ing, a common purpose? And, in this connection, may we not inquire how it happened that Spitzer, whose business habitation was Mobile, arrived in Decatur that morning?

In giving his testimony in this case, Herbert Cartwright was interrogated as to his motive in purchasing the claims from the bank, from Mrs. Pinkus, the mother of I. Pinkus, and from Spitzer. His answer was: "By purchasing an amount of claims equal to what I thought the stock of Pinkus & Co. would bring under an attachment sale, which amount I knew would be less than the actual cost of said goods, and therein I thought would be a good opportunity for speculation.

*

* My object in buying the claims of Mrs. Hannah Pinkus, Abe Spitzer, and the First National Bank of Decatur was to get possession of the stock of goods of I. Pinkus & Co., as I had an idea of going into business for myself. I believed this was a good opportunity, and thought that I could make a thousand or so dollars by buying this stock under an attachment sale." M. T. Cartwright, father of Herbert, gives substantially the same reason the son gave for buying the additional claims against Pinkus. And Spitzer testified that while Herbert Cartwright was negotiating for the purchase of his claim, in reply to the inquiry why he wished to purchase, he replied: "He wanted to buy up as many claims against Pinkus as possible, so that when his stock of goods was sold under attachment, he could buy at reduced prices." Is it not extraordinary, if Herbert Cartwright and Pinkus were dealing with each other at arm's length, as a creditor exacting payment and a debtor imploring forbearance, that this statement should have been made by Herbert Cartwright to Spitzer? When the goods were sold under the order of court, Herbert Cartwright became the purchaser of the stock of goods, sold in gross, at 40 per cent. discount from their original cost prices. In other words, he paid 60 cents on the dollar of the sum Pinkus had paid or promised the wholesale merchants for them. They cost Herbert something over $8,000, as I understand the testimony, but the goods which had been previously purchased by M. T. Cartwright appear to have been included in this sale. Herbert Cartwright, the purchaser, paid the purchase price, which has ever since remained in the court, subject to the final disposition of this cause. If I am mistaken in the amount thus paid into the registry of the court in the purchase of the goods, there can be no question that the sum, independent of the proceeds of the goods claimed to have been purchased from Pinkus by M. T. Cartwright, exceeded materially the sum of $6,000. This large sum, according to the contention of appellant, was paid into court by him when he purchased the goods, and has lain there ever since. In addition, be shows by his own testimony that he paid the $1,400 to the First National Bank when it

matured, and in September, 1890, settled with Mrs. Pinkus, the mother, paying her then $2,000, the residue being remitted in consideration of payment before maturity. He also paid Spitzer $500 on his claim. Those sums added together make a gross sum of ten to twelve thousand dollars paid out by Herbert Cartwright, and of the use of which he has been entirely deprived during all these years, while it is not shown that he has had any profitable or available use of his own means. His original claim of $2,900 against Pinkus has been locked up in the litigation, and it is thus shown that he has had no use or control of it. From what source has he been able to meet those heavy drafts? True, he testifies that he borrowed the most of the money with which he paid for the goods which are the subject of contention in this suit; but borrowed money debts, like other debts, will mature, and, as a rule, must be provided for. We think it clear that the debt ($1,400) to the First National Bank is sufficiently proved to be bona fide. The proof is also satisfactory that Pinkus had owed his mother about the sum claimed to have been due her. She had to be supported, however, and the conjecture would be reasonable that she had found it necessary to draw somewhat on that fund. But I do not make this a special ground for an opinion. I do, however, invite special attention to the claim of Spitzer. The proof of the bona fides of that debt is far from satisfactory; and the fact that he had not, when his testimony was taken, collected exceeding $500 of the $2,700 he claims to have sold to Herbert Cartwright, is itself a suspicious circumstance. He owed no courtesy or forbearance to Herbert, if, as contended for, he simply sold his claim as a means of saving it from loss; selling it, as.he did, to the man who was taking steps to bring Pinkus, his friend and prospective brother-in-law, to bankruptcy and ruin.

