Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-04-05

sfcannot be ascertained upon d1hgent in
ouiry.n Nor was the biz sworn to at the
time this plea was put in. Section 4, 1853
| of the Code declares that 'tTo dispense
with process In either of the cases, the
| facts shall be stated, under oath, in the
bill, or by separate affidavit, or appear by
| the return" The fact does not appear by
either of these modes. These acts come
in to enable a litgant to dispense with
service of process personally, on a de-
PENDANT, and have nothing to do with the
| question of pa,ties, as to who are, or are
not, necessary and proper parties. The
question of ''parties" to a bill, is alto
gether different question from the one
upon whom process may or may not be
| executed.
The plea filed in this cause does not,
nor could it, raise the question as to, upon
whom of the defendants, process could
| or could not be served, but relates exclu-
| sively to the question, whether certain
persons are made parties by the face of
the bill l have said that our statute
enables a complainant to make persons
parties to proceedings whose names and
residences are unknown, by fit and pro-
per description of the character in which
the defendant is sued, and by reference
to his title or interest in the subject mat
ter, and in addition to this, to have GER
tain character of publication made in
newspaper, and then such a defendant
is made party to the bill substantially,
so far as to defeat plea in abatement
coming from co-defendant, if not for all
TAf1rT for N rY1acf;Or, ha
brodght before the courts of this State.
If the bill should set out the character of
the defendant, and his interest in the
subject matter, and then declare that his
name and residence are unknown, and
cause publication as required to be made,
is such a person made party if the other
allegation of diligent inquiry is not made
to appear, or the bill is not sworn to or q
separate affidavit filed as required That
person may be said to be party to q
bill against whom legal process may be
had and none other. If the complainant
has not put himself or itself in a condi-
ton to have legal process against per-
son, then that person is no party to the
bill, in any sense. No effort to make a
person a party will avail, unless the bill
is good and effective. There is no mid
die ground here-neither the will nor the
effort can be taken for the deed. Has
complainant put itself in condition to
have process against these persons al
legged not to be made parties? 1t has
not complied with the statute, by omit
ting to make ''diligent inquiry" or filing
the proper affidavit and if the State be
compelled to do SO, as any ordinary liti-
CANT would be, then it has not put itself
in a condition to have legal process
against these parties, or to have them made
parties, by compulsion. But it is said the
State is not bound by the statute, that the
State is never intended to be concluded by
statute, unless it is specially mentioned,
or is necessarily by implication included,
and that the State is not expressly men
toned in the statute, nor is it necessarily
included by implication. Such is the true
doctrine on this point and for good rea-
sons, see
In reply to this l am referred to sec.
2,606 of the Code, as follows: ''The
State shall commence and prosecute suits
according to the laws of the land, as in
cases between individuals, except that no
security shall, in such cases, be required"
Here the State has prescribed terms to
herself, and has limited her right to COM
mence and prosecute suits according to
the law of the land, as in cases between
individuals"
have been referred to no repeal of
this statute, unless it be contained in the
act directing this suit, and this act pre-
scribes as the mode of making persons
defendants 'the same mode prescribed
by the rules of practice in Chsncery, es-
tablished in this State" therefore con-
clude this branch of the case, with this
conclusion, that these persons are not
made defendants to this bill.
1t is said, however, for the State, that it
devolves upon defendant filing the
plea, to show to the court that the alb
sent persons are necessary and proper
parties.
Certainly, if party alleges that an
other is q necessary party, he must be
able to point out the .propriety and the
necessity of having such person made q
party, not by an allegation to that effect,
but by showing such state of facts,
that the court may see and determine the
questionable must plead facts and not
allegations of conclusions of laws.
Who are necessary parties to this bill1
are any or all the absent persons such2 If
any ole o. more are, and are not made
defendant, then the plea is sufficient. Are
the stockholders necessary parties2 1t
was admitted in the argument that it was
not necessary to make each stakeholder
such, individually, and such is unques-
tionable the rule in all cases where the
parties are numerous. Otherwise by death
or marriage, and other causes, the case
could never be heard, and the record
could become too yoluminOus, and the
costs ruinOus. Therefore the courts have
dispensed with the necessity of max
ing each person of very numerous class
defendant; but it is allowable to make a
few persons of each class such, and allow
these to defend for the whole. 1t has
even been said that one person of class
might be sufficient. Applying this rule to
the stockholders, the bill makes Gustsvus
A. Henry and Montgomery county, par
ties, and alleges that they are stockhold-
era. These, conclude, make sufficient
representation of that class. The second
class are the holders of bonds issued by
the State. No individual alleged to be the
holder of any one of these is made 4
party. This class is without any repre-.
sentstion in this suit, and it is alleged on
The part of the State to be unnecessary to
make them such. This brings before the
court for its consideration and determin-
alton, the relation of these persons to the
roads, and is question involving in its
decision vast amounts of money.
Their rights, whatever they be, are de-
MED from the acts of the Legislature be-
fore referred to in this opinion, to wit of
1852, and subsequent thereto. These
bonds are the promises of the State to
pay - or bearer so much, the rail
road company to which it is issued is un-
known upon the face of the bond
and expressly promises nothing. The
paper is eminently commercial, and
can, and does pass tfrom band
In the transfer of such paper no liability
attaches to the party transferring (sup-
posing the bond to be genuine) unless
such party makes himself liable by con-
tract, either of endorsement or otherwise.
The mere fact that person has trans
ferred negotiable paper to another does
not Of itself create q liability soainat tho