BURTON V. PLA TIER.
901
"The statute is to be so construed, whenever a case comes within its letter, that the person receiving the benefits and advantages of the improvements shall make compensation. It rests on the broadest equity, and in the language of the court in Longworth v. Wolfington, 6 Ohio, 10, 'may justly claim a liberal construction.' The court in that case say: · The law of this state is framed to cover every case where a party is evicted from the possession of lands which he has improved in the faith that he was the owner.' ..
See, also, Harrison v. Castner, 11 Ohio St. 339. M the county commissioners do bring themselves within the letter of the statute, we see no reason why, by construction, they should be excluded from its benefits. For the foregoing reasons the court will instruct the jury that the two deeds in evidence, in the absence of bad faith or collusion, entitle the county commissioners to the benefits of the occupying law, and that they should find the value, at the date of the entry of judgment of ouster herein, July 25, 1892, of the lands with the improvements and the lands without the improvements. The value of the improvements is not their cost, but the added value which they give to the real estate for the use and enjoyment of such real estate by the lawful owner, Charles Young. This is expressly de· cited by Judge Jackson in Van Bibber v. Williamson, 37 Fed. Rep. 756, a case arising under the statute which we are now considering. NOTE. 'llle jury returned a verdict finding the land to be worth $10,500, and the land with the improvements $60,500, which verdict was confirmed by the court. BURTON et al. v. PLATTER. SAME v. SAME.
(Circuit Court of Appeals, Eighth Circuit. Nos. 118 and 140. 1. CONSTITUTIONAL LAW-DUE PROCESS OF LAW.
January 27, 1893.)
In an action for the recovery of personal property brought by an assignee in insolvency against his assignor and certain judgment creditors, who have obtained possession of the property, and who are sureties on the cross bond given by the assignor for the retention thereof, where the only question at issue under the pleadings is the right of possession, and no notice of intention to rely on the bond as a cause of a action has been given before trial, and no proof thereof made at the trial, a money judgment against the sureties as such, unless specially authorized by statute, is given on a cause of action totally different from that pleaded and tried, and is void for want of due process of law.
2.
FRAUDULENT CONVEYANCES-PROCEDURE.
An assignment for the benefit of creditors should not be set aside as fraudulent in respect to creditors not secured by it, unless it is pleaded and proved that there were such unsecured creditors at the time of its execution, or that it was made with the intention of contracting debts which the assignor had no reasonable grounds to believe he could pay, and that such debts were actually contracted..
8.
SAME-EvIDENCE.
In an action to set aside a conveyance or assignment as a fraud upon creditors, judgments against th"l assignor are no evidence against the assignee or other strangers of previous existence of the indebtedness on which they are founded.
902 "
FEDERAl, REPORTER,
vol. 53.
AsBIGnENTFOR BlllNEFITOF OREDITORS-ORAL AGRlllEMEN,T VARYING ,WRIT'!'BN,CONTRACT. " ' ,' '
An lllSS1gnor ,for the benefit ot creditors who himself of the cannot" In an action of replevin ,the assignee, set up as a ,a conteroporaneousoral ,promise by the latter to keep up the stoekof goods, In oppoilltion to the terms of thew-ritten assignment.
Ii. SAME-REsCISSION.
The faUure of an assignee. fQr the benefit. ofcl'editors (the assignment being in writing) 'topetti>rm ll. contemporaneoUs' oral promise to .dlsregam some, of its provisiobS 'is not such ,fraud as to' authorize the asSIgnor, in theabs¢nce of mistake! on his part, to rescind, the: contract of assignment . ,; "
6.
1890, {26St at Large, 95,} where the court finds, or the evidence conclusivelyproVe$, that the. property' cannot be return,ed' by the defendant, a stmple,money judgmElut for its value may be rendered against him, without thEl. illternativeof returning the property.
In a' cOde action tor, the recovery of of personalty under Ark.§ 5181, in forceln the Indian 'Territory, by Act May 2,
INaCCESSlRLE....,MoNEY JUDG\MdT,
'1.
PRACTICE -TRANSFER FROM LAW TO EQUITY DOCKET LA;lUTmll· .... ' "
WAIVER OF lEBEGU-
Where an action at law in the Indian Territory, wherein there is no cnuseot action or de;tense pleaded that is notasg()Od at law as in equity. a.ud which shpuld be tried: at law, is tl'atlBferred to the chancery dook.et, and. heard and tried by .the master, all the ,parties agreeing thereto, and participating in the' proceedings, all irregularities of procedure are waived.
