the recent case of Stearns v. City of Barre, 73 Vt. 281, 50 Atl. 1086, 58 L. R. A. 240, 87 Am. St. Rep. 721, seems to demonstrate the invalidity of the act. But it is incorrect to say that there is no appeal from the action of the city, for the statute expressly provides for an appeal therefrom to the county court on every question involved therein. Hence the case is entirely unlike Stearns v. City of Barre, for there the statute left the extent of the taking to the final determination of the officers of the city making the condemnation, and for that reason, and that alone, it was in that respect held invalid. But here the statute leaves nothing to the final determination of the officers of the city making the condemnation, but gives a right on appeal to a rehearing before an impartial tribunal on every question in which the defendants are interested, and provides an adequate way in which that right can be exercised to the fullest extent in the regular course of procedure in such cases in the courts of justice. This is the due process of law guaranteed by the Constitution. State v. Stimpson, 78 Vt. 124, 62 Atl. 14, 1 L. R. A. (N. S.) 1153. And it makes no difference that the de fendants had to institute original proceed ings at their own expense in order to appeal, for that is but a reasonable regulation of the mode of exercising the right, and not a de nial nor an infringement of the right. It is like In re Marron, 60 Vt. 199, 12 Atl. 523, where we held that the statute requiring a respondent who appeals from the judgment of a justice in a criminal case to procure copies of appeal at his own expense if he would enter his appeal in the county court, where alone he can have a trial by a common-law jury of 12 men, is a reasonable regulation, not infringing the constitutional right of trial by jury. Judgment affirmed, and cause remanded. (82 Vt. 55) BARRE GRANITE & QUARRY CO. v. (Supreme Court of Vermont. Washington. Jan. 21, 1909.) 1. NOVATION (§ 3*)-NATURE AND REQUISITES. It is essential to a complete novation that the original debtor be discharged from his liability to his original creditor by contracting a new obligation in favor of the new creditor, by the order of the original. [Ed. Note. For other cases, see Novation, Cent. Dig. § 3; Dec. Dig. § 3.*] 2. NOVATION ( 1*)-NONNEGOTIABLE CHOSE IN ACTION-ASSIGNMENT AS SECURITY-PerSONS ENTITLED TO SUE. indorsed in favor of plaintiff. Plaintiff replied that if the original contractor failed to indorse the invoice in plaintiff's favor, the latter would expect defendant to remit to it just the same. After a part performance and part payment, defendant canceled the contract for monuments remaining to be done, and plaintiff assigned the contract and the amount due thereon. Held, that the transaction was an assignment of a nonnegotiable chose in action as security for a debt, and not a novation entitling plaintiff to sue in assumpsit for the unpaid price of a monument forwarded to defendant. [Ed. Note.-For other cases, see Novation, Cent. Dig. § 1; Dec. Dig. § 1.*1 Exceptions from Washington County Court; Alfred A. Hall, Judge. Action by the Barre Granite & Quarry Company against Alexander Fraser, on a contract by defendant for the purchase of monuments to be manufactured by plaintiff's assignor. There was a judgment for plaintiff, and defendant excepts. Reversed, and judgment rendered for defendant. Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ. M. M. Gordon and John W. Gordon, for plaintiff. Richard A. Hoar, for defendant. that in August, 1905, the defendant, Fraser, TYLER, J. It appears by the exceptions a wholesale dealer in granite in Mansfield, Ohio, made a written contract with one Jordan, who did business in Barre, in this state, under the name of the Sterling Granite Company, for the manufacture of 10 monuments at $100 apiece; that Jordan the next November assigned the contract to the plaintiff, the Barre Granite & Quarry Company, to secure it for stock and material furnished him for the construction of the monuments; that the ten notice of the assignment, which he acplaintiff thereupon gave the defendant writknowledged. In his letter to the plaintiff acknowledging notice he said: "Your favor of the 5th inst. is at hand inclosing two contracts one for #12766 and one for 10 stock monts. ordered Aug. 10th, which contracts have been assigned to you by the Sterling Granite Co. We have made a note on same that payment for these jobs when shipped shall be made to you, but we have also suggested to the Sterling Granite Co., whom we are writing by this mail, that when they make shipment they send their invoice in the regular way indorsed over in your favor. If they will carry out this suggestion it will simplify matters greatly and conform to our regular system. There is one point however that is not clear and on which we wish you would advise us, and that is, is the Sterling Granite Co. going to complete