
    Jameson’s Adm’x v. Deshields.
    April Term, 1846,
    Richmond.
    i.Bonds — Forgery—Bona Fide Purchaser. — JB as the agent of B sells B's slave, and then, with J and another executes a bond to B for the purchase money, which bond JB holds as the agent of B. Whilst B holds the bond, the adm’r of Ssues out a foreign attachment against B as an absent debtor, and JB as a home defendant; and obtains a decree against B for the amount of his debt, and against JB for the amount of the bond to be applied to the discharge of the decree against B. Between the service of the attachment on JB and the decree, a forged assignment of the bond from B to G is endorsed upon it; and O, who is in fact the agent of JB, sells the bond to J) for *value, who takes it bona fide. J) then brings suit upon the bond in the name of B, but endorsed for his own benefit, against J, and recovers judgment thereon; whereupon J enjoins the judgment. Held :
    1. Same — Ownership of — Held by Agent — Attachment —Parties.—If the decree in favor of S’s administrator is not satisfied, he is, in equity, entitled to the bond ; and he is, therefore, a necessary party to the suit.
    2. Same — Same—Same—Same.—If 2? has discharged the decree in favor of B’s administrator, he is entitled to the bond.
    
      3. Same — Same—Assignee of Agent — Equities.—If JB has discharged that decree, then JO is entitled as assignee of JB; and J is entitled to set up his equity against JB as one of the obligors in the bond ; and any other equities he may have against JB.
    
    
      4. Same — Payment—Obligor—Forged Assignment.— A payment by J to JO, with a knowledge that the assignment from 2? to O' was forged, and of the equitable right of the administrator of S, though made under execution, would not protect J against the claim of the adm’r of B or of B.
    
    5. Same — Same—Same—Same—Equity Jurisdiction. —Equity has jurisdiction to protect.
    2. Appellate Practice — Bill In Equity — New Parties.— Where a plaintiff in equity has shewn no right to relief, and his bill is dismissed, an appellate Court will not reverse the decree, to enable him to introduce new parties, and thereby make a new case upon the merits.
    3. Same — Same — Same — Amendment— Cause Remanded. — Where the plaintiff has shewn a right to relief against parties before the Court, but has omitted to make other necessary parties, there the bill will not be dismissed ; but he will be permitted to amend his bill, and add the necessary parties. And in such a case, the appellate Court, if there be a defect of parties, will send the case back to the Court below.
    
