Moore's adm'r v. George's adm'r

concurred in this opinion, and Cabell, J. in that of the president.

I think there is no doubt on the first point in this case, the want of parties. The general doctrine is, that if a person who ought to be a party departs from the jurisdiction of the court, the plaintiff cannot be required to make him a party. Mitf. PI. book 2. ch. 3. If a sufficient reason for npt bringing a party before the court is suggested by the bill, as if a party is resident out of the jurisdiction of the court, and that fact is charged, a demurrer will not hold. Nor does the act directing the method of proceeding in courts of equity against absent debtors affect that doctrine. That act was in ease of creditors whose debtors were absentees, to enable them to obtain their debts from resident debtors of the absentees. It does not apply to prevent a creditor or legatee from proceeding against the resident sureties of the absent debtor or personal representative. The facts alleged in the bill, that George the brother of the appellee’s husband had been paid the amount due him, that he had left the country, and that, if alive, his *246residence was not known, (none of which circumstances are denied by the defendants,) place the case on different ground from the case of Richardson's ex'or v. Hunt, 2 Munf. 148. The objection to the want of parties, I think, has nothing in it.

The second point is, that the plaintiff having made William Bowden a party, as being indebted to the absentee Brown the administrator, she ought to have pursued her claim against him or his representatives, until the assets in their hands, if any, were exhausted, before the defendants the sureties should be made responsible. I think it must be admitted that the plaintiff was under no obligation to make Bowden a party; but having made him a party in ease of the sureties, I do not think she was bound to proceed against his executrix, when it was found that if there were any debt due by Bowden, the amount could not be ascertained but by a prolix proceeding to get at the reversionary interest of his wife in some slaves. On the contrary, I think that upon the coming in of the answer of Bowden's executrix, the plaintiff should have had a decree for the amount of her claim against the absent administrator and bis sureties, leaving it to them to seek indemnity from Bowden's estate, if they really thought he was indebted to Brown, the administrator and absentee. On these grounds, I am (as I was on the former argument of the case) for affirming the decree.

This case has again been fully argued, and although I am still of opinion that the decree should be reversed, yet upon the question of parties my views have been somewhat changed. Concurring heartily in the principle-of former decisions as to the right of an executor or his surety, when sued by a residuary legatee or distributee, to require that all such legatees or distributees should be parties, I am of opinion that it is a right which is conceded for his own benefit, and *247which he may therefore waive. I am moreover of opinion, upon the principle stated a few days past in Manns v. Flinn's adm'r,* that as that right was not insisted on or asserted, it must-be taken to be waived, or at least it cannot for the first time be asserted here. I am therefore of opinion that there was no error in not making--George a party defendant, the defendants not having made the objection in the court below, and the extent of the complainant’s rights being capable of ascertainment without him.

On the other point my opinion is unshaken, and is indeed confirmed and strengthened by the forcible views presented in the argument by the counsel of the appellants. Even if it be conceded that, upon the principles of Dabney's adm'r and others v. Smith's legatees, 5 Leigh 13. (which I fully approve) there was, in the commencement of the suit, no obligation on the complainant to pursue the funds in the hands of Bowden, yet after having instituted that proceeding, and by it attached those funds in the hands of the home defendant, she was bound in good faith to retain any lien she acquired. But for this'course of proceeding, the defendants would, it may be presumed, have taken that pursuit upon themselves. The complainant having done so, they were lulled into security. For seven or eight years the case was depending, and mrs. Bowden's answer having been entirely unsatisfactory, an order, and then an attachment, was moved for against her, to compel her to answer interrogatories. Thus far the sureties were led to believe that redress was in the first instance sought from her; when all at once the plaintiff abandons the pursuit, and moves to discharge the attachment, which the defendants thereupon instantly pray may be enforced. It is enforced. Mrs. Bowden confesses that 5000 dollars came to the hands of her husband as the agent of the administrator, but she says, through her agent, that the *248administrator was indebted to her husband to a much larger amount. Of this she furnishes no evidence; and herein the case is like that of Beckwith v. Butler, 1 Wash. 224. In this state of things a decree is rendered against the sureties, and being in its character final, (for the plaintiff has attained the object of her suit,) it operates a dismissal as to mrs. Bowden, if it does not discharge her from all future claim. The effect therefore is to remove the lien, if there was any, of the attachment, and to let loose the funds which the suit in effect had impounded. A stronger case cannot, I think, be presented. The plaintiff, by her course of proceeding, has lulled the defendants into security; she has failed to pursue with diligence a fund that might have been available, and has in effect released it by taking a final decree against -the sureties and waiving any decree against the garnishee.

