Bill in Chancery. 514. A bill to charge the executors of a deceased partner with a partnership debt, where the other partner survives, must expressly charge an insolvency of the survivor. Ibid. land, belonging to the defendant, as a compensa- | matter should, in general, be made a party to a tion for locating and conveying the same; and bill in equity. But no one need be made a the foundation of his claim rested, not on any party, against whom, if brought to a hearing, particular stipulation respecting the compensa- there can be no decree. Ibid. tion he was to receive, except that the general custom of the country, and the general tenor of the complainant's contracts with other persons for such services, were to furnish the rule of compensation: the bill was dismissed. Colson v. Thompson, 2 Wheat. 336; 4 Cond. Rep. 143. 505. Upon a bill filed by the United States, proceeding as ordinary creditors against the debtor of their debtors, for an account, &c., the original debtor to the United States ought to be made a party, and the account taken between him and his debtor. The United States v. Howland et al., 4 Wheat. 108; 4 Cond. Rep. 404. 506. Upon a bill of interpleader, filed by underwriters, against the different creditors of the insured, an insolvent debtor, who claims the funds; some on the ground of special liens, and others under an assignment of the policy, the rights of the respective parties will be determined. But in such a case, such of the co-defendants who fail to establish any interest in the fund, are not entitled to an account from those whose claims are allowed, of the amount and origin of such claims. Spring et al. v. S. C. Ins. Co. et al., 8 Wheat. 268; 5 Cond. Rep. 434. 507. In general, on a bill of interpleader, the plaintiffs will be allowed their costs out of the fund; but if the money has not been brought into court, they must pay interest upon it. Ibid. 508. Although bills of review are not strictly within any act of limitations prescribed by congress, yet a court of equity will adopt a rule by analogy, to the provisions of such statutes. Thomas v. Harvie's Heirs, 10 Wheat. 146; 6 Cond. Rep. 44. 509. There must be sufficient equity apparent on the face of the bill, to warrant the court in granting the relief prayed; and the material facts on which the plaintiff relies, must be so distinctly alleged as to put them in issue. Harding et al. v. Handy et al., 11 Wheat. 103; 6 Cond. Rep. 236. 510. Where a bill is filed to set aside an agreement or conveyance, the conveyance cannot be established without a cross bill being filed by the defendant. Carnochan v. Christie et al., 11 Wheat. 446; 6 Cond. Rep. 382. 511. On a bill filed by an executor against a devisee of lands, charged with the payment of debts, for an account of the trust fund, and the creditors are not necessarily parties to the suit, the fund may be brought into court, and distributed under its direction, according to the rights of those who may apply for it. Potter v. Gardner et al., 12 Wheat. 498; 6 Cond. Rep. 606. 512. In a bill in equity, to obtain satisfaction of a joint debt out of the estate of a deceased partner, on account of the insolvency of the survivor, which is charged and proved, no decree need be had against such survivor, it being vain and ineffectual, although he may be legally liable for the debt. Van Reimsdyk v. Kane et al., 1 Gallis. C. C. R. 371. 513. Every person interested in the subject 515. The mortgagees under a conveyance, made before the filing of a bill in equity, in relation to the premises mortgaged, should be made parties, as should also the mortgagor; but their omission is not necessarily a cause of abatement of the suit. Hoxie v. Carr, 1 Sumner's C. | C. R. 173. 516. An incorporated bank divided threefourths of its capital stock, before the expiration of its charter, among the stockholders, without providing funds which ultimately were sufficient to pay its outstanding bank notes; it was held: 1st. That the capital stock was a trust fund for the payment of the bank notes, and might be followed into the hands of the stockholders. 2d. That a bill in equity, for such purpose, might be maintained by some of the holders of the bank notes, against some of the stockholders; the impossibility of bringing all before the court, being sufficient to dispense with the ordinary rule of making all in interest, parties. 3d. That in such a case, the decree against the stockholders before the court, should be only for their contributory share of the debt, in the proportion which the stock held by them bore to the whole capital stock. 4th. That the holder of bank notes, payable to bearer, is not an assignee of a chose in action, within the eleventh section of the judiciary act of 1789, ch. 20, limiting the jurisdiction of the circuit court. Wood v. Dummer, 3 Mason's C. C. R. 308. 517. Massachusetts.-A bill in equity will lie for the recovery of dower. Powell et ux. v. The Monson and Brimfield Manufacturing Company, 3 Mason's C. C. R. 347. 