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justice by converting the general rule of the court into an obstruction to the ordinary proceedings. The court defeats the fraud by refusing to enforce the general rule."2 Lord Hardwicke said upon this subject: "Where a mortgagee who has a plain redeemable interest makes several conveyances upon trust, in order to entangle the affair, and to render it difficult for a mortgagor or his representatives to redeem, there it is not necessary that the plaintiff should trace out all the persons who have an interest in such trust, to make them parties." 3 This rule might, perhaps, be extended to a case, where an attempt had been made to defeat the jurisdiction of the Federal court by a merely colorable conveyance to a person of the same citizenship as the complainant.4

§ 122. When a person consents to the relief sought. A person who consents to the relief sought, when it is so stated in 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.3 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.4 § 123. 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

2 Calvert on Parties (2d ed.), 61. 3 Yates v. Hambly, 2 Atk. 237, 238.

4 See Union Bank of Louisiana v. Stafford, 12 How. 327, 13 L. ed. —; New Orleans Canal & Banking Co. v. Stafford, 12 How. 343, 13 L. ed. 1015; Leather Manufacturers' Bank v. Cooper, 120 U. S. 778, 781, 30 L. ed. 816, 818.

§ 122. 1 Mechanics' Bank v. Seton, 1 Pet. 299, 306, 7 L. ed. 152, 155; Calvert on Parties (2d. ed.),

Book I, ch. V., 69, 84; Gas Securi-
ties Co. v. Antero & Lost Park Res-
ervoir Co., C. C. A., 259 Fed. 423.
2 Calvert on Parties (2d ed.),
Book I, ch. 69; Kirk v. Clarke,
Prec. in ch.. 275; Harvey v. Corrie,
4 Russ. 35, 55; Bawtree v. Watson,
3 M. & K. 339, 340.
3 Vattier v. Hinde, 7 Pet. 252.
258, 8 L. ed. 675, 677.

4 Rylands v. Latouche, 2 Bligh, 579.

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-atlaw 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."2 Such a waiver cannot, however, be made unless it can be without prejudice to those against whom the bill is filed.3

§ 124. 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

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

§ 126. 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

§ 123. 1 Williams v. Williams, 9 Mod. 299. See also Wilson v. Todd, 1 M. & C. 42, 46; Mechanics' Bank v. Seton, 1 Pet. 299, 306, 7 L. ed. 152, 155; 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; Poole v. West Point Butter & Cheese Ass'n, 30 Fed. 513.

§ 124. 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, 13 L. ed. 1008; New Orleans C. & B. Co. v. Stafford, 12 How. 343, 13 L. ed. 1015.

§ 125. 1 Alger v. Anderson, 78 Fed. 729, 734. $126. 1 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.),

§ 127. 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." 2 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 the parties is, however, 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.5

3

§ 128. 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

Book I, ch. V. See Reed v. Bennett, 55 N. J. Eq. 587, 37 Atl. 75; supra, § 113.

§ 127. 1 Cameron v. McRoberts, 3 Wheat. 591, 4 L. ed. 467; Elmendorf v. Taylor, 10 Wheat. 152, 6 L. ed. 289; Lewis v. Darling, 16 How. 1, 14 L. ed. 819; Barney v. Baltimore, 6 Wall. 280, 18 L. ed. 825; Payne v. Hook, 7 Wall. 425, 19 L. ed. 260; Barney v. Latham, 103 U. S. 205, 26 L. ed. 514; 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.

Fed. Prac. Vol. I-47

2 Mr. Justice Davis in Payne v. Hook, 7 Wall. 425, 432, 19 L. ed. 260, 262.

3 Mr. Justice Davis in Payne v. Hook, 7 Wall. 425, 432, 19 L. ed. 260, 262. See S. C. as Hook v. Payne, 14 Wall. 252, 20 L. ed. 887; infra, § 258.

4 Caldwell v. Taggart, 4 Pet. 190, 7 L. ed. 828; Robertson v. Carson, 19 Wall. 94, 22 L. ed. 178; Hoe v. Wilson, 9 Wall. 501, 19 L. ed. 762; Railroad Co. v. Orr, 18 Wall. 471, 21 L. ed. 810.

5 U. S. v. Union Pacific R. Co., 98 U. S. 569, 25 L. ed. 143.

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.3

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 very small, or has been created for the purpose of depriving the court of jurisdiction.5

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.6

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.7

§ 128. 1 §§ 110, 120.

2 §§ 110, 111.

3 §§ 113-116.

488 42, 118, 119.

5 §§ 120, 121, 124.

6 §§ 122, 123, 124.
7 § 127.

3

§ 129. Objections for want of parties. An objection for want of parties may be taken by motion to dismiss1 or by answer,2 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." Unless the defect is jurisdictional or the omitted parties are indispensable, it is waived if not specifically raised in the court of first instance. If the parties omitted are indispensable the court even upon appeal may dismiss the bill of its own motion."

The objection should specify by name or description the omitted parties. It should state the names, if known, of all the persons for whose omission the defendant claims that the bill is defective, and the reasons why their presence is required in the suit.10 It should also state that they are living, and, unless they are in every aspect of the bill indispensable parties thereto, that they are within the jurisdiction of the court.11

"If a defendant shall, at the hearing of a cause, object that a suit is defective for.want of parties, not having by motion or answer taken the objection and therein specified by name or description the parties to whom the objection applies, the court shall be at liberty to make a decree saving the rights of the absent parties." 12 "Where the defendant shall by his

§ 129. 1 Eq. Rules 29, 44. Hyams v. Old Dominion Co., 204 Fed. 681. 2 Eq. Rules 29, 44. 3 Eq. Rule 44.

4 Hoe v. Wilson, 9 Wall. 501, 19 L. ed. 762. It has been held that, at common law, a defendant may, under a plea of the general issue, raise the objection that a necessary party has not been joined. Cochran v. Brannan, 196 Fed. 219. But see Iron Molders' Union No. 125 of Milwaukee, Wis. v. Allis-Chalmers Co., C. C. A., 20 L.R.A. (N.S.) 315, 166 Fed. 45.

5 See Eq. Rule 39. Keller v. Ashford, 133 U. S. 610, 626, 33 L. ed. 667, 674.

6 International News Service V. Associated Press, 248 U. S. 215.

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