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sideration remains under his control. be justly chargeable for his work above
The whole burden of proof is on the the $18 allowed by the justice in the

ib. plaintiff's suit, as he had a full opportu-
4. Where all the evidence that a note given nity to be heard in that suit, as well as to

by an infant a few days before he became appeal, and if any loss resulted to him
of age had been ratified after he did so, from the whole matter it was his own
was one indorsement of a year's interest fault. Kelly v. Wiard.

paid, without date, and another of a pay-
ment on the principal about four years INSOLVENCY, (ASSIGNMENT IN.)
after the date of the note, both in the
hand writing of the payee, and found 1. Where a debtor has made a fraudulent
upon the note after his death, it was held conveyance of his property, and after-
not sufficient to prove even an acknowl- wards makes an assignment in insolvency,
edgment of indebtedness.

ib. the right to institute a suit against the

fraudulent grantee to recover the property
INJUNCTION AGAINST PROCEED- vests in the trustee in insolvency. Filley
v. King.


2. But where in such a case a trustee, after
The plaintiff had an admitted claim against consulting the creditors, concluded that

the defendant for $18; the defendant had it was not expedient to expend the money
an account against him for work done of the estate in the attempt to recover the
under an agreement that it should be property, and intentionally abandoned the
applied on the claim, the amount to be claim as an asset of the estate, it was held
allowed being in dispute, the defendant that the property was open to the attach-
demanding $11, which was more than the ment or levy of a creditor of the fraudu-
work was worth. The plaintiff brought lent grantor in the same way as if there
a suit before a justice of the peace, had been no assignment in insolvency. ib.
returnable at nine o'clock in the fore- 3. And it did not affect the case that the
noon of a certain day; the defendant levying creditor had proved his claim
brought a suit against the plaintiff before against the assigned estate and taken a
a justice in a town in another county, dividend with the other creditors. ih.
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 1. A deed was executed on the first of
adjournment, which was refused, and November, 1873, to a trustee, by the
judgment rendered for the present defen- Sprague Manufacturing Company, A. &
dant for the full amount claimed by him. W. Sprague as partners, and A., W., M.
The justice allowed two days for an and F. Sprague as individuals, purporting
appeal, but none was taken. The plain- to convey all the property of all the
tiff attended before the justice in his own grantors in various states, consisting
case, and the defendant appeared, and mainly of mills, that lying within this
judgment was rendered for the plaintiff state being described as follows: “all the
for $18, after deducting $18 allowed by property which the parties of the first
the justice for the defendant's work. No part have in the following towns in the
appeal was taken from this judgment. state of Connecticut, viz:" (naming four
Upon a suit afterwards brought by the towns.) It stated the fact that the
plaintiff for a permanent injunction Sprague Manufacturing Co. and A. and
against the enforcing of the defendant's W. Sprague as partners and as individuals
judgment, it was held-1. That the facts were indebted to the amount of about
furnished an equitable ground for such fourteen millions of dollars, which in-
an injunction. 2. That the plaintiff debtedness they desired to fund, and that
could not be regarded as guilty of such for this purpose the Sprague Manufactur-
laches as to debar him from favorable ing Co. had made a large number of notes,
consideration in a court of equity. 3. indorsed by A. & W. Sprague, amounting
That it was not a sufficient reason for in the aggregate to that sum, payable
refusing him equitable aid, that the de- three years from January 1st, 1874, with
fendant, after he had brought his suit, semi-annual interest, to be used by the
upon the plaintiff's request for an ad- trustee in retiring such of the indebted-
journment of it, had offered to try it at ness referred to as the holders of it
an earlier day than the one named in the should within nine months surrender or
writ, and that the plaintiff had refused agree to extend for the term of the notes;
to do it. 4. That the defendant had no and provided that the Sprague Manu-
equitable claim that the judgment should facturing Co, should remain in possession
be allowed to stand for whatever might and continue the business at the mills,

with power in the trustee to take posses- debtor's affairs and with a view of more
sion and run the mills at the expense of effectually promoting the interests of the
the estate; that the deed should become creditors. Where the authority is given
void if the notes were paid; that in chiefly for the benefit of the debtor, or
default of payment of principal or inter- where it is intended to hinder and delay
est the trustee might sell the property, creditors for an unreasonable period in
and should do so upon the written request the collection of their debts, it renders
of one fifth in amount of the holders of the deed fraudulent and void.

the notes, and apply the proceeds, after 7. The diligence of a provident man is the
paying the expenses of the trust and of measure of a trustee's duty, and a pro-
carrying on the business, ratably to the vision in a deed of assignment which
payment of the notes that had been issued exempts the trustee from that degree of
and of all claims that had been brought liability, or in any way restricts it to a
in and were still outstanding, and that he less degree than that which the law im-
should account for any surplus to the poses upon trustees, renders the assign-
grantors. Held-1. That the deed was a ment void.