Let us consider another question, as shown in the testimony in this record. Herbert Cartwright, in purchasing other claims against Pinkus, assumed the burden and risk of proving those claims to be just. This, on the plain principle that, dealing with a debtor in failing circumstances,-known to be in failing circumstances,-the law permitted him to use all lawful means to secure the collection of his own claim, even though in doing so he deprived all other creditors of the means of collecting their demands. But his authority extended no further. He must simply collect his own claim, depriving the other creditors of no greater amount of the assets of their common debtor than was reasonably necessary for such purpose. He must not secure any benefit to the debtor, and must not secure to himself anything in excess of the sum due him. If he go beyond this permissible boundary, he perpetrates a fraud. And we may take another step. The facts of this case are so extraordinary, so en

tirely without the routine of ordinary business transactions, that fuller and more satisfactory proof is required to uphold such transaction. Borland v. Mayo, 8 Ala. 104; Lehman v. Kelly, 68 Ala. 192; Lipscomb v. McClellan, 72 Ala. 151; Barnard v. Davis, 54 Ala. 565; Hubbard v. Allen, 59 Ala. 283; Hamilton v. Blackman, 60 Ala. 545; Harrell v. Mitchell, 61 Ala. 270; Thames v. Rembert, 63 Ala. 561; Donegan v. Davis, 66 Ala. 362; Tryon v. Flournoy, 80 Ala. 321; Gordon v. McIlwain, 82 Ala. 247, 2 South. 671; Shelby v. Tardy, 84 Ala. 327, 4 South. 276; Lehman v. Greenhut, 88 Ala. 478, 7 South. 299; Cartwright v. Bamberger, (Ala.) S South. 264.

I trust I will be pardoned for grouping what appear to me to be uncontroverted, salient facts of this case. A young man, just six months past the period of his majority, is the owner of $2,900-no more of available assets. He claims to own other property worth something less than $2,000, but he furnishes neither proof nor presumption that his other property is in such shape as to be available for commercial purposes. His $2,900 is not in his possession, but is due to him from his employer, who is a merchant engaged in trade. Becoming alarmed for the safety of this sum of $2,900 due from his employer, on Monday, March 3, 1890, after breakfast time on that day, as I think the circumstances show, he approaches his employer with a view of collecting or securing his claim. Is informed by Pinkus, the debtor, that the latter owes his own mother twentytwo, or twenty-three hundred dollars, and to Spitzer, his friend, and prospective brotherin-law, twenty-seven hundred dollars, which he desires to pay; also, that he owes the bank fourteen hundred dollars, which he wishes to pay also.. That through Pinkus, as mediator, he procures himself to be brought into communication with the mother and future brother-in-law of the latter, and purchases their claims, apparently without evidence of their bona fides, for their face value, promised to be paid without condition at the end of 12 months. That these claims are readily sold to him, (Herbert Cartwright,) with knowledge that the latter's object in making the purchase was to make them the foundation for an attachment against Pinkus, the son of the one and the friend of the other, by which the latter's goods were to be seized and sold at a sacrifice, and his business broken up. That, with the same end in view, he (Herbert Cartwright) purchased, at its face value, the claim of $1,400 due from Pinkus to the bank, and secured its unconditional payment to the bank in four months. That, securing the control of these claims, he (Herbert Cartwright) sued out an attachment, charging fraud against Pinkus, and had his entire stock of merchandise seized thereunder. And, according to the testimony of Herbert Cartwright and his witnesses, all this was conceived, determined upon, and ex

