by the cestui que trust to compel such trustee to account for the loss the plaintiff has thereby sustained.41

43

It has been held: that a State is not an indispensable party to a bill, by the United States against a private individual, to cancel a contract between him and the State for the purchase of land obtained by the State from the National Government through mistake or fraud.42 In a suit by the United States to collect a bond such as the bond of a referee in bankruptcy or a contractor's bond or the bond of a postal clerk 45 for the benefit of individuals interested, the other parties interested in the recovery need not be joined. It has been held that a corporation, whose citizenship will defeat the jurisdiction, is not an indispensable party: to a suit by a stockholder to recover damage to his shares; 46 to a suit by a minority stockholder to compel the majority to account to the complainants for their share of the property, which such majority have misappropriated, nor to a suit in equity by bondholders against directors, to compel them to make good fraudulent representations recited in their mortgage.48 That an officer of a corporation, who has deposited with the defendants money, which it is charged he embezzled from the company, is not an indispensable party to a suit to establish a trust in the same.49 The holder of a certificate of stock in a corporation, which has been cancelled by a decree in another court, is not an indispensable party to a bill to compel the issue to the complainant of a new certificate for the same stock.50 Stockholders and creditors are not necessary parties to a suit to foreclose a lien.51 Where a bill does not disclose that any of them except the defendants are within the jurisdiction of the court, other stockholders in a similar position are not indispensable parties to a creditors' bill to re

47

41 Frank Waterhouse & Co. V. Dodge, C. C. A., 162 Fed. 1.

42 Williams v. U. S., 138 U. S. 514, 516, 34 L. ed. 1026, 1028.

43 U. S. v. Ward, C. C. A., 257 Fed. 372.

44 See supra, § 5a.

45 U. S. v. U. S. Fidelity & Guar anty Co., C. C. A., 242 Fed. 16.

46 Bogert v. Southern Pac. Co., 215 Fed. 218.

47 Kuchler v. Greene, 163 Fed. 91. 48 Slater Tr. Co. v. Randolph-Macon Coal Co., 166 Fed. 171.

49 White Swan Mines Co. v. Baliet, 134 Fed. 1004.

50 Citizens Sav. & L. Ass'n v. Belleville & S. I. R. Co., C. C. A., 117 Fed. 109.

51 Godchaux v. Morris, C. C. A., 121 Fed. 482.

52

cover the balance due upon stock issued at less than par." Members of the board of trustees of an unincorporated association who have no power to sue or be sued in its behalf and a subsidiary incorporation the stock of which is owned by the defendant association are not indispensable parties to a suit to recover its property and its control.53 It has been held: that to a bill to restrain the directors of a corporation from negotiating a fraudulent sale of its property, the person to whom the sale is about to be made is not an indispensable party if no contract has been made with him; 54 that a party, whose presence will defeat the jurisdiction, is not an indispensable party to a suit to enjoin the making of a contract with him; 55 that contractors with a city are not indispensable parties to a suit to enjoin the municipal corporation from creating a debt beyond the constitutional limit, by carrying out its contract with them,56 and that a non-resident is not an indispensable party to a bill to enjoin the transfer of property to it.57 That after affirmance of a judgment against him the defendant is not a necessary party to a suit by the surety on his supersedeas bond to enjoin the prosecution of an action upon the bond.58 That the widower is not an indispensable party to a suit by his wife's administrator to set aside a deed given to him and her.59 In proceedings under section 18 of the Interstate Commerce Act against a railroad company to enforce an order of the commission, it is not necessary that another carrier making the forbidden rate jointly with the defendant be made a party when it is without the jurisdiction.60

52 Second Nat. Bank v. Georger, 246 Fed. 517.

53 Helm v. Zarecor, 213 Fed. 648. 54 Abbot v. American H. R. Co., 4 Blatchf. C. C. 489; Wallace v. Holmes, 99 Blatchf. C. C. 65; General Inv. Co. v. Lake Shore & M. S. Ry. Co., C. C. A., 205 Fed. 160.

55 Cherokee Nation v. Hitchcock, 187 U. S. 294, 47 L. ed. 183; Wilson v. Am. Palace Car Co., 67 N. J. Eq. 262, 58 Atl. 195; Gen. Inv. Co. v. Lake Shore & M. S. Ry. Co., C. C. A., 250 Fed. 160, 177, see infra, § 120.

