UNITED STATES 'V. M'LAUGHLIN.
dence, but intending to rely upon the testimony of witnesses to prove their case. It is very doubtful whether a pure bill of discovery in an equity suit would lie at the present day. It may be that a discovery might be asked for in a bill for relief; but it is probable that no prudent counsel, understandinR what must be the effect, would at this day file a pure bili of discovery, or call for a discovery in a bill for relief, and thus unnecessarily give the defendant an advantage which he would not otherwise have under our present practice, which enables a complainant to place the defendant upon the stand and examine him as a witness, and thereby obtain his testimony much more judiciously, -testimony of a character less prejudicial to his client's interests than it would be were the testimony to come in the form of a sworn answer, strained through the legal cullender of 'his counsel, and by him shaped and shaded in his office at his leisure. Very wisely, I think, the bill in the present case has been made a bill for relief, not a bill of discovery. See Slessinger v. Buckingham, 8 Sawy. 409; S. C. 17 Fed. Rep. 454. In E.rc parte Boyd, 105 U. S. 657, the supreme court intimates that at this day bills of discovery are not only useless, but obsolete, and very strongly intimates a conformation of the idea which this court has endeavored to impress upon the bar here; that is to say, that the spending of time upon exceptions to answers is useless, and such exceptions are usually very much to the disadvantage of the party resorting to them. A defendant is often pressed t6 a direct denial which constitutes proof of his case in his own favor, which must be overthrown by the testimony of two witnesses, or equi valent proof on the part of the complainant. As I have intimated, this bill contains no allegation looking to a discovery. It merely undertakes to allege the grounds of suit and to develop the issues, and manifestly was not intended to obtain evidence to prove the issues. The first exception is in general language that an allegation of complainant's bill of complaint indicated "is not sufficiently or at all answered, dl,nied, or admitted in or by said answer." There is in the bill no demand for an answer, general or specific, upon which that exception can rest. The bill is not framed for the purpose of procuring evidence, but is evidently for relief merely. I shall therefore overrule th3,t exception, and leave the complainant to make his proof in relation to the facts referred to by calling the parties as wit. nesses, if he so desires, or by otber documentary evidence, and to obtain evidence by proceeding in the ordinary course. One of the defendants is 8, corporation, to an lI,nswer of which, exceptions for insufficiency, as we have seen, do not lie The other exceptions, although some of them refer to matters in the answer which are alleged to be impertiuent, or refer to particulars in which the answer is alleged to be ambiguous or insufficient, are all really exceptions for insufficiency. There is no such term as "am-
biguous" known in equity practice with relation to a pleading, except in so far as it may be embraced in the term "insufficient." An an· swer may be insufficient because it is ambiguous. Another averment contained in these exceptions is that the answer is, with reference to certain portions of the bill, impertinent. In the fourth exception a certain portion of the auswer is alleged to be impertinent, indefinite, and ambiguous. The only point to that exception must be that the allegations referred to are impertinent. The .rule as to impertinence is well stated by Justice STORY in Story, Eq. Pl. § 267, as follows:
"However, in cases of mere impertinence the court will not, because there are here and there a few unnerel>sary words, treat them as impertinent: for the rule is designed to prevent oppression, and is not to be so construed as to becume itself oppressive. Nor will the court, in cases of alleged impertinence, order the matter alleged to be impertinent to be struck out, unless in cases where the impertinence is very fully and clearly made out; for if it is erroneonsly struck out, the error is irremediable; but if it is not struck out, the court may set the matter right in point of costs."
In a note, attention is called to the language of Mr. Vice-Chancel. lor BRUCE in the case of Davi8 v. CripP8, 2 Younge & C. (New Reports,) 443 :
"The court, in cases of impertinence, ought, before expunging the matter alleged to be impertinent, to be especially clear that it is such as ought to be struck out of the record, for this reason: that the error on one side is irre· mediable, on the other, not. If the court strikes it out of therecord, it is gone, and the party may then have no opportunity of placing it there again; whereas, if it is left OIl the record, and is prolix or oppressive, the court, at the hearing of the cause, has power to set the matter right in point of costs. That consideration has been alluded to by Lord ELDON in Parker v. FairUe, [1 'furn. &R. 362,J and other cases. It ought to be clear to demonstration that the matter complained of is impertinent before that which, if wrong, is irremediable, is done." See, also, Attorney General v. Rickards, 6 Deav. 444, and Tucker v. Cheshire R. Co. 1 Fost.. (N. II.) 3S.
