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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." | until the repairs and improvements were

The note dated June 20, 1913, reads, so made and a larger first mortgage secured. far as material here:

The note accords with the agreement in this, “On demand for value received I promise to for admittedly no interest was to be called pay to Cornelius H. Cables or order fourteen for for six months, and the defendant claims thousand dollars with interest after six months that by a proper construction of the lanfrom date, at six per cent. per annum payable guage of the note the principal was not desemiannually."

mandable until after six months. We do not The judgment file sets out the facts upon find it necessary to adopt this construction. which the court founded its judgment (and Assuming that it was by its face demandable 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 the same time implies an agreement to forshows that at the time the assignment was bear making demand if Risley performed his made, August 21, 1913, Risley was engaged part of the agreement and made the repairs. in good faith in carrying out his part of the This was enough to prevent Cables making agreement. It appears, also, among the facts demand so long as Risley was performing, set forth in the judgment file, that the plain and the fact that interest was to be forborne tiff secured a reduction in the purchase price for six months indicates that the parties unto be paid for the assignment because of the derstood that this time would be required interest stipulation contained in the note, for making the repairs. and that this was sufficient to prevent a de- The agreement between Cables and Risley mand either of interest or principal of the was not a part of the note and mortgage note until December 20, 1913, the end of the and had the plaintiff taken his assignment in six months' period. It appears, also, that ignorance of the agreement he would not the plaintiff made demand for the payment have been bound by it. As a bona fide holdof the note on September 22, 1913, and er of these, he would not have been affected brought the action for foreclosure two days by the equities which existed as between later. The court found that the action was Risley and Cables. But he admits in his prematurely brought and rendered judgment reply that he had knowledge of the existfor the defendant.

ence of the agreement, and the judgment file [2] The plaintiff in error has seized upon contains a finding by the court that he knew the court's finding that an allowance was that Risley had made repairs and performed made for interest, and insists that the court's services in carrying it out. He was thus finding that the suit was prematurely brought placed in the position of Cables, of whom rests upon its conclusion that this was enough he purchased the note and mortgage with to preclude a demand before the end of six this knowledge. The latter would be estopmonths from the date of the note. This does ped in the equitable proceeding to foreclose not meet the entire situation, but leaves un- the mortgage to claim the right to enforce answered the fact alleged and established the payment of the note in face of his agreethat the plaintiff was bound by the agreement to forbear demand and collection unment of Cables so far as that postponed the til the improvements were made and an intime for demanding payment of the note. creased first mortgage could be obtained. If it were to be granted that the court was It is claimed in behalf of the plaintiff in wrong in its conclusion in the respect claim-error that it appears from the record that ed, still the record shows, as we think, that the judgment was not rendered until after the suit was prematurely brought.

the date when, according to the reading of It is apparent that the giving of the note the note, interest would be payable, and that, and mortgage and the agreement between the as the proceeding was an equitable one, the defendant in error and Cables on June 20th court should have taken notice of this fact were but a single transaction. It appears and given effect to the terms of the note by clearly on the papers that Cables had sold its judgment. But it does not appear that the defendant in error an equity of redemp- equity would have been done by simply distion in the Grand avenue property, the build- allowing interest to December 20th and renings upon which required repairs and re- dering judgment allowing interest from that modeling to fit them for new purposes which date. It appears that the plaintiff caused would make them more rentable. It required a receiver of the mortgaged property to be time to make these repairs and they would appointed who collected the rents pending be an expense. They would make the prop- suit, thus taking the property from the poserty better mortgage security. The note and session of the defendant in error. agreement were adapted to give Risley the be that he was thus deprived of an opportutime to make the repairs, and Cables agreed nity to complete his contract as well as being to help him raise additional money on the deprived of his rents. Upon the record first mortgage, a part of which he was to re- nothing erroneous appears in the judgment tain and a part was to go to Cables to apply before us. on the second mortgage. There was a clear The writ of error is dismissed, with costs understanding implied in the agreement that to the defendant.

