existence or enjoyment of property is affected by the prayer of the suit. There are others in which the existence of the property is not affected, and the only object is to transfer it into the hands of the trustees.5 59 In the latter cases the beneficiaries of the trust need not,60 although it seems they may be made parties.61 In the former, when not too numerous, their presence was always required, before the equity rules.62

The former equity rules, following an English Chancery order,63 provided that: "In all suits concerning real estate which is vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons beneficially interested in the estate, or the proceeds, or the rents and profits, in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate; and in such cases it shall not be necessary to make the persons beneficially interested in such real estate, or rents and profits, parties to the suit, but the court may, upon consideration of the matter on the hearing, if it shall so think fit, order such persons to be made parties." 64 "It seems doubtful, however," says Daniell of the English order, "whether this order will apply to cases where a mortgagee seeks to foreclose the equity of redemption of estates which are subjects to such trusts." 65

Trustees under a railroad mortgage,66 or under any other

59 Calvert on Parties, (2d ed.), 277.

60 Franco v. Franco, 3 Ves. 76; Carey v. Brown, 92 U. S. 171, 23 L. ed. 469; Calvert on Parties (24) ed.), 277, 278.

61 Harrison v. Rowan, 4 Wash. C C. 202; McCampbell v. Brown, 48 Fed. 795; Hayes v. Pratt, 147 U. S. 557, 37 L. ed. 279; In re E. T. Kenney Co., 136 Fed. 451. Contra, Consolidated Water Co. v. City of San Diego, 92 Fed. 759; Perkins Hendryx, 149 Fed. 526.

V.

62 Whistler v. Webb, Bunb. 53; Greene v. Sisson, 2 Curt. 171; Oli

ver v. Platt, 3 How. 333, 11 L. ed. 622, s. c., 2 McLean, 268; Cross v. De Valle, 1 Wall. 5, 17 L. ed. 515. See Pollitz v. Wabash R. R., Bischoff, J., N. Y. Sup. Ct. Sp. Tm., N. Y. L. J. Sept. 19, 1912.

63 30th Order of August, 1841. 64 Rule 49, of 1842.

65 Daniell's Ch. Pr. (2d Am. ed.) 304. See also Whilton v. Jones, 2 Y. & C. 244; Cross v. De Valle, 1 Wall. 5, 17 L. ed. 515.

66 Shaw v. Railroad Co., 100 U. S. 605, 611, 25 L. ed. 757, 758; Beals v. Illinois, Mo. & T. R. Co., 133 U. S. 290, 33 L. ed. 608; Elwell

trust-deed of a similar nature securing the rights in real property of a large number of beneficiaries, 67 are held, in all proceedings affecting the property which they thus hold, adequately to represent the latter, who will be bound, in the absence of fraud, by notice given to, or a decree entered against trustees, although the court may in its discretion make any of such beneficiaries a party to the suit at his application 68 but he cannot maintain an action at law upon the bonds, and they are not merged in a deficiency judgment taken by him in a foreclosure suit.69 It has been held that bondholders are sufficiently represented by their trustee in a suit for a release of certain property from the lien of the mortgage.70 A bondholder cannot

sue to foreclose where there is a trustee under his mortgage in existence without making the trustee a defendant and alleging the latter's refusal to sue, or at least his unwillingness to sue and such a state of facts as to make the request an idle ceremony.71 Even where the mortgage can only be foreclosed at the request of a majority of the bondholders, the trustee need not join with him in the suit any of those who have made the request.72 In such a case, the trustee is bound to recognize the rights of the holders of all bonds that are prima facie valid and to act on their request to foreclose when made by the req

v. Fosdick, 134 U. S. 500, 33 L. ed. 998; Leavenworth County Com'rs v. Chicago, R. I. & P. Ry. Co., 134 U. S. 688, 33 L. ed. 1064; Allen-West Commission Co. v. Brashear, 176 Fed. 119. Ex parte Equitable Trust Company, C. C. A., 231 Fed. 571.

67 Van Vechten v. Terry, 2 Johns. Ch. (N. Y.) 197; Kerrison v. Stew art, 93 U. S. 155, 23 L. ed. 843; McKee v. Lamon, 159 U. S. 317, 40 L. ed. 165; Dalton v. Hazelet, C. C. A., 182 Fed. 561; Carpenter v. Knollwood Cemetery, 198 Fed. 297. The power of a trustee to sue to protect the trust estate, by the foreclosure of a mortgage or otherwise, cannot be restricted by agreement of the parties. N. Y. Tr. Co. v. Michigan Traction Co., 193 Fed.

