proposition, who must also be brought before the court and made parties to the controversy either as coplaintiffs or as codefendants. Equity is satisfied in most instances by making them codefendants, and they are generally so treated in actual practice, unless their interests are so identical with those of the plaintiff that they must participate in the substantial relief awarded by the decree. The special subject of our present inquiry may therefore be stated thus: In what cases and under what circumstances are such persons primarily and naturally to be associated as coplaintiffs rather than as codefendants? The answer to this question embodies the principle in its most general form which equity courts have applied in all species of actions to determine the proper joinder of plaintiffs. All those persons whose rights and interests in the subject-matter, and in the relief demanded, are concurrent with the plaintiffs, must be made parties, and naturally will be made coplaintiffs, although it is sufficient in most instances if they are brought into the cause as codefendants. The principle in this very general form is too vague to be of any value as a practical rule, and I shall therefore take up in order the most important classes of cases in which it is applied.

§ 250. The first of the subordinate general principles into which the foregoing vague doctrine may be subdivided, is the following: When the actual plaintiff, as above described, has only an equitable estate, interest, or primary right in the subjectmatter of the suit, the person who holds the legal estate, interest, or right therein, should be made a party, and primarily a coplaintiff; for, without such joinder the defendant might be subjected to another litigation from this legal owner or holder of the legal title, a result which equity strives in every way to prevent. One of the most familiar as well as important illustrations of this general principle is the rule which prevails in suits relating to trust property. When property is held in trust, and an action concerning it is brought by the beneficiary or person claiming under the trust, the trustee, or one in whom the legal title is vested, must be made a coplaintiff.2 As, for example, when a mortgage has been given to a trustee in trust for certain bene

1 1 Daniell's,

p. 192.

21 Daniell's, p. 193. See Western R. R. v. Nolan, 48 N. Y. 513; Malin v. Malin, 2 Johns. Ch. 238; Fish v. How

land, 1 Paige, 20; Cassiday v. McDaniel, 8 B. Mon. 519; Covington, &c. R. R. v. Bowlier's Heirs, 9 Bush. 468.

ficiaries, the trustee and the beneficiaries must unite in a suit to foreclose. The principle applies to all cases where the legal title to sue stands in one, and the beneficial interest in the subject and in the result is held by another; both must unite as plaintiffs. Thus, if a covenant is made with a trustee for the benefit of a cestui que trust, both must join in an action to compel a specific performance. The case of a simple contract, made by an agent, when the agency appears on the face of the agreement, or can be easily established by extrinsic evidence, does not fall within the operation of this rule, for the principal can sue alone and prove the agency if it is disputed. If, however, the agency does not appear in the contract itself, and the principal or person for whom the agreement is made cannot prove it with ease and certainty, then the agent may be made a party so as to bind his interest. When an agent acts in any transaction on his own account as well as on account of his principal, so that he has a beneficial interest in the subject-matter, he must be made a coplaintiff with his principal.*

§ 251. The case of suits brought by the assignees of things in action is another special example of this general principle. Where a legal thing in action had been assigned, the assignee was permitted to sue in equity for its enforcement in his own name, but the assignor, or his personal representative if he was dead, was an indispensable party, if not as a coplaintiff, then as a defendant; otherwise the debtor might be subjected to a second action at law in the name of the assignor.5 This particular rule, however, as has been shown in the preceding sections of the present chapter, has been entirely abrogated in most of the States that

1 Story Eq. Pl., §§ 201, 209; Wood v. Williams, 4 Mad. 186; Hichens v. Kelly, 2 Sm. & G. 264.

2 Story Eq. Pl., § 209; Cope v. Parry, 2 Jac. & Walk. 538. See McCotter v. Lawrence, 6 N. Y. Sup. Ct. 392, 395.

3 1 Daniell's, p. 196; Botsford v. Burr, 2 Johns. Ch. 409; Bartlett v. Pickersgill, 1 Cox, 15. It should be remembered that when a contract is made by an agent in his own name, expressly for the benefit of another, he is, according to the codes, a trustee of an express trust, and may sue upon it in his own name, without joining the beneficiary as a party. To this extent the new procedure has modified the rule

which prevailed in equity, and which required that both persons should join in bringing the action.

