other stockholders, as well as the trustees, are necessary parties. 50 It has been held that a corporation is so far a representative of its stockholders that none of them need be joined in a suit for an accounting, under a lease which provides for the payment of dividends directly to its stockholders." It has been held that a State statute authorizing one or more officers of an unincorporated association to represent the others in the courts, when suing or being sued about a matter concerning their common interest, will be followed by a Federal court of equity, and the members conclusively presumed to have the same citizenship as such officers.52 § 46. Suits by a complainant on behalf of himself and others similarly situated.-When a number of persons have a common interest in a thing which is the subject of litigation, and, in some instances, when a number of persons have a common interest in a question which is before the court for decision, one or more may sue or be sued in behalf of the rest. Judge Story divides the first of these divisions into two: "(1) When the question is one of a common and general interest, and one or more sue or defend for the benefit of the whole;" and "(2) when the parties form a volutary association for public or private purposes, and those who sue or defend may fairly be presumed to represent the rights and interests of the whole." 1 But there seems to be no reason for treating these two classes separately. When one or more thus file a bill on behalf of themselves and others similarly interested, they must state in the title of their bill that they so sue, and show that the others are numerous or unknown.2 Any others of the class have the right to join with them in the suit at any time upon payment of their share of the costs, and counsel fees which have been then paid or incurred, provided they do not seek to 50 Ryan v. Seaboard R. Co., 89 Fed. R. 397. ? Hoe v. Wilson, 9 Wall. 501. Ogilvie v. Knox Ins. Co., 2 Black, 51 Pacific R. of Mo. v. Atlantic & P. 539; s. c., 22 How. 380; Ex parte JorR. Co., 20 Fed. R. 277. dan, 94 U. S. 248; Hallett v. Hallett, 2 Paige (N. Y.), 15; Leigh v. Thomas, 2 Ves. Sen. 313; Ransom v. Davis, 18 How. 295; Story's Eq. Pl., § 99. 52 Fargo v. Louisville, N. A. & C. Ry. Co., 6 Fed. R. 787; Whitman v. Hubbell, 30 Fed. R. 81; Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566. But see Chapman v. Barney, 129 U. S. 677, and supra, § 19. § 46. Story's Eq. PL., § 97. 4 Central R. Co. v. Pettus, 113 U. S. 116; Trustees v. Greenough, 105 U. S. 527. act in hostility to the original complainants," in which case the court may in its discretion allow them to intervene. If their joinder as plaintiffs would oust the court of jurisdiction, they may be brought in as defendants. Such a bill may be filed even when a majority of those interested object to the suit.8 For "where a matter is necessarily injurious to the common right, the majority of the persons interested can neither excuse the wrong nor deprive all other parties of their remedy by suit." To such a bill it is not necessary to make defendants all who object to its being filed, provided that enough are brought before the court to sufficiently represent their interest. 10 It was originally held that no one could sue on behalf of others who claimed for himself an interest in the matter in 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; " but recent authorities seem to have changed this doctrine.12 All on whose behalf one sues must appear to have an interest in the relief prayed for by him." 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," but not afterwards, since by the decree a right becomes vested in the others.15 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. 16 5 Forbes v. Memphis, El Paso & Pacific R. Co., 2 Woods, 323. 12 Galveston R. Co. v. Cowdrey, 11 Wall. 459; Mason v. Bogg, 2 Myl 6 Galveston R. Co. v. Cowdrey, 11 & Cr. 443; Story's Eq. PL., § 101, and Wall. 459, 478. 7 Brown v. Pacific Mail S. S. Co., 5 Blatchf. C. C. 525, 535. But see Stewart v. Dunham, 115 U. S. 61. 8 Bromley v. Smith, 1 Simons, 8; Taylor v. Salmon, 4 Myl. & Cr. 134; Story's Eq. Pl., § 114. But see Jones v. Garcia del Rio, 1 Turn. & Russ. 300. 9 Bromley v. Smith, 1 Simons, 8, 11. 10 Clinch v. Financial Corporation, L. R. 4 Ch. App. 117, at p. 122; Story's Eq. Pl., § 135 b. 11 Burney v. Morgan, 1 Sim. & S. 358, 362; Palmer v. Foote, 7 Paige (N. Y.), 437; White v. Hillacre, 3 Y. & C. 597. cases there cited. 13 Newton v. Earl of Egmont, 4 Simons, 574, 585; Jones v. Garcia del Rio, 1 T. & R. 297. 