trust property, and the others have no common interest in the object of the bill, the others need not be made parties."7

A general breach of trust by all the trustees renders them so far responsible jointly and severally that the cestui que trust may bring his suit against them all or either of them at his election."

In cases where the bill is so framed that it seeks an account of only so much of the trust fund as has come to the hands of a particular trustee, he may be sued alone, and the others are not properly made parties."

4046. When the subject matter of the suit has been assigned, as in the case of a chose in action, the assignor if living, or, if dead, his personal representatives should be a party; because a chose in action is not assignable at law, and it is considered good only in equity; the recovery in equity by the assignee would, therefore, be no answer to an action at law by the assignor, in whom the legal right to sue still remains, and who might exercise it to the prejudice of the party liable. The court of equity, in order not to do justice by halves, requires that he should be made a party, in order to make a final decree to bind all the parties.

50

In regard to the assignment of other subjects of property, it is not clear that the rule is so general. It is laid down by Judge Story as the rule that where the assignment is absolute and unconditional, leaving no equitable interest in the assignor, and the extent and validity of the assignment is not doubted or denied, and there is no remaining liability in the assignor to be affected by the decree, it is not necessary to make the latter a party.51

4047. In cases of joint claims and joint interests, it is a rule that all parties must join in bringing a suit in chancery. One joint tenant or tenant in common cannot sue alone in respect to any thing touching their common rights and interests.52 And this rule, that all who have a joint interest must be made parties, applies equally whether the subject matter of the suit be real or personal property. Thus, where a legacy is given to two jointly, one cannot sue for it alone, as in the case of a gift of a ship or a horse; though, when the legacies are several, each may sue for his own.

53

4048. When persons claim under titles inconsistent with that of the plaintiff, they should not be made parties to a suit, even though they are in a situation to molest the defendant, in the event of the plaintiff being unsuccessful in establishing his claim, and the rule is applicable to prohibit their being made parties as co-plaintiffs or as defendants.

4049. The general rule, that all parties in interest must be joined in a bill, applies to the case of legacies when it appears by the bill that there is a deficiency of assets, and also in the case where several legacies are given, which are to be increased or diminished according to the state of the funds."

55

But we

48 Walker v. Symonds, 3 Swanst. Ch. 75.

47 Smith v. Snow, 3 Madd. Ch. 10. 49 Fleming v. Gilmer, 35 Ala. N. s. 62. 50 Brace v. Harrington, 2 Atk. Ch. 235; Ray v. Fenwick, 3 Brown, Ch. 25; Cathcart v. Lewis, 1 Ves. Ch. 463. See Lewis v. Outon's Admr., 3 B. Monr. Ky. 453; Kelly v. Israel, 11 Paige, Ch. N. Y. 147; Mumford v. Sprague, 14 Paige, Ch. N. Y. 438; Dixon v. Buell, 21 Ill. 203.

51 Story, Eq. Plead. 153; Brace v. Harrington, 2 Atk. Ch. 235; Blake v. Jones, 3 Anstr. Exch. 651; Trecothick v. Austin, 4 Mas. C. C. 41; Miller v. Bean, 3 Paige, Ch. N. Y. 467; Day v. Cummings, 19 Vt. 496.

52 Cooper, Eq. Pl. 35; 1 Daniell, Chanc. Pract. 298; Story, Eq. Pl. 159; Broughton v. Allen, 11 Paige, Ch. N. Y. 321.

63 Haycock v. Haycock, 2 Chanc. Cas. 124; 1 Daniell, Chanc. Pract. 303.

54 Attorney General v. Tarrington, Hardr. 219; Lord Cholmondeley v. Lord Clinton, 2 Jac. & W. Ch. 135.

55 Brown v. Ricketts, 3 Johns. Ch. N. Y. 553. See Davoue v. Fanning, 4 Johns. Ch. N. Y. 199; Cromer v. Pinckney, 3 Barb. Ch. N. Y. 466; Pritchard v. Hicks, 1 Paige, Ch. N.

