person who consents to the relief sought, when it is so stated in the bill, need not be joined as a defendant. If it appear to the court that a person who may be interested disclaims an interest in the controversy, he need not be made a party; but if the joinder of such person in either case is essential to the protec tion of the rights of other defendants, he must be joined.

§ 33. Doctrine of representation.

57

A limitation upon the general rule as to parties is expressed by the doctrine of representation. By some writers this is considered an exception to the general rule. It is said, however, that it is scarcely an exception, since the absent person is in fact in court, through his representative, by whom his interest is protected or his claim enforced.58 Under this doctrine, where it appears that a particular party, though not before the court in person, is so far represented by others that his interests receive actual and efficient protection, the decree may be held to be binding upon him.59 "Parties by representation are interested persons not named as parties in the suit, but deemed to be sufficiently represented, for certain purposes of the suit, by parties thereto holding special relations to them."60 The doctrine grows out of convenience or necessity in the administration of justice. Especially is it applicable where the persons not before the court are only possible parties, not in esse, and where the interests of all parties in being require a decree which will completely and finally dispose of the subject-matter of the litigation. Such possible parties cannot, as a matter of course, be brought before the court in person; and it would be highly in

57 Vattier v. Hinde, 7 Pet. (U. S.) 252; McConnell v. McConnell, 11 Vt. 290; Foster, Fed. Pr. (3d Ed.) § 55; Kilbourn v. Sunderland, 130 U. S. 505; Johnson v. Rankin, 3 Bibb (Ky.) 86.

58 Miller, Eq. Proc. 37, note 1; Foster, Fed. Pr. (3d Ed.) § 45; Cal vert, Parties, 20; Meux v. Maltby, 2 Swanst. 281.

59 Hale v. Hale, 146 Ill. 257, 33 N. E. 858; Phelps, Jur. Eq. § 30.

eo Miller, Eq. Proc. 30; Phelps, Jur. Eg. §§ 29, 30; Hale v. Hale, 146 III. 256, 33 N. E. 858.

61 Hale v. Hale, 146 Ill. 256, 33 N. E. 858; Miller, Eq. Proc. 37; Bowen v. Gent, 54 Md. 555; Calvert, Parties, 19, 64, 74.

(49)

62

convenient and unjust that the rights of all parties in being should be required to await the possible birth of new claimants until the possibility of such birth has become extinct. If persons in being are before the court who have the same interest, and are equally certain to bring forward the entire merits of the question, and thus give such interests effective protection, the dictates both of convenience and justice require that there should be a complete decree. Persons may be required as parties, either on account of something personal, as, for instance, having done certain acts of fraud or collusion, or, like officers of corporations, as possessing certain knowledge; or else because they are the owners or guardians of certain interests which the suit will affect. Upon grounds of the first nature, they must appear in their own persons. If the proceedings concern the individual responsible for the fraud, or possessed of certain information, they cannot be equally conducted in the presence of some other persons appearing in his behalf. On the other hand, if the general rule requires a person to be present merely as the owner and protector of a certain interest, then the proceeding may take place with equal prospect of justice, if that interest receives an effective protection from others. It is the interest which the court is considering, and the owner merely as the guardian of the interest. If, then, some other persons are present who, with reference to that interest, are equally certain to bring forward the entire merits of the question, the object is satisfied for which the presence of the actual owner would be required, and the court may, without putting any right in jeopardy, take its usual course, and make a complete decree.63

It is said in a recent work on equity procedure that the cases in which the doctrine of representation is applied may, for convenience, be considered in the following classes: (1) Where parties represent persons, not parties, in certain official capacities, as executors, administrators, and trustees in insolvency. (2) Where

62 Hale v. Hale, 146 Ill. 259, 33 N. E. 858; Faulkner v. Davis, 18 Grat. (Va.) 651; Bofil v. Fisher, 3 Rich. Eq. (S. C.) 1.

63 Hale v. Hale, 146 Ill. 258, 33 N. E. 858, citing Calvert, Parties, 19.

parties represent persons, not parties, by reason of their relation to them, otherwise than in an official capacity, as a life tenant representing a remainderman. (3) Where a trustee represents the beneficiaries. (4) Where a corporation represents its stockholders. (5) Where parties are assumed to represent persons not parties, by community of interest, as: (a) Complainants assumed to represent others, as in creditors' bills, or in suits to set aside fraudulent conveyances, or those brought by certain members of an incorporated association on behalf of all the members, or by some shareholder of a corporation on behalf of all of the shareholders, or a taxpayer on behalf of all other taxpayers; (b) defendants assumed to represent others, as in a suit against a numerous class.64

§ 34. Representation by trustees.

