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    Richardson vs. Richardson & Wing.
    Where the complainant amends his bill after answer put in, it is irregular te file a replication to the first answer before the time for answering the amendments has expired, although the complainant waives the necessity of an answer to the amendments.
    If a party suing in forma pauperis amends his bill after answer, under a com- - mon order, it must be upon payment of costs, as in ordinary suits; and if he has a meritorious claim to amend without costs, he must apply to the court, by special motion, upon affidavit, and notice to the adverse party.
    A party suing as a poor person is chargeable with the costs of setting aside-his proceedings for irregularity, or of a contempt, or of expunging impertinent or scandalous matter, in the same manner as other suitors.
    This was an application on the part of S. Richardson, one of the defendants in this cause, to set aside the replication to his answer, for irregularity. The-complaiuant prosecuted her suit in forma pauperis against the defendant 8. Richardson, upon an (order in the usual form. On the coming in of his answer, the complainant’s solicitor entered an order of course with the register, under the 43d rule of the court, allowing her to amend her bill as she should be advised, upon the payment of the costs of the further answer if such an answer should be put in. Several material amendments were then made to the bill; and N. Wing was also made a party defendant. The amendments to the bill were served on the agent of the defendant’s solicitor; but without waiting till the expiration of the eighty days allowed, by the rules of the court, to the defendant to answer the amended bill, the complainant filed a (replication. By which proceeding the defendant Richardson was precluded from answering the amendments.

      J. JUJlmoreaux, for the complainant.

      J. Ellsworth, for the defendant.
   The Chancellor.

The replication in this case was irregular, and must be taken off the files of the court. The 45th rule declares that where the complainant amends after answer, the defendant shall have the same time to answer, after such amendment, if a further answer is necessary, as he originally had. Where the complainant, as in (his case, waives the necessity of a further answer, if the defendant deems it essential to his defence to answer the amendments, he has the right to do so. 'And unless the defendant elects to abide by his former answer within that time, the complainant must wait until the expiration of the forty days, allowed to the defendant to answer, before he is at liberty to file a replication. In this case, as the amendments were served on the agent, the time for answering the amendments had. not expired, by forty days, at the time the replication was filed. The defendant will therefore have that time to put in his further answer, after the entry of the order upon this decision.

The counsel for the complainant, upon the argument, asked that his client might not only be excused from the payment of the costs of this application, but also from the payment of the costs of the further answer, which she is bound to pay by the terms of the order allowing the amendment. Although a party duly admitted to prosecute his suit as a poor person, cannot be charged with the general costs of the cause, in favor of the adverse party, he may be charged with interlocutory costs for any irregularity in the proceedings- on his part, or for the expense of expunging scandalous or impertinent matter from any of his pleadings or proceedings, or for the costs of his contempts. (1 Newl. Ch. Prac. 603. Murphy v. Oldis, 2 Moll. R. 475.) If he were exempt from the payment of such costs, the adverse party would have no protection against his irregularities in practice. And it is sufficiently burthensome to defendants lobe compelled to litigate their rights with those who are not to be chargeable with the ordinary costs of the suit, although such suit turns out to have been wholly unfounded. Neither can I relieve the complainant from the payment of the costs of answering these amendments, of which she has assumed the payment., by the order entered by her solicitor, as a condition of the amendment. Before a complainant can be admitted to prosecute as a poor person, he must, upon oath, present a prima facie case of right against the defendant. And it would be unreasonable to permit him, after the defendant has put in a perfect answer to the original bill, to amend as a matter of course; and to insert any new matter which he might think fit, without paying the extra costs of a further answer. In such a case, if he thinks proper to amend under a common order, it must be upon the payment of the costs of the further answer. But if hé has a meritorious ground upon which to found a claim for permission to amend his bill without costs, he should apply to the court for an older to that effect, upon an affidavit showing his belief in the truth of the matters which he seeks to insert in his bill by way of amendment ; of which application due notice should be given to the adverse party. In the present case it is doubtful whether the amendments can benefit the complainant, although it might be unsafe for the defendant to leave them unanswered. And no affidavit is produced on her part, showing that she even believed the charges contained in these amendments were true.

The complainant must therefore pay the costs of this application ; and if a further answer is put in, she must pay the necessary costs of such further answer, according to the condition of the order allowing the amendment.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Denniston vs. Vischer.
    On an appeal from an interlocutory order of a vice chancellor, retaining fees for solicitor and counsel, are taxable; but not a charge for an abbreviation of the pleadings, depositions and exhibits for the use of counsel. These last charges can only be allowed where the cause upon the appeal is heard as a calendar cause.
    A charge for abbreviating the schedules annexed to a bill, or answer, i» not taxable.
    This was an application for the relaxation of costs. The defendant having appealed from an interlocutory order of a vice chancellor, such order was reversed with costs. The appellant claimed retaining fees for her solicitor and counsel on the appeal; and also an allowance for abbreviating the pleadings in the cause, and the schedules annexed. The taxing officer disallowed these charges, on -the ground that they were not applicable to an appeal from an order made upon motion or petition.

      J. Rhoades, for the appellant.

      J. King, for the respondent.
   The Chancellor.

The principle upon which the allowance for retaining fees was made in the case of Lampman v. Hand & Whaley, (4 Paige’s Rep. 120,) is equally applicable to an appeal from an order made by a vice chancellor, upon motion or petition. The retaining fees must therefore be allowed in this case. And abbreviation of the pleadings, depositions and exhibits for the use of counsel upon the appeal, are only to be allowed where the cause upon the appeal is heard as a calendar cause, and not where it is entitled to be heard as a special motion. No allowance is made by the fee-bill for the abbreviating of schedules annexed to the bill or answer ; and such service is but seldom, if ever performed, except in those cases where the originals of such schedules are made exhibits in the cause. In- that case an allowance is made by the fee-bill for abbreviating them as exhibits. The charge for retaining fees must therefore he added to the bill as taxed; and no costs are to be allowed to either party on this application.


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    Kane vs. Van Vranken and wife.
    Although, where the answer is served on the agent of the complainant’s solicitor, double the usual time must elapse before such answer will be deemed sufficient, yet the replication must be filed within ten days after the answer is considered as perfect, in the same manner as if such service had been on the solicitor in person.
    Where the solicitor of a party makes a useless application to the court to correct a mere technical irregularity, which cannot injure or materially delay his client, be will not be allowed the costs of such application, as against the adverse party. Neither will he be allowed the costs of opposing a motion by the adverse party to correct an irregularity, which motion is rendered necessary by reason of his refusal, upon a proper application, to waive the irregularity.
    The solicitor himself is personally liable for the costs of correcting an irregular proceeding, occasioned by his negligence or gross ignorance, which is prejudicial to the rights of the adverse party; and if the costs arc charged upon the client in the first instance, he may recover them in an action against his solicitor.
    The question in this case arose as to the regularity of the service of the replication to the defendants’ answer. The answer was served on the agent of the complainant’s solicitor, and was not excepted to. The replication was served more than fifty days after the service of the answer, but within sixty days.

      J. V. L. Pruyn, for the complainant, insisted that as the answer was served on the agent of the complainant’s solicitor, he had twenty days after the time for excepting had expired £d file and serve the replication.

      S. Stevens, for the defendants, contended that the replication must be filed within ten days after the answer was deemed to be sufficient, according to the rules and practice of the court, without reference to the question whether the answer itself was served personally, or on the agent.
   The Chancellor.

The 50th rule of this court, and several of the succeeding rules, have declared within what time, in reference to some previous proceeding in the cause, the answer of a defendant shall be deemed to be a sufficient and perfect answer to the complainant’s bill. In all of those cases, if the time within which the answer is to be deemed sufficient, has reference to the service of any paper or notice in the cause, such time, according to the 15th rule, will be double, when such paper, or notice, is served on an agent. But the 65th rule requires the complainant to reply to the defendant’s answer within ten days after the answer is deemed to be sufficient ; without any reference to the previous proceedings, except so far as is necessary to ascertain when the answer became a sufficient and perfect answer to the complainant’s bill. The replication must therefore be put in within ten days after the answer is deemed sufficient; and without reference to the manner in which the answer was served.

