Van Keuren v. McLaughlin.

erty, that the other creditors received from the assignee, that is 66.27 per cent. of the whole debt, and if anything remains, then to an equal proportion on it with the creditors whose accounts were duly presented, to the extent of their whole debt. The assignee contends that the newly found property must be divided between the complainants and the creditors, in proportion to the original debts due to each.

The words are somewhat vague, and will perhaps admit of either interpretation. The first and natural meaning of the words appears to me to be, that a ratable proportion here means the same as the other creditors had received. The act does not direct the fund to be divided ratably between them and the other creditors, nor does it say a ratable proportion thereof, the natural expression if it was intended to be divided among all, and which would exclude the estate before divided. But if the words contained no guide to the interpretation, and either construction could be put upon it, the duty of the court is to put such as would be most consistent with justice and equity. In dividing property among such as have an equal claim thereto, the rule is "that equality is equity;" and it is clear that in this case to give to the complainants out of the property which they have discovered, first, the same proportion as the other creditors have received out of that discovered by the assignee, and then to give them a pro rata share in the excess, is equality. The statute excludes those who have not presented their claims within a time limited for that purpose, but this is because it is necessary that a time'should be limited that the estate may be settled up. The omission is no wrong, and by it such creditor should not be deemed to have forfeited any right except that which the statute takes away. And the act should be so construed as to induce creditors to find out the concealed property of debtors who make assignments, by placing them on an equal footing with creditors who have taken no pains to discover and defeat fraud. Vigilantibus non dormientibus leges subservient. In many cases, debtors having the choice of the

Van Keuren . Me Laughlin.

assignee, make the assignment to some personal friend, who will not look into or contest transfers made to relatives or personal friends, to preserve property for the debtor; this may have been the case where about one-half of the estate. was so transferred. And a creditor who is not willing to come in under such an assignee, but will seek discovery, and reach such property, should have at least the same share of it, as the others received of the estate surrendered by the debtor, as a reward of his energy to encourage such attempts. Again, if the creditor who finds property could only have out of such property a ratable proportion with that which the other creditors are to secure out of the same, then in this case, as the other creditors can only receive 33.73 per cent. of their debts, being the balance due upon them, the complainant can only be paid that proportion of his debt, although there is abundance to pay the whole of it. The construction to be given to this section therefore must be, that the creditor who finds other property is entitled to be paid ratably with the other creditors to the full amount which they have received, or shall receive on their claims, provided the property so found is sufficient for that purpose.

The complainants are on these principles entitled to have: First. The lot conveyed by the deed of July 9th, 1866, declared subject to their judgment, and the proceeds of sale applied to the payment of it; secondly, to have the amount due from James McLaughlin to the executrix of his father, on account of the debt of $7608, which the deeds of May 19th, 1866, were given to secure, and now due, ascertained by deducting from the principal the principal due on the mortgage from Clark and wife to James, on the 9th day of July, 1866, when it was assigned to Michael McLaughlin, and the interest then due on that mortgage, from the interest due to Michael McLaughlin on the debt to him from James; thirdly, out of the surplus of the proceeds of the property conveyed to Michael by the deeds of May 19th, 1866, over the amount due to his executrix so ascertained, the complainants are entitled to be paid, first, such amount as with

Inhabitants of Winslow v. Hudson.

the sum realized by them from the sale of the lot conveyed by the deed of July 9th, 1866, will pay 66.27 per cent. on the amount due on their judgment on the first day of February, 1867, when the dividend was paid to the other creditors, and next, out of the residue, a ratable proportion with the creditors who presented their claims to the assignee, in proportion to the amount of such claims then unpaid, not to exceed such amount.

And for this purpose there must be a reference to a master to ascertain and settle such amounts, and when ascertained, the property must be sold under the direction of this court, by a master to be designated for that purpose.

21 172 57 560

THE INHABITANTS OF THE TOWNSHIP OF WINSLOW vs.

HUDSON.

