original parties is admissible against the as- 321. Moar v. Wright, 1 Vt. 57. Bucklin v. signee ;-as, an admission by the assignor that Ward, 7 Vt. 195. Hodges v. Eastman, 12 Vt. the debt had been paid,-for, until such notice, 358. Goodnow v. Parsons, 36 Vt. 46. Allis v. the rights and interests of the debtor are in no Jewell, Ib. 547. 31 Vt. 565. Stiles v. Farrar, way affected by the assignment. Loomis v. 18 Vt. 444. Goss v. Barker, 22 Vt. 520. Loomis, 26 Vt. 198. 28. Where a note, not negotiable, had been 24. The defendant had contracted with one assigned for a valuable consideration, and upon S for a daily supply of milk for one year from notice thereof given by the assignee the maker April 1st, at a stipulated price per quart pay- promised to pay it to the assignee ;-Held, in able monthly. S so furnished the milk until an action thereon in the name of the payee, for Sept. 1st, when, without the knowledge of the the benefit of the assignee, that such promise defendant, he sold out his business to the plain- amounted to an acquiescence in the assignment tiff, who supplied the defendant through the and a waiver of all right, or claim, to interpose month of September, the defendant all the an offset to the note, although then existing while supposing that he was supplied by S against the payee. Stiles v. Farrar. under the special contract. Upon then being 29. The assignee of a judgment may maininformed of the facts, and upon the plaintiff's tain an action in his own name for neglect of refusing to carry out the contract of S for the an officer, after such assignment, to collect the rest of the year, the defendant refused to pay execution. McGregor v. Walden, 14 Vt. 450. the plaintiff for the milk furnished by him 31 Vt. 473.

during the month of September. In an action 30. So, for such neglect, or to pay over the of book account brought therefor ;-Held, that money collected, the assignee may maintain an the plaintiff was entitled to recover, but only action in the name of the party recovering the to the same extent as if the action had been by judgment; and the rule of damages is the same S after a like refusal on his part to carry out in both cases. Chase v. Plymouth, 20 Vt. 469. the special contract, and subject to a like de- Bradley v. Chamberlain, 31 Vt. 468. duction from the contract price, of the defend- 31. against assignee. An action for the ant's damages on account of such refusal. breach of a mere personal contract cannot be Smith v. Foster, 36 Vt. 705. brought against one to whom the obligor has 25. Form of notice. No particular cere-assigned his interest, unless the assignee has enmony or form of words is prescribed, or neces-tered into some new contract with the plaintiff sary, to constitute sufficient notice of the to perform it. Smith v. Kellogg, 46 Vt. 560. assignment of a demand, so as to protect it from trustee process against the assignor; but II. it must be such knowledge or information, communicated by the assignee or by his procurement, to the alleged trustee, as gives him fully to understand that he, the assignee, is the 32. It was agreed between the owner of owner of the demand. A notice of this char- certain personal property and certain of his acter may be sufficient, though the communication be merely casual and be made for no definite purpose. Dale v. Kimpton, 46 Vt. 76.

ASSIGNMENTS FOR BENEFIT OF CREDITORS.

1. At common law.

creditors, that the plaintiff, a third person who then had possession of the property, should keep it till a certain day and then sell it at auc26. A, the assignee of an unsettled claim of tion and apply the proceeds among such crediM against B, said to B: "If there is anything tors in a certain specified order. To this the due from you to M, I want you to pay it to me." plaintiff agreed, and employed one of such B replied that he had been requested to do the creditors to keep the property until the day of same thing by two others that day. A an- sale; but before that day the defendant, another swered: "I claim it." Held, that this did not creditor, attached and took away the property. fairly and reasonably give B to understand that Held, that the contract operated as a direct A had an assignment of the debt, but was assignment to the plaintiff for the benefit of the rather a request, and was not a sufficient notice particular creditors, and that the defendant was of the assignment to protect the fund from a liable to him in trespass for the attachment. trustee process for the debt of M. Cahoon v. Mason v. Hidden, 6 Vt. 600.

