diction, the plaintiff in the suit may obtain an order, that she shall answer separately.' But, except under circumstances of this and a similar nature, a married woman can only defend a suit jointly with her hus band.2 1 Mitf. Eq. Pl. by Jeremy, 104, 105; Cooper, Eq. Pl. 30, 31; Portman v. Popham, Tothill, R. 75, [96]; Garey v. Whittingham, 1 Sim. & Stu. 163; Bell v. Hyde, Prec. Ch. 328, 329; Plomer v. Plomer, 1 Ch. Rep. 68; Travers v. Bulkely, 1 Ves. 383; S. C. 1 Dick. R. 138; Carleton v. Menzie, 10 Ves. 442; Banyan v. Mortimer, 6 Madd. R. 278; Bushell v. Bushell, 1 Sim. & Stu. 165; Dubois v. Hole, 2 Vern. 613; Chambers v. Bull, 1 Anst. 269; Leithley v. Taylor, 1 Dick. R. 373; Glover v. Young, Bunb. R. 167. 2 Mitf. Eq. Pl. by Jeremy, 105; Cooper, Eq. Pl. 31; Edwards on Parties in Equity, 151 - 158; Calvert on Parties, ch. 3, § 21, p. 266–273. CHAPTER IV. PROPER PARTIES TO BILLS. $ 72. Let us, in the next place, proceed to the consideration of the inquiry, who are the proper and necessary parties to a Bill. This is a subject of great practical importance, and of no inconsiderable difficulty in a great variety of cases. It has been remarked, that Courts of Equity adopt two leading principles for determining the proper parties to a suit. One of them is a principle, admitted in all Courts upon questions affecting the suitor's person and liberty, as well as his property, namely, that the rights of no man shall be finally decided in a Court of justice, unless he himself is present, or at least unless he has had a full opportunity to appear and vindicate his rights. The other is, that when a decision is made upon any particular subject matter, the rights of all persons, i Cooper, Eq. Pl. 33, 34. As far as I know, there are but two works which treat fully of the subject of parties. The first and earliest (published in New York, in 1832,) is, “ A practical 'Treatise on Parties to Bills and other Pleadings in Chancery, with Precedents, by Charles Edwards, Esq.” The second is, “A Treatise upon the Law respecting Parties in Suits in Equity, by Frederic Calvert, Esq.," published in London, in 1837. Each of these works has high merits and will be found exceedingly useful in practice. But the work of Mr. Calvert contains the fullest and most systematic review of the principles, which regulate the subject, as well as the most complete collection of the authorities. I recommend them both to the learned reader, who is desirous of making a thorough examination of the whole subject; and in this edition I have freely used such of the materials furnished by each, as had escaped my former researches. Mr. Daniell, also, in his recent and excellent work on the Practice of Chancery, has devoted a good deal of attention and a large space to the subject. See 1 Daniell, Ch. Pract. ch. 5, p. 284-392 whose interests are immediately connected with that decision, and affected by it, shall be provided for, as far as they reasonably may be. In this last respect there is an essential distinction (as we shall presently see) between the practice of the Courts of Common Law and that of Courts of Equity, both in England and America, founded upon the different nature and objects of their particular organization. It is the constant aim of Courts of Equity to do complete justice, by deciding upon and settling the rights of all persons interested in the subject matter of the suit, so that the performance of the decree of the Court may be perfectly safe to those, who are compelled to obey it, and also, that future litigation may be prevented. Hence, the common expression, that Courts of Equity delight to do justice, and not by halves. And hence, also, it is a general rule in Equity (subject to certain exceptions, which will hereafter be noticed), that all persons materially interested, either legally, or beneficially, in the subject-matter of a suit, are to be made parties to it, either as plaintiffs, or as defendants, however numerous they may be, so that there may be a complete decree, which shall bind them all. By this means the Court is enabled to i Calvert on Parties, ch. 1, 91, p. 1, 2. 