Brown v. Weatherby.

[*8] tors of Devaynes & Co. In this case there is no al legation that either the separate creditors of Douglas, or the separate creditors of Sedgwick, have been paid their debts. There is no joint estate of Douglas and of Sedgwick; and there is no community of interest between the plaintiffs and their separate creditors. What pretence is there for saying that, because two individuals have some joint liabilities, their estates shall be administered in one and the same suit? It is clear that, on account of the character in which the plaintiff sues, the bill is multifarious. Salvidge v. Hyde.(a)

The amended bill asks that Sedgwick's real estates may be sold and the proceeds applied in payment of his debts. The court cannot give effect to that part of the prayer, without hav ing his heir at law before the court. Mitford on Pleading, 3d edition, page 171, Graham v. Graham,(b) Anon.,(c) Williams v. Whinyates.(d)

Mr. Knight Bruce, and Mr. Teed, in support of the bill :-Sedg wick's heir at law is not a necessary party to this suit. Weeks v. Evans.(e) An objection to a sale by a devisee, out of court, is never made because the heir is not party to the conveyance. Nor is the heir a necessary party to a suit, the object of which is to have the trusts of the will carried into execution; unless the plaintiff wishes to have the will established.

Next. In order to entitle a creditor of a partnership to obtain payment of his debt out of the assets of a deceased [*9] *member of the firm, it is not necessary for him to show that the firm is insolvent. Winter v. Innes.(ƒ) If A. and B. execute a joint and several bond, and both of them afterwards die, the bond creditor has a right to bring both their estates be fore the court in one suit. Here the plaintiff has a claim upon

a) 1 Jacob's Rep. 151.

(b) 1 Ves. jun. 272.

(c) Ibid. 29.

(d) 2 Bro. C. C. 399.

(e) Ante, Vol. VII. p. 546.

(f) 4 Myl & Cr. 101.

Brown v. Weatherby.

the estates both of Sedgwick and of Douglas: has he not, then, a right to unite their estates in one and the same suit? He sues on behalf of all their creditors; because a creditor cannot pursue real estate unless he sues on behalf of himself and all the other creditors who are entitled to come on the real estate. How then could the bill have been framed otherwise than it is? The record was, substantially, in the same state when it was brought before the court on the argument of the former demurrer, as it is now; and all the objections which have been made to it on the present occasion, were then submitted to your Honor's consideration.

THE VICE-CHANCELLOR:-With respect to multifariousness the case stands, in substance, as it did when it came before me on the former demurrer: and I must say that it was then and still is my opinion that, if the case of Wilkinson v. Henderson is to stand, the objection, on the ground of multifariousness, ought not to be allowed to prevail.

In that case, the creditor of a partnership consisting of two individuals, one of whom was dead, filed his bill, against the surviving partner and the personal representative of the deceased partner, for payment of the debts due to himself and the other creditors of the firm, out of the estate of the deceased [*10] partner: and Sir John Leach, M. R., held that the plaintiff was entitled to the relief which he asked, notwithstanding the surviving partner was not insolvent; and that the surviving partner was properly made a co-defendant to the suit, as he was interested in contesting the demand of the plaintiff and of all other persons claiming to be creditors of the firm.

The principle of that case applies to a case constituted as this is. Here a creditor of the partnership of the seven, who is also a creditor of the partnership of the two, (those two being two of the seven,) has filed his bill against the personal representatives and devisees of the two deceased partners and the assignees of

the surviving partners,

Brown v. Weatherby.

alleging that the joint estate is sufficient to pay the joint debts. Taking that to be the case, the plaintiff, who represents the joint creditors, has a right to have the surplus of the separate estate of each of the deceased partners, which may remain after payment of their separate debts, applied to pay such part of the partnership debts, as the joint estate may not be sufficient to satisfy. Now it seems to me that, for the purpose of ascertaining what is the surplus of the separate estate of A., one of the deceased partners, the suit must be conducted in such a manner as that the persons interested in the separate estate of B., the other deceased partner, shall know what is the true surplus. Because it is of very little use to have a suit in order to ascertain what is the surplus of the separate estate of A., conducted in such a manner as not to bind those who are interested in the separate estate of B. And it appears to me that, inasmuch as if those interested in the surplus of the separate estate of B., are not present in a suit which is instituted for the

purpose of ascertaining what is the surplus of the sepa [*11] rate estate of A., as against the persons *interested in

