492
FEDERAL nEPORTER.
in that litigation, and that the date is a matter of public history. "Courts will take;notice of whatever is generally known within the limits of their jurisdiction; and if the judge's memory is at fault, he may refresh it by resorting to any means for that purpose which he may deem safe and proper." Brown v. Piper, 91 U. S. 37. Courts also take judicial notice of matters of public history which affect the whole people. Bank v. Earle, 13 Pet. 519, 590; 1 Greenl. Ev. § 5. It is true that the building and completion of the Union Pacifiu Railroad were facts of great public importance. It was undertaken at a critical period in the history of our country, as a military necessity for the preservation of its territory, and flS a most important instrumentality jor the common benefit of widely separated states. "It was a natioilal work, originating in national necessities, and requiring national assistance." U. S. v. Railroad Co., 91 U. S. 72. But I have serious doubts whether the date of the completion of a railroad is within the class of events of public history of which courts ,are permitted to take judicial notice in the decision of a question of the character which is here presented. I have more serious doubts whether, without evidence, it can he judicially assumed that, although the road was completed for certain purposes in 1869, and was completed to the satisfaction of the commissioners appointed by the government in 1874, either Of those dates can be taken as the date when expenditure by the contractors ceased, and they were discharged from theirobligations by the company, and the duty of accounting only remained. It is not improbable that the road was in running order for trains before the necessary depots, complete equipment, rolling stock and side tracking had been finished; and it would be imprudent to infer that becau:;;e trains habitually ran over the road, and it had been accepted by the government, therefore the contract had been completelyperfonned. I am therefore of opinion that the question of the effect ofthe statute of limitations or of ]achesor of staleness does not arise upon the face of the bill. The second cause of demurrer is sustained.
MERCHANTS' NAT.
BANK OF CHICAGO
et ale "'.
SABIN
et ale
(OlTcuit Oourt, D. ltlinne8ota. April 4, 1888.)
ClUcDITOR'S
A bill by aJ,u.d.gIDe. nt creditor fordi.scoverYShoWin g that. when the execution . was returned'l1nsatisfled, and when the bill was tiled, there was property. of the creliltor, subject to levy on execution, fails to within the . show that the legal remedy has been exhausted, and is demurrable.
Bn.L HAUSTED. '
FAILURE TO SHOW 'fRAT LEGAL REMEDY HAS J!EEN
Ex-
In Equity'. On demurrer to qil1! . The plaintiffs, the Merchants' National Bank, of Chicago, and First National Balik, oNthaca, are j udgment creditors'of the firm' ofJ. H. Towns-
NAT. BANK V. SABIN.
498
hend & Co., composed of the defendants James H. Townshend, D. M. Sabin, and George M.Brush. Their judgments were recovered and docketed in this court January 6, 1886, in suits on promissory notes made by the firm of J. H. Townshend & Co. to the order of the Northwestern Manufacturing & Car Company, and by that company indorsed. This bill is exhibited against the partners in the firm, against Maria Louise Brush, wife of the defendant George M. Brush, and against R.'B. Langdon, the Minnesota Thresher Company, a corporation, and J. C. O'Gorman. The bill alleges that on March 16, 1887, execution on each judgment was issued against the property of J. H. Townshend & Co., and of each partner, and that on March 23, 1887, the marshal made return thereof; "that said defendants, nor either of them, had any goods, chattels, lands, tenements, or real estate within said district whereupon to levy and satisfy the said executions, or any part thereof;" and that said executions are wholly unsatisfied. In respect to the defendant Sabin, for whom this brief is filed, the bill further alleges, as follows: That Mr. Sabin is or claims to be a creditor of the Northwestern Manufacturing & Oar Company , (a corporation, which isinsolvent, and whose property is in the hands of a receiver appointed May 10, 1884, by the district court for Washington county, Minn.,) upon claims of $128,893.33 and $736,000, and $3,500 respectively, amounting in all to $868,393.33; that these claims have been duly filed with the receiver, but are contested and undetermined; that the stock, property, and assets of the car company are "very nearly adequate to pay and discharge all of the just debts and liabilities, " and that the claims of Mr. Sabin, if sustained, are worth at least $60.000. And