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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.

ib.

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.

INSOLVENT DEBTOR.

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.

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.

ib.

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

7.

1.

2.

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.

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3. And the proof of the parol contract
must be so clear as to place the matter
beyond doubt.

4.

5.

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.

INSURANCE, (LIFE).

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.

ib.

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-

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1.

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.

101

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.

ib.

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.

591

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.

MASTER AND SERVANT.

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.

JUDGE.

ib.

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

2.

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.

MORTGAGE.

ib.

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.

JUROR.

ib.

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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.

191

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

5.

6.

his liability upon it; while his wife, who
was not bound by his acts, was not so
estopped. Feltz v. Walker.

93

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.

ib.

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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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