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gage, due July 1, 1913, and to collect the rents the second mortgage should not be demanded due at that time, to all of this we both agree.'

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The note dated June 20, 1913, reads, so far as material here:

"On demand for value received I promise to pay to Cornelius H. Cables or order fourteen thousand dollars with interest after six months from date, at six per cent. per annum payable semiannually."

until the repairs and improvements were made and a larger first mortgage secured. The note accords with the agreement in this, for admittedly no interest was to be called for for six months, and the defendant claims that by a proper construction of the language of the note the principal was not de

mandable until after six months. We do not find it necessary to adopt this construction. Assuming that it was by its face demandable

the same time implies an agreement to forbear making demand if Risley performed his part of the agreement and made the repairs. This was enough to prevent Cables making demand so long as Risley was performing, and the fact that interest was to be forborne for six months indicates that the parties understood that this time would be required for making the repairs.

The judgment file sets out the facts upon which the court founded its judgment (and many other facts more appropriate to a find-at an earlier period, the agreement signed at ing for appeal than a judgment file), and it shows that at the time the assignment was made, August 21, 1913, Risley was engaged in good faith in carrying out his part of the agreement. It appears, also, among the facts set forth in the judgment file, that the plaintiff secured a reduction in the purchase price to be paid for the assignment because of the interest stipulation contained in the note, and that this was sufficient to prevent a demand either of interest or principal of the note until December 20, 1913, the end of the six months' period. It appears, also, that the plaintiff made demand for the payment of the note on September 22, 1913, and brought the action for foreclosure two days later. The court found that the action was prematurely brought and rendered judgment for the defendant.

[2] The plaintiff in error has seized upon the court's finding that an allowance was made for interest, and insists that the court's finding that the suit was prematurely brought rests upon its conclusion that this was enough to preclude a demand before the end of six months from the date of the note. This does not meet the entire situation, but leaves unanswered the fact alleged and established that the plaintiff was bound by the agreement of Cables so far as that postponed the time for demanding payment of the note. If it were to be granted that the court was wrong in its conclusion in the respect claimed, still the record shows, as we think, that the suit was prematurely brought.

It is apparent that the giving of the note and mortgage and the agreement between the defendant in error and Cables on June 20th were but a single transaction. It appears clearly on the papers that Cables had sold the defendant in error an equity of redemption in the Grand avenue property, the buildings upon which required repairs and remodeling to fit them for new purposes which would make them more rentable. It required time to make these repairs and they would be an expense. They would make the property better mortgage security. The note and agreement were adapted to give Risley the time to make the repairs, and Cables agreed to help him raise additional money on the first mortgage, a part of which he was to retain and a part was to go to Cables to apply on the second mortgage. There was a clear understanding implied in the agreement that

The agreement between Cables and Risley was not a part of the note and mortgage and had the plaintiff taken his assignment in ignorance of the agreement he would not have been bound by it. As a bona fide holder of these, he would not have been affected by the equities which existed as between Risley and Cables. But he admits in his reply that he had knowledge of the existence of the agreement, and the judgment file contains a finding by the court that he knew that Risley had made repairs and performed services in carrying it out. He was thus placed in the position of Cables, of whom he purchased the note and mortgage with this knowledge. The latter would be estopped in the equitable proceeding to foreclose the mortgage to claim the right to enforce the payment of the note in face of his agreement to forbear demand and collection until the improvements were made and an increased first mortgage could be obtained.

It is claimed in behalf of the plaintiff in error that it appears from the record that the judgment was not rendered until after the date when, according to the reading of the note, interest would be payable, and that, as the proceeding was an equitable one, the court should have taken notice of this fact and given effect to the terms of the note by its judgment. But it does not appear that equity would have been done by simply disallowing interest to December 20th and rendering judgment allowing interest from that date. It appears that the plaintiff caused a receiver of the mortgaged property to be appointed who collected the rents pending suit, thus taking the property from the possession of the defendant in error. It may be that he was thus deprived of an opportunity to complete his contract as well as being deprived of his rents. Upon the record nothing erroneous appears in the judgment before us.

The writ of error is dismissed, with costs to the defendant.

(88 Conn. 368)

WILCOX v. DOWNING et al. (Supreme Court of Errors of Connecticut. July 13, 1914.)

