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bie advantage of her ignorance to get possess- | debtor, upon slight additional facts." See also

ion of it. In reply to the argument that the proceedings were regular, Mr. Justice Bradley observed: "It is insisted that the proceedings were all conducted according to the forms of law. Very likely. Some of the most atrocious frauds are committed in that way. Indeed, the greater the fraud intended, the more par ticular the parties to it often are to proceed ac cording to the strictest forms of law." The court commented most severely upon the conduct of the purchasers, and found no difficulty in setting aside the sale, although four members of the court dissented upon the ground that the complainant had failed in her duty to redeem from the sale within the time limited by law.

In Howell v. Baker, 4 Johns. Ch. 118, a farm worth $2,000 was sold under a judgment and execution, on which not more than $80 were due, to the attorney of the plaintiff, who attended the sheriff's sale, for $10. The sale was held upon a stormy day, when no person but the attorney and the deputy sheriff were present, and it was held that these facts, connected with the gross inadequacy of price, were sufficient to authorize the purchaser to be held as trustee for the respective interests of the parties to the execution, and the bidder was allowed to redeem on equitable terms. A large number of other cases are also cited by Mr. 340 Justice Bradley in his * opinion in Graffam v. Burgess, and the general proposition laid down, as above stated, that if, in addition to inadequacy of price, there be other circum stances throwing shadow upon the fairness of the transaction, the judgment debtor will be allowed to redeem.

a

There are other facts in this case than the grossly inadequate price realized for this property that afford ample justification for the ac tion of the court below in permitting the plaintiff to redeem upon equitable terms, and ordering a reconveyance of the property.

Hall v. Hallet, 1 Cox, Ch. 134; Jones v. Mar-
tin, 26 Tex. 57; Byers v. Surget, 60 U. S. 19
How. 303 [15: 670); Blight v. Tobin, 7 T. B.
Mon. 612, 18 Am. Dec. 219.

2. The alias execution of July 28 was not only issued for the full amount of the original judgment, $1,673.36and $30.50costs, without deducting $962.36, realized upon the first *exe- [341 cution, but under it the marshal sold, under the directions of Stephens and Schroeder, property for an amount in excess of the amount remaining unpaid on the judgment, and collected the excess and paid it over to Stephens and Schroeder, who retained it. In this connection the trial court made the following finding: "At the time of the last sale, to wit, September 30, 1891, there was a balance due Clark, Eldredge, & Co. of only $25.57, and their judgment had been satisfied except said sum, and to satisfy said balance property was sold as aforesaid, amounting in all to $136, $106 of which was paid by the United States marshal to said Stephens and Schroeder." Upon no theory were the judgment creditors entitled to any more than the amount of their claim, and if, as may sometimes happen, the property be sold for more than the amount of the execution, the residue should be returned to the judgment debtor.

There is reason for saying that the issue of an alias execution for the original amount of the judgment, after the return of a prior execution, satisfied to the amount of nearly one half of such judgment, the sale of property thereunder to an amount more than sufficient to satisfy the amount actually due, and the payment of the excess to the plaintiff's attorneys, invalidate the entire proceedings-the rule in some states being that a levy for an amount exceeding the amount of the judgment, or the amount actually due upon the judgment, with interest and costs, is void. 2 Freem. Executions, § 381; Glidden v. Chase, 35 Me. 90, 56 Am. Dec. 690; Pickett v. Breckenridge, 22 Pick. 297, 33 Am. Dec. 745; Peck v. Tiffany, 2 N. Y. 457; Hastings v. Johnson, 1 Nev. 614; Patterson v. Carneal, 3 A. K. Marsh. 618, 13 Am. Dec. 208. But, however this may be, there can be no doubt that this alias execution and the proceedings thereunder were irregular so far as Stephens and Schroeder were concerned, though perhaps not to the extent of invalidating the title of a bona fide purchaser. Stead v. Course, 8 U. S. 4 Cranch, 403 [2: 660]; French v. Edwards, 80 U. S. 13 Wall. 506 [20: 702]; Groff v. Jones. 6 Wend. 522, 22 Am. Dec. 545; Tiernan v. Wilson, 6 Johns. Ch. 411.

