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4082. Although it is not easy to say who are the necessary parties to a suit, and it is doubtful, until the decision of the cause, what interests may be affected by that decision,121 yet it is a rule that no one should be made a party to a suit against whom, if brought to a hearing, there could be no decree. 122

This subject will be divided by considering, first, what is a joinder of parties who have no interest, second, the effect of such a joinder.

4083. Persons who have no interest are agents, auctioneers, stewards, solicitors, attorneys, witnesses, and the like, persons whose interests are only consequential, those who are not in privity with the parties, nominal or formal parties, and claimants by paramount title.

4084. Persons who have no interest in the thing sued for can have no right to recover, and therefore ought not to be joined as parties; and if such persons have been joined, this is fatal to the proceedings.123 For the same reason, persons having adverse or conflicting interests in the subject of litigation ought not to be joined as complainants in the suit.124

On the other hand, when persons have been connected with the transaction in some capacity which gives them no title to the subject matter of the suit, they cannot in general be made defendants; as, for example, an auctioneer who has sold an estate, the sale being the matter in controversy; an attorney who has negotiated an annuity, when the bill prays to set aside the contract; an arbitrator to a suit, when the bill is to enforce or set aside the award; a steward or receiver of rents or profits in a suit between the vendor and vendee, when a bill is filed for a specific performance. In all these cases these agents should not be joined, and if they are, and it appears upon the bill that they have no interest, it will be ground for demurrer. 125

4085. But it must be remembered that in cases of this kind, when there is any charge of fraud in the transaction in which these parties have been participants, and such fraud is charged in the bill, they may be made parties defendant; for, at least, they may be made responsible for costs in consequence of their fraud. 126

4086. A mere witness ought not for the same reason to be made a party to a bill, although the plaintiff might deem his answer more satisfactory than his examination, because he has no interest in the cause, and no decree can be made against him; besides, his answer would not be evidence against his co-defendant.127 The injustice of harassing him with such a suit, and putting him unjustly to the trouble and expense of defending himself, is a sufficient reason why he should not be made a party."

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liability, or interest in the result of the bill, see People v. Law, 34 Barb. N. Y. 494; Buchoz v. Lecom, 9 Mich. 234; Camp v. McGillicuddy, 10 Iowa, 204. 121 Mitford, Eq. Pl. Jeremy, ed. 179.

192 Wych v. Meal, 3 P. Will. Ch. 311, n. 123 See Beatty v. Judy, 1 Dan. Ky. 103; Brumley v. Westchester Co., 1 Johns. Ch. N. Y. 366.

124 Alston v. Jones, 3 Barb. Ch. N. Y. 397. See Mitford, Eq. Pl. Jeremy, ed. 185, 187; Cooper, Eq. Pl. 189, 190 ; Welford, Eq. Pl. 282; King of Spain v. Machado, 4 Russ. Ch. 244.

125 Cooper, Eq. Pl. 42; 1 Daniell, Chanc. Pract. 394, 397, 399; Story, Eq. Pl. & 231 ; Welford, Eq. Pl. 283; Coe v. Beckwith, 31 Barb. N. Y. 339; Lyon v. Tevis, 8 Iowa, 79.

126 Mitford, Eq. Pl. Jeremy, ed. 160.

127 Twells v. Costen, 1 Pars. Eq. Cas. Penn. 373, 378. The reason why the answer of a co-defendant is not evidence against a defendant is, that the latter ought not to be compromited by what may be said in the answer, because he had no opportunity to cross-examine him, and it would be unjust to let his answer be evidence, when he responds merely to the interrogatories of their common adversary. Plumer v. May, 1 Ves. sen. Ch. 426 ; Dinely v. Dinely, 2 Atk. Ch. 394; Cookson v. Ellison, 2 Brown, Ch. 252; Fenton v. Hughes, 7 Ves. Ch. 287; Howe v. Best, 5 Madd. Ch. 19.

128 1 Daniell, Chapc. Pract. 397; Cookson v. Ellison, 2 Brown, Ch. 252; Mitford, Eq. Pl. Jeremy, ed. 188; Twells v. Costen, 1 Pars. Eq. Cas. Penn. 373.

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4087. But to this rule there is an exception which is somewhat anomalous; it is, nevertheless, fully established. It cannot be better stated than in the words of King, P. J.12 “To this rule there is one established exception,” he says, cases of corporations, where chief officers may be made parties to a discovery, although no decree is sought or could be had against them. The reason of this exception, which has been considered as a stretch of the authority of the court to prevent a failure of justice, seems to have sprung from the fact that a corporation could only answer under its common seal, and therefore could not be indicted for perjury, however falsely it might answer; and from the idea that though the answer of the officers could not be read in evidence against the corporation, it might be of use in directing the plaintiff how to draw his interrogatories to obtain a better answer.180

4088. We have already seen that when a party has a mere consequential interest, it is not requisite he should be made a defendant; for example, where a bill is filed by a creditor for the payment of his debt out of the assets of his deceased debtor, whether the plaintiff sues for himself alone or for himself and on behalf of all others.131 This subject has already been fully considered.

