rights. Thus, a trustee or director or executor beyond the jurisdiction has been held properly omitted in a suit against his colleagues for a breach of trust, or for an accounting. For a trustee's liability is joint and several. One of the next of kin' may sue an administrator and his sureties; and a legatee," at least if not a residuary legatee, may sue an executor to recover his share of a decedent's estate without joining the rest of the class to which he belongs. It seems that the executor of a dead debtor need not be a party to a bill brought by a creditor of the estate to obtain payment out of assets in the hands of a legatee. Subsequent lienors are not indispensable parties to a foreclosure suit. In a suit against a firm by strangers, a partner beyond the jurisdiction may perhaps be omitted if no injustice will be done him by a decree in his absence. It has been held that in a suit by one partner against another for an account of money received by the defendant in excess of his share of the firm assets, partners beyond the jurisdiction may be omitted if it appears that each has received his full share of the joint property.10 A subcontractor who has fraudulently collected money from the United States may be sued at law to recover this without the joinder of the contractor, although the latter at the former's instigation made

§ 52. 1 Cameron v. McRoberts, 3 Wheat. 591; Mallow v. Hinde, 12 Wheat. 193; Gridley v. Wynant, 23 How. 500; Horn v. Lockhart, 17 Wall. 570; Nesmith v. Calvert, 1 Woodb. & M. 34.

2 Parsons v. Howard, 2 Woods, 1, 5; Heath v. Erie Ry. Co., 8 Blatchf. C. C. 345; Hazard v. Durant, 19 Fed. R. 471, 476; Plume & A. Mfg. Co. v. Baldwin, 87 Fed. R. 785. But see Wall v. Thomas, 41 Fed. R. 620.

3 Parsons v. Howard, 2 Woods, 1, 5; Heath v. Erie Ry. Co., 8 Blatch. 347. 4 Payne v. Hook, 7 Wall. 425. See, however, West v. Randall, 2 Mason, 181; Wisner v. Barnet, 4 Wash. C. C. 631, 642; Greene v. Sisson, 2 Curtis, 171.

"Dandridge v. Washington's Ex'rs, 2 Pet. 377. See West v. Randall, 2 Mason, 181.

6 See McArthur v. Scott, 113 U. S. 340, 395; Braduin v. Harpur, Ambler, 374; Hawly v. Harvey, 4 Beav. 215; s. C., 5 Beav. 134.

7 Milligan v. Milledge, 3 Cranch, 220.

8 Brewster v. Wakefield, 22 How. 118, 129; Union Bank of Louisiana v. Stafford, 12 How. 327; New Orleans C. & B. Co. v. Stafford, 12 How. 343; Howard v. Railway Co., 101 U. S. 837; Nalle v. Young, 160 U. S. 624. See supra, § 44.

9 Cowslad v. Cely, Prec. Ch. 83; Darwent v. Walton, 2 Atk. 510; Calvert on Parties, Book III, ch. xxiii; Vose v. Philbrook, 3 Story, C. C. 335. Contra, Parsons v. Howard, 2 Woods, 1; Bell v. Donohoe, 17 Fed. R. 710.

10 Towle v. Pierce, 12 Met. (Mass.) 329; Kilbourn v. Sunderland, 130 U. S. 505.

the fraudulent representations." When one of two joint contractors has fraudulently released his interest in the contract, he is not indispensable to a bill filed by his associate against the other party.12 To a bill to enjoin the infringement of a patent, one partner can be made a defendant without the other members of the infringing firm, unless an accounting is sought, in which case all must be joined.13 "The owners of partial interests in contracts for land, acquired subsequently to their execution, are not necessary parties to bills for their enforcement. The original parties on one side are not to be mixed up in controversies between the parties on the other side, in which they have no concern.' 99 14 An heir may file a bill for the specific performance of a contract entitling his ancestor to purchase land without bringing in the personal representative of his ancestor, provided that he offers himself to provide for the payment of the purchase-money. Specific performance of a contract for the sale of land may be enforced against one of several joint tenants without joining the others with him as defendants. It was held that to a bill to set aside a deed and power of attorney for the sale of land, a purchaser of part of the land from one of the defendants was not an indispensable party." The assignor of a claim is not a necessary party to a suit upon it by his assignee, unless the assignment be executory,19 or the assignor has an equitable interest in the claim.20 A railway company is not an indispensable party to a bill against its receiver to enforce specific performance of a contract made by it." The directors of a corporation are not indispensable parties to a suit by a stockholder to restrain it from acting in violation of his rights. To a bill to restrain

11 U. S. v. Salisbury, 157 U. S. 121. 12 Canal Co. v. Gordon, 6 Wall. 561; U. S. v. Salisbury, 157 U. S. 121.

13 American B. Mach. Co. v. Crosman, 57 Fed. R. 102.

14 Mr. Justice Field in Willard v. Tayloe, 8 Wall. 557, 571. But see Hoxie v. Carr, 1 Sumner, 173.

15 Prout v. Roby, 15 Wall. 471. 16 Stephen v. Beall, 22 Wall. 329. 17 Billings v. Aspen M. & S. Co., 51 Fed. R. 338, 350. See Hicklin v. Marco, 56 Fed. R. 549.

