the defendant's possession, were produced at the plaintiffs' request, and they laid them in, in evidence, together with a receipt given to the bank for the $800. The bank book was the original one, in favor of Ann McDonald, by her maiden name of McCuen; but over her name the bank had entered, "Michael McDonald, Executor of Bryan McDonald, Administrator." The order read as follows:

""To the Connecticut Savings Bank: Please transfer all the balance due me on Deposit Book No. 28,356, being nine hundred dollars, with a year's interest, nearly, to Brian McDonald, to be drawn by him during life. After his death, the remainder to be divided equally among Susan McNamara, Kate McGuinness, Ann McKeon, Ellen McKeon, and Mary Callan.

her

"Ann X McCuen. mark.

"In the presence of William S. Pardee.. "New Haven, July 17th, 1894."

The receipt was signed by "Bryan McDonald, Administrator," and proof was also introduced that he had been appointed, a few months previously, administrator of the estate of Ann McDonald, who was his wife, and had filed a probate certificate of that fact with the bank. Evidence was offered that the order, upon its execution, was delivered, with the bank book, to Bryan McDonald, but none that he did or said anything indicating that he received them in any way in the plaintiffs' behalf, or that the bank ever knew that any order had been drawn, or was informed that the plaintiffs had or claimed any interest in the deposit, or to show that Bryan McDonald ever had any communication with them in respect to it. Under these circumstances, the nonsuit was properly granted. The order, not having been delivered to the bank or brought to its knowledge before Mrs. McDonald's death, was revoked by that event. So far as the evidence disclosed, the bank book, though delivered to her husband, was not accepted or held by him in behalf of the plaintiffs, nor did they even know that it had been put in his possession. Their claim rested upon an inchoate gift, which never became of effect, either in law or equity. If they had been able to show that Bryan McDonald accepted the bank book and the accompanying order in their behalf as well as his own, the order, while inoperative, as such, for want of delivery or notice to the bank in her lifetime, might have been effectual to define the terms upon which he received the book, and to constitute a declaration of trust, by virtue of which her administrator might be bound to cause a transfer to be made upon the books of the bank, in conformity with its directions. Even in that case, however, the only trust with which the administrator would have been chargeable in favor of the plaintiffs, would have been to cause the transfer to be made on the books of the bank, in the manner indicated by the order, and thus to clothe himself individually with power to draw out any

and all of the deposit at his pleasure, from time to time, during his life, for his own use. Such was the legal effect of the form of transfer directed by Mrs. McDonald. She imposed no limitations whatever on his right to resort to the fund, except that it must be exercised by himself, and would not survive him. The plaintiffs were to be entitled merely to what, if anything, he might choose to leave untouched.

It was not claimed by the appellants in their argument before this court that Mrs. McDonald ever had any other deposit in the Connecticut Savings Bank, or ever gave any other order upon it than that produced upon the trial in the superior court, and, as to all the facts relevant to these, they were then fully heard. In view of the evidence on which they relied, it is plain that there could have been no recovery under the first count had the demurrer been overruled. The order did not purport to limit Bryan McDonald's right to draw from the deposit to such amount as might be found necessary for his proper support. Notice to the bank of the gift to the plaintiffs, and of the order by which it was to be accomplished, was never given. Bryan McDonald did not draw the $800 in his individual capacity, by virtue of the order, but as the administrator of his wife's estate. If it was part of that estate, the plaintiffs had no concern with it. If it had appeared that, in equity, it was not a part, because the legal title was held upon a trust sufficiently constituted and declared, the beneficial title to it, when withdrawn, would have become absolute in Bryan McDonald, for thus the trust would be substantially fulfilled. The second count, as originally drawn, claimed the full amount left on deposit at the decease of Mrs. McDonald, but the bill of particulars limited the plaintiffs' recovery to the $800, which was actually withdrawn. Their rights in remainder were therefore not in issue.