these orders or will they be built elsewhere? It makes no difference to us who ships the work or whom we pay for it so long as we receive what we order. We return herewith the contracts mentioned above." To this letter the plaintiff replied that the work would be cut by the Sterling Granite Com A third person contracted with defendant to manufacture certain monuments at a fixed price, and such person assigned the contract to plaintiff, to secure it for stock and material furnished for their construction. Plaintiff notified defendant of the assignment, which he acknowledged by letter, with a note, stating that payment would be made to plaintiff, and also suggesting that when shipment was made, the invoice should be sent by the original contractor, assignment of a nonnegotiable chose in action as collateral security for the payment of a debt, and was not a novation. The trial court erred in holding that the plaintiff could maintain the action in its name. Judgment reversed, and judgment for the defendant to recover his costs. pany according to the original contract, un- ly it is not. The transaction was in law an less it should become embarrassed in some way, in which case the plaintiff would probably see that the work was completed else where. It further said: "Your suggestion to invoice is alright, but should the Sterling Granite Company fail to indorse the invoice over in our favor we shall expect you to make remittance to us just the same." The correspondence shows that there were delays In the execution of the contract; that two monuments were finally completed and forwarded to the defendant by the Sterling Granite Company; that one was paid for by the defendant; that the other is the one now in controversy; that the defendant canceled the contract for the remaining eight; that in March, 1906, the plaintiff assigned the contract, and the amount due upon it, to Chas. H. More & Co. FINDLAY v. LONGE. (81 Vt. 523) (Supreme Court of Vermont. Washington. Jan. 14, 1909.) 1. MORTGAGES (§ 201*)-DUTY OF MORTGAGEE --FORECLOSURE-INSURANCE. A mortgagee owes no duty to the mortgagor to secure an insurance company's consent to a foreclosure in order that a policy, providing that foreclosure proceedings without consent of the insurance company should avoid it, should not have such effect. Dec. Dig. § 201.*1 2. JUSTICES OF THE PEACE (§ 128*) - Judg- A court of equity will not interfere with the final judgment of a justice, nor with the results which followed the execution and sale thereunder, where the judgment debtor with knowledge of the precise situation took no steps to secure relief in those proceedings. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. § 405; Dec. Dig. § 128.*] 3. MORTGAGES (8 497*) - FORECLOSURE DECREE RES JUDICATA. dicata against claims which the mortgagor might Cent. Dig. § 1473; Dec. Dig. § 497.*] Receiving the whole or part of a mortgage debt, directly or indirectly, after the time for redemption has expired is of itself sufficient to let the mortgagor in to redeem. The only question is whether there was a novation of parties so that the plaintiff was entitled to maintain this action of general assumpsit in its own name against the defendant to recover the price of the monument. It is essential to a complete novation that the original debtor be discharged from his liability to his original creditor by contracting a new obligation in favor of a new creditor, by the order of the original creditor. Heaton v. Angier, 7 N. H. 397, 28 Am. Dec. 353, illustrates the rule. In that case H. sold a wagon to A., who sold it to C., who promised to pay A. the price that A. had promised to pay, and H. agreed to take C. as his debtor. Held, that the agreement discharged A. from the debt, and that H. might recover the price of C. Tatlock v. Harris, 3 D. & E. 180, is cited in the opinion, where Buller, J., said: Suppose A. owes B. £100, and B. owes C. the same sum, and the three agree among them that A. shall pay C. that sum, B.'s debt is extinguished, and C. may recover the sum of A. In Hard v. Burton, 62 Vt. 314, 20 Atl. 269, the court quoted from Justinian, Inst. Lib. III, tit. 19, pl. 3, where he says that novation takes place only when the contracting parties expressly disclose that their object in making the new contract is to extinguish the old contract; that otherwise the old contract remains in force. Our own cases are in accordance with this rule. In Bacon v. Bates, 53 Vt. 30, W. and W., by a written order directed the defendant to pay the plaintiff whatever sum might be found due them on settlement. The defendant accepted the order by writing his name across it. Held, that upon the plaintiff receiving and presenting the order to the defendant and his accepting it there was a Appeal from Chancery Court, Washington novation, and that the plaintiff might main-County; John H. Watson, Chancellor. tain an action upon the order in his own Action by Alexander Findlay against Lewname. Trow v. Braley, 56 Vt. 560; Hard v. Burton, supra. See, also, Studebaker Bros. Mfg. Co. v. Endom, 51 La. Ann. 1263, 26 South. 