sideration remains under his control. The whole burden of proof is on the plaintiff. ib. 4. Where all the evidence that a note given by an infant a few days before he became of age had been ratified after he did so, was one indorsement of a year's interest paid, without date, and another of a pay- ment on the principal about four years after the date of the note, both in the handwriting of the payee, and found upon the note after his death, it was held not sufficient to prove even an acknowl- edgment of indebtedness.
INJUNCTION AGAINST PROCEED- INGS AT LAW.
The plaintiff had an admitted claim against the defendant for $48; the defendant had an account against him for work done under an agreement that it should be applied on the claim, the amount to be allowed being in dispute, the defendant demanding $41, which was more than the work was worth. The plaintiff brought a suit before a justice of the peace, returnable at nine o'clock in the fore- noon of a certain day; the defendant brought a suit against the plaintiff before a justice in a town in another county, where he resided, returnable at six o'clock in the morning of the same day. The plaintiff sent an attorney to appear in the defendant's suit, who moved for an adjournment, which was refused, and judgment rendered for the present defen- dant for the full amount claimed by him. The justice allowed two days for an appeal, but none was taken. The plain- tiff attended before the justice in his own case, and the defendant appeared, and judgment was rendered for the plaintiff for $48, after deducting $18 allowed by the justice for the defendant's work. No appeal was taken from this judgment. Upon a suit afterwards brought by the plaintiff for a permanent injunction against the enforcing of the defendant's judgment, it was held-1. That the facts furnished an equitable ground for such an injunction. 2. That the plaintiff could not be regarded as guilty of such laches as to debar him from favorable consideration in a court of equity. 3. That it was not a sufficient reason for refusing him equitable aid, that the de- fendant, after he had brought his suit, upon the plaintiff's request for an ad- journment of it, had offered to try it at an earlier day than the one named in the writ, and that the plaintiff had refused to do it. 4. That the defendant had no equitable claim that the judgment should be allowed to stand for whatever might
be justly chargeable for his work above the $18 allowed by the justice in the plaintiff's suit, as he had a full opportu- nity to be heard in that suit, as well as to appeal, and if any loss resulted to him from the whole matter it was his own fault. Kelly v. Wiard. 443
INSOLVENCY, (ASSIGNMENT IN.)
1. Where a debtor has made a fraudulent conveyance of his property, and after- wards makes an assignment in insolvency, the right to institute a suit against the fraudulent grantee to recover the property vests in the trustee in insolvency. Filley v. King. 211 2. But where in such a case a trustee, after consulting the creditors, concluded that it was not expedient to expend the money of the estate in the attempt to recover the property, and intentionally abandoned the claim as an asset of the estate, it was held that the property was open to the attach- ment or levy of a creditor of the fraudu- lent grantor in the same way as if there had been no assignment in insolvency. ib. 3.
And it did not affect the case that the levying creditor had proved his claim against the assigned estate and taken a dividend with the other creditors. ib.
1. A deed was executed on the first of November, 1873, to a trustee, by the Sprague Manufacturing Company, A. & W. Sprague as partners, and A., W., M. and F. Sprague as individuals, purporting to convey all the property of all the grantors in various states, consisting mainly of mills, that lying within this state being described as follows: "all the property which the parties of the first part have in the following towns in the state of Connecticut, viz:" (naming four towns.) It stated the fact that the Sprague Manufacturing Co. and A. and W. Sprague as partners and as individuals were indebted to the amount of about fourteen millions of dollars, which in- debtedness they desired to fund, and that for this purpose the Sprague Manufactur- ing Co. had made a large number of notes, indorsed by A. & W. Sprague, amounting in the aggregate to that sum, payable three years from January 1st, 1874, with semi-annual interest, to be used by the trustee in retiring such of the indebted- ness referred to as the holders of it should within nine months surrender or agree to extend for the term of the notes; and provided that the Sprague Manu- facturing Co. should remain in possession and continue the business at the mills,
with power in the trustee to take posses- sion and run the mills at the expense of the estate; that the deed should become void if the notes were paid; that in default of payment of principal or inter- est the trustee might sell the property, and should do so upon the written request of one fifth in amount of the holders of the notes, and apply the proceeds, after paying the expenses of the trust and of carrying on the business, ratably to the payment of the notes that had been issued and of all claims that had been brought in and were still outstanding, and that he should account for any surplus to the grantors. Held-1. That the deed was a trust deed in the nature of a mortgage, and not an assignment. 2. That the de- scription of the property was insufficient in a mortgage. 3. That the conveyance was fraudulent and void against non- assenting creditors of the Sprague Manu- facturing Company. De Wolf v. Sprague Manufacturing Co. 282 2. The Sprague Manufacturing Company, being insolvent, had no right, legal or moral, to pledge its property for the pay- ment or security of any other debts than its own.
