Cornell University Library KF 8870.B64 1894 A treatise upon the law of pleading :und 3 1924 020 173 617 QJnrnfU ICam i^rlynnl SItbtary Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020173617 A TREATISE UPON THE LAW OF PLEADING UNDER THE CODES OF CIVIL PROCEDURE OF THE STATES OF New York, CoNNECTrcuT, North Carolina, South Carolina, Onto, Indiana, Kentucky, Wisconsin, Minnesota, Iowa, Missouri, Arkansas, Kansas, Nebraska, California, Nevada, Oregon, Colorado, Washington, North Da- kota, South Dakota, Montana, Idaho, Wyoming, and the Territories op Arizona and Utah. BY PHILEMON BLISS, LL. D. Professor of Law in the Missouri State University, and late Judge of the Supreme Court of Missouri THIRD EDITION REVISED AND ANNOTATED BY E. F. JOHNSON, B. S., LL. M. Instructor of Law in the University of Michigan St. Paul, Minn. WEST PUBLISHING CO. 1894 Entered according to Act of Congress, in the year 1S87, by PHILEMON BLISS, LL. D., In the Office of the Librarian of Congress, at Wasliington. COPTEIOHT, 1894, BY WEST PUBLISHING COMPANY. PREFACE TO THIRD EDITION". Many attempts have been made to include in one volume a comprehensive and philosophical treatment of the general prin- oipies of Code Pleading. This has been done by each of the various authors with greater or less success. A text-book, to be of the greatest service to the student, should contain a clear and full statement of the fundamental underlying principles of the subject of which it treats, with just sufficient simple illustrations to show the application of. those principles. The student should have a general idea of the fundamentals of the law before he commences the study of pleadings. He should first fully understand when and under what circumstances resort may be had to the courts for relief, and when he fully comprehends what facts in each case must exist as a pre- requisite to his right of recovery, then he is prepared to under- stand the rules relating to the statement of those facts. One of the greatest difficulties in the drafting of the pleadings, which the lawyer encounters, is to determine the exclusive facts which entitle him to recover at the hands of the court. The work of Judge Bliss on the subject of Code Pleading was a pioneer in this field. It was written with special reference to the needs of the student, and was published in 1878. His philosophical, logical, and analji-tical treatment of this new sub- ject brought the work at once into prominence, and secured the favor of both the active practitioners and the instructors in the various law schools. It has passed into its second edition. Judge Bliss sets forth the true spirit of the new system, and many of his theories have become the rule of the courts and have hemmaacted into law in various states. In the discussion of the Wnciples underlying this new subject he constantly BLISS CODE PL. (l'') IV PREFACE TO THIRD EDITION. contrasted them with the other systems of pleading (the com- mon-law and the equity), so that the student would be better able to understand the new rule, as well as to gaiu a clearer- view of the old. The friends of the code system of pleading have never claimed for it that it was an improvement upon the common-law sys- tem further than it simplified that system. The common-law system of pleading was (and is) certainly a logical one, and but- for the fact that the multiplied forms have been clothed in a. great deal of useless verbiage and meaningless phrases, so that the courts had come to regard the form rather than the substance^ the new system would never have been inaugurated and adopted: in its stead in any of the jurisdictions. The best evidence of this fact is that the strict common-law system of pleading to- day nowhere exists. It is greatly modified wherever adhered to. Even England, the mother of this system, has abandoned it, and has adopted (in 1873) a reformed system. No apology is offered for presenting this third edition of a. work so valuable and so complete. The use of this work as a text-book for four years has led the editor to the belief that a short and terse statement of the principles contained in a paragraph, printed in black type in a separate sentence- immediately preceding the paragraph, will not only greatlj' facilitate a full understanding of the subject therein discussed, but will have great influence in inducing an enthusiasm for investigation on the part of the student. Otherwise the text of the author is substantially preserved in all respects. In the notes a great many new topics of recent development are con- sidered and discussed, and all recent important cases are cited, besides which a great number of "leading cases'" are cited and. printed in large type, which are intended for special investiga- tion by the student with reference to the following topics: (a) Date and title of the case; (b) the principal facts; (c) the point in issue; (d) the argument of the court; (e) the conclusion or decision. A leading case — one exactly in point, and one which has been cited and approved by courts of high authority — is PREFACE TO THIRD EDITION. V the special instrument of warfare of the lawyer actively engaged in his profession. It is thought, therefore, that the student should make himself familiar with as many of them as possible, covering the most general rules during his course. Several years of experience as an instructor upon the subject of pleading has taught the editor that many students will mas- ter the general principles and rules of the subject, and be com- petent to pass a very thorough examination upon the same, without being able to put one of them into practice. It was -deemed wise, therefore, by the editor, to add a few approved forms for the more simple and general causes of action in the notes, not for the purpose of having the student learn them (for no forms are required under the code), but to give him some accurate idea of the general language employed and the manner of expression. ELIAS F. JOHNSON. Akn Abbok, October 1, 1894. PREFACE TO SECOND EDITION. The fl:ittei'ing recepliou given to this woris: by the Bench and Bar of the Code states iiiis encouraged me to prepare a second edition. I have revised the original text, sought to condense by throwing out useless words and phrases, have added a few where the sense was not obvious, have cited many of the new ca^^es that have come under my observa- tion and have added over thirty new sections covering important points. I have coi'rected some errors and have rewritten a few old sections so as to make the reasoning more satisfactory. In citing Code cases, I have, as before, confined myself to the states, omitting some, in themselves valuable, found in territorial reports. This has not been done from want of appreciation of the character and rapidly growing impor- tance of our territorial organizations, but the crowding authorities have compelled mo to draw the line somewhere. For the same reason I have ceased to pursue the many triat courts in New York, and for new cases in that State, have confined myself to the Court of Appeals. I have retained the old statutory citations, adding, however, references to- new revisions, when the section numbers have been changed. Florida, cited in the first edition, has repealed its Prac- tice Code, while Connecticut has adopted the leading features, so far as concerns pleadings, of the New York system. A few other States have, long since, so changed the common law in this regard that the pleadings are chiefly statutory, while in Texas, the system, as followed, BLISS CODK PL. ('") viii PREFA-CE TO SECOND EDITION. comes so near that of the Code states, that I have been strongly tempted to embrace it among them. The com- mon law was early adopted in that state, expressly except- ing the law of pleadings. This left the courts, with but little in the statute upon the subject, to the guidance of the Mexican or Spanish system which had its origin in the source of our equity pleadings whose rules form the basis of the Codes. It is no wonder then that we find the unwritten rules that govern pleadings in Texas almost the same as those reduced to writing in the Code states. P. BLISS. State Universitt, Columbia, Missouri, January 1, ISUT. PREFACE TO FIRST EDITION. Instead of looking upon the code system of pleading, so called, as rationalizing that of the common l;iw, as still being precise and rigid in its requirements, but as basing them upon the strict rules of logic applied to the facts and the legal principles involved, instead of a logic founded, to a great extent, upon forms, formulas, and fictions, it is often, if not generally, regarded as an abandonment of all systems. The law of pleading, when following the com- mon-law mode of statement, commanded the earnest atten- tion of every student. No one felt himself prepared to ■enter even upon the threshold of the profession until he had mastered the subject, and to be a good pleader gave one an advantage and a rank among his fellows to be acquired by no other single accomplishment. But the new system has by many been supposed to be so simple as to require no previous study. All forms are abolished. It is presumed that any one can state the facts which consti- tute his cause of action in ordinary and concise language, ^nd, with this idea, young men rush to the bar without any intelligent conception of the multitude of questions involved in a statement of a cause of action, or in meeting such statement. It is bad enough for those who have a reasonably good academic education ; how much worse for those who crowd the profession without any adequate knowlcdo-e of language, and with but the faintest notion as to sequence of ideas. They might learn something of forms, and would be compelled to under the old system; but logi- BLISS CODE PL. (iX) X PREFACE TO FIRST EDITION. cal conceptions connected with the substantive facts of each case involve something more than forms, and the power to grasp them seldom comes by nature. It is much easier for a person of dull apprehension to become a tolerably good pleader under the old system than under the new. Influenced by these considerations, upon the opening of the Law Department of the Missouri State University, I determined to give special attention to the subject of plead- ing, and in pursuance of this design, in addition to the study of the common-law and equity systems, I have given a yearly course of lectures upon the changes made by the Code. Encouraged by the solicitations of those who had heard the lectures, as well as the suggestions of some of the leadinsr members of the Missouri bar, I soon determined to embody the substance in a Treatise upon pleading appli- cable to ail the states whose system conforms substantially to that of New York. "With this view I examined the sev- eral Codes of Procedure, and the local decisions concerning them, arranged the plan of the work, and had a little more than half completed it when the Treatise of Mr. Pomeroy appeared. Its perusal gave me the liveliest pleasure ; I felt that a great want had been supplied, suspended my owii work, and it was a long time before I could obtain my own consent to resume it for other than class purposes. With regard to the manner of discussing the subject, I have had a twofold object in view : first, to make the work a practical one by giving the rulings of the courts when called on to give a construction to the provisions of the Code, and also to aid the bar in viewing the new system from a scien- tific stand-point by giving the foundation and object of its rules; and to this end I have not hesitated to criticise judi- cial views when they did not seem in harmony with the system. Wo have two classes of text-books — digests and PREFACE TO FIRST EDITION. commentaries ; the object of one being to embody judicial opinion upon given subjects, and of the other, to discuss principles, although always with deference to such opinion. The brief period since the adoption of the new system in some of the leading States — long enough, one would think, yet brief compared with the reign of the old — has not afforded time for a full settlement of the questions in- volved. It took centuries to crystallize the common-law system, and with no disturbance from independent jurisdic- tions, while th;it we are now considering has been followed, even in New York, but a little over twenty-five years, and in most of the states for a much shorter period. Instead of a single authoritative tribunal, whose decisions alone are reported, we have had, and still have, in New York alone, the Supreme Court, with its many circuits, and the courts of New York City, all whose decisions, with their multitude of judges and necessarily conflicting opinions, are regularly reported. Then we have the appellate court of the state, and the appellate courts of seventeen other states whose Codes of Procedure conform substantially to that of New York, each ex cathedra delivering opinions by the volume. There has been more harmony than could have been ex- pected, and yet there has been har^^h discord. There has been not only a want of harmony, but almost a universal halting, in fully accepting the new system with all its logical sequences, and the chief reason — that which rendered it impossible at once to appi'eciate the full scope of the change — was the fact that the profession had be- come saturated with the learning of the old. It was uni- versally looked upon as embodying the perfection of logical statement, and there was hardly an English or American writer upon general jurisprudence who could resist the temptation to go out of his way to eulogize it. Its logical Xll PKEFACE TO FIRST EDITION. character, its singleness of issue, — a mere form when ten- dered by the general issue, — its artificiiil style, its classi- fication of actions with corresponding formulas, even the fatal effect of an error in selecting a form of action which ought in no way to aflect the plaintiff's right or the defend- ant's liability, and other peculiarities of a merely technical and artificial character, were themes of universal praise. It is no wonder that the legal mind became inspired with reverence for the system, and that propositions for dis- turbing it seemed like attacking the bulwarks of the law itself. When bold reformers succeeded in so influencing legislation as to effect the change, they did not always find a corresponding sympathy in the courts, and it is believed that a majority of the judges in the several states viewed it with disfavor. Familiarized with the technics and formulas of a system to a large extent artificial, deeply impressed with its real excellencies, and confounding with them what was merely formal, at home upon all quesitions that could arise under it, it is no wonder that so many looked upon its loss as upon the burial ofan old friend, and upon the novel substitute with timidity and distrust. Most, perhaps all, have sought in good faith to give effect to the new legislation, but it would be too much to expect at once a cordial sympathy; far too much to look for an immediate surrender of habits of thought that have become part of their intellectual consti- tution. It is right, it is necessary, under our system, that judicial opinion should be treated with more than mere respect. It is one of the recognized evidences of law. It is called inter- pretation ; it is almost legislation. The courts are not un- frequently called on to apply principles to new classes of facts, and thus to make new rules — analogous they should be to the old, but still they are new. And they are some- PUEFACE TO FIRST EDITION. XUl times called on, in view of new conditions, new develop- ments, 01" enlarged ideas of justice, to change those which have been hitherto followed. The instincts of the bar and the bench are eminently conservative, and there is little danger of going too fast or too far in this direction. Courts sometimes, and especially when judges are chosen by politi- cal caucuses, are expected to echo party or popular sentiment, and without much regard to hiw or justice ; but the instunces where they have thus yielded are exccjitions. That rev- erence for law which has so distinguished English-speaking peoples, and without which free government is impossible, has hitherto preserved us from many gross instances of the betrayal of judicial trusts. Courts are far more prone to look with jealousy upon radical legislation, and to limit as much as possible the scope of fundamental changes. The statute expressly requires that the provisions of the Code shall be construed liberally in furtherance of its ends, and still, the notion that statutory changes in the common law must be construed strictly has become so ingrained ia the legal mind, as, in spite of the requirement, to be often un- consciously applied to the Code. To this conservatism, as well as the disfavor or timidity with wliich the new system was received, we owe the fact that some of the rules pecul- iar to that of the common law, and opposed to the spirit of the new, are still cheri?hed by some of our best courts. Judicial opinion is becoming more and more harmonious ; it; will necessarily follow the progress of the bar; and, to aid in viewing the new rules from a rational stand-point, I ha^e felt at liberty occasionally to give my own conclusions ■with more freedom, although differing from the conclu- sions of some who, for the time, arc clothed with judicial power, than I would have ventured to take in.rcgaid to any other title of the law. XIV PREFACE TO FIRST EDITION. The author fully appreciated the difficulty in procuring the full appreciation of a system apparently new, and an- ticipating the subsequent confusion, would have preferred such a modification of the old as has been adopted in Eng- land. But this system is in fact not new; it is not even wholly so as compared with that of the common law, and scarcely a rule is embodied in it, the substance of which had not long prevailed in the courts of equity. This fact it seems almost impossible to appreciate, and the chief trouble has arisen from forgetting it, from viewing the Code in the light of common-law learning, from not being able at once to take in the idea that a statement of facts which consti- tute a cause of action instituted for the recovery of money, or of specific property, can be governed by the same rules; so far as applicable, that control the pleader when seeking equitable relief. And yet we no longer have the bill in chancery. The common-law and equity systems converge in that of the Code. We have the frame-work, the direct- ness, of the former, its different statements or counts, its ultimate instead of probative facts, and the truthfulness, the reasonableness, the realness of the latter. I have given no precedents. Indeed, had I room, I know not how they could be of much real service. The pleader has to do with substance and not with forms. There are no ^' approved modes of expression " to be copied ; no formal general statements which are assumed to cover the cause of action whether they do or not ;. no formulas or fictions as applied to, and to distinguish, different forms of action ; no crystallized modes of opening and closing ; no constantly re- curring venue, whether real or fictitious ; and it was chiefly these which rendered precedents necessary. It is more necessary than before for the pleader to be a good and care- ful lawyer; also that he should he able to write good Eng- PREFACE TO FIRST EDITION. XV lisli. His knowledge must be substantial, and, in studying. his statement, he studies his case. He must know what issuable facts will constitute a cause of action, and must put them on paper, and put there nothing else. One who be- comes thoroughly familiar with the principles illustrated in this work cannot but become a good pleader — that is, if he understands his case. But an occasional reference will not answer. He must study them, and with the earnestness formerly brought to bear upou Gould, Stephen, Chitty, Mitford, and Story. I have endeavored to avoid questions of practice, except where their consideration seems to be necessary, as in treating of remedies for defective pleading. My orig- inal purpose was, after the manner of Mr. Stephen, to give, in a separate part, the proceedings in an action, and I went so far as to write it out. But I have been induced to omit it ; first, because it would swell the book to an inconvenient size, my desire being to makei it as small and convenient to handle as is consistent with its object ; second, the fact that practice and pleadings are distinct subjects, though closely allied ; and, third, the me llulings not classified. 383. The equitable Set-off. 383a. Continued — ^Illustrations. 381. Continued. 384a. Counter-claims— How limited in number. 385. Some so-called equitable Counter-claims are really Defen.^ies. 3S5a. Some Counter-demands may operate either as Defenses or Coun- ter-claims. 386. A judicial Limitation upon Counter-claims made in New York. 387. Continued— Other Cases. 388. The View elsewhere. 389. Upon what is the Qualification based? 390. Cross-complaints or Petitions. CHAPTER XX. OF THE KEPLY. Section 393. The Statutes— Their General Provisions. 394. New Assignment— At common Law— Under the Code. 395. The Reply to Defenses of Fraud, etc., in negotiable Paper. 396. Departure— Remedy. 397. Some general Considerations. CHAPTER XX. OF THE REMEDIES FOR DEFECTIVE PLEADING. Section 401. Object of this Chapter. 402. Common-law and Equity Remedies— Demurrer defined— Pleas in Abatement. 403. Remedies under the Codes— Special Pleas abolished. 1. The Demurrer. 404. Its Object and Scope under the Code. 405. 1 — First, that the Court has no Jurisdiction over the Pevwon of the Defendant. 406. Second, that the Court has no Jurisdiction over the subject of the Action. 407. 2— That the Plaintiff has not legal Capacity to sue. 408. Continued. BLISS CODE PL. — e XXXIV TABLE OF CONTENTS. ■ Section 408a. Continued— What ground should be stated as to Corporations. 409. Continued— As to showing PlaintifE's Representative Character. 409a. Continued— As to Defective Authority. 410. 3— That there is another Action pending betvs'een the same Parties for the same Cause. 411. 4— That there is a Defect of Parties, Plaintiff or Defendant 41^ 5— That several Causes of Action are improperly united. 413. 6— That the Complaint (Petition) does not state Facts sufficient to constitute a Cause of Action. 414. Continued— As to improper Parties. 414a. Continued— As to the Statute of Limitations- Common-law, equity, and code Rules. 415. Additional Grounds in certain States —Who may raise the Ob- jection. 416. The Demurrer must distinctly specify the Grounds of Objection —Generally sufficient to state them in Language of Statute. 417. Some general Considerations. 417a. A Demurrer runs through the Record. 418. What does a Demurrer admit? ■ 2. Answers. 419. Defects met by Answer. 3. Motions. 420. Most formal Defects met by Motion— Judgment and Order dis- tinguished. 421. Motion to strike out a frivolous Pleading— Defined— Illustra- tions. 422. Sham Pleading— Defined— Illustrations— Remedy. 423. Irrelevant and redundant Matter— Defined— Remedy. 424. Continued — Answers — Duplicity — Remedy. 425. Uncertainty— Statutory Provisions— Remedy. 42."ia. Uncertainty not Ground for Demurrer. 42c;. In Respect to filing the Writing sued on. 427. Misnomer— The Remedy. 427a. Can the Question be raised by Answer? 4. Amendinenls. 428. Amendments discretionary— Without Leave of Court— With Leave of Court. 429. Limitations upon the power of Amendment. 430. Continued— As to Defenses. 431. Continued— As to unconscionable Defenses— Old Rule abolished. 432. Supplemental Pleadings— Purpose— Cause of Action cannot be changed by— Leave to file must be obtained. 433. Continued. TABLE OF CONTENTS. XXXV CHAPTER XXI. DEFECTIVE PLEADING— HOW CURED. Section 435. The Basis of the Doctrine. 430. Defects that are Grounds of DemuiTer. 437. Aider by the Pleading of the opposite Party. 438. Intendment after ^Verdict. 439. Continued. 440. Statutes in aid of defective Pleading. 441. The more specific enumeration of Defects cured. 442. Aider after Verdict, as held under the Codes. CHAPTER XXII. [Additional Chapter by Prof. E. F. Johnson, Editor of the Third Edition.] EXTRAORDIXAKY LEGAL REMEDIES. (a) iLiiiduinus. Section 443. Mandamus defined— Its Nature and Object. 444. Mandamus and specific Performance distinguished. 445. Mandamus and Injunction distinguished. 44(j. When issues. 447. Demand. 448. Pleading and Practice. 449. Parties. 450. Service and Return. (b) Quo Warranto. 451. Quo Warranto defined— Its Nature and Object 452. What Courts have Jurisdiction. 453. When issues. 454. Pleading and Practice. 455. Parties. (c) Priihlhition. 456. Prohibition defined— Its Nature and Purpose. 457. What Courts have Jurisdiction. 458. When issues. 459. Pleading and Practice. 460. Parties. t PART I. OF THE ACTION BMSS CODE PL. (])* CH. I.J NATUEE AND FORM OF ACTION. § 1 CHAPTER I. OF THE NATURE AND FORM OF ACTIONS. Section 1. The Terms "Civil Action" and "Cause of Action" defined. 2. Common-law Actions, how instituted and named. 3. Equitable Actions. 4. Name and Foi-m of Action under the Code- 5. Continued. 6. Classification not dispensed with. 7. Continued— Illustrated by Suits in Equity. 8. The Distinction between Covenant Debt and Assumpsit not pre- served. 9. The natural Classification of Actions. 10. We still may speak of legal and equitable Relief. § 1. The Term "Civil Action'" Defined. "An action is the form of a suit given by law for the recovery of that which is one's due." — Jacob. "It is a legal demand of one's right." — Coke. "Actio nihil aliud est quam jus prosequendi in judi- cio quod alicui debetur." — Bracton. These definitions would seem to apply to actions for the recovery of a debt or of specific property, and to leave out of view those numerous cases where one seeks com- pensation for an injury. It is only in a loose sense that unliqui- dated, often conjectural, damages can be said to be a debt or due, although legally they heal the wound. And equitable relief — as, an injunction, or a decree removing a cloud upon title — cannot always be called a recovery of what is due. The New York Code of Procedure thus defined an action; "An action^ is an ordinary proceeding in a court of justice, by which 1 [An action is a formal demand of one's legal or equitable rights in a court of justice, in the manner prescribed by the court or the law. It is the method of applying legal remedies according to definite established rules. People v. County Judge of Rensselaer, 13 How. Pr. 398.] 2 [Special Proceeding Defined. [Following this definition of an action, the New York Code provides that "every other prosecution by a party, for either of the purposes specified in the last section, is a special proceeding." Code Civ. Proc. N. Y. 1890, § 3334. The BLISS CODE PL. (3) I 1 OF THE ACTION. [PAET I. a party prosecutes another party for tlie enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." " So far as this applies to civil actions, it states two objects of an action, one of which includes the other — for how can a right be enforced or protected except by redressing or preventing its infringement, which is a wrong? If I were to venture a definition of a civil action in an adversary proceeding T would drop the words "the enforcement or protection of a right," leaving as its object the "redress or prevention of a wrong." We sue because of the wrong, to protect or redress it. By this means the right is vindicated — both ends are secured, the one by the other. If both are named in the definition they should be connected and not given in the alternative, but it is enough to give the immediate object. term "special proceeding" is purely a code term, and may be defined as an iipplication or proceeding, not resulting in a judgment, to establisli the status or right of a party, or a particular fact. The statute in special proceedings must be sti-ictly complied with, or the proceeding will fail. Porter v. Purdy, 29 N. Y. 106, 110; Chapin v. Thompson, 20 CaJ. G81. The slightest variance ■between notice of a motion and the motion itself is fatal. Webb v. Auspach, 3 Ohio St. 523. Usually, no formal pleadings are required, unless the statute expressly so provide. The remedy is generally granted upon application or motion. The following proceedings may be classed as special: Amercement; arbitration and award; admission to practice law; appraisement and assess- ment to take land under power of eminent domain; attachment for con- tempt; bastardy; certiorari; to contest will; to cure certain defects and omissions; to perpetuate testimony; to change name; habeas corpus; con- fession of judgment; to open streets or highways; proceedings before probate court; contested electioris; against illegal taxes, In re Cooper, 22 N. Y. 67; People v. Shepard, 28 Cal. 115; Page v. Randall, 6 Cal. 32; In re Tyler, 64 Cal. 434, 1 Pac. 884; Estate of Scott, 15 Cal. 220; summary proceeding to obtain possession of land. Freeman v. Ogden, 40 N. Y. 105; mandamus. Peo- ple V. Supervisors of Richmond, 28 N. Y. 112; prohibition, People v. Common Pleas of New York, 43 Barb. 278. See, fm'ther, Ithaca Agr. Works v. Eggles- ton, 107 N. Y. 272, 14 N. E. 312; People v. Flake, 14 How. Pr. 527; In re Ex- tension of Bowery, 12 How. Pr. 97; Dean v. Eldridge, 29 How. Pr. 218; Por- ter V. Pm-dy, 29 N. Y. 106.] 3 This definition has been substantially adopted in the codes of aU of the states. (4) ^-II. I.J NATURE AND FORM OF ACTION. § 'J The Term "Cause of Action" Defined.' As the action is a judicial proceeding for the redress or prevention of a wrong, the cause of action must necessarily be the wrong which is committed or threatened, and the object of a specific action is such redress or prevention by means of the relief which is sought."* § 2. Common-law Actions — How Commenced. Actions in the common-law courts were once commenced by original writ," which was issued out of chancery, in the name of the king, which briefly stated the cause of action, and commanded the sheriff to notify the defendant to appear in the court to which the writ was returnable and answer the plaintiff's complaint. The character of the claim and the ground of action were indicated by the writ, and the narratio, or declaration, subsequently filed was but an amplification of the matter set forth in the writ. The wrongs complained of necessarily varied in character; those of the same general complexion were classed together, and the writ assumed the name which indicated the character of the class and of the grievance. As the action was initiated by the writ, its name was applied to the action itself; '' hence we have the action of debt, * [The "cause of action" should not be mistaken for the "remedy." The "remedy" is the "object of the action," not the cause. To illustrate: A. is deprived of a certain "risht." To secure that right is the "object of his action;" while the deprivation or invasion, or threatened deprivation or in- vasion, of the "right," furnishes his "cause of action." No distinction is made between legal and equitable causes of action.] 5 For fm-ther inquiry as to the meaning of the important phrase "cause of action," as used in the codes of procedure, see post, c. 0, § 113. « [Stoph. PI. (Tj-lers Ed.) p. 40; 1 Spence. JOq. .ixu-. 238.] 1 [The natm-al tendency of lawyers to establish and follow precedents brought about the result that, in the course of time, special forms of "original writ" were established for all the ordinary causes of action, and the "common-law judges" refused to allow these forms to be in any way altered or modified, and finally they refused to sanction any nc\^' forms of writ lor the purpose of assisting ajiy new or novel causes of action, and they refused to entertain any causes of action which were not covered by the known and approved forms of writ. This gave rise to the various names of action. 1 Spence, Eq. Jur. 240. This state of affairs led to legislative interference, and the statute of Westm. (5) § 3 OF THE ACTION. [PART I. the action of trespass, etc., and, under the authority given the chan- cellor to issue other writs to meet causes of action similar to those already provided for, there followed the numerous writs and ac- tions of trespass on the case, which have come to be resorted to in the larger class of grievances.' § 3. Equitable Actions' — How Commenced. But it was still found [even after the statute of Westm. 11. (13 Edw. I. c. 24)] that the subject often suffered a wrong when no rem- edy, or no adequate remedy, could be afforded him under any of the ancient writs, or under those that had been authorized consimili casu. Hence, in such cases, the king, as the fountain of justice, came to be applied to, through his chancellor [and thus grew up the separate chancery jurisdiction],^" for specific relief, and the practice grew up of giving the petitioner the relief adapted to his griev- ance, and without much regard to that which could be obtained in common-law trials, the chancellor sometimes going so far as to en- join the execution of judgments rendered by the king's judges^ The II. (13 Edw. I., c. 24) was passed, by wbich it was enacted that "whensoever from henceforth it shall fortune in chancery that in one case a writ is fotuid and in likp case falling under like law, and requiring like remedy, is found none, the clerks of the chancery shall agree in making the writ, or adjourn the plaintiffs into the next parliament; and let the cases be written in which they cannot agree, and let them refer themselves to the next parliament, by consent of men learned in the law a writ shall be made, lest it might happen after that the coiu-t should long time fail to minister justice unto complain- ants."] 8 It should be unnecessary to inform the intelligent student that in ordinary actions the original writ has long been disused in England, and is hardly known in any of the United States. The first process is a "summons," and in certain cases, and in some states, a "capias ad respondendum." 9 [For a complete history of the growth of the "court of chancery," see "History of the Court of Chancery" by A. H. Marsh. Rex v. Hare, 1 Strange, 150; 1 Spence, Eq. Jur. 3^5-338.] . 10 [Blackstone says that this provision (referring to 13 Edw. 1.), with a little more accuracy in the clerks of chancery, and a little more liberality in the judges, by extending rather than narrowing the remedial effects of the writ, might have effectually answered all the purposes of a "court of equity," ex- cept that of obtaining discovery by the oath of a defendant. 3 Bl. Comm. 51.] (G) CH. I.j NATURE AND FOBM OF ACTION. § 4 student of our jurisprudence has noted the long controversies be- tween the courts of common law and of chancery, and their settle- ment by the weU-defined jurisdiction of each. In the courts of law, as those held by the king's judges are called, although the practice has been often modified to meet the ends of justice^ the names and forms of the personal actions have been preserved; while in chan- cery there never was an original writ — no distinguishing technical names are given to bills of a different nature — but the petition^^ is first presented [as the commencement of the suit in equity], setting out the facts in detail, and asking for a subpoena against the defend- ants and for the relief which is sought. The answer, instead of be- ing a brief formula, like a plea at law tendering issue, is required to be under oath, to be specific, and to make fuU discovery as to every fact alleged in the petition. The common-law and equity proceedings, in some sta,tes, are still substantially preserved.^^ § 4. Name and form of actions under the code. The system of code pleading, so called, though varj'ing some- what in detail in the different states where adopted, is one in its general aims, and the first blow given by it to the common-law and equity systems was to abolish names and forms of actions. The language of the New York Code of Procedure was as follows: ^* "The distinction between actions at law and suits in equity," and 11 [The earliest case that has been cIiscovere) § 8 OF THE ACTION. [PAET I. § 7. Continued — Illustrated by Suits in Chancery. In proceedings in equity the original application is caUed a bUl; there never was an original writ; there is simply a subpoena, which is the same in all ordinary cases — yet the distinction at common law between different classes of actions is not more clear than it is in equity, although in the latter it exists only in fact, and not in name and form. Thus we have bills for injunction, bills of in- terpleader, bills to reform instruments in writing, bills for specific performance, etc. The object of this provision of the code is, not to destroy classification — that could not be done if attempted — but, as in equity practice, to make it natural and scientific, by leaving it to be founded alone upon the character and object of the proceeding. Thus, with great propriety, we still use many of the common-law terms — no longer as essential names of specific forma of action, but rather as instruments of a rational classification — as convenient technics that indicate the character of the wrong and object of the proceeding, and save the necessity of long descriptive phrases. § 8. The Distinction bet\7een Assumpsit, Debt, and Cov- enant not Preserved. There is no reason why we should still speak of, and distinguish between, the actions of debt, of covenant, and of assumpsit. These distinctions were artificial; each action was based upon contract,, and they should be classed under one head; for it does not mat- ter, as regards the character of the action and nature of the remedy, whether the agreement be verbal or in writing, and if the latter, whether it be sealed or without a seal. The law may impose great- er obligations upon persons whose agreements are under seal, or may give their contracts greater operative force, than if made by parol; and there is also a distinction, as regards their validity, between a class of contracts which are written and those which are verbal ; but so far as actions are concerned, those which are based upon contract are substantially of the same character and should be classed together. The right is created by consent, by an obli- gation voluntarily assumed, and the wrong is in its breach. (10) cn. I.] NATURE AND FORM OF ACTION § 9 Besides, these names, as to matters of substance, have not the cer- tainty which should belong to all technics. At common law the action of "assumpsit" lies when the party seeks to enforce an un- sealed agreement, whether in writing or verbal, express or implied, and sometimes when there could have been no contract in fact. "Debt" covers the whole ground, if the amount due or the damages claimed are of such a nature as to be called a debt, that is if they are liquidated — although if the contract be in the form of a penal bond with conditions, it is sufficient for the penalty to be certain, the actual liability being often very uncertain — while "covenant" can be brought only upon sealed instruments.^' § 9. The natural Classification of Actions. The following is a natural classification of actions in which the issues of fact are triable by jury, and it is one partially recognized by the statute, as will be seen in considering the joinder of causes of action.^' We include I. All actions brought for the recovery of money, where the wrong or cause of action is a breach of contract, whether express or im- plied, and which, at common law, are called either covenant, debt, or assumpsit. Implied agreements are often spoken of as obli- gations created by law rather than by contract; and if there is no understanding it is unreasonable to still class them with agreements which imply assent. If they are merely legal obligations, like those created by a trespass, or by a relation which imposes duties, the classification is artificial; and the continued recognition of that class of promises said to spring from an injury, or from duty merely, where the circumstances negative the possibility of an understand- ing — as, where one waives the tort and sues as upon contract, or 18 The distinction between sealed and unsealed written agreements is at common law more radical than between those which ai-e verbal and those in writing, but it is not founded in reason and is slowly passing away. It has been abolished by statute in the states of Kentucky, of Indiana, of Iowa, of California, of Kansas, of Nebraska; and in some other states almost anything is recognized as a seal. Its general retention forcibly illustrates the con- servatism of the legal mind, which makes it so difficult to get rid of rules and distinctions when their original reasons no longer exist 19 Post, c. 9. (11) § 9 OF THE ACTION. [PAET I. wkere one refuses to provide for his family, forbids others to do so, and is charged for their supplies as upon an implied promise — ^is but evidence of vitality of some of the old fictions.^" But implied agreements are usually more than these; there is a supposed undertaking, an agreement, though not expressed in words. The person in whose favor the implied promise is supposed to be made acts upon it, and is known by the promisor to act upon it, as though it were actual — as, where one labors for another at his request, unless his services are donated he expects to receive pay- ment for his work, and has a right to presume that the other party understands that he is to pay him: the fact of the request implies the understanding by both parties. n. We also naturally class together actions to recover damages which result from wrongful acts of the defendant, commonly called torts. The common-law actions which are brought to redress this class of injuries are "trespass" and "trespass on the case." "Tres- pass" lies for a wrongful act committed with force and where the injury is direct, and the action is either for trespass to the person by assault and batteiy, or false imprisonment; trespass to personal property, called "trespass de bonis asportatis," or simply trespass; or for trespass to land called "trespass quare clausum fregit." When the injury is not the direct result of force, but grows out of the wrongful act of defendant the action is "trespass on the case," often called "case." "^ 20 The subject of implied promises assumed under circumstances where they could not have been made is hereafter considered. 21 It is not always easy for the common-law pleader to decide whether to bring trespass or case. In Waterman v. Hall, 17 Vt. 128, the evidence showed that the defendants had frightene(i the plaintiff's mare so that she attempted to leap a fence and was killed. The action was case, and the court held that either case or trespass would lie, and also expressed the opinion that in the famous Squib Case, where the act of defendant was held to be a trespass, the action of trespass on the case would also lie. Case is the remedy for waste, as the wrongdoer is in lawful possession; but if the tenant holds over and afterwards commit waste, either case or trespass will lie. Co. Litt. 57a, note 380. Assumpsit was never treated as an action of tort. It is in form trespass on the case, yet, in fact, it is an action upon contract. The technical or descriptive names which have so long been used in regard to these actions are still too convenient to be dispensed with. Thus, in code practice the word trespass is still used to designate the old class of injuries, and we may, (12) <-n. I.J NATURE AND FOEM OF ACTION. § 9 m. The action for the specific recovery of personal property or instruments in writing cannot be well associated with any other class. The injury complained of is a tort, but the relief distin- guishes the modern replevin from all other actions. And so with— IV. Actions for the recovery of real property, whose object is the same as that of the action of ejectment, though difleriug greatly in form. In comparing the code action with the action of ejectment, a dis- tinction should be noted other than one of form. Ejectment is a common-law action brought in the common-law courts which can- not recognize equitable titles ; hence the legal title prevails, lint the code action is brought in courts bound more by equitable than legal doctrines and the inquiry is, not who has the legal title, but who has such a title, whether legal or equitable, as gives him a right to pos- session.^^ This classification of actions, except in regard to those founded upon contract, is substantially the same as in the comiuon law practice since certain ancient writs as formedon, writ of right, dower, etc., went out of use. I have not attempted to classify those actions where the issues are submitted to the court, and which ara commonly called equitable. The formal bill in chancery is not used, but the action is substantially the same, and suitors are en- titled to the same relief as in equity. The terms covering the ob- ject of the proceeding, and which determine its character — as, fore- closure, specific performance, etc., — apply to actions for the same with propriety, call an action one of trespass, although not so designated on paper. Trover is also a term still in common use, hut to distinguish it from trespass to personal property it should, under the code, be applied only to actions to recover damages for the conversion of personal property when the original possession was riglitful; although, at common law, trover, as a form of action, lies where the taking was tortious. 1 Chit. PI. 151, 171. We also necessarily speak of actions for libel, slander, negligence, etc. 22 [Murray v. Walker, 31 N. Y. 399; SafCord v. Hynds, 39 Barb. 625. An equitable defense is fully available under the code in an action of ejectment. The equitable defense is lirst to be passed upon by the court; and, until it is disposed of, the assertion of the legal remedy is in effect stayed. The neces- sity of proceeding with the action at law will depend upon the determination of fhe court upon the relief prayed by the answer setting up the equitable de- fense. Martin v. Zellerbach, 38 Cal. 300.] (13) § 10 OF THE ACTION. [PART I. object, and the classification, so far as any can be made, is the same as in equity. § 10. We still may speak of legal and equitable Belief. We have seen that in the States adopting the New York system, except Kentucky, Arkansas, Iowa, and Oregon, the distinctions be- tween actions at law and suits in equity are abolished, either directly or by providing that there shall be but one form of action. Is the distinction, in fact, abolished, and was it necessary to expressly retain equity jurisdiction in the States named? ^^ The expression is not a happy one, for it is not easy to see how it is possible to abolish the distinction between these two classes of actions. One or the other may be abolished. The law-making power may say that suitors shall no longer be entitled to equitable relief — that is, that hereafter they shall be allowed to sue only for money or for specific property; or, on the other hand, that they shall be entitled to equitable relief only — that is, that they may sue for the specific performance of a contract, but not to recover damages for its breach. But it cannot abolish the distinction between the two actions; ^* and if both these remedies continue to be allowed, 23 [This question is very thoroughly and completely answered by Mr. .Justice Selden in Reubens v. Joel, 13 N. Y. 488. See, also, Voorhis v. Childs, 17 N. Y. 354.] 24 REUBENS V. JOEL, 13 N. Y. 488. [This case contains the clearest state- ment of what the codes have done in abolishing the distinctions between law and equity, of any which are found in the books. Selden, J., says: "What are the distinctions between actions at law and suits in equity? The most marked distinction obviously consists in their different modes of relief. In the one, with few isolated exceptions, relief is invariably administered, and can only be administered, in the form of a pecuniary compensation In dam- ages for the injm-y received. In the other, the cova-t has a discretionary power to adapt the relief to the circumstances of the case. By what process can these two modes of relief be made identical? It is possible to abolish one or the other, or both, but it certainly is not possible to abolish the distinction between them. The legislature may, \mless prohibited by the constitution, enact that no court shall hereafter have power to grant any relief, except in the form of damages, and thereby abolish all suits in equity; or that all com-ts shall have power to mold the relief to suit the particular case, and thereby virtually abolish actions at law as a distinct class. To illustrate by a single case: They may provide that where a vendor of land, who has con- (14) CH- I-J NATURE AND FORM OF ACTION'. § 10 the distinction remains. That it does remain is clear. The codes provide for trial by jury of substantially the same issues as were so triable before their adoption — that is, issues of fact in actions for the recovery of money or of specific real or personal property. This provision covers all the issues of fact in common-law actions,^^ and probably a few others : as, where it formerly became necessary to resort to equity to recover a money debt. They also provide that every other issue — that is, in addition to issues at law, those which formerly were tried by the chancellor — shall be tried by the court. Thus the chief distinction bet^veen actions at law and suits in equity is preserved. The distinctions abolished are simply those which formerly existed between the two classes of actions in the manner of stating the facts, in the style of the writ, and the mode of submitting evidence; those which arise from the mode of trial and from the nature of the relief are as marked as before.-" While, in deference to the statute,^' it may not be proper to designate ac- tions belonging to one class as legal actions and to call the other equitable actions, yet we are not forbidden to speak of the one as actions for legal relief and of the other as actions for equitable re- lief. We should not be driven to unnecessary descriptive phrases — be compelled to abandon a familiar and appropriate word. Legisla- tion may affect modes of procedure; it will be found more difficult to reform a language. tracted to sell and receive the purchase money, refuses to convey, the vendee shall have no remedy but an action for damages, or, on the other hand, that lie shall be confined to a suit for specific performance; but it is clearly beyond the reach of their powers to miike tliese two remedies the same. Another leading distinction between common-law actions and suits in equity consists in their different modes of ti-ial. The former are to be ti'ied by a jm-y; the latter by the court. Can the legislature abolish this distinction? They might, but for the restraints of the constitution, abolish either kind of trial, or reclassify the classes to which they apply; but they cannot make trial by jury and trial by the coiu-t the same thing." See, also, Voorhis v. Childs, 17 N. X. 354, 302.] 25 Except the one made by "niU tiel record." 28 [Causes of action, legal and equitable, have not been consolidated; and, though there is no difference between the form of a bill in chancery and a common-law declaration under the code system, where all relief is sought in the same way from the same tribunal, the distinction between law and equity is as broad as ever. Bonesteel v. Bonesteel, 28 Wis. 245.] 27 Ante, §§ 4, 5. (15) § 11 OF THE ACTION. [PABT I. CHAPTER II. OF ELECTION BETWEEN ACTIONS. Section 11. The Right of Election distinguished. 12. The Right not essentially ch.inged. 13. The Right to waive the Tort in Conversion of personal Property. 14. Where there is both a Conti-act and a legal Duty. 15. Election in fraudulent Sales, and for Money obtained by Fraud. 16. Where the Wrong-doer has repudiated the Contract. 17. Instances of Election between Actions upon the same Contract 18. Other instances of Election. 19. Considerations that should control the Election. § 11. The Eight distinguished. In speaking of election in this connection, reference is had to cases where the party has but one cause of action — that is, there is but one wrong, but one right infringed, and he can bring but one action. He may not be confined to one class of actions, it may be for his interest to seek relief of an equitable nature, or only a money judgment. If the latter, in cases, to be hereafter noted, he may proceed for a tort, or only for the violation of an agreement.^ In these and in some other cases of double relief the two remedies cannot be pursued together; they are ordinarily inconsistent — Whence the plaintiff must make an election.^ 1 [The distinction between an action ex contractu and ex delicto is: The former arises out of a wrong with an agreement, either express or Implied; the latter out of a wrong without an agreement] 2 [The character of the action must be determined by the complaint or peti- tion. After the plaintiff has made allegations stating a cause of action ex delicto, it is not competent for him at the trial to convert it into one ex con- tractu, without amending his pleading. Neudeclica- v. ICohlberg, 81 N. Y. 297; Terry v. Hunger, 121 N. Y. 101, 24 N. E. 272. The distinction of actions in tort and on contract is as essential under the code as imder the common-law prac- tice. In the one execution may go against tlie body, in the other against the property, only, of the defendant. It is therefore seen that the distinction is not merely technical or formal, but is a substantial one. Anderson v. Case, 28 Wis. 505; Pierce v. Cary, 37 Wis. 232; Sawyer v. Nelson, 44 111. App. 184; Hood V. Sudderth, 111 N. C. 215, 10 S. E. 397; Johnson v. Morton, 94 Mich. 1, 53 N. W. 810.] CH. II.] EI^CTION BETWEEN ACTIO^S. § 12 § 12. The Bight not essentially changed. Upon principle, it would seem that, in one particular, the right of election has been modified by the Code. In some causes of action arising from torts, the injured party is authorized at com- mon law to declare in assumpsit; to do so it is necessary to show a fictitious undertaking or promise, and hence the rule, as ap- plied to these causes, that one may waive the tort and sue as upon contract If, for example, a defendant has wrongfully taken per- sonal property belonging to the plaintiff, or has wrongfully refused to return that which has been loaned him, the wrong in either case is a tort, and, at common law, the proper action in one case is trespass and in the other trover, though trover will also lie, as win the modernized action of replevin. But the plaintiif may also sue in assumpsit and charge a sale, a promise and its breach, although there has been no sale in fact, and no promise either express or, as a fact, implied. There may be — there is, under some circumstances — an implied contract; the phrase does not neces- sarily state a fiction, for an agreement may be logically inferred from the conduct of the parties — an undertaking which is under- stood by them, though not expressed in words.' It is consistent with the spirit of the new system to treat legal obligations aris- ing from such an undertaking as contracts, for they are so in fact. In the case supposed, however, the implied promise is a fiction, and yet to allow it is well enough in a system abounding in Ac- tions. It is not, however, in harmony with one from which fictitious averments are supposed to be excluded. Yet I do not find that the attention of the court, in the states that have adopted the new system, has been called to the seeming inconsistency. The common-law doctrine is stiU recognized; the old phraseology, in the old sense, is still used by the courts; and I shall be compelled to treat the subject, in this regard, according to the view taken under the common law procedure.* •Ante, § 9; post, § 128. * Judge Swan, of Ohio, in his treatise upon Pleadings under the Ohio Code, discards the fiction of a promise in cases lilte the one supposed in ihe text, a^id says: "These artificial inferences of the law, which are not implied or BLISS CODE PL. 2 (U") § 13 OF THE ACTIOJV. [jPART I. § 13. The Right to waive the Tort in Conversion of per- sonal Property. Suitors frequently avail themselves of the right of election in cases where personal property has been unlawfully seized or con- verted." It is not disputed that when property has been wrong- fully appropriated, and has been sold and converted into money, the owner may ratify the sale by suing the wrong-doer for money had and received for his use.' This right may not be inconsist- ent with the theory of truthfulness in pleading,; for, if the plain- tiff charges that the defendant, being in possession of his property, sold it for a certain sum, which he refuses to pay over, he makes deduced as a truth from the facts, cannot, in code pleading, be substituted for the facts, they being, in respect of pleadings, legal fictions adopted to sus- tain the different forms of action at common law, and must, with the abroga- tion of those forms, be discarded from pleadings under the Code." Pages 48, 49. It is to be regretted that so rational a suggestion has not been followed by the courts. 6 [It is well settled in Michigan that a tenant in common may maintain as- sumpsit against his cotenant for his share of the crops. Such crops are divisible, and the share of each easily ascertained; and the refusal to recog- nize the right of the cotenant amounts to a conversion. The tort may bi> waived, and assumpsit brought. Lioomis v. O'Neal, 73 Mich. 582, 41 N. W. 701. This is not the rule in case of tenants in common of a chattel, where one has as good a riglit to possession as the other.] e JONES V. HOAR, 5 Pick. 285, and note; GORDON v. BRUNER, 49 Mo. 570; [Terry v. Munger, 121 N. Y. 101, 24 N. E. 272; Lehmann v. Schmidt, S7 Gal. 15, 25 Pac. 161. It is not disputed that when there is a conversion of personal property, and that property has been sold and converted into money, the ovmer may ratify the sale by suing the wrongdoer as for money h.ad and received to his use. But when the property has not been sold, but still remains in the hands of the wrongdoer, there is a difference of opinion; and there have been conflicting decisions whether the owner may waive the tort, and sue for goods sold and delivered. Jones v. Hoar, 5 Pick. 285; Willet V. Willet, 3 "Watts, 277; Morrison v. Rogers, 2 Scam. 317. See Tiull V. Granger, 8 N. Y. 115; Carpenter v. Stilwell, 3 Abb. Pr. 459. The general rule is that one who has converted to his own use the personal property of another, when sued for the value of that property as sold to him, vyill not be permitted to say in defense that he obtained it wrongfully. Putnam v. Wise, 1 HiU, 240; Freer v. Denton, 61 N. Y. 492; Floyd v. Wiley, 1 Mo. 430, 643.] (18) CH. II. J ELKCTION BETWKEN ACTIONS. § 14 a case of liability as upon contract, and states nothing that is untrue. If he sue for the wrongful taking, charging the conversion, he will recover the value of the property, without regard to the amount for which it was sold; while, if he affirms the sale, he wiQ be entitled to the money received for the property, without regard to its value. But if the property has not been sold, but still remains in the hands of the wrong-doer, can the owner, under such circumstances, bring an action as upon contract? The right to do so is denied in Massachusetts, Vermont and Penn- sylvania, and ijnder common-law pleading,'' but was affirmed in New York before the adoption of the Code.' In courts working under the new system, where there has been a conversion merely, and no sale, the right to sue as upon contract has been generally asserted." So where money has been stolen or embezzled the wrong-doer may be sued for money had and received.^" § 14. Where there is both a Contract and a legal Duty. In certain relations which are usually entered into by contract, the law imposes a duty that arises from the relation rather than the contract, and if the duty be disregarded, the one who suffers may sue upon the agreement, or may treat the wrong as a tort, and bring an action analogous to that of trespass on the case.^^ ' Jones V. Hoar, supra; Stearns v. Dillingham, 22 Vt. 624; Willet v. Willet, ;5 Watts, 277. See, also, Morrison v. Rogers, 2 Scam. 318. s Putnam v. Wise, 1 Hill, 234, and note; Berly v. Taylor, 5 Hill, 577, and note; and other cases cited, in note 1, § 154. See, also, Floyd v. Wiley, 1 Mo. 430; Johnson v. Strader, 3 Mo. 359; Russell v. Bell, 10 Mees. & W. 351, 352; [Huston V. Plato, 3 Colo. 402; Logan v. Wallis, 76 N. C. 416.] » Smith V. Schulenberg, 34 Wis. 51; Roth v. Palmer, 27 Barb. 652; Hawk V. Thorn, 54 Barb. 164; Roberts v. Evans, 43 Cal. 380; McGoldrick v. Wil- lits, 52 N. X. 612; Gordon v. Bruner, 49 Mo. 570. And see Nordon v. Jones, 33 Wis. 600, as applied to trespass upon land, where the general question is discussed, and Steams v. Dillingham, supra. The contrary view is taken in Iowa, and the right to sue as upon contract is coniined to cases where the property tortiously converted has been sold. Moses v. Arnold, 43 Iowa, 187. 10 [Richardson v. Kelly, 85 111. 401.J " 2 Add. Torts, c. 22, § 1. . < , (19) § 14 OF THE ACTION. [PART I. This duty arises on the part of carriers, innkeepers, attorneya, physicians, farriers, and other skilled mechanics, etc. Thus, if a railroad conductor wrongfully ejects a passenger, an action for the tort will lie, although the person ejected is riding by virtue of a contract.^^ Assumpsit, or case wiU lie against an attorney for a breach of his duty.^' The owners of a ship are responsible to the owners of goods shipped on board their vessel for negligence by themselves or their servants, notwithstanding a charter-party. The fact of contract does not relieve them from liability incurred for the nonperformance of duty in the course of the ship's employ- ment.^* But the election to sue a carrier for negligence does not prevent him from setting up a special contract as a defense, if by its terms it will extricate him.^^ If there be no legal duty except as arising from the contract, there can be no election — the party must rely upon the agreement. Thus, if one agree to take the charge and superintendence of a farm for a year, and to take charge and care of the stock, etc., there is no legal duty outside the contract; and an action, as on the case for tort, will not lie for his negligence.^' If one agrees to board a horse for another and keep him. in a separate stall, and negligently put him in a stall with other horses, and he is kicked and injured in consequence, the negligence cannot be charged as a tort, for there is no duty outside the contract.^' 12 Bmigh v. Pittsburg, Ft. W. & 0. R. Co., 4 Biss. 114 [Fed. Gas. No. 4,449]. In this case the court holds the doctrine to be that, where there is a contract from which a common-law duty arises — as, in the services of a lawyer, phy- sician, or in case of a common carrier, agent, or wharfinger— the contract may be laid as matter of inducement, and the pleader may rely upon tort for breach of duty. 13 Church V. Mumford, 11 Johns. 479. 14 Leslie v. Wilson, 3 Brod. & B. 171. 15 Clark V. St. Louis, etc., Ry. Co., 64 Mo. 440; Oxley v. Same, C5 Mo. C29. 18 Masters v. Stratton, 7 Hill, 101. 17 Legge V. Tucker, 1 Hm-1. & N. 500. The opinion says, while holding that the action could only be upon contract: "But, in case of carriers, the custom of the realm imposes on them a duty to carry safely, and a breach of that duty is a breach of the law, for which an action lies, founded on the com- mon law, and which does not require a contract to support it. So in case of a farrier who shod a horse negligently; he might be sued in tort." And another judge says: "When the foundation of the action is a contract, in what> (2W til. n.] ELECTION BETWEEN ACTIONS. § 15 The general doctrine is tlius stated in substance, in Saunders:^' "When the action is maintainable for the tort simply, without reference to any contract made between the parties, no objection can be raised on the ground that the plaintiff should have declared upon the contract; as for instance, in actions against common carriers, founded on the custom of the realm, and the like. But where the action is not maintainable without referring to a con- tract between the parties, and laying a previous ground for it by showing such contract, then the plaintiff must proceed upon the contract, and a special action upon the case will not lie." ^' § 15. Election in fraudulent Sales, and. for Money ob- tained by Fraud. ^ "Where property is sold and no credit has been stipulated, none is to be presumed; unless payment is made on demand the title to the property remains in the vendor; if the property has been delivered, he may recover possession, for the sale was incomplete without payment.*^ So if credit was to be given upon approved security and the security is not furnished ;^^ or, if one sells goods for the purchaser's note, or for the note of a third person, which he is fraudulently induced to take, the property is still in the vendor. In these cases the vendor may, at his election, treat the transaction as a sale, and, instead of seeking to recover the goods, may sue for the consideration; but he cannot do both, for ever way the declaration is framed, it is an action of assumpsit; but when there is a duty ultra the contract, the plaintiff may declare in case." 18 Cabell V. Vaughn, 1 Saund. (5th Ed.) 291, note, as given in Masters v. Stratton, supra. 18 In Kentucky this right of election is recognized under the Code, and, as indicating such election, Crenshaw, J., in Konantz v. Brown, 16 B. Mon. 577, says: "In a petition which goes for a forcible injury, it should state such facts as would be equivalent to an action of trespass at common law. If the trespass be waived, and the petition go for negligence or want of skill, it should state facts which are equivalent to an action in case according to common-law principles." 20 [Richardson v. Kelly, 85 111. 491.] 21 Palmer v. Hand, 13 Johns. 434; Morris v. Rexford, 18 N. Y. .552. 22 Haggerty v. Palmer, 6 Johns. Ch. 437. (21) § 16 OF THE ACTION. [PART I. the claims are inconsistent, if he brings an action for the price, he affirms the sale, and vice versa.^* So where one has obtained money by deceit or fraudulent prac- tices, the loser may bring his action for the tort, analogous to the action on the case, or may sue upon an implied contract for money had and received;^* or where, upon a false representation as to the purchaser's solvency, a vendor has been fraudulently induced to give him a credit, the latter, on discovery of the fraud, 23 Morris v. Rexford, supra; Benedict v. Bank of the Oommonwealth, 4 Daly, 171; Bo wen v. Mandeville, 95 N. Y. 237. If he compromises the fraud, or seeks to enforce the contract, though unsuccessfully, he has waived the tort. Adams V. Sage, 28 N. Y. 103; Wllmot v. Richardson, *41 N. Y. 519; Powers V. Benedict, 88 N. Y. 605. He must act, however, with reasonable prompt- ness and do nothing to affirm the sale. Joslin v. Co wee, 52 N. Y. 90; Bulk- ley V. Morgan, 46 Conn. 393; Dibblee v. Sheldon, 10 Blatchf. 178 [Fed. Cas. No. 3,889.] 24 BYXBIB V. WOOD, 24 N Y. 607. [This was an action to recover cer- tain sums of money which it was claimed had been obtained from the plain- tiff's assignor by means of various false statements and representations. "This state of facts," says Gould, J., "does not necessarily require an action to be brought for the tort, even if it allows one to be so brought. Such facts always raised in law the implied promise which was the contract cause of action in indebitatus assumpsit for money had and received. Having money that rightfully belongs to another creates a debt; and, wherever a debt ex- ists without an express promise to pay, the law implies a promise and the action always sounds In contract." Hart v. Barnes, 24 Neb. 782, 40 N. W. 322; Farmers' Nat. Bank v. Fonda, 65 Mich. 533, 32 N. W. 065.] See, also, UNION BANK v. MOTT, 27 N. Y. 633; BYARD v. HOLMES, 33 N. J. Law, 119. [Form of Petition or Oomplaint for Money Had and Beceived, [Title of Case. See post, § 144. [The plaintiff complains of the defendant, and alleges: [1st. That the defendant, on the day of , was indebted to the plaintiff in the sum of dollars for so much money had and received by the defendant for the use of the plaintiff, which sum the defendant agreed to pay to plaintiff. [2d. The said defendant, though requested, has not paid the same, nor any part thereof, and there is now due from the defendant to the plaintiff thereon the sum of dollars, with interest from the day of . [3d. Wherefore the plaintiff prays judgment against the defendant for the sum of dollars, with interest from the day of . [A. B., Attorney for Plaintiff. [Note: Add verification wlien necessary. See sections 172, 173, and notes.] (22) CH. II.] ELECTION BETWEEN ACTIONS. § 1& may repudiate the agreement as to the credit, and at once sue for the value of the goods as upon contract, or may sue in tort for the fraud." J 16. Where the Wrong-doer has repudiated the Contract. It sometimes happens that one who has rightfully obta:ined pos- session of the property by contract so conducts himself with re- gard to it that he can be held, at the option of the owner, to have repudiated the contract, and can be treated as a trespasser from the beginning. Thus where there has been an intentional de- struction of or injury to, a horse by the hirer, the owner is at lib- erty to treat him as a trespasser;^" in such case an infant may be made to respond to the injury.''' So if a horse be driven to a place different from the one to which the hirer had agreed to drive him, it is a conversion; and even if the hirer cannot be compelled to respond to the contract, if made on Sunday where such transac- tions are forbidden by law, he may be held for the conversion^' [and recover in an action for goods and chattels sold and deliv- ered].^' 28 Wigand v. Sichel, 33 How. Pr. 174; Katli v. Palmer, 27 Barb. 652, the court, per Hogeboom, J., citing upon the general right of election between contract and tort, Putnam v. Wise, 1 Hill, 234, and note; Cummings v. Vorce, 3 Hill, 283, and note; Berly v. Taylor, 5 Hill, 577; Brownell v. Flagler, Id. 282; Baker v. Bobbins, 2 Denlo, 136; Osborn v. Bell, 5 Denio, 370; Camp V. Pulver, 5 Barb. 91; Hinds v. Tweddle, 7 How. Pr. 278; Butts v. Collins, 13 Wend. 154. Also, Lightly v. Clouston, 1 Taunt 113; Hill v. Perrott, 3 Taunt 274; Toung v. Marshall, 8 Bing. 43. 26 Campbell v. Stakes, 2 Wend. 137; Co. Litt 57a; [Crocker v. GuUiver, 44 Me. 491; Gilman v. Hill, 3G N. H. 311.] 27 Campbell v. Stakes, supra; Homer v. Thwing, 3 Pick. 492; otherwise if the wrong consist only in immoderately driving the animal. Jennings v. Rundall, 8 Term R. 335; [Challiss v. Wylie, 35 Kan. 506, 11 Pac. 438; Cooley, Torts, 112. Infancy is no defense to an action ex delicto. BuUock v. Bab- cock," 3 Wend. 391. They are liable in the same manner as adults for torts. Chapman v. Hughes, 61 Miss. 339.] 28 Hall V. Corcoran, 107 Mass. 251; Frost v. Plumb, 40 Conn. 111. 29 iForm of Petition for Goods Sold and Delivered. [Title of Case. [The plain tifiC complains of the defendant and alleges: [1st That the defendant, on the day of , was indebted to the plaintiff in the sum of dollars for goods, wares, and merchandise (or (23) § 17 OF THE ACTION. 1|PAKT I. § 17. Instances of Election between Actions upon tlie same Contract. The suitor may have more than one remedy when the wrong is simply a breach of contract. Thus, if a servant be wrongfully dis- charged before the expiration of his term of service, he may at once sue for a breach of the agreement, or may wait until the term has expired and sue for his wages at the stipulated rate.'" But he cannot do both; if he sue for damages, it is a bar to a subse- quent action for wages.^^ If a contractor be prevented from completing his job by the unwarranted acts of the other party, he may elect to sue for damages for a breach of the contract,'^ or he may sue for the value of the work already done.'^ At common goods, chattels, etc., with more specific words If desired) sold and delivered by the plaintiff to the defendant at his request, which sum the defendant then and there agreed to pay when requested. [2d. The defendant, though requested, has paid no part thereof, and there is now due from the defendant to the plaintifC the sum of dollars. [3d. Add prayer.] 30 2 Pars. Cent. 34; Rogers v. Parham, 8 Ga. 190; Booge v. Pacific E. Co., 33 Mo. 212. In a suit for wages under such circumstances, the defendant may reduce the amount to be recovered by showing that the person discharged had, dm-ing the period covered by the contract, been engaged in other luci-ative business. Costigan v. Mohawk & H. U. Co., 2 Denio, 609; Hendrlckson v. Anderson, 5 Jones (N. C.) 246; Pars. Cent. 34, note d; [Howard v. Daly, 61 N. Y. 362, at page 371; Mechem, Ag. § 622, at page 451; ALLEN v. WHITLARK (Mich.) 58 N. W. 470; Hlnchcliffe v. Koontz, 121 Ind. 422, 23 N. E. 271; Brown V. Board of Ed., 29 111. App., at page 572. Also, City of Jacksonville v. Allen, 25 m. App., at page 54; School Dist. No. 4 v. StUley, 36 111. App. 133; EMERY V. STECKEL, 126 Pa. St. 175, 17 Atl. 601.] 31 Booge V. Pacific R. Co., supra. 32 [See, as to the form of this action, James v. Allen Co., 44 Ohio St. 226. See, as to the rule in this class of cases, Howard v. Daly, 61 N. Y. 362; Allen V. Whitlark (Mich.) 58 N. W. 470; Emery v. Steckel, 126 Pa. St. 171, 17 Atl. 601; Cox V. Bearden, 84 Ga. 304, 10 S. E. 627; Hinchcliffe v. Koontz, 121 Ind. 422, 23 N. E. 271; Brown v. Board of Ed., 29 111. App. 572; Bennett v. Morton, (Minn.) 48 N. W. 678. Contra, School Dist. of Chadron v. Foster (Neb.) 48 N. W. 267.} 33 McGullough V. Baker, 47 Mo. 401; Fitzgerald v. Hayward, 50 Mo. 516; Merrill v. Ithaca & O. R. O., 16 Wend. 580; Clark v. Mayor of New York, 4 N. Y. 338; Chamberlin v. Scott, 33 Vt. 80. (24) <^H. II.] ELECTION BETWEEN ACTIONS. § 18 law, where lands had been demised by covenant and the lessee had actually occupied the premises under the lease, the lessor was not compelled to base his action upon the covenants in the instrument, but might sue in debt for the sum due, and offer the deed in evidence to show the relation of landlord and tenant, and fix the amount of the rent.^* Afterwards the action of assumpsit for use and occupation was allowed by statute'" when the agree- ment was not made by deed, which statute was incorporated in the New York Revised Statutes, and, by amendment to con- form to the new system, now reads as follows: "A landlord may recover a reasonable satisfaction for use and occupation, by any person, under any agreement not made by deed; or, if an agree- ment not by deed, by which a certain rent is reserved, appears in evidence, plaintiff may use it as evidence of the amount of dam- ages." ^* This is adopted substantially in Missouri." Actual occu- pation during the term is not necessary if the tenant took pos- session and occupied for a part of the term, and might have done so for the whole.'* § 18. Other Instances of Election. One who suffers a wrong arising from breach of contract may have a choice between remedies of a legal and of an equitable na- ture. Thus, if he would afBrm the agreement, he may, in a proper case, have an action for damages for its breach, or to recover a specific sum due upon it, or he may sue for its specific perform- ance.'' Under peculiar circumstances, only one of these actions 3i 2 Chit. PI. 430, note u. 35 11 Geo. n. c. 19; Tayl. Landl. & Ten. § G35, etc.; Garvey v. Dobyns, 8 Mo. 213. 36 1 Eev. St. 748, § 26. 87 Key. St 1879, §§ 3081, 3082. 38 Hall V. "Western Transp. Co., 34 N. T. 284. 3' [ When will the Courts Grant Specific Performance of a Contract? [The courts will grant specific performance of a contract only when an ac- tion for damages would prove inadequate, and then only when the court can supervise its execution. But it has been held on contracts for the sale of land that specific performance may be obtained although there is an ade- (25) § 19 OF THK ACTION. [PAKT I. will lie, but ordinarily either may be prosecuted. So, if he would rescind the obligation, he may recover back moneys that have been paid upon it, or may have an action of an equitable nature for its rescission. When personal property has been wrongfully converted and the true owner does not choose to waive the tort,' if it is within reach, he may seize the property by an action of replevin, or may sue for damages only. § 19. Considerations that should control the Election. Ohitty, in treating of the election of actions, gives nine con- siderations which should control the judgment of the plaintiff in the choice of remedies.*" Most of them pertain to the form of actions merely, and are without force under our system; but there are reasons, some of which he suggests, that are important to be considered: 1. If the defendant was an infant when the cause of action arose, it may be unsafe to waive a tort and sue iis upon contract, lest he defend upon the ground of infancy; and so, if an infant should so use or misuse property he may have hired, or of which he may otherwise have become a bailee, as to authorize the owner to treat his conduct as a repudiation of the contract, and enable him to hold the infant bailee as a trespasser, or as guilty of conversion of the property, he might recover, notwithstanding the infancy.*^ 2. The statute of limitations may quate remedy in damages. Schroeppel v. Hopper, 40 Barb. 425; Crary v. Smith, 2 N. Y. 60; Fry, Spec. Perf. 11. Specific performance will not be granted on a contract for the sale of goods, wares, and merchandise, nor on a gratuitous contract, though made under seal, nor on a contract in favor of an infant See, also, Modissett v. Johnson, 2 Blackf. 431; Ashe v. Daggy, 6 Tnd. 259; Allen v. Davison, 16 Ind. 416. [ General Vorm of Petition for Specific Performance. [Title of Case. List. Allege the making of the contract and set out or file copy. [2d. Allege that plaintiff has performed or offers to perform all conditions of said contract on his part. L3d. Allege the failure to perform the conditions by the defendant specifically. [4th. Add appropriate prayer.] 10 Chit. PI. 207. *i It is held by some coiu'ts that the election to waive the tort and treat the (26) OH II.] ELECTION BETWEEN ACTIONS. § 19 have run against the remedy for the wrong, if treated as tort, where a contract may still be enforced. 3. One may desire to unite the claim in one complaint or petition with another cause of action, and, if capable of being presented in the two aspects, he may, in order to effect the union, make it sound in contract or in tort according to the character of the other cause. 4. A defend- ant who is sued upon contract may have suffered a tortious in- jury at the plaintiff's hands. If he is allowed to waive the tort and hold the plaintiff as upon contract, he may present his demand by way of counter-claim.*^ 5. If the defendant has wrongfully sold transaction as a contract does not exonerate an infant tort feasor from liabil- ity. See Elwell v. Martin, 32 Vt. 217, cited with the opinion in Cooley, Torts, 112; [Shaw v. Coflan, 58 Me. 254; Munger v. Hess, 28 Barb. 75; 2 Greenl. Ev. § 368. Neitlier is intoxication a defense to an action for a tort. Reed v. Harper, 25 Iowa, 87; McKee v. Ingalls, 5 111. 30.] 42 NORDEN V. JONES, 33 Wis. 600. [This action was brought by the plain- tiff against the defendant to recover on a book account alleged to be due from the defendant Defendant set up a counterclaim of six dollars for pasturing plaintiff's cattle, and testified that plaintiff laid down his fence, and let the cattle into the pasture. Plaintiff objected to this item, as not being a subject of account, but a trespass on the part of the plaintiff, which could not be proved in this form of action. This objection was sustained before the justice of the peace. Defendant appealed to the circuit court, where the counterclaim was allowed. Norden appealed from the judgment of the circuit coml. Dixon, 0. J., in discussing the question whether this claim was a proper coun- terclaim, says: "After a careful examination of the question of law involved in the rejection of the $6 item, we are of the opinion that the circuit court was correct in holding that the justice was in error when he excluded the evi- dence offered by the defendant in proof of the item. * * * The question presented on the rejection of the $6 Item is an interesting one, upon which there exists considerable contrariety of opinion and decision, both in England and In this country. It was a charge of that sum, made by the defendant against the plaintiff for pasturing the plaintiff's cattle, which the defendant testified the plaintiff had let Into his (the defendant's) field by laying down defendant's fence for that purpose. The objection sustained by the justice was that the laying down of the fence and tui'uing in of the cattle was a trespass on the part of the plaintiff, which could not be brought in or proved as a set-off or cross demand in this form of action, but that defendant must resort to his action of trespass against the plaintiff to recover the damages which he has sustained. It is not to be denied that there are numerous de- cisions of most respectable courts sustaining this view, while, on the other hand, there is an equal weight of most respectable authority also for holding (27) § 19 OF THE ACTION. [PART I the plaintiff's property for more than its value, the latter would be interested in holding him for the money as received for his use, and to do so he must waive the tort; if, however, it was sold for less than its value, his interest would lead him to ignore the terms of the sale and proceed for the conversion. In those states where the true owner is authorized to treat a tortious taking or holding as a sale, he would, doubtless, be able to recover the true value, as for goods sold to the defendant, although the lat- ter may have parted with them for a less price. 6. At common law it is necessary, in actions upon contract, to join as defendants every surviving obligor or promisor, while in actions of tort each tort-feasor is severally liable. In cases where a tort may be waived, it may not always be convenient to ascertain all the wrong-doers, so as to charge them as upon a promise; and, in thus suing a part, the plaintiff risks the delay that may arise from an answer showing a defect of parties. This consideration, however, will have no weight in those jurisdictions that authorize suits against any one or more of those who may be jointly liable. 7. In some of the states, imprisonment for debt is allowed upon judgments in ac- tions of tort, while denied in those sounding in contract.*^ If the creditor in those states, desires satisfaction out of the body, and if the form is allowed to control the fact, he will make his election with reference to that end. 8. When one may seize or replevy goods, or sue for their value, he may be controlled in his choice by his opin- ion of the defendant's solvency. 9. A purchaser may wish to en- force a broken contract either by seeking damages or a specific per- formance, or he may consult his interest by rescinding it. that a promise to pay will be implied under such circumstances, upon which an action of assumpsit may likewise be maintained. The question being new in this court under our present statutes, we are at liberty to adopt such as, in otu" judgment, will best subserve the ends of justice, which is, or ought to be, the object of all rules laid down in the course of judicial proceedings." Challiss V. Wylie, 35 Kan. 506, 11 Pac. 438; Muth v. Frost, 75 Wis. 166, 43 N. W. 655; Empire Transfer Co. v. Boggiano, 52 Mo. 294; Gordon v. Bruner, 49 Mo. 570.] 43 [Pierce v. Gary, 37 Wis. 232; Sawyer v. Nelson, 44 111. App. 184; John- son v. Morton, 94 Mich. 1, 53 N. W. 816.] (28) CH. lU.j PLAINTIFFS IN ACTIONS EX DELICTO. § 20 CHAPTER in, OF PARTIES TO ACTIONS. 1. Parties Plaintiff in Actions founded on Torts. Section 20. Scope and Order of the general Inquiry. 21. The general Eule as to parties plaintiff in actions ex delicto. 22. Plaintiffs in actions for Injuries to Land. 23. Plaintiffs in actions for Injuries to personal Property where the Owner is not iu Possession. 23a. Plaintiffs in actions to recover Land sold when held adversely. 24. As to Joinder of Plaintiffs in actions for injuries to property, 25. Plaintiffs in real and mixed Actions. 26. Plaintiffs in actions for personal Injuries.' 27. Plaintiff in actions for Injuries to married Women. 28. Plaintiffs In actions for Injuries to Servants— Seduction— Rights of Parent in Injuries to Minors. 29. The Minor may also sue. 30. Parties as authorized by Statute— 1. In Seduction. 31. Continued— 2. When the Injury causes' Death— Lord Campbell's Act. 32. Continued — 3. Other similar Provisions. 33. Continued — 4. Plaintiffs in actions for Waste. 34. Continued — 5. Joinder of Husband and Wife. 35. Continued — 6. Plaintiffs in actions to protect the separate Estate of married Women. 36. Continued— 7. In Injm-ies to same held under Married Woman's Acts. 37. The statutory and the trust Estate further considered. 38. As to Assignees of Rights of Action arising from Torts. 39. What Rights of Action so arising survive under the Statute of 3 Edward III. 40. Statutes in the several Code States— New York, Missoin-i, Arkan- sas. 41. Same Subject— Statutes of Ohio, Kansas, Nebraska, Indiana, and Iowa. 42. Continued— Wisconsin, Kentucky, Oregon, and Minnesota. 43. Construction of these Statutes. 44. When does a Claim for a personal Injury become a Debt. (29) i§ 21 OF THE ACXION. [PART I. § SO. The Scope and Order of the general Inquiry. In considering who siiould be the plaintiffs and who should be made defendants in civil actions, I shall not confine myself to pro- visions upon the subject found in the Code, but, in as brief a manner as is consistent with the importance of the subject, treat of the nec- essary and proper parties ^ in the different classes of actions, noting the changes and their effect made by the codes of procedure and by other statutes, in the so-called code States; and, first, I will speak of parties plaintiff in actions ex delicto; second, of parties plaintiff in actions ex contractu; third, of parties plaintiff in actions for equitable relief; fourth, of parties defendant in actions ex delicto; fifth, of parties defendant in actions ex contractu; and, sixth, of parties defendant in actions for equitable relief. In the course of the inquiry I wDl endeavor to give the scope and effect of certain provisions of the Code, in regard to parties, which are taken from the equity practice, as applied to actions for the recovery of money or of specific property. § 21. The general Rule as to parties plaintiff in actions ex delicto. In general, in actions founded upon tort, the person who has suffered the injury must bring the action, for he is the party in interest. This is the rule at common law ; it is expressly recognized by the Code, and will suffice in most cases where one would bring an action for the redress of a wrong arising from a tort Yet many questions have arisen, growing out of the nature of the injury, the relations held to the property affected, or held by or to the persons who have suffered, which modify the application of the rule, and which should be considered. 1 fNecessaiy or proper parties are all persons who have an interest In the subject and object of the suit, and all persons against whom relief must be obtained in order to accomplish the object of the suit. McArthur v. Scott, 113 U. S. S40, 5 Sup. Ct. 652; Williams v. Bankhead, 19 Wall. 563; Stevenr son V. Austin, 3 Mete. (Mass.) 474.] (30) CH. III.], PLAINTIFFS IN ACTIONS EX DELICTO. ,§ 22 § 23. Plaintiffs in actions for Injuries to Land.