The real case made out by the plaintiffs at the trial was essentially different from the case alleged. A meaning was attributed to a written document which it cannot bear, and a cause of action made out by pleading as facts what had no existence. It may be assumed that the framing of such a fictitious complaint was due to misstatements made to counsel; nor is it necessary to suppose them made with knowledge of their falsity. It is decisive of the case that the complaint was one which could not be supported by proof. The plaintiffs, therefore, were not injuriously affected by the erroneous ruling on the demurrer. The law was against them, and they could not have held a verdict under either count. To avoid any seeming sanction of the duplication of counts in the complaint, it is proper to observe that the second was made to fulfill an office for which it was not adapted or designed. Under the practice act, the form known as the "common counts" can be used only as an entire complaint for the commencement of an action. It can never follow a special count.

Practice Book, p. 12, rule 2, § 1; Breweries' Corp. v. Baker, 68 Conn. 327, 342, 36 Atl. 785. There is no error. The other judges concurred.

SMITH V. BROCKETT.

(Supreme Court of Errors of Connecticut. July 13, 1897.)

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REPLEVIN-PLEADING AND PROOF - FRAUDULENT TRANSFER EVIDENCE RECORD OF JUDICIAL PROCEEDINGS IN ANOTHER STATE DECLARATIONS OF CONSPIRATOR-DISCREDITING WITNESS. 1. Gen. St. §§ 905, 1330, excepting the action of replevin from the leading provisions of the practice act, and providing that defendant may plead "the general issue, with or without notice, as may be necessary," authorize defendant under the general issue, with notice that he will prove that he took the goods as sheriff on an attachment against H., in favor of C., and that they were and still are the property of H., to prove that plaintiff got title through a fraudulent conspiracy to cheat the creditors of H., who as to them remained the real owner.

2. Plaintiff in replevin for a stock of goods which he bought in Boston of H., an insolvent, and shipped to D. & R., a firm of auctioneers in New York, and which was attached in transit as the property of H., having testified that he learned through said firm that the goods were for sale, and went with one of them, his brother-in-law, to Boston, to examine them, may on cross-examination be asked whether he knew that D. & R. were in the business of buying bankrupts' stocks, for the purpose of cheating their creditors, as, if he did, it would affect his direct testimony, and tend to show that, if the sale was fraudulent, he participated in the fraud.

3. A witness cannot be discredited by showing that he is an insolvent debtor.

4. Error in refusing to allow a question on cross-examination is cured by the witness subsequently giving in rebuttal the testimony sought to be elicited.

5. The sale by a tradesman of his entire stock of goods to a stranger from another state, followed by their shipment thither, consigned to auctioneers, being a transaction out of the common course of business, it is proper in replevin by the nominal purchaser, against one who has attached the goods as the property of the seller, an insolvent, to allow a witness for plaintiff, who was one of the consignees, and active in promoting the purchase, to be asked on cross-examination if he had negotiated similar transactions with other tradesmen, about the time, at the same place, and had been employed by plaintiff for such purpose, as these facts, if shown, would tend to discredit his statement that the sale was made to plaintiff, as well as show the conspiracy to defraud the creditors of the seller, claimed by the defense.

6. A copy of the record of an examination in the court of insolvency of another state is properly excluded where the exemplification lacks the certificate from the judge of the court, required by Rev. St. U. S. § 905.

7. Declaration by one as to past transactions, though made before a court, are not admissible against another, though at the time of such transaction they were conspirators to defraud his creditors.

8. It being sufficient, under Pub. St. Mass. 1882, p. 880, c. 157, §§ 6, 7, to minute all proceedings on a voluntary petition in insolvency on the docket of the court of insolvency, down to the point of actual assignment of the insolvent estate, and such entries being the record of judicial proceedings, a certified copy of them is admissible, as proof that such proceedings have been had.

9. The record of a court of insolvency of Massachusetts showing that "Lewis Harris," of Boston,

who filed petition in insolvency, included C., H. & Co. in the schedule of creditors, tends to identify him with "Louis Harris," of Boston, who sold his stock of goods to plaintiff, which defendant attached for C., H. & Co., as creditors of Louis Harris.

