against the whole body of confederates who unite for the commission of an act in violation or fraud of the rights of complainant, however numerous the parties may be, and even though, in carrying out the details, each one of the several confederates may have performed acts, or claim to have acquired rights, personal to himself, and distinct from those acquired by the oth

If the complainant desires to make new parties, he amends his bill and makes them. If the interest of the defendant requires their presence, he takes the objection of nonjoinder, and the complainant is forced to amend, or his bill is dismissed. If, at the hearing, the court finds that an indispensable party is not on the record, it refuses to proceed.189 Where, in the progress of a suit, a third person is found to be interested, he should be made a party.190 A complainant cannot be compelled to add new parties to his bill, if he chooses to take the responsibility of their not being made parties.191 A defendant cannot object to the action of the court in making, with complainant's assent, new defendants.192 A person may come in on the hearing and consent to be bound by the decree, and thus obviate any error in not making him a formal party to the bill.193

of London v. Perkins, 3 Brown, Parl. Cas. 602. See, also, Story, Eq. Pl. § 124; Mitford, Eq. Pl. 144, 146; 1 Pomeroy, Eq. Jur. §§ 246-249.

188 New York & N. H. R. Co. v. Schuyler, 1 Abb. Pr. (N. Y.) 417. For full discussion of joinder of defendants, see 1 Pomeroy, Eq. Jur. §§ 243-275.

189 Shields v. Barrow, 17 How. (U. S.) 145; Ex parte Printup. 87 Ala. 148, 6 So. 418.

190 Carman v. Watson, 1 How. (Miss.) 333.

191 Searles v. Jacksonville, P. & M. R. Co., 2 Woods, 621, Fed Cas. No. 12,586; Leiter v. Field, 24 Ill. App. 123; Shields v. Barrow, 17 How. (U. S.) 145; Ex parte Printup, 87 Ala. 148, 6 So. 418. A bill does not lie to compel defendant to make complainant a co-complainant with defendant in another suit. Carter v. Smith, 35 Fla. 169, 17 So. 411 192 Exchange & Deposit Bank v. Bradley, 15 Lea (Tenn.) 279. 193 Hannas v. Hannas, 110 Ill. 53. For right to bring in new parties by supplemental bill, see Hoppock v. Cray (N. J. Eq.) 21 Atl. 624; Jen

§ 54. Substitution of parties.

Statutory provisions in most jurisdictions are found relative to the substitution of parties complainant and defendant, where the original parties have died, become incompetent to transact business, or their interest or title in the suit has been divested, or the suit otherwise abated. Such statutes should be consulted when the case requires, as they will frequently be found to be simpler than the ordinary procedure under the rules of chancery practice.194 As a rule, a statute authorizing the revivor of suits on a summary application to the court, by motion or petition, although intended to provide a substitute for a bill of revivor, does not prohibit such a bill in any of the cases coming within the provisions of the statute. Such a bill may be filed whenever there is a proper case for it, notwithstanding the statute has provided another method of reviving a suit by a cheaper and more simple process.195 Supplemental bills are also used to bring in new parties, when there is a defect in the proceedings occurring too late to be remedied by amendment, or where, by an event subsequent to the commencement of the suit, a new interest in the matter in litigation is claimed by an existing party to the suit, or a new party claims not by mere operation of law the interest which was claimed by an existing party.1 Bills of revivor, bills in the nature of bills of revivor, bills in the nature of supplemental bills, bills of revivor and supplement, and bills in the nature of bills of revivor and sup

196

kins v. Freyer, 4 Paige (N. Y.) 47; Bogardus v. Trinity Church, 4 Sandf. Ch. (N. Y.) 369. Liberal statutes relative to amendments are now found in most jurisdictions, and new parties may be brought in by amendment. Hungerford ▼. Cushing, 8 Wis. 332; Ensworth v. Lambert, 4 Johns. Ch. (N. Y.) 605.

