(115 A.) undertake to punish itself for any departure by the imposition upon itself of fines and penalties or to permit any other sovereignty to punish it. * "The purpose for which the government permitted itself to be sued was compensation, not punishment. In issuing General Order No. 50, the Director General was careful to confine the order to the limits set by the act. "Wherever the law permitted compensatory damages, they may be collected against the carrier while under federal control. had been no taking over by the government, from their duty under such law; but it did not save for the immunity of the physical property from levy and the power of the President to regulate suits in the public interest as by fixing the venue, or the time for trial. If the cause of action arose while the government was operating the system, the 'carrier while under federal control' was nevertheless to be liable and suable. This means, as a matter of law, that the government or its agency for operation could be sued, for under the existing law the legal person in control of the carrier was responsible for its acts. See Gracie v. Palmer, 8 Wheat. 605, 632, 633, 5 L. Ed. 696, 703. "But double damages, penalties and forfeiThe title by which suit should be brought-the tures, which do not merely compensate but punperson who should be named as defendant-ish, are not within the purview of the statwas not designated in the act. In the absence ute." of explicit direction, it was perhaps natural that those wishing to sue the carrier should have named the company as defendant when they sought to hold the government liable. It doubtless seemed, as suggested in McNulta v. Lochridge, 141 U. S. 327, 331, 332, 12 Sup. Ct. 11, 35 L. Ed. 796, 799, 800, that suit should be brought against the transportation company 'by name "in the hands of" or "in the possession of" a receiver,' or Director General. All doubt as to how suit should be brought was cleared away by General Order No. 50, which required that it be against the Director General by name. "As the Federal Control Act did not impose In disposing of the claim that the Director General was liable for the penalty imposed by the Arkansas statute the court says: We have quoted thus at length from the opinion to show the comprehensive scope which the court gives to section 10 of the Federal Control Act, as well as the care taken to point out that so far as the provisions of the Director General's orders are upheld they are within the limits set by the act. In view of what is there said, there can be no doubt that it was not error to hold the Director General liable as trustee, unless General Order 43 stood in the way of so doing. The point made that trustee process is expressly prohibited by the provision that "no process, mesne any liability upon the companies on any cause of action arising out of the operation of their or final, shall be levied systems of transportation by the government, against any property under federal control," the provision in Order No. 50, authorizing the is not well taken. While such process opersubstitution of the Director General as de-ates as an attachment of the fund pending fendant in suits then pending, was within his the determination of liability, as regards the power, the application of the Missouri Pacific trustee it is primarily an action in personam, Railroad Company that it be dismissed from brought in the plaintiff's name in the right this action should have been granted, and the of the defendant, and not a "levy" within the judgment against it should, therefore, be requoted provision of the Transportation Act versed." (41 Stat. 456). Hence the Director General is subject to such initial process, and to judgment if found indebted. Hines v. Minor (Ga. App.) 105 S. E. 851. We are not now concerned with questions which might arise after See Le Clair v. Montpelier & "The contention is rested specifical- judgment. ly upon the clause in section 10, to the effect Wells River R. Co., 93 Vt. 92, 101, 106 Atl. that the carriers 'shall be subject to all laws 587. Ample provision has been made by Conand liabilities as common carriers, whether aris-gress for the payment of such judginents ing under state or federal laws or at common without resort to the levy prohibited by the law,' and the provision in section 15 (section statute. 311540) that the lawful police regulations of the several states' shall continue unimpair-force was assumed at the argument; but it The validity of General Order 43 while in ed. By these provisions the United States submitted itself to the various laws, state and fed- may be doubted whether it could be upheld, eral, which prescribed how the duty of a com- at least so far as it undertook to forbid the mon carrier by railroad should be performed, bringing of trustee process on claims othand what should be the remedy for failure to er than for employees' wages. It is fundaperform. By these laws the validity and ex- mental that the power and authority of the tent of claims against the United States arising Director General of Railroads cannot exceed out of the operation of the railroads were to that which could lawfully be vested in him be determined. But there is nothing, either by proclamation or order of the President, in the purpose or the letter of these clauses, and he in turn receives his power and auto indicate that Congress intended to authority