As this is evidently a slip of the complainant’s solicitor, it would have been a matter of course to permit a replication to be served at this time, if there had been an affidavit of the complainant that he knew, or had reason to believe the answer was false or erroneous as to any material fact. The motion must be denied with costs, unless the complainant files and serves upon the defendants’ solicitor, such an affidavit, within twenty days after the entry of the order upon this decision, But if such affidavit is filed and served within that time, with a copy of the replication, the replication is to be deemed good from the time of such new service; and the defendants’ costs, subsequent to the time when the answer was deemed sufficient, including the costs of this application, are in that case to abide the event of the suit, and to be paid t© the defendants, if they succeed in their defence. It is the intention of the court for the future, to discourage all useless litigation, on account of mere technical irregularities in practice, which do not materially injure or delay the adverse par-j.y$ by refusing costs to the party who makes a useless application to the court to correct such an irregularity ; or whose refusal to waive the irregularity, upon a proper application to him for that purpose, renders such an appeal to the court necessary. These remarks, however, are not to be considered as applicable to the solicitor of the defendants, in the present case, as it is understood that his clients have put in an answer, in which they state that the whole amount of the mortgage money, for the recovery of which this suit is brought, has been fully paid ; and no application was made to their solicitor to waive the irregularity in filing the replication. The defendants are therefore entitled to the costs of setting down the cause upon bill and answer, and of opposing this motion, unless it shall be found hereafter that their answer is incorrect, in point of fact. Neither is it intended, by the adoption of this principle of disallowing useless costs, for the future, to sanction or encourage irregularities, arising from the negligence or gross ignorance of the solicitor, and which are prejudicial to the rights of the adverse party. In all such cases the costs of the irregularity ought, in justice to the client, to be charged upon the solicitor himself in the first instance. And if they are paid by the client, he may recover them of his solicitor, in an action on the case.


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    Boyd & Suydam vs. Hoyt & Parsel.
    Bn a creditor’s hill to reach the property of a judgment debtor, which has been transferred fraudulently or without consideration, two or more persons holding different portions of such property by distinct conveyances may be joined as defendants.
    Where the object of a suit is single, different persons having or claiming separate interests in distinct or independent questions, all connected with and. •arising out of the single object of the suit, may be joined as -defendants, so that the whole object of the bill may be obtained in one suit.
    A claim against two or more persons, to whom the property of a judgment debtor has been improperly transferred, cannot be joined in the same bill with a claim against one of the defendants, for compensation for waste committed on the real estate of the judgment debtor, after it had been pun. chased by the complainant on execution, hut before the time for redemption had expired.
    Where waste is committed upon real estate purchased under execution, between the sale and the expiration of the time allowed for redemption, the purchaser, if the premises are not redeemed, is entitled to the proceeds of the waste, in the hands of the judgment debtor, or of any other person who may have received the same without consideration, or with full knowledge of the equitable rights of such purchaser.
    If a joint claim against two defendants is improperly joined in the same bill, with a separate claim against one of the defendants, both or either of the defendants may demur to the bill for multifariousness.

      A demurrer to a bill for multifariousness, like a demurrer for a misjoinder at law, goes to the whole bill; and if the demurrer is allowed, the bill will be dismissed as to the party who demurs.
    The bill in this cause was filed by the complainants as judgment creditors of E. Hoyt, after the return of an execution unsatisfied, in pari, to reach certain property in the hands of the defendants, his son and son-in-law, which, as was alleged in the bill, had been placed in their hands in fraud of the complainants’ rights as creditors; and which they sought to have applied in satisfaction of the balance due on their judgment. It appeared that the defendants had no joint interest in the property sought to be reached by this part of the bill; but that such property had been received by them in divers ways and at different times. Another object of the bill was to reach the proceeds of certain waste, comrnitted by the defendant W. Hoyt, or by E. Hoyt, his father, upon certain lands which had been purchased in by the complainants on their execution, between the time of the sale and the expiration of the time allowed by law for redemption, wrhen the complainants became entitled to a conveyance from the sheriff. .E. Hoyt had removed from the state, and died intestate and without property, previous to the commencement of this suit. The defendants, severally, demurred to the complainants’ bill for multifariousness, which demurrers were overruled by the vice chancellor before whom the suit was pending. And from the decretal order, overruling the demurrers, the defendants appealed to the chancellor.
    The following is the opinion of the Vice Chancellor :
    D. Mosely, V. C. This is a creditor’s bill, filed to reach the things in action and equitable interests of the debtor, to satisfy the balance due on their execution.
    The bill sets forth the recovery of a judgment against Eliphalet Hoyt, the issuing of an execution and sale of his farm, and leaving a balance of upwards of $800 still due, with the usual averments ; and alleges that the debtor and one of the defendants removed from the premises some buildings and timber, before the plaintiffs received their deed, sold the same, took notes therefor, and that the notes were transferred to the defendants, some or one of them; that the debtor assigned other property to two daughters, one of whom intermarried with the defendant Parsel, who has received into bis possession that portion of the property assigned to his wife, and has possessed himself also of so much as was received by the other daughter, she being dead, and no administration taken on her estate. The bill further alleges the death of Eliphalet Hoyt, the debtor, and that no letters had been taken out on his estate, and charges the defendants as his fraudulent assignees ; and prays for a decree that, as to the proceeds of the sale of the buildings and timber, the one defendant may account directly to the complainants for the whole value thereof, irrespective of the amounts due; and that both defendants may account for the amount of the debtor’s estate, of which they have become possessed.
    There is a" demurrer to the bill for multifariousness, and which involves, I think, one of the nicest technical rules in •chancery pleading. The rule itself seems to be one well recognized and of salutary influence, but it is not to be denied that it is attended with much difficulty in its application; and if I have been able correctly to distinguish the cases that have been, under examination, it has appeared that many tilings put into a bill have been considered as rendering a bill multifarious in the English chancery, which are. not so treated in our courts.
    After endeavoring to trace the principle through many English cases, with much uncertainty and complexity, I come to the case of Fellows v. Fellows, (4 Cowen, €82,) in which the several judges in that court admitted the general rule that a bill containing things distinct in their natures against several defendants is bad. Justice Woodworth says, as the English judges said, that unconnected parties may he joined in a suit where there is one connected interest among them all, centreing in the point,in issue in the cause. This case, of Fellows v. Fellows, is one añore strongly analogous to the one under consideration than any one which precedes it; and the difficulty is not so great in discovering the true rule, as in applying it to the facts in a given case. In so far as the complainants in this case are concerned, the canse of action is evidently single; it is the judgment, the balance of which they seek to have paid out of the judgment debtor’s property, in whose hands soever the same may be. If the proceeding was by execution, it would go at once against every man having possession of any of the debtor’s property liable to execution. And this proceeding by bill is but another mode of extending an execution upon property not heretofore liable to it. As it respects the defendants, (and which is the direction the demurrer takes,) they are severally charged with a fraudulent interference and combination with this judgment debtor, to abstract his property so as to prevent the satisfaction of the complainants’ debt; and a demurrer will not lie (says Judge Woodworth) though the several defendants in a bill are unconnected with each other, if they have a common interest centering in one point in a cause. Now it is not difficult to perceive that there is a" question in this cause in which the defendants may be said to have a common interest, to wit: whether Eliphalet Hoyt, the debtor, transferred to these defendants his estate, to defraud the complainants. If the facts alleged be true, and they are admitted, each defendant, though unconnected with the other, did interfere and receive portions of this common fund, to the injury of the plaintiffs; and we may say, in the language of Judge Sutherland, in the above case-, here the general right, claimed by the bill, is a due application of the debtor’s property to the payment of plaintiff’s debt; here the general scope of the bill, and the only matter in litigation, is the fraud charged in the disposition of the estate, and in which charge all the defendants were implicated, though in different degrees and proportions, it is one matter—the property of Eliphalet Hoyt; and the point in issue is, upon which the right of all the parties must depend, whether the transfer of the property to his son and son-in-law was-fraudulent or not.”
    The only shades of difference in matter of fact between the above case and the one now before me is, that in the latter the debtor was dead before the bill was filed, and the time or times in which he transferred the portions of property, or in which they got possession of it, were a little farther asunder. As to the first point of difference, I apprehend that the death of the debtor, transferring his property fraudulently, does not" purge the offence in the assignee; and as to the second cause of difference, it seems not to exist in principle. It would introduce a rule too fluctuating and arbitrary, to allow a difference in point of time in receiving distinct portions of a debt- or’s property, to characterize the transactions as independent and unconnected.
    Again; in the language of Ch. J. Savage, in the above case, there was certain property in the hands of Eliphalet Hoyt, which, though not liable to be reached by execution, yet the law had set it apart to satisfy the demand of the first judgment and execution creditor who should file his bill to reach it. This fact was known to all the defendants, and each of them separately, as we are to intend, conspired with the said Eliphalet Hoyt to defraud the complainants, by each taking separate portions of his1 property. There was no privity between Walter Hoyt and Parse!, but there was a privity between Walter and Eliphalet Hoyt, and between Parsel (in a representative right) and E. Hoyt. The common point of litigation is the fraudulent transfer of the property ; if the source of their title be corrupt, the property was taken with the taint of corruption. The same doctrine is maintained through the whole case of Fellows v. Fellows as it was advanced by Ch. Sanford; and his decree overruling the demurrer was affirmed unanimously. At one period the property sought to be reached now, was the common property of Eliphalet Hoyt—the avails of the buildings, timber, notes and furniture. At that period the complainants had a right to call it out of his hands. But if there was at that time a common fund, then the division of it fraudulently is the point in issue, in which all the branches of it concentrate. It is believed that if Eliphalet Hoyt was alive, and we admitted the principle involved in the demurrer, he would be a necessary party to each suit brought against the several persons, who should have received from the common source of fraud several portions of his property. This would involve him in a multiplicity of suits. Again, if the matters were necessarily several and distinct, then it must follow that a debtor owing $500, and having property in notes, bonds and mortgages, or goods, amounting to $1000, might dispose of them to ten men, and the creditor be remediless. But it seems to me that it necessarily follows, from the peculiar nature of this remedy, that every person, in any degree participating in the fraudulent transfer of the debtor’s property, should be united in the suit. The usual averments in a bill are such, that if the debtor has lands held by one man in trust, choses in action by another, and goods by a third, the complainant prays for a discovery of the names of such trustees, in order that they may be made parlies to the bill when discovered. Parties to what bill 1 Not to a new several bill, but to this bill in which the prayer is. And, as saith Senator Golden, if the property be in the hands of several as trustees, though they hold different parcels of it, the suit is not for distinct matters any more than it would be if it was against Eliphalet Hoyt for money, notes and lands. There are indeed some features of the bill under consideration variant from the one in Fellows v. Fellows—that in particular which sets up as a cause of action the tortious removal of the buildings from the farm, and the claim to a decree for the whole of the damages arising therefrom, irrespective of the amount due on the judgment. So far as the taking of the buildings is in question, the bill perhaps might be read as though this was but a mode of setting out the consideration of the notes, and which notes, or the avails of the sales of the buildings and timber, are claimed to be applied towards satisfaction of the judgment. But if the prayer for relief, by having the whole of this paid directly to the complainants, is considered as giving to the demand the character of one remediable at law, then we apply the demurrer to it ore tenus ; if we do this, the consequence only will be that the defendants must pay the costs of the demurrer, and the plaintiffs may amend, by- striking out the whole of that matter, or by re-stating and correcting the prayer for relief, as they shall be advised. Perhaps a more correct resolution of the subject would be to say, that as the demurrer ore tenus is only to a portion of the hill, it must take the fate of a demurrer on record, and be overruled, if another part of the bill requires an answer. This question I consider as well settled in our courts—that when to any part of the bill, either as to the relief or discovery, the plaintiff is entitled to an answer, a demurrer to the whole will be overruled. Chancellor Kent reiterates the language of Ch. B. Comyns, that it would be unreasonable to refuse the aid a party is entitled to, in conscience, because he asked some thing more. (4 John. Ch. R. 276.) Now, unless more force is given to a demurrer ore tenus than if included in the pleading, all that it says is “ as to the cause of action growing out of the removal of the trees, &c, you have a perfect remedy at law; and as it respects one item of the claim, you should not have made another person a party.” if these causes of demurrer were specially assigned, as to this portion of the bill, the demurrer would have left the residue unanswered. It is true that in 6 John. Ch. Rep. 159, it is laid down that other causes may be assigned at the hearing, and such as may be unanswerable. The consequence of allowing a demurrer ore tenus is the payment of cost by the defendant of the demurrer on record, and permission to the plaintiff to amend. (3 Paige, 883.) How it is consistent for such a practice to prevail under the preceding rule is difficult to perceive, unless we say the objection was not urged. It does not appear to be noticed by the chancellor.
    The result is, that the demurrer for multifariousness is not sustained, and that the demurrer ore tenus is overruled, because part of the bill should have been answered. And as was said in Fellows v. Fellows, a similar case, if the complainant is not entitled to relief precisely in manner and form as prayed, the defendant can by answer show wherein; or he may deny the complainant’s right to relief in such form, and the equity of the case will mould the decree. And, as Chancellor Walworth says, (1 Paige, 286,) the defendants may at the hearing insist that the complainants shall be confined to such relief as they are entitled to under the circumstances. Again; Justice Sutherland says, that the “ forms of proceeding, and the power of the court to mould the decree so as to suit the various equities of the case, as established by the proof, enable it advantageously to settle, in one suit, rights and interests, which, according to the rules of pleading in courts of law, would necessarily result in various issues incapable of being tried in a single cause and disposed of in a single judgment.”
    If wc for a moment look out of the books and view the parties as they stand in relation to each other, it would seem that every principle of justice in respect to them requires that the whole of this family of children, who have been partakers in any portion of this property which Eliphalet Hoyt, the debtor, thus unjustly disposed of, instead of paying this debt, ought to be called in to bear such a portion of the burden as their respective shares of the fund will enable them to do. The whole subject is then settled in one suit; and while justice is done to the plaintiffs, it may also be administered between the defendants themselves.
    The demurrer is overruled with costs.

