Sometimes corporations are included as defendants in a bill when they have no interest in the matter in question, but stand merely as managers of public stocks, the management of which has been intrusted to them by different acts of the legislature. Such corporations may be made parties to a suit relating to any public stock standing in their books for the purpose of compelling or authorizing such companies to suffer a transfer of such stock to be made in their books, and also praying an injunction against their permitting such transfer.7

4028. The incapacity to sue in equity is either absolute-that is, while it continues it wholly disables the party to sue-or partial, or such as disables the party from suing without the assistance of another.

4029. The principal, if not the only, absolute disability is the case of alienage, but a distinction must be observed between alien friends and alien enemies. An alien friend is not incapacitated from suing, but an alien enemy, in general, is incapable to bring a suit in equity while he remains an enemy. The reason for this distinction is very apparent. When an alien comes into the country he comes under the express or implied agreement of the government, while he acknowledges its authority and bears toward it a temporary allegiance, to be protected in his person or his rights. This protection would be but illusory if he had not the right to sue; on the contrary, an alien enemy, who sets himself against the government by adhering to the public enemies, is not under the protection of the courts of the government he would wish to destroy.8

An exception to this general rule, that an alien enemy cannot sue, may possibly exist in a case where an alien enemy is sued, and it is required in his defence that he should file a bill of discovery. If the law allows him to be sued, it would seem but simple justice to allow him to defend himself. But if the bill of discovery was to be used abroad, then the objection would lie with as much force to a bill of discovery as to an original suit.'

An alien enemy is disabled to sue only while the war continues, for after peace has been made his right to sue returns; it was only suspended by the state of hostility between his government and our own.10

Although an alien friend may sue, it must be understood that his right must be limited in this, that he has a right to the subject matter of the suit. In some of the states of the Union he cannot hold land; he is then incapable to bring a suit for the recovery of land, or on any demand of a mixed nature partly real and partly personal."

4030. A foreign sovereign, acknowledged by our government to be such, and not at war with this country, may sue in our courts when he has a just right. Indeed, the constitution of the United States gives jurisdiction to the courts of the United States, where foreign states are parties.13 The Cherokee nation of Indians not being independent, and acknowledged as such by our government, in the sense in which the words foreign state are used in the constitution, cannot maintain an action in the courts of the United States. But

7 Temple v. Bank of England, 6 Ves. Ch. 770.

8

14

Daubigny v. Davallon, 2 Anstr. Exch. 467; Mumford v. Mumford, 1 Gall. C. C. 366. See Daubigny v. Davallon, 2 Anstr. Exch. 467; Albretcht v. Sussman, 2 Ves. & B. Ch. Ir. 324.

12

King of Spain v. Machado, 4 Russ. Ch. 238; Hullet v. King of Spain, 1 Dow, Parl. Cas. 169; 2 Bligh, Hou. L. N. s. 51; Columbian Government v. Rothschild, 1 Sim. Ch. 94. See The Nabob of Carnatic v. The East India Company, 1 Ves. Ch. 371; 3 Brown, Ch. 292; City of Berne v. Bank of England, 9 Ves. Ch. 347; Dolder v. Bank of England, 10 Ves. Ch. 352.

13 King of Spain v. Oliver, 2 Wash. C. C. 429.

14 Cherokee Nation v. The State of Georgia, 5 Pet. 1.

this right of a foreign state or government exists only during a state of peace; by war, this right is of course suspended.

4031. A foreign corporation, either private or municipal, when not belonging to a public enemy, may sue in equity, and it is usual to maintain suit when brought by such corporations.15 A corporation belonging to a public enemy is incapable of suing.

4032. Partial incapacity, it has been observed, disables the party to sue without the assistance of another. This is the case in relation to infants, to married women, and to idiots and lunatics.

