KIRBY V. LAKE SHORE .. If. S. B. 00.
the injury be doubtful, eventual, or contingent, equity will not enjoin. Rhodes v. Dunbar, 57 Pa. St. 274; Huckenstein's Appeal, 70 Pat St. 108. If the alleged injury is only problematical, according as other circumstances mayor may not arise, or if there is no pressing need for an injunction, the court will not grant it until a tort has actually been committed. Kerr, Injunc. 339. James Bakewell and ,J. S. Ferguson, contra. ACHEl:iON, D. J., (orally.) Demurrer sustained and bill dismissed.
Ex'r, etc., v.
R. Co. and others.· .
(Oircuit Oourt, S. D. NetD York.
PARTNERSrnP-ExECUTOR OF DECEASED PARTNER SUING IN EQUITY.
An executor of a deceased member of a partnership may maintain a suit in equity to discover the amount due from defendant to such partnership, and to recover such amount when it appears that the surviving partner has refused to join in the suit. 2.
STATUTE OF LBHTATIONs-DrscOVERY OF FRAUD.
Under section 382 of the Oode of Civil Procedure af New York, as construed
by the highest court of the state, the statute of limitations hegins to run from
the time an account is settled, and not from the time of the discovery of facts showing that such settlement was fraudulently made.
A foreign corporation cannot avail itself of the stattIte of limitations of this state.
Where the officers of a foreign corporation are not made parties in tln actioD against such corporation, there can be no d;scovery. 5.
SAME-No RELmF AGAINST SOME OF DEFENDANTS.
That no relief can be had against some of the defendants who were partiel to a fraud, will not avail the other defendants.
G. Norris, for complainant. J. E. Burrill, for defendants.
WALLAClE, C. J. The bill is filed by the executor of a. deceased member of the firm of Alexander & Co. for an accounting concerning moneys to be due to that firm from the principal defendants. The bill alleges that between June 10, 1870, and March 4, 1871,the defendants transported for the firm of Alexander & Co. 2,028 car-loads of cattle under a contract which entitled the firm to be allowed cer. tain sums by way of drawback on the monthly settlement of account between the parties, and that upon the monthly settlements which
*Affirmed. See 7 Sup. Ct. Rep. 480.
took place the defendants concealed and misrepresented the accounts which were justly due to the firm by way of "drawbacks," and which . were peculiarly within the knowledge of the defendants; and that by reason of the concealment and misrepresentation of the defendants the firm did not discover the truth until long after the transactions between the parties had been closed. The firm of Alexander & Co. dissolved, the copartnership indebtedness was liquidated. and the interests of the several partners in the assets were adjusted. Thereafter one of the members died and another member became a lunatic. The complainant, as executor of the deceased partner, requested the surviving partner to bring or join in a suit to recover the claim against the defendants, and also made a similar request to the conservator of the lunatic; and upon their refusal they were named as parties defendant. The bill prays for a discovery, as well as for a reopening of the accounts, and for a decree for the payment of the sums found due. Joint and several demurrers have been interposed by the principal defendants. 1. The objection that the complainant has no standing to maintain the suit is quite too technical to prevail in a court of equity, whose flexible rules regarding parties aim only to preserve the substantial rights of all who have a material interest in the controversy. Assuming that the right of action vested in the surviving partners originally, the complainant cannot be deprived, by their incapacity or refusal to act, of his right to recover his part of any sum that may be found to be due. · 2. The point raised, that the statute of limitations began to run against the right of action when the accounts between the parties were settled; instead of from the time when the true facts were discovered by the firm of Alexander & Co., seems to be fatal to the bill, except so far as it affects the foreign corporation defendant. Inasmuch as courts of equity, in all cases in which their jurisdiction is concurrent with courts of law, obey the general statutes of limitation, the question whether this action is barred by limitation depends upon the law. of this state as found in section 382 of the Code of Civil Procedure. That section is not luminous, and is certainly capable of the interpretation that actions on the ground of fraud, where the. substantive relief sought is a money judgment, must be brought within six years from the time the fraud was committed. Any other construction would authorize the pleader, by the form of action he might elect, to postpone and defeat the running of the bar. But the meaning of the section has been settled in Carr v. Thompson, 87 N. Y. 160; and the
interpretation there placed upon it by the highest court or the state must control the present case, it having been held that an action precisely like the present in principle and struoture is within the years' limitation, irrespective of the time of the' discovel'y of the facts. 3. The foreign corporation defendant cannot avail itself of the statute of limitations of this state. Olcott v. Tioga R. Co. 20 N. Y. 210; Boardman. v. Lake Shore tf: M. S. R. Co. 84 N. Y. 157. Nor does the bill disclose a case where there have been such gross laches in the assertion of the demand as to permit this defendant to invoke the dootrine of an equitable bar to the suit. The allegations of fraudulent oonoealment,and of misrepresentations, are very material, as where such circumstances exist courts of equity grant relief after a long lapse of time. Michael v. Girod, 4 How. 560. 4. Eliminating the defendants against whom the action cannot be maintained, there 'can be no discovery, because the officers of the foreign oorporation are not made parties and the corporation cannot be sworn. Story, Eq. PI. § 235. The demurrers 8S to discovery will, therefore, be sustained. 5. The circumstance that no relief can be had against some of the defendants who were parties to the alleged fraud, does not avail the other defendants. Their presence in the controversy is not indispensable. No one need be made a party against whom thEl're can be no decree, unless a final decree cannot be made without affecting the rights of the absent party. The oonclusions thus briefly expressed will sufficiently indioate to counsel which of the several demurrers are allowed, and which are overruled.
ALLEN and others.
(Oircuit Oourt, M. 1). Tennessee.
L"iTEllNAL REVENUE-SALE UNDER DISTRESS WARRANT VOID.
The provisions of sections 3184 and 3185 of the Revised Stiltutes must be strictly con8trued and literally!oll()'lJ)ed, and when land has been sold and bid in by the United States for taxes due from a firm of distillers in 1867, but not assessed until the interest and penalty exceeded the tax, and not enforced until 1876, and no formal notice and demand of payment could be proved, the United States acquires no, title, and a conveyance made before such sale to an innocent purchaser will not be set aside.