#### John H. Drake, *et. al.*v. Henry Blount, *et. al.*

A *ceslui que trust,*has a right to relief in Equity, when the trustee either refuses or neglects to assert his right at law

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 hold that the executor of the deceased partner could recover the debt in Equity.

This bill was filed by *J. II. Drake*and *J. J. Wiliams*executors of *Nicholas J. Brake*deceased against *Hennj Blount,*and *J. Emerson,*and set forth in substance that the defendant *Emerson,and*the deceased *N.J.Drake*had been concerned together in the practice of medicine as copart-ners under an agreement that *Emerson*should receive otic fourth of the profits,, and his copartner the other three, fourths; that the defendant *Blount*became indebted to. the firm, that the firm was dissolved, and that on its dissolution *Emerson*received his share of the profits, left this State and removed to some place which the plaintiffs cannot find out. The hill further ailedgod that *Nicholas Drake*was dead, and the plaintiffs had been duly appointed and have qualified as his executors, that among the valuable papers of their testator, they found the account of *Drake*& *Emerson*against *Blount row A*avered their belief that this account was just,and that in the final settlement between the copartners the same had been allotted to their testator as his exclusive property. The hill also set forth tiiat two attempts - had been made by the plaintiffs to recover the amount of this account,by a suit at law in the name of *Emerson,*the surviving partner, but that they had been nonsuited for the want of a warrant of attorney from *Emerson*to sue in his behalf. The plaintiffs further charged that they had offered to indemnify *Blount*upon paying the account, against the claims *of Emerson,*which offer had been rejected, and that finding all efforts to obtain payment by amicable means unavailing, and being unable to proceed at law in the name of Emerson,they prayed the aid of the Court of Equity to compel a discovery from *Blount,and*to decree the payment of what shall be found due, and for general relief.

*354To this bill the defendant *Blount*put in a general demurrer.

IIis Honor Judge Strange at Nash, on the Spring circuit of 1833, overruled the demurrer, and upon the prayer of the defendant allowed an appeal.

*Badger*for the defendant.

*B. F. Moore*for the plaintiff..

Gaston, Judge.

After stating the substance of the lull as above, proceeded as follows : — ijpon 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 itver the money when collected, unless there be unsatisfied creditors of the firm,to the plaintiffs. As *Emerson*is a naked trustee, lie has no inducement of interest to take upon himself the trouble of collection, and as his residence is unknown, the plaintiffs arc 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 eome into such a Court for tiie protection of their rights, if it be the duty of their trustee to collect the money, bis 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 *355State, and the. inability of the plaintiffs to procure from him the necessary authority to act in his name, make out a case of 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 h,as 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 an action at law, but by decreeing Avhat 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 pro, fert of a bond, or the production of a w'arrant 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 aprobable or possible loss, by such interference with it. Here all the parties interested are properly brought before the Court, and it has it 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, and that it be so certified to the Court below.

Per Curiam. — Decree aitirmed.