[ * 245 ]
Several objections are taken on the part the defendants to the regularity of the proceedings.
1. The lunatic himself is not made a party defendant.
*245[ * 246 ]
*244The bill contains no prayer for process against the lunatic, and, therefore, he is not technically, and according to the established test, a party to the bill. (Fawkes v. Pratt, 1 P. Wms. 592. Windsor v. Windsor, Dickens, 707. 15 Vesey, 164.) The bill is against the committee, and seeks payment of a debt due from the lunatic; and the question arises, whether the lunatic ought to have been joined with his committee as a party defendant. If he had been joined, it would seem to be mere matter of form, and the committee would have been directed, as of course, to put in his answer, as his guardians. It would have been their answer, though in his name, it he be made a defendant, he is to answer by his committee. (Dickens, 233. 460.) When the committee are made defendants, there can be no use in joining the lunatic also, for the custody of the estate is no longer in him, but in this Court, under the administration of the committee. Though the books speak of the lunatic as a proper party, (Lloyd’s case, Dickens, 460.) yet I do not perceive its necessity. The payment of the debts due from the lunatic is now usually sought, by a petition to the Court, as the funds are supposed to be under its entire control. Thus, in the case ex parte M'Dougal, (12 Vesey, 384.) the chancellor observed, that the universal course was, where a petition was presented for the payment of a debt due from the lunatic, to apply the fund in discharge of the debts; and, if there *245be any reasonable doubt of the debt, it must first be made the subject of consideration at law. So, in the case ex parte Hastings, (14 Vesey, 182.) the petition was on the part of the committee, praying that the lunatic’s debts might be paid out of a fund, in bank, to prevent the arrest of the lunatic at law; and Lord Redesdale said, *(2 S. & Lefroy, 439.) that the Court would, on application, order possession to be delivered, by the committee, tó the undisputed heir of the lunatic, on his death, without putting him to his ejectment.
[ * 247 ]
Until the statute of 43 Geo. III., there was no special authority given to the Court, or to the committee of the lunatic, in England, to sell or mortgage his real estate for the payment of his debts. The Court did not conceive it to be any part of its duty, or that it had the power. (2 Vesey, jun. 73. 74. 14 Vesey, 182. 8 Vesey 79.) The English cases are not, therefore, quite applicable on this point. The custody of the lunatic is committed, in England, not to the Court of Chancery, but to an individual selected by the crown, who is generally, though not always, the person who has the custody of the great seal. (3 Atk. 635. Dickens, 553.) But here the charge of the person and estate of the lunatic, and' his maintenance, is expressly committed to the chancellor; (N. R. Laws, vol. 1. 147.) and the duty of providing for the payment of the debts is specially enjoined. For this purpose, the committee is to exhibit, under oath, within six months from his appointment, an inventory of the estate, debts, and credits of the lunatic; and when the personal estate shall be insufficient for the discharge of the debts, he is to present a petition to the chancellor, setting forth the particulars and amount of the estate and debts. If the personal estate shall appear to be insufficient, it is made the duty of the chancellor to cause so much of the real estate to be sold as shall be necessary for the discharge of the debts. These provisions render the payment of the debts out of the lunatic’s estate no longer a matter of discretion, but of indispensable duty; and they contemplate the committee as being charged, (though, undoubtedly, under the control and direction of this Court,) with a trust to be performed for the benefit of creditors, and an agency in the payment of the debts and the administration of the estate. To what extent *these new duties of the committee may necessarily lead, I need not now examine, nor am I altogether prepared to say. The view of the subject under our statute is, certainly, greatly varied from that under the English law ; and I entertain no doubt that the committee may be called upon in this Court by the creditors for the payment of their debts, without making the lunatic a party.
This question of necessary parties is always more or less *247a matter of discretion, depending on convenience. In this case, it would be quite absurd to bring in a party who has no capacity or power of action, except by the very persons already before the Court as his trustees, and when the Court is only to look to the certainty of the debt, and to the state of the assets, in order to provide for its payment.
A party who a^binC°Piiied against him as h/Sfand'entors his appear-h“sCaddit¡on°of committee,&c., wards1/ ífter suffering the oi^afinai dScree, object that ^ a4insthim individually, miuee^&c00™" This Court ‘”ds"ot to form, Before a sill ff0 cmfesso** special order mustabe“entered2. Another objection is, that the appearance of the defondants in pursuance of the subpoena was in a suit of the plaintiffs against them individually, and not in their official capacity as committee; and that, as all the subsequent proceedings of the plaintiffs were against them as a committee, no notice was taken of them, as if the proceedings were not in the suit' to which they had appeared.
[ * 248 ]
I apprehend that the defendants are too late with this objection, whatever consideration might have been due to it, if it had been made on the return of the subpoena, and the entry of the appearance. There was no bill filed by the plaintiffs, but the one in the suit against the defendants, as committee, in which the existence and history of the debt against the lunatic, and of their neglect or refusal to pay it, after admission of its being due, is particularly set forth. A copy of this bill was taken by the solicitor for the defendants, before their appearance. If the subpoena was not properly filled up, according to the prayer in the bill, and they were not properly entitled by their addition, why was not the objection made in season ? They were informed of the contents of the bill. I shall *consider the process and appearance as sufficiently applicable to that bill, and the defendants shall not now be permitted to deny it. It is not to be tolerated in this Court, which is governed by substance, and not by forms, that the party, after taking a copy of the bill on which the subpoena had issued, and in which he was properly entitled, and entering his appearance without his addition as committee, shall lie by silently, and suffer the complainant to go on, unsuspectingly, step by step, down to a final decree, on the ground of a valid appearance, and then start up with the objection that he had never appeared in that suit. I can only say, that such a course of practice will never answer any purpose here.
