1844. THE RICHARDSON v. HASTINGS. HE demurrer in this case having been allowed (a), the Plaintiff amended his bill, and made a Mr. Welch, one of the members of the club who had neither subscribed to the furniture fund, nor executed the deed of 1838, a Defendant thereto. By the amendment, he struck out that part of the prayer which implied a winding up of the affairs of the club; and limited the prayer to an account of the monies received by the Defendants Hastings and Emly from the sale of the furniture, and that the amount due thereon might be paid to the Plaintiff as trustee of the indenture of the 27th of January 1838, "or otherwise paid as the Court might (a) Antè, p. 301. direct; " Feb. 22. There are rules of the two general Court; first, that all per sons in terested in the subject matter of the litigation ought to be parties; the second, that the Court always en deavours to do complete justice, so that the matters involved in the suit may not be left open to future litigation; but these rules are both occasionally departed from. As to the necessity of the Court's modifying its rules and adapting its forms of proceedings to the altered circumstances of society existing at the present day. A bill may be filed respecting a partnership without praying a dissolution. In a continuing partnership, if a few have an interest in a particular subject adverse to all the rest, a bill may be filed against the few, by one on behalf &c. In the case of an insolvent partnership not formally dissolved, a bill may be filed by one or more on behalf of the rest against the governing body, to have the assets collected and applied towards the payment of the debts, without seeking to ascertain the rights and liabilities of the parties as between themselves, but leaving them open to future litigation. By the rules of a club, the bankers were alone authorised to receive money on account of the club. Some of the members subscribed and purchased the furniture, which, by deed executed by the subscribers, was vested in the Plaintiff A. B., in trust to repay the amounts subscribed, and to pay the surplus to the committee for the benefit of the club. The club becoming embarrassed, was afterwards dissolved, and the committee were authorised to wind up the affairs. Two of the committee, C. and D., sold the furniture, and alone received the produce, together with other general assets of the club. A bill was filed by A. B. on behalf &c., against C. and D., and E., a nonsubscribing member, to recover the monies in the hands of C. and D., and praying that the furniture money might be paid to the Plaintiff, on the trusts of the deed, "or otherwise as the Court might direct," and that the general assets recovered might be paid to the bankers or otherwise, &c. Held, that the bill was not defective for want of parties, and that neither the other parties to the deed, nor the other members of the club, were necessary parties. 1844. RICHARDSON v. HASTINGS. direct;" and for an account of the other club monies received by Hastings and Emly, and "that what should be found due from them on taking the said account, after allowing or deducting all sums which had been properly paid or expended by them on the account, or on behalf of the said late club, might be paid by the said Defendants into the bank of Messrs. Hopkinson & Co., to the credit and for the purposes of the said club, or otherwise as the Court should direct." The Defendants Hastings and Emly again filed a demurrer to the amended bill similar to the former demurrer. Mr. Purvis and Mr. Hubback in support of the demurrer, argued, that the record remained, substantially, the same as on the occasion of the former demurrer; for the Court could not limit its interference to the recovery of the money, without proceeding to distribute it, and that for this purpose it was absolutely necessary that the conflicting rights of the different parties should be ascertained and declared. That consequently all the persons whose absence had been objected to on the former occasion were now, for the reasons formerly urged, necessary parties to the present record. That all the persons who executed the deed of 1838 were necessary parties, and that the Plaintiff could not sue on their behalf; Newton v. Lord Egmont (a); where it was held that all the persons who had executed a creditor's deed were necessary parties to a suit affecting their interests. That (a) 4 Sim. 574. That the parties were not so numerous that their presence could be dispensed with; Harrison v. Stewardson (a); where the number was twenty. Mr. Kindersley, Mr. Turner, and Mr. Cameron, contrà, insisted, that the form of the record had been so