56

shall see that under the rule relating to numerousness one of the legatees may bring a suit in certain cases in his own name for himself and his co-legatees. When legacies are charged on the real estate in the hands of the heir, and a bill is filed to recover the amount so charged, all legatees who are entitled to the benefit of the charge must be made parties in their own names, because they have a common interest in the fund. And the same rule applies when by a will the testator makes the executors trustees to sell real estate, and out of the produce, after discharging debts, to pay certain sums to certain legatees, which sums are also charged on the personal assets in case of deficiency of the fund arising from the real estate; in such case, when one of the legatees files his bill to obtain his share of the proceeds, all the other legatees must be made parties.57 4050. When a bill for an account is filed, all the persons on either side having an interest in it must be made parties; as, when an account is sought between partners, all the partners must be made parties to the suit, either as plaintiffs or defendants.58

It is not indispensable that the parties plaintiff should claim in the same right; if they are interested in the account, though claiming under different rights, they should all be joined. For example, heirs and personal representatives, mortgagors and mortgagees, legatees and distributees, and the like. The reason of this is that the accountant shall not be obliged to make and settle more than one account.59

The rule that all persons interested in the account should be made parties does not apply to cases where it appears that some of the parties have been accounted with and paid. Thus, in the case of a bill by a cestui que trust on coming of age for his share of the fund, a decree will be made without requiring the other cestuis que trust, who have come of age before and have received their shares, to be made parties to the bill.60

4051. Whenever the property, which is the subject in dispute, would vest in the personal representatives of a deceased person, such personal representatives must be made parties to the proceedings, because the personal representatives in all cases represent the estate of the deceased, and are entitled to sue in equity as well as at law without making the residuary legatees or any of the other persons interested in it parties to the suit.61

4052. The next subject of consideration will be the cases of mortgagors and mortgagees and their assignees, who may have a concurrent interest with the plaintiff. These are either parties to redeem or parties to foreclose a mortgage. When we come to the examination of the parties who are interested in resisting the claim, the proper parties to be made defendants in such cases will then be considered,62

4053. When the mortgagor and mortgagee are both living, and the former brings a bill to redeem, of course he alone is the proper party in the suit, if there has been no assignment and the rights of the parties remain as at first, because no other person has or can have an interest.

Y. 270; Atwood v. Hawkins, Finch, Ch. 113; West v. Randall, 2 Mas. C. C. 181; Sherrit v. Birch, 3 Brown, Ch. 229; Parsons v. Neville, 3 Brown, Ch. 365; Peacock v. Monk, 1 Ves. sen. Ch. 127; Anon. 1 Ves. Ch. 29; Cockburn v. Thompson, 16 Ves. Ch. 321; 1 Daniell, Chanc. Pract. 308.

56 Hallett v. Hallett, 2 Paige, Ch. N. Y. 15.

57 Faithful v. Hunt, 3 Anstr. Exch. 751; 1 Daniell, Chanc. Pract. 349, 350.

68 Ireton v. Lewis, Cas. temp. Finch, 96; Moffat v. Farquharson, 2 Brown, Ch. 838; Evans v. Stokes, 1 Keen, Rolls, 24; 1 Daniell, Chanc. Pract. 308; Story, Eq. Pl. 218. 59 Story, Eq. Pl. ¿ 219.

60 1 Daniell, Chanc. Pract. 310.

61 Jones v. Goodchild, 3 P. Will. Ch. 33.

62 See bevond, 4074.

If, on the contrary, the mortgagor be dead, those who represent him as heirs or devisees are proper parties to a bill to redeem when the mortgage is in fee, for they alone have an interest in the land. If the mortgage be for a term of years only, then the heir has no interest and the personal representatives of the mortgagor alone have a right to redeem, and for this purpose should alone be made parties.63

A person entitled to a part only of the mortgage money cannot foreclose the mortgage without making the other persons in interest parties; so neither can a mortgagor redeem the mortgaged estate without making all those who have an equal right to redeem with himself parties to the suit. For this reason, where two estates are mortgaged to the same person for securing the same sum of money, and afterward the equity of redemption of one estate becomes vested in a third person, the owner of one cannot redeem his part separately.

When the mortgagor has assigned his estate or the equity of redemption, subject to the mortgage which the assignee has undertaken to pay, the mortgagor no longer having any interest, the assignee may alone maintain a suit to redeem. But if the mortgagor in making his assignment has undertaken to pay off the mortgage, he must be made a party to a bill to redeem, because he is primarily liable to discharge the debt. All persons who have an interest as assignees of course must join in a bill to redeem."

In general, indeed, all persons who have a right to the estate or claim by privity under the mortgagor have a right to redeem.66

It was formerly said that a cestui que trust must be joined with the trustee in a bill to redeem, but this does not appear to be necessary in modern practice. 4054. The same principle which requires the participation of all persons who have an interest in the equity of redemption in the case of bills to redeem a mortgage makes it necessary that a mortgagee, who seeks to foreclose the mortgage, should bring before the court all persons who have an interest in the mortgage under himself; if, therefore, there are several derivative mortgagees, they must all be made parties to a bill of foreclosure.68

When the parties remain the same as they were when the mortgage was created, the only party entitled to foreclose the mortgage is the mortgagee, as he alone has an interest in it. If there are two joint mortgagees, and one sues for foreclosure, the other refusing to join, but being a party, the plaintiff will be entitled to the common decree for foreclosure of the whole.69 But if the mortgagee has assigned the mortgage absolutely, the assignee may bring a suit upon it without joining the assignor;70 and in case it has been assigned in parts, all the assignees must join, for one of them cannot sue and have a partial foreclosure."

