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Citation: 2 Edgar N. Durfee & John P.

Dawson Cases on Equity


ed. ii 1946

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TABLE OF CONTENTS (continued)


Chapter
X.

Page
. . . .

EQUITABLE CONTROL OF LITIGATION.


Sohler

Sohler.

v.

Earl

of

Bath

Gray

v.

Coan .

Benedict v.

v.

.
.

Sherwin

.
.

Hall Manufacturing Co .

0.

704

705

. .

711

Norfolk & New Brunswick Hosiery Co. v. Arnold . . .


Pacific Mutual Life Ins. Co. v. Parker.
Maytag Co.

v.

Meadows Mfg, Co.

Mayor of York v.

Pilkington

714

719

. .

722

724

TIECOMMON LAW RULES AS TO JOINDER AND CONSOLIDATION . .


Dodd

v.

Hartford.

Carlton v.

Hale

v.

Newman

.00 .

00

Allinson

Southern Steel Co. v. Hopkins

. .

713

727

728
730

735

738

731

First State Bank v. Chicago, Rock Island &


Pacific

Wilson v.

RC

Co..

Joseph

00.

American Express Co. v. Fox .

Dobson v, Pearce..

...

. .

744

. ...

State ex relo Bossung v. District Court

741

. . .
0

747

753
755

TABLE OF CONTENTS
Chapter
Page
XI.

. .
CANCELLATION OF INSTRUMENTS: CLOUD ON TITLE . . . .. . .
.
.
. . . . . . .. .
Venice v. Woodruff. . . . . . . .
.
. . . . .
.. . . . . . . . . . . .
Hardy v. Brier
Anthony v. Valentine,

. .

American Life Ins. Co. v. Stewart . . . . . . . .


. . . .
THE COURT'S "CONTROL OVER ITS OWN DOCIT".
.
. . . . . .
.
THE DECLARATORY JUDGMENT
Payne

v.

TERMINOLOGY

.......

Saginaw
. . .
& Sedgwick.

Fitzwater.

East
Longstreet

774
775

777

.
.

.
.

.
.

.
.

780
781

785

. .
. . .

. .

787

PLEADING DEFENDANTB CLAIM....o......................


.....
PUBLICATION STATUTES . . . . . . . . . . . . . . ..

791
792

INTERPLEADER

793

Pouch

v,

First

National

Maxim v.

. .

..........................

Prudential

TEE "SAME THING,

Ins.
Co
Bank v0 Bininger

DEBT,

Shotwell

..

.
.

OR DUTY".
.

Saratoga County v.

..

Deyoe

. .

Railway Express Agency Y0

.
.

.
.

. .
.

799

. . .

802

.....................

805
807

..

INJUNCTION AGAINST TORT. . . . . . . . . . . . . . . . . . . .


City of Syracuse v. Hogan
Goodman

Fisher v.

.
.

.
.

Kavanaugh v. Rabior
...
Haymany . Round.
Wheelock v.

.
.

.
.

Noonan.

Ryall

828

.
.

.0000

.
.

0.

813
824

o....

Mechanics' Foundry v.

Dennig v. Graham.

793
796

799

..

Jones

FEDERAL INTERPLEADER..........
XIII.

768
770

780

.
Key City Gaslight Co. v. Munsell.
Chicago Auditorium Assn. v. Willing

XII.

...........................

v.

Curtis
Rea v.

. .

763
764
766

.
.

..

..................

830
832
0

835

837

839

General Motors Corp. v. International Union


United Automobile Workers
Lincoln

Murphy v.

v.

West

Sutherland.
v.

Richards

Dower

. ..
.

.
.

Richardson

.
0

Sullivan v. Jones & Laughlin Steel Co..


Smith v. Staso Milling Co...
......
Pritchard..

Brandreth v.

Lance,

Marlin Arms Co. v.

846

, . ,

848

851

853

854

857
.

. .

871

874

868

..
.

879
884

. . . . . . . . . . . . . .

. .

Shields.

861

. .
0

863

.......

COMMON LAW AND STATUTORY COPYRIGHT

Crocker v. Manhattan Life Ins. Co., . . . . .


Tyler v.
City
of Haverhill.
. .
......
Magnolia Construction Co. v. McQuillan. . . . .

Gee v.

. . ..
.

Crescent Mining Co. v. Silver King Mining Co.


Goodson v.

...

843

..

Smith

Consolidated Title Co..

Hughes Trust & Banking Co. v.


Watson v.

888
891

0.

.00

894

897

TEE CONSTITUTIONAL GUARANTIES OF FREEDOM OF SPEECH


AND
Emack

OF TEE PRESS,.
v.

Kane

.
.

.
0

.
0

.
0

899

704
CHAPTER X
EQUITABLE CONTROL OF LITIGATION

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The ability of the chancellor to control litigation in other


courts was in earlier history an essential element in the great reforms
accomplished through Chancery remedies. Consider, for example, the
problems involved in the enforcement of the use or trust, to which the
chancellor was committed by the early decades of the 15th century. The
claims of the cestui que trust, resting essentially on ethical grounds,
could be enforced in part by pressure exerted on the trustee and, after
the development of the writ of assistance, by a sanction affecting
directly the trust property itself. When the .common law courts made
their fateful decision not io enforce the ethical standards which the
chancellors had already evolved, there remained a serious possibility
that the common law courts would give full effect to the trustee's
legal title (e. go, in an action of trespass or ejectment) and thereby
frustrate the chancellor's protection of the cestui- The latent conflict between the common law and equity systems was resolved by the use
of an injunction, restraining the trustee from resorting to the common
law courts, or from continuing his common action if one had already been
instituted, or from enforcing a judgment where one had been obtained.
Again, the evolution of the equity conception of a mortgage involved a radical departure from the common law analysis of the mortgage
(in accordance with the literal meaning of the words ordinarily employed)
as a grant subject to condition subsequent. On the mortgagor's default
in payment his interest could be terminated through resort to one or
another of the common law remedies. The opening up of a privilege of
redemption could no doubt be accomplished in many cases without any
restraint on pending or proposed actions at common lawo In many other
cases, however, it was clearly necessary to enjoin the mortgagee from
resorting to the common law courts or from taking any advantage from
common law actions already begun0
The divergent attitudes of common law and Chancery toward sealed
instruments produced a similar result0 In the classical common law
an instrument under seal could not be avoided for fraud of the ordinary
sort which merely induced its execution (as distinct from fraud in
the factum, creating misunderstanding as to the nature of the instrument itself), nor was it invalidated by mistake0 Furthermore, an
obligation -under seal was held not to be discharged by accord and satisfaction, nor even by performance (e.g., payment). The obligor who
failed to obtain a release under seal or the cancellation of the bond
The chanhad no defense to a common law action of debt or covenant0
cellor adopted a more ethical point of view and cancelled or reformed,
as occasion required, deeds of conveyance and deeds obligatory which
had been induced by fraud or mistake or had been, in his view, discharged by performance or by accord and satisfaction. He proceeded, of
course, in his characteristic fashion by ordering action by the party--surrender of the instrument for cancellation, or execution of a release,
or, in cases calling for reformation, the execution of new instruments.
No attempt to interfere with the prosecution of a common law remedy
would be needed if the relief in equity was obtained early enough0 But
what if the adverse party had already obtained a judgment at law? Again

705
the injunction was the solvent remedy, The common law judges, having
concluded that an equity decree ordering cancellation had no effect on
the instrumett itself, found it difficult to resist the argument that
the chancellor was not directly interfering either with the instrument
5 or with the common law courts which enforced it. The theory that equity
remedies operated in personam, originally a restriction on the effectiveness of equity decrees, thus became an important device for extending
the powers of equity courts and imposing on litigants the chancellor's
views of policy and morality which common law courts had rejected.
10
Much of the law we have been sketching has become obsolete. In
the nineteenth century most of our states reformed their procedure by
opening the legal action on a bond to "equitable defenses" of fraud,
mistake, duress, and payment: At long last this step has been taken
15 in federal procedure (38 Stat0 at Large, 956; 1915) and even in Illinois
(Civil Practice Act, 99 31, 43, 44: 1933). But, in the law, it is peculiarly difficult to live down our history. Equitable defenses and equitable counterclaims to legal actions present many thorny problems respecting the right to jury trial. We had a taste of that in Young v.
20 Vail, p. 562, and Di Menna v. Cooper & Evans Co., p. 568. Furthermore,
mediaeval law remains very much alive so far as concerns conveyances
of land. Except in those states where the common law developed abnormalities to supply the defect of equity jurisdiction (see Billings v.
Mann, 156 Mass. 203), it is still true that a deed induced by fraud or
25 mistake transfers a title which can not be divested without a reconveyance or a decree which operates in rem. But even here, a suit founded on the voidable legal title can ordinarily be answered by an equitable
plea, so that injunction against the action becomes unnecessary
That
means that the point about legal title has its chief significance in
30 its bearing on problems of bona fide purchase.

35

All in all, it is not too much to say that the old jurisdiction to
enjoin litigation because it is carried on in a court which can not or
will not apply the substantive .doctrines of equity has almost disappeared.
The next case illustrates in two ways the nature of the fragments that
have survived.
SOELER vo SOHLER

40
1902.

45

50

55

Supreme Court of California.

135 Cal. 323.

rPlaintiffs sue by their guardian ad litem to set aside the decree


of distributipn in the estate of Xaver Sohler, deceased, insofar as it
distributed a one-eighth of the estate t6 the defendant Paul Reuss as
son of the deceasedo The lower *-urt sustained a general demurrer to
the complaint. Plaintiffs appeal.
Plaintiffs' complaint alleges that defendant Lena Sohler was made
executrix under the will of her husband, laver Sohler, and was entitled
under his will to one-half of his estate, the children of Xaver Sohler
being entitled to equal shares in the remaining one-half; that -when she
as executrix petitioned for distribution of the estate she alleged in
her petition that defendant Paul Reuss was a son of Xaver Sohler and as
such entitled to a one-eighth interest; that the matter came up for
hearing on December 20, 1897 before the probate court and a decree was

706
entered determining that Paul Reuss was a son of the deceased and entitled to a one-eighth interest, distribution being then made accordingly; that Paul Reuss was in fact the son of defendant Lena Sohler
and was not an heir of deceased or entitled to any share in his estate;
5 that plaintiffs, the minor children of Lena and Xaver Sohler, had no
actual notice of the proceedings or of the falsity of the claim that
Paul Reuss was a son of deceased, that they were not represented at
the hearing except through defendant Lena Sohler, as executrix and as
their naturd1 guardian; and that defendants Lena Sohler and Paul Reuss
10 connived and conspired to deceive the probate court into distributing
a one-eighth share to Paul Reuss and to keep plaintiffs in ignorance
of their just claims to the interest so distributed to him. The complaint then alleges that the present action was brought promptly after
discovery of the fraud, that the time for an appeal from the probate
15 decree had expired, and that an appeal would be unavailing because on
the face of the record that would be brought up on such an appeal no
error could be shown. The relief prayed for is the vacation and annulment of such part of the decree of distribution as distributes oneeighth of the estate to Paul Reuss; that the property so distributed
20 to him be declared to be the property of the plaintiffs in equal
shares; and that it be distributed to them accordingly3

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30

35

40

45

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55

HENSHAW, J. * * * Respondents, against the sufficiency of the


complaint, urged by their demurrer that it is the exclusive province
of the court in probate to determine heirship and decree distribution;
that the complaint goes no further than to charge intrinsic fraud, in
that Paul Reuss succeeded, by false and perjured evidence, in obtaining a favorable decision upon a matter essential to the proceeding,
and one in which the court was bound to exercise its judgment, and
notwithstanding that the decision was obtained by such evidence, this
fact affords no ground for relief in equity. If this were all the complaint discloses, the respondent's contention would be undoubtedly
sound; for it is the general rule that intrinsic fraud, fraud by which
a decree or judgment is obtained by false evidence upon issues within
the case, is not such fraud as equity will relieve against, the theory
being that the losing litigant has had his day in court, and that while
it must always remain a misfortune that private causes shall be lost
by forsworn testimony, yet stronger than this consideration is that
which declares it to be the policy of the law to make an end of litigation, and in the nature of things there never could be a final judgment if every judgment was open to avoidance upon the charge that fraudulent evidence had been introduced in its procurement. Therefore, it
is the general rule that extrinsic fraud only will form the basis of
such relief as is here sought,--extrinsic fraud consisting in the failure to give legal notice to the adversary, the prevention of him or
his witnesses from attending the trial, and the like.
But when we come to scan the allegations of this complaint, it
will be discovered that there is more alleged than the mere procurement of this decree by false evidence. The executrix of the estate
was not alone the trustee of all of the heirs of the estate and of
all the parties in interest thereto and thereunder. She was the
mother of these minor plaintiffs, had their actual custody and control, and, as their natural guardian, was chargeable with all the high
duties pertaining to that relationship. As executrix merely, it might
be argued that she was a disinterested party, having no concern whatsoever