the plaintiffs say that if this court will appoint a receiver of Mr. Sabin's property, and order such receiver to sell these claims, the plaintiffs will procure a bill therefor in excess of The bill further alleges that the defendant thresher company is a corporation organized for the purpose (among others) of buying the property, assets, indebtedness, and stock of the car company, and for manufacturing of steam-engines, etc., with an authorized capital divided into $4,000,· 000 of preferred stock, and $3,000,000 of common stock; that its plan is to issue its preferred stock in exchange for claims against thecal' company, and its common stock in exchange for preferred stock of the car company, share for share. The bill further states that on May 10, 1884, Mr. Sabin was a man of large means, and, among other things, was the owner of or equitably interested in a majority of the $4,000,000 capital stock of the car company; was a partner in J. H. Townshend & Co., and was also beneficially interested in many other enterprises unknown to the plaintiffs; that defendants Townshend, Sabin, and Brush have property and other equitable interests and things in adion of the value of more than $2,000, exclusive of all prior claims thereon. but which the plaintiffs have been unable to reach by execution on their judgments. The bill further states that the defendant Sabin has recently become the owner of, or equitably and beneficially interested in, a large amount of the stock of the thresher company, which stock· is of great value, and has not been transferred to Mr. Sabin on the books of the company,.and
.Dleansof accurately. the .amQunt 'stock .so owned :hy¥r. Sabin, or in which he is so interested; that Mr. Sabin, unlessrestrainedby injunction, will convert his the car into preferred stock of the thresher company, :and will sell or dispose of such stock so as to and delay plaintiffs. in collecting their judgments. The bill furtlwr alleges that the .firm of J. H. Townshend &:Co., Qeillg a debtor to the First National Bank, :of Stillwater, in more than 615,000, that bank recoverel1 judgment in Dakota territory, and levied upon elevators in that .timitory belonging to the firm, sold th em o,n, execution, and became the purchaser; and that afterwards the bank sold and conveyed the elevators to the defendant Maria Brush, wife of defendant George M., for a large conllideration, all of which was paid by defendants Sabin and George.M·.,Brush, for whom she now holds the title in trust, all for the purposeo! defrauding the plaintiff and other creditors. : The bill further alleges that defendant Sabin was indorser of the car company's paper to the amount of OVer $1,000,000, and was rendered insolvent by the failure. That defendant O'Gorman, then a man of moderate means, hilS since acquired and now holds property, (whether real or personal is not. stated) worth over $50,000; but that all ofithus been bought and paid for by Mr. Sabin and is held upon a .secret trust for him· by Mr. Q'Gorman, who is his confidential friend, . /tnd em ploye. The. bill further alleges. that Mr. Sabin has, ,without lilonl!ideration, transferred a large aUlount. of real or personal property:, or both, owned by him or in which he had a beneficial interest, to R.B. Langllon, with intent todefrjl.ud his creditors. NoattempUs made to ic1entjfy the property. The bill also alleges (page 18}tha:t the derendants' Townflhend , Sabin, and George M. Brush, or someaf them,are owners of or in some way interested in some real estate chattels, or some contracts for real estate, or in the rents, etc., or in the stoc:\{ of some corporation; andthat some some money in coin or bank bills, and have some money for payment Qf money held by some other person or persons in trust for them, orsome·of them; and tha.tif they, or either of them, made any trl,l.llsfer of any part of their property or affects, the plail1tiffsbelieve that. merely colorable, lind made to defraud creditors. To this bill t.4eUefendantD.M. Sabin has demurred for want of also the .defendants. Olapp lrlacartney, for complainAnts. George B. YO'/JlTl,g,Searles, Ewing &: Gail, Fayette Marsh, and Woods, Hahn Kingman, for.defendants· . Gaier sta.tini! thefactsasabove.) A court of equity will give reUl;lOn favoro,f,the only when the remedy at law is inadequate andu()t effectual to reach 'property by execution, OI: when there ·is,some obstrootion to thE:l enforcement afthe legalremed8" The right to relief.. pr:esent suit is. clllimed upon the ground that the .remedyhl\$l)een ,ppfsued and the debtor· has propnot subject to an execution at law, but such as can be
MERCHANTS' NAT·. BANK 11. SABIN.