ecuted within little, if any, more than four hours. There are other strange features of this transaction which should not be overlooked. Friedman is shown to have been the friend of Pinkus. He permitted the latter to secrete some of his goods in his (Friedman's) business house. Yet he became one of the sureties of Herbert Cartwright on his bond for the attachment under which the goods of Pinkus were seized. Was not this a strange spectacle? Mother and prospective brotherin-law agreeing at once to sell, and actually selling, without delay or reflection, as it would seem, claims against the son and future brother-in-law amounting to about $5,000, with the knowledge that an attachment was to be immediately issued for their collection, whereby the son and brother-in-law would be broken up; and the trusted, if not the best, friend of the latter contributing to the result by becoming surety on the attachment bond. Were not these extraordinary attendants of an attachment for the enforcement of a debt, and all the more extraordinary, when it is clearly proven that the debtor himself aided in having the transfer of the claims made which led to the attachment? Another circumstance should be noted. The notes, $1,400, which Herbert Cartwright purchased from the bank, were what are known as "waive notes." They expressed on their face that the debtor waived his exemptions as to personalty. The personal exemption, under our statute, is $1,000 in value, and a waiver thus expressed operates as a bar to such exemption, so far as that debt is concerned. Yet, although this litigation has been pending for more than three years, and although the goods attached did not sell for enough to pay what is claimed by Herbert Cartwright to be due him, he has taken no step to bar or cut off Pinkus' exemptions of personal property. Nor must another important inquiry be overlooked. As I have shown, Herbert Cartwright's available effects-$2,900-were locked up in this litigation. So has the money for which the goods were sold under the attachment been kept in the registry of the court. The money paid to the bank, to Mrs. Pinkus, and to Spitzer was $3,900. In the purchase of the goods, as the record shows, Herbert Cartwright had to pay an additional six or eight thousand dollars. Of none of this has he since had the use. In what way has he been able to command and control this large sum of money? The record does not satisfactorily inform us. It is manifest that the proof falls far short of showing that the father did or could supply the requisite funds. I have grouped these facts because they show how utterly improbable it is that this was a simple, bona fide attempt by a bona fide creditor to collect a debt due him. They tend very strongly to show-First, that there was collusion, and this generates a strong suspicion that Pinkus was to be benefited by the collection of the alleged debts to his mother and

to Spitzer; second, that, by these extraordinary proceedings, Herbert Cartwright attempted to collect, not alone the debt alleged to be due him, but a large profit beyond that, which must necessarily be at the expense of other creditors; third, that this transaction is surrounded by so much that is unusual-so much that is suspicious-that it should require a strong, clear showing-much more convincing than is found in this record-to uphold it against the assault of creditors.

The city court, after what appears to have been a very careful consideration of the testimony, employed the following language, which I consider eminently just and proper: "The complainants having assailed the attachment for fraud, and having shown to the satisfaction of the court that it was sued out in collusion with Isaac Pinkus & Co., and having proven the existence of their debt against said Isaac Pinkus & Co. at the time of the attachment, the onus is on defendant, Herbert Cartwright, to establish the bona fides of the several debts which constitute the consideration of his attachment; and complainants having further alleged and shown to the court's satisfaction that said defendant was the chief clerk of said Isaac Pinkus & Co.. and as such intrusted with the general supervision of the business, especially in the absence of Isaac Pinkus, and a large part of his alleged debt having been purchased from the mother and contemplated brother-in-law of said Isaac Pinkus, exciting just suspicion of the fairness of the transaction, he is required by the law to produce clearer and more convincing proof of the good faith of the transaction and of the adequate and valuable consideration than if this relationship did not exist. All the facts and circumstances taken together show a collusive attachment, and a conspiracy to defraud the creditors of Isaac Pinkus & Co. A collusive attachment sued out for fraudulent purposes stands upon the same footing as a fraudulent conveyance, and the defendant's measure of proof must come up to the standard the law requires in such cases. The court has given this case much careful and patient study, and, considering all the legal evidence submitted, the court is forced to the final conclusion that the attachment which is here sought to be set aside was the result or outgrowth of the unlawful combination charged in the bill; that there was no real ground for an attachment, as between Herbert Cartwright and Isaac Pinkus; and that Isaac Pinkus knew of and connived at the attachment, and that it was sued out with the intent to use it to affect and prejudice the pre-existing rights of the bona fide creditors of said Isaac Pinkus & Co.; that the bona fides of none of the claims going to make up the total debt of Herbert Cartwright, upon which the attachment was based, (except that of First National Bank) has been shown by the measure of proof required by law; and, further, that in the purchase of the claims of Hannah Pinkus and