1. APPEAL AND ERROR (§ 656*)-APPLICATION TO RECTIFY APPEAL EVIDENCE.

An application to rectify an appeal by a purported transcript of the testimony and by correcting rulings on the admissibility of evidence will be denied where an answer has been filed denying the correctness of the transcript, unless further proof than the affidavit of counsel is furnished.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2826-2828; Dec. Dig. § 656.*]

2. APPEAL AND ERROR (§ 970*)-RULINGS ON EVIDENCE-DISCRETION OF TRIAL COURT

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9. FRAUDULENT CONVEYANCES (§ 287*) TRANSFERS TO WIFE-EVIDENCE-ADMISSIBILITY.

Where an action by a wife, as assignee of her husband, of choses in action, was defended on the ground that the assignment was fraudulent as against creditors of the husband, evidence of a judgment filed in a suit against the husband, execution on the judgment, date of the commencement of the action against the husThe determination of trial judge whether band, date of the verdict therein, appeal by the entries in an account book are of such a char- husband, and affirmance was competent as acter as to render the same admissible in evi-against the husband to show fraud and against dence will not be interfered with, unless clear- the wife to show the circumstances under which ly wrong. she received the assignment.

REVIEW.

[Ed. Note.-For other cases, sée Appeal and Error, Cent. Dig. 88 3849-3851; Dec. Dig. 970.*]

[Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. § 835; Dec. Dig. 8 287.*]

3. EVIDENCE (§ 382*)-BOOK OF ACCOUNTS- 10. FRAUDULENT CONVEYANCES (§ 155*) ADMISSIBILITY.

Where a book of accounts offered in evidence was not properly kept within the requirements of the rule, it was within the power of the trial court to reject it.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1658, 1659; Dec. Dig. § 382.*] 4. EVIDENCE (§ 354*)-BOOK OF ACCOUNTSADMISSIBILITY.

TRANSFERS TO WIFE-EVIDENCE.

A creditor who assails a transfer by a husband to his wife of choses in action as fraudulent may obtain relief by showing a fraudulent intent on the part of the husband or the wife, unless the wife shows that she paid a valuable consideration, in which case there must be proof of a fraudulent intent on her part or notice by her of the fraudulent intent of the husband.

[Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. § 493; Dec. Dig. § 155.*]

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IMPEACHMENT

An account book, to be admissible in evidence, must appear to have been honestly kept, and not intentionally altered, and to have been an account of the daily business of the party, and made to establish a charge against another. 11. WITNESSES (8 392*) PLEADINGS. [Ed. Note. For other cses, see Evidence, The pleadings of a witness in another acCent. Dig. §§ 1432-1483; Dec. Dig. § 354.*] tion may be received to contradict his testi5. EVIDENCE (§ 376*)-BooK OF ACCOUNTS-mony. ADMISSIBILITY.

Mutilation of a portion of a book of account, material to the inquiry presented, may prevent the admission in evidence of the book, unless the mutilation is satisfactorily explained. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1628-1646; Dec. Dig. § 376.*] 6. EVIDENCE (§ 376*)-BooK OF ACCOUNTS

ADMISSIBILITY.

Where a memorandum book, containing memoranda of accounts and other matters, not in regular chronological order, and indicating that it was not a book in which were regularly kept accounts in the regular course of business, and indicating that many pages had been torn, was offered in evidence, and a witness testified that the book was an account book of his own, and that all the daily transactions were entered in the book, which was the only account book kept by him, the trial court did not err in rejecting it.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1628-1646; Dec. Dig. § 376.*] 7. ASSIGNMENTS (§ 134*)-CHOSES IN ACTION -ACTIONS BY ASSIGNEE-BURDEN OF PROOF. An assignee suing on choses in action assigned to him has the burden of proving that he is the bona fide holder and owner thereof for his own benefit, as alleged in his complaint, though defendant pleads only the gener

al issue.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1249-1251, 1257; Dec. Dig. § 392.*]

12. EVIDENCE (§ 208*)- ADMISSIONS-PLEAD

INGS.

Where the issue was whether an assignment by a husband to his wife of choses in acpleadings in another case against the husband tion was fraudulent as against his creditors, are admissible as declarations against interest to be considered in connection with all the allegations of the pleadings.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 713-725; Dec. Dig. § 208.*]

Appeal from Court of Common Pleas, New London County; Charles B. Waller, Judge.

Action by Martha R. Wilcox against James Downing and another for the value of timber cut on shares and the price of a steam boiler and other articles. From a judgment for defendants, plaintiff appeals. Affirmed.

