Electro-Pneumatic Transit Co.'s Case.

the exercise of any franchise of said corporation or the transaction of any business until the said corporation shall have paid said tax and interest due thereon.

All the allegations in these petitions are admitted by the respondents severally, but each claims in effect that it has been unable, practically, to do or carry on any business within the intent or purpose for which it was incorporated. Because of this fact it is insisted that an injunction should not be issued, and for this purpose rely upon the cases heretofore decided by me. In the Matter of the Taxation of Faure Electric Light and Force Co., 16 Stew. Eq. 411, and In the Matter of the Taxation of the New York File and Sharpening Co., 16 Stew. Eq. 413. These cases support the contention of the respondents, but, on behalf of the state, it is insisted that a very recent decision of the supreme court-The State, The Edison Phonograph Co. v. State Board of Assessors, 26 Vr. 55-is directly in conflict with them. I think the merits of that decision are closely and fully stated in the head-notes as follows:

"A manufacturing company, to bring itself within the proviso of section 4 of the act of April 18th, 1884 (Rev. Sup. p. 1017), must be actually engaged in the business of manufacturing in this state. A manufacturing company, wishing to withdraw from active business, must, to escape taxation, take proceedings under the thirty-fourth section of the Corporation act to dissolve and surrender its charter and wind up its affairs."

Although, in this opinion, no reference is made to the cases above stated, I cannot but regard it as effectually overruling them. The subject-matter being the proper construction of a statute respecting the imposition of taxes, over which the legal tribunals have complete jurisdiction, except so far as the legislature may otherwise provide, their determination must be final as to all parties concerned. The fourth section of the act referred to, after fixing the liabilities of certain corporations, declares that "all other corporations incorporated under the laws of this state, and not hereinbefore provided for, shall pay a yearly license fee or tax of one-tenth of one per centum on the amount of the capital stock of such corporations; provided, that this act shall

Electro-Pneumatic Transit Co.'s Case.

*

not apply to railways or manufacturing companies or mining companies carrying on business in this state." Under this statute every manufacturing corporation is liable to pay a tax of one-tenth of one per cent. upon its capital stock for the license privilege or right which the state grants to it, unless it carries on the business of manufacturing in this State. If it does not pay the taxes imposed within the time specified the attoruey-general may ask this court to issue an injunction restraining it from doing any business under its charter. I think, therefore, it is proper to say that whenever it appears that a corporation exists under the provisions of the act above quoted, which does not come within the exceptions therein named, and an assessment has been made against it which it does not pay, it is subject to be enjoined by the decree of this court from the transaction of any business. As long as such a corporation enjoys the license or privilege extended to it by the statute under which it is incorporated, it should respond to the taxes imposed under the act now under consideration, unless it can show that it is within the exception. The respondents are manufacturing corporations; each one has been assessed; neither has been engaged in doing business in this state. Consequently, the assessments not having been paid, a "proper case" has been made out for the interference of this court by its injunction. In other words, the only power given to or duty imposed upon the court of chancery by the act of the legislature is to issue its prohibitory writ.

Henninger v. Heald.

HENNINGER et al.

v.

HEALD et al.

1. The dismissal of a bill is no bar to a subsequent suit for the same cause of action where it does not appear that the former suit was between the same parties and that it was tried upon its merits.

2. Where it appears that the rights of one of the complainants, which he holds by assignment from the other, depends entirely upon the success of that other, the general statement showing that the extent of his rights is to be determined by the amount which he shall have advanced, the rule requiring certainty to a common intent is complied with, or if not, a reasonable exception is presented, since from the nature of the case the amount to be advanced is uncertain.

3. Upon the question of laches it is not material that it does not appear when the interests of a co-complainant were acquired, if such interests depend entirely upon the success of the complainant.

4. On a bill filed to rescind a contract on the ground of fraud, if it is alleged that the property which the complainant took title to under the contract was sold and conveyed by virtue of a prior existing lien so that he was thereby unable to restore it to the defendant, a demurrer will not offer to restore it.

