The court is of the opinion, and so instructs you, that there is no evin this case that will warrant you in finding that the debt sued forwas fraudulently contracted in the mode first above pointed out; that is to say, because of fllaudulent representations made when the goods in question were bought. There is no evidence, in my judgment, to substantiate any such charge. But the court submits this question for your consideration as one that fairly arises under the evidence in the case, viz., whether, when defendant bought the bill of goods sued for in this case of the plaintiffs, he intended to pay for the goods. If you believe from . all the evidences and circumstances in the case that, when defendant bought the bill in question of these plaintiffs, he did not intend to pay for the goods at any time thereafter, but did intend to get the goods into his possession, and sell them, and pocket the proceeds, or sell them to Desberger; and not to pay the plaintiffs at any time, then you may find that the debt sued for was fraudulently contracted, and you may sustain the attachment on that ground jthat is, on the third ground above stated. But unless. the proof satisfies you that plaintiffs' bill was purchased by the defendant with the intent last stated, that is, with an intent never to pay for them, you ought to find that the third ground of attachment has not been sustained. . There is only one further direetion to be given you, and it is this: In weighing the testimony of the various witnesses, you are the exclusive judges of their credibility, and of the weight to be given to their testimony; and you have the right to ignore the testimony of any witness (if there be any) who as you believe has willfully testified falSElly on this trial as to any material fact in controversy.
'fl. CHARTER OAK
LIFE INs. Co.
(Circuit Oowrt, E. D. Missouri, E. D. October 8, 1887.)
INSURANCE-INSOLVENCY OF COMPANY-,-ACTION BY POLICY·HoLDER.
The defendant, a mutual jnsurance company of Connecticut, but licensed to do business iii Missouri, having. become insolvent, the insurance commis· sioner began proceedings in the supreme court of errors of Connecticut, un. der Laws Conn. 1875, pp. 12, 13, 1, 2, to annul its charter, and wind up its affairs. Holders of running poliCIes.in Missouri commenced suits by attachment in the courts of that state to recover the reserve value of their policies. upon the theory that the insolvency of the company worked a breach of the contract of insurance, and entitled them to sue for the present value thereof. but it was decided (Fry v. Insurance 00.,:11 Fed. Rep. 197) that they were barred by, and must be remitted to, the proceedings in Connecticut. Held, that the jrinciple of the above case applied to an action in Missouri by the holder 0 a death claim.
Suit by Attachmelit by the holder of a death<ililim in a mutual life insurance policy. . Geo. D. Reynolds, for plaintiffs.
WEINGARTNER .". CRARTER OAK LIFE INS. 00.
J. S. F'u1lerum, for defendant.
THAYER, J., (orally.) In the case of J. Weingartner v. Charter Oak Life Insurance Company the only question is whether the case is controlled by the decision in the case of Fry v. Insurance 00., 31 Fed. Rep. 197, which was decided at the last term of this court. In the Fry Case, the holder of a running policy had brought suit by attachment in this jurisdiction against the Charter Oak Life Insurance Company, to recover the reserve value of his policy, upon the theory that the insolvency of the company wQrked a breach of the contract of immrance, and entitled him to sue for the present value of the same. In that case, we held that the Missouri policy-holder was presumed to be acquainted with the charter of the company in which he was insured, and with the insurance laws of the state of Connecticut, that regulated and determined its and to have assented thereto when he became a member of the company by taking out a policy therein; and we further held that under the charter of the company, and the insurance laws of Connecticut, that determined and regnlated its existence, an action by attachment could not be maintained in thii;! jurisdiction by the. holder of a running policy to recover its present value, so long as there was a proceeding pending in the name of the superintendent of insurance of the state of Connecticut against the company, in the courts of that state, to annul its charter, and to liquidate its affairs. We held, in substance, that when the company became insolvent, and proceedings were taken against it, in the statutory form, by the insurance commissioner of Connecticut, to liquidate its affairs, that proceeding, so long as it was pending, operated to preclude policyholders from maintaining a suit against the company in this jurisdiction of the kind above described. In the present case the suit is by the holder of a. death claim, and the fact is supposed to make a distinction between the two cases, and to entitle this particular plaintiff to sue by attachment in this jurisdiction. We think, however, that that view of the case is erroneous. We think that a death claimant occupies the same position as the holder of a running policy; that both claims are claims preferred by persons who are members, or the representatives of members, of the corporation; and that both classes of claimants are bound by the charter of the company, and the insurance laws of the state, which regulate the existence of the company; and that both claims rest upon the same meritorious consideration,-that is to say, the premiums which the respective parties have paid to the company; and that the death claimant cannot maintain a suit by attachment in this jurisdiction as long as the proceeding is pending in the home state, at the instance of the superintendent of in· surance, to annul the charter of the corporation, and liquidate its affairs. The death claimant, as well as the holder of a running policy, should intervene in that proceeding, instead of suing by attachment in this ju. risdiction. Of course, we do not determine in this case, and it is not necessary to determine, whether the holder of a death claim, when the assets ol)i'
the company are distributed, will be entitled to 8 priority over the holder of 8 running policy. That is 8 question which will be determined by the court in which the proceeding to wind up the affairs of the company is pending, and can more appropriately be settled by the Connecticut court according to the construction placed on the insurance laws of that state. All we hold at -this time is that the plaintiff is in the wrong forum, and that the suit cannot be maintained so long as a prior proceeding to wind up the company is pending and undetermined in the state of Connecticut. Therefore the judgment will be the same as in the Pry Que. In other words, judgment will be entered for the defendant.
COGHLAN v. SOUTH CAROLINA R. Co.
(Oircuit (fourt, D. South Oarolina.
When, upon a claim for money. the debtor, before suit brought, tenders a certain sum in lawful tender, absolutely and witllOut condition, to his creditor, and this is refused, he may retain the money, and, on suit brought against him, will be relieved from payment of interest after the date of tender, and from payment of costs, if plaintiff recover no more than the sum tendered. But, if the offer to pay be made pending the suit, it cannot avail him, unless he follow it up with an offer to pay the money into court, or, at the least, submit to a judgment for the sum admitted.
(Syllabu8 by the Oourt.)
H. E. Young, for complainant. Mitchell &; Smith, for defendant.
SIMONTON, J. This is a bill seeking to enforce th e payment of certain bonds, secured by a mortgage ofthe property of the South Carolina Railroad Company. After an order of reference was made in the case, and the report thereon filed, but before the sum actually due was ascertained, the defendant offered to pay to the plaintiff the sum of $44,600, which the defendant alleged was in full of debt and costs. The money was tendered in legal-tender notes. No receipt was demanded. The offer was refused by complainant. The defendant did nothing after the offer was declined, and now insists that the complainant cannot recover interest on his claim accruing after the date of his refusal, to-wit, twentyeighth February, 1883. Where a claim is made on a money demand, and the debtor is prepared to admit a part of the claim, he can tender to the claimant the amount admitted. If the tender be refused, and suit be afterwards instituted, the plaintiff must establish that more was due to him than the amount tendered, else he will lose as well the costs as all interest accruing after the tender. The party making the tender must see that it