recognizing its existence and validity, and seeking to carry out its terms and provisions, all the persons interested must be parties; all the beneficiaries must therefore unite in an action against the trustee brought to obtain an accounting, and a winding up and settlement of the estate, or, in technical phraseology, an action brought to administer the trust. While the beneficiaries as a class must all unite, either actually or through a representative plaintiff, in actions based upon the trust as existing, and brought to administer it, one person who would be a beneficiary may, without joining any others, maintain a suit which is based upon a denial of the trust and seeks to overthrow it, and to set aside the instruments which created it, and the acts of the trustee done under it. Thus, for example, any judgment creditor may bring an action in his own name to set aside an assignment in trust for himself and the other creditors.2

§ 269. From the cases of creditors and cestuis que trustent, in respect of whom the rule is well settled, I now pass to other classes of persons having distinct, though not conflicting interests and claims, and I collect a number of decisions which show the tendency of the courts in dealing with them. Owners of entirely distinct and separate parcels of land, although no community of right or interest existed among them, have been permitted to unite in equitable actions based upon their individual separate

De la Vergne v. Evertson, 1 Paige, 181; Greene v. Sisson, 2 Curtis, 171; Hawkins v. Craig, 1 B. Mon. 27; Elam v. Garrard, 25 Geo. 557; High v. Worley, 32 Ala. 709; Gould v. Hayes, 19 Ala. 438; Keeler v. Keeler, 3 Stockt. 458; Case v. Carroll, 85 N. Y. 385; Sortore v. Scott, 6 Lans. 271, 275; Munch v. Cockerell, 8 Sim. 219, 231. See French v. Gifford, 30 Iowa, 148, 158, 159.

2 In Hubbell v. Medbury, 53 N. Y. 98, where an assignment had been made for the benefit of creditors, a cestui que trust under it and the assignor brought an action to set aside a wrongful purchase of the trust property by the assignee; the action was sustained, and it was held that a substituted trustee as the plaintiff was unnecessary. When a trustee is guilty of misconduct in his trust, by misapplying the assets, or converting the same to his own use, a single cestui que trust is per

mitted by a special statute, in Minnesota, to maintain an action for an account, and to enforce the trust, and to remove the trustee. This statute is general in its terms, and applies to all trustees and trusts. "Upon petition or bill of any person interested in the execution of an express trust, the Court of Chancery may remove any trustee who shall have violated, or threatened to violate, his trust." Compiled Stat. of Minn., p. 384, § 26; Goncelier v. Foret, 4 Minn. 13. See French v. Gifford, 30 Iowa, 148, 158, 159. In the case of a charitable trust, any beneficiary having an interest in the use or in the subject of the gift, has an unquestionable right to institute a proceeding in equity for the purpose of securing a faithful execution of the beneficent object of the founder of the charity. Baptist Church v. Presbyterian Church, 18 B. Mon. 635, 641.

property, simply because the wrong to be remedied or prevented was a single act, and affected all of them and all of their lands in the same manner. Thus, owners of separate tenements have been allowed to join in an action brought to restrain and remove a nuisance which was common to all. Two or more owners of separate lots assessed for a local street improvement, when the assessment is claimed for the same reason to be invalid as to all, may unite in an action to restrain the collection; and when the number of such owners is great, one may sue as a representative for all the others. Also a number of proprietors of adjacent and separate lots fronting on a street through which a railroad was laid. out, were permitted to join in a suit for the purpose of preventing the company from constructing its track in such a manner as to interfere with access to all of their several lots alike.3 The question as to the joinder of plaintiffs who own distinct parcels of land, or who are clothed with distinct primary rights of the same kind, which are all interfered with and affected in the same manner by a common wrong, has frequently arisen in actions brought by tax-payers and freeholders to prevent or set aside some proceeding done under the forms of public authority, and which is designed to create and impose a public burden, such as a tax for

1 Peck v. Elder, 3 Sandf. 126. But six owners of distinct tracts of land through which a stream ran were not permitted to join in an action to restrain another riparian owner from diverting the water. Schultz v. Winter, 7 Nev. 130. See, per contra, Foot v. Bronson, 4 Lans. 47, 52, in which such a union of different owners was held proper; citing Reid v. Gifford, Hopk. 416; Murray v. Hay, 1 Barb. Ch. 59; Brady v. Weeks, 3 Barb. 157.