* Trespass upon land is primarily an injury to the possession; and if the action be for the direct wrong, for the immediate injury, the person in possession must bring the suit, unless he hold for another as servant or agent, in which case the principal must be the plain- tiif.^ If the one in possession be a tenant or the holder of a par- ticular estate, and the injury be of a permanent character, or such as to affect the inheritance or the estate of the immediate rever- sioner or remainder-man, suit at common law may also be brought by such owner of the next estate,* and by statute an action for waste may be brought by any remainder-man or reversioner.'' The former, in common-law pleadings is called an action of trespass, the latter an action on the case; and though the Code does not name the action the same facts are pleaded and the same rules hold in respect to the parties in interest. To illustrate: if a trespasser should wrongfully enter upon land held under a lease, where the tenant had no right to, or interest in, the growing trees, and should destroy a growing crop and cut down such trees, the tenant would have no interest in, and should not be a party in am action for, the destruction of the trees, nor should the landlord be a party in an action for destroying the crop." ^[General Form of Pehiion for Trespass upon Lands. [Title of case. [1st. Allege the time and nature of the trespass upon the land, describing it; also title. L2d. Allege the injury and its extent [3d. Add prayer.] 3 1 Chit. PI. 62. i 1 Chit. PI. 63. 5 See post, § 33. « [In this class of cases there may be some difficulty experienced in determin- ing the proper party or parties plaintiff, but if the general "Code Rules," as to parties plaintiff, is kept in mind, many of these difficulties wiU, be rendered easy. This rule is "All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title." See Code Proc. N. Y. § 117; C"de Civ. Proc. Ohio, § 34; Rev. St. Ind. § 262; Code Civ. Proc. Kan. § 35; Rev. St. Mo. i 1992; Code Civ. Proc. Neb. § 40; Code Civ. Proc. Cal. §§ 378, 381; (31)' § 23a OP THE ACTION. [PART I. § 23. Plaintiffs in actions for Injuries to personal Prop- erty where the Owner is not in Possession. An action for an injury to, or for the conversion of, personal property may be brought by the general owner, although in the possession of another, provided he have the right to immediate pos- session; and, where he has not such right — as, if the property be Injured while in the hands of a bailee for an unexpired term — he may, if the injury affect his reversionary interest, recover to the ex- tent of the injury to such interest. The one having the possessory title has also his right of action, and a recovery by one for his special injury is no bar to a suit by the other.'' The party in pos- session who is answerable to the general owner, may sue for the full value, and if either he or the general owner recover such value, the other will have no right of action.' The action for the posses- sion of personal property will necessarily be in the name of the person entitled to immediate possession." § 23a. Plaintiffs in actions to recover Land sold -virhen held adversely. At common law one cannot convey land held by another ad- versely, that is, as against the adverse holder, the deed is void and the grantee cannot recover the land. But the grant is not without Rev. St. Wis. § 2602; Code Iowa, § 2545; Code Fla. § 68; Code Civ. Proc. Nev. § 12; Civ. Code Ky. § 34; Code Civ. Proc. S. C. § 140; Comp. Law& Dak. § 4877; Code N. C. § 60; Rev. St. Idaho, § 4101; Code Wash. § 143; Code Civ. Proc. Mont. § 15; Rev. St. Ai-iz. § 692; Code Civ. Proc. Colo. § 10; Rev. St. Wyo. § 2394. [In an action for trespass to lands it is sufficient generally to allege in the petition or complaint: [1st. The title or nature of the plaintiff's possession, with a description of the property and the nature of the trespass. |,2d. State nature and amount of injury by describing the same. [3d. Prayer for relief.] ^ 1 Chit. PI. 62. 8 Id. » lExecutors and administrators may support an action for an injury to the personal property of the deceased. 1 Chit. PI. (11th Am. Ed.) 169.] (32) CH. III.] PLAINTIFFS IN ACTIONS EX DELICTO. § 23a legal effect; as between grantor and grantee it passes all tlie inter- est of the former, it is only void as between the grantee and adverse holder and those in privity with him; it is good indeed as to all the world except such holder and his privies. Admitting the adverse holding to be wrongful, in an action by the grantee, the defense of adverse possession at the time of the grant is a good one for the reason that such grant, as against the defendant, conveys no right or title. The grantor's title as to him, is still good, and hence, in an action by the grantor, his conveyance cannot be set up to defeat his title, that is, it cannot be set up by the person in respect to Avhom it is void. Hence, the obvious common-law rule as to the proper plaintiff^" in case of a conveyance of land held adversely, "when the action is brought against the person holding adversely, or any one who has succeeded to his right, the grantor must sue. But as against a stranger — one who does not stand in legal privity with him who held adversely when the deed was made — the gran- tee must sue." Upon the adoption of the code in New York "a doubt arose wheth- er an action to recover lands thus conveyed could be brought by any one. If brought in the name of the grantee he could, as against the party in possession, show no title; for, as against such party, his deed was void. If brought in the name of the grantor, it might be shown that he was not the real party in interest, because if he recover, his recovery would inure, not for his own benefit but the benefit of the grantee." Section 111 of the Code of Procedure was therefore amended ^^ to remove the doubt by providing that an ac- tion may be maintained in the name of the grantor ^^ and this provi- sion is adopted in North and South Carolina.^* Independent of any express provision of this kind the authority to thus use the grantor's name is implied. "We are satisfied,^^ both 10 As given by Bronson in Livingston v. Proseus, 2 Hill, 526. 12 Code Civ. Proc. § 1501. 13 HAMILTON V. WRIGHT, 37 N. Y, 502. Woodrbff, from wliose opinion I have made the citation in the text says that the provision creates no new authority, only limits the operation of the previous clause which requires the action to be in the name of the real party in interest. 14 Clode N. C. § 55; Code S. 0. § 134. 15 Says Worden, J., in Steeple v. Downing, 60 Ind.^ on page 487. BLISS CODE PL. 3 (33) § 24 OP THE ACTION. [PART I. upon reason and authority, that when one conveys land to an- other which at the time is in the adverse possession of a third per- son, whereby the title cannot pass as against the party thus in possession, the grantor impliedly authorizes the grantee to use the grantor's name, in an action to recover the land from the party thus in the possession thereof." ^° In states^'' where a conveyance of land held adversely is authorized by statute, the action wiU neces- sarily be in the name of the grantee, but where, im this regard, the common law prevails, it must be in the name of the grantor to his use. § 24. As to Joinder of PlaintiflFs in actions for injuries to property. The obvious rule is "that where two or more are jointly entitled, or have a joint legal interest in the property affected, they must, in general, join in the action."^* This is the statutory rule, as wUl hereafter appear in considering more especially the rules derived from the equity practice.^" Thus, partners should join in seeking redress for an injury to the partnership property, and in buying real estate for partnership purposes they are also allowed to join in an action for a deception practiced on them in its purchase.^" They may, also, join in a suit for a libel published concerning them in their joint business,^^ and for falsely and fraudulently recommend- ing an insolvent person as worthy of credit.^^ 16 [Such an action can be maintained independent of the consent of the gran- tor, and is supposed to be conducted by the grantee, alone, for his own benefit; but it must necessarily be sustained, if sustained at all, upon the validity of the title originally existing in his grantor. It is brought in his name, and upon the theory of an original right in him to the possession of the property. Cham- berlain v. Taylor, 105 N. Y. 185, 11 N. E. 625. Such action does not abate by the death of the grantee; it may be continued by his devisees. Ward v. Reynolds, 25 Hun, 385, 62 How. Pr. 183.] 17 As in Missouri. Rev. St. 1879, § 673. 18 1 Chit. PI. 64; and so, also, 1 Saund. PI. & Bv. 744, 745. 19 Post, §§ 61, 62. 20 Medbury v. Watson, 6 Mete. (Mass.) 246. 21 1 Chit. PI. 64. 22 Patten v. Gurney, 17 Mass. 182. (34) CH. III. J PLAINTIFFS IN ACTIONS EX DELICTO. § 24 Tenants in common^^ of the realty, although, their estates are several, must join in personal actions for injuries to the estate,^* as several actions for the same trespass, or other injury not affecting the title, against the same person by those having a common inter- est in the property injured will not be permitted, and because the damages survive to all.^^ Another reason for distinguishing, in this regard, personal from real actions doubtless is that the posses- sion is joint, the possession of one being the possession of all, and all are equally affected by the injury in proportion to their interest; but the title is several, springing, perhaps, from different sources, and an injury to, or claim affecting, the title of one tenant in com- mon may have nothing to do with that of another. ^^[As a Oeneral Rule. [Tenants in common must join in bringing personal actions in wliich all are interested; and tliis is true whetber arising ex contractu or ex delicto. Hill v. Gibs, 5 Hill, 56; Tbompson v. Hoskins, 11 Mass. 419; 2 Bl. Comm. 194, note 12; May v. Slade, 24 Tex. 205; King v. Anda-son, 20 Ind. 385; Craw- ford v. Ginn, 35 Iowa, 543. \^The Defense for Nonjoinder of Tenants in Common. [1st. In actions ex delicto, this defense sbould be raised by plea in abatment at common law, but under the Code either by demurrer or motion depending upon the statute. 1 Chit. PI. 74; Wheelwright v. Depeyster, 1 Johns. 471; Rich V. Penfield, 1 "Wend. 380. See, also, Sedgworth v. Overend, 7 Term R. 279. [2d. In actions ex contractu this defense at common law may be taken ad- vantage of either under the general denial or by demurrer. 1 Phil. Ev. 210; Burgess V. Abbott, 1 Hill, 476. {Release hy One Having Joint Interest. [Payment to one tenant in common for the use and occupation of the land, and for waste committed thereon, is a good defense to an action by the other tenants for same. Grossman v. Lauber, 29 Ind. 618; Stappleton v. King, 33 Iowa, 28; HaU v. Gray, 54 Me. 231. [All Owners of Uhattels must Join. [The rule that joint owners of chattels must join in an action for damages for a wrongful conversion or for injuries or to recover its possession is weU settled. Reeder v. Sayre, 70 N. Y. 180; Swarthout v. Chicago & N. W. Ry. Co., 49 Wis. 625, 6 N. W. 314; Seip v. Tilgman, 23 Kan. 289.] 2* Low V. Mumford, 14 Johns. 426; Greenly v. Hall, 3 Har. (Del.) 9; Depuy V. Strong, 37 N. Y. 372; Lane v. Dobyns, 11 Mo. 106. 25 1 Chit. PI. 65; Bac. Abr. tit, "Joint Tenant," k, (35) § 24 OF THE ACTION. [PART I. Notwithstanding, in general, tenants in common must join in personal actions, yet, if the injury may not affect all the owners, they are required at common law to sue severally. Thus, where a vendor has made to the several purchasers false and fraudulent representations in regard to the estate, to induce its purchase, all are not necessarily affected by the deceit, for some may have known the facts.^° Under the code, however, there should be no imperative obligation to bring separate actions. At common law, in a joint ac- tion, if one of the plaintiffs fails to show his right of action, there can be no recovery by the others ; hence, the declaration must show a joint right, one that exists in favor of all the plaintiffs.^'' But under the new system, the equity rule which permits "all persons having an interest in the subject of the action and the relief" to be joined as plaintiffs, is adopted in terms,^* and judgment may be given in favor of one or more of the plaintiffs and against the others. In a case like the one just noted, if two or more tenants in common, who derive title from the same person and by the same instrument, seek to repudiate the purchase or recover damages upon the ground of fraudulent representations which induced it, and so state the facts that they apply to each purchaser, under this provision of the stat- ute it would seem that they should be permitted to join in the ac- tion; and if it should appear that one or more of the plaintiffs knew the facts and did not rely upon the representations, the judgment might be against him or them, although in favor of the others. But this question has not been authoritatively decided. 28 Baker v. Jewell, 6 Mass. 460. 27 [Steph. PI. (Tj'ler's Ed.) p, 26; 1 Chit. PI. S. And this is true whether the parties are persons or corporationjs. New York, etc., Co. v. Fulton Bank, 7 Wend. 412; Henderson v. Sherman, 47 Mich. 267, 11 N. W. 153: Butterfield v. Gilchrist, 53 Mich. 22, IS N. W. 542.] 28 The operation of this rule is considered hereafter, sections 73-76, and see Qext section. (36) *^U- lil-J PLAIiNTIFFS IN ACTIONS EX DELICTO. , § 25 § 25. Plaintiflfs in real and mixed Actions. At common law, in real and mixed actions, coparceners,^" and joint tenants are required to join,^" but it is generally held that tenants in common should sever,^^ each suing for his individual interest, his title to which is several.'^ It is, however, held that in ejectment, whUe a joint demise to the nominal plaintiff by several tenants in common is considered bad, a declaration showing several demises of the same date is good ; ^^ thus, by a little change in the form of the declaration, tenants in common are permitted to recover jointly. Justice Kent treated this as substantially reversing the old rule, and at an early day permitted joint demises to the fictitious plaintiff.'* 29 In Bush v. Bradley, 4 Day, 303, where a part of the hen-s had brought ejectment, and objection was made because the others were not joined, Eeeve, J., said: "This objection cannot prevail, since a practice has obtained in this state, where there are several who have a joint title, for one, or any number of them, to sue and recover against him who has no title. Although this is not the rule of the common law of England, yet, as no inconvenience is expe- rienced from this practice long established, it would not be proper to establish the old common law." In Doe v. Read, 12 East, 57, the attorney-general, as amicus curiae, said that the rule was formerly considered to be that in laying demises in ejectment tenants in common must sever, joint tenants must join, and parceners might either join or sever. 30 1 Chit. PI. 65; Vin. Abr. tit. "Parceners," q; Id., tits. "Actions," "Joinder," 2, 17; Bac. Abr. tit. "Joint Tenants," k. 31 1 Chit. PI. 65. [Tenants in common may join in an action for rent where they unite in rent- ing the property. Cahoon v. Kinen, 42 Ohio St. 190; and must join in per- sonal actions for injuries to the estate. De Puy v. Strong, 37 N. Y. 372.] 82 [Stall V. Wilbur, 77 N. Y. 158.] 33 Doe V. Bead, supra. 3* In Jackson v. Bradt, 2 Caines, 169, Kent, J., in oven-uling the objection that the plaintiffs could not recover on a joint demise by tenants in common, admits that, "if the action of ejectment be considered distinct from the fiction of lease, entry, and ouster, two tenants in common could not join at all in the action, for it is a general and settled rule that in all actions, real and mixed, tenants in common must sever, because they have several freeholds and claim by several titles." But he goes on to hold that as the rule has been evaded in the fictitious action of ejectment, by allowing several demises to the nominal plaintiff, and thus enabling tenants in common to obtain pos- session by a single action, a joint demise should be permitted to have the same (37) § 26 OF THE ACTION. [PAKT I. In those States where the action of ejectment has been abolished and the new procedure has not been adopted, it may be doubted whether tenants in common should be permitted to unite in a real action, inasmuch as their title and their interest are seYeral. The Codes of Procedure, however, provide that "all persons having an interest in the subject of the action, and in obtainingi the relief de- manded, may be joined as plaintiffs, except as otherwise provided," etc.'^ This rule prevails in equity pleadings, but the code makes it general, and applies it as well to actions for the recovery of money and specific property. Notwithstanding the title of tenants in com- mon is several, they have an interest in the "subject of the action" — that is, in the property in respect to which the action is brought '° — and in "obtaining the relief demanded," provided the dispossession ap- plies to, all." If the occupant holds adversely to aU the tenants in common, and they all join to recover possession, the pleading should show the interest of each, that the judgment may conform to it. The section of the statute just considered is permissive only. Par- ties are not required to join as plaintiffs unless they are "united in interest" — that is, have a joint interest — and, consequently, ten- ants in common may sue severally at their option, each for his own interest.^* It would seem, however, in the absence of statutory effect. I may add to this ruling of Kent that the reason for the common-law I'ule forbidding a joint demise is not apparent, inasmuch as tenants in com- mon were permitted to jointly lease their property, reserving rent, and jointly to recover the rent so reserved. 1 Chit. PI. 12. It would seem that the logic of the action would permit the joint demise. 35 Code Proc. N. Y. § 117; Code Civ. Proc. N. Y. 1876, § 446; Code Proc. Ohio, § 34; Rev. St. 1880, § 5005; Code Civ. Proc. Ind. § 17; Rev. St. 1881, § 202; Mansf. Dig. Ark. 1884, § 4939; Wag. St. Mo. p. 1000, § 4; Rev. St. 1879, « 3464; Code Iowa 1873, § 2545; Code Iowa 1880, § 2545; St. Wis. 1871, c. 122, § 18; Rev. St 1878, § 2602; Code Civ. Proc. Kan. § 35; Code Civ. Proc. Neb. § 40; Code Civ. Proc. Cal. 1876, § 378; Comp. Laws Nev. 1873, § 1075; Code Civ. Proc. Or. § 380; Code Civ. Proc. S. C. § 140; Code Civ. Proc. Colo. § 11; Code Civ. Proc. N. C. § 60; Code 1883, § 183. 30 As to the meaning of the phrase "subject of the action," see post, § 126. 37 In Kentucky (Woolfolk v. Ashby, 2 Mete. 288) it is held that tenants in common, where the title is the same, may join in ejectment. In Missouri they ai-e authorized to do so by statute. Rev. St. 1879, § 2242. 38 CRUGER V. McLAURY, 41 N. Y. 219. Tenants in common cannot be so "united in interest" as to require them to join in an action for possession, (38) CH. III. J PLAINTIB'FS IN ACTIONS EX DELICTO. § 26 authority, that they must all join for the whole tract, or each must sue for his individual interest. The New York Revised Statutes, which authorized tenants in com- mon to bring one or several actions, did not authorize two or more owners less than the whole to unite in an action.*" This, however, is now permitted by the Code of Civil Procedure of that State (sec- tion 1500) and by the statutes of Missouri,*" of California,*^ and of Nevada." § 26. Plaintiffs in actions for Personal Injuries. Where the injury is to the person — as, by libel or slander,*' as- sault, assault and battery, or false imprisonment — it is usually several, though suffered by more than one, and inflicted at the same time and by the same defendants; and when it is so, each one who Bannister v. Bull, 16 S. C. 220; nor in an action to set aside deeds severally made by them, JefCers v. Forbes, 28 Kan. 174; [Mattis v. Boggs, 19 Neb. 698, 28 N. W. 325; Gray v. Givens, 26 Mo. 291; Thames v. Jones, 9T N. O. 121; 1 S. E. 692; Weese v. Barker, T Colo. 178, 2 Pac. 919.] 39 Fisher v. Hall, 41 N. Y. 416; Cole v. Irvine, 6 Hill, 634. *o Wag. St. 558, § 3; Rev. St. 1879, § 2242. 41 Code Civ. Proc. 1876, § 384. The same Code (section 381) contains the following broad provision in regard to the joinder of plaintiffs in real actions: "Any two or more persons claiming an estate or interest in lands under a com- mon source of title, whether holding as tenants in common, joint tenants, co- parceners, or in severalty, may unite in an action against any person claim- ing an adverse estate or interest therein, for the purpose of determining such adverse claim, or of establishing such common source of title, or of declaring the same to be held in trust, or of removing a cloud upon the same." In Colorado, joint tenancy is, in effect, abolished, and any one having an interest in property may sue for its Injury. Rev. St. 1868, p. 368. 42 Comp. Laws Nev. 1873, § 1077. 43 Smith V. Cooker, Cro. Oar. 512. [In a petition for a libel or slander, you should allege: [1st. The character or profession of the person or business, if, by reason of the character or profession or business, the damages would be aggravated; as, for instance, the plaintiff is an attorney, etc., or that the plaintiff is engaged in a certain business. [2d. That the libelous or slanderous words (setting them out, with proper innuendoes, if necessary; and, if spoken or published in a foreign language, set them forth in the, foreign language, and give their meaning in the English language) were spoken in presence of some third persons, or published, with (39) § 26 OF THE ACTION. [PAET I. has thus suffered must brings his separate action.'''' But there may be a joint suffering, and an action for libel or slander will lie by partners as such for an injury to their partnership business — as, bankers,^' merchants,*" etc. Two persons have been allowed to sue jointly for a malicious arrest of both when the special damage laid was that they had jointly incurred expense in procuring their liberation,*' as, where husband and wife were falsely and mali- ciously imprisoned,** on a joint charge, they were allowed to join in an action, although the husband might have sued alone.*' The court thus held, because the false charge was "grounded upon an entire record by which they were both prejudiced." But the rea- son would apply to all joint malicious prosecutions; a better one is given in the next section. Although, in an action for slandering the wife, the husband is required, as in other actions, to join for her protection, they cannot intent to injure the plaintiff in liis reputation, together with amount of dam- ages claimed. [3d. Add prayer for relief.] a 1 Chit. PI. 64. 45 Forster v. Lawson, 11 Moore, 360. Best, O. J., says: "The case of SMITH V. CKOOKER, Cro. Oar. 512, recognizes the general principle that two persons cannot maintain a joint action for slander— as, for imputing to them the crime of murder— there being no joint interest to be injured; for the wrong done by the slander to one is no wrong to the other, but the injury to each would be different, according to circumstances. If, however, two or more persons have a joint interest, and the words spoken or the libel written be injurious to that interest, the case of Cooke v. Batchelor, 3 Bos. & P. 150, as well as the previous authorities, show that the injury may be the subject of a joint action." See, also, note to Ooryton v. Lithebye, 2 Saund. 116. 46 Maitland v. Goldney, 2 Eas.t, 42G. 47 1 Chit. PI. 64; Barratt v. Collins, 10 Moore, 446. •is [ifoi-m for Petition for False Imprisonment, [Title of Case. [The plaintiff complains of the defendant and alleges: [1st. That on the day of , at , the defendant unlawfully and maliciously imprisoned the plaintiff, and deprived him of his liberty for the space of . without any reasonable or probable cause whatsoever, to the plaintiff's damage in the sum of dollars. [2d. Wherefore the plaintiff prays judgment against the defendant for the sum of dollars and his costs.] 49 Dalby v. Dorthall, Cro. Oar. 553. (40) CH. III.] PLAINTIFFS IN ACTIONS EX DELICTO. §^27 unite to recover for a joint slander against them both. The same rule holds as when two or more who hold no such relation have been slandered by one utterance.^" For the slander as affecting the wife, both should join, and as affecting the husband, he should sue alone. This, however, has been changed by statute in some states, as we shall soon see. § S7. Plaintiffs in actions for Injuries to married Women. The right of action is, in general, in the husband, although in some cases the svite must join. The common-law rule °^ is this : If (he cause of action survive to the wife, she must be joined as plaintiff — as when the injury was before marriage, or, if inflicted after mar- riage, it be of such a nature as to bring personal suffering to the wife, or if it injures her personally, as a battery, false imprisonment, or slander by words actionable per se.^^ In such case the suit is only for injury to the wife, and if the husband has suffered loss in con- sequence, he may sue alone for the consequential damage. '^^ In slan- der of the wife by words not actionable in themselves, but from which pecuniary loss results, the husband should sue alone/* for the loss of the wife is ordinarily his. 60 Ebersoll v. Krug, 3 Bin. 555; Gazynski v. Colburn, 11 Oush. 10. 01 [This rule Ms been changed by the married women's acts in many of the states, and in these states she may sue alone. Section 4996 of Oliio Eev. St., provides as follows: "A married woman shall sue and be sued as if she were unmarried, and her husband shall be joined with her only when the cause of action is in favor of or against both her and her husband." Sim- ilar provisions are found in the following Ckides: Mansf. Dig. Arii. § 4951; Code Civ. Proc. Colo. § 6; Rev. St. Ind. § 5131; Code Iowa, ■§ 2562; Gen. St. Kan. par. 4106; Gen. St. Minn. c. 66, § 29; Rev. St. Mo. § 1996; Code Civ. Proc. N. y. § 450 (Code 1890); Rev St. Wis. § 2345. See, also, Knaggs v. Mas- tin, 9 Kan. 547; Fun-ow v. Chapin, 13 Kan. 112; Pavlovski v. Thornton, 89 Ga. 829, 15 S. E. 822. It has been held in Iowa, under existing statutes, in an action to recover damages for malicious prosecution of the wife, that she must sue alone, and that it would be improper to join the husband, Musselman v. Galligher, 32 Iowa, 387; also for a libel upon herself, Pancoast v. Bui-uell, 32 Iowa, 394.] 62 Beach v. Ranney, 2 HUl, 309; Johnson v. Dicken, 25 Mo. 580; 1 Chit. PL 73, and note 3. 63 1 Chit. PI. 73. e* Beach v. Ranney, supra, (41j § 27 OF THE ACTION. [PAKT I. The same general rule holds at common law concerning injuries to the M'ife's. property. If the right of action survive to her, she should join in actions for redress; otherwise not. The reason is plain; no one should be required to respond more than once for the same wrong; and if the husband sues alone for an injury to the person of the wife, or for an injury to her real estate or property which does not become his by the marriage, the wife, upon his death, may sue again. The transfer, by marriage, of the wife's personal property does not carry her right to redress for injuries to her other property, or to her person. Suits by the husband and wife are really suits by the wife, the law requiring the joinder of the husband as the guardian of her rights, and that some one may respond for costs; if the action be of such a nature as to abate by death, it abates by the death of the wife only; "^ if it be revived, it is in the name of her representa- tives, and never in the name of those of the husband. The title to the wife's personal property passes to the husband, and, at his death, goes to his personal representatives; hence actions for injuries to the personalty after marriage are in his or their names.°° If, however, the injury or conversion was before marriage, the right to sue was but a chose in action belonging to the wife, and husband and wife must join.°^ But the title to her real property does not thus pass, only the use. Hence, in actions for an Injury to the land itself, she should join, for it is her action ; but from the disturbance of the possession merely, or from carrying away crops, the husband alone suffers, and he should sue alone. Such are the common-law rules in regard to the joinder of the wife with the husband; they have been materially modified by the statutes known as the Married Woman's Acts, and by the rules of equity in regard to property held for the separate use of the wife, which will be hereafter considered.^' 65 1 Chit. PI. 75. 06 1 Clalt PI. 74. " 1 Chit. PI. 73, 74; Haile v. Palmer, 5 Mo. 403. 68 See post, §§ 35, 36. m CH. Ill J PLAINTIFFS IN ACTIONS EX DELICTO. § 28 § 28. Plaintiflfs^ in actions for Injuries to Servants — Se- duction — Eights of the Parent. The fact that one is a servant cannot impair the right of action for any injury to the infliction of which he or she did not consent. But where there is a loss of service due the master, and which loss was consequent upon the injury, he has also suffered a wrong, and may sue. His right is not affected by the age of the servant, and, both being separate wrongs, a recovery by one is no bar to an action by the other.^" The master may also sue for debauching the servant, although, as to her, the consent deprives the act of the character of a tort. The only common-law remedy for seduction is an action of this kind. There being no other remedy, the fact of service and loss of service is often assumed for the purpose of giving the plaintiff a standing in court; and the conflict of opinion in that class of cases has arisen from the disposition on the one hand to treat the allegation "per quod servitium amisit" as one of a fact to be proved, and on the other hand as a presumption of fact arising from the seduction. As my present object is not to show the law of liability except so far as to indicate the proper parties, I will not discuss this difference of opinion. A daughter is treated as the servant of the father, and, upon his death, of the mother; if she is in the actual service of either, it does not matter whether she is a minor or of age, and if of age, a very slight service will suflfice.^^ But if she be a minor, the loss of "9 [The statutes in most of the code states provide who are the proper par- ties plaintiff in all of these actions. See Code Civ. Proc. Ind. §§ 25, 26 (Rev. St. 1881, §§ 264, 265); Gen. St. Minn. c. 66, §§ 32-34; Code Civ. Proc. Cal. §§ 375, 376; Code Or. §§ 33-35; Code Iowa, § 2556.] 60 [In a few of the states, a woman, if she is unmarried, may maintain an action for her own seduction. Thompson v. Young, 51 Ind. 590; Code Iowa, § 2555; Code Civ. Proc. Cal. ■§ 374; Code Or. § 35; Code Civ. Proc. Ind. § 24 (Rev. St. 1881, § 263). In the action for seduction, it being founded upon the relation of master and servant, it would seem that the proper party plaintiff in each case is the person entitled to the benefit of the service. Cooley, Torts, p. 231, note.] 61 Yossel V. Cole, 10 Mo. 034. (43) § 29 OF THE ACTION. [PAET I. service is presumed, although she be in the actual service of another^ provided the parent is liable for her support, or has a right to her ser\T.ces.''^ Whether a mother, the father being dead, would have a right of action where her minor child was seduced while in actual service of another, the wages being paid to the child, was discussed in the New York Court of Appeals,"' and the right was sustained by a majority of the judges, upon the ground that the mother waa responsible for her support."* The seduction is the gist of the action, and if the father were living when it occurred, and died before the birth of the child, the mother cannot bring the action, "" nor has the parent a right of action if he connived at the seduction."" This mat- ter has been made the subject of legislation in several of the states, and the substance of the changes will be hereafter noted."' § 29. The Minor may also sue. The fact that the parent has a right of action for an injury to the infant child does not prevent such child from suing in its own name for any personal injury."^ As with the master, the parent 62 Martin v. Payne, 9 Johns. 387; Clark v. Fitcli, 2 Wend. 459; MtUvehall v. Millward, 11 N. Y. 343. 63 Furman v. Van Sise, 56 N. Y. 435; [Gray v. Durland, 50 Barb. 100; Badg- ley V. Decker, 44 Barb. 577.] 64 [Where a minor, while living with and being supported by its widowed' mother, is injured by the negligence of defendant, the mother is entitled to recover for the loss of services, and for the labor and expenses reasonably In- curred in the care and cm'e of the minor. Horgan v. Pacific Mills, 158 Mass. 402, 33 N. B. 581; County Com'rs v. Hamilton, 60 Md. 340; Natchez, J. & 0. R. Co. V. Cook, 63 Miss. 38.] 65 Heinrichs v. Kerchner, 35 Mo. 378; Vossel v. Cole, supra; [Logan v. Mur- ray, 6 Serg. & R. 177. While the mother may not maintain the action for the seduction of the daughter after the death of the husband, she may maintain an action for the expenses ineurrod in attending her confinement, and for the loss of her services. Sargent v. Dennison, 5 Cow. 106; Vanhorn v. Freeman,. 6 N. J. Law, 322. Conti-a, Logan v. Murray, 6 Serg. & R. 177.] 66 Beddie v. Scoolt, Peake, 240; Vossel v. Cole, 10 Mo. 634. 6TPost, § 30. 68 [And in such case a settlement with the minor for such injury is no de- fense to an action against defendant by the parent for the loss of services, etc. Horgan v. Pacific Mills, 158 Mass. 402, 33 N. E. 581. And the fact that the parent, as the next friend, sues for personal injuries to his minor, does- (M) CH. III.] PI.AIKTIFFS IN ACTIONS EX DELICTO. § 30 sues for the loss of service, but the child for the personal injury, and the two actions may proceed together. This is not time of those injuries inflicted by consent of the cWld— as, seduction and en- ticement from ser^•ice; but as to others, whether to the person or the property of the minor, or whether the injury be direct or conse- quential, the rights of the infant in the premises and the remedies afforded him or her, suing, as they must, by guardian or next friend, as may be provided by statute, are precisely the same as those of adults.^^ § 30. Parties as authorized by Statute — 1. In Seduction. Many states have made radical changes in regard to those who may be entitled to sue both for the redress of wrongs which were formerly actionable, and in creating new liabilities. First, I wUl speak of actions for seduction. In Indiana,^" in California,'^ in lowa,''^ and in Oregon ''^ the person seduced being an unmarried woman, may prosecute for the seduction in her own name, although in Ore- gon she must be over the age of twenty-one years. In the States of California,''* of Oregon,'^ of Indiana,'" and of Minnesota " the father, or in case of his death or desertion, the mother, may prose- cute for the seduction of the daughter, and the guardian for that of the ward, although the child or ward be not living with the parent or guardian, and although there be no loss of service. The statute of Kentucky '* simply provides that in actions of this kind an allega^ not constitute a relin(iiiishment by the father of any claim he might assert on account of the minor's diminished capacity to earn during his minority. Texas & P. Ry. Co. v. Morin, G6 Tex. 225, 18 S. W. 503.] 69 Tyler, Inf. 191. 70 Code Olv. Proc. § 25 (Rev. St. 1881, § 264); [Galvin v. Crouch, 65 Ind. 56; Buckles V. Ellers, 72 Ind. 220.] 71 Code Civ. Proc. 1876, § 374. 72 Code 1873, § 2555. 73 Code Civ. Proc. § 35. 74 Code Civ. Proc. 1876, § 375. T- Code Civ. Proc. § 34. 76 Code Civ. Proc. §265. 77 St at Large 1873, p. -780, § 32; Gen. St. 1878, p. 711, § 33. 78 Gen. St. 1873, p. 141. And see Wllhoit v. Hancock, 5 Bush, 572. (45) § 31 OP THE ACTION. [PABT I. tion ^' of loss of service shall not be necessary; and in Oregon a prosecution by the parent or guardian is a bar to an action by the person seduced.*" § 31. Continued — 2. When the Injury causes Death. *^ Lord Campbell's Act, so called, providing that an action may be maintained when death results from an injury for which an action would lie had the injured party lived,*^ has been adopted in terms or 79 [In an action for seduction, it is sufficient, generally, to allege, as to loss of services, that the wrongful act was to deprive plaintiff of them, without alleging ability to perform the services, the nature of them, or the actual loss.] 80 For summary of the law of liability in seduction and citations, see Suth. Dam. c. 27. 81 [At common law, no right of action existed for injuries causing death. The reason for this rule is said to find its som-ce in the feudal system, which would not allow a prosecution for a civil injury where the act amounted to a felony. The reason for this was that the crime worked a forfeiture of all the criminal's property, and, he being also liable to be capitally punished, there would thus be left nothing to satisfy the private demand. One of the earliest cases in the books is Higgins v^ Butcher, which ai-ose in the time of James I., about the year IGOO, and is reported in Brownlow (page 205), and also in Yelver- ton (psisG 89), which lays down the above rule. See, also. Smith v. Sykes, 1 Freem. 224; Baker v. Bolton, 1 Camp. 493; Green v. Hudson River K. Co., 16 How. Pr. 230; Carey v. Berkshire R. Co., 1 Cush. 475; Hollenbeck v. Berkshire E. Co., 9 Cush. 480; Eden v. Lexington & F. R. Co., 14 B. Mon. 165. It foUows, therefore, from the foregoing rule, that whatever right there is in any of the jiffisdictions to recover for injuries causing death must be statutory. Crowley v. Panama R. Co., 30 Barb. 99; Mahler v. Norwich & N. Y. Transp. Co., 35 N. y. 352. Under the civil law there was a different rule. According to Grotius (liber 2, c. 17), he who kills another unlawfully is obliged to make amends to those who had a right to be maintained by the deceased, such as his wife, his children, or his parents, according to the value of what they might have expected to receive from him, considering his age, his fortune, and his employment. 1 Ruth. Inst. c. 17, § 9.] 82 The original act (9 & 10 Vict. c. 93, §§ 1, 2) authorized an action by the executor or administrator for the benefit of the wife, husband, parent, and child of the deceased, the damages to be apportioned among them by the jury; the word "parent" to include step-father and step-mother, and grandfather and grandmother, and the word "child" to include grandson and granddaugh- ter, step-son and step-daughter. The time in which the action is brought is limited to twelve months, although in the United States the general limitation (46) CH. III.] PIAIKTIFFS IN ACTIONS EX DELICTO. § 31 in substance in most of the states ; but the persons in whose names or for whose benefit the damages are recoTerable are not always the same. In New York ^' the action must be brought in the name of the personal representatives ** of the deceased for the use of the hus- band or wife and next of kin, to be distributed like personal prop- erty-. In Missouri ^^ the damages are for the use of, and are recover- able only, first, by the husband or wife; second, by the minor chil- dren; and third, if the deceased be a minor and unmarried, by the father and mother, to be divided equally, or by the survivor of them. In Wisconsin *" the damages are recoverable by the personal repre- sentatives, to be paid to the husband or wife; if no husband or wife, to lineal descendants; and if no descendants, to lineal ancestors. In CaUfomia *^ they are recoverable by the heirs or personal repre- sentatives of the deceased if he was of age, and by the father or mother if he was a minor; the class of injuries thus made actionable is extended in terms to cover such as are received in falling through any opening or defective place in any sidewalk, street, alley, square, or wharf. In Oregon '^ the personal representatives must bring the action, and no special use is designated. In Ohio,*^ in Indiana,^* in Minnesota,^^ in Kansas,"^ and in Nebraska"^ the damages are is two years. Tlie act assumes In the preamble tliat "No action at law is now- maintainable against a person wbo, by his wrongful act, neglect, or default, may have caused the death of another person," etc.; and such has been the general view in England and in the United States. The attention of the public has been directed anew to the subject by an opinion of Dillon, J., in Sullivan v. Union Pac. R. Co., 3 Dill. 334 [Fed. Gas. No. 13,599], where an opposite view was taken. 83 Code Civ. Proc. § 1903. 81 [The statutes of each of the states provide who shall be the proper parties plaintiff in every cause of action for injmies causing death. The student is therefore directed to examine the statute of his state upon this question.] 85 Wag. St. p. 520, § 2; Rev. St. 1879, § 2121. 86 Rev. St 1871, p. 1574, § 13; Rev. St. 1878, § 4256. 8T Code Civ. Proc. 1876, § 377. 88 Code Civ. Proc. ■§§ 366, 367. 89 Swan & C. St. 1140; Rev. St. 1880, § 6135. 80 Code Civ. Proc. § 784; Rev. St. 1881, § 284. 91 St. at Large 1873, p. 913; Gen. St. 1878, p. 825. 92 Code Oiv. Proc. § 422. 93 Gen. St. 1873, p. 272; Brown's St. 1881, p. 211. (47) § 32 OF THE ACTION. [pART I. recoverable by the personal representatires, for the use of the widow and next of kin generally, to be distributed like personal property, in Ohio by the jury. In Indiana the damages "inure to the ex- clusire benefit of the widow and children, if any, or next of kin, to be distributed," etc. In South Carolina the statute defines as bene- ficiaries "the wife, husband, parent, and children," to be divided ac- cording to the rule of distributing personal assets."* § 33. Continued— Other similar Provisions. In other States, in most of which this act has not been adopt- ed, there are similar enactments applicable to special kinds of injuries. In Kentucky °^ an action is given to the widow and minor children of every person killed by the careless, wanton, or malicious use of fire-arms and certain other weapons; and, also,^" against the principal or seconds in a duel. Damages are also re- coverable when one, not in its employ, loses his life from the negli- gence or carelessness of the proprietors of a railroad or their agents or servants without specifying for whose use, thus making them personal assets. The second section of the Damage Act of Missouri °' covers the same ground, and more, extending the liability to the owners of steamboats and stage-coaches; and if the injury and death, result from negligence while running the cars, etc., it gives a right of action if "any person" shall die from the injury, which language at one time was held to include employees, when the negligence was that of a fellow-servant."^ If, however, the injury results from the defective construction of the railroad, or the locomotive or cars, the steamboat or machinery, or the stage-coach, no one but passengers are included in the terms of the act; and in either case the same persons should bring the suit that are named in the last section as entitled in Missouri to sue under the Lord Campbell Act. In Iowa "" 94 Rev. St. 1874, p. 508; Gen. St. 1882, § 2184. 85 Gen. St. 1873, p. 142. 98 Gen. St. 1873, p. 375. 87 Wag. St. 519; Rev. St. 1879, § 2121. 98 Shultz v. Pacific R. Ck)., 36 Mo. 13, overruled in Proctor v. Hannibal & St. J. K. Co., 64 Mo. 112. 88 Code 1873, § 2526. (48) ^"'I- Ill-J PLAINTirt'S IN ACTIONS EX DELICTU. § 33 the civil remedy is not merged in a public oifense, but may, in all cases, be enforced; and if a wrongful act produces death, the dam- ages shall be personal property; but if the deceased leave a husband, wife, child, or parent, they shall not be liable for his debts. By an- other section"" the father, or, in case of his death, imprisonment, or desertion, the mother, is authorized to prosecute for the expenses and actual loss of serrice arising from the injury or death of a mi- nor child. In Nevada "^ and in Indiana "^ the father, or, in case of his death, or desertion, the mother, may sue for the injury or death of a child, and a guardian for that of a ward.^''^' § 33. Continued— 4. Plaintiffs in actions for Waste.'"* At common law the remedy for waste is imperfect, inasmuch as suit can be brought in the name only of the immediate reversioner 100 Code 1873, § 2556. "1 Comp. Laws 1873, § 1074. 102 Code CiT. Proc. § 27; Rev. St. 1881, § 266. 103 It is held in Indiana (Ohio & M. R. Co. v. Tindall, 13 Ind. 366) that section 27 of the Code, and section 784, referred to in the last section, are consistent and both valid— the former referring to infants who are injured, and the latter to adults. lOi [By an old statute (statute of Gloucester, 6 Edw. I., A. D. 1278), the com- mitting of any act of waste was a cause of forfeiture of the thing or place wasted in case a writ of waste was issued against the tenant for life, and, of course, the proper party plaintifC was the immediate reversioner or remain- der-man. But tills writ has been abolished in England (3 & 4 Wm. IV.), and a tenant for life is now liable only to damages in an action at law for waste already done, or suit in equity to resti'ain the commission of waste. "Waste is a spoil or destruction in houses, gardens, trees, or other corporeal heredita- ment, to the dishersion of him that hath the remainder or reversion in fee simple." Co. Litt. 53; 2 Bl. Comm. 281; 3 Bl. Comm. 223. "It is a lasting damage to the reversion caused by the destruction, by the tenant for life or years, of such things on the land as are not included in its temporary profits." The general rule as to who can maintain an action for waste is he who has an estate of inheritance in the thing wasted. Greene v. Cole, 2 Saund. 252, note 7; Pigot V. Bullock, 1 Ves. Jr. 484; Whitfield v. Be wit, 2 P. Wms. 242; Wil- kinson V. Wilkinson, 59 Wis. 557, 18 N. W. 527; Stout v. Dunning, 72 Ind. 343. In many of the jurisdictions of the United States and Canada, this sub- ject is regulated by statutes, which provide who may maintain this action. What is waste in each case is a question for the jury, to be determined by BLISS CODE PL. 4 (49) § 33 OF THE ACTION. [PART I. or remainder-man.^'"* It will not lie in favor of a remainder-man if between him and the tenant a particular estate intervenes, and doubtless for the reason that waste can be made to work a forfeit- ure, in which a remote reversioner or remainder-man can have no interest. Although the value of his expectant estate can be thus greatly impaired, his only remedy is by bill for injunction. The Re- vis(d Statutes of New York, some twenty years before the adoption of the Code of Procedure, provided, however, that "a person seized of an estate in remainder or reversion may maintain an action for an injury done to the inherits nee, notwithstanding any intervening estate for life or years." ^"^ This provision has been adopted in terms in Indiana, ^°^ in lowa,^"* in Kansas,^"" in Oalifornia,^^" in Oregon,"^ and in substance in Kentucky,^^^ in Missouri,"^ and in Wisconsin.^" The statutes of Calif ornia ^^° and of Oregon ^^^ make th'^ following additional provision: "If a guardian, tenant for life or years, joint tenant, or tenant in common of real property commit waste thereon, any person aggrieved by the waste may bring an ac- tion," etc.; and the word "commit" in this connection is held to in- clude permissive waste.^^^ At common law the heir is not permit- ted to bring an action for waste committed during the life of the an- cestor, nor the gxautee of a reversion for waste committed before the grant; ^^' for the rule is that no one can maintain the action un- less he has an estate of inheritance at the time when the waste was committed.^^^ In connection with the statutory provision referred the usages and practice of the country. Keeler v. Eastman, 11 Vt. 293; Jackson v. Brownson, 7 Johns. 227; Profflt v. Henderson, 29 Mo. 325.] 105 1 Chit. PI. 63; Co. Litt. 53a; Kobinson v. Wheeler, 25 N. Y. 256. 100 Code Civ. Proc. N. Y. (Banks' Ed.) § 1665. 10T2 St. 1862, p. 361; Rev. St. 1881, § 287. 108 Code 1873, § 3337. 100 Gen. St. 1868, p. 542, § 23; Comp. Laws 1879, p. -521. no Civ. Code 1876, ^ 826. 111 Gen. Laws 1872, p. 589, § 37. 112 Gen. St. 1873, p. 607. 113 Wag. St. 884, § 43; Rev. St. 1S79, § 3108. 11-1 Rev. St. 1871, p. 1695; Rev. St. 1878, § 3175. 115 Code Civ. Proc. 1876, § 732. no Gen. Laws 1872, p. 180, § 334. 117 rarrott v. Barney, Deady, 405 [Fed. Cas. No. 10,773]. lis Greene v. Cole, 2 Saund. 252, note 7. no Id. CO) CH. III.] PLAINTIFFS IN ACTIONS EX DELICTO. § 34 to as adopted in New York and other states, the heir, in the states of New York,"" Kentucky, Missouri, Wisconsin, and Iowa, is ex- pressly authorized to bring the action for waste committed during the life of the ancestor. § 34. Continued— 5. Joinder of Husband and Wife. The Practice codes of Ohio,"^ Indiana,"^ Kentucky,"' Wiscon- sin,"* California,"^ Oregon,"" Nevada,"^ North Carolina,"^ South Carolina,"" and Colorado,"" proTide that when a married woman is a party, her husband must be joined with her,"^ except when the action concerns her separate property, she may sue alone; and when it is between herself and husband, she may sue or be sued alone. 120 Code Civ. Proc. N. Y. (Banlss' Ed.) § 1652. 121 Civ. Code, § 28, amended in 1870, by rejecting the next friend. Rev. St. 1880, § 4996. 122 Code Civ. Proc. § 8; Eev. St. 1881, § 254, amended by omitting the clause requiring the joinder of the husband. 123 BuUitt's Code, § S4. , 12* Rev. St. 1871, c. 122, § 15; Rev. St. 1878, § 2608. 125 Code Civ. Proc. 1876, § 370. 126 Code Civ. Proc. ■§ 30. 127 Comp Laws 1873, § 1070. 128 Code Civ. Proc. § 56 (Code 1883, § 178, amended), 128 Code Civ. Proc. § 135. 130 Code Civ. Proc. § 6. 131 [The common-law rule which prevented the wife from bringing an action in her own name, and the necessity of joining husband and wife as coplaintiffs in actions where the wife should be a party, has been greatly modified or entirely swept away in all the states which have adopted the reformed system of pro- cedure; and in those states there is now no instance where the husband and wife must, or even may, join merely because of their marital relations. They are only proper coplaintiffs when, by virtue of their joint rights, it is made necessary. See Code Civ. Proc. N. Y. § 450 (as amended in 1890), which pro- vides as follows: "In an action or special proceeding a married woman ap- pears, prosecutes, or defends alone or joined with other parties as if she was single. It is not necessary or proper to join her husband with her as a party in any action or special proceeding affecting separate property. The husband is not a necessary or proper party to an action or special proceeding to recover damages to the person, estate, or character of his wife, and all sums that may be recovered in such actions or special proceedings shall be the separate prop- erty of the wife. The husband is not a necessary or proper party to an (51) § 35 OF THE ACTION. [PART I. In New York, Ohio, Indiana, Oregon, Missouri, and South Carolina, when she sues or is sued alone, the next friend of the Equity Prac- tice is expressly repudiated; and in California, Kentucky, Wiscon- sin and Nevada nothing is said in the Code upon the subject. In California the wife may also sue or be sued alone, when living sep- arate from her husband. In lowa,^''' Minnesota,^'' Kansas,^^* Ne- braska,^''^ and New York,"° a married woman is required to sue, and is subject to be sued, as though she were unmarried; while in Missouri,^" by the last named statute, in all cases where the wife is a party, the husband shall be jollied, unless the action is between the two, in which, case they may both appear by attorney. In Arkan- sas,^'* in addition to her right to sue for, and on account of, her separate estate, she may also sue alone for any injury to her char- acter, person, or property, and is liable to be thus sued in respect to any trade or business carried on by her under the statute. The Married Woman's Acts of most of the states, in addition to the above code provisions, allow a married Avoman to sue and be sued as if sole, in respect to her separate property, and to bring suit in her own name for injuries to her person or character. § 35. Continued — 6. PlaintiflEs in actions to protect separate Estates of married Women. We have just seen that a married woman may sue alone concern- ing her separate property. In bringing an action to protect such property from an injury — as from a trespass, or for a conversion of her personal property — should it be brought in the name of the wife? In answering this question we must consider the nature of her action or special proceeding to recover damages to the person, estate, or char- acter of another on account of the wrongful acts of his wife, committed with- out his instigation."] 132 Code 1873, § 2562. 133 1 St. at Large 1873, p. 780; Gen. St. 1878, p. 710, ■§ 29. 134 Gen. St. 1868, c. 80, § 20; Comp. Laws 1S79, p. 005. 135 Code Civ. Proc. § 31; Gen. St. 1873, p. 528. 136 Code Civ. Proc. 1870, § 450. 13T Wag. St. 1001, § 8 (K€V. St. 1879, § 3468). This is modified by the act of March 16, 1883, by which as the separate owner of her personal propeily she is authoi'ized to sue In her own name in respect to it 138 Gantt's Dig. 1874, § 4487. (52) <-'"■ III- J TLAINTIFFS IN ACTIONS EX DELICTO. § 35 title."' By the law of England, which, in this regard, prevails in the states where the common law has been adopted, unless modified hy statute, the use of the wife's realty was given to the husband dur- ing marriage, and, upon issue born alive, during his life; and the absolute title to her personal property, except paraphernalia, was vested in him, together with the right to reduce to possession her choses in action. These harsh features of the common law have been, however, modified by the doctrines of the courts of equity, and especially by the encouragement given to settle property upon the wife to her separate use. Hence has grown up a class of equitable titles in married women, by which, through the intervention of trustees, she is enabled to hold and enjoy property, real and per- sonal, as though she were unmarried. The property is usually giv- en to trustees for her separate use, acd the statute of uses is not permitted to execute the use; but if it has been conveyed directly to her, so that she holds the legal as well as the equitable estate, the marriage is not permitted to divest her of the use ; the husband, who by virtue of the marriage takes a legal estate in the property, can hold it only as trustee. This equitable estate in the wife is par- ticularized in this connection to distinguish it from the separate es- tate of the wife created by the Married Woman's Acts, so called, of which I shall presently speak. In answer, then, to the question, and in reference to that which is thus held for the use of the wife, actions for the redress of in- juries which affect the title or the inheritance should, upon princi- ple, be brought by the trustee, the holder of the legal title.^'"' It 139 [If the wife holds both the legal and equitable title, then she is the proper paxty plaintiff in an action to protect the estate in all states where she is expressly authorized by statute to sue alone. See following provisions: Code Civ. Proc. N. Y. § 449; Kev. St. Ohio, ■§ 4995; Mansf. Dig. Ark. § 4936; Code Civ. Proc. Cal. § 369; Code Civ. Proc. Colo. § 5; Gen. St. Conn. § 886; Rev. St. Idaho, § 4092; Rev. St. Ind. i 252; Code Iowa, § 3749; Gen. St. Kan. par. 4105; Civ. Code Ky. § 21; Gen. St. Minn. c. 66, § 28; Rev. St. Mo. § 1991; Code Civ. Proc. Mont. § 6; Consol. St. Neb. § 4.jG7; Gen. St. Nev. § 3028; Code N. C. § 179; Comp. Laws N. D. § 4872; St. Okl. § 4306; Code Or. § 20; Code Civ. Proc. S. C. § 136; Comp. Laws S. T>. § 4872; Comp. Laws Utah, § 3171; Code Civ. Proc. "Wash. § 135; Rev. St. Wis. § 2607; Rev. St. Wyo. § 2384. Aliter if she holds but the equitable title. See above statutory provisions.] 140 Washb. Real Prop. bk. 2, c. 3, § 4, p. C. (53) § 36 OP THE ACTION. [PART I. is his duty to protect the property and protect her in its enjoyment, although, if he refuses to do, she, like other beneficiaries, may have an action to enforce the trust In Missouri,^" upon the tortious conversion of a slave held for the separate use of the wife, she was not permitted to sue in her own name. The court held it to be the duty of the trustee to protect the legal ownership from jeopardy, and that the wife is only entitled to her action when he refuses to do his duty, or when there are obstacles in the way of a legal rem- edy. The general rule in regard to parties when property is held by trustees of an express trust, applies to trusts, of this nature, and is thus stated in a California case: "It is the duty of a trustee to look after, guard, and protect the trust estate against all enemies. * * * That the trustee would be bound to bring an action to prevent waste or trespass upon the land in question, or ejectment to recover its possession in case of ouster, does not admit of doubt. On the contrary, should he refuse to do so, his cestui que trust may bring an action to compel him to do so." ^*^ § 36. Continued — 7. Injuries to her separate Estate held under the Married Woman's Acts. The authority given married women to bring suit in their own name in respect to their separate property must have had ref- erence chiefly to property secured to her separate use by the Mar- ried Woman's Acts, so called, as will appear by a reference to some ■of those acts. This legislation commenced in New York, and from 1848 to 1862 sundry enactments have, in that state, almost wholly overthrown the marital relations of the husband to the wife's property, as recog- nized by the common law. By the first of this series of acts it is provided that the real and personal property of the wife owned at 141 RICHARDSON v. MEANS, 22 Mo. 495. Leonard, J., delivering the opinion [says: "The Code has not changed the rights of parties, but only pro- vided new remedies for their enforcement. It has not abolished the distinc- tion between legal and equitable rights, but the distinction between legal and equitable remedies, so far at least as to provide that one form of suit shall be used for the enforcement of both classes of rights." Peck v. Newton, 46 Barb. 173; Matlocli v. Todd, 25 Ind. 128.] 142 Tyler v. Houghton, 25 Cal. 29. (5d) CH. III.] PLAINTIFFS IN ACTIONS EX DELICTO. § 36 her marriage, or which she may afterwards acquire, with the rents, issues, and profits thereof, are divested of any control of the hus- band or liability for his debts, and are held as her sole and separate property, as though she were single. By the second act trustees are authorized to convey to her property held for her use; by the third the antenuptial debts of the wife are made collecti'ble only out of her separate estate, or out of the property of the husband to the extent of that held by him by antenuptial contract, or otherwise; the fourth pertains to insurance for her benefit; the fifth, re-enact- ing, in part, the first, adds to her separate property that which she acquires by her trade, business, or services — to be collected and in- vested in her own name — authorizes her to sell any personal prop- erty, and carry on any business or perform any services on her sep- arate account, and to sell her real estate and bind her separate prop- erty by the covenants of her deed, allows her to sue and be sued as if sole, in relation to her separate property, and to bring suit in her own name for injuries to her person or character, and provides that no bargain of hers shall bind her husband; and the sixth exempts the husband's property from liability for costs in actions brought or defended by the wife, authorizes their recovery out of her sep- arate property, requires the written consent of the wife to the ap- prenticeship of her child, and to the creation of a testamentary guardian.^*' So far as to enact that the real and personal property of the wife owned at the marriage, or subsequently acquired by her, shall be her sole and separate property, with authority to control it as though unmarried, this New York legislation has been followed in Indiana,"* in Wisconsin,"' in California,"* in Minnesota,"^ in Ar- kansas,^*' in South Carolina,"' and, as to personal property, in Missouri.^'" "We have nothing to do, in this connection, with any i« 4 St. at Large N. Y. 513-517. 1" 1 St 1862, p. 374. 145 Bev. St. 1871, p. 1195. The act was first adopted in 1850. 146 Civ. Code 1876, §§ 162-164, following tlie constitution, article 11, § 14. i« 1 St. at Large 1873, p. 702. "8 Const, art. 12, § 6, and Gantt's Dig. 1874, §§ 4193-4203. 149 Rev. St. 1873, p. 482. 150 Acts 1875, p. 61; Eev. St. 1879, § 3296, amended as to parties by act of March 16, 1883. (55) § 36 OF THE ACTION. [PAET I. of the provisions of these acts except those that create a separate property in the wife, nor with the acts of other states which merely exempt her property from execution to satisfy the husband's debts. The point to be noted is that these acts create a complete legal estate in the wife/" and divest it of the husband's marital interest; hence it is not a trust estate like the equitable estate of the wife, when the property has been conveyed to her separate use. Such an estate may be created by the intervention of trustees, as before, but it is unnecessary in those states. However acquired, the property of the wife is made her sole and separate property, and she has the same legal and equitable interest in it as though unmarried. She, then, as being the legal owner, and not simply a beneficiary, is au- thorized to sue for any injury to the property, and is not confined to actions of an equitable nature to enforce the trust; and hence may bring her action in her own name in respect to such property for a recovery of money,^^^ for deceit,^"*^ for a trespass, for a conversion of personal property,^" or for the possession of the estate itself, both real and personal.^^° The husband, however, if in actual possession isiHauptman v. Catlin, 20 N. Y..247. t52 PALMER V. DAVIS, 2S N. Y. 242. 153 NEAVBERRY v. GARLAND, 31 Barb. 121. is^ACKLEY V. TAliBOX, 31 N. Y. 564; [Mewhirter v. Hatten, 42 Iowa, 288; Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17.] 155 These decisions were made in New York, under the provision as it ex- isted before tlie Revision of 1876, and wlien tbe language of tlie Code upon this subject was the same as in Ohio and otheR States. The Indiana statute, while declaring that the lands of the wife and the profits therefrom shall be her separate property, provides that all suits relative to such lands shall be prosecuted by or against the husband and wife jointly, or if they be sepa- rated, in the name of the wife alone. 1 St. 1862, p. 374. The Code of Proced- ure, after the general provision in regard to parties, contains the following: "Husband and wife may join in aU causes of action arising from injuries to the person or character of either or both of them, or from injuries to the prop- erty of either or both of them, or arising out of any contract in favor of either or both of them." Section 794. [She may also bring an action upon a lease executed in her name. Draper V. Stouvenel, 35 N. Y. 507; to recover damages for an assault and battery upon herself, Hillman v. Hillman, 14 How. Pr. 456; to recover damages for the alienation of her husband's affections and deprivation of his society, Ben- nett V. Bennett, 116 N. Y. 584, 23 N. E. 17; she may also sue alone for wages earned by her outside her husband's household, Brooks v. Schwerin, 54 N. Y. (5t!; CH. III. J PLAINTIFFS IN ACTIONS EX DELICTO. § 37 by consent of the wife, may defend such possession by an action of trespass against an unlawful intruder.^'"' In Wisconsin, the right of the wife to sue in her own name in respect to injuries to her property does not apply to actions for personal injuries, as slander; as to them the common law prevails.^" Aliter in Ulinois.^^^ § 37. The statutory and trust Estate further considered » We thus see that these two kinds of estates, both being for the separate use of married women, so differ in their nature that in ac- tions in respect to them, different rules in regard to parties natural- ly follow. The one created by statute is a legal estate, held by the wife precisely as though the law had never known a change in her interest by virtue of marriage. It, of itself, is no more a trust estate than that of the husband in his own property; the wife is made the absolute owner. On the other hand, so firmly established were the husband's mar- ital rights that, in the absence of legislation, no other way was found to control them in the interests of justice than through the familiar instrumentality of trusts. The chancellor had no power, if the title was in the wife, although to her separate use, to deprive the hus- band of his possession of the estate during the life of the wife, for that was given him by the common law; but in such case he could enforce the provisions of the instrument and say that the husband should only hold as trustee. The wife's legal estate then is gone for a time, but she holds an equity of which the husband cannot de- prive her. It, then, plainly appears that in the former case the requirement that she sue in her own name is a reasonable one. She has a sep- arate estate rather than a separate use, and should protect it from injury. The action should not be in the name of the husband unless he is required to join with her for her and not his, protection, for he has no interest; nor can it be in the name of a trustee, for there is 343; Wyandotte v. Agan, 37 Kan. 528, 15 Pac. 520; Porter v. Dunn, 131 N. y. 31^, 30 N. E. 122.] 1B6 Alexander v. Hard, 64 N. T. 228. 167 Gibson v. Gibson, 43 Wis. 23. 158 Ctiicago, B. & Q. R. Co. v. Dunn, 52 111. 260. (57) § 38 OF THE ACTION. [I'ART I. none. The New York Code, therefore, which was adopted about the time of the passage of the first of the Married Woman's Acts, prop- erly authorized her to sue alone concerning her separate property, and this authority has been given her in all the code states, though with some restrictions in Indiana and Missouri. On the other hand, when the wife has but the separate use, a mere equity, the title being in another, the permission to sue in her own name is but a barren one. She can, she must, as in equity,^'' bring her action as by a bill in chancery to enforce her equitable rights, but ordinary actions to protect the property from injury will be in the name of the trustee; he is a "trustee of an express trust," and as such should protect the property of his beneficiary. § 38. As to Assignees of Rights of Action arising from Torts.'^* The section of the statute requiring the action to be brought in the name of the real party in interest, closed, as first adopted, with this proviso : "But this section shall not be deemed to authorize the 159 1 Story, Eq. PI. § G3. 100 [At common law, all actions arising ex delicto died with the person by whom or to whom the wrong was done. The rule was "actio personalis mori- tur cum persona." The statutes in many of the states have greatly enlarged this ancient rule, and have increased the class of things in action which sur- vive. The rule is now well established that all causes of action arising from injury to real or personal property survive, and are assignable, and become^ assets in the hands of the executor or administrator. It is the generally ac- cepted doctrine that all causes of action which survive are assignable. This Is not strictly true. Many causes of action are made to survive under the various statutes of the states which are not assignable. [What Causes of Action /Survive? [1st. All claims arising from the breach of a contract, except— [(a) Contracts for personal service. [(b) Breach of promise of marriage. [(c) Contracts and undertakings involving a certain degree of skill; as that, for instance, of a medical practitioner. [(d) Contracts involving personal trust and confidence. [2d. All claims arising from injury, either directly or indirectly, to real or personal property, or claims arising out of fraud, deceit, or false representa- (58) CH. III. J PLAI^TI^■FS liV ACIID.NS j;X DELICTO. § 38 assignment of a thing in action not arising out of contract;"^" which must be understood as guarding against the inference that the section authorizes the assignment of rights of action arising from torts, whicli were not before assignable. The matter is left as be- fore,^"- and the proviso, where retained, seems to be without further legal effect. No chose in action, unless founded upon commercial paper, is so tlons in the acquisition or disposition of the same, whereby rights are lost in relation thereto. [See Slauson v. Schwabacher, 4 Wash. 783, 31 Pac. 329, for a discussion of this question. The mere fact that a tort has resulted in pecuniary injury to the plaintiff, and thus has diminished his estate and his capacity to pay his debts, does not make the cause of action one for an injury to property, which may survive, and be assigned. Milwaukee Mut. Fire Ins. Co. v. Sentinel Co., SI Wis. 207, 51 N. W. 440. An action against a railroad company for its fail- ure to erect and maintain a lawful fence along the sides of its road, whereby stock is permitted to go upon the railroad track, and is killed, can be as- signed. Snyder v. Wabash, St. L. & P. Ry. Co., 86 Mo. 613. A city is liable for the torts of its agents, and such right of action may be assigned. Weire v. Uavenport, 11 Iowa, 49. A statutory cause of action for death by negligence abates by the death of the wrongdoer. Hegerich v. Keddie, 99 N. Y. 258, 1 \. E. 787. The right of action for the conversion of a chattel sui-vives. JIcKeage v. Insurance Co., 81 N. Y. 38. A license to sell intoxicating liquors does not survive to personal representatives, and is therefore not assignable. Neither is a contract for the maintenance of the poor, assignable. Godfrey V. State, 5 Blackf. 151; Burger v. Rice, 3 Ind. 125. It has been held that a contract of guaranty is assignable. Cole v. Bank, 60 Ind. 355.] 161 This proviso is omitted in the Codes of Iowa, Arkansas, California, Colo- rado, Ohio, Kentucky, Nebraska, and the new Code of New York. 162 BUTLER V. NEW YORK & E. R. CO., 22 Bai-b. 110, [per Mason, J.: "On the other hand, when the injury affects the estate rather than the person, when the action is brought for damages to the estate, and not for injm-y to the per- sonal feeUngs, or cliai'acter, the right of action can be bought and sold. Such a right of action, upon the death, bankruptcy, or insolvency of the party In- jured, passes to the executor or assignee as a part of his assets, because it affects his estate, and not his personal rights. * * * Mere personal torts, which die with the person, such as slander, assault and battery, false im- prisonment, seduction, and the like, are not assignable; but torts for taking and converting personal property, or for injury to personal property, and it seems, generally, all such rights of action for a tort as would survive to the personal representatives of the party, may be assigned, so as to pass an inter- est to the assignee which he can assert in his own name in a civil action under the Code, as he formerly might do in the name of the assignor at law."] (.50) § o8 OF THE ACTION. [PAKT I. assignable at common law as to authorize an action in the name of the assignee; and not even in equity is an assignment allowed of a right of action arising from a mere personal wrong — as, libel, slan- der, and injuries to the person. The injury must be to the estate; otherwise, there is nothing to be assigned. A mere personal wrong will entitle the sufferer to redress, but his right to redress is not deemed property, so as to be the subject of sale, or so as to survive. Justice Cowan, in People v. Tioga Common Pleas,^^^ in inquiring a& to the assignability of a demand founded upon a tort, thus applies the test, to wit, whether the I'ight of action would survive the death of the person injured: "For the purposes of any sort of as- signment, legal or equitable, I can nowhere find that the term 'chose in action' has ever been carried beyond a claim due either on con- tract or whereby some special damage has arisen to the estate of the assignor. Executors at law take everything belonging to. their tes- tator which can be considered as [personal] property, or form the subject of dealing in any way. By the equitable construction of a statute they shall take rights of suit for such injuries to the testa- tor's personal property as render it less valuable to the executor. * * * I have not been able to find a case in England which, in respect of personal estate, has given the assignees a greater right than would go to the executor." Mr. Story, also, says: "In general, it may be affirmed that mere personal torts, which die with the party, and do not survive to his personal representatives, are not capable of passing by assignment." ^** Making, then, the assignabil- ity of a right of action to depend upon such a vitality that it will not abate by death, it becomes necessary to inquire what rights of action survive or thus abate, both with reference to the right t& prosecute by an assignee or by the personal representative.^^^ 163 19 Wend. 73. 164 Comegys v. Vasse, 1 Pet. 209. As to tlie general doctrine that rights of action arising from torts that will survive to the representative of decedent are assignable, see Tyson v. McGuineas, 25 Wis. 656; Byxhie v. Wood, 24 N. Y. 607. "The power," says Gould, J., "to assign and to transmit to personal representatives are convertible propositions," quoting Denio, J., in Zabrlskie V. Smith, 13 N. Y. 322. 165 The right to recover property of which one has been defrauded doubtless survives; yet it has been said that the person defrauded cannot sell this right so as to enable the assignee to recover in his own name; that it would be a (60) <^'I- lit- J ri.AINTll-FS IN ACTIONS EX DEUCTO. § 40 § 39. What rights of Action arising from Torts survive under the Statute of 3 Edward III. "At common law, in the case of injuries to personal property, if either party died, in general, no action could be supported, either by or against the personal representatives of the parties, where the ac- tion must have been in form ex delicto, and the plea, not guilty." ^'"' But the statute of 3 Edw. III. c. 8, having always been in force in this country, may so far, and the decisions under it, be treated as part of the common law — they certainly embody the general law upon the subject, when not changed by our own statute — and, ac- cording to them, every kind of injury to personal property by which it has been rendered less beneficial to the estate gives a right of ac- tion which survives to the personal representative,^"' leaving the right which springs from personal injuries to die with the party. § 40. The Statute in the Code States — New York, Missouri, and Arkansas. The substance of the above view, in more definite form, is embod- ied in the New York Revised Statutes, as follows: "Sec. 1. For wrongs done to the property, rights, or interests of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrong-doer; and, after his death, against his executor or administrator, in the same man- sale of a right to file a bill for fraud, which is against public policy. The •question is weU discussed in McMahon v. Allen, 35 N. Y. 403, and the right to purchase such property with its incidents is sustained. Lord Romilly Is quoted as distinguishing between the sale of a bare right to sue in the particu- lar case, and the sale of the property concerning which the suit is brought. The sale or assignment of the property carries with it, as an incident, the right to tile a bill to set aside a previous sale obtained by fraud. In Smith v. Harris, 43 Mo. 557, the court sustained the right of one in possession of land as owner, but by a defective title, to purchase the outstanding title, and take advantage of a fraud theretofore practiced upon him who held it by which he had been induced to convey It to the defendants. 166 1 Chit. PI. 68. 167 1 Chit. PI. GO. (■(;i) § 41 OF THE ACTION, [PAET I. ner and witt like effect in all respects as in actions founded on con- tract. Sec. 2. The preceding section shall not extend to actions for slander, libel, assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or the person of the testator or intestate of any executor or administra- tor." "* These sections are copied into the Missouri act concerning administration of estates.^"' They are varied, however, in Arkan- sas to read as follows: "For wrongs done to the person or prop- erty of another, an action may be maintained against the wrong- doers, and such action may be brought by the person injured, or after his death, by his executor or administrator, against such wrong-doer; or, aiten his death, against his executor or administra- tor, in the same manner and with like effect in all respects as in ac- tions founded on contracts. Nothing in the preceding section shall be so construed as to extend its provisions to actions of slander or libel." "0 § 41. Continued — Kansas, Nebraska, Ohio, Indiana, and Iowa. The Kansas "^ and Nebraska "^ codes of procedure provide as fol- lows: — "In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the per- son, or to real or personal estate, or for any deceit or fraud, shall also survive, and the action may be brought, notwithstanding the death of the person entitled or liable to the same. No action pend- ing in any court shall abate by the death of either or both the par- ties thereto, except an action for libel, slander, malicious prosecu- tion, for a nuisance, or against a justice of the peace for misconduct in offlce, which shall abate for the death of the defendant." These sections were copied from the original Code of Ohio, but in the lat- les 2 Rev. St. N. Y. 447, 448; 3 Rev. St. 1875, p. 732. 160 Wag. St. 87; Rev. St. 1879, §§ 96, 97. See Haight v. Hayt, 19 N. Y. 464, and Smith v. Kennett, 18 Mo. 154. 170 Gantt's Dig. 1874, §§ 4760, 4761; Mansf. Dig. 1884, §§ 5223, 5224 171 Civ. Code, §§ 420, 421. 172 Code Civ. Proc. §§ 454, 455. (62) CH. III.] PLAINTIFFS IN ACTIONS EX DELICTO. § 42 ter state they liave been repealed and the following substituted: "Except as otherwise provided no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto except an action for libel, slander, malicious prosecution, as- sault or assault and battery, for a nuisance, or against a justice of the peace for misconduct in ofQce, which shall abate by the death of either party." "^ The Indiana Code of Procedure ^''* provides that a "cause of action arising out of an injury to the person dies with the person of either party, except in cases in which an action is given for an injury causing the death of any person, and actions for seduction, mali- cious prosecution, and false imprisonment. All other causes of ac- tion survive, and may be brought by or against the deceased party, except actions for promises to marry." The Iowa General Code places all wrongs arising from torts upon the same footing, by pro- viding ^^^ that "all causes of action shall survive, and may be brought, notwithstanding the death of the person entitled or liable to the same." § 42. Continued — Wisconsin, Kentucky, Oregon, and Minnesota. The Wisconsin statute ^'° is as follows: "In addition to the ac- tions which survive at common law, the following shall also survive, that is to say: actions for the recovery of personal property or; the unlawful conversion thereof; actions for assault and battery, or un- lawful imprisonment, or for goods taken or carried away; and ac- tions for damages to real or personal property." In Kentucky it is enacted ^" that "no right of action for personal injury or injury to real or personal estate shall cease or die with the person injuring or the person injured, except actions for assault and battery, slander, criminal conversation, and so much of the action for malicious pros- ecution as is intended to recover for the personal injury." For oth- 173 Kev. St. 1880, § 5144. 1T4 Sections 782, 783, as amended by Rev. St. 1881, §§ 282, 283. 175 Code 1873, § 2525. 176 Rev. St. 1871, p. 1573, c. 135, ■§ 2; Bev. St. 1878, § 4253. 177 Gen. St. 1873, p. 170; Gen. St. 1883, p. 179. (03) ^ 43 OF THE ACTION. [PAET I. er injuries, an action lies the same as upon contract. In Oregon ^" a cause of action arising out of an injury to the person dies witli the person of either party, except when the death is caused by the wrongful act or omission of another, and when the person injured might have sued had he lived, and except certain provisions in rela- tion to actions pending when a party dies; and in Minnesota the law"" is substantially the same. All other rights of action survive to and against the personal representative. § 43. Construction of these Statutes. The language of the several enactments would seem to be so clear as to admit of little or no construction. In New York the provision ■quoted in section 40 has been several times brought to the consid- eration of the Supreme Court and of the Court of Appeals. In Za- briskie v. Smith the action was for deceit, and it appeared that the defendant had falsely and fraudulently represented a certain person to be solvent in consequence of which the plaintiffs had trusted him with goods and lost the debt. Some of the plaintiffs had assigned their interest in the claim, and the court, without appearing to note the language of the statute, held that the claim was not assigna- ble."" The same court, shortly after, in HAIGHT v. HAYT,"^ sus- 178 Gen. Laws 18T2, p. 187. 179 2 St. at Large 1873, p. 913, §§ 24, 25; Gen. St. 1878; p. 825. 180 Zabriskie v. Smith, 13 N. Y. 322. The opinion in this case is hardly sus- tainable, either under the Knglish statute or that of Kew Yort. The learned judge who delivered the opinion (Denio) refers to Chamberlain v. Williamson, 2 Maule & S. 408, aad quotes some of the language of Lord Ellenborough. The latter action was for a.breach of promise of marriage, and was brought by the administrator of the promisee. The justice says: "Executors and admin- istrators are the representatives of the personal property— that is, the debts and goods of the deceased— but not of their wrongs, except where those wrongs operate to the temporal injury of their personal estate," etc. In Za- triskie v. Smith, it is clear that the plaintiffs had suffered a wrong which op- erated to the injury of their personal estate. It was not a personal wrong merely, like an assault or slander, but by means of it the plaintiffs were induced to part with their property. Nor does the judge appear to have noted the language of the second section of the New York statute, which, by naming the causes of action which do not survive, implies that all others do. 181 19 N. Y. 464; [People v. Tioga Common Pleas, 19 Wend. 73; Graves v. (64) ■^'I- III] PLAINTIFFS IN ACTIONS EX DELICTO, § 43 tained an action against the administrator of one wlio had practiced fraud in the sale of a farm ; and in BYXBIE v. WOOD,"^ also sus- tained an action by an assignee of one who, by fraudulent repre- sentations, had been induced to part with money. In each of these cases the court practically annuls the doctrine of Zabriskie v. Smith, notes the exceptions contained in the second section of the statute, and holds that they show the legislative intention to be that all other causes of action founded on a tort should survivc.^^' The ^Missouri statute is the same as that of New York. Aa action was sustained in that state against the administrator of one who had fraudulently induced the plaintiff to marry him, by concealing the fact that he had another wife living; she was allowed to recover for the value of her services as housekeeper, but not for the personal in- jury.^** In another case the administrator of a father was permit- ted to recover damages arising from negligently killing a minor son, but only so far as they had accrued during the father's life, for the loss of the son's services.^*^ The Kentucky statute quoted in section 42 ia substantially the same as that of 1812, and it is held in that state, in an action brought by persons held as slaves against certain heirs who had destroyed the will of their ancestor, by which they had been emancipated, that the cause of action survived against the Spier, 58 Barb. 349. Right of action against a city arising out of a tort may be iissigned. Weire v. Davenport, 11 Iowa, 49; Tyson v. McGuineas, 25 Wis. 65C; Hardin v. Helton, 50 Ind. 319.] 182 24 N. Y. 607. 183 A right of action springing from a personal injury caused by the negli- gence of the servants of a railroad company is held not to be assignable. Hodgman v. Western R. Corp., 7 How. Pr. 492. 184 Higgins V. Breen, 9 Mo. 497. The coui-t held that defendant's Intestate, if living, would not be permitted to set up the fi'aud as a defense to show that there was no implied promise to pay for the work and labor. 185 James v. Christy, 18 Mo. 102. Scott, J., in this case says: "The father was entirely deprived of all property in his son's services. The recovery will be limited to the value of the services. The administrator will not be entitled to any remuneration for the loss of the society or comforts afforded by a child to its parent. Damages of this character died with the parent, and his estate is entitled to compensation only so far as it has been lessened by the loss of the son's sei-vices. The father was no longer entitled to these services .than during his life." BLISS CODE PL. 5 (65) § 44 OF THE ACTION. [PAKT I. representatives of the deceased wrong-doers;^*' also, more recently, that a false representation to a military ofiQcer, which caused the arrest of the plaintiff, furnished a cause of action that did not abate by the death of the plaintiff.^*^ In Kansas a demand against the defendant for tortiously obtaining illegal fees had been assigned to the plaintiff, and he was permitted to sue in his own name, for the reason that the right of action would not die with the party, inas- much as the fraud affected the estate of the person wronged.^*' § 44. When does a Claim for a personal Injury become a Debt? A judgment, upon whatever founded, is everywhere regarded as a debt which does not abate by death, and which is transferable like an ordinary contract. But the character of the demand is not changed until judgment, and an action based upon a cause of action which would not survive will abate by death during any step of the proceeding, and the demand cannot be assigned after verdict mere- ly."" By the English practice, motions for a new trial or in arrest are disposed of before the rendition of judgment, and such is the logic of our own practice, for it is the object of such motions to prevent the entry of judgment. But in many of the states the prac- tice is to enter judgment upon the verdict at once, and the effect of these motions is to suspend the judgment until they are disposed of. In such states the courts are disposed to treat the judgment as a subsisting debt, notwithstanding the motion; and in others, if the judgment has been prevented by a motion not disposed of at the 186 White's Heirs v. Turner, 1 B. Mon. 130. 187 Huggins V. Toler, 1 Bush, 192. 188 Steward v. Balderston, 10 Kan. 131. 