add in the Bill the name of the person out of the jurisdiction of the Court, so far as may be necessary to connect bis case with that of the other parties. But in such a case, the Bill should not only allege, that the person is out of the jurisdiction, but it should go on to pray process against him, so that he may be made amenable to the process of the Court, if he should come within the jurisdiction. One reason for this is, that the absent person may have an opportunity of appearing to the suit, and taking such a course in it, as he may deem to be for his advantage. And if in fact he should become so amenable, pending the suit, he ought to be brought before the Court either by process issuing against him, if process shall have been prayed against him; and if not, by amending the Bill for that purpose, if the state of the proceedings will admit of such an amendment; or by a supplemental Bill, if the state of the proceedings will not so admit.

$ 81. It is an important qualification engrafted on this particular exception (which has been already in

or prejudice other parties not regularly served with process, or not voluntarily appearing to answer; and the nonjoinder of parties, who are not 80 inhabitants, or found within the district, shall constitute no matter of abatement, or other objection to said suit.” Post, $ 135, and note.

1 Munoz o. De Tastet, 1 Beavan, R. 109, and note ; Brookes v. Burt, 1 Beavan, R. 109. But see Haddock v. Tomlinson, 6 Sim. R. 219. The 220 Rule of the Rules of the Supreme Court of United States, January Term, 1842, assumes the propriety of this doctrine.

2 Munoz v. De Tastet, 1 Beavan, R. 109, note; Id. 111, the Reporter's note. — But in Haddock o. Tomlinson, 2 Sim. & Stu. 219, it seems to have been thought by the Court, that it was not absolutely necessary to pray process against a person out of the jurisdiction of the Court, although it might be done. The objection, however, if well founded, should be taken by demurrer; and if an absent person should afterwards come withia the jurisdiction, he might be made a party by the plaintiff, by a supplemental Bill. Post, $ 335; Mitford Eq. Pl. by Jeremy, 164, 165; Id. 180, 181.

3 Mitf. Eq. Pl. by Jeremy, 164, 165; 1 Smith Ch. Pr. 45; Haddock v. Tomlinson, 2 Sim. & Stu. 219.

!

cidentally alluded to), that persons, who are out of the jurisdiction, and are ordinarily proper and necessary parties, can be dispensed with, only when their interests will not be prejudiced by the decree, and when

they are not indispensable to the just ascertainment of 1 the merits of the case before the Court. The doc

trine ordinarily laid down on this point is, that where the persons, who are out of the jurisdiction, are merely passive objects of the judgment of the Court, or their rights are merely incidental to those of the parties before the Court, then, inasmuch as a complete decree may be obtained without them, they may be dispensed with. But if such absent persons are to be active in the performance or execution of the decree;s or if they have rights wholly distinct from those of the other

1 Ante, 577 ; West v. Randall, 2 Mason, 190 - 198; Mallow v. Hinde, 12 Wheat. R. 193; Russell v. Clarke's Ex'ors, 7 Cranch, 72.

2 Mitf. Eq. Pl. by Jeremy, 31, 32 ; Id. 164, 165 ; Meux v. Maltby, 2 Swanst. R. 378.

3 Sir Thomas Plumer (Master of the Rolls), in Meux v. Maltby, 2 Swanst. R. 278, went largely into the general rule and the exceptions. In that case a joint stock company, authorized by act of Parliament to bring suits in the name of their treasurer, purchased an estate, pending a suit against the vendors, to compel the specific performance of an agreement to grant a lease of a part. On a Bill by the vendee against the treasurer and directors, the plaintiffs were declared entitled to a lease, and the treasurer was enjoined not to disturb their possession. But the Court refused to decree an execution of the lease ; as the rest of the proprietors were not parties, being very numerous; and the Court would not compel them as absentees to do any act. On that occasion the learned Judge said: “The only novelty is, that the Bill requires an act to be done by the absentees. Not having them before the Court, though their rights may be bound, there is a difficulty in making them act. The plaintiff requires special performance of the agreement; and it would hardly be sufficient, supposing it proper, for a few to execute a lease on behalf of the rest. In a conveyance of the interest, all must join. But that difficulty presents no objection to binding the rights of the parties not before the Court. That is authorized by every one of the cases referred to. If the Court cannot proceed to compel the defendants to do the act required, it must go as far as it can.”

parties; or if the decree ought to be pursued against them; then the Court cannot properly proceed to a determination of the whole cause without their being made parties. And, under such circumstances, their being out of the jurisdiction constitutes no ground for proceeding to any decree against them or their rights

