Opinion
Decided June, 1900.
PROBATE APPEAL, from a decree dismissing the plaintiffs' petition to vacate a decree granting Dakin a discharge in insolvency. Dakin died after the appeal was taken, and his administrator defends.
The plaintiffs' evidence tended to show that the bond to secure the performance of a composition agreement was executed by the debtor and one of his creditors, and that thereafter, and before the discharge was granted, he made a mortgage to this and three other creditors to secure the payment of a sum in excess of the amount needed to pay the percentage agreed upon. The plaintiffs also offered to show by a creditor, who was not a party of record, transactions between the witness and Dakin. The administrator did not elect to testify, and the evidence was excluded, subject to exception.
At the close of the plaintiffs' evidence the appeal was dismissed, subject to exception.
Osgood Osgood, for the plaintiffs.
Burnham, Brown Warren and Allan M. Wilson, for the defendant.
There was no evidence to justify a finding of fraud. Such a conclusion would have been mere conjecture. Deschenes v. Railroad, 69 N.H. 285, 288, et seq.
The testimony of the creditor was properly excluded. Although not a party of record, he was directly interested in the result of the appeal. Foster v. Ela, 69 N.H. 460.
Exceptions overruled.
YOUNG, J., did not sit: the others concurred.