e60
nOEnAL BEl'ORTER.
tioned on the fact that ("the plaintiffs, through the loss or destruction of their pooks and papers,ar other cause,shall be actually unable to furnish the particulars required," etc. When the right to avail of the proviso is claimed, confomlity with the condition 'on which it was granted must be shown to the satisfaction of the court. Besides the affidavit of the plaintiffs' attorney, there has been presented on motions an affidavit of Louis E. Schmieder, one of the plaintiffs. In this he states that, at the time of the transactions which are the subject of this suit, he was the resident partner here; the other plaintiffs, Charles E. Schmieder and Frederick Schmieder, remaining abroad. That in 1868 the firm was discontinued, "and all their books and papers, being necessary for winding up and settling the accounts of said firm. were then sent to the main house, in Germany." , Deponent then adds that" he verily believes that nOne of the records or books of said house showing their importations during the years 1863 and 1864 are now in existence." He wholly fails to state the grounds for such belief, or to show that at,;:my time during the past 20 years he has made any effort to find them. Moreover;, the very affidavit of Louis E. Schmieder shows that the books and records, of the firm were last in the possession of the other two plaintheirs, sworn or unsworn,.is offered to account tiffs. and no for them. Such proof as this wholly fails to comply with the letter or the spirit of'JUdge BROWN'S order, and is insufficient to entitle the plaintiffs to claim the benefits of the proviso. It may be that they have in fact made proper and diligent search for books and records which have been lost or destroyed to their misfortune, and without their fault; and that they have omitted. through some excus. able neglect, to state the facts in their affidavits. The time within which plaintiffs may comply with the terms of Judge BROWN'S order of June 26, 1883, is therefore extended five days from the date of service of this order on their attorney. Failing to (lOmply within that time, the former order will take, effect, and, upon the filing of ap affidavit of non-service of the bill of partioulars, defendant may have judgment of non pros. This disposition of the case will, of course, dispose oitha other motion,which was- argued at the same time, and no decision thereon need be made.
, POTTS,
Assignee, v.IlA.HNand others.
(Di8,trict Oourt, D. New ,Jersey. Octeber29; 1887.) PLEADiN'G-'-MW,TIF
In a suit ,brought by an assignee of a bankrllpt against 'several parties, the aUeged facts showing that they were ",U c.onnected with fraudulen t undertakmgs for thepllrpose of preventing the bankrupt's property from reaching the assignee's control, but,showing alsa'that the defendahtswere not aU connected with each fraudulent; act, but that some of them performed one act, and some another, allte,nding to the Same result., Held" upOl).demurrer on the ground of multifariousness that the complaint the defendantS joined in the common fraudulent purpose. .., '. . ...
FRAUDULENT CONVEYANCES. '
POTTS V. HAHN.
661
In Equity. Demurrer to bill. G. A. SeixaB, for complainants. Samuel Kali,sch, for defendants. W J. Proceedings in bankruptcy were begun against John Hahn, one of the defendants, on the thirty-first of January, 1876, and on the ninth of April, 1887, he was declared a bankrupt, and the complainant appointed assignee. The bill sets forth that John Hahn, in contemplation of insolvency, and within three months before the filing of the petition for adjudication against him, executed a mortgage of his real es-, tate to Louis for a considerable sum, and afterwards conveyed the same real estate to Philip Kirchner, who, subsequently, conveyed it to Barbara Hahn, the wife of the bankrupt; that the said mortgage and conveyance were made and delivered without anyconsideration,an\l that the said Louis and Philip Kirchner had reasonable cause to believe that John Hahn was and that they accepted the said mortgage and conveyanq.e for the purpose of aiding and abetting the bankrupt in his fraudulent schE)me to prevent the said real estltte. from coming to pis assignee, and from being distributed under the bankrupt act; that the, said Barbara Hahn has not and never had any estate, separate and apart from her husband, and was also a party to the same fraudulent scheme; that at about the time of the pretended conveyance to Philip Kirchner, the bankrupt transferred and in other ways divested himself of all his property, and in particular, on the eighth of January, 