It may

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(88 Conn. 368)


(8 286*) – WILCOX v. DOWNING et al.


Where the issue was whether an assign(Supreme Court of Errors of Connecticut. ment by a husband to his wife of choses in July 13, 1914.)

action was fraudulent, evidence of any other

transaction from which any inference of the 1. APPEAL AND ERROR (8 656*)-APPLICATION intent of the parties could be drawn was admisTO RECTIFY APPEAL-EVIDENCE.

sible. An application to rectify an appeal by a purported transcript of the testimony and by Conveyances, Cent. Dig. $$ 822-825, 827-834,

[Ed. Note.-For other cases, see Fraudulent currecting rulings on the admissibility of evidence will be denied where an answer has been 863-866; Dec. Dig. 286.*] filed denying the correctness of the transcript, 9. FRAUDULENT CONVEYANCES (8 287*) unless further proof than the affidavit of coun


BILITY. [Ed. Note.-For other cases, see Appeal and

Where an action by a wife, as assignee of Error, Cent. Dig. $8 2826-2828; Dec. Dig. & her husband, of choses in action, was defended 656.01

on the ground that the assignment was fraudu

lent as against creditors cf the husband, evi2. APPEAL AND ERROR (8 970*)-RULINGS ONdence of a judgment filed in a suit against the

EVIDENCE-DISCRETION OF ÍRIAL COURT- husband, execution on the judgment, date of the REVIEW.

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. [Ed. Note.-For other cases, see Appeal and [Ed. Note.-For other cases, see Fraudulent Error, Cent. Dig. 88 3849-3851; Dec. Dig. 8Conveyances, Cent. Dig. $ 835; Dec. Dig. 8 970.*]


TRANSFERS TO WIFE-EVIDENCE. Where a book of accounts offered in evi- A creditor who assails a transfer by a dence was not properly kept within the require- husband to his wife of choses in action as ments of the rule, it was within the power of fraudulent may obtain relief by showing a the trial court to reject it.

fraudulent intent on the part of the husband [Ed. Note.- For other cases, see Evidence, or the wife, unless the wife shows that she paid Cent. Dig. 88 1658, 1659; Dec. Dig. 382.*] a valuable consideration, in which case there

must be proof of a fraudulent intent on her 4. EVIDENCE (8 354*)-BOOK OF ACCOUNTS- part or notice by her of the fraudulent intent ADMISSIBILITY.

of the husband. An account book, to be admissible in evi

[Ed. Note.-For other cases, see Fraudulent dence, must appear to have been honestly kept, Conveyances, Cent. Dig. § 493; Dec. Dig. $ and not intentionally altered, and to have been 155.*1 an account of the daily business of the party, and made to establish a charge against another. 11. WITNESSES (8 392*) IMPEACHMENT

PLEADINGS. [Ed. Note.- For other cses, see Evidence,

The pleadings of a witness in another acCent. Dig. 88 1432-1483; Dec. Dig. 8 354.*]

tion may be received to contradict his testi5. EVIDENCE (8 376*)-BOOK OF ACCOUNTS- mony. ADMISSIBILITY.

[Ed. Note.-For other cases, see Witnesses, Mutilation of a portion of a book of ac- Cent. Dig. 88 1249-1251, 1257; Dec. Dig. ģ count, material to the inquiry presented, may 392.*] prevent the admission in evidence of the book, 12. EVIDENCE ($ 208*)— ADMISSIONS-PLEADunless the mutilation is satisfactorily explained.

