PETERS, C. J. This case is before us on a motion to set aside the verdict of a jury upon certain issues submitted to them, and which have been found adversely to the appellant, and in substance deny him a discharge in insolvency. It was brought up by appeal from the judge of insolvency, Cumberland county, refusing the appellant a discharge, under the provisions of the insolvent act, for the reasons set forth in the decree. The proceedings in the insolvent court were begun by creditors' petition filed May 17, 1884. The issues found by the jury, in this court, against the appellant, are shown in questions 7, 9, 10, as follows: "(7) Did said insolvent, being a merchant and trader at said Portland from the first day of January, A. D. 1883, to the sixteenth day of May, A. D. 1884, fail during said period, or any part thereof, to keep a cash-book or other books of account? Answer. Yes. (9) Did said insolvent knowingly and falsely swear in his said examination, in a material matter, that he had no private business of his own from the time of the failure of said J. Winslow Jones Co., Limited, namely, on or about the first day of January A. D. 1882, to the time of the commencement of these proceedIngs, namely, on the sixteenth day of May, A. D. 1884? A. Yes. (10) Did said insolvent falsely and knowingly swear, in a material matter, in the course of said examination, that during the years 1882 and 1883, and that part of the year 1884 which was prior to the commencement of said proceedings in insolvency, he had no letter-books, in which he kept letter-press copies of letters written by him, or copies of such letters. A. Yes."

The case is not affected by chapter 326 of the act approved March 4, 1885, amending section 46 of chapter 70 of the Revised Statutes, by which a merchant or trader is required to keep a cash-book, or other proper books of account. It is provided by the second section of the amendatory act that it shall not apply to pending proceedings.

These issues, passed upon by the jury, relate to the nature and extent of the insolvent's business transactions, and were material matters of investigation by his assignee and creditors for the proper administration of the estate. The failure by a merchant or trader to keep a cash-book, or other proper books of account, and false swearing, are made by the statute (section 46, c. 70, Rev. St.) causes for refusing an insolvent's discharge. The right of an insolvent debtor to a discharge from his debts depends upon whether or not he "has in all things conformed to his duty under this chapter," (chapter 70, Rev. St.)

We have carefully examined and considered the testimony adduced at the trial before the jury on the issues submitted to them, and are of the opinion that it is not a case where the evidence will permit of our interference. Арpellant on his examination, and at the jury trial, testified that he had carried on no private business, and admitted that he kept no cash-book, -no books whatever, and this is sufficient ground for refusing him a discharge. Appellant's counsel claims in his argument that he was not then doing business on his own account, and therefore, not being a merchant or trader, that he is not amenable to the statute interdiction. To this it is sufficient to say that the finding is otherwise.

Nor do we think the case one of an accidental failure to make proper entries, which courts have not considered fatal to a discharge. Appellant's counsel contends that there must be a finding that the commissions and omissions charged against the insolvent were perpetrated by him "for the purpose of defrauding creditors," before he can be convicted of any wrong which will prevent his discharge under section 46, c. 70, Rev. St. That phrase, in that section, applies to matters different from these. If an insolvent swears falsely in material matters, the presumption is conclusive that the intent is to defraud. Nor does it make any difference what the motive may be in not keeping books. Books must be kept; the requirement is absolute. A failure to keep a cash-book or other proper books of account at any time "since March 23, 1878," is within the statute. "Since" means any time after the passage of the act, though the neglect may not cover the whole period. In re Rosenfield, 1 N. B. R. 575.

Motion overruled.

WALTON, VIRGIN, LIBBEY, and EMERY, JJ., concurred.

(79 Me. 168)

LIBBY D. ROBINSON.1

(Supreme Judicial Court of Maine. February 24, 1887.)

ASSUMPSIT-MONEY HAD AND RECEIVED IMPLIED CONTRACT.

The plaintiff, a deputy-sheriff, had an account against a firm consisting of the defendant and another. When sued, the account was barred by the statute of limitations. At some date before the bar could operate against the account, the partners settled their partnership matters; and, on defendant's representation that he had paid plaintiff's claim when he had not, he was allowed the amount of it in such settlement. Held, that the plaintiff cannot maintain an action for money had and received upon the ground that the settlement placed money in the defendant's hands for plaintiff's benefit, or that it had the legal effect to do so.

On exceptions by defendant from superior court, Kennebec county.
The opinion states the facts.