Appeal from superior court, New Haven county; John M. Thayer, Judge.

Replevin by Heyman A. Smith against Luzerne A. Brockett for a stock of boots and shoes. Judgment for plaintiff, and defendant appeals. Reversed.

The finding stated the following facts: Upon the 21st day of February, 1895, the goods replevied were the property of Lewis Harris, of Boston, Mass., who was then engaged in the retail shoe business in East Boston, and constituted his entire stock in trade. On that day he sold and delivered them to the plaintiff, for $1,450, which the latter then paid to him. Within a few days the goods were by the plaintiff shipped by rail to Doblin & Rosenthal, auctioneers, at 225 East Forty-Second street, New York, and, while in transit through New Haven, were attached by the defendant as a deputy sheriff, upon a lawful writ of attachment in favor of the ClarkHutchinson Company, of Boston, against said Harris, as the property of said Harris. The defendant claimed upon the trial that Harris, at the time of said sale, was insolvent; that, under the statutes and common law of Massachusetts, said sale was out of the ordinary course of business, and was prima facie fraudulent and void against said attaching creditor; and that the transaction between Smith and Harris was one of a series of fraudulent transactions of Coughlin, Doblin & Rosenthal, and Smith, and in furtherance of a general plan between them to cheat and defraud the creditors of Harris out of their claims against him, by securing to themselves all of his property. To prove the insolvency of Harris, the defendant offered in evidence certain papers certified by the register of the Suffolk (Massachusetts) court of insolvency to be a true copy of papers appertaining to said court, and on file and of record in the office of said court, to wit, schedule of creditors and property filed June 12, 1895, in the case of Lewis Harris, of Boston, in said county of Suffolk, an insolvent debtor, and copy of the docket entries in said case, the first docket entry being, "June 11, 1895, (1) pet'n by debtor;" and also another paper, certified by the same official to be a copy of a paper appertaining to said court, on file, etc., "to wit, the examination of Lewis Harris, of Boston, in said county of Suffolk, insolvent debtor," taken February 7, 1896. Upon the first of said papers was the certifiIcate of the judge of said court of insolvency that the person certifying as the registrar of said court was such officer, the proper certifying officer of the court, and had, by law, custody of the seal of said court, its books, records, documents, and papers. No such certificate was attached to the second of said papers. To the admission of these papers in

evidence, counsel for the plaintiff objected, as each was offered, on the ground that they were not properly authenticated, and did not purport to be a copy of the insolvency proceedings, and did not show that said Harris was ever adjudicated an insolvent, and did not show upon what, if any, proceedings he was adjudicated an insolvent, and that it did not appear that the Harris therein named was the one who sold these goods to the plaintiff. The court sustained the objection as to each of the papers. The plaintiff testified that he learned that the stock of goods was for sale through Doblin & Rosenthal, the former of whom was his brother-in-law, and that he went to Boston with Doblin to examine the stock before purchasing. Upon cross-examination the defendant's counsel asked him the following question: "Did you know that your agents, Doblin & Rosenthal, were in the business of buying bankrupts' stocks, for the purpose of cheating their creditors?" To this question the plaintiff's counsel objected, and the objection was sustained. Doblin was called as a witness for the plaintiff, and testified in chief that he and his partner heard that Harris' stock of goods was for sale, through one Coughlin, of Boston; that his partner, Rosenthal, went to Boston to see it, and wrote the witness that he thought the plaintiff (who is a shoe dealer in New York) could use the stock; that the witness thereupon told the plaintiff about it; and that they went on to Boston, and examined the stock; and that the plaintiff bought it. Upon cross-examination of this witness, the defendant's counsel asked him the following question: "Have you recently been examined in insolvency in New York?" The plaintiff's counsel objected to the question as not proper cross-examination, and the objection was sustained. This question was asked of this witness (he having first been asked and testified that himself, Rosenthal, and the plaintiff went to Harris' store together) on cross-examination: "Did you make any inquiry of Mr. Harris, or was any made in your hearing, as to the amount of the indebtedness of Mr. Harris?" The question was objected to as not cross-examination, and the objection was sustained. The witness was again called on rebuttal, and then testified that inquiry was made in his presence of Mr. Harris as to his property and indebtedness, and that Harris replied that he owned the building in which his stock was, and the building across the streets, and that he had no indebtedness. This witness, when called in chief, was asked on cross-examination the following questions: "Did you have a transaction of this sort [meaning the purchase of an entire stock of goods] with a Mr. Weil, a Walker street dry-goods firm?" "Is this the only stock of goods in East Boston that your firm bought at that time?" "Did your firm buy any other stocks in East Boston?" "Were you Smith's agents for the purpose of purchasing any other stocks in Boston?" To each of these questions, when put, the plaintiff's

