Nash v. Smith

6 Conn. 421

• Court: Supreme Court of Connecticut
• Decided: June 15, 1827
• Status: Published

Opinion

Peters, J.

Several causes of demurrer are assigned. 1. That the plaintiff has not annexed to his bill an affidavit that it is not exhibited in collusion with any of the parties. Such an affidavit is required by the English practice. Mitf. 49. Coop. Eq. Plead. 49, 50. This practice has not been adopted here ; but it has been decided, by this Court, that an affidavit is not required to be annexed to a bill, in any case. Jerome v. Jerome, 5 Conn. Rep. 352.

2. That the plaintiff has not brought, nor offered to bring, into court the money received by him. It seems to be a rule in England, that the plaintiff in a bill like this, should bring, or offer to bring, the money or thing in question into court; and if not done, it is cause of demurrer. 1 Madd. Chan. 142. But I am not aware, that it has been adopted in this state ; and it is not very rigidly enforced in England. “ A bill of this nature,” says Milford, “ generally prays an injunction to restrain proceedings of the claimants in some other court; and, as this may be used to delay the payment of the money by the plaintiff, if; any is due from him, he ought, by his bill, to offer to pay the mosey into court. If he does not do so, it is, perhaps, in strictness, a ground of demurrer.” Mitf. 126. Maddock lays down the same rule, but adds,: " If such offer is not made, the court, upon the application of either of the defendants, will order the plaintiff to bring, the property, or pay the money, into court.” 1 Madd. Chan. 143.

3. It is said, that the plaintiff has paid over the money, and therefore needs not the aid of the court. But this payment was not voluntary. 11 was made under a claim of right, to which the plaintiff was bound to submit; and he is now bound to bring the money into court, if required, on the application of either of the defendants. 1 Madd. Chan. 142.

4. It is said, Mitchell has no interest in the question; and that there are no conflicting claims. But the claims of the defendants are certainly notin unis on. Mitchell claims the whole as the separate property of Silliman. He is now amenable to this Court, and bound, at all events, to indemnify the plaintiff; for it is an established principle in law, as well as in equity, that where one employs another to do acts not mala in se, for the purpose of asserting a right, the law implies a promise of indemnity ; as where a creditor directs an officer to levy on property, which proves not to be the debtor’s, and the officer is subjected, he is entitled to indemnity. 1 Swift’s Dig. 414, Mitchell, then, is interested, as well in the question as in the event. If the claims of the other creditors are well founded, they have a priority; for it is a well settled rule, that copartnership property must first satisfy copartnership debts. Church v. Knox & al. 2 Conn. Rep. 514. Pierce v. Jackson, 6 Mass. Rep. 242.

5. It is said, that the defendants have not embarassed the plaintiff. But one of them has induced him, under a claim of right, to give up 1294 dollars; and two of them have sued him for the same money.

6. It is said, that the bill seeks relief against suits for breaches of official duty, and an undue preference given by him to a creditor of one partner over the creditors of the firm. It is true, that the suits whereof the plaintiff complains, are, in form, for breaches of official duty ; but they are bottomed on a controverted title to property, in which the defendants alone are interested, which he seeks to have litigated and adjusted between them : and it does not appear, that he has given a voluntary preference to any of them. He was bound to serve all the writs according to law, and the direction of the creditors, in the order they were delivered to him.

Lastly, it is claimed in argument, that Silliman and Cooke ought to have been made parties. But this is not set down as cause of demurrer, and therefore, cannot be noticed in this stage of the pleadings; as a demurrer must express the grounds on which it is founded. Blake’s Pract. 109. And by our own practice, a bill is never dismissed for want of parties, but may be continued to bring them in.

The decree of the superior court is erroneous, and must be reversed, and the cause remanded.

Hosmer, Ch. J. and Brainard, and Lanman, Js. were of the same opinion. Daggett, Ch. J. gave no opinion, having been of counsel in the cause.

Decree reversed; and Cause remanded.