scribed, and may thus stand in the place of others whose rights and interests are determined together with his own. These two cases depend upon distinct and separate facts and circumstances, and are as follows: (1) There must be a "question of common or general interest" to many persons involved in the action. The two essential elements of this case are, the question of common or general interest to be determined, and the many persons who have this common or general interest in the matter at issue. The "many persons" in this case is opposed to the very numerous parties in the other, and is doubtless satisfied by a number actually less. It is certainly not necessary, in order to fulfil its requirements, that there should be any impracticability of bringing all the persons having the common or general interest before the court. (2) The second case depends entirely upon the number of the persons who should, according to the ordinary rule, be made plaintiffs or defendants. The single essential element is the impracticability of bringing all the parties before the court on account of their great number. The language does not in terms require any question of common or general interest to this great number, but it is difficult to conceive of an action in which a very large number of persons should be capable of joining as plaintiffs+so large that it would be impracticable to bring them all actually before the court- unless the question to be determined was one of common or general interest to them all. It inevitably follows, therefore, from the customary nature 1 [See Hawarden v. The Youghiogheny & Lehigh Coal Co. (1901), 111 Wis. 545, 87 N. W. 474, in which the court said: "It is to be noted that there are two cases named in the statutes referred to in which one may sue for all, viz.: (1) When the question is one of common or general interest of many persons, and (2) when the parties are very numerous, and it is impracticable to bring them all before the court. The latter class was under consideration in the cases of George v. Benjamin, 100 Wis. 622, and Hodges v. Nalty, 104 Wis. 464; hence what is said in those cases as to the number of persons which will be deemed very numerous,' is inapplicable here, because this case comes under the first subdivision, which only requires the presence of a question of common or general interest of many per sons." See also Tobin v. Portland Mills Co. (1902), 41 Ore. 269, 68 Pac. 743, quoting the text.] 2 [The language of the courts, respectively, in the cases of Tobin v. Portland Mills Co. (1902), 41 Ore. 269, 68 Pac. 743, and George v. Benjamin (1898), 100 Wis. 622, 76 N. W. 619, suggests, but does not settle, the question, whether the statutory provision can be invoked when the interest is joint. In the former case the court, in referring to the latter clause of the section, said: It" in effect enacts the third exception to the rule in equity, in respect to the necessity of making all persons immediately interested in the subject-matter parties, omitting therefrom, however, the words, and although they have, or may have, separate, distinct interests.' This omission cannot mean that the legislative of litigations, that these two cases described by the statute are in practice constantly united; they constantly run into each other. In fact, it seldom if ever happens that a suit arises which falls strictly within the terms of the second case, and not within those of the first.1 § 287. *390. Necessary Allegations herein. Whenever these provisions are invoked, in order that a plaintiff may be entitled to sue or a defendant to be sued in the representative character described, the facts showing that the requirements of either case have been complied with must not only exist, but must be alleged by the plaintiff as the very ground and reason for adopting the peculiar form of action permitted by the statute. The complaint or petition must show either that many persons have a common or general interest in the questions involved in the action, or else that the number of persons who would be joined as plaintiffs or defendants, if the ordinary rule was applied, is so very great that it is impracticable to make them all actual parties. Unless the pleading contains these averments, the action must be regarded as though brought by the single plaintiff or against the single defendant named.2 It should be carefully observed that assembly intended thereby to limit the third exception to cases in which the very numerous parties mentioned had a joint and indivisible interest in the subject matter of the suit, for to give the statute such construction would render the statute superfluous, as the preceding clause of the section extends the second exception to that very class of parties, but limits it to a less number." It seems to be assumed by the court, in this language, that the statute applies to the case of a joint and indivisible interest in the subject-matter of the suit. Turning to the language of the court in George v. Benjamin, we find it reads as follows: "It requires but a mere inspection of the complaint to show that