William H. Shields and Telley E. Babcock, both of Norwich, for appellant. Edmund W. Perkins, of Norwich, for appellees.

tion contained two counts. In the first count RORABACK, J. The complaint in this ac[Ed. Note. For other cases, see Assign- the plaintiff sought to recover upon an exments, Cent. Dig. §§ 229-231; Dec. Dig. § 134.*] press agreement that Calvin Wilcox, her asFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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signor, should have one-half the value of I timber cut on his land and sold by the defendants. The second count was for an alleged sale of a steam boiler and its appurtenances. Both counts contained an allegation that the plaintiff, for a valuable consideration, was the actual bona fide owner of the claims above set forth. These allegations were denied in the answer.

[1] There was an application to rectify the appeal made by the plaintiff supported by an affidavit in conformity with the Rules of the Supreme Court of Errors, p. 270, § 4. This application contained two separate paragraphs. The application in paragraph 1 contained a purported transcript of testimony which the plaintiff alleged was given upon the trial of the case. The defendants' counsel filed an answer, under oath, to the application to rectify. This answer, as to paragraph 1 of the application, in substance denied that the transcript of testimony was correct. No depositions were offered in support of the application to rectify, and it is not clear from the printed record whether the plaintiff's claims for correction are true or not.

Applications of this kind where an answer has been filed, as in the present case, will be denied, unless further proof than the affidavit of counsel is furnished. Norman Printers' Supply Co. v. Ford, 77 Conn. 461, 469, 59 Atl. 499.

Paragraph 2 of this motion relating to the rulings of the court as to the admissibility of an account book of the plaintiff is also denied for substantially the same reasons that are given as to paragraph 1 of the application.

The errors assigned relate either to rulings upon evidence or the refusal of the court to instruct the jury as requested.

[2-6] The rejection of Calvin Wilcox's memorandum book was not erroneous. In support of her claim that Calvin Wilcox, the plaintiff's assignor, had sold and delivered the articles of merchandise to the defendants as alleged in the second count of the plaintiff's complaint, Mr. Wilcox produced a book containing memoranda relating to the sale and delivery of these articles which the defendants claimed were never sold to them. Calvin Wilcox was called as a witness, and testified that it was an account book of his own; that all the daily transactions were entered in this book; and that this was the only account book kept by him.

Upon this question the trial court found that the book in question was a memorandum book about ten inches long, eight inches wide and three-eighths of an inch thick, from which many pages had been torn. It contained memoranda of some accounts and other matters, but not in regular chronological order. The book itself did not indicate that it was a book in which were regularly kept accounts of the witness, or that it was kept in the regular course of his business.

It is for the presiding judge to say, in the first instance, whether entries in an account book are of such a character as to render it admissible, and his decision will not be interfered with, unless clearly wrong. Riley v. Boehm, 167 Mass. 183, 187, 45 N. E. 84.

As a general rule, when a book of accounts shows that it is not properly kept within the requirements of the rule, it is within the power of the court to reject it. Pratt v. White, 132 Mass. 477, 478. To a certain extent the basis of a ruling of the trial judge as to the admission of an account book may consist of facts gained by his personal examination. Riley v. Boehm, 167 Mass. 183, 186, 187, 45 N. E. 84.

The trial court may exclude an account book where either its condition or appearance or the evidence reasonably creates a suspicion that it is not a true record of what it purports to be. It must appear to have been honestly kept, and not intentionally erased or altered, and to have been an account of the daily business of the party, and made for the purpose of establishing a charge against another. Pratt v. White, 132 Mass. 478; McNulty's Appeal, 135 Pa. 210, 19 Atl. 936.

Mutilation of a portion of a book, material to the inquiry, may prevent its admissibility, unless satisfactorily explained. Crane v. Brewer, 73 N. J. Eq. 558, 68 Atl. 78; Chamberlayne on Evidence, vol. 4, §§ 3051 to 3149, inclusive.

We cannot say that the court below was not justified in the rejection of the book.

[7] It is asserted now, and was unsuccessfully asserted in the court below, that, under the general issue pleaded by the defendants, they could not show that the assignment was not made in good faith. This reason is insufficient.

In her complaint the plaintiff alleges that she is the actual and bona fide holder and owner of the choses in action upon which she bases her claim. The burden of proof was upon her to sustain this allegation that she was the owner in her own right, for her own benefit, the genuine, honest owner, and not a feigned one. Uncas Paper Co. v. Corbin, 75 Conn. 677, 55 Atl. 165.

[8,9] The reasons of appeal present in various forms the right of the defendants to inquire into the financial relations and transactions between Calvin Wilcox and Martha, the plaintiff, and also as to the circumstances relating to the motive for this assignment.

