When an officer of the United States refuses to perform some plain ministerial act at the in-services therein charged have been actually and stance of a party entitled to its performance, the aggrieved party will have his option to apply for a mandamus or to bring his action at law against the officer.

[233]

[234]

on the record, "and the court shall thereupon
cause to be entered of record an order approv-
ing or disapproving the account, as may be ac-
cording to law and just." As to commission-
ers, it is provided that they "shall forward their
accounts, duly verified by oath, to the district
attorneys of their respective districts, by whom
they shall be submitted for approval in open
court, and the court shall pass upon the same
in the manner aforesaid."

that the Treasury Department has a right to
require some action by the district attorney and
the court, before it will allow or consider a claim
in such a case as this.

The second objection made by counsel for
the United States is that the claim should have
been presented at the Treasury Department and
have been disallowed by the accounting offi-
cers. This question was considered in Clyde
v. United States, 80 U. S. 13 Wall. 38 [20:479],
The same section also requires "that before and we understand the court to have decided
any bill of costs shall be taxed by any judge or in substance that the action of the Auditing
other officer, or any account payable out of the Department, either in allowing or rejecting
money of the United States shall be allowed by such a claim, was not an essential prerequisite to
any officer of the treasury" in favor of these par- the jurisdiction of the court of claims to hear
ties, the proceedings just stated shall be had. it. In that case it appeared that the court of
It is also provided that "Nothing contained in claims had refused to consider a claim against
this Act shall be deemed in any wise to dimin- the United States presented to it because the
ish or affect the right of revision of the ac- claimant had not complied with a rule of that
counts to which this Act applies by the account-court which required that the party should
ing officers of the treasury, as exercised under
the laws now in force."

have first gone to the department which might
have entertained it, before he was permitted to
The findings of fact, made by the court in proceed in that tribunal. But this court held
this case, show that Knox did keep the docket that such a rule was "an additional restriction
and render the services charged in his petition, to the exercise of jurisdiction by that court.
to the amount $390; but the court of claims dis-It required the claimant to do what the Acts
allowed all but $196 of it, as being barred by the giving the court jurisdiction did not require
Statute of Limitations. That court also finds him to do, before it would assume jurisdiction
that the claimant made out and verified by oath of his case." The rule was, therefore, declared
his account of fees for keeping said docket, to be void, and the court of claims was directed
and that he sent it to the United States District to proceed with the consideration of the case.
Attorney to be presented to the court. It
further appears by correspondence between the
claimant and the clerk of the court and the dis-
trict attorney that the latter offered to presentury Department was not necessary to give the
the account to the judge at Dallas, but that the
judge refused to receive or approve it, suggest-
ing that the district attorney had better call for
the books and examine them himself, and see if
the account was correct.

Soon after the claimant took his books to Waco, and left them with the district attorney for examination. That officer thereafter returned the books to him, and informed him that the judge would not act upon the account. There is a term of the district court held at Dallas and another at Waco for the Northern District of Texas; and we take this statement of what occurred to amount to a presentation by the claimant of his account through the district attorney to the court, and an absolute refusal by the court to act upon the claim.

Section 846 of the Revised Statutes declares as follows: "The accounts of district attorneys, clerks, marshals and commissioners of circuit courts shall be examined and certified by the district judge of the district for which they are appointed, before they are presented to the accounting officers of the Treasury Department for settlement. They shall then be subject to revision upon their merits by said accounting officers, as in case of other public accounts.'

"

The presentation, therefore, of the present case to the officers of the Government charged with the auditing of such accounts in the Treas

court of claims jurisdiction, and it would have
been a useless step because the statute express-
ly says that the court shall first "cause to be
entered of record an order approving or disap-
proving the account, as may be according to
law and just."

No provision is made for a refusal by the
court to act upon a claim, and the most forci-
ble argument now made on behalf of the Gov-
ernment against the right of the Court of Claims
to take jurisdiction of this case is that no such
order was made by the Circuit or District Court,
and that the proper remedy for the claimant is [235]
a proceeding in mandamus to compel the Cir.
cuit Court to act upon the account.