1. The questions, whether, under an act to authorize a township to issue "bonds to raise money to pay to such persons, who had or might volunteer in the army of the United States," bonds could be issued, or money raised for drafted men, or for any one but volunteers; whether a majority of the town committee, without a regular call for a meeting, could lawfully fill up, or seal, or deliver a bond; and whether they could do this in a place out of their own township; are proper to be determined by the courts of law, and by them only, and this court will not restrain a suit at law, in which these questions fairly arise, that they may be determined here.

2. Where the allegations of the bill, which, in such a case, might give a court of equity jurisdiction, are fully, directly and circumstantially denied by the answer, the denials, must, on a motion to dissolve upon bill and answer, be taken as true, and the injunction issued to restrain the suit at law be dissolved.

On motion to dissolve injunction.

Mr. P. L. Voorhees, in support of the motion.

Mr. A. Browning, contra.

Inhabitants of Winslow v. Hudson.

THE CHANCELLOR.

The complainants, "The Inhabitants of the Township of Winslow," filed their bill to restrain the defendant from prosecuting a suit brought by him on their bond for $500. The bill states that by an act approved February 22d, 1865, the complainants were authorized to issue bonds to raise money to pay to such persons who had or might volunteer in the army of the United States, and that at a town meeting held five days afterwards, they directed bonds to be issued for that purpose, and authorized the town committee to present to each drafted person, who would answer the call, or furnish a substitute in his stead, $600 of said bonds. That the defendant, who, on the 15th of February, had been drafted as one of the quota of twenty-seven men required. of the township of Winslow, on the 14th of March, before he had reported himself to the Provost Marshal, or been a epted or mustered in, applied to three of the township committee for the $600 so directed to be given to each man who should answer the call, and promised that if he did not have to go in the army himself, or did not send a substitute, that he would return the bounty to the committee. That he stated that he was a clergyman, and a man of character, and referred to Mr. A. K. Hay, a well known and prominent citizen, for his standing, and said that his word might be trusted for the return of the bounty. That the three members of the township committee, at Camden, out of their own township, and in the absence of the other members of the committee, filled up a printed bond, which they had with them, signed by all the committee, with the name of the defendant, and the sum of $500, and affixed a seal to it, and handed it, with $100 in money, to the defendant, upon the promise that he would return the whole if he did not go into the army, or send some one in his place. That the defendant did not go into the army, or send a substitute in his place; that the war came to an end, and the soldiers drafted were not and would not be required; that the

Inhabitants of Winslow v. Hudson.

defendant refused to return the bond, but has put the same in suit. The bill is to restrain the suit at law, on the grounds that the bond was delivered without authority and illegally, and that the complainants could not set up, at law, the non-performance of the condition on which the bond was delivered.

The legal questions whether, under this statute, bonds could be issued, or money raised for drafted men, or for any one but volunteers; whether a majority of the town committee, without a regular call for a meeting, could lawfully fill up, or seal, or deliver a bond; and whether they could do this in a place out of their own township; are proper to be determined by the courts of law, and by them only, and this court will not restrain a suit at law on which these questions fairly arise, that they may be determined here.

As to the conditional delivery of the bond, and the fraudulent conduct of the defendant in refusing to give up the bond, and in bringing suit upon it, which, perhaps, might give a court of equity jurisdiction, the answer fully, directly, and circumstantially denies all the facts alleged in the bill, upon which that equity depends. It denies that the defendant made the representations stated concerning his profession or character, or that he referred them to A. K. Hay, or that he promised to return the bond and money if he should not go into the army, or procure a substitute. And in reference to other allegations of the bill, he answers that he reported himself in pursuance of notice, to the office of the Provost Marshal, as one of the men drafted to fill the quota of Winslow township; that he was examined and accepted by the board of enrollment, and was enrolled and credited to the quota of the township, and became subject to the regulations of the army; that he was twice furloughed by the government officers, and each time reported himself to the rendezvous.

These facts, stated in answer to the charge that he did not answer the call, must, on this motion, be taken as true, and if true, answer the whole equity of the bill. If the