      In December 1835, Daniel Emmons, as the agent of Thomas Barrage, of the State of Alabama, sold a slave of Barrage’s for 700 dollars; and in a few day after the sale, a bond was execated by Enoch Jameson, James S. Emmons, and the said Daniel, to Barrage, for 500 dollars of this money; which bond was held by Daniel Emmons, as agent of Barrage.
    In the spring, or early part of the summer of the year 1836, Slaughter’s administrator filed a bill in the nature of a foreign attachment, in the Superior Court of Stafford county, against Thonas Burrage and Stephen Hempstead, as absent debtors, and Daniel Emmons, as a home defendant, in which he charged, that Burrage, 'x'and Hempstead were indebted to Slaughter, in his lifetime, on three bonds, which he exhibited, and that Daniel Emmons held property or effects of Burrage, in his hands, which he asked to be subjected to the satisfaction of his claims. Process was served on Emmons; and at the November term of the Court the bill was regularly taken for confessed as to all the defendants, and a decree ivas made against Burrage and Hempstead for the sum of 754 dollars 18 cents, with interest thereon from the 6th of March 1835; and the defendant Emmons was directed to render before one of the commissioners of the Court, an account of the effects of Burrage and Hemp-stead, or either of them, which were then, •or had been in his hands since the institution of that suit.
    The commissioner subsequently reported that the defendant Emmons had appeared before him and admitted that he had sold a slave of Barrage’s for 700 dollars; that of this, he had lent 500 dollars to Enoch Jame-son, and had possession of Jameson’s bond at the time the suit was instituted, but had since then delivered it to an agent of Bur-rage ; and that after the allowance of certain credits which he claimed against Burrage, there was in his hands when the suit was instituted of Barrage’s effects 525 dollars.
    In June 1837, the case of Slaughter’s adrn’r v. Burrage & als., came on finally to be heard, when the Court decreed that the defendant Emmons should pay to the plaintiff, in part satisfaction of his decree against Burrage and Hempstead, so much of the sum of 525 dollars, with interest from the 17th December 1835 till paid, as should remain after deducting his costs expended in defending that suit.
    In the mean time, in the year 1836, the bond executed by Jameson, and Daniel and James S. Emmons to Burrage, came into the possession of Henry Cooke; and there was an endorsement on it, dated the 10th of *August 1836, purporting to be an assignment thereof by Thomas Burrage to Cooke. This endorsement was clearly proved to be a forgery, and to have been put upon the bond some time after it purports to have been made. In November 1836, Cooke, who was in fact acting for Daniel Emmons, assigned the bond to James Deshields for value; and Deshields brought a suit thereon in the Superior Court of Culpeper county, in the name of Barrage, but endorsed for his benefit, against Jameson, and obtained a judgment at the June term 1837; a few days after the decree against Daniel Emmons in the case depending in Stafford.
    Soon after the judgment was obtained by Deshields, Jameson obtained an injunction thereto. In his bill, he stated the foregoing facts; and he further insisted, that if Daniel Emmons had paid the amount decreed against him in favour of Slaughter’s adm’r, he was entitled to the bond executed to Burrage; and Deshields could only claim as assignee from him; and the plaintiff was therefore entitled to any setoffs against said bond in the hands of De-shields Which he might have set up against Daniel Emmons; and he then exhibited claims against Emmons to more than, the amount of the bond. Deshields and Daniel Emmons were the only parties defendants to this bill.
    Deshields answered, denying all knowledge of the facts stated in the bill; insisting that he had purchased the bond for value from Cooke, and had never heard and did not then believe, that the assignment of Burrage was a forgery; and he insisted, that in any aspect of the case, Jameson owed the money, and it was not for him to say that it was due to some one else. He objected further that Burrage, James S. Emmons, the other obligor in the bond, and Cooke the assignor, were not made parties.
    On the coming in of Deshield’s answer, the plaintiff amended his bill, and made Burrage and Cooke parties *to the suit. Burrage died soon after, and the suit was revived against William Major, the sheriff of Culpeper, to whom his estate was committed; and the bill was taken for confessed as to him. Cooke answered, denying the allegation as to the forged assignment from Burrage to him, or that he acted as the agent of Daniel Em-mons, in the sale of the bond.
    At the November term of the Court in 1838, the Court dissolved the injunction, and dismissed the bill; and from this decree, the plaintiff applied to this Court for an appeal, which was allowed.
    After the cause came into this Court, the appellant died, and it was revived in the name of his administratrix.
    William Green and Stanard, for the appellant, insisted:
    