707
in the question of heirship or right of distribution, standing indifferent between the parties, and interested only in carrying into effect
the determination of the court upon these questions. But, as the mother
and natural guardian of these plaintiffs, her position was a very dif5 ferent one. She was under most solemn obligation to protect the legal
rights of her infant and dependent offspring. She was under like obligation to disclose to the court, on their behalf and in their interest,
all knowledge which she possessed, and she was under the same obligation
to see that their legal claims to the estate were properly presented
10 before the court in .probate; and with peculiar force did this duty press
upon her, in view of the fact that during all of this time she was executrix of, and administered upon, the estate through which her children
were to derive their property. Such being her position, it is charged,
that in violation of this duty, and of the rights of her minor children,
15 she connived with her adult son--not an heir to the estate of the deceased--to procure for him a distributive portion of that estate, and
that the conspiracy was carried to a successful termination. Here certainly is a charge of concealment upon the part of the guardian, when
she should have spoken in the interest of her wards, and collusion upon
20 the part of the guardian with another not in interest in the estate, to
the end that that other might despoil the wards of their rightful inheritance. It cannot to this be answered that the probate proceeding
upon distribution was not an adversary proceeding. It becomes adversary in every case where there are conflicting claims, and where there
25 be not the most perfect understanding and harmony between the claimants.
The moment heirship was set up by the false claimant, Reuss, that moment
between him and the rightful heirs an adversary proceeding was at issue,
and from that moment it became the duty of the guardian of these minor
heirs to see that the fullest presentation of their claims was put be30 fore the court. This, by conspiracy with her co-defendant, it is asserted
she did not do, and it is clear that her fraud in pushing on behalf of
Reuss his false claim to heirship and distribution, and in concealing
the truth from her own minor children, the rightful heirs, and in leaving
them in ignorance that they were thus to be deprived of their patrimony,
35 was fraud extrinsic to the case, which prevented their being properly
represented at the hearing, or from being represented at all.

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55

We conclude, therefor, that the complaint presents a bill for equitable relief. But for what kind of relief? The relief prayed for is,
that the court in equity should avoid so much of the decree as distributes the property to Paul Reuss, should decree that the plaintiffs are
entitled to that property in equal shares, and should distribute it
accordingly. * * * In this state the jurisdiction to determine heirship, and to distribute the assets of an estate, is vested exclusively
in the probate court, under proceedings in rem, strictly defined by the
statute. It is a matter of gravest doubt, therefore, whether it is
within the power of a court of equity in this state to set aside a decree of distribution so given by a court having exclusive jurisdiction
of the matter. But even if the power existed, its exercise, or even
the danger of its exercise, would have a most disastrous effect upon
land titles. The title conferred by a decree of distribution, after
regular proceedings in probate, has always been justly recognized as a
title of high and unimpeachable value, because of the nature of the
proceedings and of the exclusive jurisdiction which has been vested
in the probate court to pass upon the questions involved. If such a
decree may at any time be vacated in equity, it must result that no

708

10

title any longer stands secure. Moreover, aside from the question of
title, inexplicable confusion in procedure would result. Would the
court in equity, in vacating the decree, have the power to substitute
one of its own? If so, apart from the consideration of the exclusive
jurisdiction vested in the probate court, it would be the substitution
of an equitable judgment in personam for the probate judgment in rem,-the substitution of a judgment which can never operate upon any but
the parties and their privies, for a judgment which is binding upon the
whole world. But if it be said that the power of the court in equity
would be limited to the vacation of the decree remanding the matter to
the probate court to frame a new decree, what assurance can there be
that, after all this circuity of action and protracted delay, the decree of the court in probate might not be at variance with the views
of the court in equity? * * *

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30

We hold that, under our system, the utmost that the court in equity
could do, if it finds the facts to be as alleged, would be to decree
that the defendant Paul Reuss holds title as trustee'of the minor plaintiffs, and compel him to make conveyance and transfer to them accordingly of all that he may have obtained from the estate of the deceased to
which they were entitled, or, if a conveyance of specific property may
not be had, then to hold him accountable to the plaintiffs for the value
thereof. This we believe to be the limit of the power in equity in
dealing with the matter, and it is in accordance with the principle adopted by the English courts, expressed by Pomeroy as follows: "When probate
is obtained by fraud, equity may declare the executor or other person
deriving title under it, a trustee for the party defrauded." (Pomeroy's
Equity Jurisprudence., see. 919, and note.)
The judgment appealed from is therefore reversed, with directions
to the trial court to overrule defendants' demurrer- * * *
NOTE

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EQUITABLE RELIEF AGAINST JUDGMENTS SECURED THROUGH FRAUD. The power


of equity courts to give relief against judgments secured through fraud
was established in the famous controversy between Lord Coke and Chancellor Elleesmpre in 1616.
Before that date there is abundant evidence
that the Chancery enjoined the enforcement of common law judgments, both
where the obligation sued on at law was itself induced by fraud and where
fraudulent devices were employed in the course of common law litigation.
But this Chancery practice had met with some opposition from the common
law judges, an opposition which could be rested on the statute of 4 Henry
IV, c. 23 (1402), providing that "after judgment given in the courts of
our lord the king, the parties and their heirs shall be thereof in peace,
until the judgment be undone by attaint or by error." The difficulty
faced by the common law judges was the absence of an effective weapon
with which to retaliate, since the process of the Chancery in theory
and in fact operated against the person of the common law judgment plaintiff. With the advent of Lord Coke, "tough old Coke", to the Chief Justiceship of the King's Bench, the battle lines were sharply drawn. The
resistance to the Chancery developed through the use of habeas corpus,
the writ that was soon to be expanded as an effective instrument for resistance to political tyranny. The common law courts began to release
from imprisonment, through the writ of habeas corpus, the common law

709
plaintiffs whom the chancellor had enjoined. If this method had been
further pursued, the consequences for later history might have been profound. But Coke, not content with protection to the litigant against
the employed by the chancellor sanctions, undertook a more direct
5 attack. He instituted criminal prosecution for praemunire not only
against the private litigant who had sued in equity\after common law
judgment but also against some officials of the .Chancery itself, counting on a statute which was aimed at the Papal curia but which was
couched in terms broad enough to include any attempt to call the judg10 ments of the king's courts in question before any other court. This
attack on the Chancellor's authority induced King James to intervene.
On the advice of some well chosen counsellors the King decided the
dispute in favor of the Chancery. This episode should be thought of,
not as a personal dispute between two opinionated and irascible in15 dividuals over a relatively narrow issue in the law of res judicata.
It is the supremely dramatic moment in a long controversy between the
chancellor with his adherents and the judges with their partisans, a
controversy that involved the most fundamental issues of law and policy.
This smouldering antagonism between common law and chancery began almost
20 with the inception of the chancellor's judicial activity and it continued long after Coke's explosion--continued, indeed, until the administration of both law and equity was finally committed to the same set
of officials. Throughout this long period it was a point of real significance that Chancery process operated against the litigant, so that
25 the hand-pigked commission appointed by King James could assert that
the Chancery did not overhaul the common law judgment ben it enjoined
enforcement of the judgment, but that the chancellor "meddleth only
with the corrupt conscience of the party". Of course realists like Coke
saw clearly enough that the injunction actually interfered with the
30 finality of the common law judgment, though casuists could assert the
contrary.

35

40

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50

55.

In this area, as elsewhere, the scope of equity jurisdiction has


been restricted by the development of common law doctrine, making available in common law actions the issues as to fraud which could formerly
be litigated only in equity. The ancient jurisdiction to relieve against
fraud in the securing of common law judgments was reasserted in American
equity cases in the early nineteenth century. At this stage it was
strongly asserted that equitable relief must be confined to cases of
"extrinsic" fraud. What is the basis of the distinction between'"xtrinsion and "intrinsic" fraud, as explained in the principal case?
Has the distinction any merit?
Illustrations of "extrinsic" fraud for which 'equitable relief
has been held clearly proper are the corruption of the equityplaintiff's attorney by the adverse party, deception which prevents the
attendance of the plaintiff or his attorney at the hearing of the case,
the taking of judgment in violation of a stipulation for continuance.
or through similar deception, the use of a false affidavit of service
of process, or the fraudulent alteration of the judgment. Even in
these cases, however, the extension of the powers of common law courts
to grant new trials or to vacate their own judgments may make resort
equity unnecessary and the statutes and court rules of each jurisdiction must be carefully examined.
Controversy has chiefly centered around the question of manufactured or perjured evidence, which is commonly described as "intrinsic"

710
fraud. The leading case against equitable relief in this situation
is U. S, v, Throoknorton, 98 U. So 61, but there were other grounds
for refusing relief in that case and more recent decisions in the state
courts have indicated some willingness to relax the tests of the Throck5 morton caseo Boring vo Ott, 138 Wis. 260; Stenderup vo Broadway State
Bank, 219 Calo 593, discussed in 23 Cal0 L. Rev. 79; Bolden v. SlossSheffield Steel,& Iron Co., 215 Ala, 334, 49 A. L. R. 1206. Where there
is an affirmative duty of disclosure arising out of a ficuciary relationship, this element has provided a special ground for relief. Laun
10 v. Kipp, 155 Wis. 347, 5 A. L. R. 655. Is the reasoning of the principal case satisfactory on this point?

15

The problem is further discussed in 23 Calo L. Rev0 79 and 21 IllK L.


Rev. 833. An unusual case is Michael v. Rigler, 142 Md. 125. See also
the annotations in 16 A0 L. R. 386, 88 A.L.R, 1201, and 113 AoL.R. 1235.
CONTROL OF EQUITY OVER PROBATE PROCEEDINGS

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The power of equity courts to review probate proceedings involves


a complicated historical question, still further complicated by variations in state legislation on the powers of probate courts. The historical prototype of the modern probate court was the ecclesiastical court
in England, which possessed the power to probate wills and a limited
power over the administration of decedents' estates. The extension of
Shancery control over administration of estates was gradual and even in
England this control was never complete. In this country the establishment by statute of the probate or surrogate courts made much of the
English authority largely obsolete, though tradition has by no means
been eliminated, In many states there survived into modern times the
type of equity jurisdiction that may be illustrated by Garland v.
Higgins, 160 Tenno 381. Here it was alleged that A devised land to B
by a will which gave absolute ownership to B, but that B in the lifetime
of A had undertaken to hold the land in trust for certain heirs of A.
A bill in equity to establish a constructive trust in the land so devised to B was held good against demurrer, even though the will transferring the land to B had already been probated and the land had been
distributed to B. To the argument that the probate proceedings established B's title to the land free of the undisclosed trust, it was
answered that B was merely a constructive trustee and that the bill in
equity to enforce such constructive trust did not "attack the validity
of the will or deny that it passed to John W. Higgins an absolute estate."
The argument for resort to equity in these and similar cases rests
essentially on the inability of the probate courts to apply the substantive doctrines of courts of equity. Since the grounds asserted for
equitable relief lie outside the scope of the probate court's inquiry,
it is possible to invoke the familiar argument that the adjudication in
the probate court is in no way reviewed or reconsidered. It is nevertheless a fact that the intervention of equity modifies in a substantial
way the effect of the probate court's decisiono Difficulties with doctrines of res judicata and election of remedies occasionally appqar,
particularly where an unsuccessful effort has been made to invoke broader
equitable doctrines in the probate court itself. It is a large question
of policy whether this surviving fragment of equity jurisdiction should

711

10

15

20

not be abandoned through statutory extensions of the powers of probate


courts. This has been accomplished in some few states already, and. a
partial development in this direction has occurred in others. Involved
are questions as to the type of personnel available in probate courts
(laymen are eligible for probate judgeships in many states) and the
financial burdens of an enlarged jurisdiction. The discussion in 48
Yale L. J. 1273 is excellent.
As in the principal case, the jurisdiction of equity to relieve
against judgments secured through fraud and the jurisdiction to modify
the effect of probate decrees will occasionally overlap. The extent to
which both types of relief can be given depends on the statutory provisions of each state and no uniform rules can be stated. At one extreme is the position taken in Massachusetts, where even "extrinsic"
fraud in procuring a probate decree must be shown in the probate court
and cannot provide a ground for resort to equity. Farquhar v. New England
Trust Co., 261 Mass. 209. There remain a variety of cases, involving such
matters as the proof of lost or destroyed wills, the review of accounts
by fiduciaries, the concealment of assets for the purpose of defeating
creditors, and the interpretation of wills, where the practice in the
various states is widely divergent. The subject must be studied in detail
in the course of Fiduciary Administration,
EARL OF BATH v. SEERWIN

25
1706.
30

35

40

4S

50

55

Chancery.

