22

nership, all the partners must be made parties; but if one of the partners be resident in a foreign country, so that he cannot be brought before the court, and the fact is so charged in the bill, the court will ordinarily proceed to make a decree against the partners who are within the jurisdiction, provided it can be done without manifest prejudice to the absent partner.2 This ground of exception is peculiarly applicable to suits in equity in the federal courts, which can, in general, be maintained only by and against citizens of different states. In such courts it is a general rule to dispense, if consistently with the merits of the case it can be done, with all parties over whom the court would not possess jurisdiction. 23 Persons who are out of the jurisdiction, who are ordinarily proper and necessary parties, can be dispensed with only when their interests will not be prejudiced by the decree, and when they are not indispensable to the just ascertainment of the merits of the case before the court.24 Under the English practice, the bill should not only allege that the person is out of the jurisdiction, but should pray process against him, so that he may be amenable to the process of the court, if he should come within the jurisdiction.25 If the persons who are out of the jurisdiction are merely passive objects of the judgment of the court, or their rights are merely incidental to those of the parties before the court, then they may be dispensed with; but if they are to be active in the performance or execution of the decree, or if they

22 Story, Eq. Pl. § 78; Mitford, Eq. Pl. 164; Cooper, Eq. Pl. 35; Carey v. Hoxey, 11 Ga. 645; Gregory v. Stetson, 133 U. S. 579; Lawrence v. Rokes, 53 Me. 110.

23 Story, Eq. Pl. § 79; Hazard v. Durant, 19 Fed. 471; Foster, Fed. Pr. (3d Ed.) § 50; Lake St. Elevated R. Co. v. Ziegler, 99 Fed. 114; Shingleur v. Jenkins, 111 Fed. 452; Shields v. Barrow, 17 How. (U. S.) 130; Cleveland Telegraph Co. v. Stone, 105 Fed. 795. See Rev. St. U. S. § 737, which is declaratory of this doctrine.

24 Story, Eq. Pl. § 81; California v. Southern Pac. R. Co., 157 U. S. 229; Gregory v. Stetson, 133 U. S. 579; Shingleur v. Jenkins, 111 Fed.

452.

25 Story, Eq. Pl. § 80; Mitford, Eq. Pl. 165; Munoz v. De Tastel, 1 Beav. 109. See, also, Haddock v. Thomlinson, 2 Sim. & S. 219.

have rights wholly distinct from those of the other parties, or if the decree ought to be pursued against them, then the court cannot properly proceed to a determination of the whole cause without their being made parties.26 The absent party cannot be compelled to do any act, but if the disposition of the property in controversy is in the power of the other parties, the court may act, upon and through them, upon that property.27

§ 23. (1b) Omission of personal representative.

Where a personal representative of a deceased person is a necessary party, but it is alleged in the bill that no such representative is in existence, or that the representation is in litigation in some appropriate tribunal, the court will retain the bill, notwithstanding the want of parties, and proceed to a decree, if it can be done without prejudice, and, if not, then it will postpone the cause until the proper parties can be made.28

$ 24. (1c) Where persons are unknown.

If the persons who are proper parties are unknown to the complainant, and the fact is so charged in the bill, and the bill seeks a discovery of those parties, for the purpose of bringing them before the court, the objection of want of parties will not be allowed to prevail.29 Where it is impossible to join as parties, or to ascertain the names of, all the members of a

26 Story, Eq. Pl. § 81; Mitford, Eq. Pl. 31, 165; Meux v. Maltby, 2 Swanst. 277.

27 Story, Eq. Pl. § 87; Smith v. Hibernian Mine Co., 1 Schoales & L. 238.

28 Story, Eq. Pl. § 91; Mitford, Eq. Pl. 177; Cooper, Eq. Pl. 35; Foster, Fed. Pr. (3d Ed.) § 58; Beach, Mod. Eq. Pr. § 62; Humphreys v. Humphreys, 3 P. Wms. 349; Jones v. Frost, 3 Madd. 1; Plunket v. Penson, 2 Atk. 51. See, however, Read v. Bennett, 55 N. J. Eq. 587, 37 Atl. 75.

29 Mitford, Eq. Pl. 180; Story, Eq. Pl. § 92; Fenn v. Craig, 3 Younge & C. Exch. 216; Heath v. Percival, 1 P. Wms. 682; Alger v. Anderson, 78 Fed. 729.

church organization, a suit by the organization to enforce a trust may proceed without making all such members parties.3

$25. (2) Persons exceedingly numerous-In general.

30

Another exception to the general rule as to parties is where they are exceedingly numerous, and it would be impracticable to join them without almost interminable delays and other inconveniences which would obstruct, and probably defeat, the purposes of justice. In such cases the court will not insist upon their being made parties, but will dispense with them, and proceed to a decree, if it can be done without injury to the persons not actually before the court. In all cases governed by the exception, it should be alleged in the bill, unless it is otherwise apparent upon its face, that the parties are too numerous to make it practicable, even if known, to prosecute the suit if all are made parties.31 Thus, where the stock of a

30 Whitney v. Mayo, 15 Ill. 251. Statutory provisions are found in some states, authorizing persons whose names are unknown to be made parties to proceedings by the names and description of "unknown owners," or some similar designation.