counsel objected, because they were not proper cross-examination, and each objection was sustained. The defendant offered in evidence declarations of Rosenthal and Harris (who were not called as witnesses), claiming them both as declarations of conspirators with the plaintiff, and to prove a conspiracy; but the court excluded them, being of opinion that no prima facie proof of any conspiracy had been shown. To all evidence offered by the defendant for the purpose of proving fraud, or conspiracy, or the insolvency of Harris, the plaintiff, in addition to the grounds of objection stated heretofore, made the general objection that it was inadmissible under the pleadings. These were a complaint in the statutory form, and the general issue, with notice that the defendant would offer evidence to prove that he had taken the goods as a deputy sheriff, on an attachment against Harris in favor of the Clark-Hutchinson Company, and that they then were, and still are, the property of Harris.

Charles H. Fowler, for appellant. David Strouse, for appellee.

BALDWIN, J. The leading provisions of the practice act do not apply to actions of replevin, and the statute authorizes a plea of "the general issue, with or without notice, as may be necessary." Gen. St. §§ 905, 1330. Under such a plea, any evidence which goes to meet the plaintiff's allegations that the goods in question were his property, of which he was entitled to the immediate possession, and that the defendant has wrongfully detained them from him, is relevant and admissible, subject to the statutory rule as to notice contained in Revision 1875, p. 424, tit. 19, c. 7, § 10. It was therefore competent for the defendant in this action to offer proof that the plaintiff's title was the fruit of a fraudulent conspiracy to cheat the creditors of Harris, who, as to them, remained the real owner, and upon an attachment against whom the goods were rightfully detained. The issue remains the same, whatever notice may be filed, and the notice is always liberally construed in favor of the pleader. Curtis v. Gill, 34 Conn. 56; Merrill v. Everett, 38 Conn. 40.

The plaintiff, after buying the goods from Harris, had shipped them from Boston to Doblin & Rosenthal, a firm of auctioneers in New York City, and they were attached while in transit through this state. He testified in his own behalf that he learned that they were for sale through this same firm, and went on to Boston with one of them, who was his brother-in-law, to examine them before purchasing. Upon cross-examination he was asked, "Did you know that your agents, Doblin & Rosenthal, were in the business of buying bankrupts' stocks, for the purpose of cheating their creditors?" In excluding this question there was error. If an affirmative answer had been given, it would have set his direct testimony in a new light. If Doblin & Rosenthal were

