dissenting. — I do not concur in the premises, reasoning or conclusion of the foregoing opinion.
The petition of the plaintiffs is entitled as follows— “ A. J. Fleming for the use of Wm. R. Skiff et al. v. J. R. Mershon et al.” Among other averments, the petition contains the following : “ And your petitioner further alleges that the ques*421tion presented by this petition is one of common or general interest to many persons, residents and tax payers of said Newton township, and it is impracticable, therefore, to bring them all before the coart in this action, and for that reason, therefore, this suit is brought by your petitioner for the use and benefit of them all, as well as his own individual benefit, it being impracticable to bring all the parties in interest before the court.”
Our statute enacts as follows: Section 2763. “When the' question is one of a common or general interest to many persons, or when the parties are very numerous and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.” It will be observed that the averments of the petition, as above set out, embrace the very words of the statute itself. The motion made by the defendant, and which the district court sustained, was, “ to strike from the petition so much thereof as seeks to obtain the relief asked in the petition for any other person than the plaintiff A. J. Fleming, and to dissolve the injunction,” etc., as to them. The motion was based alone upon the averments of the petition, and no showing contrary thereto was made or attempted.
Now, I hold, that since the plaintiff has, by his averments, brought the case within the statute, he is entitled, both for himself and the many persons for whose benefit he sues, to the standing and right which the statute expressly declares, to maintain his action in that form. I do not now say that the defendants might not, by a motion for a more specific state-' ment, or upon a motion, supported by affidavit denying the averments as to numerous parties, the common interest or the desire to join, etc., require a more specific statement as to who the parties are, how numerous, wherein they have a common or general interest, or what sanction, express or implied, such parties give to the actjon. These questions are not involved, and I express no opinion upon them. What I maintain is, that the plaintiffs having brought themselves within the statute are entitled to its benefits.
*422But, by the foregoing opinion of Mr. Justice Miller the statute is completely nullified, and we are remitted to the old chancery rules and exceptions —just this and no more. Now, I deny that those rules and exceptions are so narrow, limited and restrained as they are in that opinion stated to be; and in support of my position I rely upon the cases he cites, and upon these further authorities. 1 Danl. Ch. Pr. & Pl. 284; 1 Story’s Eq. Jur., §§ 546, 547, 548; Rutledge v. Corbin et al., 10 Ohio St. 478; Howard v. St. Clair & M. L. & D. Co., 51 Ill. 130; Mt. C. C. & R. R. Co. v. Blanchard, 54 id. 240, and Flint v. Spurr, 17 B. Monr. 512.
And, further than this, I maintain even if the chancery rules and exceptions are just as Mr. Justice Miller states and construes them, that it by no means follows that our statute is to have the same narrow and limited construction. Those exceptions were innovations or encroachments made by courts of equity upon general rules and princijdes respecting parties to actions. And, as a matter of course, they were kept within the very narrow limits of the necessity of the cases which called them into recognition. In other words, courts of equity were restrained by every consideration for precedent and established rules, to encroach by way of exception only so far as imperative necessity required in order to attain justice in the particular cases.
But our statute has enacted the exception (as is claimed by Justice Miller’s opinion) into a positive rule. Not only so, but the same statute declares that the rule as thus enacted, and all others, “ shall be liberally construed with a view to promote its object and assist the parties in obtaining justice.” § 2622. “ Hence, if the exception as declared in the equity courts was just the same in terms as our statute has enacted into a positive rule, it would not follow that we should place upon it the same limited construction as it received in the courts when it was only a recognized exception to a general rule. I am constrained to suspect from our consultations in this and two or three other cases, that I am given to excessive liberality “ with a view to assist parties in obtaining justice.” *423And I am free to confess that I have but little patience with that disposition which I think I sometimes see manifested in construing remedial statutes, to ignore the light of the present, repudiate the progress made, and to retreat to the beclouded past and borrow its dim light by which to interpret the enactments of to-day; although, when viewed in the clear light of the present, they are so plain that one need not err.
From the construction placed upon this section by the foregoing opinion, it must follow that each tax payer will have to bring a separate suit to enjoin the collection of an illegal tax, and we must have as many suits as there are tax payers who resist, or, if all the tax payers may join in the same suit (which was expressly denied in Armstrong v. The Treasurer, 10 Ohio, 235), then, in case they are numerous, the suit could never be brought to a hearing, because of deaths and successions. In either alternative, it is a practical denial of justice.
It may be proper for me to add something further in answer to the first point of the majority opinion, respecting who are parties in a case like this. In the first place it will be seen that the defendant has treated the other persons than the one named as plaintiff, as being before the court, since his motion was made for the purpose of getting rid of them as parties. If they were not parties and before the court, the motion was unnecessary and irrelevant, and should have been overruled for that reason; if they were parties in such sense as to repder it necessary to strike, from the petition, their names and the averments upon which they seek to obtain relief, then they were parties, in such sense as to entitle them to resist the motion and to reverse the ruling, if erroneous. The defendant having treated them as parties by aiming the motion at them, ought to be estopped from saying they are not parties, when they resist.
