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Cutting v. Gilbert.

ation I have been able to give to the subject, I have come to the conclusion that the plaintiffs are not liable to the tax. But other considerations must be taken into view on this motion.

This is a bill of peace, to quiet the rights of parties, and to put an end to further litigation. The bill is founded on the idea that all persons in business as brokers, or who are bankers doing business as brokers, charged with the tax in question, have such a unity or joinder of interest in contesting it, that all may join in the bill for that purpose; and that as the parties are so numerous as to make it inconvenient to join all of them, a determinate number may appear in the name of themselves and for the rest. I have not been able to concur in this view. The interest that will allow parties to join in a bill of complaint, or that will enable the Court to dispense with the presence of all the parties, when numerous, except a determinate number, is not only an interest in the question, but one in common in the subject matter of the suit; such as the case of disputes between the lord of a manor and his tenants; or between the tenants of one manor and those of another; or where several tenants of a manor claim the profits of a fair; or in a suit to settle a general fine to be paid by all the copyhold tenants of a manor, in order to prevent a multiplicity of suits. In all these and the like instances given in the books, there is a cominunity of interest growing out of the nature and condition of the right in dispute; for, although there may not be any privity between the numerous parties, there is a common title out of which the question arises, and which lies at the foundation of the proceedings. There are analogous cases, also, where such a bill may be filed-such as, where a person has an exclusive right of property or franchise which is controverted by numerous persons, as in the case of the Corporation of York claiming an exclusive right of fishing in the River Ouse for nine miles, and which right was contested by different lords of manors, and persons resident on the banks of the river, as the litigation would have been endless, if the Corporation had to bring actions at law. The same principle is found in the case of The City of London v. Perkins, (4 Bro.

Cutting v. Gilbert.

Parl. Cas., 158,) to establish a duty or tax against certain dealers in the city; and also in a suit on behalf of a charity for a rent-charge against the ter-tenants of the land.

In the case before me, the only matter in common among the plaintiffs, or between them and the defendants, is an interest in the question involved, which alone cannot lay a foundation for the joinder of parties. There is scarcely a suit at law, or in equity, which settles a principle or applies a principle to a given state of facts, or in which a general statute is interpreted, that does not involve a question in which other parties are interested, as for instance, the doctrine of trusts, and the statutes of descents, of frauds, of wills, and the like; yet no lawyer would contend that such an interest would justify a joinder of parties as plaintiffs, in a case arising under the law of trusts, or under any of the statutes mentioned. The same may be said of questions arising under the revenue laws, such as the tariff and the excise laws, and which are the subject of litigation in the Courts almost daily. Large classes of persons, other than the parties to the suit, are interested in the questions involved and determined. To allow them to be made parties to the suit would confound the established order of judicial proceedings, and lead to endless perplexity and confusion..

I am satisfied, therefore, that this bill cannot be sustained, on account of the joinder of improper parties as plaintiffs. But, as this error may be corrected, and as there are other cases before me in which it does not exist, I shall proceed to express my views upon them. They are cases in which the bill is filed by the party or firm against whom the tax is threatened.

I do not doubt the jurisdiction or power of the Courts to interfere, and prevent the threatened imposition of the tax, if it is illegal. The second section of the Act of March 2d, 1833, (4 U. S. Stat. at Large, 632,) known as the Force Act, confers jurisdiction in express terms, and has been applied to the Act of 1864, by its fiftieth section. And jurisdiction had previously, and has since, been upheld and exercised upon general principles of equity jurisprudence. (Osborn v. Bank of

Cutting v. Gilbert.

United States, 9 Wheaton, 738; State Bank of Ohio v. Knoop, 16 Howard, 369; Dodge v. Woolsey, 18 Id., 331; Jefferson Branch Bank v. Skelly, 1 Black, 436).

The granting of the writ of injunction, generally speaking, rests in the exercise of the sound discretion of the Court. Where the remedy at law is adequate, it is always refused. It will be granted to prevent a multiplicity of suits and vexatious litigation, where the right has been established at law; and, where the right is plain, and the remedy at law is not adequate, it will oftentimes be granted without even a trial at law.

