101 F. 511 | 4th Cir. | 1900
(after stating the facts as above). Before entering upon the merits of this appeal, it may not be unprofitable to comment upon what seems a want of due form in the pleading in this case. To the original bill.the defendant railroad company filed a general demurrer, and on the same day, at the same time, filed an answer. The demurrer admitted all the facts well pleaded in the bill. The answer denied in toto and in detail every allegation of fact in the bill. This cannot be said to be in due form. Mr. Justice Story in his Equity Pleading (section 454), says:
“The want of due form constitutes a just objection to the proceedings in every court of justice, for to reject all form would be destructive of the law as a science, and would introduce great uncertainty and perplexity in the administration of justice. Every irregularity of this sort is fraught with inconvenience, and generally tends to delays and doubts. And it has been well remarked that infinite mischief has been produced by the facility of courts of justice in overlooking errors of form. It encourages carelessness and places ignorance too much on a footing with knowledge amongst those who practice the drawing of pleadings.”
To the amended bill there is also a general demurrer, and at the same time an answer. Besides the general denial in the answer, there is a saving of the objection also taken by demurrer. This reservation in the answer is proper. Fost. Fed. Prac. § 110. But it
It is contended with great force that these bonds were specifically set apart under the contract for the payment of the work to be done by the plaintiff, and that hence the plaintiff has an equitable lien thereon. For this is quoted Walker v. Brown, 165 U. S., at page 664, 17 Sup. Ct. 453, 41 L. Ed. 865. In that case one Brown had delivered to a member of the firm of Lloyd & Co. $15,000, in bonds, to be used as security by them in purchases. They did incur a debt with Walker & Co. Brown, by letter to Walker & Co., stated to them that any indebtedness by Lloyd & Co. to them should be paid before the return to him of the bonds, or the value thereof.' Here was a distinct appropriation of specified bonds for a specific purpose, accompanied by the delivery of the bonds thereupon. The supreme court held that theré was a lien. But in the case at bar there is no such delivery or appropriation. On the contrary, the allegation is that upon completion of the work it is to be paid for in bonds, or in cash representing the proceeds of the bonds, not exceeding $1,800,000; the issue of bonds was $2,300,000; the bonds in the meantime remaining in the possession of and under the control of the railroad company,'and it having the option to pay in cash. Nor will the alleged insolvency of the defendant company aid the bill. In Hollins v. Iron Co., 150 U. S. 371, 14 Sup. Ct. 127, 37 L. Ed. 1113, the bill alleged a simple contract debt, the insolvency of the company, and that all the company’s property was in the hands of a trustee under a deed charged to be fraudulent. The court says:
“The plaintiffs were simple contract creditors of the company. Their claim had not been reduced to judgment, and they had no express lien by mortgage, trust deed, or otherwise. It is the settled law of this court that such creditors cannot come into equity to obtain the seizure of the property of the debtor, and its application to the satisfaction of -their claims; and this notwithstanding a statute of the state may authorize such a proceeding in a court of the state. The line of dem'arkation between equitable and legal remedies in the federal courts cannot be obliterated. See, to the same effect, Cattle Co. v. Frank, 148 U. S. 603, 13 Sup. Ct. 691, 37 L. Ed. 577; Taylor v. Bowker, 111 U. S. 115, 4 Sup. Ct. 397, 28 L. Ed. 368. In Tube-Works Co. v. Ballou, 146 U. S. 517, 13 Sup. Ct. 165, 36 L. Ed. 1070, the bill alleged a debt and that the corporation ■ had no assets or funds to pay the plaintiff, and asked the court for process against a delinquent stockholder. The court says: ‘The bill does not allege any judgment in New York, or any effort to obtain one; nor does it aver that it is impossible to obtain one. It merely alleges that the corporation has no funds or assets wherewith to pay the claim of plaintiff. When it is sought by equitable process to reach equitable interests of a debtor, the bill, unless otherwise provided by statute, must set forth a judgment in the jurisdiction in which the suit in equity is brought, the issuing of an execution thereon, and its return unsatisfied, -or must make allegation showing that it is impossible to obtain such a judgment in any court within such jurisdiction.’ ”
The counsel for the appellant, admittingthat the court cannot decree specific performance of a contract to build a railroad, seeks, however, an injunction against the railroad company from any use of its bonds. That is to say, he asks the court to tie the hands of the railroad company and to impound all of its bonds, because he insists that they are applicable to a provision of a contract on his part, not yet performed,which he may not perform, and which this court cannot compel, him to perform. He thus seeks to use the process of the court to compel by indirection the specific performance of the contract, which he could not ask the court, to do directly. The language of the court of appeals of Maryland in Canton Co. v. Northern Cent. Ry Co., 21 Md. 399, is not inapplicable to this case:
“As the hill stands, we are clearly of the opinion that it does not show' such a contract as a court, of equity can enforce hy decree, and, failing in that, it follows that an injunction which was intended to aid the general relief sought hy the bill was improperly granted.”