the surplus of the separate estate of B., nothing is done. Because, if you filed a separate bill for the purpose of ascertaining what was the surplus of the separate estate of B., you would have to do, all over again, in that suit, that which was before done in the suit filed for the purpose of ascertaining what was the surplus of the separate estate of A.: and I apprehend that it was upon that principle that Sir John Leach decided in the case of Wilkinson v. Henderson. And though I admit that there may be some inconvenience resulting from making all the parties interested in the different separate estates, parties to the same suit; yet I am far from thinking that all inconvenience is avoided by instituting separate suits against the parties interested in the several separate estates. The result of which would be that you would have, as against the parties interested in each of the separate estates, to make out that you have duly administered the separate estate of every other partner. So that, as it appears to me, unless you do it all at once by one suit, you may have to do, four or five times over, that which you have done once already.

Jackson v. Woolley.

I must say that, in my opinion, the case of Wilkinson v. Henderson applies; and that the demurrer ought not to be allowed on the ground of multifariousness.

With respect to the question about the heir-at-law, I remember very well that, at the time when I had to prepare the bill in Baring v. Noble,(a) I considered the point; and it was distinctly impressed on my mind then and has been ever since, that, to a bill filed under Sir *Samuel Romilly's Act (47 [*12] Geo. 3, sess. 2, c. 74) for the purpose of administering real assets devised, the heir ought to be a party.*

1841

JACKSON v. WOOLLEY.-WOOLLEY v. JACKSON.

Costs-Executor-Residuary legatee-Creditor.

20th February.

A married woman being entitled to a share of a residue for her life, with remainder to her children, who were infants, a bill was filed by her and her husband and their children, by their father as their next friend, against the executor and the co-residuary legatees, for the administration and distribution of the testator's estate. When the executor put in his answer, a balance was due from him, and he paid it into court. Afterwards, he paid the whole of testator's debts remaining unsatisfied, some of them before and the rest after the usual decree; whereby a balance greater than the fund in Court became due to him: and the Master so found. After the report had been absolutely confirmed, the husband died, and his widow having de clined to take any step towards the further prosecution of the suit, the executor filed a supplemental bill, praying to have the fund in Court, exempt from all costs, paid to him, in part of the balance found due by the Master. The Court ordered the executor's costs of both suits, as between solicitor and client, to be first paid out of the fund, then the costs of the defendants, the co-residuary legatees, of both suits, and, lastly, the costs of the widow and children, of the supplemental suit, but not of the original suit.

MARY, the wife of Thomas Jackson, being entitled, for her life, to a share of a testator's residuary estate, with remainder to

(a) 1 Mer. 529.

* On the 20th of February, 1841, his Honor delivered his judgment at length, upon the question regarding the heir; for which see ante, Vol. X. p. 125.

Jackson v. Woolley.

her children, who were infants, the original bill was filed by Jackson and wife and their children, by their father as their next friend, against Woolley and Johnson, the executors of [*13] the will, and the *other parties interested in the residue, for the administration and distribution of the estate. Woolley, who was the principal acting executor, having admitted, in his answer, that a balance was due from him, an order was made, in obedience to which he paid the balance into Court. Some of the testator's debts were paid before the commencement of the suit. Woolley paid the rest pending the suit, some before and some after the usual decree had been made. After the confirmation of the Master's report, from which it appeared that all the debts had been paid, and that a balance, considerably exceeding the fund in Court, was due to Woolley, T. Jackson died; and his widow having declined to take any step towards the further prosecution of the suit, Woolley filed a supplemental bill against her and her children and the defendants to the original suit, stating the proceedings in that suit, the death of Jackson and the refusal of his widow to prosecute the suit, and praying that he might have the benefit of the suit and the proceedings therein, and that the whole of the fund in Court might be paid to him in part satisfaction of the balance found due to him,

Mr. Knight Bruce and Mr. Wilbraham, for Woolley :-Our client had a right to file a bill to get his own fund out of Court; and he is entitled to have the fund paid to him exempt from the costs of all the parties, except his co-executor, Johnson. Johnson, we admit, is entitled to be paid his costs out of the fund; as they are an expense which his character of executor has brought upon him but the other parties, not having any fiduciary character, must bear their own costs. The surviving plaintiffs in the original suit rendered the supplemental suit necessary, by refu [*14] sing to appoint a new *next friend. Besides, they were

informed, by Woolley's answer to the original suit, that the estate was insolvent; and consequently your honor cannot give them their costs, unless you are prepared to lay down that