Under a statute of Alabama every joint promissory note had the same effect in law as if it were joint and several. Whenever a writ issued against two or more joint and several drawers of a several promissory note, it was lawful, at any time after the return, to discontinue the action against any one or more of the defendants on whom the writ had not been executed and to proceed to judgment against the others.

A suit was brought in the United States Circuit Court for the District of Alabama on a joint promissory note against the two makers. One was summoned; the other was not found. The declaration was filed against the one who had been served with process and alleged him to be a citizen of Alabama, the plaintiff being described as a citizen of New York; nothing was said as to the citizenship of the other defendant. The Supreme Court held that, under the laws of Alabama, the plaintiff might proceed solely against the maker who was found, and his citizenship and that of the plaintiff were alone material.1

226. Section 50, Judicial Code.-Shortly before the case last cited was decided, Congress had legislated upon the subject. The Act in question now constitutes section 50 c the Judicial Code. It provides that when there are several defendants in any suit at law or in equity and one or mor of them are neither inhabitants of, nor found within, the district in which the suit is brought, and do not voluntarily appear, the Court may entertain jurisdiction and proceed to trial and adjudication between the parties who are properly before it. The non joinder of parties who are neither inhabitants of, nor found within, the district, does not constitute matter of abatement or objection to the suit. Of course, no judgment or decree will bind anyone who is not a party.

The Thirty-ninth Equity Rule of the Supreme Court is very similar. It provides that in all cases where it shall

Smith vs. Clapp, 15 Peters, 125.

appear to the Court that persons, who might otherwise be deemed necessary and proper parties to the suit, cannot be made parties by reason of their being out of the jurisdiction of the Court or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction; the Court may, in its discretion, proceed without them, and the decree shall be without prejudice to their rights.

227. Difference Between Necessary and Indispensable Parties.-It follows that, in the Federal Courts, many persons who under the old chancery practice would have been held to be necessary, are not considered indispensable parties. Whenever either at law or in equity the Federal Courts can do justice as between the parties before them, they will not refuse to proceed because other parties have not been brought in, provided those other parties could not have been joined without defeating jurisdiction.

A citizen of Illinois brought suit against co-partners who were doing business in Wisconsin. He alleged they were citizens of the latter. He caused their partnership' property to be attached. They all appeared. Two of them set up that they were citizens of Illinois. Under the State practice, he was entitled, at this stage of the proceedings, to discontinue against such of the defendants as were without the jurisdiction of the Court. He did discontinue as to the two citizens of Illinois. The Supreme Court thought he had the right so to do. The Federal Court had jurisdiction to hear and determine the controversy and to hold the property for the debt for which it was attached. Service on one partner when one partner is alone within the jurisdiction is sufficient to bind the partnership property. The judgment recovered in the case did not affect the property of the partners against whom the proceedings had been discontinued other than that of the partnership actually within the jurisdiction of the Court.1

1Imbush vs. Farwell, 1 Black, 566.

228. Parties Without Whose Presence Justice Cannot Be Done Are Indispensable.-Nevertheless, a Federal Court will not decide a controversy when it can make no decision going to the real root of the matter, without necessarily affecting the rights of parties not before it. The Supreme Court has said:

"We do not put the case upon the ground of jurisdiction, but upon a much broader ground which must equally apply to all Courts of Equity, whatever may be their structure as to jurisdiction. We put it on the ground that no Court can adjudicate directly upon a person's right without the party being either actually or constructively before it."1

229. Whose Citizenship Controls Where Suit in Name of One Person, But for Benefit of Another?— In some cases suits are, by statute or custom, required to be brought for one person in the name of another. In other cases, while the suit is brought by one person in his own name, it is another individual who will really gain or lose by the result of the litigation. In such cases it is necessary to know whose citizenship it is which determines whether the parties to the litigation are or are not citizens of different States.

230. Citizenship of Purely Nominal Parties Immaterial.-In Maryland, the bonds of trustees, administrators and executors, as well as of various officials, are given to the State of Maryland. They are for the protection and benefit of whomsoever may be interested in the proper discharge of the duties of the trustee, the administrator or the officer. The persons so interested may be citizens of Maryland, or they may be citizens of other States or of foreign counties. If the bond is breached and the injured parties are all citizens of States other than Maryland, or are aliens. has the Federal Court jurisdiction? The nominal plaintiff is the State of Maryland. It is not a citizen. If it were a citizen in any sense it would be citizen of the same State

with the defendants, assuming that the principal and the sureties on the bond were all Marylanders.

This question came before the Supreme Court a hundred years ago. In Virginia, executors then gave bonds to the justices of the peace of the county. A citizen of Virginia died, indebted to a British subject. Letters testamentary were granted to a citizen of Virginia, who, with another Virginian as his surety, gave bond to the justices of the peace for the county of Stafford. The executor wrongfully withheld the payment of the debt due the British subject. The latter began suit in the United States Court for the District of Virginia. His declaration was filed in the name of the justices of the peace of the county of Stafford to his use. The Supreme Court said the suit was properly brought. The Federal Court had jurisdiction.1

The ground of the decision was that the justices of the peace were nominal parties only; that the real contest was between the British subject and the citizen of Virginia, and of such a controversy the Federal Court had jurisdiction. For this reason, when an infant sues by his next friend it is the citizenship of the infant and not of the next friend which determines whether there is a diversity of citizenship between the plaintiff and the defendant. The next friend is in some sort an officer of the Court. He is appointed merely to look after the interests of the infant. The judgment is binding on the latter, who cannot, when he attains full age, maintain a fresh proceeding founded on the same cause of action.

231. Citizenship of Representative Parties Controlling.—A plaintiff who brings a suit may be a good deal more than a nominal party, although other persons may have a more direct personal interest in the outcome of the litigation. Such is the case with executors, administrators and trustees.

A Georgia citizen died. His administrator and his residuary legatee were French subjects. They brought suit

1 Browne vs. Strode, 5 Cranch, 303.

against a citizen of Georgia. It was held that the United States Court had jurisdiction. The plaintiffs were aliens. They sued as trustees, it is true, but they were something more than nominal parties. They had actual title in themselves, although the beneficial interest may have been in someone else.1

In another case a suit was brought in the Federal Court by the executor of the surviving partner of a firm. The declaration said that the executor was a citizen of Maryland. The defendants were alleged to be citizens of Tennessee. Nothing was said as to the citizenship of the persons who originally composed the firm or of those who were entitled to share in the estate of the surviving partner. The Court held that no such allegations were necessary. The citizenship of the executor was the only one material on his side of the case.2

A citizen of New York and a citizen of Pennsylvania brought suit in the Federal Court against a Pennsylvania corporation. They described themselves as trustees who sued solely for the use of an alien, a subject of Great Britain and of a citizen of New Jersey. The Supreme Court held that the Federal Courts were without jurisdiction. Distinguishing the case from such as Browne vs. Strode, it said:

"There is no analogy between these cases and the case at bar. The nominal plaintiffs in those cases were not trustees and held nothing for the use or benefit of the real parties in interest. They could not" *** "prevent the institution or prosecution of the actions or exercise any control over them."***"In the case at bar the plaintiffs are the real prosecutors of the suit. They are parties to the mortgage contract negotiating its terms and stipulations, and to them the usual rights and powers of mortgagees are reserved and to them the usual obligations of mortgagors are made."3

232. Citizenship at Time Suit Brought Controls.— At the time a contract is entered into or a tort committed.

1 Chappedelaine vs. Dechenaux, 4 Cranch, 308.

2 Childress vs. Emory, 8 Wheat. 668.

3 Coal Co. vs. Blatchford, 11 Wall. 174.