The principle of the Court, that the person having the legal right to sue for the same matter which he might enforce at law against the defendant, should be before the Court at the time of its pronouncing its decision, applies to all persons who have legal demands against the defendant arising out of the same matter: thus, as it has been decided that at law an assignee of a lease may be sued for non-performance of the covenants both by the lessor and the original lessee from whom he derives title, Courts of Equity will not permit either the lessor or lessee to institute proceedings against him in respect of his covenants, without having the other before them, in order that the rights of both may be settled at the same time. Upon this ground, where a man granted a lease of houses for thirty years to B., who covenanted to keep them in good repair, and died, having bequeathed the term to his wife; and afterwards, by mesne assignments, the term became vested in a pauper, but the houses becoming out of repair and the rent in arrear, a bill was brought by the lessor against the assignee for repairs, and an account of the arrears of rent; upon an #objection being taken, that the executors of the original lessee [ *298 ] were not parties, the Lord Chancellor said, that to make the proceedings unexceptionable, it would be very proper to have them before the Court; for that it did not appear to him but that the plaintiff might have had a satisfaction at law against the executors, and, if so, the plaintiff's equity will be their equity. (x) The same objection was allowed in the case of the City of London v. Richmond, (y) which was also the case of a bill against the assignee of a lease for payment of rent and performance of covenants. It is to be observed here, that the rule which requires all persons having similar rights to sue at law with that of the plaintiff to be brought before the Court, does not apply to a bill filed by the last indorsee of a bill of exchange which has been lost, against the acceptor; in which case it has been held that neither the drawer (z) nor the prior indorsees are necessary parties, (a) because in such eases, the ground of the application to a Court of Equity is the loss of the instrument; and the Court only relieves upon the terms of the plaintiff giving the defendant ample security against being called upon again by the drawer or indorsees, in case they should become possessed of the instrument. It has been held, however, that where a suit is instituted by an acceptor against the holder of a bill of exchange which is forthcoming, for the purpose of having it delivered up, there the drawer is a necessary party. (b) The principle that persons having co-existent rights with the plaintiff to sue the defendant must be brought before the Court in all cases where the subjectmatter of the right is to be litigated in equity, is not confined to cases where such co-existent rights to sue are at law; it applies equally to cases where another person has a right to sue, for the same matter, in equity; in such cases the defendant is equally entitled to insist that the person possessing such right should be brought before the Court before any decree is pro[*299 ] nounced, in order that such right may be bound by the decree. Thus, where a bill was filed by a vicar against a sequestrator for an account of the profits of a benefice, received during its vacation it appears to have been thought by the Court that the bishop ought to have been a party to the suit, because the sequestrator was accountable to him for what he had received ; (c) and, on the other hand, where a bill was filed by a bishop and a sequestrator against an occupier for an account of tithes during the lunacy of the incumbent, who (x) Sainstry v. Grammer, 2 Eq. Ca. Ab. 165; c. 6. (y) 2 Vern. 421. (z) Davies v. Dodd, 4 Price, 176. (b) Penfold v. Nunn, 5 Sim. 405. (a) Macartney v. Graham, 2 Sim. 285. (c) Jones v. Barrett, Bunb. 192. had been found a lunatic under a commission, it was held that the incumbent or his committee ought to have been a party. (d) It seems, however, that where a living is under sequestration for debt, the incumbent may maintain a suit for tithes without making the sequestrator or the bishop a party. This appears to have been the opinion of Lord Lyndhurst, L. C. B., in Warrington v. Sadler, (e) where a decree was made in a suit by a vicar for tithes, although the vicarage was under sequestration, and the occupiers had actually paid certain alleged moduses to the sequestrator. Upon the principle above stated, it is held, that, in general, where a suit is instituted on behalf of a lunatic either by the Attorney General or his committee, the lunatic himself must be a coplaintiff, because he may recover his senses, and would not be bound by