2 FEDERAL REPORTER.
subject to conditions of average, the policy shall be subject to average in like
manner."
The non-resident insurance companies removed the actions against
them, respectively, to the United States circuit court, under the act
of congress of 1875.
At October term, 1885, of the court, the defendants in the actions
removed, being liable each for a proportionate part of the loss, (if
liable at all,) insisted that, as each company was liable to contribute
only its proportionate amount of the loss, there should be a single
ascertainment of the loss incurred, so as to bind all the companies,
and that each company should be held (if at all) for the proportion
of that sum which the amount insured by it bore to the total amount
of insurance, and that, as there could be no consolidation of the suits
except in a court of equity, and as the element of contribution was one
of equitable jurisdiction, and that as the cases were removed from a.
court in which, under the new Code of Civil Procedure, law and equity
weremerged, and the distinctions between law and equity abolished,
in order to completely determine the rights of the parties, and to pre-A
vent circuity of action, the several causes should be transferred to the
equity side of the docket and consolidated.
. Watson cf Glenn, J. C. Buxton, and Fuller at Snow, for plaintiffs. ·
W. W. Crump, Graham d· Rujin, Schenck eé Price, and John W.
Hinsdale, for the insurance companies.
Bonn, J., (Dx0K, J., concurring,) made the following order;
‘ This cause coming on to be considered upon the motion of the sev-
eral defendants that this cause be transferred and put upon the equity
docket of this court, this court doth now declare that the said several
insurance companies—to-wit, the Georgia Home Insurance Company,
the Virginia Fire & Marine Insurance Company, the Westchester Fire
Insurance Company, the Imperial Fire Insurance Company, the Vir-
ginia Home Insurance Company, the Rochester German Insurance
· Company, and the North Carolina Home Insurance Company—are
necessary and indispensable parties to the cause in order that the
rights of all the parties may be duly ascertained and administered,
and that the same can only be done by a court of equity. It is there·
upon ordered and decreed that this cause be transferred and put upon
the equity docket of this court for trial, and that the pleadings of par-
ties in said cause be reformed according to the equity practice of this
court.
And it thus appearing to the court that the North Carolina Home
Insurance Company is a necessary and indispensable party to this
. cause, it is further ordered and decreed that the plaintiffs proceed,
according to the course of this court, to make the said North Carolina
Home Insurance Company, and the other insurance companies, par-
ties to the suit transferred;
And it is further ordered that the plaintiffs be enjoined from fur-
ther proceeding in any action or cause now pending in this court