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2 F.(2d) 17

court, and have transferred the campus to the state of Iowa. The relief sought is an injunction against the delivery of the $200,000 to Coe College and an accounting for the campus.

The defendants made a motion to dismiss the bill, and after consideration the court rendered a decree to the effect that it found "that, under the facts pleaded in the bill, plaintiff, William E. Schell, should not be permitted to maintain this cause as a class suit," and "ordered and adjudged that plaintiff's bill be, and the same is, hereby dismissed." This appeal is from this order. By their motion to dismiss the bill the defendants have admitted, and this court treats as true, the averments of facts well pleaded in the bill. Counsel for the defendants urged these three reasons why in their opinion the order of dismissal should be affirmed: First, because the Board of Education was the only proper plaintiff in this suit; second, because there is a misjoinder of causes of action, in that the complaint seeks an injunction against the college and its trustees, to prevent the delivery of $200,000 to Coe College, and also an accounting for the campus from the trustees of the college; and, third, because under a statute of Iowa the trustees of the college are vested with the "control and management of its affairs and funds," and, if they hold the money or property of others in trust for the owners, they are not answerable to the cestuis que trust or to any court for their violation of their trust or disposition of the property.

[1] By the averments of the bill and the motion to dismiss it is admitted that the Church was an unincorporated association, that its members were too numerous to join as plaintiffs, and that the plaintiff is a member, and brings this suit as such member, for himself and all other members similarly situated. If, therefore, the Church had any enforceable equity against the defendants, this plaintiff may maintain this suit to enforce it. When the question is one of common or general interest to many persons, constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole. Story's Equity Pleadings (10th Ed.) § 97; Federal Equity Rule 38; 1 Foster, Federal Practice (5th Ed.) § 114, p. 423; Helm v. Zarecor, 222 U. S. 32, 33, 34, 37, 38, 32 S. Ct. 10, 56 L. Ed. 77.

Was the Board of Education the only

proper party plaintiff to bring this suit? The averments of the complaint which condition the answer to this question set forth these facts: The Church has conducted its religious and educational activities in the United States for over 100 years. Its organic law is embodied in the Church Discipline, which is subject to amendment only by the general conference of the Church, which meets quadrennially. In the year 1856, as part of its religious, benevolent, and educational work, it established church college in the state of Iowa, which for many years has been located in the city of Toledo, Iowa. Since 1903 this college has been known as Leander Clark College. Throughout its existence it has been supported by, has acknowledged allegiance to, and has recognized the domination of the Church. Under the provisions of its articles of incorporation its trustees are elected triennially by the Iowa, Minnesota, Wisconsin, and Illinois annual conferences of the Church, which, in relation to Leander Clark College, are "the co-operating conferences."

With reference to church colleges, the organic law of the Church-the Church Discipline-provided for a Board of Education, an Ohio corporation to which the Church delegated general supervisory powers over all church schools, and among them the power to determine to which annual conferences each school should be tributary. No school or college could be established, discontinued, relocated, or consolidated with any other without its consent. Leander Clark College throughout its existence met with the requirements and regulations and recognized the authority of the Board of Education and of the Church Discipline as adopted by the general conference until the year 1919.

In June, 1917, a plan of consolidation of Leander Clark College with Coe College was approved by the trustees of the former college. In the autumn of 1917 it was presented to the co-operating conferences, but none of them favored it, and when it was presented to the Board of Education, the consent of which is by the Church Discipline indispensable before any consolidation can become effective, that board disapproved of the plan and refused to consent to the consolidation. Thereupon the Board of Education made, and in September and October, 1918, presented, a new plan of consolidation to the co-operating conferences at their annual conferences, and they approved of it, and, believing that this plan

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would be carried through, these conferences authorized the trustees of the college to dispose of the campus property as they saw fit. Afterward the college, through its officers and trustees, purporting to act under this authority, conveyed the campus to the state of Iowa for use as a state institution for destitute orphan children. One of the objects of this suit is to obtain an accounting from the trustees of the college of the disposition of this campus, on the ground that they and their college held it in trust for the Church.

its members, empowered to do certain acts and decide specified questions arising in the practical operation of their business and the management of their property. It bears a relation to the Church analogous to that which an agent or committee delegated by a railroad or commercial corporation or association to manage and direct the operation of a small local portion of its business or property does to such corporation or association. On the other hand, it is alleged in the bill that the Church established the college, that it has been supported by the Church, that the college has acknowledged its allegiance to the Church and the latter's domination over it, and that by the law of the church organization the college and its trustees are prohibited from consolidating with any other college or turning over the $200,000 endowment fund without the consent of the Board of Education, which they have not obtained.

