discretion, if it cannot make a decree which will finally and properly dispose of the subject-matter of the controversy in the absence of a party, remit the cause for the purpose of bringing him in.1 § 79. Objection for misjoinder of complainants.— It is a good ground of demurrer to the whole bill that a person who has no interest in the controversy, and has no equity as against the defendant, is improperly joined as a party complainant.2 But the objection should be taken by demurrer, or in the answer of the defendant, where the objection appears on the face of the bill. It comes too late at the hearing, or on a 145 Mass. 444, 447; Schwoerer v. Boylston Market Ass'n, 99 Mass. 285, 298; Miller v. McCan, 7 Paige, 451; Van Epps v. Van Deusen, 4 Paige, 64. Especially upon complainant's failure to amend. Mallow v. Hinde, 12 Wheat. 193, 199; and see Equity Rule 52 of the United States Supreme Court, in the appendix to this work. If, on the hearing, it appears by the record that all the necessary defendants have not been made parties, and if the bill were amended and they were made parties that the bill would necessarily be multifarious, it should be dismissed without prejudice. Shaffer v. Fetty, 30 West Va. 248; S. C., 4 S. E. Rep. 278. necessary parties are not before it is to reverse the decree and dismiss the bill or remit the cause to the court below to the end that proper parties may be added. New Jersey Franklinite Co. v. Ames, 12 N. J. Eq. 507. 509. 2 Clarkson v. De Peyster (1832), 3 Paige, 336; House v. Muller, 22 Wall. 42. All the defendants may demur. Cuff v. Platell, 4 Russ. 242; King of Spain v. Machado, 4 Russ. 225; Bill v. Cureton, 2 Myl. & K. 503, 512. "It is well settled to be a sufficient ground for dismissing a bill, that a person is joined as a co-complainant who has no interest in the matters of the suit, and no right to sue; and the objection may be taken by demurrer or raised by plea, as the case may be." Clason v. Lawrence, 3 Edw. Ch. 48, 53. 1 McLaughlin v. Van Keuren, 21 N. J. Eq. 379; Jewett v. Tucker, 139 Mass. 563; Lewis v. Darling, 16 How. 1. But he must be an indispensable party. Mechanics' Bank v. Seton, 1 Pet. 299; Berryman v. Graham, 21 N. J. Eq. 370; Gibbs v. Diekma, 102 U. S. 216; Carey v. Brown, 92 U. S. 171; Wetherbee v. Baker, 35 N. J. Eq. 501, 509; Livingston v. Woodworth, 15 How. 546; Morgan v. Blatchley, 33 West Va. 155; O'Fallon v. Clopton, 89 Mo. 284. New parties to a suit cannot be admitted in an appellate court having no original jurisdiction. The only course for the court to take if objection should be made by de 3 Talmadge v. Pell, 9 Paige, 410, 412; Story v. Livingston, 13 Pet. 360; Harder v. Harder, 2 Sandf. Ch. 17; Murray v. Blunt, 1 Barb. Ch. 59; Turner v. Hart, 71 Mich. 128; s. C., 38 N. W. Rep. 890; Green v. Richards, 23 N. J. Eq. 32; Lyman v. Place, 26 N. J. Eq. 30; Voorhees v. Melick, 25 N. J. Eq. 523; Elmer v. Loper, 25 N. J. Eq. 475, 480; Bowen v. Idley, 1 Edw. Ch. 148. As a general rule rehearing. The court will, however, dismiss a bill, on its own motion, for misjoinder of complainants when it appears that their separate interests are of such a nature that they are likely, in the future progress of the cause, to come into conflict, and thus transform the suit into a contest between the complainants.2 § 80. Objection for misjoinder of defendants. It is no ground of objection by one defendant that another defendant is not a proper party if the interests of the former are not thereby affected. It is only where the complainant has some murrer. Hinchman v. Paterson H. R. Co., 17 N. J. Eq. 76. If defendant answers, the objection is waived. Hendrickson v. Wallace, 31 N. J. Eq. 604. Complainant joined without consent may have his name stricken out with costs on motion upon notice. Keppell v. Bailey, 2 Myl. & K. 517; Titterton v. Osborne, 1 Dickens, 350; Wilson v. Wilson, 1 J. & W. 459. A motion to dismiss as to him is not correct. Southern Life Ins. Co. v. Lanier, 5 Fla. 110. Sometimes an amendment may be allowed making an improper complainant a defendant. Aylwin v. Bray, 2 Y. & Jer. 518, n. Act 15 and 16 Vict., chapter 86, section 49, provides for curing misjoinder by amendment, or modification of decree, etc., and that no suit shall be dismissed for that reason. An objection for want of an indispensable party plaintiff may be made for the first time at the hearing. Malin v. Malin, 2 Johns. Ch. 238, 239. Where the objection of want of necessary parties complainant is made at the hearing, the cause may be ordered to stand over until they are made parties. Dunn v. Seymour, 11 N. J. Eq. 220, where a trustee sued without joining his cestuis que trust. An objection that one holding an equitable title to a patent is not joined as complainant with the holder of the legal title was overruled at the hearing. California Electric Works v. Finck, 47 Fed. Rep. 583. 