H. M. Heath, for plaintiff. D. C. Robinson, for defendant.

PETERS, C. J. The defendant and another, law partners, were indebted to the plaintiff, a deputy-sheriff, for official services performed by him for their firm. The bill became barred by the statute of limitations. The bar is attempted to be avoided by the plaintiff upon the following finding of facts: At some time during six years prior to the date of the writ in this case, the defendant and his partner had a settlement of their partnership accounts, when the defendant represented to his partner that he had paid the plaintiff's bill, and they made a settlement on the basis of such payment. The ruling of the judge was that that act was equivalent to placing in the defendant's hands at that time an amount of money for the plaintiff, which he can recover in this action of money had and received. We are unable to concur in the ruling. It would be pushing the principle of implied promise too far to give it such application. The cases cited fall short of supporting the conclusion contended for. They are instances where money was paid by one person to another to be paid over to a third party. In the present case there was no assertion by the defendant that he would in the future pay the plaintiff, nor was any money placed in his hands for such purpose. He did not assume a new debt; he asserted that he had paid an old one when he had not. He merely paid less to or received more from his partner by reason of the misrepresentation, and he is still liable to his partner on account of it. He cannot be liable to pay the reserved sum to his partner and to the plaintiff also. Nor would the firm be released from the plaintiff's claim were the limitation question eliminated. from the facts. The case against the defendant cannot be stronger than it would have been had he given to his partner a bond of indemnity against the plaintiff's claim; and that would establish no new liability to the plaintiff. We think that the settlement created no new contract or privity of contract between the parties. Exceptions sustained.

DANFORTH, VIRGIN, FOSTER, and HASKELL, JJ., concurred. LIBBEY, J., did not sit.

Reported by Leslie C. Cornish, Esq., of the Augusta bar.

(44 N. J. E. 291)

WHITE D. Borden and another.
(Court of Chancery of New Jersey. April 16, 1887.)

FRAUD ASSIGNMENT OF MORTGAGE-SUFFICIENCY OF EVIDENCE.

.

The complainant (the mortgagee) made an assignment of a bond and mortgage to the defendant, (the mortgagor.) In an action brought to set aside the assignment as having been fraudulently obtained, the complainant alleged that he was induced to make the assignment through the persuasions of defendant, on the consideration that the latter should provide a home for him the rest of his life. For several years previous, complainant had been boarding with defendant; the consideration being, as he affirmed, the interest on the bond and mortgage. Defendant affirmed the consideration for the assignment to be a large sum of money due him from the complainant for board and moneys advanced prior to the assignment. The evidence showed the complainant to have lived with the defendant for several years after the assignment; that no charge was ever made against him for board, care in sickness, or washing; that the defendant had taken receipts for the interest on the bond and mortgage for each year up to the time of the assignment, paying nothing therefor, and that he never called upon him (complainant) to pay anything more; that suddenly, and without giving any reason, he refused complainant admittance to his house; that the testimony of the defendant and his answer were widely apart as to the amount of money advanced for complainant. The evidence also showed that the complainant was weak in mind and body when the assignment was made. Held, that the assignment was fraudulently obtained.

Bill for relief. On final hearing on pleadings and proofs.
H. M. Nevins, for complainant. J. Steen, for defendants.

RUNYON, Ch. This suit is brought to set aside an assignment made by the complainant, April 26, 1879, to the defendant Clemence Borden, of a bond and mortgage. The bond and mortgage were given to the complainant on the twelfth of January, 1874; the bond by Borden, and the mortgage by him and his wife, upon real estate of his in Shrewsbury township, in Monmouth county. The instruments were given to secure the payment of $2,700, then lent by the complainant to Borden, in one year, with interest at the rate of 7 per cent. per annum. The bill states that about the first of April, 1874, an agreement was made by and between the complainant (who was an elderly single man) and the Bordens that the latter would board the complainant in their house, which was upon the mortgaged premises, and do his washing, and take care of him in sickness, in consideration of the interest upon the bond and mortgage; he to furnish his room; that he boarded with the defendants under that agreement from the first of April, 1874, until April 25, 1879, when, induced, as he alleges, by the persuasion of Mrs. Borden, he having then just recovered from a very severe illness, and being weak in body and mind, he assigned the bond and mortgage to her in consideration of an agreement then made by her with him to provide him a home, and maintain him in the family during all the rest of his life; that he continued to live with them under that agreement until the twelfth of June, 1886, when Borden and his wife refused him admittance to their house, and told him that he must seek a home elsewhere; that he was then compelled to find another place of abode; that he is 54 years old, and is weak and sickly, and unable to work or to support himself, and that he is without means or property except the bond and mortgage, and is homeless, and dependent upon his friends for support. The bill prays that the assignment may be set aside as having been obtained by fraud, and that the amount due Borden for the complainant's board, etc., from April 25, 1879, the date of the assignment, to June 12, 1886, when the Bordens refused to support him longer, may be credited upon the bond and mortgage.

