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JENNY . PERKINS.

The court be

to take proofs under the issue thus raised. low being of opinion that the evidence maintained the plea, dismissed the bill and the complainant appealed.

Two points are made. First, That a plea of the statute of limitations to a bill for an account between partners is not permitted; and Second, That the real issue raised by the present plea is not supported.

Upon the argument on the first point the counsel for complainant was understood to urge that the plea was bad, inasmuch as it did not deny, but admitted the partnership, while alleging that no business had been done, and that nothing of a partnership nature had taken place for the six years next before the bill was filed. If it be meant by this that the bill contained matters which necessitated other averments in the plea than those contained in it, in order to present a complete equitable bar; or that an answer was requisite in consequence of some supposed matters in the bill adapted to furnish evidence against the truth of the plea, the ground of the objection is not discovered. There are no collateral circumstances stated in the bill, which could afford evidence to disprove the plea, nor are there any allegations which would require further averments in the plea. But if this were otherwise, it can not be admitted that a specific answer or discovery could be insisted on, since an answer upon oath is waived and the bill unsworn.

If it be intended to assert that the plea is bad in setting up as a bar the non-existence of all matters which could be the subject of accounting, without denying the existence of the partnership relation, the position is deemed to be untenable. The argument, as thus presented, would imply that the right to an accounting would be a consequence of the partnership relation, however barren. It is manifest, however, that the existence of the bare relation is not enough. There must also be a subject matter, respecting which an accounting may be had. If there has been no

subject matter, there can be no accounting, though the nominal relation has all along existed.

JENNY . PERKINS.

The point of the plea is, that there has been no subject matter for the statutory period, and this is deemed sufficient in the present case. The right to plead the statute in a suit of this description, and to a bill' constituted like the present seems to be within the principle which is now entirely settled.

Whatever implications may be found against it in isolated cases, the current of authority strongly supports the right. See the authorities cited by defendant's counsel; also Story on Part. §233 a; Tatam v. Williams, 3 Hare, 347; Barber v. Barber, 18 Ves. 286.

Formerly it was thought that the statute was designed to raise a presumption of payment or adjustment from the lapse of time, but the better view is now the prevailing one, that it is a statute of repose, and intended to afford security against stale demands when the circumstances would be unfavorable to a just examination and decision.

The courts, therefore, instead of looking upon the law as harsh or oppressive in its operation, now regard it as eminently wise and beneficial. The gradual change of opinion here noticed has been attended by a corresponding one in the application of the statute, and in the administration of those principles of equity which have the same foundation.

The policy of the statute, as now considered, so harmonizes with the kindred doctrine of the court of equity, that in many cases they seem to be nearly blended; and in such instances it is of more importance to observe the principle than to speculate upon the source from whence it came.

Whether, therefore, the statute be regarded as a technical bar, or be adopted from analogy, or whether the case be one of concurrent or exclusive jurisdiction, I think the limitation ought to be applied.-Stearns v. Page, 7 How. 819.

It was conceded on the argument that the written instrument purporting to haye been sealed was in fact unsealed, and that the complainant abandoned the business at

KERR ET AL. v. CITY OF LANSING ET AL.

the end of three months. Indeed the proofs show that he voluntarily withdrew from the concern and all its interests and business, and never, in any manner, returned to or participated in it, or sought to do so, and that he engaged in and gave his time and skill and influence to a rival business. The property of all descriptions was abandoned to the sole control, care and management of defendant, and no evidence appears that complainant had any purpose to reinstate himself, or preserve the interest, or bear the burdens of a partner. After such separation both complainant and defendant acted as though no partnership existed, and the defendant exercised exclusive control over all the property and all the business. This occurred more than six years next before the bill was filed, and continued during the statutory period.

If the complainant ever had a cause of action, it must, therefore, have accrued so long ago as to be subject to the bar. Under these circumstances, I think the truth of the plea established, and that the decree of the court below ought to be affirmed with costs.

