The jury by their verdict necessarily found that the plaintiff was not, at the time of his injury, employed and engaged in interstate commerce, and as there was much evidence offered on that point by the defendant and excluded by the court, under objection and 4. NEW TRIAL 161-GROUNDS - RESTRIC- exception by the defendant, it is necessary Where the trial of a brakeman's action for for us to consider whether or not there was injury at common law erroneously excluded the prejudicial error in the rulings excluding

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favor, he be allowed to amend his declaration in this court, so as to make it a declaration under the federal Employers' Liability Act. But he tried his case on a different theory, and so such an amendment cannot properly be allowed in this court. The defendant asks that, if the case is reversed and remanded, consideration be here given to the question of damages, on the ground that, as found by the jury on the former trial, they are excessive, and that this court should now deal with that question.

such evidence, for, if there was, the findings | And we think that a new trial should be of the jury must go for nothing. The de- granted on all questions in the case. fendant claimed that the accident happened [3] The plaintiff asks that, if necessary to during the switching movements at London- the holding by him of the judgment in his derry, incidental to the taking into the train of a car, loaded with bark, to be taken without the state, that the plaintiff was engaged in these operations, and so that the plaintiff's right was to be determined under the federal Employers' Liability Act. Pennsylvania Co. v. Donat, 239 U. S. 50, 36 Sup. Ct. 4, 60 L. Ed. -; New York, etc., R. R. Co. v. Carr, 238 U. S. 260, 262, 35 Sup. Ct. 780, 59 L. Ed. 1298. The plaintiff claimed and introduced some evidence tending to show that the carload of bark in question was not shipped on the day of the accident, which, as we have said, was January 8th. The bill of the bark was dated January 7th; but the assistant station agent, who made it out, testified that for some reason the bark did not leave until the 8th of January. His testimony was that he knew that the car containing the bark went out on the 8th, because the car record which he kept, and which it was his duty to keep, showed such to be the fact. The car record to which he referred showed what the witness testified to, and was offered in evidence in corroboration of the witness, and as independent evidence, and was excluded. But its exclusion was error, for it was admissible on both grounds of the offer.

One Rouse was the conductor of train 52, and in the performance of his duty kept a record of the cars in the train. Refreshing his recollection by reference to the record so kept by him, he testified that the car of bark was included in the train. The report or record itself was offered, and excluded under objection and exception. But its exclusion was error. Witness Rouse identified a train register kept at South Londonderry, and testified that an entry thereon in his handwriting showed that three cars were billed in train 52 on January 8th, and that train 52 hauled these cars out of South Londonderry on that day. The entry on the train register made by him was offered and excluded under objection and exception. But in this exclusion there was error. Other exhibits of like character were offered and excluded under objection and exception, but it is unnecessary to enumerate them.

[2] The exceptions to those referred to raise sufficiently the questions of evidence argued and requiring decision. As we have seen, material evidence was excluded under objection and exception. Griffin v. B. & M. Railroad, 87 Vt. 278, 89 Atl. 220, and cases there cited.

The defendant moved for the direction of a verdict in its favor which, as the evidence stood, was, we think, properly overruled; but because of the prejudicial rejection of material and admissible evidence offered by the defendant, there should be a new trial.

[4] We are clear that in this case, since there must be a new trial, a new trial of all questions, including the question of damages, will best subserve the ends of justice. We are confirmed in this view by the fact that since the case was tried, the Supreme Court of the United States has, in several cases and on several points, interpreted the federal act in question, and has made it desirable that the new trial should be had without any restrictions upon either party consequent upon the result of the former trial. Judgment reversed, and cause remanded.

(90 Vt. 25)

ROWLEY et al. v. SHEPARDSON et al. (Supreme Court of Vermont. Windham. Jan. 13, 1916.)

1. APPEAL AND ERROR

934-PRESUMPTIONS

FAVORING DECREE. Where the decree is for the defendants, all inferences to be drawn from the facts found are against the plaintiffs.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3777-3782; Dec. Dig. 934.]

