ALABAMA IRON & RAILWAY CO. v. AUSTIN et al., 94 F. 897

PARLANCE, District Judge, after stating the facts, delivered the opinion of the court. The appellee contends that, as the demurrer and the plea were filed after the answer, they came too late, and should not be noticed. But it is clear that the complainant consented that the demurrer and the plea might be filed and be passed upon, and he cannot now be heard to object that they were improperly or unseasonably filed.

The trial judge evidently was of opinion, and properly so, that the demurrer and the plea were before the court by consent of parties, and in the decree he passed on the demurrer and the plea, as well as on the merits. But there was no force in the demurrer. The bill made out a sufficient case to authorize a court of equity to take jurisdiction. As to the plea, whatever merit it may have had, the defendant failed to offer any proof in its support, and it was therefore proper to overrule it. The order dismissing the law case, standing alone, did not substantiate the plea.

The attempts to show by an affidavit made after the trial of i * s cause the nature of the law action which was dismissed cannot, of course, avail the appellant. On the merits, we are of opinion that the decree of the lower court should be reversed, for the reason that the complainant failed to prove his case. Three different theories as to the facts and circumstances of this case are presented: The bill charges substantially that the notes were transferred by the bank in contemplation of bankruptcy and otherwise, in violation of Rev. St. U. S. § 5242, for a pre-existing debt of the bank.

The answer avers, in effect, that the transfer was not to secure a pre-existing debt, but to secure the collection of drafts hy tlie bank. The prooí would make a case where the notes were put in the hands of the receiver of the Sheffield & Birmingham Coal, Iron & Railway Company for payment by him, and where, instead of paying the notes, he kept them without right or authority. Inspection of the testimony of the two witnesses, which constitutes the entire evidence for the complainant, shows that he failed to prove the essentials of his bill of complaint. In Railroad Co. v.

Bradleys, 10 Wall. 299, it was said: “It is hardly necessary to repeat the axioms in the equity law of procedure that ihe allegations and proof's must agree, that the court can consider only what is put in Issue by the pleadings, that averments without proofs and proofs without averments are alike unavailing, and that the decree must conform to the scope and object of the prayer, and cannot go beyond them.” Tbe decree appealed from is reversed, and the cause is remanded to said circuit court, with instructions to dismiss ihe bill.