      ¿1. Kellogg, for the complainant.
    1. The demurrer being to the whole bill, if it is not well taken as to every part of the bill, it must be overruled. (Laight v. Morgan, 1 John. Cas. 49. Le Roy v. Verde, Id. 421. Verplank v. Caines, 1 John. Ch. Rep. 37. Kimberly v. Sells, 3 Id. 467. Higinbotham v. Burnett, 5 Id. 184.) There is no reason for a different rule in relation to multifariousness. All that is to be found in the books is an observation of Sir Samuel Romilly, arguendo, (18 Vesey, 72,) and repeated with approbation by Chancellor Kent, (6 John. Rep. 156,) that the objection to a bill, as multifarious, would be at an end if the answer to that objection was admissible ; that if all the parties were concerned in one transaction, all but that one might be left out- of consideration. A party might demur to that- part of the bill, in which he was not concerned, as multifarious. It is not indispensable to demur to the whole bill as multifarious, when there are portions of it in which he is jointly connected with another. A party might have the benefit of a demurrer for multifariousness, by limiting it to the particular part alleged to be_ multifarious. And in all the reported cases where a demurrer has been allowed, for multifariousness, it will be seen that in no part of the bill were the defendants jointly interested.
    2. The bill contains several allegations in which the defendants are jointly concerned in every respect, to which therefore the demurrer is inapplicable, and not well taken. The bill will be found to contain all the averments necessary in a creditor’s bill, by the 189th rule, and so far is a good bill to both defendants jointly. All persons interested must be made parlies, otherwise the defendants may demur for want of parties. (Cooper's. Pl. 185. Bailey v. Inglee, 2 Paige, 278.) The revised statutes authorize the joinder of these defendants as parties to the bill. (2 R. S. 174.) By section 38, the right is expressly given to .the judgment and execution creditors to file their bill against the defendant and any other person, to compel the discovery, &c. of the defendant’s property and trusts. The above provision is much enlarged by a subsequent statute. (Laws of 1833, p. 17, ch. 14.) This statute shows that a defendant must answer the bill, and deny all the fraudulent charges, without regard to his co-defendants. Creditors’ bills have ever been an exception to the general rule as to parlies defendants. (2 Mad. Ch. Rep. 152, 3.) But it may be said that the right in this case accrued before the revised statutes. It is perhaps sufficient to say, in answer to this, that the remedy given by the revised statutes is applicable to the right, even if such was the fact as to time. Without reference to the statutory provisions, the bili, both as -to form and substance, is fully sustained by the adjudged cases in equity. In Whalley v. Dawson, (2 Sch. & Lef. 367,) Lord B-cdesdale declared the rule to be, that where there was a general right claimed in the bill, and covering the whole case, the demurrer would not be allowed, though the defendants had separate and distinct rights. This rule was fully adopted by Chancellor Kent in Brinkerhoff v. Brown, (6 John. Ch. Rep. 139, 156,) a case in which, if in any reported decision, the charge of multifariousness would prima facie seem to apply. Chancellor Kent declares the principle "to be, that a bill against several persons must relate to matters of the same nature, and having a connection with each other, and in which all the defendants are more or less concerned, though their rights in respect to the general subject of the case may be distinct. This case had less in it to justify the joinder of the defendants therein than the one now before the court; and in many of its aspects, both as to discovery and relief, the several defendants had no connection whatever. But the case of Fellows v. Fellows, (4 Cowen, 682,) decided unanimously in the court of errors, is conclusive on this point. The specific charges against the defendants are entirely distinct and unconnected, and centre but in one point, viz. the defrauding the complainants of their debt. It is a case precisely like ours in every material fact, and the demurrer was in the same form exactly. I refer especially to the opinions of Chancellor Sanford and of Chief Justice Savage.

