
    Henry F. Farley and others v. Thompson Farley.
    1826.
    
      Columbia.
    
    Equity jurisdiction.
    The complainants, who were the heirs at law of Archer Farley, filed their bill in this case to recover ofthe de-about twenty negroes, naming them, and their 'ssue> as the stock and increase of certain negroes which were alleged to have been conveyed by a bill of sale g,om Mary Farley and James Watkins to Archer Farley, dated the 23d of May 1792, and loaned by Archer to her during her life time, on the security of a bond taken from her of the same date for redelivery of the property at her death. And secondly, should they fail in establishing their claim under the bill of sale, they claimed their father’s share of these negroes as being the property of Mary Farley.
    
    unless*they take out ad-ministiatmn.
    The defendant, being particularly interrogated as to the execution of the bill of sale and bond, denied in his answer any knowledge thereof, and said he did not believe they were executed; because, first, he doubted the genuineness of the signatures; and secondly, that he never heard of any such transaction, although he was living in the family with his mother and brother at the time; and thirdly, because in the year 1794 he and his brother Archer, by the consent of their mother, made a division of the property belonging to the estate of their father, Forest Farley, which remained in their hands, and in the hands of their mother; and upon that division these negroes were allotted to him. That a few years afterwards ,he removed to this state with his mother, bringing these negroes with him as his own property, and had always since considered and used them as his own, never hearing of any claim to the contrary until within a short time before the filing of the present bill. By way of suggestion in his answer he objected to the jurisdiction of the Court of Equity, because the complainants could have ample remedy in a Court of law. The names of the negroes were stated in the bill, and the answer stated that there were no others.
    The case was opened for trial before his Honour Chancellor Thompson in June 1823, and when the evidence was nearly closed his Honour ordered the case to be sent to the Court of Law, upon an issue to try, first, the validity of the bill of sale and bond; and secondly, whether the negroes in question were the property of Mary Farley, deceased; with an order that the bill, answer, and the examination of the different witnesses by commission, should be read in evidence on the trial.
    The issue was tried before Judge Gaillaed, on the western circuit, Jipril term, 1825. A great deal of evidence was introduced on both sides. His Honour left the case entirely to the jury. They found the following verdict. “We find that the bill of sale and bond in the within issue mentioned were duly executed, and are valid, and that the negroes in question are the property of Archer Farley, deceased.” This verdict was returned to the Court of Equity in June term 1825, Chancellor Thompson presiding, who decreed in favour of the complainants. From which the defendant appealed, and made the following points ; to reverse the decree of the Chancellor, and to decree for the defendant on the grounds,
    
      First. That the evidence taken in the case entitled the defendant to a decree, notwithstanding the verdict of the jury.
    
      Second. That the Court of Equity had not jurisdiction of the matter, inasmuch as the complainants would have adequate remedy in a Court of Common Law.
    
      Third. That under the peculiar circumstances of this case the defendant ought not to be made liable for the hire of the negroes or the costs of the suit.
    There were other grounds taken for a new trial of the issue at law, which it is unnecessary to mention.
    
      P. Fanou, for the defendants.
    The complainants have adequate remedy at law, by an action of detinue, or trover. There is nothing peculiar in the circumstances of this case to give jurisdiction. No equity is made out. None for the delivery of the specific chattels. The ordinary damages at law would fully compensate the complainant, who has not alleged in his bill any affection, or particular circumstances, that would induce this Court to deliver these specific negroes. They were not favoürite house or body servants, which would entitle them to this protection of the Court. There is nothing of honour or affection existing between master and servant in this case, or of irreparable injury which calls for the arm of this Court. It is the ordinary case of trover and conversion of the most ordinary and common property in the country. There is another objection' equally fatal to the bill. The administrator of Archer Farley, and not the complainants, ought to have sued. None but the legal representative of the deceased can sue for the personal estate. This can not be said to be a case of partition, for then all persons interested should have been made parties. There was administration taken out in this case, and the administrator alone could sue for this property.
    
      Irby, contra.
    The jurisdiction of the Courts of Equity, in cases like this, has never been doubted. The late Court of Appeals in Equity uniformly sustained the jurisdiction in such cases. To prevent a multiplicity of suits where the complainant has a claim against the defendant as executor de son tort, he may join another claim, which of itself might not have been within the jurisdiction. It was too late at this stage of the proceedings to make a question of jurisdiction; it was decided against the defendant by the Chancellor before whom the case was first tried.
    
      Per Curiam. We doubt if any appeal could have been taken up from such a decision. It was interlocutory.
    