We do not know what may have been the circumstances which induced that court to decline to act upon this claim, but we are not prepared to say that such a writ is the proper remedy for the claimant to resort to here. If there were no other this might be so, but the attempt to proceed by mandamus would raise the question, always a troublesome one, whether it is a part of the judicial function to take part in auditing the accounts against the Government, or preparing them for submission to the auditing officers. But as we feel well assured that the claimant, who has done everything in his power to secure action upon his account by the district attorney and the court, and who has a just claim against the Government for services rendered under the Act of Congress, has a remedy in the Court of Claims, we do not see why he should be compelled first to resort to a writ of mandamus against the Circuit Court. This remedy, always an unusual one and out of the It is evident from the language of section ordinary course of proceeding, would be at846, and that of the Act of 1875, above cited,tended in the case before us with delay and

It was decided in United States v. Wallace, 116 U. S. 398 [29:675], that a United States Commissioner who kept a docket, by direction of the court appointing him, and entered therein the proceedings in criminal cases heard and decided by him, is entitled to the same fees allowed to clerks of courts by section 828 of the Revised Statutes for the keeping of their dockets.

[403]

[404]

embarrassment. It is not by any means so effi-
cient nor so speedy as an action in the Court
of Claims. If he should succeed after trouble,
delay, and expense, in procuring action by the
local court, which might be either an approval
or a disapproval of his claim, he would still
have to go to the Auditing Department, in
which the action of the court is only advisory,
or he might sue in the Court of Claims as shown
in the case of Clyde v. United States. 80 U. S.
13 Wall. 38 [20:479].

We are, therefore, of opinion that the Court
of Claims had jurisdiction of the case, and its
judgment is affirmed.

HARRIET BROWN, Appt.,

v.

The Guarantee Trust and Safe Deposit Company, a Corporation of Pennsylvania, being made a defendant, the cause, upon its motion, was removed to the United States Circuit Court for the Northern District of Illinois, upon the ground of the diverse citizenship of the parties. Subsequently that Company filed its cross bill for a foreclosure of a mortgage held by it upon the property of the Water Works Company, and for specific performance by Harriet Brown of her contract of sale to Starr.

The cross bill alleges, in substance, that by certain instruments in writing, bearing date, respectively, the 15th and 17th of June, and the 9th of October, 1880, Starr undertook with the City of Joliet to construct and maintain a system of water works for that city and its citizens, in consideration of which it agreed to grant to him and his successors certain franchises, rights and rentals connected therewith; that

THE GUARANTEE TRUST AND SAFE on the 4th of October, 1880, he entered into a

DEPOSIT COMPANY.

(See S. C. Reporter's ed. 403-416.)

Multifariousness—parties in equity-different
causes-time, when of the essence of a contract
-when contract not abandoned.

1. In an equity suit, where the case against one of the defendants is so entire as to be incapable of being prosecuted in several suits, and another defendant is a necessary party to some portion of the case stated, the objection of multifariousness cannot prevail.

2. It is not indispensable that all the parties should have an interest in all the matters contained in the suit; it will be sufficient if each party has an interest in some material matters in the suit, and they are connected with the others.

a bill.

written agreement with Harriet Brown, by [405]
which, in consideration of $1,000 to be paid to
her, she agreed to convey to him a certain par-
cel of land in Joliet; that subsequently he en-
tered into a verbal agreement with her for the
purchase of other parcels of land, making in all
9.60 acres, for which he was to pay a total price
of $4,800; that on the 10th of December there-
after, Mrs. Brown, by warranty deed, conveyed
all of said parcels to Starr, placing the deed in
the hands of one Hobbs, for delivery to Starr,
upon the payment of the balance of the pur-
chase money; and that on the 3d of November
Starr paid to her, on that purchase, the sum of
$500, and on the 17th of February, 1881, the
further sum of $1,000.

It was also alleged, in the cross bill, that im-
mediately after said agreements, and with full
knowledge and consent of Mrs. Brown, Starr
took actual and open possession of all the prem-
ises so purchased, and immediately began to
make permanent and expensive improvements
thereon for water-works purposes; that he and
his assignee, hereinafter mentioned, continued
to make such improvements at a cost of about

3. To support the objection of multifariousness,
because the bill contains different causes of suit
against the same person, two things must concur:
first, the grounds of suit must be different; second,
each ground must be sufficient as stated to sustain
4. Time may be made of the essence of the con-
tract; but it must affirmatively appear that the par-
ties regarded time as an essential element in their
agreement, or a court of equity will not so regard it.
5. Where there was an agreement for the post-$50,000, and remained in uninterrupted posses-
ponement of the payment and to pay interest on
the purchase money, acceptance of a partial pay-
ment and demand for performance shows that the
[No. 20.]

contract had not been abandoned.

