded, so as to give him an opportunity to plead his discharge. The same as with the exceptions in the action at law, we understand the appeal is waived, and so treat it.

[2] The proceedings in bankruptcy were commenced and the discharge granted after the case in equity came into this court. The costs decreed to the defendants in the latter case constitute a provable debt under the bankruptcy law. This debt is not in any wise characterized by the fraud and deceit which entered into the contract of sale, and it is not a liability for obtaining property by false While the motions do not state that defend- pretenses or false representations. The deants waive their exceptions, we understand fendants assert in their brief that these costs that their counsel so stated in presenting the are not affected by the discharge, but they motions to the court, and we act accordingly. state no basis for such assertion, and give no [1] The motion of George A. Tudor states intimation of any ground upon which the that his petition in bankruptcy was filed Sep- debt falls within any class exempted from tember 8, 1915, and that he received his dis- the discharge. Defendants say that the court charge on, to wit, January 13, 1916. There should not exercise its discretion by permitis no material difference between the facts ting the plaintiff to file his plea or defense so there stated and the admission expressly after having involved the defendants in litimade in the plaintiff's brief in that respect. gation for nearly six years upon a claim The plaintiffs contend, however, that the debt which the court of chancery, by its decree, or claim involved in this suit is a liability for says is without merit. But these views seem obtaining property by false representations, to disregard the plain provision of the bank