189 LAWRENCE v. MARTIN, 22 Cal. 173. A report of referees upon a submission in an action for seduction has the force of a verdict; but the de- mand does not become a debt until judgment, and hence Is not discharged by bankruptcy when the petition was made after the report, but before the judgment. Crouch v. Gridley, 6 Hill, 250. To the same effect as to a verdict for breach of promise of marriage is In re Charles, 14 East, 197; and, as to a verdict for trespass, is Kellogg v. Schuyler, 2 Denio, 73; [HUNT v. CON- RAD, 47 Minn. 557, 50 N. W. 614.] (60) CH. III.] PLAINTIFFS IN ACTIONS EX DELICTO. § 44 term, and in the meantime a party dies, so that the action would abate, judgment, if the motion be overruled, will be entered nunc pro tunc as of the term when the verdict is obtained.^"" In some states, as in Wisconsin,^"^ the statute provides that, after verdict, no action shall abate by death. 190 In Dial v. Holter, 6 Oliio St. 228, a verdict had been obtained, upon which judgment was entered. A motion for a new trial was filed, and the judgment was reversed upon error, but for irregnilarities subsequent to, and which did not affect, the verdict. Three years after the verdict the case came up for final judgment; but in the meantime the defendant had died, and the cause of action was such as to abate by death. But the court would not let the plaintiff suffer by the delay, and entered judgment nunc pro tunc. Held, in Collins v. Prentice, 15 Conn. 423, that if the defendant dies pending a motion for a new trial, the court, upon overruling it, may enter judgment nunc pro tunc; and the same view is talien in Ryghtmyer v. Durham, 12 Wend. 245. In Turner's Adm'r v. Boolier, 2 Dana, 334, a judgment had been taken by default for assault and battery, and damages assessed. Held, that the judgment was not vacated by a motion for a new trial, and that the action would not abate by the death of the plaintiff pending the motion. 191 Rev. St. 1878, § 2809. (67) § 45 OF THE ACJION. [PAKT .1., CHAPTER IV. OF PARTIES TO ACTIONS, CONTINUED. 2. Parties Plaintiff in Actions founded on Contract. Section 45. In Actions by Assignees, tlie equitable Rule adopted. 46. Tlie Exceptions. 47. What Contracts are assignable. 48. Contracts not assignable. 49. Indorsements and Assignments by Executors and Administrators. 50. The Mode of Assignment. 51. Indorsements and Assignments without actual Sale. 52. Who may be Plaintiffs other than Parties in Interest 53. 1. Actions by Executors and Administrators. 54. 2. Actions by Trustees of an express Tmst. 55. 3. By Persons with whom, or in whose Name, a Contract Is made lor the Benefit of another. 56. 3. Continued — An agent merely, not authorized to sue. 57. 3. Continued— Cases when the Representative may sue in his own Name. 58. 3. Continued— May the Beneficiary also sue? 59. 3. Continue<3 — No change made by this limitation. 59a. As to conti-acts in which an agent has an interest. 60. 4. By Persons expressly authorized by Statute. 61. Joinder of Plaintiffs— The general Rule. 62. Joinder of Plaintiffs in Common-law Proceedings. 63. Whether the Right is joint or several. 64. Assignment of joint Rights. 65. Parties in partial Assignments. 65a. Same— In a partial assignment by a joint obligee. 65b. Continued — In case of insolvency of partner. 65c. Ordinary assignments by co-obligees. 66. How should joint Obligees assign. 67. As to Joinder by Tenants in Common in actions for Rent. 68. Continued. 69. Continued— Parties under the Code. 70. Joinder in Actions by Distributees and Legatees. 71. Parties in Actions concerning the separate Property of married Women., . <6S) CH. IV.] PLAINTIFFS IN ACTIONS EX CONTRACTU. § 45 § 45. In Actions by Assignees, the equitable Rule adopted. As between the original parties to a contract, when acting in their own right, no difQculty will arise as to who should be the plain- tiff, nor is the rule changed by the Code. But in actions formerly called legal, founded upon contract where the contract has been assigned, the rule adopted by the Code is the one that prevails and has always prevailed in equity. Except as to negotiable paper, it is necessary, in common-law pleadings, to prosecute in the name of the original obligee or payee, and, "in general, the action upon a contract, whether express or im- plied, or whether by parol, or under seal, or of record, must be brought in the name of the party in whom the legal interest in such contract was vested." ^ The one holding such legal interest in a con- tract is the person to whom the promise was made, and from whom the consideration passed, and he must bring the action.- In nego- tiable instruments the indorsee if payable to order, or the holder merely if payable to bearer, has by the tenns of the instrument, the legal interest, and can bring the action in his own name; but at common-law in respect to other agreements, if a third person be- comes an owner by assignment, there is no privity between him and the promisor, and if he would enforce the contract he must do it in the name of the original promisee; the assignee is called the equita- ble owner, and if named in the record, he is described as the person for whose use the action is brought. Under the new system the rule is adopted which prevails in equi- ty, and which requires, with certain exceptions named [below], that actions be prosecuted in the name of the real party in interest^ In 1 1 Chit. PI. 2. 2 Hall. v. Huntoon, 17 Vt. 244. 3 [Tills raises the question, who is the "real party in interest" ? The "real party in interest" is the party who is to be benefited or injured by the judg- ment in the case. It will be observed that the rule provides the action must be prosecuted in the name of the real party in interest, and of course if the de- fense can Show that the plaintiff or plaintiffs are not the real parties in in- terest the action must fail. Eaton v. Alger, 57 Barb. 179, 189; Hereth v. Smith, 33 Ind. 514; Cottle v. Cole, 20 Iowa, 481; Minnesota Thresher JIanuf'g Co. v. Heipler, 49 Minn. 395, 52 N. W. 33; Young v. Hudson, 99 Mo. 102, 12 S. W. (69) § 46 OF THE ACTION. [PART I. general, then, if a contract, or a right of action arising either from contract or from a tort which is capable of assignment, be assigned or transferred, the action, whatever its nature, must be brought in the name of the assignee or transferee as the real party in interest. § 46. Ih3 Exceptions. But if the requirement were imperative that those must sue, and only those, who have the real, the beneficial, interest in the contract to be enforced, or in the relief to be sought, great inconvenience would often arise, and representative and express trusts might be practically destroyed. A factor doing business in his own name, in a single transaction transfers property in the sale of which many of his correspondents may be beneficially interested, and possesses, also, himself, an interest to the extent of his commissions, and as guaranteeing payment. He might find it very inconvenient to himself, and make it oppressive to a defendant, if compelled to split up his cause of action and bring separate actions in the name of each of his correspondents according to their several interests in the subject of the action. So, an administrator has less interest in collecting the assets of the deceased than the creditor or the dis- tributee, yet he, of necessity, must bring the action; and in case of many express trusts, where property has been placed in the hands of one to be held and used for the benefit of another, if the benefici- ary, who is the real party in interest, could bring ordinary suits in 632; McPherson v. Weston, 64 Oal. 275, 30 Pac. 842; Swift v. Ellsworth, 10 Ind. 205; Bartholomew Co. Com'rs v. Jameson, 86 Ind. 154. In Baton v. Alger, supra, the judge says: "The law of this state no longer permits actions to be prosecuted in the name of nominal plaintiffs. The moment that fact appears the action is ended, no matter what the character of the instrument on which it Is founded, whether negotiable or not, whether the defendant has or has not any defense to the indebtedness." See White v. Miners' Nat. Bank, 102 U. S. 058, where it is held that an indorsee "for collection" only cannot sue in his own name. Contra, Hardin v. Helton, 50 Ind. 319. See following cases as to what interest wiU support an action: Emmitt v. Brophy, 42 Ohio St. 82; Rice v. Savery, 22 Iowa, 470; Blanchard v. Page, 8 Gray, 281; Murray V. Warner, 55 N. H. 548; Adams v. O'Connor, 100 Mass. 515; Stafford v. Wal- ter, 67 111. 84; Phoenix Ins. Co. v. Mitchell, Id. 43; Mizner v. Frazier, 40 Mich. 592.] (TO) CH. IV.] PLAINTIFFS IN ACTIONS EX CONTIiACTU. § 47 his own name, he might, against the will of the trustee and contrary to the objects of the trust, be able to control the property. Hence, trustees of an express trust, persons in whose name a con- tract is made for the benefit of others, executors and administrators, and those who may be authorized by statute, may still sue in their own name, and without joining those for whose benefit the suits are brought; * the language of the different codes covering these excep- tions is not precisely the same, but the same in effect. In the preceding chapter I have spoken of plaintiffs in actions for the recovery of real property held adversely,^ which, in some states, is another exception to the general rule. § 47. What Contracts are Assignable.' The requirement that actions shall be brought in the name of the real party in interest changes the common-law rule of pleading, chiefly in regard to actions for breach of those contracts which be- 4 Code Civ. Proc. N. Y. § 449; Rev. St. Ohio, §§ 4903-4995; Rev. St. Mo. §§ 1090, 1991; Code Civ. Proc. Ind. 251, 2o2; Code Iowa, 3748, 3749; Code Civ. Proc. Cal. §§ 367-369; Gen. St. Jlinn. e. 66, §§ 26, 28; Gen. St. Kan. pars. 4103- 4105; Consol. St. Neb. §■§ 4564^507; Gen. St. Nev. §§ 3026-3028; Rev. St. Wis. 2605-2607; Code Or. §§ 103-129; Code Civ. Proc. S. C. §§ 132-134; Comp. Laws .S. D. §§ 4870-4872; Code Civ. Proc. Colo. §§ 3-5; Mansf. Dig. Arli. §§ 4933- 4036; Gen. St Conn. §§ 883, 888; Rev. St. Idaho, §§ 4090-i092; Civ. Code Ky. §§ 18-21; Code N. C. §§ 177-179; Comp. Laws N. D. §§ 4870-4872; St. Okl. §§ 4305, 4306; Code Wash. § 134; Rev. St. Ariz. § 680; Code Civ Proc Wyo. §§ 2382-2384; Comp. Laws Utah, §§ 3169-3171; Code Civ. Proc. Mont 4r-6. [These foregoing statutory provisions cover both the general rule as to parties plaintiff as well as the exceptions to the rule.] 5 Ante, § 23a. 8 [Ante, § 33. Hoyt v. Thompson, 5 N. Y. 320, per Selden, J. : "All choses in action, embracing demands which are considered as matters of property or estate, are now assignable either at law or in equity. Nothing is excluded except mere personal torts which die with the party. A claim, therefore, for property fraudulently or tortiously taken or received, or wrongfully with- held, and even for an injury to real or personal property, may be assigned. In the following states an action for assault and battery survives by express statutory provision: Tennessee, Iowa, Arkansas, and Wisconsin." See, also, the following cases: Hegerich v. Keddio, 99 N. Y. 258, 1 N. B. 787; Chap- man V. Plummer, 36 Wis. 262; Blair v. Hamilton, 48 Ind. 32; Board of Oom'rs V. Jameson, 86 Ind. 154; Allen v. Miller, 11 Ohio St 374 Prior to the adop- (71) § 47 OP THE ACTION. [PART I. fore were assignable in equity, but to whicli the assignee acquired no technical, legal title. Choses in action, at common law, are not assignable; they are regarded as rights merely to go to law, and the policy of the old law forbade the sale of a right to sue. After they came to be treated as property, and the right of transfer came to be recognized and the rights of the assignee to be protected, the form as usual, survived when its reason had passed away, and at common-law, the owner is still obliged to sue, as though no assign- ment had been made. The Code makes no change in the right itself: it abolishes, so far as it can be done, the distinctions between rights at law and in eq- uity, treats an equitable owner as the real owner, and an equitable assignment as an actual assignment. But it goes no further, and it makes nothing transferable that wasi not so before; so, we are gov- erned by equity rules as to what things in action are assignable, whether sounding in contract or in tort.'' The general rule is that all contracts, and all rights of action aris- ing from their breach, are capable of sale and assignment. A few exceptions will be noted in the next section, but the commercial spirit has so triumphed over old ideas, that all things in action as well as in possession, all rights not personal merely, all that can be treated as part of one's estate, that are a subject of valuation, that are property, can be transferred like other property; and, as we have heretoforfe seen in regard to torts,^ survivorship is the test of assignability.' tion of the Code, an assignee of part of a demand could not sue at law; but now lie may, by making the assignor a party, and, if he should refuse to be- come a party plaintiff, he may be made a party defendant. Grain v. Aldrich, 38 Cal. 514; Lapping v. Duffy, 47 Ind. 51.] ^ Harris, J., in HODGMAN v. WESTERN R. CO., 7 How. Pr. 492, says that the only change made by the code "is to transfer, with the beneficial interest, the right of action also, in those cases where, before, the court would recognize and protect the rights of the assignee. No new right of action is created; no authority is given to assign a right of action not before assignable." s Ante, § 38. » The authorities cited in regard to the application of this test to rights of action arising from torts apply equally to contracts. See cases cited, ante, §§ 38, 43. (72) CH. IV.J PLAINTIFFS IN ACTIONS EX CONTRACTU. § 48' § 48. Contracts not Assignable. A class of contracts of a mere personal nature cannot be separated from the person with whom they are made, they usually involve personal trust or confidence, can have no existence except as between the original parties, and hence they can neither survive to or against the personal representative of a deceased party, nor are they capable of sale or assignment. A contract of apprenticeship is one involving a personal trust, and cannot be transferred.^" So, a contract of marriage is of such a personal nature that a right of action for its breach will not sur- vive the death of either party,^^ and is, therefore, not assignable. 10 In HALL v. GAKDNKR, 1 Mass. 172, the plaintifCs charged that they were entitled by an indenture to the services of an Indian boy; that they conti-acted with the defendants to take him into their service for a voyage at sea, etc., and to pay them a portion of the profits realized from the voyage; that defend- ants did not enter upon the adventure agi-eed upon, etc., by means of which the plaintiffs lost their anticipated share of the profits and services of the boy. It appeared in evidence that the boy had been bound as an apprentice to the father of the plaintiffs until his majority, and that he had assigned the in- denture to the plaintiffs. Held, that the assignment was a nullity; that the services could not be transferred. Also, that had tlie indenture been made to the plaintiffs, they would not have had a right to send the apprentice "to the end of the globe in their service." In DAVIS v. COBURN, 8 Mass. 299, the ap- prentice had been bound to the plaintiff by his father, and the plaintiff had transfen-ed a portion of the term to the defendant for $150. The apprentice absconded, and the action was to- recover the price agreed to be paid. Held, that the contract of apprenticeship was a personal trust, and that its assign- ment did not confer any authority or right to the assignee, especially as it was made in New Hampshire, and the apprentice was to be talien to Massachu- setts. See Cochran's Ex'rs v. Davis, u Litt. (Ky.) 118, and Ellen v. Topp,'& Exch. 424. 11 Chamberlain v. Williamson, 2 Maule & S. -tOS; Lattimore v. Simmons, 13 Serg. & R. 183; Stebbins v. Palmer, 1 Picli. 71; Smith v. Sherman, 4 Cush. 408. In Stebbins v. Palmer, the opinion, after referring to rights of action which do and do not survive that arise from torts, says: "The distinction seems to be between causes of action which affect the estate and those which affect the person only; the former survive for or against the executor, and the lat- ter die with the person. According to this distinction, an action for the breach of a promise of man-iage would not survive, for it is a contract merely per- sonal—at least, it does not necessarily affect property. The principal ground (73) § 48 OF THE ACTION. [pART I. The principle is thus stated by Chitty: ^^ "No action lies against executors upon a covenant to be performed by the testator in person, and which, consequently, the executor cannot perform, or for the breach of a personal contract, when the breach can occasion no in- jury to the personal estate of the testator or intestate, and when, therefore, the remedy dies with the person;" and Chitty on C!on- for damage is disappointed hope; the injury complained of is violated faith, more resemljliug in substance deceit and fraud, than a mere common breach of promise." In Smith v. Sherman the court goes a little further, and at- tempts to define the special damage for Avhich the cause of action would sur- vive. Says the court, per Shaw, .!.: "These authorities (those above cited) speak of cases where no special damage is alleged. The precise extent of this qualification is not explained; the most natural supposition, is that it must be some damage of such a character that it might be given in evidence to aggravate the damages in an action, or be itself the substantive cause of action— as, in case of trespass quare clausum, and carrying away plaintiff's goods, the carrying away the goods may be a ground of special damage, or be the cause of a separate action. In this view all the damage directly incidental to the complaint, the breach of promise, if the principal action falls must fall with it. In looliing at the specification of claims set forth by the attorney of the applicant, we can perceive no one which would be a substantive cause of action. The time lost and the expenses incurred in preparation for the mar- riage might have been properly specified in making up the aggregate of dam- age had the writ been prosecuted and the case proved, but they would have been strictly incidental. Therefore, if the principal action for breach of prom- ise of marriage could not be maintained, these damages could not be recovered in any form, and a separate action for them would not lie." CHAMBERLAIN v. WILLIAMSON, "2 Maule & S. 408, was also an action for a breach of a promise of marriage, and in liolding that the right of action did not survive, the court, per Ellenborough, J., says: "If this action be maintainable, then every action founded on an implied promise to a testator, when the damage subsists in the previous personal suffering of the testator, would be also maintainable by the executor or administrator. All injuries affecting the life and health of the deceased, all such as arise out of the unskillfulness of medical practitioners, the imprisonment of a party brought on by the negligence of an attorney- all these would be breaches of the implied promise by the persons employed to exhibit a proper portion of skill and attention. We are not aware, how- ever, of any attempt of the executor or administrator to maintain an action in any such case. When the damage to the personal estate can be stated on the record, tliat involves a different question." [An installment of alimony deposited with the clerk is not subject to assignment by her before it is due. Kempster v. Evans, 81 Wis. 247, 51 N. W. 327; In re Robinson, 27 Ch. Div. 160.] (74) ^ '• ^V.] PI.AINTIFKS IN ACTIONS EX CONTRACTU. § 49 tracts " says that both specialties and simple contracts bind the executors, unless it be "a personal engagement to be performed by the testator only, and requiring his personal skill and taste." " The code does not change the law in this regard.^® But all contracts for work are not thus personal, and when an executory agreement for labor can as well be performed by an assignee, it is assignable." § 49. As to Indorsements and Assignments by Executors and Administrators. It is thus seen that, as to things in action which can be assigned, the action must be brought in the name of the assignee, and it is as- sumed that persons capable of contracting are also capable of in- <3orsing commercial paper, and of assigning choses in action. But doubts sometimes arise whether an indorsee or assignee has acquired such a title as to authorize an action in his own name; and, first, when the transfer has been made by an executor or administrator. As to contracts made with the administrator, although dealing with the assets, no question can arise; they are his contracts, and not those of the deceased, and he may dispose of them as he pleases. Undertakings and other rights in action belonging to the deceased at his death, he is not bound to prosecute, but may, if acting in good « 12 1 Chit. PI. 51. 13 (7th Am. Ed.) p. 98. 1* In SHULTZ v. JOHNSON, 5 B. Mon. 497, the action was based upon an agreement made with the plaintiff's intestate, by which the defendants agreed to purchase six successive crops of hemp of the intestate's own raising, embra- •cing all the hemp he could raise upon certain land. The contract was held to be a personal one, and, upon his death, his administrator was defeated in attempt to compel the defendants to take the hemp thereafter raised. The court treated the agreement as personal, because of the phrases "of his own raising," and "he can raise." In Coleman v. Woolley's Ex'r, 10 B. Mon. 320, Coleman had employed Woolley to defend her son, charged with murder. Before the trial Woolley had been appointed judge, and the defense was conducted by his part- ner. Held, that the contract, though personal, had been complied with, and that Coleman was liable for the fee. 15 Wade V. Kalbfleisch, 58 N. Y. 282. 16 DEVLIN V. MAYOR, etc., 63 N. Y. 8. As to the right of an assignee of a contract for street cleaning. In this case the city had i-ecognized the assign- ment. (75) § 50 OF THE ACTION. [PART I. faith, assign and transfer them to third persons; " and where there are several executors or administrators, the indorsement may be made by one — their interest is joint.^* This transfer must, how- ever, be in good faith, in the interest of the estate, and if made in payment of a private debt of the executor or administrator, it is a devastavit, and passes no title to one who takes with notice.^' In some of the states it is held that a foreign executor or adminis- trator cannot so pass title to a chose in action belonging to the de- ceased at his death as to enable the indorsee or assignee to sue in his own name; that, inasmuch as the foreign assignor cannot him- self sue without taking out letters in the state where the action is brought, and where he would be bound to make the proper distribu- tion, he cannot so transfer the claim as to avoid that duty.^" In, other states, however, such assignments are recognized as passing title to the assignee, although the assignor has only taken out letters in a foreign state.^^ In most of the cases cited in this section the transfer was that of negotiable paper; but where, as under the Code, the assignee of other choses in action may sue in his own name, they are equally transferable, and the same rule must hold; the peculiar rights and liabilities of parties to commercial paper under the law-merchant cannot affect this question. § 50. The Mode of Assignment. By the law-merchant, the legal title to commercial paper, payable to order, can pass only by indorsement, and the purchaser who would sue as holder must show his right as indorsee. But one may be- 17 Eawlinson v. Stone, 3 Wils. 1; Watkins v. Maule, 2 Jac. & W. 237; Make- peace V. Moore, 5 Oilman, 474; Owen v. Moody, 29 Miss. 82; Rand v. Hub- bard, 4 Mete. (Mass.) 252; Petei-sen v. Chemical Bank, 32 N. Y. 47. 18 Mosely v. Graydon, 4 Strob. 7; Wheeler v. Wheeler, 9 Cow. 34; Dwight v. Newell, 15 111. 333. 19 Makepeace v. Moore, 5 Gilman, 474; Miller v. Helm, 2 Smedes & M. 687;; Scott V. Searles, 7 Smedes & BI. 498; Miller v. Williamson, 5 Md. 219. 20 McCarty v. Hall, 13 Mo. 480; Stearns v. Burnham, 5 Me. 261; Thompson V. Wilson, 2 N. H. 291. 21 Harper v. Butler, 2 Pet. 239; Riddick v. Moore, 05 N. C. 382; Rand y^ Hubbard, 4 Mete. (Mass.) 252; Petersen v. Chemical Bank, 32 N. Y. 47. (76) ■CH. IV. J PLAINTIFFS IN ACTIONS EX CONTRACTU. § 51 come the equitable owner without indorsement, and, as being the real party in interest, is required to sue in his own name. No par- ticular mode of transfer is required; a written indorsement or asi signment upon the bacis of the paper evidencing the debt is to be desired as matter of evidence, but so far as concerns the right of a holder to become plaintiif, the transfer may be shown by other evi- dence. Thus, it may be made upon a separate paper," even a verbal sale is sufficient.-^ § 51. Indorsements and Assignments without actual Sale. Most of the courts have held that where negotiable paper has been indorsed, or other choses in action have been assigned, it does not concern the defendant for what purpose the transfer has been made, and, in an action by the transferee, he cannot, unless he has some de- fense or holds some claim against the real owner, object that the suit is not in the name of the real party in interest. It is sufficient for him that the holder has a right to receive the money — that he will be protected from any other demand founded on the same claim. Thus, a judgment debtor, when sued by an assignee of the judg- ment, has no interest in impeaching the assignment, and it is no de- fense that the judgment-creditor is stiU beneiicially interested.^* In Missouri the indorsee of a negotiable note for collection may stUl sue in his own name.^° In New York the rule is settled in the Court of Appeals, and contrary to previous holdings in the Supreme Court, 22 Thornton v. Crowther, 24 Mo. 164; McClain v. Weidemeyer, 25 Mo. 364. . 23 Andi-ews v. McDaniel, 08 N. C. oS.j; AVeinwick v. Bender, 33 Mo. SO; Wil- liams v. Norton, 3 Kan. 2U5; Carpenter v. Miles, 17 B. Mon. 598; Pearson v. Cummings, 28 Iowa, 344; Wliite v. Plielps, 14 Minn. 27 (Gil. 21); Hancocls v. Ritchie, 11 Ind. 48. The Indiana Code (section 270) requires that where an action is brought by the assignee of a claim founded on contract, and not assigned by indorsement in writing, the assignor shall be made a party. 2* Cottle V. Cole, 20 Iowa, 481. In this case Dillon, J., spealjs of the rule as established by the com'se of decision in Iowa, that one holding the legal title to a note or other instrument may sue upon it, though he be agent or trustee, and liable to account for the proceeds, although the case is opened to any de- fense which may exist against the person beneficially interested. 25 Webb V. Morgan, 14 Mo. 428; Beatie v. Lett, 28 Mo. 596. In Beatie v. Lett the com-t speaks of the indorsee as a trustee of an express trust. (77) § 51 OF THE ACTION. [PART I. that the regular indorsee of negotiable paper may recover in his own name, notwithstanding he is a mere agent of the payee, and is bound to account to him for the proceeds.^" So far as concerns the right of the transferee to sue in his own name, there is no difference, in principle, between paper negotiable by the law-merchant and ordi- nary choses in action assignable in equity. As to who is the proper plaintiff, the Code makes no distinction, and the New York Court of Appeals recognizes the right of the assignee of such demands to sue in his own name, although not the absolute owner — as, where the assignor retains an interest in the fund,^' even if the assignee is accountable for all he may coUect.^^ The Supreme Court of Minnesota takes the same view and suggests the following test: 26 EATON V. ALGER, 47 N. Y. 345. "As to anything beyond the bona fides of the holder, the defendant who owes the debt has no interest." City Bank of New Haven v. Perkins, 29 N. Y. 554. See, also, remai'ks of Davies, C. J., in Brown v. Penfield, 36 N. Y. 473; and see Williams v. Brown, *41 N. Y. 480, and Hays v. Hathom, 74 N. Y. 486. In Hays v. Hathorn it had been held in the trial court that the defendant could not plead and show that the paper sued on was not the property of plaintiff but belonged to some one else. In holding this ruling to be error, the Court of Appeals reviewed the New York cases and thus per Hand, J., stated the doctrine: "From this glance at the cases, it appears that it is ordinarily no defense to the party sued upon com- mercial paper, to show that the transfer under which the plaintiff holds it is without consideration or subject to equities between him and his assignor, or colorable and merely for the purpose of collection, or to secure a debt con- tracted by an agent without suthcient authority. It is sufficient to make the plaintiff the real party in interest if he has th e legal title, either by written transfer or delivery, whatever may be the equities between him and his as- signor. But to be entitled to sue he must now have th e right of possession and ordinaril y be the legal owner. Such ownership may be as equitable trus- tee, it may have been acquired without adequate consideration, but must be sufficient to protect the defendant upon a recovery against him, from a sub- sequent action by the assignor." 27 Durgin v. Ireland, 14 N. Y. 322. 28 Meeker v. Claghorn, 44 N. Y. 349; Allen v. Brown, Id. 229. In Allen v. Brown certain co-owners had assigned to the plaintiff their interest in the de- mand without consideration. The assignee was held to be the real party in interest, notwithstanding he might be acting in the interest of said co-owners, and be liable to them for their share of the amount collected. In Meeker v. Cleghorn the doctrine is spoken of as settled in New York that an assignment in writing, absolute in its terms, makes the assignee the real party in interest, notwithstanding he may be acting in the interest of the assignors. (78) CH. IV. J PLAINTIFFS IN ACTIONS EX CONTRACTU. § 51 "They [the defendants] can only raise the objection of a defect of parties to the suit where it appears that some other person or party than the plaintiff has such a legal interest in the note that a recovery by the plaintiff would not preclude its being enforced, and they be thereby subjected to the risk of another suit for the same subject- matter." ^° In California the ruling is that an assignment, absolute and unconditional in its terms, gives the assignee a right to recover in his own name, although the trausfer was only as collateral se- curity,''" and so does a delivery of paper indorsed in blank, although another person has an interest in it.^^ In Kansas a transferee without indorsement but with verbal au thority to receive the money is "the real party in interest; ^^ but unless negotiable paper be indorsed, he gets but an equitable title, and the action is subject to equitable defenses or claims good against the payee." '^ In Indiana the defendant was allowed to impeach the plaintiff's title by showing that the payee of the note sued on had assigned it 2» Oastner v. Austin, 2 Minn. 44 (Gil. 32). In Pease v. Rush, 2 Minn. 107 (Gil. 89), some of tlie plaintiffs liad purcliased the interest of certain partners In a firm, to whose order the notes in suit had been made payable, and the new firm brought the action in its own name, without indorsement by the old firm. Held, that they were the proper parties; that the title of a note pay- able to order would pass by delivery merely, although an indorsement would be necessai-y to protect the holder from defenses good against the payee. In White v. Phelps, 14 Minn. 27 (Gil. 21), the note in suit had, without indorse- ment, been pledged to the plaintiff as collateral security. Held, that the pledgee was not bound to sell the instrument, but might collect it in his own name. 30 WETMORE v. CITY OF SAN FRANCISCO, 44 Cal. 294. The controversy in this ease arose out of an attempt by the plaintiff below to prosecute for an al- leged balance upon certain demands which had been assigned as collateral, and upon which a judgment had been obtained by the assignee. Held, that the as- signee had a right to sue tor the whole demand, and that the assignor is estopped from bringing an action upon any of those which were covered by the terms of the assignment, upon the claim that only a portion were assigned, and, in fact, put in judgment. See, also, Gradwohl v. Harris, 29 Cal. 150. 31 Curtis V. Sprague, 51 Cal. 239. 32 Williams v. Norton, 3 Kan. 295; [Stuckey v. Fritsche, 77 Wis. 329, 46 N. W. 59.] 33 McCrum v. Corby, 11 Kan. 404. (79) '§ 51 OF THE ACTION. [PART I. to the plaintiff to secure an indebtedness which had been paid;'* and he may also show that the plaintiff has parted with his interest in the subject-matter of the action,'" but an indorsement for collec- tion, or one made without consideration, passes a good title and the indorsee may sue in his own name.'" The Kentucky Code " requires that "if the assignment be not au- thorized by statute, the assignee must be a party as plaintiff or de- fendant," and it appearing by the pleadings that the plaintiff was suing for the use of another, the refusal to make the beneficiary a party was held to be error.'^ 3* Swift V. Ellsworth, 10 Ind. 205. 35 In GILLESPIE v. FT. WAYNE & S. R. CO., 12 Ind. 398, the plaintiff below had sued upon a stock note, and the answer of defendant that the note had been delivered to one Jones, who was authorized to collect it and apply the pro- ceeds upon a debt due him, was held to be good. In Hancock v. Ritchie, 11 Ind. 48, it was held that the action should be brought in the name of one who had bought a promissory note, although it had not been indorsed to him. In showing by answer that the plaintiff is not the real party in interest, the Su- preme Court of Indiana enforces the rule that a pleading must state facts, and uot inferences, especially in dilatory pleadings. In Hereth v. Smith, 33 Ind. 514, the plaintiff had sued as indorsee of the note, and the defendant an- swered that he had no interest in it, but that it belonged to one . This answer was held to be insufficient, Worden, J., remarking: "The defendants (by not denying it) admit the making of the note, and that it was duly in- dorsed to the plaintiff by the payee thereof, as alleged in the complaint; but still they say that she does uot own it, but, on the contrary, it belongs to some one else, and she is not the real party in interest. But if the note was thus indorsed to the plaintiff, why does she not own it? why is she not the real party in interest V and how did it become the property of some one else? The pleading fails to answer any of these queries, or to state any facts from which the assumptions are drawn. 2SJo new facts are stated that avoid the legal effect of the facts thus admitted. That such pleading is bad needs the citation of no authorities, but for convenience of reference we cite the fol- lowing: Garrison v. Clark, 11 Ind. 369; Elder v. Smith, 16 Ind. 466; Raymond v. Pritchard, 24 Ind. 318; Lewis v. Sheaman, 28 Ind. 427." 30 Hardin v. Helton, 50 Ind. 319. 37 Bullitt's, § 19. 38 Cai-peuter v. Jliles, 17 B. Mon. 598: "The payee was a proper party, but Wilson, the beneficiai'y, was a necessary party, and the suit could not have rightfully proceeded without his being a co-plaintiff." The principle that the holder, whether the absolute owner or not, has sufficient title to maintain an ■action, seems, however, tn be recognized in those decisions which authorize (80) CH. IV. J PLAINTIFFS IN ACTIONS EX CONTRACTU. § 52 § 52. Who may be Plaintiffs other than Parties in Interest. The exceptions to the requirement that the action shall be brought in the name of the real party in interest are the same in all the code states, although the language varies. The New York statute, which is followed in most of these states, uses the following language: "An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the pei"son for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another.'' ^' The original act in New York embraced only the first paragraph, and the other was afterwards added to remove a doubt whether the class of persons named in it was included in the terms "trustees of an express trust." The doubt might well be entertained, because it is not true that a person with whom, or in whose name, a contract is made for the b ne- flt of another is necessarily a trustee of an express trust;*" he may be such trustee, and may not. The language of the Ohio Code, and that of several other states, is more appropriate. "An executor, an administrator, trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action with- out joining with him the person for whose benefit it is prosecuted;"*^ and the following special, but hardly necessary, clause is added: "OflScers may sue and be sued in such name as is authorized by law, and official bonds may be sued upon in the same way."*^ But the assignee of a chose in action to use it] as a set-off when he holds it for that purpose only, and is to account to the assignor for only thei amount he may recover, by such set-off. See Otwell v. Cook, 9 B. Mon. 358; Graham v. Tilford, 1 Mete. (Ky.) 112. 39 See references to the various codes in section 4G. 40 [An express trust is defined to be a trust created by the direct and posi- tive acts of the parties, by some writing or deed or will. Considerant v. Brisbane, 22 IN'. Y. 389; Weaver v. Wabash & E. Canal, 28 Ind. 112; Kobbins V. Deverill, 20 Wis. 150; Holmes v. Boyd, 90 Ind. 332.] 41 [Lord V. Lord, 68 Hun, 537, 22 N. Y. Supp. 1004.] 42 The phraseology adopted in the states that do not follow the language of BLISS CODE PL. 6 (.81) § 53 OF THE ACTION. [PART I. whichever phraseology is used, the statute plainly includes four classes of persons other than jjarties in interest who may prosecute an action in their own name: first, executors and administrators; second, trustees of an express trust; third, persons with whom, or in whose name, a contract is made for the benefit of another; and, fourth, persons expressly authorized by statute."^ § 53. 1. Actions by Executors and Administrators. The necessary exception contained in the statute as to the personal representative of a deceased person leaves unaffected his right to sue in his own name,^* whether personally or in his representative ca- pacity, although other provisions, as will be hereafter noticed, may authorize him to become a party where he could not have been in common-law actions. In this connection we are chiefly concerned to inquire as to when the executor or administrator must, or may, sue in his representative capacity — that is, as such executor, etc. — and when in his own name. To enable us to answer the inquiry, it should be noted that the personal representative of an estate represents it only in regard to such claims and other property as belonged to the testator or in- tlie New York Code, is not precisely the same, but in none of them is a trustee of an express trust confounded witli one in whose name a contract may be made for the benefit of another. *3 See upon the interpretation of this section, Pom. Civ. Proc. § 171 et seq. *4 [At common law an executor or administrator could sue in his own name in respect to all actions concerning the personal estate of the decedent, be- cause lie held the legal title to the same. Greenleaf v. Allen, 127 Mass. 248. They may also sue in respect to the real property when they are author- ized to take the management and conti'ol of the same by a will or by statute. Emeric v. Penniman, 20 Cal. 119. And, further, all actions that sm-vive may be brought by the personal representatives. Where death of the plain- tiff occurs during the pendency of an action which does not survive, the personal representatives may not revive the same. Also in appealed cases which do not survive, and which have been reversed and remanded for a new trial, and verdict for defendant, and thereafter plaintiff dies, no appeal lies in favor of the personal representatives of the deceased. Stout V. Indianapolis & St. L. Ey. Co., 41 Ind. 149. The personal representatives of a decedent are entitled to the annual crops growing on the real estate owned by the decedent at the time of his death, and are therefore the proper parties in an action relating thereto. Humphrey v. Merritt, 51 Ind. 197.] (82) CH. IV. J PLAIMIPFS IN ACTIONS EX CONTRACTU. § 53 testate at his death, and that, ordinarily, subsequent contracts, al- though made concerning the assets, are his own. Thus, if a promis- sory note be made payable to him, although as executor or adminis- trator, he does not trace his title through the deceased, he does not represent the deceased in enforcing a contract made with him, but may count upon it as a promise made to himself. So, if the instru- ment were the property of decedent, and were payable to bearer, the representative is the bearer and may treat it as his own. In these cases he may, at his election, sue in his representative capacity — ^in which case he must plead and prove his authority. The right to sue in his own name, or as executor or administrator, at his election, although once questioned, is now established.^' On the resignation or death of the administrator, the paper may pass to his successor, and, unless it has been previously collected by his own personal representative, such successor may bring suit as adminis- trator de bonis non,^" though a contrary view has been taken in Missouri.^^ The doctrine as generally received is thus stated in Mowry v. Adams,** by Parker, C. J.: "It is settled that where a contract is made with an executor or administrator personally, after 45 Mowry v. Adams, 14 Mass. 327; Bright v. Currie, 5 Sandf. 433; Merritt V. Seaman, 6 N. Y. 168; Savage v. Meriam, 1 Blackf. 176; Patchen v. Wilson, 4 Hill, 57; Olive v. Townsend, 16 Iowa, 430; Lawrence v. Vilas, 20 Wis. 381. 46 Catherwood v. Cbabaud, 1 Barn. & C. 150. In tbis case a bill of ex- change, indorsed in blank, was delivered to the administratrix in payment of a debt due the deceased. Upon her death it was sued by the administrator de bonis non, and, upon full consideration, each judge giving an opinion, his right to bring the action was sustained. The case is given at length in note o, 1 Pars. Notes & B. 156. •" Harney v. Dutcher, 15 Mo. 89. The action was brought by an administra- tor de bonis non upon a note for the hire of a slave belonging to the estate, and another agreement in regard to him, given to and made with his prede- cessor as administrator, who resigned before the note fell due. A demurrer to the petition, upon the ground that the plaintiff had not the legal capacity to sue, was sustained. The court assumes that the original administrator was entitled to the money in his own right, or as trustee, the contract having been in his own name for the benefit of another. The latter supposition would give him a right to sue, but should not the beneficiary— i. e., the estate as represented by the administrator de bonis non— being the real party in interest, also have the right? 48 14 Mass. 327. The administrator of a surety had paid the debt of his (83) § 53 OF THE ACTION. [PABT I. the death of the testator or intestate, or where money is received by the person sued after death, in such cases the executor or admin- istrator may either sue in his own name or as executor or adminis- trator." It necessarily follows that, if the administrator die before suit, the action may be either in the name of his own representative or in that of the administrator de bonis non. As shown by the judges in Catherwood v. Chabaud, it may, under different circumstances, be best for one or the other to sue — as, on the one hand, if the amount to be recovered would be assets of the first intestate, it would save a transfer to let the action be brought by the administrator de bonis non; but, on the other hand, if the original administrator had al- ready charged himself with the amount, his own representative is the proper plaintiff. The executor and administrator can, ordinarily, bring no action for an injury to, or upon a contract pertaining to, the realty unless a debt had been created previous to the death of decedent; and for the plain reason that the title to the realty passes to the heir. But California has so far changed the common law as to give the per- sonal representative the possession of a;ll the estate of decedent, real and personal, for the purpose of administration, and expressly authorizes the maintenance of actions by executors and adminis- trators for the recovery of any property, real or personal, or for the possession thereof. *° The Missouri Administration Act authorizes executors and administrators, under direction of the Probate Court, principal, and it was lield that be might bring the action against the principal in his own name, because the liability of the principal accrued when the debt was paid, and this was after the death of the intestate. 49 Code Civ. Proc. Cal. 1876, §§ 1581, 1582; also section 1452. The right is not exclusive, as the heirs or devisees are authorized, either themselves or jointly with the executor or administrator, to sue for the possession of real estate, or for the purpose of quieting title against any one except the executor, etc. For construction of these sections, see Curtis v. Sutter, 15 Cal. 264; Meeks v. Hahn, 20 Cal. 620; UpdegrafC v. Trask, 18 Cal. 459; Grattan v. Wiggins, 23 Cal. 29; Emeric v. Penniman, 26 Cal. 119. [As a general rule, the right of the personal representatives to sue is confined to the courts of the state of their appointment, and are not permitted to bring a suit in a for- eign jurisdiction, without first taking out letters of administration there. However, this is matter of defense, and, if no objection is raised, it is waived.] (84) CH.IV.j PLAINTIFFS IN ACTIONS EX CONTRACTU. § 54 to lease the real estate of decedent for any term not over two 3-ears, and to receive and recover rents.°" § 54. 2. Actions by Trustees of an express Trust, It is evident from the use of the term "express trust" that it can- not have been the legislative intention to authorize all who may be, or may be held to be, trustees to sue in their own name. An ex- press trust must be one directly created, and when pertaining to the realty, evidenced by an insitrument in writing." The term, as ap- plied to land, had been limited in Kew York by the Eevised Statutes, and, the title to the land is vested in the trustee, with certain duties to be performed. Mr. Kent calls them active trusts, and says that "express trusts are allowed in those cases only in which the pur- poses of the trust require that the legal estate should pass to the trustee." ^^ In Indiana, Elliott, C. J., ^^ says: "An express trust is simply a trust created by the direct and positive acts of the parties, by some writing, deed, or will." In Wisconsin Dixon, C. J.,^^ says the plaintiff in that case "is not the trustee of an express trust, be- cause no such trust appears from the assignment, and none is shown to exist between himself and his co-partners by virtue of any other instrument. In order to constitute a trustee of an express trust, as I understand the statute, there must be some express agreement to that effect, or something which in law is equivalent to such an agreement. The case of factors and mercantile agents may or may not constitute an exception under the custom of merchants,^^ but 50 Wag. St. 89, ■§ 48 (Rev. St. 1879, § 129). 51 [Ante, § 52, note.] 52 4 Kent, Comm. 309, 310. 63 In Weaver v. Trustees, 28 Ind. 112. 64 In Robbins v. Deverill, 20 Wis. 150. 55 Grinnell v. Schmidt, 2 Sandf. 706. Tlie reference to Grinnell v Sclimidt by tbe learned judge is to a case that arose in New Yorli in 1850, after tlie adoption of the first clause of the section under consideration, and before the addition of the provision including those with whom, or in «hosc name, a con- tract was made for tbe benefit of another. In tliat case the plaintiffs had pur- chased and shipped a cargo in their own names, but really were acting for oth- ers, and the action was to recover the proceeds of the cargo. In common-law practice, such agents always prosecuted in their own name. "The conti'act was made by them in their own name, the corn was purchased and shipped by (85) § 54 OF THE ACTION. [PAET I. in every other case the trust must, I think, be expressed by some agreement of the parties — not necessarily, perhaps, in writing, but either written or verbal, according to the nature of the transaction." The New York Court of Appeals ^^ defines express trusts as follows: "Express trusts, at least after the adoption of the Revised Statutes, were deiined to be trusts created by the direct and positive acts of the parties, by some writing, or deed, or will." Courts have not been careful to distinguish between trustees of an express trust, and those with whom, or in whose name, agreements are made for the benefit of others; ^' nor is it practically necessary, unless for greater precision in distinguishing trustees proper from other agents. Express trusts are usually created concerning the realty, when they must be evidenced by a writing; but the statute of frauds does not apply to trusts concerning personalty or choses in action. Certain promissory notes payable to order were indorsed to the plaintiif, with the express understanding that he should hold and collect the same for the benefit of, and as trustee for, his own firm and several other parties named. He was allowed to sue in his tliem, and tliey were personally liable for the freight." The plaintiffs had a right to receive the money and discharge the claim, and would have if their principals had been made parties. A verdict and judgment had been obtained, and the court refused to open it to require other parties to be brought in — a very sensible conclusion; but still it is difHcult to see how the plaintiffs could be called trustees of an express trust. 56 Couslderant v. Brisbane, 22 N. Y. 389. 57 [Instances of the iformer are: An assignment for the benefit of creditors. Witter V. Little, 66 Iowa, 431, 23 N. \Y. 909; Lewis v. Graham, 4 Abb. Pr. 106; generally, an ordinary deed of trust, Gardner v. Armstrong, 31 Mo. 535; a mortgagee of lands for the use and benefit of another, Goodrich v. City of Milwauliee, 24 Wis. 422; a sheriff, for the purpose of recovering the purchase price of property sold on execution, McKee v. Lineberger, 69 N. C. 217-239. Illustrations of the latter are: An auctioneer, Minturn v. Main, 7 N. Y. 224; an agent, Considerant v. Brisbane, 22 N. Y. 389; Swift v. Pacific Mail S. S. Co., 106 N. Y. 206, 12 N. E. 583; Wolfe v. Missouri Pac. Ey. Co., 97 Mo. 473, 11 S. W. 49. It was held in the case of Kelly v. Thuey, 102 Mo. 522, 15 S. W. 62, that, where an agent makes a contract in his own name, to buy land, and to give a deed of trust thereon to secure the unpaid purchase money, he alone can sue to compel specific performance of the contract, though the vendor knew the agent was acting for an unnamed principal. Howe v. Rand. Ill Ind. 206, 12 N. E. 377.] (86) OH IV.] PLAINTIFFS IN ACTIONS EX CONTRACTU. § 64 own name as trustee.'^ So when he holds a security to be collected and applied in payment of a debt due from himself. '''' The general assignee of choses in action for the benefit of creditors is a trustee of an express trust."" The common instances of express trusts are where property is conveyed to trustees to hold for the separate use of married women, as is customary in those states that have not passed the Married Woman's Acts, so called ; or to hold and apply the proceeds for the benefit of infants, or other persons, to whom a grantor or testator is unwilling to give possession; or to hold in trust to secure a debt due another, with or without power of sale. When the trust is so declared, it is, of course, express. In an ordinary deed of trust to secure a debt, with power of sale, the trustee, upon sale under the power, is the proper party plaintiff to recover the purchase- money; °^ also, where one had conveyed personal property to trustees to the use of himself and wife for life, remainder to his children, if some of the property was wrongfully sold during their lives, it is held in Missouri that an action for its recovery, instituted after their death, must be in the name of the trustees ; and that the chil- dren cannot sue."^ Nor, where it had been so conveyed for the use of the wife, and was afterwards sold by the husband, were the hus- band and wife permitted to recover it back in their own names. The suit should have been brought by the trustee,*'' and such assignee in 08 Clark v. Titcomb, 42 Barb. I'JJ. Although he would have had a right to sue as indorsee, according to the prevailing view, as shown in the next but one preceding section. 59 Gardinier v. Kellogg, 14 Wis. 60.o; [Davidson v. Elms, 67 N. C. 228]. 00 McClain v. Weidemeyer, 25 Mo. 364; Mellen v. Insurance Co., 17 N. Y. 615; Mill Co. v. Vandall, 1 Minn. 246 (Gil. 195); Lewis v. Graham, 4 Abb. Pr. 106. In Palmer v. Smedlej', 28 Barb. 468, the complaint— which alle,^t'(l that the plaintilf was the assignee of the credits of Antioch College, was om- powered to sue for, collect, etc; that defendant gave his note to the college, which was now in the plaintiif's hands as the property of the college, which was the lawful holder and owner— was held bad on demurrer. Quaere. 61 Gardner v. Armstrong, 31 Mo. 535. 62 Gibbons v.. Gentry, 20 Mo. 468. 83 Richardson v. Means, 22 Mo. 495. In these cases "it was clearly the duty of the trustee to protect the property; but it must not be inferred that the court intended to deny to the beneficiaries the right to enforce the trust, on his default (87) § 56 OF THE ACTION. [PAET I. trust, when the wife is to have exclusive possession of the chattels, is the proper party to restrain an interference by a stranger.'* § 55. 3. By Persons with whom, or in whose Name, a Contract is made for the Benefit of another. Notwithstanding the attempt in most of the code states, to make the term "trustees of an express trust" cover this class of persons, yet they are not necessarily included. They hold a trust relation in regard to the contract, or its proceeds, yet the mere fact that it is made for the benefit of another, when no express trust has been otherwise created, does not make them such trustees. Practically, the distinction may be of little importance, as the same rule in re- spect to parties holds in either case, yet it is universally recognized in the law of trusts, and in reasoning upon the subject, confusion arises from disregarding it. The cases are numerous in which this provision has been considered, and in noting a portion of them, I will speak, first, of those where the transaction is held not to be of such a nature as to authorize the action in the name of one who is not the real party in interest; second, where the transaction is of such a nature as to so authorize it. § 56. 3. Continued — An Agent merely, not authorized to sue. The Wisconsin Supreme Court has said that a security assigned TO be collected and applied upon a debt due from the assignors to a firm of which the assignee was a member, cannot be collected in the name of the assignee.'^ A mere agent cannot, in his own name, prosecute a suit to protect his principal; '" although, in dealing with T 04 Reed v. Harris, 7 Rob. (N. Y.) 151. 65 Robbing V. Deverill, 20 Wis. 150. Reference is Had, in section 54 to the opinion of Dixon, C. J., delivered in this case, and it should be noted that the authority of the opinion is weakened from the fact that the pleading, though held to be defective, was sustained because not objected to by de- murrer or answer. Strictly, then, the only point decided was that the objeo tion came too late, although the opinion is very suggestive. 66 Redfield V. Middleton, 7 Bosw. 649. (88) CH. IV.] PLAINTI1.-FS IN ACTIONS EX CONTHACTU. § 67 the funds of his principal, he may be decreed to hold in trust the property he may thus acquire, it is not an express trust, and he will not be authorized to sue unless the contract was made in his name. In Indiana, a suit was brought for rent, etc., by the agent upon a written lease, expressed to be between the agent and the lessee; the lease after\^ards saying, "I, A. B., agent for C. D., do agree to rent (the premises) to E. F., for (a certain sum), and on failure on the part of E. F. to pay the rent as, etc., then it is hereby agreed between A. B., landlord, and E. F., tenant, that the contract is at an end," signed by the tenant only. Held, that the agent is not en- titled to sue in his own name, as there was no express promise to pay the rent to him.°^ An ordinary commercial broker who does not buy or sell in his own name, and is not entitled to the possession and control of the goods,'*^ is but a simple agent; but if he guaran- tees the pajTuent, he is said to have a del credere commission, in which case, or if he has advanced money on the goods, he has an interest and may sue. This was the doctrine before the Code,"' and is not changed. One who loans money part of which belongs to another, taking no written promise to repay, can sue upon an im- plied promise in his own name only for the part belonging to him. The indebtedness for the portion of the money belonging to the other person is to that person, and not to the agent.^" § 57. 3. Continued — Cases where the Representative can sue in his o-wn Name. It is not disputed that an agent who makes a contract in his own name, without disclosing the name of his principal, comes within the statute and may sue in his own name, or in that of his prin- cipal.^^ An agent may become the payee of a promissory note or bill of exchange given him in payment of a debt due another, or 67 Rawlings v. Fuller, 31 Ind. 255. This comes near being a contract be- tween the agent and lessee. 08 Story, Ag. § 28. 60 White V. Chouteau, 10 Barb. 202. 70 Swift V. Swift, 46 Cal. 2U0. "Morgan v. Reid, 7 Abb. Pr. 215; St. John v. Griffith, 2 Abb. Pr. 198; Erickson v. Compton, 6 How. Pr. 471. As a lease signed "A. as agent of the owner." Morgan v. Reid, supra. (89) § 57 OF THE ACTION. [PART I. where the consideration otherwise springs from another; in such ease as at common law, the agent may bring an action in his own name. Mercantile agents, and factors doing business in their own names, though for others, come within the provisions of this clauseJ^ It has been doubted whether, upon a contract with an agent, where the name of the principal is disclosed, the agent can bring an action in Ms own name. But this question has been decided in the affirmative, in several well-considered cases. One arose in New York,''^ when the promise had been made to the plaintiff as executive agent of a foreign company, — naming it, and it had been held in the supreme court, that, although the plaintiff's name was contained in the contract, inasmuch as his representative character was designated, the promise, in judgment of law, was made to the principal. But the court of appeals held that the old rule was not changed; that to limit the requirement to bring actions in the name of the real party in interest, it was provided that one with whom, or in whose name, a contract is made for the benefit of an- other shall be considered so far a trustee as to authorize an action in his name, whether his representative character be disclosed or not; and to enable him thus to sue, it does not matter whether the promise be made to him as agent for the party in interest or in trust for such party. In another case a deputy sheriff had taken an indemnity bond, payable to the sheriff himself, but to in- demnify the former and all others who should assist him in the premises, and it was held that the sheriff was a proper party plain- tiff in an action for the benefit of the deputy.^* In a case in In- diana the plaintiffs were a corporation by the name of the Trustees of the Wabash «& Erie Canal. An association had been formed by persons interested in the navigation of the canal, for raising money 72 Grinnell v. Schmidt, 2 Sandf. 706. This case was decided before the clause under consideration was added to the statute, and it was afterwards added to cover the case. Ante, § 54, note. 73 Considerant v. Brisbane, 22 N. Y. 389. 7* Stilwell V. Hurlbert, 18 N. Y. 374. In the opinion, Harris, J., said that the plaintife became a "trustee of an express trust." He could not have in- tended to use the term "express trust" in its ordinary sense, but only as en- larged to include those in whose name a contract is made for the benefit of another. m <^H. IV. ] PLAINTIFFS IN ACTIONS EX CONTRACTU. § 57 to keep it in repair, and the action was against one of the sub- scribers to the fund. The members of the association had, by its articles, agreed that, upon failure to pay assessments, the plain- tiffs, upon the request of the Executive Committee of the Associa- tion, should enforce the payment by suit in their corporate name, and hold the money collected in trust for the association. The sub- scription was payable to the Executive Committee, but to be en- forced as above; and the association had agreed with the plain- tiffs, upon certain conditions, to put the canal in repair. It was held tliat the action was properly brought in the name of the plaintiffs." Where a note is made payable to one, but to hold in trust for oth- ers; ^® or where one is the payee of a note given for land belonging to another, although the mortgage to secure it be given directly to the beneficiaries;'^ or where the defendant promises to pay to an agent of a public institution for its endowment; " or where one becomes the obligee of a bond for his own use and the use of an- other; ■'' or where one has entered into an agreement with de- cedent, by which the latter had promised him that his daughter shall receive certain property by will; '" or where an agent for the sale of mowing-machines sells on commission in his own name;^^ or where a partner contracts in his own name, but for the benefit 75 WEAVER V. TRUSTEES, 28 Ind. 112. The court, in its opinion, per Elliot, J., after defining an express trust as simply a trust created by the direct and positive acts of the parties by some writing, or deed or will, ac- cording to the language used in Considerant v. Brisbane, supra, speaks of the provision that the term shall be construed as including one with whom, or in whose name, a contract is made for the benefit of another, as enlarging its scope so as to include the obligees in such contracts. It does not clearly ap- pear whether the court intended to call the plaintiffs express trustees or par- ties to the contract, or parties having an interest. Its reasoning points in each direction; but, in conclusion, the subscription to the fund is held, in effect, to be an inducement to, and to form a part of, the contract between the trustees and the association for repairing and using the canal, and in which they have an interest. ■76 Scantlin v. Allison, 12 Kan. 85. 77 Ord V. McKee, 5 Cal. 515. 78 Winters v. Rush, 34 Cal. 136. 78 Cheltenham Fire Brick Co. v. Cook, 44 Mo. 29. go Wright V. Tinsley, 30 Mo. 389. »i Davis V. Reynolds, 48 How. Pr. 210, afflrmed 5 Hun, 651. (01) § 5S OP THE ACTION. [PAKT I. of his flrm;^^ or where the nominal proprietor of a private bank does the business in his own name ; ^' or where the auctioneer sells in his own name; ^* — in all these cases the agent is authorized to bring an action in his own name.^° § 58. 3. May the Beneficiary also sue. Express trusts are usually created for the purpose of depriving the beneficiary of control over the property or fund, while he enjoys the benefits derived from, or the proceeds of, its use. This is the case with trusts for married women, usually created by marriage settlements, for insane or profligate children, for charities, and with assignments in trust for the payment of debts. In these cases, if the beneficiary had general power to bring actions in respect to the property, the object of the trust might be defeated. Possession and control are given to the trustee for a supposed good reason, and the design of the donor or testator is to keep it out of the hands of the beneficiary. Yet, notwithstanding this disability, he may bring his action against the trustee, to enforce the trust, to compel him to perform his duty; also if the beneficiary is in the actual and rightful enjoyment and possession of the trust property, he or she should be allowed to sue for a disturbance of such possession — as, for a trespass. In the case, however, of contracts made for the benefit of others, where there is no express trust, a different rule prevails. "It is no longer absolutely necessary that the party to -jehom the 82 Taylor v. The Robert Campbell, 20 Mo. 254. 83 Burbank v. Beach, 15 Barb. 326. 8* Bogart V. O'Regan, 1 E. D. Smith, 590. Citations under this and the preceding sections might be greatly extended. 85 [Judge Maxwell, in his valuable work on Code Pleading (at page 28, n. 7), gives the following summary as to when an agent may sue in his own name: "1st. Where the contract is in writing, made directly with the agent in his own name. 2d. Where the agent is the only known principal. 3d. Where the agent has made a contract in ^\hich he has a special interest or property." Morgan v. Reid, 7 Abb. Pr. 215; Considerant v. Brisbane, 22 N. Y. 389; Winters v. Rush, 34 Cal. 130; Albany & Rensselaer Co. v. Lundberg, 121 U. S. 451, 7 Sup. Ct. 958; Coffin v. Grand Rapids Hydraulic Co., 136 N. Y. 655, 32 N. K. 1076.] (92) CH. IV. J PLAINTIFFS IN ACTIONS EX CONTUACTU. g 58 promise is made shall be the plaintiff on the record in an action to enforce it. That is to say, if the promise is made for the benefit of another, who is the real party in interest, the latter may sue, though the promise is made to an agent or trustee; or, in the case last supposed, the agent or trustee, or person in whose name a con- tract is made for the benefit of another, may sue without joining the party for whose benefit the suit is prosecuted;"*" and this is the general holding where the question has been raised.*^ The right of either party to sue — the one as the person to whom the promise was made, and the other as the real party in interest '* — can not be denied unless there is an express trust, and there is something in its nature, or in the relation of the trustee or bene- ficiary, that would forbid an intermeddling by the latter.'^ This right should be distinguished from the obligation imposed upon an 86 Dillon, J., in Rice v. Savery, 22 Iowa, 471. 87 Meyer v. Lowell, 44 Mo. 328; Flanagan v. Hutchinson, 47 Mo. 237; Union India Rubber Co. v. Tomlinson, 1 E. D. Smith, 364; Erickson v. Compton, 6 How. Pr. 471; Lawrence v. Fox, 20 N. Y. 2G8; Secor v. Lord, *42 N. Y. 525. A distinction in this regard was made at common law between simple contracts and those under seal, but that distinction is no longer recog- nized, and one for whose beneflt a sealed instrument is executed may sue upon it. Rogers v. Gossnell, 51 Mo. 466; Van Schaick v. Thii-d Ave. R. Co., 38 N. Y. 340; Ricard v. Sanderson, 41 N. Y. 179; Coster v. Mayor, 43 N. Y. 399; [Emmitt v. Brophy, 42 Ohio St. 82.] 88 [Judge Owen, in the case of Emmitt v. Brophy, 42 Ohio St. 82, says: "It is settled in this state that an agreement made on a valid consideration, by one person with another, to pay money to a third, can be enforced by the latter in his own name."] 89 The right of the person for whose use a contract has been made to enforce it in his own name has not the same basis as the right of a beneflciary to prosecute the trustee for the enforcement of the trust. The latter could formerly be done only in a court of equity; now, by the ordinary action. But the remedy is the same as before. Thus, where a trustee has purchased property at his own sale, it is, as before, a constructive fraud, and the ben- eficiaries may at any time apply to the court to have the sale set aside, and for a resale. Hubbell v. Medbury, 53 N. Y. 98. And, by way of argument, the Supreme Court of California, in Tyler v. Houghton, 25 Cal. 29, lays it down as an undisputed proposition, that where a trustee fails in his duty to pro- tect the property of his beneficiary from waste, or trespass, or ouster, the latter may bring an action to compel him to do so. (93) § 59 OF THE ACTION. [PAET I. agent to sue in his own name when he has executed a sealed instru- ment, without disclosing his principal."" § 59. 3. No change made by this Limitation. The authority to bring the action given to one "With whom or in whose name a contract is made for the benefit of another" is a limitation upon the general requirement that it should be brought in the name of the real party in interest. It is intended to preserve the common-law doctrine as to two classes of contracts and of itself makes no change. The promisee or obligee of a contract, with or without description of its agency, is at common law the legal holder of the paper and can sue at law in his own name."^ He has not only the power but is ordinarily bound to do so, for, unless the contract be in the form of negotiable paper, it cannot be transfeiTed to the principal, and hence, were the agent forbidden to thus bring the action, it could not be enforced at law."^ So when the promise is in terms made to the agent, as by a promissory note, whether negotiable or otherwise, given to him in his own name for property of the principal, no change is made by this limitation, but another and the leading provision of the code which authorizes an action in the name of the real party in interest, in effect permits hita to transfer to his principal non-negotiable as well as negotiable con- tracts, who may then, or even without such transfer, sue for himself. A mere agent, without such promise to him cannot sue in his own name, either at common law or under the code. The presumption is that the agent acts for his principal, and, unless he has a per- sonal interest in the transaction, as shown in the next section, or 00 One who, by verbal direction of the owner, executes, in his own name, a lease of real property under seal, although describing himself as agent and who has not assigned the lease to such owner, must bring the action upon the lease in his own name. The real owner cannot sue upon it. Schaeffer v. Henkel, 75 N. Y. 378. And so in a contract for the sale of land. Briggs V. Partridge, 64 N. Y. 357. This distinction should not be made in states where seals are in effect abolished. 01 Buffington v. Chadwick, 8 Mass. 103; Harp v. Osgood, 2 Hill (N. Y.) 216; Sargent v. Morris, 3 Barn. & Aid. 277; Story, Ag. § 401. »2 Harp V. Osgood, supra. (94) CH. IV. ] PLAINTIFFS IN ACTIONS EX CONTEACTU. § 59a unless the contract is expressly made witti him for himself or in his name, the principal only can bring the action. § 59a. Continued — As to Contracts in whicli the Agent has an Interest. The preceding sections have reference only to contracts in which the agent has no personal interest. But there is a large class of agencies where the business is done in the name of the agent, in which the agent has an interest and a special property in the sub- ject-matter of the agency as that of a factor, a broker with a del credere commission, or an auctioneer. In this class, at common law, the agent is permitted or required to sue in his own name — a different rule would involve great iuconvenience. As regards auc- tioneers, the New York Court of Appeals, in an action under the common-law procedure, says: "An auctioneer has such a special property or interest in the subject matter of the sale that he may sue in his own name, unless the principal or real owner elect to bring the action in his name. Chitty, Cont. 185. And it is not neces- sary to prove that he has a special property or interest, for that flows, as a matter of course, from his position as an auctioneer; and it is only where a party acts as a mere agent or servant that a special beneficial interest must be proved to maintain an action, or may be disproved to defeat it." "^ 83 Mintum v. Main, 7 N. Y. 220. In Buckbee v. Brown, 21 Wend. 110, Justice Cowen, airier tiaving shown tliat tlie plaintiff in the case at bar was but an agent doing business in the name of his principal, and that, consequently, he could not sue in his own name, proceeds to give a large class of cases where an agent would be thus authorizetl to sue. Says this very learned judge: "It is not necessary to deny that an express contract to pay A. for the use of B., on a consideration moving from B., will raise such a legal interest, by way of trust, as will maintain an action in A.'s name, though even that has been doubted, as will be seen by what Eyre, O. J., said in Piggott v. Thompson, 3 Bos. & P. 147. Nor is it necessary to deny the rights of factors, commission merchants, carriers, auctioneers, masters of vessels, etc., to maintain actions either for tortiously interfering with their possession or to recover prices, or for moneys falling due to them in various ways in respect to their interest, duties, liens, or liabilities. They are bailees, and have a special property. Their right to sue in their own names will be found mainly to arise out of iheir legal interest. They are not naked agents. A factor or broker sell- (95) § S9a OF THE ACTION. [PAKT I. Other instances where the action can be brought at common law in the name of the agent are given in the note. It is thus seen that the exception under consideration to the requirement that the ac- ing goods under a del credere commission Is a quasi-owner. Neither the principal nor purchaser ordinarily thinks of looking beyond him. Morris v. Cloasby, 1 Maule & S. 57G, 580; Sadler v. Leigh, 4 Camp. 195. An auctioneer sold the goods on the premises of his principal; the purchaser, by a trick, got them away without payment. The auctioneer paid the price to his principal and sued the pm'chaser in his own name for goods sold, and the action was held to lie. Lord Loughborough gave the reason 'that the auctioneer has the posses- sion coupled with an interest, in goods which he is employed to sell — not a bare custody, like a servant or shopman.' Heath, J., added, if they should be stolen, he might bring trespass. Wilson, J., added another ground, that of estoppel; the defendant, having bought of the plaintiff having custody, should not gainsay his right to recover as vendor. Williams v. Millington, 1 H. Bl. 81. See, also, Coppin v. Walker, 2 Marsh. 497, 7 Taunt. 237. Similar reasons will be found to run through those cases where actions have been sustained by the various bailees I have mentioned, A master has a special property in a vessel, and may, therefore, declare for freight of goods as carried in his Vessel, although he be not the owner. Shields v. Davis, 6 Taunt. 65. An- other instance is Atkyns v. Amber, 2 Esp. 493. The plaintiff was there a pledgee of the goods which he had sold as such, and was suing for the price. See Brown v. Hodgson, 4 Taunt. 189, as to carrier. A broker in a matter of insm'ance, especially if he act under a del credere commission, is also regarded as principal, and may sue or be sued in his own name. Grove v. Dubois, 1 Term R. 112. This case is treated by a learned writer as an ex- ception, implied from the coui'se of ti'ade. Ham. Parties, 11. If they have no commission del credere, they may maintain an action in respect to their lien, if the contract be made in their own names, though on account of their principals. Parker v. Beasley, 2 Maule & S. 423. In this case they claimed by virtue of policy running to them by name, on account of their principals. Bailey, J., said that 'by suffering their names to be inserted in the policies, the underwriter has agreed that they shall be considered as principals, If they have an interest' " In this case a whai-finger had sued in his own name, but was held to be a mere agent, collecting for the owners. In White v. Chouteau, 10 Barb. 202, it was held that an ordinary merchandise broker who does business in the name of his principal has no right to sue in his ovsoi name; the right to do so is extended to those only who sell under a del credere com- , mission, or to brokers or factors who have made advances upon the goods sold by them, or to auctioneers, or persons having some special property or interest in the subject-matter of the agreement; and in Dows v. Cobb, 12 Barb. 310, the consignee or indorsee of a bill of lading was not allowed thus to sue; the action should be by the ship^', or, if he be an agent merely, by the owner. (D6) CH. IV.] PLAINTIFFS IN ACTIONS EX CONTBACTU. § 61 tion be brought ta tlie name of the real party in interest covers a large class of cases where the greatest confusion would arise were the rule to be absolute. Without the limitation it might be doubted whether the real owner should not be required to bring the action upon all contracts made on his account and in his interest not- withstanding their compli-cation and that of their subject-matter with other interests and notwithstanding the contract was made in the name of the agent.'* To remove this doubt we have the lim- itation under consideration, which is intended to preserve the common-law right in this class of cases as well as the one named in the preceding section. § 60. 4. By Persons expressly authorized by Statute. Xo attempt will be made to enumerate the classes of persona authorized by statute to sue in their own name, although for the benefit of others, nor to specify the numerous cases where the ac- tion is required to be in the name of the state, or some municipal body. The pleader wUl, of necessity, consult the statute of his own state, and he will find that provision is made as to who should be the obligee in bonds of public ofScers; and in bonds of those who are placed in fiduciary relations by public authorities — -as, execu- tors, administrators, guardians, etc.; and sometimes persons are designated who may sue on behalf of voluntary associations and joint-stock companies. § 61. Joinder of Plaintiffs — The general Rule. The statutory provisions in regard to the joinder of plaintiffs are il) permissive and (2) imperative. The following is the first: "All «*In Grinnell v. Schmidt, 2 Sandf. 706, which arose under the Ode, but before the addition of the clause regarding those in whose names conti-acts are made for the benefit of others, the court labored to bring the relation of ■commercial agents and factors within the category of trustees of an express trust, evidently embarrassed with the great inconvenience of no longer per- mitting this class of agents to sue in their own name. [Kelly v. Thuey, 102 Mo. 522, 15 S. W. 62. Where a contract not under seal is made with an agent iii his own name, for an undisclosed principal, whether he describes himself as agent or not, either the agent or principal may sue. Ludwig v. Gillespie, 105 N. T. 653, 11 N. E. 835; Oonsiderant v. Brisbane, 22 N. Y. 389.] BLISS CODE PL. 7 (97) § 61 OF THE ACTION. [PAET I. persons having an interest in the subject of the action and in ob- taining the relief demanded, may join as plaintiffs, except as other- wise provided," °° etc. This provision is followed by [the second], to wit, that "the parties who are united in interest °' must be joined as plaintiffs or defendants; but, if, the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made defendant, the reason thereof being stated in the complaint" (or petition).^' These two provisions are familiar to equity pleaders. But though drawn from equity practice, it must not be hence in- ferred that they apply only to actions for equitable relief; for, as i)5 [These rules are substantially the statutory provisions in all the code states, which will be seen from the following references: Code Civ. Proe. N. Y. §§ 446-448; Rev. St. Ohio, §§ 5005-5007; Code Civ. Proc. Cal. §§ 378-382; Rev. St. Ind. §§ 262, 269; Code Iowa, §§ 3750-3753; Rev. St. Wis. §§ 2602-2604; Gen. St. Kan. pars. 4112-4114; Consol. St. Neb. §S 4573^575; Code Civ. Proc. Colo. §§ 10-12; Gen. St. Conn. §§ 883, 884; Rev. St. Mo. § 1994; Rev. St. Wyo. §§ 2394^2396; Code Wash. § 143; Code N. C. § 185; Code Civ. Proc. S. 0. §§ 13S-140; Code Or. §§ 384, 385; Comp. Laws N. D. §§ 4877-4879; Comp. Laws S. D. §§ 4877^1879; Mansf. Dig. Ai-li. § 4941; Comp. Laws Utah, §§ 3180-3184; Code Ky. § 34.] 88 Who are "United in Interest"? [1st. Where a promise or covenant is made with two or more persons the presumption is that tliey are united in interest, and must join in the action. There is no presumption that their interest is several, unless words separating their interest are used. The rights of the promisees or covenantees are al- ways either joint or several. They are never joint and several. Liabilities may be joint and several. The promise or covenant may be joint, and yet create but a several interest in fact, when the action will be several. Slings- by's Case, 5 Coke, 18b; Hinkle v. Davenport, 38 Iowa, 355; Gould v. Gould, 6 Wend. 263. [2d. Where two or more persons are injured in their joint rights or property or reputation it is not necessary tliat their interests should be equal, as it was at common law. The rule requiring those who are united in interest to join will not permit those to join whose separate property, for instance, is injured in the same way. Tate v. Ohio & M. R. Co., 10 Ind. 174; Heagy V. Black, 90 Ind. 534. One of the best methods of determining whether or not the interests are united is to determine whether the same evidence of injm-y affects all parties to the litigation.] 97 See same references in code section immediately or soon following. Sec- tion 11 of the Connecticut Practice Act seems to be designed to embody both these rules. (98) CH. IV. J FI.AINTIKFS JN ACTIONS KX COM'KAUTU. § 62 we have seen, and shall all along see, the chief changes made by the Code consist in applying to pleadings in all actions rules otherwise recognized in courts of equity."' The first clause in the provision secondly quoted, to wit, that parties who are united in interest — that is, those A\'ho have the same or a joint interest — ^must be joined as plaintiffs, or defendants, is a rule in all courts; but if one or more of those who have joint rights should refuse their consent to be joined as plaintiffs, there is no remedy at common law. Nor, at common law, can parties having only an interest in the subject of the action and in the remedy be united as plaintiffs, unless that interest be joint."" I recognize these rules as now made universal wherever, from the nature of the grievance or of the relief which is sought, they are applicable, and without regard to the former classification of ac- tions. Yet from the fact that they are treated by one or two courts as only pertaining to proceedings still called equitable, and that they are seldom in fact appealed to as having made any chaiige in respect to mere money demands, I will dismiss their further con- sideration, and will again speak of them in connection with other so-called equity rules.^"* § 62. Joinder of Plaintiffs at Common-la-w. As stated in the last section, the requirement to unite as plain- tiffs or defendants aU who are united in interest is imperative, and this rule embraces the one recognized in common-law pleadings, that joint obligees and those who would enforce a joint right must sue jointly.^"^ Unless modified by that part of the section au- 98 Kentucky, Arkansas, Iowa and Oregon preserve the distinction between actions at law and suits in equity; and in Oregon the provisions quoted in the text are expressly applied to equitable actions only. It may be neces- sary in those states, especially In Oregon, to modify somewhat the view taken in this section, and in chapter 5, concerning pai-ties plaintifC in equitable actions. 99 Equitable and Legal Remedies. [At common law an action for equitable and legal remedies could not be joined. Chit. PI. 1, note a; Id. 2, and note 2. But under the Code these actions may be joined.] 100 Post, c. 5, §§ 73-80. 101 1 Chit. PI. 8, 9; Henry v. >It. Pleasant Tp. 70 Mo. 500. (90) § (32 OF THE ACTION. [PAET I. thoi-izing one who lias a joint right to make those defendants who are united with him in interest but who refuse to unite with him in the action, the rule remains as before the adoption of the Code; and whether it is so modified will be hereinafter consid- ered.^"^ The scope of this requirement to thus unite as plaintiffs or defendants is given as follows: "We apprehend this union of interesit refers to such cases as joint tenants, co-trustees, partners, joint owners, or joint contractors simply, where, in fact, a separate judgment in favor of one of them would not be proper in the case stated in the complaint. * * * On a demurrer to the complaint, we apprehend that the test of unity of interest intended in the 119th section [of the Code of Procedure] (section 448, Code Civ. Proc. N. Y.) is that joint connection with, or relation to, the subject-matter, which, by the established practice of the common law courts will preclude a separate action." "^ In the history of our jurisprudence we find that those who had joint rights as joint obligees were treated, with reference to their right, as were joint tenants in the realty. There was no several in- terest; each one controlled the whole, and the right, being single, survived — not to the personal representative of any deceased co- obligee, but to the survivors and the representative of the last sur- vivor. There being no several interest, the whole right must be vindicated at once, and this could not be done without the presence, and only on the request, of all interested in that right — that is, all the living joint obligees. Although one of the claimants or obligees, has, in theory, a right to the whole, yet every other claim- ant has the same right. A judgment in favor of one for the whole claim would deprive the others of their right; a judgment for a part would be inconsistent with the idea of a joint right; hence all must recover, and jointly, or none. The adjustment among them- selves required a proceeding with which the courts of law had noth- ing to do; they recognized the joint interest as one interest, with survivorship and other incidents of joint tenancies in real prop- erty.^"* As, in legal progress, the individual interest of each obligee i«2 Chaptei- 5, §§ 77-80, 103 Hoffman, J., in Jones v. Felcli, 3 Bosw. 63. 104 Littleton (section 282) in spealjing of survivorships in. joint tenancies, says: "In the same manner it is qf debts and duties, etc., for if an obliga- (100) CH. IV.] PLAINTIFFS IN ACTIONS EX CONTRACTUJ _ ,.