33. A general assignment by a debtor of all

Morgan, 38 Vt. 234. 27. Action by assignee. The transfer of his property, for the benefit of all his creditors, a chose in action not negotiable, whereby the is valid. Hall v. Denison, 17 Vt. 310. (Subassignee becomes the absolute owner, whether sequently prohibited by Act of 1843.) it be by purchase or gift, is a sufficient consid- 34. A general assignment for the benefit of eration to sustain a special promise by the creditors imports a consideration,-especially debtor to pay to such assignee, and an action where a nominal consideration is expressed, and may be sustained upon such promise in the the assignee executes a covenant for the faithname of the assignee. Smilie v. Stevens, 41 Vt. ful performance of the trust. Ib.

35. It is no objection to such an assignment goods under a valid assignment from his debtor. that there is in it a reservation of the surplus to He afterwards, for his better protection, attachthe assignor, after all his debts are paid. Ib. ed the goods and irregularly sold them on ex36. The assent of creditors to an assignment ecution. Held, as against other creditors of the in trust for their benefit, without conditions, assignor, that he had not thereby lost his right will be presumed; and where the condition under the assignment. Tilton v. Miller, 34 only affected the question of a preference-as, Vt. 576.

that creditors shall be preferred who shall within 44. Where a creditor accepted in writing the 90 days become parties to the assignment and provisions of an assignment by his debtor for release their claims, and after that the estate the benefit of creditors, by which he agreed to shall be distributed pro rata among all other accept the dividends which might accrue after a creditors--and no such preference had been faithful accounting by the assignee, and await claimed-Held, that the assent of creditors to the same ;-Held, that the agreement was on such final distribution would be presumed, and sufficient consideration, and operated as a temthe assignment was not invalidated by such porary bar to his right of action on his claim. condition of preference. Ib. Kingsbury v. Deming, 17 Vt. 367.

37. By a valid assignment in trust for the 45. But the acceptance of a dividend under benefit of creditors the relation of trustee and such an assignment, where there is nothing in cestui que trust is at once created between the the terms of the assignment binding the crediassignee and the creditors, so that the assignee tors to delay, does not preclude the creditor cannot revoke the instrument; and the assignee from suing at any time. Bank of Bellows cannot be held as trustee, under the trustee pro- Falls v. Deming, 17 Vt. 366. cess of attachment, where there is no surplus in his hands after paying the debts embraced in the assignment. Ib.

38. A reservation to the assignor of the residuum, in an assignment in trust for creditors, without providing for all the creditors, renders the assignment void at common law. Dana v. Lull, 17 Vt. 390. Goddard v. Hapgood, 25 Vt. 351. Therasson v. Hickok, 37 Vt. 454.

46. So, too, if, under such an assignment, there has been an unreasonable delay in settling the estate and perfecting the accounting, a creditor who assented to the assignment, and joined in the agreement to delay, may bring his suit. Foster v. Deming, 19 Vt. 313.

2. Under statutes.

47. Stat. 1843-General assignment. Under the Statute of 1843 (C. S. c. 64, s. 6)

39. Where a voluntary assignment of all one's property to a trustee for the benefit of a part of the creditors of the debtor is objected to, enacting that "all general assignments made because it leaves, expressly or by implication, a resulting trust to the debtor as to the surplus, it is no answer, that, in the end, it turned out that the property assigned was not sufficient to pay such preferred creditors. Dana v. Lull.

by debtors for the benefit of creditors shall be null and void as against the creditors of said debtors;"-Held, that to come within the statute the assignment must be of substantially all the debtor's property and in trust for the benefit of 40. Held, that a person not in debt may his creditors. If so, it is within the statute. make a voluntary conveyance of his property Noyes v. Hickok, 27 Vt. 36. Mussey v. Noyes, or a contract for his future support, which will 26 Vt. 462. Bishop v. Catlin, 28 Vt. 71. be valid as to subsequent creditors. Buchanan Therasson v. Hickok, 37 Vt. 454.

v. Clark, 28 Vt. 799.