1. The property was sold to Stephens and Schroeder, who had acted as attorneys for the judgment creditor throughout the entire transaction, and had been fully paid by the corporation for their services. In this connection the trial court further found that Stephens furnished the officer a description of the property to be levied upon and sold, and that he accordingly did levy upon and sell as he was directed by Stephens according to such description. Add to this the further finding that at neither of the sales was there any other bidder and no other person present than Stephens and the officer conducting the sales, and we can readily appreciate how inevitable it was that the property should be sacrificed. Although there is no general rule that an attorney may not purchase at an execution sale, provided it be not done to the prejudice of his own clients (Pacific R. Co. v. Ketchum, 101 U. S. 289, 300 [25: 932, 937]), such purchase in itself is calculated to throw a doubt upon the fairness of the sale, and as is quaintly said of such sales by the court of appeals of Kentucky in Howell v. McCreery, 7 Dana, 388: "Public the authorities are not entirely in harmony,

3. The court below was also of opinion that the property of the debtor was sacrificed by the manner in which the sales *were made, [342 and particularly by the successive sales of his interest in different parts of lot 2, block 70, held in common with his sister, Lydia Y. Merrill, and that a proper regard for his interests required that his entire right to the whole land thus held in common should have been sold at one time. This, however, raises a question as to which

viz., whether the levy upon the interest of a cotenant, in a specific part, designated by metes and bounds, of a certain larger quan

policy and the analogies of law require that they should be considered per se as in the twilight between legal fraud and fairness, and should be deemed fraudulent, or in trust for the tity of land, is valid. In view of the other manifest irregularities, we do not feel called | what he conceived to be an immense speculaupon to express an opinion upon this point.

There is one finding, however, in respect to these sales, which, taken in connection with the facts that the defendants were the attorneys for the judgment creditors, furnished the officer selling the property with the description of the property to be levied upon and sold, and became the purchasers of the property either directly from the marshal, or indirectly through their client Clark, which is in itself sufficient to justify the action of the court below in vacating the sales and permitting the plaintiff to redeem, viz., that "before any of said property was sold, said Stephens, who was the sole bidder at each of said sales, formed the intention that, regardless of the value of the various pieces of property to be sold, and that were sold, he would leave a balance after each sale, so that all of the plaintiff's property would be sold, and he so bid at the various sales as to accomplish, and did accomplish, said object and purpose." As Stephens was appellant's partner in the practice of law, and in the prosecution of the claim of Clark, Eldredge, & Co., and bought the property in for himself and partner, who now sets up title in himself by virtue of such purchase, it is clear that he is bound by Stephens' acts and representations. Certainly he cannot set up a title acquired by Stephens' assistance, and at the same time repudiate his acts in connection with the acquisition of such title.

There are other circumstances also found by the court below, which, taken in connection with the grossly inadequate price paid, render it still more inequitable that purchasers standing in the position of the defendants in this case 343]*should insist upon the letter of the bargain, and throw something more than a mere doubt upon the fairness of the transaction. Before the time had expired for redemption Stephens and Schroeder requested the collector of taxes of that county to allow them to bring suit against the plaintiff to recover the taxes owing by him for the year 1890, on the part of lot 2 described in the complaint, and agreed that, if the collector so consented, they would bring the suit, and make the collection free of cost to the collector, -an arrangement which was carried out according to its terms. On April 10, 1892, plaintiff offered to pay defendants the full amount of the judgment obtained by them, together with interest at the rate of 1 per cent per month, and also to liberally compensate them for all their services and trouble, give them $1,000 besides as a bonus, and pay all their advances with interest if they would reconvey to him, which the defendants refused to do. Of a similar offer and refusal this court in 60 U. S. 19 How. 310, 311 [15:673], speaking through Mr. Justice Daniel said: "Another pregnant proof of the design of the appellant to grasp and retain what no principle of liberality or equity could warrant is the fact, clearly established, of his refusal after the sale to accept from the appellee, for the redemption of his lands so glaringly sacrificed, a sum of money considerably exceeding in amount the judgment for costs, with all the expenses incidental to the carrying that judgment into effect. The appellant, by his irregular and unconscientious contrivances, achieved

tion, and he determined to avail himself of it, regardless of its injustice and ruinous consequences to the appellee."