Fed. Prac. Vol. I-46

56 City Water Supply Co. v. Ottumwa, 120 Fed. 309. But see infra, § 120.

57 Wilson v. Am. Palace Car. Co., 67 N. J. Eq. 262, 58 Atl. 195. See City Water Supply Co. v. Ottumwa, 120 Fed. 309.

58 Maryland Casualty Co. v. Repass, C. C. A., 253 Fed. 328.

59 Grigsby v. Miller, 231 Fed. 521. 60 Interstate Com. Com 'n v. Texas & P. Ry. Co., 52 Fed. 187; s. c. as T. & P. Ry. Co. v. Interstate Com. Com'n, 162 U. S. 197, 265, 40 L. ed. 940.

To a suit by one indorser of a bill of exchange to restrain the collection of a judgment against him upon the ground that the bill has been paid by another indorser, the latter is not a necessary party.61 To a bill by a creditor to satisfy a judgment out of land in a debtor's possession, but fraudulently conveyed by him to a person beyond the jurisdiction of the court, the person in whose name the land stood was held not to be an indispensable party.6

62

It has been held that a tenant in common of a water-right may sue to enjoin an injury to the property without making his co-tenant a party; 63 but that where the complainant seeks an injunction against interference by owners of the upland with his right to divert the water for irrigation, all persons who claim any right to use the waters of the stream are indispensable parties, although their joinder would defeat the jurisdiction.64

It has been said that, to a bill by a private individual to enjoin the maintenance of a public nuisance, neither persons jointly interested with him nor those jointly guilty with the defendant are indispensable parties.65 It has been held that the holder of a stumpage contract is not a necessary party to a suit to recover the timber on the land.66 It has been suggested that the absence of one person guilty of a joint fraud might not prevent the court from taking jurisdiction over the others.67 And in general to an action for damages for a tort 68 or for an

61 Atkins v. Dick, 14 Pet. 114, 10 L. ed. 378.

62 McCoy v. Rhodes, 11 How. 131, 141, 13 L. ed. 634, 638. But see Billings v. Aspen M. & S. Co., 51 Fed. 338.

63 Union M. & M. Co. v. Dangberg, 81 Fed. 73, 87; Washington State Sugar Co. v. Sheppard, 186 Fed. 233.

64 Washington State Sugar Co. v. Sheppard, 186 Fed. 233. Contra, in view of the water code of Oregon, Act of February 24, 1909, L. 1909, p. 319, it was held that, where a suit was there brought to enjoin the defendants from using the waters of a stream, the Federal court should require the parties

either to proceed under the statute or to bring in all other persons in interest. Pacific Live Stock Co. v. Silvies River Irr. Co., 200 Fed. 487. 65 Miss. & Mo. R. Co. v. Ward, 2 Black, 485, 17 L. ed. 311.

66 Keith Lumber Co. v. Houston Oil Co., C. C. A., 257 Fed. 1.

67 Judge Dwight Foster in Palmer v. Stevens, 100 Mass. 461, 466. See also Heath V. Erie Ry. Co., 8 Blatchf. C. C. 347 and note 2 supra. 68 Rouiller v. A. & B. Schuster Co., 212 Fed. 348; Seattle v. Gr. Northern Ry. Co., 239 Fed. 1009, infra, 88 540, 541. But see Bell v. Donohoe, 17 Fed. 710; Wall V. Thomas, 41 Fed. 620.

injunction against a tort,69 not committed under color of a contract right, or against the infringement of a patent when no accounting is prayed,70 or even in case of the conversion of mining ore in a suit for an accounting," one or more of the joint wrong-doers may be omitted. The proper remedy by a creditor of a corporation to enforce the individual liability of its directors 72 or stockholders, or to collect unpaid assessments or subscriptions from the latter 73 are previously discussed.

The United States are not indispensable parties to a suit to declare that a land patent wrongfully obtained from them is held in trust for the complainant. The United States are not indispensable parties to a suit to enjoin a marshal from executing a judgment in their favor which was entered without jurisdiction; 75 but it has been held that an Indian agent is a proper, although not an indispensable, party to a suit to determine rights under leases of Indian lands.76

69 Miss. & Mo. R. Co. v. Ward, 2 Black, 485, 17 L. ed. 311; Cole Silver Min. Co. v. Virginia & Gold Hill Water Co., Fed. Cas. No. 2,989 (1 Sawy. 470). The directors of a corporation are not indispensable par. ties to a suit by a stockholder to restrain it from acting in violation of his rights fraudulently or ultra vires, 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; Sidway v. Missouri L'd & L. S. Co., 116 Fed. 381; Witherbee v. Bowles, 201 N. Y. 427. A corporation, the entire capital stock of which is owned by another company, is not an indispensable party to a suit by a stockholder of the latter, to restrain the latter from leasing the former's railroad. Sabre v. United Tr. & El. Co., 156 Fed. 79, 81.

