est in property, yet he sought a determination of a question affecting the enjoyment of estates which, though distinct, came to him and the rest from a common source. Thus, one or more tenants or parishioners may sue a lord of a manor or parson, to establish a right of common,3 or of turbary. A few defendants have been allowed to represent a large class, not only when all of that class had some privity of estate, but also in other cases. Thus, a parson was allowed to sue a few on behalf of all his parishioners to establish a disputed right to tithes.5 A lord of a manor may sue some on behalf of all of his tenants to establish their duty to grind at his mill, or his right of enclosure, or to enforce a rent-charge.' Bills were sustained when brought by those interested in contesting the legality of the issue of certain certificates of indebtedness, against some on behalf of all of the holders of such certificates; and when brought by the purchaser to set aside a sale to him by a decedent against the executor of the vendor and some of his heirs at law, the other heirs at law being unknown." It seems that a bill can be sustained when filed by a claimant to the equitable title to a tract of land against some on behalf of all who have severally bought with notice parcels of it since his right accrued, praying that their conveyances be set aside as in fraud of his rights.10 "And it has long been settled, that if a person has a common right against a great many of the king's subjects, inasmuch as he cannot contend with all the king's subjects, a court of equity will permit him to file a bill against some of them, taking care to bring so many persons before the court that their interests shall be such as to lead to a fair and honest support of the public interest; and when a decree has been obtained, then, with respect to the individuals whose interest is so fully and honestly established, the court

3 Anon., 1 Chancery Cases, 269; Conyers v. Lord Abergavenny, 1 Atk. 285; Brown v. Vermuden, 1 Ch. Cas. 272; Smith v. Earl Brownlow, L. R. 9 Eq. 241.

4 Baker v. Rogers, Sel. Ch. Cas. 74. 5 Brown v. Vermuden, 1 Ch. Cas. 272; Hardcastle v. Smithson, 3 Atk. 246.

6 Brown v. Vermuden, 1 Ch. Cas.

7 Attorney-General v. Wyburgh, 1 P. Wms. 599; s. c., 2 Eq. Cas. Abr. 167; Attorney-General v. Jackson, 11 Ves. 365, 367; Attorney-General v. Shelly, 1 Salk. 162.

8 Sheffield Water Works v. Yeomans, L. R. 2 Ch. App. 8.

9 Alger v. Anderson, 78 Fed. R. 729, 733.

10 Ayres v. Carver, 17 How. 591.

11

13

on the footing of the former decree will carry the benefit of it into execution against other individuals who were not parties." Thus, a city may file such a bill to establish its right to levy a duty; 12 and it has been suggested that a suit may thus be brought by one of many persons jointly interested in a geographical trade-mark. In these cases, as has been said, a decree against the defendants before the court has been held in England to bind others of the same class; 14 but, on account of the positive language of the equity rule previously quoted, it is doubtful whether these decisions would be followed here.15 § 50. Omission of defendants not within the jurisdiction of the court. The second exception to the general rule is, that persons who cannot be subjected to the jurisdiction of a court of equity need not be joined as parties to a bill, provided that their presence is not indispensable to a decree. "When any are absent from the jurisdiction who, if within it, would be necessary parties defendant, their presence will ordinarily be dispensed with, provided an equitable and effectual decree can be made against those who have been served with process. The former English practice was to charge in the bill the fact of the absence from the realm of any who otherwise ought to have been joined as defendants, and to pray that they might be served with process if they came within the jurisdiction. Under the modern English system this strictness is not required, and it seems to be sufficient if the excuse for not making the absent parties defendant appears on the face of the bill." This rule of equity practice has been confirmed by statute in the United States. "When there are several defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may entertain jurisdiction, and proceed to the trial and

11 Lord Eldon in Weale v. West Middlesex Water Works Co., 1 Jac. & Walk. 358, 369.

12 City of London v. Perkins, 3 Bro. Parl. Cas. 602; Mayor of York v. Pilkington, 1 Atk. 282.

272; Lord Eldon in Weale v. West Middlesex Water Works Co., 1 Jac. & Walk. 358, 369.

15 See McArthur v. Scott, 113 U. S. 340, 395; Am. Steel & Wire Co. v. Wire Drawers' & Dye Makers' Unions,

13 City of Carlsbad v. Tibbetts, 51 95 Fed. R. 598, quoted supra, § 48.

Fed. R. 852, 856, per Putnam, J.

14 Brown v. Vermuden, 1 Ch. Cas.

$ 50. Judge Dwight Foster in Palmer v. Stevens, 100 Mass. 461, 466.

adjudication of the suit between the parties who are properly before it, but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process nor voluntarily appearing to answer; and nonjoinder of parties who are not inhabitants of, nor found within the district as aforesaid, shall not constitute matter of abatement or objection to the suit." This statute is, however, merely declaratory, and does not enlarge the power previously possessed by courts of equity. The power has been extended by rule, and parties not indispensable to an equitable decree may be omitted if their joinder would oust the court of jurisdiction by placing persons of the same citizenship upon different sides of a controversy. "In all cases where it shall appear to the court that persons who might otherwise be deemed necessary or proper parties to the suit cannot be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may in their discretion proceed in the cause without making such persons parties; and in such cases the decree shall be without prejudice to the absent parties." "If any persons, other than those named as defendants in the bill, shall appear to be necessary or proper parties thereto, the bill shall aver the reason why they are not made parties, by showing them to be without the jurisdiction of the court, or that they cannot be joined without ousting the jurisdiction of the court as to other parties. And as to persons who are without the jurisdiction and may properly be made parties, the bill may pray that process may issue to make them parties to the bill if they should come within the jurisdiction." Such being the general rule, it remains to be considered what parties are indispensable to an equitable decree. As has been said above, a court of equity will ordinarily seek to have before it as parties all persons in any manner interested in the subjectmatter of the litigation, in order to make a decree that will prevent the necessity of a subsequent appeal to its aid. This

