inference can be drawn that the defendant has done any act whatever in recognition of the agreement. To make the agreement effective in his behalf in this action, the defendant must state clearly the doing of some specific act by which he has adopted the contract, and nlade himself a party to it. The Code of this state provides, in express terms, that a cause of action assigned in writing may be sued upon by the assignee, notwithstanding the fact,that the assignor retainslln interest therein. With certain exceptions, the practice in actions at law in this court is governed by the laws of the state. Section 914, Rev. St. U. S. In this connection the attention ofcounsel is directed to the recent decision of the United States supreme court in the case ofRobertB v. Lewis, 12 Sup. Ct. Rep. 781, in which it is held that, in a state having a practice act permitting a defendant to set forth in his answer as many defenses as he may have, as the civil practice act of this state does, "all defenses are open to a derendant in the circuit court of the United States, under any form of plea, answer, or demurrer which would have been open to him under like pleading in the courts of the state within which the circuit court is held;" which decision, in my opinion, annuls rule 7 of this court, requiring matter in abatement to be pleaded in a separate plea or answer. For the reasons stated both pleas are insufficient, and I sustain the plaintiff's demurrer.
& Co. v.
(Oircuit Oourt, D. Washington, .N. D. JUly 30, 1892.)
A oertain firm were creditors of defendant, having supplied him with merchandise and money for operating a sawmill.. Thereafter they made a contract with.3 third person, whereby the latter was 'to furnish money and supplies to operate the mill in future, and receive and sell the product; paying- to the firm $20.000 at the beginning, and $2,500 wopthly for a period of 30 months, unless defendant should in the mean time pay' the firm the sum due them. The contract contained a stipUlation that payment of the sum.due the firm should not be enforced during that time against defendant, with the proviso that the agreement should not prevent the firm from taking the necessary steps to preserve the" legal life" of their demand. Waile this contract was in force the firm brought an action against defendant for the sum due, Ilommencing the same by an attachment on the ground of 'nonresidence. On demurrer to a plea in abatement, the court held that the stipulation was no bar to the actioD or its prosecution to judgment, but that the I!tipulation would have prevented the enforcement thereof by execution or other 'Process, if defendant were a party to the contract or had adopted it, but that his allegations were insufficient to show an adoption. Thereafter defendant moved to discharge the attachment, filing an affidavit showing an adoption of the contract, and alleging that all payments had been made thereunder until the bringing of ,the suit, when,byre!Lsonof the attachments, the monthly payments were discontin\l.ed. Held that, while defendant would have been entitled to a dissolution of the attachment had he stQod strictly upon the contract by causing a continuance oftha monthly payments, his failure to do 80 defeated his right; for the relief . sought by him '\;Vas analogous to the specific performance of a contract, and be was 'not entitled thereto without showing full performance on his part.
At Law. Action by Dexter, Horton & Co., commenced by attachment, against W. P. Sayward, to recover a balance on an account. A
HORTON & CO. tl.SAYWARD.
demurrer to a plea in aba.t,ement was sustained. See 51 Fed. Rep. 729, where a statement of the facts will be found. Defendant now moves to discharge the attachment. Denied. Blaine k De Vries and E. 0. Hughe8, for plaintiff. Battle &: Shipley, for defendant. H.(.NFORD,DistrictJudge. This action was originally brought in the superior of King COUl)ty, and at the time of commencing it the plaintiff sued out writs of attaQhment. directed to the sheriffs of the several counties in which the defendant's property was situated, and thereunder a laFge amount of property, real and personal, was attached. The afficlavit made and filed in behalf of plaintiff, to meet the requirements ofihe attachment law, states .as grounds for the attachment that the defendant is a nonresident of this state, and that he has assigned. secreted, .and disposed of his property with intent to delay and defrall his creditors, particularlythe plaintiff. The defendant now moves the court to. dissolve the attachments, which motion is based upon an afIidaviLof an agent having charge of all of defendant's property and business in this state, showing that the defendant has not made any disposition of property, except lumber and merchandise in the regular course of business, and certain real estate and ships, which were only mortgaged