3 Johns. Ch. 427 | New York Court of Chancery | 1818
The substance of the plea is, that the bill does not contain proper parties, and it discloses facts showing that there are judgment creditors interested in the surplus moneys, and who have a prior claim to that of the plaintiffs. The plea only states the facts from which we are to infer that further parties are necessary, and then, instead of saying affirmatively, that additional parties are necessary, the defendants say they are not bound farther to answer, and plead those facts in bar. Such a plea was held to be informal, and leave was given to amend it, in Merrewether v. Mellish. (13 Ves. 435.)
But though the plea be censurable for the multifariousness of its matter, it nevertheless discloses a fatal objection to the bill, as it now stands, and I am not inclined to overrule it altogether. The judgment creditors mentioned in the plea must be made parties; for their claim to the Surplus may be better than that of the plaintiffs, and the plaintiffs cannot obtain a decree for it, until they are heard. I shall, therefore, let the cause stand over, with liberty to the plaintiffs to amend their bill by making those Creditors parties; and it must be upon the payment of the costs of the pleas and the Subsequent proceedings; but in
Order accordingly.