Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIR8T DEAN OF THE SCHOOL By his Wife and Daug^liter , A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KF8870.P781883 Remedies and remedial rights :by the civ 3 1924 020 166 009 Cornell University Library The original of this bool< is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020166009 REMEDIES AND REMEDIAL RIGHTS THE CIVIL ACTION, ACCOBDIHG TO THE REFORMED AMERICAN PROCEDURE. A TREATISE ADAPTED TO USE IN ALL THE STATES AND TEERITOEIES WHERE THAT SYSTEM PEBVAILS. BY JOHN NORTON POM EROY, LL.D., AtTTHOB OF "AU LNTItODtlCTION TO MUIflOIPAl LAW," "AIT INTBODnOTION TO CONSTITOTIOUAI, LA-W," ETC., ETC. SECOND EDITION. BOSTON: LITTLE, BROWN, AND COMPANY. 1883. Entered accordin^to Act of Congress, in the year 1876, By John Norton Pomekot, In the OiBce of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1883, By John Norton Pomeroy, In the Office of the Librarian of Congress, at Washington. Unitersitt Press: John Wilson and Son, Cambridge. TO AARON J. VANDERPOEL, Esq., OF THE SEW TOKK BAK, THIS BOOK IS INSCKIEED ALIELE A3 A TEIEUTE TO HIS HIGH PROFESSIONAL CHAEACTER, AND AS AN EXPRESSION OF THE AUTHOR'S PERSONAL REGARD. PEEFACE TO THE SECOND EDITION. A SECOND EDITION of this work has for some time been needed, and the delay in preparing it must be attributed to an overwhelming pressure of other engagements. In now present- ing it to the profession, I desire to express my sincere thanks for the favor with which the book has been received by the Bar and the Bench. The work, when originally published, was to some extent an experiment. It was, I beheve, the first attempt pro- fessedly to treat of those features which are common to all the codes of procedure, and which constitute the essential elements of the new sj'stem. In it I ventured to call that system the "Reformed American Sj'^stem of Procedure," and was gratified to know that the name was accepted by one of its principal authors as distinc- tive and appropriate. The abbreviated title by which my book is commonly known, — " Remedies," — and which it is now too late to change, is in some respects misleading ; for it fails to in- dicate the real subject-matter and purpose of the work. In the full title given to it, the words " by the civil action " were meant to be the most emphatic and important. The work is intended to be both a scientific and a practical treatise of the fundamental principles and essential elements of the " Civil Action," as the instrument for administering justice established by the Reformed Procedure in all the Code States of our own country, and in Eng- land, and in many of the British colonies. Whatever varieties of VI PREFACE TO THE SECOND EDITION. detail in matters of mere practice may be found in the different State codes, these principles and elements are fundamental and essential, and are inherent in the Reformed Procedure wherever it prevails, whether in the United States or in Great Britain. They are the union of legal and equitable rights of action and remedies in the same civil action, resulting from the abolition of the distinction between actions at law and suits in equity, and of the forms of legal actions ; the equitable instead of the legal theory of parties ; the general principles of pleading, including the union of causes of action in the same complaint or petition ; the mode of stating causes of action; the answer of "denial," and what defences may be proved under it ; the answer of " new matter," and what defences it embraces, and equitable defences ; the counter-claim, including all affirmative relief, legal or equita- ble, to the defendant; the final reliefs, or judgments. In adjudi- cating upon these most important matters, the courts of the vari- ous Code States have, with a remarkable unanimity, substantially reached the same conclusions. At the inauguration of the new system, it is not surprising that there should have been some discrepancy of judicial opinion ; but everj;- j^ear has shown a stronger tendency towards a complete agreement, so that the unity of the system throughout the Code States is now virtually established. It would be a source of the highest gratification if I might believe that my own book had contributed anything to the attainment of this result. These are the subjects with which it deals; and by citing and comparing the corresponding sections of the codes, as well as the decisions interpreting them, in differ- ent States, it endeavors to present all that is essential to the reformed procedure, as one complete whole, and as both scien- tifically and practically superior to the common-law methods which it has displaced. In preparing this edition, I have not thought it expedient to alter in any substantial manner the original text ; a few mistakes and omissions have been corrected, but the text stands virtually PREFACE TO THE SECOND EDITION. vii unchanged. I have seen no siifBcient reason to modify any of its theoretical conclusions, and several of its practical conclusions have been sustained by the courts ; none, so far as I am aware, have been distinctly condemned. The new matter is, therefore, chiefly confined to the notes ; and it brings the discussions of the text, as illustrated by judicial opinion, down to the present day. The important decisions in each of the Code States and Territo- ries, made since the publication of the first edition, have been collected and arranged in the notes in connection with the doc- trines and rules to which they relate. Some cases may have been overlooked, but I believe the additions will enable the reader to discover the present condition of the law and of judi- cial authority upon all the important topics discussed in the text. A new and much fuller Index has also been added. I had re- ceived complaints from several sources that the Index of the first edition was too meagre for the wants of the practising lawyer; I trust it will be found that this defect has been cured. All other substantial additions, and new materials or modes of treat- ment, are reserved for the supplemental work on the Civil Action, by which I still hope to complete my original design. The Reformed Procedure is no longer an experiment. It is certain to become universal wherever the common law and equity jurisprudence is found. The fact that it was accepted, in all of its essentials, by the ablest judges, lawyers, and statesmen of England, shows that it rests upon a scientific as well as practical basis. It has been adopted, since the publication of this work, by two additional American States, Colorado and Connecticut ; its adoption in substance by all is, in my opinion, a mere ques- tion of time. There is, however, one grave defect in the legis- lation of all our American commonwealths, — with the single exception of Connecticut, — to which I would earnestly call the attention of all judges and lawyers who are interested in the im- provement of the law: a defect which is the immediate cause of nearly all the uncertainties, discrepancies, and conflicts of judicial VIU PREFACE TO THE SECOND EDITION. opinion that have arisen under the system. By the union of legal and equitable rights and remedies in the single civil action, courts were necessarily confronted with the direct opposition between many doctrines and rules of the common law and of equity, applicable to exactly the same condition of facts ; and the question at once arose. How is this opposition to be dealt with in the practical administration of justice ? Every lawyer who has carefully considered this matter, and especially every lawyer who has examined the course of judicial decision through all the Code States, will agree with me that this conflict between equitable and legal rules concerning the same state of facts has been the source of all the real difficulty in interpreting and set- tling the Reformed Procedure. Some courts have evaded the difficulty by retaining the distinctions between legal and equita- ble actions, and legal and equitable remedies, practically as broad and well defined as under the former system ; but this method plainly violates both the spirit and the letter of the codes. The whole difficulty and its cause might be removed by a brief addi- tion to the codes, which would carry out to its final results the clear intent of the reform. The same difficulty presented itself to the advocates of the new procedure in England while the measure was pending in Parliament ; it was obviated by insert- ing in the " Supreme Court of Judicature Act " the following clause : " Generally in all matters in which there is any conflict or variance between the rules of equity and the rules of the com- mon law, with reference to the same matter, the rules of equity shall prevail." The State of Connecticut has incorporated the clause into its recent reformatory legislation. If the provision, or one substantially the same, were added to all the codes, the union of legal and equitable remedies would be made perfect, and the Reformed Procedure would be freed from the only practical difficulty which it has encountered ; until such an amendment is effected, it must remain somewhat crippled in its operations, and imperfect in its results. PREFACE TO THE SECOND EDITION. ix In conclusion, I desire to acknowledge the aid which I have received, in preparing this edition, from my former students, Mr. Charles W. Slack and Mr. Marcellus A. Dorn, members of the San Francisco Bar. JOHN NORTON POMEROT. San Francisco, Feb. 17, 1883. Eastings College of the Law : University of Cali/omia, PREFACE TO THE FIRST EDITION. The new procedure which was devised by the codifiers and inaugurated by the Legislature of New York, in the year 1848, now prevails in more than twenty other States and Territories of this country, and may, therefore, be properly termed " The Re- formed American System of Procedure." After a most careful ■consideration, and the most cautious and deliberate examination by a commission composed of the ablest judges and barristers, it has finally been accepted in its essential features and elements by the British Parliament, and has recently displaced the time-hon- ored methods of the common-law and the equity courts in Eng- land. This fact alone may be regarded as decisive of its intrinsic excellence, as conclusively demonstrating that it is founded upon natural and true principles ; that it embodies rational notions in respect to the manner of conducting judicial controversies be- tween private litigants ; and that, in its conception and design, it is far superior to the artificial, technical, and arbitrary modes which had so long been, looked upon as perfect by generations of English and American lawyers. It is shown in the Intro- ductory Chapter of the present work that this whole course of reform is but a repetition, not simply in a general outline, but even in the minute details, of what took place in the jurispru- dence of Rome ; so that the modern legislation has, in this re- spect, merely followed an inevitable law of progress, which XU PREFACE TO THE FIRST EDITION. always works out the same results under the same social con- ditions and circumstances. Although the codes which have been enacted in the various States and Territories sometimes differ slightly from each other in respect to the minor measures and steps of practice, and al- though some of them, in reference to certain special matters, have more freely carried out the original and underlying theory to its logical results, and have by distinct provisions expressly abro- gated particular dogmas of the old law, which in other States are only included in the general language of the statute, and are thus left within the domain of judicial construction, yet in all its essential notions and fundamental doctrines the reformed pro- cedure is one and the same wherever it prevails, either in the United States or in England. The " Civil Action " which it has created and introduced as the single and sufSclent instrument for the trial of all judicial controversies between private suitors and for the pursuit of all judicial remedies is the same in concep- tion, in form, and in substance, possessing the same characteristic features, governed by the same elementary rules, and embodying the same organic principles. How completely the reformed sys- tem is severed from the ancient common-law modes, how entirely it abandons all the arbitrary, formal, and technical notions which were their very essence and life, and how firmly it rests upon natural and necessary facts as its foundations, is shown in the Introductory Chapter and in other portions of this work. It is impossible, therefore, that its full benefits can be attained, and that full scope can be given to its original purpose, until the courts and the profession shall accept it in its simplicity, and shall cease to obstruct its efficient operation and to interrupt its free movements by antiquated dogmas and rejected doctrines drawn from the system which it has thoroughly overthrown and supplanted. The design of the author is to present the entire remedial department of the law — the remedies and remedial rights — PEEFACE TO THE FIRST EDITION. xili according to the reformed procedure. The volume now sub- mitted to the profession, although in itself a complete and inde- pendent work, accomplishes a part of this full purpose. It treats of the " Civil Action," which is the central fact of the new pro- cedure, and which, as has been said, is everywhere the same in all its distinctive features and elements. It is not a treatise upon " Practice ; " but it discusses in a thoroughly practical manner those features and elements which constitute the Civil Action, and which differentiate that judicial proceeding from the action at law and the suit in equity. The discussions and conclusions which it contains are not theoretical ; they are everywhere and always based upon an exhaustive examination, analysis, and com- parison of the decided cases : and the author has freely drawn upon the judicial decisions of the States, and by this means presents to the reader a body of authority which fully indicates the action of the courts and their theories and modes of interpre- tation throughout the commonwealths in which the system pre- vails. Although it cannot be pretended that every case referring to the Civil Action has been cited, — in fact, many of them are unworthy of citation, since they are the reflections of crude and incorrect opinions long since rejected, while others are the mere repetitions of points already well settled, — yet it is believed that none are omitted which contain the statement of a new and correct principle. The author has endeavored to collect all the leading cases in every State, — all those which have been finally accepted as authoritative, and which represent the mature thought and convictions of the judiciary ; and in no other work can be found such a mass of judicial opinion gathered from courts of the vaxious States, giving a construction to the statu- tory provisions which describe the Civil Action, and building up an harmonious and consistent system of procedure upon the reform legislation. While the author has everywhere endeav- ored to reach the true principles of interpretation, and to extract from the cases a statement of universal doctiines which shall XI v: PEEFACE TO THE FIEST EDITION.' aid in the solution of all future questions, and has not sctupled to express his own views and opinions, such speculations and arguments are always plainly indicated and represented in their real character, so that the reader need never confound them with the results of actual judicial decision, and be thus led to accept as settled law what is only a personal conviction or suggestion of the author. While the work is thus intended to be a practical handbook for the lawyer, as an aid in the every-day duties of his profession, it is hoped that its use may tend to bring the procedures of the, different States into closer relations, and may finally produce the perfect identity of method and form which is possible from the legislation itself, and which was, beyond doubt, the design of the several legislatures in adopting the reform. Such an iden- tity is entirely practicable, and the.fuU beneficial results of the change will not be attained until it is reached. In every State there has accumulated a growing amount of judicial interpreta- tion which would be of the greatest assistance to the Bench and Bar of all the other States ; and in several of them certain spe- cial rules and methods have been wrought out and finally estab- lished, which need only to be known in order to be universally followed. Such a reform, founded on the nature of things, and not upon artificial and arbitrary assumptions, never goes back- ward ; and the time will surely come when the system that^ has already spread so widely will be introduced into every com- monwealth, and when the distinction between legal and equita- ble modes of pursuing remedies will disappear, and finally be forgotten. The central conception of the reformed procedure, and the one from which all the elements of the Civil Action are developed, is the abolition of the distinction between legal and equitable suits, and the substitution of one judicial instrument, by which both legal and equitable remedies may be obtained, either singly or in combination. The full scope and effect of this grand principle EEEFACE TO THE FIRST EDITION. XV are exhaustively discussed in the opening chapter, while the necessary limitations upon its operation which inhere in our judi- cial institutions are also carefully pointed out. Having thus laid the foundation upon which the whole superstructure rests, the remaining parts of the Civil Action are examined in turn, and the practical rules which control their use are minutely explained in the light of judicial authority. These general features are the parties to the Civil Action, plaintiff and defendant, the presenta- tion of the cause of action by the plaintiff, and of the defence or claim of affirmative relief by the defendant. The two latter divisions include, among other important particulars, the princi- ples of the reformed pleading ; the scope and effect of the gen- eral denial, with the defences which may be proved under it; the nature and object of specific denials ; the answer of new matter, and the defences which must be specially pleaded ; and the coun- ter-claim. The discussion of these special topics, being of the greatest practical importance, has been purposely made very full and minute. An attempt has also been made to obtain, in a general and complete form, the true meaning of certain phrases found in all the codes, upon which the interpretation of most important provisions, and the practical rules resulting therefrom, so closely depend. Among the statutory phrases are " the cause of action," " the subject of action," " transaction," " causes of action arising out of the same transaction," and the like. If the author has succeeded in ascertaining the true meaning of these and similar expressions, and the legislative intent in their use, he is confident that he will have rendered a substantial aid to the profession, and even to the courts, in the difficult work of statu- tory interpretation. The treatise, as a whole, if its purpose has been properly carried out, will be a practical handbook, adapted to the use of the profession in every State and Territory where the reformed procedure prevails. It is also designed as a text- book for students, whether in offices or in law schools ; and to that end frequent reference has been made to the common-law and XVI PKEFACE TO THE FIRST EDITION. equity systems of procedure, in explanation of their more general doctrines and principles, and in comparing them with those which have been substituted in their place. If its reception by the Bar shall be favorable, the author's original design will be completed by a second, but entirely distinct and independent, volume, which will treat of the remedies and remedial rights that may be ob- tained and enforced by means of the Civil Action, their nature and classification, and the particular rules and doctrines which regulate the employment of the action in their pursuit. JOHN NORTON POMEROY. Rochester, N. T., December, 1875. TABLE OF CONTENTS. ESTTRODUCTORY CHAPTER. Section, Remedies defined 1-4 SECTION" FIRST. The Remedial System prior to the Modern Reforms. The prevalence of technical forms 5 I. The Universal Principle of Legal Development in respect to Remedies and Remedial Rights. Use of forms ; fictions ; equity ; and legislation 6-10 II. The Workings of this Principle in the Roman Law. Early actions ; jurisdiction of the praetors ; formulae 11-14 m. The Workings of this Principle in the English Law. Common-law actions described 15-21 Origin and growth of equity 22 Resemblance between the English and the Roman laws 23 Effect of the use of actions upon the law 24 SECTION SECOND. Remedies and Remedial Rights prior to the Modern Reform in Procedure. The practical mode of classification under the former system . . . 25-27 SECTION THIRD. Remedies and Remedial Rights under the Reformed American Procedure. I. The Reformatory Legislation. Fundamental principles of the new procedure 28-30 b xviii TABLE OF CONTENTS. II. The General Nature of the Civil Action. Essential features and principles of the civil action described . . . 31-41 Plan and divisions of this vyork 42, 43 PART FIRST. THE CIVIL ACTION ACCORDING TO THE AMERICAN SYS- TEM OF PROCEDURE: ITS ESSENTIAL PRINCIPLES AND FEATURES. , CHAPTER FIRST. The Principle of Unity in all Judicial Proceedings ; Abolition of the Dis- tinctions between Actions at Law and Suits in Equity, and of the Com- mon-Low Forms of Action ; Adoption of a Single Civil Action for all Purposes. Statutory provisions 44 SECTION FIRST. A Theoretical Unity in Procedure ; or, The Theory of an Abso- lute Unity op Legal and Equitable Actions. The nature of " equity " 45-53 Equitable primary rights and remedies compared with legal .... 46-52 Theory of a complete union of legal and equitable actions . . . < 54-64 SECTION SECOND. The General Principles in respect to a Union op Legal and Equitable Methods as adopted by the Courts ; how par such A Union has been effected by a Judicial Interpretation op THE Codes. Statement of the question to be discussed 65 Restrictive system of interpretation advocated by certain judges . . 66 Liberal and correct system established by the courts 67-73 This system as applied to pleading 74, 75 SECTION THIRD. The Combination by the Plaintiff op Legal and Equitable Pri- mary Rights and Remedies in one Action. General nature of such a union 76, 77 The various cases of legal and equitable causes of action and remedies united in the same suit, stated and illustrated 78-85 Mode of trial of legal and equitable issues when thus united ... 86 TABLE OF CONTENTS. XIX SECTION FOURTH. Equitable Defences to Actions brought to obtain Legal Remedies. Former mode of using an equitable right to defeat a legal action . . 87 Nature of an equitable defence ; whether it must entitle defendant to affirmative relief 88-91 Examples of equitable defences 92-97 SECTION FIFTH. A Legal Remedt obtained upon an Equitable Ownership ok Equitable Primary Right. AVhether the owner of an equitable estate in land can ever maintain a legal action to recover possession, discussed 98-103 Actions between partners, whether the former rule has been changed 104 Examples of other actions ' 105 Summary of the foregoing discussion 106 SECTION SIXTH. The Nature of Civil Actions, and the Essential Differences between them. Essential distinctions still existing between actions ; in what features these distinctions are found 107-111 CHAPTER SECOND. The Parties to the Civil Action. SECTION FIRST. Statutory Provisions. Legal and equitable theories of parties contrasted 112 Provisions of the codes, and the general principles established by them '. '. 113-123 SECTION SECOND. The Real Party in Interest to be made Plaintiff. Provision of the codes 124 Discussion of the doctrine that the assignee of a thing in action should sue in his own name 125-138 XX TABLE OF CONTENTS. The person for whose benefit a promise is made to another may sue in his own name 139 Other examples of real parties in interest 140, 141 Suits by tax-payers against local officials, &c. ; and by the people . 142 " grantee of land in name of the grantor 143 SECTION THIRD. The Assignability op Things in Action. The principle of survivorship stated and discussed 144-146 What things in action are assignable ; examples 147-152 Things in action not assignable 152, 153 SECTION FOURTH. Effect of an Assignment of a thing in Action upon the Defences THERETO. Provision of the codes 154 Interpretation of this provision ; equities and defences in favor of the debtor 155-157 Equities between assignors and assignees ; general discussion of the doctrine 158-162 When defendant can set up a claim against assignor as a set-ofE or other defence to the assignee 163-170 SECTION FIFTH. When a Trustee of an Express Trust mat sue. " Trustee of an express trust " defined . 171-174 Suits by persons " by whom, &c. , a contract is made for the benefit of another " 176-177 Suits by other trustees 178 " public officers, &c. ; by "persons expressly authorized by statute " 179, 180 " executors or administrators ; special law of California . . 181 " guardians of infants ; of lunatics, &c 182 SECTION SIXTH. Who may be joined as Plaintiffs. Provisions of the codes 183 Common-law rules as to joinder of plaintifi^s ; joint right .... 184-198 Fundamental principles of the codes as shown by their language . 194-200 TABLE OF CONTENTS. XXI General theory of interpretation established by the courts . . . 201-205 How questions as to misjoinder or nonjoinder of plaintiffs are raised 206-216 Rules as to Plaintiffs in Particular Classes of Cases. Divisions of the subject 217 First. Union or Separation of Plaintiffs in Legal Actions. I. Actions by owners in common, or joint-owners of land . . . 218-220 II. Actions by joint-owners of chattels 221-225 III. Actions by persons having joint rights arising from contract . 226-228 IV. Actions by persons having several rights arising from contract 229 V. Actions by persons having joint rights arising from personal torts 230 VI. Actions by persons having several rights arising from personal torts 231 VII. Actions in special cases 232, 233 Second. A ctions by and between Husband and Wife. Statutory provisions in various States 234^236 Interpretation : cases discussed in which a wife may sue alone, or with her husband ; when she may sue lier husband 237-246 Third. Equitable Actions. Doctrines and rules as to plaintiffs in equitable actions fully dis- cussed 247-270 SECTION" SEVENTH. Who may be joined as Defendants. Provisions of the codes ; divisions of the subject 271, 272 Common-law rules as to the joinder of defendants 273-283 General principles of the reformed procedure 284-286 How questions of misjoinder and nonjoinder are to be raised . . . 287-292 Effect of a nonjoinder ; bringing in the necessary parties .... 293 First. Rules as to Defendants in Legal Actions. I. In actions against owners or occupants of land 294-298 II. In actions against owners or possessors of chattels .... 297, 298 III. In actions upon contract, joint liability 299-304 IV. In actions upon contract, joint and several liability .... 305 V. In actions upon contract, several liability 306 VI. In actions for torts 307-314 VII. In actions in settlement of decedents' estates 315 VIII. In special actions 316, 317 Xxii TABLE OP CONTENTS. Second. Actions against Husband and Wife. General nature of the modern legislation 318, 319 Discussion of cases when wife may be sued alone ; when sued with her husband 320-328 Third. Equitable Actions. I. General principles 329-332 II. Actions to foreclose mortgages 333-345 III. Creditors' actions 346-350 IV. Actions relating to decedents' estates 351-355 V. Actions in reference to trusts 356-359 VI. Actions against corporations and stockholders ; and between partners 360-365 VII. Actions for a specific performance 366-368 VIII. Actions to quiet titles 369-372 IX. Actions for a partition 373-377 X. Actions for miscellaneous objects ; partnership matters and accounting ; rescission ; enforcement of liens ; contribu- tion ; by taxpayers ; to redeem 378-387 SECTION EIGHTH. When one Person may sue or be sued on. Behalf or all the Persons interested. Provisions of the codes 388 Their interpretation, general scope and meaning 389-393 Cases in which such a representative action may be brought . . . 394, 395 Eights of the persons I'epresented ; how they are affected by the de- cree, &c 396-401 SECTION NINTH. Persons severally Liable on the Same Instrument. Provisions of the codes 402, 403 Their interpretation 404-406 Discussion of cases within the provision, and of rules resulting from it 407-410 SECTION TENTH. Bringing in New Parties ; Intervention. Statutory provisions 411-413 Proceedings provided for by the codes 414-417 I. Bringing in additional parties ; examples 418-422 II. Intervention, or the coming in of third persons on their own motion, as found in the codes generally 423-425 III. Iowa and California system of intei-vention 426-431 TABLE OF CONTENTS. xxiii CHAPTER THIRD. The Affirmative Subject- Matter of the Action : the Formal Statement of the Cause of Action by the Plaintiff. SECTION FIRST. The Statutory Provisions. Provisions of the codes 432-435 'Divisions of the subject ' 436 SECTION SECOND. Joinder of Causes of Action. Divisions of the section 437 I. Statutory provisions 438-441 II. The forms and modes in vphich a misjoinder may occur ; and the manner in which it must be objected to and corrected . 442-451 HI. Meaning of the term "cause of action;" when one cause of action only is stated, although sevei'al different kinds of re- lief are demanded 452-461 IV. The joinder of causes of action arising out of the same transac- tion ; or transactions connected with the same subject of action; legal meaning of the terms "transaction" and " subject of action " 462-478 V. Instances in which the proper joinder of causes of action is connected with the proper joinder of defendants ; discussion of the provision that all the causes of action must aifect all the parties 47^-490 VT. Instances in which all the causes of action are against a single defendant, or against all the defendants alike 491-505 SECTION THIRD. The General Principles of Pleading. The ancient types of pleading ; by allegation ; equitable, and com- mon-law, described 506-512 The reformed pleading ; on what based ; extent of its application . 513-516 The fundamental rules stated 517 " Cause of action" defined ; distinction between legal and equita- ble ; elements which enter into the cause of action 518-529 Foregoing doctrines ilustrated by decided cases 530-532 Examples of sufficient and insufiicient allegations 533-536 Mode of alleging an implied promise, discussed 537-541 XXIV TABLE OF CONTENTS. Use of the common counts, discussed 542-544 Further divisions of the subject 545 Liberal construction of pleadings . . ' 546, 547 I. Insufficient, imperfect, &c., allegations ; how objected to and corrected 548-550 II. Redundant and irrelevant 551, 552 III. The cause of action or defence proved must correspond with that alleged ; actions ex contractu and ex delicto .... 553-564 Amendments of pleadings 565, 566 Election between actions for tort and those on contract .... 567-573 SECTION FOURTH. The Form op the Complaint or Petition. How separate causes of action should be stated 574-576 Joint demurrers and answers, effect of 577 Allegations admitted by a failure to deny 578 Defects in complaint or petition when supplied by the answer . . 579 Prayer for relief, effect of 580 CHAPTER FOURTH. The Defensive Subject-Matter of the Action; the Formal Presentation of his Defence, or his Claim for Affirmative Relief, by the Defendant. SECTION FIRST. Statutory Provisions. Provisions of the codes, aiTanged and classified 581-590 Divisions of this chapter 591 SECTION SECOND. General Requisites of an Answer ; General Rules Applicable to ALL Answers. Kinds of defences ; questions of form and of substance concerning them _ 592-595 Defective answers, mode of correcting them 596-605 Joint answers ; demurrers to entire answers 606 Partial defences, how pleaded 607-609 TABLE OF CONTENTS. XXV SECTION THIRD. The Defence of Denials. Kinds of denials described ; divisions of the subject 610-612 I. External form of denials general or specific 613 II. Nature and object of specific denials 614-616 III. Allegations admitted by a failure to deny 617 IV. Denials in tlie form of a negative pregnant 618-623 V. Argumentative denials ; specific defences equivalent to the general denial , • • • 624-632 VI. General denials of all allegations not otherwise admitted, &c. 633-636 VII. Allegations of issuable facts not conclusions of law to be denied 637-639 VIII. Denials of knowledge or information, &o> 640, 641 IX. Issues raised by denials, and what may be proved under them 642-682 General statement of the questions involved 642-644 " General issues " at the common law stated and discussed . 645-656 General nature and object of the " general denial;" what issues it raises 657-669 'General nature of the defences admissible under it ... . 670-673 Particular defences which have been held admissible . . . 674-682 X. Some special statutory rules concerning the general denial . 683-685 SECTION FOURTH. The Defence of New Matter. Divisions of the subject 686 I. How defences of new matter should be pleaded 687-689 n. General nature of new matter ; defences in mitigation and in abatement 690-698 III. Particular defences held to be new matter 699-714 SECTION FIFTH. Union of Defences in the Same Answer. Divisions of the subject, &c 715 I. How the separate defences should be stated 716-720 II. What kind of defences may be joined ; in abatement and in bar ; inconsistent defences 720-725 SECTION SIXTH. Counter-claim, Cross-Complaint, and Cross-Demand. Classification and divisions of the subject 726, 727 Cross-demands in the former procedure, set-off, recoupment . . . 728-733 I. General description of the counter-claim ; its nature, objects, and uses 734-748 XXVI TABLE OF CONTENTS. II. The parties in their relations with the counter-claim .... 749-762 1. The defendant : must be a demand in favor of the defend- ant who pleads it 749-751 2. The plaintiff : must in general be a demand against the plaintiff or all the plaintiffs 752-754 3. When it may be in favor of one or more of several defend- ants, and against one or more of several plaintiffs . . . 755-762 III. The subject-matter of the counter-claim, or the nature of the causes of action which may be pleaded 763-803 A. Whether it may be an equitable cause of action .... 764-767 B. The particular questions arising under the first clause of the statutory definition 768-794 General principles of construction 769-776 I. Where the couiiter-claim arises out of the contract set forth in the complaint or petition 777-780 II. Where it arises out of the transaction set forth in the complaint or petition 781-792 III. Where it is connected with the subject of the action . 798, 794 C. Counter-claims embraced within the second subdivision of the statutory definition, and set-offs 795-803 IV. Some miscellaneous provisions in relation to counter-claims . 804, 805 Cross-complaints 806-808 TABLE OF CASES CITED. [the refekences ake to the pages.] Abadie v. CarriUo, 32 Cal. 172 594 Abbe V. Clarke, 31 Barb. 238 250, 750 Abbot V. Chapman, 2 Lev. 81 705 Abbott V. Jewett, 26 Hun, 603 468 V. Monti, 3 Col. 561 121, 845 Abeel v. Van Gelder, 36 N. Y. 513 351 Abendroth v. Boardley, 27 Wis. 555 639 Aberaman Iron Co. v. Wickens, L. R. 4 Ch. App. 101 816 Abiel V. Harrington, 18 Kan. 253 587 Acker v. McCullough, 50 Ind. 447 644 Ackley v. Tarbox, 31 N. Y. 564 253, 289 Ackroyd v. Briggs, 14 W. R. 25 304 Adair !). New River Co., 11 Ves. 444 424, 441, 444 Adams v. Adams, 25 Minn. 72 587 V. Bissell, 28 Barb. 382 512, 519 V. Curtis, 4 Lans. 164 290 V. Farr, 5 N. Y. Sup. Ct. 59 281 V. Hall, 2 Vt. 9 384 V. HoUey, 12 How. Pr. 326 593 V. Honness, 62 Barb. 326 289, 376 V. Rodarmel, 19 Ind. 339 198, 201 V. Sater, 19 Ind. 418 287 V. Trigg, 37 Mo. 141 761 Adams Ex. Co. v. Darnell, 31 Ind. 20 675, 685, 714, 722 V. Hill, 43 Ind. 157 727 Addieken v. Schrubbe, 45 Iowa, 315 522 Adkins v. Adkins, 48 Ind. 12 668 Agar V. Fairfax, 17 Ves. 542 428 Agard v. Valencia, 39 Cal. 292 420 Agate V. King, 17 Abb. Pr. 159 782 Ahem v. Collins, 39 Mo. 145 656 Aiken v. Bruen, 21 Ind. 137 641 Ainstey v. Mead, 3 Lans. 116 376 Ainslie v. Boynton, 2 Barb. 258 189 Ainsworth v. Bowen, 9 Wis. 348 812, 823, 827 Akerly v. Vilas, 15 Wis. 401 812, 833, 842 Aleix V. Derbigny, 22 La. An. 385 473 Alexander, In re, 37 Iowa, 464 290 V. Barker, 2 Tyr, 140 227 Alexander v. Cana, 1 De G. & Sm. 415 422 u. Gaar, 15 Ind. 89 260 V. Kurd, 64 N. Y. 228 281 17. Jaooby, 23 Ohio St. 358 272, 276 V. Quigley, 2 Duvall, 300 406 Alford V. Barnum, 45 Cal. 482 751 Allaire v. Whitney, I Hill, 484 769 Allen ». Brown, 44 N. Y. 228 155, 161 V. Buffalo, 38 N. Y. 280 251, 253 V. Fosgate, 11 How. Pr. 218 862, 456 V. Jerauld, 31 Ind. 372 371 V. Knight, 5 Hare, 272 314 V. Miller, 11 Ohio St. 374 166 V. Patterson, 7 N. Y. 476 94, 593 V. Randolph, 48 Ind. 496 668, 685, 829 V. Ranson, 44 Mo. 263 351 V. Saunders, 6 Neb. 436 733 V. Shackelton, 15 Ohio St. 145 784, 833 V. Smith, 16 N. Y. 415 418 V. Thomas, 3 Mete. 198 167, 168 AUis V. Leonard, 46 N. Y. 688 674, 688 V. Nanson, 41 Ind. 154 789 Allison V. Chicago, &c. R. R., 42 Iowa, 274 740 V. Louisville, &c. R. R., 9 Bush, 247 174 V. Robinson, 78 N. C. 222 - 302 ^. Weller, 6 N. Y. Sup. Ct. 291 404 AUred v. Bray, 41 Mo. 484 364 Alnutt y. Leper, 48 Mo. 319 344, 345 Alspaugh V. Franklin, &c. Ass'n, 51 Ind. 271 480 Alston V. Wilson, 44 Iowa, 130 642 Althouse V. Rice, 4 E. D. Smith, 347 744 Alvey V. Wilson, 9 Kan. 401 356 Alvord V. Essner, 46 Ind. 156 668 Amador Co. v. Butterfield, 51 Cal. 526 714, 760, 761 American, &o. Co. v. Gurnee, 45 Wis. 49 641 Ammerman v. Crosby, 26 Ind. 451 714, 725 Amos V. Ilumbolt Loan Ass'n, 21 Kan. 474 843 XXVlll TABLE OF CASES CITED. Anderson v. Case, 28 Wis. 505 617, 621, 626 V. Hill, 53 Barb. 238 373, 493, 509, 520 V. Hunn, 5 Hun, 79 85, 96 V. Martindale, 1 East, 497 226, 227, 229 V. Nicliolas, 28 N. Y. 600 190, 191 V. Sutton, 2 Duv. 480 307 V. Watson, 3 Mete. 609 224 Andreas v. Holcombe, 22 Minn. 339 586 Andrews v. Bond, 16 Barb. 633 707, 717, 722 V. Brown, 21 Ala. 437 310 V. Gillespie, 47 N. Y. 487 118, 189, 418, 804 «. McDaniel, 68 N. C. 385 154, 162 V. Mokelumne Hill Co., 7 Cal. 330 247, 250, 270, 274 I). Pratt, 44 Cal. 309 174 Annett i'. Kerr, 28 How. Pr. 324 217 Anonymous, 3 Atk. 572 319 8 How. Pr. 434 738 3 Swanst. 139 304 1 Vern. 261 410 1 Ves. 29 630 Anson v. Anson, 20 Iowa, 55 391, 399, 403, 437 V. Dwight, 18 Iowa, 241 730 Anthony v. Nye, 30 Cal. 401 399, 401 V. Stinson, 4 Kan. 211 840 Antisdel v. Chicago & N. W. R. R., 26 Wis. 145 582, 606 Archibald v. Mut. Life Ins. Co., 38 Wis. 542 152 Ardry v. Ardry, 16 Louis. 264 473 Arendell v. Blackwell, Dev. Eq. 354 310 Argotsinger v. Vines, 82 N. Y. 308 586 Arguello v. Edinger, 10 Cal. 160 118 Arimond v. Green Bay, &c. Co., 31 Wis. 316 522 Armine v. Spencer, 4 Wend. 406 229 Armstrong v. Armstrong, 27 Ind. 186 806 V. Hall, 17 How. Pr. 76 540 V. Hinds, 8 Minn. 254 518, 534 V. Nichols, 32 Ind. 223 379 V. Vroman. 11 Minn. 220 416 Arnold w. Angell, 62 N. Y. 508 104,611, 614 V. Bainbrigge, 2 De G. P. & J. 92 308, 400 i;. Baker, 6 Neb. 134 586 V. Dimon, 4 Sandf. 680 761 B. Nichols, 64 N. Y. 117 169 V. Suffolk Bank, 27 Barb. 424 363 Arsdale v. Drake, 2 Barb. 699 428 Arthur v. Homestead Ins. Co., 78 N. Y. 462 105 Aschermann v. Wrigglesworth, 44 Wis. 255 613 Ashby V. Winston, 26 Mo. 210 492 Ashley v. Marshall, 29 N. Y. 494 834 Askins v. Hearns, 3 Abb. Pr. 184 810, 831 Atkinson v. Collins, 9 Abb. Pr. 353 596 Atteberry v. Powell, 29 Mo. 429 761 Atty.-Gen. v. Mayor, 3 Duer, 119 463 u. Stephens, 1 K. & J. 724 305 0. Wynne, Mos. 126 803 Atwater v. Schenck, 9 Wis. 160 838 Anbuchon v. Lory, 33 Mo. 99 264 Auburn, Nat. Bk. of v. Lewis, 81 N. Y. 15 822 Aucker w. Adams, 23 Ohio St. 543 344 Audsley v. Horn, 26 Beav. 195 308, 400 Auld V. Butcher, 2 Kan. 135 761 AuU V. Jones, 5 Neb. 500 604 Austin V. Munro, 47 N. Y. 360 526, 540 V. Rawdon, 44 N. Y. 63 618, 624 V. Schluyster, 7 Hun, 276 587 Averbeck v. Hall, 14 Bush, 505 586 Ayers v. Lawrence, 59 N. Y. 192 174 Aylesworth v. Brown, 31 Ind. 270 364 Ayrault v. Pacific Bank, 6 Robt. 337 182 Ayres v. Covill, 18 Barb. 264 643 V. 'Parrell, 4 Robt. 668 827 B. B V. Walford, 4 Russ. 372 422 Baas u. Chicago, &c. B. R., 89 Wis. 296 ' 400, 403, 463 Babbage v. Baptist Church, 54 Iowa, 172 674 Babbett v. Young, 51 Barb. 466 790 Backus V. Clark, 1 Kan. 303 753 Badger v. Benedict, 4 Abb. Pr. 176 618 Badgley v. Decker, 44 Barb. 577 282, 289 Baggott V. Boulger, 2 Duer, 160 217 Bagsliaw v. Eastern Union R. Co., 7 Hare, 114 302 Bailey ;;. Bayne, 20 Kan. 667 727 V. Bergen, 4 N. Y. Sup. Ct. 642 114 V. Inglce, 2 Paige, 278 411 V. Myrick, 36 Me. 50 308, 437 Bainbridge v. Burton, 2 Beav. 539 320 Baird v. Morford, 29 Iowa, 531 761, 794 Baken v. Hander, 6 N. Y. S. C. 440 376 Baker v. Bailey, 16 Barb. 54 677 V. Bartol, 7 Cal. 551 172 V. Connell, 1 Daly, 469 823 V. Dessauer, 49 Ind. 28 611 V. Jewell, 6 Mass. 460 228, 230 V. Kistler, 13 Ind. 63 676, 741 V. Riley, 16 Ind. 479 467 Balch V. Wilson, 26 Minn. 299 586 Baldree v. Davenport, 7 La. An. 587 473 Baldwin v. Canfield, 26 Minn. 43 260 V. Martin, 14 Abb. Pr. N. S. 9 763 V. V. S. Tel. Co., 54 Barb. 505 765 Ball V. Bennett, 21 Ind. 427 373, 374 V. Fulton, 31 Ark. 379 595, 604 Ballard v. Burgett, 40 N. Y. 314 191, 194 Balle V. Mossley, 13 S. C. 439 644 Ballin v. Dillaye, 37 N. Y. 35 379 Baltimore v. Gill, 31 Md. 562 174 Banfield v. Rumsey, 4 N. Y. S. C. 322 ' 377 Bank v. Herbert, 53 Cal. 375 396 TABLE OF CASES CITED. XXIX Bank v. Kitcliing, 7 Bosw. 664 609 Banks v. Johnson, 4 J. J. Marsh. 649 578 Bannister v. Grassy Fork D. Ass'n, 52 Ind. 178 685 Baptist Ch. v. Presb. Ch., 18 B. Mon. 635 311, 312, 321 Barclay v. Quicksilver Mining Co., 6 Lans. 25 751 V. Yeomans, 27 Wis. 682 349 Barden v. Supervisors, 33 Wis. 45 753 Bardstown, &c. R. R. u. Metcalf, 4 Mete. 199 219, 440, 443 Barhyte v. Hughes, 33 Barb. 320 810, 831 Baring v. Nash, 1 Ves. & B. 551 304, 428 Barker v. Bradley, 42 N. Y. 316 167, 169 V. Knickerbocker Life Ins. Co. 24 Wis. 630 824 V. Walters, 8 Beav. 92 444 Barlow v. Burns, 40 Gal. 351 639 V. Meyers, 6 N. Y. Sup. Ct. 183 167, 169, 199, 202 V. Scott, 12 Iowa, 63 357 V. Scott, 24 N. Y. 40 87, 102, 502, 624 Earner v. Morehead, 22 Ind. 354 641 Barnes v. Beloit, 19 Wis. 93 324 V. Martin, 15 Wis. 240 293 V. Quigley, 59 N. Y. 265 617, 620 .;. Racine, 4 Wis. 454 322 a. Smitli, 16 Abb. Pr. 420 523 ..■. Stephens, 62 Ind. 226 640 Barnett v. Leonard, 66 Ind. 422 250, 293, 604 Barnstead v. Empire Min. Co., 5 Gal. 299 104, 130 Barr v. Deniston, 19 N. H. 170 174 V. Hack, 46 Iowa, 308 760 V. Shaw, 10 Hun, 580 519 Barrall v. Be Groot, 5 Duer, 382 788 Barrett v. Goodshaw, 12 Bush, 592 693 V. Tewksbury, 18 Cal. 334 291, 295 V. Watts, 13 S. C. 441 499 Barron v. Frink, 30 Cal. 486 578 Barry v. Equitable Life Ins. Soc, 59 N. Y. 587 186, 190 Bartges v. O'Neil, 13 Ohio St. 72 255, 291 Barthgate v. Haskin, 59 N. Y. 533 798, 836 Barthol v. Blakin, 34 Iowa, 452 162, 602 Bartlett v. Drew, 57 N. Y. 587 319, 407 V. Judd, 21 N. Y. 200 116, 120 V. PickersgiU, 1 Cox, 15 301 Barton v. Speis, 5 Hun, 60 363, 456, 522 Bass V. Comstock, 38 N. Y. 21 491 Bassett v. Crowell, 3 Robt. 72 353 I). Lederer, 1 Hun, 274 741 V. Warner, 23 Wis. 673 408, 492, 501 Bastable v. Poole, 1 C. M. & R. 410 172 Bate V. Graham, 11 N. Y. 237 606, 643 V. Sheets, 50 Ind. 329 714 Bateman v. Bargerison, 6 Hare, 496 314 Bates V. Cobb, 5 Bosw. 29 593 V. Rosekrans, 37 N. Y. 409 787, 788, 790 V. Ruddick, 2 Iowa, 423 392, 399 Batterman v. Peirce, 3 Hill, 171 768, 769 ' Bauer v. Wagner, 39 Mo. 385 750, 761 Baum, Succession of, 11 Rob. 314 473 u. Grigsby, 21 Cal. 172 187 V. Mullen, 47 N. Y. 577 376 Bayley v. Best, 1 Russ. & My. 659 305 Baynard v. WooUey, 20 Beav. 583 313 Beach v. Bradley, 8 Paige, 146 411 Beals I). Cobb, 51 Me. 348 437 Bean v. Kiah, 6 N. Y. Sup. Ct. 464 289 Beard v. Dedolph, 29 Wis. 136 288 Bearss v. Montgomery, 46 Ind. 544 224 Beaty v. Swarthout, 32 Barb. 293 708, 717, 751 Beaudette v. Fond du Lac, 40 Wis. 44 293 Beaumont ». Miller, Stant. Ky. Code, 42 288, 380 Beaver Dam v. Fringe, 17 Wis. 398 219 Bebee v. Hutchinson, 17 B. Mon. 496 281 Becker v. Boon, 61 N. Y. 317 657, 732 V. Crow, 7 Bush, 198 • 642 V. Sandusky City Bk., 1 Minn. 311 118 V. Sweetzer, 15 Minn. 427 669, 688 Beckett v. Lawrence, 7 Abb. Pr. 403 737 Beckwith V. Dargels, 18 Iowa, 303 339, 424 V. Peirce, 22 La. An. 67 473 i>. Union Bank, 9 N. Y. 211 188,198, 199 Bedell v. Hayes, 21 La. An. 643 473 Beers v. Shannon, 73 N. Y. 292 251 V. Waterbury, 8 Bosw. 396 788 Beeson v. Howard, 44 Ind. 413 668, 749 Belknap v. Mclntyre, 2 Abb. Pr. 366 793, 796 o. Sealey, 14 N. Y. 143 621 Bell V. Brown, 22 Cal. 671 760 Belleau v. Thompson, 33 Cal. 495 771 Bellinger v. Craigue, 31 Barb. 534 777, 843 Belloc V. Rogers, 9 Cal. 123 393, 395 Bellows V. Rosenthal, 31 Ind. 116 379 Bendell v. Hettrich, 45 How. Pr. 198 272 Benedict v. Benedict, 85 N. Y. 625 644 Benjamin v. Loughborough, 31 Ark. 2i0 413 Benkard v. Babcock, 2 Robt. 175 823 Bennett v. McGrade, 15 Minn. 132 164 V. McGuire, 5 Lans. 183 405 V. Preston, 17 Ind. 291 249, 644 V. Titherington, 6 Bush, 192 106, 119 Bensley v. McMillan, 49 Iowa, 517 642 Bentley v. Bustard, 16 B. Mon. 643 732 V. Jones, 7 Greg. 108 587 Bentz V. Thurber, 1 N. Y. Sup. Ct. 645 357 Bercich v. Mayre, 9 Nev. 312 194 Berkshire v. Shultz, 25 Ind. 523 249, 251, 255, 266, 307 Berly v. Taylor, 5 Hill, 577 631, 632 Bernheimer v. Wallis, 11 Hun, 16 810 Berry v. Brett, 6 Bosw. 627 840 V. Carter, 19 Kan. 135 489 Besser v. Hawthorne, 3 Greg. 129 400 Bethel o. Wilson, 1 Dev. & Bat. Eq. 610 310 XXX TABLE OF CASES CITED. Bettinger v. Bell, 65 Ind. 445 436 Betts V. Baulie, 14 Abb. Pr. 279 593 Bevier v. Dillingliara, 18 Wis. 529 :J40 Beyer v. Reid, 18 Kan. 86 629 Kiddie v. Ramsay, 52 Mo. 153 604 Bidwell V. Astor Mut. Ins. Co., 1 6 N. Y. 263 83, 86, 99, 100, 500, 520 V. Madison, 10 Minn. 13 838 Bigelow V. Bush, 6 Paige, 343 389, 393 V. Gove, 7 Cal. 133 642 Biggs V. Biggs, 50 Wis. 443 609 V. Penn, 4 Hare, 469 414 V. Williams, 66 N. C. 427 223 Bill V. Cureton, 2 M. & K. 503 318 Billings V. Drew, 52 Cal. 565 760, 761 Bingliam v. Kimball, 17 Ind. 396 714, 749 Birbeck v. Stafford, 14 Abb. Pr. 285 184 Bird V. Mayer, 8 Wis. 862 557, 559 V. McCoy, 22 Iowa, 549 790, 799 Birdsall v. Birdsall, 52 Wis. 208 639 Bishop V. Davis, 9 Hun, 342 618, 620 V. Edminston, 16 Abb. Pr. 466 268 u. Griffith, 4 Col. 68 610, 614 Bitter v. Ratliman, 61 N. Y. 512 289 Bitting V. Tiiaxton, 72 N. C. 541 831, 834 Black V. Duncan, 60 Ind. 522 340 V. Elmer, 54 Ind. 544 822 Blackburn v. Sweet. 38 Wis. 578 344 Blair v. Hamiltim, 48 Ind. 32 180 V. Shelby Co. Agr. Soc, 28 Ind. 175 443 Blake v. Buffalo Creek R. R., 66 N. Y. 485 113 t'. Comm'rs, 18 Kan. 266 642 V. Jones, 3 Anst. 651 302 V. Van Tilborg, 21 Wis. 672 501, 520 Blakeley v. he Due, 22 Minn. 476 250 Blancliard v. Ely, 21 Wend. 342 769 Bland v. Winter, 1 S. & S. 246 431, 435 Blanke v. Bryant, 56 N. Y. 649 376 Blaukenship v. Rogers, 10 Ind. 333 799, 840 Blankman v. Vallejo, 15 Cal. 638 678 Blasdel v. Williams, 9 Nev. 161 602, 604, 605 Bleaksley v. BomfC, 71 Ind. 93 777 Bledsoe v. Irvin, 35 Ind. 293 3-54 ./. Rader, 30 Ind. 354 771 V. Simms. 53 Mo. 306 350, 725, 753 Blethen v. Blake, 44 Cal. 117 752 Blew V. Hoover, 30 Ind. 460 840 Bliss V. Cottle, 32 Barb. 322 577 V. Lawrence, 58 N. Y. 442 184 Blizzard v. Applegate, 61 Ind. 368 727 Blood V. Fairbanks, 48 Cal. 171 104, 431, 629 Bloomer v. Sturges, 58 N. Y. 168 399, 437 Blossom V. Barrett, 37 N. Y. 434 492 Blount V. Burrow, 3 Bro. C. C. 90 314 Blum V. Robinson, 24 Cal. 127 118 Blydenburgh v. Thayer, 3 Keyes, 293 189, 198 Boardman v. Beckwith, 18 Iowa, 292 218 V. Griffin, 52 Ind. 101 610 Boardman v. L. S., &c. E. R., 84 N. Y. 157 499 Boaz i;. Tate, 43 Ind. 60 731, 744 Bobb V. Woodward, 42 Md. 482 89, 98 Bockes r. Lansing, 74 N. Y. 437 104 Bodine v. Killeen, 63 N. Y. 93 376 Boehme v. Sunie, 5 Neb. 80 586 Bogardus v. Parker, 7 How. Pr. 305 430, 810 Bogart V. O'Regan, 1 E. D. Smith, 590 216 Bogert V. Gulick, 65 Barb. 322 377 Bohall V. Diller, 41 Cal. 532 586 Boit V. Sims, 60 N. Y. 162 830 Bolen V. Crosby, 49 N. Y. 183 164 V. San Gorgonio Co., 55 Cal. 464 611 Bond V. Corbet, 2 Minn. 248 669, 709 V. Kenosha, 17 Wis. 284 174 V. Smith, 6 N. Y. Sup. Ct. 239 180, 358, 364 V. Wagner, 28 Ind. 462 740, 759 Bondurant v. Bladen, 19 Ind. 160 362, 371, 456, 685, 723 Bonesteel v. Bonesteel, 28 Wis. 245 77, 79 Bonham v. Craig, 84 N. C. 224 642 Bonnell v. Allen, 53 Ind. 130 644 V. Jacobs, 36 Wis. 59 675, 822, 824 Bonney v. Reardin, 6 Bush, 34 493 Booher v. Goldsborougli, 44 Ind. 490 609 Bool V. Watson, 13 Ind. 387 840 Boomer r. Koon, 6 Hun, 645 717, 72-3, 748 Boone Co. v. Keck, 31 Ark. 387 404 Boorman v. Wis., &c. Co., 36 Wis. 207 434 Boos V. Gomber, 24 Wis. 499 295 Booth V. Farmers' & Mechanics' Bk. 1 N. Y. S. C. 45 534, 539, 591, 635, 636 u. Sherwood, 12 Minn. 426 761 Borah v. Archers, 7 Dana, 176 304 Borden v. Gilbert, 13 Wis. 670 502 Bort V. Yaw, 46 Iowa, 323 257 Bosley v. Mattingley, 14 B. Mon. 89 ^ 119 Boston Mills v. EuU, 6 Abb. Pr. n. s. 319 780 Botey V. Griswold, 2 Mont. 447 677 Botkin V. Earl, 6 Wis. 393 287 Botsford V. Burr, 2 Johns. Ch. 409 301 Bottorf V. Wise, 53 Ind. 32 634 Botts V. Patton, 10 B. Mon. 452 411 Bougher v. Scobey, 16 Ind. 151 492 Boughton V. Smith, 26 Barb. 635 187 Bouslog V. Garrett, 39 Ind. 338 594, 668 Bouton V, City of Brooklyn, 15 Barb. 375 245 V. Orr, 51 Iowa, 473 250 Bowdoin v. Coleman, 3 Abb. Pr. 431 164 Bowen ii. Aubrey, 22 Cal. 566 83, 93, 557 v. Emmerson, 3 Oreg. 452 567, 562, 695 Bowers v. Keesecher, 9 Iowa, 422 339, 408, 501 Bowles V. Sacramento Turnp. Co., 6 Cal. 224 542 Bowman v. Sheldon, 5 Sandf 657 609 V. Van Kuren, 29 Wis. 209 628 Boyce v. Brady, 61 Ind. 432 604 V. Brown, 7 Barb. 80 565 TABLE OF CASES CITED. XXXI Boyd V. Blaisdell, 15 Ind. 73 293 V. Foot, 5 Bosw. 110 791 V. Hoyt, 5 Paige, 66 406, 527 V. Schlesinger, 59 N. Y. 301 822 Boyer v. Clark, 3 Neb. 161 838 Boyle V. Robbiiis, 71 N. C. 130 155, 165 Brace v. Burr, 67 N. Y. 237 760 Bradburne v. Botfield, 14 M. & W. 559 228 Bradbury v. Cronise, 46 Cal. 287 675, 677, 690 Bradford u. Toney, 30 Ark. 763 Bradhurst v. Towrisend. 11 Hun, Bradley v. Aldrieh, 40 N. Y. 604 V. Angell, 3 N. Y. 475 V. Parkhurst, 20 Kan. 462 Bradsliaw v. Outram, 13 Yes. 234 Brady v. Ball, 14 Ind. 317 V. Brennan, 25 Minn. 210 355 104 810 104, 686, 644 200 604 396 364 632, 810, 815, 828 V. Chandler, 31 Mo. 28 166 V. Weeks, 3 Barb. 157 322 Braithwaite o. Britain, 1 Kern. 219 358 Brake v. Corning, 19 Mo. 125 840 Braker v. Devereaux, 8 Paige, 513 304 Branch v. Booker, 3 Munf. 43 311 0. Wiseman, 51 Ind. 1 727 Brand v. Boulcott, 3 B. & P. 2.35 229 Brandon v. Allison, 66 N. C. 532 793 Brannaman v. Palmer, Stanton's Code (Ky.), 90 787 Brashear v. Lacey, 3 J. J. Marsh. 93 304 Brassey v. Chalmers, 4 De G. M. & G. 528 Braxton v. State, 25 Ind. 82 304 339, 354, 358 871 312 743 373, 374 753 Bray v. Black, 57 Ind. 417 V. Fromont, 6 Mad. 5 Brazil v. Isham, 12 N. Y. 9 V. Moran, 8 Minn. 236 Brennan v. Ford, 46 Cal. 7 Brett V. First Univ. Soc, 5 Hun, 149 257, 271, 276, 714 Brewer v. Temple, 15 How. Pr. 286 509, 520 Bridge v. Payson, 5 Sandf. 210 340, 3-54, 740, 769 Bridge Co. v. Wyandotte, 10 Kans. 326 Bridges v. Paige, 13 Cal. 640 Bridget v. Hames, 1 Col. 72 Briggs V. Briggs, 15 N. Y. 471 324 722 313 356, 797, 799 V. Daugherty, 48 Ind. 247 1-30 V. Penniman, 8 Cow. 387 . 277 V. Seymour, 17 Wis. 255 790, 833 Brinkerhoff c. Brown, 6 Johns. Ch. 139 406, 408, 436 Briscoe y. Kenrick, 1 Coop. 871 308 British N. Am., B'k of v. Suydam, 6 How. Pr. 379 413, 414 Broderick v. Poillon, 2 E. D. Smith, 554 603 Brodnax v. Groom, 64 N. C. 244 174 Brogden v. Henry, 83 N. C. 274 657 Broiestedt v. South Side E. R., 55 N. Y. 220 96 Brooklyn, &c. Co. v. Pumphrey, 59 Ind. 78 604 Brooks V. Chilton, 6 Cal. 640 712, 729 V. Hager, 5 Cal. 281 475 <;. Hanford, 15 Abb. Pr. 342 185 r. Harris, 42 Ind. 177 213 u. Peck, 38 Barb. 519 442 V. Schwerin, 54 N. Y. 343 289 Brothington v. Downey, 21 Hun, 436 671, 693 Brown v. Allen, 35 Iowa, 306 269 v. Bridges, 31 Iowa, 138 281 V. Brown, 22 La. An. 475 473 V. Brown, 4 Robt. 688 83, 84, 96, 97, 503 V. Buckingham, 11 Abb. Pr. 387 832 V. Champlin, 66 N. Y. 214 586 V. Cherry, 38 How. Pr. 352 216 V. Coble, 76 N. C. 391 522 V. College, 56 Ind. 110 718 V. De Tastet, Jac. 384 312 V. Dowthwaite, 1 Mad. 446 410 «. Freed, 43 Ind. 253 128, 725 V. Gallaudet, 80 N. Y. 413 843 ^. Leigh, 12 Abb. Pr. N. s. 193 628 V. Orr, 29 Cal. 120 712 u. Penfield, 36 N. Y. 473 158 ,.. Perry, 14 Ind. 32 593, 596 u. Phillips, 3 Bush, 656 840 V. Rice, 51 Cal. 489 541 V. Ricketts, 3 Johns. Ch. 563 310, 441, 443 V. Saul, 4 Martin, n. s. 434 473 V. State, 44 Ind. 222 480 V. Taylor, 9 Hun, 156 586 !■. Treat, 1 Hill, 225 634 V. Volkeniug, 64 N. Y. 76 400, 403 0. Weatherby, 12 Sim. 6 358 ^. Woods, 48 Mo. 330 344, 345 Browning v. Marvin, 22 Hun, 547 152 Bruce v. Kelly, 5 Hun, 229 96 Bruck V. Tucker, 42 Cal. 346 113, 118, 686, 724 Bruguer v. U. S., 1 Dacota, 5 613 Brumbee v. Brown, 71 N. C. 513 837 Brumskill v. James, 11 N. Y. 294 343, 355 Brundage v. Domestic & For. Miss. Soc, 60 Barb. 204 394 Bryant v. Erskine, 55 Me. 153 437 Buckingham v. Waters, 14 Cal. 146 492 Buckles V. Lambert, 4 Mete. (Ky.) 330 364 Buckley v. Carlisle, 2 Cal. 420 104, 130 Buckmaster v. Kelley, 15 Fla. 180 541 Bucknall v. Story, 36 Cal. 67 174 Bucknam v. Brett, 35 Barb. 596 271 Buckner v. Ries, 34 Mo. 357 131 Budd V. Bingham, 18 Barb. 494 541 Bufldington v. Davis, 6 How. Pr. 401 555 Buffum V. Chadwick, 8 Mass. 103 172 Bugbee v. Sargent, 23 Me. 271 408 Buhne v. Chisai, 48 Cal. 467 128 xxxu TABLE OF CASES CITED. Buhne v. Corbett, 43 Cal. 264 760, 761 Buie V. Mech. Assn., 74 N. C. 117 345 Bull V. Read, 13 Gratt. 78 174 BuUard v. Johnson, 65 N. C. 436 628 V. Raynor, 30 N. Y. 196 187 V. Sherwood, 85 N. Y. 253 , 644 BqIHs v. Montgomery, 50 N. Y. 352 364 Bunting v. Foy, 66 N. 0. 193 434 Burbank v. Beach, 15 Barb. 326 221 V. Taylor, 23 La. An. 751 473 Burdsall v. Waggoner, 4 Cal. 256 610 Burgoyne v. Ohio Life Ins. Co., 5 Ohio St. 586 359, 454-, 455 Burhans v. Burhans, 2 Barb. Ch. 398 428 Burhop V. Milwaukee, 18 Wis. 431 340 Burke v. Thorn, 44 Barb. 363 771, 788 Burkham v. Beaver, 17 Ind. 367 390, 395 Burlington, &c. R. R. v. Board of Comm'rs, 7 Neb. 33 733 Burnap v. Cook, 16 Iowa, 149 380, 403, 437 Burnett v. Stearns, 33 Cal. 473 578 Burney v. Spear, 17 Ga. 228 313 Burns v. Iowa Homestead Co., 48 Iowa, 279 614 Burnside v. Matthews, 54 N. Y. 78 751 V. Wayman, 49 Mo. 356 636 Burr V. Beers, 24 N. Y. 178 168, 169 u. Woodrow, 1 Bush, 602 534 Burrows v. Holderman, 31 Ind. 412 493 Burt V. Wilson, 28 Cal. 632 536 Burton u. Anderson, Stanton's (Ky.) Code, 34 320 V. Wilkes, 66 N. C. 604 824 Busenius v. Coffee, 14 Cal. 91 678 Bush V. Brown, 49 Ind. 573 727, 732 V. Groom, 9 Bush, 675 268 V. Hicks, 60 N. Y. 298 424 V. Lathrop, 22 N. Y. 535 189, 190, 191 Bushey v. Reynolds, 31 Ark. 657 600, 657 Butler V. Dunham, 27 111. 474 174 V. Edgerton, 15 Ind. 15 685, 723 V. Lee, 33 How. Pr. R. 251 81 V. N. Y. & Erie R. R., 22 Barb. 110 179, 182 V. Titus, 13 Wis. 429 760, 824, 826 V. Wentworth, 9 How. Pr. 282 760 Butt V. Cameron, 53 Barb. 642 538 Button V. McCauIey, 38 Barb. 413 714, 747 Butts V. Collins, 13 Wend. 139 636 V. Genung, 5 Paige, 254 431 Byers v. Rodabaugh, 17 Iowa, 53 339 Byington ;'. Woods, 13 Iowa, 17 537 Byrne v. Fitzhugh, 1 C. M. & R. 613 227 Byxbie v. Wood, 24 N. Y. 610 179, 183, 186, 619, 624, 634, 637 Cabell V. Vaughan, 1 Wms. Saund. 291 331 Cable V. St Louis, &c. R. W. Co., 21 Mo. 133 165 Cadiz V. Majors, 33 Cal. 288 113 Cadwood's Adm'r v. Lee, 32 Ind. 44 728 Caflin V. Taussig, 7 Hun, 223 677, 580 Cagger v. Lansing, 64 N. Y. 417 349 Cahill V. Palmer, 17 Abb. Pr. 196 609 Cahoon v. Bk. of Utica, 7 N. Y. 486 96, 500 Cain V. Hunt, 41 Ind. 466 685 Cairns v. O'Bleness, 40 Wis. 469 219, 358 Calderwood v. Pyser, 31 Cal. 333 287 Caldwell v. Auger, 4 Minn. 217 751 V. Bruggerman, 4 Minn. 270 669, 709 Caleb i>. Morgan, 83 N. C. 211 822 Calhoun v. Hallen, 25 Hun, 155 688 California, Bank of v. Collins, 5 Hun, 209 186 Cal. Steam Nav. Co. v. Wright, 8 Cal. 585 751 Calkins v. Smith, 48 N. Y. 614 258 Callaghan v. McMahan, 33 Mo. Ill 519 Callanan v. Edwards, 32 N. Y. 483 189 Calverley v. Phelp, 6 Mad. 229 313, 402 Calvin v. Duncan, 12 Bush, 101 686 V. Woollen, 66 Ind. 464 481, 608 Calvo V. Davies, 73 N. Y. 211 604 Camp V. McGillicuddy, 10 Iowa, 201 463 V. Pulver, 5 Barb. 91 636 Campbell v. Fox, 11 Iowa, 318 840 V. Galbreath, 12 Bush, 459 288 -. Genet, 2 Hilt. 290 790 V. Mackay, 1 Myl. & Cr. 603 528 V. Perkins, 8 N. Y. 4.30 634 V. Routt, 42 Ind. 410 762, 786, 788 V. Stakes, 2 Wend. 137 634 Canefox v. Anderson, 22 Mo. 347 153 Cannon u. McManus, 17 Mo. 345 759 Capell V. Powell, 17 C. B. n. s. 743 374 Capuro V. Builders' Ins. Co., 39 Cal. 123 > 731 Carman v. Plass, 23 N. Y. 286 452, 456, 457 Carmien v. Whitaker, 36 Ind. 509 344 Carney v. La Crosse, &c. R. R., 15 Wis. 603 340, 434 Carpenter v. Brenham, 50 Cal. 549 644 V. Leonard, 5 Minn. 156 782, 790 «. Manhattan, &c. Co., 22 Hun, 49 810 831, 832 V. Mann, 17 Wis. 165 173 t:. Miles, 17 B. Mon. 598 160, 163 V. O'Dougherty, 50 N. Y. 660 376 0. Stilwell, 3 Abb. Pr. 489 633 V. Tatro, 36 Wis. 297 152, 288 Carpentier v. Williamson, 25 Cal. 161 393 Carr v. Collins, 27 Ind. 306 464 V. Waldron, 44 Mo. 393 340, 435 Carrere v. SpofEord, 15 Abb. Pr. n. s. 47 271 Carrico v. Tomlinson, 17 Mo. 499 81 Carrillo v. McPhillips, 55 Cal. 130 223 Carroll i'. Paul, 16 Mo. 226 593, 696 Carswell v. Niville, 12 How, Pr. 445 467 Carter v. Mills, 30 Mo. 4.32 317, 467, 468 V. Sanders, 2 Drew. 248 318 V. Zeublin, 68 Ind. 436 641 TABLE OF CASES CITED. XXX 111 Carver v. Shelley, 17 Kan. 472 836 C-'ary v. Allen, 39 Wis. 481 587 V. Wheeler, 14 Wis. 281 401, 493, 602 Casad v. HoldriOge, 50 Ind. 529 727, 748 ^. Hughes, 27 Ind. 141 204 Case V. Carroll, 35 N. Y. 385 249, 821 Cashman v. Wood, 6 Hun, 520 222, 282 Cassiday v. McDaniel, 8 B. Mon. 519 301, 411 Cassidy v. Caton, 47 Iowa, 22 651 Cassin v. Delaney, 38 N. Y. 178 835, 374 Castle V. Houston, 19 Kan. 417 608 Castner v. Sumner, 2 Minn. 44 161 Caswell V. West, 3 N. Y. Sup. Ct. 388 99, 180 Catlin V. Gunter, 1 Duer, 253 714, 747 V. Pedriok, 17 Wis. 88 639 V. Wheeler, 49 Wis. 607 282 Caulfield v. Sanders, 17 Cal. 669 678 Cavalli V. Allen, 57 N. Y. 608 117, 783, 804, 807 Cave V. Crapto, 53 Cal. 125 743 Cavender v. Smith, 8 Iowa, 360 ' 351 Cecil V. Smith, 81 N. C. 285 378 Central Bank v. Knowlton, 12 Wis. 624 727 Centre Turnpike Co. v. Smith, 12 Vt. 217 636 Certwall v. Hoyt, 6 Hun, 675 282 Cliace V. Peck, 21 N. Y. 581 116 Chadwick v. Maden, 9 Hare, 188 317, 422 Chamballe v. McKenzie, 31 Ark. 155 613, 632 Chamberlain v. Burlington, 19 Iowa, 395 174 V. Plainsville, &c. R. R., 15 Ohio St. 225 663 V. Williamson, 2 M. & S. 408 180, 181 Chambers v. Goldwin, 9 Ves. 269 4.36 V. Lewis, 2 Hilt. 591 631, 632, 829 V. Nicholson, 30 Ind. 349 390, 400 Chamboret v. Cagney, 35 N. Y. Sup. Ct. 474 290 Champion v. Brown, 6 Johns. Ch. 402 421 Chance v. Indianapolis, &c. Road Co., 32 Ind. 472 727 V. Isaacs, 5 Paige, 592 200 Chancellor v. Morecraft, 11 Beav. 262 314, 414 Chapman v. Callahan, 66 Mo. 299 434 V. Hunt, 1 McCarter, 149 307 V. Plummer, 36 Wis. 262 180, 198, 836, 837 V. West, 17 N. Y. 125 422 Chappell V. Rees, 1 De G. M. & G. 393 437 Charboneau v. Henni, 24 Wis. 2-50 371 Charles ;;. Haskins, 11 Iowa, 329 153, 164 Charlestown School District v. Hay, 74 Ind. 127 608 Charlotte, Bank of v. Britton, 66 N. C. 365 748 Chariton v. Tardy, 28 Ind. 452 804, 842 Chase v. Abbott, 20 Iowa, 154 379, 391, 399, 401 V. Long, 44 Ind. 427 751 Chase i'. Vanderbilt, 62 N. Y. 807 416 Chatfleld v. Frost. 3 N. Y. S. C. 357 612 Chautauqua v. GifEord, 8 Hun, 152 219 Chautauqua Co. Bank v. White, 6 N. Y. 236 501 Cheely v. Wells, 33 Mo. 106 493, 525 Cheeseman o. Wiggins, 1 N. Y. Sup. Ct. 595 310 Cheltenham Fire-brick Co. v. Cook, 44 Mo. 29 215 Cheshire Iron Works v. Gay, 3 Gray, 531 319 Chester v. Dickerson, 52 Barb. 849 363 Chesterson v. Munson, 27 Minn. 498 608 Chicago, &c. R. R. v. N. W. Union P. Co., 38 Iowa, 377 657, 581, 642, 68.3, 685, 717 Chilcote V. Conley, 36 Ohio St. 545 371 Childers v. Verner, 12 S. C. 1 600 Childs V. Hyde, 10 Iowa, 294 357 Chiles V. Drake, 2 Mete. 146 493 Chime v. Trustees, 32 Ohio St. 236 85 Chipman v. Montgomery, 63 N. Y. 221 302, 817 Cholmondeley v. Clinton, 2 Jac. & W. 134 308, 318, 437 Christy v. Dana, 42 Cal. 174 690 Chunot V. Larson, 43 Wis. 536 613 Church V. Smith, 39 Wis. 492 306, 894, 434 Churchill v. Churchill, 9 How. Pr. 552 640 V. Trapp, 3 Abb. Pr. 306 454 Cicero, &c. Co. v. Craighead, 28 Ind. 274 727 Cincinnati, &c. R. R. v. Chester, 57 Ind. 297 540 V. Washburn, 25 Ind. 259 644 Citizen's Bk. u. Closson, 29 Ohio St. 78 760 Claflin V. Jaroslanski, 64 Barb. 468 729 V. Ostrom, 54 N. Y. 581 167, 169 u. Reese, 64 Iowa, 544 692 V. Taussig, 7 Hun, 228 634, 652 V. Van Wagoner, 32 Mo. 252 287 Clague V. Hodgson, 16 Minn. 329 609 Clapp V. Cunningham, 50 Iowa, 307 651 V. Phelps, 19 La. An. 461 473 V. Preston, 16 Wis. 643 362, 455 V. Wright, 21 Hun, 240 836 Clarissy v. Mut. Fire Dept., 7 Abb. Pr. (n. s.) 352 220 Clark I'. Pates, 1 Dacota, 42 140, 566, 562 V. Boyer, 32 Ohio St. 299 374, 745 V. Cable, 21 Mo. 223 270, 274 V. Clark, 5 Hun, 840 732 V. Fensky, 3 Kan. 389 593 V. Finnell, 16 B. Mon. 337 689, 840 V. Han. & St. Jo. R. R.,86 Mo. 202 491, 635 V. Harwood, 8 How. Pr. 470 609 V. Huber, 25 Cal. 593 118, 761 V. Langworthy, 12 Wis. 441 625 V. Lineberger, 44 Ind. 223 490, 576 V. Lockwood, 21 Cal. 222 113, 128 V. Miller, 4 Wend. 628 228 V. Reyburn, 8 Wall. 318 402 XXXIV TABLE OF CASES CITED. Clark V. Slanton, 24, Minn. 232 463 V. Story, 29 Barb. 295 839 V. Supervisors, 27 111. 305 174 Clarkson v. Carter, 3 Cow. 85 228 V. De Peyster, 3 Paige, 320 319 Claussen v. La Franz, 4 Greene, 224 77 Clay V. Edgerton, 19 Ohio St. 649 584, 600, 602, 605 Clay Co. V. Simonsen, 1 Dacota, 403 556, 562, 576, 580 Clayes v. Hooker, 4 Hun, 231 613, 732 Clayton v. School District, 20 Kans. 206 727 Clegg V. Rowland, L. R. 3 Eq. 368 410 Cleghorn v. Postlewaite, 43 111. 428 174 Clemens v. Clemens, 87 N. Y. 59 426, 428 Clemons v. Elder, 9 Iowa, 272 414, 433 Cleveland v. Barrows, 59 Barb. 364 635 V. Comstock, 22 La. An. 597 473 Clifeord V. Dam, 81 N. Y. 62 745 Clift V. Northrup, 6 Lans. 330 839 Cline V. Cline, 3 Oreg. 355 557, 559 Clink V. Thurston, 47 Cal. 21 682, 751 Clinton v. Eddy, 1 Lans. 61 780, 826 Cloon V. City Ins. Co., 1 Handy, 32 354 Clough V. Thomas, 53 Ind. 24 371 Coakley v. Chamberlain, 8 Abb. Pr. N. 8. 37 343, 352 Coates V. Day, 9 Mo. 31 5 405 Coats V. McKee, 22 Ind. 223 379 Cobb V. Depue, 22 La. An. 244 473 t-. Dows, 9 Barb. 2.30 538 «. 111. Cent. R. R., 38 Iowa, 601 490, 493 V. Smfth, 38 Wis. 21 364, 367 Coburn v. Smart, 53 Cal. 742 476 Cock V. Evans, 9 Yerg. 287 421 Cookburn v. Thompson, 16 Ves. 328 310, 443,447, 530 Codd V. Rathbone, 19 N. Y. 37 752 Cody V. Bemis, 40 Wis. 666 613 Coe V. Beckwith, 10 Abb. Pr. 296 443 V. Lindley, -32 Iowa, 437 848 Coffin !;. McLean, 80 N. Y. 560 789 Coffman v. Putnam Co., 24 Ind. 509 174 Coghill V. Marks, 29 Cal. 673 475 Cogswell V. Murphy, 46 Iowa, 44 345, 365, 522 Cohen o. Cont. L. Ins. Co., 69 N. Y. 300 577, 580 Cole V. Reynolds, 18 N. Y. 74 77, 83, 84, 24.5, 275, 371 V. Turner, 6 Mod. 149 230 Colegrove v. N. Y., &c. R. R., 20 N. Y. 492 364 Coles V. Forrest, 10 Beav. 552 402 V. Soulsby, 21 Cal. 47 693, 752 Colarove v. Koonce, 76 N. C. 363 349 Coliart V. Fisk, 38 Wis. 238 693 CoUett V. Hover, 1 Coll. 227 317 I.. Wollaston, 3 Bro. C. C. 228 411 Collier v. Erwin, 3 Mont. 142 641, 828 Collins w. Butler, 14 Cal. 223 840 V. Cowan, 52 Wis. 634 499 V. Groseclose, 40 Ind. 414 840 Collins u. Rogers, 63 Mo. 515 115 Colorado Cent. R. li. v. MoUauden, 4 Col. 154 685 Colton V. Hanchett, 13 III. 615 174 Colton Co. V. Raynor, 57 Cal. 588 652 Coltzhauser v. Simon, 47 Wis. 103 657 Col well V. N. Y. & E. R. R., 9 How. Pr. 311 538 Combes v. Chandler, 33 Ohio St. 178 190 Combs V. Watson, 32 Ohio St. 228 753 Comer v. Knowles, 17 Kan. 436 586 Comins v. Supervisors, 3 N. Y. Sup. Ct. 296 174 Commercial Bank v. Colt, 15 Barb. 506 189 Commissioners v. Blair, 76 N. C. 136 629 V. Lafayette, &c. R. R., 50 Ind. 85 325, 845 V. Lineberger, 3 Mont. 31 219 V. Markle, 46 Ind. 96 174 V. McClintock, 51 Ind. 325 174 V. Slatter, 52 Ind. 171 288 V. Swain, 5 Kan. 376 355, 361 V. Templeton, 51 Ind. 266 174 V. Verbaug, 63 Ind. 107 595 Commonwealth v. Cook, 8 B ush, 220 576, 600 V. Todd, 9 Bush, 708 792 Compton V. Davidson, 31 Ind. 62 169 Comstock V. Hier, 73 N. Y. 269 632 Conant v. Frary, 49 Ind. 530 467 Conaughty v. Nichols, 42 N. Y. 83 140, 619, 621, 624 Conaway v. Carpenter, 58 Ind. 477 804 Cone V. Niagara Fire Ins. Co., 60 N. Y. 619 96, 100, 168, 169 Conger v. Parker, 29 Ind. 380 111, 668 Conklin v. Bishop, 3 Duer, 646 468 Conlin v. Cantrell, 64 N. Y. 217 377 Conn. Fire Ins. Co. v. Erie R. R., 73 N. Y. 399 173 Conn. Life Ins. Co. v. McCormick, 45 Cal. 580 731 Conn. Mut. Ins. Co. v. Cross, 18 Wis. 109 502 Conner v. Winton, 7 Ind. 523 814, 824, 828 Connor v. Board of Education, 10 Minn. 439 500 V. Paul, 12 Bush, 144 222 Conro o. Port Henry Iron Co., 12 Barb. 27 319 Conross v. Meir, 2 E. D. Smith, 314 642 Considerant v. Brisbane, 22 N. Y. 389 212 214 Converse v. Symmes, 10 Mass. 377 230 Conway v. Smith, 13 Wis. 125 838 V. Wharton, 13 Minn. 158 760 Conyngham v. Smith, 16 Iowa, 471 154, 162, 170, 837 Cook V. Finch, 19 Minn. 407 760 V. Horwitz, 10 Hun, 586 522 V. Jenkins, 79 N. Y. 575 804, 822 V. Klink, 8 Cal. 347 295 V. Lovell, 11 Iowa, 81 840 TABLE OF CASES CITED. XXXV Cook V. Putnam Co., 70 Mo. 668 580 t>. Smitli, 64 Iowa, 636 675 V. Soule, 56 N. Y. 420 823 ti. Wiu-dens, 5 Hun, 293 265 Cookingliara v. Lasher, 2 Keyes, 454 357 Cooley V. Brown, 30 Iowa, 470 314 V. Howe Mac. Co., 53 N. Y. 620 167 Coolidge V. Parris, 8 Ohio St. 594 378, ■ 381 Cooper V. French, 52 Iowa, 531 577, 609 Cope V. Parry, 2 Jac. & W. 538 301, 317 Copis «. Middleton, 2 Mad. 410 406 Coppard v. Allen, 2 De G. J. & S. 173 411, 414 Corby v. Weddle, 57 Mo. 452 723 Corcoran v. Doll, 32 Cal. 82 287 Cord V. Hirsch, 17 Wis. 403 340, 389, 392 Corey v. Rice, 4 Lans. 141 278 Corn. Ex. Ins. Co. u. Babeock, 42 N. Y. 613 376 Cornell v. Dakin, 38 N. Y. 253 752 u. Radway, 22 Wis. 260 409 Corning v. Corning, 6 N. Y. 97 660 V. Smith, 6 N. Y. 82 402 Cornish v. Gest, 2 Cox, 27 304 Corpenny v. Sedalia, 57 Mo. 88 602, 605 Corwin v. Ward, 35 Cal. 195 840 Coryell v. Cain, 16 Cal. 567 557 Cosley V. WicklifEe, 7 B. Mon. 120 319, 385 Coster V. Brown, 23 Cal. 142 475 V. Mayor, 43 N. Y. 399 167, 169 V. N. Y. & E. R. R., 3 Abb. Pr. 332 267, Cottle V. Cole, 20 Iowa, 481 153, 159, 161, 170, 470, 837 Cottrell V. Cramer, 40 Wis. 556 657 Coiirsen v. Hamlin, 2 Duer, 513 802 Covert V. Hughes, 8 Hun, 305 377 Covington, &c;. R. K. v. Bowler, 9 Bush, 468 301, 313 Cowin V. Toole, 31 Iowa, 518 557, 580 Cowles V. Cowles, 9 How. Pr. 361 796 V. Warner, 22 Minn. 449 614 Cox V. Bird, 65 Ind. 277 250 V. West. Pac. R. R., 47 Cal. 89 492, 493 Coy V. Downie, 14 Fla. 544 842 Craft V. Commissioners, 5 Kan. 518 174 Craig V. Heis, 30 Ohio St. 550 822 Cramer v. Benton, 60 Barb. 216 111 V. Morton, 2 MoUoy, 108 314 Cranch v. Gridley, 6 Hill, 2-50 185 Crane i'. Hardman, 4 E. D. Smith, 448 745 V. Morse, 49 Wis. 368 676 V. Turner, 67 N. Y. 437 170 Crary v. Goodman, 12 N. Y. 266 83, 86, 116 Crawford v. Adams, Stanton's Code (Ky.),91 760 V. Furlong, 21 Kan. 698 587 V. Gunn, 35 Iowa, 543 263 V. Neal, 56 Cal. 321 223, 587 Crawfordsville v. Barr, 65 Ind. 367 484 Creager v. Walker, 7 Bush, 1 106, 117 Creecy v. Pearce, 69 N. C. 67 401 Creed v. Hartman, 29 N. Y. 591 363 Creighton v. Newton, 5 Neb. 100 727 Crews V. Lackland, 67 Mo. 619 344 Crocker v. Craig, 46 Me. 827 318 Croft V. Waterton, 13 Sim. 653 302 Crogan v. Spence, 58 Cal. 15 403 Cropsey v. Sweeney, 27 Barb. 810 77, 688 Crosby v. Davis, 9 Iowa, 98 422 Crosier v. McLaughlin, 1 Nev. 348 83, 138 Cross V. Hulett, 53 Mo. 397 266 V. Truesdale, 28 Ind. 44 167 Croumger v. Parze, 48 Wis. 229 822 Crow V. Vance, 4 Iowa, 434 392 Cruger v. McLaury, 41 N. Y. 219 263, 264 Cudlipp V. Whipple, 4 Duer, 610 593, 603 Cuff 1). Dorland, 55 Barb. 481 102 Cullen u. Queensbury, 1 Bro. C. C. 101 809, 441 Cumings v. Morris, 3 Bosw. 560 791 Cummins v. Barkalow, 4 Keyes, 514 218 Cummings v. Long, 25 Minn. 3.37 614 c. Morris, 25 N. Y. 625 162, 245, 802 V. Vorce, 3 Hill, 282 636 Cunningham v. Pell, 5 Paige, 607 314, 412 Curd V. Dodds, 6 Bush (Ky.), 681 373, 374 V. Lackland, 43 Mo. 139 89, 98, 504 Curran v. Curran, 40 Ind. 473 594, 668, 840 Currie v. Cowles, 6 Bosw. 453 780, 842 V. Fowler, 5 J. J. Marsh. 145 578 Curry v. Keyser, 30 Ind. 214 7.31 i;. Roundtree, 61 Cal. 184 .344 Curtis V. Barnes, 30 Barb. 225 838 u. Curtis, 3 Louis. 513 473 u. Del., &c. R. R., 74 N. Y. 116 289, 295 V. Herrick, 14 Cal. 117 223 J). Mohr, 18 Wis. 615 161 V. Moore, 15 Wis. 1.34 641 V. Richards, 9 Cal. 33 690, 692, 693 V. Sprague, 51 Cal. 239 158 Cushman ^. Henry, 75 N. Y. 103 377 V. Jewell, 7 Hun, 525 632 Cutts V. Guild, 57 N. Y. 229 190, 192 V. Thodey, 13 Sim. 206 317 Cythe V. Fountain, 51 Barb. 186 117 D. Daby v. Ericsson, 45 N. Y. 786 271 Dahoney v. Hall, 20 Ind. 264 422 Dail V. Harper, 83 N. C. 4 657 Dailey v. Houston, 58 Mo. 361 250, 293, 374, 523, 524, 613 Daily v. Litchfield, 10 Mich. 29 420 Diiking V. Whimper, 26 Beav. 568 316 Dale V. Masters, Stanton's Code (Ky.), 97 824, 826 XXXVl TABLE OF CASES CITED. Dale V. Thomas, 67 Ind. 570 Dalrymple v. Hillenbrand, 62 N. Y. 5 V. Hunt, 5 Hun, 111 727 Daly V. Burchell, 13 Abb. Pr. n. s. 264 V. Nat. Life Ins. Co., 64 Ind. 1 t). Proetz, 20 Minn. 411 Dambman v. Scliulting, 4 Hun, 50 V. White, 48 Cal. 439 Daniels v. Clark, 38 Iowa, 556 Danjean v. Blaeketer, 13 La. An. 595 Dann «. Gibson, 9 Neb. 513 Darby v. Callaghan, 16 N. Y. 71 Dare v. Allen, 1 Green, Ch. 288 Darlington v. Effey, 13 Iowa, 177 396, Dart V. McQuilty, 6 Ind. 391 Darwent v. Walton, 2 Atk. 510 Davanay v. Eggenhoff, 43 Cal. 395 Davenport v. Murray, 68 Mo. 198 V. Short, 17 Minn. 24 V. Turpin, 43 Cal. 597 393, David V. Frowd, 1 Myl. & K. 200 Davidson v. Elms, 67 N. C. 228 V. Remington, 12 How. Pr. 310 V. Smith, 20 Iowa, 466 Davies v. Davies, 11 Eng. L. & Eq. R. 199 V. Williams, 1 Sim. 5 Davis V. Beehsiein, 69 N. Y. 440 190, 0. C. & W. W. R. R., 46 Iowa, 389 V. Davis, 26 Cal. 23 V. Eppinger, 18 Cal. 378 V. Hoppock, 6 Duer, 254 V. Lambertson, 56 Barb. 480 96; V. Mason, 3 Orcg. 154 V. Mayor, 2 Duer, 663 B. Milburn, 3 Iowa, 163 V. Morris, 36 N. Y. 569 88, 102, V. Neligii, 7 Neb. 84 V. Netware, 13 Nev. 421 V. Payne, 45 Iowa, 194 V. Reynolds, 5 Hun, 651 V. Shuler, 14 Fla. 438 V. Stover, 58 N. Y. 473 793, V. Sutton, 23 Minn. 307 V. Toulmin, 77 N. Y. 280 777, .;. Van Buren, 72 N. Y. 587 V. Warfield, 38 Ind. 461 Davison v. Associates, 71 N. Y. 333 Davoue v. Fanning, 4 Johns. Ch. 199 Dawley v. Brown, 9 Hun, 461 Dawson v. Graham, 48 Iowa, 378 Day i;. Hammond, 57 N. Y. 479 V. Patterson, 18 Ind. 114 V. Pool, 52 N. Y. 416 V. Vallette, 25 Ind. 42 639, V. Wamsley, 33 Ind. 145 683, 685, DayhuflF v. Dayhuffs Adm'r, 27 Ind. 158 Dayton v. Wilkes, 5 Bosw. 655 604 748 ,748 394 845 748 652 580 469 473 641 289 314 392, 403 465 310 712, 742 499 753 725 447 218 780, 791 296 310 314 250 609 751 475 723 ,97, 503 596 463 840 106 198 798 651 158 685 840 198 789 358 723 106 310 740 644 752 167 824 755 723 840 467 Dayton Ins. Co. v. Kelly, 24 Ohio St. 345 643 Dean v. Chamberlin, 6 Duer, 691 273 V. English, 18 B. Mon. 135 164, 280, 490 V. Leonard, 9 Minn. 190 676 V. Yates, 22 Ohio St. 388 617, 622 De Baun v. Van Wagoner, 56 Mo. 347 378 Debolt V. Carter, 31 Ind. 355 251, 255, 257 Decker v. Gaylord, 8 Hun, 110 456 V. Mathews, 12 N. Y. 313 609 V. Trilling, 24 Wis. 610 452, 455 Deery v. MuClintock, 31 Wis. 196 103 De Forest v. Holum, 38 Wis. 516 394, 396 De Golls V. Ward, 3 P. Wms. 311 315 De Graw v. Elmore, 50 N. Y. 1 557, 561, 614, 617, 622 De Houghton v. Money, L. R. 2 Ch. App. 164 316 De Johnson v. Sepulbeda, 5 Cal. 149 265 Delabere v. Norwood, 3 Swanst. 144 400 De la Guerra v. Newhall, 55 Cal. 21 588, De la Mar w. Hurd, 4 Col. 442 Delancy v. Murphy, 24 Hun, 503 Delaplaine t. Lewis, 19 Wis. 476 591 643 463 389, .395 614 V. Turnley, 45 Wis. 31 De la Vergne v. Evertson, 1 Paige, 181 321 De Leyer v. Michaels, 5 Abb. Pr. 203 788, 807 Denning v. Kemp, 4 Sandf. 147 769 Dennis v. Belt, 30 Cal. 247 824, 826 Denten v. Logan, 3 Mete. (Ky.) 434 749 Denton v. Nanny, 8 Barb. 624 388 De Puy V. Strong, 37 N. Y. 372 250, 263 Derby v. Gallup, 5 Minn. 119 760 De Ridder v. Schermerhorn, 10 Barb. 638 362, 456 Derr v. Stubbs, 83 N. C. 539 843 Desmond v. Brown, 33 Iowa, 13 739 Despard i: Walbridge, 15 N. Y. 374 119 De Uprey v. De Uprey, 27 Cal. 329 380, 430 Devall V. Boatner, 2 La. An. 271 473 Devaynes v. Robinson, 24 Beav. 86 414 Devlin v. Mayor, 63 N. Y. 8 152, 180 Devol V. Barnes, 7 Hun, 342 158 0. Mcintosh, 23 Ind. 529 167, 169 Devries v. Warren, 82 N. C. 356 828 Dewey v. Hoag, 15 Barb. 365 111 V. Lambier, 7 Cal. 347 265 V. Moyer, 9 Hun, 473 301, 320, 407, 413 De Witt V. Chandler, 11 Abb. Pr. 459 221 V. Hayes, 2 Cal. 463 77, 79, 83 Dezengremel v. Dczengremel, 24 Hun, 457 753 Dias V. Bouchaud, 10 Paige, 445 411 V. Merle, 4 Paige, 259 403, 437 Dice r. Morris, 32 Ind. 283 846 TABLE OF CASES CITED. XXXVll Dickens v. N. Y. C. K. E., 13 How. Pr. 228 526 Dickinson v. Vanderpoel, 6 N. Y. Sup. Ct. 168 250 Dickson v. Cole, 34 Wis. 621 77, 88, 103, 642 Diddell v. Diddell, 3 Abb. Pr. 167 806 Dietrich v. Koch, 35 Wis. 618 783 DUlaye v. Niles, 4 Abb. Pr. 253 79] V. Parks, 31 Barb. 132 250, 751 Dillon V. Bates, 89 Mo. 292 410, 414 Dimmock v. Bixby, 20 Pick. 368 528 Dininny v. Fay, 38 Barb. 18 182 Dist. Townp. v. Directors, 52 Iowa, 287 604 V. Dist. Townp. 44 Iowa, 512 344, 345 Dixw. Akers, .SOInd. 431 218 V. Briggs, 9 Paige, 595 406 Dixey v. Pollock, 8 Cal. 570 475 Doan V. Holly, 26 Mo. 186 502 Dob V. Halsey, 16 Julins. 34 230 Dobson V. Duckpond, &c. Ass'n, 42 Ind. 312 480 V. Pearce, 12 N. Y. 156 83, 110, 112, 115, 120 Dodd V. Denney, 6 Oreg. 156 613 Dodge V. Dunham, 41 Ind. 186 668 Dole V. Burceigh, 1 Dacota, 227 642, 676 Dolph V. Bice, 21 Wis. 590 790 Donahue v. Prosser, 10 Iowa, 276 810 Donald v. Batlier, 16 Beav. 26 302 Donellan v. Hardy, 57 Ind. 393 608 Donnan u. Intelligencer Co., 70 Mo. 168 250 Donnell v. Walsh, 33 N. Y. 43 250, 267 Donovan v. Dunning, 69 Mo. 436 499 Doody V. Higgins, 9 Hare, Ap. 32 314 Doolittle V. Greene, 32 Iowa, 123 600, 679 173 229 587 604 V. Supervisors, 18 N. Y. 155 Doremus v. Selden, 19 Johns. 213 Dorsett v. Adams, 50 Ind. 129 Dorsey v. Hall, 7 Neb. 460 0. Keese, 14 B. Mon. 157 119, 840 Dorwin v. Potter, 5 Denio, 306 769 Doughty V. Atlantic R. K., 78 N. C. 22 538 Douglas V. Bishop, 27 Iowa, 214 390, 395 V. First Nat. B'k, 17 Minn. 35 838 V. Haberstro, 25 Hun, 262 121, 733 V. Horsfall, 2 S. & S. 184 313 Douglass V. Placerville, 18 Cal. 643 174 Dounce v. Dow, 57 N. Y. 16 823, 824 Dousman v. Wis., &c. Min. Co., 40 Wis. 418 325, 443 Douthitt V. Smith, 69 Ind. 463 810 Downer v. Smith, 24 Cal. 114 118 Downey v. Dillon, 52 Ind. 442 587 Downing v. Gibson, 53 Iowa, 517 198 Downs V. McCombs, 16 Ind. 211 728 Dows V. Cliicago, 11 Wall. 108 174 V. Kidder, 84 N. Y. 121 463 Doyle V. Franklin, 48 Cal. 537 642 V. Phcenix Ins. Co., 44 Cal. 264 578, 601, 607 Dragoo v. Levi, 2 Duv. 520 493, 509, 520 Drais y. Hogan, 50 Cal. 121 604 Drake v. Cockroft,4 E. D. Smith, 34 810, 828 V. Phillips, 40 111. 388 174 Draper v. Lord Clarendon, 2 Vern. 518 399 V. Stouvenel, 35 N. Y. 507 289 V. Van Horn, 16 Ind. 155 432 Drew V. Person, 22 Wis. 651 105 V. Harman, 5 Price, 319 436 Drury o. Clark, 16 How. Pr. 424 388, 389, 395 Duanesburgh v. Jenkins, 46 Barb. 294 220 Dubbers v. Joux, 51 Cal. 153 463 Dubois V. Hermance, 56 N. Y. 673 723, 731, 749 Dubroca v. Dubroca, 3 La. An. 331 473 Duck V. Abbott, 24 Ind. 349 130, 418 Dudley v. Scranton, 57 N. Y. 424 823 Duffy V. Duncan, 35 N. Y. 187 792 V. O'Donovan, 46 N. Y. 227 117 Duncan v. Berlin, 5 Robt- 457 356 V. Stanton, 30 Barb. 533 791 V. Whedbee, 4 Col. 143 222 V. Wickliffe, 4 Scam. 452 421 Duncombe v. Hansley, 3 P. Wms. 333 396 Dunderdale v. Grymes, 16 How. Pr. 195 249 Dunham v. Bower, 77 N. Y. 76 718 V. Gillis, 8 Mass. 460 228 Dunlap V. Snyder, 17 Barb. 561 738 Dunn V. Hannibal, &c. R. R., 68 Mo. 268 250 V. Remington, 9 Neb. 82 556, 562 Dunning v. Leavitt, 85 N. Y. 30 169, 199 V. Ocean Nat. Bk., 61 N. Y. 497 173, 282 V. Rumbaugh, 36 Iowa, 566 674, 723 V. Thomas, 11 How. Pr. 281 640 Du Pont V. Davis, 35 Wis. 634 106, 113, 803 Durant v. Gardner, 10 Abb. Pr. 445 526 Durton ;;. Kelly's Adm'r, 22 Ind. 183 840 Duress i'. Horneffer, 15 Wis. 195 2K8 Durgin v. Ireland, 14 N. Y. 322 155, 161 Durham v. Bischof, 47 Ind. 211 371, 424 V. Hall, 67 Ind. 123 276 Durkee v. City Ba t, 13 Wis. 210 639, 641 Durland v. Piteairn, 51 Ind. 426 587 Durnford v. Weaver, 84 N. Y. 445 613 Dussol V. Bruguire, 50 Cal. 456 358 Dutcher v. Dutcher, 39 Wis. 651 219, 727, 740, 750, 753, 760 Dutil V. Pacheco, 21 Cal. 438 475 Duvall V. Tinsley, 54 Mo. 93 502, 504 D'Wolf V. D'WoIf, 4 R. I. 450 311 Dyer v. Barstow, 5 Cal. 652 541 Dvson V. Hornby, 7 De G. M. & G. 1 315 V. Morris, 1 Hare, 413 314, 410 V. Ream, 9 Iowa, 51 714, 744 XXXVIU TABLE OF CASES CITED. E. Eagle V. Swayza, 2 Daly, 140 375 Eagle Fire Ins. Co. v. Lent, 6 Paige, 637 402 Earlew. Bull, 15Cal. 421 823 V. Hale, 31 Ark. 473 121, 845 V. Patterson, 67 Ind. 503 604 Eastman v. Linn, 20 Minn. 433 786, 804, 833, 834 V. St. Anthony's Falls W. P. Co., 12 Minn. 137 753 V. Turman, 24 Cal. 379 502 East River Bank v. Kogers, 7 Bosw. 493 789 Eaton V. Alger, 47 N. Y. 345 157, 159, 454 V. Burns, 81 Ind. 390 358 i>. Smith, 19 Wis. 537 127 V. Tallmage, 22 Wis. 526 842 Eccleston v. Clipsham, 1 Wra. Saund. 153 226, 228, 381 Eddie t'. Parke, 31 Mo. 513 410 Ederlin v. Judge, 36 Mo. 350 493, 539 Edgerly v. Farmers' Ins. Co., 43 Iowa, 587 608 Edgerton v. Page, 20 N. Y. 281 809, 828 V. Smith, 3 Duer, 614 609 Edwards v. Boliannon, 2 Dana, 98 ■ 307 V. Campbell, 23 Barb. 423 156 . Houston, 1 Nev. 469 357 V. Seaman, 40 N. Y. 592 376 Fox V. Barker, 14 Ind. 309 840 „. Duff, 1 Daly, 196 289 xl TABLE OF CASES CITED. Fox !>. Kerper, 51 Ind. 148 223 Fox V. Moyer, 6i N. Y. 125 301, 320 Foy V. Haughton, 83 N. C. 467 732 Fraker v. Callum, 24 Kan. 679 822 Fraler v. Sears Un. W. Co., 12 Cal. 555 585 France v. Kruger, 42 Iowa, 143 371 Francis v. Edwards, 77 N. C. 271 777 V. Francis, 18 B. Mon. 57 690 Franco v. Franco, 3 Ves. 77 ' 313 Frank v. Dunning, 38 Wis. 270 587 V. Kessler, 30 Ind. 8 626 Frankboner u. Fraukboner, 20 Ind. 62 731 Franklin v. Kelley, 2 Neb. 79 725 Frans v. Young, 24 Iowa, 376 255, 270 Fraser v. Cliarleston, 13 S. C. 533 404 Frayser v. Kerschner, 73 Ind. 183 604 Frazer v. Frazer, 70 Ind. 411 755 Frear v. Bryan, 12 Ind. 343 464 Frecking v. Kolland, 63 N. Y. 422 376 Freeman v. Carpenter, 17 Wis. 126 740, 759 V. Engleman Tran. Co,, 36 Wis. 571 732 V. Lorrillard, 61 N. Y. 612 792, 795 V. Sprague, 82 N. C. 346 726 Freer v. Denton, 61 N. Y. 492 491, 633, 618, 632 Freethy v. Freetliy, 42 Barb. 641 290 Freitag v. Burke, 45 Ind. 38 665 French v. GifEord, 30 Iowa, 148 321, 414, 417 V. Saile, Stanton's Code (Ky.) 96 828 .;. Salter, 17 Hun, 646 509, 541 V. Turner, 15 Ind. 59 371, 890, 398 Freser v. Charleston, 11 S. C. 486 726 Frick V. White, 67 N. Y. 103 198 Friddle v. Crane, 68 Ind. 583 687 Fried v. N. Y. Cent. K. R., 25 How. Pr. 285 182 Friermuth v. Friermuth, 46 Cal. 42 596 Frisch v. Caler, 21 Cal. 71 712, 714, 742 Frisbee v. Langworthy, 11 Wis. 376 743, 744 Fritz V. Fritz, 23 Ind. 388 493, 637 Frost V. Hatford, 40 Cal. 165 690 Front V. Hardin, 56 Ind. 165 140, 617 Fry V. Bennett, 5 Sandf. 54 555, 642 V. Evans, 8 Wend. 530 206, 793 Frybarger v. Cokefair, 17 Ind. 404 714, 749 Fugate V. Pierce, 49 Mo. 441 761 Fulham v. McCarthy, 1 H. L. Cas. 703 318 Fulkerson v. Davenport, 70 Mo. 641 431 Fuller V. Benjamin, 23 Me. 255 310 V. Fuller, 6 Hun, 595 257, 268 V. FuUerton, 14 Barb. 59 217 FuUerton v. McCurdy, 4 Lans. 132 420 Fulton F. Ins. Co. r. Baldwin, 37 N.Y. 648 182, 261 Fultz V. Fox, 9 B. Mon. (Ky.) 499 380 u. WycofE, 26 Ind. 321 659 Furman v. Van Sise, 56 N. Y. 435 282 G. Gabe v. McGinnis, 68 Ind. 538 609 Gaines v. Union lus. Co., 28 Ohio St. 418 613 V. Walker, 16 Ind. 361 390, 399 Galbreath v. Gray, 20 Ind. 290 350 Gale V. Battin, 16 Minn. 148 407 Gallagher v. Nichols, 60 N. Y. 438 162, 164 Gallimore v. Ammerman, 30 Ind. 323 731 Galloway v. Jenkins, 63 N. C. 147 174 V. Stewart, 49 Ind. 156 614 Gallup V. Albany R. R., 7 Lans. 471 828 Gander v. State, 50 Ind. 539 608 Ganes v. Page, 15 La. An. 108 473 Gannon v. Dougherty, 41 Cal. 661 837 Gardinier v. Kellog, 14 Wis. 605 218 Gardner v. Clark, 21 N. Y. 399 740, 759 c,. Ogden, 22 N. Y. 327 523 V. Walker, 20 How. Pr. 405 304 Garner v. Cook, 30 Ind. 331 169 V. McCuUough, 48 Mo. 318 677, 583, 606 V. Wright, 24 How. Pr. 144 414 Garnsey v. Rogers, 47 N. Y. 233 169 Garretson v. Seaman, 54 N. Y. 652 376 Garrett v. Gault, 13 B. Mon. 378 77, 83 V. Handley, 4 B. & C. 664 228 V. Trotter, 65 N. C. 430 643 Garrison f.Clark, 11 Ind. 369 160, 685, 751 V. Howe, 17 N. Y. 458 277 Garver w. Kent, 70 Ind. 428 2 18, 2 19 Garvey v. Jarvis, 64 Barb. 179 805 Gas Co. V. San Francisco, 9 Cal. 453 691 Gaskell v. Gaskell, 6 Sim. 643 305 Gasquet v. Johnson, 1 La. R. 431 472, 473 Gaston v. McLeran, 3 Oreg. 389 665, 732 !;. Owen, 43 Wis. 103 614 Gates V. Boomer, 17 Wis. 455 318, 320, 501 V. Kief, 7 Cal. 124 96 V. Lane, 44 Cal. 392 433 V. Salmon, 46 Cal. 361 430, 557, 580, 642 Gazynski v. Colburn, 11 Cush. 10 2.30 Gee V. Lewis, 20 Ind. 149 287 Gen. Mut. Ins. Co. v. Benson, 5 Duer, 168 312 Genesee Bank v. Patchin Bank, 13 N. Y. 309 555 Gentz V. Martin, 75 Ind. 228 604 Geoghegan v. Ditto, 2 Mete. (Ky.) 443 840 Gertler v. Linscott, 26 Minn. 82 519, 538 Getty V. Binsse, 49 N. Y. 385 358 V. Devlin, 70 N. Y. 504 309, 431 V. Hudson River E. R., 6 How. Pr. 269 83 Gharky, Est. of, 57 Cal. 274 677 Ghirardelli v. Bourland, 82 Cal. 585 624 Gibson v. Foster, 2 La. An. 503 473 V. Gibson, 41 Wis. 449 293, 644 Giffert v. West, 33 Wis. 617 612, 618, 824 Gilbert v. Allen, 57 Ind. 524 340 TABLE OF CASES CITED. xli Gilbert v. Rounds, 14 How. Pr. 46 738 . Packer, 9 How. Pr. 288 Lapping '^ Duffy, 47 Ind. 56 1.55, Large v. Van Doren, 1 McCarter, 208 313 Larimore v. Wells, 29 Ohio St. 13 640 219 502 789 174 714 586 173, '219 586 728 169 840 641 609 382 751 370 824 540 678 751 620 357 227 738 602 354 174 641 310 642 657 744 358 840 761 165 307, 436 657 Larkin v. Noonan, 19 Wis. 82 626 Larned v. Hudson, 57 N. Y. 151 497, 618, 534 V. Renshaw, 37 Mo. 458 429 Larson v. Reynolds, 13 Iowa, 579 380 Larue v. Hays, 7 Bush, 50 578 Larum v. Wilner, 35 Iowa, 244 752 Lash V. Christie, 4 Neb. 262 604 V. McCormick, 17 Minn. 403 792 V. Rendell, 72 Ind. 475 755 Lasher v. Williamson, 55 N. Y. 619 789 Lathrop v. Godfrey, 6 N. Y. Sup. Ct. 96 198, 660, 792 V. Heacock, 4 Lans. 1 381 V. Knapp, 37 Wis. 307 218 Latlin v. McCarty, 41 N. Y. 107 77, 501, 520 Laub V. Buckrailler, 17 N. Y. 620 83, 86, 96. 97, 501, 520 Landon v. Burke, 36 Wis. 378 378 Laughlin v. Greene, 14 Iowa, 92 221 Lawe V. Hyde, 39 Wis. 345 96, 99, 104, 113, 804, 832 Lawley v. Walden, 3 Swanst. 142 305 Lawrence v. Bk. of Republic, 35 N. Y. 320 V. Fox, 20 N. Y. 268 u. Martin, 22 Cal. 173 V. Montgomery, 37 Cal. 183 168, 264, . Hudson, 4 N. Y. Sup. Ct. 353 174 Looby V. West Troy, 24 Hun, 78 727, 742 Loomis V. Brown, 16 Barb. 331 242, 257, 272 276 V. Eagle Bank, 10 Ohio St. 327 ' 204 V. Mowry, 8 Hun, 311 618, 632 V. Ruck, 56 N. Y. 620 190, 376 V. Youle, 1 Minn. 175 609 Lord V. Baldwin, 6 Pick. 348 228 V. Bearing, 24 Minn. 110 534 V. Lindsay, 18 Hun, 489 732 V. Underdunck, 1 Sandf. Ch. 46 316 Lorney v. Cronan, 50 Cal. 610 676 Los Angeles Co. v. Babcock, 45 Cal. 252 586 Lottin V. McCarty, 41 N. Y. 107 96, 97 Lottman r. Barnett, 62 Mo. 159 629 Louis V. Brown, 7 Oreg. 326 690 Louisville, &c. R. R. v. Thompson, 18 B. Mon. 735 838 Louisville Canal Co. v. Murphy, 9 Bush, 522 557, 561, 606, 643 Love V. Oldham, 22 Ind. 51 823 V. Watkins, 40 Cal. 547 378 Lovejoy v. Robinson, 8 Ind. 399 831, 840 Lovensohn v. Ward, 45 Cal. 8 807 Lowber v. Connil, 36 Wis. 176 89 Lowe V. Morgan, 1 Bro. C. C. 368 306 Lowell V. Lowell, 55 Cal. 316 674 Lower v. Denton, 9 Wis. 268 130 Lowry v. Dutton, 28 Ind. 473 644 0. Harris, 12 Minn. 255 340 V. Hurd, 7 Minn. 356 842, 843 V. Megee, 52 Ind. 107 586, 685 V. Shane, 34 Ind. 495 743 Lowville, Bk. of v. Edwards, 11 How. Pr. 216 251 Lubert v. Chauviteau, 3 Cal. 458 135, 840 Lucas V. N. Y. C. R. R., 21 Barb. 245 540 Luke V. Marshall, 5 J. J. Marsh. 356 268 Lull ;;. Fox, &o. Co., 19 Wis. 100 622, 524 Lumbert v. Palmer, 29 Iowa, 104 615 Luse V. Oaks, 36 Iowa, 562 373 Lutes V. Briggs, 64 N. Y. 404 174, 822 Lynd v. Picket, 7 Minn. 184 676 d TABLE OF CASES CITED. Lyon V. Bunn, 6 Iowa, 48 729 Lytle V. Burgin, 82 N. C. 301 349 V. Lytle, 2 Mete. 127 153, 164, 166, 371 V. Lytle, 37 Ind. 281 557, 580 M. Maas V. Goodman, 2 Hilt. 275 189, 198 Macdougal v. Maguire, 35 Cal. 274 831 Mack V. Burt, 5 Hun, 28 727 Mackenzie v. Board, &e., 72 Ind. 189 250 Mackey v. Auer, 8 Hun, 180 104, 588, 591, 644 Maclay v. Love, 25 Cal. 367 878 Madison Av. Bp. Ch. u. Olirer St. Bp. Cli., 78 N. Y. 88 96 Madison Co. v. Brown, 28 Ind. 161 174 Madox V. Jackson, 3 Atk. 406 431, 435 Magee v. Cutler, 43 Barb. 239 220 V. Kast, 49 Cal. 141 595 V. Supervisors, 38 Wis. 247 609 Maguire v. Tyler, 47 Mo. 161 89, 96, 98 V. Vice, 20 Mo. 429 77, 89, 104 Mahan v. Ross, 18 Mo. 121 840 Maher o. Hibernia Ins. Co., 6lpJ. Y. 283 IT 100 V. Martin, 43 Ind. 314 379 Mahoney v. McLean, 26 Minn. 415 345 V. Robins, 49 Ind. 146 732 Mahon's Adm'r v. Sawyer, 18 Ind. 73 728 Makepeace v. Davis, 27 Ind. 352 340, 345 Malin v. MRlin, 2 Johns. Ch. 238 301, 313 Malone v. Stilwell, 16 Abb. Pr. 421 523 Manchester v. Sahler, 47 Barb. 155 375 Mandlebaum v. Russell, 4 Nev. 551 364 Mangles v. Dixon, 3 H. L. Cas. 702 190 Manhattan B. & M. Co. u. Thompson, 58 N. Y. 80 377 Mann v. Mtaa Fire Ins. Co., 38 Wis. 114 173 V. Fairchild, 2 Keyes, 106 102 V. Marsh, 35 Barb. 68 289 V. Pentz, 3 N. Y. 415 277 Manney v. Ingram, 78 N. C. 96 792, 830 Manning v. Gasharie, 27 Ind. 399 847 V. Monaghan, 23 N. Y. 539 365 u. Tyler, 21 N. Y. 567 664, 732, 747 V. Winter, 7 Hun, 482 717 Manufac. Nat. Bk. v. Russell, 6 Him, 375 690, 732 Maple V. Beach, 43 Ind. 51 244 Maples V. Geller, 1 Nev. 233 357 Margraf v. Muir, 57 N. Y. 159 96 Marie v. Garrison, 83 N. Y. 14 257, 271, 816, 604 Marine Bank v. Jauncey, 1 Barb. 486 189 Marks v. Marsh, 9 Cal. 96 380, 402 11. Say ward, 50 Cal. 57 746 Marley v. Smith, 4 Kan. 183 714, 741 Marlow v. Barlew, 53 Cal. 456 377, 378 Marquati). Marquat, 12 N. Y. 386 86, 102, 343, 502 Marr v. Lewis, 81 Ark. 203 121, 845 Marsh v. Brooklyn, 4 N. Y. Sup. Ct. 413 174 V. Falker, 40 N. Y. 562 619 V. Goodrell, 11 Iowa, 474 357 V. Oliver, 1 McCarter, 262 314 V. Pugh, 43 Wis. 597 642 V. Supervisors, 38 Wis. 250 249, 302, 339 Marshall v. Gray, 57 Barb. 414 619, 621 V. Moseley, 21 N. Y. 280 262 Martin v. Am. Ex. Co., 19 Wis. 336 728 V. Crompe, 1 Ld. Raym. 340 229 V. KunzmuUer, 37 N. Y. 396 193, 201 V. Mattison, 8 Abb. Pr. 3 586 V. Mobile & 0. E. R., 7 Bush, 116 77 V. Noble, 29 Ind. 216 890, 399 V. Pillsbury. 23 Minn. 175 198 V. Pugh, 23 Wis. 184 741, 826 V. Richardson, 68 N. C. 255 202 Martindale v. Tibbetts, 16 Ind. 200 287 Marvin v. Adamson, 11 Iowa, 371 368, 456 Marye v. Jones, 9 Cal. 885 840 Mason v. Hey ward, 8 Minn. 182 770, 777, 824, 826 V. Lord, 40 N. Y. 476 190, 192 V. Weston, 29 Ind. 561 639, 755 V. Whitelv, 1 Abb. Pr. 84 628 Massie v. Stradford, 17 Ohio St. 596 106, 121 Masten v. Blackwell, 8 Hun, 813 358 Masters v. Freeman, 17 Ohio St. 328 255, 256 Masterson v. Botts, 4 Abb. Pr. 130 222 Masterton v. Hagan, 17 B. Mon. 325 171 Masury u. Southworth, 9 Ohio St. 340 164 Mathews v. Ferrea, 45 Cal. 51 747 Matlock ... Todd, 25 Ind. 128 77, 78, 753 Mattair ii. Payne, 15 Fla. 682 99, 541 Matthews v. Cady, 61 N. Y. 651 140, 617, 620 V. Sheehan, 69 N. Y. 585 190 Mattoon v. Baker, 24 How. Pr. 329 782 Maule V. Beaufort, 1 Russ. 349 888 Manly v. Howlitt, 55 Cal. 94 746 Mavrich v. Grier, 3 Nev. 52 889, 402 Maxon v. Scott, 55 N. Y. 247 376 Maxwell v. Campbell, 45 Ind. 360 115 V. Dudley, 13 Bush, 403 644 V. Farnam, 7 How. Pr. 236 541 V. Pratt, 24 Hun, 448 250 May V. Hanson, 6 Cal. 642 357 V. Selby, 1 Y. & C. 565 813 Mayhew v. Robinson, 10 How. Pr. 162 740, 759 Mayo V. Madden, 4 Cal. 27 542 Mayor v. CunlifE, 2 N. Y. 165 642 V. Mabie, 13 N. Y. 151 768 Mayor v. Parker Vein Co., 12 Abb. Pr. 300 777, 810, 828 Mayrich v. Grier, 3 Nev. 52 377 TABLE OF CASES CITED. McAbee v. Randall, 41 Cal. 136 787, 788, 848 McAdams v. Sutton, 24 Ohio St. 333 613 McAdow V. Ross, 58 Mo. 199 761, 834 McArdle v. McArdle, 12 Minn. 98 753 McArthur v. Franklin, 15 Ohio St. 485 381, 388, 400 V. Green Bay, &c. Co., 34 Wis. 139 182, 831, 834 McBeth V. Van Sickle, 6 NeV. 134 171 McBride v. Farmers' Bank, 26 N. Y. 450 163 McCabe v. Grey, 20 Cal. 509 203 McCall V. Yard, 1 Stockt. 358 436 McCarnan v. Cochran, 67 Ind. 106 640 McCarthy v. Garraghty, 10 Oliio St. 438 502 McCartney v. Welch, 44 Barb. 271 377 McCarty v. Fremont, 23 Cal. 196 542 V. Roberts, 8 Ind. 150 746 McClane v. White, 5 Minn. 178 113 McClelland v. Nichols, 24 Minn. 176 726 McClintic v. Corv, 22 Ind. 170 844 McClurg V. Phillips, 49 Mo. 315 501 McCoUister v. Willey, 52 Ind. 382 753 MeConihe v. Hollister, 19 Wis. 269 787, 791, 802 McConnell v. Brayner, 63 Mo. 461 250, 271 McCord V. Seale, 56 Cal. 262 611 McCormick v. Basal, 46 Iowa. 235 604 V. Lawton, 3 Neb. 449 378, 434 V. Penn. Cent. R. R,, 49 N. Y. 303 295 McCotter u. Lawrence, 6 N. Y. Sup. Ct. 392 301, 316, 317, 419 McCoy V. Sanson, 13 La. An. 455 473 V. Yager, 34 Mo. 134 491 MeCrary v. Deraing, 38 Iowa, 527 792 McCreary v. Marston, 66 Cal. 403 746 McCrory v. Parks, 18 Ohio St. 1 88 McCulloch V. Hollingsworth, 27 Ind. 115 307 McCullough V. Lewis, 1 Disney, 664 840 McDaniel v. Carver, 40 Ind. 250 751 McDearman v. McClure, 31 Ark. 559 435 McDonald v. Backus, 45 Cal. 262 434 V. Kneeland, 5 Minn. 352 155 McDougall V. Walling, 48 Barb. 364 183, 839 McDowell V. Clark, 68 N. C. 118 370 V. Hendrix, 67 Ind. 513 282 V. Law, 35 Wis. 171 169 McElfresh v. Kirkendall, 36 Iowa, 224 373 McGlasson v. Bradford, 7 Bush, 250 600 McGlothlin v. Hemery, 44 Mo. 355 503 McGonigal v. Colter, 32 Wis. 614 343, 345, 641 McGovern v. Payn, 32 Barb. 83 621 McGrath v. Balser, 6 B. Mon. 141 627 Mcllvaine v. Egerton, 2 Robt. 422 791 Mcintosh V. Ensign, 28 N. Y. 169 343, 362, 364, 366 V. Mcintosh, 12 How. Pr. 280 541 McKeage v. Hanover F. Ins. Co., 81 N. Y. 38 180 McKee v. Judd, 12 N. Y. 622 181 r. Lineberger, 69 N. C. 217 216 V. Pope, 18 B. Mon. 648 493 McKegney v. Widekind, 6 Bush, 107 824, 826 McKensie v. Farrell, 4 Bosw. 192 828 McKenzie v. L'Amoureux, 11 Barb. 516 246, 440, 443 V. Pendleton's Adm'r, 1 Bush, 164 840 McKethan v. Ray, 71 N. C. 165 411 McKillip V. McKillip, 8 Barb. 552 224 McKime v. McGarvey, 6 Cal. 497 380 McKinley v. Irvine, 13 Ala, 681 411 McKinney v. McKinney, 8 Ohio St. 423 753 V. West. St. Co., 4 Iowa, 420 293 McKinnon v. McKinnon, 81 N. C. 201 169, 218 MeKissen v. Sherman, 51 Wis. 303 732 McKnight V. Dunlop, 4 Barb. 36 631, (i32 V. M'Cutchen, 27 Mo. 486 1.30 McKoon V. Ferguson, 47 Iowa, 636 614 McKyring v. Bull, 16 N. Y. 297 702, 703, 707, 736, 737, 741 McLachlan v. Staples, 13 Wis. 448 503 McLane v. Bovee, 35 Wis. 27 725, 746 V. Wliite, 5 Minn. 178 117 McLaughlin v. McLauglilini 16 Mo. 242 525 McLean v. Leach, 68 N. C. 95 793 McMahan v. Miller, 82 N. C. 317 613 V. Spinning, 51 Ind. 187 668, 822 McMahon v. Allen, 3 Abb. Pr. 89 464, 540 McMaken v. McMaken, 18 Ala. 576 317 McManus v. Smith, 53 Ind. 2U 115, 804 McMaster v. Booth, 4 How. Pr. 427 555 McMillan v. Boyles, 14 Iowa, 107 174 McMillen v. Gibson, 10 Louis. 517 473 McMurphy v. Walker, 20 Minn. 382 677 McNamara v. McNaniara, 9 Abb. Pr. 18 806 McNeady v. Hyde, 47 Cal. 481 101 McNeil V. Tenth Nat. Bank, 55 Barb. 69 190, 192 McPherson v. Featherstone, 37 Wis. 6.32 106 V. Meek, 30 Mo. 345 792, 793 McQueen n. Babcock, 13 Abb. Pr. 268 628 McReady v. Rogers, 1 Neb. 124 364, 3a8 McRoberts v. So. Minn. R. R., 18 Minn. 108 250 McVean v. Scott, 46 Barb. 379 364 Mc Williams u. Bannister, 40 Wis. 489 714 Meadtf. Bagnall, 15 Wis. 156 492 V. Brown, 66 Mo. 662 489 V. Mitchell, 17 N. Y. 210 426, 428 Meagher v. Morgan, 3 Kan. 372 693 Mebane v. Mebane, 66 N. C. 334 223 Meech v. Stoner, 19 N. Y. 26 181, 183 Meegan v. GunsoUis, 19 Mo. 417 374 Hi TABLE OF CASES CITED. Meehan v. Harlem Sar. Bank, 5 Hun, 439 692 Meeker K. Claghorn, 44 N. Y. 349 155, 161 Meeks w. Hahn, 20 Cal. 620 223 Meese v. Fond du I-ac, 48 Wis. 323 293 Meier v. Lester, 21 Mo. 112 217 Mendenhall v. Treadway, 44 Ind. 131 379 V. Wilson, 54 Iowa, 589 345, 522, 536 Mercein «. Smith, 2 Hill, 210 206, 793 Merchants', &c. Bank v. Hewitt, 3 Iowa, 93 163 Merchants' Bank v, Thomson, 55 N. r. 7 391, 400 V. Union, &c. Co., 69 N. Y. 878 152 Meredith v. Lackey, 16 Ind. 1 848 Merrick v. Brainard, 38 Barb. 574 182 V. Gordon, 20 N. Y. 93 781, 793 Merrill v. Dearing, 22 Minn. 376 534 V. Green, 55 N. Y. 270 169, 198 V. Grinnell, 30 N. Y. 594 182 V. Nightingale, 39 Wis. 247 822, 824 «. Plainfield, 45 N. H. 126 174 Merritt v. Briggs, 57 N. Y. 654 722 V. Gliddon, 39 Cal. 559 594 ... Merle, 22 La. An. 257 473 V. Seaman, 6 Barb. 330 206, 793 t;. Walsh, 32 N. Y. 685 250, 267 V. Wells, 18 Ind. 171 306 Martens v. Loewenberg, 69 Mo. 208 288 Merwin v. Ballard, 65 N. C. 168 450 Metrop. Life Ins. Co. v. Meeker, 85 N. Y. 614 577, 580, 652 Metzger v. Attica, &c. K. R., 79 N. Y. 171 174 Mewhirter v. Hatten, 42 Iowa, 288 289 V. Price, 11 Ind. 199 160 Meyer v. Amidon, 45 N. Y. 169 619 V. Dubuque, 43 Iowa, 592 104, 608 V. Lowell, 44 Mo. 328 167 V. McLean, 1 Johns. 509 660, 662 Meyers v. Field, 37 Mo. 434 77, 78, 89, 93 Michel V. Sheriff, 23 La. An. 53 473 Micklethwait v. Winstanley, 13 W. K. 210 410 Miles 0. Durnford, 2 De G. M. & G. 641 318 V. Smith, 22 IMo. 502 389, 396 Miller v. Bear, 8 Paige, 467 418 V. Brigham, 50 Cal. 615 674 V. Curry, 53 Cal. 665 362 V. Florer, 15 Ohio St. 149 167, 204, 840 V. Fulton, 47 Cal. 146 113 V. Gaither, 3 Bush, 152 840 V. Hall, 70 N. Y. 25 404 V. Hendig, 55 Iowa, 174 613 V. Hollingsworth, 36 Iowa, 163 378 V. Hunt, 3 N. Y. S. C. 762 377 V. Van Tassel, 24 Cal. 458 135, 137 V. Warmington, 1 Jac. & Walk. 484 305 V. White, 6 N. Y. S. C. 255 643 Milligan v. Poole, 35 Ind. 64 429 Milliken v. Gary, 5 How. Pr. 272 93 Mills V. Buttrick, 4 Col. 53 121, 424, 845 V. Ladbroke, 7 Man. & Gr. 218 228 Mills V. Malott, 43 Ind. 248 266 V. Murry, 1 Neb. 327 152 u. Rice, 3 Neb. 76 602, 604, 753 u. Van Voorhies, 20 N. Y. 412 388, 389, 401 Milroy v. Quinn, 69 Ind. 406 604 Milwaukee, &o. R. R. v. Milwaukee & W. R. R., 20 Wis. 174 187 Minier v. Minier, 4 Lans. 421 290 Minneapolis, &c. Co. v. Libby, 24 Minn. 327 251 Minnesota Oil Co. v. Palmer, 20 Minn. 468 174 Minturn v. Main, 7 N. Y. 220 216 Mitchell V. Allen, 25 Hun, 543 364, 365, 368 V. Am. Ins. Co., 51 Ind. 396 480 <;. Bank of St. Paul, 7 Minn. 252 340, 345, 413, 417, 503 V. Dickson, 53 Ind. 110 152 V. Milwaukee, 18 Wis. 92 174 V. Mitchell, 61 N. Y. 398 586 V. O'Neale, 4 Nev. 504 463, 464 V. Smitb, 32 Iowa, 484 377 Mix V. Fairchild, 12 Iowa, 351 363, 456 Moberly v. Alexander, 19 Iowa, 162 833 Mobile V. Waring, 41 Ala. 139 174 Moen V. Eldred, 22 Minn. 538 671 Moffat V. Farquharson, 2 Bro. C. C. 338 809 V. Van Doren, 4 Bosw. 609 807, 832 Moffet V. Saekett, 18 N. Y. 522 771 Molir V. Barnes, 4 Col. 350 642 Mole V. Smith, Jacob, 490 419 Molineux v. Powell, 3 P. Wms. 268 316 Monaghan v. School District, 38 Wis. 100 282 Montfort v. Hughes, 3 E. D. Smith, 59 367 Montgomerie v. Bath, 3 Ves. 560 306 Montgomery v. Gorrell, 51 Ind. 309 480 0. McEwen, 7 Minn. 351 96, 618 u. Shockey, 37 Iowa, 107 613 V. Sprankle, 31 Ind. 113 379 Monti 1}. Bishop, 3 Col. 605 121, 845 Montour v. Purdy, 11 Minn. 401 669 Moody V. Arthur, 16 Kan. 419 608 Mooney v. H. R. R. R., 6 Robt; 548 364 V. Maas, 22 Iowa, 380 391, 401 Moore v. Beauchamp, 5 Dana, 70 311 V. Caruthers, 17 B. Mon. 669 843 V. Gleaton, 23 Ga. 142 315 V. Hegemar, 6 Hun, 290 413 V. Hobbs, 79 N. C. 535 577, 588, 591 v. Lowry, 25 Iowa, 336 154 V. Mayor, 8 N. Y. 110 186 V. Metropolitan Nat. Bank, 55 N. Y. 41 196 V. Moberly, 7 B. Mon. 299 435 V. Moore, 47 N. Y. 467 290 V. Moore, 56 Cal. 89 600 V. Noble, 63 Barb. 425 617, 620, 622 V. Smith, 10 How. Pr. 361 519 V. Willamette Co., 7 Greg. 355 760 Moorehead v. Hyde, 38 Iowa, 382 218, 790 Moorehouse v. Ballon, 16 Barb. 289 357 TABLE OF CASES CITED. liii Moorman v. Collier, 32 Iowa, 138 153, 171, 184 Moran r. LeBlanc, 6La. An. 113 478 More V. Massini, 32 Cal. 590 181, 635 V. Rand, 60 N. Y. 208 792, 822 Moreau v. Uetchemendy, 41 Mo. 431 89, 98, 504 V. Moreau, 25 La. An. 214 473 Morehead v. Halsell, Stanton's Code (Ky.), 96 823 Morenhaut v. Wilson, 52 Cal. 263 265, 746 Morgan v. Booth, 13 Bush, 480 676 V. Hawkeye Ins. Co., 37 Iowa, 359 730 V. Morgan, 2 Wheat. 290 316 V. Reid" 7 Abb. Pr. 215 215 V. Smith, 7 Hun, 244 789, 822 V. Wattles, 691nfl. 260 714 Morley v. Morley, 25 Beav. 253 306 Mornan v. CarroU, 35 Iowa, 22 249, 339 Morrell v. Irving Fire Ins. Co., 33 N. Y. 429 361, 741, 743 Morret v. Westerne, 2 Vern. 663 399 Morns v. Tuthill, 72 N. Y. 575 152 V. Wheeler, 45 N. Y. 708 393, 400 Morrison v. Kramer, 58 Ind. 38 804, 822 V. Lovejoy, 6 Minn. 319 770, 777 V. Rogers, 2 111. 317 632 Morrow v. Bright, 20 Mo. 298 198, 201 V. Lawrence, 7 Wis. 574 411 Morse v. Gilman, 16 Wis. 504 600, 602, 603 V. Morse, 42 Ind. 365 410, 432 V. Sadler, 1 Cox, 352 315 Mortland v. Holton, 44 Mo. 58 840 Morton v. Coffin, 29 Iowa, 235 690 K..Green, 2Neb. 441 128 V. Waring, 18 B. Mon. 72 675 V. Weil, 11 Abb. Pr. 421 406 Moses V. Kearnev, 31 Ark. 261 174 Moss V. Warner,"l0 Cal. 296 380, 402, 475 Mott V. Burnett, 2 E. D. Smith, 50 760 Moudran v. Soux, 51 Cal. 151 611 Moulton V. Norton, 5 Barb. 286 364 V. Thompson, 26 Minn. 120 714, 726 V. Walsh, 30 Iowa, 361 753 Movan v. Hays, 1 Johns. Ch. 339 411 Mo. Valley Land Co. v. Bushnell, 11 Neb. 192 644 Mowry v. Hill, 11 Wis. 146 79, 83 Moyle V. Porter, 51 Cal. 639 804, 832 Mudgett V. Gager, 52 Me. 541 309, 312 Muir V. Gibson, 8 Ind. 187 340, 390, 396, 410 Mulholland v. Rapp, 50 Mo. 42 491, 493 MuUendore v. Scott, 45 Ind. 113 668, 838 MuUin's Appeal, 40 Wis. 154 222 Munch V. CockereU, 8 Sim. 219 321, 411, 412, 414 Munger v. Shannon, 61 N. Y. 251 657 Murden v. Priment, 1 Hilt. 75 768, 831 Murphy v. Wilson, 44 Mo. 313 364 Murray v. Blaekledge, 71 N. C. 492 129 V. Catlett, 4 Greene, 108 393, 395 V. Ebright, 60 Ind. 362 844 Murray v. Hay, 1 Barb. Ch. 59 245, 322 V. N. Y. Life Ins. Co., 85 N. Y. 236 642, 690 Musselman v. Cravens, 47 Ind. 4 218 V. Galliglier, 32 Iowa, 383 295, 373, 794, 800 Musser v. Crura, 48 Iowa, 52 755 Muzzy V. Ledlie, 23 Wis, 445 640 Myers v. Burns, 35 N. Y. 269 823 V. Davis, 22 N. Y. 489 188, 198, 200 ^. Field, 37 Mo. 434 103, 104 V. Machado, 6 Abb. Pr. 198 222, 251 V. State, 47 Ind. 293 359 Mygatt V. Wilcox, 1 Lans. 55 356 Mynderse v. Snook, 1 Lans. 488 793, 796, 797 N. Naglee v. Minturn, 8 Cal. 540 840 V. Palmer, 7 Cal. 543 840 Nash V. McCaulev, 9 Abb. Pr. 159 640 V. Mitchell, 71 N. Y. 199 877 V. St. Paul, n Minn. 174 708, 749 National Bank v. Green, 33 Iowa, 140 639 National Bank of Michigan v. Green, 33 Iowa, 140 755 Nat. lire Ins. Co. u. McKay, 21 N. Y. 191 781 Nat. Trust Co. v. Gleason, 77 N. Y. 400 634 Natoma W. Co. v. Clarkin, 14 Cal. 544 635 Nave V. Hadley, 74 Ind. 155 345 V. King, 27 Ind. 356 174 Neal r. Lea, 64 N. C. 678 796, 797 Neftel V. Lightstone, 77 N. Y. 96 140, 617 Nelson v. Brodhack, 44 Mo. 596 725, 761 V. Hart, 8 Ind. 293 339, 370, 410 V. Johnson, 18 Ind. 329 371 V. Murray, 23 Cal. 338 690 V. Nixon. 13 Abb. Pr. 104 215 Netcott V. Porter, 19 Kan. 131 651 Neuberger v. Webb, 24 Hun, 347 692 Neudecker v. Kohlberg, 81 N. Y. 296 140, 371,617,620 Nevada, &c. Co. v. Kidd, 43 Cal. 180 492 New England, &c. Bank v. Newport Steam Factory, 6 R. I. 154 385 New London o. Brainard, 22 Conn. 552 174 Newberry v. Garland, 31 Barb. 121 289 Newcomb v. Dewey, 27 Iowa, 381 391, 399 V. Horton, 18 Wis. 566 318, 324, 436, 444 Newell V. Mahaske Co. Sav. Bank, 51 Iowa, 178 629 V. Roberts, 54 N. Y. 677 376 V. Salmons, 22 Barb. 647 748, 799 Newhall House Co. v. Flint, &c. R. R., 47 Wis. 516 740 New Haven, Bank of v. Perkins, 29 N. Y. 654 158 liv TABLE OF CASES CITED. Newkirk v. Neild, 19 Iiid. 194 837 Newman v. Home Ins. Co., 20 Minn. 422 424 V. Otto, 4 Sandf. 668 642 V. Perrell, 73 Ind. 153 608 V. Springfield Ins. Co., 17 Minn. 123 168, 675 Newton v. Allis, 12 Wis. 378 626 V. Egmont, 4 Sim. 574 402, 424 V. Keech, 9 Hun, 355 176 N. Y. Cent. Ins. Co. v. Nat. Protec- tion Ins. Co., 14 N. Y. 85 75, 83, 86, 87, 96, 101, 118 N. Y. Ice Co, V. N. W. Ins. Co., 23 N. Y. 357 500, 520 V. Parlcer, 8 Bosw. 688 798 N. Y. Milk Pan Co. v. Remington W'ks, 25 Hun, 475 463 N. Y. & N. H. R. R. V. Sclmyler, 17 N. Y. 592 343, 344, 406, 424, 507 Nicolai v. Lyon, 8 Greg. 56 586 NiciioU V. Williams, 2 M. & W. 758 705 Nichols V. Boerum, 6 Abb. Pr. 290 823 V. Burton, 5 Bush, 320 355 V. Drew, 19 Hun, 490 522 V. Michaels, 23 N. Y. 264 352, 366 V. Randall, 5 Minn. 304 345, 389, 397 V. Townsend, 7 Hun, 375 822, 824 Niglitingale v. Scannell, 6 Cal. 506 270 Nill !;. Jenkinson, 15 Ind. 425 174 Ninde v. Oskaloosa, 55 Iowa, 207 692 Nininger v. Commissioners, 10 Minn. 133 287 Nippel V. Hammond, 4 Col. 211 121 Noble V. Burton, 38 Ind. 206 594 Noe V. Christie, 51 N. Y. 270 215 Noesen v. Port Washington, 37 Wis. 168 174 Noland v. Turner, 5 J. J. Marsh. 179 310 Nolle V. Thompson, 3 Mete. 121 824, 835 Noonan v. Orton, 21 Wis. 283 99, 185 Norden v. Jones, 33 Wis. 600 633, 824, 841 Normand v. Commissioners, 8 Neb. 18 174 Norris v. Amos, 15 Ind. 365 714, 731, 743 V. Glenn, 1 Idaho, 590 676 V. Ogden, 11 Martin, 455 473 North V. Bloss, 30 N. Y. 374 357 V. Bradway, 9 Minn. 183 406, 501 N. C. Land- Co. o. Beatty, 69 N. C. 329 521, 525 North Kansas, &c. Co. v. Oswald, 18 Kan. 336 577 North W. Conference v. Myers, 36 Ind. 375 213 N.W.U. P. Co. U.Shaw, 37 Wis. 655 629 Northrup v. Miss. Valley Ins. Co., 47 Mo. 435 709, 732, 750 Norton v. Poster, 12 Kan. 44 198, 202 Norral v. Rice, 2 Wis. 22 287 Noyes v. Sawyer, 3 Vt. 160 305 Nudd V. Thompson, 34 Cal. 39 761 Nys V. Bilmeret, 45 Wis. 104 657 o. Gates V. Gray, 66 N. C. 442 557 V. Kendall, 67 N. C. 241 613, 617, 628 Oatman v. Goodrich, 15 Wis. 589 377 Oberlander v. Spiess, 45 N. Y. 175 619 O'Blemis v. Karing, 57 N. Y. 649 789, 790 O'Brien v. MoCann, 58 N. Y. 373 738 V. O'Connell, 7 Hun, 228 301 V. Police Jury, 2 La. An. 355 473 V. St. Paul, 18 Minn. 176 616 Gckenden v. Barnes, 43 Iowa, 615 577, 586 O'Connell v. Cotter, 44 Iowa, 48 629 O'Conner v. Frasher, 53 Ind. 435 845 O'Connor v. Koch, 56 Mo. 253 609 G'Daily v. Morris, 31 Ind. Ill 379 Oechs V. Cook, 3 Duer, 161 642 Offley V. Jenney, 3 Ch. Rep. 92 314, 410 Ogden V. Coddington, 2 B. D. Smith, 317 780 V. Prentice, 33 Barb. 160 198, 201 Ogdensburgh, &c. R. R. v. Vermont, &c. R. R., 63 N. Y. 176 509 Ogilvie V. Lightstone, 1 Daly, 129 841 Ogle V. Clough, 2 Duv. 145 405 O'Gorman v. Lindeke, 26 Minn. 93 361 Ohio, &c. R. R. V. Colburn, 73 Ind. 261 604 V. Nicklaus, 71 Ind. 271 481 V. Tindall, 13 Ind. 366 293 Ohio & M. R. R. u. Hemberger, 43 Ind. 462 685 Glcott V. Carroll, 39 N. Y. 436 600 Oldham v. Collins, 4 J. J. Marsh. 50 310 Oliver v. La Valle, 36 Wis. 592 293 U.Putnam Co., 24 Ind. 514 174 Olmstead v. Supervisors, 24 Iowa, 33 174 Olmsted v. Keyes, 85 N. Y. 593 173 Onson I'. Cown, 22 Wis. 329 117 Ontario B'k v. N.J. Steamship Co., 59 N. Y. 510 726 Ord V. McKee, 5 Cal. 515 216 Ormsby v. Douglas, 5 Duer, 665 761 Oro Fino Min. Co. v. CuUen, Idaho R. 113 463, 629 Oroville, &c. R. R. v. Supervisors, &c., 37 Cal. 354 731 Orr W. Ditch Co. v. Larcombe, 14 Nev. 63 686 Ortley v. Messere, 7 Johns. Ch. 139 224 Orton V. Noonan, 19 Wis. 350 643, 723, 725 Osborn v. Bell, 5 Denio, 370 635, 636 Osborne v. Endicott, 6 Cal. 149 725 V. Harper, 5 East, 225 229 V. Taylor, 12 Gratt. 117 315 Osbourne v. Fallows, 1 R. & M. 741 402, 436 Osgood V. De Groot, 36 N. Y. 348 206 V. Laytin, 5 Abb. Pr. n. s. 1 277, 416, 424 V. Maguire, 61 N. Y. 524 326, 416 V. Ogden, 4 Keyes, 70 206 Ostrom V. Bixby, 9 How. Pr. 57 761 TABLE OF CASES CITED. Iv O'Toole V. Garvin, 3 N. Y. S. C. 118 749 Over V. Shannon, 75 Ind. 352 727 Owen V. Cawley, 36 N. Y. 600 876 V. Cooper, 46 Ind. 524 641 V. Frink, 24 Cal. 171 316 V. Owen, 22 Iowa, 270 296 V. State, 26 Ind. 107 359 Owsley V. Case, 16 Wis. 606 377 Packard v. Slack, 32 Vt. 9 503 V. Snell, 35 Iowa, 80 616 Paddon v. Williams, 2 Abb. Pr. N. s. 88 155, 172 Padwick v. Piatt, 11 Beav. 503 302 Page V. Ford, 12 Ind. 46 791 u. Kennan, 38 Wis. 320 576 V. Williams, 54 Cal. 562 629 Pahquioque B'k v. First Nat. B'k, 36 Conn. 325 320 Paige V. Fazackerly, 36 Barb. 392 219 V. Willett, 38 N. Y. 31 643 Paine v. Hunt, 40 Barb. 75 792 Palen v. Bushnell, 46 Barb. 24 513, 518 V. Lent, 5 Bosw. 713 523 Palk V. Clinton, 12 Ves. 58 308, 437, 530 Palmer v. Carlisle, 1 S. & S. 423 305, 436 V. Davis, 28 N. Y. 242 249, 251, 254, 258, 289 V. Fort Plain, &c. Co., 11 N. Y. 376 214, 220 V. Waddell, 22 Kan. 352 264 V. Yager, 20 Wis. 91 402 Pancoast v. Burnell, 32 Iowa, 394 295 Parckin v. Peck, 2 Mont. 567 250 Pardee v. Treat, 82 N. Y. 385 169 Paris V. Strong, 51 Ind. 339 714 Parke v. Kilham, 8 Cal. 77 263 Parker v. Berry, 12 Kan. 351 753 u. Fuller, 1 Russ. & My. 656 308, 400 V. Jackson, 16 Barb. 33 343, 358, 362, 454 V. Jacobs, 14 S. C. 112 104 «. Laney, 58 N. Y. 469 88, 96 0. Small, 58 Ind. 349 261, 307 V. Thomas, 19 Ind. 213 641 Parmelee v. Egan, 7 Paige, 610 319 Parrott v. Hughes, 10 Iowa, 459 392, 399 Parry v. Kelly, 52 Cal. 334 377, 378 Parshall v. Moody, 24 Iowa, 314 415 Parsley v. Nicholson, 65 N. C. 207 613 Parsons v. Nash, 8 How. Pr. 454 797, 798 V. Neville, 3 Bro. C. C. 365 310 Partridge v. Blanchard, 23 Minn. 69 587 Patchin v. Peck, 38 N. Y. 39 250 Paterson v. Long, 5 Beav. 186 316 Paton V. Murray, 9 Paige, 474 394 Patterson v. Patterson, 59 N. Y. 574 836 Pattison v. Richards, 22 Barb. 143 780, 783, 831, 810 Patton V. Kinsman, 17 Iowa, 428 377 Paul V. Fulton, 25 Mo. 156 413 Pavey v. Pavey, 30 Ohio St. 300 Pavisich v. Bean, 48 Cal. 364 340, Paxton V. Wood, 77 N. C. 11 99, Payne v. Briggs, 8 Neb, 75 u. McKinley, 54 Cal. 532 V. Treadwell, 16 Cal. 220 135, Peabody v. Beach, 6 Duer, 53 V. Bloomer, 5 Duer, 678 790, u. Washington, &c. Ins. Co., 20 Barb. 339 Peacock v. Monk, 1 "Ves. 127 V. Penson, 11 Beav. 355 Peak V. Lemon, 1 Lans. 295 373, Peake v. Ledger, 8 Hare, 313 313, Pearce v. Ferris, 10 N. Y. 280 V. Hitchcock, 2 N. Y. 388 V. Mason, 78 N. C. 37 Pearkes v. Freer, 9 Cal. 642 Pearson v. Cummings, 28 Iowa, 344 Pease v. Hannah, 3 Oreg. 301 V. Rush, 2 Minn. 107 V. Smith, 61 N. Y. 477 Peck V. Elder, 3 Sandf. 126 V. Newton, 46 Barb. 173 77, 88, u. N. Y., &c. R. R., 85 N. Y. 246 V. Parchin, 52 Iowa, 46 467, V. Root, 5 Hun, 547 V. School Dist., 21 Wis. 516 V. Shick, 50 Iowa, 281 V. Ward, 3 Duer, 647 Pecker v. Cannon, 11 Iowa, 20 Peckham v. North Parish, 16 Pick. 274 Peddicord v. Whittam, 9 Iowa, 471 Peel V. Elliott, 7 Abb. Pr. 433 Peet V. O'Brien, 5 Neb. 360 Pelly V. Bowyer, 7 Bush, 513 242, Pelton V. Farmin, 18 Wis. 222 Pence v. Croar, 51 Ind. 329 Pendleton v. Dalton, 77 N. C. 67 Penfield v. Wheeler, 27 Minn. 358 Pennoyer v. Allen, 50 Wis. 308 110, 115, .364, 367, Penna. Co. v. Holderman, 69 Ind 18 Pennsylvania Co. v. Sedgwick, 59 Ind. 336 Penn. Coal Co. v. Blake, 85 N. Y. 226 657, V. Del. & H. Can. Co., 1 Keyes, 72 Penny v. Penny, 9 Hare, 39 V. Watts, 2 Phil. 149 People V. Albany, &c. R. R., 57 N. Y. 161 106, 175, 416, V. Brandreth, 3 Abb. Pr. N. s. 224 V. Clark, 21 Barb. 214 V. Comm'rs, 54 N. Y. 276 576, V. Cram, 8 How. Pr. 151 V. Crooks, 53 N. Y. 648 251, 1/. Curtis, 1 Idaho, 753 V. Denison, 84 N. Y. 272 760 594 541 651 577 136 798 798 249 319 316 375 314 351 272 643 537 163 733 163 587 322 129 613, 644 668 620 323 629 464 357 330 363, 456 220 668 282 402 586 282 463 113, 803 640 604 V. Edwards, 9 Cal. 286 617 810, 453 102 414 302 467 789 217 642 799 261 692 620, 830 465 Ivi TABLE OF CASES CITED. People V. Fields, 58 N. Y. 491 175 V. Hager, 52 Cal. 171 670 V. Haggin, 67 Cal. 579 261 V. InglesoU, 58 N. Y. 1 175 V. Jenkins, 17 Cal. 500 357 V. Kendall, 25 Wend. 399 634 V. Laws, 3 Abb. Pr. 450 217 V. Lothrop, 3 Call. 428 760 V. Love, 25 Cal. 520 455 V. Mayor, 32 Barb. 102 173 V. Norton, 9 N. Y. 176 217 V. Ryder, 12 N. Y. 433 93, 556, 574, 602 V. Sexton, 37 Cal. 532 475 V. Sherwin, 2 N. Y. Sup. Ct. 528 175 V. Slocum, 1 Idaho, 62 215 V. Sloper, Idaho, 183 355, 608 u. Talmage, 6 Cal. 256 475 V. Tioga Co., 19 Wend. 73 179 o. Townsend, 37 Barb. 520 217 V. Tweed, 63 N. Y. 194 499 People's Bank v. Mitchell, 73 N. Y. 406 104 Perkins v. Ermel, 2 Kan. 325 714 V. Lewis, 24 111. 208 174 I). Perkins, 62 Barb. 531 290, 376 V. Port Washington, 37 Wis. 177 804 V. Rogers, 35 Ind. 124 753 Perry v. Chester, 12 Abb. Pr. n. s. 131 791, 799 r. Knott, 4 Beav. 179 312, 412, 414 V. Seitz, 2 DuT. (Ky.) 122 370, 371 V. Turner, 55 Mo. 418 354, 372 V. Whitaker, 71 N. C. 477 444 Person v. Merrick, 5 Wis. 231 308, 400 V. Warren, 14 Barb. 488 224 Peters v. Jones, 35 Iowa, 512 316, 421 V. St. Louis, &c. R. B., 24 Mo. 580 163 Petersen v. Chemical Bank, 32 N. Y. 21 163 Peterson v. Roach, 32 Ohio St. 374 577 Peto V. Hammond, 29 Beav. 91 388 Petre v. Buncombe, 7 Hare, 24 316 Petrie v. Bury, 3 B. & C. 353 228 V. Petrie, 7 Lans. 90 309, 310, 412, 431 Pettibone v. Edwards, 15 Wis. 95 306 V. Hamilton, 40 Wis. 402 322 Pettit V. Hamlyn, 43 Wis. 314 586 Petty V. Mailer, 15 B. Mon. 604 106, 117, 288 Peyer v. Parker, 10 S. C. 464 798 Peyton v. Rose, 41 Mo. 257 89, 98, 504 Pfiffner v. Krapfel, 28 Iowa, 27 557, 560 Pfister V. Watle, 56 Cal. 43 463 Pfohl V. Simpson, 74 N. Y. 137 300, 309 Phalen v. Dingee, 4 E. D. Smith, 379 362, 456 Pharis v. Carver, 13 B. Mon. 236 534 Phelps V. Hughes, 1 La. An. 320 473 V. Wait, 30 N. Y. 78 363, 367 Phillipi V. Thompson, 8 Oreg. 428 726 Phillips V. Gorham, 17 N. Y. 270 83, 86, 99, 100, 112, 129, 501, 520 Phillips V. Jarvis, 19 Wis. 204 741 V. Van Schaick, 37 Iowa, 229 169, 616 Phillipson v. Gatty, 6 Hare, 26 313 Phoenix v. Lamb, 29 Iowa, 352 659 Phcenix Bank o. Donnell, 40 N. Y. 410 251, 751 Pickering v. Miss. Val. Nat. Tel. Co., 47 Mo. 457 491, 493 Pickersgill v. Lahens, 15 Wall. 140 358 Pico V. Cuyas, 47 Cal. 174 130 Pier V. Finch, 29 Barb. 170 744 V. Fond du Lac, 38 Wis. 470 325, 349 V. Heinrichoffen, 52 Mo. 333 557, 560, 615 Pierce v. Carey, 37 Wis. 232 140, 617, 620 V. Faunce, 47 Me. 507 424 V. Milwaukee, &c. Co., 38 Wis. 253 320, 416 Piercy v. Sabin, 10 Cal. 22 743 Pierson v. Milwaukee, &c. R. R., 45 Iowa, 239 641 V. Robinson, 3 Swanst. 139 431 Pike V. King, 16 Iowa, 49 761 Pinckney v. Keyler, 4 E. D. Smith, 469 799 Pine Valley v. Unity. 40 Wis. 682 219, 586 Piser V. Stearns, 1 Hilt. 86 827 Pitcher v. Hennessey, 48 N. Y. 415 115 Pittsburgh, &c. R. R. v. Keller, 49 Ind. 211 576 V. Moore, 33 Ohio St. 384 577 V. Nelson, 51 Ind. 150 586 V. Theobald, 51 Ind. 239 587 Plath V. BoansdorfF, 40 Wis. 107 740 Platner v. Patchin, 19 Wis. 333 380 Piatt V. Jante, 35 Wis. 629 349 V. Stout, 14 Abb. Pr. 178 184 Poehlman v. Kennedy, 48 Cal. 201 475 Polster V. Rucker, 16 Kan. 115 608 Pomeroy v. Benton, 57 Mo. 531 602, 604, 605 Pond V. Davenport, 45 Cal. 225 750 V. Waterloo Agrio. Works, 50 Iowa, 593 345 Pont V. Davis, 35 Wis. 631 804 Poole V. Gerrard, 6 Cal. 71 295 V. Marsh, 8 Sim. 528 305 Poor V. Clarke, 2 Atk. 515 305, 530, 531 Pope II. Cole, 55 N. Y. 124 357, 358 V. Melone, 2 A. K. Marsh. 239 305 Port V. Russell, 36 Ind. 60 685 Porter v. Bleiler, 17 Barb. 149 263 u. Fletcher, 25 Minn. 493 250, 271 V. Garrissomio, 51 Cal. 559 476 Portland v. Baker, 8 Oreg. 356 586 Postlewaite v. Howes, 3 Iowa, 365 405 Potter V. Earnest, 45 Ind. 416 639, 755 V. Ellice, 48 N. Y. 321 340, 420 V. PliiUips, 44 Iowa, 353 404, 432 Pottgieser v. Dorn, 18 Minn. 204 676 Powell V. Finch, 5 Duer, 666 463, 464 V. Powell, 48 Cal. 234 362, 451, 457 u. Ross, 4 Cal. 197 393, 401 TABLE OF CASES CITED. Ivii Powers V. Armstrong, 35 Ohio St. 357 726, 746 V. Bumcratz, 12 Ohio St. 273 249 Powis V. Smith, 5 B. & A. 861 229 Pratt V. Menltens, 18 Mo. 158 840 V. Radford, 52 Wis. 114 268 Prentice v. Janssen, 7 Hun, 86 499 Presb. Soc. v. Beach, 8 Hun, 644 213, 215 Preston v. Roberts, 12 Bush, 570 586, 729 Prettyman v. Supervisors, 19 111. 406 174 Price V. Grand Rapids, &c. R. R., 18 Ind. 137 728 V. Price, 75 N. Y. 244 186 V. Sanders, 60 Ind. 310 641 Prindle v. Aldrich, 13 How. Pr. 466 628 u. Caruthers, 15 N. Y. 425 602 Prior V. Madigan, 51 Cal. 178 676 Pritchard v. Hicks, 1 Paige, 270 310, 410 Proctor V. Baker, 15 Ind. 178 390, 399 «. Cole, 66 Ind. 576 604 V. Rief , 52 Iowa, 692 614 Prost V. More, 40 Cal. 347 691, 749 Prouty V. Eaton, 41 Barb. 409 771, 777 u. L. S. &c. R. R., 85 N. Y. 272 463 V. Swift, 51 N. Y. 594 622 Pruyn v. Black, 21 N. Y. 300 455 Pugh V. Currie, 5 Ala. 446 310 V. Ottenheimer, 6 Oreg. 231 752 Pugsley V. Aikln, 11 N. Y. 494 503 Pullen e. Heron Min. Co., 71 N. C. 567 398 Purnell v. Vaughan, 80 N. C. 46 843 Purple V. Hudson R. R. R., 4 Duer, 74 185 Putnam v. Bicknell, 18 Wis. 333 288 V. Ross, 55 Mo. 116 434 V. Tennyson, 60 Ind. 456 379, 668 V. Wise, 1 Hill, 234 631, 632 Pyncent v. Pyncent, 3 Atk. 671 316 Q- Quaid V. Cornwall, 13 Bush, 601 643 Quassaic Bank v. Waddell, 3 N. Y. S. C. 680 376 Quebec Bank v. Weyand, 30 Ohio St. 126 113, 121, 777 Quigley v. Merritt, 11 Iowa, 147 761 QuiUen v. Arnold, 12 Ner. 234 173, 533, 540 Quin V. Lloyd, 41 N. Y. 349 714, 741 V. Moore, 15 N. Y. 4-32 182 Quinn v. Smith, 49 Cal. 163 836 Quinney v. Stockbridge, 33 Wis. 505 578 Quintard v. Newton, 5 Robt. 72 618 R. Bacine Bank v. Keep, 13 Wis. 209 824, 826 Racouillat . Howe, 28 Iowa, 250 537 V. Newton, 22 Minn. 541 121, 832 V. Pixley, 26 Minn. 482 608 0. Robertson, 46 Mo. 580 89, 127 V. Stryker, 12 Abb. Pr. 47 406 Reeder v. Say re, 70 N. Y. 180 268, 629 Reedy v. Smith, 42 Cal. 245 500 Rees V. Cupp, 59 Ind 566 604 Reeve i'. Fraker, 32 Wis. 243 583, 602 Reeves v. KimbaU, 40 N. Y. 299 189, 190, 192 Reid I'. Evergreens, 21 How. Pr. 319 441, 443 V. Gifford, Hopk. 416 322 V. Sprague, 72 N. Y. 457 190 Reilly v. Rucker, 16 Ind. 303 840 Reinhardt u. Wendeck, 40 Mo. 577 429 Remillard v. Prescott, 8 Oreg. 37 752 Remington v. King, 11 Abb. Pr. 278 840 Renshaw v. Taylor, 7 Oreg. 316 396 Reubens v. Joel, 13 N. Y. 448 ^ 73, 74 Reugger v. Lindenberger, 53 Mo. 364 285 Revalk v. Kraemer, 8 Cal. 66 380, 402 Revelle v. Claxon, 12 Bush, 558 608 Reynolds v. Hosmer, 45 Cal. 616 265 V. Lounsbury, 6 Hill, 634 660 Reynoldson v. Perkins, Ami). 564 426 Rhoads v. Booth, 14 Iowa, 575 279 Rhode V. Green, 26 Ind. 83 685, 726 Rliodes V. Alameda Co., 52 Cal. 350 586 Ricard v. Sanderson, 41 N. Y. 179 167, 169 Eice V. Hall, 41 Wis. 453 434 V. O'Connor, 10 Abb. Pr. 362 837 Iviii TABLE OF CASES CITED. Rice V. Savery, 22 Iowa, 470 167, 168, 170, 216, 276 u. Smith, 9 Iowa, 570 174 Riggs V. Am. Tract Soc, 84 N. Y. 330 748 Rigsbee v. Trees, 21 Ind. 227 500 Richards v. Cooper, 5 Beav. 304 400 V. Darly, 34 Iowa, 427 202 Richardson v. Bates, 8 Ohio St. 257 117 V. Hittle, 31 Ind. 119 731 V. Hoole, 13 Nev. 492 608 V. Hulbert, 1 Anst. 65 411 u. Means, 22 Mo. 495 77, 78, 104 V. Spencer, 18 B. Mon. 450 314 V. Steele, 9 Neb. 483 727 Richmond v. Dubuque, &c. R. R., 33 Iowa, 422 88, 106 Richmond, &o. T. Co. v. Rogers, 7 Bush, 532 77, 135, 138 Ricliter u. Poppenliausen, 42 N. Y. 373 357 Richtmeyer v. Remsen, 38 N. Y. 206 181, 745 Richtmyer v. Richtmyer, 50 Barb. 55 249, 311, 502 Rickard v. Kohl, 22 Wis. 506 837 Ricker v. Pratt, 48 Ind. 73 110, 843 Ricketson v. Richardson, 19 Cal. 331 840 Riddick v. Walsh, 15 Mo. 538 389, 401 Ridenour v. Mayo, 29 Ohio St. 138 651 V. Wherritt, 30 Ind. 485 413, 415 Riemer v. Johnke, 37 Wis. 258 491 Riley v. Corwin, 17 Hun, 597 753 V. Schawacker, 50 Ind. 592 371 Rinehart v. Rinehart, 2 McCarter, 44 314 Rindge v. Baker, 57 N. Y. 209 133 Ring V. Ogden, 44 Wis. 303 830 Rippstein v. St. Louis, &c. Ins. Co., 57 Mo. 86 759 Riser v. Snoddy, 7 Ind. 442 728 Risley v. Wightman, 13 Hun, 163 250 Robaok v. Powell, 36 Ind. 515 664 Robbins v. Cheek, 32 Ind. 328 170 V. Codman, 4 E. D. Smith, 325 643 V. Deverill, 20 Wis. 142 212 . Smith, 88 182 Starr v. Cragin, 24 Hun, 177 690 Starbuck v. Dunklee, 10 Minn. 173 669 State V. Bailey, 7 Iowa, 390 174 V. Bartlett, 68 Mo. 581 608 V. Cason, 11 S. C. 392 608 V. C. P. R. R., 9 Nev. 79 73-3 V. Ciiamberlin, 54 Mo. 338 729 V. Co. Judge, 7 Iowa, 186 174 y. Dubuelet, 22 La. An. 365 473 V. Graliam, 23 La. An. 402 473 V. J. P. & M. R. R., 16 Kla. 201 345, 384 V. Johnson, 52 Ind. 197 152, 166 V. Kruttschnitt, 4 Nev. 178 524 V. Meagher, 44 Mo. 356 ' 121 fc. Milwaukee, &c. K. R., 44 Wis. 579 640 V. Moore, 19 Mo. 369 217 V. Newlin, 69 Ind. 108 657 V. North. Belle Min. Co., 15 Neb. 385 604 V. Orwig, 34 Iowa, 112 349, 351 V. Russell, 5 Neb. 2U 675 V. Sappington, 68 Mo. 454 250 V. Williams, 48 Mo. 210 750 State V. Y. J. S. M. Co., 14 Nev. 220 639 Steadman v. Guthrie, 4 Met. (Ky.) 147 276 Stearns v. Martin, 4 Cal. 227 799 Stebbins v. Goldthwaite, 31 Ind. 159 728 Steele v. Etheridge, 15 Minn. 501 777 Steeple v. Downing, 60 Ind. 368 727 Stehman v. CruU, 26 Ind. 436 128 Steinhart v. Pitcher, 20 Minn. 102 827 Stepank v. Kula, 36 Iowa, 563 279, 291 Stephens v. Magor, 25 Wis. 533 502 Stephenson v. Ballard, 50 Ind. 176 586, 588, 591 Stem V. Katz, 38 Wis. 136 587 Sternberger v. McGovern, 56 N. Y. 12 101, 502 Stetlon V. Chicago, &e. R. R., 49 Wis. 609 608 Stevens v. Brooks, 23 Wis. 196 448, 626 V. Campbell, 21 Ind. 471 390, 395 V. Chance, 47 Iowa, 602 536, 541 V. Mayor, 84 N. Y. 296 85, 96 V. Parish, 29 Ind. 260 379 V. Thompson, 5 Kan. 305 742 Stewart v. Beale, 7 Hun, 405 320 V. Carter, 4 Neb. 564 96, 499 V. Erie, &c. Co., 17 Minn. 372 442, 443 V. Hoag, 12 Ohio St. 623 725, 745 V. Patrick, 68 N. Y. 450 289 Stich V. Dickinson, 38 Cal. 608 469, 472 Still V. Hall, 20 Wend. 51 769 Stilwell V. Chappell, 30 Ind. 72 840 V. Hurlbert, 18 N. Y. 374 217 V. Kellogg, 14 Wis. 461 502 V. McNeely, 1 Green. Ch. 305 313 Stimson v. White, 20 Wis. 562 288 Stitt V. Little, 63 N. Y. 427 618, 620 Stix V. Matthews, 63 Mo. 371 586 St. John V. Griffith, 2 Abb. Pr. 198 172, 609 .;. Hardwick, 11 Ind. 251 465 V. Pierce, 22 Barb. 362 525 St. Louis, &c. R. R. u. Mathias, 50 Ind. 65 586 Stockett V. Watkins, 2 Gill & J. 326 632 Stockton V. Stockton, 73 Ind. 510 777 Stockton, Bk. of v. Howland, 42 Cal. 129 358 Stoddard v. Treadwell, 26 Cal. 294 824, 826 Stoddert v. Ward, 31 Md. 562 174 Stokes V. Geddes, 46 Cal. 17 578 V. Scott Co., 10 Iowa, 166 174 Stoney. Buckner, 12 Sm. &M. 73 420 V. Pouse, 3 Cal. 292 104, 130 V. Lewman, 28 Ind. 97 668 Stone's Adm'r v. Powell, 13 B. Mon. 342 740 Storm V. Davenport, 1 Sandf. Ch. 135 411 Stout V. Noteman, 30 Iowa, 414 363 V. St. Louis, &c. Co., 52 Mo. 342 593, 596 Stowell V. Drake, 3 Zabr. 310 229 V. Eldred, 39 Wis. 614 614, 788, 804 V. Otis, 71 N. Y. 36 727, 732 Streatfield v. Halliday, 3 T. R. 782 331 Street v. Beal, 16 Iowa, 68 391, 399, 403, 437 V. Bryan, 65 N. C. 619 827 Streeter v. Chicago, &c. R. R., 40 Wis. 294 608, 614 Strickland v. Strickland, 12 Sim. 463 410 Striker v. Mott, 2 Paige, 387 304 Stringfellow v. Alderson, 12 Kan. 112 660 Stringfield i>. Graft, 22 Iowa, 438 307 Stroebe v. Fehl, 22 Wis. 347 624 Stronach v. Stronach, 20 Wis. 129 303 Strong V. Clem, 12 Ind. 37 163, 184 V. Downing, .34 Ind. 300 371, 340 V. Hoos, 41 Wis. 659 600 Stroup V. State, 70 Ind. 495 611, 614 Struman v. Robb, 37 Iowa, 311 119 Strunk v. Smith, 36 Wis. 631 482 Stucker c/. Stucker, 3 J. J. Marsh. 301 305 Stuple V. Downing, 60 Ind. 478 175 Sturges V. Burton, 8 Ohio St. 215 640 Sturm V. Atlantic Mut. Ins. Co., 63 N. Y. 77 216 Sturman v. Stone, 31 Iowa, 115 585 Sturtevant v. Brewer, 9 Abb. Pr. 414 463 Suber v. Allen, 13 S. C. 317 541 Suiter v. Turner, 10 Iowa, 517 399 Sullivan v. Byrne, 10 S. C. 122 788 c. Davis, 4 Cal. 291 534 V. Sullivan, 4 Hun, 198 304 V. Sullivan Co., 14 S. C. 494 533 Sully V. Goldsmith, 49 Iowa, 690 729 Summers v. Parish, 10 Cal. 347 171 «. Hoover, 42 Ind. 153 726 V. Hutson, 48 Ind. 228 468, 469 V. Vaughan, 35 Ind. 323 668 Sumner v. Coleman, 20 Ind. 486 390, 393 Sunman v. Brewin, 52 Ind. 140 374 TABLE OF CASES CITED. Ixiii Supervisors v. Decker, 30 Wis. 624 96, 99, 103, 617, 621, 622, 627, 628 V. Deyoe, 77 N. Y. 219 424 V. Hall, 42 Wis. 59 219 V. Hubbard, 46 III. 139 174 V. Kirby, 25 Wis. 498 219, 584 V. O'Mally, 46 Wis. 35 641 V. Walbridge, 38 Wis. 179 884, 499, 509 Suringer v. Paddocls, 31 Arls. 528 676, 481, 604 Sussdorf V. Schmidt, 55 N. Y. 319 596, 618 Sutherland v. Carr, 85 N. Y. 105 219 Sutton V. Stone, 2 Atk. 101 426 Suydam v. Moore, 8 Barb. 358 367 Swain v. Duane, 48 Cal. 358 288 Swarthout v. Chicago, &c. K. R., 49 Wis. 625 268 Swasey v. Antram, 24 Ohio St. 87 378 Sweet V. Ingerson, 12 How. Pr. 331 508, 510, 520, 538 V. Mitchell, 15 Wis. 641 626 V. Tuttle, 14 N. Y. 465 740, 759 Sweezey v. Collins, 36 Iowa, 589 613 Swenson v. Cresop, 28 Ohio St. 668 733, 843 Swift V. Ellsworth, 10 Ind. 205 159, 160, 170, 221, 751 V. Fletcher, 6 Minn. 550 791 V. Kingsley, 24 Barb. 541 643 V. Swift, 46 Cal. 266 218 Switz V. Black, 45 Iowa, 597 475 Tabler v. Wiseman, 2 Ohio St. 207 430 Tabor v. Mackee, 58 Ind. 290 804, 843 Tabue v. McAdams, 8 Bush, 74 352 Taggart v. Risley, 8 Oreg. 306 665 Taintor v. Prendergast, 3 Hill, 72 172 Tait V. Culbertson, 57 Barb. 9 373 Talbert v. Singleton, 42 Cal. 390 117 Tallman v. Hollister, 9 How. Pr. 508 467 Tanguay v. Felthouser, 44 Wis. 30 629 Tanner v. Niles, 1 Barb. 560 428 Tarbox v. Supervisors, 34 Wis. 556 753 Tarwater v. H. & St. J. R. R., 42 Mo. 193 ' 831 Tasker v. Small, 3 My. & Cr. 63 316, 419 Tassell w. Smith, 2 De G. & J. 713 308 Tate V. Ohio, &c. R. R., 10 Ind. 174 170, 245, 322 Taylor v. Adair, 22 Iowa, 279 469, 471 V. Boedicker, 22 La. An. 79 473 V. Collins, 51 Wis. 123 250 V. Fickas, 64 Ind. 167 282 V. Mayor, 82 N. Y. 10 836 V. Mayor, 20 Hun, 292 199 V. Root, 4 Keyes, 335 795 V. Stowell, 4 Mete. (Ky.) 175 840 V. Thompson, 42 111. 9 174 Teague v. Fowler, 56 Ind. 569 804, 810 Teal V. Woodworth, 3 Paige, 470 428 Tell V. Beyer, 38 N. Y. 161 643, 743 Ten Broeck v. Orchard, 74 N. C. 409 113, 116 Teudesen v. Marshall, 3 Cal. 440 535 Ten Eyck v. Casad, 16 Iowa, 524 391, 399 V. Mayor, 16 Iowa, 486 174 Tennant v. Pfister, 61 Cal. 511 250, 261 Tenney v. State Bank, 20 Wis. 152 102, 624 Terhune v. Terhune, 40 How. Pr. 258 806 Terrell v. Walker, 66 N, C. 244 769 Terret v. Sharon, 34 Conn. 105 174 Territory v. Cox, 3 Mont. 197 173 V. Hildebrand, 2 Mont. 426 344 Terry !■. Hammond, 47 Cal. 32 378 V. Musser, 68 Mo. 477 580 TerwiUiger v. Wheeler, 35 Barb. 620 171 Tewsbury v. Bronson, 48 Wis. 581 629 K. Schulenberg,41 Wis.584 644 Texier v. Gouin, 6 Duer, 389 714, 741 Thatcher v. Cannon, 6 Bush, 541 840 V. Candee, 33 How. Pr. 145 304, 313 V. Haun, 12 Iowa, 303 435 V. Heisey, 21 Ohio St. 668 616 Thomas v. Bennett, 56 Barb. 197 223 V. Dunning, 5 De 6. & S. 618 306 I). Kennedy, 24 Iowa, 397 424 u. Nelson, 69 N. Y. 118 613 . McPike, 21 Cal. 215 690 V. Strange, 5 Ga. 22 309 V. Stewart, 3 Barb. 40 198, 201 Wells, Fargo, & Co. o. Coleman, 53 Cal. 416 586 Welsh V. Darragh, 52 N. Y. 590 617 West V. Crawfordsville, &c. Co., 19 Ind. 242 727 V. His Creditors, 8 Rob. 123 473 V. Moody, 33 Iowa, 137 837, 840 V. Randall, 2 Mason, 181 310, 312 Westcott V. Ainswortli, 9 Hun, 53 618, 620 Wescott V. Brown, 13 Ind. 88 685, 726 V. Fargo, 61 N. Y. 542 416 Western, &c. Co. v. JEtna Ins. Co., 40 Wis. 373 249 Western Bank v. Sherwood, 29 Barb. 383 189 Western R. R. v. Nolan, 48 N. Y. 513 166, 301 313 W. U. T. Co. V. Fenton, 52 Ind. 1 ' 657 V. Meek, 49 Ind. 53 685 Westervelt v. Ackley, 62 N. Y. 505 836, 843 Westfall V. Dungan, 14 Ohio St. 276 793 West Midland R. Co. v. Nixon, 1 H. & M. 176 316 Weston V. Keighley, Finch, 82 304 V. Lumley, 33 Ind. 486 760 V. McMuUin, 42 Wis. 567 629 V. Weston, 46 Wis. 1.30 378 Wetherell v. Collins, 3 Mad. 256 436 Wetmore v. San Francisco, 44 Cal. 294 155, 161, 712, 722, 728, 742 Weyburn v. White, 22 Barb. 82 183, 186 Weymouth v. Boyer, 1 Ves. 416 312 Whaley v. Dawson, 2 Sch. & Lef . 370 528 Whalen v. Aldrich, 8 Minn. 346 777, 824, 826 Wheable v. Reddick, 79 N. C. 521 804, 810 Wheatleyi). Strobe, 12 Cal. 92 154 Wheeler v. Billings, 38 N. Y. 268 688, 708, 709 Wheeler v. Bottom, 54 Cal. 302 369 V. Floral Mill Co., 9 Nev. 254 578 Wheelock v. Lee, 64 N. Y. 242 96, 106, 180 V. Pacific, &c. Gas Co., 51 Cal. 223 836 Whitaker v. Whitaker, 52 N. Y. 368 377 Whitbeck v. Skinner, 7 Hill, 53 769 White V. Allen. 3 Greg. 103 732 V. Cox, 46 Cal. 169 492 V. Hawkins, 16 La. An. 25 473 V. Joy, 13 N. Y. 88 556 V. Lyons, 42 Cal. 279 83, 84, 102, 557, 574 V. Miller, 7 Hun, 427 371, 740 V. Moses, 11 Cal. 69 751 V. Parker, 8 Barb. 48 223 V. Phelps, 14 Minn. 27 163 V. San Rafael, &c. R. R., 54 Cal. 176 657 „. Smith, 4 Kan. 183 714, 742 V. Spencer, 14 N. Y. 247 660, 732 Whitehill v. Shickle, 48 Mo. 537 131 Whiteoak v. Oskaloosa, 44 Iowa, 512 251 White Sulphur Springs Co. v. Holly, 4 W. Va. 597 174 Whiting V. Root, 52 Iowa, 292 87, 100, 102 Whitman v. Keith, 18 Ohio St. 134 164, 175 V. Watry, 44 Wis. 491 600 Whitney v. Allaire, 1 N. Y. 305 769 t'. Chicago, &c. R. R., 27 Wis. 327 640 TABLE OF CASES CITED. Ixvii Whitney v. McKinney, 7 Johns. Ch. 144 418, 437 Whitsett V. Kershow, 4 Col. 419 407 Whitted i: Nash, 66 N. C. 590 463 AVhittemore v. Watts, 7 Rob. 10 473 Whittenhall v. Korber, 12 Kan. 618 355 Whitworth «. Davis, 1 Ves. & B. 550 530 Widener v. State, 45 Ind. 244 685 Wiebbold v. Hermann, 2 Mont. 609 586 Wigand v. Sickel, '3 Keyes, 120 634 Wiggins V. McDonald, 18 Cal. 126 83, 84, 166, 167, 168 Wilbour V. Hill, 72 N. Y. 36 737 Wilcox V. Hausch, 57 Cal. 139 600 V. McCoy, 21 Ohio St. 655 503 Wild V. Supervisors, 9 How. Pr. 315 220 Wildbahn v. Robidoax, 11 Mo. 659 725 Wilde V. Haycraft, 2 Duval, 309 453 Wilder v. Boyntou, 63 Barb. 547 787, 824, 826 Wiles V. Lambert, 66 Ind. 492 604, 643 V. Suydam, 6 N. T. Sup. Ct. 292 491, 493, 509, 526, 538 Wiley V. Starbuck, 44 Ind. 177 213 Wilkes V. Morehead, Stanton's Code, 31, n. 166 Wilkerson v. Rust, 57 Ind. 172 641 Wilkins v. Batterman, 4 Barb. 47 204 V. Fry, 1 Meriv. 262 298, 314, 530 V. Moore, 20 Kan. 538 600 V. Stidger, 22 Cal. 231 594 Wilkinson v. Fowkes, 9 Hare, 193 385 ... Hall, 1 Bing. N. C. 713 229 V. Henderson, 1 My. & K. 582 358 V. Parish, 3 Paige, 653 428 Willard v. Estham, 15 Gray, 328 379 V. Reas, 26 Wis. 540 249, 254, 261, 343, 345, 493 Wilier V. Manby, 51 Ind. 169 727 Willett V. Porter, 42 Ind. 250 341 V. Willett, 3 Watts, 277 632 Williams v. Allen, 29 Beav. 292 414 ^. Bankhead, 19 Wall. 563 384 V. Boyd, 75 Ind. 286 845 V. Brown, 2 Keyes, 486 155, 198, 202, 840 V. Evans, 6 Neb. 216 651 V. Ewing, 31 Ark. 229 407 V. Franklin, &c. Ass., 26 Ind. 310 727 V. Hayes, 5 How. Pr. 470 93 V. Lowe, 4 Neb. 382 99, 541 V. Meeker, 29 Iowa, 292 393, 395 u. Norton, 3 Kan. 295 153, 161, 185 V. Peabody, 8 Hun, 271 499, 536 V. Peinny, 25 Iowa, 436 174 V. Rogers, 14 Bush, 776 355 V. Scott, 11 Iowa, 475 857 V. Slote, 70 N. Y. 601 85, 100, 102, 104 V. Smith, 22 Wis. 594 322 V. Smith, 49 Me. 564 437 V. Thorn, 11 Paige, 459 190 V. Van Tuyl, 2 Ohio St. 336 430 V. Weiting, 3 N. Y. Sup. Ct. 439 838 V. Young, 21 Cal. 227 187 Williams Mower, &o. Co. v. Smith, 33 Wis. 630 727 Williamson v. Dodge, 5 Hun, 497 377 V. Brown, 15 N. Y. 354' 204 Willie V. Lugg, 2 Edm. 78 308 Wills V. Pacific R. R., 35 Mo. 164 589 V. Simmonds, 8 Hun, 189 371, 380 V. Slade, 6 Ves. 498 304 V. Wills, 34 Ind. 106 557, 560, 589 Willson V. Cleaveland, 30 Cal. 192 760, 761 Wilson V. Bell, 17 Minn. 61 403 V. Castro, 31 Cal. 420 339, 526, 529 u. Clark, 20 Minn. 367 161, 678 •y. Henry, 40 Wis. 594 349 V. Houston, 76 N. C. 375 223, 271 -,.. Madison, 55 Cal. 5 845 V. Mineral Point, 39 Wis. 160 436 V. Moore, 1 My. & K. 126 303 V. Noonan, 35 Wis. 321 739 u. Root, 43 Ind. 486 685 u. Runkel, 38 Wis. 526 790, 836 u, Thompson, Stanton's Code 60 493, 639 Wiltman v. Watry, 37 Wis. 238 692 Wiltsie V. Northam, 3 Bosw. 162 791 Winchester v. Mid Hants R. Co., L. R. 5 Eq. 17 316 Wing V. Davis, 7 Greenl. 31 305 V. Dugan, 8 Bush, 583 693 Wingard v. Banning, 39 Cal. 543 434 Winona, &c. R. E. v. St. Paul, &c. R. R., 23 Minn. 359 173 Winslow V. Clark, 47 N. Y. 261 403, 437 u. Dousman, 18 Wis. 456 406, 501 V. Minn., &c. R. R., 4 Minn. 313 413 i,. Urquhart, 39 Wis. 260 434 V. Winslow, 52 Ind. 8 113, 804, 845 Winter v. Winter, 8 Nev. 129 602 Wintermute v. Cooke, 73 N. Y. 107 104 Winters v. Rush, 34 Cal. 136 215 Wiser v. Blachly, 1 Johns. Ch. 437 385, 410, 463 Wisner v. Ocumpaugh, 71 N. Y. 113 106, 110 Wiswell V. TefEt, 5 Kan. 263 726 Withers v. Bircham, 3 B. & C. 254 227, 228 Wittman v. Watry, 37 Wis. 228 729 Wolcott V. Ensign, 53 Ind. 70 742 Wolf V. Banning, 3 Minn. 202 287, 377, 381, 389, 400 V. H., 13 How. Pr. 84 '780, 791 V. Schofield, 38 Ind. 175 586, 694, 685 WoIfE V. Stoddard, 25 Wis. 603 584 Womble V. Traps, 77 N. C. 198 657 V. Leach, 83 N. C. 84 587 Wood V. Anthony, 9 How. Pr. 78 491 y. Bangs, 1 Dakota, 179 174 u. Brown, 34 N. Y. 337 408 V. Cullen, 13 Minn. 394 130 V. Dummer, 3 Mason, 315 441 V. Fish, 63 N. Y. 245 358 V. Luscomb, 23 Wis. 287 363 V. Mayor, 73 N. Y. 656 175 V. Olney, 7 Nev. 109 345, 641 Ixviii TABLE OF CASES CITED. Wood V. Orford, 52 Cal. 412 377, 378 V. Ostram, 29 Ind. 177 709, 751 K.Perry, a Barb. 114 189 V. White, 4 My. & Cr. 470 316, 317, 419 V. Williams, 4 Mad. 186 301 Woodbury v. Delap, 1 N. T. S. C. 20 519, 621 ■B. Deloss, 65 Barb. 501 183 Wooden v. Waffle, 6 How. Pr. 145 92, 555, 574 Woodford v. Leavenworth, 14 Ind. 311 77, 78 Woodrufe V. Garner, 27 Ind. 4 804, 813, 833, 885 Woodward v. Anderson, 9 Bush, 624 282 V. Laverty, 14 Iowa, 381 840 V. Wood, 19 Ala. 213 305, 313 Woodworth v. Campbell, 5 Paige, 518 305 V. Knowlton, 32 Cal. 164 678 0. Sweet, 44 Barb. 268 877 Woody V. Jordan, 69 N. C. 189 670, 838 Woolsey v. Brown, 74 N. Y. 82 377 V. Williams, 34 Iowa, 413 579, 615 Wooster v. Chamberlin, 28 Barb. 602 341, 354 Worrall v. Munn, 38 N. Y. 137 534 Worth V. Fayetteville, 1 Wins. 70 174 Worthey v. Hammond, 13 Bush, 510 643 Wotten V. Copeland, 7 Johns. Ch. 140 304, 428 Wrigglesworth v. Wrigglesworth, 45 Wis. 255 103 Wright V. Bacheller, 16 Kan. 259 345, 760 V. Bundy, 11 Ind. 398 308, 400 V. Conner, 34 Iowa, 240 ' 492 V. Delafield, 25 ISf. Y. 266 788, 805 V. Hooker, 10 N. Y. 51 624 V. Howell, 35 Iowa, 288 399 i;. Johnson, 50 Ind. 454 614 «. McCormick, 67 N. C. 27 600 V. Post, 3 Conn. 142 226 i>. Schmidt, 47 Iowa, 233 685 V. Stprrs, 32 N. Y. 691 250 V. Tinsley, 30 Mo. 389 215 V. White, 14 La. An. 590 473 V. Wilcox, 19 Wend. 343 367 V. Wright, 54 N. Y. 437 83, 84, 290, 377, 751 V. Wright, 72 Ind. 149 222 Wygand v. Sichel, 3 Keyes, 120 577 Wyman v. Remond, 18 How. Pr. 272 628 Wynn v. Cory, 43 Mo. 301 89, 98, 504 Xenia Branch B'k v. Lee, 7 Abb. Pr. 372 816, 834 Yale V. Dederer, 18 N. Y. 265 376, 379 V. Hoopes, 12 La. An. 460 ' 473 Yancy v. Teter, 39 Ind. 305 668 Yates V Compton, 2 P. Wms. 308 314 V. Froot, 12 Johns. 1 229 V. Hoffman, 5 Hun, 113 358 Yateman v. Estill, 3 La. An. 222 473 Yeates v. Walker, 1 Duy. 84 490 Yopst V. Yopst, 51 Ind. 61 288 York V. Wallace, 48 Iowa, 305 614 Yorks V. Peck, 14 Barb. 644 227, 333 Young V. Caltett, 6 Duer, 437 677 .Newton,46Barb. 173, 174. GENERAL NATURE OF THE CIVIL ACTION. 89 Missouri courts. In those cases where the plaintiff holds the equitable title to land, while the legal title is in the defendant by means of a fraudulent conveyance, it has been frequently held that the former must first obtain a decree in equity, cancelling the outstanding deed, and must then resort to a separate action of ejectment to recover possession of the land. A vendee of land has also been required to proceed in two distinct actions, — the first equitable, to compel a specific performance, and the second legal, to obtain possession. The plaintiff was turned over to a second legal action in order to complete his remedy, because, as the court repeatedly insisted, possession of land can never be awarded by a decree in equity.^ The Missouri court has recently receded, in part at least, from this extreme position, and is plainly tending towards a complete harmony with the doctrines which are accepted in other States.^ A simple criterion has been suggested by which to determine the nature of the action. If the facts alleged in the complaint or petition would entitle the pla,intiff to both legal and equitable relief, the prayer for judg- ment — that is, the nature of the remedj' demanded — might be a certain test by which the character of the suit should be known.3 This suggestion has not, however, been followed in other cases. § 73. To recapitulate the results of the foregoing discussion : The courts have, with few exceptions, accepted the language of the code in its simplicity, and have given to it a reasonable mean- ing ; they have acknowledged that the legislature intended to abolish, and has abolished, all the features which distinguish legal and equitable actions from each other, and has established a single action for the pursuit of all remedies ; they have settled the doctrine that by the use of this single action neither the primary rights nor the remedial rights of litigant parties are affected or in any manner, modified, since they do not depend upon matters connected with the form or external features of 1 Meyers v. Field, 37 Mo. 434, 441 ; 45 Mo. 580 ; Rutherford v. Williams, 42 Maguire v. Vice, 20 Mo. 429 ; Curd o. Mo. 18, 23 ; Fithian v. Monks, 43 Mo. 502, Lackland, 43 Mo. 139; Wynn u. Corry, 517; Magwire v. Tyler, 47 Mo. 115, 127. 43 Mo. 301 ; Gray v. Payne, 43 Mo. 203; ^ Henderson o. Dickey, 50 Mo. 161, Bobb V. Woodward, 42 Mo. 482, 487 ; Pey- 165, per Wagner J. ton V. Rose, 41 Mo. 257, 262'; Gott v. a Gillett u. Treganza, 13 Wis. 472, Powell, 41 Mo. 416 ; Moreau v. Detche- 475, per Dixon C. J. Followed in Low- mendy, 41 Mo. 431 ; Walker's Adm'r v. ber v. Connil, 36 Wis. 176 ; Harrall v. Walker, 25 Mo. 367 ; Reed v. Robertson, Gray, 10 Neb. 186 90 CIVIL REMEDIES. the action, and that among the matters which are thus con- nected with the form are the setting forth or statement of the cause of action or defence in the pleadings, and the demand of relief or prayer for judgment. A mistake or misconception in respect to the action being called legal or equitable does not defeat the plaintiff, but at most may require a trial before a properly constituted court. One fundamental principle controls the administration of justice by means of this common civil action, and this principle may be formulated in the following manner : The object of every action is to obtain a judgment of the court sustaining or protecting some primary right or enforc- ing some primary duty ; every such primary right and duty re- sults from the operation of the law upon certain facts, in the experience of the person holding the right or subjected to the duty ; every wrong or violation of this primary right or duty consists in certain facts, either acts or omissions of the person committing the wrong. A statement, therefore, of the facts from which the primary right or duty arises, and also of the facts which constitute the wrong or violation of such primary- right or duty, shows, and must of necessity show, at once a com- plete cause of action ; that is, the court before which this state- ment is made can perceive from it the entire cause of action, the remedial right flowing therefrom, and the remedy or remedies which should be awarded to the injured party. All actions can be and should be constructed in the manner thus described ; and, if so, they would conform to the single and common principle announced by the reformed method of procedure. Whether the rights and duties are legal or equitable, whether the remedies appropriate are legal or equitable, whether the facts are simple and few or complex and numerous, does not in the slightest degree affect the application and universality of this principle ; it is the central conception of the new system, the corner-stone upon which the whole structure is erected. § 74. It is not my purpose in the present section to follow this general principle in its application to the various features and phases of an action ; to do so would be to anticipate the matter contained in several subsequent chapters. A brief allusion must be made, however, to one of these topics, or else the theory of construction finally accepted by the courts will be but partially explained, — I refer to the siabject of pleading. No single GENERAL NATURE OF THE CIVIL ACTION. 91 element of difference more sharply marked the contrast be- tween the action at law and the suit in equity under the former system than the manner in which the litigant parties in each stated their causes of action and their defences. Although it; was said that in each kind of judicial proceeding the facts con- stituting the cause of action or defence should alone he alleged, this rule was not followed in actual practice. In a common- law action the " issuable facts " only were spread upon the record. The plaintiff never narrated the exact transaction be- tween himself and the defendant from which the rights and duties of the parties arose ; he stated what he conceived to be the legal effect of these facts. Thus, if the transaction was a simple arrangement respecting the sale and purchase of goods, instead of disclosing exactly what the parties had actually done, the pleader used certain formulas expressing the supposed legal effect of what had been done, as that he had " sold and de- livered " or had " bargained and sold " the chattels ; and, if a mistake was made in properly conceiving of this legal effect, — that is, if the real facts of the transaction, as disclosed by the evidence, did not correspond with this conception of their legal effect taken by the pleader, — the plaintiff might be, and, unless permitted to amend, would be, turned out of court. On the equity side the facts as they occurred, rather than the legal aspect of or conclusions from these facts, were set forth, according to the original theory of equitable pleading. In practice this narrative was always accompanied by a detail of mere evidentiary matter, which was inserted, not because it was necessary to the statement of the cause of action, but because it was a means of obtaining admissions from the defendant, and of thus making him a witness in the cause against himself. A bill in equity had, therefore, two entirely distinct uses and offices ; it was a narrative of the facts from which the plaintiffs' rights to relief arose, and it was an instrument for obtaining evidence from the opposite party. This latter purpose, which was known as " dis- covery," the codes have expressly abolished, and have substi- tuted in its stead the more direct method of an oral examination of one party by the other, if desired, either on the trial or pre- liminary thereto. § 75. Upon the adoption of the reformed system in New York there arose at once in that State, and subsequently in other 92 CIVIL REMEDIES. commonwealths, two schools of interpretation in reference to the modes of pleading prescribed by the new procedure. One school maintained that all the distinctive features and elements of the common law and of the equity modes of pleading remained in full force, and that the legislature had simply abolished certain names and certain technical rules of mere form. This particular theory was a necessary and evident corollary of the broader principle advocated by the same school, and already explained in the present section, that the division of actions into legal andi equitable still existed, in all that pertained to their sub- stantial nature ; if actions were now, as before, legal or equitable, the most characteristic features of the two classes, that which marked their difference in the most emphatic manner, — the peculiar modes of pleading appropriate to each, — were of course preserved. In a common-law cause the pleader was to follow the coiumon-law rules of pleading, and in an equity suit the equity rules. This doctrine was asserted and was sustained with great ability and earnestness by several judges in the infancy of the system. It would be useless to cite all the reported de- cisions in which it was advocated ; and I shall only refer to a few which have always been regarded as leading.^ The other school asserted that all the distinctions between the common- law and the equity modes of pleading had been embraced within the sweeping language of the statute, and had been discarded ; that one general principle of pleading was applicable to the civil action in all cases, whatever might be the nature of the primary right it sought to maintain, or of the remedy it sought to procure. This principle, which was stated in a preceding paragraph, is simple, universal, and natural. It is merely that the pleader must narrate in a plain and concise manner the actual facts from which the riglits and duties of the parties arise, and not his conception of their legal effect, nor, on the other hand, the mere detail of evidence which ^substantiates the existence of those facts. This comprehensive principle applies 1 Rochester City Bank v. Suydam, 5 special term decisions detracts from their How. Pr. 216 ; Wooden v. Waffle, 6 How. authority ; they are not, however, qaoted Pr. 145. I cite these, because they were as precedents, but simply as illustrations pioneer cases, and in no others have the of the course of judicial action in the arguments in favor of the theory which matter of interpreting the code of pro- they maintain been presented with greater cedure. fulness and more ability. That they are GENEEAL NATURE OF THE CIVIL ACTION. 93 to all kinds of actions, to one founded upon a legal right and seeking a legal remedy, and to one founded on an equitable right and seeking an equitable remedy ; and it avoids all ques- tions and difficulties as to the " issuableness " of the matters alleged. Undoubtedly, from the very nature of the primary rights invaded and of the remedies demanded, the narrative of facts will generally be much more minute, detailed, and circum- stantial in actions brought to maintain equitable rights and to recover equitable relief than in those based upon legal rights and pursuing legal relief, but this incident does not alter or affect the principle which governs all cases ; the pleader in both cases sets out the facts which entitle him to the remedy asked, and no more ; it simply happens that legal remedies usually depend upon a few positive facts, while equitable remedies often arise from a multitude of circumstances, events, and acts, neither of which, taken by itself, would have created any right or im- posed any duty. It would be useless to incumber the page bj' a reference to all the reported cases in which this doctrine has been approved ; and I shall merely cite one or two which are leading in point of time, and which may be regarded as exam- ples of the class.^ Without entering upon any discussion of these two theories, it is enough to say that the latter one has been accepted as expressing the true intent and spirit of the new procedure, and the former has left scarcely any traces in the practical administration of justice in the great majority of the States. The forms contained in the most popular and approved text-books upon practice and pleading furnish a sure test ; and, without exception, these are all based upon the method of inter- preting the codes last described. And yet with great inconsis- tency, as it seems to me, the courts have generally held that the ancient forms of common-law pleading in assumpsit may be used in actions upon contract, especially where the contract is implied; that they sufficiently meet the requirements of the 1 Milliken v. Gary, 5 How. Pr, 272 ; the sequel tliat the Supreme Court of Williams v. Hayes, 5How. Pr. 470; Peo- Missouri stands quite alone — or at least pie V. Ryder, 12 N. Y. 433, 437. The did so until a very recent day — in its doctrine of the text was very clearly and theory of interpretation, and retains the accurately stated by Crocker J. In Bowen distinctions between legal and equitable V. Aubrey, 22 Cal. 566, 569. See contra, forms, in as marked a manner as though the remark^ of Holmes J. in Meyers v. no change had been made by the stat- Field, -37 Mo. 434, 441. It will be seen in utes. 94 CrVIL REMEDIES. codes, although they do not set out the actual facts of the trans- action from which the legal right arises. Thus, it has been decided that the count in indebitatus assumpsit for goods sold and delivered is a sufficient complaint or petition in an action to recover the price. ^ The difference between this ruling of the courts and the theory first above stated is, that according to the latter theory the common-law mode of stating a legal cause of action or defence must be followed in substance, while by the decisions referred to it may be followed in the particular classes of actions described. But even this ruling, although, as I think, a plain departure from the essential spirit of the new system, is of little practical importance ; the bar have, with almost absolute unanimity, adopted the method of stating the facts as they oc- curred, and do not attempt to aver in their stead the legal fictions of promises which are never made, or conclusions of law which are in no sense of the term actual facts. There are other important features of an action — the parties, the union of dif- ferent causes of action or defence, affirmative relief to the defend- ant, the form of the judgments, and the like — which have been greatly affected by the general provision of the statute abolishing the distinctions between legal and equitable methods, and the judicial interpi-etation given thereto ; but it is impossible to dis- cuss them in any general manner, and their particular treatment is reserved for subsequent chapters. SECTION THIRD. THE COMBINATION BY THE PLAINTIFF OF LEGAL AND EQUITABLE PRIMARY RIGHTS AND OF LEGAL AND EQUITABLE REMEDIES IN ONE ACTION. § 76. The general principles of unity developed in the preced- ing sections will now be applied to the several cases which are constantly arising in the practical administration of justice, for 1 Allen V. Patterson, 7 N. Y. 476, 478. code is directly violated, forms of cora- Some of the State legislatures hare by a plaints or petitions being sanctioned statutory enactment set forth forms of which are identical with the ancient pleading under the code, and thus made common counts, and therefore allege them regular and vahd. It is strange fiction instead of facts. See, for example that in some of these the spirit of the statutes of Indiana. UNION OF LEGAL AND EQUITABLE REMEDIES. 95 the purpose of ascertaining how far the abolition of all distinc- tions between actions at law and suits in equity has affected the process of stating causes of action, and praying for and obtaining remedies by the plaintiff. It was in this very feature of the judicial process — the stating of causes of action, and the obtain- ing of relief thereon — that the distinction spoken of was exhib- ited in the most marked manner ; and it is in this feature, therefore, that the change must be the most sweeping and radical, if the distinction has in truth been abolished. Under the former system a legal primary right, when invaded, could only be redressed by an action at law, and a legal judgment alone was possible ; while an equitable primary right must be redressed or protected in an equity suit and by an equitable remedy. A union or combination of the two classes, either wholly or partially, in one action was unknown, unless permitted by some express statute, and was utterly opposed to the theory which separated the two departments of the municipal law. The new system not only permits but encourages — and in its spirit, I believe, requires — such a union and. combination ; for one of itS elementary notions is that all the possible disputes or controversies arising out of, or connected with, the same subject-matter or transaction should be settled in a single judicial action.^ § 77. The possible modes or forms of the union or combination by the plaintiff of legal and equitable primary rights and remedies in one suit are the following : (1) Both a legal and an equitable cause of action may be alleged, and both a legal and an equitable remedy obtained ; (2) both a legal and an equitable cause of action may be alleged, and the single remedy obtained may be legal or equitable ; (3) upon an equitable cause of action, that is, an equitable primary right alleged to have been invaded, a legal remedy may be obtained ; (4) upon a legal cause of action, that is, a legal primary right alleged to have been invaded, an equitable remedy may be obtained ; and (5) in an action purely legal, that is, where the primary rights asserted to have been in- vaded, and the remedy demanded, are both legal, the plaintiff may invoke an equitable right or title in aid of his contention, and obtain his remedy by its means. These combinations, I believe, exhaust all possible cases of union on the part of the 1 The Code does not require legal and be united in the same action. Bruce v. equitable causes of action and reliefs to Kelly, 5 Hun, 229, 232. 96 CIVIL REMEDIES. plaintiff. I shall therefore proceed to show how far they are permitted and how far refused in those States which have adopted the reformed system of procedure. § 78. When the plaintiff is clothed with primary rights, both legal and equitable, growing out of the same cause of action or the same transaction, and is entitled to an equitable remedy, and also to a further legal remedy, based upon the supposition that the equitable relief is granted, and he sets forth in his complaint or petition the facts which support each class of rights, and which show that he is entitled to each kind of remedy, and demands a judgment awarding both species of relief, the action will be sus- tained to its full extent in the form thus adopted. He may, on the trial, prove all the facts averred, and the court will in its judgment formally grant both the equitable and the legal relief.^ It will be noticed that this proposition embraces only those cases in which the legal relief demanded rests upon and flows as a consequence from the prior equitable relief, but the principle of the rule is not confined to such cases ; it extends also to those in which the two remedie;^, although connected with the same trans- action or subject-matter, are not connected as cause and effect.^ This is the most complete union of legal and equitable primary rights and remedies in one action which can be made ; but it is limited and restricted to those cases in which these rights and remedies arise from the same transaction or subject-matter. It is 1 Laub ^. Buckrailler, 17 N. Y. 620, -Young «. Young, 81 N. C. 91 ; Kahn u. 626; Lattin u. McCarty, 41 N. Y. 107,109, Kahn, 15 Fla. 400; Ludersdorf v. Flint, 110; Davis v. Lamberton, 56 Barb. 480, 50 Wis. 401; Anderson u.Hunn, 5 Hun, 79; 483 ; Brown v. Brown, 4 Robt. 688, 700, Stevens v. The Mayor, &c., 84 N. Y. 296, 701; Walker v. Sedgwick, 8 Cal. 398; 305; Wheelock u. Lee, 74 N. Y. 495, 500 ; Welles V. Yates, 44 N. Y. 525 ; Henderson Margraf v. Muir, 57 N. Y. 159 ; Hale v. D.Dickey, 50 Mo. 161, 165; Guernsey u. Omaha Nat. Bank, 49 N. Y. 626; Mad- Am. Ins. Co., 17 Minn. 104, 108 ; Mont- ison Av. Bap. Ch. v. Oliver St. Bap. Ch., gomery v. McEwen, 7 Minn. 351. See 73 N. Y. 83 ; Cone v. Niagara Fire Ins! however, Hudson v. Caryl, 44 N. Y. 553, Co., 60 N. Y. 619. But see Lawe v. Hyde, which holds that, in an action brought to 39 Wis. 345. remove a nuisance, damages can only be 2 jgee N. Y. Ice Co. v. N. W. Ins. Co. awarded by the verdict of a jury, sed qu. 23 N. Y. 357, 359 ; Cahoon v. Bank of See also. Supervisors v. Decker, 30 Wise. TJtica, 7 N. Y. 486 ; Broiestedt v. South 624, 626-630, per Dixon C. J., for a very Side R. R., 55 N. Y. 220, 222 ; Turner v. elaborate opinion in opposition to the doc- Pierce, 34 Wis. 658, 665, per Dixon C. trine of the text and of the cases cited J. ; Linden v. Hepburn, 3 Sandf. 668, 671 ; above in this note. Further illustrations Gray v. Dougherty, 25 Cal. 266. The le- of the text are Stewart v. Carter, 4 Neb. gal and equitable causes of action should 564; Turner v. Althaus, 6 Neb. 54; be separately stated. Gates u. Kief, 7 Cal. Weinlaud v. Cockran, 9 Neb. 480; Wa 124; Magwire ». Tyler, 47 Mo. 115, 127. Ching V. Constantine, 1 Idaho, 266 ; UNION OF LEGAL AND EQUITABLE REMEDIES. 97 not generally possible to join one legal cause of action with another entirely independent equitable cause of action, there being no antecedent connection between the two. In the cases described above, where the union is permitted, there is, in fact, no joinder of different causes of action ; there is only the union of remedial rights flowing from one cause of action, as will be seen from the judgments of the court in several of the cases cited in the note, and as will be more fully shown in a subsequent chapter. This rule, which has been firmly established by the court of last resort in New York, and which is adopted in all the States, with one or two exceptions, has been applied in the follow- ing cases among others : in an action by the holder of the legal title to correct his title deed, to recover possession of the land according to the correction thus made, and to recover damages for withholding such possession ; ^ in an action by one holding the equitable title to procure defendant's deed to be cancelled, and a conveyance by defendant to himself, to recover possession and damages, and to restrain defendant from conveying away the land ; ^ in an action by the grantor of land to correct his deed by the insertion of an exception of the growing timber, and to recover damages for trees embraced in the exception, wrongfully cut hj the grantee;^ in an action to abate a nuisance, to restrain its further commission, and to recover damages therefor;* in an action by a widow to establish her right of dower, to procure it to be assigned, to recover possession and damages ; ^ and in an action by the vendor of land to recover a money judgment on notes given him for the price, and to foreclose his lien on the land itself.6 § 79. In Missouri, however, the judiciary for a long time denied the correctness of this rule, and rejected it under all circum- stances in which it could possibly be applied. The doctrine was asserted and maintained in a long series of adjudications that the holder of an equitable title, or the possessor of an equitable pri- mary right, can obtain none but an equitable remedy prosecuted in an equitable form of action. The Supreme Court of that State 1 Laub t;..BuckmilIer, 17 N. Y. 620. that a jury trial is necessary to tlie re- 2 Lattin v. McCarty, 41 N. Y. 107 ; covery of damages. Parker «. Laney, Henderson v. Dickey, 50 Mo. 161. 58 N. Y. 469. 8 Welles V. Yates, 44 N. Y. 525. » Brown v. Brown, 4 Robt. 688. * Davis V. Lamberton, 56 Barb. 480. 6 Walker v. Sedgwick, 8 Cal. 398. But see Hudson v. Caryl, 44 N. Y. 553, 7 98 CIVIL REMEDIES. even went so far as to reject the familiar principle of equity juris- prudence, which permitted the Court of Chancery, having acquired jurisdiction by means of some equitable right, to go on and admin- ister full legal relief in order that the party should not be put to the trouble and expense of a second action at law. In accordance with this narrow view of equity and this narrow construction of the reformed legislation, it was settled that the holder of an equi- table title who seeks to enforce his right and to acquire a legal title by means of a specific performance, a cancellation, or a re- formation of deeds, must, after obtaining that relief, bring a second action at law to recover the possession. If he unite his equitable claim for cancellation and the like with the legal claim for possession, he was actually to be turned out of court. This remarkable interpretation put upon the language of the statute, and so completely defeating its plain intent, was resorted to in the following, among other instances, which are selected as illus- trations merely: in actions brought to set aside and cancel deeds of convej'ance made to the defendant, alleged to be fraudulent, and to vest the legal title in the plaintiff, and to recover posses- sion of the premises in question ; ^ in an action of partition, where defendant was in possession of the whole land, claiming title therein, it being held that the plaintiff must first establish his legal right by ejectment, and then bring an equity action of par- tition.^ The Supreme Court of Missouri has, however, in a very recent decision, receded from this very extreme position, and has partly, at least, overruled the authority of the cases referred to in this and the subsequent paragraph. Although the single judg- ment does not in its reasoning and conclusions accept the liberal views of the New York Court of Appeals in their full scope and extent, yet it plainly tends in that direction, conferring the reliefs of reformation or correction of a deed of conveyance and recovery of possession of the land included in such deed as corrected.^ 1 Curd u. Lackland, 43 Mo. 139 ; "Wynn » Henderson v. Dickey, 50 Mo. 161, V. Corry, 4.S Mo. 301 ; Gray v. Payne, 48 165, per Wagner J. The judgment in Mo. 203 ; Bobb v. Woodward, 42 Mo. 482 ; this case comments on and condemns the Peyton v. Rose, 41 Mo. 257; Walker's leading decisions referred to in .the two Adm'r v. Walker, 25 Mo. 367 ; Magwire preceding notes ; and, although it deals too V. Tyler, 47 Mo. 115, 127 ; Rutherford leniently with the gross mistakes into V. Williams, 42 Mo. 18, 23 ; Pithian v. which Holmes J. had fallen in anuoun- Monks, 43 Mo. 502, 517. cing the doctrine of those prior cases, yet 2 Gott V. Powell, 41 Mo. 416 ; Moreau it squarely overrules their central princi- V. Detchemendy, 41 Mo. 481. pie, and destroys their authority. UNION OF LEGAL AND EQUITABLE REMEDIES. 99 The judiciary of "Wisconsin seem now alone, among the tribunals of the several States, to reject this liberal theory of interpretation, and to require separate actions for the assertion of legal and equitable rights, and the procurement of legal and equitable remedies. .The principle of unity approved and adopted by the highest tribunal of New York has been deliberately rejected after a most thorough examination, and the opposite principle, which distinguishes between the two classes of action, and retains their separate use, and prohibits the recovery of legal and equitable remedies in one suit, is avowedly accepted as being the correct construction of the legislative provisions.^ § 80. The next case to be considered is the same in principle, and nearly so in all its features, with the one just discussed. The plaintiff, as in the last instance, possesses primary rights, both legal and equitable, arising from the same subject-matter or trans- action, and is entitled to some equitable relief, reformation, can- cellation, specific performance, and the like, and to legal relief based upon the assumption that the former relief is awarded ; he avers all the necessary facts in his pleading, and demands both the remedies to which he is entitled. The court, instead of for- mally conferring the special equitable remedy and then proceed- ing to grant the ultimate legal remedy, may treat the former as though accomplished, and render a simple common-law judgment embracing the final legal relief which was the real object of the action.^ This proceeding is plainly the same in principle with the one stated in the foregoing paragraph ; but it is a more com- plete amalgamation of remedies, a more decided departure from the notions which prevailed under the former system. By the omission of the intermediate step, the actual result is reached of a 1 Noonan v. Orton, 21 "Wis. 283 ; Su- judgment of Dixon C. J. in Supervisors pervisors v. Decker 30 Wis. 624, 626, v. Decker is an exhaustive discussion of per Dixon C. J. ; Horn v. Luddington, 32 this subject, with a review of the leading Wis. 73. The first of these cases was authorities. Although there is much in an action brought to compel the specific his opinion that is correct and admirable, performance of an agreement to give a he reaches, as his main conclusions, posi- lease. The complaint also alleged a tions which are in direct conflict with the breach of a covenant which was to have letter as well as the spirit of the codes, been contained in the lease, and demanded See also Lawe u. Hyde, 39 Wis. 345 ; a judgment for the damages arising there- Williams v. Lowe, 4 Neb. 382 ; Faxton v. from as well as for the specific perform- Wood, 77 N. C. 11 ; Mattair v. Payne, 15 ance. Held, that the two could not be Fla, 682. combined; that the plaintifE must first ob- ^ Bidwell v. Astor Ins. Co., 16 N. Y. tain the lease, and then bring his action 263,267; Phillips u. Gorham, 17 N. Y. 270; for a breach of the covenant in it. The Caswell v. West, 3 N. Y. Sup. Ct. 383. lOO CIVIL KEMEDIES. legal remedy based upon an equitable primary right or title. No doubt tliis omission of the intermediate step is often as advanta- geous to the plaintiff as though it had been taken in the most formal manner ; but, on the contrary, it will sometimes happen that the formal change of his equitable title into a legal one by a decree of cancellation, or of specific performance or reformation, Vfill be necessary to secure and protect his rights in the futurei. As a matter of safety and prudence, the particular form of judg- ment just described should only be used in actions upon executory contracts where a pecuniary payment exhausts their efficiency ; in actions involving titles to land, the full judgment — embracing the equitable relief as well as the legal remedy of possession — would generally be far preferable. The rule permitting such a single legal remedy has been applied in the following among other instances : in an action upon an insurance policy which by mistake was so drawn that the plaintiff — the assured — had no claim for damages, he demanded judgment (1) reforming the in- strument, (2) recovering $7,000 for a loss embraced within its terms as thus reformed, and the court ordered a judgment merely for the amount of the loss as claimed ; ' in an action to recover lands of which the plaintiff had the equitable title only, the legal title being in the defendant by means of a deed of conveyance from the plaintiff's ancestor, the former owner, regular on its face, but alleged to have been obtained by fraudulent represen- tations, instead of directing a cancellation of this deed and a reconveyance to the plaintiff, the court granted a judgment for the recovery of possession directly ; ^ in an action upon a contract for the building of a house according to certain specifications, the complaint alleging a mistake in the specifications as set out in the written instrument, and averring a performance according to the specifications actually agreed on by the parties, and de- manding judgment for the amount due for sifch services without praying for any reformation of the contract, the action in this form was sustained, and it was expressly held that no prayer for a correction was necessary .3 The rule here stated, and the deci- sions which sustain it, are plainly in direct opposition to the doc- 1 Bidwell V. Astor Ins. Co., 16 N. T. Williams v. Slote, 70 N. Y. 681 ; Whiting 263. See also Cone v. Niagara Fire Ins. v. Root, 52 Iowa, 292. Co., 60 N. Y. 619 ; 3 T. & C. 33 ; Maher 2 Phillips v. Gorham, 17 N. Y. 270. V. Hibernia Ins. Co., 67 N. Y. 283, 291 ; a Caswell v. West, 3 N. Y. Sup. Ct. 383. UNION OF LEGAL AND EQUITABLE REMEDIES. 101 trine which originally prevailed in the Missouri courts, and which still receives the approval of the Wisconsin judges. § 81. Another case, varying in some of its circumstances from the two which have been described, and yet depending upon the same principle, remains to be considered. If the plaintiff pos- sesses, or supposes himself to possess, primary rights, both legal and equitable, arising from the same subject-matter or transac- tion, and avers the necessary facts in his pleading, and prays for both the remedies corresponding to the two different rights, but on the trial fails to establish his equitable cause of action and his consequent right to the equitable remedy, his action should not be therefore dismissed ; he should recover the legal judgment which the legal cause of action demands. ^ Thus, in an action on a policy of insurance, all the necessary facts being alleged, the complaint demanded a money judgment on account of a loss, and also that the instrument should be reformed by reason of an alleged mistake, which reformation, if made, would increase the sum insured, and enable the plaintiff to recover a larger amount. On the trial he failed to prove the averments respecting the mis- take, and was not, therefore, entitled to any equitable relief. The New York Court of Appeals held that judgment should have been recovered on the legal cause of action for the sum which was actually insured, and reversed the ruling below which had dismissed the action.^ As another illustration : in an action by the grantor of land against the grantee to set aside the deed of conveyance on the ground that it was procured by false and fraudulent representations, after setting out all the facts which constituted the transaction, the complaint prayed for two reme- dies in the alternative, — (1) damages for the deceit, (2) cancel- lation and a reconveyance. A reconveyance was found to be impossible on the trial, because the defendant had conveyed the premises to bona fide purchasers. A simple legal judgment for the damages caused by the deceit was granted, and was held to be proper by the general term of the New York Supreme Court.^ This rule is now established, except in the one or two States 1 McNeadyD.HycIe,47Cal.481,483,— 2 jj. y. Ice Co. o. N. W. Ins. Co., 23 action to recover possession of land, and N. Y. 357, 359. for an injunction ; Sternberger v. McGov- 3 Graves v. Spier, 58 Barb. 349, 383, ern, 56 N. Y. 12. 21, 15 Abb. Pr. n. s. 384; and see Stemberger v. McGov- 257, 271, — specific performance and dam- ern, 15 Abb. Pr. n. s. 257, 271, 56 N. Y. 12. 102 CIVIL REMEDIES. which retain the distinctions between legal and equitable actions ; but there are some earlier dicta, and even decisions opposed to it,i which, however, must be considered as overruled.^ § 82. In each of the foregoing instances the complaint has stated all the necessary facts constituting both grounds for relief, and has actually demanded both remedies in the prayer for judg- ment. Another case presents itself with a change of features. The averments of fact are the same, but the plaintiff demands only the special equitable remedy to which he deems himself entitled. On the trial he fails to prove the alleged grounds for equitable relief, but does establish a case for the legal relief which was not demanded in the prayer for judgment, although all the necessary facts, from which the remedial right arose, were averred. It is now, after some hesitation, settled that even in this case the plaintiff is not to be dismissed from court, but should be permitted to recover the legal remedy supported by the allegations of fact contained in the complaint or petition.^ There are dicta in opposition to this rule,* but they are all over- ruled by the subsequent and more authoritative decisions in the same States. In Missouri this liberal doctrine has not been 1 See Penn. Coal Co. v. Del. & Hudson and a quotation from his judgment will Canal Co., 1 Keyes, 72. The reporter's be found ante, in note to § 70. See also head-note is not sustained by the decision Hamil v. Thompson, 3 Col. 518, 523; of this case. A dictum of Mr. J. Emott, Harrall v. Gray, 10 Neb. 186 ; Harring- at p. 76, is the sole ground for it ; and ton o. Robertson, 71 N. Y. 280 ; 7 Hun, even this dictum is not so broad as tlie 368; Williams v. Slote, 70 N. Y. 601; head-note. Lewis v. Soule, 52 Iowa, 11 ; Whiting v. " See Davis v. Morris, 36 N. Y. 569. Koot, 52 Iowa, 292. 5 Marquat v. Marquat, 12 N. Y. 336 ; * See, for example, Mann v. Fairchild, Barlow v. Scott, 24 N. Y. 40, 45; Cuff v. 2 Keyes, 106, 111 ; Haywood v. BufiEalo^ Dorland, 55 Barb. 481 ; Graves v. Spier, 14 N. Y. 534, 540. Neither of these cases 58 Barb. 349 ; Tenney v. State Bank, 20 decides the point stated by the reporter in Wis. 152; Foster f. Watson, 16 B. Mon. Mann v. Fairchild; but each contains a 377, 387 ; Leonard v. Rogan, 20 Wis. dictum which is certainly strong enough. 540; White v. Lyons, 42 Cal. 279. In In the former Potter J. says :" If a party Leonard v. Rogan, Dixon C. J. said (p. brings an equity action even now when 542) : "If the plaintiff demands relief in the same court administers both systems equity when upon the facts stated he is of law and equity, the party must main- only entitled to a judgment at law, or tain his equitable action on equitable vice versa, his action does not as formerly grounds or fail, even though he may fail because of the mistake. He may prove a good cause of action at law on still have the judgment appropriate to the trial." This proposition is certainly the case made by the complaint." In incorrect if the party has averred his legal White V. Lyons, Mr. Justice Crockett (at cause of action, even though he may not p. 282), states the general doctrine in a have demanded the legal remedy thereon, very accurate and comprehensive manner, UNION OF LEGAL AND EQUITABLE KEMEDIES. 103 adopted, since, as has been already seen, the principle of uniting legal and equitable causes of action and remedies in one suit has been rejected in all its phases. The modification of its earlier notions, -which the Supreme Court of that State has made in its latest decisions, does not necessarily extend to the case under consideration.^ The Supreme Court of Wisconsin seems, also, to have abandoned the position which it originally occupied in ref- erence to the particular subject in question, and now refuses to award a legal remedy to a plaintiff who has only demanded equitable relief.^ § 83. The phases and combinations to which the liberal prin- ciple has thus far been applied have resembled each other in this, that in all of them the plaintiff was clothed with a double reme- dial right and both a legal and an equitable cause of action ; in those which are now to be examined, the plaintiff claims but one remedial right, and sets up but one cause of action. When the complaint or petition alleges a case which entitles the plaintiff to equitable relief, but no basis for legal relief is stated, and prays a common-law judgment, but no equitable remedy of any kind, if the case as alleged is proved upon the trial the equitable rem- edy which is appropriate to it should be awarded. Disregarding the prayer or demand of judgment, the court will rely upon the facts alleged and proved as the basis of its remedial action. This application of the general principle has been made in a case where the complaint or petition stated facts entitling the plaintiff to an accounting as against the defendant in respect of a joint undertaking, but not to a judgment for a sum certain. The prayer, however, was for the ordinary money judgment. The New York Court of Appeals held that this action should not have been dismissed, but that a judgment for an accounting should 1 Myers v. Field, 37 Mo. 434. As to services rendered ; and that in such an the extent of the recent modification, see equitable action a legal remedy could not Henderson v. Dickey, 50 Mo. 161. be obtained, relying upon tlie authority of 2 Horn V. Luddington, 32 Wis. 73. Supervisors v. Decker, 30 Wis. 624, 626. The complaint alleged moneys advanced The conflict between this ruling and that and services rendered by plaintiff to de- of the same court in Leonard v. Kogan, fendant under an oral agreement that 20 Wis. 540, 642, is direct. I make no the latter would convey certain lands, attempt to reconcile them. See Dickson and demanded judgment for a specific v. Cole, 34 ib. 621, 625 ; Turner v. Pierce performance. Deciding that no case was 34 ib. 658, 665 ; Deery v. McClintock, 6\ made out for a specific performance, the ib. 195 ; Wrigglesworth v. Wngglesworth, court also held that the plaintiff could not 44 id. 255. recover for the moneys advanced and the 104 CIVIL KEMEDIES. have been granted, i The rule in Missouri seems to have been settled in an entirely different sense. ^ § 84. If, however, the complaint or petition contains a case entirely for equitable relief, stating no facts upon which a legal remedial right arises, and prays a judgment awarding the equi- table relief alone, but on the trial the plaintiff fails to prove the case as thus alleged, but does establish a legal cause of action not averred in his pleading, his suit must be dismissed ; he can- not recover the legal remedy appropriate to the facts which he succeeds in proving. ^ There is no conflict between this and any of the preceding propositions ; in fact, the one principle governs them all. This principle is that the court looks to the facts alleged and proved, and not to the prayer for relief. If the facts entitling a party to a remedy, legal or equitable, are averred and proved, he shall obtain that remedy, notwithstanding his omission to ask for it in his demand of judgment ; and, if the facts were not averred, he shall not obtain the remedy, although he demanded it in the most formal manner. The reform legislation has not dispensed with the allegations of fact constituting a cause of ac- tion ; on the contrary, it has made them, if possible, more necessary 1 Emery v. Pease, 20 N. Y. 62, 64. See, granting remedies which had not been however, Russell v. Byron, 2 Cal. 86 ; demanded, and for which no ground had Buckley v. Carlisle, 2 Cal. 420 ; Stone i;. been alleged in the pleadings. The facts Fouse, 3 Cal. 292; Barnstead v. Empire of this case and the language of the judg- Mining Co., 5 Cal. 299. In all these cases, ment should be carefully noticed in order the court, while holding that the plaintiff to fix the exact line of distinction between could not recover a judgment for a cer- it and the former ones which support the tain sum, did not give judgment for an general doctrine of the text. The final accounting. The question, however, was judgment for damages on account of the not raised. Blood w. Fairbanks, 48 id. 171, deceit was reversed, because the complaint 174. See also Shilling v. Rominger, 4 contained no averment of any damages Col. 100; Hamill v. Thompson, 3 Id. sustained, and not because a judgment 618, 523 ; Harrall v. Gray, 10 Neb. 186 ; for damages cannot be rendered in the Parker v. Jacobs, 14 S. C. 112 ; Smith v. same suit which contains also an equi- Bodine, 74 N. Y. 30 ; Williams v. Slote, table cause of action. The addition of 70 id. 601 ; Mackey v. Auer, 8 Hun, certain averments to the complaint would 180. have made this case identical with Graves 2 Maguire v. Vice, 20 Mo. 429 ; Rich- v. Spier, supra. See also Stevens v. The ardson v. Means, 22 Mo. 495 ; Myers v. Mayor, &c., 84 N. Y. 296, 305 ; Arnold v. Field, 37 Mo. 434. Angell, 62 id. 508 ; People's B'k v. Mit- 8 Bradley v. Aldrich, 40 N. Y. 504. chell, 73 id. 406, 415 ; Bokes v. Lansing, This case is important, as it lays down 74 id. 437 ; Wintermute v. Cooke, 73 id. the proper limitations upon the doctrine 107 ; Smith v. Bodine, 74 id. 30 ; Lawe v. of some prior decisions which I have Hyde, 39 Wis. 345 ; Meyer v. County of cited. These former adjudications might Dubuque, 43 Iowa, 592 ; Shilling v. Rom- perhaps be wrested from their true mean- inger, 4 Col. 100 ; Hamill u. Thompson, ing and claimed to be authorities for 3 id. 618, 523. TKIAL OF LEGAL AND EQUITABLE ISSUES. 