directors or trustees and, if necessary, from the shareholders such action as he desires, and the reasons for his failure to obtain such action or the reasons for not making such effort.

(c) Dismissal or compromise.

A class action shall not be dismissed or compromised without the approval of the court. If the right sought to be enforced is one defined in paragraph (1) of subdivision (a) of this rule notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. If the right is one defined in paragraphs (2) or (3) of subdivision (a) notice shall be given only if the court requires it.

NOTES OF ADVISORY COMMITTEE ON RULES

Note to Subdivision (a). This is a substantial restatement of former Equity Rule 38 (Representatives of Class) as that rule has been construed. It applies to all actions, whether formerly denominated legal or equitable. For a general analysis of class actions, effect of judgment, and requisites of jurisdiction see Moore, Federal Rules of Civil Procedure: Some Problems Raised by the Preliminary Draft, 25 Georgetown L. J. 551, 570 et seq. (1937); Moore and Cohn, Federal Class Actions, 32 Ill. L. Rev. 307 (1937); Moore and Cohn, Federal Class Actions Jurisdiction and Effect of Judgment, 32 Ill. L. Rev. 555—567 (1938); Lesar, Class Suits and the Federal Rules, 22 Minn. L. Rev. 34 (1937); cf. Arnold and James, Cases on Trials, Judgments and Appeals (1936) 175; and see Blume, Jurisdictional Amount in Representative Suits, 15 Minn. L. Rev. 501 (1931).

The general test of former Equity Rule 38 (Representatives of Class) that the question should be "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," is a common test. For states which require the two elements of a common or general interest and numerous persons, as provided for in former Equity Rule 38, see Del. Ch. Rule 113; Fla. Comp. Gen. Laws Ann. (Supp., 1936) § 4918 (7); Georgia Code (1933) § 37-1002, and see English Rules Under the Judicature Act (The Annual Practice, 1937) O. 16, r. 9. For statutory provisions providing for class actions when the question is one of common or general interest or when the parties are numerous, see Ala. Code Ann. (Michie, 1928) § 5701; 2 Ind. Stat. Ann. (Burns, 1933) § 2-220; N. Y. C. P. A. (1937) § 195; Wis. Stat. (1935) § 260.12. These statutes have, however, been uniformly construed as though phrased in the conjunctive. See Garfein v. Stiglitz, 260 Ky. 430, 86 S. W. 2d 155 (1935). The rule adopts the test of former Equity Rule 38, but defines what constitutes a "common or general interest". Compare with code provisions which make the action dependent upon the propriety of joinder of the parties. See Blume, The "Common Questions" Principle in the Code Provision for Representative Suits, 30 Mich. L. Rev. 878 (1932). For discussion of what constitutes "numerous persons" see Wheaton, Representative Suits Involving Numerous Litigants, 19 Corn. L. Q. 399 (1934); Note, 36 Harv. L. Rev. 89 (1922).

Clause (1), Joint, Common, or Secondary Right. This clause is illustrated in actions brought by or against representatives of an unincorporated association. See Oster v. Brotherhood of Locomotive Firemen and Enginemen, 271 Pa. 419, 114 Atl. 377 (1921); Pickett v. Walsh, 192 Mass. 572, 78 N. E. 753, 6 L. R. A., N. S., 1067 (1906); Colt v. Hicks, 97 Ind. App. 177, 179 N. E. 335 (1932). Compare Rule 17 (b) as to when an unincorporated association has capacity to sue or be sued in its common name; United Mine Workers of America v. Coronado Coal Co., 259 U. S. 344, 42 S. Ct. 570, 66 L. Ed. 975, 27 A. L. R. 762 (1922) (an unincorporated association was sued as an entity for the purpose of enforcing against it a federal substantive right); Moore, Federal Rules of Civil Procedure: Some Problems Raised by the Preliminary Draft, 25 Georgetown L. J. 551, 566 (for discussion of jurisdictional requisites when an unincorporated association sues or is sued in its common name and jurisdiction is founded upon di

versity of citizenship). For an action brought by representatives of one group against representatives of another group for distribution of a fund held by an unincorporated association, see Smith v. Swormstedt, 16 How. 288, 14 L. Ed. 942 (U. S. 1853). Compare Christopher, et al. v. Brusselback, 302 U. S. 500, 58 S. Ct. 350, 82 L. Ed. 388 (1938).