      Irby. The case of Wilson v. Cheshire, (ante, p. 233) decided in January 1826, is decisive as to the question of jurisdiction. The jurisdiction should have been demurred to, and can not be questioned on the hearing, except where the want of jurisdiction is obvious. In such cases the exception might be taken at any stage. The Court of Equity maintained a similar case in Williams v. Maxwell, which came up from Laurens in May 1824, and decided by the late Appeal Court in Equity. That was a bill brought by the children of Maxwell, and the objection was made to the jurisdiction, on the grounds that the administrator only could sue, and that there was adequate remedy at law. This defendant should have pleaded or demurred to the jurisdiction.
    
      O’Neall, same side.
    None but the administrator-can sue at law; but it is different in this Court. He will have to account to these complainants, as the administrator, here; and the complainants swear that the estate has been settled; and there can be no doubt that the complainants have the equitable right; if so, that alone gives jurisdiction. That he has funds to pay debts is the only reason, in this Court, why the administrator should sue. At law, the legal right to sue *s necessai7 to be shewn; but not here. It is not necessary to join a trustee, where he has completed his trust, when the cestui que trust has a claim against some third person. The administrator in Virginia could not sue here. In Williams v. Maxwell the heirs were suffered to call an administrator to account; although there was an administrator of their father’s estate, yet the Court supported the bill.
    Could this decree be pleaded in bar to an action at law by the administrator *? It could: for shewing the estate to have been settled would satisfy the administrator, that if he got a judgment at law, the Court of Equity would enjoin him, the property having been properly distributed. So soon as the Court at Law saw that the decree of the Court of Equity had properly settled the matter, their judgment would be held conclusive.
    As to the sufficiency of parties, he cited Clifton v. Haig’s Ex. 4 Desaus. Rep. 343. It is sufficient to have the parties necessary only to a fair settlement of the claims of the parties. Suppose this had been a suit against the administrator, would not the Court support the jurisdiction 1 Where is the difference then % The defendant here is an executor de son tort of the complainants’ father. The slightest intermeddling makes a party executor de son tort; and this ground must give jurisdiction.
    As to jurisdiction generally, the bill, in relation to the bond, was in the nature of a specific performance: It claimed an equitable adjustment under that contract, not attainable, at law.
    
      Mary Farley came into possession under a contract with the complainants’ ancestor, under whom they claim; and her possession is such as gives jurisdiction, when she claims the property adversely to such contract. The bill calls for a discovery of the negroes. That gives jurisdiction.
    This application presents the case in two points of view. They claim the negroes as the property of their int- state, and also as the property of their mother, whose will was not proved by the defendant until after this suit was brought on: and then the complainants disputed it on the ground of fraud; hence the order of the Court, that it should be contested before the Ordinary. The defendant administered on the will; and suing as administrator, it gives jurisdiction.
    It is not, in every case, that the question of jurisdiction can be made at any stage of the proceeding. It can not be so allowed where the question of jurisdiction must have been as evident on putting in the answer as at any other time.
    The chancellor ordered the issue to inform his conscience ; and upon receiving the verdict, found no light to change his mind. It was then decided by a law Court.
    After an issue at law, the chancellor will not turn the party out of Court for want of jurisdiction. 2 Vern. 503. In Taylor v. Mayrant, 4 Desaus. Rep. the Court entertained jurisdiction; and in that case they took part of the verdict found on the issue at law, and, rejecting the rest, granted relief. 2 Madd. Cha. 363.
    
      W. R. Davis. Want of jurisdiction need not be pleaded. , It is denied in the answer, in the way of a plea. That is sufficient. Want of jurisdiction was never supported in the old Court of Equity. It was. the cause of its abolition. It was a fruitless labour to object to jurisdiction before them; that was the reason, why it was not more warmly urged then.
    If the object of the complainants was not to avoid a mult'plicity of suits, why did they not sue every body concerned 1 It is said jurisdiction should be supported, because there is a will in question ; and that defendant is administrator and executor de son tort to the father’s estate: but does that prove that an action of trover might not lie %
    
    Why were not letters of administration taken out in this state 1 Their neglect to do so cannot give jurisdiction. The objection that defendant was as much bound to take out administration as complainants cannot alter the question. In Clifton v. Haig's Ex. the Court only determined that they will decide when the parties are present who really have a claim, and will not delay a cause to make parties who are only concerned pro forma, or rather nominally.
    As for a discovery of the negroes, it might as well be calléd for in a case of assault and battery.
    As to jurisdiction for partition it cannot be supported; for all the persons interested in the estates in question are not parties. The greatest number are left out.
    It is said we have been at law. This is denied. It was not a law trial. It was to be sure before twelve men. Chancery cannot deputize another Court. It is sent to law for investigation. Paley says a ministerial power may be deputed, but not a case, where judgment is required. Now here the law Judge has made no report back to the Chancellor. Then there is no exercise of the Chancellor’s judgment, if he reviews the verdict at law, without knowing the facts upon which the jury found their verdict. The jury could not report the evi-. dence.. His Honour Judge Gaillard did not. He did not charge the jury, nor did he recapitulate or comment on the evidence. How could the Chancellor know that the case was doubtful, as decided by the jury, unless the evidence had been reported to him. In the case quoted from Vernon no question was made as to the jurisdiction. '
    May 1826.
    With great reluctance misses'aMi3" for want of jurisdiction, where the taken an «early the protracted miSation-
    