2 Mitf. Eq. Pl. by Jeremy, 163, 164 ; Id. 39 ; Cooper, Eq. Pl. 33; Caldwell . Taggart, 4 Peters, R. 190; West v. Randall, 2 Mason, R. 190 - 196; Joy v. Wirtz, 1 Washı. Cir. R. 517; Holland v. Prior, 1 Mylne & Keen, 240. 3 Knight o. Knight, 3 P. Will. 333 ; Post, § 174. * Mitf. Eq. Pl. by Jeremy, 164; Cooper, Eq. Pl. 33, 34 ; Id. 125; Palk o. Clinton, 12 Ves. 53, 54; Hickock v. Scribner, 3 John. Cas. 311, 315, 317 - 319; Joy u. Wirtz, 1 Wash. C. R. 517; Caldwell v. Taggart, 4 Peters, R. 190; Wendell v. Van Rensselaer, 1 Johns. Ch. R. 349; Calvert on Parties, ch. 1,0 1, p. 1, 2; Hoxie v. Carr, 1 Sumner, R. 172; Whiting u. Bank of United States, 13 Peters, R. 6-14; Hopkirk v. Page, 2 Brock. R. 20. make a complete decree between the parties, to prevent future litigation by taking away the necessity of a multiplicity of suits, and to make it perfectly certain, that no injustice is done, either to the parties before it, or to others, who are interested in the subjectmatter, by a decree, which might otherwise be grounded upon a partial view only of the real merits. When all the parties are before the Court, the whole case may be seen; but it may not, where all the conflicting interests are not brought out upon the pleadings by the original parties thereto. We shall hereafter have occasion to consider at large, who in the true sense of the rule are proper parties to the suit ; for it has been well observed, that it is not all persons, who have an interest in the subject matter of the suit, but, in general those only, who have an interest in the object of the suit, who are ordinarily required to be made parties. § 73. Lord Chief Baron Gilbert, after stating the rule, has illustrated its propriety and policy in the following manner: “Where a man seeks for an account of the profits or sale of a real estate, and it appears upon the pleadings, that the defendant is only a tenant for life, and consequently, the tenant in tail cannot be bound by the decree; and, where one legatee brings a Bill against an executor, and there are many other legatees (none of which will be bound, either by the decree, or by the account to be taken of the testator's assets,) and each of these legatees may draw the account in question over again at their leisure; or, where several persons are entitled, as next of, kin, under the statute of distributions, and only 1 West v. Randall, 2 Mason, R. 190, 191. one of them is brought on to a hearing ; or, where a man is entitled to the surplus of an estate, under a will, after payment of debts, and is not brought on; or, where the real estate is to be sold under a will, and the heir at law is not brought on; in these, and all other cases, where the decree cannot be made uniform, for, as, on the one hand, the Court will do the plaintiff right, so, on the other hand, they will take care, that the defendant is not doubly vexed, he shall not be left under precarious circumstances, because of the plaintiff, who might have made all proper parties at first, and whose fault it was, that it was not so done." § 74. Another illustration of the rule may be found in the case, where the ancestor has entered into a covenant to do certain acts, and bound himself and his heirs to the performance thereof. If he should die, and a Bill in Equity should be brought against the heir alone, to compel a performance of the covenant, the Court would require the executor or administrator of the ancestor to be made a party; because, if the latter had assets, the heir would be entitled, upon another Bill against him, to reimburse himself out of the personal assets. But, by uniting both in the same Bill , the Court would be enabled at once to do complete justice between all the parties, by decreeing the executor or administrator to perform the covenant, so far as the personal assets will extend, and the rest to be made good out of the real assets, descended to the heir. But, at law, the heir alone might be sued. $74, a. Another illustration may be derived from 1 Knight o. Knight, 3 P. Will. 331, 333 ; Calvert on Parties, 1-3. 2 Ibid. |