[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2944-2947; Dec. Dig. § 706.*] ception to the overruling of a motion in arrest [ence to the testimony-and none other is of judgment will not be considered. shown by the bill of exceptions-is only by the defendant in his motion, and such a reference does not bring the testimony before this court. Sowles' Adm'r v. Sartwell, 76 Vt. 70, 56 Atl. 282; Royce v. Carpenter, 80 not before us, and the exception to the overVt. 37, 66 Atl. 888. The evidence is therefore ruling of the motion is not considered. Exceptions from Windham County Court; William H. Taylor, Judge. Action on the case by Fred C. Rand against Peter Bordo for exchange of horses. Plea, the general issue. Verdict and judgment for plaintiff after trial by jury and defendant excepts. Defendant moves in arrest of judgexcepts. Defendant moves in arrest of judgment and to the overruling of the motion, he excepts. Judgment affirmed. Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ. Ryder & Graham, for plaintiff. Bert E. Cole, for defendant. WATSON, J. The bill of exceptions states that the declaration alleges that the defendant, knowing a certain brown mare to be unsound and infected with a certain disease, by warranting said mare to be sound and free from defects, and by concealing certain defects and unsoundness, fraudulently and deceitfully induced the plaintiff to make the exchange, and thereby deceived and defrauded the plaintiff. [1] It appeared that it was an even exchange; and the plaintiff's evidence tended to show that the mare he received of the defendant, if sound and free from defects, as defendant represented, would have been worth substantially as much as the horse which the plaintiff gave in exchange for her. Under objection and exception the plaintiff was permitted to show the kind and value of the horse he let the defendant have. In sub stance the objection was that the evidence was immaterial. But such evidence was material, as bearing on the trade made. If the mare, in consequence of her unsoundness and defective condition, was of much less value than the horse, and if she would have been substantially of the same value as the horse, had she been sound and free from defects, it is more likely that the defendant made representations concerning her as the plaintiff claimed, and as his evidence tended to show. Bedell v. Foss, 50 Vt. 94; State v. Donovan, 75 Vt. 308, 55 Atl. 611. [2] Subject to the same objection, a witness for the plaintiff gave testimony showing the defective condition of the mare on an occasion when she was being driven by the defendant's son. The exceptions do not show when this occasion was. Error does not appear. [3] At the close of the evidence the defendant moved for a verdict on seven different grounds stated, each pertaining to the evidence. As a part of the third and fourth grounds, each, the motion states: "The plaintiff's testimony is referred to." This refer [4] The defendant excepted to the overruling of his motion in arrest of judgment; but, since neither the declaration nor a copy thereof has been furnished us, this exception is not considered. Judgment affirmed. A charter fee would not accrue to the state upon the consolidation of several existing corporations, so as to form a new corporation by virtue of P. S. 4287, as amended by Acts 1908, No. 103, providing that "three or more persons of age" may form a corporation; the word "persons" not including corporations. [Ed. Note.-For other cases, see Corporations, Dec. Dig. § 585.* vol. 6, pp. 5322-5335; vol. 8, p. 7752.] 2. CORPORATIONS (8 585*)-CHARTER FEE. 3. CORPORATIONS (§ 28*)-DE FACTO CORPO RATIONS. Acts 1898, No. 19, as originally enacted, referred to "any body or persons" seeking incorporation, etc., but as revised and re-enacted incorporation by a special act of the General by P. S. 800, provided that "persons" seeking Assembly should, before the bill was introduced for that purpose, deposit as provided the fee "persons" to be applied to bodies corporate and therein specified. P. S. 26 permits the word politic. In 1896 the People's Gas Light Company, the Rutland Street Railway Company, the Vermont Internal Improvement Company, the Secretary of State an agreement for consoliand the Chittenden Power Company filed with dation, the consolidated company being styled the Rutland Railway, Light & Power Company, and all the property being turned over to it, 1908, No. 303, § 1, legalizes all acts and conbut it had never paid any charter fee. tracts whereby the Rutland Street Railway Company, the People's Gas Light Company, land City Electric Company consolidated with the Chittenden Power Company, and the Rutthe Vermont Internal Improvement Company. Acts Vt.) STATE v. RUTLAND RY., LIGHT & POWER CO. Section 2 provided that all the charter rights, powers, etc., conferred upon the five companies should be conferred upon the Rutland Railway, Light & Power Company. Held, that the word "persons" used in section 800 included previously existing corporations, as well as natural persons; and when Act No. 303 became a law the Rutland Railway, Light & Power Company became a corporation by special act, making the charter fee, which should have been deposited when the bill was introduced, belong to the state, but if it was not deposited when the bill was introduced the state might thereafter collect it by a suit against the consolidated company. [Ed. Note.