      O’JYeall. In England, specific performance has never been decreed of personal property; and they own no slaves. The rule of reason is changed in this country. The Court will order a specific chattel to be delivered in some cases. The party here can not be compensated at law; for a recovery on the bond would be in Virginia currency. 1 Johns. Cha. Rep. 166.
    
      
       The Reporter has examined that decree as it appears on the Register’s book. The children did file the hill and obtained a decree, but no objection appears to have been taken to the jurisdiction.
    
   Curia, per

Colcock, J.

When there has been much and protracted litigation, and the cause is on the eve of a termination, and the question of jurisdiction is for the first time made, it is with great reluctance that the Court will dismiss a bill. But when the question is made at . the commencement oi the suit, and urged at all its vanous stages, the reluctance is much diminished; for under such circumstances it is the duty of the complainant thoroughly to investigate the subject, and actually to ascertain the ground on which he stands. The complainants claim as the representatives of Archer Farley their father, and at the conclusion of the bill, in a very brief manner by way of prayer, urge that if the property should be found not to have belonged to their father, then it must be considered as their grand mother’s, and in that case they would ask for distribution of it, and claim as her representatives^ Now, with the. same propriety they may have carried back their claim through two or more generations, and thus have opened an investigation of the title to this property for the last century. Nor is this all. Those through whom or under whom they claim, or may have claimed, may have been in debt, and may have left other representatives beside them-geives< .Now, what, a door for endless litigation would °Pened to say, that each creditor or each representative might come into Court to claim his share of the egtate 0f an intestate. To avoid all these difficulties the law has said, that when one dies intestate administration of his estate shall be granted, and it has settled the order in which the rights of those claiming administration shall be determined.

No person, though next of kin, can sue at law or equity for the personal property of an intestate, unless he take out administration.

None but the adminis.trator or executor of' a deceased person can call upon, a third person to account for any thing due the’ deceased

If an application is made to a Court for distribution it must be through an administrator or executor. In Cooper’s Equity Pleadings, 35, it is said, that an executor before probate may file his bill, and it is sufficient if he afterwards takes out probate at any time before hearing. Yet, in a bill for an account of the personal estate of J. S. though the person who has a right to administer to J. S. is a party, that is not sufficient without administration actually taken out; and this rule is well supported by the case of Humphries v. Humphries, 3 P. Wms, 349. Colonel Lancashire gave £10,000 to his daughter, arid the same sum to his wife. The complainant married the daughter, and the defendant the widow of Colonel Lancashire. . The brother of Colonel Lancashire and his wife were left executors. Both died, and the bill was filed by the son against his father for an account of the estate of Colonel Lancashire. The complainant’s wife was of course the person entitled to administration on her father’s estate. Yet the Chancellor says, there can be no account taken of the personal estate of Colonel Lancashire without making his executor or administrator a party to the bill. For aught appears to the contrary, there may be debts due from Colonel Lancashire ■which may take up part of the assets, and therefore the administrator of the Colonel must be made a party, else no proper accpunt can be taken ; ándjif any account should in fact be taken it may all be overhauled again when such administration shall be taken out.

This ground is so conclusive, that it would be unnecessary to say any more on the argument made to the jurisdiction of the Court, did we not look to the further prosecution of the case by the parties.

In support of the jurisdiction of the Court it is said, ’

1. That there is no adequate remedy at law.

2. That the defendant ought to be considered as executor de son tort, and consequently accountable in the Court of Equity. And

3. That this is a bill for a specific performance.

It is urged, that the remedy at law would not be complete, because the bond given for the delivery of the property is in the penalty of only £2,000 currency, which would not cover the value of the property; and that an action of trover or detinue would only eventuate in damages ; and that in the mean time the property might be carried off, and the complainants have to look to an insolvent person for the damages.

As to the bond. Upon an examination of it, it appears to be given for £2,000 Virginia money, by Mary Farley alone, to Archer Farley. Whether that sum would be sufficient to cover the value of the property or not is not an important inquiry, for no suit can be maintained on that bond against the defendant or. any other person. Mary Farley alone was bound, and the obligation died with her.

