been held that the number thirty-five was not sufficiently great.1 When one sued on behalf of an association by its name, upon a promissory note, and alleged in his complaint that it was unincorporated, and that its members were very numerous, the mere facts thus alleged were held to be insufficient. Undoubtedly in such a case the plaintiff should sue on behalf of the persons who compose the society, and not on behalf of the society itself. Indeed, this point has been directly decided. It is held that, in case of such a society whose members are too numerous to bring them all before the court, the plaintiff must make one of them a defendant as a representative of the others, and not make the association a defendant.3

§ 291. *394. Particular Instances. The following are some particular instances in which these principles have been applied, and in which it has been held that the action might be maintained by one or more for the benefit of the others. One creditor may sue on behalf of all the other creditors in an action to enforce the terms of an assignment in trust for the benefit of creditors, to obtain an accounting and settlement from the assignee and other like relief; also, in an action to set aside such an assignment on the ground that it is illegal and void; and also one judgment creditor may sue on behalf of all other similar creditors in an action to reach the equitable assets, and to set aside the fraudu lent transfers of the debtor. In all these classes of cases the creditors have a common interest in the questions to be determined by the controversy. When a mortgage had been given

46

1 Kirk v. Young, 2 Abb. Pr. 453, per Clerke J. at S. T. Undoubtedly, a number much less than thirty-five would be sufficient when a common interest" is set up. In an action by creditors it was held, by a very able English judge, that twenty was too small a number Harrison v. Stewardson, 2 Hare, 530. [See Hodges v. Nalty (1899), 104 Wis. 464, 80 N. W. 726, from which we quote as follows: 'Seventy-five persons is surely a very large and unwieldy number of persons to join in an action where it is practicable for a few to settle the controversy for the benefit of all. A line must be drawn somewhere, and, while it may be difficult to draw it at any precise number, we hold that seventy-five is a sufficient number, in a case like the present, to justify the court

46

in allowing one or more to sue for all.” This was a case in which ten subscribers brought an action for the benefit of all subscribers who had paid their subscriptions against a subscriber who had refused to pay his subscription. See also George v. Benjamin (1898), 100 Wis. 622, 76 N. W. 619, holding that thirty-one "was not so large as to be called very numerous and render it impracticable to bring them all before the court." Tobin v. Portland Mills Co. (1902), 41 Ore. 269, 68 Pac. 743.]

2 Habicht. Pemberton, 4 Sandf. 657. 8 Keller v. Tracy, 11 Iowa, 530; Stewart v. Erie & W. Transp. Co., 17 Minn. 372, 398.

4 Greene v. Breck, 10 Abb. Pr. 42; Brooks v. Peck, 38 Barb. 519. See Story's Eq. Pl. §§ 99-103; 1 Dan. Ch. Pl. (4th

by a railroad company to a trustee in order to secure bondholders, and he desired to obtain directions of the court in respect to the payment of coupons, and brought an action for that purpose, and alleged in his complaint that the holders of the coupons were very numerous, so that it was impracticable to bring them all before the court, it was held proper, and within the provision of the code, to make a few of these persons defendants as the representatives of all the others, with suitable averments showing the reasons for such a form of action. Conversely, a suit can be maintained by one on behalf of all to foreclose a mortgage when the number of mortgagees, or of bondholders, is large. It would be hardly necessary in such a case that the number of persons should be so great as to make it impracticable to bring them all in; they have a common interest in the questions at issue. The provision also applies to actions by distributees for their shares, and by legatees brought to settle the estate and to recover their legacies; and to actions by heirs to set aside a deed or will of their ancestors. In both these cases there is a common interest

3

among the claimants.)

§ 292. *395. Same Subject. An action by members or shareholders of an unincorporated association for a dissolution, winding up, and division, or for other like relief, plainly falls within

Am. ed.), pp. 235, 237. See also Libby v. Norris, 142 Mass. 246; Sears v. Hardy, 120 Mass. 524; Mason v. Pomeroy, 151 Mass. 164. Twenty creditors were held to be too small a number in Harrison v. Stewardson, 2 Hare, 530. [Williams v. Meloy (1897), 97 Wis. 561, 73 N. W. 40; Harper v. Carroll (1895), 62 Minn. 152, 64 N. W. 145; Corey v. Sherman (1895), 96 Ia. 114, 64 N. W. 828; Herrick v. Wardwell (1898), 58 O. St. 294, 50 N. E. 903.]

