saidhusiness,and expel his prop· the state for mercantne purposes, from the state. Certainly, such condition of affairs call into activity the equity powers of the court to protect the property rights of the complainant, secured to him·..b y tbeeonstitution olthe United States. Such an emergency, we thinkris: provided for by section 1979, Rev. St. U. S., which declares that...;.,;.: i, " , ..Every PEll'SOtl, who" under ¢olor of any statute, ordinance, regulation, cusstate or, subjects, or causes t9 be subjected, any tom. or citizen the jurisdiction thereof, to the deprlvatfott of any right!l,:privileges, or immunities,secured by the constitution aild' ia:wS,shal1 belilible to the party injured in ari' action at law, luit in equity, or other proper proceeding. for redress. It Nothing,: or:course, 'said or enjoined, if! to be construed as extending to at(y prosecution to which the complainant or its agents may be lawfully subject for selling sucb articles otherwise than as importers, in the original packages inwpichthey may be imported, within the protecting termso( the federal constitution, as interpreted by the supreme '. With this limitation, the temporary writ of court ofthe qniWd injunction sh6u1d be granted.
(C4rcuttOowrt, D. Kamas. July 18, 1890.)
Persons have been indicted 101' the sale 01 intoxicating liquors ia the original packages ib which they were imported, and separately enjoined from making such sales, cannot maintain a joint suit for Ilin injunction against such proceedings, though they are, respectively, the agent and subagent of the same im, ' ,
In Equity., ,Bill for injunction. The complainantM. Wollstein is a citizen of the state of Missouri, engaged there ih the business of a wholesale liquor dealer, and since the 13th day ofMay last past has been engaged in shippingfronl said state, into the state: of KanllRs,such liquors, in orig;inal packages. Said liquors were shipped to Topeka, Kan., consigned to the co-complainant Sichel', as his agent, to sell the Same in the original' packages in which they were so shipped. SaidSicher, being empowered by said principal to employ'any subagent, to 'assist in and about the said business, did on the 20th.day of May;>.1'$90, employ the other complainant, Schmidt, as such subagent or assistant. The said Sicher and: the said subagent received said packages, and proceeded to sell the slbne at Topeka. On the 28th day of May, 1890, the respondent, Welch, acting as county attorney,of Shawnee county, in which said sales were being made, caused
WOOLlITEIN ". WELCIL
, the arrest, on separate informations, of said Sicheral!<1 Schmidt, for violating what is known as the "prohibitory" law of the state in so selling such liquor. At the same time the said Welch filed separate petitions in the state district court agaiJaatthesaid Sicher and Schmidt, charging that the place where such business was being so conducted was a nuisance, and asking for. tiD ,injunction closing the same up, and enjoining defendants from further conducting said business thereat. On these petitions the court, without indemnity bond or notice to defendants therein, made a temporary order enjoining the parties, as prayed. Upon the arrest and imprisonment of the, parties under said criminal charge, they applied to. the United States. district court· for a discharge under a writ of habeas corpus. Upon hearing therein, they were discharged therefrom, (ante, 545,) on the ground that, under the commercial clause of the federal constitution, the said Wollstein had a right to import said goods in,to the state, and the said agents had a right to sell the same in · the original packages, as they had done, any law of the state to.the con,trary notwithstanding. The. petition charges that, notwithstanding the. premises, ·the saidre, spondeI;lt, the purpose to prevent the said agenta: from · making such sales of such liquors in said state, threatens to continile to so prosecute and imprison said agenta, and to have them arrested, on .C()ntempt warrants from the sll,id district court, for violating said.injunction. order in like sales: made since their discharge under the writ of habeas qorpUB. The prayer of the petition is that respondent be restrained from carrying into· execution his said threat, and further molesting the · complainants in the peaceful aI;ld lawful pursuit;of said business. Re, spondent has demurred generally to the bill on a hearing for preliminary injunction.. Whe!:zt, Ohetmy & Ourtia, for complainants. L. B. KelJ..ogg, Atty. ,Gen., for defendant.