In my judgment, none of the matter pointed out by the exceptions filed in this case is so clearly impertinent as to justify the court in striking it out. To go into the question of striking it out might require me to pass upon the merits of the case; whereas, unless those portion Ii' (If the answer referred to in the exceptions are clearly im. pertinent, they ought not to be stricken out ,until the final hearing, when the whole case is before the court, and they can be dealt with as justice and the rights of the parties may demand. Whatever may be the decision in this suit, the case will undoubtedly go to the supreme court of the United States on appeal; and if I should be of opinion that these portions of the answer are impertinent and strike them out, the supremi court might be of a different opinion, and yet, if tltricken out, the supreme court would have no basis upon which to finally determine the question and render a proper decree; and it might be necessary to affirm an erroneous decision, because a part of the defendant's case is not in the record.
UNITED STATES '/I. M'LAUGHLIN.
The portions of the answer which it is most earnestly insisted ara impertinent relate to the different steps taken in definitely fixing the location of the railroad. I think the setting out of those steps in the answer is eminently proper. It is assumed that the supreme court, by its decision in the Dunmeyer Case, 5 Sup. Ct. Rep. 566, has established the law in this regard. Undoubtedly it has settled the law, so far as this court is concerned. But counsel have a right to ask the suprema. court to modify or amend its decision in that case, or to consider its application to a new state of facts. They have a right to submit the question again to that tribunal; and if these portions of the answer be stricken out, there will be no basis upon which to bring these questions again before the court. Besides, in the case referred to, only the case there presented was decided, and the decision is authoritative only to the extent called for in that case. In that decision it is held that the line of the road becomes fixed when it is definitely fixed by the company, and a map of the location filed in the office of the secretary of the interior. The time of the filing of such' map was sufficient for the purposes of that case. There might be found to be a difference in this case. That is to say, the filing of the map might be the evidence, and the only evidence, that the secretary of the interior would act upon in issuing a patent. He would require evidence as to the time when the line of the road was definitely fixed, in order to justify him in exercising his functions of issuing a patent. That was the question before the court in the Dunmeyer Case, and it is a very different question from the question whether or not some other person has the prior right. The statute in no provision requires that a map of a definite location shall be filed. It is only a map of the general location that the statute requires to be filed in the office of the secretary of the interior; and upon· the filing of that map all lands lying within 15 miles on each side of the road are reserved from sale, which is a distance of 10 miles wider than the extent of the lands granted, giving an opportunity for the line of the road to swing at least five miles from the line, as shown in the map of general location, and still have 10 miles within which to fix the limits of the grant. On filing the map of general location, under the statute, the lands are withdrawn from pre-emption, or from opportunities on the part of anyone else to acquire rights in them, and that condition of things remains until the road is definitely located and built. When it becomes definitely located in fact,-and it is certainly, really, definitely located when the road is constructed and finished,-the railroad company has performed all its duties, and its right to the land has become perfected, I should suppose; at least, counsel may well so argue, and they are entitled to have the question determined by the supreme court, as well as by this court. Even if the secretary of the interior can properly refuse to act upon any other evidence than the filing of the map definitely fixing the location, yet this is but a rule ado»ted
for administering the affairs of his office, and the railroad company's title might still well be fixed and indefeasible before the filing of a. map of the definite location; and that map might only furnish final and conclusive evidence upon which the patent should be issued. The right to the land may be perfect before the patent issues, or would be issued; the patent being but the final record, and indisputable evidence of the title. The allegations of the answer, then, as to the time when the location was made, as well as when the plats of the different portions of the location were. filed, can by no means, in my judgment, be stricken out as impertinent. I think those are matters which should be left in the answer and open to proof, for consideration by this court, and by the supreme court on appeal. Even if I should deem such matter impertinent, the supreme court might take a different view, and the parties here have the right to have that question passed upon on appeal. These observations especially refer to the exception which was most elaborately argued and most strongly insisted upon; and the other exceptions are of similar character. It may be that some few words which are excepted to are impertinent, but they are not so clearly so, or of such importan.ce, as to justify me in sustaining the exceptions. The exceptions are therefore overruled, with leave granted to complainant to file a replication within five days.
and others v.
(Oircuit Oourt, D. New Jersey.
An interpleader is properly applied for where two or more persons severally claim the same thing under difIerent title, or in separate interests, from another person, who, not claiming any title or interest therein himself, and not knowing- to which of the claimants he ought of right to render the debt, is either molested by nn action brought against him, or fears that he may suffer injury from the conflicting claims of the parties.
SAME-INJUNc'l'TON 'l'0 8TAY Pl\oCl£EDlKGS IN STATE COURT.
Section 720, Hev. St., expressly prohibits a court of the United States from issuing the writ of injunction to stay proeeedingR in any court of a state, except where the injunction may Le authorized by any law relating to prvceedings in bankrnptcy.
E. L. Price, for complainants. UTilliamson d: McOarter, for defendants. NIXON, J. The firm of Halsted, Haines & Co., carrying on busi-
ness in the city of New York, and all the members of which are residents of the state of New York, became embarrassed in their