4 Small v. Attwood, 1 Younge, 407. 5 1 Daniell's, pp. 197-200, and cases there cited. Where an equitable thing in action, or an equitable interest, was assigned, the assignee could sue alone, since there was no possible danger of an action at law by the assignor. Padwick v. Platt, 11 Beav. 503; Bagshaw v. Eastern Union R. Co., 7 Hare, 114; Blake v. Jones, 3 Anst. 651. There is no difference, under the codes generally, between the assignment of a legal and of an equitable thing in action in respect to the parties.

have adopted the new procedure, since their codes expressly permit the assignee to sue alone without joining the assignor either as a coplaintiff or as a defendant; but it is substantially retained by the codes of Kentucky and of Indiana.

§ 252. In ordinary suits for the administration of the estates of deceased persons brought by creditors, legatees, or distributees, a general personal representative of the estate-an administrator or executor is indispensable, and is a necessary party, and should properly be made a coplaintiff, although he may be put with the defendants.1 These ordinary administration suits, which are the common means in England of winding up and settling the estates of decedents, are practically unknown in this country. It is only under some exceptional circumstances that the equity jurisdiction is with us invoked, not to supersede the action of the probate courts, but to aid it, when if left to itself it would fail to afford complete relief and to do complete justice. Whenever such exceptional circumstances exist, and by reason of fraud, collusion, or other similar cause on the part of the executor or administrator, a creditor, or legatee, or distributee of an estate, may and does bring an action on behalf of the estate, even in such a case the personal representative - the administrator or executor is a necessary party; if he is not united as a coplaintiff, he must be added as a defendant.2

1 1 Daniell's, p. 201; Penny v. Watts, 2 Phil. 149, 153; Donald v. Bather, 16 Beav. 26; Croft v. Waterton, 13 Sim. 653.

2 Attorney-General v. Wynne, Mos. 126; Wilson v. Moore, 1 My. & K. 126, 142; Saunders v. Druce, 3 Drew. 140. As examples of such actions, see Fisher v. Hubbell, 7 Lans. 481; 65 Barb. 74; 1 N. Y. Sup. Ct. 97; in which the same person was executor of the estates of A. and of B., and the plaintiffs, legatees of A., had claims which placed them in the position of creditors to the estate of B.; and Lancaster v. Gould, 46 Ind. 397, which was an action by legatees and next of kin, against a creditor of the estate and the executor, to set aside a fraudulent allowance and payment of a claim made by the executor to the creditor; and Stronach v. Stronach, 20 Wisc. 129, 133. An administrator having fraudulently assigned and

transferred certain personal property belonging to the estate to a person who was a participant in the fraud, the children of the intestate, who were his only next of kin, united in an action against the administrator and his assignee to set aside the transfer, and for a delivery up of the property to the plaintiffs by the assignee, or for an account of its value and the profits resulting from its use. The action was held to be properly brought. Downer J. said (p. 133): “The administrator cannot avoid his own sale, though he was guilty of fraud in making it. If he dies, or is removed, and an administrator de bonis non is appointed, the latter cannot avoid the wrongful sale by the first administrator. This is the rule, except where there are statutory provisions authorizing the administrator de bonis non to do what otherwise the creditors, legatees, or distributees alone could do. . . . Cred

§ 253. In all the foregoing instances the rule has been applied to the holders of a legal and of an equitable estate or interest in the subject-matter; it extends also to all persons having legal demands against the defendant arising out of the same subjectmatter or event. Thus, where a lease has been assigned by the lessee, both the lessor and the lessee may each sue the assignee at law for a breach by him of the covenants. In equity, however, neither is permitted to sue the assignee without joining the other also, so that the defendant cannot be subjected to a double action and recovery.1

§ 254. In the class of cases thus far examined, either an equitable right existed in one person and a legal right in another, or a legal right was held by all. The same principle extends to the very numerous class of cases in which the rights against the defendant arising from the same subject-matter or event are all equitable. Whenever, therefore, in addition to the plaintiff who actually institutes the action, there are other persons having concurrent equitable rights against the defendant growing out of the same subject-matter, they should in general be made parties to the action, primarily no doubt as coplaintiffs, but, if not, then as defendants. The doctrine thus stated in general terms has a very wide application, and upon it are based a very large portion of the special rules as to parties which prevail in equity. It includes not only those who have concurrent rights in the whole subject-matter of the suit, but those also who have similar rights in a part of it, such as joint tenants, who must all be parties in an action concerning the property.2 In a suit by joint tenants or tenants in common for a partition, all must be before the court; but it is not necessary of course that all should be plaintiffs.3

itors, legatees, and distributees are the persons who have a right to bring a suit in such a case. As there are no creditors or legatees, the suit was rightfully brought by the next of kin. If the widow is one of the distributees, she ought to be a party." See also Hills v. Sherwood, 48 Cal. 386, 392; Haynes v. Harris, 33 Iowa, 516, 518–