The general rule is that in suits respecting the trust property, brought either by or against the trustees, the cestuis que trust as well as the trustees are necessary parties. To this rule there are several exceptions. One of them is that where the suit is brought by the trustee to recover the trust property, and in no wise affects his relation with his cestuis que trust, it is unnecessary to make the latter parties.65 As the holder of bonds of a corporation, secured by a trust deed on its property, is represented as to such property by the trustees, and cannot maintain a suit for its protection in his own name, except on a showing that the trustees refused to bring it, he cannot join

64 Miller, Eq. Proc. 38. It will be noted that the last class of the cases, as stated by Mr. Miller, in which the doctrine of representation is applied, is the same as the second exception to the general rule herein before considered. See supra, §§ 21, 25-29. See, also, Hale v. Hale, 146 Ill. 257, 33 N. E. 858; Davis v. Peabody, 170 Mass. 397, 49 N. E. 750; Snow v. Wheeler, 113 Mass. 179.

65 Manson v. Duncanson, 166 U. S. 533; Carey v. Brown, 92 U. S. 172; Horsley v. Fawcett, 11 Beav. 569; Adams v. Bradley, 12 Mich. 346; Story v. Livingston, 13 Pet. (U. S.) 359; Chicago & Great Western Railroad Land Co. v. Peck, 112 Ill. 435; Stevens v. Bosch, 54 N. J. Eq. 59, 33 Atl. 293; Winslow v. Minnesota & P. R. Co., 4 Minn. 317 (Gil. 230), 77 Am. Dec. 519.

with the trustees in such suit.66 Where a trustee represents his beneficiaries in all things relating to the trust property, they are not necessary parties to a suit against him by a stranger to enforce the trust, or to one by a stranger against him to defeat it, in whole or in part. In such cases the beneficiaries, although not parties, are bound by the judgment, unless it is impeached by fraud or collusion between him and the adverse party. The principle which underlies this rule has always been applied in proceedings relating to railway mortgages, where a trustee holds the security for the benefit of bondholders. It is an old principle, long in use under analogous circumstances, and found to be well adapted to the protection of the rights of those interested in such security, without subjecting litigants to unnecessary inconvenience.67 Thus, where a trustee executed a written release of all errors concerning the decree, and waived his right as trustee to appeal from said decree in an action to foreclose a mortgage made by a railroad company to secure its bonds, in which said trustee was a party defendant as being the trustee in a second mortgage given by the company, it was held that such action bound all the stockholders represented by him as such trustee.68 Cases may arise in which it would be proper to have before the court the beneficiaries themselves, or some one other than the trustee to represent their interests. They then become proper parties, and may be brought in or not, as the court in the exercise of its judicial discretion may determine.69

$ 35. Executors and administrators.

The executor is the principal and necessary representative of the estate vested in him, and of all those interested in it. He sustains, in all cases, the person of the testator, to defend the

66 Consolidated Water Co. v. City of San Diego, 92 Fed. 759.

67 Manson v. Duncanson, 166 U. S. 533; Kerrison v. Stewart, 93 U. S. 155; Richter v. Jerome, 123 U. S. 233; Rogers v. Rogers, 3 Paige (N. Y.) 379; Wakeman v. Grover, 4 Paige (N. Y.) 34.

68 Elwell v. Fosdick, 134 U. S. 500.

69 Kerrison v. Stewart, 93 U. S. 155.

estate for him against creditors and legatees.70 In a suit for the construction of a will, the executor must be considered as the legal representative of the rest of the persons not yet in esse.71 While, in general, a judgment against executors or administrators with the will annexed is binding on legatees, yet it is not so binding when a suit is commenced or revived after the administrator's accounts have been settled, and all the property in their hands paid over to the legatees and trustees, under the will, pursuant to a decree of the proper court; for the trust is then practically terminated, the administrators are divested of all control over the property, and the privity between them and the legatees and trustees terminated.72

§ 36. Life tenants and remaindermen.

If several remainders are limited by the same deed, this creates a privity between the person in remainder and all those who come after him, and a verdict or judgment for or against the former may be given in evidence for or against any of the latter. There seems to be a conflict of opinion as to whether the same privity exists between a tenant for life and a reversioner, unless the latter has identified himself with the litigation out of which the judgment resulted, as by being made a party to the proceedings.73 According to the views entertained and expressed by Lord Redesdale, "it is sufficient to bring before the court the first tenant in tail in being, and, if there be no tenant in tail in being, the first person entitled to the inheritance, and, if no such person, then the tenant for life."74 The supreme court of Maryland entertains a different view,

TO MacArthur v. Scott, 113 U. S. 340; Peacock v. Monk, 1 Ves. Sr. 127; Dandridge v. Washington's Ex'rs, 2 Pet. (U. S.) 370; Cowen v. Adams, 78 Fed. 536; Ward v. Durham, 134 Ill. 195, 25 N. E. 745; First Baptist Church of Hoboken v. Syms, 51 N. J. Eq. 363, 28 Atl. 461. 71 MacArthur v. Scott, 113 U. S. 340; Lorillard v. Coster, 5 Paige (N. Y.) 172.

72 Carey v. Roosevelt, 81 Fed.' 608.

73 Freeman, Co.-Ten. & Partn. § 482.

74 Freeman, Co-Ten. & Partn. § 482, citing Giffard v. Hort, 1 Schoales & L. 407.