[Mandeville et al. vs. Riggs.]

contains no direct charge of fraud or fraudulent misapplication of the funds, by the directors or stockholders, in distinct terms. states the assignment of the property of the bank after the failure, and charges the preferences therein provided for to be fraudulent; but if not fraudulent, then that the trust found is insufficient to pay the creditors of the bank, without resort to the separate property of the stockholders. It further charges, that the plaintiff does not know whether there are other stockholders or not, than those sued, and that he has no means of ascertaining them, and calls upon the defendants for a discovery. And the prayer of the bill is, that the assignment may be decreed null and void, that the plaintiff's demand may be paid out of the joint funds as far as they will go, and then, out of the separate funds of the stockholders; and also for general relief.

In the progress of the cause some of the original defendants died, and the bill was not revived against their representatives. Some of the defendants put in their several answers, to which the general replication was filed, and against others the bill was taken pro confesso; and after several intermediate proceedings, references to, and reports by a master in order to ascertain certain facts, &c. &c., the cause was finally set down for a hearing against the defendants who had answered, and those against whom it was taken pro confesso, and a decree rendered for the plaintiff; from which the parties against whom it was made have appealed to this Court. The decree, in substance, declares that there are no funds in the hands of the assignee to pay the debt; that certain defendants (naming them) who had answered, do pay the debt to the plaintiff with interest from the first of January, 1818, with costs; that this decree be discharged as to two of the persons so charged, by their paying a less sum, equal to the amount of the notes issued by the bank, *487] while they were stockholders; and as to the other defendants, the decree is that the bill be dismissed, "it appearing to the Court that they are either not served with process to appear in the said cause, or were served with process, not charged by any evidence on the part of the plaintiff.”

Several ques

Such is a very summary statement of the case. tions have been elaborately argued at the bar, respecting the form and sufficiency of the bill, as well as the merits of the case. Upon some of these questions much diversity of opinion at present exists among the judges. But as we are all of opinion that there must be a reversal upon two points, we deem it unnecessary to examine any others. Those points are, the defect of parties, and the erroneous dismissal of the bill as to any of the defendants properly before the Court, against whom a decree might have been made.

In the first place as to the defect of parties; we do not mean to say that in cases of this nature it is necessary to bring all the stockholders before the Court, before any decree can be made. It is well known that there are cases in which a Court of equity dispenses with such a proceeding when the parties are very numerous,

[Mandeville et al. vs. Riggs.]

or unknown, and the adoption of the rule would essentially impede, if not defeat the purposes of justice. But in the present case we are of opinion that upon the death of the parties who were before the Court, the bill ought to have been revived against their personal representatives, if they could be brought before the Court, unless some good reason, such as absolute insolvency, could be assigned to justify the omission. The reason is obvious. Supposing the decree against the parties jointly to be good, those who shall pay are entitled to contribution from the other stockholders and their personal representatives. If they are not before the Court they are not bound by the decree; and consequently in a subsequent suit for contribution, they may controvert every material fact upon which the decree was founded, and put the party seeking contribution to the full proofs of them, as well as of the responsibility over of the party sued. One of the great principles, upon which Courts of equity generally require all persons who are known, and within the reach of its jurisdiction, to be made parties, is to [*488 prevent future litigation, and to take away multiplicity of suits. It is a matter of justice, as well as of convenience, that all the parties who are ultimately liable to contribution, should, when practicable, be brought before the Court, so that the equities between them may be adjusted, as well as the right of the plaintiff. There are exceptions, it is true, to the rule, but they are founded upon special considerations; such as, where a decree of contribution would be useless, or where the proceeding would defeat the jurisdiction of the Court, and the parties are not indispensable to a decree, or where the convenient administration of justice forbids it in the particular case.

This reasoning applies with far more force to the dismissal of the bill as to the defendants, who were before the Court, and who were liable to a decree as stockholders. It is a positive injury to the defendants, who are charged by the decree, not only as to their imme diate responsibility, but as to the means and proofs of contribution. The decree of dismissal, so far from aiding the other defendants, puts them to the absolute necessity of instituting a new suit for contribution, and to establish every step in its progress by plenary evidence. We know of no instance, where a joint liability has been asserted before a Court of Chancery, in which the decree has not been made against all the parties before it, who did not establish some personal discharge.