2. FRAUDULENT CONVEYANCES 64 FRAUD OF CREDITORS.

Where a husband, not indebted at the time, and not to defeat the claim against him of parties whom he had defrauded in the sale of a her to hold the property against his heirs in case farm, conveyed his property to his wife to enable of his death, he being in feeble health and desiring that it should go to her and not to them, the wife did not hold title to the property in fraud of the parties defrauded by the husband.

[Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. 88 159-161, 164, 165; Dec. Dig. 64.]

farm sued the seller without joining his wife, in Where parties defrauded in the sale of a their subsequent suit against the seller and wife to enforce satisfaction of the judgment in the prior suit, the wife was not concluded by such judgment.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1216; Dec. Dig. 693.] 4. HUSBAND AND WIFE

105-LIABILITY OF
MARRIED WOMEN-TORT AND CONTRACT.
At common law a wife rested under no lia-

bility for a tort founded upon her contract.
Wife, Cent. Dig. §§ 378, 383; Dec. Dig.
[Ed. Note.-For other cases, see Husband and
105.]

5. EQUITY 62-MAXIMS-EQUITY FOLLOWS Charles S. Chase and William R. Daley, THE LAW. both' of Brattleboro, for appellants. Barber & Barber, of Brattleboro, and Cudworth & Pierce, of So. Londonderry, for appellees.

In a suit against husband and wife to en-ed on a salary for many years, the former force satisfaction of a judgment at law recovered receiving $1,200 to $1,500 a year and board, against the husband for fraud in the sale of their farm, where it was charged that the wife received the proceeds of such fraud with knowledge thereof, her cross-examination, as to whether she was told by the parties to the sale of the farm, after they had finally made their arrangements, what such arrangements were, was improperly excluded, since the evidence bore directly on the issue whether the wife received the proceeds of the sale with knowledge of the fraud.

Appeal in Chancery, Windham County; agent for his wife in these matters, exercisFrank L. Fisk, Chancellor.

ing his own judgment, and she acquiesced in his dealings.

One of the purchases made by him was the Hunting farm, over which this litigation arose. The consideration paid was $4,000, consisting of $2,400 realized from the equity in the Massachusetts property, standing in the wife's name, $750 from each of their sav

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fraud of plaintiffs' rights as creditors of George W. Their right of recovery, if any, on the case before us, grows out of the fraud affecting the notes and mortgage received by Eva C. in the sale of the Hunting farm.

ings deposits, and $100 as to which the source did not appear. George W. held the title to the Hunting farm in his own name until January 12, 1904, when he transferred it without consideration to Eva C. The farm was sold and conveyed to the plaintiffs in Novem- It is claimed that, as the findings show ber, 1905, and in this transaction the fraud that Eva C. has the avails of the fraudulent was committed for which the plaintiffs recov- transaction, the plaintiffs are entitled to ered judgment against George W. The pur- have the notes remaining in her hands canchase price of the farm was $1,600, for which celed and the amount applied upon their exthe plaintiffs executed to Eva C. 16 promisecution against George W. The bill is framsory notes of $100 each secured by a mort- ed with this object in view. As drawn it has gage to her of the farm. Six of these notes a double aspect. It seeks to have the judghave been paid with interest on the whole indebtedness to November 20, 1911. ments were sometimes received by George W., and sometimes by Eva C.

ment in the suit at law satisfied out of the Pay- "Hermitage" property and the mortgage on the Hunting farm as held by Eva C. in fraud of creditors; and is also framed to compel her to restore sufficient of the avails of the Hunting farm, which it is alleged she received through the fraud of George W., acting as her agent, to satisfy their execution against him. As a foundation for this ground of relief the bill charges that George W. was acting as the agent of Eva C. in the sale of the Hunting farm to the plaintiffs; that she knew of and participated in the fraudulent representations made by George W. to induce the plaintiffs to purchase said farm; that she acquiesced therein and received the benefit thereof, taking to herself notes to the amount of $1,600 signed by plaintiffs and secured by a mortgage on the farm; that she has received $600 on said mortgage notes exclusive of interest, and still holds notes to the amount of $1,000. On this phase of the case plaintiffs ask that Eva C. be ordered to bring said notes and mortgage into court; that the same be decreed to be void and canceled; that she be ordered to refund to them the money paid on said notes, or such part thereof as the court may deem just; and for further relief appropriate to this aspect of the bill.

