789. 635 nearly $10,000, and constituting the bulk of his estate, was by inadvertence. Bock was present when the schedules were_prepared, and it cannot be that he and Lane both were unaware of the fact that Schedule A contained nothing which, by any possible construction, could include the goods in Lane's store. Why these goods were omitted from Schedule A would be a the defendants were entitled to a verdict | erty assigned, of his stock of goods worth upon the further ground that, if the instrument were treated as a general assignment under the statutes of Iowa reg. ulating assignments for the benefit of creditors, it was void because, when taken in connection with certain conveyances executed about the same time by the assignor for the benefit of his wife and wards,― all the instruments constituting, in the judgment of the court, one transaction.-matter of mere conjecture. The probabiliit gave a preference to some creditors over others, in violation of the statute, and for that reason was void. Van Patten v. Burr, 52 Iowa, 518, 521, 3 N. W. Rep. 524. Did Lane's stock of goods pass to Bock by the assignment of November 20, 1884? If not, they were rightfully attached as his property. Although Lane, in the assignment, expressed his inability to pay bis debts with punctuality or in full, as well as the desire to make a fair and equitable distribution of “his property among all his creditors," and although the first part of the granting clause embraces "ail the lands and all the personal property of every name and nature whatsoever" of the assignor, the property bargained, sold, and assigned is stated in the words immediately following, in the second part 1 the same clause, to be that" more particularly enumerated and described in the schedule hereto annexed, marked 'Schedule A,' or intended so to be;" which schedule, together with Schedule B, is made, by express words, part of the assignment. The schedule which thus particularly enumerated and described the property conveyed is therefore as much a part of the assignment as if it were embodied in it, word for word. In that view, the general description in the first part of the granting clause must be held to be limited by the words which immediately follow, indicating that the property, real and personal, intended to be conveyed, was enumerated in the schedule annexed. The particular description must control the previous general description in the same clause, although the words "general assignment" are at the head of the instrument. Nor is the result affected by the words "or intended so to be," following the words "Schedule A;" for what was intended must be determined by reference to the schedule, which is expressly stated, in the instrument of assignment, to contain a description of the property which was assigned to Bock. This interpretation is said to be inconsistent with the purpose of the assignor, avowed in the assignment, to make a fair and equitable distribution of his property among all his creditors. But this language must be taken in connection with other parts of the instrument, showing that the distribution proposed had reference only to the property particularly enumerated in the schedule. We must assume that Lane did not verify Schedule A by his oath, without reading or understanding what it contained. While, by accident or inadvertence, be might have omitted from it property of trifling value, it is unreasonable to suppose that the omission from the schedule, declared to contain a more particular | enumeration*and description of the prop | ty is that the assignment and schedule were not prepared at the same time, and that the conclusion ultimately reached by Lane was to make only a partial assignment, which was permissible under the laws of Iowa, and, through Bock, his clerk and assignee, retain control of the goods in the store without subjecting the latter to responsibility to creditors for their management; for, by the terms of the assignment, the assignee would only be liable to them for the proper management and distribution of the property enumerated and described in Schedule A, made part of the assignment. Be this as it may, and without saying that the intention of the parties could be ascertained by parol evidence or otherwise than from the assignment itself, we are of opinion that the better and safer construction is that the general words in the first part of the granting clause are limited by the particular description in the latter part of the same clause of the property actually conveyed to the assignee. These views are sustained by the weight of authority; and we are referred to no decision of the supreme court of Iowa to the contrary. So that whether the property in question passed to Bock, by virtue of the assignment, is to be determined by the general rules governing the interpretation of written instruments, the controlling one of which is that effect must be given to the intention of the parties as disclosed by the instrument to be construed. It will be well to refer to some of the adjudged cases. A leading one upon the subject is Wilkes v. Ferris, 5 Johns. 