495
reached in equity. The complainant obtained judgments, and tions were issued and retrirned by the officer.. The debt is not paid, or any part of it, and relief only be obtained,. if at all, by the issuance of an alia.s execution, or ill equity, by a creditor'sbilI: The latter course is pursued, and to entitle .the complainant to pursue this remedy it must appear in the bill that a judgment was obtained, and that execution issued and was returned by the officer to whom it was directed unsatisfied. The all.egations in the bill definitely describe the judgme.nts and tions, and the return upon each of the latter is in the following words: sald defendants, nor either of them, had any goods, chattels, lands, tenements, or real estate, withhl said district whereupon to levy and satisfy the said executions, or any part thereof;" . It is necessary to have the execution returned before any relief can be and itrnust be alleged in the bill that the .legal remedy has. been exhauste.d by creditors. without being able to obtain satisfaction of the debt. If the return ofthe officer upon the execution, set forth in the bill of complaint shows the remedy afforded is ineffectual it is sufficient. how: ,d.iligent the officer is in his effort to find The .court does not property sUbject tolevy,'snd hlsi'eturn is conclusive; but it must appear, however, by the allegations in the bill, that the legal remedy is not fective. A party who seeks a court of equity, in a case like t!lis one, is required to show in his bill distil'lctlYllll the facts which entitle him to such aid, for the court will not grautthe relief claimed, or interfere if there isia :plain and adequate remedy at law. The bill must charge that the judgment creditor cannot discover and reach the debtor's property interests at law. In this· Lillof complaint it appears that the assets of the debtor sought to be appropriated to the satisfaction of the debt are subject to levy on execution under the statute of the state of MinneBota,and that the creditor had knowledge of them at the time the officerinade his return. The legal remedy ,for ought that appears to the contrary, is full and adequate, and has not been exhausted. It is essential to the jurisdiction of this court in a suit for discovery and relief; on the ground that the legall'emedyof the creditor is exhausted, that the bill must charge that the judgment debtor nas no property subject to execution at law. and if the plainants charge and show in their bill that property of the debtor subject to execution existed at the time he filed his bill,he does not require a a discovery' and relief in a court of equity. Such is the complainant's condition, and the demurrer must be sustaineq., and it is so ordered. The demurrers interposed by the other defendants are also sustained, and the hill dismissed.
496
FEDERAL REPORTER.
NEAL t1. ,FOSTER
et al. April 5, 1888.)
, (Oiruit Oourt, D. ()regon.
1.
EQUlTy:-hEADING-CRoss-BILL-RIGH'l' TO FILE-DEMURRER.
A cross·bill is a mode of obtaining relief or making a defense to which a defendant may resort as agains.t the plaintiff or a co-defendant in the original bill, without leave of the court, and the question of his right to file the saBle when and as it may be done, may be made and determined on demurrer. '
S.
BAME-TIME TO ]!'rLE-All'TER PUBLICATION OF TESTIMONY.
Where a cross-bill does not seek to introduce new or,further testimony on the matters in issue in the original suit, it may be filed after publication has passed, or the testimony thereabout is taken.
As the testimony in equity cases is no longer taken secretly or kept from the inspection of the parties until what was called publication, the mere fact of publication having passed or,the testimony being closed in the original luit, ought not to prevent a defendant from filing and maintaining a bill even touching mattetll in issue in said suit. (8yllabua by eM Gourt.)
8.
SAME.
In Equity. On demurrer tocross.,biU. ,Action to set aside conveyances" Earl 0., BroTlXJ,ugh, for plaintiffs. , Ja'fM8 K·. Weatherford, for defendant. DEADY, J. The originall>il1 in this case was filed on July 1, 1886, against James H. Foster, J{)hnA. Crawford, William Crawford, Ashby Pearce, John R. Baltimore, J. L. Tiles, E. Walden, and W. H. Goltra, andthe;object ofit was to have certain conveyances of real property sit,uate in Albany, Linn county, theretofore made by Foster to the Crawfords and Ashby I'earce, setal;iide as fraudulent. The other parties, including Goltra, were made defendants in the bill, because they. were, or claimed to be, judgment creditors of Foster's, and .in their answers they set up their claims accordingly. The Crawfords and Fos,ter answered the bill, denying that the conveyances were fraudulent. The plaintiff replied, and on October 7, 1886, the case was referredby the circuit judge to a master, who on August 29, 1887, filed evidence taken by him, and also his conclusion of fact andltl,w thereon, as directed by the order of reference. . In his answer Goltra states that in February, 1886, he obtained judg" ment in the state circuit court for the county of Linn against Foster on Q.ivers claims for the sum of 816,118.84, for which he claims a lien on the property in q u e s t i o n . ; On November 14, 1887, the defendants Foster and John A. and William Crawford, had leave to file what is 'ltyled therein, "a supplemental cross-bill," in which it is alleged as a bar to Goltra's claim to enforce his judgment against the property in question; that on February 10, 1886, he commenced a suit in the state circuit court aforesaid against the plaintiffs in the cross-bill to enforce the lien of his judgment against the property in question, on the ground that the conveyances thereof by Foster