over the subject-matter here concernthorize suit against the government for a pen alty, if it should fail to perform the legal ob-ed by and through the acts of Congress emligation imposed. The government undertook powering him to take control of and operate as carrier to observe all existing laws; it the transportation systems of the United undertook to compensate any person injured States. Whatever general language is used President must be construed as given for the purpose of enabling him to carry out their provisions, and not to enable him, either by himself or any appointee of his, to set aside any provision of the legislative will, or to take away any rights or privileges granted to or recognized as validly existing in third persons by such legislation. The legislative declaration is the paramount authority, and must control. Franke v. Chicago & N. W. R. Co., 170 Wis. 71, 173 N. W. 701. [3] The record is meager, so far as it relates to the question of interest. It states that the claimed liability of the trustee to the defendant arose by reason of the loss of certain goods consigned by defendant for shipment over the lines of the trustee and by reason of certain transportation charges, in excess of legal charges, which the defendant was obliged to pay; and that it was agreed that the right, if any, against the trustee arose after March 1, 1918, during As construed by the court in the Ault Case, the period of federal control. It is said in section 10 of the Federal Control Act preserv- the brief for the trustee that it was agreed ed to the public the rights and remedies en- that the amount due on the first item of joyed at the time the railroads were taken the disclosure was $1,577.89, described as over by the President, except in so far as "amount of bill vouchered and held," and they might interfere with the needs of fed- $113.63 on the second item, described as eral operation. This indicates clearly how "freight overcharges by Raymond Cutting far the President or his representative was (under investigation)." The date to which authorized to go in curtailing by general or- the concession relates does not appear, but ders the remedies previously enjoyed by a it is admitted that at the time of service creditor, which leaves the justification of (January 29, 1919), the matters had been so General Order 43 to depend upon its necessi- | far investigated that the claims were liquity for carrying out the purposes for which dated. There is no express finding touching the President was authorized to take over the railroad systems of the country. The reason assigned for making the order gave color of authority, if it had been confined to trustee process affecting employees' wages; but it is not apparent how the use of the process in other cases could in any way interfere with the operation of the railroads under federal control. the matter of interest, but in the judgment rendered February 27, 1920, the court allowed interest on the claim for loss of freight from March 1, 1918, to February 1, 1920, thus treating the claim for loss of freight as bearing interest from the date of loss. It is argued that payment to the defendant was prevented by the trustee process, and that to charge the trustee with interest [2] But we do not find it necessary to rest while the suit was pending would be to penalthe decision on this ground. If the validity ize him for obeying the process. As to this, of the order while in force were admitted, it is enough to say that payment into court the result would be the same. G. L. 1937 of the sum due at the time of service would provides that a person or corporation may have relieved the trustee from further acbe summoned as a trustee of the defendant, cumulation of interest. While, as between and the goods, effects, or credits of the de- the plaintiff and defendant, the trustee is a fendant which are in the hands of such trus- mere stakeholder (Lyman v. Orr, 26 Vt. 119), tee at the time of the service of the writ the fact that he has been summond as such upon him, "or which come into his hands or does not change his liability respecting the possession before disclosure," shall thereby be payment of interest; nor should it, for the attached and held to respond to final judgment judgment against him as trustee is a disin the cause, except as elsewhere provid- charge from a subsequent demand by the ed. The Director General was duly summon- principal defendant. G. L. 2008. The ated as a supposed trustee. He then had in his taching creditors takes the place of the prinhands credits of the defendant which, the cipal defendant. Kettle v. Harvey, 21 Vt. order aside, were subject to attachment by 301. Whether a trustee is chargeable with such process. Subsequently, and before the interest depends upon whether the debt or question of his liability was before the court claim attached is one on which the princifor determination, the disabling order was pal defendant could demand interest at the revoked. The credits, if before exempt, time of service of the trustee process. If it thereupon assumed a new character, and in is then interest-bearing because overdue, the legal effect came into his possession at that running of interest is not interrupted by the moment as attachable credits. This accords service of such process; but when the dewith the construction of the statute to be mand was not on interest when