no ground for the attachment, and you should so find by your verdict. If that sale was made, as above stated, in good faith to pay an honest debt, then the sale was not fraudulent, even though the sale of that stock in the store at 1245 South Broadway did operate to hinder or delay other creditors of the defendant in collecting their debts. In other words, gentlemen, a debtor has a right to prefer one creditor over another, even if he is insolvent; and if he does so in good faith, that is, if he pays one creditor to the exclusion of another, such preference is not a fraudulent act, no matter how it may affect his other creditors.

Now, on the other hand, if you believe from the evidence that the whole or a part of the debt claimed to be due from the defendant to Desberger, which figured as the consideration in the sale of the stock, was fictitious, and was known to be fictitious, that is, was not legally owing to Desberger at the time of the sale, then the conveyance was for that reason fraudulent, and you should so find. Or if you believe that the sale and conveyance of the stock at 1245 South Broadway was contrived by Abrahams and Desberger together, or that it was contrived by Abrahams alone, for the purpose of hindering and delaying or defrauding Abrahams' other creditors in the collection of their debts, or to put the property out of the reach of his other creditors, then the sale and conveyance was fraudulent, and you should so find, even though you may believe that at the time of the sale Abrahams was indebted to Desberger. In other words, gentlemen, a conveyance of property that is made by a debtor for the purpose, and with the intent, of hindering or delaying some of his creditors, is fraudulent, so far as the debtor is concerned, and will authorize an attachment against him, even though the debtor, by means of such conveyance, thereby pays some other creditor whom he justly owes.

From the directions which I have given you respecting the first and second grounds of attachment, it follows that the questions you will mainly have to consider and determine on this branch of the case areFirst. Whether the debt which figured as the consideration for the sale of the stock at 1245 South Broadway was a bona fide debt, that is, a debt justly due and owing by the defendant to Desberger, or was in whole or in part fictitious. Secondly. Was the defendant's motive in making that sale and conveyance an honest motive to liquidate a just debt, or a dishonest one to put his property beyond the reach of his other creditors, thereby hindering and delaying them?

Now, the third ground of attachment is that the debt sued for was fraudulently contracted by the defendant; and this branch of the case also merits your careful attention. Speaking generally, a debt may be said to have been fraudulently contracted for two reasons: First, when a debtor has induced his creditor to sell him goods and extend to him credit by means of false representations as to his financial condition, or as to his means and ability of paying for the same; and, secondly, when a debtor has bought goods or property of any kind on credit with a preconceived intention of getting the possession of the articles bought, and disposing of them, and not paying for the same at any time.

The court is of the opinion, and so instructs you, that there is no evidence in this case that will warrant you in finding that the debt sued for was fraudulently contracted in the mode first above pointed out; that is because of fraudulent representations made when the goods in question were bought. There is no evidence, in my judgment, to substantiate any such charge. But the court submits this question for your consideration as one that fairly arises under the evidence in the case, viz., whether, when defendant bought the bill of goods sued for in this case of the plaintiffs, he intended to pay for the goods. If you believe from all the evidences and circumstances in the case that, when defendant bought the bill in question of these plaintiffs, he did not intend to pay for the goods at any time thereafter, but did intend to get the goods into his possession, and sell them, and pocket the proceeds, or sell them to Desberger, and not to pay the plaintiffs at any time, then you may find that the debt sued for was fraudulently contracted, and you may sustain the attachment on that ground; that is, on the third ground above stated. But unless the proof satisfies you that plaintiffs' bill was purchased by the defendant with the intent last stated, that is, with an intent never to pay for them, you ought to find that the third ground of attachment has not been sustained.

There is only one further direction to be given you, and it is this: In weighing the testimony of the various witnesses, you are the exclusive judges of their credibility, and of the weight to be given to their testimony; and you have the right to ignore the testimony of any witness (if there be any) who as you believe has willfully testified falsely on this trial as to any material fact in controversy.

WEINGARTNER and others v. CHARTER OAK LIFE INS. Co.

