The Montgomery advertiser., 1901-10-12

THE H. B. CHAPLIN co. ct al, V.
 MUSCOGEE MANUFACTURING co.
 ct al
 Bill in equity to have attachments de-
 clared collusive and fraudulent and
 constituting a general assignment
 Appeal from the Chancery Court of
 Montgomery.
 1. Appeal; review of decree of chan cellor-Under the provisions of the statute Code, Sec. 3S26), where an appeal is taken from final decree of the chan cellor, no weight shall be given to the decision of the chancellor upon the facts, but the Supreme Court is required to weigh the evidence and render such judg- ment as. in their opinion, is deemed right and best.
 2 Bill to set aside collusive attach ments; burden of proof.-Where an insol- vent debtor, after the levy of attachments by certain of his creditors upon his stock of goods, makes a deed of assignment for the benefit of his creditors, upon bill filed by other creditors of such debtor which ayers that said attachments were collusive, fraudulent and void that they and the deed of assignment were parts of one and the same transaction, and which prays that said writs of attachment be treated and declared as part of said general assignment and constituting
  signment for the equal benefit of the cre- dftors of said debtor, and that the prefer ence attempted to be created by the suing out of the collusive and fraudulent attachments be declared null and void. the burden rests upon the compartments to show that said attachments were the result of fraudulent collision between the plaintiffs in attachment and the common debtor; and upon such bill there can never be any shifting Of the buroen or proof to the respondent.
 3. Same; rights of attaching creditor; not affected by the fact that the debtor waited the levy of the attachment.-In such a case, the fact that the insolvent debtor had reason to believe, or even knew, that the attaching creditors were going to sue out writS of attachment, and delayed the execution of the deed or as- signment until said writs of attachment had been levied, does not affect the priority created by said creditors, under their attachments. unless they fraudu- lently colluded with the debtor ana had some agreement, understanding or ar rangement with him, by which sucn priority was to be effected.
 4. Same; fact that attaching creators aided debtor to again start in business does not authorize inference or colIuSloh and fraud.-In such case. the .tact that subsequent to the levy of the attachment the attaching creditors participated Tn a scheme to again start the debtor up Tn business, and aided him to purchase the attached property with view of again going into trade with 1t, does not, of it. self, invalidate such attachments, nor does 1t afford such a sufficient basis Tor an inference of collision in suing out the attachments, as will prevail against the direct testimony of the attaching creditors and officers of the defendant In attachment, that there was no collusion between said creditors and oeDtor Tn suing out said attachments.
 5. Failure to introduce witness; aces not justify unfavorable inference. ce.-Where a bill is filed by creditors of an insoivent debtor corporation, to haze attachments previously sued out by their creators de- clared null and void, and to constitute a part of a deed of general assignment made by said debtor. upon the ground that said attachments were coiIuslVe. fraudulent and cold. upon the ground that said attachments were coLusive' fraudulent and void. the fact that the respondents failed to introduce ana ex- anime the president of the debtor cor poration and it's attorney, does not 1usuty an unfavora ble inference against the at- taching creditors, where 1t appears that such witnesses were equally accesslple 10 the complaint and the defendants m sald case.
 Reversed and rendered.
 Opinion by Mcclellan, c. J'
 GEORGIA HOME INSURANCE CO "
 ALLEN.
 Action upon a policy of fire insurance
 Appeal from the Circuit Court or
 Limestone.
 1. Action upon fire insurance Poncs' feiture.--In an action upon poncy oi fire insurance. where the defendant ts com 9dn pany assigns one specific ground or TOT. feiture and the validity of the poilcy or insurance sued upon is denied upon that ground alone. ali other grounds or Tor. feiture or breaches of the condiuonS or the policy are waived. A.. .., tute waivervsf breach.-If an insurance company, after knowledge Of the breach of condition contained in the e, policy issue by it, enters into hesoiSe'ons Ut tr,ns.a.;o,.- .....h tho assured, Dy which