For an action to enforce rights held in common by policyholders against the corporate issuer of the policies, see Supreme Tribe of Ben Hur v. Cauble, 255 U. S. 356. 41 S. Ct. 338, 65 L. Ed. 673 (1921). See also Terry v. Little, 101 U. S. 216, 25 L. Ed. 864 (1880); John A. Roebling's Sons Co. v. Kinnicutt, 248 Fed. 596 (D. C. N. Y., 1917) dealing with the right held in common by creditors to enforce the statutory liability of stockholders.

Typical of a secondary action is a suit by stockholders to enforce a corporate right. For discussion of the general nature of these actions see Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 56 S. Ct. 466, 80 L. Ed. 688 (1936); Glenn, The Stockholder's Suit-Corporate and Individual Grievances, 33 Yale L. J. 580 (1924); McLaughlin, Capacity of Plaintiff-Stockholder to Terminate a Stockholder's Suit, 46 Yale L. J. 421 (1937). See also Subdivision (b) of this rule which deals with Shareholder's Action; Note, 15 Minn. L Rev. 453 (1931).

Clause (2). A creditor's action for liquidation or reorganization of a corporation is illustrative of this clause. An action by a stockholder against certain named defendants as representatives of numerous claimants presents a situation converse to the creditor's action.

Clause (3). See Everglades Drainage League v. Napoleon Broward Drainage Dist., 253 Fed. 246 (D. C. Fla., 1918); Gramling v. Maxwell, 52 F. 2d 256 (D. C. N. C., 1931), approved in 30 Mich. L. Rev. 624 (1932); Skinner v. Mitchell, 108 Kan. 861, 197 Pac. 569 (1921); Duke of Bedford v. Ellis (1901) A. C. 1, for class actions when there were numerous persons and there was only a question of law or fact common to them; and see Blume, The "Common Questions" Principle in the Code Provision for Representative Suits, 30 Mich. L. Rev. 878 (1932).

Note to Subdivision (b). This is former Equity Rule 27 (Stockholder's Bill) with verbal changes. See also Hawes v. Oakland, 104 U. S. 450, 26 L. Ed. 827 (1882) and former Equity Rule 94, promulgated January 23, 1882, 104 U. S. IX.

Note to Subdivision (c). See McLaughlin, Capacity of Plaintiff-Stockholder to Terminate a Stockholder's Suit, 46 Yale L. J. 421 (1937).

SUPPLEMENTARY NOTE OF ADVISORY COMMITTEE REGARDING THIS RULE

Note. Subdivision (b), relating to secondary actions by shareholders, provides among other things, that in such an action the complainant "shall aver (1) that the plaintiff was a shareholder at the time of the transaction of which he complains or that his share thereafter devolved on him by operation of law. . ."

As a result of the decision in Erie R. Co. v. Tompkins, 304 U. S. 64, 58 S. Ct. 817 (decided April 25, 1938, after this rule was promulgated by the Supreme Court, though before it took effect) a question has arisen as to whether the provision above quoted deals with a matter of substantive right or is a matter of procedure. If it is a matter of substantive law or right, then under Erie R. Co. v. Tompkins clause (1) may not be validly applied in cases pending in states whose local law permits a shareholder to maintain such actions, although not a shareholder at the time of the transactions complained of. The Advisory Committee, believing the question should be settled in the courts, proposes no change in Rule 23 but thinks rather that the situation should be explained in an appropriate note.

The rule has a long history. In Hawes v. Oakland, 1882, 104 U. S. 450, the Court held that a shareholder could not maintain such an action unless he owned shares at the time of the transactions complained of, or unless they devolved on him by operation of law. At that time the decision in Swift v. Tyson, 1842, 16 Peters 1, was the law, and the federal courts considered themselves free to establish their own principles of equity jurisprudence, so the Court was not in 1882 and has not been, until Erie R. Co. v. Tompkins in 1938, concerned

with the question whether Hawes v. Oakland dealt with substantive right or procedure.

