2 Paige Ch. 280 | New York Court of Chancery | 1830
The objection in this case that all the proper persons are not before the court, so as to render the decree final as to the execution of the trust, is well taken If the debts of all the creditors who were specially provided for by the assignment, or who came in under the same, have been paid out of the assigned property, or have been otherwise satisfied, it should have been so alleged in the bill. If not, the creditors should be parties to the suit, so as to subject the assignees to but one account. Had it been stated in the bill that all the creditors who came in under the assignment, as well as those to whom a preference Was given, had been paid or satisfied, or that they had released to the complainant their claims under the assignment, the defendants might have been compelled, by plea or answer, to deny the fact, for the purpose of showing that all the necessary parties Were not before the court. As the objection appears on the bill itself, the proper mode of taking advantage thereof was by demurrer. In Palk v. Clinton, (12 Ves. 53,) it is said to be a universal rule not to allow an account to be taken in the absence of any person interested therein, who is within the jurisdiction of the court and can be made a party. The exception to this rule is where the parties interested are numerous and the court can get the control of the fund by a bill filed by some of them suing in behalf of themselves and all others standing in the same right. (Court v. Jeffery, 1 Sim. & Stuart, 105. Manning v. Thesiger, id. 106.) Creditors have been permitted to come in under a decree upon a bill filed by legatees. But that right was for a long time doubted. It was finally sanctioned from the necessity of the case; as the legatees could not be presumed to know who were creditors of the estate, or whether there were any such who ought to be made parties. That principle, however, cannot apply to this case; and there is no necessity of extending it for the benefit of debtors who assign their property to pay confidential creditors, or to coerce their creditors to submit to their terms. If the debts paid by the complainant, and assigned to him, are not to be considered absolutely satisfied, so as to give the other creditors the right to the fund to the exclusion of those debts, upon which point it is not necessa
The demurrer must be allowed; with liberty to the complainant to amend his bill, on payment of costs, so as to bring all proper parties before the court.