George W. purchased the Hermitage property in December, 1904, and the same was deeded directly to Eva C. The price paid was $3,750, made up as follows: $850 from George W.'s personal funds, $850 from savings deposit in Eva C.'s name, and $2,050 received from the sale of timber purchased in 1901 for $1,050, with funds from savings deposit in Eva C.'s name. The chancellor finds that the conveyances were made to Eva C. to enable her to hold the property against George W.'s heirs in case of his death, he being in feeble health and wishing that it should go at his death to his wife and not to his heirs; that George W. was not indebted to any one at the time of the several purchases and transfers, and has never owed any debts, so far as appears, for which claim has been made against his property, except the "debt" for which this action was brought; that none of the conveyances were made by the defendants with a view of defeating the claim of the plaintiffs, and all, save the deed to the plaintiffs of the Hunting farm, antedated the defendants' acquaintance with the plaintiffs. [1, 2] Plaintiffs claim that on these facts they are entitled to a decree enabling them to satisfy the execution out of the property as belonging to George W. The argument is that there is no finding that Eva C. had any separate estate; that money earned by her during coverture belonged to the husband in the absence of an agreement to the contrary; that there is no finding of a gift to her of the money deposited in her name or of the property conveyed to her; that the taking of title in her name on the findings did not change the ownership of the property so long as George W. lived; that in the circumstances the inference is that the property still belongs to him. But all inferences to be drawn from the facts found are against the plaintiffs, as the decree is for the defendants. It is unnecessary to consider whether the facts found show a valid gift to Eva C. It is enough to say that on the facts found, supported by such inferences as could reasonably be drawn therefrom, we cannot disturb the decree on the ground that Eva C. holds the title to the "Hermitage" property

On this phase of the bill defendants' answers, which are several, deny all allegations, except that it is admitted that George W. acted as Eva C.'s agent in the sale of the Hunting farm. Defendant Eva C. avers in her answer that if George W. made any false representations in the sale of the farm, she was not informed thereof, and they were without authority from her. Though admitting certain proceedings in the action at law, she avers that she is not bound thereby, not having been a party. It is not claimed that plaintiffs waived this ground of relief. On the contrary, excerpts of the testimony before the chancellor incorporated into the record indicate unmistakably that they were relying upon it. Plaintiffs offered to show by Eva C. that she knew of the trade negotiated for her by George W., and in that connection stated fully the purpose of the offer, which related to this ground of relief. The chancellor declined to go into the question of fraud at the time of the sale or to hear evidence, as bearing on her present liability,

excluded, and the plaintiffs excepted. This there was no legal liability; so, as to her, exception will be considered later.

[3] It is evident that the case is not ripe for decree on this branch. Several questions and among them the question whether there was fraud in the farm transaction, were put in issue by the pleadings. Eva C. is not concluded by the judgment in the suit at law, not having been a party. The hearing before the chancellor having been limited to matters affecting the right of plaintiffs to satisfy the judgment out of property held by Eva C. in fraud of creditors, the findings are not broad enough in respect of other matters to afford a basis of a decree in favor of the plaintiffs. The exception saved is to the rejection of the offered evidence, and not to the ruling of the chancellor limiting the inquiry; but, as it becomes necessary to reverse the decree on that exception, we notice defendants' claims with reference to that matter.

equity affords no remedy. The maxim is not capable of any such application. See 1 Pom. Eq. Jur. §§ 425–427.