518. A devisee cannot maintain a bill of revivor; but he may maintain an original bill in the nature of a bill of revivor, and thus obtain the benefit of the original proceedings, as well before as after there has been a decree in the original suit. Slack et al. v. Walcott et al., 3 Mason's C. C. R. 508. 519. The fact that by the lex loci, where land lies, the probate of a will is conclusive, does not enable a devisee to maintain a bill of revivor; for none can maintain it but a privy in representation, as an heir, or an executor. Ibid. 520. It seems that the exception, that a devisee cannot sue out a bill of revivor, may be taken by answer as well as by plea or demurrer. Ibid. 521. The circuit court of the United States having full power to issue commissions to take testimony abroad, when sitting as a court of common law, will not entertain any such proceedings, for such a purpose, on its equity side. Peters et al. v. Prevost et al., 1 Paine's C. C. R. 64. 522. Where an order for the dismissal of a bill was taken ex parte, the complainant having avowed his intention not to pursue the cause further; on a motion to vacate the order, on the Bill in Chancery. ground that the defendant died before it was 532. A bill in equity lies in the circuit court entered: Held, that it was not distinguishable, to set aside conveyances made in fraud of cre in principle, from the case of death, after argu- ditors, (the parties being citizens of different ment, but before judgment; and that the order states;) for there is not, in the proper sense of might be entered antecedent to the death. Gris- the terms, "a plain, adequate, and complete wold v. Hill, 1 Paine's C. C. R. 390. remedy" at law, within the meaning of the sixteenth section of the judiciary act of 1789, ch. 20, which is merely affirmative of the general doctrine of courts of equity. Ibid. 523. An objection to the equity of the bill, which might have been taken advantage of, on demurrer, is not favourably received at the hearing of a cause after answer. The United States v. Sturgis et al., 1 Paine's C. C. R. 525. 524. If the bill contain no ground for relief, the defendants should demur. Gallagher's Ex'rs. v. Roberts, 1 Wash. C. C. R. 320. 525. Where creditors are to be paid out of a particular fund, or are united in the same transaction, so as to produce a privity between them, all must be made parties to the bill, and the defendant is not obliged to litigate the question with each individual creditor. Joy et al. v. Wirtz, 1 Wash. C. C. R. 517. 526. Where all the creditors have joined in a release of the debtor, on an assignment of his property, under a state bankrupt law, the commission being superseded, all must be made parties to a bill to set aside the release. Ibid. 527. A party is not allowed to state one case in a bill or answer, and make out a different one by proof. The allegata and probata must agree. The latter must support the former. Boone v. Chiles, 10 Peters, 177. 528. A bill in equity, to set aside the report of referees, will not be sustained, where the grounds assigned are such as would have been open to the party at law, by filing exceptions to the report. Hurst v. Hurst, 2 Wash. C. C. R. 127. 529. Where the complainants in a bill of discovery, having obtained the object of the bill, and recovered at law in consequence of the same, they must pay the costs of the equity suit. Lessee of Bowne v. Brown, 2 Wash. C. C. R. 271. 530. The circuit court, notwithstanding the restrictive clause in the judiciary act of 1789, ch. 20, sec. 11, has jurisdiction in a suit in equity brought by a judgment creditor against his debtor and others, (they being citizens of different states,) to set aside conveyances made in fraud of creditors, although the ground of the judgment was a negotiable chose in action, on which, before judgment, a suit could not have been maintained in such court. Bean v. Smith, 2 Mason's C. C. R. 252. 531. Where, in Rhode Island, a judgment debtor had conveyed his real estate to defraud | his creditors, and had afterwards been committed to jail, and been discharged from imprisonment on taking the poor debtor's oath, under the laws of that state, which could only be obtained by a person having no property to support himself in jail, or to pay prison charges, it was held, that a bill in equity lay to set aside the fraudulent conveyance, and to charge the real estate with the judgment debt: notwithstanding that, by the laws of that state, while the debtor was alive and lived within the state, such real estate would not be directly liable to be taken in execution. Ibid. 533. Where A., being indebted to B. and C., partners, assigned to C. a mortgage in payment of the debt, and C. afterwards died, leaving B. surviving him: Held, that a bill in equity to ob tain payment of the original debt, on the ground of fraudulent representations by A., which induced the acceptance of the mortgage in satisfaction, was properly brought by B., the surviving partner, and that there was no necessity to make the representatives of C. parties to the bill, and that the bill was not defective, in containing no offer to reassign the mortgage; as, if necessary or proper, the court could make a direction to that effect, in the decree. Pagan et al. v. Sparks et al., 2 Wash. C. C. R. 325. 