-For other cases, see Corporations, Dec. Dig. § 585.*] 5. STIPULATIONS (§ 14*)-CONSTRUCTION. In an action by the state to recover a charter fee from a corporation, incorporated by a special act of the Legislature by the consolidation of several corporations, the parties stipulated that the state's claim was that there was due to it a charter fee or additional tax from the consolidated corporation, or one of the formerly existing corporations, or both, and that defendants claimed that no additional charter tax is by law due from them to the state. Held, that the stipulation covered a claim against the consolidated corporation for a charter fee which should have been paid before the special act of incorporation was introduced in the General Assembly, but which was not in fact then paid. [Ed. Note.-For other cases, see Stipulations, Dec. Dig. § 14.*] 253 Senate, and went to the Governor for his approval. While this bill was awaiting the Governor's signature, the treasurer of the state made a claim that the defendant owed the state an unpaid charter tax. This claim was denied by the defendant, but, rather than have the approval of the bill delayed or imperiled by it, the defendant entered into a stipulation with the Attorney General, whereby it was agreed that the defendant should deposit the sum of $500-the maximum sum for which it could be liable-with the state treasurer to await the result of this friendly suit, to be brought in Windsor county for convenience, and in case the state prevailed therein this deposit was to be used to liquidate the judgment; otherwise it was to be returned. The deposit was made, and thereupon the pending bill was approved by the Governor. This suit was brought July 20, 1909; specification covering a charter fee of $500 was filed August 13, 1909; defendant's plea and notice were filed January 1, 1910: an agreed statement of facts was filed, and a trial by court had thereon. Judgment was rendered for the plaintiff for $500 to which the defendant excepted. The defendant claims that each of the con Exceptions from Windsor County Court; solidating corporations had been duly authorE. L. Waterman, Judge. Assumpsit on the common money counts by the State of Vermont against the Rutland Railway, Light & Power Company. Heard on an agreed statement of facts. Judgment for plaintiff, and defendant excepts. Af firmed. Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ. John G. Sargent, Atty. Gen., and Homer L. Skeels, State's Atty., for the State. T. W. Moloney, for defendant. ized by the Legislature to enter into the consolidation agreement, and that the result was a new corporation, legally created, vested with all the rights, privileges, franchises, and property of the old corporations, which were wiped out by the transaction. The state does not challenge the authority of the constituent companies, though an examination of the acts referred to in support of their authority discloses that interesting, if not difficult, questions would be presented, if we were called upon to investigate that subject. But whether this attempted consolidation resulted as the defendant claims or was ineffective for want of legislative authority in some or all of the parties thereto, is a question we are not called upon to decide. The consolidation, if valid, did not alone entitle the state to a charter fee. POWERS, J. In 1896, four corporations having their principal offices at Rutland executed and filed with the Secretary of State an agreement for consolidation. The constituent companies were the People's Gas Light Company, the Rutland Street Railway Com- [1] No fee would accrue under P. S. 4287, pany, the Vermont Internal Improvement which provides (as amended by Acts 1908, Company, and the Chittenden Power Com- No. 103) that three or more "persons" may by pany, and the consolidated company was articles of association form a corporation, bestyled the Rutland Railway, Light & Power cause it refers to natural persons only, and Company. In accordance with the consoli- not to corporations. This is apparent from dation agreement, the stock of the consoli- the requirement that the persons associatdated company was issued in exchange for ing shall be "of age," which could not, of that of the constituent companies, and all course, refer to artificial persons. And, were the property of the latter was turned over to these qualifying words omitted from the statthe former. Each of the constituent com- ute, the result would be the same. Thus it panies had paid all charter fees and license was held, in Factors' etc., Ins. Co. v. New taxes called for by the law, but the defend- Harbor Protection Co., 37 La. Ann. 233, that ant never paid a charter fee, save as herein- a corporation was not a "person," within the after stated. In 1908, a bill, which finally meaning of a statute authorizing the formabecame No. 303, Acts of 1908, was introduced tion of a corporation by not less than six into the Legislature, passed the House and persons. And in Denny Hotel Co. v. Schram, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Nor would a fee accrue under P. S. 800, for corporations formed by the consolidation of pre-existing corporations are not therein provided for. While it is true that a corporation so formed becomes a new and distinct corporation-assuming that the consolidation is legally accomplished-and