335, 345, in which an assignment for the benefit of creditors conveyed "all the goods, property, wares, merchandises, chattels, vessels, debts, sum and sums of money, claims ande demands, and effects, belonging to and now due and owing to the said Henry Cheriot, or to which and in which he has any right, property, claim, or demand, which said goods, wares, and merchandises, hereby granted and sold, are particularly described and enumerated in the Schedule A, signed by the said Henry Cheriot, and to these presents annexed," etc. It was contended that the assignment was broad enough to embrace any article not contained in the schedule. But the court said: "This was not, in fact, a general assignment of all Cheriot's estate; for though the words, in one place, be general, yet the assignment immediately goes on to specify, by a reference to the schedules annexed, the specific articles of property assigned; and it therefore could operate only upon the articles specified; for, as the court said in Munro v. Alaire, 2 Caines, 327, [Chief Justice KENT delivering the opin ion,] if a general clause be followed by special words, which accord with the general clause, the deed shall be construed according to the special matter." This case has been often cited with approval. In Driscoll v. Fiske, 21 Pick. 503, 505, 507, the court construed an assignment made by partners in trust for the benefit of their creditors, who should become parties to it, of "all their books, stock in trade, printing apparatus and machinery, books of account, book debts, notes, and demands, and all their other property of every name and nature, except such as is exempt from attachment, most of the same being now at their place of business, a schedule of which is annexed, and other and fuller schedules of the property hereby assigned shall be hereunto annexed as soon as the same can be conveniently made." The schedule contained three items, namely, "stock of books in store, printing-presses and materials, notes and demands," etc. A creditor subsequently attached certain furniture remaining in the possession of one of the partners, after which the assignees inserted it in the schedule. The furniture was held subject to the attachment. court said: "The general phraseology in the assignment is sufficient to include the furniture which is in question. The conveyance of certain property specified, and of all other property of every name and nature, except such as is exempt from attachment, might well be construed to mean all the property which the assignors. had jointly or each of them had severally. But we are to take the whole instrument into consideration, in order to ascertain the true intent and meaning of the parties. The The general words are restrained by reference to the schedules which were annexed before the attachment was made. So that the assignment, independently of the parol evidence, cannot by fair construction be said to include the furniture of the individual assignors. Wilkes v. Ferris, 5 Johns. 345." In the same case it was held that parol evidence that it was intended to include the furniture in the conveyance tended to contradict, not explain, the writing, and was inadmissible. See, also, Tucker v. Clisby, 12 Pick. 22. itors of the assignors to their own use. The court, holding that the money did not pass by the assignment, said: "In the grant before us, the general descriptive words employed would certainly be sufficient, in the absence of any descriptive clause, to pass all the debtor's property; but we must suppose that the grantor had a purpose in the more particular description which he thought proper to give in the schedule, and that that purpose was what he declares it to be, a more particular and full description of the property conveyed. To withhold this meaning from the words of reference to the schedule is to deny to them all import whatever; and that is justified by no rule of construction. If, instead of referring to the schedule for a particular description of the property, the grantor had followed the general description with such words as 'namely,' 'that is to say,' or 'as follows,' and set out in the body of the assignment itself the items enumerated in the schedule, there could hardly have been a doubt but that the preceding general words of description would have been restrained and confined to the subsequent enumeration. And, if that be so, how does the fact that the schedule, instead of being incorporated in the body of the deed, is on a separate sheet of paper annexed thereto, change in any manner the application of the principle? For, the schedule being a part of the deed, we should read it as if inserted in the body of that instrument. The above cases, in our judgment, rest upon sound rules of interpretation. To the same effect are U. S. v. Langton, 5 Mason, 280, 288; Guerin v. Hunt, 6 Minn. 375, (Gil. 260;) Wood v. Rowcliffe, 5 Eng. Law & Eq. 471; McAlpine v. Foley, (Minn.) 25 N. W. Rep. 452; Rundlett v. Dole, 10 N. H. 458; Belding v. Frankland, 8 Lea, 67; and Scott v. Coleman, 5 Litt. (Ky.) 349. See, also. Burrill, Assignm. (5th Ed.) pp. 192-198. Numerous