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the defendant's counsel: "Are you not, ant has built on the lot a new house, rebabitually in the habit of getting drunk?" paired the fence, built a sidewalk, planted This was objected to by plaintiff's coun- trees, dug a well, put in a pump, and sel, and the objection was overruled, and built a new barn, using the boards that exception taken. He answered that he were in the old one, and paid the taxes for was not, and the question was not, there a portion of the time; that September 5, fore, very material. The question seems 1887, the plaintiff served notice on the deto have been proper on such cross-exami- fendant to quit as a tenant at will. After nation, as tending to show, at least, a prob- waiting more than 30 days, the plaintiff ability that the plaintiff was drunk at the commenced this action of unlawful detaintime, and that his testimony to the con er in justice's court, to put him out. The trary was not true. If he had been habit. answer in justice's court consisted of a ually in the habit of getting drunk, it general denial, and the substance of the would be very probable that he was drunk facts above stated, under which the dethen, and that drunken ness was his habit. fendant claimed the right to remain in posual condition. It would tend to corrobo- session during life. The justice gave judgrate the testimony that he was drunk at ment of restitution in favor of the plainthe time, which had been contradicted by tiff. The defendant thereupon appealed himself, and was afterwards disputed by to the circuit court, and therein, on leave another witness These findings of the of the court, amended his answer, and, in plaintiff's contributory negligence would effect, alleged the facts above stated, as a prevent his recovery. 11 all the other find-counter-claim. Upon a jury trial being ingw had been in his favor. All the other waived, and a trial had, the court found exceptions, therefure, are immaterial, and in favor of the plaintiff, and ordered judgneed not be considered. Hassa v. Junger, nient of restitution accordingly; and from 15 Wix. 598; Pitzner. v. Shinnick, 39 Wis. the judgment so entered therein the de129; Fitzgerald v. Weston, 52 Wis. 354,9 N. fendant brings this appeal. W. Rep. 13. The judgment of the circuit E. C. Higbee, for appellant. Winter, court is affirmed.

Esch & Winter, for respondent.

CASSODAY, J., (after stating the facts as GO Wis. 413)

above.) It is conceded that the defendBUEL V. BUEL.

ant and his wife peaceably entered into the

possession of the premises in question, 17 (Supreme Court of Wisconsin. April 8, 1890.)

. April 8, 1890.) | years before the commencement of this acLANDLORD AND TENANT-RELATION.

tion, under the agreement mentioned in

the foregoing statement. By the terms Rev. St. Wis. 98858, provides that "any ten

of that agreement they were to have and ant or lessoo, " under the circumstances thereinafter stated, 'may be summarily dispossessed by enjoy the possession of such premises as action before a justice of the peace. A minor iz a home, free and without any reservation years old agreed with his parents to apply his wages of rent, during their lives. Upon the faith to the purohase of a home for them during their of that agreement, the defendant made the lives. The parents went into possession of the lot, improvements mentioned. The plaintiff and shortly after coming of age the son received a testified, in effect, that he always regardconveyanco in his own name. The father after; ed the buildings so put upon the place as wards bullt a new house, repaired fences, and belonging to his father; that he never planted trees. Held, the relation of landlord and ionant did not exist, and the son was not entitled leased the premises to his father, but gave to proceed summarily for possession under the him possession for life, as stated. Had statuto.

Ruch agreement been evidenced by writ

ing, executed in due form of law, it would Appeal from circuit court, La Crosse

court, La Crosse have created in the defendants estates for county,

life, and the same would have been denomThe facts are undisputed, and to the ef- inated "estates of freehold." Section 2029,

, ; fect that the plaintiff was born October Rev. St. The same section provides that 10, 1850, and is the son of the defendant; estates of a minor character, as "estates that, in accordance with an understand for years, shall be denominated 'chattels ing with his father, he worked out after he real,' and estates at will or by sufferance became 17 years of age, with the view of shall be chattel interests.'” Id. This is using his wages in buying a place to be an action of unlawful detainer. It is conoccupied by his father and mother during ceded by the learned counsel for the plaintheir lives, for a home; that accordingly. tiff that such an action cannot be mainand more or less at his father's request, he tained unless the relation of landlord and entered into an agreement with Charles tenant exists between the plaintiff and A. Watson for the lot, with a small house the defendant. In such cases the statute upon it, in question; that when he was only authorizes such actions where "any about 30 years of age his father and moth-tenant or lessee at will, or by sufferance, or er moved onto the lot, with the under for any part of a year, or for one or more standing by and between them and the years, of any real property,