attached, and found in Newell v. Ferris, 16 Vt. 135, where the trustee has received no interest on the it was said that the liability of the person fund, he is not liable for interest thereon summoned as trustee is determined accord- while the demand is locked up by the trustee ing to the state of facts at the time of trial. process. Oakes v. Buckman, 87 Vt. 187, 88 Spring v. Ayer, 23 Vt. 516; Seymour v. Coop- Atl. 736; Platt v. Continental Ins. Co., 62 er, 25 Vt. 141. It is clear that the court did Vt. 166, 19 Atl. 637; Baker v. Central Vernot err in holding the trustee chargeable, mont Ry. Co., 56 Vt. 302; Lyman v. Orr, which leaves for consideration the objection supra. Thus interest is properly allowed that interest should not have been included. I from the date of settlement on a claim pay (115 A.) from Hartford Municipal Court; Arthur G. Whitham, Judge. able immediately thereaftr, though demand- Exceptions [4] As showing that the claim for loss of freight was not interest-bearing at the time of service on the trustee, we are asked to take notice of a custom in handling freight claims, said to be too well understood to need statement, of not allowing interest. If the trustee relied upon such a custom to take the claim out of the ordinary rule respecting interest, it was incumbent upon him to show it. The fact would be one of which the court would not take judicial notice. It is axiomatic that on review reversible error must be made to appear. It necessarily follows that the record must exclude every reasonable presumption in support of the judgment. Whether the claim would or would not draw interest from the date of loss does not appear; but the shortage in the record is fatal, for we must presume in support of the judgment that the court found on sufficient evidence that it drew interest from that date. The decision in Missouri Pac. R. Co. v. Ault, supra, removes any doubt as to the right to charge the Director General of Railroads with interest when he is summoned as trustee, the same as a private person. It is there held that the damages recoverable in a suit against him while in control of the railroads may reasonably include interest. Judgment affirmed. (95 Vt. 359) ARMSTRONG v. MOORE. (No. 318.) (Supreme Court of Vermont. Windsor. Oct. 4, 1921.) 1. Courts 189(14)-Stay of proceedings on petition for new trial in municipal court interlocutory. Under the statute a stay of execution on petition for new trial in municipal court is simply interlocutory, granted without hearing, and continues until the final determination of the petition without further action of the court granting it. 2. Courts 189(14)-Stay on petition for new trial in municipal court renders writ of execution inoperative. An order of stay of proceedings in a petition for new trial renders a writ of execution wholly powerless and inoperative, as if it had been recalled or never issued. 3. Appeal and error 78 (6)-Exceptions improper where case not finished below nor proper judgment entered. Where on exceptions on a petition for new trial, judgment staying execution had been entered, but the case had not been finished nor a proper judgment entered, the case is improperly in the Supreme Court, and the exceptions will be dismissed. in which judgment by default was rendered Action by Hugh Moore against one Kinne against H. A. Armstrong, trustee, who pe titioned for stay of execution against him and for new trial, and from grant of the same Hugh Moore excepts. Exceptions dismissed. Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. Raymond Trainor, of White River Junction, for petitioner. Hugh Moore, of White River Junction, for petitionee. MILES, J. This is a petition to the Hartford municipal court, for a new trial on the ground of fraud, accident, and mistake. The petition was heard by the court, and certain of the petitioner's testimony was recited by the court; but no finding of fact was made thereon nor complete judgment rendered. The record simply shows the following: "Judgment that the execution against the trustee in said cause of Moore v. Kinne No. 270 be stayed." No judgment against the trustee is set aside nor is a new trial granted as prayed for in the petition, but simply an unlimited stay of the petitionee's execution is granted. The question of a new trial is left undecided. [1, 2] It seems unnecessary to state, in view of the plain language of the statute, that the stay of execution in petitions of this character is simply interlocutory, and is granted without hearing, as was done in this case, and continues until the final determination of the petition, without further action of the court granting it. The order of stay of proceedings rendered the writ of execution wholly powerless and inoperative. It was the same as if the execution had been recalljed or never issued. Jameson v. Paddock et al., 14 Vt. 491. The judgment recorded added nothing to the record already existing, and the question that was tried is left undecided. It may not be amiss to say that several cases coming of late from municipal courts to this court for review show little care as to their condition to be properly passed up on exceptions. It should be remembered that unless proper care be exercised in that behalf by such lower courts the interest of litigants, as well as of the state at large, may be jeopardized and injustice follow. [3] The case not having been finished