Prec. in Ch. 261. House of Lords, 1709.


Parl. Cas. 373.

1 BrowVn

[Five actions of ejectment had been brought by defendant and his


predecessors in title against complainant and his predecessors in title,
in each of which the sole issue was the heirship to one George, Duke
of Albermarle, through whom both claimed. In each of these actions the
defendants had had a verdict, Nevertheless, defendant is now comencing other actions of ejectment, has prevailed upon tenants of complainant to attorn to him and has granted estates in the land in question.
Complainant prays an adjudication of the question of heirship and. a perpetual injunction against further proceedings at lawJ
The Lord Keeper [Cowper] , after this had been fully debated, took
time to consider of it, and now delivered his opinion, viz. that to
give the court an orginal jurisdiction, there ought to be a fraud, or
a trust, or some accident fall out in the case, to prevent some great
inconvenience, as between the lord of a manor and the tenants thereof,
to settle the several rights; if in case the right between the lord
and the several tenants was to be settled in separate actions, the
difficulty upon the lord would be insurperable, by reason of the multiplicity of suits at law, the like in settling boundaries, etc.: therefore this court will interpose and direct an issue to be tried, and the
conscience of the court thereby informed and satisfied; this court will
then put the whole in peace by a perpetual injunction.
But this case, he said, was in its nature new, and did not fall
under the general notion of a bill of peace; this being only between
A and B, and one man is able to contend against another; and. if the
courts of law on new demises will not suffer the former verdicts to

712
be pleaded, he could not help it: he said, e was satisfied of' the
vexatiousness of the defendant in this case; but if it was a grievance, it was in the law, which was proper Po- another jurisd'etion,
'viz. the parliament, to reform, and that it would be arrogance in him
5 by decrees or injunctions to take upon him the reformation of the law.

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Complainant appealed, and on his behalf it was argued that by


the present method of proceedings in ejectment, the appellants, unless relievable in equity, would be liable to perpetual suits and vexations upon the same questiono As to the objection, that the common
law having fixed no bounds to the number of trials in ejectment, persons were at liberty to prosecute in that way as often as they pleased,
and therefore a Court of Equity ought not to restrain their right; it
was ankwered9 that the method of trying the tit e to inheritances by
ejectment 'wks of no very long standing, for the ancient way of trying
such rights was in real actions; and there, the wisdom of the common
law had fixed proper limits to such prosecutions, for preventing vexatious and endless contests; and as so great an nLconvenience, and even
abuse of the'law was practised in this case, it was highly reasonable
that a Court of Equity should interpose, and obviate the mischief by
granting a perpetual injunction, after the right and the only matter
in question had been tried so often and fairly settled by so many
solemn and concurring verdicts.

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On the other side it was contended that where any person has a
right of entry into lands, he may by law enter whenever and as often
as he pleases, and9 when in possession, may make a lease; and if
the lessee be disturbed, an ejectment may be Drought in his name.
And this right the law had not thought fit to lim't or restrain, but
looked upon the party's bearing his o*n charges, and paying his adversaryts costs, to be a proper penalty on the one, and a sufficient compensation to the other; so that upon these term he might bring as
many ejeetments as he pleased: and, therefore, o r verse the present
decree would be directly to make a new law. * * * That for some part
of the estate no ejectment had yet been tried, and the respondents
were in possession of other part of it, which th aupellants could not
recover without a trial; so that the question could not be considered
as closed, while, with respect to any part of the estate, it remained
untried. And that the matter in question was pi rely a matter of fact,
triable by a jury, without involving any one point proper to give a
Court of Equity jurisdiction; nor was there any one precedent 3f such
a decree as the appellants sought for in this case, where the question
was singly a point of fact, between heirs at law on the one side, and
persons claiming under a voluntary conveyance on the other.
But after hearing counsel on this appeal, it was Ordered and
Adjudged, that a decree of dismission complained of should be reversed: and that the Court of Chancery should forthwith issue a
perpetual 'injunction to say the proceedings at law of the defendants in chancery, and all claiming under them, against the now
appellants and all claiming under them, upon the pretended title of
the said defendants, grounded upon the alleged illegitimacy of
Christopher late Duke of Albermarle0

713
NOTE
In Marsh v. Reed, 10 Ohio 347, after two unsuccessful actions of
ejectment, further actions were enjoined, "No precise number of trials
is necessary," In Patterson v. McCamant, 28 Mo. 210, where defendant
had brought two ejectments but -discontinued them before trial, injunc5 tion against further action was refused. "Equity will not interfere
until the right has been satisfactorily established at law." Contra,
bad faith being found by the court, Thompson's Appeal, 107 Pa, St. 5590
And see Shevalier v. Stephenson, 92 Nebr, 675, 139 N. W. 233,
10

The common law rule regarding the effect of a judgment in ejectment was a product of the fiction in which the real plaintiff set up
an imaginary lease to an imaginary lessee in whose name the actionr was
brought,
In a second action he substituted Richard Roe for John Doe
and then, taking the fictions seriously, the court held that this was
15 an action between different parties and the former judgment was not
conclusive. Freeman says that even at common law the prior judgment
was admissible in evidence and that, when the fictions were abolished,
the general rule of res judicata became applicable, unless by statute
a contrary rule was established, e, g. allowing two actions.
Judgments
20 (5th ed,) @ 860, 865. Not infrequently timid legislatures have made
their reform of the incomplete sort which preserves a second trial as
of right.
25

GRAY v. COAN
1873.

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Supreme Court of Iowa.

36 Iowas 296.

[Code action to recover possession of lando Equitable answer


and cross-petition, alleges that defendant has title to the land in
dispute, that plaintiff has brought several similar actions in the
name of his wife to recover the property, all of whichh1ave been
decided against him, but has received a conveyance and is prosecuting
this suit upon the same chain of title for the purpose of harassing
defendant and beclouding his title,
and that plaintiff is insolvent
and the costs of suit can not be collected from him. The cross-petition
prays that title be quieted in defendant and plaintiff be enjoined from
prosecuting any action to recover the property and from making any conveyance thereof. At the hearing, plaintiff dismissed his petition but
the trial continued on the cross petition and a decree was rendered for
defendant.
Plaintiff appeals ?
BECK, C. J. -- Ckfter stating the facts] He [defendant) shows
that he has a good defense at law, The former judgments in his favor,
according to his own showing, would bar recovery in this case, Rev.
90 3582, 3583. CThe statute provides, inter alia, "Judgments in proceedings of this nature are as conclusive as those in actions relating
to personal property,
We do not understand that equity will interfere in order to restrain causeless and vexatious litigation even when
prosecuted by irresponsible parties,
To prevent a multiplicity of suits equity will interpose its authority, but this rule is not to be understood as applying to the case of

714
the repetition of a suit, certainly not when the judgment rendered
in one action will bar the other actions brought to enforce the same
rights.
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After the title to land has been settled by an action of ejectment


and the rights of the parties determined thereby chancery will restrain
the prosecution of subsequent actions of the same character. But its
authority is exercised on the ground that the rights of the parties
have been determined by the judgment at law which is not conclusive and
does not bar other actions. But the reason of this rule having no
existenoe under our statutes governing actions to recover lands, the
a.tion of ejectment being here unknown, the rule itself can not be
applied and parties thereunder be here restrained frQm the prosecution
of actions which are barred by former judgments. We are, therefore,
of the opinion that defendant's cross-petition presented no case of
equitable cognizance.
Reversed.
BENEDICT v. HALL MANUFACTURING CO.

20
1931..

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Supreme Court of Towa.

211 Ia. 1312.

GRIMM, J. -- In May, 1929, the appellee (plaintiff) filed his action


at law against the appellant (defendant) to recover $180,000 for royalties under a contract with the appellant's assignor, J. S. Hall. The
petition-also seeks to recover for alleged profits claimed to be due the
appellee from the,manufacture of patented pulley blocks and for damages
for alleged fraud on the part of the appellant in manufacturing and selling a different pulley block from that described in the appellee's contract with the appellant.
The appellant answered said petition, and also filed a counterclaim, alleging that the appellee's petition was not brought in good
faith, but for the purpose of injuring the appellant in its business;
that said suit was one of a long series of suits brought by the appellee
against the appellant on the same cause of action; that the issues between
the appellee and appellant have already been adjudicated by the court;
that the appellant is a manufacturing corporation, doing business in
various parts of the United States and Canada, largely through advertising, solicitors, and traveling salesmen, and its business depends upon
the good will and confidence of the purchasers; and that, by reason of
the appellee's suit and his threat to renew said suit and to continue
to bring like suits against the appellant, this appellant has suffered
and will suffer irreparable injury. Said cross-petition asks that the
appellee be restrained from further bringing or prosecuting his action
against the appellant upon said same cause of action.
The appellee dismissed his petition, and filed an answer to the
counterclaim, denying each and every allegation thereof, and alleging
that, by reason of the fraud and deceit practiced by the Hall Manufacturing Company, he had been prevented in his previous attempts from
having a fair trial; that$ by reason of the alleged fraud of the appellant, the appellee was prevented from discovering the true facts concerning the relationship of the appellee and the appellant; and that
the appellant still owes the appellee royalties on his patented deViceo

715
Attached to the appellant's cross-petition are 45 exhibits, which
are, in the main, petitions of the appellee against the appellant,
or appellant's assignor, J. S. Hall, amendments thereto, applications
for the production of booksand papers, etc.
5
In order to adequately describe the course of this litigation, it
becomes necessary to refer to these pleadings somewhat in detail.
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Exhibit 1 is a petition in equity, filed in the Jones County,


Iowa, district court in March, 1915, by the plaintiff against the defendant herein. This petition sets out a cause of action on a contract
dated January 1, 1909, between J. S. Hall, the appellant's assignor,
and the plaintiff herein, which said contract is the basis for the suit
brought by the plaintiff herein in May, 1929. Exhibits 2 and 3 are
amendments to this petition. Exhibit 4 is an application for the production of books and papers. Exhibits 5, 6, 7 and 8 are amendmentso
Shortly after September, 1915, the said cause of action was dismissed by the plaintiff. On September 14, 1917, the plaintiff commenced another action for royalties, damages, and profits, based upon
the same cause of action as in the former suit. After the filing of
various pleadings and motions, this case was dismissed by the plaintiff.
In the meantime, on Noveiiber 19, 1914, plaintiff brought a suit at law
against Jo S. Hall, who was then. president and managing owner of the
Hall Manufacturing Company herein, based upon the same cause of action.
Petitions for the production of books and papers were filed, and various amentments were filed, and thereafter the petition was dismissed
by the pla ntiff.
OnNcp mber 19, 1914, plaintiff brought a suit in equity against
the said J .,S. Hall, based upon the same cause of action. This the
plaintiff ubsequently dismissed.
On February 16, 1915, plaintiff commenced an action in equity
against HaI1, president of the Hall Manufacturing Company, on the
same cause of action. In March.of the same year, an amendment was
filed. In September, two amendments were filed. In October, the
third ambidment was filed. Various other pleadings were filed by
either side, including an application for the production of books.
and papers, which was granted. Finally, sometime after May, 1917,
the pleadings were perfected, and the cause was about to be tried,
when the,plaintiff again dismissed his action.
On May 26, 1922, plaintiff brought another suit against the Hall
Manufacturing Company, jat law. Various amendments were filed, books
and papers were presenteqby the defendant for inspection by the plaintiff, and finally the trial court sustained a motion by the defendant
company to strike a portion of the petition as amended. From this an
appeal was taken, and ths court sustained the lower court. See
Benedict v. Hall, 201 Iowa 488.
In January, 1927,,KBenediet filed another amendment, and finally,
on March 23, 1928, the trial court, after a full and complete trial,
determined the cause in favor of the plaintiff and against the defendant in the sum of $391.51. The defendant had previously, in open
court, offered to confess judgment for $750. This judgment was satisfied and discharged.