It is said, indeed, that the creditor should not be compelled to go on with a pursuit that might delay him : and as a general principle this is undoubtedly true. Dabney’s adm’r and others v. Smith’s legatees, 5 Leigh 13. The prosecution of this suit manifests no unusual haste or diligence. In eight years the plaintiff might by reasonable diligence have brought about a full investigation of the accounts between Brown and Bowden, and have ascertained the truth of the allegation of mrs. Bowden, (which, by the way, had not the sanction of her oath,) of the existence of a debt to her husband from Brown of 33000 dollars. That debt she was bound to prove. It would lead to most mischievous consequences to decide that a garnishee, who has funds in his hands by his own acknowledgment, should sweep them off by a round assertion that he has demands more than adequate to the amount of them, without the shadow of proof of the existence of those demands. Here, indeed, the allegation has not even the support of the party’s own oath; for the anomalous case is presented *249of a defendant purging herself from a contempt, not only without oath, but through an agent merely. The proceeding was altogether irregular, as was also the failure to give notice to the sureties of the proceeding of the commissioner. This was peculiarly necessary in this case. For although it is true that at this stage the attachment was prosecuted at the instance of the sureties, yet as it was impossible for them to know when mrs. Bowden would attend to discharge the attachment by submitting to be examined, it was incumbent on the commissioner to give them notice, that they might attend for the purpose of putting the proper interrogatories.

I am, upon the whole, of opinion to reverse the decree, and send the cause back for further proceedings against the funds, of whatever kind, in the hands of the garnishee, which are chargeable with the plaintiff’s demand.

The decree entered in the court of appeals was as follows:

“ The court is of opinion that it would have been improper to postpone a decree in favour of the appellee against the appellants, until a final settlement of the accounts between the estate of Bowden and the absent defendant, and the enforcement of any claim that on such account might be shewn to be due from the estate of Bowden to the absent defendant, or until the equity of redemption in the slaves conveyed by the absent defendant as a security for any balance he might owe Bow-den's estate had been pursued, and, as far as it could be made available, charged with the appellee’s claim ; and that the decree in favour of the appellee against the appellants w’as not prematurely rendered. The court is further of opinion that as the decree appealed from made no final disposition of the matter in controversy in respect to the executrix and estate of William *250Bowden, that decree did not preclude the plaintiff, should the decree against the appellants prove unavailing, from farther proceedings against the executrix and estate of William Bowden, nor the appellants, after they satisfied or discharged the claim of the plaintiff, from enforcing their right of subrogation, by causing, on their application to the court by petition or cross bill, such farther proceedings to be had, either in the name of the appellee or their own, and in either mode at their costs, so as to obtain in this suit such relief as could have been obtained by the appellee, against the executrix and estate of Bowden, or from the said equity of redemption, had no decree been rendered- against the appellants; and that this right to cause such farther proceedings to be had should still be preserved to the appellee and appellants ; and that if such farther proceedings be not had within a reasonable time after this case shall return to the superior court, the suit, as to the representative and estate of William Bowden, ought, at the instance of such representative, to be dismissed for want of prosecution.” Therefore, decree affirmed with costs, and cause remanded for farther proceedings to be had therein according to the principles of the foregoing opinion and decree.

This suit was commenced in the court below twenty years ago, to recover a widow’s share of the distributable surplus of her husband’s estate, who died eight years before the suit was brought. The decree that has been rendered, and which is now in question, is for a sum that is incontestably due, and is against parties incontestably responsible. Notwithstanding this, it is exposed to objections which have been urged with unusual earnestness and ability by the counsel of the appellants, and which claim the gravest consideration.

The first is, that proper parties w'ere not made—that the other distributee or distributees of the intestate were proper parties, and no sufficient excuse is assigned for failing to make him or them parties, by name or description.

The bill treats the brother of the intestate as the only kindred of the intestate entitled to distribution; and in respect to him it suggests that he has been paid his full moiety of the estate, has left the United States, and his residence is unknown. This suggestion is not controverted by the answer.