Following the decision in Hawes v. Oakland, and at the same term, the Court, to implement its decision, adopted former Equity Rule 94, which contained the same provision above quoted from Rule 23 F. R. C. P. The provision in former Equity Rule 94 was later embodied in former Equity Rule 27, of which the present Rule 23 is substantially a copy.

In City of Quincy v. Steel, 1887, 120 U. S. 241, 245, 7 S. Ct. 520, the Court referring to Hawes v. Oakland said: "In order to give effect to the principles there laid down, this Court at that term adopted Rule 94 of the rules of practice for courts of equity of the United States."

Some other cases dealing with former Equity Rules 94 or 27 prior to the decision in Erie R. Co. v. Tompkins are Dimpfel v. Ohio & Miss. R. R., 1884, 110 U. S. 209, 3 S. Ct. 573; Illinois Central R. Co. v. Adams, 1901, 180 U. S. 28, 34, 21 S. Ct. 251; Venner v. Great Northern Ry., 1908, 209 U. S. 24, 30, 28 S. Ct. 328; Jacobson v. General Motors Corp., S. D. N. Y. 1938, 22 F. Supp. 255, 257. These cases generally treat Hawes v. Oakland as establishing a "principle" of equity, or as dealing not with jurisdiction but with the "right" to maintain an action, or have said that the defense under the equity rule is analogous to the defense that the plaintiff has no "title" and results in a dismissal "for want of equity."

Those state decisions which held that a shareholder acquiring stock after the event may maintain a derivative action are founded on the view that it is a right belonging to the shareholder at the time of the transaction and which passes as a right to the subsequent purchaser. See Pollitz v. Gould, 1911, 202 N. Y. 11, 94 N. E. 1088.

The first case arising after the decision in Erie R. Co. v. Tompkins, in which this problem was involved, was Summers v. Hearst, 8. D. N. Y. 1938, 23 F. Supp. 996. It concerned former Equity Rule 27, as Federal Rule 23 was not then in effect. In a well considered opinion Judge Leibell reviewed the decisions and said: "The federal cases that discuss this section of Rule 27 support the view that it states a principle of substantive law." He quoted Pollitz v. Gould, 1911, 202 N. Y. 11, 94 N. E. 1088, as saying that the United States Supreme Court "seems to have been more concerned with establishing this rule as one of practice than of substantive law" but that "whether it be regarded as establishing a principle of law or a rule of practice, this authority has been subsequently followed in the United States courts."

He then concluded that, although the federal decisions treat the equity rule as "stating a principle of substantive law", if former "Equity Rule 27 is to be modified or revoked in view of Erie R. Co. v. Tompkins, it is not the province of this Court to suggest it, much less impliedly to follow that course by disregarding the mandatory provisions of the Rule."

Some other federal decisions since 1938 touch the question.

In Picard v. Sperry Corporation, S. D. N. Y. 1941, 36 F. Supp. 1006, 1009-10, affirmed without opinion, C. C. A. 2d, 1941, 120 F. 2d 328, a shareholder, not such at the time of the transactions complained of, sought to intervene. The court held an intervenor was as much subject to Rule 23 as an original plaintiff; and that the requirement of Rule 23 (b) was "a matter of practice," not substance, and applied in New York where the state law was otherwise, despite Erie R. Co. v. Tompkins. In York v. Guaranty Trust Co. of New York, C. C. A. 2d, 1944, 143 F. 2d 503, rev'd on other grounds, 1945, 65 S. Ct. 1464, the court said: "Restrictions on the bringing of stockholders' actions, such as those imposed by F. R. C. P. 23 (b) or other state statutes are procedural," citing the Picard and other cases.

In Gallup v. Caldwell, C. C. A. 3d, 1941, 120 F. 2d 90, 95, arising in New Jersey, the point was raised but not decided, the court saying that it was not satisfied that the then New Jersey rule differed from Rule 23 (b), and that "under the circumstances the proper course was to follow Rule 23 (b)."

In Mullins v. DeSoto Securities Co., W. D. La. 1942, 45 F. Supp. 871, 878, the point was not decided, because the court found the Louisiana rule to be the same as that stated in Rule 23 (b).

In Toebelman v. Missouri-Kansas Pipe Line Co., D. Del. 1941, 41 F. Supp. 334, 340, the court dealt only with another part of Rule 23 (b), relating to prior demands on the stockholders and did not discuss Erie R. Co. v. Tompkins, or its effect on the rule.

