Parker v. United States. 1 P. The allowance then the claim must be sanctioned by the Executive. It is not contended, in the case under consideration, that the grant was made by the President; but the plaintiff in error claims it under the orders which have been recited, and which are spread upon the record, and because officers of equal rank, and, in his opinion, similarly circumstanced, have received the additional allowance. Double rations form no part of the regular and legal emoluments of a brig adier-general, and can only be claimed under circumstances before enumerated. The plaintiff in error seems to rely with more confidence on the order of the 6th of March, 1816, taken in connection with the opinion of General Jessup. That order directs the additional allowance to be made to generals commanding divisions, and to officers commanding military departments, &c.; and General Jessup was of opinion that, according to the general usage of the army, the department of adjutant and inspector-general was a military department; and that, whilst exercising that office, he was commandant of a military department, and, as such, subject to the expense of an independent command. The record contains no evidence that the adjutant and inspectorgeneral was ever ordered to an independent or separate command. In the discharge of his ordinary duties, he has no distinct command; his duties consist in details of service, and not in active mil[298] itary command. The order of the 16th of March, 1816, directing double rations to be allowed to officers commanding military departments, is construed to relate to the geographical sections of country into which the two divisions of the army are divided, and which were denominated departments, and intended to designate the extent of actual command given to the officer commanding each department; and that it does not relate to the law of the 3d of March, 1813, for the better organization of the general staff of the army. This appears to have been the construction given to the order by the war department, as none of the staff officers created by that act, with the exception of the plaintiff in error, ever made a claim for double rations; and the claim under consideration was disallowed by the accounting officers of the war department. During the time the adjutant and inspector-general was stationed at the seat of government, comprehending the space for which double rations are claimed, it does not appear that there was any recognized commanding officer. The staff officers then stationed at the seat of government were subject to the authority of the secretary of war, and under his direct and exclusive control. It is the opinion of the court that the claim of the plaintiff in error Mechanics' Bank of Alexandria v. Seton. 1 P. is not sanctioned by the act of the 16th of March, 1802, nor by the regulations and orders of the executive department, issued in pursuance of that law. The judgment of the circuit court is affirmed, with costs. THE MECHANICS' BANK OF ALEXANDRIA, Appellants, v. LOUISA and ANNA MARIA SETON, Appellees, by their Guardian, &c. 1 P. 299. A court of equity has jurisdiction to compel a bank to open its transfer books and permit a transfer of its stock. An objection for want of parties ought not to prevail at the hearing, on appeal, except when the party is indispensably necessary. A trustee, in whose name bank stock stands, and who is willing to transfer it to his cestuis que trust, is not a necessary party to a bill against the bank to compel it to allow a transfer. The bank, under its charter, has no lien, for debts of a trustee, on stock held in trust, with the knowledge of the board of directors. Cross-examining a witness is a waiver of irregularity in the time of taking the deposition. THE case is stated in the opinion of the court. Swann and Wirt, (attorney-general,) for the appellants. Jones and Taylor, contrà. [ * 304 ] * THOMPSON, J., delivered the opinion of the court. The appellees, who were the complainants in the court. below, filed their bill against the Mechanics' Bank of Alexandria, setting out their right to $3,000 of the capital stock of that bank, which was standing in the name of Adam Lynn, but which was avowedly purchased and held by him as trustee for John Wise, the grandfather of the complainants, and from whom they derived their right and title to the stock in question; that they were desirous of having their stock transferred to their guardian, which the trustee, Adam Lynn, was willing to do, and offered to transfer the same; but that, on application to the bank, permission was refused, on the allegation that Adam Lynn was a debtor to the bank, and that it held a lien for that debt on all the stock of the bank which stood in his name. The bill alleges that when the stock was purchased by Adam Lynn for John Wise, and transferred to him upon the books of the bank, it was well known to the president and directors that the purchase was made by and transferred to Lynn in his character of trustee for John Wise, although the trust was not expressed in the transfer. The bill prays that the bank may be compelled to open its transfer book, and permit Adam Lynn to transfer the $3,000 in stock to the Mechanics' Bank of Alexandria v. Seton. 1 P. said Louisa and Anna Maria Seton, or to their guardian, Nathaniel S. Wise. The bank, by its answer, denies that the board of directors knew or had any notice that Adam Lynn held the stock as trustee, but alleges that all the stock standing upon the books of the bank in the name of Adam Lynn was considered by the board of directors as his own stock, and avers that, at the time the answer was put in, there was no stock standing in his name on the books, but that the whole of it had been applied by the bank to the payment of his debts to it, according to articles of agreement between him and the cashier of the bank. The bank also sets up the right, under its charter, to hold the stock for the payment of Lynn's debt, but had, under the agreement made with the cashier, as before mentioned, become the purchaser of the stock, for a full and fair consideration, without any knowledge that the complainants had any interest in the same. The court below, upon the bill, answer, and exhibits, and proofs taken in the cause, decreed that the bank should cause its transfer book to be opened, and to permit Adam Lynn to [305] transfer the stock to Nathaniel S. Wise, guardian of the complainants, to be by him held in trust for their use. From this decree there is an appeal to this court, and the following points have been made, upon which a reversal of that decree is claimed. 