■' § 62 ' came to be recognized, the notion of a joint right became but a fiction. As a fact, it ceased, and should hare been treated as merged into — as having become but a right in common — analogous to tenancies in common in the realty. I do not refer to the case of trustees where the legal interest is joint in fact and the survivorship is real, but only to those con- tracts where each obligee has an actual interest in the obligation for his own use, and where, notwithstanding upon death the right of action at common law suiTives to his co-obligees, they are re- quired to account for that interest to his personal representatives. Neither do I refer to obligations to partners as such. No partner has a private personal interest in any particular contract — only in the general fund. Death dissolves the partnership, and the sur- vivors administer the assets. The right to sue necessarily survives to them, but only in trust for themselves and the estate of the de- ceased partner. His representative can have no interest in any particular contract, but only in the fund which remains after the partnership affairs have been adjusted. But as to the obligees in other contracts, and as to other joint rights, where there is no intention that the whole right or interest should go to the survivor, or where the law creates no survivorship in fact, as it does in some instances in obligations to husband and wife, there is no such joint interest as to justify the doctrine of survivorship, even in bringing the action, or to prevent the personal representative from protecting the interest of decedents by joining with the survivor. Notwithstanding the law came to recognize — and, in an imperfect way, to protect — the individual right of each joint obligee, yet at common law the rule as to parties has remained inflexible. The representative of the deceased co-obligee is not permitted to unite with the survivor, and there is no way by which a party to a joint right can enforce it, either to the entirety or to the extent of his interest, without the co-operation of all survivors who are joined with him in interest. tion be made to many for one debt, he wbich surviveth sball have the whole debt or duty. And so it is of other covenants and contracts." The fli-st de- parture from this rule seems to have been in favor of merchants, which be- came part of the common law. See Co. Litt. 182a. (101) § 63 OF THE ACTION. [PAET I. § 63. Whether the Kight is joint or several. The general rules are: (1) that a right given to two or more persons, without words of severance, create a joint, and not a several, right; but (2) if a contract, though made with more than one, con- tains a stipulation to pay a certain sum to each promisee individ- ually, or to do an act for the benefit of each one, it creates a several right. Wien (3) an obligation is given to two or more jointly and severally or is entered into to pay a certain sum to them or either of them, it creates a joint and several right, to be enforced by all the obligors jointly, or by any one of them. The action, however, must be by the whole, or by one only, and cannot be brought by two or more jointly, if less than the whole. I know nothing in the Code, as generally adopted, that so far changes the law; but there is (4) another common-law rule pertaining to this subject which is con- trary to the leading provisions of the Code, which requires, with certain named exceptions, that the action be brought in the name of the real party in interest. I refer to those cases where the obli- gation is to more than one — that is, where the obligation seems to be to the obligees jointly, but each one is specified to whom money is to be paid or for whose benefit the act is to be done. This is spoken of as a joint interest because, by the form of the agreement, the obligation is to them jointly, although there is no joint interest in the benefit to be derived from it; and Mr. Parsons justly calls it a strictly legal and technical interest.^"^ Under the rule, requir- ing that the action be brought in the name of the party or parties having the legal interest — that is, those to whom the promise is made, and from whom the consideration springs— it may be prop- erly said that all should sue, because the promise was made to all; but there is no such rule under the code, and a promisee for the ben- efit of another can sue in his own name only by virtue of one of the exceptions to the general rule. As we have seen, one to whom a promise has been made for the benefit of another may bring an ac- tion in his own name by virtue of his trust relation, but the one in whose interest the agreement was made may, at his election, him- 105 Pars. Cont. 14. (102) CH. IV. J PLAINTIFFS IN ACTIOiNS KX CONTRACTU. § 64 self sue; "° and in the case under consideration, each person entitled to the benefit of the agreement should be permitted to bring an action for his individual interest. The second class of cases spoken of, to wit, where the obligation is to more than one, but the stipula- tion is to pay a certain sum to each, is closely allied to the latter; but the right was always treated as several. Although the obligor may bind himself to A., B., and C, but if the obligation is to pay A. a certain sum, or do for him a certain thing, and to pay B. a certain sum, or do for him a certain other thing, and so with C, there is no joint right, and each must sue separately for what is due him- self.i" § 64. Assignment of Joint Eights. The assignability of joint interests and rights is recognized in equity, although, as with all choses in action except negotiable in- struments, the legal interest has not passed. Under the Code, how- ever, the whole interest of the assignor passes in the one case as in the other. Before its adoption some of the states had authorized the assignment of certain choses in action other than negotiable instruments, and so as to pass the legal title; and, hence, authorizes the assignee to bring suit in his own name. In Indiana it was held that this authority did not enable one of two joint obligees of a bond to so separately assign his interest that his assignee and the other obligee could become its legal holders."' Under the Missouri statute, however, one of two payees of a non-negotiable note was 106 Ante, § 58. 107 For a discussion of the subject of this section, see 1 Pars. Cont. bk. 1, c. 2, § 1, with the notes and cases reflerred to; and, less fully, 1 Chit. PI. pp. 10, 11. As an illustration of the proposition that the right may be several, though the obligation be in form joint, Chitty cites an indenture between. A., B., and C, by which A. demises to B. Blackacre, and to 0. Whiteaere, and covenants with them jointly that he is the owner of the close.s. Each should sue separately in respect to his distinct interest, and they cannot sue jointly, for they have no joint or entire interest in the same subject-matter. And if a party covenant with A. and B. to pay them $10 each, or an annuity to each, although the covenant be in terms joint, yet the distinct interest of each in a separate subject-matter shall attract to each coverantee an exclusive right of action in regard to his own particulai- damage. 108 Boyd V. Holmes, 1 Ind. 480. (103) §. 65 OF THE ACTION. [PART I. held to be able to so assign to his co-payee as to make him the legal holder, and enable him to sue in his own name."® This is no longer a practical question, for it cannot be doubted that, under the Code, one or more possessing with others a joint right may assign their interest in that right, either to a stranger or to the other holder or holders. We have seen"" that the old idea of a joint right has become obsolete; that each obligee and promisee has an ia- dividual interest which the law will protect, and which descends to his personal representative. That interest is assignable, and the assignee being a real party in interest, should join his assignor's co-obligee.^'^^ This view is taken in Indiana,^^^ where the assignee of one of two payees of a promissory note was held to be the real party in interest with the other payee.^^* § 65. Parties in partial Assignments."* The owner of a single demand may assign but part of his claim, and the debtor, unless he has consented to the assignment, will not 109 Smith V. Oldham, 5 Mo. 483.. 110 Ante, § 62. 111 [Several holders of promissory notes secured by the same mortgage or vendoi''s lien must join in an action to foreclose. Pettibone v. Edwards, 15 Wis. 05; Goodall v. Mopley, 45 Ind. 355; Lapping v. Duffy, 47 Ind. 51; Whit- temore v. Oil Co., 124 N. Y. 565, 27 N. E. 244.] 112 In GROA^ES v. KUBY, 24 Ind. 418. The action was brought below by Ruby and Yaryan, upon a promissory note payable to Cramer and Ruby, Cramer having assigned his half of the note to Yaiyan. The parties were objected to and the following is a clear and concise expression of the con- elusion to which the appellate court arrived: "It is urged that a part of a written contract cannot be assigned. This may be tnie at law, but not in equity. Wood v. Wallace, 24 Ind. 226; 2 Story, Eq. Jur. § 1044, and the authorities there cited. The assignment vested in Yaryan, Cramer's, interest in the note in equity. Yaryan thereby became the real party in Interest with his co-plaintiff, and they were the proper parties." The assignment of a jbint right should not be confounded with a partial assignment of a single obliga- tion, where, as concerns joinder of plaintiffs, there has been some difference of opinion. See next section. 113 As to the assignment of a partnership interest, see post, § 65c. 114 [Prior to the code the assignee of part of a demand could not sue at law. Cable V. St. Louis M. By. & Dock Co., 21 Mo. 133. But under the code the assignee of a part of a demand may sue by making the assignor a party (104) CH. IV. 1 PLAINTIFFS IN ACTIONS EX CONTRACTU. § 65 be liable in two actions, as one may not split his cause of action."' In whose name, then, shall the demand be prosecuted? By the com- mon law, such partial assignment passes no legal interest, and the action is necessarily in the name of the original holder."^ This idea seems to have been adhered to in several decisions under the Code."'^ It is plain that the partial assignee has an interest, which should not be subject to the caprice of the assignor; it is therefore said that he has an equitable interest, and must file a petition in equity making the assignor and debtor parties."' This is very well where the distinction between common-law and equity practice prevails, but the code abolishes all distinctions between legal and equitable forms of action. The debtor should not be subject to two actions upon one demand, and that reason is given for not allowing causes of action to be divided; by an action analogous to this petition in equity, the whole demand can be adjusted at once. A later case in California sustains the right of the assignee to bring his action by either plaintiff or defendant. Lapping v. Duffy, 47 Ind. 51; Grain v. Aldricli, 38 Cal. 514.] 115 See post, § 118. 116 EUidge v. Straiiglin, 2 B. Mon. 82; Baulc of Gallipolis v. Trimble, 6 B. Mon. 599. i"In CABLE v. ST. LOUIS M. BY. & DOCK CO., 21 Mo. 133, the action was for sinking the plaintiff's steamboat. It appeared in evidence that there was an insurance upon three-fourths of the boat, and that the interest insured had been abandoned to the underwriters. The defendant asked the court to instruct the ivory that the underwriters could alone sue tor the part insured, and that plaintiffs could only recover for their remain- ing interest, being one-fourth of the boat. The instruction was refused, and the court, per Scott, J., held that the action was properly in the name of the original owner of the boat; and, arguendo, that the assignment of a part of a claim— as a bond or bill— gave the assignee no right of action, but the holder, as the obligee, must sue in his own name. In Leese v. Sherwood, 21 Cal. 152, it was held that the assignment of a part of a debt made the as- signee a creditor for so much, "but did not make him a joint owner of the whole debt;" and, therefore, in an action to recover it, he is not a party plaintiff with the assignor. 118 Field V. Mayor, 6 N. Y. 179. The right of an assignee to use the name of the assignor to his own use "should be confined to cases where the whole of an entire demand is assessed to one person." Id. The Comt of Appeals has not distinctly passed upon the question of parties. Eisley v. Phoenix Bank, 83 N. Y. 318, simply decides that part of a debt may be assigned. ,(105) § 65 OF THE ACTION. [PART I. making the assignee a party as was required in the suit in equity"' and in Indiana the general doctrine is sustained that the assignee of part of a joint demand may join with the assignor in a joint ac- tion."" The logic of the requirement that actions must be brought in the name of the real party in interest, and that all who are united in interest must unite as plaintiffs, demands the union of the assignor with the assignee of a part. Unless the obligation is severed by consent of the debtor, it is still but one demand, in which both have an interest, and the permission to join is express. They are also united in interest, and cannot bring separate actions, although their interest may not be technically joint The only foundation for the opposite view is the obsolete rule that the demand is not assignable at law, or, in case of negotiable paper, that an indorsement as to part does not pass the legal title. The fact that, so far as concerns 110 In GKAIN v. ALDRICH, 38 Cal. 514, the defendants were indebted to a firm iu a large sum, and this firm has assigned part of their demand to the plaintiff, and the action was to recover the part so assigned. Held, that though at law a claim could not, without the express consent of the debtor, be split up by assignment, and suit be brought upon its parts, yet a court of equity would sustain the assignment, and take an account of the indebtedness to the original creditor and to his assignee; but to do this tlic original assignor was a necessary party. Under the Code, "legal and equita- ble relief," says the court, "are administered in the same forum and accord- ing to the same general plan. A party cannot be sent out of court merely because his facts do not entitle him to relief at law, nor merely because he is not entitled to relief in equity. He can be sent out of court only where, upon his facts, he is entitled to no relief either at law or in equity." Hence the assignee of part of a demand, by making the assignor a party, is still entitled to tlie old relief. In tliis case the objection for want of, that is for defect of parties was overruled because it was not made by demurrer or as- swer, as required by the Code. [Nevil v. Clifford, 55 Wis. 161, 12 N. W. 419; Singleton v. O'Blenis, 125 Ind. 151, 25 N. E. 154; Wiggins v. McDonald, IS Cal. 126.] 120 Lapping v. Duffy, 47 Ind. 51. In this case one of the plaintiffs below had assigned to the other plaintiff part of the judgment upon which the ac- tion was based. The joinder of the assignor and assignee as plaintiffs was held to be proper, and resulted from the fact that part of a judgment was assignable in equity. The com't recognized the right of the judgment debtor to be exempt from more than one action upon it, but this should not pre- vent a partial assignment. (io«) CH. IV.] PLAlNTIFf'S IN ACTIDXS EX CONTKAUTU. § 65a the proper parties, there is no distinction under the Code between choses in action assignable at law or in equity, also, the fact that whatever is assignable either at law or in equity is so assignable as to give the assignee a right of action in his own name, seem to have escaped the attention of some courts. If, in a partial assign- ment, either the assignor or the assignee desires to bring an action, in which the other refuses to join, the Code furnishes the familiar rule in equity pleadings that such unwilling party may be made de- fendant."^ § 65a. Same — In case of a bankrupt Partner. Under all bankrupt acts the legal and equitable title to the bank- rupt's property, including his interest in choses in actions that would survive his death, passes to the assignee. This is of essence in bankruptcy and is assumed by all courts. In respect to partner- ship claims "it is admitted in all cases that the assignees of a bank- rupt partner and the remaining solvent partner are tenants in com- mon in respect to the partnership funds, and, like all tenants in common, one party cannot call the joint property out of the hands of the other. * * * It has also been held that the solvent part- ner and the assignees of the bankrupt cannot sue alone and that they must unite in actions at law." ^^^ The mle as to parties, which is a legitimate inference from the statement as to title, is aflGirmed by the Supreme Court of New York ^^^ and is the accepted doctrine both at common law and under the code. Such bankruptcy, like death, dissolves the partnership; "* by operation of law the assignee steps into the shoes of the bankrupt partner with all his rights, buf only in respect to the collection of partnership demands and winding;, up the partnership business. His absolute right is rather to the 121 See Gi-ain v. Alclricli, 38 Oal. 514. [A claim may also be assigned cim-iug the pendency of the suit, and the assignee be substituted as plaintiff. War- ner V. Tm-ner, 18 B. Mon. 758. But this maj' not be done if it will deprive the defendant of any substantial rights. Snyder v. Phillips, 66 Iowa, 481, 24 N. W. 6. See, also, Perkins v. Marrs, 15 Colo. 2G2, 25 Pac. 168; Stewart V. Spaulding, 72 Cal. 2(U, 13 Pac. 661.] 122 Kent, Ch., in Murray v. Murray, 5 Johns. Ch., on page 70. 123 In Browning v. Marvin, 22 H'an, 547. See, also, Story, Partn. §§ 337, 338. 124 story, Partn. §§ 313, 314. (107) § 65c OF THE ACTION. [PART I. proceeds of the bankrupt's interest and in equity is more like that of the personal representative of a deceased partner. While he is a tenant in common and must join in a common-law personal ac- tion as above, yet the solvent partner has a superior equity in this, that he has a lien upon the partnership assets for the payment of debts, and, if competent, the court will ordinarily appoint him re- ceiver of such assets.^^" "Upon such appointment he will collect as receiver, stating the facts that give him authority.^^" § 656. Continued — In case of insolvency of a Partner. An insolvent partner who has assigned his interest, or whose in- terest has been sold upon execution, does not, at common law, hold the same legal relation to the partnership demands as that of a bank- rupt. The act of bankraptcy transfers the legal title to the assignee, while, by an insolvent's assignment, the assignee or purchaser, unless other^^dse provided by statute, takes only an equitable title. When such assignment, by force of the statute as in England,^^^ transfers the legal title it operates the same as in bankruptcy; but a voluntary assignment, without such declared effect, passes only the equitable title and the action, but for the Code, would be in the name of the assignor and the solvent partner to the use of the real party in inter- est. Under the Code, however, it is believed that actions to collect partnership demands, unless a receiver has been appointed, should be in the name of the solvent partner and the assignee or the purchaser at execution sale. § 65c. Same — Voluntary assignment of a partnership Interest. It is believed that when a partner, from whatever motive, volun- tarily assigns his interest in the firm, the same rules should hold, as to parties, which are given in the last two sections. ^he assignment may, or may not, operate as a dissolution. If the partnership be at will, it is at once dissoh'ed. The partnership rela- 125 See T. Pars. Partn. p. 472, note 1, and Story, Pai-tn. § 341, and note. 120 Post, § 263, and notes. 127 See Cliit. PI. (16th Am. Ed., from 7tb Eng. Ed.) pp. 30-32. (108) <;H. IV. J PLAINTIFFS IN ACTIONS EX CONTRACTU. § 6G tion is personal, may be determined by either partner at any time, and the sale of a partner's interest determines it.'" If, however, the partnership be not at -^Nill and the period be unexpired, the other partnere may treat the assignment as a ground for seeking a disso- lution,'^'' they cannot be compelled to accept a stranger. In either case, and whether the partnership go into liquidation or not, the assignee takes all the interest of his assignor and, in actions to en- force previous partnership demands, he should unite with the remaining partners; by the assignment he has become a "real party in interest.'' While a partner may assign his interest in a firm, or it may be transferred in invitam, I cannot see how he can transfer his interest in any particular obligation held by the firm. He has a joint inter- est and, for himself, and, as agent for his copartners, may assign in the firm name any one contract held by it,^^" but he holds no personal interest except as partner; he holds it, or its proceeds if sold, sub- ject to the claims of the partnership creditors and of his copartners, Ms personal interest is only in the partnership fund, not in any par- ticular chose in action, and his assignee takes nothing by the assign- ment, at least, unless the thing, the interest in which has been as- signed, can, on final settlement, be so severed from the common stock as to be held by a tenancy in common. § 66. How^ should joint Obligees assign. If the Joint obligees or promisees are partners, they are agents each for all, and a transfer by one, in the name of all, passes such title that the assignee may sue in his own name. It is unnecessary in this connection to discuss the power to make a general assignment, but from the nature of the relation, each partner is constituted a general agent for the others as to all matters within the scope of the partnership business; whatever their arrangements between them- -selves, he may make and assign agreements so as to bind the firm to ^11 strangers not cognizant of such arrangements."^ 128 Lindl. Partn. 23), 093; Pol. Partn. arts. 47, 50. 129 Id. 130 See note 1 to next section. 131 Story, Partn. §§ 101, 102, and notes. (100) § 67 OF THE ACTION. [PAKT I, But joint obligees who are not partners are not mutual agents, and an indorsement or assignment by one of several will not pass the title; all should join.^"^ An acceptor of a bill which had been in- dorsed by one of two payees cannot, however, defend upon the ground that it was improperly indorsed.^^^ § 67. As to Joinder by Tenants in Common in actions for Bent. Tenants in common may sue jointly for the recovery of rent ac- cruing upon a lease jointly made,'^^ as well as for torts not affecting the inheritance,^''^ for their interest is joint in the contract, although several in the land. Joint tenants must sue jointly upon all con- tracts relating to the estate, and parceners should join in actions affecting them jointly. Mr. Taylor, in speaking of leases by tenants in common, says: "Where tenants in common concur in granting a lease, each of them usually demises according to his estate and inter- est; the instrument containing one grant of the whole estate, with a separate render of rent to each of the lessors, and a separate covenant for the payment of rent to each. But as, under a lease in this form, the lessors must bring separate actions for their respective portions of the rent, it is better that the demise should be joint, with a render of the entire rent to the lessors simply, which will not pre- vent them from taking it as tenants in common, the rent foUowing^ the reversion; and in this case they may join in an action of covenanf, or sue separately in debt, at their option." ^^'^ The author's view of the right to sue separately is stated too» broadly. In the case last supposed, there being a joint demise, there may be, and must be, a joinder in the action if it is based upon the lease, and it does not matter whether it be called covenant or debt. The usual common-law action for rent is debt, for debt lies for a sum. 132 Carvick v. Vickery, 2 Doug. 653, and note; Stevens v. Bowers, 16 N. J. Law, 16; Sneed v. Mitchell, 1 Hayw. (N. C.) 289. 133 Jones V. Radford, 1 Camp. 83, and note. His acceptance Is certainly good as against himself, and if he is in doubt as to the title, he may require- the plaintiff to interplead with any other claimant. 134 Chit. PI. 12; [Gaboon v. Kinen, 42 Ohio St. 190.] 185 Ante, § 24. 136 Tayl. Landl. & Ten. § 116. (110) CH. IV.] 1'I,A1M'IJ.'1.S IN AvnoSS EX CUNTRACTU. § 08 certain and covenant for damages for the breach, of the other covenants in the lease, though it also lies for a breach of the covenant to pay rent."^ Upon a joint demise of tenants in common, separate actions of debt based upon it were forbidden as far back as Littleton. He says: ^^' "If two tenants in common make a lease of their tene- ments in common for terme of yeares, rendering to them a certaine rent yearely during the terme, if the rent be behind, &c., the tenants in common shall have an action of debt against the lessee, and not divers actions, for that the action is in the personalty." Tindall, C. J.,^^' quotes the above in holding that where there is no joint de- mise, the actions of debt for rent must be several. Spencer, J.,^*" gives the substance of the above from Littleton, placing the obliga- tion to sue jointly upon the ground that the action is peraonal, and holds that one of the lessors may release or receipt for the rent, and the general doctrine is affirmed in other cases.^^^ In Hill v. Gibbs, Bronson, J., says: "The action is not in the realty merely because it lias some relation to land. Thus, debt for rent and covenant for not re- pairing upon a joint demise are personal actions, and tenants in com- mon must join. So, too, they must join in an action for trespass or nuisance to the land. » • « The English cases say they may, ours that they must, join." § 68. Continued. Light may perhaps be thrown upon the remark of Mr. Taylor by considering that, in the common-law action of debt for rent, al- though there had been a lease by deed, it is not necessary to de- clare on the deed. The plaintiff may do so, or sue for rent in ar- 137 In common law pleadings the liability of a tenant in an action of debt arises from privity of estate. A lessee may be holden upon his covenants, even the covenant to pay rent, after he has assigned the lease and the land- lord has accepted rent from the assignee, for he is liable by privity of con- tract, but the privity of estate is terminated and debt will not lie. Wall v. Hinds, 4 Gray, 256; Fletcher v. McFarlane, 12 Mass. 43; Washb. Real Prop. § ;i32. 138 Section 316. 139 In Wilkinson v. Hall, 1 Bing. N. C. 717. "0 In Deciiel- v. Livingston, 15 Johns. 479. 141 Sherman v. Ballon, 8 Cow. 304; Hill v. Gibbs, 5 Hill, 56; Porter v. Bleiler, 17 Barb. 149, (111) § 68 OF THE ACTION. [PAET I. rear, as upon a parol demise, with perhaps a count for use and occu- pation; and this is an exception to the rule requiring the pleader to count upon the deed upon which the action may be based.^*^ If a tenant in common should sue separately for his proportion of rent, in an action of debt for rent in arrear, or for use and occupation, although the tenant entered under a joint demise, the declaration would not show that fact, and must be good on its face. Could, then, the defendant plead in abatement by showing the instrument and the want of proper parties? If not, the requirement to join, as noted in the preceding section, could be easily evaded; but I do not find the question raised in this form. If, however, the demise has been made by the ancestor, his heirs become technically coparceners, but really tenants in common. Co- parceners need hardly be distinguished from tenants in common; for, in the United States, they are the same.^*^ They no longer take as one heir, as having but a single estate, but each takes his interest in severalty, and, inasmuch as they have not bound themselves by a joint demise, their rights accord with their interests, the accruing rent is apportioned among them,"* and the tenant can be compelled to pay to each his proportionate share.^*^ 1^2 Davis v. Slioemakor, 1 Kawle, 135; Garvey v. Dobyns, 8 Mo. 213; 2 Chit. PI. 430, note u; 1 Selw. N. P. 609. 113 4 Kent, Comm. 367; Tied. Real Prop. § 241; [Bakei- v. Boui'ne, 127 Ind. 466, 26 N. E. 1078; 2 Bl. Comm. 191, note.] "iCole V. Patterson, 25 Wend. 456; Jones v. Felch, 3 Bosw. 63; Crosby V. Loop, 13 111. 625. "5 Copai-eeners, for some pm-poses, are still to make but one heir, to have but one estate and should join in some actions concerning it as in avowry: Stedman v. Bates, 1 Ld. Raym. 64. And in prosecuting an agent for rent received by him upon a lease by the ancestor. Decharms v. Horwood, 10 Bing. 526. But otherwise in actions for rent on demise by the ancestor. Says Coke: "A rent charge is entire and against common right; yet may it be divided between coparceners, and by act in law, the tenant of the land is subject to several distresses and partition may be made before seisin of the rent." Co. Litt. § 241, p. 164b. The California Code of Civil Procedure of 1876 contains the following sec- tion in regard to actions by co-owners of land: "Sec. 384. All persons hold- ing as tenants in common, joint tenants or coparoenei-s, or any numbei- less than all, may jointly or severally commence or defend any civil action or proceeding for the enforcement or protection of the rights of such propei'ty " (112) CU. 1V:J ri.Al.NTIFFS IN ACTIONS EX CONTRACTU. § 70 § 69. Continued — Parties under the Code. So far as these common-law rules are substantial, they are not changed by the Code. The obligation of tenants in common to join in a suit for rent accruing under a joint demise, and their right to sue severally on a demise made by the ancestor, are founded upon reasons the force of which will doubtless continue to be recognized. But under the Code the action would be founded upon the lease, and it may be doubted whether, when the cause of action springs from the violation of a written agreement to pay rent, the complaint or petition can properly count upon a parol demise, or for use and occupation. To permit such pleading would violate more than one provision of the Code. The lease is the starting-point — is one of the facts, and a leading one, which constitute the cause of action; and when the right is based upon a joint lease, and the wrong consists in not complying with its conditions, and the obligation on the part of the pleader is to state the facts which show this right and this wrong, it is difiicult to see upon what principle he could be allowed to count upon a several demise, or upon an implied promise or lia- bility arising from use and occupation.^** Several of the state codes require that the instrument upon which the action is based be filed with the pleading; others, that a copy of the same; and others, that either the original or a copy be so filed; and such instrument or copy must correspond with the pleading which would seem to re- quire that the action be upon the instrument This inference is negatived in Indiana.^*^ § 70. Joinder in Actions by Distributees and Legatees. - Executors and administrators are required to give bond, generally to the state, and conditioned for the faithful discharge of their du- ties, sometimes enumerating them and sometimes in general terms. Whatever the form of the statutory action provided, whether upon 148 This remark cannot, apply to practice in those stntes— as in Missouri (Rev. St. 1879, §§ 3081, 3082), the lease not being by deed— that authorize an action for rent other than upon the express demise. l■t^ See post, § 157, note 3, on page 204 BLISS CODE PL. 8 (.113) § 71 OF THE ACTION. [PAET I. the relation or to the use of the persons interested, or otherwise, the rule as to their joinder is the same as in other cases. If their inter- est be joint, they must join; if it be a common one, they may join."^ By the Missouri statute the executor or administrator is required to make annual settlements, and it is the duty of the Pro- bate Court to order, from time to time, distribution among creditors, or others entitled to the fund. It appearing that there is money in his hands, that there are no creditors, and that he has been removed, it is held that the bond of the administrator may be sued upon the joint relation of all the distributees.^^" In this case all were equally interested in the fund, and the share of each would depend upon the extent of the defalcation, upon the sufficiency of the bond, and the number of distributees. All had an interest in the sub- ject of the action and in the relief demanded, and distribution could not be made unless all were before the court. Under the equity prac- tice, in a bill by distributees, or by residuary legatees, to reach the fund withheld from them, for the same reasons all of the same class should be parties; and where there is uncertainty as to the per- sons bearing the description, or when, being known, they are very numerous, a bUl may be filed by one claimant on behalf of him- self and all others equally entitled.^^" § 71. Parties in Actions concerning the separate Estate of married Women. What has been heretofore said in regard to who should be the Ijroper plaintiff in actions for injuries to the separate estate of married women^^^ applies as well to actions upon contract in re- spect to such property, and especially should the same distinction be made between her separate estate as so made by statute, and pioperty held to her separate use as recognized in equity. 148 As to common interest, see post, §§ 73-76. "0 State V. Tlioi-nton, 50 Mo. 32.5. 150 story, Eq. PI. §§ 104. 105, 304. 1=1 Sections 34-37. (114) t!H. Y.J I'l.AINTlFFS IN EQUITABLE ACTIONS. § 72 CHAPTER V. OP PARTIES TO ACTIONS, CONTINUED. 3. Parties Plaintiff in Actions for equitable Relief, Section 72. General Considerations. 73. Plaintiffs having a common Interest. 7-1. Continued— Legal Claims. 75. Continued— Decisions as to legal Claims. 76. The Principles governing the Joinder. 77. In a legal Action can au umvilUng Plaintiff be made Defendant? 78. Continued— The negative Answer considered. 79. Repres(^ntation — AVhere one may sue or be sued on Behalf of Many— The Rule. 80. Application of the Rule. 81. Representation in Actions to restrain illegal Acts of public Offi- cers. § 73. General Considerations. Special notice of certain statutory provisions as to parties tias been reserved for this chapter, because they are but the statutory enactment of rules of equity pleading, also out of deference to judi- fial opinion in some of the states which seems still to regard them as rules to be enforced only in actions for the relief formerly given in courts of equity. It should be premised that the supposed in- novations by the Code are rules of equity procedure. Thus with the one already considered, requiring the action to be brought in the name of the real party in interest instead of the original obligee or promisee, and with others to be specially noted in this chapter. But the statute does not confine them to any class of actions; they are general in their character, and are applied to all actions; there is now but one form of action and mere formal distinctions between those heretofore called legal and those called equitable are abol- ished. Bearing this in mind, the conclusion is inevitable that these rules apply as well to one class of actions as to the other, unless from their nature such application cannot be made. When not to be so applied, it is not because of the former distinction, but (115) § 73 OP TnE ACTION [part I. because from their character they are inapplicable to actions for the recovery of money or of specific property. It cannot, however, be predicated of any of them that they can never be applied to this class of actions, while it is true of most of them that they are usually appealed to in actions for other than such recovery.^ § 73. Plaintiffs having a common Interest. Of the equity rule that the action must be instituted in the name of the real party in interest, enough has been said; but there are others that should be further considered. "All persons having an interest in the subject of the action, and in obtaining the relief de- manded, may be joined as plaintiffs, except," etc.^ There is a di.s- 1 In speaking in these general terms of the abolition in the code states of all distinctions between actions heretofore called legal and those called equita- ble, I except, of course, the states of Kentucky, Arkansas, Iowa, and Oregon, wliich have adopted the Nev/ York system in most of its features. In these states while the new rules of pleading are applied in the main to both legal and equitable actions, the substantial, and, to some extent, the formal, dis- tinctions between the two are preserved. The United States coui-ts, also, whose districts lie in the code states, make no attempt to abolish the dis- tinction. The act directing the local procedure to be adopted expressly ex- cepts suits in equity, and we still have in those courts the old bill in chan- cery, and with the equity practice as regulated by the rules of court. This exception is said to have been made in deference to that clause of the Fed- eral Constitution which gives jurisdiction in equity to the Federal coui'ts, and because it was supposed that the clause forbade the adoption of so mucli of the Code as seeks to abolish the distinction between the two classes of actions. The propriety of the exception is not a matter to be qnestioucil here, but I fail to appreciate the reason given for it. Under the new pro- cedure the abolition of the distinction between legal and equitable actions goes only to the form, snd not the substance. Every equitable right is rec- ognized, every equitable remedy is given; the cause is still tried by the court or chancellor, and with only such reference to juries or referees, or masters, as accords with the equity practice. The difference is in the pleadings and the submission of evidence, and the reason thus given would seem to imply that the Federal Constitution operates to crystallize the practice followed at the time ot its adoption — at least the chancery practice. 2 See Code references in section CI. [Generally, where persons have a common interest in the subject-matter of the bill, and a right to ask for the same remedy against the same defendants, they may properly be joinetl as plahitiffs. CADIGAN v. BROWN, 120 Mass. (IIG) '■'II- V.J PLAINTIFFS IN EQUITABLE ACTIONS. § 73 tinction between the rule requiring persons united in interest to be joined and the one just given, as the latter does not contemplate a joint interest, nor is the union made imperative. In the cases where it has been sanctioned the interest is called a common one — that is, certain persons are interested in that concerning which the wrong has been done, and will be all benefited by the relief which is sought; they have a common interest, and may join in seeking the relief. Thus, the owners of distinct parcels of property may be interested in being relieved from a nuisance; different creditors may be interested in setting aside a fraudulent conveyance;' and tenants in common, though holding in severalty, may be interested in preventing a trespass. In either case they may unite in an action, notwithstanding the technical common-law rule confining the union to those having a joint interest. The rule, being one which has always been recognized in equity practice, is well illustrated by equity cases. Thus, if the waters of a mill-stream are diverted, or, as in the case cited, if the outlet of a reser\'oir be so managed as to prevent its proper use by the mills below, their several owners may unite in a bill for an injunc- tion,* or they may unite against another several owner to restrain him from using more water than he is entitled to,° and the owners of distinct city lots and improvements may unite in suppressing a nuisance.* So, distinct judgment-creditors are allowed to join in a bill to set aside conveyances made to defraud creditors.'' In these <-ases there is a common interest in the water and in stopping its 494; Murray v. Hay, 1 Baib. Ch. 59; Ballou v. Inhabitants, 4 Gray, 328; First Nat. Bank of Mt. Vernon v. Sarlls, 129 Ind. 201, 28 N. E. 434; OHOTiCH- LLL V. LAUER, 84 Cal. 2.J3, 24 Pac. 107; PETTIBONB v. HAMILTON, 40 Wis. 402, at page 417; Upington v. Oviatt, 24 Ohio St. 232; Atchison St, Ry. Co. V. Nave, 38 Kan. 744, 17 Pac. 587; Hammond v. Hudson River Iron & Mach. Co., 20 Barb. 378.] " [See Rev. St. Ohio, § 6344; Edmeston v. Lyde, 1 Paige, 637; Brownson V. Gifford, 8 How. Pr. 389.] •1 Bellinap v. Trimble, 3 Paige, 577. Contra, Sclmltz v. Winter, 7 Nev. 130. 5 Emery v. Erslvine, 06 Barb. 9. « Pecli V. Elder, 3 Sandf. 126; Tate v. Ohio & M. It. Co., 10 Ind. 174. 7 Brinkerhoff v. Brown, 6 Johns. Ch. 130; Dix v. Briggs, 9 Paige, 595; Gates V. Boomer, 17 Wis. 455; Morton v. Weil, 33 Bai-b. 30; Wall v. Fairley, 73 N. C. 464. Proceedings to set aside sales made in fraud of creditors by a (117) § 74 OF THE ACTION. [ AET I. diversion, in removing or suppressing tlie subject-matter of the nui- sance, and in appropriating the property fraudulently conveyed." In California a contract to sell land had been assigned to two persons by distinct parcels to each, and they were allowed to join in an action for its specific performance;" and in the same state the sev- eral holders of distinct mechanic liens may join in an action to es- tablish and enforce them." § 74. Continued — Legal Claims. The cases cited in the preceding section were of an equitable nature, and could be greatly multiplied. No doubt is expressed as to the propriety, in this class of cases, of uniting as plaintiffs those who have a common, though not a joint, interest. But, upon prin- ciple, this union cannot be confined to suits for equitable relief, pro- vided in other actions the common wrong can be redressed and the respective rights be adjusted. It shocks the prejudices of common-law pleaders to speak of a union of plaintiffs where there is not a joint interest; and, such is the effect of legal education and long habits of thinking, that, what seems so natural in a proceeding to prevent a common injury, or to set aside a sale for the benefit of common creditors, or to subject to their respective claims the assets of an estate, seems deceased debtor may, in some of the states, be instituted by his personal representative, especiallj' if the estate is insolvent, as being under obligation to convert into assets for the ijayment of debts everything that can be reached; while in others, such representative is held to be bound by the acts of de- cedent, and the proceeding caia be instituted only by the creditors them- selves. Merry v. Fremon, 44 Mo. 51S. 8 [But in an action for damages resulting from this common injury or nui- sance they must sue severally. Ballou v. Inhabitants, 4 Gray, 328; Foreman V. Boyle, 88 Cal. 290, 26 Pac. 94; Palmer v. AVaddell, 22 Kan. 352.] 3 Owen V. Frink, 24 Cal. 171. The plaintiffs in tliis case were interested in the land which was the subject-matter of the contract, though not jointly or in common. But for the rule against splitting causes of action, either assignee might have sued alone, and the joinder is rather in the interest of the defendant, to protect him from the costs of two actions, when he has made but one contract. 10 Bai'ber v. Reynolds, 33 Cal. 497. Aliter in Kansas, Harsh v. Mo: gau, 1 Kan. 293. '-'"• ^'■] PLAINTIFFS IN EQUITABLE ACTIONS. § 7-{ almost impossible, In case a smn of money is sought to be rccovcicd in wliich sundry persons have a several, and perhaps unequal, in- terest. But it has come to be generally conceded that the rule is universal in its application, as it is in its terms; and if two or more are inter- ested in the subject of the action, and in the relief sought, they may unite as plaintiffs for the recovery of money, or of specific real or personal property. The objection to the union springs from the diffi- culty in common-law actions in adjusting the rights of the plaintiffs as between themselves. In such actions this cannot be done; but the Code removes the objection by adopting anothi'i- rule of equity practice, to wit: "Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may determine the ultimate rights of the parties on each side as between themselves; and it may grant to the defend- ant any affirmative relief to which he may be entitled." ^^ Notwithstanding this rule, it is said, and with apparent reason, that such adjustment is difficult, and sometimes impossible, in jut y trials. But the suggestion supposes that the several rights will al- ways be ascertained by the verdict. While in many cases this may be done, and must be done when the extent of the liability depends upon the amount of each of the several claims, yet in other cases, the verdict need only find the fact of the defendant's liability, and its amount, leaving the adjustment among the plaintiffs to be made by themselves after judgment, or by the court before it is entered.^- 11 Code Proc. N. Y. § 274 (Code Civ. Proc. 1876, •§ 1204); Wag. St. Mo. p. 1051, § 2 (Kev. St. 1879, § .8673); Code Civ. Proc. Cal. 1876, § 578. except last clause; Comp. Laws Nev. 1873, '§ 1209, like California; St. at Large Miim. 1873, c. 41, § 185, like California; Code Civ. Proc. Ind. § 368 (Rev. St. 1881, g 568); Code Proc. Ohio, § 371 (Rev. St. 1880, § 5311); Rev. St. Wis. 1871, c. 1.32, § 29 (Rev. St. 1878, § 2883), omitting tirst line; Code Civ. Proc. Kan. § 396; Code Civ. Proc. Neb. § 429; Code Civ. Proc. N. O. § 248 (Code Civ. Proc. N. C. 1883, § 424); Code Proc. S. C. § 298; Code Civ. Proc. Colo. § 145 (Code Civ. Proc. Colo. 1883, •§ 199); Conn. Pr. Act, Rule 8, § 7; Mansf. Dig. Ark. § 5104, as to first clause. 12 Upon this power to adjust ditferent rights, see School Dist. v. Edwards, 46 Wis. 150 [49 N. W. 968]; Seymour v. Carpenter, 51 Wis. 413 [8 N. W. 251]. (119) § 75 OF THE ACTION. [PAKT I. § 75. Continued — Decisions as to legal Claims. Most of the cases in which the right is discussed to unite, in law as in equity, parties whose demands are not joint, sustain the union. The case of Loomis v. Brown," came early into the Supreme Court of JSTew York, and the opinion there given at general term has been since adhered to. Says the court, per Gridley, J., after having recited the statute: "This is now the rule in all cases, whether such as were formerly the subject of suits in equity or of actions at law, and we are to administer it according to its spirit and true intent, how- ever the practice may differ from the rule that heretofore has pre- vailed in actions at law. It is only necessary to admit the fact that the rule prescribed by the Code is applicable to all suits, and thus consider the identity of the rule the Code has adopted for the joinder of plaintiffs with the rule as it prevailed in equity, to be convinced that we are now to hold the same rule applicable to both. * • « We think that it was the manifest intention of the legislature to make a change in relation to parties to suits at law, and to assimilate the practice in that respect to the practice that had before prevailed in courts of equity." ^* The Supreme Court of Ohio^^ went further than this, and sus- tained an action upon an attachment bond, not only in the name of its obligees, but also of other creditors who had sued out attachments after the bond was given. They all had interest in the property at- tached, which, by the condition of the bond the debtor was required to produce to the sheriff, and they were suffered to unite as plain- tiffs, notwithstanding their claims were unequal and were affected hj the rule of priority. The Supreme Court of Indiana recognizes 18 16 Barb. 325. 14 The action had been brought upon an injunction bond given to the plain- tiffs upon obtaining an injunction forbidding them from floating saw-logs over defendant's milldam. The damages suffered by the different plaintiffs from the Injunction were unequal, and upon that ground it was urged that they could not join in the action. The court passed by the fact that the covenant of the bond was joint in form, and based its decision upon the fact that tliey all had an interest in the subject of the action, without even a joint, or equal, "or even a common, interest." 16 Eutledge v. Corbin, 10 Ohio St. 47a (120) <^^- v.] PLAINTIFFS IN EQUITABLE ACTIONS. § 76 the application of the rule as well to actions fonnerly called legal as to those called equitable, and treats it as but an application to all actions of an old rule of equity practice," and that of Wisconsin sustains the union of parties who have distinct interests in the same property, in an action for injuries to such property." On the other hand the Court of Appeals of Kentucky^' and the Supreme Court of lowa^^ will not allow a joinder for the recovery of money where the interests of the plaintiffs are distinct. § 76. The Principle governing the Joinder. This permissive union of parties is limited by the terms of the rule. All who would unite must be interested in the subject of the action and in the relief. It may not be possible to define with abso- lute precision the phrase "subject of the action," which is used in different parts of the Code, but we may say, in general, that it is the matter or thing concerning which the action is brought;^" and though one may be interested in that matter, unless he is also inter- ested in the relief which is sought by another, he is not permitted to unite with him. Thus, to take the cases which have been cited, two or more owners 18 Tate v. Ohio & M. R. Co., 10 Ind. 174; Goodniglit v. Goar, 30 Ind. 418. IT In Schiffer v. Eau Claire, 51 Wis. 383 [8 N. W. 233], and In Seymonr v. Carpenter, 51 Wis. 414 [8 N. W. 251], the owners of distinct estates in the same land were suffei'ed to unite in one action for damages arising from the destruction of the propertj', without I'egard to the proportion of the damages recovered to which each was entitled. 18 In Pally v. Bowyer, 7 Bush, 513. The action was by certain distributees who were entitled, collectively, to one-third of the fund in the hands of the defendant, administrator, and was brought upon his oflGlcial bond. The opinion admits that, in equity, several distributees might unite in an action for the settlement of the estate, but, quoting section 36 (now 24), Civ. Code Pr., that provides for the union of all who are united in interest, holds that those who have distinct and independent rights of action cannot join in a suit upon the bond. The court did not notice section 34 (now 22), providing for the joinder of all persons having an interest in the subject of the ac- tion, etc. 10 In Independent School Dist. of Graham Tp. v. Independent School Dist. No. 2, 50 Iowa, 322. 20 See post, § 126. (121) § 77 OF THE ACTION. [PAKT I. of mills propelled by water are interested in preventing an obstruc tion above that shall interfere with the down-flow of the water, and may unite to restrain or abate it as a nuisance; but they cannot hence unite in an action for damages, for, as to the injury suffered, there is no community of interest. There is no more a common in- terest than though a carrier had, at one time, carelessly destroyed property belonging to different persons, or the lives of different pas- sengers. The abatement or pretention of the nuisance involves but a single judgment, in obtaining which all the mill-owners are inter- ested, and by which they are all benefited; but to enable them to unite in an action for their several damages, there must be some connection — something in which they have a common interest. We have seen that different persons who are interested in an injunction bond, or in an attachment bond, though their interests are several and une- qual, have been permitted to unite in an action upon the bond. Their common interest in the bond, in the matter concerning which the bond was given, and in the defendant's liability upon it, their right to prorate in dividing the amount recovered, if there is not enough for all, make it proper that the extent of that liability be ascertained at once, with the respective interests of those for whose benefit it was given. § 77. In a legal Action can an umvilling Plaintiff be made Defendant ? By an unwilling plaintiff is meant one who possesses a joint right, and who, at common law is a necessary co-plaintiff, but who refuses to prosecute. To meet such a case we have the following section of the code: "Of the parties to the action, those who are united in in- terest must be joined as plaintiffs or defendants; but if the consent of any who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the petition" (complaint).^! The first clause states a universal rule both in law and equity pleadings, except as modified in special cases by 21 [See Code Civ. Proc. N. Y. § 448; Rev. St. Oliio, § 5007; Rev. St. Ind. § 269; Code Civ. Proc. Gal. § 382; Code Civ. Proc. Colo. § 12; Gen. St. Kan. par 4114; Consol. St Neb. § 4575; Rev. St. Wis. § 2604; Code Iowa. § 3753; Rev. St. Mo. § 1994; Gen. St. Nev. § 303G; Comp. Laws N. D. § 4879; Comp' a 22) CH. V.J PLAINTIFFS IN EQUITABLE ACTIONS. § 77 statute, that those who have a joint interest in a demand must join in its prosecution; and those who have incurred a joint liability must be made defendants; in each case the demand is a single one. The joinder of such plaintiffs in ordinan- actions has been already spoken of,^^ and in the present connection the provision in regard to unwilling plaintiffs will be alone considered. This provision for making defendants of such plaintiffs was for- merly known only in equity pleadings, and some of our courts have refused, under the new system, to extend its operation to. actions formerly called legal. The Supreme Court of Missouri, in two early cases,''^ held that this clause would not apply to an action for the recovery of money due to joint obligees, for the reason that it would change the rights of the parties.-' In a recent case, however, in Missouri,-" the court, in an action of ejectment, intimates, though that was not the point decide^, that one of the several trustees who refused to join as plaintiff might be made defendant. In California it has been held that the clause under consideration applies only to Laws S. D. § 4S79; Rev. St. Wyo. § 2396; Mansf. Dig. Ark. § 4941; Gen. St Conn. § 883; Contee v. Dawson, 2 Bland, 264^292; Fawkes v. Pratt, 1 P. Wms. 593.] 22 Ante, §§ 61, 63. See citation of statutes in section 61. 23 Clark V. Cable, 21 Mo. 223, and Rainey v. Smizer, 28 Mo. 310. [But the rule of these cases has been changed by later statutory enactments. See Rev. St. Mo. 1889, § 1994.] 2-1 In CLARK v. CABLE, Scott, J., says: "One of the joint obligees, with- out the concurrence of the other, cannot maintain an action upon a joint con- tract. Unless both agree, there can be no action upon it. The repudiation of the contract by one of them discharges the obligor. One of two joint obligees can release a joint obligation. * * * This rule of law, therefore, cannot be aftected, nor the obligor deprived of the benefit of it, by bringing suit in the name of one joint obligee and making the other a defendant." In Rainey v. Smizer, the same judge says: "It vas never intended that it (the clause) sliould affect the rights of parties aiising out of written contracts. Nothing is better settled than the rule that on an undertaking to two, both must join in an action on It; otherwise there is no cause of action. It is a part of the contract that both shall sue; otherwise, no action shall be brought." This reasoning is specious, but is unsound. It is not true that there is no cause of action unless both join — only a defect of parties in an obsolete form of action; nor is it true that the remedy forms part of the con- tract. [See dissenting opinion of Winslow, J., in Kyan v. Riddle, 78 Mo. 521.] 25 McAllen v. Woodlock, 60 Mo. 174. (123) § 78 OF THE ACTION. [PAKT 1. actions for equitable relief.^' On the other hand, the Supreme Court of Indiana holds that one may sue for, and recover his share of a sum of money due to him and another jointly, by making his co-obligee defendant if he refuses to unite as plaintiff." In an action in the Superior Court of New York City,^^ it appeared that the plain- tiffs and other owners of a steamboat had leased it to defendants, and, the action being to recover their proportion of the rent, it was held that the contract was single; that only a single cause of action had accrued which could not be split into several; that the other owners should have been joined as plaintiffs, or, if they refused to join, they should have been made defendants, the refusal being stated. § 78. Continued — The negative Ans\rer considered. It is said that to authorize one of two or more joint promisees to bring an action, against the will of the others, would change rights on the one side and obligations on the other — that is, that it would authorize one to sue alone when there is no promise to him alone, when he has acquired a right only in connection with others; that, in other words, it converts a joint into a several right whenever those who possess it disagree as to its enforcement. But no new right, in fact — that is, no new interest — is created. If the joint promisees are trustees, the fund can be recovered only for the benefit of the beneficiary; if they are partners, it must go to the partnership fund; and if they have each a right to an aliquot part of the sum due, they wiU be permitted to recover only that part. The liability is not a whit increased. When the debt is due, it should be paid, and the debtor owes it all the same, although one of the creditors may be willing to wait, or what is more likely, may be in collusion with him. 26 Andrews v. Mokelumne HUl Co., 7 Cal. 330. The California Supreme Court lias modified some of its early decisions which gave a rather limited construction to the Code, but I do not find that it has receded from this posi- tion. 27 Hill V. Marsh, 46 Ind. 218. In this case the right to make one of several promisees defendant seems to be conceded, the reason for so doing is the refusal to join, not the grounds for such refusal. Wall v. Galvin, 80 Ind. 447. 28 Coster V. New York & E. R. Co., 6 Duer, 43, 3 Abb. Pr. 332. (124) CH. v.] PLAINTIFFS IN EQUITABLE ACTIONS. § 78 Under the differing iiiles of practice at law and in equity, it may happen that parties who have both legal and equitable rights un- der a contract will hs prevented from enforcing the former. Thus, two or more purchase land by contract, and the vendor refuses to convey. The purchasers have a claim for damages, but the con- tract is to them jointly, and none can bring suit unless aU unite. If, however, one or more less than the whole desire a speciiic per- formance, he or they can present the bill and make a defendant of the unwilling plaintiff; so that the same contract will be enforced in one court on behalf of part of th3 obligees, while its enforcement in another can be blocked by any one of them. Equity neither makes nor impairs substantial rights, and, in giving new and more complete remedies, it creates no new liabilities. In vindicates ac- knowledged rights and enforces acknowledged liabilities, untram- meled by the technicalities and fictions of common-law practice, and vindicates and enforces them more completely than can be done un- der that practice. The adoption, then, of the equity rule g02S only to the remedy. Further, joint rights so called are usually joint in form only. A promise to trustees is in fact as well as form made to them jointly— the representative of a deceased co-trustee has no personal interest; but in ordinary contracts every promisee has an individual inter- est in it, when one dies, his proper representative succeeds to that interest, and the survivors who can alone sue at common law, re- cover for his use as well as their own. Survivorship to the right to enjoy is an incident to a right joint in fact — as, a Joint tenancy in the realty. The idea that the co-obligees of a contract had a joint, a single interest, with the legal incidents of joint ownership, had, long before our day, come to be a mere fiction, and the consequent rule of pleading, a mere torm,^^ and it is one of the prime offices of the code to abolish fictions and mere forms. It is also urged that to permit a part of the owners of a joint right to bring an action, would subject the defendant to more than one action upon the same contract, and this was the reason given by the common-law judges for requiring that all should join. This is also the reason why courts of equity demand that all who are 20 See ante, §§ 61-G3. (125) § 79 OF THE ACTION. [pART I. united in interest should be made defendants if they refuse to join as plaintiffs. Once before the court, any binding decree can be mads which is warranted by the facts and in reference to all the parties. That the machinery of common-law trials furnishes no way for securing the rights of all co-obligees, unless they join in the action, is the only rational reason why this rule should not pre- vail in such trials; those only are made defendants against whom a verdict or judgment is sought. But the Ctode, as shown in a pre- ceding section,'"' gives all the powers in respect to the judgment held by courts of equity. § 79. Kepresentation — When one may sue or be sued on Behalf of Many— The Rule. The following equity rule is also found in the codes : "When the question is one of common or general interest of many psrsons, or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole." ^^ This rule is in harmony with the requirement that all the parties plaintiff must have a joint or com- mon interest, and the interest of the parties represented must ap- pear to be such as to entitle them, were they all before the court, to maintain the action in their own names.^^ It is, therefore, simply a rule of convenience,^^ and, though pertaining, like other general rules, to all causes to which it is applicable, yet in practice it wUl seldom be appealed to except in actions heretofore called equitable. Mr. Story *** classifies the cases where it is applied in equity prac- tice under three heads: "First, where the question is one of a com 30 Section 74, ante. 31 Code Civ. Froc. N. Y. § 448; Rev. St. Ohio, § 5008; Rev. St. Ind. § 269; Code Iowa, § 3754; Code Civ. Proc. Mont. § 19; Gen. St. Kan. par. 4115; Rev. St. Wis. § 2604; Consol. St. Neb. § 4576; Code Civ. Proc. Cal. § 382; Code Civ. Proc. Colo. § 12; Civ. Code Ky. § 25; Gen. St. Nev. § 3030; Comp. Laws N. D. § 4879; Comp. Laws S. D. § 4879; Comp. Laws Utah, § 3184; Code Or. ■§ 385. In Missouri the rule is recognized, though not embodied in its Code of Procedure. 32 Habicht V. Pemberton, 4 Sandf. 057. 33 Kirk V. Young, 2 Abb. Pr. 453. SI StoiT, Eq. PI. § 97. (120) CH. v.] PLA]^'TIFFS IN EQUITABLE ACTIONS. § 80 mon or general interest, and one or more sue or defend for the ben- efit of tlie wliole; second, wliere tlie parties form a voluntary as- sociation for public or private purposes, and those who sue or defend may fairly be presumed to represent the rights and interests of the ^^•hole,• third, where the parties are very numerous, and altliough they have, or may have, separate and distinct interests, yet it is impracticable to bring them all before the court." These three classes are included in the two named in the statute. § 80. Continued — Application of the Rule. Mr. Story,'° shows at some length the application of the rule •as made in the courts of equity, and those who would thoroughly understand the subject should consult the distinguished author, and the cases cited by him and by the learned editor of a late edition of his work upon equity pleadings.'"' A few illustrations will here sufiice. A part of a prize-crew, on behalf of themselves and the rest of the crew, were permitted to bring suit for an account against the prize- agents;^' creditors on behalf of themselves and other creditors may bring suit to compel an accounting by the personal representa tives of the deceased debtor;"* and so may legatees and distribu- 35 story, Eq. PI. §§ 9S-13.3c. so Story, Eq. PI. (Rcdf. 8th Ed.) ■§§ 98-135C. "' Story, Eq. PI. § 98, and cases cited. 38 story, Eq. PI. § 09 et seq.; Story, Eq. Jur. §§ .'i47, 548. This proceeding is seldom resorted to in the United States; for the reason that the several States have provided a more speedy and convenient mode of effecting the object. Still, equity jurisdiction is generally recognized. In Rogers v. King, 8 Paige, 211, the chancellor says that "the surrogate has concmTent jurisdic- tion with this court to call an executor or administi-ator to account. * * * And where, in a suit properly initiated in this court by any other creditor, legatee, or distributee of the estate, a decree for an account has been entered for all the creditors and other persons interested in the estate, such decree may be set up as a bar to any proceeding for an account before the surrogate." In Ohio there seems to be some contradiction in the cases. The jurisdiction of courts of equity is sustained in Grosvenor v. Austin, 6 Ohio, 104; in Armstrong v. Miller, Id. 118; in Piatt v. St. Clair, Id. 227; and in Stiver v. Stiver, 8 Ohio, 217; and is denied in McDonald v. Aten, 1 Ohio St. 293, unless there are other grounds of jurisdiction, like fraud, etc. The change may (127) § 80 OF THE ACTIOxN. [PART I. tees.^» It may be that the rights of parties thus represented have not been fully protected by the decree; in that case, though the executor or administrator will be exonerated, they will still have the right to assert their claim against those who have received more than their share." The members, when numerous, of a joint- stock company, or of a voluntary business or benevolent associa- tion, may be represented by a few of their number in an action against the oificers or managers for mismanagement or diversion ; *^ and where the shareholders of a corporation, if the proper officers re- fuse to act, or are in collusion with those who would despoil the company, have a right of action, a part may thus represent the have been tlie result of intervening legislation. The Supreme Ckiurt of In- diana, at an early day, acknowledged the English equity jurisdiction, holding in Martin v. Densford, 3 Blackf. 295, that, "where a debtor is dead, courts of equity have concurrent jurisdiction with courts of law— the creditor may elect into which court he will go." See, also, Thorn v. Tyler, Id. 504, and Bryer v. Chase, 8 Blackf. 508. In Missouri, exclusive jurisdiction is given to probate courts in certain things, but the Circuit Court retains such equity jurisdiction as is consistent with that given the probate courts, and will exercise all the powers of courts of equity in the settlement of estates, where it is not exclusively given to such courts. Miller v. Woodward, 8 Mo. 169; Clark V. Henry, 9 Mo. 339; Overton v. McFarland, 15 Mo. 312. In Kentucky, equity jurisdiction is fully recognized. Jackson v. Robinett's Heirs, 2 Bibb, 292; Tanner v. Davidson, 3 Bibb, 456; Prewett's Ex'r v. Prewett's Heirs, 4 Bibb, 266; Stroud's Heirs v. Barnett, 3 Dana, 392; PiUilngton's Ex'r v. Gaunt's Adm'x, 5 Dana, 410. It is not necessary that the action be by, or on behalf of, aU the creditors. Any creditor or legatee may sue, and if the executor or administrator admits sufficient assets, he will be entitled to a decree for his particular debt or legacy. Hallett v. Hallett, 2 Paige, 18. In case, however, there is a deficiency of assets, all actions, if there are more than one, must be consolidated— all other creditors or legatees must be made parties, or, if there are so many as to bring the case within the rule, the peti- tioners must represent themselves and all others holding a similar relation to the estate. Hallett v. Hallett, supra; Egberts v. Wood, 3 Paige, 520. 39 Story, Eq. PI. § 99 et seq. ; McKenzie v. L' Amoreux, 11 Barb. 516. *o Story, Eq. PI. § 106, and note 1. This difficulty as to creditors will hardly arise in those States that have established the brief limitation of one, two or three years to demands against estates of deceased persons and have re- quired that, within the particular period, they be put in suit, or be presented to the executor or administrator for allowance; and if rejected, that forth- with, or within a brief period, tliey be prosecuted. 41 Story, Eq. Pi. §■§ 107-119. (128) <-"H- V.J PLAINTIFFS IN EQUITABLE ACTIOiNS. § 80 ■whole, or may on behalf of themselves and the other stockholders, sue the directors for negligence and misconduct.^^ Tax-payers, where all hare such a common interest as to be permitted to unite in an action may be represented by a few of their number, although there is diversity of opinion as to whether owners of distinct par- cels of land can unite to prevent the assessment and collection of an illegal tax.*^ There are many things in which tax-payers, as *2 Smith V. Ratlibun, 66 Bai-b. 402. 43 MATHEXY V. GOLDEN, 5 OWo St. 301, was a proceeding in the name of a tax-payer, on behalf of himself and others, who owned distinct parcels of land, to restrain an illegal assessment, and the form of the action was sustained, although without comment. Glenn v. Waddel, 23 Ohio St. 005, and Upington t. Oviatt, 24 Ohio St. 282, were similar actions, and the joinder was sustained in both cases— Stone, ,T., dissenting upon this question. The Supreme Court of Illinois, in Harward v. St. Clair & M. L. & Drainage Co., 51 111. 130, which was a bill filed by the owners of distinct parcels of property to restrain the collection of illegal taxes, says: "The objection that the bill is multifarious is not well taken. The complainants have a common inter- est in the subject-matter of the suit. They asli the same relief against the same injury, upon the same grounds. To compel each one to file a separate biU would lead to a multiplication of suits wholly vmuecessary." Elsewhere a different view is taken. In Howell v. City of Buffalo, 2 Abb. Dec. 412, the complaint asked for an injunction to restrain the collection of an illegal assessment of taxes upon lands belonging severally to the plaintiff, and others for whom he sued, and who afterwards came in and were made plaintiffs; and while the court held that the injunction should not issue, inasmuch as certiorari to the proceedings of the city authorities was the true remedy, it also treated the union of the plaintiffs as improper, because they had no common interest in the subject of the action, which is the land upon which the tax was assessed. In the United States Circuit Court of New York, Nel.son, J., held (Cutting v. Gilbert, 5 Blatchf. 2.j9 [Fed. Cas. No. 3,519]) that certiiln brokers, for themselves and others, could not unite in a bill to restrain the assessment and collection of a United States tax, giving as a reason that their common Interest was only in the question involved. He calls it a bill of peace, and says that the interest should be not only "in the question, but one in common in the subject-matter of the suit." Newcomb v. Horton, 18 Wis. 560, was a complaint by the plaintiff, for himself and others, separate owners of land in a certain school district asking for an injunction against the collection of judgments for school taxes fraudulently obtained. The joinder of the plaintiffs was held to be improper, because there was no com- mon or general interest. But in Peck v. School Dist., 21 Wis. 516, where the complaint sought to vacate an illegal tax-list and levy, alleging that a certain BLLSS CODE PL. 9 (129) § 80 OF THE ACTION. [PAET I. such, are interested besides the direct assessment and collection of taxes. The ofiScers of towns, counties, and other political or- ganizations sometimes improperly create debts or impose burdens that will result in increased taxation. In such case there is no direct assessment or attempt at collection — only an illegal act that creates a necessity for a future assessment; and the courts are not agreed as to who is the proper party plaintiff in an attempt to restrain such act. The general question, in its application to public nuisances, usurpation of powers, etc., will be presently considered, and it will be then seen that some courts group together all matters of a public nature, giving the State alone a right of action in regard to them, and denying the right of a private citizen or tax-payer to sue unless he suffers a special personal injury over and above his neigh- ■contract entered into by the school district was illegal and void, the court held that all the plaintifEs, being separate owners of the property taxed, had a com- mon Interest in annulling the contract; and the court, having acquired juris- diction for that purpose, would enjoin the collection of taxes which that con- tract had rendered necessary. The question has been before the Supreme -Court of Iowa, and in the case reported (Fleming v. Mershon, 36 Iowa, 414) the majority of the court do not seem to have concurred in either view. Justice Miller holds the union improper; Justice Beck concurs in the judgment, but neither agrees to nor dissents from, this opinion; while Justice Cole dissents, liolding that the union was proper in equity, and is more so under the Code, which requires that all its rules shall be construed liberally. In these cases where the general tax is sought to be set aside because of the illegality of the tax itself, the subject of the action is the tax, the general order for levying it. The wrong consists in the violation of the law, aU the property subject to taxation will be afEected by the order, and that gives the several plaintiffs their common interest. But the judgment sought will say nothing about the property, nor about any special assessment, will vacate only the general as- sessment whomever it may afCect. But if the illegaUty concerned the im- position of the tax upon individuals, as of a poll tax upon persons exempt from age or other cause, or, if it concerned the improper valuation of prop- erty or if it charged that which is exempt from taxation, or, if the illegality arises from any other personal reason which may not or which may apply to all, then there is not either a joint or a common interest in the subject of the action. The tax itself is not illegal, only its imposition in particular cases, and that is personal. The subject of the action is personal, is several; the relief sought cannot be general and there is no warrant for the union. This difference may explain the differing views held on the subject. (130) CH- v.] PI.AINT1FFS IN EQUITABLE ACTIONS. § 81 bors. other courts make it a private matter merely, and others seem to distinguish between such illegal acts as will necessarily result in increased taxation and those that may not have that effect, making the former both a public and private wrong, and the latter a public one merely. In this connection it is only necessary to say that where citizens or tax-payers are authorized to sue, they should be permitted to unite, and by representation. No court would require each tax-payer to institute a separate proceeding where all are interested in the subject of the action. § 81. Representation in Actions to restrain illegal Acts of public Corporations." The right of a few tax-payers, or a few citizens, as the case may be, either personally or on behalf of themselves and other tax-payers and citizens equally affected, to ask the interposition of the court — as, by injunction — to prevent the perpetration of a public wrong, has been both affirmed and denied. As heretofore stated, the right of certain persons, or a class of persons, to unite in the action, and the right of one to appear for himself and others, depend upon the same rule, as to who are proper parties ; for the rule permitting one to sue for himself and others is but a rule of convenience, where a class of persons may or must be parties plaintiff, but where it is impracticable for all to come before the court. It becomes necessary, then, to inquire when the action may or must be brought by the tax-payers or citizens, and when the State alone is authorized to bring it. An examination of the numerous cases, will, I think, authorize the following conclusions, although all are not consistent with these conclusious or with each other. Where the injury to be prevented or abated is public merely — that *i [See necessary allegations in an action to abate a nuisance. Ohio, etc., Ry. Co. v. Simon, 40 Ind. 278. [Generally, a petition to remove or abate a nuisance should contain: [1st. The location of the property, the possession of which is injured, and its possession by plaintiff et al., etc. [2d. The nature of the nuisance, i e. that on the day of the defendant erected a slaughterhouse on (describing certain property), and causes cattle, sheep, and other animals to be slaughtered there. [3d. The nature and extent of the injury. [4th. Add appropriate prayer.] (1.31) § 81 OF THE ACTION. [PAUT I. is, where no citizen suffers a personal injury — it is a public matter, and the representative of the State is alone empowered to bring^ the action. This rule is applied to public nuisances where private property is not affected. ''^ The rule is applied to actions brought to restrain county, town,^ or city authorities from the abuse of powers, or from exercising un- authorized powers.*'' The gist of the action being the abuse or usurpation of power by those who owe all their authority to the State, the right of the State to sue would not, upon principle, depend upon the presence or absence of a resulting private injury, although without such injury such right would be exclusive. There can be no private right of action without a private injury.*^ Where, however, an individual personally suffers from a nuisance,** or suffers, or is likely to suffer, from the abuse or usurpation of power by the officers of a municipal body, he has a right of action. There is no dispute as to the right, but it is not always clear whether,, in a particular case, there is a personal, aside from the public, in- 45 City of Georgetown v. Alexandria Canal Co., 12 Pet. 91; Bigelow v.- Hartford Bridge Co., 14 Conn. 565; Sparhawk v. Union Passenger Ey.. Co., 54 Pa. St. 401; Attorney-General v. Forbes, 2 llylne & C. 123. [An injunction to remove or abate a public nuisance will not issue on behalf of a private person unless he shows in his petition or application that he- does and will sustain some special damage, distinct from that of the publie at large. Pettis v. Johnson, 56 Ind. 1.39; Bigelow v. Hartford Bridge Co.,. 14 Conn. 565.] *6 Davis V. Mayor, etc., of New York, 2 Duer, 663; Doolittle v. Supervisors, 18 N. Y. 155; Roosevelt v. Draper, 23 N. Y. 318; State v. Saline Co. Ct. 51 Mo. 350. In an able and exhaustive opinion by Shepley, special judge, in State V. Saline Co. Ct., he reviews the English cases, and places the right of the State to bring the action in that case, not only upon the ground that the injury would be a publie one, but upon its duty to govern the subjects of its own creation. He says, in reference to those cases: "In none of these decisions is there the slightest hesitation in placing the jurisdiction upon the broad ground that the State had the right, in this form of proceeding, to restrain all corporations, public and private, from the abuse of powers granted, or from exercising those not granted." 47 See cases cited, and Smith v. Houston, 6 Ohio, 101; Brown v. Manning, Id. 298; Miller v. Grandy, 13 Mich. 540; Craft v. Jackson Co., 5 Kan. 518. There are many other cases, some of which are adverse to the doctrine of the text. I only give what seem to me to be sustained by principle. 48 Same cases, and t^pcncer v. London & B. R. Co., 8 Sim. 193; Corning v. Lowerre, 6 Johns. Ch. 43U. (1-2) ■CH. v.] PLAINTIFFS IN EQUITABLE ACTIONS. § 81 jury. Denio, J., in Doolittle v. Supervisors, speaks of a liability to increased taxation affecting all tax-payers equally as a public matter, and holds that such liability furnishes no ground for a pri- vate action. In that case the liability, if any were created, was re- mote and contingent; but where the action sought to be restrained is the illegal creation of a public debt, fastening a charge upon all the taxable property of a district, involving necessarily an increased taxation, does not every owner of taxable property, suffer a wrong? There is an abuse or usurpation of power by public officers which should authorize the State to interfere, and there is also a private wrong from which those who are about to suffer should be permit- led to protect themselves.^" The confusion in the cases may have arisen from not considering this double aspect of the question. "VMien the private citizen is permitted to bring his action to pro- tect his private right, he may unite with him all others who are similarly situated, proA'ided they are all interested, in the subject of the action. Are they so interested when seeking to restrain such official misconduct, as wUl necessarily charge upon them a public debt? We saw in the last section, and in the cases cited in the note that some of the courts have held that tax-payers can- not unite to prevent the collection of an illegal tax, for the technical reason that the subject of the action is the property charged with the tax, in which they have no common interest, the collection being the wrong, and its prevention being the object of the suit.^" But in the case we are now considering, the same objection to the union does not lie. The object of the suit is, not to prevent the assessment of a tax upon the plaintiff's property, but the creation -of a debt that must become a charge upon it. The wrong to be prevented is the creation of this debt — perhaps by the issuing of bonds; the object is to prevent their issue; the subject, then, is the debt, the bonds and their consideration, in which all have a common interest. The tax-payers are all interested in the sub- ject of the action and in the relief, and, being too numerous to be .all made parties must appear by representation. iB In state r. Saline Co. Ct., 51 Mo., on page 386, the author briefly indicated this view. 50 See the distinction made in the note between the collection of the tax and the illegal assessment. (133) § 82 OF THE ACTION. [PAUX I. CHAPTER VI. PARTIES TO ACTIONS, CONTINUED. 4. Defendants in Actions founded upon Torts. Section 82. As to Injuries by more than one— Tlie Common-Law Rule adopt- ed as to who may be made Defendants in Actions ex delicto. 83. Instances of Liability, several only. 83a. Instances of joint Liability.. 84. Slander necessarily single. 85. Injuries by the Wife— Liability for her Torts. 8G. As to Torts by the Wife in respect to her separate Estate- General Rule. 87. Liability as owners of Land arising from a duty— A different rule in case of Tort. 88. Several Liability— Its Extent. 89. Indemnity and Contribution— The General Rule. § 83. As to Injuries by more than one — The Common-Law Rule adopted as to who may be made Defendants in Actions ex delicto. The question as to what facts create a liability in this. class of actions belongs to the law of liability, and will be noticed only incidentally. But when the liability of some one is conceded, it is within the scope of this treatise to inquire who may be sued, and the inquiry becomes chiefly important when the wrong has been done by more than one. As to torts which from their nature can be committed by more than one person, the rule is that all concerned in inflicting the injury are individually guilty, though their com- bination in the act enables the sufferer to unite them in the action, or any portion of them, if he sees fit. Chitty says,^ that "if several persons jointly commit a tort, the plaintiff, in general, has his election to sue all or some of the parties jointly, or one of them separately, because a tort is in its nature a separate act of each individual." ^ 1 1 Chit. PI. 86. 2 [In actions ex delicto, if too many persons are made defendants, the ob- jection will not be fatal at the trial. The plaintiff may either enter non- (134) CH. VI. J DEFENDANTS IN ACTIONS EX DELICTO. § 83 It is not necessary that the co-operation should be in the direct corporal act; for, to instance a trespass upon the person, "by the common law all are principals in an assault and battery, as in other trespasses; and he who counseled, aided, or assisted in any way the commission of a wrong, was in the eye of the law, as much a principal as he who inflicted the blows, and the declaration against him who counseled or aided was, consequently, the same as against him who actually committed the violence."^ The Code makes no change in the law of liability for torts, and as to whether joint or several, the common-law rules prevail. § 83. Instances of Liability several only. Persons are not jointly liable for a tort merely because they may have some connection with it, even, if it may give a several cause of action against them. There must be a co-operation in fact; "there must be some community in the wrong-doing among the par- ties who are to be united as co-defendants; the injury must be in some sense their joint work." * Thus, a joint action wiU not lie against the separate owners of dogs who together have worried the plaintifE's sheep ; ^ each owner is responsible only for the acts suit as to one and take a verdict as to another, or one may be acquitted by the jury and a verdict for damages be rendered against the others. A tort is in its nature the separate act of each person committing it, and tlie plaintiff may, at his discretion, join all of them in an action, or he may sue any one or more of them. He is not compelled to sue all the persons jointly 'liable. Chit. PI. 86, 87; Nicoll v. Glennie, 1 Maule & S. 588. Not only may he sue them severally, but he may even bring a different form of action against the different participants in the wrong. Du Bose v. Marx, 52 Ala. 506. There must be some community in the wrong. In order, however, that defendants in actions ex delicto may be sued jointly, there must have been some common intention on the part of the defendants to commit the wrong complained of. Nicoll v. Glennie. 1 Maule & S. 588; COOPER v. BLAIR, 14 Or. 255, 12 Pac. 370; Van Steenburgh v. Tobias, 17 Wend. 562,— where it was held that the separate owners of animals which had together committed the same mischief were improperly joined. But in Brady v. Ball, 14 Ind. 317, it was held that the joint owners of the same animals which have committed a trespass are jointly and severally liable.] 3 Scott, J., in Page v. Freeman, 19 Mo. 421. 4 Pom. Civ. Proc. § 308. 6 Adams v. Hall, 2 Vt. 9; Russell v. Tomlinson, 2 Conn. 206; Van Steen- (135) § 83a OF THE ACTION. [PART I. of his own dog. A subsequent assent will not make one a co- ti'espasser unless it was committed for his use,' for there was no connection between the parties at the time of the trespass. It is held that where one owns a city lot, and has dug a hole, into which the plaintiff fell, the latter cannot unite the owner of the lot for digging and leaving open the hole and the city for neglect in respect to its streets, for there was no community in the wrong.^ § 83a. Instances of joint Liability. The joint owners of trespassing animals are jointly and severally liable." An attorney and his client are treated as joint trespassers in case of an illegal arrest under process," even where the act was that of the attorney's agent.^" Where two oflQcers have seized the same property in the same suit — one by attachment, and the other by execution — if the property be wrongfully taken, they are joint burgli v. Tobias, 17 Wend. 502. "The reason which makes one liable who personally joins in, or aids and abets, the wrong done by another does not apply. That is a case of intention or volition in the offender, and the man who advises or countenances a trespass is the real c.iuse. He is sometimes the greater wrong-doer of the two; and at any rate the law will not allow one who is, perhaps, alone able to pay, to shield himself under the plea that the wrong was done wholly or in part by the other. This is the same principle which inculpates the rioter or conspirator, and makes him, though absent, a party to all that the actual perpetrator may say or do. In this there is great moral fitness and propriety, for there is actual moral delin- quency. Not so in the case of animals which happen to unite in perpetrating mischief." Cowen, J., in Van Steenburgh v. Tobias. « Wilson V. Barker, 4 Barn. & Add. 614; 4 Co. Inst. 317. "By the common law, he that receiveth a trespasse, and agreeth to a trespasse, after it is done, is no trespasser unless the trespasse was done for his use, or for his benefit and then his agreement subsequent amounteth to a commandment." 