.v. EQUITABLE LIFE ASSUR. SOC.
destruction of the distributive share of the complainant, and, further, that they have mingled the trust moneys of the estate coming into their hands as trustees and executors with their own money and property, instead of keeping the same separate and apart, by reason whereof the money and property of the estate is likely to be confused, so that it cannot be separated from other funds. 'the averments of the answer to which exceptions are taken are in response to these wholesale charges, with reference to which the respondents have a right to vindicate themselves. It was said, in substance, upon the argument that there was no intention to reflect upon the respondents, and that the bill was drawn in accordance wjth approved forms,and it was insisted that the averments of the answer excepted to did not touch the merits of the cause, which was not intended to be adversary, but merely for the construction of the will and the ascertainment of the rights of the complainant. Nevertheless the averments are in the bill, and, being there, the respondents have a right to answer them fully. Originally a bill in equity conRisted of nine parts, of which there were five principal parts, to-wit, the statement, the charges, the interrogatories, the prayer of relief, and the prayer of process. But all these, according to more recent authorities, may be dispensed with excepting the stating part and the prayer for relief; for, as Langdell in his hand-book on Equity Pleadings states: "All that. was ever essential to a bill was a proper· statement of the facts· which the plaintiff intended t() prove, a specification of relief wltichQe claImed, and an indication of tbe legal. of sucb relief," Section 55. Had the bill been confined to these limits, as it might have been, there would have been no occasion for the answers to which the exceptions are directed; but, as,it was not so limited, and as the answers do not go beyond what is respOll$ive to the bill, the exceptions will be overruled, without taking into consideration whether the matters set fortb in the portions pf the answer to which the exceptions are taken are material to the final disposition ofthe cause.
tI. EQUITABLE LIFE ASSUR.
OF THJil UNITED STATES.
(Oftrcuit Court, D. MassachUsetts. 'February 9, 1891.)
A court of equity has no jurisdiction of a bill by an under a tontine policy against the insurance company for an accounting.,
!:lAME-FBDBRAL COURTS-STATE STATUTB.
Pub.: St. Mass. c. 151, § 2, cl. 10, which confers equity jurisdiotion in oases where "the nature of, the account is such that it cannot be conveniently and properly adjusted and settled in an action at law, " does not extend the,juriBdiction of the federal courts even in suits remQved 'frOID the state courta.
In Equity. On demurrer. Ball, & Towe.r, for complainants. ·. Jr., and CfharleBE. HeIliRJr, for defendant.
J. Thequesti'otl raised by this demurrer is, whether it bill in equity will lie for an 'account against the defendant com'pany for the amount due on a tontine policy, or whether thEl'ftl'oper remedy is at law. The policy wasfor$1}',OOO, and was issued to 'the complaillllntIIunton, andtbetoritine period: expired August 14, 1888.' By the terms of the policy, the legal holder had the right at the, completion of the tontine perlod<to withdraw, in cash, the'policy"s entire share 'of the 'assets, whether in the teserve'fund proper'or the accumulated assets. 'In this case'the Mmplainants j being dissatisfied with the amount allowed by the defendant, have brought this bill in equity for an and the thatthe plaintiffs have defendant has demurred, on three grounds: not stated such a case. as entitles them to any relief in equity against the' defendant; second, that it does not appear that anyfidtlciary relation subsiflt&between the plaintiffs and defendant, and that, therefore, their cause of action, if any', is cognizable in a court of common law; third, that the plaintiffs have riot 'stated such a case as entitles them to demand in equity an account from tbe defendant. If this bill can be maintained, it must be on the ground:that a trust relationshi p existed between the parties, or thattheaccount'is of such a character that equity jurisdiction attaches. ,That no trust exists ,between the 'assured and the insurance companyhas been held ioPiercev.SoCiety, 145 Mass. 56,12 N.E. Rep. 858, and Bewleyv.Society,61 How. Pr.344 j and I agree with the reElsoningofthe court inthoseca15es( I auth()rity of Root v. Railway Co., 105 U.S.' 189, tbat, thIS merely a suit 'for an account, and it not appearing that anyotherground6fequitable jurisdiction exIt bill inequity canDot,upon general principles &overningthe jurisdiction of courts of equity,' be l'naintained. :The pluintiffnely, in this case, upon;" provision of the Public Statutes of Massachusetts, (chapter 151, § 2,d. 10,) which confers equity jurisdiction. in cases where "the nature of the account is suchthat'it cannot be conveniently and properly adjusted and settled in an action atlaw." This billwRsotiginally brought in the state court under this provision of the statute, and it waH properly removed by the non-resident defendanUo this.court. The question arises, therefore, whether the United States courts should follow this provision of statute.,. In support of the position that the federal courts'are' bound by the stahfte-,'tlie plaintiffs citenlinierous authorities.' The general pas been sustained by the supreme court'is this: that the federal cour'tswill recognize and enforce any new equitable right. or remedy created by fltatl;jlaw; and they contend that'the' present"dasec()rn,es Within the prirlciple}aid down in these decisions. We are here 'dealing with a question of procedure or, remedy relating to equity jurisdiction, and we must bear in mind the ,which t1:le&mtpte relates, and what modification' or change in the old rule it, has brought, RIDout. It is well 'settled that the equitable jurisdiction of the United States courts cannot be changed by state stntute. The rules governing the equity jurisdiction of the federal courts are founded upon those of the high court of chancery in' England. ,Now, what is'the'effebtb£ the Maeaachusetts statute?lttakes'a certain
HUNTONV. EQVITABLE LIF'.Ji],ASSUR. SOC.
