"If complainants In the circuit court were proved to be the regularly appointed committee Qf,a voluntary society of Lutherans, in actual possession of the premises,and acting, by their direction, to prevent a disturbance of that possession" ... ... .... there does not appear to be a serious objection to their right to maintain ,a suit for a perpetual injunction against the heirs of the donor, who sought to regain the property, and to disturb their sion." 2. The contract which is the basis of this suit is a contract with continuing covenants; and a suit to enforce the covenants, or to dissolve the contractror breach thereof, cannot be stale until after the expiration ,()f the term oOha contract. The failure ofthe railroad company to comply with the contract to maintain crossings and proper drainage during the first years of the contract may not have affected the complainant so , injuriously but what it preferred submission rather than litigation. This would 110t cut off its right to have the contract enforced thereafter, when the damages, became more onerous. The doctrine of laches, which is sought to be' applied in this case, may cut some .figure if the contract shall be annulled for breach thereof, and the court undertakes to assess the damagea:resulting from such breach; and it may then well be that claims :for damages 'ar'ising years before bringing the suit may be declared stale. -,On the face of the bill, the complainant makes a case for breadh of contract within the past year. The demhrrer will be overruled.
TOWN OF STRAWBERRY HILL t1. CHIOAGO,
.' .(Circuit Court, N.D. Iowa, E. D. Maroh 6, 1soo.)
A bill in.equity showing,that a railroad liable over for against a tqwn had 'Eltt1ed with ,the injUred person,and that thll juqgD)ent, had been assigned to a third person, .alid asking to have it canceled if ,found to have been assigned for the benefit of the company, otherwise for judgment for damages against. the railroad,18 not demurraole on the ground that the relief Biked will in one event be purely legal, .as the relief granted can only be determinadon final hearing.
In Equity. On demurrer. to part of bill· . Re:mley &: ErlJii.nbrack and Hende:rson, Hurd, Daniela &:K'wsel, for complainant. . . A. L. Bartholomew and Wm. J. Knight, for defendants.
The bill in this cause shows that one Margaret Fowler received injuries· from being thrown overa. -bridge within the corporate limits oithe tl}wn oiStrawberry Hill; that she and her husband brought .actions against th'e town to recover damage$on the ground, that the bridge was unsafe; that Mrs. Fowler recovered a judgment against the town for 81,842 and costs; that thereupon Mrs. Fowler and her husband brought suit againsttheChiQago, Milwaukee & St. Paul Railway Company fOl the same injuriesQn. the ground that the bridge inqueation was built by
TOWN OF STRAW.BERRY HILL 1'. CHICAGO,· M. & ST. P. BY. 00.
the railway company over its track, and the company wal!l under obligation to construct it safely, and keep. it in good repair; that the suits against the railway company were settled and dismissed, and the judgment in favor of Mrs. Fowler against the town of Strawberry Hill was assigned to one John Johnston; that in fact the railway company made a full settlement with .Mrs. Fowler and her husband for the damages tained; that, as between the town and the railway company, the latter was bound to erect the bridge, and keep it in safe condition; that, for the damages collectible ·from the town for the injuries caused to Mrs. Fowler, the town would have the right to look to the railway company for reimbursement; that the settlement of the damages by the railway company in fact inures to the benefit of the town, and. that the judgment in favor of Mrs. Fowler should be canceled and discharged upon the·record; that the railway procured the assignment of the judgment to one John Johnston, who is a man of straw, or in fact holds the judgment in the. interest of, and. for the benefit of, the railway company. Wherefore complainant prays that the judgment against the town be canceled; and, further, that, incase it be found that John Johnston is in fact the owner of the judgment in question, a judgment be entered in favor of the town against the railway company for the damages caused to the town. The demurrer seeks to present the question that the town cannot claim damages against the railway unless it be shown that the town has in fact paid the judgment against it; and, further, that, if the town has a claim for damages, its remedy at law iacomplete, and a court of equity is without jurisdiction. The bill does not contain two causes of action, nor does it set forth the Eamecause in two forms,-the one looking to equitable, the other to legal, relief. The court could not, upou the demurrer, hold any part ofthe a!legatiol1s insufficient, Dar relieve the defendant from answering all the 8l1egations of fact in the bill contained. The sale question, therefore, attempted to be presented by the demurrer, is as to the particular relief the court will grant, provided the facts are found in a particular way. That is a question to be determined on the final hearing, and not upon Ii. demurrer. It is admitted that the bill presents a case of equitable cognizance.· When the issues of fact are determined, then the question of the relief,'if any I and the nature thereof, to be granted, will be prop-erly before the court. If the court should now decide, on thedemurrer, . that the particular relief asked was purely legal, the case would remain to be heard upon the allegations of fact in the bill contained; and OD the fina1- hearing, under the special and general prayers for equitable relief, the court woulc1 be required to determine the nature of the relief to be granted. The real question, therefore, which it is sought to· present by the demurrer, is one that can be properly decided only at the final bearing. The demurrer, therefore, is overruled.
'etal. v. WELSH et ai.
'(CircUit Court, D. South OaroUna.March7,1890.;
(SVUa1YU8 ,1111 the
The evidence may be very conclusive that ODe Jlurchased a stock of goods with the 10rmed, intent to sell' it, immediately, and to ' Q.oldthe in fraud of th& .whom he 'pUl'chased; but mere suspicion, however grave it be, will not , ,be sufticient to convict'his vendee of fraUdulent collusion, if hiS'VBl'ticipation. in the fraUd isn.ot made out b7 ole&l' prepollderanceof testimony. '
;. InEquity. ,
,'",,' " ' and & Lee, for L. F. Youmans, for : " , '
: ,This isablU hi equityfile<l by certain citizens of Maryland to set a sale of a iltRckpf goods in La,ncaster, S., 9. ,mp-de on the 22d by the W t9 his,co-defendant, ]3. F.W'elsh, of!r,R. Welsh.;Tbe facts'in the case present no great difficulty, in cOll1ing t9 the conclusion that T. J. had a well. settlEld determination to, buy as many goqds as vendors in Maryland and elsewhllre, over anxious tosell,-perhaps too credl.llous,-would sell to };lim', without the most remote eXpe,lltlltion 011 his part orpaying for them. Shortly, after his r.eturn',to of the goods, so easily he sold out'the whole stbck in trade to J. R. Welsb.. 'rpeprice paid by his bl'Atber,as th,e goods ",fair ?ne,provided it lIoctually paid. ':J.'hJe of',tllis is you credit the witnessesJ()r tbe defend. antj'and It qUltecertalD tbat J. R. Welsh, the wasabundantly ltbleto:make thepurcbase and pay for the goods. "As to the cred· ibility of for <;lefendani, while .their is unshaken. by it" suspiciously untrue, bl.lt, ·unless better prpofis it, we suppose it must stand,. ' The burden of proof to fraud in this transaction is on the complainants, Wpich ;burden, "iljldeed, assumed; but, have suoin' rajsing,avery dark clOUd of whol!:! transac-: they affirmatively sho""il t};latJ. tllereal pee, was at all a party to fraud,or,had any l'eason.fusuppose h!:! was 0D:e. , .)Tll!:! billw.ill be dismissed, with divided.
sat.in this ,and, while 'be ,has not seen "bove, coincides.}n tbejudguient.., '. .,; ';, . .