Abe Spitzer the said Herbert Cartwright went 'beyond the permissible purpose of securing his own claim,' his declared purpose being to get more than was necessary for his own indemnification. He thus 'put himself outside of the pale of the law's protection from the just demands of other creditors.' His whole and only purpose, evidently, was not the payment of his own debt; he went beyond the boundary of the reward and protection which the law gives the vigilant creditor." This had the effect to hinder or delay other creditors, or to impair their rights. The circumstances attending the attachment were so unusual that the conclusion is irresistible that Pinkus had something to do with it, and that his purpose was to hinder or defraud his creditors; and the circumstances attending the purchase by Cartwright of the claims against Pinkus were so unusual that they show a willingness on his part to aid, and that he did aid, said Pinkus in defeating any efforts that were made, or might have been made, by other creditors to obtain satisfaction of their demands. My opinion is that the decree of the city court ought to be af firmed.

HAGLER v. JONES et al.

(Supreme Court of Alabama. July 31, 1893.) TEMPORARY INJUNCTION-WHEN DISSOLVED.

The

In ejectment, the defenses were that the liabilities which caused the deed to plaintiff to be executed were so stale that their payment must be presumed; and that, when the grantor executed such deed, he was non compos. supreme court reversed a judgment for plaintiff on a point not necessarily decisive of the final result. In a suit to enjoin the action of ejectment, defendant, in a sworn answer, fully denied that his grantor was mentally unsound. Held, that a temporary injunction should have been dissolved on the filing of such answer.

Appeal from chancery court, Tuscaloosa county; Thomas Cobbs, Chancellor.

Action by J. W. Jones and others against E. J. Hagler to enjoin the prosecution of an action of ejectment by defendant against plaintiffs, in which a temporary injunction was issued. From an order denying defendant's motion to dissolve the temporary injunction on the filing of his answer, defendant appeals. Reversed and rendered.

Foster & Oliver, for appellant. J. J. Mayfield, for appellees.

STONE, C. J. Motion was made in the chancery court to dissolve the injunction granted in this case on the alleged ground that the bill is without equity. The gist of this motion may be thus stated: One of the complainants in the bill, John W. Jones, Sr., is in the possession of the lands, and Hagler has an action of ejectment pending for their recovery. That suit has been once tried, resulting in a verdict and judgment for the plaintiff, Hagler. On appeal to this court that judgment was reversed, on a point not

necessarily decisive of its final result. Jones v. Hagler, 10 South. 345. That action of ejectment is still pending in the circuit court of Tuscaloosa county, and the purpose of the present bill is to have that suit enjoined, and the deed by which it is sought to be maintained declared inoperative, on two grounds: First, that the conveyance in trust, under which it, the deed to Hagler, purports to have been executed, and the liability which caused its execution, were and are, each of them, so stale as that their payment and adjustment must be presumed; and, second, when McGuire, the trustee, executed the conveyance to Hagler, he was non compos mentis, and incapable of executing a contract that is legally binding. Now, each of these is a legal, as contradistinguished from an equitable, defense. Yet, if Lehman v. Shook, 69 Ala. 486, be adhered to and followed, that does not preclude the maintenance of the present bill. The charge is that McGuire was mentally incapable of making a valid deed. The law presumes that all persons who have attained to lawful age are capable of making a binding contract, and, if the contrary be asserted, the burden of proof is on him who makes the assertion. 1 Whart. Ev. § 372; 1 Tayl. Ev. § 370; 1 Greenl. Ev. § 80. The sworn answer of Hagler, the defendant, is very full, and emphatically denies the charge that when McGuire executed the deed to him he was mentally unsound. This is, in effect, a denial of all equity asserted in the bill of complainants. The temporary injunction ought to have been dissolved on the sworn denials in the answer. The decree of the chancellor is reversed, and this court, proceeding to render the decree the chancellor should have rendered, doth order and decree that the injunction issued in this cause be, and the same is hereby, dissolved. Reversed and rendered.

