Harrison v Stewardson
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1842 |
| Date | 01 January 1842 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 219
HIGH COURT OF CHANCERY
[530] harbison v. stewardson. Dec. 22, 1842; Jan. 11, April 19, June 13,1843. Twenty creditors, interested in a real estate, are not so large a number that the Court will, on the ground of inconvenience alone, allow a few of them to represent the others, and dispense with such others as parties in a suit to recover the estate against the whole body of creditors. Process for taking a bill^ro confesso under the 1st Order of the llth of April 1842, against a Defendant deemed to have absconded, after appearance by his own Clerk in Court. Order 1 of the llth' of April 1842, as to taking bills pro confesso, applies to suits commenced before, as well as after, the date of the order. The Plaintiff was a creditor of the Defendant, Stewardson, and recovered judgment against him for 120 damages and 13, 2s. costs, which was entered up, and a memorandum thereof registered by the Senior Master of the Common Pleas in February 1840. In January of the same year, while the Plaintiff's action was pending, Stewardson conveyed and assigned his real and personal [531] estate to Proctor and Wharton, in trust for such of his creditors as should execute the indenture within three months. Proctor and Wharton, who were themselves creditors, executed the deed in the same month of January, and eighteen of the other creditors executed it in April following, after the Plaintiff's judgment was registered. Proctor and Wharton, in October 1841, sold the real estate (consisting of about twenty-six acres of land, subject to a mortgage for 500) to the Defendant, Park, for a sum of 120. The Plaintiff filed her bill in March 1842, stating that the creditors who had executed the said indenture were so numerous that it was impossible to make them parties, or to prosecute the suit if they were made parties. The bill prayed that the sum due upon the judgment might be declared to be a charge upon the said land prior to any 220 HARRISON V. STEWARDSON 2 HAKE, 532. interest created by the conveyance to Proctor and Wharton, or by the sale to Park; and that the premises might be sold, and the proceeds applied in payment of the incumbrances, according, to their priorities. The Defendants, Proctor and Wharton, stated in their answer the names of the persons who had executed the deed. Park objected by his answer that such creditors were necessary parties. The bill was taken pro confesso against Stewardson. (See p. 533, infra.) At the hearing, Mr. T. J. Phillips, for the Defendants, Proctor and Wharton, submitted that all the creditors who had executed the assignment of January 1840 were necessary parties. Mr. Anderdon and Mr. Bird, for the Defendant, Park. Mr. Tinney and Mr. Lewin, for the Plaintiffs, ar-[532]-gued: 1. That the only creditors who executed the deed, before the PlaintiiFs judgment, were before the Court, and the others had acquired no interest in the estate as against the Plaintiff. 2. That it appeared by the answer that there were eighteen creditors who had since executed the deed, and they were therefore too numerous to be made parties. 3. J^o direct relief was sought against the creditors who were absent, and their rights, so far as they could be affected in this suit, were sufficiently protected by the trustees and creditors who were before the Court. The following authorities were referred to :-Newton v. Earl of Egmont (5 Sim. 130), Harvey v. Harvey (4 Beav. 215), Douglas v. Hors/all (2 S. & S. 184), Lord Eedesdale, Tr. PL p. 142, ed. 3, p. 174, ed. 4, where it is said that "trustees of a real estate for payment of debts or legacies may sustain a suit either as Plaintiffs or Defendants, without bringing before the Court the creditors or legatees for whom they are trustees, which in many cases would be almost impossible; and the rights of the creditors and legatees will be bound by the decision of the Court against the trustees." June 13, 1843. the vice-chancellor [Sir James Wigram]. It is impossible to say that the practice of the Court is in conformity with the passage which has been cited from Lord Eedesdale's Treatise, for almost the universal rule is to make legatees parties whose legacies are charged on real estate. To relieve parties from this necessity in cases where trustees are fully empowered to administer and distribute real estate, and to place such trustees in a position analogous to that of executors, is the [533] purpose of the 30th Order of August 1841. In cases like the present the general rule is that all the persons interested in the estate shall be parties to the suit. Upon the facts, as they appear, I cannot assume that there will be any practical difficulty, or that these creditors will of necessity be litigious. I am satisfied that there is no authority for saying that the number of eighteen or twenty persons is so great that the inconvenience of making them parties should lead the Court to dispense with their presence in the suit, and allow their interests to be represented by the two who are before the Court. The cause must stand over, with liberty to...
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