716

Then followed the petition in this case, -followed by the defendant's counterclaim and the dismissal of plaintiffvs petitiono The
plaintiff then filed an answer to defendant's counterclaim, and the
cause was transferred to equity. The prayer of the counterclaim is
for an injunction restraining the plaintiff "from prosecuting the
cause of action now pending * * * based upon the same cause of action
set out in'the cause submitted to this court and decided on March 23,
1928." As previously stated, the trial court denied the injunction,.
and the defendant appeals.

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The appellee has filed an amended abstract, but has filed no


argument. It is claimed that, during this long continued litigation,
all of which aas its foundation in a contract dated January 1, 1909,
approximately 50 lawyers have been employed, more than 40 of whom
have appeared of record in the various actions. This litigation has
been pending in its various forms for more than 16 years0 It was
started in Jones County, Iowa, and unless checked, bids fair to rival
the now internationally famous Jones County Calf Case.

20

While the plaintiff has no petition on file at this time, at


least so far as this record shows, nevertheless it clearly appears
that it is the purpose and intention of the plaint;iff to bring another
suit or suits against the defendant upon the same old cause of action0

25

The defendant is a manufacturing corporation, doing a business


approximating one-half million dollars a yearn Its business success
depends largely upon the good will of its customers and the confidence
of its business associateso It is without contradiction in the record
that the bringing of suits for large amounts of money, as in this case,
for $180,000, very seriously impairs the credit of corporations, and
that this suit has impaired the appellant's credit to such an extent
that it has at various times been unable to buy as advantageously in
the market, as if not harassed by this lawsuit; that the appellant has,
by reason of this litigation, been unable to buy the quantity of materials it could otherwise buy; and that the fact of the pending litigation
has given to the appellant's competitors an argument that has 'been presented to the appellant's customers, seriously interfering with the
appellant's business0

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It clearly appears that there is no adequate and complete legal


remedy available to the defendant for the loss of confidence and resulting loss of trade to the defendant's business. The business of the defendant is carried on in a large territory, and it is practically impossible for the defendant to meet the arguments of competitors based
upon pending litigation, and otherwise protect against the effect of
the litigation. The testimony shows that customers are frightened by
this litigation, because they fear the concern is in failing financial
condition, and that, consequently, the defendant's guaranty will not
long continue good, and, moreover, that replacements will be hard to
obtain if the defendant is thrown into bankruptcy.
The record abounds in testimony in reference to the manner in which
the defendant company has been harassed in its business transactions,
both with its banks, With its wholesale dreditors, and with its customers,
both wholesale and retail. It very plainly appears that there is no
way in which the defendant can be properly and adequately compensated

.L.

in law for these large and wide-flung damages, and that, if the defeLda
is to have justice in the premises, it mUst come by way of equitable
reliefo The mere fact that the adjudication of 1928 may be pleaded
to any subsequent action is not a sufficient answer. The vdholesale
5 creditors, the bankers, and all of the defendant's customers, wholesale and retail, cannot be made to understand that a suit for $180,000
damages maylbe completely met by a plea of former adjudication.
To
them, the suit for $180,000 is a real, vital threat to the financial
responsibility of the defendant and to the prospects of its continuing
10 sudcessfully in business. On this account, the defendant has already
lost large sums of money, and if the plaintiff is permitted to continue
this .litigation, as he threatens to do, it very clearly appears that
the defendant will suffer other and additional amounts. It must be
borne in mind that there is no essential difference between these var15 ious suite which have already been brought, and which have been from
time to time, dismissed by the plaintiff9 and they are all essentially
similar to the suit which was finally determined by the district court
of Linn County, Iowa, in 1928.
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We think it clearly appears from the record in this case that much
of this litigation has been brought in bad faith, and that any subse-,
quent litigation which may be brought by the plaintiff against the defendant, such as he threatens to bring, based upon the same cause of
action, will be brought in bad faith. There is not even an attempt ono,
the part of the plaintiff to explain or excuse this multiplicity of
suits on the same cause of action. True, he claims that he has not been
successful in his suits because of alleged fraud on the part of the
defendant company and on the part of J. S. Hall, now deceased, former
president and general manager of the Hall Manufacturing Companyo The
courts have been open to the plaintiff at all times during these-16
years. He has had his day in court. He has himself voluntarily dismissed several petitions, each based on the same cause of action, and
finally he has had an adjudication in his favor by the judgment of
March 23, 1.928.. From this judgment there was no appeal, and the judg
ment has been paid.
He still
threatens to bring another or other suits
of the same kind, based upon the same cause of action; and it clearly
appears that, unless he is enjoined, he will do so, to the great and
irreparable injury of the defendant0
The prayer for an injunction contained in the defendant s crossbill has been known in some jurisdictions as a bill
of peace0
In 2
Story's Equity Jurisprudence (14th ed.), Section 1179, there appear's
the following text. "Another class of cases to which bills of pease
are now ordinarily applied, is where the plaintiff has after repeated
and satisfactory trials established his right at law, and yet is in
danger of further litigation and obstruction to his right from new
attempts to'b atrokert it0 Under such circumstances Courts of Eqt.y
will interfere and grant a perpetual injunction to quiet the possession
of the plaintiff and to suppress future litigation of the right."

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55

In 4 Pomeroy's Equity Jurisprudence (4th ed.), Section 1371, there


is found the following; "There are, however, special circumstances in
which a resort to the injunctive jurisdiction may still
be necessary.
in order toprevent a failure of justice. * * * In short, the jurisdiction must sometimes be exercised to prevent a multiplicity of action
or partial investigations which would work injustice."

A very few of the earlier cases in this state seem somewhat out
of harmony with this doctrine, but, upon close examination, it will be
found that the said cases turned on peculiar facts.
5

10

In Gray v. Coan, 36 Iowa 296, the defendant was shown to have had
a good defense at law, and there was no claim made of equitable reasons
why the plaintiff should be enjoined. There was neither allegation nor
proof that the remedy available to the defendant at law was not plain,
speedy, and adequtate, In other words, there was no claim or proof that
further litigation would. result in damages to the defendant of an irreparable character, notwithstanding that he had a complete defense to
the action. * * *

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20

In Foltz v. St. Louis S. F, R. Co.,, 8 C, C. A, 635 (60 Fed, 316)


which was an action to enjoin an action for ejectment, the court said
"In Preteca v. Land Grant Co., 4 U0 S. Appo 327, 330, 1 C. C A,
607, 50 Fed. 674, Judge Caldwell, in delivering the opinion of this
court, said.: It may be true that the plaintiff had a remedy at law,
but "it is not enough that there is a remedy at law; it must be plain
and adequate, or, in other words, as practical and as efficient to
the ends of justice and its prompt administration as the remedy in
equity."' Boyce's Ex'ra. v. Grundy, 3 Pet. 210, 215 Oelrichs v.
Spain, 15 Wall, 211, 268," ***

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Numerous other authorities might be cited. As has frequently


been stated in the decisions, this power of the equity court will only
be exercised with great caution, and only for very substantial reasons.
We think the appellant has brought itself clearly within the rule. The
history of this litigation presents a novel situation. There is in the
record no satisfactory excuse for the bringing and dismissing of so
many suits. The whole proceeding smacks very strongly of bad faith
on the part of the plaintiff0 The threat of the plaintiff to bring
another or other suits upon the same cause of action, notwithstanding
a former adjudication, and notwithstanding the numerous suits already
filed and dismissed by the plaintiff, shows bad. faith on the part of
the plaintiff.
Upon the facts in this particular case, we think the defendant
is entitled to the injunction asked in the prayer of the cross-petition,
and the cause is accordingly remanded to the trial court for an injunction in harmony with this opinion.--Reversed.

NOTE
Is it clear in the principal case that the prior adjudication in
favor of Benedict should. be regarded as a bar to a subsequent suit?

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55

Several cases have allowed injunctions against relitigation of


claims already decided in actions between the same parties to be without foundation: Lyons v. Importers' and Traders' Nat. Bank', 214 Pa,
428 (six garnishment orders sued out in succession, prior decision having established that funds in question were not subject to garnishment);
Seiver v. Union Paco. R. R Co., 68 Neb, 91 (three successive garnishments brought to reach wages held in first garnishment proceeding to be

719
exempt from garnishment); Shevalier v. Stephenson, 92 Neb. 675 (decision adverse to claimant in will contest, followed by two actions that
were dismissed when ready for trial and a third now pending); Moore v.
Harkins, 179 N. C. 167 (action to collect alleged debt decided adverse5 ly to claimant in two prior actions, decisions being affirmed by Supreme
Court on appeal); O'Haire v. Burnes, 45 Colo, 432 (injunction granted
against suit in Iowa on claim already held in two Colorado actions to
be unfounded, the expense and inconvenience of defending in a foreign
state being emphasized); Burdick v. Burdick, 148 Wash. 15 (injunction
10 granted against relitigation of claim already decided adversely to claimant with stateient that injunction would have been denied if there had
been "any showing whatever" that the new action "possessed even a little
merit").
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In Plews v. Burrage, 266 Fed. 347, an injunction was denied against


an action on a promissory note, in spite of the equity plaintiff's claim
that the issues had already been decided in his favor after a trial lasting 135 days and costing him over $20,000 in master's fees and stenographers' bills. The court refused to predict the stage or the form in
which a defense of res judicata could be raised in the second action
which was then pending between the parties in a federal district court,
but pointed to the trial judge's discretion in determining the order in
whith the evidence would be introduced and the issues determined. Eventually, after lengthy pleadings, it was held in the second action that
res judicata was not available as a defense since the issues involved
in the two law actions were not the same. Plews v. Burrage, 274 Fedi881

Compare with Plews v. Burrage the strong assertion in a later federal case of the power of a court of equity to "preserve the fruits and
30 advantages" of a decree previously rendered by the court in an equity
case involving the same issues. Toucey v. N, Y. Life Ins, Co., 102 F,(2d)
16. An even stronger statement is found in Mendel v. Berwyn Estates,
109 N. J. Eq0 11,
35

Can an injunction be awarded against prosecution of a pending actia


or the start of a new action, on a theory of specific performance of a
contract not to sue, made in the course of a settlement between the parties? Moers v. Moers, 229 N, Y. 294; Bomeister v, Forster, 154 N, Y. 229,

40

NORFOLK & NEW BRUNSWICK HOSIERY CO. v. ARNOLD


1894,
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New York Court of Appeals,

143 N. Y, 265

The plaintiff was under written contract, dated April 10, 1882,
to pay the defendant royalties for the use of certain patented inventions at the rate of $500 monthly and the aggregate not less than
$12,000 per annum, It paid the royalties for several years, and
then, claiming to have discovered that it was induced to enter into
the contract by fraud, it refused to make further payments. Then
the defendant, in the year 1891, commenced in the Supreme Court three
successive actions to recover instalmens of royalties which fell
due at different times, The plaintiff lalleged in defense of these
actions the fraud, and prayed judgment that the contract be declared
void on account thereof and cancelled. The three actions were consolidated by order of the court, and the consolidated action was tried

