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controversy distinct from that of those whom he sought to represent; for example, a mortgagee was not allowed to sue in behalf of general creditors while enforcing his mortgage,15 but later authorities seem to have changed this doctrine.16

All on whose behalf one sues must appear to have an interest in the relief prayed for by him.17

In such a suit, the bill may be dismissed at any time before decree by the consent of those who are then joined as plaintiffs, 18 but not afterwards, since by the decree a right becomes vested in the others.19 The court will nearly always allow a bill filed by an individual in his own right to be amended, so as to allow him to sue on behalf of himself and other members of a class.20 The ordinary cases of bills filed by one person of a class on behalf of others similarly situated are bills by stockholders of corporations.21 By members 22 or officers 23 of unincorporated associations, such as a traffic association of merchants,24 or a religious society,25 by bondholders, 26 of whom the holders of bonds secured by successive mortgages may, after the death of all the trustees, sue for a foreclosure on behalf of himself and

15 Burney v. Morgan, 1 Sim. & S. 358, 362; Palmer v. Foote, 7 Paige (N. Y.) 437; White v. Hillacre, 3 Y. & C. 597.

16 Galveston R. Co. v. Cowdrey, 11 Wall. 459, 20 L. ed. 199; Mason v. Bogg, 2 Myl & Cr. 443; Story's Eq. Pl., § 101, and cases there cited. 17 Newton v. Earl of Egmont, 4 Simons, 574, 585; Jones v. Garcia del Rio, 1 T. & R. 297.

18 Handford v. Storie, 2 Sim. & S. 196; Hubbell v. Warren, 8 Allen (Mass.), 173; Hirshfield v. Fitzgerald, 157 N. Y. 166, 46 L.R.A. 839; § 361, infra.

19 Handford v. Storie, 2 Sim. & S. 196; York v. White, 10 Jurist, 168; Innes v. Lansing, 7 Paige (N. Y.), 583.

20 Johnson v. Compton, 4 Simons, 47; Lloyd v. Loaring, 6 Ves. 773; Daniell's Ch. Pr. (5th Am. ed.) 236, note 6, and 245, and cases cited.

21 Bacon v. Robertson, 18 How. 480, 15 L. ed. 499; Seminole Securities Co. v. Southern Life Ins. Co., 182 Fed. 85, 86; Wallworth v. Holt, 4 Myl. & Cr. 619; Taylor v. Salmon, 4 Myl. & Cr. 134; Hichens v. Congreve, 4 Russell, 562; Gray v. Chaplin, 2 Sim. & S. 267; Crease v. Babcock, 10 Met. (Mass.) 532; Noble v. Gadsden L. & Imp. Co., 133 Ala. 250, 91 Am. St. Rep. 27; s. c., 31 So. 856; Stearns Coal & Lumber Co. v. Van Winkle, C. C. A., 221 Fed. 590.

22 Bainbridge v. Burton, 2 Bearan 539; Sharpe v. Bonham, 213 Fed. 660.

23 Merchants' & Mfg. Traffic Ass'n v. U. S., 231 Fed. 292. 24 Ibid.

25 Sharpe v. Bonham, 213 Fed. 660.

26 Trustees of the Wabash & Erie Canal Co. v. Beers, 2 Black, 448, 17

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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 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,38 or property owners subject to an assessment; 39 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

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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.

39 McIntosh v. Pittsburg, 112 Fed. 705.

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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.

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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. 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. 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

48

§ 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.

43 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

45 Mangels v. Donau Brewing Co., 53 Fed. 513.

46 Whittaker v. Whittaker Iron Co., 238 Fed. 980; Kohlhamer v. Smietanka, 239 Fed. 408.

47 Motley v. Southern Ry. Co., 184 Fed. 956, 958.

48 Ibid.

49 Watson v. National Life & Tr. Co., C. C. A., 189 Fed. 872.

50 Re Dennett, C. C. A., 221 Fed. 350, 357.

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common, 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

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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. 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

1

3 Anon., 1 Chancery Cases, 269; Conyers v. Lord Abergavenny, 1 Atk. 285; Brown v. Vermuden, 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.

on behalf of all who have severally bought with notice parcels of it since his right accrued, praying that their conveyances be set aside as in fraud of his rights.14 It has been held that in a suit by a railroad company against a State Commission, to enjoin the enforcement of charges for freight, shippers of articles affected by such charges may properly be joined as defendants, as representatives of their class, upon an allegation that unless an injunction is granted against them they will attempt to enforce such rights.15

An alien was not allowed to sue on behalf of himself and all other aliens seeking work to restrain the enforcement of a State statute limiting the employment of aliens.16

"It has long been settled, that if a person has a common right against a great many of the king's subjects, inasmuch as he cannot contend with all the king's subjects, a court of equity will permit him to file a bill against some of them, taking care to bring so many persons before the court that their interests shall be such as to lead to a fair and honest support of the public interest, and when a decree has been obtained, then with respect to the individuals whose interest is so fully and honestly established, the court on the footing of the former decree will carry the benefit of it into execution against other individuals. who were not parties. Thus, a city may file such a bill to establish its right to levy a duty; 18 and it has been suggested that a suit may thus be brought by one of many persons jointly interested in a geographical trade-mark.19

17

Such suits cannot be brought against some of the inhabitants of a town to establish the title to property severally held by them and others; 20 nor by a carrier against a few shippers to

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

15 Northern Pac. Ry. Co. v. Lee, 199 Fed. 621. Contra, St. Louis, Iron Mountain & Southern Ry. Co. v. McKnight et al., Railroad Commissioners of the State of Arkansas, et al., 244 U. S. 368.

16 Raich v. Truax, 219 Fed. 273, aff'd on another point as Truax v. Raich, 239 U. S. 33.

17 Lord Eldon in Weale v. West

Middlesex Water Works Co., 1 Jae. & Walk. 358, 369.

18 City of London v. Perkins, 3 Bro. Parl. Cas. 602; Mayor of York v. Pilkington, 1 Atk. 282.

19 City of Carlsbad v. Tibbetts, 51 Fed. 852, 856, per Putnam, J. 20 Priest v. Las Vegas, 232 U. S. 604.

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