16

4033. Infants are disabled from bringing suits, because they are generally incapable of judging whether it is for their advantage that such suits should be instituted, and, also, because they cannot bind themselves and become responsible for costs. But still their rights are protected. are protected. When an infant has a right, and a guardian has been appointed by competent authority to take care of his person and property, a suit may be brought in the name of the infant by his guardian, who must be named in the bill, not as his guardian, but as his next friend, and who, in consequence, becomes responsible for costs. When no such guardian has been appointed, any person who will undertake to bring the suit in the name of the infant, and assumes to be his next friend, or, as the technical phrase is, his prochein ami, may bring suit; in such case he must be named in the bill as such, and by that means he will be responsible for costs." It is not necessary, in a case of this kind, that the infant should be consulted; the suit may be brought without his knowledge. Indeed, a bill has been filed, and an injunction granted, to stay waste at the suit of an infant in ventre sa But when there is reason to apprehend that the next friend has acted from improper motives, upon a proper application the court will refer the matter to a master, with directions to ascertain whether such suit is for the benefit of the infant, and if the master reports it is not for his benefit, of which the court are satisfied, the proceedings will be stayed." As the infant need not be consulted, there may be two suits brought by two different persons, who are each acting as next friend to the infant. In such case, the court will direct an inquiry to be made to ascertain which of the two suits is more for the benefit of the infant, and, upon that appearing, will stay the proceedings on the other.20

mere.

18

4034. Before commencing a suit in the capacity of next friend, the party ought to reflect whether he and his wife are witnesses to sustain the bill, for, if either of them can be a witness, he ought to procure some other person to act as prochein ami, because the next friend, being liable for costs, cannot be examined. If, however, he should discover, after the suit has been brought, that he is a witness, the court will permit him to substitute a responsible person in his place.

15 Society v. Wheeler, 2 Gall. C. C. 105; Society v. New Haven, 8 Wheat. 464; Silver Lake Bank v. North, 4 Johns. Ch. N. Y. 370.

16 It seems doubtful whether an infant can sue in chancery by his guardian; but he must defend by guardian, either a general guardian or one appointed ad litem. See 1 Sharswood, Blackst. Comm. 464; Coke, 2d Inst. 261; Wyatt, Pract. Reg. Ch. 212; Chandler v. Vilett, 2 Saund. 117, f.; Story, Eq. Pl. 58, note; Bradley v. Amidom, 10 Paige, Ch. N. Y. 235; Mitford, Eq. Pl. 29.

17 It has been held, however, in this country that in courts of law the prochein ami, or next friend, is not liable for costs. Crandall v. Slaid, 11 Metc. Mass. 288; Brown v. Hull, 16 Vt. 673.

18 Luttrel's Case, cited Prec. Chanc. 50.

10 Fulton v. Rosevelt, 1 Paige, Ch. N. Y. 178.

20 Cooper, Eq. Pl. 28, 29; Mitford, Eq. Pl. 25, 27; 1 Daniell, Chanc. Pract. 95.

21

Mitford, Eq. Pl. 26.

4035. When the suit has been commenced during infancy, and the infant becomes of age, and afterward he carries on the suit, by so doing he adopts the cause, relieves his next friend from all responsibility for costs, and becomes liable himself.22

4036. A married woman being under the protection of her husband, and her separate existence being for most purposes suspended, a suit respecting her rights is usually instituted by them jointly, and when it is so brought, it is considered the suit of the husband alone, so that the decree made in such suit is not binding upon the wife in any future litigation; 23 and for this reason it is said that if after her husband's death she proceed with the suit, she shall not be liable for the anterior costs.24

4037. But to this general rule, that the husband must be joined in all suits instituted in chancery on the rights of the wife, or against her, there are several exceptions, among which may be mentioned the following:

When the husband is civiliter mortuus, the wife is looked upon as restored to her rights and capacity as a feme sole, and may sue alone.25

When a married woman claims a right in opposition to the rights claimed by her husband, the husband being the person, or one of the persons, to be complained of, the complaint cannot be made by him. The wife, being under the disability of coverture, cannot sue alone, and yet cannot sue under the protection of her husband; she is obliged to seek other protection, and that the law affords her by enabling her to procure a next friend, who is also named in the bill,26 who may file the bill in her name. Unlike the case of an infant, the next friend of a married woman cannot bring a suit without her consent, but, like the case of an infant, he will be responsible for costs.27

On the other hand, the husband may sue the wife in equity for the purpose of enforcing his own marital rights against her property, however those rights may have arisen.28 In such case she may, by leave of court, defend a suit separately from her husband without the protection of another; 29 not only when she claims in opposition to her husband or lives separately from him, but when he disapproves of the defence she wishes to make, she may obtain an order to defend the suit separately. Indeed, when the husband is plaintiff in a suit and makes his wife a defendant, he treats her as a feme sole, and she may therefore answer and defend separately without an order of the court for the purpose.

