sent, he may on motion, or petition, upon notice to all parties, have his name stricken out, with costs to be paid by the plaintiff who has improperly brought him into the suit. Such relief has been granted upon petition after a decree for costs against the petitioners and the other persons named as complainants. Where several complainants with a similarity but not a community of interest had joined in a bill, and the presence of some of them deprived the Federal Court of jurisdiction, the one which had the right to sue the defendants there was allowed to amend the bill so as to make the other complainants additional defendants. Where one of several complainants, whose interest is opposed to the others, undertakes to delay, harass, or impede the orderly progress of the cause, the court may order that he be made a defendant. If a person having no interest in the controversy be improperly joined as defendant, he alone can demur, unless the bill is multifarious;7 and no notice of his demurrer need be given to the other defendants, except in special cases where it is clearly for the latter's interest to retain him in the suit. If a misjoinder is apparent on the face of the bill it is more prudent to demur. If such an objection is not made till the hearing, the court may disregard it. It cannot be raised for the first time upon appeal. When a demurrer is sustained in favor of defendants improp 2 Calvert on Parties (2d ed.), 430; Keppell v. Bailey, 2 M. & K. 517; Titterton v. Osborne, 1 Dickens, 350; Wilson v. Wilson, 1 J. & W. 459. It was held that a motion to dismiss the bill upon that ground should be denied. Southern Life Ins. Co. v. Lanier, 5 Fla. 110. 6 (N. Y.) 106; Seymour v. Freer, 8 Wall. 202, 218; Buerk v. Imhaeuser, 8 Fed. R. 457; Mitzhener v. Robins (Miss.), 19 S. R. 103. 7 Cherry v. Meuro, 2 Barb. Ch. 610; infra, § 73. 8 Anon., 9 Ves. 512; Hodson v. Ball, 11 Simons, 459; Calvert on Parties 3 McGeorge v. Bigstone Gap Imp. (2d ed.), 430. Co., 86 Fed. R. 599. 4 Insurance Co. of N. A. v. Svendsen, 74 Fed. R. 346. See Aylwus v. Bray, 2 Y. & Jer. 518, note. 5 Lalance & G. Mfg. Co. v. Haber man Mfg. Co., 93 Fed. R. 197, 199. As to the change of a defendant to a plaintiff, see Guinn v. Lee, 6 Pa. Super. Ct. 646. 6 Whitbeck v. Edgar, 2 Barb. Ch. 9 Story v. Livingston, 13 Pet. 359; Eades v. Harris, 1 Y. & C. N. R. 235; Raffety v. King, 1 Keen. 601; Mosley v. Taylor, cited in 1 Keen. 601; s. c., 2 Y. & J. 520; Calvert on Parties (2d ed.), 156; Story's Eq. Pl., § 544. 10 Livingston v. Woodworth, 15 How. 546; Hayes v. Pratt, 147 U. S. 557, 570. erly joined as having no interest in the controversy, the plaintiff will always be allowed to amend by striking out their names." If the bill is dismissed for a misjoinder of complainants and one of them appears to have a good cause for equitable relief, the dismissal must be without prejudice.12 The subject of misjoinder is discussed in the next chapter under the head of "Multifariousness." 13 11 Tryon v. Westminster Improvement Comm❜rs, 6 Jurist (N. S.), 1324. 12 House v. Mullen, 22 Wall. 42. 13 Infra, §§ 71-75. CHAPTER IV. BILLS. § 63. Informations.-The first proceeding in a suit in equity is the preparation and filing of the first pleading. This was either an information, a bill, or an information and bill. In England the attorney-general or solicitor-general could file an information on behalf of the crown, or of those who either as idiots and lunatics partook of its prerogative, or whose rights, as those in charities, were under its particular protection. The law officers of the royal consort had the same right. If the suit did not immediately concern the rights of the crown, a relator, who sustained and directed the litigation, who it seems might prevent the discontinuance of the suit by the AttorneyGeneral without his consent, and who was responsible for the costs, was usually joined with the officer in whose name it was filed. The main distinction between an information and a bill was that, whereas the latter was in the form of a petition to the court, in the former the officer that filed it stated the case by way not of petition or complaint, but of information to the court of the rights which the crown claimed on behalf of itself or others, and of the invasion or detention of those rights for which the suit is instituted. If the relator had a personal interest in the relief sought, his personal complaint was joined to and incorporated with the information given to the court by the officer of the crown; and the pleading was termed an information and bill.' The proceedings upon an information could only abate by the death or determination of interest of the defendant. If, however, the information were filed at the instance of one or more relators and all died, the court would not allow the cause to proceed till an order had been obtained giving leave to insert the name of a new relator, and one had § 63. Mitford's Pl., ch. 1; Story's Eq. Pl., § 8; People v. North San Francisco Ass'n, 38 Cal. 564; Attorney-General v. Delaware & H. R. Co., 27 N. J. Eq. 1; s. c., 27 N. J. Eq. 631; Newark Aqueduct Board v. Parson, 45 N. J. Eq. 394. 