the court, in examining it, supposed it had been filed with their consent, we think the proceeding was so irregular that a new trial ought to be granted. The trial judge has said that in rendering his decision he was not influenced by the contents of the brief so filed. Such statement cannot be accepted as conclusive. Peck v. Pierce, 63 Conn. 320, 28 Atl. 524. Though the only effect of reading the brief may have been to confirm the judge in the opinion which he had already formed, that opinion might have been changed had the plaintiff replied to the argument of the defendant's brief. There is error, and a new trial is granted. The other judges concurred. BOLAND v. O'NEIL. (Supreme Court of Errors of Connecticut. Aug. 1, 1899.) APPEAL-REVIEW OF RULING ON DEMURRER 1. The filing of a second amended complaint is a withdrawal of the first, and the ruling on a demurrer to the first amended complaint will not be reviewed. 2. A contract of separation, made between a husband and wife, where it was agreed that as a consideration for the transfer of certain savings-bank books by the husband to the wife she was to leave her relatives and friends, and live among strangers, until he should be willing to take her to his own home, no cause for their separation appearing, and the evident purpose of the agreement being, not the termination or suspension of their relations as husband and wife, but the concealment of them, will not be enforced in an action by the wife to recover damages for its breach, as, by its terms, they were voluntarily to live apart without adequate cause, and for purposes which are against good morals and the public welfare. Appeal from superior court, New Haven county; Samuel O. Prentice, Judge. Action by Mary A. Boland against Frank J. O'Neil, administrator, to recover damages for breach of contract of separation made between plaintiff and her husband, defendant's intestate. There was a judgment for defendant, and plaintiff appeals. Affirmed. In the original writ the plaintiff describes herself as Mary A. Boland, formerly known as Mary A. Casey. In the original complaint she asked for $15,000 damages, and for specific performance of the contract therein set forth. The plaintiff filed an amended complaint, which was demurred to, and the demurrer was sustained. Thereupon she filed a second amended complaint, which was as follows: (1) The plaintiff was the wife of the said Patrick C. Boland, deceased. (2) Said marriage relation was entered into subsequent to April 20, 1877. (3) In consideration of the premises, and of the legal and moral obligations which the said Patrick C. Boland, deceased, was under to the plaintiff, and of the plaintiff's promise to and agreement with the said Patrick C. Boland, deceased, not to enforce by legal proceedings her legal rights and claims against him to compel him to support and maintain her, and in further consideration of the plaintiff's promise to and agreement with the said Patrick C. Boland, deceased, to leave her relatives and friends, and to go to Hartford, and to live among strangers, and to conduct herself in a virtuous manner, and to support and to maintain herself, and that this condition of affairs should continue until such time as the said Patrick C. Boland, deceased, should be willing to take her to his own home, the said Patrick C. Boland, on the 4th day of July, 1896, and on divers other days prior thereto and since said 4th day of July, 1896, agreed to and with the said Mary A. Boland to transfer, assign, and deliver to her two bank books, to wit, one book on the City Savings Bank of said Meriden, and one on the Meriden Savings Bank of said Meriden, together with the sums of money owned by the said deceased and represented by the said books, being in all the sum of $10,000. (4) From time to time prior to and since said 4th day of July, 1896, and up to the date of his death, the said Patrick C. Boland, deceased, renewed his promise to and agreement with the plaintiff, as set forth in the preceding paragraph, and, upon the considerations set forth, to transfer, assign, and deliver to her, the said Mary A. Boland, the legal title to said bank books, and the sums of money represented thereby, being in all the sum of $10,000, and partially made arrangements so to do in the summer of 1897, when he died suddenly, at said Meriden, and never in fact did transfer, assign, and deliver to her the said bank books and the sums of money represented thereby, being in all the sum of $10,000, nor any part thereof. (5) Said Mary A. Boland, in fulfillment of her promises and agreements as aforesaid, did not pursue her legal right to support and maintenance against the said Patrick C. Boland, deceased, and did leave her relatives and friends, and go to Hartford, and there remained until the time of the decease of the said Patrick C. Boland, and did conduct herself in a virtuous manner, and did also support and maintain herself during all of the said time, and performed all of the other conditions of the said agreement on her part to be performed. This complaint also alleged that the deceased left an estate valued at the time of his death, on July 17, 1897, at $15,000; that plaintiff's claim had been duly presented to the defendant administrator,-and claimed $15,000 damages, without asking for the transfer to her of said bank books. To said second amended complaint the defendant demurred upon the following grounds: "(1) That the facts