Brown v. Story

2 Paige Ch. 594 | New York Court of Chancery | 1831

The Chancellor.

From the course Which the former application took, and under the peculiar circumstances of this case, I do not think the defendant is precluded from making the present application, on the new facts disclosed. But I see no cause to alter the opinion which I then expressed, that this is a case in which the cause of action survived to the complainants. The order entered in the register’s of® fice, without a special application to the court, was clearly irregular. But as the other would have been granted on a special application, under the circumstances now disclosed, it is unnecessary to set it aside.

The separate claim of the defendant against J. Brown was' not a proper subject of litigation in this suit. It was not the claim for which the defendant brought his suit at law | and it could not properly be joined in this suit with the matters which were in controversy between the defendant and all the complainants jointly. If Story has any just claim against the executors of J. Brown, for a separate debt due from their testator, he must either bring a suit against them at law, or file a bill in equity to substantiate and recover that demand. And if the surviving complainants in this suit were solvent and responsible, there could be no necessity for bringing the personal representatives of J. Brown before the court, previous to talcing this account. But the defendant has lost his remedy at law against the estate of J. Brown, for any demand which existed against him jointly with the surviving complainants. And as they are alleged to be insolvent, so that he can obtain no benefit from the decree in this cause, if a balance should be found in his favor, it seems inequitable that he should be compelled to go on and take that account, in the absence of the personal representatives of the deceased complainant. If he would not be precluded by the decree in this cause from afterwards assertíDg his claim against the estate of J. Brown, in equity, he rnaM at least, file a new bill and go through the same course of litigation the second time, in order to obtain any balance which may be justly due him. He must therefore be permitted to file a cross bill, in the nature of an original bill, against these complainants and the personal representatives of John Brown, setting forth his joint claims, and alleging the insolvency of the survivors, by which he is compelled to resort to the estate of John Brown.

If the defendant files such cross bill within one month, and prosecutes it with due diligence, the proceedings on the reference must he staid until that cause is in readiness for a hearing, or until the further order of the court; so that only one accounting between the parties may be necessary.