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contract headed with the name of the association and signed
by them respectively as president, secretary and treasui*er,
as appears to have been the case in Hitchcock v. Buchanan^
105 U. S. R., 416, cited by the defendants, and the complain*
had contained no allegation that they were carrying on the
insurance business under a certain name and made the con-

Digitized by


JANUARY, 1890. ^ 313

Lawler v. Murphy.

tract witji Thomas Lawler, the question would be a diflferent
one, especially if it appeared that the association was incor-
porated. But under the decision of Davison v. Hblden, 55
Conn., 103, the defendants certainly might be liable on a con-
tract signed by them as officers of an organization. If, as the
statute permits, the organization consisted simply of individ-
uals united under a distinguishing associate name for business
purposes, they did not thereby acquire either corporate power
or immunity from individual liability ; consequently it could
not appear, as a matter of law, from the contract declared
on, that the defendants made no personal contract or agree-
ment upon which they were personally liable.

The case of Davison v. Holden was a suit against certain
individuals who were, in fact, the president and secretary of
an unincorporated association. This court held that "as a
matter of law the plaintiflF, in giving credit to the associate
name, gave credit to the individuals who upon inquiry should
be found to stand behind it," It seems clear, without pursu-
ing the subject further, 'that this cause for demurrer cannot
be sustained. Individual members of an unincorporated as-
sociation are liable for contracts made in the name of the
association, without regard to the question whether they so
intended or so undei-stood the law, and even if the other
party contracted in form with the association and was* igno-
rant of the names o{ the individual members composing it.
And it is also held in the case just cited, that the individual
members of such an association do not acquire any immunity
from individual liability by force of the statutes which pro-
vide that any number of persons associated, and known by
some distinguishing name may sue and be sued, plead and
be impleaded, by such name; and that the individual pro-
perty of the members shall not be liable to attachment or
levy of execution in a suit brought against the association.

The remaining causes assigned for the demurrer are, that
the only breach of the contract alleged in the complaint is
that the defendants did not make an assessment, whereas
there is no provision in the contract that the defendants or
any of them should make any such assessment; and that the


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814 JANUARY, 1890.

Lawler v. Murphy.

complaint alleges that, by the contract, the death assessment
was to be made by the defendants, whereas it appears in the
contract that death assessments were to be made by the di-
rectory of the association, and it is not alleged that the
defendants are members of the directory. The conclusion
to which we have already come, that the contract implies a
promise that the defendants will make, or cause to be made,
an assessment to meet death claims, makes further discussion
of these causes unnecessary. We do not concur in the as-
sertion therein made, that death assessments were to be made
by the directory. Its duty was the subordinate one of ascer-
taining the amount necessary to be raised by assessment.
This the contract undertakes that it shall do, and that an
assessment shall thereupon be made by the Insurance Fund.

Two other questions were discussed before us, namely,
whether, if it should be held that the contract contains an
agreement to make an asseissment, the plaintifiTs remedy is
at law, or whether she must first go into a court of equity
to compel the defendants to make 'the assessment; and, if
an action at law can be sustained, what is the rule of damages.
As to the first, we think an action at law can be sustaineil.
Neither circuity nor multiplication of actions is favored by
our practice. If there is a contract to make an assessment,
a breateh of which is alleged and damages demanded therefor,
and a rule of damages can be provided, why should not an
action at law be sustained ? Both Niblack and Bacon, re-
cent writers upon the subject of mutual benefit societies,
after examining a great number of cases, come to tlie con-
clusion, with which we fully agree, that the decided weight
of authority is to the effect that an action at law will lie for
damages for the breach of a contract to make an assessment.

It makes no difference with the questions raised by the
demurrer whether substantial or nominal damages can be
recovered, for it ought to have been overruled if the plaint-
iff is entitled to an}*^ damages at all. Still, the i*ule of dam-
ages applicable to the case was thoroughly argued and both
parties invited a decision upon it.