that by means of a contract entered into between its constituent companies, it derives its corporate character from the Legislature, through the act or acts authorizing the consolidation. So it is held that a special act authorizing consolidation contravenes a constitutional provision against the creation of corporations by special act. Shields v. Ohio, 95 U. S. 323, 24 L. Ed. 357. Though such a corporation is, in this sense, created by a special act of the Legislature, it is apparent that it is not covered by P. S. 800, for it cannot be known when the legislative authority is granted, or at any other time prior to the consolidation, whether the authority will be made use of and a consolidation effected, or its terms, or the amount of the capital stock of the consolidated company, which is made the basis of the amount of the tax required. And besides the provision for prepayment is wholly inapplicable and impossible in the case of a consolidated corporation so brought into existence. 6 Wash. 134, 32 Pac. 1002, 36 Am. St. Rep. [sult of revision. The language of the origi130, it was held that a statute empowering nal act indicates an appreciation of the fact two or more "persons" to form a corporation that circumstances might arise which would did not authorize a corporation to become a impel a corporation, through doubt of the lesubscriber to the stock of another corpora- gality of its organization, or for some other tion, though another statute provided that reason of its own, to seek a special act of the the term "person" might be construed to in- Legislature confirming or declaring, in exclude a corporation. press terms, its corporate character. An examination of No. 303 discloses that the first section thereof confirms and legalizes all acts and contracts whereby the Rutland Street Railway Company, the People's Gas Light Company, the Chittenden Power Company, and the Rutland City Electric Company consolidated with the Vermont Internal Improvement Company. This is the first time the name of the Rutland City Electric Company appears in any of the proceedings. But it may well be taken that this was an attempt to ratify by legislative action the consolidation hereinbefore discussed. The second section of the act provided that all the charter rights, franchises, powers, and privileges conferred upon the five companies just named are continued in force and conferred upon the defendant company, and that each of the constituent companies should cease to exist. When this bill was introduced into the Legislature, the defendant, or the constituent companies, or both, were "seeking incorporation by special act of the General Assembly," and it made no difference whether the defendant was then a legal corporation or not. When the act became a law, the defendant was a corporation by special act of the Legislature, regardless of what its previous status was. We must assume that a sufficient reason existed for this application; with what that reason was, we have no concern. Previous thereto, the statutory deposit should have been made. When the act became effective, the deposit would have become the money of the state. Not having been made in advance, it can now be collected in this suit. There is no merit in the defendant's contention that the effect of P. S. 800 is not to require a charter fee from all corporations chartered by special act. It is the same as it would be, had the section provided that all such corporations should pay the fee, and then required that it should be paid in advance. The acceptance of a charter specially granted, or of a confirmatory act like the one here involved, carries with it an implied promise to pay the fee. [2-4] If the attempted consolidation was illegal for want of legislative authority, no fee could accrue to the state, because not even a de facto corporation resulted; such a corporation can exist only when there is a law under which a de jure corporation could be created. Noyes, Intercorp. Relations, §§ 17, 92. American Loan, etc., Co. v. Minnesota, etc., R. Co., 157 Ill. 641, 42 N. E. 153. It follows that if the state is entitled to a charter fee from the defendant, it accrued upon the passage of No. 303, Acts of 1908, by force of P. S. 800, which provides that "persons seeking incorporation by special act of the General Assembly" shall deposit, as therein provided, the fee therein specified. Here, again, use is made of the term "persons," but not, we think, in the restricted sense. By P. S. 26, it is provided that the word "persons" may extend and be applied to bodies corporate and politic; and the section under consideration was, we think, intended to cover all who apply, be they natural persons or corporations previously existing. We are confirmed in this opinion by the fact that when this statute was enacted, (No. 19, Acts of 1898), it read, "any body or persons seeking incorporations," etc.; the [5] Nor can we sustain the defendant's claim that the judgment below was based upon a different claim than that covered by the stipulation. The defendant insists that the stipulation only relates to a fee or fees which had become payable to the state before the introduction of the bill which be came No. 303, while the judgment was rendered for a fee which accrued to the state upon the passage of that act. The stipulation refers to a claim on the part of the Vt.) BIXBY v. ROSCOE 255 tax or an