to make him a trustee, 21 W. Va. 656; but a person claiming under a prior agreement is a proper party, Pomeroy Rem. ? 263; 1 H. & M. 176; and one having acquired an interest in the subject matter after the making of the contract under the vendor and with notice of the vendee's rights, 13 Sim. 206. Purchasers of separate tracts can not unite in an action against the vendor, but if there is one contract of sale to several persons covering the land, although it may have stipulated for different shares, the purchasers may unite, 24 Cal. 171, 177; see 28 5797-5802.

Sureties. Where several sureties pay the debt of their principal, and there is no evidence of a partnership or joint interest, or of payment from a joint fund, the presumption is that each paid his proportion, and a several action will lie for its recovery from the principal, 14 Me. 223; 20 N. H. 418; but if several sureties pay the debt of their principal from joint funds, they may join in an action for reimbursement, 18 Hun 141; 14 Pick. 287; and, it is held, if the judgment is joint against the sureties, all must join in an action against the principal, 2 O. 209 (1825). Where sureties pay the whole debt jointly they may join in an action against those who did not pay, for contribution, 23 Vt. 593; and if one of the paying sureties has died, his executor may be joined as one of the plaintiffs, 50 Cal. 456.

Tax-payers. Several owners of separate lots may unite to enjoin the collection of an illegal assessment or tax, 38 O. S. 314; 23 O. S. 605; 24 O. S. 232; or one may sue on behalf of all similarly situated, 5 0. S. 364; 38 O. S. 314; but not when the persons for whom suit is brought are divisible into classes whose rights and liabilities are not necessarily the same, 29 O. S. 500, 508. It has been held that several persons can not so unite, though similarly situated, 10 O. 235; 5 Blatchf. 259. In Kansas a distinction is drawn as to the right of action when the tax is wholly illegal, when any number can unite to enjoin its collection, 10 Kas. 326, 491, 509; and where it is valid and becomes illegal only in its application, when each person severally interested must sue alone, 12 Kas. 140, 146, 147; see 29 Kas. 364. In Iowa it is held that they can not unite to restrain the collection of an illegal tax, nor can one sue on behalf of others similarly situated, but each must sue alone, 36 Ia. 413, 416-420; and in Wisconsin it has been held that they can, 21 Wis. 516, and can not join in such action, 18 Wis. 566; 19 Wis. 93.

Tenants in common may join in an action for rent where they unite in renting the property, 42 O. S. 190; and where they are married women owning their shares as separate property their husbands need not be joined, Id.; must join in personal actions for injuries to the estate, 37 N. Y. 372; but if the share of one tenant in common is separable from that of the others, he may sue for the conversion of his share, 77 N. Y. 158. It is held that they are not required to join in an action for possession, 16 S. C. 220; nor in an action to set aside deeds severally made by them, 28 Kas. 174. Under the New York statute they may sue jointly or separately in ejectment, 41 N. Y. 219, where such an action might be maintained by all, Code Civ. Pro. 1500. Ejectment lies by one excluded from possession by the other, 2 O. 110; 19 0.218; or against a stranger, W. 330. Mortgagors, tenants in common, can not sue the mortgagee separately for their share of the proceeds at a foreclosure sale after satisfaction of the debt, S. C. R. I. 8 Atl. Rep. 697.

Trespass. Tenants in common should join in trespass, 13 Johns. 287; one may sue alone as against a stranger, 42 Vt. 679. Trustees may maintain trespass when the legal title is in them, 26 Me. 512. Where a will leaves real estate to a widow and heirs in certain proportions, the heirs may maintain the action without joining the widow, 2 Clev. Rep. 81.