7 Trowbridge v. Forepaugh, 14 Minn. 133 (Gil. 100). "Neither is, in fact or in law, chargeable with, nor liable for, the matter set up as a cause of action against the other. They did not jointly conduce to the injury." For instances of several and not joint liability, see 3 Suth. Dam. 425, 426 and authorities cited. s Brady v. Ball, 14 Ind. 317. '■> Barker v. Braham, 3 Wils. 308; Codrington v. Lloyd, S Adol. & E. 449. 10 Bates V. Pilling, C Barn. & O. 38. (136) CH. VI.] DEFENDANTS IN ACTIONS EX DELICTO. § 83a trespassers, though it be not jointly held." In case of negligence or positive wrong by a servant in the coui'se of his employment^ the master being responsible and the act being single, they may be jointly sued.^^ "Where two railroad companies use the same track, and a collision occurs by the negligence of each, a passenger who is thereby injured has a joint right of action against both companies ; " and where two railroad companies had united in the business of transporting passengers over a third road, in another state, although . not authorized by their charters to do business in such state, they are jointly responsible for injuries to a passenger resulting from negli- gence on the part of their employees on such third road.^* Detinue or replevin, or, under the Code, an action for the recovery of personal property, will lie against one who has wrongfully parted with posses- 11 Spragne v. Ivueeland, 12 Wend. IGl. "They both had him [the horse]— one by delivery from the other; their possession was, therefore, sufficiently simultaneous to constitute them joint trespassers." "It will not do for these defendants to excuse themselves as to the possession of the horse by one saying, 'I have not j^ot him,' and the other, 'I did not take him.' " 12 Phelps V. Wait, 30 N. Y. 78; Wright v. Wilcox, 19 Wend. 343; Suydam V. Moore, 8 Barb. 358; Jlontfort v. Hughes, 3 E. D. Smith, 591. In Wright V. Wilcox, Cowen, J., to distinguish the master's liability from the case of a willful trespass by the servant, says: "The dividing line is the willfulness ■of the act. If the servant make a careless mistake of commission or omis- sion, the law holds it to be the master's business negligently done. It is of the very nature of business that it may be well or ill done. AYe frequently speak of a cautious or careless driver in another's employment. Either TQay be in the pursuit of his master's business; and negligence in servants is so common that the law will hold the consequences as a thing that he IS bound to foresee and provide against. But it is different with a willful act of mischief," etc. In Suydam v. Moore the defendants who were held to be liable were the fireman and engineer of a railroad company. The company was not joined, and the action against the servants alone was sustained, upon the ground that the servants with the master were jointly and severally liable in actions for the negligence of the servant. Yet it Is generally held that the servant himself is not liable to any one but his master for mere non-feasance or omission of duty. There is no privity it IS said between him and the one who svifCers from the omission of duty. Story, Ag. §§ 308, 309; Harriman v. Stowe, 57 Mo. 93. 13 Colegrove v. Xew York & N. H. R. Co., 20 N. Y. 492. i^Bissell v. Michigan Southern & N. I. R. Co., 22 N. Y. 285. The defend- ants will not be permitted to set up a violation of their charters by engaging in an unauthorized business, to excuse them from responsibility. (137) § 83a OF THE ACTION. [PART I. sion of the property jointly with, the person in actual possession. Thuf, one who has wrongfully pledged plate belonging to the plaintiff is liable to an action of detinue jointly with the person to whom it has been pledged." So, where one has fraudulently obtained a credit upon a bill of goods, and assigned them over for the benefit of his creditors, the vendor, having the right to repudiate the sale and pursue the goods, may make both the purchaser and his assignee parties to an action for their possession.^' Several creditors sued out executions and levied upon property which had been assigned, to the plaintiff for the benefit of creditors; by one action the plain- tiff obtained an injunction against all thus interfering with the property.^^ Several owners of water rights upon a stream above the plaintiff so used the water as to prevent a flow to the plaintiflf's ditches to which he had a prior right; held, that by a single action, an injunction would lie against all such owners and damages and costs would be assessed against them equally.^^ In New York a deputy sheriff holds the relation of servant to the sheriff, and both are 15 Garth v. Howard, 5 Car. & P. 346. 16 Nicliols V. Michael, 23 N. Y. 264. The assignee was held to be respon- sible because, being in actual possession, and not as an innocent purchaser, he refused to give up the goods; and the fraudulent purchaser, because he had been in possession, and had wrongfully transferred them. Selden, J., on page 272, says, after having quoted Garth v. Howard, supra, and Jones v. Dowle, 9 Mees. & W. 19, "The theory upon which these cases proceed is- perfectly sound, and applies directly to the present case. It is that where a person is in possession of goods belonging to another, which he is bound to deliver upon demand, if he, without authority from the owner, parts with that possession to one who refuses to deliver them, he is responsible in detinue equally with the party refusing. He contributes to the detention. It is the consequence of his own wrongful delivery. The action in such cases may properly be brought against both, because the acts of both unite in producing the detention." 17 Oliphant v. Mansfield, 36 Ark. 191. 18 Hillman v. Newington, 57 Cal. 56. The court does not allude to Keyes- V. Little York G. W. & W. Co., 53 Cal. 724, decided the year before, which was an action to restrain a nuisance committed by defendants severally but in the same manner. The plaintiff owned bottom land upon a river and the defendants who were engaged in hydraulic mining at several points, above, so managed their works that the tailings were swept down the river and deposited upon the plaintiff's land. The action was against the several miners and the court sustained a demurrer for misjoinder of defendants (138) CH. Vr.] DEFENDANTS IN ACTIONS EX DELICTO. § 84 liable for a trespass committed by the former ia the course of his employment; " and such is, doubtless, the general law. In Massa- chusetts, however, it is held otherwise; the deputy is not treated as a servant, but is bound, independent of any order by the sheriff, to execute process placed in his hands.^" § 84. Slander necessarily single. We have seen that there must be co-operation or community in the specific wrong in order to create a joint liability; but there is one wrong which, from its nature, cannot be committed by more than one, and concerning which there can be no joint liability. Slanderous words are incapable of joint °^ utterance, and if two or more should speak the same words at the same time, it would be the separate act of each.^^ But there are other injuries of a 19 Waterbnry v. Westervelt, 9 N. Y. 598; King v. Orser, 4 Duer, 431. 20 Campbell v. Phelps, 1 Pick. 62. Tbe liability of a deputy sheriff for a trespass should be distiuguished from a liability for a breach of duty— as, for a false return, or failure to make return. Such breach of duty is regarded as the act of the sheriff, and parties affected by it must look to him alone. "The law is clearly well settled that, when the action is founded upon a breach of duty of the office o.f sheriff, it must be brought against the principal, and not the deputy, though it be for the default of the latter." Owens T. Gatewood, 4 Bibb, 494. "The action must be brought against the high sheriff, as for an act done by him; and if it proceeds from the default of the under sheriff, or bailiff, that is a matter to be settled between them and the high sheriff." Mansfield, C. .7., in Cameron v. Reynolds, Cowp. 406. See, also. White v. Johnson, 1 Wash. (Va.) 159; Paddock v. Cameron, 8 Cow. 212. In this, too, the law of Massachusetts differs from the common law. Draper v. Arnold, 12 Mass. 449. 21 [But it was the dictum of the court in Thomas v. Rumsey, 6 Johns. 26, that, if several persons should unite in singing the same defamatory song, the singing may be treated as the joint slander of all, the reason being that each individual voice is a part, only, of what reaches the ear of the hearer as a whole. Judge Cooley, in speaking of this case, remarks that "even here, however, the person wronged might bring his separate action for the 'tenor slander,' for the 'bass slander,' " etc. Cooley, Torts, 124.] 22 Chit PI. 86; Townsh. Sland. & L. §§ 113, 118; Heard, Sland. & L. § 191; Webb v. Cecil, 9 B. Mon. 198; Thomas v. Rumsey, 6 Johns. 32; Patten v. Gurney, 17 Mass. 182. Semble, in a conspiracy to utter two or more may be joined. Forsyth v. Edmiston, 2 Abb. Pr. 430. (139) § 85 OF THE ACTION. [PART I. similar nature, which may be inflicted by more than one — as, by publishing a printed libel. The gist of the action is the publication.^^ So, more than one can be concerned in a fraudulent recommendation as to one's solvency." In slander the gist of the action is the speak- ing the words in presence of others; the word "published,^' used in counting upon slander, means no more; the wrong begins and ends in words, and every one who repeats them is guilty of a distinct wrong. But in a fraudulent recommendation, the gist of the action is the deception and the fraudulent intent, in which two or more may be interested and may concur,^^ and two or more may be con- cerned in printing a libel. § 85. Injuries by the Wife — liiability for her Torts. The code does not change the common-law liability of the hus- band for the torts of the wife ^^ so long as the relation exists, whether 23 "The makiug and publishing are matters susceptible of a joint concern and undertaking, as much as a trespass, or falsely and maliciously procuring another to he indicted. Coryton v. Lithebye, 2 Saund. 117a, note. This is not like an action against several persons for speaking the same words. Such an action cannot be maintained, because the words of one are not the words of another. But with respect to libels, if one repeat, and another write, and a third approve, what is written, they are all makers of the libel, for all persons who concur and show their assent and approbation to the doing of an unlawful act are guilty," etc. Thompson, J., in Thomas v. Rumsey, 6 Johns. 26; Townsh. Sland. & I^. § 115, and note. 24 Patten v. Gurney, 17 Mass. 182. 25 Patten v. Gurney. Chitty says (Chit. PI. 80), referring to a case I have not seen, that there can be no joint liability for bribery. Perhaps not for receiving a bribe, but it would seem that two or more might join in offering one. 20 [This common-law rule has been changed in the following code states, so that now in these states the wife is liable alone for her own torts: Rev. St. Ind. § 5120; Rev. St. Ohio, § 499G; Code Iowa, § 3767; Gen. St. Conn. § 984; Code Civ. Proc. N. Y. § 450; Rev St. Mo. § 686i4; Sanb. & B. Ann. St Wis. § 2969a; Gen. St. Wash. § 1412; Comp. Laws N. D. § 2504; Oomp. Laws S. D. § 2594; Consol. St. Neb. § 1413; Comp. St. Mont. § 1444; Gen. St. Minn. c. 69, § 6; St. Okl. § 4308; McCABB v. BERGE, 89 Ind. 225; Mayhew v. Burns, 103 Ineem. Judgm. % 237, note 1. 48 Kasson v. People, 44 Barb. 347; Koenig v. Steckel, 58 N. Y. 475. As to whether the marriage of a joint trespasser by the plaintiff will have that effect, see Turner v. Hitchcock, 20 Iowa, 310, upon which question the com-t was equally divided. (144) CH. VI.] DEPENDANTS IN ACTIONS EX DELICTO. § 89 In the former case, joint contractors, if sureties, are entitled to com- plete exoneration by their principal, and, whether sureties or prin- cipals, can enforce contribution as between themselves. On the other hand, "the general rule is that between wrong-doers there is neither indemnity nor contribution." *' There are, however, excep- tions to this rule.'" The statute usually authorizes sheriffs to exact, in certain cases, bonds of indemnity from execution plaintiffs; and in case of a levy upon goods not subject to the execution — as, when belonging to a third person — ^both the sheriff and the one who ordered the levy are liable in trespass. Still, if the amount be collected of the sheriff," he may recover it back upon the bond. So, a master may be entitled to indemnity by the servant If the wrongful act be done by command of the master, both are wrong-doers, and there should be no indemnity; but "if damages have been recovered from the master, by reason of the servant's negligence in doing the mas- 49 Denman, J., in BETTS v. GIBBINS, 2 Adol. & E. 57: "If a plaintiff wtio has recovered judgment against two defendants for a joint trespass levies the whole damages on one of them, that one has no claim for a moiety of the dam- age from the other." 2 Add. Torts, 1197. Aliter in Wag. St. Mo. p. 521, § 8 (Rev. St. 1879, § 2127). 50 [This general rule is confined to cases where the party seeking the con- tribution linew, or is to presumed to have known, that the act was unlawful. The com-t said in the case of ACHESON v. MILLER, 2 Ohio St. 203: "The common-sense rule and the legal rule are the same, namely, that, where parties tliink they are doing a legal and proper act, contritiution will be had; but, when the parties are conscious of doing a wrong, coiu'ts will not interfere." Judge Cooley criticises this rule, and cays "that it denies contribution only in cases in which parties are conscious of wrongdoing. There are many cases in which the absence of consciousness of wrong could not excuse a man either in law or morals." Best, C. J., in Adamson v. Jarvis, 4 Bing. 6G, 73, states the true rule, which is: "The wrongdoers cannot have redress or contribution against each other where the person seeking redress must be presumed to have known that he was doing an unlawful act." See, also, JACOBS V. POLLARD, 10 Gush. 287, 289; COVENTRY v. BARTON, 17 Johns. 142; MERBYWEATHER v. NIXAN, 8 Term R. 186.] 61 [Also where an officer Is induced, by the false statements of another as to the ownership of certain property, to take it into his possession, and is sued, and is compelled to pay damages for so doing, he is entitled to Indemnity from the party guilty of the fraud and those assisting him therein. KENYON V. WOODRUFF, 33 Mich. 310.] BLISS CODE PL. 10 (145) § 89 OF THE ACTION. [PAET I. ter's work or in executing his orders, these damages may be recov- ered by the master from the servant, and the verdict and judgment in the action against the master are evidence of the amount of these damages." ^^ An auctioneer is responsible to the true owner of goods which have been converted, although he supposes them to be the property of the person at whose request he sold them; but in such case the person thus employing him is bound to indem- nify him, and the auctioneer may recover the amount he has been obliged to pay, and his costs expended.^^ In another case it was held that where the plaintiff had detained goods in his possession, because claimed by the defendant, and for him, and had afterwards been coEipelled to pay an adverse claimant their value, there was no implied promise of indemnity on the part of the defendant."* In a case in Ohio,^° several persons who, with the defendant, were sure- tiete upon a promissory note, had directed the sheriff to levy upon a certain store of goods as the property of the principal. The true owner recovered the value of the goods of the sheriff, and of those thus directing him to levy, and an action for contribution, by one of the sureties who had been thus compelled to pay the true owner, against a co-surety who had stood aloof, was sustained upon the ground, in part, that the trespasf,ers supposed they were doing a legal and proper act to protect themselves and the defendant. "The rule that wrong-doers cannot have redress or contribution against each other is confined to cases where the person seeking redress must be presumed to have kno^.'D that he was doing a wrong." ^^ One may be entitled to indemiily or contribution according to circumstances. If in good faith, acting for others, he supposes, and has reason to suppose, that he is doing a lawful act, they shall indem- nify him; but, if he is thus acting for himself and others he is entitled to contribution only.'*' 62 Add. Torts, 34, 35. 63 Adamson v. .Tarvis, 4 Bing. 09; Id., 12 Moore, 241. 64 Belts v. Gibbins, 2 Adol. & E. 57. The chief justice says that the exception to the rule that between wrongdoers there is neither indemnity nor contribution, is where the act is not clearly illegal in itself. 55 Acheson v. Miller, 2 Ohio St. 203. 6« Best, J., in ADAMSON v. JARVIS, supra. «T See Cooley, Torts, pp. 144-150, and cases cited. (146) CH. VII.] DEFENDANTS IN ACTIONS EX CONTKACTU. § 91 CHAPTER VII. OF PARTIES TO ACTIONS, CONTINUED. 5. Defendants in Actions founded on Contract. Section 90. Tlie general Rule. 91. Obligations, whether joint or several, or both. 92. Parties at Common Law, where the Obligation was joint. 93. Certain States make joint Obligations several as well. 94. Statutory Provisions as to joinder in several Obligations— Com- mon law Rule — Code Rule. 95. Construction of the Provisions named in the last Section. § 90. The general Rule. In express contracts the contracting party, the one who has as- .sumed the obligation, is the one liable upon it [and must be made the defendant], although he may not have been beneficially inter- ested. The agreement itself designates the parties, and doubts will seldom arise in respect to the proper defendants. I shall hereafter, in considering how much is preserved of an old rule of pleading that in actions upon contract the complaint must show privity, speak of the liability to suit, as well as the right to sue under certain circum- stances, the facts creating the liability or establishing the right to be shown in the pleadipg.^ The reader is referred to these sections, most of which pertain as well to the present subject as to the one- then being considered. But there are some matters that should be noted in this connection. § 91. Obligations, whether joint or several, or both. At common law, in an action upon a joint obligation or undertak- ing, all who thus join must be made defendants,^ and in determin- ing whether it is joint the rule is "that several perons contracting together with the same party for one and the same act shall be re- garded as jointly, and not individually or separately liable, in the 1 See post. §§ 234-215. 2 1 Chit. PI. 42. (147) § 92 ■ OF THE ACTION. [PART I. absence of any express words to show that a distinct as well as en- tire, liability was intended to fasten on the promisors." ^ Thus, con- tracts made by partners are joint,* and all must be joined in an ac- tion [except dormant partners]; and so with promissory notes, and other instruments or agreements, made by more than one, when the agreement is general — as, "we hereby agree," or "hereby promise," or "bind and obligate ourselves," etc. Implied obligations are joinf* when the facts from which the promise is implied apply equally to more than one. Partnership debts" and debts of joint stock com- panies are always joint; and inasmuch as express words are neces- sary to malie an agreement several, and especially to make one joint and several, in the absence of such words it is joint. A written contract in the singular number — as, "I promise," etc. — if signed by more than one, is treated as joint and several.'' § 92. Parties at Common liaw, in joint Obligations. The old common-law significance of the term "joint" should be borne in mind. As with rights, it denoted but a single indivisible claim ; " so, with obligations, aU the obligors constituted, as it were, one person owing a single debt, and no one of them owed any part of it Hence the necessity of bringing all before the court, and no others. There was no claim except as against all, and if a less number or if others were charged, the contract sued on was not the one made. The doctrine of survivorship, which at com- 3 1 ciiit. PI. 41. ■* [See exceptions in section 92, post; also, Poole v. Hintrager, 60 Iowa, 180, 14 N. W. 223.] 6 1 Chit. PI. 41. 6 [But there is this further exception to the rule that all partners must be joined: Where one of the partners is a resident In a foreign jui-isdiction, so that he cannot be brought before the court, and the fact is so stated in the petition, the court will ordinarily proceed against the partners who are within the jurisdiction. Darwent v. Walton, 2 Atk. 510; Milligan v. Milledge, 3 Cranch, 220; Cooper, Eq. PI. 35.] ^ Upon joint and several liabilities and joint and several rights, see 1 Pars. Cont and notes, c. 2; [Ehle v. Pui-dy, 6 Wend. 629; Peckham v. Inhabitants of North Parish in Haverhill, 16 Pick. 274.] <• Ante, § 62; [Hemmenway v. Stone, 7 Mass. 58.] (148) CH. VII.] DEFKNDANTS IN ACTIONS EX CONTRACTU. § 92 men law ran through every species of joint interests, was also ap- plied to obligations, and the claim was only against the living. Hence, if one died, his estate was discharged, and where all had died, the demand was against the estate of the last survivor.^ This doctrine has long been obsolete, but the impression it made upon forms of procedure has continued to our day, and, unless other- wise authorized by statute, the suitor must still proceed against «very obligor; ^° if by mistake he includes others, it is fatal, and upon the death of one or more, he can prosecute only those who sur- vive. If the plaintiff fails to uni.te all the joint promisors, a plea in abatement will stop the proceeding, although a plea in bar admits a proper joinder; but if he charges more than those jointly obligated, the mistake is fatal at the trial, in arrest, or in error. In actions upon contract, no provision is made for a finding or a judgment in favor of one defendant and against others; the verdict must be for or against the defendants as a whole — that is, the obligation is joint, or there is no liability in the given action. The apparent exceptions which excuse the omission of a dormant partner, as he was not con- sidered in making the contract, also those under disability, as the contract is not obligatory upon them," in no way weaken the force of the original rule. But as we shaU shortly see, aside from the statutory provisions noted in the next two sections, the adoption of the equity rules of pleading if enforced according to their spirit, modifies many of the technical rules which at common law govern the enforcement of joint obligations — abolishes the formal recognl- » "But if they (the obligors) are jointly and not severally bound, the obligee must sue them jointly. Also, in such case, if one of them dies, his executor is totally discharged, and the sui-vivor and survivors only chargeable." Bac. Abr. tit. "Obligations," d, 4. The court of equity, however, came to adopt a different rule, and compelled contribution on the part of the executor. 10 [This general rule that all joint obligors must be joined as defendants has been changed by statute in some of the states, so that now those jointly liable may be sued severally. See Code Iowa, § 3755; Gen. St. Kan. par. 1101; Mansf. Dig. Ark. § 4944. The provision of the Kansas Code is: "In all eases of joint obligations and joint assumptions of copartners or others, suits may be brought and prosecuted against any one or more of those who are so liable." Poole v. Hintrager, 60 Iowa, 180, 14 N. W. 223; Bazel v. Belcher, 31 Ohio St. 572; Fox v. Abbott, 12 Neb. 328, 11 N. W. 303.] 11 1 Chit. PI. 43. (149) § 93 OF THE ACTION. [PART I. tion of the doctrine of obligation arising from survivorship where there is no such obligation in fact. § 93. Certain States make joint Obligations several as ■well. The common-law rule has been changed in Kentucky and Arkan- sas by the following provision: "Where two or more persons are jointly bound by contract, the action thereon may be brought against all or any of them, at the plaintiff's option. Where any of the persons so bound are dead, the action may be brought against any or all the survivors, with the representatives of any or all the decedents, or against the latter or any of them. When all the persons so bound are dead, the action may be brought against the representatives of all or any of them. An action or judgment against any one or more of several persons jointly bound shall not be a bar to proceedings against the other." " The Iowa statute is still broader: "Where two or more persons are bound by contract, or by judgment, decree, or statute, whether jointly only, or jointly and severally, or severally only, and including the parties to negotia- ble paper, common orders and checks, and sureties on the same or separate instruments, or by any liability growing out of the same, the action thereon may, at the plaintiff's option, be brought against any, or all of them. Where any of those so bound are dead, the ac- tion may be brought against any or all the survivors, with any or all the representatives of the decedents, or against any or all such representatives. An action or judgment against any one or more of several persons jointly bound shall not be a bar to proceedings against the others." ^^ The Missouri statute provides that "all con- tracts which by the common law are joint only, shall be construed to be joint and several;" and that, "in all cases of joint obligations and joint assumptions of copartners, or others, suits may be brought against any one or more of those who are liable." ^* The Code of 12 Bullitt's Code Ky. § 27; Gantt's Dig. Ai-k. 1874, § 4480. See, also, sec- tions 3585-3590, making all joint obligations several, and abolishing survivor- ship. 13 Code Iowa 1873, § 2550. i*Wag. St. 269; Rev. St. 1879, §§ 058, GGl. (150) CH. VII.J DEFENDANTS IN ACTIONS EX CONTRACTU. § 94 North Carolma,^^ provides that, "in all cases of joint contracts of co- partners in trade, or others, suit may be brought and prosecuted on the same against all or any number of the persons making such con- tracts." The Colorado statute " provides that "all joint obligations and covenants shall hereafter be taken and held to be joint and several obligations and covenants." The common-law rules, then, as to joint or several liability, upon contracts are directly, or in effect, abolished in the states of Kentucky, Arkansas, Missouri, North Caro- lina, and Colorado. § 94. Statutory Provisions as to joinder in several Obli- gations — Common la^w Rule — Code Rule. At common law, parties to a contract are liable to suit, as wheth- er jointly or severally, according to the nature of their obligation; and those holding different relations to the same instrument — as, makers, drawers, indorsers, etc., of negotiable paper — cannot be united as defendants in the same action. But a radical change in this respect has been made in most of the states. The statute of New York,^' as originally adopted, provided that "persons severally liable on the same obligation or instrument, in- cluding parties to bills of exchange and promissory notes, ruay all, or any of them, be included in the same action, at the option of the plaintiff."^* This provision, as originally adopted in New York, 16 Code 1883, § 187. 16 Rev. St. Colo. 1868, p. 368. 17 Code Pi-oc. N. Y. § 120, amended by Code Civ. Proc. 1876, § 454, to include "other parties liable over" to a party to the instrument 18 [This statutory provision would seem to be broad enough to permit a guarantor on a promissory note or other contract to be joined with the orig- inal parties in an action on such contract, but it has been held that it does not AUen v. Fosgate, 11 How. Pr. 218; Virden v. Ellsworth, 15 Ind. 144; Graham v. Eingo, 67 Mo. 324. A contrary rule has been given in Ohio, Iowa, and Kansas. Kautzman v. Weirick. 26 Ohio St. 330. [Petition on a Promissory Note— Payee vs. Maker. [Title of Case. [1st. Allege the execution and delivery of the note, and set out copy. In- stead of setting out copy, in some jm-isdictions the note itself must be filed. [2d. Allege default of payment [3d. Prayer.] (151) § 94 OF THE ACTION. [PART I. was literally copied in Ohio,^' in Wisconsin,^" in Minnesota,'^ in Nebraska,^^ in North Carolina,^^ in South Carolina,^* in Oregon,^" in Colorado.^' In Indiana, the words "and immediately" are inserted between the words ''severally" and "liable,"^' and in Kansas the words "and indorsers and guarantors" follow the words "promissory notes." ^' The following is the Kentucky and Arkansas proyision: "Persons severally liable on the same contract, including the parties to bills of exchange and promissory notes placed upon the footing of bUls of exchange, common orders and checks, and sureties upon the same or separate instruments may all, or any of them, or the representatives of such as may have died, be included in the same action, at the plaintiff's option." ^° The California and the Nevada codes insert after the words "promissory notes" the words "and sureties on the same or separate instruments."^" The same result is reached in Missouri and in Iowa by more general language, the statute of the latter State, as given in the preceding section, being broad enough to make joint obligations several, and the several obli- gations named joint, so far as concerns parties to actions. The Missouri statute is as follows: "Every person who shall have a cause of action against several persons, including parties to bills of exchange and promissory notes, and be entitled by law to one satis- faction therefor, may bring suit thereon jointly against all, or as many of the persons as he may think proper; and an executor or ad- ministrator, or other person liable in a representative character, may be joined with others originally liable, at the option of such person." ^^ 19 Code Proc. § 38, clianged in language in Kev. St. 1880, § 5009. 20 Rev. St. 1871, c. 122, § 21, enlarged in Rev. St. 1878, § 2609, as in New York (note 1, supra). 21 Gen. St. c. 66, § 36. 22 Code Civ. Proc. § 44. 23 Code Civ. Proc. § 63; Code 1883, § 18G. =4 Code Proc. § 143. 25 Code Civ. Proc. § 36. 26 Code Civ. Proc. § 14. 2T Code Civ. Proc. § 20; Rev. St. 1881, § 270. 28 Civ. Code, § 39. 29 Bullitt's Code Ky. § 26; Mansf. Dig. Ark. 1884, § 4943. 80 Code Civ. Proc. Cal. 1885, § 383; Comp. Laws Nev. 1873, § 107a SI Wag. St. p. 1001, § 7; Rev. St. 1879, § 3467. (152) CH. VII. J DEFENDANTS IN ACTIONS EX CONTRACTU. § 96 § 95. Construction of the Provisions named in tlie last Section. The original New York proTision, so extensively copied, provided for a joint action against persons liable on the same obligation or instrument, and is, so far, narrower than those adopted in some of the States. It did not reach independent and collateral agree- ments, though pertaining to the same subject-matter. Thus, it was held by the New York City Court of Common Pleas that a guaranty of the payment of rent, though following the lease upon the same paper, but not included in it, was a collateral undertaking, and that the guarantor could not be sued jointly with the lessee.^^ It was also held in the Supreme Court that a guarantor of a promissory note cannot be united in an action against the maker, for the reason that the contract of guaranty, though indorsed upon the note, is not the same obligation.^' But if the guaranty be included in, and made part of, the original agreement, it is held to come within the statute.'* In Ohio a writing in form of a guaranty, if made before 32 Phalen v. Dingee, 4 E. D. Smith, 379. This case follows Tibblts v. Percy, 24 Barb. 39, which was also a guaranty upon a lease. De Ridder v. Scher- merhorn, 10 Barb. 638, was upon a guaranty of the performance of his duty by an agent, made upon the same paper containing agent's agreement, but not included in it; the union of the agent and guarantor as defendants was held to be improper — their obligations were not the same. [See, also, Mowery v. P. P. Mast & Co., 9 Neb. 447, 4 N. W. 69; (Dole v. Merchants' Bank, 60 Ind. 350.] 33 ALLEN v. FOSGATE, 11 How. Pr. 218. The decision in this case is based chiefly upon the language of Williard, J., in Brewster v. Silence, 8 N. Y. 207, where the question decided was whether a guaranty came within the statute of frauds as an original imdertaking, or was part of the note. No question of pleading was directly raised, but the opinion (page 212) thus blended the two questions: "The note and guaranty are not one and the same thing. The note is the debt of the maker; the guaranty is the engage- ment of the defendant that the maker shall pay the note when it becomes due. A joint action will not lie against them both. They are not the same, but different and distinct contracts." [Contra, KAUTZMAN v. WEIRICK, 26 Ohio St. 330.] 34 CARMAN V. PLASS, 23 N. Y. 286. In this case the action was against a lessee and one who, in the same instrument, had guaranteed the perform- ance of the covenants of the lease, and was described in the instrument as (153) § 95 OF THE ACTION. [PAKT I. the delivery of the paper, whether written under or indorsed upon it, is held to be a part of the original undertaking, and not a collateral one; the apparent guarantor is called a surety, and may be sued jointly with the other parties.^^ It is held in Wisconsin that a guar- antor cannot be joined as defendant in a suit for foreclosure, and a personal judgment rendered against him, as is allowed against the principal debtor.^' In Iowa, under section 2764 of the Code of 1860, which was the same as section 2550 of the Code of 1873," it is held that the absolute guarantor of the payment of an obligation, being also the assignor, may be joined as defendant with the maker.'* In Indiana,^^ it is held that the guarantor of the payment of the rent cannot be united with the lessee in an action to recover the rent, for the usual reason given, to wit, that the contract of guaranty was collateral to the agreement of the lessee. In Missouri, notwith- standing the comprehensive language of the statute,*" it is held that a guarantor cannot be united, as defendant, with the original obligor.*^ party of the third part. Denio, J., says that "the provision in question (Code, § 120) relates in terms to cases where a plurality of persons contract several obligations in the same instrument. That was the case here. It may be said that the cause of action is not, m this case, precisely the same against both defendants. The lessee engaged to pay the rent unconditionally, and the surety was under no obligation until the principal had made default. But after such default each of them was liable for the same precise amount ab- solutely. They were, therefore, within the language which speaks of persons severally liable upon the same instrument." S5 Leonard v. Sweetzer, 16 Ohio, 1; Gale v. Van Arman, 18 Ohio, 336. In the last case, Hitchcock, J., dissents, and claims that the ruling abolishes the distinction between a guarantor and a sm-ety or accommodation indorser. 36 Borden v. Gilbert, 13 Wis. 670. 37 Ante, § 93. BsPeddicord v. Whittam, 9 Iowa, 471; Marvin v. Adamson, 11 Iowa, 371; Tucker v. Shiner, 24 Iowa, 334; Stout v. Noteman, 30 Iowa, 414. Under a section of the Code peculiar to Iowa, he should, like an indorser, be charged in a separate count. Tucker v. Shiner, siipra. 39 Virden v. Ellsworth, 15 Ind. 144. 40 See the preceding section. 41 Graham v. Eingo, 67 Mo. 324; Parmerlee v. Williams, 71 Mo. 410. Nor can the maker and assignor of a non-negotiable instrument. First Nat Bank V. Gay, Id. 627. (154) CH. YIII.J DEFENDANTS IN EQUITABLE ACTIONS. § 96 CHAPTER VIII. OF PARTIES TO ACTIONS, CONTINUED. 7. Defendants in Actions for Equitable Relief. Seel ion 96. Parties Defendant— The Equity Rule. 97. The statutory Rules. 98. Mortgages — Actions concerning them— Foreclosure. 99. Parties Defendant in Suits to redeem. 100. Parties Defendant in Suits to foreclose. 101. Continued— Subsequent Incumbrancers, and others. 102. Continued— In Case of Death of, or Assignment by, Mortgager. 103. Continued — Other Interests. 104. Statutory Foreclosure. 105. Where the Liability is joint— The Equity Rule. 106. Continued — The Rule under the Code— Equity Rule Adopted. 107. Decisions upon this Question. 108. In Suits for specific Performance. 109. Continued — As to outstanding Titles. 109a. Trusts — ^In Actions by Beneficiaries for breach of— General Rule as to Parties. 109b. Same— In other Actions affecting. 110. Multifariousness or Misjoinder by an improper Union of De- fendants. 110a. Who may be united without a Joint Interest 111. Parties in other Actions. Ilia. Whether one should be made Plaintiff or Defendant. § 96. Parties Defendant — The Equity Rule. Mr. Story gives the equity rule as follows: "All persons mate- rially interested in the subject-matter ought to be made parties to the suit, either as plaintiffs or defendants, however numerous they may be, in order, not only that complete justice may be done, but that multiplicity of suits may be prevented; or as the rule was once stated by Lord Hardwicke, that all persons ought to be made par- ties before the court who are necessary to make the determination complete, and to quiet the question." 1 And further: "It has also i Story Bq. PI. § 76a. (155) § 96 OF THE ACTION. [x'ART I. been suggested that it would be a more just exposition of the general rule to declare that all persons interested in the object of the suit ought to be made parties." ^ The author, however, goes on to show that the decisions have not all conformed to these statements of the rule; that it is not founded upon any positive and uniform principle, and does not admit of being expounded by the applica- tion of any universal theory as a test.' In a recent case in the Supreme Court of the United States,* Bradley, J., thus speaks of parties: "The general rule as to parties in chancery is that all ought to be made parties who are interested in the controversy, in order that there may be an end of litigation. But there are qualifications of this rule arising out of public policy and the necessities of particular cases. The true distinction ap- pears to be as follows: First, where a party will be directly af- fected by a decree, he is an indispensable party, unless the "parties are too numerous to be brought before the court, when the case is subject to a special rule; second, where a person is interested in the controversy, but will not be directly affected by the decree made in his absence he is not an indispensable party, but he should be made a party if possible, and the court will not proceed to a decree without him if he can be reached; third, where he is not in- terested in the controversy between the immediate litigants, but has an interest in the subject-matter which may be conveniently set- tled by the suit, and thereby prevent further litigation, he may be a party or not, at the option of the complainant." ° 2 Story, Eq. PI. § 76b. 3 Story, Eq. PI. § 76c. See note 4 to tMs section for a valuable collection of statements by distinguislied chancellors and others in regard to parties. 4 WILLIAMS V. BANKHEAD, 19 Wall. 563; [1 Daniell, Ch. PI. & Pr. 246; Douglass Co. V. Walbridge, 38 Wis. 179; Hamill v. Thompson, 3 Colo. 518.] 5 [These three distinctions, it will be observed, divide parties defendant into, in fact, but two general classes: [1st. Necessary. [2d. Proper. [A necessary party is one without whom no decree can be made which will fully settle the issue in the cause. Shields v. Barrow, 17 How. 130, 139. A proper party is one without whom a decree may be made as to other par- ties without affecting his rights. [When it appears that one or more who ought to be made parties are out (156) CH. VIII.J DEFENDANTS IN EQUITABLE ACTIOiNS. § 97 § 97. The statutory Rules. The following rule, heretofore noted,' pertains both to plaintifls- and defendants: "Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the con- sent of any one who should have been joined as plaintiff cannot be ob- tained, he may be made a defendant, the reason thereof being stated in the complaint." This rule pertains to the joinder upon either side of those whose interests are the same, it is imperative and applies to every class of actions of which such interests can be predicated. The liberty to make defendants of those who are unwilling to unite as plaintiffs is derived from the equity practice, the Code extends it to all actions,'' and such parties are rather plaintiffs than defend- ants, though nominally the latter. The several procedure codea give, immediately preceding the section last quoted, another general rule as to defendants, which is supposed to embody the substance of the equity rule. "Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or set- tlement of the question involved therein." * This language does not in terms distinguish between parties without whom no effective remedy can be given — that is, parties who are indispensable [or necessary] — and those who should be brought into court in order that there may be a complete settlement of the questions involved in the controversy, or who have an interest in the subject-matter of the jurisdiction of the court, or that maliing them parties would oust the court of jurisdiction, the court may proceed without their presence, provided the interest of those made parties is such that the controversy can be satis- factorily determined as to them, without prejudicing the rights of those not made parties. Milligan v. Milledge, 3 Cranch, 220.] 6 Ante, § 61, and Code reference. T Reasons have been heretofore given for treating this permission as ap- plicable to causes of action heretofore called legal, as well as those called equitable. Ante, §§ 77, 78. 8 In New York, California, North Carolina, and South Carolina the following clause is added: "And in an action to recover possession of real estate, the landlord and tenant thereof may be joined as defendants; and any person claiming title or a right of possession to real estate may be made a party plaintiff or defendant, as the case may require, to any such action." (157) •§98 -OF THE ACTION. [PAKT I. of the suit. The latter are proper parties; if omitted, their interests are not affected; the judgment may be good as far as it goes, or as between the actual parties, but it leaves some things unsettled. Courts may order them to be made parties — should, ordinarily, re- fuse to proceed without them ; yet, unless their interests are affected by the judgment, it is not error to do so. The phrase "may be made a defendant" should be treated as imperative or directory, according to the nature of the interest. The rule thus embodied in the Code is called equitable, as derived from equity practice, and because it will more frequently be ap- pealed to in proceedings formerly called equitable. Actions for the recovery of money or specific property are more simple; unless in ■exceptional cases, those only will be sued against whom a judgment is sought for the money or the restitution of the property; while in other proceedings, where all the equities clustering around the •case, or the rights that attach to the property, can be adjusted, all interested persons should be brought in, that everything may be settled. But it must not be hence inferred that the rule is not a general one, and that it has made no change in actions for the re- covery of money or specific property. § 98. Mortgages — Actions concerning them — Foreclosure.^ "A mortgage is a conveyance of an estate, by way of pledge, for the security of a debt, and to become void on payment of it. The legal ownership is vested in the creditor, but in equity the mort- [In an action to foreclose a real estate mortgage, between tlie mortgagee and mortgagor, the following facts should be alleged: [Title of Case. [1st. The debt. [2d. To secure the payment of said debt, a mortgage was given, covering certain property described. In some of the states copies of the original note and mortgage must be made a part of the complaint [3d. That the mortgage contained certain conditions named. [4th. Default in payment of debt, whereby mortgage condition has become absolute; and state amount due. [5th. In some states' you must state that no proceedings have been ha-d to collect the note. [6th. Add appropriate prayer.] (158) CH. VIII.J DEFENDANTS IN EQUITABLE ACTIONS. § 99 gager remains the actual owner until he is debarred by his own default or by judicial decree." " The debtor, being but the equita- ble owner, can only enforce his right to redeem by a proceeding of an equitable nature; and, on the other hand, the creditor is com- pelled to resort to a similar action if he would cut off that right. This right or title of the debtor is commonly called his equity of re- demption. Besides mortgages proper, a creditor may have a lien upon property which leaves the title in the debtor — as, a vendor's lien, or lien by deposit of title deeds, or by an imperfect mortgage. They are sometimes called equitable mortgages, and rights in re- gard to them can be enforced only by an action for equitable relief. If there has been no transfer of the equity of redemption, or sale of the property to which the lien attaches, or sale of the debt, and when the parties to the transaction are all living, and the premises are affected by no other lien, there can be no difficulty in determin- ing who should be made parties. But, these things not all concur- ring, it is important to know who should come into, or be brought into court, either to represent, or to be united with the original par- ties to the transaction. In this class of actions the difference be- fore alluded to should be noted between necessary parties, that is those without whom no right can be enforced, and proper parties — that is, those whose presence may be dispensed with, but who have an interest in, or are connected with the subject-matter of the -action, whose rights in such case remain unaffected. The statute, as we have seen, provides for both necessary and proper parties. The first have, or claim, an interest adverse to the plaintiff; a lib- eral construction of the second clause will include all who are treated in the equity rule given in section 96 as proper, but not in- dispensable parties. It is error to omit a necessary party, while, if A proper party be omitted, the proceeding is but incomplete. § 99. Parties Defendant in Suits to redeem. The legal title, being in the mortgagee, passes to his heirs. In an action to redeem, brought after his death, they must be made parties; and inasmuch as the money to be paid by the mortgager 10 4 Kent, Comm. 136. (159) § 99 OF THE ACTION. [PART I. goes to the personal representatives of the deceased, they also are necessary defendants." No decree will be made unless they are there to take charge of the redemption fund. The heir of a mortgager desiring to redeem should ordinarily hring into court the personal representatives of his deceased an- cestor, inasmuch as he may have a right to require that the debt be paid out of the personal assets of the estate; ^^ but if he has no such right, and the administrator will be in no way affected by his action, there is no reason for making him a party. The administra- tor of the mortgager has himself a right to file a bill to redeem if the property becomes necessary for the payment of debts." If the mortgager has sold his equity of redemption, the assignee, in seek- ing to redeem, should make him a party if he is to be in any way affected — as, where he has conveyed the estate free from incum- brances and is under obligation himself to redeem ; otherwise, not.^* Not only are the heir and assignee of the mortgager entitled to redeem, but also a subsequent mortgagee. He is directly interested in removing all prior incumbrances, and a privity of estate has been created between him and all other parties. The rule applies not only to the holder of a second or third mortgage, but to a judgment- creditor, or to any one who may hold a lien upon, or who has a legal or equitable title to, the premises. His interest will authorize him to remove any incumbrance necessary to the protection of his own rights and interests, and in enforcing them by action, he should make parties of all to be affected by the decree — both the holder of the previous liens or incumbrances which he would remove, or their heirs and personal representatives if interested or affected, and those whose duty it may be to pay off any claim previously se- cured, or their heirs or personal representatives. A petition in such case may be more than to redeem — it may be to foreclose the former equities as well.^'' The owner of the demand which has been secured, or which may be a lien, may have assigned it with the security and there may have been many assignments. In such case, if there is no dispute as to the amount which may have been paid to any of the previous 11 Story, Eq. PI. § 18S. is McGlothlin v. Hemery, 44 Mo. 350. 12 Stoi-y, Eq. PI. § 182. ii Story, Eq. PI. § 183. " Story, Eq. PI. §§ 185, 18G. (100) CH. VIU.J DEFENDANTS IN EQUITABLE ACTIONS. § 100 holders, and the assignment is complete, the last assignee is the only necessary defendant; but if an account is to be taken as to what has been received by intermediate holders, or if only a part has been assigned, all those to be affected are necessary parties.^" These instances are all that will ordinarily arise, and for excep- tional cases the reader is referred to works upon equity pleadings, in which the subject is treated more largely than is consistent with the plan of this work. § 100. Parties Defendant in Suits to foreclose."^ In a suit to foreclose the mortgager's equity, whether for strict foreclosure or to enforce the lien by sale, the same general rule holds in respect to parties, making it proper to join all who are in- terested in the estate or the fund, and making it necessary to bring in all who are to be affected by the judgment. Thus, those inter- ested in the equity of redemption — as, assignees, heirs or devisees, and if the assignment be in trust, the beneficiaries — should be made defendants, that their equities may be foreclosed or their interests protected.^* In regard to other incumbrancers, the holding is not uniform. A prior incumbrancer, if not a party, would not be affected by a judgment, whether of strict foreclosure or of sale, for the property would still be subject to his lien. He is rather a proper than a necessary party, and the court will permit, or even require, him to be brought in, if the incumbrancer or the mortgager can show a good le Story, Eq. PI. §§ 189, 190. " [Oeneral Rule. [As a general rule, in foreclosure proceedings, ttie mortgagor is tlie only necessary party defendant; but it may be necessary, to cut off other interests and give the purchaser a clear title, to mate others parties; as the wife, a subsequent purchaser, subsequent mortgagor, or subsequent lien hold- ers of any character. Kay v. Whittaker, 44 N. Y. 565, 572; Hay ward v. Stearns, 39 Cal. 58; Stanbrough v. Daniels, 77 Iowa, 561, 42 N. W. 443.] 18 Upon the death of the equitable owner of land, pending proceedings to foreclose, his heirs must be made pai-ties. Dodd v. Neilson, 90 N. Y. 243. It has been held not to be necessary to name the trustee, as his beneficiary possesses the real interest; but it is certainly proper to do so. Stoi-y, Eq. PL § 193. BLISS CODE PL. 11 (161) § 100 OF THE ACTION. [PAET I. reason therefor, as, when there have been part payments, or a credit is claimed but not allowed, it may be important to ascertain the true amount due upon the first incumbrance. It may also be for their in- terest that an unincumbered title to the property be made, and to that end that prior incumbrances be discharged. We have just seen that not only the mortgager, but the subsequent mortgagee, has a right to redeem all prior mortgages. If by thus redeeming he would acquire a right to strict foreclosure, unless repaid the amount advanced as well as his own demand, in such case, although he may not in fact redeem, if he can show an interest in having the property sold and a complete title made, he should be permitted to take an order to sell and pay the incumbrances in their proper order. Curtis, J., upon this subject, says:^® "We consider the true rule to be that, where it is the object of the bill to procure a sale of the land, and the prior incumbrancer^" holds the legal title, and his debt is payable, it is proper to make him a party, in order that a sale may be made of the whole title. In this sense, and for this purpose, he may be correctly said to be a necessary party — that is, necessary to such a decree. But it is in the power of the court to order a sale subject to the prior incumbrance — a power which it will exercise in fit cases. And where the prior incumbrancer is not subject to the jurisdiction of the court, or cannot be joined without defeating the jurisdiction, and the validity of the incum- brance is admitted, it is fit to dispense with his being made a party." Mr. Kent says that the better practice is to make all other incum- brancers parties, whether prior or subsequent, in order to prevent a multiplicity of suits, and to make a perfect title." 19 In HAGAN v. WALIvER, 14 How. 37. 20 [Strictly, a prior mortgagee is not a proper party to an action by a junior mortgagee, becaiise tlie proper object of tlie action is to bar the equi- ties of the mortgagor and rights accruing subsequent to the mortgage. Foster y. Johnson, 44 Minn. 290, 46 N. W. 350; Emigrant, etc., Banli v. Goldman, 75 N. Y. 127; Strobe v. Downer, 13 Wis. 10.] 21 4 Kient, Comm. 1S4, 185. (162) CH. VIII.J DEFENDANTS IN EQUITABLE ACTIONS. § 101 § 101. Continued — Subsequent Incumbrancers, and others.^ Subsequent incumbrancers should be made parties; otherwise, their rights will not be affected by the foreclosure.^^ It has been 22 [Shall the wife of the mortgagor he made a party? Upon this question there is some conflict of authority in the various states, depending upon the wife's right of dower. Generally, in an action to foreclose, no person's in- terests are affected, unless he is made a party to the suit. In an action to foreclose a mortgage given for purchase money, the general nile is that the wife need not be joined. FLETCHER v. HOLMES, 32 Ind. 497; Short v. Raub, i;i HI. 509; Stephens v. Bichnell, 27 111. 444; Amphlett v. Hibbard, 29 Mich. 298; Shelden v. Warner, 45 Mich. 638, 8 N. W. 529; Stow v. Tifft, 15 Johns. 458; Foster v. Hickox, 38 Wis. 408. Conti-a: Selden, J., in JIILLS v. VAN YOORHIES, 20 N. Y. 412, in discussing this question, says: "If she has such an interest, however remote, then, upon the plainest and most familiar princi- ples, that interest cannot be affected, unless, by virtue of some statute, by a suit in equity to which she is not a party. This is not only well settled by au- thority, but results from the simplest and most obvious principles of justice. * * * It is entirely clear, therefore, that, if the wife of one who owns real •estate subject to a mortgage given for purchase money has any inchoate dower rights at all in respect to such property, these rights, unless by virtue of statute, could not be affected by foreclosure suit to which she is not made a party; and a purchaser under such a foreclosure would not obtain an un- incumbered title. That she has rights of this description, under the prin- ciples uniformly applied to mortgages in this country, is, I think, too clear to be denied." MAY v. FLETCHER, 40 Ind. 575. The wife is a necessary party defendant in the foreclosm-e proceedings, if she has joined in the ex- ecution of the mortgage, if it is desired to bar her rights. Foster v. Hickox, 38 Wis. 408; Ketchum v. Shaw, 28 Ohio St. 503; McArter v. R-anklin, 15 Ohio St. 485, 16 Ohio St. 193. In case the mortgagor dies before foreclosure or pending suit to foreclose, the widow should be made a defendant. Zaegel v. Kuster, 51 Wis. 31, 7 N. W. 781. In those states where the interests of husband and wife are separate and independent as to the property they respectively own, the husband need not be joined in a foreclosure suit on the wife's property. Thornton v. Pigg, 24 Mo. 249. Aliter, Andrews v. Swan- ton, 81 Ind. 474.] 23 ANSON V. ANSON, 20 Iowa, 55; NEWCOMB v. DEAVEY, 27 Iowa, 381. "Subsequent incumbrancers are not bound, because their interests would, oth- erwise, be concluded without any opportunity to assert and protect them." Story, Eq. PI. § 193, and cases cited; [Stiinbrough v. Daniels, 77 Iowa, 561, 42 N. W. 443; Williams v. Brownlee, 101 Mo. 309, 13 S. W. 1040.] (163) § 102 OF THE ACTION. [I'AKT I. said that subsequent incumbrancers are not indispensable parties,, and this is true. The proceeding is not thereby void, it wiU con- clude those who are parties to it, and the purchaser at the sale will talte the rights of the plaintiff as though his mortgage had been assigned to him without foreclosure.^* He also takes the estate of the mortgager which he held at the date of the mortgage ; ^^ so that he becomes the assignee of the parties to the suit. The- subsequent mortgagee, not having been made a party, may still redeem or foreclose, but he must redeem of the purchaser at the sale; or, if he should sell under foreclosure, the sale would be sub- ject to the rights of the purchaser as assignee. And yet the equity of the mortgager is not entirely gone. He' is still indebted to the subsequent mortgagee, and is under obliga- tion to pay the debt. By paying this debt he is held to become the- assignee of this mortgagee's right of redemption, and may redeem his estate by paying off the first incumbrance, notwithstanding the sale.-" If a mortgage be given as collateral security for another mort- gage, upon a bill to foreclose against the principal mortgager, the collateral mortgager should be made a party; for he is interested in the accounting, and has a right to redeem.^^ Judgment creditors who have a lien upon the property, whether the judgment be prior or subsequent to the date of the mortgage,, stand in the relation of other lien holders, and should be made par- ties.^' In Indiana, both prior and subsequent mortgagees have been spoken of as rather proper than necessary parties.^" § 102. Continued — In case of Death of, or Assignment by, Mortgager. Upon death of the mortgager, the heirs are necessary parties, for the equity of redemption, being an interest in the realty, de- 24 Vanderkemp v. Shelton, 11 Paige. 28. 25 Montgomery v. Middlemiss, 21 Cal. 103; GRATTAN v. WIGGINS, 23 Gal. 16. 28 Goodman v. White, 20 Conn. 317. 27 Story, Eq. PI. § 194; Stokes v. Clendon, 3 Swanst. 150. 28 KOLLESTON v. MORTON, 1 Dra. & War. 171. 29 Pattison y. Shaw, 6 Ind. 377; Wright v. Bundy, 11 Ind. 308. (164) ■ClI. VIII.] DEFENDANTS IN EQUITABLE ACTIDXS. § 1U3 «cends like land.'"' But it is not necessary to join his personal representative unless some special interest can be shown, or a personal liability is sought to be enforced,^i or the land— as in California — vests in such representative for the purposes of ad- ministration.^^ In ease of sale by the mortgager, the same rules govern as in other cases. If the sale be absolute, if there is no personal lia- bility on his part, and he has no interest further, it is improper to malie him a party. But there is usually a personal obligation, and he is interested in the accounting. If the sale has been sub- ject to the mortgage, he is interested in seeing that the security is so far realized as to leave no personal charge, if it has been abso- lute, he is interested in reducing the charge for which he may be responsible to his vendee. If the petition be for foreclosure merely, it is generally held to be unnecessary to make him a party.^^ § 103. Continued — Other interests. The principle governing the pleader in making parties has been •so often indicated that, in proceedings to enforce liens, whether by mortgage or otherwise, he can hardly blunder. If it is for his Interest to sell the property and make a complete title, "all persons interested in the estate at the time the suit is instituted to enforce the mortgage, whether the purchasers, heirs, devisees, remainder- men, reversioners, or incumbrancers, should be made parties, or their rights will not be affected. The same is true as to suits to 20 story, Eq. PI. § 106. 31 Story, Eq. PI. §§ 175, 100. In a petition to redeem, presented by the heir, the administrator of the estate of the mortgagor, as well as that of the mort- gagee, is a necessary party (ante, § 00); and Judge Story treats the practice of dispensing with the presence of the administi-ator of the mortgagor, in a petition to foreclose, as a departure from principle. Story, Eq. PI. 175. As the heirs may looli to the personal assets for the payment of the debt, the personal representative would seem to be affected by the decree, and to malie 3. complete settlement of the matter should, with the heir, be brought into -court. 32 Harwood v. Mai-ye, 8 Cal. 580. S3 Story, Eq. PI. § 107; Bigelow v. Bush, 6 Paige, 343; Delaplaine v. Lewis, 19 Wis. 476; Stephens v. Muir, 8 Ind. 352. (165) § 105 OF THE ACTION, [PAKT I. enforce mechanic's liens." " In speaking of these different classes of persons who should be made parties, the court could have referred to those only over whose interests the court, by virtue of the mort- gage or the lien, could exercise control; for it is not to be sup- posed that if one should mortgage his life estate, the remainder- man or reversioner would have any interest in the foreclosure. In speaking of parties in actions upon mortgages I have assumed that the common law prevails in respect to their legal effect. The present tendency is to disregard the letter of the mortgage and treat it as but creating a lien, as conveying no legal title, only a right to be enforced by sale. That view, when established, may modify the doctrine of the text,. for no one should be brought into court unless he has, or claims, an interest in the property or in the fund. § 104. Statutory Foreclosure. There are enactments in the different states in regard to mort- gages and their foreclosure, some of which prescribe the practice. So far as they vary from the equity practice in regard to parties — and some of them do ^''— in statutory foreclosures the pleader must conform to the express or implied requirements of the statute in force. The plaintiff, ordinarily, has his election whether to bring the statutory action, if a specific form of action be provided for by the statute, or to sue under the Code,^° and in the latter case the equity rules in regard to parties still prevail. § 105. Where the Liability is joint — The Equity Eule. I have already considered the rules requiring all who are united in interest to be joined as defendants, except in a few states named, and I recur to the subject in this connection because of a modifica- si Whitney v. Higgins, 10 Cal. 547, cMing 4 Kent, Comm. 185, and Haines v. Beach, 3 Johns. Ch. 459. In an action to enforce a mechanic's lien, a pur- chaser of the property before suit, is a necessai-j' party. Holland v. Jones, 9- Ind. 495. 35 As in Missouri, where neither the incumbrancer nor the heir can be made parties unless upon their own motion. See Thayer y. Campbell, 9 Mo. 280; Hull v. Lyon, 27 Mo. 570; Perkins v. Woods, Id. 547. 36 Thayer v. Campbell, supra. (166) CH. VIII. J DEFENDANTS IN EQUITABLE ACTIONS. § 105 tion of the rule as to joint obligors made by the courts of equity, which was unknown in the common-law courts. As we have seen," upon the death of any one under joint obliga- tions, leaving a surviving co-obligor or obligors, his personal repre- sentative could not be pursued; and in the common-law courts the action can be prosecuted only against such survivor or sur- vivors. The old rule of law was that death discharged the obli- gation, charging it upon the survivor or survivors only. This rule of law was so positive, and, at the same time, so inequitable to- wards the survivor and also the creditor, as both to forbid and invite the interposition of the court of equity. "Equity follows the law," and the chancellor had no power to directly set aside a rule of law, any more in respect to joint obligations than joint tenancies in the realty, merely because it was unjust. But if he could get jurisdiction upon other grounds, his authority would be exercised according to the dictates of reason, of natural law — that is, rules obviously just and generally so received — and thus his power to compel contribution among co-sureties and correct mistakes in written instruments enabled him to correct the wrong. Co-sureties are alike entitled to contribution, whether the obli- gation be joint or several. It is no part of the contract that each shall pay a portion, but each one is liable for the whole; and the equity of contribution is founded rather upon the principles of natural justice than upon the agreement.^* Being so founded, it will be enforced according to these principles, and not the accident of survivorship; hence, the representative of a deceased co-obligor is compelled to contribute his due proportion to any co-surety who may have paid more than his share of the demand.^" When, on the other hand, all the co-obligors are principals, when each has received the benefit of the contract, has enjoyed and ap- propriated its consideration — as, the money or property for which the undertaliing had been given — it is obvious that the original obligation, that to which the parties would be subject in the ab- sence of the specific agreement, would be several as well as joint. If the specific agreement, then, be so drawn as to be joint only, 3T Ante, § 92. *' Story, Eq. PI. § 493, and notes. 39 Story, Bq. PI. § 497. (167) § lOG OF THE ACTION. [PAKT I. equity will hold it to have been so drawn by mistake, will treat it as joint and several, and give relief accordingly.*" Hence arose the rule that the personal representatives of a de- ceased co-obligor can be charged in equity, although the obligation by its terms be joint, and they can be joined as defendants with the surA'irors. § 106. Continued— The Rule under the Code— Equity Rule Adopted. The important inquiry then arises, which rule should prevail under the new procedure; should the survivors alone be subject to suit, or should all be made defendants "who are united in inter- est," although, as to some, the interest is but a representative one? In the states of Kentucky,*^ Arkansas,*^ Iowa" and Missouri," such union is allowed by statute, in Connecticut by rule of court; *^ but in most of the code states there is no direct provision on the subject Whether, then, in a joint obligation, or in one made joint in effect by statute, as seen in the last chapter,*" the personal representatives of a deceased joint obligor can be united as de- fendants with the survivors, should depend upon the law of lia- bility. In ordinary joint obligations, every obligor is bound, and upon death, his estate, as much so as he would have been if living. The doctrine of survivorship only operates to change the forum; the liability is not changed. Under the code there is but one forum and one form of action, and there is no reason why a distinc- tion should be made between the survivors and those who may rep- resent such estate. The exception as to trustees, and perhaps as to partners, does not affect the question in its general application. The obligations of trustees are joint in fact, and the demand is only against the 10 story, Eq. PI. § 162. *i Bullitt's Code, § 27. *2 Gantt's Dig. 1874, § 4480; Mansf. Dig. 1884, § 4944. 43 Code 1873-80, § 2550, 44 Wag. St. 1001, § 7; Kev. St. 1879, § 3467. 45 Rule 1, under Practice Act 1S79. 46 Section 94. (168) •Lll. yui.] DEFENDANTS IN ICQUITABLE ACTIONS. § 107 living; and in partnerships, wMle the estate of each partner, both -deceased and survivors, is chargeable with the partnership liabili- ties, yet there is supposed to be a partnership estate from which they should be liquidated. The death of a partner dissolves the partnership, and the estate goes at once into liquidation in the hands of the survivors; their first duty is to provide for the liabili- ties of the firm, and like other administrators they hold the part- nership assets in trust for that purpose. § 107. The Decisions upon this Question. The preponderance of authority sustains the rule as unaffected by the Code, although I find the matter considered in but few states. Several cases have come before the New York Court of Appeals in regard to the joint liability of partners, and it is there held that the personal representative of a deceased partner cannot be sued by the creditor, either jointly or otherwise, if the debt can he collected of the survivors. It does not distinctly appear what would be the holding of that court in regard to the union as co- •defendants of the representatives of a deceased joint debtor with the survivors, in other than partnership obligations;- the distinc- tion is not made in the cases.^' In Iowa, previous to the statu- « VOORHIS V. CHILDS, 17 N. Y. 354, affirmed in Richterv. Poppenhausen, 42 N. Y. 373, and again affirmed in Pope v. Cole, 55 N. Y. 124, with tlie addi- tional ruling that the return by the sheriff against the sm-viving partners of "no goods" shows conclusively a right to proceed against the estate of the de- ■ceased, and that it is no defense that they had property which the sheriff did not find. It was also held that the creditor, by showing the insolvency of the survivors, may proceed at once against the estate of the deceased. Voorhis V. Childs is the leading case. The action was brought against the surviving partners and the executor of the deceased jointly, upon a partnership obliga- tion, and it was held to be a misjoinder of defendants. The opinion of SSlden, J., is elaborate, but seems to me not fully to appreciate the change made by the Code. It shows that, prior to its adoption, there was a conflict of opinion between the New York and English courts in regard to the remedial rights ■of the creditor upon the decease of a debtor partner, the latter holding that the creditor might proceed at once in equity against the estate of the de- ■ceased, while the former held that the estate could not be looked to so long as the debt could not be collected, by legal remedies, of the survivors; the Eng- iisb courts proceeding upon the theory that partnership obligations should be (169) § 107 OF THE ACTION. [PART I, tory authority to unite the personal representative with the living- party," its Supreme Court had held that there was nothing in the Code, which changed the common-law practice in this regard,*' California, in the earlier cases, conformed to the common-law view treated as joint and several, wtiile those of New York regarded them as joint only, with the legal incidents. The opinion proceeds to show that the Code has made no change in the law upon this subject: "It cannot be claimed that it (the Code) has altered the principles which govern the responsibility of the representatives of a deceased partnei- for the partnership debts, or the order of liability as between them and the surviving partnei-s. It contains not a word in indication of such an intent. The latter, therefore, are still primarily liable for the debts, and the estate of the deceased partner can only be re- sorted to in case of the inability to meet them." The learned judge speaks- of the difficulty of applying the rules of equity practice in regard to parties to causes where the issues are triable by jury, and labors to show that the main distinctions between actions at law and suits in equity are still pre- served. To this view it may be said, first, that inasmuch as it is based upon the rulings in that state before tlie adoption of the Code, in regard to the right of the creditor to pursue in equity the estate of a deceased partner be- fore having exhausted his legal remedies against the survivors, it will have little weight in those states that have followed the English decisions, and hold the personal liability of the partnership debtors to be unaffected by the death of either; second, the liability of the parties to a contract is measured by the terms of the agreement and its legal effect. Each partner binds himself and his representatives to respond to all partnership obligations, an(J with his separate estate. Is there any difference between the liability of the sur- vivors to a joint obligation and that of the estate of the deceased? Anciently, there was; but since equity has enforced contribution and made such estate Chargeable for its due share of the obligation, whatever the theory upon which it is done, there is none in fact. It makes no difference that, before the adop- tion of the Code, suitors were driven to a court of equity, and that, in one case, they might at once resort to its aid and pursue, at their option, the estate of the deceased obligor, or, in the other case, be compelled to collect the debt of the survivors, and force the latter to resort to equity to seek a contribution; in either case the estate of the deceased is bound for its due proportion. The Code but substitutes a direct proceeding for the awkwardness and indirection of the old; it goes only to the remedy, and does not affect the liability. The New York theory makes the deceased party a guarantor, so far as the cred- itor is concerned, instead of a co-obligor. 48 Ante, § 106. 49 Wapello Co. v. Bigham, 10 Iowa, 39; Childs v. Hyde, Id. 294; Pecker v Cannon, 11 Iowa, 20; Marsh v. Goodrell, Id. 474; Barlow v. Scott, 12 lowa.^ 63. (170) CH. VIII.] DEFENDANTS IN EQUITABLE ACTIONS. § 107' that the administrator could not be joined as defendant with the- surviving obligors, and for the old reason that one is charged de bonis testatoris and the other de bonis propriiSj^" and this was fol- lowed in Colorado." More recent cases, however, leave the matter in doubt.'^ In Indiana, on the other hand, in an action on a joint bond,, brought against the survivors and the administrators of deceased co-obligors, the court held the union to be sanctioned by the pro- vision of the Code abolishing the distinction between actions at law and suits in equity, and by the rule that one may be made a defendant who has, or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determina- tion or settlement of the question involved; the object of this rule being to enable the court to bring at once into court all the par- ties ha-^ang an interest in the controversy, to settle all their rights by a single litigation, and thereby avoid a multiplicity of suits.^= soHumphrys v. Crane, 5 Cal. 173; May v. Hanson, 6 Cal. 642; [Bostwick y'. lIcEvoy, 62 Oal. 496; Lawrence v. Doolan, 68 Cal. 309, 5 Pac. 484, 9 Pac. 159.] 51 Mattison v. CWlds, 5 Colo. 78. 52 In PEOPLE V. JENKINS, 17 Cal. 500, which was a suit upon a bond given by Brown, deceased, and others, it is remarked: "The point that an administra- tor on Brown's estate should have been appointed and joined as defendant is answered by the statute, which makes official bonds joint and several." Whether such joinder would have been sustained does not appear. In Bank of Stockton V. Howland, 42 Cal. 129, the court affli-ms the view taken in Humphrys v. Crane, as to the form of a joint judgment against the survivor and the administrator, declines to express an opinion as to whether an action would survive against his representative upon the death of a joint obligor pendente lite, but says, if it does not abate, the judgment should not be joint, but payable de bonis propriis as to the survivor, and de bonis testatoris as to- the representative. This intimation leaves the ruling in Humphiys v. Crane without any basis; for if a several judgment, as in equity, according to the- nature of the liability, can be rendered in one case, it can in the other. 53 BRAXTON V. STATE, 2.j Ind.82. The case was distinguished from Voor- his V. Childs, 17 N.y.354; as the latter v>-as an action to enforce a partnershiij- obligation, and the chief reason given for the ruling arose from the law of partnership. Braxton v. State was afterwards affirmed in Owen v. State, 25 Ind. 107, and in Myers v. State, 47 Ind. 293. It does not appear whether or not the joinder would have been sustained had the action been based upon a partnership obligation, the court might have defeiTed to the New York au- thorities, though in no State do we find the spirit of the Code more fully ap- (171) § 107 OF THE ACTION. [PAHT I. In South. Carolina, both upon joint liabilities and upon joint bonds and notes, tlie personal representatives of a deceased partner or co-obligor may be joined with the survivor. The common-law rule is held to be repealed by the CJode." In Ohio the union of the representative of the deceased joint debtor with the survivor as defendant, in the same action, is allowed, and is based upon a provision in the statute making the estate of such joint debtor lia- ble, as though the contract had been joint and several."^^ predated than by the Supreme Court of Indiana. I infer, however, other- wise, and in part because this court does not adopt the New York doctrine in regard to the joint liability of partners, but rather the English, holding the obligation of partners to be joint and several (Weyer v. Thornburgh, 15 Ind. 124), and that, upon decease of one of the partners, the partnership creditor may sue either the survivors or the representative of the deceased partner. JCimball v. Whitney, Id. 280. The right to join in an action the representative, personal or real, of a deceased joint debtor with the survivor is recognized in several other cases, though no distinct ruling is had upon the question. Baton V. Burns, 31 Ind. 390; Myers v. State, supra; Voris v. State, 47 Ind. 345; IMyers v. McCray, Id. 293.] 54 Trimmier v. Thomson, 10 S. C. 164; Susong v. Vaiden, Id. 247; Wiesen- fleld V. Byrd, 17 S. C. 106. 65 BURGOYNB v. OHIO LIFE INS. CO., 5 Ohio St. 586. [This was an action against the surviving maimers and administrator of a deceased malier of a promissory note, lianney, J., in discussing the common-law rule on this ques- tion, said: "By a settled rule of the common law, the death of one of the joint makers of an obligation extinguished all remedy at law against his estate. If the contract was joint, the action must be joint, and a joint judgment must follow. But as the same judgment could not be rendered against the survivor and the personal representative of the deceased party, the consequence was, that no action at law could be maintained against the personal representative, either jointly with the survivor or by a separate suit." He then quotes the following statutory provision, which bas been adopted In several of the code states: "When two or more persons shall be indebted in any joint con- tract, or upon a judgment founded upon any such contract, and either of them shall die, his estate shall be liable therefor, as if the contract had been joint and several, or as if the judgment had been against himself alone." This section of the statute, he continues, "effected an entire abrogation of the com- mon-law principle to which allusion has been made, and left the estate of the deceased joint debtor liable to every legal remedy, as fully as though the contract had been joint and several."] (172) €11 VIU.J DEFKNDANTS IN EQUITABI.E ACTIONS. § 108 § 108. In Suits for specific Performance. In suits for the specific performance of real contracts, brought either by the vendor or the vendee, wliile the parties to the contract are living, and no third persons have acquired an interest in the property or in the contract, doubts in regard to parties can hardly arise. If, however, after making the contract, either party has died, or if an interest has been conveyed, devised, or assigned by either, or if liens have been created, or if third persons claim to have otherwise acquired an interest, the question becomes more complex. By applying the touch-stone of interest — interest in the title and in the consideration — there will be little difficulty in its solution. Thus, upon death of the vendor, it takes both the heir or devisee and the personal representative ^^ to fully represent the deceased, to succeed to both his rights and liabilities — the latter as having a right to the purchase-money, and the former as the holder of the legal title;''' and, in an action by his representative for specific performance, the heirs of the vendor, if they do not unite as plain- tiffs, should be made defendants.^' Even if the vendor has died without having acquired the legal title, that will not execuse the administrator from uniting his heirs as parties;'" so if the vendee 58 [If tie vendee in a land contract dies, his heirs, if the purchase money has been paid, are the parties to bring the action for a specific performance. Webster v. Tibbits, 19 Wis. 438; McKay v. Broad, 70 Ala. 377. But when the action is one for damages growing out of the contract, the administrator or executor is the proper party plaintiff. Gardner v. Kelso, 80 Ala. 497, 2 South. 680; HiU v. Smith, 32 N. J. Eq. 473; Peters v. Jones, 35 Iowa, 512. For the same reason, if the vendor should die, his heirs should be made defendants in an action for specific performance by the vendee. Likewise his personal representatives in an action for damages. Morgan v. Morgan, 2 Wheat. 207; Townsend v. Champernowne, 9 Price, 130, and cases cited above.] " Stoiy, Eq. PI. § 160. 58 Story, Eq. PI. §§ 160, 177; Mitchell v. Shell, 49 Miss. 118. 59 Roberts v. Marchant, 1 Hare, 547. "The purchaser, when he is sued for the specific performance of his contract, is entitled to have the question of the validity of that contract decided (if it is to be decided) in the presence of the vendor, or if the vendor should be dead, in the presence of all the parties who represent him; he is entitled, after the deatli of the vendor, to the same (173) § lOS OF THE ACTION. [PAKT I. shall have died, in a like action, both his heirs or devisees and per- sonal representatives must be made parties.'" On the other hand, if the contract is sought to be enforced against the vendor, the vendee having died, his heirs, as succeeding to his equitable interest in the land, or the devisees of the land, are the proper parties plaintiff," and all others having adverse interests should be made defendants; as, the personal representative of the purchaser, inasmuch as he is under obligation to pay for the land out of the assets,'^ and the vendor or his heirs, inasmuch as he or they are the holders of the legal title,°= also his personal repre- sentatives, inasmuch as "they are the parties who not only receive, but who are to settle or contest, as the case may be, the amount to be paid by the vendee in fulfillment of his contract." °* It would seem that if the petition showed that the contract had been paid in fuU, so that the vendor's heir became but a trustee for the purchaser, the presence of his administrator might be dispensed with, and yet that fact could not be conclusively found against him unless he were made a party. If part of the vendor's heirs have already conveyed their interest to the purchaser, in an action for the interest of the other heirs, benefit from the suit, by obtaining decree conclusive of the question, as he would have had if the vendor were living. * * * The circumstance that the legal estate was outstanding in another person makes no difference.'' See .next section. 60 Stoi-y, Eq. pi. § 160. 61 Bucli V. Buck, 11 Paige, 170. 62 Story, Eq. PI. § 177. 63 MORGAN V. MORGAN, 2 Wheat. 290; Moore v. Hurrah, 40 Ala. 573; Judd -V. Mosely, 30 Iowa, 423. The Iowa statute (Codes 1873 and 1880, § 2487) pro- vides that, "where a person under obligation to convey real estate as might have been enforced against him if living, dies before making a conveyance, the court may enforce the specific performance of such contract by the ex- ecutor, and require him to execute the contract accordingly." Notwithstand- ing tlie power thus given the executor, in Judd v. Mosely the court held that the heir was a necessary party, while the personal representative may be dis- i)ensed with— that is, the statute need not be followed, is only directory. As to dispensing with the personal representative, it is probable, though the fact does not appear, that the contract had been paid in full, and the latter had no interest. e-i POTTER v. ELLICE, 48 N. Y. 321. (174) •CH. VIII.J DEFENDANTS IN EQUITABLE ACTIONS. § 109 it is not necessary to make the former parties.'" If the purchaser has paid in full, but has received no conveyance, and assigns his contract to the plaintiff as collateral security, and dies, in a pro- ceeding by the assignee to enforce his equity the heirs of the assignor are indispensable parties, <=" and the defect of parties being such as to leave the judgment without foundation, it will be reversed lor that reason. § 109. Continued — As to outstanding Titles. In a bUl for specific performance, the equity rule and its basis, in regard to the adjustment of rights and interests outstanding at the -date of contract, are thus stated by Lord Cottenham: "It is not disputed that, generally, to a bill for specific performance of sale, the parties to the contract are the only proper parties; and when the ground of the jurisdiction of courts of equity in suits of that kind is considered, it could not be otherwise. The court assumes jurisdiction in such cases because a court of law, giving damages only for the non-performance of the contract, in many cases does not afford an adequate remedy. But in equity as well as at law, the contract constitutes the right and regulates he liability of the par- ties; and the object of both proceedings is to place the party com- plaining, as nearly as pos'sible, in the same situation as the defend- ant had agreed he should be placed in. It is obvious that persons strangers to the contract, and, therefore, neither entitled to the right nor subject to the liabilities which arise out of it, are as much strangers to a proceeding to enforce the execution of it as they are to a proceeding to recover damages for the breach of it." °^ The language used in the cases, that in bills of this nature "the parties to the contract are the only proper parties," must be held to apply to them while living, and while holding the same relation to -each other and to the property as when the contract was made; for 65 Barnard v. Macy, 11 Ind. 536. 66 MUIR V. GIBSON, S Ind. 187. 67 Tasker v. Small, 3 Mylne & C. G3. See, also, Wood v. White, 4 Mylne & O. -460; Robertson v. Great Western R. Co., 10 Sim. 314; Mole v. Smith, Jae. 400; 1 Daniell, Ch. PI. & Pr. (3d Am. Ed.) 224. The language of Lord Cotten- ham in the text 1& quoted approvingly in Chapman v. West, 17 N. Y. 125. (175) § 109 OF THE ACTION. [PART I. if either party shall have died, their proper representatives must be made to appear for them, under the rules already given, nor can the case be disposed of without the presence of those acquiring subse- quent interests. Says Chancellor Kent:^* "It is well settled that if A. enters into a contract to sell land to B. and afterwards refuses to perform his contract and sells the land to 0. for a valuable con- sideration, B. may, by bill, compel the purchaser to convey to him, pro- vided he be chargeable with notice at the time of purchasing, of B.'s equitable title under the agreement. » * * The rule which affects the purchaser is just as plain as that which would entitle the vendee to a specific perfonnance against the vendor." "' "The rule is," says the Supreme Court of Alabama, "that where a specific execution of a contract would be decreed between the original par- ties to it, that it will also be decreed between all parties claiming under them by assignment or in privity of estate, unless some new equity in. favor of the assignor intei'venes, and he insists upon such equity in bar of a specific execution of the contract." '" If, then, after having entered into a contract for the sale of land, the vendee shall convey the property to a third person, in a suit by the first vendee for the specific performance of the agreement, the person to whom it has been conveyed, as well as the vendor, should be made defendant;'^ so if the vendor has made a new contract to sell." It is held that all those through whom the contract may have passed by assignment should be made parties,^* although if the assignment is absolute, and if it leaves no interest in the inter- mediate parties, they need not be brought into court.