McConnell v. Gardner , 1 Morris 272 ( 1844 )

Per Curiam,

Mason, Chief Justice.

The first question arising in this case is whether there are proper parties thereto. Is the petition filed for and in behalf of McConnell, or of the church, or of both. Evidently McConnell himself is the sole complainant. It is true he sets forth that he is elder of the church but ⅛ merely discriplio personas. The petition sets forth the grievances of no person but himself—the remedy sought is his. “ In consideration whereof and inasmuch as your orator is without remedy ”—“ may it please your honor to grant unto your orator a writ of summons”—“And may your honor also grant a writ of injunction to your orator. ” These expressions we think clearly decide the character of the petition in relation to the party complainant.

That party is the mere agent of the church. It is true he describes himself also as elder, but what are his functions by virtue of that office we cannot judicially know. An agent in a case like this should certainly file the petition in the name and behalf of his principal.

It would doubtless be more convenient to allow the agent to sue in liis own name, but such a convenience can only be procured through an act of the legislature. As a general rule all the members of a voluntary association should be joined in the petition, but to prevent the inconvenience and delay which such a requirement would occasion, where the members are numerous, courts of equity have of late countenanced the mode of a part commencing proceedings in behalf of all. Bui the petition in such a case should set forth facts to justify that course.

In the present case it does not appear that the number of associated members is so great as to create inconvenience in having all their names joined. Nor is the proceeding instituted by McConnell in behalf of the association, but for himself alone, although it would be reasonable to infer that his success would redound to the exclusive benefit of the whole association. That is a matter, however, which should not be left to inference.

But it is said that McConnell has a personal interest in this matter,, having signed the bond to the territory in pursuance of the statute. So have the other two securities in that bond. Can either of them therefore bring suit in his own name ? No ; the petition should have been filed in the name of the Presbyterian Church. In the absence of an act of incorporation it should have set forth the names of all the members of the association, or it should have been brought by some of the members for and in behalf of all.

It was also contended in the argument that the statute directed the deed to be made out and delivered to the agent, and that therefore the intention must have been to vest the agent with the right to sue in this manner. This is clearly a non sequilur. The deed is to be given to the church, but to be delivered into the hands of its agent. The business is to be transacted by the agent it is true, but it must be done in the name and for the benefit of the principal.

We think then that McConnell has shown no such interest in himself as to justify him in seeking a remedy in his own name; that therefore as between the present parties their is no equity in the bill, and that the decree of the court below dismissing the same, was correct for that reason alone. It will therefore be unnecessary to consider the other points made in this case.

Judgment affirmed..