UNION S!.V. ASS'N.
deed, in the mouth of any of the original stockholders cognizant of the fact, and assenting theret<>, to question' the liability of the corporation for the entire debtbreated in favor of the Middletown Bank. No man can plead his own wrong'to defeat an h6nest debt. I shall therefote have to find against the claim of the complainant to priority of payment over the crossJc6mplainanL The last matter is that o£themanufactunng company's claim. Itias I have stated ,leasedits property to the association. The latter obtained a'large proportion6f the manufacturing company's- stock,·and had got· ten possession of a.' series of bonds issued by it, which, Ihowever, wards passedinto'tne of the Middletown Bank. Exactly what would; be ,between the manufaCturing company Rnd theassociationiidsim1>Gssible now to:tell. I think,however, as the parties are all before the court, the ttue way would be to have that cotint stailkd. Then, perha:ps, the receiver might be ditectM to sue the manUfacturing company, to sell the claim. of the association against the manufactliring ctinlpany, or in some; other way td1reaIize the amouilt that shall be dUe', be any such amount. ' ; [i'. I believe'this:Colvetsall:that I need how consider. A clooree vvillrbe entered, finding i·the;rightB'and; :equities of the parities 'in the malHiat heretofore indicated, and'referring theiedse to 8. master 'to examine ,and report-First, the amount due Clancey) ,Principal and interest i ,the value of ihe securities transferred by the superintendent, to 'him,ae! as all amounts realized' 8econd, t'he\amoul'ltdue'Wanllamaker, principaland interest; third, the amount due the cross-complainant; fourth, the account between the associRition and the manufacturing company i and, fifth, the'atnoill'ltofinoneynowon hand after the payment/ofall the intervening claimS. ulfinal decree will be entered on the corning in"of such report.
WILllON 'V. UNION SAV. ASS'N
March 80; 1887.)
" OF DIFFEBBNT ;
«(Jiic";'it (Jourt, E. D. MiB8ouri, E. D.
REMOVAL OF CkUSES- SEPARABLE
A suit by a citizen of. Missouri against a'panking corporation of that state. with which certain railroad aid bonds, sought to be recovered, were placed on joint deposit by two residents of Kansas, also is a suit, involvinga sepllor)l,ble, controversy betwlleIj. citizells of, states; and, as such, remonble the state. to the federal courts; Where the bank denies all interest in the bondsRve a lien for storage and counsel fees, where'one of the defel',ldallts depositlIlg, the bonds, .denies that his ha$,sp performed his contract of which the bonds were given him as to vest in any rightVl'hich could be assigned to the plaintiff, as set 'out In the bil};' and: the township, which appeared: voluntarily, llets up the ,same defenSe, that theb0.nds were iss,qed withollt and l\:1'e all.solutely VOId. ,On such pleadmgs the controversy IS between the plaintiff and',citiz.ens of Kimsas. ' ,,: ,
This is a'suit to recover possession of a number of Oswego township bonds. It. was originally brought against Union SavingE! Association, the Memphis, Carthage & Northwestern Railroad Company, C. Montague, and other persons alleged to claim an interest in said bonds, but to be unknown .to the plaintiff. Oswego township, Kansas, voluntarily entered its appearance as a defendant. The petition alleges that said bonds were duly issued by Oswego township to said railroad company; that one Edw",rd Burgess had undertaken to do a large amount of work in the construction of said company's road, and that, after he had in partperformeg .his contract, and s large sum was due him from said company,it delivered said bonds to him, and C. Montague, as trustee, in payment for the work done, and to be done, by said Burgess, upon condition that said Montague should relinquish his interest in the bonds to Burgess :upon the latteJ"s completing the work he had contracted to do; that said -Burgess and :Montague delivered said bonds to the Union Savings A.ssociationof St. -Louis, to hold until said Burgess completed his contrMt,ltnd with directions to deliver them to him upon its comfully; that plete performance; that" said Burgess performed his said his interest in said bonds to him, and that said Bl1l'gess has sold the!1l to the plaintiff, to whom said association refuses W delive.J:'them. ThE! other material facts are stated in the opinion .:" of theoourt. " M. <!t J.: I,l. Kinea,ly, for 'plaintiff. Hitchcock. ¥cu},.UNc Finkf./Jnburg, and J.ohn O'J)ay, foJ' defendants.
