Hicks & Hathaway v. Campbell

The sales, and the suits in replevin of tho three different sets of complainants, are no doubt separate and distinct matters, in no wise connected, and neither party has, or can have, an interest in the sales of, or suits by, the other parties ; if there was no other common bond between them to unite them in this suit, the demurrer would be well taken, both on the ground of multifariousness and that of misjoinder of complainants. But they are connected by the fact, that the lien of Campbell, from which this bill seeks to relieve them, was a common lien on the flour of each of them, for *186one advance on the whole, and on the flour of the other defendants. They are in the same situation as the separate owners of three parcels of land encumbered by the same mortgage, seeking to redeem : neither can redeem separately his own parcel without paying the whole mortgage debt, when, in equity, each ought to pay his share. The obligation is in both cases a joint one, and the parties so jointly bound have a right to join in one suit for relief; and the same reason makes it proper that they should join in one suit against the defendants, Phare & Thorp and E. W. Coleman, who, in equity, are entitled to be subrogated to the right of Campbell, and to have a proper share of the lien paid by the complainants. In this suit, either of the complainants would not be entitled to proceed separately for relief without making both the others defendants as well as the two who have in effect paid off the lien ; the whole equity of the case could not be adjusted unless they were before the court. It is, therefore, no misjoinder, if they agree so to do, that they should come before the court jointly, as complainants.

Whedon & Company, being parties to the replevin suits, as well as the bailors of the goods pledged to Campbell, to whom he is prima faaie bound to re-deliver them upon being re-paid his advance, are necessary parties to the suit. Campbell would not be protected, as against them, if not made parties.

It was urged on the argument, that the demurrer should he sustained as well taken, though the cause assigned might not be sufficient, because the case set forth in the bill showed no equity or ground for relief; that, although it was a sale for cash, yet, as the goods were delivered unconditionally, without payment, the title passed, and the sale would not be held void for non-payment. That may be the law of New York, where the sale took place. Yet the bill expressly avers that the purchases were made through false and fraudulent misrepresentations; and this, if true, is sufficient *187to avoid the sale, as to the purchaser. The demurrer cannot be sustained on that ground.

The complainants will be allowed to amend their bill by making Whedon & Company parties, but it must be on payment ox the costs of the demurrer. The twenty-seventh section of the chancery act takes away in this case the discretion under which a different practice prevails in England. 1 Dan. Chan. Prac. 626.