About the same time the plaintiff, being ignorant of the fact that lot 12 had been sold and that the defendants had a deed therefor, informed the defendant Schroeder that he intended to redeem the lot from a sale that had been made for the taxes of 1891, and afterwards did so redeem said lot, and informed Schroeder that it had been done, the plaintiff being still ignorant that the defendants held a marshal's deed for it. Again on April 24, plaintiff being still ignorant that defendants held a marshal's deed for lot 12, informed *Schroeder that he intended to redeem [344 said lot fromatax sale that had been made thereof for the taxes of 1890, and did subsequently re deem the same, and informed Schroeder of the fact, and that Schroeder never at any time informed him that he had obtained a deed for the lot. The court further found that defendants purposely and intentionally failed to inform the plaintiff that they had a title to the said lot at the time the plaintiff was redeeming the same from the tax sales. The court further found that the said attorneys, in violation of their duty to obtain the highest possible price for the property while acting in behalf of their clients, became the bidders upon said property, and so acted as to obtain the same for the least possible sum, so as to satisfy the judgment, and at the same time to sell all the property belonging to said Young. If these facts be not sufficient to justify a rescission of these sales, it is difficult to imagine what would be so considered.

4. Defendant relies mainly upon the fact that the statutory period of redemption was allowed to expire before this bill was filed, but the court below found in this connection that before the time had expired to redeem the property, the plaintiff was told by the defendant Stephens that he would not be pushed, that the statutory time to redeem would not be insisted upon, and that the plaintiff believed and relied upon such assurance. Under such circumstances the courts have held with great unanimity that the purchaser is estopped to insist upon the statutory period, notwithstanding the assurances were not in writing and were made without consideration, upon the ground that the debtor was lulled into a false security. Guinn v. Locke, 1 Head, 110; Combs v. Little, 4 N. J. Eq. 310, 40 Am. Dec. 207; Grifin v. Coffey, 9 B. Mon. 452; Martin v. Martin, 16 B. Mon. 8: Butt v. Butt, 91 Ind. 305; Turner v. King, 2 Ired. Eq. 132, 38 Am. Dec. 679; Lucas v. Nichols, 66 III. 41; McMakin v. Schenck, 98 Ind. 264. In Southard v. Pope, 9 B. Mon. 261, 264, it is said that "a refusal by the purchaser to accept the money and permit the redemption to be made within the time agreed would be a fraud upon the defendant in execution, and authorize an application by him to a court of equity for relief."

*Probably, if a motion had been made [345 in the original case to set aside the sale upon the ground of mere irregularities, such motion would have to be made before the statutory period for redemption had passed; but in this class of cases, where fraudulent conduct is imputed to the parties conducting the sale, there

is a concurrent jurisdiction of a court of equity, founded upon its general right to relieve from the consequences of fraud, accident, or mistake, which may be exercised, notwithstand ing the statutory period for redemption has expired. It is evident that, where a sale has culminated in the execution and delivery of a deed to the purchaser, which is not void upon its face, or a mortgage has been put upon the property, as in this case, no remedy is complete which does not go to the cancelation of such deed, and the complete reinvestment of the title in the plaintiff. It also appears from the findings that appellant has received rents from the property, that various sums had been expended for taxes and other purposes, that an accounting was necessary in adjusting the rights of the parties, which could not be effectually carried on in a court of law. There can be no doubt of the jurisdiction of a court of equity in such case notwithstanding the expiration of the statutory time of redemption. Graffam v. Burgess, 117 U. S. 180 [29: 839]; Blight v. Tobin, 7 T. B. Mon. 612, 18 Am. Dec. 219; Day v. Graham, 6 Ill. 435; Morris v. Robey, 73 111. 462; Fergus v. Woodworth, 44 III. 374; Bullen v. Dawson, 139 Ill. 633; Jenkins v. Merriweather, 109 III. 647; State Bank v. Noland, 13 Ark. 299.

The appellant's brief deals largely with criticisms upon the findings and upon the admission of testimony, which we do not feel it necessary to discuss, as they do not involve the merits of the case, which rest upon the undisputed facts. It would be a reproach to a court of equity, if it could not lay hold of such a transaction as this is shown to be, and set aside a sale of property acquired under the forms of law and in defiance of natural justice.

