do not show that Whitlock's presence as a party was in any way essential to a proper determination of the controversy between the plaintiff and defendant, or that he had, or claimed to have, any interest in that controversy. A defendant is not permitted to bring in third parties for the purpose of litigating with them matters in no way connected with the suit. State v. Wright, 50 Conn. 580, 583; Carroll v. Weaver, 65 Conn. 76, 84, 31 Atl. 489; Lowndes v. City National Bank, 79 Conn. 693, 696, 66 Atl. 514. The motion was therefore properly denied.

The amendments to the complaint were clerical ones which did not change the issues, and an increase of the amount named in the ad damnum clause. Such amendments are permitted at any time before verdict, at the discretion of the court, and their allowance in the present case affords the defendant no just cause for complaint.

The

and moved that the cause be continued, un-
less counsel for the plaintiff would consent
that said affidavit be introduced as evidence
in the case. The plaintiff's counsel declined
to consent to the admission of the affidavit
in evidence and objected to the same.
court then overruled the motion for a con-
tinuance, and ordered that the parties pro-
ceed with the trial of the case. It is assign-
ed as error that the court abused its dis-
cretion in thus refusing to grant a continu-
ance. After the case had been postponed for
two days, upon the agreement of the defend-
ant's counsel that he would then be ready to
proceed, it was his duty to have been ready,
or to offer some explanation for his failure
to be so. So far as the record discloses no
excuse was given, or attempted, for failing
to keep that agreement. Had the deposition
been taken the trial could have proceeded.
If the defendant was unable to give the

fered. The defendant's counsel, without such excuse, renewed his original motion that the case be continued because of the illness of the defendant. The court upon these facts was entirely justified in refusing to continue the case.

When the case was called for trial on Ap-deposition, that excuse could have been ofril 28, 1908, the day for which it was assigned, counsel for the defendant moved for its continuance upon the ground that the defendant, who was an important witness, was confined to his house by illness and produced a certificate of a physician as to the illness. The cause had already, on more than one oc- Section 187 of the rules under the practice casion, been continued on motion of the de- act is for the benefit of the party opposing fendant, and a judgment by default had once a motion for a continuance. If ne requires been entered against him because of his it, a motion for a continuance on account of failure to appear, either in person or by at- the absence of a material witness must be torney, or in any way to explain his nonap- supported by an affidavit stating the name of pearance. The default had been opened and the witness and the particular facts which it the case had been pending for some years. is believed can be proved by him, with the It was the last case to be tried by the jury grounds of such belief. If the party opposin attendance. The court suggested that the ing the motion will admit that the absent case be postponed to the following day, be- witness would, if present, testify to the facts fore which time a reputable physician to stated in the affidavit, and will agree that be named by the plaintiff might examine the the same shall be received in evidence on the defendant and report his condition to the trial, the court may refuse to continue the court, and the defendant might produce in cause. Trial courts upon such applications court the physician whose certificate had al- for a continuance have doubtless in some ready been presented. Thereupon counsel cases, upon their own motion, required counfor the defendant moved that the cause be sel to prepare a statement of what the absent continued until Thursday, April 30th, agree witness would testify if in court, and upon ing that the cause should then proceed to the refusal of the opposing counsel to admit trial whether the defendant was present or that the witness would so testify have grantnot, and that if it should appear that the ed a continuance of the case. Where the defendant was to be prevented by illness court or the party opposing the motion thus from appearing in court his counsel would, require the statement, it is for the purpose on April 29th, notify counsel for the plaintiff of avoiding a continuance of the cause, and and on that day take the defendant's deposi- such is the purpose of the rule; but in the tion. The plaintiff's counsel agreed to this, present case the defendant volunteered the and the court continued the case to April statement manifestly for the purpose of ob30th. Counsel for the defendant did not taining a continuance. To permit a party take his deposition, or notify counsel for the to do this would be an abuse of the rule. plaintiff, but on April 30th appeared and The defendant's counsel knew in the present moved for the continuance of the cause upon instance that the plaintiff was entitled to betthe same ground as before, producing a phy- ter proof of what the defendant would tessician's certificate sworn to before a notary tify to. He had promised two days before public but did not produce the physician. that, if the defendant was unable to be in The court denied the motion. Thereupon court, his deposition should be taken upon counsel for the defendant prepared an af- notice to the plaintiff, so that he could be fidavit, signed and sworn to by himself, present and cross-examine. Having failed to wherein he stated what he believed the de- keep this agreement, and offering no explana

the affidavit of Mr. Waterman and Mr. Van Slyck filed herewith." The justice of the superior court before whom the case was tried and who acted upon said bill of exceptions struck out the words making reference to said affidavits in the second excep tion and allowed the bill of exceptions so altered.