additional tax" from the defend- | sides, that Dingle was the person who bought ant, or the improvement company, or both. the monument from defendants. It also states that "the said companies claim that no additional charter tax is by law due from them to the state." The specification filed by the plaintiff recites that the plaintiff "seeks to recover the sum of five hundred dollars due the plaintiff from the defendant for defendant's charter fee." The language of the stipulation is broad enough to cover the claim on which the judgment was based, for, as we have seen, the fee was then due the state, since it was entitled to have it paid before the pending act became a law. Affirmed. Where, in an action for the price of a monument purchased by defendants for resale to D., defendants denied an acceptance because certain dark stains afterwards appeared on the monument, evidence that after it had been set up one of the defendants received from D. a complaint that the monument was discolored was admissible to show that there was no unreasonable delay in repudiating the purchase. [Ed. Note.-For other cases, see Sales, Cent. Dig. 485; Dec. Dig. § 181.*] Exceptions from Washington County Court; Alfred A. Hall, Judge. Action by H. P. Agostines & Co. against C. E. Fenn & Co. Judgment for defendants, and plaintiffs bring exceptions. Affirmed. Argued before MUNSON, WATSON, HASELTON, and POWERS, JJ. Richard A. Hoar and Earle R. Davis, for plaintiffs. Edwin L. Scott and J. Ward Carver, for defendants. MUNSON, J. The suit is to recover the price of a monument which was duly delivered. Defendants claimed that certain dark stains afterwards appeared on it, and plaintiff claimed that the stains, if any in fact existed, got into the granite after it was shipped. The court admitted evidence, contained in the deposition of one of the defendants, to the effect that after the monument was set up he received from W. J. Dingle a complaint that it was discolored. This was objected to as being a complaint from a party foreign to the contract, and therefore immaterial; and it was admitted solely for the purpose of showing the basis of the defendants' action. It is evident from the charge, which is referred to generally, that the action of the defendants which the court here referred to was the opening of a correspondence with the plaintiffs about the claimed defect. It appeared on argument, from the statements of both It may be gathered from the papers that the plaintiffs are granite manufacturers in Barre, that the defendants are granite dealers in Chicago, and that Dingle lives in Sandusky, Ohio. The monument was evidently bought by Dingle for a particular customer, for it appears from the contract between the plaintiffs and the defendants that the name letters were cut by the plaintiffs. These facts seem to indicate that the monument was shipped directly from Barre to Sandusky, and was set up without having been seen by the defendants. The monument was erected in the cemetery, and remained standing until after the trial. It appears from the charge that the question of acceptance was one of the matters submitted. The plaintiffs claimed an acceptance on the ground that the purchase was not repudiated within a reasonable time. So the defendants were in the position of denying that there was an acceptance of a monument which was actually erected and still standing. In this situation it was important for them to show that, as soon as they were notified of the existence of a defect which showed that the monument was not what the contract called for, they brought the matter to the attention of the plaintiffs. The defendants' evidence was simply that he received a complaint from the purchaser that the stone was discolored. It is apparent from the charge that this complaint was the basis of the defendants' complaint to the plaintiffs, and that the claimed discoloration was the subject of the ensuing correspondence and the ground of defense on trial. We think the evidence of the initial complaint was admissible as bearing upon the question of acceptance, in that it tended to show that there was no unreasonable delay in repudiating the purchase. Judgment affirmed. (85 Vt. 105) BIXBY, Collector, v. ROSCOE et al. (Supreme Court of Vermont. Chittenden. Oct. 9, 1911.) 1. APPEAL AND Error (§ 241*)-MOTION CONSTRUED AS BY PARTIES AND COURT BELOW. A motion for a verdict will be considered by the Supreme Court as made on a certain such construction, and having been in the court ground, in addition to others, it being open to below so construed by both parties, and by the court in rendering its decision. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1413-1416; Dec. Dig. § 241.*] 2. TAXATION ($ 204*)-EXEMPTION — Offer— ACCEPTANCE-PRACTICAL CONSTRUCTION. Even if it be the general rule that an offer of a town to exempt property invested in manufacturing, naming no time for acceptance, must to exempt five years from commencement of be accepted in a reasonable time, yet the offer business being treated by both parties as open •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes A town being authorized by V. S. 365, to vote exemption from taxation, not exceeding ten years from the commencement of business, of property invested in manufacturing, its vote to exempt for a term not exceeding five years is to be construed as for such time "from the commencement of business." [Ed. Note. For other cases, see Taxation, Cent. Dig. § 332; Dec. Dig. § 204.