Findlay . Hinde. 1 P.

then made should be considered as waived. Upon the face of the bill there is an apparent jurisdiction, and the use of the affidavit is only to show, prima facie, the truth of the matter.

It is not like the cases in which there is an apparent want of equity on the face of the bills, admitting all the facts stated to be true; nor like the case in which it is apparent on the face of the bill that a court of equity could have no jurisdiction of the matters charged. In such cases, although a demurrer will be to the bill, yet none is necessary, inasmuch as there is either an absolute want of equity or of jurisdiction.

We think the supposed former existence and loss of the deed from Garrison to the Jones's was not the only ground for appeal[*245 ] ing * to a court of equity for relief. If the deed, as stated in the bill, were produced, it, in consequence of not being proved, or acknowledged and recorded, would be insufficient as a legal title against subsequent purchasers without notice. The complainants had a right to a discovery, upon the ground of notice, against the defendants; and if notice should be brought home to them, the complainants had a right to relief by a decree quieting the title, &c.

Again: if the complainants should fail, as we think they have failed, to prove by competent and satisfactory evidence the former existence, execution, and contents of a formal deed of conveyance, sufficient to pass the legal title, we perceive no reason why they might not rely upon the executory contract contained in the receipt; and in this latter view of the case the jurisdiction of the court of equity is unquestionable; and a general demurrer to the whole bill for want of an affidavit would not be sustainable. At most, a demurrer to only so much of the bill as stated and relied on the deed, could have been maintained for want of an affidavit of its loss.

The second preliminary objection to the proceedings and decree is the want of proper parties.

It has been argued for the appellants that Abraham Garrison was a necessary party; and that, as the complainants claim through him by an executory contract, he ought to have been before the court before any decree could be made against the defendants, who also claim through and under him by a subsequent conveyance of the legal title.

The counsel for the appellees endeavored to overcome this objec tion, by arguing that the deed from Garrison to the Jones's conveyed the title from him to them; that the contract was, therefore, not executory, but executed between Garrison and the Jones's; and further, if it were not so, that there was no necessity for bringing Garrison

Findlay v. Hinde. 1 P.

before the court, he having conveyed away the legal title to the appellants, and that, therefore, no decree could be made against him.

We have already said the evidence in the cause does not establish a formally executed conveyance from Garrison to the Jones's, sufficient to convey the legal title; and that the complainants are, therefore, driven to rest their case upon the executory contract contained in the receipt.

Under this aspect of the case, was it necessary to make Garrison a party to enable the court to pronounce a decree between the parties really before the court?

In the case of Symmes v. Guthrie, 9 C. 25, this court declared the general rule to be, that "regularly, the claimants who have an equit able title ought to make those whose title they assert, as well as the person for whom they claim a conveyance, [* 246 ] parties to the suit." "And that, for omitting to do so, an original bill may be dismissed."

In the case of Mallon and others, v. Hinde, 12 W. 193, 196, the complainants claimed a survey in the military district in Ohio, by virtue of certain executory contracts with Elias 'Langham, and the heirs of Sarah Beard, and sought, by their bill against Hinde, to obtain a conveyance from him of the legal title, which, it was alleged, he had fraudulently obtained, with notice of the complainants' prior equity. Langham and the heirs of Sarah Beard were not made defendants, and for that cause the decree was reversed. There is no distinction in principle between that case and this. In that case this court, in delivering its opinion, holds the following language: "For the appellees it is insisted the proper parties are not before the court, so as to enable the court to decree upon the merits of conflicting claims. And we are all of that opinion." "The complainants can derive no claim in equity to the survey, under or through Langham's executory contract with the Beards, unless these contracts be such as ought to be decreed against them specifically by a court of equity." "How can a court of equity decide that these contracts ought to be specifically decreed, without hearing the parties to them? Such a proceeding would be contrary to the rules which govern courts of equity, and against the principles of natural justice."

This reasoning applies with equal force to the case at bar. Here, however perfect all the other links may be in the chain of the complainant, Belinda's, equitable title to the lot in contest, she can have no claim to it in equity, but through and under the executory contract of Garrison with the Jones's. Garrison has a right to contest the equitable obligation of that contract. No decree can be made for the complainants without first deciding that the contract of Garrison

Findlay v. Hinde. 1 P.

ought to be specifically decreed. He might insist the purchase. money had not been paid, or make various other defences. It is not true that, if he were made a party, no decree could be made against him. It might not be necessary to require him to do any act; but it would be indispensable to decide against him the validity of his obligation to convey, and overrule such defence as he might make; and if the purchase-money had not been paid, to provide by the decree for its payment, before any decree could be made against the defendants holding the legal title. We are all of opinion that upon this second preliminary objection, the decree of the circuit court must be reversed.

A question of some difficulty presents itself as to the extent of the reversal. The decree of the circuit court directs the defend[247] ants, Ritchie and Vattier, to convey certain portions of the lot of ground, and awards costs generally against all the defendants. There is no doubt the defendants, against whom there is only a decree for costs, could not appeal alone from the decree of costs. But the defendants below have all appealed together, and although some of them hold the legal title to the lot, yet they all have an interest in defending the title, standing as they do in the relation of vendors, and warrantees, and vendees. Under these circumstances we think the reversal should be general, as to all of the appellants, and the whole case opened. And we are the more inclined to adopt this course, because so numerous and so great have been the irregularities in conducting the cause in the court below, from its commencement to its termination, by decree, that it seems impracticable that justice be done between the parties without sending the cause back as to all the parties, with directions that the complainants have leave, if asked by them, to amend their bill, and make the proper parties; and to proceed de novo in the cause, from filing such amended bill.

