of the conrt or otherwise. but at the first term at which the cause, as a cause, coUld be tried ....
The cause cannot be trie4 as a cause, by the practice in this state, until there is an issue, and not then, unless the issue can be brought· to triaJby a notice. Although the Code of Civil Procedure requires pleadings to be within spepified times, it also authorizes the court.<; to enlarge the time, upon proper,Q&use shown, and the enlarged time is as much the statutory time as the original time of service. It has never ,been intimated that a delay by'thELremoving party to forman issue for the whole period of time authorized by the procedure of the state court for that purpose is to be deemed unreasonable. If, however, the inquiry were to be made whether the defendant has been guilty of unreasonable delay in putting the cause at issue, it would not assist the plaintiff here. It is true that if the defendant had not procured extensions of his time to answer, by stipulation, from the plaintiff, and by the order of the court, he would have been required by the rules of practice t911inswer at a time which.would have enabled the plaintiff to notice the cause for the October term, or he would have been in wa.ritbf an answer. ' But the plaintiff cannot/complain of de.lay as Unreasonable to which he consented in advance by. his own stipulation, nor is it obvious :how this court can decently assume that the defendant was not justly entitled to the time granted him by the order of the judge, whose duty it was,refuse the application if there was Dot sufficient Cause shown. The motion to remand is denied.
AdmT, and others",. OWENS, Ex'r, and others.
(Oa'rouit O()'ll,f1, 8. D, G'eorgitJ,lIJ. D; J anuaty 4,'
BILt 1l'Oll ACCOUNTING. Where' a bill in equity· praya aceount against executors, and a general settlementof the trust, all the executors are necessary
a.SAHE-DEHt1llRER FOR WAliTOFl'ARTIES.
A may object to for the ot parties; and, If such defect is 'not apparent on ,th'8 face of the bIll, the defendan' ma1 plead the matters necessary to show it. ' . ,
.. by tMOowt.)
8. SAME-PLEA' FOR WANT OF PARTIES.
, A plea for the want of
parties is a plea in bar, and goes to the whole
J. R.Sa:u88Y, for defendants.,
(]harle,.fVcpMw West, for
SPEER, 'J: This filed origina'llyby lsa:aoM: Jje Lyonand others ,against Lloyd, Julian Hartridge',and George S. Owens, as, LeviS. De Lyon. The bill was filed May 26,1873. M. De Lycln died. William E. Howth, his administmtor,was made a party complainant: ThOlnas K lloyd died, and the complainants proceeded George S. Owens, the executor, by bill of Jevivor. Julian Hartridge died testate, and Mary M. Hartridge ql;1alifiedas:his executrix. No bill of revivor was filed against Mrs. Hartridge executrix, but, on the contrary, on June 3" 1879,the late Amos T. Akerman, then of counsel for complainant, took the'following order:
"IN THE omCUIT COURT ,OF THE UNITED STA'.I,'ES, SOUTHERN DISTRICT OF GEORGIA ·
.. wmiam B. Bowtk and otkers v. (Jeorge S. Owens and other8. (In · Equity.)' "The'complainants suggest that, since the last term of this court,Julian Hartridge, one of the defendants, ,has died; and on their motion it is, ordered that hiS uatne ,be stricken from the cause. and "that ,Ute cause proceed against tile It is further ordered that thetlIne for taking testimony in liaid cal!e be extended to the first day of the next tarm. ,, ' " J O S E P H P. BRAD:l.EY, Citcuit Justice. . 1879.,"
The bill' is £mooed for discovery, account, and general relief. The cause was; set down for a hearing on the third inst., when the defendants filecUhefoUowing plea:
cmctn:T COURT OF THE UNITED STATEs' FOR THE SOUTHERN DISTRICT OF GEORGIA.
ThomasE.'Lloyd, Deceased, Defendants. "And these defendants, by leave of the court first had and obtained in this behalf. by protestation, nc>tc;o,nfeasing or acknowledging the matters and tbingsin and by the said bill and the amendments and bill of r(ilvivor set forth, alleged. and set forth to be true in such manner ,and form as the same are therein and thereby setforth, for plea thereunto say Julian Hartl'idge, one of the def(ilndants in said bill of complaint. departed this life on the eighth day of January, 1879, testate; that his last will and testament has been dUly admitted to probate in the C01,ll't of ordinary of the county of Chatham, in said Southern district of Georgia, and letters testamentary were duly issued to Mary M. Harl;ridge. as the executrix of said last will and testament, on the eleventh day of March, 1879, and ,the said Mary M. Hartridge was duly qualified as said executrix. 'fheae defendants further say that the said Julian Rartridge was!' necessary party, and. since his death, hIS personal represen,tative is 'a' necessary party in his name and stead, as fully appears from the allegations of :said bill of complaint, inasmuch as it is therein stated and charged that, all of the said defend,ants to said bill of complaint. as executors, of their te8tator, and these defendants are jointly wasted the assets and entitled to contribution from the estate of the said deceased defendant for any andalls'uiM''01!'money that ,may, under the said allegations of complainants' said bill.' 00· decreed to be paid by the said defendants; but yet tltll said com'plainantsbave not made'the said personal representative a'pa:rty:to:saidbill of complaint. AU which matters l!lIDd things these defend-
" Wimdm ' B. Bawtk, Adm'?' of'Isaac 'De Lyon et al., Oomplts., and f1eorge 8. Owens, 3ulfAi'n Harflridge, and (feorge 8. Owens, as the Ea:ecutars of