      1st. If the right to the money secured by the bond to Burrage was in him, then a payment by Jameson of the amount of the judgment, to Deshields, or to the attorney on the record, who was the attorney of Deshields, or to the sheriff, or into the Court in which the judgment was rendered, though under the order of the Court itself to do so, would not exonerate him from the claim of Burrage’s administrator. Robson v. Eaton, IT. R. 62; Esp. N. P.3; 2 Starkl'Evi. 595, 1086; Cheap v. Harley, cited 3 T. R. 127; Aldrich v. Kinney, 4 Conn. R. 380. ,
    2d. If the right to the money secured by the bond was not in Burrage, it was only divested by the decree in the attachment case in Stafford; and then, it was either in Slaughter’s adm’r, or in Daniel Emmons. If in Slaughter’s adm’r, Deshields can have no right to it. And if Daniel Emmons has paid off the decree against him, in that case, so as to be entitled to the proceeds of the bond, he coulh not sue upon it at law, in his own name, because he was a joint obligor. Moffatt v. Van *Mul-lingen, 18 Eng. C. E. R. 410; Main-waring v. Newman, 2 Bos. & Pul. 120; Bosanquet v. Wray, 6 Taunt. R. 597; nor in the name of Burrage, because it was discharged. Bishop v. Church, 2 Ves. sen. 371; Woffington v. Sparks, Id. 569; Gammon v. Stone, 1 Ves. sen. 339; Blow v. Maynard, 2 Eeigh 29. His remedy could only have been by action of assumpsit, or bill in equity; in either of which, his recovery must have been limited to the proportion of the debt which the obligors Were to pay.
    But Deshields deriving his title from Daniel Emmons, took the bond subject to all the equities of the appellant against Em-mons, at the time of the assignment. Norton v. Rose, 2 Wash. 233; Pickett v. Morris, Id. 255.
    Patton for the appellee, insisted:
    1. That the appellant might have relieved himself from all responsibility, by paying the money into Court, or to the attorney who prosecuted the cause in the Common Eaw Court. That though the case of Robson v. Eaton seems to be opposed to this, that case was reviewed in-Denton v. Noyes, 6 John. R. 296, where the doctrine was fully discussed, and the authority of Robson v. Eaton was denied. But if there was any doubt about this, yet the appellant having come into equity, and made Burrage’s adm’r a party, who does not controvert the right of Deshields to the money, Jameson, surely, cannot object Burrage’s rights against De-shields, when Burrage’s representative is present in Court, and acquiesces in the decree in favour of Deshields.
    2. The decree in the attachment suit cannot affect the rights of these parties. That decree was against Burrage and Hempstead, as well as against Emmons. Non constat, that Burrage has not paid , the debt to Slaughter’s adm’r himself. He was as much bound by the decree to pay the debt as Daniel Emmons. There *is nothing to shew that Emmons paid it. Burrage does not admit it; nor does Em-mons claim it. The right of the appellant to set off his equities against Emmons, therefore, cannot arise.
    
      
      Appellate Practice — Parties—Objection In Lower Court. — In Baker v. Oil Tract Co., 7 W. Va. 458, it is said: “The appellate court will reverse a decree for want of proper parties, though the objection was not taken in the court below. Taylor v. Spindle, 2 Gratt. 44; Jameson v. Deshields, 3 Gratt. 4; Richardson v. Davis, 21 Gratt. 706.” The principal case is cited in this connection in Dower v. Church, 21 W. Va. 51. See foot-note to Taylor v. Spindle, 2 Gratt. 44.
      Same — Same—Same.—It was held in Thornton v. Gaar, 87 Va. 315, 12 S. E. Rep. 753, that in a suit to annul a bond and trust deed as fraudulent, it appearing the same had been assigned to the grantor’s wife, the court, before decreeing on the merits, should require her to be made a party, and the failure to do so is reversible error, though the point was not made below. “It is true no objection for want of proper parties was taken in the court below- But the rule is well settled that in such a case the objection may be taken by the court at the hearing, or even for the first time by the appellate court. Jameson v. Deshields, 3 Gratt. 4; Lynchburg Iron Co. v. Tayloe, 79 Va. 671; Welsh v. Solenberger, 85 Va. 441, 8 S. E. Rep. 91.”
    
    
      