      The defendants are at liberty to assign verbal causes of demurrer at the hearing, but it is not to be allowed except upon payment of the costs of the demurrer on the record, and giving liberty to the complainant to amend. (3 Paige, 222, 233, Id. 440, 453.)

      F. G. Jewett, for the defendants.
    The bill is bad for multifariousness. Multifariousness is defined to be, to demand by one bill several matters of different nature against several defendants. (Milford’s Pl. 3d ed. 147.) The court will not permit several plaintiffs to demand by one bill several matters perfectly distinct and unconnected against one defendant; nor one plaintiff to demand several matters of distinct natures against several defendants, which is termed multifariousness, or improperly confounding together distinct matters. (Cooper’s Pl. 181, 2, 3. Coe v. Turner, 5 Com. Sep. 91, per Hosmer, Ch. J.) Sir" John Leach says, “In order to determine whether a suit be multifarious, or in other words contains distinct matters, the inquiry is not whether each defendant is connected with every branch of the case, but whether plaintiff’s bill seeks relief in respect of matters which are in themselves separate and distinct. If the object of the suit be single, but it happens that different persons have separate interests in distinct questions which arise out of that single object, it necessarily follows that such different persons must be brought before the court, in order that the suit may conclude the whole subject.” (Salridge v. Hyde, 5 Mad. 1.38.) .A bill seeking to enforce different demands against persons liable respectively is bad on demurrer. (Saxton v. Davis, 18 Ves. Rep. 72. Whalley v. Dawson, 2 Sch. Lef. 367, 370.) Lord Eedesdale says: “Where the subjects of the suit are in themselves perfectly distinct, it is a common ground of demurrer.” Hunn v. Norton, Hopk. Rep. 344, 347; Davoue v. Fanning, 4 John. Ch. 199; Brinckerhoff v. Brown, 6 Id. 139; 1 Vern. Rep. 416, 463; 2 Condensed Rep. 439, note; and Marcus v. Pebrer, 3 Simons’ Rep. 466, are full in support of this point.
    The bill contains tivo or more distinct grounds of complaint against several defendants. It contains alleged causes of action against W. Hoyt, wholly disconnected with any act of Parsel, his co-defendant, to wit: That Gyrus Howard was indebted to E. Hoyt, which Walter Hoyt has since received, or mow has securities therefor; that when E. Hoyt moved to Ohio, he had considerable amount in ready money and debts due to him, which Walter Hoyt afterwards had received and converted to his own use; that Walter Hoyt,"1 since the year 1883, has received from various persons who were indebted to to E. Hoyt money to a large amount, and converted the same to his own use; that W. Hoyt had taken and received all and each of said debts, &c. as well as other gifts from E. Hoyt, without any bona fide or valuable consideration; but that E. Hoyt transferred the same to W. Hoyt, or suffered him to take and collect the same, and keep the same from E. Hoyt’s creditors. And that in the removal and sale of the buildings, timber, fences, rails and other property attached and growing out of the freehold, from tire said lands of E. Hoyt, which were sold and purchased by the complainants, E. Hoyt and W. Hoyt proceeded in defiance of the complainants’ rights to their great injury, with a full knowledge of their rights. And the complainants claim and insist that as to the proceeds and avails of all the buildings, trees, timber, rails and fences which have come to the hands of said W. Hoyt, he is bound to account directly to the complainants for the same with interest; and as to all the other money, property and things in action received by W. Hoyt, the complainants claim they are entitled to the same with interest, to be applied in satisfaction of the balance due on their said judgment It has, therefore, two distinct objects, as against the defendant W. Hoyt, and comprises two distinct subjects of complaint, 1. The complainants claim compensation for the injury done the freehold, claiming it as purchasers, or as having had a lien by judgment; and that such compensation be paid to them without reference to any balance due to thém on their judgment 8. They Haim the avails of the personal property and things in action, other than that received from the avails of the buildings, &c„ transferred to the defendant W. Hoyt by E. Hoyt, for the purpose of defrauding his creditors, and which W. Hoyt received without consideration to be applied in satisfaction of the balance due on the complainants’ judgment. The bill also alleges that the defendant Parsel has possessed himself of property of E. Hoyt fraudulently; and it claims an account of the,same, and payment to be applied on the complainants’ judgment. But no relief is prayed against him as to the in jury done to the freehold. The bill does not state a case of indebtedness on the part of the defendants, or either of them, lo E. Hoyt, the judgment debtor, or that they hold any properly in trust for him, either express or implied—the peculiar grounds of a creditor’s bill. (2 R. S. 173, 4.) And, besides, the averment is not made in conformity to the 189th rule of this court. That rule requires the bill to allege that the judgment debtor has equitable interests, things in action, &c. to the amount of $100. (3 Paige’s Rep. 505.) The bill does not attempt to charge the defendants as uniting in any act complained of; but expressly disconnects them in every act, unless the formal allegation of confederacy and combination shall be deemed such. That is denied by the answer of the defendants. The case of Fellows v. Fellows does not decide any new principle or overrule any English rule; it merely applies the principles of law, long settled, to the facts in the case. It is evident that the bill in this cause 'claims two distinct rights, disconnected and not dependant upon each other, against sevéral defendants who have not a common interest in both claims.
    The rule that where a demurrer is put in to the whole bill, and any part of the bill requires an answer, the demurrer must be overruled, is not applicable to a demurrer to a bill for multifariousness. For, in the language of Sir Samuel Romilly, (18 Vesey, 72,) if that were sufficient, the objection to a" bill as multifarious could never be sustained. The same doctrine is held in the case of Brinckerhoff v. Browne, (6 John. Ch. Rep. 156;) also by Judge Sutherland, in Felloios v. Fellows, (4 Cowen’s Rep. 701.) “ It might be asked, if a bill is multifarious, does it not necessarily contain parts, each of which, if it stood alone in one bill, would require an answer 1 The rule seems to be well settled, that several defendants must have a common interest, not in a particular item or insulated charge in the bill, but in the point in issue in the cause.” (4 Cowen’s Rep. 701. 18 Vesey, 72.)
   The Chancellor.

So far as this bill seeks to reach the property of E. Hoyt, which has come to the hands of these defendants, respectively, without consideration, and to have the same applied in satisfaction of the balance due on the complainants’ judgment, there is no foundation for the objection that the bill is multifarious, because both defendants are joined in the same bill. The decision of the court for the correction of errors in the case of Fellows v. Fellows, (4 Cowen’s R. 682,) settles the principle that where a debtor conveys different portions of his property to several persons, in fraud of the rights of his creditors, a creditor who has obtained a judgment, and placed himself in a situation to enforce his right against the debtor and his fraudulent grantees, may file a bill against the grantor and all the grantees jointly; to reach the property conveyed to each, and have the same applied in satisfaction of his judgment. Whatever doubts, therefore, may have existed on the subject previous to this decision of the court of dernier resort, this must now be considered as the settled law of this court. The same principle is applicable to the case of a complainant who proceeds as a judgment creditor, after the return of an execution unsatisfied, under the thirty-eighth section of the title of the revised statutes relative to the court of chancery. (2 R. S.173.) Although the term person is used in the singular number in this section, yet, by referring to the eleventh section of the act concerning the revised states, (2 R. S. 778,) it will be found that the word thus used in the singular, may be construed to include a plurality of persons, unless there is something in the subject or context repugnant to such a construction. I have no doubt, therefore, that two or more persons holding the property of the judgment debtor under different conveyances, or becoming indebted to him at different times, or for distinct sums, may be joined with him as defendants in a creditor’s bill, under this provision of the revised statutes. And if, for any cause, it becomes impossible to make the debtor himself a party, to a bill to obtain satisfaction of the judgment out of his estate in the hands of third persons, and the creditor has a right to institute a suit in chancery for that purpose, I can see no good reasons for permitting him to join several persons in the same suit, in the former case, which are not equally applicable to the latter. Where the object of a suit is single, but different persons have, or claim, separate interests in distinct or independent questions, all connected with and arising out of the single object of the suit, the complainant may bring such different persons before the court, as defendants; so that the vvhole object of the bill may be obtained in one suit, and to prevent further unnecessary and useless litigation. And if the sole object of the present bill was to reach the property, in the hands of these several defendants, which ought to be applied in satisfaction of the balance due on the complainants’ judgment, and to have it thus applied, I should find no difficulty in sustaining the decision of the vice-chancellor in overruling these demurrers.