It was conceded that Calvin R. Wilcox and the plaintiff have for many years been husband and wife. On March 9, 1911, the defendants recovered a judgment of $500 against Calvin in the court of common pleas for New London county. He appealed from this judgment to the Supreme Court of Errors, which court affirmed the judgment of the court of common pleas June 15, 1911. On the day that the written opinion of the Supreme Court was received by the clerk

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of the court of common pleas Calvin assign- | lent intent. Starin v. Kelly, 88 N. Y. 419, ed the claims in controversy to his wife, the plaintiff in this action.

The defendants deny that there is any foundation for the claims so assigned, and also contend that this assignment was not made in good faith, but that it was made for the purpose of defrauding them.

The latter question was one of the controlling issues for the consideration of the jury. Upon questions of good faith or intent, any other transaction, from which any inference respecting the quo animo may be drawn, are admissible, and where fraud is imputed considerable latitude must be allowed in the admission of evidence. Hoxie v. Insurance Co., 32 Conn. 21, 37, 85 Am. Dec. 240.

The scope of the inquiry when fraud is under investigation may be a very broad one, and the inquiry in some instances may extend over a wide field. It should not be limited, as it must be in an action by a creditor to recover his debt from his debtor. Loos v. Wilkinson, 110 N. Y. 195, 213, 18 N. E. 99, 1 L. R. A. 250.

The defendants, against the objection of the plaintiff, were permitted to put in evidence the judgment file in the suit of the defendants against Calvin Wilcox; the execution on the judgment in the case just referred to; the date that the defendants commenced their action against Calvin Wilcox with the date of the verdict rendered thereon; the appeal in this action by Calvin Wilcox to the Supreme Court of Errors; and the fact that he procured a record of the case. This evidence was competent as against Calvin Wilcox, towards whom it was material for the defendants to show that he had made an assignment of these claims for the purpose of defrauding them, and, being competent against him, it could not be rejected by the court. The testimony was also competent as against the plaintiff in this connection, as showing under what circumstances she had received an assignment of the claims from her husband, which she now alleges and claims were made to her in good faith.

[10] Frauds upon the assignment, either by the assignor or assignee, do not necessarily avoid the assignment, but they may be considered in determining whether there was any fraud in the assignment, and sometimes furnish convincing evidence upon that point. Loos v. Wilkinson et al., 110 N. Y. 195, 210, 18 N. E. 99, 1 L. R. A. 250. A creditor assailing a transfer of property as fraudulent may succeed by simply showing a fraudulent intent on the part of the vendor or on the part of the vendee; but, if the vendee shows that he paid a valuable consideration for the property transferred to him, there must be proof also of a fraudulent intent on the part of the vendee, or that he had notice of the vendor's fraudu

422.

The appellant has brought to our attention a number of other alleged errors as to the admission of evidence which are not of sufficient importance to demand extended consideration. It is sufficient to say of them that they have been carefully considered, and that none of them point out error prejudicial to the plaintiff.

[11, 12] The defendants offered in evidence the third defense of the answer and counterclaim in the case of the Downings against Calvin Wilcox, herein before referred to. This was offered and received by the court as an admission by Calvin Wilcox inconsistent and contradictory to his testimony as a witness for the plaintiff as to the merits of her claim described in the first count of her complaint. For these purposes this evidence was admissible. Declarations of this class are admissions, and may be used by the opposing party. Connecticut Insane Hospital v. Brookfield, 69 Conn. 1, 36 Atl. 1017.

There is no reason why the allegations of a verified pleading, even if not conclusive against the pleader, should not be treated as admissions against the person or persons making them, the same as if made orally, or in any document or proceeding. The admis sions in a pleading must be taken in connection with all the allegations thereof, and the weight to be given to admissions which are not in themselves conclusive against the pleader is to be determined by the court or jury the same as other evidence offered on the trial. Talbot v. Laubheim, 188 N. Y. 421, 424, 81 N. E. 163.

The jury were properly instructed upon this subject when they were informed that:

"There has been considerable evidence received on this trial, gentlemen, which is of value as and the defendants. The pleading called the affecting the credibility of the witness Wilcox answer or counterclaim filed by Calvin Wilcox in the prior case of Downing Bros., the present defendants, against Calvin Wilcox, was received simply as a claimed contradictory statement inconsistent with statements made by him in his testimony in this trial in relation to the same subject-matters. Whether there is an inconsistency in these statements, or whether it has been satisfactorily explained, are questions for you to consider in weighing the testimony of this witness. If you should believe that there is a contradiction between the testimony given on this trial and the statements contained in this pleading referred to, you will give no more weight to that statement in the pleading than had been made in conversation. In other words, you would if the same inconsistent statement because it is found in the pleading in the prior case, that of itself gives it no particular weight considered with all the other facts in evidence as evidence. It is simply one of the facts to be before you, bearing upon the degree of credibility you will attach to the testimony of that witness."

