Fellows v. Fellows

4 Cow. 682

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: June 15, 1825
• Status: Published

Opinion

Woodworth, J.

It is material to ascertain what facts in the bill are admitted by the demurrer. Whatever is not covered by the answer, is necessarily admitted. The denial is, that the appellant did not combine with the other defendants, to defraud or delay the respondents. Excluding this charge, as not admitted, the following facts alleged in the bill are conceded : that all the defendants in the Court below were acquainted with, and had full knowledge of the agreement made for the sale of the farm between Ezra Fellows and John Fellows, and the proportion of the purchase money that Ezra Fellows was to receive ; that they had knowledge of the filing of the bill against John Fellows, and the service of the injunction restraining him •from selling or disposing of the notes in question. The oil! also charges, that John Fellows, under the apprehension that a recovery would be had against him, came to a fraudulent determination, and entered into a fraudulent and secret combination with the defendants, so to manage and conceal the property, as to delay and defraud the respondents ; and that, in fulfilment of this fraudulent design, without any valuable consideration, he transferred two of the notes to bis son William, and-two others to his son Thomas ; and also conveyed 40 acres of land in Malta to his ' son-in-law Roswell Day, and four acres to his son Thomas

What is admitted by the demurrer

Now, on looking at the answer, it will be seen that the denial extends to this merely, that the appellant did not combine with the other defendants below to defraud ,• that is, according to the legal and grammatical meaning of the term, they did not join together or agree to act in concert, for the purpose of consummating this fraud. Admitting that there was no formal agreement that they should all .unite in the act, yet it stands confessed that all had intimate knowledge of the whole transaction. They knew the justice of the respondents’ claim against John Fellows, and, knowing this, William Fellows, Thomas Fellows, and Roswell Day consented to become actors, and severally took transfers of separate parcels of John Fellows’ properly, which transfers are admitted to have been made fraudulently, and without consideration.

Granting that there was no express agreement between the parties to defraud, the demerit, in a moral point of view, was not the less that they acted individually, and not in concert. Whether, in a legal point of view, the objection that several distinct matters are alleged, in which the appellant is not interested, can prevail, I will briefly examine.

Whether the objection. of several matters, &c. can avail.

The general rule is, that a bill filed for matters of distinct natures, against several defendants, is demurrable; otherwise, where there is one connected interest among them, centering in the point in issue.

The general rule will not be questioned, that where a bill is tiled concerning things of distinct natures, against several persons, it is demurrable; but unconnected parties may join in a suit, when there is one connected interest among them all, centering in the point in issue in the cause. (2 Madd. 234. 2 Anstr. 469, 477.)

In the present case, the object is to reach the property of John Fellows, in the hands of the appellant and the other defendants. This property was fraudulently parcelled out, and conveyed to three individuals. But for the fraudulent acts of the appellant, and the other defendants, the respondents might have obtained the fruits of their decree against John Fellows. The claim against all is of the same nature. The fraud alleged against each one of the defendants is the same. The question to be decided is, in every respect the same. The transfer being fraudulent, the property was not changed by being put into the hands of the defendants. The respondents seek the property of John Fellows, which the defendants hold without title. They are, therefore, all necessarily concerned in the thing to be recovered, although they set up distinct interests to sepa» rate parcels.

The case comes within the class of cases relative to a connected interest, &c. and the defendants may be joined.

I am clearly of opinion, that, this is-not a. case within the. rule relied on by the- appellant; but must be considered- as falling within that class of cases where there is a common interest among all, centering in the point in issue in the cause. Lord Redesdale, in Whaley v. Dawson, (2 Sch. & Lefr. 370,) observes, that in the English cases, where demurrrers, because the plaintiff demanded in his bill matters of distinct natures against several defendants not connected in interest, have been overruled, there has been a general right in the plaintiff covering the whole case, although the rights of the defendants may have been distinct. In such cases, the Court- proceeds on the ground of preventing multiplicity of suits, where one general right is claimed, by the plaintiff against all the defendants. A demurrer lies-where the subjects of the suit are,, in themselves, distinct. Here-the subject is the property of John Fellows, in the hands- of the defendants. The case does not afford ground for a demurrer within the authorities cited.

