"In Cameron vs. M'Roberts, where the citizenship of the other defendants than Cameron did not appear on the record, this court 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.' And the grounds of this distinction are explained in Mallow vs. Hinde, 12 Wh., 196-198.

"Such was the state of the laws on this subject when the Act of Congress of February 28th, 1839 (5 Stat. at L., 321), was passed and the 47th rule, for the equity practice of the Circuit Court of the United States, was made by this court.

"The first section of that statute enacts: That when, in any suit at law, or in equity, commenced in any court of the United States, there shall be several defendants, any one or more of whom shall not be inhabitants of, or found within the district where the suit is brought, or shall not voluntarily appear thereto, it shall be lawful for the court to entertain jurisdiction, and proceed to the trial and adjudication of such suit between the parties who may be properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process, or not voluntarily appearing to answer, and the non-joinder of parties who are so inhabitants, or found within the district, shall constitute no matter of abatement or other objection to said suit.'

"This Act relates solely to the non-joinder of persons who are not within the reach of the process of the court. It does not affect any case where persons, having an interest, are not joined because their citizenship is such that their joinder would defeat the jurisdiction; and so far as it touches suits in equity, we understand it to be no more than a legislative affirmance of the rule previously established by the case of Cameron vs. M'Roberts, 3 Wh., 591; Osborn vs. Bank of U. S., 9 Wh., 738, and Harding vs. Handy, 11 Wh., 132. For this court had already there decided that the nonjoinder of a party, who could not be served with process, would not defeat the jurisdiction. The Act says it shall be lawful for the court to entertain jurisdiction; but as is observed by this court in Mallow vs. Hinde,12 Wh., 198, when speaking of a case where indispensable parties were not before the court, 'we do not put this case upon the ground of jurisdiction, but upon a much broader ground, which must equally apply to all courts of equity, whatever may be their structure as to jurisdiction; we put it on the ground that no court can adjudicate directly upon a person's right, without the party being either actually or constructively before the court.'

"So that, while this Act removed any difficulty as to jurisdiction between competent parties, regularly served with process, it does not attempt to displace that principle of jurisprudence on which the court rested the case last mentioned. And the 47th rule is only a declaration, for the government of practitioners and courts, of the effect of this Act of Congress, and of the previous decisions of the court, on the subject of that rule. Hagan vs. Walker, 14 How., 36. It remains true, notwithstanding the Act of Congress and the 47th rule, that a circuit court can make no decree affecting the rights of an absent person, and can make no decree between the parties before it, which so far involves or depends upon the rights of an absent person, that complete and final justice cannot be done between the parties to the suit without affecting those rights. To use the language of this court in Elendorf vs. Taylor, 10 Wh., 167: 'If the case may be completely 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 another state - ought not to prevent a decree upon its merits.' But if the case cannot be thus completely decided, the court should make no decree.

"We have thought it proper to make these observations upon the effect of the Act of Congress and of the 47th rule of this court, because they seem to have been misunderstood and misapplied in this case; it being clear that the Circuit Court could make no decree, as between the parties originally before it, so as to do complete and final justice between them, without affecting the rights of absent persons, and that the original bill ought to have been dismissed."

The difference between necessary and proper parties was discussed in the recent case of Sioux City Terminal Railroad and Warehouse Co. vs. Trust Co. of North America,3 as follows:

3 49 U. S. App., 523; 82 Fed., 126.

"The general rule in chancery is that all those whose presence is necessary to a determination of the entire controversy must be, and all those who have no interest in the litigation between the immediate parties, but who have an interest in the subject-matter of the litigation which may be conveniently settled therein, may be made parties to it. The former are termed 'necessary' and the latter the 'proper' parties to the suit. The limitation of the jurisdiction of the federal courts by the citizenship of the parties and the inability of those courts to bring in parties beyond their jurisdiction by publication, have resulted in a modification of this rule, and a practical division of the possible parties to suits in equity in those courts into indispensable parties and proper parties. An indispensable party is one who has such an interest in the subject-matter of the controversy that a final decree between the parties before the court cannot be made without affecting his interests, or leaving the controversy in such a situation that its final determination may be inconsistent with equity and good conscience. Every other party who has any interest in the controversy or the subject-matter which is separable from the interest of the parties before the court, so that it will not be immediately affected by a decree which does complete justice between them, is a proper party. Every indispensable party must be brought into court, or the suit will be dismissed. The complainant may join every proper party, and he must join every proper party who would have been a necessary party under the old chancery rule, unless his joinder would oust the jurisdiction of the court as to the parties before it, or unless he is incapable of being made a party by reason of his absence from the jurisdiction of the court, or otherwise. If, however, such a party is incapable of being made a party, or if his joinder would oust the jurisdiction of the court as to the parties before it, the suit may proceed without him, and the decree will not affect his interests."

'The following persons are not necessary parties unless their presence is required for the protection of others who have been made defendants:

(a) Persons whose interest is very small.

(b) Persons whose interest has been created to deprive the court of jurisdiction.

(c) Persons who consent to the decree sought.

(d) Persons against whom the complainants waive their rights.

(e) Persons who are legally represented." "Persons who are interested in the controversy, but whose interest is such that the controversy can be satisfactorily determined as to those made parties without prejudicing the rights of those not made parties, are necessary parties if they can be reached, but otherwise the court will proceed without them." 4