In Perrott v. United States Banking Corp., D. Del. 1944, 53 F. Supp. 953, it appeared that the Delaware law does not require the plaintiff to have owned shares at the time of the transaction complained of. The court sustained Rule 23 (b), after discussion of the authorities, saying:

"It seems to me the rule does not go beyond procedure. Simply because a particular plaintiff cannot qualify as a proper party to maintain such an action does not destroy or even whittle at the cause of action. The cause of action exists until a qualified plaintiff can get it started in a federal court."

In Bankers Nat. Corp. v. Barr, S. D. N. Y. 1945. 9 Fed. Rules Serv. 23b.11, Case 1, the court held Rule 23 (b) to be one of procedure, but that whether the plaintiff was a stockholder was a substantive question to be settled by state law.

The New York rule, as stated in Pollitz v. Gould, supra, has been altered by an act of the New York Legislature, Chapter 667, Laws of 1944, effective April 9, 1944, General Corporation Law, § 61, which provides that “in any action brought by a shareholder in the right of a... corporation, it must appear that the plaintiff was a stockholder at the time of the transaction of which he complains, or that his stock thereafter devolved upon him by operation of law." At the same time a further and separate provision was enacted, requiring under certain circumstances the giving of security for reasonable expenses and attorney's fees, to which security the corporation in whose right the action is brought and the defendants therein may have recourse. (Chapter 668, Laws of 1944, effective April 9, 1944, General Corporation Law, § 61-b.) These provisions are aimed at so-called "strike" stockholders' suits and their attendant abuses. Shielcrawt v. Moffett, Ct. App. 1945, 294 N. Y. 180, 61 N. E. 2d 435, rev'g 51 N. Y. S. 2d 188, aff'g 49 N. Y. S. 2d 64; Noel Associates, Inc. v. Merrill, Sup. Ct. 1944, 184 Misc. 646, 63 N. Y. S. 2d 143.

Insofar as § 61 is concerned, it has been held that the section is procedural in nature. Klum v. Clinton Trust Co., Sup. Ct. 1944, 183 Misc. 340, 48 N. Y. S. 2d 267; Noel Associates, Inc. v. Merrill, supra. In the latter case the court pointed out that "The 1944 amendment to Section 61 rejected the rule laid down in the Pollitz case and substituted, in place thereof, in its precise language, the rule which has long prevailed in the Federal Courts and which is now Rule 23 (b) . . ." There is, nevertheless, a difference of opinion regarding the application of the statute to pending actions. See Klum v. Clinton Trust Co., supra (applicable); Noel Associates, Inc. v. Merrill, supra (inapplicable).

With respect to § 61-b, which may be regarded as a separate problem, Noel Associates, Inc. v. Merrill, supra, it has been held that even though the statute is procedural in nature-a matter not definitely decided-the Legislature evinced no intent that the provision should apply to actions pending when it became effective. Shielcrawt v. Moffett, supra. As to actions instituted after the effective date of the legislation, the constitutionality of § 61-b is in dispute. See Wolf v. Atkinson, Sup. Ct. 1944, 182 Misc. 675, 49 N. Y. S. 2d 703 (constitutional); Citron v. Mangel Stores Corp., Sup. Ct. 1944, 50 N. Y. S. 2d 416 (unconstitutional); Zlinkoff, The American Investor and the Constitutionality of Section 61-B of the New York General Corporation Law, 1945, 54 Yale L. J. 352.

New Jersey also enacted a statute, similar to Chapters 667 and 668 of the New York law. See P. L. 1945, Ch. 131, R. S. Cum. Supp. 14:3-15. The New Jersey provision similar to Chapter 668, § 61-b, differs, however, in that it specifically applies retroactively. It has been held that this provision is procedural and hence will not govern a pending action brought against a New Jersey corporation in the New York courts. Shielcrawt v. Moffett, Sup. Ct. N. Y. 1945, 184 Misc. 1074, 56 N. Y. S. 2d 134.

See also generally, 2 Moore's Federal Practice, 1938, 22502253, and Cum. Supplement § 23.05.