the claim that the question involved in this action is one of a common or general interest to many persons' is not justified by the facts alleged. It shows positively and definitely that all are united in interest. . . It seems too plain for argument that the complaint fails to state any fact which shows that the parties to this contract have a common or general interest which would enable each to maintain an action in his own name if he was before the court." The court then proceeds to show that, in accordance with the common law rules as stated by Dicey and Chitty, "the fact that all the parties to the contract are united in interest affords a sufficient reason for holding that they are necessary parties to the action." And finally concludes the discussion of this question by saying: "So in whatever view we consider the case we are unable to see how the plaintiff can maintain the action alone.” Bearing in mind the facts of the two cases, it is difficult to reconcile the language of the courts.] 1 [See Hawarden v. The Youghiogheny & Lehigh Coal Co., supra, for a case where the two do not "run into each other." Hodges v. Nalty (1899), 104 Wis. 464, 80 N. W. 726.] 2 [Castle v. Madison (1902), 113 Wis. 346, 89 N. W. 156. In this case the court said: "It is argued that it is impracticable to bring in all the riparian owners, and that all interests are represented in the suit as it is This contention cannot be sustained. It is not shown that this provision does not create any, new rights of action, nor enlarge any of those now existing. The suit cannot be sustained by one as the representative of the many others who really sue in his name, unless it could have been maintained if all these many others had been regularly joined as co-plaintiffs, or unless it could have been maintained by each of them suing separately and for himself.) The statutory provision is simply a matter of convenience, a rule of form, a means of enabling many persons to have their rights determined without their actual appearance in court as litigant parties. § 288. *391. Judicial Interpretation of Statute. Order Pursued in Examination of Decided Cases. Passing to the judicial interpretation of the clause, I shall ascertain, from an examination of the decided cases, (1) when one person may sue or be sued in a representative capacity; and (2) the purpose and object of such form of action, and especially its effects upon the rights and duties of the other persons who are represented in and by the actual party. The conclusions reached in the preceding paragraphs as to the meaning of the provision, and the two distinct cases mentioned in it, are fully sustained by the authorities. The construction of this section of the codes has been established by the courts, and the rule is settled as already stated, that, where the question to be decided is one of "common or general interest" to a number of persons, the action may be brought by or against one or all the others, even though the parties are not so numerous that it would be impracticable to join them all as actual plaintiffs or defendants; but, on the other hand, when the parties are so very numerous that it is impracticable to bring them all into court, one may sue it is impracticable to bring all the owners into the suit. We shall not assume that it is because they are numerous. Further, the owners who have been let in are not here in a representative capacity. The order making them parties allows them in on their own behalf alone, and not on behalf of any other riparian owner. If it be shown that there is difficulty in making the numerous owners defendants, "and the court believes that some may be proceeded against as representatives of a class under the statute, so that the litigation as carried on will end the controversy as to or be sued for all the others, 1 even though they have no common or general interest in the questions at issue; and the necessary facts to bring the case within one or the other of these conditions must be averred.2 § 289. *392. Statute re-enacts Equity Rule. Must be some Connection between Parties Represented in both Cases. Test. This section of the codes is a re-enactment of a rule which had prevailed in equity, and is to receive a construction which will make it identical with the pre-existing doctrine. Although the case 1 McKenzie v. L'Amoureux, 11 Barb. 516. See also Towner v. Tooley, 38 Barb. 598, 607. would be impracticable to bring them all before the court. .. It requires but a mere inspection of the complaint to show ... 2 Bardstown & L. R. Co. v. Metcalf, that the claim that the question involved 4 Metc. (Ky.) 199, 204. 