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the bill, need not be joined as a defendant with the other parties interested, unless his presence is indispensable for their protection. Sometimes the plaintiff is required to execute a satisfactory undertaking that the party omitted will conform to the decree. Similarly, a person who disclaims all interest in the subject-matter may also be omitted, unless his joinder is essential to the protection of the rights of the other defendants. An agreement between two persons that one shall represent the other as plaintiff, when the former would otherwise have no right to the relief sought, will not be sanctioned by the court.

§ 56. When the plaintiff waives his right against a person."Where a plaintiff," says Lord Hardwicke, "is only concerned in interest, there he may waive his demand, and omit making the party a defendant to his bill." In accordance with this practice, the equity rules provide that "in suits to execute the trusts of a will, it shall not be necessary to make the heir-at-law a party; but the plaintiff shall be at liberty to make the heir-at-law a party when he desires to have the will established against him."" Such a waiver cannot, however, be made unless it can be without prejudice to those against whom the bill is filed.'

857. When the interest of an absent person is evidently very small.— In England it has been held, in accordance with the maxim de minimis non curat lex, that when the interest of an absent person is evidently very small the court will dispense with his presence in the suit. This view seems to be sanctioned by two decisions of the Supreme Court of the United States.2

57a. When the absent persons are unknown.- When the absent persons are unknown and it is so stated in the bill, their omission is no defect in the suit until they are discovered,

§ 56. 1 Williams v. Williams, 9 Mod. 299. See also Wilson v. Todd, 1 M. & C. 42, 46; Calvert on Parties (2d ed.), 83, and cases cited.

2 Rule 50, copied from the 31st Order in Chancery of August, 1841.

3 Anon., 2 Eq. Cas. Abr. 166, pl. 6; Story's Eq. Pl., § 139.

§ 57. 1 Calvert on Parties (2d ed.), Book I, ch. V, p. 70; Daws v. Benn, 1 J. & W. 513; Attorney-General v. Goddard, 1 T. & R. 348, 350. See also Faulkner v. Daniel, 3 Hare, 199, 213. 2 Union Bank v. Stafford, 12 How. 327; New Orleans C. & B. Co. v. Stafford, 12 How. 343.

at least when parties with similar rights are parties who may defend in their interest.1

§ 58. When the right of administration is in dispute.The English rule was, that when there was a contest in the Ecclesiastical Court over the, right of administration upon a decedent's estate, the omission in a bill affecting that estate of an administrator might be excused if special circumstances were shown. If, however, no proceeding in the Ecclesiastical Court were pending, one must be instituted before the bill could be filed.2

§ 59. Relaxation of rule as to parties in special cases.The rules upon the subject of parties are, however, very loose, and the questions arising under them are decided largely in the discretion of the court. "The necessity for the relaxation of the rule is more especially apparent in the courts of the United States, where, oftentimes, the enforcement of the rule would oust them of their jurisdiction, and deprive parties entitled to the interposition of a court of equity of any remedy whatever." A court of equity adapts its decrees to the necessities of each case; and should a suit brought by a single complainant concerning a matter in which others as well as himself were interested terminate in a decree against the defendants, it is easy to do substantial justice to all the parties in interest, and prevent a multiplicity of suits, by allowing the other persons similarly situated with the plaintiff, "either through a reference to a master, or by some other proper proceeding, to come in and share in the benefit of the litigation." The discretion as to the joinder or omission of parties is, how

§ 57a. 1 Alger v. Anderson, 78 Fed. How. 1; Barney v. Baltimore, 6 Wall. R. 729, 734.

$58. Plunket v. Penson, 2 Atk. 51; Penny v. Watts, 2 Phillips, 149, 154; Calvert on Parties (2d ed.), Book I, ch. V, p. 70.

2 Penny v. Watts, 2 Phillips, 149, 154; Calvert on Parties (2d ed.), Book 1, ch. V. See Reed v. Bennett (N. J. Errors & Appeals, 1897), 37 Atl. R. 75; supra, § 45.

$ 59. Cameron v. McRoberts, 3 Wheat. 591; Elmendorf v. Taylor, 10 Wheat. 152, 167; Lewis v. Darling, 16

280; Payne v. Hook, 7 Wall. 425; Barney v. Latham, 103 U. S. 205; Greene v. Sisson, 2 Curtis, 171; West v. Randall, 2 Mason, 181; Parsons v. Howard, 2 Woods, 1; Winter v. Ludlow, 3 Phila. (Pa.) 464.

2 Mr. Justice Davis in Payne v. Hook, 7 Wall. 425, 432.

3 Mr. Justice Davis in Payne v. Hook, 7 Wall. 425, 432. See s. c. as Hook v. Payne, 14 Wall. 252; infra, § 201.

ever, one which, when properly raised, is subject to review upon appeal. An act of Congress relaxing or extending the rules as to parties in a particular case is constitutional."

§ 60. Restatement of the rules as to parties.-The rules upon the subject may be summarily though roughly stated thus:

I. All persons, not too numerous, whose joinder will not oust the jurisdiction of the court, and who have any direct interest in obtaining or resisting the relief prayed for in a bill, or granted in a decree which so disposes of the controversy as to prevent any future litigation concerning the same, must be parties to a suit in equity.1

II. No person without an interest in the contest or its settlement can be joined as a party, except perhaps the officer or member of a corporation, who according to some authorities may be made a defendant to a bill praying relief against it, in order to compel from him a discovery of facts of which he acquired knowledge in his official capacity.2

III. If the persons having a common interest in the subject of the controversy or the question to be decided therein are numerous, they may in certain cases be represented, as plaintiffs or defendants, by others who hold the legal title in trust for them, or by one or more of their number suing, or more rarely being sued, in their behalf."