3 been inserted accordingly. Otherwise, proceedings upon informations were substantially the same as upon bills, except that great laxity of practice was permitted when informations were filed on behalf of charities.2 In the courts of the United States it has been held to be the proper practice for the government to sue in equity in its own name by a bill similar to one filed by a private citizen; but a pleading styled an information filed on behalf of the United States, being in substance a bill, was sustained as such, and so was one filed on behalf of the United States in his own name by the district attorney for the northern district of New York. In the suit brought by the State of Florida against the State of Georgia to settle the boundary between them, the Attorney-General of the United States was permitted to file an information praying "that he be permitted to appear in said case, and be heard in behalf of the United States, in such time and form as the court shall order; and although permission for him to take testimony in the name of Florida with its consent was refused, it was "ordered that the Attorney-General have leave to adduce evidence, whether written or parol, and to examine witnesses and file their depositions in order to establish the boundary claimed by the United States." Informations have, however, been filed in equity in the courts of some of the individual States. These have been usually to abate public nuisances, but one case was allowed to protect a charity which had no person directly interested qualified to defend its rights. A State chancellor refused to entertain an information filed in the name of the State AttorneyGeneral on the relation of an alleged imbecile to set aside a conveyance; but he allowed the paper to be converted by 2 Mitford's Pl., ch. 1; Story's Eq. s. c. as Hughes v. U. S., 4 Wall. 232. Pl., § 8. See Benton v. Woolsey, 12 Pet. 27. 3 Benton v. Woolsey, 12 Pet. 27; U. S. v. Hughes, 11 How. 552, 568; S. C. as Hughes v. U. S., 4 Wall. 232; Miss. & Mo. R. Co. v. Ward, 2 Black, 485, 492; U. S. v. Union Pac. R. Co., 98 U. S. 569; Moffat v. U. S., 112 U. S. 24; U. S. v. Minor, 114 U. S. 233; U. S. v. Am. Bell Tel. Co., 128 U. S. 316; infra, § 76. 4U. S. v. Hughes, 11 How. 552, 568; amendment into a bill filed by the next friend of the alleged imbecile. A State sues in a court of the United States by a bill in equity in its own name.10 "When the United States comes into a court of equity as a suitor it is subject to the defenses peculiar to that court." Such an information or bill should be filed in the name of the United States, not in the name of one of its law officers.12 11 § 64. Definition and classification of bills. The usual course, and the only one open to a private citizen, is the filing of a bill. The word "bill" is derived from the Latin libellus; and such a pleading is sometimes called an English bill; because at the time when pleadings at common law were in Law Latin or Law French, it was as now written in the English language. A bill is a petition addressed to the judges of a court of equity, containing a statement of the facts which in the plaintiff's opinion give him a right to sue, and concluding with a prayer for the relief to which he deems himself entitled. Quis, quid, coram quo, quo jure petatur, et a quo, Recte compositus quisque libellus habet.2 Bills are divided by the books into three classes: original bills, bills not original, and bills in the nature of original bills. A fourth class, which may be termed original bills in the nature of bills not original, is recognized by the Federal courts. Original bills are those which relate to some matter not before litigated in the court at equity by the same parties standing in the same interests. Bills not original are those which relate to some matter already litigated in the court at equity by the same parties, or their representatives, and which are either an addition to or a continuance of an original bill, or both. Bills in the nature of original bills are those which serve to bring before the court the proceedings and decree in a former suit, for the purpose of either obtaining the benefit of the same or procuring the reversal of the decision made therein. Original bills in the nature of bills not original are those having all the Thompson v. Thompson, 6 Hous ton (Del.), 225. 10 Supra, § 14. 11 U. S. v. White, 17 Fed. R. 561, 565. 2 Com. Dig., Chancery, E. 2; Story's Eq. Pl., § 25. 3 Quoted with approval in AngloFlorida Phosphate Co. v. McKibben (C. C. A.), 65 Fed. R. 529, 530, 531. 4 Mitford's Pl, ch. 1, § 2; Story's Eq. Pl., § 16. |