in giving testimony favorable to defendant, though it tended to show their own bad faith, and to stultify their conduct in the premises. record we are not prepared to say that the conduct of Bliss is inconsistent with the theory that he did not participate in the fraudulent purpose of the Grouts, if such 5. But the main controversy in this case purpose actually existed at the time the is as to the sufficiency of the evidence to in- sale was made. He may have honestly validate the transfer to Jensen, Bliss & Co. striven simply to procure that precedence upon the ground of fraud. Was that con- for the firm he represented, which, in a race tract entered into, and did the transaction between creditors, the law permits. His take place with intent, by both parties, to subsequent conduct is in accord with this hinder, delay, or defraud the creditors of view. As the agent of Jensen, Bliss & Co., Mrs. Grout, or Sherman S. Jewett & Co., he refused to recognize or pay the claims of one of those creditors? Certain alleged certain other local creditors, and persistfacts and circumstances are relied upon by ently declined to acknowledge any reserved plaintiff in error as establishing such intent, or contingent interest of the Grouts in the The entire stock of goods was transferred goods, or any part thereof. The burden to a single creditor, leaving all other claims was upon defendant to show, by a preponwholly unsatisfied. Bliss took advantage derance of evidence, the fraudulent transfer of the knowledge that Jewett & Co.'s as alleged. To invalidate the transaction agent was pressing for a settlement, and upon this ground, proof establishing an inthat the affairs of the Grouts were conse- tent by the grantor to hinder, delay, or dequently in a hazardous condition. He first fraud his creditors was, alone, not suffiprocured a postponement of definite action, cient. Satisfactory evidence of collusion in and then proceeded on Sunday to negotiate the fraudulent intent by Bliss, the granfor the alleged sale, which was consum-tee's agent, was necessary. The court bemated early Monday morning. The absurd low saw the witnesses, and was therefore and suspicious fiction of giving Mrs. Grout more competent than we are to judge of the check of Jensen, Bliss & Co. for the their credibility, and pass upon the mateamount represented by the bill of sale was rial conflicts in their testimony. We shall resorted to, the check being immediately in-decline to overrule its finding in the premdorsed and redelivered to Bliss. An invoice ises. The judgment is affirmed. taken by Mr. Grout shortly previous to the ELLIOTT, J. I concur in the foregoing transaction showed an alleged valuation of $6,319.08, or upwards of $1,000 more than opinion except as to the jurisdiction of the twice the amount of the Grout indebtedness superior court over the property in the custo Jensen, Bliss & Co. Mr. Grout and certody of the United States marshal under tain other witnesses testify to conversa-process from the federal court. As to that tions with Bliss at or about the time of the question, my views are expressed in the case alleged sale in which the latter intimated of Mitchell v. Smith, 12 Colo., supra, and or admitted, as it is claimed, that the sale need not be repeated. was made for the purpose of defeating collection of their demand by Sherman S. Jewett & Co., also that Mrs. Grout might receive some other or further benefit or advantage through the transaction. On the other hand, the evidence clearly shows that there was a bona fide indebtedness to Jensen, Bliss & Co. of $2,650, the consideration mentioned in the bill of sale; only $209.24 of the amount being controverted by the Grouts. A portion of this indebtedness, it is true, might be termed conditional, being in the form of indorsements upon nego- of the patent by virtue of section 2336, Rev. St. U. 2. A true cross-vein is excepted out of the grant tiable paper. But it was strongly probables. And, whether a junior or a senior location, it at the time of the sale that the company is not affected by failure to adverse, except at the would be obliged to take up these notes, point of actual lode intersection. But section 2314 and, as a matter of fact, they did so short- does not ex proprio vigore reserve out of the grant ly after. A second invoice of the goods, rights other than cross-veins acquired prior to the taken a few days subsequent to the sale, act of 1872, but secures the protection of such gave a valuation of $3,280.82. The stock rights to those who avail themselves of the adverse procedure prescribed by the act itself. had been purchased at different times, some 3. The crossing of lodes does not mean the of it had been on hand for an extended pe- crossing of two patents, but the actual crossing of riod, and it was known in mercantile par- the two veins themselves. lance as a "broken stock." These and 4. Veins which unite, but do not cross each other existing causes tended to reduce its other, are within the exception of section 2336 wholesale value. Bliss emphatically denies when they unite on the "dip," or in their downthe declarations imputed to him, intro-ward course; but not when they unite on the duced to show a fraudulent purpose on his word "below, " in section 2336, does not mean "be"strike," or on their horizontal extension. The part in connection with the transfer, and yond." claims that he pursued the course he did 5. It was the design of the act of 1872 (sections with the sole intent, and for the sole pur-2325, 2326, Rev. St. U. S.) to have all conflicts, so pose, of protecting the firm he represented far as practicable, settled by the issuance of the against loss on account of the Grout indebt-patent through the adverse proceedings therein edness. The transaction as thus disclosed provided for. LEE et al. v. STAHL. (Supreme Court of Colorado. Sept. 13, 1889.) MINES AND MINING-APPEAL-MANDATE and Pro CEEDINGS BELOW. 