194 The method of reviving suits in cases of abatement, which is merely an interruption to the suit, suspending its progress until new parties are brought before the court, will be hereafter considered. See Hoxie v. Carr, 1 Sumn. 173, Fed. Cas. No. 6,802; 1 Barbour, Ch. Pr. 674.

195 2 Barbour, Ch. Pr. 34. See, however, Keep v. Crawford, 92 Ill. App. 587. See post, §§ 848-878, 962-968.

196 2 Barb. Ch. Pr. 59. See post, §§ 825-847, 969-973.

plement, which will be hereafter considered, are also used for

this purpose.

§ 55. Intervention.

"Intervention" is a civil-law term, and is the act by which a party, not originally a party, interposes in a suit his claim, which is frequently adverse to one or both of the original litigants.197 It is the common practice of the court to permit strangers to a litigation, claiming an interest in the subject-matter, to intervene on their own behalf to assert their demands.198 That a stranger to a suit will not be permitted on his own application, and over the objection of the complainant, to become a defendant, is a well-established general rule, to which there are but few exceptions.199 No one is permitted to be made or to become a party in a suit unless he has an interest in its object or subject-matter.200 A distinction is made between suits in personam and suits in rem. A stranger can have no interest, in a legal sense, in the claim asserted in a suit in personam, unless it is necessary that such person, not a party, shall be made a party, in order to properly enforce such claim; but in a suit in rem, persons not parties may have a claim on or interest in the res, and may intervene.201 Persons desiring to intervene should take, with due diligence, the requisite steps so to do.202

197 Hyman v. Cameron, 46 Miss. 725.

198 Krippendorf v. Hyde, 110 U. S. 276; Marsh v. Green, 79 Ill. 385; Phillips v. Wesson, 16 Ga. 137; Birdsong v. Birdsong, 2 Head (Tenn.) 289; Robertson v. Baker, 11 Fla. 192; Foster, Fed. Pr. (3d Ed.) § 201. 199 Toler v. East Tennessee, V. & G. Ry. Co., 67 Fed. 171; Stretch v. Stretch, 2 Tenn. Ch. 140; Ex parte Printup, 87 Ala. 148, 6 So. 418. The right to intervene is not well settled in all jurisdictions. See Smith v. Evans, 3 A. K. Marsh. (Ky.) 217; Davis v. Harrison, 2 J. J. Marsh, (Ky.) 189; Whitney v. Hanover Nat. Bank, 71 Miss. 1009, 15 So. 33, 23 L. R. A. 531; Stretch v. Stretch, 2 Tenn. Ch. 140; Ex parte Printup, 87 Ala. 148, 6 So. 418; Renfro v. Goetter, 78 Ala. 311.

200 Krippendorf v. Hyde, 110 U. S. 276; Carter v. City of New Or leans, 19 Fed. 659; Miller, Eq. Proc. 97; Marsh v. Green, 79 Ill. 385. 201 Miller, Eq. Proc. 97, citing Coleman v. Martin, 6 Blatchf. 119, Fed. Cas. No. 2,985.

202 Central Trust Co. v. Texas & St. L. Ry. Co., 24 Fed. 153.

In a case brought to a court of review by appeal, none save such as are parties to the record therein have a right to be heard. If there are interests such as would make it proper to intervene in the cause, such intervention must begin in the court of original jurisdiction, and cannot be allowed in the court of review.203 The practice of permitting judgment creditors to come in and make themselves parties to a creditors' bill, and thereby obtain the benefit of the suit, assuming at the same time their proportion of the costs and expenses of the litigation, is well settled.204 A petition to become a party to a suit in equity, where the record does not show the nature of the suit, is irregular, and must be dismissed.205 The petition to be admitted as a defendant should be accompanied by the proposed answer, but, not being so accompanied, the petition may be allowed to stand as the answer, all impertinent matters being stricken therefrom. 208 The petition may contain a statement of petitioner's view of the case, and pray, in addition to the right to intervene, the final relief desired.207 The mere filing of a petition to be made a party in a pending suit does not operate to make the petitioner a party. An order should be entered making the intervening petitioner a party defendant.208 There are cases, however, in which persons have been treated as parties, after having filed a petition for leave to come in, when no formal order admitting them appears in the record; but in all such cases it will be found that they have acted or been recognized as parties in the subsequent proceedings. 209 The parties to an original bill are, in fact, parties to an intervening petition filed in the suit, and, even though