      Bill in Equity — Right to Relief Shown — Omission of Parties — Amendment—Practice.—Where the plaintiff has shown a right to relief against the parties before the court, his bill ought not to be dismissed, because the proper relief cannot be extended to him, in consequence of his omission to make other necessary parties, but he should be permitted to amend his bill. And in such case the appellate court will reverse any decree entered in favor of the plaintiff, and will send the case back with directions that the plaintiff have leave to amend his bill. Mitchell v. Chancellor, 14 W. Va. 27; Rowland v. Rowland, 11 W. Va. 274; Hill v. Proctor, 10 W. Va. 78; Welton v. Hutton, 9 W. Va. 343; Rexroad v. Wells, 13 W. Va. 820. The above cases cite the principal case in support of this proposition. See also, monographic note on “Amended Bills” appended to Belton v. Apperson, 26 Gratt. 207.
      In Stewart v. Jackson, 8 W. Va. 31, the court, citing the principal case, held that a bill should not be dis-miásed merely for the want of proper parties, if it ■otherwise appears that the plaintiffs may he entitled to relief.
      On the other hand, it was held in Mitchell v. Chancellor, 11 W. Va. 27, citing- the principal case, that where a plaintiff in equity has shown no right to relief, an appellate court will not reverse a decree dismissing his hill, although all the parties directly interested in the subject-matter were not before the court. See also, extensive foot-note to Richardson v. Davis, 21 Gratt. 706, and the principal case cited in James River & Kanawha Co. v. Littlejohn, 18 Gratt. 82.
    
   BALDWIN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the decree of the Circuit Court of Stafford, in the proceedings mentioned, having directed the money of Burrage in the hands of Daniel Emmons to be paid by the latter to Slaughter’s adm’r, towards the discharge of the debt by a previous decree in the same suit recovered against Burrage and Hempstead, the said Slaughter’s adm’r thereby acquired an equitable right to the bond executed, as collateral security, to said Burrage by said Daniel Emmons, together with James S. Emmons and the appellant’s intestate, for the money in the hands of said Daniel Em-mons as aforesaid; which equitable right must prevail against the claim of the appel-lee Deshields under the forged assignment of said bond purporting to have been made by said Burrage to Cooke: and that the appellant’s intestate was properly in a Court of Equity, for the purpose of restraining the said Deshields from enforcing payment to himself of the judgment at law recovered by him for his own benefit, in the ' name of said Burrage, against the appellant’s intestate’and the other obligors in said bond; if the said decree in favour of Slaughter’s adm’r still remains unsatisfied; or, if the same has been paid by the said Daniel Em-mons, to have the equities amongst the parties, in the last mentioned aspect, adjudicated. The Court is therefore of opinion that the said Circuit Court of Culpeper erred in dissolving the appellant’s injunction and dismissing his bill, instead of directing said Slaughter’s adm’r to be made a party defendant, in order to a hearing and decision of the case according to the rights of the several parties. *Decree reversed and cause remanded to be further proceeded in according to the principles of the foregoing opinion and decree.

After the opinion of the Court in this case had been delivered, the appellee by his counsel moved for a rehearing of the cause.

BALDWIN, J. It is unquestioned and unquestionable that, by force of the decree of the Circuit Court of Stafford, Slaughter’s adm’r acquired an equitable right to the bond executed by Jameson, Daniel Emmons and James S. Emmons to Burrage. Upon the proofs in the cause, the claim to the bond set up by Deshields as assignee of Cooke, the pretended assignee of Burrage, is utterly without foundation ; it appearing that the assignment purporting to have been made by Burrage was without his authority, knowledge or consent, and a mere forgery perpetrated by. Daniel Emmons for his own benefit. It follows that Deshields had no right to prosecute the action at law upon the bond; and, if he had brought it in his own name, might have been defeated, by putting him upon the proof of the alleged assignment from Burrage. Of this lawful and just defence, Jameson was deprived by the mode of prosecuting the action, which was brought in the name of Burrage for the benefit of Deshields; and this kept out of view and precluded all enquiry into the genuineness of the assignment.