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 1. An insurance company can not ordina-
was fraudulent and void against non- rily insure by parol. But the parties may
assenting creditors of the Sprague Manu- agree by parol as to the terms of a policy
facturing Company. De Wolf v. Sprague to be issued, and if the policy as written
Manufacturing Co.

282 is by mistake materially different from
2. The Sprague Manufacturing Company, the parol agreement a court of equity

being insolvent, had no right, legal or may correct it. Bishop v. Clay Insurance
moral, to pledge its property for the pay- Company:

ment or security of any other debts than 2. A bill in equity for the correction of
its own.

ib. such a policy should show clearly the
3. And the power given the trustee to run parol contract that was made and in what
the inills at the expense of the estate, the error consists.

was a wrong to the non-assenting credi- 3. And the proof of the parol contract
tors, inasmuch as, if profits should accrue, must be so clear as to place the matter
they would go to the assenting creditors, beyond doubt.

while losses would diminish the value of 4. The power to reform a written contract
the only interest to which the non-assent- is one in the exercise of which there
ing creditors could resort.
ib. should be great caution.

4. 'The Sprague Manufacturing Co., a few 5. B and C, trustees under a second rail-

months later, made a general assignment road mortgage and who were in posses-
to the same trustee, for the benefit, first, sion of and running the road as such
of their creditors who had accepted the trustees, with a lien upon the property
provisions of the trust mortgage or should in their favor individually for advances
do so within the time limited by it, and, made for the road, applied to an agent of
secondly, of all their creditors ratably; an insurance company for insurance upon
with power in the trustee to run the a depot building belonging to the road.
mills, without personal liability for ex- A policy was issued to them as trustees,
penses or losses. Held to be fraudulent insuring their interest as such. The
and void against non-assenting creditors. building was burned and a suit on the

ib. policy brought by them as trustees was
5. No debtor has a right to postpone or successfully defended against on the

put in peril the rights of his creditors ground that before the fire the first
without their consent, and a conveyance mortgage had been foreclosed and the
which attempts so to do, or which is property of the road transferred to a new
executed for the purpose of depriving corporation. B and C then brought a
creditors of their right to enforce their bill in equity for the reformation of the
just claims against the property of their policy, alleging that they asked for, and
debtor by placing it beyond their reach that the agent agreed to give themi, a
for an unlimited or uncertain period, is in policy insuring their lien as individuals

conscience as well as law fraudulent. ib. for money advanced for the road; and it
6. The cases where, in an assignment in was found that they made such a propo-

trust for the benefit of creditors, a trustee sition to the agent and that he assented
may legally be authorized to continue the to it. But it further appeared that the
business of the assignor, are those in policy was drawn by the agent the same
which the carrying on of the business is day, that the petitioners received it the
merely ancillary to the winding up of the same day without objection, that after

the burning of the building they gave pointed B treasurer. The directors, a
notice to the insurance company of their majority of whom were the same corpo-
Joss as trustees, and that they brought rators who had accepted the subscription,
the suit upon the policy as trustees. Held afterwards by repeated acts, before issu-
that these facts were important as indica- ing any policies, recognized the subscrip-
tive of the understanding of both parties tion as made by B as treasurer for the
at the time, and that, as there was noth- insurance company itself. Held that this
ing to break their force except the words constituted a ratification of B's authority
which passed between them as recollected to subscribe for the company, and that
by witnesses after more than six years, neither the company during its solvency
and after a controversy had arisen, the nor a receiver appointed upon its insol-
parol contract claimed was not established vency, could hold B liable individually
with such certainty as would warrant the upon the subscription.

court in amending the policy in accord- 4. And held that it did not affect the case
ance with it.