14 Handford v. Storie, 2 Sim. & S. 196; Hubbell v. Warren, 8 Allen (Mass.), 173; Hirshfeld v. Fitzgerald, 157 N. Y. 166. 15 Handford v. Storie, 2 Sim. & S. 196; York v. White, 10 Jurist, 168; Innes v. Lansing, 7 Paige (N. Y.), 583. 16 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. § 47. Illustration of bills filed by representatives.-The ordinary cases of bills filed by one person of a class on behalf of others similarly situated are bills by stockholders of corporations;1 by members of unincorporated associations;2 by railroad bondholders, of whom one holding bonds secured by successive mortgages may, after the death of all the trustees, sue for a foreclosure on behalf of himself and the holders of each class of the bonds which he owns; and bills by creditors." In a case where a railroad mortgaged its property directly, without the intervention of a trustee, to fifteen bondholders, naming them, and the adequacy of the security was doubtful, it was held that one could not sue on behalf of the rest, but that all the bondholders must be joined as parties to the bill." Where there were one hundred and twenty bonds of $500 each, secured by a mortgage to a trustee, and all the bonds were held by three persons, it was held that all the bondholders were indispensable parties to a bondholder's foreclosure suit, although the plaintiff's bondholder filed his bill on behalf of the others as well as of himself. It was held that such a suit cannot be brought by the holder of a certificate of stock which had not been transferred on the books of the corporation to his name. Such bills may also be filed by one or more legatees,' at least if not residuary legatees; 10 by one of several next of kin; " by one of many partners; 12 by one of a class for the benefit of which a charity was founded; 13 and by one of the crew of a privateer seeking § 47. 1 Bacon v. Robertson, 18 How. 480; 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. 2 Bainbridge v. Burton, 2 Beav. 539. 3 Trustees of the Wabash & Erie Canal Co. v. Beers, 2 Black, 448; Galveston R. Co. v. Cowdrey, 11 Wall. 459; Central R. Co. v. Pettus, 113 U. S. 116. 4 Galveston R. Co. v. Cowdrey, 11 Wall. 459, 478. 5 Fink v. Patterson, 21 Fed. R. 602. 6 Railroad Co. v. Orr, 18 Wall. 471. 7 Mangels v. Donau Brewing Co., 53 Fed. R. 513, per Hanford, C. J. 8 Brown v. Duluth & N. Ry. Co., 53 Fed. R. 889, 894. 9 Bennett v. Honywood, Ambler, 708; Story's Eq. Pl., § 104, and cases cited. 10 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. 11 Story's Eq. Pl., § 105. 12 Chancey v. May, Prec. Ch. 592; Small v. Atwood, 1 Younge, 407. 13 Smith v. Swormstedt, 16 How. 388. an account from a defendant who has collected their joint prize money; 14 but not by one of several importers to enjoin the seizure of their different imports under an unconstitutional statute.1 15 § 48. 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 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 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. 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; 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. The equity rule upon this subject is as follows: "When the parties on either side are very numerous, and cannot, without manifest inconvenience and oppressive delays in the suit, be all brought before it, the court in its discretion may dispense with making all of them parties, and may proceed in the suit, having sufficient parties before it to represent all the adverse interests of the plaintiffs and the defendants in the suit properly before it. But in such cases the decree shall be 6 3 Yardley v. Philler, 58 Fed. R. 746. Brown's Ch. 101; Cousins v. Smith, 7 Am. Steel & Wire Co. v. Wire 8 Mandeville v. Riggs, 2 Pet. 482; Railroad Co. v. Howard, 7 Wall. 392. 9 Wood v. Dummer, 3 Mason, 315. 1 without prejudice to the rights and claims of all the absent parties." 10 It has been said that "this rule has always been understood to modify somewhat the general doctrine in England, that parties, 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 associa tion 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 § 49. 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.' 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, though the plaintiff and those represented by him had no common inter 10 Rule 48; McArthur v. Scott, 113 U. S. 340, 395. 11 Am. Steel & Wire Co. v. Wire Drawers' & Die Makers' Unions, 90 Fed. R. 598, 605, per Hammond, J. § 49. 1 West v. Randall, 2 Mason, 181, 195. 2 Ayres v. Carver, 17 How. 591. |