Under these circumstances, Jameson had a clear right to be relieved in a Court of Equity, against the effort of Deshields to coerce payment to himself by process of execution. The latter as assignee of Burrage had no just demand against him; and the payment of the money to Deshields would have been no protection to Jameson, against the right of Slaughter’s adm’r, or any person claiming under him. X need not enquire whether *if the judgment had been apparently for Burrage’s own benefit, and Jameson, without notice of the forgery, and of the right of Slaughter’s adm’r, had paid the execution to the sheriff or to the attorney on the record, he would have been protected by such payment. Here it appeared from the record that the action, though prosecuted in the name of Burrage, was for the benefit of Deshields, and that he claimed under the assignment of Burrage; and Jameson had actual notice of the forgery, and of the right of Slaughter’s adm’r. Under these circumstances, if he had paid, instead of resisting the payment of the execution, there is no principle or authority, that I am apprised of, which would have protected him against the assertion of the right of Slaughter’s adm’r, or of any one claiming under him, by assignment or substitution.

There is no proof, or even suggestion, in the record, that the decree of Slaughter’s adm’r, and consequently his equitable right to the bond in question, has ever been discharged. Nor if discharged, would that circumstance destroy Jameson’s title to relief in a Court of Equit3. If the decree has been paid, it must have been by the absent debtors Burrage and Hempstead, or one of them, against whom the foreign attachment of Slaughter’s adm’r was prosecuted; or by Daniel Emmons, the home defendant in that case, in whose hands the money for which the bond in question was executed, was attached. If paid by Burrage, the ob-ligee in the bond, his right to it, and to the judgment recovered thereupon, would have been completely restored, and Jameson could not have resisted a demand on his part for payment thereof.

Thus, whether the equitable right of Slaughter’s adm’r to the bond in question is still subsisting, or has been extinguished, the title of Jameson to relief against the judgment recovered by De-shields for his own benefit, in the name of Burrage, is to my mind perfectly *clear. In the former case, the relief ought to be for the whole amount of the judgment; in the latter case, it ought to be for the whole amount, if the decree has been discharged by Burrage, or if Daniel Emmons, then for so much as, upon an. adjustment of the equities amongst the ob-ligors themselves, shall be found to exceed the sum properly chargeable to Jameson.

But upon the hearing of the cause in the-Circuit Court, there was a serious obstacle-in the way of the proper relief to Jameson. He had failed to make Slaughter’s adm’r a. defendant to his bill. And the Chancellor,, instead of removing this obstacle, by directing Slaughter’s adm’r to be made a party, dismissed the plaintiff’s bill; thus denying him all relief, and giving full efficacy to Deshields’s demand under the forged assignment.

The reasoning and authorities of the appel-lee’s counsel are quite satisfactory to establish, that where a plaintiff in equity has shewn no right to relief, an appellate Court will not reverse a decree dismissing his bill, to enable him to introduce new parties, and thereby make a new case upon the merits. But it would be difficult to produce any reason or authority for the proposition, (which indeed the learned counsel has not ventured to assume,) that where the plaintiff has shewn a right to relief against the defendants before the Court, his bill ought to be dismissed, because . the proper relief cannot be extended to him, in consequence of his omission to make other necessary parties. The directly opposite rule is well settled. The effect of an objection successfully taken for want of parties is not that the bill is dismissed, but that it stands over with leave to amend by adding the necessary parties: and if a defect of parties is apparent upon the record, the Court will take the objection, though the defendant do not; and the Court of appeal, if there be a defect of parties, will send the case back to the Court below. Calvert on Parties 116;

17 L. Lib. ; 2 Rob. Pract. 276.

*If the appellee’s counsel had succeeded in demonstrating that Slaughter’s adm’r is not a necessary party, it would avail him nothing, without going further, and shewing that the appellant is entitled to no relief upon the merits; for if entitled to relief he ought to have it, whether Slaughter’s adm’r be a necessarj party or not. It is an entire misapprehension of the decree of this Court (now sought tobe reheard) to suppose that it reverses the decree of the Circuit Court, on the ground that Slaughter’s adm’r ought to have been a party. The ground of reversal is that the Chancellor erroneously dismissed the plaintiff’s bill, instead of giving him relief upon the merits, for which purpose it was proper that Slaughter’s adm’r should be brought before the Court, as was therefore directed.