The decree of the court below is therefore af firmed.

IN ERROR

IN

to the Supreme Court of the State

of North Carolina to review a judgment of that court affirming the judgment of the Superior Court of Iredell County in that State, in favor of the plaintiffs, Isaac Wallace et al., for the recovery from Robert M. Douglas of the amount of certain drafts drawn upon him. On motion to dismiss or affirm. Affirmed. See same case below, 116 N. C. 659.

Statement by Mr. Justice Brown:

This was a motion to dismiss a writ of error for want of jurisdiction, or to affirm the judgment of the supreme court of North Carolina upon the ground that the writ of error was sued out for delay merely, and the question upon which jurisdiction depended was so frivolous as not to need further argument.

The action was brought in the superior court of Iredell county, North Carolina, by the defendants in error, the firm of Wallace Bros., to recover of Douglas, the plaintiff in error, the amount of certain drafts drawn upon him by certain persons, and accepted by writing across said drafts: "Accepted; payable when I receive funds to the use of" the drawer of the drafts. (Signed) "R. M. Douglas, U. S. Marshal." The matters involved in the action were referred to a referee, who found that the defendant Douglas was marshal of the United States for the western district of North Carolina for the years 1878 to 1881, and that during this time he had in his employment as deputy marshals J. T. Patterson, Jr., in whose favor he accepted a draft of $200; W. J. Patterson, in whose favor he accepted a draft for $325, and S. P. Graham, who had a claim against the marshal for $98.82 for official services rendered to the marshal, all of which were assigned to the plaintiffs. The referee further reported that there had been placed to the credit of Douglas in the Treasury Department of the

346]ROBERT M. DOUGLAS, Plf. in Err., United States the sum of $460.76 upon claims

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due him for the services of J. T. Patterson, Jr., performed prior to the *accept- [347 ance of his draft for $200, not subject to any previous order, and that the same was placed to his credit since the acceptance of the draft;

Motion to dismiss assignments of claims against that there had also been placed to his credit

the United States.

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the sum of $2,274.55, due him for the services of W. J. Patterson, rendered prior to the acceptance of his draft for $325, and that the same was subject only to two drafts for the aggregate sum of $600; that of the claim of $98.82 due to S. P. Graham for services rendered as deputy, $95.62 had been placed to the credit of the defendant in the Treasury Department since the acceptance of the claim by the defendant, the remainder of said claim having been allowed by the government; that the vouchers so traded to the plaintiffs were for services rendered prior to the said acceptance, and before the same was transferred to the plaintiffs, and that the further sum of $2,858.76 was placed to the defendant's credit

Submitted January 27, 1896. Decided March and control in the Treasury Department for sum defendant received $900, leaving $1,958. 67 to the credit of the defendant since the acceptance. The referee accordingly reported that the plaintiffs were entitled to payment for the full amount of their claim.

2, 1896.

NOTE.-As to jurisdiction in the United States Su-, preme Court, where Federal question arises or where are drawn in question statutes, treaty, or Constitution, see notes to Martin v. Hunter, 4: 97; Matthews v. Zane, 2: 654; and Williams v. Norris, 6: 571.

As to jurisdiction of United States Supreme

services rendered by Graham, out of which Court to declare state law void as in conflict with state Constitution; to revise decrees of state courts as to construction of state laws, see notes to Hart v. Lamphire, 7: 679, and Commercial Bank v. Buckingham, 12: 100

Before the judgment of the court was rendered, the defendant moved that the action be dismissed, upon the ground that the evidence disclosed that the drafts and accounts declared upon were drawn upon claims, or an interest in claims, against the United States before their allowance, and were therefore null and void under U. S. Rev. Stat. § 3477, inhibiting the assignment of claims against the United States. This motion was overruled, the court proceeded to consider the case upon the report of the referee and exceptions thereto, and entered a judgment in favor of the plaintiffs, from which the defendant appealed to the supreme court of North Carolina, which affirmed the judgment of the court below. Whereupon defendant sued out this writ of error.

Mr. Robert M. Douglas, plaintiff in error, in person. Mr. W. P. Montague for defendants in

error.

