B. & J. Q. Aymer v. Gault & M'Namara

2 Paige Ch. 284 | New York Court of Chancery | 1830

The Chancellor.

The bill in this case is properly filed, and the complainants are entitled to their costs out of the fund. They were strictly stake holders, and could not with safety have paid this money to either of the defendants. They have acted with perfect good faith, and are entitled to the protection of this court. If the bill had been taken as confessed against Gault on a personal service of the subpoena, or before the revised statutes went into operation, it would have been a matter of course to decree the fund to the other defendant, with costs over against Gault. Such will still be the decree, after complying with certain formalities required by the revised statutes, if the facts stated in the complainant’s bill are established before a master. In suits which were pending at the time the revised laws took effect, the rights of the parties must remain as they then existed; but the remedy, so far as relates to the practice of the court and the manner of ascertaining that right, must be according to the new law, as far as the proceedings can be made conformable thereto without impairing the right. (4 Wendell’s E. 206, 220, 211.) In the case of absentees, by the former practice of the court the bill taken as confessed for want of an appearance was considered as conclusive against them, unless they came in and answered within the time limited by the statute. The legislature have now interposed further guards for their protection; not to alter the rights of the complainant but to preserve and protect the rights of the absentees if any such rights exist. The 126th section of the article of the revised statutes, which relates to proceedings in this court against absent, concealed, or non-resident defendants who are not personally served with process and who do not appear, makes it the duty of the court to direct a reference to a master, to take proof of the facts and circumstances stated in the bill, before any decree can be made. In this particular case it probably will be mere form, as the real grounds of litigation, if any such exist in this case, are between the defendants. And the rights of the defendants as between themselves cannot be settled under that order of reference. AU that can be inquired into under this order is as to the matters stated in the bill, and which are necessary to show that it was properly filed as a bill of interpleader. If the bill was properly filed, the defendant who has appeared will be entitled to possession of the fund after deducting the complainants’ costs; but under the equitable construction of the 131st and 132d sections of that article of the revised statutes, he will be obliged to give security to refund in case the other defendant appears and is admitted to defend; and in default of giving such security, the fund must remain in court until the expiration of the ■ time limited by the statute, unless the rights of the parties are sooner ascertained.

There must be a reference to a master to take proof of the facts and .circumstances stated in the complainants’ bill, so far as respects their right to file the bill of interpleader against the defendant Gault; with liberty to the master to examine the complainants on oath in relation to the facts stated therein. On coming in of the report, it may be presented to the court on any regular motion day for a final decree thereon.