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Argument for the United States.

Fancher, 145 N. Y. 552; Newton v. Porter, 5 Lansing, 416; S. C., 69 N. Y. 133.

200 U.S.

Equity only stops the pursuit when the means of ascertainment fails, or the rights of bona fide purchasers for value, without notice of the trust, have intervened. The relief can be adapted to the circumstances of the case, so as to protect the interests and rights of the true owner. Lane v. Dighton, Ambler, 409; Mansell v. Mansell, 2 P. Wms. 679; Lench v. Lench, 10 Ves. 511; Lewis v. Madocks, 17 Ves. 49; Perry on Trusts, $829; Story's Eq., §1258.

The aid of equity is not to be denied where a case is otherwise made simply because the defendant may be solvent, and simply because at the time the bill is filed the complainant may not have exact information as to the particular property sought to be charged. Angle v. Chicago, St. Paul &c. Railway, 151 U. S. 1; Clews v. Jamieson, 182 U. S. 461; Pomeroy's Eq. Jur., § 158.

The aid of equity may be invoked by reason of the fraud, misrepresentations and concealments practiced by the defendants. Equity has always had jurisdiction of fraud, misrepresentation and concealment and it does not depend upon discovery. Jones v. Bolles, 9 Wall. 369.

When an account cannot be justly and fairly taken at law, equity has always had jurisdiction. Weymouth v. Boyer, 1 Ves. Jr. 424; Fowle v. Laurason's Executors, 5 Pet. 495; Kilbourn v. Sunderland, 130 U. S. 505, 515; 1 Story Eq. Jur. §§ 450-495; Pomeroy's Eq. Jur. § 1421; Kirby v. Lake Shore Ry., 120 U. S. 130, 134. See also Fenno v. Primrose, 116 Fed. Rep. 49; McMullen Lumber Co. v. Strother, 136 Fed. Rep.

295.

The jurisdiction in equity should also be maintained to avoid a multiplicity of suits. Bailey v. Tillinghast, 99 Fed. Rep. 801; DeForest v. Thompson, 40 Fed. Rep. 375.

Where the bill is filed for the purpose of obtaining final relief, and where discovery is only incidental to that end, there can be no demurrer to the discovery only, for the reason that if

Argument for Appellees.

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the discovery be material in support of the relief, and the complainants be entitled to the relief, the defendants must answer. Ex parte Boyd, 105 U. S. 647; Brown v. McDonald, 133 Fed. Rep. 897; McMullen Lumber Co. v. Strother, 136 Fed. Rep. 301; Bates Fed. Eq. Pro., pp. 128-130; Gas Company v. Indianapolis, 90 Fed. Rep. 197; Rider v. Bateman, 93 Fed. Rep. 31; Adams Eq. Jur., American ed., p. 444.

The examination of the officers of the defendant corporations as witnesses can in no event be the exact equivalent of a discovery by the corporations themselves under their corporate seals. Bank v. Heilman, 66 Fed. Rep. 184; Pom. Eq. Jur. § 199; Evans v. Lancaster, 64 Fed. Rep. 626; McClaskey v. Barr, 40 Fed. Rep. 559.

A court of equity will give effect to a demand against the estate of a deceased person in respect of a wrongful act done by him if the wrongful act has resulted in a benefit capable of

a being measured pecuniarily, if the demand is of such a nature as can be properly entertained by the court. Bishop of Winchester v. Knight, 1 P. Wms. 406; Garth v. Cotton, 1 Dickens, 183; Marquis of Lansdowne v. Marchioness Dowager of Lansdowne, 1 Madd. 116; Phillipps v. Homfray, 24 Ch. D. 439; Lee v. Alston, 1 Br. C. C. 194; Monypenney v. Bristow, 2 Russ. & M. 117; Kennedy v. Creswell, 101 U. S. 641, 645; Pomeroy Eq. Jur. § 156; Beverly v. Rhodes, 86 Virginia, 416.

A creditor not a citizen of the State of the decedent and his representative can proceed in the United States court against such representative to establish his claim therein by judgment or decree against the representative, but where the estate is being administered in a probate court, the Federal court, after adjudicating the claim, must remit the complainant to that court for distribution. Byers v. McAuley, 149 U. S. 608. See also Martin v. Fort, C. C. A. 83 Fed. Rep. 19, 22; Wickham v. Hull, 60 Fed. Rep. 329; Hale v. Tyler, 115 Fed. Rep. 838; Walker v. Brown, 165 U. S. 655.

Mr. L. O. Evans, with whom Mr. A. J. Campbell, Mr. A. J.

200 U. S.

Argument for Appellees.

Shores, Mr. C. F. Kelley and Mr. John F. Forbis were on the brief, for appellees:

The complainant has a full, complete and adequate remedy at law in an action for damages. From the bill, and as claimed by appellant's counsel in the lower court, the inadequacy of the legal remedy consists only of the trouble and difficulty of unraveling before a jury the methods adopted by the appellees in creating corporations, transferring their property from one to the other, and in various other ways seeking to cover up their tracks; and that these devices could only be brought to light through an inspection of the books and records of the corporations, the contention of appellant being that it would not be so difficult to obtain and produce such complicated evidence in a suit in equity.