1 Fowler v. Reynal, 3 McN. & G. 500, 511; s. C., 15 Jur. 1019, 1021. 2 Hendrickson v. Wallace's Ex'rs, 31 N. J. Eq. 604. A dismissal should be without prejudice. House v. Mullen, 22 Wall. 42. A bill for foreclosure was filed by A. in his capacity as president of a national bank, and every pleading in the case, including the answer and cross-bill and the captions thereto, and every order and decree, recognized the bank as complainant. It was held that the defendant could not, on appeal, even to defeat the jurisdiction, assert that A., instead of the bank, was the complainant. Fortier v. New Orleans Nat. Bank (1884), 112 U. S. 438. Under the Connecticut Practice Act of 1879, all persons having an interest in the subject of the suit, and in obtaining the judgment, may be joined as plaintiffs; and new parties may be added and summoned in, and parties misjoined may be dropped by order of the court at any stage of the cause, as it may deem the interests of justice to require. Merwin v. Richardson, 52 Conn. 225. 3 Cherry v. Monro, 2 Barb. Ch. 618; Crosby v. Berger, 4 Edw. Ch. 210; ground of relief against each defendant, and where his claims for relief against them respectively are improperly joined in one suit, so as to make the bill multifarious, that each defendant has the right to demur upon the ground that the other defendant is improperly joined with him in the suit.' Whitbeck v. Edgar, 2 Barb. Ch. 106. The objection can only be taken by the parties improperly joined. Miller v. Jamison, 24 N. J. Eq. 41; Warthen v. Brantley, 5 Georgia 571; Christian v. Crocker, 25 Ark. 327; Gartland v. Nunn, 11 Ark. 720; Toulmin v. Hamilton, 7 Ala. 362; Western Compound Co. v. Ætna Ins. Co., 40 Wis. 373; Payne v. Berry, 3 Tenn. Ch. 154. Where the answer of one of several defendants objects to a bill for want of proper parties, and the controversy as to that defendant is settled before the final hearing, the objection will be disregarded. Booraem v. Wells, 19 N. J. Eq. 87. 1 Cherry v. Monro (1848), 2 Barb. Ch. 618. § 138. Bills for specific performance. | § 151. Bills of certiorari. 139. Bills to set aside fraudulent 152. Rules in the federal courts 153. How amendments are made. 156. Amendments after demurrer 157. Amendments after replication. 158. Amendments after master's report. 159. Amendments after publication. 160. Amendments at the hearing. 162. Amendments changing the 165. Miscellaneous matters relating § 81. Informations.- When a suit is instituted on behalf of the government, the matter of complaint is offered to the court by way of information, given by the attorney-general or solicitor-general. When the suit immediately concerns the rights of the government alone its officers proceed purely by information. When the suit immediately concerns the rights of the State, the information is generally exhibited without a relator.2 In other cases the name of a relator is inserted in the information, who is answerable to the court and to the parties for the propriety and conduct of the suit, and may be responsible for costs if the suit was improperly instituted. When the relator has an interest in the matter in dispute, his bill is incorporated with the information, and then they form together an information and bill and are so 2 Attorney-General v. Delaware &c. R. Co., 27 N. J. Eq. 1; s. c., affirmed on appeal, 27 N. J. Eq. 631. 1 Story's Equity Pleading (10th ed.), § 8. Where a nuisance is purely public, the proceeding to restrain it must be by information by the attorney-general. Newark Aqueduct § 8. Board v. Passaic, 45 N. J. Eq. 394. 3 Story's Equity Pleading (10th ed.), |