The appellant claims that he is aggrieved by said alteration and has brought this proceeding to establish the bill of exceptions as filed by him. The ruling in question appears on page 612 of the transcript, as follows: "By the Court: I shall hold you to The other Judges con- your agreement, Mr. Waterman. Mr. Water

•For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

Action by Sarkis Krikorian, for himself and others, against the Rhode Island Company, for the death of plaintiff's decedent, alleged to have been caused by the negligence of defendant street railway company. There was a verdict for defendant, and plaintiffs bring exceptions. Overruled, and cause remitted for judgment on the verdict. Julius L. Mitchell, for plaintiffs. Joseph C. Sweeney, for defendant.

towards assenting creditors to administer the trust according to its provisions. But, as to nonassenting creditors, he owes no such duty, and they cannot legally complain if he gives up the trust and returns the property to the assignor, unless he does it with the intent and purpose thereby to defraud such nonassenting

creditors.

[Ed. Note. For other cases, see Assignments for Benefit of Creditors, Dec. Dig. § 210.*] 4. ASSIGNMENTS FOR BENEFIT OF CREDITORS (§ 44*)-ASSENT OF CREDITORS-DUTY TO SE

CURE.

an opportunity to assent thereto, then no special duty rests on either the assignor or the assignee to secure such assent.

PER CURIAM. This is an action of tres- lawfully made, and creditors have been seaWhen a common-law assignment has been pass on the case for the death of Annie Krik-sonably notified of the assignment and have orian, alleged to have been caused by the wrongful act of the defendant. There is proof that said person is dead; but there is no evidence concerning the cause of her death, and there is a failure of proof connecting the accident, which happened on August 21, 1905, with her death, which occurred January 1, 1906. The judge who presided at the trial properly directed the jury to return a verdict for the defendant.

The plaintiffs' exceptions are overruled, and the case is remitted to the superior court for judgment on the verdict.

(104 Me. 85)

THOMPSON et al. v. SHAW.

(Supreme Judicial Court of Maine. March 12, 1908.)

1. BANKRUPTCY (§ 9*)—EFFECT OF BANKRUPTCY ACT ON STATE LAW-ASSIGNMENT FOR CREDITORS.

When an assignor makes a common-law assignment of all his property, not exempt from attachment and execution, for the benefit of such of his creditors as may, after notice of the assignment, assent thereto, and a reasonable time is provided in the assignment for such assent, and the assignee accepts the trust, then such assignment, if bona fide, is lawful, and until assailed by some one claiming rights against it under the provisions of the United States bankruptcy law it stands as a valid transfer of the property described as conveyed

therein.

[Ed. Note.-For other cases, see Bankruptcy, Dec. Dig. 9;* Assignments for Benefit of Creditors, Cent. Dig. § 88.]

2. ASSIGNMENTS FOR BENEFIT OF CREDITORS (§ 193*)-OPERATION-RIGHTS OF CReditors. When a common-law assignment for the benefit of creditors assenting thereto has been lawfully made and creditors have been notified of such assignment, any creditor may assent to the assignment and secure a pro rata part of the property with the other assenting creditors, or may attack the assignment through bankruptcy proceedings against the assignor, or may attach by trustee process the property in the hands of the assignee, and thereby secure so much thereof as would not be needed to satisfy the debts of previously assenting cred. itors.

[Ed. Note. For other cases, see Assignments for Benefit of Creditors, Dec. Dig. § 193.*] 3. ASSIGNMENTS FOR BENEFIT OF CREDITORS (8 210*)-ADMINISTRATION OF ASSIGNED ESTATE-DUTY OF ASSIGNEE.

When an assignee accepts an assignment lawfully made to him by an assignor for the benefit of such of the assignor's creditors as may assent thereto, he thereby assumes the duty

[Ed. Note. For other cases, see Assignments for Benefit of Creditors, Dec. Dig. § 44.*] 5. ASSIGNMENTS FOR BENEFIT OF CREDITORS (§ 256*)-ASSIGNEE-ACCOUNTING-COUNSEL FEES.

lawfully made, the assignee has a right to emWhen a common-law assignment has been ploy counsel, and, when the assignment so provides, he may lawfully pay out of the trust funds in his hands all reasonable and necessary counsel fees.

[Ed. Note. For other cases, see Assignments for Benefit of Creditors, Dec. Dig. § 256.*] 6. ASSIGNMENTS FOR BENEFIT OF CREDITORS (§ 193*)-ADMINISTRATION OF ASSIGNED ESTATE-PAYMENT OF BONA FIDE CLAIMS.

lawfully made and a nonassenting creditor by When a common-law assignment has been trustee process attaches the property in the assignee's hands, such assignee will not be held chargeable for sums paid by him, prior to the service of the writ, to the bona fide creditors of the assignor in settlement of their just demands.

[Ed. Note. For other cases, see Assignments for Benefit of Creditors, Dec. Dig. § 193.*] 7. ASSIGNMENTS FOR BENEFIT OF CREDITORS (§ 193*)-ADMINISTRATION OF ASSIGNED ESTATE-RETURN OF PROPERTY TO ASSIGNOR.

When a common-law assignment has been lawfully made and a nonassenting creditor by trustee process attaches the property in the assignee's hands, such assignee will not be held chargeable for property returned by him to the assignor prior to the service of the writ, unless he returned it with the intent and purpose to defraud nonassenting creditors.

[Ed. Note. For other cases, see Assignments for Benefit of Creditors, Dec. Dig. § 193.*] 8. ASSIGNMENTS FOR BENEFIT OF CREDITORS (§ 161*)-VALIDITY-FRAUD-EVIDENce.