^* If, after the commencement of the suit, the obligor shall convey the legal titl& to a third person, such person may be made a party by supplemen- 68 Champion v. Brown, 6 Jotins. Ch. 398. 69 In the following English cases, among others, real contracts were spe- cifically enforced against the vendor and a subsequent purchaser with notice. Spence v. Hogg, 1 Colly. 225; Outts v. Thodey, 13 Sim. 206; Potter v. Sanders, 6 Hare, 1. '0 McMon-is v. Crawford, 15 Ala. 271. See, also, Hays v. Hall, 4 Port. 374. 71 Daily v. Litchfield, 10 Mich. 29; Stone y. Buckner, 12 Smedes «Sr, M. 73. '2 Fullerton v. McOurdy, 4 Lans. 132; Morris v. Hoyt, 11 Mich. 9. 73 Estill's Heirs v. Clay, 2 A. K. Marsh, 497. 74 Currier v. Howard, 14 Gray, 511. (176) CIl. VII I. J DEFENDANTS IN EQUITABLE ACTIONS. § 109a tal petition;^' but the obligor will have no right to complain if it is not done/' The assignee of the vendor in bankruptcy, if the con- sideration has not been all paid, so that by the assignment he ac- quires an interest in the contract, must also be made a party." And it has been also held, generally, that all who have become interested in the contract, or in the property, as judgment creditors,'^ or by transfer or assig-nment of the whole or any part of it,'" must be made parties. The principle is, that in seeking specific performance, the plaintiff has a right to be placed in the position for which he had contracted, and that can only be done by removing the obstacles placed in his way since the contract was made. § 109a, Trusts — ^First, in Actions by Beneficiaries for breach of — General Rule as to Parties. It may be premised that in actions affecting the title to property held in trust, or any interest in respect to it, or where the liability, or its extent, depends upon the relation of the trustee, or trust es- tate, to third persons, the question as to whether the trustee, or the beneficiaries, or third persons, should be made parties will depend upon their interest in the subject-matter of the action, or in the re- lief which is sought; the principles heretofore considered will gov- ern. All parties in interest, those whose rights will be affected by the judgment, must be brought into court, nor will the court suffer a cause of action to be split, as it were, so as to leave the same ques- tions in respect to the same matter to be again litigated by other parties. But those whose interests wiU not be affected by the pro- ceedings are not necessary parties, although they may be proper ones, as we have heretofore seen.*" 75 Oasady v. Scalien, 15 Iowa, 93. 7« Goddin v. Vaughn, 14 Grat. 102. TT Swepson v. Rouse, 65 N. O. 34. 78 Seager v. Burns, 4 Minn. 141 (Gil. 93). 79 Agard V. Valencia, 39 Oal. 292. I have in this connection, cited cases In equity and under the Code as equally relevant This is a question of subslance, not of form. 80 Ante, §§ 96, 100. BLISS CODE PL. 12 (177) § lO.Ja OF THE ACTION. [PART I. The equity rules prevail. If the suit concern projperty, we are ,not to inquire alone who has the strict legal title, but who are the parties in interest. In actions between trustees and any of their beneficiaries "the general rule is that all the trustees and all the cestuis que trust must be before the court either as plaintiffs or de- fendants." " Thus, in actions by beneficiaries for breach of trust, all the trus- tees ^2 should be made parties notwithstanding their several liabili- ties, chiefly for the reason that they are liable to contribution among themselves^ and the judgment in favor of the beneficiary should bind them all. If not made parties the whole matter may be again litigated.^'' The exceptions are when the breach of trust is in the nature of a tort, where there is no liability to contribution, or where the party omitted is but a nominal trustee, having been discharged or having disclaimed,^* or where one seeks an account of so much of a trust fund as is in the hands of a particular trustee,^^ 81 Perry, Ti-usts, § 875; [Story, Eq. PI. § 207; Sears v. Hardy, 120 Mass. 524.] 82 [And it has been held that, if any of them are deceased, their personal representatives must be joined with those surviving. Petrie v. Petrie, 7 Lans. W; Sherman v. Parish, 53 N. Y. 483. [Suit by a Stranger against the Trustee. [In a suit by a stranger against a trustee to defeat the trust altogether the cestui que trust is not a necessary party defendant if the powers or duties of the trustee with respect to the execution of the trust are such that those for whom he holds will be bound by what is done against him as well as what is done by him. Vetterlein v. Barnes, 124 TJ. S. 1G9, 8 Sup. Ct. 441; Rogers v. Rogers, 3 Paige, 379; Hunt v. Weiner, 39 Ark. 70; Winslow v. Minnesota & P. R. Co., 4 Minn. 313 (Gil. 230). In this last case the court said: "It is a gen- eral rule in equity that all persons materially interested, either legally or ben- eficially, in the subject-matter of the suit, are to be made parties to it either as plaintiffs or defendants, however numerous they may be, so that there may be a complete decree, which shall bind them all. But to this rule there are numerous exceptions." And it is held that the expression, "aU persons interested must be parties to the suit," does not extend to all persons who may be consequentially interested. Calv. Parties, c. 1, § 2; Story, Eq. PL §§ 149, 216; Franco v. Franco, 3 Ves. 75; McArthur v. Scott, 113 U. S. 340, 5 Sup. Ot. 652; Hill V. Durand, 50 Wis. 354, 7 N. W. 243.] S3 Story, Eq. PI. § 210; Perry, Trusts, § 876. 84 Perry, Trusts, § 876. 85 Story, Eq. PI. § 214. (178) CH. Vni.] DEFENDANTS IN EQUITABLE ACTIONS. § 1096 or where the petition otherwise shows that such omitted parties have no interest in the controversy.*' In such actions his co-beneflciaries should also be made parties, and the reason given is that the rights of all should be ascertained, so that further litigation may be avoided and the trustee be not twice vexed with suit for the same alleged wrong.*^ A more gen- eral reason is that all the beneficiaries are interested in the fund and in the accountings. In respect to the property, they, and not the trustees, are the real owners, and, whether or not there has been a breach, may depend upon the title of different beneficiaries, a title perhaps contested between those in respect to whom the trustee may have acted in good faith.*' When, however, one beneficiary is en- titled to a specific sum, or to an aliquot part, and his co-beneficiaries can have no interest in the result, they should not be made parties. Also, when great inconveniences would arise from requiring all to be brought into court, a few may be permitted to sue for themselves and for others in the same interest, describing but not naming the others.*' § 109&. Same — In other Actions affecting. In other actions it may not be so easy to determine the question, although the touch-stone of interests should decide it. The general rule is that in all actions affecting trust property, of whatever kind, or affecting, or that arise from trust relations, both the trustee and the beneficiaries should be made parties as well as all others having an interest in the property, or in the trust whose interest would be affected by the judgment, or without whom full relief cannot be given, or full defense be made."" I speak not now of actions by "trustees of an express trust," whose duty it is to protect the trust estate, and who are required to sue in their own name,"^ but to ac- tions for wrongs, in respect to trust property or trust relations, 86 story, Eq. PI. § 214a. 87 Perry, Trusts, § 8S1. 88 See Story, Eq. PI. § 207, and notes. 89 Story, Eq. PI. §§ 207a, 207b; ante, § 79. »o [McArthm- v. Scott, 113 U. S. 340, 5 Sup. Ct. 652.] »i See ante, §§ 54, 55; [Wright v. Bundy, 11 Ind. 398.] (179) § 1096 OF THE ACTION. [PAKT I. whether affecting title, enjoyment, or obligations or disabilities springing out of it or them. To this rule there are many exceptions, and they arise chiefly where the parties are assumed to represent other parties in interest. Thus the personal representative represents the general creditors and trustees for the payment of debts and may sue or be sued with- out bringing the creditors into court. But otherwise if the trust is for specific creditors, they must be named and made parties and are not so represented by their trustees as to be bound by a judgment against them.'^ So the trustees of a joint fund raised by subscrip- tion, who had properly mortgaged the property purchased by them in trust, were held to represent the subscribers on a petition for a sale under the mortgage."^ A tenant in tail in being also repre- sents all subsequent estates and interests,^^ even that of a remain- der-man contingent upon the failure of the issue named. But ordi- narily all persons in being having expectant interests should be made parties. Assignees in bankruptcy usually represent the cred- itors, and like the personal representative, sue and may be sued without naming them. There are also exceptions to the general rule which demands that trustees should be made parties, and the most prominent one is where the trust is a mere nalced one, without any estate vested in the trustee, or any charge against him, as in case of a broker or agent, an auctioneer, steward, etc.°^ So, in an action for the spe- cific performance of a contract, whether, in respect to its subject- matter, there may or may not be a trust, the proper parties are in general the parties to the contract only."" An action for possession of trust property may be brought against a stranger by the one enti- tled to the possession without involving other than the possessory title, and so for a mere trespass, in which case the wrong-doers will ordinarily be the only defendants. So those who have demanus prior to the creation of the trust may enforce them against the trus- tees without bringing in the beneficiaries, if the trustees have the 02 Story, Eq. PI. §§ 149, 150. 03 Van Vecliten v. Terry, 2 Johns. Cli. 197, cited in Story, Eq. PI. § 143. »i Story, Eq. PI. § 144. »5 Story, Eq. PI. § 231. 08 Ante, §§ lOS, 109. (ISO) <-H. VIII. J DEFENDANTS IN EQUITABLE ACTIONS, § llOtt absolute disposition of the property. But if they have no such pow- er, as in case of trustees to convey to certain uses, the beneficiaries must be made parties.^^ § 110. Multifariousness or Misjoinder by an improper Union of Defendants. In equity pleading, multifariousness applies to an improper join- der of distinct and independent matters,"^ and often involves the improper union of defendants, inasmuch as one defendant, or class of defendants, may have an interest in one of the matters improper- ly united and not in the others, and hence should not be called on to answer in respect to them. § 110a. Who may be united without a joint interest. Those may be united as defendants, although they may have no joint interest, between whom there is a common point of interest. '^Where several persons, although unconnected with each other, are made defendants, a demurrer will not lie if they have a common interest centering in the point of issue in the cause." °' As in a creditor's bUl, when the debtor had conveyed lands in fraud of creditors, and the title to different parcels had passed to different persons, they may all be joined as defendants in one action, for " Story, Eq. PI. § 149. 98 story, Eq. PI. § 271; [Fellows v. Fellows, 4 Cow. 682; Saxton v. Davis, 18 Ves. 80. Lord Eldon said that: "Seeking to enforce different demands against persons liable respectively, but not as connected with each other, in the same bill, is clearly multifarious. This statement has been criticised, and it has been maintained that it would be better to speak of this as a misjoinder." Campbell v. Mackay, 1 Mylne & C. 618; Newland v. Rogers, 3 Barb. Ch. 432.] 89 Fellows V. Fellows, 4 Cow. 682. See, also, Varick v. Smith, 5 Paige, 137. [Hamlin v. Wright, 23 Wis. 491. This was an action brought by the receiver to set aside several deeds against several defendants, alleged to be fraudu- lent. Paine, X, said: "The object of such a suit is to reach the property of the debtor, and the fact that all the grantees have become accessoi-y to the fraudulent attempt of the debtor to place his property beyond his cred- itors' reach gives them such a common connection with the subject-matter of the suit that they may be joined, although the purchase of each was distinct from the others, and each is charged only with participating in the fraud in respect to his own purchase." There was therefore no misjoinder of parties or causes of action.] (1SI) § liOa- ' OF THE ACTION. [PAET I. they all have an interest in respect to the fraud."" So, in an ac- tion by a principal against his agent, who, with the plaintiff's money, had purchased property, and, without consideration, had conveyed it, part to one co-defendant and part to another, the complaint was held to be not multifarious."^ A widow, in a peti- tion to set aside gifts made by the husband in view of death, in order to defraud her of her dower, may make all his grantees par- ties although their interests are distinct,^°^ and a distributee of an estate, in pursuit of a fund which has come into the hands of a trustee under a will, should make parties of the other distributees and residuary legatees.^"^ < In a proceeding to set aside sales of city lots made by an adminis- trator, and for an accounting, the heirs should join as defendants the several purchasers" of the lots.^"* A bill for foreclosure which makes parties of sundry persons for the purpose of cutting off their equities is not, for that reason, multifarious.^"' In the Supreme Court of the United States,^"" the right is shown to join all who claim real or personal estate under one title, although by distinct and separate sales, when each sale was not only wrongful, but in- volved the consideration of the same question, to wit, the authority under which they were made. But no one will be made defend- ant whose presence or absence will not affect the judgment as between him and the plaintiff.^"' 100 Winslow V. Dousman, 18 Wis. 456; North v. Brad way, 9 Minn. 183 (Gil. 169); Howse v. Moody, 14 Fla. 59; Donovan v. Dunning, 69 Mo. 436; Bobb v. Bobb, 76 Mo. 419. 101 BLAKE V. VON TILBORG, 21 Wis. 672. See, also, Bassett v. Warner, 23 Wis. 673, where the subject is discussed. 102 Tucker v. Tucker, 29 Mo. 350. 103 Dillon V. Bates, 39 Mo. 292; Goodwin v. Goodwin, 69 Mo. 617. 104 Bowers v. Keesecher, 9 Iowa, 422. The opinion says: "The defendants in this instance aU derive their interest from Snow, as the administrator of Bowers. The object of the bill was to have determined the right of Snow, as administrator, to make the sale of the lots; and as the defendants were jointly interested in the determination of this question, it was proper that they should be made joint defendants." 100 Grelther v. Alexander, 15 Iowa, 470. 108 In Gaines v. Chew, 2 How. 619. 107 State V. Wright, 50 Conn. 580. See upon this subject Young v. Young, 81 N. C. 91; DeWolf v. A. & W. Sprague Manuf'g Co., 49 Conn. 282, aid cases cited. - - (182) GH. VIII.J DEFENDANTS IN EQUITABLE ACTIONS. § Ilia § 111. Parties in other Actions. To speak in detail of the necessary, or of the proper parties in the various actions of an equitable nature would unduly extend this portion of the present work. The cases which have been given clearly illustrate the rules. Keeping in view the object of the action, understanding the interest and claim to be affected, remem- bering that the rights of no one can be concluded until he shall have had an opportunity to be heard in regard to them, and noting, fur- ther, that courts wiU discourage many suits where one will suffice, that they wiU not give remedies by piecemeal, but will require such persons to be brought into court as will enable them to make a full and complete settlement of the questions involved, the pleader, in this regard, will be seldom wrong. Another illustration wUl show when a party should be brought in who is not to be charged. As will be hereafter seen ^°' when one, for a good consideration, has promised a debtor to pay his debt, the creditor may maintain an action for the deblf in his own name. But if the promise be general — as, to pay all the debtor's obligations out of property turned over to him — and the amount of the debt sued on was not specified, and has not been liquidated by judgment, in an action against the promisor, the debtor should also be made a party, as interested in the question of liability and its amount.^"* In a common-law action this cannot be done, for no one is made defendant unless he is to be charged with the debt. But in equity and by the code, all are to be brought in who are interested although the demand be for money only and be not against them. § Ilia. Whether one should be made Plaintiff or Defendant. In actions of an equitable nature when diverse interests are in- volved, the pleader may not at once see whether a party should be 108 Section 241. 109 Hardy v. Blazer, 29 Ind. 226; Durham v. BishcofE, 47 Ind. 211; [Davis V. Hardy, 76 Ind. 272.] (183) ^ Ilia OF THE ACTION. [PAKT I. united as plaintiff or be treated as an antagonist The rule ap- plicable to all pleading is given in the Code in these words: "Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants," followed by the permission to make defendants of unwilling plaintiffs;"" so that where there are more than one having the same interest and who are necessary parties, one of them cannot bring an action making the others de- fendants unless they refuse to unite as plaintiffs; nor can those having adverse interests unite as plaintiffs. To illustrate: While different mortgagees cannot unite in a bill to foreclose, inasmuch as they are not united in interest, if a single mortgage, or the obligations secured by it, are assigned to more than one, they must unite, for their interest is the same. In the first case the interests of the different mortgagees are distinct from each other, and perhaps adverse; in the last they depend upon the same deed, and that which affects its validity as to one would affect it as to all. The adjustment of their rights as between them- selves is provided for in the clause in regard to judgments.^^^ So in a petition for the specific performance of a real contract, where 1'he vendee has sold the property embraced in the contract by par- cels and to different persons, the purchasers of all the parcels are united in interest as assignees, and should unite in the petition. The difference between plaintiffs and defendants in respect to their relations, is this: While persons, to join as plaintiffs, must have a joint interest or a common interest, this is not required of defendants; for all whose interests are adverse to that of the plain- tiff must be made defendants, and all who have an interest in the subject of the action may be made defendants. 11" See ante, CJode references in section 61. Ill [The common-law rule that, where a joint contract is the subject of an action, the recovery must be against all or neither of the defendants, has been modified under the Code, and the equity rule adopted; so that now a judgment may be given for or against one or more of several plaintlfCs, and for or against one or more of several defendants; and by the judgment the court may determine the ultimate rights of the parties on either side, as between themselves, and grant to the defendant any aflirmative relief to which he is entitled.] (184) CJB. IX.] JOINDER OF CAUSES OF ACTION. § 112 CHAPTER IX. OF JOESTDER OF CAUSES OF ACTION IN ONE COMPLAINT OR PETITION. Section 112. The Joinder of Causes of Action— The Language of the Codes. 113. A Cause of Action— Facts constituting a Cause of Action— Mean- ing of the Terms— How may a Cause of Action arise? 114. Different Modes of Relief do not make different Causes of Action. 135. Continued— Further Illustrations. 116. Continued — The Judicial View. 117. The Causes of Action must be between the same Parties in the same Eight. 118. As to splitting a Cause of Action. 119. The several Causes of Action must be separately stated. 120. Continued— Where there are two Causes of Action and but one Relief, they may be stated in separate Counts. 121. Completeness of each Statement— Each Paragraph or Cause of Action must be good within itself. 122. The Causes of Action must be consistent. 12o. Each Party must be affected, and in the same Character, but not to same Extent. 124. Joinder under the Common Law and Equity Systems. 125. First Class: Union of Causes of Action under. Meaning of the Term "Transaction." 126. Continued— What is the Subject of the Action? 127. Second Class: Joinder of Causes arising out of Contract. 128. Implied Contracts. 129. Third Class: Injuries. 130. The Joinder when the Tort may be waived, 131. Fom-th Class: Injuries to Character. 132. Fifth Class: Ejectment 133. Replevin. 134. Claims against Trustees. (185) §^112,; OF THE ACTION, '• [PAKT- I. § 113. The Joinder of Causes of Action'— The Language of the Codes. "Th.e plaintiff may unite in the same complaint (petition) several causes of action, whether they be such as have heretofore been de- nominated legal or equitable, or both, when they all arise out of (1) the same transaction or transactions connected with the same sub- ject of action; (2) contract, express or implied; (3) injuries with or without force to person and property, or either; (4) injuries to char- acter; (5) claims to recover real property, with or without dam- ages for the withholding thereof; (6) claims to recover personal property, with or without damages for the withholding thereof; (7) claims against a trustee, by virtue of a contract or by operation of law.^ But the causes of action so united must aU belong to one ^ [Common- Lmo Rule. [All actions, at common law, may be joined where the parties are the same, and where the same form of plea may be pleaded and the same judgment be given in each. Cory ton v. Lithebye, 2 Saund. 115, 117a, note; Brown v. Dixon, 1 Term K. 276. A plaintiff may join all his causes of action in one declaration if in separate suits he could recover on each in the same form of action and on the same proofs. Tregent v. Maybee, 54 Mich. 226, 19 N. W. 962; post, § 124. [Equity Rule. [See post, § 124. ^IThe Test. [Haight, X, in Mahler v. Schmidt, 43 Hun, 512, after quoting section 484 of the New York Code, gives the test when different causes of actions may be imited as follows: "This provision of the Code is but declaratory of the rule that previously existed, and the test is whether or not the parties joined in the suit have one connected interest centering in the point in issue in the cause, or one common point of litigation." A judgment creditor may conse- quently bring an action to have a conveyance of the judgment debtor set aside '■ as fraudulent. He may also unite in the same action any person having liens upon the premises affected by the fraudulent conveyance; and, if the judgment debtor has incumbered the premises by false and fraudulent liens, such liens may be annulled; and if the debtor has placed in the bands of othters property to be covered up and hid, for the purpose of keeping it from being applied in payment of his debts, such persons may also be made parties, and the property followed. All such parties are interested in the (186) CH. IX. J JOINDER OF CAUSES OB' ACTION. § 112 of those classes, and must affect aU the parties to the action and not require different places of trial, and must be separately stated" (and numbered— Ohio and Kansas).^ The codes of Kentucky^ and of centering points in issue in ttie case. Tliey are all concerned in the common point of the litigation, which is the fraudulent transfer of the property of the judgment debtor into their hands for the pm-pose of defrauding his cred- itors. Ogden V. Wood, 51 How. Pr. 375. It was held in Wiley v. Keokuk, 6 Kan. 94, that an action for assault and battery and false imprisonment could be joined when growing out of the same transaction; also held in Brewer v. Temple (1857) 15 How. Pr. 286, that assault and battery and slander could be joined. Contra, Anderson v. Hill, 53 Barb. 238, 244, where Brewer v. Temple (1869) is overruled. Tort and contract may be joined when growing out of same transaction. Sturges v. Burton, 8 Ohio St. 218; also, legal and equitable causes. Id.; breach of warranty and fraud in sale of horse, 5 W. L. M. 37. Contra, Sweet v. Ingerson, 12 How. Pr. 331; reformation of con- tract and judgment. Globe Ins. Co. v. Boyle, 21 Ohio St. 119; penalty for ex- acting railroad fare and damages for ejection of passenger, Cincinnati, H. & D. R. Co. v. Cole, 29 Ohio St. 126; an action for judgment for money fraudulently taken and to have a lien declared upon real estate. File v. Springel, 132 Ind. 312, 31 N. E. 1054; slander and false imprisonment, Moore V. Thompson, 92 Mich. 498, 52 N. W. 1000; Harris v. Avery, 5 Kan. 146. False imprisonment and malicious prosecution may be joined if growing out of same transaction. Barr v. Shaw, 10 Hun, 580; Marks v. Townsend, 97 N. Y. 590. An action for specific performance of an agreement and dam- ages for breach of the same agreement may be joined. Stanton v. Missouri Pac. lly. Co. (Sup.) 2 N. Y. Supp. 298.] 3 Code Proc. N. Y. § 484; Rev. St Ohio, § 5019; Gen. St. Kan. par. 4106; Rev. St Mo. § 2040; Gen. St. Minn. c. 06, § 118; Consol. St Neb. § 4627; Rev. St Wis. 1878, § 2647; Code Civ. Proc. Gal. § 427; Gen. St Conn. § 878; Rev. St Idaho, § 4169; Gen. St Nev. § 3080; Code N. C. § 267; Code S. C. § 188; Comp. Laws N. D. § 4032; Comp. Laws S. D. § 4932; Rev. St. Wyo. § 2408. The New York Code of Civil Procedure of 1876 has made substantial changes in regard to the subject of this chapter. The provision, as above, contained in the original New York Code is the one generally adopted else- where, and the decisions under it will be hereafter given, both as being useful where the change has not been made, and in reference to what is substantially retained. The following is the later classification in New York: "Section 484, 4 Rev. St 1882, p. 97. The plaintiff may unite in the same complaint two Or more causes of action, whether they are such as were formerly denomi- nated legal or equitable, or both, where they are brought to recover, as fol- ♦ Bullitt's Code, g 83. (187) §112 OF THE ACTION. [PAUT I. Arkansas " omit the first class, and also the phrase concerning legal and equitable causes.' The other classes are substantially like those of the New York Code of Procedure, although differently numbered, and embracing as one class "claims for the partition of real or per- sonal property, or both." The Missouri and Connecticut Codes ex- tend the scope of the seventh class to claims by or against a party in some representative capacity, etc., and the Missouri Code adds, at the close, "with the relief sought for each cause of action, in such manner that they may be intelligibly distinguished." The Con- necticut Code' follows substantially the classification first above given, but puts the first class last. The codes of Indiana and Iowa, while upon this subject they radically differ from each other, also differ from those of every other state; the former, abolishing the distinction between legal and equitable causes of action, classifies those that may be united with special reference to the object of the action; the latter, preserving that distinction in its old prom- inence, allows the union of aU which are legal, and of all which are lows: 1. Upon contract, express or implied. 2. For personal injuries, ex- cept libel, slander, criminal conversation, or seduction. 3. For libel or slan- der. 4. For injuries to real property. 5. Real property, in ejectment, with or without damages for the withholding thereof. 6. For injuries to personal property. 7. Chattels, with or without damages for the taking or detention thereof. 8. Upon claims against a trustee, by virtue of a contract or by opera- tion of law. 9. Upon claims arising out of the same transaction or transac- tions, connected with the same subject of action, and not included within one of the foregoing subdivisions of this section. But it must appear upon the face of the complaint that all the causes of action so united belong to one of the foregoing subdivisions of this section; that they are consistent with each other," etc. These subdivisions are plain, but the last one, like the first in the old Code, will doubtless give rise to some controversy. s Gantt's Dig. 1874, § 4550; Mansf. Dig. 1884, § 5014. 6 They also provide that proceedings in a civil action may be either at law or in equity, and that the plaintiff may prosecute his action by equitable proceedings in all cases where corn-ts of chancery, before the adoption of the Code, had jiu-isdiction, and must so proceed in all cases where this jurisdiction was exclusive. BuUitt's Code, §§ 5, 6; Gantt's Dig. 1874, §§ 4453, 4454; Mansf. Dig. 1884, §§ 4917, 4918. This provision is also embraced in the Iowa Codes of 1873, 1880, 1886, §§ 2507, 2508. f Laws C6nn. 1879, p. 19, § 7. (188) ^"- IX. J JOINDER OF CAUSES OF ACTION. § 112 equitable.^ The codes of California," and of Nevada^" omit the phrase "whether they be such as have heretofore been denominated legal or equitable," omit the first class, add to the class embracing claims for the recovery of real property, etc., claims "for waste com- mitted thereon," places in distinct classes "injuries to persons" and "injuries to character," and provide that "an action for malicious arrest and prosecution, or either of them, may be united with an action for either an injury to the character or the person." It is held, however, in California that claims of a legal and of an equitable 8 The Indiana provision is as follows: "Sec. 70 (Rev. St. 1881, § 278). Tlie plaintiff may unite several causes of action in the same complaint when they are included in either one of the following classes: 1. Money demands on contract. 2. Injui-ies to property. 3. Injuries to person or character. 4. Claims to recover possession of personal property, with or without damages for withholding thereof, and for injiu'ies to the property withheld. 5. Claims to recover possession of real property, with or without damages for withhold- ing thereof, and rents and profits of the same— to malie partition thereof, and to quiet the title to real property. 6. Claims to enforce the specific performance of conti-acts and to avoid contracts for fraud or mistalie. 7. Claims to foreclose mortgages; to enforce or discharge specific liens; to sub- ject to sale real property upon demands against decedents' estates, when such property has passed to heirs, devisees, or their assigns; to marshal as- sets and to substitute one person to the right of another; and all other causes of action arising out of a contract or duty not falling within either of the foregoing classes. But causes of action so joined must affect all the parties to the action, and not require different places of trial, and must be separately stated and numbered." It is properly held under this provision that causes of action arising from injuries cannot be united with those founded on con- tract although connected with the subject of the action. Boyer v. Tiedman, 84 Ind. 72; Cincinnati, W. & M. R. Co. v. Harris, 61 Ind. 290. The follow- ing Is the corresponding section of the Iowa Code of 1873, 1880 and 1886: "Sec. 2630. Causes of action of whatever kind, when each may be prose- cuted by the same kind of proceedings, provided they be by the same party, and against the same party, in the same riglit, and if suit on all may be brought and tried in the same county, may be joined in the same petition; but the court, to prevent confusion therein, may direct all or any portion of the issues joined therein to be tried separately, and may determine the order thereof." 9 Code Civ. Proc. § 427. 10 Comp. Laws 1873, § 1127. (189) § 113 OF THE ACTION. [PAKT I. nature may be united in one complaint." The Oregon Code abol- ishes only the distinctions "between forms of actions at law," " and, in providing for the union of several causes of action omits all refer- ence to equitable causes, omits the first class contained in the orig- inal New York Code of Procedure, and makes two classes of injuries, one being to the person and one to property." The Code of Civil Procedure of Colorado," differs from all the rest, and by class first, actions may be united for the recovery of real property, with dam- ages, rents, profits, etc.; by class second, actions for the recovery of personal property, with damages, etc., and by class third, all actions for damages, whether upon contract or for injuries to prop- erty, person, or character. § 113. A Cause of A.ction — Facts constituting a Cause of Action — Meaning of the Terms — How may a Cause of Action arise? We have defined an action to be a judicial proceeding for the prevention or redress of a wrong.^° The "cause of action," then, is the "wrong." In a given case, the second phrase at the head of this section includes the first, for there can be no cause of action aside frtm the facts which constitute it; the facts show a wrong committed or threatened, and unless they do so, there is no cause of action, or, in the language of the statute, "the complaint (petition) does not state facts sufQcient to constitute a cause of action." The wrong may be done [or the cause of action may arise] by the denial of a right; or by the refusal to respond to an obligation; or it may arise from mere neglect in the performance of a duty; or it may be an affirmative injury. An instance of the first is an adverse claim to property, or the denial of an obligation; of the second, the non-per- formance of an agreement; of the third, an injury resulting from 11 Eastman v. Tui-man, 24 Cal. 379; Gray v. Dougherty, 25 Cal. 266; Moore V. Massini, 32 Cal. 590. 12 Code, § 1. 13 Code Proc. § 91. " Code Civ. Proc. § 71; Code Civ. Proc. 1883, § 74. IB Ante, § 1, and note. (190) CH. IX. J JOINDEK OF CAUSES OF ACTION. § 113 negligence; and of the fourth, a trespass. In the complicated dis- putes that sometimes arise, and especially in those that call for remedies of an equitable nature, the classification will not always be so simple; but we cannot conceive of an adversary proceeding which does not involve some wrong which is sought to be prevented or redressed. If a riglit is denied, or an obligation ignored, or a duty neg- lected, no cause of action is shown — ^that is, no wrong appears — without a statement of the facts showing the right or the obligation or the duty [or the relation], as well as its denial or the neglect; and this statement may be very simple, or it may be complicated, ac- cording to the nature of the wrong, or of the relief which is sought. Thus, no wrong appears from a denial of plaintiff's right of prop- erty and from his dispossession, unless he shows his title to the property; nor does a wrong appear from refusing to respond to an obligation until the facts are shown creating it. So of injuries that result from negligence — the matter about which the defendant was employed, either personally or by his servant or agent, and the want of care in the employment, are facts to be shown, as well as the resulting injury; they must all appear, or there is no wrong. But in a direct personal injury — as, assault and battery, or slander by words actionable per se — the wrong appears without pre- liminary averments; the right of exemption from the injury is inci- dent to our being, and the justification, if there be any, must come from the one who has infiicted it. In every other case facts must be stated which show a right [an obligation or duty or some rela- tion], or there can be no cause of action — that is, there can be no wrong. "Where there is a wrong there is a remedy," and if one suffers an injury for which the law affords no remedy, it is called, in torts, damnum absque injuria— an injury without a wrong." 18 Wrongs usually involve blame, but tbere is a class of causes where such wrong can hardly be supposed— as, where a trustee applies to the court for direction in the execution of the trust. This is rather a proceeding to ascertain a right, and an actual wrong cannot be predicated until after the duty is declared. And yet, theoretically, there is a wrong; for when the court gives construction to an instrument or declai-es a duty, it is such as the party himself should have understood and performed. And in an action for the re-execution or reformation of a contract, the wrong may not have been voluntary, inasmuch as the accident or mistake may have arisen with- (191) § 114 OF THE ACTION. [PABT I. The cause of action and the facts which show it involve, then, some wrong suffered by the plaintiff — some infraction .of his rights; and, in considering the union of causes of action in one suit, this view must be kept clearly in mind, lest the pleader improperly combine causes of action, or split up a cause, or imagine he has different causes when he is only seeking different kinds of relief. § 114. Diflferent Modes of Relief do not make different Causes of Action, The law may give more than one kind of relief for a single wrong — that is, for one cause of action. A doubt as to whether in such case there is not more than one cause of action has arisen where there is really but one wrong — as, the non-payment of a debt — but where the plaintiff's remedy is twofold — that is, he may bring one or another kind of action — and the facts constituting a cause of action in adopting one remedy differ from those which entitle him to relief in the other. As, in enforcing a contract s?cured by mortgage, or suing upon a promissory note given for the purchase-money of land, in pursuing one remedy it is sufficient to aver and prove the contract; while, iu seeking the other, the mortgage or the consideration of the note must be also averred and proved. And yet there is but one right — the right to the money; and one wrong — the refusal to pay it. The lien, or the right to pursue the property, is a right to further relief, furnished in one case by the act of the parties, and in the other by the law. In these cases it is clear that the plaintiff may bring suit upon the contract merely, and seek only a personal judgment, or he may seek to enforce the lien as well; but each action is based upon the same cause of action, and in seeking the full relief the plaintiff does not out defendant's fault. He commits a wrong, however, by refusing the rem- edy without action; but if under disability, or if other rights have inter- vened, so that the action of the court becomes necessary, the plaintiff has suf- fered a wrong, and the question of blame is only material as affecting costs or some other penalty. In speaking, in this connection, and elsewhere,^ of the action as necessarily prompted by a wrong, special proceedings not antagonistic in their nature, and where the action of the court is as much administrative as judicial, are not referred to. (192) CH. IX. J JOINDKR OF CAUSES OF ACTION. § 115 unite two causes of action in one suit, but simply so states his facts as to entitle him to such relief. There is another class of cases, where one cannot proceed in the ordinary mode of collecting his debt or recovering his property without the previous interposition of the court. If, in these cases, the plaintiff seeks full redress, he has but one cause of action; he pursues but one right- — a right to the money or property wrong- fully kept from him and the special interposition of the court is but part of the relief, an act or order necessary to such redress. And yet he may not seek full relief; he may not yet be entitled' to it, or may prefer to postpone it, but still desires the obstacles. to be removed — wishes to be placed in position where, in due time, he can pursue his full right, and accordingly he brings suit for that purpose only. He has not, in such case, the same cause of action ; the wrong to be now remedied does not consist of depriving him of the money or property, but in something else ; and he may,. for the present be satisfied with redressing that wrong, or may not yet be able to do more. But it does not follow that, when one seeks full relief, there are two causes of action. It is then a different cause. The plaintiff seeks, as it were, double relief, as will appear by the illustrations in the next section. The pleader wiU derive aid, in enabling him to decide intelligently whether the facts constitute one or two causes of action, by scruti- nizing the separate statements of what he may suppose to be each cause. In one of the statements he may see the incompleteness of the obligation, that alone it will not support a judgment, and hence does not embody a cause of action — only some of the facts that constitute it; and in other cases he may see that each state- ment complains of a breach, perhaps the same breach of the same obligation, and hence states the same cause of action. § 115. Continued— Further Illustrations. The plaintiff may be the owner of a written obligation which has been destroyed. He may enforce it, if due, notwithstanding its de- struction, and without the form of a preliminary order, the fact of the loss being shown, or he may be content with an order for its re- execution ; and, if the obligation is not due, the latter is all the relief BLE3S CO DE PL. 13 (193) § 1]5 OF THE ACTION. [PAET I. to which he is as yet entitled. The wrong in the first case is in not fulfilling the obligation ; in the second, in not executing a new one. So, in an action for the reformation of a written agreement, the plaintiff may also seek its enforcement as it was understood bj' the parties and should have been written, or may only desire the correction of the error. The wrong in one case is in refusing to do as the party agreed to do; in the other, in refusing to correct the mistake. The plaintiff seeks to recover land which is really his own, but the legal title is in another — a fraudulent conveyance perhaps intervenes — ■ he may sue only to perfect his title, as by cancelling the convey- ance, or he may ask also for possession and for damages. This is more like splitting an action; but inasmuch as before the adoption of the Code the first relief could be obtained only in equity, while an action for the latter, if sought separately, was called an action at law, the two actions in regard to the same land are allowed. They may be,- and ordinarily should be, combined — that is, there should be but one action — and if the plaintiff seeks full relief, it is not a union of causes of action. The wrong has been in keeping him out of possession of his land, in depriving him of its use, and by means of a fraudulent title; the cancellation of the evidence of that title, ■compensation for the dispossession, as well as giving possession, are but different measures of relief for the same wrong. But where the suit is for the cancellation only, the wrong consists in shadowing the title by the cloud of a fraudulent paper.^' 17 Where a contract is both reformed and enforced, the relief may be called double: first, the correction of the mistake; and, second, the damages for its breach. It would seem that the judgment need only be for the amount due, and that the mistake could be treated as matter of evidence — that is, that the court would admit evidence of the mistake, as showing what the contract actually was, and permit a recovery as upon a lost instrument; and but for the long distinction between the powers of courts of law and equity, this might, perhaps, be done. In couits of law the rule has been inflexible that the instrument is to be taken as it reads— it, and it only, is evidence of the agreement covered by it; while equity would correct a mistake, though estab- lished by parol. The decree of the chancellor could be used in the courts of law to vary the agreement as written; the interposition of two courts by two independent issues and judgments was necessary t'o give relief upon the instrument; and it makes no difference in principle though the equity courts cfime to give the full relief. It continues, therefore, to be the practice to render a double judgment— an order for the reformation of the instrument, (194) ■CH. IX. J JOINDER OF CAUSES OF ' ACTION. § 116 § 116. Continued — The judicial View. The courts of equity in effect treat the cases just supposed as con- taiuing but one cause of action, although it is seldom so stated in terms. The saying is so frequent as almost to become a formula, that, when the chancellor has obtained jurisdiction, he should do complete justice — that is, he should give the plaintiff every relief to "which he is entitled. Under the new practice courts continue to use the old formula, though they are not alvs^ays clear as to whether there is one or more causes of action.^^ Those of New York uni- formly treat this class of actions as embracing but one cause of ac- tion, and the plaintiff is held to be entitled to fuU relief.^^ So do followed by a judgment for the amount due upon it. In Globe Insurance Co. V. Boyle, 21 Ohio St. 119, while the court recognized the necessity of the order ■of reformation as prellminaiy to judgment outhe merits, it held the omission to be an error of form, which would not authorize a reversal of the judgment, inasmuch as the evidence, as preserved in the record, showed that the plain- tiif was entitled to such an order, which it would be the duty of the appellate court to give. As to the judgment where a defendant seeks to avail himself •of a mistake in the instrument sued on, see post, §§ 348-351. 18 As to the extent of the relief that may be given in actions of an equitable aatui-e, see part 2, §§ 1G6-173. 19 Most of the New York cases treat the matter with reference to the relief, affirming the equity rale, but this necessarily supposes that there is but one cau.se of action. Thus, in BID WELL v. ASTOR MUT. IXS. CO., 16 N. Y. 263, judgment had been rendered below for the reformation of an insurance policy, and for the amount due upon it. In affirming the judgment the court of appeals scouts the objection that the court should have stopped with reforming the policy and have turned the plaintiff: over to a new action to recover his dam- ages. In NEW YORK ICE CO. v. NORTH-WESTERN INS. CO., 23 N. Y. 357, which was a similar action, the same court treated the application for reformation and for damages as one action, and held that even if the equity for reformation failed, and there was enough in the contract unreformed, and the evidence, to show a claim for damages, the plain- tiff should have judgment. In CAHOON v. BANK OF UTICA, 7 N. Y. 486, one Brown had assigned to defendant a bond and mortgage to seciu-e certain indebtedness, and afterwai-ds assigned to the plaintiffs all his rights and credits. The action was against Brown's first as- signees for an account, for the delivery of the instruments secured, and for the payment of the balance in their hands. On objection for misjoinder, the majority of the court held that, notwithstanding the balance in the hands of (195) § 116 OF THE ACTION. [PAliT I. the courts of California.^" The Indiana Code expressly provides that a contract may be reformed and enforced by one action.^^ The judges of the Supreme Court of Wisconsin, when relief of a legal and of an equitable nature is given in one action, usually speak of the ac- detendant was ascertained, tliere was but one cause of action. Jewitt and Welles dissenting, and holding it to be a union of two causes of action with- out stating them separately. In the Supreme Court the same view is taken.. Thus, an action for cutting off the plaintiflE's access to the river by a railroad running across a bay, and between his landing and the main stream, was for a single grievance, and he was allowed a judgment for damages and an order upon the defendant to construct a bridge and passway as required by statute. Getty V. Hudson River R. Co., 6 How. Pr. 269. It was also held, in Spier v. Robinson, 9 How. Pr. 325, that a specific performance of a real contract, and for the rents and profits of the land while in the vendor's possession after sale, constituted but one cause of action, the judge (Cady) remarking that "it was a specification of what he [the defendant] ought to do to make full compensation for the wrong done him." See, also, LATXIN v. McCARTY, 41 N. Y. 107, where a complaint seeking to set aside a fraudulent deed, and to- obtain possession, was held to contain but one cause of action; [Guernsey v. American Ins. Co., 17 Minn. 104 (Gil. 83), action to reform a policy of insiu"- ance, and to recover the amount due on it as reformed; Walkup v. Zehring, 13- Iowa, 306, action to correct a series of title deeds, to set aside another deed of the same land, and to quiet plaintiff's title; Reedy v. Smith, 42 Cal. 245; Johnson v. Golder, 132 N. Y. 116, 30 N. E. 376; Louvall v. Gridley, 70 Cal. 507,. 11 Pac. 777. Contra, Harrison v. Juneau Bank, 17 Wis. 340.] 20 In WAUvER v. SEDGWICK, 8 Cal. 398, the court treats an action brought for apersonal judgment founded upon a promissory note given forthe purchase- money of land, and another action to enforce the lien, as both being for the same cause of action, although a judgment without satisfaction in the first suit is no bar to the second. But inasmuch as under the Code the plaintiff might, in one action, have obtained his full relief, he should be required to pay the costs of a second suit. After referring to the Old necessity of going into a court of law to obtain a personal judgment, and to a court of equity to en- force the lien, the following language is used: "But under our system of prac- tice, when law and equity are both administered by the same tribunal, and may be in the same suit, the reason for the former rule does not exist, and' the rule itself should cease. Why should the purchaser .be harassed with the- costs of two separate suits to obtain the end that as well might be reached by one? The whole spirit of our system and its leading intent is to avoid a 21 MONROE V. SKELTON, 36 Ind. 302. [A mortgage may be reformed and foreclosed In the same suit. Miller v. Kolb, 47 Ind. 220; Smith v. Kyler, 74 Ind. 575; Conger v. Parker, 29 Ind. 380; Rev. St. Ind. § 279.] (196) <:ii- IX. 1 JOlMlEli OF CAUSES OF ACTION. § 1 1 tj tion as embracing more than one cause; and so do those of Minne- sota.^^ The position taken in Missouri is somewhat ambiguous, but the legal and equitable relief seems to have been treated as showing two causes of action.^^ multiplicity of suits. This is the best feature of the system. All the party has to do is to make a concise and true statement of the facts that con- stitute his cause of action and defense, and then the court will give him such relief as by the rules of law or equity he may be entitled to receive. In this <;ase the plaintiff should have stated all the facts in the suit upon the notes, and the court could have given him such a decree as he was entitled to have." 1 have given so much of the language of the court in this case because it shows, for the time when it was used (1857), an unusual appreciation of the spirit and object of the code, better than in some of the other early cases. In Oahfornia there is no express permission to unite causes of action of a legal -and equitable nature, and it is nowhere intimated that to seek reUef by a per- sonal judgment, and by an order charging land upon which the demand may be a lieu, shows two causes of action. See Gray v. Dougherty, 25 Cal. 2G6; Murphy v. Ilooney, 45 Cal. 78. 22 In SAUER V. STEINBAUER, 14 Wis. 70, in an action to foreclose a mort- gage, a judgment was sustained which had been rendered against the mortgager for an unsatisfied balance that may remain after the sale, and upon the ground that the statute authorized the union in one complaint of more than one cause of action. There was but one count, nothing was said in regard to the neces- sity of separate statements. In Stillwell v. Kellogg, Id. 461, in affirming a similar judgment, the court does not speak of it as a joinder of two causes of action, but as a customary judgment in an action for foreclosure; treats the whole case as equitable, and denies the right to a jury trial. But in Faesi v. Goetz, 15 Wis. 231, the same judge (Paine) treats a similar complaint as con- taining two causes of action. Also, an action seeking a personal judgment Jind to enforce a vendor's lien was afterwards said to contain two causes of action properly united. Stephens v. Magor, 25 AVis. 533. In Harrison v. Juneau Bank, 17 Wis. 340, the court distinctly speaks of a complaint seeking to reform a contract and to enforce it, as reformed, as embracing two causes of action, which should have been separately stated. In none of these Wis- consin cases was an attempt made to define a cause of action, nor does the distinction seem to have been presented by counsel, or considered by the court, 23 The Supreme Court of Missouri, from Peyton v. Rose, 41 Mo. 257, to Henderson v. Dickey, 50 Mo. 161, held that if a party sought legal reUef in an equitable action, he combined two causes of action, and that in order to -obtain such relief he should seek it by another action, or by another count in the equitable action. This position is more fully discussed hereafter. Post, !■§ 170, 171. (197) § 117 OF THE ACTION. [I'AHT I> § 117. The Causes of Action must be between the same Parties in the same Right. The pleader will not be likely to overlook the express requirement that, in the joinder of causes of action, they must affect all the par- ties to the action. But not only must the same parties be affected, but. they must be affected in the same right. Thus, one cannot be sued upon his personal liability, and in the same action upon his liability as executor or administrator ;=^ nor can one sue, though by different statements, as executor or administrator, and in his personal capac- ity.^'^ In requiring that each cause of action should affect all the parties, it is not meant that they are all to be affected equally; oth- between actions seeking more than one kind of relief, and a union of different causes of action. To sbow the narrow view wliich continued to be taken by a court of excellent character and reputation, see Supervisors of Kewaunee Co. V. Decker, 30 Wis. 624; Horn v. Ludington, 32 Wis. 73. The Supreme Court of Jliunesota, in G-r.ernsey v. American Ins. Co., IT Minn. 104 (Gil. 83), treats an action for the reform of an insiu-ance policy and for a judg- ment, as reformed, as containing two causes of action, the first of whichi should be passed upon by the court before the other issues could be sub- mitted to a jury. 21 FERRIN V. MYKICK, 41 N. Y. 31.j. The court in this case treats the fol- lowing principles as settled: (1) that for all causes of action arising upon a contract made by a testator in his life-time, an action can be sustained against the executor as such, and the judgment would be de bonis testatoris; (2) that in all causes of action, where the same arises upon contract made after the death of the testator, the claim is against the executor personally, not against the estate, and the judgment must be de bonis propriis; (3) that these different causes of action cannot be united in the same complaint." The second proposi- tion is atflrmed in Austin v. Munro, 47 N. Y. 300. [Cincinnati, H. & D. Ry.. Co. V. Chester, 57 Ind. 299.] [The case of Tradesmen's Nat. Bank t. McFeely, 01 Barb. .o22, would seem on first reading to be in conflict with the rule here laid down in the text, and the one supported by Ferrin v. Myrick, supra; but there was no attempt tO' hold the defendant here liable in his two capacities. The rule here given, which is: "A count on a promise made by an executor or administratoi" as such, and in which he is not charged as personally liable, may be joined, with a count on a promise made by the intestate or testator," — is well settled at common law. Segar v. Atkinson, 1 H. Bl. 102; 1 Chit. PI. 205b; 2 Chit^ PI. Gl.] 25 LUCAS V. NEW YORK CENT. R. CO., 21 Barb. 245. (198) <^H. IX. J JOLNDER OF CAUSES OF ACTION. § 118 erwise, but few causes for the enforcement of equitable demands could be united. If one cause of action be joint (that is, be a wrong done to the plaintiffs in respect to their joint rights), causes of ac- tion that are several (that is, wrongs in respect to the indi\'idual rights of each of the plaintiffs) cannot be united with it.^^ § 118. As to splitting a Cause of Action. It is a rule that a cause of action — as, one springing from a single contract — cannot be so split as to authorize more than one action; and the same rule would make it improper to so divide a single cause of action, by separate statements in one complaint, as to show more than one cause of action. It is sometimes difficult to decide whether a given matter — as, a running account for the sale of different articles of property, or distinct breaches of a written agreement — constitutes but one cause of action, or more than one; and the courts have not always been in accord upon this subject. Logically, every wrong furnishes itself a cause of action, but different wrongs may be so blended as to be called a single wrong, as to furnish but a single cause of action, especially with reference to the policy of the law, which discourages a multiplicity of suits. A distinguished common-law judge in New York says : "AU damages arising from a single wrong, though at different times, make but one cause of action; and all debts and demands already due by the same contract make one entire cause of action." ^^ This language was quoted in the New York Court 26 GRANT V. Mccarty, 38 lowa, 4G8; [Hinkle v. Davenport, 38 Iowa, 355? Faivre v. Gillman, 84 Iowa, 573, 51 N. W. 46; Dailey v. Houston, 58 Mo. 361; Greene v. Nunnemacher, 36 Wis. 50.] 27 Cowen, .T., in BENDEKNAGLE v. COCKS, 19 Wend. 207. [In tWs case. Cocks sued Bendernagle for breaches of certain covenants on the part of the defendant. The defendant had covenanted to pay the one-third of the manure which should be brought by Cocks upon the demised premises during the term, and also to pay him $2.^5 for plowing and working a certain lot on the premises during the first year of the term. Actions were brought for breaches of the separate covenants. In rendering the decision, Cowen, J., says: "Where there w^ere breaches of several and distinct covenants con- tained In the same instrument, and a suit was brought claiming damages for some of the breaches, and subsequently a second action was commenced (190) § 118 OV THIC ACTION. [PAHT I. of Appeals by Strong, J., who further remarks: 'Terhaps as sim- ple and safe a test as the subject admits of, by which to determine whether a case belongs to one class or the other, is by inquiring whether it rests upon one or several acts or agreements. In the case of torts, each trespass, or conversion, or fraud, gives a right of action, and but a single one, however numerous the items of wrong or damage may be; in respect to contracts, express or implied, each contract affords one, and only one, cause of action. The case of a contract containing several stipulations, to be performed at differ- ent times, is no exception; although an action may be maintained upon each stipulation as it is broken, before the time for the per- formance of the others, the ground of action is the stipulation, which is in the nature of a several contract. Where there is an account for goods sold, or labor performed; where money has been lent to, or paid for, the use of a party at different times, or several items of claims spring in any way from contract, whether one only or separate rights of action exist, will, in each case, depend upon whether the case is covered by one or by separate contracts. The several items may have their origin in one contract — as, on an agreement to sell and deliver goods, or perform work, or advance money; and usually, in case of a running account, it may be fairly implied that it is in pursuance of an agreement that an account may be opened and continued, either for a definite period or at the pleasure of one or both the parties. But there must be either an express contract or the circumstances must be such as to raise an implied contract embracing all the items, to make them, where they arose at different times, a single or entire demand or cause of action." ^* claiming damages for otlier breaches, all of the causes of action having accrued at the time of the bringing of the first suit, that the first action might be pleaded in abatement of the second." This rule seems to extend to several actions against the same person for the same wrong, but not to sev- eral and distinct trespasses or wrongs. Willard v. Sperry, 16 Johns. 121; Stark V. Starr, 9i U. S. 47T.] -'s SECOR V. STUKGIS, 16 N. Y. 548. In tliis case the business of the plain- tift' consisted of two branches, which were designed to be, and were, kept en- tirely distinct from each other. In an action upon an account accruing in re- spect to one branch of his business, it was held that the two branches were so distinct that separate actions would lie upon the accounts of each. Nor (200) CH- IX-J JOINDER OF CAUSES OF ACTION. § 118 The cases are numerous where this question has been raised in a second suit upon the same alleged cause of action, as in the case just cited, and a defense is made upon the ground that part of the account, or some of the breaches of the agreement, in suit, had been the foundation of a previous action. The question only concerns the pleader, in this connection, as enabling him to determine whether to embrace his claims in one or more statements — that is, whether he has more than one cause of action.^' Parties may agree that the items of a claim for goods, etc., may be divided;^" and if one has sued to recover possession of specific iirticles of personal property, not knowing that the defendant had possession of other property which he also claimed, he may have a second action for the articles which, for that reason, he had not in- cluded in the flrst.^^ It is also held that, where the plaintiff had ■assigned a portion of a demand, and the defendant had, in effect, consented by securing the portion assigned the plaintiff may sue for the balance, and without making the assignee a party.^^ An action for moneys fraudulently obtained, although at different times and by divers frauds, is held to embrace but one cause of action.^' does the fact that these past due promissory notes have been given in settlement of a single demand make each a part of a single demand. They may each be sued upon separately. Nathans v. Hope, 77 N. Y. 420. 29 See, as affirming the general doctrine given in the text, from Secor v. Sturgis, and as applied to trespass in taking general property, Draper v. ;Stouvenel, 38 N. T. 219, quoting Farrington v. Payne, 15 Johns. 432; [Fisk ■V. Tank, 12 Wis. 276, 298.] 30 Mills V. Garrison, *42 N. Y. 40. 31 Kisley v. Squire, 53 Barb. 280. 3= Boyle V. Bobbins, 71 N. 0. 130. 33 PEOPLE V. TWEED, 5 Hun, 353. The view taken In Missom'i is not alto- gether in harmony with that of the text. In State v. DuUe, 45 Mo. 269, the fact that several distinct breaches were counted on, and the verdict was for an entire sum, was held ground for reversal, the practice in Missouri being to require from the jury a separate verdict upon each cause of action. In Boy CO V. Christy, 47 Mo. 70, the action was brouglit by an apprentice upon the indenture, and the several breaches charged wore called distinct causes of action. In State v. Davis, 35 Mo. 406, the court, however, held that the several breaches of a sheriff's bond furnished but one cause of action. Moore v. Smith, 10 How. Pr. 361, does not conform to the other New York cases. In risk v. Tank, 12 Wis. 276, the defendant had agreed to build and set up steamboat engines, and an action charging failure in point of time, (201) § 119 OF THE ACTION. [PAET I. § 119. The several Causes of Action must be separately stated.^ Whatever the provisions as to the nature of the causes of action that may be united in one proceeding, it is uniformly required that each cause be separately stated, and in some States that the state- ments be numbered. These separate statements are frequently called counts, a term taken from common-law pleading; yet the rules that govern them are not always the same. A second com- mon-law count may embody a new cause of action, or be a state- ment in different form of a cause already declared on. Nor must each count embrace every fact necessary to its validity, provided the facts omitted liave been stated in other counts and are properly referred to. But it is generally required that the different statements of a complaint under the code should contain causes of action different in fact. The statute requires that the facts shall be stated without repetition, or unnecessary repetition. With a few exceptions, this requirement is held to forbid a duplicate statement, in different form, of the same cause, and if such statements are made, the plain- tiff will be required to elect upon which to go to trial, or the court will strike out all but the first statement.^ ^ The Supreme Court also defects in their construction, with appropriate damages for each breach^ was held to emhody but one cause of action — there was but one contract,, although two breaches of it; [Johnson v. Colder, 132 N. Y. 116, 30 N. E. 376; Trowbridge v. True, 52 Conn. 190; Louvall v. Gridley, 70 Cal. 507, 11 Pac. 777; Sayles v. Bepiis, 57 Wis. 315, 15 N. W. 432; Wickersham v. Crit- tenden, 93 Cal. 17, 28 Pac. 788; Damon v. Damon, 28 Wis. 510.] 34 [This is the rule of the following states: See Code Civ. Proc. N. Y. §• 483; Rev. St. Ohio, § 5060; Rev. St. Ind. § 338; Code Iowa, § 3836; Gen. St. Kan. par. 4171; Rev. St. Mo. § 2040; Code Civ. Proc. Cal. § 427; Code Civ. Proc. Colo. § 70; Rev. St. 'V^'is. § 2647; Gen. St. Minn. c. C6, § 118; Consol. St. Neb. § 4633; Gen. St. Comi. § 878; Code X. C. § 267; Code Civ. Proc. S. C. § 188; Comp. Laws N. D. § 4932; Comp. Laws S. D. § 4932; Comp. St. Mont § 86; Gen. St. Nev. § 3086; Rev. St. Wyo. § 2448; Mansf. Dig. Ark. § 5027; Civ. Code Ky. § 113; Rev. St. Idaho, § 4169; Code Wash. § 214.] 3= Stockbridge Iron Co. v. Miller, 5 How. Pr. 439; Churchill v. Churchill, 9 How. Pr. 552; Lackey v. Vanderbilt, 10 How. Pr. 155; Dunning v. Thomas, 11 How. Pr. 281; Dickens v. New York Cent. R. Co., 13 How. Pr. 228; (202) CH. IX.] JOINDKIl OF CAUSES OF ACTION. § 119 of Indiana has, however, held that inasmuch as the oath is not re- quired in that state, the pleader \\ill be permitted to make a second statement of the same cause of action; ^° and in Wisconsin the same liberty has been given him when not fully advised as to defendant's relation to the property — as, whether he should be charged as ware- houseman or carrier.^^ In Iowa the rule in common-law pleadings is held to prevail,'^ and in New York its Supreme Court has per- mitted a plaintiff, under an apparent necessity, to make a duplicate statement of the same cause of action. The statute prohibits un- necessary repetition, but does not prohibit it altogether.^" Mis- souri adopts the more liberal rule.*" ilead v. Mali, 15 How. Pr. 347; "Whittier v. Bates, 2 Abb. Pr. 477; Nash v. ilcCauley, 9 Abb. Pr. 159; Fern v. Vanderbilt, 13 Abb. Pr. 72; Sturges V. Burton, 8 Ohio St. 215; Ferguson v. Gilbert, 16 Ohio St. 88; Murphy v. Estes, 6 Bush. ."532. 36 Snyder v. Snyder, 2.j Ind. 399; Stearns v. Dubois. 55 Ind. 257. 3T WHITNEY v. CHICAGO & X. W. E. CO., 27 Wis. 327. [In this case the plaintiff had shipped a\oo1 on defendant's road for Chicago, and it was never delivered. Plaintiff did not know whether it had been lost in the transit, or had been burned at a fire which had consumed defendant's ware- house in Chicago. He therefore complained in two counts or causes of action: (1) Against the defendant as a common carrier; and (2) as a ware- houseman, for the negligent loss of the goods. This complaint was held good, and plaintiff could not be compelled to elect upon which to go to trial.] 38 Pearson v. Milwaukee & St. P. li. Co., 45 Iowa, 497. 39 In .TONES V. PALMEK, 1 Abb. Pr. 442. the court, in allowing two state- ments, said that the pleader should be permitted to set out the facts in two forms, "provided there is a fair and reasonable doubt of his ability to plead them in one mode only. But such pleading," continues the court, "will be allowed with great caution, and only when it is very clear that the nature of the case renders it proper and necessary to protect the rights of the plaintiff, and secure him from the danger of a non-suit trial." [Van Brunt V. Mather, 48 Iowa, 503; Cramer v. Oppenstein, 16 Colo. 504, 2T Pac. 716.] io See end of next section. > (203) § 120 OF THE ACTION. [PABT I. § 120. Continued— "Where there are two Causes of Action and but one Relief, they may be stated in sep- arate Counts. It sometimes happens that one may have demands of a different nature founded upon the same contract or transaction, but is en- titled to but one satisfaction. For example, words used in the sale of a horse which make a contract of warranty may, with the addition of knowledge of their falsity, give also a cause of action for the deceit, and thus the plaintiff may be wronged by the breach of the contract and by the fraud; but he cannot recover for both causes — to embody them in one statement would be duplicity, and if both are relied on, they should be separately stated. So, a shareholder of an insurance company gives his promissory note to the company, and a receiver brings suits upon it, reciting its con- sideration. If it is a stock note, the whole should be paid; if a premium note, only the assessments upon it. The wrong, then, and therefore the cause of action, differs, being in the one case the refusal to pay the note; in the other, to pay the assessments.*^ So when the plaintiff charges the defendant with fraud in representing the solvency of a purchaser of goods, and for the same representa- tion, with a liability as guarantor for their price. ■'^ Even if the two statements should be permitted where there is but one cause of action, although made under an apparent necessity, yet there is no good reason why the permission should be withheld in the case just cited. First, no case will be found where the causes of action do not spring either from the same transaction or from transactions connected with the same subject of action; and thus it does not matter though the wrong in one case be called a tort and in the other the breach of a contract. Second, there is noth- ing in the statute to forbid such union. Afflrmative provision is made for the union of different causes of action and it is not re- quired that they be such causes that a recovery may be had upon each; nor would the joinder be such a repetition of facts as is forbidden. The facts in the two statements would not be the 4iBirdseye v. Smith, 32 Barb. 217. ■*2 These facts are involved in Waller v. Easkan, 12 How. Pr. 28, f20-i) CH. IX.] JOINDER OF CAUSES OP ACTION. § 120' same; there may be actually two grounds for the action, or, being only one, certain supposed grounds may be so connected that the plaintiff may not be able to tell in advance which will be established upon the trial. The Code will have failed in its chief object if he is forbidden to develop every ground upon which he bases his right of recovery. The opinions of the courts upon this question are not always clear or consistent. In the case first supposed, of the false warrant and deceit in the sale of a horse, the Supreme Court of Is'^ew York has held that the two demands could not be united, although sepa- rately stated.^^ In a case where the action was based upon a fraudulent representation of a purchaser's insolvency, and upon a guarantee of a payment for the goods purchased, a motion to strike out all that pertained to the representation was sustained upon the ground that one cause of action was founded upon a tort and the other upon a contract.** In an action by the receiver of an insur- ance company upon a promissory note given the company, where there were two statements charging the liability differently, the Supreme Court at general term sustained the pleading, in as much as the causes of action were really two, although founded upon the same instrument.*^ The ruling in Ohio is only consistent with *3 SWEET v. INGERSON, 12 How. Pr. 331. The decision is based chiefly upon the fact that one demand sounds in contract and the other in tort, the opinion assuming that they do not arise out of the same transaction. But if the transactions upon which the demands are based are not one and the same, it is difficult to perceive what is meant by the term. The con- tract was entered into and the fraudulent representation was made, by the use of the same words, and it differs from the case where one assaults and slanders another at the same time, for in that case there are two distinct acts of a difCerent nature. The judge (Bacon) also says he is inclined to the opinion that the object in allowing a joinder was to authorize a union of causes where a recovery for both could be had in the same action; and this view, if correct, would be fatal to the union. a Waller v. Raskan, 12 How. Pr. 28. The court did not note the fact that both causes of action arose out of transactions connected with the subject of the action. Although the fact is noticed, no objection was made upon the ground that there could be but a single remedy. 45 BIRDSEYE V. SMITH, 32 Barb. 217. In the opinion, Allen, J., says: "If the question were res nova, I should be inclined to greater liberality in. the construction of the Code, in tolerating, without unnecessary repetition, (205) ^ 120 OF THE ACTION. [PART I. the one taken by Allen, J., in Birdseye v. Smith, given in the note. One had recovered a judgment against an insolvent railroad com- pany, and, by a proceeding of an equitable nature, sought to subject the credits of the company to its payment. The petition sought to charge the defendant, a stockholder, with a twofold liability; one upon his subscription to the capital stock of the company, and one upon his statutory individual liability; and this pleading was sustained.*^ The Supreme Court of Missouri holds that a single statements of the same cause of action in difEerent forms, or difEerent causes of action arising out of tlie same transaction, than the reported cases seem to warrant. Several statements of the same cause of action, substantially the same and only differing in form, are not necessary. But where the statements differ materially and in substance, and are not unnecessarily inserted, and cannot mislead the defendant or embarrass the •defense, but are only inserted from the caution which eveiy practitioner finds it necessary to exercise to guard against the infirmities of human memory and the defects of human testimony, I would allow them to stand as not 'un- necessary repetitions.' " Coming to the case before him, he further says: "The two counts are not inserted to meet a possible variance in the statement of a single cause of action, but to sustain two distinct and difEerent claims. The fact that they are based upon the same instrument does not affect the question. " * * Unless there is a necessity imposed by the Code, it would not be right to compel the plaintiff to elect between the two counts where such election may lead to successive actions to determine the rights and liabilities of the parties upon a single instrument." 46 WARNER V. CAI.LKNDER, 20 Ohio St. 190. This case is not precisely like the others, although it is similar in principle, the plaintiff by separate statements charging a twofold liability, although he did not seek to recover in both if one sufficed. In equity such proceedings were common, and the rule of equity practice may throw some light upon this question. Judge Swan, in Sturges v. Burton, 8 Ohio St. 215, says that "pleadings under the Code must be as liberally construed as the stating part of a bill in equity." Story's Equity Pleadings (section 254) says: "And although setting forth the plaintiff's title (right) in alternatives may not be sufficient, yet we are not from that to draw the general conclusion that a bill can never be brought with a double aspect. On the contrary, where the title to relief will be pre- cisely the same in each case, the plaintiff may aver facts of a different nature, which will equally support his application. Thus, for example. If the plaintiff should seek to set aside a deed upon the ground of fraud and imposition, and undue influence, the plaintiff in such case may charge in- sanity in the party making the deed, and he may also charge great weakness and imbecility of mind." (200 CH. IX.] JOINDER OF CAUSES OF ACTION. § 121 cause of action may be stated in different counts in order to meet any possible state of proof, and that two distinct claims, based upon the same instrument may be so stated, although the plaintiff be entitled to but one satisfaction.*' § 121. Completeness of each Statement — Each Paragraph or Cause of Action must be good \p^ithin itself. The presumption is that every statement embodies a cause of action altogether new; hence the rule that it must be complete in itself. It must contain all the facts which constitute the cause of action embraced in it, and its defects cannot be supplied from the other statements. Although this reason is denied in Indiana,*' yet the requirement that each paragraph, as the separate statement is there called, shall contain all the facts necessary to the cause of action, is rigidly enforced in that state; and a second paragraph, which counted upon a mortgage, and referred to the land as de- scribed in the first, was held to be bad on general demurrer, upon the ground that the court would not look outside the paragraph for a description of the land.*° The same view is taken in Wiscon- sin,^" and in New York.^^ So imperative is the requirement that each statement shall be complete, that, when the statute requires that copies of the instruments upon which the action is based be filed with the pleading, it is held that when the same paper is made the foundation of a second count, it should be referred to as filed with that count also.=^' It is, however, held in Missouri that, when the averments in the first count show the corporate existence and *^ Brinkman v. Huuter, 73 Mo. 172, and cases cited. *8 Snyder v. Snyder, 25 Ind. 399. 49 Clark v. Featlierston, 32 Ind. 142. The same rule is applied to answers, it being held improper in a special defense to refer to others for particular facts, instead of stating them anew. Woodward v. Wilcox, 27 Ind. 207; Potter V. Earnest, 45 Ind. 410; [Entsminger v. Jackson, 73 Ind. 144.] 5« Curtis V. Moore, 15 Wis. 134; Catlin v. Pedrick, 17 Wis. 88; Sabin v. Austin, 19 Wis. 421. But in Curtis v. Moore, matter of inducement in the first count was allowed to be referred to in the other counts. SI Sinclair v. Fitch, 3 E. D. Smith, 677; Landau v. Levy, 1 Abb. Pr. 376. «2 Peck V. Hensley, 21 Ind. 344; [Maxwell v. Brooks, 54 Ind. 98.] (207) § 122 OF THE ACTION. [PAHT I. powers of the parties, they need not be repeated in the other counts.^* § 1S3. The Causes of Action must be consistent. One's remedial rights in regard to the same wrong are not neces- sarily single, and yet they may be of such a nature that only one can be pursued. Thus, the injured party to a violated agreement may enforce it, or rescind it, and he may enforce it either by taking a judgment for damages or a judgment for specific performance. Here are three modes for seeking redress for the same wrong, to wit, the breach of the contract, either of which, but only one of which, is available; ^* the plaintiff must elect. But sometimes one may claim more than one right in regard to property — that is, he claims to have more than one cause of action, and seeks to prosecute them all. If they are such as can be united in one action, they must be consistent with each other — that is, one cause of action, if valid, should not show the others to be bad. Thus, one cannot seek the recovery of land as his absolute property, and by a second statement seek damages for an injury to his right of way over it;°^ if the plaintiff owns the land he cannot own a right of way, for the latter merges in the fee. Nor should one statement base the demand upon an agreement to lease, and an- other upon an actual demise.^" One cannot in a single action sue an agent, and one to whom the agent has sold the plaintiff's land, charging fraud, etc., in the sale, on the one hand seeking damages against the agent for the fraud, and on the other seeking to make the purchaser account as trustee. ' The first demand affirms the sale, and the other disaffirms it.*^' Nor can a plaintiff seek an in- 53 Aull Sav. Bank v. City of Lexington, 74 Mo. 104. And see Boeckler v. Missouri Pac. R. Co.. 10 Mo. App. 448. A similar view taken in Bricker V. Missouri Pac. Ry. Co., S3 Mo. 391, can hardly be treated as authority for the reason that the statement was filed before a justice of the peace. See, also, Russell v. Hannibal & St. J. R. Co., 83 Mo. 507. 54 Bowen v. Mandeville, i)5 N. Y. 237. 55 Smith V. Halloek, 8 How. Pr. 73. 50 Crow V. Hildreth, 39 Cal. 618. 57 GARDNER v. OGDEN, 22 N. Y. 327. Another objection to the joinder was made by the court to wit, that the causes of action joined in the (208) ^"- l-"^] JOINDER OF CAUSES OF ACTION. §125 junction against the breach of the covenants of a lease, and in the same complaint ask for its forfeiture.''^ Where two statutes create- liabilities for the same neglect, the injured party cannot enforce both, but should elect.^' The requirement of consistency is but a logical one, the codes being generally silent upon the subject, al- though the Code of Civil Procedure of New York*" expressly pro- vides that causes of action, to be united, must be consistent. § 123. Each Party must be affected, and in the same Character, but not to same Extent. It will not do to unite, in one pleading, a cause of action by or against two or more with a cause of action by or against a part only of the plaintiffs or defendants. The codes are express that "the causes of action so united * * * must affect all the par- ties to the action ;" hence plaintiffs cannot unite although in regard to the same property, where their interests are several. Thus, separate claimants cannot unite to dispossess one of distinct par- cels of land, either by a single statement or by different statements ; nor will different persons who each claim the whole be permitted to join in ejecting him,'^ In Kansas, different persons holding distinct mechanic's liens are not permitted to unite in one action to foreclose their liens."'^ The defendants in each statement must be the same — that is, all complaint do not affect botb the parties defendant. On the plaintiff's own showing, he has separate and distinct causes of action against each of the defendants. 58 Linden v. Hepburn, 3 Sandf. 668, 5 How. Pr. 188. The forfeiture of the term is a relief totally inconsistent with any equitable remedy. The lessor may seek to enforce his right to a re-entry and possession, or he may pro- ceed for an Injunction and damages, leaving the tenant in possession; 68 Sipperly v. Troy & Boston R. Co., 9 How. Pr. 83. 60 Section 484. ei Hubbell v. Lereh. 58 N. Y. 237. 62 Barb. 295. In this case the com- plaint alleged title in one plaintiff, and afterwards title in the other. It was a case of general repugnancy. It showed, taken together, that no title existed in either; and, as the judge remarked, the parties were guilty of felo de se. 62 Harsh v. Morgan, 1 Kan. 293. Aliter in California. Barber v. Rey- nolds, 33 Cal. 497. BI.ISS CODE PL. 14 (209) §124 OF THE ACTION. [PAET I. the parties must be affected by each cause of action; and it is a misjoinder — in equity pleadings it is called multifariousness — to charge certain persons as respects one cause of action, and in an- other statement bring in another party, or show that another party is interested, or that some of the necessary parties in the former statement are not interested.'^ The several defendants must be charged in the same character. Offlcers of a municipal corporation cannot, in the same action, be charged oflQcially and personally; "* nor can an executor or trustee be charged personally and in his representatiye character.*" But it is not necessary that the liability of the defendants be of equal amount, or that their interest be the same in each cause of action.*' § 124. Joinder under the Common law and Equity- Systems. Before considering the different classes of causes of action that may be united in one petition, the common-law and equity rules should be briefly noted. In actions at law, the rules regulating such joinder, like so many others, are formal and artificial, it being per- mitted or forbidden, not by the character of the wrong to be re- dressed, but by the form of the action and form of the judgment. Thus, if one should declare in assumpsit he cannot join a count in trover, though in both cases he seeks the value of goods, and for the reason only that one is an action upon contract and the other sounds in tort. But if, for the same cause of action he has declared in case, as in some instances both case and assumpsit will lie, he may then join the count in trover, for the reason that both actions sound in 6s See Robinson v. Rice, 20 Mo. 229; Farmers' Bank v. Bayless, 41 Mo. 274; Trowbridge v. Forepaugli, 14 Minn. 133 (Gil. 100); Ghiradelll v. Bour- land, 32 Cal. 585; Gardner v. Ogden, 22 N. Y. 327; Barnes v. Smith. 1 Rob. CN. Y.) 699. 81 Hancocli v. Johnson, 1 Mete. (Ky.) 242. 85 Ferrin v. Myrick, 41 N. Y. 315. 