By the well established practice of courts of equity, all known párties interested in a common unliquidated *239fund must be made parties in a suit demanding an ac-1 ° count and share of that fund. The object of this rule is to prevent multiplicity of suits, and save the parties accountable for the fund from the harassments of repeated settlements and litigation respecting it. This rule of practice is intended for the protection of the accounting party, and is enforced at his instance only. Hence, according to the course of the court of equity in England, the objection must be made by demurrer, either ore temes or in writing, or by plea or answer. When the objection has not been made and brought under notice of the court before decree, it cannot be effectually urged as cause of reversing the decree in an appellate tribunal. To allow it to be so urged by a party who has failed to urge it in the preliminary stages of the litigation, after all the expense and trouble of that litigation shall have been incurred, would frustrate the very object sought by the rule. That object cannot be attained, unless the party for whose protection the rule was established were required to ask its application to prevent future, rather than frustrate passed litigation, and by its frustration render future necessary. But this court has in several cases departed from the english practice, and treated the objection for want of parties as available to warrant the reversal of the decree, though not made in the preliminary stages of the litigation. To the authority of these cases I am bound to yield; and if the case in judgment be not distinguishable from them, it must add one more to the numerous and regretted examples of protracted and expensive litigation for an undoubted right, rendered fruitless by unskilfulness or mistake in the mode of asserting it.

In the cases referred to, it has been decided that all residuary legatees should be parties in a suit by one or more to recover their shares of the residuum; and though the objection that all are not made parties be *240not taken in the court below, it may be taken, and will justify the reversal of the decree, in the appellate court. The effect of these decisions is to save the defendant the benefit of the objection for the want of parties by reason 0f the omission of one or more residuary legatees, after decree, though not made by demurrer, plea or answer. In each of these cases, had there been a demurrer for that cause, it would have been sustained. It so appeared to the appellate court; and submission to the authority of the decisions made in them does not necessarily result in reversal for such an objection, unless it appears that had the defendant taken it in the preliminary stages of the -litigation, it must have been sustained. Does it so appear in the case in judgment ? The bill substantially alleges, that the brother of the intestate was his next of kin, and entitled as such to a moiety of the distributable surplus, which had been paid to him, and that he had departed from the state, and his residence 'was unknown. Would a demurrer to the bill for failing to make this absent brother a party have been sustained ? It would not, unless it be necessary to make parties those who were claimants on a common fund, but whose shares have been paid by the accountable defendant. Such necessity does not, in my opinion, exist. Such necessity does not result from the spirit and object of the rule of practice. I cannot doubt that the admitted allegation that one of the residuary legatees has been satisfied, obviates the necessity of making him a party, in a litigation to recover the shares of the others. If this be so, then had the defendant in this case demurred, he would have admitted the fact that justified the omission to make the distributee a party ; and failing to demur, had he objected by plea or answer the failure to make the brother a party, the plea or answer must have denied the fact on which the plaintiff had justified the failure: and no such denial has been made.

*241Furthermore, the casés before mentioned, in which, in effect, the benefit of the demurrer has been allowed in the appellate court though not taken in the inferior court, were suits by residuary legatees; and in each case the bills or wills under which the claim was made, shewed that there were other legatees, and who they were, and no excuse was offered for failing to make them parties. This case is that of a distributee entitled to a fixed portion of the estate without regard to the number of the other distributees, and those other distributees not known, or at least not ascertained by the court to be known, to the plaintiff. While the rule of practice invariably charges on the plaintiff claiming as residuary legatee, the duty of making all residuary legatees parties, if the objection for the omission be taken in due time, that is not the case with respect to a distributee plaintiff, unless it affirmatively appear that next of kin, other than the plaintiff, is known to the plaintiff; and unless it so appear, the suit proceeds, and (if asked for in its progress) an enquiry will be directed to be made by the master.

It is objected further, that there may be distributees other than the brother; and though not known, distributees, by the general description of distributees, ought to have been made parties by the bill. This objection is not well founded. 1st, Because the bill has treated the brother as the only distributee ; and that not being controverted, there was no occasion for the plaintiff to seek out or make other parties. 2ndly, If it had been admissible to act on the supposition that there were other but unknown distributees, the proper course would have been, not that suggested by the objection, but by a direction to the master to enquire and state to the court who were the next of kin; and this enquiry the defendants might have had, if the case had left room for it, and they had thought proper to ask it. Cooper’s Eq. PI. 39-40. Mitf. PI. by Jeremy, 167. et seq. My *242conclusion is, that the decree was not premature in favour of the plaintiff, by reason of want of proper parties.

