CAMPBELL V. CITY OF NEW YORK.
(Oireuit OOWf't, 8. IJ.
Where the complainant in an original bill has, since bringing the suit, parted with his whole interest in the subject-matter·. and those for whom he was trustee have transferred their ,whole interest in the subject-matter to A. and the title to any sum of money which may be recovered in the suit has by these transfers become vested in A., the remedy of A. is by an original bill in the nature of a supplemental bill, and not by a supplemental bill.
In Equity. On demurrer to supplemental bill. For hearing on pleas to supplemental bill, see 33 Fed. Rep. 795. James B. Lockwood, (MarcusP. Norton, of counsel,) for complainant. Henry D. Hadlock, for Philbrook. George and Sherman M. Rogers, for Green and Murphy. W ALt.AOE, J. The theory upon which this supplemental bill proceeds is that Campbell, the complainant in the original bill, since bringing the Buit, has parted with his whole interest in the subject-matter, and that those for whom Campbell was trufltee have transferred their whole inter· est in the subject-matter to Philbrook,or to Philbrook and Knibbs, and that the title to any sum of money which may be recovered in the suit has by these transfers become vested in Philbrook; 'orin Philbrook and Knibbs. Upon such a state of facts the remedy of Philbrook is by an original bill in the nature of a supplemental bill, and not by a supplemental bill. This was distinctly sta.ted in the opinion announced upon the hearing of the motion in which Philbrook applied for leave to be made a co-complainant. Although the distinction between supplemental bills and original bills seems to rest upon purely artificial reasons, it is well recognized, and is attended in practice with consequences which af· feet the substantial rights of parties. If the cestuis que tTU8t had not transferred all their interest in the llubject-matter, and there had been Bimplya change of trustees by operation at law, or if there had been tmly a partial alienation of the title of Campbell, a supplemental bill might:lie. As it is, the demurrer must be sustained. Mitf. Eq. PI. 65,98; 1 Barb. Oh. Pro 66,84; Story, Eq. PI. 349; Tappan v.Smith, 5 BiB. 73. The third ground of objection assigned in the demurrer suffi. ciently raises the point.
HENRY V. TRAVELERS' INS. CO.
HENRY ,'11. TRAVELERS'
n. OolO'l'ado. 'May 16,1888.)
RECORDS Oll' ColWORATION NO'! A
BOOKS AND PAPERS -
, The will a motton to compel the opening of the records of a corporation not a party to the suit, but whose records it is claimed would disclose something of importance to the litigation.
, ·Wlter:eA. has jUdgment for costs against B.· and B. has a like judgment in another case against A., one may be equitably setoff against the other pro tanw; particularly where one of the parties is insolV'ent.
SET-OFF AND COUl'lTER-CLAIM-JUDGMENTS FOR COSTS.
On motions. for complainant. ' and PaUer80n &: Thotna8, for defendant.
J. In Henry v. Insurance 00. are two or three motions 'which were, partially at least, subqlitted to me during the vacation. One is 8 XPClH()p, to 'compel the opening of certain ,records of a corporation not ,8 suit, but whose records it is claimed would disclose some, thing of jmp()rtan,ce to the, litigation. I overruled that motion tElfi1p<?rarily du-ring vacation, and after hearing fuller statements of counsel; the , other da,y I I ,am strengthened in the opinion that 1 then had, not merely by th8:ttl1is is the record of an a but also by the fact of the manner in which this 'title , party has from one to another, and has finally cOlpe to be in thecorporation,' That motion will remain overruled as heretofore. In reference to the costs,there being an interlocutory decree in favor of complainant ,for costs' up to date, the ,drrot ,of the decree prepared byeach counsel containingJhe same provisjpn,I accepted that prepared bythe complain'ant, and afterniaking sorrie'changes, signed it. , Itw.ouldbEl an extretne ,case,that would callupon the court to change a decree thus prepared and ,entered, and no reason why it should be changed. The complain,ant is, to the payment of his costs. The second motion in referthose costs is that, there be ordered an equitable ,set-off of costs adjudged in another case between the sanle partIes. The matter'of set-off depends UP()Il purelyequitableplinciples, and I do not see any reason why it is not equitable that there should be such a set-off. , If A. has a 'judgment in. his against and R has ajudgment ih his favor
not, the equitable reasons for the set-off are only 'stronger: motion, therefore, in respect to that set-off pro tanto is sustained. The third motion is in reference to some garnishee proceedings. I do not think a judgment for costs can be subjected to such garnishee proceedings, and that motion will be overruled.