under no obligations to make known the truth. He had entered into a combinatioDto obtain the money or property of Youpgby becoming an active party in the suit against Young, and in equity he lIlust be deemed to be a co-pJaintift' with Lee, and equally chargeable. with him with thefraud perpetrated upon the court and the defendant in that, action, when a judgment was taken fora large sum upon a claim which the plaintiffs knew had been already fully paid. If the grcivctrrten of the bill was the charge that the judgment had been obtained by perjury committed on the trial of an action at law, the objection urged ,to the failure to set forth specifically in what the perjury consisted"and by whom it was committed, would be well taken. Such does not seem to be the purpose; however, of these allegations. They are doubtless made in support of the gtmera.l allegations that in fact the complainaMdoes not now, and never did, owe any sum as damages for the alleged assault, which again is made to negative the idea that might otherwise be;urged, that complainant .ought to pay.the sum actually due 'before asking relief against the judgment in'question. Many ef the points urged in argument by counsel for 'defendant may have weight when the cause is heard upon the evidence, because the facts may then make the propositions advocated by counsel pertinent and proper to be coosidered; but as the case is now subDlitted upon demurrer it cannot be said that .ground for relief in equity against the judgment and. the eale, of property based thereon is notshQwD.. The demurrer is therefore overruled, with leave to defendant to answer the bill by Dm rule-day. WOOI..SOB, J. I concur in the foregoing opinion.
WIIITB fl. BOWER.
Coun, B. .D. G,orgta, E. D. Ootober IT, 1891.)
£JO) Ca088-BILL-AJTIBJI(ATIVB RBLIBJ'-STA'I'JII PBAG-
Equity proce.dure In the. qntted Statelcourta II not atreoted by the lawl of the Btates In whioh the courts. are held' and therefore, in a suit for IlCcounting, discovery··nd' other rellef,th& defendant oapnot obtain affirmative relief by an .. the natureo! a croBs-bill, .. drawn in accordance with the state practice. Unuer'8qillty rule 90, affirmative relief mUlt be Bought byor08li-bill, as in the English high coutt of chancery.
, Bill for accounting, diseovery, and other relief. On exceptions to answer. R.IR.RWharfh and JOB. A. GTonk, for complainant. Denmark, Adams &: Adams and W. M, Hammond, for respondent.
SPEER, J · The plaintiff filed hill' bill against the respondent on the 8cl of July, 1889. The prayers are for accounting,discovery, and other
WHITlll '/I·. SOWER.
relief,. \Vith reference to, disputed growing out of the management of what IS known aa the "Piney Woods Hotel," hl Thomasville, in this state. It is not hecessary at this stage of the proceedings to state more at large the nature ofthe plaintiff's suit. The respondent at September rules, 1889, filed anUanswer in the 'nature ofa cross-bill." In this.aftirmative relief against the plaintiff is sought. This proceeding appears to have been adopted to accord with the practice of the state courts as defined by section 4181 of the Code of Georgia, the language of that rule being aj! follows: " A cross-bill need not be filed in this state. The defendant in every case may set up any matter in his answer which under the Englil>b practice should be the subject of a cross-bill, and may require therein any discovery from the . complainant he may desire." The respondent has excepted to that part of the answer which .purports to be a cross-bill against the complainant, "upon the ground that such matter constitutes no answer to said bill, or to any part thereof,aud, if appropriate subject-matter of a cross-bill, the same should be propounded separately from said answer in and by suitable allegations and prayers, according to the rules and practice in equity." The exceptions were set down for argument, and the argument had, and, having taken time to consider the same, the court has concluded that the exceptions must he sustained, and all portions ·of defendant's answer by which the p,flh:mative action oithe court in her behalf is sought must be stricken. In Ford v. DouglaB, 5 How. 166, 167, where an answer in the nature