Howe v. Robins

New Jersey Court of Chancery

Howe v. Robins

36 N.J. Eq. 19

DecidedOctober 15, 1882

StatusPublished

This text of 36 N.J. Eq. 19 (Howe v. Robins) is published on Counsel Stack Legal Research, covering New Jersey Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Howe v. Robins, 36 N.J. Eq. 19 (N.J. Ct. App. 1882).

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Opinion

The Chancellor.

The bill is filed to follow trust funds which, it alleges, were invested by a trustee by malversation in property, the title to which he took in his own name, and which he, at his death, [20]*20claimed to own as his individual estate. It prays for a decree establishing the rights of the cestuis que trustent in the premises, and incidentally for a discovery; also for a distribution of the fund and an injunction to protect it pendente lite. Various objections are made to the bill under the notice, some in the nature of a general and others of a special demurrer. The-former are not well taken; the latter are. The prayer for process is fatally defective. While the bill prays for process against “ the said defendants,” without naming any person, it does not appear from the other parts of the bill, with reasonable certainty,, who are referred to as “the said defendants.” The persons-mentioned in the preceding part of the bill as the defendants, are-the heirs of the trustee alone — his children. His executrix and his widow have both been subpoenaed to answer, but there is no-prayer for process against either of them. They are necessary parties, and so are the other persons interested with the* com[21]*21plainant as distributees of the fund which the suit is brought to recover, and of which the bill prays distribution. The complainant will have leave to amend on payment of costs.

A prayer that, in a certain contingency, which has not happened, another person be made a defendant, does not make him a party, Doherty v. Stevenson, 1 Team. Ch. 518; see Valentine ¶. Fish, 45 111. 488. The character in which defendant is sued must also appear in the prayer, Carter v. Ingraham, 48 Ala. 78; Brasher v. Van Cortlandt, 8 Johns. Ch. 848; Lawson y. Kolbenson, 61 111. 405. The following eases show what has been held a sufficient designation of the-defendant in the prayer for process : Where several stockholders, including the-objecting defendant, were mentioned by name, and that the subpoena be directed “to the aforesaid stockholders hereinbefore mentioned and stated,” Carey v. Hillhouse, 5 Qa. 851; where a grantor left many children, all of whom are dead but the defendants A, B and C, and process prayed against the defendants, Williams v. Burnett, Busb. Eq. 809. The following were deemed insufficient: “That the clerk be ordered to-issue subpoenas to the proper defendants,” Hoyle v. Moore, 4 Ired. Eq. 175; where a corporation was defendant, and the process was prayed against its-president and directors, Verplanck v. Mercantile Ins. Co., 8 Paige 438, 1 Edw. Ch. 84 ; Walker v. Hallett, 1 Ala. 379. Objection may be raised by demurrer, Wright v. Wright, 4 Hal. Ch. 143 ; Archibald v. Means, 5 Ired. Eq. 830; Palmer v. Stevens, 100 Mass. 461; see Boon v. Pierponl, 1 Stew. Eq. 7; Ferguson v. Hass, Phil. {N. C.) Eq.113; but is waived by the defendant appearing and answering, Seger v. Thomas, 3 Blatehf. 11; Airs v. Billops, 4 Jones Eq. 17; Belknap v. Stone, 1 Allen 578; or appeai-ing and allowing a decree pro confesso to be taken, Brasher v. Van Cortlandt, 8 Johns. Ch. 848. — Rep.

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The Chancellor.

The bill is filed to follow trust funds which, it alleges, were invested by a trustee by malversation in property, the title to which he took in his own name, and which he, at his death, [20]*20claimed to own as his individual estate. It prays for a decree establishing the rights of the cestuis que trustent in the premises, and incidentally for a discovery; also for a distribution of the fund and an injunction to protect it pendente lite. Various objections are made to the bill under the notice, some in the nature of a general and others of a special demurrer. The-former are not well taken; the latter are. The prayer for process is fatally defective. While the bill prays for process against “ the said defendants,” without naming any person, it does not appear from the other parts of the bill, with reasonable certainty,, who are referred to as “the said defendants.” The persons-mentioned in the preceding part of the bill as the defendants, are-the heirs of the trustee alone — his children. His executrix and his widow have both been subpoenaed to answer, but there is no-prayer for process against either of them. They are necessary parties, and so are the other persons interested with the* com[21]*21plainant as distributees of the fund which the suit is brought to recover, and of which the bill prays distribution. The complainant will have leave to amend on payment of costs.

A prayer that, in a certain contingency, which has not happened, another person be made a defendant, does not make him a party, Doherty v. Stevenson, 1 Team. Ch. 518; see Valentine ¶. Fish, 45 111. 488. The character in which defendant is sued must also appear in the prayer, Carter v. Ingraham, 48 Ala. 78; Brasher v. Van Cortlandt, 8 Johns. Ch. 848; Lawson y. Kolbenson, 61 111. 405. The following eases show what has been held a sufficient designation of the-defendant in the prayer for process : Where several stockholders, including the-objecting defendant, were mentioned by name, and that the subpoena be directed “to the aforesaid stockholders hereinbefore mentioned and stated,” Carey v. Hillhouse, 5 Qa. 851; where a grantor left many children, all of whom are dead but the defendants A, B and C, and process prayed against the defendants, Williams v. Burnett, Busb. Eq. 809. The following were deemed insufficient: “That the clerk be ordered to-issue subpoenas to the proper defendants,” Hoyle v. Moore, 4 Ired. Eq. 175; where a corporation was defendant, and the process was prayed against its-president and directors, Verplanck v. Mercantile Ins. Co., 8 Paige 438, 1 Edw. Ch. 84 ; Walker v. Hallett, 1 Ala. 379. Objection may be raised by demurrer, Wright v. Wright, 4 Hal. Ch. 143 ; Archibald v. Means, 5 Ired. Eq. 830; Palmer v. Stevens, 100 Mass. 461; see Boon v. Pierponl, 1 Stew. Eq. 7; Ferguson v. Hass, Phil. {N. C.) Eq.113; but is waived by the defendant appearing and answering, Seger v. Thomas, 3 Blatehf. 11; Airs v. Billops, 4 Jones Eq. 17; Belknap v. Stone, 1 Allen 578; or appeai-ing and allowing a decree pro confesso to be taken, Brasher v. Van Cortlandt, 8 Johns. Ch. 848. — Rep.

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36 N.J. Eq. 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howe-v-robins-njch-1882.

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