PHILIPS, J., (after stating the facts as above.) There is some confusion in parties complainant, and mingling of distinct claims for relief,,' in the bill of complaint, which, even under the flexible and versatile rules of equity pleading and remedies, are hardly permissible. Wollstein, the non-residentimporter, is joined as co-complainant with his agent, Sicher, , and the subagent, Schmidt. The only interest, recognizable inequity, ,Wollstein is shown to have, is that, as an importer, his property rights , and interests may be affected by the threatened acts of the respondent. . But the other co-complainants are not so interested therein as to authorize their joinder, or entitle them to any relief on that ground. It is a general rule of equity pleading that no person should be made a party who is not interested in the of the sait, and for or against whom no decree can be made. It is on this ground that agents, asarule, " not joined with the principal. Story, Eq. Pl. § 231. As to the :threatened prosecutions agaillst.Sicher and Schmidt, either criminally or , civilly,U;tlder the contempt proceeding for violating theinjunction order 'court, it would, be, wholly personal as to them, as affecting of the
their liberty, and their righ t to pursue, unmolested, the business of their employment. As to the matter for which Wollstein' could alone ask for relief, the bill does not seem to be framed on such a theory j and the averments in this respect, we think, are not sufficient to warrant such relief. It is competent for a court of chancery to grant relief to some of the co-complainants, and not to others, and it can give different relief in character and extent to different complainants. 1 Pom. Eq. Jur. § 115. So, if the other two complainants present grounds for joint relief, it may , be granted them. On the other hand, if their interests in the subject,matter be several, the temporary injunotion should not be grantE'd, as it would be dissolved at the hearing on motion or demurrer. Jones v. Del Rio, Turn. & R. 297. ' 'In Hudson v. Maddison, 12 Sim. 416, a bill by several occupants of , houselilto restrain the erection of a steam-engine, which would be a nui, sance to each of them, it was held that each occupier had a distinct right of;suit,and consequently could not sue jointly. This was placed on the ground "that, as each of them has a separate nuisance to complain of, , an answer t()iOne may not be an answer to the other; and 'if, upon such a bill, a decree were to be pronounced', it must be a decree '-which:would proVide for five difi'erentcases." So if we should apply to the faets' ofthe case as disclosed by the bill, the ruling in Tuchman v. Welch,ianooj 648, (opinion filed of this date,) holding thatcomplainllnts are entitted to the reHef prayed for agliinst the threatened proceedings in " the contempt warrant, in the nature of an ancillary proceeding in the severalcases, 'we,are confronted with this formidable difficulty: It appears from the petition, as also from ,the exhibits thereto, that the suits in the statecOuljin'which the temporary orders of injunction were granted were separate actions, and separate restraining orders were issued against Sicher and Schmidt. The action against them was not joint. The breach of the order would be the individual act of each,and the contempt warrant would be issued separately in each case, or might issue against one And notibe-other; as one rnightviolate it and the other not; and the answer which one might make the other might not. The parties were separately indicted 6rinf6rmed against,and separately Both being servants of Wollstein,or, at least, Sicher being such servant, and Schmidt his subagent, each is responsible to the law of Kansas for his , own aet,and not that of his fellow-servant or principal. While they might jointly make a sale, and by that common act violate the order of, . injunction, 'yet, as the matter stands, the respondent could only proceed against them separately for contempt. The joint suit to enjoin against ,the threatened action, in our opinion, is improper. ' The' matter soUght to be enjoined is the threat of respondentto continue to harass'Sicher and Schmidt with other criminal prosecutions for allY future like sales.. As each could be separately prose-, cuted for his act, and as the joint sale of a package would be an act so improbable\ we perceive no propriety'ina joint proceeding of injunction. lnother ,words, ,as mere employes, servants of the importer,with no commuaity'of interest in the property,' presumabfy
JAFFREY V. BEAR·.
wages, each having a personal accountability to the employer, ahd aseveral personal liability to a criminal prosecution, there is ever)r good lj:lll.son for disallowing, and no sufficient reason is apparent fOl indulging, a joint suit. In view of this conclusion, we omit any discussion of the right to relief sought in a proper form of action. It follows that the writ of injunction is disallowed.
(Oircuit Court, E. D. North Oarolina. May 14, 1890.)
EQUITY JURISDICTION-REMEDY AT LAW-SETTING ASIDE SETTLEMENT.
Where a.creditor has recleived a portion of his claim in full settlement. but has given no release under seal, a bill in to set aside the settlement will not. lie, since he still has the right to sue at'law for the residue of his claim.
SAME-STATUTE Oll' LIMITATIONS-FRAUD.
The fact that a creditor hali! been induced by the fraud of his debtor to defer bringing suit until his claim ill barred at law by the statute of limitations doeanot give a court of chancery jurisdiction of the cause of action.
In Equity. E. S. Martin, M. BeUamy and T. Strange, fOl plaintiffs. D. L. R'U88ell and George Davi8 « Son, for defendants. SEYMOUR, J. The plaintiffs allege that in October, 1881, defendants' firm became indebted to them in the sum of $3,206.53, and that in November of the same year it made an assignment giving preferences to creditors, or alleged creditors, other than, plaintiffs, to the amount of $75,OOOj that upon their own investigation and representations of defendants to the effect that the debts secured in the deed of tru'st were bonafide, they compromised at 25 cents on the dollarj that they have since discovered a considerable part of the amount so secured to have been wholly fraudulent, and made up of fictitious debts inserted in the <leed of trust for the purpose of inducing creditors, among them plaintiffs, to accept less than was due them. While more than three yearp, have elapsed since their cause of action accrued, they aver that less than that time has passed since they have discovered the fraud practiced up-on themselves and the other creditors of Sol Bear & Co. They claim that though' they may be barred by the state statute of limitations, both at law and in equity, in the courts of North Carolina, as has been decided in Jaff'/iXYv. Bear, 103 N. C. 165, 9 S. E. Rep. 382, they can yet maintain an equitable action in the United States courts. For this they cite several decision,s of the supreme court, and in particular Kirby v. Railroad Co., 120 U. S, 130, 7 Sup. Ct. Rep. 430. In that case Mr. Justice wb.athas lqng been the settIeg rule in the UnitedStatE.lfJ