But it is also objected, on the part of the appellants, that the complainants in this same bill are seeking to recover against the defendant W. Hoyt a distinct and independent claim ; for damage done to the real estate of E. Hoyt, of which they were the purchasers at the sheriff’s sale, between the time of such sale and the expiration of the time allowed by law for redemption, when they were entitled to the deed from the sheriff. These damages they do not seek to have applied in payment of the balance due them upon the judgment; but they claim the same in a distinct and independent right, as the purchasers of the land, upon which land such waste was committed in fraud of their rights as purchasers at the sheriff’s sale. And if such waste was committed after the sale, either by W. Hoyt, or his father, as alleged in the bill, there 'is no doubt as to the right of the complainants to claim the proceeds of such waste, in the hands of W. Hoyt, who has received the same without consideration, or with full knowledge of the complainants’ equitable right to such proceeds; to recompense them for the injury which they have sustained as purchasers.. The avails of such waste cannot properly be-applied in satisfaction of the balance due on the judgment; for the complainants’ right to the proceeds of the waste would have been the same, if the balance of the judgment had been fully paid by the debtor. It will be seen, therefore, that the claim set up in this part of the bill is for a distinct and independent cause of action, against W. Hoyt, in which the defendant RoeliffParsel is in no way implicated. And it is entirely disconnected with the complainants’ claim to have the balance of their judgment satisfied out of the property of E. Hoyt, in the hands of the respective defendants. This, then, is not a bill for a single object, where the separate interests of different defendants are connected with, or properly arise out of such single object of the suit. It is a bill in which the complainants set up two distinct and independent claims, or grounds of action; as to one of which claims there is no foundation or pretence for making the defendant Parsel a party to the litigation. But as to the other claim the defendants were properly made parties, although their interests, even as to that claim, were separate and distinct. The bill, in this respect, is clearly multifarious.

The form and effect of a demurrer to a bill in chancery for multifariousness, is substantially the same as a demurrer to a declaration at law for a misjoinder of actions, or of different causes of action, which cannot be properly litigated in the same suit. The demurrer, in either case, goes to the whole bill, or declaration. (See Mansell’s Law of Dem. 11. Gibbs v. Clagget, 2 Gill. & John. Rep. 29. Johnson v. Anthony, 2 Molloy’s Rep. 373.) And where a joint claim, against two defendants, is improperly joined in the same bill with a separate claim against one of the defendants only, either or both of the defendants may demur for multifariousness. (Ward v. The Duke of Northumberland and the Earl of Beverly, 2 Anst Rep. 469.)

The decretal order of the vice chancellor is erroneous, and must be reversed with costs. The demurrers must be allowed, and the complainants’ bill dismissed.


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    Merrill vs. Townsend & Bonney.
    Exemption from imprisonment on execution, under the act to abolish impris* onment for debt and to punish fraudulent debtors, extends to a decree against the complainant for costs on the dismissal of a creditor’s bill, filed for the purpose of obtaining satisfaction of a judgment founded on contract.
    Where the supreme court has given a judicial construction to a provision of a recent statute, that decision, if not clearly wrong, should be followed by the court of chancery; so that different rules of construction may not prevail in the courts of law and equity in relation to the same statutory provisions.
    In the court of chancery, the registers and clerks are not authorized to issue any process in blank, to be filled up by the solicitor; except process to appear and answer to bills, and process to compel the attendance of witnesses.
    Process should be tested on the day on which it is sealed by the register or clerk in chancery, and if not served before the return day an alias should be procured, on the filing of the same with the sheriff’s return ; or new process may be obtained, upon the affidavit of the solicitor that the former process has not been used, or executed.
    The solicitor has no authority to altel the test of an execution in the court of chancery.
    This was an appeal from an order of the vice chancellor of the seventh circuit. The complainant was a judgment creditor of the defendant Townsend, and filed his bill in this cause to reach property which could not be levied on by execution ; which property the complainant alleged was fraudulently conveyed to Bonney, the other defendant. The bill having been dismissed, with costs, the defendants sued out an execution against the body of the complainant, to recover such costs, and caused him to be imprisoned'thereon. The vice chancellor decided that it was a case coming within the provisions of the first section of the act to abolish imprisonment for debt, and to punish fraudulent debtors; (Laws of 1831, p. 396.) And he set aside the execution, with costs. There was also an alleged irregularity, in the altering of the test of the execution after it was issued by the clerk.

      H. Welles, for the appellants.

      R. N. MorHson, for the respondent
   The Chancellor.

This suit was instituted for the recovery of money due upon a judgment founded on contract; and if there had been a decree against the-defendants, er either of them, for the payment of any part of the complainant’s debt or costs, the defendants could not have been arrested or imprisoned upon an execution founded on such decree. Such a case would be both within the letter and the spirit of the first section of the act to abolish imprisonment for debt, and would not come within either of the exceptions contained in the second section of the act. Whether the legislature intended to exempt the plaintiffs or complainants, in such suits as are mentioned in the first section of the act, from imprisonment for the non-payment of the costs, if the decision was against them, is a question which admits of some doubt. But in the case of The People ex relat. Richardson v. Onondaga C. P. (9 Wendell, 430,) the supreme court decided that exemption from imprisonment extended to a judgment for costs in a suit founded on a con tract. And 1 think the vice chancellor was right in following that decision in the present ease; so that different constructions might not be given by the courts of law and equity to the same statutory provision.

There was also a technical irregularity in this case, in the alteration of the execution after it was issued by the clerk. In this court no process issues in blank, to be filled up by the solicitor, except process to appear and answer to bills, and process to compel the attendance of witnesses. All other process must be issued under the immediate direction of the register, assistant register or clerk, in whose office the decree or order authorizing the issuing of such process is entered; who is bound to see that no process passes the seal of his office, unless the same is duly authorized. Injunctions, executions and other process issued by the register or clerk should be tested on the day on which the same is sealed by him; and a memorandum of the issuing thereof should be entered |n his minutes of causes. The solicitor, in the present case, instead of altering the teste of the execution, should have filled ap the return day, which the clerk had left in blank, with such a day, either in vacation or term, as would have given the officer to whom the execution was delivered ample time to serve the same. And if the process could not be executed before the return day, an alias would have been issued by the clerk, on filing the original process with the sheriff’s return ; or a new execution might issue of course, without such return, upon the affidavit of the solicitor that the former one had never been served or executed.

The order of the vice chancellor is affirmed, with costs.

       See also Exparte Beatty, (12 Wendell,229, S. P.)


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    Hoffman vs. Tredwell and others.
    Where a party is relieved against an order or decree regularly obtained against him by the adverse party, upon certain terms or conditions specified by the chancellor in his decision, it is the duty of the party applying for such relief to draw up and enter the order granting the same, without any unreasonable delay; and if he neglects to do so, the adverse party, upon filing an affidavit showing such neglect, and that the terms upon which the court directed such relief to be granted have not been complied with, may proceed to carry into effect the original order or decree, without entering an order upon the application to be relieved against it.
    When a party obtains an order for relief from a regular proceeding against him in the suit, upon certain terms to be performed by him as a condition of such relief, he must seek the solicitor of the adverse party, and perform, or offer to comply with such terms, or he will lose the benefit of the order.
    On the second of July, 1834, the complainant’s bill in this cause was regularly dismissed, as to four of the defendants, with costs, for want of prosecution. An application was afterwards made to vacate the order dismissing the bill, upon excuse shown for the delay of the complainant. And on the sixth of August the chancellor directed the order dismissing the bill to be vacated, on condition-that the complainant within twenty days paid to the solicitor of these defendants the costs of the order to dismiss and the costs on the subsequent application; and within four months procured the cause to be in readiness for hearing as to certain defendants who had not then appeared. But if these conditions were not complied with, then the order dismissing the bill was to Ire and remain in full force. The defendants’ solicitor procured the costs, directed to be paid, to be taxed, and called upon the complainant’s solicitor for payment; but was informed by him that he had a copy of the order, and that the payment of the costs was not made a condition of the order vacating the former order of dismissal. The costs were not paid; and the defendants’ solicitor afterwards ascertained that the complainant’s solicitor had neglected to draw up and enter the order of the sixth of August. The solicitor for the four defendants, as to ■whom the bill had been dismissed, thereupon drew up the order of the sixth of August on the 20th of November, and procured it to be entered as of the former date; and on an affidavit that the terms of that order had not been complied with, lie obtained an enrolment of the original order, of the second of July, dismissing the bill as to these four defendants, with costs. The complainants thereupon applied to the chancellor to vacate the enrolment, and for leave to proceed in the cause, aipon such terms as might be equitable and just
    J". Rhoades, for the complainant.

