care that there shall be a due representation of all substantial interests before the court. Such a bill must be brought on behalf of all the parties in interest, for, if it be brought for the complainants alone, it will not be sustained by the court, for want of proper parties.38 Thus, where a bill was brought by some shareholders in a joint-stock company, the stock of which was divided into six thousand shares, on behalf of all the shareholders, to compel the directors of the company to refund moneys improperly withdrawn by them from the treasury of the company, and applied to their own use, upon an objection being taken for the want of proper parties, the court overruled it, holding that justice would be unattainable if all the shareholders were required to be made parties to the suit, and that a separate bill by each shareholder to recover his proportion of the money would produce enormous inconvenience and multiply litigation.39 Where the members of an unincorporated society are numerous, an action may be brought for it in the names of a portion of the members, in behalf of themselves and all others, or in the name of a committee appointed by the society for that purpose.40

A like doctrine to that above stated obtains where there are many persons defendant belonging to a voluntary association against whom a suit is brought.1 Thus, it was held that it is not necessary to make parties to a suit against a voluntary association all its members scattered throughout the United States

88 Story, Eq. Pl. § 107; Whitney v. Mayo, 15 Ill. 255; Guilfoil v. Arthur, 158 Ill. 600, 41 N. E. 1009; Baldwin v. Lawrence, 2 Sim. & S. 18; Chancey v. May, Finch, Prec. Ch. 592; Pearce v. Piper, 17 Ves. 1; Gray v. Chaplin, 2 Sim. & S. 267; Attorney General v. Heelis, 2 Sim. & S. 67; Bromley v. Smith, 1 Sim. 8; Jones v. Del Rio, Turn. & R. 300; Small v. Attwood, Younge, 407. See American Steel & Wire Co. v. Wire Drawers' & Die Makers' Unions Nos. 1 and 3, 90 Fed. 598.

39 Story, Eq. Pl. § 109; Hichens v. Congreve, 4 Russ. 562.

40 Guilfoil v. Arthur, 158 Ill. 600, 41 N. E. 1009; Beatty v. Kurtz, 2 Pet. (U. S.) 584.

41 Story, Eq. Pl. § 116; Adair v. New River Co., 11 Ves. 444; Cullen v. Queensberry, 1 Brown, Ch. 101; Meux v. Maltby, 2 Swanst. 284; Cousins v. Smith, 13 Ves. 544; Boisgerard v. Wall, Smedes & M. Ch. (Miss.) 404.

and Canada; but service upon a part, acting for other members. as well as for themselves, is sufficient.42 It is held that in a suit to restrain an unlawful combination, acting as an unincorporated association, it is sufficient that the association, together with a large number of its members, as individuals, and officers of the association, are made parties defendant.43

§ 28. (2c) Numerous parties having separate and distinct interests.

Another class of cases constituting an exception to the general rule as to parties is where the parties are very numerous, and, although they have or may have separate and distinct interests, yet it is impracticable to bring them all before the court, and on this account they are dispensed with. In this class of cases there is usually a privity of interest between the parties, but such privity is not the foundation of the exception. In all of these cases, however, there always exists a common interest or common right which the bill seeks to establish and enforce, or a general claim or privilege which it seeks to establish, or to narrow, or take away. Under such circumstances, the interests of persons not actual parties to the suit may be in some measure affected by the decree, but the suit is nevertheless permitted to proceed without them, in order to prevent a total failure of justice. In most, if not in all, cases of this sort, the decree obtained upon such a bill will ordinarily be held binding upon all

42 Fitzpatrick v. Rutter, 160 Ill. 282, 43 N. E. 392.

48 United States v. Coal Dealers' Ass'n of California, 85 Fed. 252. But in American Steel & Wire Co. v. Wire Drawers' & Die Makers' Unions Nos. 1 and 3, 90 Fed. 598, it is held that voluntary associations cannot be sued as such, and a bill against such associations by name, which also joins with them as defendants, in its caption, a large number of individuals, but which contains no allegation showing that such individuals compose or are members of such associations, is entirely defective as against the associations.

44 Story, Eq. Pl. § 120; Mitford, Eq. Pl. 168 et seq.; Anonymous, 1 Ch. Cas. 269; Attorney General v. Wyburgh, 1 P. Wms. 599; City of York v. Pilkington, 1 Atk. 282; Wood v. Dummer, 3 Mason, 308, Fed. Cas. No. 17,944; Balley v. Tillinghast, 99 Fed. 801; Smith v. Bank of New England, 69 N. H. 254, 45 Atl. 1082.

other persons standing in the same predicament, the court taking care that sufficient persons are before it honestly, fairly, and fully to ascertain and try the general right in contest.45 Thus, where there is one general right to demand service from the inhabitants of a large district, as, for example, a right to demand that all the individuals of a large district should grind the corn for their subsistence at a particular mill, the mill owner may sue a few in equity to establish his right against all, but so many must be joined as will fairly and honestly try the legal right.46 Where a bill sought to quiet the complainants' right of fishery in the River Ouse, of which the complainants claimed the sole fishery for a large tract, against the defendants, who, as the bill suggested, claimed several rights, either as lords of manors or as occupiers of the adjacent land, and also for a discovery, and an account of fish which they had taken, it was urged that there was no privity between the defendants, but that the bill treated them as distinct trespassers, and that there was no general right to be established against them. The court, however, sustained the bill, on the ground that there was a general right of a sole fishery, asserted by the complainants against all the defendants, and the defendants were not precluded from setting up distinct exemptions and their distinct rights in their defense.47 In this class of cases, all the parties stand, or are supposed to stand, in the same situation, and have one common right or one common interest, the operation and protection of which will be for the common benefit of all, and cannot be to the injury of any. Therefore the bill is permitted to be filed by a few on behalf of themselves and all others, or against a few, and yet to bind

