Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1903-04-10

| representative capacity a demand due
to him in his own right. Such a set of
the statute r. S. Chap. So, Sec So, does
not permit.
Charles w. Pierce, at the time of the
| service of the writ, July 10, 1891, had no
| property in his hands belonging to the
| defendant. but he filed a claim to the
| fund disclosed by the administrator as
| trustee under an assignment from the
defendant, dated July 4, 1891. and re-
corded in the clerks office of the town
of Milo
After hearing on the disclosures of
the trustees and on this claim, the pre-
siding justice passed upon the evidence
and ruled as follows: Trustees dis
charged with costs; funds in trustees
hands to the amount of $155, if so much.
adjudged to claimant, Charles w.
Pierce And the case comes before
this court on the plaintiffs exception
to this ruling.
The plaintiff claims that the assignment
is void by reason of fraud and informal
lty. The evidence proves that on the date
of the assignment there was due TO the
assignee from the assignor s155 So but the
assignment was given to secure this
amount and future advancements. Small
a1dvancements had been made up to the
tiff attachment. The instrument of as
slgnment in favor of the claimant was
procured by the .assignor himself under
circumstances indicating his Intention to
delay the plaintiff in the collection of his
debt; but it is not shown that the claim
ant acted collusively with the defendan Mt
ana his rights are not thus prejudiced
The. assignment was never actually deliv-
cred to the assignee. but was shown him
by the aSSignor before it was signed and
at his request it was recorded. 1t appears
that the claimant had previously request
ed an assignment as security: and we
think the transaction between the de-
PENDANT and the claimant satisfied the re-
quirementS of an equitable assignment of
the fund in the hands of the trustee.
But there is another phase of the case
which controls the decision, Although
Indebtedness and future advancements,
and was for that purpose valid as be-
tween the parties. it was not security
against attaching creditors for advance
ments made by the assignee after he had
notice of the attachment. The security
for credits thereafter given by him was
subject to the attachment and might be
extinguished by the payment of the in-I
debtedness secured. BY the service of the
trustee writ upon him the claimant had
notice of the attachment of the fund in
the hands of the administrator as trustee.
There was then due him S69.75. There
does not appear to have been any adjust
ment of accounts between the assignee
and aSSignor. and their transaction con-
tinue and items of debt and credit were
the subject OF general account up to the
time of the hearing; and it is shown by
that on the sixth day of November, 1901.
by credits in excess of debts his claim
which had been secured by the assignment
had been overpaid. The plaintiffs at
tachment thercupon had precedence over
the assignment as security for subsequent
OF the assignee and defeat |
ed his claim to the fund.
Exceptions sustained.
Charles A. Howe, administrator as truS-
tee, is charged for $104.19. less his costs; |
Charles w. Pierce is discharged as trustee |
with costs; and judgment is rendered |
against him as claimant of the funds in
the trustees hands.
Cumberland case Asa F. York VS. An
gustuS Fl. CleaveS ct al. ReScripe by |
Spear, j.
This was an action on the case to re
cover damages for negligence, in burning !
the plaintiffs corn factory. The verdict I
was for the defendants.
Two important questions of fact are |
presented, first, whether the fire that |
by sparks and brands from
the defendants saw mill, and second if |
it was. were the defendants negligent in |
permitting the sparks to escape?
By the process of elimina ton, the evil |
dence in this case all points to but one
conclusion, that the spark or cinder which |
set fire to the plaintiffs factory was COM
municated from the defendants mill.
AS to the second proposition. the evil
dence shows that the plaintiffs boiler,
HueS and smoke stack were so constructed |
that they were well calculated and liable;
in a strong wind, to carry sparks ard
rinderS for a considerable distance
through the air, and that person of or
binary care and prudence, under all the
such result.
Motion sustained. New trial granted.