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Persons having a united interest must be joined on the same side as plaintiffs or defendants, but when any one refuses to join, he may for such reason be made a defendant."8 Where a contract is joint, all the obligees of the obligation sought to be enforced must be joined as plaintiffs, but when the residence of one of them would defeat the jurisdiction all the obligors need not be joined as defendants.10 When a suit might have been brought by either a corporation or the owner of its stock alone, it was held that the defendant could not complain because both were joined as complainants.11

§ 111. Parties with no interest in the subject-matter of the suit. As a general rule, no person can be made a party against whom, if brought to a hearing, the plaintiff can have no decree.1 The clerk of a court is not a proper party to a suit to enjoin the enforcement of a judgment entered in his office. The English practice allowed strangers in certain cases to be made parties for the sake of discovery, and even in order to mulet them with costs. In a suit against a corporation, its officers, book-keeper, or members might be made parties for the sake of discovery concerning matters which had come to their knowledge while transacting the business of the corporation; 3 but not, it seems to obtain discovery of such as they knew only through their participation in its formation. It is held in the Federal. courts that when an answer under oath is waived, it is improper to make the officers of a corporation parties to a suit against it, if no relief is asked against them; and a demurrer by them to

8 Eq. Rule 37.

9 Himes v. Schmehl, C. C. A., 257 Fed. 69.

10 Camp v. Gress, 250 U. S. 308. 11 Bellevue Mills Co. v. Baltimore Trust Co., 214 Fed. 817, aff'd C. C. A., 223 Fed. 753. See infra, § 140. § 111. 1 Wych V. Meal, 3 P. Wms. 310, 311, note; Dan. Ch. Pr. (2d Am. ed. 342.)

2 Buckley v. U. S., 196 Fed. 429; Wm. A. Rogers v. Nichols, C. C. A., 124 Fed. 415.

3 Wych v. Meal, 3 P. Wms. 310, Anon., 1 Vern. 117; Fenton V. Hughes, 7 Ves. 289; Glyn v. Soares, 1 Y. & C. 644; Many v. Beekman

Iron Co., 9 Paige (N. Y.) 189; Doyle v. San Diego L. & Tr. Co., 43 Fed. 349; Virginia & A. Min. & Mfg. Co. v. Hale, 93 Ala. 542, 9 So. 256; Continental Nat. Bank v. Heilman, 66 Fed. 184; Consolidated Brake Shoe Co., v. Chicago P. & St. L. Ry. Co., 69 Fed. 412; Calvert on Parties (2d ed.) 92-94. But see Boston W. H. Co. v. Star R. Co., 40 Fed. 167; Cleveland F. & B. Co. v. U. S. Rolling S. Co., 41 Fed. 476; Calahan v. Holland-Cook Mfg. Co., 201 Fed. 607, quoting with approval the author upon the subject.

4 McComb v. Chicago, St. L. & N. O. R. Co., 7 Fed. 426.

such a bill making them parties defendant was sustained.5 Officers of corporations, who have taken no part in an unlawful contract that it has made, are not proper parties to a suit for an injunction against its enforcement.6 It has been held that cfficers of a corporation, who have committed no acts of infringement except in their official capacity, cannot properly be made defendants to a suit to enjoin the infringement of a patent,7 or trademark, unless the corporation is insolvent; or unless the officers took an active part in the infringement or directed the same 10 or in the formation of the corporation to continue infringements made by themselves in their individual ity; or under other special circumstances. 12 Where an of a corporation has actively participated in an infringement 13

5 Colonial & U. S. Mtg. Co. Ltd., v. Hutchinson Mtg. Co., 44 Fed. 219; Matthews & W. Mfg. Co. v. Trenton L. Co., 73 Fed. 212. See Boston W. H. Co. v. Star Rubber Co., 40 Fed. 167.

6 U. S. v. Standard Sanitary Mfg. Co., 191 Fed. 172.

7 Loomis-Manning Filter Co. V. Manhattan Filter Co., 117 Fed. 325; Farmers' Mfg. Co. v. Spruks Mfg. Co., 119 Fed. 594; Greene v. Buckley, 120 Fed. 955; National Casket Co. v. Stolts, C. C. A., 135 Fed. 534 (a suit against the agent of a joint stock association); Glucose Sugar Refining Co. v. St. Louis, S. & P. Co., 135 Fed. 540; Weston El. Instrument Co. v. Empire Electrical Instrument Co., C. C. A., 177 Fed. 1006; Steber Mach. Co. v. Random Knitting Co., 217 Fed. 796. See Wm. A. Rogers v. Nichols, C. C. A., 224 Fed. 415; Reis v. Rosenfeld, 204 Fed. 282. Contra, Peters v. Union Biscuit Co., 120 Fed. 679, 685. See Saxlehner v. Eisner, C. C. A., 147 Fed. 189; s. c., 140 Fed. 938.