set forth in said contract do not constitute a valid contract, for that a husband and wife have not, either in law or in equity, capacity to contract together in regard to the matters in said substituted complaint set out, in the manner alleged. (2) That the alleged contract or agreement therein set out is not valid, either in law or in equity, because no sufficient or adequate consideration therefor is alleged. (3) That the agreement alleged to have been made was and is void, both at law and in equity, as contrary to good morals and against public policy. (4) That the facts alleged show a promise to make a gift, and, as no delivery in fact is alleged to have been made, the transaction is incomplete, and will not support a proceeding either at law or in equity." Cornelius J. Danaher, for appellant. George A. Fay and William L. Bennett, for appellee. HALL, J. (after stating the facts). The rulings of the court sustaining the defendant's demurrer to each of the two amended complaints are the reasons of appeal assigned. The plaintiff is not entitled to have reviewed the ruling of the court upon the demurrer to the first amended complaint. The filing of the second amended complaint was a withdrawal of the first. It is alleged as grounds of demurrer that the contract described is not one which, either in law or equity, could be entered into between husband and wife, and that it is void, both in law and equity, as contrary to good morals, and against public policy. Equity does not recognize the same right in husband and wife to contract with each other as they would have at common law were they single. Contracts made in good faith, upon a valuable consideration, and which are just and reasonable, and certain in their terms, will be enforced in equity; but courts of equity will examine them with great caution before they will confirm them. Hinman v. Parkis, 33 Conn. 188; Schouler, Dom. Rel. § 191. Among the contracts between husband and wife which are thus supported by courts of equity are certain agreements, made either with or without the intervention of a trustee, for the maintenance of the wife living separate from her husband. The principle upon which they are sustained is not that the separation should be enforced, nor that it is lawful for the parties to contract to separate, but that, when they are living apart for causes rendering such separation reasonably necessary, the agreement of the husband to perform his duty to furnish support for his wife should be carried out. No agreement looking to a future separation of husband and wife, nor for her maintenance after such future separation, will be maintained by a court of equity. 1 Story, Eq. Jur. §§ 1427, 1428. That the basis of the action of a court of equity in sustaining certain contracts between husband and wife for the separate maintenance of the latter is the existence of an actual, reasonable ground for separation, and not a frivolous or immoral one, or one which offends public policy, is clearly shown by the majority opinion in the case of Nichols v. Palmer, 5 Day, 47. Chief Justice Cooley, in Randall v. Randall, 37 Mich. 571, said, with reference to the enforcement of such contracts in equity: "We apprehend there was never any impedi ment to their [husband and wife] dealing with each other on the basis of contract when no consideration of public policy prevented it; in other words, when the occasion required it, and when the contract, in view of the relations of the parties, was one proper and suitable to be made. * It is not the pol icy of the law to encourage such separations, or to favor them by supporting such agreements as are calculated to bring them about." Chancellor Walworth, in Carson v. Murray, 3 Paige, 500, deprecates in strong terms the policy of maintaining agreements between husband and wife for a separation, even when made with the intervention of a trustee. "It may well be doubted," says he, "whether public policy does not forbid any agreement for a separation between husband and wife except under the sanction of a court of justice, and whether it does not also require that such agreements should be limited to those cases where, by the previous misconduct of one of the parties, the other is entitled to have the marriage contract dissolved, either wholly or partially, by the decree of the competent tribunal." Similar views are expressed by Justice Davis in Walker v. Walker, 9 Wall. 750; Story, Eq. Jur. § 1427; Bish. Mar., Div. & Sep. 1264-1280; Schouler, Dom. Rel. §§ 215217. In Stebbins v. Morris (Mont.) 47 Pac. 642, decided in 1897, and in which a complaint for the enforcement of a provision for the support of the wife in an agreement of separation was demurred to, it was held that the general doctrine as to enforcing agreements of separation was subject to certain limitations. We quote from the opinion: "An agreement for a separation which is to take place in the future is void as against public policy. So, too, after such an agreement is entered into, its terms must be immediately complied with on peril of nullity; and at the time of the making of such an agreement the relations between the husband and wife must be of such a character as to render the separation a matter of reasonable necessity for the health or happiness of the one or the other. There must be a moving cause for it, in addition to the mere mutual volition of the parties. If it is the outcome of mutual caprice only, or a