pointment,23 but that he is a necessary party to such an action when he holds a policy insuring the corporation from loss by the tort and the plaintiff has joined the insurer with the receiver's corporation as a co-defendant; 24 and that he and the corporation may be joined as defendants to a bill to enjoin infringements of a patent and for an accounting of the profits made by infringements before and after his appointment; 25 that the creditors of an insolvent bank are necessary parties to a suit by a stockholder against the bank and its receiver to have his certificate cancelled; 26 and that after the discharge of a receiver and the transfer of the property to a corporation, which as part consideration for the purchase, agreed to pay all valid claims against the receiver, the purchaser is the only proper defendant to a suit to collect such a claim.27 It has been held that the treasurer of a corporation may sue his predecessor in office for an accounting of the corporate funds, without joining the corporation.28

A corporation represents its officers and agents acting in their official capacity in a suit for an injunction against unfair competition.29 Ordinarily, a corporation represents the stockholders thereof in all litigation affecting corporate rights; and liabilities; 30 but not those in which the stockholder has special interest.31 It has been held that a corporation is so far a representative of its stockholders that none of them need be joined in a suit for an accounting, under a lease which provides for the payment of dividends directly to its stockholders; 32 nor a suit to enjoin the collection of unlawful charges for the use

23 Northern Pac. R. Co. v. Heflin, C. C. A., 83 Fed. 93.

24 Moore v. Los Angeles I. & S. Co., 89 Fed. 73. But see Palestine W. & P. Co. v. City of Palestine, 91 Tex. 540, 44 S. W. 814; s. c., 40 L.R.A. 203.

25 Union S. & S. Co. v. Philadelphia & R. R. Co., 69 Fed. 833.

26 Dunn v. State Board, 59 Minn. 221, 61 N. W. 27.

27 Thompson v. Northern Pac. Ry. Co., 93 Fed. 384.

28 Hunter v. Robbins, 117 Fed. 920.

29 International News Service v. The Associated Press, 248 U. S. 215; Wm. A. Rogers, Lt'd, v. H. O Rogers Silver Co., 237 Fed. 887.

30 Pacific R. of Mo. v. Atlantic & P. R. Co., 20 Fed. 277. See Witherbee v. Bowles, 201 N. Y. 427, 435; Weidenfeld v. Northern Pac. R. Co., C. C. A., 129 Fed. 305, 311; Supreme Council of the Royal Arcanum v. Green, 237 U. S. 531, 544. 31 Ibid., see infra, § 186w..

32 Pacific R. of Mo. v. Atlantic & P. R. Co., 20 Fed. 277. See Wither. bee v. Bowles, 201 N. Y. 427, 435;

of water by them when the contract was made by the company for their benefit.83 And an incorporated association of owners and representatives of newspapers is a proper party to represent them in a suit to protect their interest in the news which it collects and distributes among them.34

When a statute imposes a tax upon shares of its capital stock and directs it to pay the same, it may sue to test the validity thereof; 35 but where a question arises affecting the respective rights of different classes of stockholders, the members of each class or representative thereof, as well as the corporation, must be joined in the suit.36 Ordinarily a corporation represents unsecured creditors who have no liens nor judgments in suits affecting the rights of the company to property and its liability.37 In a suit against a corporation to enforce specific performance of a contract made by it in behalf of subsidiary companies, which it controlled through ownership of their stock, it was held that such subsidiary companies were not indispensable, nor even necessary, parties.38

It has been held: that a State statute authorizing one or more officers of an unincorporated association to represent the others in the courts, when suing or being sued about a matter concerning their common interest, will be followed by a Federal court of equity, and the members conclusively presumed to have the same citizenship as such officers.39

The extent to which a trade union represents its individual

Weidenfield v. Northern Pac. R. Co.,
C. C. A., 129 Fed. 305, 311.

33 Magruder V. Belle Fourche Valley Water Users' Ass'n, C. C. A., 219 Fed. 72.

34 International News Service v. The Associated Press, 248 U. S. 215.

35 Cummings v. Nat. Bank, 101 U. S. 153, 157, 25 L. ed. 903; San Francisco Nat. Bank v. Dodge, 197 U. S. 70, 75, 113, 49 L. ed. 669; Charleston Nat. Bank v. Melton, 171 Fed. 743.