4089. When there has been no contract between the plaintiff and another person, and there is no privity, it is evident the latter ought not to be made a defendant, although he may have in his bands what may be eventually liable for the claim, because his liability, if any, is to another person. For example, when a creditor brings a suit against an executor for the payment of his debt out of the assets, a debtor of the estate cannot, in general, be joined as a defendant, because he is liable solely to the executor. 182 But if it appear that there is collusion between the executor and the debtor, the latter may be made a defendant upon that ground, for a court of equity has jurisdiction on the ground of fraud.

4090. Nominal parties are those from whom no account, payment, convenience, or other direct relief is sought, not being an infant.183

In general, the joinder of mere nominal parties will not be required, and if such persons cannot be made parties, they will be dispensed with, and the want of them will not arrest the proceedings. 134

4091. When a suit is brought for the recovery of a subject matter which is due the defendant, if a third person has a claim upon it by a paramount title, he ought not to be made a defendant, for if he has a prior title or incumbrance, he cannot be affected by the decree, for example, when a bill is filed to carry into effect the trusts of a will, a person who claims a title or incumbrance prior to the will, or to the testator, ought not to be made a party, because his title being paramount to that of the testator, he cannot be affected by such a

4092. When the objection of a want of interest applies, it is as fatal when applicable to one of several plaintiffs as it is when applicable to one of several

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bill.135

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129 Twells v. Costen, 1 Pars. Eq. Cas. Penn. 379.

130 See Wych v. Meal, 3 P. Will. Ch. 312; Fenton v. Hughes, 7 Ves. Ch. 289; Dummer v. Chippenhorn, 14 Ves. Ch. 524; Gibbons v. Waterloo Bridge, 5 Price, Exch. 491; Story, Eq. Pf. 3 235; Wright v. Dame, 1 Metc. Mass. 237.

Mitford, Eq. Pl. Jeremy, ed. 170. See also Page v. Olcott, 28 Vt. 465. 132 Utterson v. Mair, 2 Ves. Ch. 95; Gedge v. Traill, 1 Russ. & M. Ch. 281. See Frye v. Bank of Illinois, 11 Ill. 367. 133 Rules for the courts of equity of the U.S., Rule 54. See Skiles v. Suitzer, 11 Ill. 533.

Wormley v. Wormley, 8 Wheat. 451; Butler v. Pendegraft, 2 Brown, Parl. Cas. 170; Lang

v. Brown, 29 Ga. 368. 135 Devonsher v. Newenham, 2 Schoales & L. Ch. Ir. 210; Pelham v. Gregory, 1 Ed. Ch. 518; 5 Brown, Parl. Cas. 435; 1 Daniell, Chanc. Pract. 359; Chapman v. West, 17 N. Y. 125.

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defendants. In the former case it is fatal to the whole suit; in the latter, when taken in due time, it is fatal against the defendant improperly joined. 136

4093. Having examined to some extent the rules with reference to making persons parties to a suit in equity, and shown who ought to be joined, and the effect of joining those who have no interest, let us now take a passing notice of the manner of curing the defects of having made improper parties, when such faults can be cured.

When the want of necessary parties appears upon the face of the bill, the defendant may demur. If, however, the defect be of vital importance, with

, regard to the character of the bill and the nature of the relief prayed for, the defendant is not forced to demur, but may insist upon the defect at the hearing.137 When the defect is not apparent on the bill, it may be objected to by plea or answer. 138

But if, instead of too few persons having been made parties to the bill, the defect is, on the contrary, that persons have been joined who had no interest in the suit, and such defect appears on the face of the bill, the party improperly joined may demur, or at the hearing may rely upon it as a ground of defence as to himself

. When the defect is not apparent on the face of the bill, the party improperly joined may rely on the objection by plea or answer.

A demurrer for want of parties must show who are the proper parties, not indeed by name, for that might be impossible, but in such a manner as to point out to the plaintiff the objections to his bill, and enable him to amend by adding proper parties.139 In case of demurrer for want of parties, an amendment has been permitted, even when the demurrer has been allowed. 140

136 Story, Eq. Pl. & 232; Makepeace v. Hawthorn, 4 Russ. Ch. 244; 1 Daniell, Chanc. Pract. 399; 1 Welford, Eq. Pl. 25.

137 Cooper, Eq. Pl. 33, 185; Mitford, Eq. Pl. Jeremy, ed. 180; Postlewait v. Hawes, 3 Iowa, 365. Even in this case, however, it is said to be the better practice not to dismiss the bill, but to order the cause to stand over with leave to bring in the proper parties. West v. Randall, 2 Mas. C. C. 181; Ferguson v. Fisk, 28 Conn. 501; Story, Eq. Pl. Redfield ed. & 235, note; Postlewait v. Hawes, 3 Iowa, 365; Webster o. French, 11' 111. 254.