reckless disregard of the obligations of the marriage tie, then the courts will not enforce it. In almost all the cases that we have investigated the court has had before it an unhappy condition of marital relations as a moving cause of the contract. Judges have carefully discriminated between agreements of separation, outgrowths of domestic sorrow, entered into for the purpose of avoiding public scandal or notoriety, and those which have resulted from a wanton or reckless disregard of one of the highest obligations of life,-the duty which the husband and wife owe to each other and to the public at large." The mutual enjoyment by the contracting parties of the society and affection of each other, the establishment of the home and the family, the birth of children in a wedlock which is both actual and apparent, and the control of them in infancy by both parents, are essential purposes of the marriage relation, contracts of the parties contracts of the parties tending to defeat which will not be sustained either in law or equity. The public have a vital interest in the question whether husband and wife may contract to live apart after their marriage. Judge Pardee said in Appeal of Seeley, 56 Conn. 205, 14 Atl. 292: "Inasmuch as the state rests upon the family, and is vitally interested in the permanency of a marriage relation once established, for the promotion of public welfare and of private morals as well, it makes itself a party to every marriage contract entered into within its jurisdiction. *" It was held in that case that the law would not recognize an agreement between husband and wife which provided that he should pay to her a certain sum in consideration of her promise not to claim alimony in a divorce suit to be commenced by her. Whether the situation of the parties in the case before us was such as to render the agreement between them a proper and reasonably necessary one, and whether its terms and purpose are such that a court of equity ought to enforce it, must be ascertained by reference to the language of the complaint. As the complaint alleges that the plaintiff was the wife of Patrick Boland, we are bound to assume that she was lawfully married to him, notwithstanding the somewhat peculiar statement which follows,that "said marriage relation was entered into subsequent to April 20, 1877." It does not appear from the complaint that the plaintiff ever lived with her alleged husband as his wife, or was supported by him, or was ever known as his wife, or that she ever assumed his name. On the contrary, from the statements in the second complaint it would seem that he had never openly lived with her as his wife, and was unwilling to do so, and that she was still living with her relatives and friends, and that the agreement contemplated not a change for the purpose of her living apart from him, but from her relatives and friends. But if we could assume, from the language of the complaint, that they had ever lived together, the promise of the plaintiff, which is alleged as a part of the consideration of the agreement of Patrick Boland to transfer the savings-bank books, was that they should live apart in the future. promise was, as set forth in the complaint, "to leave her relatives and friends," and "to go to Hartford, and live among strangers," etc. The agreement is alleged to have been made on the 4th of July, 1896, and "on divers other days prior thereto and since" said day. It is not alleged to have been in writing. There appear to have been no domestic difficulties. Their personal relations seem to have been pleasant. Nor does there appear to have been any reason why it should be desirable that she should leave her relatives and friends, and go to Hartford, to live among 44 A.-2 strangers, unless it was that under those circumstances they might more conveniently meet than while she resided with her relatives and friends, and that at the same time they might conceal their true relations from the public. public. The agreement was evidently not for the termination or suspension of their relations as husband and wife, but for the concealment of those relations for an indefinite period. By the agreement this mode of life was to continue for an indefinite period,-"until he should be willing to take her to his own home." Read in the light of the other averments of this complaint, this seems to mean until such time as he should be willing to acknowledge her as his wife. As the price of her consent to live in this manner, whether for a short or long period, she was to receive $10,000. Assuming that she commenced the fulfillment of her part of the contract immediately after it was entered into, she so lived for the period of about one year, when, upon his death, his entire estate is alleged to have been valued at $15,000, one-half of which, if the allegations of the complaint are true, she is entitled to receive under the statute of distribution, irrespective of the question of the validity of this agreement. This contract set forth in the second amended complaint is clearly not one of those which, though made directly between husband and wife, will be enforced in equity. By its terms the husband and wife were voluntarily to live apart, not only without adequate cause, but in a manner and for purposes which are against good morals and the public welfare. The demurrers to the first and second amended complaints were properly sustained. There is no error. The other