48. Unless the assignment be made to

41. Fraud does not consist in transferring trustees in trust for creditors, it is not a "genproperty with a view to prefer one creditor to eral assignment" under the act, although it be another, but in transferring property with the of all the debtor's property. Peck v. Merrill, intent to prefer one's self to all his creditors. 26 Vt. 686. He may lawfully pay or secure one creditor to the exclusion of another. Gregory v. Harrington, 33 Vt. 241.

49. Where an assignment of an insolvent debtor conveyed to a trustee, by general description, all the property he owned or possessed 42. An assignment in trust for the benefit of in two towns named, and there was no allusion creditors, if made with intent to prevent a par- in the assignment to his ownership of any other ticular creditor from getting his pay from the property, the assignment being made, as exproperty assigned, or otherwise, except at the pressed, "to save a great sacrifice and waste of assignor's pleasure, was held to be void as to property";-Held, that the court would not such creditor, although the assignee was ig- intend that there was other property, and that norant of such purpose, and although the assignment, in other respects and in its results, aside from such intent, was valid. Stickney v. Crane, 35 Vt. 88.

this should be understood as a general assignment of all the debtor's estate. Dana v. Lull, 17 Vt. 390; and see Bishop v. Catlin, 28 V1. 71. 50. A deed of assignment by a debtor to as43. A party took and held possession of signees provided as follows: The assignees

"shall forthwith take possession, and faithfully, ments either at common law or under the statand as soon as practicable, and in the most utes, and that it was upon its face valid as against beneficial manner, dispose of and convert into the general creditors of the lessor. Stanley v. money the said real and personal estate, and Robbins, 36 Vt. 422. collect the said choses in action, and apply the 56. Law of place. A voluntary assignmoney therefrom arising (after paying expen- ment for the benefit of creditors, made accordses) in payment and discharge of the debts due ing to the laws of the domicile of the assignor, the assignees, and for which they are holden as will pass the personal property assigned wheresureties, and pay the surplus to the assignor, or ever situate, unless its operation is limited or to such person as he shall appoint;"-Held, (1), restrained by some local law or policy of the that this did not give the assignees power to State where the property is situate. sell on credit; (2), nor power to compound v. Paine, 32 Vt. 442.

Hanford

with creditors; (3), nor was the preference 57. A resident of New York made in that given unlawful, or a violation of the statute State an assignment of all his property for the against fraudulent conveyances; and (4), this benefit of his creditors. Among his property purporting on the face of it to be but a partial was an interest as partner in a stock of goods assignment, must be so regarded until the con- in a store in Vermont, which his partner, a resitrary be shown, and therefore not a violation of dent of Vermont, carried on. The assignment the statute of 1843 against general assignments. was valid by the laws of New York, but was Mussey v. Noyes, 26 Vt. 462.

51. Stat. 1852. This Statute of 1843 was repealed by implication by Stat. 1852, No. 18, relating to assignments. Farr v. Brackett, 30 Vt. 344.

not according to the Vermont Statute of 1852 (G. S. c. 67), relating to assignments. Held, that this statute did not apply to foreign assignments, and that the assignee, having taken possession of the stock of goods under the assign52. Held, by a majority, that the Act of 1852, ment, could hold them against the attaching No. 18, embraced other than general assign. and trusteeing creditors of the assignor. Ib. ments, and that an assignment of a portion of the 58. Ratification. An assignment void (i. debtor's property for the benefit of a part only of e. voidable) under the statute, may be remedied his creditors, not executed according to the pro- by a new assignment conforming to the statute, visions of that act, was inoperative as against an or by further declarations of trust, &c.. Merattaching creditor. Passumpsie Bank v. Strong, rill v. Englesby, 28 Vt. 150. 42 Vt. 295.