authorities are cited for the plaintiff which are supposed to announce a contrary doctrine. Most of them, however, will be found, upon careful examination, to proceed upon the peculiar wording of the instruments construed. Among these cases is Bank v. Horn, 17 How. 157, 159, 160, where the question was whether a certain lot was embraced in a cession made for the benefit of creditors under a statute of Louisiana, approved March 26, 1826, relating to the voluntary surrender of prop In Mims v. Armstrong, 31 Md. 87, the precise question here presented was decided. The deed of assignment for the benefit of creditors in that case declared that the assignor was "indebted to divers persons in divers sums of money, which, by reason of sundry losses and misfortunes, he has become unable to pay in full, and is desir-erty by insolvent persons. Laws La. 1826,p. ous of providing for the payment thereof, as far as he can, in a just and equitable manner, by assignment of all his property and effects for the purpose;" and it conveyed "all and singular his goods, chattels, promissory notes, debts, wares, merchandise, securities, and vouchers, for and affecting the payment of money, claims, demands, choses in action, and property of every name and nature whatever, of and belonging to him, and which are more particularly and fully enumerated in the schedule hereto annexed, marked 'Schedule A.'" The assignee sought to recover certain money, not named in the schedule annexed to the assignment, and which had been appropriated by particular cred 136. That case does not bear upon the question here, for the court held it to be apparent that the lot in question was intended to be included in the debtor's schedule, but was imperfectly and erroneously described init; and, by the local statute, all the prop-➜ erty of an insolvent petitioner mentioned in his schedule was fully vested in creditors from and after the cession and acceptance, the duty of the syndic being to take possession of it, and to administer and sell for benefit of the creditors. "Consequently," Chief Justice TANEY said, “if, under the ambiguous or erroneous description in the schedule, this lot must be regarded as omitted, it still passed by the cession." That was not, then, a case of 289. property being omitted altogether from a schedule made part of an assignment, and describing the property assigned. Equally inapplicable is the case of National Bank v. Bank of Commerce, 94 Ill. 271, 279, where the question was whether the claim of a particular bank was included in a deed of assignment for the benefit of creditors, which, after providing that the assignee should, out of the proceeds of the trust property, if sufficient, pay all the debts due "to the parties severally named in the schedule of creditors, to be hereunto annexed," added, "it being in. tended to include in said schedule the names of all the creditors of the party of the first part, with the amount due to each of said creditors. The bank referred to was not named in the schedule subsequently prepared and annexed, but the court held that it was not excluded from participation in the assets; observing that the language last above quoted would not have been used if the purpose had been to exclude some creditors from the list to be subsequently made and incorporated in the schedule. It requires no argument to show that this decision has no application to the case before us. In support of the plaintiff's position reference was also made to Platt v. Lott, 17 N. Y. 478, and Turner v. Jacox, 40 N. Y. 470. But of these cases it was said in Holmes v. Hubbard, 60 N. Y. 183, 185, that the instruments construed in them were general assignments of all the property and effects of the assignors for the payment of all their debts. And, in the later case of Bank v. Roche, 93 N. Y. 374, 378, it was said that "it is a rule for the construction of all written instruments conveying property that, if a general clause be followed by special words, the instrument shall be construed according to the special matter; and in the application of this rule it is held that the general words of an assignment should be restricted by a subsequent clause referring to a schedule annexed for a more full description;" citing Wilkes v. Ferris and Holmes v. Hub. bard, above rited. Similar criticism could be made upon other authorities relied upon by the plaintiff. But it is unnecessary to extend this opinion by an examination of them. The plaintiff lays stress upon the Iowa statute relating to assignments for creditors in force when Lane's assignment was made. That statute provides that "no general assignment of property by an insolvent, or in contemplation of insolvency, for the benefit of creditors, shall be valid, unless it be made for the benefit of all his creditors in proportion to the amount of their respective claims;" that "the debtor shall annex to such assignment an inventory, under oath, of his estate, real and personal, according to the best of his knowledge, and also a list of his creditors, and the amount of their respective demands; but such inventory shall not be conclusive [as] to the amount of the debtor's estate; and such assignment shall vest in the assignee the title to any other property belonging to the debtor at the time of making the assignment; *" that "the assignee shall at all times be subject to the order and supervision of the court or judge, and the said court or judge may, by citation and attachment, compel the assignee, from time to time, to file reports of his proceedings, and of the situation and condition of the trust, and to proceed in the faithful execution of the duties required by this chapter;" that "no assignment shall be declared fraudulent and void for want of any list or inventory as provided in this chapter;" and that "the court or judge may, upon application of the assignee or any creditor, compel the appearance in person of the debtor before such court or judge forthwith, or at the next term, to answer under oath such matters as may then and there be inquired of him, and such debtor may then and there be fully examined under oath as to the amount and situation of his estate, and the names of the creditors and amounts due to each, with their places of residence; and may compel the delivery to the assignee of any property or estate embraced in the assignment." 1 McClain, Ann. St. Iowa, 849, §§ *2115, 2117, 2123, 2124. We do not perceive that these statutory provisions determine the question before us. In the event of a general assignment of property, by one insolvent or in contemplation of insolvency, for the benefit of creditors, the debtor is required to annex to the assignment an inventory of his estate, and the assignment is not invalidated or rendered void for the want of such an inventory. Whatever estate belongs to the debtor, at the time of a general assignment, passes, by force of the statute, to the assignee. The transaction contemplated in the Iowa statute, and termed a general assignment, "is a dis. position of all the property of the insolv. ent for the benefit of all his creditors." Van Patten v. Burr, 52 Iowa, 518, 521, 3 N. W. Rep. 524, 527. But the assignment in question here was not a general assignment. It was only a partial one. The debtor assigned, and from the terms employed by him could have intended to assign, only the property particularly enumerated and described in the schedule annexed to the instrument that passed the title. The plaintiff concedes that partial assignments are permissible under the statutes of Iowa. Lampson v. Arnold, 19 Iowa, 479, 486. The statutory provisions just referred to have reference only to general assignments. For the reasons given we are of opinion that the court did not err in holding that the goods attached did not pass to Bock by the assignment in question, and were subject to the writs that came to the hands of the defendants; and the jury were properly instructed to find for the defendants. This disposes of the case, without the necessity of considering whether the assignment, if regarded as a general assign. ment of the debtor's property, was or was not void under the statutes of Iowa. Judgment affirmed. *659 (139 U. S. 658) ALLEN, Comptroller, v. PULLMAN'S PALACE CAR Co., (two cases.) (April 13, 1891.) INJUNCTION JURISDICTION-ILLEGAL TAXES. 1. Injunction will not lie to restrain the sale of the property of a sleeping-car company to collect a privilege tax or license on the ground of the unconstitutionality of such tax, where no independent ground of equitable jurisdiction is shown, and the consequences sought to be prevented may be avoided by complying with the provision of the state laws in the case of alleged Illegal taxes. 2. Decrees granting such injunctions will be reversed, though the objection to the jurisdiction of a court of equity in the premises was raised for the first time on appeal. HARLAN and BROWN, JJ., dissenting. Appeals from the circuit court of the United States for the middle district of Tennessee. G. W. Pickle, Atty. Gen. Tenn., for appellant. E. S. Isham and John S. Runnells, for appellee. FULLER, C. J. These were bills filed in the circuit court of the United States for the middle district of Tennessee against the comptroller of that state for an injunction restraining him from the collection from complainant of certain privilege taxes or license fees for the years 1887, 1888, and 1889, under laws of the state of Tennessee in that behalf, which complain ant averred to be in conflict with the federal and state constitutions, and the taxes accordingly illegal and void. In No. 1,381, the bill alleged that the comptroller was threatening to issue his warrant for the collection of the taxes, and to levy it upon complainant's sleeping-cars, "and your orator believes and fears that said defendant, unless restrained by this honorable court, will proceed to force the collection of said tax so illegally assessed and claimed, by distraining and seizing upon your orator's cars from your orator, and that the proceedings threatened for the collection of said taxes will lead to a multiplicity of suits, and will greatly harass your orator. Your orator further shows that all the sleeping and drawingroom cars aforesaid