If the bill had been dismissed against those persons only, who appeared and answered, and whose liability was not proved by the evidence, there would have been no difficulty. But it is dismissed as to all the defendants, who did not answer the bill, and against whom the bill was taken as confessed, and set for a decree. Now, if these persons were duly brought before the Court, and if due proceedings were afterwards had against them, they certainly were jointly chargeable with the other defendants, upon their own default, as in cases of confession.

[Mandeville et al. vs. Riggs.]

It is no answer to this objection, that no exception was taken at the hearing for the want of proper parties. The objection we are now considering is not merely, that the proper parties were *489] not before the Court, but that the bill, being set down for a hear ing, as to those who had answered, and also as to those against whom it had been taken as confessed, the Court has decreed against a part only; when it ought to have decreed against the whole who were chargeable as stockholders. The proper parties for such a decree were before the Court, and the error was in dismissing the bill as to any of them. It has been also said, that the decree of dismissal, if an error, is only to the prejudice of the plaintiff. But this is not admitted. It was prejudicial to the rights of all the defendants, who were charged by the decree.

We are also of opinion that, assuming that the cause might be properly brought to a hearing as to the parties before the Court, the decree was erroneous in dismissing the bill as to any of the defendants named in the bill as stockholders, upon whom process was not served, if, by any proceedings, they could have been brought before the Court before a final decree. They were unknown to the plaintiff when he brought his bill, and were named therein; and the other defendants in proceeding to a hearing, cannot be understood to waive any further proceedings against them. If they were nonresidents, still the act of Congress of the 3d of May, 1802, allows proceedings to be had against non-residents by publication in the newspapers in the district; and no reason is assigned, why such a proceeding might not have been effectual to bring them before the Court in the present case. We give no opinion what would have been the case, if they had not been named in the bill, or had not appeared by the bill to have been known to the plaintiff at the time of filing it. But as they were known and named, the same reasons apply to them as to the other defendants before the Court and their personal representatives.

It was asserted at the argument, that the bill had also been dismissed as to some of the defendants, who had answered and admitted themselves liable as stockholders. Upon examining their answers, it is manifest that they were nominal stockholders only, their names having been used without their consent, or under circumstances which demonstrate that they never meant to

*490] become stockholders. And no attempt was made at the

hearing to charge them with any other proofs. As to them, therefore, the dismissal was properly decreed.

An objection was taken at the argument, as to the regularity of the appeal, it having been claimed by all the defendants against whom the decree was made; and the appeal bond having been given by Mandeville only. The objection, if it had been material in this case, ought to have been taken by way of preliminary motion to dismiss the appeal for irregularity, on account of the failure to give the proper appeal bond. But it is not material in this case, since, if Mandeville be considered the only appellant, the error of

[Mandeville et al. vs. Riggs.]

the decree is equally fatal, and consequentially reinstates the cause, discharged of that decree, as to all his codefendants.

Upon the whole, we are of opinion that the decree must be reversed, and the cause remanded to the Circuit Court with directions to have the cause reinstated, as to all the defendants as to whom the bill was taken as confessed, and dismissed at the hearing; and with directions also that the personal representatives of the parties to the bill, who died during the pendency of the suit, if they are known, and can be brought before the Court to be also made parties; and also with directions that all the other defendants named in the bill, who were not served with process, but against whom further proceedings may be had to bring them before the Court, (as to whom the bill was dismissed at the hearing,) be brought before the Court, if practicable, as parties; and that thereupon such farther proceedings be had as to justice and equity may appertain.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the district of Columbia, holden in and for the county of Alexandria, and was argued by counsel. On consideration whereof, it is the opinion of this Court, that there is error in the decree of the said Circuit Court in dismissing the bill against the defendants upon whom process was not served, and also against the defendants whom the bill was