86 BLAKE V. VAN TILBORG, 21 Wis. 672; Vermeule v. Beck, 15 How. Pr. 333. As to multifariousness as regards parties, see, ante, § 110. It has been however held in Kentucky tliat different defendants holding distinct parcels of land sought to be recovered in ejectment may all be joined in one action, Woolfolk V. Ashby, 2 Mete. (Ky.) 288; [Bassett v. Warner, 23 Wis. 673.] (210) CH. IX.j JOINDER OF CAUSES OF ACTION. § 124 tort*^ The joinder of causes of action declared on as arising from tort, with others pleaded as springing from contract, was never allowed,^' and the rule is preserved in the codes of most of the states as to matters entirely independent of each other. But there is another rule, the consequence of a system which maJies form rather than substance the test, which the Code repudi- ates. Though debt or assumpsit will lie upon a promissory note, or upon other unsealed contracts for the payment of a sum certain, a count in debt cannot be united with a count in assumpsit, because in the two actions the form of the judgment is not the same;'" and, in general, counts in assumpsit, debt, covenant, or account cannot be joined in the same declaration, though all sounding in contract, because of the different forms of the pleading and of the judgment. So, in torts, the joinder of counts in trespass and case is forbidden, because they have no formal aflSnity, although the wrongs them- selves are sometimes so nearly alike as to make it difficult to deter- mine which form to adopt. In suits in chancery, while formal counts embodying different causes of action are unlcnown, yet distinct claims of a similar nature between the same parties, and involving similar principles and re suits, can be embodied in one bill, to be heard and adjudged togeth- erJ" Thus, one who holds different demands, secured by different mortgages upon the same property, has as many different causes of action, but his right to enforce his equities by one proceeding was never doubted. In addition to the contracts themselves, the prop- erty against which the several liens are sought to be enforced, or perhaps mo'*'^ properly its title, forms the subject-matter of the ac- tion and they should all be adjusted together. Also when liens upon, or claims to, the same property are made by third persons, they are so connected with it as to permit, perhaps require, such persons to be made parties and the whole to be adjusted together. Thus, upon this subject, as upon so many others, the equity practice foreshadowed the chief provision of the Code «7 1 Chit. PI. (Ed. 1876) 199; Id. (Ed. 1876) *221. «8 Chit. PI. (Ed. 1876) 201, and p. 199, note -4; Id. (Ed. 187C) •222, note p. ea Cbit. PI. 200. »o Story, Eq. PL § 531 et seq. (211) §125 OF THE ACTION. [PAKT I. § 135. First Class: Union of Causes of Action under- Meaning of the Term "Transaction." Except in a few of the so-called code states, the first class of causes of action that may be united in one complaint or petition are those that arise "out of the same transaction, or transactions connected with the same subject of action."" Transaction is a broader term than contract, including not only that, but any occur- 71 Ante, § 112. The C!onnecticut Practice Act of 1879 gives this class as No. 7 in the following language: "Upon claims whether in contract or tort or both, arising out of the same transaction or transactions connected with the same subject of action." [This provision of the statute is not as yet fully and accurately fixed and defined by the courts; and neither can it be, Indeed, except in the most general way. Bach case must stand alone. One of the best illus- trative cases is that of ADAMS v. BISSELL, 28 Barb. 382. This action grew out of a contract to carry 3,000 bushels of wheat from Buffalo to New York. Upon the arrival of the cargo of wheat, and after the plain- tiff had paid the freight on the 3,000 bushels, it turns out that there had been a wastage in the wheat of some 340 bushels, which would reduce the amount of freight payable by $170. The complaint separately stated two causes of action. The first alleged a wrongful conversion of 340 bushels of wheat, and damages for the conversion of the same; the second alleged an overpayment of freight on the shipment to the amount of $170, and demanded judgment for that sum with interest. The defendant demurred. In passing upon the question raised by the demurrer, the court said: "It must be ad- mitted that the first cause of action is for a tort, and that the second is on an implied contract to recover back money paid by plaintiff under a mistalie of fact; but the counsel for the plaintiff insists that both causes of action arise out of the same subject of action, viz. the ti'ansportation of wheat from Buffalo to New York, or arise out of transactions connected with that sub- ject of the action, and are therefore joined under the first subdivision of the Code." After somewhat extended argument, and evidently confusing him- self over the terms "transactions," "cause of action," and "subject of action," he cOhckides that the causes were properly joined, and that the contention of the plaintiff's counsel was correct The "transaction" here was the con- tract to transport the grain from Buffalo to New York, with all of its inci- dents. The "subject of the action" was the thing with reference to which the contract was made. The "cause of the action" was the failure to comply with the terms of, and fully complete, the contract. See, for further illustra- tion of the meaning of this phrase, "same transaction or transactions," JONES v. THE CORTES, 17 Cal. 4-87; PALEN v. BUSHNELL, 46 Barb. 24.] (212) '-»• IX.J JUIiNDEK OF CAUSES OF ACTION. § 125 rence between parties that may become the foundation of an ac- tion.'- If, from any one transaction, or from transactions, if con- nected as above, it is possible for more than one cause of action to arise, in favor of the same and against the same parties, whether sounding in contract or in tort," or whether called legal or equitable, they may be united in one complaint. There is danger that the pleader will split his cause of action by supposing that he has more than one, either because his demand consists of various items or because the plaintiff may be entitled to more than one kind of re- lief; and there is also danger that he may suppose that two or more transactions are one, because they occur together. From the first danger he has already been sufl&ciently guarded;^* an instance of the second wUl suffice for that. It is not uncommon for one who assaults and beats another to apply, at the same time, a slanderous epithet. Are the battery and the speaking the same transaction — the same act? If one should strike another several blows in succession, it would be but one beating; if he should strike one person and strike or kick another at the same time, there would be two beatings and two offenses — that is, two transactions, and not '2 The etymology of a word is sometimes suggestive, altliough, by reason of changes in the meaning of words, it may become an unsafe guide. The root of the noun is tlie verb "transact," from "ti'ans" and "ago," to go or pass over from one to the other, something connected with two or more, which would usually apply to contracts, but may, also, to injuries committed by one upon, or in respect to, another. The word, in this connection, can- not have the meaning of compromise or adjustment, given it in the civil law, and it must mean more than contract; otherwise, the term "contract" would be used. When spealiing of counter-claims, the term is used in ad- dition to, and not as a substitute for, the term "contract." 73 I find the following language in Lane v. Cameron, 38 Wis. 603: "Tlie proposition that a complaint might be so framed as to state in any number of counts, a cause of action ex contractu, and also one ex delicto, and still be a good pleading, is one we should be unwilling to sanction— certainly where any objection was taken to the misjoinder." This remark must have been made unadvisedly. The Code of Wisconsin (2 St. 1871, c. 125, § 31) copied the provision of the New York Code specifying the causes of action that may be joined in one complaint and the learned judge, in this dictum, could not mean to judicially hold that causes of action ex contractu cannot be properly united with causes ex delicto, provided they arise "out of the same transaction or transactions connected with the same subject of action." T4 Ante, § 118. (2i:]) § 126 OF THE ACTION. [PART I. between the same parties. The tenn "transaction" has the element of time, but is not controlled by it; for two things done at the same time may be so different in their nature that they cannot be called the same act This precise state of facts— that is, the beating and slander— was held in the Supreme Court of New York to make two transactions, the court using the phrase "the same thing done" as equivalent to "the same transaction." '= In the English Court of Ap- peals it is held that one who is driving a cab and who is injured per- sonally and whose cab is broken by the negligence of the driver of another cab has two causes of action.'* § 126. Continued— What is the Subject of the Action. Not only under this class may all causes of action that arise out of the same transaction be united in one proceeding, but also those that arise from different transactions, provided they are "connected with the same subject of action." It then becomes necessary to understand what is the subject of an action, also the character of the connection that will authorize the union. The cause of action has been described as being a legal wrong threatened or committed against the complaining party; and the object of the action is to prevent or redress the wrong by obtaining some legal relief. The subject of the action is, clearly, neither of these; it is not the wrong which gives the plaintiff the right to ask 70 Anderson v. Hill, 53 Barb. 238, overruling Brewer v. Temple, 15 How. Pr. 286. See, also, Dragoo v. Levi, 2 Duv. 520, where it is held that causes of action for slander, and malicious arrest, and false imprisonment cannot be unit- ed. A different ruling has been had in Kansas. The petition united two causes of action, which arose as follows: H. met A., called hini a thief, charged him with stealing a horse, arrested him, and threw him in jail. A. sued H. for slander and false imprisonment. The court sustained the joinder, be- cause they arose out of the same transaction, although actions for injuries to character cannot be united with injuries to person, and aflSrmed the de- cision below in overruling a demurrer for misjoinder. Harris v. Avery, 5 Kan. 146. The correctness Of this ruling in assuming that the arrest and spealung the words were the same transaction, because they occurred at the same time, and were the result of the same passion or impulse, is questioned. In Connecticut by rule 2, § T, under the practice act of 1879, simultaneous torts may be joined as arising out of the same transaction. 78 Brunsden v. Humphrey. 14 Q. B. Div. 141, Coleridge, 0. J., dissenting (214) CH. IX.J JOINDER OF CAUSES OF ACTION. § 126 the interposition of the court, nor is it that which the court is asked to do for him, but it must be the matter or thing, differing both from the wrong and the relief, in regard to which the controversy has arisen, concerning which the wrong has been done; and this is, ordinarily, the property, or the contract and its subject-matter, or other thing involved in the dispute. Thus, in an action to recover the possession of land, the "right" is the right of possession; the "wrong" is the dispossession ; the "ob- ject" is to obtain possession; and the "subject," or that in regard to which the action is brought, is the land, and usually its title. In an action for money due on a contract, the right is to the money; the wrong is the refusal to pay it; the object is the relief — that is, a judgment for the amount due; and the controversy is in regard to the subject-matter of the contract, which is not only the promise, but the consideration, and the matter, so far as it can be inquired into, in respect to which the promise has been made. As, if the agreement had been to pay money for land, the land and the title to it, so far as they affect the contract, enter into it, become part of its subject-matter, and, with the promise, become the subject of the action. If the contract be to do something else than to pay money — as, to perform labor — the thing to be done becomes part of the sub- ject-matter of the contract, and enters into the subject of the action. If the suit be brought against the immediate indorser of commercial paper, as between him and his indorsee — the consideration may be inquired into and becomes part of the subject of the action; but if brought by one between whom and the indorser the consideration cannot be inquired into, the subject of the action becomes more lim- ited, and may be confined to the note itself, to the fact of its execu- tion, indorsement, etc. In an action for a tort, the injury com- plained of is the wrong, and the subject of the action would be that right, interest [relationj, or property which has been affected — as, in replevin or trover, the property taken; for libel or slander, the plaintiff's character or occupation; for an injury to a servant, the service; for the seduction of, or for harboring a wife, the marital relation; for negligence, the duty, property, or person in respect to which the negligence occurred; for false imprisonment, the plain- tiff's liberty; and for trespass upon property, the property. In an action for assault and battery, it is difScult to distinguish the sub- (215) § 126 OF THE ACTION. [PART I. ject from the cause of action, from the right to ipamunity from per- sonal yiolence and its infringement: that is, the beating. The term, cause of action, and the facts jthat constitute it, form an essential part of the subjet;t-matter of enquiry, and we might per- haps so extend the phrase, "subject of the action," as to embrace them, were not the effect sometimes to improperly narrow the plaintiff's right to unite different causes of action, or the defendant's right to o Fieischmann v. Bennett, 87 N. Y. 231. »i Swinney v. Nave, 22 Ind. 178. But if the defendant goes to trial with- out objecting to the duplicity, it is not eiTor. Alpin v. Morton, 21 Ohio St. 530. oa Oracroft v. Cochran, 16 Iowa, 301. Cole, J., applies to slanderous words the language of Strong, J., in Secor v. Sturgis, 16 N. Y., on page 558, that: "In case of torts, each trespass, or convei-sion, or fraud, gives a right of action, and but a single one, however numerous the items of the wrong or damage may be." (223) §132 OF THE ACTION. [PART I. to person from those affecting property, and unite all affecting the person only — as, assault and battery, slander, etc. This union would be natural for the reason that, by the law of England, as adopted in most of the states, there is a marked distinction between injuries affecting the person only and those affecting the estate or property of the person injured, in this: that actions based upon the former abate by the death of either party, and the right of action is not as- signable; while actions on account of injuries to property survive in favor of or against the proper representatives of a deceased party, and the right of action may be assigned.'' The Code of Indiana alone follows this classification, making of the second class "injuries to property," and one of the third, "injuries to person or character; " ** while the codes of California,'^ of Oregon,'" and of Nevada," pre- serving in a distinct class injuries to character, separate injuries to person from injuries to property. § 133. Fifth Class: Ejectment. The fifth class embraces "claims to recover real property, with or without damages for withholding thereof, and the rents and profits of the same." They are enforced at common law chiefiy by the action of ejectment, and by trespass for mesne profits. The object of the clause is not so much to authorize the recovery of damages in real actions as the union in one proceeding of causes of action for the recovery of distinct parcels of land. In prosecuting this ac- tion, whether the wrong is a single one, furnishing but one cause of action, or whether there has been a dispossession of different parcels, at different times, having no connection with each other, thus mak- ing a separate cause of action in regard to each parcel,'* it is not disputed that, as to each cause of action, the plaintiff' may claim pos- session, with the damage and rents spoken of, or may claim possession alone and prosecute the money demand by an independent action." »3 Ante, §§ 39-43. «* Section 70 (Kev. St. 1881, § 278). »5 Code Civ. Proc. 1876 and 1885, § 427. 06 Code Civ. Proc. § 91. 87 Oomp. Laws 1873, § 1127. «s BOLES V. COHEN, 15 Cal. 150. »o VANDEVOORT v. GOULD, 36 N. Y. 639; Walker v. Mitcliell, 18 B. Mon. '(■224) ■CH. IX. J JOINDER OF CAUSES OF ACTION. § 132 If the complaint claims possession only, failing to set out the facts which show the money demand or its amount, it is held to be error to admit evidence in regard to the damages, or to render a judg- ment for them-io" The statute authorizes the plaintiff to elect whetlier to seek possession alone or possession with damages, and the omission to describe and ask for the latter indicates the election. Whether one or both be sought, there is but one cause of action, one wrong — the dispossession; the success of the claim for damages and rents depends upon the success of the claim for possession,^''^ and it is but a claim for additional relief. Though there is but one cause of action yet the permission given b}' the words "with or with- out," etc., relieves a pleader, who seeks possession only and by an- other action seeks for damages, etc., from the consequences of split- ting a cause of action; thus is followed the common-law practice in ejectment. The permission to unite applies to actions to recover the property itself, hence a claim to recover possession of one parcel of land cannot be united with a claim for the rents and profits only of another parcel.^"- In prosecuting this action, equitable relief in respect to the land in jsuit, is sometimes and properly sought, more often to prevent injuries in the nature of waste. This is not, however, a joinder under this clause of the statute, but is either the ancillary relief which the court will sometimes give, or if the injury or other matter complained of be a separate cause of action, it is one connected with the subject of the action, that is, with the land.^"' 541; Burr v. Woodrow, 1 Bush, 602; Sullivan v. Davis, 4 Cal. 291; Arm- strong V. Hinds, S Minn. 254 (Gil. 221). looLARXED V. HUDSON, 57 N. Y. 151, approving Livingston v. Tanner, 12 Barb. 481. The causes of action are said to be distinct, and each must 1)6 sustained by proper averments. But, in fact, there is but one cause of action; [Armfitrong v. Hinds, 8 Minn. 254 (Gil. 221).] 101 "They are one cause of action." Sullivan v. Davis, 4 Cal. 291. Sec, also, Lord v. Dearing, 24 Minn. 110. 102 Holmes v. Williams, 10 Minn. 164 (Gil. 140). 103 In NATOMA WATER & MIN. CO. v. CLARKIN, 14 Cal. ,544 [this was an action to recover certain lands jn an action of ejectment, and also an in- junction to restfain the commission of trespass in the nature of waste, pend- ing the action. Complaint held good], Field, J., recommends, when an in- junction is sought pending the action of ejectment, that the complaint should BLISS CODE PL. — 15 (2253 § 134 OF THE ACTION. [PART I, § 133. Replevin. The sixth class embraces "claims to recover personal property,, with or without damages, for the withholding thereof." This is known as the modernized action of replevin, and the same rule as to- the application for damages holds as in the real action.^"* § 134. Claims against Trustees. The seventh class provides for a union of "claims against a trustee,- by virtue of a contract or by operation of law." This class is extend- ed in Missouri and Connecticut to actions in favor of trustees, the provision embracing claims by or agai;ist a party in some representa- tive or fiduciary capacity, by virtue of a contract or by operation of law."= add to the first count— "And for equitable relief pending the above action' the plaintiff further represents;'' or "and for a further cause of action, the- plaintiff represents." The injury to the land, as by destruction of timber, is distinct from the mere dispossession and may be well called "a further cause of action." But Cole, J., in Riemer v. Johnke, 37 Wis. 258, treats the injunction against such injuries as a provisional order, proper to be made- pending the action but not as springing from a cause of action itself, citing Gillett v. Treganza, 13 Wis. 472. 101 PHARIS V. CARVER, 13 B. Hon. 236. [This was an action by ordinary proceedings to recover eight hogs, joined with an action to recover $100, dam- ages for the taking and detention of the same. The defendant demurred. The demurrer was overruled. The court said: "Claims for the recovery of specific personal property, and damages for the taking or withholding thc- same, may be united in the same petition or complaint."] 105 Instance of joinder. Williams v. Lov&, 4 Neb. 382. (226) PART II. OF PLEADINGS. BLISS CODE PL. (227)* <^H. X.] GENERAL CONSIDERATIONS. § 135 CHAPTER X. GENERAL CONSIDERATIONS. Section 135. Definition of Pleadings. 136. Every Statement of Pacts constituting a Cause of Action or a Defense implies a Proposition of Law. 137. ITie logical Formula— Illustration. 138. Why are written Pleadings required? 139. This End not reached at Common. Law. 140. But Evidence should not be pleaded. 14\. Other Systems must be imderstood. 142. Singleness of Issue a Fiction. § 135. Definition of Pleadings. 'Tleadings are the mutual allegations between the plaintiff and defendant, which, at present are set down and delivered into the proper ofQce, in writing, though formerly they were usually put in by coimsel ore tenus or viva voce in court, and there minuted down by the chief clerk or prothonotary." ^ In Chancery, pleadings from the beginning have been in writing; the first application to the court is by bUl, which is a petition addressed to the chancellor; it contains a statement of the facts upon which the petitioner relies more in de- tail and in less technical language than is proper in a common-law 1 3 Bl. Comm. 293. [In Bacon's Abridgement (title "Pleas and Pleading") it is said that "pleading, in general, signifies the allegations of parties to suits, when they are put into a proper legal form." And, again: "Pleading, in strictness, is no more than setting forth that fact which, in law, shows the jus- tice of the demand made by the plaintifE or tlae defense made by the defend- ant." And, again, in Read v. Brookman, it is said that "pleading is the formal mode of alleging that on the record which would be the support or defense of the party on evidence." 3 Term R. 159. The pleadings are the written allega- tions of the parties, plaintifE and defendant, in a logical and legal form, show- ing the facts upon which they rely for their relief or defense, respectively. 1 Chit. PI. 213; Robinson v. Rayley, 1 Biurows, 319; Magwire v. Tyler, 47 Mo. 115; Gould, PI. 15. See, also, section 5058 of the Ohio Revised Statutes, which has been adopted substantially by the code states; Code Civ. Proc. Cal. § 420; Code Iowa, § 38.51; Consol. St Neb. § 4629; Rev. St. Ind. § 335; Gen. St. Kan. par. 4167.] (229) § 137 OF PLEADINGS. [PART II. declaration; many formulas deemed essential in the latter are alto- gether omitted in the former; yet, both in actions at law and in suits in equity, the pleadings are but the mutual allegations of the parties as to the facts constituting the cause of the action or the defense, "de- livered into the proper oflflce, in writing" and expressed in legal form. In the more general sense of the term, pleadings include demurrers, or formal objections to the legal sufficiency of an adverse pleading, and in this sense I shall use the term, although it is sometimes ap- plied only to allegations and denials in respect to matters of fact. § 136. Every Statement of Facts constituting a Cause of Action or a Defense implies a Proposition of La-w. 'No system of pleading can be devised that requires a statement of the facts that constitute the cause of action, or of facts that constitute a defense, where the statement itself does not imply a proposition of law.^ called trespass on the case, and each have their appropriate rormu- las," which must be followed. But in the most common of all th(> actions, where the defendant only denies the promise charged, he is permitted to prove upon the trial almost any special defense — as, infancy, coverture, duress, fraud, etc. — which admits the promise, but avoids its effect. The pleadings thus come very far short of stating upon paper the facts constituting the defense, nor does the declaration always give the true cause of action. To say nothing of fictitious averments, which are inconsistent with any true theory of s See post, § 422. e pSfo set fcirm of words is now essential, under the Code, in the statement of any cause of action or defense. The pleader may choose his own lan- guage, and state his cause in his own way, if in so doing he confines himself to facts which are pertinent and material. Under the Code, that pleading Is best which states clearly, in the fewest words, the facts from which flow all the legal conclusions neeesscii-y to the support of the pleader's case. Skill in pleading is still an essential qualification of a successful lawyer, and a proper pleading is as important now as formerly; but the Code regards the substance, rather than the form, of a pleading, and mere technical defects by which neither party could be prejudiced have ceased 'to be important.] (235) § 139 OF PLEADINGS. [PAET II. pleading, we have the common counts ' in assumpsit and debt, -which are sustained by evidence that does not pertain to their subject-mat- ter. A connection is supposed, but it is merely conjectural, and the counts are equally sustained if it does not exist; no care is taken tO' compel the parties to make their issues cover the real facts in dispute. The defendant is often encouraged to "lie low," to keep his real de- fense in the dark, to subject his adversary to the trouble and expense, frequently great, of proving what was never disputed, and which forms no part of the actual controversy. Even the rule against sham 7 [The following is a declaration at common law and the answer, eonslsting- of a general denial, which will serve to illustrate how difficult it may be at times, under that system, to ascertain from the record, made upon the pleadings alone, just what the point in issue really is; and yet the boast of the common-law sj'stem is to reduce the controversy to a single, specific point or matter affirmed on the one side and denied on the other. Will the common-law lawyer explain the boast of his system by using this illustration?' [State of Michigan, ) [In the Circuit Court, V On the 1st day of October, A. D. 1894 [For the County of Washtenaw. ) [County of Washtenaw, ss. [John Doe, Plaintiff herein, by E. F., his Attorney, complains of Kichard' Roe, Defendant herein, of a plea of trespass on the case upon promises, tiling this declaration as commencement of suit: [For that Whereas, The Defendant heretofore, to wit, on the 1st day of October, A. D. 1S94, at Ann Arbor in said County of Washtenaw, was in- debted to the Plaintiff in the sum of Three hundred Dollars, for the price and value of goods then and there sold and delivered by the Plaintiff to the Defendant at his request. [And in a like sum for the price and value of work then and there done, and materials for the same, provided by tlie Plaintiff for the Defendant, at his request. [And in a like sum for money then and there lent by the Plaintiff to the Defendant, at his request. [And in a like sum for money then and there paid by the Plaintiff for tlie use of the Defendant at his recuest. [And in a like sum for money then and there received by the Defendant for the use of the Plaintiff. [And in a like sum for money then and there found to be due from the Defendant to the Plaintiff on an account stated between them. [And Thereupon, The said Defendant afterwards, and on the day and. (236) CH. X.] GENERAL CONSIDERATIONS. § 140 pleadings, while good against certain false special defenses, fails to derolop the true issues. But the rationalizing spirit of the aye is shown not only in the Codes, but in the great changes made in England and in most of the states which pretend to retain the common-law system. As thus reformed, their system is but statutory, almost as much so as that of the so-called code states. § 140. But Evidence should not be pleaded. The only legitimate object of pleading, which requires that the facts constituting the cause of action or the defense should be plainly and truly stated, does not require that evidence be pleaded. Bills of discovery are no longer necessary; the facts upon which the pleader relies — those which in law create the liability or make the defense, and not the many evidential facts that go to establish them — should alone be stated. It is true that sometimes the controversy would be better under- stood were the parties to give in detail the circumstances that hav(? given rise to it — that is were they to state the various probative facts which are relied on to establish the demand or the defense. This mode is said to prevail upon the continent, is followed in the year aforesaid, in consideration of tlie premises respectively, then and there promised the Plaintiff to pay him the said several sums of money, respect- ively, on request: i'et the said Defendant has disregai'ded his said promises and has not (although often requested so to do) paid any of the sums of money, or any part thereof; to the Plaintiff's damage of Five hundred Dollars, and therefore he brings suit, etc. [E. F.. [Plaintiff's Attorney. [The ansiDer or plea to the above dedaralion mav be as follows: [The Circuit Court for the County of Washtenaw. [John Doe, Plaintiff, [vs. [Richard Roe, Defendant. [And now comes the said Defendant, by .T. H., his attorney, and demands a trial of the matters set forth in the declaration of the said Plaintiff. • [J. H., [Attoiiiey for Defendant.] (237) § 141 OF PLEADINGS. [PART II. admiralty courts, colors our proceedings in equity, and is not with- out its advantages. But to minds trained to the theoretic precision of common-law pleadings, who have seen the necessity of mailing is- sued as distinct and simple as possible, in order to be clearly seen by the jury, such pleadings seem bungling, unscientific and con- fusing. Besides, there is this practical objection to pleading evidence: a party may well know the question in dispute between him and his opponent, the issuable fact or facts upon which he relies, and yet be not as well advised as to the evidence. Upon the trial the probative facts may somewhat differ from what he had anticipated, and still sustain his demand. If spread upon the record, their de- nial would often make an immaterial issue, questions of variance would constantly arise, and, if justice were done, it would often become necessary either to make special issues, after the equity practice, or submit to the jury the substantial issues between the l»ai'ties, although not made upon paper. Hence the rule, hereafter to be considered, that evidence should not be pleaded. § 141. Other Systems must be understood. It is assumed that the student of the Code is familiar with the common-law and equity systems of pleading. If not he is groping in the dark, and much that is offered will escape his apprehension. This knowledge is deemed essential, not only because well educated lawyers must know the history of our jurisprudence, must live through, as it were, and measure every step of its marvelous progress, but because the foundation idea of pleading has not been changed. The common-law system was always, in theory, a logical one. In practice it has become greatly corrupted, so that the pleader, in burdening his memory with mere forms and mere fictions, with the rales governing the probata in cases where they have no connection with the allegata, in seeking familiarity with an artificial style, and in familiarizing himself with artificial reasoning, loses sight of the theory, and the system, in many of its applications, came, long be- fore our day, to be anything but logical. (238) CH. X.] GENERAL CONSIDERATIONS. § 14 2 Code pleading, so called, is but a reform, not a destruction — a radical one, it is true, and, in the view of many, more ladical than was called for. It is believed by many good lawyers that if the changes had been more like those effected by the Hilary Eules, under the act of 4 Wm. IV. and the English Common-law Trocedure Act of 1852, with the liberty to make equitable defenses and the re- quirement that pleadings be sworn to, the chief object of the r(-- form would have been secured and many doubts and perplexities would have been saved. But, be that as it may, the two systems run into each other and both must be understood. This is especially true in regard to the equity system from which so many features of the code are taken. § 142. Singleness of Issue a Fiction. It is the boast of common-law pleaders that their system reduces the controversy to a single issue,* and thereby facilitates investiga- tion by simplifying the questions upon which the jury is called to pass. When the only issue of fact in a given action is tendered by a replication or subsequent pleading, it is specific and single, but issues tendered by the plea are seldom so, even in form. The plea may specially traverse some material fact stated in the declaration, in which case the issue will be really single and direct; but, inas- much as the general issue puts in issue all the material facts, the special traverse is almost unknown in practice. The general issue is the great plea, which, in terms, denies nothing that the plaintiff is required to prove, yet in effect compels him to prove everything — every fact necessary to constitute a cause of action; and not only that, it also permits the defendant to offer in evidence many new matters available as a defense. What he may thus offer, and what he may not, is determined by no principle, and in regard to such a new matter, there is not only no single issue, but no issue at all on paper. In assumpsit there is a formal issue, a traverse of the promise, yet the fact traversed is either an inference or a fiction. Instead of being required to prove such promise the plaintiff must prove other facts which create a liability; and to keep up a seeming « [See, ante, § 139, note.] (23!)) § 142 OF PLEADINGS. [PART II. connection between the cause of action and the pleadings, we have the doctrine of implied promises. Nil debit and not guilty deny nothing in terms, put notliing in issue except the defendant's liability, which is not a fact, but a conclusion; they purport to put in issue the tliird member of the syllogism, which is impossible, as it is a mere inference; and non est factum is hardly better. The Code makes no pretense to singleness of issue, but it does seek to make every issue clear and definite, and to narrow the dis- pute and develop the real matter in controversy. Duplicity is con- demned, the pleading of evidence is forbidden, general issues are abolished, inconsistent defenses are not permitted, and the oath is generally required. (240) CH. XI.j THE COMPLAI.NT OB PETITION. § 14;> CHAPTER XI. OF THE COMPLAINT OR PETITION— THE TITLE— THE STATEMENT. Section 143. The Order of its Parts. 1. The Title, which contains the Name. 144. Of the Court and County. 145. Of the Names of the Parties. 146. The true Name should be given. 146a. As to Initials. 146b. The Idem Sonans and Variance. 147. Where the Name is unknown. 2. The Statement. 148. Scope of the present Inquiry — The introductory Words. 149. The Inducement and Gist. 150. What Classes of Facts are Matter of Inducement. 151. Fictitious Allegations. 152. 1. The Fictitious Promise. 153. 2. In treating a Tort as a Contract, how should the Facts be stated? 154. The Right to so treat it inferred from an Enlargement of the Remedy. 155. The Inquiry resumed. 156. 3. The common Counts — When are they permitted? 157. The judicial View. 157a. Continued. 15S. 4. As to pleading Matters according to their legal Effect — Contracts may be set out in haec Verba or accordiug to their legal Effect. § 143. The Order of its Parts. The codes embodying the reformed procedure agree in regard to the general frame of the complaint or petition, and require that it shall contain (1) the title of the cause, with the name of the county in which the action is brought, and the names of parties plaintiff and defendant; (2) a statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition; and (3) a demand of relief to which the plaintiff sup- BLISS CODE PL. 16 C211j S 144 OF PLEADINGS. [PART II. pos_'S himself entitled.^ The phraseology varies slightly in differ- ent states, but the order is the same. In New York, where the action may be brought in one county, to be tried in another, the title must specify the name of the court in which the action is brought, and the county which the plaintiff designates as the place of trial In New York, North Carolina, South Carolina, Connecti- cut, Indiana, Wisconsin, Minnesota, California, Oregon, Nevada, and Colorado, the statutory name for the first pleading is com- plaint, while in the other code states it is called a petition. They are words of the same significance in pleading, the former being derived from the common-law system, in which the plaintiff "com- plains" of the defendant, while in equity the plaintiiS is a petitioner. The statutes of Ohio, Kentucky, Iowa, Kansas, and Nebraska re- quire that the names of the parties be followed by the word "peti- tion." To the three parts of the complaint or petition, should be added (4) the oath which is required in most of the code states. 1. Tlw Title,^ which contnins the Name. § 144, Of the Court and County. As has been seen, the title must show the court in which the ac- tion is brought — as, the Circuit Court, the District Court, the Su- preme Court, or any court having original jurisdiction in the mat- 1 [This is the provision of tlie following Cocles: Code Civ. Proc. N. Y. § 481; Rev. St. Ohio, § 5060; Rev. St. Ind. § 338; Code Iowa, § 3852; Code Civ. Pi-oc. Cal. § 426; Code Civ. Proc. Colo. § 49; Gen. St. Kan. par. 4170; Gen. St. Minn. c. 66, § 91; Rev. St. Mo. § 2039; Consol. St Neb. § 4632; Rev. St. Wis. § 2646; Code N. C. § 233; Code Civ. Proc. S. C. § 163; Comp. Laws V. D. § 4fi07; Comp. Laws S. D. § 4907; Rev. St. Wyo. § 2447; Gen. St Conn. § 872; Mansf. Dig. Ark. § 5026; Code Civ. Pi'oc. Wash. § 188.] 2 [The following is the proper form of the title in all the jurisdictions: [State of . [County of . [In the (circuit, district, common pleas) com-t [John Doe, Plaintiff, | [vs. VPetition or Complaint. [Richard Roe, Defendant j [In some of the jurisdictions the title must be followed by the words, "Pe- tition or complaint" This is true in Ohio, Kansas, Nebraska, and Ken- (242) CH. xl] the complaint or petition. § 145 ter; and it must also show the county in which the cause is triable,^ Except in New York, the county in which the action is brought is the one in which it is to be tried — that one only is designated ; and in transitory actions, as Mill be hereafter seen, this is the only venue named in the pleadings.* § 145. Of the Names of the Parties. The full names of both plaintiffs and defendants should be given as plaintiffs and as defendants ^ — not, as at common law and in equity, by describing them in the body of the pleading, but in the form of a title to the cause, and they may be afterwards referred to, without naming them, as "the plaintiff" or "the defendant." In an action by or against a partnership, the full names of all the partners must be stated. Partners cannot, at common law, sue or be sued by their partnership names; but by statute in som'> of the states, as in Ohio,^ Iowa, etc., this is allowed, and, so far, tucky. If the title were laid in the supreme court, it would be the same as above, omitting the name of the comity. [What would be the effect of an omission of the title? It has been held that it would be a fatal objection. Ward v. Stringham, 1 Code Eep. 118. But, if the venue and the parties should be properly named in the body of the petition or complaint, this defect might be cured, or if the same were properly given in the summons served with the petition or complaint Am- merman v. Crosby, 26 Ind. 451; McLeran v. Morgan, 27 Ark. 148; Van Namee v. Pebble, & How. Pr. 198. An omission or defect in this particular should be taken advantage of by motion. Hotchkiss v. Croker, 15 How. Pr. 336; McLeran v. Morgan, 27 Ark. 148. The court may, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.] 3 As to New York, see Jlerrill v. Grinnell, 10 How. Pi". 31; Hotchkiss v. Crokor, 15 How. Pr. 336 i P<.st, §§ 284, 296. 5 "I II all actions the writ and declaration must set forth accurately the Christian and surname of each plaintiff and each defendant. Our present code of civil procedure seems to have made no change in that rule." Pollock V. Dunning, 54 Ind. 115; [Dale v. Thomas, 67 Ind. 570; Kellam v. Toms, 38 Wis. 601.] [Haskins v. Alcott, 13 Ohio St. 210. If the common-law rule as to partners has not been changed by statute, the i)artners should be named individually; (241?) § 145 OF PLEADINGS. [PAKT 11. partnerships are treated as corporations. Elsewhere their de- mands are joint and personal, and must be enforced by them as in- dividuals. The liabilities also of partners are personal liabilities, and they or their survi-^'ors are jointly liable, unless, as in Missouri, the statute severs the liability and authorizes an action against one or more of them. It is not absolutely necessary that the title describe the parties as partners and give the partnership name, provided the facts appear in the body of the complaint; but it is always best to do so. So, when one brings an action in a representative capacity, or sues another in that capacity, the title should show the relation. Thus, if John Doe, an administrator, wishes to recover a debt due Ms intestate from James Jackson, who is deceased, he should en- title the action as follows: "John Doe, as administrator of the es- tate of Henry Smith deceased, against Eichard Eoe, as executor of the will of James Jackson, deceased." The word "as" should not be omitted; it is necessary to show the relation between the parties and the estates represented, and that they are in court, not for themselves, but for their estates.^ "John Doe, administra- tor," etc., may be an indication as to which John Doe is meant if there is more than one, as a means of identification, to distinguish him from another who may be a guardian, or a merchant, or some- thing else. The words of addition merely are called descriptio per- sonae, and because he is an administrator, and so says, it will not follow that the action is on behalf of the estate unless the fact appears. The rule applies to all who sue in a representative character,^ thus, "John Doe and Richard Roe, Partners, Doing Business under the Firm Name of Doe & Co., Plaintiffs, vs. John Smith and Henry Jones, Partners, Doing Business under the Firm Name of Smith & Co., Defend- ants." But, where the statute permits them to be sued in their firm name, then the following would be sufficient: "John Doe & Co., Plaintiffs, vs. Smith & Co., Defendants."] 7 Sheldon v. Hoy, 11 How. Pr. 11; Bennett v. Whitney, 94 N. Y. 302; [State V. Bartlett, 68 Mo. 581.] 8 [Puhlic Officers. [The statutes of many of the states permit public ofllcers to sue In their own name (but with their official title added), by virtue of their official char- (244) *'If- XI.] THE COMPLAINT OE PETITION. § 1-16 both in the title and statement," yet, if the word "as" be omitted, the plaintiff may claim in a representative capacity if the body of the pleading shows that he acts in the premises only in such capaci- ty.i" In a suit by an infant, the title should be "A. B. plaintiff, by C. D. his guardian," etc., but a title defectively stated is not error, if the names appear correctly in the body of the pleading." And even if the title is omitted altogether, but the names of the parties are given in the statement, the pleading is not, hence, subject to a demurrer. Thus, the following, after giving the court and county, was held to be a substantial compliance with the statute: "Charles Crosby complains of John Ammerman, and says," ^- etc. It should not, however, be inferred that the requirement in respect to the title is a dead letter; a non-compliance, though not fatal if properly supplied, will subject the pleader to the costs and delay of a motion to correct his pleading. § 146. The true Name should be given. Even where a judgment has been obtained against a defendant by a wrong name, an action upon the judgment should be brought against him by his true name; but that there may be no variance between the title and the description of the judgment as plead- ed and as given in the record, the identity of the parties should be acter. The statement of tbe petition, however, should contain proper aver- ments of their official character. Paige v. Fazackerly, 36 Barb. 392. [ Corporations. [A corporation should sue and be sued in its corporate name. At common law it was unnecessary to allege the corporate existence of the corporation (Dutch West India Co. v. Van Moses, 1 Strange, 612; Hem-iquez v. Dutch West India Co., 2 Ld. Eaym. 1532; Bank of Jlichigan v. Williams, 5 Wend. 478); but it was necessary to prove its corporate existence. Unless the common law has been changed, it is sufficient, under the Code, to allege simply the corporate name; as, "The Michigan Central Railroad Company," plaintiff or defendant.] 8 Gould V. Glass, 19 Barb. 179 et seq. 10 Beers v. Shannon, 73 N. Y. 292; State v. Bartlott, 68 Mo. 5S1. 31 Hill V. Thacter, 3 How. Pr. 407. 12 Ammerman v. Crosby, 26 Ind. 451; and to the same effect Is State v. Patton, 42 Mo. 030. (245) § 146 OF PLEADINGS. [PAET II. shown — as, that the judgment was recovered against the defendant by the name of Richard Roe, or whatever he was called.^^ If one is well known by two or more names, either name is the true one. At common law and in equity "parties can only sue in their true names. Where the contract or deed is executed to them in a wrong name, nevertheless plaintiffs must sue in their proper names, and may aver in their declaration that defendants made the deed or con- tract by the name mentioned." ^^ This is believed to be the rule under the Code, where the truth is required at every step, although in common-law pleadings different ones have been given.^' A mistake in a name may or may not be fatal. When A., B. and . 0. are sued upon a promissory note described as executed by them to C, a wrong name being given, and A. only was served with pro- cess and appeared, the plaintiff was non-suited because of the vari- ance; it is not the note described. But "a difference is taken when all the defendants are actually served with process; they then ap- pear and are in that way connected with the suit, though one comes in by a wrong name. In such case, if any one be misnamed, he and his co-defendants shall be bound by the name given unless he plead the misnomer in abatement." ^^ "A misnomer of the plaintiff iS no 13 2 Clilt. PI. 4S-4. 11 Board of Ed. v. Greenebaum, 39 111. 609; Becker v. German Mut Fire Ins. Co., 68 111. 412. 15 A defendant is, at common law, sometimes sued with an alias dictus. 1 Chit. PI. 256. If sued upon a bond he has been held to be estopped from denying the abode or place as named in the deed. Bonner v. Wilkinson, 5 Barn. & Aid. 682. And one must be sued upon a deed by the name by which it has been executed. Crawford v. Satchwell, 2 Strange, 1218; Gould V. Barnes. 3 Taunt. 504. If one is sued upon a bond executed by another name, it should be made to appear that he was then known by, or as well by, that name. Williams v. Bryant, 5 Mees. & W. 447. The grantee of a deed made to a woman by her maiden name, the grantor not knowing of her marriage, is permitted to give this reason for the use of such name. Scanlan v. Wright, 13 Pick. 523. AncienUy, the important name was the Christian, the baptismal, or, as it was then called, the proper name, the sm-name or family name being in the natm'e of an addition. But now the courts make no difference between the two; the question Is by what name is, or was, the party known. 16 Cowan. J., in Waterbury v. Mather, 16 Wend. 611, where the question is discussed at length. (246) *^'ll- XI- J THE COMPLAINT OR PETITION. § liG(t ground of non-suit if he identify himself as the real creditor or claim- ant and show that he is the party actually enforcing the proceed- ings and the defendant be not deceived." " A corporation should sue and be sued by its true name but if tht- name be similar, if the true party is in court and the objection for misnomer is not raised before pleading to the merits, the error will be disregarded.^* So if the popular name is used.^" § 146a. As to Initials. The initial of the Christian name is not the name ; at common laA\' a declaration thus describing a party is bad on special demurrer,-" and a defendant will be discharged on common appearance who has been arrested without setting out his Christian name in full.-' But it should be made to appear that the letter used is but an initial and not the name itself, for such letter whether vowel or consonant, may be the true Christian name.^^ The Code does not dispense with the rule which requires the pleader to give the true name, and, whether an apparently initial letter will be treated as itself a name must depend upon the man- ner in which the question is raised. In the absence of anything in the record, or in the pleading or motion, to the contrary, the court will be warranted in so treating it. The party who objects to the pleading must do so for misnomer and give the true name; it then becomes a question of fact and no court will hold it good when it " 1 Saund. PI. & Ev. (5th Am. Ed.) Old. 91T. 18 School Dist. V. Griuer, 8 Kan. 224; Tape v. CajDitol B;vnk, 20 Kan. 440; State V. Bell Tel. Co., 36 Ohio St 296. 19 Gifford V. Rockett, 121 Mass. 431. 20 Turner v. Fitt, 3 Man., G. & S. 701. 21 Reynolds v. Hankin, 4 Bam. & Aid. 536. By tlie act of 3 & 4 Wm. IV. c. 71, it is provided that in actions upon written instruments if any of the parties are designated by an initial letter or construction of the Christian name, they may be described accordingly either in the affidavits, process or declaration. 22 Tweedy v. Jarvis, 27 Conn. 42. A plea in abatement for defect of parties, in giving the plaintiff a better writ, had named I. W. Hitchcoclv as a party to the contract sued on. The court held that I, for anything that appeared, might be the true Christian name. (247) § 14Gb OF PLEADINGS. [PART II. is properly made to appear that the letter is but an initial.^" But the obligation to give the full name does not call for a middle name. "The middle letter is no part of the name." ^* The law knows but one Christian name and the initial letter of another may be rejected as surplusage.^^ It is otherwise held in Massachusetts,^" and ap- parently in Ohio.^' § 146b. The Idem Sonans and Variance. A name is sometimes misspelled and even another given sounding like the true one, but not the same. The books abound in instances where the names of parties are incorrectly given, but they so sound as to be easily mistaken for the true ones. Men are known by their names as spoken, not written, and a failure in strict accuracy may often be looked for.^^ When a mistake is made in the name of a defendant it may, upon default, become a serious question whether the record should bind him.^° John Smith is not bound to appear in an action against Richard Jones though served with process, but if he is served as John Smythe he will not be excused for so slight an error. Thus Mars is idem sonans with Marres,^" Petris with Petrie,^^ McDonnel with 23 Bad, but not ground of demurrer. Gardner v. McClui-e, 6 Minn. 250 (Gil. 167). In Oliio parties to a written instrument by an initial letter or con- iTEction may be so sued. Kev. St. 1880, § 5010; [Zwickey v. Haney, 63 Wis. 404, 23 N. W. 577; Walgamood v. Randolph, 22 Neb. 493, 35 N. W. 217.] 24 Phillips v. Evans, 04 Mo. 17. 25 Choen v. State, 52 Ind. 347, citing the authorities. 26 Com. v. Hall, 3 Pick. 202; Com. v. Shearman, 11 Cush. 546. 27 Mead v. State, 20 Ohio St. 505. 28 The reader will note that in ordinary transactions, as in unwritten contracts, the proper spelling of a party's name does not appear. So in ancient pleading, the plaintifC in order to obtain the original writ gave his name orally to the chancery clerk, and when the parties came into the common-law court, the proper clerk drew the pleadings from their oral statements. It must necessarily suffice if the names are entered as pro- nounced or as might naturally be understood. 29 The name of a co-obligor, who does not appear, must be correctly given or there is a variance, but if he appear he must plead in abatement or he will be bound by the name given. Waterbury v. Mather, 16 Wend. 611. 30 Com. V. Stone, 103 Mass. 421. 31 Petrie v. AVoodworth, 3 Caiues, 219. (248) CH. XI.] THE COMPLAINT OR PETITION. § 147 McDonald,== Eiwin with Irvin,"" Brennan with Brenham,'^ etc., etc. If the defendant appears he may insist that his name be given truly which the plaintiff may do by amendment, but if he does not make the objection it is, at the most, but a misnomer; the error is one of form and is cured by pleading to the merits. If, however, :i defendant is charged upon a written instrument whose execution is denied, a question of variance may arise which will defeat the plaintiff, or will require him to amend his pleading. The error is not so easily corrected when the parties are correctly before the court, but the evidence involves collaterally a name which is not the same as pleaded, or as otherwise supposed. The appar- ent variance cannot perhaps be corrected by amendment and the only question will be whether it sounds sufficiently like the out: given or supposed that it may be easily mistaken for the other. The rule has been stated, perhaps rather too strictly, as follows: "It matters not how two names are spelled, what their orthography is; they are idem sonans within the meaning of the books if the attentive ear finds difficulty in distinguishing them when pronoun- ced, or common and long continued usage has by corruption or altera- tion made them identical in pronunciation." ^° A variance may be claimed arising from an abbreviation of the Christian name, but if it be so common as to be generally understood the court will take notice that it stands for the full name.'" § 147. Where the Name is unkno-wrn. A plaintiff who is ignorant of his defendant's name is expressly authorized, in some of the states, to designate him by a fictitious name and supply the true one when discovered.' ' "The deviation 32 McDonald v. People, etc., 47 111. 5;i3. 33 Williams v. Hitzie, 83 Ind. 303. 31 Miller v. Brenham, 68 N. Y. 83. 35 Sherwood, J., in Robson v. Thomas, 55 Mo. 581. Matthews and Mather held not to be idem sonans. 30 Post, § 191. 37 [Code Civ. Proc. N. Y. § 451; Rev. St. Ohio, § 5118; Rev. St. Ind. § 397; Code Iowa, § 3762; Gen. St. Ivan. par. 4226; Code Civ. Proc. Cal. § 474; Code Civ. Proc. Colo. § 76; Gen. St. Minn. c. 66, § 126; Consol. St. Neb. § 4685; Rev. St. Wis. § 2612; Code Civ. Proc. § 118; Gen. St. Nev. § 3091; Code N. C. § 275; (^4!)) § 147 OF PLEADINGS. [PART II. from the common-law rule must be strictly pursued. * * ♦ There must be a distinct allegation to the effect that the name so sued is by reason of ignorance." ^^ One thus sued is a proper party from the beginning, but no judgment can be taken against him un- less the complaint is amended by inserting the true name when as- certained.^" In Iowa, instead of giving a fictitious name, the plain- tiff is required to describe the defendant as accurately as practica- ble and to give the reason for so doing.*" In states with no statu- tory mode for bringing such unloiown persons into court, at most the pleading can only be objected to for misnomer. At common law this error is met by plea in abatement. Under the codes the practice is not settled,*^ but whether met by plea or by motion the true name must be given and the plaintiff will be permitted to amend. Code Civ. Proc. S. C. § 196; Comp. Laws N. D. § 4940; Comp. Laws S. D. § 4940; Rev. St. Idalio, § 4230. [When the true name is unknown, the following will be a sufficient allegar tlon: [State of Michigan, [County of Washtenaw. [In the Circuit Court, [E. F., PJaintifE, ) [vs. ^Petition. [RichaTd Roe, Defendant. J [The plaintiff complains of the defendant, and alleges: That he is unable to ascertain the true name of the defendant; that he brings this action against him in the above name; and that for cause of action against said defendant he alleges. [The true name must be ascertained if it can be. Gardner v. Kraft, 52 How. Pr. 499; Rosencrautz v. Rogers, 40 Cal. 489.] 38 Gardner v. Kraft, 52 How. Pr. 499. And see Rosencrantz v. Rogers, 40 Gal. 489. 38 Farris v. Merrltt, 6.3 Cal. 118, and cases cited. *o Codes of 1S73 and 1886, § 2557. 41 See post, § 42T. (250) UH. XI. J THE COMPLAINT OR PETITION. § 149 No. 2. The StMement. § 148. Scope of the present Inquiry — The introductory Words. Several chapters will be hereafter given to the consideration of rules that govern the statement of facts, and in this connection I shall speak only of general matters that concern the statement, and of suc'h particulars as in the classification to be given, cannot be conveniently embodied in rules. Where the names of the parties are correctly given in the title, and no explanation in regard to them is called for — as, an averment showing the character in ^hich they sue or are sued — it is not necessary to restate them, but it is sufficient to say, "the plaintiff states that the defendant," etc. The word "states" corresponds to the name of this part of the complaint, and hence is a very proper one, but any equivalent word wUl suffice — as, "alleges," "represents," "says," etc. The form of the narratio, a description of the parties and the facts, in the third person is preserved.^^ § 149. The Inducement and Gist. The common-law distinction between the facts which are of the gist or substance of the cause of action and those which are matter of inducement is a natural one; it does not pertain to the form merely of the pleading and code pleaders should continue to recog- nize it. Our system does not tolerate fictitious inducements — as, the loss and finding in trover — any more than fictitious allegations in respect to matters of substance, nor are traverses confined, as at common law, to a denial of facts which are of the gist; but it still sometimes happens that the main charge will not be understood, or will not create a habUity, either at all or as between the parties, without explanatory statements. The facts covered by these state- ments are frequently called extrinsic facts, and though not the main 42 [There is no required form for the commencemL'Dt of tlie petition or com- plaint. The general rule as to what the statement part of the petition shall contain is as follows: "The statement shall contain a statement of the facts, constituting the cause of action, in ordinary and concise language."] (251) § 150 OF PLEADINGS. [PART II. charge, they are material, and if denied, must be proved. The terms "gist" and "inducement," though seldom used in respect to code statements, are familiar to common-law pleaders, are not misleading, express a distinction readily recognized, and should be retained. The distinction may be less prominent than under the common-law system, both because of such fictitious inducements and because of the restriction in regard to their traverse; but so far as it is not artificial, no pleader can properly analyze the facts constituting his cause of action without noting it. Natural classification clarifies the understanding, and one should know the precise and relative bearing of all his facts. The distinction, moreover, is of practical importance with reference to the rule that in pleading matter of inducement less certainty or particularity is required than in matter of substance." § 150. What Classes of Facts are Matter of Inducement." Facts which are matter of inducement are either such as show a right in the particular person to institute the action, or a lia- bility on the part of the defendant, where such right or liability does not appear in the allegations showing the wrong; or, they ara facts necessary to explain or supplement such allegations in order to show that a wrong has been suffered; that is, they either go to the right or liability in respect to the parties, or to the right or liability itself. The question as to a right or liability in respect to the parties may involve the legal existence of a party — as, if an action be brought by or against a corporation. Upon principle, it is not sufflcient simply to use the corporate name, whether as plaintiff or defendant; but, inasmuch as a corporation is an artificial person — the creature of law — facts should be alleged which show its legal existence, and with such certainty as to be traversable if the defend- ant desires to put them in issue.*^ This question may also go to 43 Post, § :;ii. ^^[Tndti cement Defined. ["The inducement is that which is merely introductory to the essential ground or substance of the complaint or defense."] 45 This matter is hereinafter considered, §§ 240, 260. (252) CH. XI.] THE COMPLAINT OR PETITION. § 150' the right or liability in the particular case, as the action is by or against one in a representative capacity. Thus, if an executor or administrator, or a trustee, bring an action on behalf of the estate of the deceased, or on behalf of the beneficiary, he should show his relation; so if the plaintiff seeks to charge one by virtue of such relation. In either case the facts creating the relation should be so pleaded as to be traversable.''* The right or liability itself, without reference to the legal exist- ence of a party, or the character in which he sues or is sued, may depend upon facts extrinsic to the main charge. Thus, in an action for slander, words not actionable in themselves may be made so by a statement of some extrinsic fact. In a Missouri case the de- fendant was charged with saying that the plaintiff had burned a bam in Indiana, but there was no allegation that to burn a barn was an indictable offense in that state; and inasmuch as it was not a felony at common law unless the bam was fiUed with corn or was connected with a dwelling-house, the petition was held to be bad.^^ Publishing the words concerning the plaintiff, was the gist of the petition, but no fact was stated showing the criminal character of the act charged, and the court could not presume it to be criminal unless it was a common-law offense. It has been claimed that the court should presume that the statutes of other states, upon a given subject, are the same as in the state of their jurisdiction, but the presumption rather is, in the absence of evi- dence, that the common law prevails." So, if one be defamed gen- erally in regard to his profession, business, or trade, the fact that he is engaged in such business, etc., is an extrinsic one, to be pleaded; and words of depreciation in reference to the performance of a special undertaking or duty requiring skill would be meaningless, so far as their defamatory character is concerned, without the state- ment of extrinsic facts." Says Chitty: "The inducement or aver- ment by way of introductory allegation is peculiarly proper where a party is charged upon, or in respect of, the breach of a contract *8 This subject is also liereafter considered, §§ 261-2C7. 47 Cundy v. Hart, 46 Mo. 460. Opinion by the author. is Post, § 180, note. I know of no rule that would authorize a comt to pre- sume anything in regard to statutes of other states. 4» Chit. PI. (Ed. 1876) 410^18. (253) § 151 OF I'LEADINGS. [PABT 11. or implied duty resulting from any particular character or capacity of defendant." =° This doctrine is applied to declarations against attorneys, physicians, and mechanics, for negligence, and against carriers and innkeepers for loss of goods, the contract or possession of the property and the injury being the gist or substance while the allegations showing the occupation of the defendant, in reference to which the contract was made or the duty arose, show matter of inducement. § 151. Fictitious Allegations. In comparing the requirement to state the facts which constitute the cause of action with the statements allowed in common-law pleading, we must first necessarily inquire whether the C5ode for- bids fictitious averments; whether the law permits the pleader to state what in fact is not true, or whether the statement should coiTespond with the facts expected to be shown by the evidence. It would seem that upon principle, the inquiry could be answered in only one way: All forms of action are abolished, and the pleader is required to state the facts that constitute the cause of action or the defense — "the facts that constitute the cause of action," and not facts that constitute a cause of action, differing from the one to be established." The cause of action is the wrong that has been suffered, and the facts that show the wrong show the cause of action; they are the facts to be found; and, upon principle, they are the facts to be stated by the pleader. In further considering this subject, inquiry will be made, first, whether, in actions upon implied contracts, the fictitious promise should be still alleged; second, in treating a tort as a contract, whether it should be counted on as a contract, or according to the truth; third, whether the common count should be allowed, when it does not describe the real cause of action, and, fourth, may facts be pleaded according to their legal effect? 50 Chit. PI. (Ed. 1876) 297. CIAs, for example, an averment of demand and notice of protest will not sustain evidence of facts excusing such demand, etc. Pier v. Heinrichoffen, 52 Mo. 333; Garvey v. Fowler, 4 Sandf. 665; Lumbert v. Palmer, 20 Iowa, 104; Shultz V. Depuy, 3 Abb. Pr. 252. (254) CH. XI. J THE COMPLAINT OE PETITION. § 153 § 152. 1. The fictitious Promise. It should be borne in mind that fictitious averments are con- trary to the letter, and especially to the spirit, of the new procedure. This, the common-law pleader, who can hardly think of the state- ment of the facts constituting a cause of action except through the formulas and fictions of his system, finds it difficult to appreciate. The most common fiction is the promise in assumpsit. Even when the agreement sought to be enforced is express — as, that of the maker of a promissory note — tlie traversable allegation is that of a fictitious promise; that is, after describing the instrument and the defendant's obligation upon it, the pleader in assumpsit alleges that the defendant, in consideration of the premises, promised the plaintiff to pay him the amount due upon said note, as well when the plaintiff was indorsee, and may never have seen the defendant, as when he was payee — and this subsequent fictitious promise is of the gist of the action; its breach is the wrong which constitutes the cause of action; and the plea traverses that promise, and not the execution of the note. In actions of assumpsit upon implied contracts, the same express promise is stated and put in issue; and, in the latter class of cases, some pleaders, under the new system, continue to allege the promise. Is it necessary or proper, under the Code, to state this promise or understanding? The ruling upon this subject has not been uniform, although the weight of authority favors the negative an- swer."* § 153. 2. In treating a Tort as a Contract, how should the Facts be stated? Eeference is here had only to the class of cases where one who has suffered an injury may, to use the old phraseology, waive the 02 As showing that the promise should not be alleged, see "Wills v. Wills, 34 Ind. lOG; Gwaltnoy v. Cannon. 31 Ind. 227; Farron v. Sherwood, 17 N. Y. 227; Cropsey v. Sweeney, 27 Bai-b. 310; Jordan, etc., Co. v. Morley, 23 N. Y. 5.52; Allen t. Patterson, 7 N. Y. 470; Wilkins v. Stidger, 22 Cal. 231. Contra: Bird V. Meyer, 8 AVis. ;!02; Booth v. I'^irmors' & Mechanics' Bank, 05 Bai'b. 457; Id., 1 Thomp. & C. 45. (255) § 153 OF PLEADINGS. [PAET II. tort '■^ and sue as upon contract — (hat is, sue in assumpsit. Undei- the Code there is no assumpsit or other mere form of action, and yet the right to waive the tort, etc., is still recognized. There being no difference between assumpsit and trespass or case, except tliat which necessarily springs from the differing causes of action, the question arises. How shall the pleader indicate the fact that he has elected to sue in contract?" He may desire to unite in one com- plaint a cause of action arising from a conversion of property with one arising from the refusal to pay a promissory note; or, it may be important, when sued for breach of contract, to set off a demand founded upon such tortious conversion — in either case the inquiry becomes important. But before proceeding further to consider it, I will again ven- ture a suggestion as to the propriety, under the Code, of recognizing an implied contract as springing from a tort. ^^[WTiat is meant iy the phrase " Waiving a Tort"? [This phrase means no more than that by treating tlie matter as a con- tract he waives his right to pm-sue it as a tort, with the peculiar remedies, penalties, and consequences belonging to it in that character. Harway v. Mayor, etc., 1 Hun, 628. He by no means waives the right to give evidence of the real transaction, and of its true character, for that would be to waive all remedy. The waiver of the tort, therefore, is simply a declaration that the party elects to treat the facts as establishing an implied contract, which he may enforce, and one which the defendant is estopped, by reason of his wrong, from denying.] 54 [The character of a cause of action must in all cases be determined by an analysis of the averments in the complaint, together with the nature of the relief demanded; and, if there is any doubt whether the action is one sound- ing in contract or tort, every intendment is to be made, in construing it, in favor of the former. McDonough v. Dillingham, 43 Hun, 493. The fact that the petition or complaint contains allegations of fraudulent representations or deceit does not necessarily fix the character of the action as one sounding in tort. The determination of the question whether the action is for a tort or upon a contract depends upon the presence or absence in the pleadings of an allegation that the false representations and deceit and fraud were made with an intent to cheat or deceive. Sparman v. Keim, 83 N. Y. 245; Lindsay V. Mulqueen, 26 Hun, 485; Allen v. Allen, 52 Hun, 398, 5 N. Y: Supp. 518. See, also, note to Sparmann v. Ki.'im, 9 Abb. N. C. ti; Abbott v. Blossom, 66 Barb. 353.] (256) CH. XI. J THE COMPLAINT OR PETITION. § 154 § 154. The Eight to so treat it inferred from an Enlarge- ment of the Remedy. The right, in common-law procedure, to waive the tort and sue as upon contract, simply means that the plaintiff is not obliged to sue in that form of action which can alone be resorted to when the wrong complained of is called a tort; instead of being driven to the action of trespass or case, he is allowed to declare in assumpsit. But in order to do so he must allege a promise, for a promise is of the gist in that form of action; hence the fiction of an implied prom- ise when it is impossible for one to have been understood. The implied promise in torts is wholly unlike that which is as- sumed in contracts, for with the latter there is an actual under- standing. To say that it is implied is no more than to say that it is tacit — as though given by signs and not expressed in words. But in torts there can be no such understanding. The wrong-doer either claims the property concerning which the wrong is done, or designs to appropriate it without such claim; and in either case the facts are inconsistent with, they negative a promise. It is not probable that the fiction of an implied promise on the part of a wrong-doer would have .been invented, had there been no action of assumpsit, had trespass or case been the only remedy, or even had the action of debt been held to lie. But the action of assumpsit is a convenient, and it became a popular, remedy for many classes of grievances; it is in form an action of trespass on the case charging the breach of the promise as though a tort, and came to be allowed, at the option of the plaintiff, in the class of cases of which we are speaking. From the necessity of averring a promise in the plead- ings, it has come to be the received doctrine that there is an implied promise on the part of certain wrong-doers to compensate the suf- ferer for his loss. In the earlier cases the right to sue in assumpsit was placed upon other grounds, and chiefly upon the grounds that a defendant will not be permitted to stultify himself— to defend by showing that he has been guilty of a fraud or other tort," although, where 55 HAMBLT v. TROTT, Cowp. 3T1, was an action of trover against an exec- utor, for a converting by the testator. Tlie objection was that the cause of BLISS CODE PL. — 17 (257) § 154 OF PLEADINGS. [PART II. goods have been fraudulently or otherwise tortiously obtained and sold, the property in the goods is not changed, they still belong to the plaintiff, and, when sold, it may be truthfully said that the action, being for a tort, abated by death. Tlie matter was carefully considered at different sittings, and the court, per Mansfield, J., were clearly of the opin- ion that it ought not to abate, inasmuch as it affected the property of the plaintiff; but still, trover was a form of action for torts, and, as the law then was, actions for a tort by the ancestor could not be prosecuted after his death. But, that justice may be done, the court held that the testator, who had sold the property converted, owed a duty to the plaintiff, and, so far, "upon the principles of civil obligation, another form of action may be brought— as, an action for the money had and received." Nothing is said aboiit an implied promise ai'ising out of the wrongful conversion. LIGHTLT v. CLOUSTON, 1 Taimt. 112, was an action of indebitatus assumpsit by the master against one who had seduced and employed his apprentice. Mansfield, J., says: "He may waive his right to damages for the tort (for the seduction), and may say that he is entitled to the labor of his apprentice; that he is, consequently, entitled to 'an equivalent for the labor which has been bestowed in the serv- ice of defendant. It is not competent for the defendant to answer that he obtained that labor, not by contract with the master, but by wrong, and that therefore he will not pay for it." HILL v. PERKOTT, 3 Taunt. 274, was !\n action of indebitatus assumpsit for goods obtained by fraud, and the court held that "the law would imply a contract to pay for the goods from the cir- cumstances of their having been the plaintiff's property and having come to the defendant's possession, if unaccounted for, and he could not be permitted to account for the possession by setting up the sale which he had himself pro- cured by the most nefarious fraud, because no man must take advantage of his own fraud." In Longchamp v. Kenny, 1 Doug. 137, masquerade tickets had been Intrusted to plaintiff to be sold, and defendant had obtained one of the tickets. The plaintiff being called on to return or pay for the tickets, sent the owner to the defendant for this one, who failed to account for it. The plaintiff, imder threat of arrest, paid five guineas, the price of the ticket, and sued the defendant on the money counts in assumpsit. Mansfield held that the presumption was that defendant had sold the ticket, and, therefore, he should be held for money had and received to plaintiff's use. Some of the other judges held the defendant under the count for money paid on his behalf by the plaintiff— as, where a surety pays for his principal. Foster v. Stewart, 3 Maule & S. 191, was an action of assumpsit for work and labor for the serv- ice of an apprentice seduced by defendant. Bailey, J., does not reason the case, but says that the plaintiff may "waive the tort and bring assumpsit;" citing Lightly v. Clouston, and Hambly v. Trott. Le Blanc, J., says: "I should be inclined to consider that, as there was a contract, the master might avail himself of it, as the apprentice was under the incapacity of making a contract, except for the benefit of his master." Abbotts v. Barry, 5 Moore, (258) CH. XI.] THE COMPLAINT OR PETITION, § 354 money, the proceeds of the sale, was received for his use."* From the permission thus given in certain cases to bring an action of assumpsit, it has come to be asserted as a rule that when there is an obligation to pay money, and, in some cases, when it arises from a tort, the law raises a promise on the part of the debtor or of the wrong-doer to make compensation."' "9S, was assumpsit for money had and received, etc. The evidence showed that defendant had fraudulently procm-ed a sale of goods by the plaintiff to -an insolvent debtor, and out of the proceeds of a resale had received a part of his debt In holding that assumpsit would lie against him, Dallas, C. J., says: ^'The sale in question was effected by fraud, and it is equally clear that a sale of this description works no change of property. The wines must be con- sidered as remaining in the plaintiffs as the original owners, and, therefore, the produce of such wines obtained by the defendant by the sale of them must be considered as money had and received by him to the use of the plain- tiffs, as the original proprietors." In these cases, the judges did not find it necessary to assume, as matter of law, that the defendant had made a promise. 50 In Jones v. Hoar, 5 Pick. 285, to which is a valuable note, it was held that in tortious conversions of personal property the right to waive the tort .and sue in assumpsit was confined to cases where the plaintiff's property had been sold by the defendant. See, also, LAMINE v. DORRELL, 2 Ld. Raynl. 1216, said to be the earliest case, where the plaintiff was allowed to bring assumpsit for the proceeds of the wrongful sale of his property by the defendant. If the right is based, as in these cases, upon the fact that the defendant has received money from the sale of the property — that is, if the pleader is required to tell the truth, and the defendant Is permitted to controvert the facts as pleaded— this view is a sound one; for in case the plaintiff's property has been converted into money, the money, in law, is received for the use of the plaintiff, and the pleading tells the truth. But to say that, when the defendant has wrongfully converted and holds the plaintiff's property, he has purchased it, that the goods were sold and delivered to him at his request, is not true in fact nor in law; and in such case the only groimd upon which the plaintiff can, upon principle, be per- mitted to treat the transaction as a contract is by a soit of estoppel— that is, if the plaintiff chooses to ti-eat it as a sale, the defendant, upon a familiar principle, will not be permitted to avail himself of his own wrong, by show- ing that it wasi not sold, but obtained by theft, fraud or trespass. The doc- trine of Jones V. Hoar, is adopted in Connecticut by Rule 2, § 2, under the practice act of 1879. 57 It is unnecessary to go through the numerous cases where this is stated or assumed. Mr. Pomeroy^ in speaking of the right of election in cases where one may waive the tort, etc., says: "The single principle upon which the en- tire doctrine rests is very simple, and should • ♦ ♦ afford a ready and (259) § 154 OF PLEADINGS. [PART II. Under the Code there is no necessity for spealiing of an implied! promise in such cases. We have no assumpsit, with its fictitious- promise; and, as we have just seen, where a promise is implied as a fact, it is no longer necessary to allege it — only the facts from plain solution of every question, new and old, wliich can be suggested. This single principle may be thus formulated: Fi'om certain acts or omissions of a party creating a liability to make compensation in damages the law implies- a promise to pay such compensation. Wherever this is so, and the acts and omissions are at the same time tortious, the twofold aspect of the single lia- bility at once follows, and the injured party may treat it as arising from the- tort, and enforce it by an action setting forth the tortious acts or defaults, or may treat it as arising from an implied contract, and enforce it by an action, setting forth the facts from which the promise is Inferred by law." Pom. Rem. § 568. The learned author seems fully imbued with the modern idea that the law implies a promise, in certain cases, to compensate the sufferer for the injm-y which one is inflicting upon him. The implied promise is- sometimes traced to the fiction of the social contract Says Blackstone (3. Bl. Comm. 159), speaking of contracts implied by law: "Of this nature are, first, such as are necessarily implied by the fundamental constitution of gov- ernment, to which every man is a contracting party. And thus it is that every person is bound, and hath virtually agreed to pay such particular sums of money as are charged on him by the sentence, or assessed by the interpre- tation of the law. For it is a part of the original conti'act, entered into by all mankind who pai-take of the benefits of society, to submit in all points to the' municipal constitutions and local ordinances of that state of which each in- dividual is a member. Whatever, therefore, the laws order one to pay, that becomes instantly a debt which he hath beforehand contracted to discharge."' The author proceeds to found upon this original conti'act the obligations to- pay judgments, forfeitures, fines, and penalties, and after having spoljen of contracts to pay for services, etc., which are implied in fact, he treats of negli- gence as a violation of the general contract to meet one's obligations in all the relations of life, and especially in the performance of any special duty he may be called on to do. The barrenness of tJiis theory, in its application to- pleadings, appears when we consider that no promise is laid in actions for the wrongs of which he speaks, except where the promise is real, though not in words. He does not seem to have known of the implied promise made at the^ time of the infliction of an injm'y, to compensate for its results. There is no logical consistency, however, in assuming a promise in such cases, except upon the theory that legal obligations and duties are binding only because of one's original contract as a member of society— an idea only found among the ex- ploded fancies of the last century — and the "then and there," etc., of the nar- ratio in assumpsit refers to the time and place of making such contract, which. I believe has never been precisely fixed. (2G0) CH. XI.J THE COMPI.AINT OR PETITION. § 165 which it is understood. The right of election at common law is simply a right to seek redress in a more convenient form of action, and one which sometimes lies when an action of trespass or on the case has abated. Without forms of action, the reason for allow- ing the election has passed away; and, perhaps, had the provisions of the Code in this regard in the beginntag been viewed from a scientific standpoint; had the bench and the bar been able to eman- cipate themselves from old ideas and habits of thought, we should no longer hear of this right of election, or of an implied promise to compensate for an injury. § 155. The Inquiry resumed. In common-law pleading there is no practical difficulty in indi- cating the election, inasmuch as the pleading itself will necessarily show the position in which the plaintiff has chosen to place his an- tagonist But under the new system it is not always easy to know whether a party has determined to waive the tort; it is not easy to 4x upon the signal or notice to be given by the aggrieved party, in order to inform the court of the liability which he charges ; yet there are several ways by which it may be indicated. One is to charge the facts as though a contract had been actually made — as, where the plaintiff's property has been taken, to allege a sale to the defend- ant, the value, and refusal to pay; or, where the plaintiff's property has been sold by the defendant, to charge the sale of the plaintiff's property and the money received for his use with a promise to pay."* The objection to this \dew is that the statement wiQ not be true. The allegation of a promise is a fiction and, though the charge of money had and received to the plaintiff's use may be true as far as it goes, yet it does not tell the whole truth, it does not state the facts which constitute the plaintiff's cause of action, and, if the defendant claims property in the goods sold, the issues upon the trial will not be the same as on paper. On the other hand, there 58 This is the view taken in Booth v. Farmers' & Mechanics' Bank, 65 Barb. 457, although in that case the court, contrary to all the other New York cases, goes so far as to say that the implied promise should also be stated. See § 152, ante. This mode of statement is intimated as proper iu Gordon v. Bruner, 49 Mo. 570. (261) § 155 OF PLEADINGS. [PART II. is great force in the reasorf for allowing the action of assumpsit ■which is gi\-en in Lightley v. Clouston, and in Hill v. Perrott, to wit : that the defendant should not be permitted to set up as a defense^ or take advantage of, his own wrongful act. It is analogous to the doctrine of estoppel in pais. Although the facts which show the plaintiff's right and the wrong may not be true as laid, the defendant will not be permitted to controvert them by showing a more griev- ous wrong, and one involving moral delinquency. "No man can take advantage of his own fraud," or of his unlawful conversion of the property of another. Under this view the plaintiff might count as upon a contract, and he would be entitled to recover — not be- cause the law implied an agreement, but because the defendant i& forbidden to thus shield himself. Another mode would be to state the facts as they will appear,, but to show the election by the connection of the statement, by the prayer, or sometimes, by the writ. As. one may, in the same plead- ing, unite a count for a tort with one founded upon contract, or may seek to set off damages arising from a tort against a demand springing from contract, if this be an injury of such a character that the twofold complexion may be given it, it may perhaps be held that the pleader has indicated his choice by the use he thus makes of his demand. Or he may directly state his choice or indi- cate it by the prayer. In Ohio it is said that, where the facts stated in the petition will entitle the party to elect between two remedies,. "the prayer may determine the character of the action," ^^ and the same view is taken in Wisconsin."" In New York and in some other states the writ differs in actions of tort — arrest and imprisonment being allowed- — from the com- mon summons that is issued in actions founded upon contracts. This writ is sometimes appealed to, not as conclusive, but as indi- cating the character of the action. 59 Corry v. Gaynor, 21 Ohio St. 277. 60 Gillett v. Treganza, 13 AVis. 472; [Lowber t. Connit, 36 Wis. 176; Harral V. Gray, 10 Neb. 186, 4 N. W. 1040.] (202) CH. XI.] THE COMPLAINT OR PETITION. § 156 § 156. 