IV. Persons having a merely formal interest, or an interest so far separable from that of the principal parties that a decree disposing of the controversy as between the latter can be made and enforced without affecting their rights, may always be omitted when, by reason of their residence or citizenship, not within the jurisdiction of the court.*

V. All persons who have such an interest in the controversy that a decree cannot be enforced without directly affecting their rights, must be joined as parties; except possibly when they are unknown to the complainants, or when their interest is

4 Caldwell v. Taggart, 4 Pet. 190; Robertson v. Carson, 19 Wall. 94; Hoe v. Wilson, 9 Wall. 501; Railroad Co. v. Orr, 18 Wall. 471.

5 U. S. v. Union Pacific R. Co., 98 U. S. 569.

60. 1 §$ 42, 43, 50. 2 § 43.

3 §§ 46, 47, 48.

4 §§ 45, 50, 51, 52.

very small, or has been created for the purpose of depriving the court of jurisdiction."

VI. There is no need of joining as parties any against whom the plaintiffs waive their rights, or who are willing to allow the relief prayed for in the bill, unless their presence is necessary for the protection of those who have been made defendants. VII. The necessity of the joinder of parties is always in the sound discretion of the court, which adapts itself to the facts of each particular case.'

3

§ 61. Objection for want of parties.- An objection that there is a defect of parties may be taken by demurrer, plea, or answer, or at the hearing; and if the absent persons are indispensable parties, even for the first time upon appeal; although not if a decree has been made which cannot prejudice their interests. "If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties, not having by plea or answer taken the objection, and therein specified by name or description the parties to whom the objection applies, the court (if it shall think fit) shall be at liberty to make a decree saving the rights of absent parties." The usual practice is for the court, if it considers the objection good, to allow the cause to stand over until the plaintiff shall amend his bill by bringing in the additional parties needed." If the omitted parties on account of their citizenship cannot be brought in, the court may retain the bill, and perhaps continue an injunction in accordance with its prayer, until the complainants have had a reasonable time to litigate the matters in controversy between themselves and the omitted parties in a

§§ 53, 54, 57, 57a. 6$ 55, 56. 7 $ 59. $59.

§ 61. For the rules regulating the manner of taking the objection, see the chapters on those pleadings.

2 Hoe v. Wilson, 9 Wall. 501.

3 $ 52, 53. See Keller v. Ashford, 133 U. S. 610, 626.

4 Rule 53. Where a defendant in a suit in equity for the infringement of a patent made objection for the first time at the argument upon final hearing, that there was a defect of

parties, because a person holding an equitable title to the patent was not a party; and it appeared that no such issue was made by the pleadings, and that during the taking of the testimony the defendant's counsel admitted that the title to the patent was in the complainant, it was held that the objection was made too late and it was overruled. California El. Works v. Finck, 47 Fed. R. 583. See also Hills v. Putnam, 152 Mass. 123.

5 Hunt v. Wickliffe, 2 Pet. 201, 215.

court of competent jurisdiction; and if it should then appear by the judgment of such a court that the complainants have in equity a superior title to the omitted parties, proceed to a determination of the rights between the parties to the bill. If, however, the complainant does not within a reasonable time amend his bill, or, if so allowed by the court, proceed against the omitted parties, the court may dismiss his bill; but such dismissal must be without prejudice." "Where the defendant shall, by his answer, suggest that the bill is defective for want of parties, the plaintiff shall be at liberty, within fourteen days after answer filed, to set down the cause for argument upon that objection only; and the purpose for which the same is so set down shall be notified by an entry, to be made in the clerk's order-book, in the form or to the effect following (that is to say): 'set down upon the defendant's objection for want of parties.' And where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order for liberty to amend his bill by adding parties, but the court, if it thinks fit, shall be at liberty to dismiss the bill." A lack of proper parties is not a jurisdictional defect; and therefore, if, pending the decision of the court, upon an objection for the omission of a party whose presence would oust the Circuit Court of jurisdiction, he dies, or his interest ceases, and the defect is thereby cured, the court will retain the bill. It was held, where a defendant had removed a case, that he could not object to the absence of a party whose joinder would deprive the Federal court of jurisdiction.10

§ 62. Objection for joinder of improper parties.-If persons are improperly joined as plaintiffs, all the defendants may demur. If a person is joined as a plaintiff without his con

6 Mallow v. Hinde, 12 Wheat. 193, 202, 208; Hinchman v. Paterson H. 198, 199. R. Co., 17 N. J. Eq. 76.

7 Mallow v. Hinde, 12 Wheat. 193, 199; Hunt v. Wickliffe, 2 Pet. 201, 215.

8 Rule 52.

10 Fisher v. Shropshire, 147 U. S. 133, 145.

§ 62. 1 Cuff v. Platell, 4 Russ. 242; King of Spain v. Machado, 4 Russ

9 Harrison v. Rowan, 4 Wash. C. C. 225; Story's Eq. Pl., § 544.

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