534. Under special circumstances, as if the defendant to an injunction bill be merely nominal, the court will, on the application of the party really interested, though not a party on the re cord, direct the answer of the nominal party to be taken under a commission, and notice that such application will be made is unnecessary. Wilkins v. Jordan, 2 Wash. C. C. R. 483. 535. Where leave is given to the complainant to amend his bill, it is necessary to state so much of the original bill as is necessary to introduce and make intelligible the new matter. The amendment should be made by a separate bill, and not by interlining the original on file. Pierce v. West's Ex'rs., 3 Wash. C. C. R. 354. 536. The effect of an amendment to a bill, is to call upon the original defendants to answer the new matter, and on the new parties, if any, to answer both. Ibid. 537. A complainant is bound by the admission of a fact set forth in his bill, unless, before the hearing, he obtain leave to amend. Prevost v. Gratz, 3 Wash. C. C. R. 434. 538. If, by the bill, it appears that one who should have been, is not made a party, it fur nishes no ground for dismissing the bill; and if, had he been made a party, the court could not have entertained jurisdiction of the cause, the bill must be amended before the defect of jurisdiction will avail. Harrison et al. v. Rowan et al., 3 Wash. C. C. R. 580. 539. The dismissal of a bill in chancery, is not conclusive against the complainant, who afterwards sues at law, though both suits may have been brought for the same matter, but it would be a bar to a new bill. Lessee of Wright v. De Klyne, Peters' C. C. R. 199. 540. The rule to be applied to a bill seeking a discovery from an interested party, is, that the complainant shall charge in his bill that the facts are known to the defendant, and ought to be disclosed by him, and that the complainant is unable to prove them by other testimony; and when the facts are desired to assist a court of Bill in Chancery. law in the progress of a cause, it should be af- [ing died, obtained a complete title to the land firmatively stated in the bill that they are wanted by patent, and the vendee did not die until for such purpose. Brown v. Swann, 8 Peters, 497. seven years after. After his death, in 1806, no 541. The general rule is, that after a verdict step was taken by his heirs or devisees, for the at law, a party comes too late with a bill of dis- purpose of asserting any claim to a performance covery. There must be a clear case of acci- of the contract for the sale of the land until dent, surprise or fraud, before equity will inter- 1819, and no suit was commenced until 1823. fere. Such now is the established doctrine in In the mean time, the property had materially England, and has been for a longer time the risen in value, from the general improvement doctrine in the United States. And the doctrine, and settlement of the country. By the supreme as applied to a case for relief from usury, is, that court:-The objection from the lapse of time, is a defendant sued at law on a contract alleged to decisive. Courts of equity are not in the habit be usurious, will not be entitled to a bill of dis- of entertaining bills for a specific performance, covery, if he suffers a verdict and judgment to after a considerable lapse of time, unless upon be taken against him, and especially when he very especial circumstances. Even where time does so without making a defence at law. The is not of the essence of the contract, they will reason of the rule is, that the proof of usury is not interfere, where there have been long delay a good defence at law; and when it is in the and laches on the part of the party seeking a knowledge of the defendant, no satisfactory rea- specific performance. And especially will they son can be given why the discovery was not not interfere, where there has, in the mean time, sought while the suit was pending. Ibid. been a great change of circumstances, and new interests have intervened. In the present case, the bill is brought after a lapse of twenty-nine years. Holt and Wife v. Rogers, 8 Peters, 420. 542. In the courts of the United States, an objection to the jurisdiction of the court, or the want of equity in a bill, has never been overruled for want of a demurrer or plea, but has been sustained wherever the defect appears by the bill, the answer, or the proofs in the cause. It may be made on a motion to dismiss the bill. Baker v. Biddle, 1 Baldwin's C. C. R. 394. 