1. A cestui que trust has a right to relief in equity when the trustee either refuses or neglects to assert his right at law.
2. As where a partnership debt was assigned to a deceased partner, and the residence of the survivor was unknown, so that a warrant of attorney to sue at law could not be obtained: It was held that the executor of the deceased partner could recover the debt in equity.
To this bill the defendant Blount put in a general demurrer.
STRANGE, J., at NASH, on the Spring Circuit of 1833, overruled (354) the demurrer, and upon the prayer of the defendant allowed an appeal.
GASTON, J., after stating the substance of the bill as above:
Upon the facts thus set forth, which for the present must be taken to be true, there can be little or no question but the plaintiffs are entitled to some relief. They own beneficially the money due from Blount to the firm of Drake Emerson. Emerson, the surviving partner, hath alone the legal right to collect it, and is bound to pay over the money when collected (unless there be unsatisfied creditors of the firm) to the plaintiffs. As Emerson is a naked trustee, he has no inducement of interest to take upon himself the trouble of collection, and as his residence is unknown, the plaintiffs are unable either to compel him to collect or obtain from him an authority to sue in his name. Without some aid from a court of equity the plaintiffs must lose what in justice they ought to receive, and the defendant will be permitted to keep, what in conscience he ought not to retain. But it is objected that these facts give the plaintiffs no right to general relief, but can at best furnish but a ground for the exercise of what is termed the auxiliary jurisdiction of a court of equity, by removing out of the way the specific obstacle which prevents the prosecution of a suit of law. We think this objection not well founded. The interest of the plaintiffs is one of equitable cognizance only; they cannot assert their right but in a court of equity, and they make out a case entitling them to come into such a court for the protection of their rights. If it be the duty of their trustee to collect the money, his misconduct furnishes a sufficient cause for the interference of a court of equity. If it is not his duty to make the collection personally, his absence from the State, and the inability of the plaintiffs to procure from him the necessary authority to act in his name, make out a case of (355) accident, for the relief of which such a court is the appropriate forum. And it is the general rule of a court of equity, when it has jurisdiction of the subject-matter, to do full justice to all concerned in it. When a court of equity takes cognizance of a lost bond, it exercises that jurisdiction, not by undertaking to remove the obstacle in the way of the effectual assertion of the right of the obligee in a action at law, but by decreeing what is just between the parties, compelling the one to pay and the other to indemnify. In fact, it may well be questioned whether a court of equity will ever require that to be done in a court of law which is against its established rules of proceeding to dispense with the profert of a bond or the production of a warrant of attorney. If it could do so, it ought not, because this would be to deprive the party of a legal right without providing an adequate security against a probable or possible loss by such interference with it. Here all the parties interested are properly brought before the Court, and it has in its power much more effectually to secure and protect the rights of all than could possibly be done by a court of law under any assistance which the court of equity might render.
The Court is of opinion that the demurrer was properly overruled.
PER CURIAM. Affirmed.
(356)