It is also objected that the respondents have connected in the bill, claims in their own right, and in their right as. administrators.

Respondents have not. connected matters in their own-right, with matters en autre droit.

An administrator, who buys land on a judgment of his intestate, must account for it to his cestuy que trust. Power of chancery to reach debtors’ property.

I do not so understand the bill. The whole of the proceedings were in their right as administrators. The purchase by the respondents at the sheriff’s sale, was in the character of administrators. They were agents and trustees, and could not-divest themselves of the trust. The cestuis que trust were entitled to take the land at their election ; and the-respondents, having purchased in this manner, may, in their representative capacity, call in the aid of the Court to perfect their title. (5 John. Ch. Rep. 388. I Madd. Ch; 91. 5 Ves. 682.)

Tlie power of the Court of Chancery to assist a judgment and execution creditor to discover and reach the property of his debtor; in whosesoever hands it has-been placed, I have considered as well settled, since the case of Hadden v. Spader et al. (20 John. Rep. 554.) There can be no well found» ed objection .on this ground. 1 consider- this case much stronger ; for here the appellant does not stand as a mere bailee, but as having no colorable ground of claim to the notes or the avails of them.

On every ground upon which this cause can be viewed, I am of opinion that the decree of his Honor the Chancellor be affirmed.

Sutherland, J.

The object of the bill, is to enable the respondents to reach the property of John Fellows, (against whom they have a decree,) fraudulently transferred by him to the other defendants, and thus put beyond the reach of the execution, of the respondents. The object is a legitimate one; and to the accomplishment of which, a Court of Equity will readily lend its aid. The power and authority of the Court of Chancery, to grant the aid and relief asked for, is fully established by the case of Hadden v. Spader, (20 John. Rep. 554,) decided by this Court. If the allegations of the bill be true, here is a most iniquitous attempt on the part of a debtor, to put his creditor at defiance, and defraud him of his just debt, by a voluntary and fraudulent distribution of his property among his children. That the respondents are entitled to relief, is clear; and the only question is, whether they must seek it by separate suits against each of the individuals implicated in the transaction, or whether they are at liberty to bring them all into Court in one suit.

Object of the bill.

Power of relief Praye.^, for bill

The point,

It is a favorite object with a Court of Equity, to prevent multiplicity of suits. For this purpose it is a general rule, in Chancery, that all persons materially interested must be made parties. Creditors are permitted to unite in calling on the representatives of a deceased debtor, for an account of the assets of the estate; or one or more of them may prosecute the suit, in behalf and for the benefit of the whole. The forms of proceeding in Chancery, and the power of the Court to mould its decrees, so as to suit the various equities of the case, as established by the proof, enable it advantageously to settle, and adjust in a single suit, rights and interests which, according to the rules of pleading in the Courts of common law, would necessarily result in various issues, incapable of being tried in a single cause, and disposed of by a single judgment.

Preventing ^ls'Pjf ay tlvori.te object of equity.

Hence all in-be made parties,

may j^1 or fortbe

But equity will not permit several plaintiffs, by one bill, to demand several distinct matters ; nor one plaintiff to demand several matters of different natures against several defendants.

Otherwise, if they have a common interest, centering in the point in issue; or where one general right is claimed by the bill.

