Perrine v. Perrine, the ground that it was fraudulent against each of them. And the defendant who held the title attacked had his "day in court," and an opportunity to defend as to each of them. This opportunity to defend as to each judgment is a right of which this court cannot deprive the defendant. It is not necessary, however, to express any opinion as to the merits of the present applications as tested by the rule laid down in Iauch v. de Socarras. The orders must be set aside, for two reasons. In the first place, they were made without any notice to either the complainant or defendants, and, as before observed, being orders to which the petitioners are entitled as of course, notice must be given. It is to be observed that the second amended bill, which is the one under which the cause proceeded, does not contain any statement that it is filed for the benefit of all creditors. Hence it cannot be treated as a consent on the part of the complainant for other judgment creditors to come in. In Iauch v. de Socarras the complainant did consent, in open court, that the other judgment creditors should come in as parties complainant; but the orders were stricken out because the defendant did not so consent. Hence, I repeat, notice was necessary to both complainant and to such of the defendants as hold the title attacked. The necessity of this notice is manifest when we consider that, in cases like the present, the real defendants are not the judgment debtors, but the holders of the title attacked for fraud, and this title may be judicially determined to be invalid as against the complainant, and, at the same time, to be quite valid as against other judgment creditors of the grantor. Iauch v. de Socarras, supra. And as between the grantor or settler and the depositary of the title, the proceeds of the sale belong to the holders of the title, so that those proceeds are not necessarily assets which must be applied to the payment of all the judgment creditors of the grantor or settler. The question whether other judgment creditors can participate in such surplus as remains after paying complainant, raises a distinct issue, which, in my judgment, this court has no power to determine, except after the holder of the title attacked has had an opportunity to be heard upon it, according to the rules Perrine v. Perrine. and practice of the court and the fundamental principles of justice. If, upon proper notice given, and after hearing both the complainant and the defendants, the court should be of opinion that it is a proper case to allow the petitioners to come in as parties complainant, I am of the opinion that the terms upon which they should come in should be settled by the court in the first instance. In the second place, the orders were made upon the advice of the advisory master-and, of course, without inspection by the chancellor-in direct disregard of Rule 194, which provides that after a cause has been referred to a vice-chancellor, all proceedings therein must be had before him, and hence it was not in the province of another judge to make these orders. It was for this reason that the chancellor declined to hear the present motion. In this case, as in Iauch v. de Socarras, the petitions untruly stated that the bill was filed for the benefit of the complainant and all other creditors who chose to come in and contribute to the expense of the suit. As remarked in Iauch v. de Socarras, I think this statement in a bill entirely immaterial. It can only operate as an invitation by and consent on complainant's part to other creditors to come in. It cannot alter the essential character of the bill, or dispense with the necessity of notice to the defendant whose title is attacked. The five orders will be set aside and discharged, with costs. I add "with costs" because the solicitor of the petitioners should have known what was the rule as settled in Iauch v. de Socarras, and the order admitting them was apparently produced by the untruthful statements of the petitions. I have not overlooked the circumstance that the decree heretofore made in the cause on the merits, so far as it affects Samuel E. Perrine, is appealed from. That appeal leaves undisturbed the power of the court pending the appeal to deal with the proceeds of the sale of the land mortgaged to the other son, and also to deal with the conveyances ces to the wife. The cause is only partially removed by the appeal, and hence it is unnecessary to consider the power of the court to deal with the present question if the whole cause had been removed. Leonard v. Bowne. CHARLES T. LEONARD υ. DAVID CRAIG BOWNE, GEORGE B. CLARK, GEORGE S. CLARK and MATTHIAS WOOLLEY. [Submitted July 1st, 1902. Decided July 11th, 1902. The defendant George S. Clark, being indebted to the defendant Bowne, procured the defendant George B. Clark, son of George S., to execute a bond and warrant of attorney to Bowne for the father's debt; Bowne held that security without enforcing it, and allowed his debtor, Clark, the son, to continue in business as a merchant and to become indebted to the complainant, Leonard. Later on, Clark, the son, absconded. Thereupon Leonard issued an attachment against Clark, the son, and seized his goods. Clark, the father, induced Leonard, by false representations, to withdraw his attachment, for the purpose of enabling Bowne to obtain a preference over him by entering up his judgment and issuing execution thereon, which was done. Leonard, hearing of this, issued a second at tachment, and the goods were sold by virtue of Bowne's execution and Clark's attachment.