45 Story, Eq. Pl. § 120; West v. Randall, 2 Mason, 181, Fed. Cas. No. 17,424; Adair v. New River Co., 11 Ves. 444; Weale v. Proprietors of West Middlesex Water Works, 1 Jac. & W. 369; City of York v. Pilkington, 1 Atk. 282; Brown v. Vermuden, 1 Ch. Cas. 272; City of Chicago v. Collins, 175 Ill. 445, 51 N. E. 907; American Steel & Wire Co. v. Wire Drawers' & Die Makers' Unions Nos. and 3, 90 Fed. 598.

46 Story, Eq. Pl. § 123; Adair v. New River Co., 11 Ves. 444.

47 Story, Eq. Pl. § 125; Mitford, Eq. Pl. 145, 146; City of York v. Pilkington, 1 Atk. 282,

the rights and interests of the others. If it is filed by the complainants on behalf of themselves only, and not on behalf of all the other persons in interest, it will be held bad on demurrer.48

§ 29. Decree furnishing a ground to dispense with numerous parties.

The nature of the decree which is asked and given may sometimes furnish a ground to dispense with parties, where they are very numerous; as, for example, where the bill seeks only for a contribution pro rata towards a common charge, the extent of the liability being clearly ascertainable, and admitting and requiring a several apportionment.49 Though the numerousness of parties, as well as their being unknown, constitutes, or may constitute, a good ground for dispensing with their being made actual parties to a suit, yet this exception is not allowed to operate where the decree must directly affect the interests of the persons not before the court, and they have a right and an interest to be heard before the decree is made.50 Thus, it was held that where one of thirty-eight proprietors of a newspaper was appointed bookseller, and received the moneys of the concern, on a bill brought by twelve of the proprietors, on behalf of themselves and all the other proprietors, for an account, the remaining twenty-five proprietors ought to have been made parties by name, since it did not appear that the suit was necessarily for their benefit.51

§ 30. (3) Persons whose interests are very small.

It has been held that, when the interest of an absent defend

48 Story, Eq. Pl. § 126; Douglas v. Horsfall, 2 Sim. & S. 184; Ball v. Ball, 20 R. I. 520, 40 Atl. 234; Chafee v. Quidnick Co., 13 R. I. 442. 49 Story, Eq. Pl. § 127. For instances of such decrees, see Wood v. Dummer, 3 Mason, 308, Fed. Cas. No. 17,944; Mare v. Malachy, 1 Mylne & C. 559; Turner v. Hill, 11 Sim. 1; Anonymous, 2 Eq. Abr. 166, pl. 7. 50 Story, Eq. Pl. § 130.

51 Bainbridge v. Burton, 2 Beav. 539. For other cases illustrating these qualifications, see Beaumont v. Meredith, 3 Ves. & B. 180; Evans v. Stokes, 1 Keen, 29; Van Sandau v. Moore, 1 Russ. 441; Walburn v. Ingilby, 1 Mylne & K. 76; Wallworth v. Holt, 4 Mylne & C. 619; Blain V. Agar, 1 Sim. 37.

ant is evidently very small, the court will dispense with his presence in the suit, upon the principle de minimis non curat lex.52

§ 31. (4) Persons with interests created to oust jurisdiction.

The English courts hold that where a mortgagee, who has a plain, redeemable interest, makes other conveyances upon trust, in order to entangle the affair, and to render it difficult for a mortgagor or his representative to redeem, it is not necessary for the complainant to trace out all the persons who have an interest in such trust, to make them parties.53 It is sufficient if the original owner of the property is made a defendant.54 A federal court will not allow parties, by fraud or collusion, to deprive it of, or to give it, jurisdiction, by colorable or fictitious assignments, but will closely scrutinize the merits and the substance.55

§ 32. (5) Parties disclaiming all interest in the controversy, or against whom rights are waived, or who consent to the decree.

A complainant may sometimes avoid the necessity of making particular persons parties, by waiving all claim against them in his bill. But this cannot be done to the prejudice of the rights of others who are made defendants in the suit. It cannot, therefore, be done where it is necessary to take an account against the defendant, and where he has a right to have other persons interested in the taking of the account brought before the court, to save the necessity for a future litigation with them.56 A

52 Foster, Fed. Pr. (3d Ed.) § 57; Calvert, Parties (2d Ed.) c. 5, p. 70; Daws v. Benn, 1 Jac. & W. 513; Union Bank v. Stafford, 12 How. (U. S.) 327; New Orleans Canal & Banking Co. v. Stafford, 12 How. (U. S.) 343.

53 Yates v. Hambly, 2 Atk. 237; Foster, Fed. Pr. (3d Ed.) § 54; Calvert, Parties (2d Ed.) p. 61.

54 Foster, Fed. Pr. (3d Ed.) § 54; Yates v. Hambly, 2 Atk. 237.

55 Shainwald v. Davids, 69 Fed. 687; Union Bank v. Stafford, 12 How. (U. S.) 327; New Orleans Canal & Banking Co. v. Stafford, 12 How. (U. S.) 343; Leather Manufacturers' Bank v. Cooper, 120 U. S. 781. 56 Story, Eq. Pl§ 139; Dart v. Palmer, 1 Barb. Ch. (N. Y.) 92.