It is not a case where it is necessary to bring in a large number of defendants in order to adjust their rights among themselves as well as complainant's rights as to each of them. Under the allegations of this bill the defendants have no claims to be adjusted as between themselves. Under the bill they were wrongful trespassers, each and all of them, and each directly responsible for the injuries sustained.

These allegations do not lay the foundation for equitable relief. The remedy is at law. Buzard v. Houston, 119 U. S. 347; Insurance Co. v. Bailey, 13 Wall. 616; Dowell v. Mitchell, 105 U. S. 430; Parkersburg v. Brown, 106 U. S. 500; Amber v. Choteau, 107 U. S. 586; Litchfield v. Ballou, 114 U. S. 190; Root v. Railway Co., 105 U. S. 189; Thompson v. Allen County, 115 U. S. 550; Texas Pac. Ry. Co. v. Marshall, 136 U. S. 393; Hipp v. Babin, 19 How. 278; Dumont v. Fry, 12 Fed. Rep. 21; White v. Boyce, 21 Fed. Rep. 228; Alger v. Anderson, 92 Fed. Rep. 696; Pomeroy on Equity Jurisprudence, 2d ed., vol. 1, § 178; Foster's Fed. Prac. § 12; Bates' Fed. Eq. Prac. 188.

The complainant, presenting only an unliquidated claim for damages, has no standing in a court of equity. Before a party can come into a court of equity and seek relief he must reduce

Argument for Appellees.

200 U.S.

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his claim, whether it be for unliquidated damages or upon contract, to judgment. In other words, his right to a recovery

, at all, whether it be in damages, for tort or a recovery upon contract, is a legal right, and one triable by jury. And this right must be determined, and a judgment entered before he can seek the interposition of equity. Swan Land and Cattle Co. v. Frank, 148 U. S. 603; Cates v. Allen, 149 U. S. 451; Scott v. Necley, 140 U. S. 106.

Equity will follow and declare a trust in the property for the benefit of the real owner, where money or other property has been misapplied, only in cases where the misapplication or misappropriation has been done by parties standing in some fiduciary relation to the wronged party. 1 Perry on Trusts, 5th ed., $ 128, p. 170, and cases cited; Hawthorn v. Brown, 3 Sneed (Tenn.), 462.

A bill for discovery alone cannot be maintained, and where the case is for relief and discovery, if the facts stateil are insufficient to entitle the coniplainant to relief, the discovery must fail also. Preston v. Smith, 26 Fed. Rep. 885; l'enner v. Atchison, T. & S. F. R. Co., 28 Fed. Rep. 581; Everson v. Equitable Life Assur. Co., 68 Fed. Rep. 258, aff'd 71 Fed. Rep. 570; Cecil Nat. Bank v. Thurber, 59 Fed. Rep. 913; McLanahan v. Daris, 8 How. 170.

No equity jurisdiction arises by reason of the fact that Margaret P. Daly, appellee, is sued as executrix of the estate of Marcus Daly. Even a creditor of an estate is not such a cestui

a que trust of the executrix as will enable him to maintain a bill in equity against the administrator for the establishing and payment of his claim, merely on the ground of trust relation, in the absence of charges of fraud, maladministration or nonadministration, on the part of the executrix. Walker v. Brown, 58 Fed. Rep. 23, aff'd 63 Fed. Rep. 204.

There is no relation between the complainant and the defendants, or any of them, which would support an action for accounting. The defendants are charged in the bill as joint tort feasors. Complainant's action upon the facts alleged is

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for trespass and conversion or trover. To maintain an action for accounting there must be between the parties either a privity, by contract or consent, or a privity in law. Against a defeasor or mere wrongdoer no action for accounting will lie. The fact that the controversy embraces a series of torts, each of which would have to be proven by separate and distinct evidence, would not alter the nature of the case. Whitwell v. Willard, 1 Met. (Mass.) 216; Stringham v. Winnebago County, 24 Wisconsin, 594; Conklin v. Busch, 8 Pa. St. 514; Brinsmaid v. Mayo, 9 Verinont, 30.

Complainant is not entitled. to discovery under the allegations of the bill of complaint.

Since the acloption of $ 858 et seq., Rev. Stat., the parties having full remely in the law action, and there being no necessity for a recourse to equity, the courts of chancery, and particularly the Federal courts have clearly established the doctrine that a bill for discovery alone cannot be maintained. Safford v. Ensign Mfg. Co., 120 Fed. Rep. 480; Brown v. Swan, 10 Pet. (U. S. ) 497; Rindskoff v. Platto, 29 Fed. Rep. 130; Preston v. Smith, 26 Fed. Rep. 885; United States v. McLaughlin, 24 Fed. Rep. 823; Ex parte Boyd, 105 U. S. 647; Paton v. Majors, 46 Fed. Rep. 210; Field v. Hastings & Bradley Co., 65 Fed. Rep. 279; Home Ins. Co. v. Stanchfield, 1 Dillon, 420; Fed. Case No. 6660.

The bill is so general, uncertain and indefinite that it presents no grounds for relief or discovery in equity. It must state clearly and precisely the facts essential to make out its cause. Story Eq. Pl. $ $ 253, 257; Tillinghast v. Chase, 121 Fed. Rep. 435.

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MR. JUSTICE PECKHAM, after making the foregoing statement, delivered the opinion of the court.

Although there is a liberal use in the bill in this case of averments in regard to fraud, conspiracy and violation of trust, of which the pleader avers the defendants have been guilty,

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