[6] Plaintiffs brief certain exceptions taken at the trial before the chancellor. Defendants insist that the exceptions are not here because not filed in the court below. It appears from the files in the case that after the findings of fact were filed the chancellor made, and filed an order, to which the transcript of the exceptions taken by the plaintiffs at the trial were attached:

"In this case the following exceptions to the admission and rejection of evidence may be filed with the findings of fact already on file, and may be treated as part thereof."

Though lacking the usual formality of exceptions to the findings, the papers thus filed may fairly be regarded as the equivalent of exceptions thereto, and it is apparent from the record that the chancellor so treated them. It is clear that the exceptions were not waived, but were insisted upon and considered in making up the decree. In the circumstances we regard what occurred as a substantial compliance with the requirements of P. S. 1268, and that the exceptions were saved to the plaintiffs.

should be noted that unless P. S. 1268 is held

[4] Defendants insist that the liabilities of Eva C. in the matter of the Hunting farm trade have been finally determined in the suit at law. Rowley et ux. v. Shepardson et ux., 83 Vt. 167, 74 Atl. 1002, 138 Am. St. Rep. 1078. At the outset Eva C. was joined as defendant in that action. There was judgment below against both defendants. It was held on review in this court that Eva C.'s liability [7] There seems to be want of uniformity was to be measured, not by the statute en- of practice in the matter of exceptions taken larging the powers of married women, the during the trial by the court of chancery. It farm in question not being her separate prop- to apply to trials of questions of fact by the erty, but by the common law; and that she was not liable at common law for the tort of chancellor, there is no provision of law for her agent in the sale of the farm, it being bringing to this court questions regarding the admissibility of evidence. We again take ocbased upon her contract, and not a tort sim-casion to say that such a trial by the chanpliciter. The reason for this result is that as cellor is like a trial by a special master, and at common law a married woman cannot that good practice, if not the only practice make a contract, personally nor by her agent, to make questions in regard to the admission that will bind her so that a judgment upon and rejection of evidence available on review, it can be rendered against her person, no requires that such questions be reserved by liability at law rested upon her for a tort exceptions to the chancellor's findings filed in founded on such contract. Rowley et ux. v. the court below in accordance with P. S. Shepardson et ux., 83 Vt. 167, 171, 74 Atl. 1268. See Barber v. Bailey, 86 Vt. 219, 222, 1002, 138 Am. St. Rep. 1078; Russell v. 84 Atl. 608, 44 L. R. A. (N. S.) 98. Phelps, 73 Vt. 390, 395, 50 Atl. 1101.

During the cross-examination of Eva C. the plaintiffs offered to show by her certain conduct of herself and her husband when in Boston, Mass., with reference to the suit at law then pending in Windham county court, as bearing "upon the good faith of the dealings of these parties." Later substantially the same offer was made "as bearing upon the credibility of this witness and of the other defendant." Both offers were excluded and exceptions noted. It would require too much space to give the offers in full. Upon careful examination they are found to contain nothing pertinent to the issues on trial. They were of such a character that the chancellor might properly exclude them as outside legitimate cross-examination.

[5] It does not follow as the defendants argue that because of that decision the plaintiffs must be denied the relief now sought. If so, what was intended only for a shield may become an effective weapon of offense. In the absence of a remedy at law the court of equity has ample jurisdiction to deal with a situation such as is presented in this case, and on proper showing can grant the plaintiffs relief against the fraud of Eva C.'s agent, not because of any liability at law for the torts of her agent in dealing with her property not held to her sole and separate use, but because it would be grossly inequitable for her to profit by the fraud of her agent which she ratifies by retaining the avails thereof after notice of the fraud. See [8] In further cross-examination of the Paine v. Slocum, 56 Vt. 504, 508. Defendants same witness plaintiffs asked, referring to invoke the maxim "Equity follows the law," the negotiations for the sale of the Hunting and deduce therefrom that as to Eva C. farm: