The bill is defective in one or two particulars—even supposing there is no want of proper parties. It avers the amount of the judgment to be still owing over and above all “ prior just claims by way of offset or otherwise.” The word prior should have been omit-
But the material question upon the demurrer is, whether the judgment creditor can. exhibit a bill here without making all the debtors in the judgment parties to the suit ?
I have heretofore had occasion to decide, upon demurrer to a bill, that all the defendants in a judgment were not ne-, cessarily to be made parties to the suit, but that the creditor might select such one or more of them as he could ascertain possessed the means of paying the judgment of some part of it and omit the rest. This, I believe, has often been done in practice, and I should have entertained no doubt of the correctness of the course, were it not for an intimation to the contrary in Child v. Brace, 4 Paige’s C. R. 309. But, the point, in truth, was not there expressly adjudicated by the chancellor: the objection not having been raised by demurrer or insisted upon in the answers ; and his honor has only made the observation that the objection of a want of parties, by omitting some of the joint debtors or defendants in the judgment, would probably be valid if made in proper time. The question, I take it, is still an open one ; but the strong inclination, as I believe, of the chancellor’s mind serves to admonish me of the propriety of bestowing a little more reflection upon it. It is a matter of considerable importance in practice, and the point should be definitively settled.
The objection to proceeding in this manner against one of a number of defendants in a judgment, seems founded
In a variety of other cases, the rule has been held not to apply ^ and as it has been made for the benefit of defendants, it is obvious the court may dispense with its observance when it is manifest that the defendants before the court can have no right to contribution from others or when, from insolvency or other special cause, it is made to appear that they cannot be benefited by having other parties made defendants with them. ' •
It appears to me that creditor’s bills, founded upon judgments at law and executions returned unsatisfied against joint debtors, are special cases under our system as now modified and established, which must, from necessity, be excepted from the ordinary rule requiring all joint debtors to
There is another important feature in regard to the exercise of this court’s jurisdiction: the debt must not only amount to one hundred dollars, but the property of the debt- or, when discovered, must likewise exceed that amount in value or the court may be obliged to dismiss the bill with costs: 2 R. S. 173, § 37 ; and by way of assurance to the court that it has jurisdiction and can take cognizance of the case, certain averments are required respecting the amount due on the judgment and the defendant’s having or being entitled to property: Rule 189. These averments are so essential that their omission renders the bill so imperfect as to be good ground for a demurrer: Mc Elwain v. Willis, 3 Paige’s C. R. 505. The possession and concealment or withholding of property to the amount of at least one hundred dollars is, therefore, a necessary ingredient in the foundation and equity of these bills ; and it may apply to one only out of a number of joint debtors by judgment— one may be possessed of property and be disposed at the same time to act fraudulently, whilst his co-defendants may be destitute of any means and entirely innocent of concealment or other fraud. Is not the creditor then in such a case
If they should put in separate answers, as they may do, and any one should deny the allegation or, in other words, the equity of the bill as respected himself and the complainant should fail to disprove such denial, it might be incumbent upon the court to dismiss the bill as to such defendant with costs, notwithstanding, upon the discovery or proof of property as to another defendant, the court could retain it and decree relief. In case the complainant would be subjected to this consequence in respect to an innocent defendant, although a joint debtor with the rest, then it follows he should have the right to discriminate and proceed against the property of others, without having to bring such innocent one before the court; and this too more especially if the complainant can excuse the omission by an affirmative allegation, similar to the one contained in the present bill, that from the information which he had received and which he
For these reasons I must adhere to the opinion which l have heretofore expressed; and overrule the present demurrer, so far as it assigns for cause the non-joinder of the other judgment debtors as parties.
In addition to the points founded upon the want of parties, it was said, upon the argument, that the complainant had not exhausted his legal remedy by such process of execution as was effectual to reach the individual property of all the defendants. The bill shows that two of the defendants could not be found to be served with the rest at the commencement of the suit. The plaintiff was, nevertheless, at liberty to proceed to judgment and execution, although in a modified form as respected any individual property of the two absent defendants. The proceedings were regular and valid —such as the law has prescribed—and for the purposes of a bill here I think the plaintiff must be considered as having fairly exhausted his legal remedy. I have no doubt upon this point.
The formal defects in the bill which I have mentioned as demurrable are not pointed out in the demurrer on the record. They go to the non-joinder of parties and a want of equity in the whole bill. The objections on this score have been taken ore tenus, and they are to be allowed: but with liberty to the complainant to amend his bill in this respect. Still, as the written demurrer is overruled, the defendant must pay the costs of it. Robinson v. Smith, 3 Paige’s C. R. 222 ; Garlick v. Strong, Ib. 440.