* and plaintiff that they should occupy the same the assigns, under-tenants, or legal repreas their home during their lires, and that sentatives of such tenant or lessee," holds they have so occupied it as such home over, in the manner prescribed in section ever since; that November 13, 1871, and 3358, Rev. St. Prior to the time when the Just after the plaintiff became of age, he legislature of this state borrowed that made the last payment to Watson on the statute from New York, it was said by lot, from his wages, and received from SAVAGE,C.J., speaking for the whole court: him, in his own name, a warranty deed of “This statute is applicable between landthe same; that since that time the defend- | lord and tenant only." It" was clearly de

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(1 S. D. 117) signed to afford a speedy remedy where the

GREELEY V. WINSOR et al. conventional relation of landlord and ten

(Supreme Court of South Dakota. May 12, 1890.) ant existed, and not where that relation

CHATTEL MORTGAGE - LEASE - FRAUDULENT CONis created by operation of law.” Evert

VEYANCES. son v. Sutton, 5 Wend. 281. This rule has

1. A written lease contained the following prosince been repeatedly sanctioned in that

vision: “That said rents, whether due or to bestate. Sims v. Humphrey, 4 Denio, 185;

come due, shall be a perpetual lien on any and all Benjamin v. Benjamin, 5 N. Y. 383; People goods, merchandise, furniture, and fixtures now v. Simpson, 28 N. Y. 55. Another section contained, or which may at any time during the of our statutes has extended the remedy continuance of this lease be contained, in the buildagainst a mortgagor, or any person claim- | ing, except such goods as are sold in the usual ing under him, holding over after foreclo

course of retail trade." The lease was executed

and filed as required by the law concerning chattel sure of the mortgage and sale and deed thereon; and also against one working and must be treated as, a chattel mortgage.

mortgages. Held, that such provision constituted, lands on shares, and holding over con- 2. The clause, “except such goods as are sold trary to the agreement. Section 3359, Rev. in the usual course of retail trade,” was an implied St. With these exceptions, the rule thus permission to the mortgagor to make such sales; stated by SAVAGE, C.J., prevails here. This

and, there being nothing in the lease indicating view is strengthened by the fact that, even

any appropriation or intent to appropriate the pro

ceeds of sales to any other purpose, it was permiswhere the entry is forcible or unlawful,

sion to the mortgagor to sell such goods, being a yet, if the person making such entry "con

part of the mortgaged property, for his own benefit, tinues in possession three years, quietly and is at least presumptively fraudulent as to credand peaceably, “by disseisin,” he cannot itors of the mortgagor; CORSON, P. J., expressing be proceeded against under the statute. the opinion that it should be held conclusively so. Section 3361, Rev. St. It is very obvious 3. Such mortgage, being presumptively fraudthat the summary remedy given by sec

ulent as to a portion of the property therein detion 3358 of the statutes was never intend

scribed, is presumptively invalid as to all. So held,

where a portion of the property, “furniture and ed as a substitute for ejectment. Jarvis v.

fixtures," was not included in the power of sale. Hamilton, 16 Wis. 580. A justice of the

