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(112 Me. 273)

attention, supposing him to be able to súpALLEN V. INHABITANTS OF LUBEC. port himself and in no further need of pau(Supreme Judicial Court of Maine.

Oct. 22. per supplies. 1914.)

The plaintiff claims, on the contrary, that PAUPERS (88 39, 52*) — LIABILITY OF TOWN-self and wife and was in need of relief, and

Loring J. Allen was not able to support himNOTICE-SUFFICIENCY.

Under Rev. St. c. 27, § 45, providing that that he (the plaintiff), a son, was not able to towns shall pay expenses necessarily incurred support him, of which he says he notified the for the relief of paupers by an inhabitant not overseers of the poor of Lubec on the 5th of liable for their support, after notice and request to the overseers, until provision is made for September, 1912. them, where plaintiff, who was financially un The defendant contends: (1) That Loring able to support his father and mother, notified J. Allen when he came from the Maine Genone of the overseers of the condition of his fa- eral Hospital on the 22d day of August, 1912, ther and told him that he was unable to support him and that his father knew this, and was was able to support himself and was not in told by the overseer that he would see what need of pauper supplies. (2) That if he was could be done, and after waiting some time not able to support himself and stood in plaintiff saw another overseer and told him that if he did not find some means of removing and need of pauper supplies, then his son, the supporting the father plaintiff would have to see plaintiff, was liable for his support. (3) That if he could get his pay, the notice, as a mat- no notice or request was made to the overter of law, contained all the elements of infor- seers of the poor by the plaintiff such as is mation required by the statute, and whether they were so clearly and expressly stated as to contemplated by R. S. c. 27, § 45. enable the officers to understand them was a The presiding justice presented these isquestion for the jury, especially where the fa- sues so clearly to the jury that we quote his ther, prior to the notice, had been a pauper up- charge covering these points: or the town for eight or ten years. [Ed. Note. For other cases, see Paupers,

"To restate it: In order for this plaintiff to Cent. Dig. $S 162–179, 215–237; Dec. Dig. ss recover in this action he must prove by a fair 39, 52.*]

preponderance of the evidence, first, that his fa

ther was destitute and in need of immediate reOn Motion from Supreme Judicial Court, right straight down through. If he fails in that;

lief at the time these supplies were furnished Washington County, at Law.

you stop right there. If he succeeds in that, you Action by Richard M. Allen against the move to the next point-that he himself was not inhabitants of Lubec. Verdict for plaintiff, financially able to take care of his father and and defendant moves for a new trial. Mo- that would stop the case.

mother. If you find he was financially able,

If you find he was tion overruled.

not, then you move on, and the next point is the Argued before SAVAGE, C. J., and SPEAR, question of notice. If you find the notice given KING, HALEY, and HANSON, JJ.

was such as the defendants claim here, that is

the end of the case; plaintiff cannot recover. L. D. Lamond, of Eastport, for plaintiff. On the other hand, if you find such a notice was

given as the statute requires and as the plaintiff J. H. Gray, of Lubec, for defendant.

testifies to, so they had full notice of what he

expected, and the condition, and everything, SPEAR, J. In this action plaintiff seeks then he would be entitled to recover for his necto recover of defendant town, under the processary expenses, such as you find them to be, visions of R. S. c. 27, $ 45, the sum of $213.- connected with the relief of his father.” 42, for supplies alleged to have been fur

The first two questions presented to the

The nished L. J. Allen and his wife, who, it is jury involved pure questions of fact. alleged, stood in need of immediate relief, jury found against the defendants upon each and chargeable to defendants. The account question. A careful reading of the evidence of plaintiff covers a period extending from does not reveal any such error on the part August 22, 1912, to June 28, 1913. The jury of the jury as requires the interference of the found for the plaintiff for $168.61, and the court. The third contention may be said to case is before the court upon the usual mo- have presented a mixed question of law and tion for a new trial. The facts are as fol- fact. The notice given by the plaintiff as the lows: In June, 1912, and prior thereto, Lor-jury found may be stated substantially as ing J. Allen and wife were paupers in the follows: town of Lubec, Mr. Allen, being sick, was

“I notified them (the overseers) about the 5th sent by the overseers of the poor of Lubec, led the condition of my father, and told him I

of September, Mr. Reynolds, I believe. I statJune 17, 1912, to the Maine General Hos- was unable to support him, and my father

knew pital at Portland, for treatment. He return- I was. He told me that he would see Mr. ed August 22, 1912, and went directly to his Baker, another overseer, and see what could be son's house, the plaintiff, to live, where his ply, and I sent and see Mr. Baker, and see what