1 Coe v. Beckwith, 10 Abb. Pr. 296. See Reid v. The Evergreens, 21 How. Pr. 319. [In Gorley v. City of Louisville (1901), Ky., 65 S. W. 844, it was held that where a large number of policemen have claims against the city for compensation during the time they were illegally suspended, several may sue for the benefit of all, and that the aggregate amount would determine the jurisdiction, and not the amount claimed by each one of the parties.]

2 Blair v. Shelby Cy. Agr. Soc., 28 Ind. 175. and thirty-eight mortgagees. Bardstown & L. R. Co. v. Metcalf, 4 Metc. (Ky.) 199. See also Carpenter v. Cincinnati, etc. Ry. Co., 35 Ohio St. 307; Chicago, etc. Land Co. v. Peck, 112 Ill. 408.

Action on behalf of one hundred

8 McKenzie v. L'Amoureux, 11 Barb. 516; Towner v. Tooley, 38 Barb. 598. In the first of these cases the number of persons represented by the plaintiff was three. Story's Eq. Pl. §§ 104, 105; 1 Dan. Ch. Pl. (4th Am. ed.), p. 238; Hallett r. Hallett, 2 Paige, 18-20, 21; Fish v. Howland, 1 Paige, 20, 23; Brown v. Ricketts, 3 Johns. Ch. 553. See also Hills v. Putnam, 152 Mass. 123 (bill for instructions as to the disposition of an estate not defective for want of parties, if the numer ous claimants are fully represented by those having similar interests); Hills v. Barnard, 152 Mass. 67.

306.

4 Hendrix v. Money, 1 Bush (Ky.),

the statutory provision, and may be brought by one of the associates in a representative capacity. In some instances the proceeding would plainly fall within the first subdivision, since there would be a common interest among all the members or shareholders; in other instances, it might, perhaps, fall within the second, and be based upon numbers alone.1 The question, whether one taxpayer or freeholder can sue for the benefit of others similarly situated, to restrain or set aside the acts of local officials done under color of authority, can only be properly considered and determined by those courts which hold that such actions are proper in their general form. Wherever this particular kind of action is condemned in toto, the decision of the particular point now referred to must, of course, be entirely extra-judicial. In the States which permit such suits by a taxpayer or freeholder generally, there is some conflict of opinion in respect to the question whether one can sue on behalf of others similarly situated with himself. It has been held in Wisconsin that an action cannot be maintained by one taxpayer as a representative of all others in a local district, to prevent the enforcement of an alleged illegal tax which would be a lien upon real estate, on the ground that the lands owned by the individual taxpayers, and affected by the tax, are distinct and separate parcels, and there is no common interest among the owners thereof. The conclusion was that each taxpayer must sue separately.2

§ 293. *396. Nature of such Action. What Essential on Part of those not Named in order to become Parties. I pass now to consider the nature of an action brought by lone on behalf of others, and its effects upon the rights and duties of those who are represented by the actual plaintiffs. The persons not named in such cases are not parties to the suit unless they afterwards elect to come in and claim as such, and bear their proportion of the

1 Warth v. Radde, 18 Abb. Pr. 396; Gorman v. Russell, 14 Cal. 531; Von Schmidt. Huntington, 1 Cal. 55; Stewart v. Erie & W. Transp. Co., 17 Minn. 372, 398; Cockburn e. Thompson, 16 Ves. 321; Story's Eq. Pl. §§ 107-115b; 1 Dan. Ch. Pl. (4th Am. ed.), pp. 238, 239; Atlanta Real Estate Co. v. Atlanta Nat. Bank, 75 Ga. 40; Dousman v. Wisconsin, etc. Co., 40 Wis. 418; Chester v. Halliard, 36 N. J. Eq. 313.

2 Newcomb v. Horton, 18 Wis. 566;

Perry v. Whitaker, 71 N. C. 477; [McCann v. City of Louisville (1901), - Ky. —, 63 S. W. 446; Commonwealth v. Scott (1901), 112 Ky. 252, 65 S. W. 596. In this case one of many taxpayers of an illegal tax sued to recover, for the benefit of all, the taxes so paid. The action was sustained notwithstanding the party in whose name suit was brought was a non-resident of the county. See, however, Stiles v. City of Guthrie (1895), 3 Okla. 26, 41 Pac. 383.]

