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Decisions of the Superior Courts of New South Wales, 1788-1899

Perkins v. Macdonald and wife, and Jones [1834] NSWSupC 62

succession - equity procedure

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 1 June 1834

Source: Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3278, vol. 95

[p. 181] Dowling J.

I have thus full stated the arguments on both sides.[1 ]  Since the argument, the Judges who heard the case, have conferred with his Honor the Chief Justice, who upon full consideration concurs with them in thinking that the pleas are insufficient.

With respect to the Deft Jones, the Bill seems to charge him only for his own actions and doings as the attorney of the intestate, and prays that he may be decreed to account for such monies & as have come into his own hands whilst he acted solely & separately as attorney.  Now his plea of non joinder of parties, is to the whole bill, whereas it ought to be only to so much of it as was joint.  Indeed the bill itself charges no joint liability in Jones.  He is at all events liable to account for his own outings and doings.  It may be that the personal representatives of Mr. Riley the other separate attorney who acted alone during the period that Mr. Jones was in England [p. 182] is a proper party to the Bill, but it does not therefore follow that he is a necessary party.  Nothing is shewn by Jones plea that Riley's representative is a necessary party.  Non constat, that Riley in his life time may have accounted, and that he or his representative is in no way liable to be charged.  The plea shews no joint acting with Riley, or that Riley's liability can in any way affect or prejudice the Deft Jones in the obligation cast upon him to account for his own separate actings & doings.  It is a settled rule both in law & Equity that one deft may be primarily liable to the Plf. in an obligation joint & several for the whole damage, and be sued alone, although there may be a point liability with others, - leaving to him his remedy ours against his co-obligers for contribution.  Without relying upon that principle however it is sufficient here to say, that Mr. Jones has not shewn by his plea of a joint liability with Riley or his representatives, and therefore his plea of non joinder cannot avail [p. 183] him.  A perfect decree may be made against him separately, and although it might be convenient to join the other attorney or his representative, yet we see no necessity made out for such joinder.  To dismiss the Bill on that ground might be productive of great delay & injustice, and have the affect of forcing the plf to, resort to perhaps a barren remedy, against the personal representative of Riley.  It is scarcely necessary to cite authorities in support of the ground on which the Court over-rules these pleas.  In Nuffords Equity pleading 133, the principle of the Courts of Equity in requiring all necessary parties to a suit, is fully stated.  The argument for the Defts in the present case is founded upon [p. 184] the supposition that because it might be convenient to join Riley's representatives, therefore it is necessary.  That consequence, however, by no means follows from the premises.  The present case is some what analogous to the case of joint & several obligers, in which case the rule is not invariable of requiring all the co-obligors to be parties.  In the case of Cockburn v. Thompson 16 Ves. Jr. - 325.  The Lord Chancellor very concisely & neatly states the rule of pleading in like cases.  He says ``The question is, whether a plea, that several persons are not parties is a good ban to a bill for a discovery & relief.  Where on the face of the bill it appears that there are not sufficient parties, that is a proceed of demurrer: where the defect of parties does not appear on the bill, that may be the subject of a plea; and the question whether it is sufficient, must depend upon the Bill & the plea taken together.-  "Now here, taking the [p. 185] bill and the plea together, it is clear that as Jones is sought to be made liable only for his own actings & doings, & as he has not shewn by his plea, a joint liability, there is no necessity for making Riley's representative parties to this suit.  The chancellor goes on ``The strict rule is that all persons, materially interested in the subject of the suit, however numerous, ought to be parties, that there may be a complete decree between all parties, having material interests, but that being a general rule, established for the convenient administration of justice, must not be adhered to in cases, to which consistently, with practical convenience it is incapable of application."  He then cites several well known exceptions.  The principle point decided in Cockburn v. Thompson was that although the strict rule is that all persons, materially interested, [p. 186] must be parties, yet it may be dispensed with, where it is impracticable, or very inconvenient; as in the case of a very numerous association in a joint concern; in effect a partnership." - The reasoning of the Ld chancellor in Collins v. Griffith 2 Pr Wms 314, is also strongly applicable in principle to the present case.  In giving judgment he says ``this appears to have been a bond, as well several as joint; & as the obligers may sue it severally at law, so may he also in Equity; if it were not so, there would be no difference in equity betwixt a joint bond, & one joint & several; & if any of the obligors have paid all or part, the obliger who is sued, on his representation, must bring a bill & have it allowed, & it must also lie upon him to compel the other obligers to contribute towards payment of [p. 187] the debt; the creditor lent his money upon terms to have a security upon which he might sue the obligers severally if he thought fit, and indeed if it were otherwise, that which was intended to strengthen the security, would tend to hurt it extremely, for I might not be able to find them all out, & by the same reason that all the obligors are to be sued, if any are dead, their heirs as well as Exors are to be made parties, & then, as it would be difficult to commence the suit, so the suit when commenced, would be subject to continual abatements, which would be a great difficulty on an honest creditor, who has fairly lent his money." - Applying this doctrine to the present case, the deft Jones, is liable & his own several citings without joining the other atty [sic] or his representatives.  There is however [p. 188] an old case in Precedents in Chancery Cowslad v. Cely p. 83.  Almost in point with the present case, and which has in subsequent cases been cited with approbation.  The plf being a residuary legatee, brought his bill agt. the deft, who was one of the exors (without his coexecutor) to have an a/c of his own receipts & payments.  The deft insisted at the hearing, that his co-exor ought to be made a party; and that though a bill might be allowed only for necessity, & that it was otherwise in case of Exors.  But the Lord Chancellor said ``the cause should go on, & if upon the a/c anything appear difficult, the Court will take care of it.  the reason is the same here, as in case of joint factors; & the running out of process in this case, is purely matter of form, & I doubt whr a foreigner can be served with a subpoena in a foreign country:--

[p. 189] So here, if upon the amount rendered by Jones, anything shall appear difficult, the Court will take care of it, and prevent any injustice towards him by our decree.-

If appears to us on the whole, that the complainant is entitled to the relief he prays, notwithstanding any thing shewn upon the plea, & therefore the Defts must fully answer.

As to the plea of the other Defts Macdonald & wife, that is not sustainable in any account; for they have shewn no reason whatever, why Riley's representatives should be joined.



[1 ] The arguments are at the same reference, pp 171-181.

Published by the Division of Law, Macquarie University