(Syllabus by the Court.) peace has no jurisdiction to try the title to land. But the facts upon which the right Appeal from district court, Minnehaha of removal is based may be put in issue by county. the answer, and the issues so raised may Winsor & Kittredge, for appellants. be tried and determined in a justice's court. Wynn & Nock, for respondent. Newton v. Leary, 64 Wis. 190, 25 N. W. Rep. 39; Dawson v. Dawson, 17 Neb. 671, 24 KELLAM, J. On the 3d day of October, N. W. Rep. 339. Even where the facts 1883, respondent, who was then the owner show that the defendant has an interest of a store-building in the city of Sioux in the premises, which can only be fully Falls, leased the same, by a written conprotected in a court of equity, yet, if they tact, to Waxman & Co., for the term of are such as to disprove the conventional re- five years, which lease was duly filed for lation of landloril and tenant, they will be record October 12, 1883, in the office of regsufficient to defeat such action of unlaw. ister of deeds of the proper county, and ful detainer. Dawson v. Dawson, supra. was “duly entered upon the chattel mortThus in Nightingale v. Barens, 47 Wis. 389, gage calendar of said office.” The lease 2 N. W. Rep. 767, the main body of the in- contained the following provision: “That strument under which the defendant re- said rents, whether due or to become due, sisted such summary proceedings was in shall be a perpetual lien on any and all the form of a lease of the premises, in which goods and merchandise, furniture, and fixthe lessee had the privilege to purchase tures now contained, or which may at any and was to pay taxes, etc. But it was time during the continuance of this lease held that as the relation between the par- be contained, in the building, except such ties, in respect to the use and possession goods as are sold in the usual course of reof the premises, “was not merely of land- tail trade.” Afterwards the lessees, Waxlord and tenant,” the action could not be man & Co., gaveseveral chattel mortgages, maintained. Such ruling was expressly to secure different creditors, upon the approved in Steele v. Bond, 28 Minn. 267, 9 stock of merchandise, furniture, and fixN. W. Rep. 772; Grohousky v. Long, 20 tures contained in the said leased storeNeb. 362, 30 N. W. Rep. 257. If, instead of building, being the same personal property this proceeding, the plaintiff had brought described and referred to in the provision an action of ejectment, there would seem of said lease above quoted. Afterwards to be no good reason why the defendant the appellants Winsor & Swezey, as the

attorneys and agents of the several mort

gagees, undertook to foreclose said chattel Certainly the defendant is not to be de- mortgages, and to that end took possesprived of whatever rights he has in the sion of said mortgaged property and adverpremises merely because the plaintiff pro- tised the same. Greeley, the lessor, and receeded in a summary way to eject him. spondent herein, then commenced an action Especially is this so when, as appears in against said Winsor & Swezey to restrain the record, the plaintiff admits facts show. such foreclosure sale. At this time, by an ing that he has never been in possession, arrangement between the parties, the reand that theconventional relation of land- spondent dismissed the said action and relord and tenant never existed between him leased his claim upon said goods, furniture, and the defendant. The judgment of the and fixtures, in consideration of a bond circuit court is reversed, and the cause is from said appellants to secure him against remanded, with directions to dismiss the loss of rent on said lease to an amount complaint.

therein named; the condition of the bond

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might not

have availed himself of the facts at

being, " that if the said Charles A. Greeley , an important factor in the transaction of shall and does sustain any damages from business in the state, and the courts should the loss or decrease of rents during said adopt and be governed by such principles four years, and had at the time of the com- and rules in the construction and effect mencement of his said action a valid and given to these instruments, in the different subsisting lien, legal or equitable, upon or forms, and with the various qualifying against said property, or any part thereof provisions, with which they are presented, as security for said rents according to the as will be most likely to conserve the rights terms of said lease, and the undersigned and interests of all parties interested in shall pay or cause to be paid," etc., " then the mortgaged property, whether mortthis obligation," ctc. Upon this obliga- gagor, mortgagee, or general creditor. tion, respondent Greeley brought this ac- In this case the mortgagor was permitted tion against appellants, obligors therein by the terms of the mortgage to make sales numed. To the complaint, setting out from the mortgaged property, in the usual the history of the bond and a copy of the course of retail trade, for his own use and lease, appellants demurred for insutficiency. | benefit. The right to appropriate the proThe demurrer was overruled, and from such ceeds of sales was unlimited. It was not decision this appeal is taken.

even qualified by any undertaking, express The controrerny is over the force and ef- or implied, that such proceeds, or any fect of the provision in the lease for a lien part of the same, should be reinvested in for rent. If, as against the mortgage cred- goods, that the security might thus be itors represented by appellants, respond- kept intact. It was plenary license to

, . ent had a valid and subsisting lien " upon possess, manage, and sell the mortgaged the property taken by them under their property, subject only to the condition mortgages, then the condition of the bond that the sales should be made in the usual ls met under which appellants' liability as course of retail trade, allowing the entire obligors should attach, and the complaint proceeds to be diverted to purposes hostile would state a cause of action against to the interests of the unpreferred creditther. If such provision is effectual at all ors, if the mortgagor should be so disposed. as against creditors, it is plain it must be The mortgagec had agreed in advance that as a chattel nortgage. The rents were to the mortgagor might dispose of the propbe a "perpetual llen." The possession of

