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Ignorance of the defendant will afford no relief, if that ignorance resulted from neglect in not taking proper steps to obtain information.

Appeal from decree of common pleas of the county of Centre, in equity.

This is an appeal by The Lebanon Mutual Insurance Company from the order and decree of the court of common pleas of Centre county, dissolving and setting aside a preliminary injunction.

In the early part of May, 1882, John Erb applied to an insurance firm at Phillipsburg, Pa., for a policy of insurance upon a tannery building, engine, boiler and machinery at Port Matilda. A member of this firm visited the property and made a personal examination and survey of the same, after which the agent filled out an application for $1,000 insurance, which John Erb signed. In due time the policy in question was delivered to John Erb.

pany

On the night of August 10, 1882, the premises insured were totally destroyed by fire. On August 13, 1882, notice was sent to the comof the loss. No answer was returned to this notice until the 24th of August, when the company informed Erb that they denied all liability, for the reason that the company had never received the premium. On September 6th, formal proofs of loss were made out and sent by mail to the company, which proofs were duly received. To this and subsequent communications the company returned the same general reply, that they would not recognize the claim.

October 18, 1882, Erb sued the company and recovered a judgment of $1,090, on February 20, 1884.

On March 4, 1884, a writ of error to the supreme court was filed. On February 16, 1885, a judgment of non pros. was entered in said writ of error, because the recognizance did not contain a condition for the return to the court below of the record with the remittitur, as provided by the act of assembly of 8th June, 1881. On 17th February, 1885, a remittitur, with the record from the supreme court, was filed in the court of common pleas of Centre county, and, on the same day, a writ of testatum fieri facias was issued on said judgment, directed to the sheriff of Lebanon county.

On the 16th April, 1885, a bill in equity was filed in the common pleas of Centre county, against John Erb et al., alleging in substance, that the defendant John Erb set fire to and burned the insured property for the purpose of obtaining the insurance, and that this alleged fact was not known to the company until more than a year after the trial of the cause. An injunction was asked to restrain the sheriff from executing the testatum fi. fa., with a prayer to open judgment, and grant a new trial and further relief. On the 16th of April, 1885, a special injunction was granted. On May 8, 1885, the answers of John Erb and Elizabeth J. Erb, denying every material allegation of the bill, were filed, and on the same day the motion to continue the injunction was argued. On May 11, 1885, the preliminary injunction was dissolved and set aside, the common pleas delivering the following opinion:

"As appears from the contents of complainant's bill, John Erb on the 18th day of October, 1882, instituted an action of covenant on a policy of insurance issued by the complainant in this bill to the said John Erb.

Due and legal service was made upon the Lebanon Mutual Insurance Co., and it, by counsel regularly employed for that purpose, entered of record an appearance and plea in said suit. The suit thus begun came on for trial on the 7th of February, 1884, before KREBS, P. J., of the fortysixth district, in special court, and was tried before a jury, and a verdict rendered in favor of the plaintiff, John Erb, in the sum of $1,090, and subsequently a writ of error taken to the supreme court on the 16th of February, 1885, was non prossed and the record remitted, and testatum fieri facias issued to Lebanon county, Pa., to Frank B. Boeshore, high sheriff, commanding him to execute the same. The grounds of this application for an injunction are that the defendant John Erb set fire, to and burnt the building insured with intent to defraud the insurance company, and that at the time of the trial they had no knowledge of this alleged fact; and, secondly, that he testified falsely as to the ownership of the property insured at the time of the trial, and that by reason of these two alleged acts on his part he committed a fraud upon the complainant, and that it is against conscience to permit the plaintiff in that judgment to collect the same, for these reasons. There is no hard, unbending rule which limits the equitable power of the court to interfere with and stay by injunction the collection of a judgment. But whether or not the court shall do so, depends upon the clear and undoubted proof of facts, which would render the collection of a judg ment unconscionable and inequitable, and the additional reason that the defendant in the judgment has had no opportunity to show the same, or in other words, has not had "a day in court." Where a defendant in an execution has had a trial, and has failed to make a defense which he might have made under the pleadings in the cause, he cannot after judgment duly entered seek relief by an injunction staying the collection thereof, unless it clearly appears that he was prevented by the action of the plaintiff in the judgment from making the defense, which would have produced a different result if it had been made at the trial, or at least ought to have produced a different result. The ignorance of the defendant will afford no relief, if that ignorance resulted from neglect in not taking proper steps to obtain information. The true rule, we believe, is that a judgment will not be restrained by injunction, where steps have been omitted, which ought to have been taken, or where ignorance is mixed up with negligence. In support of this rule we refer to Cheney v. Wright, 7 Phila. 431; Hetzell v. Bentz, 8 Phila. 261; Wistar V. Me Manes, 54 Penn. St. 318. A judgment will not be enjoined, however plainly it may appear that the complainant had a good legal

of counsel,

or the error of the judge, or from failure on part of the defendant to collect the evidence in due season and present it in a way to be available. Duckworth v. Duckworth, 35 Ala. 70; Becker v. Elkins, 1 Johns. 466; Marine Ins. Co. v. Hodgson, 7 Cranch, 332; Windwart v. Allen, 13 Md. 196; Katz v. Moore, id. 566; Hendrickson v. Hinckley, 17 How. 445.

Tried by these well-established rules, how does the complainant's application stand. The separate answers filed by the defendants, flatly contradict all the material averments of the complainant's bill and the

evidence by the ex parte affidavits offered in support of the complainant's bill can at most raise a suspicion that the plaintiff in the judgment set fire to the building to defraud the complainant company. We could not consider the question of the ownership of the property, because that was fully tried by and before the jury, and it is "res adju dicata," and if we were to establish a precedent by interfering with and enjoining the collection of this judgment upon grounds of suspicion only, we would open the very floodgates of perjury.

