25 N.J. Eq. 516 | N.J. | 1874
The facts involved in this controversy will be found so fully stated in the opiniou of the Chancellor, read in the court below, that I feel it is quite unnecessary here to reproduce them in detail. They will, consequently, be referred to in a general way, and only so far as may be requisite to present the questions considered and decided.
Mary Dorsheimer, alleging herself to be an idiot, by her guardian, exhibited this bill. The purpose was to recover her distributive share in the estate of her grandfather. This ancestor died intestate, and his administrators made a final settlement of their accounts in the Orphans Court. It is shown that they duly paid over the residue of the moneys thus appearing to be in their hands, to the various descendants of the intestate, with the exception of the share now in dispute in this action. This last share was paid over by the administrators to one John Rorbaek, by virtue of an assignment thereof, alleged to have been made by the complainant to him. The first branch of this controversy relates to the validity of this instrument. The complainant insists that it was obtained from her by fraud, and that the money was paid under it by the connivance of the administrators. These administrators thus inculpated being dead, the suit is against their representatives. John Rorbaek is also a defendant. The bill, in this aspect of it, seeks to charge this money on both Rorbaek and the administrators now before the court. The decree of the Chancellor in this respect, was to the effect that this defendant, Rorbaek, was primarily responsible, and. that a secondary liability vested in these representatives.
The defence interposed to this part of the case, was two fold. Eirst, that no fraud in obtaining the assignment in question and in paying the money upon it, was shown. But I think these facts are very clearly established. The Chancellor has briefly stated a portion of the circumstances, and has, in a measure, discussed the evidence. I do not feel it incumbent on me to do so. It seems to me that the testimony cannot
But, in the second place, it was said that this charge of fraud in the procurement of this assignment, was not set out as a substantive part of the complainant’s case, but was inserted merely in the charging part of the bill, in anticipation of the defence of payment.
It must be admitted that this pleading is dangerously meager in point of substance, and is defective, in many respects, in point of form. On account of these defects, it is somewhat difficult to say where the stating part of the bill ends. It is not certain, therefore, that the charge of fraud in question, is not a part of the statement of the complainant’s case. And it is also to be remembered that the rule is not entirely inflexible, that all the grounds of suit must be embraced in the stating portion of the pleading. Indeed, so far is this from being the case, that in his discussion of this subject, Judge Story, in his treatise on Equity Pleading, (§ 32 a) says: “ But if the material facts are specifically averred, there does not seem to be any positive rule of law which requires that those facts should be averred in the stating part of the bill, and precede what is technically called the charging part of the bill. Regularly, however, all the material parts of the plaintiff’s case will certainly' find their more appropriate place in the narrative or stating part of the bill.”
It was also further urged, in reference to this same matter, that even if the charge of fraud was to be considered as a part of the narrative of the complainant’s case, still it was not charged with sufficient particularity. Many cases were cited by counsel to establish the doctrine that an averment of fraud in general terms was inadmissible. There can be no doubt as to the rule. In equity, as at law, every material fact must be stated with reasonable fullness and particularity. But this imperfection, if it is to be the subject of exception, must, in the main, be brought to the notice of the court by a demurrer. It is but seldom, and only when the statement is
The foregoing are the grounds contained in the appeal of John Rorback, and for the reasons stated, I think the decree in these respects, should be in all things affirmed.
The other branch of the case arises on the cross-appeal of Mary Dorsheimer, the complainant in the court below. The part of the Chancellor’s decree thus objected to, appertains to the following facts :
It has been already stated that the bill is filed against the administrators of the deceased administrators. But it also makes defendants the sureties on the bond of such deceased
This joint proceeding against the administrators or their representatives, and the sureties on the bond, has in its favor no English precedent. But there are cases in this country which, where certain conditions exist, sanction the course-The leading case in this line, most pressed upon the argument, is that of Carow v. Mowatt, 2 Edw. Ch. R. 57. This decision sanctions the procedure in question, in all cases where the remedy at law on the bond is difficult and doubtful, and it appears, further, to hold that such emergency arises where the original administrators are dead. The adjudications of the courts of South Carolina and Virginia sustain the same doctrine. But I cannot assent to the reasoning on which these cases rest. Their principal grounds seem to be, that such course of practice is highly convenient, and that it is beneficial to the surety. But the argument derived from these considerations, proves by far too much, for it would clearly legalize a resort to equity in all cases of suretyship. It would always prevent a multiplicity of suits, and the presence in court of the surety would, in a measure, be advantageous to him, as he could watch the proceeding against his principal, and thus assure himself against an illegal or excessive recovery, for which an ultimate responsibility may rest upon himself. But if equitable interposition is to be thus justified, it seems
Independently of these general objections to the jurisdiction in question, it seems to me there are others which specially apply in the present case, and to all similar cases, and which are not to be obviated.
This suit is brought by a single distributee of an estate. The other distributees are not parties. The moneys secured by the administration bond is a common fund, established by law for the equal benefit of all these distributees.
Bat, even if the foregoing reasons were not controlling, and if 1 thought, under proper conditions, the proceeding by this joint remedy in chancery could sometimes be used, still, in my opinion, it could not be resorted to in the present ease. My reason for this conclusion is, that the remedy at law is neither difficult nor uncertain. The plain course of action is this: to take out letters of administration de bonis non on the estate of the intestate; demand the moneys admitted to be in the hands of the original administrators at the time of their death; and if not paid, to treat such refusal as a breach of the bond, and thereupon apply to the Ordinary for an order to put it in suit. The administrator de bonis non can then proceed to obtain an order for distribution, and can thus, with technical regularity, pay the shares which are unsatisfied. I am unable to see any obstacle to this course.
In my judgment, the decree of the chancellor should be in all things affirmed, hut without costs on either side.
Decree unanimously affirmed.