Referring again to the contract, the Insurance Fund agrees


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JANUARY, 1890. 815

Lawler «. Murphy.

to pay to the proper person, in sixty days after due proof of
death, a sum received from a death assessment, but not to
exceed one thousand dollars. Each member pays one dollar
upon joining the association, and agrees, upon the death of
any member, to pay at once, if required, an additional
assessment of whatever the directory shall deem necessary.
Deem necessary for what? Clearly not what it shall deem
necessary to pay^ leaving the amount discretionary with the
directory and to be settled in each individual case as it may
deem necessary, but what it shall deem it necessary for the
association to raise by assessments in order to pay the one
thousand dollars. In short, the contract is to be taken as
an agreement to make an assessment which, if duly paid,
will raise one thousand dollars, or so much thereof as, in
addition to funds on hand, will make that sum. The insured
takes the risk of the neglect of members to meet their assess-
ments, and of the consequent reduction of the maximum sum
named. One thousand dollars is, primd facie, the value of
the policy, and the Insurance Fund was bound to take all the
steps which it contracted to in order to realize that sum.
Cases cited by the plaintiff, and other cases which we have
examined, fully sustain this conclusion. And the rule is a
fair one, because it is always within the power of the asso-
ciation to live up to its contract, and thus fix the sum which
a death assessment will bring.

In JElkhart Mutual Aid Association v. Houghton^ 103 Ind.,
286, the certificate entitled the beneficiary to one thousand
dollars, or so much thereof as might be realized from one
assessment. The complaint alleged the death of the bene-
ficiary, proof of his death duly given, and the refusal of the
defendant to pay the amount named in the certificate or any
part thereof, and its refusal to order or make any assessment
to raise the required sum or any part of it. The defendant
was held liable for the maximum amount, it not being shown
in defence that an assessment would not produce the full
amount of the certificate. It was assumed that it was the
duty of the defendant to make an assessment, though the
contract contained no express agreement to that effect


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816 FEBRUARY, 1890.

Gates V. Steele.

Uamshaw v. Sun MiUual Aid Society^ 68 Md., 467 ; Luede/i
Uxrs, V. Hartford Life ^ Annuity In%, Co,^ 12 Fed. Reporter,
465 ; Kansas Protective Union v. Whitt^ 36 Kan., 760 ; Cov-
enant Mutual Benefit Association v. Hoffman^ 110 III., 606 ;
Suppiger v. Covenant Mut. Benefit Asso.^ 20 111. App., 595 ;
Niblack on Mutual Benefit Societies, § 410, commenting on
Nevmtan v. Covenant Mutual Benefit Asso,^ 72 Iowa, 242.
There is error in the judgment appealed from.

In this opinion the other judges concurred,

Clarence E. Gates vs. Thomas S. Steele and


Hartford Dist, Jan. T., 1890. Andrews, C. J., Carpbntbb, Loomis,
ToBBANOB and Thatkb, Js.

Af one of the defendants, placed In the bands of B, the other defendant,
an attorney, a small claim against C, on which B brought a suit be-
fore a justice of the peace. After the writ was served C called on A
and paid him a less sum than the full amount of the claim, which A
agreed to accept in full of the debt and costs, and gave him a receipt
in full therefor. On the return day of the writ C did not appear and
B took a judgment by default for the whole amount of the claim. In
a suit brought by C for an injunction against the enforcement of the
judgment, alleging the above facts, and charging fraud in the matter.
It was held —

1. That the receipt in full was a complete defense to the action.

2. That C was not to be regarded as guUty of laches in not appearing be-

fore the justice and pleading it

3. That the allegations of the complaint were sufficient.

A mere allegation of fraud, without stating the facts upon which the fraud
is predicated, is insufficient.

[Argued January 16th— decided February 17th, 1890.]

Suit for an injunction against the collection of a judg-
ment; brought to the District Court of Waterbury, and
heard, upon a demurrer to the complaint, before Cowell^ J

Digitized by


FEBRUARY, 1890. 81T

Gates V, Steele.

Demurrer overruled, and judgment rendered for the plaint-
iff, and appeal to this court by the defendants. The case is
fully stated in the opinion.

JS. S. Wescott^ for the appellants.

W, H. Pierce^ for the appellee.

Thayer, J. The defendants appeal from a judgment of
the District Court of Waterbury granting a perpetual in-
junction to restrain them from making use of a judgment
which they have obtained against the plaintiff. The ques-
tions raised by the appeal are presented by the defendants'
demurrer to the complaint.