But I cannot doubt that Slaughter’s adm’r is a necessary party within the terms, as well as the true spirit and meaning, of the rule of equity on that subject. The general rule was correctly stated by the ap-pellee’s counsel from Story’s Eq. Plead. § 72, thus: “All persons materially interested in the subject matter of a suit, either legally or beneficially, are to be made parties to it, either as plaintiffs or defendants, however numerous they may be, so that there may be a complete decree which shall bind them all:’' and from Calvert on Parties, p. 11, as that writer proposes to restrict it, thus: “All'petádns having an interest in the object of the suit ought to be made parties.”

Now, can it be doubted, upon the case presented by this record, that Slaughter’s adm’r appears to have an interest both in •the subject and the object of the spit? The subject of the suit is the debt secured by the bond and judgment in question: the object of it to prevent the appellee from coercing payment of it to himself from the appellant. As the equitable owner of the debt, Slaughter’s adm’r is interested in the subject: as the person entitled to receive payment of it, he is interested in the ^object of preventing it from being paid over to another. It is in vain to urge, that if he is not made a party, the decree of the Circuit Court (dissolving the injunction, and dismissing the plaintiff’s bill and thereby enabling Deshields to obtain the money) will not affect him, inasmuch as, he may still have his remedy against Jameson, and compel -him to pay it over again. If this be considered a sufficient reason against the application of the rule, then it is obvious that the rule itself is for the most part nugatory, inasmuch as few decrees are binding upon those who are not parties to the suit, or can have the effect of preventing them from prosecuting any remedy, or making any defence, which they had before.

That the spirit and policy of the rule are applicable to a case like this, is a proposition, it seems to me, free from all difficulty.. The reasons for the rule are thus stated by Judge Story as deduced from the authorities: “It is the constant aim of Courts of Equity to do complete justice, by deciding upon and settling the rights of all persons interested in the subject matter of the suit, so that the performance of the decree of the Court may be perfectly safe to those who are compelled to obey it, and also that future litigation may be prevented.” — -“By this means the Court is enabled to make a complete decree between the parties, to prevent future litigation by taking away the necessity of a multiplicity of suits, and to make it perfectly certain that no injustice is done, either to the parties' before it, or to others who are interested in the subject matter by a decree, which might otherwise be grounded upon a partial view only of the real merits. When all the parties are before the Court, the whole case may be seen: but it-may not, where all the conflicting interests' are not brought out upon the pleadings by the original parties. ” Story’s Eq. PI. § 72.

Now, the decree of the Chancellor in this case dissolving the plaintiff’s injunction and dismissing his bill, *is virtually a decree that he shall pay the money to JDeshields, who claims under the forged assignment. Jameson is thus, if the decree is to stand, exposed to the necessity of paying the money again; thus making ,it certain that injustice is done to him; and the person justly entitled is subjected to the necessity and hazard of future litigation. That the decree is founded upon a partial view only of the real merits is evident from the fact, that there is not a particle of proof, or even allegation, in the record, that Slaughter’s adm’r has obtained satisfaction ; and we have had an elaborate discussion upon the effect of the decree against Daniel Emmons on the rights of the present parties, without an intimation that he has ever paid the money, though without such payment neither he, nor those claiming under him, can have acquired a scintilla of title to the subject matter in controversy.

On the other hand, if the Chancellor, instead of dismissing the plaintiff’s bill, had directed Slaughter’s adm’r to be brought before the Court, the way to a complete and final adjustment of all conflicting interests would have been ipade perfectly plain and easy. Upon the coming in of his answer, it would have appeared whether he had been paid or not. If not, then there would have been, nothing to do but to decree payment to him by Jameson, and a perpetuation of the injunction against Deshields. Or, if it appeared that the decree had been satisfied by Daniel Emmons, then Deshields might have been treated as his assignee, and as sucfl entitled to satisfaction of the debt from the co-obligors, subject to their equities against Daniel Emmons, arising out of his liability to them for contribution, or for any other matters of equitable discount.