105 tlian under the old system. The converse of the rule above stated is also true. If the plaintiff sets forth a case entirely for legal relief, and prays a legal judgment alone, and at the trial fails to prove the averments actually made, he cannot establish an equitable cause of action not pleaded, and recover an equitable remedy thereon. ^ § 85. The principle may be applied in still another form or combination of circumstances. In a purely legal action, or, to speak more correctly, in an action where the plaintiff sets forth and mainly relies upon a legal primary right or title, and asks a remedy which is purely legal, he may still invoke the aid of an equitable right or title which he holds, or of which he may avail himself, in order to maintain his contention, and obtain the legal relief which he seeks. This is a more indirect union of legal and equitable rights and causes of action than exists in any of the instances heretofore discussed ; but it is none the less such a union. ^ § 86. As to the mode of trial when the complaint or petition sets forth an equitable and a legal cause of action, there is some diversity in the practice of the several States. The constitutions 1 Drew 0. Ferson, 22 Wis. 651. This tlie land on account of failure to pay the case resembles Emery v. Pease, supra, rent. Tlie defence was as follows : Tay- and miglit be confounded with it. The lor had given a mortgage on the land distinction, however, is plain upon exami- which had been foreclosed, and the land nation, and at once removes any appear- was bought by Dr. Clarke in 1831, and ance of conflict. In Emery v. Pease, the was by him conveyed to one Eisley and complaint stated facts showing that the from him by mesne conveyances to the plaintifT was entitled to an accounting, defendant. The defendant's contention although it prayed for a money judgment, was that Dr. Clarke in 1831, being owner In Drew u. Ferson, the pleading set out both of the land and of the rent-charge, simply a case to recover money laid out the latter merged and was extinguished. and expended ; it did not contain any alle- In reply, the plaintiff proved that Dr. gation upon which to base a judgment for Clarke did not intend that the rent-charge accounting. In the former case, there- should merge, but that it should be kept fore, it was proper to grant the equitable alive. The General Terra of the Supreme remedy, and in the latter it was proper Court held that this doctrine of non- to dismiss the suit ; there is no conflict. merger was purely equitable, and could 2 Sheehan o. Hamilton, 2 Keyes, 304 ; not be invoked by the plaintiff in this 3 Abb. Pr. n. s. 197. This was an action legal action, and that the plaintiff should to recover possession of land. Living- have first established the rent-charge in ston, the original owner, had demised the an equitable action, and then brought this land to one Taylor by a perpetual lease, action of ejectment. The Court of Ap- reserving a rent-charge with a clause of peals reversed this decision, and laid re-entry. L. assigned this rent-charge down the doctrine of the text. See, also, and all his rights to Dr. Clarke, who died Arthur v. Homestead Ins. Co., 78 N. Y. in 1846, and the plaintiff is his heir-at- 462, 467. law. The action is brought to recover 106 CIVIL REMEDIES. protecting the jury trial in common-law cases in which it had been customarily used, the defendant may, of course, insist that the legal issues shall be passed upon by a jury. He may waive this right by a stipulation in writing, by an oral stipulation made in open court, by failing to appear on the trial, and perhaps by permitting the trial to be actually entered upon without objection. If the litigant parties, or either of them, assert their rights as thus stated, it is settled in New York that the legal issues must be tried at a circuit court, or at a trial term of the court in which the action is pending ; ^ and it seems that all the issues, legal and equitable, must thereupon be tried together in the same manner, for it is said that " no provision is made for two trials of the issues joined in the same action." ^ If a cause is brought on to trial before the court sitting without a jury — in New York, the special term — as an equity cause, and the trial is commenced under that supposition, the defendant not waiving his right by acquiescence, and the court, in the course of the investigation, discovers that it involves separate legal issues, the complaint should not be dismissed on that account ; the trial should be sus- pended, and the case sent to the Circuit or other court possessing a jury. ^ The same rule prevails generally in other States. A mistake in bringing on the cause for trial is to be corrected by simply sending it to the proper court or placing it upon the proper docket. * - In some of the States provision is made for the trial of the issues separately and at different times. The equi- table issues may be tried first and the legal issues afterwards, or the order may be reversed as the nature of the case and the rela- tions of the issues seem to require. ^ 1 Davis o. Morris, 36 N. Y. 569 ; Peo- Smith v. Moberiy, 15 B. Mon. 70, 73 ; Ben- pie V. Albany, &c., R. R., 57 N. Y. 161, nett v. Titherington, 6 Bush (Ky.), 192. 1^^- ' See Guernsey v. Am. Ins. Co., 17 Minn. •i Ibid. p. 572, per Grover J. 104, 108 ; Harrison ,.. Juneau Bank, 17 s Ibid. p. 573. Wis. 340 ; Du Pont v. Dayis, 35 Wis. * Trustees, &e. v. Forrest, 15 B. Mon. 631, 639 ; and see Richmond v. Dubuque, 168 ; Foster v. Watson, 16 B. Mon. 377, &c. R. R., 33 Iowa, 422, 489-491. On the 387 ; Sale v. Crutchfield, 8 Bush, 636, 644. mode of trial, see also McPherson u. If an action is wrongly transferred to the Peatherstone, 37 Wis. 632; Lewis a. equity docket when no valid equitable Soule, 52 Iowa, 11 ; Davison «. Associates issues are presented by the pleadings, of the Jersey Co., 71 N. Y. 333 ; Wheel- this is error which requires a new trial, ock v. Lee, 74 id. 495, 500, and cases Creager v. Walker, 7 Bush, 1, 3. cited. An equitable defence' set up does ' Massie v. Stradford, 1 7 Ohio St. 596 ; not change the nature of the action. Wis- Petty V. Malier, 15 B. Mon. 691, 604; ner w. Occumpaugh, 71 N. Y. 113, 117. NATURE OF EQUITABLE DEFENCES. 107 SECTION FOURTH. EQUITABLE DEFENCES TO ACTIONS BROUGHT TO ENFORCE LEGAL RIGHTS AND TO OBTAIN LEGAL REMEDIES. § 87. Another practical effect of removing the distinction between actions at law and suits in equity is shown in the em- ployment of equitable defences to actions brought to enforce legal rights and to obtain legal remedies. The ancient system knew of no such union, and a thorough-paced lawyer of the old school would have deemed it incestuous. Legal rights set up by the plaintiff must be met in the same action by legal rights set up by the defendant. If the defendant, when prosecuted in an action at law, had an equity which, if worked out, would defeat the recovery, his only mode of redress was to commence an inde- pendent suit in chancery by which he might enforce his equitable right, and in the mean time enjoin his adversary from the further prosecution of the action at law. A single familiar example will illustrate the situation. A. has entered into a contract with B. to convey to the latter a farm on payment of the price, and lets him into possession. The price is paid in full, so that the vendee is fully entitled to his deed. A., in this position of affairs, com- mences an action of ejectment to recover possession of the land. By the common-law system B. would have no defence whatever to that action ; the legal title is in the plaintiff, and his own title and right to a deed, being equitable, were not recognized by courts of law as any defence. Of course a municipal law which did not furnish some means of enforcing B.'s right and defeating A.'s action would be incomplete, and unfitted for a civilized people. The common law provided a means, but it was cumbrous, dilator}'', and expensive. B. commences a suit in the Court of Chancery, sets forth the agreement to convey and all the other facts from which his equitable title arises, alleges the pending ejectment brought by the vendor, and prays for the proper relief. It is im- portant to notice the extent and nature of this relief, because it throws light upon questions which now arise concerning the doc- trine of equitable defences. The vendee might content himself with asking and obtaining an injunction which would stay the pending ejectment, and leave him in possession undisturbed by 108 CIVIL REMEDIES. that action, but would plainly not be a perfect and lasting pro- tection in the future. To end the matter and to secure himself absolutely, he must ask and obtain the affirmative remedy of a specific performance and a conveyance from A. to himself. This being done, he is armed with the legal title, and can defend any legal action brought against him by the vendor or his heirs or grantees. Nothing could be devised more cumbrous than this double litigation to enforce one right and to end one controversy. Nothing could be more simple, natural, and necessary than the reform which permits the equitable right to be pleaded and proved in the action at law ; and yet, when the change was made by the legislature, experienced and learned lawyers and judges denounced it, and strove to render it merely nominal. Even at the present day, and in States where the liberal doctrine has been accepted and has received the sanction of the highest tribunals, individual members of the bench will occasionally raise their voices in strenuous opposition ; and in one or two of the States an interpretation has been placed upon the statute which confines its beneficial operation within the narrowest limits. The subject- matter of the present section naturally separates itself into three divisions, and the discussion will follow that order: (1) What is an equitable defence ? (2) When may an equitable defence be interposed in an action purely legal, which will include the joinder of equitable and legal defences in the same suit? and (3) When can affirmative relief against the plaintiff be granted to the defendant upon the equitable defence which he sets up ? § 88. What is an equitable defence? It is to be observed that this term contains two distinct words, and that the separate meaning of each is essential to the complete and accurate concep- tion of the whole, — "equitable" and "defence." Equitable is used in its technical sense as contrasted with legal ; that is, the right which gives it its efficacy is an equitable right, — a right formerly recognized and enforced only in courts of equity, and not in courts of law. The notion involved in the word " defence " is, however, the most important to observe. In its judicial sig- nification, a defence is something which simply prevents or defeats the recovery of a remedy in an action or suit, and not something by means of which the party who interposes it can obtain relief for himself. If the codes had merely in express language author- ized the defendant to set up equitable defences, but had not NATURE OF EQUITABLE DEFENCES. 109 enacted any further provisions in reference to the subject-matter, the granting of affirmative equitable remedies to the defendant could not have been inferred from such permission. A " defence " is essentially negative, and not affirmative. The facts from which the defensive right arises, may perhaps, in a proper occasion and when employed for that purpose, be made the basis of affirmative relief; but, when so employed, they would not be a defence. In short, a defence is not to be conceived of as the means of acquir- ing positive relief or any remedy, legal or equitable. When, therefore, the statute permits an equitable defence to be inter- posed in a legal action, it merely contemplates the fact that the equitable right averred shall prevent the plaintiff from recovering the legal remedy he is pursuing hj his action. If to this nega- tive effect is added the privilege of obtaining an affirmative judg- ment against the plaintiff, based upon the same equitable right, the latter so far ceases to be a " defence," and becomes in turn a cause of action. The action itself thus assumes a double aspect ; each litigant party in this respect becomes an actor, and each a defendant. This analysis may appear to be, and certainly is, elementary and familiar ; but it is needed to clear up some confusion and difficulties into which certain courts have fallen in reference to the subject under consideration. These courts, as will be seen in the sequel, would restrict the operation of the reform to those cases in which the defendant asks and obtains some specific affirmative equitable relief against the plaintiff; in other words, to those cases in which the equitable right relied upon by the defendant is not used as a defence at all, but is averred as a true cause of action. This construction is, as it seems to me, a palpable error, and it deprives the legislative provision of half its efficacy. § 89. A few years ago the British Parliament, among its many legal reforms, enacted that in England an equitable defence might be pleaded in an action at law. In giving construction to this remedial statute, the English courts of law held that no such defence was admissible, — in other words, they would recognize and enforce no such defence, — unless it were of such a nature that courts of equity, in accordance with their well-settled doc- trines, would, if the same facts were set out in a bill of complaint, grant an immediate injunction restraining the further prosecution of the action at law. This construction, of course, destroyed the 110 CIVIL REMEDIES. practical utility of the statute. The American courts have not followed this extremely narrow interpretation. § 90. A defence is a right possessed by the defendant, arising from the facts alleged in his pleadings which defeats the plain- tiff's claim for the remedy which he demands by his action. An equitable defence is such a right which was originally recognized by courts of equity alone. A concise and accurate definition was given by one of the members of the New York Court of Appeals in an early case. "Under the head of equitable defences are included all matters which would before have authorized an application to the Court of Chancery for relief against a legal liability, but which at law could not be pleaded at bar. The facts alleged by way of defence in this action would have been good cause for relief against the judgment in a court of chancery [the suit was brought on a judgment], and under our present system are, therefore, proper matters of defence." ^ Another judge said in the same case : " An equitable defence to a civil action is now as available as a legal defence. The question now is. Ought the plaintiff to recover? and anything which shows that he ought not is available to the defendant, whether it was formerly of equitable or of legal cognizance."^ I need not pur- sue this analysis further ; the instances in which equitable de- fences have been sustained, as given in the cases hereafter cited, will explain and illustrate their nature more clearly than any abstract definition or description. § 91. Express as is the language of the statutes, and well established as is the juridical nature of " defence " in general, the doctrine has been strenuously maintained, and is supported by the decisions of respectable courts, that a defendant cannot avail himself, as a defence, of facts entitling him to equitable relief against the plaintiff's legal cause of action, unless he does it by demanding and obtaining that specific remedy which, when granted, destroys the cause of action ; in other words, he cannot invoke the right as long as he treats it and relies upon it as a 1 Dobson V. Pearce, 12 N. Y. 156, 166, equitable defence must or only may he set per Allen J. See Webster v. Bond, 9 up, see Erie Kailway b. Ramsay, 45 N. T. Hun, 437 ; Wisner v. Occumpaugh, 71 637, per Folger J ; Giles v. Austin, 62 id. N. Y. 113, 117 ; "Wa Chung v. Constan- 486 ; Ricker v. Pratt, 48 Ind. 73. tine, 1 Idaho, 266 ; Pennoyer ;;. Allen, 51 2 Dobson v. Pearce, 12 N. Y. 156, 168, Wis. 360; 50 Wis. 308; Holland v. John- per Johnson J. son, 51 Ind. 346. As to whether an NATURE OF EQUITABLE DEFENCES. Ill defence. If he does not institute a separate action based upon his equitable right, and recover the specific relief therein, and restrain the pending action at law, he must, at least, in the answer pleaded to that action at law, affirmatively demand the equitable remedy, and this remedy must be conferred upon him. If he simply avers the facts as a negatiye defence, he will not be per- mitted to rely upon them and to defeat the plaintiff's recovery by that means. Certain of the cases which announce this doctrine, together with the reasoning by which it is sustained, will be found in the foot-note.^ The error of this doctrine has already been 1 Follett c. Heath, 15 Wis. 601 ; Con- ger V. Parker, 29 Ind. 380 ; Hicks v. Siiep- pard, 4 Lans. 335, 337 ; Cramer v. Ben- ton, 60 Barb. 216. See also Kenyon v. Quinn, 41 Cal. 325 ; Lombard v. Cowham, 34 Wis. 486, 492; Dewey v. Hoag, 15 Barb. 365. As this doctrine is insisted upon in these cases with great emphasis, and as some of them are rery recent, and are in direct opposition to other decisions in the same States, I shall give the views of the courts at length. Follett v. Heath was an action to recover posses- sion of chattels. The defendant answered by way of equitable defence. He claimed the chattels under a chattel mortgage, given thereon by the plaintiff, which was intended to secure a certain note executed by the plaintiiT, which had become due; but by mutual mistake it was made to secure another note of the plaintiff wliich was not yet due. The answer asked in the usual form for a return of the goods which had been taken by the plaintiff, but did not pray for a reformation of the mortgage. This answer, it was held, dis- closed no defence to the action. In his judgment, Paine J. said (p. 602) : "It is true that equitable defences may now be interposed. But the facts here sought to be interposed do not constitute any equi- table defence, if they were established. The papers having been made wrong by mistake, the parties are bound by them unless they take some appropriate method to correct the mistake. That method is not to prove the mistake in an action at law, and have the same benefit as though the instruments were reformed ; but it is to bring an equity action to reform the instrument, so that it can have its proper legal effect. . . . Equity aids in such cases by reforming the contract, not by giving effect to it without being reformed." The learned judge here speaks as though the ancient system of separate equity and common-law jurisdictions still existed in full force and effect, and as though the legislature had not made its sweeping reform by combining the two into one mode of administering justice. In Conger V. Parker the complaint alleged a convey- ance from defendant to plaintiff, by a deed containing the usual covenants, of a farm on which were several growing crops, — naming them, — among which was a crop of wheat ; and that defendant took and converted these crops to his own use. The answer set up an agree- ment that the wheat crop was to be ex- cepted from the conveyance, but that by mistake this exception was omitted from the deed. There was no prayer for a refor- mation. The court held this answer bad : ( 1 ) because it did not go to the whole cause of action, and (2) as stated by Frazer J., p. 381 : " The answer is bad for another reason. When a mistake in a deed or other written instrument is relied on, the plead- ing should go further than is done in this case. It should have prayed afiBrmative relief, that the instrument be reformed, so as to show the contract intended to have been embodied in it, and that, when so reformed, it might be allowed as a bar to the suit, or to so much thereof as it would bar. This might be done by an answer in the nature of a cross-bill in equity. It is not necessary, under the code, to bring an independent suit for the purpose as it was formerly when the origi- nal suit was at law." The Indiana court 112 CIVIL EEMEDIES. demonstrated. A defence is a negative resistance, an obstacle, a something which prevents a recovery, whether it be equitable or here lays down a more precise and posi- tive rule than was done in the Wisconsin case, which leaves it doubtful whether the defendant can obtain afiGirmative relief in the original action upon his answer, or whether he must bring a separate equi- table suit for that purpose. Hicks v. Sheppard and Cramer b. Benton are two quite recent decisions of the general term of the Supreme Court in New York, the opinion in each being delivered by the same judge. They are in such direct an- tagonism with several judgments of the highest tribunal of that State that they naturally require a special notice. The first was an action to recover lands, the plaintiff claiming under a deed from de- fendant to H. and M., who were the grantors of the plaintiff by a deed with a covenant of warranty. The answer al- leged, as an equitable defence, that the deed from defendant to H. and M. included the lands in question through a mistake, and prayed a reformation. On the trial, the court found the mistake, sustained the defence, and held the plaintiff not entitled to recover ; but from the absence of the proper parties the deed to H. and M. could not be reformed in that action. The General Term on Appeal held, in an opinion delivered by Talcott J. (p. 337), that the defence was based solely upon defendant's right to have his own deed actualli/ reformed ; that such affirma- tive relief could not be granted in this action, because H. and M. were not par- ties thereto ; and therefore defendant could not avail himself of his right as a defence. Cramer v. Benton was also an action to recover land. The premises in question were originally owned by defend- ant and his brother Lewis B. in common ; they executed deeds of partition ; in one deed defendant conveyed all his interest in the premises in question and other lands to Lewis B., and through divers mesne conveyances the same were finally conveyed to the plaintiff, the defendant, however, remaining in possession during the entire period. The answer alleged a mistake in the original deed from defend- ant to his brother Lewis, by means of which the premises were improperly included therein, and that this mistake had been repeated in each deed down to the one which transferred the title to the plaintiff. Neither the brother Lewis B. nor any of the intermediate owners were parties. On the trial the defence was established, and the complaint was dismissed without any affirmative relief to the defendant. Talcott J. delivered the opinion of the General Term on Appeal, and, after quoting the section of the code which expressly permits equitable de- fences, he proceeds (p. 225) : " This seems to have been construed to embrace equi- table causes of action aflTecting the equita- ble right of the plaintiff to enforce his le- gal cause of action, and probably such was the intention of the provisions referred to. In this enlarged sense an equitable defence or counter-claim to a legal cause of action can mean nothing less than such a state of facts and parties as would in- duce a court of equity to interfere, and restrain the prosecution of the action at law." He goes on to hold that there must be such a case as would induce a court of equity to reform the deed ; not that an actual judgment of reformation must necessarily be pronounced if the defendant waives it, or does not demand such full relief, but there must be the same facts which would be the basis of such a decree giving that affirmative relief. In the present case a court of equity would not grant the relief, be- cause the proper parties were not before the court. Judge Talcott avoids the exactly contrary ruling of the Court of Appeals in Dobson v. Pearce, 12 N. Y. 156, and Phillips v. Gorham, 17 N. Y. 270, by asserting that the point in ques- tion was not brought to the attention of that high tribunal when they made their decisions in those cases. The doubtful and hesitating manner in which the learned judge speaks of equitable de- fences in general at the commencement of the above quotation is somewhat re- markable in the face of the express re- quirements of the statute, and of repeated decisions made by the courts of this and NATURE OF EQUITABLE DEFENCES. 113 legal. If every equitable defence, in order to be available, must consist in an affirmative recovery of specific relief against the plaintiff, or at least in the right to recover such relief if the de- fendant choose to enforce it, for exactly the same reasons, and with exactly the same force, it might be said that every legal defence, in order to be available, must consist of an off-set or counter- claim. In fact, the codes, without exception recognize the cor- rectness of the rule stated in the text. The sections which prescribe the form and contents of the answer enumerate " de- fences," legal and equitable, and counter-claims. A recovery of equitable relief by defendant is as truly a counter-claim as the " recovery of pecuniary damages ; ^ and the statute thus expressly other States in giving construction there- to. The conclusion at which lie arrives is in exact opposition to the very ratio decidendi of the Court of Appeals in the cases referred to ; and the assumption that the real point involved in the discus- sion had escaped the attention of that court is, to say the least, gratuitous. The fallacy running through the whole judg- ment is the confounding of facts and rights arising therefrom used defensively, and the same facts used as the basis of affirmative relief. In Kenyon v. Quinn, 41 Cal. 3i5, which was an action to recover land, the plaintiff held the legal title in' trust for the defendant, while the defend- ant held the equitable title, and could have compelled a conveyance; but the defendant did not plead any of these facts, nor any equitable defence, in his answer. The court held that an equitable title must be pleaded, and appropriate relief must be demanded, in the answer ; .ind, this not being done, the defence could not be proved. The same point was decided in Cadiz v. Majors, 3.3 Oal. 288 ; Clark v. Lockwood, 21 Call. 220. The position here taken, to the effect that affirmative relief must be demanded in the answer, is a mere dictum. The objection that the defendant had omitted to set up his equi- table defence at all plainly disposed of the whole case. The question is put at rest in California. Bruck v. Tucker, 42 Cal. 352 ; Miller v. Fulton, 47 Cal. 146. Later Wisconsin cases have settled the rule for that State ; and, in fact, a special provision of the code leaves no doubt. R. S. ch. 141, § 7, expressly requires the defendant, in pleading an equitable de- fence, to demand such affirmative relief as he is entitled to. In Lombards. Cow- ham, 34 Wis. 486, 492, the court said, " The defence, being an equitable one, to be available in an action of ejectment, must be set up in the answer, and be ac- companied by a demand for such relief as the defendant supposes himself entitled to. A mere equitable defence is not suffi- cient; there must he a counter-claim also." It was further said that Kent v. Agard, 24 Wis. 378, does not conflict with this doc- trine. See Du Pont v. Davis, 35 Wis. 634, 639 ; Hills v. Sherwood, 48 Cal. 386, 392. In Minnesota it is said tliat an equitable defence in an action to recover land must be so strong and clear an equi- table tide in the defendant, as, in the ab- sence of fraud or mistake, to entitle him to a decree for a conveyance on a bill for that purpose. M.cClafle v. White, 5 Minn. 178, 190. See Webster v. Bond, 9 Hun, 437 (Comp. Hicks v. Sheppard and Cra- mer V. Benton, supra) ; Ten Broeck v. Orchard, 74 N. C. 409 ; Quebec Bank v. Weyand, 30 Ohio St. 126; Hatcher v. Briggs, 6 Oreg. 31 ; Pennoyer v. Allen, 51 Wis. 360; 50 Id. 308; Lawe o. Hyde, 39 Id. .345 ; Henkle v. Margerum, 50 Ind. 240 ; Winslow a. Winslow, 52 Id. 8 ; Thompson v. Fall, 64 Id. 382 ; Kinefield V. Hayes, 57 Cal. 409. 1 See infra, chap, iv., sec. 6. Affirma- tive relief will of course be given in proper cases. As an illustration, see Blake v. Buffalo Creek R. R., 66 N. Y. 114 CrVIL BEMEDIES. distinguishes between equitable defences as such and the recov- eries of aiErmative equitable relief. The cases which will be referred to in subsequent paragraphs show that the overwhelming weight of authority sustains the doctrine which I have stated as the correct construction of the codes. § 92. I now pass to the consideration of the cases in which equitable defences have been admitted. It will be impossible to state any exhaustive rule derived from the decisions thus far made by the courts ; for it cannot be supposed that they have exhausted the instances in which this species of defence is proper. There does not seem to be any limit to the use of such defences other than is found in the very nature of equity jurisprudence itself. Whenever equity confers a right, and the right avails to defeat a legal cause of action, — that is, shows that the plaintiff ought not to recover in his legal action, — then the facts from which such right arises may be set up as an equitable defence in bar. There can be no other limitation, unless we would defeat the plain intent of the statute, and return to the old method of granting to the defendant a decree in equity from which a legal defence may arise. The following cases are intended as illustrations and examples rather than as a full enumeration of the possible instances in which the defence may be inter- posed. § 93. In an action brought to recover damages for the breach of covenants contained in a deed of conveyance, the defendant may set up, as an equitable defence, a mistake in the instrument which should be corrected ; as, for example, in such an action on a covenant against incumbrances, the alleged breach being an outstanding mortgage, the defendant may show the original agreement to except such mortgage from the operation of the covenant, and that by mistake the exception was omitted.^ In an action upon a judgment recovered against the defendant, the latter pleaded that the judgment was originally obtained by fraud, and that he had instituted a suit in equity against the judgment creditor in the State of Connecticut, in which the judgment had been decreed to be void, and its enforcement had been enjoined. These facts constituted a perfect eqi;itable defence and complete 485, 493, 494 ; Bailey v. Bergen, 4 N. Y. case that the defendant could set up this Sup. Ct. 642. matter as a defence, but could not have any 1 Haire v. Baker, 5 N. Y. 357. The affirmative relief. This latter position New York Court of Appeals held in this has been since abandoned by the court. EXAMPLES OF EQUITABLE DEFENCES. 115 bar to the action.^ In an action to recover damages for the non- performance of an executory contract to run a steamboat on a certain route for the plaintiff, the answer alleged a mistake in drawing the contract by which a proviso was omitted that would have excused the defendant's failure to perform, and prayed a reformation. The New York Court of Appeals sustained the defence, saying : " The court below clearly erred in holding that the equitable defence could not be tried in this action. That it could be is too thoroughly settled to admit of further dispute." ^ The defence may arise from facts occurring subsequent to the joinder of issue, and require to be interposed in a supplemental answer. On the day of trial of an action for work and labor, the parties met, had a negotiation, and settled the controversy, by the terms of which settlement the suit was to be abandoned. The plaintiff afterwards repudiating the compromise and proceeding with the trial of the cause, the defendant, after tendering perform- ance, was permitted to set up the facts in a supplemental answer; and it was held that they constituted a perfect eqiiitable bar.^ § 94. The action to recover possession of land — analogous to ejectment — is the one in which the equitable defence is the most frequent ; and here, of course, it assumes a great variety of shapes.* Those, however, which are the most common are the right to a correction of either the plaintiff's or the defendant's muniments of title because of mistakes therein; the right to a ' Dobson u. Pearce, 12 N. Y. 156, 165. specifio performance by reducing it to This is the leading case in New York. It writing would have been useless; and fully estabhshes the doctrine that an equi- there could be no specific performance of table defence may be pleaded as a har, the substance of the agreement, when no affirmative relief is asked, or * An answer setting up a mortgage of could be granted if asked. The ratio deci- the land in question, given by the plaintiff chndi was tersely summed up by Johnson or his predecessors, default in payment of J. " The question now is, Ought the the debt secured thereby, and possession plaintiff to recover? and anything which of the land by defendant under the mort- sbows that he ought not is available to gagee, states a good equitable defence to the defendant, whether it was formerly an action brought to recover possession of equitable or legal cognizance." Pen- of the premises. Harrington i>. Portner, noyer u. Allen, 51 Wis. 360; 50 id. 308 58 Mo. 468, 474; Hubble u. Vaughan, 42 (action to abate a nuisance). Mo. 138; Maxwell v. Campbell, 45 Ind. 2 Pitcher v. Hennessey, 48 N. Y. 415, 360, 863 ; Hammond u. Perry, 38 Iowa, 422. In this case the defendant asked 217. See also Collins v. Rogers, 63 Mo. and obtained the reformation. 515 ; Ten Broeck o. Orchard, 74 N. C. 8 Kelly V. Dee, 2 N. Y. Sup. Ct." 286. 409; Heermans v. Robertson, 64 N. Y. No aflSrmative relief was asked or grant- 332 ; McManus v. Smith, 63 Ind. 211 ; ed, and it would seem that none was pos- Thompson v. Fall, 64 id. 382 ; Hoppough sible ; the arrangement was oral, and a v. Struble, 60 N. Y. 430. 116 CIVIL REMEDIES. speciiic performance by the plaintiff of his contract to convey the land ; and the right to a cancellation of a conveyan(je on the ground of fraud. These three classes of defences are found in numerous forms according to the different circumstances which may arise in the transactions of life and the affairs of business ; but they may all be reduced to the same general principle. In some instances the equitable rights have been admitted in a purely defensive character, and in others the judgment has awarded affirmative relief to the defendant. In one case, the plaintiff having proved title in himself by means of a deed from the conceded original owner, the defendant, by way of an equi- table bar, alleged that, prior to the plaintiff's conveyance, he had purchased of the said owner several parcels of land, including the one in question, that the deed from such original owner should have contained a description of the premises claimed by the plaintiff, but by mistake it was omitted. This defence was sustained as an equitable bar without an actual reformation of defendant's deed ; ^ and in the same manner a mistake in a deed from the plaintiff to the defendant, by which the land in suit was omitted, may be made the basis of an equitable defence without any actual reformation asked or granted.^ The title of the plain- tiff in another similar action being claimed under a sheriff's deed given in pursuance of a sale on execution against the original owner, the defence was that at the sale the sheriff expressly ex- cepted the parcel of land in question therefrom, that his certificate and deed omitted such exception and included a description of the premises b}"- mistake, and that the owner subsequently con- veyed to the defendant. The court, on the defendant's demand, reformed the plaintiff's deed, and admitted the defence.^ In a similar action, where the plaintiff's title was through a sheriff's deed, executed to him as purchaser at an execution sale against the person who was the admitted source of title, the defendant pleaded, as an equitable defence, an equitable mortgage arising prior to the inception of the judgment lien, and his own posses- sion under the same. These facts were held to constitute a good defence without affirmative relief asked or granted.* 1 Crary v. Goodman, 12 N. Y. 266, s Bartlett v. Judd, 21 N. Y. 200, 203. 268. See also Guedici v. Boots, 42 Cal. * Chace v. Peek, 21 N. Y. 681. The 452, 456. court having first decided that the facts 2 Hoppough u. Struble, 2 N. Y. Sup. alleged constituted the defendant an equi- Ct. 664. table mortgagee, so that his possession EXAMPLES OF EQUITABLE DEFENCES. 117 § 95. Equitable defences are very frequent in actions brought to reco\er possession of lands by the vendors against the vendees, when an agreement to convey the land in question has been entered into.^ As illustrations, the following have been upheld : when the complaint alleged the non-payment of the purchase price at the stipulated time, and a consequent forfeiture, the defence at the time of payment had been extended by an oral agreement, and that a tender had been duly made in compliance with such agreement ; ^ in an action in all respects the same on the part of the plaintiff, the defence that a tender had been made and kept good, the court expressly refusing to grant the affirma- tive relief of specific performance to the defendant.^ The ven- dee's right to possession under a contract to convey is a very familiar species of equitable defence to actions brought to recover the land by the vendor.* In an action by the grantee of the vendor, who took with constructive notice of the defendant's in- terest, the right of the vendee's assignee to possession and to a deed of conveyance is a good equitable defence in bar.^ To an action for the foreclosure of a mortgage executed by the defend- ant to the plaintiff's assignor, the answer alleged a mistake in the instrument in relation to the terms and times of payment, claiming that, when corrected, nothing would be due, and de- manded the affirmative relief of a reformation. This remedy was under it would be a good equitable de- id. 619 ; Hubbell u. Von Schoening, 49 fence, stated the rule in a very accurate id. 330, 331 ; Giles v. Austin, 62 id. 486 ; and condensed manner, per Denio J. (p. Ingles ». Patterson, 36 Wis. 878. 586) : "But, since the blending of legal ^ Cythe v. Fountain, 51 Barb. 186, 188. and equitable remedies, a different rule ' Harris v. Vinyard, 4'2 Mo. 568. must be applied. The defendant can de- * Petty v. Malier, 15 B. Mon. 604 ; feat the action upon equitable principles ; Onson o. Cown, 22 Wis. 329. But it is and if, upon the application of these prin- held in Kentucky that in an action for ciples, the plaintiff ought not to he put into trespass to lands, brought by a vendor in possession of the premises, he cannot recover in possession against the vendee, the rights theaction." The principle so concisely and of the latter under his contract do not clearly enunciated is a complete answer constitute an equitable defence for the to the reasoning of Mr. Justice Talcott, trespass, which was an entry upon the quoted supra in the note to § 91. See land under a claim of right founded upon MeLane v. White, 5 Minn. 178 ; Richard- the contract ; in other words, the contract son V. Bates, 8 Ohio St. 257, 264. does not give the vendee a right of entry, 1 In Cavalli v. Allen, 57 N. Y. 508, 514, although it would be an equitable defence it was held that the vendee in possession to an action brought to recover the land may set up, as an equitable defence, the if he was already in possession. Creager same equitable rights which he could have v. Walker, 7 Bush, 1, 8. enforced had he brought an action for a ^ Talbert v. Singleton, 42 Cal. 390, 895, specific performance. Duffy v. O'Don- 396; Cavalli v. Allen, 67 N. Y. 508. ovan, 46 N. Y. 227; Laird v. Smith, 44 118 CIVIL REMEDIES. granted by the court, although the mortgagee was not a party to the action.! In pleading an equitable defence, all the facts should be averred which are necessary to the existence of the equitable right. In many instances this right is, from the nature of the case, a right to affirmative remedy ; and, whether this remedy is demanded or not, the answer should contain all the substantial facts that would be found in a cross-bill in chancery.^ § 96. These defences are not, however, confined to actions in- volving the title to lands, or those brought upon contracts relat- ing to land ; they are proper in actions based upon mercantile agreements, and in all others where an equity may arise and affect the rights of the parties. The complaint in an action upon a promissory note demanded judgment for a certain balance unpaid. A defence that the note was given upon a settlement, and that by mistake the amount was made too large by a certain sum which was more than the unpaid balance claimed by the plaintiff, was held a good equitable bar to the action, without iinj specific relief demanded or awarded ; ^ and in an action upon a policy of reinsurance the recovery was defeated by the fact, set up in defence, that the same person acted as agent for both the parties in procuring the policy to be issued, and that his agency for the plaintiff was unknown to the defendant at the time.* 1 Andrews v. Gillespie, 47 N. Y. 487, ' Seeley v. Engelf, 13 N. Y. 542, re- 490. The objection of the want of tlie versing s. c. 17 Barb. 530. See Becker v. mortgagee as a party was expressly taken Sandusky City Bk., 1 Minn. 311. Also and as expressly overruled, tlie court hold- in actions on notes, see Heron v. Jury, ing that he was not a necessary party in Idaho R. 228 ; Holland v. Johnson, 61 order to a judgment of reformation. Ind. 346; Henkle v. Margerum, 50 Id. 2 See Bruck v. Tucker, 42 Cal. 346, 240. 352, per Wallace J. " It must be con- * N. Y. Central Ins. Co. u. Nat. Pro- sidered as settled |in California] that, in taction Ins. Co., 14 N. Y. 85- 20 Barb, interposing such a defence, tlie defendant 468. This case was peculiar. The de- becomes an acfor, and the defence inter- fence established was not averred but the posed a pleading in equity, the sufficiency answer was merely a denial saying, of which, in matter of substance, though "They deny that they made,' and ex- not in point of mere form, is to be deter- ecuted a policy of insurance, or' delivered mined by the application of the rules of the same to the plaintiff, as stated in the pleading observed in courts of equity in said complaint." On the trial the evi- cases of like character." Cites, as deci- dence establishing the defence stated in sive of this rule, Estrada v. Murphy, 19 the text was admitted without objection ; Cal. 272 ; Lestrade v. Barth, 19 Cal. 660; and the Court of Appeals held that how- Weber V. Marshall, 19 Cal. 447 ; Blum v. ever improper under the answer if ob- Robinson, 24 Cal. 127 ; Downer v. Smith, jected to, as the plaintiff had failed to 24 Cal. 114. See Hughes v. Davis, 40 object, it could not raise the objection in Cal. 117 ; Arguello v. Edinger, 10 Cal. the Appellate Court. The result was 150 ; Clark v. Huber, 25 Cal. 593, 697. that a defence conceded to be purely AFFIKMATIVE REUEF TO THE DEFENDANT. 119 Here, also, no aflBirmative relief was granted ; nor could any have been given except cancellation of the policy, which would cer- tainly have been entirely useless. The assignee of a lease bring- ing an action for the rent, the deiendant averred that the assignment to the plaintiff, although absolute in form, was in fact given as collateral security for the payment of a note, that the note had been paid, and that the interest of the plaintiff had thereby ended. This defence was sustained, and here, also, no affirmative relief could have been essential to the defendant's security or protection under any circumstances ; the judgment in his favor was a bar to all possible further action on the lease by the plaintiff or his assigns.^ In all the foregoing instances the single equitable defence has been spoken of as though it stood alone, unconnected with any others. An equitable defence, how- ever, may be joined with any other defences, legal or equitable, which may possibly arise in the action. In many of the cases referred to in the text and cited in the notes, other defences were spread upon the record. Thus, in the action upon a policy of insurance, any of the customary legal defences of misrepresenta- tions, breach of warranties, non-compliance with provisions of the policy in regard to proofs, and the like, might have been pleaded and proved in connection with the equitable defence which was interposed.^ § 97. The remaining question to be considered is, When will affirmative equitable relief be granted to the defendant upon the facts which he alleges in his answer as constituting an equitable bar to the plaintiff's recovery ? The New York Court of Appeals, in an early case, expressly held that in an action upon a covenant against incumbrances in a deed of lands, brought to recover dam- ages for a breach thereof by means of an outstanding mortgage, the defendant may show, by way of equitable defence in bar, a mistake in the deed by which an exception of that very mort- gage was omitted from the covenant, but that he could not have, in that action and upon an answer setting up all these facts, the affirmative relief of reformation. The case was decided, and the equitable was proved tinder a denial only. ^ See Bennett u. Titherington, 6 Bush, See observations of Denio J. quoted in 192; Dorsey v. Reese, 14 B. Mon. 157; note to § 70. Smith v. Moberley, 15 B. Mon. 70, 1 Despard v. "Walbridge, 15 N. Y. 374, 73 ; Bosley v. Mattingley, 14 B. Mon. 878 ; Struman v. Kobb, 37 Iowa, 311, 813 ; 89, 91. Hablitgel v. Latham, 35 ib. 550. 120 CIVIL BEMEDIES. judgment sustained, expressly upon this distinction.^ Tiiis deci- sion, however, cannot be regarded as correct in the light of other subsequent adjudications made by the same court and referred to in the foregoing paragraphs. Affirmative relief may certainly be given to the defendant upon his answer in all cases where, from the nature of the subject-matter and from the relations of the parties, a specific remedy in his favor is possible according to the doctrines of equity jurisprudence, certainly in all cases where the answer can be considered as setting up a counter-claim. There are undoubtedly instances in which no such relief is pos- sible.2 Where, however, the nature of the subject-matter and of the relations between himself and the plaintiff are such that he could have maintained an independent suit in equity against the plaintiff and procured specific relief thereby, or could have filed a cross-bill under the old practice, he may now obtain the same remedy upon his answer, at all events, as was before remarked, if the demand alleged in the answer constitutes a valid counter- claim. This is undoubtedly the general rule. In a very few States, however, cross-complaints or petitions are expressly recog- nized by the codes in addition to counter-claims ; and the rule in those States may be that, if the demand for equitable relief do not constitute a proper counter-claim, it must be made in a cross- complaint or cross-petition, and not in an answer. Subsequently to the decision of Haire v. Baker,^ in New York, the Court of Appeals held, by way of dictum in Dobson v. Pearce,* that the defendant may obtain affirmative relief upon the answer which he pleads to the plaintiff's cause of action. Finally, the doctrine was expressly established as the basis of the decision. In an action to recover possession of land, where the plaintifiE held his title by a sheriff's deed given upon a sale under execution against the original owner, the defendant not only defeated the. recovery by proving a mistake in the sheriff's deed, but obtained a judg- ment reforming that deed by correcting the mistake.^ "While in 1 Haire v. Baker, 5 N. Y. 357 (1851). assignment, because he had no interest in 2 The case of Despard v. Walbridge, orpowerover the instrument in question ; cited supra, seems to be such a one. much less could he have obtained any The defendant had a right to prevent relief against the lease. His right was a recovery against himself by one who purely defensive. had no interest in the lease ; but he 3 Haire v. Baker, 5 N. Y. 357. certainly could not have enforced a re- * Dobson u. Pearce, 12 N. Y. 156, 165, assignment of the lease from the plaintiff per Allen J. to his assignor, nor a cancellation of that « Bartlett v. Judd, 21 N. Y. 200, 203. AFFIEMATIVE RELIEF TO THE DEFENDANT. 121 some States the answer may be turned into a cross-petition, and affirmative relief obtained,^ yet this proceeding does not seem to be necessary, even in those States where the practice provides for such cross-petition or cross-complaint ; the defendant may have the proper affirmative relief to which he is entitled upon his answer.^ In Missouri, however, it would seem that affirmative equitable relief can never be granted to the defendant upon his mere answer.^ In extreme contrast with this position is the doctrine, already discussed, which refuses to the defendant tlie benefit of an equitable defence as a bar to a legal cause of action, unless the facts relied upon are such that he would be awarded an affirmative remedy if he elected to demand a judgment con- ferring it.* The general subject of affirmative relief to defend- ants will be treated more at large in the subsequent sections upon " Counter-claim " and " Union of Defences in One Answer." On the trial the complaint was dismissed, but the remedy of reformation was denied. The General Term, on appeal, modified tliis judgment by granting the additional relief of reformation. Tliis latter ruling was affirmed by tlie Court of Appeals. Bacon J., after stating the relief which would have been granted in equity under the former system, added : " But this resort is no longer necessary, since by our present system an equitable defence may be interposed as well in an action of eject- ment as in any other form of proceeding, and the defendant may also claim in the same action any affirmative relief to which he shows himself to be entitled." 1 Massie v. Stradford, 17 Ohio St. 596. This was an action for trespass to lands. The defendant, in an answer by way of cross-petition, set up an equitable title to the premises in question, and prayed for a decree establishing the legal title in himself, and an injunction against the plaintiff's further prosecution of the ac- tion at law. Hablitgel v. Latham, 35 Iowa, 650 ; Hammond v. Perry, 38 ib. 217. 2 Klonne v. Bradstreet, 7 Ohio St. 322. Defendant can have no affirmative relief upon an answer by way of defence merely ; it must be demanded by a crosa-com- plaint, or by a counter-claim. Earle v. Hale, 31 Ark. 473 ; Tucker v. McCoy, 3 Col. 284 ; Abbott v. Monti, 3 Id. 561 ; Monti V. Bishop, 3 Id. 605; Sisty v. Bebee, 4 Id. 502 ; Mills v. Buttrick, 4 Id. 63, 123 ; Nippel v. Hammond, 4 Id. 211 ; Reed v. Newton, 22 Minn. 541 ; Quebec Bank v. Weyand, 30 Ohio St. 126 ; Doug- las V. Haberstro, 25 Hun, 262. Relief on a cross-complaint or cross petition. Marr v. Lewis, 31 Ark. 203 ; Abbott v. Monti, 3 Col. 661 ; Hatcher v. Briggs, 6 Oreg. 31 ; Kellogg u. Aherin, 48 Iowa, 299. - 8 Harris v. Vinyard, 42 Mo. 568. This was an action to recover lands. The de- fendant set up a contract of purchase from the plaintiff 's deceased father, pay- ment of the purchase price, and prayed a specific performance. This judgment was rendered by the court at the trial, and certainly there could be no simpler nor stronger case for equitable relief to the defendant than that of the vendee of land who is in possession and has paid the pur- chase price. The Supreitie Court, how- ever, while sustaining the defence as a bar, refused any affirmative remedy. See State V. Meagher, 44 Mo. 356. * See supra, § 91. 122 CIVIL EEMEDIES. SECTION FIFTH. A LEGAL REMEDY OBTAINED UPON AN EQUITABLE OWNERSHIP OR EQUITABLE PRIMARY RIGHT. § 98. A special case, arising from the general union of legal and equitable forms produced by the new system, requires a par- ticular examination. It may be properly presented under the form of the question whether the holder or possessor of a purely equitable primary right, or the owner of a purely equitable estate or interest, can maintain an action to recover a remedy which, before the change in procedure, was purely legal ; or, to express the same thought in terms not entirely accurate, but which are, nevertheless, in constant use, whether such holder of a purely equitable primary right, or owner of a purely equitable estate or interest, can maintain upon it an action at law to recover an ordinary legal judgment, either for possession or for damages ; to put the same question in a concrete form by limiting it to a particular class of rights and remedies, whether the owner of an equitable estate in land can maintain an action analogous to ejectment ? The action of ejectment was originally invented to enable a tenant for years to recover possession of the demised premises during the term, the ancient real action being confined to freehold estates. It was, during its existence and use as a strict common-law instrument, a possessory action ; and a judgment ren- dered in it never determined the question of title. Its use in try- ing titles was wholly a matter of convenience : no rule of the common law made it a means of settling a disputed controversy as to title. Nothing but the voluntary acquiescence of the de- feated party enabled it to produce even the semblance of such a result. Action after action might be brought, and the common law placed no obstacle in the way of such a succession of attacks. Equity alone devised the cumbrous method of an injunction suit to restrain the further prosecution, and to quiet the title of the party who had succeeded in several trials at law. Since the com- mon law paid the most rigid adherence to external forms, it is true that the action of ejectment, until changed by statute, was never used except for the recovery of demised premises ; and this form was preserved in the absurd fiction of making John Doe, as tenant of the real claimant, the plaintiff on the record. As the estate THE ACTION OF EJECTMENT. 123 for years, to protect which the action was originally invented, was a legal estate, the rule grew up, and was followed without exception, and from the very necessities of its form, that the ac- tion of ejectment could only be employed as a means of recovering possession of a legal estate. The common law undoubtedly knew no such thing as ejectment by the owner of an equitable estate, or the holder of an equitable title ; such estate or title could only be protected by a court of equity. § 99. This rule, however, was always a matter of mere external form ; it was one of the formal incidents of the action, as arbi- trary and technical as the fiction of the plaintiff's being a lessee. When the statute abolished all the distinctions between actions at law and suits in equity and between the forms of such actions, one might naturally have supposed that the formal rule thus described would have been at once abandoned. On the contrary, the courts of certain States, in which the new procedure has been adopted, continue to speak of actions of ejectment as though they were existing and fully recognized judicial instruments, with all their ancient and arbitrary incidents and requirements ; as though, in fact, there had been no great change sweeping away the very foundations of the ancient system. It is true, this reform legis- lation has not altered any primary rights nor final remedies ; an equitable right or estate is not turned into a legal right or estate ; and the remedies of pecuniary compensation and of possession of lands or chattels which were called legal because they could only be obtained by actions at law, and the other specific kinds of re- lief which were called equitable because they could only be ob- tained by si;its in equity, are left unaffected. One great change, however, has taken place which some courts seem at times to have forgotten ; all these remedies are now to be obtained by a single civil action, which it is neither appropriate to call legal nor equitable, because the distinctions between legal and equi- table actions have been destroyed. It may be well enough, in order to avoid circumlocution, to describe one class of remedies as legal and another as equitable, if it be constantly remembered that this nomenclature no longer depends upon the kind of action used in the pursuit of these remedies, and that they are all pur- sued and obtained by means of one action which has no distinc- tive and peculiar features depending upon the species of remedy granted through its instrumentality. 124 CIVIL KEMEDIES. § 100. Assuming these elementary doctrines of the new system of procedure, I am enabled, by applying them, to answer the pro- posed question upon principle ; I shall then compare the results thus obtained with the rules laid down by judicial decision. It must be conceded at the outset that every primary right, whether legal or equitable, when invaded,' should have a remedy or reme- dies appropriate to its nature and extent. When the right is possessory, there should be a remedy which restores possession ; when the right involves the ownership or title, there should be a remedy which establishes the ownership or title, or which restores the owner to his full dominion by removing obstructions to or clouds upon his title. The law gives these classes of remedies ; and the confusion into which some of the courts have fallen in reference to this subject results from a failure to distinguish be- tween these two kinds of primary rights, and the two correspond- ing kinds of remedies ; from an utter confounding of possessory rights with rights of ownership, and possessory remedies with remedies going to the ownership. Now, it cannot be doubted that where the question is concerning ownership, where the primary right invaded is one of ownership or title, and the remedy sought is correlative thereto, the equitable right must have an equitable remedy. If a person is clothed with an equitable title or owner- ship, from the very nature of the case his remedy must be equi- table, because the positive relief which he needs in almost all cases is the conversion of this equitable ownership or title into a legal one, which can only be done by a remedy within the competency of equity tribunals, — by a specific performance, a reformation, a re-execution, a cancellation, and the like. The only exception to the kind of relief described — the turning the equitable title into a legal one — is the remedy of injunc- tion, which is often necessary, and which does not change the nature of the title, but leaves it as it was. When, therefore, the object of the action and of the remedy demanded relates to ownership or title, unquestionably the equitable title must be judicially protected and aided by a remedy that is purely equi- table, and cannot be thus protected and aided by a remedy which is in form legal. § 101. This, however, is not true when the right is possessory, and the remedy demanded is a mere transfer or restoration of possession. There are equitable primary rights, titles, and THE ACTION OF EJECTMENT. 125 ownerships which entitle the holder thereof to the undisturbed possession of the land which is the subject-matter of the right or title. This proposition cannot be denied. A large part of the remedies once given by the Court of Chancery alone, and the whole range of equitable defences now allowed in legal actions, are based upon the conception that the equitable owner is entitled to possession as a part of his right. To deny this is to turn many of the familiar rules of the law into absurdity, and to .render much of the relief given by the courts self-contradictory. When the vendor under a land contract sues the vendee in possession to recover the premises, and the latter interposes his equitable right as a defence, and succeeds in defeating the action brought against him, that success is entirely due to the fact that he is entitled to the possession by virtue of his equitable title. Now, what the law permits to be done defensively, for the same reason, and by the application of the same principle, it should permit to be done affirmatively. There is no distinction in principle be- tween the two cases. It is simply absurd to say that a person in possession under an equitable title may defend and be kept in his possession by exhibiting that title in a legal action, but that, if he is out of possession, he shall not be allowed to recover his rightful possession by exhibiting his title in the same kind of action. In fact, when the courts, with almost perfect unanimity, decided that the equitable owner may rely on his title as an abso- lute bar — a merel}' negative defence — to the so-called action of ejectment brought against him, they decided in principle that he may obtain possession in the like action. Whenever, therefore, a person clothed with an equitable title or ownership which by its nature entitles him to the immediate possession of the land as against the party actually in possession, and he desires simply to obtain the possession, there is nothing in principle which can forbid him to maintain an action for that purpose, and recover the possession. To call such an action " legal " is no answer; for the rule which forbade an equitable right or title to be en- forced or even recognized in a court of law was a mere arbitrary matter of form, and has been expressly abolished. To call the action " ejectment " is no answer, because there is no such action, and all the technical rules which prevailed in respect to it at the common law have been swept away by the legislative command. The courts which now speak of " ejectment " as an existing 126 CIVIL REMEDIES. species of action, and which apply its rules to an action now- brought to recover possession of land, are so far disregarding the express terms of the statute and thwarting its plainest design. It is true that all equitable ownerships and titles do not carry with them the right of immediate possession of the land, and this argument is carefully limited to those which do involve this element in their proper nature. It might seldom happen that the equitable owner would be satisfied with a mere possessory remedy, but there are circumstances and situations in which, and parties against whom, such remedy may be very important, and may per- haps be the only one practicable. To illustrate by the most familiar and plain example, that of a vendee under a contract to convey land. Assume such an agreement completely fulfilled by the vendee. He is the equitable owner, and entitled to possession as against the vendor, and therefore as against all the world. Beyond a doubt as against the vendor, this equitable owner would prefer to bring an action to obtain a specific performance, and thus at one blow to consummate his title and remove all obstacles to the full enjoyment of his ownership ; but if he chooses to ask for a part instead of the whole, upon what grounds of prin- ciple, upon what reasons of policy, shall the courts refuse to award him the possession by compelling the vendor, who wrong- fully withholds, to surrender it up ? To say that the vendor has the legal title is no answer, and is a mere arguing in a circle, because the action and the remedy do not concern the title, and by the conceded rules of the law his legal title does not enable the vendor to retain possession from the vendee. If, however, a third person without color of right, and not the vendor, with- holds the possession, the reasons in favor of the vendee's main- taining the action are still stronger. Is it answered that in ejectment the defendant may succeed by proving legal title out of the plaintiff, because the plaintiff must recover upon the strength of his own title, and not upon the weakness of the de- fendant's? This, again, is a mere formula of words without any real meaning. There is no action of ejectment. The action sup- posed to have been brought is simply one to recover the possession to which the plaintiff is entitled from a defendant who has no right or color thereof ; and at best the rule invoked is the arbi- trary result of external and technical forms clustered about the common-law action, all of which have been swept out of existence ACTION FOR POSSESSION BY AN EQUITABLE OWNER. 127 with the action itself. Unless, therefore, it is established that the common-law form of action called " ejectment," with all of its incidents, still remains in full force and effect, notwithstanding the peremptory provisions of the statute which have in terms abrogated them, I have demonstrated that there is no reason or ground in principle for refusing to permit the owner of an equi- table estate, which entitles him to immediate possession, to main- tain an action for the purpose of recovering that possession. We may call the action legal or equitable, and it makes no diflference. The sum of the whole matter is, a person is clothed with a right over land which by its essential nature confers upon him the right of immediate possession ; he should be, and on principle is, permitted to enforce that right and obtain possession, if that remedy is all he demands, even though he might, if he chose, avail himself of a higher and more efficient remedy. The same course of argument applies with equal force to rights over chat- tels as well as over lands, wherever there can be an equitable ownership of chattels. § 102. I have now to compare the result of a discussion of the question upon principle with the doctrine which is established upon the authority of decisions thus far made ; and I concede at the outset that in numbers the judicial decisions are decidedly opposed to my conclusions. In accordance with its general theory, that a distinction between legal and equitable actions is still pre- served, the Supreme Court of Missouri has held, in a long series of cases, that the owner of an equitable title can under no circum- stances obtain legal relief, but shall be driven to two actions, — the first to turn the legal into an equitable estate, and the second to obtain possession.^ The same doctrine has been established in Wisconsin, and has been extended to waste, on the ground that the actions of ejectment and waste must be brought by one having the legal ownership, and that he must recover on the strength of his own title.^ It would seem that the same rule had been adopted 1 Eeed v. Eoberteon, 45 Mo. 580, and resort to a suit in equity to compel a per- cases cited in the note to § 79. See, liow- formance of his trust by the defendant, ever, Henderson v. Dickey, 50 Mo. 161. The other case ,cited sliows that the In Reedw. Robertson the defendant was a court of Missouri has modified its views trustee, and held the legal title in trust to in relation to relief of possession accom- convey the same to the plain tiffl. It was pariying other specific equitable relief, but adjudged that the plaintiff could not goes no farther. See supra, § 79, n. maintain a simple action for possession, — ^ Eaton v. Smith, 19 Wis. 537 ; Gillett called by the court ejectment, — but must v. Treganza, 13 Wis. 472, 475. The lat- 128 CrVIL EEMEDIES. in Indiana, although this is by no means certain. A series of cases have held that a plaintiff, alleging a legal ownership and right of possession, cannot recover upon proof of an equitable ownership ; that an action to recover possession of lands, where the pleading contains such averments, is analogous to the com- mon-law ejectment, and the plaintiff " must recover on a legal title, and not on an equitable title." ^ In California, the doctrine is established in the most general form, that the holder of an equitable title cannot maintain an action to recover the possession, because, in the language of the courts, " in ejectment the legal title must prevail ; " ^ and a like rule seems to prevail in lowa.^ § 103. In New York there is a conflict of opinion, as shown by the reported cases. The Supreme Court has held, in accordance ter case was an action to recover posses- sion and damages for waste, the com- plaint disclosing an equitable title in the plaintiff. Dixon C. J. said: "The ac- tions of ejectment and waste, being legal remedies, must be brought by the person legally interested in the property, and can- not be maintained by a cestui que trust, or other party liaving only an equitable in- terest." Citing 1 Chitty's Pleading, 60, 289, 290. One might have supposed that the code of procedure had somewhat less- ened the authority of Chitty's Pleadings in regard to the forms of actions in that State. 1 Groves v. Marks, 32 Ind. 319 ; Eowe V. Beckett, 30 Ind. 154 ; Stehman v. CruU, 26 Ind. 436. In Groves v. Marks the ac- tion was called ejectment. The com- plaint alleged that the plaintiff was owner in fee-simple, and entitled to possession. On the trial it appeared that the plaintiff was a vendee under a land contract. Gregory J. said (p. 320) : " It is claimed that the plaintiff could recover in this form of action on an equitable title. We gave the question a careful consideration in Eowe v. Bennett ; and the conclusion there arrived at is perfectly satisfactory to our minds. In an action under the code for the recovery of real property on a complaint averring the legal right of the plaintiff to the possession, he must recover on a legal and not on an equitable title." Eowe V. Bennett presented , exactly the same facts, and the court placed the deci- sion upon exactly the same grounds. Steh- man V. CruU was also a case of the same nature, and the court said : " The action to recover possession of real property under the code, where the complaint is on the legal title, takes the place of the old ac- tion of ejectment ; and the plaintiff must show a legal title to the possession before he can recover." The case was there put on the ground that there was a complete failure of proof, and not a mere variance. These decisions do not establish a doc- trine necessarily opposed to that which is advocated on principle in the text ; they do not pass upon the effect of an action in which the complaint discloses an equi- table title, and demands possession. 2 Emeric n. Penniman, 2G Cal. 119, 124 ; Clark v. Lockwood, 21 Cal. 222. See Hartley v. Brown, 46 Cal. 201 ; Buhne V. Chism, 48 Cal. 467, 472 ; also Morton V. Green, 2 Neb. 441. 3 Walker v. Kynett, 32 Iowa, 524, 526, per Beck J. : " It cannot be claimed that, in an action at law, lands may be recov- ered against one holding the legal title, on the ground that his title is based on fraud. One holding such a title may suc- cessfully plead it against the equitable claim of another attempted to be enforced at law. In order to defeat a fraudulent title, it must be attacked in chancery, and in that forum declared void. A person holding the equitable title, in order to re- cover, must cause the adverse legal title to be declared void." But see Brown v. Freed, 43 Ind. 253, 254-257. ACTION FOR POSSESSION BY AN EQUITABLE OWNEK. 129 with the doctrine laid down in Missouri, "Wisconsin, and Cahfor- nia, that the holder of an equitable title cannot recover possession, even against a mere intruder, but that he must first procure his equitable to be changed into a legal ownership by the judgment rendered in an equity action, and thus put himself in a condi- tion to maintain ejectment. ^ The Court of Appeals in New York has reached a conclusion directly the contrary in a case where the facts and the form of the proceeding made the decision necessary and final. The ruling was, therefore, not a dictum, but was the very ratio decidendi, and involved a principle which fully sustains the reasoning and doctrine of the text, although the case did not in form present the naked question under discussion. A plaintiff who had only an equitable title was permitted to recover a judgment for possession, based upon a verdict, where no other relief was granted, against a defendant who held the legal title under a deed regular on its face. This decision goes to the full length of the doctrine which I have advocated ; for, although the complaint demanded the specific equitable relief of cancellation and reconveyance as well as possession, yet on the trial, which was had before a ]vlvj, and was conducted in all respects like the trial of a legal action, these demands for relief were entirely ignored ; the single question of the plaintiff 's right to possession was submitted to the jury, and upon their verdict a judgment for possession was rendered, which was affirmed by the tribunal of last resort.^ In Kansas, under an express provision of the code, the holder of an equitable title may maintain an action to recover possession of the land. ^ 1 Peck V. Newton, 46 Barb. 173. The the possession. The court refused this plaintiff's title was equitable, in substance request, and instructed the jury that the tliat of a vendee. The defendant, so far as plaintiff could recover in this action if the case shows, was without color of right, the facts averred by him were found to The complaint merely demanded posses- be true. Although the Court of Appeals sion. See opinion of Parker J. in note does not in its opinion discuss the ques- to § 68. tion in the form now presented by rae in 2 Phillips V. Gorham, 17 N. Y. 270. the text, its decision, as it seems to me, The complaint alleged the equitable title necessarily involves that question, and in the plaintiff. The question was pre- answers it in the most explicit manner, sented in the sharpest manner on the If the complaint had not contained the trial by the requests made on the part of prayer for equitable relief, which was dis- the defendant and by the charge of the regarded, the question would have been court. The defendant asked the court to the same in form with that under consid- charge that the plaintiff was not entitled eration. Also, Murray v. Blackledge, 71 to a verdict, that he should have procured N. C. 492. a judgment declaring the defendant's ' Kansas Pac. R. K. v. McBratney, 12 deed void, and then brought an action for Kan. 9. 9 130 CIVIL KEMEDIES. § 104. There is another class of actions which have been admitted by some courts as a consequence of the reform legisla- tion, which could not have been maintained prior to the change. It was a familiar doctrine that one partner could not maintain an action at law against a copartner to recover any sum which was a portion of the firm assets, or to recover any sum claimed to be due by virtue of their common partnership dealing or joint undertak- ings, unless there had been prior to the suit an account stated and a balance agreed upon between them, or unless the defendant had expressly promised to pay the sum sought to be recovered. In other words, the plaintiff in his declaration was obliged to aver either the accounting together and thfe balance struck, or the express promise. If he did not, he would be either nonsuited at the trial or his pleading would be held insufficient on demurrer. If there had been no such account stated or express promise, his only remedy was by an action in equity for an accounting ; and, hav- ing obtained jurisdiction of the matter, the Court of Chancery would decree payment of the amount due. This doctrine is too familiar to require the citation of authorities in its support. The Supreme Court of Indiana has held that this rule is abrogated by the code of procedure, and that a partner may maintain an action to recover a sum due from his copartner, by reason of their joint business, without averring or proving any settlement or express promise, i The same doctrine has been applied in Mis- souri to owners in common generally who are not partners. ^ The old rule is retained, however, in most of the States ; and an action by a partner to recover a sum of money from his copartner, alleged to have become due by reason of their joint undertakings, is not permitted, unless based upon a mutual settlement or an express promise. It is so held in California, ^ and in New York,* and in other States ;S and this is beyond doubt the correct inter- 1 Heavilon v. Heavilon, 29 Ind. 509 ; v. Carlisle, 2 Cat. 420 ; Stone v. Fouse, 3 Shalter !,. Caldwell, 27 Ind. 376; Duck Cal. 292; Barnstead ,.. Empire Mining V. Abbott, 24 Ind. 349. The last case is Co., 5 Cal. 299; Ross v. Cornell, 4-5 Cal. directly in point ; for the complaint alleged 133 ; Pico v. Cuyas, 47 Cal. 174, 179. tlie partnership, and sought to recover the * Emery v. Pease, 20 N. Y. 62. plaintiff's share in the proceeds. See 6 Wood w. Cullen' 13 Minn. 394, 397; also Jemi.son v. Walsh, 30 Ind. 167. But Lower v. Denton, 9 Wis. 268; Shields v. per contra, Briggs v. Daugherty, 48 Ind. Fuller, 4 Wis. 102 ; Smith v. Smith, 33 247, 249, seems to abandon this position. Mo. 557 ; M'Knight v. M'Cutchen, 27 Mo. 2 Rogers i: Penniston, 16 Mo. 432, 435. 436 ; Springer v. Cabell, 10 Mo. 640. But 8 Russell o. Byron, 2 Cal. 86 ; Buckley see, for examples where an action may be ACTION BETWEEN PARTNERS. 131 pretation of the codes. The contrast between this case and the one previously discussed is plain ; and an analj^sis of these eon- ti-asting features will do much toward elucidating the general principles which regulate the union of legal and equitable actions and remedies. When a person has an equitable ownership of land of a kind which entitles him to immediate possession, his remedial right to possession is in exact conformity with his primary right of ownership. The denial of this remedy of simple possession under the former system was based solely upon technical and arbitrary notions incidental to the mere external forms of actions and modes of adjudication which prevailed in the two classes of courts ; and when these external forms, with their incidents, were removed, a way was opened for redressing the primary equitable right in a manner exactly conforming with its own nature and extent ; that is, a primary equitable right or interest calling for possession can be redressed by granting possession. In other words, the ancient rule denying to an equitable owner the rem- edy of bare possession in the cases described was one of the " distinctions " and " forms " in express terms abolished by the legislature in enacting the new procedure. Courts which continue the denial because " ejectment could not be brought by a holder of an equitable title," or because " the legal title must prevail," overlook the real nature both of the right to be redressed and of the remedy to be conferred, and pay a regard only to the techni- cal notions of form which hampered the common-law courts in all their movements, and which became at last so grievous a restraint upon the administration of justice that the legislature was compelled to intervene. In the other case, however, the reasons of the rule were very different, and were founded upon the nature of the primary right itself, and not upon any formal inci- dents of the judicial proceeding by which it was redressed. A partner is not suffered to maintain the action in question because his primary right, flowing from the fact of partnership, is not of such a nature as to call for a remedy of that kind ; that is, a judgment for the payment of a certain sum. The right to the recovery of a certain sum of money, unless arising from tort, must, according to the common-law, be based upon a promise express or implied. It does not affect this principle to say that maintained, Wliitehill v. Shickle, 43 Mo. Eussell v. Grimes, 46 Mo. 410; Buekner 637 ; Seaman v. Johnson, 46 Mo. Ill ; v. Ries, 34 Mo. 357. 132 CIVIL REMEDIES. the common-law doctrine of implied promises was itself largely founded upon a fiction. Granting this to be true, as it undoubt- edly was, still the theory was firmly established that the liability spoken of arose either from an express promise or from acts, events, or relations which created a duty to pay, and which duty the law conceived of as springing from an implied promise. If we discard the notion of an implied promise, therefore, as ficti- tious, there must still be a relation existing between the parties, from which the duty takes its origin ; and without the existence of such a relation there was no duty on the one side, and no primary right on the other. Now, it was an elementary doctrine of the law pertaining to partnership that, resulting from their mutual dealings with their joint assets, no promise is ever implied that one partner shall pay to the other any definite sum as the amount due from the proceeds of the undertaking, or as his share of the joint assets. No promise is ever implied from the existence of this relation, from the mere fact of there being a joint busi- ness, joint profits, or joint property. Or, to express the same doctrine without the use of fictitious terms, from the relation of partnership and the joint undertakings and assets thereof, the law imposed no duty upon one partner to pay to the other any definite sum in respect of his share therein, and gave no corre- sponding primary right to that other to demand such payment. If, however, there has been an accounting, so that a balance in favor of one is ascertained, a promise is implied on the part of the other — or a duty arises on his part — to pay that sum. The right to maintain the action by one partner against another, and to recover a definite sum, depended therefore, and still depends, not upon anything connected with the form of the action, or upon the distinctions between legal and equitable actions, but upon the very nature of the primary right. Those courts which have held that, under the new procedure, a partner may recover a definite sum from a copartner without an accounting and without an express promise, have in effect decided that the new procedure has materially changed the primary rights of parties, has, in this instance, created a primary right which did not before exist at all, which is a conclusion in direct antagonism with the plainest and best-settled principles of interpretation. In fact, this primary right of a partner against his fellow has not been modified by the reform in the modes of procedure ; and under the new system, as ACTION BETWEEN PARTNERS. 133 under the old, there should be no recovery of a definite sum in any action, unless the facts which create the primary right have occurred, — unless there has been or is an accounting and balance ascertained, or an express promise to pay the sum. It is not the case of an equitable primary right being supported by a legal remedy, because the equitable primary right of the partner does not involve the payment of a certain sum ; its only remedy is an accounting, and this is preserved in full force and effect. The analysis above given may not be very important in itself ; but it will aid in distinguishing primary from remedial rights, and the substances of rights which have not been changed from the formal incidents which have been abolished ; it will enable us to deter- mine the exact limits of the modifications made by the reform legislation. § 105. A few instances of other actions will bring this inquiry to an end. ^ It has been held in Nevada that a person claiming to be tenant in common with others of land may maintain an action for partition, whether his title be legal or equitable. ^ On the other hand, the Supreme Court of Missouri has decided that the owner of chattels by an equitable title cannot recover dam- ages for their conversion in an action analogous to trover. ^ § 106. I have thus dwelt at length upon the particular case of combining legal and equitable rights and remedies which forms the subject of the present section, because more than any other it involves and expresses the true intent and design of the new system ; it is the crucial test of the manner in which the spirit of the reform is accepted by the courts. Probably nothing con- nected with the practical administration of justice could be more startling to the lawyer of the old school than the suggestion that the owner of a purely equitable estate in lands should be able to bring an action of ejectment to recover possession of the premises ; it would be opposed to all his conceptions of law and of equity and of the uses of actions and courts. And yet these conceptions were plainly artificial and arbitrary, and the familiar rules as to the employment of actions as plainly had no foundation in the nature of things, but rested upon words alone. The final object 1 That an action brought to recover a ^ Crosier «. McLaughlin, I Nev. 348. money judgment alone may be equitable ' Walker's Adm'rs v. Walker, 25 Mo. and based upon purely equitable rights, 367. S. P. Johannesson v. BorscheniuB, see Rindge v. Baker, 57 N. Y. 209, 219. 36 Wis. 131, 134. 134 CIVIL REMEDIES. of the reformed American system was to sweep away all of these technicalities, and to allow every primary right to be maintained and every remedial right enforced in the same manner and by a single judicial instrument, untrammelled by the restrictions and limitations which made the practical administration of justice in England and in the United States seem so absurd to the cultivated jurists of Europe. That the numerical weight of authority is at present opposed to my views in relation to the particular matter in question, I fully concede. I believe, however, that in time the influence of an education in the technicalities of the common- law system will cease to be felt on the bench and among the members of the bar, and that the practical rules of procedure in all the States will be brought into a perfect harmony with the letter and the spirit of the reformatory legislation. SECTION SIXTH. THE NATURE OF CIVIL ACTIONS AND THE ESSENTIAL DIFFER- ENCES BETWEEN THEM. § 107. Notwithstanding the sweeping language of the codes and practice acts, which abolishes all distinctions between the forms of actions heretofore existing, many judges, in construing the provisions, have declared in most emphatic terms that the change is confined to the external forms alone of actions at law^ and that in their essential features certain distinctions and pe- culiar elements remain which cannot be removed by legislation. This statement is to a certain extent true, if it be confined to what is really the substance of each action,' and is not extended so as to include many incidents which, although appearing to be substantial, are really the results of arbitrary conceptions relating to the form ; for example, the old rule discussed in the preceding section, which confined the action of ejectment to the recovery of possession of lands in which the plaintiff had a legal estate. If this doctrine, however, is carefully examined, and the examples and authorities in its support are closely analyzed, it will be found that all the unchangeable features and elements which are said to inhere in different actions, and which caiihot be reduced to an identity, pertain to the primary rights sought, to be maintained ESSENTIAL DIFFERENCES BETWEEN ACTIONS. 135 by their means, to the delicts or wrongs by which these rights are invaded, to the remedial rights which thereupon accrue to the injured party, and to the remedies themselves which are the final objects of the judicial proceeding. These features and elements in actions are indeed different, and the difference between them tlie new system does not propose to abolish nor cliange. The doctrine itself is, therefore, no more than the statement in another form of the conceded fact that the reformed procedure has not affected the primary rights or the remedies which the municipal law creates and confers. § 108. As all actions are brought to maintain some primary right invaded by a wrong, and as they result in some one of the many kind of remedies prescribed by the law, and as in each action the facts from which the primary right arises, and the facts which constitute the wrong, must be stated, and as the plaintiff must demand and seek to obtain some remedy appropri- ate to the right and the delict, it foUo'ws, as a necessarj' conse- quence, that the actions, although constructed and carried on according to the one uniform principle of alleging the facts as they actually are and praying for the relief legally proper, must differ in their substance, because the rights, the delicts, and the remedies differ. This necessary feature of civil actions under the codes has been dwelt upon and explained in numerous cases, some of which are cited in the note.^ This doctrine was very 1 Goulet V. Asseler, 22 N. Y. 225, 227, could have been maintained, either against 228, per Slieldon J. ; Eldridge v. Adams, the officer or the plaintiff in the execu- 54 Barb. 417, 419, per James J. ; Hord v. tion under the circumstances here dis- Chandler, 13 B. Mon. 403 ; Hill v. Barrett, closed. If any action would have lain 14 B. Mon. 83, 85, per Marshall J. ; Payne before the code, it coald only have been V. Treadwell, 16 Cal. 220, 243, per Field an action founded on the special circum- C. J. ; Lubert v. Chauviteau, 3 Cal. 458, stances of the case, setting forth the in- 462, per Wells J.; Jones v. Steamship jury to thecontingentinlerestof the plain- Cortes, 17 Cal. 487, 497, per Cope J. ; tiff in the property, and claiming damages Sampson v. ShaeHer, 3 Cal. 196, 205, per for such injury. He states ^hat in " tres- Wells J. ; Miller v. Van Tassel, 24 Cal. pass " or " trover " a plaintiff must show 458, 463, per Rhodes J. ; Richmond, &c. that he had either the actual possession T. Co. V. Rogers, 7 Bush, 532, 535; How- or the right to the possession at the time land u. Needham, 10 Wis. 495. One of of the alleged taking or conversion, and the most elaborate of these judicial dicta in such case the value of the property is that of Mr. Justice Selden in Goulet v. was the measure of damages; while in Asseler; and, although I dissent from his the "action on the case " he must prove conclusions as a whole, I quote it in his damages, and could recover only what full as an able exposition of a certain he had actually sustained, and proceeds class of opinions. He says (p. 227) : "It (p.228):" Although the code has abolished can hardly be claimed that prior to the all distinctions between the mere forms of code an action of trespass or of trover action, and every action is now in form a 136 CIVIL REMEDIES. clearly stated in a recent case as follows : " Although all forms of action were abolished by the code, the principles by which the special action on the case, yet actions vary in their nature, and tliere are intrin- sic differences between them which no law can abolish. It is impossible to make an action for a direct aggression upon the plaintiff's rights by taking and disposing of his property, the same thing, in sub- stance or principle, as an action to recover for the consequential injury resulting from the improper interference with the property of another in which he has a contingent or prospective interest. The mere formal differences between such ac- tions are abolislied. Tlie substantial dif- ferences remain as before. The same proof is therefore required in each of these two kinds of action as before the code, and the same rule of damages ap- plies. Hence in an action in whicli tlie plaintiff establishes a rightto recover upon the ground that the defendant has wrong- fully converted property, to the possession of wliich the plaintiff was entitled at tlie time of the conversion, the proper measure of damages is still the value of the property." This rule, in respect to the measure of damages, is undoubtedly correct ; but the substantial features, which the learned judge declares remain unal- tered, are simply the primary rights of the plaintiff and the wrongs thereto done by the defendant. In the example which he gives, the difference which he points out is nothing more nor less than the differ- ence between these riglits and the delicts by which tliey are invaded. These of course cannot be changed by legislation ; but these do not constitute the action ; they are the facts upon which the action is based. The whole tenor of the quotation implies a greater resemblance between the external forms of the civil action under the code and of those in use prior to the code than actually exists. In marked contrast with this citation from Mr. Justice Selden, I quote tlie language of Field C. J. in Payne v. Tread well, 16 Cal. 220. The action was brought to re- cover possession of land. The complaint alleged " that the plaintiffs are owners in fee as tenants in common, and have the lawful right and are entitled to the pos- session " of the described premises, and " that said defendants wrongfully entered upon and are now in the wrongful pos- session of said premises, and wrongfully witlihold the possession thereof from the plaintiff." The judgment demanded was possession and damages.. The judge said (p. 243): "It is usual to speak of the action to recover possession of real property as the action of ejectment, and it is possible that with the technical desig- nation it is sometimes thought that some of the technical allegations peculiar to the old form of the action are still neces- sary. But such is not the case. There is but one form of civil action in this State, and all the forms of pleading and the rules by which their sufficiency is to be determined are prescribed by the Practice Act. Tlie system in this State requires the facts to be alleged as they exist, and repudiates all fictions. And only such facts need be alleged as are required to be proved, except to negative the possible performance of the obliga- tion which is the basis of the action, or to negative an inference from an act which is in itself indifferent. Now what facts must be proved to recover in ejectment ? These only : that the plaintiff is seised of the premises, or of some estate therein, in fee, for life or for years, and that the de- fendant was in possession at the com- mencement of the action. The seisin is the fact to be alleged. It is a pleadable and issuable fact, to be establisiied by conveyance from a paramount source of title or by evidence of prior possession. It is the ultimate fact upon which the claim to recover depends ; and it is facts of this character whicli must be alleged, and not the prior or probative facts which go to establish them." The doctrine which Mr. Justice Field thus applies to the sin- gle action is clearly applicable to all kinds of actions, legal or equitable; and it is the common principle which renders the civil action under the new system a unit in respect of external form, no matter how much diversity there may be in the pri- mary rights, delicts, and remedies. This sound principle was accurately stated by ESSENTIAL DIFFEKENCES BETWEEN ACTIONS. 137 different forms of action were governed still remain, and now, as much as formerly, control in determining the rights of the parties. In pleading, a party is now to state the facts on which he relies to sustain a recovery ; and, if issue he taken thereon, he will be entitled to just such a judgment as the facts established will by the rules of the law warrant, without regard to the name or the form of his action." ^ This judge would, however, have expressed his meaning more accurately if he had said, " The principles by which the different actions were governed still control," instead of " The principles by which the different forms of action were governed still control." The true effect of the reform was well stated by the Court of Appeals of Kentucky in the following extract : " The code makes no change in the law which deter- mines what facts constitute a cause of action, except that, by redu- cing all forms of action to the single one by petition, it changes the question whether the plaintiff's statement of his cause shows facts constituting a cause of action in " trespass," or " assumpsit," or other particular form, into the more general question whether it shows facts which constitute a cause of action at all ; that is, whether the facts stated are sufficient to show a right in the plaintiff, an injury to that right by the defendant, and consequent damage. What facts do in this sense establish a cause of action is determined by the general rules or principles of law respecting rights and wrongs, and by a long course of adjudication and practice applying these rules* to particular actions under the long- established rule of pleading, that the declaration must state the facts which constitute the plaintiff's cause of action. . . . The code does not authorize a recovery upon a statement of facts which did not constitute a cause of action in some form before the code was adopted. And therefore the former precedents and rules and adjudications may now be resorted to as authorita- tive, except so far as they relate to the distinctions between the Mr. Justice Cope in Jonea v. Steamship ler w. Van Tassel, 24 Cal. 458, 463, Ehodes Cortes, 17 Cal. 487, 497 : " We have but J. said : " The forms only of the several one form, and nothing more is required actions have been abolished ; tlie substan- than a statement of the facts relied upon tial allegations of the complaint in a for a recovery. The statute makes no given case must be the same under our distinction in matter of form between ac- Practice Act as were required at the com- tions of contract and those of tort; and mon law." relief is administered without reference ^ Eldridge v. Adams, 54 Barb. 417, 419, to the technical and artificial rules of the per James J. common law upon the subject." In Mil- 138 CIVIL REMEDIES. different forms of action, or to merely formal or technical aller gations." i To this clear and accurate exposition I can add noth- ing which will increase its efficacy as the enunciation of the general principle. The final effect produced by the reform legis- lation in abolishing all distinctions between actions may be ex- pressed in the following manner: No inquiry is now to be made whether the action is " trespass," or " trover," or " assumpsit," or any other of the ancient common-law forms, nor, §xcept for the single purpose of determining the proper tribunal for its trial, whether it is legal or equitable ; all these forms and classes are utterly abrogated. For this reason, the various rules which per- tain to each of these common-law forms of action, which distin- guished one from the other, which determined the peculiar nature and object of each, and which regulated the proceedings in each, are no longer to be invoked. It is simply an abuse of language to say that the ancient forms of action have been abolished, and that any of the rules which were based upon the existence of these forms, and had no relevancy except in connection there- with, are retained. The only question is, Would the facts stated have enabled the plaintiff to_maintain any of the common-law actions or a suit in equity ? This is, however, identical with the rule already given, that the primary rights created by the law, and the wrongs committed against them, and the remedial rights resulting from such wrongs, are unaffected by the legislation which only aims at a reform in the procedure. ^ § 109. The general doctrine thus reached may be properly illustrated by one or two examples which will serve to fix its exact meaning and application. Under the former system, the person who had the actual possession, or the immediate right to the possession, of a chattel which had been taken and carried away or destroyed by the wrong-doer, might recover his compeu- 1 Hill V. Barrett, 14 B. Mon. 83, 85, per upon the subject of pleading and prac- Marshall J. In the very recent case of tice." There is really no conflict between Richmond, &c. T. Co. v. Rogers, 7 Bush, these two modes of statement made by 532, 585, the court used the foUdwing Ian- tlie Kentucky court. The broad gener- guage : " The code makes no change in ality of the latter quotation is limited the law which determines what facte con- by the exception which the court adds, stitute a cause of action. Porms have and without which the rule as laid down , been abolished ; but the substance of the would be plainly erroneous. See Johan- coraraon-law rules of legal procedure re- nesson a. Borschenius, 35 M^is. 131, 135; mains, except where they conflict with Haughton v. Newberry, 69 N. C. 456, the spirit of our statutory regulations 450-461. ESSENTIAL DIFFERENCES BETWEEN ACTIONS. 139 satory damages in the action of " trespass." To maintain it, the possession or immediate right thereof was an essential element, and the plaintiff recovered the value of the article as the measure of his damages. If, however, the plaintiff had merely a contin- gent or prospective interest, without right of immediate posses- sion, in a chattel which was at the time the general property of another, his appropriate action for the taking, destruction, or con- version of the chattel by a wrong-doer was " case," and his dam- ages were a compensation for the pecuniary loss actually sustained. The distinctions between these two actions have been abolished ; but the distinctions between the primary rights and the wrongs which constitute the two causes of action cannot be removed. Now, as before, if the owner in possession sues for the taking or destruction of his chattel, he will recover its value as his damages, while if the holder of a contingent future interest, unaccompanied by possession, sues for the taking or destruction, he will recover the value of his interest. In the one case the plaintiff must establish his possessory right if he seeks to obtain the value of the chattel as his compensation ; in the other case the value of his contingent interest will be proved and fixed by the jury. These elements and features, however, do not belong to the action as a judicial instrument for establishing a right ; they belong to the primary and remedial rights themselves, which are unchanged by the codes. In the former system of procedure, in the works of text-writers, and in the judgments of courts, the discussion and determination of these unchangeable primary and remedial rights was always intimately connected with, and made an essential part of, the discussion and determination of the rules as to external form in the action itself, so that it was difficult, if not impossible, to distinguish them. From the very nature of the common-law system of procedure, as well as from the judicial habit of mind which it produced, the courts seldom, if ever, passed upon the existence of the primary or the remedial right in the abstract ; they decided rather whether the action was of the proper form, or the averments of the pleadings were of the proper nature, to maintain the primary right asserted, and to enforce the remedial right claimed to have arisen. The result was that, in the standard treatises and digests, primary and remedial rights were classified and arranged under the various forms of action known to the common-law procedure. These forms, with all their inci- 140 CIVIL REMEDIES. dents, have been swept away ; but there is danger lest the tech- nical rules which have been abrogated should be confounded with the principles relating to rights and remedies which remain unaffected by the reform.^ § 110. A particular feature of distinction between actions — or rather between the rights upon which actions are based — which existed under the common-law system has been preserved under the new procedure. The general classification being made of actions ex contractu and those ex delicto, there were many cases in which a party who had suffered a wrong by the conversion or the taking and carrying away of his chattels might waive the tort, and bring an action of assumpsit upon the wrong-doer's implied promise to pay the price of the articles taken. The same elec- tion still exists. Wherever the plaintiff who could sue in " tres- pass " or " trover " might, if he chose, bring " assumpsit," he may now waive the tort, and maintain an action upon an implied prom- ise and recover the price of the goods as though there had been a sale. This choice, however, does not relate to the external form of an action ; it relates to the very cause of action itself, — to the unchangeable rights which are to be protected and enforced by the judicial proceeding. In one instance, the plaintiff is permit- ted to view the transaction as an injury to his property by which he has sustained damages which amount to the entire value of that property. In the other, he views the transaction as a sale, by which the title to the property has passed to the defendant, and a duty to pay the price rests upon him. For reasons of public policy, the law allows the injured party to make his choice be- tween these two quite different versions of the same transaction ; and, although one of them may be a fictitious view, substantial justice is done thereby. It is plain, however, that this rule has no connection with the external forms of action ; it has reference only to the rights and delicts which lie back of all actions.^ § 111. In conclusion, as the distinctions between the common- 1 See Clark v. Bates, 1 Dakota 43 ; stone, 77 id. 96 ; Harrington v. Bruce, 84 Erout V. Hardin, 56 Ind. 165. id. 103 ; Sparman v. Keim, 83 id. 245, 2 As to actions ex contractu and ex 249; Lockwood v. Quackenbush, 83 id. delicto, »ee Goss m. Board of Commission- 607; Conauglity v. Nichols, 42 id. 83; ers, 4 Col. 468 ; Pierce v. Gary, 37 Wis. Sedwick v. McKim, 53 id. 807, 316 ; Ross 232 ; Front v. Hardin, 66 Ind. 165 ; Green- v. Mather, 51 id. 108 ; Matthews v. Cady, tree v. Rosenstock, 61 N. Y. 583, 588-590 ; 61 id. 561 ; Graves v. Waite, 59 id. 156 ; Fields V. Bland, 81 id. 239 ; Newdecker v. and post, §§ 554^564, 567-573. Kohlberg, 81 id. 296; Neftel v. Light- ESSENTIAL DIFFERENCES BETWEEN ACTIONS. 141 law forms of action are abolished, the practice since the codes, sometimes indulged in even by courts in their solemn judgments, of retaining the ancient nomenclature, and of describing a given cause as " trespass," " trover," " assumpsit," and the like, is pro- ductive of confusion, and of confusion alone. No practical rules or doctrines in the administration of justice according to the re- formed system of procedure result from these old forms ; no practical aid in the decision of a cause is to be obtained from re- garding it as " trespass," or " trover," or " assumpsit," or from the giving it any other name ; no difficulties are removed nor doubts cleared up by a resort to tliis method of description. On the other hand, there is a constant tendency to associate with these names the rules aud doctrines which were once inseparable from them, but which have been in the most positive manner abrogated by the legislature ; in fact, much of the doubt and confusion which even yet accompany the administration of justice in those States which have adopted the reformed system of proce- dure, is due to a retention of these names by the bench and the bar ; and I believe that the reform itself will never produce its full results in simplicity and scientific accuracy until the ancient nomenclature is utterly forgotten or banished from the courts. The two systems of procedure are so entirely different, they are based upon notions so absolutely unlike, that any intermingling of their elements is impossible ; the one which has been intro- duced by the legislative will must be left to be developed ac- cording to its own distinctive principles, without any interference from that which has been abandoned and discarded. 142 CIVIIi REMEDIES. CHAPTER SECOND. THE PARTIES TO THE CIYIL ACTION. SECTION FIRST. THE STATUTORY PROVISIONS AND THEIR GENERAL PRINCIPLES. § 112. The second of the distinctive features which belong to and characterize the single civil action of the American system consists of the principles and rules adopted in respect of the parties thereto. Under the old procedure the rules which gov- erned the parties to actions at law, and those which regulated the parties to suits in equity, stood in marked contrast with each other ; in fact, the fundamental conception of these two judicial instruments was radically unlike. It will be sufficient to men- tion one of these essential differences. In an action at law the plaintiff must be a person in whom is vested the whole legal right or title ; and, if there were more than one, they must all be equally entitled to the recovery. So far as the mere recovery is concerned, the right must dwell in them all as a unit, and the judgment must be in their favor equally. The defendants, on the other hand, must be equally subject to the common liability, so that, even if it were possible for the jury to find a separate verdict against each, the same and single judgment must be rendered against them all in a body. In other words, whatever might be the nature of the antecedent right or liability, whatever antecedent power there might be of electing to sue by one or all and against one or all, after the election is made to sue by or against all, the recovery is necessarily joint, and the burden of the remedy is necessarily joint. The suit in equity was ham- pered by no such arbitrary requirements. Two general and natural principles controlled its form : first, that it should be prosecuted by the party really in interest, although with him might be joined all others who had an interest in the subject- matter and in obtaining the relief demanded ; and, secondly, that all persons whose presence is necessary to a complete deter- STATUTOKT PROVISIONS IN EELATION TO PARTIES. 143 mination and settlement of the questions involved shall be made parties, so that in one decree their various rights, claims, interests, and liabilities, however varying in importance and extent, maybe determined and adjudicated upon by the court. As the methods adopted by the chancellor did not require him to pronounce a judgment in favor of all the plaintiffs, nor indeed in favor of plaintiffs alone, and against all the defendants, nor indeed against defendants alone, it was not a matter of vital importance whether a particular person who was made a party should be a plaintiff or a defendant. It was possible to give relief to defendants as against each other or against plaintiffs. It must not be under- stood that no order or method was observed in the disposition of parties ; but, without discussing the various rules in detail, it is sufficient for my present purpose to point out this fundamental difference in conception between legal and equitable actions. The intention plainly shown in the various State codes of procedure is to adopt the general equity theory of parties, rather than the legal theory, and to apply it to the single civil action in all cases, whatever be the nature of the primary right to be protected or of the remedy to be obtained. How far this intention has been expressed, how completely it has been carried out in the legisla- tion of the several States, will be seen from the provisions them- selves to be immediately quoted. After making these extracts and grouping them properly, I shall very briefly point out their general similarity and their special divergencies from the common type, and shall then proceed in the succeeding sections of the present chapter with a careful discussion of each separate provi- sion. It will be seen that there is an almost complete identity in many of these statutory rules as they are expressed in the va- rious codes, although in some of them the equitable theory has been more fully carried out into detail. § 113. Statutory Provisions. " Everj' action must be prosecuted in tlie name of the real party in interest except as otherwise pro- vided in [this chapter, this article, or some designated section] ; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract." ^ The same ap- pears slightly varied in a few States, as follows : " Every action 1 Indiana, § 8 ; Kansas, § 26 ; Minne- §§ 27, 379 ; Nevada, § 4 j Kentucky, § 30 ; sota, § 26 ; Missouri, art. 1, § 2 ; Wiscon- Washington, § 3 j Montana, § 4, sin, ch. 122, § 12; Tlorida, § 62; Oregon, 144 CIVIL REMEDIES. must be prosecuted in the name of the real party in interest, ex- cept as is otherwise provided in [this title or article]." ^ In some codes the form is that first given above, but to it is added the following clause : " But an action may be maintained by the grantee of land in the name of the grantor, or his or her heirs or legal representatives, when the grant or grants are void by reason of the actual possession of a person claiming under a title adverse to that of the grantor at the time of the delivery of the grant, and the plaintiff shall be allowed to prove the facts to bring the case within this provision." ^ In Nebraska the following provi- sion is added : " The assignee of a thing in action may maintain an action thereon in his own name and behalf without the name of the assignor."^ § 114. " In the case of an assignment of a tiling in action, the action of the. assignee shall be without prejudice to any set-off or other defence [now allowed, Ohio, Kansas, Nebraska'], existing at the time of or before notice of the assignment ; but this section shall not apply to [negotiable bonds, Ohio, Kansas, Nebraska'] nego- tiable promissory notes or bills of exchange transferred in good faith and upon good . consideration before due."* "When the action is brought by the assignee of a claim arising out of con- tract not assigned by indorsement in writing, the assignor shall be made a defendant to answer as to the assignment or his in- terest in the subject of the action ; " and this is followed by the provision in reference to set-off or other defences contained in the last citation.^ § 115. " An executor, an administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue with- out joining with him the person 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." ^ 1 Ohio, § 25 ;Cal.§ 367; Iowa, §2543; Florida, § 63; Kentucky, § 31; South Neb. § 28 ; Wyoming, § 31 ; Idaho, § 4. Carolina, § 136 ; Oregon, §§ 28, 382; Ne- 2 New York, § 111 (1501, 449, lfl09, vada, § 5; Dacota, § 65;' Iowa, § 2546, 1910) ; Dacota, § 64 ; California, § 367 ; somewhat different in form from the text ; South Carolina, § 134 ; N. C. § 55. N. C. § 55 ; Wash. § 3 ; Idaho, § 5 ; Wy- 3 Nebraska, § 28 ; Wyoming, § 32. ominfe § 33 ; Mont. § 5. i New York, § 112 (502, 1909, 1910) ; 6 Indiana, § 6. Ohio, § 26; Kansas, § 27; Minnesota, « New York, § 113 (449) ; Indiana,§4; § 27 ; California, § 368 ; Wisconsin, ch. 122, Minnesota, § 28 ; California, § 369 ; Mis- § 13 ; Indiana, § 6 ; Nebraska, § 29 ; souri, art. 1, § 3 ; Wisconsin, ch. 122, STATUTORY PROVISIONS IN RELATION TO PARTIES. 145 The same as slightly varied : " An executor, administrator, trus- tee 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 without joining with him the person for whose benefit it is prosecuted. Officers may sue and be sued in such name as is authorized by law, and official bonds may be sued upon in the same way." ' § 116. " 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." ^ "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 settlement of the questions involved therein." ^ In a few codes the same provision appears, but added to it is the following clause: "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." * § 117. " Of the parties to the action those 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 can- not be obtained, he may be made a defendant, the reason thereof being stated in the complaint [or petition] . " [And] when the question is one of a common or general in- terest of many persons, 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." ^ § 14 ; Florida, § 64 ; South Carolina, § 136 ; " Ohio, § 35; Indiana, § 18; Kansas, Oregon, § 29 ; Nevada, § 6 ; Dacola, § 66 ; § 36 ; Missouri, art. 1, § 5 ; Wisconsin, ch. North Carolina, § 57 ; Washington, § 4 ; 122, § 19 ; Iowa, § 2547 ; Nebraska, § .38 ; Idaho, § 6 ; Wyoming, § 34; iVIontana, § 6. Florida, § 69 ; Kentucky, § 85 ; Nevada, 1 Ohio, § 27 ; Kansas, § 28 ; Iowa, § 13 ; Oregon, § 380, limited to equitable § 2544; Nebraska, § 30; Kentucky, § 83. actions; Dacota, § 71 ; Washington, § 8. 2 New York, § 117 (446) ; Ohio, § 34; * New York, § 118 (447, 1503, 1598) ; Indiana, § 17 ; Kansas, § 35; California, California, §§ 879, 380; South Carolina, §§ 378, 881 ; Missouri, art. 1, § 4 ; Wis- § 141 ; N. C. § 61 ; Ida. § 13 ; Wy o. § 41 ; consin, ch. 122, § 18; Iowa, § 2545; Ne- Mont. § 13. braska, § 37 ; Florida, § 68 ; Kentucky, ^ This provision is thus given in one § 34; South Carolina, § 140; Oregon, section in New York, § 119 (448); In- § 880, but limited to equitable actions; diana, § 19; California, § 382; Wisconsin, Nevada, § 12 ; Dacota, § 70 ; N, C. § 60 ; ch. 122, § 20 : Florida, § 70 ; S. C. § 142 ; Idaho, § 12 ; Wyoming, § 40 ; Montana, N. C. § 62 ; Ida. § 14 ; Wyo. § 42 ; Mont. § 12 ; Washington, § 8. § 14 ; Dacota, § 72 ; Oregon, § 381, limited 10 146 CIVIL REMEDIES. § 118. " Persons severally [and immediately] liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes [and indorsers and guarantors, Kansas], may all or any of them be included in the same action at the option of the plaintiff." ^ The corresponding provision in some of the States is much more full, and more explicitly alters the common-law rules in respect to joint debtors. " Persons severally liable on the same contract, including the parties to bills of exchange and promissory notes, common orders and checks, and sureties on the same or separate instruments, may all or any of them, or the representatives of such as may have died, be sued in the same action at the plaintiff's option." ^ " Every person who shall have a cause of action against several parties, including parties to bills of exchange and promissory notes, and be entitled by law to a satisfaction therefor, may bring suit thereon jointly against all, or as many of the persons liable as he may think proper ; and an executor or administrator, or other person liable in a representative character, may be joined with others originally liable, at the option of such person." ^ " When two or more persons are [jointly, Kentucky'] bound by contract [or by judgment, decree, or statute, whether jointly only, or jointly and severally, or severally, and including the parties to negotiable paper, common orders or checks, and sureties on the same or separate instruments, or by any liability growing out of the same, Iowa] the action thereon may at the plaintiff's option be brought against all or any of them. When any of those [the persons, Kentuclcy] so bound are dead, the action may be brought to equitable actions ; Nevada, § 14, add- In Missouri, the first paragraph only is ing, however, to the section as given in enacted, and is art. 1, § 6. the text the following clause : " Tenants i New York, § 120 (454) ; Kansas, In common, joint tenants, and copartners, § 39 ; Minnesota, § 35, " and sureties on the or any number less than all, may jointly same instrument ; " Wisconsin, ch. 122, or severally bring, or defend, or continue § 21 ; Nebraska, § 41 ; Florida, § 71 ; Ohio, the prosecution or defence of any action § 38 ; Indiana, § 20 ; California, § 383, add- for the enforcement of the rights of such ing, " and sureties on the same or separate person or persons." The same provision Instrument," after the words " promis- is found in the California code, § 384, ex- sory notes ; " S. C. § 143 ; N. C. § 63 ; Ore- cept that " coparceners " is substituted in gon, §§ 36, 382 ; Nevada, § 15, Ida. § 15, place of " copartners." In the following Wyo. § 43, and Mont. § 15, with same States it Is separated into two sections addition as in California ; Dacota, § 73 ; corresponding to the two paragraphs of Wash. § 10. the text : Ohio, §§ 36, 37 ; Kansas, §§ 37, = Kentucky, § 38. 38 ; Iowa, §§ 2548, 2549 ; Nebraska, §§ 39, s Missouri, art. 1, § 7. 40 ; Kentucky, §§ 36, 37 ; Wash. §§ 8, 9. STATUTORY PROVISIONS IN RELATION TO PARTIES. 147 against any or all of the survivors, with any or all of the repre- sentatives of the deceased [with the representatives of any or all of the decedents, KentucJcyl, or against any or all of such repres- entatives [or against the latter of any of them, Kentucky'] [when all the persons so bound are dead, the action may be brought against the representatives of all or of any of them, Kentuclcy]. An action or judgment against any one or more of several persons jointly bound shall not be a bar to the proceedings against the others."! § 119. " (1) The court may determine any controversy be- tween the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights ; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in. " (2) [And] When, in an action for the recovery of real or personal property, a person not a party to the action, but having an interest in the subject thereof, makes application to the court to be made a party, it may order him to be brought in by the proper amendment. " (3) A defendant against whom an action is pending upon a contract, or for specific real or personal property, may at any time before answer upon affidavit that a person not a party to the action, and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such person and the adverse party, apply to the court for an order to substitute such person in his place and discharge him from lia- bility to either party, on his depositing in court the amount of the debt, or delivering the property or its value to such person as the court may direct, and the court may in its discretion make the order." ^ 1 Kentucky, § 39; Iowa, § 2550. In of those who are so liable. See Gen. Kansas all joint contracts are declared to Statutes (1868), ch. 21, §§ 1-4. The be joint and several ; on the death of one same provisions are found in the statutes or more of the joint promisors or obligors, of Missouri, Wagner's Stat., vol. i. p. 269, the right of action exists against the rep- §§ 1-4. resentatives of the deceased and against 2 jj, t[,e following States these pro- the survivors ; when all die the right of visions form a single section, as in the action exists against the representatives text: New York, § 122 (452, 820); Wis- of all the deceased debtors ; in all cases of consin, ch. 122, §§ 22, 23 ; Florida, § 73 ; joint obligations or joint "assumptions" South Carolina, § 145; N. C. § 65; Ne- of partners or others, the action may vada, § 17 ; Idaho, § 17 ; Dacota, § 75. In be prosecuted against any one or more these others tliey are separated into three 148 CIVIL EEMEDIES. § 120. The following special provisions, found in several of the States, are quoted, not because they are necessarily involved in the general theory of the reformed system, but because they will serve to explain a number of cases which will be cited hereafter, and because they show the tendency of the modern legislation away from the arbitrary notions of the common law in respect of parties. " A father, or, in case of his death or desertion of his family [or imprisonment, Indiana], the mother, may prosecute as plaintiff for the seduction of the daughter, and the guardian for the seduction of the ward, though the daughter or ward is not living with or in the service of the plaintiff at the time of the seduction or afterwards, and there is no loss of service."^ " When a husband has deserted his family [or is imprisoned, Indiana'], the wife may prosecute or defend in his name any action that he might have prosecuted or defended, and shall have the same powers and rights therein as he might have had."^ "A father, or, in case of his death or desertion of his family [or imprisonment, Indiana], the mother, may maintain an action for the injury [or death, Indiana, Oregon, California] of the child [an action for the expenses and actual loss of service resulting from the injury or death of a minor child, Iowa], and the guardian for the injury [or death, Indiana, Oregon, California] of the ward."^ " An un- married female may prosecute as plaintiff an action for her own seduction, and recover such damages as may be found in her favor." * § 121. In several of the States a partnership may sue or be sued by its firm-name alone, the judgment, being enforceable against the property of the firm and of such members as are per- sonally served, provision being made for extending its effect to sections, corresponding to tlie three sub- California codes in relation to " interven- divisions of the text ; Ohio, §§ 40, 41, 42 ; ing," which are very special and unlike Kansas, §§ 41, 42, 43 ; Nebraska, §§ 43, that in the text, are quoted in a subse- 44, 45. In others still they form two quent section of this chapter, sections, embracing respectively the first i Minnesota, § 32 ; California, § 376 ; and second subdivisions and the third : Oregon, § 34 ; Indiana, § 25. Indiana, §§ 22, 23 ; Kentucky, §§ 40, 41. 2 Minnesota, § 34 ; Indiana, § 26 ; In California, §§ 389, 386, correspond to Iowa, § 2564. the first and third sudivisions of the text. * Minnesota, § 33 ; California, § 376 ; In the others there is but one section Iowa, § 2556. But the last clause, as to identical with the first subdivision of the the guardian and ward, is not found in the text : Oregon, §§ 40, 382 ; Mis. art. 8, § 4 ; Iowa code ; Oregon, § 33 ; Indiana, § 27. Iowa, § 2551 ; see Minnesota, §§ 38-41 ; * Iowa, § 2555 ; California, § 374 ; Ore- Wash. §§ 12-14 ; Wyo. §§ 45-47 ; Mont, gon, § 35 ; Indiana, § 24. §§ 17-22. The provisions of the Iowa and STATUTORY PROVISIONS IN RELATION TO PARTIES. 149 the other members by some subsequent proceeding. The follow- ing is the type of these provisions, and they are all substantially the same : " An action may be brought by or against a partner- ship, as such, or against all or either of the individual members thereof ; and a judgment against the firm, as such, may be en- forced against the partnership property, or that of such members as have appeared or been served vi^ith notice. And a new action may be brought against the other members on the original cause of action." 1 Certain other special provisions in relation to parties will be quoted in subsequent sections, and especially the legisla- tion of the various States concerning suits by and against mar- ried women. This legislation in several instances does not form a part of the codes of procedure, but is contained in separate statutes having particular reference to the status of marriage. § 122. The foregoing are all the provisions relative to parties in general. It is plain, upon the most cursory reading, that the language of these sections is so comprehensive, and without ex- ception or limitation, that it appears to include all actions, legal and equitable, and to apply the equitable doctrines alike to both classes. It should.be observed, however, in this connection, that in a vast number of actions strictly legal the equitable theory of parties, as stated in these clauses, would determine the proper parties thereto in exactly the same manner as the common-law theory, and there could arise, then, no conflict. The possible conflict which could arise in other cases would result either (1) from the old notion that in a common-law action all the plain- tiffs must be equally interested in the recovery, and all the defendants equally liable to the judgment, so that no person could be a plaintiff who did not allege for himself this community of interest, or be made a defendant against whom this community of liability was not charged, or (2) from the common-law doctrine of joint, joint and several, or several rights and liabilities which control to a very great extent the rules as to parties in legal actions. One school of judges, applying to this particular topic the theory of interpretation described in the preceding chapter, have been unable to concede that the general statutory provi- sions quoted above did repeal and abrogate these long and firmly established rules and doctrines of the common law, and have J Iowa, § 2553; Minnesota, § 37; California, § 388; Ohio, § 629; Nebraska, §§ 24, 27. 150 CIVIL EEMEDIES. therefore wished to confine their operation and effect to equitable actions.! Another school of judges, regarding the codes as highly remedial statutes, have been inclined to follow out their spirit, and to give their language the fullest meaning of which it is capable, even to the extent of holding that its general expressions abohshed and swept away the legal distinctions between joint, joint and several, and several rights and liabilities. The influ- ence and effect of these different systems of interpretation will be shown in the succeeding sections of this chapter. § 123. In a few of the States the legislation has left no room for any such conflict of opinion, and has pushed the equitable theory to its final results by express enactments which leave noth- ing to implication. The codes of these States provide for bringing in parties to certain legal actions under some circumstances merely because they have an interest in the event of the suit, although they have no share in the relief, and bear no part of the liability ; and they utterly abrogate the common-law rules relative to joint, joint and several, or several liabilities. In these States, there- fore, there can be no doubt as to the construction which should be put upon the general statutory provisions quoted ; and they are treated as establishing the equity doctrine and appl3'ing it to actions of all kinds. In the succeeding sections of this chapter I shall pursue the order of the legislation which is the same in all the States, and shall separately discuss the following subjects: The Real Party in Interest to be made Plaintiff; The Assigna- bility of Things in Action ; The Effect of an Assignment of a Thing in Action upon the Defences to it ; A Trustee of an Ex- press Trust, &c., to sue alone ; Who may be joined as Plaintiffs ; Who may be joined as Defendants ; When One or More may sue or be sued for All ; Parties severally liable on the same Instru- ment; Bringing in New Parties ; Intervening; and. Interpleader. It is proper to remember that the doctrine as to Parties cannot be exhaustively discussed until the chapter is reached which treats of Judgments. The subject of rights and liabilities, joint, joint and several, or several, which is embraced under the head of Judgments, is so intimately involved with the subject of Par- ties that the two cannot be completely separated. 1 As an illustration of these views, see the opinion of S. L. Selden J. in Voorhis u. Child's Ex'rs, 17 N. Y. 354. THE REAL PAETY IN INTEREST TO BE THE PLAINTIFF. 151 SECTION SECOND. THE EEAL PARTY IN INTEREST TO BE MADE PLAINTIFF. § 124. " Every action must be prosecuted in the name of the real party in interest, except when otherwise provided in this title [or chapter, or article]," is the sensible and comprehensive form used in Ohio, California, Iowa, Nebraska, Wyoming, and Idaho. To this is added : " But this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract," in New York, Indiana, Kansas, Missouri, Wisconsin, Florida, South Carolina, Kentucky, Oregon, Nevada, Dakota, North Carolina, Washington, and Montana. It was sometimes said that at the common law a thiug in action, not negotiable, could not be assigned ; but the true meaning of the rule was merely this, that the assignee could not bring an action upon it in his own name. Courts of law had long recognized the essential validity of such assignment in a large class of cases, by permitting the assignee, who sued in the name of his assignor, to have entire control of the action, and by treating him as the only person im- mediately interested in the recovery. Indeed, the assignment gave to the assignee every element and right of property in the demand transferred, except the single one of suing upon it in his own name ; it was regarded as assets in his hands and in those of his personal representatives ; his rights were completely protected against the interference of the assignor with an action brought in the latter's name. It is true, the property derived from the as- signment was said to be equitable, and not legal ; but this distinc- tion did not lessen the intrinsic, essential nature of the ownership. It would seem that the property of the assignee is now strictly legal, although the question does not require any solution in this work. § 125. One effect — and perhaps the principal effect of this statutory provision — is, that all assignees of things in action which are assignable may sue upon them in their own names, and are no longer obliged to sue in the names of the original as- signors. ^ It is not strictly correct to say that the provision itself 1 This provision only applies to " ao- special proceedings. The proceeding to tions " as defined in the code, and not to enforce a mechanic's lien, in pursuance of 152 CIVIL EEMEDIES. renders any thing in action assignable, that it creates any attri- bute of assignability ; but, for the purpose of defeating such pos- sible interpretation, the second clause was added in many of the codes. This limiting clause, however, is only negative in its form and meaning. It merely forbids a certain construction to be placed upon the preceding language. It does not say that no thing in action is assignable unless it arises out of contract. The rules governing this quality of things in action are found in other provisions of the law, and not in this section. It will be seen in the sequel that a large class of things in action not arising out of contract, but which arise out of torts to property, may be assigned, and that the assignee may, therefore, bring an action upon them in his own name. It is plain, however, that a full discussion of this section requires an exhaustive examination of the question, What things in action may be assigned ? And this examination will be made in the next succeeding section of the present chapter. § 126. The immediate and in some respects the most im- portant consequence of the rule that " every action must be prosecuted in the name of the real party in interest," is this : wherever a thing in action is assignable, the assignee thereof must sue upon it in his own name. I shall therefore, in the first place, discuss this result, and ascertain the extent to which it has been carried, and the cases to which it has been applied. It is abun- dantly settled that when a thing in action, transferable bj'- the law, is absolutely assigned, so that the entire ownership passes to the assignee without condition or reservation, and the legal title is fully vested in him, he is the real party in interest, and may sue upon it in his own name, and is, in fact, the only proper party to bring the action, — as in the case of a claim for the use and occu- pation of land thus assigned ; ^ a partnership dems^nd transferred certain special statutes in New Torli, is Hun, 128 ; Jackson v. Daggett, 24 Hun, not an action ; and the original liolder of 204 ; Browning v. Marvin, 22 Hun, 547 ; the lien who had assigned it is the proper Archibald v. Mut. Life Ins. Co., 38 Wis. party to institute the proceeding for the 542 ; Carpenter v. Tatro, 36 Id. 297 ; Har- benefit of his assignee. Hallahan v. Her- din v. Hilton, 50 Ind. 319 ; State v. John- bert, 57 N. Y. 409. As to actions by the son, 52 Ind. 197 ; Mitchell v. Dickson, 53 assignee, see Devlin v. The Mayor, &c., Ind. 1 10 ; Shane v. Francis, 30 Ind. 92 ; 63 N. Y. 8, 14-20 ; Sheridan ... The Gallagher v. Nichols, 60 N. Y. 438, 448. Mayor, &.C., 68 Id. 30 ; Fitch v. Eathbun, i Mills u. Murry, 1 Neb. 327, and a 61 Id. 579 ; Morris v. Tuthill, 72 Id. 575 ; claim of damages for waste against a ten- Merchants' Bank o. Union, &c. Co., 69 Id. ant or subtenant in favor of the rever- 373, 380 ; Green v. Niagara Ins. Co., 6 sioner, and by him assigned to the plain- THE EEAL PAETY IN INTEEEST TO BE THE PLAINTIFF. 153 by the other partners to one member of the firm ; ^ a delivery- bond taken by a constable for the delivering up of property which he had seized on execution and transferred to the plaintiff in the action ; ^ the right of action to recover damages for a breach of a covenant of seisin in a deed of conveyance assigned by the gran- tee ; ^ a claim for borrowed money.* It was held in Missouri that the assignee of a thing in action arising out of contract must sue in his own name, although there was no specific statutory provi- sion in that State permitting such a demand to be assigned, and the statutory provision to that effect formerly existing had been omitted from the revision of the laws then in force. The clause of the Practice Act [the Code] was enough to authorize the action because he was the real party in interest. ^ § 127. Not only does the rule prevail when the assignment is absolute and complete, and the assignee is the legal owner of the demand; it prevails with equal force in cases where the assign- ment is simply equitable in its character, and the assignee's title would not have been recognized in any form by a court of law under the old system, but would have been purely equitable. Such assignee, being the real part};- in interest, must bring an action in his own name ; for, in respect to this provision of the statute, the equity doctrine which it embodies is, beyond a ques- tion, to be applied to all actions. ^ As illustrations : the person to tiff. Rutherford v. Aiken, 3 N. Y. Sup. party liolding the legal title of a note or Ct. 60. instrument may sue upon it, though lie be 1 Canefox v. Anderson, 22 Mo. 347. an agent or trustee, and be liable to ac- A non-negotiable note payable in work, count to another for the proceeds of the Schnier v. Fay, 12 Kans. 184 ; Williams recovery ; but he is open in such case to u. Norton, 3 Kans. 295. any defence which exists against the 2 Waterman u. Frank, 21 Mo. 108 ; party beneficially interested. Or the and see Moorman v. Collier, 32 Iowa, party beneficially interested, though he 138. Where a bond is taken in an action may not have the legal title, may sue in by an ofScer for the security of any par- his own name. This may not precisely ticular person, that person is the real accord with the line of decisions under party in interest. other codes, but we think it liberal and 3 Van Doren v. Relfe, 20 Mo. 455 ; Ut- right, and conducive to the practical al- ley r. Foy, 70 N. C. 303 (a land contract), tainment of justice." In Lytle v. Lytic, * Smith V. Schibel,19 Mo. 140; Knad- Duval J. said (p. 128): "Upon the face ler V. Sharp, 36 Iowa, 232, 235 (an open of the petition in this case, it is perfectly account). clear that the plaintiff was not the owner 6 Long V. Heinrich, 46 Mo. 603. of the ' debt for which the action is 6 See Cottle v. Cole, 20 Iowa, 481, 485 ; brought; but that Harmon [the assignee] Lytle V. Lytle, 2 Mete. (Ky.) 127. In the is the equitable owner of it, and he is first of these cases Mr. Justice Dillon therefore the real party in interest ; and said: "The course of decision in this under the plain rule of practice (§ 80) State establishes this rule ; viz., that the the action should have been brought in 154 CrVIL EEMEDIES. whom an order is given by a creditor upon his debtor for the whole amount of the demand, although the debtor has not ac- cepted nor promised to pay, as an equitable assignee, and must sue in his own name ; ^ also, where a creditor assigns part of his claim to the plaintiff, of which the debtor has notice ; ^ and when a bond was verbally assigned, and was delivered by the obligee to the plaintiff; 3 and when the assignment, though absolute on his name as plaintiff. It is true that, ac- cording to § 31, the assignor, Mrs. Lytle, was a necessary party as plaintiff or de- feudant, as the assignment was not authorized by statute, and did not in- vest the assignee with the legal title to the debt assigned." This last reraarli refers to a clause of the Kentucky code requiring the assignor to be made a party plaintiff or defendant, wlien the demand is not negotiable, or the assignment is not expressly authorized by some statute, so as to answer to the assignment and his own interest in the subject-matter. 1 Wheatley v. Strobe, 12 Cal. 92, 98 ; Walker v. Mauro, 18 Mo. 564. Upon facts as stated in tlie text. Gamble J. says in the last case : " The effect of our new code of practice, in abolishing the distinc- tions between law and equity, is to allow the assignee of a chose in action to bring a suit in his own name in cases where, by the common law, no assignment would be recognized. In this respect, the rules of equity are to prevail, and the assignee may sue in his own name." He goes on to show that this is an equitable though not a legal assignment. 2 Grain v. Aldrich, 38 Cal. 514. The defendant being indebted to Brooks &Co. in the sura of $159,000, the latter assigned $44,000 of the claim to the plaintiff, who brings this action. The defendants had notice of the assignment. Sanderson J. speaking for the court, says, that under the common-law practice an assignment of a part of an entire demand was void at law, unless made with the consent or ratification of the debtor; but, "under the system of practice which prevails in this State, such results do not follow." After observations upon the union of le- gal and equitable methods, he goes on to show that in equity the assignee of part of a demand could maintain an action if he made the assignor a party. Had Brooks & Co. been made plaintiffs, and a prayer added for an account and apportionment of the debt, the strict requirements of the old equity practice would have been met ; but the code reaches the same result in a shorter and simpler manner. See Shaver V. West. Un. Tel. Co., 57 N. Y. 459, 464. A clerk in the employ of the company, with the knowledge and assent of its pres- ident, gave the plaintiff for value the fol- lowing written order : " Treas. of the West. U. T. Co. Please pay D. L. N. $50 monthly, commencing at, &c. until 1300 is paid, and charge same to my salary account." He was all the time working at a monthly salary exceeding $50. This order was presented to the treasurer and filed with hira ; before any payment it was countermanded by the drawer. The holder, suing the company claiming to be an assignee of the clerk's claim, the Commission of Appeals held that the order was not an equitable as- signment, because it did not direct the payment " to be made out of any desig- nated fund or particular source." Dwight J. dissented. 5 Conyngham v. Smith, 16 Iowa, 471, 475, per Wright C. J. " In other words, the equitable rule as to parties is now applied to law actions, if the relief asked may be given in that court. And there- fore, if the plaintiff is the real owner of the bond, if it had been actually sold and transferred to him by a valid verbal con- tract, there is no reason why, under our present system of pleading and practice, he may not maintain the action in the manner and form as stated in his peti- tion." Barthol v. Blakin, 34 Iowa, 452, and Moore v. Lowry, 25 Iowa, 336. Same decision in case of mortgages verbally assigned. S. P. Green v. Marble, 37 Iowa, 95 ; Andrews v. McDaniel, 68 N. C. 385 (an unindorsed note). THE REAL PARTY IN INTEREST TO BE THE PLAINTIFF. 155 the face, -was, in fact, partial, the assignee agreeing to account for the remaining portion to the assignor. In this case the as- signor might be brought in to protect his own interests, and, in some States, would be an indispensable party. ^ The rule de- duced from these authorities is plain and imperative : The assignee need not be the legal owner of the thing in action ; if the legal owner, he must of course bring the action ; but, if the assignee's right or ownership is for any reason or in any manner equitable, he is still the proper plaintiff, in most of the States the only plaintiff, although, in a few, the assignor should he joined as a plaintiff or as a defendant. The plain intent of the statute is to extend the equity doctrine and rule to all cases. ^ § 128. As the statutory provision declares that " every action must be prosecuted in the name of the real party in interest," the defence that the plaintiff is not such real party in interest is, in general, a bar to the suit. This is certainly so when the plaintiff is the assignee of any thing in action not negotiable, and the issue raised by an answer setting up such defence would be simply whether the plaintiff was, upon the proof, the real party in inter- est. If, however, the thing in action is an instrument negotiable in its nature, the subject is complicated by the special doctrines and rules of the law which relate to the quality of negotiability. It is elementary that possession of negotiable paper, payable to bearer, is at least prima facie evidence of ownership ; and it is 1 Gradwohl v. Harris, 29 Cal. 150. gin v. Ireland, 14 N. Y. 322 ; Williams v. The action was brought by plaintiff as Brown, 2 Keyes, 486 ; Paddon v. Wil- assignee of W. & B. of a contract for the liams, 1 Robt. 340 ; Meeker v. Claghorn, payment of money. W. & B. intervened, 44 N. Y. 349, 353 ; Wetmore v. San Fran- alleging that, though the assignment was cisco, 44 Cal. 294, 300; Lapping i;. DufEy, absolute on its face, it was actually for 47 Ind. 56; Boyle v. Bobbins, 71 N. C. one-fourth only of the demand, and they 130. (W. & B.) were entitled to three-fourths ^ McDonald .;. Kneeland, 5 Minn. 352, of the recovery. The court held that the 365, per Atwater J. "The code has action was properly brought, but also that wisely dispensed with the absurdity of the intervention was proper, and gave a requiring the assignee to use the name of judgment that the plaintiff recover one- tlie assignor in bringing suits, but it does fourth and "W. & B. three-fourths of the not therefore follow that the legal estate in demand.< Such an intervention and judg- the thing assigned passes to the assignee ; ment would doubtless shock a lawyer on the contrary, the only object of this bred in the old school; but it is conveni- provision of the code seems to have been ent, sensible, and every way worthy of to assimilate the practice in courts of law universal adoption. The common-law ob- to that which always prevails in courts of jection that a divided judgment is im- equity, in permitting the real party in m- possible is simply absurd ; the thing is terest to sue in his own name. The inter- rfone, and is therefore possible. See also est or right acquired under this assign- Alien V. Brown, 44 N. Y. 228, 231 ; Dur- ment is an equitable one." 156 CrVlL REMEDIES. also settled that when such paper, payable to order, is indorsed and delivered to the indorsee, the legal title passes to him, and he may maintain an action thereon ; while the maker, acceptor, or indorsers cannot question his title, at least in any manner short of impeaching its good faith. This legal title carried with it the right to sue, no matter what arrangements might be made between him and his immediate indorser concerning the use of the proceeds. The question then arises. Has the rule introduced by the code changed these established doctrines? Does the apparent and formal legal ownership resulting from the possession of a negoti- able instrument payable to bearer, or from the indorsement and possession of similar paper payable to order, constitute the plain- tiff the real party in interest within the meaning of the code ? Or may the defendant go behind this formal title, and show that some other person is the real party in interest, and thus defeat the action ? If the latter query must be answered affirmatively, it is evident that the statutory provision under consideration has made an important change in the law of negotiable paper. The question thus proposed has given rise to some conflict in opinion, and is not entirely free from doubt. On the one side it has been urged that the language of the section in all the State codes is most general and comprehensive, containing no exception in terms nor by implication, and that it is, in its highest degree imperative, "must be prosecuted in the name of the real party in interest," except in the single case of " the trustee of an express trust," and that the real party in interest is the person for whose imme- diate benefit the action is prosecuted, who controls the recovery, and not the person in whom the mere naked apparent legal title is vested. On the other side it is urged that the rule permitting such a holder or indorsee to prosecute the action is one of the elementary doctrines of the law relating to negotiable paper, — a rule not of practice or procedure, but of the mercantile and commercial law, — and that the legislature cannot have intended, by such a general clause of a statute concerning procedure, to ab- rogate well-settled principles of the law merchant. I will exam- ine and compare some of the cases in which the question has been discussed. § 129. In Edwards v. Campbell,^ which was an action upon a note payable to bearer, the plaintiff had the note in his possession ; 1 Ed-wards v. Campbell, 23 Barb. 423. THE EEAL PAKTY IN INTEREST TO BE THE PLAINTIFF. 157 but a judgment in his favor was reversed on the ground that he was not the real party in interest. Killmoret'. Culver^ was an action upon a promissory note payable to Tanner or bearer. The answer denied the plaintiff's ownership, and alleged that Tanner was the real owner. It was sufficiently established by the evi- dence that the plaintiff was acting simply as agent for Tanner, and would be immediately accountable to the latter for all the money recovered. These facts were held to constitute a complete defence on the ground that Tanner was the real party in interest, and should have been the plaintiff. In James v. Chalmers,^ it was said by one of the judges of the New York Court of Appeals, in reference to actions upon negotiable paper : " Under the code of procedure, if it appears that the plaintiff is not the real party in interest, it is a bar to the action, and no further defence is necessary." The question was very elaborately discussed by the courts of New York in Eaton v. Alger,^ which was an action by 1 Killmore v. Culver, 24 Barb. 656, 657, per S. B. Strong J. " Is, then, this plain- tiff the real part}'' in interesf? It seems to me from the evidence given by him- self and T. that he is not. He is not at all interested in the event of the suit ; for, should he recover, the money must go to T., and, should he fail, the loss would not he his, but would fall upon T." 2 James v. Chalmers, 6 N. Y. 209, 215, per Welles J. It is held in Hereth v. Smith, 33 Ind. 514, and cases cited, that, if the defendant desires to raise the issue in such an action, he must allege facts showing that the plaintiff is not the true party in interest; a denial is not suffi- cient. 8 Eaton V. Alger, 57 Barb. 179, 189. As the opinion of the court by James J. in this case contains a full statement of the argument in favor of the conclusion reached, I quote from it at considerable length. Evidence offered to prove the facts mentioned in the text was rejected on the trial, and a verdict was ordered for the plaintiff. " The question in this case is, whether the defendants should have been allowed to prove that the plaintiff is not the real owner of the note in suit. Every action is required to be brought in the name of the real party in interest, ex- cept as otherwise provided. No other pro-' vision covers a case like this. It would, therefore, seem very clear that a defend- ant, on such an issue made by the plead- ings, would have the right to show that the plaintiff was not the real party in interest, particularly if he had pleaded a defence in the action good as against such pretended real party. The plaintiff, how- ever, insists that, notwithstanding this pro- vision of the code, the indorsee of a note, or the holder of a note payable to bearer or indorsed in blank, may maintain an action upon it, although not in fact the owner, nor, as between himself and the owner, entitled to the proceeds when collected. That such was the rule before the code is conceded, and the argument is that it was abohshed by the code." Quoting from the Report of the Code Commissioners in relation to the section in question, he proceeds : " This section (§ 111) was adopted by the legislature precisely as submitted by the codifiers, showing that they approved of the reasons given by the codiflers for its adoption. It is quite immaterial, therefore, wliat was the rule previous to the code, if thereby the legis- lature intended to and did change the rule by express enactment. That they did so, we think, is clear from the language of the statute and the reasons for its adop- tion. In their reasoning, the codifiers alluded to the existing rules, and the necessity for a revision, one purpose of 158 CIVIL REMEDIES. the indorsee of a note. The Supreme Court held that the de- fendants might prove that the plaintiff had no interest in the note, but was a mere agent of the payee, and was bound to account to him, on demand, for the proceeds, and that these facts would constitute a complete defence to the action. § 130. Cases of higher authority, because decided by the New York Court of Appeals, have established the other rule for that State. In City Bank of New Haven v. Perkins,^ the rule which prevailed prior to the code was reaffirmed and applied to the facts before the court, although no allusion was made in its opinion to the provisions of § 111 (1501, 449, 1909, 1910). The doctrine was stated as follows : " Nothing short of mala fides or notice thereof will enable a maker or indorser of such paper to defeat an action brought upon it by one who is apparently a regular indorsee or holder, especially when there is no defence to the indebtedness. As to anything beyond the bonafi.des of the holder, the defendant, who owes the debt, has no interest." The same rule was repeated in Brown v. Penfield ; ^ but in this case also the proposed change being to require the real person in interest to appear in court as such, followed by an act providing that ' every action must be prosecuted in the name of the real party in interest.' This reasoning and this act seem too plain for misconception. The act is emphatic ; it uses the Saxon word ' must,' — a verb which has not yet been twisted by judi- cial construction, like the words ' may ' or ' shall,' into meaning something else, — to place beyond doubt or cavil what is intended." He then cites the cases al- ready quoted above in the text, and claims tliat the case in hand is distin- guishable from Bank of New Haven v. Perkins, 29 N. Y. 554, and Brown v. Pen- field, 36 N. Y. 473. He concludes as fol- lows : "Tlie law of this State no longer permits actions to be prosecuted in the name of nominal plaintiffs. The moment tliat fact appears, the action is ended, no matter what the character of the instru- ment on which it is founded, whether negotiable or not, or whether the defend- ant has or has not any defence to the in- debtedness." 1 City Bank v. Perkins, 29 N. Y. 554, 568, per Johnson J. The learned judge also said : " It will be time enough to de- termine whether any other person has a better title when such person shall come before tlie court to claim the bills in ques- tion, or their proceeds, from theplaintifi." The doctrine of City Bank v. Perkins is declared to be the settled general rule, but its operation explained and limited in Hayes v. Hathorne, 74 N. Y. 486. As sus- taining the general rule, see also Devol v. Barnes, 7 Hun, .342; Green v. Niagara Ins. Co., 6 Hun, 128 ; Davis v. Reynolds, 5 Hun, 651 ; Sheridan v. The Mayor, Sac., 68 N. Y. 30 ; Hardin v. Hilton, 50 Ind. 819 ; Hart v. Houchin, 50 Ind. 327 ; Cur- tis V. Spragne, 51 Cal. 239. 2 Brown v. Penfield, 36 N. Y. 473. The remarks of Davies C. J., in which this doctrine was reasserted, were, how- ever, mere obiter dicta. The action was by the plaintiff as assignee of T. & Co. The referee before whom the cause was tried found, as a fact, that T. & Co. never assigned the bills in suit to the plaintiff. The Supreme Court reversed this finding, on the ground that it was contrary to the evidence ; and the Court of Appeals af- firmed the latter decision. These two courts thus held that the plaintiff was the assignee of T. & Co., and was the owner of the paper. This ruling completely THE REAL PAKTY IN INTEEEST TO BE THE PLAINTIFF. 159 there was no reference made to the provision of the code relating to the real party in interest. It might be considered doubtful whether the question had been put to rest by these two decisions, but all doubt has been removed. The case of Eaton v. Alger was carried to the Court of Appeals ; the opinion of the Supreme Court was overruled ; and the original rule of the law in reference to suits upon negotiable paper was expressly held not to have been changed by the code.^ In this conflict among the decisions, the judgment of the court of last resort of course prevails ; and the question is thus settled in New York by the force of authority, whatever may be thought of the comparative weight of the argu- ment in support of either rule. § 131. The doctrine which prevails in Iowa seems to be the same as that now established in New York.^ The construction given to the statutory provision by the court of Indiana is en- tirely different, as it is held to include the indorsee and holder of negotiable paper as well as the assignee of any other thing in ac- tion. Such indorsee or holder, although possessed of the naked legal title, is not the real party in interest, and is not authorized to sue, if the beneficial interest and the whole right to the pro- ceeds of the recovery is in another party .^ It is, however, a disposed of the case ; and the whole dis- estof the plaintiff in the said note, and that cussion which the learned chief justice the plaintiff has not since acquired any thought proper to add was entirely un- interest in the residue of the said note ; necessary. that the plaintiff is not the real party in 1 Eaton V. Alger, 47 N. Y. 345 ; s. c. interest in this action, but that the said 2 Keyes, 41. Kowe is the exclusive owner of said note. 2 Cottle V. Cole, 20 Iowa, 481, 485, per This defence was held to be good on de- Dillon J. "The course of decision in murrer thereto. After citing the Revised this State establishes this rule ; viz., that Statutes of Indiana, which permit the as- the party holding the legal title of a note signment of negotiable paper, and ex- or instrument may sue on it, though he pressly declare that the assignee may sue be an agent or trustee, and liable to ac- thereon in his own name, and quoting the count to another for the proceeds of the provisionsof the code passed subsequently recovery; but he is open in such case to to the statute first referred to, which pro- any defence which may exist against the vide for suits being brought by the real person beneficially interested." party in interest, and also by " a trustee 3 Swift ,: Ellsworth, 10 Ind. 205. of an express trust or a person expressly Ellsworth sued on a note made by Swift authorized by statute to sue," Ilanna J., to one Rowe, and transferred by R. to who delivered the opinion of the court, the plaintiff. The answer set up, as the proceeds as follows : " Is the assignee of fourth defence, that the note was assigned a promissory note, who may hold it as by Rowe to the plaintiff to secure the sura such without any real interest, one of that of •$2,500,which Rowe owed to the plaintiff, class of persons here referred to as being and for no other consideration ; that after- ' expressly authorized by statute ' to wards the defendant paid to the plaintiff sue ? Or does the provision have refer- the said sum of $2,500, being all the inter- ence to another class of persons, such as 160 CIVIL REMEDIES. settled rule of pleading in Indiana, that an answer merely aver- ring that the plaintiff is not the real party in interest, but that some other person named is the real party, without alleging any facts from which these conclusions would arise, presents no issue.^ In Kentucky, also, the defence that the plaintiff is not the real party in interest may be set up in an action upon a promissory note or other negotiable instrument, brought by the person who is the apparent holder, or who has the naked legal title, although in that State, by virtue of an express provision of the code, the person having the legal title must also be made a party, either plaintiff or defendant.^ In an action by the assignee of a note against the maker thereof, it is no defence to show that the as- signment was made with intent to defraud certain creditors of > the assignor. This does not make the plaintiff any the less the real party in interest. As the assignor participates in the fraud, he could not repudiate his transfer, and has parted with all pos- sible interest in the note.^ Whenever the defence that the plain- tiff is not the real party in interest is allowable, it must be pleaded in the answer ; if not, it will be regarded as waived.* § 132. Analogous to the subject discussed in the preceding paragraph is the question whether an assignee, to whom a thing in action has been transferred by an assignment which is absolute in its terms, so as to vest in him the entire legal title, but which, by means of a contemporaneous and collateral agreement, is, in fact, rendered conditional or partial, is the real party in interest. It is now settled by a great preponderance of authority, although guardians of an idiot, &c. 1 We are of override an express permission given by a opinion that the clause of tlie section prior statute to all assignees of negotiable above quoted does not have reference to paper to sue upon the same in their own the rights of an assignee of a promissory names. Tliis is therefore a much stronger note, but to such persons as may be au- case than any which has arisen in New thorized to sue in their own names, be- York. See also Gillispie v. Fort Wayne, cause of holding some oflScial position, as &e. R. E., 12 Ind. 398. the president of a bank, or the trustee of i Lamson v. Falls, 6 Ind. 309 ; Me- a civil township. It therefore follows wherter v. Price, 11 Ind. 199 ; Garrison u. that the real party in interest, as was for- Clark, 11 Ind. 369 ; Swift v. Ellsworth, merly the rule in equity, must bring the 10 Ind. 205; Hereth v. Smith, -33 Ind. 614, action, subject to the provisions and ex- and cases cited. ceptions of the statute, and that, if any 2 Carpenter v. Miles, 17 B. Mon. 598, other than those thus authorized should 602. bring suit as plaintiffs, an answer showing s Rohrer v. Turrill, 4 Minn. 407. affirmatively the facts is a good answer." * Savage v. Corn Exch. Ins. Co., 4 It will be noticed that the general provi- Bosw. 2. sion of the code in question was made to THE EEAL PARTY IN INTEREST TO BE THE PLAINTIFF. 161 there is some conflict, that if the assignment, whether written or verbal, of any thing in action is absolute in its terms, so that by virtue thereof the entire apparent legal title vests in the assignee, any contemporaneous, collateral agreement by virtue of which he is to receive a part onty of the proceeds, " and is to account to the assignor or other person for the residue, or even is to thus account for the whole proceeds, or by virtue of which the abso- lute transfer is made conditional upon the fact of recovery, or by which his title is in any other similar manner partial or conditional," does not render him any the less the real party in interest : he is entitled to sue in his own name, whatever collateral arrangements have been made between him and the assignor respecting the pro- ceeds. The debtor is completely protected by the assignment, and cannot be exposed to a second action brought by any of the par- ties, either the assignor or other, to whom the assignee is bound to account. This is the settled doctrine in most of the States.^ Notwithstanding the general unanimitj' of the courts in sustain- 1 Allen V. Brown, 44 N. Y. 228, 231 (assignment without consideration, and assignee to be accountable to the assignor for all the proceeds) ; Meeker v. Claghorn, 44 N. Y. .349, 353 (facts similar to the last) ; Wetmore v. San Francisco, 44 Cal. 294 (assignment made as collateral secu- rity) ; Durgin ... Ireland, 14 N. Y. 322 (assignment in writing absolute, but by a contemporaneous agreement the assign- ors were to have one-half the proceeds) ; Castneru. Sumner, 2 Minn. 44; Williams V. Norton, 3 Kans. 295 ; Cottle v. Cole, 20 Iowa, 481 ; Curtis v. Mohr, 18 Wis. 615 ; Hilton V. Waring, 7 Wis. 492 (assignment as collateral security) ; Wilson v. Clark, 11 Ind. 385; Gradwohl v. Harris, 29 Cal. 150. In Castner o. Cook the notes in suit, which were for SsSilOO, were assigned as security for ^1,500, owing by the payee to the plaintiff, the latter giving back a bond to pay over the balance after satis- fying his own demand. Upon these facts the court, per Atwater J., said : " There may be a question as to whether the as- signment of the notes was absolute, or whetlier a contingent interest remained in the assignor. But in either case the ac- tion is properly brought in the name of the plaintiff. . . . The plaintiff was to re- ceive the money; and, if authorized to receiveit, the right to bring suit to collect it necessarily follows. Whatever may be the relations of the plaintiff to the assign- or can make no difference to the defend- ants. They can only raise the objection of a defect of parties to the suit, when it appears that some other person or party than the plaintiff has such a legal interest in the note that a recovery by the plain- tiff would not preclude its being enforced, and they be thereby subjected to the risk of another suit for the same subject-mat- ter. Wilson [the assignor] had no such interest. He had no interest in the notes, and not even a certain resulting interest in the proceeds of the notes." In Williams v. Norton a note payable to the order of the payee had been verbally transferred and delivered to the plaintiff without indorsement. The action by such assignee was held to be properly brought, even though he may not be entitled to apply to his own use the whole proceeds. "A delivery by the payee to his surety or indemnitor, with authority to receive the money and pay the principal debt, will enable the surety to sue in his own name. He will, within the meaning of the code, be the real party in interest." 11 162 CIVIL REMEDIES. ing this doctrine, there are still some indications of a different opinion, although it can hardly be said that this difference has been embodied in an adjudication as the ratio decidendi. The opinion to which I refer will be found at large in the note, as it is an able argument upon that side of the question.' Embraced Avithin the same principle, and governed by the same rule, is the case of an assignee of a thing in action, who, by the terms of the transfer, is not bound to pay the consideration thereof until the debt has been collected ; he is the real party in interest, and is fully authorized to sue in his own name.^ § 133. The following are particular cases in which the assignee was held by the courts to be the real party in interest within the meaning of the codes, and entitled as such to sue in his own name : Where a bond or a mortgage was assigned verbally ; ^ the assignment of a receipt and delivery order, which was in the fol- lowing words : " 1,000 bushels of corn. Received in store, on 1 Robins v. Deverill, 20 Wis. 142. The plaintiff sues as assignee of Peet & Williams. Dixon C. J. gave the fol- lowing opinion (p. 148) : " The statute is imperative that every action must be prosecuted in the name of the real party in interest, except as therein otherwise pro- vided. The proof is that the plaintiff is not the owner of the demand sued upon. It belongs to the firm of R. & L., com- posed of the plaintifE, his brother, and one Lewis. The demand was transferred to the plaintifE alone by words of absolute assignment, no trust being expressed, but, as the plaintifE himself testifies, he holds it nevertheless in trust for his firm. It was received on account of a debt due the firm of R. & L. from P. & W. Upon these facts it seems to me the plaintifE cannot maintain the action. He is not the real party in interest, nor the trustee of an express trust within the meaning of the statute. His brother and Lewis should have been joined as plaintiffs." After describing the requisites necessary to constitute a trustee of an express trust, the judge concludes : " In this case no agreement is shown that the plain tiflf was to t^ke or hold as trustee ; and that he is a trustee results only from other circum- stances. It is implied from the facts of the partnership, and that the plaintiff re- ceived the assignment on account of a debt due the firm." The court refused to pass upon these questions, holding that they were not raised by the pleadings in the cause ; that a defect of parties (if any) had been waived. See also cases cited ante, under § 130. 2 Cummings u. Morris, 25 N. Y. 62.5 ; s. c. 3 Bosw. 560. In delivering the judg- ment of the Court of Appeals, Allen J. said (p. 627) : " The object of the provi- sion (§ 111) was to abolish the distinction between the former practice of courts of chancery and of common law, and to give full effect at law, as well as in equity, to assignments of rights in action, by per- mitting and requiring the assignee to sue in his own name. If between the as- signor and the assignee the transfer is complete, so that the former is divested of all control and right to the cause of ac- tion, and the latter is entitled to control it and receive its fruits, the assignee is the real party in interest, whether the assign- ment was with or without consideration, and notwithstanding the assignee may have taken it subject to all equities be- tween the assignor^and third persons." 8 Conyngham v. Smith, 16 Iowa, 471 ; Barthol v. Blakin, 34 Iowa, 452 ; Green v. Marble, 37 Iowa, 95 ; Andrews v. McDan- iel, 68 N. C. 885. THE EEAL PARTY IN INTEREST TO BE THE PLAINTIFF. 163 account of S. F. A., 1,000 bushels of corn, to be delivered to his order at, etc., etc. (signed) W. H. H. ; " ^ assignment of a prom- issory note payable to order without any indorsement;^ the assignment of a debt evidenced by a lost note ; ^ where the as- signment of a bond or note was by means of a separate instru- ment in writing ; * the assignment of a claim arising from an agreement to pay the defendant in a certain pending suit a stipu- lated sum of money if he would withdraw his defence ; ^ the assignment of a claim for damages resulting from the wrongful conversion of chattels ; ® the assignment by a widow of her right of dower after the death of her husband, but before the dower had been set apart to her.'' The mere parting with the posses- sion of a note does not, however, constitute an assignment thereof, and the owner is the proper party to sue, although the instrument is in the hands of another person with whom it has been depos- ited.* The assignee of a foreign executor or administrator may maintain an action in his own name to recover a debt due to the estate from a person residing within the State in which the suit is brought.^ Upon the same principle, when a demand not aris- ing within the State, in favor of one foreign corporation against another foreign corporation, is assigned to a resident of the State, such assignee may maintain an action upon it against the debtor corporation, although the original creditor is expressly forbidden by statute to sue under such circumstances. The prohibition of an action between the foreign corporations does not aflFect the assignability of the claim.^" § 134. The assignee of a judgment recovered by the defendant I Merchants and Mechanics Bank v. ^ Petersen v. Chemical Bank, 32 N. Y. Hewitt, 3 Iowa, 93. 21. The decision turned largely upon ^ Carpenter v. Miles, 17 B. Mon. 598 ; the law as to foreign administrators and White V. Phelps, 14 Minn. 27 ; Pease v. successions. In reference to the questions Rush, 2 Minn. 107; Pearson v. Cum- now under consideration, Denio J. said mings, 28 Iowa, 344 ; Hancock v. Ritchie, (p. 45) : "The law of maintenance pro- 11 Ind. 48. hibited the transfer of the legal property 8 Long V. Constant, 19 Mo. -320. in a chose in action so as to give the as- * Thornton v. Crowther, 24 Mo. 164 ; signee a right of action in his own name. Peters v. St. Louis, &c. R. R., 24 Mo. 586. But this is now abrogated ; and such a 5 Gray v. Garrison, 9 Cal. 325. demand as that asserted against the de- 8 Smith V. Kennett, 18 Mo. 154 ; Laz- fendant in this suit may be sold and con- ard V. Wheeler, 22 Cal. 139. In this last veyed so as to vest in the purchaser all case an action by the assignee to recover the legal as well as the equitable rights of possession of the chattels was sustained, the original creditor." 7 Strong V. Clem, 12 Ind. 87. i» McBride v. Farmers' Bank, 26 N. Y. 8 Selden v. Pringle, 17 Barb. 458. 450, 457. 164 CVm KEMEDIES. in an action brought to recover the possession of chattels may sue in his own name upon a bond given by the plaintiff upon the requisition made for a delivery of the goods to him. The assign- ment of the judgment carries with it all demands arising upon this bond or undertaking, and the assignee is the real party in interest.^ In like manner, the assignee of a judgment recovered against a sheriff for official misconduct in seizing the plaintiff's property may bring an action in his own name upon the sheriff's bond.2 The principle maybe stated more broadly. The assignee of any claim or demand may, in general, sue in his own name upon any incidental or collateral security connected with the demand, and by means of which its payment or satisfaction can be en- forced. Thus, the assignee of a judgment obtained in a garnishee process may maintain an action in his own name against the garnishees;^ the assignee of the cause of action in a pending litigation may sue on an appeal bond given to the plaintiff [the assignor] in the course of the proceedings.* The assignee of a reversion and also of the covenants contained in the lease is the proper party to bring an action to recover damages arising from a breach of such covenants.^ When a surviving partner assigns things in action which belonged to the firm, the assignee succeeds to his rights, and must sue in his own name to collect the same.^ § 135. In Kentucky, if the assignment is equitable, which is defined to be an assignment not expressly authorized by statute to be made, although the assignee must sue in his own name, the assignor must also be joined as a party plaintiff or defendant ; ^ as, for example, when an execution is assigned,* or a lease.^ In 1 Bowdoin v. Coleman, 3 Abb. Pr. 431. ates on the remedy even more extensively 2 Charles v. Haskins, 11 Iowa, 329. than tlie statute of 32 H. VIII. c. 34. Tor 8 Whitman v. Keith, 1 Ohio St. 134. whether the covenant be collateral or in- Tn this case, Mr. Justice Scott gives a here in the land, if it be assigned, the as- very full and clear exposition of the stat- signee not only may, but must, sue in his utory provision under consideration. own name." * Bennett v. McGrade, 15 Minn. 132. ^ Rgyg „, Vilas, 18 Wis. 169. Same as to assignment oE a contract, ' Dean v. English, 18 B. Mon. 132; Gallagher o. Nichols, GO N. Y. 438, 448, Gill v. Johnson, 1 Mete. 649; Lytle v. 449 ; Bolen v. Crosby, 49 Id. 183. Lytle, 2 Mete. 127. 6 Masury u. Southworth, 9 Ohio St. 8 Watson v. Gabby, 18 B. Mon. 658, 340. Gholson J., after stating that the 665. statute of 32 Henry VIII. c. 34, allowing « Hicks v. Doty, 4 Bush, 420. By 1 the assignee of the reversion to sue on R. S. ch. 22, § 6, "all bonds, bills, or notes covenants running with the reversion, had for money or property shall be assignable not been enacted in Ohio, proceeds (p. so as to vest the right of action in the as- 816) : " Our code of civil procedure oper- signee." THE KEAL PARTY IN INTEREST TO BE THE PLAINTIFF. 165 certain States, where the thing in action is not negotiable, or assignable by indorsement, the assignor may be joined as a de- fendant to answer to his interest and to the assignment.^ In other States, however, where similar provisions are not found in the codes or practice acts, the rule is entirely different, and the assignor is not a proper party either plaintiff or defendant. Thus, in Ohio, an assignor having been made a defendant under the general provisions of the code relating to the joinder of parties plaintiff and defendant, it was held that he neither had an inter- est in the controversy adverse to the plaintiff, nor was he a necessary party to a complete determination or settlement of the questions involved therein, and therefore he had been improperly made a defendant.^ This is undoubtedly the rule in all the States whose codes do not contain the special provision permitting or requiring the joinder of assignors in order to answer to the assignment. And even though he may retain some residuary, contingent, or equitable interest, the assignor is not the proper party to sue ; the legal title is not only in the assignee, but he is entitled to receive all the proceeds of the recovery, and whatever possibilities . the assignor may have, he is not the real party in interest.