Illustrations of these propositions

But notwithstanding this disposition of a Court of Equity to prevent the multiplication of suits, it 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 different natures against several defendants. And the reason of this rule is said to be, that such a proceeding would teno to load each defendant with an unnecessary burthen of cost, by swelling the pleadings with the statement of the several claims against the other defendants, with which he has no connection ; (Coop. Eq. Pl. 182 ; Mitf. 146 ; 2 Madd. Ch. 294 , 2 Harr. Ch. Pr. 289 ; 1 East, 227;) and also to prevent confusion, and to preserve some analogy to the comparative simplicity of declaration at common law. But where several persons, although unconnected with each other, are made defendants, a demurrer will not lie, if they have a common interest centering in the point in issue in the cause. (2 Anstr. 477. 2 Madd. Ch. 294.) Nor will it lie, where one general right is claimed by the bill, though the defendants have separate and distinct rights. Thus, in the Mayor of York v. Pilkington, (1 Atk. 282,).it was held that a bill to quiet the plaintiff in a right of fishery, mighfbe brought against several defendants, although there was no privity between them and the plaintiff, and they claimed distinct rights. The plaintiff claimed a general right to the fishery extending to all the defendants ; and it was held that they might avail themselves of their several exemptions and distinct rights, upon an issue to try the general right. The bill was sustained for the sake of peace and to prevent a multiplicity of suits. A bill against several unconnected defendants, to establish the custom of a mill, and a right to tithes, has been sustained upon the same general principle; and that it was for the establishment of a right liable to invasion by all the world. (Whaley v. Dawson, 2 Sch. & Lef. 370.) But the proprietor of a copy-right cahnot proceed in one bill against several booksellers, between whom there is no privity or connection, for a violation of his right. This was so held in Dilly v. Doig, (2 Ves. Jun. 486;) and the Lord Chancellor remarks, that he does not remember any case upon patent rights, where a number of persons acting all separately Upon distinct grounds, have been permitted to be brought before the Court in one hill; and he takes the distinction between a bill to establish a right of fishery, or the custom of a mill, and the case then before him. So also, if an estate is sold, in parcels, to different purchasers, the vendor can not unite them all in one bill for a specific performance, ndr can they unite in one suit against the vendor for the same purpose; for each contract is separate and independent, and each case must depend on its own peculiar circumstances. (Raynor v. Julian, 2 Dick. 677. Coop. Eq. Pl. 182.) In the case of Ward v. The Duke of Northumberland and The Earl of Beverly, (2 Anstr. 469,) the bill was held bad, not only because a considerable part of it related merely to the private concerns of the Duke, with which Lord Beverly had no concern; but it was bad as against the Duke alone, because, although he was interested in every part of it, it was in different characters; individually and solely as to some and in the character of executor, and jointly with Lord Beverly as to others. But Chief Baron M’Donald there recognizes the principle, “ that unconnected parties may be joined in a suit, where there is one common interest among them all, centering in the point in issue in the cause.”

It is not sufficient, as was held in Saxton v. Davis, (18 Ves. 71,) that the parties have a common interest in some one or more items in an account charged. The contrary position was taken in that case by the counsel for the complainants; but it was conclusively answered by Sir Samuel Romilly, that if that were sufficient, the .objection to a bill, as multifarious, could never be sustained.- They 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. And this seems to be the general test laid down in all the elementary writers, and acknowledged by all the cases in England. The only difficulty is in its application.

