76
FEDERAL REPORTER,
vol. 38.
property within the purview of the tax law, th.e assessment was invalid, and his deed void. A finding of fact will be filed to the effect that the tax was not paid by the defendant, and that the al:lsessment was made to the defendant as owner, when R. Glisan was the true owner; and oflaw that the defendant is entitled to the possession of the premises, and a judgment in bar of theactioD, and for costs.
HAGOOD
'I).
BLYTHE
et al. March 6, 1889.)
«(Jv,.lJuit Oourt,
n. South
Carolina.
L PLEADING-CoPY
e:. BAME..".COMPLAINT. ,
OF ACCOUNT-WaEN NECESSARY.
. The 'allegation in each count was that on a certain day plaintiff's assignor Was duly appointed deputy, "'and performed services in the cause of U. S. iJ· . .0., in the serving and executing· process issued in said cause. whereby he be· .came entitled to the sum of $---, for lawful fees and mileage. as will fully .appear by itemized statement ,thereof indorsed upon the warran t' in said case, and delivered to said [marshal;] that no part of the same has been paid, although payment has been frequently demanded, and although the saId [mar· shall has duly presented the statement of said services to the proper depart, ment of the$overnment, and hail received ** * .the amount so earned bY'lihe said lplaintiff's assignor.] and allowed by the government for his lawful fees and mileage; that heretofore, and before the commencement of this .action. said JpJaintiff's assignor,] for value, duly assigned said cause of action to plaintiff. 'Held. that the complaint was sufficient; and a motion to make more definite and oertain was overruled.
MitcheU &: Smith; for plaintiff. : Barker, Gilliland & Fitz.nmons, Brawley &: Barnard, and Bachman &: Youmans, for defendants. SIMONTON, J.:. This cause comes upon motions made in behalf of the· plaintiffrandalso of the defendant. In behalf of the plaintiff the motion is:foll judgment by default under our twelfth rule, because this is the rulesday, and no answer or demurrer has been put in. On the other hand, the defendants come in claiming that· they have, under the fifth rule, the right to puLin their defense on or before the rules-day, and profferingto:do so if the motions they now make be overruled. Thereupon they demand a copy of the accounfsued upon. And they all:lo pray .Qat·the eomplaint' be made more definite imd certain. These motions a.rebasedon secti'0118 179, 181, Code Civil Proc. S. C., adopted by this
:At·Law;·.
HAGOOD II. BLYTH'.
77
conrt. The motion for judgJpent by default cannot be granted, because the defendants are here in time to make their defense. Let us examine the demand for an account, and the motion made by defendants. The action is on a marshal's bond, against him and his sureties. In order to discuss these motions of the defendant intelligibly we must examine the complaint, and ascertain the cause or causes of action; that is to say, what are alleged to be the facts from which the plaintiff's primary right, I;Ind the defendants' primary duty, have arisen, and what are the facts which constitute the defendants' delict or act of wrong. POUl. Rem. § 453. The complaint sets out the fact that Blythe was at the time of the accrual of the right of action the marshal·of the United States for this district, and that the other defendants were his sureties. Thisis a general.1allegation, applicable to all the counts ofthe complaint. Theil follow 144 separate counts on separate claims; the gist of these being the receipt :by Blythe from the government of a certQ,in specified sum of tuoney earned by a certain deputy-marshal and allowed to 4hn by the government far services as deputy marshal, and his failure t9 paythEl same,. Then follows a stl1tement that the deputy-marshal has assign,ed this claim to plaintiff. The suit then is on 144 distinct claims, baving p;o cOlmection with each other; not on items of an account making a aggregate, but for the receipt of and the .non.,payment ofa sum of money, each being by itself,-a unit,-standing or falling Each claim was once the property of a person other than plaintiff, more than one person. They come together now simply because .each individual holding each claim has assigned it to the plaintiff. An account is. a history of dealings between the plaintiff and the defendant, or of him under whom plaintiff claims. These counts show distinct and sep_ claims, each being a single transaction. There is no room and no reason for an account here: The other and more difficult question is on the motion that thecl>mplaint be made more definite and certain. Under the Code ofProced. ure the complaint must contain a' plain and concise statement of the facts constituting a cause of action, without unnecessary repetition. Section,163. And. in section 180 it is provided that in the construction of a pleading for purpose .of determining its effect its aliegatiQns shall be liberally construed, with the view of substantial justice between the parties. Dowie v.Joyner, 25 S. C. 127, construes and applies t!l(lse sections. In Hogg v. Pinckney, 16 S. C. 387 ,"all the facts which plaintiff isrequir(;jd, to prove to entitle him . to jl. verdict must be alleged in the complaint;" that is to say, "the facts," "and not the legal effe,ct Or aspect. of those facts, and not the ID.ere evidence or probative matter by )vhich their existence is established." Pam. Rem. § 517. Let us As each count is preciselylil\e the others, nan'les and amounts only being changed, one will .be used as a specimen. 'i.For a first cause of.action:" (1) Thjl.t on or about the 25th April, ,11383, W; V. :H;olden was a deputy United States marshal in and for the said, district /jf South Carolina, duly appointed by the said Absalom Blythe; and· Olil about the said date, as ,seryiQesin
18
vol.