InErt'Or to the United States Court in ith'eIridian TeITitory. Appeal from the United States Court in the Indian Territory. At Law. Action by Henry Platter, assignee for the benefit of said Richard B. Burton, creditors of Richard ,B. Burton, to recover the possession of personal property 'wrongfully detained. Certain creditors of the defendant intervened, and were made parties . By agreement of, all parties, .the case was transferred to the chitneery doeket. Decree for plaintiff. Defendants appeal, and also bring erl'or.Reversed in part, and affirmed in part. Statement by SANllORN, Circuit Judge: In these cases the same parties prosecute a writ error and an appeal to reverse a decree in chancerY rendered in a code action for the recovery of specific personal property. '.' The appellee and defendant In error will be called the plalnti1f; the appellailtand plaintitf in error, Burton, the defendant; and all other plainti1fs In error a.ud appelllUlt1l, interveners. , April 1, the defendant made an llSSignment of the property in question to the platnti1f. anddellvered its possession to him, to secure the payment of certain creditors of the assignor therein named, Whose claims amounted to $9,515.61. The plaintiff employed the defendant as a clerk to assist in disposing of the property, and $2,684.65 had been realized 'from its sale, and paid over tl1 the seou1"ed creditors under the assignment, when the defendan:t, on August 19, 1889, repudla1led it, and held possession of the remainder of the stock of goods for himself. The plaintiff demanded possession of the property, and it was refused. On August 24-, 1889, he brought this action for it, and set forth . the facts just stated in his complaint. He gave the usual bond fOl' the delivery of the property to' himself,' and under \l. proper order from the court, based upon this complaint and bond, the marshal seized the property on August 25,1889, and on August 28, 1889, the defendant gave a cross bond for the return of the property, and it was redelivered to him. On this cross bond there were Six sureties, five of whom are the interveners In this action. On September 5, 1889, these five intereveners obtained judgments by con-
BURTON tI. PLATTEB.
903
fel!lS1on agaInst: the defendant· for. emounts aggrep.t!ng. about Issued and sold the executions thereon. and the marshal, In October, property In question thereunder, satisfied the judgment8 out of the proceeds, and paid over to the defendant a balance ot some $2,000. On April 9, 1890, the Interveners 1I.1ed a petition 1n this a:et1on, In which they pleaded these judgments and executiona, the sale .thereunder, the satisfaction ot their judgments trom the proceeds, and. the payment of the balance by the marshal to the defendant; averred that, In order to Induce the marshal to seize this property under the execution, they gave b1m a bond of Indemnity; that the assignment was fraudulent as to' them as judgment ereditors, and asked that they be made parties to this action; that· Ule assignment be adjudged void as to them, and that their rights and those ot the plaintifl' and defendant to the property In question be determined In this action. On the same day the defendant 11.100 his answer, which admitted the allegations of the eomplaint, and alleged thatatter the draft of the' /lSsignment was made, and before it was executed, the plalntiJr orally prom18Nl that the stock should not be sold out; that he would furnish new goods to hep it up to its general average; that these goods should be paid for out ot the proceeds of the sa).es of the assigned stock, and that he bad not kept these oral promises, but had proceeded accord· Ing to the provisions of the written assignment In executing his trust. The plaintiff demurred to this answer, and his demurrer was, at the final hearing, sustained. On April 9, 1890, on motion of the Interveners, the action was transferred to the chancery docket. On November 30, .1890, the plainM filed & motion to .dismiss the Interveners' petition, which was, at the final hearing, denled. On November 30, 1890, all of the parties to the action stipulated that it should be referred to a special master to hear and report the facts and eon· elusions of law, and the eourt so ordered. The master heard the proofs, and made a report, to which exceptions were filed. He reported the amount remaining unpaid on the claims of the secured creditors, and that the value of the property was $8,000, and then found that the plaintiff was entitled to judgment for the property, or the value thereof, against the defendant and the sureties on his bond. The defendant and Interveners excepted to this flndlng;their exception was ovemiled; and, upon the master's report, a de cree was rendered that the plaintur reeover from both the defendant and the Interveners the amount unpaid on the secured claims, which was $7,815.63, and the costs of the action. No judgment or deere"! In the alternative for the return of the property, or the payment of the value of plalntifr's special In· terest In it, was rendered. The cross bond, upon which the Interveners' names appeared as sureties for the defendant, was not pleaded or mentioned, nor was any reoovery on its account prayed for In any of the pleadings, or so1l$ht by any motion in the case, and it was not Introduced In evidence. It is assigned as error that the court rendered a decree for the reeovery of money against the defendant, Burton, and his sureties, whereas the only judgment or decree it could have lawfully rendered was one against Burton only, and for the renlrn of the property or its value; that "the master and the eourt should have found the assignment to be fraudulent and void as to the Interveners; and that it should have ovemiled the demurrer to the defendant's answer. There are other assignments of error, but their eonsideration is not necessary to thf' determination of this case.
