#### Isaac Gilham and others, Appellants, v. Caldwell Cairns, Appellee.

In chancery, all the parties in interest and whose rights may be affected, ought to be made parties to the bill, and if the court is called upon to dispense with the proper parties, some reason therefor ought to be disclosed in the bill.

Opinion of the Court by

Justice Lockwood.

This was an appeal from the Monroe circuit court, sitting as a court of chancery, on a bill filed against the heirs of Gilham, deceased, for a specific performance of a contract executed by their ancestor to one Jacob A. Boyce, for the conveyance of a tract of land lying in Monroe county. The third error assigned is the want of proper parties to the suit, inasmuch as Boyce should have been a plaintiff or defendant, his interest being affected by the decree. The omission to make Boyce a party, is clearly erroneous. 2 Bibb’s Rep., 316, 184.. There is, no doubt, some discretion vested in a court of chancery, as to whom must be made parties, but where a court of chancery is called upon to dispense with the proper parties, some reason ought to be disclosed in the bill. In this case, for aught that appears, Boyce is alive, or if dead, has left heirs capable of protecting their rights. The court ought not to exercise a discretion in dispensing with parties who are interested, without sufficient cause being shown. For this cause, the decree must be reversed with costs. The court are also of opinion, that costs ought not to have been decreed against the defendants, admitting the decree to have been correctly made, as it does not appear that the defendants have ever refused to convey the premises, or that they have ever been requested to do it.

The court see no objection to the circuit court of Monroe county entertaining jurisdiction in this case, but on the contrary, they think there is a manifest propriety that the suit should be instituted there. They formed this opinion upon the effect given to decrees in chancery, by the 14th section of the act regulating the practice in chancery.*

The other errors assigned, do not appear to be of sufficient importance to require an examination by this court. The decree of the circuit court is reversed, with costs, and the *165case remanded with permission to amend the bill by constituting Boyce a party, (a), (1)

Starr, for appellants.

T. Reynolds, for appellee.

Decree reversed.

*

Laws of 1819, page 172.

(a)

The want of proper parties is not a sufficient ground for dismissing the bill. It ought to stand over to make new parties. 3 Cranch, 320.

The supreme court, in an equity cause, will not make a final decree upon the merits, unless all persons who are essentially interested are made parties to the suit, although some of those persons are not within the jurisdiction of the court. 7 Cranch, 69. 9 Wheat., 733. 10 Wheat., 152.

All persons materially interested in the subject, ought to be parties to the suit. Hickock v. Scribner, 3 Johns. Cas. in error, 311.

(1)

The general rule in equity requires all persons materially interested in the subject or object of the suit, however numerous, to be made parties, complainants or defendants, that all may be provided for and protected by the decree. Greenup v. Porter, 3 Scam., 65. Scott v. Moore, id., 315. Elstone v. Blanchard, 2 Scam., 420. Willis v Henderson, 4 Scam., 20. Spear v. Campbell, id., 426. Montgomery v. Brown, 2 Gilm., 581. Hoare v. Harris, 11 Ill., 24. Webster v. French, id., 254. Whitney v. Mayo, 15 Ill., 255.

Where the parties áre numerous, and it would be very inconvenient to make all persons interested parties, bills are allowed to be filed on behalf of the complainants and all others interested. Martin v. Dryden, 1 Gilm., 209. Whitney v. Mayo, 15 Ill., 255. County of Pike v. The State, 11 Ill., 202. 4 Scam., 20.

Courts will take notice of the omission of proper parties, though no demurrer be interposed for that purpose, where it is manifest that the decree will affect the interest of such as are not joined. Herrington v. Hubbard, 1 Scam., 573.

In Scott, adm’r, v. Bennett, 1 Gilm., 647, the objection of want of proper parties was first made in the supreme court, and was held to be in time.