8 Vassar College v. Loose Wiles Biscuit Co., 197 Fed. 982; Wm. A. Rogers v. Nichols, C. C. A., 224 Fed. 415.

9 Saxlehner v. Eisner, L 938.

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10 Where an officer of a tion was joined with it fendant to a suit for the ment, it was held that he liable to account for profits by the corporation alone Sherry Mfg. Co. v. Dowagi Co., C. C. A., 160 Fed. 948 cock v. Am. Plate Glass Co., 259 Fed. 948. But that officer was liable for such as he had received from the ment by dividends, salary, ›ayment for his time, or in any other way. Hitchcock v. Am. Plate Gla==

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cr other tort,14 or the violation of a contract by the corporation,16 he may be joined with the latter in an action by the party injured. Where fraud or ultra vires is charged against them, the officers, directors and attorneys, of a corporation, are proper,17 but not indispensable parties.18 Stockholders who have not taken part in the transactions of which complaint is made are improper parties defendant to a suit for an injunction; 19 not even, it has been held, in a stockholders' suit,20 nor in the case of a corporation holding a majority of the stock of another corporation, which has taken part in an infringement; 21 but they may be joined when they have organized the corporation with a small capital for the purpose of the infringement.22 A party, with whom a corporation has contracted, to make the article which is charged to be an infringement of a patent, and another corporation, with whom he has contracted to have the same made, are properly joined as parties defendant to an infringement suit.23 Community of officers, directors, and stock

v. Random Knitting Co. et al., 217 Fed. 796. A surety company which, in aid of an infringing paving contractor, executed a bond to indemnify the city which employed him against liability for infringement thereby became a party to the infringement and jointly liable for the consequences. Saxlehner V. Eisner, 140 Fed. 938. See Am. Bank Protection Co. v. El. Protection Co., 181 Fed. 350.

14 Board of Trade v. Price et al., C C. A., 213 Fed. 336; Favorite v. Cottrill, 6 Mo. App. 119; Peck v. Cooper, 112 Ill. 192, 54 Am. Rep. 231; Cameron v. K.-C. Com. Co., 22 Montana 312.

16 United Cigarette Mach. Co. v. Winston C. Mach. Co., C. C. A., 194 Fed. 947. 17 Geer V. Mathieson Alkali Works, 190 U. S. 428, 436, 47 L. ed. 1122, 1126; Ervin v. Oregon Ry. & Nav. Co., 27 Fed. 625; Jones v. Missouri-Edison Electric Co., C. C. A., 144 Fed. 765; United Cigarette

Mach. Co. v. Winston, C. Mach. Co.,
C. C. A., 194 Fed. 947; Ferguson v.
Wilson, L. R. 2 Ch. App. 77, 90;
Clinch v. Financial Corporation, L.
R. 4 Ch. App. 117.

18 Sidway v. Missouri Ld. & L. S. Co., 116 Fed. 381; Geer v. Mathieson Alkali Works, 190 U. S. 428, 436, 47 L. ed. 1122, 1126; Hatch v. Chicago, Rock Island & Pac. R. R. Co., 6 Blatchf. 105, 114.

19 Westinghouse El. & Mfg. Co. v. Allis-Chalmers Co., 168 Fed. 91; Johns-Pratt Co. v. Sachs Co., C. C. A., 175 Fed. 70.

20 McCrea V. McClenahan, 114 App. Div. (N. Y.), 70.

21 Westinghouse El. & Mfg. Co. v. Allis-Chalmers Co., 168 Fed. 91.

22 Crown Cork & Seal Co. v. Brooklyn Bottle Stopper Co., 172 Fed. 225; s. c., 190 Fed. 323.

23 Nat. Mechanical Directory Co. v. Polk, 121 Fed. 742; Reliance Const. Co. v. Hassam Paving Co., C. C. A., 248 Fed. 701.

owners is not sufficient in the absence of other evidence to render one corporation liable for acts of infringement committed by another on the premises occupied by both.24

The State Attorney General and the County Prosecutor are proper parties defendant to a suit to enjoin the enforcement of a State statute, the violation of which is declared a criminal offence.25 A party cannot be made defendant to a suit because he has contributed to the defense of the same.2 26

Agents to sell, auctioneers, arbitrators, and attorneys, could, under the former practice, be made defendants for the purpose of discovery in any suits against their principals concerning transactions, with which they were connected; 27 but it is now held, that this cannot usually be done where their principals are peculiarly responsible.28 And in a few cases of fraud it has been held that persons implicated in the fraud might be made parties merely to make them liable for costs.29