ib. that the company might not have power
6. The right of the petitioners to reim- to subscribe for its own stock; the only

bursement from the property of the road question being whether it had actually
for advances which they had made, al- authorized or ratified the act of B. ib.
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 See EXECUTORS AND ADMINISTRATORS,


9, 10.
7. But if such an insurance would be

valid, yet it would be of very question- INTOXICATING LIQUORS.
able policy, and a court would not estab-
lish it by reforming a contract of insur- 1. A complaint charged that the defen-
ance unless it appeared with almost dant “did, at, &c., sell and offer for sale
absolute certainty that the parties in- and keep with intent to sell, intoxicating
tended it.

ib. 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
1. A life insurance company was author- to whom it was made nor of a sale to a

ized to establish a guarantee fund not person unknown. The prosecutor then
exceeding $100,000, in approved notes, to offered evidence that the defendant
be used only for the purpose of paying offered intoxicating liquors for sale and
claims, and any part so used to be re- kept them with intent to sell. Held that
funded out of the first surplus receipts of he was not precluded from proving this
the company. Such a fund was raised by fact by his having offered evidence of a
subscriptions of the individual share- particular sale. State v. Hartwick. 101
holders under an agreement of the com- 2. The complaint was not a charge of sell-
pany that it was not to be resorted to ing intoxicating liquors as an offense in
until all the resources of the company itself, but of such sales as a part of the
were exhausted. Held that the fund offense of keeping such liquors for sale.
could not be reckoned with the assets of

the company in determining whether it 3. The 4th and 12th sections of the statute

was solvent. Talcott v. Bristol. 251 with regard to intoxicating liquors (Gen.
2. And held that a vote of the directors Statutes, tit. 16, ch. 14, part 2,) which

declaring a dividend, which was founded provide that liquors intended to be sold
upon a surplus created by treating the in violation of law shall be a nuisance
fund as an asset when the company was and that no action shall be maintained
otherwise insolvent, with a vote calling for the possession of them, are not lin-
in an installment of the same amount on ited in their application to the case of
the capital stock, it being intended that liquors seized as a nuisance by legal pro-
the dividend so declared should pay the ceedings, but apply to all liquors intended
installment on the stock, was illegal and to be sold contrary to law and to all suits
of no effect.

ib. for the recovery of possession of them.
3. A life insurance company was author- Donohue v. Maloney.

ized to commence business when $100,000 4. Held therefore that, where was in
was subscribed to its capital. After possession of a stock of liquors in a
$113,000 had been subscribed B made a saloon kept by him, but which were in
final subscription as “ treasurer, in trust.” fact owned by D, for whom C was acting
The company at once organized and as agent in selling them contrary to law,
elected directors, and the directors ap- and the liquors were levied upon as


the property of C by one of his creditors, lease owned by the wife is not one upon
D could not maintain an action of re- which a builders' lien can attach for
plevin against the levying creditor to buildings erected on the land under a
recover possession of them.
ib. contract with the husband.

5. Licenses granted for the sale of intoxi-

cating liquors upon fees paid therefor by LIMITATIONS, (STATUTE OF).
the persons licensed, are not a contract
between the state and the persons li- See STATUTE OF LIMITATIONS.
censed, and are not property in any con-
stitutional sense. La Croix v. County


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. The defendant hired A to work for him
at any time be revoked by legislative

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.
1. It is the duty of the judge presiding at

a criminal trial to be present during the 2. In such a contract for service there is
whole time that the trial is in actual pro-

an implied agreement on the part of the
gress, so that he can see and hear all that

servant that he will do nothing injurious
is done and said. State v. Smith. 377

to his employer's interests and that he
2. Where however the judge for a few

will be guilty of no criminal misconduct.
moments during the argument of a case

went into the retiring room immediately

behind the bench, but was all the time
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

sundry negotiable notes amounting to
through which he could see what was
done, it was held not to be sufficient

$25,000. B negotiated for a valuable con-

sideration $5,000 of these notes to D, and
ground for granting the prisoner a new


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
1. A juror in a criminal case who, though

portion of the mortgage as covered the
having formed some opinion as to the

remaining $5,000. His object was to in-
prisoner's guilt froin what he has heard,

crease the security of the $20,000, and he
has yet forined none that it would require

did not know at the time that the $5,000
evidence to remove or which would pre-

was held by D. B, without the knowl-
vent him from trying the case without
bias, is not disqualified from sitting.

edge of the mortgagors, placed on record

a release of the mortgage as to the $5,000.
State y. Smith.


