mentand't4edistUIer mRy be fairly inferred froIh the legislation lonking to distiller's relief, when not in fault, in this class of cases. But I do not:think it.necessary tl) go beyond the words of the statute for the se.lsl:dn which the term "removal" is used. Section provides for a transfer in certain cases from one warehouse to another. Evidently the tax would not be at once due on such a removal. Section 3294 uses the as the equivalent of" remove." "The distilled spirits word Inay, on paymentof the'tax, be withdrawn from," etc. And amended section 3293,. after, saying that the tax shall be due before and at the time the spirits are "withdrawn," directs that the bond for payment of the tax shall be conditioned; for its payment before "removal" from the distillery warehouse. The statute thus itself construes the word "removal" tomeall "withdrawaL": ;A withdrawal cannot be the work of chance or accident.' It must be the act of an intelligent agent. lam, then, of the opinion that the tax on the spirits; for payment of which the- bODQ. in suit was given, was not due when tlie suit was instituted; ,Let an order be drawn in accordanoe with this opinion, and fol-' lowing ,the entry made at the trial, .
COTTRELL t1. TENNEY
(Circuit Court, N.,D. IUinO'is. January 4; 1899.)
1. spil;I;lCY wx;e*the ·. au\! in caused judgment' I/.otes'to be,jI1Q.de wlthout conillderation, and had Judgments entered thereon; thil.'t subsequently "executions were issued thereon, and levied on the prop,erty,:aneJassets of, said corporation, Blld that afterwards said defendants to court that su,c.h judgments were a Jegal and binding "obligation Qn ',said comilaf1:yand procured an order of aaid court for the sale of all the assets of sauicorpor;J.tlOD, and that the proceeds pf such sale be 'applied ,to said ..judgments';" in consequence whereof the plaIntiff's stock was rendered valuelesS. Held, that as these allegations showed that the sale was not made under the executions in the ordinary course of enforcing judgments, but :was, ,I;n virtue of sllc,me ancillary: prOClledingl!l, the decla.ratioJ;l was Insufficient in not' settit),g out enougb thereof to show whether such pl;'Oceedings were of a nature to bind the stockholders.' ' , ,
J:,.IIIlITATIOl'l; 011' AOTIONS-I'X<1ilADINGc-ANTIOIPA'!'ING DEPENBB.'
, , An in.a .that defer:'dants concealed the cause , o,f aOtlontr,oDi plmntlff, notst,atmg tbe 'taotsconstitutmg such concealment, is not the .case out oftl:/.ellperation of the statute of limitations, and tenders the 'declaration demurrable, eveJ:l though it was not necessary fllr plaintiff to attempt to avoid the effect of the statute. '
At Law. , Action by Calvert 'P. Cottrell against Daniel K. Tenney and others for. 'conspiracy to wrecK the John B. Jeffrey Printing Company, wheteof cQmplainant wass stockholder. Heard on demurrer to , am£inded compl8lint. SU'stained. lh088C'11p.k Wean, for plnihtitf. Tenney,; 6/hurch &; Cojfetm. for D. K. Tenny. ,Barnum. &;, 'Barnum; lor J efIreyPrilltingCo.'
'CO'rTRELL V. TENN1!lY.
