HERALD & GLOBE ASS'N v. CLERE 4, 1912.) 1. CHATTEL MORTGAGES (§ 63*)—REQUISITES -AFFIDAVIT ACCOMPANYING INSTRUMENT. The affidavit accompanying a chattel mortgage must conform to the purpose of the mortgage and verify the truth, justice, and validity of the debt or other liability sought to be secured thereby. [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 125-135; Dec. Dig. § 63.*] 2. CHATTEL MORTGAGES (8 63*)-REQUISITES "IMME Thereupon she was brought into court on a bench warrant. Her appearance in court clearly indicated that she had been drinking, and that she was then more or less under (Supreme Court of Vermont. Rutland. July the influence of liquor. In arguing the case to the jury, one of defendant's attorneys, while discussing the claimed gift of the note to the defendant, referred to the condition of Mrs. Lyons as the jury had observed her upon the witness stand, and said to the jury in substance that, in view of what they had seen of Mrs. Lyons on the stand and the interest which the evidence showed the defendant had exhibited in his mother's affairs and the attention he had shown her, they might read between the lines that the intestate, with a mother's foresight, thought it wiser that the property be left in his hands, and that the daughter would thus be better cared for and protected. One witness testified that the intestate said that Job had been very good to her, and that Mrs. Lyons had been a source of much trouble to her. But our attention has been called to no evidence tending to show the nature of the daughter's conduct, troublous to the mother. One's imagination in this respect leads one in various directions, and, it cannot be said that her mere condition at the trial, three years after the time when upon defendant's evidence the gift was made, fairly affords an inference warranting the argument made. This being so, the suggestion of plaintiff's attorney in reply was not ground of exception. McMullin v. Erwin, 69 Vt. 338, 38 Atl. 62; State v. Slaman, 73 Vt. 212, 50 Atl. 1097, 87 Am. St. Rep. 726. Defendant's assignor, to assist a clothing house to settle with its creditors, including defendant, took a mortgage on its stock for $1,700, specified in a note, and as a part of the same "transaction," upon execution and delivery of the note and mortgage, delivered to the mortgagor's attorney his signed personal checks, payable to the creditors, part of which were filled out and mailed the same day and the rest within a few days as soon as the proper amounts were ascertained and paid by him on presentment; the amount so paid being $1,650, exceeded the sum for which the mortgage note which, with a previous debt due the mortgagee, was given. The affidavit accompanying the mortgage was that it was made to secure the debt specified in the condition thereof, and for no other purpose, and that the same was a just debt, honestly due and owing from the mortgagor to the mortgagee. Held, in a suit by an attaching creditor of the mortgagor to enjoin foreclosure of the mortgage, that a "transaction" meant a group of facts so connected as to be referred to by a single legal name, that it need not be confined to what was done in one [3] One ground set forth in the petition its immediateness was tested by a logical conday, nor at one time, nor at one place, and that for a new trial is that the witness Mrs. Ly- nection and not by closeness of time, and that ons, who was brought into court on a bench the word "immediately" implied such convenwarrant in an intoxicated condition, was fur-pleting the thing done; and hence that the affiient time as was reasonably requisite for comnished with the brandy which produced that davit conformed to the purpose of the mortcondition by the deputy sheriff who arrested gage and verified the justice and validity of the her on the warrant, and while he had her in debt sought to be secured thereby. charge before delivering her in court. This deputy sheriff was a brother of the plaintiff administrator, but the case does not show that the latter was cognizant of, or in any way responsible for, this most reprehensible act of his brother. Yet the woman was an important witness in the case, and by her intoxication both sides were deprived of the benefit of her testimony, given, as they were entitled to have it, in an intelligible and comprehensive manner. To furnish her with the intoxicating liquor in the circumstances, as the deputy sheriff did, was in effect such an interference with the due administration of justice as on the grounds of public policy requires the granting of a new trial. See Austin & McCargar v. Langlois, 81 Vt. 223, 69 Atl. 739. Judgment reversed, and cause remanded. Petition for a new trial granted, with costs to the petitioner. [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 125-135; Dec. Dig. § 63.* For other definitions, see Words and Phrases, vol. 4, pp. 3403-3410; vol. 8, pp. 70607062, 7818-7819.] 3. CHATTEL MORTGAGES (§ 31*)-REQUISITES [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. § 77; Dec. Dig. § 31.