Opinion of the Court. not within the statute. In The Cincinnati Strect Railroad Company et al. v. Smith et al., 29 Ohio St., 291, 303, Gilmore, J., speaking of these sections says: "The sections do not provide remedies that were previously unknown. Courts of equity had long taken jurisdiction and granted injunctions in such cases when properly presented by interested individuals, whose rights were put in jeopardy by the illegal or unauthorized acts, or threatened acts, of municipal corporations. The sections were therefore simply intended to regulate the practice in such cases to this extent, that applications for injunctions in such cases should be made by the city solicitor, and should not be made without his knowledge." The fact, therefore, that the relief sought by the taxpayer in the present case is not within the terms of those statutes does not show in him a want of capacity to sue. Platt, etc., v. Colvin et al., 50 Ohio St., 703, was a suit by a stockholder in the United States Express Company, a joint stock association, to recover money that had been stolen from the company. In the court of common pleas a demurrer to the petition was sustained on the ground that the plaintiff was without capacity to sue. In the opinion Williams, J., after stating the rule in chancery, that suits must be prosecuted by the real parties in interest, and all who unite in interest must be joined, and citing cases illustrative of the application of the rule with its exceptions, says: (711) "The rule, and its exceptions, in their breadth and substance, were adopted into our code (Sections 4993, 5007 and 5008, Revised Opinion of the Court. Statutes), and, by its provisions made applicable to the civil action which it substituted for what was theretofore known as the suit in equity and the action at law." And it is there held that: "Section 5008, of the Revised Statutes, which provides that when the parties are very numerous and it is impracticable to bring them all before the court, one or more may sue for the benefit of all, applies to actions of a legal, as well as to those of an equitable nature." And it is held that a stockholder in the unincorporated joint stock association might sue in behalf of himself and all other stockholders for the recovery of the money which had been stolen from the company. If a stockholder in such an association may sue in behalf of himself and the other stockholders, and if a taxpayer may sue to enjoin the misapplication of the funds of a city, we see no good reason why he may not be permitted to sue on behalf of the city to recover the funds that have been misapplied. If those entrusted with the custody of public funds, or those whose duty it is to protect the public interests are remiss in their duty, or refuse to act, the taxpayer should be permitted to do so, and the courts in the exercise of a sound discretion will prevent any abuse of the privilege. Mr. Justice Field in Crampton v. Zabriskie, 101 U. S., 601, savs: "Of the right of resident taxpayers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county, or the illegal creation of a debt which thev, in common with other propertyholders of the county, may otherwise be compelled Opinion of the Court. to pay, there is at this day no serious question. The right has been recognized by the state courts in numerous cases; and from the nature of the powers exercised by municipal corporations, the great danger of their abuse, and the necessity of prompt action to prevent irremediable injuries, it would seem eminently proper for courts of equity to interfere, upon the application of the taxpayers of a county, to prevent the consummation of a wrong, when the officers of these corporations assume, in excess of their powers, to create burdens upon property-holders. Certainly, in the absence of legislation restricting the right to interfere in such cases to public officers of the state or county, there would seem to be no substantial reason why a bill by or on behalf of individual taxpayers should not be entertained to prevent the misuse of corporate power. The courts may be safely trusted to prevent the abuse of their process in such cases." And Judge Dillon (Dillon on Municipal Corporations [4 ed.], Section 922),' after a survey of the cases, American and English, states his conclusion to the effect that the taxpayer may invoke the aid of the courts to prevent the abuse of its powers by a municipality and that, in the absence of statutory regulations, the right to do so is not inconsistent with the right so to do in the state or some public officer. In Webster et al. v. Douglass County, 102 Wis., 181, it is said by Winslow, J., that: "It is well settled in this state that a taxpayer may maintain an action in equity, on behalf of himself and all other taxpayers, to restrain public officers from paying out the public money for illegal purposes and may Opinion of the Court. also, under the proper circumstances, compel public officers and even third persons to repay into the public treasury money already paid out illegally." To the same effect is Land, Log & Lumber Company v. McIntyre, 100 Wis., 245. A solicitor is not one of the officers of a village provided for by the municipal code, and the regulations prescribed by Sections 1777 and 1778 do not apply. The fact that the suit in the present case is in the name of the village on relation of the taxpayer instead of in the name of the taxpayer for the use of the village, or on behalf of all the taxpayers of the village, has not in it sufficient merit to require a denial of relief, but the court may treat the action as one in the name of the taxpayer on behalf of the village. It follows that the plaintiff is not without legal capacity to sue. There are cases that hold that the defendants joined must be charged in the same character and cannot be charged personally and officially. See Pomeroy's Remedies and Remedial Rights, Section 502, and Bliss' Code Pleading, Section 123, where the cases are cited and criticised. The object of the present suit is to recover from the defendants personally and not as councilmen, money averred to have been illegally paid to them from the village treasury, no judgment or relief against them as officials is asked, and we think they as councilmen are misjoined as defendants. The next question raised by the demurrer is whether separate causes of action against several defendants are improperly joined. On the facts Opinion of the Court, stated the village might have maintained an action against each of the defendants to recover the money paid to him, but as said by Mr. Justice McLean in Gains and Wife v. Chew et al., 2 Howard, 619, 643: "There can be no doubt that a bill might have been filed against each of the defendants, but the question is whether they may not all be included in the same bill." He also says (642): "In general terms a bill is said to be multifarious, which seeks to enforce against different individuals, demands which are wholly disconnected." And it is there held that the defendants were not misjoined although they had purchased distinct parcels of real estate and at different times because their title depended upon the power of the executors to convey the land, and in this controlling question they had a common interest. In Penn v. Hayward, 14 Ohio St., 392, 306, Peck, C. J., says: "There is much obscurity in the title of the code as to 'parties to civil actions,' owing to the effort to blend, in one system, the rules pertaining to suits at law and in chancery; but the rules of courts of equity will be found to predominate in its provisions." The rule in equity pleading as to multifariousness is made applicable to the civil action of the code by the provision for a demurrer on the ground that separate causes of action against several defendants are improperly joined, and an examination of the cases in which that rule is applied leads to the conclusion that the defendants are properly joined. The controlling question is the right of the councilmen to compensation when it has not been fixed by ordinance. In that question the |