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enjoin them and all similarly interested from suing to recover excessive freight charges.21

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.22 It has been said that this would be the rule here.2 23

Under the former Equity Rules,24 it was said that the doctrine did not apply to members of unincorporated trades' unions.25 § 117. Omission of parties 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.” 1 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

21 St. Louis, Iron Mountain & Southern Railway Company v. McKnight et al., Railroad Commissioners of the State of Arkansas, et al., 244 U. S. 368.

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

28 Wallace v. Adams, 204 U. S. 415, 425, 51 L. ed. 547, 552; Chisolm v. Caines, 121 Fed. 397, 400. Cf. U. S. v. Old Settlers, 148 U. S. 427, 480, 37 L. ed. 509, 529.

24 Eq. Rule 48, of 1842.

25 See McArthur v. Scott, 113 U. S. 340, 395, 28 L. ed. 1015, 1032. Am. Steel & Wire Co. v. Wire Draw ers' & Dye Makers' Union, 90 Fed 598; Irving v. Joint District Coun. cil, etc., of United Brotherhood of Carpenters, etc., 180 Fed. 896. But see infra, §§8 276, 284, 295.

$117. 1 Judge Dwight Foster in Palmer v. Stevens, 100 Mass. 461, 466.

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 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 non-joinder 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." 2 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 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 its discretion proceed in the cause without making such persons parties; and in such cases the decree shall be without prejudice to the rights of the absent parties." 4 "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." 5

2 U. S. R., § 737. See Connolly v. Wells, 33 Fed. 205; Wall v. Thomas, 41 Fed. 620; Greenhall v. Carnegie Tr. Co., 180 Fed. 812.

3 Shields v. Barrow, 17 How. 130, 141, 15 L. ed. 158, 161.

4 Eq. Rule 39. This modifies the

language of Eq. Rule 47, of 1842, by omitting the words "6 necessary or" before the word "proper.”

5 Simms v. Guthrie, 9 Cranch, 19, 3 L. ed. 642; Mr. Justice Curtis in Shields v. Barrow, 17 How. 130, 139, 15 L. ed. 158, citing Clearwater v.

"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 subject-matter of the litigation, in order to make a decree that will prevent the necessity of a subsequent appeal to its aid. This 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.7 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.

Meredith, 21 How. 489, 16 L. ed. 201.

6 § 110, supra.

7 Mr. Justice Curtis in Shields v. Barrow, How. 130, 139, 15 L. ed. 158. See Chadbourne v. Coe, 51 Fed. 479; Lion Traction Co. v. Bull Traction Co., C. C. A., 231 Fed. 156, 160. This text was cited with approval by Killitts, J., in Cady v. Barnes, 208 Fed. 359, 360, 361.

8 Federal Mining & Smelting Co. v. Bunker Hill & Sullivan Mining & Concentrating Co., 187 Fed. 474. 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

Thus where a bill was filed

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 is 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

for the construction of a will, an account by the executrix, and a declaration that certain heirs had abandoned their rights in a part of the estate, in the absence of one of the heirs the court took jurisdiction so as to grant all the relief prayed except that which affected him.

§ 118. 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. When 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; 3 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.5 A person against whom an injunction is sought,

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 subject-matter, which may be conveniently settled in the suit, and thereby prevent further litigation, he may be a party or not at the option of the complainant.'' Williams v. Brownhead, 19 Wall. 563, 571, 22 L. ed. 184, 187. See Chadbourne v. Coe, 51 Fed. 479.

9 Waterman V. Canal-Louisiana Bank & Tr. Co., 215 U. S. 33, 49, 54 L. ed. 80, 86.

$118. 1 Simms V. Guthrie, 9 Cranch, 19, 25, 3 L. ed. 642, 644; Wormley v. Wormley, 8 Wheat. 421, 451, 5 L. ed. 651, 659; Boon's Heirs v. Chiles, 8 Pet. 532, 8 L. ed. 1034; Union Bank of Louisiana v. Stafford, 12 How. 327, 13 L. ed. 1008;

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New Orleans Canal & Banking Co. v. Stafford, 12 How. 343, 13 L. ed. 1015.

2 Wormley v. Wormley, 8 Wheat. 421, 451, 5 L. ed. 651, 659; Removal Cases, 100 U. S. 457, 25 L. ed. 593; Pacific R. Co. v. Ketchum, 101 U. S. 289, 25 L. ed. 932; Walden v. Skinner, 101 U. S. 577, 25 L. ed. 963; Harter v. Kernochan, 103 U. S. 562; supra, § 42.

3 Wormley v. Wormley, 8 Wheat. 421, 5 L. ed. 651; Taylor v. Holmes, 14 Fed. 499. But see Watts v. Waddle, 1 McLean, 200.

4 Pacific R. Co. v. Ketchum, 101 U. S. 289, 298, 25 L. ed. 932, 936.

5 Simms v. Guthrie, 9 Cranch, 19, 25, 3 L. ed. 642, 644; Boon's Heirs v. Chiles, 8 Pet. 532, 8 L. ed. 1034; Union Bank of Louisiana v. Stafford, 12 How. 327, 13 L. ed. 1908; New Orleans Canal & Banking Co. v. Stafford, 12 How. 343, 13 L. ed.

unless he consents thereto, cannot be omitted." When a suit is brought to recover the possession of real or personal property the person in possession is not a formal party.7 Where policy holders sued to enforce their rights against assets transferred to insurance companies, with whom they had not contracted, and the bill also prayed relief against funds deposited by some of the corporation defendants with the State auditor; it was held that his absence would not prevent the grant of the rest of the relief which the complainants sought.8

§ 119. 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 rights.1

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

1015; Walden v. Skinner, 101 U. S. 577, 588, 25 L. ed. 963, 967; Bacon v. Rives, 106 U. S. 99, 27 L. ed. 69; Jackson v. Jackson, C. C. A., 175 Fed. 710, 717.

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

7 Mass. & So. Const. Co. v. Cane Creek Tp., 155 U. S. 283, 39 L. ed. 152.

8 Watson v. National Life & Tr. Co., C. C. A., 162 Fed. 7.

§ 119. 1 Cameron v. McRoberts, 3 Wheat. 591, 4 L. ed. 467; Mallow v. Hinde, 12 Wheat. 193, 6 L. ed. 599; Gridley v. Wynant, 23 How. 500, 16 L. ed. 411; Horn v. Lockbart, 17 Wall. 570, 21 L. ed. 657; Nesmith v. Calvert, 1 Woodb. & M. 34. This section in the fourth edition is cited with approval in Cady v. Barnes, 208 Fed. 350, 369-361, per Killits, J.

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2 Parsons v. Howard, 2 Woods, 1, 5; Heath v. Erie Ry. Co., 8 Blatehf. C. C. 345; Hazard v. Durant, 19 Fed. 471, 476; Plume & A. Mfg. Co. v. Baldwin, 87 Fed. 785; Bay State Gas Co. v. Rogers, 147 Fed. 557, where it was not charged that the omitted trustees had shared in the money, as to which an accounting was prayed. Williams v. Brady, 232 Fed. 740. But see Wall v. Thomas, 41 Fed. 620.

3 Parsons v. Howard, 2 Woods, 1, 5; Heath v. Erie Ry. Co., 8 Blatchf. 347.

4 Payne v. Hook, 7 Wall. 425, 19 L. ed. 260. See, however, West v. Randall, 2 Mason, 181; Wisner v. Barnet, 4 Wash. C. C. 631, 642; Greene v. Sisson, 2 Curtis, 171.

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