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FEDERAL REPoR'1'ER, vol. 39."
first tried, because the plaintiff has filed a replication to Bell's plea. While it must be admitted that a motion to withdraw an answer and substitute a plea is rare in equity causes, still, taking into consideration all the circumstances as presented in this case, I am of opinion that the justice and convenience of the case will be best promoted by having the issues proceed pari passu as to each defendant, and that, therefore, the motion should be granted. Motion granted.
PARKER v. TOWN Ol!' CONCORD et al. Oircuit Oourt, N. :D. illinois. July 22, 1889. EQUITY-ANSWER-DISMISSAL.
Where an answer to a bill in equity completely denies all its equities, and complainant has not met these denials with any proof, nor made an.y issue by replication, the bill will be dismissed.
In Equity. Bill for relief. Bailey &; Sedgwick, for complainant. Bisbee, Ahrens &; Decker, for defendants. BLODGETT, J., (orally.). is a bill filed by the complainant, as Q holder of the bonds of the town of Concord, for relief against the town and the railroad company The allegations are, substantially, that in 1869 the town of Concord voted $25,000 to aid in the construction of the Chicago, Danville & Vincennes Railroad, and subsequently issued bonds in payment of this subscription; that the complai:lant has become the holder of 20 of these bonds for $1,000 each by purchase for value in the market, and that the courts have held these bonds void. The complainant, as such bondholder, now seeks to be subrogated to the place of the railroad company as the payee of the subscription, with the averment that the issue of void bonds did not pay the indebtedness created by the subscription, it being averred that the railroad was completed according to the terms of the subscription, and that, as the complainant now stands in the position by virtue of being the owner in good faith of the bonds from the town, he is entitled to relief against the town by a decree requiring the town to pay him the. amount of the 20 bonds which he holds in satisfaction of the subscription. The case is brought to hearing on bill and answer. The answer denies many of the substantial allegations in the bill, such as the complEition of the railroad according to the terms of the subscription; and the fact that the railroad was located as was required by the terms of the subscription; and generally that the railroad company has failed to perform the conditions upon which the subscription was voted. It seems to me, without considering any other question, that as the answer completely denies the equities of the bill, and the complainant has
HEWITT V. STOREY.
719
not met those denials with any. proof, or even made an issue thereon by replication, the bill must be dismissed for want of equity. A decree will be entered accordingly.
HEWITT V. STOREY et
al.
(Oircuit Oourt, S. D. California. September 23, 1889.) CORPORATIONS-AcTIONS BY AND AGAINST.
Code Civil Proc. Cal. § 388, provides that "when two or more persons, associated in any business, transact such business under a common name, whether it comprises the names of such persons or not. the associates may be sued by such common name." Held, that a bill to enjoin interference by defend· ants with complainant's alleged right to divert water from a stream, against the "South Fork & Sunnyside Division of the Santa Ana River," which, it appears, is an association formed and existing pursuant to the laws of California, is sufficient, without making the owners and stockholders thereof parties.
In Equity. On bill and answer. RoweU & Rowe/], and John Albright, (A. W. Thompson and Brousseau & Hatch, of counsel,) for complain!\nt. Curtis & Otis and Byron Waters, (R. E. Houghton, of counsel,) for defendants. Ross, J. Certain of the defendants to this suit having by amended answers objected to the amended bill of complaint that it is defective for want of parties, the cause was, on motion of complainant, set down {(no argument on those objections, pursuant to equity rule 52, and the objections, having been argued by the respective parties, are now to be determined. The purpose of the suit on complainant's part is to establish as against the defendants his alleged right to 333i inches of the water of the Santa Ana river, measured under a 4-inch pressure, diverted at a certain specified point by means of a certain ditch, called the "Berry Roberts Ditch," and to obtain an injunction enjoining defendants from interfering therewith, To the original as well as the amended bill a large number of persons are made defendants, as also certain corporations, among them the North Fork Water Company, and a certain association, styled the" South Fork & Sunnyside Division of the Santa Ana River," which is sued as, and alleged to be, an association formed and existing pursuant to H:e laws of the state of California, and "composed of some or all of the aforesaid defendants and other persons unknown to your orator," and transacting business under that name in San Bernardino county, in which county the water in dispute is situated. The bill, as amended, alleges thatQn and after March 10, 1869, certain named persons, under and by virtue of the laws of the state of California, acquired by appropriation 500 inches of the water of the Santa Ana river, measured under a 4-inch pressure, which they diverted at a certain