COOLEY CH. J. and CAMPBELL J. concurred.

CHRISTIANCY J. did not sit.

John A. Kerr et al. v. City of Lansing et al.

Chancery practice: Multifariousness. When, in a bill by several complainants to enjoin the collection of a grading assessment, some irregularities were alleged which affected but a part of the complainants, and in which the others were not interested, while others affected them all : Held, that, as the bill did not make out a common cause for complainants throughout, it should be dismissed as multifarious.

Chancery practice: When court will decide the merits. The court will not decide upon the merits when the bill is dismissed on other grounds, unless under peculiar circumstances, and when all necessary facts are before them.

Heard April 16th. Decided April 28th.

KERR ET AL. v. CITY OF LANSING ET AL.

Appeal in chancery from Ingham Circuit.

The bill in this case was filed by nine freeholders of the city of Lansing, to restrain the collection of a tax. The cause was heard in the court below, on demurrer. The bill was dismissed, and complainants have appealed to this

court.

Defendants assign two special causes of demurrer.

First. Complainants' bill is multifarious. It shows affirmatively, that the complainants have no joint or common interest in the subject matter in controversy; but the interest of each is separate and distinct.

Second. Complainants show no title which enables them to maintain their suit. They are simply freeholders and tax-payers of the city of Lansing, and as such, they can not maintain a suit enjoining the city from the exercise of its municipal powers.

T. Romeyn, for appellants and complainants.

The bill should not be dismissed for multifariousness.

1. This objection is, in effect, that there is a misjoinder of complainants. It was not taken by demurrer, and it was first made at the hearing.

It should not be allowed when the court can make a decree which will do entire justice between the parties.-7 Mich. 139.

2. The case made by the bill would furnish relief to each and every complainant, if it would to any one of them.

3. We think the bill not multifarious, even if the objection had been taken in limine. — 1 Barb. Ch. 59; 18 U. S. Dig. 264; 19 Id. 240.

The question is to be decided in each case according to its circumstances. It is affected by considerations of convenience.

The complainants go on common ground. They travel the same path, and ask for the same relief. Why should they not be allowed to start and travel together?

KERR ET AL. v. CITY OF LANSING ET AL.

We refer to the argument of counsel in Conway's case, 15 Mich. 257, and to the following additional cases.-5 Allen, Mass. 374; 33 Barb. 30; 34 Miss. 87; 24 How. 164.

Johnson & Higby, and S. L. Kilbourne, for appellee and defendants.

The bill shows that complainants had no joint or common interest in the subject matter. Story's Eq. Pl. § 279, and notes; 12 Simons, 416; 1 Tur. and Russ. 297; 8 Simons, 272; 9 Id. 299; 15 Barb. 239; 43 Id. 375; 24 Ct; 25 Ill; 15 Mich. 257.

In the last case, this precise question was argued by counsel before this court, but not decided.

There is some authority for holding that complainants of distinct interests may maintain a bill to restrain a nuisance, when all are alike affected, but this and the case of a creditor's bill, are alike exceptions to the rule.

Admitting that our objection is not well taken, yet we insist that the complainants have no right to the relief prayed for. It involves the broad proposition as to whether a court of equity will restrain the collection of a lawful tax, imposed by a municipal authority. It is conceeded, this is a lawful tax, but that it is irregularly assessed. If so, each individual complainant has his remedy at law. We have been unable to find any authority to uphold this proceedng. Besides, if the rule is once adopted, that any individual member of a community, who may conceive a tax to be irregularly assessed, can, through the agency of a court of equity, enjoin the collection of taxes, it will result in incalculable mischief. Upon this point, we refer the court to 18 N. Y. 155; 12 Peters, 91; 23 N. Y. 318; 6 Metc. 425; 2 Mich. 560.

CAMPBELL J.

This bill is filed to enjoin the collection of a grading assessment upon the property described in the bill, in which

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