To the original petition filed in this cause the defendants demurred, on the ground, among others, that the unincorporated church society had no power or legal capacity to sue. The demurrer was sustained, and thereupon an amended petition was filed, adding as plaintiffs, John J. Lilly, Michael Howell, Patrick O'Malley, and Thomas Clark, members of, and alleged to be trustees of, the church. These persons sue for themselves and all other members of the association. The amended petition also names one hundred or more persons, members of the church, as additional plaintiffs. To this amended petition the defendant demurred, and this demurrer was sustained as to the unincorporated association, but overruled as to the new plaintiffs brought in by the amended petition.

3. The statute allows "any person interested in the probate of the will" to prosecute a suit to contest the same, or to have one proved which has been rejected by the probate court. Assuming that the church is capable of suing, the fact that it is by the will made a devisee gives to it an interest which entitles it to prosecute this suit. The question then arises whether that interest can be represented by the present plaintiffs.

It appeared in the former suit, as it does now, that, at the death of the testator, the Catholic Church, at Lexington, was simply an unincorporated religious association. Thereafter, the members of the church organized as a corporation, and that suit was instituted by the incorporated association. It was held that the incorporation of the plaintiff did not vest in it the property rights of the church society, and for that reason the plaintiff could not maintain the suit. Trustees of a charity are often incorporated for the purpose of executing the trust, and, since the church society was doubtless incorporated to enable it the better to protect the devise in question, the correctness of the conclusion reached in that case, as to the rights of the corporation to prosecute the suit, may well be doubted. It was, however, held in that case, and we think correctly held, that the church society did not lose its existence, or become wholly merged in the corporation.

The constitution provides that "No religious corporation can

be established in this state, except such as may be created under a general law for the purposes only of holding the title to such real estate as may be prescribed by law for church edifices, parsonages, and cemeteries." Art. 2, sec. 8. As a church can only be incorporated for the specified purposes, it was held that the church organization for religious purposes must continue after incorporation. In view of an intimation then made, this suit was commenced in the name of the unincorporated society, but a demurrer to the petition was sustained because of the want of capacity in the plaintiff to sue. It is now insisted that Lilly, O'Malley, Howell and Clark, who were made parties plaintiff by the amended petition and who are members of the church and sue for themselves and all other members of the association cannot prosecute this suit.

It is a well-established rule in equity pleading that one or more of the members of a voluntary association, whether organized for public or for private purposes, may sue for and in behalf of all the members. Story Eq. Plead. (9 Ed.), secs. 94 and 114a. The right of a few persons to sue for themselves and all other persons similarly situated has been recognized by this court on several occasions: 52 Mo., 81; 67 Mo., 203. It is true that this is an equity rule, and we have no statute extending it to actions at law, as is the case in some of the states. It has also been said in several cases that a suit to contest a will, or to establish one which has been rejected by the probate court, is an action at law. Lyne v. Marcus, 1 Mo., 410; Swain v. Gilbert, 3 Mo., 347; Young v. Ridenbaugh, 67 Mo., 574; McIlraith v. Hollander, 73 Mo., 112. Such a suit is doubtless one at law in the sense that it is a statutory proceeding. But this court said in the case of Eddie v. Parke's Ex'r, 31 Mo., 513, which was a suit to contest a will: "Although this is technically a proceeding at law, yet in many respects it partakes of the nature of a proceeding in chancery, and the rules recognized in courts of equity, with respect to the persons necessary to be made parties to a bill, we think, is to a great extent applicable to a case of this kind." Looking to the parties who should be brought before the court, the method of making up and submitting the issue of will or no will, and the character and form of the judgment, we can but conclude that a suit to contest or establish a will has many of the features of a suit in chancery; and the equity rule allowing one or more members of a voluntary association to sue for all should be applied to cases like the one in hand.

It results from what has been said that it is a matter of no consequence that some of the other named plaintiffs have died or ceased to be members of the church, or are minors or married women. They may be disregarded as unnecessary parties. *** Judgment affirmed.

Section 3. Joinder of Defendants.

CODE PROVISIONS: "Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party defendant, for the complete determination or settlement of a question involved therein, except as otherwise expressly prescribed in this act. In any action brought, affecting real estate upon which the people of the state of New York have or claim to have lien, under the transfer tax act, the said people of the state of New York may be made a party defendant, in the same manner as a private person. In such a case the summons must be served on the attorney general, who may appear in behalf of the people."-N. Y. Code Civ. Proc. Sec. 447.

