AMERICAN LOAN & TRUST CO. tI. EAST & WEST BY. CO. OF ALABAMA.
say: 'And this defendant is informed and beHeves, and upon such information states, that at the time of the creation and acceptance by complainant of the said trusts, as well as at the present time, and at the time of tiling its said bill, the said cotpplainant had no known place of businpss, and no authorized agent in the state of Alabama for the purpose oftransacting its said business; and that by section 4 of article 14 of the constitution of Alabama, which was then and now, in force. it is prescribed that no foreign corporation shall do any business in this state withol!t having at least one known place of business, and an authorized agent or agents, therein; and therefore this defendant pleads andsa.yil that the said complainant, was not authorized by the laws of Alabama, within the state of Alabama, to accept and execute said trusts, and maintain this or any other suit within the state of, Alabama, either in the state courts or in the courts of the United States, for the enJorcement of said trust; and this defendant now pleads said disability in abatement of this suit.' (2) And the complainant furl her excepts because that the said defendant hath reiterated said matter so above excepted to in the second paragraph of hifi said answer, hath not to the best and utmost of his knowledge set forth the alleged agreement referred to by him as' Exhibit D,' attached to the dependent bill filed by Grant Brothers. (3) And the complainant further excepts to the following portion of the third paragraph of said answer of Schley as scandalous, impertinent, ancl insufficient, to-wit, the averment that by acceptance of the trust referred to in the bill of complaint said trust company committed 8 fraud upona confiding public. (4) And the complainant further excepts to all the matter contained in the third paragraph of the said answer (excepting the denials only) as impertinent and insufficient, particularly so much thereof as relates to the manner in which the original capital stock of the mortgagor company is alleged to have been paid up." No further steps were taken in the matter until after the rule-day in July, and the rule-day in August following. In August the delendant moved the court for an order dismissing the exceptions on the , ground that the complainants had not complied with rule 27, in this: that they had not obtained an order referring said exceptions to the master to examine and report on the same 'On or before the succeeding ruleday, which was on the first Monday in July, 1889. During the same month comes. the complainant, and sets down for hearing on the next succeeding rule-day thereafter the exceptions to the insufficient answer of Schley, and asking, if such exceptions be not allowed, then for leave to withdraw said exceptions, and file a general replication. Both of these last motions are now submitted for the determination of the court. Under equity rule 27, which relates to ,scandal and impertinence, and rule 63, which provides for setting down exceptions for insufficiency, the complainant was too late. It may be that under rule 63, and the general equity practice, the court could now, upon cause shown, enlarp;e the time for filing exceptions, so that the complainant could raise the questions which are sought to be raised by his exceptions to the answer; but I have read the exceptions, and conclude that the case will be best speeded by not enlarging the time to file exceptions, but byallowing the complainants to withdraw all exceptions on file, and file a general replication by the first rule-day, which will be the first Monday in December next. v.40F.no.8-25
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:(OirCW£t Gpur; 8. D. New York.
, , A preliminary injunotion will not be granted to restrain foreolosure of a chattel " mortgal'e on property purohased by plaintiff, after the execution of the mortgage, at exeCution sale, on the ground that the mortgage, is contrary to the statutes against ,fraud,u,lent conv,reyanoesi whereplamWl was 1I0t a creditor, and the execution credito-\,s are not made part es to the
David WiUcro:, Jor plaintiff.' Henry Bacon,for defendant.
On motion for preliminary injunction. '
WHEELE:a,J'. ,'This is amotion fora preliminary inju:qptton forec1qsnre of a Ghattel mortga.ge, made by the defendant corporation, of. property,sincepurchased, by ,the plaintiff at a sale on execution against the eorporation. The niortgage is alleged to be void because rriadeafter refusaI:of payment of debts, because made to officers of the corporation, and because ma:de, in insolvency, contrary ,to: the stator the state. '2 Rev. St',N. Y.(7th Ed.) p.1534, § 4; 3 Rev. St. N. Y. (8th Ed.) p,,172Q, § are statutes against fraudulent conveyances. The validity of the conveyances depends upon extrinsic facts; and they are good as the parties to and all others those plaintiff was not a creditor, and not one sought to be sought to be defrauded, and 'had no right to defeat the mortgage until after he bought ,the property. Ilis right is,vested in the particular property which he, bought, and he has no right to have the mortgage set aside wholly., who may have that right are not parties to the su,it, ,either personally or by a :representation of them. all. The case is notJike, v. Smith, 13 Pet. or (Jhapman v. B"ewer, 114 V.,S. 158, Ct. Rep. 799, relied upon by the plaintiff. In those cases the instruments creating the could be set aside., Here the plaintiff is to settle a ,right to specifiQpe1'&Onal propin of a trial at law. The propriety Qf this is erty in a preliminary injunction. Motion denied.
v. J EFFRID.
Maroh 1, 1889.)
'",' ,,: ;
" tCircuit C6wrt,: D.
Rev. St. U·.a."Ii,ll896,provides and cOJltents of the several Bections,hMfsetitMils,a'nd quarter'sections of the public landllshallbe ascertained" 6S follows: "All the corners marked in the surveys returned by the surveyor general shall be established as the proper corners of sectiqus, or subdivisions of seotions, which they were intended to designate; and the corners of half and quarter sections not marked in the surveys shall be placed, as nearly as possible, equidistant