J. In this case a motion to remand has been made by the plaintiff.: The facts ll.r.e that plaintiff brought his. suitinthe state possession of $11,000 bonds of Oswego township. These bonds were held by the defendant the Union Savings Assooiation. It answered, disclaiming any title to the bonds; says that they were deposited by E. Burgess and C. Montague, to whom it gave a receipt, binding itself to deliver them to the joint order of the two. It further says it is ready, them to the party entitled, claiming, however, compensation for its services as trustee, and the services of counsel employed: to siefend this\cause. The Memphis, Carthage & Northwestern Railroad Company did not answer. Oswego township, the obligor" in these bonUs·, answered, pleading that the bonds were issued and were absolutely void. It also pleads that the llgreen1ent which 'tl1ebonds had been deposited by Burgess and Montague with the Savings Association had never been performed by Burplaintiff, claimed to have purchased them. gess, from'Whom Montague. pleads the last matter as a defense. Wilson is a citizen of thisstll.tej' ,Morrtague a,nd' Oswego' township are citizens of Kansas. N9w, upoll' ,tll,e:se pleadings, it is obvious that there is a separable controversy;" and· the paraiU(Hint controversy is between plaintiff, a citizen of Oswego township and C. Montague, citizens of Kan'Iil'j;h"is controversy the savings associlltiol;l There being such separable controversy between citizens of different states, the case was a removable one, and the motion to remand must be
UNITED STATES V.AMERlCAN BELL .TELEPHONE CO.
AMERICAN' BELL TELEPHONE
(Circuit Court, D. Maaaachu86tt8. April 4, 1887.)
EQUITY-PLEADING--:-DEHURRER." . .
A defendant in will not ordinarily be allowed to tile a to the whole bill, and, at the Same time several pleas. Even if the court hail the power, to al.low. u.Ch. a procedure, SUch. power will not be exercised, unless for good and ).'ell.sons, and to prevent injustice.
I . .
.George A.Jenks,SoI. Gen., George M. Stearns, U. S. Dist. Atty., John Goode,. Jeff Oh4ndler, and Wm. C. Strawbridge, for the United States. Ofw,uncl'!Jj Smith and JarneB J. Storrow, for defendants.
COL'f, J. The defendant moves for leave to.file demurrer to the whole bill, and at the same time several pleas. Equ\ty rule 32 providelJ that "the. defendant ;maY"J at any time before the taken for conor afterwards, with the leave of the court,demur or plead to the whole bill, or to .part of it, or he may. demur to part, plead to part, and answer as to the residue." According to the PfaCtlCe of English courts of chancery, ",a. defenq,ant maydemqrto one part of a bill, plead to another, answef to another, and as But all these defenses. must clearly refer to separate and distiJ;l<)t;parts of the. bill. For the defendap.tcannot plead to that part of the 1?i;I,l to which he has already demurred; neither can he anSWer to any part to which he .has either demurred or pleaded, the demurrer demanding the judgment of the court w!;lether he shall make any answer, and the plea whether he shall make any other apswerthan what is contained plea." Mitf. & T. Eq. Pl. 411. It was peld in Crescent City Co. v. Butchers' Co. ,J2 FeQ.. Rep. 225, that there was no rule which allows a defendant to demur to the whole bill, to the 'whole bill, and answer tp,the whole bill at the same time, that the of such pleading is that the plea is taken as waiving the demurrer, and the answeI,: lI:B waiving the plea. 1 Daniell, Ch. PI. 787, 788.. It ml:1Y be said, therefore, t4at to grant this motion would be contraryto the regular. and orderly course of pleading in equity causes. But it is by the defendant that it is within the discretion of the court to grant this motion; that, under the authority of Poultney v. City of La Fayette, 12 Pet. 473, every court ,of posses&es the power to mould its rules in relation to the time andmanner of answering, so as to prevent the rule from working inj1,1stice; and that jt is not only in the power of the court, bnt it is its duty. to exercise a sound discreHon upon the subject ,when the purposes of justice, require it; and further, that the rules pre,scribed,by the supreme 90urt were to deprive the courts of the ,United . of this, well-known and: necessary power. Assumjng the power of t4e court togranUbe motion now asked for,.(upon which I.;tl\lc,not elltirely. free. from doubt,) I am clear it. should not'be gQod and and to prevent injustice.