running in the state of Tennessee are attached to through express trains on the roads of said railroad companies; that prior to their arrival in Tennessee seats and sleeping berths therein have always been sold by your orator to persons traveling from other states into Tennessee; that your orator has at all times contracts with passengers to give them the accommodations furnished by said cars while traveling upon such railroads; that, unless your orator pays the taxes so illegally imposed upon it, your orator believes and fears that said defendant will, unless restrained therefrom by this court, levy upon and seize, in order to force from your orator said illegal taxes, said sleeping and drawing-room cars while the same are in actual use and running attached to said express trains; that thereby the traveling public will be discommoded, the carriage of passengers interstate will be prevented, your orator and said railroad companies may become harassed by many suits for damages by passengers for not furnishing them the accommodations they contracted for, the credit and reputation of your orator for furnishing comfortable accommodations, which credit and reputation are of great value to it and have been established by strict attention to business and at great expense and trouble for many years, will be broken up, and the good will of said business greatly impaired, and thereby your orator will suffer great and irreparable injury." In No. 1,382 complainant averred that the comptroller had issued his warrant to the sheriff of the county of Davidson, Tenn., and the sheriff, by his deputy, one Hobson, "has, by force, and pretending to act under said warrant, seized upon the sleeping car Wetumpka,' belonging to your orator, and now holds the same in their possession; that said, car is reasonably worth $8,000; that said Hobson has advertised and threatens to sell said car to satisfy said illegal and pretended tax; that said sleeping-car of your orator when seized was being used by your orator in the carrying on of interstate commerce as aforesaid, and was in use as an instrument of interstate com. merce, and was in Tennessee only by virtue of such use, and was therefore not liable to be taken in satisfaction of said tax, even if it had been a valid tax; that the railroad companies over whose lines of road your orator operates cars are common carriers, and are obliged by law to take upon their trains and carry all who properly present themselves for carriage, whether they are traveling between points wholly within Tennessee or not; that such passengers, traveling locally in Tennessee, sometimes apply for sleeping car accommodations in your orator's cars attached to such train, and, if your orator is obliged to receive them on its cars, the the state of Tennessee by such tax act forces your orator to pay such privilege tax, and take out such license, or to cease carrying on the interstate commerce in which it is now engaged; that said defendants have demanded said three thousand dol lars from your orator, and have declared that they will force your orator to pay the same; that they now threaten to sell said car so seized by them, and your or ator believes will do so unless restrained by this honorable court; that said car is very valuable, but will not bring its full value at a forced sale, and your orator fears that it will be sold for a small amount not sufficient to pay said tax, and your orator believes and fears that said defendants, unless restrained by this honorable court, will thereupon proceed to enforce the collection of said tax so illegally claimed, by distraining and seizing upon your orator's other cars, and that the proceedings threatened by defendants for the collection of said taxes will greatly harass your orator. Your orator further shows that all its sleeping-cars aforesaid running through the state of Tennessee are attached to through express trains on the roads of the said railroad companies; that prior to their arrival in Tennessee seats and berths have always been sold by your orator to persons traveling from other states into 299. *661 Tennessee; that your orator has at all times contracts with passengers to give them the accommodations furnished by said cars while traveling upon said roads; that, unless your orator pays the taxes so illegally imposed upon it, your orator believes and fears that the said defendant will, unless restrained therefrom by this court, sell said car so already levied on, and, if it does not bring enough to satisfy said tax, will levy upon and seize, in order to force from your orator said illegal tax, its sleeping-cars while they are in actual use and running attached to said express trains; that thereby the traveling public will be discommoded, the carriage of passengers interstate will be prevented, your orator and said railroad companies may become harassed by many suits by passengers for damages for not furnishing them the accommodations they contracted for, the credit and reputation of your orator for furnishing comfortable accommodations, which credit and reputation are of great value to it, and have been established by strict attention to business and at great expense and trouble for many years, will be broken up, and the good will of said business greatly impaired, and thereby your orator will suffer great and irreparable injury." The bills prayed for injunction and general relief. Answers and replications were filed, and some evidence taken, but nothing appears in the pleadings or proofs bearing upon the question of the standing of complainant in a court of equity, except as indicated by the averments of the bills above quoted. Upon hearing, the relief sought was decreed, and the taxes in question perpetually enjoined. 