1. When the law governing a case has been once declared by the opinion of an appellate court on a direct appeal or writ of error, such opinion, on the retrial of the same case upon the same state of facts, is higher authority than stare decisis; it is res judicata, so far as the particular action is concerned. is not free from suspicion. Some of the in- (Syllabus by the Court.) Appeal from district court, Jefferson county. For opinion on former appeal, see 11 Pac. | unite, the oldest or prior location shall Rep. 77. Belford & Wickoff, for appellants. C. C. Post and R. S. Morrison, for appellee. take the vein below the point of union, including all the space of intersection." Also section 2344, which provides that “nothing contained in this chapter shall be conELLIOTT, J. Ernest Stahl, the plaintiff strued to impair in any way rights or interbelow,commenced this action in 1878, alleg-ests in mining property acquired under exing his ownership in fee of the Lone Tree isting laws." lode, and complaining that the defendants As we understand the views of counsel, it had ousted him therefrom, and still unlaw-is contended on behalf of plaintiff that defully withhold the possession thereof. The fendants, though they may have the prior case has been several times tried in the dis-location, yet, not having adversed plaintrict court, and this is the second time it has been before this court on appeal. The plaintiff's patent from the United States to the Lone Tree lode shows the date of entry at the land-office to have been April 30, 1873. Defendants' patent to the Argentine shows the date of entry to have been July 3, 1875. Defendants claim to have made the discovery and location of the Argentine in 1865, prior to the discovery and location of the Lone Tree, and to have complied with all the laws, state and federal, and all the local rules and regulations respecting such loca-in Branagan v. Dulaney, 8 Colo. 408, 8 Pac. tions; and that the vein of the Argentine is the premises from which plaintiff claims to have been ousted. This claim was denied by plaintiff. The territory described in the two patents cross each other; but whether or not there is an actual crossing of the two veins within the limits where the two patents so cross each other was the principal question of fact in controversy on the trial. Defendants did not adverse plaintiff's application for a patent. tiff's application for a patent, they have forfeited all their rights within the surface lines of plaintiff's location; while in behalf of defendants it is claimed that their discovery and location, being prior to that of plaintiff, and prior to the passage of the act of May 10, 1872, all their rights and interests are saved by section 16 of said act. Section 2344, supra. This latter view seems to be supported by the opinion of the supreme court of California in the case of Mining Co. v. Spring, 59 Cal. 304. But this court, Rep. 669, as well as on the former appeal in this case, (Lee v. Stahl, 9 Colo. 208, 11 Pac. Rep. 77,) has announced a doctrine somewhat different from either of the foregoing views. The former opinion in this case should now be regarded as "the law of the case," at least in this court, so far as it is applicable to the matters assigned for error on this appeal. We would not feel warranted in departing from it in determining the rights of the parties to this action. This action involves the construction of When the law governing a case has been certain sections of the act of congress of once declared by the opinion of an appelMay 10, 1872, relating to mineral lands of late court on a direct appeal or writ of erthe United States, and particularly sec- ror, such opinion, on the retrial of the same tions 3, 6, 7, 14, and 16, which are here re- case, upon the same state of facts, is higher ferred to by number as they appear in the authority than the rule of stare decisis; it United States Revised Statutes, to-wit: is generally regarded as res judicata, so far Section 2322, which provides, in substance, as the particular action is concerned. Dathat locators of mining locations hereto- vidson v. Dallas, 15 Cal. 75; Tunnel Co. v. fore made, or which shall hereafter be made, Stranahan, 21 Cal. 548. See opinion of Mr. on any mineral vein, lode, or ledge situated Justice BELFORD in Mining Co. v. Bank, on the public domain, their heirs and as-2 Colo. 266. According to such former opinsigns, where no adverse claim exists on ion, as well as the opinion in the case of May 10, 1872, so long, as they comply with Branagan v. Dulaney, supra, defendants, the laws of the United States and with lo- having secured a patent for the Argentine cal regulations governing their possessory location, if they can prove that the vein