ib. 3. And the power given the trustee to run the mills at the expense of the estate, was a wrong to the non-assenting credi- tors, inasmuch as, if profits should accrue, they would go to the assenting creditors, while losses would diminish the value of the only interest to which the non-assent- ing creditors could resort. 4. The Sprague Manufacturing Co., a few months later, made a general assignment to the same trustee, for the benefit, first, of their creditors who had accepted the provisions of the trust mortgage or should do so within the time limited by it, and, secondly, of all their creditors ratably; with power in the trustee to run the mills, without personal liability for ex- penses or losses. Held to be fraudulent and void against non-assenting creditors.
5. No debtor has a right to postpone or put in peril the rights of his creditors without their consent, and a conveyance which attempts so to do, or which is executed for the purpose of depriving creditors of their right to enforce their just claims against the property of their debtor by placing it beyond their reach for an unlimited or uncertain period, is in conscience as well as law fraudulent. ib. 6. The cases where, in an assignment in trust for the benefit of creditors, a trustee may legally be authorized to continue the business of the assignor, are those in which the carrying on of the business is merely ancillary to the winding up of the
debtor's affairs and with a view of more effectually promoting the interests of the creditors. Where the authority is given chiefly for the benefit of the debtor, or where it is intended to hinder and delay creditors for an unreasonable period in the collection of their debts, it renders the deed fraudulent and void. ib.
The diligence of a provident man is the measure of a trustee's duty, and a pro- vision in a deed of assignment which exempts the trustee from that degree of liability, or in any way restricts it to a less degree than that which the law im- poses upon trustees, renders the assign- ment void. ib.
3. And the proof of the parol contract must be so clear as to place the matter beyond doubt.
ib. The power to reform a written contract is one in the exercise of which there should be great caution. ib.
B and C, trustees under a second rail- road mortgage and who were in posses- sion of and running the road as such trustees, with a lien upon the property in their favor individually for advances made for the road, applied to an agent of an insurance company for insurance upon a depot building belonging to the road. A policy was issued to them as trustees, insuring their interest as such. The building was burned and a suit on the policy brought by them as trustees was successfully defended against on the ground that before the fire the first mortgage had been foreclosed and the property of the road transferred to a new corporation. B and C then brought a bill in equity for the reformation of the policy, alleging that they asked for, and that the agent agreed to give them, a policy insuring their lien as individuals for money advanced for the road; and it was found that they made such a propo- sition to the agent and that he assented to it. But it further appeared that the policy was drawn by the agent the same day, that the petitioners received it the same day without objection, that after
the burning of the building they gave notice to the insurance company of their loss as trustees, and that they brought the suit upon the policy as trustees. Held that these facts were important as indica- tive of the understanding of both parties at the time, and that, as there was noth- ing to break their force except the words which passed between them as recollected by witnesses after more than six years, and after a controversy had arisen, the parol contract claimed was not established with such certainty as would warrant the court in amending the policy in accord- ance with it. ib. 6. The right of the petitioners to reim- bursement from the property of the road for advances which they had made, al- though one which the court would regard and protect, yet until it had been ascer- tained and defined by the decree of the court, was too uncertain an interest to be insurable. ib. 7. But if such an insurance would be valid, yet it would be of very question- able policy, and a court would not estab- lish it by reforming a contract of insur- ance unless it appeared with almost absolute certainty that the parties in- tended it. ib.