As a mortgage is personal property, if the mortgagee dies, his personal representatives are alone authorized to bring a bill for foreclosure."

Where the mortgage is the property of the wife, neither the husband nor his heirs or representatives should be made plaintiffs in a bill to foreclose.73

63 But see Enos v. Sutherland, 11 Mich. 538, as to the necessity of joining heirs in a bill brought by an administrator to redeem real estate mortgaged by the deceased.

64 Cholmondeley v. Clinton, 2 Jac. & W. Ch. 3, 124; 1 Daniell, Chanc. Pract. 304; Story, Eq. Pl. 182; Polk v. Lord Clinton, 12 Ves. Ch. 48, 61.

65 Palmer v. Carlisle, 1 Sim. & S. Ch. 423.

67 Bryden v. Partridge, 2 Gray, Mass. 190.

66 Story, Eq. Pl. ?? 184, 185.

65 Hobart v. Abbot, 2 P. Will. Ch. 643; Cooper, Eq. Pl. 37; Story, Eq. Pl. 199; 1 Daniell, Chanc. Pract. 307; Spence, Eq. Jur. 673.

69 Davenport v. James, 12 Jur. 827.

70 Lewis v. Nangle, 2 Ves. Ch. 231; Ambl. Ch. 150.

Palmer v. Carlisle, 1 Sim. & S. Ch. 423. See Montgomerie v. Marquis of Bath, 3 Ves. Ch. 560; Lowe v. Morgan, 1 Brown, Ch. 368; Stokes v. Clendon, 3 Swanst. Ch. 150. 72 Freake v. Horsley, 2 Freem. 180.

73 Bartlett v. Boyd, 34 Vt. 256.

4055. When the government is interested in the subject matter of the suit, it is essential that the attorney general, or some other officer designated by law, should be made a party, either as plaintiff or as defendant, to protect or assert the rights of the public; thus, in cases of public charities, the attorney general must be made a party to the suit, because the government, as parens patriæ, superintends the administration of all charities, and in cases of this kind acts by a proper and known officer.

4056. To the rule that all parties having an interest must be joined in a suit in chancery, various exceptions have been made. These exceptions are all governed by the same principle. It is the object of the rule to accomplish the purposes of justice between the parties; the courts will not, therefore, permit it to be applied to defeat justice, if they can dispose of the case upon its merits without prejudice to the rights or interests of other persons who are not parties, or when the circumstances render the application of the rule impracticable or impossible." But lest, in its endeavors to do justice, the court should run the hazard of doing injustice to other parties not before it, whose claims are equally meritorious, if complete justice between the parties before the court cannot be done without other parties being made, whose rights and interests would be prejudiced by the decree, the proceedings will be stayed, though those other parties cannot be brought into court.75

The cases which are exceptions to the general rule may be classed as follows: when the parties are omitted on account of their numbers, and when it is impracticable to make all persons who have an interest parties to the suit.

4057. It is frequently almost impossible to join all those who have an interest as plaintiffs in a suit in equity, on account of the delays and inconveniences which would obstruct or probably defeat the purposes of justice. For this reason, if the court can make a decree without injury to the persons or parties before the court, the others will be dispensed with; but if no decree can be so made without all the persons in interest being made parties, the courts of equity will not proceed.76

When the parties are too numerous to be all included in the bill, it should be so stated in it, and the bill must be filed not only in behalf of the plaintiff, but also in behalf of all other persons interested who are not named as parties, so that they may come in under the decree, and take the benefit of it; or, if against them, show it to be erroneous, or entitle themselves to a rehearing."

The cases in which all the parties in interest will not be required to join may be classed into those where the question is one of common or general interest, where one may sue or defend for the whole, where the parties form a voluntary association for public or private purposes, and those who sue represent the whole, or where the parties are very numerous, though they have or may have separate interests.