*] 4. CORPORATIONS (§ 661*)-FOREIGN CORPORATIONS-RIGHT TO SUE-"ACTION." the money therefor, in consideration of which, and of the fact that the $150 due The attempt of a foreign corporation, assignee of a chattel mortgage, to foreclose it in him was a temporary loan to meet an emerthis state by proceedings commenced under the gency and a special accommodation, it was agreement for sale contained in the mortgage, agreed that that should be paid in full, as or by a proceeding not commenced in a courtwell as all the money he should pay out for of justice, but under the statute, whereby the property is to be taken and sold at public auction by a public officer, who is to make return of his doings and dispose of the proceeds as required by statute and so end the proceedings, is not available to an individual under the statute preventing the corporation from maintaining an "action" in this state on a contract made here, since the proceeding to foreclose the mortgage is not an action, within the meaning of the statute; the word "action" meaning the demand of a right in a court of justice. [Ed. Note.-For other cases. see Corporations, Cent. Dig. §§ 59, 2536, 2539, 2542, 2543, 2544, 2546, 2563-2567; Dec. Dig. § 661.* For other definitions, see Words and Phrases, vol. 1, pp. 128-140; vol. 8, p. 7563.] Appeal in Chancery, Rutland County; Willard W. Miles, Chancellor. the purpose named, and that he should be secured therefor by a chattel mortgage on the Hogans' stock of goods. This arrangement was made about the 1st of May, 1908, and thereupon Lawrence & Lawrence, attorneys for the Hogans, entered upon the business of procuring the desired settlement, and with the assistance of Carpenter they succeeded in getting all but two or three of the creditors to accept the offer, though there were a few who agreed to accept with whom the amount due had not been fully adjusted at the time of the execution of the mortgage. It was estimated at the time the general arrangement was entered into that it would take about $1,700 to make the settlement ices in the matter. and pay the attorneys $100 for their serv The mortgage was executed and recorded Suit by the Herald & Globe Association against the Clere Clothing Company. Bill dismissed, with costs, after hearing on the bill, answer, and replication, and complainant appeals. Decree affirmed, and cause re-all after-acquired goods that they should buy manded. Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ. M. C. Webber, for appellant. Lawrence, Lawrence & Stafford, for appellee. ROWELL, C. J. This is a bill in chancery by an attaching creditor of Hogan brothers to enjoin the foreclosure by the defendant company, by official sale under the statute, of a chattel mortgage given to Henry O. Carpenter by the Hogans and afterwards assigned to said company. Before and on June 13, 1908, the date of said mortgage, the Hogans were sellers of ready-made clothing and furnishing goods in the city of Rutland. They had for some time been, and then were, considerably involved and unable to meet their liabilities, and wanted to avoid bankruptcy proceedings. They owed the mortgagee $150 that he had loaned them to meet a pressing necessity, and owed the defendant company about $1,383 on account of merchandise purchased of it. They applied to the company to assist them to settle with their creditors and to furnish the money for that purpose; but the company declined, and suggested that they get some one in Rutland to do it, and in this connection Mr. Carpenter's name was mentioned, and the company suggested that they see him, which they and a representative of the company did, and the result was that a general understanding was reached by the parties that Carpenter should assist them to settle with their creditors for 25 cents on the dollar, and that he should furnish the day of its date, and covered the mortgagers' stock of goods then in their store and and place therein, and was conditioned for the payment of $1,700 justly due and owing from the mortgagors to the mortgagee, specified in a certain promissory note of even date therewith for that sum, payable to the mortgagee or order on demand; and the affidavit is that the mortgage was made for the purpose of securing the debt specified in the condition thereof, and for no other purpose whatever, and that the same is a just debt, honestly due and owing from the mortgagors to the mortgagee. Upon the execution and delivery of the note and mortgage, and as a part of the same transaction, the mortgagee made out and left with the mortgagors' attorneys, to use for the mortgagors, his checks, duly drawn and signed by him, payable to the va rious creditors of the mortgagors, most of them being filled out with the amount going to them, but a part of them being left blank as to the amount, as the exact amounts to be paid to a few creditors had not been adjusted. The checks in which the sums were filled out amounted to about $1,200, and they were mailed to the creditors the same day and after the execution of the mortgage. Subsequently, and within a few days, the amounts were ascertained and written into the rest of the checks and the checks forwarded to those creditors. Thus there were used and sent to the various creditors of the mortgagors checks amounting to more than $1,650, which, with the $150 due to the mortgagee, exceeded the sum of $1,700, for which the mortgage note was given. These checks were drawn against the mortgagee's own personal account, which he kept good to meet them, and they were paid there out when presented. Most of the checks | a transaction, and in First National Bank were sent by mail, and some of them were v. Wisdom's Ex'rs, 111 Ky. 135, 147, 63 S. W. not presented for payment