the execution of mutual releases between the assignee and the corporation in respect
to all the interest of the complainant. The complainant never assented to the
proposition or the settlement, but they were procured with his assignee, by the
false statement of the accounts by the treasurer of the corporation. Held, that the
complainant was entitled to a decree, according to the prayer of the bill, unless the
corporation had other defences which could be sustained. James v. Atlantic Delaine
Co. 614.
2. The settlement being prejudicial to the complainant, the assignor, he was entitled
to the residue of his estate, if any, in the hands of the corporation, after his debts
outstanding at the date of the assignment were paid. Ibid.
3. By the extinguishment of the debts the assignee became the trustee of the complain-
ant, and the latter became clothed with all the rights and powers of cestui que trust,
to the same extent as the creditors previously had whose claims he had extinguished.
Ibid.
4. The complainant was the proper party to come into a Court of Equity and pursue
the trust estate, it appearing that it had been improperly parted with by the trus-
tee. Ibid.
5. When the objects of the trust are fulfilled, equity will compel a conveyance to the
cestui que trust, he being the sole beneficiary. Ibid.
6. The complainant agreed with certain firms to construct and put in operation a fac-
tory. To obtain and secure a loan of money from these firms, he executed a mort-
gage, with power of sale for breach of condition, to the treasurer of the company,
as trustee for the corporation, upon all his stock and interest in the company. He
also executed to the same firm, as trustee of the lenders of the credit, separate
mortgages of the same kind upon his homestead and farm, together with other prop-
erty. Subsequently failing, he made an assignment of his property. By the terms
of the assignment the liability to the company was made a charge upon the assets
named in the assignment, with directions to the assignee to apply all the assigned
estate, as he could, to the fulfilment of the contract of the assignor for the building
and equipment of the mill. The assignee made an arrangement with the company
to furnish the money to forward the contract of the assignor, and charge the same
to the assets in his hands. Under this arrangement the factory was completed.
The assignor continuing embarrassed, the trustee was directed to advertise the prop-
erties for sale. The assignee failing to raise the amount necessary to meet the
assignor's liabilities, wrote to the treasurer of the company, demanding a statement
of the condition of the company, so that he could represent the assignor's stock in
its true light and sell it for its true value. The trustee stated that such an account
could not be given, and the assignee then obtained an injunction restraining the
proposed sale of the stocks until the further order of the court. Certain of the
mortgagor's creditors tendered to the company the amount of the mortgage debt
which the company refused to accept, and the court passed an order enjoining the
sale unless the trustee would file a stipulation not to enforce the mortgage against
property subject to the lien of the complainant in that suit. Two suits were pend-
ing to redeem the properties mortgaged, and the order restraining the sale of the
stock was in force when the sale of the homestead took place. On that day the
trustee sent to the assignee a paper described as a statement of the company's affairs.
He afterwards on oath acknowledged that it was transcribed from a private memo-
randum kept by him, and it nowhere appeared on the company's books. Held:
That, being furnished as a copy from the company's books, it must be assumed that
the assignee received it as an official account and gave it full credence as furnished
by the company's officers. Ibid, 622.
7. That the alleged statement was not only false, but furnished with intent to deceive
and defraud by promoting a settlement prejudicial to the mortgagor and more
favorable to the company than truth and justice would admit. Ibid.
8. That in such case the assignor is entitled to take the residue of the estate after his
debts outstanding at the date of the assignment are paid. Ibid.
9. That by the extinguishment of the debts the assignee became the trustee of the
assignor, and the latter clothed with all the rights of cestui que trust to the same
extent as the creditors previously had been whose debts he had extinguished; and
consequently the complainant could come into a Court of Equity and pursue the
trust estate, it having been fraudulently or improperly parted with by the trustee,
and that under the decretal order the complainant was entitled to redeem the mort-
gaged property just as her intestate might have done, if the settlement and release
had never been executed. Ibid.
10. This case was twice referred to a master, but inasmuch as the exceptions which
accompanied the respective reports made it necessary, if attempting to decide the
case at this stage, for the court to adjudicate the whole controversy as if no refer-
ence had been made, the court again sent the whole case to the master with specific
instructions for a statement of the accounts between the parties. Ibid.
See JURISDICTION, 1; PLEADING, 1; PRACTICE, 1-6; SEPARATION, Agreement
OF, 1-7; TRUST, 2; WILL, 1-4.
EQUITY OF REDEMPTION.
See STATUTE OF LIMITATIONS, 1-8.
EQUIVALENTS.
See PATENT, 7 – 11.
1. Mere opinions of physicians that ill-health, subsequent to an injury, was occasioned
by it, must be received with caution, and weighed in view of all the circumstances
surrounding the case. Nichols v. Inhabitants of Brunswick, 81.
