where a suit was pending in an Ecclesiastical Court, touching the right of representation to a person deceased, a demurrer by one of the parties to that suit, who had possessed himself of the personal estate of the deceased, to a Bill for an account, filed by the other party, was overruled.' The ground of this decision seems to have been, the deficient power of the Ecclesiastical Court for securing the property, whilst the suit was there depending; and the doubt, as to the title of the parties, was the very ground of the application to a Court of Equity.

§ 513. Another objection, which may be taken by demurrer to the substance of the Bill, is, that, although the plaintiff has an interest in the subject-matter of the suit, and a title to institute a suit concerning it; yet he has no right to call upon the defendant to answer his demand.2 This objection frequently arises from the want of privity between the parties. But it is not necessarily confined to such cases; nor indeed does it apply to all cases, where there is a want of privity.3

§ 514. In the common course of things, (as we have seen,1) a creditor or legatee is compellable to sue the executor for satisfaction of his debt or legacy. But in such a suit he cannot ordinarily make a debtor of the

1 Mitf. Eq. Pl. by Jeremy, 157, 158; Cooper, Eq. Pl. 171; Phipps v. Steward, 1 Atk. 286. See also Morgan v. Harris, 2 Bro. Ch. R. 121. 2 Mitf. Eq. Pl. by Jeremy, 158; Ante, § 227, 266.

3 Cooper, Eq. Pl. 174; Id. 142; Tollett v. Tollett, Ambl. R. 194; Hawkins v. Kelly, 8 Ves. 308; 1 Mont. Eq. Pl. 44, 45, 115; Hare on Discov. 105-109. In cases of contribution, there is often a want of privity; and yet a Bill will lie against a party, who is bound to contribute; as, for example, in cases of contribution of different shippers in the case of a general average. 1 Story on Equity Jurisp. § 490, 491; Id. § 483-490.

4 Ante, § 262; 1 Mont. Eq. Pl. 45, 46.

estate a party; for, although the plaintiff in such suit has an interest in the testator's estate, and has a right to have it applied to answer his demands; yet he has no right to institute a suit against the debtors for the purpose of compelling them to pay their debts in satisfaction of his demands; for there is no privity between such creditor and the debtors.' But a special case may exist, in which such relief would be given; as, for example, where there is collusion between the executor and the debtors; or where the executor is insolvent.2

§ 515. For the same reason, if a debtor has conveyed his property in trust for the benefit of his creditors, the latter cannot ordinarily maintain any suit touching the property; but the suit should be in the name of the trustee. Thus, for example, if a mortgagor should make a conveyance in trust for the benefit of his creditors, the trustees, and not any of the creditors interested in the trust, would be the proper parties to bring a Bill to redeem the mortgage. But if any special case can be made out, such as collusion between the mortgagee and the trustees; or the refusal of the latter to redeem; or the insolvency of the latter; in every such case, the creditors may bring a Bill to redeem the mortgage.

1 Cooper, Eq. Pl. 175; Mitf. Eq. Pl. by Jeremy, 158; Ante, § 262; Alsager v. Johnson, 4 Ves. 217; Utterson v. Mair, 4 Bro. Ch. R. 269; S. C. 2 Ves. jr. 95; Beckley v. Dorrington, cited 6 Ves. 749; Doran v. Simpson, 4 Ves. 651; Burroughs v. Elton, 11 Ves. 29; Long v. Majestre, 1 John. Ch. R. 305; Newland v. Champion, 1 Ves. 104; Ante, § 227.

2 Alsager v. Rowley, 6 Ves. 748; Doran v. Simpson, 4 Ves. 651; Mitf. Eq. Pl. by Jeremy, 158, 159; Cooper, Eq. Pl. 175; 1 Story on Equity Jurisp. § 423, 581; 2 Story on Equity Jurisp. 828; Ante, § 178, 227, 263; Pearce v. Hewitt, 7 Sim. R. 471.