720
and resulted in a judgment for Mrs. Arnold for upwards of $19,000.
From that judgment the hosiery company appealed to the General Termo
Then Mrs. Arnold commenced another action in the New York Common
Pleas to recover royalties amounting to $23,000, and the same defense
5 was interposed as to the prior actions. In her complaint Mrs. Arnold
alleged the recovery in the consolidated action for the purpose of
showing that the hosiery company was estopped thereby. It was the
intention of Mrs. Arnold also to commence successive actions, as installments of royalties fell due pending the appeal of the hosiery
10 company to the General Term and to this court. The hosiery company
gave an undertaking upon its appeal from the judgment securing the
judgment and staying execution thereon; and it also, for the purpose
of preventing an attachment of its property in the Common Pleas,
gave a bond in the penalty of $30,000 to secure the payment of any
15 judgment which might be recovered in that action. Thereafter it
commenced this action, alleging the foregoing and other facts, and
prayed for an injunction restraining the defendant, pending its
appeals, from prosecuting the action pending in the Common Pleas, and
from bringing other actions for accruing royalties. The plaintiff
20 then made a motion for a preliminary injunction'during the pendency
of this action, restraining the defendant as prayed in the complaint,
which was granted. Upon appeal by the defendant to the General Term
from the order granting the injunction, the order was affirmed on
condition that the plaintiff should give to the defendant a bond for
25 $50,000, to pay any judgment which should be recovered in the Common
Pleas, and also all royalties which should accrue until the final decision of the appeal to this court from the judgment in the consolidated
action, and should also stipulate that in case that judgment should
be affirmed in this court, or the appeal therefrom should be dismissed,
30 judgment in favor of Mrs. Arnold in the Common Pleas action might forthwith be entered for her, and that no defense should be interposed to
any action to be brought by her to recover royalties to fall dueo
From the order of the General Term the defendant has appealed to this
court.
35
EARL, J. * * * The jurtsdiction of a court of equity by action
to restrain proceedings in actions pending in courts of law should be
sparingly exercised, and only when other remedies are inadequate and
the equities invoking its jurisdiction are apparent and strong.
40 There is no hard and fast rule about it, and every case must depend
largely upon its own circumstances. (Pomeroy's Eq. Jur- 1371; Hart
v. Mayor of Albany, 3 Paige Ch. 381; Erie Railway Co. v. Ramsey, 45
N4 Y. 637; Third Ave. R. Ro Co. v. The Mayor of N. Y., 54 id. 159;
Schuehle v. Reiman, 86 id. 270)
45
The purpose of this action is to compel the settlement of the
controversy between these parties in the one action, and thus to prevent multiplicity of actions, and that is a purpose usually favored
by courts of equity.
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55

The plaintiff was without other adequate relief, and even if it


might from the Common Pleas probably obtain a stay of the action
there pending, no court of law could stay the commencement of successive actions and thus the piling up of unnecessary costs. Under such
circumstances we think it was a wise exercise of its jurisdiction for
the court in this action to grant the injunction upon terms adequate

721

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for the defendant's protection. She had ample security for the payment .of her royalties to an amount exceeding $100,000, and a stipulation which will end all litigation in case of the affirmance of her
judgment, or the dismissal of the appeal. Thus, all her rights and
interests are fully protected, and she should not be permitted to
harass and oppress her adversary with unnecessary litigation. ***
The case of Eldredge v. Hill ( 2 Johns. Ch, 281) must not be given
too wide a scope as authority. There the purpose of the equitable
action was to restrain the commencement of successive actions to recover damages for a nuisance. There the plaintiff could have prevented
the successive suits by abating the nuisance, and that he could have
done without any considerable loss or damage to himself, and hence the
resort to the equitable action was unnecessary. Here the plaintiff
could. do nothing to prevent the multiplication of suits, and, bound
hand and foot by the estoppel of the first judgment, it was at the
mercy of the defendant, except for such relief as it could get in a
court of equity by such an action as this.
Therefore, as the court had jurisdiction to grant the injunction,
its discretion is not reviewable here, and the appeal must be dismissed, with costs, * * *

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NOTE
D had installed a soda fountain in P's store, the price of which
was payable in instalments, D sued for instalments then due. P alleged
and attempted to prove breach of contract by D,
D recovered judgment
from which P appealed. D brought another action to recover another instalment. P then sued for injunction. The court tried the issues,
found breach of contract by D, and enjoined the prosecution of the two
actions already pending or the commencement of other actions. The
Appellate Division limited the injunction to prosecution of the second
action or commencement of further actions until the final decision of
the first action. "We do not find any authority for restraining an
action at law in which all the issues involved may be fully determined
and relegating those issues to a suit ir equity." Fraley & Carey Co.
v. Delmont, 110 App. Div, 468. Similarly, Kansas City Breweries Co.
v. :Markowitz, 203 Mo. App, 390, In Third Avenue Railroad Co. v. N. Y.
54 N, Y. 159 an injunction was awarded against prosecution of more
than one of 77 actions for violation of a city ordinance, alleged to
be void, until one action should be decided.
Defendant brings 18 separate actions, all filed on the same day,
in a justice court, the amount sued for in each case being within the
jurisdiction of the justice court, They all relate to a single cause
of action, so that a judgment in one action will preclude further suit
on the other 17. Is there any basis for resort to equity? Pioneer
Truck Co. v. Clark, 44 Cal. App, 477, holds that the equity plaintiff
has an adequate remedy through plea in abatement to all but one of the
actions, followed by plea in bar after judgment in the one action.
D leased to P for a term of two years a building adjoining one
occupied by D0 A heater for both buildings was located in the leased
building, and the lease provided that P should heat the adjoining premises of D, D contributing two thirds of the costo6,fuel. D brought

722
fourteen actions in the Municipal Court under the "small claims" procedure. In each case D sought recovery for one week's breach of the
contract to supply heat, the amount claimed in each ease being $35, the
maximum for which a "small claims" action could be brought. Six of
5 the actions were brought at one time, counting on breaches for the six
preceding weeks. On other occasions, three actions and two actions
were commenced simultaneouslyo D recovered judgment in the first action,
but failed in the second. P then brought this suit to enjoin the actions "and to have the cases disposed of by consolidation or otherwise,"
10 and to rec6ver damages caused by the multiplicity of suitso The master
found that bringing the several small claims "is unnecessarily annoying
to the defendant * * * and serves no useful purpose." Bill dismissed. "It does not appear that an adjudication of one of the claims
in favor of either party would settle the issues of the other claims.
15 * * * If he has exercised and continues to enforce strictly legal
rights in an unconscionable manner, the remedies of the plaintiff by
joint trial, consolidation, and limitation of costs are sufficient
protection to the plaintiff." McLaughlin v. Levenbaum, 248 Mass. 170.
20

25

P holds an insurance policy issued by D providing disability benefits. P claimed total disability and received payments for twenty
two months, when D refused further payment. P files bill alleging
disability "will continue for a long time in the future, the precise
length and continuance of which she is unable to state," asserting inadequacy of legal remedy because it would involve a multiplicity of
suits, and praying for specific performance of the contract "requiring
D to make payments of $40 per week so long as her total disability continues." Gephardt v. Metropolitan Life Ins. Co., 213 Ia0 354.

30
PACIFIC MUTUAL LIFE INS. CO. v. PARKER
1934.

35

40

45

Circuit Court of Appeals, 4th Cir

71 F(2) 872o

[Parker holds two insurance policies issued by the Pacific Co.,


which provide disability benefits aggregating $500 per month in
case.of total disability. Claiming such disability, Parker received
payments on the policies for five years0 The company then stopped
payment, asserting that the policies were obtained by fraud. Parker
brought four actions in a South Carolina court, each action claiming
payment for one month under both policies. Although the parties were
of diverse citizenship, these suits were not removable to the federal
court for want of the jurisdictional amount in controversy. The company filed this bill in the District Court for the Western District
of South Carolina, alleging the foregoing facts, charging fraud in
defendant's application for the insurance and praying cancellation
of the policies and injunction against prosecution of the actions.
From an order dissolving a temporary restraining order and refusing
an injunction, complainant appeals.]

50

55

PARKER, Circuit Judge. * * * We agree with appellant that the


case involves the amount requisite to federal jurisdiction 0 What is
asked by the bill is not merely that prosecution of the stits which
have been instituted be restrained, but also that the policies be
canceled and surrendered, As one of the policies provides for the
payment of $5,000 in case of acidental death, and as the monthly payments for disability amount to $500'per month, which under the terms

723
of the policies is to continue throughout the life of the insured,
there would seem to be no question as to more than $3,000 being involved. But we agree with the learned judge below that the appellant
has an adequate remedy at law for the matters of which it complains,
5 and that the injunction was properly denied for that reason0 Not
only.is the remedy at law adequate, but it appears that appellant
has availed itself of this remedy by pleading as a defense to the actions which have been instituted against it the fraudulent representations and concealments in the application which it has alleged in
10 its bill. WAhen the issue thus raised is determined in any one of
these actions, it will constitute an estoppel as between the parties
which can be availed of in all of the others.
Thus, without multi.
plicity of suits, the remedy which plaintiff seeks may be obtained
without difficulty in any one of the law actions pending, and the
15 trial by jury guaranteed by the Constitution (Const. Amend. 7) will
not be impaired by unnecessary resort to equity0

20

25

30

35

40

45

50

55

The general rule, which has been long established, is that,


after the right to recover on a policy of insurance has matured,
equity will not ordinarily take jurisdiction of a suit to can'el
it on the ground of fraud, and this for the reason that the company
has an adequate remedy at law in its right to defend on that ground
any action which may be instituted on the policy. * * *
Nor is there ground for invoking equitable jurisdiction to
avoid multiplicity of suits. Without going.into the troublesome
question.as to when jurisdiction in equity to avoid multiplicity
ofsuits exists and the various limitations upon that doctrine, it is
sufficient to sby that it can have no application where the only
multiplicity apprehended is that of suits for successive payments
due under a contract attacked on the ground of fraud; for the invalidity of the contract on this ground can be determined in any
one of the suits, and the determination of the issue thus presented
will be binding upon the parties in the others upon the principle
of res adjudicata when pleaded and relied on thereo As to estoppel
by judgment first obtained on co-pending actions, see Kline vo Burke
Construction Cob, 260 U. 8. 226, 230, 43 S. Cto 79, 67 L. Ed. 226,
24 A. L. R. 1077. The practical effect of a contrary holding would
be to give equity complete jurisdiction of all suits on health and
disability insurance policies, and would deprive the parties of the
right to trial by jury as guaranteed in the Federal Constitution
and the constitutions of practically all of the states0
As said by the Supreme Court in Matthews v. Rodgers, 284 U. S.
521, 529, 52 S. Cto 217, 221, 76 L. Edo 447: "Tn general, the jurisdiction of equity to avoid multiplicity of suits at law is restricted
to cases where there would otherwise be some necessity for the maintenance of numerous suits between the same parties, involving the
sane issues of law or fact." And as pointed out by Professor Pomeroy
(4th Ed.) vol. 1, 9 254, a court of equity will not interfere to prevent the bringing of 4umerous actions at law by a single defendant,
"unless its interference is clearly necessary to promote the ends of
justice, and to shield the plaintiff from a litigationwhich is evidently vexatious." Equitable jurisdiction in such cases is but an
extension of the jurisdiction tq grant bills of peace or quiet title,
and the legal right of the person invoking such jurisdiction should be

724
established in his favor by the result of at least one action by law,
New York Life Ins? Co. v. Marshall (C. C. A. 5th) 23 F.(2d) 225, 226.
To quote again-Pr4 m Pr-ofessor Pomeroy: "It should be carefully observed that a court of equity does not interfere in this class of cases
5 to restrain absolutely and completely any and all trial and decision
of the questions presented by the pending actions at law; it only
intervenes to prevent the repeated or numerous trials, and to bring
the whole within the scope and effect of one judicial investigation
and decision." As a trial in any of the pending actions at law of
10 the defense asserted by the company will to all intents and purposes
finally determine as between the parties the question of the validity
of the policies, in so far as they relate to disability insurance,
and as the provision as to accidental death has become incontestable,
there is no occasion for equity to assert jurisdiction, to avoid
15 multiplicity of suits or for other reason. In the trial of one action
at law, the company can obtain all the relief that is necessary for
its protection.
20

For the reasons stated, the order appealed from will be affirmed;
and, as we are of opinion that the bill is without equity. the court
below will enter a further order dismissing it.
Affirmed.

25

NOTE
Cancellation of contracts will be considered in the next chapter.

30

35

40

Section 265 of the Judicial Code of the United States (28 U.S.C.A.,
8 379) which reads: "The writ of injunction shall not be granted by any
court of the United States to stay proceedings in any court of a State,
except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy." Was not the principal case square12 within this prohibition? By the letter, clearly yes. But before
you rush to final conclusions you must study the maze of exegetic decisions which, in the course of a century and a half, have been ddposited
upon the words of the fathers. They are gathered in forty pages of fine
print in the note to this section in U. S. C. A. The Supreme Court decisions are analyzed by Durfee and Sloss, "Federal Injunction against
Proceedings in State Courts: the Life History of a Statute," t0 Mich.
L. Rev. 1145, and by Taylor and Willis, nThe Power of Federal Courts
to Enjoin Proceedings in State Courts*, 42 Yale L. Jo 1169. Toucey v.
N. Y, Life Ins. Co., 102 F(2d) 16 is of interest in this connection.

