be entirely extra-judicial. In the States which permit such suits by a tax-payer or freeholder generally, there is some conflict of opinion in respect to the question, whether one can sue on behalf of others similarly situated with himself. It has been held in Wisconsin that an action cannot be maintained by one tax-payer as a representative of all others in a local district, to prevent the enforcement of an alleged illegal tax which would be a lien upon real estate, on the ground that the lands owned by the individual tax-payers, and affected by the tax, are distinct and separate parcels, and there is no common interest among the owners thereof. The conclusion was that each tax-payer must sue separately.1

§ 396. I pass now to consider the nature of an action brought by one on behalf of others, and its effects upon the rights and duties of those who are represented by the actual plaintiffs. The persons not named in such cases are not parties to the suit unless they afterwards elect to come in and claim as such, and bear their proportion of the expenses. It is optional with them whether they will become parties or not, and until they so elect they are, in the language of the books, "in a sense deemed to be before the court." 2 They are so far before the court, that if they neglect, after a reasonable notice to them for that purpose, to come in under the judgment and establish their claims, the court will protect the defendants and parties named from any further litigation in respect of the same fund or other subject-matter, especially so far as such litigation may tend to disturb the rights of the parties as fixed by the judgment. A person who elects to come in and make himself a party, must apply for an order making him such, and upon the granting the order he is to all intents and purposes a party.3

§ 397. This rule, which is merely the doctrine and practice of equity applied to cases arising under the statutory provision,

1 Newcomb v. Horton, 18 Wisc. 566. See the cases on the subject of tax-payers and freeholders uniting, collected, supra, in § 269. When they are permitted to join in an action, one is suffered to sue as a representative of all others similarly situated. In North Carolina, one citizen has been permitted to sue on behalf of others in an action to test the validity of an election; and, conversely, another citizen was suffered to appear and defend the

suit on behalf of his fellow-citizens of the town. Perry v. Whitaker, 71 N. C. 477.

2 Story's Eq. Pl., § 99; Adair v. New River Co., 11 Ves. 444.

3 Stevens v. Brooks, 22 Wisc. 695, 703, 704, per Dixon C. J.; Hallett v. Hallett, 2 Paige, 18, per Walworth, Ch. ; Good v. Blewit, 19 Ves. 336, 339, per Lord Eldon; Story's Eq. Pl., § 99; Barker v. Walters, 8 Beav. 92.

has not been acquiesced in by all the courts. In Kentucky, where the chancery has always existed as a separate tribunal, and where even under the code there is a nominal distinction kept up between legal and equitable actions, it is held that the assent of those who are not actual parties, but who have a common interest with their representative, will be presumed unless they show their disapproval by some act indicating the dissent.1 This is in direct conflict with the rule first stated. According to the one, the persons who are represented must do some affirmative act of approval and adoption, and regularly this act should be an application to the court, and the obtaining an order declaring them to be in all respects parties; according to the other, these persons must do some act of disaffirmance and rejection, but what particular act is not disclosed.

§ 398. The question whether any specified person among the number of those represented had made himself or was a party to the suit, may present itself in two very different aspects, and its answer may be necessary for two very different purposes. In the first place, the question may be, whether this individual, as against the defendants in the action, and perhaps as against those who were the original plaintiffs, or who had made themselves such, is entitled to the immediate benefits of the recovery, to a share in the relief granted by the court in its decree. It is evident that, under this aspect of the matter, a slight affirmative act of assent and adoption may be sufficient if the person is then willing and does contribute his share to the expenses of the litigation. The nature of the cause of action may be such that, if the relief is granted at all, it will necessarily inure to the benefit of all who may be situated in the same position as the actual plaintiff. On the other hand, the cause of action may be such that a separate application will be necessary to bring each person within the operation of the judgment, although the decision made in one case may control that in all others; as, for example, in a creditors' suit to set aside fraudulent transfers of the debtor's land, and let in the liens of the plaintiffs' judgments, a separate action of the court is necessary in the case of each judgment creditor, in order that he may reap the benefit of the general decision pronouncing the debtor's transfer to be void.

§ 399. In the second place, the question may be whether the

1 Flint v. Spurr, 17 B. Mon. 499, 513.

specified individual who is one of those represented by the actual plaintiff, is concluded and bound by the judgment rendered in the action. This question will generally arise at a subsequent time, and in another action brought by or against the individual, and involving the same issues as those embraced in the former controversy. Is this person bound by the former judgment? Of course he is not bound unless he was practically a party to the proceeding; the plainest principles of common justice refuse to hold a man concluded if he has not had a day in court." When the matter is presented in this aspect, the strict rule of the equity courts first above stated must be controlling. If the subsequent proceeding is a hostile one against the person, the former adjudication cannot be relied upon as an estoppel or as conclusive, unless he had affirmatively taken the steps which made him an actual party by adopting the suit with all its burdens and benefits, or unless, after having had notice, and an opportunity of coming in and making himself such a party, he had refused or neglected to do so. If, however, this subsequent proceeding is on behalf of the person, set in motion by him, the same doctrine must apply; he cannot under exactly the same circumstances claim and receive the benefits of the former litigation, but disclaim and be freed from its burdens and disabilities.