Cooper, Eq. Pl. 289; Mitford, Éq. Pl. Jeremy, ed. 280 ; Page v. Olcott, 28 Vt. 465. 13. Mitford, Eq. Pl. 146; Attorney General v. Jackson, '11 Ves. Ch. 369; Welford, Eq. Pl. 267, 319. 140 Mitford, Eq. Pl. 146; 1 Daniell, Chanc. Pract. 385.

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CHAPTER IX.

BILLS IN EQUITY.

4094. Origin and nature of bills in equity.
4095-4158. The several kinds of bills.
4096-4103. Original bills.
4097-4100. Original bills praying for relief.

4098. Bills praying relief touching some right.
4099. Bill of interpleader.

4100. Bill of certiorari.
4101-4103. Original bille not praying relief.

4102. Bill of discovery.

4103. Bill to secure testimony. 4104_4119. Bills not original. 4105–4107. The supplemental bill.

4106. In what cases a supplemental bill is the proper remedy.

4107. The frame or form of a supplemental bill 4108-4116. The bill of revivor.

4109. In what cases a bill of revivor is the proper remedy. 4113-4115. By and against whom a bill of revivor may be brought.

4114. Bills of revivor by the plaintiff.
4115. Bills of revivor by the defendant.

4116. The frame of a bill of revivor. 4117-4119. A bill of revivor and supplement.

4118. In what cases a proper remedy.

4119. The frame of a bill of revivor and supplement.
4120_4150. Bills in the nature of original bills.
4121-4126. Cross bills.

4122. In what cases a cross bill may be brought.
4123. The time when a cross bill may be brought.

4126. The frame of a cross bill.
4127-4139. Bills of review.
4128–4135. In what cases a bill of review is the proper remedy.

4129. Bill of review for an error in law.
4133. Bill of review on the ground of new matter.
4136. The time within which a bill of review must be brought.

4137. The frame of a bill of review.
4138, 4139. Supplemental bill in the nature of a bill of review.

4138. In what cases this bill lies.
4139. The frame of this bill.

4140. Bills in the nature of a bill of review. 4141, 4142. Bills to impeach a decree for fraud.

4141. In what cases the appropriate remedy.

4142. The frame of this bill.
4143, 4144. Bills to carry decrees into execution.

4143. In what cases the proper remedy.
4144. The frame of this bill.

4145. Bills to avoid the operation of a decree. 4146-4148. Original bills in the nature of a bill of revivor.

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4146. In what cases such a bill may be brought.

4148. The frame of this bill. 4149, 4150. Supplemental bills in the nature of original bills.

4149. Cases in which such a bill is proper.

4150. The frame of these bills.
4151-4158. Bills which derive their name from the object the complainant has in view.

4152. The bill of foreclosure.
4153. Bills of information.
4155. A bill to marshal assets.
4156. A bill for a new trial.
4157. Bills of peace.

4158. Bills quia timet.
4159-4186. The analysis or several parts of a bill.

4160. The address of the bill.

4161. The names and description of the parties. 4162-4172. The premises, or stating part of the bill.

4163. The statement of the plaintiff's title.
4164. The certainty of the plaintiff's statement.
4165. The materiality of the plaintiff's statement.
4169. Multifariousness in the statement.
4171. The splitting up of a cause of action.
4172. The bill must show the jurisdiction of the court.
4173. The confederating part of the bill.
4174. The charging part of the bill.
4175. The jurisdiction clause in a bill.
4176. The interrogatory part of the bill.
4177. The prayer for relief
4181. The prayer for process.
4184. The necessity of the several parts of a bill and its general requisites.

4094. As to the origin of these bills, it will not be required, in a work of this kind, to go into long details of their history; it will perhaps be sufficient to state that they have by degrees been reduced to a perfect system, though at first they were extremely simple, being a mere petition to the king, which was referred by him to his chancellor. In the course of time this petition was addressed to the chancellor himself; and afterward it assumed a regular and uniform frame. In it was stated the cause of complaint, and this was followed by a prayer to the court to grant suitable relief. Like every other thing human, by degrees the bill was improved to what we now find it.

Bills in equity were doubtless borrowed from the civil and canon law, and the latter was in many respects copied from the former. The early English chancellors were generally ecclesiastics, accustomed to the jurisprudence of those two systems, and naturally introduced into the English law many of the principles and maxims which they had learned, and which are founded for the most part in common sense and sound reason.

Equity pleading, which is the formal mode of alleging that on the record which would be the support or defence of the party on evidence,' has become a science of considerable refinement, and of many nice distinctions, so that it requires much time, diligence, and attention, fully to master the subject. It will be the object of this title of the work to develop the principles of equity pleading, without, however, going into minute details.

In this chapter we shall consider, first, the several kinds of bills, and, second, the frame of bills, or the analysis, or several parts of a bill.

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1 Read v. Brookman, 8 Term, 159. See Bouvier, Law Dict. Pleading.

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