it is not sufcommon inter-one, “m- moro

This question was fully considered and discussed by the late Chancellor in Brinkerhoff v. Brown, (6 John. Ch. Rep. 139;) which was a case very analogous, in many respects, to the one now before the Court. The complainants, in that case, were several distinct and unconnected judg ment creditors of the Genesee Manufacturing Company, and the object of their bill was to 'obtain satisfaction of their debt out of the property of the company, which they alleged had been withdrawn from the reach of their executions by the fraudulent acts of the defendants, some of whom were the trustees of the company: and one object of the bill was, to charge the trustees individually, for neglect of duty and fraud. With that charge, it was said, the defendants who were not trustees had no concern. Another object was, to charge others of the defendants as stockholders, and another, to redeem certain personal property purchased by two of the defendants, with which the other defendants were not shown to have any concern. The bill charged that five of the defendants fraudulently confessed a certain judgment, in which the other two were not alleged to have had any interest: and the bill was demurred to as multifarious, on these among other grounds. The Chancellor, after stating the facts in the case, remarks. “ it thus appears, from the -bill, that all the defendants were not jointly concerned in every injurious act charged. There was a series of acts on the part of the persons concerned in this company, all produced by the same fraudulent intent, and terminating in the deception and injury of the plaintiff. The defendants performed different parts in the same drama, but it was still one piece, one entire performance, marked by different scenes; and the question' now occurs, whether the several matters charged are so distinct and unconnected, as to render the joining of them in one bill a ground of demurrer.” After considering all the English cases, he observes, that “ the principle to be deduced from them is, 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.” And, in relation to that particular case, he goes on to remark that, “ when we consider that the plaintiffs are judgment creditors, having claims against the Genesee Company perfectly established, and not the subject of litigation in this suit; and that the general right cG^ed by the bill is a due application of the capital of that company to the payment of their judgments; that the subject of the bill, and of the relief, and the only matter in litigation, is the fraud charged in the creation, management and disposition of that capital, and in which charge all the defendants are implicated, though in different degrees and proportions, I think we may safely conclude, that this case falls within the reach of that principle, and that the demurrer cannot be sustained.” He accordingly overruled it. These observations are as just and pertinent in their application to this case, as to that in which they were used. Here the respondents are judgment creditors of John Fellows, having their claims perfectly established by a decree in chancery, and not the subject of litigation in this suit. Here also the general right claimed by the bill is a due application of the property of John Fellows to the payment of their judgment. Here also the subject of the bill and of the relief, and the only matter in litigation, is the fraud charged in the management and disposition of that property; and in which charge all the defendants are implicated, though in different degrees and proportions. Here the defendants, therefore have one common interest among them all, centering in the point in issue in the cause, and distinct matters, of different natures, are not demanded by the bill. It is one matter, the property of John Fellows; and the point in issue, upon which the rights of all the parties must depend, is, whether the transfer of that property to his sons and son-in-law, who are his co-defendants, was fraudulent or not. Why may not that question be tried as well in one as in three suits ? The transfer to each is alleged to have been made with the same fraudulent intent, at the same time; to have been received by each without consideration, with a full knowledge of. the fraudulent motive with which it was made, and an entire acquiescence and participation in it. It was in truth but one transaction, in which the defendants all participated. The evidence in relati on to each must be substantially the same. Neither the pleadings nor the proofs are essentially varied or enlarged, from wnat they would necessarily have been, had the bill been filed against one of the defendants only. If all the parties to a fraudulent transaction, like this, cannot he called to an account in one suit, it is in the power of dishonest debtors, by a distribution of their property, in minute portions, among their relations and friends, to defraud their creditors and set them at defiance with impunity. The expense and the delay of separate suits, would render their prosecution worse than useless, for all purposes of indemnity or relief. The establishment of such a doctrine would be most mischievous ; and I am persuaded that it has as little foundation in authority, as it certainly has in the large and comprehensive principles of substantial justice and equity.

The decision in Brinkerhoff v. Brown, 6 John. Ch. Rep. 139, applied to this cause

Respondents have not joined claims in their own right and en autre droit

An administrator purchasing land on a decree in favor of his intestate, must account for it to his eestuy que trust.

The other point, made on the part of the appellant, that the respondents have joined and connected claims in their own right, and claims in their right as the representatives of Ezra Fellows, is unfounded in fact. It grows out of that part of the bill in which the respondents state the proceeding upon the execution, and the sale of the real and personal estate ; and that they became the purchasers, at such sale, of the lot which had been conveyed to Roswell Day and Thomas Fellows. The first objection is, that they do not state in the bill, that they purchased as administrators. That allegation is in the same form with every charge in the bill. It commences by stating the respondents to be the representatives of Ezra Fellows, and in all the subsequent parts, they designate themselves simply as your oratrix and orator, without adding their description of administrators. But that is to be understood throughout, and was unnecessary to be stated. If then, they purchased as administrators, it is not for the defendants to question their authority. It is to be presumed in this stage of the cause, that they purchased at the request and for the benefit of the heirs ; and a Court of Equity would compel them to account to the estate.