59. And it may be affirmed by the creditors assenting to it, so as to be binding not only upon themselves, but as against other creditors, if it be such a disposition of the effects as the debtor has a right to make. Ib.

53. In order that a conveyance should come within the statute regulating assignments (Stats. 1852 and 1855), there must be a trust created for the benefit of some person other than the assignee, or grantee. If made directly to a credi- 60. A general assignment in trust for the tor to secure a debt of the grantor, or a liability benefit of creditors, which was void as to the incurred for him, it does not come within the plaintiff not assenting thereto, was held good as statute. McGregor v. Chase, 37 Vt. 225. Noyes to every thing done under it down to the time v. Brown, 33 Vt. 442. that the plaintiff expressed his dissent by attaching a part of the estate assigned. Therasson v. Hickok, 37 Vt. 454.

54. Under the Assignment Act of 1852, No. 18, and the like Act of 1857, No. 11, the filing of a copy of the assignment, &c., in the clerk's 61. Where a creditor, in such case, brought office is a sufficient taking of possession by the as- a trustee process against the trustee named in signee, to prevent an attachment of the assigned the assignment, this was held a ratification both property. Vail v. Peck, 27 Vt. 764. Moore v. of the assignment itself and of any disposition Smith, 35 Vt. 644. of the property which the trustee had made under it. Bishop v. Catlin, 28 Vt. 71.

ASSOCIATIONS.

55. A father leased his farm, farming tools and stock to his son for three years, at a stipulated yearly rent to be paid to the lessor's brother, to be applied on the lessor's indebtedness to such brother, and the lessee to keep one cow for the lessor on the farm. The lessor owed debts to others than his brother and was insolvent, 1. Written articles. Persons associating and the lease was all of his attachable property, under written articles for the purpose of buildexcept an old horse worth perhaps $40. Aing a meeting house, substantially, but not creditor of the lessor attached the leased per- wholly, in accordance with the Act of Nov. 10, sonal property. In an action therefor by the 1814, in addition to that of Oct. 26, 1797, were lessce ;-Held, that the lease was not an assign-held to have become a corporation, although the ment in such sense as to subject it to the special acts were not referred to in the articles, nor requirements necessary to the validity of assign-did the articles allude to the creation of a cor

poration. Rogers v. Danby Universalist Ass'n., 8. By-laws. In 1862 F became a member 19 Vt. 187. of a voluntary charitable society, by the by-laws

2. Right of control. The right to control of which the members, by paying their regular and manage the affairs of a voluntary associa- assessments, were entitled to 25 cents per day tion rests with the majority of the individual during their sickness, and the widow of each members. Though they may make constitu- member dying should be paid 25 cents per day, tions and pass by-laws which they declare shall so long as she remained a widow, &c. ; but so not be altered except in a certain way, as by long as there should be $20 in the treasury the the concurrence of two-thirds, &c., yet these society should not reduce its aid to the sick. may be altered or abrogated by the same power The constitution provided for changes in the which created them: viz, a majority. Smith by-laws, and how such changes might be made. v. Nelson, 18 Vt. 511. In 1868 the society became incorporated, the

3. The right to the control of the property charter providing that the society might alter of an association for religious worship, and of or change its by-laws. The by-laws remained electing and employing a minister, is vested in unchanged until August, 1869, when the corthe corporate body, or in the majority of the poration adopted new by-laws providing that individual members. The relation of the min- such widow should receive 25 cents per day, ister chosen and ordained over such voluntary until she should get $200, in full of her right. society, agreeably to the usages of the denomi- F died in January, 1869. The plaintiff was his nation or church to which they profess to belong, widow, and had received the $200. In a suit cannot be dissolved against his will and that of to recover the 25 cents per day from the death a majority of the association, by the proceedings of F, less the $200 received;-Held, that the of any ecclesiastical tribunal whatever. Ib.

