sons, who can give the information. For a like reason, the members of corporations may also be made parties to a Bill, either for discovery alone or for discovery and relief, although they have no other interest, than as corporators, in the subject matter of the suit.? § 236. Having stated these general doctrines in relation to the joinder and omission of parties, it may be proper to add in this connection (although the matter will necessarily come in review hereafter), that, if the want of proper and necessary parties is apparent on the face of the Bill, the defect may be taken advantage of by demurrer. In many cases, and especially if the defect be vital to the character of the Bill, and to the relief asked, the objection may also be insisted upon at the hearing. And, if the Court shall proceed to a decree, the decree may be reversed for error on this account. If the defect is not apparent on the Bill, it may be propounded by way of a plea, or it may be relied on in a general answer. If it is insisted on only at the hearing, the Court will often, if there are 1 It seems, however, that although it is not an unusual rule, that the officers of a corporation may be made parties; yet that a special ground, such as to peculiar information, should be laid. Thus, in Howe v. Bent, 5 Madd. R. 19, where an officer of the Bank of England was made a party to a Bill of discovery, when certain stock in question in the cause was transferred, it was held on demurrer, that he was not properly joined, because he was a mere witness. 2 Glascott v. Copper Miners' Company, 11 Sim. R. 304. 4 Cooper, Eq. Pl. 33, 185; Mitf. Eq. Pl. by Jeremy, 180, and the cases there cited; Pract. Reg. by Wyatt, 299 ; 1 Daniell, Ch. Pract. 384 – 388; 2 Daniell, Ch. Pract. 37, 38; Whiting v. Bank of United States, 13 Peters, R. 14. The mere non-joinder of a proper party cannot avail the defendant in a Bill of review, unless it operates to his prejudice ; and there is the more reason for this rule, because the absent person is not bound by the decree ; but may, in another suit, vindicate his rights. Whiting v. Bank of United States, 13 Peters, R. 14 ; Post, $ 283, 509, 541, 544. 5 Cooper, Eq. Pl. 289; Mitf. Eq. Pl. by Jeremy, 280. merits, allow the cause to stand over, in order to make the new parties, or, if the Bill is dismissed, it should be without prejudice. § 236, a. It is no answer to the objection of a want of proper parties, that the persons, who are not parties, might, if made so, object, that the Bill is multifarious. Many Bills may not be multifarious as to some persons, interested in the whole subject matter, which would be so as to others, interested only in part of it. But that is no reason for the Court proceeding in the absence of any person, who ought to be present, as to any part of the case. It at most can only prove, that the plaintiffs have adopted a wrong course from the beginning; and that the error is irremediable under the ordinary permission to amend by making parties.? § 237. If, on the other hand, the defect in the Bill should be a joinder of improper parties (as, for example, of persons, having no interest, or mere witnesses), in such a case, if the defect is apparent on the face of the Bill, it may be brought forward by a demurrer by the party improperly joined; or he may, at the hearing, in some cases, rely on it, as a ground for a dismissal of the Bill as against him. If the defect is not 1 West v. Randall, 2 Mason, R. 181 ; Mechanics' Bank of Alexandria v. Setons, i Peters, R. 306; Hunt v. Wickliffe, 8 Peters, R. 215; Ante, $ 73; Post, $ 541, 544. The 40th Order of the English Chancery Orders of 1841, has altered materially the old Rule. It provides, " That if a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties, not having by plea or answer taken the objection, and therein specified by name or description the parties, to whom the objection applies, the Court (if it shall think fit) shall be at liberty to make a decree saving the rights of the absent parties.” Ante, $ 220. The same Rule has been adopted by the Supreme Court of the United States. See 53d Rule of the Equity Rules of the Supreme Court of the United States, January Term, 1842. 2 Lumsden v. Frazer, 1 Mylne & Craig, 589, 602; S. C. 7 Simons, R. 555 ; Attorney-General v. Poole, 4 Mylne & Craig, 17. 