99 We have already decided in Shelton v. Platt, ante, 646, that purely injunction bills cannot be sustained to restrain the collection of taxes upon the sole ground of their unconstitutionality. The jurisdictional averments are more comprehensive in these causes than in that, but we are of opinion that they did not make out a case for equity interposition, for the reasons there given, and in view of the act of Tennessee of 1873, entitled "An act to facilitate the collection of revenues, approved March 21, 1873. Laws Tenn. 1873, c. 44, p. 71. So far as appeared, complainant could avert all the consequences which it deprecated as likely to ensue if the state officials were not restrained, by complying with the terms of that statute and availing itself of the remedy thereby afforded. Pick- | ard v. Car Co., 117 U. S. 34, 6 Sup. Ct. Rep. 635. There is, however, this marked distinction between Shelton v. Platt and these cases. In Shelton v. Platt the objection to the jurisdiction was asserted by motion, by plea, and by the answer. Here that objection is urged apparently for the first time in this court, but, inasmuch as the entire record fails to show complain. ant entitled to an injunction within the rule announced, the decrees must nevertheless be reversed. It is true that there was a prayer for general relief, but relief given under the general prayer must be agreeable to the case made by the bill, and in this instance the complainant sought a preventive remedy only. Ordinarily, where it is competent for the court to grant the relief sought, and it has jurisdiction of the subject-matter, the objection of the adequacy of the remedy at law should be taken at the earliest opportunity and before the defendant enters upon a full defense. Reynes v. Dumont, 130 U. S. 354, 9 Sup. Ct. Rep. 486; Kilbourn v. Sunderland, 130 U. S. 505, 9 Sup. Ct. Rep. 594; Brown v. Iron Co., 134 U. S. 530, 10 Sup. Ct. Rep. 604. But in Lewis v. Cocks, 23 Wall. 466, it was held that if the court, in looking at the proofs, found none of the matters which would make a proper case for equity, it would be the duty of the court to recognize the fact and give it effect, though not raised by the pleadings nor suggested by counsel. Parker v. Woolen Co., 2 Black, 545; Oelricks v. Spain, 15 Wall. 211; New York Guaranty, etc., Co. v. Memphis Water Co., 107 U. S. 205, 2 Sup. Ct. Rep. 279. The decrees are reversed, and the causes remanded for further proceedings in conformity with this opinion. In 1863 plaintiffs sued the collector of New York to recover $1,500 for excess of duties illegally exacted from them. In 1864 a consent verdict was entered that plaintiffs should recover the excess of duties, the amount to be adjusted by the clerk. In 1865 the matter was referred to the then collector for adjustment, and in 1884 an amendment was allowed by which plaintiffs claimed $20,000. Of this something over $14,000 was allowed in 1886, with interest from the date the duties were paid, the referee reporting that the delay was not fairly attributable to plaintiffs, for their right to recover depended upon defendant's liability, which was then being litigated in numerous other suits, in whose result their claim was to that extent involved, and that it was reasonable to postpone the suit in prospect of an adjustment which at times seemed feasible, but was constantly deferred by the vacillating action of the officers of the government. Held, that plaintiffs' lack of diligence was such that, as to the claim of $20,000, they are only entitled to interest from the time it was demanded by the amendment. Reversing 27 Fed. Rep. 286. In error to the circuit court of the United States for the southern district of New York. Asst. Atty. Gen. Maury, for plaintiffs in error. S. F. Phillips and Frederic D. McKenney, for defendants in error. FULLER, C. J. *This suit was brought by George F. W. Bartels and others in the New York supreme court, November 12, 1863, against Redfield, then late collector of the port of New York, to recover back the sum of $1,500, duties at the rate of 40 per cent., under Schedule B of the act of July 30, 1846, (9 St. 42,) that had been unlawfully assessed charges for inland transportation on a large number of importations of champagne wine invoiced from Rheims, and exported from the port of Havre, and on one-half of 1 per centum excess of commissions on the said importations. Service was made November 16, 1863, and notice of appearance given, and bill of par on *695 |