4058. The rule that all parties must join when they have an interest in the subject matter in controversy does not apply to cases which are of a general interest; for example, a suit may be brought by a few of the crew of a privateer against the prize agents for an account of the prize money, when they sue for themselves and the rest of the crew, who had signed the articles, and had not received their share of the prize money." 78

"Hallett v. Hallett, 2 Paige, Ch. N. Y. 15; West v. Randall, 2 Mas. C. C. 190; Elmendorff v. Taylor, 10 Wheat. 152; Cockburn v. Thomson, 16 Ves. Ch. 321.

75 Joy v. Wirtz, 1 Wash. C. C. 517; Marshall v. Beverley, 5 Wheat. 313.

76 Evans v. Stokes, 1 Keen, Rolls, 32; West v. Randall, 2 Mas. C. C. 193; Cooper, Eq. Pl. 39.

"West v. Randall, 2 Mas. C. C. 193.

78 Good v. Blewitt, 12 Ves. Ch. 397; Leigh v. Thomas, 2 Ves. Ch. 312; West v. Randall, 2 Mas. C. C. 193; 1 Daniell, Chanc. Pract. 332; Story, Eq. Pl. § 98.

4059. Another case of exception to the general rule is that of creditors of a deceased debtor, who may be joined in a suit to administer the assets, although it is not necessary they should be so joined as plaintiffs, because one or more of them may bring suit and file a bill, on their own behalf and on behalf of the other creditors upon the same estate, for an account and application of the estate of the deceased debtor; in which case, the decree being made applicable to all the creditors, the others may come in under it and obtain satisfaction for their demands, as well as the plaintiffs in the suit; and if they decline to do so, they will be excluded from the benefit of the decree, and will yet be considered bound by acts done under its authority.79

The same principle applies when the demand is against the real as well as the personal assets; So when the creditors or incumbrancers are numerous, one or more may bring suit in behalf of himself and the others, in order to prevent inconvenience and to save expenses; and the same liberal principle has been extended to the case of creditors under a trust deed for the payment of debts.8

This course is often pursued where a bill is brought by some of the holders of bonds issued by a railroad company, in behalf of themselves and other bond holders, who may wish to come in and join with them to enforce rights under a mortgage given to secure the payment of the bonds.

4060. By analogy to the case of creditors, a legatee is permitted to sue on behalf of himself and the other legatees, in order to procure a settlement of the accounts of the administration and a payment of all the legatees.

82

For the same reason, when the bill seeks to apply personal estate among the next of kin, or among persons claiming as legatees under a general description, and it may be uncertain who are the persons answering that description, bills have been admitted by one claimant on behalf of himself and others equally interested.83

84

4061. In cases where the parties have formed a voluntary association, those who sue or defend may be fairly presumed to represent the rights and interests of the whole; the impracticability and inconvenience of joining the whole as parties have induced courts of equity to relax the rule, and to allow some of the parties to sue in behalf of themselves and all the others, when there is a substantial representation of all the interests before the court.85 As, for example, where some of the partners in a very numerous company, consisting of five hundred or more, filed a bill for themselves and the other partners to rescind a contract entered into in behalf of the partnership, where it was manifest from the circumstances of the case that it would be for the benefit of all the partners that the contract should be rescinded, and an objection was made for want of parties, it was held by the court that the suit was properly brought.86

4062. One of the principal grounds on which the courts rest for allowing

T9 Leigh v. Thomas, 2 Ves. Ch. 312, 313; Story, Eq. Pl. ¿ 99; 1 Daniell, Chanc. Pract. 329; Hendricks v. Robinson, 2 Johns. Ch. N. Y. 283; Brown v. Ricketts, 3 Johns. Ch. N. Y. 556.

80 Leigh v. Thomas, 2 Ves. Ch. 313.

81 Mitford, Eq. Pl. Jeremy, ed. 167 176; 1 Daniell, Chanc. Pract. 330.

82 1 Daniell, Chanc. Pract. 331.

84

Montagu, Eq. Pl. 58.

85

83 Weld v. Bonham, 2 Sim. & S. Ch. 91, 138.

Cooper, Eq. Pl. 40; West v. Randall, 2 Mas. C. C. 194; Chancey v. May, Prec. Chanc. 592; Hickens v. Congreve, 4 Russ. Ch. 562; Cockburn v. Thompson, 16 Ves. Ch. 328; Lloyd v. Loring, 6 Ves. Ch. 773; Attorney General ". Heelis, 2 Sim. & S. Ch. 67; Gray v. Chaplin, 2 Sim. & S. Ch. 267; Bromley v. Smith, 1 Sim. Ch. 8; Jones v. Garcia del Rio, 1 Turn. & R. Ch. 300.

86 Small v. Atwood, 1 Younge, Exch, 407, 458. See Walburn v. Ingleby, 1 Mylne & K. Ch. 76.