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fore the date of the day of the appointment of the receivers in September, 1902, or the receivers after their appointment, have instituted separate suits at law in order to recover the assessment made by the board on September 12, 1901, and many of these suits in which the plaintiffs have not hitherto been able to reduce the claims to judgment, are still pending in the various courts in the eastern district of Pennsylvania. Your petitioner is now advised by counsel that rather than press all of the existing suits (to which certain technical defences growing out of the form of the assessment by the board have been made), and rather than bring new and separate suits against the various holders of the preferred stock, it would be much more advantageous and expeditious and tend to a prompter termination of the receivership for him to file a single bill in equity in this case against all of the holders of the preferred stock who are residents of the eastern district of Pennsylvania who can be properly included in such a bill, and thus avoid much litigation, delay and expense,"

and praying

"for leave to discontinue such of the pending suits at law against the various stockholders who have not paid the assessment as he may be advised by counsel, and for leave to file a single bill in equity in this cause against such holders of the preferred stock of the American Alkali Company who have not paid the assessment aforesaid as are residents of the eastern district of Pennsylvania, and as, in the opinion of counsel, should be included in such bill."

On this petition the court below, September 18, 1906, granted an order in conformity to its prayer, and pursuant to this order this suit was brought. The facts enumerated show that this suit, while not brought by petition but by bill, is nevertheless part and parcel of the proceedings theretofore instituted in Pennsylvania in aid of the proceedings had in New Jersey for winding up the affairs and distributing the assets of the American Alkali Company. If the bill as filed came within the equitable jurisdiction of the court below, that jurisdiction could not be defeated by subsequent payments of the assessment made by some of the defendants. Under these circumstances did or not the bill fall within the equitable jurisdiction of the court below? Aside from the prayer for further or other relief and for subpoena, the bill contains only the following prayer:

"That it be decreed that each of the defendants be ordered to pay to the plaintiff the assessment of $2.50 per share authorized by the United States circuit court for the district of New Jersey on August 31, 1905, and levied by plaintiff on September 19, 1905, upon the number of shares of preferred stock of the American Alkali Company set opposite their respective names, together with interest thereon from April 5, 1906."

Waiving for present purposes the question whether the assessment directed in New Jersey August 31, 1905, and there levied by the surviving receiver September 19, 1905, was operative with respect to preferred stockholders residing in Pennsylvania, and not within the jurisdiction of the circuit court in New Jersey, and on the assumption that the above question should be answered in the affirmative-a point on which we express no opinion-the claims made by the bill against the defendants are legal, in contradistinction to equitable demands, for which actions at law might be brought against the several defendants respectively. The bill does not pray for an account, nor does it involve contribution of any kind between the defendants. If it can be sustained the equitable jurisdiction must rest upon the avoidance of a

multiplicity of suits and special circumstances rendering a resort to equity proper. While it may be urged that it would be of advantage that the claims made against the several defendants should all be embraced in one suit to prevent multiplicity, it may also, on the other hand, be urged that such a suit, while single in form, is but a conglomeration of suits for legal demands involving different issues and different proofs and resulting in saving, if any, but little expense. Nor does the fact that this bill is ancillary to the receivership proceedings in Pennsylvania and New Jersey furnish any justification, so far as jurisdiction is concerned, for resorting to a suit in equity rather than having recourse to actions at law. For the usual jurisdictional requisites of diversity of citizenship and a controversy involving a jurisdictional amount have no application to ancillary proceedings whether in equity or at law.

At the threshold of the discussion of the question of jurisdiction we are confronted with the case of Hale v. Allinson, 188 U. S. 156, 23 Sup. Ct. 244, 47 L. Ed. 380, which went up from this circuit. In that case it was held, among other things, that a receiver of an insolvent Minnesota corporation, appointed by a court of equity in that state, could not maintain a single suit in equity in the circuit court of the United States in Pennsylvania against all of the Pennsylvania stockholders of the corporation to enforce the statutory liability of each defendant as a stockholder, on the ground that a single action would prevent a multiplicity of suits, or on the ground that it was an ancillary or auxiliary proceeding brought in aid of and to enforce an equitable decree in the proceedings in Minnesota, in which the Pennsylvania stockholders had been named as defendants with all the other stockholders, the Pennsylvania stockholders not having been served. with process and not having appeared. The court in discussing the first point said:

"Cases in sufficient number have been cited to show how divergent are the decisions on the question of jurisdiction. It is easy to say it rests upon the prevention of a multiplicity of suits, but to say whether a particular case comes within the principle is sometimes a much more difficult task. Each case, if not brought directly within the principle of some preceding case, must, as we think, be decided upon its own merits and upon a survey of the real and substantial convenience of all parties, the adequacy of the legal remedy, the situations of the different parties, the points to be contested and the result which would follow if jurisdiction should be assumed or denied; these various matters being factors to be taken into consideration upon the question of equitable jurisdiction on this ground, and whether within reasonable and fair grounds the suit is calculated to be in truth one which will practically prevent a multiplicity of litigation and will be an actual convenience to all parties, and will not unreasonably overlook or obstruct the material interests of any. The single fact that a multiplicity of suits may be prevented by this assumption of jurisdiction is not in all cases enough to sustain it. It might be that the exercise of equitable jurisdiction on this ground, while preventing a formal multiplicity of suits, would nevertheless be attended with more and deeper inconvenience to the defendants than would be compensated for by the convenience of a single plaintiff, and where the case is not covered by any controlling precedent the inconvenience might constitute good ground for denying jurisdiction. We are not disposed to deny that jurisdiction on the ground of preventing a multiplicity of suits may be exercised in many cases in behalf of a single complainant against a number of defendants, although there is no common title nor community of right or interest in the subject matter among such defendants, but where there is a community of interest among

them in the questions of law and fact involved in the general controversy. Is there, upon the complainant's theory of this case, any such common interest among these defendants as to the questions of fact that may be put in issue between them and the plaintiff? Each defendant's defence may, and in all probability will, depend upon totally different facts, upon distinct and particular contracts, made at different times, and in establishing a defence, even of like character, different witnesses would probably be required for each defendant, and no defendant has any interest with another. The facts surrounding the present case and the reasons for holding that they do not bring it within the principle of preventing a multiplicity of suits are so well stated in the opinion of McPherson, District Judge, in this case [C. C.] 102 Fed. 790, that we quote the same. After speaking of the alleged conclusiveness of the Minnesota decree upon the question therein decided, the judge continued:

***Thereafter a different question arose for determination, namely, can the assessment be lawfully enforced against the individuals charged therewith? And in this question the interest of each stockholder is separate and distinct. The bill asserts the conclusiveness of the Minnesota decree upon the defendants, so far as the necessity for the assessment and the amount charged against each stockholder are concerned. Bank v. Farnum, 176 U. S. 640 [20 Sup. Ct. 506, 44 L. Ed. 619]. Assuming that position to be sound (and, if I do not so assume it; if these questions are still open for determination, so far as the Pennsylvania stockholders are to be affected-the bill must fail for want of necessary parties), it is clear that only two classes of questions remain to be decided: The first is whether a given stockholder was ever liable as such; and the second is whether, if he were originally liable, his liability has ceased, either in whole or in part. Manifestly, as it seems to me, the defendants have no common interest in these questions, or in the relief sought by the receiver against each defendant. The receiver's cause of action against each defendant is, no doubt, similar to his cause of action against every other, but this is only part of the matter. The real issue, the actual dispute, can only be known after each defendant has set up his defence, and defences may vary so widely that no two controversies may be exactly or even nearly alike. If, as is sure to happen, differing defences are put in by different defendants, the bill evidently becomes a single proceeding only in name. In reality it is a congeries of suits with little relation to each other, except that there is a common plaintiff, who has similar claims against many persons. But as each of these persons became liable, if at all, by reason of a contract entered into by himself alone, with the making of which his co-defendants had nothing whatever to do, so he continues to be liable, if at all, because he himself, and not they, has done nothing to discharge the liability. Suppose A to aver that his signature to the subscription list was a forgery; what connection has that averment with B's contention, that his subscription was made by an agent who had exceeded his powers? or with C's defence, that his subscription was obtained by fraudulent representations? or with D's defence, that he has discharged his full liability by a voluntary payment to the receiver himself? or with E's defence, that he has paid to a creditor of the corporation a larger sum than is now demanded? These are separate and individual defences, having nothing in common; and upon each, the defendant setting it up is entitled to a trial by jury, although it may be somewhat troublesome and expensive to award him his constitutional right. But, even if the ground of diminished trouble and expense may sometimes be sufficient, I should still be much inclined to hesitate before I conceded the superiority of the equitable remedy in the present case. Such a bill as is now before the court is certain to be the beginning of a long and expensive litigation. The hearings are sure to be protracted. Several, perhaps many, counsel will no doubt be concerned, whose convenience must be consulted. The testimony will soon grow to be voluminous. The expense of printing will be large. The costs of witnesses will not in any degree be diminished, and, if some docket costs may be escaped, this is probably the only pecuniary advantage to be enjoyed by this one cumbersome bill over separate actions at law.' We are in accord with the views thus expressed, and we therefore must deny the jurisdiction of equity, so far as it is based upon the asserted prevention of a multiplicity of suits."

In discussing the contention that the suit should have been maintained on the ground that it was an ancillary proceeding the court said: "All the non-resident stockholders were but nominal parties in the Minnesota suit. * The complainant claims that the non-resident stockholders are bound because the corporation was a party, not because they were parties to the suit. There is no decree or judgment, therefore, against the stockholders who were non-residents. The claim that they are bound by certain findings of fact by the court, because of the corporation being a party and in law representing them to that extent, assuming it for this purpose to be well founded, is far from transforming a decree against resident stockholders into one against non-residents who were not parties to the action. Even assuming that the decree concludes them upon certain facts found in that action where there was no decree against them, still, another action in another jurisdiction to enforce their liability as originally created by statute cannot within any reason be said to be one to enforce the former judgment. Indeed it is because of the very fact that no judgment was or could be obtained against the non-resident stockholders in the Minnesota suit that the Pennsylvania Federal court is asked to exercise its jurisdiction and give judgment against the defendants on their statutory liability."