the decree. In strictness, however, a lunatic ought not to be a party to a suit to be relieved against an act done by himself during his lunacy, because he cannot be heard to stultify himself. (f) The reason for making a lunatic a party, (g) namely, that he may recover his senses, does not apply to an idiot, who is considered in law as incapable of recovery. He is, therefore, not a necessary party to a suit instituted for his benefit. (h) [ *300 ] *one be instituted on his behalf, without the committee of his estate being a party either as plaintiff or defendant. (k) But neither an idiot nor a lunatic can institute a suit, nor can In the preceding cases the party required had a concurrent right with the plaintiff in the whole subject of the suit; the same rule, however, applies where he has only a concurrent right in a portion of it; thus, where there are two joint-tenants for life, and one of them exhibits a bill, the other must be a party, unless the bill shows that he is dead; (7) and where A., B. and C. were joint lessees under the City of London, and A. and B. brought a bill against the lessors to have certain allowances out of the rent, and it appeared upon the hearing that C. was living, an objection, because he was not a party to the bill, was allowed; (m) and so, where a bill is brought for a partition either by jointtenants, or tenants in common, as mutual conveyances are decreed, all persons necessary to make such conveyances must be parties to the suit; (n) and where one tenant in common had granted a lease of his share for a long term of years, the lessee was held to be a necessary party to the suit, at the expense, nevertheless, of his lessor, who was to be responsible for his costs. (0) Where, however, a tenant in common had demised his share for a long term of years, it was held that the termor for years was entitled to file a bill for a partition against the other tenants in common, without bringing the reversioner of the share demised before the Court; (p) and so it seems that where one of the parties is only tenant for life, he may maintain a suit for a partition without the party entitled in remainder. (q) Where the object of a suit is to ascertain boundaries, the rule is different, and the Court will not entertain a bill of that description without having the remainder-men and all parties interested before it.(r) (d) Bishop of London v. Nicholls, Bunb. 141. (e) 1 Young, 283. (f) Attorney Gen. v. Woolrich, 1 Ch. Ca. 153; Attorney Gen. v. Parkhurst, 1 Ch. Ca. 112: Ridler v. Ridler, 1 Eq. Ca. Ab. 279; Ante, 113. (g) Ante, 115. (k) Woolfryes v. Woolfryes, ante, 115. (p) Baring v. Nash, 1 Ves. & B. 555. (h) Ante, 115. Weston v. Keighley, Rep. temp. Finch, 82. Wms. 428; 1 Stra. 95, S. C. (0) Cornish v. Gest, 2 Cox, 27. (9) Wills v. Slade, 6 Ves. 498. eliam, Miller v. Warmington, 1 Jac. & W. *It is not, however, in general necessary, in questions relating to real property, that the occupying tenants under leases should be [ *301 ] parties, unless their concurrence is necessary, as in the case above referred to of the lessee of a tenant in common; or unless the object of the suit is to restrain an ejectment brought against them instead of against their landlord; as in the case of Lawley v. Walden, (8) in which Lord Eldon allowed a demurrer for want of parties to a bill by the owner of an estate, to restrain an injunction against his tenant without making him a party; observing, however, that if the plaintiff in equity had been made a defendant at law, instead of his tenant, as he might have been, he should not have thought it necessary to make him a defendant. But, although it is not usual, in suits relating to property, to make the occupying lessees of such property parties to the proceedings, yet if such lessees, or other persons having only limited interests in the property, seek to establish any right respecting such property, it is necessary that they should bring the owners of the inheritance before the Court, in order that, in case the suit is unsuccessful, the decree of the Court dismissing the bill may be binding upon them. Thus, to a bill by the lessees of property in a parish to establish a modus, the owner of the inheritance must be a party; and for the same reason, if there is a question concerning a right of common, though a leaseholder may enforce it at law, yet if he bring a bill in equity to establish such right, he must bring the persons in whom the fee of his estate is vested before the Court; (t) and so, in a suit in equity to establish a right to fees in an office, although in an action at law for such fees it is not necessary to make any person a party but the one who has actually received such fees, yet in equity it is necessary to have all persons before the Court who have any pretence to a