See, also Sec. 448, ante, p. 212.

Two or more persons, severally liable upon the same written instrument, including the parties to a bill of exchange or a promissory note, whether the action is brought upon the instrument, or by a party thereto to recover against other parties liable over to him; may, all or any of them, be included as defendants in the same action, at the option of the plaintiff.-N. Y. Code Civ. Proc. Sec. 454.

'Any person may be

a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein. And in actions to recover possession of real estate, the landlord and tenant thereof may be joined as defendants, and any person claiming title or a right of possession to real estate may be made a party plaintiff or defendant, as the case may require, to any such action."-Mo. R. S. 1899, Sec. 543.

See, also Sec. 544, ante, p. 212.

"Every person who shall have a cause of action against sev

eral persons, including parties to bills of exchange and promissory notes, and who shall be entitled by law to one satisfaction therefor, may bring suit thereon jointly against all or as many of the persons liable as he may think proper; and he may, at his option, join any executor or administrator or other person liable in a representative character, with others originally liable."-Mo. R. S. 1899, Sec. 545.

"In cases of joint obligations and joint assumptions of copartners or others, suits may be brought and prosecuted against any one or more of those who are so liable."-Mo. R. S. 1899, Sec. 892.

(a) Parties Who May be Joined.

PHILLIPS v. FLYNN.

71 Mo. 424. [1880.]

This was a suit for rent against defendant Blackburn. Flynn was joined as a co-defendant. The petition averred that he had purchased of Blackburn the crop raised on the demised premises; that the purchase was made with full knowledge that it had been so raised, and that plaintiff's rent was not paid, and that plaintiff was, therefore, entitled to a landlord's lien upon the crop. It further averred that Flynn had sold and shipped the crop, so that the lien could not be specifically enforced. There was a prayer for a general judgment against Blackburn, and a prayer that Flynn be required to pay plaintiff out of the proceeds of the sale the amount of such judgment. To this petition Flynn filed a demurrer, which having been overruled, he refused to plead further, and after a trial and verdict against Blackburn, a judgment was entered against both, from which Flynn appealed.

SHERWOOD, C. J. The objections of the demurrant Flynn to the petition, were well taken for these reasons: 1st, The petition united in the same count two distinct causes of action, one arising ex contractu, the other ex delicto. 2d, Two distinct causes of action not belonging to the same class, were united in the petition. 3d, There was an improper joinder of parties defendant, Blackburn, who was declared against on a breach of contract, and Flynn for a tort. It is unnecessary to notice the other errors assigned. Judgment reversed and cause remanded. All concur.

TROWBRIDGE v. FOREPAUGH.

14 Minn. 133. [1869.]

Appeal from an order of the court of common pleas, Ramsey county, sustaining a demurrer to the complaint.

The action is against Joseph L. Forepaugh, and Monroe and, Romaine Shiere, and the city of St. Paul, for an injury caused by plaintiff falling into a hole on Third Street, in St. Paul, across the front of defendant Forepaugh's lot. The complaint alleges the excavation of the hole by the defendants Forepaugh and the Shieres, and that they willfully and negligently left it open without protection or notice, and that plaintiff fell into it and was injured. It alleges the duty of the city to keep the streets and sidewalks in repair, free from obstructions, and in suitable condition for use and travel, notice to it, and that it suffered the hole to remain without protection or notice. The defendants, other than the city, demurred for an improper joinder of causes of action.

WILSON, C. J. The liability of the city depends on a state of facts not affecting its co-defendants; and the converse. Neither is in fact nor in law chargeable with, or liable on account of, the matter set up as a cause of action against the other. They did not jointly conduce to the injury by any acts either of omission or commission.

Under such circumstances we find no case holding that a joint action is maintainable; and we are of the opinion that it is unauthorized by any statute or legal principle. Our statute, which is merely declaratory of the common law, forbids the joinder of causes of action, which do not affect all the parties to the action. Gen. Sts. c. 66, § 98. For such improper joinder of causes of action any defendant may demur. There is nothing in the statute, and we discover no reason, requiring all the defendants to join in such a demurrer.

Order affirmed.