then summoned the assignee as trustee of the assignor. The rights of the parties in this trustee process must be determined by the conditions as they existed at the time of the service of the writ, February 9, 1900. Pleasant Hill Cemetery v. Davis, supra.

permitted his attorneys, who were acting also did nothing, however, for four months, and for the assignor, to attend chiefly to the details of the business; that no effort was made to secure the assent of the creditors to the assignment, but, instead, a compromise settlement was solicited; that some of the money received from the property was turned back to Mrs. Dyer; and that the attor neys were allowed by the assignee too liberal compensation for their services.

The plaintiffs did not assent to the assignment, and therefore the defendant owed no contractual duty to them as such assignee.

If, prior to the service of their writ upon him, he had discharged himself of the trust by delivering back to the debtor in good faith the property received, or by paying the proceeds thereof to her bona fide creditors in settlement of their just demands, then the plaintiffs would have no legal cause to complain of his acts. Thomas v. Goodwin & Trustees, 12 Mass. 140.

This position of the plaintiffs that the record here shows that the assignment was made with a fraudulent intent is untenable, we think. The situation and conduct of the assignor at the time it was made, and the provisions of the assignment itself, refute and disprove it. Mrs. Dyer was insolvent, creditors were attaching, she could not pay them, and in this extremity she placed all of her property in the hands of a trustee for An examination of the disclosure and oththe benefit of all of her creditors without fa- er evidence in the record shows that prior vor or preference, reserving nothing for her- to February 9, 1900, the date of plaintiffs' self, even for her immediate necessities. Her attachment, the defendant had paid from the act did not put the property beyond the reach | $3,780 received from the property that Minof her creditors. It was still subject to at- nie A. Dyer assigned to him by her orders tachment by trustee process in the hands of to her bona fide creditors and to herself $3,the assignee by any nonassenting creditor, 381.51, leaving an actual cash balance in his who would by such attachment reach all of hands of $398.49. But there had been a prior such property then held by the trustee, and trustee process served upon him in favor not needed to satisfy the debts of any previ- of Swift et al., creditors of the assignor, in ously assenting creditors. which prior proceedings he was finally adjudged trustee for $215.83, and which judgment was afterward paid by him from the $398.49, leaving but $182.66 attachable in his hands February 9, 1900.

Neither do we perceive in the subsequent conduct of the parties, as suggested by the plaintiffs, any substantial proof of an original fraudulent intent, or actuating motive, to hinder, delay, or defraud creditors. The assignee had a right to employ others to assist him in the execution of the trust, for whose acts, however, he became in law fully responsible. If the creditors were seasonably notified of the assignment, and had an opportunity to assent thereto, and it appears that the plaintiffs were so notified, then no special duty rested on either the assignor or assignee to secure such assent.

It is unnecessary to consider here the fact that after the service of the plaintiffs' attachment the defendant also paid $420 to S. W. Thaxter & Co., previous attaching creditors, because the defendant now admits that he must personally lose the benefit of that payment; the same having been made without the statutory demand upon execution necessary to fix his liability therefor as against a subsequent attaching creditor.

The plaintiffs suggest that it does not sufficiently appear that the defendant's liability, as trustee in the suit of Swift et al., was legally fixed so as to afford him the benefit of that payment.

From the whole disclosure, and all the evidence in the record, we think it does ap

An intent to defraud creditors, especially such creditors as have not assented to the provisions of a common-law assignment for their benefit, is not to be inferred, we think, from successful efforts to compromise the creditors' claims after such assignment is made. We find, therefore, nothing in the assign-pear that the payment to Swift et al. was ment itself or in the situation or conduct of the parties thereto to justify the plaintiffs' claim that the assignment was fraudulent and void as to the assignor's creditors.

made because the defendant was legally required so to do. The plaintiffs do not deny this in their allegations.

It appears that he paid it after a contest and hearing in court.

In answer to a question whether that payment was made "to protect you from liability," he answered "Yes."