The plaintiff contends that the court erred in failing to instruct the jury as to the application that they were to make of the

judgment file and execution in the former | manded, and the child was left in accused's suit of Downing Bros. against Calvin Wilcox that were laid in evidence by the defendants. In this connection the court correctly instructed the jury that:

"Whether this was a simple coincidence or whether it was an arrangement designed by Wilcox and his wife is for you to determine, and, in fact, this occurrence, together with all. the other circumstances in evidence bearing upon the situation of Wilcox and his wife, are to be considered by you, in connection with the other facts in evidence concerning the transfer of these claims, in determining whether the plaintiff, Martha Wilcox, is the honest, bona fide owner of these claims. If you should determine from the evidence that the plaintiff, Martha Wilcox, is not the real, genuine, honest owner of these claims-that is, owner in her own right and for her own benefit-but that she is simply the make-believe owner for the purpose of this present action, and that she is accountable to her husband, Calvin Wilcox, for these claims, then she is not entitled to recover in this action, irrespective of the merits of the two claims. Unless you are satisfied by a fair preponderance of the evidence that the plaintiff acquired these claims for a real consideration, that she is the real, genuine, honest owner of these claims, and not accountable to any one, then your verdict should be for the defendants. If you find that the plaintiff has established proper ownership of these claims, then you would properly consider the merit of the claims themselves in accordance with the instructions I have before given you, and return such a verdict as you believe is warranted by the evidence in accordance with the charge I have given you."

We have read the entire charge with care, and are unable to agree with the contention of the plaintiff that:

"It was not correct in law, was not adapted to the issues in the case and to the claims of the plaintiff, and was not sufficient for the guidance of the jury."

The record discloses that the instructions given presented the issues in a plain, concise, and accurate manner. The law adapted to these issues was correctly stated and sufficient for the guidance of the jury. There is no error.

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house, accused might, where she did not seize upon the incident as a pretext for destroying deceased, kill him when he attempted to break and enter her residence for the avowed purpose of seeing his child, and of taking accused's force in the defense of a person, no one has life, for while the law countenances the use of the right to redress his own wrongs.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 182, 183; Dec. Dig. § 123.*]

Appeal from Superior Court, New London County; Gardiner Greene, Judge.

Lillian M. Perkins was charged with manslaughter, and from a judgment of acquittal, the state appeals. No error.

Hadlai A. Hull, State's Atty., of New London, for the State. Jeremiah J. Desmond and Charles V. James, both of Norwich, for appellee.

RORABACK, J. The record discloses three reasons of appeal, two of which relate to the charge of the court upon the question of selfdefense when a person is attacked in his own household. The third one complains of the action of the court in instructing the jury as to the rights of the father and mother as joint guardians of their minor children.

[1] The accused is charged with the crime of manslaughter in causing the death of Thomas V. Coatchaly at Ledyard in New London county by shooting him with a shotgun. Coatchaly was a Greek, and came to this country about 1907. He married a daughter of the accused in April, 1912. He lived with his wife and mother-in-law upon the Perkins homestead until October, 1912. At this time he quarreled with his wife and left her. In the month of December he went to Texas, and his wife continued to live with her mother. Upon February 12, 1913, Mrs. Coatchaly gave birth to a child, the offspring of the marriage with the deceased. In April, 1913, Coatchaly came to New London and proposed through his attorney that his wife come to New London and live with him. She did not accept this proposition. During the month of April he made two or three unsuccessful attempts to see his child.

The defendant offered evidence to prove and claimed to have proven the following: After the baby was born Coatchaly never asked his wife to live with him, and that he posted her; that in a letter to his wife he threatened to take the child away from her, and at one time told his wife that he would kill her and her mother if they did not do as he wanted. At another time she told him that she had told her mother he was coming, and that her mother did not wish him to go to the house. Coatchaly said, "I don't care for the law. If I don't see my baby I'll kill every one of you." Coatchaly was then mad, excited, and nervous. That on the afternoon of June 3, 1913, Coatchaly came to the house of the accused and demanded admission,

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

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