J. E. McKeighan, (Lee, McKeighan, Ellis & Priest and F. P. Blair, Jr., on the brief,) for plaintiffs in error and appellants. L. C. Krauthoff, (Karnes, Holmes & Krauthoff, on the brief,) for defendant in error and appellee. Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District Judge. SANBORN, Circuit Judge, (after stating the facts.) It .. a principle that lies at the foundation of all just government that no man shall be deprived of his We, liberq, or property without
904'
FEDERAL REPORTER,
vol.;53.
of 'law,; Every' dflgreg.u;d of this principle by 'com1:s, .QtcitizeI1S towards distrust,' insecurity, It maY'bedifl;icult, perJ;13,ps impracticable, to give a definition of. "due process of law" which, would comprehend 'they alise, and' it is certainly unnecessary to do so. all caseS' ChanceJl()'r,'JrI1tj.t says: "The better and la,rgel' definition of 'due laW'Js that. it means, law in its. regular administration through.: (X)urts of justice." '2 Kent, Comm. 13. Certain it is that, in judicial proceedings, due :process of law must be a course of. legal proceedings, according tothdse rules and forms, which have for the protection Of private It must been be one that is appropriate to the' case, and just to the parties affected.' It must be pursued in the ordinary manner prescribed by the law. "It must give to the parties to be affected an opportnnity to bfi', respecting the justice of the judgment sought. It must be one which ..1:1ears before it condemns, proceeds upon inquiry,andrenders judgment only after trial. Theoourse of proceedings through which the interveners stand h;-:e to pay over $7,000, on account of an assumed Ii::,," bihty as sP.rebes. on the cross bond the defendant gave to obtam a return to him.of the personal property replevied in this actiolD, was .of this character. The action in its inception was the ordinary 'cod;e ,'action for the recovery of personal property lawfully taken, but. wrongfully detained, now commonly called an "action of replevin," though it resembles more nearly the old "action of detinue." It was brought by the plaintiff agaillilt the defendant, Burton, alone, and the only issue tendered by the complaint when the bond ",as wven, August 28,1889, was whether the plaintiff or Burton, W!lS then entitled to the possession of this personal, property. , " It is true that the interveners in April, 1890, filed their petition, and became parties' to the' action, but this was not on account of their Jiabiltty'on the cross bond. That was not mentioned in their Petition. It was on aCcount of some rights in this property thej:elaimed to have as cre.ditors of the defendant, Burton, and on.' acoount of their possible liability on an indemnity bond to the marshal to induce him to seize the property they had under their executions, some weeks after, the cross bond, was given. All they sought in' their petition was that they might be made parties to the action, that the assigmnent might be set aside, and "tha,t the respective rights as to said goods of said Platter, trustee, said Burton, and themselves, be adjudicated in this action." The plaintiff demulTed to the answer of Burton, and, when the cause went to hearing, the only question at issue was, who was entitled to the pOtSSession of the personal property at the commencement of the a,ction? Kay v. Noll, 20 Neb. 380, 385, 30 N. W. Rep. 269; Loomis v. Youle, 1 Minn. 175, (Gil. 150;) Wells, Repl. § 94. No cause of action upon the bond upon which this judgment against the interveners is founded had been pleaded. No recovery UpOlc it had been asked. Indeed, it had not been mentioned in the pleadand only five of the six sureties on it were parties to the
as
BURTON t:. PL .TTER.
