22 F. 401 | U.S. Cir. Ct. | 1884
The defendant has filed a special demurrer to the hill of eómplaint, and sets forth as the ground of demurrer that the bill is multifarious, inasmuch as it reveals two distinct causes of action, — one, against the defendant as trustee of Northern Pacific Land Trust No. 1, and the other against the defendant as trustee of Northern Pacific Land Trust No. 2, — the complainants not having a common interest in said land trusts. It appears by the bill of complaint that prior to July 1, 1875, the several complainants, together with a number of others, were the owners of certain bonds of the Northern Pacific Railroad Company, amounting in the aggregate to §[>1,954.55; that they were addressed by the defendant in a circular letter of the above date, representing that other owners of said bonds had placed the same in his hands to be converted into the lands held by said railroad company, and asking them to intrust thoir bonds to him for the same purpose, and proposing that all the lands acquired by him in exchange for the bonds should be taken in his name, as trustee for the owners; that the purchases and sales should be pro rata for all interested, and that a distribution of the profits should be made as frequently as practicable; that; in order to the payment of the preliminary expenses for location, etc., a remittance of five dollars should accompany each $ 1,0U0 bond, and other amounts in proportion; that in response to said circular letter the complainants and others sent bonds aggregating the sum of $91,954.55 to the defendant, who returned certificates to said owners severally in the following form, expressing in dollars and cents the value of the bond:
“This certifies that-has an interest of-- dollars and-cents in the Noilhern Pacific Land Trust No. 1, which interest is transferable in person or by attorney on the books of the trustee upon surrender of this certificate. Charles W. Hassler, Trustee, No. 7 Wall St.”
The bill further sots forth the amounts of the railroad bonds held by the complainants respectively, and thoir value, when delivered to the defendant for the purpose aforesaid; that they wore all cloiiv-
A demurrer for multifariousness largely appeals to the discretion of the court. Although there are certain general rules and principles which are applicable, the courts are quite disposed to let each case stand upon its own circumstances, and to sustain or overrule a demurrer as it seems least embarrassing to the parties in the suit, and most conducive to the ends of justice. Multifariousness may be defined generally to be an attempt to embrace in the same suit two or more distinct subjects, whether it be the uniting in one bill of several unconnected matters against a single defendant, or the demand of several matters pf an independent nature against several defendants. Story, Eq. Pl. § 271. Doubtless, in the present case, each individual complainant could have maintained a separate suit against the defendant for an account as trustee, but a multiplicity of actions is avoided, and the defendant is in nowise embarrassed by being called upon in a single action to account respectively to the several complainants, and to all others who joined in the suit for their respective interests in the trhst fund. Indeed, if the allegation of the bill be true,— and for the purposes of the demurrer it must be accepted as true that the defendant has made no distinction between the classes Nos. 1 and 2, in his use and appropriation of the moneys received and collected on account of the trust, — we do not see how any proper accounting can be had without embracing both trusts in the same suit.
The adjudged cases sustain this view. Brinkerhoff v. Brown, 6 Johns. Ch. 139, has long been regarded as a leading one on this sub-
“The principal matter in controversy” in the pending case is compelling a trustee to account to his cestui que trusts for the moneys and property appertaining to tlio trust, and, although the interest of the several complainants “may have arisen under distinct contracts,” no practical inconvenience can arise, on the accounting, from that fact. The demurrer must be overruled, with costs, and the defendant is allowed 20 days to ñle his answer.