3 Post; 283, 509, 541, 544, 569. apparent on the face of the Bill, the party, improperly joined, may rely on the objection by way of a plea, or insist upon it in his answer. It is not safe, however, in any case, to rely upon the mere non-joinder or misjoinder of parties, as an objection at the hearing; for if the Court can make a decree at the hearing, which will do entire justice to all the parties, and not prejudice their rights, notwithstanding the non-joinder or mis-joinder, it will not then allow the objection to prevail. The true course, therefore, is, to take it by way of demurrer, when it is apparent on the face of the Bill; or, if not apparent, by plea, or by answer.3 When the objection of want of proper parties exists, the Court will ordinarily allow the defect to be supplied by an amendment of the original Bill, or by a supplemental Bill, as the stage of the proceedings, at which the objection is taken, may require.* § 238. Where a demurrer, or a plea, is put in for the want of proper parties, if a demurrer, it must appear, if a plea, it must be shown, who are the proper parties, not indeed by name, for that might be impos 1 Cooper, Eq. Pl. 42; Mitf. Eq. Pl. by Jeremy, 160, 161; Post, § 541, 514. 2 Lambert v. Hutchinson, 1 Beavan, R. 277; Post, 283, 544; Pringle v. Crooks, 3 Younge & Coll. 666. In this last case, a doubt was suggested, whether in any case a mis-joinder of a defendant was a ground of demurrer. Post, 544 and note. The very point as to a non-joinder of a defendant arose in the case of Whiting v. Bank of United States, 13 Peters, R. 6-14; and it was there held, that unless the non-joinder operated a prejudice to the rights of the other defendants, it could not be taken advantage of at the hearing, or upon a rehearing on a Bill of review. See also Russell v. Clarke's Ex'rs, 7 Cranch, 69; Elmendorf v. Taylor, 10 Wheaton, R. 152; Carneal v. Banks, 10 Wheaton, R. 181; Mallon v. Hinde, 12 Wheaton, R. 193; Mechanics' Bank of Alexandria v. Setons, 1 Peters, R. 306; Vattier v. Hinde, 7 Peters, R. 252; Boone's Heirs v. Chiles, 8 Peters, R. 532; Ante, § 232, 236 and note; Post, § 541, 544. 3 Ibid. sible ; but in such a manner as to point out to the plaintiff the objection to his Bill, and enable him to amend by adding the proper parties. Indeed, cases may occur of such a nature, as even to require the names to be stated, if the more general description is not sufficient to enable the plaintiff to ascertain with reasonable certainty the names of the absent parties.” For example, if it should appear in the case of a Bill to enforce a rent charge for a charity, that other lands also were charged, it might be required in the plea to set forth, who are the present owners of these lands, and their precise locality, especially if the transaction were of great antiquity, and the original description were loose and indeterminate.3 1 Mitf. Eq. Pl, by Jeremy, 180, 181 ; Attorney-General v. Jackson, 11 Ves. 369, 370 ; Post, $ 543. See Attorney-General v. Poole, 4 Mylne & Craig, 17; 1 Daniell, Ch. Pract. 384 – 388. 2 Attorney-General v. Jackson, 11 Ves. 367-371. 3 Ibid. ; Attorney-General v. Wyburgh, 1 P. Will. 509 ; AttorneyGeneral v. Shelly, 1 Salk. R. 163, CHAPTER V. BILLS - GENERAL FRAME OF. § 239. Having gone through with these preliminary considerations as to parties, we shall now proceed to a more particular consideration of some of the general rules and principles applicable to the structure of Original Bills for relief. We have already had occasion to state the nature, and general character, and appropriate subdivisions, and parts of such Bills, which should be borne in mind in our subsequent inquiries. $ 240. In the first place, then, as to the certainty, which is required in the statements of Bills. With reference to certainty in pleadings at the Common Law, there are said to be three kinds, applicable to different parts of the pleadings, founded, as it should seem, upon one general maxim ; Certa debet esse intentio, et narratio, et certum fundamentum, et certa res, quæ deducitur in judicium. The first kind is certainty to a common intent; and that is sufficient in a bar, which is to defend the party, and to excuse him. The second is certainty to a certain intent in general, as in counts, replications, and other pleadings of the plaintiff, that is, to convict the defendant, as in indictments, &c. The third is, certainty to a certain intent in every particular, as in estoppels, which are odious in the law. It has been said, that, in pleading, there must be the same strictness in Equity as in law ;? as, 1 Co. Litt. 303, a. |