I am, therefore, of opinion that the decree of his Honor the Chancellor should be affirmed.

The rule in Brinkerhoff v. Brown, is the correct one, and this case comes within it.

Savage, Ch. J.

In Brinkerhoff v. Brown, (6 John Ch. Rep. 157,) the late Chancellor, after a full examination of the cases cited on the argument of this cause, deduces from them this principle : “ 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.” The cases cited, in my judgment, warrant this rule. In Dilly v. Doig, (2 Ves. Jun. 486,) it was held that two booksellers, who had been guilty of an invasion of the plaintiff’s copy-right, could not be joined as defendants in the same bill, on the ground that there was no privity. The Lord Chancellor says, however, “ If the defendant against whom you had got the injunction, had transferred his books to another, I would have followed it.” Now it is fair to infer, that if the bookseller enjoined, had sold his books to several persons who were privy to the injunction, and all of whom took the books with the express purpose of defrauding the plaintiff, though each might have no interest in the books sold to the other, yet they would have been so far connected as to be properly joined in one suit.

In the case put by Ld. Kenyon, of an estate sold in parcels to several individuals, who could not be permitted to unite in a bill for a specific performance, there is a distinct contract with each individual which may admit of very different considerations. Not so in the case now before the Court. There was, in the hands of John Fellows, certain property in the custody of the law, sequestered if I may use the expression, and set apart to answer the demand of Ezra Fellows. This fact was perfectly known to all the defendants ; and each of them, separately, as we are to intend, (for they have denied the combination and confederacy,) conspired with John Fellows, to defraud the respondents, by collusively taking separate parts of the property, and holding it for the benefit of John Fellows. There was no privity between William Fellows, Thomas Fellows, and Roswell Day, but there was privity between each of them and John Fellows. If, then, we take the rule as laid down by the counsel for the appellant, “ that there must be a common point of litigation, the decision of which affects the whole, and will settle the rights of all,” still this case comes within it. The common point of litigation is the fraudulent transfer of the property hy John Fellows to the otber defendants. If the source of their title he, cojrupt, the property is taken with the taint of corruption, and though the person receiving it may have been innocent, of an fraud, yet he must suffer a loss in consequence of the impure channel through which it came. This point was so decided, at the last term of this Court, in Whelan vWhelan, (3 Cowen’s Rep. 537.) And if so, with respect to an innocent person, a fortiori, a partaker in the corruption shall not retain what he has thus received. In my opinion, therefore, the appellant, here comes within the rule relied on by the respondents. The matters are not distinct. They are component parts of one corrupted body.

Here is a common point of litigation, the decision of which affects the whole subject, and will settle the rights of all.

On this point, (and this I consider the only point in the case,) I am of opinion that the decree of his Honor the Chancellor, be affirmed.

. An admim'strator buying land under a of his'intesfate1 must account tuyque'Zutt

There is no ground for the allegation, that the respond- . . . , ents come m two capacities. They acted throughout as representatives of Ezra Fellows ; as trustees for those interested in the estate ; and to whom they are accountable *Pr the land, purchased with the estate in the respondent’s hands.

The point.

Matters dis-different1111 naf tures, cannot same biU.m the

Golden, Senator. It is not denied that, under, the case made by the bill, the respondents may be entitled to relief; but it is contended that the Court of Chancery could make. no decree in their favor in this case, because the appellant was impleaded in the Court below with other defendants, ^ *s Emitted to be a rule of Equity pleading, that matters which are distinct, and of different natures, cannot be joined in the same bill.