altered, that the objection raised on the former occasion had been successfully removed; that the bill limited the relief sought, to a simple restitution of certain funds of the club, improperly retained by two of its members, and sought no administration, or distribution of the funds, nor any winding up of the concern; that it was for the general benefit of all parties that the fund should be recovered and placed in the proper custody, or as the Court might direct, and therefore, that the case was in its nature and prayer similar to Hichens v. Congreve (b), where it was held, that some shareholders might file a bill on behalf &c. to obtain a restitution of funds improperly applied by directors to their own use. So in Holmes v. Henty (c) on a bill filed by two trustees on behalf &c., against some trustees of a savings bank, to make them responsible for a misapplication of the trust monies, it was even held (d), that it was unnecessary to make all the persons who concurred in the resolution for the misapplication of the trust monies parties to a suit for replacing it; but only those who actually took and misapplied the money. And that this case was governed by the decision of Lord Cottenham in Wallworth v. Holt. (e) That a bill to carry the trusts of a creditor's deed into execution might be filed on behalf of all the creditors by 1844. RICHARDSON บ. HASTINGS. 1844. RICHARDSON v. HASTINGS. by one of them only where they have all executed the deed, but are very numerous; Weld v. Bonham. (a) In Newton v. Lord Egmont the bill sought to have the priorities declared. That the Plaintiff was trustee of the produce of the furniture, and that it was unnecessary to make his cestui que trust a party to a suit for recovering it; Franco v. Franco (b), Angier v. Stannard. (c) Saville v. Tankred (d), -v. Walford (e), Richardson v. Larpent (g), Calverley v. Phelp (h), and Mitford (i) were also cited. The MASTER of the ROLLS. All cases of this kind are attended with some degree of difficulty, and the conclusion to be arrived at depends on rather nice circumstances. The arguments in support of a demurrer of this kind have generally a very strong foundation, because cases of this kind always deviate from two old and general rules of the Court; one is, that all persons interested in the subject matter of the litigation ought to be parties; the other is, that the Court endeavours to do complete justice in every case, so that the matters involved in the suit may not be left open to future litigation. Now the present bill is, to a certain extent, a departure from both these rules, because it is proposed to be prosecuted in the absence of parties interested in the suit; and it also proposes that the sums to be recovered should (a) 2 S. & St. 91. (c) 3 Myl. & K. 566. (d) 1 Ves. sen. 101. (e) 4 Russ. 372. (g) 2 Y. & C. (N. C.), 507. (h) 6 Mad. 229. (i) P. 164. should be left at their disposal if they can agree, and if not, then that they may be left for future litigation. However, exceptions to the two rules which I have stated, have at all times been sanctioned. I recollect a treatise, in which one of the chapters was headed, "In what cases necessary parties may be dispensed with." The assumption that necessity could admit of any qualification may seem to imply that exceptions to the ordinary rule were admitted with difficulty. It has however become necessary to extend the cases of exception, so as to keep pace with the progress and complications of the transactions of mankind; and every body who reads what Lord Cottenham has said on more than one occasion, must be perfectly satisfied with the justice of his observation (a), and see how necessary it is for this Court, acting always within the limits of its jurisdiction, by an application of its powers, so necessary for the administration of justice, to adapt its forms of proceeding to the altered circumstances of society in our own times, and modify its rules so as to meet the changes of circumstances under which it is, at the present day, called on to administer justice. In no class of cases has the extension of the exception been more frequent than in cases like the present. I cannot say that I entertain any doubt of the propriety of the decision which I made in Evans v. Stokes. (b) I still think that the winding up of a partnership implies a complete settlement of all the rights and liabilities as between the parties themselves; and as they may be in conflict with regard to these rights and liabilities, the partnership (a) See Mare v. Malachy, 1 Myl. & Cr. p. 579.; Taylor v. Salmon, 4 Myl. & Cr. p. 141.; Wallworth v. Holt, 4 Myl. & Cr. p. 635. (b) y Keen, 24. 1844. RICHARDSON v. HASTINGS. |