45
MAYTAG 00. v. MEADOWS MFG. CO.
1929.
50

55

Circuit Court of Appeals, 7th Cir. 35 F(2) 403.

Csuit by Maytag Co. against Meadows Co. in the Southern tistriot


of Illinois for injunction and damages charging that defendant copied
plaintiff's washing machine and passed off its product as plainti~f's
manufacture. At final hearing a decree was rendered in favor of defendant from which plaintiff appealed. This cause was No. 4170.)

725
LINDLEY, District Judge.

After affirming the decree in No. 4170

The appeal in case 3999 arose out of certain proceedings in and during
the pendency of the trial in cause No. 4170. Appellant filed in the
United States District Court for the Western District of Missouri
5

against Howard Finn and the Electrical Equipment Company, parties en

gaged in the sale and distribution of appellee's machine, a bill for


injunction, substantially the same as the bill previously filed in
cause No. 4170. It contained in addition only specific charges of
misrepresentations and slander. The prayer for relief was the same
10 as that in the District Court in Illinois, except for an additional
paragraph wherein appellant sought to enjoin the two parties named
from making any false, wrongful, or malicious statements concerning
appellant and its product. Appellee thereupon filed in the original
suit in Illinois its application to restrain appellant from prosecut15 ing the suit in the Western District of Missouri, and an order was
entered restraining appellant from commencing or prosecuting any suits
against dealers, distributors, or customers of appellee for damages
arising out of the sale of appellee's machine, or any suits seeking
to enjoin the sale of appellee's said machine or the proper advertis20 ing thereof, or in any waise interfering with the sale of said machine
upon the ground alone of its alleged "resemblance or similarity in
appearance, or principle to the Maytag Gyrafoam Washer-" Thereafter
a temporary injunction was entered commanding appellant "not to commence or prosecute any suit of any kind or character against any
25 dealer, distributor or customer of The Meadows Manufacturing Company
which tenders as an issue therein the right of the Meadows Manufacturing Company to manufacture, or of such dealer, distributor or customer
to purchase, advertise or sell in any lawful manner the product of
The Meadows Manufacturing Company known as its Meadows Model B washing
30 machine because of the alleged similarity in appearance between the
Meadows Model H washing machine, as heretofore manufactured by The
Meadows Manufacturing Company and the washing machines manufactured
by the Maytag Company." Obviously the injunction did not forbid any
suit for the relief prayed in paragraph E in the bill filed in
35

40

45

Missouri; that is, from making any false, wrongful, or malicious

statements concerning appellant and its product. Appellant may


still prosecute any suit for any malicious slander or libel or for
any relief except such as may be identical with that prayed in the
original suit filed in the District Court in Illinois. The only
question arising upon this appeal is whether the trial court rightfully enjoined appellant from suing the distributors and dealers of
appellee's machines for the same relief for which it was then suing
appellee in the Illinois court.
Appellee made showing that other suits of similar character

would be filed in various jurisdictions; that the natural effect thereof is to interfere with the sale of appellee's products; that appellant
is a powerful corporation, with an income of many millions of dollars
per year, with agencies and branches throughout the country, and that
50

the purpose of the threatened multiplicitous litigation is to cause

the expense thereof to be so great as to destroy appellee and its business; that the suit pending in Illinois is against the manufacturer,
involving the right to manufacture and sell the washing machines in
question and for damages and profits, and that no other suits in any
55

other jurisdiction are necessary to protect the interests of appellant.

726
The facts amply support the order appealed from. The court was
justified in restraining the bringing of a multiplicity of suits which
might result in-irreparable injury to the appellee. Public policy
favors the rule that litigation for the purpose of ascertaining and
5 sustaining alleged rights of a patentee or manufacturer should be
brought against the alleged wrongful manufacturer, and that suits
against the latter's customers for the same relief should be restrained
until the original suit shall be determined. Ide v. Ball Engine Co.
(C. C. ) 31 F. 901; Commercial Acetylene Co. vo Avery Portable Lighting
10 Co., 159 F. 935 (C. C. A. 7) approving the opinion of Judge Quarles in
the District Court in 152 F. 642; Kessler v. Eldred, 206 U. S. 285 at
page 289, 27 S. Ct. 611, 51 L. Ed. 1065; Berliner Gramophone Co. v.
Seaman, 113 F. 750 (C. C. A. 4).
15

20

25

In the cause in the court in Illinois all the issues restrained in


pending and threatened suits were presented, and the appellant, having
elected its forum for redress of alleged violation of its rights, should
not be allowed to cause the same issues to be raised in subsequent suits
in other jurisdictions at least until after final determination of the
original cause. Marconi Wireless Telegram Co. of America v. Kilbourn
& Clark Mfg. Co. (D. C.) 235 F. 719; Stebler v. Riverside Heights Orange
Grower's Association (D. C.) 211 F. 985. The cases cited by appellant
do not militate against this rule.
Both decrees are affirmed at the court of appellant0
NOTE

30

35

40

45

50

In Commercial Acetylene Co. v. Avery Portable Lighting Co., cited


in the principal case, Judge Quarles said: "While the doctrine of exclusive jurisdiction in the court first obtaining jurisdiction does
not apply to a case where complainant brings independent suits in
several courts involving the same question, it is nevertheless true
that the main issue involving the validity of a patent and the question
of infringement ought to be litigated between the patentee and the
principal infringer in the jurisdiction where such supposed infringement is centered, and, where the first suit brought is against that
principal infringer, such suit is properly regarded as a parent suit
where the leading issues in controversy should, for obvious reasons,
be tried."
See also-Marconi Wireless Telegraph Co. v. Kilbourne & Clark
Mfg. Co., 235 Fed. 719, where an injunction was awarded against suits
in other states against customers of the manufacturer who was alleged
to have infringed a patent, such suits being broughtwhile an equity
action against the manufacturer was pending but was not yet decided.
In Kessler v. Eldred, cited in the principal case, the parent
suit was decided against the patentee before he commenced suit against
customers. The court reserved the question whether the judgment was
technically available as an estoppel in the other suits, but sustained
an injunction.

727
MAYOR of YORK v. PILKINGTON
1737.

Chancery.

1 Atk. 282.

A bill was brought in this court, to quiet the plaintiffs in a


right of fishery in the river Ouse, of which they claimed the sole
fishery for a large tract, against the defendants, who, as it was
suggested by the bill, claimed several rights, either as lords of
5 manors, or occupiers of the adjacent lands, and also for a discovery
and account of the fish they had taken.
The defendants demurred to the bill, as being a matter cognizable
only at law.
10

15

20

HARDWICKE, C. -- Such a bill against so many several trespassers


is improper before a trial at law; a bill may be brought against
tenants by a lord of a manor for incroachments, &c0 , or by tenants
against a lord of a manor as a disturber, to be quieted in the enjoyment of their common; and as in these cases there is one general right
to be established against all, it is a proper bill, nor is it necessary all the commoners should be parties (vide Rudge v. Hopkins, 2 Eq.
Ab. 170, Pl. 27; Poore v. Clark, Post, 2 vol. 515); so likewise-a bill
may be brought by a parson for tythes against parishioners (Brown v.
Vermuden, 1 Cha. Ca. 272), or by parishioners to establish a modus,
for there is a general right and privity between them and consequently
it is proper to institute a suit of this kind. (A bill will not lie
to direct an issue to ascertain boundaries between two parishes,
Parish of St. Luke v. Parish of St. Leonard, 1 Bros Cha. Rep. 40.)

25

30

There is no privity at all in the case, but so many distinct trespassers in this separate fishery; besides the defendants may claim a
right of a different nature, some by prescription, others by particular
grants, and an injunction here would not quiet the possession, for
other persons, not parties to this bill, may likewise claim a right
of fishing.

It is more necessary too in this case, there should be a trial


at Law, for it does not clearly appear, whether there is a right even
35, in the plaintiffs (vide Cressett v. Mytton, 3 Bro. Cha. Rep. 481),
and if it should eventually come out that the corporation of York are
lords of this fishery, thenwould be the proper time to have an injunction to prevent their being disturbed in their possession. His Lordship therefore allowed the demurrer.
40
HARDWICKE, C. -- (On re-argument.) When this case was first
argued, I was of opinion to allow the demurrer, but I have now changed
my opinion.
45

50

Here are two causes of demurrer, one assigned originally, and one
now at the bar, that this is not a proper bill, as it claims a sole
right of fishery against five lords of manors, because they ought to
be considered as distinct trespassers, and that there is no general
right that can be established against them, nor any privity between
the plaintiffs and them.

728
In this respect it does differ from eases that have been cited
of lords and tenants, parsons and parishioners, where there is one
general right, and a privity between the parties. But there are
cases where bills of peace have been brought, though there has been a
5 general right claimed by the plaintiff, and yet no privity between
the plaintiffs, and defendants, nor any general right on the part of
the defendants, and where many more might be concerned than those
brought before the court: such afe bills for duties, as in the case
of the City of London vo Perkins (4 Bro. Paro Ca. 168, 3 Bro. P. C.
10 602, 2nd edo) in the House of Lords, where the city of London brought
only a few persons before the court, who dealt in those things whereof
the duty was claimed, to establish a right to it, and yet all the King's
subjects may be concerned in this right; but because a great number of
actions may be brought, the court suffers such bills, though the defend15 ants might make distinct defenses. and though there was no privity between them and the city

20

25

30

35

I think therefore this bill is proper, and the more,so, because it


appears there are no other persons but the defendants who set up any
claim against the plaintiffs, and it is no objection that they have
separate defenses; but the question ies whether the praintiffs have a
general right to the sole fishery, which extends to all the defendants:
for notwithstanding the general right is tried and established, the
defendants may take advantage of their several exemptions, or distinct
rightso
Another cause of demurrer is, that the plaintiffs have not established their title at law, and have therefore brought their bill improperly to be quieted in possession. Now it is a general rule, thata man shall not come into a court of equity to establish a legal right,
unless he has tried his title at law, if he can; but this is not so
general an objection as always to prevail, for there have been variety
of cases both ways.
Demurrer overruled.
NOTE

40

"Upon what principle two different tenants, of distinct estates,


should be brought hither to hear each other's rights discussed, I cannot imagine." Lord Thurlow, in Bouverie v. Prentice, 1 Bro. C. C. 200,

45

THE COMMON LAW RULES AS TO JOINDER AND CONSOLIDATION

50

55

The common law rules as to joinder of parties and of causes of


action, rules that are presupposed in these and the following equity
cases, have undergone considerable modification in modern practice,
In the 18th and early 19th centuries, when equity bill of peace doctrines were taking shape, they were extremely stricto
The common law rules as to joinder of parties rested essentially
on an anklysia in terns of the substantive rightWsof the parties rather
than the procedural convenience of adjudication in a single suite' (1)
Plaintiffs could join in an action only if their rights were joint,

729
In such cases, on the other hand, they were compelled to join and nonjoinder could be raised by the defendant through a plea in abatement.
Misjoinder of plaintiffs (the inclusion as plaintiffs of persons not
jointly interested in the cause or causes of action) was a serious
5 blunder which could be taken advantage of by the defendant through
demurrer or by motion for nonsuit at the trial, and even by motion in
arrest of judgment. (2) Defendants could be joined if they were jointly or jointly and severally liable on the cause of action in question,
but not if they were severally liable on.causes of action that were
10 analysed as independent. Misjoinder in contract actions could be
attacked by general demurrer or would lead to nonsuit if it was first
revealed at the stage of trial; in tort actions misjoinder had less
serious consequences, the judgment merely being rendered against the
parties that were properly joined.
15
The common law rules as to joinder of causes of action were subject to the fundamental limitation that the causes of action joined
must all be between the sane parties, a limitation that was in substance adopted in the codes of procedure.
Apart &rom this, the main
20 requirement at common law was that they all be brought in the same form
of action, with the qualification that trover and case could be joined,
as could debt and detinue, for reasons connected -with th& historical
origins of the writs involved. The result of concentration on the
form of action was to make possible the joinder of causes of action
25 which involved no common questions of law or fact and, on the other
hand, to preclude joinder where a single trial could prevent substantial duplication of effort.
30

35

40

45

50

55

The power of common law courts to consolidate actions for trial


did not materially alter this situation. Consolidation could be ordered
only if the causes of action were capable of joinder for purposes of
pleading. Some extension of this rule was accomplished by Lord Mansfield
through a procedure described as quasi-consolidation, but this depended
on the consent of all the parties involved and was not employed on any
considerable scale. Modernstatutes and rules of court have greatly
extended the power to consolidate for purposes of trial, with wide disoretion in the trial court. Even this device remains subject, however,
to the important limitation that the actions to be consolidated must
all be pending before the same court at the time the order is entered.
While the practice of consolidation has circumvented many surviving
restrictions on joinder of parties and causes of action, it supplies
only a limited solution of the basic problem.
The whole approach of equity to joinder of parties and causes of
action differed radically from that of the common law. With the central object of disposing of related issues in a single proceeding,
equity courts rejected the analysis in terms of substantive right and
required joinder of all persons whose interests would be directly affected by the decree0
In addition, courts of equity evolved a system of
permissive joinder where parties were interested in the subject of the
action or in the relief demanded, a test that was adopted in the codes
of procedure and has had wide influence in reformed practice generally.
Restriction on the undue multiplication of issues was phrased in terms
of multifariousness, a flexible test that left wide room for trial court
discretion. Multifariousness was a ground for demurrer to a bill which
included equitable causes of action whose joinder would cause complication and expense in the trialof -ithe case.