The case of The State for use, etc. v. Butterfield, 2 Iowa, 158, referred to in the majority opinion, does not support its conclusion. That was an action in tort for a trespass, and the defendant, by demurrer, assailed the right to bring an action in that form for a tort, but the district court overruled the *424demurrer and sustained the action; and the supreme court affirmed that ruling. The point discussed in the opinion related to the assignability of claims for torts, and the majority of the court held that if the claim had not been assigned, the words “ for use, etc.,” might be regarded as surplusage, and then the action was brought in the name of the real party in interest. Isbell, J., dissenting, held that those words showed that the proceeds belonged to the beneficiaries. In the other case cited (3 Iowa, 447), the action was brought by Scott for the use of Bolenbaugh v. Granger, and the defendant demurred upon several grounds, one of which related to the party plaintiff' ; and the district court sustained the demurrer. The supreme court reversed the judgment, and, among other things said, “and though Bolenbaugh may have an adequate remedy against Scott, that does relieve defendant from his liability on his contract, nor is it any reason why Scott may not sue for the use of Bolenbaugh or any other person he may name.” Surely, these cases are in direct conflict with the view they are cited to sustain, and, further than this, it has been expressly decided in this State, that the holder of a note may bring suit on it in the name of the payee, for the use and benefit of the holder; and in such case any defense available against the payee may be set up against the holder. Temple v. Hayes, etc., 1 Mor. 9; Long, for use, etc. v. Long, id. 43.
Bu,t again, the majority opinion seeks to support its conclusion, by saying that if the suit was properly brought by the plaintiff “ an appeal should be prosecuted in his name, for he is the party of record.” Grant it. That is precisely what has been done m this case. The appeal was taken, the cause was docketed in this court and the majority opinion itself is entitled, all in exact accord with the name and title of the action as originally brought and entitled in the court below. The notice of appeal, however, was signed by H. J. Skiff, and others. This was proper, since they alone appealed. If those not named in the petition had no right to join by name in the notice of appeal, this would not affect the right of H. J Skiff, who is named, to prosecute the appeal in his own name, for he *425was named as a party to the record and beneficially interested in the action.
It must sufficiently appear (it seems to me) from what has already been said, that there is no legal or equitable ground whereon to rest the conclusion of the majority opinion; and yet it may be well to state briefly in quoted language the ground upon which the opposite conclusion might properly be reached. “ The rule that persons claiming under different titles cannot be joined as plaintiffs in the same suit does not apply where their titles, though distinct, are not inconsistent with each other.” Cheshire Iron Works v. Gay, 3 Gray, 531; Merchants’ Bank v. Stevenson, 5 Allen, 502. “Thus all the creditors of a deceased debtor may be joined as co-plaintiffs.” “ It is a matter rather of convenience than indulgence, to permit such a suit by a few on behalf of all the creditors, as it tends to prevent several suits by several creditors,” etc. Ridgley v. Bond, 18 Md. 433; Shepherd v. Gurnsey, 9 Paige, 337; Hazen v. Durling, 1 Green’s Ch. 133. “One creditor may also sue when the demand is against the real as well as the personal estate; but although one creditor may file a bill on his own behalf alone, for administration of the personal estate, he cannot have a decree for administration of the real estate imless he sue on behalf of himself omd all other creditors.” Bedford v. Leigh, 2 Dick. 707; May v. Selby, 1 Y. & C. C. C. 235; S. C., 6 Jur. 52; Blair v. Osmond, 1 De G. & S. 428; S. C., 11 Jur. 665. Where the object of the suit is to restrain the commission of acts which are ultra vires.or such that they cannot be confirmed by the members of a corporation, any one member may sue on behalf of himself and the other members to restrain them.” Hoole v. Gt. West. Ry. Co., 3 Ch. Appeals 262, decided December 12, 1867. These quotations are taken from Daniel’s Ch. Pr. & Pl. 235-243 of Perkins’ 4th Am. from 5th London ed., published in 1871, which see, together with authorities cited in the notes. The same doctrine may also be found in the authorities hereinbefore cited. They abundantly establish the rule that where several persons have distinct and separate interests, not inconsistent with each *426other, one may sue for the benefit of all, and also, that where a corporation is acting uLiyra vires (which is just the case as made by plaintiff), one member may sue on behalf of himself and the other members to restrain them. This is what was done in this case, and the right to do which is denied by the majority opinion.
One paragraph more respecting the right of appeal by the parties for whose use the action is brought. “ The court will generally require the bill to be filed, not only in behalf of the plaintiff, but also in behalf of all other persons interested who are not directly made parties (although in a sense they are thus made so), so that they may come in under the decree, and take the benefit of it, or show it to be erroneous, or entitle themselves to a rehearing.” Story’s Eq. Pl., § 96. “ The other creditors (for whose benefit the suit is brought) may come in under the decree, * * * and obtain satisfaction of their demands equally with the plaintiffs in the suit; and under such circumstances they are treated as parties to the suit.” Id., § 99. “They are so far parties to the suit, that they have a right to appear and contest the validity of any asserted priority over other creditors.” Id., § 101. In Barker v. Walters, 8 Beav. 97; S. C., 9 Jur. 73, Lord Langdale, M. R., ruled that the judgment in such an action was conclusive upou all, and a bar to any other action by others having a like interest with the plaintiff. The beneficiaries are, then, parties in such a sense as that they may appeal and show the order or judgment to be erroneous; otherwise they would be concluded by a judgment without the right to be heard in showing cause against. Surely, it must be true, that they can appeal in the name of the party specified on the record, when he does not object thereto.
So far as respects the concurring opinion by Beck, C. J., it appears to me to affirm a conclusion without admitting any premises whereon to rest it. The statute in question gives the right to bring the action in the name of one or more and for the use and benefit of all others having a like common interest, as parties plaintiffs, or it does not. To deny that the *427statute makes them all parties, is to deny the statute m toto. It is impossible (it seems to me) to decide that the persons for whose use and benefit or in whose behalf the action is brought are not parties, without denying the right of the named plaintiff to bring the action. The sole object of the statute was to enable a named plaintiff to join with him, as plaintiffs in the action, numerous other persons having a like or common interest, without naming them.
I think the judgment should be reversed; but a majority think otherwise and order that the judgment stand
Affirmed.