Although it was denied, on the argument, by the learned counsel, that the tax-payer, under the internal revenue laws, had a remedy at law, I am satisfied, on examination, that this is a mistake. The position may be true, as respects the collector, but I regard the liability of the assessor as settled, in a case of illegal assessment, by which I mean an assessment on property or business not liable to the tax. This is a naked trespass, where the property or business is disturbed by pretence of the authority. Even a Court of special and limited jurisdiction is liable, in cases where its powers are carried beyond its jurisdiction. I agree, however, that the remedy at law in this case is not adequate, and that, for this reason, in ordinary cases, the party would be entitled to relief in equity. The main reason why this remedy at law is not adequate is the multiplicity of suits. The want of responsibility of the officers, I do not regard as material or controlling, for the reasons stated hereafter.

I have said that, in ordinary cases, a writ of injunction will be granted, to prevent a multiplicity of suits at law. The embarrassment in the present case is from the great number of persons affected by the tax. The remedy in equity would involve a litigation almost, if not quite, as onerous and vexatious as suits at law. Each tax-payer would be obliged to file a bill, in order to obtain relief. As to the litigation and multiplicity of suits, therefore, the difference in the proceedings in the one tribunal or in the other will scarcely justify the

The Island City.

interposition of a Court of Equity in favor of the party complaining, especially where the inconvenience to the Government in the collection of its public revenue is much more serious in the latter tribunal. I agree that, if the joinder of parties in this case could be maintained, this difficulty of a multiplicity of suits in equity would be very much diminished; but, for the reasons already stated, I am entirely satisfied that it is without precedent or principle.

It has been strongly urged, that the amounts of money involved in this controversy are very large, far beyond the ability or means of these officers to respond in actions at law. But, whether these officers are of sufficient responsibility or not, it must be remembered that the litigation is substantially be tween the tax-payer and the Government; and it would be unjust to the latter to doubt, that, if the tax should be ultimately found to be illegal, the Government will at once refund with interest, the money thus illegally collected. Indeed, the 44th section of the Act has pledged the Government to this effect, in advance.

Upon the whole, without pursuing the examination of the case further, my conclusion is, that, under the peculiar facts and circumstances attending this case, and for the reasons above stated, the injunction should be withheld, and the parties be left to their remedy at law.

THE ISLAND CITY.

Where a steamer going to New York through Hell Gate saw a schooner drifting towards her with the tide, there being no wind, and did not stop, as she might have done, in an eddy, to let the schooner pass, but went on until she was caught in the tide and intercepted the schooner's drift, and a collision ensued: Held, that the steamer was in fault.

(Before NELSON, J., Southern District of New York, September 29th, 1865.)

THIS was a libel in rem, filed in the District Court, by the

The Island City.

owner of the schooner Peri, against the steamer Island City, to recover damages for the sinking of the schooner, by a collision which took place between her and the steamer, in Hell Gate, off Hallett's Point, at about half-past nine o'clock A. M., on the morning of the 27th of September, 1862, the wind being very light from the north-north-east, and the tide. strong flood. The District Court dismissed the libel, and the libellant appealed to this Court.

Robert D. Benedict, for the libellant.

James M. Smith, for the claimant.

NELSON, J. The schooner was on her passage into the Sound from the city of New York, making her way through Hell Gate. The steamer was coming down from Mamaroneck to the city. The schooner tacked across from Hallett's Cove toward the New York shore, and again came about, when abreast, or nearly so, of Astoria, and made again for the Long Island shore. She had got some slight headway on, on this tack, when the wind entirely failed her, and she was in danger of being swept by the tide on to the shore. Thereupon the master immediately took measures to bring her about, her motion in the water being sufficient to accomplish this manœuvre; but, from the loss of the wind, she drifted along in the tide to Hallett's Point, when she was struck on her starboard quarter, abaft her fore-chains, by the steamer. The steamer came down in the eddy to Hallett's Point, the usual track for small steamers, and, having seen the schooner below, endeavored to stop in the eddy, to allow her to pass, but her, the steamer's, bow having caught in the tide, she shot across the schooner's track while drifting, which occasioned the collision.

The learned counsel for the steamer, aware that it was her duty to take care and avoid the schooner, as a general rule, has endeavored to show that the schooner was in fault, and that hence the collision was unavoidable; that, in her tack to the Long Island shore, she approached too near the rocks, and that, on coming about, her stern struck them, which had the

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