The obligor of an agreement to loan a mortgagor the difference between its earnings and its operating expenses and mortgage interest, and to pay the mortgagee such balance as might be due for interest and sinking fund, when the mortgage covered the mortgagor's rights under this contract but did not authorize a sale of such rights, was held not to be a necessary or proper party to a foreclosure suit and the court refused to order that it be brought in.30 An Indian agent is a proper, although not an indispensable party, to a suit to determine rights under leases of Indian lands.31

24 Union Sulphur Co. v. Freeport Texas Co., 251 Fed. 634.

25 Little v. Tanner, 208 Fed. 605. 26 Parsons Non-Skid Co. v. E. J. Willis Co., 176 Fed. 176.

27 Fenton v. Hughes, 7 Ves. 288, 289; Dummer v. Corporation of Chippenham, 14 Ves. 252; Bowles v. Stewart, 1 Scho. & Lefr. 209; Brady v. McCorker, 1 N. Y. 214; S. C., 1 Barb. Ch. 343.

28 Seiferd v. Mulligan, 36 App. Div. (N. Y.) 33; Bowles v. Stewart, 1 Scho. & Lef. 209.

29 Texas Co. v. Central Fuel Oil Co.,

C. C. A., 194 Fed. 1; Taylour v.
Rochford, 2 Ves. Sen. 281; Smith v.
Green, 37 Fed. 424; Huggins v.
King, 3 Barb. (N. Y.) 617; Ham-
mond v. Hudson R. I. & N. Co., 20
Barb. (N. Y.) 386; Pritchard v.
Palmer, 88 Hun. 412; Calvert on
Parties (2d ed.), 96, and cases cited.
See Ervin v. Oregon Ry. & Nav. Co.,
27 Fed. 625.

30 Ex parte Equitable Trust Co., C. C. A., 231 Fed. 573.

31 Texas Co. v. Central Fuel Oil Co., C. C. A., 194 Fed. 1.

§ 112. Persons who on account of their interest need not be made parties to a suit in equity. No persons should be joined as parties to a suit in equity, either as co-plaintiffs or co-defendants, who are not directly interested in obtaining or resisting the relief prayed for in the bill or who claim the property in question under inconsistent titles.

3

Thus, prior incumbrancers should not be made parties to a bill for the foreclosure of a mortgage, unless it prays for a receiver, or seeks to obtain a sale of the entire mortgaged property free from all liens,5 or unless "there is substantial doubt respecting the amount of debts due prior lien creditors," in which case "there is obvious propriety in making them parties, that the amount of the charge remaining on the land after the sale may be determined, and that purchasers at the sale may be advised of what they are purchasing;" or unless there are other peculiar circumstances making it necessary. Nor need a mortgagor who has sold his equity of redemption," or a guarantor of the mortgage debt even if he has paid interest, be made a party to a foreclosure, unless relief is sought against him. When, however, such relief is sought against the mortgagor or a grantee of the equity of redemption who has assumed payment of the mortgage, all grantees who have made such an assumption should ordinarily be joined as defendants in order that their respective rights may be determined.10 Lessees are

§ 112. 1 Calvert v. Parties (2d ed.) 6; Mare v. Malachy, 1 M. & C. 559; Seymour v. Farmers' L. & T. Co., C. C. A., 128 Fed. 907.

2 Calvert on Parties (2d ed.). 105; Marquis Cholmondely v. Lord Clinton, 2 Jac. & W. 138 Saumarez v. Saumarez, 4 M. & C. 331; Dial v. Reynolds, 96 U. S. 340, 24 L. ed. 644; infra, § 141.

3 Hagan v. Walker, 14 How. 29, 37, 14 L. ed. 312, 316; Jerome v. MeCarter, 94 U. S. 734, 24 L. ed. 136; Nalle v. Young, 160 U. S. 624, 40 L. ed. 560.

4 Miltenberger v. Logansport Ry. Co., 106 U. S. 286, 306, 27 L. ed. 117, 125.

5 Hagan v. Walker, 14 How. 29, 14 L. ed. 312; Jerome v. McCarter, 94 U. S. 734, 735, 24 L. ed. 136, 137: McClure v. Adams, 76 Fed. 899.

6 Strong, J., in Jerome v. McCarter, 94 U. S. 734, 735, 736, 24 L. ed. 136, 137.

7 Kanawha Coal Co. v. Kanawha & O. C. Co., 7 Blatch. 391, 416; Grove v. Grove, 93 Fed. 865. But see Matcalm v. Smith, 6 McLean, 416. As to receivers, infra, § 113. 8 Columbia F. & Trust Co. v. Kentucky U. Ry. Co., 60 Fed. 794. 9 Ayers v. Wisawall, 112 U. S. 187, 28 L. ed. 693.

10 Skinner v. Harker, 23 Colo. 333; s. c., 48 Pac. 648. But see

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