^ § 136. The thing in action may even be assigned while a suit upon it is pending, and, by the express provisions of the statute, the assignee may either be substituted as plaintiff, or the suit may be carried on to its termination in the name of the original party. Such substitution, when made, is not the bringing of a new action, and does not require a supplemental complaint. If an assignee carries on a suit in the name of the assignor, he must show affirmatively that the transfer was made pendente lite} § 137. It has been decided in some cases that the assignment of part of an entire claim does not enable the assignee to sue in his own name, but that the assignor must still sue for the whole de- mand.^ This rule is based upon the old doctrine of the indivisi- i Code of Indiana, § 6. < St. Anthony Mill Co. v. Vandall, 2 Allen V. Miller, 11 Ohio St. 374. 1 Minn. 246 ; Virgin v. Brubaker, 4 3 Smith V. Chicago & N. W. E. R., 23 Nev. 31 ; Warner v. Turner, 18 B. Mon. Wis. 267, where it appeared that in pro- 758. ceedings supplementary to execution, be- ^ Cable v. St. Louis Marine Eaihvay fore instituted against the plaintiff in Co., 21 Mo. 133 ; Leese u. Sherwood, 21 another State, the demand in suit had Cal. 151. See Lapping v. Duffy, 47 Ind. been assigned to a receiver; this was held 56 ; Boyle v. Robbins, 71 N. C. 130. a complete defence. 166 CIVIL KEMEDIES. bility in law of an entire thing in action. Other cases hold that such an assignment conveys an equitable interest, and makes the assignee an equitable owner, so that he may sustain an action brought in his own name, although the assignors may, upon their own application, be allowed to intervene, in order to protect their interests.^ The grantee of land cannot sue in his own name to recover damages for the breach of covenants in the deed to his grantor which do not run with the land, unless the covenants themselves have also been assigned, but the grantor is the proper party ; as, for example, the grantee cannot sue upon a covenant of seisin in the deed to his grantor, in those States where that covenant is regarded as broken immediately, if at all, upon the execution of the deed, and as not running with the land.^ § 138. It is no longer, consistently with the provisions of the codes, possible for one person to sue " to the use of" another, as was common in some States. The parties beneficially interested must themselves bring the action.^ There are cases which hold that when there is a trustee of an express trust, he must bring the action, and that the beneficiary can in no such case sue in his own name, at least alone.* The correctness of this ruling may well be doubted. The section relative to the real party in inter- est is, in all the codes, imperative ; while that in relation to the trustee of an express trust is permissive. § 139. The cases thus far considered in this section are all con- nected with the assignment of a thing in action by the original creditor, and they involve the question, when may the assignee, under such circumstances, be the party plaintiff in an action to enforce the assigned demand ? The rule of the statute, that every action must be brought in the name of the real party in interest, applies also to numerous cases which have no connection whatever with assignments and assignees ; and I propose, in the 1 Grain v. Aldrich, 38 Cal. 514 ; Wig- Chandler, 31 Mo. 28 ; Van Doren v. Eelfe, gins V. McDonald, 18 Cal. 126. 20 Mo. 455 ; Wilkes v. Morehead, Stan- 2 Hall f. Plaine, 14 Ohio St. 417. TJn- ton's Code (Ky.), p. 31 (n.); Lytle v. der the peculiar circumstances of this case, Lytle, 2 Mete. 127, 128. Also, State v. the court held that the grantee might sue, Johnson, 52 Ind. 197 ; Shane v. Francis, because he was the real owner of the land, 30 Id. 92. even when in the hands of his grantor; * Reed v. Harris, 7 Robt. 151. A Spe- but the general doctrine of the text was cial Term decision, and not entitled to affirmed. much weight. See Western R. R. k. Nolan, 3 Weise v. Gerner, 42 Mo. 527 ; Hutch- 48 N. Y. 513. ings u. Weems, 35 Mo. 285; Brady v. THE KEAL PARTY IN INTEREST TO BE THE PLAINTIFF. 167 remainder of this section, to review and examine these other illustrations of the principle. It is now the settled doctrine in so many of the States, that it may be called the American doctrine, — although the contrary rule has been established in England and in some States, and notably in Massachusetts, where it has been very recently reaffirmed with emphasis, — that, where an express promise was made by A. to B., upon a consideration mov- ing from B., whereby the promisor engages to do something for the benefit of C, as, for example, to pay him a sum of money, although C. is both a stranger to the consideration and not an immediate party to the contract, yet he may maintain an action upon the promise in his own name against the promisor, without in any manner joining as a party the one to whom the promise was directly made.^ This rule was originally adopted prior to the reformed procedure, and was based partly upon considerations of convenience, and partly upon a liberal construction of the nature of the contract. Tlie provision of the codes under review places the matter beyond all doubt ; for the person for whose benefit the promise is thus made is certainly the real party in interest. The following are some examples and illustrations of this rule : Where a partnership assign their assets, and, in consideration thereof, the purchaser agrees with the members to paj"- all their firm-debts, any creditor of the partnership may sue him upon this undertaking, and recover the amount of the indebtedness due to the plaintiff thus suing,2 and may even sue him and the sureties who united with him in his undertaking to the assigning parties ; ^ and where many subscribers contriljuted different sums of money to the de- fendant for a specified purpose, and he entered into a written contract with three persons, whereby among other things, he pro- 1 Kimball v. Noyes, 17 Wis. 695 ; ley, 42 N. Y. 316, 319 ; Secor u. Lord, 3 Sanders v. Clason, 13 Minn. 379; Meyer Keyes, 525; Claflin v. Ostrom, 54 N. Y. V. Lowell, 44 Mo. 328 ; Cross v. Truesdale, 581, 584 ; Cooley v. Howe Machine Co., 28 Ind. 44 ; Devol v. Mcintosh, 23 Ind. 53 N. Y. 620 ; Glen v. Hope Mut. Life Ins. 529 ; Day v. Patterson, 18 Ind. 114 ; Bice Co., 56 N. Y. 379, 381 ; Barlow v. Meyers, V. Savery, 22 Iowa, 470 ; Scott v. Gill, 19 6 N. Y. Sup. Ct. 183 ; Johnson v. Knapp, Iowa, 187 ; Allen v. Thomas, 3 Mete. (Ky. ) 86 Iowa, 616 ; Jordan •,. White, 20 Minn. 198 ; Wiggins v. McDonald, 18 Cal. 126 ; 91. Miller & Co. u.Florer, 15 Ohio St. 148, 151, 2 Sanders u. Clason, 13 Minn. 379 ; per White J. ; Rogers v. Gosnell, 58 Mo. Meyer v. Lowell, 44 Mo. 328, and cases 589, 590 ; 51 Mo. 46fa ; Meyer v Lowell, 44 cited ; Barlow v. Meyers, 6 N. Y. Sup. Ct. Mo. 328 ; Coster v. Mayor of Albany, 43 183. N. Y. 399,411; Van Schaick v. Third s Kimball v. Noyes, 17 Wis. 695; Devol Avenue R. R., .38 N. Y. 346 ; Ricard v. v. Mcintosh, 23 Ind. 529 ; Claflin v. Os- Sanderson, 41 N. Y. 179; Barker v. Brad- trom, 54 N. Y. 581, 584. 168 CIVIL REMEDIES. raised to repay the sums so loaned, it was held that anj"- subscriber might sue ou the agreement to recover the amount which he advanced ; ^ and where A. placed a sum of money in the hands of B., which the latter promised to pay over to C, C. may prosecute an action against B. on his promise.^ Where the defendant was indebted to A., who was in turn indebted to B. in a less amount, and the two former parties agreed that defendant should pay to B. the amount of the latter's demand, which should be fro tanto a payment on his own debt to A., B. was permitted to recover on this promise.^ If in a policy of insurance it is stipulated that the loss, if any, shall be paid to a person named, not the assured, such person may sue in his own name on the policy.* B. sold and de- livered goods to A., and in consideration thereof A. promised to pay a certain sum to C, which was, in fact, the amount of a debt due from B. to C. ; it was held that C. could recover upon the promise so made by A. in his behalf.^ Perhaps the most striking illustration of this doctrine, and of the extent to which it has been carried, is found in a class of cases where, upon a convey- ance of land, the grantee assumes and promises to pay a debt which is secured by mortgage on the land so conveyed. If the grantee of land incumbered by a mortgage assumes the mortgage debt by a clause in his deed, and promises to pay the same, the creditor-mortgagee may maintain an action against this grantee upon the bond or other evidence of the indebtedness, and recover the amount thereof, and is not restricted to the remedy by fore- closure of the mortgage ; ^ and the creditor may thus sue the grantee upon the bond, even though that instrument had expressly provided that the mortgagee should first have recourse on the land, and the obligor should only be liable for the deficiency which might arise after the foreclosure ; this stipulation, it was held, protected the obligor personally, and could not be taken advan- tage of by the grantee who had promised to pay the debt.'' The result of these and other decisioias is, that the third person, for whose benefit an undertaking is entered into between other par- 1 Rice u. Savery, 22 Iowa. 470, 477. Y. Sup. Ct. 33, 39; Newman v. Spring- Dillon J. speaks of the rule as well field Ins. Co., 17 Minn. 123, 126. Bettled. 5 Hall v. Roberts, 61 Barb. 33. 2 Allen !). Thomas, 3 Mete. (Ky. ) e Lawrence v. Fox, 20 N. Y. 268 ; Burr 198. «• Beers, 24 N. Y. 178. 8 Wiggins V. McDonald, 18 Cal. 126. '> Thorp v. Keokuk Coal Co., 48 N. T. * Cone V. Niagara Fire Ins. Co., 3 N. 253. THE KEAL PARTY IN INTEREST TO BE THE PLAINTIFF. 169 ties, may sue upon it, although such undertaking is an instrument in writing and under seal.^ This doctrine is plainly a departure from the technical notions of the common law, which did not permit a person to sue upon a contract unless he was a party to it, or unless the consideration moved from him, and which espe- cially forbade an action upon a sealed undertaking by a stranger. The courts of some States adhere strictly to this old notion, and utterly repudiate the innovation.^ The new rule, however, is as convenient as it is just. The objections to it are every way tech- nical and arbitrary, — a repetition of verbal formulas without any convincing reasons. It certainly avoids a circuity of actions, and it enables the only person beneficially interested in the prom- ise — the real party in interest — to come into court in the iirst instance and establish his rights, without being driven to enforce them in a roundabout manner through the intervention of a third person who, if successful, must account to him for the proceeds of the litigation. The true extent and application of the doctrine, and the proper limitations upon it, have been discussed and fixed by the New York Court of Appeals in very recent cases.^ § 140. Upon the same principle, the equitable owner of a promissory note is the real party in interest within the statute, and is the proper person to sue upon it, although there may be no indorsement, and possession of the instrument is prima facie evidence of such ownership.* In fact, wherever the spirit of the reformed system is carried out, — and this is now very generally, • Coster V. Mayor of Albany, 4-3 N. Y. is also available against the beneficiary. 399, 411; Van Schaick u. Third Avenue Phillips v. Van Sehaick, 37 Iowa, 229. R. E., 38 N. Y. 346 ; Ricard i;. Sanderson, See also Green u. Richardson, 4 Col. 41 N. Y. 179 ; Lawrence v. Fox, 20 N. Y. 584 ; McKinnon u. McKinnon, 81 N. C. 268 ; Burr v. Beers, 24 N. Y. 178 ; Thorp 201 ; Cone v. Niagara Ins. Co., 60 N. Y. V. Keokuk Coal Co., 48 N. Y. 25.3 ; Kim- 019 ; Barlow v. Myers, 64 Id. 41 ; Arnold ball u. Noyes, 17 Wis. 695; Devol v. r. Nichols, 64 Id. 117 ; Simson ». Brown, Mcintosh, 23 Ind. 529; Barker v. Brad- 68 Id. 355; Lake Ontario, &c. R. R. v. ley, 42 N. Y. 316, 319 ; Secor u. Lord, 3 Curtiss, 80 Id. 219 ; Dunning v. Leavitt, Keyes, 525 ; Caflin v. Ostrom, 54 N. Y. 85 Id. 301 ; Root v. Wright, 84 Id. 72, 74, 581, 584 ; Glen v. Hope Ins. Co., 56 N. Y. 75 ; Pardee v. Treat, 82 Id. 385 ; Vrooman 379, 381 ; McDowell v. Laev, 35 Wis. 171. v. Turner, 69 Id. 280 ; Rowe v. Parsons, 2 Exchange Bank v. JBice, 107 Mass. 6 Hun, 338. 37, per Gray J. * Garner v. Cook, 30 Ind. 331 ; Comp- 8 Garnsey v. Rogers, 47 N. Y. 233, 240, ton v. Davidson, 31 Ind. 62. In tlie latter per Eapallo J. ; Merrill v. Green, 55 N. Y. case, the answer denied that the plaintiff 270, 273 ; Turk v. Ridge, 41 N. Y. 201, was " the legal owner of the note in suit." 206. See also Hinman v. Bowen, 5 N. Y. This was held no defence, as it was sufiS- Sup. Ct. 234, which holds that a defence, cient if he was the equitable owner. good as against the immediate promisee, 170 CIVIL REMEDIES. if not universally, the case, — the equity rule as to parties is freely applied to all legal actions, and this one' principle will easily solve all particular cases of difficulty or doubt.^ But, as has been shown in preceding paragraphs, the law as to commercial paper has not been changed in several of the States by this pro- vision of the statute in reference to the parties plaintiff ; and in those States, therefore, the indorsee, and, a fortiori, the payee of a negotiable note or bill may maintain an action upon it, even though there may be relations between himself and third persons which give them a right of action over against him for the pro- ceeds. As, for example, if A., having in his hands money be- longing to B., should loan it, and take a note from the borrower payable to himself, he could sue upon it ; however much B. might have been interested in the original money, and however valid a demand he may have against A., he is not a party to the note nor the holder of it.^ In the class of cases already mentioned, where an express contract is made with one for the benefit of another, and the person thus beneficially interested is permitted to sue in his own name, the one to whom the promise was expresslj'' given may, in general, also maintain an action. The promise being actually made to him, and the consideration moving from him, he is legally the contracting party, and is clothed with the legal right ; indeed, he falls under the definition of trustee of an ex- press trust given in another section of the codes .^ 1 Conyngham v. Smith, 16 Iowa, 471 ; lias been actually sold and transferred to Tate V. Ohio, &c. R. R., lOInd. 174 ; Swift him by a valid verbal contract, there is V. Ellsworth, 10 Ind. 205. In the first of no reason why, under our system of plead- these cases, Wright C. J., describing the ing and practice, he may not maintain his effect of the Code of Procedure, said (p. action in manner and form as stated in his 475) : " If the cause of action is cogni- petition." zable at law, the party having tlie real • Bobbins v. Cheek, 32 Ind. 328 ; Rob- interest therein is to be heard in that bins v. Dishon, 19 Ind. 204. form, if equitable, in equity. His pro- 3 gee Rice v. Savery, 22 Iowa, 470, ceeding, in other words, is to be ' ordi- 477 ; Cottle v. Cole, 20 Iowa, 481, 485. In n.iry' or 'equitable,' according to the the former of these cases Dillon J. said : nature of the cause of action. And the " If the promise is made for the benefit of question is determined, not so much by another, who is the real party in interest, the evidence showing the interest, as by the latter may sue, though the contract the fact that he is the real party in in- was made to an agent or trustee ; or terest, and has for his cause of action a the agent or trustee, or person in whose subject-matter of which the law will take name a contract is made for the benefit of cognizance. In other words, the equity another, may sue witliout joining tlie rule as to parties is now applied to law party for whose benefit the suit is prose- actions, if the relief asked may be given cuted." This subject is treated at large in that court. And therefore, if the plain- in a subsequent section, tiff is the real owner of this bond, if it THE REAL PAETT IN INTEREST TO BE THE PLAINTIFF. 171 § 141. The following are additional examples of actions main- tained by the real party in interest, and in which the equity doctrine on this subject has been freely applied, although the rights to be protected and the remedies to be obtained were legal. After a judgment had been obtained in an action of ejectment prosecuted according to the old form by John Doe as the fictitious plaintiff, the succeeding action to recover the mesne profits of the land should be brought in the name of the actual owner of the fee, — the lessors of the plaintiff in the ejectment, ^ they being the real parties in interest.^ An undertaking given to the sheriff by the defendant in an action for the recovery of chattels, in order to procure a return of the goods, should be prosecuted by the plaintiff in that action, since he is the real party in inter- est ; ^ and it is said to be a general rule in Iowa that when a bond or undertaking is given to an officer, in the course of some judicial proceeding, for the security of any particular person, such person may sue upon it in his own name without the for- mality of an assignment.^ If a levy by virtue of an execution is made upon chattels by a deputy sheriff, and the goods are wrong- fully taken from his possession, an action against the wrong-doer should be brought by the sheriff; he is the real party in interest, since the deputy sheriif acted simply as his agent.* An injunc- tion bond having been given to two obligees, defendants in the action, one of them only was injuriously affected by the injunction and suffered any damage therefrom ; he alone, it was held, could maintain an action on the undertaking, as he was the only party in interest, and a suit in the names of both united as plaintiffs was declared to be ■ improperly brought ulider the code.^ A plaintiff in a pending suit having moved for the appointment of a receiver, the application was denied on condition that the de- fendant give a bond or undertaking to account himself as though he were a receiver for all assets which might come into his hands, and in pursuance of this order he gave a bond in form running to the State ; the plaintiff having recovered judgment, and the defendant failing to account, the action on the undertaking was properly brought at once by the plaintiff in his own name, with- 1 Masterton v. Hagau, 17 B. Mon. 325. 2 McBeth v. Van Sickle, 6 Nev. 134. It must be understood that the new system ^ Moorman v. Collier, 32 Iowa, 138. had gone into effect a/ler the commence- * Terwilliger v. Wheeler, 3.5 Barb. 620. ment of the ejectment, and before that * Summers v. Parish, 10 Cal. 347. of the second action for mesne profits. 172 CIVIL REMEDIES. out any assignment to him by the State.^ A person in whose name a business was secretly carried on by the defendant and others in order to conceal their property and interest from their creditors, was permitted to recover the value of assets received in the course of the business, which had been taken by the de- fendant and converted to his own use.^ Where several persons were owners of a chattel, but for purposes of convenience the title stood in the name of one of them alone, and he executed a bill of sale of it in his own name to a purchaser who supposed that his immediate vendor was solely interested, it was held that all the owners might join as plaintiffs to recover the price ; they were the real parties in interest under the provision of the code.^ This case is a particular instance of a general rule. It is now settled that when a simple contract, whether verbal or written, is entered into by an agent in his own name, but really acting on behalf of an undisclosed principal, and the fact of the agency is unknown at the time, but the parties suppose that they are dealing with him on his own individual account, the principal may bring an action and recover upon it as though he had been the party expressly contracting.* In these cases, however, the agent may also bring the action ; he being one of the contracting parties, the agreement being in express terms made with him, he is a proper party to enforce its observance ; ^ the agent may also sue, even where the principal was disclosed, and it was shown that he was acting in behalf of such principal, if the contract is of such a form that the promise is in express terms made to the agent himself.^ Where the promise in favor of a principal is implied, the agent cannot in general sue upon it in his own name, but the action must be brought by the principal himself. Thus, 1 Baker v. Bartol, 7 Cal. 551. s Silliman v. Tuttle, 45 Barb. 171. 2 Paddou V. Williams, 2 Abb. Pr. * St. John v. Griffith, 2 Abb. Pr. 198 ; N. s. 88. The plaintiff certainly had Hall v. Plaine, 14 Ohio St. 417 ; Higgins the legal title, and the court seemed to v. Senior, 8 M.&W. 834; Sims D.'Bond, think that it should prevail over an alleged 5 B. & Ad. 389, 393, per Ld. Denraan ; equitable title that was based upon fraud. Bastable v. Poole, 1 C, M. & R. 410, per But as the plaintiff was also a participant Parke B. ; Hicks v. Whitmore, 12 Wend, in the fraud, it is difficult to perceive why 548 ; Taintor v. Prendergast, 8 Hill, 72. the court should interfere and aid him ^ ggg cases cited in last note. Tyler against the one in possession. It is the v. Freeman, 3 Gush. 261. general rule that persons who have en- ^ Gases cited in last notes. Fear v. tered into fraudulent arrangements, and, Jones, 6 Iowa, 169 ; Usparicha v. Noble, falling into disputes among themselves, 13 East, 232; Buffum v. Ghadwick, 8 apply to the court for help, shall be left Mass. 108 ; Fairfield v. Adams, 16 Pick. in statu quo. 881. ACTIONS BY TAX-PAYEES. 173 where a person making a bet in his own name deposited 13,000, the amount thereof, M'ith the stakeholder, but of this sum only 1600 was his own money, and the rest had been furnished by other parties — not as a loan — who united with him in the wager, and he brought an action under the statute against the stakeholder to recover back the whole amount of the money so deposited by him, it was held by the New York Court of Appeals that he could only recover the $600 which he had actually fur- nished of his own funds; that he was simply an agent for the owners of the remaining portion of the moneys "advanced, and the implied promise to refund arose in their favor alone ; and they must therefore sue in their own names to recover their respective shares.' § 142. It is the established doctrine in several States, and by many cases, that an action cannot be maintained by a private person, citizen, freeholder, or tax-payer, either suing alone or on behalf of all others similarly situated, to restrain or remove or redress any public wrong, or nuisance, or unlawful act done under color of legal authority by the officers of a county, town, city, or other municipality, unless the plaintiff has suffered some special wrong, unless some particular injury is done to him which is not sustained by all others in the community alike. As a result of this rule, no citizen or tax-payer or freeholder can prosecute an action to restrain official acts which would create a municipal indebtedness; or to set aside and annul such public acts when done, although the indebtedness must some time be paid by means of increased taxation, and the plaintiff's property would be liable for his proportionate share of the tax when levied.^ On 1 Ruckmanw. Pitcher, 20 N.Y. 9. The 234; Kohnweiler v. Anderson, 78 N. C, court say : " An agent may, in many 133 ; Mann v. Mlna Eire Ins. Co., 38 cases, sue upon express contracts made Wis. 114 ; Kellogg v. Adam, 81 id. 138 ; with himself by name." In this case, the Scljool Directors v. Coe, 40 id. 103 ; Terri- right of action, it was held, rested upon tory v. Co.\, 3 Mont. 197; Dunning v. the defendant's implied duty of restoring Ocean Nat. Bk., 61 N. T. 497 ; Olmstead the money. "But this implied duty or i'. Keyes, 85 id. 593; Green v. Eepublic assumpsit arises only in favor of those to Fire Ins. Co., 84 id. 572; Conn. Fire Ins. whom tlie money in fact belonged, and Co. v. Erie R. R., 73 id. 399, 405 ; Rowe v. therefore cannot be enforced in the name Parsons, 6 Hun, 338. of another person to whom the obligation ^ Doolittle v. Supervisors of Broome is in no sense due." For further ex- Co., 18 N. Y. 155; Roosevelt o. Draper, amples of the real party in interest, see 23 N. Y. 318 ; People v. Mayor, 32 Barb. Winona, &c. R. R. v. St. Paul, &c. R. R., 102 ; Sargent v. Ohio and Miss. R. R., 1 23 Minn. 359; Lafayette Co. v. Hixon, Handy, 52; Carpenter v. Mann, 17 Wis. 69 Mo. 581 ; Quellen v. Arnold, 12 Nev. 155 ; Kittle o. Fremont, 1 Neb. 320 ; 174 CIVIL REMEDIES. the other hand, actions of the nature and for the purposes de- scribed, brought by a citizen, tax-payer, or -freeholder, are per- mitted in many and perhaps in a majority of the States, and are common forms of judicial proceeding to restrain the abuse of local legislative and administrative power by municipal officials. Among these remedial processes are actions by a citizen, tax- payer, or freeholder, to restrain or set aside tax proceedings, the levying of assessments for local improvements, the issue of bonds by municipal corporations in aid of railways, and similar acts of a public or quasi public nature. ^ On the other hand, the people Craft V. Commissioners, &c., 5 Kans. 518 ; Kirkpatrick v. State, 5 Kans. 673; Tift V. City of Buffalo, 1 N. Y. Sup. Ct. 150 ; Corains v. Supervisors, 3 ib. 296 ; Ayres V. Lawrence, 63 Barb. 454 ; Demarest v. "Wickliam, 63 N. Y. 320 ; Kilbourn v. St. John, 59 id. 21 ; Lutes v. Briggs, 6i id. 404 ; "Wood v. Bangs, 1 Dacota, 179. 1 Kice V. Smith, 9 Iowa, 570; State v. Bailey, 7 ib. 390 ; State v. Co. Judge, 7 ib. 186; Litchfield v. Polk Co., 18 ib. 70; Olmstead v. Supervisors, 24 ib. 33 ; Wil- liams V. Peinny, 25 ib. 430 ; Stokes v. Scott Co., 10 ib. 166 ; McMillan v. Boyles, 14 ib. 107 ; Rock v. Wallace, 14 ib. 593 ; Ten Eyck . Holly, 4 W. Va. 597 ; Bull v. Read, 13 Gratt. 78 ; Baltimore v. Gill, 31 Jld. 375, 395 ; Stod- dert V. Ward, 31 MJ. 562; Lane v. Schomp, 5 C. E. Green (N. J.), 82 ; Mer- rill V. Plainfield, 45 N. H. 126; Barr v. Deniston, 19 N. H. 170, 180 ; New Lon- don V. Brainard, 22 Conn. 552; Scofield V. Eighth School Dist., 27 ib. 499, 504 ; Webster v. Harwinton, 32 ib. 131 ; Terret V. Sharon, 34 ib. 105 ; Supervisors v. Hubbard, 45 111. 139 ; Vieley v. Thompson, 44 III. 9 ; Cleghorn v. Postlewaite, 43 ib. 428; Taylor v. Thompson, 42 ib. 9; Clark V. Supervisors, 27 ib. 805, 311 ; Butler V. Dunham, 27 ib. 474 ; Perkins v. Lewis, 24 ib. 208 ; Robertson v. Rockfort, 21 ib. 451 ; Prettyman v. Supervisors, 19 ib. 406; Drake v. Phillips, 40 ib. 388; Colton V. Hancliett, 13 ib. 615 ; Dows v. Chicago, 11 Wall. 108. See Dillon on Munic. Corp. §§ 727, 731-738 (2d ed.); Allison V. Louisville, &c. R. R., 9 Bush, 247. See also the very late N. Y. cases, Longley v. City of Hudson, 4 N. Y. Sup. Ct. 353; Marsh v. City of Brooklyn, ib. 413 ; Board of Comm'rs v. Markle, 46 Ind. 96, 103-105 ; Zorger v. Township of Rap- ids, 36 Iowa, 175 ; Minnesota Oil Co. v. Palmer, 20 Minn. 468 ; Hodgman v. Chi- cago & St. P. R. R., 28 Minn. 48 ; Moses V. Kearney, 31 Ark. 261 ; Normand v. Board of Comm'rs, 8 Neb. 18 ; Noesen v. Port Washington, 87 Wis. 168; Board of Comm'rs v. Templeton, 51 Ind. 266 ; Board of Comm'rs v. McClintock, 51 Ind. 325 ; Turpin v. Eagle Creek, &c. Co., 48 Ind. 45 ; Ayers v. Lawrence, 59 N. Y. ACTIONS BY GEANTOKS OF LAND. 175 cannot maintain a civil action for the redress of mere private wrongs. An action can be brought in their name only to uphold and enforce a distinct right on their part in respect to the subject- matter of the. controversy .1 § 143. The last clause of § 111 (1501, 449, 1909, 1910) in the New York Code was added as an amendment merely for purposes of certainty, and to remove all possible doubts as to the true meaning of the section. As it was originally enacted without this clause, a doubt had sometimes been suggested whether any action at all could be brought under the circum- stances mentioned in the amendment, that is, when land had been conveyed by an owner which at the time was held by a disseisor adversely to such true owner. If brought by the grantee, he could show no title, because the conveyance to him would, by virtue of other rules of the law, be deemed a nullity. If brought in the name of the grantor, it might be said that he was not the real party in interest, and, under the requirements of this section, was forbidden to sue. The code was therefore amended so as to exclude the latter construction, by adding the final provision as it now stands. The purpose of this amendment is really to limit and restrict the operation and effect of the section as originally enacted, and not to create any new authority or right as between the grantor and the grantee for the use of the former's name by the latter, nor to create any new title to the land in the grantee himself.^ An express provision exists in the codes of certain States, authorizing partnerships to sue and to be sued by and in their firm-names, without making the individual members by name parties to the action. This provision is merely permissive, and not at all compulsory ; it is not a substitute for, but an addition to, the former existing methods of conducting suits. ^ 192 ; Metzger v. Attica, &c. R. R., 79 id. People v. Sherwin, 2 N. T. Sup. Ct. 528 ; 171 ; Newton v. Keech, 9 Hun, 355. See and Wood u. The Mayor, &o., 73 N. Y. also, on this subject, 1 Pomeroy's Equity, 551. §§ 258, 259, 260, 265, 266. ^ Hamilton v. Wright, 37 N. Y. 502, 1 People V. Albany & Susq. R. R., 57 507, per Woodruff J. ; Steeple i/. Down- N. Y. 161 ; People v. IngersoU, 58 N. Y. ing, 60 Ind. 478. 1 ; People v. Fields, 58 N. Y. 491. See » Whitman v. Keith, 18 Ohio St. 134. 176 CIVIL KEMEDIES. SECTION THIED. THE ASSIGNABILITY OF THINGS IN ACTION. § 144. As the immediate effect of the statutory provision in the preceding section is to enable the assignee of a thing in action to sue in his own name, the question arises and becomes very- important in this connection, What things in action are and what are not assignable ? This subject is most intimately bound up with that which immediately went before, for it is impossible to determine who is the real party in interest in all cases until it has been determined what things in action may be assigned. The topic has its legitimate place, therefore, ill a chapter which treats of parties. Although the clause, which is found in ex- actly the same words in all the State codes, — " Every action must be prosecuted in the name of the real party in interest," — allows the assignee of the thing in action to sue in his own name, yet it does not of itself affect the quality of assignability ; it does not render any such demands assignable, but leaves them as they were before its enactment under the operation of existing rules of the law. Even the clause which follows in some of the States, — " but this section shall not be deemed to authorize the assign- ment of things in action not arising out of contract," — although doubtless intended to limit the effect of the preceding general requirement, has really no practical effect. The section does not authorize the assignment of any things in action, either growing out of tort or out of contract, and it was therefore an empty legislative prohibition to say that it should not be deemed to authorize the assignment of those arising out of tort. It is not said that those things in action arising out of tort shall not be assigned, but only that the authority for such a transfer shall not be found in this particular section of a single statute. If the right to assign such demands is conferred by other statutes, or by any rules of the law independent of statute, it is not taken away by these apparently restrictive clauses. We shall there- fore find in all the States, and notwithstanding this special pro- vision, that things in action a-rising out of certain kinds and classes of torts may be assigned as freely and as fully as those springing from contracts. "WHAT THINGS IN ACTION ARE ASSIGNABLE. 177 § 145. The assignability of demands lying in action was well known prior to the codes of procedure. All contracts in the form of negotiable paper were of course transferable, so that the holder could sue upon them in courts of law in his own name. Other things in action were trulj' assignable, so that the assignee was regarded as the real owner, but on account of certain ancient technical rules of the common law, which had never been abro- gated, he was obliged to bring an action on them at law in the name of the assignor ; but if the subject was within the cogni- zance of a court of equity, he could sue in that tribunal in his own name. The effect of the codes is to extend this equity rule to legal actions. To ascertain what demands are thus transfer- able, we must recur to rules established prior to and independent of the new system which regulates procedure. There are very few statutes which expressly legislate upon the subject of assign- ability and directly confer that quality; but there are in most if not all the States special laws which indirectly produce this result. The department of jurisprudence which controls the succession to the personal estates of deceased persons is now ver}^ generally reduced, in whole or in part, to a statutory form. Among these express enactments are almost, if not quite, univer- sally found provisions which describe, define, and enumerate the kinds and classes of rights, claims, and demands which had be- longed to the decedent, and which pass to his executors or ad- ministrators as assets of the estate, and of liabilities which had rested upon the decedent, and which pass over against his per- sonal representatives, and continue to rest upon them in their representative capacity. In other words, these statutes, follow- ing a general division recognized by the ancient law, but often altering that division in its details, separate the rights, claims, demands, and liabilities which can belong to or rest upon per- sons into two classes. The rights, claims, demands, and liabilities forming the one class survive after the death of the person who held or was subject to them, and pass to his executors and ad- ministrators as either assets of or as claims against the estate in their hands ; those of the other class cease with the deetth of the person who held or was subject to them, and do not pass to his representatives as assets or liabilities, — which last rule, as it anciently existed, was expressed by the maxim, actio personalis moritur cum persona. 12 178 CIVIL REMEDIES. § 146. Since the title of an executor or administrator is re- garded by our law as a title by assignment, it was very natural that the courts should consider these statutes as furnishing the criterion by which to determine what things in action are assign- able and what are not assignable between living parties. In this manner the statutes referred to have indirectly produced the re- sult as before mentioned. Following the analogies furnished by them, the rule is generally established that whatever things in action will survive and pass to the personal representatives of a decedent as assets of or liabilities against an estate, are assign- able by the direct act of parties, while those things in action which will not thus survive and pass to the personal representa- tives of a decedent are not assignable. This general principle will be developed, and the authorities sustaining it will be quoted, in the succeeding paragraphs. In some States there may be stat- utes expressly dealing with the subject of assignment inter vivos. Thus, the peculiar legislation of Kentucky has already been no- ticed, which in terms authorizes the assignment of negotiable paper, bonds, and all contracts for money or property ; and the judicial construction of the enactment has also been described, which holds that all assignments made in accordance with the provision are legal, so that the assignee may sue alone, but that all others are equitable, so that while the assignee must bring the action because he is the real party in interest, the assignor must also be joined as a party either plaintiff or defendant. I shall now proceed to inquire how far the principle thus announced is sustained by judicial authority, and shall illustrate its opera- tion by an examination of the particular cases in which a thing in action has been held assignable or not assignable. § 147. First : What things in action are assignable. It is fully established by a complete unanimity in the decisions, that causes of action which survive and pass to the personal representatives of a decedent as assets, or continue as liabilities against such representatives, are in general assignable, while those causes of action which do not thus survive are not assignable. By the common law, causes of action arising out of contract, unless the contract, being still executory, was purely personal to the dece- dent, or unless the injury resulting from its breach consisted entirely of personal suffering, bodily or mental, of the decedent, did thus survive ; while causes of action arising out of torts did WHAT THINGS IN ACTION ARE ASSIGNABLE. 179 not in general survive. The statutes in most if not all the States have changed this ancient rule, and have greatly enlarged the class of things in action which survive. It is now the general American doctrine that all causes of action arising from torts to property, real or personal, — injuries to the estate, by which its value is diminished, — do survive and go to the executor or admin- istrator as assets in his hands. Asa consequence, such things in action, although based upon a tort, are assignable. ^ The criterion, 1 Tlie following resume of authorities will sliow t'he universality of this rule, and tlie reasons upon which it is based. Hoyt V. Tliompson, 5 N. Y. 320, 347, per Selden J. ; " All choses in action, em- bracing demands which are considered as matters of property or estate, are now assignable either at law or in equity. Nothing is excluded except mere per- sonal torts which die with the party. A claim, therefore, for property fraudu- lently or tortiously taken or received, or wrongfully withheld, and even for an in- jury to real or personal property, may be assigned ; " citing People v. Tioga County, 19 Wend. 73. Haight v. Hayt, 19 N. Y. 464, 467, per Grover J. " The rule of the common law was, that actions for torts die with the person, and could not be maintained by the personal represent- atives of the injured party, or against those of the wrong-doer. The statute has changed the law so far as property or relative rights are affected by the wrongful act. The E. S. of N. Y. (v. 2, p. 448, § 1) provide that, 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 in- jured, or, after his death, by his executors or administrators, in the same manner and with like effect in all respects as ac- tions founded upon contracts. Section 2 provides that the preceding section shall not extend to actions for slander or libel, or to actions for assault and battery, £r false imprisonment, nor to actions on the case for personal injuries to the plaintiff, or to the person of the testator or intestate of any executor or administrator. The exceptions contained in § 2 manifest the intention of the legislature, that all other actions founded upon tort should sur- vive." Byxbie v. Wood, 24 N. Y. 607, 611, per Gould J. "But, conceding that a tort is one of tlie elements that go to make up this cause of action, it will be found to be assignable. It will be seen to be of that class of torts tlie right of action for which would survive to the personal representatives of the claimant, and the power to assign and to transmit to personal representatives are convertible propositions." Graves v. Spier, 58 Barb. 349, 386, per Johnson J. " All the cases agree that it [the cause of action] is assignable, if the cause of action survives and may be main- tained by oragainst the personal represent- atives of tiie parties to the transaction. We liave seen tliat a cause of action like the one before us does so survive." But- ler V. N. Y. & Erie R. R., 22 Barb. 110, 112, 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 in- jury to the person, personal feelings, or character, the right of action can be bought and sold. Such a right of ac- tion upon the death, bankruptcy, or in- solvency of the party injured passes to the executor or assignee as a part of his assets, because it affects his estate, and not his personal rights. . . . Mere per- sonal torts which die with the person, such as slander, assault and battery, false imprisonment, seduction, and the like, are not assignable ; but torts for taking and converting personal property, or for in- jury to personal property, and it seems, generally, all such rights of action for a tort as would survive to the personal rep- resentative of the party, may be assigned so as to pass an interest 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 180 CIVIL REMEDIES. therefore, by which to judge of the assignability of things in action, is to ascertain whether the demand survives upon the decease of the party, or dies with him. If all things in action are separated into two classes by this line of division, those em- braced in the first class are assignable, and. those which fall into law." Zatriskie v. Smith, 13 N. Y. 322, 833, per Denio J. " The maxim of the cohimon law is, 'actio personalis moritur cum persona.' This principle was not originally applied to causes of action growing out of the breach of a contract. They were parcel of the personal estate in reference to which tlie administrator or executor represents the person of the deceased, and is in law his assignee. But, as to this class of rights of action, late cases liave somewhat qualified the rule : and it is now well settled that an executor or administrator cannot maintain an ac- tion upon an express or implied promise to the deceased, when the damage con- sists entirely of the personal sufferings of the deceased, whether mental or corpo- real. Action for tlie breach of a promise of marriage, for unskilfulness of medical practitioners contrary to their implied un- dertaking, tlie imprisonment of a party on account of the neglect of liis attorney to perform his professional engagements, fall under this head, being considered as virtually actions for injuries to the per- son. (Chamberlain v. Williamson, 2 M. & S. 408). . . But all actions ex delicto were governed by the maxim," until stat- utes temp. Edw. III. allowed executors and administrators to bring trespass de bonis asportdlis when the taking was in the life- time of the deceased. " These statutes liave been greatly extended by an equi- table construction( WiUiams on Executors, Vol. 1, p. 670) ; but I do not find that an ac- tion on the case for a deceit has ever been considered as within the purview of these statutes. ... If it be true that the exec- utors and administrators are the testa- tor's assignees, it is fair to assume that they take whatever of a personal nature tlie deceased had which was capable of assignment ; and thus the power to as- sign and to transmit to personal represent- atiyes are convertible propositions. . . Any interest to which tlie personal rep- resentatives of a decedent would not succeed is not the subject of an assign- ment inter vivos." Although the principle laid down by the learned judge in this opinion was correct, yet it is evident that he entirely overlooked the New York stat- ute, which defines the causes of action which survive. Judge Denio's oversight of this statute is pointed out in subse- quent cases in the same court. Weire v. Pavenport, 11 Iowa, 49, 52, per Wright J. " It is contended that the liability of the city was for a tort, and that this could not be assigned. This was true at the common law, so far at least that the right of action for such an injury could not be transferred. What change the code has made in this respect we need not stop to inquire, for the reason that we entertain no doubt that such a liability may be sold and transferred. It may be sold just as a horse or any other property may be, and the title passes as completely. . . . The code has not narrowed the assigna- bility of claims. Whatever could be as- signed before may be still, and some claims are made assignable which before were not." Tyson v. McGuineas, 25 Wis. 656, per Cole J. " It would seem generally that all such rights of action for torts as would survive to the personal representa- tives may be assigned so as to pass an in- terest to the assignee which he can now assert in his own name." As further illustrations, Devlin ia The Mayor, &c. 63 N. Y. 8, 14-20 (a contract for cleaning streets) ; Wheelockw. Lee,64Id.242 (right of borrower to recover back usurious in- terest paid ) ; McKeage v. Hanover F. Ins. Co., 81 Id. 38 (right of action for conver- sion of a chattel) ; Blair v. Hamilton, 48 Ind. 32 (contract for sale of a chattel) ; Jackson i). Daggett, 24 Hun, 204 (cause of action against a sheriff for failure to re- turn an execution and for a false return); Bond V. Smith, 4 Hun, 48 (cause of action for fraudulent representations) ; Chap- man V. Plummer, 36 Wis. 262 (claim for rent by a verbal assignment). WHAT THINGS IN ACTION ARE ASSIGNABLE. 181 the second are not. In the first class are all claims arising from the breach of contracts, with certain well-defined exceptions, and those arising from torts directly to real or personal property, and frauds, deceits, and other wrongs by which an estate, real or per- sonal, is injured, diminished, or damaged. In the second class are all torts to the person or character when the injury and dam- age are confined to the body or the feelings, and those contracts, generally, though not always, implied, the breach of which pro- duces only direct injury and damage, bodily or mental, to the person ; and contracts, so long as they are executory, which stipulate solely for the special personal services, knowledge, and skill of a contracting party. Among the instances of the first of these two classes are the breach of a promise of marriage, injuries done by the want of skill of a medical practitioner contrary to his implied undertaking, and the like.^ In most of these cases, and probably all except the promise of marriage, the wrong-doer might, under the old practice, have been sued in an action on the case for a neglect of his duty, as well as an assumpsit for a breach of his implied undertaking ; and it is thus plain that this excep- tion to the general doctrine under consideration is more apparent than real, for it rests entirely upon the fiction of regarding a cer- tain transaction as a contract, when in fact no contract of the sort supposed was made. § 148. As a result of these general principles it is fully estab- lished that a right of action to recover damages for the wrongful taking and carrying away, or the wrongful conversion of per- sonal property, is assignable.^ In the same manner a demand for compensation arising from injuries to land, whether done directly and with force, or the result of negligence, may be assigned;^ also demands arising from injuries to personal property, either in 1 Zabriskie v. Smith, 13 N. Y. 333, per Cal. 139 ; Tyson v. McGuineas, 25 Wis. Denio J. ; Chamberlain v. Williaitison, 2 656. M. & S. 408 ; Meech v. Stoner, 19 N. Y. 3 Hall v. Cincinnati, &c. R. R., 1 29, per Comstock J. ; Wade w. Kalbfleiseh, Disney, 58; Weire i^. Davenport, 11 58 N. Y. 282. Iowa, 49 ; More v. Massini, 32 Cal. 590 ; "McKee v. Judd, 12 N. Y. 622; Haight v. Green, 19 Cal. 113. In these Sherman v. Elder, 24 N. Y. 381 ; Hawke cases the decision was put expressly upon V. Thome, 54 Barb. 164 ; Richtmeyer v. the ground that claims of the kind In Remsen, 38 N. Y. 206; Grocers' Nat. question having been, by statutes of the Bank v. Clark, 48 Barb. 26 (a claim for respective States, made to survive, they the fraudulent misapplication of funds were therefore assignable. A claim of by an officer of a bank); Smith k. Ken- damages for wnste against a tenant, nett, 18 Mo. 154 ; Lazard v. Wheeler, 22 Rutherford u. Aiken, 3 N. Y. Sup. Ct. 60. 182 CIVIL EEMEDIES. the form of trespasses with violence or of w^rongs done through negligence and want of skill, — as, for example, a claim against a railroad company for carelessly running over and killing cattle by means of its trains.^ An illustration of the rights of action for negligent injuries to land which are assignable, is that resulting from the setting on fire and burning up of grass, hay, and fences by coals carelessly dropped from passing engines.^ Falling under the same principle is the case of a claim against a common carrier for a breach of his contract or duty in failing to deliver the goods at all, or in injuring them while on the transit. This is a very plain case, for at the common law the injured party might sue in assumpsit upon the carrier's promise express or implied, or in case upon his general duty.^ The same is true of a demand in favor of a guest against an innkeeper, and, in fact, in favor of any bailor against his bailee for a breach of the latter's duty whereby the property bailed is lost, destroyed, or injured.* § 149. The following are additional instances of assignable rights of action arising from injuries done to property through the negligence or unskilfulness of the wrong-doer ; against a per- son who had contracted with the State to keep a navigable canal in repair for an injury done to a boat by means of an obstruction carelessly suffered to remain in the water-way ; ^ against a sheriff for neglecting to arrest a defendant upon a body execution issued to him ; ^ against a bank for neglecting to make a proper demand of payment of a note left with it for collection, and to take other steps necessary to charge the indorsers, whereby through the in- solvency of the maker the debt was lost.'' Even the claim, under the statute, of a next of kin, for damages caused by the wrong- ful killing a person, is assignable ; the statute makes the demand assets of the estate so far as the distributees are concerned, al- though not generally, and it is thus, by virtue of the statute, a property and not a mere personal right.^ 1 Butler V. N. Y. & Erie R. R., 22 6 Fulton Fire Ins. Co. v. Baldwin, 37 Barb. 110. See Mc Arthur ;;. Green Bay, N. Y. 648. &(;. Canal Co., 34 Wis. 139, 152, 153, per « Dininny v. Fay, 38 Barb. 18. The Lyon J. demand was held assignable because the 2 Fried u. N. Y. Cent. K. E., 25 How. wrong was- done to the property rights or Pr. R. 285. interests of the assignor, and the cause of 8 Waldron v. Willard, 17 N. Y. 466, in action would survive. It was such a which the original owner simply assigned wrong, because taking the body of the " all his interest in the goods." Merrill debtor in execution is a satisfaction of 0. Grinnell, 30 N. Y. 594. the judgment. * Stanton v. Leland, 4 E. D. Smith, ^ Ayrault v. Pacific Bank, 6 Robt. 337. 88 ; Merrick v. Brainard, 38 Barb. 574. 8 Quin v. Moore, 15 N. Y. 432. WHAT THINGS IN ACTION AEE ASSIGNABLE. 183 § 150. The same doctrine is applied to claims growing out of fraud and false representations, if the deceit is practised in some transaction relating to the buying, selling, or other dealing with real or personal property, or if it be made in a contract by which real or personal property is to be acquired or transferred, or if it be the basis of or inducement to any act which results in a change of right relating to property. Of course, any fraud or false rep- resentation which merely affected personal relations, or was the basis or occasion of any change in purely personal status or con- dition, independent of and not connected with property, would not give rise to a cause of action which survives and is assignable. In accordance with the rule thus stated, a demand for damages arising from false representations, or from fraud of any kind, in the sale and purchase of land, would survive and may be assigned ; and the same is true in respect to a sale of goods. ^ And a claim to recover money or other personal property which the defendant had obtained or procured to be transferred to him by fraud is assignable.^ The right of action given by statute to recover back money lost in gaming is assignable ; ^ and also a judgment rendered of damages for the commission of any tort whatsoever ; for, although the tort itself may have been purely personal, it is completely merged in the judgment which is, by a very ancient conception of the law still left existing, regarded as " a contract of record." * § 151. The following are examples of demands arising out of some special forms of contracts, and of special rights and interests analogous to, if not technically, things in action, which have been held assignable. In reference to the contracts specified, the only possible doubt which could be suggested was, whether they did not fall within the class of agreements purely personal in their nature, the right of action arising from which does not survive. A contract entered into by a private person with the prison au- 1 Haight V. Hayt, 19 N. Y. 464; the provision of the N. Y. B. S. (Vol. 2, Graves t>. Spier, 58 Barb. 349; Johnston p. 447, §§ 1, 2,] which determines what V. Bennett, 5 Abb. Pr. (v. s.) 331 ; Wood- rights of action survive and what do not. bury V. Deloss, 65 Barb. 501. » Meech v. Stoner, 19 N. Y. 26; Mc- 2 Byxbie v. Wood, 24 N. Y. 607, 609 ; Dougall v. Walling, 48 Barb. 364; Hen- Grocers' Nat. Bank v. Clark, 48 Barb. 26. drickson v. Beers, 6 Bosw. 639. Contra, In the first of these cases, Zabriskie v. Weyburn v. White, 22 Barb. 82, which is Smith, 13 N. Y. 322, was distinguished, overruled by the later cases. and the correctness of the decision was * Charles v. Haskins, 11 Iowa, 329. questioned because the court overlooked 184 CIVIL KEMEDIES. thorities of the State, for the hiring of the services of a stipulated number of convicts at a particular State prison, to be employed in a certain occupation, was held assignable by the New York Court of Appeals. The agreement was not a stipulation for the personal services of the contractor, nor was he in a position of any public or personal trust or confidence, and the State officials having no claim upon his individual acts in preference to those of another, his interest could be transferred. ^ A contract of guar- anty may be assigned ; ^ and the right to a trademark ; ^ a widow's right to dower before admeasurement ; * the claim of a righful officer against an intruder for the fees of the office received by the latter during the period of his occupancy ; ^ a sheriff's demand against an attorney for his fees in executing process ; ^ bonds taken by sheriffs and other officers in the progress of an action for the protection of a party thereto.'^ An assignment of demands in ex- pectancy is valid in equity as an . agreement, and becomes an absolute transfer as soon as the demands arise and come into existence in favor of the assignor ; and the assignment of part of a demand of which notice is given to the debtor is also good in equity, so that when separate portions are thus assigned to dif- ferent persons, each assignee may maintain an action to recover the part transferred to him.^ § 152. Second : What things in action are not assignable. The general principle which determines what claims, demands, and rights of action are not assignable, has been already fully stated in the text and in the quotations placed in the notes, and need not be repeated. It is simply necessary to ascertain, and the sole ' Horner v. Wood, 23 N. Y. 350. had been paid, and the plaintiff notified 2 Small V. Sloan, 1 Bosw. 852. the city of the transfer. Bull proceeded 3 Lockwood V. Bostwick, 2 Daly, 521. with his work, and amounts became due * Strong V. Clem, 12 Ind. 37. to him, which satisfied the two prior as- 6 Piatt V. Stout, 14 Abb. Pr. 178. signments, and were more than enough •5 Birbeck v. StaflTord, 14 Abb. Pr. 285. to satisfy the plaintiff's demand. The ' Moorman v. Collier, 32 Iowa, 138. Court of Appeals held in accordance 8 Keld V. The Mayor, &c., of New with the rules stated in the text, and York, 6 N. Y. 179. This action was com- also that payment by the debtor — the menced in equity before the code. One city — to the original creditor, — Bull, — Bull had various contracts with the City after notice of the assignment, is no de- of New York for printing, and was en- fence to an action by the assignee. Al- gaged in their performance by printing though this suit, commenced under the for the city. He assigned to 6., and G. to old system, was in equity, the doctrine the plaintiff, whatever might become due recognized by it must be applicable to a thereontotheamountof $1,500, after two civil action under the code. See Bliss ». certain other prior similar assignments Lawrence, 58 N. Y. 442. WHAT THINGS IN ACTION ARE NOT ASSIGNABLE. 185 practical difficulty consists in ascertaining, what particular torts are injuries, bodily or mental, to the person only, or to the rep- utation, and what particular contracts are purelj'' personal, so that the right to enforce them, or the liability springing from them, does not survive after the death of a contracting party.' The following cases are given as illustrations of such wrongs and of such contracts. A cause of action for injuries to the person caused by negligence is not assignable, even though the injured party has an election whether to base his demand npon the tort or to sue upon a contract express or implied ; for example, a right of action against a I'aihoad corporation for injuries caused by negligence to the person of a passenger. If the right is re- garded as arising from a breach of the contract to carry safely, such contract itself falls within the class mentioned above, since its violation causes mere bodily or mental injuries to the person, and not in any manner to property. The quality of assignabilitj' cannot be impressed upon a demand by changing the theory of the action brought upon it.^ A verdict rendered in an action for a personal tort is not assignable ; the verdict does not change the nature of the right ; it liquidates the amount of the damages, but there is no debt or claim which can pass by assignment until a judgment is recovered.^ It was decided by the New York Court of Appeals, in a well-considered case, that a claim of damages for falsely and fraudulently representing a person to be solvent, by which the party to whom the representations were made was induced to sell goods to such person on credit, and thereby lost the same or their price, was not assignable. This case was dis- tinguished from that in which the wrong-doer by false statements procures goods to be sold to himself on credit, and it was said that the gist of the action was a pure deceit, a tort to the person, and not an injury to property rights.* Although Zabriskie v. 1 A non-negotiable note, payable in consequence. The cause of action was work and labor, is assignable. Sohniery. held to be for a mere personal tort, while Fay, 12 Kans. 184 ; Williams v. Norton, the other averments were of special dam- 3 Kans. 295. ages. Noonan v. Orton, 34 Wis. 269. 2 Purple V. Hudson River R. R., 4 » Brooks i,'. Hanford, 15 Abb. Pr. 342; Duer, 74 ; s. c, 1 Abb. Pr. 33 ; Hodg- Crouch v. Gridley, 6 Hill, 250 ; Kellogg man v. Western R. R., 7 How. Pr. 492. v. Schuyler, 2 Denio, 73 ; Lawrence u. A claim for damages resulting from a Martin^ 22 Cal. 173 (verdict in an action malicious prosecution and abuse of legal for malicious prosecution). process was held not assignable, although * Zabriskie v. Smith, 13 N. Y. 322; the complaint alleged injury to the assign- Hyslop v. Randall, 4 Duer, 660 (S. T.). or's business and loss of property as a 186 CIVIL REMEDIES. Smith has not been expressly overruled, its reasoning has been disapproved, and it is at least very much shaken. It is conceded that the court, in rendering its judgment, overlooked a section of the statute which virtually enumerates the classes of demands arising from torts which cannot be assigned, and which enumera- tion does not include the demand in question. As the cases decided subsequently are quite inconsistent with the conclusion reached in this case, it may be regarded as substantially over- ruled ; and, applying the doctrine of those authorities, it would seem that the right of action for such a deceit is assignable.^ § 153. It has been held in one or two instances that a demand against a common carrier for the loss of goods entrusted to him was not assignable ;^ nor the cause of action given by statute to recover back money lost in gaming ; ^ but these decisions are clearly wrong, and have been many times overruled, as is seen by authorities cited in former paragraphs. A wife's inchoate right of dower is not the subject of grant or of assignment.* The fol- lowing are illustrations of personal interests or rights which can- not be assigned : the right given to the debtor by statute to have 1 In Haight v. Hayt, 19 N. Y. 464, 467, Grover J., after quoting the N. Y. R. S. v. 2, p. 438, §§ 1 and 2, — the first of which sections declares that demands arising from torts to property riglits shall survive, and the second of which provides that the first shall not extend to " actions for slander, for libel, or to actions for assault and battery or false imprisonment, nor to actions on the case for injuries to the per- son of the plaintiff or to the person of the testator or intestate," — adds : " The exceptions contained in the second sec- tion manifest the intention of the legisla- ture that all other actions founded upon tort should survive." And Judge Denio, who had himself delivered the opinion in Zabriskie v. Smith, said in this same case, in reference to these sections of the stat- ute : " The exception in § 2 shows, if there was otherwise any doubt, that the prior section was intended to embrace the case." This reasoning and these statutory pro- visions are entirely inconsistent with the decision made in Zabriskie v. Smith. Again, in Byxbie u. Wood, 24 N. Y. 610, Gould J. speaking of tlie same case, after commenting upon it and distinguishing it from the one before the court, remarked : " As to that decision, it may be advisable to see how fully it accords with the B. S. vol. 2, p. 447, §§ 1 and 2." Finally, in Johnston v. Bennett, 5 Abb. Pr. (n. s.) 331, 332, Jones J. said : " When Zabriskie 0. Smith was decided, these provisions of the statute (§§ 1, 2, supra) do not appear to have been called to the attention of the learnedjudge wlio delivered the opinion." On the other hand, in Graves v. Spier, 58 Barb. 349, Mr. Justice Johnson in his elaborate opinion seems to recognize Za- briskie V. Smith as good law ; at least he carefully discriminates it from the one then under consideration, points out the differences, and does not suggest a doubt as to its correctness. See also Price v. Pride, 75 N. Y. 244 (a cause of action from fraud) ; Bank of California u. Col- lins, 5 Hun, 209 (statutory claim against corporation trustees) ; Barry v. Equitable Life Ins. Soc, 59 N. Y. 587 (policy of in- surance on husband for benefit of wife cannot be assigned during husband's life- time." 2 Thurman v. Welles, 18 Barb. 500. 3 Weyburn v. White, 22 Barb. 82. * Moore V. Mayor, &c. of New York, 8 N. Y. 110, per Gardiner J. THE ASSIGNMENT SUBJECT TO DEFENCES. 187 bills, notes, and other securities avoided or cancelled on. the ground of usury ; ^ the right held by a covenantee to set aside, on account of fraud, a release which he had given of -a .covenant in his favor ; ^ the right of a grantor to avoid his conveyance on the ground of fraud ; ^ and the vendor's right of lien on land sold, for the purchase price thereof.* SECTION FOURTH. THE EFFECT OF AN ASSIGNMENT OF A THING IN ACTION UPON THE DEFENCES THERETO. § 154. The statutory provision found in the various State codes which relates to the subject-matter of this section is the following : " In the case of an assignment of a thing in action, the action of the assignee shall be without prejudice to any set-off or other defence existing at the time of or before notice of the assign- ment ; but this section shall not apply to [negotiable bonds, Ohio, Kansas, Nebraska'] negotiable promissory notes and bills of exchange, transferred in good faith and upon gfeod consideration, before due." ^ In Ohio, Kansas, Nebraska, and Washington, the phraseology is slightly different. It reads : " The action of the assignee shall be without prejudice to any set-off or other defence now allowed."® The consideration of the topics em- braced in this provision should, in a strictly scientific method, form a part of the general subject of Defences, and might prop- erly be postponed until this portion of the work is reached ; but I have chosen to pursue the order of the codes themselves, which is the same in all the States, rather than to adopt one more theo- retically correct, yet perhaps not more practically advantageous. § 155. It is important that the defences which this clause admits should be carefully distinguished from the counter-claim 1 BuUard v. Kaynor, 30 N. Y. 197; consin, ch. 122, §13; Indiana, §6; Florida, Bougliton V. Smith, 26 Barb. 635. § 63 ; Kentucky, § 31 ; Soutli Carolina, 2 Milwaukee & Minn. R. R. v. Milwau- § 135 ; Oregon, §§ 28, 382 ; Nevada, § 5 ; kee & West. R. R., 20 Wis. 174. Dacota, § 65 ; Iowa, § 2546 (slightly 8 Smith V. Harris, 43 Mo. 557. altered) ; North Carolina, § 55 ; Idaho, 4 Baumu.Grigsby, 21 Cal. 172; Lewis § 5; Montana, § 5; Wasliington, § 3; V. Covillaud, 21 Cal. 178; Williams v. Wyoming, §33; Arizona, § 5. Young, 21 Cal. 227. e Qhio, § 26 ; Kansas, § 27 ; Nebraska, 6 New York, § 112 (502, 1909, 1910) ; § 29; Washington, § 3, sliglitly varied. Minnesota, § 27 ; California, § 368 ; Wis- 188 CIVIL REMEDIES. subsequently provided for by the statute. This section speaks of defences which, as they ask no affirmative relief, and simply prevent the plaintiff from succeeding, may be made available against an assignee as well as against the original creditor. The counter-claim is more than a defence : it assumes a right of action against and demands a recovery of affirmative relief from the plaintiff in the suit, and is, therefore, impossible as against an assignee suing, if it existed against the assignor. The proposi- tion here stated is very simple and plain, and yet the defences permitted against the assignee by this section have been some- times confounded with counter-claims, and that even by judges and courts. § 156. The section quoted above, and which is substantially the same in all the States, does not change the then existing law as to defences under the circumstances mentioned in it. It was not intended to alter the substantial rights of the parties, but only to introduce such modifications into the modes of protecting them as were rendered necessary by the provisions of the pre- ceding section requiring the real party in interest in most cases to be the plaintiff. Taking the two sections together, the plain interpretation of them is : The assignee of a thing in action must sue upon it in his own name, but this change in the practice shall not work any alteration of the actual rights of the parties ; the defendants are still entitled to the same defences against the assignee who sues, which they would have had if the former rule had continued to prevail, and the action had been brought in the name of the assignor, but to no other or different defences. In other words, the section must be interpreted as though it read as follows : " In the case of the assignment of a thing in action, the action of the assignee shall be without prejudice to any set- off or other defence [now allowed or] existing at the time of or before notice of the assignment, which would have been avail- able to the defendant had the action been brought in the name of the assignor." This construction is now firmly and universally established.^ § 157. As the pre-existing rule is thus re-affirmed, a full dis- cussion of the statutory provision requires an examination and statement of that rule itself. In the first place, the general » Beckwith v. Union Bank, 9 N. Y. 211, 212, per Johnson J. ; Myers v. Davis, 22 N. Y. 489, 490, per Denio J. EQUITIES BETWEEN ASSIGNOR AND ASSIGNEE. 189 doctrine is elementary that the purchaser of any thing in action, not negotiable, takes the interest purchased subject to all the d'efences legal and equitable of the debtor who issued the obliga- tion or security. That is, when the original debtor, the obligor on the bond, or the promisor, in whatever form his promise is made, if it is not negotiable, is sued by the assignee, the defences legal and equitable which he had at. the time of the assignment," or at the time when notice of it was given, against the original creditor, avail to him against the substituted creditor.^ This doc- trine has been applied to all kinds of defences as well to set-off, and to all forms of contract not negotiable : as, for example, in an action on a bond and mortgage bj' the assignee, the defence that the bond and the mortgage collateral thereto were given on consideration that the obligee should perform certain covenants contained in an agreement between the parties, which was set out, and that he had. wholly failed to perform the same, was held good ; 2 in an action brought on a warehouseman's receipt, the same being held not negotiable ;^ in an action by an assignee for the benefit of creditors ; * and in an action to compel a specific performance, brought by the assignee of the vendee, under a con- tract for the sale of lands, although the vendee was in posses- sion.^ § 158. The doctrine is not confined, however, in its operation to the case of the debtor — the promisor in the thing in action — setting up a defence to an action brought by an assignee upon the demand itself to enforce the collection or performance thereof; it applies also to the second and subsequent assignees of a non- negotiable thing in action, although transferred to the purchaser and holder for full value, and without notice, if there were equi- ties subsisting between the original assignor and his immediate 1 Ingraham v. Disbrough, 47 N. Y. 421 ; the notice." Commercial Bank v. Colt, 15 Andrews y. Gillespie, 47 N. Y. 487 ; Bush Barb. 506; Ainslie v. Boynton, 2 Barb. V. Lathrop, 22 N. Y. 535, 538, per Denio 258; Wood v. Perry, 1 Barb. 114; West- J. ; Blydenburgh v. Thayer, 3 Keyes, ern Bank v. Sherwood, 29 Barb. 383 ; 293 ; Callanan v. Edwards, 32 N. Y. 483, Reeves v. Kimball, 40 N. Y. 299. 486, per Wright J., who thus states tlie ^ Western Bank v. Sherwood, 29 Barb, rule: "An assignee of a chose in action 383. not negotiable takes the thing assigned, ^ Commercial Bank v. Colt, 15 Barb, subject to all the rights which the debtor 506. had acquired in respect thereto prior to * Maas v. Goodman, 2 Hilt. 275 ; Ma- the assignment, or to the time notice was rine Bank v. Jauncey, 1 Barb. 486. given of it, when there is an interval be- * Reeves v. Kicaball, 40 N. Y. 299. tween the execution of the transfer and 190 CnriL REMEDIES. assignee in favor of the former. If the owner and holder of a thing in action not negotiable transfers it to an assignee upon condition, or subject to any reservations or claims in favor of the transferrer, although the instrument of assignment be absolute on its face, this immediate assignee, holding in it a qualified and limited property and interest, cannot convey a greater property and interest than he himself .holds ; and if he assumes to convey it to a second assignee by a transfer absolute in form, and for a full consideration, and vs^ithout any notice on the part of such purchaser of a defect in the title, this second assignee neverthe- less takes it subject to all the equities, claims, and rights of the original owner and first assignor. The doctrine of so-called " latent equities," which has received some judicial support, — that is, the doctrine that the equities of the original assignor, under the circumstances thus stated, are latent and cannot pre- vail against the title of the second assignee, — is unsound ; it is an attempt to extend the peculiar qualities of negotiable paper to things in action not negotiable, and destroys the fundamental distinction betv7een the two classes of negotiable and non-nego- tiable demands.^ § 159. A few illustrations of this rule will serve to show its true meaning, and the extent of its application. The holder of a bond and mortgage for $1,400 assigned and delivered them to secure an indebtedness of $270, the assignee giving back a written undertaking to return the same upon being paid that amount. This assignee afterwards transferred the securities to a second, and he to a third assignee, the latter paying full value, and having no notice of any outstanding claims or defects in the title. The original owner tendered to this assignee the |270 and interest thereon, and demanded a return of the bond and mort- gage. Upon refusal he brought an action to compel such return ', 1 Bush V. Lathrop, 22 N. Y. 535 ; An- v. Equitable Life Ins. Soc, 59 id. 587 ; derson v. Nicholas, 28 N. Y. 600, approved Green v. Warwiclc, 64 id. 220 ; Loorais v. by Woodruflf J. in Reeves v. Kimball, 40 Euck, 56 id. 620 ; Davis o. Bechstein, 69 N. Y. 311 ; Mason v. Lord, 40 N. Y, 476, id. 440, 442 ; Matthews v. Sheehan, 69 id. 487, per Daniels J. ; Williams v. Tliorn, 585 ; Cutts v. Guild, 57 id. 229, 232, 233 ; 11 Paige, 459; McNeil v. Tenth Nat. Eeid u. Sprague, 72 id. 457, 462 ; Crane f. Bank, 55 Barb. 59, 68 ; Schafer v. Eeilly, Turner, 67 id. 437, 440 ; Combes v. Chand- 50 N. Y. 67; Mangles u. Dixon, 3 H. of ler, 33 Ohio St! 178, 181-185; Farmers' L. Gas. 702. See also on the subject Nat. Bk. v. Fletcher, 44 Iowa, 252 ; and discussed in this and the succeeding see in Pomeroy's Equity. §§ 707-715, paragraphs. Trustees of Union Coll. v. where this subject is fully discussed. Wheeler, 61 N. Y. 88, 104, 112 ; Barry EQUITIES BETWEEN ASSIGNOR AND ASSIGNEE. 191 and it was held by the New York Court of Appeals, after a most exhaustive discussion, that he should recover.^ Certificates of stock being wrongfully taken from the owner and sold to the de- fendant, it was held that the latter acquired no better or higher title than that held by his immediate transferrer, — the one who wrongfully converted the stock, — and that the original owner could recover the value of the securities with interest ; but the decision was partly placed upon the special circumstances of the transfer, which deprived the defendant of the character and position of a bona fide purchaser.^ The lessee of premises assigned the lease by an instrument valid on the face, but the transfer was in fact given as security for an usurious loan made to him by the assignee. This lease was afterwards transferred by the assignee, passed through divers hands, and was finally purchased by the defend- ant, who knew that the first transfer was intended as a security for a loan, but who had no knowledge nor notice of the usurious taint which affected the loan, and who paid full value as the con- sideration of the transfer to himself. Subsequent to the original assignment by the lessee, but before the transfer to the defendant. 1 Bush V. Lathrop, 22 N. T. 535. The opinion of Denio J. is a most able review of all the authorities which seem to sus- tain the doctrine that certain so-called " latmt equities " are not protected against an assignment. He shows that all the expressions of judicial opinion to that effect are obiter dicta, while a large num- ber of direct decisions necessarily involv- ing the question are opposed to the doc- trine. I would add that the course of adjudications in reference to the sale of goods and chattels by conditional vendees who have been put in possession, and wlio have been held unable to transfer an absolute title to bona fide purcliasers for value, fully supports thereasoning and con- clusions of Judge Denio. There is no pos- sible ground of valid distinction between the transfer of a thing in action when the transferrer appears to be clothed with the complete ownership, but is actually not, and the transfer of a chattel by a person similarly situated and having all the outward indicia of perfect title. See Ballard v. Burgett, 40 N. Y. 314, and the cases cited. 2 Anderson u. Nicholas, 28 N. Y. 600. On account of the peculiar facts referred to in the text, which prevented the de- fendant from relying upon the defence of bona fides, this case cannot be regarded as a direct authority for the doctrine of the text. One of the j udges — Davies J. — bases his judgment entirely upon the ground that the assignee could under no circumstances acquire a better title to a non-negotiable thing in action than that possessed by his immediate assignor, and made no allusion to the defendant's want of good faith. Another — Denio J. — dwelt upon the facts which showed the bad faith, but was, at the same time, very careful to protest against any inference from his course of argument to the effect that, if the purchase had been in good faith, the assignee would have been pro- tected. The third judge who delivered an opinion — Hogeboom J. — seems to have adopted the view of the case taken by Davies J. On the whole, although the fiict of bad faith was an element in the decision, the doctrine laid down applies to all cases of transfer, those in good faith as well as those in bad faith. 192 CIVIL EEMEDIES. the plaintiffs recovered a judgment against such lessee, which was regularly entered and docketed, and the lessee's interest in the premises leased and in the lease itself was sold on execution, bought in by the plaintiffs, and a sheriff's deed of such interest was delivered to them, which deed, however, was executed after the assignment to the defendant. The plaintiffs thereupon com- menced an action to recover possession of the leased premises, and to avoid the transfer of the lease to the defendant on account of the usury which affected and nullified the first assignment made by the lessee to his immediate assignee. The New York Court of Appeals, following the doctrine of the decisions quoted above, held that the action could be maintained ; that the lessee might have set aside the transfer from himself on account of the usury which tainted it ; that the subsequent assignees, including the defendant, succeeded to all the rights, and were subjected to all the disabilities, possessed by and imposed upon the person who transferred the security to them, — the first assignee ; and, finally, that the judgment creditors of the lessee were clothed with his rights and powers in the matter.^ § 160. The principle thus settled, and the cases which support it, are entirely consistent with another doctrine that has latelj' been approved and established by the same distinguished court, namely, the doctrine of estoppel as applied to the transfer of cer- tain species of things in action which, in the customary practice of business men, have acquired a quasi negotiable character. The doctrine as thus invoked by the court, may be stated as follows : The owner of certain kinds of things in action not technically negotiable, but which, in the course of business cus- toms, have acquired a semi-negotiable character as a matter of fact, may assign or part with them for a special purpose, and at the same time may clothe the assignee or person to whom they have been delivered with such apparent indicia of title, and in- struments of complete ownership over them, and power to dispose of them,' as to estop himself 'from setting up against a second 1 Mason v. Lord, 40 N. Y. 476, 487. Bush o. Lathrop is reaffirmed, and its The doctrine is directly sustained in the principle pronounced to be "well settled." following more recent cases : Schafer v. The result of these authorities is to limit Eeilly, 50 N. Y. 61, 67 ; Reeves v. Kim- the decision , in Moore u. Metropolitan ball, 40 N. Y. 299 ; Ingraham v. Dis- Nat. Bank, infra, and to confine it to the borough, 47 N. Y. 421 ; Cutts v. Guild, 57 doctrine as laid down in McNeil v. Tenth N. Y. 229, 232, 233. In the last case Nat. Bank, infra. ASSIGNMENT OF STOCK CERTIFICATES. 193 assignee to whom the securities have been transferred in good faith, and for vahie, the fact that the title of the first assignee or holder was not absolute and perfect. After some conflict of opinion in the lower courts, the New York Court of Appeals has recently applied the foregoing doctrine to the customary mode of dealing with certificates of stock. It holds that if the owner of such stock certificates assigns them as collateral security, or pledges them, or puts them into the hands of another for an}' purpose, and accompanies the delivery by a blank assignment and power of attorney to transfer the same in the usual form, signed by himself, and this assignee or pledgee wrongfully sells them to an innocent purchaser for value in the regular course of business, such original owner is estopped from asserting, as against this purchaser in good faith, his own higher title and the want of actual title and authority in his own immediate assignee or pledgee. This principle, thus applied to the peculiar state of facts described, and to the particular kind of securities, is in no respect necessarily antagonistic to the general doctrine in relation to things in action before stated in the text. The court rested its decision exclusively upon the form of the blank assignment and power of attorney executed by the assignor and delivered to the assignee, which clothed him with all the apparent rights of owner- ship which are recognized by business men in their usual course of dealing with like securities, as sufficient to confer a complete title and power of disposition upon the assignee. The decision was nothing more than the application of the doctrine of estoppel in circumstances to which it had not before been applied.^ 1 McNeil «. Tenth Nat. Bank, 46 N. Y. he confines himself exclusively to the 325, reversing s. c. 55 Barb. 59. The particular species of security tlien before Supreme Court held (1) that certificates the court, — certificates of stock in stock of stock were in no respect negotiable, corporations ; and, wliile he does not claim and (2) the rule as laid down by Denio J. for them absolute negotiability, he does in Bush v. Lathrop. The law of estoppel in fact render them indirectly negotiable was not invoked nor alluded to. In the by means of the estoppel which arises Court of Appeals the doctrine of latent upon dealing with them in the manner equities was discussed ; the decision of the described, which is the mode universally court in Bush v. Lathrop, and tlie reason- prevalent among business men. In re- ing of Mr. Justice Denio, were expressly spect to the opinion of Denio J. he says recognized as correct, and as applicable to (p. 339) : " But in no part of his learned all cases in which the facts do not warrant and exhaustive opinion does he seek to the application of the principle of estop- apply its doctrine to shares in corpora- pel. Mr. Justice Eapallo, in his able tions or other personal property the legal judgment, does not discuss the rule in title to which is capable of being trans- relation to things in action of all kinds ; ferred by assignment ; and the free trans- 13 194 CIVIL REMEDIES. § 161. This decision, and the rule which it establishes in ref- erence to certificates of stock, are doubtless in the interests of modern business methods. For several years these certificates of stock, with an assignment in blank and a blank power of attorney to effect their surrender and transfer, have been prac- tically regarded by business men as negotiable instruments ; they have been used, transferred from hand to hand, and assigned by delivery, in exactly the same manner as bills and notes payable to bearer, and millions of property are constantly ventured upon their use. It was a matter of absolute necessity that the courts should pronounce these securities practically negotiable ; a con- trary ruling would have interrupted and jeoparded the whole financial sj'^stem of the country. It would have been well if the court had boldly met the question face to face, and had expressly held these securities to be negotiable to all intents and purposes. This course of decision would have, produced no unexpected in- terference with other general doctrines, and it has a precedent in the acts of the American courts holding that municipal and cor- mission from hand to hand is essential to the prosperity of a commercial people. The question of estoppel does not seem to have been considered in that case, and perhaps it would not have been appro- priate." He expressly approves the rule frequently laid down as to chattels, and, while invoking the aid of estoppel, is very careful to state the narrow limits within which it may be used, and the kind of facts which are necessary to its use. He says (pp. 329, 330) : " Simply intrusting the possession of a chattel to another as depositary, pledgee, or other bailee, oi even under a conditional executory con- tract of sale, is clearly insufficient to pr.e- clude the real owner from reclaiming his property in case of an unauthorized dis- position by the person so intrusted. (Bal- lard V. Burgett, 40 N. Y. 314.) The mere possession of chattels, by whatever means acquired, if there be no other evidence of property or authority to sell from the true owner, will not enable the possessor to give gdod title. But if the owner intrusts to another not merely the possession of the property, but also written evidence over his own signature of title thereto, and of an unconditional power of disposition over it, the case is vastly different." The following would seem to be the general rule as thus approved by the court : If the owner of a thing in action delivers it to an assignee for a special purpose, with a simple written assignment thereof, even thougli absolute on the face, this is not enough to raise the estoppel ; but if, with this assignment, the owner gives a fiirther writing containing " an unconditional power of disposition " over the thing in action, then the estoppel may be invoked. In Holbrook v. N. J. Zinc Co., 57 N. Y. 616, 622, 623, the doctrine of estoppel was applied to the corporation itself whose stock had been transferred in good faith, and in the usual manner, to the plaintiff. McNeil ii. Tenth Nat. Bank, supra, and Leitch u. Wells, 48 N. Y. 585, were held to be controlling ; and Ledwich v. McKira, 53 N. Y. 307, was said not to conflict in any manner. It is decided in Nevada that certificates of stock in the ordinary form are not negotiable instruments, so that when such certificates had been stolen and transferred in the customary manner to a bona fide purchaser for value, the latter acquired no title as against the owner. Bercich v. Marye, 9 Nev. 812. EQUITIES BETWEEN ASSIGNOR AND ASSIGNEE. 195 poration coupon bonds of the ordinary form are negotiable. As the court did not pursue this course, it accomplished the same purpose by resorting to the doctrine of estoppel ; and I repeat, that when confined to these peculiar forms of securities which had been made practically negotiable by the course of business, the judgment and its ratio decidendi do not affect the general principle in relation to the transfer of things in action which has been stated and illustrated in preceding paragraphs. But the same court has, in a still later case, gone far beyond both the conclusions and the reasoning of its judgment in McNeil v. Tenth National Bank, and has yirtually obliterated the distinction be- tween negotiable and non-negotiable things in action, at least so far as the relations between assignors and assignees of them are concerned. The doctrine of estoppel, which had been used to protect the customary modes of transacting business with certifi- cates of stock, is now extended to all species of things in action, and the effect of an estoppel is declared to be produced from a mere assignment of the security, absolute on its face, executed hy the original owner, and delivered to his assignee. In short, when- ever the owner of a non-negotiable thing in action delivers the same to another person, and accompanies the delivery by an assignment thereof, absolute on its face, and this person transfers the same to a purchaser for value who relies upon the apparent ownership created by the written assignment, and has no notice of anything limiting that apparent title, the original owner is estopped from asserting as against such purchaser any equities existing between himself and his immediate assignee, and any interest or property in the security which he may have, notwith- standing the written transfer. The Court of Appeals, in reaching this conclusion, expressly overrules the decision made upon the facts involved in Bush v. Lathrop, but at the same time declares that it does not intend to shake the general doctrine controlling the transfer of non-negotiable things in action upon which that decision is based. It is plain, however, that the ancient and, as it was supposed, well-settled doctrine is substantially abrogated by this last application of the principle of estoppel. The estoppel is made to arise from a mere naked transfer in writing, absolute in form ; the rationale of the decision is ^he apparent ownership thus bestowed upon the assignee ; and these elements of the judgment will clearly apply to so many cases that things in action 196 CIVIL REMEDIES. are practically rendered negotiable in their nature as between the series of successive holders, — the assignors and assignees. This point being attained, it will be a short and easy step to apply the doctrine of estoppel to the debtor himself, — the obligor or promisor who utters the security. If negotiability is produced by means of estoppel between the assignor and assignee, arising from the fact and form of a transfer from one to another, by parity of reasoning the debtor may be regarded as estopped by the fact and form of his issuing the undertaking and delivering it to the first holder, and thus creating an apparent liability against himself. In short, there is exactly the same reason for holding the debtor estopped from denying his liability upon a written instrument which apparently creates an absolute liability, when that instrument has passed into the hands of a purchaser who has no notice of the actual relations between the original parties, as for holding an assignor estopped from denying the completeness of a transfer made by hipi absolute on the face. This result, if reached, would render all things in action practi- cally negotiable. 1 § 162. As the result of adjudications of which the foregoing are examples, the rules of the law as established independently of the codes ma,j be summed up in the following manner : (1) 1 Moore v. Metropolitan Nat. Bank, sistent with the reasoning of Denio J. in 55 N. Y. 41. Moore, the owner of a cer- Bush u. Latlirop, and with the decision tificate of indebtedness of $10,000, de- made on the facts of that case. GroverJ. livered the same to Miller for a certain does not allude to the careful distinction special purpose, but not intending to drawn by Rapallo J. between the circum- transfer any property therein ; in fact, stances of the two cases, nor his approval Miller was to procure the same to be dis- of the general doctrine and course of counted, and to account for the proceeds, reasoning contained in Judge Denio's or else return the certificate. Moore, opinion. Nor does Judge Grover make however, gave Miller the following writ- the slightest allusion to the narrow limits ing, indorsed on the instrument : " For placed by Rapallo J. upon the use of the value received, I hereby transfer, assign, estoppel ; namely, to those cases in which and set over to Isaac Miller the within- the assignor, by a written instrument over described amount, say ten thousand dol- his signature, confers not only the appa- lars. Levi Moore." Miller assigned the rent tit\e, but the unconditional pouxr of dis- certificate to the defendant for value, who position over the security. While the took it on the faith of this written assign- judgment of Kapallo J. in McNeil v. Tenth ment, without notice of the true relations Nat. Bank was guarded and cautious, and between Moore and Miller. The action eminently proper in respect to the pecu- was brought to recover possession of tlie liar class of securities, that of Grover J. certificate. The court held, per GroverJ. is, I think, opposed to doctrines the most (pp. 46-49), that the case is controlled by elementary, and can only produce confu- that of McNeil v. Tenth Nat. Bank, and sion in a branch of the law which had that the judgment in the latter is incon- been settled for generations. SET-OFF AGAINST THE ASSIGNEE. 197 All defences, either legal or equitable, which existed in favor of the debtor himself against the original creditor at the time of the assignment, or of notice to him of the assignment, of a non- negotiable thing in action, avail to him against the assignee who seeks to enforce the demand against such debtor ; (2) When the owner and holder of a non-negotiable thing in action trans- fers it to an assignee for a special purpose — such as security for a loan, and the like — by an assignment absolute on its face, but as between himself and his assignee retains an interest in or claim upon the demand, and this assignee assumes to transfer the same absolutely to a second assignee who purchases in good faith without notice and for value, the first assignee in fact transfers no higher title than he possesses, and the second assignee takes the thing in action subject to the equities and claims of the original assignor; but (3) in the State of New York a modifica- tion of this second rule has been introduced in very recent deci- sions, and in pursuance thereof, if the original owner accompanies the delivery of the thing in action with a written assignment thereof absolute in form, and therefore apparently vesting the complete ownership in his immediate assignee, an innocent pur- chaser for value from the latter is protected against any claims, demands, or equities existing in favor of the first assignor; the latter is estopped from asserting his true right and property in the security. This modification, which was at first confined to certificates of stock transferred b}' means of the customary blank assignment and power of attorney, has been extended to all things in action. § 163. What construction has been put by the courts upon the provision of the codes embodying and reaffirming these gen- eral rules ? I shall consider in the first place the effect of this provision upon the defence of set-off. No substantial change has been made in the rights of the several parties. The assignee takes the demand assigned subject to all the rights which the debtor had acquired prior to the assignment, or prior to the time when notice was given, if there was an interval between the execution of the transfer and the notice ; but he cannot be pre- judiced by any new dealings between the original parties after notice of the assignment has been given to the debtor. When two opposing debts exist in a perfect condition at the same time, either party may insist upon a set-off. If, therefore, the holder of 198 CIVIL EEMEDIES. such a claim already due and payable assign the same, and the debtor at the time of this transfer holds a similar claim against the assignor, which is also then due and payable, he may set off his debt against the demand in the hands of the assignee. If, however, the assignment is made before the opposing demand becomes mature, and the latter does not thus become actually due and payable until after the transfer, the debtor's right of set-off is destroyed by the mere fact of the assignment, and no notice thereof to him is necessary to produce that effect. The following special rule also exists und«r the peculiar circumstances mentioned. If an insolvent holder of a claim not yet matured assigns the same before maturity, and the debtor at the time of this transfer, holds a similar claim against the assignor, which is then due and payable, his right of set-off against the assignee, when the latter's cause of action arises, is preserved and protected. This latter doctrine is based upon considerations of equity, and is intended to prevent one party from losing his own demand on account of the insolvency of his immediate debtor, and from being at the same time compelled to pay the debt originally due from himself to that insolvent. These three rules existed prior to the codes, and have not been changed by the provisions of the statute under consideration.' 1 Beckwith v. Union Bank, 9 N. Y. set-off. Frick v. White, 57 N. Y. 103. 211; Myers u. Davis, 22 N. Y. 489 ; Mar- Wliere theassigneeofajudgmentbrought tin V. Kunzmuller, 37 N. Y. 396 ; Blyden- an action in the nature of a creditor's suit burgh V. Thayer, 3 Keyes, 293 ; 34 How. against the judgment debtor and others, Pr. 88 ; Watt !'. Mayor, &c., 1 Sandf. 23 ; to subject certain equities to the lien of Wells u. Stewart, 3 Barb. 40 ; Ogden u. the judgment, and the debtor interposed Prentice, 33 Barb. 160 ; Adams v. Rodar- as a set-off a debt due himself from the mel, 19 Ind. 339; Morrow's Assignees v. assignor — the judgment creditor — atthe Bright, 20 Mo. 298; Walker v. McKay, time of the assignment, it was held, in 2 Mete. (Ky.) 294; Roberts v. Carter, 38 Ohio, that the assignor was a, necessary N. Y. 107 ; Williams v. Brown, 2 Keyes, party, and, in his absence, the set-off 486 ; Robinson v. Howes, 20 N. Y. 84 ; could not be passed upon and allowed. Maas V. Goodman, 2 Hilt. 275 ; Merrill v. Gildersleere v. Burrows, 24 Ohio St. Green, 55 N. Y. 270, 274 ; Lathrop v. God- 204. When negotiable paper is trans- frey, 6 N. Y. Sup. Ct. 96. The claim set ferred after maturity, the maker has the up by the defendant must be a valid set- same right to avail himself of a claim off. In an action by the assignee of a against the assignor as a set-off that he liquidated demand arising out of con- would have if the demand assigned was tract, — a debt, — the defendant cannot not negotiable. Norton u. Foster, 12 Kans. interpose a claim against the assignor for 44, 47,48 ; Leavenson v. Lafontane, 8 Kans. unliquidated damages resulting from the 523, 526. As further illustrations of the breach of a contract, and thus defeat or text, see Martin v. Pilsbury, 23 Minn, diminish the recovery. Such a defence is 175 ; Davis v. Sutton, 23 id. 307 ; Davis v. not a counter-claim, and does not fall Neligh, 7 Neb. 84 ; Downing w. Gibson, 53 within the prior statutory description of Iowa, 517 ; Chapman v. Plumer, 36 Wis. SET-OFF AGAINST THE ASSIGNEE. 199 § 164. The true extent and limitations of the doctrine will best be seen in its application to the facts of decided cases. On the 24th August, 1850, the firm of W. C. & A. A. Hunter, having on deposit in the Union Bank the sum of $3,600, made a general assignment to one Beckwith. At the time the bank was holder of a bill of exchange which was indorsed by the firm, and had been discounted by the bank for them. This bill fell due on the 27th of August, and, not being paid, the amount of it was charged against the firm in their account by the bank. On the next day, the 28th, the assignee for the first time notified the bank of the assignment, and demanded payment of the sum on deposit to the firm's credit, which was refused. The assignee brought a suit to recover the debt, and the bank set up the amount due on the bill of exchange as an offset. It was held by the Superior Court of New York City, and by the Court of Appeals, that tlie demand in favor of the bank could not be set off, as it was not an existing demand payable when the assignment was made ; and that no notice was necessary by the assignee to protect himself against such a defence. Notice is only necessary against subsequent acts and dealings of the debtor with an assignor, which might preju- dice the rights of the assignee, such as payment.^ In March, 1855, the firm of Watrous & Lawrence made a general assign- ment to one Meyers, having before that time sold goods to the defendants on credit, the price of which did not become due and payable until September, 1855. In February of the same year, W. & L. had ordered from the defendants a quantity of articles 262 ; Hart v. Honchin, 50 Ind. 327 ; Heav- acts to have affected his rights." See enridge v. Mondy, 49 Ind. 434 ; Turner v. however, Smith v. Fox, 48 N. Y. 674, Campbell, 59 Ind. 279 ; Barlow v. Myers, which was an action by an assignee for 64 N. Y. 41, reversing 3 Hun, 720 ; 6 T. & the benefit of the creditors of one R., a C. 183 ; Dunning v. Leavitt, 85 N. Y. 30; private banker, brought on a note given Shipman y. Lansing, 25 Hun, 290; Sey- by defendant to R., and transferred to the mour V. Dunham, 24 id. 93 ; Taylor v. The plaintiff. At the time of the assignment Mayor, &c., 20 id. 292. defendant had an amount of money on 1 Beckwith v. Union Bank, 9 N. Y. deposit with R., — more than sufficient 211, 212. Johnson J. said : " Nor had the to pay the note ; and this demand was bank any lien on the deposit of the held to be a good set-off against the note, Hunters which would have prevented on the authority of Smith v. Felton, 43 their drawing out the whole balance of N. Y. 419. The claim made against the cash to their credit on the 24th of August, defendant, and the demand set up by him, This right passed to the plaintiff by the must both affect him in the same capa- assignment : no notice was necessary to city ; thus, when the defendant Is sued for protect that right in the assignee, except a personal debt, he cannot interpose as a only that, in default of notice, the bank set-off a demand due him as an executor, might have so dealt as by its subsequent Barlow v. Myers, 6 N. Y. Sup. Ct. 183. 200 CIVIL REMEDIES. — patent churns — to be manufactured and delivered at a certain agreed price. There had been such mutual dealings between the parties before. In May, 1855, the defendants completed the churns, and tendered them to the assignee, who declined to receive them. The assignee brought an action for the price of the goods when it became due in September, and the defendants insisted upon the value of the churns as an offset. The defence of offset was rejected. The court held that the situation of the parties at the date of the assignment must determine the question, and unless a right of offset existed then, it could not arise afterwards. It did not exist then, because neither of the demands had ma- tured ; but it was enough that the defendant's claim was not yet payable, even if the one assigned was presently due.^ If the de- fendant's demand had become mature at the time of the assign- ment, it could undoubtedly have been set off under the equitable rule before stated, on account of the insolvency of W. & L. A firm made a general assignment, having at the time a claim due and payable against the defendants. The assignee brings an action upon the demand, and the defendants set up a note of the assignors ■which they held at the time of the assignment, but which did not fall due until after that date. The attempted set- off was rejected. " An allowance to a party by way of set-off is 1 Myers o. Davis, 22 N. Y. 489, 490, work, the demand against the defendants per Denio J. After stating that the code had become the property of the plaintiff lias not made any change in the substan- as trustee for the creditors of the insolvent tial rights of the parties, he proceeds : debtors. The rule of law applicable to " An assignee of a chose in action, who has the case is stated in 2 K. S. (of N. Y.) p. given notice of the assignment, is not 354, § 18 (8)." ..." The rule is that, when liable to be prejudiced by any new deal- such claims exist in a perfect condition at ings between the original parties to the the same time, either party may insist contract ; but he takes the contract as- upon a set-off. So, when one claiming a signed, subject to all the rights which the set-oflf has a demand against the other, debtor had acquired prior to the assign- presently payable, and the other party is raent, or to the time notice was given of insolvent, the former may claim to have it, when there is an interval between the the set-off made, though the demand of execution of the transfer and the notice, his adversary against him has not become ... If the defendants had completed [the payable. But if, before the demand of manufacture] before the assignment, the the party claiming the set-off becomes right to an assignment would have at- mature, the opposite claim has been as- tached.ofwhich the defendants would not signed, whether the assignment carries have been deprived by any act of W. & the legal or only tlie equitable title, the L. ; but, unfortunately for the defendants, right of set-off no longer exists. This is no debt had arisen in their favor when the present case ; and the set-off cannot, W. & L. failed and made their assign- in my opinion, be claimed; "citing Chance ment ; and when a debt afterwards came v. Isaacs, 5 Paige, 592 ; Bradley v. Angell, into existence by the completion of the 3 N. Y. 475, 493. SET-OFF AGAINST THE ASSIGNEE. 201 always founded on an existing demand in prcesenti, and not on one that may be claimed infuturo."^ In an action by an assignee for the benefit of creditors, the defendant relied upon a judgment for costs recovered by himself against the assignor after the making of the transfer. This set-off was not admitted, and it was decided that no notice of the assignment was necessary to cut off such a defence.^ And when the defendants, in an action brought upon an assigned demand, alleged payments which they had made, subsequent to the assignment, as sureties for the assignor upon a liability existing prior to, and at the time thereof, this set-off was overruled on the same principle ; for, although there was a lia- bility which might result in a debt, there was no existing debt until the payment had actually been made.^ In another action by an assignee the defendant insisted that a similar set-off arising from his payment as surety for the assignor, made under the same circumstances as the last, should be allowed as within the equi- table rule on account of the assignor's insolvency. The set-off was rejected, however, because there was no existing indebted- ness in favor of the defendant against the assignor, at the date of the assignment. Such a present indebtedness is indispensable, whether the case is to be governed by the ordinary rule, or whether the equitable doctrine based upon the assignor's insol- vency is relied upon.* When a negotiable promissory note is assigned before it becomes due, the maker thereof cannot offset against the assignee a claim existing against the original payee and assignor of the note, although the assignee have notice of such claim at and before the time of the transfer to him; there is no case for the set-off between the original parties at the date of the assignment because the demands are not then matured, and 1 Martin v. KunzmuIIer, 37 N. Y. ment of his own note, liad at that time 396 ; Watt v. The Mayor, &e., 1 Sandf. no available set-off or defence against it. 23 ; Wells v. Stewart, 3 Barb. 40. The mere fact that he was surety for the 2 Ogden V. Prentice, 33 Barb. 160. assignor on another note, and that he was * Adams v. Rodarmel, 19 Ind. 339. insolvent, would not constitute an equita- * Walker v. McKay, 2 Mete. (Ky.) ble defence to an action on his note either 294, per Simpson C. J. " The doctrine in the name of the assignor or the as- that a debt or demand cannot be used as signee." See, however. Morrow's As- a set-off until it becomes due, and that, signees v. Bright, 20 Mo. 298, in which, unless it be due before notice of the as- upon the same facts, the set-off was al- signment, it is not available against the lowed, the court plainly mistaking or assignee, is fully established by adjudged misconceiving the extent and limitations cases. . . . The appellant, not having of the equitable doctrine flowing from the paid the debt for which he was surety at insolvency of the assignors. the time he was notified of the assign- 202 CIVIL REMEDIES. the notice given to the assignee is not of any existing legal de- fence.^ There being no possibility of setting off a claim of damages arising from a tort or fraud against a demand growing out of contract, if two such opposing claims exist and are in suit, and the creditor in the contract assigns his cause of action, which is after- wards merged in a judgment in favor of the assignee, and subse- quently to that assignment the opposing party — the debtor in the contract — obtains a judgment for the damages in his action on the tort, the latter is not entitled to set off this judgment against the one recovered against himself by the assignee. No rights of set-off existed at the date of the transfer, and none could spring up after that time.^ § 165. It is possible that a right of set-off may be available at the time an action is brought, although at some prior period it was suspended, as is well illustrated by the following case : On the 29th of August the Hollister Bank discounted for one Monteath a sight draft on New York drawn by him, and passed the proceeds to his credit as a deposit. He did not draw them out. This draft was dishonored on presentment. On the 31st the bank failed, and in the course of time Robinson was appointed its receiver. On the 21st of September Monteath assigned to the Howes his claim against the bank for the sum on deposit, the same being partly or wholly the proceeds of the said draft. At the time of the assignment the draft in question was held by parties in New York, to whom the bank had transferred it as collateral security ; and, of course, during the interval in which the draft was thus held, the bank could have had no possible set-off by means of it against the demand of Monteath for his deposit, either made by him or by his assignee. But before any action was brought, the bank again became owner of the draft. An action was afterwards commenced by the receiver to recover an indebtedness due to the bank from the Howes ; they set up 1 Williams o. Brown, 2 Keyes, 486. « Roberts v. Carter, .38 N. Y. 107. See also Barlow v. Myers, 6 N. Y. Sup. Woodruff J. said, by way of a dictum Ct. 183. But, where negotiable paper is (p. 110), that if insolvency of the as- assigned after maturity, the maker's signer had been proved, still the right of rights of set-off are the same as though setrofE would not have arisen, since at the demand assigned was not negotiable, the time of the transfer no debt existed Norton v. Foster, 12 Kans. 44, 47, 48 ; which could be set ofE. See Martin v. Leavenson v. Lafontane, 3 Kans. 523; Richardson, 68 N. C. 255, and cases Harris v. Burwell, 65 N. C. 584; contra, cited. Richards v. Darly, 34 Iowa, 427, 429. SET-OFF AGAINST THE ASSIGNEE. 203 the claim of Monteath for his deposit assigned to them, as above stated ; and the receiver in fact opposed the demand of the bank against Monteath upon the dishonored draft as a set-off to the defendants' set-off. Although the New York Court of Appeals held that the debt against the bank assigned to the defendants by Monteath should be disallowed, yet their entire reasoning shows that it was disallowed, not because it would not in itself have been a valid set-off, but because its effect was entirely destroj^ed by the counter set-off of the draft in the hands of the bank. If the bank had retained the continuous ownership of the draft, as soon as it was dishonored it would have been a good claim against Monteath, and would have extinguished, in whole or in part, his claim for the money due on deposit ; this set-off, existing at the date of the assignment to the defendants, would have been equally available against them ; and as the bank be- came owner of the draft before the action was brought, its origi- nal right revived with the same force and to the same extent as though the draft had never been out of its control.^ § 166. It is held, in California, that a demand against an as- signor, which was obtained by the debtor or accrued in his favor before notice of the assignment, although in fact subsequent to the assignment itself, may be set off against the cause of action in the hands of the assignee.^ This ruling, however, is clearly opposed to the doctrine of the New York cases already quoted, and to the theory of set-off generally adopted. Notice may be required in order to cut off other defences ; but a set-off, accord- ing to the accepted rule, must exist in the form of a debt then due and payable to the debtor at the date of the transfer. A note, payable on demand, with or without interest, transferred at a considerable interval of time after its date, is taken and held by the assignee, subject to all defences existing in favor of the maker against the payee at the time of the transfer; in other words, such a note is transferred after maturity.^ § 167. When notice to the debtor is necessary to a complete protection of the assignee against subsequent transactions be- 1 Robinson v. Howes, 20 N. Y. 84. in the New York courts upon the quea- 2 McCabe v. Grey, 20 Cal. 509. tion whether notes on demand with interest 8 Herrick v. Woolverton, 41 N. Y. are oontinuing securities, or whether, hke 581, reversing s. c. 42 Barb. 50. This such notes without interest, they become case decides nothing new in the law of due at once, set-ofif; it simply ends a long controversy 204 CIVIL REMEDIES. tween the assignor and the debtor, such as payment, release, and the like, an actual notice is not indispensable. Such information or knowledge as would be sufl&cient to put any reasonable man upon the inquiry, when an inquiry reasonably followed up would have led to an ascertaining of the truth, is equally effective to protect the assignee ; in short, the equitable rule in reference to purchasers of land applies to the assignees of things in action.^ In Ohio, a set-off against the person beneficially interested, for whose benefit the suit is prosecuted, ma,j be interposed when the action is brought by one who is, within the meaning of the code, a trustee of an express trust, and there has been no assignment at all. Thus, where a promise is made to A. for the benefit of B., and the former, in pursuance of the express permission of the code, brings the action in his own name, a set-off existing against B., who is the real party in interest, the beneficiary for whose behalf the contract was made and the suit is maintained, may be pleaded, and, if proved, will be allowed in total or partial bar of the recovery.^ While in actions prosecuted by assignees the de- fendant can always avail himself of any existing valid set-off, and sometimes counter-claim, as a defence, he cannot recover a judg- ment against the assignee for the excess of any of his claim over the amount of debt established by the plaintiff; as against the assignee, a set-off and a counter-claim of the same nature — that is, a right of action which would be a counter-claim if prosecuted against the original assignor — can only be used defensively, and can do no more than defeat the action entirely.'' § 168. Many difiiculties have arisen, and many cases have been decided, growing out of proceedings to wind up insolvent corpora- tions, and especially insolvent insurance companies ; but, as the questions generally turned upon particular provisions of charters, or of statutes regulating such proceedings, little or no aid can be obtained from these decisions in construing the section of the code under consideration. A portion of these companies were mutual, in which every person assured became at once a corpora- tor, so that in any business transaction between himself and the company he would necessarily occupy both the position of cred- 1 Wilkins v. Batterman, 4 Barb. 47 ; s Leavenson v. Lafontane, 3 Kans. 523, Williamson v. Brown, 15 N. Y. 354. 525 ; Loomis v. Eagle Bank, 10 Ohio St. 2 Miller & Co. v. Florer, 15 Ohio St. 327; Casad v. Hughes, 27 Ind. 141. 148, 151. SET-OFF AGAINST THE ASSIGNEE. 205 itor and of debtor. This double relation is destructive to any power on his part of invoking the doctrine of set-off. Other companies were stock corporations, and, in addition to the rules as to set-off common to all creditors and debtors, there are special statutory provisions in many States regulating the winding up of these bodies, which greatly enlarge the scope of set-off. The adjudications made in the settlement of such corporations, and the particular rules applicable to them adopted by the courts, have, therefore, little or no connection with the subject-matter of the present discussion. In the case of a mutual company there is no room for any set-off, as has been expressly deter- mined. A marine insurance company having become insolvent, and a receiver of its affairs appointed, he brought an action on certain notes given by the maker thereof for the premium of sev- eral policies of insurance. A loss had occurred on one of these policies which became due and payable before any of the notes fell due, and before the appointment of the receiver and the assignment to him. There was an interval of time, then, both before the appointment of the receiver and afterwards, during which the company first and the receiver subsequently were holders of a claim against the defendant not yet matured, while the defendant was holder of a claim against the company which was due and payable. Upon the general doctrine as heretofore stated in the text, the maker of these premium notes could not have had an available set-off against the assignee, because at the date of the transfer both demands had not matured ; but, as his own claim was then due and payable, the equitable rule founded upon the insolvency of the assignor would have relieved him. The set-off was entirely rejected, however, on the ground that the company was mutual, the defendant being a corporator, and both a debtor and a creditor.^ In other cases brought by the receiver of an insolvent insurance company, not mutual, upon premium notes, claims by the makers of the notes on account of losses which occurred previous to the appointment of the receiver, but not adjusted so as to become actually payable until after the transfer to him, have been allowed as offsets, not, however, by virtue of the general law as to offsets, — it being held that they 1 Lawrence v. Nelson, 21 N. Y. 158. the set-off would have been allowed as It was conceded, by way of a rfi'rfum, that stated in the text, if the corporation had not been mutual, 206 CrVIL EEMEDIES. did not fall within the settled rules, — but by virtue of certain provisions contained in the statute relating to insolvent corpora- tions which describe such claims as "mutual credits, " and direct them to be set off.^ § 169. When an executor or administrator sues individually on a note given, or a promise made to him as such personal represent- ative for a debt owing to the deceased at the time of his death, it is the rule in New York that the defendant cannot set off claims due to himself from such decedent, although accruing prior to the death, " on the ground that the plaintiff's demand [that actu- ally sued upon] arose after the death of the testator ; and in such a case, no set-off can be received, notwithstanding it existed at the time of the death of the deceased." '^ § 170. The foregoing cases and statements relate to the special defence of set-off as against the assignee. Exactly the same rules apply to every other species of defence, with the single modifica- tion that, in respect of many such defences, the point of time which limits the effect or cuts off the availability of the defence is not the date of the assignment, but the date of the notice thereof, actual or implied, which is given to the debtor. If the debtor is not notified actuall}- or impliedly of the assignment, it is possible that many transactions between himself and the assignor, done in good faith on his part, may have the same effect in dis- charging his indebtedness as if the demand had not been as- signed, — such as payment to or release by the original creditor, the assignor. But no transaction can have this effect if entered into subsequently to a notice of the assignment given to the debtor, or to such information received by him as in law amounts to the same thing as actual notice. Thus, if after a notice to the debtor that the demand against him is assigned, he make a pay- ment to the assignor, he cannot rely upon it as a defence par- tial or total to an action brought by the assignee to enforce the claim.^ The scope of this work does not require nor even permit that I should discuss the defence of set-off, or any other particular defence, in an exhaustive manner. The sole purpose of this sec- 1 Osgood V. De Groot, 36 N. Y. 348. Evans, 8 Wend. 530 ; Mercein v. Smith, See, however, Osgood v. Dgden, 4 Keyes, 2 Hill, 210 ; 2 R. S. 279. 70. 8 Field V. The Mayor, &e. of N. Y., 6 2 Merritt v. Seaman, 6 N. Y. 168, clt- N. Y. 179. ing Root 0. Taylor, 20 John. 137 ; Fry v. TRUSTEE OF AN EXPRESS TRUST. 207 tion is to construe and interpret the provision, found in almost the same language in all the State codes of procedure, and to ascertain what change, if any, that provision had wrought in the pre-existing rules of the law in relation primarily to parties, and incidentally to the availability of defences where the party plain- tiff is an assignee of a thing in action. SECTION FIFTH. "WHEN A TRUSTEE OF AN EXPRESS TRUST MAY SUE. § 171. There are two forms of the statutory provision, which differ, however, very slightly. The first is : " An executor, an administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the per- son for whose benefit the action is prosecuted. A trustee of an express trust, witTiin the meaning of this section, shall be con- strued to include a person with whom or in whose name a contract is made for the benefit of another." ^ The second form is a little more special : " An executor, 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 without joining with him the person for whose benefit it is prosecuted. Officers maj' sue and be sued in such name as is authorized by law, and official bonds may be sued upon in the same way." ^ The only difficulties of interpreta- tion presented by this section are the determining with exactness what persons are embraced within the three classes, described as "trustees of an express trust," "persons with whom or in whose name a contract is made for the benefit of another," and " per- sons expressly authorized by statute to sue." It is plain that there are substantially three classes. The second and better form of the provision actually separates them, and does not represent one as a subdivision of the other. The first form in terms speaks 1 N. Y. § 113 (449) ; Ind. § 4 ; Minn § 28; Cal. § 369; Mo. art. 1, § 8; Wis ch. 122, § 14 ; Florida, § 64 ; South Caro- lina, § 136 ; Oregon, § 29 ; Nevada, § 6 Dacota, § 66; North Carolina, § 57 Wash. § 4; Ida. § 6 ; Wyo. § 34 ; Mont. §6. 2 Ohio, § 27; Kansas, § 28; Iowa, § 2544 ; Nebraska, § 30 ; Kentucky, § 33. 208 CIVIL EEMEDIES. of " the person with whom or in whose name a contract is made for the benefit of another " as an instance' or individual of the wider and more inclusive group, " trustees of an express trust." It should be carefully noticed, however, that these two expres- sions are not stated to be synonymous ; the former is not given as a definition of the latter. The section does not read, " a trustee of an express trust shall be construed to mean a person with whom or in whose name a contract is made for the benefit of another ; " but simply that the latter shall be regarded as one species of the genus. There is here no limitation, but rather an extension, of the meaning, and the clause of course recognizes other kinds of trustees besides the party to the special form of contract, who is not very happily termed a " trustee." The sec- tion of the New York code, when originally passed, contained but the first sentence as it now stands. Some doubt arose as to its meaning, and a judicial decision having held that- the phrase embraced, among others, a person with whom or in whose name a contract is made for the benefit of another, the legislature, to remove all possibility of doubt, added this judicial language as an explanatory clause. The two forms of the provision, although their phraseology differs somewhat, mean exactly the same thing, and establish exactly the same rule. As these two phrases, whe- ther they be regarded as separate, or one as partially explanatory of the other, are the most comprehensive ones in the section, and present the main difficulties of construction, I shall discuss them first in order, and shall endeavor to ascertain what particular classes of persons were intended to be described by them. This discussion will consist in discovering, if possible, some general principle of interpretation by which to test each particidar case, and in stating the instances which have been definitely passed upon bj' the courts. § 172. What is a " trustee of an express trust " ? The section uses the term in its most general sense without limitation, so that when its full legal signification is ascertained, that must be its meaning in this connection. If the legislature has said, as in New York and other States, that, in addition to its generally accepted technical import, it shall also include certain persons who are not usually, nor perhaps with strict accuracy, denominated "trustees," this exercise of the legislative power within the domain of defini- tion does not change, certainly does not lessen, its signification. TRUSTEE OF AN EXPRESS TRUST. 209 as it stands without the explanatory comment. In Ohio, and in several of the States, the phrase is used alone, but accompanied b)'' the clause which is descriptive of another class, and is not a mere partial explanation. We must find the true legal definition of " trustees of an express trust," and add to this the " persons with whom or in whose name contracts are made for the benefit of others ; " the combined result will be the entire class intended by the legislature. It is obvious that the trust must be " ex- press," in contradistinction to implied. In the large number of instances where a trust is raised by implication of law from the acts, circumstances, or relations of the parties, the trustee is certainly not embraced within the language of the provision. An express trust assumes an intention of the parties to create that relation or position, and a direct act of the parties by which it is created in accordance with such intention, outside of the mere operation of the law. In the case of an implied trust, the law, for the purpose of doing justice, and usually for the purpose of working out some equitable remedy, lays hold of the prior situa- tion, acts, or circumstances of the parties, declares that a trust arises therefrom, and imposes the quality of trustee upon one, and of beneficiary upon another, in a manner and with a result that are often the furthest possible from their actual design. In an express trust the parties intend such a relation between them- selves, carry out their intention by suitable words, and the law confirms and accomplishes the object which they had in view. An express trust primarily assumes three parties : the one who by proper language, creates, grants, confers, or declares the trust ; the second who is the recipient of the authority thus con- ferred ; and the third for whose benefit the aulhority is received and held. It is true that in many instances the first-named par- ties are actually but one person ; that is, the same individual de- clares, confers, receives, and holds the authority for the benefit of another ; but the theory of the transaction is preserved unaltered, for the single person who creates and holds the authority acts in a double capacity, and thus takes the place of two persons. It is impossible, however, to conceive of an express trust as a legal transaction or condition, without assuming the prior intention, and the express language by which this intention is effected, and the trust created resting upon one as the trustee for the benefit of a second as the beneficiary ; and, except as every grant, transfer, 14 210 CIVIL REMEDIES. or delegation of authority and power is in a certain broad sense a contract, the notion of a contract is not essential to our concep- tion of an express trust. The authority may be conferred by the public acting through governmental machinery, as in the case of officers, or by the intervention of courts, as in the cases of ad- ministrators, executors, receivers, and the like ; or by private persons, as in innumerable instances of trusts relating to real or personal property ; but there must be the intent to accomplish that very result, and this intent must be expressed by language or by some process of delegation which the law regards as an equivalent. Furthermore, in its accurate legal signification, a trust implies something which is the subject thereof. Although the word may have a more extensive meaning in its popular use, so that a trust may be spoken of where the trustee is simply clothed with a power to do some personal act unconnected with any prop- erty in which he has an interest or over which he has a control, yet this is not its legal import. An illustration of this legal notion of a trustee may be seen in the case of a guardian over the person alone of his ward, without any interest in or power over his estate, or the committee of the person of a lunatic. Such a guardian or committee, although possessing a power to be exer- cised for the benefit of another, is not a trustee ; and the term, when applied to him, could be used only in a popular and not a legal sense. Such a guardian or committee would not therefore, by virtue merely of the permission granted in the provision of the statute under examination, be entitled to sue in his own name as a trustee of an express trust. In the light of this analysis of the expression as a term of legal import, it is plain that " a per- son with whom or in whose name a contract is made for the ben- efit of another," is not necessarily a trustee. He may be ; and whether he is or is not must depend entirely upon the nature and subject-matter of the contract itself. The contract may be of such a kind, stipulating concerning property in such a manner, that the contracting party will be made a trustee. On the other hand, it may be of such a kind, having no reference perhaps to property, or stipulating for personal acts alone, that the contract- ing party will not be a trustee in any proper sense of the word, but will be at most an agent of the person beneficially interested. There are numerous instances, therefore, in which an agent, who enters into an agreement for either a known or for an unknown TRUSTEE OF AN EXPRESS TRUST. 211 principal, is permitted, in accordance with the particular clause under consideration, to sue in his own name. § 173. I shall proceed to show, in the first place, how far the foregoing description is sustained by judicial authority. Few cases have attempted to define the phrase, " trustee of an express trust," in any comprehensive manner, for the courts have in most cases been content with determining whether the particular in- stance before them fell within the term. The following defini- tions or descriptions, however, have been given : " An express trust is simply a trust created by the direct and positive acts of the parties, by some writing, or deed, or will. And it is to be observed, in reference to § 4 of the code [of Indiana], that it does not assume to define the meaning of the term ' trustee of an express trust ' in its general sense ; it simply declares that these words, within the meaning of the section, ' shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another.' Evidently this provision was not intended to limit the meaning of the general term, ' express trust,' or to confine the operation of the statute to the particular class of cases referred to, but rather to enlarge its sense by in- cluding also that class within it.''^ In another case it was said: " In order to constitute a trustee of an express trust, as I under- stand the statute, there must be some express agreement to that effect, or something which in law is equivalent to such an agree- ment. The case of factors and mercantile agents may or may not constitute an exception under the custom and usage of merchants. But in every other case the trust must, I think, be expressed by some agreement of the parties, not necessarily, perhaps, in writ- ing, but either written or verbal, according to the nature of the transaction. In this case no agreement is shown that the plain- tiff was to take or hold as trustee, and that he is a trustee results merely from other circumstances. It is implied from the fact of partnership, and from the fact that the plaintiff received the assignment on account of a debt due the firm. If it is not a case purely of implied trust, as distinguished from an express trust, then I am at loss to conceive of one ; and to hold the plaintiff to be a trustee of an express trust would, in my judgment, be a palpable disregard of the statute, and a violation of the intent of • Weaver v. Trustees of the Wabash, &c., Canal Co., 28 Ind. 112, 119. 212 CIVIL REMEDIES. the legislature." ^ In a case where a contract in the nature of a lease was effected by a person describing himself in the instru- ment as agent of the owners, but who had no interest whatever in the premises leased, and did not execute the instrument, and to whom no promise was made as the lessor, it was held that he could not maintain an action for the rent or for possession of the land forfeited by non-payment of the rent. He could not sue as the " person with whom, or in whose name, a contract is made for the benefit of another," because no promise at all was made to him, and he was not a " trustee of an express trust." The court said : " One who contracts merely as the agent of another, and has no personal interest in the contract, is not the trustee of an express trust within the meaning of the statute, and cannot, under the code, sue upon such contract in his own name." Of course this last expression must be taken irr connection with the facts of the case ; namely, that no promise was made to the plaintiff individuall3^^ § 174. The nature of an express trust, and the classes of per- sons embraced within the statutory phrases in question, were de- termined, upon great consideration, by the New York Court of Appeals, in the leading case of Considerant v. Brisbane.^ " The 1 Kobbins v. Deverill, 20 Wis. 142, per Fuller and M. Rawlings : I, B. P. Fuller, Pixon, C. J. This was an action by the agent for Sarah Floyd's heirs' property, plaintiff as assignee of P. & W. The do agree to rent [certain premises] to M. assignment was in writing, but was taken Rawlings for [a certain rent], and on the on account of a. debt due from P. & failure on the part of the said M. Rawlings W. to the firm of R. & L., which con- to pay said rent on the first day of every sisted of the plaintiff and the two month in advance, then it is hereby others, with an understanding that P. agreed between B. F. Fuller, landlord, & W. were not to be credited on their and M. Rawlings, tenant, that the above debt to R. & L. until the money was col- contract is at an end, and B. F. Fuller lected. Dixon C. J. said : "The demand shall be entitled to take possession of said was transferred to the plaintiff alone by property." The complaint alleged rent words of absolute assignment, no trust unpaid, and demanded possession and the being expressed. . . . Upon these facts the amount of rent due. The court said: plaintiff cannot recover. He is not the " It will be observed that the complaint real party in interest, nor the trustee of does not assert any claim of title in an express trust, within the meaning of Fuller. The contract is not signed by the statute. He is not a trustee of an Fuller, and does not, in express terms, express trust, because no such trust ap- contain a promise to pay rent to him. It pears from the assignment, and none is describes him as agent of the property, shown to exist between himself and his and expressly states that it belongs to the copartners by virtue of any other instrn- heirs of S. Floyd. We do not think the ment." He then adds the remark quoted facts constitute Fuller a trustee of an ex- in the text. press trust," adding the language quoted 2 Rawlings v. Fuller, 31 Ind. 255. in the text. Fuller sued on the following agreement : a Considerant v. Brisbane, 22 N. T. " Articles of agreement between B. F. 389, 395, per Wright J. As to action by TEUSTEE OF AN EXPRESS TRUST. 213 term ' trustee of an express trust ' had acquired a technical and statutory meaning. Express trusts, at least after the time of the adoption of the [New York] Eevised Statutes, were defined to be trusts created by the direct and positive acts of the parties, by some writing or deed, or will ; and the Revised Statutes had abolished all express trusts except those therein enumerated which related to land. If this section (§ 113 [449]) of the code was to be restricted and limited to those enumerated express trusts, the practical inconvenience arising from making the beneficial interest the sole test of the right to sue, and which that section (§ 113) was intended to obviate, would continue to exist in a large class of formal and informal trusts. Accordingly, in 1851, the section was amended by adding the provision that ' 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.' It is to be observed that there is no attempt to define the meaning of the term ' trus- tee of an express trust ' in its general sense ; but the statutory declaration is that these words ' shall be construed to include a person,' &c. The counsel iot the respondent insists that the sole intention of the legislature in amending the section was to remove a doubt that had been expressed, whether a factor or other agent, who had at common law a right of action on a contract made for the benefit of his principal by reason of his legal inter- est in the contract, was by the code deprived of that right. But no such limited intention can be inferred from the words of the statute. Indeed, it is only by a Uberal construction of the section that the case of a contract by a factor (an individual contract) can be brought within it at all. It is intended manifestly to embrace, not only formal trusts declared by deed inter partes, but all cases in which a person acting in behalf of a third party enters into a written express contract with another, either in his individual name, without description, or in his own name ex- pressly, in trust for, or on behalf of, or for the benefit of, another, bj' whatever form of expression such trust may be declared. It includes not only a person with whom, but one in whose name, a trustees of an express trust, see also 36 id. 375 ; Brooks v. Harris, 42 id. 177 ; Presb. Soc. of Knoxborow. Beach, 8 Hun, Wiley v. Starbuck, 44 id. 298 ; Washing- 644 ; Heavenridge v. Mondy, 49 Ind. 434 ; ton Townp. v. Bonney, 45 id. 77. 34 id. 28; North W. Conference v, Myers, 214 CIVIL REMEDIES. contract is made for the benefit of another." These definitions and descriptions of the term fully sustain the conclusions reached in the preceding paragraph as to the legal meaning of the phrase " trustee of an express trust." It is abundantly settled that an agent cannot sue in his own name to enforce an implied liability to liis principal ; if by any possibility he should be a trustee under such circumstances, he would not be the trustee of an express trust.i § 176. Having thus attempted to arrive at a general definition of the term, I shall proceed to consider the cases which are em- braced within it, and shall take at first those in which a " person with whom, or in whose name, a contract is made for the benefit of another " has sued in his own name. It is fully established by numerous decisions that when a contract is entered into expressly with an agent in his own name, the promise being made directly to him, although it is known that he is acting for a principal, and even although the principal and his beneficial interest in the agreement are fully disclosed and stipulated for in the very instru- ment itself, the agent in such case is described by the language of the statute, and may maintain an action upon the contract in his own name without joining the person thus beneficially interested.^ The following are particular instances, or examples ' Palmer v. Fort Plain, &c. Plank R. Co., defendant applied to the plaintiff for stock 1 1 N. Y. 376, 390, per Selden J. " There is in said corporation, and authorized the no covenant or agreement running to these plaintiflT to subscribe in his name for officers in terms. They, as agents of the such stock to the amount of -$10,000, and, town, conyey the right to use the higli- in payment of the subscription, gave way upon a certain condition. It is plaintiff two notes, each in the following virtually the act of the town through form : " New York, March 1, 1855. On them. If an implied covenant arises upon the first day of July, 1855, I promise to the instrument, it is a covenant with the pay V. Considerant, executive agent of town, and must be enforced by, and in the the company Bureau, Guillon, Goden, & name of, the town." Ruckman v. Pitcher, Co. the sum of ^5,000, for which I am to 20 N. Y. 9. " The agent may, in many receive stock of said company known as cases, sue upon express contracts, made premium stock, to the amount of $5,000, with himself by name. . . . But this im- value received. A. Brisbane." The plied duty or assumpsit arises only in plaintiff alleged that he had entered de- favor of those to whom the money in fact fendant's name as a subscriber; averred belonged, and therefore, cannot be en- a tender of the stock and a refusal to ac- forced in the name of another person to cept the same ; and sued in his own name whom the obligation is not due." on the notes. The Court of Appeals held 2 Considerant v. Brisbane, 22 N. Y. that he could maintain the action. The 389, reversing s. c. 2 Bosw. 471. The judgment of Wright J. is an exhaustive plaintiff was agent for a foreign corpora- discussion of the whole subject. Denio J. tion which did business under the name dissented, but not from the general rea- of " Bureau, Guillon, Goden, & Co." The soning as to the true interpretation of the TKUSTEE OF AN EXPRESS TRUST. 215 of particular classes of cases, in which an agent has been per- mitted to sue, or may always sue, in his own name, because the contract is made with him directly, although on behalf of a known principal: on a sealed lease between the plaintiff, as agent for the owner, of the first part, and the defendant as the lessee ;^ on a sealed contract between plaintiff and defendant, the plaintiff describing himself as agent for his sisters, and stipulating that they should act in defendant's theatre at specified wages, which the latter covenanted to pay, the action being brought for such wages ; ^ where the plaintiff, being the holder of the legal title to certain land, which he held, however, merely for the benefit of a married woman, was induced, by false representa- code. His dissent was based entirely upon it construction of the notes sued upon. He insisted tliat the promise in these notes was, in fact, made to tlie com- pany, and not to the agent ; and so the case did not fall within the terms of the statutory provision. Rowland v. Phalen, 1 Bosw. 43. Plaintiff sued on a contract in which he was described as " acting on behalf of I. S. and others," and stipula- tions were made by and with him. Chel- tenham Fire-brick Co. v. Cook. 44 Mo. 29. The defendants executed a. bond, wherein they bound themselves " to pay the said Cheltenham Fire-brick Co. for their own use and for the use of Evans and Howard, respectively," certain moneys under certain conditions. The company sued, alleging moneys due to it and also to Evans and Howard. Wright v. Tinsley, 30 Mo. 389. An agreement was entered into between Wright, the plaintiff, for the benefit of Mrs. Dawson, his daughter, and Tinsley, the defendant. "Wright obviously comes literally within this definition, and is the proper party plain- tiff." Weaver v. Trustees of the Wabash, &c. Canal Co., 28 Ind. 112; Rice v. Savery, 22 Iowa, 470, in which it was held that either the agent or the benefi- ciary might sue. See supra, § 140. Win- ters u. Rush, 34 Cal. 136. Action by Winters on the following note : " Twelve months after date I promise to pay W. M. Winters, or any authorized agent of the Pacific Methodist College, the sum of $1,150, for the endowment of said college." The court held the action to be properly brought in the name of the plaintiff, and approved of Considerant v. Brisbane. Ord u. McKee, 5 Cal. 515. Notes were given by defendant to "James L. Ord, agent of W. H. McKee, for the price of land owned by McKee, and sold to the defendant ; and a mortgage to secure the notes was given back directly to McKee. The action is by Ord to foreclose the mortgage. Held, that Ord could sue on the notes ; and, as the mortgage is a mere security for the payment of the notes and an incident of the debt, he could maintain the action to foreclose. Scantlin v. Allison, 12 Kans. 85, 88. A note was, by consent of all the persons interested, given to one who held it in trust for others. An action by this payee alone, without joining the beneficiaries, was sustained. And where A. was joint- ly interested with others in a claim, and made a contract in his own name with B., by which the latter agreed to collect the same, and account to him for the pro- ceeds, he was permitted to maintain an action against B. without joining the others as co-plaintiffs. Noe v. Christie, 51 N. Y. 270, 274. In Hubbell u. Med- bury, 53 N. Y. 98, the provision of the code was held to be permissive only, and not to prohibit an action by the bene- ficiary, even without the trustee. And see Presb. Soc. v. Beach, 8 Hun, 644; People V. Slocum, 1 Idaho, 62 ; Thomp- son V. Fargo, 63 N. Y. 479; 45 id. 188. 1 Morgan v. Reid, 7 Abb. Pr. 215. a Nelson v. Nixon, 13 Abb. Pr. 104. 216 CIVIL REMEDIES. tions, to execute a mortgage thereon, supposing it to be for her benefit and at her request, but in fact without any consideration paid to himself or to her, brought an action in his own name to restrain a foreclosure of the mortgage ; ^ in an action on a policy of marine insurance " for the account of whom it may concern," and in case of loss the amount insured to be paid to the plaintiff or order ; ^ where a promise was made to the admin- istrator of an estate, and he afterwards resigned, and another was appointed in his place, it being held that he was the proper party to sue ; ^ where a grantee in a deed of land was simply acting as agent for another, and the purchase price was paid with that other's money, the grantee is the proper party to sue for the breach of a covenant which was broken immediately upon the execution of the deed, e. g., a covenant against incumbrances ; * a guest at an inn who had property of another in his possession, which was lost, was held to be the proper party to sue for its value ; ^ an auctioneer may sue for the price of goods sold by him, whether he have any interest in the price or not, ^ and a sheriff, for the price of property sold by him on execution ; ^ the master of a ship or other vessel may maintain an action for freight, or on any contract concerning the ship, entered into on behalf of the owners,^ or for the taking and carrying away, conversion of, or injury to, the cargo.® § 176. Various kinds of bonds and undertakings generally re- quired by statute, and given to some designated obligee, although showing on the face that they are designed to protect, secure, or indemnify other persons, are also contracts made " with, or in the name of, one person for the benefit of another ; " and although the party immediately interested may in general sue in his own name,^° yet the obligee or person to whom the promise is made may always, unless forbidden by statute, maintain the action, and in some States is the only one who is permitted to do so. Among these are bonds in great variety given to the " people " or to the " State," conditioned upon the faithful discharge of 1 Browa v. Cherry, 38 How. Pr. 352. 5 Kellogg v. Sweeney, 1 Lans. 397. 2 Walsh V. Wash. Mar. Ins. Co., 3 ^ Minturn v. Main, 7 N. Y, 220, 224; Eobt. 202 ; Greenfield v. Mass. Mut. Ins. Bogart v. O'Regan, 1 B. D. Smith, 590. Co., 47 N. Y. 430. See also Sturm v. ^ Armstrong v. Vroman, 11 Minn. 220 ; Atlantic Mut. Ins. Co., 63 N. Y. 77; McKee v. Lineberger, 69 N. C. 217, 239. Waring v. Ind. Fire Ins. Co., 45 Id. 606. 8 Kennedy i-. Eilau, 17 Abb. Pr. 73. 3 Harney v. Butcher, 15 Mo. 89. 9 Houghton v Lynch, 13 Minn. 85. 4 Hall V. Plaine, 14 Ohio St. 417, 423. W See supra, §§ 139, 141. TRUSTEE OF AN EXPRESS TRUST. 217 their duties by public, local, or municipal officers, actions on which, except -when otherwise directed by statute, may be brought by the people or the State ; ^ bonds running to the people or to the State, conditioned upon the faithful discharge of duties by various private or semi-private trustees, or by persons appointed in judi- cial proceedings and the like, such as those given by adminis- trators, executors, or receivers ; ^ those given by the trustees of an estate, although entirely for the benefit of the persons having an interest in the estate ; ^ bastardy bonds* and the like ; bonds given directly to a sheriff or other superior officer to indemnify a deputy sheriff or other subordinate officer against the conse- quences of acts done in the discharge of the latter's official duties;^ a bond given by a town superintendent of common schools to the supervisor of the town, an action on which must be brought by the supervisor or his successor in office.^ § 177. In all the instances heretofore mentioned, the contract has been made with an agent in his own name, and the promise given to him, although the principal or beneficiary was known, and even expressly designated and provided for by the terms of the agreement. The rule is the same, and even more emphat- ically so, if the principal or beneficiary is, at the time of the contract unknown or undisclosed, or not mentioned in the instru- ment. When a contract, even in writing, is made with and by an agent, and no mention is made of any principal or beneficiary, but the other contracting party supposes he is dealing with the former on his own private account, but in fact such person is an agent for an undisclosed principal and enters into the agreement in the course of his agency, actually effecting the contract on behalf of that superior behind him, the rule is well settled that the one who was thus a direct party to the agreement — the actual agent — may bring an action upon it in his own name, or the principal may sue in his name.' 1 Hunter v. Commissioners of, &c., 10 porter's head-note reads should be sued by- Ohio St. 515 (county treasurer's bond the people : this is more than was decided, running to the State) ; Slate v. Moore, Baggott v. Boulger, 2 Duer, 160. The 19 Mo. 369 (sheriff's bond) ; Meier v. bond may also be prosecuted by the per- Lester, 21 Mo. 112 (constable's bond) ; son interested and benefited. Shelby Co. v. Simmonds, 33 Iowa, 345 » People v. Norton, 9 N. Y. 176, 179. (county treasurer's bond running to the * People v. Clark, 21 Barb. 214. county). ' Stilwell v. Hurlbert, 18 N. Y. 374, 2 People 1^. Laws, 8 Abb. Pr. 450; 875. Annett v. Kerr, 28 How. Pr. 324 ; People « Fuller w. PuUerton, 14 Barb. 59. V. Townsend. 37 Barb. 520. The re- ' Erickson v. Compton, 6 How. Pr. 218 CIVIL EEMEDIES. § 178. I have thus far considered only the particular class of trustees of an express trust specially described in some of the codes as "persons with whom or in whose name a contract is made for the benefit of others." There are numerous other and more properly designated classes of such trustees ; and whatever be their nature, or the object of the trust, they may, by virtue of this section of the statute, maintain an action in their own names. They are generally created or appointed by some instrument in the nature of a grant or conveyance, or they may be appointed in judicial proceedings by a court. Although the rule is simple and peremptory that these trustees may sue without joining the bene- ficiaries, the following instances in which the rule has been ap- plied may be enumerated : assignees, general or special, in trust, to pay creditors ; •' the assignees of a contract in trust to re- imburse out of the proceeds thereof third persons for advances made ; ^ trustees appointed to take and collect subscriptions for colleges and other similar purposes ; ^ a receiver appointed in another State ; * the grantee of lands in trust for the use and benefit of another is the proper party to sue for possession or for damages by trespass or other injury ;° a person who agreed to hold notes and a mortgage for the benefit of another, and to apply the proceeds thereof when collected in payment of a debt owed by himself to that other, may sue to enforce the securities ;? the assignee of a stock subscription, who holds it for the benefit of a bank, is the proper party to bring an action upon it ; '^ a person to whom chattels had been transferred for the benefit of a married woman in trust, to permit her to have exclusive use 471 ; Grinnell v. Sclimidt, 2 Sandf. 706 ; Cravens, 47 Ind. 4. See Lathrop v. Union India Rubber Co. v. Tomlinson, 1 Knapp, 37 Wis. 307. E. D. Smith, 364 ; Van Lien u. Byrnes, * Runk v. St. John, 29 Barb. 585 ; per 1 Hilt. 133; Higgins v. Senior, 8 M. & contra, Hope Life Ins. Co. v. Taylor, 2 W. 834 ; Sims v. Bond, 5 B. & Ad. 389, Robt. 278. See Lathrop v. Knapp, 37 393, per Lord Denman. In ordinary con- Wis. 307 ; Garner v. Kent, 70 Ind. 428. tracts made by agents for their principals, ^ Goodrich v. Milwaukee, 24 Wis. 422 ; the latter are the real parties in interest, Boardman v. Beckwith, 18 Iowa, 292, 295. and must sue. Swift u. Swift, 46 Cal. See Holden v. N. Y. & Erie Bank, 72 266, 269. N. Y. 286, 297 ; Tyler v. Granger, 48 Cal. 1 Lewis V. Graham, 4 Abb. Pr. 106 ; 259 ; McKinnon v. McKinnon, 81 N. C. St. Anthony's Mill Co. v. Vandall, 1 201. Minn. 246. See Foster v. Brown, 65 Ind. * Gardinier v. Kellogg, 14 Wis. 605. 234. See Davidson v. Elms, 67 N. C. 228; 2 Cummins ». Barkalow, 4 Keyes, 514. Thompson v. Toland, 48 Cal. 99, 114; 8 Slocum V. Barry, 34 How. Pr. 320 ; Moorehead o. Hyde, 88 Iowa, 382. Dix V. Akers, 30 Ind. 431 ; Musselman v. ' Kimball v. Spicer, 12 Wis. 668. ACTIONS BY PUBLIC OFFICERS. 219 and possession, and to dispose of them by her direction, is the proper partj^ to bring an action to restrain interference with or disturbance of her possession.^ It has been held in Kentucky that where a raikoad company issued bonds which were held by many different persons, and executed a mortgage to a trustee for the purpose of securing such bonds, this trustee, who was the sole mortgagee named in the instrument, could not maintain an action in his own name alone to foreclose the mortgage on account of the non-payment of the money due on the bonds, but he must join the bond-holders as parties plaintiff with himself.^ The correctness of this decision may well be doubted in the hght of the other cases above cited, which uniformly proceed upon a different doctrine. § 179. Many public officers are authorized by law to bring actions in their own names, and by virtue of their official char- acter, in respect of matters falling within the scope of their official functions. As this subject is entirely regulated by special statutes, which greatly vary in different States, and as it is not in fact a portion of the general civil procedure, but rather a mat- ter exceptional and collateral thereto, I shall not attempt any discussion of the cases in which such officers may sue, but shall simply mention a few decisions which may have some general interest. Actions by public officers suing as such should be brought in their individual names, but with their official titles added ; ^ but the mere use of the official title will not be enough, without the proper averments of the official character in the pleadings ; in the absence of such averments, the title will be regarded as only a description of the person.* In New York, counties cannot sue nor be sued. All actions and judicial pro- ceedings in favor of or against counties, except those which some 1 Reed v. Harris, 7 Robt. 151. Dam v. Frings, 17 id. 398 ; Supervisors ■^ Bardstown, &c. E. R. v. Metcalfe, 4 v. Kirby, 25 id. 498; Butcher y.Dutuher, Mete. (Ky.) 199. 39 id. 651 ; Town of Pine Valley v. Town 3 Paige V. Fazackerly, 36 Barb. 392. of Unity, 40 id. 682 ; La Crosse v. Melrose, As to actions by towns, counties, super- 22 id 459 ; School Directors v. Coe, 40 visors, and similar officers, see Hathaway id. 103 ; Supervisors v. Hall, 42 id. 59 ; V. Town of Cincinnatus, 62 N, Y. 434 ; Lafayette Co. v. Hixon, 69 Mo. 581 : Town of Lewis v. Marshall, 56 N. Y. Vandersall v. The State, 65 Ind. 176 ; 663 ; Town of Guilford v. Cooley, 58 id. Garner v. Kent, 70 id. 428 ; Coram'rs a. 116; Town of Chautauqua a. Gifford, 8 Lineberg, 3 Mont. 31; San Benito Co. v. Hun, 152 ; Sutherland v. Carr, 85 N. Y. Whitesides, 51 Cal. 416. 104; Hagadom v. Raux, 72 id. 583; < Gould w. Glass, 19 Barb. 179. Cairns v. O'Bleness, 40 Wis. 469 ; Beaver 220 CIVIL EEMEDIES. county officer is expressly authorized to maintain in his own name for the benefit of the county, must be brought by or against the " Board of Supervisors " of the county named, as an organized unit, and by that designation, and not against the supervisors individually;^ but when the action is by or against the super- visors, not as the immediate representatives and in the place of the county, it must be brought by or against them individually, with their title of office added.^ The rule in respect to towns in New York is different. They are municipal corporations, and must sue and be sued by their corporate name, except in the few cases where town officers are expressly authorized by statute to sue in their name of office for the benefit of the town.^ In ac- cordance with this rule, where the supervisor and commissioner of highways had entered into a contract on behalf of the town, which contained no promise to or undertaking with themselves, as such officers, it was held that they could not maintain an action upon it in their joint names, but the action should have been by the town, as the real party in interest.* The Secretary of State for the War Department of Great Britain was permitted to sue in his individual name to recover public moneys which had been embezzled by a subordinate official, it being shown that by the British statute the property was vested in him as such secretary.^ The " Metropolitan Fire Department," a commission created by statute for the city of New York, is declared to be a quasi corporation, capable of suing and being sued, and not a mere official agency of the municipality.® § 180. Hardly any attempt has been made by the courts to determine in a general manner the classes of persons who fall within the designation of " expressly authorized by statute " to sue. The Supreme Court of Indiana in one case made an ap- proach towards such an interpretation. In an action upon a promissory note by the assignee thereof, his right to sue was denied by the defendant. The evidence tended to show that he was not the real party in interest. To meet this objection, he 1 Hill V. Board of Supervisors of Liv- Co., 11 N. Y. 376, 390, per Selden J. " A jngston County, 12 N. Y. 52 ; Magee v. town is a political corporation, and suits Cutler, 43 Barb. 239. in its behalf must be prosecuted in the 2 Wild V. Board of Supervisors, 9 How. name of the town." See supra, § 174. Pr. 315, per Harris J. 6 Peel v. Elliott, 7 Abb. Pr. 433. 8 Town of Duanesburgh v. Jenkins, 46 n Clarissy v. Metropolitan Fire Dep., Barb. 294. 7 Abb. Pr. N. s. 362. * Palmer v. Fort Plain, &c. Plank K. PERSONS AUTHORIZED BY STATUTE TO SUE. 221 invoked a prior general statute, which expressly provides that indorsees and assignees of bills and notes may sue in their own names, and urged that he was thus brought directly within the class of " persons expressly authorized by statute " mentioned in the section of the code under consideration. The court, however, refused to adopt this construction of the code. It said : " Is the assignee of a note who holds it as such, without any real interest, one of that class of persons here referred to as being ' expressly authorized by statute to sue ' ? or does the provision have refer- ence to another class of persons, such as the guardians of an idiot, &c.? We are of the opinion that the clause of the section above quoted does not have reference to the rights of an assignee of a promissory note, but to such persons as may be authorized to sue in their own names because of holding some official position, as the president of a bank, the trustee of a civil township, and the like." ^ There have been held embraced within the same class, not only the presidents and other managing officers of joint-stock associations for business purposes, but also similar officers of some voluntary societies organized for purposes not connected with business, when the action is brought on behalf of, or in relation to matters belonging to, the society, and among other instances the following : a suit brought by the president of a voluntary unincorporated religious and missionary association to recover a legacy bequeathed to it ; ^ by the treasurer of a division of the Sons of Temperance, a voluntai-y social organization ;3 by the president of a bank of which he was the nominal proprietor, all the contracts and transactions being in his name as such pro- prietor ;* by the trustee of the "Pittsburg Trust Company," an unincorporated business association, in an action brought to recover damages for negligence in not protesting a bill of ex- change belonging to such association, by which the amount thereof was lost.^ An officer of the Bank of England was per- mitted to sue in New York upon a bill of exchange belonging to the bank, by showing that the statutes of England authorized 1 Swift V. Ellsworth, 10 Ind. 205, per 3 Tibbetts v. Blood, 21 Barb. 650 ; ex- Hanna J. pressly holding that these statutes are not 2 De Witt V. Chandler, 11 Abb. Pr. 459 confined to business associations. (General Term). It was held that the * Burbank v. Beach, 15 Barb. 326. action might be maintained under stat- * Laughlin v. Greene, 14 Iowa, 92, 94. utes of 1848, 1849; citing Tibbetts v. The plaintiff was said to be a trustee of Blood, 21 Barb. 650. an express trust. 222 CIVIL REMEDIES. liim to bring an action.^ On the other hand, it has been held in the same State that an action brought by a person as foreman of a certain named fire company — unincorporated — could not be maintained ; that the provisions of the code and of other statutes authorizing suits in the name of officers of unincorporated bodies do not apply to such societies as fire companies.^ If the doctrine stated by the Indiana court cited above be taken as the correct interpretation of the clause, it follows that the whole section provides for three classes of persons who may sue in their own name, although not the real parties in interest ; namely, first, those with whom, or in whose name, a contract is made for the benefit of another, to whom the promise is directly given, and who sue because they are the actual promisees ; secondly, trustees proper of an express trust, who, by virtue of being trustees, have an interest in or title to some property which is the subject-matter of the trust ; and, thirdly, certain persons clothed with authority to do various acts for, or in behalf of, others, but who are not vested with any interest in or title to property, so as to render them trustees in the strict meaning of that term, and who are authorized by various statutes to maintain actions in the exercise of their personal authority, such as officers of voluntary societies, guardians, or committees of the person, and the like. § 181. That executors and administrators can maintain actions relating to the estate in their own names alone, is a proposition too familiar and elementary to require discussion or the citation of authority. Although in general a foreign executor or admin- istrator cannot sue as such in the courts of another State or coun- try than that in which he was appointed, yet, if the objection is not raised by answer or demurrer, it is waived under the codes of procedure ; that is, the objection goes simply to the parties' capacity to sue, and not to the cause of action set up in the com- plaint or petition.^ In California, lands owned in fee by the de- ceased do not descend at once to his heirs or pass to his devisees, but go with the personalty into the estate in the hands of his 1 Myers v. Machado, 6 Abb. Pr. 198. Duncan v. Whedbee, 4 Col. 143 ; MuUin's " Masterson v. Botts, 4 Abb. Pr. 130 Appeal, 40 Wis. 154 ; Hart v. Houchin, (Sp. T.). 50 Ind. 327; Wright's Adm'r v. Wright, 8 Robbins <;. Wells, 18 Abb. Pr. 191. 72 Ind. 149 (A., as administrator of B.'s As to foreign administrator, see Connor's estate, can sue A. as administrator of C.'s Adm'r v. Paul, 12 Bush, 144 ; as to exe- estate) ; Ham v. Henderson, 50 Cal. 367 ; cutors and administrators generally, see Cashman v. Wood, 6 Hun, 620. ACTIONS BY GUABDIANS. 223 administrator or executor as a part of the assets to be administered upon. Any action, therefore, relating to such land, — to recover its possession, or damages for injuries done to it, or rents, or the like, — brought at any time before a final settlement of the estate and distribution thereof, must be prosecuted by the administrator or executor alone.^ In an action by the administrator of a mort- gagee, brought to foreclose the mortgage, the heir of the mortgagee is not a proper party to be joined as a co-plaintiff. In California, as in New York, the mortgage is a mere security, incident and collateral to the debt, and belongs wholly to the personalty .^ § 182. How far general guardians of infants, testamentary or appointed by the probate courts, are authorized to maintain ac- tions in their own names, relating to the personal property of their wards, depends rather upon the provisions of the statutes which define their powers and duties than upon those of the codes. The codes in general can hardly be deemed to have enlarged their powers in this respect. In a few States, the guardian is specifically mentioned and coupled with the executor and admin- istrator in the section of the statute under consideration; and this language may be interpreted as authorizing him to sue in respect of all property which is under his control by virtue of his office.^ In New York, it has been determined by the Supreme Court in a very carefully considered case, the decision, however, being rested upon a construction of the Revised Statutes, and not of the code, that the general guardian may bring all actions in his own name respecting the personal property of the ward and the rents and profits of his real estate.* This same power is expressly conferred upon him by the statutes of certain States.^ On the other hand, it is held in Kentucky that, while the guar- ^ Curtis V. Herrick, 14 Cal. 117 ; Meeks in suit by infant by a guardian ad litem). V. Hahn, 20 Cal. 620 ; Grattan v. Wiggins, A general guardian may sue, Hauenstein 23 Cal. 16 ; Emeric v. Penniman, 26 'Cal. v. KuU, 59 How. Pr. 24 ; Fox v. Kerper, 119. 51 Ind. 148 ; and see Carrillo v. McPhil- 2 Grattan v. Wiggins, 23 Cal. 16. lips, 65 Cal. 130 ; per contra he cannot sue ^ This interpretation is given to the in his own name, Vincent v. Starks, 45 language of the code by the Supreme Wis. 458. Court of Indiana in Shepherd ». Evans, 9 * Thomas v. Bennett, 56 Barb. 197 ; Ind. 260, which holds that, by virtue of Seaton v. Davis, 1 N. Y. Sup. Ct. 91 ; and the provision, the guardian is empowered see White v. Parker, 8 Barb. 48, 52 ; to bring such actions in his own name. Mebane v. Mebane, 66 N. C. 334 ; Biggs See Wilson v. Houston, 76 N. C. 375 (when v. Williams, 66 N. C. 427. wards are necessary plaintiffs) ; Crawford 6 gee E. S. of Wis. ch. 112, §§ 23, 47. V. Neal, 56 CaL 821 (necessary allegations 224 CIVIL REMEDIES. dian, who has taken a note expressly made to himself as payee for moneys belonging to the ward, may prosecute an action thereon, because the promise is given directly to him, he cannot sue in respect of his ward's property in general, since he has no estate or interest therein ; such actions must be brought in the name of the infant.^ The statutes which provide for the appoint- ment of guardians or committees over the property of lunatics, confirmed drunkards, and other such persons not sui Juris, gen- erally confer upon them the same powers that are given to the general guardians of infants, and a similar rule should therefore prevail in reference to their prosecution of actions. Although there is some conflict in the decided cases, yet, as these guardians or committees do not acquire any estate or interest in the property subjected to their control, but only a power of possession and management, the correct doctrine upon principle would seem to be that thej"^ cannot maintain actions concerning it in their own names, unless expressly authorized to do so by statute ; other actions may be brought by them.^ SECTION SIXTH. "WHO MAY BE JOINED AS PLAINTIFFS. § 183. The following are the provisions relating to the joinder of parties plaintiff in one action found in the various State codes, 1 Anderson v. Watson, 3 Mete. (Ky.) court, says : " The rule undoubtedly was, 509. and still is, at law, where the action is 2 King V. Cutts, 24 VFis. 625 ; MoKil- brought to assert the title of the lunatic lip V. McKillip, 8 Barb. 552. But, per con- to real and personal property, it must be ira, see Person w. Warren, 14 Barb. 488, brought in his name, as held in McKillip which expressly holds that the committee v. McKillip, 8 Barb. 552." He cites the is a '■ trustee of an express trust " within laws of 1845, ch. 112, which authorize the the meaning of the code. The whole sub- committee to sue for any debt, claim, or ject was discussed and determined in the demand transferred to them, or to the pos- very late case of Fields v. Fowler, 4 N. Y. session and control of which they are en- Sup. Ct. 598. The action was brought titled ; also Gorham u. Gorham, 3 Barb, by the committee of the person and es- Ch. 32 ; Ortley v. Messere, 7 Johns. Ch. tate of a lunatic to set aside the sale of a 189, and § 111 of the code, and reaches farm made by defendant to the lunatic, the conclusion that the equity rule as to to cancel the satisfaction of a mortgage parties is controlling in actions of this which had been executed by him, and kind. The decision in Person v. Warren, also a check which he had given on such 14 Barb. 488, is expressly approved and sale. The action was held to be properly followed. S. P. Bearss v. Montgomery, brought by the committee. E. Darwin 46 Ind. 544. Smith J., in giving the opinion of the UNION OF PLAINTIFFS: COMMON-LAW RULES. 225 and it will be seen that there is an absolute identity of language in all the legislation upon this subject. " 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 pro- vided in this title." ^ This is the important section ; but the fol- lowing one somewhat enlarges its scope and effect in certain cases : " Of the parties to the action, those 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 a defendant, the reason thereof being stated in the complaint [petition]." ^ The particular statutory rules relating to married women as parties, and prescribing when wives may sue alone or when husbands must be joined, will be stated in a subsequent portion of this section. Many of these special enactments are not found in the codes of procedure, but in separate and independent legislation. § 184. The Common-law Rules. Before entering upon the interpretation of these statutory provisions, and before discussing the doctrine of parties plaintiff with respect to their uniting or severing in an action in the reformed American system of proce- dure, it will be advantageous and even necessary to state in a brief but comprehensive manner the rules which prevailed at the com- mon law, unchanged by legislation. The common law, in respect to the union of defendants, divided liabilities into joint, joint and several, and several ; in respect to the union of plain- tiffs, it divided all rights into joint, and several. The require- ments that all the persons jointly interested should unite as plaintiffs in any action brought to maintain the interest, and that, in the case of a several right, each separate holder of it should sue alone, were very peremptory, and upon them were based the form, extent, and even possibility of the judgment to be recovered. I New York, § 117 (446) ; Ohio, § 34; 2 New York, § 119 (448) ; Indiana, Indiana, § 17 ; Kansas, § 35 ; California, § 10 ; California, § 382 ; Wisconsin, cli. §§ 378, 381 ; Missouri, art. 1, § 4 ; Wiscon- 122, § 20 ; Tlorida, § 70 ; Soutli Carolina, sin, eh. 122, § 18 ; Iowa, § 2545 ; Nebraska ; § 142 ; Dacota, § 72 ; Oregon, § 381, but § 87; Florida, § 68; Kentucky, § 34; limited to equity actions ; Nevada, § 14; South Carolina, § 140; Nevada, § 12; Ohio, § 36 ; Kansas, § 37 ; Iowa, § 2648; Dacota, §70; Oregon, § 380, but limited Nebraska, § 39; Kentucky, § SB; Mis to equitable actions ; North Carolina, souri, art. 1, § 6 ; North Carolina, § 62 ; § 60; Idaho, § 12; Washington, § 8; Idaho, § 14; Washington, § 8; Montana, Montana, § 12; Arizona, § 12; Wyo- § 14 ; Arizona, § 14 ; Wyoming, § 42. ming, § 40. 15 226 CIVIL REMEDIES. All the possible occasions from which could arise the two classes of rights, joint or several, and which could give an opportunity for the distinction into these two classes, are (1) contracts in which the rights of the obligees, covenantees, or promisees may be joint or several ; (2) wrongs to person, character, or property, not consisting in the breach of contracts; (3) property in land, in respect of which there may be joint ownership, ownership in common, and several ownership ; (4) property in chattels, in respect of which there may be joint ownership, ownership in common, and several ownership. These are all the occasions which can giv'e rise to joint or several rights. But the possessors of the rights which spring into existence upon these occasions may themselves be separated into two classes, — those who hold of their own right, and those who hold in a representative character or capacity, as executors, administrators, and trustees of all kinds. To these must also be added the special case of husband and wife ; and it is to be determined when they should be united as plaintiffs and when the husband should sue alone. I shall take up these classes in the order indicated, and shall state the common- law rules in reference to the union or severance of parties plain- tiff in a legal action, as laid down by text-writers of the most approved authority, but without any discussion of the doctrine or illustration by examples. § 185. First, the rights which arise from contracts. When a contract, either sealed, written, or verbal, is made with two or more persons, and their legal interest therein is joint, all the obli- gees, covenantees, or promisees, if living, and as many as are living, must join as plaintiffs, even though the covenant or prom- ise to them is in terms joint and several. The interest spoken of is not the interest which will be had in the sum of money or other benefit promised when the agreement is performed, but the interest in the contract, the legal, technical interest created by the terms of the very agreement.