Exceptions from Rutland county court. Assumpsit by L. W. Craig against Eugene Gunn and the Delaware & Hudson Canal Company, trustee. The trustee moved that it be discharged, for want of jurisdiction. Motion overruled, and judgment for plaintiff. The trustee excepts. Reversed.

The plaintiff is a citizen of Colorado; and the defendant, of New York. The contract was made in Colorado. The trustee is chartered and organized under the laws of New York, and has its principal offices and places of business in that state, but operates a line of railroad in Vermont. The debt due the defendant was for wages as a fireman, for services rendered wholly in New York, upon a contract made there, and payable there.

J. A. Merrill, for plaintiff. Butler & Moloney, for defendant trustee.

TYLER, J. The principal parties were nonresidents, and the trustee was a foreign corporation, having its principal office and place of business in the city of New York, but operating lines of railroad extending from points in the state of New York to the city of Rutland, in this state. It also owned and operated various lines of railroad situated wholly in the state of New York. The contract upon which the suit was brought was made in another state, and the sum due from the trustee to the defendant was wages for services rendered by the defendant for the trustee upon a line of railroad lying wholly in the state of New York, under contract of employment made in that state, and there payable. Corporations are amenable to the trustee process, like private persons, but this mode of attaching the personal property of a debtor, in the hands of a third person, is conferred only by statute; and section 1073, R. L., provides that no person shall be summoned as a trustee, unless at the time of the service of the writ he resides in this state. Citizens of another state, and subject to its laws and jurisdiction, are not within the jurisdiction of the courts of this state, and the credits in their hands have no situs here, and are no more attachable by this process than are the goods of a debtor situated in another state. Baxter v. Vincent, 6 Vt. 614; Peck v. Barnum, 24 Vt. 75; Rindge v. Green, 52 Vt. 204. In Nichols v. Hooper, 61 Vt. 295, 17 Atl. 174, the plaintiff and defendant resided in New York; and the debt that the plaintiff sought to recover, and the one due the defendant from the trustee, were contracted, and in law were payable, in that state. The trustee resided in this state, and was held liable; so that case is decisive of every question that arises in the present one, excepting the question of jurisdiction over the trustee, upon the facts stated.

Gold v. Railroad Co., 1 Gray, 424, arose under a statute like our R. L. § 1072. The

als.

agreed that the defendants have leases of railroads in this county, and this would make a strong case for charging them as trustees, if they could be chargeable as such under any circumstances. But the case of Danforth v. Penny, 3 Metc. (Mass.) 564, is decisive, and shows that a foreign corporation cannot be so charged. By Rev. St. c. 109, § 6, 'all corporations may be summoned as trustees.' But what corporations? The very generality of the terms requires some qualification. It cannot be construed, literally, all corporations, in whatever part of the world established and transacting business. The answer is to be found in the statutes in pari materia then existing. The statute in question was only an extension of an existing system. It was intended, we think, to put corporations on the same ground as individuAnd it is well settled that an individual, an inhabitant of another state, is not chargeable by the trustee process, although found in this commonwealth, and here served with process. Tingley v. Bateman, 10 Mass. 343; Nye v. Liscombe, 21 Pick, 263. In the case of corporations which have no local habitation, the principle is this: If established in this commonwealth, by the laws thereof, they are inhabitants of this commonwealth, within the meaning of the law; but, if established only by the laws of another state, they are foreign corporations, and cannot be charged by the trustee process." This was the construction given a statute which contained no provision like our section 1073, that nonresidents should not be subject to the trustee process. In 1870 the statute was amended so that nonresidents, and corporations established by the laws of another state, might be summoned as trustees, if they had a usual place of business in Massachusetts. In Larkin v. Wilson, 106 Mass. 120, the writ was served before the amendment to the former act was in force; and the court, for that reason, refused to hold a foreign corporation liable to the trustee process, and cited Danforth v. Penny and Gold v. Railroad Co., supra, in support of the position that such a corporation was not liable to be summoned as a trustee, though it was the lessee of a railroad in that state, and its principal officers resided there, and agents were employed there to manage the road. In the later case of Bank v. Huntington, 129 Mass. 444, it was held that a railroad corporation created by the laws of another state, and having an office in Massachusetts for the convenience of its stockholders, and for the better management of its finances and other business, where its principal officers were to be found, and where it carried on such business as is usually carried on in the office of the president and treasurer of a railroad corporation, had a usual place of business in that state, within the meaning of the act of 1870, and might be summoned as trustee. We have no statute like the Massachusetts act of 1870, and, even un

der that act, this trustee process could not be maintained; for, though it is presumable that the trustee had depots, freight houses, and agents in this state, it did not appear that it had any such office here as is described in the Massachusetts act.