38..
the 'cause of: the t1nited States against Dolphtn:' Oollins, in the serving \lnd the process issued in'saidcause, whereby he became enJ titled to the)isumof $18;96 fat lawful fees and mileage, as will fully pear by the itemized' statement thereof, indorsed upon the warrant in said cause, and' deliYered to the said Absalom Blythe. (2) That no part of the sarnE1' has been paid, although payment has been frequently manded ,add .although the said Absalom Blythe has duly presented the statement Of sa:idservices to the proper department of the government; and has received $18.96, the amouilt so earned by the said Holden, and ailowooby the' his lawful feeBand mileage. (3) That heretofore. arid! before the commencement of this action, said Holden, forvahie, duly assigned saidcituse of action to plaintiff. From thiS it appears 'that i the case of plaintitf'1s this: Blythe wasthemarsbal, nnd the other defendants his sureties on his official bond, responsible for his official act·. , 'As such marshal he appointed One' W. V. Holden his dep.. uty;, that' suoh deputy, and as deputy, performed services. ilt the, case of the United' States'll. Collins, inse.rving and executing process', whereby he became entitled to $18.96, as by an itemized account on"the warrant in said case; that Blythe duly presented the statement of said services to the proper departrnent of the government; that the 'SUm of $18.96 was allowed, and the money was paid thereon to Blythe;' that n6part tbereof has been paid, although' payment has been frequentlyidetnanded.,Now, the legal primary right here set up for plaintiff is that the sum of money so aHeged to have been received by BlythecwaS the money of Holden', his assignor,) received by him in his official capacity'llS marshal for Holden. That which is charged to be the legltVprimary duty of Blythe: as marshal is the paymt:nt of this money to Hblden or his assignee. And the delict or wr0ng on the part of Blythe, marshal, the consequences of which the complaint seeks to fasten on the' sureties, the DoIi-'performance of this duty in the failure to pay over the money to Holdeli orhis assignee. Porn. Rem. § 526. The gist of ttl'e' action is not as to the amount or value of services rendered by Holdeni,"but it'is the sUm of money allowed b:y the government to lIoldeh {or serviees, and so settled, which surn of money the marshal reciliVedforHoldenand did not pay to him. In order to sustain this count, the "determinate, unchanged, and positive elements of fact which must be 'alleged are:' (1 ) That Blythe was marshal, 'with a bond, and that on thisbonddefelldants were sureties; (2) that ,Holden was his dep" uty. properly (3) that as such tleputy he performed services for the United 'States; (4) that Blythe, as marshal, presented the claim for such services, and that the claim was allowed in whole or in part by the govermnent; (5)that Blythe, as marshal, received from the ment the sum Of money soaUowed; (6) that henaver paid it over to Holdeh; (7) 'that Holden has the claim to plaintiff. . .The evidence or probative matter by which tihe existence of these eselements not be fletotit'itithe pleading. Thhsj itForder' to show that: Blythe Was marshal, his 111ission must' :be proved. It he.ed hot be set out in the In
is
,HAGOOD V. BLYTHE.