^ This rule as to the union of parties, plaintiff in an action brought upon a joint contract being thus universal and peremptory, it becomes a matter of the utmost importance to determine when a contract is thus joint ; when the 1 1 Chitty PI. Springfield ed. 1840, p. 7 ; James c. Emery, 5 Price, 529 ; Hatsall 8 a ; Eccleston v. Clipsham, 1 Wm. Saund. v. Griffith, 4 Tyr. 487 ; Wright v. Post, 153, n. 1 ; Anderson v. Martindale, 1 3 Conn. 142. East, 497, 501 ; Hill v. Tucker, 1 Taunt. UNION OF PLAINTIFFS: COMMON-LAW RULES. 227 rights of the promisees, or their legal interest in the contract, is joint, and not several. In general, if a promise is made to two or more persons, the right is presumptively joint ; a several right is the exception. No express joint words, therefore are necessary but some words indicating such an interest must be used to create a several right. A mere promise to A. and B. always creates a joint right,^ even though the share of the money promised which each is to have is designated.^ The following examples of con- tracts in which the rights and interests were held to be joint are given as illustrations of this general doctrine. Where one of a firm of bankers had loaned money, all the partners may join in an action to recover it.^ An agent of three part-owners of a ship sold the vessel, and paid over their respective shares of the price to two of them ; it was held that the three must unite in an action to recover the other share, payment of wliich had been refused ; the implied promise was to all the owners jointly.* A. conveyed land to several persons, and in the deed covenanted with them, " and to and with each and every of them," that he was lawfully seised ; all the grantees were required to join in an action on this covenant.^ When one covenants with A. and B. to pay a sum of money to A., both must unite in a suit to recover the money ; there is & joint interest in the contract, although A. is the only one interested in the benefit which is to result from its performance.^ The interest of the promisees or covenantees is the important, and, as the rule is laid down by the text-writers and by most of the cases, the sole, criterion by which to decide whether the right is joint or several. If this interest — that is, the legal interest in the contract — is joint, the right is joint; if several, the right is several. It has been said that no language of the agreement, indicating that the right is to be several, will avail when the interest is clearly joint, and no language will avail to make the right joint, when the interest is clearly several.' Some English cases, however, have modified this doctrine, and have denied that the interest is to be the sole criterion, holding that the express 1 Hill V. Tucker, 1 Taunt. 7 ; King v. ^ Slingsby's Case, 5 Rep. 18 h, 3 Lev- Hoare, 13 M. & W. 499, per Parke B. ; inz, 160, Dyer, 337. Yorks V. Peck, 14 Barb. 644. « Anderson v. Martindale, 1 East, 497. 2 Lane v. Drinkwater, 1 C. M. & R. 7 gee the foregoing cases ; also Hop- 599 ; Byrne v. Fitzhngh, 1 Id. 613, n. kinson v. Lee, 6 Q. B. 971, 972, per Lord 3 Alexander v. Barker, 2 Tyr. 140. Denman ; Withers v. Bireham, 3 B. & C. * Hatsall V. GriflSth, 4 Tyr. 487. 254 ; Servante v. James, 10 B. & C. 410. 228 CIVIL REMEDIES. language may control the effect of the interest.^ There is no such thing as a joint and several right as there is a joint and sev- eral liability. It is either several, so that each of the promisees must sue separately ; or joint, so that all must sue together. The parties never have the option to sue jointly or severally at their pleasure.2 When a contract is made with a partnership, all the members of the firm must join ; even when the promise is nomi- nally to one of the partners alone, if it is intended for the benefit of all, all must sue.^ A dormant partner, however, need not be joined.* § 186. Where the legal interest in the contract or the cause of action is several, the covenantees or promisees must sue separately, although the agreement is in its terms joint.^ The following are some illustrations of contracts in which the inter- ests and the consequent rights of action are several. If a man demises Whiteacre to A. and Blackacre to B., and covenants with them and with each of them — or even, it seems, if he covenants with them in express terms jointly — that he is the owner of the closes, each must sue separately in respect of his distinct inter- ests ; they cannot sue jointly, for they have no joint or entire interest in the same subject-matter.® If a person promises A. and B. to pay a different sum to each, although the mere terras of the promise are joint, tlie interest is several, and each must sue sep4 arately.'^ A fortiori, if, instead of one promise to all, there are separate promises of distinct sums to each in the same instru- ment, the interest and consequent rights will be several.^ When • 1 Sorsbie V. Park, 12 M. & W. 146, 157, * Clark v. Miller, 4 Wend. 628 ; Clark- per Lord Abinger, p. 158, per Parke B. ; son v. Carter, 3 Cow. 85 ; Lord v. Bald- Mills V. Ladbroke, 7 Man. & Gr. 218 ; win, 6 Pick. 348, 352 ; Leveck v. Stiaftoe, Bradburne o. Botfield, 14 M. & W. 559, 1 Esp. 468 ;- Lloyd v. Archbowle, 2 Taunt. 572 ; Keightley v. Watson, 3 Exch. 716. 324. • 2 Slingsby's Case, 5 Kep. 19 a ; Eccle- 6 Slingsby's Case, 5 Uep. 18 b ; Eccle- ston u. -Clipsham, 1 Wm. Saund. 153; stonw. Clipsham, 1 Wm. Saund. 153, n. 1 ; Petrie v. Bury, 3 B. & C. 353 ; Scott v. James v. Emery, 5 Price, 529 ; James «. Godwin, 1 B. & P. 67, 71; James v. Emery, 8 Taunt. 245 ; Dunham «. Gillis, 8 Emery, 5 Price, 533, per Gibbs C. J. ; Mass. 462 ; Baker v. .Jewell, 6 Mass. 460 ; Foley r. Addenbroke, 4 Q. B. 197 ; Height- Gould v. Gould, 6 Wend. 263 ; 1 Ch. PI., ley V. Watson, 3 Exch. 721, per Pollock same ed., p. 10. C. B., p. 723, per Parke B., p. 726, per « Cases cited in last note, and Withers Kolfe B. Most of these cases arose upon «. Bircham, 3 B. & C. 254. covenants, but the same rules certainly ' Ibid. apply to simple contracts. s Servants v. James, 10 B. & C. 410 ; 8 1 Ch. PL, same ed., p. 11 ; Garrett Ford v. Bronaugh, 11 B. Mon. 14. V. Handley, 4 B. & C. 664. UNION OF PLAINTIFFS: COMMON-LAW EULES. 229 thi'ee persons were assignees of a bankrupt, and two of them paid one-half each of the attorney's bill, it was held that they could not maintain a joint action against the third for his proportion of the money paid ; each was interested alone in the implied prom- ise to refund to him a portion of the money he had advanced.^ But if the two had borrowed on their joint account the money which they paid, or if their attorney had paid it for them on their joint account, they would have had a common interest in the entire sum paid, and in the implied promise to repay, and could have maintained a joint action for it.^ § 187. Joint owners of land must sue jointly upon any con- tract relating to the estate.^ When owners in common, even if holding by distinct titles, jointly let, reserving an entire rent, they may and perhaps must unite in 'an action to recover the rent ; * but if the rent be reserved to them separately in distinct parts, they must sue separately.^ § 188. If of the joint obligees, covenantees, or promisees, one dies, the action must be brought by the survivors ; the execu- tors or administrators of the deceased cannot be joined as co- plaintiffs, nor can they sue separately. If all die, the suit must be by the personal representatives of the last survivor. If, how- ever, the right is several, the executors or administrators of the decedent may bring an action, although the others are living.^ The consequences of a non-compliance with these rules were at the common law very serious. If a plaintiff omitted to join another as co-plaintiff who should have been joined, or if persons were improperly joined as co-plaintiffs, and the error appeared upon the face of the pleadings, it was fatal on demurrer, or in arrest of judgment, or on a writ of error. If the error did not appear on the face of the pleadings, the defendant might take advantage of it either by a plea in abatement, or by a motion for a nonsuit at the trial, or by proof under the general issue.'^ 1 Brand v. Boulcott, 3 B. & P. 235. Barnby, 5 T. R. 249 ; Powis v. Smith, 5 See Yates v. Frnot, 12 Johns. 1 ; Gould v. B. & A. 851 ; Wilkinson u. Hall, 1 Bing. Gould, 8 Cow. 168. N. C. 713. 2 1 Ch. PI., sameed.,p. 11 ; Osborne v. * Ibid.; Bac. Abr. Joint Tenants, K. Harper, 5 East, 225; Doremus v. Selden, ^ 1 Ch. PI. same ed., p. 19; Rolls v. 19 Johns. 213, 217. Yate, Yelv. 177 ; Anderson v. Martindale, 3 1 Ch. PI., same ed., p. 13; Bac. Abr. 1 East, 497; Stowell's Administrator v. Joint Tenants, K. ; Scott v. Godwin, 1 B. Drake, 3 Zabr. 310; Shaw v. Sherwood, & P. 67. Cro. Eliz. 729. * 1 Ch. PI., same ed., p. 13 ; Martin v. ? 1 Ch. PI. same ed., p. 13 ; Armine v. Crompe, 1 Lord Rayra. 340; Harrison v. Spencer, 4 Wend. 406; Baker v. Jewell, 230 CIVIL REMEDIES. § 189. Second. Rights which arise from Torts to Property, Per- son, or Character. Persons jointly entitled, or having a joint legal interest in the property or other rights affected by the tort, must join in actions brought to recover damages therefor. On the other hand, when the interest and right, and the damage are both several, each person who has suffered the wrong must sue separately. In accordance with this principle, two or more plaintiffs cannot, in general, sue for torts to the person or character, such as assaults and batteries, false imprisonments, libels, slanders, and the like. But if a joint right is invaded by a personal wrong, and joint damage is done thereby, the injured parties may unite in the action ; as, for example, partners may sue jointly for a libel or slander upon the firm as such, by which injury is done to the common business.^ § 190. Joint owners and owners in common of personal prop- erty must unite in actions brought to recover damages for any injuries to it, or for the wrongful taking or conversion of it, and in actions to recover its possession ; but persons having a several interest must sue separately.^ Joint owners of land must unite in all real actions relating to it, and also in all personal actions. Owners in common must, however, in general, sever in real actions to recover their interests in the land, and in the action of ejectment ; but in personal actions for injuries, such as trespass, nuisance, and the like, they may join. It was the rule in New York, however, that tenants in common might declare in eject- ment upon a joint demise.^ In all these actions ex delicto, for torts to person or property, the objection to a wow-joinder of proper parties plaintiff, when it existed at all, could only be taken advantage of by a plea in abatement, or by an apportion- ment of damages at the trial; the defendant could not demur, nor move for a nonsuit, nor prove the defect under the general issue. If, however, the objection was to the »?i«s-joinder of im- proper parties plaintiff, the same rules prevailed as in actions ex contractu.^ § 191. Tliird. The Case of Eusband and Wife. As the wife's chattels became absolutely the property of the husband at the 6 Mass. 460 ; Converse v. Symmes, 10 2 1 Ch. PL, same ed., p. 65. Mass. 377 ; Dob v. Halsey, 16 Johns. 34. 3 ibid. 1 1 Ch. PI., same ed., p. 64 ; Cole v. 4 ibid. p. 66. Turner, 6 Mod. 149; Gazynski o. Col- burn, 11 Cush. 10. COMMON-LAW THEORY OF JOINT EIGHT. 231 marriage, actions for the recovery of such chattels belonging to the wife prior to the marriage must be brought in the name of the husband alone. Things in action which had belonged to the wife did not become the absolute property of the husband by the mere fact of marriage, and if he died before reducing them to his possession, and before her death, they survived to her. Tlie rule therefore was, that in actions upon such demands the hus- band and wife must unite as coplaintiffs, as also in an action to recover rent which had accrued to her before the marriage. For rent or other cause of action arising during the coverture on a lease, or on any other contract relating to the wife's land, the parties might join, or the husband might sue alone at his elec- tion.i In actions for injuries to the wife's person or to her prop- erty, real or personal, done before the marriage, when the cause of action would survive to her after his death, both must join as plaintiffs ; except, as has just been said, in detinue or replevin for chattels which had belonged to the wife, but which had become the husband's by an absolute ownership, he must sue alone. For any personal injuries to the wife during the marriage, — assault and battery, false imprisonment, libel, slander, and injuries through negligence or want of skill, and the like, — she could never maintain an aption in her own name ; the husband and wife must sue jointly to recover damages for the wrong inflicted upon her, for her sufferings bodily and mental, while for damages sustained by him by reason of the deprivation of her society, or by reason of the expenses to which he was put, and the like, the husband must sue alone.^ Finally, for torts committed to the wife's personal property during the marriage the husband only could sue ; both must unite in real actions or in ejectment to recover her lands ; while in actions to recover damages for torts done to her lands during the coverture, the wife might be joined as a co-plaintiff, or the husband might sue alone.^ § 192. The foregoing rules of the common law, although arbitrary and technical in the highest degree, and although sup- ported only by that sort of reasoning in which the old law so much delighted, and which consisted in the repetition of verbal formulas without any real meaning, were maintained and enforced without exception, and with little or no variation, until the adop- 1 1 Ch. PI., same ed., pp. 28, 29. 3 Ibid. p. 74 2 Ibid. p. 73. 232 CIVIL KEMEDIES. tion of the codes of procedure in the several States. The com- mon law, it is plain, conceived of a joint right as a very peculiar and very important matter ; it was one individual entity, not an assemblage of the individual rights belonging to the several persons who held it. In fact, according to the strict legal notion, there was no such individual right in any one of the joint holders. This is apparent from the primitive rule of the common law as to survivorship. According to that rule, if A., B., and C. held a joint right arising even from contract, and B. died, his whole interest and claim was ended, and nothing passed to his personal representatives. It was not simply the case of survivors holding and suing for the benefit of the deceased's estate ; the survivors held and sued for their own use alone ; all right was centred in them ; where a single survivor remained and he died, as the entire ownership or right of action had been collected in him, so it passed to his administrators or executors as part of his estate. Equity did, it is true, afterwards change this doc- trine in respect of rights of action arising from contract, and conferred upon the estate of the decedent who had been jointly interested with the living, a share in the contract or in its proceeds, and made the survivors accountable to the represent- atives of such estate ; but this, it should be remembered, was a radical innovation upon the ancient integrity of the common law. Combining the legal and the equitable doctrines upon this sub- ject-matter as they stood prior to the codes, and the result was the possession of an undivided interest by the estate of the decedent, which equity created and alone protected by a direct action, authorized to be brought by his personal representatives ; the surviving covenantees or promisees, on the other hand, could alone maintain actions in courts of law as though they were the sole owners of the demand, but at the same time they could be required to account, and to pay over to the executors or adminis- trators of their deceased co-promisee the share of the proceeds equitably belonging to his estate. § 193. The rules in regard to parties and those in regard to the forms of judgment reacted upon each other. The joint right being conceived of as a single entity, although residing in two or more persons, the judgment must establish or defeat it as a whole ; the notion of severing it and establishing a part in favor of cer- tain plaintiffs, and defeating a part as against certain other plain- COMMON-LAW THEORY OF JOINT EIGHT. 233 tiffs, could not be entertained, and was violently opposed to all the common-law theories. Exactly the persons in whom collec- tively the legal right resided, no more and no less, must be united as plaintiffs, or else the proceeding would wholly fail. The rea- son repeated from court to court, and solemnly put forth as the ground of this common-law rule, was, that all persons jointly interested must unite as plaintiffs, and no one of them should be permitted to sue alone, because otherwise the defendant would be exposed to two or more judgments and recoveries for the same demand, which would be manifestly unjust. This formula was gravely repeated by the judges, and at the same time each one of the separate parties to a several contract was permitted to bring a distinct action, and to recover a judgment for the whole de- mand and costs, the court providing, however, that there should be but one payment and satisfaction of the claim. What it was thus perfectly easy to do in the case of a several right was equally practicable in the case of a right called joint ; and the judges proved the utter emptiness of their reasoning by permit- ting a proceeding in the one instance which they asserted to be impossible in another. In fact, in every instance of several rights against the same defendant, or of a several liability due from two or more defendants, the common-law coui'ts allowed as many actions as there were plaintiffs in the one case, and as there were defendants in the other, and protected the rights of all the parties with justice and equality by controlling the executions and permitting but one enforcement and satisfaction of the actu- ally single demand. This practice demonstrates the worthless- ness, — the utter want of any foundation of fact, — of the argu- ment uniformly urged against the possibility of allowing separate actions by persons clothed with joint rights ; the argument was a mere formula of words, and nothing more. The same is equally true of the common-law doctrine respecting survivorship. When courts of equity introduced the notion that the right does not belong alone to the survivors of joint promisees, but is shared also by the estate of the deceased party, they abolished the ancient dogma in fact, although this result was not openly proclaimed by them, but was described by the maxim, " Equity regards joint rights as joint and several." As soon as the original doctrine was changed, and it came to be admitted that, upon the death of one or more joint covenantees, obligees, or promisees, the entire 234 CIVIL REMEDIES. right did not remain in the survivors, there was nothing whatever in the nature of the relation which forbade the uniting of the survivors and the personal representatives of the deceased as co- plaintiffs in the same action to enforce the right, or which forbade the personal representatives from suing alone in courts of law. If we examine in this manner all the so-called judicial reasoning which was repeated by judge after judge from an early day in support of the common-law rules concerning parties and concern- ing the forms of judgments as dependent upon the parties, we shall find that it simply lacks the basis of fact, since the very pro- ceedings and acts which it assumes or declares to be impossible have since been adopted and practised without the slightest in- convenience. For example, the common-law judges asserted that persons having a joint right of action could not sue separately, because otherwise the debtor would be subjected to cumulative recoveries; but such severance is permitted in many States, and is a matter of daily occurrence, without any practical harm to defendants. The common-law judges denied the possibility of the surviving joint creditors and the representatives of the deceased being united as plaintiffs in an action on the demand ; but such a joinder of parties is authorized, and found to be in every respect practicable. Again, the common-law courts said that a misjoin- der of plaintiffs in a suit brought upon a joint contract must be fatal to any recovery, because it was impossible for the judgment to be divided and to be rendered against the defendants in favor of some plaintiffs, and in favor of the same defendants against the other plaintiffs ; but in fact such a judgment is just as possi- ble in the case of contracts as in that of torts, and is a familiar feature of the reformed procedure in many of the States. The common-law rules relating to parties and to the rendition of judgments, as affected by the state of the parties, are thus shown to have been technical and arbitrary in the highest degree ; the penalties for their violation were extremely onerous, amounting in most instances to an absolute denial of justice, while the rea- sons upon which they were based were a mere form of empty words, conveying no real meaning, and resting upon no founda- tion of actual fact. The system, like much else of the ancient common law, was the result of severely logical deductions from premises which had no real existence — no existence except in the imagination of the judges who adopted them. The strictly GENEKAL THEOKY AND INTENT OF THE CODES. 235 logical methods which the schoolmen of the middle ages were accustomed to employ were taken and applied bodily in the prac- tical administration of justice; from the use of a single word alone, such as "joint " or "several," rules were deduced by which the legal rights of suitors were determined without the slightest concern for or reference to the requirements of justice and the equities of the particular case. § 194. The Fundamental Principles of the Reformed Procedure ; the General Intent of the Legislature in its Adoption. With the foregoing statement in outline of the common-law rules as to parties plaintiEf, the first questions which suggest themselves, and demand a full discussion, are : How far have those rules been abrogated or modified by the provisions contained in the codes of procedure? What is the interpretation to be put upon those provisions ? What was the general intention of the legislature, and how far has that intention been embodied in the statute so as to produce a practical result in the administration of justice ? The nature and extent of the change must depend upon the legislative intent expressed in a manner sufiiciently clear and positive to effect an alteration in the former system. It must, of course, be assumed at the outset that these doctrines and rules of the common law still remain in full force, except so far as they have been abolished by the reformatory legislation, and others substituted in their stead. It may be demonstrated that the an- cient rules rest upon no basis of principle, and that the reasoning which supported them is fallacious ; all this, however, would not of itself work their destruction. They had become established as positive, peremptory regulations, binding upon the courts as though enacted by the legislature, and nothing but the legislative authority exercised in the form of a statute would avail to abolish them. I shall therefore endeavor to discover, if possible, the legislative intent, and shall seek for it first in the language of the codes. § 195. It must be conceded at once that there is no repeal or modification of these common-law rules in detail ; the require- ments of the old law as to joint and several rights, and the union or severance of the parties holding such rights, are not in any express manner referred to. It should also be carefully observed — and the fact is one of great practical importance — that the provisions in the various codes relating to parties plaintiff are not 236 CIVIL REMEDIES. SO full, minute, and express as those relating to parties defendant. Even in those State codes where the common-law distinctions between joint, joint and several, and several liabilities are utterly- abolished, and the practical requirements as to the union or sev- erance of parties defendant based upon them are wholly swept away, there is no corresponding express legislation as to the dis- tinctions between joint and several rights and the union or sev- erance of plaintiffs. This difference in the mode of treatment may be made the ground — and has been by many judges — of inferring that the legislature intended to leave the ancient legal doctrines as to plaintiffs untouched, and to confine its work of reform to the case of defendants. The legislative intent, there- fore, whatever it may be, must be found in the few general pro- visions quoted at the commencement of the present section, and in the subsequent provisions which regulate the rendition of judgments, so far as the same depends upon or is connected with the parties to an action. Referring to these provisions, it is plain that their language is general, inclusive, without exception, and applying alike to all kinds and classes of actions. Whatever doctrines in reference to parties plaintiff the legislature has adopted, whatever regulations it has established, its intention, as shown by the language of all the codes but one or two, is to apply them equally to legal and to equitable actions. No excep- tion being made nor even suggested, the courts cannot, unless by an act of positive legislation, by an act of direct usurpation, create an exception, and say that these general terms were intended to apply to equitable suits alone, while legal actions were intended to be left outside of their scope and effect. § 196. These statutory provisions themselves are confessedly an enactment, with hardly a verbal change, of the general principles long ago established by courts of equity for the regulation of the parties plaintiff in suits pending before them. The legislature has, therefore, in a very brief but comprehensive form, adopted the equitable doctrine, and has applied it to the civil action re- quired to be used in the enforcement of all rights and the pursuit of all remedies, whether legal or equitable. This proposition cannot be denied, without denying to the language of the statute its plain meaning and ordinary significance and force. The prac- tical question, then, arises at once, How far is this equitable doctrine inconsistent with the positive rules as to parties plaintiff' GENERAL THEORY AND INTENT OF THE CODES. 237 in legal actions, long established as a part of the common-law procedure? To what extent does it, as thus generally stated, necessarily abrogate or modify these special rules ? That some change is wrought, if we adhere to the simple language, is very manifest. For example, the common law required that all part- ners, or other joint contractors, should unite as plaintiffs, and admitted no ordinary exception or excuse for the non-joinder. The new procedure, after requiring, as did the common law, that all those parties " united in interest must be joined as plaintiffs," adds, " but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a de- fendant, the reasons being stated in the complaint or petition." The practice permitted by this clause was familiar to courts of equity, but was utterly unknown in courts of law. Here, how- ever, it is applied to all actions ; no exception is suggested ; and if we follow the plain language of the codes, this important alter- ation is made in the ancient legal rules regulating the parties plaintiff. § 197. Assuming that the provisions in relation to plaintiffs are an enactment in a statutory form of the general equitable doctrine in regard to the same subject, and that, as they stand in the codes, they equally embrace within their scope actions of all kinds, legal and equitable, and giving full force to their language, they do not abrogate but rather confirm a large portion of the common-law rules, those, I mean, which require all persons jointly interested to be united as plaintiffs. The general require- ments, " all persons having an interest in the subject of the action, and in obtaining the relief demanded, maybe joined as plaintiffs," and " those who are united in interest must be joined as plaintiffs," plainly include the case of persons " having an interest in the subject-matter," or " united in interest " by virtue of their being joint obligees, covenantees, or promisees at law, as well as the case of persons having some common equitable interest. The two sections of the codes from which I have quoted do not con- template nor permit a severance among parties plaintiff when the old law requires a joinder ; the changes introduced by them rather tend in the opposite direction, and, taking their language simply as it stands, they would seem to allow the uniting of par- ties plaintiff in many cases where such union was forbidden in legal actions ; as, for example, the uniting of survivors of joint 238 CIVIL KEMEDIES. promisees and the personal representatives of those deceased. In fact, the practical rule of equity in regard to suits by persons jointly interested, or having a joint right, was the same as that which prevailed at law, with the single exception or addition which provided for the case of a refusal by one or more of the joint holders of the right to unite with their fellows as plaintiffs. In equity, as well as in law, the joint owners of property, and the joint obligees, or covenantees, were in general required to be all made co-plaintiffs, but if one or more refused to join, he or they could be made defendants.' This equitable doctrine is now, if we accept the express language of the codes, and not the glosses put upon it by some of the courts, extended to all actions alike. § 198. As already stated, these sections of the codes, if full force be given to their plain and simple terms, look to a more free union of parties as plaintiffs in the same action than was allowed by the courts of law under the former system. In order to be a proper plaintiff, according to the ancient theory, the person must be interested in the whole of the recovery, so that one judgment could be rendered for all the plaintiffs in solido ; that a judgment should be given to one plaintiff for a certain sum of money, or for certain lands or chattels, and a judgment for a different sum, or other lands or chattels, be awarded to another plaintiff, was regarded as the sheerest impossibility. The legal notion of sur- vivorship forbade the union of the personal representatives of a deceased joint contractor with the others who were living, and even the union of the representatives of all, if all were dead. The text of the codes is broad enough, and explicit enough, if it is taken literally, to abolish these legal restrictions upon the freedom of joining parties as plaintiffs. The clauses, " All per- sons having an interest in the subject of the action, and in obtaining the relief demanded," and " those who are united in interest," do not necessarily require that the interest of all those who are to be united as plaintiffs should be equal or the same, and they do require the union of all those having such an interest without any restriction as to its nature, whether it be legal or equitable. The interest of the survivors of joint obligees, cove- nantees, or promisees, was, under the ancient system, strictly 1 See 1 Daniel's Chan, f 1. (4th Am. ed.), pp. 192, 206, 207, 208, 211, 216. GENEKAL THEORY AND INTENT OF THE CODES. 239 legal. The interest of the executors or administrators of the deceased joint obligee or promisee was equitable, but was none the less a full interest, for it enabled the estate to obtain its entire portion of the benefit flowing from the contract. The unequivocal language of the codes declares that persons holding this common interest in the subject-matter of the ac- tion, or in obtaining the relief demanded, may be united as plaintiffs. § 199. In one other class of cases these provisions of the re- form legislation would seem to have modified the former practice in legal actions, if their meaning is to be found in their exact terms. At the common law, the different holders of several rights must sue separately, although the rights were created by a single instrument, and although there might be some kind of a common interest ; no election was given to bring a joint action by all, or a separate action by each. This rule is directly within the modifying effect of the sections under consideration. "All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs." The extent of the interest is not the criterion, nor its source nor origin. If the persons have any interest, whether complete or partial, whether absolute or contingent, whether resulting from a common share in the proceeds of the suit, or arising from the stipulations of the agreement, the language applies without any limitation or exception, and without any distinction suggested between actions which are equitable and those which are legal. This was the established equity doctrine which in many cases permitted parties to be united as plaintiffs whose rights were, in a legal aspect, not joint, but several. It is possible, indeed it frequently happens, that several rights may be held by two or more persons, who nevertheless have "an interest in the subject of the action and in the relief demanded ; " and it would seem that these persons, according to the interpretation given above, may now, if they so elect, join as plaintiffs in bringing a legal action as well as in maintaining an equitable suit. § 200. I have thus far intentionally examined the sections of the various State codes which relate to the joinder of parties plaintiff in the civil action, without any reference to judicial authority and construction ; I have endeavored to ascertain and to state the object and design of the legislature as the same could 240 CrVIL REMEDIES. be gathered with reasonable certainty from the very words which it has employed. This legislative intent, when the field of in- vestigation is thus limited, depends upon the prior rules control- ling the choice of parties plaintiff both in legal and in equitable actions and upon the exact text of the statute itself. I recapitu- late the results reached by this analysis : (1) The common-law doctrines defining joint and several rights, and the special rules relating to joint and several actions, are not specifically abrogated or modified ; whatever changes have been made are the result of very general and comprehensive language used by the legislature. (2) There is a striking difference between the general character of the provisions having reference to plaintiffs and that of the pro- visions referring to defendants; the latter are more special in their nature, and in many of the States much more reformatory. (3) The new system has, in a very comprehensive form, estab- lished the doctrine of equity in regard to the choice and joinder of plaintiffs, and, by making no exceptions or limitations, has applied this doctrine to all actions, whether legal or equitable. (4) The effect of extending this doctrine of equity to legal actions is not to prevent the union of parties as co-plaintiffs in cases where, on account of the joint right, the common law required such union ; the common-law rule making the joinder of all such per- sons necessary is left unaffected, with the single exception that if one who should regularly be made a plaintiff, in pursuance of such rules, refuses to permit his name to be thus used, he may be made a defendant instead ; and this exceptional provision being without limitation or restriction in the text, applies as well to legal as to equitable actions. (5) Persons having" an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs in all actions, whatever be their nature, although the rights of such persons are legally several, and al- though at the common law they would be required to institute separate actions ; or, in other words, the plain import of the legislation — its language not being confined to any class of suits — is to enlarge the number of cases in which persons may be joined as co-plaintiffs, and to place legal actions in this respect upon exactly the same footing as those which are equitable in their nature. (6) The special rules of the common law as to husband and wife have been entirely abolished in some States by provisions contained in their codes of procedure, and in other JUDICIAL INTEKPKETATION OF THE CODES. 241 States by separate statutes relating exclusively to the status of marriage. § 201. The Creneral Theory of Judicial Interpretation. The foregoing results were obtained from an examination of the lan- guage alone which the legislatures have used ; I shall now pro- ceed to compare them with the general conclusions which have been reached by the courts in their interpretation of the same provisions, and shall thus test their correctness and their value as practical guides in the administration of justice. In pursuing this investigation, the inquiry will at present be confined to those judicial decisions which have dealt with the subject of parties plaintiff, those which discuss the analogous topic of par- ties defendant being reserved to the succeeding section of this chapter. This course will necessarily produce some repetition of general principles ; but as the questions relating to plaintiffs and those relating to defendants arise from provisions of the codes quite different in their scope and import, a separate consideration of them will prevent confusion and uncertainty. I shall first ascertain, if possible, and formulate the general theory of con- struction upon which the courts have proceeded in their decision of special cases ; and, secondly, shall classify and arrange these cases, and deduce therefrom the particular rules as to the joinder of plaintiffs in the civil action which have been judicially settled as a part of the reformed system of procedure. The number of instances in which the courts have laid down a broad and com- prehensive principle of interpretation, which might be the guide in whole classes of adjudications, is very few, and such a principle must rather be gathered by a process of induction from an analy- sis and comparison of particular cases. The few attempts at the statement of a general theory which have been made, I shall quote somewhat at length. § 202. In an early case, — an action brought by the three obli- gees in an injunction bond, — the objection was raised that the rights of the plaintiffs were not joint, and that they had been im- properly united. Their interests, which had been interfered with by the injunction, were in fact distinct and separate, and it was assumed throughout the judgment that, under the former system, each should have brought a several action on the undertaking. The court, after stating the old rule applicable to the circum- stances, proceeded as follows ; " We are now to determine this 16 242 CIVIL REMEDIES. question as it arises under the code of procedure. With the view of embracing all cases, whether of law or equity, and of making them conform to one general rule, the code provides, in § 117, that 'all persons having an interest in the subject of the action and in relief demanded may be joined as plaintiffs.' This is now the rule in all cases, whether such as were formerly the subjects of suits in equity or of actions at law, and we are to administer it according to its spirit and true intent, however the practice may differ from the rule that has heretofore prevailed in actions at law. ... It will be perceived that this case falls within the precise words of the section before cited. All have an interest in the subject of the action and in the relief demanded — that is, in the damages arising out of the operations of the injunc- tion. It is not said to be a joint or an equal or even a common in- terest, but simply an interest in the subject of the action with the view of doing full justice and settling the rights of all the parties in interest in one suit." ^ The Supreme Court of Ohio has adopted the same principle of interpretation, and has given a construction to important terms of the statutory provision. An action was brought upon an undertaking called a forthcoming bond, executed by the defendant and sureties in attachment proceedings. Cer- tain creditors had commenced suit, and had attached the property of their common debtor. The latter gave the bond in question to the sheriff running to all these plaintiffs, the condition of which was that the property attached, or its equivalent in money, should be forthcoming to answer the judgments which might be obtained. Subsequently other creditors issued attachments against the same debtor, which were delivered to the same -sheriff, and he returned on each that he had levied upon the same goods before mentioned. All these creditors united in an action upon the bond, and the objection was taken that there was a misjoinder 1 Looniis V. Brown, 16 Barb. 325, 330, ing § 36 of the code, in relation to the 332, per Gridley J. In the recent case of joinder ofplaintiffs, the court said :" There Pelly 0. Bowyer, 7 Bush, 513, the Court can be no doubt that in equity actions for of Appeals of Kentucky gave a very dif- the settlement of estates several distribu- ferent construction to the statutory pro- tees may unite as plaintiffs. But, except in vision. The action was brought by a particular class of cases, not embracing several distributees to recover from the this, we know of no authority for uniting administrator the shares found to be due as co-plaintiffs several parties having each on a settlement of the estate, and it separate and independent rights of action resulted in a joint judgment for the aggre- against the same defendant, or for a joint gate amount of such shares. The action, recovery thereon." it was held, was entirely irregular. Quot- JUDICIAL INTERPRETATION OF THE CODES. 243 of parties plaintiff. The court, after examining the clauses of the code relative to attachments, and showing that the bond enured to the benefit of all the creditors, disposed of the objection as to parties in the following manner : " The first question pre- sented for our consideration is the right of joinder of the plaintiffs in the action. The provisions of the code are as follows [citing the sections]. In order to correctly determine this question, it is only necessary to ascertain what was the subject of the action, and how the parties stood related to it. The subject of the action is the attachment undertaking." The court proceeds to hold that all the plaintiffs had a beneficial interest in this under- taking, although not named as parties in it, and concludes : " It follows, therefore, that the subsequent attaching creditors had an interest in the subject of the action and in obtaining the relief demanded by the action upon the undertaking, and might prop- erly be joined as plaintiffs." ^ It should be observed that the court here gave a very broad interpretation to the phrase " the subject of the action " and to the term " interest." The " sub- ject of the action " was said to be the contract upon which the suit was brought, and not the mere individual rights arising from that contract, nor the breach of those rights by the defendant. The " interest " required is equally general, and the language of the clause is satisfied by a beneficial interest created by operation of law, even though the person in whom it resides is not named in the contract, and could not possibly have had any interest at the time the instrument was executed. Again, the rights of the plaintiffs were clearly several ; the undertaking of the defendants was for different amounts due to separate individuals, and pay- able upon the happening of different events having no legal con- nection and no common element. It was, in its legal effect, a collection of independent promises to pay distinct sums of money to separate persons contained in one written instrument. § 203. The Supreme Court of Indiana has stated the same general principles of interpretation in a clear manner, and with the evident desire to comply with the spirit of the new system which characterizes all the decisions of that able tribunal. An action was brought by three plaintiffs upon a peculiar contract, entered into between themselves and the two defendants, in which each of the five stipulated for indemnity against a certain 1 Eutledge v. Corbin, 10 Ohio St. 478, 484, per Sutlifi J. 244 CIVIL EEMEDIES. contingent liability to be given by the four others, and in which the rights and liabilities were clearly several according to the common-law conception. The court say : " The code itself is not exactly definite as to who may be joined as plaintiffs. It provides, however, that judgment may be given for or against one or more of several plaintiffs, which was the practice in equitj', though it was otherwise at law. It also provides that all persons having an interest in the subject of the action, and in the relief demanded may be joined as plaintiffs. Indeed, the code seems to have re-enacted the rules which had prevailed in courts of equity as to who wiMSi join as plaintiffs, and maybe joined as defendants. But as to those cases in which in equity plaintiffs might or might not have joined at their option, the code does not expressly speak, for the reason, probably that the general rule in equity was not founded upon any uniform principle, and could not be expounded by any universal theorem as a test.^ And it may have been thought safe, therefore, to leave each case to be decided by the courts upon authority and analogy. That it was intended the rules of pleading in courts of equity should govern the subject, is quite evident from those provisions of the code which pre- scribe the relief that may be granted, and to whom ; in this respect conforming entirely to the established practice of those courts, — a mode of administration quite impracticable in a great many cases, unless the parties might be as in chancery. The present inquiry is, then, in view of the considerations above stated, reduced to this : Could these plaintiffs have formerly been joined in chancery ? " The opinion proceeds to examine the pro- visions of the contract, and, holding that the rights as well as the liabilities of all the parties were entirely several, and would have been so regarded in equity, concludes as follows : " In the case before us there is in the plaintiffs no community of interest in any matter involved in the suit ; no right common to all is claimed ; everything is separate, save only that the right asserted by each is founded in a contract which, for convenience, happens to be on the same sheet of paper. We have failed to find any warrant in the adjudged cases for a joinder of plaintiffs under such circumstances." ^ The equitable interpretation of the sec- tions relating to the union of parties plaintiff is here fully admit- 1 Story Eq. PL, § 539. per Frazer J. See Maple v. Beach, 43 2 Goodnight v. Goar, 30 Ind. 418, 419, Ind. 51, 59. JUDICIAL INTEKPRETATION OF THE CODES. 245 ted, and it is declared that the established rule of the equity courts is to be taken as the criterion by which to determine all questions as to the proper joinder of plaintiffs now arising, even in legal actions. The attempt to maintain this particular suit by the three co-plaintiffs was condemned, not because their rights were several according to the legal notion, but because they were so unconnected that they could not have been enforced by a single action in equity. The same court reiterated this principle of in- terpretation in another well-considered case, and it may be re- garded as the settled doctrine of that State. " The code requires all persons having an interest in the subject of the action, and in the relief demanded, except as otherwise provided, to be joined as plaintiffs. It also requires those who are united in interest to be joined as plaintiffs or defendants. And it then declares that, when the question is one of common or general interest to many persons, or when the parties are numerous and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.^ These provisions substantially re- enact the old equity rules on the subject of parties. All who are united in interest must join in the suit, unless they are so nume- rous as to render it impracticable to bring them all before the court; while those who have only a common or general interest in the controversy may one or more of them institute an action. This, however, must not be understood as allowing, in all cases, two or more persons having separate causes of action against the same defendant, though arising out of the same transaction, to unite and pursue their remedies in one action. Several plaintiffs, by one complaint, cannot demand several matters of relief which are plainly distinct and unconnected. But where one general right is claimed, where there is one common interest among all the plaintiffs centring in the point in issue in the cause, the objec- tion of improper parties cannot be maintained." ^ ^ § 204. Notwithstanding the common principle which lies at the bottom of the foregoing opinions, and which has undoubtedly been adopted by a great majority of the various State courts in 1 Code of Ind., §§ 17, 18, 19. assert the general doctrine that the pro- 2 Tate V. Ohio & Miss. R. R. 10 Ind. visions of the code apply to legal and 174 ; citing McKenzie v. L'Amoureux, 11 equitable actions alike. Cumniings v. Barb. 516 ; Bouton v. City of Brooklyn, Morris, 25 N. Y.625; Grinnell v. Schmidt, 15 Barb. 375 ; Murray v. Hay, 1 Barb. Ch. 2 Sandf. 706; Cole v. Reynolds, 18 N. Y. 59. The following cases, among others, 74. 246 CIVIL REMEDIES. their construction of these statutory provisions, there has not been an absolute unanimity of decision. By some individual judges, and even by some courts, the operation of the sections under consideration has been confined exclusively to equitable actions, while the ancient common-law rules as to parties have been declared controlling in all legal actions. A reference to two or three cases in which this ancient distinction has been still pre- served will be sufBcieut for my purpose. Two persons, A. and B., entered into a written contract with a third, C, for the per- formance of certain work and labor at a stipulated price. The work having been completed, and C. refusing to pay the price agreed upon, A. brought an action upon the contract ; demanding judgment for one half of said sum, and making B., his co-con- tractor, a defendant, alleging that he had refused to be a party plaintiff, and had confederated with C. to hinder and delay the plaintiff from obtaining his demand. The Supreme Court of Missouri, in affirming a nonsuit which had been ordered at the trial, said : " If C. has violated his contract, he is liable to an action ; but that action could only be brought in the joint names of A. and B., the contractors. That provision of the Practice Act which allows a party to be made a defendant when he will not join as a plaintiff, has nothing to do with this question. That was a rule of equity practice which was necessarily incorporated into a system which abolished all distinction of actions. In adopt- ing it, it was not designed that it should have any operation but in cases where it was applicable under the former system of prac- tice. It was never intended that it should affect the rights of parties arising 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. If one will say that he had no right of action, and will not sue, why should he not have as much right as the other who says there is a cause of action ?"i The same general doctrine 1 Eainey v. Smizer, 28 Mo. 310, per of the judicial mode of repealing stat- ScottJ. The opinion proceeds to state utes. Conceding that the new system a numher of imaginary difficulties in abolishes all distinction of actions, the learned the way of such arrangement of parties judge, in the same hreath, preserves these as made by the plaintiff in this case, very distinctions entirely unaffected. If these The decision, and the whole scope of distinctions were thus abolished, it would the argument, are an excellent illustration haye been natural to conclude that the JUDICIAL INTEEPEETATION OF THE CODES. 247 was accepted as the basis of interpretation, and the same restric- tion of the statutory provisions to suits in equity was announced by the Supreme Court of California in an early case arising upon similar facts. " The simple question presented for our consider- ation is, whether there was a non-joinder of parties plaintiff or not ; it being contended that § 14 of the Practice Act has intro- duced a new rule, and that one of several parties may maintain an action on a joint contract, in his own name, by simply suggest- ing the impossibility of obtaining the consent of the others to join in the action. Upon examination of this section, we are sat- isfied that it was intended to apply to suits in equity, and not to actions at law." ^ I have placed in a foot-note a number of cases which contain expressions of opinion by individual judges, that the sections and clauses of the codes and practice acts regulating the choice and joinder of parties are confined in their scope and operation to equitable actions alone, and were not intended by the legislature to interfere with the former rules applicable to legal actions.^ § 205. The citations given in the foregoing paragraphs confirm the conclusions which were reached by a mere analysis of the language. That these provisions as to the parties plaintiff do enact the general doctrines which had prevailed in courts of equity, is admitted by both schools of interpretation ; and that these eq uitable rules, thus embodied in a statutory form, do apply to all actions, and are not by any implied limitation restricted to equitable actions, is now, I think, declared by the -courts in most of the States which have adopted the reformed procedure. Assuming these facts as premises, all the other propositions former equitable rule, incorporated into judicial proceedings the freer and more the code without a suggestion of limita- just methods of equity. See, per contra, tion, was now to be applied to all actions Hill v. Marsh, 46 Ind. 216. alike upon a proper occasion. This nat- l Andrews u. Mokelumne Hill Co., 7 ural conclusion is obviated, however, by Cal. 830, 333. The same court has, in a mere naked assumption as to the intent later cases, pursued a course of decision of the legislature, — an assumption not more in accordance with the spirit of the warranted by a single clause of the stat code, and has, as completely perhaps as ute, and utterly inconsistent with the en- any other tribunal, abandoned all attempt tire history of the reform. Undoubtedly, to preserve a distinction between actions the common-law rule mentioned by the at law and suits in equity, court was well settled; but it was the 2 Voorhis v. Child's Executors, 17 very object, the avowed purpose, of the N. Y. 354, per Seklen J. ; Habicht v. code to abolish this whole class of arbitra- Pemberton, 4 Sandf. 657 ; Van Home v. ry legal dogmas, and to introduce in all Everson, 13 Barb. 526. 248 CIVIL EEMEDIES. stated in my preliminary analysis follow as a necessary conse- quence. In this immediate connection it should be remarked that individual judges will give greater or less scope to the lib- erty granted by the legislative rule, according to their personal notions of expediency. There was a numerous class of cases, under the former system, in which courts of equity recognized an election on the part of claimants either to join in one proceed- ing or to sue separately. This power of choice, then confined of course to suits in equity, stills remains in similar instances, aud may even be extended to certain controversies in which the cause of action is legal. Thus, where the right is strictly several, and would be regarded as such by the common law, equity might have allowed them an election to sue separately or jointly. This power of choice, contained in the equity doctrine, is introduced into the new procedure, and is of course not confined to suits equitable in their nature. We must therefore expect to find, within certain narrow bounds, some conflict of decision from judges who accept and heartily approve the general principles of interpretation which have been developed in the foregoing dis- cussion. § 206. Manner of raising the question as to the proper parties plain- tiff. Before proceeding to the discussion of particular cases and special rules, a preliminary question may be here properly answered : How can the objection that an action has not been brought by the proper plaintiff or plaintiffs be raised and regularly presented to the court for its decision ? The codes of procedure all agree in prescribing, among other grounds of demurrer to the complaint or petition, the following : " When it shall appear on the face of the complaint or petition ; 2, that the plaintiff has not legal capa- city to sue ; or, 4, that there is a defect of parties plaintiff or de- fendant ; or, 6, that the complaint or petition does not state facts sufficient to constitute a cause of action ; " ^ and also that, " when any of the matters enumerated in section [the foregoing] do not appear on the face of the complaint or petition, the objection may be taken by answer ; " ^ and, finally, " if no objection be taken, 1 New York, § IM (488) ; Minnesota, § 95; S. C. § 167. In the following codes § 80 ; Kansas, § 89 ; Nebraska, § 94 ; it is made a special cause of demurrer Iowa, § 2648 ; Missouri, art. 5, § 6 ; In- that there is a misjoinder of plaintiffs or diana, § 50; Wisconsin, ch. 125, § 6; defendants: Missouri, art. 5, § 6 ; Cal. Ohio, § 87 ; Oregon, § 66 ; Florida, § 95 ; § 430. California, § 430 ; Dacota, § 97 ; N. C. 2 New York, § 147 (498) ; Minnesota, IMPEOPEK PARTIES PLAINTIFF. 249 either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the juris- diction of the court, and the objection that the complaint or peti- tion does not state facts sufficient to constitute a cause of action." i The construction to be placed upon these clauses, and the result- ing rules prescribing the methods by which an objection as to proper parties must be interposed, in order to present a question for judicial decision, have been settled in the various States with almost complete uniformity. In regard to defect of parties plain- tiff,the interpretation is now established, that " defect of parties," given as one ground of demurrer, means too few, and not too many. A demurrer alleging this particular objection can only be interposed, therefore, in case of a mow-joinder of necessary plain- tiffs or defendants, and never in case of a mz's-joinder. The word " defect" is taken in its literal sense of " deficiency," and )iot in a broader sense as meaning any error in the selection of parties. Upon this point the courts are nearly unanimous.^ It has been held, however, in Wisconsin, that this is the proper form of de- murrer where the objection is to a misjoinder.^ § 207. When a defect of parties plaintiff — that is, a non- joinder — appears on the face of the complaint or petition, the defendant must raise the question by demurrer, and not by an- swer. If he neglects to interpose a demurrer upon this specific ground, he waives the objection entirely, even though he sets up the defence in his answer. The reason given for this somewhat technical rule is the following : The mere defence of a defect of § 82; Kansas, § 91; Nebraska, § 96 Iowa, § 2650; Missouri, art. 5, § 10 Indiana, § 54 ; "Wisconsin, ch. 125, § 8 Ohio, § 89; Oregon, § 69 ; Florida, § 98 Cal. § 433; Dacota, § 100; N. C. § 98 true of defendants, — the section includ- ing botli parties in a single formula, — the decisions in reference to them are in point. See Peabody v. Washington, &c. Ins. Co.. 20 Barb. 339 ; Voorhis v. Baxter, 18 Barb. S. C. § 170. 592 ; s. c. 17 N. Y. 354 ; Bank of Havana 1 Kew York, § 148 (499) ; Minnesota, v. Magee, 20 N. Y. 355. See also Western, § 82a; Kansas, § 91 ; Nebraska, § 96; &c. Co. v. JEtna Ins. Co., 40 Wis. 373; Iowa, § 2650 ; Mo., art. 5, § 10 ; Ind. § 54 ; Marsh v. Board of Supervisors, 88 id, 250 ; Wis.'ch. 125, § 9; Ohio, § 89; Oregon, Willard w. Eeas, 26 id. 540 (settling the § 70; Fla. § 99; Cal. § 434; Dacota, rule as given in the text, and limiting § 101; N. C. § 99 ; S. C. § 171. Read v. Sang, 21 id, 678). 2 Palmeru. Davis, 28 N.Y. 242; Case » Read v. Sang, 21 Wis. 678. The V. Carroll, 35 N. Y. 385 ; Richtmyer v. demurrer was held proper upon the au- Richtmy e'r, 50 Barb. 56 ; Powers v. Bum- thority of an early New York decision, — cratz, 12 0, St. 273 ; Berkshire v. Shultz, Dunderdale v. Grymes, 16 How. Pr. 195, 25 Ind. 523; Bennett v. Preston, 17 Ind. which has since been many times over- 291 ; Mornan v. Carroll, 35 Iowa, 22 ; Hill ruled in that State. V. Marsh, 46 Ind. 218. As the same is 250 CIVIL REMEDIES. parties, not going to the real merits of the controversy, and not denying the cause of action existing in some persons, is not favored by the courts; it is regarded as a "dilatory defence," because it does nothing more than postpone the decision of tlie substantial issues ; and, although the defendant is permitted to avail himself of it, he must follow exactly the modes prescribed by the rules of practice, or by the statute for its interposition.^ If the defect does not appear upon the face of the complaint or petition, the defendant must set up the defence specially in his answer, or, failing this, he waives the objection.^ To sum up : if a defect of parties plaintiff appears in the pleading, the mode of raising the defence is by demurrer alone ; if it does not appear in the plead- ing, by answer alone ; and, unless the defendant complies with these requirements as to method, he waives all objection. It has been expressly decided in Ohio, and this is plainly the correct rule, that a demurrer for want of sufficient facts does not raise the ques- tion of a defect — non-joinder — of plaintiffs or defendants.^ § 208. A want of legal capacity to sue. A demurrer or defence for this cause must relate exclusively to some legal disability of the plaintiff, — such as infancy, coverture, idiocy, and tlie like, — and not to the absence oJ facts siifficient to constitute a cause of action. The facts constituting a cause of action may be suffi- 1 Zabriskie v. Smith, 1.3 N. Y. 322; Lillie v. Case, 54 Iowa, 177; Bouton v. De Fay v. Strong, 37 N. Y. 372 ; 3 Keyes, Orr, 51 id. 473 ; Ryan o. MuUin, 45 id. 603; Patching. Peck, 38 N. Y. 39; Fisher 631; Taylor v. Collins, 51 Wis. 123; V. Hall, 41 N. Y. 416 ; Wells v. Cone, 55 Thomas v. Wood, 61 Ind. 182 ; Cox v. Barb. 585 ; Hees v. Nellis, 1 N. Y. Sup. Bird, 65 id. 277 ; Barnett v. Leonard, 66 Ct. 118 ; Alexander v. Gaar, 15 Ind. 89; id. 422; Davis v. Bechstein, 69 N. Y. 440; Justice V. Phillips, 3 Bush (Ky.), 200; Kisley w. Wightman, 13 Hun, 163; Por- Andrews v. Mokelumne Hill Co., 7 Cal. ter v. Fletcher, 25 Minn. 493 ; McKenzie 330; Tennant u. Pfister, 45 Cal. 270; v. Board, &c. of Edinburg, 72 Ind. 191 Dailey v. Houston, 58 Mo. 361, 366 ; Mc- (an unincorporated association cannot sue Roberts v. So. Minn. R. R., 18 Minn. 108, by its name ; all the members must join 110. As the same rule applies in case of as plaintiffs). defect in parties defendant, see Dillayeu. 2 n,;,], ^jgQ Merritt v. Walsh, 32 Parks, 31 Barb. 132 ; Wright v. Storrs, N. Y. 685 ; Donnell v. Walsh, 33 N. Y. 32 N. Y. 691 ; s. c. 6 Bos. 600 ; Abbe v. 43 ; s. c. 6 Bosw. 621 ; Goek v. Ken- Clarke, 31 Barb. 288. See also Blakeley eda, 29 Barb. 120 ; Umsted v. Buskirk, u.Le Due, 22 Minn. 476; Baldwin w. Can- 17 Ohio St. 113; Dickinson!;. Vander- fleld, 26id. 43; Gunbel w.Pignero, 62Mo. poel, 5 N. Y. Sup. Ct. 168. See also 240; Kellogg v. Malin, id. 429; Mc- Frenon v. Cent. Pae. R. R., 50 Cal. Council V. Braynor, 63 id. 461 ; Dunn v. 222 ; Maxwell v. Pratt, 24 Hun, 448 (an Hannibal, &c. R. R., 68 id. 268 ; State answer setting up a defect of parties V. Saffington, id. 454; Donnan v. Intelli- must give the names of the plaintiffs to gencer Co., 70 id. 168 ; Parchin v. Peck, 2 be joined). Mont. 567 ; Ross v. Linder, 12 S. C. 592 ; 3 Umsted v. Buskirk, 17 Ohio St. 11-3. MISJOINDER OF PLAINTIFFS. 251 ciently averred, and yet the plaintiff may not have a legal capacity to sue. The objection that the plaintiff has not legal capacity cannot, therefore, be raised and relied upon under a demurrer for want of sufficient facts, nor the objection of a want of facts under a demurrer alleging an absence of legal capacity.'' § 209. Misjoinder of Plaintiffs. A misjoinder of parties plain- tiff is not made a specific ground of demurrer, or mentioned as a defence, except in one or two of the codes. At the common law two or more persons could not be joined as plaintiffs in an action upon contract, unless they possessed a joint right ; and if, on the trial, they failed to establish such right as alleged residing in all, a nonsuit was inevitable. If two or more persons were united as plaintiffs in a legal action based upon their right of property in lands or chattels, they must necessarily have been either joint owners or owners in common, and a failure to prove the joint right of action was followed by the same consequence, — a defeat of all the plaintiffs. The arbitrary theory of this ancient rule has already been explained, and need not be repeated. In equity, no such doctrine prevailed ; because, when two or more persons were made plaintiffs in the same action, it hj no means followed that they held and alleged a joint right residing in themselves. When, therefore, there was an improper or unnecessary union of co- plaintiffs in an equity action, the suit did not necessarily fail as to all ; the bill might be dismissed at the hearing as to certain of the plaintiffs, and a decree rendered for the others ; or some might be struck off, upon motion, at any stage of the proceedings, and the cause go on in the name of the residue. § 210. Has any change in these conceptions, and in the practi- cal rules derived from them, been wrought by the codes of pro- 1 De Bolt V. Carter, 31 Ind. 355 ; such allegation, a demurrer on the ground Berkshire v. Shultz, 25 Ind. 523 ; People of a want of legal capacity was overruled. V. Crooks, 53 N. Y. 648 ; Haire v. Baker, Phoenix Bank v. Donnell, 40 N. Y. 410, 5N. Y. 357 ; JFulton Fire Ins. Co. v. Bald- 41 Barb. 571. As to legal capacity to win, 37 N. Y. 648 ; Allen v. Buffalo, 38 sue, see Excelsior Petroleum Co. v. N. Y. 280 ; Palmer v. Davis, 28 N. Y. 242 ; Lacey, 63 N. Y. 422 ; Beers v. Shannon, Bank of Lowville !>. Edwards, 11 How. 73 id. 292,297; Minneapolis, &c. Co. „. Pr. 216; Viburt v. Frost, 3 Abb. Pr. 120 ; Libby, 24 Minn. 327; Dist. Townp. of Myers v. Machado, 6 Abb. Pr. 198, 14 Whiteoak v. Dist. Townp. of Oskaloosa, How. Pr. 149; Hobart w. Frost, 5 Duer, 44 Iowa, 512; Smith v. Peckham, 39 672. In*New York, a corporation is not Wis. 414 ; Eogers v. Lafajctte Agr. required to aver the acts creating its cor- Works, 52 Ind. 296 ; Debost v. Carter, 31 porate character ; and, in an action by a id. 355; Langsdale v. Girton, 51 id. 99. bank where the complaint omitted any 252 CIVIL KEMEDIES. cedure? If the old distinction between joint legal rights and several legal rights is maintained ; if the ancient notion of the common law, that two or more parties plaintiff in a legal action, brought upon a contract or upon the ownership of land or chat- tels, must hold a joint cause of action, is still preserved, with all of its technical incidents ; if it be considered that the reform legislation has confined its equitable doctrine as to parties to equitable actions alone, while it has left the doctrines regulating legal actions untouched, — then no change has been wrought in the practical rules which determine the effect of a misjoinder of plaintiffs, as stated in the foregoing paragraph. Under this assumption, a misjoinder of plaintiffs in a legal action, brought upon a contract or upon property in lands or chattels, must now, as formerly, entail the consequence of a complete failure ; while now, as formerly, a misjoinder of plaintiffs in an equity suit does not entail such a consequence ; a judgment can be recovered by a portion of the plaintiffs, and the action be dismissed as to the residue. If, on the other hand, the system is to be accepted and acted upon in the spirit which designed it, — if its requirements as to parties, which, as is universally conceded, enact the estab- lished doctrines of the equity courts, extend the one principle to all actions, legal as well as equitable, — then there is a single rule governing all actions, and, so far as the dogmas of the common law are inconsistent therewith, they are necessarily abrogated, and form no part of the reformed American procedure. The most conspicuous and characteristic of these dogmas are the notions as to joint rights, and as to the impossibility of severing in the judg- ment when such rights have been averred as the causes of action ; and these notions must be abandoned, if full force and effect are to be given to the language used by the legislature. The whole discussion is thus reduced to a single question : Are these pro- visions of the code to be accepted in their entirety, with all their legitimate and necessary consequences, or are they to be limited and restricted by some exception grafted upon them by the courts, and are their consequences to be abridged and their oper- ation to be confined to those actions which, under the former system, would have been called equitable? I have already, in the former portion of this section, stated, as the guiding principle of interpretation adopted by most of the courts, the doctrine that the equitable rules of the codes were to be applied in all actions, MISJOINDER OF PLAINTIFFS. 253 whatever be their nature. This is certainly the inference to be drawn from the judicial decisions when a general theory of inter- pretation was the subject of discussion ; and one theory, when ac- cepted, ought, beyond a doubt, to be carried out in all the minor details, in the work of creating all the practical rules for admin- istering justice, if any consistent and symmetrical result is desired. But unfortunately, in comparing the decided eases, and in en- deavoring to deduce from them a body of practical rules, we shall find so much inconsistency and vacillation in the judgments of even the same tribunals, that we are sometimes forced to doubt whether any general principle of construction was ever intended to be adopted by the courts, whether they ever accepted any theory of interpretation, and proceeded to work from it as a foundation in constructing a system of procedure. In regard to the particular matter now under consideration, if we collect and compare the decisions which have been made in the different States, it will be difficult, if not impossible, to say, upon their authority, that any definite rule has been established determining the effect of a misjoinder of plaintiffs. § 211. It is certainly settled beyond a doubt that, in all equi- table actions, and in all actions where, upon equitable principles, a co-plaintiff may sometimes be added, not because he is jointly interested with the other, but because his presence as a party is considered necessary to a complete determination of the issues, — as where a husband is sometimes added in an action brought by a wife touching her separate property, — the equitable rule applies in its full force, and a misjoinder of plaintiffs is not a defence to the suit ; it is neither a ground of demurrer, nor can it be set up in the answer as a bar to the relief demanded in the complaint or petition. The name of the unnecessary plaintiff may be struck out by the court, upon motion ; or, if the cause proceeds to trial, a judgment may be rendered in favor of the plaintiff entitled thereto, and the action dismissed as against the others.^ The 1 Ackley v. Tarbox, 31 N. Y. 564 ; for the plaintiffs was reversed by the Allen V. Buffalo, 38 N. Y. 280. Ackley General Term of tlie Supreme Court, be- V. Tarbox was an action by husbanr] and cause of the misjoinder. The Court of wife to recover damages for the conver- Appeals held that lie was an improper sion of a chattel belonging to the wife, party, but that the judgment should not The pleadings showed that the suit was have been reversed on that account. " As really in favor of the wife, and that the soon as the objection was taken, it was husband was added under a notion that the duty of the court to have stricken his he was a necessary party. The judgment name from the proceedings in the action. 254 CIVIL REMEDIES. changes made by the codes themselves, and also by special stat- utes relating to the property rights of married women, have cer- tainly extended this rule to many cases not strictly equitable, even to cases which could not have been maintained at all while the common law was in its integrity. § 212. There is another class of decisions, made in actions of a similar nature to those last mentioned, — that is, actions strictly equitable, and those in which a plaintiff is added in pursuance of a supposed positive rule of practice, although no joint legal right is alleged, — in which it has been held that, if the misjoinder of a plaintiff appears upon the face of the complaint or petition, the defendant may demur as against the party, thus improperly joined, on the ground that the pleading does not state facts sufficient to constitute a cause of action in his favor ; or, if no demurrer is interposed, the same objection may be raised at the trial, and the action dismissed as to him. If the misjoinder does not appear upon the face of the pleading, the defence must be set up in the answer.^ The principal of this class of decisions is the same as that involved in the cases described in the preceding paragraph. The actions in which this method of raising the objection of a misjoinder is permitted, may be equitable or may be legal ; but, if the latter, they are not based upon a joint legal right alleged to be held by all the plaintiffs. In all of them the right of action is assumed to be possessed by one or more of the plaintiffs, who are the real parties in interest, and the other parties are added through some supposed requirement of form or of policy. § 213. We are finally brought to the case of an action strictly legal in its nature, brought by two or more plaintiffs in whose favor a joint right is averred as the ground of recovery. The It can now be done, and the judgment demurred generally as to him ; and that stand, as it ought, — a judgment for the the same objection could be raised on the wife." Altliough this action was nomin- trial, and the complaint dismissed as to ally joint, because it demanded judgment him, but not as to both. No joint cause for the plaintiffs, yet tlie right alleged was of action was here alleged, although, plainly several, and the case is not an nominally, the action was joint. See also authority on the question of joint legal Willard v. Reas,26 Wis. 540, 544, which rights averred in a complaint. holds that, in an action by two or more I Palmer v. Davis, 28 N. Y. 242. plaintiffs, a general demurrer against all Palmer and wife sued on an award made these plaintiflFs, on the ground of a want in her favor. The Court of Appeals held of sufficient facts, is bad if a good cause that the husband was not a proper plain- of action is alleged in favor of one of tiff; that, as this appeared on the face of them, the complaint, the defendant might have MISJOINDER OF PLAINTIFFS. 255 courts of some States have distinctly asserted and applied the ancient common-law rule under these circumstances, notwith- standing the provisions of the codes, and notwithstanding even the liberal scheme of interpretation which had, as a general theory, been adopted by the same tribunals. "When, in such an action, a joint right is averred as arising from contract or from the owner- ship of land or chattels, while in fact no joint right in all exists, but only a several right held by one or a joint one held by some, this error, according to the construction now stated, goes to the entire proceeding and defeats the suit as against all the plaintiffs. If the error appears upon the face of the complaint or petition, the objection may be raised by a general demurrer interposed against all the plaintiffs, on the ground that facts sufficient to constitute a cause of action are not stated in the pleading; and, in the absence of a demurrer, the same objection may be taken at the trial by a motion for a nonsuit or for a dismissal of the action. Finally, if the error is not apparent on the face of the pleading, the defence may be set up in the answer, and is, perhaps, admis- sible under the general denial. This is plainly the original com- mon-law doctrine, unaffected by the reform legislation, and it proceeds upon the assumption that the cause of action is a joint one, that this attribute of jointness is as essential to the mainten- ance of the alleged right as any other material fact, and that the inability to establish the particular averment is not a mere vari- ance, but is a complete failure of proof. ^ As an illustration : if 1 Bartges v. O'Neil, 13 Ohio St. 72 ; for deceit in the sale of lands purchased Masters v. Freeman, 17 Ohio St. 323 ; from the defendant. The purchase price De Bolt V. Carter, 31 Ind. 355 ; Goodnight was paid by the husband, but the convey- V. Goar, .30 Ind. 418 ; Berkshire v. Schultz, ance was made to the wife. The petition 25 Ind. 523; Lipperd u. Edwards, 39 Ind. alleged fraudulent representations, by 165 ; Estabrook v. Messersmith, 18 Wis. which the plaintiffs were induced to en- 545; Frans v. Young, 24 Iowa, 375; 61- gage in the transaction, and a, judgment raud f. Beach, 3 E. D. Smith, 337. Cer- forthe joint damages alleged to have been tain of these cases in/eren(iaZ/j support the sustained by both was demanded. A propositions contained in the text, by demurrer for want of suflBcient facts hav- iiolding that a misjoinder of plaintiffs in ing been overruled, the cause went to such actions may be taken advantage of trial. No representations were shown to by a general demurrer, upon the ground have been made to the wife, nor did she that sufficient facts are not alleged ; the participate in the negotiation and pur- others, however, sustain these propositions chase, nor pay any of the price ; the con- to their full extent. As the subject is one veyance was simply made to her as the of great practical importance, I shall quote result of the bargain at the husband's re- from these decisions at some length. Bart- quest. It will be seen that the cause of ges V. O'Neil, 13 Ohio St. 72, was an action action, as alleged, was strictly a joint one. by a husband and wife to recover damages The plaintiffs did not sue in their marital 256 CrVIL KEMEDIES. the complaint should allege that the plaintiffs A. and B. were partners, and as such had sold and delivered to the defendant capacity; the case was the same as though any other person )iad taken the part in the transaction taken by the wife, and had been made a coplaintiff. The Su- preme Court of Ohio held tliat the petition disclosed no cause of action belonging to tlie plaintiffs jointly, as was averred, and that this defect could be taken advantage of by a general demurrer for a want of sufficient facts ; and that the action should have been dismissed on the trial for the same reason. Compare this decision with that made by the New York Court of Ap- peals in Simar v. Canaday, 53 N. Y. 298, which, to a certain extent, presented the same peculiar features. The Ohio court reaffirmed the doctrine in the subsequent case of Masters o. Freeman, 17 Ohio St. 323, whicli was a legal action brought by two plaintiffs, alleging an indebtedness to them jointly. An answer, setting up facts showing that tliere was no joint right as claimed, having been struck out, and the plaintiffs having recovered a judg- ment, the Supreme Court reversed this judgment, holding tliat the defence con- tained in the answer was a complete bar to the recovery, and also that if the error appeared upon the face of the petition, a demurrer for want of sufficient facts was a proper mode of presenting the objection, but that it was not waived by an omission to demur. Estabrook v. Messersraith, 18 Wis. 545, was an action by two partners, alleging tlieir partnership, their joint ownership of certain goods, and a wrong- ful conversion thereof by the defendants. It appeared on the trial that one of the plaintiffs had been guilty of a fraud upon his creditors in respect of the property in question, which, as the court held, pre- cluded him from recovery ; and it was thereupon claimed by the defendants that, although [the other plaintiff was innocent of the fraud, there could be no recovery in any form, — not by the plaintiffs jointly, because one of them was unable to maintain the action ; and not by the innocent partner, because the right averred in the complaint was a joint one. The plaintiffs were permitted, how- ever, to recover the value of the innocent partner's interest. This judgment was reversed by the Supreme Court, and the grounds of the decision were thus stated by Dixon C. J. (p. 549) : " The plaintiffs were partners, and sued for the alleged wrongful conversion of their partner- ship property; and such is the nature of their legal right — they are so indis- solubly blended — that they must not only join in an action at law, but a right of action must be established in both, or no recovery can be had. It is a general principle, applicable to suits of this na- ture, that all must be entitled to judg- ment, or none ; and in cases where either party is precluded on the ground of fraud, the fraud binds not only the guilty part- ner, but the innocent partner in that suit. ... It would seem that, if the defrauded party [meaning the innocent partner] has any remedy, it is only by a suit in equity, inwhich the objection of joining his guilty copartner as a party plaintiff is easily ob- viated." I must remark, in passing, that the last observation is certainly a strange one, in the face of the statutory provision contained in the Wisconsin code, which purports to abolish all distinctions between legal and equitable actions. That a plain- tiff should he turned out of court in one action called legal, and should be told that he must bring another action called equi- table, for exactly the same demand, and upon exactly the same allegations of fact, and that, in the latter suit, the particular and technical ground of his defeat in the former one could not be objected to his recovery, seems, to say the least, to be a recognition of the " distinction " which the law-making power had so expressly abrogated. The Supreme Court of Indi- ana has approved the same doctrine in substance, although in a form somewhat modified. In Berkshire v. Sliultz,25 Ind. 528, which was an equitable action, the court stated the doctrine in a general form, that when plaintiffs unite in bringing an action, and the complaint does not show a joint cause of action, a demurrer will lie on the ground that sufficient facts are not stated to constitute a cause of action. Goodnight v. Gear, 30 Ind. 418, was a MISJOINDER OF PLAINTIFFS. 257 certain goods, for a stipulated price, and should demand a judg- ment therefor, and on the trial it should appear that A. and B. were not partners as averred, and did not jointly sell and deliver the chattels to the defendant, but that in fact the same were sold and delivered by A. alone, B. having no interest in or connection with the transaction, in pursuance of the rule adopted in these decisions no judgment could be rendered for A. separately ; the action would entirely fail as respects both the plaintiffs. It thus appears that, in at least three States, the courts have, in the most explicit manner, and in well considered opinions, reaffirmed the ancient common-law doctrine in respect to legal actions brought by two or more plaintiffs jointly ; and have held that the joint right must be proved as alleged, or the action must fail as to all the plaintiffs. In other States, it is merely said that a misjoinder is ground for a demurrer interposed to all the plaintiffs for the cause that the complaint or petition does not state facts sufficient to constitute a cause of action. § 214. The question has been presented to the New York Court of Appeals, but has not been passed upon in such an explicit manner as necessarily to establish the rule for that State. In an action brought by two plaintiffs, G. and C, to recover dam- ages for an alleged fraud, the action being in form joint, and the strictly legal action, brought by three right of action in both or all of them ; or plaintiffs, the complaint disclosing a sepa- it must be held insufficient, on a demurrer rate cause of action in favor of each, but assigning for cause that it does not state no joint right in favor of any. Upon a facts sufficient to constitute a cause of general demurrer for want of sufficient action." In Viles i;. Bangs, 36 Wis. 131, facts, the doctrine of the last case was re- 139, 140, the case of Estabrook o. Mes- peated, and the action was dismissed as sersmith, 18 Id. 545, quoted supra in this to all the plaintiffs, although it was con- note, was severely criticised and its cor- ceded that each had a valid claim, which rectness doubted. Cole J. made, in fact, he could have enforced in a separate suit, the same criticism which I have made in In De Bolt v. Carter, 31 Ind. 355, a re- the foregoing note. See also Independent laxation of the doctrine was intimated. School Dist. v. Independent School Dist. After repeating the rule laid down in the No. 2. 60 Iowa, 322 {in an action to re- two preceding decisions, the court said: coverraoney, the objection to a misjoinder " The defect can only be cured by striking of plaintiffs should be made by motion, out the name of the phinliff" improperly not by demurrer). As to proper or im- joined, or by so amending the complaint proper joinder of plaintiffs, see Bork o. as to show a right of action in all the par- Yaw, 46 Iowa, 323; Fuller v. Fuller, 5 ties." But, in Lipperd v. Edwards, 39 Hun, 595; Brett u. First Univ. Soc, 6 Ind. 165, 170, the ancient rule was stated Hun, 149 ; Marie v. Garrison, 83 N. Y. in all its severity. "It seems to be the 14, 29; Loomis v. Brown, 16 Barb. 331; law now, as it was before the code of civil Great West., &c. Co. v. iEtna Ins. Co., practice, that when two or more join in 40 Wis. 378. an action, the complaint must show a 17 258 CIVIL REMEDIES. demand of judgment being for damages due to the plaintiffs* jointly, the complaint was dismissed at the trial, because it appeared that the right of action was held by one of the plain- tiffs alone. In respect to this ruling, the Commission of Appeal said : " Probably the court had the power in this action, if the claim had been made, to have awarded to C. his damages, giving judgment against the other plaintiff. But the court was not bound to do this, and committed no error in defeating the plain- tiffs, because they did not establish a cause of action in which they were hotJi interested." ^ This conclusion is certainly very unsatisfactory. It can hardly be possible that it is a matter of discretion with the court, at the trial, whether it will permit a severance in the judgment or will dismiss the action entirel3^ The rights of litigant parties cannot depend upon so varying a criterion as the opinion or whim of an individual judge. In a subsequent case, where the action was brought by a husband and wife to recover damages for a fraud alleged to have been done to them jointly, and in which a joint right of action was distinctly averred, the same court announced the rule in the following manner, but, as it was entirely unnecessary to the decision of the case, the expression of opinion cannot be regarded as anything more than a dictum : " The defendant moved to dismiss the complaint upon several grounds, and, 1st, that the plaintiffs could not maintain a joint action, and that there was thereby a mis- joinder of parties plaintiff. This point is not rested upon the marital relation of the plaintiffs, and the existence of that relation may, in considering it, be put out of view. It is an ob- jection which may be taken on the trial.^ But it is not an objec- tion which affords good grounds for a motion to dismiss the complaint of both plaintiffs, if either of them has shown that he or she has a good cause of action. In such case the motion must be for a dismissal of the complaint of the plaintiff in whom no right of action appears.^ Whether either of the plaintiffs had shown a good cause of action will be considered under the next two heads." ^ 1 Calkins v. Smith, 48 N. Y. 614, 619, fortunate in his citation of Palmer v. per Earl J. Davis as an authority for his position. 2 Citing code, § 144 (6), § 148 ; Palm- That case was an action by a wife to re- er V. Davis, 28 N. Y. 242. cover damages for the conversion of chat- 3 Simar ti. Canaday, 53 N. Y. 298, 301, tels belonging to her exclusively ; and the per Polger J. The learned judge is un- husband was joined as plaintiff because MISJOINDER OF PLAINTIFFS. 259 § 215. Although not entitled to the weight of authority as a decision, the doctrine last-quoted from the opinion of the New York Court of Appeals is in complete accordance with the true spirit and evident intent of the reform legislation. The conclu- sions reached by the courts of Ohio, Wisconsin, and Indiana, in the cases heretofore cited, plainly result from a failure to grasp the central principle of interpretation which should be applied in construing the codes of procedure, and to push it to its legitimate consequences. That principle, which had been fully recognized by the same tribunals under other circumstances, is the purely equitable nature of the statutory provisions regulating the sub- ject of parties, and the application of the equitable theory to the civil action in all its phases, and under all its uses, without ex- ception or limitation. This is now conceded, almost universally, to be the true interpretation of the clauses of the codes under consideration, whenever the mode of interpretation is to be stated in a general and comprehensive manner. The confusion and con- flict of decision shown in the preceding paragraphs arise from the fact that courts, in determining the special rules applicable to particular classes of cases, have been unwilling to carry out the principle which they have accepted in its most general form, and to adopt the results which necessarily flow from it ; they have shrunk from the changes in the old and familiar methods which such a course would produce. It is very plain, however, that, if we are ever to have a uniform, consistent, simple, and symmetri- cal system of procedure as the outcome of the reform legislation, the courts must be willing to follow the general principles of in- terpretation to their legitimate conclusions. A system in which the equitable doctrine as to parties and judgments is permitted to work its effect upon legal actions to a partial extent, while the it was supposed he was a necessary party portion of his elaborate judgment, holds by reason of the marital relation. The that both the plaintiffs actually held and pos- complaint showed that the interest was sessed the joint right of action, as alleged, anA exclusively in the wife, and'the decision were entitled to the joint judgment de- proceeded upon a ground, as was shown in manded. This beini; the actual state of a preceding paragraph (§ 212), which has the case, all speculations as to what could no relation whatever with a purely legal or could not be done if tliey had not pos- action like the present, brought upon an sessed such a joint cause of action, are, of alleged joint right, and demanding a joint course, entirely oftjier. This expression judgment. Still the opinion of Folger J. of opinion doubless indicates the views would be conclusive of the question, if it of the judges upon an important question ; was not wholly unnecessary to the deci- but it is not an authority as a decided point. sion. He goes on, and in a subsequent S. P. Green v. Green, 69 N. C. 294, 298. 260 CrVIL EEMEDIES. ancient legal doctrine is applied in other instances, would be more objectionable even than the former complete division between equitable and legal proceedings. As the codes do not indicate any line where the equitable doctrine is to stop and the legal to commence, in determining the practical rules, the position of this line must depend upon the views of individual judges and courts, and thus an element of uncertainty and confusion is introduced into the procedure, which can never be removed ; there being no principle by which to settle the respective limits of the two theo- ries or doctrines as to parties, no fixed system of practical rules would ever be established. If, on the other hand, the equitable doctrine should be not only stated as the correct general theory of interpretation, but should be honestly followed out in its ap- plication to all cases, the same practical rules would be deduced alike for legal and for equitable actions, and the resulting system would be definite, certain, and consistent, — the system beyond a doubt contemplated by the legislatures when they enacted the codes in the several States. If this were done, the ancient rules of the common law respecting the nature of joint rights when set up as the basis of recovery, and the effect of alleging such a right in favor of two or more plaintiffs, would disappear, and a severance in the judgment would be as much a matter of course in legal actions as in equitable suits. § 216. There is still another case in respect of which there seems to be a unanimity of decision. When an action is brought by two or more plaintiffs, and the averments of the complaint or petition show that one or more of them have been improperly joined as co-plaintiffs with the rest, the defendant may interpose a demiirrer as to such plaintiff or plaintiffs, not because of a defect of parties, nor because of a misjoinder, but because the complaint or petition does not state facts sufficient to constitute a cause of action in respect to these plaintiffs. The distinction between this case and the one last considered is evident. In the latter, the demurrer is to all the plaintiffs, and the objection ex- tends to the entire action upon the alleged ground that no joint claim or cause of action is shown to exist in all the plaintiffs. In the present case, it is conceded that a cause of action is shown in favor of one or more of the plaintiffs, and the objection goes onl}' to the others in whose favor no cause of action appears. This mode of objecting to a misjoinder of plaintiffs may be used in ACTIONS BY OWNERS OF LAND. 261 legal as well as ia equitable actions. Of course, if the obiection does not appear upon the face of the pleading, but exists as a matter of fact, it may and should be set up as a defence in the answer.^ Mules as to Plaintiffs in Particular Classes of Cases. § 217. I now pass from this examination of the doctrine in its general scope to its application in the various classes of cases which can arise in the administration of justice. The further discussion will be pursued in the following order : First, Parties plaintiff in legal actions ; Second, Actions by or between husband and wife ; Third, Parties plaintiff in equitable actions. The first of these divisions will be separated into : 1. Actions by owners in common and by joint owners of land ; 2. Actions by joint owners of chattels ; 8. Actions by persons having a joint right arising from contract ; 4. Actions by persons having several rights aris- ing from contract ; 5. Actions by persons having a joint right arising from tort ; 6. Actions by persons having several rights arising from torts. The second and third of the general divisions do not admit of a similar subdivision. § 218. Pirst : The Union or Separation of Plaintiffs in so-called Legal Actions. I. Actions hy owners in common, or hy joint owners of land. The change in the common law produced by statute throughout the United States has practically abolished joint ownership in land, except in the case of those holding alieni juris, as trustees. The statutory rule is, I believe, quite univer- sal among the States, that wheii two or more persons succeed by inheritance to the same land, their ownership is common and not joint, and when land is conveyed to several persons in their own right, without any express direction to the contrary, their owner- ship also is common .2 The exceptions to this rule are trustees 1 The rule as stated in the text is against all the defendants, or it is bad on either expressly approved, or is impliedly a general demurrer for want of sufficient acknowledged, in several of the cases cited facts, as against the plaintiff improperly under the preceding paragraph. See also joined) ; People v. Haggin, 67 Cal. 679, (if Willard v. Reas, 26 Wis. 540, 544 ; Peo- an action is brought by entirely wrong pie V. Crooks, 63 N. Y. 648. In Missouri plaintiff or plaintiffs, the objection can be and California the codes expressly state, raised by such a general demurrer. See as one ground of demurrer, the misjoinder .also Tennant v. Pfester, 51 Cal. 511; of the parties, plaintiff or defendant. Harris v. Harris, 61 Ind. 117. See Parker v. Small, 68 Ind. 349 (a 2 Wash, on Eeal Prop., vol. 1, p. 409 complaint must show a cause of action (note). 262 CIVIL KEMEDIES. who are generally omitted from the operations of the statutes, so that a grant or devise to several as trustees creates a joint owner- ship ; and in certain States, as in New York, the peculiar modi- fication of joint estates created by a conveyance to a husband and wife, is held to be unaffected by the statutes, and to exist as at the common law. On the other hand, the legislation of some States has abolished joint ownership, in an absolute manner, so that it cannot be created even by the act of the parties. As a conclusion it is enough to say that the common-law joint tenancy of land by persons holding sui juris does not practically exist in this country.! At the common law all the joint owners were required to unite in any action, whether real or personal, based upon theii- proprietary right. With owners in common, the rule was not so uniform. In personal actions for injuries done to the land, it was proper for all the owners to unite ; in actions to re- cover possession, however, each sued for his individual interest, although this particular doctrine was doubtless modified in many States, as it was in New York. Finally, in actions for rent, if the letting was joint, or if the reservation was of an entire rent to all, all would unite as plaintiffs ; but if the rent was reserved to them separately in distinct parts, each must sue for his own share.^ It should be remembered that, in the action of ejectment at the common law, the plaintiff was the fictitious person called John Doe, and the real claimant was his lessor. It was only in the United States, where the fictions of the action had generally been abolished by statute, that it was possible for joint owners or owners in common to appear as the actual plaintiffs in ejectment. I now pass to cases decided since the enactment of the codes in the several States. § 219. Where the rent is entire, owners in common of the demised land may unite in an action to recover it from the lessee ; and upon the same principle they may join in an action to recover the rent from a person to whom it had been paid for their use ; for example, devisees in fee in remainder, after a life estate, may join in a suit against the executor of the deceased life-tenant to recover the rent which he had collected from the lessee subsequent to the death.^ A joinder of all does not, how- 1 Wash, on Eeal Prop., vol. 1, p. 409 " Marshall v. Moseley, 21 N. Y. 280, (note). 287, per Comstock J. : "The remaining 2 See supra, §§ 187, 189, 190. 1 Ch. question is, whether the plaintiffs can PI. (Springfield ed., 1840), pp. 13, 65. maintain this action jointly. We are of ACTIONS BY OWNERS OF LAND. 263 ever, seem to be absolutely necessary. It seems that each may sue for his own share of the rent, even though it accrue as an entire sum to all the owners in commou.i The only possible alternative, however, is a suit by all or a suit by each for his own portion separately ; an action cannot be maintained by a portion more than one and less than all.^ When the lessor of land dies intestate, the term being unexpired, his administrator is the only proper party to sue for the unpaid rent which accrued prior to the death, while the heirs, either jointly or separately, must sue for that accruing subsequently thereto.^ In actions brought to recover damages for torts done to the land, such as trespasses, nuisances, and the like, the common-law rule remains iinchanged, and all the owners in common must unite as plaintiifs ; * even when they the opinion that they can. If the rent had not been collected, the plaintiffs, as ten- ants in common of the reversion, might have joined in an action to recover it. This rule appears to be extremely well settled, the only doubt suggested by the authorities being whether they could sever in their suits if they had elected to do so. These authorities will also show that the plaintiffs, having the same common in- terest in the money which the defendant received as rent that belonged to them, can uoite in their action to recover it out of his hands, and this, we think, is also clear upon principle." See Cruger v. McLaury, 41 N. Y. 219, which settles the doubt stated by Comstock J., and holds that one of the owners in common may sue for his share of an entire rent. See infra, § 220, n. (2). 1 Jones V. Felch, 3 Bosw. 63 ; Porter V. Bleiler, 17 Barb. 149. In the first of these cases land had been leased, and the lessor died, leaving six children, his only heirs. One of them brings this action for his portion of the rent accruing after the death of his ancestor, the complaint setting forth all these facts. On a de- murrer by the defendant, the New York Superior Court held the common-law rule to be that, under such circumstances, each owner in common might sue for his por- tion, or all might join in an action for the whole, and that this rule had not been changed by the code. Porter v. Bleiler sim- ply holds that owners in common moyjoin. 2 King V. Anderson, 20 Ind. 385. Lands had been leased by an owner who died intestate, leaving heirs his children and certain grandchildren. This action was brought by a portion of the heirs to recover two years' rent, for the first year accruing before the death, and for the second year accruing after the death. The court held that the administrator was the only proper person to sue for the rent which had accrued prior to the death, and the heirs for that accruing after the death. A portion of the heirs, however, could not sue ; all should have been joined ; and as the shares of the children and of the grandchildren were unequal, the complaint should have shown which were children and which grandchildren, and their respective portions of the whole rent. The case does not hold that one heir could not maintain the action. ^ King V. Anderson, 20 Ind. 385 : Craw- ford V. Gunn, 35 Iowa, 548. 4 De Puy V. Strong, 37 N. Y. 372 ; 3 Keyes, 603 ; Hill v. Gibbs, 5 Hill, 56 ; Parke v. Kilham, 8 Cal. 77 (diversion of water). Wausau Boom Co. v. Plumer, 49 Wis. 112 (the persons in actual posses- sion may maintain trespass). The re- mainder-man and life tenants may join as co-plaintiffs in suit for a nuisance, e. g. a dam. Scheffer v. Eau Claire, 51 Wis. 385 ; Seymour v. Carpenter, 51 id. 413. The separate owners of separate lands, each injured by the same nuisance, e. (j. a dam, or diversion of water, cannot join as co- plaintiffs in an action for damages ; but they can join in an equitable action to 264 CIVIL REMEDIES. hold under different titles, they must still join, as, for example, the heirs-at-law and devisees of the same land, in an action for injuries done to the inheritance,^ or the owners in common of a mill, who derive their rights under different conveyances, in a suit for the diversion of water from their mill.^ The owners in common must also join in an action to recover damages for fraud practised in the sale of the land to them ; a separate suit cannot be maintained.^ Administrators or executors cannot sue for tres- passes or other injuries done to the land after the death of the owner whom they represent; the heirs or the devisees, as the case may be, are the only proper plaintiffs.* § 220. Owners in common need not unite in an action to re- cover possession ; each may bring a separate suit for his undivided share.^ This is a very familiar rule, and such actions are con- stantly brought by widows to recover their dower before it has been set out to them or admeasured, and by individual heirs. Of course all the owners may join, and must join if the design is to recover possession of the entire tract over which the common ownership extends, as a separate parcel of land ; when one sues, he can only demand and obtain a judgment for his own undivided enjoin and renaove the nuisance. Palmer divided sixth part of the premises, on V. Waddell, 22 Kan. 352. account of the condition broken. The 1 Van Deusen «. Young, 29 Barb. 9. The Court of Appeals held the action properly plaintiffs were some heirs, and the others brought ; that all the heirs need not be devisees of the deceased owner of a farm, joined ; and, also, that each of the heirs and brought an action to recover damages might have maintained an action for the for an injury to the inheritance. Hoge- rent. This last proposition settles the boom J. said (p. 19): "They were all doubt expressed by Comstock J. in Mar- owners, and jointly interested. The in- shall v. Moseley, cited in the note (2) to jury is to their common property, and the § 219, so far as the law of New York is damages to all. They derive title from a concerned ; and, in that State, although common ancestor, and, all together, rep- the rent is entire, and accruing to all the resent the estate which lie held in his life- owners in common, each may sue. See time, and for an injury to which they may Fisher v. Hall, 41 N. Y. 416, in which it be regarded as his proper representatives, may seem to be intimated that all must This is one of the cases where tenants in join in a suit to recover possession of the common may and ouglit to join." land ; but there is actually no discrepancy 2 Samuels u. Blanehard, 25 Wis. 329. in the two decisions. In the case last 8 Lawrence v. Montgomery, 37 Cal. cited all the owners but one united in a 183, 188, per Crockett J. See Foster i;. suit to recover possession of the tntire Elliott, 33 Iowa, 216, 224. pared of land ; and in such an action a * Aubuchon -c. Lory, 33 Mo. 99. joinder of all the owners is, of course, 5 Cruger v. McLaury, 41 N. Y. 219. necessary. The court did not intimate One K. had given a lease in fee of lands, that one co-owner may not sue for his an. reserving rent, with a clause of re-entry on divided share. See also Hasbrouck v. non-payment. One of his six children Bunce, 8 N. Y. Sup. Ct. 309, 311. and heirs-at-law sues to recover an un- ACTIONS BY OWNEKS OF CHATTELS. 265 portion of the common premises. The election between modes of instituting the action goes no further, however ; it cannot be prosecuted by a portion of the co-owners less than all ; it must be by all or by one.'^ In pursuance of this general principle, the same rule has been extended to actions brought to recover a fund, or a portion thereof, when by reason of some judicial proceed- ings, this fund stands in the place of the land itself. Thus, where the land of two co-owners had been taken for public purposes, and the amount awarded as compensation had not been paid over, because the owners were at the time unknown, one of them was permitted to recover his portion of the whole sum in a separate action, the money representing the land, and the action itself being analogous to one brought to recover an undivided share of that land.2 In certain States, the subject now under consideration is regulated by express statute. Thus, in California, joint owners and owners in common may sue jointly or severally, or any num- ber of them may sue, and in like manner they may be sued.^ Under this statute a portion of the co-owners of a mine were suffered to unite in an action, and recover possession of their shares from intruding wrong-doers.* Another statute of the same State provides that any persons claiming lands under a common source of title may unite in actions relating to the title. ^ Prior to the statute first mentioned, joint owners,''and, it seems, owners in common,^ were required to join in actions brought to recover possession of lands so owned. § 221. II. Actions by joint owners of chattels. The ownership 1 Fisher v. Hall, 41 N. Y. 416. See 2 Van Wart v. Price, 14 Abb. Pr. 4 Hubbell V. Lerch, 58 N. Y. 237, 241. All (note), the tenants in common must join or only ' See supra, § 117, note, one must sue, a joint action cannot be * GoUer v. Fett, 30 Cal. 481. See maintained by a part ; if a joint action is Touchard v. Keyes, 21 Cal. 202. See brought and the consent of any to be also Reynolds v. Hosmer, 45 Cal. 616, 631. plaintiffs cannot be obtained they must The statute was held to apply to an action be joined as defendants. Hasbrouck v. brought to recover damages, being the Bunce, 62 N. Y. 475. One co-tenant value of the land which had been sold on may, in general, sue alone for his share, a judgment obtained by the defendant, Morenhaut u. "Wilson, 52 Cal. 262. But which judgment had been subsequently in an action to recover land for a breach reversed on appeal. If one of the co- of a condition subsequent, all the grant- owners dies, his executor or administrator ors or their heirs mnst join ; an ac- may be joined with the other co-owners tion cannot be maintained by one of in California. the co-tenants for his share ; Cook v. ^ Laws of Cal., 1867-8, p. 158, § 1. Wardens, &c. of St. Paul's Ch., 5 Hun, ' Dewey v. Lambier, 7 Cal. 347. 293 ^ Johnson v. Sepulbeda, 5 Cal. 149. 266 CIVIL BEMEDIES. of chattels by two or more persons is quite different in its inci- dents from the similar ownership of lands, and it must be described rather than defined. It is not a, joint ownership in the pure com- nlon-law signification of that term, since it does not involve the right of survivorship ; there is no survivorship among the co- owners of chattels, whether partners or not, and at the death of one, his interest passes to his personal representatives. On the other hand, this united interest of the co-proprietors is so close that it cannot be separated except by mutual consent. The com^ mon law provides no mode of partition. The right of either co- owner may be transferred by any valid act inter vivos, and it may be devolved at his death ; but it is impossible by any legal com- pulsory means for one to enforce a partition against his fellow- owners, even when such a division would be physically possible, unless it be true, as said in one case, that such owner may man- ually separate, and afterwards hold for his own exclusive use, when the chattels themselves are capable of being weighed or measured, so that an accurate division can be easily made, — as in the case of grain.^ Even in the settlement of a partnership, the only judicial mode of a final division is a sale of all the assets, and their consequent conversion into money, which is distributed among the partners. In this respect, the ownership of chattels by two or more persons is more joint in its nature than the joint ownership of lands. From this notion of the oneness of the interest residing in the owners of things personal, it follows that a joinder of all in any actions founded upon the property in the chattels is even more necessary, and is less open to exception, than in the case of an ownership of land, since one co-owner of a chattel has no right to its exclusive possession as against the others, and cannot recover its possession from them by action analogous to replevin,^ or its value in actions like trover or tres- 1 Tripp V. Eiley, 15 Barb. 333. It is cannot maintain an action for the posses- said in this case — while conceding that sion thereof against the other ; nor in the common law furnished no remedy— such an action can the defendant have a that one co-owner may sever his sliare in judgment awarding the possession or a grain and other such articles which can return of the chattel to him : his only be weighed or measured, and, of course, judgment is for costs. Cross v. Hulett, may hold exclusive possession of the part 53 Mo. 397 ; Mills v. Malott, 43 Ind. 248, thus severed; but no authority is cited 251. As to suits by one co-owner of in support of the proposition ; and the chattels against the other for a conver- judge admits that he is deciding a point sion, see Hewell ». Owens, 51 Cal. 670 ; for the first time. Stall v. WUbur, 77 N. Y. 158. '^ One of two joint owners of a chattel ACTIONS BY OWNERS OF CHATTELS. 267 pass ; and since a direct judicial partition of the interests is unknown, it follows by the clearest logic that such exclusive possession, or such partition, cannot be permitted indirectly by means of an action against a third person in the name of one co- owner, the result of which, if successful, would be to give him an exclusive, or an apparently exclusive, right. When the object of the property is land, the interest of each co-owner is regarded as separate /or all purposes except possession; and, in strict accord- ance with this notion, he is permitted to sue alone, to recover his undivided part of the land, or his part of the rent payable for the use of it ; but when the object of the property is a chattel or chattels, the interest of all the owners is conceived of as a unit both in respect to the right of proprietorship, and to the posses- sion, and a single one cannot sue for his part of the thing itself, nor for his share of the profits payable for its use, or of its value if it be taken, converted, or sold, or of the damages if it be injured ; all must join so as to represent this unity of interest. These general doctiines, which were fully settled in the common law, are unchanged by the new procedure, as will appear from the rules established by the following cases. § 222. The part-owners of ships and other vessels are jointly interested, so far as concerns the maintaining of actions touching the property in them or their use, and must all unite in such actions; as, for example, in a suit to recover freight, whether from the shipper or from a person to whom it has been paid by the shipper.^ It would seem, however, that a portion, one or more, of such owners may sue when the residue refuse to join as plaintifPs, by making such dissentients defendants, and insert- ing appropriate averments in the complaint or petition ; this course is certainly proper if full effect is to be given to the pro- visions of the codes regulating this particular subject, and they are not to be restricted in their application to equitable actions.^ 1 Merritt v. Walsh, 32 N. Y. 685 ; Don- of Appeals held that all should have been rell V. Walsh, 3.3 N. Y. 43 ; 6 Bosw. 621. joined as plaintiffs ; but as the " defect " The first of these cases was an action by had not been taken advantage of on de- certain part-owners to recover their share murrer, — it appearing on the face of the of the freight which had been collected by complaint, — the objection was waived, the defendant, — an agent for the ship. The doctrine stated in the text was The complaint alleged that two of the broadly laid down, the court saying that plaintiffs owned each one-sixteenth, and the part-owners could not sue separately, two of them each one-eighth, and the Taein^ joint owners. other part-owners were not joined, either 2 Coster v. New York & Erie Railroad, as plaintiffs or as defendants. The Court 5 Duer, 677 ; 3 Abb. Pr. 332. The action 268 CIVIL REMEDIES. Under peculiar circumstances, a portion of the part-owners have been suffered to maintain an action of a similar general nature without even making the others defendants, as stated in the foot- note.^ § 223. It is clearly the rule, established under the new system as well as under the old, that, properly, all the owners of a chat- tel, whether partners or not, must join in an action to recover damages for injuries done to it,^ or for a wrongful taking or con- version of it,3 or to recover its possession.* This rule is so firmly settled that nothing less than an express contract in reference to the chattel with one of the co-owners in his own name, by which promises are made directly to him, will suffice to permit a sever- ance. In such a case, while he may sue alone, in virtue of the express undertaking to and with him,^ yet all the others may, if they so elect, join with him in an action on the contract ; for ex- ample, a sale of the chattel and a promise to pay the price.® § 221. The new procedure has not, in general, changed the former rules as to the rights and powers of surviving partners when one or more of the firm have died. Now, as before, the surviv- ing partner or partners have the exclusive possession of the firm was for the rent of a ship which had been ^ Wells v. Cone, 55 Barb. 585 ; Hays leased. The court said that a /ejraZ action v. Crist, 4 Kans. 350. See also Swart- could not be maintained by a portion of hout v. Chicago, &g. R. R., 49 Wis. 625 ; the part-owners, but that an equitable one Pratt v. Radford, 52 id. 114. might be, under the circumstances and in ' Gock v. Keneda, 29 Barb. 120. See the manner stated in the text. If I am also Fuller v. Fuller, 5 Hun, 595 ; Reeder right in the positions heretofore advanced, v. Sayre, 70 N. Y. 180, 181, 190 ; Spald- this distinction has been abrogated, and ing v. Black, 22 Kans. 55 ; as to action by plaintiffs should not be turned out of court one co-owner against another for conver- because their action is (so called) legal, sion, see Stall v. Wilbur, 77 N. Y. 158 ; and not equitable, when the facts are prop- Hewell v. Owens, 51 Cal. 570. erly alleged. < Bush v. Groom, 9 Bush, 675, 678 ; 1 Bishop V. Edmiston, 16 Abb. Pr. Luke v. Marshall, 5 J. J. Marsh. 356. 466 (G. T.) The two plaintiffs and one See also Russell v. Seymour, 39 Wis. McL. owned a ship. It was insured and 570 ; Sleets v. Chaffee, 48 id. 617 ; Seip lost, and defendant collected the insurance v. Tilghman, 23 Kans. 289. money. He had settled with McL. for ^ Justice v. Phillips, 3 Bush (Ky.), 200, the latter's share, and the plaintiffs sue An action by one for the price of cattle for their shares. The court held that they sold by him and in his name, the promise were tenants in common, and could bring to pay being made to him, although he and the action without joining the other co- another were the co-owners ; the court owner. This reason given for the deci- saying that both might have sued, but that sion was clearly wrong. The decision he could sue alone on tlie express promise, would have been in exact conformity with 6 Silliman v. Tuttle, 45 Barb. 171. the letter and the spirit of the code if Action by all the co-owners where a sale McL. had been made a defendant, and the had been made, as in the last preceding facts in regard to him had been alleged. case, by one of them alone. ACTIONS BY OWNERS OF CHATTELS. 269 assets, for the purpose of paying its debts and settling its affairs. They alone can prosecute all actions of a legal nature, to recover debts, or the possession of property, or its value, or damages for its wrongful conversion or misuse. The remedy on all rights of action held by or due to the firm, is to be pursued in their names, and the personal representatives of the deceased member or members cannot be joined in such actions by virtue of any interest which they may have in the proceeds, and in the final winding up of the partnership accounts. This doctrine, however, does not mean that every thing in action, belonging to the firm at the time of the death of a member, must invariably be enforced by the survivor, or not at all ; he is simply the proper and only person to sue, as long as the thing in action or other personal property remains a part of the firm assets. The survivor may assign such a firm asset, and the assignee would thereupon be entitled to sue in his own name, as in the case of any other assignment. When, therefore, a surviving partner had trans- ferred a firm demand to the administrator of the deceased partner, such administrator would be alone able to enforce the collection by suit in his own name, not, however, b}' virtue of his original representative capacity, but only in his character as assignee.^ § 225. The rule that all the co-owners of a chattel must unite in any action founded upon the property in it, has been pushed by some of the courts to its extreme limits, — to the extent, as it seems to me, in fact, of nullifying an express and very salutary provision of the reform legislation. I have already discussed the general principle of interpretation referred to with sufficient fulness,^ and shall simply state the additional decisions, without further comment. When, in the case of partners or other joint owners of personal property, one of them is legally disabled, by means of some act of his own, from asserting or maintaining any right in himself, or, in other words, when he has put himself in such a condition that, if he were the sole owner, he would not have a right of action in reference to the property, it has been held that all the partners or co-owners cannot prosecute an action in their joint names, even in respect of the interest of those who have done no acts impairing their individual rights. It is said that, as the right of action is essentially and completely joint, 1 Eoys V. Vilas, 18 Wis. 169 ; Brown 2 See supra, §§ 221-223, and cases V. Allen, 35 Iowa, 306, 311. cited. 270 CIVIL REMEDIES. and as therefore all the co-owners must be able to sue, this unity of interest cannot be severed and a recovery permitted for that share of the interest which, as between themselves, belongs to the innocent rather than to the guilty owners. Upon the same prin- ciple, and applying iu the like manner the rigid doctrine of an abso- lute unity of right among the co-owners of chattels, the one who had done no act affecting his individual interest cannot sue, in respect of that interest, to recover the portion of the entire demand due to himself by making the others defendants.^ It is plain from the propositions contained in this subdivision, and from the cases cited in their support, that the courts have made no substantial changes, as results of the reformatory legislation, in the rules 1 Estabrook v. Messersraith, 18 Wis. 545; Frans v. Young, 24 Iowa, 375; Nightingale v. Scannell, 6 Cal. 506 ; and see Rainey v. Smizer, 28 Mo. 310 ; Clark t'. Cable, 21 Mo. 223 ; Andrews v. Moke- lumne, &e. Co., 7 Cal. 330. In the first of these cases, Estabrook and Bromley, partners, sued for the taking and conver- sion of certain partnership property. The defendant, a sheriff, justified under an at- tachment against a certain debtor, that the goods were his property, and that he had assigned them to the plaintiffs in fraud of his creditors, &c. On the trial the fraud was proved against the said judgment debtor, and against Bromley, one of the plaintiffs ; but Estabrook the other plaintiflf", was ignorant of the fraud, and paid full value, and was a bona fide owner of the goods jointly with B.. and as his partner. The plaintifls were allowed on the trial to recover the value of E.'s interest in the goods. The Supreme Court of Wisconsin reversed this ruling, and held that no recovery was possible, either by both partners or by either in an action at law, but that E. could maintain a suit in equity. See opinion of Dixon C. J., quoted supra, in note (1) to § 213. In Frans v. Young, two persons were joint owners of a horse, and one of them pledged it to the defendant. The two brought this action to recover possession, on the ground that the pledge was invalid against the two. The Supreme Court of Iowa held that the two, suing jointly, could not maintain the action, because one of them was estopped by his own act, and the non-pledging owner could not prosecute an action in his own name, because both co-owners must join in such a suit ; citing Russell V. Allen, 18 N. Y. 173; Tripp «. Riley, 15 Barb. 833. The decisions cited from the Missouri Reports are very em- phatic in their statement of the same doc- trine, and strongly repudiate the notion of one co-owner bringing an action, and making his fellow-owner a defendant. In Nightingale v. Scannell, the Supreme Court of California, while expressly re- fusing to decide whether an action could be brought in such a manner by one joint owner, said that, if so, the plaintiff must recover for the entire cause of action. " The law will not tolerate the division of a joint right of action into several actions ; the whole cause of action must be determined in one, and thus avoid a multiplicity of suits." The correctness of all these decisions must evidently de- pend upon the interpretation to be finally given to the provisions of the codes under review. Do they apply the equitable doctrine which they embody to all actions alike? and are they to be thus accepted according to their plain import ? Or, are exceptions to be interpolated which will confine their operation to equitable suits alone 1 When this question is finally settled by the courts, a uniformity iu the procedure will, of course, result. See Hill V. Marsh, 46 Ind. 218. The case of Esta- brook V. Messersmith, quoted above in this note, has been severely criticised, and its correctness questioned, in Viles t'. Bangs, 36 Wis. 131, 139, UO, per Cole J. JOINT ACTIONS ON CONTRACT. 271 concerning the parties plaintiff in actions by the co-owners of personal property. § 226. III. Actions b^ persons having joint rights arising from contract. The general effect of the provisions contained in the codes upon the common-law doctrines respecting joint rights of action, has already been discussed with sufficient fulness, and I shall simply add to that discussion some examples and illustra- tions furnished by the decided cases. It was shown that the ancient rule, requiring all the joint obligees, covenantees, and promisees to' unite in actions brought upon their contracts, had not been abrogated, and only modified perhaps in the single par- ticular of permitting parties to be made defendants who refuse to join as plaintiffs. The doctrine of equity in this respect was substantially the same as that of the law, and demanded a union of all joint claimants to prosecute their joint right hj a suit in chancery. When the doctrine of equity was made statutory, and was applied to all classes of actions, it therefore wrought no change in the practical rules. Of course these provisions of the codes as to parties have not of themselves altered in any manner the principles which the common law had established for deter- mining whether a right created hj any contract is joint or several. In actions ex contractu, all the persons having a joint interest must be made plaintiffs, and, when one of them dies, the action must be brought or must proceed in the names of the survivors ; the personal representatives of the deceased obligee or promisee cannot be joined as co-plaintiffs ; and in the same manner, in actions ex delicto for injuries to personal property, all the joint owners must unite, and, if one of them dies, the action is to be prosecuted by the survivors alone. These common-law rules remain in full force.' It has been held that two or more obligees in an injunction undertaking, although their interests were entirely 1 Bucknam v. Brett, 35 Barb. 596 ; 13 493 ; McConnell v. Braynor, 63 Mo. 461 ; Abb. Pr. 119 ; Daby v. Ericsson, 45 N. Y. Marie v. Garrison, 83 N. Y. 14, 29 ; 786. The survivor was held to be the Truckle v. Swayne, 71 Ind. 562. All proper party to sue, although, by an ar- persons entitled to shares in the same rangeraent between himself and the rep- debt may join in an action to recover it, resentatives of the estate of the deceased, e. g. assignees of different portions. Brett the proceeds were to belong exclusively v. First Univ. Soc, 5 Hun, 149. Where to them, and he disclaimed all interest the wards should be joined as co-plaintiffs therein. See also Carrere v. SpofEord, 15 in a suit by a new guardian on the former Abb. Pr. N. s. 47, 48, 49. That all joint guardian's bond, see Wilson v. Houston, creditors or promisees must join as plain- 76 N. C. 375. tiffs, see Porter v. Fletcher, 25 Minn. 272 CIVIL REMEDIES. separate, and no joint claim for damages existed, may unite in an action upon it ; ^ but in another similar case, where the action was joint in form, the recovery was limited to the damages suffered by the plaintiffs jointly, and they were not permitted to show what each had separately sustained.^ In an action on a penal bond running to several persons jointly, the common-law rule required all the obligees to be made plaintiffs, although the condition was to perform distinct acts for the benefit of the obligees severally .^ When a deed of conveyance of land is given to two or more grantees, the implied covenants of title, if there be any, are joint, and give only a joint right of action, so that one of the grantees cannot sue alone for a breach.* ^This is a reaffirmance of the rule applicable to the same circumstances under the common law. § 227. It has been said, in a. decision made since the code, that in an action, whether legal or equitable, by a firm, all the part- ners, even those that are dormant, must unite as plaintiffs ; ^ but this case can hardly be regarded as correct, for it was well settled at the common law that dormant partners need not be joined, > 1 Loomis V. Brown, 16 Barb. 325. See opinion of Gridley J., quoted supra, § 202. The decision was not placed upon tlie ground tliat tlie plaintiffs' rights were joint. It was considered that the code permitted a union of plaintiifs in legal actions, which was not possible at the common law. 2 Fowler v. Prisbie, 37 Cal. 34. A number of persons were in possession of land, not jointly, nor in common, but each possessing and cultiyating a separate parcel of the whole. An action was brought to recover the entire tract, and, by the provisions of the California statute referred to in a preceding paragraph, all these occupants were made defendants. An injunction was granted restraining them all from interfering, &c., with the crops, and the ordinary undertaking was given to them. The persons thus enjoined bring this action on the undertaking ; and the rule stated in the text was expressly laid down by the court. It would be dif- ficult to reconcile these two cases. 3 Pearce v. Hitchcock, 2 N. Y. 388, per Jewett C. J. See, however, Alexander V. Jacoby, 23 Ohio St. 358, 383. An at- tachment bond had been given, joint in form, to A., B. and C, and goods belong- ing to A. and B. had been seized. The suit terminating in their favor, they brought an action on the bond, without joining C. as a co-plaintiff. It was held that, though in form joint, the interests of the obligees were several ; and the action by A. and B. was sustained. * Lawrence v. Montgomery, 37 Cal. 183. ^ Secor V. Keller, 4 Duer, 416. Un- doubtedly, the dormant partners are in- terested in the event of the action ; but they were equally so at the common law. They were not required to be made par- ties by the former rule, because the con- tract was regarded as being expressly made with the ostensible partners, who acted as agents for the dormant ones. They seem, therefore, to fall within the provision which allows actions to be brought by persons in whose name a con- tract is made for the benefit of another. See Beudell v. Hettrick, 45 How. Pr. 198 ; Lewis V. Greider, 51 N. Y. 231 ; 49 Barb. 606. JOINT ACTIONS ON CONTEAOT. 273 and it does not seem that anything in the code has changed the rule in this particular. When eleven officers [harbor masters] all engaged in the same duties, and each entitled to an equal share, one-eleventh, of the total fees, made an agreement by which one of them undertook to collect all the fees, and to account for and pay over to the other ten their portions of the same, it was held that all of the ten must unite in an action brought against the eleventh to recover from him the amounts due to them which he had received; one could not sue alone.^ Persons may sometimes be united as plaintiff's in an action upon a written contract, even though they are not parties thereto, and the terms of the agreement make no direct reference to them, if they, not- witlistanding, have an actual interest jointly with the ostensible parties in the subject-matter of the contract, and in the cause of action arising upon it.^ The authorities of a county appropriated $117,600 to procure volunteers to fill the quota of the county, and ordered $300 to be paid as bounty to each volunteer out of this fund. Eighty-six persons, who had already enlisted in the military service, agreed with the county officials that, in consider- ation of being paid said bounty, they would form a part of its quota, and they were thereupon actually enrolled in and credited to the number of volunteers required from the county. The bounty not being paid, the entire eighty-six united in an action demanding judgment for the total amount of their bounties, $25,800, and the action was held to be properly brought.^ § 228. The common-law theory of joint right, growing out of contract, equally with the joint right arising from the ownership of chattels, has been carried by certain cases so far that manifest injustice had been done, and the enforcement of conceded rights has been defeated, in order that the courts should not depart from an arbitrary and technical rule. These cases have held that, 1 Dean v. Chamberlin, 6 Duer, 691. action on the bond jointly with those first The complaint, stating these facts, and mentioned. See tlie facts and opinion, alleging that defendant had refused to ac- supra, § 202. count for and pay over to the single plain- ' Young v. Board of Commissioners, tiff his share, was held bad on demurrer ; 25 Ind. 295, 299. Each plaintiff was only all should have joined as plaintiffs. interested to the extent of $300. There 2 Rutledge v. Corbin, 10 Ohio St. 478. was no joint right in the whole fund. A " forthcoming bond " having been given This case, therefore, illustrates, in a clear to the sheriff for the benefit of certain manner, the proposition lieretofore made, attaching creditors named in it as the — that the code admits of a joinder of parties benefited, subsequent attaching plaintiffs in instances wliere such joinder creditors were permitted to unite in the was not permitted at the common law. 18 274 CIVIL EEMEDIES. where a contract is made by or with two or more on the one part, so that a joint right of action is held by them, the only possible action is one brought by all, if living ; that one of them cannot sue on the contract making his co-contractor a defendant, with proper averments in the pleading, whether he seeks to re- cover the whole amount due, or only his own individual interest therein, and though the co-contractor refuses to join in the suit for any reason, even if the latter has been paid his share.^ I have already discussed this topic at large, and fully expressed my opinion upon it.^ The decisions last mentioned, and the rule which they approve, are directly opposed to the letter of the codes, which makes no restriction to equitable suits, and are in violent antagonism with the evident intent of the reformed procedure. It was said by the court, in one case, that if an action by one of the creditors was permitted, under the circum- stances stilted, the debtor would be exposed to subsequent suits and recoveries from the other creditors. This remark shows an entire misapprehension of the meaning and purpose of the statu- tory provision. It requires the dissenting creditor or co-con- tractor, who refuses to be a plaintiff, to be made a defendant, for the very purpose of concluding him, by the judgment, from any subsequent prosecution on his own behalf He is added as a party, and " has his day in court," and this will be a complete bar to a future attempt on his own part, if he should change his mind. No possible injustice could therefore be done to the de- fendant, and great injustice would necessarily be done to the creditor who desires to enforce his lawful demand, if the utterly 1 Rainey v. Smizer, 28 Mo. 310; Clark consent of the other ; but this is the very V. Cable, 21 Mo. 223 ; Andrews v. Moke- reason why he should be allowed to bring lumne Hill Co., 7 Cal. 330. In the first the a-ction in his own name, and to save the of the cases, the learned judge, in giving rights of the defendant by making the dis- his reasons why such an action cannot be sentient creditor a co-defendant, and thus raiiintained by one joint creditor, even concluding himhy the judgment. In Kansas a though the other refuse to prosecufe, more liberal view has been taken of the said : " If one will say that lie has no statute. When one of two partners had right of action, and will not sue, why transferred certain firm property without should he not have as much weight as rightful authority, as was claimed, the the other who says there is a, cause of other co-partner was permitted to main- action ? " The answer is very simple : tain an action in his own name against because he has no right, in renouncing his the transferee, to recover the value of his own claims, to renounce those of his co- own interest in the property. Hogen- contractor. It may be the judge's ques- dobler v. Lyon, 12 Eans. 276. tion is a reason for not permitting one to 2 See supra, § 204, and notes, and Hill bring anaction in io//inames against tlie v. Marsh, 46 Ind. 218. SEVEEAL ACTIONS ON CONTEACT. 275 arbitrary rule sustained b}' these and similar cases should be gen- erally approved as the correct interpretation of the codes. The New York Court of Appeals has determined that an action maj' be maintained by one firm against another firm to recover a sum ascertained to be due, although the two partnerships have a com- mon member who is made a defendant, with proper averments, in the complaint ; and the action need not be brought for the equi- table relief of an accounting, but for the legal relief of an ordinary money judgment.^ § 229. IV. Actions by persons having several rights arising from contract. As the principles have been already stated in the preliminary discussions of this section, it is only necessary to add some further illustrations furnished by the decided cases. The common-law doctrine in respect to several rights and actions does not seem to have been changed, unless, possibly, under the operation of the equitable rule embodied in the codes, plaintiffs having strictly several rights may be allowed to unite in legal actions, under circumstances which establish a certain community of interest among them, although under the same circumstances they would have had no such election at the common law. There is at least a tendency shown by some of the decisions towards such a modification of the rule which formerly prevailed in reference to seveial rights and causes of action. The follow- ing examples will serve to illustrate the nature of several rights, and the doctrine as to parties plaintiff in suits brought to enforce them. Tenants in common of a tract of land, who hold their titles by different conveyances from the same grantor, each of which contains covenants relating to the land and its use, cannot unite in an action brought against the grantor to recover damages for the breach of such covenants ; their interests under the covenants and their rights of action are in every sense several.^ The obligees in an injunction bond, where the interests interfered with by the injunction are separate, and the injury done to each is distinct, cannot join in a suit to recover damages for these several causes of action ; their recovery in such pro- ceeding must be limited to the damages that are strictly joint.^ 1 Cole V. Reynolds, 18 N. Y. 74. The should be a plaintiff, is permitted to be a fundamental principle involved in tliis de- defendant. I simply contend that this cision is the same as that advocated in the principle should be regarded as general, text. A party who, in pursuance of the ^ Samuels v. Blanchard, 25 Wis. 329. ancient rule as to joint causes of action, ' Fowler v. Frisbie, 37 Cal. 84 ; but, 276 CIVIL EEMEDIES. Certain persons executed the following written agreement : " We, the undersigned, agree to guarantee the depositors of W. E. C. [a banker] in the payment in full of their demands against said W. E. C. on account of money deposited with him." Each de- positor, it was held, must sue separately upon this guaranty to recover the amount of his individual claim ; all the depositors could not join in a single action, because their interests were entirely several, neither one having any interest in the demand of another.! A number of persons having each subscribed dif- ferent sums of money for a loan to a certain party in aid of a proposed enterprise, and a committee of three having been ap- pointed to act as agents for the subscribers, which committee entered into a written contract with him containing various stipulations concerning the use of the money, and also an under- taking on his part to repay tlie amounts advanced, each of the subscribers was held entitled to maintain a separate action against the borrower to recover the sum loaned by himself.^ Five per- sons entered into a written agreement stipulating that, if either or any of them should be drafted during the late war, the others would contribute equal sums to enable him or them to hire sub- stitutes. Three of the parties having been drafted and procured substitutes, one at a cost of $1,500, and the others for $1,100, each, it was held by the Supreme Court of Indiana that each must sue the others in a separate action for the stipulated indemnity, and a joint action by the three was dismissed.^ A per contra, see Loomis v. Brown, 16 Barb. 2 Ricg v. Savery, 22 Iowa, 470. The 325. It is held in Ohio thatthe interests court held that tlie committee might also of the obligees in an attachment bond are sue as trustees of an express trust, the several, although the undertaking is in promise having been made directly to terms joint. Where such a bond was them, and also that each creditor could given to three persons, an action on it by sue. two of them, who were partners,, and ^ Goodnight v. Goar, 30 Ind. 418. As whose firm property had been wrongfully the analysis of this contract, given in the seized under the attachment, was sus- opinion of the court, may be instructive tained. Alexander v. Jacoby, 23 Ohio, in explaining the nature of several rights, St. 358, 383. Tor further illustrations I quote from it at some length. After see Great Western, &o. Co. v. Mtna, Ins. stating that the code adopts the equity Co., 40 "Wis. 373 ; Hubbard v. Burrell, 41 doctrine as to parties, and applies it to all id. 365 ; Eldridge v. Putnam, 46 id. 205 ; actions, Frazer J. proceeds ; " The pres- Brett V. First Univ. Soc, 5 Hun, 149; ent inquiry is reduced to this: Could Small V. Robinson, 9 id. 418 ; Konger v. these plaintiffs have been joined in Creed, 58 Ind. 554; Durham v. Hall, 67 chancery ? In solving this question, we id. 123. may be aided by considering the nature I Steadman v. Guthrie, 4 Met. (Ky). of the contract upon which the action is 147, 151. brought. The obligations which it im- SEVERA.L ACTIONS ON CONTRACT. 277 number of persons being interested in opposing a certain claim and in defending suits thereon, appointed a committee to employ counsel and to conduct the defence, and agreed to pay the ex- penses incurred by such committee. The cost of the defence not having been contributed, the committee paid the same, and thereby became entitled to reimbursement. This right, it was held, was a several one in each member thereof, and a separate suit by each to recover the sum paid out by himself was proper rather than a joint action by all to recover the whole amount which had been disbursed.^ Under the general statutes of New York, providing for the formation of corporations for various purposes, and making the stockholders personally liable under certain circumstances to the creditors of the corporation for the debts thereof, this right of action in the creditors is a several one, and a separate action may therefore be maintained by each creditor. It is admitted, however, that a proper action may be brought against all the stockholders for the benefit of all the creditors.^ A bond having been given for the payment of a certain sum to the heirs of A., eight in number, upon the death poses are strictly several, each party for himself alone being bound in a certain event to pay. The obligation thus as- sumed is to each one of the plaintiffs separately by each defendant for one-fifth of such sum as that plaintiff was obliged to pay for a substitute for himself. This proportion due from one cannot be either increased or diminished by the fact that another plaintiff is also entitled to recover from the same defendant a like propor- tion of the sura paid by him for a substi- tute. Each plaintiff has an interest only in compelling the defendants severally to reimburse him, and cannot possibly be affected by the success or failure of any one of his co-plaintiffs in the suit. They have, therefore, no joint or common inter- est in the relief sought, which is the object of the suit. Nor have they any joint or common interest in the subject or founda- tion of the action, which is the failure of the defendants respectively to pay accord- ing to the contract. The failure to pay Goodnight does not concern any other plaintiff ; and so the failure to pay each of the plaintiffs is a matter of entire in- difference to the others. If each two of the five persons had mutually contracted, by a separate writing, to pay one-fifth of whatever sum might be necessary to pro- cure a substitute for either if drafted, there would have been twenty separate paper contracts instead of one as now. It was a matter of convenience merely that one writing, executed by all, should have been adopted to evidence their several undertakings ; but it imposed exactly the same liabilities as if twenty writings such as we have mentioned had been used. In the latter case it would have been too plain for doubt that each plaintiff must sue separately. Why should it be other- wise now ? There is certainly no good reason." 1 Finney v. Brant, 19 Mo. 42. 2 Weeks v. Love, 50 N. Y. 568. It was said tliat all the cases impliedly hold the doctrine above stated ; and the following were cited : Briggs v. Penniman, 8 Cow. 387 ; Mann v. Pentz, 3 N. Y. 415 ; Osgood V. Laytin, 5 Abb. Pr. u. 8. 1 ; Garrison v. Howe, 17 N. Y. 458. 278 CIVIL EEMEDIES. of their mother, it was held by the Supreme Court in New York that an action might be maintained by one heir against the obligor, or, he being dead, against his administrator, to recover one-eighth of the entire sum; that the right of the obligees was several and not joint.^ "^here three towns were each liable for a share of the cost of erecting a bridge, and the proper officers of each — the highway commissioners — procured the same to be erected, but the entire pxpense thereof was actually advanced and paid out by two of these commissioners, theif right of action against the third commissioner to recover the amount thus disjjursed for his use was declared to be sev- eral, and a joint action against him, it was held, pould not be maintained.^ § 230. V. Actions hy persons fi,aving a joint right arising from personal torts. The common-law rule governing the selection of parties plaintiff in such actions is entirely unchanged. Wherj the personal tort produces a common injury to all, and thus creates a common damage, all the persons affected by the wrong must join in an action to recover the damages. In pursuance of this principle, all the members of a partnership may and must unite in an action for a libel or slander on the firm, by which its business ii3 injured. Undoubtedly, the instances in which a com- mon, as distinguished from a several, injury can be done to a number of individuals by personal torts, must necessarily be rare ; but when they do occur, the rule as stated must be applied. A single illustration will suffice. False and fraudulent represeuT tations concerning the pecuniary responsibility of a certain per- son having been made to a partnership, by which it was induced to sell goods to him on credit, and the price of the goods not being paid or recoverable by reason of the purchaser's insolvency, it was decided by the New York Court of Appeals, that an action to recover daniages for the deceit should be brought by all the partners jointly.^ 1 Hees V. Nellis, 1 N. Y. Sup. Ct. ise of the defendant was, therefore, not 118. to the plaintiffs jointly. 2 Oorey v. Rice, 4 Lans. 141. There s Zabrisjiie v. Smith, 13 N. Y. 322. was no joint or common interest lield by The action was actually brought by three the towns which the plaintiflFs represented out of four partners ; but, no olgeetion in the sum which was thus advanced ; it being properly taken, the dpfpct was was not like an advance made by a part- waived. The court further held tliat, as nership, or made out of a fund owned by the right of action was joint, the share of the plaintiffs together. The implied prom- the partner not made plaintiff cqyjd not be ACTIONS AKISING FEOM PERSONAL TORTS. 279 § 231. VI. Actions by persons having several rig Jits arising from personal torts. The converse of the proposition stated in the preceding paragraph is also as true now as it was prior to the new system of procedure. Where a personal tort has been done to a number of individuals, but no joint injury has been suffered and no joint damages sustained in consequence thereof, the interest and right are necessarily several, and each of the injured parties must maintain a separate action for his own personal redress. It follows, therefore, that when a tort of a personal nature, an assault and battery, a false imprisonment, a libel, a slander, a malicious prosecution, and the like, is committed upon two or more, the right of action must, except in a very few special cases, be several. In order that a joint action may be possible, there must be some prior bond of legal union between the persons injured — such as a partnership relation — of such a nature that the tort interferes with it, and J«/ virtue of that very interference produces a wrong and consequent damage common to all. It is not every prior existing legal relation between the parties that will impress a joint character upon the injury and damage. Thus, if a husband and wife be libelled or slandered, or beaten, although there is a close legal relation between the parties, it is not one which can be affected by such a wrong, and no joint cause of action will arise. The doctrine above stated has been fully recognized and asserted by the courts since the codes were enacted. A fire company — a voluntary association — having been libelled, a joint action by its members to recover damages against the libeller was held improper ; not being part- ners, and not having any community of legal interest whereby they could suffer a common wrong, the right of action was several, and each must sue alone.^ The same rule has been applied in the case of two or more persons, not partners, suing jointly to recover damages for a malicious prosecution ; the action cannot be maintained.^ shown by the defendant, and allowed in ^ Rhoads v. Booth, 14 Iowa, 575. mitigation of damages; although, if the Three plaintiffs sued jointly for a mali- plaintiffs had been entitled as owners in cious prosecution. Wright J. said : " As common, sucli a mitigation of damages, and a rule, it is only when two or more per- deduction from the recovery, would have sons are entitled to, or have a joint inter- been proper and necessary. est in, the property affected, or to the 1 Giraudu.Beaeh, 3E. D. Smith, 337; damages to be recovered, that they can Hinkle v. Davenport, 38 Iowa, 355, 358 ; unite in an action. Therefore, several Stepank v. Kula, 36 id. 563. parties cannot sue jointly for injuries to 280 CIVIL REMEDIES. § 232. VII. Actions in special eases. Some special cases which do not fall within the foregoing classification will conclude this branch of the discussion. A policy of fire insurance, containing the clause, " loss, if any, payable to E. B. G., mortgagee," the assured, it was held, could not maintain an action without mak- ing E. B. G. a co-plaintiff, unless it was alleged and proved that the mortgage to him had been paid off so that his interest had ended.i In several of the States, by virtue of special provisions contained in their codes, partnerships may sue and be sued by the use of the firm name as the parties plaintiff or defendant, in the same manner as though they were corporations. The judgments recovered in such actions against the partnership can only be enforced, in the first instance, against the firm property, and can only be extended so as to bind the individual property of the several partners by a subsequent direct proceeding against them, or some of them, in the nature of a scire facias!^ The Kentucky code contains a peculiar provision in reference to actions brought by an assignee of a thing in action where the assignment is equitable merely — that is, where it is not expressly authorized by statute ; in such a case the assignor must be joined as a party either plaintiff or defendant, at the option of the assignee who brings the suit.^ The code of the same State expressly authorizes the owner of land to maintain appropriate actions to recover damages for any trespasses or other injuries committed thereon, although he may not be in the actual possession, or have the person, as for slander, or battery, or held that the objection might be taken false imprisonment. For words spoken of at the trial. parties in their joint trade, or for slander i Euuis v. Harmony Fire Ins. Co., 3 of title, they may sue jointly ; but not so Bosw. 516. And see Hammell v. Queens when two or more sue for slanderous Ins. Co., 50 Wis. 240. words which, though spoken of all, apply 2 See supra, § 121. Eyer.son w. Hen- to them all separately; or in a case of drie, 22 Iowa, 480. See Wills v. Sim- false imprisonment or a malicious prose- monds, 8 Hun, 189, 200 (legal action by cution, wlien each, as individuals, are one of several partners against another imprisoned or prosecuted. The prin- one without joining the remaining eo- ciple underlying is, that it is not the partners). act, but the consequences, which are » Dean v. English, 18 B. Mon. 135. looked at. Thus, if two persons are This provision is somewhat different from Injured by the same stroke, the act is that found in the code of Indiana, which one, but it is the consequences, of that requires the assignor, in all cases where act, and not the act itself, which is re- the thing in action is not assigned by dressed, and therefore the injury is sev- indorsement, — that is, where it is not a eral. There cannot be a joint action, negotiable instrument, — to be joined as a because one does not share in the suffer- defendant, in order to answer to the as- ing of the other." The court further signment. Indiana Code, § 6. ACTIONS IN SPECIAL CASES. 281 the right to the immediate possession, at the time when the tres- pass or other injury complained of was committed.^ This is undoubtedly the true interpretation of the codes of all the States without any express provision to that effect. The common-law distinction between " trespass " and " case " being abolished, the owner is entitled to maintain an action and recover damages, by alleging the actual facts which constitute the cause of action, although under the former procedure he would, under certain circumstances, sue in " trespass " and under other circumstances in " case." The nature of the right of action has not been changed, nor has the amount of damages recoverable been affected, but the special and technical rules which governed the use of the two common-law actions mentioned, have certainly been abrogated.^ A legatee or distributee of an estate in the hands of an executor or administrator may, under certain circum- stances, maintain an action to recover a debt or demand due to the deceased, if for any reason the personal representative is legally disabled from suing. Thus, for example, where B. in his lifetime was indebted to A., both die, and the same person is made administrator or executor of each estate, a legatee or dis- tributee of A.'s estate may bring an action in his own name against the one who is thus the administrator of B.'s estate, as well as executor or administrator of A.'s estate. This person, as the representative of one estate, cannot sue himself as represen- tative of the other, and therefore the beneficiaries of the creditor estate are permitted to prosecute the action. It seems, also, that such action can be brought either by one of the legatees or dis- tributees, or by all of them jointly.^ 1 Bebee u. Hutchinson, 17 B. Mon. 496. mon-law "case," — that is, damages for And see Alexander v. Hurd, 64 N. Y. 228. the injury to the inheritance. To non- 2 Brown v. Bridges, 31 Iowa, 138, 145. suit the plaintiff, is to restore the old dis- A plaintiff suing, as owner of land, for tinotions between tjiese technical actions, injuries done by a wrong-doer, cannot, This doctrine is expressly sustained by consistently with the plain import of the the Supreme Court of Missouri, — Fitch i». codes, be nonsuited, because lie was out of Gosser, 54 Mo. 267 ; and by a very recent possession, and not entitled to possession, decision in New York, — Adams v. Farr, 5 Undoubtedly, he may not be able to re- N. Y. Sup. Ct. 59, citing Robinson v. cover such damages as he would have re- Wheeler, 25 N. Y. 252. S. P. Foster v. covered if the action was the common-law Elliot, 33 Iowa, 216, 224. But see Town- " trespass," — that is, damages for the send v. Bissell, 5 N. Y. Sup. Ct. 683, per wrong done to his possession as well as to Gilbert J., a contrary dictum, which, in tlie inheritance ; but he is certainly en- the face of these authorities, and of the titled to recover such damages as he would code itself, is clearly a mistake. have obtained if the action was the com- ' Fisher o. Hubbell, 66 Barb. 74 ; s. 0. 282 CIVIL REMEDIES. It is held in New York that a mother may maintain an action for the seduction of her infant daughter where the father is dead, and the daughter is dependent upon the mother, although the latter has remarried. ^ This rule has also been extended to the case when the father is not dead, but has abandoned his wife, who lives separate and apart from him, and maintaiias herself and family by carrying on a business in which the daughter is actually employed as an assistant, rendering substantial services. The action being founded upon the relation of master and servant, and not upon that of parent and child, and the mother carrying on a business in which the daughter is employed as a servant, all the requisites of the general doctrine relating to the action of seduction are fully complied with.^ These decisions are based upon common-law principles independently of any changes made by statute. The codes of several States, however, contain special provisions authorizing actions to be brought by fathers, or, in case of their death or desertion of their families, by mothers, and by guardians, to recover damages for the seduction of, or for the death of, or injuries to, their children or wards.^ A woman is 1 N. Y. Sup. Ct. 97. It was also held that Hubbell — the common trustee — should be made a defendant, both as adminis- trator of A.'s estate, and as executor of B.'s estate ; of the latter, because he thus represented the debtor; and of the for- mer, because he was the regular plaintiff, and should be made a party in order to conclude the estate by the judgment. It was said that, in order to bind the estate of a deceased person, his administrator or executor must be made a party in his representative capacity ; it is not sufficient that he be made a party. See Haynes V. Harris, 33 Iowa, 516. In Missouri, the distributees of an estate in the hands of an administrator may, before an order for distribution is made, all unite in a joint action on the administrator's bond against him and his sureties. Whether such joint action would be proper after the order for a distribution, quaere. Kelley v. Thornton, 56 Mo. 825. In Kentucky it has been ex- pressly decided that several distributees cannot unite In a legal action against the administrator to recover the shares found due to each upon a settlement of the esr tate. Felly v. Bowyer, 7 Bush, 613. For various actions by administrators, exec- utors, legatees, and heirs, see Smith v. Van Ostrand, 64 N. Y. 278 ; Lysou v. Blake, 22 Id. 558 ; Dunning v. Ocean Nat. Bank, 61 Id. 497 ; Cushman v. Wood, 6 Hun, 520 ; Pendleton v. Dalton, 77 N. C. 67 ; Filbey v. Carver, 44 Wis. 469 ; CatUn V. Wheeler, 49 Id. 507 ; Harris v. Harris, 61 Ind. 117 ; Taylor v. Fickas, 64 Id. 167 ; Leidy?;. Nash, 67 Id. 311; McDowell v. Hendrix, 67 Id. 518. As to eo-plaintiSs in action for contribution, see Haghes v. Boone, 81 N. C. 204. 1 Lampman v. Hammond, 3 N. Y. Sup. Ct. 293 ; Gray v. Durland, 50 Barb. 100, 51 N. Y. 424 ; Furman u. Van Sise, 56 N. Y. 435 i Badgley v. Decker, 44 Barb. 577. 2 Badgley u. Decker, 44 Barb. 577. See Certwell v. Hoyt, 6 Hun, 675 (by a grandfather) ; actions to recover earnings of an infant child, see HoUingsworth i;. Swedenborg, 49 Ind. 378 ; Monaghan v. School District, 38 Wis. 100. s See supra, § 120, where the States are enumerated. A statute which dis- penses " with any allegation or proof of loss of service " does not change the rules ACTIONS BY HUSBAND AND WIFE. 283 permitted, in a few States, to maintain an action and recover damages for her own seduction.^ § 234. Seco7id: Actions hy and between Husband and Wife. The common-law rules as to the power of a wife to bring actions in her own name, and as to the necessity of making husband and wife co-plaintiffs in all actions where she could be a party at all, relating to her property or to wrongs suffered by her, have been either utterly swept away or greatly modified in all the States which have adopted the reformed system of procedure. These common-law requisites were concisely stated in a former para- graph of this section.2 In equity, while as a general rule the husband was joined as a co-plaintiff even in suits touching her equitable separate estate, yet, when their interests were at all antagonistic, and ^specially when the proceeding was in any manner adverse to him, she was permitted to sue without uniting him with her, and even to make him a defendant. Her action, however, was prosecuted in her name by a next friend.^ § 235. The statutory legislation upon this subject entirely abandons the common-law theory, and, so far as it resembles any previous doctrine, rather adopts that of the equity tribunals, although in most instances it is far in advance of the greatest liberality ever allowed by the courts of chancery. In New York there is now no instance in which a husband and wife must, or even may, be joined as co-plaintiffs, by virtue merely of the mar- riage relation, in actions affecting either his or her individual rights. If, however, the husband and wife are both in any man- ner interested in the subject-matter of the controversy, they may be united as plaintiffs ; but this would result from the existence and nature of the common interest, and not from the naarital relation. Special statutes, in reference to married women and their property, provide that a wife must sue alone, and without a guardian or next friend, in all actions relating to her separate property, which includes all the estate, real and personal, which she owns at the time of the marriage, and all that she may ac- quire subsequently thereto, and all of Uer personal earnings, and the proceeds of her business ; in all actions upon contracts made of the law as to the parties ; the seduced ^ See supra, § 191. woman cannot bring the action. Wood- s story, Eq. PI. §§ 61, 63 ; 1 Daniell's ward V. Anderson, 9 Bush, 624. Chan. PI. {4th Am. ed.) pp. 109, 110. 1 See supra, § 120. And see Thpmp- son V. Young, 51 Ind. 599. 284 CIVIL REMEDIES. by and with her in reference to her property, or in the course of any business which she may carry on ; and in all actions brought to recover damages for any injuries to her person or character ; and in all actions against her husband.^ It thus appears that in no case is it proper for a husband to be united as co-plaintiff with his wife, in New Yoik, merely because they are husband and wife. § 236. There are two general types or forms of the statutory provision, as contained in most of the codes, while in a few of the States the legislation is special, as it is in New York. The first of these forms is the following: " When a married woman is a party, her husband must be joined with her, except that, (1) When the action concerns her separate property, she may sue alone ; (2) When the action is between herself and her husband, she may sue and be sued alone ; but in no case shall she be re- quired to sue or defend by guardian or next friend [except she be under the age of twenty-one years — Indiana^ " ^ The other form differs from this in requiring the interposition of a next friend. " When a married woman is a partj'^, her husband must be joined with her ; except when the action concerns her separate property, she may sue alone, without her husband, by a next friend. When the action is between herself and her husband, she may sue or be sued alone ; but in every such action, other than for a divorce or alimony, she shall prosecute and defend by her next friend." " In Iowa, the change is more radical, and reaches the same result as the New York statutes. " A married woman may, in all cases, sue and be sued, without joining her husband with her, to the same extent as if she were unmarried ; and an attachment or judgment in such action shall be enforced 1 Laws of N. Y., 1860, eh. 90, § 7 ; fled, but Is substantially the same. In Laws of 1862, ch. 174, §§ 3, 5, 7. The the first subdivision the following is in- 114th section (§ 450) of the New York serted after the words " separate prop- code remains unrepealed, although these erty," viz., "or her right or claim to the later statutes have entirely abrogated or homestead property." A third subdivi- modified most of its provisions. sion is added, as follows : " (3) V^hen she 2 This form is found in Indiana code, is living separate and apart from her hus- § 8 ; Minnesota code, § 29 ; California band, she may sue or be sued alone." The code, § 370; Wisconsin code, ch. 122, last clause, relating to a guardian or next § 15; South Carohna, § 137; Oregon, friend, is omitted ; otherwise the provision § 30 ; Nevada, § 7 ; Dacota, § 67 ; Flori- is identical with that given in tlie text, da, § 65 ; North Carolina, § 56 ; Idaho, 8 Ohio code, § 28 ; Nebraska code, § 7; Wyoming, § 35; Montana, § 7. The § 33. provision in California is slightly modi- ACTIONS BY HUSBAND AND WIFE. 285 by or against her as if she were a single woman." ^ Also, " Should either the husband or wife obtain possession or control of property belonging to the other, either before or after marriage, the owner of the property may maintain an action therefor, or for any right growing out of the same, in the same manner and extent as if they were unmarried."^ And, "A wife may reco^ver the wages of her personal labor, and maintain an action therefor in her own name, and hold tlie same in her own right; and she may prosecute and defend all actions at law and in equity for the preservation and protection of her rights and property as if unmarried." ^ In Kansas, " A woman maj"-, while married, sue and be sued in the same manner as if she were unmarried." * The Missouri statute provides that " When a married woman is a party, her husband must be joined with her in all actions, except those in which the husband is plaintiff only, and the wife defend- ant only, or the wife plaintiff only, and the husband defendant ; and in all such actions, when the husband is plaintiff and the wife defendant, or the wife plaintiff and the husband defendant, it shall be lawful for the wife to sue or defend, b}' her agent or attorney, as she may think proper ; and in all actions by husband and wife, or against husband and wife, they may prosecute the same by attorney, or they, or either of them, may defend by attorney ; and it shall not be necessary for the wife, in any such action, to sue with her husband by next friend, or to appear and defend by next friend." ^ Certain other special provisions may be properly stated in this connection. " When a husband has deserted his family, the wife may prosecute or defend, in his name, any action which he might have prosecuted or defended, and with the same effect." ® In addition to the general clause already quoted, the Indiana code contains the following : " Hus- band and wife may join in all causes of action arising from injuries to the person or character of either, and both of them, or from injuries to the property of either, and both of them, 1 Iowa code, 1873, § 2562. conveyed by deed to the defendant, who 2 Iowa code, § 2204. promised to pay the purchase-price to the 3 Ibid. § 2211. husband. In an action brought by the * Gen. Stat. 1868, oh. 62, § 3 ; code, husbanjJ to enforce the vendor's Hen for § 26. the price, the wife was lield not to be a * Missouri civil code ; " Wagner's necessary party. Reugger v. Lindenber- Stat." art. 1, § 8 ; Laws of 1868, p. 87. ger, 53 Mo. 364. Land belonged in fee to a wife, but the ^ Minnesota code, § 34 ; Iowa, § 2664 ; husband had a life-estate therein ; it was Indiana, § 26. 2B6 CIVIL REMEDIES. or arising out of any contract in favor of either, and both of them." 1 § 237. B}^ summing up and comparing these various statutory requirements, we find the general rule to be, that, in all actions where the wife is a party, — and, of course, where she is a plain- tiff, — the husband must be joined with her, thus retaining the rule which prevailed before the new system. If, however, the action concerns her separate property, or if it is directly between herself and her husband, she may sue alone, — that is, without uniting her husband with her. In respect to these classes of actions there is, however, a difference in the practice. In cer- tain States it is expressly required, that, when she sues without joining her husband, it must be by a next friend, while in others she need not resort to any such assistance in prosecuting her actions. It does not fall within the scope of this treatise to de- termine the nature of a married woman's "separate property," as spoken of in these various statutory provisions relating to parties.^ In some States the wife is clothed with most of the capacities and powers which belong to a single woman, and in others, the departure from the common-law doctrine is by no means so com- plete. Wherever the general statutory rule just stated prevails, the husband and wife must be united in all actions where such joinder was formerlj'' required, other than the two classes ex- pressly excepted, — that is, actions concerning her separate prop- erty, and those directly between herself and her husband. Every suit, therefore, brought to recover damages for the personal injury, bodily or mental, sustained by the wife from any 'tort to her person or character, must, in those States, be prosecuted by the husband and wife jointly. The conclusions thus reached are true only in the States whose codes contain one or the other of the two general forms of the statutory provision quoted in a fore- going paragraph. As these forms are found in many of the States, they furnish the general doctrine of the new procedure in refer- 1 Indiana code, § 794. I confess myself ^ in Minnesota, while the statute de- unable to guess even at the meaning of fining the wife's separate property was this provision. Does it enact that they operative, land devised to a married may unite when the injury is to some woman became her separate property, joint right, as to property oWned by them so that in actions concerning it slie could both, etc. ? If so, why insert the word sue alone. Spencer v. Sheehan, 19 Minn. either ? It certainly cannot be possible 338, 346. that when an injnry is done to the hus- band the wife may join. ACTIONS BY HUSBAND AND WIFE. 287 ence to the union of husband and wife in actions relating to her interests. In New York, Iowa, Kansas, and other States which have entirely abandoned the common-law notions upon this sub- ject, the husband is not to be made a party plaintiff in any action brought by the wife, whether it concerns her separate property, or whether it is based upon a tort done to her person or character, or upon a contract entered into by her. On the other hand, the somewhat blind and cumbrous phraseology of the Missouri code, when properly interpreted, limits the cases in which the wife may sue and be sued alone, to actions brought by the wife directly against the husband, or by the husband directly against the wife, and in which there are no other parties ; in actions concerning her separate property, both must appear as plaintiffs on the record.^ § 238. Wherever the general rule as above described prevails, wherever it is provided that the wife may sue alone in actions concerning her separate property and in certain others, as desig- nated, it is generally, if not universally, held that the language of the statute — "may sue" — is permissive and not compulsory; she has her option to sue in her own name alone, or to unite her husband as a co-plaintiff ; either mode of bringing the action is legal and proper.^ The rule in Missouri seems to have vacil- lated ; for it has been held that the husband need not be made a party when the action concerns the wife's separate property, but she must sue in such case by a next friend.^ When a note and mortgage were given to a husband and a wife jointly as security for the payment of money of the wife loaned to the maker of the note, on the death of the husband the wife may sue alone 1 See supra, § 236. lands of the wife ; Kays v. Phelan, 19 Cal. 2 Kennedy v. Williams, 11 Minn. 314, 128, action by wife alone for price of land action by husband and wife on a note be- sold by her ; Van Maren v. Johnson, 16 longing to the wife ; Nininger v. Board of Cal. 308, action by both for money due Commissioners, 10 Minn. 133, aition by wife before marriage ; Nerval v. Rice, 2 wife alone on a bond belonging to her- Wis. 22 ; Botkin v. Earl, 6 Wis. 393. self ; Wolf V. Banning, 3 Minn. 202 ; Gee » Claflin v. Van Wagoner, 32 Mo. 252. V. Lewis, 20 Ind. 149, action by both for The rule thus laid down corresponds with money due the wife ; Adams v. Sater, 19 that established by the second general Ind. 418, action by the wife alone ; Mar- form of the provision found in many tindale w. Tibbetts, 16 Ind. 200 ; Hollings- codes. It is clearly inconsistent with the worth V. State, 8 Ind. 257; Corcoran v. provision quoted in § 236 from the Mis- Doll, 32 Cal. 82, action by both on a note souri statute as it now stands. There has given to the wife ; Calderwood v. Pyser, probably been a modification in the legis- 31 Cal. 333, action by both to recover lation of that State. 