, I had no wife, Amanda Allen, had been stopping while could be done. I waited another week and I had he was away. At the hospital he was treat- no reply, and I went and see Mr. Baker and I ed for piles and rupture, and for no other didn't find some means of removing and sup

Baker if he trouble, and from information gained from porting him I would have to see if I could get the hospital superintendent it was claimed my pay. I never heard anything more, and I Mr. Allen came home a well man and able did. Now I am unable to.” to do light work; hence the overseers of the This conversation was corroborated by his poor say they gave the matter no further wife.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

87.*]

As a matter of law, we think this notice | 4. HUSBAND AND WIFE (8 110*)-WIFE'S SEPcontained all the elements of information ARATE ESTATE-PROPERTY CONSTITUTING. required by the statute to be given to the control of and collected the income from her

Where a wife retained the possession and officers of the defendant town. Then arises personal property free from the domination and the question whether these elements were so supervision of her husband, and the husband clearly and expressly stated as to enable the agreed to repay loans made to him by the wife,

and treated money's loaned him by her and ali officers to understand them. This, of course, of her securities as her sole and separate estate, was a question of fact for the jury under all such property was her sole and separate estate, the evidence in the case. It appears as a under the married woman's act of 1849 (Laws conceded fact that L. J. Allen had prior to 1849, c. 20), especially where the husband agreed

to and did assign an insurance policy to secure this notice been a pauper upon the town of such loans, in reliance upon which agreement Lubec for some eight or ten years. It there. subsequent loans were made. fore seemed incredible that the selectmen of [Ed. Note.-For other cases, see Husband and the town, with full knowledge of this fact, Wife, Cent. Dig. $$ 396–407; Dec. Dig. $ 110.*] would have failed to fully understand the 5. HUSBAND AND WIFE (8 87*)–CONTRACTS full purport and meaning of the above notice BY WIFE-GUARANTY. given them by the plaintiff. While it was

A guaranty by a wife of a loan by a third not logical nor comprehensive, it yet must person to her husband was unenforceable, where

the husband and wife were married prior to have been sufficient to convey to the town 1877. officers, to two of whom it was communicat

[Ed. Note. For other cases, see Husband and ed, at different times, that they were re- Wife, Cent. Dig. 88 346–353, 798; Dec. Dig. 8 quested to remove L. J. Allen and take care of him or the plaintiff would expect them to 6. HUSBAND AND WIFE (8 87*)–CONTRACTS pay him for his support after the date of the BY WIFE-GUARANTY OR LOAN. notice. At any rate the jury found that the

Where, a husband having collected money notice was sufficient to convey this informa- for a third person, it was agreed between him, tion, and we are unable to discover any good person would loan the money to the wife, and reason for disturbing their verdict upon this she would loan it to the husband, and all of question.

the parties intended this as an absolute can

cellation of the husband's debt to the third perMotion overruled.

son, the husband's agreement to repay the loan from the wife was not unenforceable on the

ground that she was a mere guarantor of his (88 Conn. 536)

debt, though the money never left the physical WAGNER v. MUTUAL LIFE INS. CO. OF possession of the husband. NEW YORK et al.

[Ed. Note.-For other cases, see Husband and (Supreme Court of Errors of Connecticut. Oct. Wife, Cent. Dig. 88 346-353, 798; Dec. Dig. 8 8, 1914.)

87.*] 1. HUSBAND AND WIFE (8 43*)-CONTRACTS 7. APPEAL AND ERROR (§ 173*)-OBJECTIONS

BETWEEN HUSBAND AND WIFE-ENFORCEA IN LOWER COURT-NECESSITY-PLEADING. BILITY.

In a suit in the nature of interpleader to Where loans by a wife to her husband and determine the rights of parties in the proceeds an assignment of an insurance policy by the of an insurance policy which plaintiff claimed husband to the wife to secure such loans were was assigned to her as security for a debt, made in good faith and upon a valuable consid- where the several items making up the consideration, they will be enforced in equity; the eration for the assignment were not disclosed terms of the contracts being just, reasonable, until the trial, and limitations were therefore and certain.

not pleaded, but the claim that plaintiff's debt [Ed. Note. For other cases, see Husband and was barred by limitations was made in the arWife, Cent. Dig. $ 226; Dec. Dig. 43.*] gument on the trial, it was available on appeal. 2. HUSBAND AND WIFE ($ 136*)-RIGHT TO

[Ed. Note. For other cases, see Appeal and POSSESSION AND INCOME OF WIFE'S PER- Error, Cent. Dig. 88 1079–1089, 1091-1093, SONAL ESTATE.