1. That the subject-matter of the bill is not properly cognizable in a court of chancery; but that the remedy is at law, and the party to be compensated in damages. 2. That there is a want of proper parties. 3. That upon the merits, the bank has a right to hold and apply the stock, in payment of Adam Lynn's debt to it. With respect to the first objection, it has been said that a court of chancery will not decree a specific performance of contracts; except for the purchase of lands or things that relate to the realty, and are of a permanent nature; and, that where the contracts are for chattels, and compensation can be made in damages, the parties must be left to their remedy at law. But notwithstanding this distinction be tween personal contracts for goods, and contracts for lands, is to be found laid down in the books, as a general rule, yet there are many cases to be found, where specific performance of contracts relating to personalty have been enforced in chancery; and courts will only weigh with greater nicety contracts of this description, than such as relate to lands. But the application of this distinction to the present case, is not Mechanics' Bank of Alexandria v. Seton. 1 P. perceived. If this had been a bill, filed against the bank, to compel a specific performance of any contract entered into with it, for the sale of stock, it might then be urged that compensation for a breach of the contract might be made in damages; and that the remedy was properly to be sought in a court of law. But the bill does not set up any contract between the complainants and the bank; nor does it seek a specific performance of any express contract whatever entered into with the bank. It only asks that the bank may be compelled to open its transfer book, and permit Adam Lynn to transfer the stock. By the charter and by-laws of the bank such transfer could only be made upon the books of the bank; and it was by their consent alone that this could be done. Although it might be the duty of the bank to permit such transfer, it would be difficult to sustain an action at law for refusing to open its books and permit the transfer. Nor have the appellants shown such a claim to the stock as to authorize the court to turn the appellees round to their remedy at law, against Lynn, admitting they might have it. At all events, the remedy at law is not clear and perfect; and it is not a case for compensation in damages, but for specific performance; which can only be enforced in a court of chancery. 2. The second objection, that Adam Lynn ought to [*306] have been made a defendant, would seem to grow out of a misapprehension of the object of this bill, and the specific relief sought by it. It ought to be observed here, preliminarily, as matter of practice, that although an objection for want of proper parties may be taken at the hearing, yet the objection ought not to prevail upon the final hearing on appeal, except in very strong cases, and when the court perceives that a necessary and indispensable party is wanting. The objection should be taken at an earlier stage in the proceedings, by which great delay and expense would be avoided. The general rule, as to parties, undoubtedly is, that when a bill is brought for relief, all persons materially interested in the subject of the suit ought to be made parties, either as plaintiffs or defendants, in order to prevent a multiplicity of suits, and that there may be a complete and final decree between all parties interested. But this is a rule established for the convenient administration of justice, and is subject to many exceptions; and is, more or less, a matter of discretion in the court; and ought to be restricted to parties, whose interest is involved in the issue, and to be affected by the decree. The relief granted will always be so modified as not to affect the interest of others; 2 Mad. Ch. 180; 1 Johns. Ch. 350. Mechanics' Bank of Alexandria v. Seton. 1 P. Where was the necessity or even propriety of making Lynn a party? No relief is sought against him. The bill expressly alleges that he was perfectly willing to make the transfer; but permission was refused by the bank. There is no allegation in the bill upon which a decree could be made against Lynn; and it is a well-settled rule, that no one need be made a party, against whom, if brought to a hearing, the plaintiff can have no decree. 2 Mad. Ch. 184; 3 P. Will. 310, n. 1. The contest with respect to the right to the stock, is between the complainants and the bank; and it cannot be necessary to bring Lynn into the suit, in order to determine that question. He claims no right to the stock; and if the bank has established its right to hold it, for the payment of Lynn's debt, the complainants have no pretence for requiring the books of the bank to be opened, and to permit the transfer to be made, as prayed in the bill. The bank cannot compel the complainants to bring Lynn before the court, as a defendant, for the purpose of litigating questions between themselves with which the complainants have no concern. No objection to the decree can, therefore, be made for want of proper parties. The remaining inquiry is, whether the bank is entitled to hold this stock as security, or apply it in payment of Lynn's debt, [307] either by virtue of its charter or under the agreement be tween him and the cashier. An objection, however, has been made preliminarily to this court's noticing the deposition of Adam Lynn; because, as is alleged, it was taken after the cause was set down for hearing, and without any order of the court for that purpose. Admitting this to have been irregular, no objection appears to have been made in the court below to the reading of the deposition; and had it been made it ought not to have prevailed even there, because the defendants cross-examined the witness, which would be considered a waiver of the irregularity. But at all events the objection cannot be listened to here, according to the express rule of this court, (February term, 1824,) which declares, "that, in all cases of equity and admiralty jurisdiction, no objection shall be allowed to be taken to the admissibility of any deposition, deed, grant, or other exhibit found in the record as evidence, unless objection was taken thereto in the court below, and entered of record; but the same shall otherwise be deemed to have been admitted by consent." It is deemed unnecessary to enter into an examination of the proofs in the cause to show that, in point of fact, the stock in question was held by Lynn in trust for the complainants; and that this fact was |