Drake on Attachment (section 474) says: "In this country, the question has been repeatedly presented, and the uniform tenor of the adjudications establishes the doctrine that whether the defendant resides, or not, in the state in which the attachment is obtained, a nonresident cannot be subjected to garnishment there, unless, when garnished, he have in that state property of the defendant in his hands, or be bound to pay the defendant money, or to deliver to him goods, at some particular place in that state.

It was said in Smith v. Insurance Co., 14 Allen, 339: "A corporation, being a mere creature of local statutes, can, of right, have no existence nor recognition beyond the limits of the state wherein it is established. By comity, such artificial persons are permitted to contract and sue in other states. If they avail themselves of that comity, ** they may become liable to its jurisdiction, to the extent to which they have thus voluntarily subjected themselves."

This court held in Osborne v. Ins. Co., 51 Vt. 278, that the defendant corporation was to be treated as a citizen of the state in which it was incorporated, and, there being uo attachment of property, jurisdiction could only be obtained by service of the writ upon the insurance commissioners of this state, and by a compliance by the defendant corporation with the statute which requires foreign insurance companies to agree that they may be sued in this state, which, as the court said in the case last cited, "is equivalent to an agreement that they may be found here for the service of process." The debt due from the trustee to the defendant, of course, had no situs in this state, unless the trustee resided here, within the meaning of our statute. It cannot be maintained that it did reside here. We find no occasion to depart from the decision in Towle v. Canal Co., 57 Vt. 622, though no opinion was written in that case. Judgment reversed, trustee discharged, and action dismissed.

COLLINS v. CORSON. (Court of Chancery of New Jersey. Dec. 26, 1894.) ACTION TO DECLARE TRUST IN LANDS-PAROL EVIDENCE-INTEREST OF CESTUI QUE TRUST

-RESULTING TRUST-HOW RAISED.

1. Parol evidence is admissible, in an action to have a resulting trust declared in certain land by one who claims to have paid part of the price, to determine whether he advanced it as part of the price, or whether it was a loan from him to the grantee.

2. A resulting trust is raised by operation of law in favor of one who, in fulfillment of a parol agreement, paid part of the price of land

GREEN, V. C. This bill is filed for a decree that there is a resulting trust, in favor of the complainant, to an equal, undivided half of certain lands in Atlantic City, conveyed to the defendant by Charles R. Lacy, sheriff, and that the defendant be decreed to convey to complainant the said half so alleged to be held in trust. The complainant and defendant were accommodation indorsers for one Solomon Johnson, on his promissory note, dated August 27, 1893, at four months, to the order of John Wilson, for $350. Johnson was the owner of real estate in Atlantic City, subject to a second mortgage of $500 made by Solomon Johnson to John R. Wilson, the first mortgage thereon being for $1,200. Corson, the defendant herein, on September 13, 1893, brought suit in the Atlantic county circuit court against Johnson, to recover the amount due him on a note given by Johnson to him, dated May 29, 1893, for $300; but, before judgment was entered, Johnson and wife conveyed the property to one Abbey Woolbert, and this was the only property of Johnson subject to execution. The Second National Bank of Atlantic City had on March 10, 1893, obtained judgment in the Atlantic county circuit court against Johnson and one McGlade for $367.22, which was a lien upon this real estate, and prior to the said mortgage of Wilson. The sheriff of Atlantic county had levied upon the property under execution issued on this judgment, and advertised the property for sale. Thereupon, it was agreed between the complainant and the defendant and said Wilson that, if Wilson would not bid against them at the sheriff's sale, they would assume the payment of his mortgage, and buy the property, each to pay one-half. The sheriff's sale was held, and Wilson did not bid, and the property was struck off to Clarence L. Cole, who represented these parties; and the complainant paid one-half of all the expenses connected with the purchase, including interest on the first mortgage of $1,200, and the taxes for 1892 and 1893. Supposing they had a ready purchaser for the property, the deed from the sheriff was made to the defendant, by consent of the complainant.