1095–1098, 1101-1120; Dec. Dig. § 173.*] Under the married woman's act of 1849 8. LIMITATION OF ACTIONS (873*)-PERSONS (Laws 1849, c. 20), applicable to a husband and

BARRED BY STATUTE. wife who were married in 1873 and did not

Where a wife loaned her husband money thereafter avail themselves of the act of 1877 from her sole and separate estate limitations (Laws 1877, c. 114), the husband was entitled to ran against the loan as in the case of a transthe possession of the wife's personal property action between strangers. and the income therefrom not held as her sole and separate estate.

[Ed. Note.-For other cases, see Limitation [Ed. Note. For other cases, see Husband and of Actions, Cent. Dig. $$ 399-412; Dec. Dig. 8 Wife, Cent. Dig. $$ 508–511; Dec. Dig. § 136.*]

73.*] 3. HUSBAND AND WIFE ($ 179*)-WIFE's SEP-9. LIMITATION OF ACTIONS ($ 148*) - AC

ARATE ESTATE RIGHTS AND POWERS OF KNOWLEDGMENT OR NEW PROMISE-GIVING WIFE.

OF SECURITY. Under the mai ied woman's act of 1849 The assignment of an insurance policy as (Laws 1849, c. 20), personal property held as security for a debt waived the benefit of the the wife's sole and separate estate was hers to statute of limitations and operated as an ucdo with as she pleased, and she might loan it equivocal acknowledgment of the existence of to her husband and make any contract in rela- the debt from which the law implied a promise tion thereto that a stranger could make with to pay the debt. his property.

[Ed. Note.-For other cases, see Limitation of [Ed, Note.-For other cases, see Husband and Actions, Cent. Dig. $8 597-603; Dec. Dig. 8 Wife, Cent. Dig. 88 711, 939; Dec. Dig. $ 179.*] | 148.*] *For other cases see same topic and sertion NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

10. EVIDENCE ($ 419*)-PAROL EVIDENCE TO, stead as administrator d. b. n. c. t. a. From SHOW CONSIDERATION.

1900 to his death in 1912, Mr. Wagner had The consideration for the assignment of a life insurance policy was open to oral proof, a policy of insurance on his life in the Equiand, in determining whether it was assigned as table Life Assurance Society and one in the security for a debt, the court properly viewed Mutual Life Insurance Company. the transaction in the light of the facts and

In January, 1900, Mrs. Wagner received by circumstances under which it was made.

[Ed. Note. For other cases, see Evidence, distribution from her father's estate oneCent. Dig. $8 1912-1928; Dec. Dig. 8 419.*j third of a $1,500 debt owed by Mr. Wagner; 11. LIMITATION OF ACTIONS (151*)-New the other two-thirds were inherited by her PROMISE-GIVING OF NOTE.

brothers, who gave the same to her. Mr. Where a husband, indebted to his wife on Wagner did not pay over this sum to Mrs. loans aggregating about $11,000, gave her notes Wagner, but they agreed that Mr. Wagner for $1,000 and $2,000 for the purpose of ac- should hold it as a loan from her, which he knowledging the debt and renewing his promise to pay the several loans and to prevent promised to repay, with interest. their outlawing, the giving of the notes con About March 1, 1901, Mr. Wagner collected stituted an unequivocal acknowledgment of the entire debt, from which the law would imply $1,200 due Mrs. Wagner for a tort injury to a promise to pay it

her person, and thereafter Mr. Wagner bor[Ed. Note.--For other cases, see Limitation of rowed this sum of Mrs. Wagner upon his Actions, Cent. Dig. $8 614–618, 620; Dec. Dig. promise to repay the same, with interest. § 151.*]

It did not appear that he ever paid over 12. EXECUTORS AND ADMINISTRATORS (8 415*) this sum so collected to his wife, but he al-SETTLEMENT

OF
INSOLVENT ESTATES-

ways held and treated and acknowledged it WAIVER OF SECURITY.