Mr. Justice Brown delivered the opinion of the court:

348] *The only Federal question in this case was raised upon the motion of the defendant to dismiss, upon the ground that the evidence disclosed that the drafts and accounts declared upon were drawn upon claims, or an interest in claims, against the United States before their allowance, contrary to the provisions of U. S. Rev. Stat. § 3477, which declares that "all transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof,"

etc.

they were paid out of the funds to be realized by the marshal from the government. Although deputies are recognized by law as necessary to the proper administration of the marshal's office, they receive from the government neither salaries nor fees, and the government has no dealings directly with them. The accounts are rendered by the marshal, who charges, not only for his own services, but *for those of each of his deputies, who [349 are appointed by the marshal personally and accountable to him alone, though subject to be removed by the court at its pleasure. U. S. Rev. Stat. §780. The marshal makes his own bargains with his deputies, and is unrestricted in the amount he shall pay them, which may be either a salary or a proportion of the fees earned by them, except that, in computing the maximum compensation to which he is entitled, the allowance of no deputy shall exceed three fourths of the fees and emoluments received or payable for the services rendered by him. § 841. He is thus bound to charge himself with a quarter of the fees earned by each deputy. Their claims for services against the marshal stand upon the same footing as those of an ordinary employee against his employer, and are not even contingent upon the marshal collecting his own accounts against the United States, although in the present case the marshal accepted the drafts in suit upon such contingency.

It is true that in a narrow sense of the word these deputies may be said to have had an interest in the claim of the marshal against the United States, inasmuch as their drafts were not payable until the marshal received funds for the use of the drawers, or rather applicable to the services rendered by the drawers; but this was rather a method of fixing a date for the maturity of the drafts than a contingency upon the happening of which the claims of the deputies should be payable. If, for instance, the marshal were to give his grocer or other ordinary creditor a note, payable when a certain claim of his against the government were paid, such creditor might be said to be interested in the payment of the claim; but he could not, in the sense of the statute, be said to have an interest in the claim itself, since his debt existed entirely independently of the claim. Had the drafts in this case been surrendered and canceled, the claims would still have existed against the marshal personally, and, in the absence of any agreement to the contrary might have been subject to enforcement. Their claims were for services rendered to the marshal, though the amount of such claims was measured by the fees which the marshal was entitled to charge the government for *their services. Had [350 the marshal neglected to include them in his accounts their validity as claims against him Upon the merits, we think the position as would not have been affected, and if they sumed by the defendant is wholly untenable. chose to wait payment of their claims until The deputy marshals, for whose services the the marshal received money applicable to their drafts in question were accepted, not only services, this was a matter of favor to him. had no claim upon the United States, and no The plaintiffs are no more the assignees of the part or share in any such claim, but they had deputies' claims against the government than no proper interest in any such claim. Their ac the deputies were of a share or interest in the counts, for which the drafts were accepted, marshal's claim against the government. Upwere claims against the marshal personally, on the theory of the defendant the deputies and not against the United States, though | would be without remedy. They would have

While we are of the opinion that the claim of a Federal question thus presented is not so clearty frivolous as to authorize us to dismiss the case, within the rulings in Millingar v. Hartupee, 73 U. S 6 Wall. 258 [18:829]; New Orleans v. New Orleans Waterworks Co. 142 U. S. 79, 87 [35:943, 946]; and Hamblin v. Western Land Co. 147 U. S. 531 [37:267], we think there was such color for the motion to dismiss as authorizes us to proceed to the consideration of the question involved.

no claim directly against the government, because he stands between them; they would have none against him personally, since, by his acceptance of their drafts, they became assignees of a share or interest in his claim against the government.

The judgment of the supreme court of North Carolina is affirmed.

GEORGE W. COCHRAN, Appt.,

0.

ISAAC L. BLOUT, Trustee, ET AL.

(See S. C. Reporter's ed. 350-355.)

Specific performance-contract by broker-effect of answer.

1. Specific performance by a part owner of land, of a contract made by a real-estate broker, cannot be enforced unless he held himself out as the sole owner or as having authority from his coowners to sell the whole.