The case of Hale v. Allinson has never, so far as we are aware, been overruled; nor have the views expressed in the opinion been questioned by the Supreme Court. That case supports the contention that the court below was without authority to entertain the present bill, unless the case before us can be substantially distinguished from it in principle. We shall refer to some of the cases bearing upon the subject. In White v. Ewing, 159 U. S. 36, 15 Sup. Ct. 1018, 40 L. Ed. 67, the receiver of an insolvent corporation presented a petition stating that a large proportion of its assets consisted of promissory notes given for land purchased from it, upon which liens had been retained to secure their payment, and asked and obtained leave to proceed by bill or petition in a single suit against all the persons indebted to the corporation on such notes. The receiver pursuant to this leave filed a bill against all of such alleged debtors, in which it was, among other things, alleged that special liens were retained in each case in the deed to the purchaser to secure the deferred payments of the purchase money, and the court was asked to enforce such liens by sale of the lands for the satisfaction of the balance of the purchase money due separately from each and all of the defendants upon their respective notes. No exception was taken to the form of the bill by demurrer or otherwise; and nearly all of the defendants answered denying their liability. A decree having been entered for the complainant, an appeal was taken to the circuit court of appeals and the following question was certified to the Supreme Court:

"Had the circuit court of the United States in a general creditor's suit properly pending therein for the collection, administration, and distribution of the assets of an insolvent corporation, the jurisdiction to hear and determine an ancillary suit instituted in the same cause by its receiver in accordance with its order, against debtors of such corporation, so far as in said suit the receiver claimed the right to recover from any one debtor a sum not exceeding $2,000."

This question was answered in the affirmative; the court, among other things, saying:

"While the receiver prayed in his petition to bring in all the debtors by bill or petition in one suit, alleging that it was so requested by creditors, in

order to avoid the expense of a separate suit against each; and the bill was brought in that form against 130 defendants, who were charged to be severally indebted upon notes given for lots of land purchased from the company, no exception was taken to the form of the bill by demurrer or otherwise, but the defendants answered, denying their liability. The question certified does not, as we understand it, demand the opinion of this court as to whether a single bill against all these defendants would lie for the amounts severally due by them (upon which point we do not feel called upon to express an opinion); but whether so far as in said suit the receiver claimed the right to recover from any one debtor a sum not exceeding $2,000, the court has jurisdiction to render a judgment against them."

White v. Ewing is different from the case before us in several particulars. It involved the enforcement of liens against real estate which is a subject of equitable cognizance. It passed upon the right of the receiver to recover from any one debtor a sum not exceeding $2,000; the amount decreed against the appellants here being $2,500 with interest from a certain date. No question was raised whether a single bill against all of the defendants would lie for the amounts severally due from them, on which point the Supreme Court expressly refrained from expressing an opinion. It is evident that White v. Ewing is not an authority to support the contention of the appellee. Wyman v. Bowman, 127 Fed. 257, 62 C. C. A. 189, decided by the circuit court of appeals for the eighth circuit is one of the leading cases on the subject of equitable jurisdiction founded on the prevention of a multiplicity of suits. In that case it was held that a receiver of an insolvent corporation of Nebraska properly filed a single bill against a number of defendants to enforce the collection of their unpaid subscriptions to the stock of that corporation. It was held that where there is a common and decisive point of litigation between a complainant and several defendants separately liable a bill in equity may lie against all of them. But the court carefully distinguished that case from such a case as that before us, and in referring to Hale v. Allinson, among other things, said:

"In that case there was no community of interest among the defendants in the controversies presented for litigation, and the convenience of the complainant in pursuing the single suit was overcome by the inconvenience of such a course to the several defendants. In this case there is a community of interest among the defendants in every question of law and of fact present. ed by the controversies, and the convenience of all parties will be better served by a determination of them here in a single suit, than by repeated decisions of them in nine separate actions at law. * In the suit under consideration, every point of litigation between complainant and the defendants is common to all the latter. * * * The same facts proved by the same evidence condition the defenses of each of the defendants, and the same questions of law are presented by each of them for our determination."

In Bitterman v. Louisville & Nashville R. R. Co., 207 U. S. 205, 28 Sup. Ct. 91, 52 L. Ed. 171, a bill had been filed for an injunction to restrain a number of ticket brokers or scalpers from dealing in nontransferable round trip tickets over the lines of the railroad company. There was no connection or common interest in the suit between the defendants. The case came before the Supreme Court on certiorari to the circuit court of appeals which decreed that the defendants should be enjoined. The Supreme Court in affirming the decree rec