" The possession of erty which apparently constituted his sethe property did not change, and no lien curity,-retain, spend, or give away the except that of a chattel mortgage is tol proceeds, as he saw fit; and thus his entire erated by our statute, unless accompanied | stock might be dissipated and melt away by powolusion in the lienor. It seems to without diminishing the aggregate of inhave all the requisites of a chattel mort-debtedness a dollar, and this might all ocgage, both as to its construction and its cur in exact pursuance of the terms of this execution, and the statutory reyuirements mortgage. Every debtor is, in a sense, an to filing as a chattel mortgage were trustee of his property for the benefit of fully complied with.

his creditors; and every creditor has a The pivotal question, then, is, what was right to have the trust so administered as the legal value of respondent's chattel not to unfairly prejudice his interests, or mortgage upon his lessee's stock of goods, jeopardize his chances for the collection of furnlture, and fixtures, "except such goods his debt. Without further argument, it as are sold in the usual course of retail is sufficient to say that such mortgages trade?" for the answer to this question are held to be at least presumptively fraudmust determine whether or not responsulent in most of the states of the Union, dent held a "valld and subsisting lien " up- and in many of them conclusively so. It on such property, or any part of it. While is needless to fortify this proposition with there is here no express and affirmative authorities. Whether in this state the reservation in the leknee and mortgagor of presumption is a rebuttable one, it is not a power to sell any of the mortgaged prop- now necessary to consider or determine. erty, such power is no specifically recog. The question is before us on demurrer to nized and provided for as to be tanta- the complaint. The complaint presents mount to express authority; and the im- this mortgage as showing respondent's medinte question before us is, what effect right to the property which the bond of has such a reservatiou of an unqualified appellants represents. If the mortgage on power of sale upon an otherwise valid its face is presumptively fraudulent, then mortgage? In the absence of any provis- the complaint would state no cause of acion indicating directly or indirectly any in- tion, because, if presumptively fraudulent, tention of the parties, or either of them, it is presumptively void; and no facts are that the proceeds of sales, or any part stated in the complaint tending to negathereof, should be used, applied, or appro- tive or rebut such presumption. The bond priated in any other manner, or to any was only to be operative in case the reother purpose, than as the interest and spondent had a valid and subsisting lien pleasure of the mortgagor might dictate, upon the property, and the complaint ofthe instrument at once attaches itself to fers the mortgage clause of the lease as that class of chattel mortgages in which showing such lien. Is reserved to the mortgagor a power of A more troublesome question occurs sale for his own benefit, and is subject to when we come to consider the effect of the the law governing such mortgages. Chat- power of sale upon the property in the tel mortgages are authorized by our stat. mortgage not covered by nor included in utes, and are recognized by and in all de such power of sale. The mortgage was partments of business is a legitimate upon “goods, merchandise, furniture, and ineans of security, useful alike to debtor fixtures." The permission to sell covered and creditor. They have become and are only “such goods as are sold in the usual course of retail trade.". Is the mortgage | mortgage would allow a mortgagee, if so prima facie fraudulent in toto, or is it good disposed, without risk or danger to his as to the furniture and fixtures; they evi- own security, unless an actual fraudulent dently not being included in the permission intent could be proved, to shelter under to sell? The law condemns such a mort- his mortgage property which he never gage as this, not because its terms prove expected to subject to his apparent lien, any fraudulent or corrupt motive on the and in the interest of the mortgagor expart of those who made or those who hibit his mortgage on the record, and, thus took it, but because such a mortgage fur- with entire safety to his own security, nishes such easy facilities for fraud, and is experiment with the chances of driving 80 well adapted to accomplish unfair and away approaching creditors. We think fraudulent results, as to put it under the creditors have a right to complain of a ban of suspicion. It is condemned not be- chattel mortgage susceptible of such uses, cause the transaction was inspired by a and that it is at least prima facie void bad intent, but because it naturally leads as to all the property covered by it. The to bad results. If it were the actual, rulings of the courts have not been uniproved intent of the parties which fixed form upon this question, but this view is the character of this instrument as fraud- fully sustained in the following cases: Rusulent, it would hardly be contended that sell v. Winne, 37 N. Y. 591; Horton v. because they intended to and did reserve Williams, 21 Minn. 187; Wilson v. Voight, the furniture and fixtures from the opera- (Colo.) 13 Pac. Rep. 726; Harman v. Hostion of this vicious power of sale the mort- kins, 56 Miss. 142.