31

30

4038. The care of lunatics is vested in courts of equity in those states where these courts exercise the same jurisdiction as does the court of chancery in England. In other states this guardianship is vested in their several courts, which by act of assembly are authorized to have a general superintendence.

When the rights of a lunatic, or person non compos mentis, are to be secured by a suit in chancery, the bill is brought by their committee or guardian, and when they are sued, they are defended by the same persons. This is generally regulated in detail by the local statutes.

22

Cooper, Eq. Pl. 29; Mitford, Eq. Pl. 25-27.

23 Grant v. Van Schoonhoven, 9 Paige, Ch. N. Y. 255. See 8 Sim. Ch. 551.

24 Cooper, Eq. Pl. 29.

25

Cooper, Eq. Pl. 30, 31; Matter of Deming, 10 Johns. N. Y. 242.

26 Griffith v. Hood, 2 Ves. Ch. 452. See Troup v. Wood, 4 Johns. Ch. N. Y. 228.

"Mitford, Eq. Pl. 28; Griffith v. Hood, 2 Ves. Ch. 452; Cooper, Eq. Pl. 30; 1 Newland, Chanc. Pract. 53.

28 Carnel v. Buckle, 2 P. Will. Ch. 243; Acton v. Pearce, 2 Vern. Ch. 480; Ex parte Strangeways, 3 Atk. Ch. 478; 1 Fonblanque, Eq. B. 1, c. 2, ¿ 6, note (n).

29 Viner, Abr. Baron and Feme, I, a, 20.

30 Mitford, Eq. Pl. 95; Cooper, Eq. Pl. 30, 31.

31 Ex parte Strangeways, 3 Atk. Ch. 478.

In the absence of statutory regulations, and according to the settled practice in the English courts as adopted in this country, when a bill is filed for the benefit of a lunatic, the committee must be joined with the lunatic or the bill must be filed in the name of the lunatic by his committee. It is not proper for the committee to bring the suit in his own name, merely describing himself as the committee of the lunatic.32

4039. Having considered in the preceding sections who may sue or be sued in equity, let us next consider who are the proper and necessary parties to a bill; a matter of great importance, for if proper parties are wanting, inconvenience and delay, at least, if not defeat, will in some cases be the result.

33

It is the constant aim of a court of equity to do complete justice by deciding upon and settling the rights of all persons interested in the subject of the suit, to make the performance of the order of the court perfectly safe to those who are compelled to obey it and to prevent future litigation. For this purpose, with some exceptions which will be noticed, all persons materially interested in the subject ought to be parties to the suit, plaintiffs or defendants, however numerous they may be.34

The natural course to be pursued in the examination of this rule is to consider, first, what persons whose rights are concurrent with those of the party instituting the suit ought to be joined with him; second, what persons are interested in resisting the plaintiff's claim; third, the joinder of parties who have no interest in the suit; fourth, the objections for want of proper parties.

4040. As a general rule, all parties who have an interest in the subject matter of the suit must join as plaintiffs, but for various causes there are some exceptions to the rule. This subject will be divided by considering, first, the general rule; second, the exceptions.

4041. In proceedings in the courts of law, we may remember, no persons are required, or indeed can be plaintiffs other than those who have a direct and immediate interest in the subject matter of the action, and whose interests are strictly legal. All other persons, who have only an equitable or remote interest, cannot be joined, and if they are joined, the fault will be fatal; for example, at law the heir and the executor cannot be joined, although each may have an interest in the matter in controversy. In equity, on the contrary, they may join, and not unfrequently they must both be made parties.*

36

It may be laid down as a general rule that those persons are necessary parties, when no decree can be made respecting the subject matter of litigation until they are before the court, either as plaintiffs or defendants; or where the defendants, already before the court, have such an interest in having them made parties, as to authorize those defendants to object to proceeding without them.37 Still it is not easy to say what is the nature of that interest, nor how far it is liable to be affected by the decree.38

32 Gorham v. Gorham, 3 Barb. Ch. N. Y. 24.

33 Mitford, Eq. Pl. 144; Cooper, Eq. Pl. 33; Story, Eq. Pl. 72; Knight v. Knight, 3 P. Will. Ch. 333.

34 Hickock v. Scribner, 3 Johns. Cas. N. Y. 311; Joy v. Wirtz, 1 Wash. C. C. 517; Caldwell v. Taggart. 4 Pet. 190; Wendell v. Van Rensselaer, 1 Johns. Ch. N. Y. 349; Calvert, Parties, 10; West v. Randall, 2 Mas. C. C. 190.

