of Walton v. Herbert

| New York Court of Chancery | Jul 15, 1837

The Chancellor.

The cases cited by the defendant, in support of the demurrer, do not apply to this case.

In the case of Travis v. Waters, 1 John. Chan. R. 48, the bill of revivor was filed by heirs and devisees, when it should have been filed by the executors, &c.

And in the case of the executor of Brasher v. Van Courtlandt, 2 John. Chan. R. 247, it was objected that-the subpoena was issued against the defendant in his individual capacity, when he should have been described as a committee. The court do not sustain the objection, it being made at the time of the final decree; but they do not decide what they, would have done in case the objection had been made upon the return of the subpoena.

It is by inspecting the bill that the defendant ascertains the nature of the charge against him, the subpœna only gives, him notice that there is a bill filed against him, and if he be properly charged in the bill as executor, or devisee, or in, any other capacity, it is not a good objection, that, the subpoena. is issued against him generally.

In the case of Elmendorf v. Delancy, 1 Hopkins, 556, the court very properly remarks, “that it is essential that the defendants should be clearly designated as such; but it cannot be material whether they are designated by praying process against them in the form of courts of equity, or by a positive allegation that they are impleaded as defendants according to the for ms-of courts of law.”

Demurrer overruled, with posts.

Order accordingly.