Carow v. Mowatt

1 Edw. Ch. 9

• Court: New York Court of Chancery
• Decided: May 16, 1831
• Status: Published

Opinion

The Vice-Chancellor :—I

think this motion has been r*o'htly opposed by the complainant. Martha Mowatt ought n°t to be released from any liability she may have incurred as. the administratrix of her late husband; and the complainant is en^í¡e¿ to call her to an account. I have looked into some authorities to see how far the court can substitute one defendant for another in the summary way required by this-petition. The case of Foster v. Deacon, 6 Madd. C. R. 58,* is an authority directly in point. The petitioner in that case was the assignee* for a valuable consideration, of the unascertained interest of the defendant, Deacon, and of his wife; and he prayed to be admitted to take part in the suit as a party defendant. The court permitted the pettiioner to make himself a party by a supplemental bill.

In the case before the court, it appears, that the letters <¿f administration which wore granted to Martha Mowatt, have been revoked; and that Mr. Miller, the petitioner, has now the right in himself. His course, therefore, is by á supplemental bill; but I think that the complainant should have the preference of filing such a bill. I shall, therefore, order, that the complainant have leave to do so, and thereby make Mr. Miller a party defendant *, but if the complainant shall not file such bill within twenty days* then the petitioner may file it, praying to be admitted a party defendant to the suit. After this is done, some order can be made as to the assets in Martha Mowatt’s hands: for the purpose of having them brought into court or transferred to the public administrator. But I shall make no order in this respect^ until the supplemental bill is filed.