Section 7 of the Illinois chancery act, which provides that in suits in chancery and suits to obtain title to lands, if there be persons interested in the same whose names are unknown, they may be made parties by the name and description of "unknown owners," must be fairly and reasonably complied with, and not evaded by making a known person a party under such description. A complainant knowing the parties in interest, and adopting the mode authorized by this provision, is guilty of a fraud on the law and on the parties in interest thus described, against which the courts will relieve. Wellington v. Heermans, 110 Ill. 564. See, also, Seymour v. Edwards, 31 Ill. App. 50. Where a bill alleges that the heirs of a deceased woman are unknown, and makes them defendants as such, and it appears from the exhibits and proofs that the husband of such deceased woman is her heir, he becomes a necessary party, and must be brought before the court. Taylor v. Bate, 4 T. B. Mon. (Ky.) 267.

31 Story, Eq. Pl. §§ 94, 95; West v. Randall, 2 Mason, 181, Fed. Cas. No. 17,424; Von Schmidt v. Huntington, 1 Cal. 55; Eller v. Bergling, 3 MacArthur (D. C.) 189; Carey v. Hoxey, 11 Ga. 645; Smith v. Rotan, 44 Ill. 506; Hills v. Putnam, 152 Mass. 123, 25 N. E. 40; Boisgerard v. Wall, Smedes & M. Ch. (Miss.) 404; Whitney v. Mayo, 15 Ill. 251.

joint-stock company was divided into money shares and labor shares, and certain holders of the latter class of shares brought suit against certain holders of the money shares, praying, in effect, for a dissolution of the company, and distribution of its effects, and the whole of neither class of stockholders were made parties, it was held that, the stockholders being numerous, and it being difficult, if not impracticable, to bring them all into court, sufficient parties were before the court to authorize it to adjudicate the rights of all, and dissolve the company, and distribute its assets.32

§ 26. (2a) One suing for all, where question is one of common or general interest.

It is a well-established rule in equity that one or more persons having an interest in common with others may sue in equity for themselves, and on behalf of such others, to establish the common rights of all, or may defend for the benefit of the whole.83 Thus, a few creditors may maintain a suit on behalf of themselves and all other creditors of a deceased debtor, against his proper representative, for an account and application of his estate, real as well as personal, in payment of their demands; but a few creditors will not be permitted to bring a bill for an account and administration of the assets, without saying in the bill that it is brought on behalf of themselves and all the rest of the creditors.34 Where a suit is brought to enforce subscriptions to the capital stock of a corporation, as part of a trust fund for the benefit of the creditors of such corpora

32 Von Schmidt v. Huntington, 1 Cal. 55. For practice in the federal court, see Equity Rule U. S. 48, relative to suits where there are numerous parties. American Steel & Wire Co. v. Wire Drawers' & Die Makers' Unions Nos. 1 and 3, 90 Fed. 598.

33 Story, Eq. Pl. § 97; Whitney v. Mayo, 15 Ill. 251; Smith v. Swormstedt, 16 How. (U. S.) 288; New London Bank v. Lee, 11 Conn. 112, 27 Am. Dec. 713; West v. Randall, 2 Mason, 181, Fed. Cas. No. 17,424; Vernon v. Reynolds, 20 R. I. 552, 40 Atl. 419; Smith v. Bank of New England, 69 N. H. 254, 45 Atl. 1082.

34 Mitford, Eq. Pl. 166; Story, Eq. Pl. § 99; Leigh v. Thomas, 2 Ves. Sr. 312; Brown v. Ricketts, 3 Johns. Ch. (N. Y.) 553.

tion, the bill must be framed so as to be for the benefit of all the creditors entitled to such fund.35 A legatee at least, if not a residuary legatee is permitted to sue the personal representative of the testator, on behalf of himself and all other legatees, in order to secure a settlement of the accounts of his administration, and a payment of all the legatees.

36

While one or more persons will be permitted, in certain cases, to represent all who have similar interests, yet it must appear that the relief sought by him who sues is in its nature beneficial to all those whom he undertakes to represent, and where it does not so appear the bill will not be entertained.87

§ 27. (2b) Parties forming a voluntary association.

A class of cases constituting an exception to the general rule is where the parties form a voluntary 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. In such cases the persons interested are commonly numerous, and any attempt to unite them all in the suit would be, even if practicable, exceedingly inconvenient. Under such circumstances, the court will allow a bill to be brought by some of the parties on behalf of themselves and all the others, taking

35 Handley v. Stutz. 137 U. S. 366; First Nat. Bank of Sioux City v. Peavey, 75 Fed. 154; Hornor v. Henning, 93 U. S. 228.

36 Story, Eq. Pl. § 104; Hallett v. Hallett, 2 Paige (N. Y.) 20. 87 Hill v. Kensington Com'rs, 1 Pars. Sel. Eq. Cas. (Pa.) 501; Attorney General v. Heelis, 2 Sim. & S. 67; Jones v. Del Rio, Turn. & R. 297. Persons, neither partners nor co-contractors, engaged in making street improvements under several and distinct contracts with a city, are not a class of persons having a common interest in the subject of street improvements, concerning which any one or more may sue in equity for the whole. Baker v. Portland, 5 Sawy. 566, Fed. Cas. No. 777; Yeaton v. Lenox, 8 Pet. (U. S.) 126. It is held in New Hampshire that where a bill is filed by a complainant on behalf of himself and others, similarly situated, who may come in and join as complainants, the defendant may have an order that all such persons failing to appear on proper notice shall be barred from participating in the fund, or in any damages recoverable, or from thereafter maintaining any suit upon the same ground. Smith v. Bank of New England, 69 N. H. 254, 45 Atl. 1082