90, 72 Am. St. Rep. 489, and notes. Is the present case within the rule? Clear [Ed. Note. For other cases, see Mortgages, Dec. Dig. § 608.*] 5. MORTGAGES (8 616*) - FORECLOSURE-BILL TO REDEEM. foreclosure, the bill did not allege that certain Where, in a suit to redeem from mortgage pasturing on the land by the mortgagee, and the harvesting of certain hay, rendered complainant unable to meet the payment due, under the decree, on April 25, 1902, nor that the mortgagee was unwilling to have the value of the pasturage and hay applied to such payment, nor that the harvesting was tortiously done, but in trover on account of the harvesting, the bill merely that complainant had sued the mortgagee was insufficient. [Ed. Note. For other cases, see Mortgages, Cent. Dig. § 1833; Dec. Dig. § 616.*] is Longe. From a chancery decree sustaining a demurrer to the bill and dismissing the same, complainant appeals. Affirmed. Argued before ROWELL, C. J., and TYLER, MUNSON, and HASELTON, JJ. Edward H. Deavitt, for appellant. J. P. that on March 3, 1899, he brought a suit Lamson, for appellee. HASELTON, J. This cause was heard upon demurrer to the bill. On hearing the demurrer was sustained, the bill was adjudged insufficient, and the same was dismissed. The orator appealed. By the allegations of the bill it is made to appear that April 25, 1898, for the sum of $500, the defendant sold and conveyed to the orator a farm in Marshfield, on which were three barns and no other buildings; that no cash payment was made, but that full purchase price was embraced in a note given by the orator to the defendant, and secured by a mortgage on the farm; that by the terms of the note the orator was to pay the first year's interest at the end of one year, the second year's interest at the end of two years, and that at the end of the third year he was to make his first payment on the principal of the note, such payment being $150; that the interest payment of $30, due at the end of one year-that is April 25, 1899was not paid; that thereupon, May 10, 1899, the defendant brought a petition of foreclosure, which was entered at the September term, 1899, of the court of chancery; that the orator appeared in said foreclosure suit by C. E. Woodard, Jr., solicitor; that the bill of foreclosure was taken as confessed, and that a decree of foreclosure was duly entered and enrolled; that by the terms of the decree the same was to become absolute unless the orator made a payment of interest and costs on or before September 7, 1900, another payment of interest on or before April 25, 1901, a payment which included a substantial part of the principal debt on or before April 25, 1902, and other payments thereafter which it is immaterial to specify; that September 6, 1900, the orator paid $58.01, the amount of the first payment under the decree, and that April 22, 1901, the orator paid $32.12, the amount of the second payment under the decree; that the third payment under the decree was to be $180, with some interest, which payment was required to be made by April 25, 1902; that before the decree became absolute by the nonpayment of the installment last mentioned, this bill was brought returnable at the September term, 1902, of the court of chancery. There was in the deed given by the defendant to the orator a provision that the latter should pay the taxes for the then current year, 1898. The bill avers that the defendant fraudulently procured the town clerk of Marshfield to insert this provision; that the provision was contrary to the agreement of the parties, and that the orator was, for a long time after the transaction of the sale and mortgage, ignorant of the fact that there was such a provision in the deed. The bill does not state for how long a time the orator was so ignorant. It appears from the bill that the taxes for the year 1898 were something less against the orator for the amount of such taxes making the sult returnable before a justice of the peace March 22, 1899. The bill alleges that on this writ there was attached, by the defendant's direction, personal property of the value of more than $200, being, as the defendant knew, all the personal property of the orator. The bill sets out that the parties appeared before the justice on the return day; that the case was continued to March 28, 1899, at which time the justice rendered judgment against the orator for $10.65 damages and $6.43 costs; that the taking out of execution was delayed, and that the costs of proceedings thereunder were purposely and willfully enhanced by the direction of the defendant, so that the costs of sale on the execution amounted to $34; that the proceedings in respect to the justice suit referred to were instituted and carried on as they were; that an