(Circuit Court, E. D. Missouri, E. D. October 8, 1887.)

INSURANCE-INSOLVENCY OF COMPANY-ACTION BY POLICY-HOLDER.

The defendant, a mutual insurance company of Connecticut, but licensed to do business in Missouri, having become insolvent, the insurance commissioner began proceedings in the supreme court of errors of Connecticut, under Laws Conn. 1875, pp. 12, 13, §§ 1, 2, to annul its charter, and wind up its affairs. Holders of running policies in Missouri commenced suits by attachment in the courts of that state to recover the reserve value of their policies, upon the theory that the insolvency of the company worked a breach of the contract of insurance, and entitled them to sue for the present value thereof, but it was decided (Fry v. Insurance Co., 31 Fed. Rep. 197) that they were barred by, and must be remitted to, the proceedings in Connecticut. Held, that the principle of the above case applied to an action in Missouri by the holder of a death claim.

Suit by Attachment by the holder of a death claim in a mutual life insurance policy.

Geo. D. Reynolds, for plaintiffs.

J. S. Fullerton, for defendant.

THAYER, J., (orally.) In the case of J. Weingartner v. Charter Oak Life Insurance Company the only question is whether the case is controlled by the decision in the case of Fry v. Insurance Co., 31 Fed, Rep. 197, which was decided at the last term of this court. In the Fry Case, the holder of a running policy had brought suit by attachment in this jurisdiction against the Charter Oak Life Insurance Company, to recover the reserve value of his policy, upon the theory that the insolvency of the company worked a breach of the contract of insurance, and entitled him to sue for the present value of the same. In that case, we held that the Missouri policy-holder was presumed to be acquainted with the charter of the company in which he was insured, and with the insurance laws of the state of Connecticut, that regulated and determined its existence, and to have assented thereto when he became a member of the company by taking out a policy therein; and we further held that under the charter of the company, and the insurance laws of Connecticut, that determined and regulated its existence, an action by attachment could not be maintained in this jurisdiction by the holder of a running policy to recover its present value, so long as there was a proceeding pending in the name of the superintendent of insurance of the state of Connecticut against the company, in the courts of that state, to annul its charter, and to liquidate its affairs. We held, in substance, that when the company became insolvent, and proceedings were taken against it, in the statutory form, by the insurance commissioner of Connecticut, to liquidate its affairs, that proceeding, so long as it was pending, operated to preclude policyholders from maintaining a suit against the company in this jurisdiction of the kind above described.

In the present case the suit is by the holder of a death claim, and the fact is supposed to make a distinction between the two cases, and to entitle this particular plaintiff to sue by attachment in this jurisdiction. We think, however, that that view of the case is erroneous. We think that a death claimant occupies the same position as the holder of a running policy; that both claims are claims preferred by persons who are members, or the representatives of members, of the corporation; and that both classes of claimants are bound by the charter of the company, and the insurance laws of the state, which regulate the existence of the company; and that both claims rest upon the same meritorious consideration, that is to say, the premiums which the respective parties have paid to the company; and that the death claimant cannot maintain a suit by attachment in this jurisdiction as long as the proceeding is pending in the home state, at the instance of the superintendent of insurance, to annul the charter of the corporation, and liquidate its affairs. The death claimant, as well as the holder of a running policy, should intervene in that proceeding, instead of suing by attachment in this ju risdiction.

Of course, we do not determine in this case, and it is not necessary to determine, whether the holder of a death claim, when the assets of

the company are distributed, will be entitled to a priority over the holder of a running policy. That is a question which will be determined by the court in which the proceeding to wind up the affairs of the company is pending, and can more appropriately be settled by the Connecticut court according to the construction placed on the insurance laws of that state. All we hold at this time is that the plaintiff is in the wrong forum, and that the suit cannot be maintained so long as a prior proceeding to wind up the company is pending and undetermined in the state of Connecticut. Therefore the judgment will be the same as in the Fry Case. In other words, judgment will be entered for the defendant.

