it will be sufficient to make his personal representative a party, but Owner of Infor any arrears after his death, the heir must be a party (s) (1). heritance. modus. The same rule applies to all cases where the jurisdiction is To establish a drawn from the Courts of Common Law, in order to establish a custom; right against a person having a limited estate in land or other hereditaments; and it is in such cases always held necessary to have the owner of the inheritance before the Court. Thus, where a bill was filed to establish a custom whereby the owners and occupiers of certain lands were obliged to keep a bull and a boar for the use of the inhabitants of the parish, it was held that a custom which binds the inheritance of lands can never be established in a Court of Equity unless the owners of the inheritance are parties, and that the master and fellows of Queen's College, who were the owners, ought to have been there (t). And so, where a man pre- to establish a fers a bill to establish a modus against a lessee of an impropriator, he must make the owner of the impropriation a party; for this Court will not bind the inheritance of any person, unless such person is a party (u). Upon the same principle, where a bill is filed to establish a modus, or customary payment, against an ecclesiastical rector, the patron and ordinary are necessary parties (z), the Ordinary, where necesformer because the right of presentation which belongs to him would be affected by the decree, the latter because his presence in the suit protects the right of the church against collusion (y). In Hales v. Pomfret (z), Lord Chief Baron Richards said that he had never known an instance of a bill to establish a modus, to which the ordinary was not a party, being brought to a hearing without its being ordered to stand over for the purpose of making him a party by amendment (a). Upon the same ground, where a bill was filed to establish a modus against a dean and chapter, as impropriators, the ordinary and patron were considered necessary parties (b). sary party. It is to be observed, that to render the owner of the inheritance Owner of innecessary, the object of the suit must be to bind the inheritance; heritance, not if that is not the case, and the relief sought is merely against the present incumbent, the owner of the inheritance, if made a party, (s) Weston v. Bowes, 9 Mod. 309. (t) Spendler v. Potter, Bunb. 181. (u) Glanvil v. Trelawney, Bunb. 70. (x) Gordon v. Simpkinson, 11 Ves. 509. (y) Cook v. Butt, Mad. & Geld. 53. (2) Daniell, Ex. Rep. 142. (a) As to making an impropriator a party to a bill for tithes by a vicar, or a vicar a party to a bill by an impropriator, vide ante, p. 279. (b) De Whelpdale v. Milburn, 5 Price, 485. (1) Story Eq. Pl. § 181. necessary. Owner of Inheritance. may demur (c); and so, if in a bill for an account of tithes against an occupier, the owner of the land is made a party (d), he is entitled to have the bill dismissed against him, though if he mixes in merely posses- the defence, &c., the dismissal will be without costs (e). Where suit sory. But for tithes may be brought before Court. Defendant sued for tithes by a lessee, cannot make lessor a defendant to a cross bill. It seems, from the judgment of the Court of Exchequer, as delivered by Sir William Alexander, C. B., in the case of Day v. Drake (ƒ), that a parson suing for tithes may, if he please, make the owner as well as the occupier of the land in respect of which the tithe is claimed, a party to the suit, although the occupier could not have insisted that, of necessity, he ought to have been brought before the Court. It must depend, however, upon a great variety of circumstances what the effect of making him a party may be (g); and if the person claiming tithes chooses to make the landowner a party, he must do it at the hazard of not receiving the costs, though he should get a decree against the occupier, or of paying them, according to the circumstances of the case. In the above case of Day v. Drake, the owner having been made a party to the suit, on the allegation that he had got certain documents into his possession, from his tenants and other persons, for the purpose of preventing the plaintiff from obtaining evidence from them in support of his demand, had put in a demurrer to the discovery sought by the bill, and the demurrer was overruled, on the ground that the owner ought to have denied the allegations in the bill. The owner afterwards put in a less extensive demurrer to that part of the bill which required a discovery from him as to his title, &c., and an answer denying the allegations that he had taken possession of the documents, &c., for the purpose of preventing the plaintiff from obtaining evidence in support of his claim against the occupiers; and the second demurrer was, upon argument, also overruled, principally upon the ground above stated, viz. that a person suing for tithes has a right, if he choose to incur the risk, to make an owner a party to the suit, although the defendant has no right to insist upon his being so. It is to be observed, however, that although, in a bill by a party entitled to tithes, he may make the owner as well as the occupier a party, yet if the party entitled, sue only in the character of lessee, the occupier has no right to file a cross bill against the lessor for a (c) Williamson v. Lord Lonsdale, Daniell's Ex. Rep. 171. (d) Ibid. (f) 3 Sim. 64 82. (g) Vide Petch v. Dalton, 8 Pri. 9; Leathes v. Newitt, 8 Pri. 562; Ben (e) Markham v. Smith, 11 Price, nett v. Skeffington, 4 Pri. 143; Mark 126. ham v. Smith, 11 Price, 126. discovery and production of documents, and that a demurrer to a Tenants and Occupiers. bill of this nature was allowed (h). estate. Where the object of a bill is to establish a right to the payment In suits to esof a certain gross sum in lieu of the tithes of a certain portion of tablishe a payment in land, the owner as well as the occupier is necessary, though it lieu of tithes seems that in a case of this description, where the object of the of a particular bill was to establish a right to the payment of 401. per annum, which had been decreed in the time of Charles the First (i) out of Occupies not particular lands; it was held not necessary to make the occupiers necessary. parties, because although the decree in such case could only be against the landowners who were before the Court, yet that would affect lands. And it was decreed that a commission should go to inquire into and ascertain the value of the lands, the owners and occupiers' names, and what proportion of the 407. per annum each tenement ought to pay. In the case of Penn v. Lord Baltimore (k), which was a suit for In suits to settle boundaries, a specific performance of an agreement respecting the boundaries unnecessary. of