months carlier. For reasons already stated, therefore, no mere declarations as to past transactions made by him before the court of insolvency, in or after June, 1895, would be admissible against the plaintiff, even if both had been engaged in a previous conspiracy to defraud his creditors. Hearsay does not change its nature by being communicated to a court of justice. But that he occupied in that month the status of an insolvent debtor, under the laws of his state, and before its courts, was a fact which bore directly upon the defense set up. If, at the time of the sale in controversy, he intended a fraud upon his creditors, one way to effect his purpose would be to conceal or dispose of the proceeds, and then take an early opportunity to get rid of his obligations, by applying for a discharge in insolvency. His petition in insolvency was a step in that direction. It is unimportant whether the statements which it contained, or those of the schedules by which it was supported, were true or not, or whether, under the statute of the United States and the laws of Massachusetts, they were to be accepted in our courts as prima facie true. They were a part of the record of the cause. They were statements of a kind which it was necessary to make in order to support the jurisdiction of the court to proceed to grant a discharge; and the fact that Clark, Hutchinson & Co. were included in the schedule of creditors, without regard to the question whether they were in fact among his creditors or not, tended to identify "Lewis Harris," of Boston, the insolvent debtor, with "Louis Harris," of Boston, the plaintiff's vendor. This transcript should therefore have been received in evidence.

There is no ground for the remaining reasons of appeal, and the rulings complained of are so obviously correct that no discussion of them is required. There is error, and a new trial is ordered. The other judges concurred.

BORLEY v. McDONALD.
(Supreme Court of Vermont. Franklin.
Jan. Term, 1897.)

CONTRACT OF EMPLOYMENT-BREACH-LIQUIDATED

DAMAGES.

1. Provision in an agreement of employment that the employé will not for a year after conclusion of his services, directly or indirectly, solicit any insurance that shall at that time be held by the employer from any party, is violated by his entering into a partnership engaged in a business in competition with the employer's, and by his partners during the year soliciting and obtaining insurance from parties insured with the employer, and known by the partners to be so insured.

2. Such provision being clear and explicit, evidence that the employer understood that the employé has a right to represent any insurance company, and to solicit any insurance not held by the employer when the employé left his employment, and to solicit any additional insurance of parties holding insurance with the employer, is not admissible.

3. Provision in a contract of employment by an insurance agent that if the employé shall, within

a year from termination of his employme licit any insurance that shall at that ti held by the employer from any party, he sh feit and pay to the employer $500, as lig damages, will be sustained as a provision for q uidated damages.

Exceptions from Franklin county court; Ross, Chief Judge.

Assumpsit by Isaac S. Borley against James McDonald. Heard on report of referee and exceptions thereto. Exceptions overruled, and judgment for plaintiff for $500, as liquidated damages, with interest from date of writ. Defendant excepts. Affirmed.

Wilson & Hall, for plaintiff. Farrington & Post, for defendant.

TYLER, J. It appears by the referee's report that the plaintiff had a large, well-established, and profitable fire, life, and accident insurance business in St. Albans, representing 23 or more companies; that in the spring of 1888 the defendant entered his employment as a clerk in his insurance office; and that on October 28, 1889, while he was so employed, the parties entered into the following written contract with each other: "In consideration of the agreement of the said McDonald hereinafter contained, said Borley agrees to employ him, the said Mcdonald, in his insurance business for the term of one year from the 21st day of October, 1889, unless this contract is sooner determined by its terms or by agreement, at and for the sum of not less than fifty dollars per month, payable at the end of each and every month. And the said McDonald agrees for himself, his heirs and assigns, that, in consideration of said salary of not less than fifty dollars a month, he will devote his time and energies to the insurance business of said Borley, eight hours each day, in such part of said insurance business as said Borley shall direct; and that, in case of the determination of this agreement by its terms. by limitation, or for any cause, he will not, in the town of St. Albans, directly or indirectly, for the period of one year from the conclusion of service under the contract, solicit any insurance that shall at that time be held by said Borley from any party or parties whatsoever; and that he will not do any act or thing in advantage of the said Borley by reason of information gained in his services; and, in case said McDonald shall violate this provision of this agreement, he hereby agrees for himself, his heirs, executors, administrators, and assigns, to forfeit and pay to said Borley the sum of five hundred dollars as liquidated damages, to be recovered in an action of assumpsit; this contract to control as to the amount of damages. It is further stipulated and agreed that, in case either party shall be dissatisfied with the other, this contract may be determined, so far as service and compensation are concerned, by giving notice to the other