36 Baltimore, C. & A. Ry. Co. v. Godeffroy, C. C. A., 182 Fed. 525; Carpenter v. Knollwood Cemetery,

198 Fed. 297. But see Witherbee v. Bowles, 201 N. Y. 427.

37 St. Louis-San Francisco Ry. Co. v. McElvain, 253 Fed. 123.

38 Texas Co. v. Central Fuel Oil Co., C. C. A., 194 Fed. 1.

39 Fargo v. Louisville, N. A. & C. Ry. Co., 6 Fed. 787; Whitman v. Hubbell, 30 Fed. 81; Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566, 19 L. ed. 1029. But see Chapman v. Barney, 129 U. S. 677, 32 L. ed. 800, and supra, § 48.

members has not yet been definitely decided.40 Officers of the General Assembly of the Presbyterian Church in the United States may represent the members in a suit to determine the property rights of the church.41

In suits by or against strangers affecting the partnership property, surviving partners need not have joined with them the personal representatives of their deceased associate.42 And firm creditors may proceed directly against the personal representative of a deceased partner without asking for judgment against the firm or the surviving partner, although the surviving partners must be made parties, since they are interested in taking the account.43

Before the Clayton Act 44 it was held: that a city and county sufficiently represents gas consumers 45 and telephone subscribers, 46 within their territory to justify, in a suit in which the former are made parties defendant, an injunction against the latter, although not formally joined; but in a suit by a carrier against the members of a railroad commission to enjoin the enforcement of an order fixing rates under a statute which provides for awards of reparation for failure to comply with such an order, the Court will not pass upon the validity of any of such awards made to parties not before the court.47 The United States may sue without joining the allottee Indians, to set aside their conveyances of lands within the statutory period of restriction, and may sue upon the official bond of the clerk of a Federal court to recover deposits made by litigants as security for costs; 49 upon the official bond of a Referee in Bankruptcy, to recover

40 Iron Moulders' Union v. AllisChalmers Co., C. C. A., 166 Fed. 45. See infra, §§ 114-116, 276.

41 Barkley v. Hayes, 208 Fed. 319. 42 Pagan v. Sparks, 2 Wash. C. C. 325.

43 U. S. v. Hughes, 161 Fed. 1021, 1023; Story on "Partnership," § 362.

44 38 St. at L. 738, ch. 323, § 19, Comp. St., § 124; infra, § 284.

45 San Francisco Gas & El. Co. v. City and County of San Francisco, 164 Fed. 884, 887. But see

48

Consol. Gas Co. v. Newton, 256 Fed. 238, affirmed by C. C. A., without opinion, $258 infra.

46 Re Engelhard & Sons Co., Petitioner, 231 U. S. 646, p. 418 C.

47 Louisville & Nashville R. R. Co. v. Garrett, 231 U. S. 300; Merchants' & Mfg. Traffic Ass'n, 231 Fed. 292. See Priest v. Las Vergas, 232 U. S. 604, 618.

48 Heckman v. U. S., 224 U. S. 413, 56 L. ed. 820.

49 U. S. v. Abeel, C. C. A., 174 Fed. 12.

excessive fees which he has collected 50 and upon the official bond of a clerk in the Post Office to collect money and the value of property which he has misappropriated 51 for the benefit of all parties who have been injured by the official misconduct without joining any of them. The right of the United States to sue upon contractors' bonds for the benefit of laborers and material men has been previously considered.52

The English rule was that "a court of equity in many cases considers the tenant in tail as having the whole estate vested in him, at least for the purposes of suit; and for these purposes does not look beyond the estate tail in a suit aiming by the decree to bind the right to the land." 53 "Those in remainder were considered as cyphers" 54 "It appears that this rule was originally founded upon analogy to common law. As a tenant in tail might bar subsequent remaindermen,-in fact, might at any moment make himself master of the entire estate, it was considered by the court that he might be assumed to offer a satisfactory defense for all those subsequent interests. The court has, however, gone one step farther, and has treated infants as sufficient representatives of the inheritance, although they are unable, by reason of infancy, to bar remaindermen. In truth the court has gone to the full extent which is requisite for convenience in practice." 55 It has been held that a tenant for life and the contingent remainderman in fee may represent the inheritance in a bill for specific performance, if the children of the remainderman will inherit if he does not.56 But the court. refused to decide whether a will conveyed a fee or a life estate, when the parties were not in existence who would take the remainder if the estate were for life only.57

Lord Eldon said that in most cases respecting trust property the beneficiaries of the trust were necessary parties.58 The expression naturally suggests the inquiry, in what cases are they not to be made parties? There are some cases in which the

50 U. S. v. Ward, C. C. A., 257 Fed. 372. See infra, $$ 638,662.

51 U. S. v. U. S. Fidelity & G'y. Co., C. C. A., 242 Fed. 16.

52 § 5a, supra.

58 Lord Eldon in Lloyd v. Johnes, Ves. 65.

54 Lord Camden in Reynoldson v. Perkins, Ambler, 564.

55 Calvert on Parties (2d ed.), 56. 56 Sohier v. Williams, 1 Curt. 479. 57 Talor v. Fisk, 94 Fed. 242. 58 Adams v. St. Leger, 1 B. & B. 182.

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.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,

60 Franco v. Franco, 3 Ves. 76; Carey v. Brown, 92 U. S. 171, 23 L. ed. 469; Calvert on Parties (2d 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

66 or under any other

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