PULLIAM v. SCHIMPF. (Supreme Court of Alabama.

Nov. 7, 1893.) PARTNERSHIP-WHAT CONSTITUTES.

A contract under which defendant is to furnish a house for carrying on a shooting gallery, and plaintiff to fit it up and furnish the necessary implements, and to personally conduct the business, net profits to be equally divided between them, and the business to continue as long as it is profitable, does not make them partners inter sese.

Appeal from circuit court, Mobile county; James T. Jones, Judge.

Action by Jarrett Pulliam against Charles Schimpf to recover damages for breach of contract. There was judgment for defendant, and plaintiff appeals. Reversed.

The agreement, the breach of which is the foundation of this suit, is thus alleged in the complaint: "On or about February 24, 1892, plaintiff and defendant entered into an agreement between themselves to establish and run a shooting gallery in a certain

building on Royal street, in the city of Mobile, which building was then and there in possession of said defendant, and said business to be managed and conducted by plaintiff, under which agreement the said plaintiff was to fix up the room and necessary partitions in a manner suitable for a shooting gallery, and to furnish the rifles and targets and other necessary apparatus, and the defendant was to furnish the building, and the net profits arising from said business were to be divided between the said plaintiff and defendant." The plaintiff further alleged that although the agreement provided that the business was to continue as long as the same was profitable, and that although it was being run so that the net profits were about $60 per month for each,-the plaintiff and the defendant, the defendant ousted the plaintiff from the possession of the said room, and locked the door thereof, and refused to permit the plaintiff to enter or continue his business in said room. The defendant demurred to the complaint on the following grounds: (1) Because it is shown that the plaintiff and the defendant were partners under an agreement for an indefinite period of time, and that the defendant therefore had the right to dissolve the said partnership without his knowledge, and without liability to plaintiff for any damages; (2) because plaintiff's remedy was by a bill in chancery to enjoin the defendant from dissolving the partnership; (3) because the complaint shows that the building in which the copartnership business was conducted was the property of the defendant, and that upon dissolving the copartnership the defendant had the right to resume the exclusive possession of said building. On the hearing of these demurrers the court sustained the first and third grounds, and overruled the second; and, the plaintiff refusing to plead further, judgment was rendered for the defendant.

Pillans, Torrey & Hanaw, for appellant. Faith & Ervin, for appellee.

MCCLELLAN, J. As we interpret the facts laid in the complaint, they do not constitute a partnership between the plaintiff and the defendant. The latter was to furnish a house in which the business of a shooting gallery was to be carried on, and the former was to arrange and fit up the house so as to adapt it to the uses of that business; to supply the necessary implements, as rifles, targets, and the like, for carrying on the business; and to personally conduct the business. The net profits were to be equally divided between them, and the business was to continue so long as it was profitable or paid expenses. There was, on these facts, a community of profits, a mutual right to share equally in the net profits,but no community of risks. The defendant was not to bear any of the losses which might be incurred in the business, and the

portion of net profits going to the defendant was purely a compensation to him for the use of his house,-the rent of the building in which the business was carried on. This we find to be the intent and meaning of the contract, and the authorities are agreed that such a contract is not one of partnership inter sese. Fail v. McRee, 36 Ala. 61; Robinson v. Bullock, 58 Ala. 618; Mayrant v. Marston, 67 Ala. 453; Humes v. O'Bryan, 74 Ala. 64; Nelms v. McGraw, 93 Ala. 245, 9 South. 719. The demurrers to the complaint, proceeding on the theory that the facts alleged showed that the parties were partners, should have been overruled. Reversed and remanded.

KENT et al. v. MANSEL et al.' (Supreme Court of Alabama. May 18, 1893.) ADMINISTRATORS-SALE OF REALTY TO PAY DEBTS -COLLATERAL ATTACK.