INGS. (Ed. Note. For other cases, see Evidence, Where the issue was whether an assignCent. Dig. $$ 1628–1646; Dec. Dig. 8 376.*] ment by a husband to his wife of choses in ac6. EVIDENCE (8 376*)—BOOK OF ACCOUNTS- tion was fraudulent as against his creditors,


Where a memorandum book, containing are admissible as declarations against intermemoranda of accounts and other 'matters, not est to be considered in connection with all the in regular chronological order, and indicating allegations of the pleadings. that it was not a book in which were regularly

(Ed. Note. For other cases, see Evidence, kept accounts in the regular course of business, Cent. Dig. 88 713–725; Dec. Dig. 8 208.*] and indicating that many pages had been torn,

Appeal from Court of Common Pleas, New was offered in evidence, and a witness testified that the book was an account book of his own, London County; Charles B. Waller, Judge. and that all the daily transactions were entered Action by Martha R. Wilcox against James in the book, which was the only account book Downing and another for the value of timkept by him, the trial court did not err in rejecting it.

ber cut on shares and the price of a steam [Ed. Note.-For other cases, see Evidence, boiler and other articles. From a judgment Cent. Dig. $$ 1628–1646; Dec. Dig. § 376.*] for defendants, plaintiff appeals. Affirmed. 7. ASSIGNMENTS ($ 134*)-CHOSES IN ACTION William H. Shields and Telley E. Babcock, -ACTIONS BY ASSIGNEE-BURDEN OF PROOF. both of Norwich, for appellant. Edmund W.

An assignee suing on choses in action assigned to him has the burden of proving that Perkins, of Norwich, for appellees. he is the bona fide holder and owner thereof for his own benefit, as alleged in his complaint, though defendant pleads only the gener- tion contained two counts. In the first count

RORABACK, J. The complaint in this acal issue.

[Ed. Note.-For other cases, see Assign- the plaintiff sought to recover upon an exments, Cent. Dig. S$ 229-231; Dec. Dig. & 134.*] | press agreement that Calvin Wilcox, her assignor, should have one-half the value of It is for the presiding judge to say, in the timber cut on his land and sold by the de- first instance, whether entries in an account fendants. The second count was for an al- book are of such a character as to render it leged sale of a steam boiler and its appur-admissible, and his decision will not be intertenances. Both counts contained an allega- fered with, unless clearly wrong. Riley v. tion that the plaintiff, for a valuable consid- Boehm, 167 Mass. 183, 187, 45 N. E. 84. eration, was the actual bona fide owner of As a general rule, when a book of accounts the claims above set forth. These allegations shows that it is not properly kept within were denied in the answer.

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

the requirements of the rule, it is within the [1] There was an application to rectify the power of the court to reject it. Pratt v. appeal made by the plaintiff supported by an White, 132 Mass. 477, 478. To a certain affidavit in conformity with the Rules of the extent the basis of a ruling of the trial judge Supreme Court of Errors, p. 270, § 4. This as to the admission of an account book may application contained two separate para consist of facts gained by his personal examgraphs. The application in paragraph 1 con- ination. Riley v. Boehm, 167 Mass. 183, 186, tained a purported transcript of testimony 187, 45 N. E. 84. which the plaintiff alleged was given upon The trial court may exclude an account the trial of the case. The defendants' coun- book where either its condition or appearance sel filed an answer, under oath, to the appli- or the evidence reasonably creates a suspicion cation to rectify. This answer, as to para- that it is not a true record of what it purgraph 1 of the application, in substance de- ports to be. It must appear to have been nied that the transcript of testimony was honestly kept, and not intentionally erased correct. No depositions were offered in sup- or altered, and to have been an account of port of the application to rectify, and it is the daily business of the party, and made not clear from the printed record whether for the purpose of establishing a charge the plaintiff's claims for correction are true against another. Pratt v. White, 132 Mass. or not.