      J. V. L. Pruyn, for the defendants.
   The Chancellor.

In this case the defendants who appeared by Mr. Silliman, had obtained a regular decree for the dismissal of the bill, as to them, for want of prosecution. And by the decision of the court that decree was to stand, unless the complainant thought proper to vacate the same, by complying with the terms imposed upon her by the court, on the sixth of August. One of those terms was, that she should pay certain costs within twenty days. And if the order was not drawn up and entered as of that date, it should, if subsequently entered, have directed the costs to be paid within 20 days after the sixth of August. It was the business of the complainant to cause the order to be drawn up and entered ; and to seek the solicitor of the adverse party, and offer to pay the costs, as soon as they could be made out and ascertained, by taxation or otherwise, if she wished to have the benefit of her application. It would, therefore, have been sufficient for the solicitor of the defendants, in order to entitle himself to proceed upon the order of dismissal, to have made an affidavit, stating the terms upon which it was to have been vacated by the decision of the court, and that the complainant had neglected to enter any order upon such decision, or to comply with the terms imposed. The complainant has sustained no injury by the entry of the order as of the day when it should have been entered by her solicitor ; and the proceedings of the solicitor for the defendants are regular.

But as the complainant is alleged to be poor, I do not think it, proper to subject" her to the unnecessary expense of a new suit, for the mistake of her solicitor. If the costs directed to be paid by the order of the 6th of August, and which have already been taxed and demanded of the solicitor, are paid within twenty days from the time of pronouncing this decision, and if all subsequent costs, including the costs of resisting this application, are paid within ten days after service of a taxed bill thereof on her, or her solicitor, the order dismissing the hill, and the enrolment of that order, are to be vacated- and set aside; and the suit is to proceed against the surviving defendants. But if these terms are not complied with by the complainant, the suit may be revived as to the personal representative of John Tredwell, upon a proper application for that purpose; and an execution may be taken out for the cqsts upon the decree or order for dismissal. The complainant, in that case, is also to pay to the solicitor of the three surviving defendants as to whom the bill was dismissed, the costs of opposing the present application.


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    Seebor vs. Hess and others.
    Although it is irregular to serve an injunction upon a party, without serving him also with tho subpoena to appear and answer the bill, it is too late to give notice of an application to dissolve the injunction, on that ground, after a subpoena has been served on him.
    The neglect of the complainant to serve the subpoena and injunction on some of tho defendants named in the bill, is not a ground for dissolving the injunction, as to the defendants, on whom the service has been made.
    In an injunction cause, if there has been any negligence in serving the subpcena, or procuring the appearance of a part of the defendants, those who have appeared and answered may have the injunction dissolved on their answers alone.
    "Where a bill is filed against several joint plaintiffs in a suit at law, to stay the proceedings there, it will be sufficient to stay the proceedings, if the injunction is served on the attorney, and on any of such joint plaintiffs, although it is not served on all; but the subpoena must be served on each defendant, unless he elects to appear voluntarily.
    Copies of the bill, to be served upon parties who have not appeared in the cause, are not taxable; and if several defendants appear by one solicitor, although they appear at different times, only one copy of the bill is necessary to be served on such solicitor.
    Upon special motions and petitions, if the papers on which the application is made or opposed are unnecessarily prolix or voluminous, costs will be refused to tho party using such improper papers, although he otherwise might have been entitled to costs against the adverse party.
    The bill in this cause was filed against G. H. Hess and wife and twenty other defendants, and an injunction was issued thereon to stay the proceedings in an ejectment suit brought by all the defendants against the complainant. It appeared that a copy of the injunction was served on the defendant G. H. Hess, in November, 1884, and the subpoena was served upon him a short time afterwards. Some time after the service of the subpoena,'the defendants, upon an affidavit of G-. H. Hess, stating these facts, and also that he had been informed by some of the other defendants that the injunction and subpoena had not been served on them, gave notice of a motion to set aside the injunction for irregularity. The complainant’s solicitor, in opposition to this application, produced affidavits showing that he had caused the injunction, subpmna and copies of the bill to be served upon several others of the defendants, and that he was proceeding to make similar services upon the remaining defendants as fast as they could be found. A full copy of the bill, injunction and subpoena, was also annexed to these affidavits.

      L. C. Saxton, for the complainant.

      P. J. Waggoner, for the defendant G. H. Hess.
   The Chancellor.

There was a technical irregularity in serving the injunction without serving the defendant with a subpoena to appear and answer. (4 Paige's Rep. 439.) But it was too late to give notice of an application to dissolve the injunction on that ground, after the subpoena had been actually served on the same defendant. The neglect of the complainant to serve the injunction and subposua, immediately upon the other twenty defendants, living in different parts of the state, formed no ground for dissolving or setting aside the injunction. Those upon whom it is served may appear and put in their answers; and if there has been any negligence by the complainant, in serving the subpoena, or in procuring the appearance or answers of the other defendants, those who have appeared and answered will not be precluded from moving to dissolve the injunction upon their own answers alone. The service of a copy of the bill and of the injunction on each of these twenty defendants, was an unnecessary and useless expense, and is not taxable either as against the adverse party or as between solicitor and client. It was sufficient, in a case of this kind, where all the defendants were prosecuting a joint suit against the complainant, to serve a copy of the injunction upon any one of the defendants, and upon their attorney in the suit at law. The subpoena, however, must be served upon each defendant, unless some of them elect to appear voluntarily. The practice of making out separate copies of the bill for each defendant, and serving such copies with the subpoena, cannot be sanctioned. In ordinary cases, no copy of the bill to be served on the defendant is taxable, (until after he has appeared in the cause. And where several defendants appear by the same solictor, only one copy of the bill, to be served on such solictor, can be allowed on taxation, although the defendants appear at different times. The copy first served on the solicitor must answer for all of the defendants who appear by him.

The motion to dissolve or set aside the injunction must be denied. But as I cannot charge the defendants with the expense of all the useless mass of papers which have been read in opposition to this motion, the application is denied without costs. And it may now be considered as the settled practice of this court, in all cases of special motions and petitions hereafter to be made or presented, that if the affidavits or other papers upon which the application is founded, or those which are read in opposition thereto, are unnecessarily prolix or voluminous, that circumstance alone will be considered a sufficient reason for refusing a solicitor the costs to which he would otherwise have been entitled as against the adverse party, if such useless or improper papers had not been produced by him.


text:
    Lloyd vs. Brewster and others.
    A vice chancellor in the taxation of costs acts merely in his ministerial capacity as a taxing officer of the court; and an application to the chancellor to review his decision as such taxing officer under the 129th rule of this court, is not an appeal from an order of a vice chancellor, or from a proceeding in the nature of an order; it may therefore be made after the time allowed by law for bringing an appeal.
    The order of the chancellor, upon an application for relaxation of costs in a cause pending before a vice chancellor, may, when necessary, he transmitted to, and entered with the clerk of such vice chancellor.
    The last clause of the 130th rule does not give the taxing officer an absolute and uncontrollable discretion in the taxation of costs ; and if he comes to an erroneous conclusion as to the necessity or propriety of putting in separate answers, &c. his decision may be reviewed by the court, upon an application for a retaxation.
    Where an order for further time to answer, under the 125th rule, is obtained as a matter of necessity, and not for the accommodation or convenience of the defendant or his solicitor, the expense of obtaining such order is taxable, as against the adverse party.
    If different defendants appear by the same solicitor, and there are no conflicting rights or disputed facts between them to render separate answers necessary, the solicitor will only be allowed on taxation for one answer.
    Where the answers of several defendants refer to the same schedules, only one engrossment of the schedule is necessary, if the defendants appear by the same solicitor; and only one copy for the defendant’s solicitor, and one copy for the complainant, should be allowed on taxation.
    If the party applying for a retaxation of costs succeeds only as to part of the objections contained in the papers on which his appliction is founded, neither party will be entitled to costs on the motion.
    This was an application for the retaxation of the defendants’ costs, which had been taxed by the vice chancellor before whom the suit was brought. The notice of the motion for a relaxation was not given within fifteen days after the taxation took place. But the complainant’s solicitor, within that time, gave a written notice that his client did not intend to submit to the decision of the taxing officer, and requested a copy of the bill, as taxed, for the purpose of moving for a relaxation thereof; which copy was subsequently received. All of the defendants appeared by the same solicitor, and each put in a separate answer, with a long schedule annexed to the same ; which answers were all put in at the same time. It appeared, however, that one of the defendants was in New-Orleans at the time of the service of the bill, and that his separate answer was made out and forwarded to him at that place; but that be returned to this state before the answer reached its place of destination. The vice chancellor allowed for the separate answers, and for engrossing and copies of the schedule annexed to each, and also for the expenses of the order for time to answer; as to which items the complainant appealed from the taxation.

