LEW ARNE V. MEXICAN INTERNATIONAL IMP. CO.
is brought here in exactly the same condition as to jurisdiction.over parties it had in the state caurt,-no better, no worse. As the j-Jrisdiction was defective in the state court, it was defective when the cause came here by removal. As the defect could. have been cured under article 93, Code of Practice, in the state court, by the defendants pleading to the merits, it is probable that in like manner could our jurisdiction have been perfected. The fact that the city attorney entered a general appearance in this court for the city of New Orleans, and the fact that there was a decree pro corifesso entered against the city, are relied upon as being equivalent to a plea to the merits, and as sufficient to perfect the jurisdiction of the court under said article 93. It must be remembered that the appearance was entered in connection with the proceedings looking to the appointment of a receiver, which for some reason seems :to have brought the city into court, although the city. waS not actually a party to the rule, (see application for rehearing hereinbefore referi-eqto,) and to that extent was qualified; but at best, it had no other effect than to cure the defective citation, which was defective in that was not addressed to the city of New Orleans., ','rhe decree. JYT'O confesso was entered becaqse the plaintiff did not plead to the merits. Under article 93 of the Code of Practice thE! defectivec jurisdiction could be cured by pleading to the merits, and in not declining the jurisdiction. In this connection it may be noticed that in every pleading filed ill this case by the city the Jurisdiction of the court has not only elined, but has been protested against. We, are satisfied ,that upon the foregoing facts the plea to the jurisdiction should be maintained. ,In the succession of the city officers, resulting from the election, the appearance was entered, and the answer upon the merits, in connection with a separate plea to the jurisdiction, was filed. We do notllttempt to say that the objection to jurisdiction could or could not be waived. The clearly always intended to insist, and has always insisted, ·defendant want of it. W think it but just the defendant have leave upon withdraw t:he appearance herein entere(l, :ilJ)dthat portion of the a.nswer which relates to the merits. Such leave is accordingly gl'anted. Upon this being done, the plea to the jurisdiction will be maintained, .and the bill dismissed for want ofjurisdiction, so far as the city of New .orleans is concerned.
M:l!:XICAN INTERNATIONAL IMP.
Co. et al.
May 9, 1889.j
:EQt1ITY-PLEADING--MULTIFARIOUSNESS-RULE' 94,. ," , " ',' A. bill brought by a stocltholder againstthe cQrporationand othOl'S, charging (1) an illegal issue of preferred a brelL<:b of trust on the part of " in ,fraudulelltly issuing fuB-paid stock for a " DQminalconslderatJOn; and (3) an Illegal purcha/lc of a certaIn ...,. and equity, ,,"u1e94. ,charged,are separatl( am!d1st}nct·· or andcollrei$ting of a.se_los of the s!'me parties. ,,' , .: , : " f <
, FEDERAJ' InEquity. "On demurrer ·tobill.' H; ·L. Lazar'U8 and JiR.Beckwith, for complaimint. 'W. ,W. Howe, a. F. Buck, and' FarrOII' &- Kruttschnit, for Before PARDEE and BILLINGS, JJ :
PER CURIAM. The matters and things and the reliet prayed for set forth in the bill and amended bill in this case cover three separate matters Of equity cognizance, not 'necessarily blended together, nor arising out of one transaction, to-wit, the alleged illegal issue of preferred stockj the alleged breach' of trust on the part of the original board of directors in fraudulently issuing full-paid, stock for a nominal consideration; lind the alleged illegal pur\!hase of the Biranda lottery grant. The first of these is a matter which may well be tested between dissenting stockholders and the corporation, founded on rights which may be asserted by the stockholders as against the corporation, and to wHich only the corporation is a. neceseary The second is founded on rights which may properly be asserted by the corporation against the delinquent trustees, and to which such trustees are necessary parties. If Buit is brought thereon by a stockholder in the federal court,equity rule No. 94 expressly and in terms applies. The third is also founded upon a right which may be properly asserted by the corporation; and,if action is brought therefor by a stockholder, equity rule 94 applies. If,as counsel for complainant contends, the whole action is one arising out of a series of transactions by the same parties, and is solely for an accounting as against'delinquent trustees, then the .conclusion is inevitable that the case is one of "a bill brought hy one or more stockholders in a corporation against the corporation' and other parties, founded on rights which maybe, properly asserted by the corporation," and is directly within the terms of said equity rule 94. In our' opinion, the bill is multifarious, and in every view6f the case which has been presenfedto us we are of the opinion that the demurrers are well taken, and should be sustained. A decree to that effect and- dismissing the bill Will be entered.
FAIRBANKS'll. AMORKEAG NAT. BANK et ale
,(Oircuit Oourt, D. NeUJ Hamp8hire. April 24,1889"
BAmmuPTcv-COMPOSITION-FRAUP-LIMITATION OF, AC'l'IQNS.
Rev. St. § 5057, provld!s that a Buit between an assignee In bankruptcy and a person claiming an adverse interest concerning the bankrupt's property ill barred in two years after the cause, of action accrued. Act June 22. 1874, provides that ,the time during which' composition belWeeJ;l'tbe' bankrupt and creditors, shall be in forc,e shall be excluded in the computation; A bankrupt a fraudulent:alrl'eement to procure the creditors. WhICh was procured and confirmed by 'lhe coUrt, and, irJpursuthe, property' tQ ance thereof an order to the' assignee to was procured, and the propei'tywas conveyed accordingly. The comprot,nise was afterwards set aside. Held that, where 'less than two years remained