The defendants by their answer, which is under oath, in pursuance of the requirement of the bill, deny that they, or either of them, agreed to board the complainant, and do his washing, and take care of him in sickness, in consideration of the interest upon the bond and mortgage; and they deny that they, or either of them, ever agreed to support him for life in consideration of the assignment of the bond and mortgage; but they allege that the consideration of the assignment was money which he then owed to them, and money which he expected to and did in fact afterwards owe them for board, and for money paid by Borden to or for him and for his benefit, and that the money so due for board, and the money so paid, together amounted to the sum due upon the bond and mortgage, and that, although the defendants boarded him after the making of the assignment, they did so, not from obligation on their part, but merely from benevolence and friendship.

The evidence establishes the truth of the complainant's allegation that he went to board and boarded with the defendants as and under the agreement stated in the bill. Opposed to the defendants' denial is the complainant's testimony on the subject, which is corroborated by the circumstance that Borden never made any charge against the complainant for board or washing or care in sickness, but took a receipt from him upon the bond, under date of the twelfth of January in each year, from the date of the mortgage up to 1879, (in which year the last one was taken.) for the interest for the preceding year. For such receipts he paid nothing, and he had no accounting with the complainant, and never called upon him to pay anything more. Had there been no agreement between the complainant and Borden that the interest should pay for the board, it is reasonable to presume that Borden would have insisted upon a credit upon the principal of the bond and mortgage of whatever was due to him above the amount of interest. The conduct of Borden in the transaction has been consistent only with the existence of the agreement. The Bordens have no claim against the complainant for board or washing or care in sickness up to the date of the assignment; and, on the other hand, it will be held that the interest on the bond and mortgage is paid up to that date.

The bill alleges that the complainant was induced by Mrs. Borden's persuasion to assign the bond and mortgage to her, and that the consideration of the assignment was an agreement that she would provide him a home, and maintain him in the family for life. The answer denies, as before stated, that such agreement was made, and it denies that the complainant was induced to make the assignment by the persuasion of Mrs. Borden; but it alleges that money due to Borden from the complainant for board and money advanced by the former to the latter, of which Borden had kept no account, and which exceeded $1,200, constituted the true consideration of the assignment. In his testimony, Borden says that the complainant then owed him for board to June 12, 1886, $3,170, and for money advanced more than $1,200; so that, according to the answer, the complainant owed Borden, at the date of the assignment, over $4,370. In fact, as already appears, he owed him nothing for board up to that time, and there is no satisfactory evidence that he owed him anything at that time for money advanced. In his testimony, Borden says that he can safely say that the money which he has paid out for the complainant will amount to $500. But in the answer he said it was, at the time when the assignment was made, over $1,200. Moreover, the $500 includes $152.22 paid by him to William W. Clayton, at the request of the complainant, in January, 1880, after the assignment was made, and which he says he did not, when the assignment was made, promise to pay. While he says that an agreement for the future support of the complainant was no part of the consideration of the assignment, he nevertheless boarded the complainant afterwards without charge. He says he did not do so pursuant to any understanding, but did it gratuitously; and he adds that he expected so to keep him so long as the complainant should conduct himself properly. The defendants admit that they refused to keep him as stated in the bill, and they give no proof of any reason for doing so.

The complainant says that Mrs. Borden urged him to make the assignment. because she was apprehensive that "some one would sell the mortgage from them." She probably expressed an apprehension that the mortgage would get into the hands of some one who would foreclose it. She does not deny this allegation, but corroborates the complainant in the statement by saying that he said to her that he "would fix her so that she need never worry about it." It is quite clear that the assignment was obtained from the complainant when he was feeble in mind and body, and under circumstances which should induce the court to annul it. It will be set aside as having been fraudulently obtained, and it will be decreed that the defendants deliver the bond and mortgage to the complainant; but he will be required to credit thereon whatever shall appear to be justly due to the Bordens for board and washing and care in sickness since the assignment, and for money advanced. There will be an account as prayed in the bill. The complainant is entitled to costs.

(42 N. J. E. 613)

REEVES and others v. BEEKMAN, Ex'r, etc.

(Court of Chancery of New Jersey. April 15, 1887.)

1. WILL-LEGACY-CONSTRUCTION-VESTED OR CONTINGENT INTEREST.

A testator in his will gave to his daughter a legacy of $4,000, to be paid to her one year after his decease. He also gave her one-fourth of the remainder of the estate. Afterwards, by codicil, he provided that his executors should pay to her the whole of the interest on the money given to her, and "so much of the princibal as she may need, and her circumstances may require, from time to time; whatever was remaining at her death to go to her issue, and, failing of issue, then to go to testator's grandchildren. Held, that it was clearly the intention of the testator not to make an unqualified gift of the principal to his daughter, and that payments, on account of the legacy, to the legatee, were not to depend upon the will of the executor, but to be determined by the legatee's necessities.