905
action. The entire evidence at the hearing is before us. and the bond was not offered in evidence, nor was it mentioned in the testimony. It is first heard of in these proceedings (after it was filed) in the master's report, filed December 19, 1891, where he finds the value of the property to be $8,000, and that the plaintiff is entitled to judgment against the defendant and the sureties on his bond for said property or its value. It next appears in the decree rendered January 4, 1892, where the court, without rendering any decree in the alternative for the return of the property or its value. as recommended by the master, renders an absolute decree against five of the sureties on the bond f(w the payment of of $7,815.63, and the costs. In many jurisdictions there are statu· t{)ry provisions authorizing judgments against sureties where are· covery has been had against their principal by summary proceedings. but even in such cases the method prescribed by the statute must be strictly followed. In the Indian Territory there is no such statute in force. Lamaster v. Keeler, 123 U. S. 376, 390, 8 Sup. Ot. Rep. 197. Nothing can better illustrate the injustice and irregularity of this proceeding than the statement of these facts. No notice of the ground on which the judgment was to be rendered, no opportunity to contest their execution of the bond or their liability upon it, was given to any of these interveners until after the hearing was concluded, and the master's report filed. To all these they were entitled a matter of right, by the rules and forms established by the courts for the protection of private rights. No rule is more salutary or better settled in the courts than that one may not bring and try his suit upon one cause of action, and recover a judgment or decree upon another. In an action of ejectment he cannot have judf,'1llent upon a promissory note which is neither pleaded nor proved; nor can he, in an acWm of replevin, where the only question at issue is the right t(> the possession of personal property, without notice, pleading, or proof, recover a decree or judgment upon a bond.. A judgment or decree, to be valid, must be according to the allegations and the proofs. This judgment is according to neither, and upon this gTound, so far as the interveners are concerned, it must be reversed. 'l'aussig v. Glenn, 51 Fed. Rep. 409, 413, 2 O. O. A. 314; 1 Black, J udgm. § 'l'his disposes of the judgment for money against the interveners; but it is claimed by them and by the defendant that the plaintiff was not entitlM to the posses..<;ion of the property or to any jUdgment against anyone, because the assignment was fraudulent and void as to creditors, and numerous errors are assigned because the master did not so find and the court did not so decree. In the rulings here complained of there was no error. The assignment wrus made April 1, 1889. The plaintiff took and held possession under it until August 19, 1889. During this time he employed the defendant, Burton, as his clerk. The claims of the creditors secured by the assignment amounted to $9,515.61, and the plaintiff had realized from the property, and paid on these secured claims, $2,684.65, when, on August In. 1889, the defendant, Burton, repudiatM his assignment, and held possession of the property remaining for himself. Its value was $8,000, and plaintiff demanded it. 'l'hese facts are alleged in
1I06
FEDERAl, R&poRTER,
vol. 53
compla.int, and .were 110wheredenied. The answer of. the. defendant does not aver that atthetimeot the execution of the deed of assignment, or at any time prior to April 9, 1890, when it was verified, he was insolvent, or even indebted to anyone not secured by the assign· ment. The only reference in this answer to any creditor is an allegation that" by thefail1l1'e of plaintiff to comply with certain parol promises, the defendant had been "forced into an apparent attempt to work afmud on his other creditors." There is no statement who such other creditOrs were, or when the indebtedness to them. accrued, or what its am.ount was. On August 25, 1889,. the plaintiff repleviedthe, property. On Au· gust 28, 1889"it was returned to the defendant on his cross bond. On April 9, 1890, the interveners med ,their petition to be made parties, and asked that the assignment be adjudged void. They filed no other pleadings, and in this petition they alleged that "at the Septem· ber term last of this court, and on the -----r+ day of said term, they ajl;ainSt Robert D. Burton, defendant above obtained named, in the following amounts, namely: Eby, Dowden & Co., in the sum. of $247.64; Wood Ma.nufacturing Company, in the sum of $613.00; WepbWooden.WareCompany, in the sum of $574.85; Myel' Bros. Drug Qompany, in the sum of $186.12; L.Sawyer & Co., in the sum of $1,248.60/'-ajl;gregating$2,865.21, and that, under executions upon these judwnents, the :marshal took the replevied property from nurton, sold it., and satisfied their judgments from the proceeds. At the hearing, Uwas proved that these judgments were rendered on the confessions of Burton, September 5, 1889. There were no other al· legations or proofs as to the time when the indebtedness shown by these judgments was incurred, or that the defendant ever owed any other indebtedness not secured by the assignment. One who attacks anassijl;nment on the ground that it is fraudulent as to those who becoUie creditors of the assignor subsequent to its execution must allejl;e and prove that the assignor.made the conveyance with the actual intent to"defraud, with the intent to put the assigned property out of the reach of debts which he intended thereafter to contract, and which he had reasonable grounds to believe he would not be able to pay, and that he subsequently did contract such debts in pursuance of that fraudulent intent. Even a voluntary conveyance is not fraudulent per se as to subsequent creditors. Horbach v. Hill, 112 U. S. 144, 149, 5 Sup. Ct. Rep. 81; Clark v. Killian, 103 U. S. 766, 769; Wallace v. Penfield, 106 U. S. 260, 1 Sup. Ct. Rep. 216; Graham v. Railroad Co., 102 U. S.148, 153; Cunningham v.Williatlli!l, 42 Ark. 170, 173; Toney v. McGehee, 38 Ark. 419, 427. There are no such allegations or proofs in this record, and the question of the validity of this assignment as to subsequent creditors was not raised by anything that appears in it. One ",]w attacks all assignment on the ground that it is fraudulent as to creditors of the assignor existing at the time of its execution must allege and prove that there were such creditors at that time, fora conveyance cannot be fraudulent as to credito,rs unless there are creditors' to be, defrauded. Horbach v. Hill, supra; Olark v.Killian, supra; Bl'aley" v. Byrnes, 20 MinD. 435, 438,
BURTON V. PLATTER.