5. Where suit was commenced within three months after the discovery of the alleged fraud, for the rescission of the contract, which suit was dismissed without hearing upon its merits and without the words "without prejudice," and another suit commenced for the same cause within a reasonable time, the complainant is not chargeable with laches.

6. It is not multifarious to oring all the parties into court as defendan's who are alleged to have some interest in the subject-matter of the controversy whether as original contractors or as their grantees or assignees.

On demurrer.

Mr. R. Wayne Parker, for the demurrer.

Mr. Theodore Little, contra.

BIRD, V. C.

Amongst the various causes assigned for demurrer to the bill of complainant in this cause, one is that the former bill involv

Henninger v. Heald.

ing the same issues had been filed and had been dismissed without adding the saving clause "without prejudice." It is important to determine the value of this assignment of demurrer in the outset, because the result must necessarily aid in determining the cause first assigned, which will be considered next after the present inquiry is concluded. The present bill states that the former bill was dismissed for want of proper parties, and that the cause was not tried upon its merits. Counsel for Heald insists that the absence of the phrase "without prejudice " is sufficient warrant under the authorities, and that such authorities make it the duty of the court to dismiss the present bill. I think there can be no doubt whatever that where a bill has been dismissed, as the one referred to above was, and another bill is filed between the same parties based upon the same subject-matters, the court may in its discretion dismiss the latter bill without a hearing; but it seems to me that unless the court is satisfied that the proceedings on the part of the complainant are vexatious and the allegations are to the effect that the complainant has been imposed upon and defrauded by one or more of the defendants, it then becomes the duty of the court to sustain the latter bill. The authorities are to this effect. 1 Greenl. Ev. §§ 529, 530. In the case of Hughes v. United States, 4 Wall. 232, it appeared that one Sewell had commenced a suit respecting his rights under a patent, which was carried on through various stages, but that the suit was dismissed before final hearing upon the merits for want of jurisdiction and want of proper parties, and also because of defective statements as to cause of action. The court said: "It requires no argument to show that judgments like these are no bar to the present suit. In order that a judgment may constitute a bar to another suit, it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases, and must be determined on its merits. If the first suit was dismissed for defect of pleadings, or parties, or a misconception of the form of proceedings, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit." Wells Res Adjudicata

Henninger v. Heald.

$455 &c.; Bigelow v. Winsor, 1 Gray 301. This last case shows what is believed to be the general practice: that when a bill is dismissed and the court intends to protect the complainant against an estoppel, it usually adds to its decree that it shall be without prejudice. But I cannot conceive for a moment that the absence of those words is a bar to all future consideration of the equitable rights of the parties. Brandlyn v. Ord, 1 Atk. 571; Behrens v. Pauli, 1 Keen 456, 460; Big. Estop. 121; Longstreet v. Phile, 10 Vroom 63.

Another cause assigned for demurrer is the uncertainty of the allegations setting forth the rights and interest of Mr. Lente, one of the complainants, and the absence of any statement as to the time when he acquired any interest. The statement is that the complainant Henninger, because of losses and consequent inability to carry on the suit, "assigned to his said co-complainant an interest in his said claim and in said land, if the same shall be recovered, so that your said orators have a joint interest in said claim." It is urged that the defendants have a right to know the exact extent or value of Mr. Little's interest. From the nature of the assignment, this is impossible, because it is uncertain how much may be required of him to carry on the suit to completion. Besides, from the nature of the statement that the interests of the complainants are joint, the defendants have no concern as to the extent of the rights of either, since a decree founded upon such an allegation will be a joint decree and will be an effectual bar against any further or other claim by either of the complainants against any of the defendants. If there be any uncertainty, it will devolve upon the complainants to settle that as between themselves, after they have obtained a decree. Nor do I think this particular assignment of cause for demurrer is sustained by the absence of any statement of any time when the assignment was made to Mr. Little. There can be no doubt that the allegation of the time when contracts are entered into is of great consequence and can seldom be dispensed with, but in this case it seems to me we have an illustration of a reasonable exception to the general rule, for Mr. Little's interests, as against the defendants, are dependent wholly upon the success of Mr.