Under Gen. St. 1902, 337, providing that to be her sole and separate estate. if any creditor, having security for his claim Prior to December 1, 1904, there was deagainst an insolvent estate upon any property livered to Mrs. Wagner stock to the amount of the estate, shall present his claim to the of $2,500 as a gift to her. This was sold and commissioners on the estate, they shall inquire into the cash value of the security, and, if they reinvested by her. These investments were allow such claim, the executor, administrator, in part sold, and the proceeds, $1,600, loaned or trustee shall notify the creditor of the by Mrs. Wagner to her husband upon his amount allowed and the value reported, and that, unless such creditor shall lodge with the promise to repay the same, with interest. court a certificate of his election to relinquish Mr. and Mrs. Wagner and the donor recogsuch security, he shall be entitled to a dividend nized that this gift became her sole and from the estate

only upon the excess of his claim separate estate. above the value of the security, the presentation of a claim to the commissioners, without

Mr. Wagner collected for a Mrs. Tousley notice to them of the security held and its al- $2,000, and Mrs. Tousley agreed to loan this lowance by them, was not an election to re- sum to Mrs. Wagner October 1, 1905, and

in the security, and did not defeat the creditor's Mrs. Wagner in turn loaned it to Mr. Wagright to the security and to a dividend upon ner. This sum was not in fact paid over to the excess of the debt.

either Mrs. Tousley or to Mrs. Wagner, but [Ed. Note. For other cases, see Executors all the parties intended this as a loan from and Administrators, Cent. Dig: s8 1863-1873; Mrs. Tousley to Mrs. Wagner, and then from Dec. Dig. § 415.*]

Mrs. Wagner to Mr. Wagner, and a cancellaAppeal from Superior Court, New Haven tion of the debt of Mr. Wagner to Mrs. County; Edwain B. Gager, Judge.

Tousley. Suit in the nature of interpleader by Es Mrs. Wagner sold 11 shares of New Haven tellah C. Wagner against the Mutual Life In- Water Company stock, inherited from her surance Company of New York and others, father, and from the proceeds loaned Mr. to determine the rights of the respective Wagner $1,000. Mrs. Wagner borrowed upon claimants to a sum of money paid into court the stock inherited from her father $450, and by the defendant named as the amount due loaned the same to Mr. Wagner. from it under a policy upon the life of plain

Mr. Wagner always recognized these sevtiff's deceased husband. Facts found anderal loans as debts owed by him to his wife. judgment rendered for plaintiff for $9,028, Mr. Wagner always treated the moneys loanand the defendant People's Bank & Trusted him and Mrs. Wagner's stocks and bonds Company, administrator d. b. n. c. t. a. of as her sole and separate estate. He never the decedent, appeals. Affirmed.

took or claimed the income from her investS. Harrison Wagner and plaintiff, Estel- ments. She collected the income and had lah C. Wagner, intermarried in 1873, and did entire control of them. not thereafter avail themselves of the mar Shortly after the first loan, Mr. Wagner ried woman's act of 1877 (Laws 1877, c. 114). agreed with Mrs. Wagner to assign to her Mr. Wagner died June 17, 1912, leaving a $25,000 of insurance upon his life to secure will in which Mrs. Wagner was named as the payment of the loan made and those that executrix. She qualified as such July 11, might thereafter be made with interest. 1912, and continued as executrix until July And Mrs. Wagner made the loans subsequent 1, 1913, when she resigned, and the People's to the first loan in reliance upon said agreeBank & Trust Company was appointed in her ment. In pursuance of said agreement Mr.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Wagner assigned to Mrs. Wagner, in Janu- , and to the loan of the moneys received by ary, 1912, the Equitable policy, the proceeds Mr. Wagner for the tort injury to Mrs. Wagof which she collected and credited upon her ner. claim, and on March 29, 1912, the Mutual [1] The several loans and the conveyance Life policy, the proceeds of which form the assigning the policy of insurance were made subject of this action. These assignments in good faith, upon a valuable consideration, were made in acknowledgment of these loans and must, in this equitable action, be enand in recognition of them as an existing forced, since the terms of the contracts are claim and to carry into effect his said prom-just, reasonable, and certain. Boland V. ises to secure the loans, with interest. There- O'Neil, 72 Conn. 217, 44 Atl. 15; Brown v. after, in May and June, 1912, Mrs. Wagner Clark, 80 Conn. 419, 68 Atl. 1001; Clarke v. paid premiums due on said policies, amount- Black, 78 Conn. 467, 62 Atl. 757; Corr's Aping to $658.41. The consideration for the peal, 62 Conn. 403, 26 Atl. 473; Haussman assignments were these loans, with interest v. Burnham, 59 Conn. 117, 22 Atl. 1065, 21 to December 9, 1913, aggregating $11,900. Am. St. Rep. 74. Mr. and Mrs. Wagner believed at this time [2, 3] Under the statute of 1849 (Laws 1849, Mr. Wagner was solvent, and did not make c. 20), applicable to Mr. and Mrs. Wagner, Mr. the assignments in fraud of his creditors nor Wagner was entitled to the possession of all of in view of his insolvency.

