718
FEDERAL REPORTER.
authorized interference with the process of this court, in so far as it sought to prevent the collection oOhe tax which this court had ordered. But in point of fact, the county judges were also embraced in the restraining order. The ease has been argued for the respondents as if they had in this proceeding pleaded, in their return to the writ, the identical matters relied upon in the bill filed in the state court to obtain an injunction. But it will be observed on an inspection of the return that. they have pleaded no such matters. They have planted themselves squarely on the ground that the injunction in the state court, no matter upon what ground it was granted, is a sufficient reason why a peremptory writ ought not to issue in this case. That plea, as it has been settled for years, is untenable. , The county clerk files an additional plea, to the effect that the bonds upon which the judgment in this caljle was obtained have been adjudged to be invalid ina proceeding or in a suit brought in the state court, which judgment, it is claimed, is binding upon the plaintiff in this case, because he was not an innocent purchaser of the bonds.. That would be a good defense to a suit upon the bonds, but, as has been repeatedly held, especially in the case of Ralls Co. v. U. S., 105 U. S. 734, it is not a defense which can be urged against the issuance of a writ of mandamUB, after a judgment on the bonds has been obtained. The same point arose in a case decided' in this court but the other day, against county judgesofthe same county. HiU v. Judges of County (Jourt oj Scotland Co., ante, 714, (1153 and 1287 consolidated.) The result isthat the return in this case, No. 2.610, does not assign any sufficient reason why a peremptory writ should not issue; and the same is true of the returns filed in each of the following cases,which were !ubmitted at the same time, viz.: Nos. 2,611, 2,612,2,6J3, and 2,614. 10 all those cases,' therefore, the demurrer to the respondents returns will be ·$U'stained.
LEAVENWORTH·
and others
t1. PEPPER
and others.
(Oirouit Oourt, B. D. Miaaouri, B. D. November 2, 1887.) EQUITy-PLEADING-INFORMATION AND .BELIEF·
.A bill in equity by the grandchildren of the grantor in an absolute deed, praying to have a constructive trust imposed upon the grantee in the conveyance, on the ground that the grantor was wanting in mental capacity when she executed it, andwalJ induced to sign it by the fratldulent representations of the grantee's husband. is not demurrable because the allegoations in the charging patt,8.s Msuch representations, are made upon information and belief only, . '
In Equity. .On -demurrer to the bill. Dyer, Lee &:ElliB, for complainants. Hough, OveraU &;, Judson, for respondents.
LEAVENWORTH. 'V. PEpl'ER.
THAYER, J., (orally.) In the case of Leavenworth against Pepper and {)thers, a proceeding in equity, there is t\I general demurrer to the bill of -complaint by certain of the defendants. The bill is filed by certain grandchildren, heirs at law of one Esther' Leavenworth. It alleges, in substance, that Esther Leavenworth, in 1879, was the owner of four ,cels of real estate in the city of St. Louis; that she was at that time ble in body and mind, and unable to make a valid conveyance; that she was living with her son-in-law, who was acquainted with her condition, and took advantage of it, and induced her to make a conveyance ofthese four parcels of real estate to his wife; representing at the time that, in case of the grantor's death, the property could be more readily divided, stI;ldtha.t his wife, the grilntee, would. hold the property in trust for the heirs at law of the grantor; that thereafter Esther Leavenworth died, when the sotl-in-Iaw, contriving to cheat and defraud the heirs at law, induced his wife to sell one of the parcels of property for t:l1e sum of $2,500, which sum he appropriatedjand further iilduced his wife to place a mortgage in the sum of $7,500 upon the remainder of the property ,the proceeds .of which inortgage he als(J There is a prayer for special . relief of various kinds, and also a prayer for general relief. Now, unquestionably, upon the state of facts presented by the bill, the -court would be authorized to enter a decree declaring that the conveyAnce made in 1879 was a conveyance upon trust for the heirs at la.,w of the grantor, Esther Leavenworth, and awarding them such furthetihcidental relief as would follow from that adjudication. There is no defect, h,lthe substance of the bill. The particular point of objection made is that in the charging part of the bill, where it a.lleged that Mrs. Leavenworth was in a feeble condition of mind. and body, ahd capable ofmaking a valid conveyance, and in that part oithe bill whete it is charged that she was induced to make the conveyance by tations that the grantee would hold the property in trust for 'the beihf at law, the allegations are only made upon information atldbelief. 1;'his is supposed to be good reason why the defendants should 'not be calIed upon to answer the bill. ' I. think that, .position is untenable. If the court was asked to, .any interlQcutory orders, such as to issue an injunction sales of any of the property pending suit, or if it was asked to' a,ppoip.ta receiver of the property pending the litigation, the court WOUld lookat thecharactet· of the averments, and finding that they were only made upon information and belief, it would probably refuse any such interlocutory orders; but the fact that these averments are made upon Informaand belief is no reason, in my judgment, why the defendants should not .answer the bill. The de1llurrer will therefore be overruled, and the defendants will be required to answer by the December rules. .