70 American B.-Mach. Co. v. Crosman, 57 Fed. 1021 (partners). The officers, agents and stockholders of a corporation may be enjoined from infringing a patent while acting for

the company when the corporation itself is not a party and is beyond the jurisdiction. Edison El. L. Co. v. Packard El. L. Co., 61 Fed. 1002.

71 Silver King Coalition Mines Co. v. Silver King Consol. Min. Co., C. C. A., 204 Fed. 166.

72 Supra, $81a. See Horner v. Henning, 93 U. S. 228, 23 L. ed. 879; Terry v. Little, 101 U. S. 216, 25 L. ed. 864; Terry v. Tubman, 92 U. S. 156, 23 L. ed. 537; Pollard v. Bailey, 20 Wall. 526, 22 L. ed. 378; Welles v. Graves, 41 Fed. 459; First Nat. Bank v. Peavey, 75 Fed. 154. But see Alderson v. Doyle, C. C. A., 74 Fed. 29.

73 Supra, $ 82. Knox Ins. Co., 22

See Ogilvie v. How. 380, 16 L.

ed. 349; Hatch v. Dana, 101 U. S. 205, 25 L. ed. 885; Manufacturing Co. v. Bradley, 105 U. S. 175, 26 L. ed. 1034.

74 Daniels v. Wagner, 237 U. S. 547.

75 Buckley v. U. S., 196 Fed. 429. 76 Texas Co. v. Central Fuel Oil Co., C. C. A., 194 Fed. 1.

A State is not an indispensable party to a bill seeking to restrain its officers from levying for its benefit an illegal tax,77 nor, it has been held, to a bill to prevent their illegal issue of land warrants for property which it had agreed to convey to the plaintiff; 78 nor to a bill to restrain their unlawful issue of bonds which would diminish the value of bonds held by the complainant. To such bills the persons to whom the unlawful issue of bonds or land warrants is about to be made, are not indispensable parties.80

It has been said, that, in proceedings to establish claims against decedents estates, the Federal courts should follow the local law, and that no persons are indispensable parties who would not be such were the proceedings instituted in a State court.8

81

§ 120. Parties indispensable to a decree. Nó suit, however, can proceed unless the court have before it as parties all persons who will be directly affected by the decree sought, or whose obedience is necessary to its enforcement, when it does not appear that they consent thereto. A person is affected by a decree when his rights against, or liability to, any of the parties to the suit is thereby determined. If a decree in favor of the complainant would cast a cloud upon another's title, that person, it seems, is thereby directly affected. To a bill by a legatee against the husband of a residuary legatee or devisee to obtain payment of the complainant's legacy from assets in the defendant's possession, the residuary legatee herself, or, if she be dead,

77 Osborn v. Bank of U. S., 9 Wheat. 738, 6 L. ed. 204; Dodge v. Woolsey, 18 How. 331, 15 L. ed.

401.

78 Davis v. Gray, 16 Wall. 203, 21 L. ed. 447; Hancock v. Walsh, 3 Woods, 351. But see Cunningham v. Macon & B. R. Co., 109 U. S. 446, 453, 27 L. ed. 992, 994.

79 Board of Liquidation v. MeComb, 92 U. S. 531, 23 L. ed. 623; supra, 105b.

80 Davis v. Gray, 16 Wall. 203, 233, 21 L. ed. 447, 457; Cherokee Nation v. Hitchcock, 187 U. S. 294, 47 L. ed. 183.

81 Farmers' Bank of Cuba City, Wis. v. Wright, 158 Fed. 841.

§ 120. 1 See infra, § 122. But see Eagle Mfg. Co. v. Miller, 41 Fed. 351.

2 Young v. Cushing, 4 Biss. 456; California v. Southern Pac. R. Co., 157 U. S. 229, 395 L. ed. 683. But see Hicklin v. Marco, 56 Fed. 549. It was held improper to compel defendant to make a deed confirming complainant's title to land conveyed by the latter's grantors when such grantors were not parties. Zenbrugg v. Reed (N. J. Ch., 1896), 35 Atl. 298.