title, shall have the exclusive right of pos- thereof actually intersects or crosses the session and enjoyment of all the surface in- Lone Tree vein, are entitled to follow the cluded within the lines of their locations, and vein of the Argentine, and extract the ore of all veins, lodes, and ledges, throughout therefrom within the side lines of their own their entire depth, the top or apex of which location, and within the patented limits of lies inside of such surface lines, extended the Lone Tree location, except within the downward vertically, although such veins, space of actual intersection of the two lodes, or ledges may so far depart from a veins, including a right of way through the perpendicular in their course downward as Lone Tree vein, notwithstanding they did to extend outside the vertical side lines of not adverse the plaintiff's application for a such surface locations. Also sections 2325 patent to the Lone Tree lode; but they canand 2326, which prescribe the mauner in not maintain the right to the mineral withwhich patents may be obtained for lands in the space of lode intersection, nor other containing valuable deposits, and for set- rights which they may have had by virtue tling conflicting or adverse claims to any of a prior location, because they did not as such locations. Also section 2336, which sert and secure the same by adversary proprovides that, "where two or more veins ceedings, as provided by the act of conintersect or cross each other, priority of gress; a failure so to assert such rights betitle shall govern, and such prior location ing deemed a waiver of them. Hence, if deshall be entitled to all ore or mineral con- fendants have a true cross-vein, plaintiff tained within the space of intersection; but cannot maintain ejectment therefor, or oththe subsequent location shall have the right erwise restrain them from working the of way through the space of intersection for same, so long as they confine themselves the purposes of the convenient working of thereto, and keep within the side lines of the mine. And where two or more veins their own location, and do not attempt to should find on all other points for the plaintiff, even if they should find that there was a crossing of the veins; for, if they should find on all other points for the plaintiff, that would include a finding that defendants had ousted plaintiff from his own pat the Argentine vein actually crosses the same, or at the space of intersection, for purposes other than a mere right of way. Error is assigned upon the following instruction given on the trial: "If the jury believe from the evidence that the Argentine lode runs westerly from its discovery into the Lone Tree lode, and verges into it, and does not cross it, but that the two lodes become one and the same lode, that in such case the oldest patent entry-that is, the Lone Tree-is entitled to the vein and ground as far as the apex of the vein is within its patent; and this is the case lodes or only one lode." Upon the theory that only cross-veins and veins which unite in their downward course are excepted out of the grant in case of a failure to adverse, this instruction is not erroneous. take the ore from the space of lode inter-should also be for the plaintiff in case they section with the Lone Tree; for to this extent defendants' cross-vein is excepted out of the grant, and is not lost by a failure to adverse plaintiff's application for a patent. But it is not the doctrine of this court that section 2344 ex proprio vigore, operates to reserve out of the grant other rights ac-ented limits at some place other than where -quired prior to the passage of the act of 1872, but that it secures the protection of such rights at the time of the issuance of the patent to those who avail themselves of the adverse procedure prescribed by the act itself. It is also claimed in behalf of defendants, that they are entitled to the same rights, without adversing, in case the veins unite, as in case of their actual crossing; and that section 2336, supra, should be so construed. The argument is that the words "below the point of union," in said section, apply to veins uniting on the "strike," or on a horizontal extension, as well as to veins which unite on the "dip," or in their down-whether east of such point there are two ward course; and that the word "below" should be construed as equivalent to "beyond." But this is not the ordinary signification of the word. Both words are of common use. Their meaning is plain, simple, and well understood. It was well known at the date of the passage of the act that veins unite on their horizontal extension as well as in their downward course. Hence we would not be justified in assuming that congress committed the palpable mistake of using the word "below," instead of the word "beyond," if they really intended to give the preference to the prior locator in case of veins uniting on the "strike," as well as on the "dip," after the point of union is reached, without regard to adverse proceedings. The reason for the distinction is obvious. In controversies re-crossing of the two veins themselves; and, specting the union of veins on their horizontal extension there will be conflict in their surface limits, but veins may unite in their downward course without any surface conflict. Hence, the