BLODGETT,J'.This 'Case is now before the court upon a demurrer to the' amended declaration. The amended declaration contains three counts. The first two counts set out, in substance,that plaintiff was the owner of 75 shares of the capital stock, of the value of $7,500, of the John B. Jeffrey Printing Company, a corporation organized under the la,vs of Illinois, and doing business in the city of Chicago,as a printing company; that some time before the 1st day of May,1884, the defendants conspired together to wreck said company, and despoil it of its property, and, in pursuance of such conspiracy, unlawfully caused judgment notes to be made, which were wholly without consideration moving to said company, which amounted in the aggregate to about $50,000, and on the 1st day of May, 1884, unlawfully, and in' purs1':tance ofsaid conspiracy, caused judgments to be entered in the superior <:ourt of Cook county, in this city, upou said sO-'callltd jUdgment notes; that, after the entry of said judgments, executions were issued thereon and IElViedupon the property and assetsof said corporation, and 'that after",ards said defendants falsely represented to said court that said judgments were a legal and binding obligation upon said company, and thereby procured an order of said court for the sale of all of the 'asse'ts bf said' corporation, and that the proceeds of such sale be applied on said judgliie'nts, and that,' in pursuance,or such order, the propertY,of said corporation, all arid singular, wasoffeted for public sale, and the :Said became the purchaser therp-6f, and indorsed or applied the amount of purchase money he had bid therefor upon said jiidgments,Rlld afterwarrls, and in pursuance of said conspiracy; said all and singular, the' pI'opertyso purchased to anew <:orporation, which had been organized for that purpose, alldthereby deprived the' said John B. Jeffrey Printing Company of all its assets, and made the stock of plaintiff wholly valueless. The third count is ,substantially like the first two, except that it does not charge that the judgment notes were given consiq.eration. but charges that certain proceedings were had in the supeJ:i:dr court ,wherein, by order of -said court, th,e,p\,oceedspf said propefty were on said judgments. In all three of the counts it is alleged that the defendants fraudulently concealed the cause of Rction from the plaintiff- uutil'jft, short time befqre the commencement of th\s suit. in all three. of tbesecounts to give the court ,to understand that the sale of ,the assets of the John B. Jeffrey Company was not made to the defend:8I;1t, the e;x;ecution, and in due. :course, of the ,of the Judgments at law; but that, on the contrary, such sales were made by virtue of SOme ancillary or other proceedings had in
Having charged a sale by virtue of certain judicial proceedings, I am <:lear the f!aintiff shoul4 have set out enough of those ;proceedings, to, enable the .court to determme whether they were such ptoceedings the of the defendant company. For aught the court' cab gup-ss from the .statements made, proceedings maybaye been instituted under the sections of Ulwin regard td' corp'0-
:ratione, providing, for winding up ·insolvent corpQl"ll.tiol1$, it being' nowhere; ll.Y:erred, in either count of, this declaration, thllt thisJohn B. J effray Printing Company was solvent, and able to pay its debts. In the third' cpnnt there is no allegationb.nt, what these judgments were isa legitimate sned in due course of buainess, for the purpose of indebtedness of the said corporation, and hence 1 fail to see how the facts alleged can amount to a fraudulent conspiracy to wreck thecorporation. : The ,transactions complained of seem to have occurred in the early part of the year 1884,more than years berote tne bringmg of this suit,rand presumably the plaintiff :bas put the averment in regard to fraudltlentconcealment,of the plaintiff's cause of action into, each of these of taking the case out of the operation of the stat.ute of Umitations. I do not think this averment of fraudulent conceal· ment is ,sufficient., It is made in the precise language of the statute.bllt it seems to ,roe that the plaintiff should have stated in what the fraudulent concealmmtconsisted, so that the defendant would beto JIleet and l!luch aJIegatipns by plea and proof. Probably it,wl!,8 not necessary for the plaintiffs in their declaration to have atteIrJpted 'evade the effect of the statute of limitationl'l, but they ,might, have lert' 1hat to the qefenc4nt to 'ele,ct or not the defendant would inl!list upon the ,bar of the but, if the plaintiff attempt& to take., out of operation of this statute, he shou'd setup, facts. whicl;l, if proven" wquld effectually accomplish that purpose; in other worc..!4, ,he state inwha,t the fraudulent c<?11cealment con· these reaSOo!! the demurrer to each count .01 the &UUended sisted. dec1araUun ,iii .' '
I VJ;:S v.
'.' ,. (CCrtmft '1"
Deceinber 19, 189L)
cotwe; D. Delaware.
A \lequ",t of "12,000 01 .the South W Loan of Pennaylvan\..,- by .. person owblllg $10,000 Worth of boods knowo by that designation, isa delDonstra. tlve; and :not.Bpeoifio,legllCy,and la not adeemed by thepayment.of the bondabe, foJ'e tile, ,; " , ' .
,Actionby,'A,lffoo S. Ivee Hradlol,"iJ" to recover ",legl1cy. Gedrge H. Batu, for plaitltifi.·· .
J, uugrllient tor plaintiff.
· " ,', ". · 'J
ainicable _lOtion t'or of the CO}lf,t on,&, statenlent of facts .to, her andallP9lDted the pefenuant her ex'ec,utor..
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