two provinces in America, it was considered unnecessary to make the planters, tenants, or inhabitants within the districts, parties to the suit. The objection taken was upon the ground that their privileges, and the tenure and law by which they held, might not be altered without their consent; but Lord Hardwicke overruled the objection, saying, "Consider to what this objection goes, in lower instances; in the case of manors and honors in England which have different customs and bye-laws frequently; yet, though different, the boundaries of these manors may be settled in suits between the lords of these manors without making the tenants parties, or may be settled by agreement, which this Court will decree, without making the tenants parties; though in case of fraud, collusion, or prejudice to the tenants, they will not be bound." And, in general, it may be stated as a rule, that occupying ten- Also occupyants under leases, or other persons claiming under the possession suits for land. ing tenants in of a party whose title to real property is disputed, are not deemed necessary parties; though if he had a legal title, the title which they may have gained from him cannot be prejudiced by any decision on his rights in a Court of Equity in their absence; and though, if his title was equitable merely, they may be affected by a decision against that title. Sometimes, however, if the existence Decree withof such rights is suggested at the hearing, the decree is expressly out prejudice to their rights. (h) Tooth v. The Dean and Chapter of Canterbury, 3 Sim. 49. (i) Cuthbert v. Westwood, Gilb. Eq. Rep. 320; Vin. Ab. tit. Party, B. (k) 1 Ves. 244-9. Manor. Lord of the made without prejudice to those rights, or otherwise qualified according to circumstances. If, therefore, it is intended to conclude such rights by the same suit, the persons claiming them must be made parties to it; and where the right is of a higher nature, as a mortgage, the person claiming, as we have seen, is usually made a party (7). And where a tenant in common had demised his undivided share for a long term of years, the lessee was held a necessary party to a bill for a partition, because he must join in the conveyance, and his lessor was ordered to pay his costs (m). Secus, in cases of partition. Lord of manor necessary, in questions of copyhold. Necessary in suits for a sur render of yholds for lives. itance. cop The same principle which renders it necessary that the owner of the inheritance should be before the Court in all cases in which a right is to be established against the inheritance, requires that in cases where there is a dispute as to whether land in the occupation of a defendant is freehold or copyhold, the lord of the manor should be a party. Thus, where a plaintiff, by his bill, pretended a title to certain lands as freehold, which lands the defendant claimed to hold by copy of court roll to him and his heirs, and prayed in aid the lord of the manor; but nevertheless, the plaintiff served the defendant with process to rejoin, without making the lord of the manor a party; it was ordered that the plaintiff should proceed no more against the defendant before he should have called the lord in process (n). For a similar reason it is held, that where a bill is brought for the surrender of a copyhold for lives, the lord must be made a party; because, when the surrender is made, the estate is in the lord, and he is under no obligation to regrant it; but it is otherwise in the case of copyholders of inheritance, there the lord need not be a party. Secus, of copyIt may be observed in this place, that the same rule which has holds of inher- been before laid down (o), with regard to the persons to be made parties as being interested in the inheritance of an estate, prevails equally in the case of adverse interests, as in that of concurrent interests with the plaintiffs: this rule is, that wherever the inheritance to a real estate is the subject-matter of the suit, the first person in being who is entitled to an estate of inheritance in the property, and all others having intermediate interests, must be defendants. Thus it is held necessary, in order to obtain a complete decree of foreclosure, in cases where the equity of redemption is (1) Lord Red. 175. (m) Cornish v. Gest, 2 Cox. 27. ry. Rep. 81; Vin. Ab. tit. Party, B. 254. Pl. 46. (0) Ante, p. 273, [274, and cases cited]. the subject of an entail, that the first tenant in tail of the equity Lord of the of redemption should be before the Court (p) (1). Manor. It appears to have been held formerly, that a decree of foreclosure First tenant in against a tenant for life would bar a remainder-man (q), but it is tail, in suits concerning now settled, that not only the tenant for life, but the person hav- realty. ing the next vested estate of inheritance, must be parties (r); and - either to foreclose; the same rule applies to all cases where a right is to be established, or a charge raised against real estates which are the subject of or to charge. settlement. vendor and A plaintiff, however, has no right to bring persons in the situa- Not in question of remainder-men before the Court in order to bind their tions between rights, upon a discussion whether a prior remainder-man, under purchaser. whom he claims, had a title or not, merely to clear his own title as between him and a purchaser. This was decided in Pelham v. Gregory (s), before Lord Northington; in which case the question arose on the title to certain leasehold estates, which were limited in remainder, after limitations to the Duke of Newcastle and his sons, to the first and other sons of Mr. Henry Pelham in tail, and to which the plaintiff, Lady Catherine Pelham, claimed to be absolutely entitled on the death of the Duke, as administratrix, to Thomas Pelham, the son of Mr. Henry Pelham, the first tenant in tail who had come into being. The plaintiff, in order to have this question decided against Lord Vane and Lord Darlington, who were subsequent remainder-men in tail, contracted to sell the estate, subject to the Duke's life estate, and to the contingency of his having sons, to the defendant Gregory, and brought a bill against him for a specific performance, to which she made Lord Vane and Lord Darlington parties; but Lord Northington dismissed the bill with respect to Lord Vane and Lord Darlington, and the reason his Lordship gave for dismissing the bill against the two latter, as expressed in his decree, was, "that they being remainder-men after the death of the Duke of Newcastle, if he should die without issue, their claims were not within his cognizance to determine, and the plaintiff had no right to bring them into discussion in a Court of Equity." From this decree there was an appeal to the House of Lords, and although they decreed |