288 CIVIL BEMEDIES. to enforce the security, both on the ground that the action con- cerns her separate property, and because she is the surviving payee and mortgagee.^ In Indiana the wife is never required to sue by a next friend.^ In Iowa, prior to the latest modification of the statute as already stated, which obviates the necessity of joining the husband in any action, the wife could sue alone in reference to her separate property.^ The husband is an indis- pensable party in all cases where the wife is a party, " except that where the action concerns her separate property she may sue alone," but she is not required to do so. "The separate estate of a married woman in Kentucky is that alone of which she has the exclusive control, independent of her husband, and the proceeds of which she may dispose of as she pleases. All her real estate does not belong to her as her separate property. That character must be imparted to the property by the instrument which invests her with the right to it."* It has been held in Kansas that a wife can only maintain an action in her own name on a note or other obligation, upon the ground that the demand is her sepa- rate property.^ When a married woman in California engages in business in her own name as a " sole trader," under the statute authorizing such business,^ she is vested " with the exclusive ownership and control of all the money and property invested in the trade or business in which she, is engaged ; and as to such business and property she is entirely independent of her hus- band," and may, and perhaps must, bring all actions concerning the same without joining her husband as a co-plaintiff." A mar- ried woman may sue alone in the same State to recover the rent of her premises which have been leased.^ § 239. The following are instances in "which it has been held, 1 Shoekley v. Shockley, 20 Ind. 108. ther illustrations of suits involving the 2 Harlan v. Edwards, 13 Ind. 430. wife's interests in States where this type 8 Kramer v. Conger, 16 Iowa, 434. of statute prevails, see Carpenter ». Tatro, 4 Beaumont v. Miller, Stanton's Ky. 36 Wis. 297 ; Beard «. Dudolph, 29 Id. Code, p. 42, per Stiles J. ; Petty v. Malier, 137 ; Stimpson i-. "White, 20 Id. 562 ; Put- 14 B. Mon. 246, per Simpson J. nam u. Bicknell, 18 Id. 834; Duress t. 6 Hadley v. Brown, 2 Kan. 416. The Horneffier, 15 Id. 196 ; Horneffer v. Du- statutory provision quoted above, in § 236, ress, 13 Id. 604 ; Stanton v. Kirsch, 6 Id. is certainly broader than the doctrine of 338 ; Board of Comm'rs v. Slatter, 52 Ind. this case. 171 ; Yopst u. Yopst, 51 Ind. 61 ; Hol- 6 Act of April 12, 1852. lingsworth v. Swedenborg, 49 Ind. 878; 7 Guttman v. Scannell, 7 Cal. 455, 458. Campbell v. Galbreath, 12 Bush, 459 ; See Swain v. Duane, 48 Cal. 358. Mertera v. Lowenberg, 69 Mo. 208. 8 Snyder v. "Webb, 3 Cal. 83. For fur- ACTIONS BY HUSBAND AND WIFE. 289 under the special provisions of the New York statutes, that the wife must sue alone, although the joinder of the husband does not, as decided by the Court of Appeals, defeat the action entirely. The doctrine which lies at the foundation of these decisions is also embodied in the statutes of the few other States which have followed the example of New York by utterly abrogating the common-law rules concerning suits by husband and wife. The cases themselves are therefore authoritative prece- dents in interpreting the corresponding statutory provisions of those States. The wife should sue alone on an award made in her favor ; ^ to recover damages for the taking or the conversion of her personal property ; ^ in an action on a lease executed in her name ; ^ to recover possession of her lands ; * to recover damages for trespasses upon her lands ; ^ to recover damages for an assault and battery upon herself ; ^ to recover damages for the seduction of her own female servant, when she carries on a busi- ness in which the servant is employed ; ^ to recover damages for false and fraudulent representations by which she was induced to convey her lands ; ^ in an action against a common carrier to recover the value of articles lost or destroyed, although gifts from her husband ; ^ to recover the price agreed to be paid for personal services rendered to the defendant.^" 1 Palmer v. Davis, 28 N. Y. 242. action brought by her to recover the 2 Ackley v. Tarbox, 31 N. Y. 564. compensation agreed to be paid for such ' Draper v. Stouvenel, 35 N. Y. 507. work and labor, the Supreme Court held < Darby v. Callagban, 16 N. Y. 71 ; that she could not recover ; tliat lier ser- Hillman v. Hillman, 14 How. Pr. 456. vices belonged to her husband. 'J'iie * Fox V. Duff, 1 Daly, 196. statute which expressly authorizes her to s Mann v. Marsh, 35 Barb. 68. And maintain an action for her services was also in Iowa for torts to her. Mewhirter limited to the case in which such services V. Hatten, 42 Iowa, 288. are performed in some business carried on 7 Badgley v. Decker, 44 Barb. 577. In by her. This decision is a virtual repeal this case, the wife, living separate from of the statute, and is directly 6pposed to her husband, kept a boarding-house, and Brooks v. Schwerin, 54 N. Y. 343, which her daughter aided her by personal ser- holds that the wife's earnings from ser- vices, vices rendered in the household belong to 8 Newberry n. Garland, 31 Barb. 121. the husband, while those arising from ser- " Rawson v. Pennsylvania Eailroad, 2 vices rendered elsewhere belong to lier. Abb. Pr. N. s. 220. But see Sloan v. New York Central Kail- 10 Adams v. Honness, 62 Barb. 326 ; road, 4 N. Y. Sup. Ct. 135. For further but see, per contra, Beau v. Kiah, 6 N. Y. illustrations in suits on contracts, or con- Sup. Ct. 464. A married woman, living cerning her own property, see Bilter v. with her husband and family, was em- Rathman, 61 N. Y. 512; Curtis v. Del. ployed by the defendant, and, under Lack. & West. R. R., 74 id. 116 ; Stewart such employment, rendered services in v. Patrick, 68 id. 450 ; Fitch v. Rathbun, defendant's family as a nurse. In an 61 id. 579. 19 290 CIVIL KEMEDIES. § 240. As the result of the New York statutes modifying the legal relations between the husband and wife, either may, under certain circumstances, maintain actions of a legal nature ; that is, upon a legal cause of action, and seeking to obtain legal relief, against the other. It would seem, however, that such actions must be based upon rights of property or of contract. When the husband, prior to the marriage and in consideration thereof, gave his intended wife a promissory note, it is a valid demand in her hands, and she may, subsequent to the marriage, maintain an action against him upon it.^ The wife may bring an action in her own name against her husband to recover the possession of land which is her separate property.^ She may also sue him to recover her personal property ; or for money loaned to him ; or to recover the value of services rendered in his business under an express contract, or under such circumstances that a promise to pay therefor would be implied.^ When the husband and wife are owners in common of land, she may maintain a suit against him for a par- tition.* The foregoing cases all involve and are based upon rights of action growing out of her ownership of property, or out of con- tract in reference to such property, or to her services. No rights of action arise from personal torts committed by the husband, and she is not permitted to maintain actions against him to recover damages for such torts, as an assault and battery,^ or a slander.^ A hus- band cannot recover in an action against his wife for his services rendered to her in the oversight and management of her separate property, there having been no express agreement for the payment of a compensation, and the circumstances being such that no promise could be implied.'^ 1 Wright V. Wright, 54 N. Y. 437, 59 ^ Moore v. Moore, 47 N. T. 467. The Barb. 505. husband and wife may sue jointly for the 2 Minier v. Minier, 4 Lans. 421. The conversion of chattels which they own court draw a distinction between a suit jointly. Chambovet v. Cagney, 35 N. Y. like this, affecting her separate property, Superior Ct. 474. and one brought to recover damages for a 6 Longendyke v. Longendyke, 44 Barb. tort, such as slander, or assault and bat- 866. tery. See, however, per contra, Gould v. « Freetley v. Freetley. 42 Barb. 641. Gould, 29 How. Pr. 441. This decision is 7 Perkins v. Perkins, 62 Barb. 531. No in plain opposition to the spirit and letter express contract was pretended ; and the of the remedial statutes. plaintiff relied upon an implied promise. 8 Adams v. Curtis, 4 Lans. 164. The All that the court decided was, as stated action was against a firm of which the in the text, that no promise could be husband was a member. She may be implied, and therefore no cause of ac- ;hia creditor. Re Alexander, 37 Iowa, tion was made out. P. Potter J. went, 454. however, much further, and denied that ACTIONS BY HUSBAND AND WIFE. 291 § 241. In those States whose codes conform to the general type stated and described in a preceding paragraph, the rules as to parties plaintiff in actions for torts to the wife's person or character remain unaltered. At the common law the husband and wife were required to join as plaintiffs in all actions for dam- ages from the wife's personal suffering, either bodily or mental, while he sued alone in all actions for damages suffered by himself exclusively, from the loss of her society, and from expenses and the like occasioned by her injuries. Except in New York, Iowa, and the few other States which have made the wife in all respects like the single woman in regard to the capacity of instituting and prosecuting judicial controversies, these ancient doctrines of the common law have been preserved. The wife should certainly not be joined as a plaintiff with her husband in any action for tort to Ms property, or for fraud in relation thereto, unless she has some interest in or ownership of the subject-matter which has also been affected by the wrong. Thus, where a husband is induced by the false and fraudulent representations of the grantor to purchase land, and the title is taken in his wife's name, but the consideration is wholly paid by him, she having in fact no prior legal interest in the land or in the price, an action for the deceit cannot properly be brought in their joint names ; he is the only person interested, and should be the sole plaintiff.^ either husband or wife could ever main- " The complaint does not aver that the tain an action against the other upon a wife liad any special or several interest in contract, express or implied. These the purchase-money paid for this lot, nor conclusions of the learned judge are in the business which the defendant is directly opposed to the cases cited above, charged with having injured by the im- and to the express language of the stat- puted fraud. At most, the money and the ute. land bought, if tlie title passed, would 1 Bartges v. O'Neil, 13 Ohio St. 72 ; seem to be only common property, being Barrett v. Tewksbury, 18 Cal. 334. In the possessed or acquired during coverture, first-named case, the action, being in the For an injury to this, effected by deceit names of the husband and wife jointly, or otherwise, the husband would be enti- was entirely defeated ; the misjoinder was tied to recover ; there is no necessity or made fatal to the recovery by the hus- reason for joining the wife. For any fraud band. The second case presented similar or deceit practised by the defendant, facts. The action was by husband and whether the injury was wrought through wife to recover damages for deceit prac- the form of a contract or not, such injury tised in the same manner. The land pur- affecting the common property, the rera- chased would have been " common prop- edy is by the husband alone, who is the erty" under the laws of California,— representative of the common property, that is, property acquired during the mar- and has the management and control of riage, but over which the husband has the it." See Stepank v. Kula, 36 Iowa, 563. entire control. Baldwin J. said (p. 336) : 292 CIVIL KEMEDIES. The same has been decided in respect to an action for fraud prac- tised upon a husband and wife, by which a conveyance of land was obtained from them. The land thus conveyed was alleged to have been their homestead, but in fact the wife had no legal interest in it, the title having been exclusively in the husband. A joint action to recover damages for the deceit under these cir- cumstances was held to be improper.^ If, however, the wife has a legal interest or ownership in the subject-matter which has been injured or lost by the wrongful act or fraud of the defendant, a joint action in the names of both husband and wife to recover damages is proper. This doctrine has very recently been approved by the JSTew York Court of Appeals, and applied to the following state of facts. The owner in fee of land in which his wife had no interest except her inchoate right of dower, was induced by false and fraudulent representations to sell and con- vey the premises to the defendant by a deed in which the wife joined, and to receive in consideration thereof certain mortgages which were in fact worthless. A joint action by the husband and wife to recover damages for the deceit was sustained, the husband, it was said, being entitled to sue on account of his ownership of the fee, and the wife, on account of her inchoate dower right.^ 1 Eead v. Sang, 21 Wis. 678 ; but see plaintiffs, and were an injury to both Simar v. Canaday, 53 N. Y. 298. plaintiffs, inflicted at the same time ; 2 Simar v. Canaday, 53 N. Y. 298, 305, hence there is such a common interest in per Folger J. " Having thus shown that the subject of the suit as to authorize both Simar and his wife had a cause of ac- them to join in one suit, although the In- tion, the objection of the defendant, in its jury whicli each sustained is separate and exact letter, returns. The objection was distinct. In equity this rule has often been that noyomi cause of action in favor of the announced. And the code having abol- plaintifis had been made out. The cause ished all distinction between actions at of action we have found in the husband law and suits inequity, and provided for is, that he is defrauded of tlie fee of the but ope form of action, then enacts, that premises ; that in the wife is, that she is all persons having an interest in the sub- defrauded of her inchoate right of dower, ject of the action, and in obtaining there- which is contingent upon his title in fee. lief demanded, may be joined as plaintiffs. They are not strictly the same thing, yet Here both plaintiffs have an interest In the they are bound together in the same prop- subject of the action, and both have an in- erty ; they are taken out of the owners terest in the relief demanded." This is by the same instrument, and that instru- certainly an extraordinary decision, and ment is induced and the two rights are introduces a rule before, I think, un- lost by the same fraudulent acts. One thought of, — namely, that whenever the recovery will satisfy both claims, and one owner in fee is induced by fraud to convey judgment will be a bar to another action his land, and the wife joins in the deed, by either of the plaintiffs. The acts of the the two may maintain a joint action and defendant were done at one time to both recover a single judgment in solido for ACTIONS BY HUSBAND AND WIFE. 293 § 242. When a wife has suffered bodily injury, either by vio- lence or by negligent or unskilful acts of the wrong-doer, and the injury is of such a nature as to disable her for a while and make medical or other attendance necessary, a joint action is not the proper one in which to recover the husband's damages for his loss of her society and for the expenses caused by the wrong done to her ; such damages can only be recovered in an ac- tion brought by the husband as the sole plaintiff.^ If, on the other hand, the compensation sought is for the personal wrong done to her, both must unite as plaintiffs in all those States which follow the general form ; as, for example, in suing for a slander or libel upon the wife, the husband and wife must sue jointly, unless he has suffered some special damage, and the object of the proceeding is to obtain compensation therefor.^ The same rule applies to all torts to the person of the wife ; for the injuries to her, both husband and wife must join ; for the injuries special to him, such as loss of her society, expenses incurred, and the like, he must sue alone.^ It has even been held in a State where the cause of action for a personal tort sur- their joint damages. Granting that she has a right of action for the loss of her in- choate dower, and even that she and her husband could be made co-plaintiffs in one suit, it is plain that they have no common or joint right to damages, and that the damages to which they are respectively entitled must always be unequal. Tlie husband's measure of damage is the value of the whole land, and of his estate in fee therein ; the wife's measure of damage, at most, is the value of her inchoate dower right. Assuming that this inchoate dower is susceptible of measurement, so that the value thereof can be ascertained, it must necessarily be far less in amount than the value of the fee. Yet this decision gives to the wife, in virtue of her inchoate dower, a joint and equal right with her Imsband in the entire value of the prem- ises whicli had belonged to him alone. The decision cannot be supported either on principle or on authority ; the essential difference between the husband's fixed certain interest, capable of being ascer- tained, and the wife's uncertain, contin- gent interest, under all possible circum- stances, much less than her Imsband's, seems to have utterly escaped the atten- tion of the court 1 Kavanaugh v. Janesville, 24 Wis. 618, action for injuries to wife from a de- fective sidewalk ; Barnes v. Martin, 16 Wis. 240, assault and battery on wife ; Smith u. St. Joseph, 55 Mo. 456, 458 ; Bailey v. Houston, 58 Mo, 361, 366. 2 Johnson v. Dicken, 25 Mo. 580 ; Enders v. Beck, 18 Iowa, 86. This lat- ter decision was made under a statute different from that which is now in force in Iowa. 2 Long V. Morrison, 14 Ind. 595, 697 ; McKinney v. Western Stage Co., 4 Iowa, 420. See remark in last preceding note. Dailey v. Houston, 58 Mo. 361, 366 ; Smith V. St. Joseph, 56 Mo. 456, 458 ; Rogers v. Smith, 17 Ind. 323 ; Ohio & M. E. R. v. Tindall, 13 Ind. 366; Boyd ... Blaisdell, 15 Ind. 73. See also Hammond v. Town of Muskwa, 40 Wis. 354 ; Beaudette v. Fond du Lac, 40 id. 44 ; Hunt v. Town of Winfield, 36 id. 154; Oliver v. Town of La Valle, 36 id. 592 ; Gibson v. Gibson, 43 id. 23 ; Meese v. Fond du Lac, 48 id. 323 ; Barnett v. Leonard, 66 Ind. 422. 294 CIVIL EEMEDIES. vives, that, when a claim for damages against a physician for malpractice existed in favor of a wife, and she died, her husband must be joined as a eo-plaintiff with her administrator in prose- cuting an action to enforce such demand.^ If the gravamen of the action is a tort to the wife's person, the general rule above stated applies, and the husband must be joined, although the action might be brought in form ex contractu. As an example, if the wife has been injured by the negligence or other wrongful act of a carrier, who was transporting her as a passenger, although the action might be in form based upon the contract of passage made with her, the injury being proved in enhancement of dam- ages, or might be in form directly based upon the tort, yet in. either case the very gist of the claim would be the negligent or tortious act of the defendant, and the husband and wife must therefore unite as coplaintiffs in order to recover the damages resulting from her personal injuries.^ § 243. The doctrine stated and . illustrated in the preceding paragraph obtains alone in those States whose codes conform to the general type. In the few others whose statutes have com- pletely abrogated the ancient principles respecting the marriage relation, the wife must sue alone in her own name in actions based upon torts to her own person, as well as in actions con- cerning her own property, or in those founded upon her contracts. Cases illustrating this rule as it prevails in New York, have already been given.^ Similar conclusions have been reached by the courts of the other States whose legislation is substantially the same as that of New York. Thus it is held in Iowa, under 1 Long V. Morrison, 14 Ind. 596. covery in the present case. ... It is well 2 Sheldon v. Steamship " Uncle Sara," settled that for an injury done to the per- 18 Cal. 526 ; Warner v. The Same, 9 Cal. son of a married woman, she must join 697. Each of these cases was an action with the husband in the action ; and it is by husband and wife to recover damages Immaterial that the injury is charged to against the carrier, the wife being the have been committed in violation of a passenger. The plaintiff alleged and contract. If the act producing the injury proved deceit by defendant, wrongful de- be itself tortious, it may be so treated for tention of the passengers, by which they all remedial purposes, and it would be ab- Buffered greatly, — were made sick, and surd to hold that, because the wrong done other personal injuries. The defence re- amounts to the breach of a contract, it is lied on a misjoinder of the plaintiffs, therefore purged of its tortious character." Cole J. said (p. 533 of the first case) : The opinion holds that the common-law " We agree that the plaintiffs cannot re- rule In the case of torts to wife's person is cover jointly in an action ex contractu for unchanged in California. a breach of the contract; but this does not ' See supra, § 239. appear to us a sufficient answer to a re- ACTIONS BY HUSBAND AND WIFE. 295 the existing statutory provisions, that a wife must be the sole plaintiff in an action instituted to recover damages for a malicious prosecution of herself ; the joinder of her husband is improper, since the damages when recovered are her own sepai'ate property, in which he has no interest or share ; ^ and, on the same principle, a suit for a libel upon herself must be brought by the wife alone .2 § 244. While the general rule of the new procedure, as it is found in most States, requires a joinder of husband and wife in actions for torts to her person, she may sue alone to recover dam- ages arising from torts and negligences and other wrongs to her own property; these actions fall within the language of the codes, and plainly " concern her separate property." Thus it has been held that the wife may maintain a suit in her own name to recover damages for a trespass to land owned by her, " although her husband occupied the land in the usual manner with her and their family, and cultivated it, but had no legal or other rights in it." ^ If she can prosecute a suit for trespass, she can certainly do the same when the injury is negligent instead of violent and in- tentional. On the other hand, there are circumstances under which an action should be maintained by the husband alone, although the wife may have or seem to have some interest in the subject- matter of the controversy. Thus in California, he must sue alone in actions relating to the " common property " of the husband and wife, and in those relating to " homesteads " as the same are defined and regulated by the statutes of the State.* These sub- jects, however, depend entirely upon the special provisions of the statutes in the several commonwealths, and have no proper connection with the general system of procedure established by the various codes. It seems that the husband alone can sue for a conversion or loss of or injury to those articles of personal use belonging to the wife, — her clothing and ornaments, — which at the common law constitute her paraphernalia.^ 1 Musselman v. Galligher, 32 Iowa, " Barrett v. Tewksbury, 18 Cal. 334 ; 383. Guiod v. Guiod, 14 Cal. 506 ; Cook b. 2 Pancoast v. Bumell, 32 Iowa, 394. Klink, 8 Cal. 347; Poole v. Gerrard, 6 See Shuler v. Millsap's Ex'or, 71 N. C. 297. Cal. 71. 3 Boos V. Comber, 24 Wis. 499. The » McCormick v. Penn. Cent. K. E.,49 title being in her, the possession would be N. Y. 803, 317. See also Curtis v. Del. hers if such possession were deemed ne- Lack. & West. R. R., 74 N. Y. 116. cessary to the maintenance of the action. 296 CIVIL KEMEDIES. § 245. Whether, under the legislation of the various States, actions for tort can be maintained by the wife against the husband, or by the husband against the wife, does not seem to have been definitively settled by judicial decision. The departure from the ancient theory of the marriage relation has been as great in New York as in any other commonwealth, and far greater than in most, and yet, as has been shown, the courts of that State have declared against the possibility of actions between the spouses for any personal torts committed by one upon the other, such as libels, assault and battery, and the like. The same result would seem to be inevitable under the more restricted legislation of other States, for their statutes which modify the common-law doctrines of marriage are confined in their terms to her power over her separate property and over contracts. Actions between husband and wife, based upon torts done to property, have arisen, but their propriety has not been finally determined. ^ There does not, however, seem to be any real difficulty in principle. If a wife is clothed with full authority over her own property as though she was unmarried, and if, in pursuance thereof, she is permitted to invoke the aid of judicial proceedings in enforcing contracts against her husband, and in recovering from him the possession of lands and chattels, there can be no valid ground for refusing to her the power of maintaining actions against him for the wrongful taking, detention, or conversion of her chattels, or for injuries done to her property by violence or by negligence. Both classes of actions depend upon the same fundamental rights, — the rights of property which the statute fully confers upon her. If the owner may recover from her husband the very thing 1 In Owen v. Owen, 22 Iowa, 270, the Cole J. said (p. 468), after showing that wife sued her husband to recover the the money continued to be the property of value of certain United States bonds, her the husband while in the possession of the separate property, wrongfully taken by wife, and that, when it passed into the him and converted to his own use. The possession of her administrator, he might plaintiff had a verdict and judgment on assert his own right to its possession, the trial, but the Supreme Court declined " which is then for the first time, in con- to pass upon the question whether such templation of law, denied," — "If the an action was maintainable. In Davidson money was actually converted to her own ». Smith, 20 Iowa, 466, a husband was use, contrary to his will, it was a tort, and permitted to recover against the adminis- not a contract, and sucli a tort did not trator of his deceased wife the amount of make it her own, and ubijus ibi remedium. certain money belonging to himself which A proceeding to secure the money to the hus- she had unlawfully taken from his posses- hand in the lifetime of the wife would neces- sion, and detained until her death, refusing soriVy he an equitable one," to surrender or return it at his request. PLAINTIFFS IN EQUITABLE ACTIONS. 297 itself — the laud or chattel — in a real action, it is not an enlarge- ment of her power to suffer her to recover the value of such things wholly or partially in a personal action. The notion that the proceeding must be equitable is a remnant of the ancient sys- tem which has been abrogated, and is conceived in forgetfulness of the radical changes made by the statutes in the common-law theory of the marriage relation. If the facts constituting the cause of action are stated in the pleading, it is both unnecessary and improper to call the action equitable, since the relief, if granted, is the ordinary pecuniary judgment against the defendant per- sonally, and not a judgment in rem against his property. § 246. The desertion of his v/ife and family by the husband does not increase her powers and capacities in reference to the bringing and maintaining of judicial proceedings, unless provi- sion is made for such an emergency by express statute. Thus, after such desertion, the wife cannot maintain an action in her own name to set aside a conveyance of land alleged to have been obtained from him by fraud.^ In several States, however, the codes contain express provisions, which, in case of desertion by the husband, permit the wife to prosecute and defend such actions as he might have done.^ § 247. Third : Equitable Actions. The grand principle which underlies the doctrine of equity in relation to parties is, that every judicial controversy should, if possible, be ended in one litigation ; that the decree pronounced in the single suit should determine all rights, interests, and claims, should ascertain and define all conflicting relations, and should forever settle all ques- tions pertaining to the subject-matter. Since the chancery judges were not hampered by the legal dogma that one judgment must be rendered alike for all the plaintiffs and agaiust all the defend- ants on the record, they were enabled to adopt and enforce such practical rules as would render this principle operative and effi- cient. In disclosing these rules, and in explaining their applica- tion, I am not confined to decisions made by courts professedly governed by the reformed procedure. The codes, as has already been shown, have taken the most general doctrines of equity in relation to parties, have put them into a statutory form, and have made them applicable without exception to all actions. Whether these doctrines have been entirely incorporated into the legal 1 Green v. Lyndes, 12 Wis. 404. 2 gee supra, § 236. 298 CIVIL REMEDIES. actions under the codes has sometimes been doubted ; it is univer- sally admitted, however, that they are operative with their full force and effect in all equitable actions which may be brought in accordance with the new procedure. For the purpose of ascer- taining the existing rules which control the selection of parties in equitable actions, we are not, therefore, restricted to those States which have accepted the reform ; we may and must extend our inquiry to England and to other States of this country wher- ever equity exists as a separate division of the municipal law. I shall endeavor, in a very condensed and summary manner, to give the doctrine of parties plaintiff, which has been established by courts of equity and in equitable actions, whether prior or subse- quent to the great reform introduced into so many of the States, and the result will exTpress the law as it now exists in those States.^ § 248. It is impossible to lay down with precision many rules in reference to plaintiffs, because equity does not particularly eoncei-n itself with determining that such a person shall be a plaintiff, and such another a defendant, but rather requires in a more general form that the persons shall be parties, so as to be bound by the decree, and is in general satisfied if they are thus brought before the court either as plaintiffs or as defendants. In other words, the rules of equity seldom declare that a given per- son or class of persons must be plaintiffs, but simply declare that such person or class must be made parties, if not as plaintiffs, then as defendants.^ The result is that the positive rules as announced by courts and as gathered from a comparison of deci- sions, are much more full and explicit in reference to defendants than they are in reference to plaintiffs. In actual practice, all persons having an interest in the subject-matter, and therefore either necessary or proper parties, except the actual plaintiff who institutes and prosecutes the suit, are generally made defendants, even though their interests may be concurrent with those of this plaintiff. Still, different individuals holding different rights may be united as plaintiffs in equitable actions; such a joinder is often provided for by well-settled doctrines, and, although their require- ' In this subdivision I have drawn American editor, and liave closely fol- very largely upon the fourth American lowed that most admirable work, edition of Daniell's Chancery Pleadings, 2 ggg bilking „_ fry, 1 Merlr. 244, and the learned notes of Mr. Perkins, the 262. PLAINTIFFS IN EQUITABLE ACTIONS. 299 ment is not peremptory, these doctrines must be discussed and fully stated. The persons that can be made co-plaintiffs in an equity suit may be roughly separated into two general classes : (1) Those whose rights, claims, and interests, as against the de- fendant, are joint, — not necessarily joint in the strict, technical sense of the common law, but in a broader and popular sense, — that is, those whose interests, claims, and rights, whether legal or equitable, are concurrent, arising out of the same events, having the same general nature, and entitled to the same sort of relief. All such persons must be brought before the court as parties, and naturally they should be plaintiffs, and so the rules primarily re- quire ; but the requirement is by no means peremptory, and in many and in even the great majority of instances, the equity principle is satisfied if all but the one who actually sets the cause in motion are placed among the defendants. (2) In the second class are found all those persons who are collaterally interested in the subject-matter of the conti'oversy, whose interests and claims, although antagonistic to the defendant, and to that ex- tent, therefore, in harmony with those of the real plaintiff, are still several and distinct in their nature, arising from different facts and circumstances, and demanding perhaps a different re- lief. Although the individuals or the class which have been thus vaguely described may be joined as co-plaintiffs with the one, who is the chief actor in the suit, and although the rules speak of such a joinder as possible, yet in actual practice they are almost invariably placed among the defendants. With this preliminary explanation, which modifies the entire doctrine of equity in rela- tion to plaintiffs, I shall proceed to state the general principles which underlie the whole equitable system of parties, and to illustrate the working of these principles in the more important species and varieties of actions by which equitable remedies are conferred. § 249. The fundamental principle may be stated as follows : The plaintiff who institutes an equitable action must bring before the court all those persons who have such relations to the subject- matter of the controversy that, in order to prevent further liti- gation by them, they must be included in and bound by the present decree ; in other words, all those persons M'ho are so related to the controversy and its subject-matter, that, unless thus concluded by the decree, they might set up some future claim, 300 CIVIL REMEDIES. and commence some future litigation growing out of or connected with the same subject-matter, against the defendant who is pros- ecuted in the present suit, and from whom the relief therein is actually obtained. The principle as thus expressed assumes, what is always true in practice, that in every equitable action there is some person, or group of persons, like a firm or joint tenants, who primarily institutes the proceeding, and demands the relief for his own benefit ; and him, or them, we may designate " the plain- tiff ; " and there is also some person or group of persons against whom all the real demands are made, and from whom the sub- stantial remedy sought by the action is asked, — and him we denominate " the defendant." In addition to these two con- testants, there are the other individuals described in the foregoing proposition, who must also be brought before the court and made parties to the controversy either as co-plaintiffs or as co-defendants. Equity is satisfied in most instances by making them co-defend- ants, and they are generally so treated in actual practice, unless their interests are so identical with those of the plaintiff that they must participate in the substantial relief awarded by the decree. The special subject of our present inquiry may therefore be stated thus : In what cases and under what circumstances are such per- sons primarily and naturally to be associated as co-plaintiffs rather than as co-defendants? The answer to this question embodies the principle in its most general form which equity courts have applied in all species of actions to determine the proper joinder of plaintiffs. All those persons whose rights and interests in the subject-matter, and in the relief demanded, are concurrent with the plaintiffs, must be made parties, and naturally will be made co-plaintiffs, although it is sufficient in most instances if they are brought into the cause as co-defendants. The principle in this very general form is too vague to be of any value as a practical rule, and I shall therefore take up in order the most important classes of cases in which it is applied. ^ § 250. The first of the subordinate general principles into which the foregoing vague doctrine may be subdivided, is the following : When the actual plaintiff, as above described, has only an equitable estate, interest, or primary right in the subject- matter of the suit, the person who holds the legal estate, inter- est, or right therein, should be made a party, and primarily a 1 See Janes v. "Williams, 31 Ark. 175 ; Pfolil v. Simpson, 74 N. Y. 137. PLAINTIFFS IN EQUITABLE ACTIONS. 301 co-plaintiff; for without such joinder the defendant might be subjected to another litigation from this legal owner or holder of the legal title, a result which equity strives in every way to pre- vent.-* One of the most familiar as well as important illustra- tions of this general principle is the rule which prevails in suits relating to trust property. When property is held in trust, and an action concerning it is brought by the beneficiary or person claiming under the trust, the trustee, or one in whom the legal title is vested, must be made a co-plaintiff.^ As, for example, when a mortgage has been given to a trustee in trust for certain bene- ficiaries, the trustee and the beneficiaries must unite in a suit to foreclose.^ The principle applies to all cases where the legal title to sue stands in one, and the beneficial interest in the sub- ject and in the result is held by another ; both must unite as plain- tiffs. Thus, if a covenant is made with a trustee for the benefit of a cestui que trust, both must join in an action to compel a specific performance.* The case of a simple contract, made by an agent, when the agency appears on the face of the agi'eement, or can be easily established by extrinsic evidence, does not fall within the operation of this rule, for the principal can sue alone and prove the agency if it is disputed. If, however, the agency does not appear in the contract itself, and the principal or person for whom the agreement is made cannot prove it with ease and certainty, then the agent may be made a party so as to bind his interest.^ When an agent acts in any transaction on his own account as well as on account of his principal, so that he has a 1 1 Daniell's, p. 192. « Story Eq. PI. § 209 ; Cope v. Parry, 2 1 Daniell's, p. 193. See Western 2 Jac. & Walk. 538. See McCotter v. R. R. V. Nolan, 48 N. Y. 513; Malin u. Lawrence, 6 N. Y. Sup. Ct.392, 395. Malin, 2 Johns. Ch. 2.38; Fish v. How- 5 1 Daniell's, p. 196; Botsford v. Burr, anrl, 1 Paige, 20 ; Cassiday v. McDaniel, 2 Johns. Ch. 409 ; Bartlett v. Pickersgill, 8 B. Mon. 519; Covington, &o. E. E. d. 1 Co.v, 15. It should be remembered that Bowlier's Heirs, 9 Bush, 468. See also when a contract is made by an agent in Weetjin v. Vibbard, 5 Hun, 265 ; Wes- his own name, expressly for the benefit tern R. R. v. Nolan, 48 N. Y. 513 ; Sand- of another, he is, according to the codes, ford V. Jodell, 2 Sm. & Giff. 7(5 ; O'Brien a trustee of an express trust, and may sue V. O'Connell, 7 Hun, 228 ; Holden v. N. Y. upon it in his own name, without joining & Erie Bk., 72 N. Y. 286, 297 ; Eldridge v. the beneficiary as a party. To this extent Putnam, 46 Wis. 205 ; Dewey v. Moyer, the new procedure has modified the rule 9 Hun, 473 ; Fort Stanwix Bk. v. Leggett, which prevailed in equity, and which re- 51 N. Y. 552 ; Fox v. Moyer, 54 id. 125. quired that both persons should join in 3 Story Eq. PI., §§ 201, 209 ; Wood v. bringing the action. Williams, 4 Mad. 86 ; Hichens v. Kelly, 2 Sm. & G. 264. 302 CIVIL REMEDIES. beneficial interest in the subject-matter, he must be made a co-plaintiff with his principal.^ § 251. The case of suits brought by the assignees of things in action is another special example of this general principle. Where a legal thing in action had been assigned, the assignee was per- mitted to sue in equity for its enforcement in his own name, but the assignor, or his personal representative if he was dead, was an indispensable party, if not as a co-plaintiff, then as a defend- ant ; otherwise the debtor might be subjected to a second action at law in the name of the assignor.^ This particular rule, how- ever, as has been shown in the preceding sections of the present chapter, has been entirely abrogated in most of the States that have adopted the new procedure, since their codes expressly per- mit the assignee to sue alone without joining the assignor either as a co-plaintiff or as a defendant ; but it is substantially retained by the codes of Kentucky and of Indiana. § 252. In ordinary suits for the administration of the estates of deceased persons brought bj' creditors, legatees, or distributees, a general personal representative of the estate — an administrator or executor — is indispensable, and is a necessary party, and should properly be made a co-plaintiff, although he may be put with the defendants.^ These ordinary administration suits, which are the common means in England of winding up and settling the estates of decedents, are practically unknown in this country. It is only under some exceptional circumstances that the equity jurisdiction is with us invoked, not to supersede the action of the probate courts, but to aid it, when if left to itself it would fail to afford complete relief and to do complete justice. When- ever such exceptional circumstances exist, and by reason of fraud, collusion, or other similar cause on the part of the execu- tor or administrator, a creditor, or legatee, or distributee of an 1 Small V. AttwoocJ, 1 Younge, 407. assignment of a legal and of an equitable 2 1 Daniell's, pp. 197-200, and cases thing in action in respect to the parties, there cited. Where an equitable thing s 1 Daniell's, p. 201 ; Penny v. Watts, in action, or an equitable interest, was 2 Phil. 149, 153; Donald v. Bather, 16 assigned, the assignee could sue alone, Beav. 26; Croft v. Waterton, 13 Sim. since there was no possible danger of an 653. For illustrations of suits by adminis- action at law by the assignor. Padwick trators, heirs, &o., see Marsh v. Bd. of V. Piatt, 11 Beav. 603; Bagshaw v. East- Supervisors, 38 Wis. 250; Jones v. Bills- ern Union R. Co., 7 Hare, 114 ; Blake v. tein, 28 id. 221 ; Chipman «. Montgomery, Jones, 3 Anst. 651. There is no difference, 63 N. Y. 221; Allison u. Robinson, 78 under the codes generally, between the N. C. 222; Harris u. Bryant, 83 id. 568. PLAINTIFFS IN EQUITABLE ACTIONS. 303 estate, may and does bring an action on behalf of the estate, even in such a case the personal representative — the administrator or executor — is a necessary party ; if he is not united as a co-plain- tiff, he must be added as a defendant.' § 253. In all the foregoing instances the rule has been applied to the holders of a legal and of an equitable estate or interest in the subject-matter; it extends also to all persons having legal demands against the defendant arising out of the same subject- matter or event. Thus, where a lease has been assigned by the lessee, both the lessor and the lessee may each sue the assignee at law for a breach by him of the covenants. In equity, how- ever, neither is permitted to sue the assignee without joining the other also, so that the defendant cannot be subjected to a double action and recovery.^ § 254. In the class of cases thus far examined, either an equi- table right existed in one person and a legal right in another, or a legal right was held by all. The same principle extends to the very numerous class of cases in which the rights against the de- fendant arising from the same subject-matter or event are all equitable. Whenever, therefore, in addition to the plaintiff who 1 Attorney-General v. Wj-nne, Mos. profits resulting from its use. The action 126 ; Wilson v. Moore, 1 My. & K. 126, was held to be properly brought. Downer 142; Saunders ti. Druce, 3 Drew. 140. As J. said (p. 133) : " The administrator can- examples of such actions, see Pisher v. not avoid his own sale, though he was Hubbell, 7 Lans. 481 ; 65 Barb. 74 ; 1 N. Y. guilty of fraud in making it. If he dies. Sup. Ct. 97; in which the same person or is removed, and an administrator de was executor of the estates of A. and of bonis non is appointed, the latter cannot B., and the plaintiffs, legatees of A., had avoid the wrongful sale by the first ad- claims which placed them in the position ministrator. This is the rule, except of creditors to the estate of B. ; and Lan- where there are statutory provisions au- caster v. Gould, 46 Ind. 397, which was thorizingthe administrator de bonis non to an action by legatees and next of kin, do what otherwise the creditors, legatees, against a creditor of the estate and the or distributees alone could do. . . . Cred- executor, to set aside a fraudulent allow- iters, legatees, and distributees are the ance and payment of a claim made by the persons who have a right to bring a suit executor to the creditor ; and Stronach v. in such a case. As there are no creditors Stronach, 20 Wis. 129,133. An admin- or legatees, the suit was rightfully brought istrator having frauduently assigned and by the next of kin. If the widow is one of transferred certain personal property be- the distributees, she ought to be a party." longing to the estate to a person who was See also Hills v. Sherwood, 48 Cal. 386, a participant in the fraud, the children of 392 ; Haynes f. Harris, 33 Iowa, 516, 518- the intestate, who were his only next of 520. kin, united in an action against the ad- ^ j Daniell's, pp. 206, 207 ; Sainstry v. ministrator and his assignee to set aside Grammer, 2 Eq. Cas. Abr. 165 ; City of the transfer, and for a delivery up of the London v. Kichmond, 2 Vern. 421 ; 1 Bro. property to the plaintiffs by the assignee, P. C. 516. or for an account of its value and the 304 CIVIL REMEDIES. actually institutes the action, there are other persons having con- current equitable rights against the defendant growing out of the same subject-matter, they should in general be made parties to the action, primarily no doubt as co-plaintiffs, but, if not, then as defendants. The doctrine thus stated in general terms has a very vi^ide application, and upon it are based a very large portion of the special rules as to parties which prevail in equity. It in- cludes not only those who have concurrent rights in the whole subject-matter of the suit, but those also who have similar rights in a part of it, such as joint tenants, who must all be parties in an action concerning the property .^ In a suit by joint tenants or tenants in common for a partition, all must be before the court; but it is not necessary of course that all should be plaintiffs.^ There have been relaxations of this general rule. An action by three out of forty-seven tenants in common, brought to restrain the defendants from quarrying stone upon the land which was owned in common by the whole number, has been sustained, not- withstanding an objection on the ground of the non-joinder was interposed.^ And where one tenant in common had leased his share for a long period of years, the lessee was permitted to maintain'a partition against the other tenants in common, without making the reversioner of his own share — the lessor — a party.* And generally a tenant for life may institute a partition without bringing in the remainder-men.^ When land is held by tenants in common for life, or when there are future contingent interests which may finally vest in persons not yet in being, a partition may be ha,d between those who possess the present estates ; but it will only be binding upon the parties who are before the court and those who are virtually represented by such parties.^ In an 1 1 Daniell's, pp. 207, 208 ; Haycock rather as a defendant than as a plaintiff. V. Haycock, 2 Ch. Cas. 124 ; Weston v. Eosekrans v. White, 7 Lans. 486. The Keighley, Finch, 82; Stafford v. City administrator of a deceased tenant in of London, 1 P. Wms. 428 ; 1 Stra. 95. common may, under certain circum- Where there are two or more trustees, stances, be a proper party, together with they must all unite, since their interest is his heirs, in a partition. Scott v. Guern- strictly joint. Thatcher v. Candee, 33 sey, 60 Barb. 163, 181. See Sullivan v. How. Pr. 145 (N. Y. Ct. of App.). Sullivan, 4 Hun, 198 (partition). 2 Anon., 3 Swanst. 139 ; Brashear v. 3 Ackroyd v. Briggs, 14 W. R. 25. Macey, 3 J. J. Marsh. 93 ; Braker i'. Dev- * Baring v. Nash, 1 "Ves. & B. 551 ; ereaux, 8 Paige, 513 ; Borah o. Arcliers, Heaton v. Dearden, 16 Beav. 147. 7 Dana, 176; Cornish v. Gest, 2 Cox, 27. 6 vVills v. Slade, 6 Ves. 498 ; Brassey ». In partition by a tenant in common, his Chalmers, 4 De G., M. &G. 528. wife is not a necessary co-plaintiff ; she ^ Wotten v. Copeland, 7 Johns. Ch. should be made a party to the action, but 140 ; Striker v. Mott, 2 Paige, 387, 389 ; PLAINTIFFS IN EQUITABLE ACTIONS. 305 action brought to determine boundaries, all persons interested, whether their estates are present or future, remainder-men and reversioners, must be parties, although of course all need not be plaintiffs.^ It is not necessary, as a general rule, to make the actual occupying tenants or lessees parties in suits relating to real property. They must, however, be parties in special cases where they are directly interested and their concurrence is necessary ; as, for example, in a partition suit where a tenant in common has leased his share, and in a suit brought to restrain an ejectment which was instituted against the tenants themselves instead of against their lessor.^ If, on the other hand, lessees, or any persons holding limited interests, sue to establish some gen- eral right, that is, some right belonging to or affecting the whole estate and not merely their own temporary possession and user, the ultimate owners of the inheritance must also be made parties, so that they may be bound by the decree, but the -requirement will be satisfied by making them defendants.^ Thus, where a lessee brought an action to establish a right of way against a person who had erected an obstruction, it was held that his lessor should have been joined as a party to the suit.* § 255. The doctrine that persons having or claiming a joint interest or estate must unite, extends to actions which relate to personal property as well as to those which relate to real prop- erty.^ The following particular instances will illustrate this application. If a legacy is given to two jointly, both must sue for it ; but if legacies are given separately, there being no com- mon interest in any particular one, each legatee may sue for his own.® Where two or more persons are jointly interested in the money secured by a mortgage, that is, according to the law pre- vailing in this country, when they are joint mortgagees or joint assignees of a mortgage, they must all unite in a foreclosure.^ Woodworth v. Campbell, 5 Paige, 518; 3 1 Daniell's, pp. 209, 210. Gaskell v. Gaskell, 6 Sim. 643. * Poore v. Clarke, 2 Atk. 515. 1 1 Daniell's, p. 209; Story Eq. PI. » 1 Daniell's, p. 211. § 165; Bayley w. Best, 1 Russ. & My. « Haycock y. Haycock, 2 Ch. Cas. 124 ; 659 ; Miller w. Warmington, 1 Jac. & Walk. Hughsen v. Cookson, 3 Y. & C. 578. 484; Speer v. Crawter, 2 Meriv. 410; ^ Story Eq. PI. § 201; Stucker v. Attorney-General v. Stephens, 1 K. & J. Stucker, 3 J. J. Marsh. 801 ; Wing v. 724, 6 DeG., M. & G. Ill ; Pope v. Me- Davis, 7 Greenl. 31 ; Noyes u. Sawyer, 3 lone, 2 A. K. Marsh 239. Vt. 160 ; Woodward v. Wood, 19 Ala. 21 3 ; 2 1 Daniell's, p. 209; Story Eq. PI. Palmer v Earl of Carlisle, 1 S. & S. 423; § 151 ; Lawley v. Walden, 3 Swanst. 142 ; Lowe v. Morgan, 1 Bro. C. C. 368 ; Stans- Poole V. Marsh, 8 Sim. 528. field v. Hobson, 16 Beay. 189. For an ex- 20 306 CIVIL REMEDIES. And it is not even necessary that they should be joint holders of the debt secured by the mortgage. All persons who are entitled to share in the proceeds, whether their interest is joint or in common, or several, must be made co-plaintiffs, or at least must be brought into the action as defendants.-^ When, however, the mortgage has been assigned to trustees in trust for the benefit of creditors, the trustees are the only necessary parties plaintiff in a foreclosure suit, and the creditors being represented by them need not be joined.^ Actions to foreclose mortgages upon land, and those to enforce and foreclose the vendor's lien upon land for the purchase-price thereof, are in all respects based upon the same principles. The equitable doctrine prevailing in by far the greater part of the States, and which has entirely displaced the legal notion, regards the debt as the essential fact, and the mort- gage as a mere incident thereto. The holder of the mortgage has therefore no estate in the mortgaged premises. Whoever is interested in the debt as one of the creditors is therefore inter- ested in the mortgage or in the vendor's lien, and, upon the well- settled rules of equity procedure, all must be made parties in order to avoid a division of the claim and a multiplicity of ac- tions. In the western States it is very common, on the sale of land, for the vendor to take the vendee's notes payable at suc- cessive dates for the price, and either to receive back a mortgage given to secure such notes, or to rely upon the equitable lien arising from the sale as the security. All the holders of such notes must join as plaintiffs in an action to foreclose, whether the security be a mortgage or the mere vendor's lien.^ A note and ample of misjoinder, because there was different mortgagees. All but one joined no community of interest, see Ferris v. in a foreclosure, and he was afterwards Diekerson, 47 Ind. 382. See also Thomp- permitted to foreclose for his own behalf, son V. Smith, 63 N. Y. 301 {a vendor's making the other mortgagees, as well as lien) ; Simpson a. Satterlee, 64 id. 657; all other persons interested, defendants. 6 Hun, 305 (where the holder of a mort- See, per contra, Montgomerie v. Marquis gage has assigned it as collateral security, of Bath, 3 Ves. 560, — a case which has he may foreclose, but the assignee must been severely criticised, also be joined as a necessary party); = Morley v. Morley, 25 Beav. 253; Church V. Smith, 39 V^is. 492 (in an action Thomas v. Dunning, 5 De G. & S. 618 ; by a grantor to enforce the grantor's lien. Knight v. Pocock, 24 Beav. 436. when a portion of the notes given for in- ^ Pettibone v. Edwards, 15 Wis. 95 ; stalments of the fund have been assigned, Jenkins o. Smith, 4 Mete. (Ky.) 380; the assignees are necessary parties). Merritt v. Wells, 18 Ind. 171 ; Goodall v. 1 Story Eq. PI. § 201 ; Goodall „. Mopley, 45 Ind. 355, 358. See, however, Mopley, 45 Ind. 355, 358. In this case a Eankin v. Major, 9 Iowa, 297. Upon the mortgage had been executed to several death of a vendor, it is held, in Kentucky, PLAINTIFFS IN EQUITABLE ACTIONS. 307 mortgage having been given to a husband and wife as security for money of the wife loaned to the mortgagor, and the husband dying, the wife was held to be the proper party to sue in her own name, either as the surviving promisee and mortgagee, or because the contract concerned her separate estate.^ § 256. The rule which regulates actions to foreclose prevails also in those brought to redeem. As all the persons entitled to share in the mortgage debt must unite in the foreclosure suit, so in a suit to redeem, the mortgagor, and all others who have a common right with him to redeem, must be made parties ; in strict theory they should be co-plaintiffs, but it is sufficient if the one who for his own purposes institutes the action adds the others as defendants.^ Where a judgment of foreclosure had been obtained on a mortgage, and, with the authority or knowledge of the mortgagee, the sheriff sold the premises in the usual manner, but at a merely nominal price, it was held, in Indiana, that the mortgagor and the mortgagee might unite in an action to set the sale aside, and to redeem the land from the purchaser, — the mortgagor by virtue of his ownership, and the mortgagee b}' virtue of his interest in having a price produced at the sale large enough to pay his entire claim. ^ The general doctrine above stated is strictly enforced in redemption suits of all varieties, the underlying principle being that a redemption must be complete and total, that the creditor shall not be compelled to accept a that his heirs must be joined as plaintiffs death of the mortgagee, his heirs must, in a suit to enforce the lien for purchase- in general, be parties to the foreclosure, money, that the administrator cannot although there are some exceptions, as maintain the action alone. Anderson v. when they are non-residents, and have Sutton, 2 Duv. 480, 486; Smith k. West's simply the dry legal title without any Executors, 5 Litt. 48 ; Edwards v. Bohan- beneficial interest, the mortgage having non, 2 Dana, 98 ; Thornton v. Knox's been assigned by the mortgagee. Ether- Executors, 6 B. Mon. 74. This ruling idge v. Vernoy, 71 N. C. 184, 185, 187. must, I think, be confined to the case of ^ Shockley v. Shockley, 20 Ind. 108. a contract to sell, where the legal title ^ i Daniell's, pp. 212, 213 ; Story Eq. remains in the heirs and they must con- PI. § 201 ; Chapman v. Hunt, 1 McCarter, vey to the vendee. If the land has al- 149; Large v. Van Doren, 1 McCarter, ready been conveyed, the heirs cannot be 208. See also Haggerson u. Phillips, 37 necessary parties. As the debt due for Wis. 364 (widow of a deceased mortgagor the purchase price is a personal asset, it is not a necessary party) ; Parker v, belongs to the personal estate, and falls Small, 58 Ind. 349 (in a suit to redeem by within the exclusive control of the ad- a grantee, the grantor is not a necessary ministrator. Any proceeding to enforce party). its collection, it would seem, should be ^ Berkshire v. Shultz, 25 Ind. 523. instituted by the administrator alone. In See also McCuUoch's Administrator v. North Carolina, the English doctrine as Hollingsworth, 27 Ind. 115 ; Stringfleld to mortgages still prevails, and, upon the v. Graff, 22 lov/a, 438, 308 CIVIL EEMEDIES. partial payment of his claim, or to make a partial surrender of his securities. When two tracts of land are mortgaged to the same person to secure the same debt, and they afterwards come into the hands of different proprietors, one of them cannot be redeemed without the other ; the owners of both the parcels, and all per- sons interested in them, must be parties to the action, if not all as plaintiffs, then at least as defendants.^ This joinder of the persons interested in the two estates is only necessary, however, while the mortgages are held by the same mortgagee or other holder. If one of them is assigned, or if by any other means they come into the hands of different holders, they being on dis- tinct parcels of land, all connection between them is severed, and the actions to redeem must be separate.^ If the action to redeem is brought by an incumbrancer, the same rule applies. In a suit by an incumbrancer, who seeks to redeem from a prior incum- brance, the mortgagor or owner of the land subject to the incum- brances, whatever they may be, is an indispensable party, although not necessarily a plaintiff.^ While a second mortgagee, in an action to redeem, must thus bring in the mortgagor or his heir or other owner of the land, he may foreclose the mortgagor and a third mortgagee without joining the first mortgagee as a party, since his proceeding does not in the least affect the rights of such first mortgagee, but its effect is merely to put himself in the place of the mortgagor and of the third mortgagee.* This rule may be stated in a more general form. In suits brought to en- force subsequent claims, interests, or incumbrances, on property subject to prior charges which are to be left unaffected, the holders of such prior liens or interests need not be made parties.^ 1 story Eq. PL, §§ 182, 287 ; Palk v. Palk v. Lord Clinton, 12 Ves. 48 ; Hallock Lord Clinton, 12 Ves. 48 ; Lord Choi- v. Smith, 4 Johns. Ch. 649. mondeley u. Lord Clinton, 2 Jac. & W. < 1 Daniell's, p. 214; Story Eq. PI. 1, 134 ; Ireson v. Denn, 2 Cox, 425 ; Jones § 193 ; Rose v. Page, 2 Sim. 471 ; Briscoe V. Smith, 2 Ves. 372 ; 6 Ves. 229 (n.) ; v. Kenriek, 1 Coop. temp. Cott. 371 ; Watts V. Symes, 1 De G. M. & G. 240 ; Arnold v. Bainbrigge, 2 De G. F. & J. 92 ; Tassell v. Smith, 2 De G. & J. 713 ; Vint Audsley v. Horn, 26 Beav. 195 ; 1 De G., V. Padget, 2 De G. & J. 611; Selby v. F. & J. 226; Person .;. Merrick, 5 Wis. Pomfret, 1 J. & H. 336 ; 3 De G. F. & J. 231 ; Wright v. Bundy, 11 Ind. 398. In 595 ; Bailey v. Myrick, 36 Me. 50. England, if the plaintiff in such an action 2 Willie V. Lugg, 2 Eden, 78. brings in the prior mortgagee, he must " 1 Daniell's, p. 214 ; Story Eq. PI. ofiFer to redeem his mortgage. Gordon §§ 84, 186, 195; Thomson v. Basker- ... Horsfall, 5 Moore, 393. vill, 3 Ch. Rep. 215 ; Fanner v. Curtis, « 1 Daniell's, p. 214 ; Rose v. Page, 2 2 Sim. 466 ; Hunter v. Macklew, 5 Hare, Sim. 471 ; Parker v. Fuller, 1 E. & M. 238; Fell t\ Brown, 2 Bro. C. C. 276; 656. PLAINTIFFS IN EQUITABLE ACTIONS. 309 § 257. The general principle that all persons concurrently interested in the subject-matter of the suit or in its result, whether that relate to real or to personal property, must be par- ties, is invoked and strictly enforced in all species of actions which are brought to obtain an accounting against tlie defendant. The remedy of accounting is multiform, and it is often made the basis of some further and ulterior relief, such as rescission and cancellation, redemption, and the like ; but wherever an account- ing is sought, either for its own sake or as the preliminary step to further judicial action, the rules as to parties are controlling. When several persons are interested in having an account taken, or in its result, one of them cannot be permitted to institute a proceeding for that purpose by himself alone and without joining the others in some manner, so that they shall be bound by the decree, for otherwise the defendant would be exposed to as many actions as there are persons interested, each brought and main- tained for the same purpose and upon substantially the same proofs.'' The actions in which an accounting is necessary are very numerous, and arise out of external circumstances very unlike, but, in all of them, the rule as thus stated must be fol- lowed in the selection of the parties. Thus in a partnership, or any other like adventure where there is a sharing of profits or losses, all the persons having shares must be made parties to a suit brought for an accounting.^ Under the proper circumstances one may sometimes sue on behalf of himself and all the others interested, and it is not indispensable that the individuals having concurrent rights should all be joined as plaintiffs in the action.^ If, however, one or more of the parties are non-residents, and beyond the jurisdiction of the court, the rule, under such circum- stances, is sometimes relaxed, and the action is allowed to pro- ceed with those parties who are within the reach of the court and its process. The admission of this exception, or of similar ones, is not, however, a matter of absolute right; it depends rather 1 1 Daniell's, p. 216 ; Petrie v. Petrie, Hammond v. Pennock, 61 N. Y. 145 (re- 7 Lans. 90. See also Getty v. Develin, 70 scission on account of fraud). N. Y. 504 (accounting) ; Pfohl v. Simp- ^ Ireton v. Lewes, Finch, 96 ; Moffat son, 74 id. 137 (action against a fund or v. Farquharson, 2 Bro. C. C. 838. a class of persons) ; Eldridge v. Putnam, s Story Eq. PI. § 166 ; Good v. Blew- 46 Wis. 205 (all the cestuis que trustent itt, 13 Ves. 397 ; Cullen v. Duke of must join in an action against the trus- Queensbury, 1 Bro. C. C. 101 ; Hills v. tee for an accounting) ; Hughes v. Boone, Nash, 1 Phila. 594 ; Wells v. Strange, 5 81 N. C. 204 (action for contribution) ; Ga. 22; Mudgett v. Gager, 52 Me. 541. 310 CIVIL REMEDIES. upon the sound discretion of the court regulated by considera- tions of equity and justice.i The heirs of a deceased partner must be parties in an action brought to sell real estate of the firm in winding up the partnership and paying the firm debts ; although the land is, for the purpose of paying firm debts, treated in equity as a personal asset, yet the legal title of the heir must be divested, and to that end he must be brought in as a party .^ On the death of a partner, his personal representative may at once maintain an action against the survivors for an accounting ; and when there was no real estate held by the firm as a part of its assets, so that no question can arise as to the title of any lands, the heirs of the deceased are neither necessary nor proper parties to such action.^ § 258. Another example is found in the action by a residuary legatee, brought to obtain an account of his share of the residue ; he must make all persons interested in the residue parties, even though their interest may be quite remote and contin- gent.* One residuary legatee may sometimes sue on behalf of all others interested.^ Also in a suit by next of kin or distrib- utees against the administrator for an account, all of the next of kin or distributees must be parties, naturally as plaintiffs, but if not, then as defendants. This is the established equity rule prior to or independent of any changes made by statutes.^ These 1 The following cases vrill show to what extent, and under what circum- stances, the rule has been relaxed : Story Eq. PI. § 78 ; Darwent v. Walton, 2 Atk. 610 ; Walley v. Walley, 1 Vern. 487 ; Towle V. Pierce, 12 Mete. 329 ; Vose u. Philbrook, 3 Story, 335 ; Lawrence v. Rokes, 53 Me. 110, 116 ; Fuller v. Benja- min, 23 Me. 255. '^ Pugh V. Currie, 5 Ala. 446 ; Lang v. Waring, 25 Ala. 625 ; Andrews v. Brown, 21 Ala. 437. 8 Cheeseman v. Wiggins, 1 N. Y. Sup. Ct. 595. 4 1 Daniell's, pp. 216, 217 ; Story Eq. PI. §§ 89, 203, 204 ; Parsons v. Neville, 3 Bro. C. C. 365 ; Cockburn v. Thompson, 16 Ves. 328 ; Brown v. Eicketts, 3 Johns. Ch. 553 ; Davoue v. Fanning, 4 Johns. Ch. 199; Pritchard v. Hicks, 1 Paige, 270 ; Sheppard o. Starke, 3 MunC. 29 ; West V. Randall, 2 Mason, 181, 190-199 ; Huson V. McKenzie, Dev. Eq. 463 ; Arendell v. Blackwell, Dev. Eq. 354 ; Bethel v. Wilson, 1 Dev. & Bat. Eq. 610. As illustrations of such remote and con- tingent interests, see Sherrit v. Birch, 3 Bro. C. C. 229 (Perkins's ed., note); Davies o. Davies, 11 Eng. L. & Eq. E. 199; Lenaghan v. Smith, 2 Phil. 301; Smith V. Snow, 3 Mad. 10 ; Hares v. Stringer, 15 Beav. 206; Grace w. Terring- ton, 1 Coll. 3. 5 Kettle V. Crary, 1 Paige, 417, 419, 420 ; Eoss v. Crary, 1 Paige, 416 ; Hal- lett V. Hallett, 2 Paige, 15, 19 ; Egberts!). Woods, 3 Paige, 517. 6 1 Daniell's, pp. 217, 218 ; Story Eq. PI. § 89 ; Hawkins v. Hawkins, 1 Hare, 543, 546 ; Noland v. Turner, 5 J. J. Marsh. 179 ; West v. Eandall, 2 Mason, 181, 190 ; Kellar v. Beelor, 5 Monr. 573 ; Oldham V. Collins, 4 J. J. Marsh. 50. See Petrie V. Petrie, 7 Lans. 90. Where land and personal property had been conveyed to a trustee upon certain trusts for a benefl- PLAINTIFFS IN EQUITABLE ACTIONS. 311 instances of distributees and residuary legatees thus given are in fact particular cases of a more general rule in reference to actions which have for their object, in whole or in part, an accounting by the defendant, which may be stated as follows : When the per- sons assert the claim to an account as a portion of a class entitled under a general description, all the members of that class, or all the individuals included under that general description, must be before the court ; if not among the original parties to the suit, they must be brought in before the final hearing, so that the rights of the entire bod}-- can be determined in one decree, and the defendant relieved from the possibility of a multiplicity of actions. Primarily, all these persons being interested in the account adversely to the defendant, they should all be made co-plaintiffs ; but, as has often been observed, the rules of equity do not demand this strict distinction between plaintiffs and defendants, and they are satisfied if all the individuals, besides the one actually instituting the suit, are placed among the defend- ants. It is also often possible, when the class is numerous, that one should sue on behalf of all the others. This general rule is most comprehensive in its practical application, and must be invoked in a very large number of cases which have little exter- nal resemblance ; it was well established both in England and in this country as a doctrine of equity procedure, but has of late years been much modified and relaxed in England by statutes.^ § 259. There are some exceptions, however, to the foregoing rule which requires all persons interested in the result of an accounting to be made parties. When some of the individuals who were originally interested have been already separately accounted with and paid, they need not be made parties to the suit. 2 And when the accounts and shares of the different per- sons have been kept entirely separate and distinct from each ciary, and the trustee had died, and all the personal estate of the beneficiary; and his estate, including the trust estate, had the heirs, because they succeeded to his been distributed to his heirs and next of real estate. Richtmyer v. Eichtmyer, 50 kin, and the beneficiary had also died, an Barb. 55. action was held properly brought by the l See 1 Daniell's, p. 217 ; Story Eq. administratorandheirs-at-lawof thelatter PI. § 90. See Baptist Church u. Presby- against the heirs and next of kin of the terian Church, 18 B. Mon. 635 ; Hutchin- deceased trustee for an accounting and son v. Roberts, 67 N. C. 223. settlement of the trust, a payment of the ^ WWoXf v. D'Wolf, 4 R. I. 450; personal property, and a conveyance of Branch v. Booker, 3 Munf . 43 ; Moore v. the land ; the administrator was properly Beauchamp, 5 Dana, 70. made a plaintiff, because he represented 312 CIVIL REMEDIES. other, so that neither one is interested in that of the others, although all relate to the same adventure or undertaking, there need be no joinder of all.^ And where persons are each entitled to a certain fixed portion of an ascertained sum in the hands of a trustee, each may sue for his own share without joining his co-beneficiaries.^ The distinction here referred to is important, and should be stated more fully, as follows : If a trustee holds a fund which he is bound to distribute to different beneficiaries in unequal proportions, and the proportionate share of each has not yet been ascertained, all the persons who are interested in the distribution are necessary parties to an action brought to enforce the trust ; but where the proportionate share of each beneficiary has been definitively ascertained by a proceeding binding on the trustee, each is entitled to demand paj'ment of the share belong- ing to himself, and when the payment is withheld he may main- tain a separate action for its recovery. The liability of the trustee to each is then exactly the same as though the sum ascertained to belong to him was the only sum which the trustee had received and had been directed to pay.^ When a person jointly interested in the account is out of the jurisdiction, the cause has sometimes been allowed to go on without hira as a party.* § 260. I shall now briefly describe some of the most important special applications of the foregoing general principles in relation to community and concurrence of interests. As a result of these principles, it is a general rule, with but few well-defined excep- tions, that trustees cannot alone maintain actions relating to the trust property, but the beneficiaries must also be made parties to the suit in some form, either as co-plaintiffs with the trustees or as defendants.^ The following are simple illustrations of this gen- 1 Weymouth v. Boyer, 1 Ves. 416 ; benefit of the superannuated preachers of Hills V, Nash, 1 Phil. 594, 597 ; Brown v, a certain " conference." It was held that De Tastet, Jac. 284 ; Bray v. Fromont, 6 the superannuated preachers of that body Mad. 5. might unite in an action to enforce the 2 1 Daniell's, p. 219 ; Story Eq. PI. trust for their own benefit and that of §§ 207 u, 212 ; Perry v. Knott, 5 Beav. future persons entitled under it. Baptist 293 ; Smith v. Snow, 3 Mad. 10 ; Hares v. Church v. Presbyterian Church, 18 B. Stringer, 15 Beav. 206 ; Lenaghan v. Mon. 635. Smith, 2 Pliil. 301 ; Hunt v. Peacock, 6 * Story Eq. PI. §§ 78, 89 ; West ». Hare, 361. Randall, 2 Mason, 196 ; Vose v. Philbrook, ' Gen. Mut. Ins. Co. v. Benson, 5 3 Story, 335; Lawrence u. Eokes, 53 Me. Duer, 168, 176, per Duer J, ; Walker v. 110; Mudgett v. Gager, 52 Me. 541. Paul, Stanton's (Ky.) code, p. 37. A « 1 Daniell's, pp. 220-224 ; Story Eq. fund had been devised to a trustee for the PL, §§ 207, 209 ; Covington, &c. E. K. o. PLAINTIFFS IN EQUITABLE ACTIONS. 313 eral doctrine. Where trustees in trust to sell lands brought an action against the purchaser at their sale to compel a specific performance of their contract of purchase, it was held that the cestuis que trustent of the purchase-money must be made parties.^ Again, where the trustees of a numerous unincorporated society brought an action to compel the specific performance of an agree- ment entered into b}' themselves for the benefit of the association, it was held that the members of the society should be joined, or, if they were too numerous, then some of them ought to be made co-plaintiffs, suing as representatives on behalf of the others.^ There are, however, as already stated, certain well-defined excep- tions to this general rule requiring trustees and cestuis que trustent ■ to be joined in suits concerning the trust property, of which the following are the most important : (1) When trustees appointed to sell lands are expressl}^ authorized by the deed of trust to sell in their own names, and it is further expressly provided in such deed that their own receipt of the price shall be a complete dis- charge to the purchaser, it is settled that they may maintain a suit to compel a specific performance against the purchaser with- out joining the cestuis que trustent with themselves as parties.^ (2) In some special instances, where the interest of the benefi- ciaries was simply collateral to the rights of the trustee against the defendant, the trustee has been permitted to sue alone.* (3) And in suits between the trustees themselves, brought by one to compel the other to account for and restore trust property misappropriated by him, the beneficiaries need not be made par- ties.® But if the cestuis que trustent have concurred in the breach Bowler's Heirs, 9 Bush, 468 ; Western wise, to divest himself of the trust. R. R. V. Nolan, 48 N. Y. 513 ; Large v. Thatcher v. Candee, 33 How. Pr. 145 Van Doren, 1 McCarter, 208 ; Stilwell v. (N. Y. Ct. of App.). And see cases cited McNeely, 1 Green Ch. 305 ; Van Doren supra under § 250. u. Robinson, 1 C. E. Green, 256 ; Malin i Calverley v. Phelp, 6 Mad. 229. V. Malin, 2 Johns. Ch. 238 ; Fish v. How- 2 Douglas v. Horsfall, 2 S. & S. 184. land, 1 Paige, 20 ; Sehenck v. Ellingwood, s See 1 Daniell's, pp. 221, 222, and 3 Edw. Ch. 175 ; Helm v. Hardin, 2 B. cases cited. Mon. 232 ; Burney v. Spear, 17 Ga. 223 ; * As, for example, in Saville v. Tan- Woodward V. Wood, 19 Ala. 213 ; Kirk v. cred, 1 Ves. Sen. 101 ; 3 Swanst. 141 ; Clark, Prec. Cha. 275 ; Phillipson v. Story Eq. PI. § 221. Gatty, 6 Hare, 26. Where two or more « Story Eq. PI. § 213 ; Franco u. trustees have been appointed, they must Franco, 3 Ves. 77 ; Bridget v. Hames, all unite in actions brought by them, as 1 Col. 72 ; May v. Selby, 1 Y. & C. their right is strictly joint ; and this rule 2.35; Horsley u. Fawcett, 11 Beav. 565; applies, although some one of them may Peake v. Ledger, 8 Hare, 313 ; 4 De have attempted, by assignment or other- G. & S. 137 ; Baynard v. Woolley, 20' 314 CIVIL REMEDIES. of trust, they must be joined in the suit brought by one trustee against his co-trustee to repair the fault.^ § 261. (4) The most important exception by far, as well as the most familiar one, is the case of executors and administrators ; they can always sue alone, without joining the legatees, distribu- tees, creditors, or other persons interested in the estate, as parties either plaintiff or defendant. The legal title to the personalty is so completely vested in the executors and administrators, that, both in law and in equity, they are considered as fully representing the rights and interests of all the other persons who have ultimate claims upon such estate as legatees, distributees, or creditors. Ill all actions, therefore, relating to the estate, they sue alone. This rule is fully established in equity as well as at law.^ All the acting executors or administrators must join ; ^ but if a por- tion only have proved, the others need not be made parties, although they may not have formally renounced.* It is not in- dispensable, however, that all the executors or administrators- should be plaintiffs ; for it is enough in equity if all the parties are before the court, so that one executor or administrator may sue as plaintiff, if he make his co-executor or co-administrator a defendant.^ When a residuary legatee sues for his share of the residue, all the other residuary legatees must be joined either as plaintiffs or defendants.^ And in a suit for distribution, all the Beav. 583 ; Allen v. Knight, 5 Hare, 272, 3 Ch. Rep. 92 ; Cramer v. Morton, 2 277 ; Cunningham u. Pell, 5 Paige, 607. MoUoy, 108. But see Chancellor v. Morecraft, 11 Beav. * Bavies n. Williams, 1 Sim. 5 ; Dyson 262. V. Morris, 1 Hare, 413 ; Rinehart v. Rine- 1 Jesse V. Bennett, 6 De G. M. & G. 609. hart, 2 McCarter, 44 ; Marsh v. Oliver, 2 1 Daniell's, p. 224 ; Jones u. Good- 1 McCarter, 262. But an executor who child, 3 P. Wms. 33 ; Peake u. Ledger, 8 has not proved the will may, nevertheless, Hare, 313 ; Smith v. Bol Jen, 33 Beav. be a necessary defendant in a suit brought 262. It has been lield that an adminis- to carry its trusts into effect. Ferguson trator, suing in equity to recover assets v. Ferguson, 1 Hayes & J. 300 ; Yates v. ot the estate, may join the distributees as Compton, 2 P. Wms. 308 ; Cramer v. Mor- co-plaintiffs ; that such uniting of parties, ton, 2 Moll. 108; Thompson v. Graham, though not at all necessary, is not im- 1 Paige, 384. proper. Richardson's Administrator v. ^ Wilkins v. Fry, 1 Meriv. 244, 262 ; Spencer, 18 B. Mon. 450. An adminis- Blount v. Burrow, 3 Bro. C. C. 90 ; Dare trator may maintain an action to set aside v. Allen, 1 Green, Ch. 288. transfers of bis intestate in fraud of cred- e i Daniell's, p. 225; Harvey ». iters, since he represents the creditors as Harvey, 4 Beav. 215, 220 ; Smart v. Brad- well as the deceased. Cooley v. Brown, stock, 7 Beav. 500 ; Bateman v. Margeri- 30 Iowa, 470, 473, 474. And see cases son, 6 Hare, 496, 499 ; Doody v. Iliggins, cited sup-a under § 252. 9 Hare, Ap. 82, 38 ; Gould v. Hayes, 19 ■ 3 1 Dafliell's, p. 228 ; Offley v. Jenney, Ala. 438. PLAINTIFFS IN EQUITABLE ACTIONS. 315 distributees must be brought in as parties, primarily as plaintiffs, but at all events as defendants.^ Where legacies are charged upon real estate, the executors alone are not sufficient parties ; but all the other legatees must be brought in, so that the assets may be marshalled, and the respective rights of all may be deter- mined.2 (5) Another important exception to the rule requiring the union of beneficiaries and trustees in suits relating to the trust property is the case of assignees in trust for creditors, and the assignees in bankruptcy or insolvency. These particular trustees, as well as executors and administrators, may always sue and defend alone in such actions, without joining with themselves the creditors whom they represent as cestuis que'trustent.^ Nor need the assigning debtor, bankrupt, or insolvent be made a party.* § 262. The principle which requires all persons claiming in- terests in the subject-matter concurrent with the plaintiff who instituted the suit to be made parties, is applicable in general to those having future and expectant interests, as well as to those whose interests are present, and whether they are in possession, remainder, or reversion. It is the established doctrine of equity that when a person claims an estate, either under a will or a deed by which successive estates or interests have been created, all the other persons claiming under the same will or deed, down to the one who is entitled to the first vested estate of inheritance, must be joined in the action as parties, either as co-plaintiffs or as de- fendants. To illustrate by a simple example : If, by a deed, land has been given to A. for years, with remainder to B. for life, and remainder to C. in fee, and A. is in possession as the tenant for years, B. cannot alone maintain an action against A. to restrain the commission of waste ; but C, the remainder-man in fee, must also be brought in as a partj^, naturally as a co-plaintiff, but if not, then as a defendant, so that he may be before the court represent- ing the ultimate ownership. All those entitled to intermediate estates prior to the first vested inheritance must also be joined, 1 Hawkins v. Craig, 1 B. Mon. 27; ' 1 Daniell's, p. 224 ; Spragg w. Binkes' Osborne v. Taylor, 12 Gratt. 117. But see 5 Ves. 587. Keeler v. Keeler, .3 Stockt. 458; Moore v. * De Golls v. Ward, 3 P. Wms. 311 Gleaton, 23 Ga. 142. (n.) ; Kaye v. Fosbroolce, 8 Sim. 28; Dy- 2 Morse v. Sadler, 1 Cox, 352 ; Hallett son v. Hornby, 7 De G. M. & G. 1. V. Hallett, 2 Paige, 15 ; Rowland v. Fish, 1 Paige, 20; Todd v. Sterrett, 6 J. J. Marsh. 432. 316 CIVIL KEMEDIES. SO that the entire ownership may be brought before the court, and may be bound by its decree.^ § 263. In actions to compel the specific performance of con- tracts, the immediate parties to the agreement are, as a general rule, the only necessary parties to the suit; but this includes, of course, those who by substitution become clothed with the rights or duties of the original contractors, as heirs, devisees, or some- times the personal representatives.^ If a tract of land is sold in separate parcels to different purchasers, the latter cannot unite in an action for a specific performance against the vendor, since each sale is distinct, and depends upon its own circumstances. But if there is only one contract of sale to several persons cover- ing the land in question, although it may have stipulated for different shares, the purchasers may unite ; it is not necessary that the vendees should be jointly interested in the purchase, in the legal import of that term, it is enough if they have common or concurrent interests in the subject-matter.^ If the vendee in a land contract dies, his heirs are the parties to bring an action for a specific performance ; but his administrator, when the suit is simply to recover damages.* It follows, from the general rule given above, that a mere stranger claiming an intefrest or estate under an adverse title is neither a necessary nor a proper party to the suit for a specific performance ; his rights cannot be affected by the decree made therein, and must, in fact, be determined in another and distinct proceeding.^ But a person claiming under a prior agreement is not such a mere stranger, and he is a proper party in an action brought by the vendee to comfiel a specific performance, and to determine the right to the purchase-money.^ 1 1 Daniell's, pp. 227-330 ; Story Eq. i>. V7ickens, L. R. 4 Ch. App. 101 ; Fen- Pl. § 144 ; Finch v. Finch, 2 Ves. Sen. wicli v. Bulman, L. R. 9 Eq. 165 ; Baking 492 ; j«:olineux v. Powell, 3 P. Wms. 268 v. Whimper, 26 Beav. 668 ; Morgan v. (n.); Herring u. Yoe, 1 Atk. 290; Pyn- Morgan, 2 Wheat. 290; Lord v. UnJer- cent V. Pyncent, 3 Atk. 571 ; Sohier v. dunck, 1 Sandf. Ch. 46 ; Hoover v. Don- Williams, 1 Curtis, 479. ally, 3 Hen. & Man. 316. See McCot- 2 1 Daniell's, p. 230 ; Tasker v. Small, ter v. Lawrence, 6 N. Y. Sup. Ct. 392, 3 My. & Cr. 63, 69 ; Wood v. White, 4 395, and Maire v. Garrison, 83 N. Y. My. & Cr. 460 ; Robertson v. Or. West. R. 14, 29. Co., 10 Sim. 314; Humphreys v. HoUis, 3 Owen v. Frink, 24 Cal. 171, 177. Jac. 73 ; Paterson v. Long, 5 Bear. 186 ; ' Webster v. Tibbitts, 19 Wis. 438 ; Peacock v. Penson, 11 Beav. 355 ; Petre Peters v. Jones, 35 Iowa, 512, 518. V. Duncombe, 7 Hare, 24; De Hoghton » Tasker w. Small, 3 My. & Cr. 63, 69; D. Money, L. R. 2 Ch. App. 164, 170; De Hoghton v. Money, L. R. 2 Ch. App. Bishop of Winchester v. Mid Hants R. 164, 170. Co., L. R. 5 Eq. 17 ; Aberaman Iron Co. 6 ^Vest Midland R. Co. v. Nixon, 1 H. PLAINTIFFS IN EQUITABLE ACTIONS. 317 Another person than the vendor may also be so interested in the subject-matter of the contract, that his presence or aid will be needed in order to make out a complete title ; and, when this is the case, such person may also be joined as a party to the suit for a specific performance, although not an actual party to the con- tract sought to be enforced.^ Also, when a third person has, after the making of the contract, acquired some interest in the subject-matter under the vendor, but with notice of the vendee's rights, he may be brought in as a co-defendant with the vendor in the suit for a specific performance .^ § 264. It was a well-established doctrine of equitable proced- ure, that, in suits to carry into effect and enforce the trusts of a will, the heirs-at-law must be made parties. This rule has, how- ever been greatly modified, if not actually abrogated, in England by recent statutory legislation ; and in the United States it is not often invoked because such suits are comparatively infrequent.^ Where, on the other hand, an action is brought to srt aside a will, then all the devisees are necessary parties, and the executor, unless he has renounced ; * and all the legatees residuary and other.^ § 265. The broad principle which underlies most of the fore- going special rules is, that when an action is instituted by some determinate individual for his own benefit, whom we call the plaintiff, all persons having interests or claims against the de- fendant, in relation to the subject-matter, concurrent with his, must be brought in as parties ; if they do not wish to unite as co-plaintiffs, they must be added as defendants. The connecting link is the concurrence of the interests. If this element is want- ing, the principle itself is not operative. It follows, therefore, as a general principle, — the converse of that already discussed, — & M. 176 ; Chadwick o. Maden, 9 Hare, circumstances, and is exceedingly com- 188. prehensive in its operation. 1 Wood V. White, 4 M. & C. 460, 48-3 ; ^ See, on tlie subject of the heirs being Chadwick v. Maden, 9 Hare, 188 ; Cope parties, and of the statutory changes in V. Parry, 2 Jac. & W. 538; McCotter i'. England, 1 Daniell's, pp. 231, 232 ; Story Lawrence, 6 N. Y. Sup. Ct. 392, 395 ; Eq. Pi. § 163. As to actions for tlie con- Story Eq. PI. § 205. struction of wills, see Chipman v. Mont- 2 Spence v. Hoger, 1 Coll. 22-5 ; CoIIett gomery, 63 N. Y. 221, and 1 Pomeroy's V. Hover, 1 Coll. 227; Cutis v. Thodey, Equity, § .352, n. (1). 13 Sim. 206; Leuty v. Hillas, 2 De G. & ^ Vancleave v. Beam, 2 Dana, 155; J. 110. See Carter v. Mills, 80 Mo. 432. Hunt v. Acre, 28 Ala. 580; Vanderpoel This rule, given in the text, must be ap- v. Van Valkenburgh, 6 N. Y. 190. plied under a great variety of external ^ McMaken v. McMaken, 18 Ala. 576. 318 CIVIL EEMEDIES. that when a suit is instituted by some determinate individual, whom we call the plaintiff, and there are other persons asserting claims against the defendant, even in respect to the same subject- matter, but such claims are set up under titles- antagonistic to, or inconsistent with, that of the plaintiff, these persons should not be made parties to the action either as plaintiffs or as defendants, since the indispensable element of concurrence in their interests is wanting, so that if they were joined as parties, two distinct controversies at least would be carried on in the single litiga- tion.i Among the examples of such improper union of persons whose interests are antagonistic is the case of an action to re- deem brought by an heir-at-law and a devisee under a will ; the joinder is improper, since one or the other of these parties has, of course, no right to redeem in the case supposed.^ And a person liable to account to the other plaintiffs cannot be joined as a co-plaintiff.3 This objection, based upon the inconsistency of rights and interests, does not apply, however, to causes in which a single plaintiff unites in himself two or more conflicting claims or interests.^ § 266. Because claims, titles, and interests are distinct, and, in a certain sense, independent of each other, they are not therefore necessarily antagonistic or inconsistent; and persons having such distinct claims and interests, which are not antagonistic or incon- sistent, may often be united in an action of which the object is their common benefit. In applying this principle, there is some diversity of opinion, and even conflict among the decided cases. In certain classes of actions the doctrine is well settled, and the joinder of such persons is a matter of common practice. In other classes of suits the courts have not been so unanimous ; sometimes they have yielded to the general tendency of equity, which seeks to determine all disputes concerning the same subject-matter in one litigation, and have therefore permitted the union ; at other times they have been controlled by the fact that there was no real 1 See 1 Daniell's, pp. 229, 230-233. comb ... Horton, 18 Wis. 566 ; Gates v. 2 Lord Cholraondeley v. Lord Clinton, Boomer, 17 Wis. 455 ; Crocker v. Craig, 2 Jac. & W. 1, 135 ; 4 Bligh, 1 ; s. c. T. 46 Me. 327 ; Fletcher v. Holmes, 40 Me & R. 107, 115 ; FuUiam o. McCarthy, 1 364. H. L Cases, 703 ; Saumarez v. Saumarez, 3 Jacob v. Lucas, 1 Beav. 436, 443 4 M. & C. 336 ; Robertson v. Southgate, Griffith v. Vanheythuysen, 9 Hare, 85. 6 Hare, 536; Bill v. Cureton, 2 M. & K. i Miles v. Durnford, 2 De G. M. & G 503 ; Jopp V. Wood, 2 De G. J. & S. 323 ; 641 ; Carter v. Sanders, 2 Drew, 248 Griggs V. Staplee, 2 De G. & S. 572 ; New- Foulkes v. Davies, L. E. 7 Eq. 42. PLAINTIFFS IN EQUITABLE ACTIONS. 319 legal community of interest among the parties, and have refused to allow the attempted joinder. As it will be impossible to de- duce any general rule covering all such instances, I shall first mention and illustrate those classes of causes in which the doc- trine has been established, and shall in the second place collect some examples of other classes in which there is no such unani- mity of judicial decision. The most familiar and important case of persons having distinct but not conflicting interests, and in respect of whom the rule concerning their joinder as parties is well settled, is that of creditors. There are several species of actions brought by creditors, in which the various creditors of a single debtor may all unite as co-plaintiffs. Thus, the creditors of a deceased debtor may all join in the same administration suit brought to settle his estate, and to administer its assets ; but this species of action is quite uncommon in the United States.^ Such union, however, is not necessary ; one may sue alone if he choose ; ^ and when the number is great, one may sue on behalf of all the others. § 267. The most common and important action by creditors, to which the rule may be applied, is the creditor's suit, or an action in the nature of a creditor's suit. A single judgment creditor may alone maintain an action to enforce the payment of his judgment, to reach equitable assets, to set aside fraudulent transfers by his debtor and thus let in the lien of his judgment, and for other similar relief ; and the other judgment creditors need not necessarily be joined, either as co-plaintiffs or as defend- ants. On the other hand, two or more of the judgment creditors, or all of them together, may unite in bringing such an action, or finally, one may sue on behalf of himself, and all others who are in the same position.^ Since all the creditors have the same kind of interest in the common fund — the assets of the debtor, 1 I Daniell's, p. 235; Cosby v. Wick- Bragaw, 1 C. E. Green, 213, 216 ; Egdell liSe, 7 B. Mon. 120 ; Conro v. Port Henry v. Haywood, 5 Atk. 357. See, especially. Iron Co., 12 Barb. 27; Cheshire Iron Conro i>. Port Henry Iron Co., 12 Barb. "Works V. Gay, 3 Gray, 531, 534, 535. 27, 57-60, per Willard J., for a full dis- 2 Anon., 8 Atk. 572 ; Peacock v. Monk, cussion of the subject and an exliaust- 1 Ves. 127, 131. See Hills u. Sherwood, ire citation of authorities. When the 48 Cal. 386, 392. debtor is dead, a judgment creditor may 3 Bartlett v. Drew, 57 N. Y. 587, 588, bring an action to set aside a fraudulent 589; Clarkson v. De Peyster, 3 Paige, transfer made by him. Hills t). Sherwood, 320; Parmelee v. Egan, 7 Paige, 610; 48 Cal. 386, 392. An attaching creditor Grosvenorw. Allen, 9 Paige, 74 ; Farnham merely cannot maintain the action. Weil V. Campbell, 10 Paige, 598 ; Way v. v. Lankins, 3 Neb. 384, 386. 320 CIVIL REMEDIES. and since a receiver is frequently appointed over that fund, the utmost latitude is permitted in respect to the union of different creditors as co-plaintiffs. One may maintain the action alone, or may sue on behalf of himself and of all the others similarly situated, or all may join, or any number less than all may at their election institute the action. Such an action may also be brought by a receiver of the debtor's property, appointed in proceedings supplementary to execution, and he may either sue alone, or the judgment creditors, or some of them, may join with him.^ § 268. Where an assignment has been made in trust for credit- ors, one of the creditor beneficiaries cannot maintain an action to enforce the trust, to compel an accounting by the assignee, and to procure a settlement and distribution of the trust estate. All the creditors must unite in bringing such an action, either actually or by representation ; for where the number of such creditors is great, one or more have been permitted to sue on behalf of them- selves and all the others.^ The rule thus stated in respect of creditors is simply a special case of the general doctrine appli- cable to every species of trust. In actions based upon the trust, recognizing its existence and validity, and seeking to carry out 1 See cases cited in last preceding tions see Hann v. Van Voorhis, 5 Hun, note; also, Hamlin u. Wright, 23 Wis. 425; Stewart r. Beale, 7 id. 405 ; Dewey 491 ; Gates v. Boomer, 17 Wis. 455, 458 ; v. Moyer, 9 id. 473 ; Fox o. Moyer, 54 KuflSng V. Tilton, 12 Ind. 259 ; Burton v. N. Y. 125 ; Fort Stanwix Bank v. Leggett, Anderson, Stanton's (Ky.) code, p. 34; 51 id. 552; Haines v. Hollister, 64 id. 1; Baker v. Bartol, G Cal. 483. In Hamlin Pierce v. Milwaukee Const. Co., 38 Wis. V. Wright, Paine J. said : " The question 253 ; Hardy v. Mitchell, 67 Ind. 485 ; whether the complaint is multifarious Smith v. Schulting, 14 Hun, 52 ; Green v. should be determined according to the Walkill Nat. Bank, 7 id. 63. established rules upon that subject in re- " Story Eq. PI. §§ 150, 207 ; Bain- spectto creditors' bills ; and, in respect to bridge v. Burton, 2 Beav. 539. In Harri- them, it has been determined that differ- son v. Stewardson, 2 Hare, 530, twenty entjudgment creditors may join in one creditors was held to be too small a num- suit against the judgment debtor and his ber to allow a. suit by representation, friiudulent grantees." In Gates v. Boomer, After a receiver of a national bank has Cole J. said : " Both plaintiffs have a com- been appointed, a creditor may maintain mon interest in removing the fraudulent an action to establish his demand, and conveyance, so that they can enforce their the bank and the receiver may both be respective judgments. Aside from our joined as co-defendants ; the appointment statute, we think there would have been of the receiver does not absolutely dis- no misjoinder of parties; but the provi- solve the corporation. Green v. Walkill sion of the statute [the code] is unques- Nat. Bank, 7 Hun, 63 ; Pahquioque Bank tionably broad enough to meet the case, v. First Nat. Bank, 36 Conn. 325 ; 14 Wall, since both plaintiffs have a direct and 283; Kennedy v. Gibson, 8 Wall. 506; common interest." For further illustra- Turner v. Bank of Keokuk, 26 Iowa, 262. PLAINTIFFS IN EQUITABLE ACTIONS. 321 its terms and provisions, all the persons interested must be par- ' ties ; all the beneficiaries must therefore unite in an action against the trustee brought to obtain an accounting, and a winding up and settlement of the estate, or, in technical phraseology, an action brought to administer the trust.^ While the beneficiaries as a class must all unite, either actually or through a representative plaintiff, in actions based upon the trust as existing, and brought to administer it, one person who would be a beneficiary may, without joining any others, maintain a suit which is based upon a denial of the trust and seeks to overthrow it, and to set aside the instruments which created it, and the acts of the trustee done under it. Thus, for example, any judgment creditor may bring an action in his own name to set aside an assignment in trust for himself and the other creditors.^ § 269. From the cases of creditors and cestuis que trustent, in respect of whom the rule is well settled, I now pass to other classes of persons having distinct, though not conflicting, interests and claims, and I collect a number of decisions which show the tendency of the courts in dealing with them. Owners of entirely distinct and separate parcels of land, althougb no community of right or interest existed among them, have been permitted to unite in equitable actions based upon their individual separate property, simply because the wrong to be remedied or prevented 1 De la Vergne v. Evertson, 1 Paige, mitted by a special statute, in Minnesota, 181 ; Greene v. Sisson, 2 Curtis, 171 ; Haw- to maintain an action for an account, and kins V. Craig, 1 B. Mon. 27 ; Elam v. to enforce the trust, and to remove tVie Garrard, 25 Ga. 857 ; High v. Worley, trustee. This statute is general in its 32 Ala. 709 ; Gould c. Hayes, 19 Ala. terms, and applies to all trustees and 438 ; Keeler v. Keeler, 3 Stockt. 458 ; trusts. " Upon petition or bill of any Case V. Carroll, 35 N. Y. 385 ; Sortore person interested in the execution of an V. Scott, 6 Lans. 271, 275 ; Munch v. express trust, the Court of Chancery may Cockerell, 8 Sim. 219, 231. See French remove any trustee who shall have vio- V. Gifford, 30 Iowa, 148, 158, 159. lated, or threatened to violate, his trust." 2 In Hubbell v. Medbury, 53 N. Y. 98, Compiled Stat, of Minn., p. 384, § 26 ; where an assignment had been made for Goncelier v. Foret, 4 Minn. 13. See the benefit of creditors, a cestui que trust French v. Gifford, 30 Iowa, 148, 158, 159. under it and the assignor brought an ac- In the case of a charitable trust, any tion to set aside a wrongful purchase of beneficiary having an interest in the use the trust property by the assignee ; the or in the subject of the gift, has an un- action was sustained, and it was held that questionable right to institute a proceed- a substituted trustee as the plaintiff was ing in equity for the purpose of securing unnecessary. When a trustee is guilty of a faithful execution of the beneficent ob- misconduct in his trust, by misapplying ject of the founder of the charity. Bap- the assets, or converting the same to his tist Church v. Presbyterian Church, 18 own use, a single cestui que trust is per- B. Mon. 635, 641. 21 322 CIVIL REMEDIES. was a single act, and affected all of them and all of their lands in the same manner. Thus, owners of separate tenements have been allowed to join in an action brought to restrain and remove a nuisance which was common to all.^ Two or more owners of separate lots assessed for a local street improvement, when the assessment is claimed for the same reason to be invalid as to all, may unite in an action to restrain the collection ; and when the number of such owners is great, one may sue as a representative for all the others.^ Also a number of proprietors of adjacent and separate lots fronting on a street through which a railroad was laid out, were permitted to join in a suit for the purpose of preventing the company from constructing its track in such a manner as to interfere with access to all of their several lots alike.^ The ques- tion as to the joinder of plaintiffs who own distinct parcels of land, or who are clothed with distinct primary rights of the same kind, which are all interfered with and affected in the same man- ner bj' a common wrong, has frequently arisen in actions brought 1 Peck V. Elder, 3 Sandf. 126. But six owners of distinct tracts of land through which a stream ran were not permitted to join in an action to restrain another riparian owner from diverting tlie water. Scliultz v. Winter, 7 Nev. 130. See, per contra, Foot v. Bronson, 4 Lans. 47, 5i, in which such a union of different owners was held proper; citing Reid v. Gifford, Hopk. 416; Murray v. Hay, 1 Barb. Ch. 59 ; Brady v. VTeeks, 8 Barb. 157. Such suit may be maintained by separate owners of distinct parcels of land to restrain or remove a nuisance. Pette- bone V. Hamilton, 40 Wis. 402; Williams V. Smith, 22 id. 594 ; Barnes v. Racine, 4 id. 454. See also Lutes v. Briggs, 5 Hun, 67 (illegal assessments). For a more full discussion of this subject, see 1 Pomeroy's Equity, §§ 245, 257, 258, 259, 260, 273, and cases cited. 2 Upington v. Oviatt, 24 Ohio St. 232, 247 ; Glenn v. Waddell, 23 Ohio St. 605. 8 Tate V. Ohio & Miss. R. R., 10 Ind. 174. The company had raised an em- ■bantment and trestle-work in such a man- ner as to ^ut ofE access to the lots owned ■by the eleTen plairttiffs. The prayer was that the company 'be compelled to change 'DT to removeits structure. On demurrer fby the defendant; the court, per Davison J., said : " The only question is, had the plaintiffs a right to join in the action ? " Quoting the provisions of the code in re- lation to parties, he declares that they substantially re-enact the equity rule, and adds : " All who are united in interest must join in the suit, unless they are so numerous as to render it impracticable to bring them all before the court ; while those who have only a common or gen- eral interest in the controversy may, one or more of them, institute an action. Tliis, however, must not be understood as allowing in all cases two or more per- sons having separate causes of action against the same defendant, though aris- ing out of the same transaction, to unite and pursue their remedies in one action. Several plaintiffs in one complaint cannot demand several matters of relief which are plainly distinct and unconnected. But when one general right is claimed, when there is one common interest among the plaintiffs centring in the point in issue in the cause; the objection of improper par- ties cannot be maintained. . . . These plaintiffs, though not united in interest with each other, claim one general right to be relieved from a nuisance which alike affects all of them." PLAINTIFFS m EQUITABLE ACTIONS. 323 by taxpayers and freeholders to prevent or set aside some pro- ceeding done under the forms of public authority, and which is designed to create and impose a public burden, such as a tax for special objects, an assessment for some local improvement, a municipal bonding in aid of some quasi public enterprise, and numerous other like proceedings which create a public or muni- cipal debt. Such actions are permitted, and are freely used in most of the States, although not allowed in New York and a few others. Where suits of this character are sustained by the courts, the question has arisen, whether two or more taxpayers having distinct freeholds, or distinct pieces of property subject to the bur- den, and who have no connection except in the common wrong and in the like relief demanded by all, may unite in the action, or whether one may sue on behalf of all, or finally, whether each must bring a separate suit to free his own property from the wrongful incumbrance. It would seem, upon the principle of the decision last quoted, that such a joinder was not only proper, but was in every way expedient ; but the cases have not been unanimous upon the point, and some of them have distinctly pro- nounced against a joint proceeding. In Wisconsin, where a num- ber of freeholders, owning distinct lots of land, and having no connection except that they were all residents of the municipality, and whose personal property had been levied upon for the tax, and advertised for sale, united in an action to set aside the entire proceedings of the local authorities, and to procure the tax and all steps taken in relation to it to be declared void, and to restrain the sale of their property, it was held that these plaintiffs could not join in a suit merely to prevent the sale of their property because their interests were entirely several ; but that they could unite in an action to avoid and set aside the proceedings of the municipal authorities, and that the court, having thus acquired jurisdiction, could go on and administer complete relief.^ In another case, two plaintiffs owning distinct lots in severalty, and suing on behalf of all other taxpayers of the city, brought an action to set aside a local assessment and tax made and levied by the city authorities, and to restrain the sale of their lots. It was held that they could not maintain the joint action. The court said, if the tax was illegal there was an apparent cloud upon each lot, and each plaintiff was interested only in removing this cloud 1 Peck V. School District No. 4, 21 Wis. 516. 324 CIVIL EEMEDIES. from his own land ; each and all might be interested in the legal question involved in the suit ; for if one had a right to remove the cloud and to enjoin the assessment as illegal, for the same reasons and upon the same evidence, each of the others might obtain relief: but there was no such common pecuniary interest as authorized them to unite in one suit and obtain the relief de- manded ; each could'sue alone, and the others were not necessary parties; this was not an action respecting a common fund, nor to assert a common right, nor to restrain acts injurious to property in which all the plaintiffs had a common interest.^ In Ohio, two or more owners of separate lots assessed for a local improve- ment may unite in an action to restrain the enforcement and col- lection, when the tax is claimed for the same reason to be invalid as to all. 2 In Kansas a distinction is made depending upon the nature of the tax itself. If the tax is wholly illegal, that is, illegal as applied to all persons and property, — as, for example, a tax to pay the interest on illegal bonds, — any number of tax- payers may unite in the action.^ If, however, the tax is valid as a tax, — as, for example, the ordinary county or State tax, — and becomes illegal for some cause only as it applies to certain per- sons or property, then each person severally interested as the owner of distinct and separate lots of land must sue alone ; there can be no joinder by taxpayers who have no common property.* In Iowa it has been recently held that taxpayers owning separate property cannot unite, nor can one sue on behalf of all others similarly situated, in an action to restrain the enforcement and collection of an illegal tax, but each must bring an action for himself.^ § 270. A few other miscellaneous cases of distinct interests may be mentioned. When several persons have simultaneous but entirely separate mechanic's liens upon the premises of the same person for work done and materials furnished by them, they cannot 1 Barnes v. City of Beloit, 19 Wis. 93, 326 ; Gilmore v. Norton, 10 Kans. 491 ; 94, per Downer J. It is impossible to Gilmore v. Fox, 10 Kans. 509. reconcile the reasoning in these two cases, 4 Hudson v. Commissioners, &e., 12 nor the conclusions which they reach. Kans. 140, 146, 147. See also Newcomb v. Horton, 18 Wis. 6 pieming v. Mershon, 36 Iowa, 413. 566, which maintains the same doctrine 416-420. The question was carefully ex- as Barnes v. Beloit. amined with a reference to numerous de- Upmgton V. viatt, 24 Ohio St. 232, cisions of equity courts. Cole J. dissented 247 ; Glen v. Waddell, 23 Ohio St. 605. in a very able opinion containing a review 3 Bridge Co. v. Wyandotte, 10 Kans. of all the authorities, pp. 421-427. WHO MAY BE JOINED AS DEFENDANTS. 325 all, nor can any two or more of them, unite in an action brought to enforce and foreclose such Uens under the statute.^ Under the construction given to statutes of Ohio, making the shareholders in corporations liable in certain contingencies to the creditors of the companies, it is held that a suit should be brought by or for all the creditors who come within the conditions ; that is, all these creditors should actually be made plaintiffs, or the action should be in the name of one for the benefit of all.^ SECTION SEVENTH. WHO MAY BE JOINED AS DEFENDANTS. § 271. The sections of the various State codes and practice acts which prescribe rules for the proper selection of defendants are as follows; one of them is found in all the statutes, and expresses the doctrine in its general form. " Any person may be made a defendant who has or claims an interest in the contro- versy adverse to the plaintiff, or who is a necessary party to a complete determination, or settlement of the questions involved therein." ^ To this general declaration there is added in a few States the following particular clause : " And in an action to recover the 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."* The codes also all contain the following provisions, 1 Harsh D.Morgan, IKans. 293, 298. The 2 Umsted v. Buekirk, 17 Ohio St. following are further illustrations of the 113. same general doctrine : actions by a stock- ' New York, § 118 (447, 1503, 1598) ; holder or the stockholders against the cor- Ohio, § 35 ; Indiana, § 18 ; Kansas, § 36 ; poration or its managing ofiScers, Osgood California, § 379; Missouri, art. 1, § 6 ; !7. Maguire, 61 N.Y. 524; Young U.Drake, Wisconsin, ch. 123, § 19; Florida, § 69; 8 Hun, 61 : Dousman v. Wise, &c. Min. Iowa, § 2547 ; Nebraska, § 41 ; Kentuckj-, Co., 40 Wis. 418 ; Rogers o. Lafayette § 35 ; South Carolina, § 141 ; North Caro- Agric. Works, 52 Ind. 296, and numer- lina, § 61 ; Nevada, § 13 ; Oregon, § 380, ous cases cited ; Board of Comra'rs v. but applied only to equitable actions ; Lafayette, &c. R. R., 50 Ind. 85 ; action Dacota, § 71 ; Washington, § 14 ; Idaho, to remove a cloud, Pier v. Fond du Lac, § 13; Wyoming, § 41 ; Montana, § 13. 38 Wis. 470; action by one firm against ^ New York, § 118 (447, 1503, 1598) ; another firm where there is a common South Carolina, § 141 ; North Carolina, partner, Ford v. Ind. Dist. of Stuart, 46 § 61 ; California, § 379. Iowa, 294. 326 CIVIL KEMEDIES. either embraced in a single section or separated into two, namely : " Of the parties to the action, those 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 a defendant, the reason thereof being stated in the complaint [or petition]. [And] When the question is one of common or general interest of many persons, 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." ^ Finally, a section is found in every code particularly referring to the case of persons severally liable on the same instrument, of which the ordinary form is as follows : " Persons severally [and immediately, Indiana] liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may all or any of them be included in the same action at the option of the plaintiff."^ § 272. The subject-matter of the present section is the inter- pretation of the general clauses of the statute quoted above, — the doctrine of parties defendant in its general scope and import, — the general rules which prescribe the choice and direct the 1 These provisions are thus found as a vision in Nevada, Idaho, Wyoming, and single section in New York, § 119 (448) ; Montana is also the same as that in Cali- Indiana,§19; California, §382; Wisconsin, fornia. For the corresponding sections ch. 123, § 20 ; Florida, § 70 ; South Caro- In the codes of Kentucky, Iowa, and Mis- lina, § 142 ; North Carolina, § 62 ; Nevada, souri, see infra, § 403. In these codes the § 14 ; Oregon, § 381 ; Dacota, § 72 ; change in the common-law doctrine is Washington, §§ 14, 15;Idalio, § 14; carried to a much greater length ; the dis- Wyoming, § 42; Montana, § 14. In the tinctions between joint, joint and several, following States they are separated into and several liabilities are utterly abro- two sections, corresponding to the two gated. The same radical change is made paragraphs of the text : Ohio, §§ 36, 37 ; in North Carolina. " § 63 a. In all cases Kansas, §§ 37, 38 ; Iowa, §§ 2548, 2549 ; of joint contract of copartners in trade or Nebraska, §§ 42, 43 ; Kentucky, §§ 36, others, suits may be brought and prose- 37. The Missouri code contains only the cuted on the same against all or any num- first paragraph, as art. 1, § 6, the same as ber of the persons making such contract." § 36 of the Ohio code. In Nevada, § 14, and Wyoming, § 42, it is 2 New York, § 120 (454); Kansas, provided that "joint tenants, tenants in § 39; Minnesota, § 35; Wisconsin, ch. common, or co/?artncj-s, or any number less 123, § 21 ; Nebraska, § 44; Florida, § 71 ; than all, may jointly or severally" sue Ohio, § 38 ; Indiana, § 20 ; Oregon, § 36 ; and be sued. A similar clause is found in Soutli Carolina, § 143 ; North Carolina, the California code, § 384, except that § 63 ; Nevada, § 15 ; Dacota, § 73 ; Wash- " coparceners " is substituted for " copart- ington, § 16 ; Idaho, § 15 ; Wyoming, ners." Placing " copartners " in the same § 43 ; Montana, § 15. In California, § 383, position as " joint tenants " and " tenants is the same, adding, " and sureties on the in common," is a very strange provision, same or separate instruments," after the and was doubtless an oversight. words " promissory notes." The pro- COMMON-LAW RULES AS TO DEFENDANTS. 327 joinder of defendants in civil actions of all kinds, whether legal or equitable. The special cases described in the other clauses of the statute, — namely, that of one person suing or being sued as the representative of others, and that of persons severally liable upon the same instrument, — will be separately discussed in the two sections which follow the present one. The doctrine of parties, and especially of parties defendant, in its entirety, is in- timately connected with that of judgments, and cannot be ex- haustively treated, without a discussion also of the latter topic. Many important decisions, and even certain practical rules which might naturally have been introduced in this connection, are, therefore, postponed for the present, and will appear in a subse- quent chapter. Joint and several rights and liabilities involve both the questions of joint and several judgments, and of the union and severance of parties plaintiff and defendant. It would only produce confusion, however, if we should anticipate the regular order of the subject-matter, and should attempt to combine in a single discussion all the particular topics which enter into the theory of joint and of several liabilities. In carry- ing out the design of the present section, I shall follow the general plan adopted in the one last preceding, and shall (1) state in a concise manner the established rules of the common law, concerning the selection and joinder of defendants in legal actions ; (2) determine the general principles introduced by the reform legislation, and the true theory of its interpretation ; and (3) exhibit the application of these principles made by the decided cases, explain the changes which have been made in the former system, and ascertain the practical rules as to parties defendant as they now exist. The Common-Law Doctrines and Mules. § 273. Whenever any liability rests upon two or more persons as the consequence of the same act or event, the common law re- garded such liability in general as either joint, joint and several, or several. This division had originally a twofold relation ; for it affected both the external forms and modes of enforcing the liability by actions at law, and also the essential nature of the liability independent of any such mere methods of enforcement. In other words, these three classes differed from each other in 328 CIVIL EEMEDIES. respect to the joining or the not joining of the persons liable in a single action. This was doubtless the most important element of difference among them ; it remained unchanged while the common-law procedure existed ; and the principal question to be determined by the present discussion is, whether it has been changed by the provisions of the new American system. But, in addition to this element of difference, which related solely to the mode of enforcement, there was another still which related to the existence and duration — that is, to the very being — of the liability. Joint liability was distinguished from the other two classes in this, that, at the death of one of the persons upon whom the joint duty rested, such obligation absolutely ended as to his estate and representatives, and became entirely concen- trated, as it were, upon the survivors. As one after another died, the same process continued, until the whole liabilitj' rested, as a sole obligation, upon the last survivor of all, and, upon his death, passed to his estate and personal representatives. This doctrine of survivorship prevailed at the common law, and, at an early day, before the innovations made by equity, it was the ordinary practical rule controlling the relations between debtor and creditor ; so that if one of two joint debtors died, the creditor had absolutely no recourse of any kind except against the person and property of the survivor, the estate of the deceased debtor being freed from all claim whatsoever. Even after relief became possible from the courts of equity, the doctrine continued to pre- vail under exactly the same form in courts of law and iu legal actions, so that such actions could only be maintained against the survivors ; and if the creditor was restricted to the law courts and to the modes of remedy which they furnished, the ancient rule applied to him with full force and effect. The relief granted by equity, however, had long rendered this rule a mere matter of form. The primitive doctrine had long been practically aban- doned ; the liability was not, in fact, confined to the survivor of the joint debtors ; the estate of the deceased might be held re- sponsible ; only the creditor must pursue his remedy in a court of equity instead of a court of law. This result was natural and proper enough as long as two separate species of tribunals and two distinct systems of procedure were retained ; but that the same result should continue after the jurisdictions had been consoli- dated into one, and after all distinctions between actions at law COMMON-LAW EULES AS TO DEFENDANTS. 329 and suits in equity had been abolished, and one mode had been established for the pursuit of all civil remedies, is, beyond the power of expression, absurd. § 274. Such being the two generic elements of distinction be- tween the three classes of liabilities established by the common law, it is of the utmost importance to determine the marks which distinguish one from the other, and to ascertain in this manner what liabilities are joint, what joint and several, and what several. Liability may arise either from contract, or from some act which is not a contract, and to which the name tort has been given by English and American writers and judges. Little difficulty exists in reference to liabilities arising from torts ; it will be seen in the sequel that they are not, in general, joint in their nature. In respect to liabilities springing from contract, the difficulty is much greater, as there is no such simple and comprehensive rule. The discussion found in the preceding section,^ concerning joint and several rights, applies as well in its general features to the subject of liabilities ; the same essential principles are controlling in either case. While, however, the nature of the interest, rather than the form of the promise or obligation, is the ultimate criterion by which to ascertain whether the right is several or joint, the form of the promise or obligation alone determines the character of the liability when the contract is express, and the intention of the parties gathered from all the surrounding circumstances, when the contract is implied. § 275. Applying this test, the following are the general prin- ciples, stated in a very concise manner, which define the nature of liabilities arising from contract, and separate them into the three groups or classes already mentioned. Whenever a liability resting upon two or more persons is created by contract, the pre- sumption is that such liability is joint, — that is to say, it is joint, unless express words and terms of the contract make it several, or joint and several. The tendency or inclination of the law is in favor of joint liabilities ; no express language is necessary to produce that quality ; but, on the other hand, some special terms or words are requisite to bring the liability into either of the two other classes.^ An ancient work of high authority says : " If two, three, or more bind themselves in an obligation thus, obligamus 1 See supra, §§ 185, 186. ' 1 Parsons on Cont. p. 11, and cases cited. 330 CIVIL REMEDIES. nos [that is, we bind ourselves, we undertake, we promise], and say no more, the obligation is, and shall be, taken to be joint only, and not several." ^ If two or more contract with the same person to do or to forbear from one and the same thing, their liability is joint, in the absence of any special words to show that a different one is intended. This rule is emphatically true in cases of implied liabiKties.2 Whether the Uability is joint, joint and several, or several, depends upon the terms of the contract, if express ; upon the intention of the parties gathered from the circumstances, if implied.^ § 276. A joint and several liability generally arises from express language of the agreement, such as, " we jointly and severally promise." If, however, a promise is written in the singular number, but is actually made by two or more as the obligors or promisors, their liability is joint and several ; as, for example, a promissory note in the form, " I promise to pay," &c., but signed by several persons as the makers.* This particular species of liability seems to demand express language of some sort for its creation ; it is never found as a feature of implied contracts, un- less, perhaps, in those instances where the injured party may, at his election, regard the wrong done him as a breach of implied contract, or as a tort; but in these instances it will be found that the fundamental element of the liability is tort, and not con- tract. Having determined into which of the three classes a given liability falls by the application of the foregoing principles, we are next to consider the common-law rules which control the union or severance of tire parties thereto as defendants in actions at law. I shall consider separately actions ex contractu and actions ex delicto. § 277. I. Actions ex contractu, or those in which the liability arises from contract. When the liability is joint, all the persons upon whom it rests must be united as defendants in an action brought upon the contract. This rule is general, and applies to undertakings, obligations, and promises of all possible descrip- 1 Sheppard's Touchstone, p. 375. See * Sayor v. Clayton, 1 Lutw. 695, 697, Ehle V. Purdy, 6 Wend. 629. per Powell J. ; Van Alstynev. Van Slyck, 2 1 Ch. PI. (Springfield ed., 1840) p. 10 Barb. 383; Hemmenway v. Stone, 7 41. Mass. 58. But see, for a peculiar case, in 3 Peckham o. North Parish, 16 Pick, which, from the special provisions of the 274, 283, per Wilde J. ; 1 Parsons on contract, this rule was not applied. Slater Cont. p. 11. V. Magraw, 12 Gill & Johns. 265. COMMON-LAW EULKS AS TO DEFENDANTS. 331 tions.i There are, however, two apparent, if not real, exceptions. Dormant partners need not be made defendants in an action against the firm, although of course they may be joined.^ Also, when infants or married women have in form contracted jointly with persons sui juris, their names should be omitted as defend- ants in an action upon the contract, and the suit should be brought against the parties alone who were able to contract.^ The last rule in relation to married women has been abrogated in all those States which now permit wives to engage in business and to bind themselves by contract. The modern legislation on this subject will be stated, and its results explained, in a subse- quent portion of the present section.* When the liability is a several one, each of the obligors or promisors, or persons upon whom the obligation rests, must be sued in a separate and distinct action.^ Finally, when the liability is joint and several, the creditor has a choice of two modes : he may treat the liability as a joint one, and sue all the parties subject to it in a single action, or he may treat it as a several one, and sue each of the parties subject to it in a separate action ; he has no other alternative, and cannot proceed against a portion more than one but less than all.^ § 278. The consequences of a violation of these various rules were very serious. The error might consist either in a misjoinder — the uniting too many parties, or in a nonjoinder — the uniting too few parties ; they will be considered separately. Indepen- dently of any statute authorizing a suit against two or more per- sons not jointly liable,^ a legal action, brought against two or more defendants, necessarily implied, at the common law, that the per- sons thus sued were jointly liable, or at least that, their liability being joint and several, the plaintiff had elected to treat it as a joint one. In an action upon contract against two or more de- fendants, it must appear, therefore, in the plaintiff's pleadings, 11 Ch. PI. p. 42, and cases cited; Wras. Saund. 291 e, 291/ n. (4) ; Eccles- 1 Wms. Saund. 153, n. (1) ; lb. 291 b, ton v. CUpsham, 1 Wms. Saund. 153, n. (4). n. (1) ; Streatfield v. Halliday, 3 T. E. 2 1 Ch. PI. p. 43, and cases cited. 782. 8 Ibid. "^ As, for example, the statute permit- * See infra, §§ 818 et seq. ting the maker and indorsers of a prora- 6 1 Ch. PI. p. 43. issory note, and the drawer, acceptor, and 8 1 Ch. PI. p. 43 ; 1 Parsons on Cont. indorsers of a bill of exchange to be p. 12 ; Bac. Abr. Obligation, D. 4 ; 2 Vin. joined as defendants. Abr. 68, pi. 7; Cabell ;;. Vaughan, 1 332 CIVIL REMEDIES. that the contract is a joint one, and this fact must also be proved at the trial. If too many persons have been made defendants, and this mistake appears upon the face of the pleading, the de- fendants may either demur, move in arrest of judgment, or have a reversal on a writ of error ; if the mistake does not appear on the pleadings, but the plaintiff fails to prove the joint undertak- ing or promise as alleged, he will be nonsuited at the trial.^ This rule was applied to all actions that were brought upon a contract, whatever might be the form of the action ; but it was not applied if the cause of action was really and primarily a tort, and the plaintiff had an election to treat it as the breach of an implied contract, — as, for example, in an action on the case against common carriers.^ The general effect of a misjoinder, as above stated, followed, at the common law, even in the case of a married woman or an infant being made a co-defendant, who could not in law make a binding contract. Although all the defendants may have physically entered into the agreement, yet as the in- fant or married woman had no legal capacity to make it effective, and as to them it was either void or voidable, their being made parties was a case of misjoinder, and the plaintiff thereby in- curred the penalty of nonsuit. Under the circumstances thus described, the proper mode for the plaintiff to pursue was to omit the married woman or the infant, and to sue only the other parties. This particular rule, however, had not been followed in all the States, even prior to the introduction of the new system ; in New York, and in several other commonwealths, the plaintiff, if he had made a married woman or an infant a party defendant, could discontinue as to such person, and could proceed with his action against the other defendants.^ If one defendant should be discharged by operation of law after the action was commenced, as by a discharge in bankruptcy, &c., the plaintiff could discontinue as to him, and the suit would go on as to the others.^ § 279. Nonjoinder. The consequences of a nonjoinder of all the persons who should have been made defendants were by no 1 1 Ch. PI. p. 44, and cases cited. duty to the public, and a breach of this 2 Ibid. This well illustrates the nicety duty was a tort, although the plaintiff — verbal nicety — of distinctions often might, if he chose, bring assumpsit, made by the ancient common-law judges. » 1 Ch. PI., p. 45, and cases cited. The ground of the action against a com- ' Ibid. p. 46. mon carrier was primarily his general COMMON-LAW KULES AS TO DEFENDANTS. 333 means so serious. Tlie objection to the nonjoinder of defendants liable to be sued jointly upon contract, or as sharers in the profits of real estate, could only be taken advantage of by a plea in abatement, which should state the names and residences of the parties said to be omitted. In default of this mode of presenting the defence, the objection was entirely waived.^ § 280. If one of the obligors or promisors in a joint contract dies, the liability at the common law rests upon the survivors only ; none passes to the estate of the deceased. An action at law can therefore be maintained only against the survivors or the survivor. When the last survivor dies, his personal representa- tives are the only possible defendants in a legal action.^ If the contract is joint and several, death does not produce such an entire effect ; the personal representatives of the deceased party may be sued separatel}^ but not jointly with the survivors. A joinder of these parties is not permitted, because against the repre- sentatives the judgment must be de bonis testatoris, while against the survivors it must be de bonis propriis, and the common law does not tolerate a double judgment in one action.^ § 281. II. Actions ex delicto, or those inwhich the liability arises from a tort. The general doctrine is that the liability arising from torts committed by two or more is joint and several in its nature, or, to be accurate, it resembles a joint and several liability. The exceptions are few. Certain personal torts are of such a nature that they cannot be committed by two persons jointly ; although two persons might commit the same kind of tort at the same exact time, upon the same party, they would not commit the one identical tort. If many persons should unite in an assault and battery, there would be but one assault and battery, notwithstanding the niimber of the wrong-doers; but if two should utter the same slanderous words, even at the same instant of time, there would be two slanders, one done by each. Certain torts, few in number, are therefore, from their nature, essentially several. In a few particular instances, torts having reference to real estate are essentially joint. In pursuance of the general rule, as given above, if the tort is of such a nature that it may be 1 Ibid. p. 46. p. 29; Towers W.Moore, 2 Vern. 99. This 2 1 Ch. PI. p. 50 ; Bac. Abr. Obliga- reason given for the common-law rule is tion, D. 4; Yorks u. Peck, 14 Barb. 644; merely verbal. There is, of course, no Foster v. Hooper, 2 Mass. 572. actual difficulty in the way of such a divi- 8 1 Ch. PI. p. 50; 1 Parsons on Cont, sion in the judgment. 334 CIVIL REMEDIES. committed by two or more persons in combination, the injured party may bring an action against all the wrongdoers, against any number of them, or against one of them,'';or may bring a sep- arate action against each one, or against any part of the whole. ^ The liability is much broader, therefore, than one which is simply joint and several. If, in contemplation of law, the single tort cannot be committed by two or more together, and can only be a different tort by each, a separate action must be brought against each wrongdoer.^ When tenants in common, or joint tenants of land, are liable in an action of tort for anything respecting the land, they must all be made defendants ; and if one only is sued, he may plead the nonjoinder of the others in abatement.^ If two or more persons are sued jointly for trespass or conversion, a joint taking must be proved.* § 282. When persons are sued jointly for a tort which cannot be joint, they may demur ; or, if a verdict has been given against all, the judgment may be arrested or reversed on error. But the plaintiff may have a verdict against one, and discontinue as to the other.* In all other cases where several persons may be sued jointly for a tort, the misjoinder of defendants in an action ex delicto does not defeat the recovery, for a verdict may be given against some and in favor of the others. There can, of course, be no objection for a nonjoinder in such cases, for the plaintiff may sue as many of the wrong-doers as he pleases." The last rule applies, however, to torts only which are unconnected with, contract. If an action in form for a tort is really based upon the non-performance of a contract, the rules as to actions on con- tract control, for the plaintiff cannot change the rules of law as to the liabilitjr of defendants by merely changing the form or kind of action which he brings.^ In actions of tort against common carriers and innkeepers, the general rule before stated is strictly enforced, for their liability is primarily founded upon their general common-law duty, and not upon the contract made with the ship- ' 1 Ch. PI. p. 85, and cases cited ; Bae. tions in General, C. ; 2 Wms. Saund. Abr. Actions in General, C. ; 2 Wms. 117 6, (n.). Saund. 117 a. 6 i Cli. PI. p. 86. A joint action is 2 Ibid. ; Tliomas v. Rumsey, 6 Johns, not possible against two separate owners 32. of dogs which have killed the plaintiffs' » 1 Ch. PI. p. 87; Bac. Abr. Joint sheep. Van Steenburgh a. Tobias, 17 Ten., K. Wend. 562 ; Rnssell v. Tomlinson, 2 Conn. ♦ 1 Ch. PI. p. 86, and cases cited. 206 ; Adams v. Hall, 2 Vt. 9. s 1 Ch. PI. p. 86 ; Bac. Abr. Ac- ^ 1 Ch. PI. p. 87, and cases cited. COMMON-LAW RULES AS TO DEFENDANTS. 335 per or the guest. If sued, therefore, in an action for negligent loss or injury to goods, they cannot object on account of any non- joinder ; but if sued in an action founded upon their implied or express contract to carry or keep the goods safely, such an objection would be available.^ The theory is, that the liability of the common carrier, or of the innkeeper, does not arise from contract, but the plaintiff may elect to proceed upon the con- tract ; in the other cases, the primary liability does spring from contract, but the plaintiff may elect to sue on the tort. § 283. III. Actions against husband and wife. The following are the common-law rules in respect to actions against the hus- band and wife, or the husband alone, in relation to claims ori- ginating from some act or default of the wife. The wife could under no circumstances be sued alone at law.'-' When a woman, liable upon a contract, marries, the husband and wife must during the marriage be sued jointly, even though he has expressl}' prom- ised to pay the debt or to perform the contract.^ If a lease was made b}' the wife when single, and rent thereon falls due after the marriage, or if any other contract so made bj^ her is broken, so that a right of action arises after the marriage, the action may be either brought against both or against the husband alone.* The common law did not permit the wife to create any liability by her own contract during the,marriage ; any contract which she could enter into so that it would be binding at law would necessarily be the contract of her husband, made by her as his agent, and he alone would be liable to an action thereon. If the wife had committed any torts while single, or if she committed any during the marriage, the action in respect of them must be against her- self and her husband jointly ; * except in the case where, the wrongful act being done in his presence and by his direction, she was regarded as acting under compulsion, and free from liability, and the action could only be brought against him.^ 1 Ibid. ' 1 Ch. PI., p. 92 ; Bac. Abr., Baron 2 1 Ch. PI. p. 57, and cases cited; Com. and Feme, L. ; Com. Dig., Baron and Dig. Plead. 2 A. 1. Feme, Y. ; Co. Litt. 361*6. 3 Ibid. ; Bac. Abr. Baron and Feme, L. " Cassin v. Delany, 38 N. Y. 178. * 1 Ch. PI. p. 58, and cases cited. d36 CIVIL REMEDIES. The Q-eneral Principles of the Reformed Procedure in Reference to Parties Defendant ; the True Theory of Interpretation. § 284. The foregoing are the doctrines and rules as to parties defendant in legal actions, which were firmly established as part of the common law prior to any statutory change, and especially prior to the great change introduced by the codes which inaugu- rated the reformed American procedure in many of the States. It should be remembered that this statement relates solely to actions at law, and does not apply to suits prosecuted in tribunals having an equitable jurisdiction and following equitable methods. The practical question which now presents itself, and which I shall attempt to answer, is : How far have these common-law doctrines and rules as to parties defendant in legal actions been retained, and how far entirely abrogated or partially modified, in judicial proceedings of the same nature, by the provisions of the new system ? This question assumes that some actions are still legal in their nature, and some are equitable, although the forms of all actions, and the distinctions between them, have been abolished. This subject has been sufficiently discussed in the preceding chap- ter. It is universally conceded that in all actions which are equitable in their niature, that is, which are brought upon an equitable cause of action and seek to obtain an equitable remedy, the doctrines of equity as to parties are as fully controlling now as they were when the jurisdiction of equity was separate and distinct from that of law. The only possible occasion for doubt, therefore, exists in relation to actions which, prior to the reform, would have been " actions at law," and which now may perhaps be generically termed "legal actions," because they are based upon a legal right and seek to obtain a legal remedy. What, if any, and how great changes in these ancient rules of the common law as to parties defendant, have the provisions of the various codes recited at the commencement of this section, made in such actions? Do these general clauses embrace, and in their full extent apply to, such actions, or are they limited in their oper- ation to those that are equitable in their nature ? The ancient rules relating to defendants, which have been briefly stated above, are certainly left in active operation at the present time, and now as well as formerly determine the selection of the par- GENERAL DOCTRINES AS TO DEFENDANTS. 337 ties ill legal suits, except so far as they may have been abrogated or modified by the legislation referred to. In other words, these rules were originally the sole guides in the construction of a legal action ; so far as they have been replaced by others, they no longer exist ; but so far as they have not been interfered with and changed, they are left as efficacious as though no attempt had been made to reform the procedure. The question is thus reduced to this shape : To how great an extent have these rules been abolished or altered, and to how great an extent are they unchanged ? § 285. In discussing and answering this question, I shall follow the order adopted in the last preceding section (sixth), while pursuing a similar inquiry in respect to parties plaintiff. I shall (1) ascertain and disclose the general intent and object of the legislative enactment, and shall (2) apply the results thus reached to particular cases and rules, as far as they have been determined and established by judicial decision. In this latter branch of the discussion I shall consider in order, (1) legal actions to recover possession of land, or against the owners of land ; (2) legal actions to recover possession of chattels, or against the owners of chat- tels ; (3) legal actions upon contracts; (4) legal actions for torts ; (5) legal actions, generally allowed by statute, in refer- ence to the settlement of deceased persons' estates ; (6) some special legal actions not falling within either of the preceding heads ; (7) actions against husband and wife, or either of them, as affected by the marriage relation ; and (8) equitable actions. § 286. What is the general intent and object of the legislation in reference to parties defendant, taken as a whole ? What prin- ciple of construction should be adopted in arriving at the prac- tical meaning and effect of the various provisions of the State codes already quoted ? These questions, which are certainly fundamental, were thoroughly discussed in the last section, and a reiteration of the reasoning there presented would be entirely useless. It cannot be doubted that the legislature proposed to itself the same object, and was actuated by the same intent, in the rules which it has prescribed for defendants as in those which it has adopted for plaintiffs. I dwell upon the fact, which is apparent upon the most cursory reading, that the clauses con- cerning defendants are more full and detailed, and more clearly 22 338 CIVIL REMEDIES. set forth the equitable doctrines, than those concerning plaintiffs. This fact is very obvious when we refer to the subsequent sec- tions of the codes defining the forms of judgments, and author- izing a severance among the parties in rendering judgment, and also when we refer to the special provisions in many codes which utterly abolish the ancient legal distinctions between joint, joint and several, and several liabilities. The conclusions reached in the preceding section, and repeated here, are the following : The legislature does not seem to have intended to abandon the ancient doctrine in respect to joint and several rights ; and, in fact, the complete adoption of the equitable principles which regulate the union of parties would not require such a change, for in equity, as well as in law, all persons having a joint right must in general unite in a suit to enforce that right. The legislature, on the other hand, does seem to have intended to effect a change more or less thorough in the common-law rules which determine the differences between joint, joint and several, and several liabilities, and which regulate the selection and union of defendants in the case of one or the other of these liabilities. This intent, suffi- ciently indicated in all the codes, is placed beyond a doubt by the express provisions of others. The general conclusions of the discussion concerning plaintiffs, found in the last preceding sec- tion, are equally true of parties defendant. Believing them to be a correct interpretation of the codes, I adopt them here without any unnecessary repetition of the reasoning by which they were established.! The rules which the legislatures have put into a statutory form are confessedly the general doctrines of equity concerning defendants. They apply in terms to the civil action appropriate for the pixrsuit of all remedies ; no exceptions are made or suggested. The' design of the legislature is therefore plain, that these equitable doctrines and rules should be control- ling in all cases, and should not be confined to actions which are equitable in their nature. It must be confessed at once, how- ever, that this conclusion has not been accepted by all the courts, nor in its full extent, perhaps, by any. The general expressions of the codes, although their main design is evident enough, have not been regarded as sufficiently explicit, detailed, and peremp- tory to abrogate and sweep away all of the long-settled partic- ular rules of the former system. In other words, the change, as 1 See supra, §§ 196-200. NONJOINDER OF DEFENDANTS. 339 it has been wrought out by judicial decision, has been made par- tial and incomplete, and has been far more radical and perfect in certain of the States than in others. It is impossible to lay down in an explicit manner any more definite principle of interpretation than that here given. The actual position of the courts must be learned from their decision of particular cases, and from the spe- cial rules concerning defendants in various classes of actions which have been established by them, and which will be detailed in the following portions of this section.^ Particular Rules and Doctrines. § 287. How the questions of misjoinder or nonjoinder are to he raised. Before proceeding to the examination in detail of the particular rules and doctrines as to defendants, which have been established by judicial decision, I shall inquire how the questions may be raised in the progress of an action ; when the objection of a misjoinder or a nonjoinder is waived ; and wh^t is the effect of such an error in the proceedings, if properly brought before the court for adjudication. I have already quoted and discussed the statutory provisions which prescribe the modes of raising the questions in reference to plaintiffs ; ^ and the same rules exist in the case of defendants, for the language of the codes in defining these methods applies alike to both parties.^ It was shown, in the paragraphs referred to, that " defect " of parties refers solely to the wow-joinder of the proper plaintiffs or defendants, — to the fact of too few parties. This construction is universal.* It is ^ The general theory of the codes, and ^ See supra, §§ 206, 207. the principles of the new procedure in ' See the citations from the codes, and respect of parties defendant, are discussed the cases collected supra, §§ 206, 207 ; Hill with more or less fulness in the following v. Marsh, 46 Ind. 218 ; Mornan v. Carroll, cases : Wilson v. Castro, 31 Cal. 420; 35 Iowa, 22, 24, 25 ; Beckwith v. Dargels, Bowers II. Keesecher, 9 Iowa, 422 ; Nelson 18 Iowa, 303; School District, &c. v. V. Hart, 8 Ind. 293 ; Braxton v. State, 25 Pratt, 17 Iowa, 16 ; Byers v. Rodabaugh, Ind. 82 ; Tinkum v. O'Neale, 5 Nev. 93 ; 17 Iowa, 53. Smetters v. Rainey, 14 Ohio St. 287, 291 ; * Ibid. ; Truesdale v. Rhodes, 26 Wis. Union Bank v. Bell, 14 Ohio St. 200, 211. 215, 219, 220. Read v. Sang, 21 Wis. Where a demand exists in favor of a firm, 678, laid down a different rule, but the and one partner refuses to join as a plain- Wisconsin court is now in harmony with tiff, he may be made a defendant in an those of all the other States. See also ordinary legal action brought by his co- Marsh v. Board of Supervisors, 38 Wis. partners to recover the debt. Hill v. 250 ; Great West., &c. Ins. Co. v. Aetna Marsh, 46 Ind. 218. This ruling, in my Ins. Co., 40 Id. 873. opinion, exhibits the true intent of the codes in the clearest possible manner. 340 CIVIL REMEDIES. settled by an overwhelming and unanimous array of authorities, (1) that if the defect of parties defendant — as thus defined — appears on the face of the complaint or petition, the defendant ■who desires to raise the question must demur upon that specific ground, an allegation of the defect in the answer as a defence being nugatory ; (2) when the defect does not thus appear on the face of the plaintiff's pleading, the defendant must raise the objection in his answer as a defence ; and, (3) if both of these methods are omitted, or if one of them is employed when the other is proper, the defendant waives all objection to the defect or nonjoinder.^ In no case can this objection be raised by a de- murrer on the ground that the pleading does not state facts suffi- cient to constitute a cause of action. Although this rule is so firmly settled, yet if, on the trial, or even on appeal, the court sees that other parties are indispensable to a full determination of the questions at issue, it may, on its own motion, even though the defect has not been pointed out by answer or demurrer, order the additional parties to be brought in. This power is expressly given by all the codes, and was a familiar doctrine of the equity procedure. The language of the statutes is certainly broad enough to permit the exercise of this power in legal as well as in equi- table actions ; but, practically, the courts confine its operation to the latter class. ^ When the defendant sets up in his answer the defence of nonjoinder, he must state the names and places of residence of the other persons whom he alleges to be necessary defendants. This old rule of the common-law pleading has not been altered by the new legislation.^ 1 Bevier v. Dillingham, 18 Wis. 529 ; N. Y. 552 ; Potter v. Ellice, 48 N. Y. 321 ; Burhop V. Milwaukee, 18 Wis. 4.31 ; Cord Pavisich v. Bean, 48 Cal. 364 ; Rutenberg V. Hirsch, 17 Wis. 403 ; Carney v. La «. Main, 47 Cal. 213 ; Gillam v. Sigman, Cross, &c. R. R., 15 Wis. 503 ; Lowry 7;. 29 Cal. 637. See, however, Muir v. Gib- Harris, 12 Minn. 255; Mitchell v. Bank son, 8 Ind. 187 ; Shaver v. Brainard, 29 of St. Paul, 7 Minn. 252 ; Carr v. Waldron, Barb. 25. Also, Hardy v. Miller, 11 Neb. 44 Mo. 393 ; Makepeace v. Davis, 27 Ind. 395 ; Black v. Duncan, 60 Ind. 522; Gil- 352 ; Little v. Johnson, 26 Ind. 170 ; John- bert v. Allen, 57 Ind. 524 ; Hardee v. Hall, son u. Britton, 23 Ind. 105; Shane v. 12 Bush, 327 ; Ross w. Linder, 12 S. C. 592. Lowry, 48 Ind. 205, 206 ; Strong v. Down- ^ ^g illustrations, see Muir v. Gibson, ing, 34 Ind. 300 ; Turner;;. First National 8 Ind. 187 ; Shaver v. Brainard, 29 Barb. Bank, 26 Iowa, 562 ; Hosley v. Black, 28 25. N. Y. 438 ; Kingsland v. Braisted, 2 Lans. ^ Kingsland v. Braisted, 2 Lans. 17. 17; Sager w. Nichols, 1 Daly, 1 ; Bridge w. Where such an answer was defective in Payson, 5 Sandf. 210 ; Lewis v. Williams, certain particulars, although it conveyed 3 Minn. 151; Hier v. Staples, 51 N. Y. the information needed, and all the re- 136 ; Fort Stanwix Bank v. Leggett, 51 quisites of the defence were proved on MISJOINDER OF DEFENDANTS. 341 § 288. The foregoing being the methods of raising the ques- tions as to a defect of pai-ties defendant, the inquiry arises, What is the effect of such defect when established in either of these methods ? If, upon demurrer, it is held that the plaintiff has failed to unite all the necessary defendants, he will be permitted to amend, as a matter of course, upon the terms as to costs pre- scribed by the practice. When the defence is set up in the an- swer, the same opportunity is given to the plaintiff to amend, and to reconstruct his action. If the defect is not removed in this manner, it will certainly defeat any legal action, although not necessarily, perhaps, an equitable one. Undoubtedly, the codes, adopting the doctrine of equity tribunals, and extending it to all cases, permit the court in its discretion to retain the cause, under such circumstances, until the other necessary parties are brought in, instead of dismissing it altogether. It is plain that the language of the statutes is general, and embraces all species of actions, no exception being expressed or intimated ; and there can be no pretence that it is not as practicable and as easy to deal with legal actions in this manner as with equitable suits. Practically, however, the authority thus given to the courts is restricted to equitable actions, while legal actions are disposed of in the same manner and by the same rules as before the re- formed system was adopted, — that is, the nonjoinder of a neces- sary defendant, when not cured by amendment, defeats that action, although it does not destroy the cause of action. It may be instructive to compare these results with the provisions of the new English procedure, which declare that under no cir- cumstances shall a cause be defeated or dismissed on account either of a nonjoinder or of a misjoinder of parties.^ § 289. I pass now to the misjoinder or improper uniting of defendants.^ Two cases present themselves which might perhaps the trial, the defect was held cured. North Carolina that a mi's-joinder of par- Wooster v. Chamberlin, 28 Barb. 602. It ties, either plaintiffs or defendants, shall has been held in Indiana that a demur- never defeat any action. If plaintiffs are rer to the complaint, on the ground of a improperly united, the defendant shall nonjoinder of defendants, must also show have judgment against them for costs ; if who ought to have been added as defend- defendants, they may disclaim and have ants, and that, failing to do so, it will be their costs against the plaintiff. This is overruled. Willett v. Porter, 42 Ind. 250, carrying out the true spirit of the reform ; 254. it fully sustains the theoretical position 1 The " Supreme Court of Judicature taken in the text, and might well be fol- Act " of 1873 ; Schedule, Rule 9. lowed in all the States. Green v. Green, 2 The admirable rule is adopted in 69 IT. C. 294, 298. 342 CIVIL EEMEUIES. be regarded as falling under this head : namely, (1) Where all of the defendants are improperly sued ; and, (2) Where one or more are properly sued, and the others are improperly joined with them. The latter only is a true case of technical " misjoinder." The first is the ordinary case of an action entirely misconceived, and the complaint or petition failing to disclose any ground for relief, so that all the defendants jointly or each of them sepa- rately, according to the circumstances, might either demur for want of sufficient facts, or move to dismiss the action on the trial. Such a case does not fall within the special rules of pro- cedure which relate to parties, but is to be determined by the general doctrines of the law defining rights and liabilities. The second of the two cases just described does come within the sub- ject-matter of parties defendant, and is to be considered under two aspects, which give rise to two very different classes of ques- tions. These two aspects are the following : It being supposed that one or more defendants, whom I will call A., are properly sued, and that one or more others, whom I will call B., are im- properly joined in the action, the matters for consideration which can possibly arise from these facts are : (1) How shall the proper defendants. A., take advantage of the error, and what effect (if any) will it have upon their rights ? and, (2) How shall the im- proper defendants, B., raise the objection, and what effect (if any) will the error have upon their rights ? It is plain that these two sets of defendants occupy very dissimilar positions in the action ; that their rights are very different, and that while the latter are entitled to full relief, the former may not be in the least injured or affected by the misjoinder. Much confusion in practice has resulted from the neglect to distinguish between these two cases. § 290. Proceeding to the discussion of these two cases sepa- rately, I shall state the rules established in respect to the first of them, and shall illustrate by a striking example the extent to which the common-law doctrines have been changed by the re- formed procedure. When a legal action is brought against two or more defendants upon an alleged joint liability, even though based upon a, joint contract, and, one or more of them are, so far as they are individually concerned, properly sued, but the others are improperly united, the defendants properly sued have no cause of complaint whatsoever, in any form, on account of the misjoinder ; they cannot demur or answer for defect of parties, MISJOINDER OF DEFENDANTS. 343 because there is no " defect ; " they cannot demur generally for want of sufficient fads, because sufficient facts are averred as against them ; they cannot demur or answer on account of this misjoinder, because that particular ground of objection is not provided for by the codes.^ If on the trial the cause of action is proved against them, but none against them and the others, still the plaintiff will not be absolutely nonsuited ; he will recover his judgment against them according to the right of action estab- lished by the proof ; while as against the other defendants he will fail, and will be nonsuited, or his complaint be dismissed. This result of the reform legislation is a very great departure from the former practice. At the common law, if a plaintiff alleged a joint cause of action against two or more defendants, and failed to prove the case as set out in his pleading, he was defeated as to all ; he could not recover against a part and fail as to the others. The interpretation of the codes, as thus stated , is based partly upon the sections already quoted in relation to defendants, and partly upon other sections — to be fully discussed hereafter — in relation to the form and manner of recovery and entry of judgments. By combining these various provisions, and by a construction of them in accordance with their plain spirit and meaning, the courts have deduced the rules here given. To those defendants who are sued in a legal action, even though upon an alleged joint liability, and who are actually liable upon the contract or other cause of action averred, the fact that other persons are also added as co-defendants, however improperly, is no defence, is no answer to the action in any manner or form. This doctrine is fully established bj' the cases collected in the foot- note, and in many others which it is unnecessary to cite.^ The 1 An exception must, of course, be recovery against them is proper, althougli made of those codes wliich expressly pro- he may have joined others with them in vide, as a distinct cause of demurrer or the action against whom no hability is defence, the misjoinder of parties, — name- shown." See also, per Emott J., pp. 174, ly, Missouri, California. 175; Brumskill u. James, 11 N, Y. 294; 2 Mcintosh i;. Ensign, 28 N. T. 169, Marquat v. Marquat, 12 N. Y. 336; Har- 172. Wright J., after stating the com- rington v. Higham, 15 Barb. 524 ; Parker mon-Iaw rule in actions upon a joint con- v. Jackson, 16 Barb. 33 ; N. Y. & N. H. tract, said : "But that is not the present R. R. v. Schuyler, 17 N. Y. 592; Coakley rule. A plaintiff- is not now to be non- v. Chamberlain, 8 Abb. Pr. N. s. 37 ; Fort suited because he has brought too many Stanwix Bank v. Leggett, 51 N. Y. 552 ; parties Into court. If he could recover Truesdellw. Rhodes, 26 Wis. 215, 219, 220; against any of tlie defendants upon the McGonigal o. Colter, 82 Wis. 614 ; Wil- f acts proved, had he sued them alone, the lard v. Reas, 26 Wis. 540, 544 ; Alnutt v. 344 CIVIL REMEDIES. rule being thus established in the extreme case of legal actions alleging a joint liability upon contract, it is of course equally true in all other legal actions based upon a liability which at the com- mon law was several, and in which the misjoinder of some de- fendants would have been no defence as to those properly sued, — as, for example, in actions for torts. A fortiori does the same doctrine apply in all equitable actions. Under the former sys- tem, the improper uniting of co-defendants was never a sufficient ground for preventing a decree against those who were properly made parties if the suit was in equity.^ § 291. The situation of those parties improperly joined as co- defendants is, of course, very different from that just described. The very statement of the case assumes that the action is wrongly brought as against them ; that, either as disclosed by the allega- tions of the plaintiff's pleading, or as discovered by the evidence on the trial, no cause of action exists against them, notwithstand- ing the one which exists against their co-defendants. If, therefore, in such a case, it appears on the face of the complaint or petition that one or more persons have been improperly made defendants, such persons may present the objection by a demurrer, not on the ground of a " defect " of parties, but on the ground that the plaintiff's pleading does not state facts sufficient to constitute a cause of action against them. This demurrer must be interposed only by those defendants who are wrongly sued, and not by all the defendants jointly, since, if two or more demur jointly, and as to a portion of them there is no cause for the demurrer, it must fail as to all. The safer practice is, therefore, for each- defendant who claims that he is improperly joined, to demur separately and individually from the others. This particular ground of objection is not waived by a neglect to demur, as it is expressly provided in all the codes that the defendant may at the trial interpose the Leper, 48 Mo. 319; Brown u. "Woods, 48 Ind. 535; Murray v. Ebright, -50 Id. 362; Mo. 330 ; Eutenberg v. Main, 47 Cal. 213, Erwin v. Scotten, 40 Id. 389 ; Carraien v. 221 ; Aucker v. Adams, 23 Ohio St. 543, Whitaker, 36 Id. 509 ; Graliam v. Hender- 548-550; Lampkin v. Cliisoin, 10 Ohio son, 35 Id. 195; Crews v. Lackland, 67 St. 450. See also cases cited, infra, un- Mo. 619 ; Ryan v. State Bank, 10 Neb. der § 291 of the text in reference to the 524 ; Hubbard v. Gurney, 64 N. Y. 457 ; remedy by those who are improperly joined. Blackburn u. Sweet, 38 Wis. 578. But see See also Territory v. Hildebrand, 2 Mont. Curry v. Roundtree 51 Cal. 184. 426 ; Dist. Townp., &c. v. Dist. Townp. i See N. Y. & N. H. R. R. v. Schuyler, of Oskaloosa, 44 Iowa, 512; Littell v. 17 N. Y. 592. Savre, 7 Hun, 485; Stafford u. Nutt, 51 MISJOINDER OF DEFENDANTS. 345 same objection to the plaintiff's recovery, even though he has failed to allege it on the record. If the absence of a cause of action does not appear on the face of the plaintiff's pleading, the defence may be set up in the separate answer or answers of the par- ties who rely upon it. Finally, whiitever be the completeness or defect of the allegations made by the plaintiff and of the issues raised in the answers of the defendants, if on the trial the evi- dence fails to establish a cause of action against some portion of the defendants, and it thus appears that they had been wrongfully proceeded against in the action, the plaintiff will be nonsuited, or his complaint or petition dismissed as to them, and his recovery will be limited to the others against whom a cause of action is made out. The foregoing rules are sustained by the cases with almost absolute unanimity.^ These are the more regular and 1 Young V. N. Y., &c. Steamsliip Co., 10 Abb. Pr. 229 ; Mitchell v. Bank of St. Paul, 7 Minn. 252, 256 ; Nichols v. Ran- dall, 5 Minn. 304 ; Seager v. Burns, i Minn. 141 ; Lewis o, Williams, 3 Minn. 151 ; Makepeace v. Davis, 27 Ind. 352, 355; McGonigal v. Colter, 32 W^is. 614; Webster v. Tibbitts, 19 Wis. 438 ; Trues- dell v. Rhodes, 26 Wis. 215, 219, 220; Willard v. Reas, 26 Wis. 540, 544; Ru- tenberg v. Main, 47 Cal. 213, 221. A joint action against several defendants on a joint contract. All the defendants denied making the contract, but no defence of misjoinder was pleaded. On the trial, it was proved that the contract was made by some of the defendants, but not by all. It was held that the plaintiff should re- cover against those defendants who, as it was proved, had entered into the agree- ment, while, as to the others, the action should be dismissed. After stating that, under § 44, if the misjoinder of defend- ants does not appear on the face of the complaint, the objection must be taken by answer, or else it is waived, citing Gillam 0. Sigman, 29 Cal. 687, the court added : "This section applies to actions ex con- tractu and ex delicto, and, to the extent necessary to give it effect, it controls the principle that the allegations and proofs must correspond. This only means that if the evidence does not connect all the defendants, — and the misjoinder has not been specially pleaded, — the plaintiff shall not fail against all. Each of the defendants is still entitled to use the joint denial that the contract was made (or his own protection ; and in case there is fail- ure of evidence as to any one, that one should have a decision or a verdict in his own favor." The section 44 referred to (present § 433) provides that, where the defects do not appear on the face of the complaint, the objection must be taken by answer. See, however, per contra, Wood V. Olney, 7 Nev. 109, which holds that when a joint demurrer by defendants is good as to some and bad as to the others, it will not be overruled as to all ; it will be sustained as to those who had a good cause of demurrer, and overruled only as to the others. In Missouri, where a misjoinder is made a cause of demurrer, it is held the objection must be set up by those who are thus improperli/ joined, and not by the others. If the others unite in the demurrer, it will be overruled as to them. Brown v. Woods, 48 Mo. 330; Alnutt I). Leper, 48 Mo. 319. See also, as to the effect of misjoinder, Nam v. Had- ley, 74 Ind. 155 ; Mendenhall n. Wilson, 54 Iowa, 589 ; Cogswell v. Murphy, 46 id. 44; Dist. Townp, of White Oak v. Dist. Townp. &c., 44 id. 512. On the general doctrine as to the proper joinder of de- fendants, see Buie v. Mech. Ass'n, 74 N. C. 117 ; State v. J. P. & M. R. R., 15 Fla. 201 ; Mahoney v. McLean, 26 Minn. 415. 346 CIVIL REMEDIES. formal modes of raising the questions as to misjoinder by those defendants who are thus wrongfully made parties to a suit ; but there undoubtedly may be cases in which the court will proceed in a more summary manner, and will strike off the name of a party on his mere motion. Such cases must of necessity be some- what exceptional, for, as a general rule, the rights and liabilities of the parties to the record will not be determined on motion or by any other means except a formal trial of the issues. § 292. If we sum up the results of the preceding discussion, the following conclusion may be regarded as established beyond any doubt. In ascertaining the effects of a misjoinder of parties, the courts, with great equanimity, have accepted and carried out in practice the spirit and true intent of the reform legislation ; namely, that the familiar doctrines of equity should be made controlling in all kinds of actions legal and equitable. They have in this instance entirely abandoned the technical common- law rules, and have assimilated all actions in this respect to a suit in equity. Even in the case where the common-law doctrine of joint liability was the most rigid, they have with perfect ease abandoned it, have treated it as though abrogated by the general expressions of the reform legislation, and have thus demonstrated that the judicial reasoning by which that ancient dogma had been supported was in fact nothing but a formula of words with- out any real force and meaning. They have shown that in a legal action upon contract, no matter what may be the allega- tions as to the joint nature of the liability, it is possible to sever the judgment and to permit a recovery against some defendants and for the others, and thus to bring all cases legal and equitable within the operation of the familiar principles of equity. I dwell upon this special instance of liberal construction because it well illustrates the position which I have theoretically maintained as to the general mode of interpreting the codes. The courts of the different States have found no difficulty in adopting and applying the complete doctrine of equity in this case ; there is no greater difficulty in adopting and applying the same to all the provisions of the codes relative to parties, and to the amalgamation of equi- table and legal principles in the one civil action created by the new procedure. If the rules which control equitable tribunals can be and ought to be introduced into the civil action in respect to the single feature of a misjoinder of defendants, for the same MISJOINDER OF DEFENDANTS. 347 reason they can and ought to be introduced in respect to all the parties and in respect to every other external feature of the judi- cial proceeding. If the courts had been consistent in this matter, and had not halted in their work of liberal construction, a com- plete, harmonious, and symmetrical system would long since have been constructed, and the confusion and conflict in principle which now exists would have been avoided. Until this course is freely and systematically adopted, until the courts shall follow out to its legitimate results in all parts and elements of the action the equitable notion which is made everywhere so prominent in the statute, we can never expect to obtain all the simplicity and clearness, and subordination of external form to substantial facts, promised by the new system of procedure. § 293. Even in determining the effects of a nonjoinder of proper defendants, the courts have failed to interpret the provi- sions of the codes with the same freedom which they used in that of misjoinder ; they have hesitated and stopped, when it would have been easy to have gone forward, and to have given the clauses their full force and effect. Undoubtedly the two cases stand upon a somewhat different footing. When a person is himself properlj^ sued, it does not substantially affect his rights or liabilities that another person is also improperly sued with him ; that fact does not essentially make his own liability greater or less. But when a person is sued, he has, in many instances, — certainly in all those legal actions where the liability is joint, and in some equitable suits where the rights and liabilities are com- plex, — a right that all the others who are also liable with him, or against whom the cause of action exists, or who are necessary parties to a complete determination of the controversy, should be united with him as co-defendants, and a neglect to join them is an error against which he should be permitted to object, and from which he should be suffered to obtain a relief. The former equi- table procedure, as well as the common-law practice, recognized this right of the defendant. But it is a very different thing to say that such an error, when established, should in any class of cases absolutely defeat the action. The error is not essentially fatal. This is shown by the practice itself of the courts, which treats the objection as dilatory, and requires it to be presented in a certain technical manner, or else regards it as waived. There is then no reason in the nature of the proceeding why the equity 348 CIVIL REMEDIES. doctrine should not have been applied under these circumstances to all legal actions, so that, when an improper nonjoinder is finally established by the decision of the court, the action should never be defeated thereby, but should be retained by the court in order that the plaintiff might add the necessary defendants, and then the cause proceed to judgment on the merits. It is cer- tainly as practicable and as easy to pursue this course with all legal actions, as it is with those that are equitable ; and the codes expressly permit, if not require it, in language which in terms embraces every species of suit. I shall now proceed to consider the particular cases which have arisen, and the various specific rules as to parties defendant which have been established by judicial decision. This examination will show how the general principles of interpretation have been applied by the courts, and will exhibit the system as a whole which has been constructed in respect to the selection and joinder of defendants. The discussion will be separated into three gen- eral divisions : namely, legal actions generally ; actions against husband and wife, or either of them, as affected by the marriage relations ; equitable actions generally. fiest: legal actions. § 294. I. Actions against Owners or Occupants of Lands. This division does not include actions for trespass or other torts to the land or its possession, which will be considered under a subse- quent subdivision relating to torts. The actions here intended must be brought against joint owners, owners in common, or occupants. The action to recover possession of land, and to try the title thereto, is generally called by lawyers and judges the action of ejectment. Yet wherever the new procedure is adopted, it far more nearly resembles in all of its essential features the ancient real actions which were displaced in use by " ejectment," — in its essential features, I say, for of course it has none of the technical peculiarities which marked those old common-law forms of proceeding. One fact is certainly true, namely, that it does not bear the slightest resemblance to the action of " ejectment " as that was contrived by the old judges and lawyers, and only confusion and misconception result from applying to it that name. Undoubtedly the courts have continued to connect with it some ACTIONS AGAINST OCCUPANTS OF LAND. 349 of the special rules and doctrines which belong to the action of ejectment ; but many of them, I am sure, could never have been retained if the courts had fully appreciated the completeness of the change wrought by the reformed system of pi'ocedure in abolishing all the forms of legal actions, and had reflected that the technical rules resulting alone from the absurd fictions which characterized ejectment have no legitimate connection with the simple action to recover possession of and try the title to land which has been introduced by the codes in the place of the former modes. As in the " real actions," the real party in interest, and that is the owner of the estate entitling Iiim to possession, — whatever be its nature, — must be the plaintiff, and if the object be to establish a title, the holder or claimant of the adverse title must be made the defendant, while in respect of the claim to possession the occupant must be made a defendant. These are the simple essentials of the action, and they clearly have nothing in them akin to " ejectment." The codes of a few States contain express provisions in relation to parties defendant, and especially in relation to the union of the landlord and tenant as co-defend- ants,^ but these are rather inserted from an excess of caution, and do not add anything to the force of the more general clauses. § 295. In an action to recover possession of an entire tract or parcel of land, when the claim of the plaintiff to the whole rests upon and is derived through a single title, he may, and unless their occupation is distinct, should join all the actual occupants or tenants of the tract, even though they may be in possession of separate and distinct portions thereof, and may hold, possess, and claim under separate and distinct titles. In addition to these he may join the landlord or person holding the fee, or any person claiming the ownership and right of possession, and must join such person if he desires to establish in that action his own ulti- mate ownership against that claimant.