taken pro confesso, and set down for a hearing; and also [*491

error in the said Court in not requiring the said suit to have been revived before said decree against the personal representatives of the parties thereto, who were served with process, and died during the pendency of the said suit, who were known, and might have been brought before the Court. It is therefore ordered, adjudged, and decreed by this Court, that the decree of the said Circuit Court in this cause be, and the same is hereby, reversed and annulled, and that the cause be, and the same is hereby, remanded to the said Circuit Court, with directions to cause the same to be reinstated as to the defendants aforesaid against whom the bill was taken pro confesso and set down for a hearing, and by the decree dismissed. And also with directions that the personal representatives of the defendants who died pending the suit, who are known and may be brought before the said Circuit Court, be made parties thereto, and the bill be revived as to them.

369

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*THE BANK OF HAMILTON, PLAINTIFF IN ERROR, US. THE LESSEE OF AMBROSE DUDLEY, JUN., DEFENDANT.

Proceedings for the sale of the real estate of an intestate, for the payment of debts, were commenced before the repeal of the act of the legislature of Ohio, entitled "A law for the settlement of intestates' estates." The administrators, notwithstanding the repeal, went on to sell the land, and appropriate the proceeds to the discharge of the debts of the intes tate. Held, that the sale was void.

The power of the inferior Court of a state to make an order at one term as of another, is of a character so peculiarly local, a proceeding so necessarily dependent on the judgment of the revising tribunal, that the judgment of the same is considered authority, and this Court is disposed to conform to it. [522]

That a Court of record, whose proceedings are to be proved by the record alone, should, at a subsequent term, determine that an order was made at a previous term, of which no trace could be found on its records, and that too, after the repeal of the law which gave authority to make such an order; is a proceeding of so much delicacy and danger, which is liable to so much abuse, that some of the Court question the existence of the power. [522] Where administrators, acting under the provisions of an act of assembly of the state of Ohio, were ordered by the Court, vested by the law with the power to grant such order, to sell real estate, and before the sale was made the law was repealed, the powers of the administrators to sell, terminated with the repeal of the law. [523]

The lands of an intestate descend not to the administrator, but to the heir; they vest in him, liable to the debts of his ancestor, and subject to be sold for those debts. The administrator has no estate in the land, but a power to sell under the authority of the Court of Common Pleas. This is not an independent power, to be exercised at discretion, when the exigency in his opinion may require it; but it is conferred by the Court, in a state of things prescribed by the law. The order of the Court is a pre-requisite, indispensable to the very existence of the power; and if the law which authorizes the Court to make the order be repealed, the power to sell can never come into existence. The repeal of such a law divests no vested estate, but it is the exercise of a legislative power, which every legislature possesses. The mode of subjecting the property of a debtor to the demands of a creditor, must always depend on the wisdom of the legislature. [523] The judicial department of every government is the rightful expositor of its laws, and enphatically of its supreme law. If in a case depending before any Court a legislative act shall conflict with the Constitution, it is admitted that the Court must exercise its judgment on both, and that the Constitution must control the act. The Court must determine whether a repugnancy does, or does not exist, and in making this determination must construe both instruments. That its construction of the one is authority, while its construction of the other is to be disregarded, is a proposition for which this Court can perceive no reason.

*This Court can perceive no sufficient grounds for declaring that the legislature of *493] Ohio might not repeal the law of that state by which the Court of Common Pleas was authorized to direct, in a summary way, the sale of the lands of an intestate. "Jurisdiction of all probate and testamentary matters" may be completely exercised without possessing the power to order the sale of the lands of an intestate. Such jurisdiction does not appear to be identical with, that power, or to comprehend it. [524] The occupant claimant law of Ohio, which declares that an occupying claimant shall not be turned out of possession, until he shall be paid for lasting and valuable improvements made by him, and directs the Court in a suit at law, to appoint commissioners to value the same; is repugnant to the seventh amendment of the Constitution of the United States, which declares that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." The compensation for improvements is a suit at common law, and must be submitted to a jury. [525] Admitting that the legislature of Ohio can give an occupant claimant a right to the value of his improvements, and authorize him to retain possession of the land he has improved, until he shall have received that value; and assuming that they may annex conditions