her personal property and the income thereOn March 15, 1910, Mr. Wagner gave to from not held as her sole and separate esMrs. Wagner his demand note for $2,000, tate. Personal property held to her sole and and on March 15, 1912, his demand note for separate estate was hers to do with as she $1,000. These notes were not given in dis- pleased; she might loan it to her husband charge of the entire debt, but for the pur- and make any contract in relation to it that pose of acknowledging the debt to her and of a stranger could make with his property. renewing his promise to pay the several loans Comstock's Appeal, 55 Conn. 214, 220, 10 Atl. and to prevent their outlawing. Mrs. Wag- 559; Imlay v. Huntington, 20 Conn. 146. ner, as executrix, represented said estate as

[4] From the finding it appears that Mrs. insolvent under advice of counsel, but did not Wagner always retained the possession and know at the time the estate was in fact control of, and collected the income from, insolvent. The estate consists of many se- her personal property, free from the dominacurities of uncertain value, and it cannot be tion and supervision of her husband, and now found that the estate is in fact insolvent, that, as to the proceeds of the securities although highly probable that Mr. Wagner sold and loaned him and all other loans was in fact insolvent on March 29, 1912, the made, he agreed to repay the same, with indate of the assignment of the Mutual Life terest. It is also found that Mr. Wagner alpolicy.

ways treated the moneys loaned him by Mrs. Harrison Hewitt, of New Haven, for ap- Wagner, and all of her securities, as her pellant. George M. Wallace and George E. sole and separate estate. The finding makes Beers, both of New Haven, for appellee. this property her sole and separate estate.

It also appears from the finding that shortly WHEELER, J. (after stating the facts as after the first loan Mr. Wagner agreed to above). The reasons of appeal based upon assign to Mrs. Wagner $25,000 of life insurthe exceptions to the finding are not in due ance to secure to her the payment of the loan form. Practice Book 1908, p. 268, § 9. The made and others which might be made, with record satisfies us that neither of the several interest. And the loans subsequently made exceptions (if made in accordance with our were in reliance upon such agreement, and prescribed method) would have furnished the assignments of policies thereafter made valid ground of appeal.

were in fulfillment of this agreement. These The first and second reasons of appeal acts completely divested the husband of all raise the point that all of these contracts of marital control of these items of her proploan and the assignment were invalid, since erty, and, if they were not already the sole Mr. and Mrs. Wagner were married prior to and separate property of the wife, made them 1877.

such. Bidwell v. Beckwith, 86 Conn. 463, The third reason of appeal is that Mr. 469, 85 Atl. 682. Wagner's agreement to pay Mrs. Wagner in The finding specifically negatives reasons terest on her loans was without considera- of appeal 3 and 5 that these loans and the tion, since he was entitled to the income of assignment were in fraud of creditors and her personal property.

void as to them. The seventh reason of appeal is that Mr. [5, 6] The sixth reason of appeal is that Wagner had not abandoned his marital rights Mrs. Wagner was a mere guarantor of a loan as to the several items of property of Mrs. by Mrs. Tousley to Mr. Wagner. If Mrs. Wagner loaned to him, so as to constitute Wagner was a mere guarantor, the sum so them her sole and separate estate.

guaranteed could not be included in the conThe eighth and ninth reasons of appeal are sideration for the assignments, for the reaintended to be identical with the seventh, son that the contract of guaranty would be with special application to the loan of moneys unenforceable, since Mr. and Mrs. Wagner received from Mrs. Wagner's father's estatel were married prior to April 20, 1877. Free

man's Appeal, 68 Conn. 533, 539, 37 Atl. 420, Caswell, 121 Ga. 254, 48 S. E. 956, 2 Ann. 37 L. R. A. 452, 57 Am. St. Rep. 112; Nation- Cas. 269; Balch v. Onion, 4 Cush. (Mass.) al Bank v. Smith, 43 Conn. 327.

