which is in the assignee, by showing that the mortgage is a mere sham, given without consideration. and in fraud of creditors, then, indeeli. the property would be most effectually diverted from the payment of the just debts due creditors, and the court would be enabling the wrong-doer to reap the benefit of his fraud. Reasoning which leads to such a result must be wrong. involving the misbpplication of principles intended to defeat fraud in such a way as to make them the means of accomplishing that which it is their very purpose to defeat. The demurrer to the cross-bill is therefore overruled.
TOWN OF PHELPS.
(Oz'rcuz't Oourt, N. D. New York.
January 7, 1885.)
SAME-CREDIBILITY OF WITNESS-PROVINCE OF JURY.
The jury are at libertr to reject the testimony of a witness as incredible, althongh he is not impeached or contradicted by direct evidence where there is some intrinsic improbability in his narrative, and he has shown himself un· worthy of credit by his attempt to falsify u. collateral transaction involved in the suit.
SAME-NEW TRIAL REFUSED.
Upon the evidence in this case, held, that the court properly submitted the question as to whether plaintiff was a bona fide holder of the municipal bonds in suit to the jury as one of fact, and that their verdict was snstained by the evidence, and that a new trial should not be granted.
Motion for New Trial. Edward B. Thomas, for plaintiff. Oomstock tf Bennett, CH. V. Howland. of counsel,} for defendant. WA.LLAOE, J. The plaintiff contends that Post was a bona fide holder of the bonds in suit, and the plaintiff, who acquired title from him, was entitled to stand on Post's title, notwithstanding the bonds were illegally created by persons who assumed authority to represent the defendant. When it appeared that the bonds were issued in fraud of the rights of the defendant, the burden was cast upon the plaintiff to show that he was a holder in good faith, and for value. Bailey v. .Town of Lansing, 13 Blatchf. 424. He attempted to do this by showing that Post was such a purchaser. Post was produced as a witness for the plaintiff, and testified that he took $6,000 in amount of the bonds, as collateral to a loan of $2,000, made to one Davis at the time, and without any information of the invalidity of the bonds. He was a banker, and made inquiries about the bonds of other bankers before taking them. It appears that two days later he wrote to the
GOOD HOPE 00.
RAILWAY BABB FENOING 00.
financial officer of the defendant asking information if the bonds were good and all right. And, after he was informed the bonds wel"6 in litigation, he took $5,500 more of the bonds, and thereafter surren· dered $3,000 of those he took on the earlier occasion. He testified to a subsequent sale of all the bonds to the plaintiff in this suit, which was obviously a merely colorable sale, although he represented it as a regular business transaction. Davis was not produced as a wit. ness, nor were any of the parties produced of whom, according to Post's testimony, he made inquiries before taking the bonds. The bona fides of his acquisition of the bonds was left to rest on his un· supported testimony. Upon this case the conrt refused to rule, as matter of law, that Post was a bona fide purchaser of the bonds, and left the question as one of fact to the jury. This was not error, because the jury were at liberty utterly to reject his testimony as incredible, although he was not impeached or contradicted by direct evidence. It was enough to authorize the jury to do this, that there was some intrinsic improba. bility in Post's narrative, and he had shown himself unworthy of credit by his attempt to falsify the transaction respecting the sale of the bonds made by him to the plaintiff. Harding v. Brooks, 5 Pick. 245; Elwood v. W. U. Tel. Go. 45 N. Y. 549; Kat'anagh v. Wilson, 70 N. Y. 177; Gildersleeve v. Landon, 73 N. Y. 609; Koehler v. Ad-ler, 78 N. Y. 287. The motion for a new trial is denied.
RAILWAY BARB FENCING
(Oircuit Oourt, 8. D. New York.
PRACTICE-SERVICE ON FOREIGN CORPORATION-REv.
A foreign corporation is not" found" within a district, within the meaning of section 739 of the Revised Statutes, for the service of process, when its president comes temporarily into such district upon the business of the corporation, such corporation having no office or place of business therein, and not haVing transacted any business therein, except that which the president came to settle.
At Law. Martin d; Smith, for plaintiff. MacFarland, Reynolds et Harrison, for defendant. WALLACE, J. The question raised by this motion is whether diction is acquired in an action brought against a foreign corporation, by the service of process on its president while in this district, 1101· though the corporation has no office or place of business within this state, and is not engaged in business here, except that it has made occasionally a purchase of goods by sending an agent here for that purpose. Its president came here to adjust a controversy between