union of veins of the former class being usually on or near the surface, the conflict will ordinarily be apparent at the time of the application for the patent; and it was evidently the design of the act of 1872 to have all conflicts, so far as practicable, settled by the issuance of the patent, through the adverse proceedings therein provided for. But in case of the union of veins in their downward course, such conflict might not be foreseen or anticipated at the time of the application for the patent. Hence the provision in the latter case, that when the point of union is reached the oldest or prior location should take the vein below such point, including all the space of intersection. The trial court also charged the jury to the effect that the priority of discovery between the Argentine and the Lone Tree lodes had nothing whatever to do with their decision. This instruction was not error when we consider that defendants' rights, if they have any, must be saved on the ground that they have a cross-vein which is excepted out of plaintiff's grant. and not on the ground of a prior location. The jury were instructed, in substance, that the crossing of lodes does not mean the crossing of two patents, but the actual further, that if they should find from the evidence that there is such an actual crossing, then the defendants are entitled to their own vein within the conflicting area of the two patents through the space of intersection; but that such a crossing would not entitle them to leave their own patent and follow the Lone Tree lode. They were also further instructed that, if they should find there was such a crossing, to render a special verdict to that effect, specifying the point of crossing. These instructions were in substantial conformity to the views of this court in the two opinions above cited. As the jury did not return such special verdict, specifying the point of crossing, we must assume that in their judgment the evidence did not warrant such a finding. Had the jury found that there was an actual crossing, and rendered a verdict accordingly, the judgment of the court would doubtless have been such as to protect the defendants in working their cross-vein in accord by this court. As the verdict was general for the plaintiff, we see no error in the judgment, and it is accordingly affirmed. There was no evidence or attempt to show that the Argentine and Lone Tree veins unite with each other in their down-ance with the law as heretofore laid down ward course. The burden of proving that the two veins actually cross each other devolved upon the defendants; for, having failed to adverse plaintiff's application for a patent, in no other way could they show that they had prior rights within the limits HAMILL V. GERMAN NAT. BANK. of the Lone Tree patent which were ex- (Supreme Court of Colorado. Sept. 20, 1889.) cepted out of the grant; hence there was no PAYMENT-DISMISSAL OF ACTION. error in the charge of the trial court in this Suit having been instituted upon a promis regard. Neither was it technically errone-sory note against a defendant as assignor, he trans ous to instruct the jury that their verdict mitted to the plaintiff by mail a draft in part pay. ment upon said note, accompanying the same with a written request to dismiss such suit. Held, that the acceptance of the draft by plaintiff under the circumstances did not entitle the defendant to a dismissal of the suit as a matter of right, but that the plaintiff might prosecute the suit to judgment, notwithstanding such request. (Syllabus by the Court.) Appeal from district court, Arapahoe county. plaintiff for the sum of $576.87, and costs of suit. To review this judgment the case is brought here by appeal. R. S. Morrison, for appellant. James H. Brown, for appellee. HAYT, J., (after stating the facts as above.) At the trial all the allegations of the complaint were either directly conceded to be true by the defendant or proved by Appellee, as plaintiff, filed his complaint the uncontroverted evidence offered on the in the court below in substance alleging: part of the plaintiff; the defendant relying (1) The corporate capacity of the plaintiff. for a defense to the present action upon the (2) That on September 20, 1880, one W. Wil-alleged agreement of plaintiff to dismiss let Rose made and executed the following note: "$1,000. Georgetown, Colo., 20 Sept., 1880. Four years after date I promise to pay to W. A. Hamill, or order, the sum of one thousand dollars, for value received, negotiable and payable, without defalcation or discount, at the office of W. A. Hamill, Georgetown, Colo., with interest at the rate of ten per cent. per annum from date until paid. Due Sept. 23rd, 1884. W. WILLET ROSE," said note bearing indorse-tain P. N. made by one W. Willet Rose, payments in the following order, to-wit: "W. A. HAMILL, O. H. ROTHACKER, G. G. SYMES." (3) That before maturity, the defendant, for value received, indorsed it to 0. H. Rothacker, and Rothacker to plaintiff. (4) That the maker, Rose, has been at all times insolvent. (5) That on October 29, 1884, plaintiff brought suit in the district court of Arapahoe county, and on December 12, 1884, obtained judgment against Rose, and immediately issued execution, which was returned, after diligent search, nulla bona. (6) That no payments had been made on