D, who was not present at the negotia-
2. It is not a rule to be laid down for the

tion, knew of B’s intent to make this re-
action of a jury, that each juror should

lease and of E's requiring it before taking
be governed by his own independent con-

the $20,000, and objected to its being
clusions, without being influenced by the


made, but gave no notice of his claim to
judgment or opinions of the others.

E, and took no further steps in the matter.
See CHALLENGE, 1, 2.

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
1. A lease of land for nine hundred and transaction between E and B, to which D

ninety-nine years is a chattel real. Flan- did not consent. 3. Whether D, by his
nery v. Rohrmayer.

27 neglect to notify E of his claim to the
2. The interest of a husband in such a benefit of the mortgage as holder of the

$5,000, was estopped as against him from his liability upon it; while his wife, who
claiming that benefit:-Quære. 4. That was not bound by his acts, was not so
if he would otherwise have been so estop- estopped. Feltz v. Walker.

ped, yet that E had been guilty of negli- 5. A mortgage contained the following
gence in not making inquiry as to the clause: “With authority to collect any
facts and especially as to whether B had and all rents that may become due to me
negotiated the $5,000 notes, which must from said premises and apply the same to-
be regarded as the cause of his loss. wards the interest of said note." Held
Smith v. Stevens.

181 -1. That without this provision the
2. In the ordinary case of a purchase of an mortgagee would have had power to take

equity of redemption from a mortgagor, the rents. 2. That it did not impose
with a provision in the deed that the upon him the duty of collecting the rents,
grantee assumes and agrees to pay the nor make him chargeable with them unless
mortgage debt, no right of action on the they were actually received; nor was he
promise accrues to the mortgagee. Meech responsible for not collecting the interest
V. Ensign.

191 from a life tenant of the equity. Good-
3. To give the mortgagee a right of action win v. Keney.

the promise must have been intended for 6. A petitioner for a foreclosure was in-
his benefit ; it is not enough that a benefit solvent. The respondent, who owned the
may accrue to him.

ib. equity of redemption but was not the
4. B purchased certain land in Pennsyl- original mortgagor, had a claim against

vania and had it conveyed by the vendor him personally. Held that it could be set
to his sister, the wife of W, for the purpose off against the mortgage debt.

of preventing his wife taking dower in it. SEE TENANT IN Common, 4, 5.
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. See DEED (REFORMATION OF,) 2, 3; In-
There was no consideration for the bond SOLVENT DEBTOR, 1.
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 Where a finding of facts embraces a con-
valuable consideration to the plaintiff, tract and the whole question in the case
who took it in good faith. The plaintiff be- is as to the construction of the contract,
fore purchasing applied to W, who told the remedy for an error of the court in
him it would be a good investment. In giving it a construction is by a motion in
a suit brought by the plaintiff upon the error. Cowles v. Buckingham. 121
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- 1. Upon a trial for murder in the first
self could not have maintained an action degree, which requires a mental condition
on the bond, but could have availed him- that allows premeditation and wilful in-
self only of the mortgage. 3. That the tent, it was claimed that the prisoner was
plaintiff could take no better right than intoxicated at the time and incapable of
B had. 4. That the plaintiff could not those mental acts. Held to be no error
avail himself of the fact that the land had not to allow a medical expert, who had
been conveyed to the wife of W for the made a personal examination of the
purpose of defrauding B’s wife of her right prisoner and who was called by him, to be
of dower. If this rendered the conveyance asked by the prisoner whether in his
fraudulent it would be void only as opinion he was not easily affected by in-
against B's wife. 5. That the defend- toxicating liquors; the question for the
ants were not bound to save the plaintiff jury being wholly as to bis actual condi-
harmless by reason of their negligence in tion, as to which direct evidence was
giving the bond. As it was understood offered. State v. Smith.

that it was given only as security for B, 2. It is no error to refuse to charge that in
they were not to be regarded as guilty of murder in the first degree the jury must
gross negligence in giving it, while the find that the act was done while the
plaintiff himself was guilty of negligence prisoner was in full possession of his
in not inquiring into the facts. 6. But reasoning powers, unimpaired by any.
that, as I had stated to the plaintiff that thing affecting his mental condition. A
his purchase of the bond would be a good lower condition of the mental faculties
investment, he was estopped from denying would be sufficient.


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