      J. Rhoades, for the complainant.

      M. T. Reynolds, for the defendants.
   The Chancellor.

The objection is not well taken that the application for a relaxation of costs which have been taxed by a vice chancellor, upon hearing of the parties, under the last clause of the 129th rule, is an appeal, which must be made within fifteen days after the taxation. The appeals, which by statute are required to be brought within fifteen days, are appeals from interlocutory and other orders made by a vice chancellor. (2 R. S. 178, § 59.) But an application for the retaxation of a bill of costs is not an appeal from an order, or a proceeding in the nature of an order. The vice chancellor, in the taxation of costs, is not to be considered as holding the court of chancery, in his character of a judge thereof; but he is acting merely in his ministerial capacity, as a taxing officer of the court. And the -application directly to the chancellor for a retaxation, in the cases provided for in the last clause of the 129th rule, was given to prevent the manifest impropriety of calling upon one vice chancellor to review a decision of another, which decision had been made upon a hearing of the parties, or to reverse his own decision when thus deliberately made. As this was a mere question of practice not provided for by any statute, it was, in the establishment of the rules of January, 1850, supposed to come within the powers conferred upon the chancellor, by the forty-sixth section of the title of the revised statutes, relative to the court of chancery. (2 R. S. 175.) And the order upon such application for a retaxalion, when necessary, may be transmitted to, and entered with the clerk of the vice chancellor before whom the cause is pending. The notice of this motion was given immediately after the receipt of a copy of the bill as taxed. The defendants cannot, therefore, complain of any unreasonable delay. The 130th role is strictly in accordance with the provisions of the fifth section of the title of the revised statutes relative to the taxation of costs. (2 R. S. 652.) And it was adopted in conformity to a positive direction of the legislature, contained in a previous part of the revised statutes; by which it is made the duty of the chancellor to revise the rules of this court periodically, with a view, among other things, to improve the practice, by the diminution of unnecessary costs. The position assumed by the defendants’ counsel, that the last clause of the rule gives to the taxing officer an absolute and' uncontrollable discretion, is therefore wholly untenable. And if the taxing officer comes to an erroneous conclusion, as to-the necessity or propriety of putting in separate answers, &c. his decision may be reviewed by the court, upon an application for a retaxation.

The rules of the court have limited the time for answering, to forty days, in ordinary cases. But as it was foreseen that in many cases a longer time would necessarily be required, especially where the defendant was absent from the state at the time of the service of the bill upon bis solicitor, the 125th rule allows one order for further time, as a matter of right, upon sufficient cause shown to a vice chancellor or injunction master. In such cases, if there is a necessity for further time to answer, and the same is not granted for the mere accommodation or convenience of the defendant, or his solicitor, the necessary expense of obtaining the chamber order may be taxed against the adverse party. In this case, the absence of one of the defendants, in Néw-Orleans, rendered an extension of the time for putting in his answer a matter of necessity. Those charges were therefore properly allowed, on taxation.

For the same reason, it was proper to prepare a separate answer and schedule to be transmitted to Brown, and verefiéd by his oath, at that place. And his subsequent return, before the answer reached him, afforded no sufficient reason for changing the answers which had already been prepared. His separate answer must therefore be allowed. The other two defendants, however, ought to have put in a joint and several answer; as there was no disputed fact between them, nor any conflict of rights which could make it necessary or proper for them to put in separate answers. The schedules annexed to the answers appear to have been proper, considering the nature of the allegations and interrogatories contained in the complainant’s bill. And as the answer of Brown was drawn upon the supposition that it was to be sent to New-Oiieans and sworn to there, it could not be made to refer to the schedules annexed to the answer of the defendants, which was to be sworn to in New-Yovk, and which could not have been seen by Brown. This made it necessary to have a separate engrossment of the schedules lo be annexed to and filed with Brown’s answer. Two engrossments of the schedules are therefore to be allowed. But only one copy of the schedules was necessary for the complainant’s solicitor. To the copy of the other answers served, it would have been sufficient that a memorandum should have been added, stating that the schedules annexed to the sworn answer on file were copies of those annexed to the first answer served. And one copy was all that could have been necessary for the solicitor of the three defendants to retain. All the unnecessary coplas of the schedules should therefore have been disallowed by the taxing officer, in conformity to the directions of the statute, and the rule of the court on this subject.

The costs must be retaxed upon these principles, upon the application of either party to the vice chancellor. And the amount which has been overpaid must be refunded, agreeably to the stipulation of the defendant’s solicitor. As the complainant succeeds in his application, only in part, neither party is to have costs on the motion for a re taxation.

         See Nicholson v, Falkiner, 1 Mott. Rep. 555, as to costs of separate answers of trustees.


text:
    Cuddeback vs. Kent and others.
    The sureties of a guardian may be joined with him as defendants in a bill In chancery, charging him with a breach of trust, and with having wasted the property entrusted to his care, and praying for an account and satisfaction of what may be found due; and it is not necessary that a decree should have been first .obtained against the guardian alone, before proceeding against him and his sureties jointly.
    The act of 1815, relative to the sale of infant’s estates, does not confine the remedy of the infant to a common law action on the bond, against the guardian or his sureties, for a breach of the trust.
    It is no defence to a suit upon the bond of a guardian, that such suit has been instituted without an order of the court in which the bond was taken, directing it to be put in suit; but where such bond has been taken in a proceeding before the chancellor, he may by order restrain the proceedings thereon, if it has been prosecuted improperly, and without authority.
    The com t of chancery has original jurisdiction in the case of an infant against the guardian and his sureties, where the condition of the bond has been broken, to decree an account against the guardian, and to make a decree over against the sureties, to the extent of their liability, if the amount found due to the infant cannot be collected from such guardian.
    Trumbull Kent, one of the defendants in this suit, was appointed special guardian, under the act of March, 1815, for the sale of the real estate of the complainant, who was then an infant; and upon that appointment, the defendants Gr. Price and A. M, Kent became sureties for the faithful performance of his trust as such guardian. The bill in this cause, after stating the appointment of T. Kent as guardian, and the execution of the bond by himself, and by the other defendants as his sureties, as required by the statute, stated that the real estate of the complainant was sold by the guardian pursuant to the order of the court, and that the proceeds of such sale were received by the guardian, who had squandered the same and had become insolvent. The bill also set forth various acts of misconduct on the part of the guardian, and of disobedience to the orders of the court as to the investment of the proceeds of the sale; and it concluded with a prayer for an account against the guadian, and that he and his sureties might be decreed to pay what should be found due to the complainant upon the taking of such account. G. Price, one of the sureties, demurred to the bill for want of equity ; and also for multifariousness, in joining the sureties with the guardian in the suit for an account. The vice chancellor overruled the demurrer: from which decision the defendant Price appealed to the chancellor.

      Jl. Taber, for the appellant.
    1. The bill contains no ground for equitable relief against Price.

      2. The other defendants and each of them are improper parties to be joined in the bill with him.
    3. A guardian and his sureties cannot be joined in a bill for an account. (Session Laws of 1815, p. 103, § 2. 1 Edw. Rep. 8. 2 R. S. 194, § 173.)
    4. The bill contains no averments against Price which can sustain a bill against him for an account.
    5. There is no averment in the bill against him, except that he became bail; no charge that he had any knowledge of the manner in which the trustship was performed, and no charge of combining and confederating.
    6. The bill is multifarious, and by mingling defendants and causes together in one bill, the pleadings, orders and proceedings will be intricate and prolix; and the defendant Price will be put to unreasonable and unnecessary charges in taking copies thereof. (Edw. on Parlies, 10, 14, 228, 229, 230.) No person can be called into court to contest a future legal right. (1 Eden, 520. 6 John. Ch. Rep. 242.)
    7. The complainant has an adequate remedy at law against Price, upon his bond.
    8. By the act of 24th March, 1815, (Sess. Laws of 1815, p. 103, § 2,) the complainant was bound to take the directions of the chancellor before proceeding in any manner against Price. (People v. Dunlap, 13 John. Rep. 437.)