the note. the suit. The only evidence offered in support of such an agreement is contained in the following letter, introduced by appellant, and acknowledged by the parties to be the letter which accompanied the 1,000dollar payment: "London, England, March 30, '86. J. A. Cooper, Esq., Cashier, German National Bank, Denver, Colo.Dear Sir: On the eve of leaving for Europe last October, I spoke to you about a cerable to my order, for one thousand dollars, which, through O. H. Rothacker, fell into the hands of Judge Symes, and was discounted for him by your bank. You, I presume, are quite aware that I loaned Rose the money the face of the note calls for. I never received one cent for it, either from Rothacker or Judge Symes. It is somewhat 'tough' that one loans money, and has to pay the same over again. There was, as I believe, some understanding between Rothacker and Symes that services rendered by the former would have some consideration with the latter, and with By the original and supplemental an- this idea in my mind, I had hoped that swers, then, taken together, the defendant, Judge Symes would bear part of the loss. after taking issue upon all the material alle- Mr. Morrison, my attorney, has promised gations of the complaint, alleged that, with your attorneys that I would settle the the exercise of proper diligence, "the note claim. With this end in view, I now iror the money thereon could have been made close you draft on the Colorado Mortgage out of the property and estate of the said and Investment Company, Limited, payW. Willet Rose;" and for a further defense able to your order. Kindly instruct your it was alleged: (1) "That on, to-wit, the attorneys to dismiss the suit now pending. 30th day of March, 1886, the defendant I expect to be in Colorado within the next mailed to the plaintiff from the city of Lon-sixty days, when I will call on you and pay don, in England, a bankable draft for the the balance. Yours, truly, W. A. HAMILL." sum of one thousand dollars, accompanied Appellee indorsed the money as payment by a letter by which the said draft was of- pro tanto upon the note, refused to disfered in payment on account of the plain-miss the suit, but prosecuted the same to tiff's demand in the above-entitled case, then judgment. Appellant appeals on the in controversy between them; said sum to ground that the payment was conditional; be accepted and received by the plaintiff and, having accepted the same, appellee upon condition that the said suit should was bound to the condition." Thus it will be dismissed, and time extended to the de- be seen that the sole question presented for fendant to settle and arrange and pay off our consideration may be stated as follows: the balance of the amount in controversy.' Did the acceptance of the $1,000, under the (2) "That said draft came accompanied by circumstances, entitle appellant to a dissaid letter by due course of mail, and was re-missal of the suit? In support of the afceived and accepted by the plaintiff on, towit, the 14th day of April, A. D. 1886,upon and under the conditions of the letter accompanying the same, and thereupon the plaintiff agreed to accept said sum, and did accept said sum, as part payment as aforesaid, and agreed to cause said suit to be dismissed." (3) "That the plaintiff thereafter, upon demand made, refused either to dismiss the said suit or to return the draft aforesaid." The plaintiff having filed its replication denying all the new matter set up in the answer, a trial was thereafter had, which resulted in a verdict and judgment for the 66 firmative of this proposition, appellant relies upon the following cases. Berdell v. Bissell, 6 Colo. 162; McDaniels v. Bank, 29 Vt. 230; Preston v. Grant, 34 Vt. 201; Bull v. Bull, 43 Coun. 455; Potter v. Douglass, 44 Conn. 541; Elton v. Johnson, 16 Conn. 253; Lyman v. Rasmussen, 7 N. W. Rep. 687; Railroad Co. v. Smith, 50 Mich. 112, 15 N. W. Rep. 39; McAfee v. Fisher, 64 Cal. 246; Libby v. Hopkins, 104 U. S. 303. The first five of these cases are cited upon the law of accord and satisfaction, and have no application to the facts presented in this case, as the letter from Hamill, containing, as it constructive fraud. Commissioners' decision. Appeal from district court, San Juan county. does, an express promise to pay the bal- there is a failure to enter the judgment of record ance, shows that the payment of the $1,000 for the purpose of giving the debtor a fictitious by draft was not to be in complete satisfac-financial standing, and to enable him to perpetrate tion of his liability upon the note. There fraud by obtaining credit, the whole transaction was no dispute at the time, nor is there may, at the suit of other creditors, be set aside as now, as to the amount of the liability; nor 3. The written confession of judgment having is this case like Elton v. Johnson, supra, in been kept secret by the parties thereto, lest the which a guarantor sought to escape liabil- debtor's credit might be injured, any representa ity upon the plea that there was no consid- tions thereafter made by the debtor to obtain eration for his guaranty; nor is there any against the judgment creditor to set aside the credit from others are admissible in an action question here of the misapplication of mon-judgment for fraud, under the rule that represeney, as in