When notified of the assignment, the plaintiffs might have assented thereto, and secured a pro rata part of the property with other assenting creditors, or they might have attacked the assignment through bankruptcy proceedings against the assignor, or, lastly, they might have attached by trustee process the property in the hands of the assignee, and thereby secured so much thereof as would not be needed to satisfy the debts of An assignee, accepting such an assign

Again, the plaintiffs contend that the defendant is chargeable for the amounts paid back to Mrs. Dyer. This contention would prevail if the plaintiffs had become parties to the assignment.

creditors to administer the trust according | exceptions are taken to the ruling and decito its provisions. But, as to nonassenting sion of a single justice as to the liability of creditors, he owes no such duty. They can- a trustee, the whole case may be re-examinnot legally complain if he gives up the trusted and determined by the law court, and and returns the property to the assignor, remanded for further disclosure or other prounless he does it with the intent and pur- ceedings, as justice requires." This statute pose thereby to defraud such nonassenting applies alike to scire facias and original procreditors. The plaintiffs here did not be- ceedings in trustee process. Brainard v. come parties to this assignment. They are Shannon, 60 Me. 342, was an action of scire not in a position to complain because the as- facias. Under the exceptions this court has signee prior to their attachment permitted authority, we think, to correct any error in Mrs. Dyer to use some of the property as- the judgment below whether of law or of signed to him, unless that was done by him fact. to defraud them. The record does not disclose any such intent to defraud. Mrs. Dyer turned over to the assignee all of her property not attachable. She was without any means of support. Domestic difficulties resulted in divorce proceedings by her against her husband. The assignee permitted her to have from time to time for her support and expenses money from the property she had turned over to him, amounting in all to $550. We do not think he is chargeable for that sum in this subsequent trustee process by nonassenting creditors.

Still again the plaintiffs contend that the counsel fees paid by the assignee should not be considered a proper disbursement. This contention is not maintainable. The assignee had a right to employ the services of counsel. The property was attached before it was assigned. Other suits were brought in which the assignee was summoned as trustee. The husband's rights in the property were an incumbrance upon it, to be removed in some way.

It therefore does not appear unreasonable that defendant did employ counsel. The assignment provided for the payment of necessary counsel fees. It appears that the counsel employed performed substantially all the detailed business connected with the

settlement of the affairs, looked after all the litigation which has followed, and that the assignee charged nothing for his services. In view of all this, it cannot be said that the amount paid for these services is excessive, or that its payment by the assignee indicates an intent to defraud the plaintiffs.

Lastly, the plaintiffs question the authority of this court, under the exceptions, to pass upon the correctness of the judgment below because the bill of exceptions, does not indicate whether the decision was erroneous in fact or in law.

Our conclusion is that the defendant has shown by his disclosure that prior to February 9, 1900, the date of the service upon him of the plaintiffs' original trustee writ, he had lawfully discharged himself of all the property received by him from Minnie A. Dyer except the sum of $182.66, and for that sum only the plaintiffs should have judgment.

Accordingly the entry should be:
Exceptions sustained.

Judgment for plaintiffs for $182.66.

Cent. Dig. § 935; Dec. Dig. § 319.*]
[Ed. Note.-For other cases, see Execution,
3. EXECUTION (§ 319*) SALE
DEBTOR.

NOTICE TO

A recital by an officer in such deed that he "sent a notice (to the judgment debtor) by mail" the postage as required by the statute. fairly and sufficiently imports that he prepaid Rev. St. c. 78, § 33.

[Ed. Note. For other cases, see Execution, Cent. Dig. § 935; Dec. Dig. § 319.*] (Official.)

Report from Supreme Judicial Court, Sagadahoc County.

Action by Herbert W. Cutting and others against James H. Harrington. Case reported, and judgment for plaintiffs.

The exceptions in the case at bar provide that the "writ, evidence, including admissions made at said hearing and decree of the presiding justice, are to be annexed here Real action to recover a certain lot or parto and made a part of the bill of exceptions," cel of land at "Rising Sun or Log Landing," thus indicating that the whole case was to in the town of Phippsburg. Plea, the genbe considered by the law court. But the ex-eral issue, with brief statement that the deceptions need not specify the extent to which fendant "claims title to two undivided third the law court may examine the case. Chap- parts of said demanded premises and no ter 88, § 79, Rev. St., provides: "Whenever more."

