BIRD, V. C.

Bill by Walworth Pattison and others against William H. Skillman, Jr., to compel the surrender of chattels alleged to be of peculiar value.

Bartine & Griggs, for complainants. John Schomp, for defendant.

The legal principle on which the allegations in this bill rest is to be found in Pattison v. Skillman, 34 N. J. Eq. 344. The allegations of the bill are that the complainants were the owners of certain letters and other written instruments of great and peculiar value to them in establishing their claim of title to lands, and that they delivered those papers to the defendant in order that he might carry out a promise made to them that he would take them and ascertain their rights in the said lands, and that he has failed to make the necessary investigation, and refuses, on demand, to surrender the papers. On demurrer, the chancellor held the bill good.

My duty is to deal with the facts as established, and to determine whether or not the complainant now, with the proof before me, stands within the scope of his pleadings. As to the value of the papers I am not left in the slightest doubt, for the defendant says that they are of some value in reference to the claim of the complainants to the land referred to. There are two phases of the question not so clearly in favor of the complainants; indeed, they create so much doubt that I am unable to advise a decree for complainants. The defendant produces a release from one of the complainants to himself, by which he transfers to the defendant all his interest in the premises. This would perhaps defeat the other complainant in his asking, as the bill is now framed. Supposing, however, that this difficulty could be overcome by proper averments and prayers, the other point of difficulty remains; and that is the inability of the court to make its decree effectual in case it direct the defendant to surrender the specific papers. The papers were taken by the defendant to an attorney at law, whose name was given to the complainants, or one of them, for the purpose of prosecuting his inquiries respecting the claim of title. They passed from him to another attorney for the same purpose. This last attorney died while he had the possession of the papers. The papers cannot now be found. From the testimony I infer, but cannot so adjudge, that they are in the attorney's safe; but as yet they have not been reached. With this fact, and without proof to satisfy me that the defendant has it in his power to produce the papers or that he has willfully put them away to obstruct justice, I certainly ought not to advise a decree which would prove wholly inefficacious to the complainant, however much the court might punish the defendant for disobedience.

It is not devoid of interest or profit to observe that the defendant, according to the complainants' own showing, was simply an agent; and, after the expiration of a reasonable time such as must have elapsed to warrant the filing of this bill, the complainants were entitled to revoke the agency, and demand the papers either of the agent or of any one else who might have possessed them. I think this will not be disputed, which, being so, the complainants had the right to make claim of their papers of either or both of the attorneys. If the theory of the bill be true, that the defendant has no longer any right as against the complainants to the papers, then the attorneys, his agents, certainly have no rights as against the complainants. Then it would seem quite manifest that the agent or attorney who had the actual possession of the papers at the time of the filing of the bill ought to have been made a party. Were he before the court, the court might command him with a reasonable probability of enforcing its decree.

I will advise that the complainants' bill be dismissed, with costs.