Mr. Bidwell, contra. 1843. BANK OF v. POLLOCK. THE VICE-CHANCELLOR :-The objection of misjoinder of parties and that the defendants Sarah Pollock and Susan Pollock should be proceeded against separately is not well taken. The case of Fellows v. Fellows, 4 Cowen's R. 682, Sept. 12. is a decisive authority to show that, although they hold distinct moieties of the stock in controversy, they may, under such circumstances as exist here, be proceeded against jointly. Andrew Pollock is, for form sake, a proper party and the two sisters might have objected if he had not been made a defendant: on the ground, if on no other, that if they lose the stock they ought to have a decree over against him. The Mechanics' Bank are properly made defendants for the sake of the injunction and a decree directing the stock to be transferred on their books: Lloyd v. Loaring, 6 Ves. 771. I consider that Jarvis & Scrymser are not necessary parties to this suit. They have no concern in the alleged equity of the complainants to follow the stock. If they are liable to the complainants for money as upon an overdrawing by means of the checks, the complainants must pursue their remedy at law against them; and this they may or may not do as they shall think proper, whether they succeed or not in this suit in rem against the stock. If successful, the only effect will be to lessen their demand so much against Jarvis & Scrymser. Then, as to the merits between the complainants and the Misses Pollock. According to the statements in the bill, the latter have lost nothing. They are but volunteers, having paid nothing for the shares of stock in question. The former shares which they owned still belong to them. A transfer under a forged power did not pass the title from them and they have only to look after and reclaim their own property. But, still, if the complainants have no right in equity to follow the property, this court will not help them to wrest it from the hands of the defendants, although they be but nominal owners and without value paid for it. The bill shows that the money of the complainants tortiously taken from them has been applied to replace money of the National Bank which was used to pay for the purchase of the spe 1843. BANK OF บ. POLLOCK. cific shares of stock in question; and upon this it makes but a case of constructive trust in equity in favor of the complainants to have the benefit of the property, in which their money, although not directly, yet indirectly, has been invested and to which no other person, except mere volunteers, have acquired any title or interest. I consider that this case falls within the principle laid down by Mr. Justice Story in 2 Com. Eq. 503, 1258. The identity of the property is shown and traced; and, under such circumstances, it can be laid hold of by a court of equity and distinguished from the property of all other persons and handed over to the equitable and rightful owners: Thompson v. Perkins, 3 Mason, 232, and cases there cited. The demurrer must be overruled, with costs; and the defendants must answer on the usual terms. 1843. REDMOND v. WEMPLE. REDMOND V. WEMPLE and others. Where a judgment debtor filed a bill, on his own behalf only, against his Jan. 28th, 1843. Debtor and Assign CREDITOR'S bill filed against Christopher Y. Wemple and Henry W. Christie, judgment debtors and against their assignees. The assignment under which the latter acted was made the twenty-sixth day of September, one thousand eight hundred and thirty-seven. Bill filed on the first of June, one thousand eight hundred and thirty-nine, and it ment. seemed to go mainly against the conduct of the assignees; Fraud. but an amendment was made on the third of August, one Assignee. Practice; thousand eight hundred and forty-one, which went against the assignment. The debtors were permitted to act as agents for the assignees and to retain large compensation. The case came up on bill and answer, after the funds had been distributed or passed away. Mr. Eagan for the complainant. Mr. Mulock for the defendants. Bill and answer. THE VICE-CHANCELLOR :-If this bill had been filed Sept. 12. earlier and while the goods remained unsold and the proceeds not paid over, I am inclined to the opinion that the complainant might have succeeded (on filing a replication to the answer) in setting aside the assignment. But he waited a year and a half, after he had recovered his judgment before he filed his bill; and, even then, he did not attempt to impeach the assignment for fraud, but rather went against 1843. REDMOND บ. WEMPLE. the conduct of the assignees. It was not until the month of August, one thousand eight hundred and forty-one, that he amended his bill, so as to make a case for setting the assignment aside. And, in the mean time, the assigned property had all been disposed of and the proceeds paid over and distributed under the assignment. And, now, the cause is brought to a hearing on bill and answer, without a replication and without giving the defendants an opportunity of supporting their denials of fraudulent intent, by proofs. As the case now stands, there is nothing to show that the assignment is conclusively fraudulent, nor is it fraudulent per se; and as all the badges of fraud are either explained or are negatived by general denial of fraudulent intent, the case is within the principles settled in Cunningham v. Freeborn, in error, 11 Wend. 240. The worst feature of the case, as it appears to me, is that the assignors, the judgment debtors, were permitted, by the assignees, to retain, at different times, considerable sums out of the proceeds of the assigned property, on the idea of compensation for services rendered as agents of the assignees in disposing of the goods, &c.; and if the bill had been prosecuted in behalf of all the creditors of the debtors for an account of the assigned property, and with a view to make the assignees or the acting assignee liable for that money as for a misapplication or waste, it is probable the acting assignee might have been held personally liable to make it good to the creditors. But, such is not the aspect or purpose of the present bill; and no decree, to that effect, can be made upon it. The bill must be dismissed without reservation; but, from the remarks of Chief Justice Nelson, in the concluding part of his opinion in Cunningham v. Freeborn, supra, on the subject of costs, and which apply with peculiar force to the case in hand, I am disposed to leave each party to bear his and their own costs of the suit. Decree accordingly. 1843. CAMMEYER and others v. THE CORPORATION OF THE In a mixed (German and English) Congregation of a German Lutheran Church, one party cannot, on the resignation of its particular pastor, agree with another church that it may bring in its pastor and congregation as a body corporate, with its church establishment. They may invite a minister and individuals to attend and so increase their number. CAMMEYER v. GERMAN LU THERAN CHURCHES. Jan. 30 and 31, 1843. Church. AN injunction had been granted restraining the defendants, the corporation of the United German Lutheran churches in the city of New York, its officers, &c., from selling or leasing St. Matthews Church, and from disturbing or molesting the English Lutheran congregation of the said Religious church in the use thereof, and from worshipping therein in Corporalike manner as the said English congregation were in the tion. habit of using the same and worshipping therein at the time of the filing of the bill, until the further order of the court. A demurrer to the bill was pending. A petition was now presented by the defendants, the corporation. It showed (after mentioning the injunction) that the manner in which the English part of the congregation was in the habit of using the said church and worshipping therein at the filing of the bill was as follows, that is to say certain persons hired by the year, from the agent of the corporation, the use of pews and seats in the said church and regularly paid rent therefor to such agent, and such persons, denominating themselves the English congregation of the said church, attended, with or without families, on Sunday afternoons when service was performed in the English tongue by the Reverend Mr. Geissenhainer. That, at the time of filing the bill, the corporation, in all other respects than as above specified, had the absolute and exclusive use, possession and enjoyment of the church and its appurtenances; and that, at the time of the filing of the bill, the cor (a) For a full particular of this case on the merits, see 2 Sandford's V. C. Reports, 186. |