for some consid- 461, 464, it is said that a transaction may erable time after the mortgage was ex- not be confined to what is done in one day, ecuted. A release of the mortgagors was nor at one time, nor at one place; that indorsed on each check, and signed by the immediateness is tested, not by closeness of payee. time, but by logical connection. So in Pybus v. Mitford, 2 Lev. 77, it is said that, though the word "immediately" in strictness excludes all mesne time, yet, to make good the deeds and intents of parties, it shall be construed such convenient time as is reasonably requisite for doing the thing. This construction was approved and applied in Thompson v. Gibson, 8 M. & W. 287; and the cases generally are to the same effect. [1, 2] The orator claims that the mortgage is void, for that the true character of the note is not disclosed therein, and the affidavit does not verify the truth, justice, and validity of the debt or liability sought to be secured thereby. It is true, as claimed, that the affidavit must conform to the purpose of the mortgage, and verify the truth, justice, and validity of the debt or other liability sought to be secured thereby. Nichols v.| 21 Cyc. 1731 c. Bingham, 70 Vt. 320, 40 Atl. 827. There the purpose of the mortgage that was held invalid was to secure the mortgagee for $700 then recently advanced to the mortgagor, and, perhaps, further to secure him for a $1,000 note secured by a prior mortgage, and to secure future advances and past and future indorsements. To accomplish this, the mortgagee took the $5,000 note specified in the condition of the mortgage, and the affidavit thereto appended was that the mortgage was taken to secure that debt, and for no other purpose, and that the same was a just debt, etc., which was not true; for the mortgagee was not at that time under much, if any, liability for the mortgagor as indorser, nor did he afterwards incur such lia-aught that is suggested, was as soon as it bility to much, if any, extent, nor advance but little, if anything, and, on complaint of a creditor, indorsed the note down to $700, his real claim thereon. Now here there was no want of immediateness in completing the transaction by the intervention of an interval of time, except as to the few checks in which the amounts were blank; for the agreed facts say that upon the execution and delivery of the note and the mortgage, and as "part of the same transaction," which we take to mean on the same occasion, all the checks were made out and left with the attorneys of the mortgagors for their use, and that most of them were used that day, so that to this extent certainly there was what the parties treated as payment to the mortgagors then and there; and when the remaining checks were filled up and sent out a few days afterwards, which, for could reasonably be done, the intent of the parties in respect of payment to the mortgagors was made good, and the last of the group of facts that constituted the transacThe orator likens this case to that; but we tion was accomplished and the contract comthink it different, and that the true charac-pleted, and then the mortgagors had receivter of the note is disclosed, on its face, and consequently that the affidavit conforms to the purpose of the mortgage and properly verifies the note, because the giving of the note and the mortgage and the giving and issuance of the checks were practically parts of the same transaction, namely, the execution and completion of the contract between the parties to the mortgage. ed from the mortgagee in the manner agreed more than the full amount of the note specified in the condition of the mortgage; and so the affidavit conforms to the purpose of the mortgage, and verifies the truth, justice, and validity of the debt sought to be secured thereby. [3] Before and at the time the mortgage was executed, it was agreed between the defendant company and the mortgagee that the company should protect the mortgagee for all money he should furnish the Hogans to settle with their creditors, and that if the Hogans did not procure the money elsewhere, Mr. Stephen defines a transaction to be a group of facts so connected as to be referred to by a single legal name, as, a crime, a contract, a wrong, or other subject of inquiry that may be in issue. Steph. Dig. Ev. (Chase's Ed.) 8. It is said in Craft Refriger-nor otherwise arrange the matter to the satating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 29 Atl. 76, 25 L. R. A. 856, that this notion of completed action strongly characterizes the word in the Latin language from which, through the Normans, we derive it, although we gain little assistance otherwise from these sources in determining its meaning, since both the Romans and the French have used it mainly as a judicial term to signify an agreement of parties in settlement of affairs. It has been isfaction of the mortgagee, the company would take over the mortgage and pay the mortgagee the amount then due thereon, which it did the 28th of July, 1909. The orator claims that this made the transaction one between the company and the Hogans, and not between the mortgagee and the Hogans, and consequently that the mortgage was given to a party other than the real one to which the debt was owing, and therefore is invalid. This claim is untenable; for the mortgagee, and the promise was made to him, and, for aught that