We are unable to find sufficient evidence in the affidavits submitted which would justify us in granting a new trial were there an application of that nature upon motion made after verdict and before judg ment entered, and if we would not be justified in granting a new trial we surely are not justified in continuing the preliminary injunction.” Adam Hoy, for appellants. Hastings & Reeder and John H. Orvis, for appellees.

PER CURIAM. We see nothing in this record to convict the court of error in dissolving the preliminary injunction, nor in refusing to open the judgment.

Decree affirmed, and appeal dismissed at the cost of the appellants.

SUPREME JUDICIAL COURT OF MAINE.

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ACCORD AND SATISFACTION

VARNEY v. CONERY.

November 24, 1885.

NOTE INDORSED BY THIRD PARTY.

If a debtor gives his creditor a note indorsed by a third person, for a less sum than the debt, but in full satisfaction of the debt, and it is received as such, the transaction constitutes a good accord and satisfaction,

Assumpsit on an account annexed for $65.50.

The defense was that the claim had been settled; and the defendant and his father testified, in substance, that the plaintiff's traveling salesman called upon him to pay the plaintiff's bill for merchandise amounting to about $265, and on being informed by the defendant that he could not pay his debts in full, after some talk, the salesman agreed to discharge the claim if the defendant would give two notes of $100 each indorsed by the defendant's father, which was done. The plaintiffs and their salesman denied this, and claimed that the notes were given and received on account. The verdict was for the defendant, and the plaintiffs moved to set it aside as against law and evidence. E. S. Ridlon, for plaintiff. H. A. Tripp, for defendant.

VIRGIN, J. If a debtor gives, and the creditor receives, in full satisfaction of the debt, a note indorsed by a third person for a less sum than the amount of the debt, it is a good accord and satisfaction to bar a subsequent suit by the creditor to recover the balance of the debt. Boyd v. Hitchcock, 20 Johns. 76; S. C., 11 Am. Dec. 247; 6 N. Y. Com. L. R. (Lawy. ed.) 939, note; Dolsen v. Arnold, 10 How. Pr. 529; Brooks v. White, 2 Metc. 283; S. C., 37 Am. Dec. and note, 98. And a subsequent promise to pay the balance is not binding. Phelps V. Dennett, 57 Me. 491. So, that even if the case does not come within the provisions of Rev. Stat., chap. 82, § 45, the verdict is not for that reason against law.

Under proper instructions, the jury found that the plaintiff's runner through whom all the dealings between the parties had been negotiated had the authority of the plaintiffs to compromise the claim; and we think the runner's own testimony is a sufficient warrant for

such finding.

That the notes were given and accepted in full satisfaction of the whole debt, the testimony of the defendant, and of his father who indorsed them, is express, although denied by the plaintiff's agent. Motion overruled.

PETERS, Ch. J., WALTON, LIBBEY, FOSTER and HASKELL, JJ., con

curred.

VOL. III.-4

INHABITANTS OF CAMDEN v. CAMDEN VILLAGE CORPORATION.

December 1, 1885.

ΤΑΧΑΤΙΟΝ MUNICIPAL PROPERTY PART OF BUILDING RENTED.

A building erected by a village corporation, in pursuance of the authority conferred upon it by its charter, containing rooms for the public meetings of the corporation, police court, assessor's office, lock-up, etc., some of which, when not in use for the purposes of the corporation, were let for hire, is exempt from taxation by the town in which it is located.

Action to recover a tax. The opinion states the facts.

A. P. Gould, for plaintiffs. T. R. Simonton, for defendant.

FOSTER, J. The defendant corporation, by special authority from the legislature, together with other powers and privileges particularly enumerated in the act of incorporation, was authorized to build a village hall at a cost of not more than $8,000. Thereafter a lot was purchased and a building erected thereon by the defendants, known as "Megunticook Hall." This building is sixty feet long, fifty feet wide, and two stories high. The upper portion is finished into a hall, with galleries, platforms, and two small ante rooms. The lower story contains a hall somewhat smaller than the one above, a lock-up, assessors' room, cook and furnace room. The upper hall is used for the annual and other meetings of the corporation, the lower one for a police court room; and when not in use by the corporation, both halls are let, as occasion requires, for lectures and other public entertainments, with an income from $300 to $500 a year, which is appropriated in defraying the annual expenses of the corporation.

The plaintiff town in which the defendant corporation is situated, claiming that the property is subject to taxation under the general statutes, like other real estate, has assessed a tax thereon, and this action is brought to recover the same.

The plaintiff's claim is that this corporation is limited in its extent of territory, is partly private and partly public, in which the inhabitants of much the largest portion of the town have no pecuniary interest, and that this building, being adapted to and used in part for other than corporate purposes, is owned by the defendants in their social or commercial capacity, and for pecuniary profit; and is therefore neither expressly nor impliedly exempt from taxation.

As against this proposition the defense set up is, that the corporation is of a public nature, and that the property upon which this tax is sought to be imposed is held by the defendants for public uses, necessarily incident to the objects of the corporation, and as such exempt from taxation.

For a correct determination of this question, it becomes necessary to consider the nature and character of such corporations, the objects they are intended to accomplish, and their connection with the government of the State. It is laid down by the authorities that such corporations are public; and while they " are allowed to assume to themselves some of the duties of the State in a partial or detailed form, but having neither property nor power for personal aggrandizement, they can be

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