543. A bill was filed in the circuit court of Ohio, claiming a conveyance of certain real estate in Cincinnati from the defendants, and after a decree in favour of the complainants, and an appeal to the supreme court, the decree of the circuit court was reversed, because a certain Abraham Garrison, through whom one of the defendants claimed to have derived title, had not been made a party to the proceedings, and who was, at the time of the institution of the same, a citizen of the state of Illinois, although the fact of such citizenship did not then appear on the record. Afterwards, a supplemental bill was filed in the circuit court, and Abraham Garrison appeared and answered, and disclaimed all interest in the case; whereupon | the circuit court, with the consent of the complainants, dismissed the bill as to him. By the supreme court:-If the defendants have distinct interests, so that substantial justice can be done, by decreeing for or against one or more of them, over whom the court has jurisdiction, without affecting the interests of others, its jurisdiction may be exercised as to them. If, when the cause came on for hearing, Abraham Garrison had still been a defendant, a decree might then have been pronounced for or against the other defendants, and the bill have been dismissed as to him, if such decree could have been pronounced as to them, without affecting his interests. No principle of law is perceived, which opposes this course. The incapacity of the court to exercise jurisdiction over Abraham Garrison, could not affect their jurisdiction over other des fendants, whose interests were not connected with his, and from whom he was separated, by dismissing the bill as to him. Vattier v. Hinde, 7 Peters, 252. 544. In 1799, the heir of the vendor, he hav 545. Where a specific relief is asked for, even though there be a prayer for general relief, the circuit court cannot grant a relief which is inconsistent with, or entirely different from that which is prayed in the bill. Wilson v. Graham, 4 Wash. C. C. R. 53. 546. Where a bill in equity states a case to which the act of limitations applies, without bringing it within some of the savings of the statute, the defendant may take advantage of the bar by demurrer. Wisner et al. v. Barnet et al., 4 Wash. C. C. R. 631. 547. It has been decided in Kentucky, that a suit at law could not be maintained in that state by the endorsee, against a remote endorser. The conclusion, then, results from the decisions of the supreme court, that he must be let into equity; for an endorsement is certainly no release to the previous endorsers, and the ultimate assignee alone is entitled to the benefit of their liability. And this is understood to be consistent with the received opinions and practice in Kentucky. The Bank of the United States v. Weisiger, 2 Peters, 348. 548. In a bill filed in the circuit court of Alexandria county, in the District of Columbia, against the stockholders of an association for banking purposes, the bill was dismissed as to those stockholders who were named in the bill, but were not served with process, and it was held by the supreme court to be error. As non-residents, the act of congress of the 3d of May, 1803, allows proceedings to be had against them by publication in the newspapers in the District. Mandeville v. Riggs, 2 Peters, 489. 549. The courts of the United States have equity jurisdiction to rescind a contract on the ground of fraud, after one of the parties to it has been proceeded against on the law side of the court, and a judgment has been obtained against him for a part of the money stipulated to be paid by the contract. Boyce's Ex'rs. v. Grundy, 3 Peters, 210. 550. It is not enough that there is a remedy Bill in Chancery. at law; it must be plain and adequate, or, in | him at usurious interest. The money borrowed other words, as practical and as efficient to the ends of justice and its prompt administration, as the remedy in equity." Ibid. 551. After an arbitrement and award, an action was instituted at law upon the award, and the court being of opinion the award was void for informality, judgment was given for the defendant. A bill was then filed for the plaintiff, on the equity side of the circuit court for the county of Alexandria, to establish the settlement of complicated accounts between the parties, which was made by the arbitrators; and if that could not be done, for a settlement of them under the authority of a court of chancery. This is not a case proper for the jurisdiction of a court of chancery. Fowle et al. v. Lawrason, 5 Peters, 495. 552. A bill was filed in the circuit court of the United States for the eastern district of Pennsylvania, to recover the estate of the testator, bequeathed to "his heir at law." The court considered, on an examination of the bill and proceedings, that there was not a sufficient averment of the testator's actual domicil at the time of making the will, at the time of his death, or at any intermediate period, and remanded the case to the circuit court to have sufficient averments inserted. Harrison v. Nixon, 9 Peters, 483. 553. Every bill must contain in itself sufficient matter of fact, per se, to maintain the case of the plaintiff. The proofs must be according to the allegations of the parties: and if the proofs go to matters not within the allegations, the court cannot judicially act upon them as ground for decision, for the pleadings do not put them in contestation. Ibid. 554. The district court of the United States in Louisiana, has jurisdiction in all cases which are cognisable in courts of equity, as contradistinguished from courts of common law; and the modes of proceeding in that court must be according to the usages, principles, and rules which belong to courts of equity. Livingston v. Story, 9 Peters, 632. 