478; McNulty's Appeal, 135 Pa. 210, 19 Atl. Applications of this kind where an answer 936. has been filed, as in the present case, will be Mutilation of a portion of a book, material denied, unless further proof than the affida- to the inquiry, may prevent its admissibility, vit of counsel is furnished. Norman Print- unless satisfactorily explained. Crane v. ers' Supply Co. v. Ford, 77 Conn. 461, 469, Brewer, 73 N. J. Eq. 558, 68 Atl. 78; Cham59 Atl. 499.

berlayne on Evidence, vol. 4, SS 3051 to 3149, Paragraph 2 of this motion relating to the inclusive. rulings of the court as to the admissibility

We cannot say that the court below was of an account book of the plaintiff is also not justified in the rejection of the book. denied for substantially the same reasons

[7] It is asserted now, and was unsucthat are given as to paragraph 1 of the appli- cessfully asserted in the court below, that, cation.

under the general issue pleaded by the deThe errors assigned relate either to rul- fendants, they could not show that the asings upon evidence or the refusal of the signment was not made in good faith. This court to instruct the jury as requested. reason is insufficient.

[2-6] The rejection of Calvin Wilcox's In her complaint the plaintiff alleges that memorandum book was not erroneous.

In she is the actual and bona fide holder and support of her claim that Calvin Wilcox, the owner of the choses in action upon which she plaintiff's assignor, had sold and delivered bases her claim. The burden of proof was the articles of merchandise to the defend- upon her to sustain this allegation that she ants as alleged in the second count of the was the owner in her own right, for her own plaintiff's complaint, Mr. Wilcox produced a benefit, the genuine, honest owner, and not book containing memoranda relating to the a feigned one. Uncas Paper Co. v. Corbin, sale and delivery of these articles which the 75 Conn. 677, 55 Atl. 165. defendants claimed were never sold to them. [8, 9] The reasons of appeal present in

Calvin Wilcox was called as a witness, various forms the right of the defendants to and testified that it was an account book of inquire into the financial relations and transhis own; that all the daily transactions were actions between Calvin Wilcox and Martha, entered in this book; and that this was the the plaintiff, and also as to the circumstances only account book kept by him.

relating to the motive for this assignment. Upon this question the trial court found It was conceded that Calvin R. Wilcox and that the book in question was a memorandum the plaintiff have for many years been husbook about ten inches long, eight inches wide band and wife. On March 9, 1911, the deand three-eighths of an inch thick, from which fendants recovered a judgment of $500 • many pages had been torn. It contained against Calvin in the court of common pleas memoranda of some accounts and other mat- for New London county. He appealed from ters, but not in regular chronological order. this judgment to the Supreme Court of ErThe book itself did not indicate that it was a rors, which court affirmed the judgment of book in which were regularly kept accounts the court of common pleas June 15, 1911. of the witness, or that it was kept in the reg. On the day that the written opinion of the ular course of his business.

Supreme Court was received by the clerk 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 422. plaintiff in this action.

The appellant has brought to our attention The defendants deny that there is any a number of other alleged errors as to the foundation for the claims so assigned, and admission of evidence which are not of suffialso contend that this assignment was not cient importance to demand extended conmade in good faith, but that it was made for sideration. It is sufficient to say of them the purpose of defrauding them.

that they have been carefully considered, and The latter question was one of the control that none of them point out error prejudicial ling issues for the consideration of the jury. to the plaintiff. Upon questions of good faith or intent, any [11, 12] The defendants offered in evidence other transaction, from which any inference the third defense of the answer and counterrespecting the quo animo may be drawn, are claim in the case of the Downings against admissible, and where fraud is imputed con- Calvin Wilcox, hereinbefore referred to. siderable latitude must be allowed in the This was offered and received by the court admission of evidence. Hoxie v. Insurance as an admission by Calvin Wilcox inconsistCo., 32 Conn. 21, 37, 85 Am. Dec. 240. ent and contradictory to his testimony as a

The scope of the inquiry when fraud is witness for the plaintiff as to the merits under investigation may be a very broad one, of her claim described in the first count of and the inquiry in some instances may ex- her complaint. For these purposes this evitend over a wide field. It should not be dence was admissible. Declarations of this limited, as it must be in an action by a cred-class are admissions, and may be used by itor to recover his debt from his debtor. the opposing party. Connecticut Insane Loos v. Wilkinson, 110 N. Y. 195, 213, 18 N. Hospital v. Brookfield, 69 Conn. 1, 36 Ati. E. 99, 1 L. R. A. 250.