judges concurred. DAVENPORT v. LINES. (Supreme Court of Errors of Connecticut. Aug. 1, 1899.) - CORPORATIONS LIABILITY OF DIRECTORS FOR DIVIDENDS PAID AFTER INSOLVENCY -AUTHORITY OF RECEIVER TO SUE. 1. In an action by the receiver of a corporation to recover dividends paid to a director when the corporation was insolvent, evidence was offered that the corporation was organized for the purpose of taking up the business of a manufacturing firm; that the fixtures, patterns, scales, and good will of the business were taken with its liabilities, and rated in subsequent inventories as assets; that the patterns and scales were overvalued; that the cost of repairs to the buildings and the cost of an exhibit at the World's Fair were rated as assets; that the expenditures on stock on hand were rated as assets: that the records showed no directors' meeting at which the dividend was voted; and that the indebtedness of the corporation exceeded its assets. Held, that this evidence was admissible on the question of insolvency of the corporation at the time of the paying of the dividend. 2. The court found that the scales and patterns were worth about half the rated value. No evidence was introduced as to the value of the good will, and the court found that the cost of the exhibit at the World's Fair represented no tangible assets. Held, that the corporation was insolvent at the time of declaring the dividend. 3. Under Gen. St. § 1932, making directors of a corporation liable for all losses resulting from a declaration of dividends for which they voted, knowing that the corporation was insolvent, a director who participates in a declaration of dividends, and receives his share, having knowledge that the corporation is insolvent, is liable for the amount received. 4. The receiver of an insolvent corporation may sue for the recovery of dividends paid to a director when the corporation was insolvent. Case reserved from court of common pleas, Fairfield county; Howard J. Curtis, Judge. Action by John Davenport, as receiver of the Keller Bros. & Blight Company, a corporation, against George O. Lines, one of its stockholders, to recover money alleged to have been illegally paid to him in the form of a dividend. Facts found, and case reserved for the advice of supreme court. Judgment advised for the plaintiff. The complaint, as finally amended, alleged the formation of the corporation in 1892, substantially as set out in the finding; that the defendant became and remained a stockholder thereof until it went into the hands of the plaintiff as the receiver; that prior to October 1, 1894, it was insolvent, unable to pay its creditors, with its capital stock impaired, and has so remained ever since; that while in this condition it paid to the defendant certain sums of money as and for dividends upon his preferred stock; that such payments were made without authority and without consideration; that said sums so paid are required to pay the debts of the corporation; that the plaintiff had, before suit, requested the defendant to repay said sums, but he had refused to do so; and that the suit was brought by permission of the court by which the receiver was appointed. The defendant demurred to the complaint on the ground, in substance, that upon the facts therein set forth the plaintiff could not maintain the action. The court overruled the demurrer. The defendant then filed an answer, consisting of three defenses. The first defense admitted certain paragraphs, of the complaint, and denied the others; the second, in substance, alleged that the defendant received the money in question as dividends on his preferred stock, without knowledge of the insolvency of the corporation or that the payment was unauthorized; while the third alleged, in substance, that when the money was paid the corporation was solvent, and such payment upon preferred stock could be made without the same being authorized or declared by the board of directors. The plaintiff demurred to the second and third defenses, and the demurrers were sustained. The court found the following facts: "(1) In September, 1892, a corporation was duly organized in Stratford under the name of the Keller Bros. & Blight Company. (2) The capital stock of said company consisted of $50,000, divided into shares as follows: 500 shares of common stock and 500 shares of preferred stock, each of the par value of $50 per share. (3) The corporation provided by by-laws that its affairs should be managed by 'not less than three nor more than five directors'; also, that 'the preferred stock of this company shall be entitled to a preferred dividend, quarterly or semiannually, to be declared at the discretion of the directors, at the rate of eight per cent. per annum, such preference being cumulative.' (4) The total amount of said stock was subscribed for and paid in upon calls on or before December 23, 1892. (5) Prior to the formation of this corporation a co-partnership under the name of Keller Bros. & Blight was conducting a pianomanufacturing business at Stratford. (6) Said co-partnership of Keller Bros. & Blight had subscribed for 697 shares of the capital stock of said corporation. On September 22, 1892, a business firm, one of whose members was a subscriber to said capital stock, loaned $29,000 to said co-partnership. On September 24, 1892, all of the subscribers paid 20% as a first installment; and said co-partnership also paid in full, from said $29,000 so