The Hawaiian gazette., 1874-12-30

ing who may answer general description, might
greatly cmbarrass the due execution Of the trust,
Courts Of Equity viii dispense vita all the credit
ors and others interested 10 the trust being made
direct parties And Il viii be sufficient IL the bill
is brought to enforce the due execution OF the trust
that 1t should DC brought on behalf Of all interest
cd Burrin assignments, chap. 81, is TO the same
effect
The cases whence these text writers deduee this
doctrine, are wakeman Va Grover, Paige Oh. r.
%; Bryant and Russell, % Pick, sos; Houghton
vs. Davis, % Ne. IS
Where the creditor Is not seeking to enforce the
trust, but Is acting in hostility to the assignment
seeking to avoid It on the ground Of fraud or other
negay It is not necessary that all creditors should
be made parties for in this class Of cases the as
slguec himself Sufficiently represents the other
ercditors wakcmsn rs. Grover, above cited, and
Rigs We. Murray Johns Oh. 565.
Counsel for Plaintiff contends that Slnoway Va.
Columbia Ins. Co, 5 Gray, 100; Moody vs. Cay. Is
Gray, 4S7; Barry Va Abbot ct al, 100 Mass, SOC,
are authorities that creditor may Institute such
suit for himself alone aud that Il is not necessary to
be brought for himself aud all other creditors
But these cases are merely the Judicial cousirnc-
ton Of Mass Statutes Of 1851, c SOC, and 1855. c.
Court shall have jurisdiction IN equity, upon bin
by any creditor, to reach aud apply in payment Of
debt &c, &C." aru held to give the rght to any
person to bring creditors bn' by himself alone
In the State OF Massachusetts before the enact,
ment of this statute Of 1851, IL was held that when
creditor "seeks to carry Into effect an assignment
In trust for the benefit Of creditors and to obtnn
his proportion of the trust fund, no IL bound 10
make all the creditors parties. Or some Of the
creditors may sue Ia behalf Of themselves, and Tie
other creditors who may come In aud obtain salts
faction OF their demands equally with the paiHtias
In the suit"
In this case wilde, J. says. "This form Of pro
ceeding, while 1t prevents delay, and tho mutIpli
city Of suits which arc never encouraged furnishes
the Court at once with the means OF administering
equal justice to all parties interested. Bryant vs.
Russell, % Pick, sos
The case Of Houghton vs. Davis, above cited,
gives ss a reason why all creditors should be made
parties that In such cases, each creditor Is TO be
paid pro rata and the rights Of all creditors viii be
affected by decree which may lessen or eniargethe
number Of creditors and the amount Of debts on
which dividend may be made The proportion Of
one creditor cannot be determined aud extracted
from the common fund without deciding upon the
proportion that would be payable to each Of the
others.
The Court Is not in a position to make decree
awarding to the plaintiff certain per eentage on
his claim without ascertaining what the claims
Of other creditors whose positions must be identc
al with the plaintiffs II be Is entitled 10 have this
trust enforced; they therefore necessary parties
deem allegation like the one set forth In the
demurrer necessary in bill Of this Kind, but, as
this defect is not fatal, will permit such amend
ment to be made payment of costs.
motion to amend may be made or the bill dis
missed
A. s. Hartwell for Piaintifr
R. Il. Stanley for Defendants.
A. FRANCIS JuDD
Justice Of the Supreme Court
Honolulu, Dec. a. 1874