§ 400. The conclusion to which I arrive from the foregoing discussion may be summed up as follows: There may be a marked difference in the manner of enforcing the rule, or even in the rule itself, depending upon the position of the litigation, and the situation of the person who invokes its aid or against whom it is invoked. If the prior suit is still pending, and the purpose of the claimant who belongs to the class of persons represented by the actual plaintiff or defendant, be to take a practical part in the controversy, or to share the benefit of the judgment which has been or may be rendered, his mere act of making the claim, coupled with a willingness to bear his share of the expenses, will be of itself a sufficiently positive and affirmative act to make him a party to the proceeding and entitle him to his personal relief. Even in this case, however, the action may be of

1 This was the situation of the parties and of the facts in the case cited in a preceding paragraph from Wisconsin, in

which the strict equity rule was enforced. Stevens v. Brooks, 22 Wisc. 695.

such a nature and the judgment of such a character, that a separate order or adjudication of the court will be necessary in order to determine the particular rights under the general decree of each party, and to award to him his special portion of the general relief. The case already mentioned of the different judgment creditors interested in the result of an ordinary creditors' suit, is a sufficiently illustrative example. If, however, the prior suit has been terminated, and the question arises in a subsequent controversy, and involves the conclusive effect of the former adjudication upon the class of persons represented by the actual parties, in order that such judgment should be conclusive upon any particular person of the class either in his favor or against him, there must have been the previous formal act on his part of applying to the court, and an order thereon making him a party to the action, so that his name should have appeared in some manner upon the record; or it must be shown that he had notice of the proceedings, and an opportunity to unite in them of which he neglected or refused to avail himself. These views and conclusions reconcile the decisions which at first sight appear to be conflicting, and they present a practical and harmonious rule of procedure.1

§ 401. It has already been stated that the complaint or petition should contain averments which bring the action within one or the other of the cases mentioned in the section of the codes. The allegations showing the existence of a common or general interest in the questions at issue in the one case, or the impracticability on account of numbers of bringing all the persons before the court in the other, should be positive and specific, so that if denied, an issue may be raised upon them. It is not

1 See, on this subject, Story's Eq. Pl. $$ 99, 106; David v. Frowd, 1 Myl. & K. 200; Gillespie r. Alexander, 3 Russ. 130; Farrell r. Smith, 2 Ball & B. 337; Cockburn e. Thompson, 16 Ves. 327; Good v. Blewit, 19 Ves. 336, 339; Leigh v. Thomas, 2 Ves. 312, 313; Hendricks v. Robinson, 2 Jolins. Ch. 283, 296; Hallett v. Hallett, 2 Paige, 18, 19. The equity practice in this class of cases is, upon rendering the interlocutory decree, to advertise for all the represented persons to appear before a master within a specified time and establish their claims, and make themselves parties to the suit; and upon the master's

report of such applicants, the final decree is made. After such final decree, the defendant will, in general, be protected. But if any creditor, or other person represented by the actual plaintiff, should not have received notice, and there was no default or want of diligence on his part, he may be permitted to recover his share, not from the defendant in the original action, but from those who had united with the plaintiff, and received in the distribution more than the amount to which they were justly entitled. See David v. Frowd, 1 M. & K. 200.

necessary, however, that the persons who, it is. alleged, have the common or general interest, or who, it is said, are so numerous that they cannot all be brought before the court, should be named, nor be described with particularity; nor is it necessary that they should be an association or special class, or be described as such. The general averment descriptive of the persons as a whole is enough; and the question whether any particular individual is included within it will arise, and must be decided upon his application to be admitted as a participant in the suit while in progress, or in the relief after judgment. If any opposition is made to his application, the matter will be sent to a master or referee to hear and report, and upon his report the court will make the proper order admitting or rejecting the applicant.2

SECTION NINTH.

PERSONS SEVERALLY LIABLE UPON THE SAME INSTRUMENT.

§ 402. The subject-matter of this section has already been treated in a general manner in the discussions relating to joint, joint and several, and several liabilities, and to actions thereon, and to the changes wrought in the common-law rules regulating the same, which are contained in the seventh section of this chapter. It is of so great importance, however, and the statutory provisions have made so sweeping an alteration in the ancient law, and withal there is so marked a difference in the special legislation of the State codes upon this particular topic, that the subject demands an independent and thorough examination. The statutory provisions themselves must be separated into two classes. The first class, which is found in most of the codes, embraces special rules relating only to persons severally liable upon the same instrument, and the language which embodies the enactment is substantially alike in all the statutes which contain the provision at all. The second class, which is found in a portion only of the codes, is much more sweeping and radical in its changes; it embraces rules relating to joint, joint and several, and several liabilities arising upon all contracts; while the language used by the legislatures is not the same in any two of the codes.

1 Sourse v. Marshall, 23 Ind. 194.

2 Stevens v. Brooks, 22 Wisc. 695.