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the hands of a receiver. A guardian ad litem may recoup his expenses from the infant's property. According to the English practice, an appearance could be entered for an infant before a guardian ad litem had been appointed.16 It is the safer practice in this country to serve the infant with a subpoena before the appointment of a guardian ad litem; " but where a guardian ad litem has been appointed, it will be presumed, in the absence of evidence to the contrary, that the infant was duly served.18 A decree against an infant is void unless he has been personally served with process, although a general guardian has appeared for him,19 except in cases mentioned in section 738 of the Revised Statutes.20

§ 40. Suits against idiots, lunatics, and persons of weak mind. Idiots and lunatics defend by guardians ad litem, appointed for them by the court. A committee will usually be appointed guardian ad litem of the person in his charge, unless his interest be opposed to that of the idiot or lunatic, or perhaps if he refuse to answer or defend. The guardian ad litem is usually joined with the idiot or lunatic as co-defendant. It was held by Chancellor Kent, that in New York the committee appointed in accordance with statute, and not the idiot or lunatic, is the proper party to the bill; but the rule in the Federal courts seems to be otherwise." "A person reduced by age or infirmity to a second infancy may defend by guardian.” It is said that the answer of a superannuated person, put in by guardian, may be read against him as an answer of one of full age put in in person; and that the difference in this respect between such answer and that of an infant put in by guardian is,

14 Ferguson v. Dent, 15 Fed. R. 771. 15 Ferguson v. Dent, 15 Fed. R. 771, 772.

16 Braithwaite's Pr. 322.

17 Smith v. Reid, 134 N. Y. 568; Settlemier v. Sullivan, 97 U. S. 444; infra, § 94.

2 Story's Eq. Pl., § 70; Westcomb v. Westcomb, 1 Dick. 233; Harrison v. Rowan, 4 Wash. C. C. 202, 207.

3 Snell v. Hyat, 1 Dick. 287; Story's Eq. Pl., § 70.

4 Lloyd v.

2 Dick. 460.

5 Harrison v. Rowan, 4 Wash. C. C.

18 Sloane v. Martin, 77 Hun (N. Y.), 202. 249; infra, § 94.

6 Brasher's Ex'rs v. Van Cortlandt,

19 N. Y. Life Ins. Co. v. Bangs, 103 2 Johns. Ch. (N. Y.) 242.

U. S. 435.

20 Infra, § 97.

§ 40. Rule 87; Harrison v. Rowan, 4 Wash. C. C. 202, 207.

7 Harrison v. Rowan, 4 Wash. C. C. 202, 207.

8 Markle v. Markle, 4 J. Ch. 168.

because an infant improves and mends, and therefore is to have a day to show cause after he comes of age; but the other grows worse, and is to have no day."

§ 41. Suits against married women. In suits against a married woman by a third person, her husband, if not civilly dead or permanently absent from the State, should be joined with her as a co-defendant;1 except perhaps in States where she has the same rights and liabilities as a spinster, or when she is sued in a representative capacity. She may, however, answer separately from her husband. A bill filed in the name of a married woman suing alone, may be amended by the addition of a next friend, when necessary.

9 Daniell's Ch. Pr. (2d Am. ed.) 224, 225; citing Leving v. Caverly, Prec. Ch. 229.

§ 41. Story's Eq. Pl., § 71; Calvert on Parties, Book III, ch. xxx; Hulme v. Tenant, 1 Brown, Ch. C. 16; Taylor v. Holmes, 14 Fed. R. 498, 514.

2 Lorillard v. Standard Oil Co., 2 Fed. R. 902. But see Taylor v. Holmes,

14 Fed. R. 499, 514; Douglas v. Butler, 6 Fed. R. 228; U. S. v. Pratt Coal & Coke Co., 18 Fed. R. 708; O'Hara v. MacConnell, 93 U. S. 150.