      J. Edwards, for the respondent.
    1. It appears from the bill that Grant Price is surety for Trumbull Kent as guardian of the complainant, and therefore interested in any suit which determines Trumbull’s liability and the extent thereof; and he should therefore, or may at least, be made a party to this suit. Every person at all interested in the event of the suit,, or necessary to the relief sought, must be a party; in order to enable the court to settle the rights of all, and to make a complete and definitive decree. (Baily v. Inglee et al., 2 Paige’s Ch. R. 278. Colt v. Laonier, 9 Cowen’s Rep. 320. Hickock v. Scribner, 3 John. Cas. 318, 1 John. Ch. Rep. 349. 2 Bibb, 184. Estill’s heirs v. Green & Clay, 2 Kentucky Rep. 501. Step v. Olkire, Id. 260. Wyatt’s Penn. Rep. 299. Mitf. (by Jeremy,) 144. Barton, 31.)

      2. The sureties of a guardian may be joined with him in a bill by the ward for an account. (Hutchcrafts v. Shrout’s heirs, 1 Monro’s Rep. 207. Moore et al. v. Waller’s heirs, 1 Marshall’s Kent. Rep. 488. Kirby v. Turner et al., Hopk. Ch. R. 309.) In the case of Moore et al. v. Waller’s heirs, the court use the following language : “ The act giving an action at law upon the bond of executors or administrators is cumulative, and does not divest the chancellor of his jurisdiction and in page 490 they say, “ Though at law a previous suit may be necessary to ascertain the extent of the executor’s liability, before the surety can be resorted to; in chancery no such procedure is necessary. The chancellor will adapt the decree to the nature of the case, and adjust the whole transaction in one suit.” In Wiser v. Blackly et al., (1 John. Ch. Rep. 437,) the suit was against the guardian and the executors of the surety ; and the question was whether the devisee of the surety should be made a party, as the real estate might be liable for the claim.
    3. The provision of the 173d section of chapter 1st, part 3d,' of the revised statutes, (2 R. S. 194,) is cumulative, and'does not take away the common law right of proceeding by bill. (Moore et al. v. Waller’s heirs, 1 Marsh. Kent. Rep. 488.)
    4. After an infant becomes of age, he must proceed by bill, and not by petition against his gurdian for an account. (1 Edw. Rep. 8.) It is alleged in the bill that the complainant had become of age.
    5. It is not necessary in the bill to allege confederacy between the defendants, or between them and others. This is a matter of form, and may be dispensed with. Neither is it necessary to charge the defendants with collusion or fraud; which are substantive averments, and need only be alleged where a bill cannot be sustained without proof of them. No proof of either, against Price, is necessary to maintain the bill against him.
    6. Where the bill contains sufficient to entitle it to the equitable consideration of the court of chancery, notwithstanding some exceptionable features, a demurrer thereto will be disallowed. (Brockway v. Copp, 3 Paige's Ch. Rep. 539.)
    7. It appears from the bill, that Trumbull Kent, the guardian, has forfeited and is unable to fulfil the condition of the bond in which Grant Price is surety for him as guardian; which shews a direct interest in Price in the present suit.
    8. The bail cannot complain because.they are made parties to this suit. If they should be made liable to any costs in consequence, it would arise from their principal’s mismanagement ; and in that case they would have complete remedy against their principal.
    9. It is alleged in the bill that Kent received the proceeds of the sale of the complainant’s real estate and squandered it, and is himself wholly insolvent; which renders him liable without a demand by the complainant for an account. '
    10. Chancery has the control of a guardian appointed by the surrogate, under the law of 1813, as much as if he had been appointed by this court; (Matter of Andrews, 1 John. Ch. R. 99;) and of a testamentary guardian as much as of a guardian in socage.
    11. Though an infant cannot bring a bill against a guardian, but must proceed by petition, a third person may. (Eyre v. Countess of Shaftsbury, 2 P. Wms 119.)
   The Chancellor.

The last clause of the second section of the act of March, Í815, in addition to the act concerning infants, which authorizes the prosecution of the guardian’s bond in any court having cognizance thereof, by direction of the chancellor, was not, as is supposed by the counsel for the appellant, intended to confine the remedy of the injured party to an action on the bond in the common law courts. Neither can it be set up as a defence to a suit upon the bond, either by demurrer or otherwise, that the suit has been instituted without an express order of the chancellor directing the bond to be prosecuted. The chancellor or vice chancellor, by whom the appointment is made, has an unquestionable jurisdiction over the subject, and may therefore restrain the prosecution of a suit upon the bond, either in the name of the infant during his minority, or by the infant himself after he becomes of age. But if such a suit is improperly instituted, the remedy of the guardian, or his sureties, is by an application to the chancellor or vice chancellor to stay the prosecution of the suit. And this may be done even after there lias been an express order for the prosecution of the bond in a court of law. (Walker v. Wild, 1 Mad. Rep. 528.) Neither is it necessary, before a suit can be instituted upon the bond, that the guardian should have been proceeded against, and the amount due the ward ascertained by an order or decree of the court by whom the appointment was made. Although there is not, as I can find, any express adjudication on this point in our own courts, there are several to be found in the courts of some of our sister states. In the case of The Justices of Franklin County v. Willis, (3 Yerger’s Rep. 461,) a suit was instituted upon the bond in a common law court, and several breaches' of the bond were assigned. The objection was taken by demurrer, that the guardian should have been compelled to account, in the first instance, and the amount thus ascertained with which he was chargeable, before a suit could be brought upon the bond, so as to reach the surety. But the supreme court of Tennessee decided that the party might elect to sue upon the bond in the first instance; and accordingly judgment was given for the plaintiffs on the demurrer. In the case of Taliaferro’s Ex’rs v. Thornton and wife, (6 Call’s R. 21,) the court of appeals of Virginia decided that a legatee might bring a suit in equity, upon the administration bond, in the first instance ; because the decree could be made to operate against the principal, in the first place, and an account of the assets could be taken at once. In the case of Moore v. Wallers heirs, (1 A. K. Marsh. Rep. 489,) which was upon a bill filed against the executor and his surety in the administration bond, the court of appeals in Kentucky decided that the action given by the statute, upon the administration bond, in -the name of the justices of the county court, was only a cumulative remedy, and did not divest the jurisdiction of the ■court of chancery in such a case. And that a bill might be filed against the executor and his sureties, in the first instance, without the necessity of first resorting to a suit against the principal, to ascertain the extent of his liability. • A similar decision was made in the case of Carroll v. Connet, (2 J. J. Marsh. Rep. 198,) where a bill in chancery was filed against the sureties alone, after the death of the administratrix without property. And in the case of Hutchcraft & Wilson v. Shrout’s heirs, (1 Monro’s Rep. 206,) where, upon a .bill filed against a guardian and his sureties, it was insisted in behalf of the sureties that they were only liable in an action at law upon the bond, the court overruled the objection. Judge Mills, who delivered the opinion of the court in the last case, says: ‘e Equity has always entertained jurisdiction between guardian and ward, and will compel the former to account with the latter for the estate in his hands, if that sum is secured by bond and surety, we have no doubt that •the jurisdiction as to the guardian will draw with it the surety. It is more beneficial to the surety ,that it should be so. He then has the opportunity of seeing that the account is correctly settled. If he is no party to the suit in chancery, and can only be sued at law, after the account is settled, one of two inconveniences must follow ; either he must, when sued at law, be bound by the decree to which he was not a party, and when the account might be settled erroneously, or not having been a party, he would not be bound at all, and could unravel the accounts, in the action at law, and compel the ward to retravel over the whole settlement. It is therefore better that he should be made a party at once, when he can see to his interest; and when the chancellor thus has possession of the matter, to avoid circuity of action or multiplicity of suits, he will decree the amount to be paid at once,” It is impossible to add to the force of this reasoning, as applicable to the present case. From the complainant’s bill, it appears that there have been several direct violations of the orders of the court, in relation to the investment of the proceeds of the sale, by which the condition of the bond has been broken; and that the guardian has squandered the proceeds of the sale and become insolvent. The prosecution of a suit against him alone, in the first instance, would therefore be worse than useless as respects the sureties, and would subject them to the expense of a double litigation. And it would also be a violation of the settled principle of this court, that a useless multiplication of suits is neither to be encouraged nor allowed. Upon the final heaving of the cause, if it shall be found that the guardian has faithfully discharged the trust committed to him, according to the condition of the- bond, the bill may be dismissed as to all the defendants, with costs. If, on the other hand, there has been a breach of trust, the court can make the appropriate decree for the payment by the guardian of what may be found due; with a decree over against the sureties, to the extent of their liability, if the whole cannot be collected of the principal debtor.

The decree of the vice chancellor is affirmed, with costs; and the proceedings are to be remitted to him.