90?
(Qil. ;t89, 394;) Bruggertnan v.' Hoerr, 7 Minn. 337. 343,' (Gil. 264,' . 269, 210;) Stone v. Myers, 9 :Minn. 303,(Gil. 287.) In thedetermination of questions raised by such an attack, judgments against the assignor are no evidence against the assignee or other strangers of the previous existence of the indebtedness on which they are founded. Bruggerman v. Hoerr, 7 :Minn. 337, 343, (Gil. 264, 269, 270 i) County of Olmsted v. Barber, 31 Minn. 256, 261,17 N. W. Rep. 473, 944; Hartman v. Weiland, 36 Minn. 223, 224, 30 N. W. Rep. 815; Bloom v. Moy, (Minn.) 45 N. W. Rep. 715. As there are no allegations or proofs of the existence of any unsecured creditors of the assignor prior to September 5, 1889, when the judgments were confessed, more than five months after the assignment was made, no question as to the fraudulent character of the assignment as to creditors was even raised by this record, and there was no elTor in the various rulings of the master and court sustaining its validity. The interveners therefore stood on no higher ground than the defendant. Their judgments rendered and executions issued against Burton after he had rebonded the property in this action gave them no rights to the property or its possession that Burton did not have when this action was comtnenced. They were therefore entitled to no relief. They stated no ground for any relief' in their petition, and it should have been dismissed, and their motion to be made parties denied. Turning now to the defendant, we have already seen that his answer did not raise the question of the fraudulent character of this assignment as to creditors. The plaintiff's demulTer to it was sustained, and the only remaining question regarding the title or posses-. sion of the property is, if the defendant had no creditors not secUred by the assignment at the time of its execution, and at the time of the commencement of the action, was the assignment valid as to him, and did it entitle the plaintiff to the possession of the property under the allegations of his answer? His answer admitted the allegations of the complaint that on April 1, 1889, he made the assignment and delivered the property to the plaintiff, to secure the payment of the claims of the secured creditors; that he was employed as plaintiff's clerk thereafter, and that in that capacity he was in passession of the property, holding it for the plaintiff, when he repudiated the contract, on August 19, 1889, and claimed to hold the property for himself; that meanwhile $2,684.65 had been realized under the assignment, and paid over to these creditors, and that the balance (If their debts remained unsecured. The answer alleged no failure on plaintiff's part to comply with any of the provisions of the assignment, and the only defense it attempted to set up was that after the drafting, and before the signing, of the instrument, the plaintiff made oral promises to him that he would furnish him with such goods, from time to time, as would be necessary to keep the stock up to its general average; that these goods should be paid for out of the proceeds of the sales, and that· the business and stock should never be closed out, but should be continued as a going concern; that he was induced to sign the assignment by these oral promises; and that plaintiff had not performed them, but had proceeded according to the
908
FEDERAL .REPORTER.
vol., 53.