excessive attachment was made, and that costs were enhanced, with the design and effect of preventing the orator from making his first interest payment of $30, which was due April 25, 1899, and that on May 10th following the defendant brought his petition for foreclosure, and had the same served on the orator. It appears that thereafter, before the term of court to which the foreclosure suit was returnable, the barns referred to, and the produce therein, all of which was insured for $475, were entirely destroyed by fire; that a provision of the insurance policy provided that it should be void if foreclosure proceedings were commenced without the written consent thereto of the company indorsed on the policy; that this foreclosure was commenced without such indorsement of consent, and without such consent, and that so, as the orator has since been advised, there was no insurance money to go to anybody. See Findlay v. Insurance Co., 74 Vt. 211, 52 Atl. 429, 93 Am. St. Rep. 885, a case brought upon the policy in question, and referred to in the orator's bill. The bill avers that the commencement by the defendant of foreclosure proceedings without the consent of the insurance company was a fraud upon the orator. Reference has now been made to the claimed grounds of relief existing when the decree of foreclosure was passed. The specific prayers of the bill relevant to the recitals thus far made are that the foreclosure decree of 1899 be vacated and set aside; that the orator's deed, taken April 25, 1898, be reformed, so that the provision that the orator pay the taxes for 1898 be excluded; that the defendant be required to account for the property sold under execution, on the judgment obtained against the orator for the amount of said taxes and costs; and that the amount of the mortgage debt be reduced $475, with some interest, because of the action of defendant in commencing foreclosure proceedings as he did. The bill gives no rea not made in the foreclosure proceedings, ex- time limited, and amounted to $30.12. The cept to say that through "some misunder-receiving of the whole or part of the mortstanding" between the orator and his solicit-gage debt, either directly or indirectly, after or, no answer was filed and the bill confess- the time for redemption has expired is of ited. No hint is given in the bill of the nature of the "misunderstanding," and the allegation with reference thereto goes for nothing as a ground for opening the decree and considering defenses available then, if ever. Indeed the brief of the orator expressly says that the statement as to the "misunderstand ing" is not relied on as a basis for opening the decree; but, if on any ground the decree could be opened, the matters considered would not avail the orator. A mortgagee owes no duty to a mortgagor in respect to securing an insurance company's consent to a foreclosure. As to the prayer for a reformation of the orator's deed by striking out the clause imposing upon the orator the obligation to pay the taxes for 1898, and as to the prayer dependent thereon, it is enough to say that a court of equity will not in the circumstances interfere with the final judgment of the justice, nor with the results which followed in the way of execution and sale thereunder. The orator does not claim that throughout those proceedings he was ignorant of the precise situation, and he must be content. St. Johnsbury v. Bagley, 48 Vt. 75; Brown v. Lamphear, 35 Vt. 252. The bill avers that the orator has been in continuous possession of the farm from the self sufficient to let in the mortgagor to re- time of its purchase by him to the bringing of this bill, but that during the year 1900 the defendant pastured certain cattle and horses on the farm, and that no account has been had with reference thereto. There is nothing in the bill inconsistent with the supposition that the defendant merely hired the orator to pasture the cattle and horses, and no claim that the defendant has not been at all times ready to account. The bill alleges that in July, 1900, the defendant entered upon the premises and cut and harvested hay which the orator had contracted to sell standing for $100, intending to apply said sum on the mortgage debt, that so the defendant deprived the orator of the benefit accruing under said contract, and that the orator has commenced (Supreme Court of Vermont. an action of trespass for his damages sustained by the action of the defendant in cutting and harvesting the hay as aforesaid. The allegations as to the cutting of hay, like those to the pasturing of stock, are extreme- A petition for a new trial for surprise and ly vague. Whatever was done, was done be-newly discovered evidence must be accompanied fore the decree expired. The first payment under the decree was to be made on or before September 7, 1900, and consisted of costs and interest amounting to $58.01. This the orator paid on the next to the last day allowed for payment. The second installment under the decree consisted of interest, with interest thereon, and was to be paid on or before April 25, 1901. This was paid three days before the expiration of the Decree affirmed and cause remanded. TAFT v. TAFT. Feb. 3, 1909.) (82 Vt. 64) General Term 1. NEW TRIAL (§ 147*)—PETITION-REQUISITES-PETITIONER'S AFFIDAVIT-AFFIDAVг. OF ATTORNEY. by the affidavit of the petitioner as required by the Supreme Court rule, and must also, in general, be supported by the affidavit of petitioner's attorney. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 303-305; Dec. Dig. § 147.*] 2. NEW TRIAL (§ 152*) — APPLICATION - MOTION TO DISMISS-AMENDMENT. A motion to dismiss a petition for a new trial because not accompanied by petitioner's affidavit nor supported by that of his attorney is in the nature of a plea in abatement, after the filing of which petitioner is not entitled to, leave to amend the petition. [Ed. Note. For other cases, see New Trial, Dec. Dig. § 152.*] Action between Russell W. Taft and Winona B. Taft. On motion to dismiss a petition for a new trial. Motion granted. V. A. Bullard, for plaintiff. C. G. Austin & Sons, for defendant. ROWELL, C. J. This is a petition for a new trial on the ground of surprise and newly discovered evidence. The petitionee moves to dismiss, for that, among other things, the petition is not accompanied with the affidavit of the petitioner, nor supported by the affidavit of his attorney. That the petition must be accompanied with the affidavit of the petitioner is required by a standing rule of this court, and said in Bradish v. State, 35 Vt. 452, and that it must, as a general rule, be supported by the affidavit of the petitioner's attorney, is held in Reynolds v. Hassam, 80 Vt. 501, 68 Atl. 645, and nothing appears to take the case out of that rule. ed, and the writ was held defective on motion to dismiss, and the defect not amend able; but the motion was overruled, nevertheless, because, being in the nature of a plea in abatement, the objection was waived by not being seasonably taken. So in State v. Perkins, 58 Vt. 722, 5 Atl. 894, it was held that the want of such a minute, though no part of the complaint itself, was a substantive defect, fatal to the proceedings, it being seasonably taken advantage of, and that the court was bound to dismiss the complaint. Brighton v. Kilsey, 77 Vt. 258, 59 Atl. 833, which was case for a penalty, is to the same effect. So a writ requiring a recognizance is abatable without one. Sisco v. Hurlburt, 17 Vt. 118. As the statute requires the judges of the Supreme Court to make all necessary rules for orderly practice therein, the rule above mentioned, made pursuant thereto, has in a proper sense the force of law; and, although the court can alter or abrogate it, yet, while it stands, it is binding, and cannot properly be dispensed with to suit the circumstances of a particular case, but must be applied to all cases that come within it. This is expressly so held in Thompson v. Hatch, 3 Pick. (Mass.) 512, and in Rio Grande Co. v. Gildersleeve, 174 U. S. 603, 19 Sup. Ct. 761, 43 L. Ed. 1103. In Nye v. Daniels, 75 Vt. 81, 53 Atl. 150, it was held that a postmaster could not be compelled to testify whether a certain registered letter was sent through his office, because a postal The petitioner moves for leave to amend; but the motion on the ground stated is in the nature of a plea in abatement, and goes only to impeach the petition as a process for the purpose of abating it, and not to its sufficiency as a pleading. Alexander v. School District, 62 Vt. 273, 19 Atl. 995; Marsh v. Graves, 68 Vt. 400, 35 Atl. 335. It is not, therefore, amendable, for statutory requisites in respect of the process it-regulation then in force forbade him to furself cannot be supplied in that way. This is the result of the cases in this state as said in Stevens v. Hewitt, 30 Vt. 262, refer- | ring to Bowman v. Stowell, 21 Vt. 309, where the general power of the court to allow amendments was pretty fully considered, and that result reached. This rule is well exemplified by the cases. Thus in Pollard v. Wilder, 17 Vt. 48, which was debt for a penalty, the magistrate signing the writ minuted thereon the time when it was exhibited to him instead of the time when it was signed by him, as the statute requir*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes nish the information, which regulation, it was held, had the force of law, as it was made pursuant to a statute authorizing the head of each department to prescribe regulations for the government of his department and the conduct of its officers and clerks, etc. The same thing is held in State v. Peet, 80 Vt. 449, 68 Atl. 661, 14 L. R. A. (N. S.) 677, in respect of a regulation made by the Secretary of Agriculture under the authority of an act of Congress. Motion sustained, and petition dismissed, with costs. |