4. A majority vote of a church and society, acting as an existing organized association in a collective quasi corporate character, binds the minority—as to compromise a suit. Horton v. Baptist Church, &c., 34 Vt. 309.

society had the right so to amend its by-laws, and thus limit the claim,-this being by a general law applicable to all, and there being no suggestion of fraud, or that the regulation was not wise and salutary; that such change in the by-laws was assented to by F in becoming a 5. Where by the constitution of a religious member of the society, with such right of society, a vote laying a tax was required to be change expressed in the constitution. Fugure passed by two-thirds the members present ;-v. Mutual Society of St. Joseph, 46 Vt. 362. Held, that where the record simply stated that 9. Abandonment. The "Mount Lebanon it "was voted" to lay the tax, the court could not assume that it was by a two-thirds vote. Perrin v. Granger, 30 Vt. 595.

Royal Arch Chapter" of Free Masons, an incorporated association, in 1836 voted to and did dispose of all their real and personal prop6. Church Law. The canon law of the erty, being their hall, furniture and equipment, Roman Catholic Church has no force or au- and of their funds to the trustees of an academy, thority in this State, as such, and is not to be to use the interest, "and the principal to be reconsidered in determining the legal rights of par- turned when called for by this institution." ties except so far as recognized in or made part of some agreement under which those rights are derived. O'Hear v. De Goesbriand, 33 Vt. 593.

For 23 years the Chapter held no meetings, elected no officers, and did no act required by their laws and rules, and was without visible sign of existence. They then procured a new 7. We have no religious establishment, no charter from the "State Royal Arch Chapter," ecclesiastical law, or courts, established by any certified as a renewal of their original charter. authority. All their laws are wanting in this On a bill in equity by the members (embracing essential requisite to give them any authority, some new ones) of the present Chapter, claimthat they are not prescribed by the supreme ing as an association or society, and not in their power in the State. And though they may form individual and personal rights, to recover of constitutions, enact canons, laws or ordinances, said trustees the principal of said fund;-Held, establish courts, or make any decisions, decrees that the original association had become disor judgments, yet they can have only a volun- solved and ceased to exist, by abandonment tary obedience, and cannot affect any civil and non user, and that the new association had rights, immunities or contracts, or alter or dis- not legally succeeded to their rights or propsolve any relations, or obligations, arising from erty, and the bill was dismissed. Strickland v. contracts. When their proceedings are to be Prichard, 37 Vt. 324. examined by ordinary tribunals of justice, their 10. Contracts. Under a valid contract to power is a phantom, and they can receive no pay an annual sum to a religious society for the other consideration than the regulations of any support of the gospel ;-Held, that the party other voluntary associations, formed for trifling, could not release himself by giving notice of a or for grave and important purposes. Williams, change in his religious sentiments, and withC. J., in Smith v. Nelson, 18 Vt. 549. drawing himself from the church and society

and joining another, although by the articles of compact a member ceasing to pay ceased to be longer a member of the society. Cong. Society v. Swan, 2 Vt. 222.

11. The members of a joint stock company are liable, in solido, for the debts of the company. Cutler v. Thomas, 25 Vt. 73.

ASSUMPSIT.

1. When maintainable, and when not. The allowance of a claim by commissioners is matter of record;-assumpsit does not lie thereon. Woods v. Pettis, 4 Vt. 556.

2.

Where the time for the performance by 12. Suit. The treasurer of a voluntary as- the plaintiff of a contract under seal is enlarged sociation for charitable purposes, after its dis- by parol agreement of the parties, the plaintiff's solution, was, on bill brought by the remaining remedy for a breach is assumpsit, and not covmembers, decreed to account for funds of the enant, or other action counting upon the conassociation in his hands, to be disposed of ac- tract as under seal. Smith v. Smith, 45 Vt. cording to the original intention of the associa- 433. tion. Penfield v. Skinner, 11 Vt. 296.

