Birmingham age-herald., 1895-04-30

of the debts thereof, and that the col lection thereof and the payment by said bank of the proceeds to or on account Of the individual corporators was a misap- plication of said funds for which said bank, which Gas your orators charge) knew the nsolvent condition of said cor poration as well as the said individual corporators was and is liable to the cred itors of said corporation" It it further shown that on September 4, 1889. said corporation appeared in court and con fessed judgment in favor of said bank for $1075 on complaint then filed, and immediately after the confession and reg istration of this judgment, the JeWelry company executed general assignment to R. D. Johnston for the benefit of it's creditors; and it is charged that said copfession of judgment and assignment were parts of ono and the same transac- tion and should be so decreed and ad- ministered; and that said assignee took possession of the property of said corpor- ation, converted the same into money, and out of such proceeds paid said judg- ment to the bank. and still has small sum in his hands.
 The theory upon which eomplainants seek relief is thus set forth in the bill: "Complainants are advised that the en- tire assets of said corporation constitute trust fund for creditors, and that all persons who in any wise knowingly par ticipate in the unlawful appropriation Of said trust fund or any part thereof will be required in equity to restore the same. That the subscribers to said capital stock will be compelled to pay the differences between their respective subscriptions and the actual. reasonable value or the property transferred by them in pre- tended payment thereof. And that such subscribers as have made no payment or transfer of property will be required 1uii payment to make. That said confession of judgment will be held part and par
 nd e. Alabama National bank will be required to pay the sum received by it in payment thereof as aforesaid for the benefit of creditors, and that said bank will be further required to account for the pro ceeds of the insurance policies received by it as aforesaid, and to restore so much thereof as said bank paid to-the individ- uals composing said corporation or for their use"
 The prayer is that q receiver of the property and effects of the O'Bear Jew elry company be appointed and author ized to receive the moneys and effects thereof to which it may be decreed en- titled under the allegations of the bill; that said subscribers to the capital stock of said corporation be required to pay to the court the amounts which they re- spectively subscribed, less the actual reasonable value of such property as they transferred to said corporation; that said Alabama National bank be required to pay into court or to the receiver to be appointed the amount received by 1t on account of said judgment, as also the sum received by it as the proceeds of the poli- cics of insurance over and above the debt owing it, and that the said assignee, R. D. Johnston, be required to file in court his accounts as such assignee and to pay into court or to the receiver all moneys in his hands and to turn over all property and effects of said corporation; and, finally, that all the assets thus brought together be administered for the equal benefit of the creditors of said corpora tion.
 The Alabama National bank demurred to the bill, and among other grounds, assigned the following
 Section 1. There is a misjoinder of par ties defendant to said bill of complaint in this--that this defendant alleged to be q preferred creditor is improperly joined as defendant with stockholders of the OBear Jewelry company, who are charged with not having legally paid up their subscriptions to the capital stock of the O'Bear Jewelry company.
 Sec. 2. The said bill, of complaint is multifarious, in that complainants seek in the same suit to have an accounting of the trust created by the alleged deed of assignment made by the O'Bear Jew elry company. and to collect unpaid sub l scriptions of the shareholders of the O'Bear Jewelry company alleged to be fraudulently withheld.
 Sec 8. The said bill of complaint is multifarlous, in that it joins with the claims against the shareholders of the O'Bear Jewelry company for unpaid sub- scriptions, claims against this defendant for money alleged to have been improp- erly paid to this defendant to satisfy a judgment confessed, alleged to be part of a general assignment made to R. D. Johnston for the creditors of said O'Bear Jewelry company, and money alleged to have been fraudulently received from insurance and fraudulently paid to the individual stockholders of the O'Bear Jewelry company.
 Sec 4. The said bill of complaint is multifarious, in that it seeks to collect unpaid subscriptions to the capital stock of the O'Bear Jewelry company, and also 10 settle trust, and to have this de- fendant account for money fraudulently paid to the individual shareholders of the OBear Jewelry company.
 Sec o. The said bill of complaint is fur ther multifarious, in that it seeks set clement of a trust, and also to set aside a fraudulent disposition of the property of the O'I3ear Jewelry company.
 Sec. 2. This defendant demurs to sec tion 2S of said bill of complaint, for that it is therein alleged that the assets of said O'Bear Jewelry company consti- tuted a trust fund for the benefit of all creditors alike, when in law the O'Bear Jewelry. company could legally prefer creditor.
 And w. B. Copeland separately de- murred to the bill, assigning the follow ing, among other grounds:
 Section l. There is a misjoinder of par ties defendant to the said bill, said Copeland being made defendant with others for the result of transactions with which the said bill does not show he was connected or in any way responsible.
 Sec. g. The bill is multifarious as to him, because he is by the bill brought in to defend on various matters with a large portion of which the bill does not show he had any knowledge, participa-