to secure existing debts. The affidavit also sets forth the agreement between Harrington & Smith and Herrick, referred to in the foregoing opinion, overruling the defendant's plea in abatement; and, in additioA to the facts alleged in the plea, that, by inducing Herrick to make payments· and by shipments of lumper as contemplated by said agreement, the defendant has, by adoption thereof and fulfillments of its conditions, made himself a party to said agreement; and that all payments due thereunder, up to the date of the commencement oftbis action, ·were. duly made; but by reason of this suit, and the attachroent of defendant's property, said Herrick has been prevented from continuing the payments, and none have been made since said date. From the proofs before me I find that the defendant has not made or attempted any fraudulent disposition of his property, nor by reason of fraud forfeited the rights secured to him by the contract. He is, however, a nonresident, and on that ground his property in this state is subject to attachment in an action for a debt that is past due. But an attachment on this ground is one of the things provided against by the contract, according to my understanding of it as heretofore explained. I cannot, however, upon the showing made, legally grant the present motion. The showing is insufficient, because, instead of standing upon the letter of his contract, the monthly payments which the defendant undertook to secure to Harrington & Smith have from the commencement of the action ceased. Enforcement of the contract by depriving the plaintiff .of a statutory remedy to which he is apparently entitled, on the ground that he has agreed to forbear during a specified periOd of time to invoke it, is, in effect, equivalent to the granting of equitabl& relief by enforcing specific performance. A party seeking this form of
reIiefin oourt equity n1tlst as 1l.'llcOiJditi6n:prebedent'show that he has or able ,to,do, all the essential and material acts requiredofbiin in thespebiflc'executionof the, contract accordrngtoits:terms."Vfhe court :stipulated of law have the full benefit of the for in a contract,in addition to a right of action for any injury done in tlie J>8.sf by faihlre'on the; patt iM;tbe plaintiffto'obserre ,it, on .terms more favora.ble than he c6utdclail:ll the·same in equity. " I am of the opinion that it wouldhavebeeniright dnd lawfuI'to h!l:ve granted this motion if.it:had beenmade"promptiliyalter the attachments were issued, and before other paymedt$;'beoatne due), or if the payments had been continued·eachmonthaccorcUng to the contract. This court'cannot, in an action 'at :law, exercise the powers of a chancelldf,uor deeree that both parties fulfill their promises. It can only determine their rights according to what has been·done. Inasmuch as the defendant has not liVild,up to this agreement himself, Ihold that his only remedy for the breach of it, alleged to ,have been committed by the phlintiff, is to be found in an. action for damages. The motion to dissolve the attachments is denied.
:MALqpL1>t et al., (WAPLES, Intervener.)
(Circutt Court qf.Appeals, Eighth. Circuit.
1·. FBDBRA.L .COURTS..,..INTBRPRBTA,"Oli 0'11 ij1'ATO'l'IlB-FpLLOWlNG .STATlI CoURTS.
8." C,J:lATTllL MORTGAGB-WUATCoWITITlJTIlS. . :. An instrument executed the Indian Territory conveyed a stock of goods toa trustee with right to immediate possession, but was conditioned to be void if the grantor, within ,60 days, should· pay the ,amounts due certain creditors named therein: othel'Wise the trustee was to sell the goods, and apply the proceeds to the payment of the grantor's debts, in the order named. Held that, under the law of the territorY as adopted from Arkansas, the instrument was, in effect, a mortgage with a power of sale, and not an assignment fOl' the benefit of oreditors. B. CUATTELMoRTGAGllS-DllPECTIVB ACKNOWLEDGMllNT-POSSESSION BY MORTGAGBE. Actual possession of mortgaged chattels by the mortgagee, before the rights of third persons have intervened, renders immaterial any defects in acknowledging the mortgage.
In delillrmining whether an instrument.execUtlld in the Indian Territory is an assignment for the benefit of creditors' or a mortgage, the circuit court of appeals will follow.the. decisions of the: court ilf Arlransas in the construction of the Arkansas statute governiugassul;nments,wbicll was put in force in the Indian Territory by 26 8t. at Large, pp. 81, 94. v. It'low, 48 Fed. Rep. 152, and Appalos v. Bmely, 4,9 Fed. Rep. 401. fOllOWed,
In Error to the United States Court in: the Indian Territory. Action commenced by attachment by the Hat Company against John Malcolm. Paul Waples intervened, claiming the attached goods under a deed of trust from Malcolm. Judgment and verdict for theintervenAr, and for defendant Malcolm on the issue as to the attachment. Plaintiff brings error. Affirmed.