555. If there are no equitable claims or rights cognisable in the courts of the state of Louisiana, nor any courts of equity, and no state laws regulating the practice in equity causes, the law of 1824 does not apply to a case of chancery jurisdiction, and the district court of Louisiana is bound to adopt the antecedent modes of proceeding authorized under the former acts of congress. Ibid. had not been repaid, and the bill sought no discovery of the usury from the defendant, but averred that the complainant would be able to prove it by competent testimony. The circuit court dismissed the bill. Held, that the decree of the circuit court was correct. Stanley v. Gadsby, 10 Peters, 521. 559. Sparks and Lloyd being indebted to Johnson and Smith, assigned a mortgage to them in payment, it being understood that the assignors were not answerable for the title of the mortgagor to the mortgaged premises. Smith died, leaving Johnson his surviving partner, who be came bankrupt, and the plaintiffs were his assignees. They filed a bill, stating that the mortgagor had no title to the mortgaged premises, and that he was a bankrupt, which was known to the assignors, and concealed at the time of the assignment. Upon a demurrer to a bill, every part of it must be taken as true. Pagan et al. v. Sparks et al., 2 Wash. C. C. R. 325. 560. The complainants are the proper persons to ask the relief sought for by the bill, which is to obtain payment of the original debt due by the defendants, notwithstanding the assignment of the mortgage. Ibid. 561. The representatives of a deceased partner need not be made parties to a bill filed by the surviving partner; as they have no claim until the partnership debts are paid; and then it is upon the surviving partner, or his representatives. Ibid. 562. It is no objection to the bill, that it does not contain an offer to re-assign the mortgage. The court will order this to be done in their decree, if they deem it necessary. Ibid. 563. A bill may be dismissed, where the plaintiff, when called upon to make proper parties, refuses, or is guilty of unreasonable delay, in doing so; but this must be done on demurrer, plea, or answer, pointing out the person or persons whom the defendant insists ought to be made parties. Greenleaf v. Queen, 1 Peters, 148. 564. Taking the amendment of the constitution, the law, and their construction, as the one law, it follows, that whenever a court of law is competent to take cognisance of a right, and has power to proceed to a final judgment, which affords a remedy, plain, adequate, and complete, without the aid of a court of equity, the plaintiff must proceed at law; because the defendant has a constitutional right of trial by jury. If the right is only an equitable one, or, if legal, the remedy is only equitable, or both legal and equitable, partaking of the character of both, and a court of law is unable to afford a remedy according to its old and settled proceedings, commen557. Congress has the power to establish cir-surate with the right, the suit for its assertion cuit and district courts in any and all the states of the Union, and to confer on them equitable jurisdiction in cases coming within the constitution. It falls within the express words of the 556. If any part of a bill in chancery is good, and entitles the complainant to relief or discovery, a demurrer to the whole bill cannot be sustained. Ibid. constitution. Ibid. 558. A. filed a bill in the circuit court, for an injunction to prevent the sale of property by a trustee, to whom it had been conveyed to secure the payment of a sum of money borrowed by may be in equity. This distinction is strongly illustrated in a case on the occupying claimant law of Ohio, (Bank of Hamilton v. Dudley, 2 Peters, 492,) directing compensation to be made for improvements on lands recovered by ejectment, to be ascertained by commissioners appointed by the court which tried the cause. The supreme court of the United States held the law valid so far as respected the right of compensa Bill in Chancery. tion, but unconstitutional as respected the mode of ascertainment: inasmuch as the circuit courts of the United States, in a suit at law, must submit every question of fact to a jury. Baker v. Biddle, 1 Baldwin's C. C. R. 399. 574. But if the rights of those not before the court are inseparably connected with the claims of the parties litigant, so that a final decree cannot be made in the cause without affecting the rights of the absent parties, the peculiar constitution of the circuit court furnishes no ground for dispensing with such parties. Mallow v. Hinde, 12 Wheat. 193; 6 Cond. Rep. 516. 565. The tests of the relative jurisdiction over suits at law and equity, are, 1. The subject-matter. 2. The relief. 3. Its application. 4. The competency of a court of law to afford it. Their application is not to be regulated by the decision of state or foreign courts, where their judicial system is organized on principles wholly inconsistent with a federal government of limited jurisdiction in all its departments. Ibid. 405. 