Lucas Common Pleas. tive proof however, is not exactly as would be necessary upon a final hearing of the case, since the effect of requiring such strictness of proof might be to prevent the dissolution until the final hearing. High on Injunctions, sec. 1470. It is claimed by the plaintiffs that the real purpose of the buyers of this stock in investing their money in the same, was to gain control of The Woolson Spice Company and so use that concern in the production and sale of coffee as to compel The Arbuckle Brothers to keep out of the sugar refining business; but this simply means that the intention of the buyer was to put roasted coffee upon the market in such quantities and at such prices as would, under the laws of trade, take from Arbuckle Brothers the business which theretofore they had been able to hold, by reason of their ability to actually dictate the lowest price at which roasted coffee should be sold to consumers; and thus make Arbuckle Brothers either concede to the American Sugar Refining Company a monopoly in the sugar business, or submit to a possible destruction of their own monopoly of the coffee business. Now one monoply of a necessity of modern life is entitled primarily to no more consideration than another; but how such purpose, though entertained by the controlling stockholders of The Woolson Spice Company, in view of the evidence in this case, can be deemed a misuse of corporate power in the sense contended for by plaintiffs, when the legitimate objects of the company's creation are being accomplished at the same time, is difficult to understand. Nor do I see, as councii for plaintiffs seem to contend, that an agreement of the majority stockholders to sell the product of the corporation, for a time, at such price as to drive a competitor out of business, will make the corporation an unlawful conspiracy against such competitor, and all parties connected therewith personally liable to him for damages for his actual loss, or entitle him to appeal to a court of equity to restrain a threatened injury of this kind. A competitor for public favor, in disposing of his wares, must bow to that law of trade of that allows every man to dispose of his own property in the ordinary course business, on such terms as he sees fit. Courts of justice can take no notice of injuries of this character. Many questions of interest and importance, touching upon the law applicable to this case, in almost all of of its possible phases, have been argued at length by counsel for the respective parties, with great learning and ability; but I have not found it necessary nor profitable to more fully consider the legal question involved, at this time. The question of the right of the plaintiffs to a continuance of the restraining order until the final hearing of the cause, in view of well established rules of law, depends upon the proof of the facts stated in the petition; and as the evidence satisfies me that the facts upon which plaintiffs must stand to Kuhn v. Woolson Spice Co. entitle them to the relief heretofore given, have been substantially disproved, the motion for the dissolution of the restraining order will be granted; and the plaintiffs' motion for the appointment of a receiver, will be overruled. John F. Kumler and A. L. Smith, attorneys for plaintiffs. CONSTITUTIONAL LAW-INSOLVENCY LAWS [Clinton, Common Pleas, July 1900.] IN RE ASSIGNment of Joseph W. Summers. 1. CONSTITUTIONAL LAW-ACT RELATING TO CONVEYANCES BY INSOLVENTS. Section 6343 Rev. Stat., as amended 39 O. L, 290 and 291, providing that every sale, conveyance, transfer, mortgage or assignment made by a debtor or debtors in contemplation of insolvency shall be void, or, in the event of a deed of assignment for creditors being filed within ninety days after the giving thereof, shall be void, if such debtor or debtors were actually insolvent at the time of such giving and providing that nothing therein contained shall affect any mortgage made in good faith to secure any debt or liability created simultaneously with such mortgage, if the same be properly filed, as therein described, is constitutional. 2. SECTION 6344, Rev. STAT, IS ALSO CONSTITUTIONAL. Section 6344, Rev. Stat., as amended 39 O. L, 290 and 291, providing that any creditor as to whom any of the acts in sec. 6343 are void may commence an action to have such acts declared void, and any assignee shall bring suit to recover all property so sold, conveyed, mortgaged or assigned, or in case of his failure to commence such suit, upon notice to do so by a creditor, such creditor may himself commence such suit, is constitutional. 