in having been there rendered, the case is imthe municipal court, and no proper judgment properly here. Probate Court v. Chapin, 31 Vt. 373. Exceptions dismissed. [6. Criminal law 726-Remark of state's attorney, provoked by defendant's attorney, not reversible error. Defendant cannot complain of remark of state's attorney that he objected to "rotten poison" being put into the case, where the 1. Criminal law 1169(1)—Admission of evi- remark was provoked by improper statement dence to establish undisputed fact harm-amination of the defendant and another. made by defendant's attorney during his ex less. Admission of improper evidence to estab-7. Criminal law ~678(1)—Court erred in not lish an undisputed fact is harmless error. requiring state to elect. In prosecution for selling diluted milk, 2. Witnesses 287(1)-Redirect examination where complaint contained only one count and held proper. 99 state's evidence tended to show that milk deIn a prosecution for selling diluted milk, livered at the creamery on November 4, 6, where it appeared during cross-examination and 7 was diluted with water, and defendant of state witness that he had pleaded guilty to attempted to make a motion that the state a complaint for selling and furnishing milk di-elect the day on which a conviction of the luted with water, and he was asked if since crime charged would be asked, the court was that time he had not been to B.'s house and guilty of error in ruling, "The court leaves urged B. and his wife to plead guilty to a like that with the jury to determine from the evicharge and pay their fine, which he denied, dence in the case.' on redirect examination he was properly permitted to testify that the day he pleaded guilty to said charge he stopped at B.'s house on his way home, at the request of the sheriff, and told B. that the sheriff wanted to see him. 3. Criminal law 338(4, 5), 1169(1)-Evidence of acts to which defendant was not a party incompetent, but harmless. In prosecution for selling diluted milk, where health officer testified that in "picking up milk samples" he found milk that had been diluted with water and traced the milk to S. & W.'s creamery, over objection, and then testified that he went to such creamery and took samples of defendant's milk, which were later found to be diluted with water, the testimony as to "picking up milk samples" was incompetent, where it did not appear that milk belonged to defendant, but its admission was harmless, being merely a part of the narrative of how defendant's milk came to be examined. 4. Witnesses 8. Food 14-One selling diluted milk to creamery making butter guilty of offense. G. L. 5935, does not supplant G. L. 5907, where milk is sold to creameries, cheese factories, etc., the purpose of the latter being to insure the buyer of milk against an adulterated commodity, and the purpose of the former to apprise the seller of milk to creameries of milk or cream delivered by him, and one violates G. L. 5907, by selling diluted milk to a creamery making butter. 9. Criminal law 404(4), 741(1)-Samples of diluted milk competent evidence, though statutes were not followed and weight of evidence was for the jury. In a prosecution for selling diluted milk, samples of defendant's milk were competent evidence, though provisions of G. L. 5909, 5910, were not followed when the samples were taken, and court properly refused to charge that such noncompliance must be taken by the jury as weakening the value of the tests as evidence; it being for the jury, rather than 414(1)—Evidence held admis- the court, to say what weight should be given sible to corroborate state's witness. Where state's witness on cross-examination denied that he had urged a certain person to plead guilty to sale of diluted milk, and testified that he stopped at such person's house on his way home, at the request of the sheriff, and told him the sheriff wanted to see him, testimony of sheriff that he told the state's witness to stop and tell such person to come to town was admissible, as it tended to corroborate the state's witness. 5. Criminal law 1169(9)-Admission of evidence held harmless. Where witness had already testified to facts from which no other understanding could be deduced than that witness knew that sheriff had sent for her husband, it was not prejudicial error to require her to state whether or not she understood from the statement made by the person sent that such person notified her husband at the request of the sheriff, as against an objection that it called for the witness' understanding. it. 10. Food 14-Knowledge of dilution of milk immaterial. Where owner of milk employed another to carry it to a creamery, and the employee watered the milk while on the way to the creamery, without the owner's knowledge or consent, there was a violation of G. L. 5907; knowledge, or guilty intent, being immaterial. Exceptions from City Court of Burlington; Jedd P. Ladd, Judge. Ralph H. Field was convicted of selling and furnishing milk diluted with water, and he brings exceptions. Reversed and remand ed. Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. Ezra M. Horton, State's Atty., of Burlington, for the State. Martin S. Vilas, of Burlington, for respond ent. (115 A.) SLACK, J. The respondent stands convict- f [4] Sheriff Allen, called as a witness by ed of selling and furnishing milk diluted with the state, testified, in substance, subject to the water, in violation of G. L. 5907. The sale respondent's objection that the evidence was complained of was to Charles Soules and Lu- immaterial, irrelevant, and incompetent, that cius White, who were operating a creamery he asked Murray, the day the latter pleadunder the firm name of Soules & White, and [ed guilty, to stop at Bisson's house on his way was made November 7, 1920. home, and tell Bisson that he (Allen) had a warrant for him and asked him to come to Burlington the next day. This evidence tended to corroborate Murray on that subject, and was admissible for that purpose. One Murray carried the respondent's milk, milk that belonged to one Bisson, and his own, to the creamery each morning. Murray was hired by the respondent to carry the latter's milk to the creamery. The respondent claims that if his milk was diluted when delivered to the creamery it was diluted by Murray after it left respondent's farm. [5] Mrs. Bisson, called as a witness by the respondent, testified that Murray came to their house after he pleaded guilty to watering his milk and told her and her husband "that [1] The state called Murray as a witness, the sheriff wanted us to come over that day, and he was permitted to testify, subject to and that we had better come and pay, for it respondent's objection and exception that the would cost us less money"; and that he urgevidence was immaterial, that all of the milked her and her husband "to come in and pay delivered by him to the creamery November 6 his fine." On cross-examination she testified and 7, including his own, the respondent's, that Murray said that Sheriff Allen sent for and Bisson's, was sold by weight. It is now her husband and that Murray said "it would urged that this was an attempt to prove that be better for him to come, and might save respondent's milk was sold by weight by him money, than it would to have the officer showing that the witness' milk was sold that come for him." She was then asked if she way. It appeared from the undisputed evi- understood from that statement that Murray dence of Lucius-White, received without ob- came to notify her husband at the request jection, that the creamery bought and paid of Sheriff Allen, and, subject to the respondfor respondent's milk by weight. This being ent's objection that the evidence was immaso, the respondent's position is this: Im-terial, irrelevant, and incompetent and called proper evidence was admitted to establish an for the witness' understanding, answered, undisputed fact-which is harmless error. "Yes." That the answer could not have prejState v. Warner, 91 Vt. 391, 101 Atl. 149. udiced the respondent is too plain to admit of argument. [2] It appeared during the cross-examination of the same witness that he had pleaded guilty to a complaint for selling and furnishing milk diluted with water to Soules & White, November 7. He was afterwards asked if since that time he had not been to Bis son's house and urged Bisson and his wife to plead guilty to a like charge and pay their fine, which he denied. On redirect examination he was permitted to testify, subject to the respondent's exception, that the day he pleaded guilty to said charge he stopped at Bisson's house on his way home, at the request of Sheriff Allen, and told Bisson that Allen wanted to see him. In view of the cross-examination this explanation of why he was at Bisson's house was competent. from which no other understanding was deThe witness had already testified to facts ducible. Therefore reversible error is not shown. State v. Williams, 94 Vt. 423, 111 Atl. 701. This answer was harmless, too, because the fact that Murray went to see Bisson at Allen's request was undisputed. State v. Warner, supra. [6] Respondent's exception to the remark of the state's attorney that he objected to "rotten poison" being put into the case is unavailing, in the circumstances. It is apparent from what appears in the transcript, which is part of the exceptions, that the remark excepted to was provoked by improper statements made by respondent's attorney during his examination of the respondent and one Yantz. Since this is true, the respondent cannot be heard to complain. Douglass & Varnum v. Village of Morrisville, 89 Vt. 393, 433, 95 Atl. 810. [3] Dr. Ravey, health officer for the city of Burlington, was called by the state, and after testifying that in "picking up milk samples" he found milk that had been diluted with water, was permitted to testify, subject to respondent's exception, that he traced that milk to Soules & White's creamery. He then [7] The complaint contains only one count. testified that on the mornings of November The state' evidence tended to show that re6 and 7 he went to their creamery and took spondent's milk delivered at the creamery samples of respondent's milk, which were lat- November 4, 6, and 7 was diluted with water. er found to be diluted. It not appearing that The respondent attempted to make a motion the milk which the witness found when "pick- that the state elect the day on which a coning up milk samples" belonged to the reviction of the crime charged would be asked, spondent, the evidence objected to was in- but whether he succeeded in doing so is open competent, but its admission was harmless; to grave doubt. Enough was said, however, it being merely part of the narrative of how so that the court ruled, at the close of all the |