LIBBY V. OROSSLEY.
(Oircuit Court, D. Maasachusett8. July 29, 1887.)
A debtor assigned to his four brothers, to whom it was claimed he owed about $57,700, an unsettled claim for fire insurance money, for an expressed consideration of $60,000, the ditIerence between the two amounts being made up by cash contributed in varying sums by the several brothers. The brothfor wages ers. who were aU under 40 years of age, were mechanics, which were large, but hardly sufficient to enablethem to maintain themselves, and to accumulate so much money. Afterwards tbe claim against the insurance companies was fixed by settlement at $57,500. Held, in a controversy between the brothers and an attaching creditor, whose claim was due when the assignment was made, that, although the testimony was open to suspicion, yeti being uncontradicted, the bona fides of the transaction was estabJished, and that the'assignees should take the fund.
At Law. '. JaB. McKeen and Oliver 0. Steven8, for plaintiff. ThamaB Hilliaand John Hillw, for claimants.
CARPENTER, J. This action was brought by attachment of the funds of the defendant Crossley in the possession of certain insurance companies, who have answered, disclosing funds which have since, by settlement, been ascertained to amount to $57,500, and also disclosing the facttbat they have been notified of an assignment of the funds. The assignees were then cited in, and the case has now been heard on the question of charging the trustees. The writ in this case was served by attachment, April 2, 1886. The assignment was made January 8, 1885, and,.for a consideration of $60,000, purports to assign all sums of money due from the companies who are served as tr,ustees in this action. The assignees, who here appear as claimants, are brothers of the defendant. It appears by the testimony that, on the day the assignment was made, the defendant was indebted to his brothers for various advances of money theretofore made, and for interest thereon, amounting in the whole to $57,772.77; and that on that day they paid him in cash, in various sums contributed by each of them, an amount sufficient to bring the sum up to $60,000, and took from him the assigi.ul1ent. The plaintiffs contend that this assignment is void, because it was made. to hinder, delay, and defraud creditors. At the time of the assignment, as is 'ascertained by the judgment in this case,. the defendant was indebted to the for.a sum .above $12',000... This claim appears to have been in dispute,but,for the purpQj3e Of dispussion, I it'hlust pe'assurne'd that there. was a valid debt. On the other hand, he was indebted' to his brothers ina sum above $,5.0;000, besides interest: Underth!lse circumstances, I am not prepared to say that the transaction was' other than a preference of' one creditor over another, and therefore not within the statute of Elizabeth against fraudulent conveyances. I have therefore reached the conclusion
that the claimants are entitled to this fund. I hase this conclusion on a nnding, as stated above, of the facts as to the doings;und intentions of the parties preceding and attending the execution of the aSi:\ignment. This finding is in accordance with the testimony of the claimants, but I have had much difficulty in coming to the conclusion that a judgment ought to be based on their testimony. Three of the claimants have worked as foremen or superintendents in the business of dyeing. One is in imperfect health, and has apparently worked as \1 journeyman at the same tradA. None ofthem had reached 40 years of age at the time assignment. It seems improbable that they should have accumuof lated so large a sum of money in the time here stated" besides paying their expenses of living, and accumulating, as I understand some of them to say, other property. But it is to be observed that three of them have received large pay, and, for all that appears, may haye liveA at very small expense. The statement ofthe sum said to have been loaned by Isaac Crossley Jr., seems especially open to suspicion, since his health appears to have been such that he has not thought it prudent to take the care of his own money, ·but has depended on one of his brothers to render that service for him. But their testimony is not contradicted, and I am not prepared to say it is not true. It seems, also, an unusual contract to pay so large a suru as is here named .for a claim for insurance which was then disputed and, was in litigation. But it appears that the claimants were assured by counsel that the validity ,of the claim, would undoubtedly be' established by the courts. Tbey might therefore, perhaps, proceed under the supposition that the only risk in the matter related to the amount to be recovered. Considering that they had a large sum at stake, and that the purchase offered the only present chance of obtaining payment, I cannot say is impossible that they should agree to take the chances. as to the amount, of the fund which they should receive. An order will be tnade that the trustees be discharged.
ARLINE and others.
«(Jircuit OQurt, S. D. Georgia, 'Iv. D. June 27, 1887.)
NEGOTIABLE INSTRUMENT NEY'S FEES.
WHAT IS.,.,. STIPULATION FOR COSTS AND ATTOR-
A promise to pay in these words: "Four months after date we promise to pay to the ,order of M. Nussbaum & 00., $539.46, for value received, payable at the Exchange Bank, Macon, Ga., with interest from March - , at the rate of eight per cent. per annum, with all costs of collection, inclUding ten per cent. attorney's fees. [Signed] T. C. ARLINE & Co....-isnegotiable by the lawmerchant. The conflicting authorities upon the question of negotiability, as affeGted by the presence of stipulations to pay costs,attorney's fees, etc., cited.!
See note at end of case.