expenses. It is optional with them whether they will become

parties or not, and until they so elect they are, in the language of the books, "in a sense deemed to be before the court." // They are so far before the court, that if they neglect, after a reasonable notice to them for that purpose, to come in under the judgment and establish their claims, the court will protect the defendants and parties named from any further litigation in respect of the same fund or other subject-matter, especially so far as such litigation may tend to disturb the rights of the parties as fixed by the judgment. A person who elects to come in and make himself a party must apply for an order making him such, and upon the granting the order he is to all intents and purposes a party.2 § 294. * 397. Equity Rule. Rule in Kentucky. This rule, which is merely the doctrine and practice of equity applied to cases arising under the statutory provision, has not been acquiesced in by all the courts. In Kentucky, where the chancery has always existed as a separate tribunal, and where even under the code there is a nominal distinction kept up between legal and equitable actions, it is held that the assent of those who are not actual parties, but who have a common interest with their representative, will be presumed unless they show their disapproval by some act indicating the dissent. This is in direct conflict with the rule first stated./ According to the one, the persons who are represented must do some affirmative act of approval and adoption, and regularly this act should be an application to the court, and the obtaining an order declaring them to be in all respects parties; according to the other, these persons must do some act of disaffirmance and rejection, but what particular act is not disclosed.

$295. *398. Question whether One has made himself a Party may present itself in Two Aspects. The question whether any specified person among the number of those represented had made himself or was a party to the suit, may present itself in

1 Story's Eq. Pl. § 99; Adair v. New River Co., 11 Ves. 444.

2 Stevens v. Brooks, 22 Wis. 695, 703, 704, per Dixon C. J.; Hallett v. Hallett, 2 Paige, 18, per Walworth Ch.; Good v. Blewit, 19 Ves. 336, 339, per Lord Eldon; Story's Eq. Pl. § 99; Barker v. Walters, 8 Beav. 92; Belmont Nail Co. v. Columbia

Iron & Steel Co., 46 Fed. Rep. 336. Creditors who refuse to join are postponed to those creditors who do come in under the general creditors' bill. Bank of Rome v. Haselton, 15 Lea (Tenn.), 216. See also Bilmyer v. Sherman, 23 W. Va. 656.

8 Flint v. Spurr, 17 B. Mon. 499, 513.

two very different aspects, and its answer may be necessary for two very different purposes. In the first place, the question may be, whether this individual, as against the defendants in the action, and perhaps as against those who were the original plaintiffs, or who had made themselves such, is entitled to the immediate benefits of the recovery, to a share in the relief granted by the court in its decree. It is evident that, under this aspect of the matter, a slight affirmative act of assent and adoption may be sufficient if the person is then willing and does contribute his share to the expenses of the litigation. The nature of the cause of action may be such that, if the relief is granted at all, it will necessarily enure to the benefit of all who may be situated in the same position as the actual plaintiff./ On the other hand, the cause of action may be such that a separate application will be necessary to bring each person within the operation of the judgment, although the decision made in one case may control that in all others: as, for example, in a creditors' suit to set aside fraudulent transfers of the debtor's land, and let in the liens of the plaintiffs' judgments, a separate action of the court is necessary in the case of each judgment creditor, in order that he may reap the benefit of the general decision pronouncing the debtor's transfer to be void.

[To the point that one cannot be made a party plaintiff against his consent, see Tobin v. Portland Mills Co. (1902), 41 Ore. 269, 68 Pac. 743, the court saying: "A person materially interested in the subject-matter of a suit may, against his will, be made a party defendant, but we know of no rule whereby he can, without his consent, be joined as plaintiff. The desire of a person to be joined as a party plaintiff is indicated by a willingness to bear his share of the expenses of the trial and while 35 of the depositors were anxious to participate in the profits of the suit if any were realized, 34 of them, tacitly, at least, expressed their unwillingness so to contribute, thereby manifesting their dissent to being joined as plaintiffs, notwithstanding which a decree is given in their favor, thus in effect making them parties against their will. Besides this, the 101 depositors, having made voluntary affidavits of their respective claims for

wheat deposited at Black's warehouse at Halsey, could, if they so desired, have expressed their assent to be joined as plaintiffs, thereby demonstrating the practicability of bringing them all before the court. If the depositors had not been interrogated in respect to their willingness to pay their part of the expenses, the law would probably have presumed that, as they were anxious to secure their share of the grain alleged to have been shipped to the defendants they were also willing to contribute their part of the expenses incurred in recovering it, or its value; but their testimony dispels such presumption, if it could ever have been invoked." But see McCann v. City of Louisville (1901), — Ky. —, 63 S. W. 446, in which it is held that, under the facts therein stated, parties may be made plaintiff against their consent. In this case the statutory provision under dicussion was invoked.]