*

But the precise question has been adjudged in this state, although without special consideration. In Foster v. Caldwell's Est., 18 Vt. 176, the declaration alleged, in substance, that the deceased sold the plaintiff a number of sheep by falsely and fraudulently warranting them to be sound when in fact they were diseased, and that the deceased deceived the plaintiff in the sale; but there was no allegation that the deceased knew the sheep were unsound. The verdict taken was in tort, and the court allowed it to be amended, after the panel was dismiss

tiff cannot enlarge the effect of the matters the false representation was fraudulently previously alleged. If the declaration con- made." It will be noticed that in the sectains a "scienter," it must be-where the ond of the two forms for charging deceit beplaintiff claims it to be in the allegation fore referred to (2 Chitty, 688), the first count that the defendant "falsely and fraudulently contains an allegation that the defendant warranted" the property. Words similar to knew that the representation was false, while those contained in this declaration are found the second count does not contain this, but in the form at page 279, which is unquestion- stands on the allegation that the defendant, ably a declaration in assumpsit. It is there "contriving and intending to deceive and alleged that the defendant, "contriving and defraud the said plaintiff in that behalf, then fraudulently intending to injure the said and there falsely and deceitfully pretended plaintiff, did not perform or regard his said to the said plaintiff," etc. It would seem promise and undertaking, but from these authorities that the words "falsethereby craftily and subtilely deceived and de-ly and fraudulently" as applied to a "prefrauded the said plaintiff in this," that the tense" or even to a "representation" are property was not as warranted. But it will given an effect to which they are not entitled be noticed that the words in the two forms when applied to a warranty. are used in different connections. In the assumpsit declaration the words quoted are applied to the breach of the defendant's promise, and not to the promise itself. In the declaration in tort the words "falsely and fraudulently" are applied directly to the act of warranting. This difference, however, is minimized by the fact that the undertaking is broken when assumed, so that in the first form the fraudulent intent is really laid at the time of the sale. The assumpsit form was considered in Shepherd v. Worthing, 1 Aiken, 188, and was held to contain no substantial allegation of fraud; but it was sug-ed, by striking out the words "is guilty" and gested that an averment that the defendant falsely and fraudulently warranted the property might be equivalent to the required scienter. In State v. Smith, 63 Vt. 201, 22 Atl. 604, the court examined an indictment for perjury in which the usual words "as he then and there well knew" were omitted, and it was held that the averment that the respondent testified to the matter "willfully and corruptly" sufficiently alleged that the statement was false to his knowledge. The averment that the defendant "falsely and fraudulently" warranted the property, given its natural construction, might seem to import more than a warranty false in fact. It may be urged with some force that "fraud-it may nevertheless be process issuing on a ulently" characterizes the defendant's act, and implies a knowledge of the falsity of his statement. But the construction long given to the form, in connection with the construction of other forms pertaining to the same subject, is not to be ignored in passing upon the question.

inserting the words "did assume and prom-
ise." In sustaining this action, it was said:
"There is no allegation of a scienter in the
declaration, and consequently there can be
no recovery
* for a deceit, notwith-
standing the declaration is, in form, in case
for a false warranty."

But the plaintiff contends, further, that no scienter is necessary, that the declaration is in tort, and that the question whether the process issues on a contract is to be determined, not by the origin of the claim, but by the form of the action. We have seen that the declaration is tort in form, and incapable of being joined with assumpsit. But

contract within the meaning of the statutory provision. The plaintiff's argument to the contrary is based largely upon what was said by the courts soon after the recognition of assumpsit as a proper remedy placed them in the position of sustaining assumpsit and case as concurrent remedies for the breach of a purely contract obligation. It was said by Lord Ellenborough in Williamson v. Allison, 2 East, 446, that the warranty is the thing which deceives the buyer who relies on it, and that it is sufficient to prove the

The case of Eibel v. Von Fell, 64 N. J. Law, 370, 48 Atl. 1117, should be considered in this connection. There the declaration alleged that the defendants sold certain premises to the plaintiff by "falsely and fraudulently representing" that the house warranty broken to establish the deceit. was new, when, in fact, it was old. The court held that this disclosed a cause of action, not for a false warranty as was claimed by the plaintiff, but for deceit, and said: “A good cause of action for deceit may be set out without a charge that the representation alleged to be false was known by de

It has sometimes been said in following this authority that the law implies deceit from the breach of the warranty. This view is clearly untenable-even when the undertaking of warranty is treated as a representation. "No misrepresentation is fraudulent at law, unless it is made with actual knowl

