unnecessary to state the relief which is desired, but it would be mischievous to do so, as it could only serve to deceive the other side. Neither is it correct to say that the plea, by not denying possession of the merchandise, admits it. In the first place, that fact is not charged in the libel, nor is it proved by the decree, for the reasons before mentioned. And even if it were charged, still it must have been upon the conclusive effect of the decree, from which the respondent could, in no other way, have extricated himself but by showing that the court which pronounced it had not jurisdiction in the case. I will not say that the respondent in the district court might not have stated all the matter of the plea in an answer, and also have denied the fact of possession. But then the latter part of his defense would have been merely gratuitous, and not being responsive to the libel in that respect, it could not have availed him. It is, after all, to be remarked that the respondent is never bound to reserve to the final hearing any matter which amounts to a bar to the relief prayed, but may by a plea demand the judgment of the court upon such matter, so as to save the expense of a general examination. The decree of the district court must be affirmed, with costs. CHAPTER III. OF THE PARTIES. Rule 48. Where the parties on either side are very numerous, and cannot, without manifest inconvenience and oppressive delays in the suit, be all brought before it, the court in its discretion may dispense with making all of them parties, and may proceed in the suit, having sufficient parties before it to represent all the adverse interest of the plaintiffs and the defendants in the suit properly before it. But, in such cases, the decree shall be without prejudice to the rights and claims of all the absent parties. Rule 49. In all suits concerning real estate which is vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons beneficially interested in the estate, or the proceeds, or the rents and profits, in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate; and in such cases it shall not be necessary to make the persons beneficially interested in such real estates, or rents and profits, parties to the suit; but the court may, upon consideration of the matter on the hearing, if it shall so think fit, order such persons to be made parties. Rule 50. In suits to execute the trusts of a will, it shall not be necessary to make the heir at law a party; but the plaintiffs shall be at liberty to make the heir at law a party where he desires to have the will established against him. Rule 51. In all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court as parties to a suit concerning such demand all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable. Rule 54. Where no account, payment, conveyance, or other direct relief is sought against a party to a suit, not being an infant, the party, upon service of the subpoena upon him, need not appear and answer the bill, unless the plaintiff specially requires him so to do by the prayer of his bill; but he may appear and answer at his option; and if he does not appear and answer he shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer he shall be entitled to the costs of all the proceedings against him unless the court shall otherwise direct. Rule 87. Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof, for infants or other persons who are under guardianship, or otherwise incapable to sue for themselves. All infants and other persons so incapable may sue by their guardians, if any, or by their prochein ami; subject, however, to such orders as the court may direct for the protection of infants and other persons. TOBIN v. WALKINSHAW. (Circuit Court for California: 1 McAllister, 26-47. 1855.) Opinion by MCALLISTER, J. STATEMENT OF FACTS.-Among the numerous questions which have been submitted during the argument of this a Bill terd & ar W Eu mine, alleges titte to mines in reef, that dept hair decking wy property by cutting timber Cavating minerale, that plif. has brought Ejectment rs. deft". It pays an /e of timber cut & minerd taken, (2) injunction 1o. further tirofacs, (*) a neeiver, (4) that the cin. veyances under which dept! claim to cancelled, and By gent nlief TOBIN V. WALKINSHAW. Quuver $79 appeare slims not made depts are haut onner that to peesms ช motion there is one which arrests attention in limine, and, in 4t are out the view I have taken of the case, will preclude a decision on any other. That question is one of jurisdiction. In advance of any discussion on this point I desire to advert to a question which was argued incidentally by the solicitors for the respective parties. I allude to the question, "How far is matter of avoidance in an answer to be treated as evidence by the me kind by court?" An examination of the authorities has conducted me to the conclusion that the rule is that upon the hearing, after For dift. d the answer is put in issue, new matter set up by way of motion de- for an injunction In regard to the want of parties in this case, which gives n matter rise to the question of jurisdiction, it has been urged by in adcomplainants that it is too late for defendants to object a cuce ul. want of parties, and that this was matter only for a plea in ged in abatement. Now, a plea for want of parties is not matter for abatement. is admis It is a plea in bar and goes to the whole bill, as well to thee widiscovery as to the relief prayed. 1 Daniell's Ch. Pr., 337. dence the Again, the rule is that if want of parties is apparent on the face of the bill, the defect may be taken advantage of by de- not at murrer. If such defect be vital, it may be insisted on at the the hearing, and if the court proceed to a decree, such decree may, the be reversed. If the defect is not apparent on the bill, it may defect of be propounded by way of a plea, or it may be relied on in a general answer. Story's Eq. PI., § 236. In Van Epps v. Van Deusen, 4 Paige's Ch., 75, it is said defendant is not bound to demur or plead. He may make the objection in his answer, and may have the same benefit of the objection at the hearing as if it had been taken by plea a or demurrer. the other The thirty-ninth rule of equity expressly gives the right to later, defendant to avail in his answer of anything which would r was defect of parties. The sitief panged would clearly affect the rights not joined. They were indispen. * not merely necessary harties. such parties Car. not on left out Even tho' by peculiar U.S. Juuisdiction they cannot be gotten because outside juis if joined they would must court's quin die can plis compel Ct to proceed to hearing Main questiong be good in the form of a plea in bar; and the fifty-second rule provides that where defendant by his answer suggests the want of parties, plaintiff shall be at liberty, within fourteen days after answer filed, to set down the cause for argument upon that objection alone. These rules evidently authorize a party to avail himself of a defect for want of parties as effectually in his answer as by plea in bar. Had defendants availed themselves of the right to plead in bar much time and discussion would have been saved. But they have the right to bring forward their objection in the form of an answer. Having done so, I am called on to decide if there are such parties before the court as will authorize it to adjudicate upon this cause, whether this court be deemed a court of general equity jurisprudence or whether the peculiar structure of the limited jurisdiction of this court under the constitution and laws of the United States be considered. In Cameron v. McRoberts, 3 Wheat., 591, where the citizenship of the other defendants than Cameron did not appear on the record, the supreme court of the United States certified : If a joint interest vested in Cameron and the other defendants, the court had no jurisdiction over the cause. If a distinct interest vested in Cameron, so that substantial justice (so far as he was interested) could be done without affecting the other defendants, the jurisdiction of the court might be exercised as to him alone." In Mallow v. Hinde, 12 Wheat., 194, the principle is affirmed that, though the rules as to parties in equity are somewhat flexible, yet, where the court can make no decree between the parties before it upon their own rights which are independent of the rights of those not before it, it will not act. The court say: We do not put it "on the ground of jurisdiction, but upon a much broader ground, which must equally apply to all courts of equity, whatever be their structure as to jurisdiction." In Russell v. Clarke's Executors, 7 Cranch, 98, the court say that merely formal parties might be dispensed with; but where parties are essential to the merits of the question, and may be much affected by the decree, such parties are indispensable. The principle enunciated by the supreme court in the foregoing cases is a reiteration of one universally recognized in equity jurisprudence. Story's Eq. Pl., § 137. The rule in equity differs from the rule of law, both in the necessity of joining all interested parties in the suit and in the |