Difficulty of applying the rulo has given rise to several

it often happens that it is not easy to ascertain whethei 'x the matters, which are the subject of a suit, are or are not ¿qst¡nct and of different natures : and, therefore, it is froquently difficult to determine when the rule I have mentioned is to be applied. It is this difficulty which has given riss to the numerous cases that, have been cited in the argument.

I shall not attempt to reconcile, these authorities ; cr to do more than to ascertain whether the general rule be applicable to the case now under consideration, so as to preclude the respondents from maintaining their suit

The counsel for the appellant coxxld not avoid admitting, that if there were a joint liability on the part of the defendants below, the demurrer could not be sustained. And they also, very properly, as it appears to me, admitted that if the defendants below were parties to the fraud, which is the gravamen of the bill, and acted in concert to accomplish it, there was such a connection between them as would render them jointly responsible. Then the question which we are to decide is, in my opinion, reduced to this: whether the facts stated in the bill, warranted the Chancellor in concluding that all the defendants below were parties and confederates in the fraud, which it is alleged was practised by the father, in transferring his real and personal property to his son-in-law and to the brothers of Ezra.

Whether the chancellor was warranted by the bill, in saying that all the defendants were confederates in the fraud.

It is expressly stated in the bill, that each of the defendants below were acquainted with all the transactions of the father, in relation to the property in question, from the time of the. sale to Adsit, till it came into their hands. They had full knowledge of the proceedings in the revived suit against the father, and of the injunction xvhich was granted in that suit. They advised and aided the father in the management and defence of that suit. They took from the father, without giving him any consideration, a voluntary conveyance, in different parts, of all his property, each of them knowing that such transfer was made with a view to defraud, and that it would defraud Ezra. To William, the-appellant, the father transferred two of the Adsit notes; to Thomas two other of the same notes, which notes, or their proceeds, it is averred, these sons fraudulently retain. To the son-in-laxv, the father conveyed a farm in Malta, as the bill charges,, fraudulently, voluntarily, and without consideration, and with a view to avoid the effects of a decree against him in the pending suit: and in the same way, and with the same views he conveyed another- piece of land in Malta, to his son Thomas.

What is stated in the bill.

It is expressly charged in the bill, not only that this property was transferred to, but that it is held by the grantees, with a view to defeat the claim of their brother Ezra.

Now if we take the allegations of the hill to be true, it seems to me that we cannot hesitate to say that the defendants below were j oin tly 'cone erne d in practising the fraud, which was intended to defeat, and which has hitherto defeated, the just claim of the respondents.

Taking this to be true, the defendants were jointly concerned.

I say the just claim, because, although we have heard from the counsel that the farm at Stillwater originally belonged to the father, and that his object was to make a distribution of it among his children, yet no such facts appear on the record. We know of no owner of the farm prior to Ezra.

We may apply to this case, in my opinion, with great propriety, the words of the Chancellor in Brinkerhoff v. Brown. (6 John. Ch. Rep. 139 :) “ there was a series of acts on the part of the persons concerned, all produced by the same fraudulent intent, and terminating in the deception and injury of the respondents. The appellants played different parts in the same drama, but it was still one piece, one entire performance, marked by different scenes.” Other expressions of the Chancellor, in the same case, are not less adapted to the present occasion. “ The subject of the bill,” says he, “ is the fraud charged; in which charge all the defendants are implicated, though in different degrees and proportions.” The connection between the defendants in that case, and their co-operation in the transactions which were the foundation of the suit, were certainly less obvious than is the participation of the defendants below in the acts against which relief is sought in the present instance.

It is hardly necessary to stop, to point out the great difference between the case presented by the bill, and the cases cited by the counsel for the appellant; in which it is decided that independent, unconnected holders of different parts of property which a complainant may claim, either on the ground of its having been fraudulently transferred to them, or on any other ground, can not be made the subject of a single suit.

Effect of the answer.

