Henry Billings Brown

“ While undoubtedly, under the system of code pleading, a technical variance between the allegations and the proof is not deemed material unless the adverse party is prejudiced thereby, still, where a cause of action or defense is not proven, not merely in some particular, but in its entire scope and meaning, it is treated by the authorities of those states, not as a case of variance merely, but as an entire failure of proof. ”

“ The court was, however, of opinion that if it could assume that the plaintiff paid the money for Kinney, or whoever was the owner of the cattle at the time, to secure the release of them, with the view of acquiring property in them, it might maintain an action for the money paid for that purpose; that the fact that the plaintiff was a stranger to the proceeding to collect the taxes was not material; and that, if the taxes were void, a stranger paying the amount for the use of the person against whom it was levied would be able to recover the money. ”

“ If, upon the other hand, the cattle had become the bona fide property of a bona fide corporation, it is possible that such corporation might sustain an action for money paid for the release of its property, even though it were organized for the purpose of carrying the litigation into the federal courts. ”