2 U. S. R. S., § 737. See Conolly v. Wells, 33 Fed. R. 205; Wall v. Thomas, 41 Fed. R. 620.

Shields v. Barrow, 17 How. 130, 141.

4 Rule 47.
5 Rule 22.

68 42.

rule, however, having been established for the promotion of justice, will be modified whenever its rigid enforcement would prevent the court from doing justice to a person invoking its protection. Accordingly it will proceed to a decree without the presence of such parties as cannot be subjected to its jurisdiction, provided it can determine the respective rights of the parties before it without affecting those of the rest. There are three classes of parties: formal parties; parties necessary to a decree which completely disposes of the controversy, so that the aid of the court need not be invoked again, but whose interests are so far separable from those of the parties before the court, that it can dispose of the controversy between the latter without affecting the interests of the former; and parties with an interest in the controversy "of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience." Of these the first two classes can always be omitted, when they are beyond the reach of the process of the court or when their joinder would oust its jurisdiction. The rule upon the subject has been well stated by Mr. Justice Bradley: "The general rule as to parties in chancery is that all ought to be made parties who are interested in the controversy, in order that there may be an end of litigation. But there are qualifications of this rule arising out of public policy and the necessity of particular cases. The true distinction appears to be as follows: First, when a person will be directly affected by a decree he is an indispensable party, unless the parties are too numerous to be brought before the court, when the case ist subject to a special rule. Secondly, when a person is interested in the controversy, but will not be directly affected by a decree made in his absence, he is not an indispensable party, but he should be made a party if possible, and the court will not proceed to a decree without him if he can be reached. Thirdly, when he is not interested in the controversy between the immediate litigants, but has an interest in the subjectmatter, which may be conveniently settled in the suit, and

Mr. Justice Curtis in Shields v. Barrow, 17 How. 130, 139. See Chadbourne v. Coe, 51 Fed. R. 479.

thereby prevent further litigation, he may be a party or not at the option of the complainant."8

§ 51. Formal parties who may be omitted when without the jurisdiction.- Formal parties are those with a naked legal title, but no equitable interest in the subject-matter of the controversy. If the persons really interested are before the court, formal parties can always be omitted if without the jurisdiction; and their joinder, no matter whether as plaintiffs or defendants, cannot oust the court of jurisdiction, as they are in reality upon neither side of the controversy. Such are: a husband against whom no relief is sought, in a suit by his wife to enforce the trusts of a marriage settlement; trustees of prior railroad mortgages in a suit for the foreclosure of a subsequent mortgage and the sale of the mortgaged property subject to their liens; and parties with the naked legal title having no interest in the controversy. A person against whom an injunction is sought, unless he consents thereto, is never a nominal party. When a suit is brought to recover the possession of real or personal property the person in possession is not a formal party.

3

§ 52. Parties whose interest is separable.-The second class is not so easy to define; and it is difficult to mark the limits between this and the third class of parties who are always indispensable. It includes all having an interest in the controversy so far separable from that of those before the court that a decree can be made and enforced which disposes of the matter in dispute between the latter without affecting their

8 Williams v. Brownhead, 19 Wall. 563, 571. See Chadbourne v. Coe, 51 Fed. R. 479.

§ 51. 1Simms v. Guthrie, 9 Cranch, 19, 25; Wormley v. Wormley, 8 Wheat. 421, 451; Boon's Heirs v. Chiles, 8 Pet. 532; Union Bank of Louisiana v. Stafford, 12 How. 327; New Orleans Canal & Banking Co. v. Stafford, 12 How. 343.

2 Wormley v. Wormley, 8 Wheat. 421, 451; Removal Cases, 100 U. S. 457; Pacific R. Co. v. Ketchum, 101 U. S. 289; Walden v. Skinner, 101 U. S. 577; Harter v. Kernochan, 103 U. S. 562; supra, § 10.

Wormley v. Wormley, 8 Wheat.

421; Taylor v. Holmes, 14 Fed. R. 499. But see Watts v. Waddle, 1 McLean, 200.

4 Pacific R. Co. v. Ketchum, 101 U. S. 289, 298.

5 Simms v. Guthrie, 9 Cranch, 19, 25; Boon's Heirs v. Chiles, 8 Pet. 532; Union Bank of Louisiana v. Stafford, 12 How. 327; New Orleans Canal & Banking Co. v. Stafford, 12 How. 343; Walden v. Skinner, 101 U. S. 577, 588; Bacon v. Rives, 106 U. S. 99.

6 Ward v. Arredondo, 1 Paine, 410; Mills v. Hurd, 32 Fed. R. 127.

7 Mass. & So. Const. Co. v. Cane Creek Tp., 155 U. S. 283.