68 Williams v. Morgan, 111 U. S. 684, 28 L. ed. 559; Thomas V. Brownville, F. K. & P. R. Co., 109 U. S. 522, 27 L. ed. 1018; infra, $ 258.

69 Mackay V. Randolph Macon Coal Co., C. C. A., 178 Fed. 881.

70 Colorado & Southern Ry. Co. v. Blair, N. Y. App. Div. July, 1914.

71 Consol, Water Co. v. San Diego, 89 Fed. 272. It was held that a bondholder cannot be joined as a co-plaintiff with the trustee. Consol. Water Co. v. San Diego, 92 Fed. 759.

72 Grand Tr. Ry. Co. v. Central Vt. Ry. Co., 88 Fed. 622. See N. Y. S. & Tr. Co. v. Lincoln St. Ry. Co., 74 Fed. 67.

uisite number.73 A provision requiring the request of the holder of one-fourth of the bonds before a foreclosure did not prevent a foreclosure at the suit of holders of a smaller number, when more than three-fourths were held by a party who had caused the default by misappropriating the earnings of the railroad.74 The power of the trustee to sue to preserve the trust estate cannot be abridged or restricted, even by agreement of the parties.75 In a foreclosure suit brought by holders. of a minority of bonds, where there is a claim that the consent of the holders of a majority is required, it is proper to join the majority as defendants.76 The fact that the trustee represents conflicting interests does not incapacitate him from bringing a suit to protect the trust estate,77 although that might make it proper for the bondholders or for beneficiaries to be joined as parties to the suit.78 In certain cases committees of bondholders have been made parties to railroad foreclosures.79 Under a railroad lease by which the lessee covenanted to pay to a bank selected by the lessor a sum sufficient to pay the interest upon the lessor's mortgage bonds and taxes, it was held that the bondholders might present their claim directly against the receivers of the lessee without the joinder of the receiver of the lessor who had been appointed by a State court.80

It was held that a trustee appointed by a railway company to hold mortgage bonds, pledged as security for negotiable notes of the corporation, was the agent of the latter only and not of the note holders, and did not represent them in a suit affecting the validity of the notes.81 It has been held that to a bill against the heirs of a trustee to quiet the title to property conveyed

78 Central Tr. Co. v. Cincinnati, H. & D. Ry. Co., 169 Fed. 466.

74 Linder v. Hartwell R. Co., 73 Fed. 320. See Hubbard v. Galveston, H. & S. A. Ry. Co., C. C. A., 200 Fed. 504, 509.

75 N. Y. Tr. Co. v. Michigan Traction Co., 193 Fed. 175, 180; citing Old Colony Tr. Co. v. City of Wichita, 123 Fed. 762; Guaranty Tr. Co. v. Green Cove Springs Co., 139 U. S. 137, 11 Sup. Ct. 512, 35 L. ed. 116.

76 Toler v. East Tenn. & C. Ry. Co., 67 Fed. 168.

77 Central Tr. Co. v. Cincinnati, H. & D. Ry. Co., 169 Fed. 466.

78 Farmers' L. & H. Co. v. Northern Pac. R. Co., 66 Fed. 169.

79 Farmers' L. & Tr. Co. v. Cape Fear & Y. V. Ry. Co., 71 Fed. 38 (by intervention).

80 Mercantile Tr. Co. v. Baltimore & O. R. Co., 94 Fed. 722.

81 Central Tr. Co. v. Cincinnati, H. & D. Ry. Co., 169 Fed. 466.

by the trustee to the complainant, the beneficiary of the trust. need not be joined as a party; 82 but that the beneficiaries must be made parties to a bill by a stranger to set aside the deed of trust for fraud,83 and to a suit by one of several stockholders to set aside an agreement to pool their stock by depositing the same with trustees, the other stockholders, as well as the trustees, are necessary parties.84

