HYMAN 'V. WHEELER.
taken by him, and as to be chief supervisor he had to be a ,commissioner, ex necessitate he could administer an oath. Items allowed. No. 10. Preparing and forwarding instructions to 687 supervisors. Under section 2026 he must prepare them. As commissioner for preparing papers he is allowed 15 cents per folio. For each copy out of hil:l office, under section 828, he, is entitled as commissioner to 10 cents per folio. This much is allowed. No. 11. No provision is made for the ordinary stationery used by the chief supervisor, or by any commissioner. He is required, however, to furnish blanks, etc. For these ex equo et bono he must be paid. For pens, ink, note paper, etc., he cannot be paid. If the amount allowed by the. department on this item-$35.25-covers these blanks, etc., the rest is disallowed. If not, so much as will cover them is allowed. No. 12. Payment to H.P. Locke for 35 days, for services as aSE'istant and messenger. No authority can be found for this, either in the law for cbiefsupervisor or for commissioners. It has been argued that the cir· cumstances of the destruction of the room of the chief supervisor, occupied by him as commissioner,by the recent earthquake, and the health of the chief supervisor, made the services of a clerk and messenger necessary, and that this charge comes within the implied contract to furnish eYerything necessary for the discharge of the duties of the office. I apprehend that at the farthest, those things are implied which necessarily were in contemplation of both parties ,at the time of the appointment. When one is appointed to discharge an office, he is expected to do its duties himself; and if his health fail, and he must employ assistance, be must pay for such assistance himself. There waa 110 implied contract to pay for a messenger, and no authority for employing one. The item is, disallowed. Let a decree be taken in accordance with this opinion.
HYMAN tl. WHEELER
(Oircu" OQ'Urt, D. OoloTado. January 13,1888.)
EQUITY-:PARTmS .DEFENDANT-DEMURRER-UNITY o"INTEREST.
A bill in equity showing that complainant owned a mine, the mIneral veIn of which had its apex Within complainant's boundaries, but in descending deflected and passed out of his side lines; that defendants. of whom there were a number, were threateJ;ling litigation on claimsJ\) the vein in various forms; that defendants' claims, though differing between'themselves, wereo.ll subordinate to plaintiff's claim:; and seeking equitablerelief.-is not demurrable as showing no unity of interest in defendants, and no equityiD complainant.
In Equity. On demurrer to bill. Bill in ,. equity by, H.rman, complainant, against Wheeler and others, , .defendants.
O. J. Hug1iea,Jr·. ,Jor
·.i ' .
J: This is a bill in . equity to which a demurrer or several' demurrers have been filed. The cornplainant,alleges .briefly that he is· the.: owner ofthe Durant mine,and the vein which has its apex within its surface boundaries; that such vein, descending, deflects so as to pass. out fr:onithe side lines of the Durant; .and that he hils opened that vein of 800 feet, passing outside of and, followed it for, I believe, the lines of the Durant location, andthnt he isiri 'possession of that vein thus opened; thatthese of whom there are quite.R number, repl'esenting:niIie different interesfs,baving'claims oflocation on the surface adjacent: or:near to the Durant, and above this vein which· he has opened, and which he claims to be in possession of, are threatening litigation in various. forms; also tls'tosomeof the parties that they threaten to worry out the plaintiff'by excessive and continued litigation, so thatp,ractically the value ·of·his property will be:lost to him; and alleges that as to all these various defendants their claims,<diffetent though they may; be between (themselves, are all SUbordinate to his single title, and, 'his rights, and are assertions of claims which casta cloud upon his, iposseBsion' and title, and prevent him from the peaceable enjoymentofjthefruits of-ownershipjandsooks', as a relief, that they be enjoined and restrained from instituting these various suits in different c0urts,and be·callea upon to come into this case,andsetuptheirtitles, and have them all asserted and determined in one litigation. The 'de-presented, or. the principal ones, are'multifarieusness in the bill, and a want Qf. ,:i . It is claimed by counsel that there is no unity of interest on the part of the various dQfendantsj that bec!:tu'seone man has a chtim'to one piece of ground, and from that asserts title to a portion of this vein, his conand distinct from the troversy with the plaintiff is controversy with another man, who has another piece of ground, and upon his claim to that ground asserts a right to perhaps a distinct portion of this vein. Very Inlj;ny autbQritiea were presented and discussed. I think it impossible to harmonize them all, and therefore do 110t stop to comment upon them. The Case of,Railroad 00. vJ\Dyer, 1 Sawy. 641, contains what to my mind is very wholesome and salutary in, respect to. these. matters. . It .down the proposition that where tlieie is a single title to a and that (itIe rests one f'tate of facts, one grant; and there are many persons who, with in. ferior titles. or alth04gh. their claims :wayspringifroro differentsources,r-a court of equity has power, in. order to ,give to the holder of! this the fullenjoynlent of hIS property, to summon all such parties, iI,lto a single suit, and in that .by decree establish the pJaintiff's title,. an'drestrain all the defendants from f0;rther litigatiOri'tl1' interference. i lUs;theonly way oftit11es a man can be protected in the beneficial enjoyment of his property; If each ind.ividual claimant-as, in thl:Welise, s,' numbefof' squatters alOng
RYMAN V. WHEELER.