*] 4. TAXATION (§ 206*)-EXEMPTIONS-ACCEPTANCE OF OFFER - WITHDRAWAL OF EXEMP TION. One having removed his manufacturing establishment to a town on its vote to exempt it from taxation for five years, the exemption cannot be withdrawn in that time. [Ed. Note. For other cases, see Taxation, Cent. Dig. § 338; Dec. Dig. § 206.*] 5. TAXATION (8 594*)-SWEARING TO INVENTORY QUESTION FOR JURY. It being a material question, in an action to recover taxes assessed against defendant, whether his inventory, purporting to have been sworn to by him before a lister, was sworn to him, the listers having made up his list based on his inventory, whereas, if he willfully omitted to swear to it, it was, under P. S. 561, the listers' duty, performance of which was essential to validity of the list, to ascertain as best they could the amount of his taxable property, appraise it at its true value and double the amount so obtained, the question of its having been sworn to should have been submitted to the jury, the evidence in respect thereto being conflicting, and his tending to show that he re fused to swear to it. [Ed. Note. For other cases, see Taxation, Cent. Dig. § 1217; Dec. Dig. § 594.*] 6. EVIDENCE (§ 471*)-CONCLUSIONS OF FACTS. The question whereby a town clerk is asked to state whether or not the warning for an annual town meeting was posted in a public place, and, if so, where, objected to as incompetent, is proper. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*] 7. WITNESSES (§ 236*) - UNRESPONSIVE ANSWER-EFFECT. A proper question is not made improper by an unresponsive answer. [Ed. Note. For other cases, see Witnesses, Cent. Dig. § 822; Dec. Dig. § 236.*] 8. TOWNS (§ 19*)-TowN MEETING-POSTING OF WARNING EVIDENCE. That the annual meeting of the legal voters of a town was held at the time and place specified in a warning therefor 15 days after its recording, and that officers were elected and business was transacted pursuant to the articles therein, is prima facie evidence that the warning was posted as required by law. [Ed. Note.-For other cases, see Towns, Cent. Dig. §§ 24-27; Dec. Dig. § 19.*] 9. TAXATION (§ 411*)-ABSTRACT OF INDIVIDUAL LIST OF TAXPAYERS. The statute requiring the listers to make an abstract of the individual list of all the taxpayers, not providing for any distinction in the abstract between the list of an individual based on his inventory and the list of an individual made up under the provisions of the law because of his willful failure to make a proper inventory, the abstract need not show the specific action of the listers in making up the list of an individual. [Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 677-681; Dec. Dig. § 411.*] 10. TAXATION (§ 446*) - ABSTRACT OF INDIVIDUAL LIST-ALTERATION. The listers' abstract of the individual list of all taxpayers cannot be excluded from evidence because of alterations shown on its face; the testimony of the town clerk being that no alterations had been made in it after it was lodged in his office by the listers. [Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 784-786; Dec. Dig. § 446.*] 11. TAXATION (§ 441*) — LISTS — ERRONEOUS INCLUSION OF PROPERTY. The inclusion in a tax list of machinery, not only properly as part of the real estate to which it is fixed, but also as personalty, and the assessment of it in both forms, is within P. S. 606, providing that the assessment of a tax on a list made up in part of property erroneously in the list does not invalidate the whole tax, but only such as is assessed on the invalid part of the list. Cent. Dig. § 773; Dec. Dig. § 441.*] [Ed. Note.-For other cases, see Taxation, 12. APPEAL AND ERROR (§ 760*) - BRIEFSTATING POINTS RELIED ON. An exceptor must state in his brief the precise point on which he relies as reversible error; and he having objected to admission of evidence on six grounds, some of which are without force, and in his brief merely stated that the evidence "was incompetent for the reasons given," referring to the transcript, the court will not examine the several grounds named in taking the exception to see if there was error. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3095; Dec. Dig. § 760.*] 13. SHERIFFS AND CONSTABLES (§ 10*)-OATH OF OFFICE. A constable is in authority under the town by the votes of which he is elected, and so is not required to take and subscribe the oath of office required by Const. c. 2, § 29, of officers "in authority under this state." [Ed. Note. For other cases, see Sheriffs and Constables, Cent. Dig. §§ 23, 24; Dec. Dig. § 10.*] Exceptions from Chittenden County Court; Zed S. Stanton, Judge. Assumpsit by Ira Bixby, collector, against L. H. Roscoe and trustees. Plea the general issue. Verdict was directed for plaintiff, and defendants bring exceptions. Reversed and remanded. Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ. Martin & Bailey and Darling & Mower, for plaintiff. C. S. Palmer and V. A. Bullard, for defendants. WATSON, J. This action is brought under the statute (P. S. 644) to recover by trustee process taxes assessed against the defendant in the town of Essex for the year 1909. At the close of the plaintiff's opening evidence the defendant moved that a verdict be directed in his favor because (1) it does not appear that the taxes sought to be re |