1 Mitf. Eq. Pl. by Jeremy, 31, 165; Fell v. Browne, 2 Bro. Ch. R. 275; Attorney-General v. Baliol College, 9 Mod. R. 409; Inchiquin v. French, Ambl. R. 33; Browne v Blunt, 2 Russ. & Mylne, 83 ; Roveray 5. Grayson, 3 Swanst. R. 145, note; Smith v. Hibernian Mine Company, 1 Sch. & Lefr. 240; Joy v. Wirtz, 1 Wash. C. C. 517; Russell 2. Clarke's Ex’ors, 7 Cranch, 72. In Whalley v. Whalley, 1 Vern. R. 484, the Court went very far in sustaining the suit, and in dispensing with parties. The Bill, in that case, charged, that the testator was, among other things, possessed of a lease for forty years, of which thirty-five years were unexpired at his death ; that he bequeathed the residue of property (which included the lease) to the plaintiff, and made the plaintiff's father executor in trust for the plaintiff. It further charged, that the executor surrendered the lease, and took a new one in his own name for the unexpired term, and mortgaged it to one W., which mortgage, by intermediate assignments, came to one of the defendants, and he afterwards assigned the equity to another of the defendants, to be sold to pay his debts; and that the executor then went abroad; and the object of the Bill was to procure an assignment of the mortgage and equity of redemption, upon the ground, that they belonged to the plaintiff, and the defendants had notice. The Court decreed the lease to be assigned to the plaintiff, and that the defendants should account for the profits, and also an account to be taken of the testator's estate, &c., &c., without the executor being made a party. From this statement it would seem indispensable that the executor should have been made a party ; for the decree directed, that the sums should be allowed him, which he had paid, beyond the other personal estate received by him. How could an account be properly taken without him? It is true, that it is said, that the Court ordered the suit to proceed against the defendants without prejudice for not bringing the father to a hearing. But the whole Equity of the case depended upon the state of the accounts of the executor, and whether the executor had paid debts and legacies, to the full amount of all the property which had come to his hands, and, at all events, whether he had paid to an amount beyond the other personal estate. It is remarkable that in the Register's Book no such order of the Court appears. Ibid. note (7). The case of Heath v. Percival, 1 P. Will. 684, turned upon very different considerations as to the question of parties. See Roveray .. Grayson, 3 Swanst. 145, note. See West v. Randall, 2 Mason, R. 181, 190 - 197.

or interests; but the suit, so far at least as their rights and interests are concerned, should be stayed; for to this extent it is unavoidably defective. In many instances the objection will be fatal to the whole suit. In others, it will not prevent the Court from proceeding to the decision of other questions between the parties actually before it, even though such a decision may incidentally touch upon, or question, the rights of the absent parties.

$ 82. A few cases will serve to illustrate this doctrine with its accompanying qualifications. Thus, where a suit is brought to recover a debt against partners, and one is out of the jurisdiction, a decree may (as we have seen) be had against the other. The reason seems to be, that in such a case, as each partner is liable for the whole debt, and each in fact represents the whole interest of the partnership, no injustice is done by making the one before the Court solely liable, and dispensing with the other partner; as, indeed, might be done at law in a similar case. But if the Bill were brought by one partner against

1 Ibid.

2 Inchiquin v. French, Ambler, R. 34; Attorney-General v. Baliol College, 9 Mod. R. 409 ; Fell v. Brown, 2 Bro. Ch. R. 275 ; Browne v. Blount, 2 Russ. & M. 83; Mallow v. Hinde, 12 Wheaton, R. 193. In Attorney-General v. Baliol College, 9 Mod. R. 409, Lord Hardwicke is reported to have said, in answer to an objection, that the University of Glasgow was not a party to the original decree, and so not bound by it ; “ Glasgow indeed was no party, nor indeed were the plaintiffs obliged to make that University party, for it is a corporation, and out of the kingdom and reach of process of this Court, which is always an excuse for not making them parties; therefore, this is no objection to make this a void decree as to them.” With reference to the case before the Court, this might be entirely correct. But the language is far too broad and unqualified, if it was meant to be used generally; for there are many cases, where a decree against a party out of the jurisdiction would be void, so far as it touched his interests. See Fell 0. Brown, 2 Bro. Ch. R. 275, 276 ; Browne v. Blount, 2 Russ. & M. 83 ; Post, 9 83 - 85.

3 Ante, $ 78. 4 Darwent v. Waltern, 2 Atk. 510 ; Couslad v. Cely, Prec. Ch. 83.

several other copartners, one of whom was out of the jurisdiction, praying for an account and dissolution of the partnership; there the case might be very different; for the absent partner would have a distinct and independent interest, and would seem to be an indispensable party, since the decree must affect that interest, and indeed would pervade the entire operations of the partnership.'

83. Another case may be stated, where the objection was held fatal to the entire objects of the suit. A judgment creditor sued out an elegit, and filed a Bill for the purpose of an equitable execution against certain real estates, vested in trustees upon certain trusts, under which the debtor was then entitled to the rents and profits during his life. The trustees were defendants in the Bill; but the debtor was abroad, and had been so for several years, and, therefore, could not be made a party to the suit. The Court held the objection fatal, notwithstanding the impossibility of the debtor being made a party, because he was the very person, whose interests were sought to be affected by the decree. The sound reason, which dictated this decision, is obvious; and any attempt to sustain the jurisdiction in such a case would subvert the very foundation, on which the rule in Equity, requiring the joinder of the interested parties, rests; for the decree would either have concluded, without a hearing, the interests of the only person really interested to contest it; or have delivered over the whole matter to new and independent litigation.

$84. Upon the like ground, where a second mortgagee brought a Bill against the first, to redeem his

1 See Beaumont v. Meredith, 3 Ves. & B. 180 ; Evans v Stokes, 1 Keen, R. 32; Van Sandau o. Moore, 1 Russ. R. 441. - Browne v. Blount, 2 Russ. & M. 83. EQ. PL.

14