§ 114. Class suits. When a number of persons have a common interest in a thing which is the subject of litigation, and, in some instances, when a number of persons have a common interest in a question which is before the court for decision, one or more may sue or be sued in behalf of the rest. Judge Story divides the first of these divisions into two: (1) When the question is one of a common and general interest, and one or more sue or defend for the benefit of the whole;" and "(2) when the parties form a voluntary association for public or private purposes, and those who sue or defend may fairly be presumed to represent the rights and interests of the whole."1 But there seems to be no reason for treating the two classes separately. These are called "class suits," "creditors' suits," or "stockholders' suits," as the case may be.2

"When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole."3 When one or more thus file a bill on behalf of themselves and others similarly interested, they should state in the title of their bill that they so sue, and show that the others are numerous or unknown. In a case where a railroad mortgaged its property directly, without the intervention of a trustee to fifteen bondholders, naming them, and the adequacy of the security was doubtful, it was held that one could not sue on behalf of the rest, but that all the bond

82 Gridley v. Wynant, 23 How.

500.

83 Collin Mfg. Co. v. Ferguson & Hutter's Trustee, 54 Fed. 721. Contra, Vetterlein v. Barnes, 124 U. S. 169, 31 L. ed. 400.

84 Ryan v. Seaboard R. Co., 89 Fed. 391.

$ 114. 1 Story's Eq. Pl. § 97.

2 Seminole Securities Co. v. Southern Life Ins. Co., 182 Fed. 85, 96. 3 Eq. Rule 38.

4 Hoe v. Wilson, 9 Wall. 501, 19 L. ed. 762; State of Maine Lumber Co. v. Kingfield Co., 218 Fed. 902.

holders must be joined as parties to the bill.5 Where there were one hundred and twenty bonds of $500 each, secured by a mortgage to a trustee, and all the bonds were held by three persons, it was held that all the bondholders were indispensable parties to a bondholder's foreclosure suit, although the plaintiff's bondholder filed his bill on behalf of the others as well as of himself. Any others of the class have the right to join with them in the suit at any time before its settlement or termination upon payment of their share of the costs, and counsel fees, which have been then paid or incurred, provided they do not seek to act in hostility to the original complainants, in which case the court may in its discretion allow them to intervene.10 If their joinder as plaintiffs would oust the court. of jurisdiction, they may be brought in as defendants.11 Such a bill may be filed even when a majority of those interested object to the suit.12 "For where a matter is necessarily injurious to the common right, the majority of the persons interested can neither excuse the wrong nor deprive all other parties of their remedy by suit." 13 To such a bill it is not necessary to make defendants all who object to its being filed, provided that enough are brought before the court to sufficiently represent their interest.1 14

It was originally held that no one could sue on behalf of others who claimed for himself an interest in the matter in

5 Railroad Co. v. Orr, 18 Wall. 471, 21 L. ed. 810.

6 Mangels v. Donau Brewing Co., 53 Fed. 513.

7 Ogilvie v. Knox Ins. Co., 2 Black. 539, 17 L. ed. 349; s. c., 22 How. 380, 16 L. ed. 349; Ex parte Jordan, 94 U. S. 248, 24 L. ed. 123; Hallett v. Hallett, 2 Paige (N. Y.), 15; Leigh v. Thomas, 2 Ves. Sen. 313, Ransom v. Davis, 18 How. 295, 15 L. ed. 388; Story's Eq. Pl., § 99.

8 Central R. Co. v. Pettus, 113 U. S. 116, 28 L. ed. 915; Trustees v. Greenough, 105 U. S. 527, 26 L. ed.

1157.

9 Forbes v. Memphis, El Paso & Pacific R. Co., 2 Woods, 323.

10 Galveston R. Co. v. Cowdrey, 11 Wall. 459, 478, 20 L. ed. 205.

11 Brown v. Pacific Mail S. S. Co., 5 Blatchf. C. C. 525, 535. But see Stewart v. Dunham, 115 U. S. 61, 29 L. ed. 329.

12 Bromley v. Smith, 1 Simons, 8; Taylor v. Salmon, 4 Myl. & Cr. 134; Story's Eq. Pl., § 114. But see Jones v. Garcia del Rio, 1 Turn. & Russ. 300.

11.

18 Bromley v. Smith, 1 Simons, 8,

14 Clinch V. Financial Corporation, L. R. 4 Ch. App. 117, at p. 122; Story's Eq. Pl., § 135b.