ces that the law must necessarily impute 3 Vt. 53, 21 Am. Dec. 571, that assumpsit such knowledge to the party at the time is supported by proof of the sale, a warwhen he makes it." 2 Pom. Eq. Jur. § 884. ranty, and the breach of it, and that nothThe law raises no presumption of knowl-ing more is required in tort. If the declaraedge of falsity from the mere fact that the tion in tort requires the same and only the representation was false. Southern Develop- same proof as the one in assumpsit, it is ment Co. v. Silva, 125 U. S. 247, 8 Sup. Ct. manifestly a declaration in tort only in name. 881, 31 L. Ed. 678. The declaration before us is so framed that The phraseology of our standard forms re- nothing more is required. It discloses a flects the indefiniteness of distinction which warranty false in fact, but not false to the prevailed in the formative period of the com- knowledge of the warrantor. If the plaintiff mon law, and this is true to some extent of the recovers upon this declaration, it will be solelanguage of commentators comparatively mod-ly by force of the contract. Proof of fraud ern. Blackstone, writing about 1758, after was not pertinent to the issue presented. speaking of the beating of another and the Commencement by trustee process is autaking of another's goods as trespasses, pro- thorized, and arrest or imprisonment is proceeds: "So, also, nonperformance of promises hibited, in actions founded on contract. It or undertakings is a trespass upon which an is held in regard to trustee process that the action of trespass on the case in assumpsit is form of the action governs (Elwell v. Martin, grounded." The subject may be briefly re- 32 Vt. 217), and it is argued that this holding viewed and further elucidated in the words of is decisive here. It is true that we have the note to Chandelor v. Lopus, 2 Smith's substantially the same expression in both Lead. Cas. 187 (Am. Ed.) 1847, where it is statutes, but it is used with reference to said in connection with a consideration of different subjects, and the nature of those Williamson v. Allison and kindred cases: subjects may justify, and even require, diff"Originally actions upon breaches of warran-erent constructions. It is the general scheme ty, as well as of all other promises, were substantially, as well as nominally, actions on the case, which went upon the ground of deceit, and set forth the undertaking of the defendant, and the consideration by which it was supported, for the purpose of establishing a fraud on his part, and a consequent legal injury to the plaintiff. But in modern times the distinction between assumpsit and case has become as well established as that between trespass and covenant, and it is not easy to see why it should be disregarded in the single instance of actions such as those we have just been considering." It may also be said that there is no plainer distinction in the law than that between breach of warranty and deceit; and the law no more implies deceit from a breach of warranty than it does from a breach of covenant for title or from the nonperformance of a contract of suretyship.

The difference between assumpsit and case as remedies for wrongs of this character was comparatively of little importance when our earliest cases upon the subject were decided. The subsequent abolishment of imprisonment for debt has introduced an element which cannot be ignored in reviewing the subject at this date. It is not necessary to consider further the construction, technicalities, and classification of the different forms employed, nor to anticipate the questions of practice that may arise in connection with their use. It is enough to say that if a plaintiff wishes to proceed by arrest, he must allege a case that entitles him to arrest. That right cannot be given by mere form or classification. The test must be the nature of the action as determined by its substance. It is said in Beeman v. Buck.

of our law that a man's property shall be held for the satisfaction of all his obligations, but that his body shall be held only for the satisfaction of obligations of a certain class. The trustee process is a method provided for reaching property held in certain forms, and whatever the scope given it by construction its operation will be in line with the general purpose of the law. The right of arrest pertains only to a limited class of obligations, and the right to exercise it in a given case must be determined by the line which separates that class from others. Any test or construction which carries the right beyond that line will be at vari ance with both the purpose and the letter of the law.

It is said that it does not appear that the defendant is a resident of any of the United States, and so within the exemption. But the writ sets up the defendant as of St. Johnsbury in the county of Caledonia, and this is a sufficient determination of resi dence for the purposes of defendant's motion.

Judgment reversed, motion to dismiss sustained, and writ dismissed.

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

can be lawfully recorded, the mortgagee must | town or organized plantation adjoining it, take and keep possession of the mortgaged prop erty in order to preserve his rights as against attaching creditors.

The mortgagor resided, at the time the The plaintiffs claimed title to the attached mortgage was given, in Askwith, which is an property under a chattel mortgage given to unorganized place in Somerset county, and them by said Munster September 6, 1906. is surrounded by other unorganized places. The mortgage was not recorded, for the rea- No town or organized plantation adjoins it, son that Munster, at the time the mortgage so that the statute requirement as to record was given, resided in Askwith, an unorgan- could not have been complied with. Did ized place in Somerset county, and which this fact relieve the mortgagees from the other is surrounded by other unorganized places, no requirement-the taking and keeping posses

sion of the mortgaged property? We think, cases another duty-the common-law duty not.

At common law, as a general rule, to make a transfer of personal property, whether absolute or conditional, valid as against third parties, delivery was required, and, in general also, a retention of the property by the vendee. Lanfear v. Sumner, 17 Mass. 110, 9 Am. Dec. 119; Goodenow v. Dunn, 21 Me. 86. The Legislature of Massachusetts by Pub. Laws 1832, p. 460, c. 157, § 1, provided for the first time for the registration of personal mortgages, and the court in Bullock v. Williams, 16 Pick. 33 (1834), construed this registration, when made, to be a substitute for the taking and keeping of possession. "The plain implication of the statute is that if possession is delivered to and retained by the mortgagee, or if the mortgage is recorded pursuant to the directions of the statute, it shall be valid against other persons," says Chief Justice Shaw in that case.