3 Moore v. Meynell, 2 Vern. 614, note. 4 Duke of Chandos v. Talbot, 2 P. Wms. 372.

Douglas v. Butler, 6 Fed. R. 228.

CHAPTER III.

PARTIES.

§ 42. General rule as to parties. In ordinary cases, all persons should be made parties to a suit in equity, who are directly interested in obtaining or resisting the relief prayed for in the bill or granted in the decree. If interested in obtaining the relief prayed for, they should join as plaintiffs; unless some refuse to appear in that capacity, when the rest should make them defendants.2 This rule has been also stated by the expressions: that "all persons interested in the subject of the suit should be before the court; " and that "all persons who have in the object or objects of the suit an interest or interests apparent upon the record, are necessary parties."

"In determining who are proper parties to a suit, courts of equity are guided by two leading principles. One of them is a principle admitted in all courts of justice in this country, upon questions affecting liberty, or life, or property; namely, that no proceedings shall take place with respect to the rights of any one, except in his presence. Thus a decree of a court of equity binds no one who is not to be regarded, according to the rules of the court, either as a party, or else as one who claims under a party, to the suit. The second is a principle which in this country is peculiar to courts of equity; namely, that when a decision is made, it shall provide for all the rights which different persons have in the matters decided. For a court of equity in all cases delights to do complete justice, and not by halves; to put an end to litigation, and to give decrees of such a nature that the performance of them may be perfectly safe to all who obey them: interest reipublicæ ut sit finis

§ 42. 1 Calvert on Parties, Book I, Fed. R. 549. For the rule in patent ch. i, and cases there cited.

2 Harding v. Handy, 11 Wheat. 103; Wisner v. Barnet, 4 Wash. C. C. 631, 642; Fallows v. Williamson, 11 Ves. 313; Calvert on Parties, Book I, ch. viii. But see Hicklin v. Marco, 56

cases, see infra, § 44.

3 Sir William Grant in Wilkins v. Fry, 1 Mer. 244, 262.

4 Calvert on Parties (2d ed.), p. 13, and cases there cited.

5 Knight v. Knight, 3 P. Wms. 333.

litium. In this respect there is a manifest distinction between the practice of a court of law and that of a court of equity. A court of law decides some one individual question which is brought before it; a court of equity not merely makes a decision to that extent, but also arranges all the rights which the decision immediately affects." Thus, when a person who is charged with the payment of a sum of money is surety to another, the principal must be joined as defendant to the bill; as in the case of a suit against an heir for the performance of a covenant by his ancestor which binds him as well as the ancestor's personal estate, when the personal representative must also be joined. For "the court of equity in all cases delights to do complete justice, and not by halves: as, first, to decree the heir to perform this covenant, and then to put the heir upon another bill against the executor to reimburse himself out of the personal assets, which, for aught appears to the contrary, may be more than sufficient to answer the covenant; and when the executor and heir are both brought before the court, complete justice may be done by decreeing the executor to perform this covenant as far as the personal assets will extend, the rest to be made good by the heir out of the real assets. And here appears no difficulty or inconvenience in bringing the executor before the court. On the contrary, it would prevent a multiplicity of suits, which a court of equity ought to do."7

§ 43. Parties with no interest in the subject-matter of the suit. Although as a general rule no person can be made a party against whom, if brought to a hearing, the plaintiff can have no decree,1 yet the English practice allowed strangers in certain cases to be made parties for the sake of discovery, and even in order to mulct them with costs. In a suit against a corporation, its officers, book-keeper, or members might be made parties for the sake of discovery concerning matters which had come to their knowledge while transacting the business of the corporation; but not, it seems, to obtain discovery

6 Calvert on Parties (2d ed.), pp. 2, 3. 7 Lord Chancellor Talbot in Knight v. Knight, 3 P. Wms. 331, 334.

§ 43. 1 Wych v. Meal, 3 P. Wms. 310, 311, note; Dan. Ch. Pr. (2d Am. ed.) 342.