The plaintiff, who resides in Waterbury, was sued upon a
small claim by writ in favor of the defendant Steele, return-
able before a justice of the peace in Hartford. Before the
return day of the writ the plaintiff paid Steele $20, in full
for all claims and indebtedness and in full settlement of the
action, and took from him a receipt in full. Upon the re-
turn day Wescott, the other defendant in the present suit,
who as Steele's attorney had brought the suit and had
charge of it, took judgment by default against the plaint-
iff for the full amount of the original claim with costs.
These facts are substantially alleged in the complaint, and
it is averred that the judgment was fraudulently obtained
with the design to oppress and extort money from the

The causes of demurrer, briefly stated, are that the plaint-
iff did not appear and plead his receipt in full in bar of the
action before the justice, that the alleged payment was not
a complete defence to that action, and that the facts which
constitute the fraud relied upon are not sufficiently set forth
in the complaint.

The plaintiff, after the payment to Steele, had a perfect
defence to the action which had been brought against him.
The voluntary acceptance of the money by Steele, in fuU
settlement, operated to discharge both the debt and the costs.

Digitized by


818 FEBRUARY, 1890.

Gates V, Steele.

Canfield v. Eleventh School District^ 19 Conn., 629; Ayer v.
Ashmead, 31 id., 447 ; Buell v. Flower, 39 id., 462. The
receipt in full could have been pleaded in bar to the further
maintenance of the suit. Beam v. Bamum, 21 Conn., 200;
Abom V. Rathlone, 54 id., 444. But the plaintiffs failure
to appear and plead the receipt, under the circumstances,
was not laches. He was not bound to go to Hartford to
answer to an action which he had fully settled. He was
justified in believing that the defendants would take no un-
fair advantage of his absence. They knew the reason for
that absence. Their conduct in taking judgment in a suit
which they had settled amounts to a fraud upon the plaint-
iff. Chambers v. Rabbins, 28 Conn., 552.

That the specific acts of fraud relied upon should be
stated in the complaint is true. A mere allegation of fraud,
without stating the facts upon which the fraud is predi-
cated, is insuflScient. But the facts alleged in this complaint
show that the defendants have obtained an unrighteous
judgment against the plaintiff which it is against conscience
to enforce. They show the means by which that judgment
was obtained. And they show that it was fniudulently ob-
tained, with the intent to use it to oppress and extort money
from the plaintiff. The conduct of the attorney in the mat-
ter, so long as it is not repudiated by Steele, must be taken
as equally his conduct. Upon demurrer the matters thus
alleged must be taken to be true. They are sufficient to
entitle the plaintiff to the relief demanded in the complaint
and granted by the court below.

There is no error in the judgment appealed from.

In this opinion the other judges concurred.


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FEBRUARY, 1890. 819

Egbert v. Baker.

Thomas K. Egbert and another vs. Daniel K. Baker


Same. John D. Stout and others v. The Same.
Stephen Underbill v. The Same.

New Haven & Fairfield Cos., Oct. T., 1889. Andrews, C. J., Carpen-
TBR, Loom 18, J. M. Hall and Thatrr, Js.

A common law assignment made by a debtor In another state, good by the
laws of that state, will convey to the assignee debts due the assignor
from persons residing in this state, who are notified of the assignment.

It does not affect the case that the assignment was made to a trustee for
the benefit of certain preferred creditors, and that it would not have
been valid if made in this state.

[Argued October 81st, 1889— decided February 7th, 1890.]

Four factorizing suits against the defendants, Daniel K.
Baker and Charles A. Clark, partners under the name of
Baker & Clark, served upon numerous garnishees as debt-
ors of the firm ; brought to the Superior Court in Fairfield
County. One of the defendants resided, at the time the
suit was brought, in the state of New York, and the other
in the state of New Jersey. The plaintiffs in all the suits
resided at that time out of this state. The defendants ap-
peared only for the purpose of pleading to the jurisdiction,
as no service was made on them, and the court acquired
jurisdiction, if at all, only by the attachment of the debts
due from the garnishees. Before the suits were brought
the defendants had made an assignment of all their pro-
perty, including the debts in question, to a trustee for cer-
tain preferred creditors, and notice of the assignment had
been given to the debtors. The cases were heard together
upon the pleas to the jurisdiction before Phelps^ J. The
facts were found, the pleas sustained, and the cases dis-
missed. The plaintiffs in all the cases appealed to this
court and the cases were argued here together. The facts
are fully stated in the opinion.


71 356


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820 FEBRUARY, 1890.

Egbert v. Baker.