3. MORTGAGE BY INSOLVENT-VALIDITY A chattel mortgage given by an insolvent person to a bank to secure a certain sum of money, within ninety days before making an assignment for creditors, a part of which sum was an old debt owed by the insolvent to the bank, and a part was for money advanced by the bank to the insolvent at the time of the giving of the mortgage, is void as to the pre-existing indebtedness and valid as to the money so advanced. BROWN, J. This matter comes before the court on appeal from the probate court. Joseph W. Summers made a general assignment for the benefit of his creditors to E. J. Hiatt and the same was duly filed in the office of the probate judge of said county on November 29, 1899, at 12.40 P. M. Hiatt forthwith qualified as assignee and has been acting as such. On December 12, 1899, the assignee applied to the probate court for an order of sale of the personal property, the personal property was sold and before distribution, the New Vienna Bank, claiming to be a creditor, on January 22, 1900, was made a party defendant and leave was granted to plead forthwith. And thereupon it filed its answer and cross-petition. It avers that it is a partnership organized under the laws of Ohio for the purpose of carrying on a banking business, waives the issuing and Clinton Common Pleas. service of summons and voluntarily enters its appearance, and avers that the said Joseph W. Summers is indebted to it in the sum of one thousand dollarson a promissory note, dated November 27, 1899: that at the time of the delivering of said note, the said Summers executed and delivered to it a chattel mortgage upon the following described goods and chattels : 135 hogs, 25 long yearling steers, and 25 yearling steers, all being on the farm of said Summers in Greene township, Clinton county, Ohio, and sets up the condition of the mortgage, that the mortgage was duly filed at 12.30 P. M. on November 27, 1899; that the bank had no other security therefor and asks the court to determine the amount due upon the note and asks for payment from the fund. The assignee files an answer to this pleading, admitting that the bank is a partnership, averring that he knows nothing of the various matters set forth in the cross-petition and therefore denies them. For a second defense, says that the note, for a thousand dollars set up by the bank represented a old debt which was simply renewed about September 27, 1899 for the purpose of giving said New Vienna Bank a preference for the exclusion in whole or in part of the other creditors of Summers; that Summers was, on November 27, 1899, insolvent; that on November 28, at 12.40 P. M., he made a general assignment to the said E. J. Hiatt, who forthwith qualified and is now the assignee; that the execution and delivery of the mortgage to the bank was with the intent to hinder, delay and defraud the other creditors of Summers; denies that the mortgage evidences any new debt or liability created simultaneously with the mortgages, but avers that the sole consideration for the mortgage is a prior debt, and that no new debt or liability whatever was created at the time of the execution and delivery of the mortgages; and prays that the mortgage may be set asside and the property conveyed thereby may be ordered distributed among the general creditors of said Summers. The bank replied by denying all the allegations contained in the answer of the assignee. On March 21, the probate court found upon the law and the evidence in favor of the said assignee on his said answer and that the mortgage set out in the cross-petition of the bank was given to secure a preexist ing indebtedness of the said Summers and for the purpose of giving the said bank a preference to the exclusion in whole or in part of the other creditors; that Summers was, on November 27, 1899, insolvent, that the assignment was made on November 29, and that the mortgage was made to hinder, delay and defraud the other creditors of Summers, and that the mortgage is void and of no effect as against the other creditors of Summers, and thereupon vacates and sets aside and cancels the mortgage and renders judgment for costs against the bank. Thereupon a notice of appeal is given, appeal bond fixed and given by the bank and the matter comes into this court. In re Summers. A hearing was had and after the close of the testimony, counsel for the bank filed a demurrer to the answer and cross-petition of the assignee upon the following grounds: "1. Said probate court had no power or jurisdiction to determine the issues presented in said answer and cross-petition touching the validity of said chattel mortgage held by said the New Vienna Bank. 2. Said probate court had no power or jurisdiction to declare said chattel mortgage void as to the other creditors of said assignor, nor as to said assignee, nor to decree a cancellation thereof, nor to declare that the same inured to the benefit of all the creditors of said assignor. 