3. Another objection is, that the defendants having entered their appearance on the 18th of July, 1815, they were entitled to the service of a special rule to answer, before the bill could be taken against them pro confesso.
*248[ * 249 ]
*247The rule for taking the bill pro confesso, without the service of any special order for that purpose, was entered on the 3d of January last. Since that time a general rule has been provided for the case of neglecting to answer after appearance; but the decision in Caines v. Fisher, (1 Johns. *248Ch. Rep. 8.) had then been made, requiring such a special rule to be served, before the entry of the order to take the bill pro confesso. The entry of the order of the 3d of January was¡ therefore, irregular, and if the defendants had applied to set that order aside as soon as they had knowledge 0f it, and due opportunity to apply, they would have been heard. But it is admitted in the petition, that the defendants, by their solicitor, received notice on the 1st of June last, that the cause would be brought to a hearing on the 10th of that month, in order to obtain a reference. This was sufficient information to put them on inquiry, and it was decided evidence that their default had been entered. It is further admitted, that an order of reference was obtained on the 21st of June, *and that notice was received by their solicitor on the 7th of August, to appear before a master on the subject of the reference; that a further notice was received by him, on the 13th of September, to hear the report, and that on the 20th of September another notice was received, that the cause would be brought to a hearing on the master’s report on the 30th of September. It is, lastly, admitted in the petition, that a final decree was entered on the 30th of October, and no reason whatever is given why the defendants have preserved silence until this time. If an irregularity in practice can be waived in any case, this must be that case ; for the rule requiring a special order on the defendant, who has appeared to answer after the expiration of the first ordinary rule to that effect, was intended for his benefit, and is, in fact, an indulgence not granted to defendants who néglect to appear. There is good sense and justice in the practice in the Courts of law, that a defective notice or rule is deemed to be cured, and a default is deemed to be waived, by the neglect of the opposite party to complain of it, as soon as it comes to his knowledge. The reáson of that practice applies to this case, in its full force. The defendants, with knowledge of the facts, suffer the plaintiffs to go on, unconscious of the mistake, and to accumulate labor and expense, until the cause arrives to the final decree, before they make any suggestion of the omission of the service of the second rule on them to answer. They do not even pretend that they have any merits or defence to make. If a person will be silent, when, in conscience, he ought to speak, it is equity that he be debarred from speaking when conscience requires him to be silent. The defendants, therefore, come too late with this objection.
4. The last objection is, that by an order of the 19th of September last, the master’s report was to stand confirmed, unless cause was shown to the contrary in eight days, and *250*yet that by an order of the 23d of September, being within the eight days, the cause was set down for hearing on the report, for the 30th of September.
The answer to this is, that the setting down the cause within the eight days, for a day subsequent to the expiration of them, way a preliminary measure, which did not prevent the defendants, if they had so been inclined, from showing cause against the report within the eight days, or afterwards, when the cause was to be brought on to a hearing on the report of the 30th of September. They never availed themselves of any opportunity of showing cause, either within the eight days, or afterwards at the term, but evidently and intentionally waived it. They have sustained no prejudice by this proceeding. They do not pretend to any. The report was not confirmed until the 30th of October. The objection applies only to a point of formal and regular practice; and if it was, in itself, well founded, the defendants have justly lost the benefit of it by not making it in season.
5. But there are objections to the form of the decree, as it now stands, which appear to me to be well founded.
[ * 251 ]
The bill charges, and the master reports, and the defendants, by suffering the bill to be taken pro confesso, admit, that there is no personal estate of any consequence, it being insufficient to pay any material part of the debt. It would, however, have been more regular to have caused the defendants, by citation, or otherwise, to have filed their inventory as the statute enjoins, and to have stated, by petition, the particulars and amount of the estate and debts, to have enabled me to judge, in the first instance, of the situation of the estate. But, notwithstanding the defendants may have omitted their duty, yet I apprehend that the real estate can be sold, if the insufficiency of the personal estate is made out to my satisfaction, by the same proof, in substance, as it is, in this case, by the charge in the bill, *the order for taking it pro confesso, the report of the master, and the petition of the defendants.
The decretal order is, however, defective in this respect, that it directs the real estate to be sold by the master, whereas the statute evidently contemplates that the committee shall be a party to the sale and conveyance, after a report of the sale shall, previously to the execution of the deed, have been made and confirmed. A master, or other person, may, however, be joined with the committee in conducting the sale and executing the deed, and the time and manner are subject to my direction.
I shall, accordingly, set aside the decretal order of the 30th of October last, with liberty to the plaintiffs to set down the cause again for hearing at the next term, to the end that *251the deficiencies in this decree may be supplied; but the defendants shall not be entitled to any costs of this application as against the plaintiffs; and I shall further direct, that the defendants file an inventory, as the statute directs, by the first day of the next term, or show cause to the contrary.
Order accordingly.