Backus v. BrooksBackus v. Brooks
It would be a tremendous task to bunch in this memorandum the facts which seem to be well pleaded in the bill, and therefore admitted by the demurrer. It is an unusually verbose and complicated presentation of facts, and will speak for itself. No abstract which satisfies my mind would help the higher powers, and therefore I refrain from the attempt. At the time the bill was filed ati ex parte request was made for a preliminary injunctiоn to prevent the alienation of stock in the Sealshipt Oyster System by either Brooks or the .System until final hearing. When the affidavits were read, I was instantly satisfied that such an order was not warranted bv the facts presented, which were substantially those found in thе bill.
There were two sets of plaintiffs and two sets of defendants. One of the plaintiffs рresented a state of facts which seemed to set forth a wrong which ought to bе dealt with in a court of law. The other plaintiffs presented a state of facts which many years before might have appealed to the conscience of a court of equity, if the proper parties had come beforе it; but it struck me that they came too late, and in an improper manner, and with no very definite idea of what their wrongs were and what party they expected the court to enforce a remedy upon. The preliminary injunction was thereforе refused, and later came the demurrers, amplyfying and defining with accuracy the vаgue notions which came over me at the beginning.
I do not know of any equity rule, written or unwritten, which prohibits the defendants from filing such demurrers as those here presented withоut first answering the allegations of fraud. Certainly no rule, with even a strained constructiоn put upon it, could affect the rights of the Sealshipt Oyster System. Taking the broadest view possible of the 'facts and equity rule 32, I cannot accept the dicta fоund in Johnston v. Mercantile Co. (D. C.)
There are two main lines of attack in this bill. One by A. Backus, Jr., & Sons Corporation against the Sealshipt Oyster System, counting оn a breach of contract between the plaintiffs and defendant’s predecessor, the American Company. The other is by New ton D. and Henry N. Backus, asserting their rights to have certain stock of the System turned over to them in place of stоck which they ought to have had in the System’s predecessor, the National Company, which followed the American Company. These rights are based entirely upon their ownership of stock in the American Company, and are
When the charge of multifariousness comes up against a bill, I am aware that a court of equity will exercise a large discretion and retain the bill, if possible; but in such a case as the one before us the quаgmire is so treacherous and the enveloping forest so dense that I am unable to see any way out of it, if I shall once begin to travel through it.
For the reasons faintly outlined, and for many untouched, the demurrers must be sustained and the bill dismissed, with costs.