S. Tweedy^ for the appellants.

1. The situs of the debts attached in this ease is to be
regarded as in this state, at the domicil of the debtor. " The
exceptions to the maxim, mobilia sequentur personam^ have
become so numerous that it cannot safely be invoked for
the decision of any but the simplest cases of the present
day." Story's Confl. of Laws, 8th ed., § 383, note a. For
some purposes, such for instance as adminLstration, personal
property has a situs at the place where it actually is, and in
such cases at least debts have a sitvsy and are to be regarded
as assets at the domicil of the debtor. Holcoml v. Phelps^
16 Conn., 127 ; Moore v. Bonnell, 31 N. Jer. Law, 90. So
for the purposes of taxation. Graham v. First Nat. Bank,
84 N. York, 398, 401. Other well recognized exceptions are
found in cases of involuntary or statutory assignments, and
proceedings under foreign bankrupt or insolvent laws.
Story's Confl. of Laws, 8th ed., § 383, not^ a ; Upton v.
Hubbard, 28 Conn., 274; Paim v. Lester, 44 id., 196; Tay-
lor V. Columbian Ins. Co., 14 Allen, 353 ; Willits v. Waite,
25 N. York, 577. A careful examination of the many cases
supporting this particular exception, conclusively shows
that, in the application of it, the courts have recognized no
such distinction, and have applied the rule of the lex situs
to debts and movables alike. Another important, and in
these cases a controlling exception to the general rule is,
that the lex situs prevails when the foreign assignment in
question is repugnant to the law and policy of the lex fori.
*' It is, however, a necessary exception to the universality of
the rule, that no people are bound or ought to enforce or
hold valid, in their courts of justice, any contract which is
injurious to their public rights, or offends their morals, or
contmvenes their policy, or violates a public law." 2 Kent's
Cora., i3th ed., 458 ; Wharton's Confl. of Laws, § 390 a /
Buriill on Assignments, § 306 ; Warner v. Jaffrey, 96 N.
York, 248 ; Ingraham v. Oeyer^ 13 Mass., 146 ; Fall River
Iron Works v. Croade, 15 Pick., 11 ; Zipcey v. Thompson, 1
Gray, 243 ; Boyd v. Rockport Steam Cotton Mills, 7 id., 406;
May V. Wannemacher^ 111 Mass., 202; Pierce v. O'Brien,


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FEBRUARY, 1890. 821

Egbert o. Baker.

129 id., 314; Favlkner v. Ryman^ 142 id., 58; PhiUon v.
Barnes^ 50 Penn. St., 230; Vamum v. Camp^ 13 N. Jer,
Law, 326 ; Moore v. Bonnell^ 31 id., 90 ; Sheldon v. Blanvelt^
29 So. Car., 453 ; Atwood v. Protection Ins. Co.^ 14 Conn.,
555. The cases at bar are clearly within this exception, for
this assignment in trust for the benefit of creditors, made
by insolvents with a view to insolvency, and creating large
preferences, is in direct contravention of the positive law
and the well-settled policy of this state. It would have
been void if made in this state. Whether such an assign-
ment be a voluntary, involuntary, common law or statutory
one, is not deemed important, and the courts, in cases fall-
ing within this last exception, apply the rule of lez situs to
debts and movables alike, in aid of attaching creditors of
non-resident assignors. Story's Confl. of Laws, 8th ed.,
§ 883, note a; Burrill on Assignments, § 306; Green v.
Van Buskirk, 5 Wall., 307, and 7 Wall., 139 ; Hervet/ v. E.
IsL Locomotive Works^ 98 U. S. R., 664 ; Fox v. Adams^
5 Greenl., 245; Felch v. Bxighee^ 48 Maine, 9; Borden v.
Sumner^ 4 Pick., 265 ; Blake v. Williams^ 6 id., 286 ; Rhaton
V. Pearce^ 110 111., 350; Frazier v. Fredericks^ 24 N. Jer.
Law, 162 ; Mayherry v. Shisler^ 1 Harr. (Del.,) 349 ; Rich-
mondville Mfg. Co. v. Prall^ 9 Conn., 487 ; Pains v. Lester^
44 id., 196; Crouse v. Phoenix Ins. Co., 56 id., 176.