1017. The defendants, against the objection of There is no reason why the allegations of the plaintiff, were permitted to put in evi-a verified pleading, even if not conclusive dence the judgment file in the suit of the against the pleader, should not be treated defendants against Calvin Wilcox; the exe- as admissions against the person or persons cution on the judgment in the case just refer- making them, the same as if made orally, or red to; the date that the defendants com- in any document or proceeding. The admis. menced their action against Calvin Wilcox sions in a pleading must be taken in connecwith the date of the verdict rendered there- tion with all the allegations thereof, and the on; the appeal in this action by Calvin Wil- weight to be given to admissions which are cox to the Supreme Court of Errors; and the not in themselves conclusive against the fact that he procured a record of the case. pleader is to be deterinined by the court or This evidence was competent as against jury the same as other evidence offered on Calvin Wilcox, towards whom it was ma- the trial. Talbot v. Laubheim, 188 N. Y. terial for the defendants to show that he had 421, 424, 81 N. E. 163. made an assignment of these claims for the The jury were properly instructed upon purpose of defrauding them, and, being com- this subject when they were informed that: petent against him, it could not be rejected "There has been considerable evidence received by the court. The testimony was also com- on this trial, gentlemen, which is of value as petent as against the plaintiff in this con- and the defendants. The pleading called the

affecting the credibility of the witness Wilcox nection, as showing under what circum- answer or counterclaim filed by Calvin Wilcox stances she had received an assignment of in the prior case of Downing Bros., the present the claims from her husband, which she defendants, against Calvin Wilcox, was received

simply as a claimed contradictory statement innow alleges and claims were made to her consistent with statements made by him in his in good faith.

testimony in this trial in relation to the same [10] Frauds upon the assignment, either subject matters. Whether there is an inconby the assignor or assignee, do not necessa- been satisfactorily explained, are questions for

sistency in these statements, or whether it has rily avoid the assignment, but they may be you to consider in weighing the testimony of considered in determining whether there this witness. If you should believe that there was any fraud in the assignment, and some

is a contradiction between the testimony given

on this trial and the statements contained in times furnish convincing evidence upon that this pleading referred to, you will give no more point. Loos v. Wilkinson et al., 110 N. y. weight to that statement in the pleading than 195, 210, 18 N. E. 99, 1 L. R. A. 250. A you would if the same inconsistent statement

had been made in conversation. In other words, creditor assailing a transfer of property as because it is found in the pleading in the prior fraudulent may succeed by simply showing case, that of itself gives it no particular weight a fraudulent intent on the part of the ven considered with all the other facts in evidence

as evidence. It is simply one of the facts to be dor or on the part of the vendee; but, if before you, bearing upon the degree of credibilithe vendee shows that he paid a valuable ty you will attach to the testimony of that witconsideration for the property transferred to

ness.' him, there must be proof also of a fraudu- The plaintiff contends that the court erred lent intent on the part of the vendee, or in failing to instruct the jury as to the apthat he had notice of the vendor's fraudu- plication 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 house, accused might, where she did not seize that were laid in evidence by the defendants. upon the incident as a pretext for destroying

deceased, kill him when he attempted to break In this connection the court correctly in- and enter her residence for the avowed purstructed the jury that:

pose of seeing his child, and of taking accused's Whether this was a simple coincidence or force in the defense of a person, no one has

life, for while the law countenances the use of whether it was an arrangement designed by Wilcox and his wife is for you to determine the right to redress his own wrongs. and, in fact, this occurrence, together with all [Ed. Note.- For other cases, see Homicide, the other circumstances in evidence bearing up-Cent. Dig. 88 182, 183; Dec. Dig. $ 123.*] on the situation of Wilcox and his wife, are to be considered by you, in connection with the Appeal from Superior Court, New London other facts in evidence concerning the transfer County; Gardiner Greene, Judge. of these claims, in determining whether the