2 Upington v. Oviatt, 24 Ohio St. 232, 247; Glenn . Waddell, 23 Ohio St. 605.

Tate v. Ohio & Miss. R. R., 10 Ind. 174. The company had raised an embankment and trestle-work in such a manner as to cut off access to the lots owned by the eleven plaintiffs. The prayer was that the company be compelled to change or to remove its structure. On demurrer by the defendant, the court, per Davison J., said: “The only question is, had the plaintiffs a right to join in the action?" Quoting the provisions of the code in relation to parties, he declares that they

substantially re-enact the equity rule, and adds: "All who are united in interest must join in the suit, unless they are so numerous as to render it impracticable to bring them all before the court; while those who have only a common or general interest in the controversy may, one or more of them, institute an action. This, however, must not be understood as allowing in all cases two or more persons having separate causes of action against the same defendant, though arising out of the same transaction, to unite and pursue their remedies in one action. Several plaintiffs in one complaint cannot demand several matters of relief which are plainly distinct and unconnected. But when one general right is claimed, when there is one common interest among the plaintiff's centring in the point in issue in the cause, the objection of improper parties cannot be maintained. . . . These plaintiffs, though not united in interest with each other, claim one general right to be relieved from a nuisance which alike affects all of them."

special objects, an assessment for some local improvement, a municipal bonding in aid of some quasi public enterprise, and numerous other like proceedings which create a public or municipal debt. Such actions are permitted, and are freely used in most of the States, although not allowed in New York and a few others. Where suits of this character are sustained by the courts, the question has arisen, whether two or more tax-payers having distinct freeholds, or distinct pieces of property subject to the burden, and who have no connection except in the common wrong and in the like relief demanded by all, may unite in the action, or whether one may sue on behalf of all, or finally, whether each must bring a separate suit to free his own property from the wrongful incumbrance. It would seem, upon the principle of the decision last quoted, that such a joinder was not only proper, but was in every way expedient; but the cases have not been unanimous upon the point, and some of them have distinctly pronounced against a joint proceeding. In Wisconsin, where a number of freeholders, owning distinct lots of land, and having no connection except that they were all residents of the municipality, and whose personal property had been levied upon for the tax, and advertised for sale, united in an action to set aside the entire proceedings of the local authorities, and to procure the tax and all steps taken in relation to it to be declared void, and to restrain the sale of their property, it was held that these plaintiffs could not join in a suit merely to prevent the sale of their property because their interests were entirely several; but that they could unite in an action to avoid and set aside the proceedings of the municipal authorities, and that the court having thus acquired jurisdiction, could go on and administer complete relief.1 In another case, two plaintiffs owning distinct lots in severalty, and suing on behalf of all other tax-payers of the city, brought an action to set aside a local assessment and tax made and levied by the city authorities, and to restrain the sale of their lots. It was held that they could not maintain the joint action. The court said, if the tax was illegal there was an apparent cloud upon each lot, and each plaintiff was interested only in removing this cloud from his own land; each and all might be interested in the legal question involved in the suit; for if one had a right to remove the