right. (u) Upon the same principle, where a bill filed by a lessee against a lord of a manor, and the tenant of a particular house, to have the house, which obstructed the plaintiff's way, pulled down, and to be quieted in the possession [*302] of the way for the future, the defendant's counsel objected for want of parties, because the plaintiff's lessor was not before the Court, and the objection was allowed. (x) These cases all proceed upon the principle before laid down, namely, that of preventing a defendant from being harassed by a multiplicity of suits for the same thing; in consequence of which principle it is held to be a rule of a Court of Equity, that if you withdraw a question from a Court of Law for the purpose of insisting upon a general right, you must have all the parties before the Court who are necessary to make the determination complete, and to quiet the question. (y) The application of this rule, however, is strictly confined to cases where the lessee seeks to establish a general right; where he only seeks that which is incidental to his situation as tenant, he need not make his landlord a party. Thus a lessee of tithes may file a bill for tithes against an occupier, without making his lessor a party, because the claim to tithes abstracted, is merely possessory; and, upon the same principle, where an occupier who was sued for tithes by the lessee of an impropriate rector filed a cross bill against such rector for a discovery of documents, &c., a demurrer to such bill by the rector was allowed. (z) It should be noticed here, that in order to entitle a lessee to sue for tithes without his lessor, he must claim under a demise by deed, because tithes, being (8) 3 Swan. 142. (1) Poore v. Clark, 2 Atk. 515. (u) Pawlet v. Bishop of Lincoln, 2 Atk. 296. (z) Poore v. Clark, 2 Atk. 515. (y) Ibid. (z) Tooth v. The Dean and Chapter of Canterbury, 3 Sim. 61. things which lie in grant, cannot be demised by parol, and a decree in favour of a plaintiff claiming under a verbal demise, would therefore be no bar to another suit for the same tithes by the lessor. Upon this ground, in Henning v. Willis, (a) the Court of Exchequer allowed a demurrer to the plaintiff's bill because the impropriator, who was the lessor, was not a party, and the plaintiff having submitted to the demurrer, obtained leave to amend his bill by making the impropriator a party. (b) A similar demurrer was put in to a bill [ *303 ] for tithes by a lessee under a parol demise, in Jackson v. Ben son, (c) and allowed; leave being also given to amend, by making the impropriator a party; and in Williams v. Jones, (d) the principle to be deduced from the foregoing cases was recognized by Lord Lyndhurst, L. C B. In that case the vicar, who was the lessor, had been originally made a party to the suit, but as he had by his answer disclaimed all interest in the tithes in question, the plaintiff had dismissed the bill as against him, and brought the suit to a hearing against the occupier only; and Lord Lyndhurst held, that as the vicar had been originally a party, the circumstance of the bill having been dismissed as against him, made no difference, for although his disclaimer could not be read against the other defendants, no inconvenience could arise, because the lessor, after such disclaimer, would never be allowed to set up any claim against the occupier for the same tithes. The rule that persons claiming joint interests in an estate cannot sue without making their companions parties, applies equally whether the subject matter of the suit be real or personal property; thus, where a legacy is given to two jointly, one cannot sue for it alone; though where there are several legacies, each may sue for his own. (e) And so, where there are several persons interested, as joint-tenants, in money secured by mortgage, they must all be made parties to a bill to foreclose such mortgage. This was decided to be the law of the Court by Lord Thurlow, in the case of Lowe v. Morgan, (f) where a mortgagee had assigned the money secured by the mortgage to three persons as joint-tenants. In that case, his Lordship appears to have laid a stress upon the circumstance of the parties interested in the money being joint-tenants; from which it has been inferred that a tenant in severalty or in common might foreclose as to his share without making the other persons interested in the money parties; and a decree to this effect was actually made in a case where a trustee of money belonging to several individuals had laid it out on a mortgage, and afterwards one of the persons entitled to part of the purchase[ *304 ] money filed a bill against the mortgagor and the trustee for his share of the mortgage money or a foreclosure; which was entertained, although the parties interested in the rest of the