520.

v. Haycock, 2 Ch. Cas. 124; Weston v. Keighley, Finch, 82; Stafford v. City of London, 1 P. Wms. 428; 1 Stra. 95. Where there are two or more trustees, they must all unite, since their interest is strictly joint. Thatcher v. Candee, 33 How. Pr. 145 (N. Y. Ct. of App.).

3 Anon., 3 Swanst. 139; Brashear v. Macey, 3 J. J. Marsh. 93; Braker v. Devereaux, 8 Paige, 513; Borah v. Archers, 7 Dana, 176; Cornish v. Gest, 2 Cox, 27. In partition by a tenant in common, his wife is not a necessary coplaintiff; she 21 Daniell's, pp. 207, 208; Haycock should be made a party to the action, but

11 Daniell's, pp. 206, 207; Sainstry v. Grammer, 2 Eq. Cas. Abr. 165; City of London v. Richmond, 2 Vern. 421; 1 Bro. P. C. 516.

There have been relaxations of this general rule. An action by three out of forty-seven tenants in common, brought to restrain the defendants from quarrying stone upon the land which was owned in common by the whole number, has been sustained, notwithstanding an objection on the ground of the non-joinder was interposed. And where one tenant in common had leased his share for a long period of years, the lessee was permitted to maintain a partition against the other tenants in common, without making the reversioner of his own share the lessor — a party.2 And generally a tenant for life may institute a partition without bringing in the remainder-men. When land is held by tenants in common for life, or when there are future contingent interests. which may finally vest in persons not yet in being, a partition may be had between those who possess the present estates; but it will only be binding upon the parties who are before the court and those who are virtually represented by such parties. In an action brought to determine boundaries, all persons interested, whether their estates are present or future, remainder-men and reversioners, must be parties, although of course all need not be plaintiffs. It is not necessary, as a general rule, to make the actual occupying tenants or lessees parties in suits relating to real property. They must, however, be parties in special cases where they are directly interested and their concurrence is necessary; as, for example, in a partition suit where a tenant in common has leased his share, and in a suit brought to restrain an ejectment which was instituted against the tenants themselves instead of against their lessor. If, on the other hand, lessees, or any persons holding limited interests, sue to establish some general right, that is, some right belonging to or affecting the whole estate and not merely their own temporary possession and user,

rather as a defendant than as a plaintiff. Rosekrans v. White, 7 Lans. 486. The administrator of a deceased tenant in common may, under certain circumstances, be a proper party, together with his heirs, in a partition. Scott v. Guernsey, 60 Barb. 163, 181.

Ackroyd v. Briggs, 14 W. R. 25. 2 Baring v. Nash, 1 Ves. & B. 551; Heaton v. Dearden, 16 Beav. 147.

Wills v. Slade, 6 Ves. 498; Brassey v.

Chalmers, 4 DeG., M. & G. 528.

140; Striker v. Mott, 2 Paige, 387, 389; Woodworth v. Campbell, 5 Paige, 518; Gaskell v. Gaskell, 6 Sim. 643.

5 1 Daniell's, p. 209; Story Eq. Pl. § 165; Bayley v. Best, 1 Russ. & My. 659; Miller v. Warmington, 1 Jac. & Walk. 484; Speer v. Crawter, 2 Meriv. 410; Attorney-General v. Stephens, 1 K. & J. 724; 6 DeG., M. & G. 111; Pope v. Melone, 2 A. K. Marsh. 239.

61 Daniell's, p. 209; Story Eq. Pl. § 151; Lawley v. Walden, 3 Swanst. 142;

4 Wotten v. Copeland, 7 Johns. Ch. Poole v. Marsh, 8 Sim. 528.