COGHLAN v. SOUTH CAROLINA R. Co.

(Circuit Court, D. South Carolina. October, 1887.)

1. TENDER-SUFFICIENCY-EFFECT.

When, upon a claim for money, the debtor, before suit brought, tenders a certain sum in lawful tender, absolutely and without condition, to his creditor, and this is refused, he may retain the money, and, on suit brought against him, will be relieved from payment of interest after the date of tender, and from payment of costs, if plaintiff recover no more than the sum tendered.

2. SAME.

But, if the offer to pay be made pending the suit, it cannot avail him, unless he follow it up with an offer to pay the money into court, or, at the least, submit to a judgment for the sum admitted.

(Syllabus by the Court.)

H. E. Young, for complainant.
Mitchell & Smith, for defendant.

SIMONTON, J. This is a bill seeking to enforce the payment of certain bonds, secured by a mortgage of the property of the South Carolina Railroad Company. After an order of reference was made in the case, and the report thereon filed, but before the sum actually due was ascertained, the defendant offered to pay to the plaintiff the sum of $44,600, which the defendant alleged was in full of debt and costs. The money was tendered in legal-tender notes. No receipt was demanded. The offer was refused by complainant. The defendant did nothing after the offer was declined, and now insists that the complainant cannot recover interest on his claim accruing after the date of his refusal, to-wit, twentyeighth February, 1883.

Where a claim is made on a money demand, and the debtor is prepared to admit a part of the claim, he can tender to the claimant the amount admitted. If the tender be refused, and suit be afterwards instituted, the plaintiff must establish that more was due to him than the amount tendered, else he will lose as well the costs as all interest accruing after the tender. The party making the tender must see that it

is made to the proper person, in legal tender; that it is absolute, not clogged with any condition; and that it is continuous,-that is to say, he must always be prepared to complete the tender and produce the money. Fishburne v. Sanders, 1 Nott & M. 243; Black v. Rose, 14 S. C. 278; 5 Rob. Pr. 947, 948; Bissell v. Heyward, 96 U. S. 587. No suit having been commenced, the acceptance on the part of him who is to receive is necessary to the full discharge of the party tendering. If this be withheld, the latter having done everything in his power, must retain his money, and need only keep himself in readiness to fulfill his tender if the other party changes his mind. 5 Rob. Pr. 947; Dobie v. Larkan, 32 Eng. Law & Eq. 501.

But when an action has already been commenced and is pending, if the defendant be disposed to admit the demand in part, it is not only necessary that he should offer to pay the amount admitted in the same way as the tender before suit should be made, but he must go further, and either pay the sum admitted into court, or, at the least, offer to submit to a judgment for that sum. This is the rule in the common-law courts. Even when a tender before suit has been made, the plea of the tender must be accompanied by an offer to pay the money into court. 1 Tidd, Pr. 540; 5 Rob. Pr. 949, 950; Civil Code Proc. S. C. § 265, subd. 5. It commends itself to this court. The reason for the practice is clear. A tender before suit cannot possibly be made complete if not accepted. There is no way of compelling the acceptance. An offer to pay, pending a suit, can be made complete by the action of the courts ordering the money paid in. The court, in this, represents both parties, and its orders bind the plaintiff as well as the defendant. The money paid in is for the plaintiff, and the possession of it cannot be resumed by the debtor. In the further prosecution of the case that much is stricken from the record, whether the plaintiff takes out the money or not. Black v. Rose, 14 S. C. 278. Or, as stated in Boyden v. Moore, 5 Mass. 367:

"The bringing of money into court is a practice adopted to relieve the defendant against an unexpected suit, for money which he is willing to pay, but which he has not tendered to the plaintiff before the commencement of the suit. After the defendant had brought in as much money as he thinks proper, and the plaintiff has refused to receive it in satisfaction, the defendant is entitled to have the same considered as a payment made on the day on which it was brought."

The offer

In the present case the defendant simply offered to pay the money, and, when it was refused, was content to do nothing more. cannot avail it as if it were a tender.