appears, the Hogans were strangers to the agreement between him and the company. TRUSTEES OF CALEDONIA COUNTY GRAMMAR SCHOOL v. KENT. (Supreme Court of Vermont. Caledonia. July 4, 1912. On Motion for Rehearing, July 4, 1912.) [4] The orator also claims that under the agreements of January 25, 1908, and July 1, 1908, as well as by taking an assignment of 1. SCHOOLS AND SCHOOL DISTRICTS (§ 15*) — the mortgage and attempting to foreclose it, the company being a foreign corporation, was and is doing business in this state in contravention of the statute in such case made and provided; it not having procured the requisite authority therefor. But if this claim is well founded, which we do not decide, it makes no difference; for the only sanction of the statute for a violation of it that is available to an individual is inability to maintain an "action" in this state on a contract made here, and the proceedings to foreclose this mortgage are not an action, within the meaning of the statute. Thus, in State v. Brandy, 43 Vt. 297, an action is defined to be the demand of a right in a court of justice. The word "suit" implies a proceeding in a court of justice. Nichols v. Bingham, 70 Vt. 320, 324, 40 Atl. 827. In Burlington v. Traction Co., 70 Vt. 491, 496, 41 Atl. 514, the words "suit" and "civil cause," used in a statute, are construed to include only actions that are commenced in a court of justice, or that may come before such a court by appeal from the decision of the tribunal before which they are commenced, and such other proceedings as are required to be commenced before tribunals not courts, as a condition precedent to giving courts jurisdiction of the matter therein involved, but not to include proceedings before a board whose functions are merely administrative or ministerial, although it may possess so much of judicial function as may be involved in making inquiry, not to include a board whose decision is final. Now here the foreclosure proceedings were not commenced in a court of justice, nor can they go to such a court by appeal, nor were they required to be commenced before a tribunal not a court, in order to give a court jurisdiction of the matter involved therein; but they were commenced, it seems, under the statute for foreclosing chattel mortgages, whereby the property is to be taken and sold at public auction by a public officer, who is to make return of his doings and file the same in the town clerk's office in the town where the mortgage is recorded, and dispose of the proceeds of the sale as required by statute, and then the proceedings are finally ended. And if the proceedings were commenced under the agreement for sale contained in the mortgage and not under the statute, as the company claims, all the more would they not be an action, within the meaning of the statute. Decree affirmed, and cause remanded. SCHOOL LAND-RIGHT TO CONVEY. Under Act 1795, appointing trustees of the Caledonia county grammar school, and empowering them to "hold and lease" the school's lands, the trustees were not empowered to convey the fee. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 17-22; Dec. Dig. § 15.*] 2. SCHOOLS AND SCHOOL DISTRICTS (§ 15*)— DEED DISTINGUISHED FROM PERPETUAL LEASE. An instrument executed by the trustees of a county grammar school purporting to give a perpetual lease of the school's land without reservation of rents, all charges being settled in advance upon delivery of the instrument, was an attempted conveyance in fee and not a lease. [Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. §§ 17-22; Dec. Dig. § 15.*] 3. SCHOOLS AND SCHOOL DISTRICTS (§ 15*)— PROPERTY-POWERS OF TRUSTEES CONVEY ANCE. Where the statute authorized the trustees of a school to hold and lease school lands, a perpetual lease thereof reserving no rent, but in consideration of a sum paid in advance, was invalid as defeating the legislative purpose to provide a yearly income for support of the school. [Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. §§ 17-22; Dec. Dig. § 15.*] 4. STATUTES (§ 183*)-CONSTRUCTION-SPIRIT OF LAW. A thing which is within the intention of the makers of a statute, although not within the letter, is as much within the statute as if it were within the letter. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 261; Dec. Dig. § 183.*] 5. LICENSES (§ 46*)-VOID DEEDS. A void instrument of conveyance may operate as a license to enter. [Ed. Note.-For other cases, see Licenses, Cent. Dig. §§ 100, 102; Dec. Dig. § 46.*] 6. LICENSES (§ 58*)-LICENSE TO ENTERREVOCATION. A license to enter arising out of a void conveyance, not being coupled with a grant, is revocable, though a consideration was paid for the void conveyance. [Ed. Note. For other cases, see Licenses, Cent. Dig. §§ 116-120, 121; Dec. Dig. § 58.*] 7. LICENSES (§ 53*)-ASSIGNMENT. A mere license is a personal privilege extending only to the persons to whom given, and is not assignable. [Ed. Note.-For other cases, see Licenses, Cent. Dig. § 111; Dec. Dig. § 53.*] 8. TRIAL (§ 359*) — FINDINGS WITH GENERAL VERDICT. - CONFLICT Where the special findings are consistent with each other and irreconcilably inconsistent with the general verdict, the general verdict falls, and the special findings control the judg ment. [Ed. Note. For other cases, see Trial, Cent. Dig. $$ 857-860, 875, 877, 878; Dec. Dig. § 359.