730

10

The principal case and those which follow represent merely one
aspect of the modern problems of joinder and consolidation.
Statutes
and rules of court, examples'of which are referred to below, have
altered the whole approach to this problem, though the equity jurisdiction has by no means disappeared. For general discussion of the problem
see Blume, "A Rational Theory for Joinder-of Causes of Action and Defences", 26 Mich. L. Rev. 1.
DODD v. HARTFORD
1856.. Supreme Court of Connecticut.

15

20

25

25 Conn. 232.

SEYMOUR, J. -- This is an application to the superior court as a


court of chancery, to restrain the defendants from enforcing the collection of certain assessments for the expenses of a sewer.
The petitioners complain that these assessments and the warrants
issued for their collection are illegal and void, and that the petitioners and other persons to the number of three hundred and upwards,
will be compelled to commence separate suits, for the damages they
will suffer if the warrants are executed, and that thus the peace of
the community will be disturbed, and expense and vexation will ensue,
unless an injunction be granted to restrain the city from collecting
the assessments. [Facts were alleged which, if true, would make the
whole tax proceeding voido)
The defendants demur to the petition, and the questions arising
upon the demurrer are reserved for the advice of this court.

30

35

40

45

We are of opinion that the court has no jurisdiction to interpose


by way of injunction as prayed for. No property, right or franchise
held by the petitioners in common is claimed to be affected by the proceedings of the city. The assessments are against the petitioners
severally, not against them jointly. If the warrants are collected,
and any of these parties have occasion to bring suits at law, their
suits must be several and separate; they certainly can not join in an
action at law against the city, or against the collector.
In respect to each of these petitioners, taking his case separately, it is difficult to see why he has not adequate remedy at law. There
is no averment that the real estate of any of the parties has been or
can be levied upon. The warrant authorizes the taking of personal
estate only. No irreparable injury can arise from the levy. If the
proceedings of the common council are irregular and void, as the petitioners claim they are, an action at law will lie to recover all the
damages which shall be sustained by the levy, and the question of the
legality of the assessment will then be tried in its appropriate forum,
a court of law.

50

55

The claim most pressed by the petitioners, is that the court ought
to entertain jurisdiction in order to prevent a multiplicity of suits.
But no one of these petitioners has any interest in the suit which
another of them may be called upon to institute. They can not individually complain that others are compelled to sue, for they have no share in
the expense or vexation of each other's suits.

731
The multiplicity of suits which the petition seeks to avoid, does
not affect injuriously any one of the petitioners. No one of them has
occasion to expect any such multiplicity affecting himself. One suit
is all that any one of them has to fear, and the object of this bill
5 would seem to be to relieve these parties severally from that one suit,
and to consolidate the apprehended litigation. In other words, to enforce a consolidation rule, by means of the extraordinary powers of a
court of chancery. If the assessment were against one person only, it
is not claimed that he could transfer from a court of law to a court
10 of equity, the question of his liability. But how is the condition of
any one of these petitioners the worse, because others are assessed
for the same improvement. It would undoubtedly be convenient to try
the questions relating to these warrants in one comprehensive lawsuit.
But it does not seem to the court that the case presented by the bill
15 is one of such irreparable injury, or of inadequate relief at law, as
to warrant us in taking it away from the legal tribunals.

20

There are also reasons of policy, founded on the necessity of


speedy collection of taxes, which ought to prevent a court of chancery from suspending these proceedings, except upon the clear at
grounds. We therefore advise the superior court that the demurrer
is well taken, and that the petition be dismissed.

25

CARLTON v. NEWMAN
1855.

30

35

40

45

50

55

Supreme Court of Maine. 77 Maine 408, 1 Atl. 194.

Bill in equity by ten inhabitants and taxpayers of school district No. 5, in the town of Weld, against the collector of taxes
to restrain him from collecting a school-district tax.
VIRGIN, J. -- While the defendant admits the facts he denies
th-t equity can enjoin the collection of the pretended tax even
on the assumption that it was assessed without the authority of law
and therefore void; and he contends that the only renedies open to
the plaintiffs and all the other taxpayers on whose polls and estates the tax has been assessed are simply such as the law affords,
viz.: each to defend the action of debt against himself, provided
the collector shall proceed to enforce the collection by such action
under the provisions of R. S., ch. 6, 141; or, in case the collector
shall resort to the more unusual mode, of seizing their individual property under the other statutory provisions for the collection of taxes,
then for each taxpayer whose property shall be taken to bring an action
for damages, or recover back the money when collected; and these remedies are said to be "plain, adequate and complete."
If a tax against an individual be illegal simply by re-son of some
irregularity in its assessment, as for instance on account of overvaluation, or if laid on property which the taxpayer did not own at the time,
he would then have ample remedy therefor by a seasonable application
for an abatement. R. S., ch. 6, H 68, 69.; Gilpatrick v. Sace, 57 Maine,
277. Moreover it is generally hel that a bill to restrain the colledtion of a tax can not be maintained on the sole ground of its illegality.
Greene v. Mumford, 5 R. L. 472; Sherman v. Leonard, 10 R. I. 469, Guest
v. Brookly, 69 N. Y. 506; Loud v. Charlestown, 99 Mass. 208; Whiting

732
vo Boston* 106 Masso 89, 93; Hunnewell v, Charlestown, 106 Mass. 350.
There must be some allegation presenting a case of equity jurisdiction.
Dows v. Chicago, 11 Wall. 108; I:unnewinkle v. Georgetown, 15 Wallo 547;
State R. Ro Tax Cas. 92 U. S 575, 614,
Cases cited 2 Dest. Tax0 676-7.
5 In EUnnewbit v. Charlestown, supra, brought by a single plaintiff, the
court paid: "The question is not affected by the fact that there are
others, whether few or many, who are subjected to a like assessment by
the same proceedings of the city council and who propose to contest
their liability."
10
But we are of opinion that when it appears that an entire schooldistrict tax is illegal because assessed without authority of law,
a bill to enjoin its collectionbrought by all of the taxpayers of the
district jointly on whose polls and astates the tax has been assessed,
15 or by any number thereof on behalf of themselves and all the others
similarly situated, may be sustained upon the ground of the inherent
jurisdiction of equity to interpose for the purpose of preventing
a multiplicity of suits; that although each taxpayer has some legal
remedy, it is grossly inadequate when compared with the comprehensive
20 and complete relief afforded by a single decreeo

25

30

The general doctrine coeval with equity proceedings, asserted in


a multitude of decisions, that in certain cases where parties have
some remedy, equity may interpose and take cognizance for the purpose
of preventing a multiplicity of suits, was declared by Cha. Kent to
be "a favorite object with a court of equity," Brinkerhoff v. Brown,
6 Johns0 Ch. 151; and the number of parties and the multiplicity of
actual or threatened suits, as stated by Comstock, J., sometimes
justify a resort to equity when the subject is not at all of an equitable character and there is no other element of equity jurisdiction.
N.:Y. and No R, R. v. Schuyler, 17 No Y. 608. And yet the precise
extent and limitations of the doctrine are still unsettled3 the deeisions being quite inharmonious even as to its fundamental grounds.
It is said that "bills of peace" were founded upon this ground --

35

40

45

to

quiet unnecessary litigation as to titles and where one person claimed


or defended a right against many or many against oneo Sto, Eq. 9 864.
In these bills originally, whether brought by or in behalf of many
against one, or by one against or on behalf of many, "chancery confined its jurisdiction to cases wherein there was some common interest
in the subject-matter of the controversy, or a common title from which
all their separate claims and all the questions at issue arose; it not
being enough that the claims of each individual being separate and distinct, there was a community of interest merely in the question of
law or fact involved, or in the kind and form of remedy demanded and
But at an
obtained by or against each individual." Pom. Eq. 9 268.
to exjurisdiction
the
and
yield
to
early day the limitations began
tend., * * *

50

55

After an exhaustive examination of the subject-both upon principle and authority, an eminent legal author sums up his conclusions
as follows. "Under the greatest diversity of circumstances and the
greatest variety of claims arising from unauthorized public acts,
private tortious acts, invasion of property rights, violation of
contract obligations, and notwithstanding the positive denials by
some American courts, the weight of authority is simply overwhelming
that the jurisdiction may and should be exercised either on behalf

733
of a numerous body of separate claimants against a single party,. or
on behalf of a single party against a numerous body, although there
is no 'common title,' nor 'community of right' or of 'interest in
the subject-matter,' among these individuals; but where there is
5 and because there is merely a community of interest among them in
the questions of law and fact involved in the general controversy,
or in the kind and form of relief demanded and obtained by or against
each iidividual member of the numerous body. * * * The same overwhelming weight of authority effectually disposes of the rule laid
10 down by some judges as a.test, that equity will never exercise its
jurisdictions to prevent a multiplicity of suits, unless the plaintiff
or each of the plaintiffs, is himself the person vhowould necessarily
and contrary to his own will be exposed to numerous actions or vexatious
litigation. This position is opposed to the whole course of decision
15 in suits of the third and fourth classes from the earliest period down
to the present time." Pom. Eq. 269.
On the merits, it was held that the whole tax proceeding was
void.]
20
Bill sustained.

Collection of tax perpetually enjoined.


NOTE

25
Should a distinction be drawn between attempts of plaintiffs to
consolidate for trial causes of action that cannot be joined in common
law actions, and attempts of a singl d plaintiff to consolidate claims
against several defendants?
30

35

Cases involving joinder of taxpayers in a suit for relief against


the tax are collected in 32 A. L. R. 1266. On the constitutionality
of statutes which deny the injunctive remedy to taxpayers, see 77 A.
L. R. 629. Would a consolidated action be more freely allowed if the
taxpayers sought, not injunctive relief, but restitution of money paid
the tax collecting agency under protest?
STATUTES AND RULES OF COURT ON THE SUBJECT OF JOINDER

40

45

50

55

New York Civil Practice Act (1937), sec. 209: "All persons may
be joined :in one action as plaintiffs, in whom any right to relief in
respect of or arising out of-the same transaction or series of transactions is alleged to exist whether jointly, severally, or in the
alternative, where if such persons brought separate actions any common
question of law or fact would arise; provided that if upon the application of gny party it shall appear that such joinder may embarrass or
delay the trial of the action, the court may order separate trials or
make such other order as may be expedient, and judgment may be given,
for suc Rone or more of the plaintiffs as may be found to be entitled
to relief, for the relief to which he or they may be entitled."
Sec. 211: "All persons may be joined as defendants against whom
the right to any relief is alleged to exist, whether jointly, severally,
or in the alternative; and jpdgment may be given according to their
respective liabilities, against such one or more of the defendants

734
as may be found to be liable upon all of the evidence, without regard to
the party by whom it has been introducedon
5

Sec 212: "It shall not be necessary that each defendant shall be
interested as to all the relief prayed for, or as to every cause of
action included, it any proceeding against him; but the court may make
such order as may appear just to prevent any defendant from being embarrassed or put to expense by being required to attend any new proceedings in which he may have no interest,'

10
]4OTE
The difficulties that have arisen in New York under these proviL5. sions, through the failure to modify the rules as to joinder of causes
of action, are discussed by Clark, Code Pleading, 271-273. The'rules,
of the various codes of procedure on joinder of causes of action.'vere
less artificial than the common law tests which rested on the form.of
action employed, but they introduced a variety of fixed classes *hich
20 operated to restrict joinder to a substantial extento They are dis
cussed by Clark, Code Pleading, a99-3060

25

30

35

40

Federal Rules of Civil Procedure9 Rule 20g (a) "All persons may
join in one action as plaintiffs if they assert any right to relief
jointly, severally, or in the alternative in respect of or arising out
of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will.
arise in the action. All persons may be joined in one action as defend-'
ants if there is asserted against them jointly, severally, or in the
alternative any right to relief in respect of or arising out of the
tse transaction, occurrence, or series of transactions or occurrences
and if any question of law or fact common to all of them will arise
in the action. A plaintiff or defendant need not be interested in obo
taining or defending against all the relief demanded.
Judgment may be
given for on. or more of the plaintiffs according to their respective
rights to relief, and against one or more defendants according to their
respective liabilities.
(b) "The court may make such orders as will prevent a party from
being embarrassed9 delayed, or put to expenso by the inclusion of a
party against ,who: he asserts no claim and who asserts no claim against
him, and may-order separate trials or; make other orders tp prevent delay
or prejudicep'

45
NOTE

50

Federal Rule 18(a) provides for joinder of claims "with multiple


parties" ifthe prbvisions of Rules 19, 20, and 22 are satisfied0 Rule
19 merely requires the joinder of persons having a "joint-interest"
and Rule 2Z is concerned with interpleader (on which more later>.