3. Assumpsit will not lie against a sheriff, 13. The treasurer of an unincorporated re- or other officer, for a misfeasance, or non-feasligious association was allowed to maintain a ance, in the execution of his official duties. bill to recover, for the association, a legacy Walbridge v. Griswold, 1 D. Chip. 162;-nor given to it, he suing in behalf of the whole. against the sheriff upon the promise of his depAny members of the association might main- uty, expressed in his receipt given for an exetain such suit in behalf of the whole, if recog-cution, that he will execute it and return it nized by them. Smith v. Nelson, 18 Vt. 511. according to law. Tomlinson v. Wheeler, 1 Aik.

14. Proceedings of the presbytery and synod 194;;-nor against a tax collector for neglect to of the Associate [Scotch] Church, in relation to levy, collect and pay over taxes. Charleston v. the Associate congregation of Ryegate, consid- Stacy, 10 Vt. 562. ered and overhauled. Ib.

4. Where the defendant, without fraud, 15. Committee. The building committee, claimed to pass a turnpike gate, toll free, on the or agents, of a voluntary association for the ground of exemption or privilege, and on such building of a meeting house, of which they claim was permitted to pass;- Held, that an and the plaintiff are members, are not liable action of assumpsit did not lie to recover the to an action for services rendered or mater- tolls, although his claim of exemption, or privial furnished by the plaintiff in the building ilege, was not well founded. Center Turnpike of the house, he knowing the facts, although Co. v. Smith, 12 Vt. 212.

593.

325.

done at the request of the defendants, where 5. A postmaster, who receives a letter conit does not appear that the defendants made taining money which is lost through his lack an express promise to pay, or pledged their of proper care, though liable for his neglect in individual credit, or that funds of the asso- a proper action, is not liable in an action for ciation were in their hands with which to money had and received, unless he has put the make the payment. Abbott v. Cobb, 17 Vt. money to his own use. Danforth v. Grant, Cheeny v. Clark, 3 Vt. 431. 12 Vt. 14 Vt. 283. 23 Vt. 663. 6. Where the plaintiff purchased wool for 16. The fixing of the amount of the capital the defendants and was to have a share of the stock in the articles of association for the build-profits on the defendants' sales, the court say: ing of a meeting house, was held, under the cir- Whether the plaintiff's remedy may be assumpcumstances, not to limit the building committee sit, or must be account, depends upon whether as to cost of building. Rogers v. Danby Univ. he had any property in the wool, and so in the Society, 19 Vt. 187. The same, also, where the specific money for which it was sold ;-or expense was to be based on an estimate of the whether the form of the contract was only a number of pews, and the average price at which mode of determining his compensation for serthey should be sold. Sawyer v. Meth. Ep. Socy. vices. Mattocks v. Lyman, 16 Vt. 113. in Royalton, 18 Vt. 405.

7. Matters of tort. Assumpsit for goods

17. Sale of pews. In order to justify the sold does not lie where the goods were taken sale of a pew for non-payment of a tax or as-tortiously, there being no sale in form or fact. sessment, it is necessary, (1), that the shares be Winchell v. Noyes, 23 Vt. 303. defined; (2), that the assessments be upon the shares; (3), that the forfeiture or sale, as well as the assessment, be in conformity with the constitution and by-laws of the society. Perrin v. Granger, 33 Vt. 101. S. C. 30 Vt. 595. See MEETING HOUSE.

8. Where the defendant wrongfully sold a note belonging to the plaintiff ;-Held, that although the plaintiff could maintain trover, he might waive the tort and recover in assumpsit for money had and received. Wier v. Church, N. Chip. 95.

9. Where the plaintiff's property has been wrongfully taken or appropriated and convertled into money, he may waive the tort and re