2. The obvious purpose of the act of July 16, 1862, as to the competency of witnesses
in the United States courts, was to bring the State and Federal courts into a more
harmonious course of decision upon this subject. Robinson v. Mandell, 169.
3. The effect of the act of July 2, 1865, was to produce diversity between the rules of
decision, in the State and Federal courts. Ibid.
4. By the act of March 3, 1865, it is provided, that neither party shall be allowed to
testify against the other, under the circumstances described in the act, unless called
by the opposite party, or required to testify by the court. Ibid.
5. The several acts of Congress, as to the competency of witnesses, indicate an intent
upon the part of Congress to legislate that evidence of title to real estate and rules
of decision in all controversies affecting rights of property shall be the same in the
Federal and State courts of the same State and district. Ibid.
6. Where an executor or administrator is a party under the law of this State, the
other party cannot be admitted to testify in his own favor, unless the contract was
originally made with a party who was living, and competent to testify, and there-
fore the complainant in this case was not a competent witness to testify to any
transaction with, or statement by, the testatrix. Ibid.
7. Equity acknowledges the rule that a representation made by one party for the
purpose of influencing the conduct of the other party will in general be sufficient to
entitle such other party, if induced to act upon such representation, to relief. Ibid.
8. Such representations must be proved by the party who alleges they were made.
Ibid.
9. The objections were taken to the admissibility of a deposition : 1. That it did not
appear that the magistrate had examined the deponent; 2. That it did not appear
that the magistrate had reduced, or caused to be reduced, to writing the deponent's
answers. 3. That it did not appear that the magistrate had reduced, or caused to
be reduced, to writing the answers of deponent in his presence. The return stated
that, 1. "An examination on oath of the deponent was had before me." 2. Cross
and direct interrogatories accompanied the commission, and the magistrate's return
was, "the following are the answers," to the direct and cross interrogatories, and
also that "the signatures of the deponent affixed to this deposition are in his hand-
writing, and made in my presence." Held, that as the magistrate was to permit no
person other than a clerk to be present at the examination except himself and the
deponent, and as it did not appear that a clerk was appointed, the presumption was
that no one was present but the deponent and the magistrate, and, if not, then
either the magistrate or the deponent must be presumed to have written the an-
swers, and, if by either, the first and second objections failed. 3. The fact that the sig-
natures affixed were those of the deponent and made in the presence of the magis-
trate is an answer to the third objection. Stockwell v. The United States, 284.
10. Parol evidence as to the usage of trade is admissible relating to a written contract
in two classes of cases: Where the evidence is offered to prove that the words used
in the contract are employed in a peculiar sense in the particular trade to which the
contract relates; where the purpose of the evidence is to annex incidents to the con-
tract in matters upon which the contract is silent. Hearn v. New England Mutual
Marine Insurance Co., 318.
11. In the latter case, however, the peculiar meaning which it is proposed to attach to
the words must not either expressly or by implication vary the terms of the written
instrument. Ibid.
12. Such evidence is admissible to define what would otherwise be indefinite and
obscure, and always with a view to give expression to the presumed intention of the
parties. Ibid.
13. Under the policy in this case, parol evidence to the effect that it is the usage for
vessels bound from Liverpool and back, to discharge at one port and then to proceed
to a second port for a return cargo, was not admissible to avoid the effect of a devi-
ation. Ibid.
14. If admitted, it would extend the voyage and increase the risk beyond what the
language employed warrants the court in believing the parties had in contemplation.
Ibid.
15. Depositions offered to show that on a voyage of this kind the vessel might, under
a usage, go to a second port in Cuba to load, were admitted de bene esse. Hearn v.
Equitable Safety Insurance Co., 328.
16. It does not establish a usage that vessels have the right to so go to a second port
in Cuba and load, under a policy in the terms of this one, to show that Cuba char-
ters from Liverpool and back contain an express stipulation that the charterers
shall have the option of a second port of loading. Ibid.
17. Matter of contract and usage or evidence of usage are quite different. lbid.
18. Correspondence between insurer and insured prior to the execution of the policy
is inadmissible to vary the terms of the policy, but the court thought it proper to
examine the letters. Ibid.
19. Upon an application for a writ of habeas corpus before the District Court, there
was no defence that the recruit was awaiting a trial under a charge of desertion be-
fore a military court, and no evidence to that effect introduced before that court: Held,
that at the hearing of the appeal before the Circuit Court, the suggestion that that
fact was shown by the return could not avail the respondent, because the jurisdiction
of the Circuit Court in this case was purely appellate. Seavey et al. v. Seymour, 439.
20. Repeated decisions of the Federal Courts have established the rule that oral evi-
dence is admissible for the purpose of showing that a deed absolute on its face, was
intended as a mortgage, and that the defeasance was omitted from mutual confi-
dence between the parties. Andrews v. Hyde, 516.
