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II. That in his lifetime, the said A. B. made and published his last will and testament, whereby he devised the said land to the plaintiff, subject, however, to a devise made in the same will, of the same lands, to the defendant, for the term of

III. That on the

day of

the said A. B. died.

18.., at

IV. That the defendant entered into possession of the same under the said will.

V. That on the

........

day of

....

18.., the defendant committed great waste on the said land [state acts of waste].

VI. That the injury thereby done to the said property, and the estate of the plaintiff therein, is more than equal to the value of the defendant's unexpired term.

Wherefore the plaintiff demands judgment:

1. That the estate of the defendant in the said property be forfeited.

2. That he be evicted therefrom.

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§ 2550a. Cutting timber on public lands. In an action by the United States to recover the value of cordwood alleged to have been cut by the defendants on the public lands of the United States, a complaint which alleges that the defendants had cut so many cords of wood from timber growing on the public lands, and the value thereof, and other formal matter, shows a sufficient cause of action to put the defendants on their defense.34 In such action the complaint is not demurrable, on the ground of joining two causes of action, for charging the cutting of trees and timber generally, and also the cutting of trees and timber less than eight inches in diameter, contrary to the statute, the cause of action in both being the unlawful cutting of timber.35

33 This form is applicable to such states as admit by statute forfeiture and eviction on account of waste. Under the statute of California the remedy is confined to recovery of triple damages. 34 United States v. Williams, 6 Mont. 379.

35 Id.

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The plaintiff complains, on behalf of himself and of all others, the creditors of A. B., who shall in due time come in, and seek relief by and contribute to the expenses of this action, and alleges:

I. That the said creditors of A. B. are very numerous, to-wit, more than in number, and that some of them are unknown to the plaintiff, and can not with diligence be ascertained by him; and that it is impracticable to bring them all before the court in this action; wherefore he sues for the benefit of all.1

1 The Code of Civil Procedure of California, and in fact all the Codes, provide for proceedings supplementary to execution, which take the place of the former action for discovery. Under these proceedings the debtor may be examined, and witnesses required to appear and testify, and the judge or referee may order any property of the judgment debtor, not exempt from execution, in the hands of the debtor or any other person, or due to the judgment debtor, to be applied towards the satisfaction of the judg ment. This order, of course, only applies to those cases where It is conceded that the money or property belongs to the judgment debtor. But if the person or corporation alleged to have property of the judgment debtor, or to be indebted to him, claims an interest in the property adverse to him or denies the debt, the court or judge may, by an order, authorize an action to be brought by the creditor against such person or corporation for the recovery of such interest or debt, and in the meantime restrain any transfer or disposition of the debt or interest. See Code Civ. Pro., §§ 714721. These provisions cover the whole field; and sections 4 and 8 of the same Code would seem to restrict the remedy in such cases

§ 2552. Construction of Code provisions. When the question is one of a common or general interest, or it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.2 The provisions of this section are intended to apply exclusively to suits in equity.3 The rule requiring all persons materially interested to be made parties is dispensed with when it is impracticable or inconvenient, as in case of joint associations composed of numerous individuals. In such case the statute authorizes one to sue for all. In such an action, when an injunction is sought, the plaintiff must. allege in his complaint that he sues as well on behalf of himself as on behalf of all others equally interested with him; or for the benefit of those interested who may come in and contribute to the expenses," or "for the benefit of the whole." The language of the Code, "for the benefit of all," is sufficiently stated in the above allegation: "All" "who come in and contribute to the

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to those provided by the Code. However, a complaint by a judgment creditor who has obtained from the court or judge the proper order against one who claims to own the property alleged to be the debtor's, or who denies an indebtedness to the judgment debtor, must substantially conform to the old practice. For proceedings supplementary to execution under the provisions of the Code above referred to, see that title in volume 3: See, also, "An act for the relief of insolvent debtors, and protection of creditors," approved May 4, 1852, and an act supplementary thereto, approved March 31, 1876; act of March 26, 1895. It is held in some of the states that the statutory remedy by proceedings supplementary to execution was intended as a substitute for a creditors' bill as formerly used in chancery. See Pacific Bank v. Robinson, 57 Cal. 520; 40 Am. Rep. 120; Habenicht v. Lissak, 78 Cal. 357; 12 Am. St. Rep. 63; Herrlich v. Kaufman, 99 Cal. 275; Hexter v. Clifford, 5 Col. 168. In other states it is held that the creditor may still resort to his remedy by creditors' suit. See Feldenheimer v. Tressel, 6 Dak. 265; Enright v. Grant, 5 Utah, 334; Hart v. Albright, 28 Abb. N. C. 74; Allen v. Fritch, 5 Col. 222.