terms of agreement.: To this a;n.swertb.e., p,laintiff's demurrerwas It stated no defense,w this action, no right to tile retention of this stock of goods, OOcallile the written agreement expressly provided that the property should be sold and completely clOjiled out by January 1. 1890; and these contemporaneous oral agreeme;n.ts contradicted the terms Of the written contract, and, in the ahience of fraud or mistake, . were not susceptible of proof. The conclusive presumption was that the contract contained the entire agreement of the parties on this s:ubject, which was fully trea1;ed therein. Thompson v. Libby, 34 Minn. 374, 26 N. W.Rep.1; Morrison v. Lovejoy, 6 Minn. 319, 351, (Gil. 224, 233;) Harrison v. Morrison, 39 :Minn. 319, 40 N. W. Rep. 66.; Underwood v. S@onds, 12 Mete. (Mass.) 275; Allen v. Furbish, 4 Gray, 504; Eighmie v. 98 N. Y. 288. There was no plea of mistake here,and the only basis for avoiding the assignment on the ground of fraud attempted to Qe pleaded is that the defendant was induced tA.l:Jlgn the his reliance on the,promi$eS of the plaintift' to do certain acts in the future. It'is well settled that the fail ure party to perform such promises is not such fraud as will aut4oc!ze a rescission or, repudiation of a conveyance when it does not a,ppear that he who is in default is insolvent or unable to respond.jp. damages for his breach. Finally, it is assigned as error that the court, by its decree in question, a simple money judgment against the defendant for value of the plaintji'f's special interest in the property, when the decree should have been in the ,alternative for 'the recovery of the property or its value. Section 5181 of Mansfield's Digest of the Laws of Arkansas, which was in force in the Indian Territory, by the act of May 2, 1890, (26 St. at Large, p. 95,) when this judgment was entered, provides: "In an a.ctlon to recover the possession of personal property, judgment for the plalntlft may be for the delivery of the property, or for the value in case a delivery cannot be had, and damages for the detention."
It may be conceded that, where the defendant is in a position to return the property, the right to do so, and thereby to discharge his liability and that of his sureties for its value, is reserved to him by this statute, and that the judgment must in that case be in the alternative. The decisions of the supreme court of Arkansas construing this statute go no further than this. Hani v. Ford, 37 Ark. 544; Rowark v. Lee, 14 Ark. 425; Jetton v. Smead, 29 Ark. 372,383. But the record in this case discloses that, more than two years before this judgment was rendered, the replevied property had been sold at public auction by the marshal under executions againElt the defendant, and that from its proceeds he had received over $2,000 in money. He could not therefore have returned the property if the decree had so directed, and it would have been an idle ceremony to have ordered him to do so. .It was perfectly competent for the court, .under these circumstances, to enter a simple money judgmetJ.t against him for the value of the special interest of the plaintiff iJl, :the property. Thus, in Boley v. Griswold, 20,
BURTON
v. ,PLATTER.
909
Wall. 486, 487, Chief Justice Waite, delivering the 0pllllon of the supreme court upon this question, under a statute in the same words, said: "The court must be satisfied that the delivery cannot be made before it can adjudge absolutely the payment of money. But, if so satisfied, it may 80 adjudge. A special finding to that effect is not necessary. An absolute judgment for the money is equivalent to such a finding."
To the same effect is Brown v. Johnson, 45 Cal. 77. The proceedings in this case were far from regular. This was an action at law, and there was no cause of action or defense pleaded in it that was not as good at law as in equity. It should have been tried at law, but its transfer to the chancery docket was on motion .of the interveners, and all of the parties stipulated that it should ,be heard and tried by the master, and participated in the proceedings before him. By this action the irregularities we have not noticed in the earlier part of the opinion were waived. The result is that., in an action for the recovery of personal prop-arty, where the only question at issue under the pleadings is the right to its possession, judgment cannot, in the absence of statutory .authority, by lawfully rendered against sureties on the cross bond given by the defendant for the retention of the property, where no notice or statement of such a cause of action, 'or of any intention to urge it, is given before, and no evidence in support of it is produced at, the trial. One may not plead and try one cause of action, and recover judgment upon another and totally different une. One who attacks an assignment on the ground that it is fraudulent as to creditors not secured by it must plead and prove either that there were unsecured creditors at the time of its execution, or that it was made with the intention of contracting debts to subsequent creditors, that the assignor did not intend to pay, or had no reasonable ground to believe he would be able to pay, and that such debts were thereafter contracted. As neither the interveners nor defendant pleaded or proved either of these grounds for avoiding the ashere, the question of its validity as to creditors was not raised. It is no ground for the rescission or repudiation of a written contract that one of the parties to it has failed to perform an oral promise made the same time with the execution of the written agreement that he would some of its provisions. In a code action, where the statute provides that the judgment may be for the -recovery of the possession of personal property or its value, a simple money judgment for the value of the property may be rendered against the defendant, where the court has found, or the evidence con-elusively proves, that the propertJ callUM b,· returned by the defendant. In such a case it is not necessary to render a judgment in the alternative. The The judgment against the defendant is affirmed, with judgment against the interveners is reversed. without costs. and remanded as to them, with instructions to dismiss their bill to be made parties, with costs.