Submitted April 25, 1888. Decided Nov. 19, 1888.

APPEAL from a decree of the Circuit Court
of the United States for the Northern Dis-
trict of Illinois, for specific performance of a
contract by appellant, etc. Affirmed.

Statement by Mr. Justice Lamar:
This litigation arose from a creditors' bill, filed
in one of the courts of Illinois, by Edward R.
Knowlton against the City of Joliet Water
Works Company, Jesse W. Starr and Harriet
Brown, for the enforcement of a judgment
against the first named two defendants; for the
appointment of a receiver of the property used
by that company in its business; and for an ac-
counting with the remaining defendant, Harriet
Brown, who, it was alleged, asserted a vendor's
lien upon some of the property of the Water
Works Company, sold by her to Starr, and by
him to that company.

sion of the premises until they were delivered
to the receiver appointed in this litigation; all
this within the daily sight of Mrs. Brown, and
without objection or molestation on her part;
which were insufficient to carry out his agree
that to supplement his individual resources,
ment with the city, Starr resorted to the plan
of creating a corporation under the local laws
of the State, and by means of its negotiable
bonds and stocks raising money sufficient to
complete said water works; and that to ac
complish this purpose the City of Joliet Water
Works Company was organized, with a capital
stock of $200,000, of which amount Starr sub-
cribed for $195,000 in his individual name.

It is further alleged in the cross bill that im-
mediately upon the organization of that cor-
poration, and on the 9th of December, 1880,
Starr conveyed to it and its assigns his contracts
with the City of Joliet, as well as the rights,
franchises and property, real and personal,
connected therewith, including the property
purchased from Mrs. Brown, and agreed with
the company to complete the system of water
works contemplated by his contract with the 1406]
city, and deliver them to the company within &

[408]

Adams v. Robertson, 37 Ill. 45; De Wolf v. Johnson, 23 U. S. 10 Wheat. 367 (6: 343). To a proceeding in rem, the only defenses allowed are such as payment, satisfaction, charge, release, or never a lien.

Henderson v. Palmer, 71 Ill. 579; Fitzgerald v. Forristal, 48 Ill. 228; Carpenter v. Mooers, 26 Ill. 162; White v. Williams, 3 N. J. Eq. 376, 383; Troup v. Haight, 1 Hopk. 239; Petat v. Ellis, 9 Ves. 563.

If the usury could be set up, the bondholders | dividuals demands which are wholly disconnected. have not the right to do it. In illustration of this, it is said if an estate be sold in lots to different persons, the purchasers could not join in exhibiting one bill against the vendor for a specific performance. Nor could the vendor file a bill for a specific performance against all the distinct, in no way connected with each other, a bill purchasers. The contracts of purchase being disfor a specific execution, whether filed by the vendor or vendees, must be limited to one contract." Campbell v. Mackay, 7 Sim. 564, and in 1 Myl. & C. "It is well remarked by Lord Cottenham, in 603, to lay down any rule applicable universally. or to say what constitutes multifariousness, as an abstract proposition, is, upon the authorities, utterly impossible.' Every case must be governed by its own circumstances; and, as these are as diversified as the names of the parties, the court Whilst parties should not be subjected to expense must exercise a sound discretion on the subject, and inconvenience, in litigating matters in which they have no interest, multiplicity of suits should be avoided by uniting in one bill all who have an though the interests may have arisen under distinct interest in the principal matter in controversy, contracts."

Mr. J. L. High, for appellee:

The objection of multifariousness is purely technical and is never considered with favor by courts of equity. Appellant was not only a proper but an absolutely indispensable party to the cross bill.

Holman v. Bank of Norfolk, 12 Ala. 369; Cornwell v. Lee, 14 Conn. 524; Brinkerhoff v. Brown, 6 Johns. Ch. 139; Rann v. Rann, 95 Ill. 433; Brown v. Keeney Settlement Cheese A880. 59 N. Y. 242.