, gage ought to be beld good as to them; It follows that the demurrer should but upon the familiar principle that every have been sustained. The judgment of the man must be presumed to have intended court below overruling the demurrer is the natural and legitimate results of his reversed. All the judges concurring. acts, the law substitutes the effect for the intent, and, as it has found that the effect CORSON, P. J. I am of the opinion that of such provisions is ordinarily bad, it as- the court should go further, and hold that sumes that the intent is ordinarily, or, in the mortgage or agreement in this case is other words, presumptively, bad.

not only at least presumptively fraudulent, There are other reasons for applying but absolutely fraudulent, as to the credit. this rule to the entire mortgage provision ors of the mortgagor. A chattel mortin this case. The mortgagee, while claim- gage in which the mortgagor is permiting to have security upon all this proper- ted, by the terms of the mortgage, to sell ty, has stipulated and consented that the all or any part of the property emmortgagor might gradually, by retail braced in the mortgage, and apply the sales, deplete and consume the bulk of his s

proceeds to his own use and benefit, is, security, leaving the burden of the debt, in my opinion, fraudulent in law, without not upon the entire property which he regard to the intent of the parties. It is pretends to hold under, and which he pro- evident that, as to the property so permittects by his mortgage, but upon the furni- ted to be sold for the benefit of the mortture and fixtures, which alone, of all the

gagor, the mortgagee has no real interest mortgaged property, is to remain under

in or lien upon it, and that the effect of the lien of his mortgage, and must consti- such a mortgage will necessarily be to tute his real security. It is very evident aid the mortgagor in withholding his 'that all the real security respondent could property so covered by the mortgage from have under his mortgage was the proper- his creditors.' The agreement is necessarity that the mortgagor had no right to ly fraudulent, because it operates, of neces

, sell. Power to sell the goods was power sity, to hinder, delay, and defraud the to annul and destroy the lien of the mort- creditors, by securing to the debtor the gage upon them; and this respondent had

use and benefit of his property and its agreed might be done, and that without

proceeds, while it protects it from levy any diminution of the debt as the result of

and sale for the payment of his debts. such sales. If respondent were content Honesty and good faith are necessary to with security upon the furniture and fix- render a chattel mortgage valid; and tures only,-and such conclusion the facts whenever it appears that one object was, clearly argue,-he ought not to be allowed or the effect is, to hinder and delay the to incumber by the same instrument a creditors to any extent, the entire instrularge amount of other property from which ment is, in judgment of law, fraudulent he expected no benefit or advantage. To and void. the creditors of the mortgagor, respondent said by this mortgage: “I hold a

(1 S. D. 125) mortgage upon this entire stock, and fur

NOYES et al. v. LANE. niture and fixtures, to secure five years' | (Supreme Court of South Dakota. May 12, 1890.) rent at $1,300 per year; and, if you desire

ATTACHMENT-MOTION TO DISCHARGE - TRAVERSE to proceed against any of this property

OF AFFIDAVIT. for the collection of your claims, you must

Where a warrant of attachment was issued pay off my niortgage as provided in the

upon an affidavit charging that defendant “has statute.” But to the mortgagor he said: sold, assigned, and disposed of a portion of his “You may pay no attention to my mort- property with intent to defraud his creditors, and gage, so far as the goods are concerned. is about to sell and dispose of other of his property You may sell them as though I had no

with like intent,” a statement in defendant's afimortgage, but the furniture and fixtures

davit, on motion to discharge, “that he has never must remain and be bound by my mort

entertained any notion of selling and disposing of,

or assigning any of, his property with intent to gage; and, as between us, I will depend defraud his creditors," is not a good denial of the upon them for my security.” Such a second allegation of the attachment affidavit, but

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a donla! " that he intended to sell or dispose of his , this court and the attorneys who presentproperty only in the regular course of trade, at reed the case, that both cases rested upon tall," held suficient to throw the burden of proof the same facts. In this case, no secretion upon the plaintill.

of property having been charged, defend. (Syllabus by the Court.)

ant was not called upon to deny or disAppeal from the district court, Spink prove it. There is left, then, only this precounty.

cise question: Is the allegation that deH. Č. & T. J. Walsh, C. T. Howard, and fendant is about to dispose of other of his John B. & W. H. Sanborn, for appellant. property with intent to defraud his credN. P. Bromley and A. B. Melville, for re- itors denied by the counter-statement that spondent.