3. This court on appeal has no power or jurisdiction to inquire into or determine any of the matters aforesaid." The testimony shows that on November 27, 1900, the said Summers was indebted to the bank upon an old note upon which his father was security in the sum of $618.78 and he stated to the bank that he desired to purchase some feeding cattle, and hogs, as he had considerable corn and desired to make an additional loan, to make the amount of his indebtedness one thousand dollars, that the bank agreed to increase the loan provided he would give it a chattel mortgage upon the live stock. Thereupon Summers executed his note for one thousand dollars, due in ninety days and gave his chattel mortgage upon the livestock and the bank advanced him $371.72. The cashier of the bank who transacted the business testified that he had looked upon the mortgage record and knew that there were some mortgages against the farm of Summers, that he asked Summers several times about his business, thit said he was getting along all right and was paying his debts, and tha: 1. had no idea that Summers was insolvent at that time, and that he was under the impression that Summers would be able to pay his debts, that he had regarded Summers as a solvent upright man; that he had regarded John J. Summers, the security on the old note as perfectly solvent and a good man, an examined the record as to John J. Summer's mortgage indebtedness and he found some mortgages but that he considered him good. It was admitted by counsel at the trial that Joseph W. Summers was insolvent at the time of making the chattel mortgage, that at the time of the execution of the mortgage he had mortgages on his real estate for about five thousand dollars in excess of its value. It is further admitted that the assignee realized $734.95 from the sale of the live stock. There were in fact only nineteen head of cattle instead of the number named in the chattel mortgage. J. W. Summers testified that at the time of the giving of the chattel mortgage to the bank that he had no intention of making an assign-. ment and no intention of preferring the bank over any other creditor, or to hinder, delay or defraud any other creditor, nor was it his intention at that time to make an assignment for the benefit of his creditors. Clinton Common Pleas. The finding of the probate court was founded upon secs. 6343 and 6344, Rev. Stat., as amended in 93 O. L., 290 and 291, as follows: "Sec. 6343. Every sale, conveyance, transfer, mortgage or assignment, whether made in trust or otherwise, by a debtor or debtors, and every judgment suffered by him or them, and every act or device done or resorted to by him or them, in contemplation of insolvency, or with a design to prefer one or more creditors to the exclusion in whole or in part of others, and every sale, conveyance, transfer, mortgage or assignment made, or judgment suffered by a debtor or debtors, or procured by him or them to be made, in any manner, with intent to hinder, delay or defraud creditors, shall be declared void as to creditors of such debtor or debtors, at the suit of any creditor or creditors, as hereinafter provided, and shall operate as an assignment and transfer of all the property and effects of such debtor or debtors, and shall inure to the equal benefit of all creditors of such debtor or debtors in proportion to the amount of their respective demands, including those which are unmatured. And every such sale, conveyance, transfer, mortgage or assignment made, and every such judgment suffered, and every such act or device done or resorted to, by any debtor or debtors, in the event of a deed of assignment being filed within ninety (90) days after the giving or doing of such thing or act, shall be conclusively deemed and held to be fraudulent, and shall be held to be void as to the assignee of such debtor or debtors, whereupon proof shown, such debtor or debtors was or were actually insolvent at the time of the giving or doing of such act or thing, whether he or they had knowledge of such insolvency or not. Provided, that nothing in this section contained shall vitiate or affect any mortgage made in good faith to secure any debt or liability created simultaneously with such mortgage, if the same be filed for record in the county wherein the property is situated, or as otherwise provided by law, within three (3) days after its execution, and where upon foreclosure or taking possession of such property the mortgagee fully accounts for the proceeds of such property." "Section 6344. Any creditor or creditors, as to whom any of the acts or things prohibited in the preceding section are void, whether the claims of such creditor or creditors has matured or will thereafter mature, may commence an actiou in a court of competent jurisdiction to have such acts or things declared void, and such court shall appoint a trustee according to the provisions of this chapter, who upon being duly qualified shall proceed by due course of law to recover possession of all property so sold, conveyed, transferred, mortgaged or assigned, and to administer, the same for the equal benefit of all creditors, as in other cases of assignments to trustees for the benefit of creditors. And any assignee as to whom anything or act mentioned in the preceding section shall be void, shall likewise commence a suit in a court of competent jurisdiction to recover possession of all property so sold, conveyed, transferred, mort |