The decisions here discussed show that the question is a debatable one, and that there is respectable authority for either view, with a recent trend towards the view that

Rule 23 (b) (1) is procedural.

There is reason to say

that the question is one which should not be decided by the Supreme Court ex parte, but left to await a judicial decision in a litigated case, and that in the light of the material in this note, the only inference to be drawn from a failure to amend Rule 23 (b) would be that the question is postponed to await a litigated case.

The Advisory Committee is unanimously of the opinion that this course should be followed.

If, however, the final conclusion is that the rule deals with a matter of substantive right, then the rule should be amended by adding a provision that Rule 23 (b) (1) does not apply in jurisdictions where state law permits a shareholder to maintain a secondary action, although he was not a shareholder at the time of the transactions of which he complains.

CROSS REFERENCES

Capacity of unincorporated association to sue or be sued, see rule 17 (b).

Process on corporations in stockholder's derivative action, see section 1695 of this title.

Venue in stockholder's derivative action, see section 1401 of this title.

RULE 24.-INTERVENTION

(a) Intervention of right.

Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof.

(b) Permissive Intervention.

Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

(c) Procedure.

A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of the United States gives a right to intervene. When the constitutionality of an act of Congress affecting the public interest is drawn in question in any action to which the United States or an officer, agency, or employee thereof is not a party, the court shall notify the Attorney General of the United States as provided in Title 28, U.S.C., § 2403. As amended Dec. 27, 1946; Dec. 29, 1948, effective Oct. 20, 1949; Jan. 21, 1963, effective July 1, 1963.

§ 276a-2 (b) (Bonds of contractors for public buildings or works; rights of persons furnishing labor and materials). Compare with the last sentence of former Equity Rule 37 (Parties Generally-Intervention). This rule amplifies and restates the present federal practice at law and in equity. For the practice in admiralty see Admiralty Rules 34 (How Third Party May Intervene) and 42 (Claims Against Proceeds in Registry). See generally Moore and Levi, Federal Intervention: I The Right to Intervene and Reorganization (1936), 45 Yale L. J. 565. Under the codes two types of intervention are provided, one for the recovery of specific real or personal property (2 Ohio Gen. Code Ann. (Page, 1926) § 11263; Wyo. Rev. Stat. Ann. (Courtright, 1931) § 89-522), and the other allowing intervention generally when the applicant has an interest in the matter in litigation (1 Colo. Stat. Ann. (1935) Code Civ. Proc. § 22; La. Code Pract. (Dart, 1932) Arts. 389-394; Utah Rev. Stat. Ann. (1933) § 104-3-24). The English intervention practice is based upon various rules and decisions and falls into the two categories of absolute right and discretionary right. For the absolute right see English Rules Under the Judicature Act (The Annual Practice, 1937) O. 12, r. 24 (admiralty), r. 25 (land), r. 23 (probate); O. 57, r. 12 (execution); J. A. (1925) §§ 181, 182, 183 (2) (divorce); In re Metropolitan Amalgamated Estates, Ltd., (1912) 2 Ch. 497 (receivership); Wilson v. Church, 9 Ch. D. 552 (1878) (representative action). For the discretionary right see O. 16, r. 11 (nonjoinder) and Re Fowler, 142 L. T. Jo. 94 (Ch. 1916), Vavasseur v. Krupp, 9 Ch. D. 351 (1878) (persons out of the jurisdiction).

NOTES OF ADVISORY COMMITTEE ON 1946 AND 1948 AMENDMENTS TO RULE

Note.

Subdivision (a). The addition to subdivision (a) (3) covers the situation where property may be in the actual custody of some other officer or agency-such as the Secretary of the Treasury-but the control and disposition of the property is lodged in the court wherein the action is pending.

