OOLTON V. COLTON.
devisee and legatee, and she bas been discharged from her trust 0.8 executrix. So it appears from the bill. This suit is brought against her to enforce a trust vested in her as legatee, for the benefit of complainant, and not against her in her representative character of executrix. So, the closing passa,ge of will, making the Bame provision applicable to her co-executor or coexecutors in the provided for, "as I have before made for her in reference to bonds and duties and powers," has sole reference to the bonds waived, and to the "duties and powers" conferred on her as executrix. It confers no rights or powers or duties upon these co-executors in the character of devisees or legatees; and no argument can be derived from this passage to support the creation by the c'ourt of a trust. Upon the views thus ta.ken upon the construction of the will it is unnecessary to notice the other points argued under the demurrer. The demurrer is sustained, and, as the whole case depends upon the conRtruction of the will, no amendment can be made to the bill that will obviate the objection taken by the demurrer. The bill must therefore be dismissed; and it is so ordered.
COLTON 'V. COLTON.
(Oircui£ Court, D. Oalifornia.
September 22, 1884.)
Colton v. Colton, ante, 594, followed, demurrer sustained, and bill dismissed.
W. W. rf II. S. Foote and Grove L. Johnson, for complainant. Crittenden Thornton and Stanly, Stoney et Hayes, for defendant. SAWYER,J. This is a bill in equity seeking a decree declaring and enforcing a trust in favor of the sister of the late David D. Colton, deceased, claimed to arise out of the same clause of the will considered in the preceding case of Colton v. Colton, ante, 594. The (lame construction must, of course, be given to the clause in this case as was adopted in the other. For reasons in that case stated, the demurrer to the bill must be suatained and the bill dismissed; and it is so ordered.
and others .t).
(Circuit Court, E. D. Virginia. .,Tuly, 1884.)
l1:QUITABLE JURISDICTION AND RELIEF-INSOLVENT PARTNER3HIP-RlllOEIVER.
An insolvent firm offers by circular lettel' to its creditors to pay liO per cent. oftheir debts, and agrees in the same circular to make no preferences.. Many creditors accept the offer. 1t subsequently continues business at large expense, pdstponlls the execution of this compromise for an indefinite period until all the creditors accept, 'and pays many of the debts in full, thereby making preferepces. 'He1.d, equity has jurisdiction on bill filed to appoint 8 receiver and pussession of the firm assets and administer them for the benefit of thet creditors; and this can be done in Virginia by a creditors' bill, without previously obtaining judgments at law.
The facts are stated in the opinion. for plaintiffs. Friend et Davis, for defendants. HUGHES, J. The principal facts of this case, as shown by the pers and proofs now before the court, are as follows:
The defendants are grocers in Petersburgh. They"have been carryirig on their business silice 1878. They put no capital in it. They began with' a stock of goods worth about $4,000, and owed for it about $6,000. Their business has not been profitable. They have made nothing but their personal expenses. By the first of June, 1884, they became insolvent, and their business paper went to protest., they consulted legal counsel as to the course best to be pursued. These advised an assignment in liquidation. They did not adopt this advice. They took counsel of mercantile friends in Petersburgh, expressing a wish to go on With their business as the best method of liquidating their affairs. They determined to go on with it for this purpose. They accordingly drew up a scheme for compounding with their creditors, framed on the basis of paying 50 per cent. This was approved and accepted by most of their Petersburgh creditors. They tl1en proposed this' scheme to their creditors in general, embodying it in a circular letter, which was mailed to the non-residents. The circular was as follows: "PETERSBURGH, 18th June, 1884. "To---"DEAR 8IR: "We owe, by bills payable and open accounts, - $26,552 19 "Our assets are stock in hand, bills receivable, and open accounts that we consider good, 14,156 81 "We offer to our creditors fifty cents in the dollar, to be paid as follows: Twenty cents in the dollar, first twenty cents in the dollar on the first March. 1885; and ten cents in the dollar in cash as soon as our banks begin to discount paper, which we believe will be in a very few days. The deferred payments to carry interest at the rate of six per cent. per annum.We make no preferences, but make the sameproposHion to all. Please let us hear from yOll at as early a date as practicable. "¥ours, truly, PATTERSON, MADISON & Co." Meanwhile, and until the eighth of July, their business went on as before, except that they discharged two clerks, and made purchases of only such goods as were necessary to fill orders. buying both for cash and on credit. They continued to collect and sell, and they paid some of their debts in full.
In Equity. Coke it