Anon., 1 Vern. 117; Fenton v. Hughes, 7 Ves. 289; Glyn v. Soares, 1 Y. & C. 644; Many v. Beekman Iron Co., 9 Paige (N. Y.), 189; Doyle v. San Diego L. & Tr. Co., 43 Fed. R. 349; Virginia & A. Min. & Mfg. Co. v. Hale (Cal.), 9

2 Wych v. Meal, 3 P. Wms. 310; S. R. 256; Continental Nat. Bank v.

of such as they knew only through their participation in its formation. It is held in the Federal courts that when an answer under oath is waived, it is improper to make the officers of a corporation parties to a suit against it, if no relief is asked against them; and a demurrer by them to such a bill making them parties defendant will be sustained. Agents to sell, auctioneers, arbitrators, and attorneys could formerly be made defendants for a similar purpose in suits against their principals concerning transactions with which they were connected, but not where their principals were pecuniarily responsible. And in a few cases of fraud it has been held that persons implicated in the fraud might be made parties merely to make them liable for costs."

§ 44. Persons who on account of their interest need not be made parties to a suit in equity.-No persons should be joined as parties to a suit in equity, either as co-plaintiffs or co-defendants, who are not directly interested in obtaining or resisting the relief prayed for in the bill,' nor who claim the property in question under inconsistent titles. Thus, prior incumbrancers should not be made parties to a bill for the foreclosure of a mortgage, unless it prays for a receiver, or seeks

Heilman, 66 Fed. R. 184; Consolidated
Brake-Shoe Co. v. Chicago, P. & St.
L. Ry. Co., 69 Fed. R. 412; Calvert on
Parties (2d ed.), 92-94. But see Bos-
ton W. H. Co. v. Star R. Co., 40 Fed.
R. 167; Cleveland F. & B. Co. v. U. S.
Rolling S. Co., 41 Fed. R. 476.

(N. Y.) 33; Bowles v. Stewart, 1 Scho. & Lef. 209.

7 Taylour v. Rochford, 2 Ves. Sen. 281; Smith v. Green, 37 Fed. R. 424; Huggins v. King, 3 Barb. (N. Y.) 617; Hammond v. Hudson R. I. & N. Co., 20 Barb. (N. Y.) 386; Pritchard v.

3 McComb v. Chicago, St. L. & N. Palmer, 88 Hun, 412; Calvert on ParO. R. Co., 7 Fed. R. 426.

4 Colonial & U. S. Mtg. Co., Ld., v. Hutchinson Mtg. Co., 44 Fed. R. 219; Matthews & W. Mfg. Co. v. Trenton L. Co., 73 Fed. R. 212. See Boston W. H. Co. v. Star Rubber Co., 40 Fed. R. 167.

5 Fenton v. Hughes, 7 Ves. 288, 289; Dummer v. Corporation of Chip penham, 14 Ves. 252; Bowles v. Stewart, 1 Scho. & Lefr. 209; Brady v. McCorker, 1 N. Y. 214; s. C., 1 Barb. Ch. 343.

Seiferd v. Mulligan, 36 App. Div.

ties (2d ed.), 96, and cases cited. See Ewin v. Oregon Ry. & Nav. Co., 27 Fed. R. 625.

§ 44. 1 Calvert on Parties (2d ed.), 6; Mare v. Malachy, 1 M. & C. 559.

2 Calvert on Parties (2d ed.), 105; Marquis Cholmondely v. Lord Clinton, 2 Jac. & W. 138; Saumarez v. Saumarez, 4 M. & C. 331; Dial v. Reynolds, 96 U. S. 340; infra, § 73.

3 Hagan v. Walker, 14 How. 29, 37; Jerome v. McCarter, 94 U. S. 734; Nalle v. Young, 160 U. S. 624.

4 Miltenberger v. Logansport Ry. Co., 106 U. S. 286, 306.

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