566. Where the original bill contains no allegations against certain defendants, whose names have been inserted by way of amendment, although they may have answered, the bill must be dismissed as to them. Andrews et al. v. Solo-bill seeks a discovery of the necessary parties; mon et al., Peters' C. C. R. 356. 575. It is a general rule in equity, that all persons materially interested in the matter of the bill, as plaintiffs or defendants, ought to be made parties to it, however numerous they may be. There are, however, exceptions to this rule; as, where the other person not made a party, is without the jurisdiction of the court; or, if a personal representative be a necessary party, and the right of representation is in litigation in the proper ecclesiastical court; or the and in either case the facts are charged in the bill, the court will not insist upon the objection; but if it can, will proceed to make a decree between the parties before it. West v. Randall et al., 2 Mason, 181. 567. To a bill for a specific performance, the defendant, although he answers and admits the agreement, may nevertheless protect himself against a performance, by pleading the statute. Thompson v. Todd, Peters' C. C. R. 380. 576. So, where the parties are very nume568. Where the bill is also sworn to, one wit-rous, and the court perceives that it will be alness is sufficient; for that is not merely oath most impossible to bring them all before the against oath, but it is the oath of the complain-court; or where the question is of general inant, and one disinterested witness, against the oath of the defendant. Searey v. Parmell, 1 Cooke, 110. 569. Courts of equity require that all the parties concerned in interest shall be brought before them, that all the matters may be finally settled. This rule is, however, framed by the court itself, and is subject to its discretion; and being introduced for the purposes of justice, is susceptible, for those purposes, of modifications. Elmendorf v. Taylor, 10 Wheat. 156; 6 Cond. Rep. 47. 570. The rule is not universally applicable to cases in the courts of the United States. Those courts require the plaintiff to do all he can to bring every person concerned in interest before the court. But if the case may be decided as between the litigant parties, the circumstance that an interest exists in some other person whom the process of the court cannot reach; as if such party be a resident of some other state; ought not to prevent a decree upon its merits. Ibid. 571. The circumstance that some persons have been improperly joined as defendants in the bill, cannot affect the jurisdiction of the circuit court, in a bill in equity as to other parties who are properly before it. Carneal et al. v. Banks, 10 Wheat. 181; 6 Cond. Rep. 64. 572. In a suit in equity, brought by heirs at law to set aside a conveyance obtained from their ancestor by fraud and imposition, a final decree for the sale of the property cannot be pronounced until all the heirs are brought before the court as parties, if within the jurisdiction of the court. Harding et al. v. Handy et al., 11 Wheat. 103; 6 Cond. Rep. 236. 573. If some of the heirs, being beyond the jurisdiction of the court, cannot be brought before it as parties, the undivided interest of those who are made parties may be sold. Ibid. terest, and a few may sue for the benefit of the whole; or, where the parties form a part of a voluntary association for public or private purposes, and may be fairly supposed to represent the rights and interests of the whole in these and analogous cases, if the bill purports to be not merely in behalf of the plaintiffs, but of all others interested, the plea of the want of parties will be repelled, and the court will proceed to decide. Ibid. 577. Yet, in these cases, the court will permit the other parties to come in, under the decree, and to take the benefit of it, or to show it to be erroneous, and award a rehearing; or will entertain a bill or petition, which will bring the rights of such parties more distinctly before the court, if there be certainty or danger of injury or injustice. Ibid. 578. Among this class of cases, are suits brought by a part of a crew of a privateer against prize agents, for an account, and their proportion of prize-money. There, if the bill be in behalt of themselves only, it will not be sustained; but if it be in behalf of themselves and all the rest of the crew, it will be sustained by a court of equity. Ibid. 579. A want of parties is not necessarily fatal, even at the hearing, because the case may be ordered to stand over to make further parties; but this is not done of course; and rarely, unless when the cause, as to the new parties, may stand upon the bill and the answer of such parties. Ibid. 580. The incapacity imposed on the circuit courts, to proceed against any person residing within the United States, but not within the district for which this court may be holden, will justify them, in a bill in equity, in dispensing with parties merely formal. Perhaps, in cases where the real merits of the cause may be deter |