21. The evidence to prove the agreement ought to be clear and satisfactory, as the
rule is one of exceptional character in the law of evidence. Ibid.
22. Where the evidence to prove the agreement, was that of only one of the parties,
the other having deceased, and was uncorroborated by any word or act of the other,
proof of friendly relations existing between the parties is not sufficient where the
evidence is otherwise subject to doubt. Ibid.
23. Where witnesses are not excluded on account of interest in the event of the suit,
the rule still applies that their veracity or impartiality may be affected by such in-
terest. Ibid.
24. Something is due in such a case as this, to the denials of the answer to the effect
that the conveyances were not made as security for any indebtedness. Ibid.
25. Where the allegation of the bill is that certain real estate was conveyed to a de-
ceased person as security for a debt, the complainant is not entitled to a decree upon
the uncorroborated testimony of a single witness, and certainly not unless his state-
ments are positive, and he appears to be without prejudice, bias, or interest adverse
to the respondent. Ibid.
26. It is the settled rule in the Federal Courts that oral evidence is admissible to
show that a deed absolute on its face was intended as a mortgage. Amory v. Law-
rence, 523.
27. Where a contract was alleged to be shown by letters, it was held that all objec-
tion to their admissibility on the ground that they were not stamped- the act of
Congress then requiring contracts in writing to be stamped-was waived by the
annexing of the letters, without reservation, to the agreed statement of facts under
which the case was submitted. Snow et al. v. Miles, 608.
See BILL OF EXCEPTIONS, 4, 6, 7. CONFESSIONS, 1-3, 5, 7.
FACTS, AGREED STATEMENT OF.
Objections to the form of an action are usually considered as waived by the submis-
sion of a case to the decision of the court upon an agreed statement of facts, unless
such objections are expressly reserved for the consideration of the tribunal to which
the submission is made. Snow et al. v. Miles, 608.
1. Where goods are withdrawn from a United States bonded warehouse by fraud, the
permit so obtained is a mere nullity, and the person perpetrating the fraud has no
more right to the possession of the merchandise than if the same had been taken by
force or had been stolen by him. United States v. Barrels of Spirits, 261.
2. Goods removed from a United States bonded warehouse by consent of the collector
obtained by fraud are subject to forfeiture. Ibid.
3. Where a person purchases goods as agent for another, knowing that the same had
been removed before the taxes were paid, from a United States bonded warehouse
by fraud, the principal would be bound by the knowledge of the agent. Ibid.
4. The jury must find in such case that the agent was cognizant of the fraud at the
time he made the purchase, else they would not be justified in finding that the prin-
cipal was affected by the antecedent knowledge of the agent. Ibid.
5. Where spirits fraudulently withdrawn from a bonded warehouse were seized for
nonpayment of the taxes thereon, after they had been mixed at a rectifying establish-
ment with others belonging to the claimants, so that they could not be distinguished,
it was held that the United States were entitled to a forfeiture of a fair proportion
of the mixture, even though the mixture might have been innocently made, provided
the jury were satisfied from the evidence, and under the instructions of the court,
that the spirits fraudulently withdrawn would have been by law liable to forfeiture,
if they had not been so mingled with others. Ibid.
6. The right of the United States to a forfeiture cannot be destroyed by the intermix-
ture of the liquors fraudulently taken from the warehouse, with others not subject
to forfeiture. Ibid.
7. If spirits liable to forfeiture in consequence of fraudulent removal from a United
States bonded warehouse and for nonpayment of taxes, were fraudulently mixed
with others by the claimants and belonging to them, in order to destroy the
identity of the goods so fraudulently removed, then the entire quantity is forfeited.
Ibid.
8. This rule is never applied where the goods can be separated and distinguished.
Ibid.
9. If the claimants knew, when they made the mixture, that the spirits which they
mixed with their own had been fraudulently withdrawn from the bonded warehouse,
then the spirits seized would be liable to forfeiture. Ibid.
10. The rule might be otherwise where the effect of the intermixture was to convert
the substances into a new species, unless the new species can be reduced to its ele
ments. Ibid.
11. Wherever goods of a similar kind are innocently intermixed, so that they cannot
be distinguished, and they are not substantially destroyed, as by the production of a
different species, the several owners may reclaim their respective shares, and take
possession of the same wherever they can find them, if they can do so without a
breach of the peace, or they may bring trover for the value of their proportions,
against the person in possession, after demand and notice. Ibid.
12. Under the act of July 13, 1866, where spirits on which taxes were imposed were
found in the custody of the claimants, after fraudulent removal from the warehouse,
with the taxes unpaid, it must be assumed, after a finding of the jury, like the one
in this case, that the claimants held them for the purpose of selling and removal in
fraud of the revenue. Ibid.
13. A purchaser of distilled spirits, ignorant at the time of the purchase that the
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