This cause came on, &c., on consideration whereof it is the opinion of this court that there is error in the proceedings and decree of said circuit court, in this, that Abraham Garrison ought to have been made a party, but was not, before a decree was made between the parties in the cause. Whereupon it is adjudged, decreed, and ordered, that the decree of said circuit court for the district of Ohio, in this cause be and the same is hereby wholly reversed, annulled, and set aside. And it is further ordered, that the cause be remanded to the court from whence it came, with instructions to permit the complainants, upon application for that purpose, to amend their bill, and to make proper parties, and to proceed de novo in the cause, from the filing of such amended bill, as law and equity may require.

Old Grant v. M'Kee. 1 P.

OLD GRANT, on the Demise of Samuel Meredith, Plaintiff in Error, v. JOHN M'KEE, for the Use of the Bank of the Commonweath of Kentucky.

1 P. 248.

Where a recovery of a tract of land was had, in an action of ejectment, and a writ of restitution was awarded of a small portion thereof, of less value than $2,000, this court has not jurisdiction of a writ of error which brings up only the proceedings touching such restitution. WICKLIFFE moved to dismiss.

MARSHALL, C. J., delivered the opinion of the court.

This is a writ of error to a judgment of the court of the United States for the seventh circuit, and the district of Kentucky, awarding restitution of lot No. 108, in the town of Falmouth, to the defendants in error, who had been turned out of possession by virtue of a writ of habere facias possessionem, issued on a judgment in ejectment in favor of the plaintiff in error.

Previous to the institution of the suit, the town of Falmouth had been laid out in pursuance of an act of assembly, and lot No. 108 had been sold and conveyed to George Hendricks. The law establishing the town of Falmouth, directed that the lots should be sold, subject to the condition of making certain improvements thereon, within seven years; on failure to do which, the trustees are empowered to enter on any lot not improved, and sell it again. These improvements were not made on lot No. 108.

The defendant in error moves to quash the writ of error, because the matter in controversy is not of the value of $2,000. The motion is resisted, because the whole property which was recovered in the ejectment may be considered as involved in this motion; since each tenant may move separately for an award of restitution, on the supposition that the regularity of the proceedings, under the law by which the town was established and the lots sold, may be exam- [ * 249 ] ined. On this motion, the plaintiff in error has brought that subject into view, and has discussed it fully. But the court is of opinion that the question of title cannot be considered on this writ of error. The town of Falmouth was separated from the tract out of which it was taken, and this lot was sold before the suit was instituted; neither the trustees of the town nor the proprietors of the lot were parties to that ejectment. The motion to award restitution, therefore, involved nothing further than the lot to which the party prayed to be restored; and as that is not of the value of $2,000, the court has no jurisdiction. The writ of error is to be dismissed.

Writ of error dismissed for want of jurisdiction, it not appearing that the value of the premises in this suit is $2,000.

Konig v. Bayard. 1 P.

WILLIAM KONIG, who is an Alien, Plaintiff below, v. WILLIAM BAYARD, WILLIAM BAYARD, JR., ROBERT BAYARD, AND JACOB Le Roy, Citizens of the State of New York.

1 P. 250.

An acceptor, supra protest, for the honor of the indorser, may, on payment of the bill, recover of the indorser, though he accepted at the instance of the drawee, and as his agent, provided the indorser is not damnified by this indirect mode of proceeding on the part of the drawee.

THE case is stated in the opinion of the court.

Webster and Hoffman, for the plaintiffs.

D. B. Ogden and Oakley, contrà.

*

MARSHALL, C. J., delivered the opinion of the court. [* 261] This suit was brought in the court of the United States for the second circuit and district of New York, on a bill of exchange, drawn by John C. Delprat, of Baltimore, on Messrs. N. and J. and R. Van Staphorst, of Amsterdam, in favor of Le Roy, Bayard, and Co., of New York, and indorsed by them. The bill was regularly presented and protested, after which it was accepted and paid by the plaintiff, for the honor of the defendants. The jury found a verdict for the plaintiff, subject to the opinion of the court, on a case stated by the parties. The judges of the circuit court were divided in opinion on the following points:

1. Whether the letters offered in evidence by the defendants, and objected to, ought to have been admitted.

2. Whether the plaintiff had a right, under the circumstances, to accept and pay the bill in question, under protest, for the honor of the defendants, and is entitled to recover the amount, with charges and interest.

The first question is understood to be waived. It is a question which was decided by the court at the trial, and could not arise after verdict, unless a motion had been made for a new trial.

The second requires an examination of the case stated by counsel. The bill was transmitted by Le Roy, Bayard, and Co., to Messrs. Rougemont and Behrends, of London, to have it presented for acceptance, who inclosed it to the plaintiff in a letter, from which the following is an extract: "We beg you to have the inclosed accepted; 1st, of fl. 21,500, 60 days, on N. and J. and R. Van Staphorst, and hold the same to the disposal of 2d, 3d, and 4th. You will oblige me by mentioning the day of acceptance, and in case of refusal, you will have the bill protested."