8 [George v. Benjamin (1898), 100 Wis. 622, 76 N. W. 619. In this case thirty-one persons by written agreement formed a syndicate to purchase, manage, and sell a tract of land, and each agreed to contribute a certain sum at once, and to pay from time to time such sums as should be needed for payments. One of the number was made trustee, and a trust in favor of each was declared to the extent of a one-thirty-first interest in the land. The suit was brought by the trustee in behalf of himself and associates against one of the parties to said agreement to recover $4,900, claimed to be due on the agreement. Plaintiff, to support his right to bring the action in his own name alone, relied upon the provisions of the statute under discussion in the text. The court said: "He seeks to sustain his right to maintain this action on the two grounds mentioned in the statute,—that the question involved is one of common and general interest of many persons, and that the parties are very numerous, and it is impracticable to bring them all before the court. As stated in Day v. Buckingham, 87 Wis. 215, and repeated in Frederick v. Douglas Co., 96 Wis. 411, this statute has been construed as merely re-enacting the rules which prevailed in equity, and which otherwise might have been held to be abolished by the code. So, also, it has been held that when the question is one of common or general interest, the action may be brought by one or more for the benefit of all who have such common or general interest, without showing that the parties are even numerous, or that it in this action is one of common or general interest to many persons' is not justified by the facts alleged. On the contrary, the complaint shows that the question involved arises out of contract, personal to each one of the subscribers to it. It shows positively and definitely that all are united in interest. Each subscriber to the contract agrees with every other subscriber that he will pay such sum or sums as shall be needed for future pay ments on said property, as the same are demanded and required by the parties in interest herein.' . . . It would seem too plain for argument that the complaint fails to state any fact which shows that the parties to this contract have a common or general interest which would enable each to maintain an action in his own name if he was before the court." In Hodges v. Nalty 104 Wis. 464, 80 N. W. 726, the court, after quoting statutory provisions under discussion, made reference to George v. Benjamin as follows: "This section was recently considered in the case of an action to enforce payment of a subscription to a business enterprise (George v. Benjamin, 100 Wis. 622), and it was held that the complaint did not show a common or general interest in all the subscribers, and that the number of subscribers, which was thirty-one in that case, was not so large as to be called very numerous and render it impracticable to bring them all before the court; hence it was held that all must join in that case. That case rules the present case upon the first branch of the section, . . ." Platt e. Colvin (1893), 50 O. St. 703, 36 N. E. 735. For a very interesting and recent case, secondly mentioned omits the element of a "common or general interest," and speaks only of the very great number as the sole ground for permitting one to sue or to be sued for all the others, yet even in this case there must be some connection between the parties who are to be represented, according to the familiar principles of equity procedure. The right which the suit is brought to assert must in some manner or degree belong to all who are represented by the actual plaintiff; and all the persons who are represented by the actual defendant must have some interest adverse to the demand for relief set up by the action. The parties thus représented by the plaintiff or defendant may not be in privity with each other, but there must be some bond of connection which unites them all with the questions at issue in the action. The test would be to suppose an action in which all the numerous persons were actually made plaintiffs or defendants, and if it could be maintained in that form, then one might sue or be sued on behalf of the others; but if such an actual joinder would be improper, then the suit by or against one as a representative would be improper, notwithstanding the permission contained in this section of the statute.1 § 290. 393. Applicable both to Legal and Equitable Actions. Number of Parties in Second Case. The provision applies both to legal and to equitable actions, since no restriction or limitation. is contained in its language; but when the second case is relied upon, the parties must be so numerous that it is really impracticable to make them all actual plaintiffs or defendants; and it has see Commonwealth v. Scott (1901), 112 Ky. 252, 65 S. W. 596, where the court, after a review of the equity practice, says: "Section 25 of Civil Code of Practice of this State, which is substantially a reenactment of section 37 of the former Code, recognizes and codifies this equitable practice. It is this: If the question involve a common or general interest of many persons, or if the parties be numerous and it is impracticable to bring all of them before the court within a reasonable time, one or more may sue or defend for the benefit of all.'" Tobin v. Portland Mills Co. (1902), 41 Ore. 269, 68 Pac. 743.] 1 Reid v. The Evergreens, 21 How. Pr. 319, 321, per Emmott J. citing Story's Eq. Pl. § 123; Adair r. New River Co., 11 Vesey, 444; 1 Turner & Russ. 297; 2 Sim. L test |