loaned, so much of their stock subscription as equaled in par value said amount. (7) Said corporation purchased on or before October 3, 1892, from said co-partnership, the business and property of the same, and paid therefor the sum of $29,375.05. In this transaction F. W. Marsh acted as purchasing agent for the corporation. (8) By means of said $29,375.05 so received, said co-partnership repaid said loan. The entire arrangement was intended by the parties as a method of substituting the business and property of said co-partnership, at a valuation of $29,375.05, for a like amount in par value of a stock subscription formally paid in in cash. (9) The business and property of said co-partnership were inventoried and valued as follows in this transaction: ness or good will of the said partnership. (13) Said patterns and scales are the patterns from which the various parts of the piano are made, consisting of patterns made of wood, iron, zinc, and paper; each set of patterns and scales producing, when followed, a particular kind of piano. (14) The patterns and scales herein mentioned produce the various pianos known as the 'Keller Bros. & Blight Piano.' There were three sets of scales and patterns. They were made and perfected by said Keller Bros. & Blight after years of experience, trial, and experimenting, and were particularly adapted to the class of pianos which they manufactured, and were well known and favorably received in the market where their pianos were sold. (15) Copies of (15) Copies of scales and patterns for the manufacture of pianos can be purchased at a price varying from $100 to $250, but such scales and patterns have not been perfected by manufacturing from them and noting the product. (16) A skilled mechanic can take a piano, and from it produce scales and patterns from which similar pianos can be manufactured; but, in perfecting the same by producing pianos therefrom, several hundred or several thousand dollars may be expended. (17) The scales and patterns herein mentioned were not patented or copyrighted. (18) The Keller Bros. & Blight Piano was a piano of the class of moderate priced pianos. (19) No evidence was offered tending to show the value of the business or good will of said co-partnership before or at the time of the sale to said corporation. (20) I am unable to find whether or not the said patterns and scales, together with the good will of said partnership business, were worth $15,155. I find that the mere scales and patterns were not worth one-half that sum. (21) On July 1, 1894, the inventory of said corporation was as follows: -(21) During the year ending July 1, 1894, 370 pianos were sold, the material in which cost $25,689.82. (22) In determining said assets, the real estate was taken at its cost, $11,332.77, and the cost of certain additions to the building was added thereto, making the above sum. (23) To the sum paid for the scales and patterns the sum of $2,229.24 was added; being money expended in an exhibit at the World's Fair, at Chicago, in 1893, for the purpose of advertising. Said sum represented no tangible asset. (24) In the item 'Stock on hand,' the materials on hand were actually inventoried, and found to be worth $9,650.94. The expenses to date, not apportioned to the products sold, but apportioned to the material on hand, are valued at $8,992.44. I find that said sum represents the balance of the expenses from the last inventory, after applying a portion thereof, to wit, $26,834.90, to the pianos since completed and sold. (25) In apportioning said expenses, I find that the expenditures for the preceding year, plus the expenditures found to have been previously incurred on material on hand at the beginning of the preceding year, were distributed, by estimation, between the pianos sold during the year and the stock on hand when the inventory was made, approximately, in proportion to the value of the materials in the pianos sold and the value of the materials on hand.. (26) On July 1, 1895, the inventory of said company was as follows: -(26) During the year ending July 1, 1895, 386 pianos were sold, the materials in which cost $27,007.48. (27) The real (27) The real estate and scales account and material and expenses items were determined in the manner set forth in paragraphs 22, 23, 24, and 25 of this finding. (28) On May 22, 1896, the plaintiff was duly appointed receiver of said company. (29) If, upon the foregoing facts, said company was insolvent, or its capital stock impaired, at the time said inventories were taken, or either of them, I find that it remained insolvent, or with its capital stock impaired, thenceforth, until it went into the receiver's hands. (30) There appear in the books of said company statements of its condition, made quarterly. When these were made, no inventory of material was taken, except in June and December; and the amount of material and the apportionment of expenses were made by estimation, except in the July and January statements. The other items were determined in the manner set forth in paragraphs 22, 23, 24, and 25 of this finding. (31) I find that there were credited on the books of said company to the defendant, as the holder of 72 shares of preferred stock, December 10, 1894, $72; December 26, 1894, $72; March 22, 1895, $72; June 1, 1895, $72; September 24, 1895, $72; January 1, 1896, $72; March 23, 1896, $72,-and proportionate sums on said dates to the other holders of the preferred |