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decree, and is in general satisfied if they are thus brought before the court either as plaintiffs or as defendants. In other words, the rules of equity seldom declare that a given person or class of persons must be plaintiffs, but simply declare that such person or class must be made parties, if not as plaintiffs, then as defendants. The result is that the positive rules as announced by courts and as gathered from a comparison of decisions, are much more full and explicit in reference to defendants than they are in reference to plaintiffs. In actual practice, all persons having an interest in the subject-matter, and therefore either necessary or proper parties, except the actual plaintiff who institutes and prosecutes the suit, are generally made defendants, even though their interests may be concurrent with those of this plaintiff. Still, different individuals holding different rights may be united as plaintiffs in equitable actions; such a joinder is often provided for by well-settled doctrines, and, although their requirement is not peremptory, these doctrines must be discussed and fully stated. The persons that can be made co-plaintiffs in an equity suit may be roughly separated into two general classes: (1) Those whose rights, claims, and interests, as against the defendant, are joint, not necessarily joint in the strict, technical sense of the common law, but in a broader and popular sense, that is, those whose interests, claims, and rights, whether legal or equitable, are concurrent, arising out of the same events, having the same general nature, and entitled to the same sort of relief. All such persons must be brought before the court as parties, and naturally they should be plaintiffs, and so the rules primarily require; but the requirement is by no means peremptory, and in many and in even the great majority of instances, the equity principle is satisfied if all but the one who actually sets the cause in motion are placed among the defendants. (2) In the second class are found all those persons who are collaterally interested in the subject-matter of the controversy; whose interests and claims, although antagonistic to the defendant, and to that extent, therefore, in harmony with those of the real plaintiff, are still several and distinct in their nature, arising from different

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fendants; but in equity the arrangement of parties is of little importance, and can be regulated by the court at any time, in its discretion."]

facts and circumstances, and demanding perhaps a different relief. Although the individuals or the class which have been thus vaguely described may be joined as co-plaintiffs with the one who is the chief actor in the suit, and although the rules speak of such a joinder as possible, yet in actual practice they are almost invariably placed among the defendants. With this preliminary explanation, which modifies the entire doctrine of equity in relation to plaintiffs, I shall proceed to state the general principles which underlie the whole equitable system of parties, and to illustrate the working of these principles in the more important species and varieties of actions by which equitable remedies are conferred.

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163. 249. Statement of Fundamental Principle and what it Special Subject of Inquiry Stated. The fundamental principle may be stated as follows: The plaintiff who institutes an equitable action must bring before the court all those persons who have such relations to the subject-matter of the controversy that, in order to prevent further litigation by them, they must be included in and bound by the present decree; in other words, all those persons who are so related to the controversy and its subject-matter, that, unless thus concluded by the decree, they might set up some future claim, and commence some future litigation growing out of or connected with the same subjectmatter, against the defendant who is prosecuted in the present suit, and from whom the relief therein is actually obtained. The principle as thus expressed assumes, what is always true in practice, that in every equitable action there is some person, or group of persons, like a firm or joint tenants, who primarily institutes the proceeding, and demands the relief for his own benefit; and him, or them, we may designate "the plaintiff;" and there is also some person or group of persons against whom all the real demands are made, and from whom the substantial remedy sought by the action is asked, and him we denominate "the defendant.' In addition to these two contestants, there are the other individuals described in the foregoing proposition, who must also be brought before the court and made parties to the controversy either as co-plaintiffs or as co-defendants. Equity is satisfied in most instances by making them co-defendants, and they are generally so treated in actual practice, unless their interests are so identical with those of the plaintiff that they must participate

in the substantial relief awarded by the decree. The special subject of our present inquiry may therefore be stated thus: In what cases and under what circumstances are such persons primarily and naturally to be associated as co-plaintiffs rather than as co-defendants? The answer to this question embodies the principle in its most general form which equity courts have applied in all species of actions to determine the proper joinder of plaintiffs. All those persons whose rights and interests in the subject-matter, and in the relief demanded, are concurrent with the plaintiffs, must be made parties, and naturally will be made co-plaintiffs, although it is sufficient in most instances if they are brought into the cause as co-defendants. The principle in this very general form is too vague to be of any value as a practical rule, and I shall therefore take up in order the most important classes of cases in which it is applied.

§ 164. * 250. Subordinate General Principles herein. Where Actual Plaintiff holds only Equitable Right or Title, Holder of Legal Right or Title should be made Co-Plaintiff. The first of the subordinate general principles into which the foregoing vague doctrine may be subdivided, is the following: When the actual plaintiff, as above described, has only an equitable estate, interest, or primary right in the subject-matter of the suit, the person who holds the legal estate, interest, or right therein, should be made a party, and primarily a co-plaintiff; for without such joinder the defendant might be subjected to another litigation from this legal owner or holder of the legal title, a result which equity strives in every way to prevent.2 One of the most familiar as well as important illustrations of this general principle is the rule which prevails in suits relating to trust property. When property is held in trust, and an action concerning it is brought by the beneficiary or person claiming under the trust, the trustee, or one in whom the legal title is vested, must be made a co-plaintiff.3 As, for example, when a mortgage has

1 See Jones v. Williams, 31 Ark. 175; Heirs, 9 Bush, 468. See also Weetjin v. Pfohl v. Simpson, 74 N. Y. 137.

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Vibbard, 5 Hun, 265; Sandford v. Jodrell,