15

22

18 Batesville Inst. v. Kauffman, 18 Wall. 151; Trecothick v. Austin, 4 Mason, 16.

19 Land Co. v. Elkins, 20 Fed. R. 545.

20 Hubbard v. Manhattan Tr. Co. (C. C. A.), 87 Fed. R. 51, 57; Western Nat. Bank v. Armstrong, 152 U. S. 346.

21 Express Co. v. Railroad Co., 99 U. S. 191.

22 Heath v. Erie Ry. Co., 8 Blatch. C. C. 347.

the directors of a corporation from negotiating a fraudulent sale of its property, the person to whom the sale is about to be made is not an indispensable party if no contract has been made with him. In proceedings under section 16 of the Interstate Commerce Act against a railroad company to enforce an order of the commission, it is not necessary that another carrier making the forbidden rate jointly with the defendant be made a party when he is without the jurisdiction.24 To a suit by one indorser of a bill of exchange to restrain the collection of a judgment for the amount of the bill against him, upon the ground that the bill had been paid by another indorser, the latter indorser is not a necessary party.25 To a bill by a creditor to satisfy a judgment out of land in a debtor's possession, but fraudulently conveyed by him to a person beyond the jurisdiction of the court, the person in whose name the land stood was held not to be an indispensable party. To a bill to enjoin the execution of a judgment of ejectment and to decree a conveyance of lands, when the plaintiffs had an equitable title only, the persons whose legal title the complainants asserted were held properly omitted, when no relief was prayed against them, and their joinder would have ousted the court of jurisdiction." It has been held that a tenant in common of a water-right may sue to enjoin an injury to the property without making his co-tenant a party.28 It has been said that, to a bill by a private individual to enjoin the maintenance of a public nuisance, neither persons jointly interested with him nor those jointly guilty with the defendant are indispensable parties. It has been suggested that the absence of one person guilty of a joint fraud might not prevent the court from taking jurisdiction over the others.30 And in general to a suit for

23 Abbot v. American H. R. Co., 4 Blatchf. C. C. 489; Wallace v. Holmes, 9 Blatchf. C. C. 65. But see Elkins v. Camden & A. R. Co., 36 N. J. Eq. 241. 24 Interstate Com. Com'n v. Texas & P. Ry. Co., 52 Fed. R. 187; s. c. as T. & P. Ry. Co. v. Interstate Com. Com'n, 162 U. S. 197, 265.

25 Atkins v. Dick, 14 Pet. 114. 26 McCoy v. Rhodes, 11 How. 131, 141. But see Billings v. Aspen M. & S. Co., 51 Fed. R. 338.

27 Simms v. Guthrie, 9 Cranch, 19, 25. See also Boon's Heirs v. Chiles, 8 Pet. 532. But compare Mallow v. Hinde, 12 Wheat. 193. A border case is Elmendorf v. Taylor, 10 Wheat. 152.

28 Union M. & M. Co. v. Dangberg, 81 Fed. R. 73, 87.

29 Miss. & Mo. R. Co. v. Ward, 2 Black, 485.

30 Judge Dwight Foster in Palmer v. Stevens, 100 Mass. 461, 466. See

34

an injunction against a tort," or the infringement of a patent not committed under color of a contract right," one or more of the joint wrong-doers may be omitted. Thus, the officers, agents and stockholders of a corporation may be enjoined from infringing a patent while acting for the company when the corporation itself is not a party and is beyond the jurisdiction." In an action by a creditor of a corporation to enforce the individual liability of its directors or stockholders, or to collect unpaid assessments or subscriptions from them, he cannot usually sue alone at law, but should file a bill in equity in behalf of himself and the other creditors, if any; and he may ordinarily make one, some or all of the stockholders parties, according to his pleasure. A State is not an indispensable party to a bill seeking to restrain its officers from levying for its benefit an illegal tax; nor, it has been held, to a bill to prevent their illegal issue of land warrants for property which it had agreed to convey to the plaintiff; " nor to a bill to restrain their unlawful issue of bonds which would diminish the value of bonds held by the complainant.38 To such bills the persons to whom the unlawful issue of bonds or land warrants is about to be made, are not indispensable parties."

