The Birmingham age-herald., 1903-05-17
DECREE ISSUED
 IN KESSLER CASE
Judge Jones Sustains the De-
 MurrerS and Defendants
EXTRACTS FROM DECISION
Forty Days Time Allowed Complain ants in Which to Amend Complaint
 If They Desire to Do So. e :. Persons Involved.

The denurrers of the defendants in the case of Kessler & Go. against the Ensley Land company and others, have been sustained by Judge Thomas G. Jones in the United States court. where the demurrers were submitted and argued for three days in January
 Judge Jones' decision reached Birming- ham from Montgomery yesterday after noon and the order accompanying 1t was filed.
 The decree of the judge Is as follows;
 "This having beer submitted upon the demurrers of all the defendants except the Ensley Land company, to the bill or complaint herein, at a former day ard having been argued by counsei and fully understood, 1t is o-dgred, adjudged and decreed by the court that said demurrers are well taken, and that the same be and are hereby sustained and that com plainant be taxed wirh the costs.
 "Complainants have forty days in which to apply for leave to amend if they are so advised. If amendmeps is not offered and allowed within that time final decree l will then be rendered, dismissing the plil as, to all the defendants, the Ensley Land ct Tnpany being the real complainant ana nc relief being proved against 1t, put such decree will be without prejudice to the right of the Ensey Land company CT either of compla nan.s to maintain such action at law as they may be advised.
 The Defendants.
 | zoe alad in inc limited States court April 25, 1902 The bill was filed by Alfred Kessler and GustaVe E' hess- Ter. the surviving members Of the hrm of Kesser & company of New Hork' Charles K. Beekman. as executor or the l estate of w. B. Beekman, and James swann. All of the complainants' live In New York and are stockholders In the land company. The suit made James Bowron. Erskine Ramsay, A. M. shook' | e. R. Mccormack and Nathaniel Baxter, Jr., defendants
 The defendants made demurrers to the allegations, and it is these demurrers that have been sustained by Judge Jones.
 The opinion of Judge Jones Is a lengthy one containing about 15,0O0 words From 1t the following extracts bearing directly upon the point involved, are taken:
 ..It may or may not be, as argued for complainants, that the land company though not now in a position which en- titles 1t to a court of equity, to compel reconveyance of the land or to disturb It's purchasers possession is neYertheless entitled to personal recourse against some of the defendants, for the damages and | Tan it's stockholders have suffered by reason of the transactions complained of' etc. Such relief, however, is merely incidental to the equitable cause of action and when that failed the bill should not be retained to administer relief which Is merely incidental and ordinarily a matter of purely legal cognizanee'
 Also the following
 As tc Unreasonable Delay.
 Equity will not help the party who thus unreasonably delays but leaves. him to persue his remedies at law. It will be remembered that one of the propositions made by the Ensley company to the Ensley Land company and which the lat ter recommended the trustees to accept, was that the Land company should name a price or each lot or block 1t was willing to put on the market and give the Ensley company exclusive right to sell the same. paying us ten per cent commission on all sales, and when the lands are sold on time or in connection with our building opera tions, we are to pay the fixed price our selves, less then ten per cent commission etc. The facts stated in the bill, taken in connection with other facts of which the court must take judicial notice, present a case where the skill, energy and means of the defendants have for years been directed, and without dissent from any quarter, to building up hourishing man