This is a contest between Burkett, plaintiff in an attachment suit, against Thornbury, and Scofield, interpleader therein, who claims, as assignee, the goods attached.
It was ruled in Goodwin v. Kerr, 80 Mo. 276, that section 2505, Revised Statutes, 1879, relating to sales of personal property, requiring delivery within a reasonable time, etc., and declaring such sales fraudulent and void, unless the provisions of that section were obeyed, did not apply to assignments. In the present instance, ■ counsel for Burkett stated, during the progress of the trial, that they did not rely upon any fraudulent intent, or fraud in fact, on the part of Scofield and Thornbury, and on this theory was the cause tried, i. e., that the assignment was a fraud in law. Having tried the cause on this theory, the trial court very properly refused a peremptory instruction to the jury to find in favor of the attaching creditor, Burkett, and very properly, of its own motion, gave an instruction to the jury to find for the interpleader. Therefore, judgment affirmed.