Subdivision (b). The addition in subdivision (b) permits the intervention of governmental officers or agencies in proper cases and thus avoids exclusionary constructions of the rule. For an example of the latter, see Matter of Bender Body Co., Ref. Ohio 1941, 47 F. Supp. 224, aff'd as moot, N. D. Ohio 1942, 47 F. Supp. 224, 234, holding that the Administrator of the Office of Price Administration, then acting under the authority of an Executive Order of the President, could not intervene in a bankruptcy proceeding to protest the sale of assets above ceiling prices. Compare, however, Securities and Exchange Commission v. United States Realty & Improvement Co., 1940, 310 U. S. 434, 60 S. Ct. 1044, where permissive intervention of the Commission to protect the public interest in an arrangement proceeding under Chapter XI of the Bankruptcy Act was upheld. See also dissenting opinion in Securities and Exchange Commission v. Long Island Lighting Co., C. C. A. 2d, 1945, 148 F. 2d 252, judgment vacated as moot and case remanded with direction to dismiss complaint, 1945, 325 U. S. 833, 65 S. Ct. 1085. For discussion see Commentary, Nature of Permissive Intervention Under Rule 24b, 1940, 3 Fed. Rules Serv. 704; Berger, Intervention by Public Agencies in Private Litigation in the Federal Courts, 1940, 50 Yale L. J. 65.

Regarding the construction of subdivision (b) (2), see Allen Calculators, Inc. v. National Cash Register Co., 1944, 322 U. S. 137, 64 8. Ct. 905.

(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons, and may be served in any judicial district. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

(2) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.

(b) Incompetency.

If a party becomes incompetent, the court upon motion served as provided in subdivision (a) of this rule may allow the action to be continued by or against his representative.

(c) Transfer of interest.

In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule.

(d) Public Officers; Death or Separation from Office. (1) When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.

(2) When a public officer sues or is sued in his official capacity, he may be described as a party by 36-500 0-65—vol. 7—19

his official title rather than by name; but the court may require his name to be added. As amended Dec. 29, 1948, effective Oct. 20, 1949; Apr. 17, 1961, effective July 19, 1961; Jan. 21, 1963, effective July 1, 1963.

NOTES OF ADVISORY COMMITTEE ON RULES

Note to Subdivision (a). 1. The first paragraph of this rule is based upon former Equity Rule 45 (Death of Party-Revivor) and U. S. C., Title 28, former § 778 (Death of parties; substitution of executor or administrator). The scire facias procedure provided for in the statute cited is superseded and the writ is abolished by Rule 81 (b). Paragraph two states the content of U. S. C., Title 28, former § 779 (Death of one of several plaintiffs or defendants). With these two paragraphs compare generally English Rules Under the Judicature Act (The Annual Practice, 1937) O. 17, r. r. 1-10.

2. This rule modifies U. S. C., Title 28, former §§ 778 (Death of parties; substitution of executor or administrator), 779 (Death of one of several plaintiffs or defendants), and 780 (Survival of actions, suits, or proceedings, etc.) insofar as they differ from it.

Note to Subdivisions (b) and (c). These are a combination and adaptation of N. Y. C. P. A. (1937) § 83 and Calif. Code Civ. Proc. (Deering, 1937) § 385; see also 4 Nev. Comp. Laws (Hillyer, 1929) § 8561.

Note to Subdivision (d). With the first and last sentences compare U. S. C., Title 28, former § 780 (Survival of actions, suits, or proceedings, etc.). With the second sentence of this subdivision compare Ex parte La Prade, 289 U. S. 444, 53 S. Ct. 682, 77 L. Ed. 1311 (1933). AMENDMENTS

1948-The amendment effective October 19, 1949, inserted the words, "the Canal Zone, a territory, an insular possession," in the first sentence of subdivision (d), and, in the same sentence, after the phrase "or other governmental agency," deleted the words, "or any other officer specified in the act of February 13, 1925, ch. 229, § 11 (43 Stat. 941), formerly section 780 of this title." NOTES OF ADVISORY COMMITTEE ON 1961 AMENDMENTS TO RULES