1. A life insurance company was author- ized to establish a guarantee fund not exceeding $100,000, in approved notes, to be used only for the purpose of paying claims, and any part so used to be re- funded out of the first surplus receipts of the company. Such a fund was raised by subscriptions of the individual share- holders under an agreement of the com- pany that it was not to be resorted to until all the resources of the company were exhausted. Held that the fund could not be reckoned with the assets of the company in determining whether it was solvent. Talcott v. Bristol. 251 2. And held that a vote of the directors declaring a dividend, which was founded upon a surplus created by treating the fund as an asset when the company was otherwise insolvent, with a vote calling in an installment of the same amount on the capital stock, it being intended that the dividend so declared should pay the installment on the stock, was illegal and of no effect.
3. A life insurance company was author- ized to commence business when $100,000 was subscribed to its capital. After $113,000 had been subscribed B made a final subscription as "treasurer, in trust." The company at once organized and elected directors, and the directors ap-
INTOXICATING LIQUORS.
A complaint charged that the defen- dant "did, at, &c., sell and offer for sale and keep with intent to sell, intoxicating liquors." The prosecutor offered proof of a particular sale, which the court excluded, on the ground that there was no allegation of the name of the person to whom it was made nor of a sale to a person unknown. The prosecutor then offered evidence that the defendant offered intoxicating liquors for sale and kept them with intent to sell. Held that he was not precluded from proving this fact by his having offered evidence of a particular sale. State v. Hartwick.
2. The complaint was not a charge of sell- ing intoxicating liquors as an offense in itself, but of such sales as a part of the offense of keeping such liquors for sale.
3. The 4th and 12th sections of the statute with regard to intoxicating liquors (Gen. Statutes, tit. 16, ch. 14, part 2,) which provide that liquors intended to be sold in violation of law shall be a nuisance and that no action shall be maintained for the possession of them, are not lim- ited in their application to the case of liquors seized as a nuisance by legal pro- ceedings, but apply to all liquors intended to be sold contrary to law and to all suits for the recovery of possession of them. Donohue v. Maloney. 163 4. Held therefore that, where C was in possession of a stock of liquors in a saloon kept by him, but which were in fact owned by D, for whom C was acting as agent in selling them contrary to law, and the liquors were levied upon as
the property of C by one of his creditors, D could not maintain an action of re- plevin against the levying creditor to ib. recover possession of them. 5. Licenses granted for the sale of intoxi- cating liquors upon fees paid therefor by the persons licensed, are not a contract between the state and the persons li- censed, and are not property in any con- stitutional sense. La Croix v. County Commissioners.
lease owned by the wife is not one upon which a builders' lien can attach for buildings erected on the land under a ib. contract with the husband.
LIMITATIONS, (STATUTE OF).
See STATUTE OF LIMITATIONS. MARRIED WOMAN.
6. They form a part of the internal police See HUSband and Wife. system of the state, are granted in the exercise of the police power which is inherent in every sovereignty, and may 1. at any time be revoked by legislative authority.
See COUNTY COMMISSIONERS, 1, 3.
1. It is the duty of the judge presiding at a criminal trial to be present during the whole time that the trial is in actual pro- gress, so that he can see and hear all that 377 is done and said. State v. Smith. 2. Where however the judge for a few moments during the argument of a case went into the retiring room immediately behind the bench, but was all the time
The defendant hired A to work for him at certain monthly wages, living in his family. While in the service he seduced the defendant's daughter and got her with child. Held that in a suit for the wages the defendant could recoup dam- ages for the seduction. Bixby v. Parsons. 483
In such a contract for service there is an implied agreement on the part of the servant that he will do nothing injurious to his employer's interests and that he will be guilty of no criminal misconduct.
where he could hear all that was said, 1. A mortgaged certain land to B to secure
and so far as appeared the door was open through which he could see what was done, it was held not to be sufficient ground for granting the prisoner a new trial.
