27 and

the holders of each class of the bonds which he owns; bills by creditors.28 To obtain equitable assets which must be divided equally among all creditors 29 or to enforce a trust in favor of creditors of the class to which the complainants belong.30 Such bills may also be filed by one or more legatees,31 at least if not residuary legatees; 32 by one of several next of kin; 33 by one of several beneficiaries of a trust fund; 34 by one of many partners; 35 by one of a class for the benefit of which a charity was founded; 36 by one of the crew of a privateer seeking an account from a defendant who has collected their joint prize money; by one or more taxpayers, or property owners subject to an assessment; or owners of lots in a burying ground; 40 but not by one of several importers to enjoin the seizure of their different imports under an unconstitutional statute.41

37

39

38

Although in such cases it is proper and customary for the plaintiff to allege that he sues in behalf of all, it has been held that such an allegation is not indispensable and that the Court will guard the right of all interested and of its own motion

L. ed. 327; Galveston R. Co. v. Cowdrey, 11 Wall. 459, 20 L. ed. 199; Central R. Co. v. Pettus, 113 U. S. 116, 28 L. ed. 915; Thompson v. Emmett Irr. Dist., C. C. A., 227 Fed. 561.

27 Galveston R. Co. v. Cowdrey, 11 Wall. 459, 478, 20 L. ed. 199, 205.

28 Fink v. Patterson, 21 Fed. 602. 29 John A. Roebling's Sons Co. v. Kinnicutt, 248 Fed. 596; U. S. Smelting Co. v. Hopkins, 245 Fed. 896.

30 Calder & Richmond v. E. W. Rosenthal & Co., 250 Fed. 507; Cook v. Flagg, 255 Fed. 195.

31 Bennett v. Honywood, Ambler, 708; Story's Eq. Pl., § 104, and cases cited.

32 Upon this point, there is a conflict of authority. Compare Brown

v. Ricketts, 3 J. Ch. (N. Y.) 555, and Davoue v. Fanning, 4 J. Ch. (N. Y.) 199, with Kettle v. Crary, 1 Paige (N. Y.), 417, note. See also Story's Eq. Pl., § 89.

33 Story's Eq. Pl., § 105. 34 Watson v. National Life & Tr. Co., C. C. A., 162 Fed. 7.

35 Chancey v. May, Prec. Ch. 592; Small v. Atwood, 1 Younge, 407.

36 Smith v. Swormstedt, 16 How. 288, 14 L. ed. 942.

37 Good v. Blewitt, 13 Ves. 397; West v. Randall, 2 Mason, 181, 194.

38 Crampton v. Zabriskie, 101 U. S. 601, 25 L. ed. 1070.

direct others to be brought in, if this seems necessary for the administration of justice.42

A class suit can not be maintained unless the persons interested are numerous. 43 Such bills were dismissed when so far as appeared there were only two, and in another case three 45 persons entitled to the relief sought.

The bill must show the names and residences of the persons interested who are omitted, so far as they are known to the complainant, and that they are too numerous for convenient joinder.47 It was held that such suit could not be filed by a stockholder of an insolvent railroad company, to compel the issue to him of stock, which he claimed under a reorganization agreement, when he alleged: "Your orator does not know how many others are similarly situated; but he avers, upon information and belief, that there are many other stockholders of the Georgia Pacific Railway simliarly situated, and that their stock amounts to at least $500,000." 48 Where none of the complainants in the class suit are entitled to relief, the court cannot grant relief to persons who have not been joined as parties, on whose behalf it is claimed the suit was brought.49 It has been held that the court is without jurisdiction to enter a final decree establishing the rights of parties represented by the plaintiff until by an interlocutory decree they have had an opportunity to intervene.50

§ 115. Suits against one or more of a class. Similarly, where persons who are jointly liable are very numerous, some may be sued instead of all, provided that the manner in which they are sued, and the fact that they are numerous, are stated

42 Jauch v. Socarras, 56 N. J. E. Q. 524, 531; Lightfoot v. Meyer, N. Y. Sup. Ct. Sp. Tem. per Hotchkiss, J., L. J., June 13, 1916.