Unless the court can see that hardship and injustice have resulted from the joinder of parties, a decree should not be reversed upon this ground.

two executors of the will of Daniel Clark, the In that case the bill was filed against the purchasers of various pieces of property which heirs at law of his legatee, and the several had been sold off from the estate. The relief asked was an accounting in respect to the rents Oliver v. Piatt, 44 U. S. 3 How. 333 (11:eral relief as the heir and devisee of Clark unand profits of the several parcels, and for gen622). der a different testament. Mere delay upon the part of the vendee in the payment of the purchase price will not prevent a specific performance, where the vendee is in possession with the vendor's consent, and especially where he has made valuable and permanent improvements upon the prem

ises.

Pom. Spec. Perf. § 404; Mason v. Wallace, 3 McLean, 148; S. C. 4 McLean, 77; All v. Johnson, 61 U. S. 20 How. 511 (15: 1005); Ewins v. Gordon, 49 N. H. 444.

Possession and improvements are grounds for a specific performance,

Potter v. Jacobs, 111 Mass. 32; Murphy v. Lockwood, 21 Ill. 611; Bomier v. Caldwell, 8 Mich. 463; Ewins v. Gordon, 49 N. H. 444. Where one party fails in performing the contract, the other, if he means to rescind the contract, should give a clear notice of his intention.

Reynolds ▾ Nelson, 6 Madd. 18.

Mr. Justice Lamar delivered the opinion of the court:

It is contended by the appellant that the decree below should be reversed on the ground that the cross bill is multifarious. In Shields v. Thomas, 59 U. S. 18 How. 253 [15: 368], this objection was urged against a bill, and in considering the objection the court say:

"There is perhaps no rule established for the conducting of equity pleadings, with reference to which (whilst as a rule it is universally admitted) there has existed less of certainty and uniformity in application, than has attended this relating to multifariousness. This effect, flowing, perhaps inevitably, from the variety of modes and degrees of right and interest entering into the transactions of life, seems to have led to a conclusion rendering the rule almost as much an exception as a rule; and that conclusion is that each case must be determined by its peculiar features."

So in Gaines v. Chew, 43 U. S. 2 How. 619, 642 [11:402, 411], the court say:

"In general terms, a bill is said to be multifarious which seeks to enforce against different in

facts, the court said:

Under this state of

[411]

"The right of the complainant, Myra, must be of Daniel Clark. sustained under the will of 1813, or as heir at law The defendants claim mediately or immediately under the will of 1811, although for distinct parcels of the property. They have a their purchases were made at different times and common source of title, but no common interest in their purchases. And the question arises, on this state of facts, whether there is misjoinder or multifariousness in the bill which makes the defendants parties" "And the main ground of the defense, the validity of the will of 1811, and the proceedings under it, is common to all the defendants. Their interests may be of greater or less only, and not in principle. There can be no doubt extent, but that constitutes a difference in degree that a bill might have been filed against each of the defendants, but the question is whether they of the purchase, including notice, may be peculiar [412] may not all be included in the same bill. The facts to each defendant; but these may be ascertained without inconvenience or expense to codefendants. In every fact which goes to impair or establish the authority of the executors, all the defendants are alike interested. In its present form the bill avoids multiplicity of suits, without subjecting the defendants to inconvenience or unreasonable expense."

The case against one defendant may be so entire as to be incapable of being prosecuted in several suits; and yet some other defendant may be a necessary party to some portion only of the case stated. In the latter case the objection of multifariousness cannot be allowed to prevail. Atty-Gen. v. Poole, 4 Myl. & C. 17, 31; Turner v. Robinson, 1 Sim. & S. 313; Atty-Gen. v. Cradock, 3 Myl. & C. 85.

It is not indispensable that all the parties should have an interest in all the matters contained in the suit; it will be sufficient if each party has an interest in some material matters in the suit, and they are connected with the others. Addison v. Walker, 4 Younge & Col. Exch. 442; Parr v. Atty-Gen. 8 Clark & F. 435; Worthy v. Johnson, 8 Ga. 238.

To support the objection of multifariousness, because the bill contains different causes of suit against the same person, two things must