2. The fact that a paper given by a real-estate broker to a purchaser of land, containing a memorandum of the agreement, is signed by the broker as agent for a person named and others," is sufficient to show that the broker was aware that the person named was not the sole owner,

and also is notice to the purchaser of that fact.

8. The burden of overcoming the responsive effect

who executed a contemporaneous declaration of trust, wherein he acknowledged that he held said square in trust for the following persons: For himself, one sixth; Julius Lansburgh, one third; Henry T. Tracy, one sixth; Morris Clark, one sixth; and the firm of Ryon & Tracy, composed of James P. Ryon and Burr R. Tracy, one sixth, -each of said parties having paid his proportional part of the purchase money, and for the following purposes: The land was to be subdivided in such manner as might be agreed on by the parties in interest, such agreement to be expressed by the written signature of James P. Ryon, and to be sold either in whole or in part upon such terms as should be agreed upon by the parties in interest, such agreement to be expressed by the written signature of James P. Ryon, and upon the trust to convey the ground so sold to the purchaser or purchasers, and to pay over unto the parties in interest, according to their respective interests at the time of sale, or, if the parties in interest should so desire, to apply said proceeds of sale to the payment of certain described encumbrances on said tract.

In January, 1889, Lansburgh put the said square, with other property wholly his own, into the hands of Joseph T. Dyer, a real-estate broker in the city of Washington, for sale at and for the sum of 28 cents per square foot. On September 26, 1889, Dyer gave to George W. Cochran, the plaintiff, a paper in the fol

of a sworn answer, necessary in equity, is upon lowing terms:

the complainant.

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Statement by Mr. Justice Shiras:

Af

On July 21, 1890, George W. Cochran filed in the supreme court of the District of Columbia a bill of complaint against Isaac L. Blout, trustee, James P. Ryon, and Julius Lansburgh, whereby he sought a decree, in the nature of a decree for specific performance, to compel Lansburgh to convey to him an undivided onethird equitable interest owned by Lansburgh in a certain square or tract of land in the city of Washington, and Blout and Ryon to join in said conveyance as holders of the legal title.

The facts out of which the controversy grew were substantially these:

351] *By virtue of certain deeds and agreements, not necessary here to state, on June 1, 1886, the legal title to square 980 in the city of Washington became vested in Isaac L. Blout,

NOTE. As to when specific performance decreed, and when refused, see notes to Hepburn v. Dunlop, 4: 65; Colson v. Thompson, 4: 253; and Brashier v. Gratz, 5: 322.

That plaintiff must show performance, or readiness to perform, and offer to perform; decreed against subsequent purchaser, see notes to Colson v. Thompson, 4: 253, and Pratt v. Carroll, 3: 627.

Washington, D. C., Sept. 26, 1889. Received of George W. Cochran, Esq., a deposit of three hundred ($300) dollars, to be applied in part payment of purchase of all of square 980, sold him for 28 cents per square foot on following terms: One third cash, bal. in 1, 2, and 3 years, with interest at 6 per cent,

payable semi annually; property sold as a good title, or no sale; all taxes to be paid to Nov. 30th, 1889. The purchaser is required to make within thirty *days from this date, or 352 deposit will be forfeited. Conveyancing at purchaser's cost. J. T. Dyer,

full settlement in accordance with terms of sale

Agent for Julius Lansburgh and others.

On that day Dyer gave a written notice of the sale to Lansburgh, and on the next day to Ryon & Tracy, who approved the same. The notice and approval were in form as follows: Washington, D. C., Sept. 26, 1889.

Messrs. Ryon & Tracy.

Dear Sirs: I have sold square 980 to George W.Cochran, Esq., for 28 cents per square foot, one third cash, balance in 1, 2, and 3 years, 6 per cent, and have received a deposit of $300 to bind the sale; property sold as a good title. J. T. Dyer.

Sale approved: Ryon & Tracy, Sept. 27, 1889. Approved: Julius Lansburgh.

As to when a broker to sell real estate is entitled to commission, see note to McGavock v. Woodlief, 15: 884.

That title may be made any time before decree; necessary parties to action, objection to; unnecessary parties; when objection made striking out parties,-see notes to Hepburn v. Dunlop, 4: 65, and Morgan v. Morgan, 4: 242.

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