559; Begue v. St. Marc, 47 La. Ann. 1151, The finding negatives the claim that the 17 South. 700; 25 Cyc. 1343. transaction was one of guaranty. It recites [10] The trial court properly viewed the that Mr. Wagner had in his possession $2,- transaction of the assignment in the light of 000 collected by him and belonging to Mrs. the facts and circumstances under which it Tousley, and that Mrs. Tousley agreed to was made. The consideration for the asloan and did loan this sum to Mrs. Wagner, signment was open to oral proof. It very and she in turn loaned it to Mr. Wagner. plainly involved, as the court has found, a The $2,000 was not in fact paid over to Mrs. recognition of these several loans as present Tousley, or by her paid over to Mrs. Wagner, obligations, and constituted an agreement or by Mrs. Wagner paid over to Mr. Wagner. that the policy of insurance should stand as All the parties intended this as a loan to Mrs. security for their payment, with interest in Wagner and an absolute cancellation of the accordance with the original agreement, in debt of Mr. Wagner to Mrs. Tousley.

reliance upon which all but the first of these We think the finding is controlling, and it loans had been made. The assignment was follows, as a necessary conclusion from the a promise to pay these loans by providing subordinate facts found, that Mrs. Wagner the means for so doing. loaned Mr. Wagner the $2,000, and was [11] The giving of the notes were also unnot a mere guarantor of his debt. Nor do equivocal acknowledgments of the entire we think the fact that this sum remained in debt from which the law would imply a the physical possession of Mr. Wagner, as a promise to pay them. matter of law, deprives the transaction of the [12] Reason of appeal 11 is that the preseffect intended by the parties.

entation by Mrs. Wagner of her claim to [7-9] Reasons of appeal 10, and a part of 9, the commissioners on the insolvent estate of are that all claims accruing prior to July Mr. Wagner, without notice to them of the 1, 1906, are within the statute of limitations, security held by her as security for her claim and that the assignment of the policy of in- and its allowance, was an election by her to surance did not constitute a new promise receive her claim in that way rather than under General Statutes, $ 707, taking the from the security of this policy assigned to claims out of the statute. The statute was her. not pleaded, and could not have been, since The procedure for a creditor of an insolthe several items making up the consideration vent estate, who has security for his claim, for the assignment of the policy was not is that prescribed by General Statutes, $ 337. disclosed until the trial. This claim was It is his duty to present his claim to the commade in the argument in the trial below, and missioners and notify them of his security hence is available on appeal. Since Mrs. and their duty to allow or disallow the claim Wagner loaned these several sums for her and find the value of the security and resole and separate estate, the statute runs port the same to the court of probate, and against her, as in the case of a transaction if they allow such claim it becomes the duty between strangers.

of the executor, administrator, or trustee This is an equitable action of interpleader to notify the creditor of the claim allowed to determine the ownership of the proceeds and the value of the security found. And, of an insurance policy which the court finds unless within 15 days after such notice he was assigned as security for the payment of relinquishes such security, he shall be encertain debts owed the plaintiff by the as-titled only to a dividend upon the excess of sured. At the time of the assignment, unless his claim above the value of his security. there had previously been a new promise to The statute does not in terms prescribe the jay, these debts were barred. Though the procedure in case he fails to notify the comdebts were then barred, that defense could missioners of his security and fails to make not be made subsequent to the assignment the election prescribed. It does not provide of the policy to secure their payment. The that the presentation of his claim is a waiver giving of security for a debt barred by the of his security. statute of limitations waives the benefit of In the absence of a contrary statutory the statute and operates as an unequivocal procedure, one who holds security for his acknowledgment of the existence of the debt, debt may pursue his remedy on the debt from which the law implies a promise to pay and on the security at the same time. He the debt.

will not be permitted in any case to obtain It is an acknowledgment of liability as sig. more than his debt. If a dividend be paid nificant as a part payment of the debt; both him, the payment is applied on the debt, and acts are alike in character, and equally un- the security is available only for the balance equivocal. Merrills v. Swift, 18 Conn. 257, of the debt. If the dividend satisfy the 269, 46 Am. Dec. 315; Smith v. Ryan, 66 debt, the security is discharged. If the seN. Y. 352, 354, 23 Am. Rep. 60; Insurance curity be first applied to the debt, the diviCo. v. Dunscomb, 108 Tenn. 724, 729, 69 S. dend will be allowed only upon the part of W. 345, 58 L. R. A. 694, 91 Am. St. Rep. 769; the debt unsatisfied. Findlay v. Hosmer, 2 Pollock v. Smith, 107 Ky. 509;1 Conway V. Conn. 350, 353; Peck v. Harrison, 23 Conn. ** 154 S. W. 740.

118, 122; Lawrence v. Security Co., 56 Conn,

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