2 Sm. & G. 176; O'Brien v. O'Connell, 7 Hun, 228; Holden v. N. Y. & Erie Bk., 72 N. Y. 286, 297; Eldridge v. Putnam, 46 Wis. 205; Dewey v. Moyer, 9 Hun, 473; Fort Stanwix Bk. v. Leggett, 51 N. Y. 552; Fox v. Moyer, 54 id. 125; Bowdoin

been given to a trustee in trust for certain beneficiaries, the trustee and the beneficiaries must unite in a suit to foreclose.1 The principle applies to all cases where the legal title to sue stands in one, and the beneficial interest in the subject and in the result is held by another; both must unite as plaintiffs.2 Thus, if a covenant is made with a trustee for the benefit of a cestui que trust, both must join in an action to compel a specific performance. The case of a simple contract, made by an agent, when the agency appears on the face of the agreement, or can be easily established by extrinsic evidence, does not fall within the operation of this rule, for the principal can sue alone and prove the agency if it is disputed. If, however, the agency does not appear in the contract itself, and the principal or person for whom the agreement is made cannot prove it with ease and certainty, then the agent may be made a party so as to bind his interest.1 When an agent acts in any transaction on his own account as well as on account of his principal, so that he has a beneficial interest in the subject-matter, he must be made a coplaintiff with his principal.5

§ 165. 251. Case of Suits by Assignees. Change Effected by Codes. The case of suits brought by the assignees of things in action is another special example of this general principle.

College v. Merritt, 54 Fed. Rep. 55 (suit to remove cloud from title to trust property; cestuis que trustent may bring suit if the trustees neglect to sue, making the latter defendants); Sawtelle v. Ripley (Wis. 1893), 55 N. W. 156 (action to construe trust in a will; the trustee named therein is a necessary party).

1 Story Eq. Pl. §§ 201, 209; Wood v. Williams, 4 Mad. 86; Hichens v. Kelly, 2 Sm. & G. 264; Boyd v. Jones, 44 Ark. 314; Tyson v. Applegate, 40 N. J. Eq. 305; Applegate v. Tyson, 39 N. J. Eq. 365; Harlow v. Mister, 64 Miss. 25; Wolff v. Ward, 104 Mo. 127.

2 [But see Cape . Plymouth Congregational Church (1903), 117 Wis. 150, 93 N. W. 449, where it was held that a cestui que trust, entitled to possession of real estate, may, without the trustees, maintain an action to enjoin interference with its rights. And in Goble v. Swobe (1902), - Neb. —, 90 N. W. 919, the court said: "Where a trustee refuses to carry out

the terms of a trust, the party or parties beneficially interested may maintain an action in their own right to enforce the trust, and to obtain the benefit thereof." Same rule announced in Zimmerman v. Makepeace (1899), 152 Ind. 199, 52 N. E. 992.]

3 Story Eq. Pl. § 209; Cope v. Parry, 2 Jac. & Walk. 538. See McCotter v. Lawrence, 6 N. Y. Sup. Ct. 392, 395.

1 Daniell's, p. 196; Botsford v. Burr, 2 Johns. Ch. 409; Bartlett v. Pickersgill, 1 Cox, 15. It should be remembered that when a contract is made by an agent in his own name expressly for the benefit of another, he is, according to the codes, a trustee of an express trust, and may sue upon it in his own name, without joining the beneficiary as a party. To this extent the new procedure has modified the rule which prevailed in equity, and which required that both persons should join in bringing the action.

Small v. Attwood, 1 Younge, 407.

Where a legal thing in action had been assigned, the assignee was permitted to sue in equity for its enforcement in his own. name, but the assignor, or his personal representative if he was dead, was an indispensable party, if not as a co-plaintiff, then as a defendant; otherwise the debtor might be subjected to a second action at law in the name of the assignor. This particular rule, however, as has been shown in the preceding sections of the present chapter, has been entirely abrogated in most of the States that have adopted the new procedure, since their codes expressly permit the assignee to sue alone without joining the assignor either as a co-plaintiff or as a defendant; but it is substantially retained by the codes of Kentucky and of Indiana.

§ 166. * 252. Case of Suits for Administration of Decedents' Estates. In ordinary suits for the administration of the estates of deceased persons brought by creditors, legatees, or distributees, a general personal representative of the estate - an administrator or executor is indispensable, and is a necessary party, and should properly be made a co-plaintiff, although he may be put with the defendants.2 These ordinary administration suits, which are the common means in England of winding up and settling the estates of decedents, are practically unknown in this country. It is only under some exceptional circumstances that the equity jurisdiction is with us invoked, not to supersede the action of the probate courts, but to aid it, when if left to itself it would fail to afford complete relief and to do complete justice. Whenever such exceptional circumstances exist, and by reason of fraud, collusion, or other similar cause on the part of the executor or administrator, a creditor, or legatee, or distributee of an estate, may and does bring an action on behalf of the estate, even in such a case the personal representative - the adminis

11 Daniell's, pp. 197-200, and cases there cited. Where an equitable thing in action, or an equitable interest, was assigned, the assignee could sue alone, since there was no possible danger of an action at law by the assignor. Fadwick v. Platt, 11 Beav. 503; Bagshaw v. Eastern Union R. Co., 7 Hare, 114; Blake v. Jones, 3 Anst. 651. There is no difference, under the codes generally, between the assignment of a legal and of an equitable thing in action in respect to the parties.

21 Daniell's, p. 201; Penny v. Watts, 2 Phil. 149, 153; Donald v. Bather, 16 Beav. 26; Croft v. Waterton, 13 Sim. 653. For illustrations of suits by administrators, heirs, etc., see Marsh v. Waupaca Cy. Sup., 38 Wis. 250; Jones v. Billstein, 28 id. 221; Chipman v Montgomery, 63 N. Y. 221; Allison v. Robinson, 78 N. C. 222; Harris v. Bryant, 83 id. 568.

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