*

*

that existed before the statute was passedwhile in the case of the assignor no other burden is imposed. More in point is Grant v. Albee, 89 Me. 299, 36 Atl. 397. The rule as to the attachment of personal property is similar to that governing mortgages. At common law, in order to perfect and preserve an attachment of chattels, it was necessary to take and retain possession and control of the property or to have the power to take immediate control. Laughlin v. Reed, 89 Me. 226, 36 Atl. 131. A statute, originally passed in 1840 (Rev. St. 1841, c. 114, § 39), authorized the recording of attachments of bulky personal property, and with some amendments is still in force. In 1896 the then existing statute provided that "when the attachment is made in an unincorporated place" the copy of the officer's return of attachment "shall be filed and recorded in the office of the clerk of the oldest adjoining town in the county." Rev. St. 1883, c. 81, § 26. In the case last cited per

The court held that the record was not au

The Legislature of Maine in section 1, c. 390, p. 557, Pub. Laws 1839, re-enacted the Massa-sonal property was sought to be attached in chusetts statute in these terms: "No mortgage an unincorporated place with no town adjoinof personal property hereafter made ing, and the officer recorded his attachment shall be valid against any other person than in the oldest and nearest town, but failed to the parties thereto unless possession of the keep possession of the property. mortgaged property be delivered to, and retained by, the mortgagee, or unless the mortgage be recorded by the clerk of the city, town or plantation where the mortgagor resides." And our court has followed the construction placed upon the same statute by the court of Massachusetts. Smith v. Smith, 24 Me. 555; Morrill v. Sanford, 49 Me. 566; Hamlin v. Jerrard, 72 Me. 62.

thorized, and the attachment was void. If the plaintiffs' reasoning in the case at bar is correct, the impossibility of the record rendered unnecessary the taking of possession.

It is interesting to note that the statute as

Pub. Laws 1907, p. 111, c. 103.

See

to recording assignments has been amended to cover the omission existing at the time of Wade v. Bessey, 76 Me. 413 (1884). See Pub. The clause of the statute relating to posses-Laws 1897, p. 337, c. 301; Rev. St. c. 113, § 6; sion is simply declaratory of the common law, while that relating to record provides an equivalent therefor not previously authorized. The mortgagee is given his option either to take and keep possession or to record the mortgage. The two methods are distinct. One or the other is indispensable as against third parties. Impossibility of recording does not abrogate the necessity of possession any more than the impossibility of possession would annul the necessity of record. The purpose of registration was to give notice to creditors and subsequent purchasers, notice which before the statute was left to be inferred from delivery and possession (Sawyer v. Pennell, 19 Me. 167); and the mortgagee must employ one method or the other, it matters not in what section of the state the mortgagor may reside.

Plaintiffs rely upon Wade v. Bessey, 76 Me. 413, where the court held that the then existing statute requiring an assignment of wages to be recorded "in the town or plantation organized for any purpose, in which the assignor is commorant while earning such wages," did not apply to an assignor earning wages in an unorganized township. We hold the same here. If the facts do not meet the statute, the statute does not apply. But the

And the statute relating to recording attachments of personal property, existing at the time of Grant v. Albee, 89 Me. 299, 36 Atl. 397 (1896), has been similarly amended. Pub. Laws 1897, p. 404, c. 331; Rev. St. c. 83, $27. Moreover, by Pub. Laws 1850, p. 155, c. 180, recording of a personal mortgage was authorized in the nearest incorporated town in case the mortgagor resided in an unorganized place, which would have met the conditions in the case at bar; but by Pub. Laws 1854, p. 114, c. 103, this was changed "to the oldest adjoining town in the county." To change it back and make it harmonious with the statute governing assignments and attachments is for the Legislature and not for the court.

The burden is on the plaintiffs to prove their right of possession of the goods attached. This they could do by proving that "possession" of the goods had been "delivered to and retained by" them as mortgagees, or that the mortgage had been duly recorded. Citizens' National Bank v. Oldham, 142 Mass. 379, 8 N. E. 115. The latter could not be done, the former was not done, and the entry must therefore be:

Wm. T. Hall, Jr., for plaintiff. Staples & up and piled on the Bradley ground during the Glidden, for defendant.

We think the ruling was right. The plaintiff took no appeal. Giving the clerk in vaca-ing to the defendant corporation. Plea, the tion oral notice of his desire to appeal was not sufficient. An appeal from the taxation of costs is a part of a judicial proceeding, and becomes a part of the record. From the very nature of the thing it must necessarily be evidenced by a writing. Otherwise no

INHABITANTS OF BRADLEY v. PENOB-assessed on 6,000 cords of poplar wood in

It is not in dispute that the defendant is not an inhabitant of Bradley. It is an Old TAXATION (§ 274*) — PLACE OF TAXATION Town corporation. Nor is it disputed that PROPERTY EMPLOYED IN MECHANIC ARTS." it owned the pulp wood assessed, nor that The plaintiff town of Bradley assessed a the wood, on April 1, 1906, was in the plaintax for the year 1906 on certain pulp wood be-tiff town. But the plaintiff claims that the longing to the defendant. The defendant, an

Old Town corporation, on April 1, 1906, owned wood was "employed in the mechanic arts"