ants true, and plead sa.me to the said bill of complaint, and pray the jUdghlent of tbis hoo.otable cqurt in the premises. . .' . . .. "J. R. SAUSsY,SpliCitor for Defts. ,"Person\\lly appeared George'8. Owens, one of the defenda.nts in the above cause,. and' oil oath says that the foregoing plea is not interposed for delay, and is true in point of fact. Goo. S. OWENS. "SworA to and subscribed before me this twenty-third day of November, 1886. '.' . ' J... A. WAKEMAN, Not. Pub.., C. C. Ga. "ThEl.undersigned, solicitor for the above-named defendants,hereby certifies that, in his opinion, the foregoing plea is well founded in point of law. . ,' ' ' ' J . R. SAUSSY, Solicitor." To this plea the compJainaIltsxnadea gener81 demurrer. to be determined are: (1) Was the representative of The Julian Hartridge, co-executor with the other respondents, a necessary party?- (2) DOtls tbe action of the name of Julian Hartridge fromtbe' record, bar the suit? The quel!'ttqn,whoare a. bill in equity? has not have ·been expected with been defined with regl1rdto a. of occurrence.' It is said by Mr. practical and of no Justice stOry to oea subject of inconsiderable difficulty, in a great variety of cases. Siory, Eq. PI. 72. .".In view,of fue 'maxim that courts·,of equity delight to do justice, and not by h8.lv-6$; it is a general rule; subject to various exceptions, however, that all persons materially interested, either legally or beneficially, in the. of a to be maqe parties to it, either as they may be, so that there plaintiffs or as defendants, however all." Again,it.has will be a cOIllplet.e decree, which w,ill binl1 been said, in general, (subject to certain statutol,J': exceptions,) all persons interested in the subject-matter of a suit, wUh. respect to its object, are necessary parties to the suit. Sometimes, when there is. a class of persons all having the same interest, and the class consists of so large a number of individuals that they could not all be m'adeparties without extreme inconvenience, it is allowed to name onear more of the class to l;epresent therest,and this may be done whether parties appear as plaintiffs or defendants. Hunter, Suits Eq. 15; Fonbl. ;Eq.297. Numerous exceptions to this rule are cited. Story, Eq.Pl.72 et aeq. The bill before tbe court is framed for a general account of trust funds in the hands of trustees. Here all the trustees should be made parties. 'Story, Eq. PI. 214. Where two executors are botind, to render an,account, they should be made parties. ld. 218, and casescited. It follows, therefore, tbat the action of the complainant in striking the c-ocexecutor, Julian Hartridge, from the bill, withdrew a necessary party. Nodoubt the distinguished counsel then representing the complainant was misled by section 3444 pf the Code of Georgia, which provides: "In all cases which have been, or may be, commenced in any-of the courts of this state, at law or in equity, against two,Ol' more defendants, one or more of whom have died, or may die pending said case or cases, it shall and .may be lawful for the plaintiff or complainant to suggest said deatb of record,
and to proceed in the trial of saip.case or easel;! against the 8urvivingdefend· ant, to the extent of their respective liabilities." ' "
This establishes a rule of practice in the courts of the state; but it can have noefl'ect in the Courts of the United States, where the doctrines of equity are administered under the general chancery practice. Mandl}-ville v. Rigg8, 2 Pet. 484. The want of parties. is an ordinary equitable defense. Adan1s, Eq. 331. Though 0. plaintitrmaybe fully ,entitled to the relief he prays, and the defendant may have no claim to the protection of the court which. ought to prevent its interference, yet the defendant may object to the, bill for want of proper parties; and.if the defect is not apparent on the face of the bill, the defendant may plead the matter necessary to show it. Mitf. Eq. PI. 325. This exception maybe'also/insisted on in the answer, or at the pleading. Story, Eq. Pl.:541; I,Daniell, Ch. Pro 287. A plea fen-want of proper parties is a plea in bar, and goes to the bilf,i as well to discovery as to the relief, where relief is prayed., DlUiiell, Cli. Pro 290. For thesecreasons the demur:rer to the plea: is overruled. '
,OsnORNE and, others
BARGE and others.
(Oilrc'rltt OowH,N.D.lotiJa, O. D.' J8.i1UaryTel'D1, 188'7.)
1. 'PARTNERSHIP-ASSIGNMENT FOR BENEFITOP' CREDITORS. B. and K., partners, agreed upon an assignment, fprthe benetlt of and directed an attorney to prepare t1,J.e necessary papers, and draw up a,schedule of assets, November 6,1886. November 8th; at 8 A. Mo, the deed of aslJignmentwasexecuted in the:firmname by Bo' November 8th; at 10 Ao M., Jr., with· outtl;J.e knowledge or cpnsent of his partner, executed a chattel mortgage of full :flrJn stock to secure a note given for indebtedness of the fitm to the plaintiffs, and November 9, -1886. Held that, the having been agtaEld toby the :firm, each partner was authorized to execute the deed thereof, and the Sl'me was valid.
Held, jU'1'ther, that, the chattel mortgage not being in furtherance, of the business; neither partner had authority to execute the same without the con· sent of the ,firm, andtherefQre it was invalid.
In Equity. Bill to foreclose chattel mortgage. Exceptions to an,swer. " Marilin kWamback and Wright&: FarreU, for cow.plainants. Kamrar &: Borye and W. J. 00vU, for defendants. SHlBAS, J. The bill filed in this cause sets forth that on the eighth -day of November, 1886, the firm of Barge ,&King, being indebted to complainants in the Bum of $2,529.31 for goods sold,executed their certain protnissory note, payable, on or before 9, 1886, for the named jand 1;0 secure the payment thereof also executed a chattel