Trust. Generally, in actions by trustees, the beneficiaries must join as plaintiffs or defendants, Pomeroy Rem. 260; see 5 Rec. 285; 1 Bull 300; but in actions by trustees of an express trust, 24995, and in suits between the trustees themselves, brought by one to compel the other to account and restore the trust property misappropriated by him, the beneficiaries need not be made parties, Story Eq. Pl. 213. If the cestuis que trustent have concurred in the breach, they must be joined in a suit brought by one trustee against his co-trustee, Pomeroy Rem. 260. Where a trustee sues merely to recover possession of the trust property from a third party the cestui que trust is not a necessary party to the suit, 22 Fed. Rep. 13; but where a bill filed by trustees seeks the sale of real estate vested in them in trust, and they have not a present absolute power of disposition over their estate, according to the terms of the trust, their cestuis que trustent are necessary parties, 39 N. J. Eq. 545. Several trustees must unite in actions brought by them, 33 How. Pr. 145; and if one of several trustees refuses to join, his co-trustees may maintain the action, making him a party defendant, 78 N. Y. 224. When an estate is conveyed to trustees jointly a right of survivorship exists, and suit may be maintained in the name of the survivor, 54 Miss. 117. Upon the death of a trustee pending suit, the action may be revived in the name of his executor, 14 Ala. 707.

? 5006. Joinder of defendants. 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 to a complete determination or settlement of a question involved therein. [51 v. 57, 2 35; S. & C. 955.]

Account. Creditors may be joined with the heir in an action against an administrator for an account, 1 D. 497. In an action for an account a judgment creditor of plaintiff is a necessary party when the answer sets up that he has garnished the claim, 34 O. S. 294.

Agent. The principal can not have a joint claim against agent and persons contracting through him, 1 D. 156, 158. A sub-agent of an insurance company must join the agent with the company as defendants in an action for his part of the commissions, 27 O. S. 393.

Animals. A joint action will not lie against the owners of a herd of cattle for trespasses committed by such stock where each person owns a several and distinct portion, 46 Ia. 45; but separate owners of animals may be sued jointly for trespasses committed by them when kept in common, 25 O. S. 255, and under the joint control of all the owners, 70 III. 292, and several owners of dogs may be sued jointly in an action for injury to sheep, 24 O. S. 333 (S. & S. 10); see 1 W. L. M. 198, 389. Under the present statute they are, jointly and severally, liable for killing, worrying or injuring sheep, 2 4213; see 22 4206, 4250, 4251.

Assignment for creditors. In an action by attaching creditors

of a firm against an assignee for the benefit of creditors, partnership creditors are not necessary parties, 29 O. S. 441. Where one of the makers of a joint note has assigned for the benefit of creditors, the remaining solvent parties need not be joined in an action against the assignee to compel an allowance of the notes, 2 Bull 246.

Assignor. In an action by the assignee of a judgment to subject equities of the debtor, the assignor who is indebted to defendant is a necessary party, 24 O. S. 204; and an assignor is a necessary party when unliquidated damages on a contract are set off by the assignee, 3 W. L. M. 151; in a suit to quiet title where the assignments are conflicting, 3 W. L. M. 593; in an action by an assignee of an insurance policy for reformation and enforcement, 2 Bull 223; and an assignor of a nonnegotiable note was formerly a necessary party in an action by the assignee, 2 W. L. M. 420; and an assignor was a necessary party in an action on a mortgage, but non-joinder was waived if not objected to, 2 W. L. M. 543; but see mortgage, 8 O. S. 2; 20 O. 474. An assignor of an account as collateral security is not a necessary party to a suit brought against the debtor by the assignee, 11 O. S. 374, 377, 378; but an assignor of part of a claim is a necessary party, 13 O. S. 495, 501; and in an action by the assignee of the right to commissions on renewals conveyed by the agent of an insurance company, the assignor is a necessary party, 27 O. S. 393, 396.

Attachment. In an action by plaintiff in attachment against a garnishee to recover money due from him to the defendant in attachment, the latter, who claims to have selected and to hold the same exempt from being applied to the payment of the plaintiff's claim, is a proper party to the action, 36 O. S. 545. A subsequent attaching creditor is not a proper party to an action by a prior attaching creditor, on the ground of interest acquired by levy of attachment on the same property, 9 O. S. 388; 12 O. S. 158. A garnishee in an action before a justice of the peace who is summoned to answer is not a party, 39 O. S. 218. Mortgagee is not a proper party where equity of redemption is attached, 33 0. S. 254. Defendant's wife not, 20 Bull 471.