the line of a,railroad-were.pel'mitted to maintain his independent ao. ,tl).e railroad 'the cost and the time and the worry of the litigation would se,riously impair the value of the grant totha company"a,nd so, according to the statements that are made here, with a knowledge of the expensiveness of this mining litigation and the length to which it may be continued, it may well be, as the complainant asserts, that if every claimant is permitted to carryon his separate action (If ejectment, 'with the two and possibly three trials which the law gives 'therein,dhe of the property" which the government has granted him, will be practically destroyed. I think, therefore, that following that decision, it cannot be said that the fact that these defendants have various interests prevents a court of equity from calling them in. Neither can it be said that there is no equity in the bill. Equity discountenances a multiplicity\qfsuits,__thatiso,ne of the grounds of its jurisdiction, and H aims, by restraining a multiplicity of suits, to give to the owner oithe property thj:l beneficial enjoyment of it, and to enable him to get the benefit of its ownership, rather than waste it in many and diverse suits. A great many'other matters wereisuggested whichseeItl to Up pertinently for in<tuirywhenaoswers have been' filed,'tind ·. ,It is said ths,t. to uphold thejurisdio. tion courtpf equity in this, case would be 'to deprive these claim.'" ants of the, iliry trial guara;ntiedtQ them by th El ,constitution. Itmay he that whef} testimony is pregj:lAted there will, appear such a doubtful question oHacts that the chancellor will say this ought to go to tli'jurry,:lihq declirle ,to entertain further jlltfsdictibO.,' As the bill n6w stands q'pon. these averments, the complainant has an absolute undoubted title.; ,a'perfect title. andisin possession. ,It may be,as bycouDsel, that his possession is 110t actual,:-:that he does not havell.riy real p6s«eS'sion of this vein 1n its extension:. beyond his side lines, all those facts will come out in an answer. It may be that this vein, as suggested by' one counsel, instead of being and into half a dozen aheets,. so that it isirppossible or difficult to say as to anyone of those sheets whether it is a continuation original or ,of some ot,her .vein having in ,All those, facts may be developed by answer and .JIroof, JhltY }VeIl be that ,in one ,case or there wiU be, c;lisclosed such a doubtful question of fact that a chancellor may properly say that here is a question which he will not, determine, and it must be now. time relegated to a jury; but none of these enough to consider those questions when the facts present them. I think, taking the bill the, coqtt· ,as "a", court of ,to take C<?gniplnce of this bill, /tnd to ' call uponthe-def'endants to answer. It. il3 suggestElflby one of the cQ,unsel that a, ground of,demurrer , isprest/uted<inregard to one oithe basesofjurisdiction in this court. JUrisqictionisavEfrred ground of and there tempt,aIBoi: ito, diseloseafeden,rl question; ,and' it is said that the llllegatiaris oftneoiIl'do not disclose 'a federal questi60, and tbereforethe dtr
murrer should be sustained, as. a special demurrerto that part of the bilL. The demurrers are all to the bill as awhole;'Ilot 'difucted in terms to' any part,of the bill, although there is among thegroands of demurrer set out specially the fact that this federal question is not so stated as to disclose the existence of a: federal question. Hence there would be no practical advantage in considering that matter separately. The difference .of Citizenship is stated fully and satisfactorily. In all equity cases we ought togo to the substance of things as far as possible. The demurrer will be overruled, and leave given to tHe answers.
(Oircuit Oowrt, E. D. New York. January 4, 1888.)
1.' ,EQUITY-+PtEADING-'MULTIFARIOUSNESS. . 1?Y an assignee in l;!ap!truptcy again/lt several defendants to 8!!t aSide various separate conveyances of alleged to have been made In . fraud' of 'creditors, is not :dCll111rrable' for multifariousness. 9. FRAUDULENT CONVEYANOEs":':''1'RAN81l'ER OF LEASE-!NSOLVENcy--RENEWAL OF
The transfer of a lease in ,fraud of creqitortl by an insolvent before going into bankruptcy. is the creationdf' a trust 'in favor of tlie creditors, and may be reached by the assigneb in bankruptcy in the hands of any subsequent transfere'e,s,wlth, knowledge of the, facts, thoughthe.y: qe holding under a new lease, executed after the expiration of the bankrupt 8 term.
LEASE. " .:'
, ' .
On demurrer, setting up the statute of limitations, the court will not infer from the fact that the alleged fraud occurred more th,an two years prior to the commencement of, the suit that the complainant discovered the facts consti· tuting,the fraud before such period. 1 '
4. EQUITy-LACHES. ' , A demurrer to a bill on the ground of laches will not be sustained, unless the bill QPon its face, witheut to inferen,e<es, makes a clear. case of unreasonable delay by complainaIit after his discovery of the fraud.-
In Equity. On demurrer to bill to set aside ·. ,Action by Jones, assignee, against Slauson and others, defendants, to Belt asideseveral'60nveyances of real estate alleged' to have been made in fraud of creditorS. . BenjaminG. Hitching8, fur complainant. Jame8 R. Angel, for defendaritS.
"LACOMBE, In August, the defendant, David M. Smith was declared a bankrupt, and the plaintiff was afterwards appointed his as-
lAs to'*hen the staiute commences to run against an action for fraud, see Board 00. IV. Vincent, (Mich.) 88 N. W. Rep, 44, and note; National Bank Y. Perry,(Mass.) 11 N..E. 81J and note; S¥nmons v. Baynard, BOFed. Rep. 532; Murphy v. Reedy, (MISS.) 2 Rep. 167; Piper v. Hoardt (N. Y.) 18 N, E. Rep. 682. SAs to what Is siIch lapse as Willl'reciude equitable relief" and what are cir,cumstances s\lfll,cieJ1,t to rebut the imputation of laches, see Hottert v. Miller, (Ky.) 6 S. W. Rep; 4.47, ahdnote. " " .,,,