1 Peck v. School District No. 4, 21 Wisc. 516.

cloud and to enjoin the assessment as illegal, for the same reasons and upon the same evidence, each of the others might obtain relief; but there was no such common pecuniary interest as authorized them to unite in one suit and obtain the relief demanded; each could sue alone, and the others were not necessary parties; this was not an action respecting a common fund, nor to assert a common right, nor to restrain acts injurious to property in which all the plaintiffs had a common interest. In Ohio, two or more owners of separate lots assessed for a local improvement may unite in an action to restrain the enforcement and collection, when the tax is claimed for the same reason to be invalid as to all. In Kansas a distinction is made depending upon the nature of the tax itself. If the tax is wholly illegal, that is, illegal as applied to all persons and property, as, for example, a tax to pay the interest on illegal bonds, -any number of taxpayers may unite in the action.3 If, however, the tax is valid as a tax, as, for example, the ordinary county or State tax, and becomes illegal for some cause only as it applies to certain persons or property, then each person severally interested as the owner of distinct and separate lots of land must sue alone; there can be no joinder by tax-payers who have no common property.4 In Iowa it has been recently held that tax-payers owning separate property cannot unite, nor can one sue on behalf of all others similarly situated, in an action to restrain the enforcement and collection of an illegal tax, but each must bring an action for himself.5

$270. A few other miscellaneous eases of distinct interests may be mentioned. When several persons have simultaneous but entirely separate mechanic's liens upon the premises of the same person for work done and materials furnished by them, they cannot all, nor can any two or more of them unite in an action brought to enforce and foreclose such liens under the statute. Under the

1 Barnes v. City of Beloit, 19 Wisc. 93, 94, per Downer J. It is impossible to reconcile the reasoning in these two cases, nor the conclusions which they reach. See also Newcomb v. Horton, 18 Wisc. 566, which maintains the same doctrine as Barnes v. Beloit.

2 Upington v. Oviatt, 24 Ohio St. 232, 247; Glenn v. Waddell, 23 Ohio St. 605. Bridge Co. v. Wyandotte, 10 Kans.

326; Gilmore v. Norton, 10 Kans. 491; Gilmore v. Fox, 10 Kans. 509.

4 Hudson v. Commissioners, &c., 12 Kans. 140, 146, 147.

5 Fleming v. Mersbon, 36 Iowa, 413, 416-420. The question was carefully examined with a reference to numerous decisions of equity courts. Cole J. dissented in a very able opinion containing a review of all the authorities, pp. 421-427.

6 Harsh v. Morgan, 1 Kans. 293, 298.

construction given to statutes of Ohio, making the shareholders in corporations liable in certain contingencies to the creditors of the companies, it is held that a suit should be brought by or for all the creditors who come within the conditions; that is, all these creditors should actually be made plaintiffs, or the action should be in the name of one for the benefit of all.1

SECTION SEVENTH.

WHO MAY BE JOINED AS DEFENDANTS.

§ 271. The sections of the various State codes and practice acts which prescribe rules for the proper selection of defendants are as follows: one of them is found in all the statutes, and expresses the doctrine in its general form. "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 the questions involved therein." 2 To this general declaration there is added in a few States the following particular clause: "And in an action to recover the possession of real estate, the landlord and tenant thereof may be joined as defendants, and any person claiming title or a right of possession to real estate may be made a party plaintiff or defendant, as the case may require, to any such action." 3 The codes also all contain the following provisions, either embraced in a single section or separated into two, namely: "Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint [or petition]. [And] When the question is one of common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more, may sue or defend

1 Umsted v. Buskirk, 17 Ohio St. 113. 2 New York, § 118; Ohio, § 35; Indiana, § 18; Kansas, § 36; California, § 379; Missouri, art. 1, § 5; Wisconsin, ch. 123, § 19; Florida, § 69; Iowa, § 2547; Nebraska, § 41; Kentucky, § 35; South Carolina, § 141; North Carolina, § 61;

Nevada, § 13; Oregon, § 380, but applied only to equitable actions; Dacotah, § 71; Washington, § 14; Idaho, § 13; Wyoming, § 41; Montana, § 13.

8 New York, § 118; South Carolina, § 141; North Carolina, § 61; California, § 379.