203 Blatchford v. Newberry, 100 Ill. 484.

204 Beach, Mod. Eq. Pr. § 576; Libby v. Norris, 142 Mass. 246, 7 N. E. 920.

205 Ransom v. Winn, 18 How. (U. S.) 295; Foster, Fed. Pr. § 201. 206 Toler v. East Tennessee, V. & G. Ry. Co., 67 Fed. 168.

207 French v. Gapen, 105 U. S. 509, cited in Foster, Fed. Pr. § 201; Empire Distilling Co. v. McNulta, 46 U. S. App. 578, 77 Fed. 700.

208 Ex parte Jordan, 94 U. S. 248; Gall v. Gall (W. Va.) 40 S. E. 380; Doyle's Petition, 14 R. I. 55.

209 Ex parte Cutting, 94 U. S. 14; Myers v. Fenn, 5 Wall. (U. S.) 205; Perry v. Godbe, 82 Fed. 141.

not made formal parties to the petition, are bound to take notice of such petition and the proceedings thereunder. 210 If any of the original parties desires to contest the right to intervene, he must do so on the hearing of the petition. After intervention, the new parties are treated as if they were originally parties to the suit.211 The intervenor will be entitled to appeal from any interlocutory proceeding when final decree is entered.212

$56. Objection for want of necessary parties.

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. If the defect is not apparent on the bill, it may be propounded by way of plea, or it may be relied on in a general

213

210 McLeod v. New Albany, 24 U. S. App. 601, 66 Fed. 378.

211 French v. Gapen, 105 U. S. 509; Foster, Fed. Pr. (3d Ed.) § 201; Williams v. Morgan, 111 U. S. 684; Rice v. Durham Water Co., 91 Fed. 433.

212 Rice v. Durham Water Co., 91 Fed. 433; Williams v. Morgan, 111 U. S. 698. For consideration of right to intervene, and procedure in so doing, see Beach, Mod. Eq. Pr. §§ 571-581; Foster, Fed. Pr. (3d Ed.) § 201; Continental Trust Co. v. Toledo, St. L. & K. C. R. Co., 86 Fed. 929. In West Virginia it is held that "when a party files his petition asking to be admitted as a party defendant in a pending suit in equity, in which no allegation is made naming or referring to him in any way, and no relief is prayed against him, and he is admitted to become such party defendant, he does not become a party in the cause until he has been made a party by some allegation in the bill as amended." This, however, does not apply in a case where a party files his petition, making the parties to the suit parties thereto, and setting up claim to the subject-matter in controversy, when his peti tion may properly be treated as an original bill. Cleavenger v. Felton, 46 W. Va. 249, 33 S. E. 117; Shinn v. Board of Education, 39 W. Va. 497, 20 S. E. 604; Sturm v. Fleming, 22 W. Va. 404; Skaggs v. Mann, 46 W. Va. 209, 33 S. E. 110; Gall v. Gall (W. Va.) 40 S. E. 380.

213 Cooper, Eq. Pl. 185; Story, Eq. Pl. § 236; Simms v. Richardson, 32 Ark. 297; Spear v. Campbell, 4 Scam. (Ill.) 424; Buda Foundry & Manufacturing Co. v. Columbian Celebration Co., 55 Ill. App. 381; Laughton v. Harden, 68 Me. 208; Farson v. City of Sioux City, 106 Fed. 278; Jessup v. Illinois Cent. R. Co., 36 Fed. 735.

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