Attorney against whom no fraud is charged or relief sought should not be joined in a proceeding to restrain the enforcement of a judgment for fraud, 2 Kelly, 325; but should be joined if charged with being a party to the fraud, 17 Cal. 467.

Bills and notes. Joint makers should be sued jointly, Pomeroy Rem. 277. Those severally liable upon the same instrument may be included in the same action at the option of the plaintiff, 50. S. 586; 25009. A guarantor (payee) and maker may be sued jointly, 26 O. S. 330, and the survivor and personal representative of a deceased jointmaker may be joined in the same action, 6102; 50. S. 586; but where one of the makers of a joint note has assigned for the benefit of creditors the remaining solvent parties need not be joined with the assignee, 2 Bull 246; 6 Rec. 284.

Bond. The action must be joint against all the obligors of a bond of a justice of the peace, 23 O. S. 543. An executor may be joined with a surviving obligor in an action on an administrator's bond, 1 D. 488; but in an action against the surviving obligors of a joint and several official bond the personal representatives of the deceased principal are not necessary parties, 25 O. S. 620. A devisee and executor may be joined in an action on

a bond of a deceased surety 27 O. S. 398. In an action on an executor's bond under ? 6215 the heirs, legatees, devisees, widow, or next of kin, or others who may be liable on account of assets coming into their hands, may be made defendants. In an action on a bond given by a partner to a retiring partner to pay firm debts, firm creditors may be joined as defendants, 9 O. S. 467.

Contractor. Joint contractors must be joined, 5 0.514; 23 O. S. 543. In an action against a city for damages caused by the construction of a sewer, the contractor can not be joined with the city, 2 C. S. C. R. 158. In an action against the authorities of a city to restrain them from giving a contract to one not the lowest bidder, neither the contractor nor bidders are proper parties, 32 Barb. 37.

Debtor and creditor. Creditors are not necessary parties when represented by an assignee for the benefit of creditors, 29 O. S. 441. A judgment creditor is a necessary party where the answer sets up that he has garnished the claim, 34 O. S. 294. Debtors of defendant can not be joined in an action to recover a judgment against him, 1 H. 281.

Dower. Several separate owners can not be joined, 10 O. 127; 8 O. 418.

Ejectment. All persons in possession may be joined as defendants, 2 Met. (Ky.) 288; but if they occupy different parts of the same premises, 43 Barb. 261, or claim several and distinct parcels, 24 How. 277, they can not be joined, contra 2 Met. (Ky.) 288. If the persons in possession are mere trespassers, the plaintiff will not be forced to bring separate actions, 24 How. 277. A landlord of defendant is not a necessary, but proper, party, 24 O. S. 416. An inchoate right of dower is not such an interest as requires the joinder of the wife as co-defendant with the husband, 38 Barb. 25.

Executors and administrators are necessary parties in an action to enforce the payment of a claim against an estate, 45 Cal. 491; to charge real estate of decedent in the hands of heirs with the payment of debts. 5 0.555; to subject assets devised for the payment of debts, 2 Duval 123; when a bill is filed for an account of the personal assets of decedent, 60 Barb. 372; to recover a legacy or distributive share of the estate, 2 Murph 336; (and the action may be brought against an executor, without joining his co-executor, when he has in his hands the balance remaining for distribution, 20 O. 310;) in an action for a pension, 11 O. S. 214; when charged with assets, or fraud or collusion is charged between executors, 1 Green Ch. 74; when the fund sought to be distributed is in the hands of adverse claimants and the bill is filed for its recovery and distribution, 37 Ala. 93. The administrator and heirs of a deceased mortgagor should be joined as defendants in a bill to redeem, 8 O. 44; in specific performance against heirs on their ancestor's contract to convey lands, when damages are sought, 8 O. 377. An administrator of a minor receiving payment of a judgment obtained by the guardian is a necessary party to enjoin its collection, W. 390; see Bond.

