Rule 25. Bill of complaint-Contents. Hereafter it shall be sufficient that a bill in equity shall contain, in addition to the usual caption:

First, the full name, when known, of each plaintiff and defendant, and the citizenship and residence of each party. If any party be under any disability that fact shall be stated.

Second, a short and plain statement of the grounds upon which the court's jurisdiction depends.

Third, a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere statement of evidence.

Fourth, if there are persons other than those named as defendants who appear to be proper parties, the bill should state why they are not made parties-as that they are not within the jurisdiction of the court, or cannot be made parties without ousting the jurisdiction.

Fifth, a statement of and prayer for any special relief pending the suit or on final hearing, which may be stated and sought in alternative forms. If special relief pending the suit be desired the bill should be verified by the oath of the plaintiff, or someone having knowledge of the facts upon which such relief is asked."

The bill must be signed by counsel (Rule 24), but need not be sworn to by the plaintiff unless some special relief is desired (Rule 25), such as a temporary restraining order (Rule 73).

Rule 26. Joinder of causes of action. The plaintiff may join in one bill as many causes of action, cognizable in equity, as he may have against the defendant. But when there is more than one plaintiff, the causes of action joined must be joint, and if there be more than one defendant the liability must be one asserted against all of

7-As to stockholder's bill, see

rule 27.

the material defendants, or sufficient grounds must appear for uniting the causes of action in order to promote the convenient administration of justice. If it appear that any such cause of action cannot be conveniently disposed of together, the court may order separate trials.

tiff

Rule 28. Amendment of bill as of course. The plainmay, as of course, amend his bill before the defendant has responded thereto, but if such amendment be filed after any copy has issued from the clerk's office, the plaintiff at his own cost shall furnish to the solicitor of record of each opposing party a copy of the bill as amended, unless otherwise ordered by the court or judge.

After pleading filed by any defendant, plaintiff may amend only by consent of the defendant or leave of the court or judge.

8

§ 107. Parties. It is a general rule that the decision of a court is not binding upon a person not a party to the proceeding, or not claiming under a party; but the practice in equity differs from the practice at law in two respects: (1) in the necessity of joining as parties all persons interested in the subject-matter of the suit; and (2) in the privilege the plaintiff sometimes has of joining as defendant one who would naturally be a plaintiff.

These differences grow out of the essential difference in nature and object between a suit in equity and an action at law. At law a disputed issue alone is contested, and the object of the pleadings is to bring the controversy to a single point which is to be decided. It follows that only the immediate disputants can be affected and bound by the decision, and hence they alone are proper parties to the action. Moreover, since at law the judgment is always either for the plaintiff or for the defendant, and never partly for one and partly for the other, the positions of the parties is all important. In equity a decree 8- See, also, rules 19, 43, and 45.

is asked and not a decision only. The court delights to do justice completely and not by halves. Its object is to settle in one suit the rights of all parties interested in the subject-matter of the controversy, and thus avoid a multiplicity of suits, and put an end to litigation. Hence all persons materially interested in the event of the suit must ordinarily be made parties.

The general rule in equity pleading is that all persons, however numerous, whose interests may be affected by the proposed decree, or whose concurrence is necessary to a complete arrangement, must be before the court, either as plaintiffs or as defendants. Moreover, since the decree may be moulded to suit the case, and be partly in favor of one side and partly in favor of the other, the position of the parties, whether as plaintiffs or defendants, is not always material. It is enough that all interested parties are before the court.

Conversely to the rule that all interested persons must be made parties in an equity suit, is the rule that, ordinarily, no person wholly without interest, or against whom no relief whatever is sought, either by way of discovery or otherwise, need or may be made a party.

In accordance with the above principles parties are usually divided in equity into several classes as follows: (1) Necessary or indispensable parties; (2) proper, but not indispensable parties, and (3) formal or nominal parties. These terms are largely self-explanatory, but may be defined as follows:

A necessary party in equity practice generally is the same as an indispensable party, that is, one whose interest in the subject-matter of the suit is such that the court will not proceed to judgment without him. In the federal courts, however, owing to their limited jurisdiction, a distinction is drawn between parties who are absolutely necessary and those who are conditionally necessary. Those who are absolutely necessary are indispensable parties, and the suit will not proceed without them. Those

who are conditionally necessary must be made parties if they are within the jurisdiction of the court and can be joined without destroying the jurisdiction of the court. But if they are beyond the reach of process, or if joining them would oust the court of jurisdiction, they need not be joined. An indispensable party is one whose interest is such that no decree can be entered, even as to other parties, without injustice to him unless he is before the court.

The rule permitting the omission of a conditionally necessary party becomes of special importance in cases in which the jurisdiction of the federal court depends solely upon diversity of citizenship. In such cases all the plaintiffs must be of different citizenship from all the defendants, and if it were absolutely necessary to bring in all interested parties the court might easily be ousted of jurisdiction by reason of the fact that a plaintiff and a defendant are citizens of the same state. If both are indispensable, neither can be omitted and the court cannot take jurisdiction, but if one is merely a conditionally necessary party he may be left out and the jurisdiction preserved.

A proper party, as distinguished from a necessary party, is one who has an interest in the subject-matter of the litigation which may conveniently be adjudicated in the suit but whose presence is not essential to the complete settlement of the controversy as to the other parties.

A formal or nominal party is one who has no real interest in the subject-matter of the suit, but who may or should be joined under some technical rule of practice in a suit to enforce the rights of others who are the real parties in interest. Thus where one person is required to sue in the name of another who has no real interest in the controversy, the party in whose name the suit is brought is a formal or nominal party."

9-As to parties, see Street, Fed. v. Barrow, 17 How. 130; Barney v. Equity Practice, 88 502-538; Shields Baltimore City, 6 Wall. 280; Wil

Long-10

The foregoing covers the main rules and distinctions as to parties as developed prior to the adoption of the new equity rules. The present rules on the subject of parties are as follows:

Rule 37. Parties generally-Intervention. Every action shall be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute, may sue in his own name without joining with him the party for whose benefit the action is brought. All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs, and any person may be made a defendant who has or claims an interest adverse to the plaintiff. Any person may at any time be made a party if his presence is necessary or proper to a complete determination of the cause. 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.

Anyone claiming an interest in the litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding.

Rule 38. Representatives of class. When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole.

Rule 39. Absence of persons who would be proper parties. In all cases where it shall appear to the court

liams v. Bankhead, 19 Wall. 563; Waterman v. Canal-Louisiana Bank, etc., Co., 215 U. S. 33.