of the demanded land which the defendant cided preponderance of the authorities mainclaims under levy of execution. The judg- tains this proposition: That the statutes rement and the execution are admitted to be quiring notice of the sale to be given are valid. The levy was by sale of the land un- directory merely, and that the failure to der what is now Rev. St. c. 78, § 32 et seq. give such notice cannot avoid the sale against The only objection urged against the validity any purchaser not himself in fault. This of the sale and its efficacy to pass the title rule has been applied in cases where the to the purchaser is that there is not sufficient purchaser was aware of the deficiency of the legal evidence that the officer gave to the notice, and seems applicable in all cases in judgment debtor the notice of sale provided which the absence of the notice was not ocby the statute. casioned by some fraud or collusion of which the purchaser had notice, or in which he participated." The theory seems to be that, while the officer is responsible to any party harmed by the absence or insufficiency of the prescribed notice of sale, the sale itself cannot be collaterally avoided thereby. Section 339. The purchaser at an execution public sale or his grantee is not in the same relation to the judgment debtor as is the judgment creditor taking the debtor's land direct to himself by extent. Their titles are different in origin and nature. The purchaser may have the benefit of reasonable inferences and presumptions in reading the officer's recitals of his doings without conflicting with the strict rule in cases of levy by extent. Section 339 of Freeman on Executions. Thus in Wood v. Morehouse, 45 N. Y. 368, where one question was whether the officer had given the proper notice of an execution sale, the court held that, in the absence of evidence to the contrary, it was to be presumed, under the maxim "Omnia præsumuntur rite esse acta," that the officer gave the proper notice. Other cases to the same effect are cited by Freeman in the section 339 above cited.

The plaintiffs claim that the only competent evidence of such notice is the return of the officer upon the execution, which return in this case may be conceded, arguendo at least, not to show sufficient notice. But, as was said by this court in Caldwell v. Blake, 69 Me. 458, at page 470: "Where an extent is made upon lands, the return of the officer must be seasonably made and recorded. Not so where property is sold upon execution. The statute does not require it, and the decisions are that 'the purchaser's title is not dependent on the performance of this duty by the officer. The purchaser has no control over the officer, and is not prejudiced by a deficient or incorrect return, nor by the entire absence of any return whatever.'" The giving the notice of sale, and how given, may be proved, prima facie at least, by the officer's recitals in his official deed to the purchaser. Wigmore on Evidence, § 1664.

In his official deed in this case the officer recited that he "sent to the [judgment debtor, naming him] a written notice by mail" of the time and place of sale; the debtor not being a resident of the county in which the land lay. The statute (section 33) provided that in such case the notice might be "forwarded to him (the debtor) by mail, postage paid." The plaintiffs contend that, even if the recitals are evidence, the omission of the words "postage paid" from the recital is fatal, and that because of that omission the purchaser acquired no title.

In cases of levy upon land by extent (where, instead of being sold at public sale after public notice, the land was transferred direct to the judgment creditor, as was formerly the practice in Maine and other New England states), it was generally held that the officer's return of his doings must be drawn with fullness and exactness. Inferences and presumptions were allowed little, if any, force. Such has been the rule of construction in this state in such cases. We do not think, however, that those decisions control the decision of cases like this, where the land is sold at public sale after ample public notice. Indeed, it is very generally held in the other states that, when a sale upon execution is actually made and a deed executed and delivered to the purchaser, no evidence of notice of the sale having been given need be adduced by him in support of his title. In Freeman on Executions (3d Ed.) § 286, the learned author, with many

In this state, also, the strict rule applied to returns of levy by extent has been relaxed in cases of levy by sale. In Bailey v. Myrick, 50 Me. 171, the statute required the notice of sale to be published in some "public newspaper." The officer returned that he had published the notice in "a newspaper," omitting the word "public." The court held that it sufficiently appeared that the statute was complied with; that the word "newspaper” imported publicity. In Millett v. Blake, 81 Me. 531, 18 Atl. 293, 10 Am. St. Rep. 275, the judgment debtor was described in the execution as residing in Lagrange. In his recital of sending a notice by mail the officer did not state that he directed it to the debtor at Lagrange. The court held that such a direction could be inferred, saying (page 535 of 81 Me., page 294 of 18 Atl. [10 Am. St. Rep. 275]). "Something may be inferred as to the correctness of the action of a public officer when the law requires him to do a certain act."

In the case at bar, as already stated, the statute provided that the notice to the debtor might be "forwarded to him by mail postage paid." The officer recited he "sent to the said [debtor] a written notice by mail." Taking into account the legal presumption "as to the correctness of the action of a public of

(Supreme Court of New Hampshire. Hillsbor- ment; (2) holders of debenture bonds; and

(3) unsecured creditors. The amount realiz1. BANKS AND BANKING (§ 73*) BANKING ed from the assets of the saving department CORPORATIONS-CAPITAL STOCK-NATURE- is insufficient to satisfy the claims of the deRIGHTS OF CREDITORS. The capital stock of a corporation doing a positors, the amount realized from the securibanking business is in the nature of collateral ties deposited with trustees is insufficient to