Subdivision (d)(1). Present Rule 25(d) is generally considered to be unsatisfactory. 4 Moore's Federal Practice 25.01[7] (2d ed. 1950; Wright, Amendments to the Federal Rules: The Function of a Continuing Rules Committee, 7, Vand.L.Rev. 521, 529 (1954); Developments in the Law-Remedies Against the United States and Its Officials, 70 Harv.L.Rev. 827, 931-34 (1957). To require, as a condition of substituting a successor public officer as a party to a pending action, that an application be made with a showing that there is substantial need for continuing the litigation, can rarely serve any useful purpose and fosters a burdensome formality. And to prescribe a short, fixed time period for substitution which cannot be extended even by agreement, see Snyder v. Buck, 340 U.S. 15, 19 (1950), with the penalty of dismissal of the action, "makes a trap for unsuspecting litigants which seems unworthy of a great government." Vibra Brush Corp. v. Schaffer, 256 F.2d 681, 684 (2d Cir. 1958). Although courts have on occasion found means of undercutting the rule, e.g. Acheson v. Furusho, 212 F. 2d 284 (9th Cir. 1954) (substitution of defendant officer unnecessary on theory that only a declaration of status was sought), it has operated harshly in many instances, e.g. Snyder v. Buck, supra; Poindexter v. Folsom, 242 F. 2d 516 (3d Cir. 1957). Under the amendment, the successor is automatically substituted as a party without an application or showing of need to continue the action. An order of substitution is not required, but may be entered at any time if a party desires or the court thinks fit.

The general term "public officer" is used in preference to the enumeration which appears in the present rule. It comprises Federal, State, and local officers.

The expression "in his official capacity" is to be interpreted in its context as part of a simple procedural rule for substitution; care should be taken not to distort its meaning by mistaken analogies to the doctrine of sovereign immunity from suit or the Eleventh Amend ment. The amended rule will apply to all actions brought

by public officers for the government, and to any action brought in form against a named officer, but intrinsically against the government or the office or the incumbent thereof whoever he may be from time to time during the action. Thus the amended rule will apply to actions against officers to compel performance of official duties or to obtain judicial review of their orders. It will also apply to actions to prevent officers from acting in excess of their authority or under authority not validly conferred, cf. Philadelphia Co. v. Stimson, 223 U.S. 605 (1912), or from enforcing unconstitutional enactments, cf. Ex parte Young, 209 U.S. 123 (1908); Ex parte La Prade, 289 U.S. 444 (1933). In general it will apply whenever effective relief would call for corrective behavior by the one then having official status and power, rather than one who has lost that status and power through ceasing to hold office. Cf. Land v. Dollar, 330 U.S. 731 (1947); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949). Excluded from the operation of the amended rule will be the relatively infrequent actions which are directed to securing money judgments against the named officers enforceable against their personal assets; in these cases Rule 25(a)(1), not Rule 25(d), applies to the qeustion of substitution. Examples are actions against officers seeking to make them pay damages out of their own pockets for defamatory utterances or other misconduct in some way related to the office, see Barr v. Matteo, 360 U.S. 564 (1959); Howard v. Lyons, 360 U.S. 593 (1959); Gregoire v. Biddle, 177 F. 2d 579 (2d Cir. 1949), cert. denied, 339 U.S. 949 (1950). Another example is the anomalous action for a tax refund against a collector of internal revenue, see Ignelzi v. Granger, 16 F.R.D. 517 (W.D. Pa. 1955), 28 U.S.C. § 2006, 4 Moore, supra, 25.05, p. 531; but see 28 U.S.C. § 1346(a)(1), authorizing the bringing of such suits against the United States rather than the officer.

Automatic substitution under the amended rule, being merely a procedural device for substituting a successor for a past officeholder as a party, is distinct from and does not affect any substantive issues which may be involved in the action. Thus a defense of immunity from suit will remain in the case despite a substitution.

Where the successor does not intend to pursue the policy of his predecessor which gave rise to the lawsuit, it will be open to him, after substitution, as plaintiff to seek voluntary dismissal of the action, or as defendant to seek to have the action dismissed as moot or to take other appropriate steps to avert a judgment or decree. Contrast Ex parte La Prade, supra; Allen v. Regents of the University System, 304 U.S. 439 (1938); McGrath v. National Assn. of Mfgrs., 344 U.S. 804 (1952); Danenberg. v. Cohen, 213 F. 2d 944 (7th Cir. 1954).

As the present amendment of Rule 25(d)(1) eliminates a specified time period to secure substitution of public officers, the reference in Rule 6(b) (regarding enlargement of time) to Rule 25 will no longer apply to these public-officer substitutions.

As to substitution on appeal, the rules of the appellate courts should be consulted.

