Hays v. Miles , 9 G. & J. 193 ( 1837 )

Archer, Judge,

delivered the opinion of the court.

The petitioner alleging himself to be a creditor of Elizabeth Jarboe, one of the heirs at law of John Benson, whose estate was sought to be sold by the complainants, appears to us to have presented a prima facie case, for the interposition of a court of equity, and to have presented it in a competent form.

Upon the establishment of his claim, we could see no possible objection to the chancellor’s assuming jurisdiction, unless he ought to have sought relief by an original bill instead of a petition. The appellant has prayed a subpoena against John Jarboe, who was not a party to the proceedings in which the petition was filed, nor does it appear that he was a necessary party, either to the bill or petition; for it is not apparent that he was entitled to be considered as a tenant by the courtesy, and if he was not, he had no interest in either controversy, and the petitioner might have dismissed the petition as to him, and proceeded against the other persons interested, for whom he sought an answer. But if he ought to have been a party to the original bill, it could not be objected, that he had made him a party to the petition, as in that case he might have had an interest in resisting the claim.

A petition .may not in all cases be the proper course to reach a fund in chancery: as where new parties are to be made, not necessary to have been .made to the original bill, and where the investigation may involve inquiries calculated, by protracting the cause, to delay other parties, not having an interest in such controversy. But wé think it may be safely stated as a general rule, that a petition is the proper mode of affecting á fund in equity where no other parties are to be brought in to litigate the application, than such as are, or ought to have been parties to the original bill.

A decree will be signed, reversing the’decree of the chancellor, dismissing the petition of the appellant, and the cause will be remanded- to the chancellor for further proceedings.

DECREE REVERSED.