36

35

37

39

§ 53. Parties indispensable to a decree.- No suit, however, can proceed unless the court have before it as parties all persons who will be directly affected by the decree sought, or whose obedience is necessary to its enforcement, when it does not appear that they consent thereto. A person is affected by

also Heath v. Erie Ry. Co., 8 Blatchf. C. C. 347. But see Bell v. Donohoe, 17 Fed. R. 710; Wall v. Thomas, 41 Fed. R. 620.

derson v. Dole (C. C. A.), 74 Fed. R. 29; supra, § 5.

35 Ogilvie v. Knox Ins. Co., 22 How. 380; Hatch v. Dana, 101 U. S. 205;

31 Miss. & Mo. R. Co. v. Ward, 2 Manufacturing Co. v. Bradley, 105 Black, 485.

32 American B. Mach. Co. v. Crosman, 57 Fed. R. 1021.

33 Edison El. L. Co. v. Packard El. L. Co., 61 Fed. R. 1002.

34 Hornor v. Henning, 93 U. S. 228; Terry v. Little, 101 U. S. 216; Terry v. Tubman, 92 U. S. 156; Pollard v. Bailey, 20 Wall. 526; Welles v. Graves, 41 Fed. R. 459; First Nat. Bank v. Peavey, 75 Fed. R. 154. But see Al

U. S. 175.

5

a decree when his rights against, or liability to, any of the parties to the suit is thereby determined. If a decree in favor of the complainant would cast a cloud upon another's title, that person, it seems, is thereby directly affected. A State is an indispensable party to a bill against its officers to compel specific performance by them for it of its contract for the sale of land;" or to establish a claim to property held by its officers claiming a title in the State thereto; or a claim to corporate stock registered in its name, the certificates of which are held by its officers; or to enjoin its officers from commencing a suit in its name; but not, it has been held, to a bill by the United States against a private individual to cancel a contract between him and the State for the purchase of land obtained by the State from the plaintiff through mistake or fraud.' The trustee of an active trust is a necessary party to a suit affecting the trust estate. Every party to a contract, whether of sale or for another purpose, except one who has released his interest or an agent through whom the title has passed,10 is ordinarily a necessary party to a suit to enforce it; " or to set it aside; 12 or, unless its

8

2 Young v. Cushing, 4 Biss. 456; California v. Southern Pac. R. Co., 157 U. S. 229. But see Hicklin v. Marco, 56 Fed. R. 549. It was held improper to compel defendant to make a deed confirming complainant's title to land conveyed by the latter's grantors when such grantors were not parties. Zenbrugg v. Reed (N. J. Ch., 1896), 35 Atl. R. 298.

3 Preston v. Walsh, 10 Fed. R. 315. See also Walsh v. Preston, 109 U. S. 297.

Aspen M. & S. Co., 51 Fed. R. 338, 350; s. c. in C. C. A., 52 Fed. R. 250. But see New Chester Water Co. v. Holly Mfg. Co. (C. C. A.), 53 Fed. R. 19; supra, § 45.

9 Canal Co. v. Gordon, 6 Wall. 561.

10 Donovan v. Campion, 85 Fed. R. 71; Gross v. George W. Scott Mfg. Co., 48 Fed. R. 35; Hamilton v. Savannah, F. & W. Ry. Co., 49 Fed. R. 412. But see California v. So. Pac. Co., 157 U. S. 229.

11 Mallow v. Hinde, 12 Wheat. 193;

4 Cunningham v. Macon & B. R. Shields v. Barrow, 17 How. 130; GregCo., 109 U. S. 446. ory v. Stetson, 133 U. S. 579; Perin v.

5 Christian v. Atlantic & N. C. R. Megibben, 53 Fed. R. 86; Rollins Inv. Co., 133 U. S. 233.

6 In re Ayers, 123 U. S. 443. But

see supra, § 37.

Co. v. George, 48 Fed. R. 776.

12 Shields v. Barrow, 17 How. 130; Coiron v. Millaudon, 19 How. 113;

7 Williams v. U. S., 138 U. S. 514, Gaylords v. Kelshaw, 1 Wall. 81;

516.

8 McRea v. Branch Bank of Alabama, 19 How. 376; O'Hara v. MacConnell, 93 U. S. 150; Thayer v. Life Ass'n, 112 U. S. 717; American B. S. v. Price, 110 U. S. 61; Billings v.

Ribon v. Railroad Cos., 16 Wall. 446; Lawrence v. Wirtz, 1 Wash. C. C. 417; Tobin v. Walkinshaw, 1 McAll. 26; Bell v. Donohoe, 17 Fed. R. 710; Florence S. Mach. Co. v. Singer Mfg. Co., 4 Fisher's Pat. Cas. 329; s. c., 8