A sale of an intestate's realty to pay debts, under Code, § 2111, which requires the applicant for such sale to show the insufficiency of the personalty by deposition of disinterested witnesses, cannot be held void, on collateral attack, on mere proof that one of the two witnesses then examined was of the same name as the administrator applying for the sale, and the other was a creditor of the estate; it not appearing that the order of sale did not contain all findings needful to its validity, that of proper proof included.

Appeal from circuit court, Montgomery county; John P. Hubbard, Judge.

Ejectment by A. H. Kent and others against Elizabeth Mansel and others. Judgment for defendants. Plaintiffs appeal. Reversed.

The plaintiffs sue as the sole heirs at law of Randolph Kent, who died intestate; and the defendants to the suit are the children and grandchildren of William M. Mansel and Elizabeth Mansel, his wife, both of whom were dead at the time of bringing of the suit.

The land sued for was the land which, in the lifetime of Elizabeth Mansel, was set apart to her as her dower interest in the lands owned by William M. Mansel at the time of his death. This cause was tried upon an agreed statement of facts set out in the record, from which it appears: That William M. Mansel, a resident of Montgomery county, died intestate on the 31st May, 1875, being the owner of 360 acres of land in said county, which is described in said statement of facts.. That on the 4th October, 1875, William T. Hatchett was appointed administrator of his estate by the probate court of Montgomery county. That on the 30th October, 1876, said Hatchett, as administrator, filed a petition in the probate court of Montgomery county to sell said lands to pay the debts of said estate. That the allegations of said petition, important to be considered, are "that the personal property of said estate is insufficient for the payment of

the debts thereof, and that, therefore, it is necessary, and will be to the interest of said estate, to sell the lands hereinafter named for the payment of the debts of said estate;" and certain minors, whose names are given, were interested in said estate. That on the trial of said petition the evidence of two witnesses one by the name of William T.. Hatchett, and the other, H. W. Clark-was taken by deposition, as in chancery cases, to show the necessity for the sale. That it does not appear whether said witness William T. Hatchett is the same William T. Hatchett who was the administrator of the estate, but it does appear, from the deposition of said witness H. W. Clark, that he was a creditor of the estate. He swore: "I am a creditor to the amount of $250, with interest from the 17th day of April, 1875, balance due for the purchase money of land." But he did not know who else were creditors of said estate. That said witness William T. Hatchett swore that said estate owed debts to the amount of about $300. That on the 25th January, 1877, the probate court of Montgomery county, on this petition and evidence, rendered a decree ordering the lands of the estate described in the petition to be sold for the payment of its debts, and a sale was accordingly made by the administrator, at which H. W. Clark became the purchaser at the price of $750, which sale was reported to and confirmed by said probate court, and a deed of conveyance was ordered to be made to said purchaser; and the administrator, accordingly, on the 8th of November, 1878, by deed duly executed, conveyed to said Clark all the "claim, right, title, and interest of the said Wm. M. Mansel, deceased," in and to said lands. The order of sale made by the probate court is not set out in the record. that appears on that subject is "that on the 25th day of January, 1887, the probate court of Montgomery county rendered a decree ordering said lands to be sold for the payment of the debts of said estate of William M. Mansel, deceased." It further appears that on the 11th September, 1878, the lands sued for in this action, which are a part of the lands which were sold by said administrator to pay debts, were duly set apart, by the order and decree of the probate court of Montgomery county, to Elizabeth Mansel, the widow of the intestate, as her dower, and she went into the possession of them, and that she and those claiming under her have had possession of said dower lands ever since; that said widow, about the year 1883, moved to Texas, where she died on the 17th of October, 1888. It also further appears that H. W. Clark and wife, on the 12th of September, 1881, conveyed said lands purchased by him at said administrator's sale (which included these dower lands now sued for) to Randolph Kent; but, as to them, he sold only the reversionary interest, after the termination of the widow's dower interest in them; that said Kent was put in the pos

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