1875, being then insolvent, did chattel mortgage and transfer to his son, John Hahn, Jr., for the expressed consideration of $2,500, his stock in trade and all other property connected with and relating to the businesR of a tobacco and cigar store, and all the household goods belonging to the bankrupt which were then on the premises covered by the mortgage and conveyance to and P. Kirchner, with intent to delay and defraud this plaintiff and the bankrupt's creditors, and that John Hahn, Jr., knowingly aided and abetted his father in carrying out his fraudulent plan. The bill concludes with a prayer tha,t the mortgage and deed, may be declared void, that the defendants may be enjoined from disposing of the said property, and for an acc<?untof the rents ,and profits, ,also for, I·appointment of a receiver. The bill is demurred to for multifariousness, on the ground that it exhibits several distinct matters and causes; in many of which some of the de.fendants are not in any manner interestE)dor cc.mcerqed. , The object'o£joining these defendants was to prevent a multiplicity of suits, an object always favored inequity. The bill alleges that-the other defendants,' or tqget!:ler" aidedJohn B,:ahn, in carrying out a deliberately contrived scheme to defraud his creditors: This makes a single issue on the central question of fraud, to the perpetration:of' which it is alleged the by their. individual and distinct acts.' In Way v. Bragaw, l6N.. J. Eq.213,the court said: "Where there ison,eent,iJ:ecase stilted as against debtor, it' is no objection that one or more of the defendants to whom parts oftheproperliY have
FEDERAL REPORTER.
been fraudulently conveyed, had nothing to do with the other fraudulenttransactions. The case against the debtor is so cannot be prosecuted tn several suits, and yet each of the defendants ,is a necel$sary party to some part of the case l$tated. In such case neitlierof the defendants can dE'lllUr for multifariousness, or for a misjoinder of cause of action in some of which he has 'no (interest." The, same doctrine is approved in Randolph v. Daly, 16 N. J. Eq. 313. Demurrers for the !lame cause and under an analogous state of facts were overruled in Railroad (Jo. v. Sch'/!-ykrr; 17 N. Y. 592, in Fellow8 v. FeUOW8, 4 Cow. 682. The supreme court of the United States held that it is impracticable to lay down any fixed, unbending rule as to wha:t constitutes multifariousness. Each case must -depend upon its specialcircumEltances and the necessities which may arise out of the due administration of justice in that case. As a general rule, the court will not compel parties to incur the expense, vexation, and delay of several snits ';vh ere the transactions constituting the subject of the litigation or out of which the litigation ,arises, are so connected by their circumstll\lCeSas, to render it proper and convenierit that they should be amined in the SRme suit, and full relief given by 'one comprehensive decree. ,A.'different rule would often prove to be both oppressive and miscould result 'in no possible benefit to any litigant whose was not simply to harass his adversary, but to ascertain what , Sheldon Keok'ttk,N. L. (Jo;, 8 Fed. Rep. were his just legal 169. ,The defendants can'be 'placed under no disadvantage by being joined in the bill,and the complainant will be saved the expense, labor, and time of prosecuting several suits. , ' The demtlrrer is overruled, lind' it is ordered that the defendants plead to or answer the bill within 30 days.
HAYES ". UNITED STATEs.
«(JfrCUil (Jourt;D. 1.
(Jolo'1'aao. N overriDer 14, 1887.) .,
. was of and corruptly obstructtng the' administration of"justice' as a juror; On the trial counsel for accused , sUtted that !this was "the first, case of the The court told the jury it . theftrst of the kin!!; and that a similar case had arisen. and gave tbe general facts of it.. Held, that it', was not error for tbe court to tbus disabuse the' minds' of the jury of an impression that they were trying an unprece· dented case. . i ' i. . ,
CRIMINAL. PRACTICE-1NsTRUCTlON8-o-PROVINCE 0' COURT,
2. ,SA.:ME, " . . . .· " _ TAil court further said: h,e.{defendant) went,out and took counsel of ,*.' .' with respect to VerdIct.) His choice of an adviser was rather .),' unfortunate;' that a man should go toil. boon companion in a drinking-saloon, a bar-room loafer, to ask what the law is on a subject of that kind," Held. that this was not error, as the judge's reference to the witness as a "bar-room by his appearance, and the other facts re, loafer"might have been ferred to appeared in the record. ' .' " .