ofa cross-bill had been filed, Mr. JusticeNELSoN, in rendering the decision, observed: "It is said that in some of the western states an answer like the one in question would be regarded in the nature of the cross-bill, upon which to found proceedings for the purpose of setting aside the fraudulent conveyance. But the practice in this court is otherwise, and more in conformity with the established course of equity. Weare of the opinion, therefore, that the appellant mistook his rights in attempting tQ raise tht> question of fraud in the probate sales in his answer to the injunction bill. and that instead thereof he should have tiled a cross-bill, and have thus instituted adirect proceeding for the purpose ofsEltting aside the sales." See, also, 2 Daniell's Ch. Pro 1647. This is unquestionably the rule of the English high court of chancery, and equity rule 90 of this court provides: "In all cases where the rules prescribed by this court or by the circuit court do not apply, the practice of the circuit court shall be regUlated by the present practice of the high court of chancery in England, so far as the same can reasonably be applied consistently with the local circumstances and local conveniences of the district where the court is held, not as positive rule, but as furnishing just analogies to regulate the practice." The state statute upon this subject does not help the answer. In Noonan v. Lee, 2 Black, 499-509, it is held that"The eqUity jurisdiction of the courts of the United States is derived from the constitution and laws of the United States. Their powers and rules ot decision are the same in all the states. Their p'actice is regulated by them-
Belves, and by the rules established by the supreme court. This court J8 invested by la'W with authority to make such rules. In all these respects they are unaffected by state legislation." Neves v. Scott, 13 How. 270; Boyle v. Tumer, 6 Pet. 658; .Robinson T. Oampbell, 3 Wheat. 223. It therefore, that to obtain the' benefit of her averments, and of the prayers set out in the answer seeking affirmative action against the plaintiff, the respondent shol'ild have filed a cross-bill in accordance with the rule. Railroad Cb. v. Bradley8, 10 Wall. 299. Let order be taken in accordance with this' holding.
FINANCE Co·.OF PENNSYLVANIA ". CHARLESTON, C.
&: C. R. Co.
(emmCt Court, D. South CaroMna. November 19, 1891.)
RAILBOAD OOuPAlIfiES-FoRECLOSURB 011' MORTGAGE-LIENS II'OR BUPPLIEII-PRIORITIJlS.
Persons who furniSh labor, supplies, and materials to a railroad, in order to keep it. a going-concern, .are entitled to payment out of the earnings thereof before the pay. ment of any interest on the mortgage bonds; and if, in a suit to foreclose, it appears that money 'due upon claims of thIs nature has been paid out as interest on the bonds, or for permanent improvemllntt, whereby the. bondholders have been benefited, thecoilrt will order an amount equal to the sum so diverted to be paid upon such .claims out of any earnings ill tll.abandll of the receiver, or, failinK these, out of th& proceeii_ oftha sale.
In Equity. SuH by, ,tqe,Fi;naJ;lce Com.Pl\nY9fPennsylvania against the Charleston, Cincinnatl&. Qhi'cago RailrqadCompany to foreclose a mortgage. Mr. P. H. Chamberla:i.n waso,ppointedpermanent receiver of the road Feb· ruary ,18-91. ; See 45 Fed; Rep. 436. The hearing is. now upon in. terventiolls1by,thePocahontasCanal Company, Atlanta Rubber Company, CQlnpIlIly,fairbanks, & Co., Smith & Courtney', ,ij;Elrwailn Baruch, the Meckle!1burg Ice Company, Wm. Bird & Co., andbthers, claiming superior liens for supplies, etc., furnished prior to the receivership. B. A. Hagood, A. M.Lee, ;Huger G. Sinkler, and BuiBt &:BuiBt, for ela.imant.':'· ' ..,.;. . '. Samuel lbrd, for defendant. all interventions in the main ·. Each them isfqr and 'tnawrials, necessary for the of 8. railrolld. ;W;ithvery few exceptions, the supplies and materials were furnished within the six months preceding ,theappointnientof the receiver. of the income of the it is in the hands of the receiver, and" failing this, that they may 'be paid out of the proceed!3 qf th,e saIEl. when it is made,in priority: theIJ;lortgage de1;>t, nowbe issuedtqtherilin pay,. mente 1 '