3. The common Counts — When are they permitted? I do not now refer to causes of action that may be correctly de- scribed by one of the common counts, in wkich case the pleading may be subject to the objection only of uncertainty, or that the state- ment of indebtedness is but a conclusion of law, but to cases where an express agreement has been violated, and where the party enti- tled to redress is permitted to sue — as, for work and labor, for goods sold, etc., according to the subject-matter of the contract — as though no such agreement had been made. It is true the allega- tions of indebtedness for work and labor, for goods sold, etc., are not fictitious; but the pleading does not state the true cause of action. The wrong is the breach of contract; the damages are measured by the contract; the evidence must show the contract, its performance on the one side and breach on the other, and upon principle, the pleading should correspond. In some of the states in actions founded upon written agreements, the original agree- ment must be filed with the petition; in others, a copy; and in oth- ers, the original or a copy. In these states the common count would defeat this provision of the statute, because the pleading does not base the action upon the contract, but upon something the plaintiit" has done, not to be alleged as done in pursuance of the agreement, but to be so shovni in evidence. The common-law rule is that, when an agreement has been wholly performed on the part of the plaintiff, or when he has been hindered from performing it by the defendant, he may recover under the common counts if they cover the subject-matter of the agreement on his part. There is reason for holding that if the plaintiff has been hindered from performing the contract, he may, if it was for work and labor, sue for what he has done without naming the con- tract, for the reason that the other party has repudiated it, and he has a right to treat it as rescinded. But when it has been fulfilled, the plaintiff can only recover under and by virtue of the contract. The courts administering the Code do not, however, require the pleader to rely upon the agreement, but hold the common-law rule to be still in force. (203) § 157 OF PLEADINGS. [PATtT 11. § 157. The judicial View. The New York Court of Appeals in an early case °^ held that the Code had not changed the former rule of pleading; that a party who had wholly performed a special contract on his part may still count on the implied assumpsit to pay the stipulated price, and is not bound to declare specially on the agreement. This doctrine has been affirmed in that court, whenever the question has arisen,"^ and the same view is taken in other states. In a case in Wiscon- sin ^' the defendant had made a fraudulent sale to the plaintiff, and the latter was permitted to recover back the purchase-money upon a count for money had and received for his use, the court holding, on objection to the admission of evidence showing the fraud, that the pleading was sufficient under the facts, and intimating that a motion even to make it more specific would not lie. Cole, J., says eiFARRON v. SHERWOOD, 17 N. Y. 227; [Green v. Gilbert, 21 Wis. 395; Stout y. St. Louis Tribune Co., 52 Mo. 342; AsMon v. Shepherd, 120 Ind. 69, 22 N. E. 98.] 62 See Hosley v. Black, 28 N. Y. 438; Hurst v. Litchfield, 39 N. Y. 377; Fells v. Vestvall. *41 N. Y. 152. In Fells v. Vestvali, the following language is used: "The other proposition, to wit, whether there could be a recovery under a complaint on a quantum meruit where the proof tended to show an express contract at a fixed price, was, under the evidence in this case, wholly destitute of merit If the plaintiff was entitled to recover at all, it was on the ground that the services had actually been rendered; and, after complete performance of an express contract, there is no reason why a recovery may not be had under this form of pleading. Tlie only effect in such case of an express contract fixing the price is that the stipulated price becomes the quantum meruit in the case. It is not a question of vari- ance, but only the mode of proof of the allegations of the pleading." The vice in the reasoning, to minds unsaturated with the common-law notions as to implied promises, will appear from the fact that the defendant's liability arose from the actual agreement, and not from an implied one, and also from the fact that the extent of the liability is fixed by the agreement, and not by the value of the labor. The agreement, its performance on the one side and its breach on the other, are the facts that constitute the cause of action. 63 Grannis v. Hooker, 29 Wis. 65. See, also, Green v. Gilbert, 21 Wis. 395. (26i) CH. XI.] THE COMPLAINT OR PETITION. § 157a that "the facts which, in the judgment of the law, create the in- debtedness need not be set forth in the complaint." "* The Supreme Court of Indiana has held that the rule of common- law pleading which enabled the common counts to sustain evidence of special contracts is still in force, and that it applies, first, where the whole of the contract has been performed on the part of the plaintiff; second, where the special contract has been altered or deviated from by common consent; third, where the special con- tract has been performed in part, and its full performance is pre- Tented or dispensed with by the defendant; and, fourth, where the plaintiff has not fulfilled on his part, but has, under it, done or delivered something of value to the defendant.*" The second and third applications of the rule are reasonable, for the contract has been repudiated, and the opposite party may consent to its re- scission and sue for the work done, or he may seek damages for its breach and thus afSrm it; and, in the fourth application, the plain- tiff may be entitled to compensation for what he has done or de- livered of value, if it has been accepted and appropriated. § 157a. Continued. In a case in Ohio,"" the plaintiff below had filed his petition claiming |10,000 for money had and received. The defendant an- •swered that the plaintiff paid the money for stock of the company which had been tendered him and the tender was denied. On ob- «4 The reason, given with some hesitation by the learned judge, is the only •one that can justify the ruling in this and the New York cases; yet it is difficult to see its consistency with the statutory requirement that the com- plaint shall state the facts which constitute the cause of action. 85 KERSTETTER v. RAYMOND. 10 Ind. 199. The court met the diffi- culty in the statutory requirement that "where any pleading is founded on a written instrument or an account, the original, or a copy thereof, must be :flled with the pleadings," by holding that, in the cases where these common- law rules apply, the suit is not founded on the special contract, but "the plaintifC proceeds exclusively upon the implied legal engagement or obli- gation of the defendant to pay the value of the services or thing ordered or received by him.'' ee WOOLEN MILLS CO. v. TITUS. 35 Ohio St. 253. (265) § 157a OF PLEADINGS. [PAET II.- jection to the petition tlie Supreme Court on error held that "if the- contract between Titus and the company is subsisting, it is quite- clear there can be no recovery upon this petition, for it cannot be regarded as founded on the written contract. * * * But if the contract has been terminated, and the only thing that remains to be done, is for the company to pay, and Titus to receive |10,000' with interest, there can be no objection to a recovery under this petition." In North Carolina," the plaintiff had made a contract with defendant to publish an agricultural journal, and the defend- ant had agreed to furnish one thousand subscribers. The plain- tiff proceeded with the publication, but the subscribers were not furnished and he was obliged thereby to suspend. He sues upon- the contract, but inasmuch as he had not been able to perform it on his part, it was held that he could not recover upon it, yet it was also held, that the failure of defendant entitled him to rescind the contract, and recover for services and expenses — as in assump- sit for work and labor, money expended, etc. A question of plead- ing had arisen, and the trial court held, that before he could thus recover, he must amend his complaint, but the Supreme Court held that the complaint, setting up the special contract, and defendant's refusal to comply with it, stated the facts that constituted the cause of action and that the relief, that is, compensation for his work and expenses, was consistent with the case made, and was embra- ced within the issue. It was after-wards held by the same court,"* that a party to a contract for working land, which had been so vio- lated by defendant, that he could not profitably proceed with its cultivation under the agreement, was entitled, under a complaint which set out the agreement and its breach, to recover the -value of the work performed, as well as for his disappointment in not be- ing able to make a crop. In California,"" a plaintiff had been al- lowed below, under a quantum meruit count to prove a special con- tract as a measure of what the services were worth. The judg- ment was affirmed, but it does not definitely appear upon what grounds. «7 Jones V. Mial, 82 N. C. 252. 68 McMahan v. Miller. 82 N. 0. 317. 69 In Friermuth v. Frlenuutli, 46 Cal. 42. (2GG) en. Xr.] THE COMPLAINT OR PETITION. § 158 § 158. 4. As to pleading Matters according to their legal EflPect — Contracts may be set out in haec Verba or according to their legal EflPect. The common-law rule of statement is that "a contract or legal instrument should be stated according to its legal effect," '° and in such case there is no variance if the phraseology of the instrument is not the same as that stated in the pleading. And, says Chitty,. "this rule is of very extensive operation, and ai)plies, not only to tlie statement of contracts in the action of assumpsit, but also to the statement by either party of contracts and obligations of every description, whether verbal, written, or specialty, in any form of action." '^ The pleader is not under imperative obligation thus to plead, for it is sufficient to set forth the very words of an instru- ment; and if it be so pleaded, the court will judge of their legal effect. ■'^ As limited to the description of a written instrument, the pleader will be allowed to give it in haec verba, for that is a state- ment of the facts, and the whole matter will be before the court; but if, instead of doing that, he undertakes to describe its character or operation, he must describe it truly — that is, he must give the contract according to its legal effect. Thus, in one of the instances given by Stephen,'^' "if a tenant for life grant his estate to him in reversion, this is in effect a surrender, and must be pleaded as such, and not as a grant." And suppose a bungling conveyancer, intend- ing to draw a lease for years, the term to be indicated in the haben- dum clause, should use the words in the granting part, "give and grant," or "bargain and sell," the instrument should be described in a pleading as a demise, or lease, and the pleader will say that he demised or leased the premises for the term, etc., and not that he granted, or bargained and sold, etc.; for the former words wiU' state the fact — that is, will give the legal effect of the instrument. This is not an artificial or technical rule, nor does it involve a fiction; 70 1 Chit. PI. (Ed. 1876) 312. 71 Id. 72 Id. 78 Steph. PL *390; citing Bai'ker t. Lade, 4 Mod. 149. (267) I 158 OF PLEADINGS. [PAET H. for in no other way can an act or paper be described truly when it is not set out in words. Thus, it is in harmony with the require- ment of the Code that the pleading shall state the facts, etc., and the permission to set out a contract in words, or describe it ac- cording to its legal effect, is stiU recognized.''* This permission is not confined to contracts; in an action against a principal for a fraud committed by his agent, it is proper to say that the frauds were committed by the principal.'" '* A contract may be set out as written, or according to its legal effect Stoddard v. Tread well, 26 Cal. 294; Bateson v. Clark, 37 Mo. 31; Jones V. Louderman, 39 Mo. 28 T. 75 Bennett v. Judson, 21 N. Y. 238. (268) CH. XII.J OF THE COMPLAINT. § 159' CHAPTER XII. OP THE COMPLAINT, CONTINUED— THE RELIEF— THE OATH. The Belief. Section 159. The Relief must follow the Statement 160. When PlaintlfE is confined to the Relief prayed for— When no Answer is made. 161. The Relief granted upon Answer, etc., will be consistent with. the Issue— The equity Rule— The general Prayer. 162. When the Plaintiff mistakes the natm-e of his Relief. 163. Each Forum confined to its own Relief. 164. Inconsistent Relief. 165. The full Demand to be stated. 166. Full Relief in so-called equitable Causes— The equity Rule. 167. The Rule under the Code. 168. Continued— The Ruling in New York. 169. Continued— The Ruling in other States. 170. Continued— The Doctrine in Missouri. 171. The Objections to this View are twofold. The Oath. 172. Its Object 173. The Oath as required in certain States— By whom made. The Belief. § 159. The Relief must foUoTV the Statement. The seTeral codes substantially agree in regard to the demand for relief, that of New York requiting the complaint to contain: "3. A demand of the relief to which the plaintiff supposes himself enti- tled. If the recovery of money be demanded, the amount thereof shall be stated." ^ To this the Missouri statute adds, "or such facts 1 Wait's Code, § 142. Phraseology slightly changed In Code Ciy. Proc. 1876, § 481. [The following is a general form of ■prayer: ["Wherefore, the plaintiff prays judgment against the defendant for the said sum of dollars, with interest from the day of , and his costs of suit" [With the prayer for relief, the petition or complaint Is complete, unless a. verification is required> and should be signed by the attorney, thus: ["E. F., ["Attorney for Plaintiff."]. (269) § 160 OF PLEADINGS. [PAET 11. as will enable the court to ascertain the amount demanded," " The Ohio Code adds to the original New York provision, "and if interest thereon be claimed, the time from which interest is to be computed shall also be stated." » All the Codes require that the plaintiff shall distinctly state the relief which he seeks, and the importance of so doing wiU appear in the next section. « ^ 160. "When Plaintiff is confined to the Relief prayed for — When no Answer is made. The following was section 275 of the New York Code of Proce- dure, though somewhat changed in section 1207 of the present Code: "The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other case the court may grant him any relief consistent with the case made by the complaint and embraced within the issue." This section has been copied literally in California,* in lowa,^ in Indiana,® in South Carolina,'' in Colorado,^ and substantially in Kentucky,' in Missouri," and in Nevada." The New York Court of Appeals ^^ holds that an appearance by demurrer will not author- ize greater relief than that demanded, and because the right to such relief is predicated upon an answer.^* 2 Wag. St. 1013, § 3 (Kev. St. 1879, § 3511). s Code, § 85 (2 Rev. St. 1880, § 5060). i Code Civ. Proc. 187G, § 580. 6 Code 1873, § 2855. 6 Code Civ. Proc. § 380 (Rev. St 1881,. § 385). 7 Code Civ. Proc. § 299. 8 Code Oiv. Proc. § 147. 9 Bullitt's Code, § 90. 10 Wag. St. 1054, § 12 (Rev. St. 1879, § 3GS3). 11 Comp. Laws 1873, § 1213. 12 Kelly V. Downing, 42 N. Y. 71. 13 In Missouri the limitation of the relief to that demanded is predicated upon an interlocutory judgment, and that judgment is provided for upon fail- ure to file "an answer or other pleading within the time prescribed by law or the rules of practice of the court." Wag. St. 1052, § 4. It is usual to allow an answer after demurrer overruled; otherwise, judgment will be en- tered against the demurrant upon issue of law, and such judgment is also called an interlocutory judgment. Wag. St. 1053, § 9. In default, then, of such answer, either in the first instance or after demurrer, the damages (270) •CH. XII.] OF THE COMPLAINT. § 161 § 161. The Relief granted upon Ansvrer, etc., "wrill be conr sistent ^xrith. the Issue— The equity Rule — The general Prayer. When the defendant has made his answer, or in Missouri, his answer or other pleading, the court may grant "any relief consist- ent with the case made by the plaintiff and embraced within the issue." It is a rule in equity that the petitioner, in order to be entitled to any other relief than that prayed for, must have made the gen- eral prayer. Without such prayer the relief is confined to what he has sought in his bill.^* Is this prayer necessary under the Code? Upon principle, it would seem to be uncalled for. The statute says that the complaint or petition shall contain "a demand of the relief to which the party supposes himself entitled;" a general prayer is not such a demand. Further, the court may grant him any relief consistent with the case made and embraced within the issue. The issue has nothing to do with the prayer for relief; it is made by the affirmance and denial of some fact or facts, or by the denial of some legal proposition which is implied in the statement of facts.^° If the facts put in issue and established by evidence entitle the party to any relief in the power of the court to give, -although not that demanded, it is the duty of the court to give it, and its power to do so is not conditioned upon the form of the prayer. It has, however, been common among pleaders, following the equity -practice, to close with the general prayer, and not unfrequently have courts, in varying the relief from that specifically asked for, based their authority upon such prayer; ^^ while in other cases the power is assumed without any reference to a general prayer.^^ In the cases referred to in the next section, where one who applies for relief of an equitable nature is denied such relief, but obtains ■ or otlier relief are limited to that which the plaintiff shall have demanded .in his petition. 14 Story, Eq. PI § 40. 13 Ante, §§ 136, 137. 10 As in Hemsou v. Decker, 29 How. Pr. 385; Wood v. Brown, 34 N. Y. 337. 17 As in Emery v. Pease, 20 N. Y. G2; Henderson v. Dickey, 50 ilo. 161. (271) § 162 OF PLEADINGS. [PAKT U. that of a legal nature, or vice versa, the authority is not based upon a general prayer. The pleader should bear m mind the language of the rule, and that he will not be entitled to any relief that the evidence alone shows him entitled to. "It is a rule in chancery, not affected by the Code, that a party must recover according to the case made by the complaint or not at all, secundum allegata as well as pro- bata." " § 162. When the Plaintiff mistakes the nature of his Belief. As we have seen, the plaintiff may unite in one pleading a cause of action calling for a judgment for money only, with another cause of action in which he seeks relief commonly called equitable. Dif- ferent modes of trial are provided — in the one case by jury, and in the other by the court; ^' and the judgments or relief would be separately, but contiguously, entered upon the record. Instead of thus uniting two causes of action, the plaintiff may have but one — may have suffered but one wrong — but supposes it to be nec- essary, before he can enforce his demand to obtain relief of an equitable nature. He frames his complaint accordingly, not by uniting two causes, but by stating his demand, and the facts that, in his view, render it necessary to seek for equitable aid, asking for such aid as well as for the other relief; and the court is of opin- ion that he has stated facts sufficient to entitle him to a money judgment without such aid. Will the court, in such case, dismiss the complaint, or, disregarding or striking out the equitable matter, direct the case to be tried as in an action for money only, or for specific property? Or, one may seek the specific performance of a contract which he cannot thus enforce, but shows facts that enti- tle him to damages for its non-performance. Will the court in such case, as under the equity practice, dismiss his petition,^" or will a jury trial be awarded, as though damages alone were sought? These questions have been considered in the courts of New York, 18 Kome Exch. Bank v. Eames, *40 N. Y. 588. 19 Stemberger v. McGoTem, .5G N. Y. 12. 20 Morss V. Elmendorf, 11 Paige,. 277. (272) CH. XII.J OF THE COMPLAINT. § 162 and in the Supreme Court, at general term, it has been said "that the rule is now well settled that in actions brought for (Miuitable relief, and tried before a judge, if there appears to be no ground for granting such relief, the court should, retain the cause and grant such legal relief as may be just."^^ The Court of Appeals takes the same view."- In the same spirit the Supreme Court of Indiana affirmed a money judgment for the amount due upon a mortgage while refusing the equitable relief which was sought.^' The Cali- fornia Supreme Court also holds, that if a complaint purporting to be a bill in equity is insufficient as such, j-et if the facts are cognizable in a court of law, the proper relief will be given.^* In Wisconsin, on the other hand, in an action for the specific perform- 21 CUFF V. DORLAND, 55 Burb. 482. Ingraham, J., further says that the trial judge, "while he refused a decree for specific performance, should have retained the case for the purpose of awarding to the plaintiff the damages he was entitled to for the non-performance." [LEONARD v. ROGAN, 20 Wis. 540, where Dixon, C. J., said: "If the plain tifC demands re- lief in equity when, upon the facts stated, he is only entitled to a judg- ment at law, or vice versa, his action does not, as formerly, fail because of the mistake. He may still have the judgment appropriate to the case made by the complaint." Hamill v. Thompson, 3 Colo. 518; Wliiting v. Root, 52 Iowa, 292, 3 N. W. 134. Contra, HORN v. LUDINGTON, 32 Wis. 73; Lawe V. Hyde, 39 Wis. 345.] 22 In STERNBERGER v. McGOVERN, 56 N. Y. 12, which was a com- plaint seeking specilic performance of a real contract, and it appeared thnt it could not be performed, even in part, it was held to be error to dismiss the action, but it should have been retained for a trial of the plaintiff's claim for damages. Grover, J., says: "He demands equitable relief, based upon the ground that he was entitled to specific performance of that part of the contract relating to the Thompson Street property. He failed in showing a right to this. He then had a right to a ti-ial of his claim for damages sustained by the breach. True, the mode of trial may be different. The former must be tried by the court, or a referee, unless, etc. Either party has a right to a jury trial of the latter." To the same effect are New York Ice Co. v. Northwestern Ins. Co., 23 N. Y. 357; Davis v. Morris, 36 N. Y. 569; Armitage v. Pulver, 37 N. Y. 494. In Davis v. Morris, Grover, J., seems to think tliat if either of several causes of action united in one complaint are triable by jm-y, "the entire cause must be so ti-ied, as no provision is made for two trials of the issues joined in the same action." [Duvall V. Tinsley, 54 Mo. 93.] 23 Eichbredt v. Angerman, 80 Ind. 208, 24 White V. Lyons, 42 Cal. 279. BLISS CODE PI.. — 18 (273) § 163 OF PLEADINGS. [PART U- ance of a parol agreement to sell land, it is held that the plaintiff, failing to establish his equitable right, will not be permitted to recover back the money he has paid upon the contract.^^ § 163. Each Forum confined to its o-wn Relief. Where each party insists upon his rights in regard to the mode of trial, the court, upon inspection of the complaint, or one of its statements, must decide, in the first instance, whether a case is made for the court or the jury, and, upon submission of the evi- dence, whether to the court or the jury, it would seem that no other relief could be given than that properly sought from the given forum. Thus, if there should be, in one statement, an improper intermingling of facts that would constitute two causes of action, one for legal and one for equitable relief, and the parties should go to trial upon such pleading unreformed, a jury could only give a verdict for money, or for specific property, as the case may be; and if the cause were submitted to the court against the will of the losing party, the court could only pass upon the equitable issues.^" If this view be correct, in either mode of trial the court should treat as surplusage the issues upon the facts constituting the cause of action not so triable; for, except by consent, issues triable 25 Horn V. Ludington, 32 Wis. 73. Cole, J., says: "It will not do to say tliat if tlie facts fail to sliow that the plaintiff is entitled to the equitable relief he seeks, that the action must be sustained as one at law." But why not? This is hardly consistent with Leonard v. Rogan, 20 Wis. 540, although in the latter case the plaintiff merely mistook his relief. [General Rule under Code as to What Relief the Party is Entitled to. [A party cannot be sent out of court merely because his facts do not entitle him to relief at law, or merely because he is not entitled to relief in equity, as the case may be. He can only be sent out of court when, upon hia facts, he is entitled to no relief, either at law or in equity. Grain v. AI- drich, 38 Cal. 514; Barlow v. Scott, 24 N. Y. 40; Troost v. Davis, 31 Ind. 34; Hamill v. Thompson, 3 Ck>lo. 518; HeiTing v. Neely, 43 Iowa, 157; Carpentier V. Brenham, 50 Cal. 551; Murtha v. Curley, 90 N. Y. 372; Hiles v. Johnson, 67 Wis. 517, 30 N. W. 721; Davis v. Davis, 9 Mont. 267, 23 Pac. 715.] 26 But see DAVIS v. MORRIS, 36 N. Y. 569. This was an action to re- cover rents and for equitable relief, and the defendant demanded a jury trial, which was refused. In commenting upon the frame of the com- (274) CH. XII.] OP THE COMPLAINT. § 164 by jury can not be tried by the court, nor vice versa, except upon special issues. I do not find this view authoritatively taken by the courts, nor its opposite, but I can conceive of no other con- sistent with the statutory rights of the parties in regard to the mode of trial. The doctrine of this section is not to be confounded with the obligation of the court in equity cases to give full relief without a jury. Other questions as to the mode of trial naturally arise in this connection, but the matter of this and the preceding section con- cerns rather practice than pleading, and I wUl not fui'ther pursue the subject. § 164. Inconsistent Relief. Though the plaintiff is not confined to one kind of relief, yet each kind prayed for, though differing in character, should be consist- ent. The principle that forbids the union of inconsistent causes of action should prevent a demand for inconsistent relief in any one cause. In an early case ^' the plaintiff asked for a forfeiture of a lease because of non-performance of its conditions, and also for an injunction against the lessee, to restrain him from making altera- tions, etc. An injunction had been allowed; but the court, at gen- eral term, held that the plaintiff had no right to it so long as he sought a forfeiture.^' In many cases different kinds of relief are impossible; one would destroy the other. Thus, in an action for plaint, Green, J., says: "The right founded on the common law must be tried by jury, and it would seem to follow necessarily that the entire cause must be so tried, as no provision is made for two trials of the issue joined in the same action." This does not contradict the text, as in this case there was no improper joinder. 27 LINDEN V. HEPBURN, 5 How. Pr. 188; Id., 3 Sandf. 668; [New York Ice (Do. V. Northwestern Ins. Co., 21 How. Pr. 29G.] 28 "The forfeiture of the term," says Sandford, J., "is a relief totally incon- sistent with any equitable remedy. The lessor may pursue his remedy for a re-entry and possession, or he may proceed for an injunction and damages, leaving the tenant in possession. He has an undoubted op)i»,ted,Oi£ither. He cannot do both at once." The inconsistency in this case w*^ "^k because the two kinds of relief necessarily interfered with each otliqr, but because in equity, forfeitures were odious, and equity would not help one who is seeking to enforce them. (275) § 164 OF PLEADINGS. [PAET 11. the breach of a contract, the plaintiff may state facts that would entitle him to a judgment enforcing it, or to one for its rescission; but he should not seek both at the same time. He should elect whether he will enforce or rescind, whether he will affirm or disaf- firm; ^^ the prayer in such case shows his election.'" But if he seek thus to enforce and rescind, he comes into court without hav- ing made his election, the opposite party is not advised of the na- ture of the proceeding, and he should be required to decide what he wants before proceeding further. While, in a proper case, one may seek alternative relief," yet a property-holder cannot, in the same action, sue for an injury to his individual property and ask that if relief cannot be given to him personally, it may be given him as tax-payer for himself, and as representing other tax-payers similarly affected; ^^ nor should alternative relief be sought, "found- ed on the assumption that the cause of action is wholly miscon- ceived, and is entirely inconsistent with, and foreign to, the case as stated in the petition." ^^ It is held not to be incongruous for a plaintiff to ask that a claim for dower be adjudged extinguished, or, if the evidence should not warrant that measure of relief, that the dowress be adjudged to contribute to the payment of a certain mortgage.^* 29 Bowen v. MandevUle, 95 N. Y. 237. 30 "Where the facts stated entitle the plaintiff to elect between two remedies, to either of which the facts sliow him entitled, the prayer may determine the character of the action, because it is, in itself an election." Welch, J., in Corry v. Gaynor, 21 Ohio St. 277. 31 [Riddle v. Boll, 24 Ohio St. 572; Hiatt v. Parker, 29 Kan. 765; Lyke v. Post, 63 How. Pr. 298.] 32 Warwicli v. Mayor, 28 Barb. 210. 33 Pensenneau v. Ponsenneau, 22 Mo. 27. Scott, J., says: "The difficulty iu this case grows out of the omission or unwillingness of the plaintiff to determine on what gi-ound she will stand. She must either abide by the partition or disclaim it. If she insists that there was a binding partition, let her malse a deed confirming it. * * * ' Then she will be in a position to claim an enforcement of the trust, if there is any. If she is unwilling to do this, then let her declare the nullity of the deed of partition growing out of the imperfect mode of executing it. Failing to do one or the other of these things, she will not be permitted to litigate her rights without determining what they are before she institutes her suit" 84 Wood v. Seely, 32 N. Y. 105. (276) CH. XII. J OK THE COMPLAINT. § 166 § 165. The full Demand to be stated. In a money demand, the pleader should state the full amount de- manded, or the facts from which it caij be computed. In an early case in Kew York,^^ the verdict was for a larger sum than the one claimed, and it was held that the Code had not, in this regard, changed the former rule, and the plaintiff was allowed to remit the excess and take judgment for the amount claimed. This was an action of tort, and the damages claimed were a part, as it were, of the facts, and the demand stated nothing from which a greater sum appeared to be due. In actions upon contract, when the state- ment shows a larger amount due than the sum named in the prayer, the authority of the court in such case is thus stated by the Su- preme Court of California: "Where judgment is by default, the court cannot grant greater relief than is demanded in the complaint ; but where there is a trial, the court may grant any relief consistent with the case made in the complaint and embraced within the is- sue. The contract is set out in the complaint, and accruing interest, and interest on the judgment, are embraced within the issue, notwithstanding they are not included in the prayer." ^^ In Missouri it is held that it is error to render judgment upon a ver- dict for a greater sum than that which is demanded, unless the pe- tition has been amended before verdict so as to cover the amount.^^ § 166. Full Relief in so-called equitable Causes — The Rule in Equity. In an action other than for money or specific property, if the de- mand be sustained, and one for money or specific property is con- nected with, or grows out of, the equity, the court will retain and try the whole cause, and, without the intervention of a jury, will 35 Corning V. Corning, 6 N. Y. 97. 38 Lane v. Gluckauf, 28 Oal. 288. The same view is talien in Cassacia v. Phoenix Ins. Co., 28 Gal. 628, and the case is distingiiishecl from causes of actions sounding In tort. 37 Wright V. Jacobs, 61 Mo. 19; Armstrong v. City of St. Lotus, 3 Mo. App. 100. In neither of these cases was there anything In the petition from which the amount found to be due could be computed. (277) § 16(5 OF PLEADINGS. [PAET II. give the money or other judgment, to which the party shows him- self entitled. This is the recognized rule under the Code, and it conforms to the spirit of the equity system. Under that system it has sometimes been held that, in bills for discovery, the chancellor should retain the cause and give full relief, although that is not the usual rule unless equitable relief is also sought. Mr. Story says that, "in bills of discovery seeking relief, if any part of the relief sought be of an equitable nature, the court will retain the bill for complete relief;" and that, "in matters of account, fraud, accident, and mistake, the jurisdiction for relief will generally, but not universally be retained."^* The approved rule seems to be that if the jurisdiction is but ancillary to a legal action, is for dis- covery merely, the party is remanded to the court of law for relief; but when the court has jurisdiction for relief as well, the chancel- lor will try the whole cause and give the party any relief whether legal or equitable; the court will not drive the plaintiff to an ac- tion in the law courts after the determination of his suit in equity.*' The limit of the chancellor's power as to legal relief has never been clearly established. The general doctrine is correctly stated above, but in the jealousy once existing in the common-law courts, the chancellor was cautious in assuming the power to render a money judgment, when it could have been obtained without an appeal to him. Thus, in a bill to foreclose an equity of redemption by sale, when the mortgage was given to secure an independent obligation, the chancellor would not ordinarily give a decree for the debt, the bal- ance, after sale, to be recovered by general execution, for a judg- ment at law might have been obtained without the bill. But, in most cases, the party is unable to sue at law until some obstacle has been removed — as, in such a mistake in a contract as would pre- clude a suit for damages, the mistake must first be corrected. In such case when the chancellor obtains jurisdiction to correct the mistake, the party is not compelled to bring a new suit to enforce the contract as corrected. 88 story, Eq. Jm-. § T3. 39 1 Daniell, Ch. Pr. (5th Am. Ed.) 548, note 1; Fonbl. Eq (4tli Am. Ed.) 26, note; Bisp. Eq. § 56S. (278) CH. XII. J OF THE COMPLAINT. § 168 § 167. The Rule under the Code. The obligation under the Code to give full relief is greater than in the courts of equity. We have no longer suits in equity and actions at law — all are civil actions. The application for redress is not to a court of law or equity, but to the one court, which is re- quired "to deteiinine the ultimate rights of the parties upon each side;" and in any action will give him the relief to which he, by his pleadings and evidence, shows himself entitled, without regard to any former designation of its character. If the equity court refuses to do justice by halves — if, in favor of complete justice, it goes beyond its ordinary jurisdiction — ^how much more will a court having complete jurisdiction give a suitor full and complete relief? Disastrous consequences might follow the opposite view. Oni' is entitled to damages for breach of a contract; but, by mistake of the scrivener, he cannot enforce it until reformed. If he must seek to reform the instrument, and wait until that relief is obtained before suing for damages, he may never recover them, for the rea- son, perhaps, that the statute of limitations may in the meantime have run, or the defendant may have become bankrupt So, it may be necessary to reform a lease, or a deed of conveyance, or set aside a conveyance for fraud, before ejectment will lie; and when the party shall have obtained his so-called equitable relief, the term will, perhaps, have expired, or the statute of limitations will have barred his action. This result, it is said, may be avoided by unit- ing in the same petition, by different statements or counts, the so- called legal and equitable causes of action. But this cannot be done in the case supposed, for the reason that each statement must embody a separate and independent cause of action — one that could be prosecuted alone — and there is no legal cause of action until the court has given the equitable relief. It follows, then, that there is but one cause of action, and, the issues being triable by the court, the action is still called one for equitable relief. § 168. Continued — The Ruling in New York. In an early case in the Supreme Court of New York, the plaintiff sought to reform a written agreement, and damages for its breach (279) § 168 OF PLEADINGS. [PART II. as reformed. In deciding that he was entitled to the latter relief, as well as the former, the judge presiding (Welles), remarked: •'Having presented a case of equity jurisdiction exclusively, with a view to the reformation of the written instrument, it is no objection to the practical relief which he seeks that it could be given in a court of law upon the contract after it shall be reformed. It would be a reproach to the administration of justice to turn the party over to another tribunal, or to another form of action in the same tribunal, to obtain the relief which he was obliged to appeal to its equitable jurisdiction in order to be put in a condition to ask for. The rule in respect to a court of equity is that, the jurisdiction having once attached, it shall be made effectual for the purposes of complete relief."*" This ^dew has been uniformly taken in the Court of .Appeals. An action had been brought to reform a contract of in- surance, and for the amount covered by the policy. In reviewing the action below, the opinion disposed summarily of the objection to the double relief by saying : "There was nothing in the objection that the court should have stopped with reforming the policy, and turned the plaintiffs over to a new action to recover their damages. The rule of the courts of equity was, when they had acquired juris- diction, and had the whole merits before them, to proceed and to do complete justice between the parties." *^ In another case the plain- tiff had purchased land belonging to defendant at execution sale, but it appeared that the defendant had held it under a misdescription, and it was so sold. He brought suit to correct the description, and for possession; and the Court of Appeals held that "the plaintiff, claiming under a defective deed, and showing sufficient ground for its reform, may have the same remedy as if he had brought two actions — one to reform the instrument, and one to enforce it as reformed." *^ In another case,^^ the court goes further, and assumes ■to GOODING V. McALISTER, 9 How. Pr. 123; [Rigsbee v. Trees, 21 Ind. 227; Tjeedy v. Nasli, 67 Ind. 311; McClui'g v. Phillips, 49 Mo. 315;. Walkup v. Zehring, 13' Iowa, 306. Contra, Harrison v. Juneau Bank, 17 Wis. 340.] " Bidwell V. Astor Mut. Ins. Co., 16 N. Y. 263. 42 LAITB V. BUCKMILLER, 17 N. Y. 620. See, also, New York Ice Co. v. Northwestern Ins. Co., 23 N. Y. 3.j7, reforming an insurance policy, and giving judgment as reformed. Also, Lattln v. BIcCai-ty, 41 N. Y. 107, holding that in an 43 Worrall v. Munn, 38 N. Y. 137. (280) CH. Xir.J OF THE COMPLAINT. § 169 as undisputed the authority as stated in the following syllabus of the case: "When a court of equity sustains a bill filed to compel the specific performance of a contract for the conveyance of lands, and decrees such conveyance, it is within the proper exercise of its jurisdiction, and according to its modern practice, to give full and complete relief, by awarding to the plaintiff, not only the conveyance to which he is entitled, but also the damages which the defendant has caused by his refusal and delay in the performance of his con- tract; and these may be ascertained by the court in any mode which its discretion approves." § 169. Continued — The Ruling in other States. In Wisconsin, mth no statute to authorize it, a mortgagee, in an action for foreclosure by sale, may take a personal judgment against the mortgager for any balance that remains un atisfled ate • the sale of the mortgaged premises;** and in an action to enforce a vendor's lien, the plaintiff is allowed to take a personal judgment.*'^ In most of these cases the double relief is improperly spoken of as a union of two causes of action,"" although it does not appear that they were separately stated as is required in case of such union. In Minnesota, in an action to reform an insurance policy, the plaintiff also sought to obtain judgment for the amount due upon it as reformed. It was called by the court a union of two causes of action, although there could have been no action for the money untU the policy had been reformed.*'' So, in Nebraska, a plaintiff sought to reform an official bond, and damages for its breach; it was also treated as a proper union of tAvo causes of action.*^ In Indiana, the jiction to set aside a fraudulent deed, and far possession of tlie premises cov- ered by the deed, there was but one cause of action. And Getty v. Hudson River K. Co., 6 How. Pr. 2G9, giving damages for obstructing a private water- way, and enjoining its continued obstmction; [Johnson v. Golder, 132 N. Y. 116, 50 N. E. 37a; Louvall v. Gridley, 70 Cal. 507, 11 Pac. 777.] *i Sauer v. Steinbauer, 14 Wis. 70; Gary v. Wheeler, Id. 281; Jesup v. City Bank, Id. 331; Stillwell v. Kellogg, Id. 461; Faesi v. Goetz, 15 Wis. 231. 45 Stephens v. Magor, 25 Wis. 533. 46 Ante, §§ 114-116. 47 Guernsey v. American Ins. Co., 17 Minn. 104 (Gil. 83). 48 stewai-t V. Garter, 4 Neb. 50-1. In aeitlior of these cases was the eqxiitable (281) § 170 or PLEADINGS. [PAET II. seventy-first section of its Code authorizes the correction of mis- takes in title papers, or other instruments of writing, in any action when the correction is essential to a complete remedy. In apply- ing this statute to a promissoiy note, the following language is used in regard to the judgment: "It is insisted that the court should first have entered up a judgment refonuing the note, and then have allowed it, as reformed, to be given in evidence at the trial. We perceive no valid reason for that precise mode of practice. Neither the letter nor the spirit of the statute requires it. It is enough if the court, as in this instance, find the mistake and correct it, and then render a final judgment in the case in accordance with such finding." *" In North Carolina, the right to pass upon a mis- take in a note, and, at the same time, fin(J the amount due upon it, seems to have been conceded.^" This right to complete relief in one action may be said to be now universally acknowledged, and the right is generally treated as springing from a single cause of action. § 170. Continued — The Doctrine in Missouri. The Supreme Court of Missouri at one time seemed to have adopted the view, although not stated in these terms, that the Code had changed the equity rule; that, inasmuch as a plaintiff could unite in one petition, by separate statements, causes of action of a legal and equitable nature, he should not, if he has faUed to do so, be granted legal relief in an equitable action; that the reason for- merly given for giving such relief, to wit, that a multiplicity of suits is thereby avoided, cannot exist when the plaintiff is allowed, by a separate statement, to attach the legal to the equitable action; and the objection to so doing is that, in a money demand, or in a demand for the restoration of specific property, the defendant has a right to a trial by jury, which would be denied him if the court should take the whole matter into its own hands and give a money judgment in an action whose issues are triable by the court.^^ cause of action sustained, but they show the difficulty of distinguishing be- tween two causes of action and a single cause wiUi two kinds of relief. Abb. Pr. 384. so Morehouse v. Crilley, S How. Pr. 431. (296) CH. XII[.] WHAT SHOULD NOT BE STATED. § 182 the statute of limitations, by stating generally that the cause of action is barred by section — of the code, etc.*" The rulings thou in New York and California, in respect to what is thus covered by statute, cannot be appealed to elsewhere. In noticing a public statute, the court will take the best mode of advising itself, and usually the published volumes of acts of the legislature suffice; but the original act in the office of the Secre- tary of State is the ultimate resort, and the court will look to it for the purpose of correcting an error in the publication.^^ In New York certain acts of incorporation require a two-thirds vote of the legislature, and a certificate to the enrolled copy stating whether the act was passed by a majority, or by a two-thirds vote. This certificate was not attached to certain laws as published, and it was held that the courts would take notice whether a statute pub- lished as having passed contained the proper certificate.*^ § 182. When are Statutes public? Inasmuch as at common law, private statutes must be pleaded and proved, it becomes important to determine what acts are pub- lic and what private. A private statute is such as concerns a par- ticular species or person.*'* Statutes are not private because they are local, and one in its nature private will be deemed public if so declared by the legislature.** A public act has been defined by the i^upreme Courts of Indiana and Maine to be one which extends equally to all persons within the territory covered by its provi- so Code Civ. Proc. CiU. 1876, § 458. •11 Clare v. State, 5 Iowa, 509. *2 De Bow v. People, 1 Denio, 9; Commercial Bant v. Sparrow, 2 Denio, 97; also People v. Commissioners of Highways, 54 N. Y. 276. In this case the existence of the statute was admitted by the defendant, but the court held that the parties had no right to make law, and that the alleged statute was defective. As to the right of a court to looli behind a statute and behind the official certificate of the proper ottict is to see whether it properly passed, see Legg v. Mayor, etc., of Annapolis, 16 Am. Law Reg. 33-37, note 1, 42 Md. 203; and Supervisors of Kendall Co. v. Post, 4 Cent. Law J. 137-139, 04 U. S. 260. 4 a Bouv. Law Diet. 44 Id. (207) § 182 OF PLEADINL.S. [PART II. sions, and that it need not be general." Thus, an act giving the au- thorities of a town power to stop the sale of ardent spirits is a public one;" and one conferring certain jurisdiction upon a par- ticular County Court;" and in relation to the survey of timber in a county;^' or for the preservation of certain fish in a river.** A city charter would seem to be within this definition ; =" also, the incorporation of a school district covering a specific area of terri- tory. But a special act directing the survey of a particular tract of land is not a public one.'^^ In addition to those that come within the above definition of a public act, there are many statutes that primarily concern particu- lar persons, but as affecting the public, are treated as public. Among these are acts relating to banks,'^ and acts creating cor- porations, whether sole or aggregate; '*'' also a joint resolution imposing a particular duty upon a public ofiicer; ^* and a legisla- tive grant to individuals, of part of a public domain in Maryland, affecting rights of fishery and navigation.^^' In Kentucky, an act incorporating an educational society,^" and an act establishing a town,'' were called private acts; but as, in that State, it is not re- 45 Levy V. State, 6 Ind. 281; Pierce v. Kimball, 9 Me. 54. See, also, Bretz V. New York, 6 Rob. (N. Y.) 325. 46 Levy V. State, supra. *7 Meshke v. Van Doren, 16 Wis. 310. 48 Pierce v. Kimball, 9 Me. 54. 49 Bnrnliam v. Webster, 5 Mass. 266. 60 State V. City of Murfreesboro, 11 Humph. 217. [For a rule as to city ordinances, see Maxw. Code PI. p. 89. A city ordinance is in the natui'e O'f a special local law, and it should be pleaded. Pomeroy v. Lappeus, 9 Or. 363; State V. Soragan, 40 Yt. 450; Whitson v. Franklin, 34 Ind. 392; Fink v. Milwaukee, 17 Wis. 26; Porter v. Waring, 69 N. Y. 250; Lucker v. Com., 4 Bush, 440; People v. Mayor, etc., 7 How. Pr. 81; Lenahan v. People, 3 Hun, 164.] 51 City of Alleghany v. Nelson, 25 Pa. St. 332. 52 Douglass V. Bank of Missouri, 1 Mo. 24; Bank of Utica v. Smedes, 3 Cow. 002; Young v. Banli of Alexandria, 4 Cranch, 384; Owen v. State, 5 Sneed, 493. 68 Portsmouth Livery Co. v. Watson, 10 Mass. 91. 64 State V. Delesdenier, 7 Tex. 76. 66 Hammond v. Inloes, 4 Md. 172. 56 Collier v. Baptist Education Soc, 8 B. Mon. 68. 67 Halhert v. Skyles, 1 A. K. Marsh. 368. (2:)S) t'H. XIII.J WHAT SHOULD NOT BE STATED. § 183 quired to plead private acts, it was held that the court took judicial notice of them. The more recent constitutions of many of the states prohibit local and private legislation in certain enumerated cases, and require it to be public and general ; and in Ohio all stat- utes printed by authority, though local or special, are declared to be public, of which the courts will take notice. In England, charters are not statutes, and both as to them and other facts, the scope of judicial recognizance, seems to be more restricted than with us.°' § 183. As to private and foreign Statutes. But courts will not take judicial cognizance of the existence or provisions of private legislative acts, or of foreign laws or stat- utes; °® hence they are facts to be pleaded and proved. Under the present practice of publishing, officially, private as well as public legislative acts, the same reason for distinguishing between them does not exist as when the latter alone were so published; and it is for that reason, doubtless, that courts, as seen in the last section, are inclined to classify all enactments not strictly personal among those that are public, and for that reason also, the Code, as will be seen in the next section, has practically bridged over the old time chasm between them. There is little danger of mistake as to foreign statutes — that is, those of other states and territories, and of foreign countries. They, or such parts of them as are necessary to be understood, must be set out in the pleadings, and proved like other facts. There is, however, an apparent exception, in the fact that courts will take judicial notice of such laws and statutes of other states and coun- tries as are operative within their jurisdiction. Thus, the courts of Kentucky take judicial notice of the laws of Virginia common to the two states before their separation;*" and the courts of Indiana 68 Phil. Bv. c. 10, § 1. =9 Cow. & H. note 413 to 2 Phil. Ev. (6th Am. Ed.) 428, and cases cited; [Sammis v. Wightman (Fla.) 12 South. 526. If the contracts were made under foreign statutes, the statutes must be pleaded. Riendeau v. Vieu, 66 Hun, 633, 21 N. Y. Supp. 501.] «o Delano v. Jopling, 1 Litt. (Ky.) 117, 417. (299) § 183 OF PLEADINGS. [PART II. will notice certain statutes of Virginia in regard to a tract of land in the state called the "Illinois grant," concerning which the right to legislate was reserved by Virginia in its release to the United States."' The courts of CalLfornia, also judicially know that San Francisco, under its fonner gOTernment, was a pueblo ^^ — its pow- ers, rights, general boundary, and jurisdiction;"^ and those of Mis- souri will take notice of the laws of France and Spain while under their dominion ; "* and so will the Federal courts."^ Upon the same principle, Tennessee courts will take notice of North Carolina grants. "^ But while the several states are so far foreign to each other that the statutes of one state can only be brought to the knowledge of the courts of the other states as facts, yet their relation to the Unit- ed States is such that the state courts will take judicial notice of the public Acts of the United States,"^ and the courts of the United States, on the other hand, of the laws and jurisprudence of all the States and territories."' The rule is that every United States Circuit Court will not only take judicial notice of laws and public statutes in force within its territorial jurisdiction, but also of the laws of all the states of the Union, in cases to which they respectively apply; «i Henthom v. Doe, 1 Blackf. 157. 62 [See explanation, Grisar v. McDowell, 6 Wall. 3G3; Trenouth v. San lYau- cisco, 100 U. S. 251.] 03 Payne v. Treadwell, IC Gal. 220. 64 Gbouteau y. PleiTe, 9 Mo. 3; Anderson v. Biddle, Id. 580. 65 U. S. V. Turner, 11 How. 663. 66 Richards v. Hicks, 1 Overt. 207. It seems not to be necessary in Vir- ginia to plead a private statute, althougli the court will not take judicial no- tice of it as of public acts. Legi-and v. Hampden Sidney College, 5 Munf. 324. Nor is it in Kentucky. Collier v. Baptist Ed. Soc, 8 B. Mon. 68; Hal- bert V. Skyles, 1 A. K. Marsh. 368. And in Georgia (Herschfeld v. Dexel, 12 Ga. 582) and Vermont (Middlebury College v. Cheney, 1 Vt 336) the courts have taken judicial notice of the statutes of other states. 6" Cow. & H. note 413 to 2 Phil. Ev. (4th Am. Ed.) 429, and cases cited; Semple v. Hagar, 27 Cal. 1G3; Dickenson v. Breeden, 30 111. 279; Wright v. Hawkins, 28 Tex. 452; Papin v. Ryan, 32 Mo. 21. 68 Cow. & H. notes to 2 Phil. Ev. 429; .Jasper v. Porter, 2 McLean, 579 (Fed. Cas. No. 7,229]; Jones v. Hays, 4 McLean, 521 [Fed. Cas. No. 7,467]; Smith V. Tallapoosa Co., 2 Woods, 574 [Fed. Cas. No. 13,113]. (300) CH. XIII.] WHAT SHOULD NOT BE STATED. § 185 hence the Circuit Court of Maryland should take notice of the laws of Louisiana affecting the validity of a paper offered in evidence."* § 184. Private Statutes and the Code — Ho-wr pleaded. The theoretical distinction between public and private acts was far from being a formal one. The difference in the rule as to plead- ing and proving them has been noted. Private acts of legislation were placed upon a level with contracts; issues in regard to them, as in regard to contracts, were submitted to the jury; they took not the dignity of laws, but were, so far, treated like other matters pertaining to our private relations. The following section of the Code does much more than simplify the pleadings in actions founded upon such statutes. It takes from the jury the issues pertaining to them; or, rather, it destroys the issues of fact in regard to them as known to the common law: "In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such stat- ute by its title and the day of its passage, and the court shall there upon take judicial notice thereof." ^'' Therefore, when thus referred to by the pleader, they take the rank of public acts, and no issue to the country can be made in regard to them. The clause, how- ever, refers only to domestic private statutes; foreign enactments must stiU be pleaded.'^ § 185. (c) Treaties — Proclamations. Treaties of the United States, as well as its laws, are declared to be the supreme law of the land, by which the judges of every state M Owings V. Hull, 9 Pet. 007. 70 Rev. St. Ohio, § 5092; Rev. St. Ind. § S51; Rev. St. Wis. § 2G7G; Gen. St Minn. c. 66, § 110; Rev. St. Mo. § 2077; Gen. St. Kan. par. 4207; Consol. St. Neb. •§ 4667; Code Civ. Proc. Cal. § 459; Gen. St. Nev. § 3083; Code N. 0. § 2VA\ Code Civ. Proc. S. O. § 184; Comp. Laws N. D. § 4928; Comp. Laws S. D. § 4928; Code Civ. Proc. N. Y. § 530; Code Civ. Proc. Colo. § 68; Civ. Code Ky. § 119; Code Iowa, § 3914; Rev. St. Idaho, § 4214; Rev. St. Wyo. § 2479; Comp. Laws Utah, § 3245; Gump. St. Mont. § 106; Code Civ. Proc. Wash. J 98; Gould, PI. 46. 71 Post, § 304. (301) § 186 OF PLEADINGS. [PART II: are bound; ''^ and they will take judicial notice of their existence and proTisions." The Fed?ral courts will not only notice the treaties themselves, but also the public acts and proclamations of the governments with whom they are made, in carrying them into effect.'* Proclamations '^ of the highest executive authority are, within their proper scope, clothed with the authority, and often have the force, of law; and they will be the subject of judicial cog- nizance in all courts within the political jurisdiction of such ex- ecutive.'^" § 186. (d) Civil Divisions -within the State. The civil divisions within a state that are created by law will be judicially noticed; '^ and the courts will take cognizance of the existence and boundaries of counties, townships, and towns, so far as created and pointed out by statute; '^ the rule being, when a city or town has been incorporated by a special act, that the courts will take judicial notice of its incorporation, but when organized under a general act, the facts showing the organization must be pleaded and proved.'' The existence of a town or county may be so notorious as to be judicially noticed; but when the time of their organization becomes material to be known, and they are created, not by a public act, but by local authorities acting under a general law, the court cannot know such time ^° — it must be stated and proved. Neither will courts take notice of city ordinances; they must be pleaded and proved as facts.*^ Nor when there has been a 72 Const U. S. art. G. '3 Baby v. Dubois, 1 Blackf. 25.j. '4 U. S. V. Reyues, 9 How. 127. 73 [Dowdell v. State, 58 Ind. 155.] 70 Dunning v. New Albany & S. R. Co., 2 Ind. 437; 1 Starlde, Bv. (8th Am. Kd.) 735, note q. 77 Starkie, Ev. (8th Am. Ed.) 738, note t. 78 State V. Jacl5;son, 39 Me. 291; Stephenson v. Doe, 8 Blackf. 508; Buck- inghouse v. Gregg, 19 Ind. 401. 79 Ingle V. Jones, 43 Iowa, 286; Hard v. City of Decorah, Id. 313. so Buckinghouse v. Gregg, supra. SI Goodrich v. Brown, 30 Iowa, 2iil; [Potter v. Waring, GO N. Y. 2.50; Peo- ple V. Mayor, etc., 7 How. Pr. 81. See ante, § 182, note; City of McPherson V. Nichols, 48 Kan. 430, 29 Pac. 679; Central Sav. Bank v. Mayor, etc. (302j CH. XIII. J WHAT SHOULD NOT BE STATED. § 187 dmsion of a county by an act which does not show to which divi- sion a particular town is attached, can the court know to whicli it belongs.'^ The courts will notice the existence and boundaries of judicial districts and the counties of which they are composed,'' and that a judii-ial district is within a county, although composing a part of it only.'* There is a difference in principle between the area and boundaries of civil divisions within the state and the ex- istence of places as geographical facts. The former are known so far only as evidenced by public statutes; and the names of places adopting a general act concerning incorporations,'^ and the time of dividing and erecting counties under a general law,'° cannot be judicially known. 5 187. 2. Matters of general Notoriety, including the rec- ognized Facts of Science. In the next four sections will be given many of the facts judi- cially noticed by the court which are embraced in this division of the subject. It would be a mere trifling to require a party to plead and prove, or permit a jury to pass upon, facts so notorious as to be known to all intelligent persons; they are, therefore, assum- d by the court, and no issue will be permitted in regard to them. Like the law, which is supposed to be known even to the ignorant, they may not ah\ays be present to the memory or apprehension of judges; in which case resort may be had to any available source of information. There are many facts of a scientific nature deemed so recondite as to require the testimony of experts, but these will necessarily, with the progress of knowledge, come more and more within the category of tliose of whicli the court will take notice; Did.) 20 Atl. 2S;?; City of (iretlo.v v. Hamman, 12 Colo. 94 20 Pac. 1; Cooper V. People, 41 .Mich. 403, 2 N. W. 51; Fink v. Milwaukee, 17 Wis. 2G; Goodwin v. Wells, 8 Iowa, 2S6; City of Huntington v. Pease, 56 Ind. 305; Sevens v. Chicago, 48 111. 49S;J CITY OF WINONA v. BURKE, 23 Minn. 254; Pomeroy v. I^appeus, 9 Or. ;'. Mo. 78). aoiLewin v. Stewart, 10 How. Pr. 513; [Robbins v. Deverill, 20 Wis. 142; Howard v. Brewer, 37 Otiio St. 402.] 202 Post, §§ 353, 354. 203 [See Code Civ. Proc. Iowa, § 3854; Smitli v. Fab, 13 B. Mon. 443.] J204 In Smitb v. Richmond, 19 Oal. 481. BLISS CODE PL. 2 1 (321) § 205 OF PLEADINGS. [PAUT II. required to plead the same. He could not demur to tlie declaration, even when it appeared upon its face that the limitation prescribed by the statute had expired. If he did not plead the statute, he was considered as having waived its protection. In equitable suits the rule was different. In suits of this character the defendant could make the objection, by demurrer, that the relief was barred by the statute, when it appeared upon the face of the bill that the pre- scribed limitation had expired.^"" If the case came within any of the exceptions of the statute, it was necessary to aver the fact.^"" Under our system there is no difference in the rule, whether the action be one strictly at law or one in which equitable relief is sought. In both cases the complaint must disclose a subsisting cause of action. 'Civil actions' — and these terms embrace both legal and equitable actions — says the statute, 'can only be com- menced within certain prescribed periods after the cause of action shall have accrued.' If it appear, therefore, upon the face of the complaint that the prescribed time has elapsed since the plaintiff possessed the right of action, and no facts are alleged taking the particular demand from the operation of the statute, the complaint wiU be considered defective, and subject to demurrer." ^°' 205 [Chemung Canal Bank v. Lowery, 93 U. S. 72. This is made the rule now in some of the states by statute.] 206 Humbert v. Rector, etc., of Trinity Church, 7 Paige, 195; Sublette v. Tinney, 9 Cal. 423. 207 In an action to recover a debt taken out of the statute of limitations by a new promise, the cause of action is based on the original debt. Boyd V. Hurlbut, 41 Mo. 268; Sands v. St. John, 36 Barb. 628. In Boyd v. Hurlbut no question of pleading Is raised. In Sands v. St. John the opin- ion of the court is directly contrary to that given in the text from Smith v. Richmond, and holds that the rule of common-law pleadings prevails, and not that of the equity courts. In Minnesota the rule In Smith v. Richmond is adopted. Kennedy v. Williams, 11 Minn. 314 (Gil. 219). See Bloodgood v. Bruen, 8 N. Y. 362. See post §§ 355, 356, as to whether the defense of ths statute of limitations is available on demurrer. (322) CH. XIU.J \\H.\T SHOULD NOT BE STATED. § 20G RULE V. Evidence ahould not be pleaded. § 206. The Rule reasonable — Facts distinguished. This is a rule of common-law pleadiny,-"^ but it is necessarily disregarded in equity, inasmuch as one object of a bill — and some- times the only object — is discovery, to obtain evidence from the de- fendant,^"" and this evidence cannot be elicited unless the facts are stated somewhat in detail, or are indicated in the interrogatories. Under the reformed system, and with our new rules in respect to the competency of witnesses, we have no bills of discovery and only the issuable facts should be averred. The issuable facts are those upon which a material issue may be taken ; they are facta probanda, and, therefore, facta allegata; they are called in the Missouri Code substantive facts, and the facts which prove them may be called probative or evidential facts. It would be folly to take issue upon the latter, they are relevant but not issuable facts,^^" for the fact in issue may be stated truly, though sustained by other evidence than that anticipated by the pleader. In a sense, the issuable fact may be a conclusion of law from the evidential facts, that is, it is a logical and, therefore, legal inference from the facts found.^" 208 1 Chit. PI. (Ed. 1867) 22.!i; [Dowman's Case, 9 Coke, 9b.] 209 As an example of the practice sometimes enforced, of pleading evidence, see Story, Eq. Pi. (9th Ed.) § 265a, and note 1, where a discussion is had lu regard to the necessity of setting out in the bill any alleged confession or admission of respondent which the plaintiff intends to prove. 210 See Best, Ev. (Chamberlayne, Am. Ed.) p. 257, note 1. "Facts in issue are those facts upon the existence of which the right or liability to be ascertained in the proceeding depends. Facts relevant to the Issue (but not in issue) are facts from the existence of which inferences as to the existence of the facts in issue may be drawn." Steph. Dig. Ev. Introduction. 211 For the benefit or amusement of any young readers unaccustomed to logical formulas I will illustrate, and suppose it to be necessary to allege and prove title in a horse. The plaintiff's ownership is the fact to be estab- lished. First, or the legal, proposition: "If A. agrees to sell his horse to B., delivers possession, and accepts the agreed price, the horse becomes the property of B. Second, or probative, facts: The plaintiff was the owner of a carriage, and one William Jones was the owner of the horse in controversy. One day they met upon the highway, and .Jones bantered the plaintiflC to trade (.323) § 206 OF PLEADINGS. [PAET U. The rule under consideration is not given in the Code, but is im- plied by the requirement that the complaint or petition shall contain a statement of the facts which constitute the cause of action. The e^idence does not constitute the cause of action — only the facts which are made to appear by the evidence, and these facts may be shown by one class of evidential facts or by another. The pleader may sometimes be enabled to decide whether a fact is evidential merely, or an issuable fact to be pleaded, by inquiring whether a denial of such fact would make a material issue — whether, if the denial be sustained, the defendant may not still be liable. In common-law actions a sensible pleader will seldom have diffi- culty, but, in the pursuit of equitable remedies, the plaintiff's right may depend upon such a number and complication of facts as some- times to make it difficult to distinguish between those that are evi- dential and those that constitute the cause of action; still, in both cases, the rule is the same.^^- the carriage for the horse, and offered to exchange even; but the plaintiff refused, aslving $10 boot. The next day, however, he sent his carriage to Jones by his son, sending word that he would exchange according to the offer. Jones kept the carriage and sent the horse to the plaintiff, who kept !liim until taken from his possession by defendant. Third, or ultimate, fact: The horse is the property of the plaintiff. This is none the less a fact because it is a conclusion from the other facts and from the proposition of law. 212 It is because of this difficulty that Selden, J., in AA'ooden v. Waffle, C How. Pr. 145, and Rochester City Bank v. Suydam, 5 How. Pr. 218, seems to suppose that a different rule still prevails in legal and in equitable actions. To warrant this conclusion, he assumes that the code system is not complete in itself, but the old rules not inconsistent with it are still in force. The true view is that many of the old rules are necessarily implied from the very comprehensive ones laid down in the Code, as is the one given in the text. The statute is express in abolishing the distinction between actions at law and suits in equity, and, when not express, the abolition is clearly implied from the provision that there shall be but one form of action. Because, in some equitable actions, in order to show a liability, it becomes necessary' to state a greater number of facts than in a money demand, it does not follow that they are mere evidential facts, as we use the term. There is, sometimes, a difficulty in distinguishing between the ultimate fact to be pleaded and a conclusion of law, and they are liable to be confounded; but there is a differ- ence. As to the statement in ordinary actions, JIarvin, J., in People v. Kyder, 12 N. Y, 433, after quoting Chitty and other authorities in regard to (324) ClI. XIII. J WHAT HIIUULD NOT BE STATED. § 201 § 207. Illustrations. Thus, a controversy arises in regard to the delivery of a deed of conveyance, the instrument not having passed directly fronn the hand of the grantor to that of the grantee; the fact of delivery may be a conclusion from other facts bearing upon it, and the de- livery itself may be but a probative fact, going to the fact of con- veyance, or to the existence of the deed, which is nothing without delivery. The allegation may be that on, etc., by a certain in- denture, or a certain deed poll, etc., he conveyed, etc. Or, by a cer- tain indenture, etc., he covenanted, etc. The defendant may deny the deed — not intending to deny the signing and sealing of the pa- per, only its delivery. The facts tending to establish the delivery and the delivery itself, are but probative facts, going to the legal existence of the instrument.^^^ Or, one sues for the conversion of a horse; the facts to be established are title, conversion, and value; each of these facts may be a conclusion from many others, yet they alone are to be pleaded, the latter being but evidence- So, in trespass de bonis, the facts are the plaintiflE's title (either pos- sessory or as owner), the dispossession, conversion, and damage. Statements pertaining to the manner of the seizure and the cir- cumstances attending it, or as to what was done with the property,, would be pleading evidence, and they will be stricken out "as irrele- vant and redundant;" ^^^ or, if not stricken out, the defendant is not bound to answer them.^^^ In suing upon a promissory note executed by an agent or partner, the pleading should charge that pleading evidence, says: "I have supposed it safe, and a compliance witli the Code, to state the facts constituting the cause of action substantially im the same manner as they were stated in the old system— in a special count. By that system the legal issuable facts wore to be stated, and the evidence by which those facts were to be established was to be brought forward oa the trial. This position will not embrace what was known as the common, counts." 213 See Sawyer v. Warner, 15 Barb. 282. 21* Green v. Palmer, 15 Cal. 411. They are rather redundant than irrele- vant As to striking out, see Buzzard v. ICnapp, 12 How. Pr. 504; Eddy v- Beach, 7 Abb. Pr. 17; Radde v. Ruckgaber, 3 Duer, 684. 215 Racouillat v. Rene, 32 Cal. 450. (325)' § 207 OF PI.EADINGS. [PAET II. it was executed by defendant,"" for such is the legal effect of the act — the manner of the execution is evidence; and so, in a sale and delivery to the defendants, where they purchased by an agent.-" Also, in an action for enticing a wife, the plaintiff alleges that the defendant procured, persuaded and enticed, without stating what he said to that end;"^* and in an action by a railroad passenger, in pleading the contract to carry, etc., he should state, in general terms, that the defendant contracted, etc., and the consideration, and not that the company or its agent sold the plaintiff a passenger ticket, etc. — for that is but evidence of the contract. In relying upon irregularities in a tax sale, the pleader should not say that he has searched the records in the proper oflQces, and can find no evi- dence of proper proceedings required, but that such proceedings were not had.^^" In most of the states, and in all that have adopted the new pro- cedure, the fictitious action of ejectment has been abolished, al- though the statutory action is sometimes as loose as the old. When not colored by the fictitious action, the plaintiff must show his title — that is, he must state the facts upon which he bases his right to possession. In such case (and this statement is required in some of the states) "" he should state, generally, the nature of his title — as, that he is the owner in fee simple, of a term, so stating it as to show that it has not expired, or that he has an estate for life, as the case may be. It may be that he claims by conveyance from one who took by inheritance, whose ancestor purchased at a sale, upon execution, against one who might have been a remote grantee from the common source of title. Each link in the chain may be very important as evidence, but its statement would be out of place in a pleading.^^^ 216 See V. Cox, 16 Mo. 166; Weide v. Porter, 22 Minn. 429; Sander v. An- derson, 21 Mo. 402. Contea, St. Jolin v. Griffith, 1 Abb. Pr. 39. 217 Slierman v. New Yorli Cent. R. Co., 22 Barb. 239. 218 1 Cliit. PI. (Ed. 1SG7) 391. 219 Rogers v. City of Milwaukee, 13 Wis. CIO. 220 See post, as to pleading title, §§ 222-226. 221 For instances where the pleading of evidence is condemned, see Page V. Boyd, 11 How. Pr. 415; Allen v. Patterson, 7 N, Y. 476. (32C) CH. XIII.] WHAT SHOULD NOT BE STATED. § 209 § 208. Difficulties in applying the Rule. Tlie rule now under consideration, especially in connection with, the one against pleading legal conclusions, will sometimes embar- rass the pleader. It is not always easy to distinguish the issu- able fact to be pleaded. In the cases which have been supposed, the fact alleged is, in a sense, a conclusion of law from the evidence; the legal effect of that evidence is matter of law. Mr. Van Sant- voord, in his work upon the New York Code (pages 244, 245) thus quotes Mr. Selden, of that state: "^ "Facts are to be stated; but what are facts? Are they pure matter of fact unmixed with any element of law? No declaration or complaint was ever so drawn. If a plaintiff states his title to, or ownership of, property in the usual form, is this the statement of pure facts? Clearly, not. It comes much nearer being a statement of a mere matter of law — that is of a legal right depending upon facts not stated. Again: the common averment that the defendant executed, or entered into, a contract is liable to the same criticism; or even that he signed, sealed, and delivered it. The delivery may have been actual, or it may have been constructive merely. What amounts to a deliv- ery is a question of law. It is obvious, therefore, that some lati- tude of interpretation is to be given to the term 'facts,' when used in a rule of pleading. It must of necessity embrace a class of mixed facts, in which more or less of legal inference is admitted. A contrary construction would tend to intolerable prolixity. To determine precisely how great an infusion of law will be allowed to enter into the composition of a pleadable fact, precedent and analogy are our only guides." § 209. Continued. The foregoing statement is substantially correct, and to say that the ultimate, the issuable fact to be stated, is a conclusion of fact and not of law, does not fully distinguish it from legal con- clusions. Many mere inferences condemned as conclusions of law, are inferences of fact. One sues as the assignee of a chose in ac- 222 In Dows V. Hotclikiss, 10 N. Y. Leg. Obs. 281. (327) § 210 OF PLEADINGS. [PAET II, tion; it is not good pleading to say that it is, or has become the property of the plaintiff; the fact that makes it his property should be stated. Still the plaintiff's property in the thing is as much a fact as though it were an ordinary chattel. But because both are conclusions, whether we call them logical or legal, it does not follow that they are the same. If the inference is matter of law, it cannot be stated for the reason that law is never pleaded; but if it be an inference of fact there is more room for doubt. There is, however, a difference between the issuable, the ultimate, fact to be pleaded, which difference may not be shown by definitionSf but will be seen in examining cases. We may not be able to so describe the resembling features of two persons, that a stranger wiU distinguish them, yet they may be easily seen not to be the same. RULE VI. Conclusions of Lav) should not be jikaded.^^ § 210. To be distinguished from issuable Facts. The rule is gi\en in this connection, to show as far as we can, the difference between an admissible conclusion of fact and a con- clusion of law. The facts which are but the logical conclusion from other facts must, as we have seen, be stated; the facts from which they are inferred are but evidence; but a conclusion of law, although of a fact, is not allowed. We may not be able to so formu- late a definition or statement that shall describe what is meant by such a conclusion as to distinguish it from an issuable fact; yet, in inspecting a pleading, it is seldom difficult to make the dis- tinction. 223 [GeiTity v. Brady, 44 HI. App. 203; Maness v. Henry (Ala.) 11 South. 410. A statement that the plaintifC was in the act of getting on the car "as a passenger, as he had a right to do," is a conclusion of law. North Birmingham St. Ky. Co. V. Liddicoat (Ala.) 13 South. 18; Swanholm v. Eeeser, 31 Pac. 804, 2 Idaho, 1167; Baker-Boyer Nat. Bank v. Hughson, 5 Wash. 100, 31 Pac. 423. Where, in an action to recoyer the purchase money of goods sold and delivered, the answer denies tliat defendants are indebted on the alleged cause of action set forth in the complaint, but does not otherwise deny the com- plaint, the answer is but a conclusion of law, and the defendants' promise- to pay is admitted. Lamb v. Hirschberg (Com. PI. N. Y.) 20 N. Y. Supp. 678.. Sec, further, Dixon Co. v. Field, 111 U. S. 83, 4 Sup. Ct. 315.] (328) CH. XIII.] WHAT SHOULD NOT BE STATED. § 210' Thus, in an action for breach of contract, the title and the right to redress, as between the parties to it, sufficiently appear from its description, but, if the action be by an assignee or indorsee, the agreement shows the right to be in another, and the court should be advised in respect to that of the plaintiff; that is, the plaintiff should state the facts that give him title, as the assignment, the indorsement, etc. To say that a right, a chose in action, once belonging to A., is now the property of the plaintiff, is a conclu- sion of law.^^* In suing for the conversion of a chattel proper, its description shows no right in another, ownership is all that can be averred, to require the plaintiff to explain on paper how he came to be the owner, would be ridiculous unless he sues in a rejjre- sentative capacity, in which case the facts must be stated which show his right.^^' In an action in respect to land, when the right depends upon title, more particularity is required. As to chattels, ownership' is absolute, but no one has an absolute title to land, only an estate or interest in it; ^^^ hence the plaintiff in stating his title should show what that interest is, as, that he is the owner in fee simple, or has a fee simple estate in it, or has a life estate, or is the owner of a term, so describing it as to show Ms title. A fee simple be- ing the highest interest one can have in land, for the claimant to state it, sufSces without giving probative facts going to establish it. But any less estate is founded on the fee simple; to state the less estate, admits a higher one in some other person, and the plain- tiff should so set out his title as to show a right consistent with such higher estate.^^^ When a plaintiff bases his demand upon the acts of defendant he must state the general fact, and the rule as to particularity will depend upon the character of the act. If founded upon a writ- ing, the pleading should show that the defendant executed it; fur- ther particulars in respect to its execution, merely probative, need not be stated. If he would recover for a fraud, the deceit and false representations should be stated, not the details which show 224 Adams v. Holley, 12 How. Pr. 326. 225 See post, §§ 261, 267. 220 Tied. Real Prop. § 19; Williams, Real Prop. p. 17. 227 Post, § 222, etc. (329) §211 OF PLEADINGS. [PAKT II. the deceit; the latter are but probative facts, while a general al- legation of fraud is a conclusion of law."* So of duress; to say that the plaintiff was compelled to pay a sum of money is a con- clusion of law,"" while to say that he was threatened by the de- fendant with death or great bodily injury and in fear of same, paid, etc., or that he was illegally imprisoned by him and to procure a release, paid, etc., would doubtless be held to be a statement of the issuable fact without giving the particulars. § 211. Fraud a conclusion of Law. In alleging fraud, it will not suffice to say that the party fraud- ulently procured, or fraudulently induced, or fraudulently did this or that, or that he committed or was guilty of fraud; the facts which constitute the fraud must be stated. Fraud is a conclusion of law.^^" A statement that defendants in "concert, did by con- nivance, conspiracy and combination, beat and defraud the plain- tiff out of," etc., does not state the facts that constituted the cause of action.^" It does not appear what they did; the legal conclu- sion — an epithet only — is applied to their acts without knowing what they were. Fraud is not a fact; it is a name given by law to certain facts, to certain conduct of the accused party. The fact may be mis- representation, deceit, specificially stated, and the term fraud is the legal epithet applied to such facts; it is not the fact, not the thing done, but only a conclusion from the thing done. The term fraud or misrepresentation, may not be used at all, if the facts appear.^^^ We say one is guilty of fraud because he has done so and so, as we say one is guilty of larceny or of murder because he 228 See next section. 229 Commercial Banli v. City of Rocliester, 41 Barb. 341, afllrmed 41 N. y. 619. 23oKeiT, Fraud & M. (Bump, Am. Ed.) 365, 360. Tills Las never been doubted as to the declaration or petition, althougli it has been incorrectly said, that, in the answer or reply the legal conclusion will be permitted. In Edgell V. Sigerson, 20 Mo. 494, an answer alleging fraud generally was sus- tained; so in Evans v. Stone, 80 Ky. 78. See note 1, § 339. 231 Cohn V. Goldman, 76 N. Y. 284. 2S2 Hess V. Young, 59 Ind. 379. (330) CH. XIII.] WHAT CHOULD NOT BE STATED. § 211a has done this or that thing. The fraud, or the larceny, or the mur- der, is the term which the law applies to certain acts — to certain facts; it is the legal conclusion from these facts — neither of them is a fact in itself. To show one's guilt, we say, in one case, that he falsely represented a certain horse to be sound, that he was unsound at the time, was affected with the glanders, which the defendant well knew; or, that he falsely represented him to be not over five years old, but he was over ten years of age, which fact the defendant knew at the time, etc.; and in the other, that he did feloniously, etc., steal, take, and carry away; or, feloniously, willfully, and of malice aforethought, with a certain knife, did make an assault, etc. The law makes the former, and many other similar acts, fraud — as it makes the latter larceny and mur- der. An additional though not controlling consideration is the fact that fraud is quasi-criminal and will not be presumed.^^^ This, however, is true only as between strangers; as to their deal- ings, the facts, as to deception, etc., must be set out, otherwise the.A- will be assumed to be honest. But there are confidential relations from which undue influence is presumed and those holding them, and those having recently held them are in a sense, incapable of contracting with each other; that is, the relation presumes undue influence, the exercise of which is fraudulent and the contract will be set aside without actual fraud. But as to the pleadings the same rule holds as in other cases. It will not do to say that B. exercised an undue influence over C. and induced him to make the contract, but the confidential relation must be described that the court may see whether it be one from which such influence will be presumed. § 211a. Negligence not a conclusion of Law. The general allegation of negligence is allowed as qualifying an act otherwise not wrongful. It is not the principal act charged as having caused the injury, but it gives color to the act, malies it a legal wrong; it is the absence of care in doing the act. The injury may be the result of accident, of intent, or of negligence. 233 Orisp V. Pratt, Oro. Car. 549. 'Traus est odiosa et non praesumenda." (331) § 211a OF PI.EADINGS. [PART 11. As, one's carriage strikes that of his neighbor; if the collision^ is unavoidable there is no liability, if intentional it is a trespass, if the result of careless driving or other neglect of duty, the lia- bility is for the collision as caused by negligence. Negligence is one of the facts to be pleaded, it is not a conclusion of law but a conclusion of fact, an issuable, a substantive fact, to be inferred from evidential facts.^^* The pleader may not say that he was injured, as, that his arm was broken by the negligence of defendant, but he must state specifically what acts caused the injury, adding the negligence as creating the liability, the latter to be stated in a general way, as that "the defendant by," etc., "did run and manage one of their cars in such a grossly careless and negligent manner that," etc.,^^^ or the defendants "whilst running their locomotive with," etc., "negligently struck," etc.,^'" or that "the car was driven over the child carelessly and negligently by defendant's servant," that the death was caused "by the negligence and default of the defendants and their agents," etc.^" 234 "Negligence is the ultimate fact to be pleaded and it forms part of the act from which an injury arises or by which contributory negligence Is made out. It is the absence of care in the performance of an act and Is not usually the result of such absence, but the absence itself, and is not therefore a mere conclusion of law and may be pleaded generally." HargisJ .T., in Louisville & N. R. Co. v. Wolfe, 80 Ky., on page 84. 235 Grinde v. Milwaukee & St. Paul K. Co., 42 Iowa, 376. In this case Rothrock, J., says: "It does not follow, because negligence is a mixed ques- tion of law and fact, that the general allegation is pleading a legal conclusion only. The facts necessary to be pleaded are not merely physical facts. It is not allowable to plead mere abstract conclusions of law, having no ele- ment of fact, they form no part of the allegations constituting a cause of action; but if they contain the elements also of a fact, consti'uing the lan- guage in its ordinary meaning, then force and effect must be given to them. as allegations of fact— as, where necessaries ar-e furnished to an infant, or where a deed or mortgage is alleged as having been made, or the ownership of property is asserted; the general allegation is sufhcient, being the ultimate fact, to be established by evidence. To allege more would be to plead the evidence, which is not allowable." 233 Garner v. Hannibal & St. J. R. Co., 34 Mo. 235. 237 oidfield V. New York C. & H. R. Co., 14 N. Y. 310. Certain decisions in Missouri seemed to require the pleader to state the facts vchich constitute- negligence, while they only required him to state them ti'uly and held that evidence should not be admitted of negligence other than that stated. Buf- (332) ■CH. XIII. J WHAT SHOUI.D KOT BE STATKD. § 212 § 212. Instances of legal Conclusions.^ The city of Buffalo had been coiiipclled to pay damages to a third person, arising from his falHng into a sewer excavation — the approaches to w'hich had not been secured — and sued the sewer contractor to recover back the money. The plaintiff stated the contract, alleged that the defendant made the excavation in a certain street, and that it became his duty while the pit or hole should remain open, to use care, and to erect, maintain, and keep lights, guards and barriers, etc., to prevent and protect person.s lawfully passing, etc., from falling into said pit; but that he neglected his duty, whereby, etc. If this duty on the part of the defendant arose from the terms of the contract — that is, if he had agreed to thus guard the approaches to the sewer — while such agreement should have been set out, the contract, the excavation, the neglect, and the injury would have been the facts, and the legal conclusion would have been unnecessary and redundant. It there was no such contract, the obligation was assumed to have been created by law out of the agreement to build the sewer, and