sundry negotiable notes amounting to $25,000. B negotiated for a valuable con- sideration $5,000 of these notes to D, and afterwards negotiated the remaining $20,- 000, with an assignment of four fifths of the mortgage, to E. E required of B as a condition of his taking the $20,000 that he should release to the mortgagors such portion of the mortgage as covered the remaining $5,000. His object was to in- crease the security of the $20,000, and he did not know at the time that the $5,000 was held by D. B, without the knowl- edge of the mortgagors, placed on record a release of the mortgage as to the $5,000. D, who was not present at the negotia- tion, knew of B's intent to make this re- lease and of E's requiring it before taking the $20,000, and objected to its being made, but gave no notice of his claim to E, and took no further steps in the matter. E, supposing that the lien of the $5,000 was discharged, took the $20,000. The security proved insufficient for the whole. Held-1. That upon the delivery of the $5,000 notes to D a one fifth interest in the mortgage security passed to him by operation of law. 2. That this title being complete could not be affected by any transaction between E and B, to which Ď did not consent. 3. Whether D, by his neglect to notify E of his claim to the benefit of the mortgage as holder of the
$5,000, was estopped as against him from claiming that benefit:-Quoere. 4. That if he would otherwise have been so estop- ped, yet that E had been guilty of negli- gence in not making inquiry as to the facts and especially as to whether B had negotiated the $5,000 notes, which must be regarded as the cause of his loss. Smith v. Stevens. 181 2. In the ordinary case of a purchase of an equity of redemption from a mortgagor, with a provision in the deed that the grantee assumes and agrees to pay the mortgage debt, no right of action on the promise accrues to the mortgagee. Meech v. Ensign.
3. To give the mortgagee a right of action the promise must have been intended for his benefit; it is not enough that a benefit may accrue to him. ib. 4. B purchased certain land in Pennsyl- vania and had it conveyed by the vendor to his sister, the wife of W, for the purpose of preventing his wife taking dower in it.
W and his wife did not know of the con- veyance at the time, but afterwards at B's request executed to him a bond payable to him and his assigns, and secured it by a mortgage back of the land conveyed. There was no consideration for the bond except the deed, and the bond and mort- gage were executed solely for the purpose of enabling B to control the title. The bond was afterwards assigned by B for a valuable consideration to the plaintiff, who took it in good faith. The plaintiff be- fore purchasing applied to W, who told him it would be a good investment. In a suit brought by the plaintiff upon the bond it was held-1. That the effect of the whole transaction was to create a trust in favor of B which he could enforce by means of the mortgage. 2. That B him- self could not have maintained an action on the bond, but could have availed him- self only of the mortgage. 3. That the plaintiff could take no better right than B had. 4. That the plaintiff could not avail himself of the fact that the land had been conveyed to the wife of W for the purpose of defrauding B's wife of her right of dower. If this rendered the conveyance fraudulent it would be void only as against B's wife. 5. That the defend- ants were not bound to save the plaintiff harmless by reason of their negligence in giving the bond. As it was understood that it was given only as security for B, they were not to be regarded as guilty of gross negligence in giving it, while the plaintiff himself was guilty of negligence in not inquiring into the facts. 6. But that, as I had stated to the plaintiff that his purchase of the bond would be a good investment, he was estopped from denying
his liability upon it; while his wife, who was not bound by his acts, was not so estopped. Feltz v. Walker.
A mortgage contained the following clause: "With authority to collect any and all rents that may become due to me from said premises and apply the same to- wards the interest of said note." Held -1. That without this provision the mortgagee would have had power to take the rents. 2. That it did not impose upon him the duty of collecting the rents, nor make him chargeable with them unless they were actually received; nor was he responsible for not collecting the interest from a life tenant of the equity. Good- win v. Keney. 563
A petitioner for a foreclosure was in- solvent. The respondent, who owned the equity of redemption but was not the original mortgagor, had a claim against him personally. Held that it could be set off against the mortgage debt. SEE TENANT IN COMMON, 4, 5.
1. Upon a trial for murder in the first degree, which requires a mental condition that allows premeditation and wilful in- tent, it was claimed that the prisoner was intoxicated at the time and incapable of those mental acts. Held to be no error not to allow a medical expert, who had made a personal examination of the prisoner and who was called by him, to be asked by the prisoner whether in his opinion he was not easily affected by in- toxicating liquors; the question for the jury being wholly as to his actual condi- tion, as to which direct evidence was offered. State v. Smith. 377
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