These allegations, which the motion to dismiss admits to be true, prohibit any other conclusion than that the college holds the $200,000 endowment fund in trust for the use of the Church and its members; that its delivery of that amount to Coe College will breach the trust under which it holds, and will unavoidably deprive the Church and its members of the fund, to their loss in that amount, while such disposition would inflict no loss or damage upon the Board of Education; and that the latter is not and the plaintiff is the proper party to maintain this suit in equity to prevent this breach of trust and for an accounting for its violation.

Coe College, however, found fault with the board's plan, and the board of trustees of Leander Clark College thereupon rescinded all action they had taken adopting the plan of the Board of Education and all other action they had taken looking toward a consolidation with Coe College. Thereafter the trustees of the college drew up another and materially different plan of consolidation, presented this plan to the Board of Education, and that board disapproved and rejected it. After this disapproval and rejection, the college, in accordance with the terms of this rejected plan, transferred its endowment fund of $200,000 to the defendant H. J. Stiger, and directed him to convey it to Coe College pursuant to the terms of the rejected plan. One of the objects of this suit is to prevent the delivery of this fund to Coe College and to preserve it to the Church and its members. [2] Counsel argue that, because the Church delegated to its Board of Education the power to supervise its church schools and to determine what church schools and when should be established, discontinued, [3-5] The second reason why counsel for relocated, or consolidated, it deprived itself the defendants contend that their motion to and its members of the right and power to dismiss the bill was properly granted is bring and maintain suits in equity against that there was a misjoinder of causes of its church schools and colleges and their action, in that the plaintiff by his bill seeks, trustees to prevent violations of the trusts first, an injunction against all the defendunder which they held its property and for ants to prevent their transferring the $200,accountings for property by them disposed 000 endowment fund of Leander Clark Colof through breaches of such trusts. But lege to Coe College, or the carrying out of the proper party to bring and maintain this any plan of merging Leander Clark College suit is the real party in interest in the prop- with Coe College, which does not have the erty or claims in issue in the $200,000 en- sanction of the Board of Education; and, dowment fund and in the campus or its second, an accounting from all the defendvalue. No facts are averred in the bill that ants that are trustees of Leander Clark Colindicate or tend to prove that the Board lege for the value of the campus and such of Education has or ever had any right, ti- further or other relief as may be necessary tle, or interest in this fund or claim, or and proper in the premises. But there are that the transfer of the property to Coe many reasons why these facts did not warCollege or to the state can ever inflict any rant a dismissal of the bill. In the first damage upon it. The board is nothing but place, if there had been two causes of acan administrative agent of the Church and tion stated in the bill, which could not have

2 F.(2d) 17

been conveniently tried together, the court should not have dismissed the bill, but should have ordered separate trials. Federal Equity Rule 26. In the second place, it is not indispensable that all the parties to a suit in equity should have an interest in all the matters contained in the litigation. It is sufficient, if there is a common point of litigation, if each party has an interest in some essential matters involved in the suit and these matters are connected with the others. Brown v. Deposit Co., 128 U. S. 403, 412, 9 S. Ct. 127, 32 L. Ed. 468; Jones v. Missouri-Edison Electric Co., 144 F. 765, 780, 75 C. C. A. 631; Rogers v. Penobscot Mining Co., 154 F. 606, 614, 83 C. C. A. 380. And this bill shows that each of the parties to this suit has an interest in some essential matters involved in it.

[6] The vice of multifariousness is the union of causes of action which, or of parties whose claims, it is either impractical or inconvenient to hear and adjudicate in a single suit.

Where this vice does not exist, where it is as practical and convenient for the court and the parties to deal with the claims or causes of action presented in one suit as in many, the pleading is not multifarious, and it should be sustained. Westinghouse Air Brake Co. v. Kansas City So. Ry. Co., 137 F. 26, 31, 32, 33, 71 C. C. A. 1, and cases there cited. There can be no misjoinder of causes of action in equity in any bill which presents a common point of litigation, which affects the entire subjectmatter, and the decision of which will settle the rights of all the parties to the suit. Watson v. Bonfils, 116 F. 157, 159, 53 C. C. A. 535, and cases there cited. The bill tenders a common point of litigation, the alleged breach of trust of the defendants, which their motion to dismiss admits, but which, when the grant of that motion is set aside, they may desire to challenge.

[7, 8] Counsel suggest that the claim for an accounting for the value of the campus states a cause of action at law. If it does, it is triable in this court under federal equity rule 26; but, in our opinion, it constitutes a consistent part of the cause of action in equity for the violation of the trust there charged. There was no misjoinder of causes of action in this bill.