,79
order to prove that Holden was deputy, his appointment must be proved. It need not be set out. So the fact that he did:service as deputy-marshal, and had the claim therefor, must be proved. But these services pleading,-only their result. This acneed not beset out in detail in tion is not on this account, nor for these services. Nor is any issue : raised upon any item of, or the total value of, the service. The suit is for a sum of, money allowed by the government for service and receivedby Blythe. Be the account for services as large as possible, and the :sum allowed as small as possible, the consideration of the first does not arise, and the only reason that the consideration of the last arises is because ,it is charged that Blythe received it for Holden. So it must be alleged,andproved that Blythe presented this claim, and got so much ofit aslvas allowed. The proOf may require theprodnctiori of his ae, -counts as, marSllal. for receipts and expenditures., But these, accounts need not be set out. So, also. the assignment by Holden must be alleged, and the fact proved. The evidence proving it hot be set out in the -COmplaint. 'these determinate. unchanged, axill positiye of fact must be alleged in the complaint, and must be sustained by the subQrdinate make up the probative matter, and ne,ad not be irithe complaint. Then will arise thequestionsoflaw: Are the , sureties of the marshal responsible to his deputy for money received un.dk these by the marshal ? Can such a claim be Can it be enforced in this court? The conclusions of fact stated in the of thalis,to,say, count are sufficient, if proved,to raise tllese , if it be ,as, allege,d, tpatBlythe" the marshal, as re, ,ceived from the government a certain sum ,ofmolley allowed 'for sel,vices rendered by Holden, this will raise ,the legf\l ,question ,of >the H!tbilityof the, defendants. "It is tiue that the count i;n,qUElstionis terse to in somerespepts. It alleges "that p.o part of the same has been:paid." Hdoes not say "by whom." It also adds, "altho"ugh , payment has been frequently demanded." It doesuot say "by whom, :or "But the context states that the government h¥ paiqit to apd"construing the allegation liberally, as provided in ,section 180, Oode of Procedure, we must read it as if it in terms stated t):J.at ...no vart of thl3 same has beeu paid by Blythe or his sureties, althopgh payrtlent has been frequently demanded of him. It is mo.tion to the complaint he overruled" and that the defendants put in their dflfense as they may be advised, on or before the 25th of this month, andtllat the cause be placed on the for a helLring at the term of this court.· . \;Jj
I,
80
Jl'EDERAL REPORTER,
UNITED STATES 11. DE GOER. l
(Distriot Oourt, S. D. New York. February 21, 1889.)
1.
ABATEMENT AND REVIVAL STATU'l'ES. ,
FORFEITURES UNDER REVENUE LAWS -
STATE
S.
SAME-REVENUE CASES-COMMON.LAW RULE.
S4M:E-REVENUE CASES-DEATH OF PARTY.
Suit having been brought in 1862 for forfeiture of the value of an importation of gloves for fraudulent under-valuation, under section 66 of the act of 1799, (1 St. at Large, 677.), and. upon defendant's default, an assessment of damages made, and a judgment entered after his death. which was set aside on motion as irre!('ular. upon s(',ire facias to revive the action against his administrator, lteld,that the act of 1799, though in part remedial, was mainly punitive, .andin this case hip;hly penal; and the action for forfeiture, not bemgdivisible, as respects the actual pecuniaryloss to the government, W!loS subject to the generalrule, and abated by the defendant's death.
Scire Facias to Revive Action against Administrator. 1861 and 1862 the defendant made five importations of gloves to · this port, lYhich were e.nteredby him at the custom-house, and received · for consumption. Iri August, 1862, a suit was commenced against him for the sum of 833,644.60, their value. alleged to be forfeited to the government under section 66 of the act of 1799 (1 St. at Large. 677) for fraudulent under-valuation. Defendant appeared, but no answer was 'ever filed, and nothing further was done in the suit until after the death of the defendant, in March, 1877. In October, 1877. the United States attorney, in ignorance of the defendant's death, and upon affidavit of his default, assessed the damages, and entered judgment for $68,229.55. 01'1 August 7, 1888, upon motion of the defendant's administrator, the ,jud;;ment was set aside and vacated, as being irregularly entered after the defendant's death. A counter-motion for leave to enter the judgment nU1tc pro tunc, as before his death , was dtmied. A writ of scire facias was ·thereupon issued, directing the administrator to show cause why the suit should not be revived against hnn administrator of the deceased defendant. Stephen A. Walker, U. S. Atty., and Abra.m J. Rose, Asst. U. S. Atty. Griswold, Deuel & Griwold, for the administrator. BROWN, J., (after stating the facts as above.) This action is for the forfeiture of the value of gloves imported by the deceased, for alleged fraud1 Reported
by Edward G. Benedict, Esq., of the New York bar.