Carson daily appeal. [volume] (Carson City, Nev.) 1873-1877, 1873-11-07

thereof will not do.
y In addition to the positive rules of thts
Court, there is, think the universal rule
of Courts OF Equity, against tie course
pursued by plaintiff III this case. ]
think it may safely be said that in no book
of acknowledged authority is there any
. thing said from which it may beinferred
that when proper parties are unknown
, they can be made parties by designating
them in the bill by a fictitious name.
speak, of course, of the chancery prac-
tice unchanged by statute. But the
books do show US how to proceed when
proper parties are unknown. The diff
Guilty is not overcome by making the un-
known ones parties under false name
but by dispensing with them altogether,
If the suit can proceed without them, or
by praying a discovery for the purpose
of bringing them before the Court. In
these cases the bill alleges the fact Of ig-
noranc0 of the names, not as i. ground
for making the unknown persons parties
by fictitious name, but as an excuse for
not making them parties at III, and that
AL objection Of want OF parties may not
prevail. (Sto,y's Ed. Pi. Sec. 81; Fem
Y. Craig , Iou. & Coil, 2lG: Bawyer V.
! Covert I Nern. So 50 important is it
.liat the defendants should be distinctly
! designated rs snch, tllat ii is held that
! these only are defendants who axe
nnmed lii the prayer for process not
witLstandiug they are named in the body
of the bill Windsor =. Windsor d!
Dick. 1G7. Fawkes v. Pratt l z. ".
j33. Story's Eq. pl. sec. a. The
subpoena, which issue; Of course upon
the filing OF the bill, is directed to the
defendants named in the prayer for pro-
cess. \ subpoena directed to ''one hun
bred and fifty persons without naming !
them, IS directed II nobody. IN one |
case cite,l by counsel fur the moving
parties, 1t appeared that an infant who +
had 10 narle was Il necessary party and /
upon application 70 the Vice Chancellor .
he ordered that the infant should be /
described i'll the subpnna TO appear and /
answer. as the youngest female child
of her father and mother. EIey V.
Broughton Sim. lsS}. This case may
be regarded as one of those exceptions
which were to prove the general rule,
that the defendants must be described
by nalne if they have a name.
And even when by statute the plaintiff
is allowed u Ignorant Of a defendant 5
name to designate him in pleadings by
any Eanie until his true Bame Il dlscoy-
cred, ii Is held that the Ignorance must
be real and not feigncd; il must no: he
wiifull ignorance ur such as might be
removed by mere inquiry or :. resort TO
means Of information easily accessible
/ Rosencraatz '. Rogers 10 Cal. 1872. In
this case the plaintiff: Is able - state
positively in its verified bin, the abode
and ,.I-'yeuSljD of the unknown .r,-,
AMI even the precise spoi ~ ground
upon which they were at worl, at the
time q hing the bill. Il Is shown Icy
affidavit, the truth Of which ha~ not
been Questioned, that these lersoLs are
well known in the town @, IlceAc, have
resided there lor months, and that their
names could i:aVe ottE discovered ~ IL
curry al the 'nlne, Of Themselves aid q
the superintendent OF the Raymond ami
by Company: also that some Il these
persons were IL fact well known to tav-
-lller the Super.Att nuent and IesicE, .
Jne OF the trustees Of the Plaintiff. One
u the persons served, OF whose name
he hill alleges ignorance Is N. Fuller,
lie District Judge OF the Seventh Judi
,!at District of this State
Ii Is apparent from these facts that
here WAS 10 legal excuse Tor emitting
he true names from this bill. even adj
hitting that in 4 proper case fictitious a
names may be used. But | prefer to {
,iace the decision upon the broader
round, that because these enc hundred :
nd fOTtv-seven persons are not named =
Il the Introductory part Of the bill. nor
Il the prayer for process: they are not
Ctles TO the sUIt; and for that reason