Railroad Co. v. Smith, and Libby tations made by one are binding on others with v. Hopkins; nor is there any question in whom he is in collusion. reference to the time of maturity of the instrument, as in McAfee v. Fisher; and the case is also unlike the case of Lyman v. Rasmussen, in which it was decided that "a By the complaint in this cause it is alleged valid agreement to extend the time of pay- that plaintiff, on March 25, 1884, was a credment of a debt is a defense to an action on itor of H. P. Walton, in the sum of $4,040, the debt during the time of the extension." evidenced by a promissory note dated DeThe letter of Hamill, transmitting the cember 1, 1883. That on March 25, 1884, draft, shows that the amount was to be judgment was obtained and execution iscredited upon the note, and contains a dis- sued, and levy made upon certain chattel tinct promise to pay the balance. Although property. That a long time prior to the letter contains a request upon the cash- March 25, 1884, H. P. Walton was insolvier to have the suit dismissed, there is noth-ent. That on said day, apprehending that ing in the letter indicating that the payment was to be made upon this or any other condition. The letter will not admit of any construction other than that the payment was made unconditionally, while the request upon Mr. Cooper to dismiss the suit was one which the appellee might grant or refuse at its pleasure. Certainly the acceptance of the money under these circumstance did not entitle appeilant to a dismissal of the suit as a matter of right. Appellee having elected to prosecute the suit to judgment, as it had a perfect right to do, we see no reason why the judgment should be disturbed, and it is accordingly affirmed. appellee would sue and attach his property, he, with intent to cheat, hinder, delay, and defraud his creditors, confessed a judg ment of the sum of $8,182.50 in favor of E. T. Walton, his brother, and thereby gave undue preference to him; and E. T. Walton sued out an execution on said day, and levied on the same property levied upon by the plaintiff, but prior to the levy of plaintiff's execution. That H. P. Walton had no other property subject to execution. That this judgment so confessed is fraudulent and void as to plaintiff and other bona fide creditors, because H. P. Walton, on June 1, 1885, was insolvent, and that E. T. Walton knew that fact. That on June 1, 1883, an agreement was made between H. ELLIOTT, J., having presided at the trial P. Walton and E. T. Walton to the effect below, did not sit upon this appeal. WALTON V. FIRST NAT. BANK. 1. In an action to set aside a judgment by confession for fraud it appeared that the judgment creditor and debtor were brothers, and that the latter owed the former, and was also owing plaintiff, and was unable to pay his debts. To secure his brother he had signed a confession of judgment some time before the judgment in question, but it had been agreed between the brothers that the judgment should not be entered of record lest it might injure the debtor's credit, and that he should keep his brother's attorney informed of his affairs, so that any movement by the other creditors to seize the property might be anticipated. With this understanding the debtor borrowed from his brother $1.500 more. He also obtained credit from plaintiff by representing that his brother had no security, and would not press him. On the day the debtor confessed judgment the last time plaintiff sued in attachment, but the writ was levied subsequent to the levy of an execution to satisfy the confessed judgment. Held, that a finding by the court that the debtor was insolvent at the time judgment was confessed, and that the judgment was void as against plaintiff, would not be dis turbed. 2. In the absence of statutory restrictions, a debtor may lawfully prefer one creditor, and a confession of judgment for a lawful debt under such circumstances is not of itself fraudulent; but when that H. P.Walton would protect E. T. Walton at all hazards; and for the purpose of carrying out this agreement it was to be kept secret from all parties except the attorney E. T. Walton. H. P. Walton, on June 19, 1883, gave a confession of judgment in favor of E. T. Walton for the sum of $11,180, coverE. T. Walton. This confession of judging moneys advanced and notes indorsed by ment, it was agreed between them, should be kept secret, and should not be filed in court. That it was to be held and acted upon in case an emergency should arise. That the purpose of this was to give H. P. Walton a false and fictitious credit and commercial standing which he was not entitled to, and could not have obtained if these facts had been known. That afterwards the confession of judgment on June 19, 1883, became inoperative by reason of further advances made by E. T. Walton, and in order to carry out the agreement of June 1, 1883, the confession of judgment of March 25, 1884, was executed. That, when H. P. Walton obtained the loan from the bank, he represented that his indebtedness to E. T. Walton was a book-account, and for the sum of $6,000, and that E. T. Walton had no security for it, and under no circumstances would press him or enforce the collection. That, relying upon these representations, the loan was made. Prays that the proceeds of the sale of the chattels lev |