The action of trover has been used for many years, and although in some instances it may not have proved an effectual remedy, it is believed, that it may have proceeded in a great measure from the negligence of those who have used it. It does not enable one to recover the specific article, nor indeed will an action of detinue always effect the object. Yet the same may be said of a bill in chancery, unless process be obtained to restrain the party in possession from removing it without the jurisdiction of the Court. And when an action at law is brought an order for bail may be obtainedand perhaps if this did not afford sufficient security, upon a proper case being made out, the auxiliary aid of the Court of Equity might be obtained. But in ordinary cases, and in this case for aught that appears to the Court, the remedy by an action of trover would be as adequate as it unquestionably is the plain remedy to which the complainants, after administering, should have resorted. Under this head of the argument it was urged, that even where there is a remedy at law, if it be difficult, equity will maintain jurisdiction ; and this, as a general position, is admitted, though the cases which come within it are of rare occurrence and peculiar character. The case before us, however, appears, not only from the circumstances of its having been sent to law, but from all its circumstances, to be one which can be better investigated in a Court of Law than by a Court of Equity.

Where a parly can have complete remedy by an action of detinue or trover for personal property such as slaves, and equity will not entertain jurisdiction, to obtain its aid the complainant must make out a case proper for its interposition.

The defendant, making himself executor de son tort, will not give jurisdiction, where there is remedy at law.

It seems, in ■ some particular cases, equity has decreed specific performance of agreements in relation to personal property; but never against one not a party or privy to such agreement.

On the second ground, that the defendant was executor de son tort. If he had been guilty of such intermed-ling as would .have made him an executor de son tort, its effect would have been to give a common law jurisdiction, for a trespass would certainly not be the foundation of equity jurisdiction. I am aware, however, that there are many cases where a Court of Equity will proceed against one who has intermeddled, although he is not a legal representative; but it must be in a case where there is no remedy at law.

On the third ground that this is a bill for specific performance. It is granted that the Court of Equity have decreed the specific performance of an agreement which related to personal property; as in the cases cited in 1 Mad. Cha. Rep. 403. Buxton v. Lister, 3 Atk. 384. But never against one who was not a party to the agreement or a legal representátive of such party. And it is also admitted that it seems to constitute a very peculiar part of equity jurisdiction, in some cases of anomalous character, to decree the delivery of a specific article. But so rare are those cases that I have been able to find but four ; and the case before us could not by the most strained conceit be brought within the rule of those cases. They are for the recovery of articles which, from some peculiar causes, are held in such estimation by the owners, that no damages which could be obtained from a jury would be an adequate compensation for the loss of them; as in the case of Fells v. Read, 3 Ves. 70, which was for a silver tobacco box, inclosed in two large silver cases, adorned with engravings, belonging to a society, and used in a particular manner or on particular occasions by them, in which case the Chancellor speaks of the Pusey horn, and patera of the Duke of Somerset, as articles of like character; or, as in the case of Lloyd v. Laring, which was a bill to recover the jewels and dresses, &c. of a chapter of freemasons, 6 Ves. 773; or the case of Lowther v. Lowther, 13 Ves. 95, for a picture of Titian's, worth £5000, for which an ordinary jury could not perhaps have been induced to give as many pence.

In some cases' of a peculiar character equity will decree a delivery of a specific chattel.

If a hill for discovery, it must be distinctly, so, and call for something which is not in the complainant’s power to set out in his bill.'

Where the complainant calls for a discovery of certain slaves, naming them, and their increase, if defendant answers that there are none but such whose names the bill mentions, the Court will send complainant to law.

And lastly, the complainants’ counsel contend that the bill should not be dismissed for want of jurisdiction, because where the Court has obtained jurisdiction on one ground, it will retain it for all other purposes, and that this is a bill for discovery and for an account of Mary Farley's property. If it be a bill of discovery the object has been very irregularly and unskilfully pursued; for I can observe no fact, which the defendant is called on to discover, which is not stated in the bill. As to the negroes, their names are stated in the bill, and the defendant answers, correctly stated, and on all other facts of importance he denies any knowledge. If the doctrine as laid down be correct, I can not see how it can apply as to the estate of Mary Farley; for it is riot directly charged in the bill that she had any, and that which they suppose may turn out to be hers they have proved to have been Archer Farley’s. If it is meant that by charging a possible liability a bill may be sustained, it is carrying the doctrine farther than the reason of the rule could have intended', and farther than this Court can be induced to go. In the case of Rees v. Parish, (ante, p. 56) decided April 1825, the opinion of the Court was expressed on this point, and the defendant having denied that there were any issue of the slaves in a bill for discovery on that point, the bill was dismissed. Upon the whole the Court are of opinion that the motion must prevail and the bill in this case be also dismissed.

Bill dismissed.  