It was competent to show by parol the circumstances under which the complainant had paid one-half of the purchase money, for the

purpose of ascertaining whether he advanced it in payment pro tanto of the purchase price, or whether it was simply a loan from him to the grantee. Having proved that it was a payment on account of the purchase money, a resulting trust is raised, not by the parol agreement of the parties, which would be creating an interest in lands by parol, but by operation of law. The trust being established, the quantum of the interest is in the proportion which the amount of the payment bears to the whole amount of the purchase money. Flint, Trusts, § 66. If the party claiming the trust has paid all the purchase money, then the other party, in whose name the title has been taken, is charged with a resulting trust as to the whole. If he has only advanced one-half, then his interest would be limited to one-half; and parol testimony is not admissible to vary this interest, for, if a party who had paid one-quarter of the purchase money of property, the title to which is taken in the name of another, could be permitted to come in with parol testimony to show that, by the parol agreement between the parties, he was to have a three-quarter interest, instead of one commensurate with his payment, it would be a violation of the statute. For the same reason, the interest of the party paying a part of the purchase money cannot be diminished or impaired by parol evidence of a parol agreement to that effect. I am therefore of opinion that there was a resulting trust in the lands conveyed to the defendant, in favor of complainant, to the extent of an undivided one-half thereof.

26 Atl. 96, affirmed.

2. That provision of the road act of March 27, 1874, which, by section 84, prescribes that "the term 'township,' made use of in this act, shall be construed to comprehend precinct, ward, city, borough, and town corporate," has no relation to Act March 23, 1859, relating to roads, and providing, by section 20, for an action against a township by any one damaged through its negligence in repairing a public road.

Error to supreme court.

Action by May L. Carter and others against the mayor and common council of city of Rahway. There was a judgment for defendants (55 N. J. Law, 177, 26 Atl. 96), and plaintiffs bring error. Affirmed.

Jackson & Coddington, for plaintiffs in error. Benj. A. Vail, for defendants in error.

MAGIE, J. The declaration demurred to is grounded upon the neglect of the city of Rahway to keep in repair a public highway in that city, by which want of repair the plaintiff in error was injured. The supreme court applied the well-settled doctrine that a municipality is not subject to such an action unless the liability has been imposed by statute, and held that section 20 of the supplement to the road act of March 23, 1859 (Revision, p. 1014), which purports to give an action against a township to any person damaged by means of the insufficiency or want of repair of any public road in such township, did not give such an action against a city to a person injured by its neglect to keep in repair the municipal streets. Carter v. City of Rahway, 55 N. J. Law, 177, 26 Atl. 96.

It is now contended that the conclusion reached by the supreme court was erroneous, because it did not take into account section 84 of the "Act Concerning Roads," approved March 27, 1874 (Revision, p. 990), which prescribes that "the term 'township,' made use of in this act, shall be construed to comprehend precinct, ward, city, borough, and town corporate." The claim is that the section last named and section 20 of the supplement of 1859 must be read together, and that, when so read, an action is expressly given against a city for an injury received by reason of its permitting municipal streets to be out of repair. This contention is obviously too broad. The supplement of March 23, 1859, does not apply to the whole state. It was originally a supplement to the road act of 1846, and applied only to 11 counties of the state. Some of those counties were subsequently withdrawn from the operation of that supplement, and others and parts of others were put within its operation. So, in 1874 it was not applicable to the whole state, but only to parts thereof. When the Revision of 1874 was made, the supplement of March 23, 1859, was not included in the

road act, but was expressly continued in force as if re-enacted as a supplement to that act. Revision, p. 1013, § 99. The effect was that the supplement of 1859 thereafter continued to be the rule in respect to roads in the counties and parts of counties to

which it was previously applicable. The contention must, therefore, take this shape, viz.: That cities in counties included within the operation of the supplement of 1859 are thereby made liable to such actions as that now under consideration. There can be no possible ground for contending that cities in other counties are affected by this legislation. As Union county was affected by the supplement of 1859, and as Rahway is a city in that county, the contention of plaintiff in error must be considered. The question so presented was not involved in Pray v. Jersey City (1868) 32 N. J. Law, 394, for, although Hudson county was originally within the operation of the supplement of 1859,

a further supplement, approved February 11, 1864 (Laws 1864, p. 21), had enacted that the provisions of the supplement of 1859 should no longer apply to that county. Taking into consideration the history of these acts and their plain and obvious intent, I can find no ground on which the contention now made can be supported.