It is in vain that the appellee’s counsel urges a presumption of satisfaction to Slaughter’s adm’r. If an actual payment to him, as I have shewn, would. not repel the appellant’s right to relief, much less would the *mere presumption. But what room is there for such presumption? It is in no wise suggested in the appellee’s answer, and the supposed acquiescence of Slaughter’s adm’r indicates nothing to the purpose. The mere absence of activity on the part of an apparent owner of the subject is not a surrender of his title, and if it requires explanation, he ought to have an opportunity of giving it. The circumstance that Mr. Green, the adm’r of Slaughter, has argued the cause in this Court as counsel for the appellant, is at best but a shadow. He has treated the case professionally as he found it, with his accustomed zeal and ability, but he has not yet been heard as a party. When he comes to speak as Slaughter’s adm’r, he will doubtless do so decisively; but how can' any thing be inferred from his silence before he has had an opportunity of being heard?

In truth, the wisdom of the rule requiring' all persons interested in the subject and object of the suit'to be made parties cannot be better illustrated than by this very case. The counsel concerned for the present parties, skilful and learned as they are, have not been enabled to reach the full merits of the case; and their discussions have been for the most part merely formal and technical. They have lost sight of Slaughter’s adm’r, though it is only by substitution to him that either of their clients can have acquired any title to the subject matter in controversy. It is onlj' as the assignee of Daniel Emmons that Deshields can gain any foothold in the cause, and yet in his answer he has roundly denied all right on the part of his real, though not formal, assignor. Jameson, too, has failed to shew any title to the subject, though the facts of the case establish his right to protection. He has asserted in his bill the erroneous proposition, that by the decree of Slaughter’s adm’r against Daniel Emmons, the latter has acquired a right to the debt in question; and upon this, and the relation which he bears to him as co-obligor, he builds *an equitable claim of his own. It is a false foundation, unless Daniel Emmons has actually paid the money, which no one has yet pretended; but still Jameson has ample ground to stand upon, in the simple fact that it would be gross injustice to compel him to pay the money twice.

It is only by reasoning in a circle that Deshields can give any plausibility to his defence — first by contending it was Jame-son’s fault that Slaughter’s adm’r was not made a party — that consequently his case ought to be treated without any regard to the apparent right of Slaughter’s adm’r— and so, in that view, that there is no propriety in requiring the latter to be made a defendant, in order that he may receive satisfaction, and Jameson protection. This brings us back to the question, whether, admitting the fault to have been in Jame-son at first, he ought to be punished by a double exaction of the same debt, and the other parties in interest vexed by a renewed litigation; especially as he maj' have been surprised at the hearing, there having been no objection previously to the omission of Slaughter’s . adm’r as a party, though the want of other specified parties was deliberately objected by Deshields in his answer, and the defect accordingly supplied by’ an amended bill.

It is true, in the language of the authority quoted by the appellee’s counsel, the exceptions to the general rule as to parties, “will be found to be governed by the same principle, which is that, as the object of the general rule is to accomplish the purposes of justice between all the parties in interest, and it is a rule founded, in some sort, upon public convenience and policy, rather than upon positive principles of municipal or general jurisprudence; courts of equity will not suffer it to be so applied as to defeat the very purposes of justice, if they can dispose of the merits of the case before them, without prejudice to the rights or interest of other persons who are not parties, or if the circumstances of the case ^render the application of the rule wholly impracticable.” Story’s Eq. PI. i 77. But I am utterly at a loss to perceive within what exception to the general rule this can be brought; or how the purposes of justice can be sub-served, or the merits of the cause disposed of, or the rights and interests of third persons left unprejudiced, by dismissing the plaintiff’s bill; or that there is the slightest difficulty in the application of the rule to the present case.

After a careful re-examination of the case, I am perfectly well satisfied with the decree of this Court already rendered, and think the motion for a rehearing ought to be overruled.

CABEEE, P., and BROOKE and AEEEN, J., concurred in. Baldwin’s opinion.

STANARD, J., concurred in the results.

Motion overruled.  