2 Cal. Code Civ. Pro., § 382; New York Code of 1877, § 448; Laws of Idaho, § 14; Arizona, § 14; Washington Territory, § 15; Smith v. Lockwood, 1 Code R. (N. S.) 319; Wood v. Draper, 24 Barb. 187; S. C., 4 Abb. Pr. 322.

3 Andrews v. Mok. Hill Co., 7 Cal. 330; see vol. 1, pp. 54, 55, pars. 23, 24, 25.

4 Gorman v. Russell, 14 Cal. 531.

5 Smith v. Lockwood, 1 Code R. 319; Wood v. Draper, 24 Barb. 187; 4 Abb. Pr. 322.

• Id.; Dennis v. Kennedy, 19 Barb. 517.

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expenses." The Code provides that "those who are united in interest shall be joined as plaintiffs;" but it also, in the same section, provides that "when the question is one of common or general interest one or more may sue for all," thus creating a distinction in the terms "united in interest" and common interest."8 Thus in the case of legatees having a common interest, one may sue in behalf of himself and the others, and all may avail themselves of the decree. Otherwise, however, where the interest of several parties are united, in which case all must be joined.10 Where a member of an incorporated association sues the president or other chief officers for an accounting concerning the property of the association, or for a fraudulent breach of trust in respect thereto, all the members of the association must be made parties, or the plaintiff must sue for the benefit of all others standing in the same situation as himself.11 "A creditor can avoid the act or obligation of his debtor for fraud only where the fraud obstructs the enforcement, by legal process, of his right to take the property affected by the transfer or obligation."12 This principle lies at the foundation of all "creditors' suits," so called, and which existed before the Code.

$ 2553. Parties. In New York, no creditor can individually maintain an action against an individual stockholder for the share illegally distributed to him. The liability is to the. creditors generally, and the action should be commenced by some party representing all the creditors.13 A creditor's bill brought by two judgment creditors jointly, to reach the assets of a corporation, is not demurrable for misjoinder of parties plaintiff.14 A grantee of land, who acquires title thereto prior

Dennis v. Kennedy, 19 Barb. 517.

8 Cal. Code Civ. Pro., § 382. An averment in the creditor's bill that the plaintiff sued on behalf of other creditors who may come in and be made parties to the action is immaterial and redundant surplusage. Baines v. Lumber Co., 104 Cal. 1.

? McKenzie v. L'Amoureux, 11 Barb. 516; see, also, Brooks v. Peck, 38 id. 519.

10 Cal. Code Civ. Pro., § 382.

11 Worth v. Radde, 18 Abb. Pr. 396; S. C., 28 How. Pr. 230; Habicht v. Pemberton, 4 Sandf. 657.

12 Cal. Civil Code, § 3441.

13 Osgood v. Laytin, 5 Abb. Pr. (N. S.) 1; compare Harmon v. Page, 62 Cal. 448; Tatum v. Rosenthal, 95 id. 129: 29 Am. St. Rep. 97: Thompson v. Savings Bank, 19 Nev. 103; 3 Am. St. Rep. 797. 14 Baines v. West Coast Lumber Co., 104 Cal. 1.

to the commencement of an action in the nature of a creditor's bill against his grantor and his predecessors in interest, is not affected by the judgment therein, unless he is made a party to the action.15 A fraudulent grantor is a proper party defendant in an action to subject to a lien of a judgment the property alleged to have been fraudulently conveyed, but he is not a necessary party. 16

$2554. The same are concerned.

[TITLE.]

where a particular class of creditors only

Form No. 593.

The plaintiff complains, on behalf of himself and all others, the creditors of A. B., who are parties to the deed of trust hereinafter mentioned for whose executions have been returned unsatisfied], and who shall come in and seek relief by and contribute to the expenses of this action, and alleges:

I. [The same as in preceding form, omitting "wherefore he sues for the benefit of all."]

II. That the question which is the subject of this action is one of a common and general interest of all the said creditors under the said trust deed; wherefore the plaintiff sues for the benefit of all.

III. [Allege cause of action.]

[DEMAND OF JUDGMENT.]

§ 2555. Parties to the deed of trust. It is only the particular class who might have brought the suit who can come in.17 Where a lien creditor seeks relief in equity, in behalf of himself and other creditors of the same class, the decree should provide for the relief of all.18 All parties in the same manner affected, though in different degrees, may be joined.19

15 Lange v. Braynard, 104 Cal. 156.

16 Blanc v. Mining Co., 95 Cal. 524; 29 Am. St. Rep. 149; and see Fry v. Moyer, 54 N. Y. 130; Coffey v. Norwood, 81 Ala. 512.

17 Parmlee v. Egan, 7 Paige, 610; Cook v. Smith, 3 Sandf. Ch. 333.

18 Trustees of Wabash & Erie Canal v. Beers, 2 Black, 448.

19 Vermeule v. Beck, 15 How. Pr. 333; Van Rensselaer v. Layman, 10 id. 505; Wandle v. Turney, 5 Duer, 661.

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