money were not before the Court. (g) In a late case, however, before Sir John Leach, V. C., it was determined, that there can be no redemption or foreclosure unless all the parties interested in the mortgage money are before the Court; and, on this ground, a bill by a person entitled in severalty to one-sixth of the mortgage money, to foreclose one-sixth of the estate, was dismissed with costs. As a person entitled to a part only of the mortgage money cannot foreclose the mortgage without bringing the other parties interested in the mortgage (a) 3 Wood, 29; 3 Gwil. 898. The bill was amended, by making the lessor a defendant, and praying that the occupier might be decreed to account with the lessor, and that what should be found due in the account might be paid into Court for the benefit of the plaintiff. Vide Lord Lyndhurst's judgment in Williams v. Jones, Young, 255. (c) M'Lel. 62; 13 Pri. 131. (d) 1 Young, 252. (e) Haycock v. Haycock, 2 Ch. Ca. 124. (f) 1 Bro. C. C. 368. (g) Montgomerie v. The Marquis of Bath, 3 Ves. 560. money before the Court, so neither can a mortgagee redeem the mortgaged estate without making all those who have an equal right to redeem with himself parties to the suit. For this reason it was held, in Lord Cholmondeley v. Lord Clinton, (h) that where two estates are mortgaged to the same person for securing the same sum of money, and afterwards the equity of redemption of one estate becomes vested in a different party from the other, the owner of one cannot redeem his part separately. The mortgagee is entitled to insist that the whole of the mortgaged estate shall be redeemed together; and, for this purpose, that all the persons interested in the several estates or mortgages should be made parties to a bill seeking an account and redemption. The same rule prevailed in Palk v. Lord Clinton, (i) which differed from that of Lord Cholmondeley v. Lord Clinton, above cited, in the circumstance, only, of its being a bill by a second mortgagee of part of an estate to redeem a first mortgage, which embraced the whole property. Lord Orford had conveyed certain estates in the counties of Dorset, Devon and Cornwall, by way of mortgage, to Sir E. Hughes, who afterwards died, and the mortgage became vested in the executors of his wife, Lady Hughes. Upon the death of Lord Orford, the Dorsetshire *estates became the property of Mr. Wal[ *305 ] pole; and the Devon and Cornwall estates became vested in trustees for Lord Clinton, who mortgaged them to Sir R. Palk, the plaintiff. Upon the hearing of the cause, an objection was taken, because Mr. Walpole, in whom the Dorsetshire estate was vested, was not before the Court; and Sir William Grant, in giving judgment in favour of the objection, said, "The right to bring him (Mr. Walpole) into Court is the necessary consequence of the right to redeem the mortgage upon his estate. The plaintiff insists that he has a right to redeem the whole of Lady Hughes's mortgage, not only so far as it affects the estate of Lord Clinton, the plaintiff's mortgagor, but also as it affects the estate of Mr. Walpole; then he will have a right to call upon him to attend the account, and when it is taken, and the plaintiff has redeemed Lady Hughes's executors, to call upon Mr. Walpole to pay the amount or be foreclosed. It is now clearly settled that a subsequent mortgagee must redeem the entire mortgage of a prior mortgagee. There would be some ground for the objection if the plaintiff might redeem Lady Hughes's executors by parcels, so much as affects the estate of his mortgagor, Lord Clinton; but that is not competent to him, he must redeem them altogether or not at all. He must pay off the whole sum, and put himself completely in their stead. The same law that gives him the right to call upon Lady Hughes's executors to convey an estate with which he has no connection, imposes upon him the duty, as well as gives him the right, to call upon the owner of that estate to be a party." (k) In the above cases, the mortgage of the two estates was for the same sum of money, and was part of the same transaction. The rule, however, has been extended to cases where a mortgage has been of two distinct estates to the same mortgagee for securing different sums of money; and it has been decided in many cases, that a mortgagee of two separate estates, upon distinct transactions from the same mortgagor, is entitled to hold both mortgages till the amount due upon both be discharged; and that even against the purchaser of the equity of redemption of one of the mortgaged estates without [ *306 ] notice; so that the mortgages, although for distinct sums, are in effect for one Upon this principle, where the purchaser of the equity of redemption of a mortgaged estate filed his bill against the mortgagee, to redeem, and the |