class of cases that under, procedure would have. lobe brought on the law side of the court, :to the equity side. It enlarges the equity jurisdiction of the court in relation to accounts. In this very case, where equity jurisdiction would not attach under the rules which prevail in the United States courts, it permits a party to bring a bill in equity. If the federal courts are to adopt a state law which in part breaks down the distinction between the legal and equitable' jUl'isiliotion of:the'tcourt,' I do not see\Vhy the same doctrine'woUld not lead to the adoption by the federal coutts ofithe state practice in those states which have a Code, and where no distinction is made between law and equity. The cases referred to by the complainants 'do not, I think, support the position they contend for. It true l'ightsandremedies may,:be cr.eated by statute,· but they must be, eguiIn the cases relied uponb)' the plaintiffs, it be fOund that the supreme court has,in',no w.ayrecogni:zed any· doctrines looking towards state control of procedure in equity in the federal courts. In Cummings v. Bank, 101 U. S. 153, the new remedy,.dreated bystatutelV8s an injunction to enjoin the illegal levy ·of taXe£l; and Mr. JustioeMm..LER says, (page 157:) "Hei'etbere can be no dOUbt thilt the remedy by injunction against an gal tax,;expresslygrantedbythe statute, is to be enforced. and can only be appropr.iaooly E)nforced on the equity side of th,e court." In New Orleans Adm'r;131 t. 8.191, 213,9 Sup. Ct. Rep. 745, Mr. Justice BRADLty, ,in referring to a provision Of ilie'dvillaw of Louisiana; as a ground fot maintaining the suit on the equity side '0 f the court, says: . "The right thus claimed 'f6t the creditor ... '... ... 'properly be pursued in a suit in equity; silice it COUld. not be- pursued'man action at law in the coutts of the UniledStates." .'
The seemtorel,y largely upon' the suit of Holland v. Challen, 110 U.. .s. 15,3 Sup. Ct. Rep. 495. That was a bill in equity brought to quiet title under a statute: of Nebraska. 'Mr. Jt1sti,ce: FmLD, speaking for the court, says, (page 25, 110 U. S., and page 501, 3 Ct. Rep.:)," .',. " ,.
"It doe,S not followthat'QyallowinJ:t in .the federal cou,rts for relief under ,the statute of .Nebraska,.c?ntroversies properly in a court of law w111 be drawn Into aeGurt of equity.. There can be no Controversy at law respecting the title to 01'right6f possession of realproper'ty when neither olthe parties is in possession. ,An action' at law, whether in the ancient form of ejeetmentor in the. form now com manly used, will He only against It party i11 Should. suit 'brought .in·· the' federal. eourt, ,under tbe .Ne'l;l,raska statute, against a party, in possession. there would be force in tl;i.e objection that Ii. regal controversy was withdrawn from a court of law; but that is hot this case, nor is 'it of such cases we are speaking." ..
·titre. It is.suflici(lnt
/ : I do not deem it necessary,torefer tQ the: 'bythe'plainsay thatjn opinion they 'do not apply to this. caSIl. .TheMassachusettsst,atute, do,es nQt crel:\te a but fVithdrawa oertll-in. from; .. Jaw:,iliJ,tQ,
of equity; and the federal courts are to adopt it only so far lIS it is consistent with the mode of procedure in equity cases established by the courts of the United States. Demurrer sustained.
TRUST CO. ". GREEN BAY, (FRANCK, Intervenor.)
W. & ST. P. Ry.
(Ofn'cw£t Oaurt, E. D. W'I.8con8'£n.
March 28, 189L)
A claim against a railroad company for causing the death of plaintiff's intestate .is a demand arising from a failure of duty, and could not by its qreation benefit, preserve, or increase the corpuBof the estate of the company, and is not entitled to priority upon the foreolosure of a mortgage thereof.
In Equity. Upon the intervening petition of Emily Franck,administratrix, eW. The bill is filed to foreclose a trust-deed executed by defendant to complainant on the lst day of September, 1881, upon itsline of railway, to secure its bonds of even date, aggregating $1,600,000, maturing in 1911, or at the option of the trustee, upon default in payment ofinterest. The interest of the bonds was payable· semi-annually on the 1st days of February and August in each year. Upon default in the payment of interest, continuing 30 days, the trustee at its election might, and, upon request of the holders of one-fourth in amount of the bonds, should, take possession of the mortgaged premises, and dispose thereof at sale, as provided. Default occurred in the payment of interest due August 1, 1888, continued after default for more than 30 days, and in all subsequently maturing interest. On. the 31st of July, 1890, the trustee, after proper request of the bondholders, demanded and received possession of the mortgaged premises, electing to as matured th(:l entire principal sum of the bonds, lj>nd has siDce operated the railway. On the 14th August, 1890, the trustee filed this bill to foreClose. On the 18th of August an order of the court, entered by consent of the parties, affirmed the possession of the trustee, authorizing its continuance in possession under the protection of. the court, and conferred upon the· trustee the usual powers and duties ola receiver. No provision was made by the order with respect to the floating indebtedness of the railway company. On the 5th day of January; 1891, Emily Franck filed her intervening peti. tion, representing that Martin Franck, aconductot ill the service of the railway company, lost his life on the 15th day of April, 1890, in the discharge of his duty, without fault on his part, and solely through the neglect of duty of the railway company; that he left a dependent father; that the railway company is insolventjand that she, as administratrix of the estate of the deceased, prefers this petition to obtain for the father proper indemnity for the loss of the son, rightfully demandable under the la.ws of Wiaconsin. The complainant takes issue with the petition;