2. It makes no difference that the plaintiffs are not citi-
zens of this state. In Paine v. Lester, supra, this court
says (p. 203:) "This comity they are prepared to extend
when there is no reason to the contrary, especially if there
is no interest of our own citizens, or of the citizens of a
sister state, who are seeking to avail themselves of the pro-
tection of these laws, to be injuriously affected by such re-
cognition." And again (p. 204:) "The citizens of all our
sister states have, by the constitution of the United States,
the same privileges with our own citizens, and any one of
them who has availed himself of the legal remedies furnished
hy our laws to secure payment of a debt due him, has the same
claim to the assistance of our own courts that one of our
own citizens would have." In Burrill on Assignments, 6th
Vol. Lvrn. — 21


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322 FEBRUARY, 1890,

Egbert v. Baker.

ed., § 310, note 1, it is said: — '*But in Paine v. Lester^ 44
Conn., 196, the court would abolish all distinctions between
citizens of Connecticut and citizens of other states." But
the state does not stand alone on this question. The same
doctrine is held in the Supreme Court of the United States
and in many of the state courts.

3. The fact that there are in New York certain statutory
regulations which apply to assignments of this character,
and in conformity with which this assignment was executed,
may be of some importance in the determination of these
cases. It cannot be claimed that this assignment was made
under any insolvent law; the finding negatives any such
claim ; but it does not necessarily negative the claim that
this is a statutory assignment. The making of an assign-
ment under our insolvent laws is an ** exercise of the right
at common law to assign and transfer property." Sdwkins^
Appeal from Probate^ 34 Conn., 548, It will hardly be
claimed that such an assignment is not a statutory one.
But these New York statutes have so materially limited and
restricted the common law right, as it existed prior to the
General Assignment act, that when we consider those limi-
tations and restrictions, the nature and extent of the methods
of the administration of the estate assigned, the conditions,
penalties and preferences imposed, and the fees prescribed,
all statutory, it is difficult to view this assignment as a com-
mon law one, at least to the extent claimed by the defend-
ants. Hardman v. Bowen^ 39 N. York, 196; In re Morgarty
99 id., 145; Richardson v. Thurber, 104 id., 606.

G, Stoddard and TF. T, Haviland^ for the appellees.

Carpenter, J. These are four cases against the same
defendants. One of the defendants resides in the state of
New York and the other in New Jersey. The plaintiffs in
two of the cases reside in New York, and in the other two
in New Jersey. In each case suit is brought in this state by
process of foreign attachment. Property otherwise is not
attached and no personal service was made on the defendants.


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FEBRUARY, 1890. 828

Egbert v. Baker.

In each case there is an appearance for the defendants for
the sole purpose of pleading in abatement to the jurisdiction.
The Superior Court found the allegations of the plea true
and abated the suit. The plaintiffs in each case appealed,
and precisely the same question is raised in all.

The sole question is — whether the debts due originally
from the garnishees to the defendants were due to them
when the suits were brought or to their assignee.

It appeai-s that before the suits were brought the several
debts had been assigned in a general assignment of all the
property of the defendants, to one Clarence F. Birdseye, in
trust for the benefit of certain preferred creditors, and notice
given to the debtors of the assignors who are now garnishees.
The assignment was not made by operation of law in bank-
ruptcy or insolvent proceedings, but was a voluntary assign-
ment at common law. It is conceded that if the assignment
operated to transfer the several debts, the judgment is right ;
if not, that it is eiToneous and must be reversed.

It is a general principle that debts have no situs. For
purposes of administration and attachment in cases of foreign
creditors, and possibly for some other, they are regarded as
located where the debtor resides. But for most purposes,
especially for the purposes of assignment by the creditor, they
follow the residence of the creditor. No claim is made that
these debts could only be assigned according to the require-
ments of our law.

Another general principle is, that an assignment or other
contract good in the place where made is good everyv^here.
These principles are conceded. It must also be conceded
that they determine this case, unless for some reason it can
be regarded as an exception. It is suggested, although not
very strenuously urged, that we ought to regard the facts of
this case as showing that the assignment was in reality, al-
though not made under any insolvent law, statutory, and as
such within the principle of those cases in which this court
has held that insolvency proceedings under the laws of other
states do not affect debts dueirom our citizens to the insol-


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824 FEBRUARY, 1890,

Egbert o. Baker.

irent. Upton v. Hubbard^ 28 Conn., 274 ; Paine v. Lester,
44 Conn., 196.

We think this is not a statutory proceeding in the sense
claimed by the plaintiffs. We do not understand that the
assignment act of New York attempts to deal with the nature
and effect of the assignment, but simply prescribes the duties
of the assignor and regulates the mode of administering the
trust. It is in no sense an insolvency proceeding prescribed
by statute, but is a proceeding instituted by the assignor for
the benefit of such persons only as he may please to name.

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