*1 9. SCHOOLS AND SCHOOL DISTRICTS (§ 115*)—not to be answered in case the first should SCHOOL LANDS-EJECTMENT-PARTIES. The right to maintain ejectment against parties in possession of county grammar school lands under a void conveyance was in the trustees of the county grammar school, and not in the state. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 272; Dec. Dig. 8 115.*] On Motion for Rehearing. 10. ADVERSE POSSESSION (§ 8*) - PROPERTY SUBJECT-SCHOOL LANDS. Lands granted to trustees to be held and leased for a county grammar school are held for a public use, and hence limitations will not run against the right of the trustees to recover the lands from one holding under a void conveyance. [Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 14, 27, 43-57; Dec. Dig. § 8.*] 11. LANDLORD AND TENANT (§ 66*)-ADVERSE POSSESSION BY TENANT-PERPETUAL LEASE. One cannot acquire a prescriptive title to lands which he holds under a perpetual lease. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 199-209; Dec. Dig. § 66.*] be answered in the affirmative, as it was. The general verdict was for the defendant. Special questions 1, 3, and 4, with the answers of the jury, were as follows: "Question 1. Was lot No. 10, in the eighteenth range, Third division, located by the town of Hardwick as a grammar school lot, as provided by the town charter? Answer: Yes. "Question 3. Were the trustees of the Caledonia county grammar school fully compensated for all the land granted to them for county grammar schools in the lots located and set apart in the first and second divisions? Answer: No. "Question 4. Does defendant hold possession of lot No. 10, in the eighteenth range, third division of lots, town of Hardwick, under and by virtue of a perpetual lease from plaintiff to her grantors? Answer: Yes." After verdict and before judgment, the plaintiff moved for judgment in its favor notwithstanding the verdict, for seven different reasons stated, the third of which Exceptions from Caledonia County Court; was: "The defendant could not acquire in Fred M. Butler, Judge. Action by the Trustees of Caledonia County Grammar School against S. Blanche Kent. Verdict and judgment for defendant, and plaintiff excepts. Reversed and remanded. Argued before ROWELL, C. J., and MUNSON, WATSON, and HASELTON, JJ. B. E. Bullard and Elisha May, for plaintiff. H. Henry Powers, Alexander Dunnett, and W. A. Dutton, for defendant. the premises other than a leasehold title in any manner whatsoever. The perpetual lease, which the jury find by special verdict (finding) No. 4, under instruction of the court, is a conveyance without reservation of rents, the prime essential of leasehold estates, with all charges settled upon delivery therefore title in fee and void." The moof the conveyance, in advance, and it is tion upon this ground was in substance for a judgment in plaintiff's favor on the special findings. The WATSON, J. This case is here now for By special findings 1 and 3, it was estabthe second time on exceptions saved by the lished, contrary to defendant's contention beplaintiff in a trial by jury, and we may re- fore the jury, that the lot in dispute was fer to the opinion before written (84 Vt. 1, located to the plaintiff by the original pro77 Atl. 877) for a statement of the facts, ex-prietors, and that the plaintiff was not fulcept such as were new or more particularly ly compensated under the "quantity for qualdeveloped or established at the last trial. ity" clause of the town charter for all the The defendant stood on the general issue, land granted to it by the lots located to its and claimed there was no evidence tending right in the first and second divisions. With to show that the lot in question (lot No. 10, these facts established the effect of special range 18, division 3, of lands in the town finding No. 4 is of vital consequence. The of Hardwick) was ever assigned to the plain- defendant's evidence tended to show that by tiff, as required by the charter of the town, a perpetual lease the plaintiff leased the lot but that, if it had been so assigned, the in question to her grantors Holton & Judeplaintiff had executed to the defendant's vine as early as 1847, and that they paid grantors such a contract or lease as it had for such lease $100 as commuted rent. a right to give, and that the defendant was court instructed the jury to consider, in anin rightful possession under the same. Many swering the fourth special question, whether exceptions were taken by the plaintiff to the $100, the payment of which defendant's rulings on questions of evidence, to the fail- evidence tended to show, was applied on this ure of the court to charge as requested, and grammar school lot contract, and, if it was to the charge given. But the view we take rent, whether the defendant went into posof the case enables us to dispose of it on the session under such contract. Construing exceptions to the overruling of the plain- that question and the affirmative answer tiff's motion for judgment in its favor, not- thereto in the light of the charge, the findwithstanding the verdict. In submitting the ing is that the defendant holds possession case for a general verdict, the court also of the lot in dispute under and by virtue of submitted to the jury four special questions a perpetual lease from the plaintiff to the for findings in answer thereto, the second, defendant's grantors, $100 being paid by the |