1844. RICHARDSON v. The bill alleged, that the Defendants Hastings and Emly, who were two of the committee, took upon themselves to act according to their own views, and upon their own individual authority, without consulting the HASTINGS. committee in general, or any meeting properly summoned and constituted, or obtaining the sanction or advice of any meeting of the committee; and that they, of their own mere will and without the concurrence or authority of the committee or any duly constituted meeting thereof, sold the lease, furniture, and other property of the club, and received the proceeds thereof, which they retained in their possession. It also alleged, that 12007. had been received by Hastings and Emly for the furniture, but that the receipt for the same had been signed by them and by Dobson, who was auditor of the accounts and one of the members of the committee. That the Defendants Hastings and Emly closed the account with the bankers of the club, and opened one in their own names with another banker, into which bank they placed, to their own account, all the funds which they had received belonging to the club. That besides these sums, Hastings and Emly had induced other members of the club to pay them their contributions. The bill alleged, that the bankers and the owner of the furniture had been paid, and that the Plaintiff and the other members of the club who subscribed for the purchase of the furniture, and (subject to their claims) all the members of the club, were the only parties interested, as cestuis que trust of the furniture or the produce thereof. The bill contained charges of misconduct on the part of the Defendants: that they had refused to acand that the parties interested in the accounts and relief thereby prayed, and on whose behalf the count: 1844. RICHARDSON บ. HASTINGS. Plaintiff was now suing, were very numerous, and that no suit to which they were all made parties could be effectually prosecuted. The bill was filed by Richardson, on behalf of himself and all other persons (except the Defendants) who, at the time of the dissolution, were members of the club, against Hastings and Emly, and it prayed an account of the monies produced by the sale of the furniture and received by the Defendants, and that what might be found due thereon might be paid to the Plaintiff, as trustee, and for the purposes mentioned in the indenture of January 1838, or otherwise that the same might be applied upon and for such purposes, under the direction of this Court. It prayed also an account of the other assets of the club received by the Defendants, which, after deducting all sums which had been properly paid or expended by them, on the account or on behalf of the club, might be paid by the Defendants into the bank of Messrs. Hopkinson & Co., to the credit and for the purposes of the club; or if this honourable Court should think meet, into the Bank of England, to the credit of this cause, or otherwise, that the same might be applied, under the direction of this Court, upon and for the purposes to which the same was properly applicable; and that an account might be taken of all such of the assets and effects of the club (if any) which remained unrealised and undisposed of, and also an account of all such debts and liabilities of the club due and remaining unsatisfied at the time of the dissolution thereof, as were unpaid and unsatisfied, and that proper directions might be given for the payment and satisfaction thereof, the Plaintiff and the other members of the club (other than the Defendants) being willing, in case the same should be necessary, to contribute rateably all such sum or sums of of money as might be necessary for such purpose; or if the assets of the club should be more than sufficient for the payment and satisfaction of the unpaid and unsatisfied debts and liabilities of the club, then that the residue thereof might be divided between the Plaintiff and the other parties who were members of the club at the dissolution thereof, or their personal representatives. The Defendants filed a general demurrer for want of equity, and for want of parties, and thereby insisting, that the other members of the committee, Stewart, the other members parties to the deed of 1838, the other subscribers to the furniture fund, and Dobson, were necessary parties. Mr. Purvis and Mr. Hubback, in support of the demurrer, argued, that the bill, in effect, sought to have the affairs of the club wound up, which could not be done, except in a suit to which all the members were made parties; Evans v. Stokes. (a) That a suit could not be instituted by one of a class on behalf of the others, unless their interests were the same, and the relief sought was in its nature beneficial to all those whom the Plaintiff undertook to represent; Gray v. Chaplin. (b) That here, the subscribers to the furniture fund were entitled to be first paid, and had manifestly an interest quite opposed to the general body of those members who had not subscribed, and which latter body ought in some way or other to be represented in the suit; Richardson v. Larpent. (c) 1844. RICHARDSON v. HASTINGS. (a) 1 Keen, 24. And see Deeks v. Stanhope, V. C. E., 21st of March and 12th July 1844. That (b) 2 S. & St. p. 272. 1844.. RICHARDSON v. HASTINGS. That the parties were not so numerous as to entitle the Plaintiff to sue on their behalf; Bainbridge v. Burton (a), where thirty-eight persons interested were required to be made parties. That Stewart was a necessary party, being a trustee of the lease; and that Dobson, who had signed the receipt for the purchase money for the furniture, and was liable for the amount, was also a necessary party to the suit. Mr. Kindersley, Mr. Turner, and Mr. Cameron, in support of the bill. The demurrer on record does not insist that all the members of the club are necessary parties, as has been argued at the bar. They are not, however, necessary parties, for the suit does not seek to have the affairs of the club finally wound up, but merely to compel the two Defendants who have received the assets of the club to account for and render them to the proper custody. If the latter part of the prayer of the bill be considered as asking a settlement of all the affairs of the club, such relief may, according to the recent authority of Wallworth v. Holt (b), be had in a suit constituted like the present, or at all events, it may be waived at the hearing, and the relief asked confined to the first part of the prayer, namely, the account of the monies received by the Defendants. It is to the common interest of all the members that this common fund should be recovered. The interests of the subscribers and nonsubscribers to the furniture fund are no more conflicting than those of a mortgagee and the general creditors of a deceased party, in which case the mortgagee may sue on behalf of (a) 2 Beav. 559. (b) 4 Myl. & Cr. 619. of himself and all other the creditors. Greenwood v. Firth (a), Skey v. Bennett. (b) Neither Stewart nor Dobson are necessary parties ; they have received no part of the assets, and are in no way accountable. The MASTER of the ROLLS. There is no doubt of the Plaintiff's equity, but I am of opinion that this bill is so framed as by its nature to be defective for want of parties; it is in vain for the Plaintiff to say that he will stop and limit the relief to that which is first prayed. The prayer of the bill is, in substance, that the affairs of this concern may be wound up, which cannot be effected unless all the questions between the parties are first settled and decided. It appearing, therefore, upon the bill, that questions may probably arise between those persons on whose behalf the bill purports to be filed, they cannot be settled in their absence. At one time, the Court would not entertain a suit between parties in relation to partnership transactions, except upon a bill to wind up the partnership. That is not now the rule of the Court, for I think, and the cases which have been referred to corroborate that view, that the Court will, as between partners, entertain a bill to settle a question which may arise between them, without proceeding to wind up the concerns and affairs of the partnership. One argument used in support of the bill is, that if it had stopped, and simply asked for the accounts against (a) 2 Hare, 241. note (b). these And see Aldridge v. Westbrook, 5 Beav. p. 193. 1844. RICHARDSON V. HASTINGS. |