Lillian M. Perkins was charged with manplaintiff, Martha Wilcox, is the honest, bona fide owner of these claims. If you should de slaughter, and from a judgment of acquittal, termine from the evidence that the plaintiff, the state appeals. No error. Martha Wilcox, is not the real, genuine, honest owner of these claims-that is, owner in her own Hadlai A. Hull, State's Atty., of New Lonright and for her own benefit-but that she is don, for the State. Jeremiah J. Desmond and simply the make-believe owner for the purpose of this present action, and that she is account Charles V. James, both of Norwich, for apable to her husband, Calvin Wilcox, for these pellee. 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 pre- RORABACK, J. The record discloses three pońderance of the evidence that the plaintiff ac- reasons of appeal, two of which relate to the that she is the real, genuine, honest owner of charge of the court upon the question of selfthese claims, and not accountable to any one, defense when a person is attacked in his then your verdict should be for the defendants own household. The third one complains of If you find that the plaintiff has established the action of the court in instructing the proper ownership of these claims, then you would properly consider the merit of the claims them- jury as to the rights of the father and mother selves in accordance with the instructions I have as joint guardians of their minor children. before given you, and return such a verdict as [1] The accused is charged with the crime you believe is warranted by the evidence in ac-of manslaughter in causing the death of cordance with the charge I have given you." We have read the entire charge with care, London county by shooting him with a shot

Thomas V. Coatchaly at Ledyard in New and are unable to agree with the contention

gun. Coatchaly was a Greek, and came to of the plaintiff that:

this country about 1907. He married a “It was not correct in law, was not adapted to the issues in the case and to the claims of daughter of the accused in April, 1912. He the plaintiff, and was not sufficient for the lived with his wife and mother-in-law upon guidance of the jury.

the Perkins homestead until October, 1912. The record discloses that the instructions At this time he quarreled with his wife and given presented the issues in a plain, con- left her. In the month of December he went cise, and accurate manner. The law adapt to Texas, and his wife continued to live with ed to these issues was correctly stated and her mother. Upon February 12, 1913, Mrs. sufficient for the guidance of the jury. Coatchaly gave birth to a child, the offspring There is no error.

of the marriage with the deceased. In April,

1913, Coatchaly came to New London and (88 Conn. 360)

proposed through his attorney that his wife STATE v. PERKINS.

come to New London and live with him. She (Supreme Court of Errors of Connecticut.

did not accept this proposition. During the July 13, 1914.)

month of April he made two or three unsuc1. HOMICIDE ($ 250*) - PROSECUTION -Evi

cessful attempts to see his child. DENCE.

The defendant offered evidence to prove and In a prosecution for manslaughter, evi- claimed to have proven the following: After dence held to warrant acquittal.

the baby was born Coatchaly never asked his [Ed. Note. For other cases, see Homicide, wife to live with him, and that he posted her; Cent. Dig. 88 515-517; Dec. Dig. $ 250.*]

that in a letter to his wife he threatened to 2. HOMICIDE (8 123*) SELF-DEFENSE RIGHT OF.

take the child away from her, and at one An assault on one's residence can be re- time told his wife that he would kill her garded as an assault on the person, within the and her mother if they did not do as he meaning of the law relating to self-defense, 'wanted. At another time she told him that and hence a householder, when an intruder at- she had told her mother he was coming, and tempts to break in, need not retreat, but may, if necessary, kill the intruder.

that her mother did not wish him to go to the Note.-For other cases, see Homicide, house. Coatchaly said, “I don't care the Cent. Dig. $$ 182, 183; Dec. Dig. 123.*] law. If I don't see my baby I'll kill every 3. HOMICIDE (8 123*)-OFFENSES - SELF-DE- one of you." Coatchaly was then mad, exFENSE. Where accused's daughter married deceas

That on the afternoon

cited, and nervous. ed, who deserted her, but returned after the of June 3, 1913, Coatchaly came to the house birth of a child, the custody of which he de-T 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 Indexos

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