But it is said that though the demurrer would, if it stood alone, admit the allegations of the bill, and would therefore acknowledge the fraud, and the co-operation of the defendants below in its perpetration; yet that there is in this case an answer ; and that the answer denies the ‘fraud, and the charges in the bill from which it is deduced. If this were so, I think there would be no hesitation «in deciding that the suit against the defendants jointly could not be maintained. But so far from this being the case, the answer does no more than deny the general and formal charge of combination. It appears to be drawn with great care not to deny any one of the facts which are stated in the bill as evidence of the fraud, and from which the conclusion that the appellant, William, acted in concert with his father and brother-in-law, with a design to defraud Ezra, results. Had the appellant said in his answer, that he knew nothing of the agreement between Ezra and his father, that he was not privy to the relinquishment of the bond and mortgage to Adsit, and the substitution of the Adsit notes, and the new mortgage; that he was ignorant of the proceedings in the original, and in the revived suit; that he and the defendants below were not their father’s agents, or advisers in the management of that suit; that the transfer of the notes and the conveyances of the lands were made for a good or valuable consideration, and without any design to defeat the claim of the respondents, then the interest of the defendants would have been distinct and separate; there would have been no joint liability; and though a demurrer might not have been proper, if the answer had met these charges, as it would then have covered the whole bill, yet such an answer, if it would not have defeated the claim of the respondents, would at least have been fatal to this joint suit.

But the answer we have now before us is, as I have said, no more than a denial of the combination; and, indeed, amounts only to the general denial of fraud and confederacy, which is the conclusion of all answers, and which is always insufficient where, as in this case, fraudulent acts are particularly charged.

There is another ground on which, in my opinion, this demurrer must fail. It is charged in the bill that the notes were transferred, and the conveyances made to secure them as the effects of John Fellows, and with respect 1 o the lands, it is averred that they are held for h's use and benefit. These charges are not denied by the answer, and are, there* fore, admitted by the demurrer. The defendants below then, took and yet hold the property or the proceeds, as trustees for the grantor. I apprehend a Court of Equity would never allow trustees, under these circumstances, to set up their title or trust, against the claim of a creditor of the cestuy que trust.

The defendants who took the property, were mere trustees of John Fellows, and, as such, jointly liable.

Again,, if the property be the property of John Fellows, in the hands of the defendants below as his trustees, though they hold different parcels of it, the suit is not for separate and distinct matters, any more than it would be if it were against John Fellows himself solely, and claimed from him money, notes and lands.

The respondents have not joined claims in their own right, and en autre droit.

It has been objected that the defendants below are not .. , . proper parties, inasmuch as they claim in their representative characters, and the transactions show that if they have ....... . .any title, it is m their own right. But it appears to me that the complainants had no connection with these affairs but as administrators. This and another point made here, viz. that the notes were res judicata, do not appear, from the Chancellor’s opinion, to have been raised when the cause was before him. They do not. seem now to have been much relied upon by the counsel for the appellant, and I am not prepared to say that the demurrer can be sustained on either of these grounds.

The rule that multifarious matters shall not be joined in the same suit, seems to me to be all that requires consideration for the decision of this case.

The rule cm* Matters shall not be same^Biút, is^a ™le of coaTe" menee.

This is a rule of convenience ; and however necessary its general observance may be, yet, though in this case it were to be admitted that the matters are distinct, and of different natures, (which in my opinion they are not) still it is obvious that iustice may be administered between the parties in this suit, without subjecting the appellant or his co-defendants to any of the embarrassments, the fear of which is the foundation of the rule. Nevertheless, if it appeared clearly to be applicable to the case, we could not refuse the appellant the advantage of it. But when it is so apparent that justice may be done, although there should be error in not allowing the demurrer, there is less reluctance in deciding that it must be overruled.

My opinion is, that the decree of his Honor the chancellor, should be affirmed.

This being the unanimous opinion of the Court, it was thereupon, ordered, adjudged and decreed, that the decree of his Honor, the Chancellor, in this cause, be affirmed, with costs to the respondents, to be taxed upon the appeal to this Court; and that the record and proceedings, &c. be remitted, &c.