By

The act concerning roads passed February 9, 1818 (Pat. Revision, p. 615), contained provisions for the laying out and opening of roads and their maintenance and repair. By supplement passed February 26, 1840 (Laws 1840, p. 84), provision was made in respect to the maintenance and repair of roads which formed the boundary between townships. Authority was given to apply to the court of common pleas, if such townships were in the same county, or to the supreme court, if such townships were in different counties, for the appointment of commissioners, who were empowered to assign the portion of such roads to be maintained and kept in repair by each township. section 5 of that supplement it was prescribed that the term "township," as used in that act, should be construed to comprehend "precinct," "ward," "city," "borough," and "town corporate." This was the first appearance of this provision in any of the road acts, and it plainly applied only to the previous provisions of that supplement, and extended them to roads dividing and forming the boundary between the other subdivisions named, viz. precincts, etc. This supplement of 1840 was incorporated bodily in the road act of 1846, and became sections 48, 49, 50, and 51 of that act. Rev. St. 530. Its fifth section became section 51. Did the inclusion in the revised act of the provision that the term "township" should be synonymous with "precinct," "ward," "city," "borough," and "town corporate," which provision, in its original relation, affected only roads forming the boundary between those subdivisions of the state, indicate an intent to make the provision applicable to the whole act?

In a case presenting a similar question, that learned jurist, Chief Justice Green, declared that he inclined to the view that, when statutes whose meaning is plain are consolidated without change of phraseology, the same construction should be put on the consolidated act as was given to the original statute, and he determined that a different construction ought not to be adopted in such case if thereby the policy of the act is subverted or its material provisions defeated. "The law," said he, "is not to be construed by its mere letter. The intent of the legisThe intent of the legislature is to be ascertained from the context, the effects and consequence, and the reason and spirit, of the law." In re Murphy, 23 N. J. Law, 180. See, also, Pomeroy v. Mills, 37 N. J. Eq. 578, and Marts v. Insurance Co., 44 N. J. Law, 478. Looking at the provisions of the road act of 1846 for the laying

out and opening and the maintenance and repair of roads in townships, it is impossible to conceive that it was the legislative intent to make those provisions applicable in cities, boroughs, or towns corporate. The provision of section 51 was obviously designed to bear the same relation and have the same operation in the consolidated act that it had in the supplement of 1840, where it originated. In practice, the creation and management of roads in townships were governed by that aet, and cities and other municipalities named found their rules respecting highways in their charters. The act of March 23, 1859, was a supplement to the road act of April 16, 1846. Its twentieth section gave, in general terms, to every person sustaining damage by reason of the insufficiency or want of repairs of any public road in any township, a right of action against the township by its corporate name. But this general provision was, by the twenty-second section, limited in its effect to the townships included in only 11 counties, for it was thereby enacted that nothing contained in that supplement should apply to the other 10 counties. This supplement became law, therefore, when the definition of the word "township," contained in section 51 of the act of 1846, was limited in its operation and effect to the enactments respecting roads. dividing townships and other municipalities which were contained in sections 48, 49, and 50 of that act. The revised road act of 1874 contains the provisions of the supplement of 1840, respecting roads dividing townships. The first four sections of that supplement have become sections 61, 62, 63, and 64 of the revised act. The fifth section, which made the term "township" synonymous with "precinct," "ward," "city," "borough," and "town corporate," was not placed in juxtaposition with the previous sections, but has become section 84 of the revised act. But this change in the collocation of the sections has never been conceived to indicate a legislative intent to make the provisions of the revised act respecting the laying out and opening of roads, or their maintenance and repair, apply to cities, boroughs, or towns. Those municipalities continued to act under their charters, and no one, I think, can be found to contend for a construction of this legislation which would leave them affected by the road act.

But the question before us is not as to the effect of the provisions of section 84 upon the other provisions of the road act, but its effect upon section 20 of the supplement of 1859. Did the legislature, in re-enacting that supplement as a supplement to the revised act of 1874, intend to make cities, boroughs, and towns corporate, in the counties to which that supplement was applicable, liable to actions for failing to keep in repair their municipal streets? In my judgment, it is manifest that there was no such intent. The supplement of 1859 provided for the town

ships, in the counties to which it applied, a new mode for maintaining and repairing roads. The scheme differed entirely from that of the general road act. There was a reason, therefore, for imposing upon townships which acquired new and increased powers a new rule of liability in case of negligent failure to exercise those powers. The twentieth section does impose such liability, and, in so doing, conforms to the plain spirit and intent of the legislation. But cities, towns, and boroughs in those counties were not granted any new powers, nor did they acquire, under the system proposed by the supplement of 1859, any new or increased facilities for keeping their streets in repair. They remained with the charter powers they had previously had. It borders on the absurd to contend that it was the legislative intent to impose on them a liability to this class of action, which liability cities, boroughs, and towns in other counties were exempt from.