"he has never entertained any notion of

selling and disposing of, or assigning any KELLAM, J. This is an appeal from an of, his property with intent to defraud his order discharging an attachment. The creditors, or that he intended to sell or discnne was submitted upon the briefs and pose of his property only in the regular arguments in Drug Co. v. Lane, post, 320, course of trade, at retail?” Conceding (decided at this term.) In this case, as in that the expression, “has never enterthat, the alleged fraudulent character of tained any notion," is equivalent to denythe chattel inortgage given by C. J. Lane ing that he is "about to," he does not to William A. Lane (considered in Lane v. | then deny that he is about to“ dispose of, Starr, ante, 212, also decided at this term) but that he is about to "sell and dispose was relied upon as the main ground of at of." The statement is quite consistent tachment, or, rather, as the principle evi- with the presence of an intention to “disdence in support of the allegations of the pose of "in some other manner and by some affidavit upon which the warrant of at- other means than by selling. “ Dispose of " tachment was innued. That mortgage is a broader and more comprehensive exwas held valid by this court, and the pres-pression than "sell." Selling property is ent inquiry is thus limited to an examina- but one means of disposing of it, and the tion of the other matters and facts before denial that he was about to “sell and disthe court, upon the motion to discharge pore of" is simply a denial that he was the attachment, and upon which the or- about to “dispose of" by selling. He does der appealed from was made. An inspec- not deny that he is about to do either, but tion of the original papers in this case de that he is about to do bot5. If the develops the fact that the warrant was nial stopped here, we should hold it insufIssued upon an affidavit alleging "that ficient as a traverse; but he adds" or that the defendant has sold, assigned, and dis- he intended to sell or dispose of his proppond of a portion of his property with in-erty only in the regular course of trade, at tent to defraud his creditors, and is about retail." The denial, as a whole, is not a to sell and dispose of other of his prop- model of syntactical construction, but we erty with like intent." Defendant moved | hardly think its evident meaning is obto discharge the attachment, and, upon scured by its questionable grammar. To the hearing of the motion, andavits were sell or dispose of goods in the regular presented and read by both sides. De course of trade, at retail, is to sell or disfendant's affidavit on such motion says | pose of them according to, and in con" that he has not sold or disposed of his formity with, the general and established property

only in the regular custom of retail dealers, and necessarily course of business, at retail, honestly and precludes the idea of an irregularor fraudstraightforward,

and not for ulent disposition of them. This circuitous the purpose of defrauding any person method of asserting a fact ought not to whom oover;" "that he has not assigned be encouraged, but we think in this case Any of his property, with the intent to de- it must be held to be a sufficient denial of fraud biscreditors; " "that he has neveren- | the allegation that defendant was about tertained any notion of selling and disto dispose of his property with intent to posing of, or a signing any of, bis property defraud his creditors. with intent to defraud his creditors, or The defendant having denied the exist. that he intended to sell or dispose of his | ence of each and every of the grounds upproperty only in the regular course of on which the warrant of attachment was trade at retall." In his brief, the learned issued, the burden was thrown upon the counsel for appellant lias analyzed this affi- | plaintiffs to establish the fact that one or davit, and reaches the conclusion that the more of such grounds really existed. Apfollowing allegations of the procuring atti-pellants claim that this was done by the davit are untraversed: (1) That he has affidavits of Howard and Walsh. Howsecreted his property; (2) that he is ard's affidavit was to the effect that he about to secrete his property; (3) that he held a claim for collection against defendis about to dispose of his properts with ant, and that in a conversation with him intent to defraud his creditors.

in regard to such claim defendant told It will be observed that there is, in the him, in speaking of the mortgage to Willamdavit upon which the warrant of at. iam A. Lane," that he had an understandtachment was issued, no allegation charging that he could use the proceeds of the ing secretion of property, either accoin-sales of the stock to the extent of one-half plished or contemplated. The error of as- thereof, as he saw fit, and would pay suming the presence of Ruch allegations such of his creditors as let him alone. doubticas resulted from the presentation Walsh's affidavit states a similar con verof this case in connection with Hornick sation with defendant, at another time. Drug Co. v. Same Defendant, in which without stopping to discuss the importhere is a charge of secretion, with the un- tance or effect of such an understanding, in derstanding, at the argument, both by view of the opinion of this court in Lane

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