55

To be distinguished is the provision in Rule .23 of the Federal


Rules, allowing class actions to be 'br ught by plaintiffs or against
defendants "if persons constituting a~class are so numerous as to make
it impracticable to bring them all before the court".
In this situation

735
asuch of them as will fairly insure the adequate representation of all"
may sue or be sued even though the rights involved are "several", provided (among other grounds) "there is a common question of law or fact
affecting the several rights and a common relief is sought".
5
Would the joinder provisions of the New York Civil Practice Act
and The Federal Rules leave any room for the kind of equity jurisdiction
asserted in Carlton v. Newman?
10
HALE v- ALLINSON
1902.

United States Supreme Court.

188 Uo S. 56, 47 L, ed. $80.

15

It is a suit in equity brought by a foreign receiver, in the United


States circuit court for the eastern district of Pennsylvania, to enforce the liability of stockholders, residing in PE-nnsylvania, of the
Northwestern Guaranty Loan Company, a corporation of Minnesota.

20

Demurrers were filed, setting up, among other grounds, that the
receiver appointed under proceedings in Minnesota had no right to sue
in any court of a foreign jurisdiction; also that, even if the receiver
had the right to sue, there was an adequate remedy at law for whatever
rights might exist in the receiver or any other person, and that no'
ground of equitable jurisdiction was stated. The circuit court sustained the demurrer on the ground that the remedy, if any the complainant had, was at law. 102 Fed. 790. The judgment was affirmed by the
circuit court of appeals for the third circuit. 106 Fedo 258. * * *

25

30

PECKHAM, J.

--

* * * Second.

The other ground of demurrer is

that, whatever remedy may exist in favor of the complainant is at


law, and that no case is made which gives a court of equty jurisdiction.
35

It appears from the bill and the record annexed to and forming
part thereof that there were in all somewhere about five hundred
stockholders of the loan company, twenty-three of whom, living in
Minnesota, had been made parties to the Rogers creditors' suit,,
and judgments had -been obtained against them in that suito Forty40 seven of the remainder resided in Pennsylvania and were made parties
to this suit, and the balance lived in different states0 The indebtedness of the corporation was so great that the liability of the stockholders was up to the full amount imposed by the statutes of Minnesota.
The theory of the bill was that the Minnesota decree was conclusive
45 (even upon nonresident stockholders not served with process and not
appearing in that suit) as to the amount of the indebtedness of the
corporation and the amount of its assets, thereby concluding the
parties as to the necessity of a resort to the stockholders' liability in favor of creditors, leaving open the question of the special
50 liability of each particular shareholder, and whether, if once liable,
his liability had ceased, wholly or partly, by reason of fact pertaining to such stockholder. No accounting was asked for, but simply
a judgment against each stockholder for the amount of the par value
of his stock. * * *

55
Cases in sufficient number have been cited to show how divergent
are the decisions on the question of jurisdiction. It is easy o say

736

10

15

20

25

30

35

40

45

50

55

it rests upon the prevention of a multiplicity of suits, but to say


whether a particular case comes within the principle is sometimes a
much more difficult tasko Each cases if not brought directly within
the principle of some prededing case, must, as we think, be decided
upon its own merits and upon a survey of the real and substantial
convenience of all parties, the adequacy of the legal remedy, the
situations of the different pdities, the points to be contested.and
the result which would follow if jurisdiction should be assumed or
denied; these various matters being factors to be taken into consideration upon the question of equitable jurisdiction on this ground,
and whether within reasonable and fair grounds the suit is calculated
to be in truth one which will practically prevent a multiplicity of
litigation, and Will be an actual convenience to all parties, and will
not unreasonably overlook or obstruct the material interests of any.
The single fact that a multiplicity of suits may be prevented by this
assumption of jurisdiction is not in all cases enough to sustain it.
It might be that the exercise of equitable jurisdiction on this ground,
.while preventing a formal multiplicity of suits, would nevertheless be
attended with more and deeper inconvenience to the defendants than would
be compensated for by the.convenience of a single plaintiff; and where
the case is not covered by any controlling precedent the inconvenience
might constitute good ground for denying jurisdiction 6
We are not disposed to deny that jurisdiction on the ground of
preventing a multiplicity of suits may be exercised in many cases in
behalf of a single complainant against a number of defendants, although
there is no common title nor community of right or interest in the
subject-matter among such defendants, but where there is a community
of interest among them in.the questions of law and fact involved in the
general controversy. * * *

The facts surrounding the present case and the reasons for holding
that they do not bring it within the principle of preventing a multiplicity of suits are so well stated in the opinion of McPherson, District
Judge, in this case (102 Fed. 790), that we quote the same. After speaking of the alleged conclusiveness of the Minnesota decree upon the question therein decided, the judge continued:
"Thereafter a different question arose for determination, namely,
can the assessment be lawfully enforced against the individuals charged
therewith? And in this question the interest of each stockholder is
separate and distinct. The bill asserts the conclusiveness of the
Minnesota decree upon the defendants, so far as the necessity for the
assessment and the amount charged against each stockholder are concerned.
Hanoock Nat. Bank v. Farnum, 176 U.oS 0 640, 44 L. ed. 619. Assuming
that position to be sound (and, if I do not so assume it; if these questions are still open for determination, so far as the Pennsylvania stockholders are to be affected, the bill must fail for want of necessary
parties), it is clear that only two classes of questions remain to be
decided: The first is whether a given stockholder was ever liable as
such; and the second is whether, if he were originally liable, his
liability has ceased, either in whole or in part. Manifestly, as it
seems to me, the defendants have no common interest in these questions,
or in the relief sought by the receiver against each defendanto The
receiver's cause of action against each defendant is, no doubt, similar
to his cause of action against every other, but this is only part of

the matter. The real issue, the actual dispute, can only be known
after each defendant has set up his defense, and defenses may vary so
widely that no two controversies may be exactly or even nearly alike.
If, as is sure to happen,differing defenses are put in by different
5 defendants, the bill evidently becomes a single proceeding only in
name. In reality it is a congeries of suits with little relation to
each other, except there is a common plaintiff who has similar claims
against many persons. But as each of these persons became liable,
if at all, by reason of a contract entered into by himself alone,
10 with the making of which his codefendants had nothing whatever to do,
so he continues to be liable, if at all, because he himself, and not
they, has done nothing to discharge the liability. Suppose A to aver
that his signature to the subscription list was a forgery; what connection has that averment with B's contention that his subscription was
15 made by an agent who had exceeded his powers? or with C's defense that
his sub cription was obtained by fraudulent representations? or with
DIs defense that he has discharged his full liability by a voluntary
payment to the receiver himself? or with E's defense that he has paid
to a 6&reditor of the corporation a larger sum that is now demanded?
20 These are separate and individual defenses, having nothing in common;
and upon each the defendant setting it up is entitled to a trial by
jury, although it may be somewhat troublesome and expensive to award
him his constitutional right. But, even if the ground of diminished
be
trouble and expense may sometimes be sufficient, I should still
25 much inclined to hesitate before I conceded the superiority of the
equitable remedy in the present case. Such a bill as is now before
the court is certain to be the beginning of a long and expensive
litigation. The hearings aie sure to be protracted. Several, perhaps many: counsel will no doubt be concerned, whose convenience must
30 be consulted. The testimony will soon grow to be voluminous. The
expense of printing will be largeo The costs of witnesses will not
in any degree be diminished, and, if some docket costs may be escaped,
this is probably the only pecuniary advantage to be enjoyed by this
one cumbersome bill over separate actions at law0 "
35
We are in accord with the views thus expressed, and we therefore
must deny the jurisdiction of equity, so far as it is based upon the
asserted prevention of a multiplicity of suits. * * *
40

The demurrer was also sustained on the first groundviz


the receiver had no standing in a foreign court0 3

that

Affirmed.
45
NOTE
Would the result in the principal case be different under the new
Federal Rules, quoted above?
50

55

The rule that a receiver could not sue in a foreign court stemmed
principally from the ancient doctrine that a court of equity acts in
personam, not in rem
From this premise it was thought to follow that
the receiver did not by his appointment acquire title to the receivee's
property, either its land or its goods or its choses in action. Therefore he had'no standing as plaintiff in an action grounded on the

738
rights of the receivee. Our courts have largely abandoned that dry
logic and even in the federal courts, where it has been most firmly
adhered to, it is being whittled away by exceptions. See Sabel, Suits
by Foreign Receivers, 19 Corn. L. Q. 442.
5

10

15

In Rogers v. Selleck, 117 Neb. 569, it was held that a receiver


of a bank, locally appointed could maintain an equitable suit against
all the stockholders to
orce t eir personal liability. Two grounds
of decision were stated: () iu'.t plicity f suits was avoided, and
(2) the stockholders' obl'gations constituted a trust fund.
In American Central Ins. Co. v. Harmon Kn-tting Mills, 39 F(2)
21 (C. C. A. 7th), the court sustained a bill by an insured against
seven insurers on policies covering the same risk, each containing
a provision that the insurer "shall not be liable for a greater proportion of any loss on the described property than the amount hereby
insured shall bear to the whole insurance, whether valid or not, or
by solvent or insolvent insurers, covering such property." What were
the common issues in this case?

20
SOUTHERN STEEL CO. v. HOPKINS
1911.
25

30

35

40

Supreme Court of Alabama. 157 Ala. 175, 47 So. 274; 174 Ala.
465, 57 So. 11.

An explosion occurred in a mine owned by the wire company, by


which 110 persons lost their lives, and 110 separate suits were brought
by their representatives to -ecover damages for alleged negligence
by the owner of the mine, in which the accident occurred. The ap ellant, alleging that the wire company (and it, as its successor) has a
perfect defense applicable alike to all these suits, filed the bill
in this case to enjoin actions at law until this defense could be determined.. The question abstra,-tly is whether the court has jurisdiction of any case of this kind, for, if it has, this case must come
within the rule, since the alltgations show that, though the defense
be perfectly good, it would be impossible for appellant to properly
present the same at law, because many of the cases would be on trial
in different courts at the same time, and further show that the expenses and costs of the litiga ion at law would be ruinous, though
successful against every plaintiff.
-.The actions for damages were brought under the Employers' Lia-

45

50

bility Act which made the employer liable for injuries caused to any
employee (1) through the defective condition of the plant or machinery,
(2) through the negligence of a "superintending" employee, (3) throu.gh
the negligence of any person whose orders,the injured employee was
bound to perform, and (4) through the act of any employee in obedience
to the employer's orders. Alabama Code of 1907, secs. 3910-3913.
MAYFIELD, J.

55

--

* * * The question of law involved in this

suit is this: Has a court of equity jurisdiction to enjoin numerous


tort actions, brought by different plaintiffs against the same defendant, when there is merely a community of interest in the questions
of law and of fact involved, and no common title, no community of
interest or of right, in the subject-matter? This question was decided
in the affirmative by this court on the former appeal. * * *