48 Railroad Co. v. Orr, 18 Wall. 471, 21 L. ed. 810; Mangels v. Donau Brewing Co., 53 Fed. 513; Motley v. Southern Ry. Co., 184 Fed. 956, 958.

44 Kohlhamer v. Smietanka, 239 Fed. 408.

Fed. Prac. Vol. I-45

in the bill. Ordinarily, the complainant selects such of the class as he chooses to represent the rest. The persons thus selected may be a committee chosen by the rest of the class to act for them in the matters/complained of such as a reorganization, or a protective, committee of stockholders and bondholders, or the managing committee of a clearing-house association. It is proper, however, to name all of the class in the title to the bill, and then have the court select some of these to be served and to defend for the rest.4

2

This rule has been applied to members of a club, or of another unincorporated association when sued for the collection of its debts, or to enjoin a violation of the anti-trust act; 6 to members of a church in a suit affecting the rights of the church to property; to members of a trades union engaged in a strike; & and to the stockholders of a corporation in a suit brought by a creditor after its dissolution to recover the amount of its capital stock which has been divided among them.9 It has been held that in a suit for an injunction, against a voluntary association with numerous members, the whole association will be brought before the court, by service upon its president, secretary, manager and superintendent.10

:

It has been said that "this rule has always been understood to modify somewhat the general doctrine in England, that par

§ 115. 1 Story's Eq. Pl., §§ 116, 117; McArthur v. Scott, 113 U. S. 340, 395, 28 L. ed. 1015, 1032; Baltimore, C. & A. Ry. Co. v. Godeffroy, C. C. A., 182 Fed. 525; Carpenter v. Knollwood Cemetery, 198 Fed. 297.

2 Railroad Co. v. Howard, 7 Wall. 392, 19 L. ed. 117; Carpenter v. Knollwood Cemetery, 198 Fed. 297. 3 Yardley v. Philler, 58 Fed. 746. 4 Ayres v. Carver, 17 How. 591, 15 L. ed. 179.

5 Cullen v. Luke of Queensberry, 1 Brown's Ch. 101; Cousins V. Smith, 13 Ves. 544; Story's Eq. Pl., § 116.

6 U. S. v. Coal Dealers' Ass'n of California, 85 Fed. 252.

7 Sharpe v. Bonham, 213 Fed. 660. 8 Am. Steel & Wire Co. v. Wire Drawers' & Die Makers' Unions, 90 Fed. 598.

9 Mandeville v. Riggs, 2 Pet. 482. 7 L. ed. 493; Railroad Co. v. Howard, 7 Wall. 392, 19 L. ed. 117; Wood v. Dummer, 3 Mason, 315.

10 Spaulding v. Evenson, 149 Fed. 913, 916. See also Stationary Engineer Pub. Co. v. Comerford, 155 Fed. 667, 670; A. R. Barnes Co. v. Berry, C. C. A., 156 Fed. 72. But see Allis-Chalmers Co. v. Iron Molders' Union, 150 Fed. 155, 183; holding that the decree did not bind the absentees or defendants, who had been represented but not served.

ties, not formally served with process, may yet be bound on the principle of representation to the fullest extent that those are bound who are their representatives in the suit. The language of the reservation is that in such cases the decree shall be without prejudice to the rights and claims of all absent parties. The rule especially is framed to allow a suit to proceed without having all the members of an association or of a class of defendants formal parties; but, while preserving the right of the absent ones to afterwards litigate for themselves the same question, it does not prohibit the whole class, when plaintiffs, from taking the benefit of a decree in favor of those who represent them, nor preclude a plaintiff who has sued the whole class by their representatives, from binding the absent parties by supplemental proceedings to bring them in when known, if necessary, and subject them to the decree, when they have had that opportunity to defend against it." 11