-Held, that Bowne could not maintain his priority over Leonard without claiming through the fraud practiced by Clark, the father, upon Leonard, and that Leonard was entitled to the fund. On final hearing on bill, answer and proofs. Mr. William J. Leonard, for the complainant. Mr. Frank P. McDermott, for the defendants. PITNEY, V. С. The complainant, Charles T. Leonard, is a judgment creditor of the defendant George B. Clark, such judgment being based upon process by attachment against the said Clark as an absconding debtor. The defendant David Craig Bowne is also a judgment creditor of the defendant George B. Clark. His judgment was by confession, and was entered and execution levied thereon Leonard v. Bowne. a few days prior to the issuance of the attachment which resulted in the complainant's judgment. The execution upon Bowne's judgment was placed in the hands of the defendant Woolley, as sheriff, and by virtue thereof he levied on a stock of goods, &c., in a country retail grocery store, and a few days later sold the same. The complainant, upon the levying of his attachment, which was prior to the sheriff's sale, filed the bill herein for relief against Bowne's judgment. The proceeds of the sale are in the hands of the sheriff, and form the subject-matter of the present contest. The complainant is not satisfied with a recovery of the proceeds of that sale, because the amount is not sufficient to pay his judgment, but contends that the defendant Bowne was, in law and equity, the partner of the defendant George B. Clark, and liable as such, and relief is asked against him in that aspect. The testimony has been taken, and the case has been considered, without objection, quite irrespective of the pleading. The facts are as follows: The defendant George S. Clark is the father of the defendant George B. Clark, and for a second wife he married the sister of the defendant Bowne. The defendant Bowne is a well-to-do farmer, living near Freehold, in Monmouth county, and between that town and Matawan. At and before the year 1890 the defendant George S. Clark, the father, was engaged in the retail grocery business in Matawan, and was assisted financially therein by Bowne. From the start that business was a losing venture, and so continued. On February 3d, 1891, Clark, the father, was embarrassed and pressed by his creditors, and made a bill of sale to Bowne of all his store goods and plant; the consideration therein expressed was the sum of $1,606.28. At the same time, by separate writing, he assigned to Bowne all the money due him on book accounts, &c., at an expressed consideration of $216.44. No money was paid by Bowne to the elder Clark on these transactions; but it was supposed that the aggregate of the consideration-money mentioned in the bill of sale and in the assignment represented the amount that Clark was indebted to Bowne. I stop here to say that at the trial of this cause evidence was Leonard v. Bowne. given on that subject, and I ascertained that the amount due was actually about $1,300. The business was continued without interruption by the elder Clark, in the name of Mr. Bowne, until the fall of that year. In the meantime some arrangement was made between the elder Clark and his creditors, which, however, has no bearing upon the present case. In the fall of 1891 George B. Clark, the son, attained his majority, and then, by a verbal arrangement, not witnessed by any writing, the defendant Bowne transferred to the young man the store and its contents and all the books of account, he assuming all the debts of the store proper and all the debts which the business then owed to the defendant Bowne. The business was continued as before, but in the name of the younger Clark, and it was managed afterwards, as before, by the elder Clark, and the family of the elder Clark and young Clark lived out of it. In the month of June, 1892, the store was moved from Matawan to Atlantic Highlands into a store building owned by the complainant, Leonard. On the 18th of July of that year the complainant endorsed a note of the young man, at his request and for his benefit, for $600, drawn at three months, which matured on the 18th of October of that year-1892-and which, I stop here to say, was renewed from time to time and finally paid by the complainant. On the 14th of October, 1892, four days before the maturity of that first note, the defendant George B. Clark, the son, signed a bond and warrant of attorney to confess judgment to the defendant Bowne for the sum of $1,600, which shortly after was delivered by the maker to Bowne, and kept by him for over a year without judgment being entered thereon. In the meantime the store was carried on in the name of the son, and managed by the father and son at a loss, and the indebtedness from the son to the complainant increased, so that, on the 18th of November, 1893, it amounted to over $1,000. Some days prior to the 18th of November, 1893, the younger Clark, while suffering under a temporary aberration of mind, absconded, and his whereabouts was unknown to his father or to any member of the family for a considerable length of time. |