^ If the entire tract is in the possession of two or more persons who possess the same, not in separate portions, but jointly or in common in undivided shares, 1 Code of New York, § 118 (447, 1503, Koonce, 76 id. 363 ; Lytle v. Burgin, 83 1598) ; California, §§ 379, 380 ; South id. 301 ; Young v. Greenlee, 82 id. 246 ; Carolina, § 141 ; North Carolina, § 61, Cagger v. Lansing, 64 N. Y. 417 ; in Wis- 2 State V. Orwig, 34 Iowa, 112,115. consin, see Gray ti. Tyler, 40 Wis. 579; As to proper defendants in ejectment see Pier v. Fond du Lac, 38 id. 470 ; Wilson also Jackson v. Allen, 30 Ark. 119; Eol- v. Henry, 40 id. 594; Platte v. Jaule, 35 lins V. EoUins, 76 N. C. 264; Colgrove v. id. 629; Barclay v. Yeomans, 27 id. 682. 350 CIVIL REMEDIES. they should all be made defendants. If the plaintiff, however, claims separate portions of an entire tract under distinct titles, and each of these portions is possessed or occupied by a different , person holding under a separate right or title from the others, he cannot join all these occupants in a single action ; a suit must be brought to recover each portion against the occupant thereof; the mere fact of propinquity would not produce any community of interest. The foregoing propositions are sustained and illus- trated in the following instances. In an action brought by a widow to recover dower (which had not been assigned) in a city lot of land and block of stores, the occupant, holding under a lease for one year, of a single floor of one store standing on a small portion of the entire tract, was held to be properly joined as a co-defendant.i A similar action being brought to recover dower in a tract which the husband had conveyed during his marriage to a single grantee by one deed in which his wife did not join, and which land had by subsequent deeds been conveyed, ojie-half to one separate owner, and one-half to another, it was held that the widow, being entitled to dower in the whole tract, might join both these owners of the fee, who were also the occupants, as defendants in the same action.^ The rule is not confined to proceedings for tlie recovery of dower. Where it was alleged that one defendant claimed to be owner in fee of the whole premises, and that the three other defendants were his tenants, and that they all " uqjustly withheld from the plaintiff the possession of the said premises," and it appeared on the trial that each of these four defendants actually occupied a separate portion, it was held that all these persons were properly united as co-defendants in the action.^ When the land is in the actual possession of a tenant, the landlord may be joined with him as a co-defendant, indepen- 1 Ellicott V. Hosier, 7 N. Y. 201. This owned in fee by a wife, her husband is the was so held under the 2 R. S. of New only proper party to be made defendant, York, p. 303, §§ 2 and 4, and p. 304, §§ 10 since he is entitled to the possession, and 13, which pi-ovide that ejectment must Bledsoe v. Simms, 53 Mo. 305. be brought against the person actually 2 Galbreath v. Gray, 20 Ind. 290. It in occupation ; citing Slierwood v. Van- was held that the respective liabilities of denburgh, 2 Hill, 303. The defendant the two defendants could be arranged and had contended that, the action being for determined in the judgment, dower, must be against the owner of the ' Fosgate v. Herkimer Man. Co., 12 freehold, as in the common-law action of N. Y. 580. See Fisher v. Hepburn, 48 dower. In Missouri, when an action is N. Y. 41, 55, per Earl J. brought to recover lands claimed to be ACTIONS AGAINST OCCUPANTS OF LAND. 351 dently of any express provision of the code authorizing such a course, if the landlord has in any manner interfered to resist the plaintiff's claim, or has aided and abetted the tenant in his resist- ance, or has asserted the right of ownership to be in himself as against the plaintiff.^ § 296. Persons, however, whose rights cannot be at all affected by a recovery against the party in actual possession, whose in- terest is entirely distinct from his, and under or from whom he does not derive any title, are neither necessary nor proper co- defendants with him in an action brought to recover the posses- sion as against his special title ; as, for example, the remainder- man in fee after a life estate, when the action is merely for the purpose of recovering possession during the continuance of such life interest. Thus, in an action against a husband, tenant by the curtesy in actual possession, brought not to establish an absolute title in fee, but to recover the possession during the husband's life, the heirs of the deceased wife — who are the reversioners in fee — are neither necessary nor proper parties defendant.^ On the same principle, an action by the grantee in a sheriff's deed of lands given on an execution sale, the judgment debtor having died, should be against the latter's heirs alone, and not against them and his widow ; her dower right could not be affected by the recovery, and being as yet unassigned, it did not entitle her to possession as against the plaintiff.^ Lands having 1 Abeel jj. Van Gelder, 36 N. Y. 513. based upon the last clause of § 118 of the One S. was the tenant in possession, and New York Code. See also Finnegan o. Van G. was the landlord. The court, Carraher, 47 N. Y. 493, wliich was very after reciting the facts that Van 6. similar to Abeel v. Van Gelder, supra, in claimed to be the owner, that the entry all the facts. The landlord alone was was made, and the possession was retained sued. Court held the tenant was also a by his command, that he asserted title proper and perhaps a necessary party, in himself, and declared that possession but objection to his nonjoinder had been should not be surrendered, proceeds, at waived by not demurring or answering, p. 514 : " This was certainly enough to In Iowa, it is held that when the defend- constitute him a tort-feasor with his ten- ant is only a tenant, the landlord may be ant, whose action he assumed to control, substituted ; but this is not necessary. He knowingly and purposely took upon If substituted or notified, he is bound by himself the burden of supporting his ten- the judgment ; otherwise he is not. State ant's possession, and thus made the pos- v. Orwig, 34 Iowa, 112, 115. session his own ; and, if wrongful, he was 2 Allen v. Ranson, 44 Mo. 263. thus, with his tenant, responsible there- ' Cavender v. Smith, 8 Iowa, 360. If for," — citing Fosgate v. Herkimer Man. the dower had been assigned so that the Co., supra ; Pearce v. Ferris's Executors, widow was in actual possession of part of 10 N. Y. 280 ; Fosgate v. Herkimer, &c. the land, her possession, as long as it con- Co., 12 Barb. 352. This decision is not tinued, would, of course, have been under 352 CIVIL EEMEDIES. been given to a tenant for life, with remainder in fee to another, the former leased the premises for a term of years, with a cove- nant of quiet enjoyment. The life tenant died before the expira- tion of the term, and the remainder-man thereupon entered and took possession. The lessee brought an action upon the broken covenant against both the executors of the life tenant and the remainder-man. The action in this form was plainly without any foundation ; the remainder-man was improperly joined, as he was in no manner liable on the covenant.^ § 297. II. Actions against Owners or Possessors of Chattels. The actions which fall under this subdivision, and which have any distinctive features, are very few in number. Those brought to recover damages for a tortious act, trespass, or negligence, committed by means of a chattel, and those brought to recover damages for the conversion of a chattel, properly belong to the subdivision which treats of actions for torts in general. The common-law rules as to parties defendant in an action to recover possession of chattels have not been in any manner affected by the new procedure. Such action must be brought against the party or parties in actual possession of the chattel demanded by the plaintiflf. If this actual possession is in one, he must be the sole defendant ; if in two or more jointly, — as, for example, in a partnership, — they must all be made defendants.^ There is a particular case in which the action may be maintained against one in constructive possession, as well as against the party in actual possession.^ If the original taking of the goods was wrong- ful, and the wrong-doer has subsequently parted with the posses- sion by assignment, the action will still lie against him, or it may be prosecuted against both himself and the assignee whose possession is actual.* Possession by the party, however, and not a title paramount to that of the plaintiff; 2 Code of New York, § 207 (1694, and although not yet assigned, she could 1695, 1712) ; Ohio, § 175; Indiana, § 129 ; establish her dower against the plaintiff Wisconsin, ch. 128, § 2 ; Minnesota, 2 after he had obtained possession of the Stats, at Large, p. 876, § 56 ; Missouri, entire tract in his action. art. 6, § 1 ; Iowa, § 3225 ; California, 1 Coaldey v. Chamberlain, 8 Abb. Pr. § 510 ; Oregon, § 131 ; Nebraska, § 182 ; N. s. 37. The complaint was dismissed Kansas, § 177 ; Florida, § 156 ; 1 Ch. PI. as to the remainder-man, and judgment pp. 122, 123 {Springfield ed. 1840.) was rendered against the executors. The ' Nichols v. Michaels, 23 N. Y. 264, action was in every respect remarkable. 270,271. See Haughton w. Newberry, 69 Where a lessee assigns his term, the lessor N. C. 456. may join the lessee and the assignee in a. * Nichols v. Michaels, 28 N. Y. 264, suit for the rent. Tabue u. McAdams, 268, 270, 271, per James and Selden JJ. 8 Bush, 74. ACTIONS AGAINST POSSESSORS OF CHATTELS. 353 the claim of ultimate ownership, is in general the ground for making him a defendant. If the possessor is sued, and a third person also sets up a claim of title, the conflicting demands may be determined by means of an interpleader between the plaintiff and this claimant, ordered by the court at the instance of the defendant, if he in fact admits that he himself has no right in and to the goods.^ § 298. The liability of ship-owners for supplies furnished or repairs made, or upon other contracts, express or implied, in respect to the vessel itself, gives rise to rules which properly fall under this subdivision. I do not now stop to inquire when, how, or by whom the owners may be bound, nor what are the powers of the master or other agent in managing the vessel. It is as- sumed that the power exists and has been properly exercised, and that a liability has arisen for the supplies, repairs, or other aid to the ship ; and the single question is. What is the extent of the liability, upon whom does it rest, and against whom should it be enforced ? When a liability has been created by the master or other agent for supplies furnished to the vessel, the part-owners are responsible in solido, and should all be joined as defendants ; the no7ijoinder of some is a defence by those sued ; ^ and the same is true in the case of repairs and of all other expenses properly incurred in sailing her.^ An action to recover compensation in the nature of salvage for services rendered in saving and securing a disabled steamboat under circumstances entitling the plaintiff to such compensation, was held to be properly brought against all the persons and corporations who owned interests in the boat, even though their interests were distinct and unequal, and even though some of them were separate insurers of her by different policies, to whom an abandonment had been made on account of a total loss. Although their interests and their liabilities were 1 See code of New York, § 122 (452, = Bassett v. Crowell, 3 Robt. 72. Lia- 820) ; Ohio, § 42 ; Indiana, § 23 ; Wis- bility in solido means a joint liability, consi'n, eh. 123, § 22 ; Minnesota, § 116 ; where all must be proceeded against, and Iowa, § 2572 ; Kentucky, § 42 ; California, the judgment is recovered against all, but § 386; Kansas, § 43; Nebraska, § 48; may be fully enforced against either, and Florida, § 77; South Carolina, § 145; he left to liis riglit of contribution, if any. North Carolina, § 65 ; Nevada, § 17 ; against his fellows. In reference to the Oregon, § 39; Dacota, § 75; Washing- general doctrine stated in the text, consult ton § 12 ; Wyoming, § 47 ; Montana, Smitll's Mercantile Law, pp. 237, 238 8 19, ' (Am. ed.), and Abbott on Shipping, pp. 2 Sager v. Nichols, 1 Daly, 1. 116-118 (marg. pag.). 23 354 CIVIL KEMEDIES. unequal, they might all be sued in a single action, and a separate judgment could be rendered against each in proportion to his or its liability. 1 § 299. III. Actions upon contract : Joint LiMlity. Notwith- standing the general intent of the codes — which, I think, is very plain — to substitute the equitable in place of the legal doctrines upon the subject of joint liability and of the necessary defendants in actions brought thereon, this intent has not guided the courts in the decision of the particular cases as they have arisen. The overwhelming weight of authority, in passing upon the subor- dinate and practical questions, has determined that no such change has actually been made, and that the common-law rules are left controlling in all legal actions.'^ The only modification — and it is rather formal than real — seems to be in the manner of raising the questions. In an action against joint debtors, or to enforce a joint liability arising out of contract, all of the joint debtors or joint contractors that are living must be united as co- defendants ; and a neglect to make such union of parties, if properly taken advantage of, will be fatal to the action. In other words, the codes, in the absence of such express provisions as are found in those of a few States,^ have not changed the nature of joint liability on contract, nor assimilated it to a several or joint and several one.* While this doctrine is generally accepted in ' Cloon V. City Ins. Co., 1 Handy, 32, Ind. 82 ; Shafer ;). Moriarty, 46 Ind. 9, per Gliolson, J., Superior Court of Cincin- 13. See Lane v. Salter, 51 N. Y. 1. In nati. Bledsoe v. Irvin, the court said that the 2 This general statement does not, of decision there made did not conflict with course, apply in those States whose codes the doctrine of Goodnight v. Goar, 30 Ind. expressly change the common-law rules in 418, which was that " the code seems to respect to joint debtors and joint liability have re-enacted the rules which prevailed upon contract, and expressly permit any in equity as to who must join as plaintiffs number to be sued, and also the personal and may be joined as defendants," be- representatives oE deceased joint debtors cause, even in equity, such parties (joint to be united with the survivors, &c. See debtors) must all be made defendants, and supra, § 118. thus brought before the court; citing, in 8 Namely, Kentucky, §§ 38, 39 ; Mis- support of this equity rule, 1 Dan. Ch. Bouri, § 7 ; Iowa, § 2550 ; Kansas, § 39 ; Prao. 329. In Shafer v. Moriarty, 46 Ind. North Carolina, § 63 a. 9, 13, the doctrine was applied to the < Bridge v. Payson, 5 Sandf. 210; membersof a corporation, who were made Wooster u. Chamberlain, 28 Barb. 602; personally liable by the statute for certain Tinkum v. O'Neale, 5 Nev. 93 ; Keller w. debts of the company. But if the stock- Blasdel, 1 Nev. 491 ; Jenks v. Opp, 43 holders are each made liable in the Ind. 108, 110 ; Kamm v. Harker, 3 Oreg. amount of the stock held by them respec- 208; Ayles worth v. Brown, .31 Ind. 270; tively, the liability is not joint, and each Bledsoe v. Irvin, 35 Ind. 293 ; Hardy v. must be sued separately. Perry v. Tur- Blazer, 29 Ind. 226 ; Braxton v. State, 25 ner, 55 Mo. 418. If one of two or more DEFENDANTS JOINTLY LIABLE ON CONTEACT. 355 the States which have adopted the reformed system of procedure, in a few of them, as has been said, the language of the statute is much more specific, and this language, it is held by the courts, substantially abolishes all joint debts and contract liabilities, and reduces them to joint and several liabilities ; or, rather, it pro- duces a still greater effect, for, as judicially interpreted, it permits the creditor to sue one, all, or any number he pleases, of the debtors or pei'sons liable on the contract.^ § 300. If one of two or more joint contractors is incapable of entering into a valid agreement, but all are sued jointly in one action, judgment may be recovered against those alone who are capable of contracting and of binding themselves thereby ; as, for example, where a note had been given in a firm name, and the partners, who were husband and wife, were both sued, judg- ment would be given against the husband alone.^ When a con- tract is made by a firm, all the persons who were then members of the partnership continue liable upon it, even though some of them may have retired from the firm before the contract was broken. No ari'angement among the partners themselves can change their liability to their common creditor, unless he is a party thereto, and in some manner discharges an outgoing mem- ber from his responsibility. A suit, therefore, where there has joint debtors has teen discharged in opinion of Cole J. is a very full discus- bankruptcy, he is still a necessary de- sion of the doctrine and of the changes fendant, since his defence is personal, made by tlie new system, — an exceed- and must be specially pleaded. Jenks v. ingly instructive opinion, but too long Opp, 43 Ind. 108, 110, 111. See also, re- for quotation. Kentucky, Gossom v. Bad- taining the common-law rule, People v. gett, 6 Bush, 97 ; Nichols v. Burton, 5 Sloper, Idaho R. 183; Ryan v. State Bk., Bush, 320. This last case holds that a 10 Neb. 524. judgment against one partner on a firm 1 This is the necessary effect of the debt extinguishes the demand, and is a provision in the code of each State re- bar to any subsequent action tliereon ferred to in the text, and named in note against the other partners. This result (1) last preceding; namely, Kansas, Rose is expressly guarded against by the codes V. Williams, 5 Kans. 483; Board of Com- of certain other States. One or more or missioners o. Swain, 5 Kans. 376. An all of the joint debtors may be sued, action may be brought on a joint note Bradford v. Toney, 34 Ark. 763 ; Williams against one or more of the makers ; and o. Rogers, 14 Bush, 776 (a judgment in if all are sued, the plaintiff may dismiss the suit against one or more is not a bar as to any one or more, and take judg- to an action against the others) ; Lingen- ment against the others. Whittenhall v. felser v. Simon, 49 Ind. 82 ( per contra, it Korber, 12 Kans. 618 ; Alvey v. Wilson, is a bar). 9 Kans. 401, 405 ; Silver w. Foster, 9 Kans. ^ Brumsldll v. James, 11 N. Y. 294. 56, 59. Iowa, Ryerson v. Hendrie, 22 See Groat v. Phillips, 6 N. Y. Sup. Ct. 42, Iowa, 480, an action sustained against one where a wife who had joined in a con- of the partners upon a firm note ; the tract was omitted in the action. 356 CIVIL REMEDIES. been no such discharge, should be brought against all the persons who were partners at the time when the agreement was entered into or the indebtedness was incurred.^ § 301. The rule which requires that all joint debtors must be made defendants, appUes to the cases where the contract is im- plied, as well as to those in which it is express. Thus, when two or more administrators, or an administrator and an administratrix, have been appointed over an estate, and upon their retainer ser- vices are rendered by a person for their benefit, — as, for example, by a lawyer retained to conduct legal proceedings affecting the estate, — they are jointly liable to him for his compensation, and should be sued jointly in an action to recover it ; their different and even hostile interests in the final distribution do not alter the nature of their liability upon the contract, express or implied, made with the person thus employed.^ The case of persons liaCle to repay money which had been paid by mistake, is another familiar example of liability arising from implied con- tract ; all the parties upon whom such duty rests should be joined in the suit to recover the money .^ The members of a joint-stock association, not being a corporation, are jointlj- liable as partners for the debts and contracts of such association. Although the statute permits a creditor to sue the president or other managing officer, the judgment thus obtained can only be enforced out of the common property. If he desires to enforce his claim against the members individually, he must unite all of them as defendants, no matter how numerous, as in an action against an ordinary firm.* The apparent exception, which existed at the common law, to the general rule requiring all joint debtors to be sued, remains in full force under the new system, so that a dormant partner need not necessarily be included as a defendant ' Briggs 0. Briggs & Vose, 15 N. Y. against both, as they were jointly the con- 471. The defendants, partners, made an tracting parties, express contract with plaintiff to receive ^ Mygatt v. Wilcox, 1 Lans. 55. f rona him a quantity of lumber, and to sell ^ Duncan a. Berlin, 5 Robt. 457. In the same on commission ; the lumber was Kentucky, by statute, a surety who has delivered to and received by them. Before paid the debt or a part thereof may sue any sale, B , one of the partners, retired the principal debtor and the co-surety in from the firm, and the business was there- one action, and recover from the former after conducted by V., who sold tlie lum- the whole amount, and from the latter his ber, and converted the proceeds to his contributory share. Robinson v. Jennings, own use. This action, which was for 7 Bush, 630 ; 2 R. S. 398, ch. 97, § 7. the proceeds, was held properly brought * Kingsland v. Braisted, 2 Lans. 17. DEFENDAMTS JOINTLY LIABLE ON CONTKACT. 357 in an action against the firm, although of course he may be so joined, if the plaintiff elect.^ § 302. I am finally brought to the case where one or more of several joint debtors dies. The common-law rule had been settled from the earliest period that only the survivors could be sued. Equity had modified this legal doctrine, and permitted an action against the personal representatives of the deceased debtor or con- tractor. Has any change in this respect been introduced by the new procedure ? It is now established by a great preponderance of authority, in those States whose codes do not contain the spe- cial provisions concerning joint liability already referred to,^ that these rules, as they existed immediately prior to tlie reform legis- lation, have not been in any manner modified, but remain in ac- tive operation as a part of the present system. The practical result is, upon the death of one or more joint debtors, obligors, or promisors, a legal action can be maintained against the sur- vivors alone, and in such action the personal representatives of the deceased cannot be made defendants for any purpose. An equitable action, however, can be maintained against the adminis- trators or executors of the deceased when, and only when, either the legal remedy against the survivors has been exhausted, or such remedy would be absolutely useless. In such equitable action, therefore, the plaintiff must either aver and prove the recovery of a judgment and the issue and the return of an exe- cution thereon unsatisfied, against the survivors, or else that the survivors are utterly insolvent.^ The rule thus established in 1 North V. Bloss, 30 N. Y. 374 ; Cook- 1 N. Y. Sup. Ct. 645 ; Maples v. Geller, 1 ingham v. Lasher, 2 Keyes, 454 ; Hurlbut Nev. 233, 237, 239 ; Fowler v. Houston, 1 V. Post, 1 Bosw. 28. Even when the dor- Nev. 469, 472 ; Kimball ». Whitney, 15 mant partner is the husband of the osten- Ind. 280, 283 ; Barlow v. Scott's Admin- sible one. Scott v. Conway, 58 N. Y. istrator, 12 Iowa, 63 ; Pecker v. Cannon, 619. 11 Iowa, 20 ; Marsh v. Goodrell, 11 Iowa, 2 See these provisions in the codes of 474 ; Williams v. Scott's Administrator, Missouri, Kentucky, Iowa, Kansas, and 11 Iowa, 475. The last four cases were North Carolina, supra, § 118. all on joint and several notes, and it was 3 "Voorhis v. Child's Executors, 17 held that the rule applied to them as well N. Y. 354 ; Eichter v. Poppenhausen, 42 as to obligations purely joint. It sliould N. Y. 373 ; Pope v. Cole, 55 N. Y. 124 ; be observed that all these Iowa eases were Lane v. Doty, 4 Barb. 534 ; Voorhis v. decided prior to the " revision " of the Baxter, 1 Abb. Pr. 43; Moorehouse v. statutes made in 1860. County of Wa- Ballou, 16 Barb. 289, an action on a joint pello v. Bighara, 10 Iowa, 39; Childs v. and several promissory note against one Hyde, 10 Iowa, 294 ; People v. Jenkins, maker and the executor of the other, held 17 Cal. 500 ; Humphreys v. Crane, 5 Cal. improperly brought. Bentz v. Thurber, 173 ; May v. Hanson, 6 Cal. 642. But in 358 CIVIL REMEDIES. New York and some other States differs from that prevailing in England in a single particular. The English Court of Chancery permits a suit against the personal representatives of the deceased at once, without attempting, much less exhausting, any remedy at law against the survivor. In other words, the creditor has his option at all times to sue the survivors at law, or the representa- tives of the deceased in equity, whether the survivors are solvent or not ; and this doctrine has been adopted in several American States.! § 303. These doctrines and modes of procedure in reference to the enforcing a joint demand when one debtor dies, have not, however, been accepted in all the States which have adopted the new system. In Indiana it is declared to be the true meaning and intent of the provisions of the code abolishing the distinc- tions between legal and equitable actions, and introducing the equitable principles concerning parties, and providing for a sever- ance in the judgment, that upon the death of one or more joint, or joint and several, debtors or obligors, an action will lie at once against the survivors and the administrators or executors of the deceased .2 In certain States, special provisions of the C9des, or Bank of Stockton v. Howland, 42 Cal. 129, Livermore v. Buslinell, 5 Hun, 285 ; Yates an action against tlie survivors and the v. Hoffman, 5 id. 113 ; Hasten v. Black- administrator of a deceased joint debtor well, 8 id. 313 ; Lanier v. Irwin, 24 Minn, was held to be properly brought; the 116; Scholey v. Halsej', 72 N. Y, 578; judgment, however,shouldbesevered,and Cairnes v. O'Bleness, 40 Wis. 469; Jones against the survivors should be de bonis v. Keep, 23 id. 45. "When the joint debtor propriis, and against the administrator de who dies is a mere surety, his estate is ab- bonis testatoris. It was decided in Parker solutely discharged from all liability at V. Jackson, 16 Barb. 33, per Gridley J., law or in equity, — that is, liability to the that an action could be maintained against creditor. Wood v. Fiske, 68 N. Y. 245 ; the survivor and the personal represen- Getty v. Binsse, 49 id. 385, and cases tative of a deceased maker of a, joint and cited; Davis v. Van Buren, 72 id. 587, several note, without alleging or proving 588, 589, and cases cited ; Pickersgill v. the insolvency of the survivor. For the Lahens, 15 Wall. 140 ; but the estate is proceedings when the cause of action is liable to contribution among the co- for a tort, and survives upon the death of sureties, Dussol v. Bruguire, 60 Cal. 456. one of the wrong-doers, see Bondu. Smith, i Wilkinson v. Henderson, 1 My. & K. 6 N. Y. Sup. Ct. 239 ; and when the prom- 682 ; Braithwaite v. Britain, 1 Keen, 219 ; ise is joint and several, see Speyers u. Brown u. Weatherby, 12 Sim. 6, 11. The Fisk, 6 N. Y. Sup. Ct. 197, and cases survivors, however, should be made co-de- cited. When an execution against the fendants. survivors of joint debtors has been re- 2 Braxton v. The State, 26 Ind. 82 ; turned unsatisfied, the action against the Eaton v. Burns, 31 Ind. 390. The former personal representatives of the deceased of these cases is an able and instructive debtor will lie, although it may turn out decision ; the opinion presents the equi- that the survivors were not insolvent, table theory of interpreting the code in a Pope u. Cole, 56 N. Y. 124. See also clear and convincing jnanner. The action DEFENDANTS JOINTLY LIABLE ON CONTRACT. 359 of other statutes, expressly authorize an action to be brought in the first instance against the survivors and the personal repre- sentatives of the deceased joint debtor, or even against some, any, or one of them, at the option of the plaintiff. Such statutory au- thority is found in Ohio,^ lowa,^ Kentucky,^ Missouri.* was against three survivors and the ad- ministrators of tlie deceased obligors on a bond. After stating that there were no special provisions on tlie subject in the Indiana Code (as there are in sotne States) and after quoting tlie sections concerning forms of action, and parties defendant, Elliott, J. proceeds : " It was manifestly the intention of the legislature in the adoption of these provisions to afford as far as possible a simple and direct means of bringing all the parties having an in- terest in the controversy before the court, and of settling all their rights in a single litigation, and thereby to avoid a multi- plicity of suits." It was further held that the bond, though in terms joint and several, was to be regarded as joint, be- cause the plaintiff had elected to- treat it as such. Voorhis v. Child's Ex'rs, supra, was expressly disapproved. In Klussman V. Copeland, 18 Ind. 306, the uniting the administrator of a deceased joint debtor as a co-defendant with the survivor was declared not to be necessary. When a bond had been executed by a guardian and his surety, and the surety had died, the action on the bond may be brought in Indiana against the surviving principal and the heirs of the'deceased obligor, the latter being liable of course to the extent of the lands descended to thera. Voris v. State, ex rd. Davis, 47 Ind. 315, 349, 350 ; and an action may be maintained on an administrator's bond against the surviv- ing principal — the administrator — and the executor of a deceased surety. The bond was assumed to be joint, and the judgment was against both defendants in solido for the full amount. Myers v. State, ex rd. McCray, 47 Ind. 293, 297 ; citing and following Braxton v. State, supra, and Owen v. State, 25 Ind. 107. See also Hays v. Crutcher, 54 Ind. 260. 1 Burgoyne v. Ohio Life Ins. & T. Co., 5 Ohio St. 586, 587. This was an action against the surviving makers and the administrator of a deceased maker of a promissory note. Ranney C. J., after stating the original common-law rule, and quoting a statute of Ohio (Swann's U.S. p. 878) as follows, — " When two or more persons shall be indebted on a joint con- tract or upon a judgment founded upon any such contract, and either of them shall die, his estate shall be liable there- for as if the contract had been joint and several, or as if the judgment had been against hira alone," — proceeds (p. 587): "This statute effected an entire abrogation of the common-law principle to which allusion has been made, and left the estate of the joint debtor liable to every legal remedy as fully as though the contract had been joint and several. Until the passage of the act to establish a code of civil procedure, it is true his personal representatives and the survivors could not be sued in the same action. But by the 38tli section of that act it is provided that ' persons severally liable on the same obligation or instrument may all or any of them be included in the same action at the option of the plaintiff.' And the 371st section allows a several judgment to be given against any one of the defend- 2 Code of Iowa, § 2550. See supra, § 118. Sellon v. Braden, 13 Iowa, 365. This was an ordinary legal action against the administrator of a deceased joint obligor, the survivor living. The court, after quoting § 2764 of the code of 1860 (which is the same as § 2550 of the pres- ent code), and after showing that a suit in equity could have bfen maintained prior to and independently of this statute, added : " We see no reason, therefore, for turning the plaintiff over to his remedy in equity, when that remedy, by a change of statute, has been so modified as to enable the plaintiff to avail himself of it at law." 8 Code of Kentucky, § 39, supra, § 118. 1 Code of Missouri, § 7, supra, § 118. 360 CIVIL REMEDIES. § 304. Although the interpretation put upon the codes in reference to this particular subject by the courts of New York and of many other States is clearly established by an overwhelm- ing weight of authority, I do not hesitate to say that it is as plainly opposed to the obvious intent, and even to the very letter, of the reform legislation. When the statute has in express terms abolished all distinctions between actions at law and suits in equity, has declared that in all cases 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 and settlement of the questions involved, and has finally authorized a several judgment to be rendered in any action, it is simply a palpable violation of these positive pro- visions to say that a creditor shall not maintain a legal action against the personal representatives of a deceased joint debtor, but shall be driven to an equitable suit, and that only in a cer- tain contingency; it is a useless sacrifice to the merest form. I would not be understood by this criticism as denying the exist- ence of the rule, for it is too well settled to be doubted. If, however, the courts shall at any time accept the intent of the legislatures, as it is plainly shown in their statutory work, and shall adopt a general equitable theory of interpretation, which shall be applied in .all cases to all actions without reservation or exception, so that there shall result one single and uniform system of procedure, then without doubt the rule that I am criticising will be abandoned, and the conclusions reached by the Indiana courts will be accepted in all the States. * § 305. IV. Actions upon Contract : Joint and Several Liability. The former doctrine of the common law concerning joint and sev- eral contracts and suits thereon has not been affected by the new procedure, except in those few States, already referred to, whose codes or statutes permit the creditor in all cases to sue all, or any, or one of the debtors or co-contractors. The general Ian- ants as the nature of the case may re- statute upon the death of the joint obli- quire. In the opinion of the court, these gor, and authorize a separate judgment sections permit tlie joinder of the sur- against each according to the nature of vivor or surTiTors and the personal rep- their respective liabilities." The construc- resentatives of the deceased obligor in tion here put upon the Ohio statute is the same action, whether the contract is certainly far more equitable, and in ac- in terms joint and several, or is made so cordance with their intent, than that put by the 90th section of the administration upon the code of New York DEFENDANTS JOINTLY AND SEVERALLY LIABLE. 361 guage found in most of the codes has wrought no change in the practical rules. This proposition is sustained by many of the cases in reference to joint liability, cited under the foregoing paragraphs ; it is also recognized or distinctly affirmed in many particular instances, among which I mention a few. Two in- surance companies had insured a building by separate policies, each of which contained the usual rebuilding clause. Upon the occurrence of a fire, they united in a joint notice of their election to rebuild, and partly completed the work under such notice. Default being made by them, the owner brought an action against one of them to recover damages for the non-performance of the contract to rebuild. It was held that by the election the com- panies had turned their policies into building contracts, and were liable according to the terms thereof, and that the owner might sue both in a joint action, or either in a separate action ; in other words, that their liability was joint and several.^ Premises were leased with covenants against under-letting, and against using the building for certain purposes. The lessee sub-let portions to different under-tenants, who violated the covenants by using them in the prohibited manner. An action against all, — the lessee and the sub-tenants, — to recover damages for the breach of the covenants, was held proper, although it was said the plain- tiff must have a separate judgment against each defendant for the special injury and wrong done by him. A separate action might also have been brought against the original lessee and each of the under-tenants.^ When an express joint and several note is made by a firm, and is signed by the firm name, it retains its joint and several character ; an action may be brought either against all the partners, or against each or one of them.^ In certain States, as has already been mentioned, the express language of the codes permits an action against any number of joint and sev- eral debtors at the plaintiff's option, as well as against any number of joint debtors.* If several defendants are sued jointly upon an 1 Morrell v. Irving Fire Ins. Co., 33 many others which have been cited. See N. Y. 429. Trabue v. McAdams, 8 Bush, 74. 2 Gillilan v. Norton, 6 Robt. 546. The ^ Snow v. Howard, 35 Barb. 55. See ruling ofthe court in respect to a separate O'Gooman v. Lindeke, 26 Minn. 93 (a judgment was based upon § 274(1205, joint and several bond). 1206, 821, 822) of the New York code. < Rose «. Williams, 5 Kans. 483; The entire decision is in closer harmony Board of Commissioners v. Swam, 6 with the plain intent of the code than Kans. 376 ; Kupfer v. Sponhorst, 1 Kans. 362 CIVIL EEMEDIES. alleged joint and several contract, the plaintiff may sever in the recovery, and take judgment against a portion only, if the evi- dence shows such a liability ; and when one of two or more per- sons jointly and severally liable dies, the creditor may at once sue the personal representatives of the deceased in a separate action, or may sue the survivors.^ § 306. V. Actions upon Contract : Several Liability. No change has been made in the common-law doctrines and rules concerning several liability arising from contract, except that produced by the provision found in all the codes in substance as follows. Persons severally liable on the same obligation or instrument, including the parties to bills of exchange, promissory notes, and negotiable bonds, — and in some States, sureties, — may all, or any of them, be included in the same action at the option of the plaintiff. This clause certainly effects a very important change in the ancient rule, in all cases where the liability flows from an instrument or contract in writing, in that it permits a creditor to sue all the several promisors or any number of them, instead of restricting him to a separate action against each.^ The effect of this clause, and the extent of the change wrought by it, will be discussed at large in Section IX. of the present chapter. With this exception, the common-law doctrine is unaltered. In many States it is settled by a decided preponderance of authority, that a principal debtor and a guarantor thereof cannot be joined as co-defendants in the same action. Even when the principal debt is evidenced by a written instrument, and the guaranty is in- dorsed upon the same paper, the parties are not " severally liable on the same obligation or instrument," and do not fall within the provision last above quoted. A separate action must be brought against the principal debtor and against the individual guarantor.^ 75; Eose w. Madden, 1 Kans. 445 ; Sellon Mcintosh v. Ensign, 28 N. T. 169; Har- V. Braden, 13 Iowa, 365; Ryerson v. Hen- rington v. Higham, 15 Barb. 524. drie, 22 Iowa, 480; Clapp v. Preston, 2 gee Powell v. Powell, 48 Cal. 234. 15 Wis. 543. This last case arose under Persons severally liable for different a provision identical with § 120 (454) of items of a general demand cannot be the New York code as to parties severally joined as defendants in one action. Miller liable on the same instrument ; and see v. Curry, 53 Cal. 665. Powell V. Powell, 48 Cal. 234. In Kansas 3 Le Roy v. Shaw, 2 Duer, 626 ; De a personal money judgment against two Ridder v. Schermerhorn, 10 Barb. 638; or more is a joint and several obligation. Allen v. Fosgate, 11 How. Pr. 218 ; Pha- Eead v. Jeffries, 16 Kans. 534. len v. Dingee, 4 E. D. Smith, 379 ; Bon- 1 Speyers v. Fisk, 6 N. Y. Sup. Ct. durant v. Bladen, 19 Ind. 160; Virden v. 197; Parker v. Jackson, 16 Barb. 33; Ellsworth, 15 Ind. 144. See Stout .-. DEFENDANTS LIABLE lOK TOETS. 363 This doctrine does not prevail in all the States. It is held in some, by very able courts, that where the payee or owner of a promissory note transfers the same, and writes a guaranty upon it, he may be sued as a guarantor, together with the maker there- of, in one action ; and the same doctrine has been applied to a similar transfer and guaranty of a contract to pay money not negotiable in form.' In an ordinary action to recover upon a debt due by an insolvent corporation, over which a receiver has been appointed, he is not a necessary, nor even proper co-defend- ant when no cause of action is stated, and no relief is prayed against him.^ §307. W. potions for Torts. The common-law doctrines con- cerning the liability of tort-feasors, and as to the joinder or separation of Ihem in actions brought to recover damages for the wrong, are entirely unchanged by the new system of procedure. It is unnecessary to repeat these ancient rules, since they were fully stated in the former part of this section ; ^ that they are still in operation with their full force and effect is sufficiently shown by the following pai'ticular instances. In general, those who have united in the commission of a tort to the person or to property, whether the injury be done by force or be the result of negligence or want of skill, or of fraud and deceit, are liable to the injured party without any restriction or limit upon his choice of defend- ants against whom he may proceed. He may, at his option, sue all the wrong-doers in a single action, or may sue anyone, or may sue each in a separate action, or may sue any number he pleases less than all ; the fullest liberty is given him in this respect. The only exceptions are those few instances in which the tort from its very nature must be a separate act impossible to be committed by two or more jointly.* A sheriff and his deputy may be sued Noteman, 30 Iowa, 414, 415 ; Tucker 2 Arnold v. Suffolk Bank, 27 Barb. 424. V. Shiner, 24 Iowa, 334. Also Graham v. s gee supra, §§ 281, 282. Elngo, 67 Mo. 324; Burton v. Spies, 5 * Creed w. Hiirtman, 29 N. Y. 591,592, Hun, 60. 597 ; Roberts u. Johnson, 58 N, Y. 613, 1 Marvin v. Adarason, 11 Iowa, 371; 616, an action against one partner only Mix V. Fairchild, 12 Iowa, 351 ; Tucker where the entire firm had been guilty V, Shiner, 24 Iowa, 334 ; Peddicord o. of negligence ; Chester v. Dickerson, 52 Whittam, 9 Iowa, 471. It is to be noticed Barb. 349, 358 ; Phelps v. Wait, 30 N. Y. that in each one of these cases the guar- 78, an action against principal and agent antor was the original payee or promisee, for negligence of the agent; Kasson v. and also the assignor ; but it must be said People, 44 Barb. 347 ; Wood v. Luscomb, that the court does not lay any stress upon 23 Wis. 287, an action against one part- this fact as a ground for its decision. ner for negligence by the firm ; Fay 364 CIVIL REMEDIES. jointly for the trespasses and other wrongful acts done by the latter in his official capacity ; the deputy, because he actually commits the tort, and the sheriff, because he is the principal.^ A passenger in the cars of one company was injured by a colli- sion with a train of another company which used the same track. The servants of both companies were in fault, and as the wrong was caused by the negligence of each corporation, an action brought against them jointly was sustained.^ § 308. In order, however, that the general rule thus stated should apply, and a union of wrong-doers in one action should be possible, there must be some community in the wrong-doing among the parties who are to be united as co-defendants ; the in- jury must in some sense be their joint work. It is not enough that the injured party has on certain grounds a cause of action against one, for the physical tort done to himself or his property, and has, on entirely different grounds, a cause of action against another for the same physical tort ; there must be something more tlian the existence of two separate causes of action for the same act or default, to enable him to join the two parties liable in the single action. This principle is of universal application.^ u. Davidson, 13 Minn. 523; Mandlebaum 405; McVean v. Scott, 46 Barb. 379. As V. Russell, 4 Nev. 551 ; McReady v. Rogers, further illustrations ; — negligence : Vary 1 Neb. 124 ; Murpby v. Wilson, 44 Mo. v. B. C. R. & M. li. R., 42 Iowa, 246 (joint 313; AUred v. Bray, 41 Mo. 484; Brady employers); Van Wagenen v. Kemp, 7 w. Ball, 14 Ind. 317, action for injury done Hun, 328; Mitchell v. Allen, 25 id. 543 by trespassing animals which belonged to (a release of one of the persons jointly several persons jointly ; Turner v. Hitch- negligent releases all) ; trespass : Wehle cock, 20 Iowa, 310, a very elaborate and v. Butler, 61 N. Y. 245 ; Fleming v. Mc- instructive judgment; Buckles u. Lam- Donald, 50 Ind. 278; fraud: Boad v. bert,4Metc. (Ky.) 330; Hubbellu.Meigs, Smith, 4 Hun, 48 (one of the defendants 50 N. Y. 480, 489 ; Mcintosh v. Ensign, dies) ; Hun v. Cary, 82 N. Y. 65 (trus- 28 N. Y. 169; BuUis u. Montgomery, 50 t6es guilty of a tortious breach of trust, a N. Y. 352. Where a right of action for portion of them may be sued — all need tort exists against several, and is of such not be joined) ; nuisance : Cobb v. Smith, a character that it survives upon the death 38 Wis. 2] ; Green v. Nunnemacker, 36 id. of the wrong-doer, if one of the persons 50 ; Pennoyer u. Allen, 50 id. 308 ; Loh- liable dies, the action may be brought or miller v. Indian Water Co., 51 id. 683 ; continued against his personal represen- Hillman v. Newington, 57 Cal. 56. tatlves ; but it is the settled rule in New i Waterbury v. Westervelt, 9 N. Y. York that the action in sucli case must be 598 ; King v. Orser, 4 Duer, 431 ; contra, divided, and one suit be brought or con- Moulton v. Norton, 5 Barb. 286, 296, per tinned against the survivors, and one Pratt J. This dictum is clearly erroneous, against the representatives of the de- ^ Colegrove v. N. Y. & N. H. R, R., ceased. Bond v. Smith, 6 N. Y. Sup. Ct. 20 N. Y. 492 ; Mooney v. Hudson River 239; Heinmuller v. Gray, 13 Abb. Pr. R. R., 5 Robt. 548. N. s. 299; Union Bank u. Mott, 27 N Y. s Trowbridge v. Forepaugh, 14 Minn. 633 ; Gardner u. Walker, 22 How. Pr. 133. F., owning a lot in St. Paul abut- DEFENDANTS LIABLE FOK TORTS. 365 § 309. The general doctrine under examination embraces as well the case of a joint conversion of chattels, as any other in- stance of joint tort to property or person. When two or more have united in the act which amounts to a conversion, or have so interfered with the chattel as to constitute a conversion within the legal meaning of the term, the owner or person having the special property may sue all or one or any, as in the case of any other tort. But there must be a community in the wrong-doing ; the wrongful act must constitute a conversion on the part of all, and in that act all must have engaged. When such is the case, the law does not apportion the responsibility, but holds each liable for the whole amount. If there is no such community, a joint action for the conversion will not lie, and, a fortiori, it will not lie when the defendants have not each been guiltj^ of an act which is a wrongful conversion. ^ ting on a street, dug and left open a dangerous hole in the street, into which the plaintiff fell. He sues the city and F. jointly, basing his claim upon the above acts of F., and upon the gen- eral duty of the city in respect of its streets. The court held tliat such a joint action could not be maintained. " The liability of the city depends on a state of facts not affecting its co-defendant, and the converse is equally true. Neither is, in fact nor in law, chargeable with nor liable for, the matter set up as a cause of action against the other. Tliey did not jointly conduce to the injury." See also Long K. Swindell, 77 N. C. 176; Cogswell V. Murpliy, 46 Iowa, 44 ; Keyes V. Little York Co., 53 Cal. 724 ; Mitchell V. Allen, 25 Hun, 543 (a release of one of several joint tort-feasors releases all). 1 Manning v. Monaghan, 23 N. Y. 539. PlaintiS was the mortgagee of chattels, the mortgagor being entitled to and being in possession during the year the mortgage had to run. Defendant Monaghan recov- ered a judgment against the mortgagor, upon which supplementary proceedings were instituted, and defendant C. was ap- pointed receiver therein. He took the goods from the mortgagor before the year expired, and sold them at auction without notice of the plaintiff's mortgage lien, and purporting to sell them free from any claim. One parcel was sold to defendant G. After the expiration of the year, plain- tiff demanded this parcel from G., and, upon refusal, he brought this action against Monaghan the judgment creditor, C. the receiver, and G. the purchaser, for a conversion, claiming from the first two the whole value of the goods, and from G. the value of the parcel bought by him. Judgment was recovered against all, which was reversed by the Court of Ap- peals ; but the judges who united in the decision did not unite in any reasons therefor ; and nothing was determined by the court. On the new trial, the action was discontinued as to G., and judgment was again recovered against the other two for the value of the goods. This judg- ment was again reversed by the Court of Appeals, which, on the second appeal, de- finitively held that M. and C. were not trespassers, and had not converted the plaintiff's goods. If they were liable at all, it would be in a special action for damages for injury to tlie plaintiff's re- versionary interest. See s. c. 28 N. Y. 585. This final decision was put on the ground that, at the time of the acts done by defendants, the plaintiff had no prop- erty in the goods entitling him to the posses- sion thereof. If the mortgage was then due, and there had been default, or if the plain- tiff had been entitled to possession, the action might perhaps have been main- tainable. 366 CIVIL EEMEDIES. § 310. The same general doctrine, under the same limitations, controls the action of replevin, or detinue, — or to recover pos- session of chattels, which at the common law was regarded as a personal action based upon the tortious act of the defendant, in his wrongful detention or taking of the goods. If, therefore, there is a joint wrongful taking or detention of the goods, the action will lie against the wrong-doers jointly, although one of them may have parted with his actual possession. Thus, where goods had been sold and delivered to a fraudulent vendee, so that the vendor might rescind and retake the chattels, and this vendee had afterwards assigned them to an assignee in trust for creditors, and the possession had actually been transferred to such trustee, an action by the vendor to recover the possession of the goods was held to be properly brought against both jointly, the assignee not being a purchaser for value.^ § 311. The common-law doctrines relating to suits against common carriers are unaltered. Although an action may be brought upon their contract express or implied to carry the goods safely, yet the ultimate ground of their liability is their general dutj% the violation of which is a tort. The usual form of the action under the old system was Case and not Assumpsit. The owner of goods that have been lost or damaged in the carriage may therefore treat the default as a tort, and sue all or any of the parties at his election.^ § 312. A joint liability for an injury may arise from the owner- ship and occupancy of real property. As an example, where the owner of a house had constructed a coal-hole in the sidewalk in such a manner and position as to be dangerous to passers, and had leased the premises to a tenant who used the coal-hole, and a per- son passing on the sidewalk had fallen into it and been injured, both the owner and the tenant were held liable, and a joint action against them was sustained.^ In general, the principal and his 1 Nichols V. Michaels, 23 N. Y. 264. actually served with process, and judg- See, especially, tlie opinions of James J., ment was recovered against them alone, p. 268 et seq., and of Selden J., pp. 270, Although the court rather treated the 271, where the nature of tlie action before action as based on contract, and discussed and since the code is discussed at length, the question, whether in such a case the 2 Mcintosh V. Ensign, 28 N. Y. 169. judgment could be severed, yet the princi- This case does not directly decide the pie of the text was recognized ; and there point stated in the text ; for the action is no pretence that the well-settled corn- was nominally against all the parties, — mon-law rule has been changed. five in number, — while two only were s l^yia v. Wood, 4 Robt. 138, 5 Kobt. DEFENDANTS LIABLE FOE TORTS. 367 agent may be sued jointly for any trespass or other wrongful act done by the agent while acting within the scope of his employ- ment. The agent is personally responsible, because his employ- ment will not shield him from the consequences of his torts, and the principal is liable upon the familiar doctrine of agency. The injured party may of course sue either separately.^ § 313. It has already been said that the general doctrine of the joint and several nature of the liability springing from torts does not obtain in those cases where the injury is essentially a several one, or where, in other words, from its intrinsic character it can only be committed by one person. The most important of this class of torts is slander. No joint action for slander is possible ; but such an action can be maintained for the publication of a libel, as in the very familiar and frequent instance of a news- paper, which contains defamatory matter, being owned and pub- lished by a partnership.^ In the same manner a joint action to recover damages for a malicious prosecution, which is an injury to character, may beyond doubt be brought against two or more persons who united in promoting the judicial proceeding com- plained of. § 314. Although in cases of joint torts the law gives the in- jured party a wide choice to sue all the wrong-doers, or any number, in a single action, or to sue each of them separately, thus bringing as many actions as there are persons, yet it does not permit him thereby to multiply his damages. He can have but one satisfaction. In short, he can collect but one amount of dam- ages out of the many that may have been awarded him in sepa- rate actions, although he is entitled to the costs in each suit.^ If 482; s. c. on appeal, 51 N. T. 224, 230. damage is caused by the negligence of a But see Trowbridge v. Forepaugh, 14 servant of a firm, all or any number of Minn. 133, supra, § 308 (n.). Farther il- the partners may be sued. Roberts c lustrations ; negligent use of land ; Van Johnson, 58 N. Y. 613, 616. "Wagenen v. Kemp, 7 Hun, 328 ; wrong- 2 Forsyth v. Edmiston, 2 Abb. Pr. 4.30. ful diversion of water, Hillman v. New- A quaere is suggested, whether an action ington, 57 Cal. 56 ; nuisance, Cobb v. for slander may not be maintained against Smith, 38 Wis. 21 ; Green v. Nunne- several persons if tlie defamatory words macker, 36 id. 50 ; Pennoyer v. Allen, 50 are uttered in pursuance and as the result id. 308 ; Lohmiller o. Indian Water Co., of a conspiracy among them. This, per- 51 id. 683. haps, may be possible. 1 Phelps V. Wait, 30 N. Y. 78 ; Wright « This doctrine is not confined to cases !>. Wilcox, 19 Wend. 343; Montfort v. of tort; it applies in all instances where Hughes, 3 E. D. Smith, 591, 594; Suy- there have been separate suits or recov- dam M. Moore, 8 Barb. 358 ; Hewett v. erlee against persons who are jointly and Swift, 10 Am. Law. Reg. 505. When severally liable on the same obligation ; 368 CIVIL REMEDIES. he has prosecuted two or more jointly, and the jury has assessed a different sum as damages against each defendant, the plaintiff may enter the judgment against all for either of these amounts which he elects, and of course he would naturally choose the largest. This rule is based upon the notion that the injury is a unit, that one award of damages is a compensation for that injury, and that the defendants are equally responsible as among themselves. A satisfaction of one is therefore operative as to all. Imprisonment under a body execution is regarded by the law as pro tanto a satisfaction ; ^ and if one such judgment debtor, being in imprisonment, is voluntarily discharged therefrom by the cred- itor, the judgment or judgments against all the others are ipso facto satisfied, even though rendered in separate actions, as fully as though the discharge had been by payment.^ satisfaction of one is satisfaction of all, except as to costs ; and if some of tlie actions are pending, payment of one may be pleaded in bar of such pending suits. First National Banli v. Indianapolis, &c. Co., 45 Ind. 5. Where plaintiff has elected to sue severally, and has recov- ered judgment against one, and has is- sued execution thereon, this is a bar to suits, and a discharge of judgments against the others. Fleming v. McDonald, 50 Ind. 278. 1 Koenig v. Steckel, 58 N. Y. 475. 2 Kasson v. The People, 44 Barb. 347. The plaintiff had obtained a judgment against G. and one against R. in a sepa- rate action against each for a joint tres- pass. G. was taken on body execution, and, while in custody, was voluntarily set at liberty by the judgment creditor. The plaintiff afterwards took the other defendant, E., on a body execution in his action. R. applied to a judge by habeas corpus, and was discharged. The Gene- ral Term, on appeal, held this discharge regular, and laid down the doctrines stated in the text. See also McReady v. Rogers, 1 Neb. 124 ; Turner v. Hitchcock, 20 Iowa, 310. The latter case was very extraordinary. The action was for a trespass, and was against six women and their husbands ; and one Johnson was a defendant. Tlie petition alleged that a party of women, of whom the female de- fendants were a portion, made a raid upon the plaintiff's saloon, destroying property therein. The defendants, except Johnson, answered, among other defences, that, since the action was brought, the plaintiff had released the defendant Johnson ; also that one Almira C. was one of the joint trespassers ; and, before the action was brought, the plaintiff and she had inter- married, and were then husband and wife. On the trial, it was proved that plaintiff had released Johnson, but that she had taken no part in the trespasses, and was not liable therefor. The other defence was proved exactly as alleged. Upon these facts, the court held that the release of Johnson did not discharge.the other de- fendants, because she was not, in fact, a joint trespasser. On the second defence, Dillon J., after stating tlie common-law rules concerning joint trespassers, reached the following conclusions : That the code had not changed these former rules ; that separate actions may be brought, separate verdicts given, and judgments rendered, but only one satisfaction ; that the release of one joint wrong-doer dis- charges all ; and, finally, that the marriage of one with the plaintiff operated as a re- lease and discharge. On this last point the court were equally divided ; but they were agreed upon all the other proposi- tions of Judge Dillon's opinion. The case, as a whole, is very instructive, and con- tains a full discussion of the doctrines concerning joint torts, and a review of all the leading authorities. See also Mitchell V. Allen, 25 Hun, 543. DEFENDAl^TS IN MISCELLANEOUS CASES. 369 § 315. VII. Actions — generally founded upon Statutes — in the Settlement of Deceased Persons' Estates. In many, if not all States, actions are authorized by statute, in the matter of settling the estates of deceased persons, -which were unknown at the common law, as, for example, an action by a legatee to recover his legacy. It is not within my purpose to inquire when such actions may be brought, but simply to ascertain what special rules, if any, have been laid down in reference to the proper parties therein. A statute of New York requires the heirs of an intestate who have inherited lands under certain specified circumstances, to be sued jointly and not separately for a debt due from the deceased, the land in their hands being regarded as a fund upon which the debt is chargeable and out of which it is to be paid. It has been held that this statute does not make the heirs jointly liable as joint debtors, but that it merely prescribes a mode of enforcing the demand out of assets which have descended to them.' In an action by a residuary legatee against the executor to recover the amount claimed to have been given by the will, all persons inter- ested in the residue must be joined as co-defendants with the executor, and if a legacy is charged upon lands, the devisees must also be made parties.^ When a creditor seeks to recover his demand against the estate, his suit should be prosecuted against the executor or administrator alone ; the widow, heirs, legatees, next of kin, and creditors, are neither necessary nor proper par- ties defendant. This was the universal rule under the former system ; and although the code has enacted the equitable doc- trines concerning parties, and has made no exception in their application to different actions, it has not changed the procedure in this particular. The administrator or executor represents the estate ; is a trustee for all the parties who are interested in its distribution ; and his defence is their defence. He is bound to interpose all necessary and available answers to demands made upon the estate, and the law presumes that he will faitl)fully per- 1 New York Laws of 1837, p. 537, § 73 ; Tooley, 38 Barb. 598, as to the necessary Kellogg V. Olmsted, 6 How. Pr. 487. defendants in an action upon an adminis- Also Selover v. Coe, 63 N. Y. 488. tration bond by legatees wliose legacies 2 Tonnelle o. Hall, 3 Abb, Pr. 205. are charged upon the lands of the de- Such an action, although it may be au- ceased. For special case of action by a thorized by statute, is in all its features legatee against executors, see Wheeler v. equitable ; and the equity rules as to Bottom, 54 Cal. 302. parties must control it. See Towner v. 24 370 CIVIL EEMEDIES. form this duty. The general language of the codes certainly does not require a greater latitude in the admission of parties defendant who are interested in the event of the suit than, was demanded by the practice of the equity courts. It has not there- fore been so construed as to make the widow, heirs, legatees, and others necessary or proper defendants, although they may seem to be interested in the result of the controversy .^ The same is true even when the testator has bequeathed all his property, real and personal, to a single legatee ; the creditor must pursue his claim against the executor, and not against the legatee.^ Although, in general, an action to recover a debt or demand due to the estate must be brought by the administrator or executor alone, yet in some exceptional instances such suit may be instituted and prosecuted by a legatee or distributee, when the adminis- trator or executor is incapacitated from suing.^ § 316. VIII. Some Special Actions not included in either of the Foregoing Classes. In New York, an action against a county should be brought against " The Board of Supervisors " of the specified county, and not against the supervisors individually or by name.* A suit may be maintained between two firms having 1 Nelson v. Hart, 8 Ind. 293, 295. The fendants. Flack . Killeen, 53 N. Y. 93 ; Adams v. Honness, 62 Barb. 326. 1 These propositions are the final re- sults at which tlie New York courts hare arrived through a, long and progressive series of decisions. Maxon v. Scott, 55 N. Y. 247 ; Hier v. Staples, 51 N. Y. 136 ; Hinckley v. Smith, 51 N. Y. 21 ; Frecking V. Holland, 53 N. Y. 422, 426. " A gen- eral complaint in an action against a mar- ried woman is proper. The law makes her liable as a feme sole if the contract was made in her separate business or in relation to her separate estate. If the contract sued upon is not one she is au- thorized to make, the objection should be taken by answer and raised upon the trial." Poster v. Conger, 61 Barb. 145, 147 ; Ainsley v. Mead, 3 Lans. 116 ; Per- kins V. Perkins, 62 Barb. 531. If a wife, having property, and living with her hus- band and family, buy goods, groceries, and the like, for the use of the family, and promises to pay their price, but does not expressly charge the payment upon her property, neither she nor her prop- erty is liable. Baken v. Harder, 6 N. Y. Sup. Ct. 440; Weir v. Groat, 6 N. Y. Sup. Ct. 444. A married woman who has a separate estate, and employs a lawyer to render services beneficial to it, thereby charges her property with the payment of his compensation, although there was no express agreement to charge. Blanke v. Bryant, 55 N. Y. 649. Where a wife had executed a note which expressly charged her separate property, and recited that the consideration was for the benefit of her said property, but in fact these recitals were entirely false, and the note was ob- tained from her by duress, and was used solely for the benefit of her husband, it was held, in New York, that no action ' could be sustained upon it even by a lona fide holder; the court took the broad ground that such notes are not commer- cial paper, and are not governed by the rules of the law merchant. Loomis v. Ruck, 56 N. Y. 462. For additional cases, illustrating the New York rule In refer- ence to the wife's contracts made in con- nection with her property, see Corn Ex. Ins. Co. V. Babcock, 42 N. Y. 613 ; Yale v. Dederer, 18 N. Y. 265 ; 22 N. Y. 450, which Is superseded by subsequent decisions ; Owen V. Cawley, 36 N. Y. 600; Carpenter I'. O'Dougherty, 50 N. Y. 660 ; Garretson u. Seaman, 54 N. Y. 652 ; Newell v. Rob- erts, 54 N. Y. 677 ; Fowler v. Seaman, 40 N. Y. 692 ; Quassaic Bank v. Waddell, 3 ACTIONS AGAINST HUSBAND AND WIFE. 377 § 323. It is held, however, in several States, that in pursuance of the express language of their statutes, the husband is a necessary party defendant, even in all actions against the wife which concern her separate property. This construction is not based upon any interest which he has in the subject-matter of the controversy, but upon the peremptory terms of the statutory pro- visions which require such joinder.^ N. Y. Sup. Ct. 680 ; Miller v. Hunt, 3 N. Y. Sup. Ct. 762 ; Kelty v. Long, 4 N. Y. Sup. Ct. 163 ; Bogert v. Gulick, 65 Barb. 322 ; Warner v. Warren, 46 N. Y. 228 ; Manhattan B. & M. Co. v. Thompson, 58 N. Y. 80. Contracts between the wife and husband. She may become his creditor, and maintain an action to recover the debt. Woodworth v. Sweet, 44 Barb. 268 ; 51 N. Y. 8; McCartney v. Welch, 44 Barb. 271 ; Savage v. O'Neil, 44 N. Y. 298 ; Jay- cox V. Caldwell, 51 N. Y. 395. If tlie hus- band gives a note to liis wife during the marriage, no action can be maintained on it by her against him or his representa- tives after his death, simply because there is no consideration : Whitaker o. Wliita- ker, 52 N. Y. 368 ; but if there is a con- sideration for the note, or if it is given by him in contemplation of marriage, she can enforce it by suit. Wright v. Wright, 64 N. Y. 437 ; Banfield v. Rumsey, 4 N. Y. Sup. Ct. 322. The following are the most important among the recent N. Y. decisions : Williamson o. Dodge, 5 Hun, 479 ; Covert v. Hughes, 8 id. 305 ; Gossman v. Cruger, 7 id. 60; Hill v. Tlos- selle, 6 id. 631 ; McVey v. Cantrell, 6 id. 528 ; 70 N. Y. 295 ; Conlin v. Cantrell, 64 N. Y. 217 ; Smith v. Dunning, 61 id. 249 ; Cushman v. Henry, 75 id. 103 ; Tiemeyer V. Turnginst, 85 id. 516 (very important case ; she is liable on any contract of pur- chase although she had no separate prop- erty at the time she entered into the con- tract) ; Woolsey v. Brown, 74 id. 82 (liable as a surety) ; Nash v. Mitchell, 71 id. 199. In California, under the Civil Code, the liability of a married woman on her contracts is substantially the same as in New York and Iowa, except that her husband must be joined as a co-defendant in suits upon them. See Wood v. Orford, 52 Cal. 412; Parry v. Kelly, 52 id. 334; Marlow v. Barlew, 53 id. 466 ; Tobin v. Galvin, 49 id. 34. 1 Oatman v. Goodrich, 15 Wis. 589. The action concerned tlie wife's separate property, and she was made a defendant vfithout her husband. Dixon C. J. said (p. 593), after stating the common-law rules, and the statutes which take away all the husband's interest in the wife's property: " The statute — R. S. ch. 122, § 16 — reads as follows : ' Wlien a married woman is a party, her husband must be joined except that, (1) when the action concerns her separate property, she may sue alone ; (2) when the action is between herself and her husband, she may sue or be sued alone.' This language is plain and unambiguous, and the case is not within the exceptions. The husband must therefore be joined. It is idle in such cases to look for the reason of the law, or to some other statute founded upon more rational principles for an ex- cuse to evade the act in question." To the same effect are Owsley v. Case, 16 Wis. 606 ; Wolf v. Banning, 3 Minn. 202, 204, per Flandreau J. " There is but one instance in which a married woman can appear without either her husband or her next friend, and that is when the action is between herself and her hus- band. When she is plaintiff in an action concerning her separate property, it is optional with her whether or not she will join her husband — she may sue alone." The statute is the same as in Wisconsin, except that It requires the wife to appear by a next friend. This opinion is ex- haustive and valuable. See also Mav- rich V. Grier, 3 Nev. 52. In Iowa, a wife may be sued alone upon her contracts made in relation to her separate property. Mitchell V. Smith, 32 Iowa, 484, 487. If she has separate property, she may bind it by an ordinary bond and mortgage, executed for any purpose. First Nat. Bank of I"t. Dodge v. Haire, 36 Iowa, 443; Patton o. Kinsman, 17 Iowa, 428. 378 CIVIL REMEDIES. § 324. The rule which prevails in Indiana, in reference to the personal liability of a married woman upon her contracts, has been recently settled by a series of very able and well-considered decisions. Her common-law disability to enter into contracts generally still remains in that State. She can only . create ani equitable liability of her separate property, resulting from some- thing which operates as a specific charge upon it ; and this charge can only be produced by an expressed intention, on the part of the married woman, to impose such a lien. The wife must therefore, by her contract, intend to charge her separate property, and the complaint must allege such an intent. A contract entered into by her upon -the credit of her property is not sufficient to sustain the equitable action to reach her property. It follows, therefore, that the contract must be special in its form, and must expressly state her intention to charge the payment thereof upon her estate. It can then be enforced, not by a personal action and pecuniary judgment against her, but by a purely equitable suit and a judg- ment in rem against the property.^ Where a husband, with his wife's knowl- edge and consent, purchased materials on credit, to be used in improving lier sep- arate property, and they were so used witli her consent, she being fully aware that they were not paid for, her separate estate became chargeable for the price. Miller v. Hollingsworth, 36 Iowa, 163. In California, a married woman cannot bind herself by contract generally, so that a personal judgment can be obtained against her. Under a. statute passed in 1850, she could create an equitable charge upon her separate estate, real or personal, only by means of a writing executed in the manner therein prescribed. Maclay V, Love, 25 Cal. 367 ; Love u. Watkins, 40 Cal. 547, 558. In 1862 this statute was amended and confined to her separate real estate, so that she may charge her separate personal estate by means of any contract, which according to the doctrines of equity, creates an equitable lien upon it. Terry v. Hammonds, 47 Cal. 32. In Missouri, if a married woman has a sep- arate property for her sole use, and exe- cutes a promissory note or any other promise to pay money, it will be pre- sumed that she intended thereby to charge the separate estate with its pay- ment ; and it makes no difference what may be the form of the promise. De Baun V. Van Wagoner, 56 Mo. 347, 349. In Ohio, it seems, a married woman can enter into no contracts not connected with or relating to her separate property. Swasey v. Antram, 24 Ohio St. 87. The ordinary equity doctrine, as to the wife charging her separate estate, prevails in Nebraska, McCormick v. Lawton, 3 Neb. 449 ; and in Oregon, Kennard v. Sax, 3 Oregon, 263, 267. See also Cecil v. Smith, 81 N. C. 285 ; Young v. Greenlee, 82 id. 246 ; Ross . Reed, 12 Kans. 223,228. Owner of the ing Denton v. Nanny, 8 Barb. 024; Mills land is a necessary defendant, and the "v. Van Voorhies, 20 N. Y. 415; and Story's objection on account of his omission may Eq. PI. §§ 72, 76 a ; Union Bank v. Bell, be taken by the mortgagor in his answer. 14 Ohio St. 200. Where a mortgagor had The fact that the deed from the mort- conveyed the land to assignees in trust gagor to this owner was not put on record for his creditors, it was held, in an action at the time of commencing the action to foreclose the mortgage in which the makes no difference in the application of mortgagor and the assignees were made this rule. Drury v. Clark, 16 How. Pr. defendants, that judgment creditors of 424. The mortgagor who has conveyed the mortgagor whose judgments were re- away the land to a grantee who assumed covered subsequent to the assignment to pay the mortgage debt, and who is made were proper defendants, and could set up a defendant, is not a necessary party. Mc- usury in the mortgage as a defence there- Arthur V. Franklin, 15 Ohio St. 485, 509 ; to ; that the trustees could set up such a DEFENDANTS IN FOEECLOSUEE SUITS. 389 of the premises, he is of course, on every account, a necessary defendant. If, however, he has conveyed away the entire land defence, and these cestuis que trustent could do the same. Brinkerhoffi J., after quot- ing the section of the code relating to de- fendants, said: ''These creditors have an interest in the controversy adverse to tlie plaintiff, and they are therefore proper parties defendant." See this case at large. Delaplaiue v. Lewis, 19 Wis. 476. A mortgagor who has absolutely con- veyed away the land is not a necessary defendant. Cole J. (p. 478): "Accord- ing to the weight of modern authority, the rule seems to be settled that the mort- gagor who has absolutely parted with tlie equity of redemption is not a necessari/, though he is a very proper, defendant in an action to foreclose the mortgage ; " citing Bigelow u. Bush, 6 Paige, 343; Shaw o. Hoadley, 8 Blackf. 165; Van Nest v. Latson, 19 Barb. 604 ; Drury v. Clark, 16 How. Pr. 424 ; Story's Eq. PI. 197 ; Cord V. Hirsch, 17 Wis. 403. The owner of the land is a necessary defendant. Green v. Dixon, 9 Wis. 532. See this case for a general discussion of the entire doctrine as to parties in foreclosure suits. Nichols V. Randall, 5 Minn. 304, 308, per Emmett C. J. When the mortgage debt is secured by the obligation of any person other than the mortgagor, the plaintiff may, in Min- nesota (by express statute), make such other person a defendant in the foreclo- sure suit, and the court may decree against him for any deficiency. " The plaintiff in an action to foreclose may make any one a party defendant who has or claims to have, through the mortgagor, any in- terest in the mortgaged premises, and the mere fact that the relief asked against him is different from that asked against the mortgagor or other defendant can make no difference." Wolf v. Banning, 3 Minn. 202, 204. When a mortgage is given by a husband and wife on land wliich is the wife's separate property, the husband is a necessary party because of his interest as husband, and because of his liability on the note or other evidence of debt in which he joined, for any defi- ciency. Mavrich v. Grier, 3 Nev. 62. A trustee of a married woman gave a mort- gage for the purchase money of land which he held in trust. An action to fore- close was brought, and it was held that the married woman and her husband, as well as tlie trustee, were necessary de- fendants. Beatty C. J. (p. 57) : " It seems to be well settled that, in a bill to foreclose a mortgage against a trustee, the ceslui gue tnist must be made a party. Story's Eq. PI. §§ 207, 209. The wife, tliough not a party to the mortgage, was a. neces- sari/ defendant When a married woman is a necessary defendant, it seems equally clear that the husband should also be a party to the suit and joined witli her, un- less his interest is adverse, when he might be made a plaintiff." This ruling as to the husband would certainly not be followed in those States which have completely separated the interests of the husband and the wife in respect of f.er own property. Thornton v. Pigg, 24 Mo. 249; Riddick V. Walsh, 15 Mo. 538. In an action to foreclose a mortgage executed by a hus- band and wife, the wife is not a necessary defendant in Missouri. Miles u. Smith, 22 Mo. 502. In same State, when the mortgagor is dead, his personal represen- tatives are necessary defendants with his heirs and widow. Fletcher v. Holmes, 32 Ind. 497; an action on a purchase-money mortgage, in whicli the wife of mortgagor did not join ; she was not made a defend- ant. Elliott J. held, (1) that, under the Indiana statute, the wife takes her dower as the statutory heir of her husband, and not under the common law ; she takes in fee, and without assignment. (2) That, in case of a purchase-money mortgage, she has no right to redeem either as wife or widow, and is not a proper party ; she is cut off by the decree and sale, even though not a party. Mills v. Van Voor- hies, 20 N. Y. 412, is expressly repudiated. Frazer J. dissented entirely from this rea- soning and from the conclusion, adopting the doctrine of the New York case just mentioned. Gregory C. J. dissented from the reasoning, liolding that, when the mortgaged premises do not exceed in value the amount of the debt, the wife has no right of redemption; but when they do so exceed the debt, she has such right. 390 CIVIL EEMEDIES. by an absolute deed of conveyance, the grantee, who is the owner at the time of commencing the suit, is a necessary party defenJ- Thisoase does not seem, therefore, to de- cide any rule definitively. Chambers, v. Nicholson, 30 Ind. 349. When the ordi- nary mortgage — i. . Parish, 53 N. Y. 488, Schedule, § 9. 490, 491. INTERVENTION. 467 it, and may make himself a party to an action, he need not be a necessaiy party .^ The granting of such an application lies in the discretion of the court, and it should not be permitted if the applicant is already a plaintiiff in another suit in which he may obtain all the relief he asks.^ The application must be made before judgment, if made at all.^ § 424. The occasions on which a third person may intervene in a pending action are very few. The scope of the provision is exceedingly limited ; it has been said that its operation is con- fined to those cases in which a bill of interpleader would have been permitted, under the former practice, to accomplish the same end.* It is certain that the right to intervene can only be exercised in actions for the recovery of real or personal property.^ It does not exist, therefore, in an action to recover money ; as, for example, in a suit for wharfage, persons claiming to be owners of the wharf were not permitted to intervene ; ^ nor in an action in the nature of a creditor's suit, to reach a surplus of money in certain persons' hands ; ^ nor in an action to dissolve .a partner- ship, and for an accounting ; ^ nor in any action on contract for the recovery of debt or damages.^ In an action to recover pos- session of goods, on account of the vendee's fraud, third persons, claiming to have purchased them from him, cannot intervene.'*' This ruling, however, is not based upon the nature of the suit itself, but upon the absence of any rights in the proposed inter- veners. § 425. The following are some instances in which an interven- tion has been permitted. In an action for the partition of lands, any person having an interest in the land may intervene ; but when the partition is among the heirs and devisees of a deceased owner, a judgment creditor of such decedent has no such interest nor right.i^ In an action to recover land, a landlord may inter- 1 Carter v. Mills, 30 Mo. 432. 9 How. Pr. 508 ; Judd v. Young, 7 How. 2 Scheldt V. Sturgis, 10 Bosw. 606. Pr. 79. 8 Carswell v. Neville, 12 How. Pr. « Kelsey v. Murray, 18 Abb. Pr. 294. 445. ' Tallman v. Hollister, 9 How. Pr. 508. * Hornby v. Gordon, 9 Bosw. 656. The 8 Dayton v. Wilkes, 5 Bosw. 655. following cases are illustrations of such ' Judd v. Young, 7 How. Pr. 79. intervention ; Sims v. Goethe, 82 N. C. w Hornby v. Gordon, 9 Bosw. 656. 268 ; Peck v. Parchin, 52 Iowa, 46 ; Peo- " Waring v. Waring, 3 Abb. Pr. 246. pie I,. Albany, &c. R. R., 77 N. Y. 232; See Baker v. Riley, 16 Ind. 479, which Conant v. Prary, 49 Ind 530. holds that a person claiming title to the 6 Kelsey v. Murray, 28 How. Pr. 243; whole land should not be permitted to 18 Abb. Pr. 294 ; Tallman v. Hollister, intervene in a partition suit. 468 CIVIL REMEDIES. vene when his tenant only has been made a defendant ; ^ and in an action to recover the possession of goods taken on execution, the execution creditor may intervene.^ In a suit to compel the specific performance of a contract to convey land against the vendor alone, a third person alleging title in himself to the same land from the same vendor, prior and paramount to that of the plaintiff, was allowed to intervene and to defend. It was said that the intervener need not be a necessary party, but should be permitted to come in if the judgment as between the original parties would cast a cloud upon his own title.^ Under the for- mer practice, no intervention was ever permitted in actions at law, except that in ejectment the landlord might make himself a defendant in place of his tenant.* § 426. The Iowa and California System of Intervening. The peculiarities of this proceeding, the extent of its innovations upon all prior methods, and its usefulness in procuring controversies to be decided on their merits in a single action, will be best shown by detailing the facts of one or two cases in which it has been resorted to. An action in the usual form was brought by A., the payee of two promissory notes made by B., in which B. made no defence. At this stage of the cause C. filed a petition of in- tervention, alleging the following facts: Before the giving of these notes, B. was indebted in the amount thereof to one D., and was not indebted at all to the plaintiff; that the plaintiff A. caused B. to execute and deliver to him these notes, and the consideration thereof was B.'s said indebtedness to D. ; that A. had no authority to take these notes in his own name, but they should have been given in the name of D. ; that D. is dead, and the intervener C. is his administrator; that the notes belong really to the estate of D., and the plaintiff has no interest in them, except that the legal title is in him. The petition prayed 1 Godfrey v. Townsend, 8 How. Pr. its proceeds, and to recover thereon as 398. against the maker, who was the original 2 Conklin v. Bishop, 3 Duer, 646. defendant. This is certainly identical 8 Carter v. Mills, 30 Mo. 432. In with the system which prevails in Iowa Summers v. Hutson, 48 Ind. 228, a third and California. This intervention was person was permitted to intervene in an permitted under the general provision of action upon a promissory note, to make § 18, that " any person may be made n. himself a defendant, to set up in his an- defendant who has an interest in the con- swer facts showing that he was the real troversy adverse to the plaintiff." party in interest, and the equitable owner * Hornby u. Gordon, 9 Bosw. 656 ; of the note, and the one solely entitled to Godfrey v. Townsend, 8 How. Pr. 898. INTERVENTION. 469 that the intervenor might become a party plaintiff, and that judgment might be rendered in his favor as administrator for the amount of the notes against B., the maker thereof. To this peti- tion the original plaintiff A. demurred, and the Supreme Court of Iowa held that the case was a proper one, within the sj'stem established in that State, for an intervention, and that upon the facts alleged in the petition the intervenor was entitled to judg- ment.^ In another case, A., claiming to be assignee of a note and mortgage executed to B. as the payee and mortgagee, com- menced an ordinary action for a foreclosure. Thereupon C. filed a petition of intervention as administrator of B., the mortgagee, in which he denied that the note and mortgage had ever been assigned to A., denied that the latter had any interest or right therein, and averred that they were assets of the estate of his intestate B., and prayed for judgment in his own favor of fore- closure and sale against the mortgagor and other defendants. Upon a demurrer to this petition, the Supreme Court of Cali- fornia held that the intervention was entirely within the intent and the letter of the statute, and that the intervenor should have judgment.^ Again, in an action commenced to foreclose a mort- gage given (together with a note) by a corporation which had become insolvent, certain judgment creditors of the company intervened, alleging fraud in the execution of the note and mort- gage by the defendant, and that they were void as against its creditors ; and praying that they might be adjudged void, and the action to foreclose be dismissed. The intervention of these judgment creditors was sustained, but it was held, at the same time, that simple contract creditors had no foundation for an intervention, since they could not dispute the mortgage.^ § 427. Such being some illustrative examples of the circum- stances and facts to which this free and enlarged system of inter- vening has been applied, it remains to state the principles which 1 Taylor v. Adair, 22 Iowa, 279. See of the peace, plaintiff had a judgment. Summers v. Hutson, 48 Ind. 228. E. appealed to the circuit court, where - Stich V. Dickinson, 38 Cal. 608. the whole matter was re-tried. Pending 3 Horn V. Volcano Water Co., 13 Cal. the second trial, two other persons, W. & 62. In proceedings to collect an execution C, intervened, alleging that E. and wife against E., the plaintiff garnished one had assigned this debt to them, and they Clark as a debtor of E. Clark admitted a recovered judgment upon the trial. The debt of $300. but E. denied that it was plaintiff appealing, this intervention was due to himself, and alleged that it was held proper under § 3237 of the Eevision. due to his wife. On trial before a justice Daniels v. Clark, 38 Iowa, 656. 470 CIVIL REMEDIES. guide the courts in its application, and which are embodied in the system itself. In making this explanation, I shall use, as far as possible, the very language of the courts. In the first of the three cases cited in the last paragraph — Taylor v. Adair — the Supreme Court of Iowa said: "To the lawyer not thoroughly conversant with the sweeping and radical changes in procedure and practice made by the Revision, the proposition that such an intervention as that sought in the present instance is allowable, V7ould be not a little startling." The general notions which lie at the foundation of the new sj^stem of procedure are sketched, and are shown to be in harmony with the thought which finds an expression in the provision respecting intervention. " A de- sign to avoid needless multiplicity of actions is everywhere ap- parent in the present system of procedure. Consonant with the other provisions of this sj'stem are those governing and regu- lating the rights of third parties to intervene in a pending action. Applying the section of the code (§ 2683) to the case in hand, we first inquire whether C, as the administrator of D., has ' an interest in the matter in litigation.' What was the matter in litigation? Clearly the debt which B. owed. We say the debt rather than the note, for the debt is the substance of which the note is simply a memorandum or visible evidence. Now this debt is alleged, and on the record admitted, to be owing by B. to D., and not to the plaintiff. If D. or his administrator had possession of the notes, though they are made payable to the plaintiff A., he might, on showing his ownership, sue thereon in his own name.^ So, although the plaintiff A. might sue in his own name on the notes, they being made payable to him, yet if they were in reality the property of D., the maker might avail himself of any defence he might have against D. These con- siderations are advanced to illustrate how thoroughly the law penetrates beyond names and forms and externals into the very substance and kernel. Now, if the plaintiff succeeds, he recovers that which, on the assumption of the truth of the petition of intervention, belonged to another ; that which D. or his repre- sentative may sue him for and compel him to pay. He may be insolvent. He may, if he recover the judgment, assign it. Why should the real owner of the debt not have the privilege of com- ing into court, and, on establishing as against the plaintiff the 1 Cottle V. Cole, 20 Iowa, 481. INTERVENTION. 471 right to the debt, directly recover it in his own name? This avoids multiplicity of actions, consequent delay, and augmented costs. It may, as above suggested, be the only protection against the insolvency or fraud of the plaintiff. We are not prepared to admit the truth of the proposition advanced in support of the demurrer, that the interest of D. is of such a nature that it could be asserted only in a court of equity. Nor are we prepared to admit the further proposition that in a legal action an intervener's interest in the matter in litigation must be a legal interest, to entitle him to the benefit of the statute. We conclude by an- nouncing it as the opinion of the court that this is a case in which the applicant has shown that he has ' an interest in the matter in litigation against both parties,' — a case in which he demands something adversely to both plaintiff and defendant. This interest is adverse to the plaintiff, as he claims against him the amount of the note and debt. His interest is adverse to the defendant, since he claims to recover against him a judgment for the amount of the note." ^ § 428. The same principles of interpretation have been adopted by the Supreme Court of California. In the case secondly cited — Stich V. Dickinson — it said : " The intervention in this case comes within the last category of either [that is, where his interest is adverse to both of the original parties]. The inter- vener certainly has no interest in common either with the plain- tiff or the defendant ; but we think he has an interest in the matter in litigation adverse to both within the meaning of the section referred to. He has an interest against the pretension of the plaintiff to be owner of the note and mortgage, and to have a decree of foreclosure for his benefit, and against the defendant for the collection of the debt. The subject-matter of the litiga- tion is the note and mortgage, and the right of the plaintiff to have a decree of foreclosure and sale. The intervener claims as against the plaintiff that he and not the plaintiff is entitled to the decree of foreclosure ; and as against the defendant, that the mortgage debt is due and unpaid, and that he is entitled to a foreclosure. In this case the intervener claims the demand in 1 Taylor v. Adair, 22 Iowa, 279, 281, very accurate and complete, and his sim- per Dillon J. Judge Dillon's summary of pie enumeration is an unanswerable argu- the leading and essential features con- ment in favor of the reform, tained in the new system of procedure is 472 CIVIL REMEDIES. suit, viz., the note and mortgage, and we can perceive no reason founded on the policy of the law, which should preclude the settlement of the whole controversy in one action." ^ § 429. In Howe v. Volcano Water Co., the same court said : "The petition of the creditor K. does not disclose any right on his part to intervene ; it shows that he was a simple contract creditor, holding obligations against the company, but it does not show that any portion of them are secured by any lien on the mortgaged premises. His intervention is only an attempt of one creditor to prevent another creditor from obtaining judgment against the common debtor, — a proceeding which can find no support either in principle or authority. The interest mentioned in the statute which entitles a person to intervene in a suit between other parties, must be in the matter in litigation, and of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. The provisions of our statute are taken substantially from the code of procedure of Louisiana, which declares that 'in order to be entitled to intervene, it is enough to have an interest in the success of either of the parties to the suit;' and the Supreme Court of that State, in passing upon the term 'interest,' thus used held this language : ' This we suppose must be a direct interest by which the intervening party is to obtain immediate gain or suffer loss by the judgment which may be rendered between the original parties ; otherwise the strange anomaly would be introduced into our jurisprudence of suffering an ac- cumulation of suits in all instances where doubts might be enter- tained or enter into the imagination of subsequent plaintiffs, that a defendant against whom a previous action was under prose- cution might not have property sufficient to discharge all his debts. For as the first judgment obtained might give a prefer- ence to the person who should obtain it, all subsequent suitors down to the last would have an indirect interest in defeating the action of the first.' 2 To authorize an intervention, therefore, the interest must be that created by a claim to the demand or some part thereof in suit, or a claim to or lien upon the property or some part thereof which is the subject of litigation. No such claim or lien is asserted in the petition of R., and his right to 1 Stich V. Dickinson, 38 Cal. 608, per Crockett J. 2 Gasquet v. Johnson, 1 Louis. K. 431. INTERVENTION. 473 intervene in consequence thereof fails.^ The petition of S. and others stands upon a different footing. It sliows that they were judgment creditors having liens by their several judgments upon the mortgaged premises at the time of the institution of the suit. As such, they V7ere subsequent incumbrancers and necessary parties to a complete adjustment of all the interests in the mort- gaged premises, though not indispensable parties to a decree 1 Brown v. Saul, 4 Martin, N. s. 434. I have collected in this note the important Louisiana cases on the subject of inter- vention. Brown v. Saul, 4 Martin, n. s. 434; Gasquet v. Johnson, 1 Louis. 425, 431. In an action by a creditor against his debtor with or without an attachment, other creditors cannot intervene on the mere ground of the debtor's insolvency and the consequent insufficiency of his property to pay all his debts ; they have not the interest required by the statute. Norris's Heirs v. Odgen's Executors, 11 Martin 455, 460 ; Kenner's Syndic v. HoUiday, 19 Louis. 154, 165; Ardry's Wife V. Ardry, 16 Louis. 264, 268 ; Shields V. Perry, 16 Louis. 463, 465 ; McMillen v. Gibson, 10 Louis. 517, 518 ; Raspillier v. Brownson, 7 Louis. 231, 232; Fearing V. Ball's Executors, 6 Louis. 685, 690 ; Emerson v. Eox, 3 Louis. 178, 182. An intervener cannot assail the sufficiency of the plaintiff's attachment proceedings. Curtis u. Curtis, 8 Louis. 513, 515. In partition between co-owners, a third per- son claiming to own the entire property in opposition to all the other parties cannot intervene to establish his title. Field V. Mathison, 3 Rob. 38 ; Tutorship of Hackett, 4 Rob. 290, 296; Harrod v. Burgess, 5 Rob. 449; V5^hittemore v. Watts, 7 Rob. 10 ; West v. His Creditors, 8 Rob. 123 ; Jones v. Jenkins, 9 Rob. 180 ; Succession of Baum, 11 Rob. 314, 322 ; Hazard v. Agricultural Bank 11 Rob. 326, 336. When property of the defend- ant is attached or otherwise seized in the suit, third persons claiming to own it, or to have a prior lien on it, may intervene. See Yale v. Hoopes, 12 La. An. 460; Danjean v. Blacketer, 13 La. An. 595 ; Ganes v. Page, 15 La. An. 108 ; White V. Hawkins, 16 La. An. 25; Yale v. Hoopes, 16 La. An. 311 ; Letchford v. Jacobs, 17 La. An. 79; Ledda v. Maumus, 17 La. An. 314; Field v. Harrison, 20 La. An. 411 ; Fleming v. Shields, 21 La. An. 118 ; Beckwith v. Peirce, 22 La. An. 67 ; Michel V. Sheriff, &c., 23 La. An. 53. But such intervener cannot dispute the regularity of the attachment proceedings. Yeatman V. Estill, 3 La. An. 222 ; Fleming v. Shields, 21 La. An. 118. And when the attached property has been released on a bond, a third person cannot intervene to claim it. Wright W.White, 14 La. An. 590 ; Burbank V. Taylor, 23 La. An. 751. In actions to establish title, and to recover possession of land or chattels, third persons claim- ing to be owners as against both plaintiff and defendant may intervene. This is a very common form. See Haydel v. Bate- man, 2 La. An. 755; Phelps v. Hughes, 1 La. An. 320, 321 ; Gibson v. Foster, 2 La. An. 503, 504; Baldree v. Davenport, 7 La. An. 587 ; Levy v. Weber, 8 La. An. 439 ; McCoy v. Sanson, 13 La. An. 455 ; Brown v. Brown, 22 La. An. 475. In ac- tions on contracts, persons claiming a total or partial interest in the recovery ; and, in actions to reach a fund, persons claiming a prior lien on or interest in the same property. O'Brien v. Police Jury, 2 La. An. 855 ; Dubroca v. Her Husband, 3 La. An. 331; Moran v. Le Blanc, 6 La. An. 113; Bedell's Heirs v. Hayes, 21 La. An. 643 ; Walker v. Simon, 21 La. An. 669 ; Taylor v. Boedicker,22 La. An. 79. The following are miscellaneous cases : Erwin V. Lowry, 1 La. An. 276, 278 ; Devall v. Boatner, 2 La. An. 271 ; Thompson u. Mylne, 4 La. An. 206 ; ib. 212 ; Union Bank v. Bowman, 15 La. An. 271 ; Clapp V. Phelps, 19 La. An. 461 ; Cobb v. Depue, 22 La. An. 244 ; Merritt v. Merle, Ib. 257 ; State V. Dubuclet, ib. 365 ; Aleix c.. Der- bigny, ib. 385; Cleveland v. Comstock, Ib. 597 ; State v. Graham, 23 La. An. 402 ; Mdreau v. Moreau, 25 La. An. 214. 474 CIVIL REMEDIES. determining the rights of the other parties as between them- selves. For such adjustment the court would have been justi- fied in ordering them to be brought in, either upon their own petition, as in the present case, or by an amendment to the com- plaint." 1 § 430. Tiie doctrine thus stated by Mr. Justice Field is clearly the correct interpretation of the provisions contained in the Cali- fornia and the Iowa codes, and the opinion of Mr. Justice Dillon is in complete harmony with it. The cases cited above all fall within this doctrine. In each the interveners had a direct interest, either in prosecuting the action and obtaining the benefit of the recovery, or in defending the action and entirely defeat- ing the recovery. If the intervener claims to be the only one entitled to the relief, if he asserts that the ultimate cause of action is vested in him and not in the original plaintiff, then his interest is adverse to both of the parties. The doctrine may be expressed in the following manner: The intervener's interest must be such, that if the original action had never been com- menced, and he had first brought it as the sole plaintiff, he would have been entitled to recover in his own name to the extent at least of a part of the relief sought ; or if the action had first been brought against him as the defendant, he would have been able to defeat the recovery in part at least. His interest may be either legal or equitable. If equitable, it must be of such a character as would be the foundation for a recovery or for a defence, as the case might be, in an independent action in which he was an original party. As the new system permits legal and equitable causes of action or defences to be united by those who are made the parties to an ordinary suit, for the same reason either or both may be relied upon by an intervener. In short, the same rules govern his rights which govern those who origi- nally sue or defend. The proceeding by intervention is not an anomalous one, differing from other judicial controversies, after it has been once commenced. It is, in fact, the grafting of one action upon another, and the trying of the combined issues at one trial, and the determining them by one judgment. In this aspect of the proceeding it is both plain and reasonable that the intervener should not be required to apply for permission to come in. He brings himself into court, and becomes a litigant party 1 Horn V. Volcano Water Co., 13 Cal. 62, 69, per Field J. INTERVENTION. 475 by filing and serving his petition, which is answered by the adver- sary parties — plaintiff or defendant, or both — in the same mauuer as though it was the pleading of a plaintiff : the issues are thus framed, — issues upon the plaintiff's petition and the intervenor's petition, — and tlie trial of the whole is had at one hearing. If the intervenor fails on this trial, a judgment for costs is of course rendered against him ; if he succeeds, a judg- ment is given in his favor according to the facts and circum- stances of the case.^ 1 These remarks apply in their full extent only to the Iowa system, since by the last revision of the California code an intervenor must obtain leave of the court to file bis complaint. Where an interven- tion is adverse to both plaintiff and de- fendant, the issues raised by it must be tried and decided, whatever disposition may be made of the issues between the original parties. If the plaintiif is non- suited on the trial, the intervention is not thereby dismissed, but its trial must go on until a decision in it is reached. Poehlman v. Kennedy, 48 Cal. 201. The following cases show the circumstances under which the doctrine has been applied by the courts of California. A third per- son, to whom the cause of action has been transferred pendente lite, or who is directly interested in the subject-matter, may in- tervene before or after the issue is joined. Brooks w. Hager, 5 Cal. 281, 282. In an action to foreclose a mortgage given on a homestead, the wife of the mortgagor may intervene. Sargent v, Wilson, 5 Cal. 504, 607; Moss v. Warner, 10 Cal. 296, 297. When the State was the plaintiff seeking to recover moneys belonging to it, a third person intervened, and set up a claim to the same money, growing out of the transaction which was the foundation of the suit ; but it was held that the State could not be sued in any form, although it was conceded that the intervention would have been proper between private persons. People v. Talraage, 6 Cal. 256, 268. An intervention is proper by a per- son having a claim or lien upon the fund which is the subject of the action. County of Tuba V. Adams & Co., 7 Cal. 35. In an attachment suit, judgment creditors of the defendant may intervene, and object to the attachment, and have it set aside if void as against them. Davis v. Eppin- ger, 18 Cal. 378, 380; and see Dixey v. Pollock, 8 Cal. 570. And, in such a suit, a subsequent attaching creditor may inter- vene and show that the first attachment was wrongly issued, because there M'as, in fact, no debt due from the defendant to the plaintiff therein, and may have its lien postponed to that of his own attach- ment. Speyer v. Ihmels, 21 Cal. 280, 287 ; Coghill V. Marks, 29 Cal. 673. In an ac- tion against a sheriff for wrongfully seiz- ing the plaintiff's property on execution against another, the person who indemni- fied the sherifiF may intervene, and make himself a party on the record, and defend in the place of the defendant, — the sheriff. Dutil V. Pacheco, 21 Cal. 438, 442, per Norton J. If an action is brought to foreclose a mortgage which is barred by the statute of limitations, a subsequent purchaser or incumbrancer of the land may intervene, and set up the statute as a defence. Coster v. Brown, 23 Cal. 142, 143. An action being brought by the assignee of a thing in action, the assignment of which was absolute on its face, the as- signor intervened, alleged that he owned three-fourths of the debt, and prayed judgment in his own favor for that amount. The intervention was sustained, and the intervenor had judgment for three-fourths, and the plaintiff for one- fourth. Gradwohl v. Harris, 29 Cal. 150, 154. When the court below has granted an application to intervene, although after the trial and decision, its act is a judicial one, and cannot be reviewed by manda- mus. People a. Sexton, 37 Cal. 532, 534. The following are further illustra- tions of this system : Joliet Iron, &c. Co. V. C. C. & W. R. R., 51 Iowa, 300 (fore- closure action); Switz v. Black, 45 id. 476 CIVIL REMEDIES. § 431. This is certainly a great innovation upon the procedure which has hitherto prevailed in courts of law and of equity. It is, however, a method based upon the very principles which lie at the foundation of the entire reformed American system. The only possible objection is the multiplication of issues to be decided in the one cause, and the confusion alleged to result therefrom. This objection is not real : it is the stock argument which was constantly urged in favor of retaining the common-law system of special pleading, and was repudiated when the codes were adopted by the American States, and has been at last utterly repudiated in England. Complicated issues of fact are daUy tried by juries, and complicated equities are easily adjusted by courts. The description which I have here given of the enlarged power of intervention admitted by the codes of California and of Iowa may, by introducing its methods to the profession of other States, procure its general adoption wherever the new procedure is established. Courts and legislatures of the several States may well borrow the improvements which have been made in other commonwealths ; and thus, by a comparison of methods, the common system may become perfected and unified. 597 (action to quiet title) ; Ingle v. Jones, Cal. 742 (in action of replevin, defendant's 43 id. 286 (same) ; Harwood v. Quimby, sureties ou the undertaking to return the 44 id. 385 (action for a mandamus against property may intervene) ; Eosecrans v. a public oflicer, a taxpayer cannot inter- Alsworth, 52 id. 509 (when intervention vene) ; Henry v. Cass County, &c. Co., 42 improper in an action of ejectment) ; Por- id. 33 (no intervention after an action is ter v. Garrisomio, 51 id. 560 (same), entirely settled) ; Coburn v. Smart, 53 PEOVISIONS IN RELATION TO PLEADING. 477 CHAPTER THIRD. THE AFFIRMATIVE SUBJECT-MATTER OF THE ACTION: THE FORMAL STATEMENT OF THE CAUSE OF ACTION BY THE PLAINTIFF. SECTION FIEST. THE STATUTORY PROVISIONS. § 432. I HERE collect all the provisions of the various codes which relate in a general manner to the plaintiff's complaint or petition, and which contain the rules applicable to the theory of pleading as a whole : those which prescribe the mode of alleging certain particular classes of facts, or regulate the joinder of causes of action, or define the nature and uses of the reply, will be quoted in subsequent portions of the chapter, in immediate connection with the several subjects to which they refer. The important clauses which announce the fundamental and essential principles and doctrines of the reformed system in regard to all pleadings, and which determine the form and substance of the one by which the plaintiff sets forth the grounds of his claim for judicial relief, are nearly the same in the different State codes. With the few variations in the language, which will be pointed out, there is no substantial difference ; and the system of pleading, as found in the statute, is absolutely the same wherever the reform prevails. The following are all the provisions which it is necessary to quote in order to exhibit the simple and natural methods introduced by the new procedure. § 433. " All the forms [the rules, Ohio, Nebraska, Kansas] of pleading heretofore existing [in actions at law, Oregon] are abol- ished ; and hereafter the forms of pleading in civil actions in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed by this act." ^ " The first 1 New York, § 140 (518) ; Wisconsin, § 116 ; California, § 421 ; Florida, § 91 ; ch. 125, § 1 ; Ohio, § 83 ; Missouri, art. 5, Oregon, § 62 ; Dacota, § 92 ; North §1; Minnesota, § 76 ; Kansas, §85; Ne- Carolina, § 91; South Carolina, § 163. braska, § 90 ; Indiana, § 47 ; Kentucky, In Indiana, the phrase " inconsistent with 478 CIVIL EEMEDIES. pleading on the part of the plaintiff is the complaint [petition]." i "The only pleadings allowed are, 1, the petition [complaint] by the plaintiff; 2, the answer or demurrer by the defendant ; 3, the demurrer or reply by the plaintiff; 4, the demurrer to the reply by the defendant." ^ " The complaint [petition] shall contain, 1, the title of the cause specifying the name of the court in which the action is brought, the name of the county in which the plain- tiff desires the trial to be had, and the names of the parties to the action, — plaintiff and defendant; 2, a plain and concise state- ment of the facts constituting a cause of action without unneces- sary repetition ; 3, a demand of the relief to which the plaintiff supposes himself entitled. If a recovery of money be demanded, the amount thereof shall be stated." ^ " The defendant may de- the provisions of this act " is inserted be- tween " existing " and " are abolished." The corresponding provision of the Iowa code is more detailed : " § 2644. All tech- nical forms of action or pleading, all com- mon counts and general issues, and all fictions, are abolished ; and hereafter the forms of pleading in civil actions, and tlie rules by which their sufficiency is to be determined, are those prescribed in this code." 1 New York, § 141 (478) ; Wisconsin, ch. 125, § 2; Missouri, art. 5, § 3 ; Minne- sota, § 78 ; Indiana, § 49 ; California, § 425 ; Florida, § 92 ; Oregon, § 64 ; Da- cota, § 94 ; North Carolina, § 92 ; South Carolina, § 164. 2 Ohio, § 84; Minnesota, §77; Kan- sas, § 86; Nebraska, § 91 ; Iowa, § 2645; Indiana, § 48 ; California, § 422; Oregon, § 63; Dacota, § 93; Kentucky, § 117. In Ohio, the following is added : " Cross- petition. Any defendant who is properly made a defendant may claim in his an- swer relief touching the matters in ques- tion in the petition against the plaintiff or against other defendants in the same action." So in Kentucky the defendant may make liis answer a cross-petition against a co-defendant or other person. 8 New York, § 142 (481) (compl't) ; Wisconsin, ch. 125, § 3 (compl't) ; Ohio, § 85 (pet'n); Kansas, § 87 (pet'n); Ne- braska, § 92 (pet'n) ; Missouri, art. 5, § 3 (pet'n) ; Minnesota, § 79 (compl't) ; In- diana, § 49 (compl't) ; California, § 426 (compl't) ; Florida, § 93 (compl't) ; Ore- gon, § 65 (compl't) ; Dacota, § 95 (compl't) ; Kentucky, § 118 (pet'n) ; North Carolina, § 93 (compl't) ; South Carolina, § 165 (compl't). In Ohio. Kansas, and Nebraska, the second subdivision reads, "A statement of the facts constituting, &c., in ordinary and concise language ; " in Indiana it is the same, with the follow- ing addition, "without repetition and in such a manner as to enable a person of common understanding to know what ts intended." The corresponding section of the Iowa code is special : " § 2646. The petition must contain, 1, the name of the court and county in which the action is brought; 2, the names of the parties to the action, plaintiff and defendant, fol- lowed by the word ' petition ' if tlie pro- ceedings are ordinary, and by the words 'petition in equity' if the proceedings are equitable ; 3, a statement of the facts con- stituting the plaintiff's cause of action ; 4, a demand of the relief to which the plaintiff considers himself entitled, and, if a recovery of money be demanded, the amount thereof shall be stated ; 5, when the petition contains more than one cause of action, each must be stated wholly in a division or count by itself, and must be sufficient in itself ; but one prayer for re- lief may include a sum based on all the counts looking to a money remedy ; 6, in a petition by equitable proceedings, each division shall also be separated into para- graphs, numbered as such for convenient reference ; and each paragraph shall con- tain, as near as may be convenient, a complete and distinct statement." PROVISIONS IN RELATION TO PLEADING. 479 mur to the complaint [petition] when it shall appear on the face thereof, either, 1, that the court has no jurisdiction of the person of the defendant or the subject of the action ; or, 2, that the plaintiff has not legal capacity to sue ; or, 3, that there is another action pending between the same parties for the same cause ; or, 4, that there is a defect [or misjoinder, California] of parties plaintiff or defendant ; or, 5, that seA''eral causes of action have been improperly united ; or, 6, that the complaint [petition] does not state facts sufficient to constitute a cause of action." ^ " When any of the matters enumerated [in the last section] do not appear upon the face of the complaint [petition], the objection may be taken by answer. If no such objection be taken either by de- murrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint [petition] does not state facts sufficient to constitute a cause of action." ^ § 434. The foregoing provisions describe the complaint or peti- tion : the following clauses — some of which, however, are not found in all the codes — comprise the general rules applicable to all pleadings, which regulate their form and contents, and deter- mine their sufficiency, — the general principles, in short, which characterize the system of pleading provided for by the reformed procedure : " In the construction of a pleading for the purpose of 1 New York, § 144 (488) ; Wisconsin, show it to be in writing when It should ch. 125, § 5 ; Ohio, § 87 ; Minnesota, § 80 ; be so evidenced ; or, if founded on an ac- Kansas, § 89 ; Nebraska, § 94 ; Indiana, count or writing as evidence of indebted- § 50; Missouri, art. 5, § 6 (adding, "or, ness, and neither such account or writing, 7, that a party, plaintiff or defendant, is or a copy thereof, is incorporated with, or not a necessary party to a complete de- attached to, such pleading, or a sufficient termination of the action " ) ; California, reason stated for not doing so." § 430 (adding, "7, that the complaint is = ^'ew York, §§ 147 (408), 148 (499) ; ambiguous,unintelligible, or uncertain"); Wisconsin, ch. 125, §§ 8,9; Ohio, § 89; Oregon, § 66 (adding, " or, 7, that the ac- Missouri, art. 5, § 10 ; Minnesota, §§ 77, tion has not been commenced witliin the 78 ; Kansas, § 91 ; Nebraska, § 96 ; In- time limited in the code " ) ; Kentucky, diana, § 54 ; California, §§ 43.3, 434 ; § 120; Florida, § 95; Dacota, § 97; Florida, §§ 98, 99; Oregon, §§ 69, 70; North Carolina, § 95; South Carolina, Dacota, §§ 100, 101; North Carohna, §167. In Iowa, the first four subdivisions §§ 98, 99; South Carolina, §§ 170, 171. of § 2648 are the same as those given in The Iowa code, § 2650, after the same the text, and the section then proceeds : provision as that in the text, adds, " If the " or, 5, that thefacts stated in the petition facts stated by the petition do not entitle do not entitle the plaintiff to the relief the plaintiff to any relief whatever, ad- demanded; or, 6, that the petition on the vantage may be be taken of it by motion face thereof shows that the claim is barred In arrest of judgment before judgment is by the statute of limitations ; or fails to entered." 480 CIVIL KEMEDIES. determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties." ^ "If irrelevant or redundant matter be inserted in a pleading, it may be struck out on motion of any person aggrieved thereby ; and when the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defence is not apparent, the court may require the pleading to be made definite and cer- tain by amendment." 2 "All fictions in pleading are abolished." ^ "A material allegation in a pleading is one essential to the claim or defence, which could not be struck from the pleading without leaving it insufficient. Neither presumptions of law nor matters of which judicial notice is taken need be stated in the pleading."* The following special provision, which is found only in a portion of the codes, and is not impliedly contained in the general prin- ciples common to them all, is quoted because of its practical im- portance as a rule' of procedure in those States whose legislation has adopted it: "If the action, counter-claim, or set-off be founded on an account, or on a note, bill, or other written instrument, as evidence of indebtedness, a copy thereof must be attached to and filed with the pleading. If not so attached and filed, the reason thereof must be shown in the pleading." ^ iNew York, § 159 (519); Wisconsin, diana, § 88 (only the last clause); Cali- ch. 125, § 23; Ohio, § 114; Missouri, art. 5, fornia, § 463 (first clause only) ; Oregon, § 37; Minnesota, § 93; Kansas, § 115; § 93 (the first clause only). Nebraska, § 121 ; Indiana, § 90 ; Califor- 5 Ohio, § 117 ; Kansas, § 118 ; Ne- nia, § 452; Florida, § 109; Oregon, § 83; braska, § 124; Missouri, art. 5, § 51, the Dacota, § 112; North Carolina, § 119; instrument itself must be filed with the South Carolina, § 182. pleading ; Indiana, § 78,— when any plead- 2 New York, § 160 (545, 546) ; "Wiscon- ing is founded on a written instrument or sinj ch. 125, § 24; Ohio, § 118; Missouri, account, the original, or a copy, must be art. 5, § 20 ; Minnesota, § 94 ; Kansas, filed with the pleading. In Iowa, the sec- § 119; Nebraska, § 125; Indiana, § 90; tion prescribing the grounds of demurrer Iowa, §§ 2719, 2720 (somewhat altered) ; requires such a writing, or a copy thereof , California, § 453 (altered verbally) ; Flor- to be incorporated with, or attached to, ida, § 110 ; Oregon, § 84 ; Dacota, § 113 ; the pleading ; § 2648, subd. 6. See supra, North Carolina, § 120 ; Soiith Carolina, § 483, note. For illustrations, see P>ans § 183. V. Clermont, &c. Co., 51 Ind. 160; Excel- 3 Ohio, § 115; Kansas, § 116; Indiana, sior Draining Co. v. Brown. 38 id. 884; § 92 ; Missouri, art. 5, § 18, — " No allega- Etchinson Ditching Ass'n v. Busenbach, tion shall be made In any pleading which 39 id. 362 ; Dobson v. Duckpond &c., the law does not require to be proved, and Ass'n, 42 id.'312 ; Alspaugh v. Ben. Frank- only the substantial facts necessary to lin, &c. Ass'n, 51 id. 271; Montgomery!), constitute the cause of action or defence Gorrell, 51 id. 309 ; Brown v. State, 44 id. shall be stated." 222 ; Mitchell v. Am. Ins. Co., 51 id. 396; 4 Ohio, §§ 128, 129 ; Missouri, art. 5, Kinkle v. Margerum, 50 id. 240 ; Sanford § 39 (only the last clause); Kansas, k. Wood, 49 id. 166 ; Jagers u. Jagers, 49 §§ 129, 130; Nebraska, §§ 135, 136 ; In- id. 428; Hays v. Miller, 12 id. 187; Tyler PROVISIONS IN RELATION TO PLKADING. 481 § 435. Ample provision is made for the amendment of plead- ings, either at the trial itself, or at any other time in the progress of the cause. The following sections are contained in all the codes, with some unimportant verbal variations in a few of them : " No variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled [shall actually mislead] the adverse party to his prejudice in maintain- ing his action or defence upon the merits. Whenever it shall be alleged that a part}' has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled ; and thereupon the court may order the pleading to be amended upon such terms as shall be just."^ "When the vari- ance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment without costs." ^ "Where, however, the allegation of the cause of action or defence to which the proof is dh'ected is unproved, not in some particular or partic- ulars, but in its entire scope and meaning, it shall not be deemed a case of variance within the last two sections, but a failure of proof." ^ Any pleading may be amended once by the party filing or serving it, as a matter of course, and without costs, and with- out prejudice to proceedings already had: such amendment must be made within specified times, which differ in the various codes ; but will not be permitted if it appear to be merely for purposes of delay.* In addition to this privilege of voluntary amendment V. Kent, 02 irl. 583; Calvin v. Woolen, * New York, § 171 (541); Wisconsin 66 id. 464 (neglect to file is cured by ch. 126, § 37; Minnesota, § 107; Ohio, verdict) ; Ohio, &c. E. K. v. Nicklaus, 71 § 133 ; Kansas, 135 ; Nebraska, § 140 id. 271; Suringer v. Paddock, 81 Ark. Iowa, §2688; Indiana, § 96; California, 528 ; Hannibal & St. Jo. E. R. V. Kundson, § 471; Florida, § 121; Oregon, §96 62 Mo. 569. Dacota, § 124 ; North Carolina, § 130 1 New Tork, § 169 (539) ; Wisconsin, South Carolina, § 194. ch. 125, § 35; Ohio, § 131; Missouri, art. * New York, § 172 (542, 543, 497) 8, § 1 ; Minnesota, § 105 ; Kansas, § 133 ; Wisconsin, ch. 125, § 38 ; Ohio, § 134 Nebraska, § 138 ; Iowa, § 2686 ; Indiana, Missouri, art. 8, § 7 ; Minnesota, § 108 § 94 ; California, § 469 ; Florida, § 119 ; Kansas, § 136 ; Nebraska, § 141; Indiana Oregon, §94; Dacota, § 122 ;' North Caro- §97; Iowa, § 2647; California, § 472 lina, § 128 ; South Carolina, § 198. Florida, § 122 ; Oregon, § 97 ; Dacota, 2 New York, § 170 (540) ; Wisconsin, § 125 ; North Carolina, § 131 ; South ch. 125, § 36 ; Ohio, § 132 ; Missouri, art. Carolina, § 195. These provisions are 8, § 2 ; Minnesota, § 106 ; Kansas, § 134 ; substantially the same, except in respect Nebraska, § 139; Iowa, § 2687; Indiana, to the time within which the amendment § 95 ; California, § 470 ; Florida, § 120 ; can be made ; they all permit one such Oregon, § 95; Dacota, § 123; North amendment by the party of his own Carolina, § 129 ; South Carolina, § 193. pleading, as a matter of course. 81 482 CIVIL EEMEDIES. accorded to the parties, the court itself may, on motion, amend a pleading, or permit it to be amended, at any stage of the cause, before and in most of the States, after the judgment, on such terms as may be proper. This authority is conferred in very broad terms, with the limitation, however, that the cause of action or defence shall not be substantially changed.^ Finally, all the codes contain the following most righteous provision, which, as appears by their reported decisions, is treated by the courts of some States as though it were a legislative command binding upon them : " The court shall, in every stage of an action, disre- gard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect." 2 § 436. In the important discussions based upon the foregoing statutory provisions, which will form the substance of the present 1 New York, § 173 (723) ; "Wisconsin, ch. 125, § 41 ; Oliio, § 137 ; Missouri, art. 8, §§3, 6 ; Minnesota, § 109 ; Nebraska, § 144 ; Kansas, § 130 ; Indiana, § 99 (with verbal changes) ; Iowa, § 2689 ; Califor- nia, § 473 ; Florida, § 123 ; Oregon, § 99 ; Dacota, § 126; North Carolina, § 132; South Carolina, § 196. The following is the clause as found in all the codes sub- stantially, and exactly in most of them. The court may at any time "amend any pleading or proceeding by adding or strik- ing out the name of any party ; or by correcting a mistake in the name of any party, or a mistake in any other respect ; or by inserting allegations material to the case ; or, when the amendment does not substantially change the claim or defence, by conforming the pleading or proceeding to the facts proved." 2 New York, § 176 (723, 721) ; "Wis- consin, ch. 125, § 44 ; Ohio, § 138 ; Mis- souri, art. 8, § 6 ; Minnesota, § 112 ; Ne- braska, § 145 ; Kansas, § 140 ; Indiana, § 101 ; Iowa, § 2690 ; California, § 475 ; Florida, § 126; Oregon, § 104; North Carolina, § 135 ; South Carolina, § 199. The foregoing are all the general provi- Bions relating to the plaintiff's pleading, or to the theory of pleading as a whole : those relating to the defendant's plead- ing, to the reply, and to the joinder of causes of action, are given hereafter. In a few of the codes, especially in those of Iowa, Indiana, and Missouri, there are certain special clauses prescribing what may be proved under the answer of denial, and what must be pleaded as new matter, or referring to some mere points of detail : as these clauses are all em- braced by implication in the more general provisions common to all the codes, and thus make no change in the law of the States where they are found, they are surplusage, and I have not quoted them. One special provision, however, prescrib- ing a form of complaint or petition in cer- tain cases, may properly be cited here. " In an action or defence founded upon an instrument for the payment of money only, it shall be suflScient for a party to give a, copy of the instrument, and to state that there is due thereon to him from the adverse party a specified sum which he claims." New "Tork, § 162 (533,534); Ohio, § 122; Kansas, §123; "in an action, counter-claim, or set-off, founded on an account, note, bill of ex- change, or other instrument, for the un- conditional payment of money only, it shall be suflScient," &e. For an excellent illustration of this provision, see Strunk „. Smith, 36 Wis. 631. JOINDER OF CAUSES OF ACTION. 483 chapter, the natural and scientific order of treatment would un- doubtedly lead me first to develop the general and essential prin- ciples upon which the whole reformed theory of pleading is based, and afterwards to apply these principles in determining the rules that regulate the matter and form of the plaintiff's complaint or petition. Scientific method must, however, be sometimes aban- doned from co'nsiderations of convenience and expediency ; and such a course seems to be proper in this instance. In attempting to obtain a correct notion of the essential principles and doctrines of the new system, it will be necessary to fix the meaning of cer- tain terms and phrases used in all the codes ; and it so happens, from the course of judicial decisions involving the question, that these very terms and phrases can be most advantageously ex- amined, and most easily interpreted, in connection with the par- ticular subject of " The Joinder of Causes of Action." The entire discussion will, therefore, be rendered simpler, and useless repetition will be avoided, by adopting the arrangement thus suggested. In pursuing this plan, the subject-matter of the chapter will be separated into the following general divisions: (1) The joinder of different causes of action in one proceeding ; (2) the essential principles which lie at the foundation of the reformed system of pleading ; (3) the general doctrines and practical rules deduced from these principles, which determine and regulate both the external form and the substance of the plaintiff's complaint or petition. SECTION SECOND. JOINDEK OF CAUSES OF ACTION, § 487. The discussion of this important subject will be sepa- rated into the following subdivisions : I. The statutor}^ provisions found in the various State codes. II. The forms and modes in which a misjoinder may occur, and the manner in which it must be objected to and corrected. III. The legal import of the term " cause of action," and the case discussed in which only a single cause of action is stated, although several different remedies, or kinds of relief, are demanded. IV. The legal import of the term " transaction ; " discussion of the case of " causes of action arising 484 CIVIL EEMEDIES. out of the same transaction, or transactions connected with the same subject of action." V. Instances in which the proper joinder of causes of action is connected with the proper joinder of defendants ; discussion of the provision that all the causes of action must affect all of the parties. VI. Instances in which all the causes of action are against the single defendant, or against all the defendants alike ; and the only question is, whether the case falls within any one of the several specified classes, except the first which embraces those arising out of the same transac- tion, &c. These subdivisions, I think, entirely exhaust the par- ticular subject-matter to which this section is devoted. I. The Statutory Provisions. § 438. The provision, which is found substantially the same — with very slight modifications, if any — in most of the codes, is as follows : " The plaintiff may unite in the same complaint [or petition] several causes of action, whether they be such as have heretofore been denominated legal or equitable, or both, when they all arise out of, 1. The same transaction, or transactions connected with the same subject of action ; 2. Contract, express or implied ; or, 3. Injuries, with or without force, to person and property, or either ; or, 4. Injuries to character ; or, 5. Claims to recover real property, with or without damages for the with- holding thereof, and the rents and profits of the same ; or, 6. Claims to recover personal property, with or without damages for the withholding thereof ; or, 7. Claims against a trustee, by virtue of a contract, or by operation of law. " But the causes of action so united must all belong to one of these classes, and, except in actions for the foreclosure of mort- gages, must affect all the parties to the action, and not require different places of trial, and must be separately stated. " In actions to foreclose mortgages, the court shall have power to adjudge and direct payment by the mortgagor of any residue of the mortgage debt that may remain unsatisfied after a sale of the mortgaged premises, in cases in which the mortgagor shall be personally liable for the debt secured by such mortgage ; and if the mortgage debt be secured by the covenant, or obligation, of any person other than the mortgagor, the plaintiff may make such person a party to the action, and the court may adjudge JOINDEK OF CAUSES OF ACTION. 485 payment of flie residue of such debt remaining unsatisfied after a sale of the mortgaged premises, against such other person, and may enforce such judgment as in other cases." ^ § 439. The scheme contained in all these codes is marked by certain common features, which should be noticed ; namely, the express provision for the uniting of legal and equitable causes of action, and the exceedingly general and vague clause permitting the union of causes of action arising out of the same transaction, or transactions connected with the same subject of action. In a few States these peculiar features are wanting ; while the other classes of causes of action which may be joined are substan- tially the same as provided in the arrangement already given. This is the case in Kentucky ,2 in Oregon,^ and in California.* It 1 New York, § 167 (483, 484, 1627) ; Wisconsin, ch. 125, §§ 31, 32 ; § 31 is the same as the first paragraph of the text ; § 32 is the same as the second, but omit- ting tlie words " except in actions for the foreclosure of mortgages ; " ch. 145, §§ 11, 12, are substantially the same as the third paragraph : Ohio, §§ 80, 81, are same as the first and second paragraphs of the text, witli same omission as in Wisconsin ; § 86, — " When the petition contains more than one cause of action, each shall be separately stated and num- bered ; " Missouri, ch. 110, art. 5, § 2, is the same as the first and second para- graphs of the text, except that class 7 is, " Claims by or against a party in some representative or fiduciary capacity, by virtue of a contract, or by operation of law ; " Nebraska, §§ 87, 88, the same as §§ 31, 32, of Wisconsin, and §§ 847, 849 contain same provision as the third para^ graph of the text ; Minnesota, § 103, same as §§ 31, 32, of Wisconsin; Kansas, § 83, the same as the first and second para- graphs of the text, and § 88 is the same as § 86 of Ohio, above quoted ; Elorida, § 117, same as the text ; North Carolina, §126; South Carolina, § 190. 2 Kentucky, § HI. " Several causes of action may be united in the same petition when each affects all tlie parties to the action, may be brought in the same coun- ty, be prosecuted in the same kind of proceedings, and all belong to one of the following classes : 1. Actions arising out of contract, express or implied. 2. Claims for the recovery of specific real property, and the rents, profits, and damages for withholding the same. 3. Claims for the recovery of specific personal property, and damages for withliolding the same. 4. Claims for the partition of real or per- sonal property, or both. 5. Claims arising from injuries to character. 6. Claims arising from injuries to person or prop- erty. 7. Claims against a trustee by vir- tue of a contract, or by operation of law." ^ Oregon, § 91, is substantially the same as in New York, omitting class 1st, and all reference to the union of legal and equitable causes of action. * California, Code of Civil Procedure, 1872, § 427. 'fThe plaintiff may unite several causes of action in the same com- plaint when they all arise out of, 1. Con- tracts, express or implied; 2. Claims to recover specific real property, with or without damages for withholding thereof, or for waste committed thereon, and the rents and profits of the same ; 3. Claims to recover specific personal property, with or without damages for withholding the same ; 4. Claims against a trustee by vir- tue of a contract, or by operation of law ; 5. Injuries to character; 6. Injuries to person; 7. Injuries to property. But the causes of action so united shall belong to one only of these classes, and shall affect all the parties to the action, and not re- quire different places of trial, and shall be separately stated ; but an action for malicious arrest and prosecution, or either of them, may be united with an action for either an injury to character or to the person." 486 CIVIL EEMEDIES. should be remembered that in Kentucky and in Oregon a slight distinction between legal and equitable proceedings is preserved ; and this fact, doubtless, accounts for the form of the provision in the codes of those States. No such distinction remains in Cali- fornia, and, as has been seen in a former chapter, legal and eqiiita- ble causes of action may be united, according to the established procedure in that State, notwithstanding the omission in the clause expressly regulating such joinder. § 440. In other States, the original type set forth in the New- York code has been widely departed from. Thus, in Indiana, an attempt is made to enumerate and arrange the particular classes of equitable as well as legal causes of action which maybe joined.^ In Iowa the departure from the common type and the changes of the common law are much wider, and more radical. The code of that State, as those of Kentucky and of Oregon, retains some slight separation between legal and equitable actions, but permits all possible actions that are legal, or all that are equitable, to be united in one petition. The only requirement in reference to their nature is, that all causes of action so united must be in the same kind of proceedings ; that is, all legal, or all equi- table.2 1 Indiana, § 70. " The plaintifi may action arising out of a contract or a duty, unite several causes of action in the same and not falling within either of tlie fore- complaint when they are included in going classes. But causes of action so either one of the following classes : joined must affect all the parties to the 1. Money demands on contract. 2. In- action, and not require different places juries to property. 3. Injuries to person of trial. § 71. When the plaintiff desires or character. 4. Claims to recover pos- to recover possession of title-papers or session of personal property, with or other instruments in writing, or to correct without damages for withholding thereof, any mistakes therein, a separate action and for injuries to the property withheld, may be brought therefor, or the posses- 5. Claims to recover possession of real sion of such title-papers or other instru- property, with or without damages for ments in writing may be recovered, or the withholding thereof, and rents and mistakes corrected in any other action, profits of the same ; to make partition when such recovery or correction would thereof, and to determine and quiet the be essential to a complete remedy. § 72. title to real property. 6. Claims to en- Wlien the action arises out of contract, force the specific performance of con- the plaintifT may join such other matters tracts, and to avoid contracts for fraud in his complaint as may be necessary for or mistake. 7. Claims to foreclose mort- a complete remedy and a speedy satisfac- gages; to enforce or discharge specific tion of his judgment, although such other liens; to subject to sale real property matters fall within some other one or upon demands against decedents' estates, more of the foregoing classes." when such property has passed to heirs, 2 Iowa, code of 1873, § 26.30. Prior devisees, or their assigns ; to marshal as- code, § 2844. " Causes of action of what- sets, and to substitute one person to the ever kind, where each may be prosecuted right of another ; and all other causes of by the same kind of proceedings, provided JOINDER OF CAUSES OF ACTION. 487 § 441. These various statutory provisions will be examined, and the judicial interpretation put upon them will be ascertained, in a subsequent portion of the present section. Their general scope and meaning, however, are very plain. Excepting in Iowa, a plaintiff may unite different causes of action in the one complaint or petition, under the following restrictions: They must affect all the parties ; they must all be triable in the same county ; and they must all belong to one of the various specified classes. The result is, that all the causes of action so united must be either upon contract, or for injuries to person or property, and the like, unless they all arise out of the same transaction, or transactions connected with the same subject of action. This latter exception does not, as has been seen, prevail in a few of the States ; but, where it does prevail, the most incongruous and dissimilar causes of action may be joined, if they arise out of the same transaction, or transactions connected with the same subject of the action, within the meaning of that phrase. It is evident that very little difficulty can arise in interpreting and applying most of the classes. The real doubts and uncertainties grow out of (1) the confounding the reliefs demanded by the plaintiff with the cause of action upon which such demand is based ; and this confusion is more apt to exist in equity causes, and especially in those where legal relief is prayed for as well as equitable ; (2) the clause per- mitting the joinder of causes of action arising out of the same transaction, &c. " Transaction " has had no technical legal meaning, and is a word of very vague import at best ; but this vagueness is largely increased by the additional clause which per- mits causes of action arising out of transactions connected with the same subject of action to be united. These are the two chief, and almost only, sources of doubt in the practical construc- tion of the passage in question. The first one — the liability of confounding the reliefs demanded with the causes of action — may, of course, be avoided by the exercise of care and discrimi- nation : the second is much more embarrassing, and it is hardly possible that all doubt should ever be removed from the legal meaning of the language. that they be by the same parties and prevent confusion therein, may direct all against the same party in the same right, or any portion of the issues so joined and if suit on all as to venue may be therein to be tried separately, and may brought in the same county, may be joined determine the order thereof." in the same petition. But the court, to 488 CIVIL KEMEDIES. II. The Forms and Modes in which a Misjoinder may occur, and the Manner in which it must he objected to and corrected. § 442. All of the codes require that the different causes of action should be separately stated. In other words, each must be set forth in a separate and distinct division of the complaint or petition, in such a manner that each of these divisions might, if taken alone, be the substance of an independent action. In fact, the whole proceeding is the combining of several actions into one. At tlie common law, these separate divisions of the declara- tion were termed " counts ; " and that word is still used by text- writers and judges, although, with one or two exceptions, it is not authorized by the codes ; and it tends to produce confusion and misapprehension, since the common-law " count " was sub- stantially a very different thing from the " cause of action " of the new procedure. In one or two States, the term " paragraph " is used to designate these primary divisions. The difficulty in the use of this term is that it is now very generally used in England, and in most of the States where the reformed system prevails, to designate the short sub-divisions, or allegations, of facts into which each cause of action is separated, according to a mode of plead- ing which has become very common. The term " cause of action " is perhaps as proper as any which can be used for the purpose. That such a separation should be made, and that each distinct cause of action should be stated in a single and independent divi- sion, so that the defendant may answer or demur to it without any confusion with others, is plainly indispensable to an orderly system of pleading, and is expressly required by all the codes ; and in some of the States the courts have strictly enforced the requirement, and have thereby done much to prevent the formal presentations of the issues to be tried from falling into that con- fused and bungling condition which exists to so great an extent in certain of the States. § 443. The special provisions respecting the manner of raising an objection to a misjoinder of causes of action, and the effect thereof, are as follows : In all the codes but two, it is prescribed that the defendant may demur to the complaint, or petition, if it shall appear on the face thereof that several causes of action have been improperly united ; that, if the error does not so appear, the JOINDER OF CAUSES OF ACTION. 489 objection may be taken by the answer ; and that, if not taken in either of these modes, it is waived.^ The sustaining of a de- murrer upon this ground is not fatal to the action in all the States. Several codes contain the very just provision, that, when such a demurrer is sustained, the court may simply order the action to be divided into as many as may be necessary for the proper hearing and determination of the causes of action set forth in the original pleading.^ The plaintiff is thus not thrown out of court in respect of any of the causes of action alleged by him ; he is merely required to separate the single cause into the num- ber of independent suits which he should have originally brought. § 444. In one or two States a misjoinder is attended with even less serious consequences than this, the sole object of the statu- tory provision on the subject being to secure a trial of each cause of action before the proper tribunal. In Iowa there can be no misjoinder, properly so called, except by uniting a legal and an equitable cause of action. Still, if two legal causes are so utterly incongruous as to prevent a trial of them together, the court may order them to be tried separately. The clauses of the Iowa code are found in the foot-note.^ The provisions of the Kentucky 1 See these provisions, collected in the text or notesj supra, § 433. These rules are identical with tliose which regulate the method of objecting to a defect of parties; and the decisions already cited (§§ 206, 207, 287), of course, apply to the present subject-matter. If the objection appears on the face of the pleading, it must be raised by demurrer, and not by an- swer ; and this is substantially the same as saying that it must always be raised by demurrer, because the misjoinder will always appear on the face of the pleading. See James v. Wilder, 25 Minn. 305 ; Mead w. Brown, 65 Mo. 552 ; Finley v. Hayes, 81 N. C. 368 ; Boon v. Carter, 19 Kans, 135; Keller v. Boatman, 49 Ind. 104 Kankin v. Collins, 50 Id. 158 ; Hardy v. Miller, 11 Neb. 395. 2 New York, § 172 (542, 543, 497) Ohio, § 90 ; Wisconsin, ch. 125, § 38 (lasi clause) ; Nebraska, § 97 ; Kansas, § 92 Florida, § 122 (last clause) ; North Caro- lina, § 181 ; South Carolina, § 195. 3 Iowa, code of 1873, § 2631. " The plaintiff may strike from his petition any cause of action, or any part thereof, at any time before the final submission of the case to the jury, or to the court when the trial is by the court." " § 2632. The court, at any time before the defence, shall, on motion of the defendant, strike out of the petition any cause of action or causes of action improperly joined with others." The " defence " here spoken of is undoubtedly the entering upon his de- fence at the trial by the defendant, and not the putting in his answer. The lan- guage of the preceding section plainly points to this construction. " § 2633. All objections to the misjoinder of causes of action shall be deemed to be waived, unless made as provided for in the last section," — that is, by motion ; a mis- joinder is not a ground of demurrer. " § 2634. When a motion is sustained on the ground of misjoinder of causes of ac- tion, the court, on motion of the plaintifif, shall allow him, with or without costs, in its discretion, to file several petitions, each including such of said causes of ac- tion as might have been joined ; and an action shall be docketed for each of said petitions ; and the same shall be pro- 490 CIVIL REMEDIES. code, in reference to the remedy for a misjoinder, are similar to those of lowa.i The practice in Indiana differs from that which prevails in the States generally, and also from that established in Iowa. A demurrer for misjoinder is permitted ; but its effect can never be fatal to the action. In fact, the matter seems to be practically left in the discretion of the lower or trial court, and any disposition of the objection to a misjoinder made by it can- not be assigned as error so as to reverse a judgment on review. The sections of the Indiana code are quoted in the note.^ § 445. There is another section found in all the codes, which has an important bearing upon the subject under consideration in some of its aspects, — that which permits the correction of plead- ings at the instance of the adverse party on his motion by strik- ing out irrelevant and redundant matter, and by requiring the pleading to be made more definite and certain by amendment where its allegations are so indefinite and uncertain that the pre- cise nature of the charge or defence is not apparent.^ ceeded with without further service ; and the court shall determine, by order, the time of pleading therein." This mode of procedure is simple, and eminently just, and sweeps away a mass of tech- nical defences which still disfigure the pure Ideal of the American system in many States. For a construction of these provisions, see Hickle v. Daven- port, 38 Iowa, 355, 358; Cobb v. 111. Cent. K. E., 38 Iowa, 601, 616; Grant V. McCarty, 38 Iowa, 468. 1 Kentucky code, §§ 113, 114 ; Sale v. Critchfield, 8 Bush, 636, 646. The de- fendant must move before answer that plaintiff elect between the causes of ac- tion, and strike out the others ; if no such motion is made, the objection is waived. The same rule prevails as to the mis- joinder of parties, which is never ground of demurrer ; defendant must move to strike out the improper parties, or else waive all objection. Dean v. English, 18 B. Mon. 132 ; Yeates v. Walker, 1 Duv. 84. 2 Indiana code, § 50. " The defendant may demur to the complaint when it ap- pears upon the face thereof, . . . 5th, that several causes of action have been im- properly joined. § 51. When a demur- rer is sustained on the ground of several causes of action being improperly united in the same complaint, the court shall order the misjoinder to be noted on the order-book, and cause as many separate actions to be docketed between the par- ties as there are causes of action decided by the court to be improperly joined ; and each shall stand as a separate action; and the plaintiff shall thereupon file a separate complaint in each of the above cases, to which the defendant shall enter his appearance, and plead and go to trial, or suffer a default, in the same manner as in the original action. § 52. No judg- ment shall ever be reversed for any error committed in sustaining or overruling a demurrer for misjoinder of causes of ac- tion." " § 54. When any of the matters mentioned in § 50 do not appear on the face of the complaint, the objection (ex- cept for misjoinder of causes of action) may be taken by answer." It is plain from the foregoing that the practical ef- fect of a successful demurrer is trivial. It compels the separation of the action, and the trial of two or more suits instead of one. No discretion is left to the court, as in New York, Iowa, and other States; the court shall cause the separate actions to be docketed. See Clark v. Lineberger, 44 Ind. 223, 227, that no objection can be raised on appeal. ^ See supra, § 434. JOINDEK OF CAUSES OF ACTION. 491 § 446. Three forms or modes of alleged misjoinder are possi- ble, and they must be examined separately iu respect to the man- ner in which the objection thereto should be taken. They are, (1) When different causes of action which may properly be united are alleged in the one complaint or petition not distinctly and separately as required by the statute, but combined and mingled together in a single statement. (2) When different causes of action which cannot properly be united are alleged in the one complaint or petition, and are separately and distinctly stated. (3) When different causes of action which cannot properly be united are alleged in the one complaint or petition not distinctly and separately, but combined and mingled together in a single statement ; These three cases will be examined in order. § 447. (1) Although the sections of the codes, defining what causes of action may be united, all require in positive terms that when so joined each must be separately stated, it is settled by the weight of authority, and seems to be the general rule, that a vio- lation of this particular requirement is not a ground of demurrer. This conclusion is based upon the language of the codes author- izing a demurrer for the reason that causes of action "are im- properly united in the complaint or petition." It is said that this expression only points to the case in which causes of action have been embraced in one pleading which could not properly be joined ; while in the special case under consideration it is assumed that all the causes of action may be united, and the only error consists in the external form or manner of their joinder. The remedy is, therefore, not by a demurrer, but by a motion to make the pleading more definite and certain by separating and dis- tinctly stating the different causes of action.^ The plaintiff can thus be compelled to amend his complaint or petition, and to 1 Bass V. Comstock, 38 N. T. 21 ; 36 Han. & St. Jo. R. R., 36 Mo. 202 ; Hoag- How. Pr. 382, and cases cited ; Wood v. land v. Han. & St. Jo. R. R., 39 Mo. 451 ; Anthony, 9 How. Pr. 78 ; Hendry v. Farmers' Bank v. Bayliss, 41 Mo. 274, Hendry, 32 Ind. 349 ; Mulholland v. Rapp, 284, per Holmes J. These prior cases, 50 Mo. 42 ; Pickering v. Miss. Valley Nat. however, are expressly overruled by the Tel. Co., 47 Mo. 457,460; House w. Lowell, more recent decisions of the same court 45 Mo. 381. See Wiles w Suydam, 6 N. Y. cited above. See also Freer w. Denton, Sup. Ct. 292. A different rule formerly 61 N. Y. 492 ; Sentinel Co. v. Thompson, prevailed in Missouri, and it was held that 38 Wis. 489 ; Riemer «. Johnke, 37 Id. the error was not only ground for a de- 258 ; Hardy v. Miller, 11 Neb. 395 ; but murrer, but even for a motion in arrest of see Watson v. San Francisco, &c. R. K., judgment after verdict! McCoy w. Yager, 50 Cal. 523. 34 Mo. 134; Clark's Administrator v. 492 CIVIL REMEDIES. state each cause of action by itself, so that the defendant may deal with it by answer or demurrer as the nature of the case demands. It seems to be the settled rule in California, how- ever, that the defect may properly be taken advantage of by demurrer.^ § 448. (2) When causes of action separately stated are im- properly united in the same complaint or petition, the rule which prevails in all the States, except in the few whose special legis- lation has already been described, is the same as that which ap- plies to the case of a defect of parties. If the error appears on the face of the pleading, the defendant must demur, and cannot raise the objection by answer. The statute adds, that, if the error do not thus appear on the face of the pleading, the defence may be presented by the answer. If the defendant omits to use either of these methods properly, he is deemed to have waived the ob- jection. The practical result is, that a demtirrer must always be resorted to, or all objection to such misjoinder will be waived.^ The demurrer may be by any of the defendants ; ^ and it must be to the entire complaint or petition, and not to any cause or causes of action supposed to have been improperly joined.* To sustain a demurrer for this reason, however, the complaint must contain two or more good grounds of suit which cannot properly be joined in the same action. When a complaint, therefore, consists of two or more counts, and one sets forth a good cause of action, and another does not, although it attempts to do so, the pleading is not demurrable on the ground of a misjoinder, even though the causes of action could not have been united had they been suffi- ciently and properly alleged.^ 1 Nevada, &c. Canal Co. v. Kidd, 43 2 Blossom v. Barrett, 37 N. Y. 434, 436 ; Cal. 180, 37 Cal. 282 ; Watson «. San Smith v. Orser, 43 Barb. 187, 193 ; Mead Francisco, &c. R. R., 41 Cal. 17, 19 ; Buck- v. Bagnall, 15 Wis. 156 ; Jamison o. ingham v. Waters, 14 Cal. 146 ; White v. Copher, 35 Mo. 483, 487 ; Ashby v. Win- Cox, 46 Cal. 1G9. In Wright v. Conner, ston, 26 Mo. 210 ; Hibernia Savings Soc. 34 Iowa, 240, 242, it was said : "If through v. Ordway, 38 Cal. 679; Lawrence u. bad pleading two or more distinct causes Montgomery, 37 Cal. 183. See also Field of action or defences are contained in one v. Hurst, 9 S. C. 277. division of a petition or answer, which is ^ Ashby v. Winston, 26 Mo. 210. called a count, a demurrer may be di- * Bougher v. Scobey, 16 Ind. 151, 154 ; rected at one of them if insufficient at and must be on the specific ground of law." In strictness, the objecting party the misjoinder, — a demurrer for want of ought first to require, by motion, that the sufficient facts does not raise the objec- petition or answer be properly divided, tion. Cox v. West. Pac. K. R., 47 Cal. 87, or an election made between the causes 89, 90. of action or the defences ; but, omitting 6 Truesdell v. Rhodes, 26 Wis. 215, this, he may demur. 219 ; Bassett v. Warner, 23 Wis. 673, 689, JOINDER OF CAUSES OF ACTION. 493 § 449. In a very few States, however, the practice is different, and a demurrer is not permitted as the remedy for a misjoinder. It is so in Kentucky. The defendant must move to strike out, or to compel the plaintiff to elect which cause of action he will proceed upon, and to dismiss the others ; and a failure to make such motion is a complete waiver of the objection. The plaintiff may also at any time before trial withdraw any cause of action.^ The sections of the Iowa code quoted in § 444 show that a simi- lar practice exists in that State. § 450. (3.) The third case presents some difficulties. When the complaint or petition contains causes of action which cannot properly be united, and tliey are mingled and combined in the same allegations, — in other words, the pleading inform sets forth but one cause of action, while in reality it embraces two or more which cannot be joined in any form, — is the defendant's remedy by demurrer, or by motion in the first instance that the pleading be made more definite and certain by separating the causes of action, and by demurrer when such separation has been accom- plished ? In Missouri it is definitely settled that the remedy is by demurrer.2 That this is a proper practice is implied with more or less distinctness by decisions in several other States.^ § 451. There are grave difiBculties attendant upon the adoption of such a rule, although it seems to be generally supported by the decided cases. When, upon sustaining a demurrer interposed upon the ground of a misjoinder of causes of action, the action itself is not defeated, but the causes of action improperly united 690 ; Willard v. Reas, 26 Wis. 540, 544 ; ministrator v. Wells, 33 Mo. 106, 109. Lee V. Simpson, 29 Wis. 333 ; Cox c. And see Pickering v. Miss. Valley Co., 47 West. Pac. R. R., 47 Cal. 87, 89, 90. Mo. 457 ; House v. Lowell, 45 Mo. 381. 1 Forkner o. Hart, Stanton's code, p. = Gary v. Wheeler, 14 Wis. 281 ; Bur- 60 ; Wilson v. Thompson, ib. p. 60 ; Hart rows v. Holderman, 31 Ind. 412 ; Lane v. V. Cuudiff, ib. p. 61 ; Hord v. Chandler, State, 27 Ind. 108, 112 : Pritz v. Fritz, 13 B. Mon. 403 ; McKee v. Pope, 18 B. 23 Ind. 388, 390 ; Hibernia Savings Soc. Mon. 548, 555 ; Bonney v. Reardin, 6 v. Ordway, 38 Cal. 679 ; Anderson v. Hill, Bush, 34; Dragoo v. Levi, 2 Duv. 520; 53 Barb. 238. See, however, Rogers v. Chiles V. Drake, 2 Mete. (Ky.) 146 ; Han- Smith, 17 Ind. 323, per Perkins J., which cock V. Johnson, 1 Mete. 242 ; Sale «. seems to hold that the remedy should be Crutchfield, 8 Bush, 636, 646 ; Hinkle v. by motion. That a demurrer is the pro- Davenport, 38 Iowa, 355, 358; Cobb v. per remedy is distinctly held by these 111. Cent. R. R., 38 Iowa, 601, 616 ; Grant later cases, Goldberg v. Utley, 60 N. Y. V. McCarty, 38 Iowa, 468. 427, 429; Wiles v. Suydam, 64 id. 173; 3 MulhoUand v. Rapp, 50 Mo. 42; Liedersdorf v. Second Ward Bank, 50 Ederlin v. Judge, 36 Mo. 350 ; Young v. Wis. 406. Coleman, 43 iMo. 179, 184; Cheely's Ad- 494 CIVIL REMEDIES. are merely separated, and new actions corresponding with such division are proceeded with, it would seem to be a necessary prerequisite that the causes of action should have been separately and distinctly stated in the original pleading. To allow the demurrer to a complaint or petition in which several causes of action are mingled up, and to divide this mass of confused alle- gations into as many complaints as there are causes of action, Avould seem to be a work of great difficulty, if not of absolute impossibility. Again : it is always difficult if not impossible to determine with exactness whether a complaint or petition does contain two or more different causes of action when the allega- tions are thus combined into one statement. If the averments are found sufficient to express one cause of action, it may gener- ally be said that the other averments are mere surplusage, which should be rejected on a motion made for that purpose, and not the material allegations which set forth a second cause of action. For these reasons, which are based chiefly upon notions of con- venience, a demurrer does not seem to be an appropriate remedy until the causes of action have been separated, and it is known with certainty what and how many they are. In this case, there- fore, the more convenient practice would seem to be a motion in the first instance to make the pleading more certain and definite by arranging it into distinct causes of action, or a motion to strike out the redundant matter and surplusage and thus reduce it to a single definite cause of action. The latter order would take the place of a demurrer ; the former would be followed by a demurrer after the causes of action had been separated. III. Meaning of the term " Cause of Action ; " Where one Cause of Action only is stated, although several different kinds of relief are demanded. § 452. The cause of action is very often confounded with the remedy. This mistake or misconception is peculiarly apt to occur in cases where, under the code, the plaintiff seeks to obtain legal and equitable relief combined, the right to such reliefs springing from the same state of facts. To avoid this tendency to confusion, it is absolutely necessary to ascertain and fix with certainty the true meaning of the term " cause of action." The American courts of the present day seem to avoid the JOINDEE OF CAUSES OF ACTION. 495 announcement of any general principle, or the giving of any general definitions. While, therefore, they have repeatedly held that but one cause of action was stated in a case before them, and have carefully distinguished it in that instance from the reliefs demanded, they have not attempted to define the term " cause of action " in any general and abstract manner, so that this definition might be used as a test in all other cases. We shall obtain no direct help, therefore, from their decisions ; but they will furnish examples and tests to determine wliether any definition which may be framed is accurate. I shall, however, attempt a definition or description, basing it upon an analysis of the essential elements which enter into every judicial proceeding for the protection of a private right on the one side, and the enforcement of a private duty on the other. There are such elements or features which necessarily combine in every action ; they are independent of any judicial recognition ; they exist in the very nature of things ; and, if we can by an accurate analysis discover these elements, we shall at once have obtained a correct notion of the term " cause of action." § 453. Every action is brought in order to obtain some partic- ular result which we term the remedy, which the code calls the " relief," and which, when granted, is summed up or embodied in the judgment of the court. This result is not the " cause of action " as that term is used in the codes. It is true this final result, or rather the desire of obtaining it, is the primary motive which acts upon the will of the plaintiff and impels him to com- mence the proceeding, and in the metaphysical sense it can properly be called the cause of this action, but it is certainly not so in the legal sense of the phrase. This final result is the " ob- ject of the action " as that term is frequently used in the codes and in modern legal terminology. It was shown in the open- ing paragraphs of the introductory chapter that every remedial right arises out of an antecedent primary right and correspond- ing duty and a delict or breach of such primary right and duty by the person on whom the duty rests. Every judicial action must therefore involve the following elements : a primary right possessed by the plaintiff, and a corresponding primary duty devolving upon the defendant ; a delict or wrong done by the defendant which consisted in a breach of such, primary right and duty ; a remedial right in favor of the plaintiff, and a remedial 496 CIVIL REMEDIES. duty resting on the defendant springing from this delict, and finally the remedy or relief itself. Every action, however com- plicated, or however simple, must contain these essential ele- ments. Of these elements, the primary right aud duty and the delict or wrong combined constitute the cause of action in the le- gal sense of the term, and as it is used in the codes of the several States. They are the legal cause or foundation whence the right of action springs, this right of action being identical with the "remedial right" as designated in my analysis. In accordance with the principles of pleading adopted in the new American system, the existence of a legal right in an abstract form is never alleged by the plaintiff; but, instead thereof, the facts from which that right arises are set forth, and the right itself is inferred therefrom. The cause of action, as it appears in the complaint when properly pleaded, will therefore always be the facts from which the plaintiff's primary right and the defend- ant's corresponding primary duty have arisen, together with the facts which constitute the defendant's delict or act of wrong. § 454. The cause of action thus defined is plainly different from the remedial right, and from the remedy or relief itself. The remedial right is the consequence, the secondary right which springs into being from the breach of the plaintiff's primary right by the defendant's wrong, while the remedy is the consum- mation or satisfaction of this remedial right. From one cause of action, that is, from one primary right and one delict being a breach thereof, it is possible, and not at all uncommon, that two or more remedial rights may arise, and therefore two or more different kinds of relief answering to these separate remedial rights. This is especiallj'- so when one remedial right and cor- responding relief are legal, and the other equitable ; but it is not confined to such cases. One or two very familiar examples will sufficiently illustrate this statement, and will show the neces- sity as well as the ease of discriminating between the " cause of action " and the remedy. Let the facts which constitute the plaintiff's primary right be a contract duly entered into by which the defendant agreed to convey to the plaintiff a parcel of land, and full payment by the plaintiff of the stipulated price and per- formance of all other stipulations on his part. Let the delict be a refusal by the defendant to perform on his part. This is the cause of action, and it is plainly single. From it there arise two JOINDER OF CAUSES OF ACTION. 497 remedial, rights and two corresponding kinds of relief; namely the remedial right to a compensation in damages, with the relief of actual pecuniary damages ; and the remedial right to an actual performance of the agreement, and the relief of an execution and delivery of the deed of conveyance. If the plaintiff in one action should state the foregoing facts constituting his cause of action, and should demand judgment in the alternative either for damages or for a specific performance, he would, as the analysis above given conclusively shows, have alleged but one cause of action, although the reliefs prayed for would be distinct, and would have belonged under the old system to different forums, — the common law and the equity courts. Again: let the plain- tiff's primary right be the ownership and right to possession of a certain tract of land, and' let the facts from which it arises be properly alleged ; let the delict consist in the defendant's wrong- ful taking and retaining possession and user of such land for a specified period of time, and let the facts showing this wrong be properly averred in the same pleading. Evidently the plaintiff will have stated one single and very simple cause of action. The remedial rights arising therefrom, and the remedies themselves corresponding thereto, will be threefold, and all of them legal : namely, (1) the right to be restored to possession, with the actual relief of restored possession ; (2) the right to obtain com- pensation in damages for the wrongful withholding of the land, with the relief of actual pecuniary damages ; and (3) the right to recover the rents and profits received by the defendant during the period of his possession, with the relief of an actual pecu- niary sum in satisfaction therefor. Here, also, the single nature of the one cause of action plainly appears, and its evident dis- tinction from the various remedial rights and actual remedies which do or may arise from it.^ § 455. The result of this analysis of the necessary elements which enter into every action is simple, easily to be understood, and yet exceedingly important ; and the principle I have thus deduced will serve as an unerring test in determining whether dif- ferent causes of action have been joined in a pleading, or whether I The fact that the codes generally reliefs or remedies based upon the same seem to treat these different claims for facts which constitute a single cause of relief as distinct causes of action does not action. See Lamed v. Hudson, 57 N. Y. affect the correctness of my analysis; 151, which is based entirely upon the they are plainly no more than separate language of the statute. 82 498 CIVIL REMEDIES. one alone has been stated. If the facts alleged show one primary right of the plaintiff, and one wrong done by the defendant which involves that right, the plaintiff has stated but a single cause of action, no matter how many forms and kinds of relief he may claim that he is entitled to, and may ask to recover ; the relief is no part of the cause of action. In applying this test, however, it must be observed that the single primary right, and the single wrong, which, taken together, constitute the one cause of action, may each be very complicated. For example, the primary right of ownership includes not only the particular subordinate rights to use the thing owned in any manner permitted by the law, but also similar rights to the forbearance on the part of all mankind to molest the proprietor in such use. The facts which constitute the delict complained of may embrace not only the wrongful ob- taining, and keeping possession, in such a case as the one last supposed, but also the procuring and holding deeds of conveyance, or other muniments of title, by which such possession is made pos- sible, and to appear rightful. These suggestions are necessary to guard against the mistake of supposing that a distinct cause of action will arise from each special subordinate right included in the general primary right held by the plaintiff, or from each par- ticular act of wrong, which, in connection with others, may make up the composite but single delict complained of. § 456. On the other hand, if the facts alleged in the pleading show that the plaintiff is possessed of two or more distinct and separate primary rights, each of which has been invaded, or that the defendant has committed two or more distinct and separate wrongs, it follows inevitably, from the foregoing principle, that the plaintiff has united two or more causes of action, although the remedial rights arising from each, and the corresponding reliefs, may be exactly of the same kind and nature. If two separate and distinct primary rights could be invaded by one and the same wrong, or if the single primary right should be invaded by two distinct and separate legal wrongs, in either case two causes of action would result ; a fortiori must this be so when the two primary rights are each broken by a separate and dis- tinct wrong. § 457. The general principle which I have thus drawn from an analysis of the essential elements which make up a judicial action can be applied to all possible cases, and will furnish a sure and JOINDER OF CAUSES OF ACTION. 499 simple test by which to determine whether one or more causes of action have been embodied in any complaint or petition. The demand for relief must be entirely disregarded ; whether single or complex, it forms no part of, and has no effect upon, the " cause of action." Rejecting, therefore, all those portions of the pleading which describe the remedy or relief demanded, the inquiry should be directed exclusively to the allegations of fact which set forth the primary right of the plaintiff and the wrong done by the defendant. If one such right alone, however com- prehensive, is asserted, and if one such wrong alone, however complex, is complained of, but one cause of action is alleged. If the examination discloses more than one distinct and independent primary right held by the plaintiff, and all of them invaded by the defendant, or more than one distinct and independent wrong done by the defendant to the plaintiff's primary right or rights, then the complaint or petition has united different causes of ac- tion, and the rules which control their joinder are brought into operation.^ § 458. Although the decisions do not attempt to furnish any general test by which one may determine the nature of a " cause of action," and whether a pleading contains one or more, they fully recognize the fact that the cause of action is not to be con- founded with the relief, and that the demand for, or the granting of, many forms of remedy, may be based upon a single cause of action. The following cases not only exhibit the proneness to confound the remedy with the cause of action, and the necessity of understanding the essential distinction between them, but they also illustrate, and fully sustain, the foregoing principles, which I have proposed as the test by which such distinction may be at once recognized : A complaint alleged that the plaintiff, being indebted to the defendant upon several promissory notes held by 1 See Davenport v. Murray, 68 Mo. tal Ins. Co., 5 id. 843 ; Young v. Drake, 198; Donovan v. Dunning, 69 id. 436; 8 id. 61 ; Prentice v. Jansen, 7 id. 86; Young V. Young, 81 N. C. 91. As exara- Van Wagener v. Kemp, 7 id. 328; Wil- ples of only one cause of action, although liams v. Peabody, 8 id. 271; Board of several distinct reliefs are asked and ob- Supervisors v. Walbridge, 38 Wis. 179 ; tained, see the following cases : People Liedersdorf v. Flint, 50 id. 401 ; Collins v. V. Tweed, 63 N. Y. 194; 5 Hun, 358; Cowen,52 id. 634 ; Kahn v. Kahn, 16 Fla. Haines v. Hollister, 64 id. 1; Boardman 400; Donovan v. Dunning, 69 Mo. 436; V. Lake Shore, &c. R. K., 84 id. 157 ; Stewart v. Carter, 4 Neb. 564 ; Young v. Tisdale v. Moore, 8 Hun, 19 ; Skidraore Young, 81 N. C. 91 ; Barrett v. Watts, 13 V. Collier, 8 id. 50 ; Walters v. Continen- S. C. 441. 500 CIVIL REMEDIES. the latter, had assigned to it a bond and mortgage as collateral security ; that the defendant had collected the amount due on the bond and mortgage, which was more than sufficient to pay all the notes in full ; that a surplus was left remaining in its hands, and upon these facts demanded payment by the defendant of such balance, and surrender and cancellation of the notes so given by the plaintiff. To this complaint the defendant demurred, on the ground that causes of action had been improperly joined. The New York Court of Appeals held that there was no uniting at all of different causes of action, and that only a single one was stated, although two distinct reliefs were demanded.