§ 116. Suits by or against one or more as representatives of a class claiming a common right. In some instances when a number of persons have a common interest in the decision of a question of fact or law, though they have no common interest in any property which is the subject of litigation, yet as they are said to claim under a common right, one or more of them have been allowed to represent the rest as plaintiffs or defendants in a suit to determine the disputed question.1 Ordinarily, the complainant selects such defendants as he considers proper and sufficient; but he may name all of the class in the title of his bill and ask the court to select a few to defend on behalf of the rest.2

Instances where a suit of this kind has been allowed by one or more as plaintiffs in behalf of others similarly situated have usually occurred when, although the plaintiff and those represented by him had no common interest in property, yet he sought a determination of a question affecting the enjoyment of estates which, though distinct, came to him and the rest from a common source. Thus, one or more tenants or parishioners may sue a lord of a manor or parson, to establish a right of

11 Am. Steel & Wire Co. v. Wire Drawers' & Die Makers' Unions, 90 Fed. 598, 605, per Hammond, J.

§ 116. 1 West v. Randall, 2 Ma

son, 181, 195. See Percy Summer Club v. Astle, 145 Fed. 53.

2 Ayres v. Carver, 17 How. 591. 15 L. ed. 179.

common,3 or of turbary. One or more telephone subscribers may sue on behalf of the rest to prevent an interruption of service. One or more owners of water rights may sue on behalf of all to enjoin an excessive use of the water supply. Two or more foreign corporations were permitted to file a bill, on behalf of themselves and all other foreign corporations similarly affected, in order to enjoin the execution of an unconstitutional statute. A few defendants have been allowed to represent a large class, not only when all of that class had some privity of estate, but also in other cases. Thus, a parson was allowed to sue a few on behalf of all his parishioners to establish a disputed right to tithes.8 -A lord of a manor may sue some on behalf of all of his tenants to establish their duty to grind at his mill, or his right of enclosure, or to enforce a rent-charge.10 The court refused to sustain a suit by citizen of a state in behalf of all citizens of the United States to enjoin the Governor of his state from sending to the Legislature an amendment proposed to the Federal Constitution.11

Bills were sustained when brought by those interested in contesting the legality of the issue of certain certificates of indebtedness, against some on behalf of all of the holders of such certificates; 12 and when brought by the purchaser to set aside a sale to him by a decedent against the executor of the vendor and some of his heirs at law, the other heirs at law being unknown.13 It seems that a bill can be sustained when filed by a claimant to the equitable title to a tract of land against some

3 Anon., 1 Chancery Cases, 269; Conyers v. Lord Abergavenny, 1 Atk. 285; Brown v. Vermuden, 1 Ch. Cas. 272; Smith v. Earl Brownlow, L. R. 9 Eq. 241.

4 Baker v. Rogers, Sel. Ch. Cas. 74.

5 Stephens v. Ohio State Telephone Co., 240 Fed. 759.

6 Arizona Copper Co. v. Gillespie, 230 U. S. 46.

7 Greenwich Ins. Co. v. Carroll, 125 Fed. 121.

8 Brown v. Vermuden, 1 Ch. Cas. 272; Hardcastle v. Smithson, 3 Atk.

9 Brown v. Vermuden, 1 Ch. Cas. 272. Cf. U. S. v. Dastervignes, 118 Fed. 199; s. c., C. C. A., 122 Fed.

30.

10 Attorney-General v. Wyburgh, 1 P. Wms. 599; s. c., 2 Eq. Cas. Abr. 167; Attorney-General v. Jackson, 11 Ves. 365, 367; Attorney-General v. Shelly, 1 Salk. 162.

11 Ohio ex rel. Erkenbrecker v. Cox, 257 Fed. 334.

12 Sheffield Water Works v. Yeomans, L. R. 2 Ch. App. 8.

13 Alger v. Anderson, 78 Fed. 729,

733.