Gaming. Players and owners of premises can not be joined in an action to recover money lost at gaming, 2 C. S. C. R. 12; and separate owners can not be joined, 6 Bull 636.

Guarantor. In this state a guarantor and principal debtor may be sued in one action, 26 O. S. 330; 31 O. S. 15; 16 0.1; 18 0.336; 17 0.123; 5 W. L. M. 187; but this is not the rule generally else

where, 11 How. Pr. 218; 15 Ind. 144; 67 Mo. 324; 13 Wis. 670; Pomeroy Rem. ? 409; with some exceptions, 30 Ja. 414; 11 Ia. 371; 24 Ia. 334. A guarantor (payee) of a note may be sued jointly with the maker, 26 O. S. 330; and a guarantor of a subscription may be joined with the subscriber in an action on it, 31 O. S. 15; see Id. 41. Where a guaranty of payment of a debt was made by husband and a wife having a separate estate, the wife and husband's administrator, but not the husband's heirs, were held proper parties defendant in an action on it, 6 Bull 288.

Heirs should be joined with administrator in bill to redeem, 8 O. 44 (1837), and in foreclosure, 1 D. 36; must be parties in administrator's sale, 12 O. 253 (1833); in specific performance when damages are sought, 8 O. 377. They are not necessary defendants in action by the executor for sale of premises for unpaid purchase money, 30 O. S. 491, 501; and when lands are directed by will to be sold and converted into money, the executor, and not the heir, is a necessary party to a suit concerning the disposition and charges on such estate, 83 N. C. 569. A joint action against several heirs, or devisees, can not be sustained under the act of 1831 when there is no joint contract either express or implied, 15 O. 338. In suits relating to the homestead, brought by the widow, the heir is a proper party, 43 Mich. 582.

Landlord and tenant. A lessee and one who guarantees the payment of the rent in the same instrument may be sued jointly in the same action, 23 N. Y. 286; 11 Ia. 323. Several tenants in common possession of stock may be jointly sued for trespasses committed by such stock, though the animals are owned by them separately, 25 O. S. 256.

Legatee necessary party to a bill to set aside a will, 35 O. S. 642. All legatees are necessary parties in a suit by one claiming as residuary legatee, 4 Johns. Ch. 202; but not in a suit to recover a specific legacy, Id. When the question arises as to the lapse of a legacy, a residuary legatee should be made a party, and a debtor legatee when the question arises as to whether or not his debt was discharged by the gift of the legacy, 27 N. J. Eq. 136. Assignors of a legacy who have disposed of all their interest are not necessary parties to a suit by an assignee, 2 Green Ch. 53. When decedent holding funds in trust specifically bequeaths them, the legatee is not a necessary party to a suit for their recovery brought against the executor, 14 Wis. 238.

Liquor laws. Two or more persons jointly selling liquor under the act 1854, are jointly or severally liable, 26 O. S. 48; and two or more persons severally selling liquor are jointly liable, 40 O. S. 43. The act of 1854 amended, 67 v. 102, provides that "a wife... who shall be injured . . . in means of support. in consequence of the intoxication, or otherwise of any person, shall have a right of action in her name, severally or jointly, against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication in whole or in part."

Master and servant can not be sued jointly, 8 O. S. 359; 2 C. S. C. R. 158; 7 O. S. 226; unless the work is in itself unlawful or necessarily injurious to third persons, 1 D. 327, 330; 34 O. S. 638; 8 O. S. 359.

Mechanic's lien. The owner is the only necessary party defendant, 25 N. J. Eq. 292; see 1 C. C. R. 30. Subsequent incumbrancers are proper parties, 43 Md. 134; a contractor, 50 Mo. 159;