720
FEDERAL
WYMAN tI. LANClASTER
«()il'cuit Oourt, 1.
E.n.
Mis8ouri. November 20, 188'l.),' .
CARRIERS-LIEN FOR FREIG1lT":-RETENTION OF GOODS IN CUSTOM-HoUSEACTION TO RECOVER.
S.
In order to recover property held by a collector or other customs' officer under Rev. St. IT.S. § 2981, which provides that whenllverthe collector shall be notified of ll, lien for freight on any goods imported shall hold the same until it is shown that the freight has been paid or secured, the consignee should first tender the amount of freight he admits to.be due, and if declined he should tender.a sufficient bond conditioned to pay aU freight that may be found to be due or that may be adjudged due by any court of competem jurisdiction. Should this be declined, proof of these tenders should be made to the coUe'ctor; who, if he finds the bond adequate to secure the carrier. should release the goods.on. the deposit with him, for the use of the carrier, of the bond originally tendered. . . .
SAME.
. In an action to recover property held by a collector of customs or other customs officer under Rev. St.U. S. §2981, providing for the detention of goods upon which the carrier has a lien for freight. and arbitrarily detained by him 'after tender of a sufficient bon'd for the security of the carrier, the petition should show all the steps taken to secure a release of the property, including the tender of freight, ,the tender of the bond, and the proof of these facts before the collector.
John M. Holmea, for plaintiff. . Tkos. P. Bashaw, U. S. Atty., fot defendants. THAYER, J., (orally.) In this case a question arisesas to the duty of a collector of customs when he is in possession of property imported from .abroad on which all of the duties due the United States have been paid, and a controversy arises' between the consignee of the goods and the carrier who has transported them from the sea-coast in bond, as to the amount of the freight that is due for such transportation. The statute rellj.ting to the subject is as follows: "Section 2981. Whenever the collector or other chief officer of the customs of any port shall be notified in writing by the owner or consignee of any vesselor vehicle arriVing from any foreign port, of a lien forfreight on any merchandise imported in such vessel or vehicle and remaining hi his custody, such officer may refuse the delivery of such merchandise from any public or bonded , warehouse, or other place in which the same shall be deposited, until proof to his satisfaction shall be produced that the freight due thereon has been paid or secured; but the rights of the United States shall not be prejudiced thereby, . nor shall the United States, or its officers, be in any manner liable for losses consequent upon such refusal to deliver."
It is perfectly clear, in view of that section, that if the consignee does not pay tha freight, or offer to secure it, that it is the duty of the collector to retain the goods in his possession to secure the carrier's lien. It is equally clear, in lPY opinion, that it is the duty of the collector to deliver the goods when the freight has been tendered, or in the event of a controversy as to the amount, when the amount claimed by the carrier has been duly secured. A practical difficulty arises in cases of this kind