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 from successful efforts to compromise the claims of creditors after such assignment has been made.

[Ed. Note. For other cases, see Assignments for Benefit of Creditors, Dec. Dig. § 161.*] 9. SUFFICIENCY OF EXCEPTIONS.

When the bill of exceptions in an action of scire facias founded upon an original trustee process indicates that the whole case is to be considered by the law court, the exceptions need not specify the extent to which the law court may examine the case.

10. APPEAL AND ERROR (§ 497*)-BILL OF EXCEPTIONS-SUFFICIENCY.

Rev. St. c. 88, § 79, providing that, "whenever exceptions are taken to the ruling and decision of a single justice as to the liability of a

trustee, the whole case may be re-examined and determined by the law court, and remanded for further disclosure or other proceedings, as justice requires," applies alike to scire facias and original proceedings in trustee process, and, when exceptions are taken in an action of scire facias founded upon an original trustee process and the exceptions indicate that the whole case is to be considered, the law court has authority to correct any error in the judgment rendered by the court below whether of law or of fact. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 497.*]

parties of the third part, within sixty days of the date hereof, and after the payments above mentioned, and hereinafter stated and made to pay the surplus to the party of the first part.

"And it is further agreed that the said trustee shall out of the trust estate pay all the costs and expenses of carrying out the trust herein declared, including a reasonable compensation for the trustee herein named, and for the services of an attorney when 11. VALIDITY OF COMMON-LAW ASSIGNMENT such services become necessary, and to pay FOR BENEFIT OF CREditors. In the case at bar, held, that the common-all claims entitled to priority under the inlaw assignment to the defendant was not fraud- solvent laws of Maine, in so far as such laws ulent, and that prior to the service of the orig- are not repugnant to or have not been superinal trustee writ upon him he had lawfully seded by, the bankrupt laws of the United discharged himself of all the property received by him from the assignor except $182.66, and for that sum only the plaintiffs should have judgment.

(Official.)

States.

"And said Frank L. Shaw agrees to accept said trust and execute the same according to the provisions of this instrument and agreeably to law. And the creditors, whose names are hereunto subscribed, agree to said as

Exceptions from Supreme Judicial Court, Washington County. Scire facias founded upon an original trus-signment, and to receive their proportional tee process by Cyrus Thompson and others against Minnie A. Dyer, as principal defendant, and Frank L. Shaw, as trustee. Judg ment for plaintiff against defendant trustee, and the trustee excepts. Exceptions sustained.

part of said property in full of all their claims against said party of the first part, forever discharge said party of the first part and upon payment thereof to relieve and from their respective claims. To the covenants and agreements hereof the respective parties bind themselves and their legal rep

Scire facias founded upon an original trus-resentatives. tee process brought by the plaintiffs against "In testimony whereof, we the said parone Minnie A. Dyer, as principal defendant, and Frank L. Shaw, trustee. The question of the trustee's liability upon his attempted disclosures in the original suit was before the law court in Thompson et al. v. Dyer, 100 Me. 421, 62 Atl. 76, in which he was charged generally as trustee. In the scire facias proceedings the defendant was allowed to disclose anew. See Rev. St. c. 88, § 72.

The common-law assignment, referred to in the opinion, is as follows:

ties of the first, second, and third parts hereunto set our hands and seals on the sixth day of October, A. D. 1899, the said parties of the third part adopting and using one common seal. The signature of any duplicate copy hereof of the same tenor to be of like effect as if signed hereto.

"Minnie A. Dyer. [Seal.] "Frank L. Shaw. [Seal.]"

This assignment was duly acknowledged by Minnie A. Dyer before Joseph W. Leathers, a justice of the peace.

Heard at the April term, 1907, Supreme Judicial Court, Washington county. After hearing, the presiding justice rendered judgment against the defendant trustee for the amount of the plaintiff's judgment against Minnie A. Dyer, the principal defendant in the original suit, to wit, $404.57 and costs, and thereupon the defendant trustee excepted.

The case appears in the opinion.

"Know all men by these presents, that I, Minnie A. Dyer, of Milbridge, in the county of Washington and state of Maine, doing business under the firm name of Dyer's Grocery, as party of the first part, in consideration of one dollar paid by Frank L. Shaw, of Machias, in said county, party of the second part, and of the trust herein expressed, do grant and assign to the said party of the second part all my property, estate, rights, and credits of every description, both individual property and property of said firm of Dyer's Grocery, except such as is by law exempt from attachment and execution, to have and to hold the same to the said Frank L. Shaw in trust to sell and dispose of the said property to the best advantage, and collect and convert into money said debts and demands, and to proceed with said property according to law, and make a proportional distribution of the net proceeds thereof among such creditors of said party of the first part as shall become parties to this assignment, as The facts and circumstances leading up to

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, SPEAR, and KING, JJ. Howard R. Ives, for plaintiffs. William R. Pattangall, for defendant.

KING, J. This is an action of scire facias founded upon an original trustee process brought by the plaintiffs against Minnie A. Dyer, as principal defendant, and Frank L. Shaw, trustee.