The more serious question is, was it premature as to the appellants, because rendered before due pursuit of the effects of the principal, the absent defendant ? The appellants, being sureties, have a just claim to have the demand satisfied, if it could be so, out of the effects of the principal, if they were accessible. This is an equity springing from the relations of the codefendants, and operating between them, not against the plaintiff. It is subordinate to, and should not be permitted to control or impair the rights of the plaintiff, to whom both principal and sureties are equally bound. It justly claims the fostering care of a court of equity, and should be enforced as far as it can be without materially impairing or delaying the rights to which it is subordinate. To permit it to impair or delay those rights, would be to do certain injustice to the party holding the paramount claim, in the pursuit, perhaps a vain one, of the means of doing justice to the subordinate one. If the pursuit prove abortive, then uncompensated wrong will have been done by the postponement of the just and ascertained demand of the plaintiff; and if otherwise, the injury of this delay wdll have been inflicted on the plaintiff, and all .the benefit of the pursuit enure to others; and the chance of obtaining the means of doing justice between the defendants will have been purchased at the expense of certain injustice to the plaintiff. This would not, in my estimation, be reconcile-able with the precepts of sound reason, the principles of equity, or doctrines inculcated directly or inferentially by the decisions of this court. When relief is sought against parties holding the relation of principal and surety, this court will so far defer to the equity arising from such relation, as to protect it from the caprice of the plaintiff, and give it effect if it can be done *243without essentially derogating from the right of the plaintiff. In the case of Chamberlayne and others v. Temple, 2 Rand. 384. all the parties were, in the opinion of the court, liable to the plaintiff, but between themselves equity required a rateable contribution ; and as the materials were all in the record, to make an apportionment of the burthen according to the requirements of this equity, without materially delaying the plaintiff, the court directed such apportionment: but it is expressly adjudged that it was not justifiable to subject the plaintiff to material delay or detriment, to give effect to this equity between the defendants; and the plain inference from the case is, that the delay incident to the adjustment of the unliquidated accounts, to furnish the means of apportionment, would'not be justifiable. In the case of Dabney's adm'r et al. v. Smith's legatees, 5 Leigh 13. the personal representative of the sheriff, the administrator of his deputy who conducted the administration, and the solvent sureties of the sheriff were defendants; and a decree having been rendered against the personal representatives of the sheriff and deputy, de bonis testatoris, and the execution on that decree being returned nulla bona, a decree was, on motion, rendered against the sureties of the sheriff; the court disregarding the objection of those sureties, that in equity, for their exoneration, the demand ought to be charged on the sureties of those representatives by an account to establish a devastavit, and on the real estate of the principal and the surety of the deputy sheriff, and the plaintiffs should be put in pursuit of satisfaction from these sources, before the sureties should be subjected to the decree. The doctrine of Chamberlayne v. Temple is there recognized, and it is adjudged that in the pursuit of satisfaction from the principal or those responsible for his estate, no measure subjecting the plaintiff to material injury or delay should be required as preliminary to the decree against the sureties. In that case the decree was in the first *244instance rendered against the representative of the principal; and that course of practice is prescribed by the consideration, that if a joint decree were rendered against principal and sureties, the plaintiff or officer might capriciously or carelessly levy the amount from the effects of the sureties, and frustrate their equity to have the satisfaction sought from the principal, if attainable without material delay; and by the further consideration, that until a return of nulla Iona on the execution up on that decree, it did not appear of record that a devastavit had been committed which rendered the sureties chargeable. In that case, when an account became necessary for the further pursuit of satisfaction from the effects of the principal, or from responsibilities for those effects, the plaintiff was liberated from that further pursuit, and the surety was told that “ he must content himself with his right of subrogation, and take upon himself that pursuit, as the consequence of his having become sponsor for the principal.”

Under the guidance of these doctrines, I proceed to the enquiry, Was the decree in the case in judgment prematurely rendered against the sureties ?

It is not questioned that the plaintiff resorted properly to a court of equity for relief, making the absent administrator and his resident sureties parties. With these, William. Bowden is also made a party, on the suggestion that effects of the absent administrator have been put in his hands to pay debts; and though the plaintiff declines to charge positively that such effects have been placed in Bowden’s hands, Bowden is called on to say whether the fact be so or not. The answer of mrs. Bowden the executrix states that her testator, so far from being indebted to Brown, or having in his hands any estate to satisfy the plaintiff’s claim, was a creditor of Brown to a considerable amount; that Brown is still considerably indebted to her as executrix, and had given her security on'a reversionary interest in certain *245slaves which he claimed in right of his wife, and which if sold would be inadequate to pay the debt. In March 1S26, the case standing on the bill and answer in respect to this defendant, without any other evidence in regard to the effects of Brown in the hands of Bowden, and an account having been taken ascertaining the uncontested balance that was ultimately decreed to the plaintiff as her share of her husband’s estate, there was, in my opinion, no just impediment- to a decree at that time for that balance, and injustice was done the plaintiff by the failure to render the decree at that time. All the delay since has done wrong to the appellee; and I think that nothing in the record justifies a further delay, and that the decree ought to be affirmed.