Subdivision (d) (2). This provision, applicable in "offcial capacity" cases as described above, will encourage the use of the official title without any mention of the officer individually, thereby recognizing the intrinsic character of the action and helping to eliminate concern with the problem of substitution. If for any reason it seems desirable to add the individual's name, this may be done upon motion or on the court's initiative; thereafter the procedure of amended Rule 25(d) (1) will apply if the individual named ceases to hold office.

For examples of naming the office or title rather than the officeholder, see Annot., 102 A.L.R. 943, 948-52; Comment, 50 Mich. L. Rev. 443, 450 (1952); cf. 26 U.S.C. § 7484. Where an action is brought by or against a board or agency with continuity of existence, it has been often decided that there is no need to name the individual members and substitution is unnecessary when the personnel changes. 4 Moore, supra, 25.09, p. 536. The practice encouraged by amended Rule 25(d) (2) is similar. NOTES OF ADVISORY COMMITTEE ON 1963 AMENDMENTS TO RULES

Present Rule 25(a) (1), together with present Rule 6(b), results in an inflexible requirement that an action be dis

missed as to a deceased party if substitution is not carried out within a fixed period measured from the time of the death. The hardships and inequities of this unyielding requirement plainly appear from the cases. See e.g., Anderson v. Yungkau, 329 U.S. 482, 67 S. Ct. 428, 91 L. Ed. 436 (1947); Iovino v. Waterson, 274 F. 2d 41 (1959), cert. denied, Carlin v. Sovino, 362 U.S. 949, 80 S. Ct. 860, 4 L. Ed. 2d 867 (1960); Perry v. Allen, 239 F. 2d 107 (5th Cir. 1956); Starnes v. Pennsylvania R.R., 26 F.R.D. 625 (E.D.N.Y.), aff'd per curiam, 295 F. 2d 704 (2d Cir. 1961), cert. denied, 369 U.S. 813, 82 S. Ct. 688, 7 L. Ed. 2d 612 (1962); Zdanok v. Glidden Co., 28 F.R.D. 346 (S.D.N.Y. 1961). See also 4 Moore's Federal Practice ¶ 25.01[9] (Supp. 1960); 2 Barron & Holtzoff, Federal Practice & Procedure § 621, at 420-21 (Wright ed. 1961).

The amended rule establishes a time limit for the motion to substitute based not upon the time of the death, but rather upon the time information of the death as provided by the means of a suggestion of death upon the record, i.e. service of a statement of the fact of the death. Cf. Ill. Ann. Stat., ch. 110, § 54(2) (Smith-Hurd 1956). The motion may not be made later than 90 days after the service of the statement unless the period is extended pursuant to Rule 6(b), as amended. See the Advisory Committee's Note to amended Rule 6(b). See also the new Official Form 30.

A motion to substitute may be made by any party or by the representative of the deceased party without awaiting the suggestion of death. Indeed, the motion will usually be so made. If a party or the representative of the deceased party desires to limit the time within which another may make the motion, he may do so by suggesting the death upon the record.

A motion to substitute made within the prescribed time will ordinarily be granted, but under the permissive language of the first sentence of the amended rule ("the court may order") it may be denied by the court in the exercise of a sound discretion if made long after the death-as can occur if the suggestion of death is not made or is delayed-and circumstances have arisen rendering it unfair to allow substitution. Cf. Anderson v. Yungkau, supra, 329 U.S. at 485, 486, 67 S. Ct. at 430, 431, 91 L. Ed. 436, where it was noted under the present rule that settlement and distribution of the estate of a deceased defendant might be so far advanced as to warrant denial of a motion for substitution even though made within the time limit prescribed by that rule. Accordingly, a party interested in securing substitution under the amended rule should not assume that he can rest indefinitely awaiting the suggestion of death before he makes his motion to substitute.

CROSS REFERENCES

Depositions, right to use after substitution, see rule 26 (d). Extension of time for substitution, prohibiting, see rule 6 (b).

V.-DEPOSITIONS AND DISCOVERY

RULE 26.-DEPOSITIONS PENDING ACTION (a) When depositions may be taken.

Any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes. After commencement of the action the deposition may be taken without leave of court, except that leave, granted with or without notice, must be obtained if notice of the taking is served by the plaintiff within 20 days after commencement of the action. The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 45. Depositions shall be taken only in accordance with these rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.