^ § 459. Actions brought to reform instruments in writing, such as policies of insurance and other contracts, mortgages, deeds of conveyance, and the like, and to enforce the same as reformed by judgments for the recovery of the money due on the contracts, or for the foreclosure of the mortgages, or for the recovery of pos- session of the land conveyed by the deeds, fall within the same general principle. One cause of action only is stated in such cases, however various may be the reliefs demanded and granted. ^ 1 Gaboon v. Bank of Utica, 7 N. Y. 486. The defendant insisted that a cause of action for the recovery of money was united with one equitable in its nature. The court said, per Johnson J. (p. 488) : " The ground on which this case ought to be put is, that the complaint does not con- tain two causes of action. The claim is single. . . . The plaintiff now seeks an account of the proceeds of the mortgage and of their disposition, and to have the balance paid over, and the notes wliich are satisfied delivered up. It is no an- swer to say that the balance of moneys could have been recovered in an action for money had and received. It would none the less have been the proper foun- dation for a bill in equity. ... It is only because there is no dispute about the amount due that there seems to be any room for mistake as to the character of the claim. If that remained to be ascer- tained. It would be the clearest possible case for an account ; and yet this case is not clearer than the one before us. . . . It is, in short, a complaint by a debtor to have his obligation delivered up and can- celled, and an account of the securities pledged, and payment of the surplus. That a claim so simple in its character, so well recognized, and even familiar, under the old practice in chancery, should be seriously regarded as two distinct causes of action, requiring distinct modes of trial, and incapable of being joined in a single suit, is quite as surprising as the doctrine itself, if held to be well founded, would be inconvenient." See also Connor v. Board of Education, 10 Minn. 4-39, 444; Sortore v. Scott, 6 Lans. 271, 275, 276; Reedy v. Smith, 42 Cal. 245, 250. 2 Bidwell V. Astor Mut. Ins. Co., 16 N. y. 263 ; N. Y. Ice Co. u. N. W. Ins. Co., 23 N. Y. 357 ; Guernsey v. Am. Ins. Co., 17 Min. 104, 108, actions to reform a policy of insurance, and to recover the amount due on it as reformed ; Gooding V. McAllister, 9 How. Pr. 123, action to reform a written contract, and to recover a money judgment upon it for the sum due when corrected ; McCown v. Sims, 69 N. C. 159 ; Rigsbee <.. Trees, 21 Ind. 227, actions to reform a promissory note, and to recover the amount thus shown to be due. The decision in the latter case is referred, however, to the special provision JOINDER OF CAUSES OF ACTION. 501 The principle also applies to actions brought against a fraudulent grantor or assignor and his grantees or assignees to set aside the transfers, although made at different times and to different per- sons, and to subject the property to the plaintiff's liens, as in creditors' suits ; or to compel a reconvej'^ance and restoration of possession of the property, as in the case of suits by defrauded heirs or cestuis que trustent, and the like. There is but one cause of action against the various defendants in these and similar suits.^ In like manner, the principle applies to actions brought by persons holding the equitable title to lands against those in whom the legal title is vested, for the purpose of setting aside the deeds under which the latter claim, on the ground of fraud or other illegality, and of recovering or confirming posses- sion and quieting title. The different reliefs which the plaintiff seeks to obtain do not constitute different causes of action.^ It also applies to actions for the foreclosure of mortgages, where the plaintiff seeks to obtain not only a sale of the mortgaged prem- ises, but also a judgment for a deficiency against the mortgagor of the Indiana code, § 72, quoted supra in § 440 ; Hunter v. McCoy, 14 Ind. 528 ; McCIurg V. Phillips, 49 Mo. 315, 316, actions to reform a mortgage, to foreclose as thus corrected, or to reform a deed and quiet the title thereunder ; Walkup u. Zehring, 13 Iowa, 306, action to correct mistakes in a series of title-deeds, to set aside another deed of the same land, and to quiet the plaintiflF's title and possession. See, however, per contra, Harrison v, Juneau Bank, 17 Wis. 340, which was a suit to reform a contract, and to recover the money due upon it when corrected. Dixon C. J. said (p. 350) : " The com- plaint contains two distinct causes of ac- tion, — the one equitable, the other legal, — which in strictness should have been separately stated. That for the reforma- tion was equitable, and was for the court ; the other, for the recover}' of money, was legal, and was for the jury." The learned court has here fallen into the evident error of confounding the cause of action with the relief; and its decision is in direct conflict with the doctrine established by the numerous authorities quoted above and below, which involve similar facts and the same principle. The doctrine of this case has become established in Wis- consin; a union of equitable and legal causes of action is hardly permitted in that State. 1 Bassett v. Warner, 23 Wis. 673, 685; Blake v. Van Tilborg, 21 Wis. 672; Bowers v. Keesecher, 9 Iowa, 422 ; Howse t,. Moody, 14 ria. 59, 6-3, 64. These were actions by heirs, or other persons in the position of beneficiaries, against ad- ministrators, or other individuals holding a fiduciary relation to them, and tlieir grantees or assignees, to set aside fraudu- lent transfers, to compel an accounting and a restoration, and other like reliefs. The doctrine of the text was freely ap- plied in them all ; Winslow v. Dousman, 18 Wis. 456; Gates v. Boomer, 17 Wis. 455; North v. Bradway, 9 Minn. 183; Chautauqua Co. Bank v. White, 6 N. Y. 286. These actions were all ordinary creditors' suits. 2 Phillips v. Gorham, 17 N. Y. 270; Laub V. Buckmiller, 17 N. Y. 620 ; Lattin V. McCarty, 41 N. Y. 107. For the facts and extracts from the opinions in these important cases, see supra, cli. 1, §§ 68, 78, and notes. 502 CIVIL REMEDIES. and other persons who are personally liable for the debt. In several States the codes expressly authorize such actions.^ The weight of authority, however, in those States whose codes do not contain such express provisions, seems to be the other way ; and the rule therein seems to be generally established, that, in an action of foreclosure, a judgment for a deficiency cannot be ob- tained against any persons liable for the debt other than the mortgagor himself ; it is said that the making such third person a party, and the praying a decree for deficiency against him, is a misjoinder of causes of action.^ A suit by the vendor of land to recover the purchase price, and to enforce his lien therefor upon the premises sold or conveyed, includes but one cause of action, the double relief plainly arising from the single state of facts.^ § 460. The following are some additional instances in which the doctrine has been approved and enforced by the courts, and the cause of action held to be a single one : An action against a husband and wife, brought upon an alleged indebtedness of both, and an agreement of both to secure the same by a mortgage upon the wife's lands, although at the trial the debt was shown to be against the husband alone, and no such agreement as the one alleged was proven ; * an action by the vendee in a land contract for a specific performance and for damages, where judgment was given for damages alone ;^ an action by the heirs and adminis- trator of a deceased cestui que trust against the trustee who held both real and personal estate in trust, for an accounting, a con- veyance of the land, and a transfer of the personal property ;^ an 1 Conn. Mut. Life Ins. Co. i/. Cross, 18 foreclosure and sale on the mortgage, any Wis. 109 ; Sauer v. Steinbauer, 14 Wis. issue of fact affecting the former demand 70 ; Weil v. Howard, 4 Ne v. 384 ; Greither for relief must be tried by a jury it either V. Alexander, 15 Iowa, 470, 473, per party require it. See also McCarthy w. Wright C. J. ; Eastman v. Turman, 24 Garraghty, 10 Ohio St. 438. Cal. 379, 382, per Sawyer J. ; KoUins v. 3 Stephens v. Magor, 25 Wis., 533 ; Forbes, 10 Cal. 299 ; Farwell v. Jackson, Turner v. Pierce, 34 Wis. 658 ; Walker 28 Cal. 105. t. Sedgwick, 8 Cal. 398. In the latter 2 Faesi v. Goetz, 15 Wis. 231 ; -Gary case, the action was on notes given for V. Wheeler, 14 Wis. 281 ; Jessup v. City the price. Bank, 14 Wis. 331 ; Stilwell v. Kellogg, * Marquat v. Marquat, 12 N. Y. 336. 14 Wis. 461 ; Borden v. Gilbert, 13 Wis. 6 Barlow v. Scott, 24 N. Y. 40 ; Stern- 670 ; Doan v. Holly, 26 Mo. 186 ; 25 Mo. berger .;. McGovern, 56 N. Y. 12, 21. 357. In Ladd v. James, 10 Ohio St. 437, it And see Duvall v. Tinsley, 54 Mo. 93, was said that when a mortgage is given to 95. secure a note, and an action is brought , ^. Eiohtmyer <>. Richtmyer, 50 Barb. setting out both, and demanding judg- 55. ment for money on the note, and for a JOINDEK OF CAUSES OF ACTION. 503 action to remoYe a nuisance, for damages, and for an injunction ; i for admeasurement of dower, possession and recovery of rents and profits ; ^ by one tenant in common against the other, to compel a specific performance of the latter's agreement to convey his share, or for a partition ; ^ an action by a stockholder against a bank, its oSicers, and their assignee, to set aside an assignment, to remove the officers, for an accounting, and for a winding-up of the corporation, — aU based upon the fraudulent practices of the officers ; * where a debtor who had executed a deed to A. in trust for his creditor B. alleged that the two had fraudulently sold the land which had been bought in by B., and sought to set aside the sale and to redeem ; ^ an accounting against the executor of a father and the administrator of his son, where the estates were so mingled and confused that a separate accounting was impossible ; ^ an action against the executor of a lessee who had continued to occupy the premises, to recover the rent accruing before the death, as well as that accruing after ; '' an action to recover damages for negligently driving against and injuring the plaintiff and his horse and carriage ; * an action to recover damages for fraudulent representations in the sale of some sheep, the plaintiff claiming special damages for the destruction of his entire flock, caused by the communication of disease from those which he had purchased ; ^ an action for malicious prosecution, in which special acts of wrong and damage were alleged ; i" and, it has been said, an action to recover damages for several distinct and separate breaches of one contract. ^^ 1 Davis V. Lambertson, 56 Barb. 480. more than doubtful. Mason J. makes the 2 Brown v. Brown, 4 Robt. 688. cause of action to consist of the delict 3 Hall V. Hall, 38 How. Pr. 97. This alone. Certainly the plaintiff's right to decision is certainly opposed to the prin- his own person and to his property were ciple stated in the text, and to the weight different rights, and the injury to them of authority. Two different primary created two causes of action. rights are clearly stated ; one based upon ' Wilcox v. McCoy, 21 Ohio St. 655, the contract, and the other upon the citing Packard v. Slack, 32 Vt. 9. ownership in common. ^° Schenok v. Putsch, 32 Ind. 838. * Mitchells. Bank of St. Paul, 7 Minn. " Fisk v. Tank, 12 Wis. 276, 298, per 252, 255. Dixon C. J. The acts and defaults com- 5 McGlothlin v. Hemery, 44 Mo. 350. plained of in this case can hardly be The opinion in this case is an elaborate called distinct and separate breaches, discussion of the entire doctrine. See Roehring v. Huebschmann, 34 Wis. « McLachlan v. Staples, 13 Wis. 448, 185; Kansas City Hotel Co. v. Sigement, 451. 53 Mo. 176, that different items of an 7 Pugsley V. Aikin, 11 N. Y. 494. account or claim constitute but one cause 8 Howe V. Peckbam, 10 Barb. 656 (S. of action. T.). The correctness of this decision is 504 CIVIL KEMEDIES. § 461. To the principle which I have thus stated, and the doc- trine approved b}' such an overwhelming weight of judicial authority, there was opposed a series of decisions in Missouri, which, while they remained unquestioned, rendered the law of that State widely different in this respect from that which was established in other commonwealths. The Supreme Court held in numerous cases, and a great variety of circumstances, that where upon the facts the plaintiff would ultimately be entitled to different kinds of relief, — such as, for example, the setting aside deeds of conveyance to the defendant, and the recovery of the possession of the land, — if, after alleging all the facts, he should demand the separate reliefs, his complaint would contain different causes of action, and would be held bad on demurrer, or even judgment arrested after verdict, or reversed on appeal because of the error. In other words, the court completely identified the relief, and even the prayer for it, with the cause of action.^ The court has, however, recently receded from this most untenable position, and seems to have overruled this long series of decisions.^ The Missouri court seems to have finally brought the law of that State in reference to the subject-matter under consideration into harmony with the plain intent of the code and the well-settled doctrines of equity jurisprudence, as well as into a conformity with the rule settled by the unanimous consent of other courts. § 462. I have thus described the cases in which but one cause of action is alleged, althougli the man}' and sometimes conflicting demands for relief may make it appear that several causes of action have been united and mingled together in the pleading. I have stated a general principle which will furnish a certain test for determining all such cases, by ascertaining what allegations contain the " cause of action," and what contain the demands for relief, and by showing the essential nature of each, and the necessary distinctions between them. I shall now proceed to consider the classes of cases in which different causes of action are united either properly or improperly. 1 Curd V. Lackland, 43 Mo. 139 ; See also other cases of the same import, Yfynn v. Cory, 43 Mo. 301 ; Gray v. cited supra, §§ 92, 79. Payne, 43 Mo. 203 ; Peyton v. Rose, 41 2 Henderson v. Dickey, 50 Mo. 161, Mo. 257; Gott v. Powell, 41 Mo. 416; 165, per Wagner J.; Duvall v. Tinsley, Moreau «. Uetchemendy, 41 Mo. 431. 54 Mo. 93. JOINDEK OF CAUSES OF ACTION. 505 IV. The Joinder of Causes of Action arising out of the same Trans- action or Transactions connected with the same Subject of Ac- tion ; Legal meaning of the terms '■'■Transaction " and " Subject of Action." § 463. The class which is described by the language of the codes quoted in the above heading is broad, comprehensive, vague, and uncertain. The principal design was undoubtedly to embrace the vast mass of equitable actions and causes of action which could not be classified and arranged in any more definite manner ; and the language was properly left vague, so that it might not in any manner interfere with the settled doctrines of equitable procedure and pleading, parties and remedies. Al- though this general design is very apparent, yet it is no less evident that the author of the clause failed to distinguish between the " cause of action " and the remedy or relief which is sought to be obtained by means of the action. The most fre- quent application of this class in the actual administration of justice has been and will be to equitable actions : but the lan- guage is not confined to them ; it includes legal controversies as well. If all the other requisites of the statue are complied with, legal causes of action of the most dissimilar character — for example, contract and tort — may be united in one proceeding, provided they all arise out of the same transaction, or out of transactions connected with the same subject of action. With respect to equitable cases, there cannot be much difficulty ; it is always easy to say, and perhaps to see, that the facts constituting the causes of action arise at least in some vague manner from the same transaction, or from transactions connected with the same subject of action. With respect to legal cases the difficulty is much greater, and is sometimes impossible to be overcome by any logical reasoning. The question will be sometimes presented, not only whether the facts constituting two or more causes of action have arisen from the same transaction, but whether it is possible, in the nature of things, that they could arise in such a manner. § 464. A full interpretation of the language used in the codes would result in a general rule applicable to all actions ; a rule which should determine when causes of action may and do arise 506 CIVIL KEMEDIES. out of the same transaction, or out of transactions connected with the same subject of action. This rule would be obtained, not from an analysis of all possible causes of action, but from a construction of the language used hy the legislature ; and it would require a legal definition, in an accurate but universal manner, of the terms " transaction," " connected with," and " subject of action." These three terms are the controlling words upon which the whole clause turns ; and until the courts shall have defined them in a general and positive manner, all attempts at interpreting the language and deducing any com- prehensive and practical rule from it must be futile. Until such a definition is made, each case must be decided upon its own circumstances, in a mere empirical method, so that the confusion and uncertainty will continue, and even increase, in the place of the uniformitj' and certainty in the practice which the profession and suitors have the right to demand. In short, the courts must break away from the judicial habit which has of late years grown upon them, and must be willing to attempt the discussion and settlement of definitions, principles, and doctrines connected with the reformed procedure, in a general and comprehensive form. Although little aid can be derived from judicial decisions I shall attempt the extremely difficult task of defining these terms, or, to be more accurate, shall attempt to describe their legal significance and effect, and thus to aid in reaching a gen- eral rule or principle by which to determine whether any given cases are embraced within the class designated by the legis- lature. § 465. In corroboration of the statement made above in regard to the general purport and object of the class in question, I quote the language used by an eminent judge of the New York Court of Appeals, which, while it contains some unjust remarks upon the authors of the New York code, is a very pointed and accu- rate descxiption of the clause and of its immediate design : " In respect to the joinder of causes of action, the provision of the law, so far as is material to the question, now is, that 'the plain- tiff may unite in the same complaint several causes of action, whether they be such as have heretofore been denominated legal or equitable, or both, where they all arise out of the same trans- action or transactions connected with the same subject of action.' The authors of the code, in framing this and most of its other JOINDEK OF CAUSES OF ACTION. 507 proyisions, appear to have had some remote knowledge of what the previous law had been. This provision as it now stands was introduced in the amendment of 1852, because the successive codes of 1848, 1849, and 1851, with characteristic perspicacity, had in effect abrogated equity jurisdiction in many important cases by failing to provide for a union of subjects and parties in one suit indispensable to its exercise. This amendment, there- fore was not designed to introduce any novelty in pleading and practice. Its language is, I think, well chosen for the purpose intended, because it is so obscure and so general as to justify the interpretation which shall be found most convenient and best calculated to promote the ends of justice. It is certainly impos- sible to extract from a provision so loose, and yet so comprehen- sive, any rules less liberal than those which have long prevailed in courts of equity." ^ Mr. Justice Comstock plainly regards it unnecessary, if not impossible, to attempt a definition of the terms employed in the passage which he quotes, and would leave each case to be decided upon its own circumstances. This is un- doubtedly the easier method for the courts to pursue ; but suit- ors, as well as the profession, have a right to ask from them some rules by which a reasonable degree of certainty as to the correct manner of bringing and conducting causes shall be secured. Re- garded as a statutory enactment of the equity doctrine touching the joinder of causes of action in one suit, the clause perhaps requires no special interpretation, since it may be assumed to permit the previous equitable principles and rules of procedure to exist unchanged. In this light alone it is treated by Mr. Justice _ Comstock in the extract taken from his opinion. But as it ap- plies also to legal actions, and as there were no prior doctrines and rules of practice in courts of law which it reproduces or suffers to remain operative, it does as to them " introduce a nov- elty in pleading and practice." In order to fix its application in such cases, the meaning of its controlling terms must be deter- mined. There was no prior rule of the common-law procedure which permitted the union of a claim upon contract with another arising from violence to property or person under any circum- stances, and yet it is possible that such a combination may be made by virtue of this particular provision. § 466. I shall first collect some general observations which 1 N. Y. & N. H. K. E. V. Schuyler, 17 N. Y. 592, 604, per Comstock J. "508 CIVIL REMEDIES. have been made by the courts upon the legal import of these terms, and shall, with whatever aid is derived from the judicial interpretation, attempt an independent analysis. A complaint united a cause of action for an assault and battery with one for slander, alleging that the defamatory words were uttered while the beating was in actual progress. To a demurrer for a mis- joinder, it was answered that both causes of action arose out of the same transaction. The court disposed of this position in the following manner : " It by no means follows that, because the two causes of action origiuated or happened at the same time, each cause arose 'out of the same ti-ansaction. It is certainly neither physically nor morally impossible that there should be two transactions occurring simultaneously, each differing from the other in essential attitudes and qualities. As here, the trans- action out of which the cause of action for the assault springs is the beating, the pltysical force used ; while the transaction out of which the cause of action for the slander springs is not the beat- ing or the force used, but the defamatory words uttered. The maker of a promissory note might, at the very instant of its delivery and inception, falsely call the payee a thief; and yet who would say that the two causes of action arose out of the same transaction ? It has been held that a contract of warranty and a fraud practised in the sale of a horse at the same trade did not arise out of the same transaction, so as to be connected each with the same subject of action, and that a complaint containing both causes of action was demurrable. ^ Assault and battery and slan- der are as separate and distinct causes of action as any two actions whatever that can be named. The subjects of the two actions are not connected with each other. Each subject is as distinct and different from the other as the character of an indi- vidual is from his bodily structure. The question is not whether both causes of action sprang into existence at the same moment of time. Time has very little to do with solving the real ques- tion. The question is. Did each cause of action accrue or arise out of the same transaction, the same thing done ? It is apparent that each cause of action arose, and indeed must necessarily have arisen, out of the doing of quite different things by the defend- ant, — different in their nature, in all their qualities and charac- teristics, and inflicting injuries altogether different and dissimilar. 1 Sweet V. Ingerson, 12 How. Pr. 331. JOINDER OF CAUSES OF ACTION. 509 The same evidence would not sustain each cause of action, and they may require different answers." ^ It has been held, how- ever, that the two causes of action under exactly the same cir- cumstances do arise out of the same transaction, and may be united in the same complaint.^ § 467. A complaiat contained one cause of action for the breach of a warranty given on the sale of a horse, and a second cause of action for fraudulent representations respecting the qual- ity and condition of the horse made at the same sale, the plaintiff claiming that both causes of action arose out of the same transac- tion. The court said : " It is somewhat difficult to determine the precise extent and boundaries of the first subdivision of § 167 of the code, which provides for the joinder of causes of action where they arise out of the same transaction or transactions con- nected with the same subject of action. In this case the plaintiff first counts in assumpsit on an alleged wlarranty of the horse, and in the second count for fraud and deceit in wrongfully concealing the defects of the same horse. It may be true that these causes of action arise out of the same transaction, to wit, the bargain for the purchase of the horse ; but are they connected with the same subject of action ? The subject of the action is either the con- 1 Anderson v. Hill, 53 Barb. 238, 245, these facts constitute only one transac- perT. A, Johnson J. ; and see Dragoo v. tion. . . . Our code has abolished all com- Levi, 2 Duvall (Ky.), 520, which reaches mon-law forms of action, and has estab- the same conclusion. It should be noticed lished a system for the joinder of actions that Judge .Johnson offers no afBrmative more philosophical and complete in itself, definition of " transaction," except in It follows the rules of equity more closely making " the same transaction " equiva- than it does those of the common law, lent to " the same thing done." See also one object seeming to be to avoid the Wiles V. Suydam, 64 N. Y. 173, per multiplicity of actions, and to settle in Church C. J. ; Hay v. Hay, 18 Hun, 315 ; one suit as equity did, as far as practi- Frencli v. Salter, 17 id. 546 ; Board of cable, the whole subject-matter of a con- Supervisors, 38 "Wis. 179 ; Odgensburgh, troversy. It is probably true that the &c. R. R. c. Vermont, &c. R. R., 63 N. Y. two causes of action for assault and bat- 176 (meaning of " subject-matter of the tery and for slander cannot, under our action " ). code, be united, unless both arise out of 2 Brewer v. Temple, 15 How. Pr. 286 ; tlie same transaction ; but we do not Harris v. Avery, 5 Kans. 146. The first know any reason why they should not be of these was a special term decision, and united when both do arise out of tlie same is expressly overruled in Anderson v. transaction." The court here simply Hill. I quote from the opinion in the assumes that both causes of action did other as an example of the argument on arise out of the same transaction, but the otlier side of the question. The de- does not venture upon any reasons for fendant had wrongfully arrested the plain- that opinion. The decision is a mere tiff, and at the same time called him a begging of the question. thief. The court say: "We think that 510 CIVIL EEMEDIES. tract of warranty, or it is the fraudulent concealment of the de- fects complained of. These causes of action cannot consist with each other. I am inclined to think that the object of the section was to allow the plaintiff to include in his complaint two or more causes of action actually existing, arising out of the same transac- tion, and when a recovery might be had for both in the same action ; and that the joinder must be of those causes of action which are consistent with, not those which are contradictory to, each other." 1 The judge here fell into at least one palpable error and misreading of the statute. If the causes of action arise out of the same transaction, it is not necessary that they should also be connected with the same subject of action. There are two alternatives : first, the causes of action must arise out of the same transaction, that is, one transaction ; or, secondly, they must arise out of transactions which are themselves connected with the same subject of action. ' When it was conceded by the learned judge that the two causes of action in this case arose out of the same transaction, namely, the bargain for the sale of the horse, he had no room for further argument ; the case was practically decided. The real question was, whether they did in fact arise out of the same transaction ; whether the negotiation preceding the sale was the " transaction " within the legal meaning of the provision. The rule laid down at the end of the citation affords no help in solving the difficulty, if indeed it has any meaning whatever. § 468. In a case where the defendants — common carriers — had carried a quantity of wheat of the plaintiffs on their boats from Buffalo to New York, the complaint separately stated two causes of action. The first alleged a wrongful conversion of 340 bushels of wheat, and demanded judgment for their value, as damages ; the second alleged an overpayment of freight on the shipment to the amount of fl70, and demanded judgment for that sum. In passing upon the question raised by the defend- ants' demurrer, the court said : " It must be admitted that the first cause of action is for a tort, and that the second is on an im- plied contract to recover back money paid by plaintiffs under a 1 Sweet V. Ingerson, 12 How. Pr. 331, stood that a vendor cannot enter into a per Bacon J. Wliat inconsistency exists contract of warranty, and also make false between these two causes of action t representations at the same sale, and in Does the learned judge mean to be under- the same language ? JOINDER OF CAUSES OF ACTION. 511 mistake of facts. But the counsel for the plaintiffs insists that both causes of action arise out of the same subject of action, viz., the transportation of wheat from Buffalo to New York, or arise out of transactions connected with that subject of the action, and are therefore joined under the first subdivision of § 167 of the code. Cases throw but little light on the unmeaning generality of the first subdivision of this section. Now, I do not think the transportation of the wheat to New York is the subject of the plaintiffs' action. The plaintiffs have two causes of action. The subject of the first would be the loss, waste, or wrongful conver- sion of the 340 bushels of wheat by the defendants, and their wrongful neglect or act by which the plaintiffs lost their prop- erty. The subject of the second cause of action would appear to be the $170 of the plaintiffs' money, which the plaintiffs overpaid to the defendants on account of freight, and which the defend- ants ought to have paid back to the plaintiffs. But have both these causes of action, or subjects of action, arisen out of the same transaction, within the meaning of this provision of the code ? I do not want to nullify the code, and I have no right to nullify it ; and this provision has, or was intended to have, some meaning. Why, tlien, should I not say that the transaction in this case, out of which have arisen the plaintiffs' two causes of action, and subjects of action, commenced with the shipment of wheat at Buffalo, and has not ended yet, even by the commence- ment of this action ; the plaintiffs' two causes of action being links in the chain of facts containing the transaction, and thus arising out of, or connected with, the same transaction ? By the ' subject of action ' in this section of the code must be intended, not the subjects of the different counts, or of the several causes of action, but of the action as a unit. To say that by the 'sub- ject of action ' is meant the several causes of action nullifies this provision of the code. To give force and effect to it, it appears to me you must say that it means that the plaintiffs can unite several causes of action against the same party, arising out of the same transaction, and nothing more ; and you must treat the concluding words, 'or transactions connected with the same subject of action,' as useless and unmeaning surplusage. Upon the whole, I have come to the conclusion that the plain- tiffs had a right to unite the two causes of action in this com- plaint ; but I have done so, knowing that no reasoning on this 512 CIVIL EEMEDIES., point can have much logical precision, or lead to a satisfactory result."! § 469. This opinion, which I have quoted in full, is one of the most elaborate attempts to be found in the reports at an analysis and definition of these terms. Some observations upon it are appropriate hei-e, before passing to the other citations. It is plain that the learned judge labored under a hopeless confusion, both in respect to his notions of the meaning of the important terms, and in respect to his reading of the clause itself. He is com- pletely afloat as to the legal import of " subject of action," constantly treating it interchangeably with " transaction," and, notwithstanding his disclaimer, confounding it witli " cause of action." Why, in the one case, is the "subject of action" de- clared to be the conversion of the wheat, the wrongful act or neglect by which the wheat was lost to the plaintiffs, — that is, the very delict committed by the defendant, and in the other case declared to be the money, — the very physical thing which the plaintiffs had mistakenly paid to the defendants, and which the defendants were under an implied contract to repay ? It is self- evident that, if by the terra " subject of action " is meant the delict or wrong by which the plaintiffs' primary right of property in their wheat was invaded, it must also mean the wrong in the other case, — that is, the breach of the implied contract to repay the money ; and if it denotes, in the one instance, the money which is the subject of the plaintiffs' claim, it must denote the same in the other. But the great error of the learned judge con- sists in his mistaken reading of the statute. The view of the plaintiffs' counsel, which he repudiates, was certainly simple and intelligible. That view regarded both causes of action as arising out of one and the same transaction, — the transport of the grain, with all of its incidents. After rejecting it, the judge, in fact, returns to this theory at last, and rests his decision upon it. In his discussion, however, he reverses the order of the statute; he treats it as though it required the " subjects of action " to be con- nected with one "transaction," instead of prescribing that the " transactions " should be connected with the same " subject of action ; " and, finding that this construction leads him into diffi- culties from which there is no escape, he finally pronounces the important clause of the section useless surplusage, to be entirely * Adams v. Bissell, 28 Barb. 382, 385, per Sutherland J. JOINDER OF CAUSES OF ACTION. 513 rejected. I need hardly say that courts have no authority to reject any portion of a statute, unless it be absolutely mean- ingless. This clause is certainly not thus without meaning. Causes of action may arise from the same transaction, and they may arise from transactions which are connected with the same subject of action, — that is, which have a common point of con- nection with which they are all united, and which common point is the subject of the action. This, I say, is far from meaningless ; on the contrary, it is a simple and plain expression, as far as the language is concerned, when that language is used in its ordinary and popular signification. The difficulty, ^nd the only difficulty, springs from the question, whether the words are thus used in their proper sense, or whether they must receive a special and technical legal interpretation in order to arrive at the legislative intent, and to frame from them a definite rule which shall be ap- plicable to all possible cases. It is an abuse of judicial power to reject an express provision of a statute on the sole ground of a difficulty in understanding and enforcing it. § 470. In an action by a judgment creditor against his debtor and an assignee of such debtor to set aside transfers, to recover property, and for other relief, it was said by the court : " What is the subject of the action in this case? It is the restitution of the property of the judgment debtor, whom the plaintiff represents. To entitle himself to this relief, the plaintiff avers in his complaint different transactions out of which his right to a restitution flows." ^ There is here a plain confusion of ideas. The restitution of the debtor's property, which is the relief demanded, is the object of the action. If there is anything connected with this matter clear, it is that the authors of the code used the terms " subject of action " and " object of the action " to describe different and distinct facts. § 471. The general theoiy of pleading and of actions embodied in the new system was stated with some fulness by the Supreme Court of California, in an action brought against a steamboat company by a passenger to recover damages. The plaintiff had purchased a ticket from San Francisco to San Juan, being led to believe, by public advertisements of the defendants, that the vessel landed at the latter place. She was carried on to Panama, the boat not stopping at San Juan, and was subjected to many personal 1 Palen v. Bushnell, 46 Barb. 24. .33 514 CIVIL KEMEDIES. discomforts and injuries, and also suffered consequential pecuniary losses and damage. Th5 complaint was in the form of an action for deceit, rather than on the contract, and contained allegations of false and fraudulent representations. In respect to this com- plaint, the court pronounced the following opinion : " Our system of pleading is formed upon the model of the civil law, and one of its principal objects is to discourage protracted and vexatious liti- gation. It is the duty of the courts to assist as far as possible in the accomplishment of this object, and it should not be frittered away by the application of rules which have no legitimate con- nection with the system. The provisions for avoiding a multi- plicity of suits are to be liberally and beneficially construed ; and we see no reason why all matters arising from, and constituting part of, the same transaction, should not be litigated and deter- mined in the same action. Causes of complaint differing in their nature, and having no connection with each other, cannot be united ; but the object of this rule is to prevent the confusion and embarrassment which would necessarily result from the union of diverse and incongruous matters, and it has no application to a case embracing a variety of circumstances, so connected as to constitute but one transaction. . . . Every action under our practice may be properly termed an action on the case ; and it would seem that every ground of relief which can be regarded as a part of the case may with propriety be included in the action. . . . The plaintiffs have brought their suit upon the whole case to recover damages, not only for the breach of the contract, but for the wrongs and injuries committed by the owners and agents of the defendants in that connection. The defendants are liable for all the damages resulting from these causes ; and there is certainly no impropriety in adjusting the whole matter in one controversy." ^ The section found in all the codes defining a " counterclaim " contains the expressions " transaction " and " connected with the subject of action," used in the same sense as in the passage now under consideration. In a few of the de- cisions which have been based upon that section, there is some approach towards a general interpretation of these phrases. The cases are collected in the succeeding chapter, in the section which treats of the counter-claim, and may be consulted for whatever light they throw upon the present discussion.^ 1 Jones V. Steamboat Cortes, 17 Cal. 487, 497, per Cole J. = See Chap. IV. sect. 6. JOINDER OF CAUSES OF ACTION. 515 § 472. It is plain that little real help can be obtained from the foregoing judicial explanations, and we must return to the very language of the statute itself. This language must be care- fully studied, and the proper force and effect given to all its words. In order that different causes of action may be united, they must arise out of a transaction, or out of transactions- Nothing is said about their being connected with or arising out of the same "subject of action." There are two alternatives only : First, these different causes of action may arise out of the same transaction, — that is, out of one ; or, secondly, they may arise out of different transactions ; but in that case these transac- tions must be connected with the same " subject of action." The words " arise out of " are important and emphatic. They indicate a sequence of cause and effect, so that the causes of action must result as consequences from, or be produced by, the transactions. It is plain that there must be a close connection between the transaction, as the origin, and the causes of action, as the pro- duets. § 473. " Transaction " is defined by Worcester as " the act of transacting or conducting any business ; negotiation ; manage- ment ; a proceeding." We must recur to the definition of cause of action already given. It includes the plaintiff's primary right which has been invaded, and the wrongful act or default — the delict — of the defendant by which the right is broken. In order that causes of action may arise out of a transaction, there must therefore be a negotiation, or a proceeding, or a conduct of busi- ness, between the parties, of such a nature that it produces, as necessary results, two or more different primary riglits in favor of the plaintiff, and wrongs done by the defendant which are viola- tions of such rights. The proceeding, or negotiation, or conduct of business, must, of course, be a unit, one affair, or else it would not be a single transaction ; and yet it must^be in its nature com- plex, for it must be the origin of two or more separate primary rights, and of the wrongs which violate them. In order that this may be so, the facts from which the different primary rights flow must be parts of, or steps in, the transaction ; and, for the same reason, the wrongful acts or omissions of the defendant must be parts of the same transaction. If a single transaction — that is, a single, continuous, and complex proceeding, or negotiation, be- tween the parties — is analyzed and reduced into its series of acts 516 CIVIL KEMEDIES. and defaults, and some of these acts are the facts from which spring one primary right in favor of the plaintiff, and other acts are the facts from which spring a different primary' right in his favor, and others still are the violations or breaches of these rights, these two causes of action do truly arise out of the same transaction. § 474. It is clear that every event affecting two persons is not necessarily a " transaction " within the meaning of the statute ; indeed, the word as used in common speech has no such signifi- cation. " Transaction " implies mutuality, something done by both in concert, in which each takes some part. Much less can it be said that, because two events occur to the same persons at the same time, they are necessarily so connected as to become one transaction. The case cited above, in which a cause of action for an assault and battery and one for a slander were united, illustrates this statement. Two events happened simultaneously, the beating and the defamation, but neither was a " transaction " in any proper sense of the word. The wrong which formed a part of one cause of action was the beating ; that which formed a part of the other was the malicious speaking. The plaintiff 's primary rights which previously existed were broken by two independent and different wrongs. The only common point be- tween the causes of action was one of time ; but this unity of time was certainly not a " transaction." Much of the difficulty in construing this language has resulted, I think, from a failure to apprehend the true nature of a " cause of action," from a for- getf ulness that it includes two factors, — the primary right and the wrong which invades it. A "cause of action" cannot be said to "arise out of" an event, when the event produces or con- tains but one of these factors, — the delict or wrongful act. § 475. The same analysis applies also to the remaining portion of the clause, the sole difference being that the causes of action arise out of different transactions instead of one. The common tie between the causes of action in that case is, that the transac- tions themselves are connected with the same " subject of action." What is meant by this term? It cannot be synonymous with "cause of action." This appears from making the substitution, since the result would be, " causes of action may be united when they arise out of transactions connected with the same cause of action ; " which is an absurdity, a mere statement in a circle. JOINDER OF CAUSES OF ACTION. 517 "Subject of action" must, therefore, be something different from " cause of action." It is also different from "object of the ac- tion." The object of the action is the thing sought to be attained by the action, the remedy demanded and finally awarded to the plaintiff. Causes of action cannot arise out of transactions con- nected with the " object of the action," because that object is something in the future, and could have had no being when the transactions took place out of which the causes of action arose. As the causes of action arise out of certain transactions, and as these transactions are connected with a " subject of action," it is plain that this subject must be in existence simultaneously with the transactions themselves, and prior to the time when the causes of action commence. This fact also shows that the " subject " must be something other than the cause of action. The phrase was not used in legal terminology prior to the code, but another one very similar to it was in constant use, and had acquired a well- defined meaning ; namely, " subject-jnatter of the action." Thus the rule is familiar, that courts must have jurisdiction of " the sub- ject-matter of the action," as well as over the parties. Courts might have the power in a proper case to grant any kind of relief, legal or equitable, and to entertain any form of proceeding, and yet not have jurisdiction over some particular " subject-matter." The term " subject of action," found in the code in this and one or two other sections, was doubtless employed by its authors and the legislature as synonymous with, or rather in the place of, " subject-matter of the action." I can conceive of no other inter- pretation which will apply to the phrase and meet all the require- ments of the context. " Subject-matter of the action " is not the " cause of action," nor the " object of the action." It rather de- scribes the physical facts, the things real or personal, the money, lands, chattels, and the like, in relation to which the suit is prose- cuted. It is possible, therefore, that several different " transac- tions " should have a connection with this " subject-matter," or, what seems to me to be the same thing, with this " subject of action." The whole passage is, at best, a difficult one to construe in such a manner that any explicit and definite rule can be ex- tracted from it. I remark, in bringing this analysis of the lan- guage to a close, that the latter clause of the subdivision — "or transactions connected with the same subject of action" — can probably have no application to legal causes of action, and can 518 CIVIL REMEDIES. Only be resorted to in practice as describing some equitable suits which involve extremely complicated matters. In fact, Mr. Justice Comstock's position is doubtless correct, that the entire subdivision finds its primary and by far most important applica- tion to equitable rather than to legal proceedings. § 476. Although the courts have generally refrained from any discussion of this clause, they have had frequent occasion to in- voke its aid : and the following cases will furnish some examples of judicial decisions based upon it. The causes of action united in the same complaint or petition were held to have arisen out of the same transaction, where one was for the recovery of the pos- session of land, and the other was for the value of its occupation by the defendant ; ^ for an accounting and payment of the balance found due, and for the surrender up of securities ; ^ for injuries to the person and for those to the property of a passenger, com- mitted by the wrongful acts and frauds of a steamboat company on the same voyage ; ^ where the owner of stereotype plates of a book alleged a breach of defendant's contract to furnish paper and print a book therefrom, and also injuries negligently done to the plates themselves while in the defendant's possession ; * de- taining the plaintiff's chattels, and wrongfully and negligently injuring them while thus detained;^ an action by a judgment creditor against his debtor and another to recover back money wrongfully paid as usury to such person by the debtor, to compel this assignee to account for actual securities placed in his hands by the debtor, and to set aside certain transfers of personal prop- erty made by the debtor ; ^ an action in which the plaintiff sought to recover the agreed price in a contract for building a house, damages caused by the defendant's delay to have the premises ready in time for the work to go on, and the price of extra work and materials, and finally to set aside, on the ground of fraud, an award made in reference to certain of the matters in dispute ; "^ an action to recover damages for the conversion of goods by the defendant, a common carrier, and to recover back money mis- 1 Armstrong n. Hinds, 8 Minn. 254. * Badger v. Benedict, 4 Abb. Pr. 176. See Larned v. Hudson, 57 N. Y. 151. 6 Smith v. Orser, 4.3 Barb. 187. ^ Montgomery v. McEwen, 7 Minn. » Palen v. Buslinell, 46 Barb. 24. It 351. niight, perhaps, have been better to say s Jones V. Steamboat Cortes, 17 Cal. that there was but one cause of action. 487, 497. See, however, Grant v. Mc- ' See v. Partridge, 2 Duer, 463. Carty, 38 Iowa, 468. JOINDEE OF CAUSES OF ACTION. 519 takenly paid as freight for the same goods ; ^ where lauds incum- bered by an outstanding mortgage Iiad been conveyed by a warranty deed, and the grantee therein brought an action against the grantor and the holder of the mortgage, and prayed a judg- ment fixing the amount due upon the mortgage, if any, and directing the same to be delivered up and cancelled upon payment by the plaintiff of the amount so ascertained, and ordering the grantor thereupon to repay that sum to the plaintiff;^ action against a constable and the sureties upon his ofBcial bond, alleg- ing the issue of an execution to such officer and a levy by him upon property of the judgment debtor sufficient to have made the amount due, a neglect to return the execution, the receipt and collection of the money, and refusal or neglect to pay over the same to the plaintiff ; ^ where the plaintiff alleged that he had placed flOO in the defendant's hands for the purpose of entering an eighty-acre lot in the plaintiff's name, at the expected price of f 1.25 per acre ; that the defendant thereupon entered the lot in his own name, but paid therefor only |10, and converted the residue of the money to his own use ; and demanded judgment for the f 90 and interest, and also for a convej'ance of the land to himself; * an action to recover a specified sum due upon a written contract, and damages for the breach of certain covenants in the same instrument, and also to compel the specific performance of a covenant to convey land contained therein ;^ where one cause of action was for the defendant's deceit practised in the sale of oil leases to the plaintiff, and the other was for money had and received, being the pripe paid by the plaintiff in the same sales.^ The owner in fee of land having been induced by the defendant's fraud to convey the same by a deed in which the wife joined, the 1 Adams v. Bissell, 28 Barb. 382, 385. had and received by the defendant " as 2 Wandle v. Turney, 5 Duer, 661. AI- above stated." This, it was held, incor- though Bosworth J. says the causes of porated into the latter counts the aver- action all arose out of the same transac- raents of the former, and showed that all tion, yet, upon the principles already arose out of the same transaction. See stated in the text, there was actually but also Gertler v. Linscott, 26 Minn. 82 (if a one cause of action. cause of action on contract and one for a ' Moore v. Smith, 10 How. Pr. 361. tort arise out of the same transaction, or ^ Callaghan v. McMahan, 33 Mo. 111. out of a series of connected transactions, 6 Gray v. Dougherty, 25 Cal. 266. they may be joined) ; Barr r. Shaw, 10 6 Woodbury v. Delap, 1 N. Y. S. C. Hun, 580 (causes of action for different 20; 8. c. 65 Barb. 501. The first count torts may arise out of the same transac- set out the sale and the deceit and the tion, and be joined); Young v. Young, damages ; the others, for money had and 81 N. C. 91. received, alleged that the money had been 520 CIVIL REMEDIES. grantor and his wife brought a joint action to recover damages for the deceit. The New York Court of Appeals held that the husband had a cause of action for the loss of the land which he owned in fee ; that the wife had a cause of action for the loss of her inchoate dower right; that they could recover one joint judg- ment as a satisfaction for both claims ; and, finally, that the two causes of action were properly united, since they arose out of the same'transaction, — namely, the bargaining and sale of the prem- ises and the fraudulent representations made therein by the defendant.^ Several of the cases cited in the last preceding sub- division of this section might perhaps be regarded as instances of causes of action arising out of the same transaction ; they cer- tainly would be so if they were to be considered as embracing more than one cause of action.^ § 477. The following are examples of causes of action con- tained in the same complaint or petition which have been held not to arise out of the same transaction : for an assault and bat- tery and for a slander, although committed simultaneously ;^ for a breach of a warranty of soundness given on the sale of a horse, and for fraudulent representations as to the soundness made at the same sale ; * a claim by the plaintiffs as next of kin and lega- tees of A., two of the defendants being A.'s executors, and a claim by them as legatees of B., one of the defendants being B.'s executor, the action being for an account and settlement of both estates.^ 1 Siniar v. Canaday, 53 N. Y. 298, 305, Phillips v. Gorham, 17 N. y. 270 • Laub per Folger J. The complaint was not v. Buckmiller, 17 N. y. 620 ■ N Y Ice framed at all upon the theoTy which the Co. v. N. W. Ins. Co. 23 N Y 357 ■ court adopted in making this decision. It Lattln v. McCarty, 41 N. Y. 107 -Howe did not purport to set forth two separate v. Peckham, 10 Barb. 656 ; Blake v. Van causes of action ; it was a joint complaint, Tilborg, 21 Wis. 672 ; Fish v. Berkey andallegeda joint cause of action in favor 10 Minn. 199. of the plaintiffs, and demanded a single o Anderson v. Hill, 53 Barb. 238, 245 joint judgment. The peculiar feature of Dragoo v. Levi, 2 Duv. (Ky.) 520. ' But^ the decision is that which sustains a single per contra, see Harris v. Avery, 5 Kans! judgment for one sum as damages in sat- 146 ; Brewer v. Temple, 15 How. Pr. 28a isfaction of both demands, although the * Sweet v. Ingerson,'l2 How. Pr. 331, case is expressly based upon the doctrine In accordance witli the principles main that there were separate and distinct tained in the text, the two causes of action causes of action. Assuming that the in this case clearly arose out of the same court was correct in this position, they transaction ; indeed, a more illustr.stive plainly both arose out of the same trans- example could hardly be found among action. purely legal actions. 2 See supra, §§ 459, 460, and especially 6 viall v. Mott, 37 Barb. 208. The Bidwell V. Astor Ins. Co., 16 N. Y. 263; Supreme Court of North Carolina, in a JOINDER OF CAUSES OF ACTION. 521 § 478. When the plaintiff unites two causes of action which can only be joined because they arise out of the same transac- tion, or out of transactions connected with the same subject of action, the facts showing such common origin or connection must be averred, so that the court may see whether the joinder is proper. A mere general allegation that the causes of action all arose out of the same transaction is of no avail^ and would be surplusage.^ V. Instances in which the proper Joinder of Causes of Action is connected with the proper Joinder of Defendants; Discussion of the provision that all the Causes of Action must affect all of the parties. § 479. Questions relating to the uniting of causes of action may be presented in two forms: In whatever one of the enumer- ated classes they fall they may (1) be against the single defend- ant, or the several defendants all equally liable, — perhaps jointly liable, — in which case the inquiry has to do solely with the joinder of the causes of action themselves, and is not concerned with the joinder of the defendants ; or (2) they may be against several defendants unequally and differently liable, one cause of action affecting a portion of the defendants more directly and substantially than it does others. In such case the inquiry has to do with the joinder of the defendants as well as with the union of the causes of action. I shall, in the present subdivision, ex- amine the latter of these cases. It is required by all the codes as a prerequisite to the uniting of different causes of action, that, notwithstanding they may all belong to the same class, they must affect all the parties to the action. The only exception men- tioned in any statute is the action to foreclose a mortgage;^ § 480. While the causes of action thus united must affect all very recent case, seems to deny any opera- the section. See N. C. Land Co. v. tive force whatsoever to the first clause Beatty, 69 N. C. 329, 334. of the section under consideration, which, ' Flynn v. Bailey, 50 Barb. 73. See as it occurs in the code of that State, is Woodbury v. Delap, 1 N. Y. S. C. 20 ; 66 identical with the one given in the text. Barb. 501. Although the language used by the court ^ This exception, in fact, confounds is only a dictum, it is a strong expression " relief" with " cause of action." It sim- of opinion that no causes of action can be ply permits defendants to be joined against united by reason of that particular pro- whom some special relief is demanded, and vision unless they are embraced within is therefore entirely unnecessary. In every some of the other classes mentioned by such suit there is only one cause of action, 522 CIVIL KEMEDIES. of the parties, it is not necessary that they should affect them all equally or in the same manner.^ If equality and uniformity were required, a large part of the equity jurisdiction would be swept away at one blow ; for it is the distinguishing feature of that sys- tem that all persons having any interest in the subject-matter of the controversy or in the relief granted should be made parties, however various and unequal their interests may be. Indeed, equality of right or of liability was not essential in all common- law actions. It was only when the proceeding was in form joint that this equalitj"- was indispensable according to legal concep- tions. The provision of the codes has not changed any of these former doctrines ; it simply enacts in one statutory and compre- hensive form the principle which controlled the courts, both of law and equity, under the former practice. It leaves an equita- ble action to be governed by the same rules as to parties which controlled it when equity was a distinct department, and it ex- tends the theory at least to legal actions as well. The practical effect of this clause in the statute will be best learned from an examination of the cases in which it has been applied, and from the judicial construction which has been thereby put upon it. Those which are quoted first in order pronounce against the pro- priety of the union made by the plaintiff, because the causes of action did not affect all the parties. § 481. The owner of a tract of land had made O. his agent for the purpose of selling it, and O. had sold the land to S., who also stood in a fiduciary relation to the owner, and S. had conveyed portions of the land to different purchasers. The original owner thereupon brought an action against O. and S., charging fraud and a violation of their fiduciary duty against both. The com- plaint demanded a judgment of damages against O. for his deceit, and against S. an account and payment of all the proceeds and profits that he had or might have made from his own sales, and a reconveyance of the portion yet remaining unsold. The New unless a common-law action on the note Cohle, 76 N. C. 391 ; Mendenhall v. Wil- or bond is combined with the foreclosure, son, 54 Iowa, 589 ; Thorpe v. Dickey, 51 1 Vermeule v. Beck, 15 How. Pr. 333. id. 676 ; Cogswell v. Murphy, 46 id. 44 ; The following cases furnish illustrations Addicker v. Schrubbe, 45 id. 315 ; Hack- of the questions discussed in this and ett v. Carter, 38 Wis. 394; Heath v. the succeeding paragraphs. Schnilzer v. Silverthorn Min. Co., 39 id. 146 ; Green Cohen, 7 Hun, 665; Burton v. Speis, 5 v. Nunnemacker, 36 id. 50; Lull v. Fox, Hun, 60 ; Nichols v. Drew, 19 id. 490 ; &c. Co., 19 id. 101 ; Arimond v. Green Cook V. Horwitz, 10 id. 586 ; Brown v. Bay, &c. Co., 31 id. 316. JOINDER OF CAUSES OF ACTION. 523 York Court of Appeals held that the causes of action were im- properly united ; and, as its opinion is instructive, I quote from it at some length. " The plaintiff has elected to regard S. as his trustee, and the complaint as to him and the decree proceed on this basis. The plaintiff therefore elects to affirm the sale as to S. He cannot %ino flatu affirm it as to him, and disaffirm it as to the defendant O. It is difficult to see how under the provision of § 167 of the code these causes of action may be united in the same complaint. Although it may be said that both causes of action arise out of the same transaction, namely, the sale of the plaintiff's land to the defendant S., yet the cause of action against O. is for an injury to the plaintiff's property, while that against S. is a claim against him as a trustee by operation of law. The causes of action joined in the complaint do not affect both of the parties defendant. O. is not affected hj nor in any way reponsi- ble for S.'s acts as plaintiff's trustee, and the complaint does not profess to make him liable therefor. So S. is not sought to be made responsible for the fraudulent acts of 0. On the plaintiff's own showing, he has separate and distinct causes of action against each of the defendants which cannot Vje joined under the code." ^ § 482. The same doctrine was asserted and ruling made in the following cases, the causes of action being held improperly united in each because they did not affect all of the parties : Where one cause of action was on a judgment against the defendant and two others, a second on a judgment against the defendant and one other, while a third was on a judgment against the defendant alone ; ^ where the first cause of action was against a husband and wife for a slander by the wife, and the second against the husband for his own slander;^ an action against a husband and wife on a contract made by both in the wife's business, where a personal judgment was demanded against him, and a judgment to enforce the demand against the wife's separate estate ; * where the plaintiff's agent, with whom certain securities had been de- posited, had transferred them, in violation of his duty, to various assignees, and a single action was brought against him and all these transferees to set aside the assignments and to recover the bonds or their proceeds ; ® an action by a reversioner against the 1 Gardner v. Ogden, 22 N. Y. 827, 340, And see Dailey v. Houston, 68 Mo. 361, per Davies J. 366. 2 Barnes v. Smith, 16 Abb. Pr. 420. ■• Palen v. Lent, 5 Bosw. 713. 8 Malone v. StUwell, 15 Abb. Pr. 421. 8 Lexington, &c. E. K. «. Goodman, 15 524 CIVIL KEMEDIES. tenant for life and the occupant to recover damages for injuries done by them to the land, the complaint containing a cause of action against one defendant for cutting and removing timber, a second against both for the same acts, and a third against both for removing fire-wood already cut ; ' an action for deceit, in which one count of the complaint alleged fraudulent acts against a part of the defendants, and other counts charged similar acts against all ; 2 where damages were claimed from the owner of a city lot for making an excavation in a street, into which the plaintiff fell, and from the city for permitting the street to be broken up ; ^ an action .against two defendants to recover damages for the flowing of plaintiff's lands, the complaint alleging in the first count that one defendant erected a dam in the north branch of a certain river, and in the second count that the other defendant con- structed a dam in the south branch of the same stream, by the combined effects of which obstructions the injury was done ; * an action against two defendants, in which the claim against one was for goods sold and delivered, and that against the other was on his promise to pay the price thereof ; ^ an action against a public officer and the sureties on his official bond for a breach thereof, the complaint containing also a cause of action against the officer alone for damages caused by a distinct and different negligent act;^ a cause of action against A. B. and C. for money loaned to them, and one against A. D. and E. on a note given by them as collateral security for the same loanJ § 483. The causes of action must not only affect all the defend- ants, but all the plaintiffs as well, the provision of the codes ap- plying equally to both parties.^ Thus an action by three persons How. Pr. 85. This was a special term against tlie sureties on an administrator's decision, and is tlierefore not entitled to bond for a breach thereof, and against the much authority. The case is clearly administratorliimself for a violation of his in principle identical with the ordinary trust. Howse u. Moody, 14 Fla. 59, 64, creditor's suit. 65. 1 Eodgers v. Eodgers, 11 Barb. 595. '' Farmers' Bank v. Bayliss, 41 Mo. -' Wells V. Jewett, 11 How. Pr. 242. 274. And see Lane v. State, 27 Ind. 108. » Trowbridge v. Forepaugh, 14 Minn. » Where a husband and wife sued for 133. an assault and battery upon the wife, and * Lull V. Fox & Wis. Imp. Co., 19 the petition set forth a claim for the in- Wis. 100, 102. juries sustained by the wife, for which s Sanders ». Clason, 13 Minn. 379. See both must sue, and also a claim for the also cases in regard to guarantors, supra, loss of her services, for which he alone § 306. must sue, two causes of action were held « State 0. Kruttsehnitt, 4 Nev. 178 ; to be improperly united. Dailey v. Hous- Ghirardelli v. Bourland, 32 Cal. 585. And ton, 58 Mo. 361, 366. JOINDER OF CAUSES OF ACTION. 525 having entirely distinct and separate claims against the defend- ant for work and materials, brought to foreclose their individual mechanics' liens on their debtor's house, w^as held improper ; > and where six persons, owners of distinct and separate parcels of land through which a stream ran — each being entitled to the use of the water as it passed through his land — joined in a suit to restrain the defendant from diverting the entire stream at a point above all their premises, the Supreme Court of Nevada condemned the complaint as improperly uniting, the causes of action and the plaintiffs.^ In an action to recover possession of land brought by two plaintiffs, the complaint contained two counts : the first averred a title to the premises in one of the plaintiffs, while the second alleged a different and even hostile title in the other. A demurrer to this complaint was sustained, on the ground that the two causes of action did not affect both of the plaintiffs. The former practice of naming different lessors of the plaintiff in eject- ment, and afterwards of uniting different plaintiffs who claim under distinct and hostile titles, has been abolished by the code. " The action to recover possession of land now stands on the same footing precisely in respect to parties and the union of causes of action with all other actions." ^ § 484. Causes of action to recover possession of different chat- tels from different defendants cannot be joined in the same suit.* Nor can a cause of action against a trustee to compel the convey- ance of the trust property be united with a cause of action against an administrator on a demand growing out of the same property.^ A cause of action against an executor, administrator, or trustee, in his representative character, cannot be united with one against 1 Harsh v. Morgan, 1 Kans. 293, 299. recover possession of one parcel of land 2 Schultz V. Winter, 7 Nev. 130. Por witli damages for witliholding the same, contrary cases, see supra, § 269 (n.) 1. it has been held, cannot be joined with a 3 Hiibbell V. Lerch, 62 Barb. 295, 297, similar cause of action in respect to an- perT. A. Johnson J. ; St. John i'. Pierce, other parcel, serf ff«. Holmes y. Williams, 22 Barb. 362 ; Hubbell v. Lerch, 58 N. Y. 16 Minn. 164, 169 ; nor can a claim for a 237, 241. specific performance against A. be joined * Robinson v. Rice, 20 Mo. 229. with a claim to recover possession of land 5 McLauglilin v. McLaughlin, 16 Mo. against B., Fagan v. Barnes, 14 Fla. 53, 242. The following cases are additional 56 ; nor can a cause of action for fraud illustrations of the rule that the causes of against one defendant be united with a action must affect all the parties. Chee- cause of action upon contract against an- ly's Administrator v. Wells, 33 Mo. 106 ; other, Van Liew v. Johnson, 6N. T. S. C. Liney v. Martin, 29 Mo. 28; Stalcup v. 648; N. C. Land Co. v. Beatty, 69 N. 0. Gamer, 26 Mo. 72. A cause of action to 329. 526 C1¥IL EEMEDIES. the same individual personally. The doctrine was recently stated by the New York Court of Appeals, as the result of an elaborate examination of the authorities: "The following principles are settled by these authorities : 1. That, for all causes of action arising upon contract made by deceased in his lifetime, an action can be maintained against the executor or administrator as such, and the judgment would be de bonis testatoris, or intestatoris. 2. That in all causes of action, where the same arise upon a contract made after the death of the testator or intestate, the claim is against the executor or administrator personally, and 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." ^ § 485. Under the provisions of the Indiana code an action was sustained against a husband and wife, brought by a creditor of the husband to recover a judgment for the amount of the demand against him, and to charge certain land held by the wife under an implied trust for her husband, with a mechanic's lien which accompanied the demand ; ^ and also an action against a husband and wife, which was brought to obtain a judgment against him for the price of goods sold and delivered, and also to set aside his deed of land fraudulently conveyed to her, so as to let in the lien of the judgment when recovered.^ § 486. The questions under consideration, in their application to equitable actions were thoroughly and ably discussed by the Supreme Court of California in the case of Wilson v. Castro,* and I shall close this subdivision with an extract from the opinion. After a statement of the general rules and doctrines of equity in relation to parties, the learned judge proceeds to discuss the question as to the joinder of causes of action in connection with the union of the defendants, or, to adopt the nomenclature used by equity courts, the subject of " multifariousness.''' " A bill in equity 1, Fcrrin v. Myrick, 41 N. Y. 3] 5, 319- company for the same demand, both being 322, per Hunt C. J. ; Austin v. Munro, 47 based upon a statute. Wiles v. Suydam, N. Y. 360, 364, 365, per Allen J. ; Austin 6 N. Y. S. C. 292, citing Durant v. Gard- V. Munro, 4 Lans. 67. See, per contra, ner, 10 Abb. Pr. 445 ; 19 How. Pr. 94 ; Tradesman's Bank «. McFeely, 61 Barb. Sipperly v. Troy & B. R. R., 9 How. Pr. 522, decided in the face of Ferrin v. My- 83 ; Dickens v. N. Y. Cent. R. R., 13 How. rick. But a claim against the defendant Pr. 228. as a stockholder, to recover a demand due = Lindley v. Cross, 31 Ind. 106. from the corporation, may be joined with « Frank v. Kessler, 30 Ind. 8. a claim against him as a trustee of the * Wilson v. Castro, 31 Cal. 420. JOINDEE OF CAUSES OF ACTION. 527 is said to be ' multifarious ' when distinct and independent mat- ters are joined therein, — as, for example, the uniting of several matters, perfectly distinct and unconnected, against one defend- ant, or the demand of several matters of a distinct and independ- ent nature, against several defendants. But the case of each particular defendant must be entirely distinct and independent from that of the other defendants, or the objection cannot pre- vail ; for, as said by Judge Storj', ' The case of one may be so entire as to be incapable of being prosecuted in several suits, and yet some other defendant may be a necessary party to some por- tion only of the case stated. In the latter case the objection of multifariousness could not be allowed to prevail. So it is not indispensable that all the parties should have an interest in all the matters contained in the suit ; it will be sufficient if each party has an interest in some matter in the suit, and they are connected with tlie others.' ^ The same author lays it down that ' To support the objection of multifariousness because the bill con- tains different causes of suit against the same person, two things must concur : first, the different grounds of suit must be wholly distinct ; secondly, each ground must be sufficient as stated to sustain a bill ; if the grounds be not entirely distinct and uncon- nected, if they arise out of one and the same transaction, or series of transactions forming one course of dealing, and all tending to one end, if one connected story can be told of the whole, the ob- jection does not apply.' ^ When the point in issue is a matter of common interest among all the parties to the suit, though the interests of the several defendants are otherwise unconnected, still they may be joined. In Salvidge v. Hyde,^ Sir John Leach V. C. said : ' If the objects of the suit are single, but it happens that different persons have separate interests in distinct questions which arise out of the single object, it necessarily happens that such different persons must be brought before the court in order that the suit may conclude the whole subject.' In Boyd v. Hoyt,* Mr. Chancellor Walworth laid down the same doctrine in sub- stantially the language used by Sir John Leach in Salvidge v. Hyde ; and Mr. Daniel, in his excellent work,^ says, in reference to the doctrine held in Salvidge v. Hyde, there is no doubt that 1 Story's Eq. PI. §§ 271, 271 a. * Boyd v. Hoyt, 5 Paige, 78. 2 Ibid. § 271 b. 6 1 Daniell's Ch. PI. p. 386. 3 Salvidge U.Hyde, 5 Madd.Ch.R. 138. 528 CIVIL REMEDIES. the learned judge stated the principle correctly, though in the application of it he went, in the opinion of Lord Eldon, too far.^ In Whaley v. Dawson,^ Lord Redesdale observed that in the English cases, when demurrers, because the plaintiff demanded in his bill matters of distinct natures against several defendants not connected in interest, have been overruled, there has been a general right in the plaintiff covering the whole case, although the rights of the defendants may have been distinct. In such cases the court proceeds on the ground of preventing multipHcity of suits, when one general right is claimed by the plaintiff against all the defendants ; and so in Dimmock v. Bixby,^ the court held that when one general right is claimed by the plaintiff, although the defendants may have separate and distinct rights, the bill of complaint is not multifarious. In the elaborate case of Campbell V. Mackay,* Lord Cottenham held that when the plaintiffs have a common interest against all the defendants in a suit, as to one or more of the questions raised by it, so as to make them all neces- sarj' parties for the purpose of enforcing tha!t common interest, the circumstance of the defendants being subject to distinct lia- bilities in respect to different branches of the subject-matter will not render the bill multifarious. In the same case his lordship observed that it was utterly impossible upon the authorities to lay down any rule or abstract proposition as to what constitutes multifariousness which can be made universally applicable. The on]}'^ way, he said, of reconciling the authorities upon the subject, is by adverting to the fact, that although the books speak gen- erally of demurrers for multifariousness, yet in truth such de- murrers may be divided into two kinds, one of which, properly speaking, is on account of a misjoinder of causes of action ; that is to saj'-, uniting claims of so different a character that the court will not permit them to be litigated in one record, even though the plaintiff and defendants may be parties to the whole transac- tions which form the subject of the suit. The other of which, as applied to a bill, is that a party is brought as a defendant upon a record, with a large portion of which, and with the case made by it, he has no connection whatever. A demurrer for such a cause is an objection that the complaint sets forth matters which 1 1 Jac. R. 151. 8 Dimmock v. Bixby, 20 Pick. 368. 2 Whaley v. Dawson, 2 Sch. & Lef. * Campbell v. Mackay, 1 Myl. & Cr. 370. 608. JOINDER OF CAUSES OF ACTION. 529 are multifarious ; and the real cause of objection is, as illustrated by the old form of demurrer, that it puts the parties to great and useless expense, — an objection which has no application in a case of mere misjoinder of parties. Upon this subject Judge Story says : ' In the former class of cases, where there is a joinder of distinct claims between the same parties, it has never been held as a distinct proposition that they cannot be united, and that the bill is of course demurrable for that cause alone, not- withstanding the claims are of a similar nature, involving similar principles and results, and may therefore without inconvenience be heard and adjudged together. If that proposition were to be established and carried to its full extent, it would go to prevent the uniting of several demands in one bill, although the parties were liable in respect to each, and the same parties were inter- ested in the property which may be the subject of each. Such a rule, if established in equity, would be very mischievous and op- pressive in practice, and no possible advantage could be gained by it.' ^ He states in conclusion the result of the principles of the cases to be,^ ' That where there is a common liability in the de- fendants, and a common interest in the plaintiffs, different claims to property, as least if the subjects are such as ma'y without in- convenience be joined, may be united in one and the same suit ; and further, that where the interests of the plaintiffs are the same, although the defendants may not have a co-extensive com- mon interest, but their interests may be derived under different instruments, if the general objects of the bill will be promoted by their being united in a single suit, the court will not hesitate to sustain the bill against all of them.' "^ § 487. The observations of Mr. Calvert upon the distinction between "subject" and "object" of "the action, and upon the sense in which the former term is used in the common method of stating the general rules of equity procedure, are so valuable and instructive, that I shall quote them, with some condensation. They apply as well to the doctrine of parties heretofore dis- cussed as to the particular language of the codes under con- sideration in the present section. After laying down the equity rule as to parties in the customary form adopted by several emi- nent judges, in which the necessity or propriety of their being 1 Story's Eq. PI. §§ 531, 632. ' Wilson v. Castro, 31 Cal. 420, 426- 2 Ibid. §§ 533, 534. 431, per Currey J. 34 530 CIVIL EEMEDIES. joined is made to depend upon their interest in the " subject " of the suit,^ he proceeds : ^ " The expression ' subject of suit ' maj' mean one of two things, — either the fund or estate respecting which the question at issue has arisen, or else that question itself. For instance, in a foreclosure suit it may mean either, in the first sense, the mortgage debt or mortgaged premises, or, in the second sense, the question whether a foreclosure ought or ought not to take place." He goes on to show by citations from their judg- ments that in the cases quoted below. Lord Eldon and Sir Wil- liam Grant used the phrase in the first sense, and adds : " If the words ' subject of suit ' were taken in that very extensive mean- ing in which Lord Eldon and Sir William Grant used them, the general rule as laid down by them would be inconsistent with several distinctions which are firmly established." This state- ment he illustrates by a reference to many instances in which it is well settled that persons who are directly interested in the property, fund, or estate affected by the action, need not be made parties, — as for example in an action by or against trustees, the cestuis que trustent are under some circumstances neither neces- sary nor proper parties.^ § 488. Upoh these premises Mr. Calvert proceeds to develop his own views as follows : " The rule, then, which has been stated in these cases in reference to the ' subject of the suit,' meaning thereby the estate or fund on which the question at issue has arisen, does not appear to be adapted to general application. It must be taken in connection with other authorities which will now be quoted." The authorities then cited by him, while using the same phrase, "subject of the suit," make the necessity of a person's being joined as a party to depend upon' his interest in the questions involved in the litigation, and the effect which the decree will have upon that interest. This doctrine was tersely expressed by Lord Lyndhurst : " The general rule is, that all persons who are inter- ested in the question must be parties to a suit instituted in a court of equity." * He thus sums up the matter : " Not all con- 1 See Lord Eedesdale, Plead. 164, 170 ; 2 Calvert on Parties, p. 5. Lord Hardwicke in Pooru. Clarke, 2 Atk. ' Ibid. pp. 6, 7, 8. 615 ; Lord Thurlow in Anon., 1 Ves. 29 ; * Small v. Atwood, Younge, 458. The Sir William Grant in Palk v. Clinton, 12 other dicta cited by Mr. Calvert are Lord Ves. 58 ; Wilkins v. Fry, 1 Meriv. 262 ; Loughborough in King v. Martin, 2 Ves. Lord Eldon in Cockburn v. Thompson, 16 643 ; Lord Eldon in Fenton v. Hughes, 7 Ves. 325 ; Calvert on Parties, pp. 3, 4. Ves. 288; Sir T. Plumer in Whitworthw. JOINDER OF CAUSES OF ACTION. 531 cerned in the subject-matter respecting which a thing is demanded, but all concerned in the very thing which is demanded, the matter petitioned for in the prayer of the bill, in other words, the object of suit, should be made parties in equity. Upon a combination of all these authorities, it is proposed to state the general rule in the following words : All persons having an interest in the object of the suit ought to be made parties." ^ § 489. This theory is open to a very plain criticism. Assuming that " subject of the suit " may be used in the two senses men- tioned by Mr. Calvert, and conceding that the rule requiring all persons interested in the " subject," taken in the first of these senses, to be made parties, would not be universally correct, the natural conclusion would be that the phrase " subject of the suit," as found in the general rule, should be taken in its second sense. The author seems in his argument to reach this position ; but in the very act of arriving at this result he confounds this second sense of the expression with a very different thing, — the object of the suit. The " object of the suit " is, as he states it to be, the very relief prayed for by the bill, the remedy asked and granted ; but this relief or remedy is certainly not identical with the " sub- ject of the suit " used in its secondary meaning. . Taking his illustration of the foreclosure suit, the " subject " may be the mortgage debt or the mortgaged premises on the one hand, or the question whether a foreclosure ought or ought not to take place on the other. The latter is clearly not the same as the sale of the land and the payment of the debt out of the proceeds, which is the only object of the action. It would seem very clear then, by the author's own argument, that the final conclusion which he reaches is not derived from his premises nor established by his reasoning. The authorities agree, in one form of expression or another, that all persons materially interested in the " subject of the suit " should regularly be made parties. The " subject of the suit " may be the fund, estate, or property, in respect of which the action is maintained ; and it is true that, in a very large num- ber of instances, — in fact, in a very large majority of instances, — all the persons interested in this fund or estate should be parties in an equity suit. But the " subject of the suit " may be regarded Davis, 1 Ves, & B. 550 ; Sir John Leach in in Poore i'. Clarke, 2 Atk. 515 ; Com. Dig. Smitli V. Snow, 3 Madd. R. 10 ; Lloyd v. Tit. Chan., E. 2. Lander, 6 Madd. R. 289 ; Lord Hardwicke i Calvert, pp. 10, 11. 532 CIVIL REMEDIES. as describing the questions respecting this fund or estate which are involved in the litigation ; and if the rule as just stated is too broad to be of absolutely universal application, it is certainly- true that all persons materially interested in these questions ought to be joined as parties. § 490. Let us apply Mr. Calvert's analysis of the term to the language found in the codes. In equitable actions there is gen- erally, if not quite always, a fund, or estate, or property, which is the subject of the suit, as well as questions concerning the same to which the term may also be applied. The provisions of the codes, however, embrace legal actions ; and in them it cannot generally be said that there is any fund, property, or estate, in re- lation to which the questions at issue have arisen, and which can be regarded as the " subject." In a very large proportion of legal actions, therefore, the term " subject of the action " can only be conceived of in the second sense which has been attributed to it, and denotes the totality of questions at issue between the par- ties, embracing, in short, both the primary rights and duties of the litigants, and the remedial rights and duties which have sprung from the injuries complained of. The term does not seem capa- ble of any clear and complete analysis, and the result is that it may denote the "thing," if any, — land, chattel, person, fund, estate, and the like, — in respect of which rights are sought to be maintained and duties enforced, or it may denote the sum of the questions between the parties to be determined by the judgment of the court. The latter meaning is distinguishable and is to be distinguished from the "object of the action," which is always the relief to be obtained by the determination of the questions which constitute the " subject of the action." VI. Instances in which all the Causes of Action are against a single defendant, or against all the defendants alike. § 491. In the cases included in this subdivision, no question can arise respecting the proper joinder of defendants. The only matter of inquiry is, whether all the causes of action fall within some one of the classes enumerated in the statute, so that they may be united in one judicial proceeding. As the first and most general of these classes has already been fully considered in another subdivision, it will not be again referred to. No general JOINDER OF CAUSES OF ACTION. 533 principle is involved -which needs illustration and explanation ; and I shall simply state, first, a number of cases as examples of a proper joinder, and, secondly, a number of instances in which the joinder has been held to be improper. § 492. All causes of action arising out of contract may be united, and this includes, of course, implied as well as express con- tracts. A complaint contained four causes of action. The first alleged that the father of the defendant, being indebted to the plaintiff, devised and bequeathed all of his property, real and per- sonal, to the defendant, and in his will declared that " the said [defendant] is to pay all the debts that I may owe at my decease," "and also f35 annually during her lifetime to" the plaintiff; that the defendant accepted such gifts and took possession of the property, and thus became liable to pay such debts and said an- nuity. The second count was for money had and received, the third on an express promise to pay money, and the fourth for rent due. Upon demurrer to this complaint, the defendant's liability in respect to the matters alleged in the first count was held to be, in contemplation of law, on an implied promise, and all the causes of action thus arising out of contract were properly united.^ § 498. In certain cases the plaintiff is allowed an election to treat the wrong done as a tort, or to waive the tort, and sue as upon an implied promise of the defendant. When this is permit- ted, a cause of action of such a nature in which the tort has been waived and the claim placed upon the footing of an implied prom- ise may be joined with causes of action arising out of any other form of contract, express or implied ; as, for example, where the first cause of action was for goods sold and delivered, and the second averred that the defendant had wrongfully taken the goods of the plaintiff, had sold them and received their price, and de- manded judgment for this sum so retained by him.^ It has been recently held by the Supreme Court in New York, that where the plaintiff seeks to unite a cause of action merely upon contract with another cause of action originally for a tort, but in which the tort may be waived and the liability treated as springing from an im- plied promise, the pleading must show in some direct manner that 1 Gridley v. Gridley, 24 N. Y. 130. 2 Hawk v. Thome, 54 Barb. 164; See also Quellen v. Arnold, 12 Nev. 234 ; Leach v. Leach, 2 N. Y. S. C. 657. See Sullivan v. The Sullivan Co., 14 S. C. also Freer v. Denton, 61 N. Y. 492 i Logan 494 ; South Side Ass'n v. Cutler, &c. Co., v. Wallis, 76 N. C. 416. 64 Ind. 560. 534 CIVIL REMEDIES. the tort is waived, and that the claim is upon a promise ; and to this end the plaintiff must not only allege the facts as they occurred, but must aver a promise to have been made by the defendant, in the same manner as an action of assumpsit was distinguished under the former system.^ A complaint contained three counts. The first alleged a sale by the defendants of cer- tain county warrants drawn in their favor as payees, and facts constituting an implied promise or guaranty that these instru- ments were legal and genuine, but that they were not genuine, and had been adjudged invalid as against the county in an action brought upon them ; the second sought to charge the defendants as indorsers, treating the instruments as negotiable notes ; the third was for money had and received. These causes of action were held to be properly united, since they all arose out of contract.^ § 494. A claim to recover possession of land, a claim to recover damages for its detention or wrongful taking, and a claim for the rents and profits thereof during the defendant's occupancy, may all or any of them be united in one action : ^ but the plaintiff is not compelled to do so; he may sue separately on each.* An action to compel the specific performance of a contract to convey land is, within the meaning of the statute, an action to recover possession of lands, and may be united with a cause of action for damages on account of defendant's delay in performing the contract.^ In like mannei-, a claim to recover possession of chattels may be united with a claim for damages for their taking or detention.® ' Booth V. Farmers' and Mech. Bank, son, 57 N. Y. 151. It has been held that 1 N. Y. S. C. 45. a claim to recover possession of one par- 2 Keller v. Hicks, 22 Cal. 457. eel of land cannot be joined with a Similar a Vandevoort v. Gould, 3fi N. Y. 639, claim in respect to another and distinct 645 ; Livingston v. Tanner, 12 Barb. 481 ; parcel. Holmes v. Williams, 16 Minn. Holmes v. Davis, 21 Barb. 265 ; 19 N. Y. 164, 169. See also Merrill v. Deering, 22 488 ; Tompkins v. White, 8 How. Pr. 520 ; Minn. 376 ; Lord v. Deering, 24 id. IJO ; Armstrong v. Hinds, 8 Minn. 254, 256 ; Hackett v. Carter, 38 Wis. 394 ; "Spahr v. Walker u. Mitchell, 18 B. Mon. 541 ; Burr Nicklaus, 51 Ind. 221; Boltorf v. Wise, V. Woodrow, 1 Bush (Ky.), 602 ;'^ulUvan 53 id. 32. V. Davis, 4 Cal. 291. A claim to recover * Ibid. land, with damages for withholding the 5 Worrall v. Munn, 38 N. Y. 137. A same, and a claim of the rents and profits demand for a specific performance against for its use, are distinct causes of action, A. cannot be united with a demand to and evidence to prove the latter is inad- recover possession against B. Fagan v. missible under a complaint which does Barnes, 14 Fla. 53, 56. not contain such cause of action, but sim- 6 pharis v. Carver, 13 B. Mon. 236. ply alleges the former. Lamed v. Hud- JOINDER OF CAUSES OF ACTION. 535 § 495. Causes of action for injuries to property form a distinct class, and the generality of this language permits the union of claims arising from injuries of all kinds, whether with or without force, whether direct or consequential, and whether to real or to personal property. Singularly enough, injuries to the person are placed in the same group in most of the States, rather than in a class by themselves, or with injuries to character. The following are examples of causes of action arising from injuries to property which have been held properly united in a single suit : in an ac- tion against a railroad company (1) for damages resulting from the unlawful throwing down the fences on plaintiff's farm, whereby cattle entered and destroyed the growing crops ; (2) for damages caused by water thrown on to the farm by means of an embank- ment ; (3) for damages from earth piled upon the farm, obstructing the passage of teams and the free use of the land ; (4) for damages occasioned by the killiiig of cattle by means of passing engines ; ^ an action by a mine-owner, alleging (1) injuries caused by the bursting of defendant's dam, negligently constructed, whereby gold-bearing earth was washed away and (2) damages resulting from the delay and hindrance in working the mine ; ^ where the complaint contained two counts, the first being for trespasses done to the land prior to its conveyance to the plaintiff, the claim having been assigned to him, and the second alleged that the plaintiff was owner and in possession of the land, that the defend- ants were about to enter upon the same and quarry and carry away minerals therefrom, and prayed an injunction restraining the trespasses, the two causes of action were held to be properly joined, although one was legal and the other equitable.^ On the same principle, in a suit to recover possession of land, a separate cause of action may be added to restrain a threatened trespass and commission of waste.* A cause of action for deceit practised in the sale of chattels may be joined with one for the unlawful taking and conversion of other goods'; the claim of damages for the fraud in such a case arises from an "injury to property" within the meaning of the codes.^ 1 Clark'sAdm'ru. Han.&St.Jo. K.R., per Shapter J. The opinion in this case 36 Mo. 202 ; and see Tendesen i;.^ Mar- is instructive, shall, 3 Cal. 440. * Natoma Water Co. v. Clarkin, 14 3 Fraler v. Sears Union Water Co., 12 Cal. 544. Cal. 555. ^ Cleveland v. Barrows, 59 Barb. 364, 3 More u. Massini, 32 Cal. 590, 595, 374, 375, per T. A. Johnson J. 53^ CIVIL EEMEDIES. § 496. Within the class of " injuries to character " fall not only actions for libel and for slander, but those for malicious prosecu- tion ; the gist of the latter, according to the old authorities, being the wrong done to the plaintiff's reputation. A cause of action for malicious prosecution may therefore be joined with one for libel or slander, or both.i § 497. The following are some special cases. In Wisconsin a complaint was sustained in an action by a creditor, one count of which set up a cause of action against a bank to recover certain propertj'- or its value, and another count alleged a cause of action against delinquent stockholders of the corporation.^ Where a complaint contained two causes of action, the first to enforce an implied trust alleged to have arisen in favor of the plaintiff on the conveyance of lands from himself to the defendant, and the second to enforce a vendor's lien on the same lands, they were held to be properly united, since both arose out of trusts, the one by virtue of a contract, and the other by operation of law.^ In another equitable suit the joinder of four causes of action was sustained, where the first was to reform a certain trust deed by inserting the name of a trustee, and to foreclose it when reformed, the second was to foreclose a mortgage upon the same land, while the third and fourth were to enforce certain charges which were liens on the land, and which the plaintiff had been compelled to pay in order to protect his security.* § 498. All of the foregoing cases were decided under State codes ■which contain substantially the same provisions and the same division into classes. In Indiana and Iowa, it will be remem- bered, the corresponding sections of the statute are peculiar, and more latitude is permitted, especially in the latter State, in the joinder of unlike causes of action. As in Iowa, all legal or equitable causes of action may be united, a claim arising upon contract may be included in the same petition with one for dam- ages resulting from any kind of tort.^ And where twenty-two 1 Martin v. Mattison, 8 Abb. Pr. 3 ; a form of security used in several of the Hull V. Vreeland, 18 Abb. Pr. 182 ; Wat- States instead of a mortgage. See also son V. Hazzard, 3 Code Eep. 218 ; Shore Williams v. Peabody, 8 Hun, 271 ; Hay V. Smith, 15 Ohio St. 173. u. Hay, 13 Id. 315. 2 Seaman v. Goodnow, 20 Wis. 27, « Turner v. First National Bank, 26 sed qu. Iowa, 562. See also Mendenhall v. Wil- 8 Burt V. Wilson, 28 Cal. 632. eon, 54 Iowa, 689 (trespass and contract) ; * Burnside v. Wayman, 49 Mo. 856. Thorpe v. Dickey, 51 id. 676 ; Stevens v. The " trust deed " mentioned was, in fact, Chance, 47 id. 602. JOINDEE OF CAUSES OF ACTION. 537 different parcels of land belonging to the same owners had been conveyed to the plaintiff by as many separate tax deeds, he was permitted to foreclose all these deeds, and thus cut off the owner's right of redemption in one action.^ In construing the sections of the Iowa code which give the trial court a discretion in reference to the joinder of unlike causes of action, and which authorize it to compel an election, or to strike out on the defendant's motion, it is held that the provision for compelling the plaintiff to elect ap- plies only to a case where the various causes of action set forth in the petition are merely different modes of stating one and the same demand, and the defendant must file an affidavit showing this fact as the basis of his motion ; but the court may, on defend- ant's motion, strike out a cause of action which it deems impos- sible or inconvenient to try with the others, but in no case is a demurrer the proper remedy.^ § 499. In Indiana, a cause of action by a wife for an absolute divorce was held properly joined with a cause of action to compel the specific performance of an agreement to convey certain lands to her made by the husband at the time of their separation.^ In California, by virtue of the provisions of a special statute, a cause of action against a sheriff to recover damages for his neglect to execute and return process may be joined with a claim to re- cover a statutory penalty for the failure in his ofiicial duty.* § 500. I shall conclude this section with a classified series of decisions which will illustrate the improper union of different causes of action. Except in Iowa, the rule is universal that a cause of action upon contract cannot be joined with one to recover damages for a tort, unless both should arise out of the same transaction, and' thus fall within the inclusive terms of the first class. The following are examples merely of this ele- mentary rule : A count against the defendant for his wrongful acts 1 Byington v. Woods, 13 Iowa, 17, 19. having been made to strike out, the ir- See, per contra, Turner v. Duchman, 17 regularity was thereby waived. Grant w. Wis. 500. McCarty, 38 Iowa, 468 ; an action by two 2 Eeed v. Howe, 28 Iowa, 250, 252 ; persons not partners for a slander of each, Iowa, &c. R. R. I'. Perlcins, 28 Iowa, 281. but on the trial the case was severed, and In the following cases, the causes of the trial proceeded on behalf of one alone, action were held to have been improperly and this was held proper. Hinkle v. joined : an action by two plaintiffs for the Davenport, 38 Iowa, 355. destruction of chattels owned by them ^ Fritz v. Fritz, 23 Ind. 388. jointly, and also for an assault and battery * Fearkes v. Freer, 9 Gal. 642. committed upon each; but, no motioa 538 CIVIL REMEDIES. as president of a bank, and one against him as a stockholder in such bank to recover on its notes, were improperly embraced in the same complaint ; ^ also a claim against certain part owners of a vessel to recover her hire, which they had received, and one to restrain th'em from a threatened wrongful sale of the ship.^ It has been held that a demand arising from the breach of a war- ranty given upon the sale of chattels cannot be joined with one based upon the vendor's deceit practised in the same sale.^ Not- withstanding these decisions, it is impossible to conceive of two legal causes of action which more completely and accurately cor- respond to the language of the codes, as " arising out of the same transaction." The bargain between the parties is certainly a transaction ; certain language used by the seller may amount to a contract of warranty ; certain other language may be the false representations ; indeed, it is possible, and not at all unlikely, that the selfsame words spoken by the vendor might be at once the fraudulent representations and the promise, for language otherwise sufficient is none the less a promise because the person using it knowingly lied when he uttered it. To say that these two demands do not arise out of the same transaction is virtually to say that no two different legal claims ever can so arise. I can not regard these decisions, therefore, otherwise than mistaken. § 501. In an action against a railroad company, the complaint contained three counts ; the first for wrongfully carrying away and converting cattle ; the second for the same injury done to hogs ; and the third set up an agreement to transport cattle from a spe- cified place to another, and averred a breach thereof by means of a negligent omission whereby the plaintiff lost his cattle. On demurrer, it was said that the first two causes of action, being for torts, could be joined ; but the third was upon contract, and its union with the others was error.* The joinder of a count for the conversion of chattels with one for money had and received would be clearly wrong ; ^ and the same is true of any tort and 1 Butt V. Cameron, 53 Barb. 642 ; but v. Atlantic R. R., 78 id. 22 ; Keller v. see Wiles v. Suydam, 6 N. Y. S. C. 292. Boatman, 49 Ind. 104. 2 Coster V. N. Y. & E. R. R., 3 Abb. * Colwell v. N. Y. & E. R. R., 9 How. Pr. 332. Pr. 311 ; Hoagland v. Han. & St. Jo. R. R., 2 Springsteed v. Lawson, 14 Abb. Pr. 39 Mo. 451. 328 ; Sweet v. Ingerson, 12 How. Pr. 331. 5 Cobb v. Dows, 9 Barb. 230, and cases See Gertler ». Linscott, 26 Minn. 82; in last note. Logan V. Wallis, 76 N. C. 416; Doughty JOINDEE OF CAUSES OF ACTION. 539 implied contract.^ It is doubtfal whether a cause of action on contract and one for a tort to the person can be conceived of as arising out of the same transaction, so that they may be embraced in the same pleading. The attempt, however, has been made to unite a claim for the. breach of a written contract to convey land with a cause of action for assault and battery committed by the defendant in forcibly taking the instrument from the plaintiff's possession, but it was unsuccessful.^ In like manner a cause of action against a lessee arising upon the lease cannot be joined with a claim for damages on account of injuries done to the property, unless, of course, the latter is embraced within some stipulation or covenant of the lease, so that it would in fact be a demand on the contract." It can make no difference with the rule that the tort is a fraud consisting in false statements or con- cealments. Thus, a complaint by an indorsee against his imme- diate indotser was held bad on demurrer, one count of which alleged the ordinary liability of defendant as indorser, and the other set up certain false representations as to the solvency of the maker, by which the plaintiff was induced to purchase the paper.* The rule, in short, applies to all cases of demands based upon a promise, express or implied, and claims based upon fraud, unless the tort may be waived, and the complaint be framed so as to present both causes of action as arising from contract.* § 502. Another particular rule, which is but an application of the same doctrine, requires that the several causes of action against or for a given person should all affect him in the same capacity. In other words a demand for or against a party in his personal character cannot be united with another demand for or against him in a representative character as trustee, executor, administrator, receiver, and the like. The reason usually given for this rule when applied to defendants is, that the judgment upon one cause of action would be against the defendant per- sonally, to be made de bonis propriis, while the judgment upon 1 Hunter y. Powell, 15 How. Pr. 221. property thereon, cannot be joined. Keep 2 Ehle V. Haller, 6 Bosw. 661. v. Kaufman, 56 N. Y. 332. 8 Ederlin v. Judge, 36 Mo. 350. Con- * Jamison i-. Gopher, 35 Mo. 483. versely, a claim of damages for the breach ' Forkner v. Hart, Stanton's Code of the lessor's covenant of quiet enjoy- (Ky.) 60; Wilson v. Thompson, Ibid. 60; ment, and a claim of damages for a tres- Hubbell v. Meigs, 50 N. Y. 480, 487 ; pass in his wrongful entering upon the Booth v. Farmers' and Mechanics' Bank, demised premises and injuring the lessee's 1 N. Y. S. C. 45. 540 CIVIL EEMEDIES. the other cause of action would be against him in his representa- tive or official capacitj-, and not perhaps to be made out of his own property ; as, for example, it might be made de bonis testatoris. This reasoning, borrowed from the old law, is a mere formula of words, for there is nothing in the nature of things which prevents such a double judgment. It is just as easy for such a judgment to be rendered in one action as it is for two distinct judgments to be granted in separate suits. The argument, however, like so much of so-called legal reasoning, still has convincing force with most of the courts, even while administering the reformed system. The following cases are given as illustrations of this doctrine, and in all of them the joinder was pronounced improper: A com- plaint on a partnership debt against the defendant as surviving partner, and against him in a separate count as executor of his deceased partner ; ^ against the defendant personall}^, and also as an executor or administrator ; ^ in a suit against an executor or administrator, a demand which existed against the deceased in his lifetime, and a different demand which arose from a promise made by the executor or administrator after the death, for as to the latter claim the defendant is personally liable.^ On the same principle a demand upon a contract between the plaintiff and the defendant,' and a claim by the plaintiff as a shareholder in an unincorporated company against the defendant as president thereof, in respect of matters connected with the management of its affairs, were held to be improperly joined, since the defend- ant's liability, if any, in the latter cause of action existed against him as a trustee.* The plaintiff must also sue in the same capa- city in respect of all the causes of action. He cannot in one count sue as an executor or administrator, and in another sue in his personal character.^ In an action for malicious prosecution the complaint contained three counts : the first for the malicious prosecution of the plaintiff himself; the second for the same wrong done to his wife, she having been imprisoned ; and the 1 Landau u. Levy, 1 Abb. Pr. 376. See, however, Logan i.. Wallis, 76 N. C. 2 McMahon v. Allen, 3 Abb. Pr. 89. 416. 3 Ferrin v. Myrick, 41 N. Y. 315, 322 ; 6 Lucas v. N. Y. Cent. R. R., 21 Barb. Austin V. Munro, 47 N. Y. 360, 364 ; s. c. 245. But see Armstrong v. Hall, 17 How. 4 Lans. 67. See, however, Tradesman's Pr. 76, per C. L. Allen J., at Special Bank v. McFeely, 61 Barb. 522, which Term, — a decision in direct opposition cannot be regarded as correct in the light to tlie rule stated in the text. See also of these other decisions. Quellen v. Arnold, 12 Nev. 234 ; Cincin- 4 Warth u. Radde, 18 Abb. Pr. 396. nati, &c..R. B. v. Chester, 57 Ind. 297. JOINDEE OF CAUSES OF ACTION. 541 third for a like tort to his minor children. The only legal ground for recovery on the second and third of these counts was declared to be the loss of the wife's society in the one case, and of the children's services in the other ; as these injuries were personal to the plaintiff, they could be joined with the cause of action alleged in the first count for the tort directly to himself.^ § 503. The cases which follow do not admit of any classifica- tion, and several of them are of doubtful authority, even if not palpably erroneous. A cause of action for a limited divorce on the ground of cruelty, desertion, and the like, cannot be united with one for an absolute divorce on account of adultery, or of any other matter prescribed by statute. The two demands are simply incompatible.^ It was decided by one judge in New York that a demand to recover possession of a chattel cannot be united with a claim of damages for the taking, detaining, and converting the same. But as the codes expressly authorize the joinder of claims for the possession of chattels, and of damages for the withholding the same, this decision can hardly be sustained. " Withholding " clearly includes "detaining," and as it is not a technical term, it was doubtless intended to embrace " taking " and " conversion " as well.^ A cause of action to recover the possession of a certain parcel of land cannot, it has been said, be united with a demand^ of damages caused by the defendant's trespasses upon other lands of the plaintiff.* It has also been held that a claim to recover possession of land, and a demand of damages for the defendant's tortious entry upon the same land, cannot be joined, because they are entirely inconsistent.^ 1 Rogers v. Smith, 17 Ind. 323. 6 Budd v. Bingham, 18 Barb. 494, per 2 Henry v. Henry, 17 Abb. Pr. 411 ; Brown J. It is difficult to perceive this Mcintosh I;. Mclntosli, 12 How. Pr. 289. inconsistency. This and some similar de- It would be difficult to determine in what cisions are cited, not because they have class the action for either kind of divorce any authority or any value, but to com- falls. One judge in the last case sug- plete the statement of the judicial inter- gested that limited divorce was a claim pretation put upon this provision of the for injury to the person. It seems to be statute. For further illustrations see casxis omissus. See also Haskell v. Has- Buckmaster v. Kelley, 15 Tla. 180 ; Mat- kell, 54 Cal. 262 ; Uhl u. Uhl, 52 id. 250. tair v. Payne, 15 id. 682; Williams v. 3 Maxwell v. Farnam, 7 How. Pr. 236, Lowe, 4 Neb. 382 ; Paxton v. Wood, 77 per Harris J., at Special Term. N. C. 11 ; Seeber v. Allen, 13 S. C. 317; * Hulce V. Thompson, 9 How. Pr. 113 ; Stevens v. Chance, 47 Iowa, 602 ; Schmil- But cannot both causes of action be re- zer v. Cohen, 7 Hun, 665 ; French o. ferred to the single class of "injuries to Salter, 17 id. 546; Dyer v. Barstow, 6 property " ? The recovery of possession Cal. 652 ; Brown v. Eice, 51 id. 89. is merely the relief, and not the cause of action. 542 CIVIL EEMEDIES. § 504. In one or two of the States, actions for injuries to the person constitute a separate class, and are not grouped together with those for injuries to property. Thus in California, an " ac- tion to recover damages for alleged injuries to the person and property of the plaintiff, and for his false imprisonment, and for forcibly ejecting him from a house and lot in his possession, and detaining the possession thereof from him," was held to be an improper union, as it embraced causes belonging to two if not three of the classes specified in the code ; ^ and in another case, the joining of a claim to recover possession of land, damages for its detention, damages for the forcible expulsion of the plaintiff from the premises, and the value of the improvements made by him, was pronounced equally an error for the same reason.^ § 505. An action to quiet the title to three different tracts of land which had belonged originally to different owners, and which the plaintiff held under three distinct tax deeds executed at separate times, was held in Wisconsin to violate the require- ments of the code. The proceeding was likened by the court to the foreclosure in one action of three different mortgages given by three different owners upon three separate parcels of land.^ SECTION THIRD. THE GENERAL PRINCIPLES OF PLEADING. § 506. In order that the system of pleading introduced by the reformed procedure may be accurately understood, I shall briefly describe the essential principles and doctrines of those which pre- vailed in different courts at the time of its adoption, and the comparison which can thus be made will be of great assistance in arriving at correct results. The three types of pleading then known either in England or in this country were the common law, the equity, and that which in the absence of a distinctive name I shall call " pleading by allegation." The last-mentioned method was used in the courts of admiralty, of probate and divorce, the ecclesiastical courts, and wherever the law as ad- ministered was based directly upon the doctrines and modes of 1 McCarty v. Fremont, 23 Cal. 196, Bowles v. Sacramento Tump. Co., 5 Cal. 197. 224 ; Bigelow v. Gove, 7 Cal. 133. 2 Mayo V. Madden, i Cal. 27. And see » Turner i'. Duchman, 23 Wis. 500. PEINCIPLES OF EQUITY PLEADING. 543 the Roman Civil Law. Its peculiar features consisted (1) in breaking up an entire pleading into a number of separate para- graphs, — technically " allegations," — each of which should prop- erly contain a single important circumstance or principal fact going to make out the cause of action ; and (2) the statement in each allegation of all the minute and subordinate facts which taken together compose, and are evidence of, the main circum- stance or fact relied upon by the litigant party to sustain his con- tention. The pleading as a whole, therefore, comprised not only averments of the substantial facts, the important conclusions of fact which must be established by the proofs, — those facts which in the common-law system are called "issuable" or "material," — but also a narrative of all tiie probative facts, of all the evi- dence from which the existence of the " issuable " facts must be inferred. A libel constructed upon this theory disclosed the whole case of the complaining party ; if properly framed, it set forth in a continuous and narrative form a complete account of the transaction, describing the situation of the parties at its com- mencement, all the various incidents which happened in its pro- gress, its final conclusion, and the results produced upon each, and prayed for such relief as the law affords in the given case. The codes of several States have plainly intended to borrow one feature of this system ; that is, the separation of the pleading into a number of distinct paragraphs continuously numbered, and each comprising the statement of a single material or issu- able fact. The second feature, namely, the narrative of proba- tive facts and circumstances in the manner above described, violates the fundamental and essential principle of the reformed procedure. § 607. The equity method of pleading, when freed from all the superfluous additions which had become incorporated with it in practice, and when thus reduced to its mere essential elements, consisted in a statement of all the facts indicating the relief to Avhich the complainant is entitled, and in this original aspect it did not differ in principle from that prescribed by the codes. I purposely make use of the expression " facts indicating the relief to which the complainant is entitled," rather than the ordinary phrase " facts constituting the complainant's cause of action," for a reason which will be fully explained in the sequel. I now call attention to the form of expression, for it is important, and will 544 CIVIL REMEDIES. assist in removing certain difficulties which have been suggested by some of the judges in their exposition of the codes. Prac- tically, a bill in equity, prior to any modern reforms, had been changed from the original simplicity as above described, and had come to consist of three distinct parts or divisions, the narrative, the charging, and the interrogative. The first of these contained a statement of the complainant's case for relief; the second antici- pated and rebutted the defendant's supposed positions ; while the last was used to probe the defendant's conscience, and to extract from him admissions under oath in his answer concerning matters witliin his own knowledge which the existing rules of evidence did not permit to be proved by the parties themselves as ordinary witnesses. The result of these modifications was an almost entire departure from the simple conception of equity pleading. The bill and answer were generally made to include the evidence by which either party maintained his own contention, or defeated that of his adversary, and also legal conclusions and arguments which more appropriately belonged to the briefs of counsel and the discussions at the hearing. All this, I say, although very common and perhaps universal in the actual practice before any reforms through legislation or rules of court, was really unneces- sary, and formed no essential part of the theory of equity plead- ing. The only indispensable portion of a bill was the narrative. Except for the purpose of eliciting evidence from the defendant, there was no more reason why this should contain mere evidence of the facts that were the foundation of the complainant's demand for relief, as contradistinguished from those facts themselves, than there was for the same kind of probative matter to be inserted in a declaration at law. The bill in equity, as has been already said, should comprise a statement of all the facts which show the relief to which the complainant is entitled, which indicate the nature and extent of that relief whether total or partial, and the modifications or exceptions to be made in it ; while the an- swer should perform the same office for the defendant. By the application of this doctrine, a bill in equity was generally quite different in its contents from a declaration at law ; it was ordi- narily more minute in its averments, and contained statements of matter which in a legal action would more naturally and properly belong to the evidence rather than to the allegations of issuable facts. The reason for this distinction lay entirely in the differ- PRINCIPLES OF EQUITY PLEADING. 545 ence between equitable and legal primary rights and between equitable and legal remedies, especially in the latter. A judg- ment at law was always a single award of relief ; the recovery either of a specific tract of land, or of a specific chattel, or of a definite sum of money, and such judgment, whatever might be its amount, was either wholly rendered for the plaintiff, or wholly denied. Furthermore, the right to recover a legal judgment always depended upon the existence of a comparatively few im- portant facts, — " issuable " or " material " facts, — and the very definition of an issuable fact is, one which, if denied and not proved, would prevent the plaintiff from recovering. In equity, the primary rights and remedies of the complainant were often very different from those which existed at law. His remedy was not necessarily a single recovery of some specific form of relief ; it might vary in its nature and extent through a wide range ; it might be total or partial, it might be absolute or conditional. The defence, on the other hand, might be total or partial ; and it might even consist of modifications made in the form of relief demanded b}' the complainant, or in supplemental provisions added thereto in order to meet some future contingency. In short, it was impossible to say that the complainant's right to recover always depended upon the existence of certain " issuable " facts, the failure to establish either one or even all of which would necessarily defeat his contention. It is true that in some cases the equitable remedy sought by the complainant might be of such a nature that it would follow from the proof of such issu- able facts as completely and directly as the plaintiff's right to a common-law judgment does in a legal action. While this was possible in some instances, in the great majority of equitable actions the relief was more complicated ; the primary -rights were more comprehensive ; and the decree as a whole was shaped, modified, and adapted to various circumstances and minor facts upon which individually the cause of action or the defence did not entirely rest, but all of which in combination entered into the resulting remedial right belonging to the litigant parties. Now, on the theory of equity pleading, all these facts should be averred by the complainant or the defendant as the case might be ; and while it can be properly said that they all indicate und affect the relief to be awarded by the court, tliey cannot all be said " to constitute the cause of action " or the defence in the 36 546 CIVIL EEMEDIES. same sense in which the " issuable " or " material " facts consti- tute the cause of action or the defence in a suit at law. I repeat the statement already made, for it is an important one, that this description does not necessarily apply to every case of equitable relief. Under certain circumstances, and in some particular in- stances, the remedy and the right to its recovery are single and depend upon the existence of a few well-deiined and controlling facts ; such facts are then " material " or " issuable " in the strictest sense of those terms, and they are all that it is requisite to allege in the pleading. In most instances, however, an equity pleading necessarily contained allegations of facts which were not " issuable " in the technical meaning of that word, but which were nevertheless the basis of the relief demanded and obtained. I have dwelt thus carefully upon the foregoing analysis, because it is the element which enters into and decides a most important question to be considered in the sequel ; namely, whether the proper modes of pleading in legal and in equitable actions under the reformed procedure can be referred to and derived from the single fundamental principle announced by all the codes. An- other essential feature belonged to the equity method of pleading, and distinguished it from that which prevailed in courts of law. The facts upon which the contentions of the litigant parties wholly or partially depended were averred as they actually happened or existed, and not the legal effect or aspect of those facts. This distinction was a vital one, as will be fully pointed out in the succeeding paragraphs, and its relations with the reformed theory of pleading are direct and intimate. § 508. I come finally to the common-law system of plead- ing. It has frequently been said, even by able judges, that under this method the material, issuable facts constituting the cause of action, and they alone, were to be alleged ; and that, as exactly the same principle lies at the basis of the new system, the latter has made no substantial change, but has only removed the un- necessary and troublesome incidents which had been gathered around the original simple common-law conception. In support of this view, the general language of Chitty and other text-writers is quoted as conclusive. There is just enough truth in this de- scription of the common-law pleading to make it plausible ; but enough of error to render it, when adopted as a means of inter- preting the codes, extremely misleading. In fact, it is impos- PKINCIPLES OF COMMON-LAW PLEADING. 547 sible to describe the common-law pleading as a unit : it was gov- erned by no universal principles ; the modes which prevailed in certain actions were radically unlike those that were employed in others. I shall attempt in a very brief manner to point out all its essential features, and to explain its general character. § 509. In the first place, certain elements were firmly incorpo- rated into the system which were not really fundamental and es- sential, although often regarded and spoken of as its peculiarly characteristic requisites. I refer to the extreme nicety, precision, and accuracy which were demanded by the courts in the framing of allegations, in averring either the facts from which the primary rights of the parties arose, or those which constituted the breach of such rights, in the use of technical phrases and formulas, in the certainty of statement produced by negativing almost all pos- sible conclusions different from that affirmed by the pleader, in the numerous repetitions of the same averment, and finally in the invention and employment of a language and mode of expres- sion utterly unlike the ordinary spoken or written English, and meaningless to any person but a trained expert. Tliis require- ment of accuracy and precision was in former times pushed to an absurd and most unjust extreme ; as for example, the use of the past tense "had," instead of the present "have," in a material allegation, would be fatal to the plaintiff's recovery. If it be said that these extreme niceties and absurd technicalities were things of the past, abandoned by the law courts in modern times, a perusal of some standard reports — for instance, those of Meeson and Welsby — will show on what grounds of the merest form the rights of litigant parties have been determined, even within the present generation. Still, I do not regard this precision, accuracy, and general technicality, which actually distinguished the common-law system of pleading, as something essential to its existence, as its absolutely necessary elements. It might have retained all its fundamental principles in respect to the nature of the allegations used and the kinds of facts averred, and at the same time have employed the familiar language of common narra- tive in making all these averments. The essential elements of the system would then be presented in their naked simplicity. The actual technicalities which have been thus mentioned, and which were the boast of the skilful special pleader, were only a disgrace to the administration of justice. However pleasant 548 CIVIL EEMEDIES. they might have been as exercises in logic, they were productive of untold injustice to suitors. It is simply amazing that they could have been retained so long and adhered to so tenaciously, and even lauded with extravagant eulogium, among peoples like the English and the American. That they were entirely abro- gated by all the codes of procedure is plain ; and after a series of improvements, commencing in 1834, when the celebrated " Rules of Hilary Term" were adopted, the British Parliament has swept them out of the English law, and has introduced the substance of the American system. § 510. Passing from these technical incidents, I proceed to in- quire what were the real and essential principles and elements of the common-law pleading. How far was it true that the material facts constituting the cause of action, and these alone, were to be alleged ? This statement was partly correct, — that is, correct under most important limitations and reservations, in certain of the forms of action ; while in the other of these forms of action it was not true in the slightest extent ; in fact, it was diametrically opposed to the truth. I will recapitulate the important actions, and refer them to their proper classes. In ejectment there can be no pretence that any attempt was made to allege the actual facts constituting the cause of action ; the declaration and accom- panying proceedings were a mass of fictions which had become ridiculous, whatever may have been their original usefulness, and the answer was the general issue ; the record thus threw no light upon the real issues to be tried by the jury. In trover, the aver- ments of the declaration were that the plaintiff was possessed, as his own property, of certain specified chattels ; that he lost them ; and that the defendant found them, and converted them to his own use. Throwing out of view the abused fictions of a loss and a finding, there was here the statement of two facts, namely, the description of the chattels so as to identify them, and the plain- tiff's property in them ; but the most important allegation of all, the one upon which in the vast majority of cases the whole con- troversy would turn, was a pure conclusion of law. The state- ment that defendant had converted the same to his own use did not indicate any fact to be considered and decided by the jur}- in reaching their verdict. In the action of debt, also, the important allegation was a mere conclusion of law, namely, that the defend- ant was indebted to the plaintiff in a certain sum whereupon an PKINCIPLES OF COMMON-LAW PLEADING. 549 action had accrued ; and although the declaration contained a further statement of the consideration or cause of the indebted- ness, 3'et as a whole it did not pretend to set forth the material facts constituting the cause of action. In assumpsit, the plead- ings were of two very different species, in all cases of implied promises, and especially when the common counts were resorted to, the averments were purely fictitious, as much so as in eject- ment ; there was not the slightest approach towards a statement of the facts constituting a cause of action as they actually ex- isted. When the suit was brought upon an express contract, and the declaration was in the form of a special assumpsit, there was a greater appearance of alleging facts ; but even here the facts were stated in their supposed legal aspect and effect, as legal con- clusions, and not simply as they occurred. There are left to be considered the actions of covenant, detinue, trespass, and case. In each one of these, according to the nature of the action, the facts constituting the grounds for a recovery were more nearly stated, although in some of them the averments were required to be made in an exceedingly precise and technical manner. The declaration in a special action on the case necessarily comprised a narrative of tlie actual facts constituting the cause of action ; but as has been said, this narrative was thrown into a very arbitrary, technical, and unnatural shape. It therefore bore some resem- blance in substance to a complaint or a petition, when properly framed according to the reformed theory ; and some judges have even said that every such complaint or petition is a declaration in a special action on the case. The assertion so often made by the older text-writers, and repeated by modern judges, that the com- mon-law system of pleading demanded allegations of the facts constituting the cause of action or the defence, is thus, as a general proposition, manifestly incorrect, for in many, forms of action there was no pretence of any such averments. § 511. But we must go a step farther in order to obtain an ac- curate notion of the common-law theory. In all the instances where fictions were discarded, and where the important allega- tions were not mere naked conclusions of law, but where, on the contrary, the plaintiff assumed to state the "issuable " facts con- stituting his cause of action, he did not narrate the exact transac- tion between himself and the defendant from which the rights and .duties of the respective parties arose ; he stated only what he con- 550 CIVIL REMEDIES. ceived to he the legal effect of these facts. The " issuable " facts, in the contemplation of the common-law system, were not the ac- tual controlling facts as they really occurred, and as they would be proved by the evidence, from which the law derived the right of recovery : they were the legal aspect of those facts, — not strictly the bare conclusions of law themselves derived from the circumstances of the case, but rather combinations of fact and law, or the facts with a legal coloring, and clothed with a legal character. The result was, that the " issuable " facts as averred in the pleading were often purely fictitious ; that is, no such events or occurrences as alleged ever took place, but they were represented as having taken place in the manner conceived of by the law. The pleader of course set forth his own view of this legal effect under the peril of a possible error in his application of the law to his case ; if a mistake was made in properly conceiving of this legal effect, — or, in other words, if the facts established by the evidence did not correspond with his opinion as to their legal aspect stated in the declaration, — the plaintiff's suit would entirely fail.^ 1 In corroboration of these conclusions, I quote a paragraph from a series of ex- ceedingly able articles upon the English Judicature Bill, which appeared in tlie " Saturday Review " during the year 1873, and were correctly attributed to one of the foremost English barristers as their author. While discussing the plead- ing which ought to be introduced, he de- scribes the common-law methods by way of contrast, and, among others, the fol- lowing as one of its features : " The first striking difference is this, that, on the common-law plan, a plaintiff is required to state, not the facts, but what he con- eiders to be the legal effect of the facts. If his advisers take a wrong view of a doubtful point, and make him declare, say, for goods sold and delivered when the real facts, as proved, only make a case of goods bargained and sold, the un- lucky plaintiff is cast, not because he is not entitled to recover, but because he has not put his case as wisely as he might have done. In practice, dangers of this kind are mitigated, though by no means invariably escaped, by inserting a multi- tude of counts, all giving slightly different versions of the same transaction, in order that on one or other of them the plain- tiff may be found to have stated cor- rectly the legal effect of the facts. The permission to do this was in fact a recog- nition of the plaintiff's inherent right to ask alternative relief; but it was clogged by the absurd condition that he could only do so by resorting to the clumsy fiction of pretending to have a number of independent grounds of action, when he knew that he had only one, but did not know exactly what the court might con- sider the legal effect of his facts to be. This was not only unscientific and irra- tional, but, in some cases, it has led to enormous expense by compelhng a plain- tiff to declare on, and a defendant to plead to, scores of fictitiously differing counts, when there was only one matter in dis- pute between them. We do not suppose that the greatest zealot among special pleaders would say that such a queer scheme as this is preferable to one under which the plaintiff states the facts on which he founds his claim, and asks for such relief as their legal effect may entitle him to." " Saturday Review," April 12, PRINCIPLES OF COMMON-LAW PLEADING. 551 § 512. The extent of these fictitious allegations in pleading, and their influence upon the form and growth of legal doctrines at large, are exhibited in a remarkable manner by the history of the action of assumpsit, and its effect in originating and develop- ing the doctrine of implied promises and contracts. At an early day, the action of debt was the only one by which to recover for the breach of an unsealed contract ; but the defendant was per- mitted to " wage his law," and by that means to greatly embar- rass, if not to defeat, the plaintiff's recovery. To obviate this difficulty, the action of assumpsit was at length invented. The gist of this action was the defendant's promise ; the distinctive averment of the declaration was the promise, of course express in form, and so indispensable was it, that, if the allegation was omitted, judgment would be arrested, or reversed on error, even after verdict in the plaintiff 's favor. The promise was stated to have been express, and in fact no form of common-law action provided for a recovery upon an implied promise ; in every case of assumpsit, either general or special, on the common counts or otherwise, the~ defendant was represented as having expressly promised. For a considerable period of time after the invention of assumpsit, undoubtedly the contracts enforced by its means were all express, so that the averment of the declaration accorded with the actual transaction between the parties, as shown by the evidence. In the course of time, however, cases were brought before the courts, in which the right of action on the one hand, and the liability to pay on the other, depended upon a moral and equitable duty of the defendant, arising, not from any promise made by him, but from the acts, circumstances, and relations ex- isting between him and the plaintiff. The courts were thus placed in a dilemma. The obligation of the defendant and the right of the plaintiff were founded upon the plainest principles of equity and justice, and to den}'- their existence was impossible. Still, there was no action directly appropriate for their enforce- ment. None of the actions ex delicto could be used, since there was no tort ; debt was also out of the question, because the amount claimed was unliquidated damages ; even assumpsit was 1873, vol. 35, p. 472. In the face of this to be as fictitious as many of its ordi- most accurate description of common-law nary allegations, — one of the fictions pleading in its essence, the assertion that which make up so large a part of the it requires a statement of the actual facts system itself, constituting the cause of action is seen 552 CIVIL REMEDIES. not applicable, for there was no promise. In this emergency the English judges were true to their traditions, and to all their modes of thought. Instead of inventing a new action, and applying it to the new class of facts and circumstances, they reversed the order, and applied the facts and circumstances to the already existing actions. They fell back upon their invariable resoui'ce, the use of fictions ; but went farther than ever before or since ; and, instead of inventing a fictitious element in the action, they actually added a fictitious feature to the facts and circumstances from which the legal right and duty arose. They selected the existing action of assumpsit as the one to be employed in such classes of cases ; and since that action is based upon a promise, and since the declaration must invariably allege a promise to have been made, the earljr judges, instead of relaxing this requirement of pleading, actually added the fictitious feature of a promise which had never been made to the facts which constituted the defendant's liability. In other words, the courts invented the notion of an implied promise, in order that the cases of liability and duty resulting from certain acts, omissions, or relations where there had been no promise, might be brought within the action of assumpsit, and be tried and determined by its means. There is no more singular and instructive incident than this in the whole history of the English law, and it has a most direct and important connection with the practical rules of pleading under the reformed procedure of the codes. We see that the notion of an implied promise as the ground of recovery in these cases of moral and equitable duty did not exist prior to and independent of the action which was selected as the proper instrument for its en- forcement ; on the contrary, the action already existed the dis- tinguishing feature of which was the allegation of a promise made by the defendant, and a fictitious or " implied " promise was in- vented and superadded to the actual facts constituting the de- fendant's liability, for the simple purpose of bringing his case within the operation of that action and its formal averment.^ 1 It would be both interesting and in- an excursion. I quote, however, the con- structive to trace this doctrine of implied elusions readied by Judge Metcalf in his promises through the whole series of exceedingly able work upon Contracts, as cases, from its first suggestion as a fiction an autliority for the position taken in the of pleading until it became firmly incor- text. After an analysis of numerous early porated into the general theory of con- cases, he says : "As there will be no occa- tracts ; but my limits will not permit such sion to advert hereafter to tlie fictions PBINCIPLES OP COMMON-LAW PLEADING. 553 § 513. Having thus described the three types of pleading in existence when the reformed procedure was inaugurated, I now proceed to examine the system introduced by that procedure itself. In pursuing this investigation, I shall endeavor, first, to ascertain the essential and general principles upon which it is founded ; secondly, to determine the manner in which the plain- tiff should set forth the affirmative subject-matter of the action in his complaint or petition ; and thirdly, to apply the results thus reached to the most important and common instances of action and remedy. Although I shall aim at a close conformity with the true spirit and intent of the statutory legislation, yet this intent will be sought for in the decided cases which have given a judicial interpretation to the codes. It must be conceded at the outset that there is an irreconcilable conflict between two classes of decisions, not only in mere matters of detail, but in adopted in setting forth the plaintiff's claim in declarations in the action of as- sumpsit, it may not he amiss to present a succinct view of those fictions, and of the reasons on which they are founded. The usual action on a simple contract in old times was debt. The declaration in that action averred in substance that the de- fendant owed the plaintiff, and thereupon an action had accrued, &c. No promise was alleged, for no promise was necessary. But the defendant was allowed to wage his law. To avoid this wager of law, a new form of action was devised, to wit, the action of assumpsit, in which a prom- ise of the defendant was alleged, and was indispensable. A declaration which did not aver such promise was insuflBcient even after verdict; and the law is the same at this day. The promise declared on is always taken to be express. In pleading, there is no such thing as an im- plied promise. But as no new rule of evi- dence was required in order to support the new action of assumpsit, it being necessary only to prove a debt, as was necessary when the action was debt, the fictitious doctrine of an implied promise was introduced ; and for the sake of legal conformity it was held, when the defend- ant's legal liability was proved, that the law presumed that he had promised to do what the law made him liable to do. . . . A single example will illustrate these two fictions [the author had described the kindred fiction of an (implied) request alleged to have been made]. A husband is bound by law to support his wife ; and if he wrongfully discard her, any person may furnish support to her, and recover pay therefor of the husband. In the ac- tion of debt, there would be no necessity to allege a promise in such a case. But the husband might wage his law, and de- fraud the plaintiif. In the action of assumpsit, the furnishing of the supplies must be alleged to have been by the plaintiff at tlie husband's request, and a promise of the husband to pay must also be alleged. But proof of the actual facts supports both these allegations. The husband, being in law liable to pay, is held to have (impliedly) made both the request and the promise." Metcalf on Contracts, pp. 203, 204. This origin of the implied promise, of its invention as a fiction in order to bring the case within the operation of " assumpsit " throws a strong light upon the question, whether, in an action to enforce such a liability under the codes, the plaintiff should, in addition to the actual facts from which the defendant's liability arises, also allege a promise to have been made by him. The promise was simply a formal inci- dent of the particular action in the old system, and is certainly no more than such an incident in the new. 554 CIVIL KEMEDIES. their whole course of reasoning, in the premises which they as- sume, and in the conclusions which thej' draw therefrom. But this conflict was, in by far the greater part of the States, confined to the earlier periods of the reform, and has virtually disappeared. There is a substantial agreement among the courts in respect to the general principles which they have finally adopted : whatever differences now exist arise in the process of applying these funda- mental doctrines to particular cases. The confusion which ac- tually prevails to a very great extent in several of the States results not from any uncertainty either in the general principles or in the more subordinate rules, but from an entire ignorance or disregard of them by pleaders, and from a neglect to enforce them by the judges. § 514. Before entering upon the matter thus outlined a pre- liminary question suggests itself, upon the answer to which much of the succeeding discussion must turn. This question involves the true relations between the doctrines and rules of pleading enacted by the codes and those which existed previously as parts of the common law and the equity jurisprudence, and may be stated as follows : Are the doctrisies and rules contained in the statute to be regarded as the sole guides in pleading under the reformed procedure ? or are the ancient methods still controlling, except when inconsistent with some express provisions of the later legislation ? In answering this inquiry, the two schools of interpretation so often mentioned again appear, and the differ- ence between them is the same as that already described under a somewhat altered shape. It is plain that the position taken by the courts, in answering the question here suggested, must to a very great extent influence the whole body of practical rules which they adopt in reference to pleading as well as to all the other features of the civil action. According to one theory, these doctrines and rules of the common law and of equity still remain, although changed in many particulars by the reform legislation : the pleader must first recur to them, and must then examine how far their requirements have been abrogated or altered by the statute ; in a word, the legislation is purely amendatory, and is not reconstructive. According to the other theory, these doc- trines and- rules of the common law and of equity do not exist at all as authoritative and controlling, — that is, as controlling he- cause rules of the common law or of equity. The general prin- GENERAL PRINCIPLES OF PLEADING. 555 ciples and fundamental requirements of the codes have been substituted in their place, completely abrogating them, and con- stituted by the legislature as the only sources of authority to the bench and the bar in shaping the details of the reformed proce- dure. If any particular doctrine or rule which formerly prevailed is also found existing to-day, it so exists not because it is a part of the common law or of the equity system, but because it is either expressly or impliedly contained in and enacted by the reformatory statute. When, therefore, in discussing and inter- preting such a doctrine, a resort is had to the former methods for aid, the reference is, not to obtain authority, but to find an analogy or explanation. In other words, the system introduced by the codes is regarded as complete in itself, entirely displacing the ancient modes. In several particulars, however, its doctrines and rules are either identical with or closely resemble those which existed before ; and, in their judicial construction, recourse must be had by way of explanation and analogy merely to these original forms, but no such recourse is to be had for the purpose of ob- taining the authority for any proposed measure or practical regu- lation connected with the pleading under the new procedure. § 515. During the earlier periods of the present system, there was an evident disposition on the part of some judges and courts to adopt the former of these two views, and to hold that the old methods, rules, and requisites of the common law and of equity, are still applicable in substance when not inconsistent with the provisions of the statute ; or, in other words, that they had been supplanted only so far as such inconsistency extends.^ The second theory has, however, been generally if not universally adopted as the true interpretation to be put upon the language of the codes, and as the starting-point in the work of construct- ing a system of practical rules for pleading. The proposition, as stated in the foregoing paragraph, has been expressly announced in well-considered judgments ; in the vast majority of instances, however, it has rather been assumed and impliedly contained in the decision of the court, yet none the less passed upon and affirmed. It may now, I think, be regarded as the established 1 See Howard v. Tiffany, 3 Sandf , 695 ; Davis, 6 How. Pr. 401 ; Houghton v. Fry U.Bennett, 5 Sandf. 54; McMaster Townsend, 8 How. Pr. 447; Boyce V. Booth, 4 How. Pr. 427 ; Rochester City v. Brown, 7 Barb. 80 ; Knowles v. Gee, 8 Bankw. Suydam, 5 How. Pr. 216; Wooden Barb. 300; Bank of Genesee i^. Patchin V. Waffle, 6 How. Pr. 145 ; Buddington v. Bank, 13 N. Y. 309, 313. 556 CIVIL REMEDIES. doctrine, that the code in each of the States is the only source of authority from which rules of pleading may be drawn, that its methods have completely supplanted those which preceded it, so that the latter can no longer be appealed to as possessing of them- selves any force and authority.^ § 516. The general and essential principles of pleading. I shall now proceed to gather from the text of the codes, as interpreted by the most authoritative decisions, and to state in order, the comparatively few general and essential principles of pleading introduced by the reformed procedure, which constitute the foundation of its simple, natural, and scientific as well as prac- tical system. These essential principles apply to certain classes of answers in addition to all complaints or petitions, although from the nature of the two pleadings tliey find their fullest and highest expression in the latter. Whenever the answer is simply in the form of denial, whether general or specific, it is of course governed by rules applicable to it alone. But so far as the an- swer contains defences of new matter, and a fortiori so far as it contains a counter-claim, or set-off, or the basis of any affirmative relief, its allegations and those of the complaint or petition must conform to the same requirements, must follow the, same method. The general and essential principles of the reformed pleading now to be discussed, illustrated, and arranged in an orderly man- ner, apply therefore alike to the plaintiff's statement of his case for relief, and to the defendant's statement of affirmative matter, either by way of defences in confession and avoidance, or by way of cross-demands against any parties to the action. § 517. The fundamental and most important principle of the reformed pleading, the one from which all the others are deduced as necessary corollaries, is the following : The material facts which constitute the ground of relief, or the defence of new matter (confession and avoidance), should be averred as they actually existed or took place, and not the legal effect or aspect of those facts, and not the mere evidence or probative matter by which their existence is establised.^ I have purposely refrained 1 Trustees v. Odlin, 8 Ohio St. 293 ; son, 1 id. 403, 430 ; Scott v. Kobards, 67 Jolly V. Terre Haute, &c. Co., 9 Ind. 421 ; Mo. 289 ; Dunn u. Remington, 9 Neb. 82 ; Wliite V. Joy, 13 N. Y. 83, 90 ; People v. Ingle «. Jones, 43 Iowa, 286. Ryder, 12 N. Y. 433, 438, 439; Ahern v. 2 People v. Ryder, 12 N. Y. 433, 437 ; Collins, 39 Mo. 145, 150. See also Clark Hill v. Barrett, 14 B. Mon. 83 ; Green v. V. Bates, 1 Dakota, 42 ; Clay Co. u. Simon- Palmer, 15 Cal. 411, 414 ; Rogers v. Mil- GENERAL PKINCIPLES OF PLEADING. 557 from using the common formula, " facts which constitute the cause of action," in order tliat the principle might be expressed waukee, 13 Wis. 610, 611 ; Binl v. Mayer, 8 Wis. 36:3, 367 ; Horn r. Ludington, 28 Wis. 81, 83 ; Groves v. Tallnian, 8 Nev. 178 ; Pier u. Heinriohoffen, 52 Mo. 333, 335 ; Wills v. Wills, 34 Ind. 106, 107 ; De Graw f. Elmore, 50 N. Y. 1 ; Cowin v. Toole, 31 Iowa, 513, 516 ; Singleton i;. Scott, 11 Iowa, 589; Bowen v. Aubrey, 22 Cal. 566, 569; Pfiffner v. Kraufel, 28 Iowa, 27, 34 ; White v. Lyons, 42 Cal. 279, 282 ; Louisville, &c. Co. v. Murpliy, 9 Bush, 522, 527 ; Gates v. Salmon, 46 Cal. 361, 379; King v. Enterprise Ins. Co., 45 Ind. 43, 55 ; Lytle v. Lytle, 37 Ind 281 ; Van Scliaick v. Farrow, 25 Ind. 310 ; Chicago, &c. K. R. v. North West. Un. Co., 38 Iowa, 377, 382; Bowen o. Emmerson, 3 Oreg. 452 ; Cline v. Cline, 3 Oreg. 355^ 358 ; Gates v. Gray, 66 N. C. 442, 443 ; Farron v. Sherwood, 17 N. Y. 227 ; Coryell v. Cain, 16 Cal. 567, 571. I quote from someof these cases in which the general principle is fully stated, in order that the exact views of the courts may be shown, as well as the conclusions drawn from them in the text. The opin- ion of Marvin J. in People v. Ryder is exceedingly instructive, and covers most of the subordinate questions that arise in connection with the general topic. He said (p. 437) : " This rule [§ 142 of the New York code] is substantially as it ex- isted, prior to its enactment, in actions at law. Chitty says : ' In general, whatever circumstances are necessary to constitute the cause of complaint or ground of de- fence must be stated in the pleadings, and all beyond is surplusage ; facts only are to be stated, and not arguments or infer- ences or matter of law, in which respect pleadings at law appear to differ material- ly from those in equity.' (1 Ch. PI. 245.) At page 266 he says: 'It is a most im- portant principle of the law of pleading, that in alleging the fact it is unnecessary to state such circumstances as tend to prove the truth of it. The dry allegation of the fact, without detailing a variety of minute circumstances which constitute the evidence of it, will suffice. The ob- ject of the pleadings is to arrive at a spe- cific issue upon a given and material fact ; and that is attained although the evidence of such fact to be laid before a jury be not specifically developed in the pleadings.' I have supposed it safe, and a compliance with the code, to state the facts constitut- ing the cause of action substantially in the same manner in which they were stated in the old system in aspfciut count. By that system the legal issuable facts were to be stated, and the evidence by which those facts were to be established was to be brought forward upon the trial. This position will not embrace what were known as the common counts. . . . It lias been supposed that a wider latitude should be allowed in equity pleading, and tliat evidence may to some extent be incor- porated in the statement. The rule of the code is broad enough for all cases ; and it permits a statement of facts and circumstances as contradistinguished from the evidence which is to establish those facts. But in all equity cases the facts may be more numerous, more compli- cated, more involved ; and the pleader may state all these facts in a legal and concise form which constitute the cause of action, and entitle him to relief. The rule touching the statement of facts con- stituting the cause of action is the same in all cases ; and the rules by which the sufiiciency of pleadings is to be deter- mined are prescribed by the code." How far the positions quoted from Mr. Chitty are correct is shown in the preceding paragraphs of this section. No more ac- curate exposition of the fundamental doc- trine announced by the codes is to be found in the books than the foregoing opinion of Mr. Justice Marvin. In several of the cases to be cited the discussion has been confined to legal actions, and general statements have been made in reference to the "material" or "issuable" facts which are plainly erroneous when applied to suits brought for equitable relief The principle as formulated by Mr. Justice Marvin embraces both species of actions, and brings them both within the purview of the statutory provision. In Hill v. Barrett the same fundamental principle was stated by Marshall J. in a most clear 558 CIVIL KEMEDIES. in its most comprehensive manner, and might include equitable as well as legal actions. As will be shown in the sequel, it is and admirable manner (p. 84): " Although the Code of Practice has abolished not only the pre-existing forms of action, but also the pre-existing forms of pleading, and has declared that henceforth the forms of pleadings, and the rules by which their sufficiency is to be determined are those prescribed in the code itself, it adopts what has always been a cardinal rule witli respect to the allegation of the plaintiiT, now called a petition, that it must contain a statement of tlie facts con- stituting the plaintiff's cause of action. While the code contains a very few ad- ditional rules with respect to the mode or manner of alleging the facts relied upon as constituting a cause of action, it does not, and could not, particularize the facts necessary to be stated, nor give any af- firmative rule more special or more in- structive than that which requires that the petition shall contain the facts con- stituting the plaintiff's cause of action." [Here follows the passage quoted in the text of § 108, supra, to and including the words "that the declaration must state the facts which constitute the plaintiff's cause of action ; " after which the opinion proceeds as follows ;] " In adopting this fundamental rule of pleading, the code must be considered as adopting also the prevailing and authoritative expositions of it as understood at the time, except so far as the code itself either expressly or by necessary implication requires facts to be stated which need not before have been stated, or dispenses with tlie state- ment of facts formerly deemed necessary. The express dispensations apply rather to the forms of statement than to the facts to be stated. The implied dispensations grow mainly out of the reduction of all actions to one form. The requisites of additional facts may be implied from the abolition of that rule v^hich had formerly made it sufficient, and indeed proper, to state facts according to their legal effect, in- stead of stating them as they actually okcurred, while the code seems to require by the rule that they shall be stated in ordinary language." In Green v. Palmer, the Su- preme' Court of California laid down the rules in respect to the kinds of facts which should be averred, and defined the nature of " material " or " issuable " facts in a most exhaustive manner. From the elaborate opinion of Field C. J. the fol- lowing extracts are taken (p. 414) ; " First rule. Facts only must be stated. This means tlie facts as contradistin- guished from the law, from argument, from hypothesis, and from evidence of the facts. The facts must be carefully distinguished from the evidence of the facts. The criterion to distinguish the facts from the evidence is, — Second rule. Those facts, and those alone, must be stated which constitute the cause of ac- tion, the defence, or the reply. There- fore (1) each party must allege every fact which he is required to prove, and will be precluded from proving any fact not alleged. The plaintiff, on his part, must allege all that he will have to prove to maintain his action; the defend- ant, on his part, all that he must prove to defeat the plaintiffs title after the com- plaint is admitted or proved. (2) He must allege nothing affirmatively which he is not required to prove. This is some- times put in the following form ; viz., ' that those facts, and those only, should be stated which the party would be re- quired to prove.' But this is inaccurate, since negative allegations are frequently necessary, and they are not to be proved. The rule applies, however, to all affirma- tive allegations, and, thus applied, is uni- versal. Every fact essential to the claim or defence should be stated. If this part of the rule is violated, the adverse party may demur. In the second place, nothing should be stated which is not essential to the claim or defence ; or, in other words, none but ' issuable ' facts should be stated. If this part of the rnle be vio- lated, the adverse party may move to strike out the unessential parts. An un- essential, or what is the same thing, an immaterial allegation, is one which can he stricken from the pleading without leav- ing it insufficient, and, of course, need not be proved or disproved. The following question will determine in every case GENERAL PRINCIPLES OF PLEADING. 559 only in legal actions that the material or issuable facts which are to be averred "constitute the cause of action " in the strict sense whether an allegation be material : Can it be made the subject of a material issue ? la other words, If denied, will the failure to prove it decide the case in whole or in part 7 If it will not, then the fact alleged is not material (issuable) ; it is not one of those which constitute the cause of ac- tion, defence, or reply." Tliis opinion was adopted, and the mode of distinguishing " material " or " issuable " allegations was approved by the Supreme Court of Ore- gon in Cline v. Cline, 3 Oreg. 355, 358, 359. The criterion thus proposed by Mr. Chief Justice Field is perfect in its appli- cation to legal actions, but is hardly broad enough to include all cases where equita- ble relief is demanded, unless it was in- tended to embrace such cases in the lan- guage " decide the case in whole or in part." If such was the intention, the manner of stating the rule is somewhat obscure, and it clearly needs amplification and explanation. I return to this question in a subsequent paragraph of the text. Horn V. Ludington, 28 Wis. 81, is an instructive decision in reference to the proper allegations to be made in an action for equitable relief. The action was equi- table. The complaint averred that in 1870, and for a long time prior thereto, the defendant L. held in his own name the legal title to certain property described.for the benefit of, and in trust for, the plaintiff and three others, defendants, who, with the plaintiff, were the cestuis que trustenl, and were entitled thereto in equal shares as tenants in common. It then alleged acts of L. in violation of his duty, and in denial of the trust. It prayed an execu- tion of the trust by a conveyance of the property to the beneficiaries ; or if that had been made impossible, then by a division of the proceeds in L'.'s hands. The defendant L. moved to make this complaint more definite and certain in its averments in respect to the existence of the trust. This motion having been denied in the court below, L. appealed ; and the ' opinion of the Supremo Court was pro- nounced by Lyon J., who, after quoting the provisions of the code concerning the complaint, proceeds (p. 88) ■ " Here the cause of action is the alleged trust, the same as in a money demand on con- tract the debt is the cause of action. If there be no debt, there can be no recov- ery ; and in this action, if there is no trust, the plaintiff cannot recover. The cause of action — that is, the trust — is stated in the complaint; but the facts constituting such cause of action ^namely, the facts which make L. a trustee of the plaintiff and others in respect to the property in controversy — are not therein stated. We think, there- fore, that the plaintiff should have been required to make his complaint more definite and certain in this particular by stating facts which will show that L. holds the title to the property as such trustee." Some observations upon this opinion seem to be necessary. If its reasoning be correct, it leads to most important consequences. If the cause of action is stated, but not the " facts constituting the cause of action," tlien the complaint would have been demurrable, since the requirement is positive that such facts must be alleged, and their absence from the pleading is the principal ground of demurrer. But it cannot for a moment be claimed that this complaint would be bad on demurrer. The fundamental er- ror of the opinion is the assumption that the Irvst is the cause of action. The trust is simply one fact going to constitute the cause of action. The allegation of the trust in this case was the averment of a material fact in its broadest manner and form and in its legal sense or aspect, as was done in the common-law pleadings. But the suit being equitable, and the code demanding a, statement of the material facts as they occurred, and not merely an allegation of their legal view or effect, this complaint was clearly defective in this respect. While the decision was, therefore, right, the reasoning is quite misleading ; at all events, it is opposed to the course of argument pursued in the great majority of reported cases. It in- volves, however, the doctrine, that in equitable suits the material facts neces- sary to be averred may be quite different 560 CIVIL REMEDIES. of the term ; while in equitable actions facts maybe material, and must be alleged, which, while they form the basis of or modify in their nature from those which must he alleged in legal actions. In Pier «. Hein- richoffen, 52 Mo. 333, wliicli was an ac- tion against the indorsers of a note, tlie petition alleged a demand of payment at maturity, and notice of non-payment given to the defendants. At the trial the plaintiff proposed to prove facts ex- cusing such demand and notice ; and, the evidence being rejected, a verdict was ren- dered against him. This ruling was sus- tained by the Supreme Court. Ewing J., after saying that the plaintiff's mode of pleading would have been proper under the common-law system, proceeds (p. 385) : " As the vice of the old system of pleading was its prolixity, its general averments and general issues, and the delay and expense inseparable from it, the new system which we have adopted has little claim to be considered a reform, unless it avoids such defects, and furnislies rules by which the great object of all pleadings is attained ; viz., to arrive at a material, certain, and single issue. Hence the great improvement of our code consists in requiring the pleadings to con- tain a plain and concise statement of the facts constituting the cause of action, or matter of defence. Facts and not evi- dence nor conclusions of law, must' be stated. Every fact wliich the plaintiff must prove to maintain liis suit is consti- tutive in the sense of the code." The petition in this case, it was held, should liave averred the matters of excuse sought to be proved. The description liere given of issuable or " constitutive " facts is ap- propriate to legal actions only, and must be modified in its terms in order to meet the characteristic features of many equi- table suits. Wills i: Wills, 34 Ind. 106, is also very instructive, and contains a principle of wide application v/hich dis- tinguishes the present from the former theory of pleading. The action was brought to recover for the use and oc- cupation of certain land, and the com- plaint was claimed to be radically de- fective. Downey J. said (p. 107) ; " The objection to the complaint is that it contains no allegation that the defend- ant ever promised to pay, or ever agreed to pay, or that he was indebted to the plaintiff. To this the appellee answers that it is not necessary to use any word that shows an undertaking, agreement, or promise on the part of the defendant to pay rent, fornone ever existed; that the complaint states facts, and, technically speaking, the law raises the implied prom- ise to pay; tliat the right of action, in fact, does not stand upon any contract or agreement, but arises from principles of equity and good conscience. . . . This is not a question relating to the right to re- cover rent on the one hand, or the liability to pay it on the other ; but it is a question of pleading. The question is this : Is it allowable, and is it sufficient, for the party to set forth the facts from which a prom- ise or indebtedness may be implied % or must he allege the promise or indebted- ness, and then support it at the trial by proof of the circumstances ? " The judge here cites Gould on Pleading, p. 48, § 19, to the effect that a promise must always be averred in pleading in assumpsit, and in debt the declaration alleges that the de- fendant is indebted, and proceeds : " The complaint in this case is sui genens. We cannot classify it. It is not in assumpsit, for it alleges no promise ; it is not in debt, for it alleges no indebtedness. But, after some examination of cases decided under codes similar to our own, we have come to the conclusion that, tested by the code, the complaint may be sufficient. It would seem that, contrary to the rule at the com- mon law, a party in a suit for a money de- mand on a contract like this, where the contract is implied, may allege the facts from which the law implies the promise; and it will be sufficient without alleging the promise or an indebtedness." He adds that it is better, however, in all cases to allege a promise. " It is always good pleading to state the legal effect of the contract, whether it be written or oral." This opinion is a striking illustration of the pertinacity with which courts have clung to the ancient notions of actions and pleading that have been entirely ab- rogated by the reform legislation. Al- GENERAL PRINCIPLES OF PLEADING. 