35 Pierce v. Faunce, 47 Me. 507; Birdsong v. Birdsong, 2 Head, Tenn. 289. 36 Knight v. Knight, 3 P. Will. Ch. 333, Cox's note, A.

37 Bailey v. Inglee, 2 Paige, Ch. N. Y. 279; 1 Daniell, Chanc. Pract. 284, 285; West v. Randall, 2 Mas. C. C. 181; Caldwell v. Taggart, 3 Pet. 190; Trescot v. Smith, 1 M'Cord, Eq. So. C. 301; Wendell v. Van Rensselaer, 1 Johns. Ch. N. Y. 340; Duncan v. Mizner, 4 J. J. Marsh. Ky. 447; Crocker v. Higgins, 7 Conn. 342; Boughton v. Allen, 11 Paige, Ch.

N. Y. 321.

38 See Story, Eq. Pl. 136, et seq., for the details on this subject. See also 1 Daniell, Chanc. Pract. 284.

The cases which fall under this general rule, that all the parties must, when practicable, be brought before the court, may be classed into the following: those relating to a trust estate, where the property has been assigned, when the interest is joint, those relating to legacies, to accounts, to administration, to mortgages, and those in which the government is a party.

4042. Upon this principle, that all parties having an interest must join, when a plaintiff, who has only the equitable right, brings a suit, it is necessary that the party having the legal estate should join, for if he were not, his legal right would not be barred by the decree.39

For the same reason it is that in all suits by persons claiming under a trust, the trustee, or other person in whom the legal estate is vested, is required to be a party to the proceeding." And this rule, which requires the person who holds the legal estate to be brought before the court in suits relating to trust property, applies equally to all cases where the legal right to sue for the thing demanded is outstanding in a different party from the one claiming the beneficial interest; for example, where a bill is filed for the specific performance of a covenant under hand and seal of one for the benefit of another, the covenantee must be a party to a bill by the person for whose benefit the covenant was intended against the covenantor."

A distinction must be observed, in the cases of a contract made by an agent, between a contract under seal and one not under seal. In the latter it is not requisite that the agent should be made a party to a bill, because even at law the principal can interpose and supersede the right of his agent by claiming to have the contract performed to himself, although made in the name of the agent, 42

4043. When there is more than one trustee, and a suit is required to enforce a trust or to set it aside, all the trustees should be made parties; for the same reason, when there are several cestuis que trust, if either is to be made party they ought all to be joined in a suit respecting their common interest; for if this rule should not be observed, there must be several suits to enforce the rights of each.43

But in suits for the removal of a trustee, it is not necessary that all the cestuis que trust should join as complainants."

4044. In case of the death of any of the trustees, the survivor or survivors must be made parties; and if all the trustees are dead, and the estate be one of inheritance, the heir, or other representative of the realty of the survivor, should be made a party. But when the trust is of a term, or other chattel interest, which does not descend to the heir, the personal representative of the survivor is to be made a party. And if the trustee has assigned his trust, the assignee must be made a party in his stead, unless he, the trustee, has committed a breach of trust, when he may be joined."

45

4045. But there are several exceptions to this general rule, the principal of which are the following:

When the cestui que trust has a separate interest, as an aliquot part of the

39 1 Daniell, Chanc. Pract. 286.

40 Williams v. Williams, 4 Madd. Ch. 186. But a trustee need not be made a party after he has fully executed the trust, and the property has been delivered to the person authorized to receive it. Swan v. Ligan, 1 M'Cord, Eq. So. C. 231.

41 Cooke v. Cooke, 2 Vern. Ch. 36.

42 Before, 1328; Lyon v. Tevis, 8 Iowa, 79.

43 Hamm v. Stevens, 1 Vern. Ch. 110; Lowe v. Morgan, 1 Brown, Ch. 368; In re Chertsey Market, 1 Price, Exch. 261. But see Fleming v. Gilmer, 35 Ala. N. s. 62.