[9, 10] Are the trustees of the college and the college itself exempt from all liability at law and in equity at the suit of the cestuis que trust or contractees, for the breach of the trusts and the violation of the contracts under which they hold the proper

ty of the cestuis or contractees, because section 1647 of the Code of Iowa of 1897, under which the college was incorporated, provides that its elected trustees "have the control and management of its affairs and funds"? In support of their contention that this question should be answered in the affirmative, counsel for the defendants first argue that, because the plaintiff did not set forth at length in his bill the articles of incorporation of the college, he cannot insist that the college or its trustees hold the endowment fund or the campus in trust for the Church, or have threatened to violate or have violated that trust. But the averments of the bill clearly establish such a trust in the college for the use and benefit of the Church, and by their motion to dismiss the defendants have admitted the truth of those allegations, the trust they established, and the violation and threatened violation of it. If there is anything in thẻ articles of incorporation of the college or elsewhere in conflict or avoidance of those averments, or of the natural and rational conclusion from them, the burden was and is on the defendants to plead and prove it. Their motion to dismiss and its unavoidable admission estop them from presenting such matters here and now.

In support of their broad proposition that the statute of Iowa, which authorized the trustees of the college to "have the control and management of its affairs and funds," exempted them and the college from liability at law or in equity for such breaches of trust as those alleged in the bill, counsel have cited and we have read the opinions in Tash v. Ludden, 88 Neb. 292, 129 N. W. 417, 421; Bradfield v. Roberts, 175 U. S. 291, 292, 293, 297, 300, 20 S. Ct. 121, 44 L. Ed. 168; Allen v. McKean, 1 Fed. Cas. p. 489, No. 229; People v. President & Trustees of the College of California, 38 Cal. 166, 173; Lupton v. Leander Clark College, 194 Iowa, 1008, 187 N. W. 496, 501. But we find nothing in the decisions or opinions in any of these cases in support of such a proposition. They go no farther than to hold that corporations and their officers may exercise the powers vested in them rightfully, not wrongfully, in accordance with, not in violation of, the principles and rules of law and equity, to convey or dispose of the property they hold.

As this case now stands, under the admitted averments of this bill, the Church established the defendant college in 1856.

Throughout the existence of this college the Church has supported it. This college has acknowledged the domination over it of the Church. Pursuant to the provisions of the articles of incorporation of the college, its trustees have been elected triennially by the co-operating annual conferences of the Church. During this time the organic law of the Church, the Church Discipline, under and subject to which this college was created and supported by the Church, has provided and still provides that no college shall be discontinued, relocated, or consolidated with any other without the consent of the Board of Education of the Church. And now the trustees of this college, and the college itself, created and supported as it has been by the Church as part of its religious, benevolent, and educational work, without the consent of the Board of Education of the Church and in violation of its organic law, the Church Discipline, under which this college was created and fostered, purposes to take its endowment fund of $200,000 and its campus away from the Church, and from its religious and educational work, and give them to others. None of the authorities cited sustain such a course of action. It is unjust, inequitable, and it presents a good cause of action for relief in equity.

Let the decree of dismissal be reversed, and let this case be remanded to the court below, with directions to permit the defendants to answer the bill, if so advised.

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3. Criminal law 242(4)-Objection that indictment was insufficient under rules of court of district to which removal was sought held without merit.

In habeas corpus proceeding to prevent removal from one federal district to another for trial under indictment, objection that indictment did not disclose names of witnesses who appeardistrict to which removal was sought, is withed before grand jury, as required by court of out merit, in absence of proof of rules or decisions to that effect from such court.

United States for the District of New MexAppeal from the District Court of the ico; Orie L. Phillips, Judge.

Habeas corpus proceeding by John Looney against Secundino Romero, United States Marshal for the District of New Mexico. From a judgment discharging writ, petitioner appeals. Affirmed.

William J. Barker, of Santa Fé, N. M., for appellant.

John W. Wilson, U. S. Atty., of Albuquerque, N. M. (H. S. Bowman, Asst. U. S. Atty., of Santa Fé, N. M., on the brief), for appellee.

Before STONE, Circuit Judge, and MUNGER and MILLER, District Judges.

STONE, Circuit Judge. [1] This is an of habeas corpus filed by the appellant to appeal from a judgment discharging a writ of Illinois for trial under an indictment prevent his removal to the Southern district there charging him with having transported a stolen automobile in interstate commerce, knowing it to be stolen. Two points are here urged. The first is that there was no evidence of probable cause in that there was no evidence tending to show that any automobile was, in fact, stolen. The indictment was prima facie evidence of that fact. Gayon v. McCarthy, 252 U. S. 171, 173, 40 S. Ct. 244, 64 L. Ed. 513; Tinsley v. Treat, 205 U. S. 20, 31, 27 S. Ct. 430, 51 L. Ed. 689. This rule and the reason therefor are stated by Mr. Justice Brewer in Beavers v. Henkel, 194 U. S. 73, 84, 24 S. Ct. 605, 607 (48 L. Ed. 882) as follows:

"The thought is that no one shall be subjected to the burden and expense of a trial until there has been a prior inquiry and adjudication by a responsible tribunal that there is probable cause to believe him guilty. But the Constitution does not require two such inquiries and adjudications. The government, having once satisfied the provision for an inquiry and obtained an adjudication by the proper tribunal of the existence of probable cause, ought to be able without further litigation concerning that

2 F.(2d) 23

fact to bring the party charged into court for trial. The existence of probable cause is not made more certain by two inquiries and two indictments. Within the spirit of the rule of giving full effect to the records and judicial proceedings of other courts, an indictment, found by the proper grand jury, should be accepted everywhere through the United States as at least prima facie evidence of the existence of probable cause. And the place where such inquiry must be had and the decision of a grand jury obtained is the locality in which by the Constitution and laws the final trial must be had. "While the indictment is prima facie evidence it is urged that there are substantial reasons why it should not be regarded as conclusive. An investigation before the grand jury, it is said, is generally ex parte -although sometimes witnesses in behalf of the defendant are heard by it-and the conclusion of such ex parte inquiry ought not to preclude the defendant from every defense, even the one that he was never within the state or district in which the crime is charged to have been committed, or thorize the government to summarily arrest him wherever he may be found, transport him perhaps far away from his home and subject him among strangers to the difficulties and expense of making his defense. It is unnecessary to definitely determine this question. It is sufficient for this case to deeide, as we do, that the indictment is prima facie evidence of the existence of probable cause."

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[2] There was ample evidence of the identity of the appellant as the one accused in the indictment. This proof of identity and introduction of the indictment establishes a prima facie, case for removal. Gayon v. McCarthy, 252 U. S. 171, 173, 40 S. Ct. 244, 64 L. Ed. 513; Crosland v. Dyson, 280 Fed. 105 (5th C. C. A.); Rowe v. Boyle, 268 Fed. 809, 810 (9th C. C. A.). There was other evidence of probable cause introduced by the government. To some of this evidence the objection is made that it was hearsay. Be this as it may, all of that evidence may be disregarded and yet, there remains sufficient to make a prima facie case for removal. The position of the appellant at the hearing and his evidence was simply to the effect that he did not commit the crime. That, of course, is a matter to be tried out under the indictment.

[3] The second objection is that the indictment did not disclose the names of the witnesses who appeared before the grand jury, and that such disclosure was a require

ment in the federal court for the South-
ern district of Illinois where the indictment
was filed. To determine this objection, we
need go no further than to say that no deci-
sions, rules or rulings to that effect of the
United States court for the Southern dis-
trict of Illinois were offered before the trial
judge or presented here.

This record reveals nothing but an effort
by an accused man to delay being brought
to trial.

The decree is affirmed and the mandate ordered issued forthwith.

20 ojupcal 2 155(30) 473

NATIONAL BANK OF COMMERCE OF
NORFOLK v. LAMBORN et al.

(Circuit Court of Appeals. Fourth Circuit. 469

October 21, 1924.)

No. 2231.

2762397

18 Sup (7. 39

1. Sales 177 Where contract required
"shipment" of sugar to be made to Philadel-
phia, buyer was not required to accept ship-
ment made to New York and diverted to Phil-
adelphia.

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Where contract for sale of sugar required
"shipment to be made to
from Java by
steamer or steamers to Philadelphia," buyers
were not required to accept sugar which, though
it left Java within time prescribed for ship-
ment, was at first consigned to New York, and
was diverted to Philadelphia only when vessel
bound for Philadelphia was disabled; "ship-
ment," as so used, having a particular meaning.

[Ed. Note.-For other definitions, see Words
and Phrases, First and Second Series, Ship-
ment.]

2. Sales54-Court must give effect to every
term in mercantile contracts.

In construing mercantile contracts, courts
must give effect to every term, and are not at
liberty to speculate whether the parties did
or did not attach importance thereto.

In Error to the District Court of the
United States for the Eastern District of
Virginia, at Norfolk; D. Lawrence Gron-
er, Judge.

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Action by Arthur H. Lamborn and others, doing business as Lamborn & Co., against the National Bank of Commerce of Norfolk. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Tazewell Taylor, of Norfolk, Va., for plaintiff in error.

H. G. Connor, Jr., of Wilson, N. C., and Edward R. Baird, Jr., of Norfolk, Va. (Baird, White & Lanning, of Norfolk, Va., and Van Doren, Conklin & McNevin, Louis O. Van Doren, and Alfred C. B. McNevin, all of New York City, on the brief), for defendants in error.

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