5 Troughton v. Binkes, 6 Ves. 573; Cooper, Eq. Pl. 174, 175.

$ 516. For the same reason, where a person has become bankrupt, and assignees are appointed, neither he, nor any of the creditors, can ordinarily maintain a suit against any debtor to his estate, or to reduce any of his property into possession; for the right belongs to the assignees. But if the assignees should collude with the other party; or should refuse to bring a suit for the benefit of the bankrupt and of his estate ; then, in such a case, the bankrupt, or any creditor,

may do so.

§ 517. Upon a similar ground, a Bill is not maintainable by a creditor of a legatee against the executor and the legatee, to compel the executor to pay over the legacy, in discharge of the debt of the legatee; for there is no privity between the creditor and the executor in such a case; and the latter is solely amenable to the legatee.' The same doctrine is applicable to the case of a suit, brought by a party interested, against a creditor or legatee, who has been improperly paid or overpaid by the executor.

$ 518. But there is often a privity created by operation of law between parties, without any direct and immediate contract or negotiation between them. Thus, for example, a sale by an agent or factor will create a privity between the purchaser and his principal, upon which a suit may be maintained, as well at

1 Ibid.

2 Cooper, Eq. Pl. 174, 175; Franklyn v. Ferne, Barnard. Ch. R. 30; Troughton v. Binkes, 6 Ves. 573, 575; Saxton v. Davis, 18 Ves. 72; Barton v. Jayne, 7 Sim. R. 24; Makepeace v. Haythorne, 4 Russ. R. 244; Kaye v. Fosbrooke, 8 Sim. R. 28; Ante, § 495, and cases there cited; Post, 9 726.

3 Elmslie v. McAulay, 3 Bro. Ch. R. 624; Mitf. Eq. Pl. by Jeremy, 158, 159; Ante, § 262; Cooper, Eq. Pl. 175, 176.

4 Cooper, Eq. Pl. 176; Alsager v. Rowley, 6 Ves. 750; 1 Story on Eq. Jurisp. 9 92 and note.

a bankrupt is made a party to a Bill against his assignees in any matter touching his estate, ordinarily he may demur; for all his interest is transferred to his assignees.' So, a married woman, who is made a defendant to a Bill against her husband, for the mere purpose of making her a witness, she having no interest in the suit, may, a fortiori, demur to the Bill; for she is not compellable, in any such case, to give testimony against her husband.2

520. And it is not only necessary, in order to prevent a demurrer, that the Bill should show, that the defendant has an interest in the subject matter ; but it must also be shown, that he is liable to the plaintiff's demand, which is the groundwork of the Bill. Thus, (as we have seen,) if a suit were brought by the obligee for satisfaction of a bond of the ancestor against his heir, alleging assets by descent, it would be a fatal defect on demurrer, that the Bill did not allege, that the heir was bound by the bond.

$ 521. Another ground of objection by demurrer is,

for discovery, has even been shaken? I can find no such authority. This demurrer, therefore, must be allowed. I will not say, as it is not necessary to determine, whether a Bill for relief might not be filed, upon the ground, that the examination at law must be of necessity defective for bringing forward all, that conscience requires; and that what is withheld is withheld by a person, having an interest in the question. But I cannot find an authority, that a person can be made a party to a Bill for discovery merely, to aid the plaintiff in Equity, as defendant at law, upon the circumstance, that the production and inspection of goods may be better compelled here. Demurrer allowed.” See also Hare on Discov. 73 – 76 ; Id. 76 - 79; Day v. Drake, 3 Sim. R. 64.

1 Whitworth v. Davis, 1 Ves. & Beam. 545; Mitf. Eq. Pl. by Jeremy, 161; Cooper, Eq. Pl. 178; Ante, § 231 - 233, 237; De Wolf v. Johnson, 10 Wheat. R. 384 ; Hare on Discov. 79-83.

2 Cooper, Eq. Pl. 177, 178; Barron v. Guillard, 3 Ves. & Beam. 165; Le Texier v. Marquis of Anspach, 5 Ves. 322; S. C. 15 Ves. 164

3 Ante, $ 257 ; Mitf. Eq. Pl. by Jeremy, 162, 163 ; Cooper, Eq. Pl. 178, 179.

4 Ibid.