Davoue v. Fanning

| New York Court of Chancery | Dec 16, 1819

The Chancellor.

The defendant has demurred specially to the bill, and assigned in the demurrer several reasons in support of it. The objections all appear upon the face of the bill, and are, therefore, proper subjects for a demurrer.

1. The first objection is to a want of parties. The plaintiff claims from the defendant, as executor to the will of Frederick Davoue, deceased, a specific legacy, and he claims as a residuary legatee, and names several persons as being residuary legatees with him. It is a clear point, that they ought to have been made parties to the suit. It was considered in the case of Brown v. Ricketts, (3 Johns. Ch. Rep. 555.) as a settled rule, that though one legatee might sue alone for his specific legacy, without making the other legatees parties, yet where he claims as one of the residuary legatees, they must all be parties. This demurrer is, therefore., well alleged.

2. Another, and a more fatal objection to the bill is, that it seeks to be relieved against a former decree of this Court, in which the plaintiff, together with the defendant, and the other legatees, were parties. The bill, as to thé plaintiff, was taken pro confesso, he being absent from the state, but he is entitled (and so it is admitted in the demurrer) to come in and defend that suit, and to open the accounts. The statute (1 N. R. L. 486. sess. 36. c. 95. s. 9.) provides for his case. His remedy is by coming in to defend, under the provision of the statute, and not by instituting a new suit, while the decree in the former suit is left in full force. It must be intended, for the present, that the decree was duly taken against him by default, and was correctly rendered. A decree cannot be impeached by an original bill, except on the ground of fraud, and no such allegation is made in the bill. So long as the former decree remains undisturbed, it is a bar to this suit. It cannot be pleaded in bar, until it is signed and enrolled, but it might be insisted on by way of answer; (Anon. 3 Atk. 809. Kinsey v. Kinsey, 2 Ves. 577.) and when the decree in the former suit appears on the face of the bill, the defendant may demur. (Redesd. Tr. p. 196.)

It would be most disorderly, and lead to great confusion and endless litigation, if a new and original bill between the same parties, and concerning the same matters, could be sustained, while the former decree remained untouched. The decisions of the Court have clearly and wisely established a different rule.

As early as the case of Read v. Hambey, (1 Ch. Cas. 44. 2 Freem. Rep. 179. S. C.) a demurrer to an original bill was allowed, because it sought to alter or change a former decree, and this was considered as a dangerous and irregular proceeding. Lord Talbot, afterwards, in Taylor v. Sharp, (3 P. Wms. 371.) held it to be an established rule of the Court, that a party could not obtain relief against a decree by original bill, “ for that the decrees of the Court would be opposite, and contrary, one to the other, which would breed the utmost confusion.” The same principle, in nearly the same words, was, also, declared by the counsel for the defendant, on appeal to the House of Lords, in the case of the Earl of Peterborough v. Germaine, (1 Bro. P. C. 281.) and the doctrine was sanctioned by the Court. The same rule is, also, laid down by Lord Hardiviclce, in the case of Shepherd v. Titley. (2 Atk. 348.) We have, also, the cases of Granville v. Commoners of Epworth, (Bunb. 56.) and of Wortley v. Birkhead, (2 Ves. 571 3 Atk. 809. S. C.) in which a demurrer to the bill was sustained for the same cause. The language in the latter case was, that such a bill could not be brought to impeach a former decree, but for fraud in obtaining it. That the opinion of the Court, in one decree, could not be varied by an original bill, but the party must first get rid of the decree by a rehearing, or a bill of review, or a supplemental bill, in the nature of one, or by appeal, or upon special application to the Court. That as the party might have reached the equity of his case under the former decree, he cannot attain it by a new bill.

The same doctrine has been already recognised by this Court in an analogous case. (Gelston v. Codwise, 1 Johns. Ch. Rep. 195.)

3. A third reason for the demurrer is, also, well founded. The bill blends together a demand of the plaintiff, as legatee, against the defendant, as executor, and also a demand of the plaintiff in his private character, against the defendant in his private character, being for work bestowed, and money expended, to and for the use of the defendant. A demurrer will lie for such multifariousness of matter which requires totally distinct examinations and accounts. In the case of The Attorney General v. Corporation of Carmathon, (Cooper's Eq. Rep. 30.) an information was filed for misapplication of some property, held for purposes of public utility, and of other property held in trust for private charity, and a demurrer to the bill for multifariousness was allowed. In the downright language of Lord Eldon, on that occasion, “ the two things don’t hang properly together.” The principle of that decision is clearly and perfectly applicable to this'case.

The bill must, therefore, be dismissed with costs.

Decree accordingly.