Considering the history and sequence of the acts in question, and looking at their spirit and intent, I find it impossible to give to section 20 of the supplement of 1859 the construction contended for. In my judgment, the provisions of section 84 of the road act do not apply to the provisions of section 20 of the supplement of 1859. I shall vote to affirm the judgment.

MCGILL, Ch., and ABBETT, DEPUE, VAN SYCKEL, and BOGERT, JJ., dissent.

MERCHANTS' BLDG. & LOAN ASS'N v. BARBER et al.

(Court of Chancery of New Jersey. Dec. 15, 1894.) ATTACHMENT-DISCOVERY OF UNRECORDEd Deed BEFORE LEVY--NOTICE THEREOF-CONFESSION OF JUDGMENT-RIGHTS OF CREDITORS.

1. An attaching creditor, who, before the completion of his levy and the perfection of his attachment by the issuance of a proper war rant, discovers an unrecorded deed of certain realty from his debtor to another, for a valuable consideration, will be deemed to have such notice thereof as to deprive his subsequent judgment of priority.

2. The fact that a judgment confessed by a brother in favor of his sister was greatly in excess of the amount due her from him will not, in the absence of other evidence of fraud, render it void as to his creditors, where it appears that the sister was not experienced in business, and that she relied entirely upon his statements as to the amount due her.

3. In an action by a creditor to set aside a judgment confessed in favor of one's sister as void for excess, there being no evidence of fraud on her part in obtaining it, equity will maintain its validity to the extent of the amount which was actually due on the debt it sought to secure.

Bill by the Merchants' Building & Loan Association against John Barber and others to foreclose a mortgage. A cross bill was filed by one of the defendants, Warren R. Schenck, as administrator de bouis non of the v.30A.no.19-55

estate of Sarah Barber, deceased, asserting his right to the property as part of the assets of her estate, as against the claim put forward by Lizzie Goodwin, a sister of defendant Barber.

Henry B. Cook, for complainant. George Berdine, for defendants.

BIRD, V. C. There is no dispute with respect to the mortgage which is sought to be foreclosed by the complainant in this cause. The real controversy is between defendants. John Barber, the owner of the mortgaged premises, is a son of Sarah Barber, who died leaving a last will and testament, making the said John Barber her executor. In and by her will, she gave several legacies. John Barber, while attempting to administer the estate of his mother, became involved in debt, beyond his ability to pay. He was discharged from the further performance of the duty of executor. Warren R. Schenck was appointed administrator de bonis non cum testamento annexo. By way of cross bill, he is endeavoring to secure to himself, as such administrator de bonis non, that which he claims to be part of the assets of the estate of Sarah Barber, deceased. His claim arises upon the facts following: John Barber, the executor, became indebted to his sister Lizzie Goodwin, one of the legatees under his mother's will, for money loaned to him, as well as for such legacy, which she permitted him to use. After this he confessed a judgment to his sister Lizzie, in the sum of $5,000. Upon the entry of this judgment, she made affidavit stating that the consideration of such judgment was for money loaned and advanced, and for the legacy due to her. An execution was issued upon this judgment, and levies taken upon all the real estate of John Barber. One of the properties so levied upon is known as the "French Street Property." Afterwards, and on the 5th day of March, 1894,-about eight months after the giving of the bond and warrant of attorney.-John Barber executed a deed for all his interest in the said French street property to his sister Lizzie, and delivered it to her. This was done upon the advice of her counsel. In his testimony he says that he so advised in order to save the costs and expenses of sheriff's advertising and sale of the premises. The deed which was delivered to Lizzie by John, she handed back to him, upon the promise by him that he would have it recorded. The fact that it was so delivered is not disputed. Instead of having it recorded, he deposited it in his safe, among his other papers. This safe, as I understand the testimony, he gave to his sister Lizzie, and delivered to her the possession thereof. As this deed was delivered upon the 5th day of March, 1894, soon thereafter he absconded from the state; and on the 26th of the same month the said Warren R. Schenck, as such administrator de bonis non, procured an attachment to be issued against him. The of