Alpm24, 1885. At the' time of the execution of the note andmortgaga for'UO,OOO,an agreement in writing was entered into between the defendantearl Kretzschmar. and T.S. Coffin, the mortgagee, specifying the conditions upon which it was executed, and the.considerations influencing the mortgagor. This instrument was on' record in the same of.fiee in which the mortgage was recorded, and, I think, was notice to the complainant of the exact facts therein stated, and for what purpose the mortgage.was given. I Although T. S. Coffin, the mortgagee, held this mortgage to secure any advances, made by him to the corporation, and for.sel'v:ices rendered in the past, and to be rendered in the future, the evidenceissatisfactory that the defendant Carl Kretzschmar consented that T. S. Coffin might use it, as he did, to secure a loan of $5,000 to the corporation,-at that time being in need of money, and in avery embarrassing financial condition. It was entirely competent for the mortgagor ,to waive by parol the conditions mentioned in the agreement upon whi¢h the mortgage was executed, and assent to the use: of the mortgage need for money. The assignfor the purpose of meeting the ment of the inortgage as collateral security for the Joan of 85,000 from the complainant appears from .the evidence to have been made with the knowledge and consent of the defendant Carl Kretzschmar. True, in .his testimony there are indications of remonstrance to such a use of the mortF;age, and. some suspicious circumstances are apparent, but no fair · inference from the whole evidence would warrant me in denying the re.lief asked.. ' The evidence of the witnesses introduced by theoomplainant, who are unimpeached, entitle him to a decree. for a foreclosure to satisfy the amount due. No argument has been made or filed by the counsel of defendants, and they appear to have abandoned the case. The interest of defendant Anna Kretzschmar in the property accrued since the mortgage lien and the note for 85,000. Decree will be entered due: PriuC'!pal, $5,000; interest in favor of complainant. (6 per cent per annum) from June 14, 1884, to February 21, 1889, 81,507; insurance paid, $225; protest, $2.04j attorneys' fees, 8}M-
ARMSTRONG 11. CHElUCAL NAT. BAH.
(OW"uit Oourt, 8. D. New York. February il,1889.)
.' T o a bill for an accounting for the surplus of securities pledged for ad. ;-ances thereafter to be Made, averments in the allswer of facts such. as the prior s.tate of the parties' accounts,are needless since these facts may be · proved IJnder. any other a,verment.
Averments referring to facts entitling defendant to affirmatlve relief are only prcperfor a cross-bill, and may be expunged from an answer. .
ARMA:PR01\G V;''CBEMICAL NAT.· JilANK.
In Equity. Bill by David Armstrong, as receiver of the Fidelity National Bank, against the Chemical National' Bank, for an accounting. On motion to expunge certain' paragraphs from the answer. Stephen A. Walker, t;orthe motion. Jones « Roo8cvelt, confJra.
LACOMBE, J. The claim of the complainant is that the deposit of a large quantity of commercial paper made on June 14, 1887, by the Fidelity'National Bank, with the defendant, was a special <me as security for advances thereafter to be made, and it is to obUtin an accounting for the overplus of these pledged securities remaining after payment of s\lch advances that the suit is brought. The defendant has not filed a crossits answer sets out that at the time of the appointment of the hill, receiver the Fidelity Bank was a debtor to the defendant in a large Bum of money, in part advanced as loans at different times before and after June 14, 1887, and in part collected by said bank as defendant's agent. That as such creditor it is entitled to receive a dividend from the assets of the bank, and "asks that, if it be adjudged on the accounting in this suit that the defendant is not entitled to retain and have the proceeds of the collection of said securities applied to the payment of the indebtednessof .the said bank to this defendant, the court then ascertain and determine the amount of the indehtedness of the said bank to the derendaQt, and the amount of the claim of the delendant againElt the said bank, as it.existed at the time of the appointment of the receiver. (June 21, 1887,)and that said receiver be directed to pay defemlanta dividend of 25 per cent.,"-therate of dividend already paid to other creditors, -"and other dividends from time to time 80S the same shall hereafter be made,"'and asks that an account be taken of another lot of securities delivered to the defendant by the Fidelity Bank prior toJ une 14, 1887, and subsequently returned by the defendllntto the complainant. To ,these 'psrawoaphs of the answer complainant excepts for impertinence, and moves that the same be expunged from the answer. So far'as these averments refer to facts-such as the, prior state of the accoull!S between the banks-beadllg upon the issue tenllered by the bill, viz., that the deposit referred to therein was special, and pledged solely 'as a security for future indebtedness, they are unnecessary. The facts maybe proved under.the other averments in the answer. So far all these averments excepted to refer. to facts entitling the defendant to,affirmative relief against the complainllnt, they are proper only in a cross-bill. The motion to expunge is granted.
UNITED STATES 11. DAVIS.
(Di8trict Court, E. D. Missouri, E. D.
INTERNAL REVENUE-SPECIAL TAX-PARTNERSffiP-RIGHT OF SUCCESSOR.
Rev. St. U. S. § 3234. authorizes a partnership to carryon the business of retailing liquors and cigars upon the payment of but one special tax. Section 8241 provides that upon the death of one who has paid the 8pecial tax his legal representatives may continue the business in the same place, and in the same manner, without the payment of an additional tax, and also that the licensee may; upon removal from the place mentioned in the license, continue the business at the place to which he removed without paying an additional 'tax. Held, tbat a member of a firm who has acquired all the interests of the the other members in the firm assets, and succeeded to the business, may carry it on under a license issued to the firm, at a place other than the old place of business of the firm.
Information for Retailing Liquor and Tobacco without paying special tax. Thomas P. Bashaw, U. S. Dist. Atty.' A. J. Davis; in pro. per.
THAYER, J. The only question to be determined in this case is whether a member of a firm who has acquired all the interest of the other members of the firm in the firm assets, and has succeeded to its busilless,' is entitled to do business as a retailer of liquor and manufactured tobacco under a license or special tax receipt issued to the firm before· its dissolution, at any other place than the old place of business of the firm. In the case of U. S. v. Glab,99 Uo S. 225, it was held that a partner who had succeeded by purchase to the busIness of the firm might continue to do business for the unexpired term of the license, at the old stand; but it was not expressly determined whether such license could be lawfully transferred, so as to authorize a continuation of the same business by the remaining partners at some other place in the same city or town. Following sOPJ.e intimations given in that decision, the practice has been, as I am informed, to refuse to allow such transfers, although it is conceded that a: firm has the right, if no changes have taken place in its membership, to have its license transferred from one place to another, as its place of business is changed. I regard the limitation in the respect last noted, upon the right of a remaining partner of a firm who has succeeded to its business to have the firm license transferred, as unwarranted by anything contained in the decision above reterred to, or by the statute regulating the collection of special taxes. Sections 3232-3242 inclusive. l If the remaining member of a firm, in case of dissolution, can use the
1"8ec.3234. Any number of persons doing business in copartnership at anyone place Ihall be required to pay but one special tax." "Sec. 3241. When any person who has paid t,lJe special for any trade or business dies, his wife or child, or executors or administrators, or other legal representatives, :may occupy the house or premises, and in like manner carryon for the residue of the term for which the tax is paid the same trade or business as the deceased before carried on, in the same house, and upon the same premises, without the payment of any