910 ,h,,1 l'UCll) et Ill. v,, P';NI'J'lllD S'J;'ATES. (CircuIt Court of Appeals, Eighth Circuit. January 27,1893.)
"
No. 162.
1.' CuSTOl\{S. DUTIES:"-HEl\{ElTITOHlllD COTTON HANDKERCHIEFS.
Imitation hemstitchooQQtton handkerchiefs are dutiable .at 50 per cent. ad valorem, as "handkerChiefs composed of cotton," under paragraph 349, Schedule I, of tll.e; tarlJr Mt of 1890, 1md not at 60 per cento'ad valorem, as "embroidered and ,he!HEltitched handkerchiefs," under paragraph 373, Schedule J. .: ' : '" ' Revenue ,: sttrlutes, ,1noliidltlg thoSe 1Ixlng duties on imports, are neither remedial laws Ilor laws founded upon any permanent pUblic policy, and should Jw conStrtled JJ:loststronglyagalnst the govern\Uent; for burdens should not be Jmpos¢don the taxpayer, beyond what such statutes expressly and clearly 'Import. u. S. v. Wigglesworth, 2 Story, 369, and Net & Twine Co. v.' Worthington, 12 Sup. Ct. Rep. 55, 141 U. S. 474, foilowed. DUTIES.
2. ,
Appealfrom','thedu;pult Court of the United States for the Eastern District of MiS.\louri. " Proceeding 'by" Rice, & Co. to review a decision of 'the board ,the, decision of the' surveyor of the of general appra4sers: port of St. Loum.in: "imitati0Il hemstitctted cotton handker':ac'l valorem,', under paragraph 373, Schedule J, chiefs" at 60 per of the tariff act of 1890.' ,The circuit. (JOurt affirmed the decision of the board of appraisers.' ,',T!ieiJnporters appeal. ,;Reversed. ! Statement by Circuit Judge: ,', 'rhe appellant!:!, in:voiced, and entered. ,as "imitation hemstitched cotton handkerchiefs:" The invoice and entry' described the goods correctly, and they were assesSed for duty at 60 per cent. 'ad. valorem, as "hemstitched handkerchiefs," under paragraph 373, SChedule J, of the tariff act of 1890, which "Laces,Eldglugs, embroideries, insertings, neck rutfiings, ruchings" lace windQwcurtains, and other $imilw: tamboured articles embroidered br hand or machinery, embroidered and hemstitchM handkerchiefs, and atticles' made Wholly or in, part of lace,' rufilings, tucktngs,orrochingsi all of the above-named articles, composed offllOtx, jute, cotton,or other vegetable fiber. or of which these substances. 01' either of ora mixture of any of thexq, is the component material of chief value, not specially proVided for in this act, sixty per cent. ad valorem: provided, that of wearing apparel, and textile fabrics, when embroidered by hand or machinery, and whether specially. or otherwise provided for in this act, shall not pay a less rate of duty than that fixed by the respective paragraphs and, schedules of this act upon embroideries of the materials of which they are resPeQtively composed." Appellants duly protested against such assessment, and claimed the goods should be assessed for duty under paragraph 349, Schedule I, at 50 per cent. ad valorem, as "handkerchiefs composed of cotton," which paragraph reads as follows: "Clothing" ready made, and articles of wearing apparel of every desqription, handkerchiefs, and neckties or neckwear, of cotton or other vegetable fiber, or of Which cotton or other vegetable is the component mateor manufactured wholly or in part by the tailor, rial of chief value, made .seamstress,or manufacturer, all of the for'egoiDk not specially provided for in this act, fifty per cent. ad valorem." The protest of appellliUts, was heat:d .by the board of general appraisers. Which affirmed the decision of the surveyor of the port, and this decision of the board was affirmed by the court below, and the importers appealed. Clinton Rowell and Franklin Ferriss, for appellants.
George D. Reynolds, U. S. Atty.