561 the remedy demanded, do not properly constitute the cause of action. This distinction will be fully developed in subsequent though reaching a correct decision, this conclusion was evidently forced upon the judges, and was accepted by them, as it were, under protest. It actually appeared strange to tliem that a complaint, drawn in exact conformity with the requirements of the new procedure, should not be a dec- laration in assumpsit or in debt, as though the code was not enacted to produce this very result. The remark with which the quotation ends was undoubtedly true while the common-law methods prevailed ; but it is exactly contrary to the whole spirit and intent of the present system ; it means that a party, instead of stating the actual facts as they really occurred from which the liability called an implied contract arises, should state the legal effect of those facts, and should thus aver a fiction, as was required by the former rules of plead- ing. In De Graw v. Elmore, 50 N. Y. 1, which was an action to recover back the price paid to defendant for certain stocks alleged to have been fraudulently sold to the plaintiff, tlie complaint averred the fraud, the plaintiff's election to rescind, a tender of the stocks, and a demand of the price. In stating the original sale, it alleged that the purchase-price had been paid in money. On the trial, however, it appeared that the plaintiff did not pay any money, but that defendant owed him 816,000 on a prior account growing out of contract, and that the price of tlie stocks, •S9,000, -was paid by giving the defendant credit for so much on this existing indebt- edness. Upon this evidence a motion for a nonsuit was denied, and the plaintiff had a verdict, which was set aside by the Court of Appeals. The opinion of the court, by Grover J., first states the settled rules of law as to the remedy of a party who has been induced bj' fraud to enter into a contract : he may affirm the contract, and bring an action for his damages ; or he may rescind, — restore to the other party all lie has received, and recover all he has parted with. In this case the plaintiff elected to rescind, and to recover back the money paid. " It turns out that there was no money paid, but only a credit given on a former debt ; and the court below held that he could recover that amount if the other facts were proved. This was error. The contract being rescinded, the plaintiff was restored to his original position and right. That right was to re- cover the account in an action upon con- tract. Upon the judgment so recovered the defendant could neither be arrested nor imprisoned. The credit could not be regarded as so much money paid for the purposes of this action, and, in that way, a judgment recovered which could be enforced by imprisonment. It is insisted that, under the code, forms of action are abolished, and that the facts showing the right of action need only he stated. This is correct ; but it does not aid the plain- tiff. The facts are not stated. The plaintiff liad a cause of action against the defendant upon an account for money ad- vanced for him. Instead of stating this cause of action, the allegation is in sub- stance that he paid him money as the price of stocks fraudulently sold by the defendant to tlie plaintiff,'which contract has been rescinded by the plaintiif, and a return of the money demanded, which has been refused by the defendant. These causes of action differ in substance. The former is upon contract, the latter for tort ; and the law will not permit a re- covery upon the latter by showing a right to recover upon the former." InPfiffiner V. Krapfel, 28 Iowa, 27, 31, Cole J. very truly said : " Our system of pleading is essentially a fact system, intended to re- quire the parties in judicial proceedings to state the facts of their claims, and advise the opposite party of the true nature and object of the suit. It is against the spirit and plain intent of our code to allow par- ties to claim as fruits of their litigation that which was not by the fair and obvious import of the pleadings put in issue and litigated between tliem." In the very re- cent case of Louisville, &c. Canal Co. r. Murphy, 9 Bush, 522, 527, the Kentucky Court of Appeals stated the general doc- trine in the following manner : " While the ancient forms of pleading are abol- ished, still every fact necessary to enable the plaintiff in the action to recover must. 36 562 CIVIL REMEDIES. paragraphs which discuss the mode of pleading in equitable ac- tions. This single and simple principle lies at the foundation of the entire reformed method introduced by the codes. When fully comprehended, it will be found to involve all the other requisites of the system. It distinguishes the new pleading from each of the three types which formerly prevailed, and which have already been described ; from the modes used in the equity and the civil- law courts, by wholly dispensing with any statements of proba- tive matter, and by limiting the averments to the fundamental facts which constitute the cause of action or the grounds of relief ; and from the mode used in the common-law courts, by discarding all fictions, all technicalities, all prescribed formulas, and by re- quiring the material facts to be alleged as they actually existed, and not their legal effect, and still less the legal conclusions in- ferred from them. In discussing this fundamental principle, and developing from it the subordinate doctrines and practical rules which are involved in its general terms, its component elements must be separately examined, and the full import of each must be carefully ascertained. This analysis will lead me (1) to define the legal meaning of the term "cause of action" as used in the codes, and to point out the somewhat different senses which must be given to the phrase when it is applied to legal and to equi- table actions ; (2) to determine the nature of the facts which be alleged, and every essential averment or if there was no express promise, then required to make a declaration good at tlie the facts from which a promise upon a common law upon general demurrer must sufSeient consideration would be implied be made in the petition. The facts must by the law ; and also the facts showing be alleged so as to enable the opposite that the time for payment had expired, party to know what is meant to be proved, or that the contract had been broken in and also that an issue may be framed in some other manner. In giving this con- regard to the subject-matter of dispute, struction to the code, the court declared and to enable the court to pronounce the that the common counts in assumpsit, as law upon the facts stated. The dry al- used in the old procedure, were not in legation of the facts in the petition, with- accordance with these principles, and out setting forth the evidence of tlie truth could not be resorted to. Similar quota- of tlie statements made, is all that is re- tions might be almost indefinitely mul- quired." The Supreme Court of Oregon, tiplied ; but these are sufficient to show in Bowen v. Emmerson, 3 Oreg. 452, ap- the positions assumed by the courts in an- plied the general principle to the com- nouncing the most important doctrine of plaint in an action for money due upon the reformed pleading. See, as further simple contract, and stated the essential examples, Clark v. Bates, 1 Dakota, 42; averments of such a pleading. The facts Clay Co. v. Simonson, 1 id. 403, 430; should be alleged showing that a contract Scott v. Robards, 67 Mo. 289 ; Dunn v. existed between the parties which had Remington, 9 Neb. 82 ; Ingle w. Jones, 43 been broken ; the consideration should be Iowa, 286. mentioned, and the promise, if express ; GENEKAX PRINCIPLES OF PLEADING. 563 " constitute the cause of action " in each of its two significations, and in this connection to point out the difference between the " issuable facts" averred in legal actions and the facts material to the remedy but not strictly "issuable "' sometimes necessary to be alleged in equitable actions, and to explain the distinction in this respect which inheres in the modes of pleading employed in these two classes of suits ; and (3) to discuss the requirement that these material facts should be stated as they actually occurred or existed, and not their legal effect and meaning, and to display its full force and significance. The result of this analysis will then be applied in developing the various general rules which make up the reformed system of pleading. § 518. The term " cause of action " is employed by the fram- ers of the codes in several different connections ; but it must be assumed that in each of them it was intended to have the same signification, that, wherever used, it was designed to describe the same elements or features of the judicial proceeding called an action. The courts have never, so far as I have been able to discover, attempted any thorough and exhaustive discussion of the phrase, and determined its meaning by any general formula or definition ; and little or no aid will therefore be obtained in this inquiry from judicial interpretation. The few decided cases which venture upon a partial description were quoted in the last preceding section. In another instance, not there referred to, in which the plaintiff alleged that the legal title to certain lands was vested in the defendant, but that these lands were held by him in trust for the plaintiff, and demanded an execution of the trust by conveyance, &c., the cause of action was decided to be " the trust ; " the court declaring that in every money demand on contract " the debt " is the cause of action, and hold- ing that, in the case before them, the cause of action itself — the trust — was stated in the complaint, but that the facts consti- tuting it were not averred.^ § 619. The true signification of the term " cause of action " was carefully examined and determined in the second section of the present chapter ; and I shall not repeat the course of discus- sion there pursued, but shall simply recapitulate the conclusions which were reached. Every action is based upon some primary right held by the plaintiff, and upon a duty resting upon the 1 Horn V. Ludington, 28 Wis. 81, 83. 564 CIVIL KEMEDIES. defendant corresponding to such right. By means of a wrong- ful act or omission of the defendant, this primary right and this duty are invaded and broten ; and there immediately arises from the breach a new remedial right of the plaintiff, and a new remedial duty of the defendant. Finally, such remedial right and duty are consummated and satisfied by the remedy which is obtaiued through means of the action, and which is its object. Now, it is very plain, that, using the words according to their natural import and according to their technical legal import, the " cause of action " is what gives rise to the remedial right, or the right of remedy, which is evidently the same as the term "right of action " frequently used by judges and text-writers. This remedial right, or right of action, does not arise from the wrong- ful act or omission of the defendant — the delict — alone, nor from the plaintiff's primary right, and the defendant's corre- sponding primary duty alone, but from these two elements taken together. The " cause of action," therefore, must always con- sist of two factors, (1) the plaintiff's primary right and the defendant's corresponding primary duty, whatever be the subject to which they relate, pei'son, character, property, or contract ; and (2) the delict, or wrongful act or omission of the defendant, by which the primary right and duty have been violated. Every action when analyzed will be found to contain these two separate and distinct elements, and in combination they constitute the " cause of action." The primary right and duty by themselves are not the cause of action, because when existing by themselves, unbroken by the defendant's wrong, they do not give rise to any action. For this reason, that definition is clearly erroneous which pronounced the " debt " m an action on contract, or the " trust " in a suit to enforce a trust, to be the " cause of action." Much less can the delict or wrong by itself be the cause of action, because, without the primary right and duty of the parties to act upon, it does not create any right of action or remedial right as I have used the phrase. It is very clear from this analysis that the " cause of action" mentioned in the codes includes and con- sists of these two branches or elements in combination, — the primary right and duty of the respective parties, and the wrong- ful act or omission by which they are violated or broken. § 520. The first of these branches must always,, from the nature of the case, be a conclusion of law. The law by its com- GENERAL PRINCIPLES OF PLEADING. 565 mands creates a rule applicable to certain facts and circumstances, by the operation of which, when these facts and circumstances exist, a right arises, and is held by the plaintiff, and a correspond- ing duty arises and devolves upon the defendant. While this first factor of the " cause of action " is therefore always a con- clusion or proposition of law, and results from the command of the supreme power in the State as its cause, it necessarily pre- supposes the existence of certain facts and events as the occasion of its coming into operation. A complete and exhaustive exhi- bition of it would thus require a statement of the legal rule itself applicable to the given condition of facts and circum- stances, and of the primary right and duty arising therefrom ; and also an allegation that the facts and circumstances them- selves to which the rule applies, and on the occasion of which the right and duty arise, do actually exist or have existed. If this principle were adopted in pleading, every cause of action would demand a mingled averment of legal rules, of the facts and events to which they apply, and of the rights and duties result- ing from the operation of the given rule upon the existing facts. In the second branch of the cause of action, there is, on the other hand, no element whatever of the law: it is simply and wholly matter of fact. It consists entirely of affirmative acts wrongfully done, or of negative omissions wrongfully suffered by the defendant ; and its statement in a pleading can be nothing more than a narrative of such acts or omissions. A primary right existed in favor of the plaintiff, and a corresponding duty devolved upon the defendant, of which an integral element is a legal rule : this right and this duty, if positive, called upon the defendant to do some act towards the plaintiff, the nature of which depended upon the nature of the right and duty ; if negative, they called upon the defendant to forbear from doing some act towards the plaintiff, the nature of which was determined in like manner. In the one case, the defendant's delict consists in his not doing the act which his duty obliged him to do ; and in the other case, in doing the act which his duty forbade him to do. In both instances, therefore, the wrong which constitutes the second factor or branch of the cause of action is a fact more or less complex, and not either wholly or partially a legal conclusion or rule. § 521. Such being the general nature and signification of the 566 CIVIL REMEDIES. term " cause of action," its different phases of meaning, when applied either to legal or to equitable actions, will next be pointed out and described. These differences do not extend to its essen- tial elements ; they are wholly formal, and they result entirely from the external differences sometimes subsisting between legal and equitable primary rights and between legal and equitable remedies. In a legal cause of action, the primary right of the plaintiff and duty of the defendant are generally simple in their nature as contradistinguished from complex ; that is, they call for some single, simple, and complete act or forbearance on the part of the defendant ; and when broken by the defendant's delict, the remedial right and duty which arise always demand a single, simple, and complete act to be done by the defendant ; namely, either the payment of a sum of money as debt or damages, or the delivery of possession of a specific chattel, or the delivery of pos- session of a specific tract of land, which constitute the only remedies that can be obtained by a legal action. It follows, therefore, from the nature of a legal primary right and duty and of a legal remedy, that the cause of action in a legal suit is always simple, and can be stated, and must necessarily be stated, in such a manner, that the remedial right, if it exists at all, will be shown at once in its completeness and certainty. Further- more, the legal primary right must necessarily depend upon a few facts ; and these being all indispensable to its existence, the absence of even a single one will entirely invalidate the whole cause of action, and will show that no remedial right whatsoever has arisen. § 522. The foregoing description does not apply to equitable actions generally, although it undoubtedly does to some. In very many, and indeed in most, equitable causes of action, not merely the facts which are the occasion of the right, but the primary rights and duties themselves of the parties, are complex : it cannot be said of them that they must either wholly exist, or must be entirely denied ; they do not, in other words, demand a single specific act or omission on the part of the defendant, but a series, and often a very complicated series, of acts and omissions. In determining these primary rights and duties of the respective parties to an equitable suit, there must frequently be a settle- ment and adjustment of opposing claims ; one must be modified by another ; and, as the result, a collection of rights and duties GENERAL PKINCIPLES OF PLEADING. 567 is established inhering in each of the litigants, and embracino- a great variety of particulars. In certain classes of equitable actions it cannot be properly said that any wrong or delict has been committed by the defendant, or any violation of the plain- tiff's primary rights, unless an ignorance of those rights by all the parties, and a consequent hesitation on the part of all to act, can be deemed a technical wrong. These classes of suits are prose- cuted, not because there has been any denial of right or duty, but because in the absence of an accurate knowledge of their rights, or of power to arrange and adjust them by voluntary pro- ceedings, an appeal to the courts becomes necessary in order to solve the problem or to accomplish the adjustment. An action brought to construe a will may be mentioned as an illustration of the first class, and the ordinary suit for partition as an example of the second. Again : the remedies furnished by equity are sel- dom the single, simple, and complete awards of pecuniary sums, or of possession of lands or of chattels, as is the case with all legal judgments. They are complex and involved ; they often consist in an adjustment and award of partial reliefs to each of the parties ; they may provide for future and contingent emer- gencies ; and thej^ are sometimes nothing more than an authorita- tive determination by the court of the primary rights themselves belonging to the plaintiffs and the defendants. This sketch shows very plainly that an equitable cause of action is often very different, in its external form at least, from any legal cause of action ; and although the same general principle of pleading applies to each, yet it must undergo some modification in that application. The facts constituting the cause of action are to be stated in an equitable as well as in a legal action ; but facts do not constitute the equitable cause of action in the same sense nor in the same manner that they constitute the legal cause of action. § 523. The result thus reached leads to the second subdivision of the present inquiry ; namely, the nature of the facts which con- stitute the cause of action when that term is applied both to legal and to equitable suits. As has already been remarked, the first branch or division of the cause of action contains three distinct elements, two of them legal, and the other of fact ; the second branch consists wliolly of facts ; while the remedial right which flows from the two is of course a conclusion of law. If the theory 568 CIVIL EEMEDIES. of pleading required that all these elements should be expressed, then the plaintiff's complaint or petition would always comprise the following averments : (1) The rule of law applicable to certain facts from whieli his primary right and the defendant's primary duty arise ; (2) the existence of the facts to which such rule ap- plies, and which are the occasion of the right and duty ; (3) the primary right and duty themselves which spring from the opera- tion of such rule upon the given facts, — these three subdivisions forming the first branch of the " cause of action ; " (4) the facts constituting the violation of the primary right and duty ; that is, the wrongful acts or omissions of the defendant, — this statement being the second branch of the " cause of action ; " (5) the reme- dial right held by the plaintiff, and the remedial duty devolving upon the defendant, which result from the " cause of action," and are wholly conclusions of law. In this manner everytliing which enters into the plaintiff's case, fact and law, would be spread upon the record. A bill of complaint in chancery, prior to any statu- tory modification, was substantially constructed upon this plan, although the various subdivisions were not so logically separated and arranged. The mode of pleading which prevailed in the superior courts of Scotland seems to have been in complete con- formity with this theory. § 524. The reformed system, following in this respect the com- mon-law method, dispenses with several of these elements which make up the plaintiff's entire ground for relief: it wholly rejects all the subdivisions which are mere legal rules or conclusions, and admits only those that consist of the facts to which the legal rules apply, and which are the occasion whence the conclusions arise. It assumes that the courts and the parties are familiar with all the doctrines and requirements of the law applicable to every con- ceivable condition of facts and circumstances, so that, when a certain condition of facts and circumstances is presented to them, they will at once perceive and know what are the primary and the remedial rights and duties of both the litigants ; and this knowl- edge being complete and perfect, it is a useless incumbrance of the record to spread out upon it the legal propositions and inferences with which every one is assumed to be acquainted. A complaint or petition, therefore, drawn in accordance with this theory, must omit (1) the legal rule which is the direct cause of the primary right and duty, (2) the primary right and duty themselves which GENERAL PRINCIPLES OF PLEADING. 569 are the results of this rule acting upon the given facts, and (3) the remedial right and duty which accrue to the plaintiff; and it must only state (1) the facts which enter into the first branch of the cause of action and are the occasion of the primary right and duty, and (2) the facts which constitute the defendant's wrongful act or omission, — that is, the delict which is the second branch of the cause of action. As will be seen in the sequel, a statement of the legal rule, or of the primary legal right and duty without the facts to which they apply, and which are the occasion for their existence, is sufficient : it alleges no cause of action, and cannot be made the basis of an issue ; while such a statement in addition to those facts is surplusage, and, if the rules of pleading are strictly enforced, will be struck out on motion, and will, at all events, be wholly disregarded. We thus arrived at the first gen- eral doctrine in relation to the facts constituting the cause of action ; namely, the facts which are among the elements of the cause of action, that is, those which are the occasion for the primary right and duty to arise, and those which form the breach of such right and duty must be alleged, to the entire exclusion of the other elements that enter into the cause of action, — the legal rules, and the legal rights and duties of the parties. § 526. Before proceeding to the second general doctrine, I shall notice an apparent modification of or departure from the one just announced, vphich occurs in a certain class of actions. In a very great majority of instances, the complaint or petition must narrate in an express manner those facts, which, as I have shown, form an element of the first branch or division of the cause of action, — those facts to which the general rule of law applies in order to create the primary right and duty of the parties. In these cases, therefore, the pleading does actually contain, in direct and positive terms, the allegations of two dis- tinct groups of facts : first, those which are the occasion of the primary right and duty ; and secondly, those which are the breach of such right and duty, — the wrong or delict. There is nothing of fact left to be understood or assumed. In another class of cases, however, the first group of facts is not expressly averred ; it is omitted ; it is assumed to exist in the same manner that the legal rules are assumed; and the complaint or petition actually contains only those facts which constitute the breach, — the wrongful act or omission of the defendant. The peculiar class of 570 CIVIL REMEDIES. actions thus mentioned do not, however, depart from or violate the theory of pleading before described, but are constructed in exact conformity with it. The facts upon which the primary . right and duty of the parties depend are omitted, because they are in accordance with the universal experience of mankind, and must therefore be presumed to exist, so that their averment, like the averment of legal rules, is unnecessary. A simple and fa- miliar illustration is the action to recover damages for an assault and battery. The primary right of the plaintiff is the right to his own person, free from molestation or interference by any one. This right, being a legal conclusion, is of course not averred. The fact upon which it depends is simply that the plaintiff is a human being, existing and possessing the common faculties and attri- butes of humanity. Since this fact conforms to the universal experience, its averment in the complaint or petition is needless ; it is tacitly assumed ; and tlie pleading consists wholly in state- ments of the wrongful trespass committed by the defendant. Another illustration is the action for slander or libel. The facts upon which the primary right and duty of the parties depend is the existence of the plaintiff as a member of society, and as pos- sessing a character among his fellow-men. Although the com- mon-law declaration contained averments of the plaintiff's repu- tation, they are unnecessary, and the complaint or petition may contain merely an account of the defamatory words spoken or published by the defendant and the other elements of the wrong. It may be stated as a general proposition, that, in actions brought for injuries to the plaintiff's own person or character, the facts which enter into the first branch of the cause of action, and are the occasion whence the primary right and duty of the parties arise, need not be expressly averred ; they are assumed to exist, and nothing but the delict need be alleged. Notwithstanding this abridgment, the pleading in such cases is based upon the same theory and governed by the same rules as the pleading in all other classes of actions. § 526. The second of the general doctrines included within the principle under consideration is, that, in stating the two required , groups of facts, those important and substantial facts alone should be alleged which either immediately form the basis of the primary right and duty, or which directly make up the wrongful acts or omissions of the defendant, and not the details of probative mat- GENEEAL PEINCIPLES OF PLEADING. 571 ter or particulars of evidence by which these material elements are to be established. This doctrine applies to all classes of actions, and if strictly enforced it would render the pleadings simple, and the legal issues at least clear, certain, and single. The courts have been unanimous in their announcement of the rule, and the decisions already quoted, as well as those to be cited in subsequent paragraphs, will show the variety of circum- stances, allegations, and issues to which it has been applied. There can be no real difficulty, if the action is legal, in distin- guishing between the facts which are material and issuable and should therefore be averred, and those which are merely pro- bative or evidentiary and should be omitted. Since the legal primary right and duty are always simple, and demand from the defendant the performance or the omission of some single and well-defined act, they will always depend, for their occasion, upon a few positive, determined, and certain facts, all of which aie necessary to their existence, so that neither of these facts could be modified, and much less could be omitted, without entirely defeating the right and duty, and with them the cause of action itself. The same is true of the facts which make up the defend- ant's delict or wrong. In order, therefore, that any given legal cause of action should exist, in order that any given remedial right or right of action should arise, these determinate, un- changed, and positive elements of fact must all conspire to pro- duce that result, and must be alleged; they literally "constitute" the cause of action, and form the " material " or " issuable " aver- ments spoken of by the courts. The subordinate facts, on the other hand, which make up the probative matter and the details of evidence, may vaiy indefinitely in their nature ; and so long as they perform their function of establishing the " issuable " averments, the cause of action will not be affected. To illustrate by a very familiar example : In an action to recover damages for the breach of a written contract, the allegation that the defend- ant executed the agreement is material and issuable ; it cannot be modified, and much less abandoned, without destroying the whole cause of action. Its denial raises a direct issue, to main- tain or disprove which evidence can be offered. The subordinate probative matter by which this averment is established may vary according to the exigencies of the case, and a resort to or failure with one method will not prevent the use of another. The plain- 572 CIVIL EEMEDIES. tiff might rely upon the defendant's admissions that he executed the paper, or upon the testimony of a witness who saw him sign it, or upon the opinions of persons who are acquainted with his handwriting, and who testify that the signature is his. One or the other, or even all, of these means might be resorted to, and the material fact to be proved would remain the same. If, how- ever, instead of directly averring that the defendant executed the written contract, the plaintiff should allege that the defendant had admitted his signature to be genuine, or that a specified indi- vidual asserts that he saw the instrument signed, or that persons familiar with his handwriting declare the signature to be his, it is plain that neither of these statements would present a material issue ; that is, an issue upon which the cause of action would de- pend. This familiar illustration covers the whole field of legal actions. The allegations must be of those principal, determinate, constitutive facts, upon the existence of which, as stated, the en- tire cause of action rests, so that, when denied, the issue thus formed with each would involve the whole remedial right. Every legal cause of action will include two or more distinct and sepa- rate facts ; and in order that these facts may be issuable, the failure to prove anj' one of them when denied must defeat a recovery. If this fundamental doctrine of the reformed pleading is fairly and consistently enforced in actual practice, the issues presented for trial must necessarily be simple and single. Single- ness and simplicity of issues do not require that the cause should contain but one issue for the jury to decide, one affirmation and denial the determination of which disposes of the whole contro- versy. This result of the common-law special pleading is often described by enthusiastic admirers of the ancient system, but it was seldom if ever met with in the actual administration of jus- tice. The issues are single when each consists of one and only one material fact asserted by the plaintiff and controverted by the defendant, of such a nature that its affirmative decision is essential to the cause of action, while its negative answer defeats a recovery. The reformed theory of pleading contemplates and makes provision for such issues ; and if its provisions are faith- fully carried out, the disputed questions of fact would be as sharply defined, and as clearly presented for decision to juries, as can be done by any other possible method. § 527. The discussion thus far of this particular doctrine has GENERAL PRINCIPLES OF PLEADING. 573 been confined to legal actions ; are any modifications necessary to be made in its statement when applied to equitable suits ? The differences in form between legal causes of action and reme- dies on the one side and equitable causes of action and reliefs on the other have been described, and need not be repeated. By vir- tue of these inherent differences, the material facts which must be alleged in an equitable suit are often, in their nature and effects, quite unlike the '• issuable " facts which constitute a legal cause of action. In the legal action the issuable facts are few ; in the equitable suit the material facts upon which the relief depends, or which influence and modify it, are generally numerous, and often exceedingly so : in the former they are simple, clearly de- fined, and certain ; in the latter they may be and frequently are complicated, involved, contingent, and uncertain. These are mere differences of external form, but there is another much more im- portant, and which more nearly affects their essential nature. The legal cause of action so completely rests for its existence upon the issuable facts, that if any one of them when denied fails to be established by proof, the plaintiff's entire recovery is defeated thereby, a result which is recognized by all the judicial decisions as involved in the very definition of a legal issuable fact. An equitable cause of action may undoubtedly rest in like manner upon a given number of determinate facts. In general, however, as has already been fully explained, facts may exist material to the recovery in a certain aspect, or in a certain con- tingency, or to a certain extent, and which therefore enter into the cause of action, but which are not indispensable to some kind or measure of relief being granted to the plaintiff. These facts if established will determine the character, extent, and complete- ness of the remedy conferred by the court ; but if they are not established, the remedy is not thereby wholly defeated ; it is only in some particulars modified, limited, or abridged. Since these classes of facts assist in determining the nature, amount, and details of the relief to be awarded, they in part at least " con- stitute the cause of action " within the true meaning of the term, and must be alleged. While the material facts of an equita- ble cause of action differ in the manner thus described from the issuable facts of a legal cause of action, the single and compre- hensive principle of the reformed procedure embraces and con- trols both classes of suits. Mere evidence, probative matter as 574 CIVIL KEMEDIES. contradistinguished from the principal facts upon which the re- medial right is based, are no more to be spread upon the record in an equitable than in a legal action. A distinction inheres in the nature of the causes of action, and from this distinction the facts material to the recovery in an equitable suit may be numer- ous, complicated, affecting the right of recovery partially instead of wholly, modifying rather than defeating the remedy if not established ; but still they are the material facts constituting the cause of action, and not mere details of evidentiary or probative matter. § 528. The existence and necessity of this distinction between the material facts to be alleged in legal and equitable actions are fully recognized and admitted by judicial opinions of the highest authority .1 It also prevails, I believe, universally in practice. By no judge has it been more accurately and exhaustively dis- cussed than by Mr. Justice S. L. Selden in two early cases which, although without the binding authority of precedents, have the force of cogent and unanswerable reasoning.^ With the practical conclusions in reference to the nature of the material facts that should be averred in an equitable complaint or petition at which Mr. Justice Selden arrives, I entirely concur ; his course of argu- ment upon which those conclusions are based is the same in sub- stance which has been pursued in the foregoing paragraphs. I wholly dissent, however, from his inference that these results are not contemplated by and embraced within the single and compre- hensive principle announced by the codes, that the facts con- stituting the cause of action, and they alone, must be stated. This inference does not follow from his argument, nor from the final positions which he reaches ; it is whollj' unnecessary ; and it has been rejected by judges who have accepted and main- tained the very doctrines concerning the nature of equitable pleading under the code which he so ably supports. It is onlj' by giving to the phrase "facts constituting the cause of action" a narrow interpretation, which it was plainly not intended to receive, that the material facts of an equitable cause of action can be thus widely separated from the issuable facts of a legal one. Both are aptly described by the phrase which is found in 1 See People v. Ryder, 12 N. Y. 433, 2 Rochester City Bank v. Suydam, 437 ; Horn u. Ludington, 28 Wis. 81, 83 ; 5 How. Pr. 216 ; Wooden v. Waffle, 6 White V. Lyons, 42 Cal. 279, 282. How. Pr. 145. GENERAL PRINCIPLES OF PLEADING. 575 all the codes. The averment of issuable facts in one class of cases, and of the material facts affecting the remedy in the other class, without the details of evidence or probative matter relied upon to establish either, is a necessarj' consequence of the single comprehensive principle which underlies the whole reformed system. § 529. The third and last point remains to be considered in this general discussion. The issuable facts in a legal action, and the facts material to the relief in an equitable suit, should not only be stated to the complete exclusion of the law and the evi- dence, but they should be alleged as they actually existed or occurred, and not their legal effect, force, or operation. This conclusion follows as an evident corollary from the doctrine that the rules of law and the legal rights and duties of the parties are to be assumed, while the facts only which call these rules into operation, and are the occasion of the rights and duties, are to be spread upon the record. Every attempt to combine fact and law, to give the facts a legal coloring and aspect, to present them in their legal bearing upon the issues rather than in their actual naked simplicitj^ is so far forth an averment of law instead of fact, and is a direct violation of the principle upon which the codes have constructed their system of pleading. The peculiar method which prevailed at the common law has been fully de- scribed ; it was undoubtedly followed more strictly and completely in certain forms of action than in others ; in a few instances — as in a special action on the case — the declaration was framed in substantial conformity with the reformed theory. But in very many actions, and those in constant use, the averments were almost entirely of legal conclusions rather than of actual facts. The familiar allegations that the plaintiff had "bargained and sold," or " sold and delivered," that the defendant " was indebted to the plaintiff," or "had and received money to the plaintiff's use," and very frequently even the averment of a promise made by the defendant, may be taken as familiar illustrations from among a great number of other similar phrases which were found in the ordinary declarations. Rejecting as it does the technicali- ties, the fictions, the prescribed formulas, and the absurd repeti- tions and redundancies, of the ancient common-law system, the new pleading radically differs from the old in no feature more important and essential than this, that the allegations must be of 576 CIVIL REMEDIES. dry, naked, actual facts, while the rules of law applicable thereto, and the legal rights and duties arising therefrom, must be left entirely to the courts. While this doctrine has been uniformly recognized as correct when thus stated in an abstract and gen- eral manner, it has sometimes been overlooked or disregarded in passing upon the sufficiency and regularity of particular plead- ings. Whether those decisions which have permitted the com- mon counts to be used as good complaints or petitions, and those which have required the promise implied by law to be expressly averred as though actually made, are in conformity with this doctrine, will be considered in subsequent paragraphs, and the various cases bearing upon the question will be cited and dis- cussed. It is sufficient for my present purpose to state the doctrine in its general form, and to reserve its application for another portion of the chapter. § 530. As the foregoing analysis has been exclusively based upon the text of the codes, I shall now test the correctness of its conclusions, and illustrate the extent and application of its general doctrines, by a reference to the decided cases, following in the arrangement of the subject-matter the order already adopted. The rule that facts alone are to be stated, to the ex- clusion of law and of the legal rights and duties of the parties, has been uniformly accepted by the courts, and has been enforced in every variety of issues and of special circumstances. In a very recent decision, this general doctrine was expressed in the fol- lowing language : " Matter of law is never matter to be alleged in pleading. No issue can be framed upon an allegation as to the law. Facts only are pleadable, and upon them without allega- tion the courts pronounce and apply the law. This is true alike in respect to statutes and to the common law." ^ Among the 1 People V. Commissioners, &c., 54 have, in pleading, admitted the obligation N. Y. 276, 279. The question was as to of the law," and then adds the language the validity of a certain statute. The quoted in the text. See also Common- defendants, in their pleading, had ad- wealth u. Oook, 8 Bush, 220, 224; Clark mitted its validity, and that they were v. Lineberger, 44 Ind. 223, 228, 229. The required by it to do the acts sought to be material, issuable facts, not mere legal or enforced by the action, and had nowhere other conclusions, — as illustrations see raised any objection on the record. The Pittsburgh, &c. R. R. u. Keller, 49 Ind. adverse party claimed that this admission 211; Tronson v. Union Lumber Co., 38 precluded the defendants from raising the Wis. 202; Page v. Kennan, 38 id. 320; question at the argument. Johnson J. Surginer v. Paddock, 31 Ark. 528; Schil- said : " The objection to its [this ques- ling v. Rominger, 4 Col. 100 ; Clay Co. v. tion] being raised is that the defendants Simonaon, 1 Dakota, 403, 430 ; Scott v. GENERAL PKINCIPLES OF PLEADING. 577 allegations which have been condemned as legal conclusions, and for that reason as forming no material issue, and wliich have been rejected as failing to state any element of a cause of action, the following are given as illustrations : In an action to dissolve a partnership, for an accounting, &c., the averment that on a day named, and for a long time previous thereto, the defendant and the plaintiffs " were partners doing business under the firm name of T. & C. ; " ^ in an action to restrain the removal of a county seat under a statute which was claimed to be special and there- fore void, the allegation that " said act is a special law in a case where a general law of uniform operation throughout the State exists, and can be made applicable ; " ^ in an action apparently to recover damages for the wrongful interference with the plain- tiff's possession of certain land, the averment that the plaintiff "was entitled to the exclusive possession of " the premises in question ; ^ in an action against a subscriber to the stock of a cor- poration to be organized, brought to recover the amount of his subscription, an averment that the " company was legally or- ganized, into which organization the defendant entered," * Robards, 67 Mo. 289 ; Botey v. Griswold, 2 Mont. 447 ; Peterson v. Roach, 32 Ohio St. 374 ; Pittsburgh, &c. R. R. v. Moore, 33 id. 384 ; Scott v. B. & S. W. R. R., 52 Iowa, 18 ; Cooper v. French, 52 id. 531 ; Ockenden v. Barnes, 43 id. 615; North Kansas, &c. Co. v. Oswald, 18 Kans. 386 ; Sheridan v. Jackson, 72 N. Y. 170, 173 ; Stack v. Beach, 74 Ind. 571 ; Leach v. Rhodes, 49 Ind. 291 (in action on a con- tract a general averment that there was a full and valuable consideration, is a mere conclusion of law, and not sufficient ; sed qu. is not this the issuable allegation of fact ? ) ; Moore v. Hobbs, 79 N. C. 535 ; Estate of David Gharky, 57 Cal. 274; Payne v. McKinley, 54 id. 532. The complaint need never anticipate any de- fences which may be set up in the an- swer, nor contain allegations to meet them. Caflin o. Taussig, 7 Hun, 223; Metrop. Life Ins. Co. v. Meeker, 85 N. Y. 614 ; Cohen v. Continental Life Ins. Co., 69 id. 300, 304 ; Roth v. Palmer, 27 Barb. 652; Kayser v. Sichel, 34 id. 89; Bliss V. Cottle, 32 id. 822 ; Wygand v. Sichel, 3 Keyes, 120. 1 Groves v. Tallman, 8 Nev. 178. A general demurrer to the complaint was sustained, the court holding that this alle- gation was a mere conclusion of law, and that the executed agreement of partner- ship should have been set forth. The decision, as it seems to me, is entirely wrong : the plaintiff had stated the is- suable fact, while the court demanded the evidence : there may have been no written contract of partnership. See Kelsey v. Henry, 48 Ind. 37, which fully sustains the views expressed in this note. 2 Evans v. Job, 8 Nev. 322, the court further holding that, when the complaint alleges a mere conclusion of law, no answer to such allegation is necessary. 3 Garner v. McCullough, 48 Mo. 318. The petition did not state that the plain- tiff was or had ever been in possession, and failed to disclose the nature of his claim or the source of his right, the alle- gation quoted being the sole assertion of a right in the land. It was held that no cause of action was stated, and all evi- dence should be excluded at the trial, although the defendant had answered. * Hain v. North West. Gravel R. Co., 41 Ind. 196. This averment was held to 87 578 CIYIL REMEDIES. § 531. Also, in an action to recover on a policy of fire insur- ance, by the terms of which the sum assured did not become payable until certain acts had been done by the plaintiff as con- ditions precedent, an averment merely " that the whole of said sum is now due ; " ^ in an action to restrain the collection of a tax on the plaintiff's land, an allegation that the land " is by the laws of the State exempt from taxation ; " ^ in a suit to recover a stock subscription to a corporation, an allegation that the party became a subscriber to the capital stock " by signing and delivering " a specified agreement ; ^ an allegation " that the title of the plaintiff to said lots by virtue of said tax sale is invalid, from an irregu- lai'ity in the notice of such tax sale ; " * in an action to set aside a judgment for a tax, an allegation " that no notice was given of the said proceedings, or any of them," which resulted in the tax ; ^ in an action brought to recover land claimed by inheritance from a former owner, the allegation that the plaintiff was " one of the heirs of" such former owner ; ^ in an action on a contract where the defendant's liability depended upon the performance of cer- tain conditions precedent by a third person, the mere allegation, without stating any performance by such person, that " the de- fendant neglected and refused " to perform the stipulated act on his part " according to the terms of said agreement." ^ The law of another State or country, however, is regarded, for purposes of have raised no issue, citing Indianapolis, 254, 258. In an action against tlie com- &c. R. R. V. Robinson, 35 Ind. 380. pany, it set up the demand mentioned in 1 Doyle V. Phcenix Ins. Co., 44 Cal. the text as a set-off or counter-claim, al- 264, 268. The court having decided that leging the plaintiff's liability in the man- the complaint did not sufficiently aver a ner described. A judgment in favor of performance of the conditions precedent the defendant was reversed, because there by the plaintiff, and so failed to state a was no averment in the answer which cause of action, added : " The allegation made out a cause of action, citing Barron that ' the sum is now due ' may be laid v. Frink, 30 Cal. 486 ; Burnett v. Stearns, out of tlie case, inasmuch as tliat is a 33 Cal. 473. conclusion of law merely." 4 -^Vebb v. Bidwell, 15 Minn. 479, 485. 2 Quinney v. Stockbridge, 33 Wis. 505. 6 stokes v. Geddes, 46 Cal. 17. There was no other statement showing 6 Larue v. Hays, 7 Bush, 50, 53. This that the land was exempt ; and, in order allegation was held not to be admitted that it should be so, certain special cir- by a failure to deny it, citing Banks v. cumstances must have existed. The Johnson, 4 J. J. Marsh. 649; Currie v. averment was held to be of no force what- Fowler, 5 J. J. Marsh. 145. ever, unless accompanied by allegations ' Wilson v. Clark, 20 Minn. 367, 369. of the proper facts ; and a preliminary This was declared to be a mere conclu- injunctlon was therefore dissolved upon sion of law ; and as no facts were stated the complaint alone. from which it could be inferred, it was a 8 Wheeler v. Floral Mill Co., 9 Nev. nullity. GENERAL PRINCIPLES OF PLEADING. 579 pleading, as matter of fact, and must be averred with so much distinctness and particularity that the court may, from the state- ment alone, judge of its operation and effect upon the issues pre- sented in the cause. Thus, in an action upon a note executed and made payable in Illinois, the allegation, " that by the law of Illinois the defendant was indebted to the plaintiff in the amount of such note," was held insufficient to admit evidence of what the Illinois law is in reference to the subject-matter.^ In Indiana the averment, that the defendant " is indebted " to the plaintiff in a specified amount, is held to be sufficient. This ruling, however, is not based upon the general principles of pleading announced by the codes, but upon certain short forms authorized by the legis- lature, which were copied from the ancient common counts in assumpsit.^ Examples similar to the foregoing might be indefi- nitely multiplied ; but these are sufficient to illustrate the action of the courts, and to show how firmly they have adhered to the doctrine that facts, and not law, must be alleged, and that the averments of legal conclusions without the facts from which they have arisen form no issues, state no causes of action, admit no evidence, and do not even support a verdict or judgment, — in short, that they are mere nullities. § 532. Pursuing the order before indicated, the following cases will explain and illustrate the second doctrine that the principal, material, and issuable facts must be pleaded, and not the details of evidentiary or probative matter from which the existence of the final facts is inferred. The language emploj-ed by the court in an action brought to restrain the execution of tax deeds of the plaintiff's land, on account of illegality in the proceedings, fur- nishes a very instructive example of such averments : " The plaintiff relied upon the absence of preliminary proceedings essen- tial to the validity of the tax sales. But instead of averring, either of his own knowledge or upon information and belief, that such 1 Roots V. Merri wether, 8 Bush, 397, = Johnson v. Kilgore, 39 Ind.^ 147. 401. As a foreign law is a matter of fact, Tliese statutory forms, in my opinion, the court does not talje judicial notice of violate the funrlamental principles of it, and if different from that of the forum, pleading adopted by the reformed pro- and if it must be invoked in order to cedure, more so even than the ancient make out the cause of action, the par- common counts. This question will be ticular doctrine or rule relied upon must particularly examined in a subsequent be fully and accurately stated in the paragraph, pleading. See Woolsey v. Williams, 34 Iowa, 413, 415. 580 CIVIL REMEDIES. proceedings were not had, he only averred that he had searched in the proper offices for the evidence that they were had, and failed to find it. The only issue that could be made upon such an allegation would be whether he had searched and found the evidence or not, which would be entirely immaterial." ^ In plead- ing certain classes of issues, it is undoubtedly difficult sometimes to discriminate between the final facts and the probative matter. This is especially true in charging fraud, which must almost inva- riably consist of many different circumstances, some affirmative and some negative ; but the rule should nevertheless be applied. " It is not necessary nor proper for the pleader to set out all the minute facts tending to establish the fraud ; the ultimate facts, and not the evidence, should be pleaded." ^ An allegation of mere evi- dentiarj' matter, and not an ultimate or issuable fact, is surplus- age ; it need not be controverted, and is not admitted by a failure to deny. As was said in a recent decision, " the matter averred is not an ultimate fact ; that is to say, a fact which is required to be stated in a complaint, and which, if not denied by the answer, would stand as admitted ; but it is merely matter of evidence which might be stricken out of the complaint." ^ If in addition to the issuable or material facts the pleading also contains the details of evidence tending to establish them, these latter aver- ments should be stricken out on motion as surplusage.* There is a class of allegations which are necessar}', but which are not 1 Rogers .;. Milwaukee, 13 Wis. 610, 3 Gates v. Salmon, 46 Cal. 361, 379. 611. If the plaintiff had alleged that the See also, as further illustrations. Clay proceedings in question had been omitted, Co. v. Simonson, 1 Dacota, 403, 430 ; the facts stated by him would have been Scott o. Robards, 67 Mo. 289 ; Terry v. proper evidence in support ot the aver- Musser, 68 id. 477 ; Cook v. Putnam Co., ment. This case exhibits very dearly the 70 id. 668 ; Kansas Pac. R. R. v. McCor- distinction between the ultimate issuable mick, 20 ' Kans. 107 ; Harris v. Hillegass, fact which cannot be changed in order 54 Cal. 463 ; Elder v. Spinks, 53 id. 293 ; to make out a given cause of action, and Dambman v. White, 48 Id. 439 ; Schilling the probative matter by which such fact v. Rominger, 4 Col. 100 (mode of allega- is established, and which may vary ac- tion in equitable actions). The complaint cording to the exigencies of the case. Of need not anticipate and meet expected course the omission of the preliminary defences. Claflin v. Taussig, 7 Hun, 223, proceedings must be proved, but it could and cases cited ; Metrop. Life Ins. Co. v. be proved by many different kinds of Meeker, 85 N. Y. 614; Cohen v. Conti- evidence. This distinction is a certain nental L. Ins. Co., 69 id. 300, 304. test by which to determine whether any « King v. Enterprise Ins. Co., 45 Ind. given fact is issuable and material, or is 43 ; Van Schaick v. Farrow, 25 Ind. 310 ; only probative. Lytle v. Lytle, 37 Ind. 281. 2 Cowin V. Toole, 31 Iowa, 513, 516 ; Singleton v. Scott, 11 Iowa, 589. GENERAL PRINCIPLES OF PLEADING. 581 issuable in the ordinary meaning of tliis term as already defined, — that is, the cause of action is not defeated by a failure to prove them as averred, and an omission to deny them does not admit their truth, but still they must be stated, and a complaint or peti- tion would be insufficient, or at least incomplete, without them. This class includes in general the statements of time, place, value, quantity, amounts, and the like ; although, under peculiar cir- cumstances, the allegation of any one of these matters may be- come in every sense of the term issuable and material. Ordinarily, however, this is not so. The rule thus given prevailed in the common-law pleading, and has not been changed by the new pro- cedure. Thus, for example, in an action for the conversion of chattels, the statement of their value is not issuable ; failure to deny does not admit its truth, nor exclude evidence as to the real value. ^ § 533. The decisions which follow in this and one or two sub- sequent paragraphs are cited in order to furnish some examples of allegations which have been judicially tested and pronounced sufficient or insufficient, as the case may be. A few such par- ticular instances will better illustrate the general doctrine of the codes, and will more clearly explain the requisite form and nature of issuable and material averments than can be done by any other method, either of description or of argument. In an action upon a guaranty of a note, the objection was raised by the defendant that the complaint failed to state any cause of action. It set out a note payable to the defendant which fell due October 1, 1867, and alleged " that on the 9th of October, 1867 [after jt was due], the defendant, for value received, transferred said note to the plaintiff, and then and there guaranteed the payment thereof by his written guaranty, indorsed thereon as follows : ' For value received, I hereby guarantee the payment of the within note when due, October 9, 1867 ; ' and although said note became due and payable before the commencement of this action, yet the said makers of said note, nor the said defendant, have paid the same, nor any part thereof ; that the plaintiff is the owner and holder," &c., stating the amount due, and making the usual demand of judgment. The defendant claimed that the complaint did not state a cause of action because it failed to allege that the amount due is due on the note and guaranty or on the guaranty, 1 Chicago, &c. R. K. v. N. W. Union V. Co., 38 Iowa, 377, 382. 582 CIVIL REMEDIES. or from the defendant to the plaintiff, and failed to allege that the maker had not paid the note ; also because the guaranty being executed after the note became due, and stipulating payment wAen due, is impossible and void. After disposing of the last objection by holding that the guaranty was payable at once, the court, by applying the rule of favorable construction prescribed by the code, pronounced the complaint sufficient.^ In an action against a railroad company for killing the plaintiff's horses, which had strayed upon the track and been run over, the only negligence charged upon the defendant at the trial was in reference to its construction and maintaining of its fences through which the animals escaped and reached the track. The sole allegation of the complaint was that the defendant " so carelessly and negli- gently ran and ma.naged the said locomotive and cars, and the said railroad track, grounds, and fences, that its said locomotive and cars ran against and over the said horses." It was not even stated that the animals escaped through the fences. In pro- nouncing upon the sufficiency of this averment, it was said by the court that the best possible construction for the plaintiff which could be put upon the language was " that the defend- ant so negligentl}'^ managed the fences that its train ran over the horses," and that, even under the liberal rule prescribed by the codes, this could not be taken as alleging a cause of action for negligently constructing the fences, or suffering them to be out of repair, so that the animals escaped through them on to the track.^ § 534. In an action for trespass to land, the petition stated that " plaintiff by virtue of a contract with one E. was entitled to the exclusive possession of" the premises, "that subsequently to this contract the premises were purchased by the defendant 1 Gunn u. Madigan, 28 V\^is. 158, 163, that it is a good pleading. It sets out the 164. Tlie opinion of tlie court, after contract and the alleged breach thereof, stating the positions of the defendant's the interest of the plaintiff and the lia- counsel proceeded : " The rule prac- bility of the defendant, and demands the tically applied by him is, that a pleading proper judgment. Ought we to demand must be construed most strictly against more ■? " The only real defect of the the pleader. He seems to have forgotten pleading is, that, from the grammatical that this stern rule of the common law is construction of a single clause, it does not repealed by the code, and in its place a allege that the note was not paid. " Yet more beneficent one has been enacted, the said makers of said note, nor the Looking at the complaint in the light of said defendant, have paid the same." It this new rule, it seems to us that it states is thus made to aver that the makers have a cause of action. Indeed, we are not paid it. quite sure that it is necessary to invoke 2 Antisdel v. Chicago & N. W. R. R., the aid of that rule to enable us to hold 26 Wis. 145, 147. GENERAL PKINCIPLES OF PLEADING. 583 with knowledge of the plaintiff's rights, that the defendant forci- bly took possession and excluded the plaintiff," but did not allege that the plaintiff was ever in possession, nor the relation •which E. bore to the land, nor the terms of the contract with him, nor that defendant's acts were wrongful. This petition, it was held, stated no cause of action, and was properly dismissed at the trial.^ In an action to foreclose a mortgage of land, the plaintiff obtained a preliminary injunction to restrain the removal of machinery which had been so affixed to the land as to become part of the freehold. A motion was made on the pleadings to dissolve the injunction on the ground that the complaint contained no allega- tions which could be made the basis of that relief. The clause relied upon by the plaintiff was the following : That the defend- ants had erected on the premises a manufacturing establishment, " and put therein machinery which had become part and parcel thereof," and that " among other machinery which they put therein was a steam-engine," &c., enumerating other articles. This was held to be a sufficient averment that the engine, &c., had become part of the realty. If the defendants desired a more explicit allegation they should have moved for that purpose, the manner of raising the objection which they had adopted being tantamount to a demurrer for want of sufficient facts.^ The com- plaint, in an action on a note against the maker and indorsers, alleged several successive indorsements until it was thus indorsed and transferred to one M., but omitted to state an indorsement and transfer from him to the plaintiff. It contained, however, the following averment, "that the plaintiff is now the lawful owner and holder of the said note, and the defendants are justly indebted to him thereon," &c. This was held to be a sufficient statement of the plaintiff's title ; the defect, if any, was one which should be cured by motion to make the pleading more definite and certain.^ The material portion of the complaint in an action for work and labor simply stated that the plaintiff per- formed work " for the defendant at an agreed price of $26 per 1 Garner v. McCullough, 48 Mo. 318. would not defeat the cause of action ; it 2 Kimball v. Darling, 32 Wis. 675, 684. would simply modify and limit the amount The allegation in question is an admira- of relief to he obtained by the plaintiff ; ble illustration of the distinction between but it was certainly a necessary allegation facts material to the remedy in equity for that purpose. suits and issuable facts in legal actions. ' Reeve v. Fruker, 32 Wis. 243. A failure to prove this special averment 584 CIVIL KEMEDIES. month." It was objected on demurrer that no request on the part of the defendant was alleged, but the pleading was held to be sufficient under the rule of construction adopted by the codes.^ In an action on a town treasurer's official bond, the complaint, after setting out the bond, averred the breach thereof in the fol- lowing manner, simply negativing the conditions: "He has not duly and faithfully performed the duties of his office, and has not faithfully and truly accounted for and paid over according to law all the state and county taxes which came into his hands ; " but it did not allege that any such taxes had ever come into his hands. This complaint was pronounced fatally defective on demurrer, as the facts constituting the breach should have been pleaded.2 § 535. The petition in an action against H. as maker and C. as indorser of a note set out the note made by H. payable to bearer and a guaranty thereon, " I guarantee the payment of the within note to C. E. [the plaintiff] or order," signed by C, and added : "The defendant H. is liable on said note as maker, and the defendant C. as indorser and guarantor. The plaintiff C. E. is the holder and owner of said note. There is due from the defend- ants to the plaintiff on said note the sum of," &c. On demurrer by the defendant C, he was held to be absolutely liable as a guarantor, and that under the liberal rule of construction the allegations of the complaint imported a cause of action, and were sufficient.^ In an action by the vendee for fraudulent represen- tations made on a sale, the complaint must allege that the plain- tiff relied upon them ; and the absence of such an averment will not be supplied by a statement of mere evidentiary matter tending to show the existence of that material fact, unless the evidence so stated is conclusive.* In an action brought to recover damages 1 Joubert v. Carli, 26 Wis. 594, per C. was absolutely liable as a guarantor, Paine J. : " The allegation that one has added that the allegations above stated performed work for another at an agreed implied a transfer of tlie note from him price per month or per day, must be to the plaintiff, and a consideration by held to fairly import that the agreement means of such transfer. C. is thus shown was prior to the performance of the work, to be an indorser, and is, as it appears, and that the work was done in pursuance therefore held liable as a guarantor. This of it." decision, in my opinion, cannot be sup- 2 Wolff V. Stoddard, 25 Wis. 503, 505 ; ported on principle. It is such ruling as Supervisors v. Kirby, 25 Wis. 498. Dixon this that destroys the scientific character C. J. dissented in both cases. and usefulness of the reformed system, ' Clay V. Edgerton, 19 Ohio St. 549. and tends to bring it into discredit. The court, after stating that the defendant * Goings w. White, 33 Ind. 125. This GENERAL PRINCIPLES OF PLEADING. 585 for the conversion of chattels, the complaint was substantially as follows ; That the plaintiff was on, &c., the owner of certain chattels ; that he leased them to one S. bj'^ a written lease, in which he reserved the right to take possession of them, and to terminate the letting, whenever he should deem himself unsafe, or that the chattels were not well taken care of; that S. took possession under the lease ; that the defendant, who is a United States marshal, seized them while thus in the possession of S. under a process in bankruptcy against S. ; that plaintiff demanded them from the defendant, who refused, &c. ; that the plaintiff demanded the possession from the defendant " on the ground that the plaintiff deemed himself unsafe, and did not think that the property was well taken care of;" and that the defendant had converted the same to his own use. The complaint did not con- tain any further or more express statement that the plaintiff did as a matter of fact deem himself unsafe. A demurrer for want of facts was sustained, and the pleading was held insufficient because it did not show a right of possession in the plaintiff when the action was brought, in that it failed to allege any fact enti- tling him to terminate the letting, and to resume possession of his property.! The petition in an action for conversion alleged that the defendant " had in his possession, and under his control, $5,000 in money, and $10,000 in hardware, stoves, &c., of the money and property owned by the plaintiff," and converted the same. This was declared, on a motion to make the petition more definite and certain, to be a sufficient averment that the money and goods were the property of the plaintiff.^ If an action is brought on a bail bond given in a criminal proceeding, the com- plaint should allege that the person was released from custody upon the execution and delivery of the undertaking, and a plead- decision assumes that, although in ac- i Hathaway v. Quinby, 1 N. Y. S. C. cordance with the general doctrine, the 386. The construction given to the corn- principal fact and. not the evidence of it plaint in this case was certainly severe should be pleaded, yet a statement of the and technical, and hardly in accordance evidence may under certain circumstances with the rule laid down in the code. The be sufficient to raise a substantial issue, objection is for incompleteness and in- If the principal fact be not alleged, but definiteness of the allegation. The plain- the details of evidence are given, and tiff certainly does state, althougli perhaps these are positive and conclusive in their in a partial manner, that he deemed him- nature, the pleading will not be bad on self unsafe. A motion was certainly more demurrer, although it will be subject to appropriate than a demurrer, amendment on a motion to make it more ^ Sturman o. Stone, 31 Iowa, 115. definite and certain. 586 CIVIL KEMEDIES. ing omitting this statement was held bad.^ Where a tender is essential to the plaintiff's cause of action, the complaint must either aver it in express terms, or must state a sufficient excuse for omitting it. In such a case the plaintiff alleged " that he has been ready and willing during all the time aforesaid, and has offered, to accept and take said conveyance, and to pay the balance of said purchase-monej'." This averment was pronounced to be insufficient, and the complaint was held bad on demurrer, as it neither stated a tender, nor an excuse for not making a tender.2 In actions brought to recover damages, an allegation that damages have been sustained is indispensable. As was said by the Supreme Court of California in a late decision, "it is not alleged in the complaint that the plaintiff has sustained damages, and therefore he is not entitled to judgment for damages." ^ ^ Los Angeles County v. Babcock, 45 Cal. 252. 2 Englander o. Rogers, 41 Cal. 420, 422. 8 Bohall !>. Diller, 41 Cal. 532. See also Bradley u. Aldrich, 40 N. Y. 504, and supra, § 84, note 3 ; and comp. Graves V. Spier, 58 Barb. 349, supra, § 81, note 2. The following cases furnish illustrations of allegations held to be sufficient or in- sufficient in a variety of ordinary actions : of fraud, Smith v. Nelson, 62 N. Y. 286 ; Jones V. Frost, 51 Ind. 69 ; Arnold v. Baker, 6 Neb. 134 ; Nicolai v. Lyon, 8 Oreg. 56 ; Lafever v. Stone, 55 Iowa, 49 ; Ockenden v. Barnes, 43 id. 615 ; Pence v. Croar, 51 Ind. 329; Hess v. Young, 59 Ind. 379 ; Sacramento Savings Bank v. Hynes, 50 Cal. 105; oi negligence, defend- ant's, Pittsburgh, &c. R. R. v. Nelson, 51 Ind. 150 ; St. Louis, &c. R. R. v. Mathias, 50 id. 65 ; plaintiff's, Higgins v. Jefferson- ville, &c. R. R., 52 id. 110 ; Toledo, &c. R. R. V. Harris, 49 id. 119 ; Hathaway v. Tol- edo, &c. R. R., 46 id. 25 ; Jefferson ville, &c. R. R. V. Bowen, 40 id. 545; Lafayette, &c. R. R. 0. Huffman, 28 id. 287 ; Higley V. Gilmer, 3 Mont. 90 ; in slander and libel, Roberts v. Lovell, 38 Wis. 211 ; Hanning V. Bassett, 12 Bush, 361 ; of damages, Argotsinger v. Vines, 82 N. Y. 308 ; Fer- guson V. Hogan, 25 Minn. 135 ; Johnson V. C. R. I. & P. R. R., 50 Iowa, 25 ; Comer v. Knowles, 17 Kan. 436 ; India- napolis, &c. R. R. K. Milligan, 50 Ind. 393 ; actions on express contracts, perform- ance of conditions, Preston v. Roberts, 12 Bush, 570; Avferbeck v. Hall, 14 id. 505; Andreas v. Holcombe, 22 Minn. 339; Livesey v. Omaha Hotel Co., 5 Neb. 50; Estabrook v. Omaha Hotel Co., 5 Id. 76 ; Lowry v. Magee, 52 Ind. 107 ; Rhodes u. Alameda Co., 52 Cal. 350 ; work and ma- terials, Stephenson v. Ballard, 50 Ind. 176; Wolf V. Scofield, 38 id. 175; the consideration, Leacli v. Rhodes, 49 id. 291 ; a written instrument, Waukon, &c. R. R. V. Dwyer, 49 Iowa, 121; Brown v. Champlin, 66 N. Y. 214, 218 ; Pettit v. Hamlyn, 43 Wis. 314 ; non-payment, Roberts v. Treadwell, 50 Cal. 520; in- debtedness, Town of Pine Valley v. Town of Unity, 40 Wis. 682 ; of a partnership, Stix V. Matthews, 63 Mo. 371 ; Kilsey v. Henry, 48 Ind. 47 ; for obtaining an injunc- tion, Wells, Fargo, & Co. v. Coleman, 53 Cal. 416 ; Boehme v. Sume, 5 Neb. 80 ; Thorn v. Sweeney, 12 Nev. 251 ; Portland V. Baker, 8 Oreg. 356 ; of time, Balch v. Wilson, 25 Minn. 299 ; Luby v. Ashland, &c. Co., 49 Wis. 165 ; in miscellaneous cases, Calvin v. Duncan, 12 Bush, 101 (action on vendor's lien) ; Mitchell v. Mitchell, 61 N.Y. 398 (of adultery); Rhodes v. Ala- meda Co., 52 Cal. 350 (against a county) ; Wiebbold v. Hermann, 2 Mont. 609 (name of party) ; Orr W. Ditch Co. v. Larcombe, 14 Nev. 63 (in interpleader) ; Brown t>. Taylor, 9 Hun, 155 (against a married woman) ; Horn v. Chicago, &c. R. R., 38 ALLEGATIONS OF IMPLIED PROMISES. 587 § 536. The cases contained in the last three paragraphs, and from which quotations have been made, were not selected as examples of proper pleading according to the principles estab- lished by the reformed procedure ; on the contrary, most of those which were sustained by the courts escaped condemnation only by applying the liberal rule of construction prescribed in the codes. These decisions are given rather to show how far a plead- ing may disregard the requirements as to form and method, and may violate all the principles of logical order and precision of statement, and may yet be held sufficient on general demurrer, because the material facts constituting a cause of action can be discovered among the mass of confused or imperfect allegations. The principles and doctrines of pleading adopted and enforced by the courts are illustrated and explained by such examples as these, but the cases themselves are to be carefully avoided as precedents. The mode of correcting imperfect and insufficient averments as distinguished from those which state no cause of action, and the liberal rule of construction introduced by the code, will form the subject of a separate and careful discussion in a subsequent portion of this chapter. § 537. In considering the third general doctrine developed in the preceding analysis, — namely, that the facts pleaded should be stated as they actually occurred or existed, and not their mere legal aspect, effect, or operation, — two practical questions are presented, and the discussion will be mainly confined to them. These questions are, (1) whether in actions based upon the com- mon-law notion of an implied contract the pleader should simply allege the facts as they really occurred from which the legal duty Wis. 463 (a private statute) ; Pittsburgh, contract, Partridge u. Blanohard, 23 Minn. &c. R. R. V. Tlieobald, 51 Ind. 239 69 ; Usher v. Heatt, 18 Kan. 195 ; onprom- (against a railroad for injury to a passen- issort/ notes, Adams o. Adams, 25 Minn. ger) ; Crawford v. Neale, 56 Cal. 32 (a 72 ; Harris Man. Co. «. Marsli, 49 Iowa, guardian ad litem). Tlie following cases 11 ; Abiel v. Harrington, 18 Kan. 258 ; furnish examples of complaints or peti- Durland v. Pitcairn, 51 Ind. 426 ; Green tions in some common species of actions v. Southain, 49 id. 139 ; Friddle v. Crane, which have been sustained; in ejectment, 68 id. 583; in libel or slander, Cary i\ Al- Sears v. Taylor, 4 Col. 38 ; Johnston o. len, 39 Wis. 481 ; Stern v. Katz, 38 id. Pate, 83 N. C. 110 ; Thompson o. Wolfe, 6 136 ; Frank v. Dunning, 38 id. 270 ; Lip- Oreg. 308 ; Bentley o. Jones, 7 id. 108 ; prant v. Lipprant, 52 Ind. 273 ; Shigley Austin y. Sehluyster, 7 Hun, 275; /or a i>. Snyder, 45 id. 641; Downey w. Dil- conversion, Womble v. Leach, 83 N. C. Ion, 52 id. 442 ; Dorsett v. Adams, 50 id. 84 ; Johnson v. Oreg. Nav. Co., 8 Id. 35 ; 129 ; Schurick v. Kollman, 50 id. 336 ; in Pease v. Smith, 61 N. Y. 477 ; Johnson v. replevin, Crawford v. Furlong, 21 Kan. Ashland Co., 44 Wis. 119 ; fur breach of 698 ; Zitske v. Goldberg, 38 Wis. 216. 588 CIVIL EEMEDIES. arises, without averring a promise which was never made, or whether he must or may, as in the common-law assumpsit, state a promise to have been expressly made which is the legal effect or operation of those facts ; and (2) whether the ancient com- mon counts, or allegations substantially identical therewith, fulfil the requirements of the new procedure, and can be used, in con- formity with its fundamental principles, as complaints or peti- tions in the classes of actions to which they would have been appropriate under the former system. I shall take up these questions separately, first collecting and comparing the deci- sions bearing upon each ; and, secondly, discussing them upon principle. § 538. (1) Whether in actions upon implied contract it is necessary or proper to allege a promise as made by the defend- ant. There is a marked unanimity of opinion among the deci- sions which directly involve this question, since most of them accept the language of the codes, and fully recognize the radical change in principle effected by the reformed procedure. In Farron v. Slierwood,' after sustaining a complaint substantially a general count in assumpsit for work and labor without any averment of a promise by the defendant, the New York Court of Appeals said : " It is not necessary to set out in terms a promise to pay ; it is sufficient to state facts showing the duty from which the law implies the promise. That complies with the requirement that facts must be stated constituting the cause of action." This language was not a mere dictum ; it was absolutely essential to the judgment, since the complaint contained no averment of a promise, and was nevertheless held sufficient. The decision must therefore be regarded as settling the doctrine for that State. In another action to recover compensation for work and labor, where the complaint stated various services performed by the plaintiff from which it was claimed a duty on the part of the defendant arose, but alleged no promise by him, the Supreme Court of New York adopted the same rule of pleading.^ On the other hand, 1 Farron v. Sherwood, 17 N. Y. 227, 2 Cropsey v. Sweeney, 27 Barb. 310, 230. See also Mackey v. Auer, 8 Hun, 312, per Sutherland J., who delivered the 180 ; De la Guerra v. Newhall, 55 Cal. following opinion : " Although the form 21; Moore i'. Hohbs, 79 N. C. 535; Jones of the action of assumpsit, and of the V. Mial, 79 id. 164 ; Emslie i'. City of pleadings therein, has been abolished, yet Leavenworth, 20 Kan. 562 ; Stephenson the obligation of contracts and the dis- V. Ballard, 50 Ind. 176. tinction between an express and an im- ALLEGATIONS OF IMPLIED PEOMISES. 589 the Supreme Court of Wisconsin said by way of a dictum in an early case : " Good pleading requires that a promise which the law implies should be stated."^ And in an action for services alleged in the petition to have been performed at the request of an agent of the defendant, the Supreme Court of Missouri held that either the promise must be averred, or the facts from which a promise will be inferred as a matter of law.^ In Montana, the rule is distinctly established that the facts from which the prom- ise is inferred should be pleaded, and not the promise itself; but that in an action on an express promise it must be alleged.^ The Supreme Court of Indiana has held with evident reluctance that in such a case it is not necessary for the partj' to aver a promise, and that it is enough for him to state the facts from which the law implies it. The court added, however, after this concession, that it is better in all cases to allege a promise, saying : " It is always good pleading to state the legal effect of the contract whether it is written or oral."* And in another case, where the action was brought for the value of goods sold, &c., the same court, while passing upon the sufficiency of a complaint which was substantially in the form of an old common count without a request or a promise averred, \ised the following language : " In all these instances the law implies the promise from the facts stated, and our statute simply requires the statement of facts ; and if upon these facts the law implies a promise, the complaint would be good.''^ § 539. The question was discussed by the Supreme Court of plied assumpsit remain ; and notwith- case ; but facts sufficient to raise it, and standing the code, in a large class of to put it on paper were it lawful to do so, cases now as before tlie code, it is only on are still necessary." Ho goes on to hold the theory of an implied assumpsit, in- that the special facts alleged in the com- ferred from the conduct, situation, or plaint raise no implied promise, mutual relations of the parties, that jus- i Bird v. Mayer, 8 Wis. 362, 367. tice can be enforced, and the performance This remark was entirely obiter. The of a legal duty compelled. It is no longer question before the court was, whether a necessarj', and perhaps not even proper, in warranty sued on was express or implied, such a case,fort]ie plaintiff to allege in his 2 Wills v. Pacific R. B., 35 Mo. 164. complaint any promise on the part of the The allegation of a performance at the defendant, but he must state facts which, request of an agent of the defendant was if true, according to well-settled principles insufficient, being matter of evidence only. of law, would have authorized him to ^ Higgins v. Germaine, 1 Mont. 2.30. allege, and the court to infer, a promise on * Wills v. Wills, 34 Ind. 106, 107, 108. the part of the defendant before the code. See the opinion quoted at large, stipra, The form of assumpsit is no longer neces- § 617, note, sary, nor perhaps even proper, in such a * Gvvaltney v. Cannon, 31 Ind. 227. 590 CIVIL REMEDIES. New York! in a very recent decision ; and the importance of the case, and the positions taken in the opinion, make it necessary to quote from the judgment at some length. The complaint con- tained two counts. The second was for money had and received to the plaintiff's use. The first set out the facts in detail, stating a liability which might be considered as resulting from the tortious acts of the defendant, or might be regarded as arising from an implied contract, but omitting to aver any promise. The defendant demurred on the ground that two causes of action had been improperly joined, one on contract, and the other for a tort, — an injury to property. The plaintiff, in answer to this position, claimed that he could elect under the circumstances to sue either for tort or on contract, and that the first cause of action should be treated as of the latter kind, so that there was no misjoinder. The court, however, entirely rejected this claim ; and after stating that the ancient assumpsit and case were in many instances concurrent remedies for injuries to personal property; that in assumpsit the pleader must alwa3's have alleged that the defendant "undertook and promised," &c., and a breach of that promise, while in case the declaration was sub- stantiall}' the same except that the allegation of an undertaking and promise was omitted ; that in the first count this averment is wanting, and " it is therefore a count in case,'^ — proceeded as fol- lows ; " If the plaintiff is right in supposing that the law implied a promise by the bank not to satisfy the judgment after it was assigned to him, he was bound to allege that the bank under- took and promised not to satisfy, &c., in order to make it a count on contract The codifiers, while proposing to abolish the distinction between forms of action, found it impossible or im- practicable in many cases to effect that object ; and this case illus- trates their failure in at least one class of cases. When case and assumpsit were at the common law concurrent remedies, the form of action that the pleader selected was determined, as I have shown, by the insertion or omission from the declaration of the allegation that the defendant » undertook and promised.' This right of selection remains ; and whether the action is tort or assumpsit must be determined by the same criterion. If this is not so, then the right of election is taken away. If taken away, which of the two is left ? An action on contract cannot be joined with one in tort. How are we to determine whether the ALLEGATIONS OF IMPLIED PROMISES. 591 action is one on contract or in tort, unless the pleader by aver- ment alleges the making of the contract, and demands damages for a breach in the one case, or by the omission of such an aver- ment makes it an action in tort ? I know of no more certain or convenient criterion by which to determine the class to which a cause of action belongs than the one suggested. If some such rule is not established, the question of misjoinder will arise in every case in which at the common law assumpsit and case were concurrent remedies." ^ § 540. It is very evident from the foregoing collection of deci- sions that the courts have, by an overwhelming preponderance of authority, accepted the simple requirement of the codes, and have not destroyed its plain import by borrowing the notion of a fictitious promise from the common-law theory of pleading. The practical rule may be considered as settled, that, in all instances where the right of action is based upon a duty or obligation of the adverse party which the common law denominates an implied contract, it is no longer necessary to aver a promise, but it is enoiigh to set out the ultimate facts from which the promise would have been inferred. This being so, we must go a step farther. If it is not necessary to make such an allegation, then it is not proper to do so ; although some of the judicial opinions, from a failure to apprehend the true grounds of the rule, would seem to permit, while they do not require, the averment. A promise need not be alleged because none was ever made : the facts constituting the cause of action are alone to be stated, and this promise is not one of those facts ; it is simply a legal infer- ence, contrived for a very technical purpose to meet the require- ments of form in the ancient legal actions. The same reason which shows that the averment is unnecessary demonstrates that it is improper, that it violates a fundamental doctrine of the new 1 Booth V. Farmers' and Mechanics' promise, arises. De la Guerra v. New- Banlj, 1 N. Y. S. C, 45, 40, 50, per Mullin hall, 55 Cal. 21 ; Mackey v. Auer, 8 Hun, J. It is very remarkable that the judge 180 ; a mere allegation of indebtedness, makes no reference whatever to the prior however, is not sufficient. Moore v. cases of Farron v. Sherwood and Cropsey Hobbs, 79 N. C. 535 . When a party to an u. Sweeney, which are decisive of the express contract may sue upon an ira- question involved. A promise need not plied contract, and the proper allegations be alleged, and if alleged a denial of it in such case, see Emslie v. City of Leaven- would raise no material issue, where the worth, 20 Kans. 562 ; action for labor and facts have been averred from which the materials, see Stephenson o. Ballard, 50 liability, represented by the Action of a Ind. 176 ; Jones v. Mial, 79 N. C. 164. 592 CIVIL REMEDIES. theory ; and if an harmonious system is ever to be constructed upon the basis of the reform legislation, this doctrine should be strictly enforced. § 541. The only recent case which is in direct conflict with these views is the one last quoted, Booth v. Farmers' and Me- chanics' Bank ; and it seems to demand some comment. Perhaps there cannot be found in the current reports a more striking example of exalting form above substance, and of repealing an express statutory provision by judicial construction, than is shown in this decision. The learned judge virtually admits that the text of the code is opposed to his conclusions, when he assumes that the codifiers failed to accomplish the results which they intended. It may be remarked that he speaks of the stat- ute as though it were entirely the work of the " codifiers," and he seems to ignore the authority of the legislature which made it a law. But are the common-law notion of an implied undertak- ing and the arbitrary requisite of alleging this fictitious promise such necessary conceptions, are they so involved in the essential nature of jurisprudence, that it is impossible or impracticable for the legislature to change or to abolish them ? The very sugges- tion is its own answer. Nothing in our ancient law was more thoroughly technical and arbitrary, more completely a mere matter of form, without even the shadow of substantial and necessary existence, than this very notion of a certain kind of legal liability being represented as arising from an implied prom- ise, and the accompanying rule that the promise thus imagined must be averred as though it were actually made. It was shown in a former part of this section that the action of assumpsit was not even invented as an instrunient by which to enforce the lia- bility thus conceived of ; but the fiction of an implied promise was itself contrived in order that the liability might be enforced by the already existing action of assumpsit, in which the allegation of a promise was the distinctive feature. The error of the opinion under review is, that it treats these matters of arbitrary form, these fictitious contrivances of the old pleaders, as though they subsisted in the nature of things, and were beyond the reach of legislative action. The difiiculty, suggested by the learned judge, of being unable to distinguish between an action of tort and one of contract, in order that an election might be made between them, exists only in imagination. If we will look THE COMMON COUNTS. 593 at the matter as it really is, throwing aside the old technicalities and fictions, there is plainly no necessity for any such distinction. If the pleader unites a cause of action upon express contract with a cause of action consisting of facts, from which under the former system a promise might have been implied, he has already made his election, — all the election that is needed, — and there would be no possibility of any subsequent change in or depar- ture from this original theory of his complaint. The only prac- tical difference which could ever arise from treating his second cause of action as though founded upon tort would be the power sometimes given of arresting the defendant either on mesne or final process, and this power would plainly have been surren- dered. To sum up the foregoing criticism, the whole course of reasoning pursued by the learned judge assumes that the most technical, arbitrary and fictitious distinctions between the ancient forms of action are still subsisting ; it does not merely ignore the legislation which has abrogated those distinctions, but it expressly denies the ability of the legislature to accomplish such a result. This is not interpreting, it is repealing, a statute. I have dwelt upon this case longer perhaps than it intrinsically merits ; but I have done so because the principles announced in it, if generally followed, would sap the very foundations of the reformed pro- cedure, and prevent tlie erection of any harmonious and sym- metrical system upon the basis of its fundamental doctrines. § 542. (2) Whether a complaint or petition, substantially the same in its form and its allegations with the old common or gen- eral count in assumpsit, is in accordance with the fundamental principles of the new procedure, and can now be regarded as a good pleading. The courts have almost unanimously answered this question in the affirmative, and have held that such com- plaints or petitions sufficiently set forth a cause of action in the cases where the declarations which they imitate would have been proper under the former practice.^ Notwithstanding the impos- 1 I have collected in this note the lead- Hurst v. Litchfield, 89 N. Y. 377 ; Green ing cases which sustain the position in the v. Gilbert, 21 Wis. 395 ; Evans u. Harris, text. Allen v. Patterson, 7 N. Y. 476; 19 Barb. 416; Grannis v. Hooker, 29 Meagher v. Morgan, 3 Kans. 372 ; Clark Wis. 65, 66, 67 ; Cudlipp u. Wiiipple, 4 V. Tensky, 3 Kans. 389 ; Carroll v. Paul's Duer, 610 ; Bates v. Cobb, 5 Bosw. 29 ; Executors, 16 Mo. 226; Brown v. Perry, Adams v. HoUey, 12 How. Pr. 326; Belts 14 Ind. .32; Kerstetter v. Raymond, 10 v. Bache, 14 Abb. Pr. 279; Sloman u. Ind. 199; Farron v. Sherwood, 17 N. Y. Schmidt, 8 Abb. Pr. 5; Goelth v. White, 227, 229; Hosley v. Black, 28 N. Y. 438 ; 35 Barb. 76 ; Stout o. St. Louis, &c. Co., 38 594 CIVIL REMEDIES. ing array of judicial authority shown by the citations in the foot-note, the courts of one or two States have refused to follow 52 Mo. 342 ; Curran v. Curran, 40 Ind. 473 ; Johnson v. Kilgore, 39 Ind. 147 ; BouslogK. Garrett, 39 Ind. 338 ; Wolf v. Schofield, 38 Ind. 175, 181 ; Noble v. Bur- ton, 38 Ind. 206 ; Higgins v. Germaine, 1 Mont. 230 ; Gwaltney v. Cannon, 31 Ind. 227 ; Fort Wayne, &c. E. R. v. McDonald, 48 Ind. 241, 243 ; Raymond o. Hanford, 6 N. Y. S. C. 312 ; Fells v. Vestvali, 2 Keyes, 152 ; Pavisich v. Bean, 48 Cal. 364; Wilkins ;;. Stldger, 22 Cal. 231; Abadie v. Carrillo, 32 Cal. 172 ; Merritt v. Gliddon, 39 Cal. 559, 564. The exact posi- tion of the courts in reference to this question will be shown by a quotation from a few of these decisions. The lead- ing case is Allen v. Patterson. The action was for the price of goods ; and the com- plaint was in form a count in indebitatus assumpsit for goods sold and delivered. Jewett J. said (p. 478) : " The code re- quires that the complaint shall contain a plain and concise statement of the facts constituting the cause of action. Every fact which the plaintiff must prove to enable him to maintain his suit, and which the defendant has a right to con- trovert iu his answer, must be distinctly averred or stated. The rule of pleading in an action for a legal remedy is the same as formerly in this, that facts, and not the evidence of facts, must be plead- ed." After an analysis of the complaint, he reaches the conclusion that its aver- ments are in conformity with these gen- eral principles. He does not notice, however, the feature which, above all others, distinguished this form of declara- tion in assumpsit — namely, that the legal effect of the facts was stated, instead of the actual fticts of the transaction ; nor does he advert to the nature, as a, pure conclusion of law, of the most important allegation, that " the defendant is indebted to the plaintiff." In Grannis v. Hooker, 29 Wis. 65, the complaint was in form a common count for money had and re- ceived; and, on the trial, the plaintifl offered to prove that he was induced to pay over money to the defendant by the latter's false and fraudulent repre- sentations in the sale of certain lands, which was now sought to be recovered. This evidence was rejected ; and, on the plaintiff's appeal, the court, by Cole J., said (pp. 66, 67) : "The complaint con- tains what, under the former system of pleading, would be called a count for money had and received. ... It is claimed by the defendant that all the facts in respect to the alleged fraud should have been distinctly stated in the complaint, otherwise the plaintiff is not entitled to prove them. On the other hand, it is claimed that all it is necessary the complaint should contain is substan- tially an allegation that the defendant has received a certain amount of money to the use of the plaintiff, as in the old form of declaration in indebitatus assumpsit. We are inclined to sanction the latter view, and to hold that the facts, which in the judg- ment of the law create the indebtedness orlia- bility, need not be set forth in the complaint." The complaints in several of the Indiana cases above cited were as follows : In Curran w. Curran, "the plaintiff says that the defendant is indebted to him in the sum of, &c., for the following-described real estate sold and conveyed to him by the plaintiff [description] ; that said sum is now due and wholly unpaid, for which the plaintiff demands judgment," &c. ; in Johnson v. Kilgore, " that said defendant is indebted to him in the sum of, &c., for work and labor done and performed, and materials furnished, wherefore," &c. ; In Bouslog V. Garrett, " that on, &c., the de- fendant was indebted to the plaintiff in the sum of, &c., for money found due from said defendant to the plaintiff upon an account then stated between them, which said sum remains unpaid, where- fore," &c. ; in Wolf v. Schofleld, " that the defendant is indebted to him in the sum of, &c., for work and labor done and performed, and for materials furnished by the plaintiff for the defendant at his in- stance and request, wherefore," &c. These and other similar complaints were sus- tained by the courts of that State, not upon any discussion of general principles, but because they were in accordance with certain short forms prescribed by the leg- THE COMMON COUNTS. 595 this course of decision, and have pronounced such forms of complaint or petition to be in direct conflict with the correct principles of pleading established by the codes. Although these few cases cannot be regarded as shaking, or as throwing any doubt upon, the rule so firmly established in most of the States, they may be properly cited in order that all the light possible may be thrown upon this particular question of inter- pretation .^ § 543. Not only have the courts in this manner sanctioned the use of the common counts as appropriate modes of setting forth the plaintiff's cause of action ; they have also held that another rule of the old practice is still retained by the codes. The rule thus declared to be in force is the following : When (.he plaintiff has entered into an express contract with the defendant, and has fully performed on his part, so that nothing remains unexecuted but the defendant's obligation to pay, he may if he please sue upon the defendant's implied promise to make such payment, rather than upon the express undertaking of the original con- tract ; and to that end he may resort to a complaint or petition identical with the ancient common counts ; except, as has already been shown, the averment of a promise may, and according to islature, and declared by it to be sufficient, sum mentioned, or that the defendants They plainly violate every essential re- promised to pay that sum, and laid down quirement of the code Itself. That the the general doctrine in the following raan- comraon counts may still be used, see also ner : " In actions for goods sold and de- Magee r. Kast, 49 Cal. 141 ; Ball v. Ful- livered, it is essential thiit one or the Ion, 31 Ark. 379 ; Jones v. Mial, 82 N. C. other of these allegations should be made. 252 ; 79 id. 164 ; Emslie v. Leavenworth, Without it the allegation of indebtedness 20 Kans. 562 ; Comm'rs u. Verbaug, 63 is a mere conclusion of law unsupported Ind. 107. by any fact. The defendant's liability 1 Foerster v. Kirkpatrick, 2 Minn. 210, grows out of the fact that the goods were 212 ; Bowen v. Emnierson, 3 Oreg. 452. either worth the amount of the claim, or The complaint in the first of these cases else that they promised to pay that was, "that the above-named defendants amount. If they were worth the amount, are justly indebted to the plaintiff in the the law implies a promise. Without one sum of, &c., on account for goods, wares, or the other of these allegations, there and merchandise sold and delivered by " appears no consideration to support the the plaintiff to the defendants at the spe- pretended indebtedness. In Bowen v. cial instance and request of the defend- Emmerson the Supreme Court of Oregon ants, wherefore," &c. ; and it will be pronounced the use of the general count noticed that this is fuller than several of in a.ssumpsit to be entirely inconsistent the forms before quoted, since it alleges a with the reformed theory of pleading, and request. In sustaining a demurrer to this expressly refused to follow the decision complaint, the court held it defective, be- made in Allen r. Patterson. The opinion cause it contained (1) no statement of the is a clear and very strong nrgument in time of sale, and (2) no averment that favor of the simple and natural modes of the goods were of the price or value of the pleading provided by the codes. 596 CIVIL REMEDIES. the better opinion should, be omitted.^ This doctrine is sup- ported by numerous decisions in various States, and it seems to be regarded as still operative in all the circumstances to which it was applicable under the former system. § 544. In the face of this overwhelming array of authority, it may seem almost presumptuous even to suggest a doubt as to the correctness of the conclusions that have been reached with so much unanimity. I cannot, however, consistently with my very strong convictions, refrain from expressing the opinion that, in all these rulings concerning the use of the common counts, the courts have overlooked the fundamental conception of the re- formed pleading, and have abandoned its essential principles. This position of inevitable opposition was clearly, although unin- 1 Farron o. Sherwood, 17 N. Y. 227, 229; Hosley v. Black, 28 N. Y. 438; Hurst V. Litclifield, 39 N. Y. 377; Atkinson v. Collins, 9 Abb. Pr. 353 ; Evans v. Harris, 19 Barb. 416; Green o. Gilbert, 21 Wis. 895, an action to recover for the part per- formance of an express contract, the plaintiff having been prevented by sick- ness from completing ; Carroll v. Paul's Executors, 16 Mo. 226 ; Brown .-. Perry, 14 Ind. 32; Kerstetter v. Raymond, 10 Ind. 199; Stout v. St. Louis T. Co., 52 Mo. 342; Eriermulli v. Erierrauth, 46 Cal. 42; Raymond v. Hanford, 6 N. Y. S. C. 312; Fells v. Vestvali, 2 Keyes, 152. In Sussdorf V. Schmidt, 55 N. Y. 319, .324, the complaint alleged an agreed compen- sation for services ; but, at the trial, the plaintiff was permitted to prove their value as upon a quantum meruit, and this was held no error, or at most an immate- rial variance ; but, per contra, in Davis u. Mason, 3 Oreg. 154, it was held that in an action for services, the complaint stating an express contract to pay a stipulated sum, the plaintiff cannot prove and recover their value upon a quantum meruit. In Farron v. Sherwood, which is, perhaps, the leading case, the doctrine was thus announced by Strong J. (p. 229): "The case is therefore within the well- settled rule, that when there is a special agreement, and the plaintiff has performed on his part, the law raises a duty on the part of the defendant to pay the price agreed upon, and the plaintiff may count either upon this implied assumpsit, or on the express agreement. A new cause of action, upon such performance, arises from this legal duty in like manner as if the act done had been done upon a gen- eral request, without an express agree- ment. This rule is not affected by the code. The plaintiff might, as he has done, rest his action on the legal duty, and his complaint is adapted to and con- tains every necessary element of that cause of action." In Kerstetter v. Ray- mond, the Supreme Court enumerated the instances in which the general or common count was a proper means of suing upon an express contract between the parties, and declared that they were all retained by the codes. These instances are, (1) when the plaintiff has fully exe- cuted, and the time of payment is passed, the measure of damages being the stipu- lated price ; (2) when the special contract has been altered or deviated from by com- mon consent ; (3) when the plaintiff has performed a part, and has been pre- vented from performing the whole by the act of the defendant, or by the act of the law ; (4) when the plaintiff has not fully complied with the terms of the con- tract, but, professing to act under it, has done for or delivered to the other party something of value to him which he has accepted. This last doctrine is not uni- versally accepted in the broad terms as here stated; but It is the settled rule in Indiana. See Lomax v. Bailey, 7 Blaekf. 599. THE COMMON COUNTS. 597 tentionally, described by one of the judges in language already quoted, when he says, " We are inclined to sanction the latter "view, and to hold that the facts which, in the judgment of the law, create the indebtedness or liability, need not be set forth in the complaint." Now, the "facts which create the liability " are the "facts constituting the cause of action" wliich tlie codes expressly require to be alleged ; the two expressions are synony- mous ; and the direct antagonism between what the court says need not be done, and what the statute says must be done, is patent. But the objection to the doctrine of these decisions does not chiefly rest upon such verbal criticism ; it is involved in the very nature of the new theory when contrasted with the old methods. In every species of the common count, the averments, by means of certain prescribed formulas, presented what the pleader conceived to be the legal effect and operation of the facts instead of the facts themselves, and the most important of them was always a pure conclusion of law. The count for money had and received well illustrates the truth of this propo- sition. In the allegation that " the defendant was indebted to the plaintiff for money had and received by him to the plaintiff's use," the distinctive element was the phrase " money had and received to the plaintiff's use." This technical expression was not the statement of a fact, in the sense in which that word is used by the codes ; if not strictly a pure conclusion of law, it was at most a symbol to which a certain peculiar meaning had been given. The circumstances under which one person could be liable to another for money had and received were very numerous, embracing contracts express or implied, and even torts and frauds. The mere averment that the defendant was indebted for money had and received admitted any of these circumstances in its support, but it did not disclose nor even sug- gest the real nature of the liability, the actual cause of action upon which the plaintiff relied. The reformed theory of plead- ing was expressly designed to abrogate forever this general mode of averment, which concealed rather than displayed the true cause of action ; it requires the facts to be stated, the facts as they exist or occurred, leaving the law to be determined and applied by the court. The same is true of the common count in every one of its phases. A careful analysis would show that the important and distinctive averments were either naked con- 598 CIVIL KEMBDIES. elusious of law, or the legal effect and operation of the facts expressed in technical formulas to which a particular meaning had been attached, and which were equally applicable to innu- merable different causes of action. The rule which permitted the general count in assumpsit to be sometimes used in an action upon an express contract was even more arbitrary and technical, and was wholly based upon fictitious notions. The conception of a second implied promise resulting from the duty to perform the original express promise has no foundation whatever in the law of contract, but was invented, with great subtlety, in order to furnish the ground for a resort to general assumpsit instead of special assumpsit in a certain class of cases. All the reasons in its support were swept away by the legislation which abolished the distinctions between the forms of action, since it was in such distinctions alone that those reasons had even the semblance of an existence. My space will not permit this discussion to be pursued any farther, although much more might be added to the foregoing suggestions. If the principles of pleading heretofore developed in the text are true expressions of the reformed theory, the legislature certainly intended that the facts constituting each cause of action should be alleged as they actually happened, not by means of any technical formulas, but in the ordinary language of narrative ; and it is, as it appears to me, equally certain that the use of the common counts as complaints or petitions is a violation of these fundamental principles. § 545. From the few general principles which thus constitute the simple foundation of the reformed pleading, there result as corollaries certain subordinate doctrines and practical rules, to the development and illustration of which the remaining portion of the present section will be devoted. The immediate object of these special rules is to enforce in complaints or petitions and answers a conformity with the essential principles upon which the system is based, and at the same time to procure a decision of judicial controversies upon their merits, and not upon any mere technical requirements as to form and mode. They relate to the practical methods which must be pursued in setting forth the causes of action and the defences ; and the particular sub- jects with which they deal are (1) insufficient, incomplete, or im- perfect allegations, (2) immaterial and redundant allegations, (3) the doctrine that the cause of action or the defence proved LIBERAL CONSTRUCTION OF PLEADINGS. 599 must correspond with the one alleged. Connected with and subsidiary to these topics are the remedies provided for each, and particularly that of amendment, which the codes expressly authorize with the utmost freedom, and also the power of elect- ing between the two modes of setting forth the same cause of action under certain circumstances either as ex contractu or as ex delicto. Preliminaiy, however, to the discussion thus outlined, I shall state and very briefly explain a principle which will necessarily affect its whole course, and largely determine its re- sults, — the principle of construction as applied to the pleadings themselves. § 546. It vras a rule of the common law firmly established and constantly acted upon, — that, in examining and deciding all ob- jections involving either form or substance, every pleading was to be construed strongly against the pleader ; nothing could be presumed in its favor ; nothing could be added, or inferred; or supplied by implication, in order to sustain its sufficiency. This harsh doctrine, unnecessary and illogical in its original concep- tion, and often pushed to extremes that were simply absurd, was the origin of the technicality and excessive precision, which, more than any other features, characterized the ancient system in its condition of highest development. All the codes contain the following provision, or one substantially the same : " In the con- struction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed with a view to substan- tial justice between the parties." The evident intent of the legislature in this clause was to abrogate at one blow the ancient dogma, and to introduce in its place the contrary principle of a liberal and equitable construction ; that is, a construction in ac- cordance with the general nature and design of the pleading as a whole. This mode of interpretation does not require a leaning in favor of the pleader in place of the former tendency against him ; it demands a natural spirit of fairness and equity in ascer- taining the meaning of any particular averment or group of aver- ments from their relation and connection with the entire pleading and from its general purpose and object. The courts have uni- formly adopted this view of the provision ; and although in par- ticular instances they may sometimes have departed from it, yet, in their announcement of the theory^ they have unanimously conceded that the stern doctrine of the common law has been abolished, 600 ■ CIVIL REMEDIES. and that, instead thereof, an equitable mode of construction has been substituted. From the multitudes of decisions which main- tain this position with more or less emphasis I select a few ex- amples, and other illustrations will be subsequently given. § 547. The New York Court of Appeals, while construing a complaint, said : " The language is clearly susceptible of this interpretation ; and if so, that interpretation should be given in preference to [another which was stated]. If the language ad- mits of the latter interpretation, it may be said to be ambiguous, and that is all. It is not true that under the code, if there be uncertainty in respect to the nature of the charge, it is to be construed strictly against the pleader. By § 159, in the con- struction of a pleading, its allegations must be liberally construed with a view to substantial justice." ^ The language used by the Supreme Court of Wisconsin in a similar case is still stronger : " Contrary to the common-law rule, every reasonable intendment and presumption is to be made in favor of the pleading." ^ The same interpretation is given to the provision in Iowa; the old dogma of leaning against the pleader is abandoned, and a liberal and equitable construction is now the rule.^ The practical force and operation of this principle, and how much effect it actually produces in the judicial process of construing pleadings, can best be seen by an examination of the decisions in which it has been invoked. A few of them have therefore been selected, and placed in the foot-note.* In a very small number of cases, however, the courts seem to have overlooked this change made by the statute, and have expressly declared that the construction must be adverse to the pleader, thus recognizing the ancient rule as still in force ; ^ 1 Olcott V. Carroll, 39 N. Y. 436, 438. Eobson v. Comstock, 8 "Wis. 372, 374, 2 Morse v. Gilman, 16 Wis. 504, 507. 375 ; Morse v. Gilman, 16 Wis. 504. As See also Hazleton v. Union Bank, 32 further examples, see Bushey v. Reynolds, Wis. -34, 42, 43, which holds that greater 31 Ark. 657 ; Thompson v. Killian, 25 latitude of presumption is admitted to Minn. Ill ; Ferguson v. V. & T. R. K., sustain a complaint, when objection to it 13 Nev. 184 ; Childers v. Verner, 12 S. C. is not made until the trial, after issues 1 ; Wilkins v. Moore, 20 Kans. 538 ; have been formed by an answer. Strong v. Hoos, 41 Wis. 659 ; Whitman 3 Shank v. Teeple, 33 Iowa, 189, 191 ; v. Watry, 44 id. 491 ; Evans v. Neale, 69 Foster w. Elliott, 33 Iowa, 216, 223 ; Gray Ind. 148; Moore v. Moore, 56 Cal. 89; V. Goan, 23 Iowa, 344 ; Doolittle v. Green, Wilcox v. Hausch, 57 id. 139. 32 Iowa, 123, 124. » Commonwealth v. Cook, 8 Bush, 220, * McGlasson v. Bradford, 7 Bush, 250, 224; Wright c. McCormick, 67 N. C. 27. 252; Joubert v. Carli, 26 Wis. 594 ; Clay And see Rogers v. Sliannon, 52 Cal. 99 ; V. Edgerton, 19 Ohio St. 549 ; supra, § 535 ; Henley v. Wilson, 77 N. C. 216 (common- Gunn V. Madigan, 28 Wis. 158, 164; law rule applied; ambiguous language IMPERFECT OR INFORMAL ALLEGATIONS. 601 while in some others the judicial action was clearly based upon that old doctrine, although it was not formally announced in the opinions.^ Under the light of this beneficent but new principle, that pleadings are to be construed fairly, equitably, and liberally, with a view to promote the ends of justice, and not enforce any arbitrary and technical dogmas, I shall proceed to consider, in the order already indicated, the several practical rules mentioned above, which regulate the manner of setting forth the cause of action or the defence. § 548. I. Insufficient, imperfect, incomplete, or informal allega- tions ; the mode of objecting to and correcting them. The codes clearly intend to draw a broad line of distinction between an en- tire failure to state any cause of action or defence, on the one side, which is to be taken advantage of either by the general de- murrer for want of sufficient facts, or by the exclusion of all evidence at the trial, and the statement of a cause of action or a defence in an insufficient, imperfect, incomplete, or informal manner, which is to be corrected by a motion to render the plead- ing more definite and certain by amendment. The courts have, in the main, endeavoi'ed to preserve this distinction, but not al- ways with success ; since averments have sometimes been treated as merely incomplete, and the pleadings containing them have been sustained on demurrer, which appeared to state no cause of action or defence whatever ; while, in other instances, pleadings have been pronounced wholly defective and therefore bad on de- murrer, or incapable of admitting any evidence, the allegations of which appear to have been simply imperfect or incomplete. It is undoubtedly difficult to discriminate between these two conditions of partial and of total failure ; and it is utterly impos- sible to frame any accurate general formula which shall define or describe the insufficiency, incompleteness, or imperfectness of averment intended by the codes, and shall embrace all the pos- sible instances within its terms. By a comparison of the decided cases, some notion, however, may be obtained of the distinction, recognized if not definitely established by the courts, between the absolute deficiency which renders a pleading bad on demurrer or strictly construed against the pleader ; no Phoenix Ins. Co., 44 Cal. 264; Scofield intendments in his favor). v. Wliitelegge, 49 N. Y. 259, 261 ; Holmes 1 For examples, see Hathaway v. v. Williams, 16 Minn. 164, 168. Quinby, 1 N. Y, S. C. 386; Doyle v. 602 CIVIL EEMEDIES. at the trial, and the incompleteness or imperfection of allegation which exposes it to amendment by motion ; and in this manner alone can any light be thrown upon the nature of the insuffi- ciency which is the subject of the present inquiry. § 549. The true doctrine to be gathered from all the cases is, that if the substantial facts which constitute a cause of action are stated in a complaint or petition, or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete, and defective, such insufficiency pertaining, however, to the form rather than to the substance, the proper mode of correction is not by demurrer, nor by excluding evidence at the trial, but by a motion before the trial to make the averments more definite and certain by amendment.^ From the citations in the foot-note, it is clear that 1 People V. Ryder, 12 N. Y. 433 ; Prin- dle V. Caruthers, 15 N. Y. 425 ; Flanders V. McVickar, 7 Wis. 372, 377 ; Eobson v. Comstock, 8 Wis. 372, 374, 375; Kaelm V. Wilson, 13 Wis. 104, 107, 108 ; Morse v. Gilman, 16 Wis. 504, 507 ; liimball ... Darling, 32 Wis. 675, 684; Eeeve ^. Fraker, 32 Wis. 243 ; Hazleton v. Union Bank, 32 Wis. 34, 42, 43 ; Horn v. Lud- ington, 28 Wis. 81, 83 {a motion made and granted, — a good illustration of de- fective allegations added to) ; Clay u. Kdgerton, 19 Ohio St. 549; Winter u. Winter, 8 Nev. 129 (statement of a ma- terial fact by way of recital) ; Saulsbury V. Alexander, 50 Mo. 142, 144 ; Corpenny u. Sedalia, 57 Mo. 88 (a motion in arrest of judgment not proper when a cause of action is stated however defectively); Pomeroy v. Benton, 57 Mo. 531, 550 ; Hale V. Omaha Nat. Bank, 49 N. Y. 626, 630 ; Barthol v. Elakin, 34 Iowa, 452 ; Eussell V. Mixer, 42 Gal. 475 ; Slattery V. Hall, 43 Cal. 191 (objection that a com- plaint is ambiguous cannot be raised under a general demurrer) ; Blasdel v. Williams, 9 Nev. 161 ; Smith v. Dennett, 15 Minn. 81 ; Lewis v. Edwards, 44 Ind. 833, 336 ; Snowden v. Wilas, 19 Ind. 10 ; Lane v. Miller, 27 Ind. 534 ; Johnson v. Robinson, 20 Minn. 189, 192 ; Mills v. Rice, 3 Neb. 76, 86, 87 ; Trustees v. Odlin, 8 Ohio St. 293, 296. A quotation from a few of these cases will show the exact position taken by the courts in reference to the extent of defect which can and must be cured by motion ; and I select from among those which have discussed the subject in the most general manner. In Prindle v. Caruthers, 15 N. Y. 425, the complaint set out a copy of a written contract made by defendant, and reciting that, " for value received," he " promised to pay H. C. or E. C," &c. ; but it did not, in any other manner, allege a con- sideration. It also stated that " the con- tract is, and was prior to, &c., the property of the plaintiff by purchase," but did not disclose from whom the transfer was made, nor the consideration. The de- fendant demurring for want of sufficient facts, the court held that the copy of the contract as set forth contained a sufficient allegation of a consideration, and added : " The remedy for all defects of this na- ture is by motion to make the faulty pleading more definite and certain; that proceeding has taken the place of demur- rers for want of form." Eobson v. Com- stock, 8 Wis. 372, was an action for malicious prosecution. The complaint merely alleged that the defendant, mali- ciously and without probable cause, pro- cured the plaintiff to be arrested and to be imprisoned, to his damage, &c., but did not state the nature of the Indictment, nor in what the charge consisted, nor even that it was false, nor that there had been a trial, nor that the plaintiff had been discharged or acquitted. The de- IMPEEFECT OK INFOEMAL ALLEGATIONS. 603 the courts have, with a considerable degree of unanimity, agreed upon this rule, and have in most instances applied it to defects fendant answered by a general denial; and, at the trial, tlie plaintiff had a ver- dict. On appeal from the judgment, the court, by Cole J., held (pp. 374, 375) that the complaint was exceedingly defective and informal in its manner of setting out the cause of action ; but it was cured by the verdict. The plaintiff' must have proved a discharge or acquittal, or else he could not have obtained a verdict. The code requires a liberal construction ; and the defendant should have moved that the pleading be made definite and certain by supplying the omitted aver- ments. In Morse v. Oilman, 16 Wis. 504, the complaint alleged that defend- ant entered into a written contract with one Merrick for grading at a specified price per cubic yard ; that the work had been completed by M. according to the agreement ; that there was due there- on a certain named sum; and that the demand had been assigned by M. to the plaintiff; but it did not to any further extent state the provisions of the contract. At the trial, all evidence on the part of the plaintiff was excluded, and the com- plaint was dismissed. In reversing this ruling, the court, by Dixon C. J., said (p. 507) : " That the contract between M. and the defendant is not set out, as it undoubtedly should have been, is not an objection which can be taken in this way. The remedy of the defendant for this de- fect is by motion to require the complaint to be made more definite and certain by amendment. A complaint to be over- thrown by demurrer, or by objection to evidence, must be wholly insufiicient. If any portion of it, or to any extent it pre- sents facts sufficient to constitute a cause of action, or if a good cause of action can be gathered from it, it will stand, how- ever inartificially these facta may be pre- sented, or however defective, uncertain, or redundant may be the mode of their treatment. Contrary to the common-law rule, every reasonable intendment and presumption is to be made in favor of the pleading; and it will not be set aside on demurrer unless it be so fatally defective, that, taking all the facts to be admitted, the court can say they furnish no cause of action whatever ; " citing and approving Cudlipp V. Whipple, 4 Duer, 610 ; Gra- ham u. Cammau, 5 Duer, 697 ; Broderick V. Poillon, 2 E. D. Smith, 554. In Sauls- bury y. Alexander, 60 Mo. 142, the peti- tion was, "Plaintiff states that defendant owes him, &c., for work done and cash lent, the particulars of which appear from the following account," &c., and conclud- ing with a statement of the balance due, and a prayer tor judgment. The defend- ant, making no objection to this pleading, answered, setting up only that the work had been negligently done, and that he had already paid more than its value. The plaintiff recovering at the trial, the defendant moved in arrest of judgment, on the ground that no cause of action was averred. This motion having been granted by the court below, the plaintiff appealed. The opinion of the Appellate Court, by Bliss J., proceeds as follows : " The petition is informal and defective, and there are some cases which seem to warrant the vievv taken by the court ; but the tendency of our more recent de- cisions is to require all objections of form to be taken before the parties proceed to trial." After admitting that the cause of action was imperfectly stated, but that the main fact of the plaintiff's work, &c., for the defendant was admitted by the answer, which took issue merely upon the character of the labor, the opinion goes on ; " Now, it is altogether uncon- scionable to permit him to arrest the judgment, because the charge which he admitted in full is defectively laid. When we say that a judgment should be arrested if the petition fails to show a cause of ac- tion, we speak of substantial, and not of formal, omissions. The latter are sup- plied by intendment, and will be pre- sumed, after verdict, to have been proved. But when the petition shows that the plaintiff has no cause of action, then the verdict should be treated as a nullity. But if the defects are merely of omission, and if, when supplied, a com- plete case would be made, the omission being of facts which the jury must have 604 CIVIL EEME0IES. and mistakes having the same general features, and have some- times severely strained the- doctrine of liberal construction in found, then the judgment is a legitimate sentence of the law." In the recent case of Pomeroy v. Benton, 57 Mo. 631, 650, Sherwood J. declares the rule to be, that if the petition, however inartificially drawn, do but state a, cause of action, and no objections are taken to its formal character, by demurrer or answer, or by motion to correct, then all objections are waived; and he very pertinently adds that " it seems often to be forgotten that we have a code in Missouri." The same doctrine was announced in Elfrank v. Seller, 54 Mo. 134; Russell v. State Ins. Co., 55 Mo. 585 ; and Biddle v. Ramsey, 52 Mo. 153. The position taken by the court in those cases, and in Saulsbury v. Alexander, supra, is a wide departure from that maintained by some of the earlier decisions of the same court, which arrested judgments for ihe most trivial defects of the petition, equalling, if not, indeed, surpassing, the devotion to tech- nicality shown by the English common- law tribunals. Blasdel v. Williams, 9 Nev. 161, was an action to quiet title under express provisions of the statute (code, § 256). The complaint alleged that the plaintiffs have the legal title, and are in possession ; that the defendant claims an estate or interest in said land adverse to the plaintiff 's right ; that defendant has no lawful interest or estate therein ; or in any portion thereof, or valid claim or title thereto ; with a prayer that de- fendant's claim might be adjudged void, and the plaintiffs' title quieted. The an- swer was a denial, no demurrer being in- terposed or motion made. This complaint being objected to, on appeal, the court held that the plaintiffs should have stated more than the mere general averments in respect to the defendant's adverse claim above quoted. They should disclose its nature, the estate which he asserts in the land, so as to show how it is prejudicial to the plaintiffs' interest, and must then negative these allegations. Nevertheless, the pleading as it stood was suflScient in the absence of a demurrer. Tlie court said : " It is an attempt to state a cause of action, and is simply a defective state- ment o£ such cause, rather than an abso- lute lack thereof. This case is a very excellent illustration of the rule, and would have been perfect if the court had said that the pleading must stand in the absence of a motion to correct it, instead of " in the absence of a demurrer ; " for the defect was exactly of the kind not readied by a demurrer. The court, in Mills V. Rice, 3 Neb. 76, 86, 87, said that wlien a petition is uncertain or indefinite in its allegations, when it attempts to set up a good cause of action, but the defect does not go to the length of omitting to state any cause of action, the defendant must move to correct ; he cannot take advantage of it by demurrer. The fol- lowing cases are additional examples, and they generally sustain the distinction stated in the text and the rule there laid down: Ball w. Fulton, 31 Ark. 379 (the rule of the text, § 549, quoted, npproved and followed) ; Kalckhoff w. Zoehrlaut, 40 Wis. 427 ; Lasli v. Christie, 4 Neb. 262 ; Surringer v. Paddock, 31 Ark. 528 ; AuU V. Jones, 5 Neb. 500 ; Parrar v. Triplet, 7 id. 237; Dorsey v. Hall, 7 id. 460; State I'. North. Belle Min. Co., 15 Nev. 385 ; Dist. Townp. of Coon u. Board of Directors, 52 Iowa, 287 ; McCormiek v. Basal, 46 id. 235 ; Bradley v. Parkhurst, 20 Kan. 462 ; Walter v. Powler, 85 N. Y. 621 ; Marie v. Garrison, 83 id. 14, 23; Calvo V. Davies, 73 id. 211 ; Kaster o. Kaster, 52 Ind. 581 ; Brooklyn, &c. Co. v. Pum- phrey, 59 id. 78; TJ. S. Express Co. V. Keefer, 59 id. 263 ; City of Evansville V. Thayer, 59 id. 324 ; Pennsylvania Co.u. Sedgwick, 59 id. 336; Rees v. Cupp, 59 id. 566 ; Shaw v. Merchants' Bank, 60 id. 83; Boyce t;. Brady, 61 id. 432; Sebbitt V. Stryker, 62 id. 41 ; Barrett v. Leonard, 66 id. 422 ; Wiles v. Lambert, 66 id. 494; Proctor V. Cole, 66 id. 576; Dale v. Thomas, 67 id. 570 ; Earle v. Patterson, 67 id. 503 ; Milroy v. Quinn, 69 id. 406 ; Lee V. Davis, 70 id. 464 ; Smith v. Free- man, 71 id. 229 ; Frayser v. Kerschner, 73 id. 183 ; Ohio, &o. R. R. v. Colburn, 73 id. 261 ; Snyder v. Baber, 74 id. 47 ; Gentz c. Martin, 75 id. 228; Drais v. Hogan, 50 Cal. 121 ; Jameson v. King, 50 IMPERFECT OR INFORMAL ALLEGATIONS. 605 order to enforce it. Thus, if instead of alleging the issuable facts the pleader should state the evidence of such facts, or even a portion only thereof, unless the omission was so extensive that no cause of action at all was indicated, or if he should aver con- clusions of law, in place of fact, the resulting insufficiency and imperfection would pertain to the form rather than to the sub- stance, and the mode of correction would be by a motion, and not by a demurrer. It is virtually impossible, however, to lay down a dividing-line, so that on the one side shall fall all the errors which are venial, and on the other all those which are fatal. While in most instances the courts have held that a motion is the only means of removing the defect, and therefore that a neglect to make a motion waives all objection without any refer- ence to the stage of the cause, yet in some cases a considerable stress has been laid upon the effect of a verdict in curing the error.^ And in certain decisions tlie language of the judges tends to create an unnecessary confusion, and to incorporate an addi- tional element of doubt into the rule, which is not at best, from its ver}' nature, capable of absolute certainty. In the cases re- ferred to, the courts have declared that if the defendant omits to move to make the pleading more definite and certain, or to demur, but answers and goes to trial, the objection is waived.^ This form of expression is a plain departure from the rule as given above, and is self-contradictory. The very distinctive feature of the class of defects under consideration is, that they do not render a pleading demurrable, but onl}' expose it to amendment by motion. A failure to demur is therefore entirelj'^ immaterial ; it does not waive anything, because the demurrer if resorted to would have accompli.shed nothing. Doubt and obscurity alone as to the true meaning and the exact force of the rule can arise from this careless use of language. id. 132 ; Mayor, &c. v. Sigmont, 50 id. the above cases, cited from that State, 298. hold that such a motion is not proper 1 See Robson v. Comstock, 8 "Wis. wiien the petition is simply defective and 372, 374, 375 ; Hazleton v. Union Bank, imperfect in its statement of the cause of 32 Wis. 34, 42, 43; Clay v. Edgerton, 19 action, and should only be made when it Ohio St. 649; Saulsbury v. Alexander, wholly fails to set forth any cause of ac- 50 Mo. 142, 144 ; Corpenny u. Sedalia, 57 tion ; the mere imperfection is cured by Mo. 88 ; Pomeroy v. Benton, 57 Mo. 531, the verdict. 650 ; Blasdel v. Williams, 9 Nev. 161 ; 2 Pomeroy v. Benton, 57 Mo. 531, 550 ; Smith V. Dennett, 15 Minn. 81. In Mis- Blasdel v. Williams, 9 Nev. 161 ; Smitli scuri, and in a fevv other States, amotion v. Dennett, 15 Minn. 81 ; Johnson o. Rob- in arrest of judgment is permitted by the inson, 20 Minn. 189, 192. practice under some circumstances, and 606 CIVIL REMEDIES. § 550. It has even been held that where a cause of action is so defectively set out that a demurrer for want of sufficient facts would have been sustained, but the adverse party answers instead, and goes to trial, the objection to the pleading is thereby waived, and evidence in its support must be admitted.^ Other cases are directly opposed to this position, and expressly declare that if the complaint or petition fails to state any cause of action the objec- tion is not waived, and all evidence should be excluded at the trial, even though the defendant has answered ; and this ruling is in exact conformity with the provisions of all the codes regu- lating the use of demurrers.^ The doctrine first stated is clearly erroneous, and the dicta or decisions which sustain it ought to be wholly disregarded ; it violates the section of the codes which enacts that the absence of sufficient facts as a ground of demurrer is not abandoned by an omission to demur; and it utterly ignores the established distinction between a failure to state any cause of action and the statement of a cause of action in an imperfect and defective manner. It is only when the answer itself by some of its averments supplies the omission in a complaint or petition otherwise demurrable, that the fault is cured and the objection waived by answering ; mere answering instead of demurring can- not produce that effect.^ If the averments are so defective, if the omission of material facts is so great, that, even under the rule of a liberal constriiction, no cause of action is stated, it is not a mere case of insuificiencj', but one of complete failure ; and the complaint or petition should be dismissed at the trial, or- a judgment rendered upon it should be reversed. A few examples are placed in the foot-note.* While the general doctrine before 1 Treadway v. Wilder, 8 Nev. 91. intended and attempted to set out, but 2 Garner v. McCiiUough, 48 Mo. 318; which he failed to set out by reason of Scofield V. Whitelegge, 49 N. Y. 259, 261, omissions and defects in the material alle- 262 ; Saulsbury v. Alexander, 50 Mo. 142, gations ; and it Is to be distinguished 144. from a cause of action entirely bad in ' Scofield V. Whitelegge, 49 N. Y. law, no matter how complete and perfect 259, 261, 262 ; Bate v. Graham, 11 N. Y. may be the averments by whicli it is 237; Louisville Canal Co. a. Murphy, 9 stated. In the first case a pure question of Bush, 522, 529. pleading is involved, and the complaint < Antisdel v. Chicago and N. W. E. E., or petition is demurrable because the 26 Wis. 145, 147 ; Tomlinson v. Monroe, rules of pleading have been essentially vio- 41 Cal. 94 (an ambiguous and unintelli- lated ; in the second case a pure question gible complaint) ; Holmes v. Williams, 16 of law is involved, and the complaint or Minn. 164,168. The case described in petition is demurrable, although the rules the text is that of a cause of action, good of pleading have been in every respect if properly pleaded, which the plaintiff complied with. IMPEEFECT OR INFORMAL ALLEGATIONS. 607 stated, as to the nature of insufficient and defective averments, has been universally approved in the abstract, it has sometimes been departed from, and pleadings have been wholly condemned, which, according to the criterion established by numerous cases, set forth a cause of action, although in an incomplete and imper- fect manner. Some illustrations of this strict method of decision are given in the note.^ 1 Scofield V. Whitelegge, 49 N. Y. 259 ; 261 ; Hathaway v. Quinby, 1 N. Y. S. C. 386; Doyle v. Phoenix Ins. Co., 44 Cal. 264, 268 ; Holmes v. Williams, 16 Minn. 164, 168. Scofield v. Whitelegge was an action to recover possession of a chattel. The complaint alleged that the defendant liad become possessed of and wrongfully detained from the plaintiff a piano of the value of, &c., and demanded the usual judgment. The answer denied the pos- session of any property belonging to the plaintiff, denied the wrongful taking, and denied the plaintiff's ownership. The complaint was dismissed at the trial, on the ground that it stated no cause of ac- tion. The opinion of the New York Court of Appeals, by Folger J., after re- citing the common-law rule in replevin, that the action could only be maintained by one who had the general or a special property in the chattel, that this property must have been averred in the declara- tion, that the action under the code takes exactly the place of the old replevin, and that the plaintiff in it must have a prop- erty in the chattel, proceeds as follows (p. 261) : "Nor is it less necessary now than then forthe plaintiff to aver the facts which constitute his cause of action. He must allege the facts, and not the evi- dence ; he must allege facts, and not con- clusions of law. The plaintiff here alleges that the defendant wrangfuVy detains from him the chattel. If, indeed, this be true, then it must be that the plaintiff has a general or special property in the chattel and the right of immediate possession. But unless he has that general or special property and right of immediate posses- sion, it cannot be true that it is wrongfully detainedfromhim. The last — the wrong- ful detention — grows from the first, — the property andright of possession. The last is the conclusion. The first is the fact upon which that conclusion is based ; it is the fact which, in a pleading, must be alleged. Is not the statement of a conclusion of law, without a fact averred to support it, an immaterial statement ■? " This decision is certainly technical to the last degree when tested by the standard established in the codes and in other cases. The complaint was undoubtedly imperfect ; but it set forth a cause of ac- tion, although in an incomplete manner. The learned judge concedes that the aver- ment " the defendant wrongfully detains from the plaintiff " necessarily presupposes and implies a property and right of pos- session in the plaintiff. The only defect, therefore, consisted in an allegation of the evidence, or perhaps of the legal con- clusion, instead of the issuable fact. The defendant was not misled ; his answer shows that he understood the claim, and it raised all the issues upon which he re- lied. The complaint is, indeed, a striking illustration of a defective pleading, which should be corrected by motion, and not attacked by demurrer; and the opin- ion is a clear and convincing argument showing why such a motion ought to be granted ; but it violates the liberal prin- ciple of construction, and returns to the common-law rule requiring a strict inter- pretation against the pleader. The facts and opinion in Hathaway v. Quinby, which is quite similar in its general character, and in Doyle v. Phojnix Ins. Co., may be found supra, §§ 531, 535. The following cases give further illustra- tions of the rule as stated in the text, — that defects of form merely are waived by going to trial without objection and are cured by verdict, while defects which go to the cause of action itself are not thus waived nor cured. There is not, however, an absolute unanimity on this point among the decisions ; some of them cannot be reconciled with the general cur- rent of authority, nor, in my opinion, 608 CIVIL REMEDIES. § 551. II. Redundant, immaterial, and irrelevant allegations; the mode of objecting to and correcting them. In a legal action all matter stated in addition to the allegations of issuable facts, and in an equitable action all such matter in addition to the aver- ments of material facts affecting the remedy, is unnecessary, and therefore immaterial and redundant. Whenever, therefore, the issuable facts constituting a legal cause of action, or the material facts upon which the right to equitable relief is wholly or par- tially based, are pleaded, all the details of probative matter by which these facts are to be established, and all the conclusions of law inferred therefrom, are plainly embraced within this descrip- tion. It would not be strictly correct to say that statements of evidence or of legal conclusions are, under all circumstances, redundant. If a complaint or petition should, in, violation of the principles established by the reformed procedure, allege the evi- dence of some issuable or material fact instead of the fact itself, or should state a conclusion of law in place of the proper fact or facts which support it, these averments would be irregular, im- perfect, insufficient, and liable to correction by a motion ; but they might not be necessarily redundant. If the pleading was not reformed, and if the defect was not so serious as to render it demurrable, it would be treated on the trial as sufficient; and the statement of probative matter or of legal conclusions would take the place of the issuable or material facts which ought to have been averred, and would thus become material. It is self-evident, however, that if the essential doctrines of pleading are complied with, and the proper facts constituting the cause of action, or with the letter and spirit of the codes. 173 ; Streeter «. Chicago, &c. K. R., 40 Jefferson v. Hale, 31 Ark. 286 ; People v. Wis. 294, 301 ; Univ. of Notre Dame c Sloper, Idaho U., 183; Hawse v. Burg- Shanks, 40 id. 852; Smith v. Supervisors, mere, 4 Col. 313; Eevelle's Heirs v. &c., 45 id. 686 ; Vassar jj. Thompson, 46 Claxon's Heirs, 12 Bush, 558; Thompson id. 345; Stetlon v. Chicago, &c. R. R., 49 V. Killian, 25 Minn. Ill ; Reed v. Pixley, id. 609; Gander v. State, 50 Ind. 539, 541 ; 25 id. 482 ; Chesterson v. Munson, 27 id. Green v. Louthain, 49 id. 139 ; Donellan v. 498 ; International B'k v. Franklin Co., 65 Hardy, 57 id. 393 ; Calvin o. Woolten, 69 Mo. 105 ; State o. Bartlett, 68 id. 581 ; id. 464 ; Indianapolis, &c. E. R. v. Mc- Richardson v. Hoole, 13 Nev. 492 ; City of Caffey, 72 id. 294 ; Parker v. Clayton, 72 Youngstown v. Moore, 30 Ohio St. 133 ; id. 307 ; Newman v. Perrell, 73 id. 153 ; State V. Cason, 11 S. C. 392 ; Edgerly v. Charlestown School Dist. v. Hay, 74 id. Farmers' Ins. Co., 43 Iowa, 587 ; Meyer 127 ; Smock v. Harrison, 74 id. 348 ; Lewis i;. Co. of Dubuque, 43 id. 592 ; Polster v. v. Bortsfield, 75 id. 390 ; King v. Mont- Rucker, 16 Kans. 115; Moody v. Arthur, gomery, 50 Cal. 115; Hanlin v. Martin, 16 id. 419 ; Castle v. Houston, 19 id. 417 ; 53 id. 321. Sheridan v. Jackson, 72 N. Y. 170, 172, KEDUNDANT OK IRRELEVANT ALLEGATIONS. 609 affecting the equitable relief, are all set forth, then any detail of evidence or any conclusion of law is necessarily surplusage, and redundant. An allegation is irrelevant when the issue formed by its denial can have no connection with nor effect upon the cause of action. Every irrelevant allegation is immaterial and redund- ant : but the converse of this proposition is not true ; every im- material or redundant allegation is not irrelevant. This general description can only be explained and illustrated by an examina- tion of individual cases, of which a few have been collected in the note as examples.^ § 552. The rule is established by the unanimous decisions of the courts, as well as by the provision found in the codes, that the proper and only method of objecting to and correcting re- dundant, immaterial, or irrelevant allegations in a pleading, is a motion to strike out the unnecessary matter, and not a demurrer, nor an exclusion of evidence at the trial.^ The new procedure thus furnishes, by means of these motions in cases of insuffi- ciency, redundancy, or irrelevancy, a speedy and certain mode of enforcing the fundamental doctrines of pleading what it has established, and of causing the complaints or petitions and answers to present single, clear, and well-defined issues. At the same time it prevents a sacrifice of substance to form, and a decision of controversies upon technical points not involving the merits, by requiring these objections to be taken before the trial, and by regarding them as waived if the prescribed mode of rem- edy is not resorted to. The courts have it in their power, by 1 Bowman v. Slieldon, 5 Sandf. 657, Ins. Co., 3 Duer, 680. See also the addi- 660; Fasnacht v. Stelin, 53 Barb. 650; tional ca-ses cited in the next following Hunter v. Powell, 15 How. Pr. 221 ; Fab- notes. ricotti 1. Launitz, 3 Sandf. 743. See ^ Loomis v. Youle, 1 Minn. 175; Bank v. Kitching, 7 Bosw. 664; 11 Abb. O'Connor v. Koch, 56 Mo. 253; King v. Pr. 435; Cahill v. Palmer, 17 Abb. Pr. Enterprise Ins. Co., 45 Ind. 43, 55; Hynds 196; Decker r. Mathews, 12 N. Y. 313; .-. Hays, 25 Ind. 31; Smith v. Country- Gould 0. Williams, 9 How. Pr. 51; St. man, SON. Y. 655 ; Simmons w.Eldridge, John V. Griffith, 1 Abb. Pr. 39 ; O'Connor 20 How. Pr. 309 ; 19 Abb. Pr. 296 ; Cahill V. Koch, 56 Mo. 253 ; Clague v. Hodgson, v. Palmer, 17 Abb. Pr. 196. See also 16 Minn. 329, 3-34, 335; King v. Enter- Vliet r. Sherwood, 38 Wis. 159; Magee prise Ins. Co., 45 Ind. 43, 55; Hynds v. w. Board of Supervisors, 38 id. 247 ; Biggs Hays,25Ind. 31; Booheru. Goldsborough, t. Biggs, 50 id. 443; Hoffmann v. Kop- 44 Ind. 490, 498, 499 (duplicity) ; Loomis pelkora, 8 Neb. 344; Johns v. Potter, 55 V. Youle, 1 Minn. 175 ; Clark v. Harwood, Iowa, 665 ; Cooper v. French, 52 Id. 531 8 How. Pr. 470; Edgerton ;•. Smith, 3 Schoonover v. Hinckley, 46 id. 207 Duer, 614; Sellar v. Sage, 12 How. Pr. Davis v. C. & W. W. R. R., 46 Id. 389 531; 13 How. Pr. 230; Lee v. Elias, 3 Gabe w. McGinnis, 68 Ind. 538; Harris v. Sandf. 736 ; Lamoreux v. Atlant. Mut. Todd, 16 Hun, 248. 39 610 CIVIL REMEDIES. encouraging these classes of motions, and by treating them as highly remedial and important, to shape the pleading into an har- monious and consistent system, constructed upon the few natural and philosophical principles which were adopted as its founda- tion ; or they may, on the other hand, by discouraging a resort to these corrective measures, and by treating them as idle, unneces- sary, or vexatious, suffer those principles to become forgotten, and to be finally abandoned, and may, thereby, lose all the benefits which were designed, and which could have been obtained from the reform. § 553. III. The doctrine that the cause of action or defence proved must correspond with the one alleged. The codes describe three grades of disagreement between the proofs at the trial and the allegations in the pleadings to which such proofs are directed: namely, (1) An immaterial variance, where the difference is so slight and unimportant that the adverse party is not misled thereby, and in which case the court will order an immediate amendment without costs, or will treat the pleading as though amended, permitting the evidence to be received and considered; (2) A material variance, where although the proof has some relation to and connection with the allegation, yet the difference is so substantial that the adverse party is misled by the averment, and would be prejudiced on the merits, in which case the court may permit the pleading to be amended upon terms ; (3) A com- plete failure of proof, where the proofs do not simply fail to conform with the allegation in some particular or particulars, but in its entire scope and meaning, or, in other words, the proof establishes something wholly different fi'om the allegations. In this case no amendment is permitted, but the cause of action or defence is dismissed or overruled.^ In these statutory provisions the doctrine that the proofs must correspond with the allegations is, in a somewhat modified form, united with the subject of amendment, by which the minor grades of the variance may be obviated. In the present subdivision I shall consider only the former of these two topics, and shall discuss the scope and effect of the general rule, that the cause of action, or the defence as proved, must correspond with that averred in the pleading.^ 1 See these provisions quoted supra, this rule : Bishop u. Griffith, 4 Col. 68 ; § 435. Burdsall w. MT'aggoner, 4 id. 256; Board- 2 The following cases will illustrate man r. Griffin, 52 Ind. 101; Long u.Doxey, ALLEGATIONS AND PEOOFS MUST CORRESPOND. 611 § 554. The very object and design of all pleading by the plain- tiff, and of all pleading of new matter by the defendant, is that the adverse party may be informed of the real cause of action or defence relied upon by the pleader, and may thus have an oppor- tunity of meeting and defeating it if possible at the trial. Unless the petition or complaint on the one hand, and the answer on the other, fully and fairly accomplishes this purpose, the pleading would be a useless ceremony, productive only of delay, and the parties might better be permitted to state their demands orally before the court at the time of the trial. The requirement, therefore, that the cause of action or the affirmative defence must be stated as it actually is, and that the proofs must estab- lish it as stated, is involved in the very theory of pleading. It frequently happens, however, and from the very nature of the case it must happen, that the facts as proved do not exactly agree with those alleged. To determine the effect of such a disagree- ment we must recur to the reason and object of the rule, and they furnish a certain and equitable test. If the difference is so slight that the adverse party has not been misled, but, in preparing to meet and contest the case as alleged, he is fully prepared to meet and oppose the one to be actuall}' proved, then no effect what- ever is produced by the variance ; to impose any loss or penalty on the pleader would be arbitrary and technical. In the second place, the difference, while it does not extend to the entire cause of action or defence, may be so great in respect to some of its particular material facts as to have misled the adverse party, so that his preparation in connection with that particular is not adapted to the proofs which are produced. In such circum- stances an amendment is proper because the variance is partial, but it is obviously equitable that terms should be imposed. Finally, if the divergence is total, that is, if it extends to such an important fact, or group of facts, that the cause of action or defence as proved would be another than that set up in the plead- ings, there is plainly no room for amendment, and a dismissal of tlie complaint or rejection of the defence is the only equitable result. It should be noticed that, in order to constitute this 50 id. S85; Baker v. Dessauer, 49 id. 28; son, 6 Hun, 326; Moudran v. Soux, 51 Stroup V. State, 70 id. 495 ; Jeffersonville, Cal. 151 ; Hopkins c. Oraill, 51 id. 637 ; &c. R. R. V. Worland, 50 id. 339 ; Arnold Bolen v. San Gorgonio Co., 55 id. 164 ; V. Angell, 62 N. Y. 508 ; Vrooman v. Jack- McCord v. Seale, 56 id. 262. 612 CIVIL REMEDIES. total failure of proof, it is not necessary for the discrepancy to include and affect each one of the averments. A cause of action as stated ou the pleadings might consist, say, of five distinct issuable or material facts ; on the trial four of these might be proved as laid, while one so entirely different might be substi- tuted in place of the fifth that the cause of action would be wholly changed in its essential nature. § 555. The conclusions reached in the foregoing analysis, and the reasons which support them, are fully sustained by the de- cided cases which constantly discriminate between the immaterial variance which is disregarded, and the total failure of proof which is fatal to the cause of action or defence. It is of course impossible to give any comprehensive formula which shall deter- mine these two conditions ; the scope and operation of the doc- trine can only be learned from the decisions which have applied it, of which a few are selected as illustrations. In the following instances the variance was held to be immaterial: In an action upon a written contract which was properly set out in the com- plaint except that one material stipulation was omitted, but a correct copy of it had been served upon the defendant's attor- ney.^ In an action against a city for injuries done to the plain- tiff's house and grounds by the unlawful construction of sewers, sidewalks, &c., it was held that, if the manner of constructing the works was unlawful, the failure to allege negligence in the complaint was not material, and might be either disregarded or amended at any stage of the proceeding ; ^ in an action upon a warranty given in a sale of horses, where the complaint stated in general terms that the defendant warranted them to be sound, while the proof was that he warranted them to be sound as far as he knew ; that they were unsound, and that he knew them to be so, the court saying that an amendment if necessary should be made at any time even by the appellate court ; ^ in an action upon a warranty of quality, where the complaint set forth an express warranty, and on the trial facts were proved from which a warranty would be implied ; * in ati action against two de- 1 risk V. Tank, 12 Wis. 276, 301. * Giffert v. West, 33 Wis. 617, 621 ; 2 Harper v. Milwaukee, 30 Wis. 365, Leopold v. Vankirk, 27 Wis. 152, 155; 377, 378. " The alleged variance did not s. c. 29 Wis. 548, 551. At the common change the gravamen of the action." law, this was the only mode of alleging ' Chatfieid v. Frost, 3 N. Y. S. C. 357. an implied warranty. ALLEGATIONS AND PROOFS MUST CORKESPOND. 613 fendants to recover damages for injuries done to the plaintiff's sheep by the defendants' dogs, the petition alleging that " a cer- tain pack or lot of dogs owned by the defendants worried, &c., certain sheep of the plaintiff," while the proof showed that one of the defendants owned a portion of the dogs, and the other defendant the remainder, but there was no joint ownership ; ^ in an action by a husband and wife against a husband and wife for an assault and battery by tlie female defendant upon the female plaintiff, the petition alleging that the. plaintiff Mary D. is the wife of the plaintiff, James D., and the defendant, Martha H., is wife of the defendant, Aaron H., and proof was admitted that the parties were respectively man and wife at the time of the affray;^ in an equitable action brought to set aside a conveyance of land made to the defendant, on the ground of his alleged fraud, and the plaintiff failed to make out a case of fraud, but did prove one of mutual mistake ; ^ in an action for work and labor stated in the complaint to have been done for an agreed compensation, but at the trial the plaintiff proved the value as upon a quantum meruit.* The Supreme Court of North Carolina has gone so far as to hold in one case where the complaint set up a cause of action for the conversion of chattels, and the proof at the trial showed only a liability upon an implied promise for money had and received, that the plaintiff could recover, since all distinction between forms of action had been abolished, and amendments were freely allowed.^ This decision, as will be seen, stands opposed to the whole current of authority in other States. The objection that the proof varies from the allegation must be taken at the trial ; if omitted, then it cannot be after- wards raised on appeal.^ The reason is obvious ; when made at 1 McAdams v. Sutton, 24 Ohio St. 333. 31 Ark. 155 ; Bruguer v. U. S., 1 Dacota, 2 Dailey u. Houston, 58 Mo. 361, 366. 5; McMahan u. Miller, 82 N. C. 317; 3 Montgomery v. Shockey, 37 Iowa, Gaines v. Union Ins. Co., 28 Ohio St. 107, 109; Sweezey v. Collins, 36 Iowa, 418; Sibila u. Baliney, 34 Ohio St. 399; 589, 592. Dodd v. Denney, 6 Oreg. 156; Miller >: * Sussdorf V. Schmidt, 55 N. Y. 319, Hendig, 55 Iowa, 174; Peck v. N. Y. & 324. N. J. R. E., 85 N. Y. 246; Durnford u. 5 Gates V. Kendall, 67 N. C. 241. Weaver, 84 id. 445; Thomas ti. Nelson, But see Parsley v. Nicholson, 65 N. C. 69 id. 118; Lifler v. Sherwood, 21 Hun 207, 210, which maintains the general 573; Clayes «. Hooker, 4 id. 231; Cody doctrine. "■ Bemis, 40 Wis. 660 ; Flanders v. Cot- 6 Speer v. Bishop, 24 Ohio St. 598. trell, 36 id. 564 ; GifFert v. West, 37 id. See, also, as further examples of imtna- 115; Chunot f. Larson, 43 id. 536; Rus- terial variance, Chamballe v. McKenzie, sell o. Loomes, 43 id. 545; Aschermann 614 CIVIL EEMEDIES. the trial, there is an opportunity for removing it at once by- amendment. § 556. The following are examples of a complete failure of proof. In all these cases one cause of action was alleged by the plaintiff, and another one was proved or attempted to be proved at the trial, but was rejected by the court. The New York Court of Appeals, while passing upon the admissibility of evidence which made out a liability under implied contract, in order to sustain a complaint that charged a fraudulent transaction and sought to recover the money obtained by means of such fraud, used the following language in a recent case : " It is insisted that, under the code, forms of action are abolished, and that the facts show- ing the right of action need only be stated. This is correct, but it does not aid the plaintiff. The plaintiff had a cause of action against the defendant upon an account for moneys advanced for him. Instead of stating this cause of action, the allegation is in substance that he paid him money as the price of stocks fraudu- lently sold by defendant to plaintiff, which contract has been rescinded by the plaintiff, and a return of the money demanded, which has been refused by the defendant. These causes of ac- tion differ in substance. The former is upon contract, the latter in tort ; and the law will not permit a recovery upon the latter by showing a right to recover upon the former."^ It is the set- tled rule under the codes, contrary to that prevailing in the com- mon-law system, that when a cause of action depends upon the performance of some act, but under certain circumstances the per- formance may be executed and the cause of action still remain in force, the facts showing the excuse must be alleged if the plain- tiff intends to rely upon it, and not upon the performance. The V. Wrigglesworlh, 44 id. 255 ; Union Bk. Iowa Homestead Co., 48 id. 279 ; York v. V. Roberts, 44 id. 373 ; Delaplaine v. Wallace, 48 id. 305 ; Fauble v. Davis, 48 Turnley, 45 id. 31; Eyan v. Springfield id. 462; MuKoon v. Ferguson, 47 id. 636; Ins. Co., 46 id. 671 ; Weller v. Bergenthal, Arnold v. Angell, 62 N. Y. 508 ; Harris v. 50 id. 474 ; Galloway v. Stewart, 49 Ind. Kasson, 79 id. 381 ; Stowell <-. Eldred, 39 156 ; Glasgow v. Hobbs, 52 id. 239, 242 ; Wis. 614 ; Cowles u. Warner, 22 Minn. Wright u. Johnson, 50 id. 454; Stroup u. 449; Cummings u. Long, 25 id. 837; State, 70 id. 495 ; City of Huntington v. Vrooman v. Jackson, 6 Hun, 326 ; South- Mendenhall, 73 id. 460. wick v. Fishkill Bk., 84 N. Y. 420 ; Gas- 1 Degraw v. Elmore, 50 N. Y. 1. The ton v. Owen, 43 Wis. 103 ; Streeter v. following cases give further examples of Chicago, &c. R. R., 45 id. 383; Jefferson- a material or fatal variance or a failure ville, &c. R. E. v. Worland, 50 Ind. 339 ; of proof: Bishop v. GrifEeth, 4 Col. 68; Hinkle v. San Francisco, &c. R. E., 55 Proctor i). Rief, 52 Iowa, 592; Burns o. Cal. 627 ; and cases cited ante, under § 553. ALLEGATIONS AND PROOFS MUST COEKESPOND. 615 plaintiff is no longer permitted to aver the performance of the required act, and on the trial prove the circumstances which ex- cuse such performance, or prove any other alternative than the one specially alleged. Thus where, in an action against indors- ers, the complaint stated a demand at maturity, and notice thereof to the defendants, and on the trial the plaintiff offered to prove facts which would excuse any demand, the evidence was held inadmissible, and the action was dismissed;^ and in a similar case under a statute which required that, in order to make an indorser liable, due diligence must be used by the institution of a suit against the maker, or else that such a suit would be unavail- ing, the petition alleged that due diligence had been used by com- mencing a suit against the maker, in which judgment had been recovered, and an execution had been issued and returned un- satisfied ; and it was held that the other alternative, the maker's insolvencj^ and the conseqiient unavailing character of a suit against him, could not be shown on the trial ; ^ and in a similar action against the drawer of a bill or the indorser of a bill or note, when the petition avers the demand and notice in order to charge the defendant, a waiver of these steps cannot be proved, — for example, a subsequent promise by the defendant to pay the note when the steps necessary to charge him had been omitted.^ § 557. The following are miscellaneous instances of a fatal dis- agreement between the cause of action pleaded and that proved on the trial : In an action to recover damages for trespass to lands, the complaint alleging that the plaintiffs were possessed of the premises ; on the trial, however, it appeared that they were remainder-men not yet entitled to the possession, while the de- fendants were rightfully in possession, but had committed acts of waste for which they would be liable in an action properly brought. This cause of action being wholly different from that alleged, the complaint was dismissed.* The petition in an action of forcible entry and detainer stating that the defendant was holding over after the expiration of his lease, the plaintiff was not permitted to show that he obtained possession through fraud ; since this would be the averment of one material fact, and the 1 Pier V. Heinrichoffen, 52 Mo. 333, » Lumbert v. Palmer, 29 Iowa, 104, 335. 108. See also Hudson v. McCartney, 33 2 Woolsey v. Williams, 34 Iowa, 413, Wis. 831, 346, and cases cited. 415. * Tracy v. Ames, 4 Lans. 500, 506. 616 CIVIL EEMEDIES. proof of another.' When the complaint set forth a contract, and on the trial the plaintiff proved without objection a materially different one, and was thereupon nonsuited, the nonsuit was sus- tained, the court adding that the admission of the evidence with- out objection made no difference with the operation of the rule.^ And if a complaint sets forth a cause of action for a nuisance of a certain specified kind, an essentially different one cannot be proved ; as, for example, in an action by a lower riparian owner for increasing the flow of a natural watercourse by draining other streams into it, the plaintiff was not permitted to prove a nuisance which consisted solely in the fouling of such watercourse by the defendant.^ A written contract having been set out in the peti- tion, the plaintiff cannot in place of it prove facts going to show that the defendant is estopped from denying such contract.* When a petition stated a cause of action for work and labor done by the plaintiff for the defendant, but the proofs showed that de- fendant had only guaranteed the payment by other persons for services rendered to them, a recovery was held impossible.^ An allegation that the defendant erected a fence across a highway, and thereby obstructed it, cannot be sustained by proof that the defendant built a stone fence fifteen rods from the road, and thereby caused water to flow upon and obstruct the same, for the causes of action are different ; ^ and upon an allegation that the plaintiff did work and labor for defendant on his milldam, proof that the services were performed in harvesting grain is a fatal variance.^ § 558. By far the most important distinction directly connected with this doctrine is that which subsists between causes of action ex contractu and those ex delicto. It is settled by an almost unani- mous series of decisions in various States, that if a complaint or petition in terms alleges a cause of action ex delicto, for fraud, conversion, or any other kind of tort, and the proof establishes a breach of contract express or implied, no recovery can be had, and the action must be dismissed, even though by disregarding 1 Goldsmith v. Boersch; 28 Iowa, 351, tiff wishes to avail himself of an estoppel 354. it must be speoiallj' pleaded, citing Ean- 2 Johnson y. Moss, 45 Cal. 515. som v. Stanberry, 22 Iowa, 334. 8 O'Brien ». St. Paul, 18 Minn. 176, s Packard v. Snell, 35 Iowa, 80, 82. 181. 6 Hill V. Supervisor, 10 Ohio St. 621. 4 Phillips V. Van Schaick, 37 Iowa, ' Thatcher v. Heisey, 21 Ohio St. 668. 229, 237. It was added that if the plain- ALLEGATIONS AND PEOOFS MUST COEKESPOND. 617 the averments of tort, and treating them as surplusage, there might be left remaining the necessary and sufficient allegations, if they stood alone, to show a liability upon the contract.^ While this doctrine is firmly established, and while there is no difficulty in its application, when it is once ascertained that the cause of action is for a tort, it is not so easy, in the absence of any specific tests, and in the careless mode of pleading which is too prevalent, to determine whether thp cause of action stated by the plaintiff is ex delicto or ex contractu. Under the former system, the pres- ence or absence of certain technical formulas removed all doubt ; but as these arbitrary means of distinction have been abandoned, and as pleadings frequently, in violation of true principles, com- bine charges of fraud, of guilty knowledge, of taking, carrying away, and conversion, and the like, with averments of imder- takings and promises, and their breach, it is sometimes impos- sible to decide which class of allegations constitute the gravarnen of the action, and which is to be regarded as surplusage. The decided cases will not give us much aid, for pleadings with sub- stantially the same averments have received diametrically opposite constructions. There is thus a conflict among the decisions in reference to this subject irreconcilable upon principle, and only to be evaded by pronouncing one set of them to be erroneous. Although it is simply impossible to develop any general rule of interpretation from these cases, a few are selected as examples. § 559. It may be considered a settled point on principle and on authority, that the nature of the cause of action is determined by the allegations of the complaint or petition,^ so that the in- 1 From the great number of cases 561 ; Lane «. Cameron, 38 Wis. 613 ; which maintain this doctrine I liave Pierce v. Caray, 37 id. 232 ; Goss i^. selected those which are the most recent Board of Comra'rs, 4 Col. 468 ; Neu- and important, and which discuss it with decker v. Kohlberg, 81 N. Y. 290, 299, the greatest fulness. Walter v. Bennett, 301 ; People v. Denison, 84 id. 272 ; 80 16 N. Y. 2-50 ; Ross v. Mather, 51 N. Y. id. 656 ; Neftet v. Lightstone, 77 id. 96 ; 108 ; De Graw v. Elmore, 50 N. Y. 1 ; Lockwood v. Quackenbush, 83 id. 600 ; Sager v. Blain, 44 N. Y. 445, 448 ; Moore Lindsay o. Mulqueen, 26 Hun, 485 ; Front V. Noble, 53 Barb. 425 ; Rotlie v. Rothe, v. Hardin, 56 Ind. 165 ; Hachett v. Bank 31 Wis. 570, 572 ; Anderson ». Case, 28 of California, 57 Cal. 335. These cases, Wis. 505, 508 ; Supervisors v. Decker, 30 as well as others, show that an action Wis. 624 ; Johannesson v. Borschenius, cannot be changed from tort to contract 35 Wis. 131, 135 ; Dean v. Yates, 22 Ohio by amendment at the trial. St. 388, 397 ; Watts v. McAllister, 33 Ind. 2 Welsh v. Darragh, 62 N. Y. 590. 264. See, per contra. Gates v. Kendall, 67 Although the immediate question was N. C. 241. See also Barnes v. Quigley, whether the cause was a referable one, 59 N. y. 265 ; Matthews v. Cady, 61 id. yet the reasoning and conclusion are gen- 618 CIVIL EEMEDIES. quiry need never extend beyond this first pleading in the suit. I shall first cite illustrations of causes ex contractu. In an action by a vendee to recover damages arising on the sale of a horse to him, the complaint, after setting forth the sale, and that the horse was in fact " wind-broken," stated that the defendant knew of this defect, and "fraudulently concealed the same with intent to de- ceive " the plaintiff, giving the circumstances in unnecessary detail ; and that, " further to mislead and deceive the plaintiff, the defendant falsely represented and warranted to the plaintiff that the horse was sound, &c. ; that by reason of the premises the plaintiff was deceived, and was induced to purchase and pay for the horse;" concluding with an allegation of damages and a prayer for judgment. The Superior Court of New York City held that this complaint stated a cause of action on contract for the breach of a warranty, and that all the averments of fraud must be treated as surplusage. ^ A complaint contained the fol- lowing averments : that the defendants, having in their posses- sion certain securities, the property of the plaintiff, entered into an agreement with him, whereby they promised to deliver up said securities to him ; that he had demanded the same, but the defendants wrongfully refused to deliver them, and wrongfully disposed of and converted them to their own use. The New York Court of Appeals pronounced this cause of action to be on contract, and not for a tort.^ In another quite similar case the complaint stated that the plaintiffs, at, &c., consigned to the defendants, who were commission-merchants at, &c., certain spe- eral. Some of the cases lay some stress the complaint was dismissed. The Gen- upon tlie kind of summons used as in- eral Term held that he should liave re- dieative of the pleader's intention. The covered, putting their decision upon the following are further examples of actions allegation of a warranty. As tliis aver- held to be on contract : Freer u. Denton, ment stood alone, it would seem that it 61 N. Y. 492 ; Vilmar v. Schall, 61 id. ought to have been rejected as the sur- 564 ; Graves v. Waite, 59 id. 156 ; Green- plusage. This decision, in tlie light of tree v. Rosenstock, 61 id. 583 ; Sheahan more recent ones, must be regarded as B. Shanahan, 5 Hun, 461 ; Harden v. erroneous : it is not, however, opposed Corbett, 6 id. 522 ; Loomis v. Mowry, 8 to the leading doctrine stated in the id. 311 ; Harrington v. Bruce, 84 N. Y. text. 103 ; Sparman v. Keim, 83 id. 245, 249 ; 2 Austin v. Eawdon, 44 N. Y. 63, 68, Harris v. Todd, 16 Hun, 248 ; Westcott 69. The statement of a wrongful dispo- V. Ainsworth, 9 id. 58 ; Stitt v. Little, 63 sition and conversion was said to be N. Y. 427, 432; Bishop u. Davis, 9 Hun, merely the averment of a breach. There 342. can be no doubt as to the correctness of 1 Quintard v. Newton, 5 Robt. 72. The this decision. The central fact of the plaintiii, at the trial, proved the warranty, complaint was made to be the promise, but gave no evidence of the scienter, and and the breach was inartificially charged. ALLEGATIONS AND PROOFS MUST COKRESPOND. 619 cified articles, to be sold by them, and the net proceeds thereof remitted ; that the defendants received the goods, and sold them for a sum named ; and after deducting all expenses, there was due to the plaintiffs the sum of, &c., which they demanded of the defendants, who omitted and refused to pay the same, and have converted the same to their own use, to the damage of the plaintiffs of, &c. This cause of action was also held by the same court to be on contract, and not for a tort.^ In a more recent action brought for the price of certain bonds that had been sold to the plaintiff, and which had turned out to be null and void, the claim to recover was put at the trial on the ground of implied contract, — a warranty of title. The defendant moved to dismiss the complaint, because it was based upon the theory of fraud, that its allegations were of deceit and false representations. The reporter does not think best to disclose the nature of the com- plaint, although the entire decision turned upon it. The court held that the cause of action was on contract.^ § 560. The following are instances of actions ex delicto. In a 1 Conaughty u. Nichols, 42 N. Y. 83. The complaint was dismissed at the trial, on the ground that tlie cause of action proved was on contract, while the one pleaded was for tort. This ruling was reversed, the Appellate Court saying that the single concluding averment of a con- version should be treated as surplusage. The opinion contains an elaborate discus- sion of authorities. This and the preced- ing case are substantially alike. See also Byxbie v. Wood, 24 N. Y. 607, 610, 611, in which certain averments of fraudulent practices were held to be surplusage, and the cause of action to be on contract. 2 Ledwich v. McKim, 53 N. Y, 307, 316. From an examination of the record, I am able to state the exact language of the complaint. The only allegation in- volving the question at issue is, that, on, &c., the defendants sold to the plaintiff certain bonds " purporting to be bonds of the U.S. &T. K. R. Co., and represented by said defendants to be such bonds, and to have been issued by and binding upon said R. R. Co., and that, in consideration thereof, and relying upon the representa- tions so made," the plaintiff paid the price ; that the bonds were valueless ; a demand on the defendants for a repay- ment of the price, &c. There was no averment of knowledge on the part of the defendants, nor of an intent to deceive. This certainly falls far short of the allega- tions necessary to make out a case of fraud. Folger J. said (p. 316), after re- citing the defendants' claim, and the averments of the complaint as given above : " But the summons is not for re- lief : it is for money. The complaint avers the facts which were proven, and which make out a cause of action in con- tract. The presence of the averments as to the representations, even were they averred to have been false and fraudu- lent, do not make the action one ex de- licto." The correctness of this decision is plain ; a cause of action on contract was certainly set forth, and the statements as to representations by the defendants were not sufficient to show a liability on ac- count of fraud. As to the allegations which must be made and proved in order to establish a cause of action for deceit, see Meyer v. Amidon, 45 N. Y. 169 ; Oberlander v. Spiess, 46 N. Y. 175; Marsh v. Falker, 40 N. Y. 562 ; Marshall V. Gray, 57 Barb. 414 ; Weed v. Case, 55 Barb. 584 ; Gutchess v. Whiting, 46 Barb. 139. 620 CIVIL KEMEDIES. suit growing out of the sale of a horse bought by the vendee, the complaint was, " That on, &c., at, &c., the plaintiff purchased a certain horse of the defendant for the agreed price of |120, and paid defendant said sum ; that the defendant, to induce the plain- tiff to buy the said horse, falsely and fraudulently represented the said horse worth and of the value of $120, and guaranteed the said horse to be sound in all respects, and wholly free from disease ; that said horse was not sound or free from disease, but was unsound and diseased in this (describing), which said disease was well known to defendant at the time of the sale," &c., to the plaintiff's damage, &c. This cause of action was held by the New York Supreme Court to be for deceit, and not on a war- ranty.^ The following case is even still stronger ; for although it was conceded that a contract was fully set forth in the pleading, yet the averments of fraud were held to fix the true character of the action. The claim was for damages arising from the sale of a horse, and sustained by the purchaser. The complaint alleged the sale ; that at the time thereof the horse was lame in one leg ; that defendant warranted and falsely and fraudulently repre- sented that this lameness resulted from an injury to his foot, and nowhere else ; that when his foot grew out he would be well, and that he had only been lame two weeks ; that plaintiff, rely- ing upon this warranty and representation, and believing them to be true, bought the horse, and paid the price [the represen- tations were then negatived] ; that the horse was lame in his gambrel joint, and had been so for a long time, all which the defendant, at the time of the sale and the making such warranty and representations, well knew ; that by reason of the premises the defendant falsely and fraudulently deceived him, — to his 1 Moore v. Noble, 53 Barb. 425. No distinguished in its facts from Quintard scienter was proved, and tiie plaintiff re- v. Newton, supra, and implicity oTerrules covered for a breacli of warranty. The that decision. Tlie following are addi- court, in reversing this ruling, said: tional examples of actions held to be er " That the complaint is for deceit in the delicto : Barnes v. Quigley, 59 N. Y. 265 ; sale, wilfully and knowingly perpetrated Matthews v. Cady, 61 id. 561 ; Peck v. by defendant, is manifest; to give any Root, 5 Hun, 547; Lane v. Cameron, 38 other construction would be to violate Wis. 603 ; Pierce v. Carey, 37 id. 232 ; all the rules of language and of plead- Neudecker v. Kohlberg, 31 N. Y. 296, 299, ing." Also that it was necessary for the 801 ; People v. Denison, 84 id. 272 ; 80 id. plaintiff to prove the substantial aver- 656 ; Lockwood v. Quackenbush, 83 id. ments, — the knowledge and intent, — 600 ; Stitt v. Little, 63 id. 427, 432 ; and that he could not recover on a con- Bishop v. Davis, 9 Hun, 842 ; Westcott tract of warranty. This case cannot be v. Ainsworth, 9 id. 53. ALLEGATIONS AND PEOOFS MUST COEEESPOND. 621 damage of |500. The cause of action thus stated was held to be for deceit, and not for a breach of warranty.^ § 561. The doctrine that a cause of action ex contractu cannot be proved at the trial when the complaint or petition states one ex delicto has been applied to the following classes of cases ; where the complaint alleged improper, careless, and negligent conduct, and concealment of material facts by the defendant;^ where the complaint was for the conversion of goods or moneys, and the plaintiff, at the trial, relied upon the breach of an im- plied contract for money had and received;^ where the suit was 1 Ross V. Mather, 51 N. Y. 108. At the trial the plaintiff proved a warranty, but gave no evidence tending to show any false or fraudulent representation or in- tent to deceive on the part of the de- fendant, and was permitted to recover. Hunt J., for the Court of Appeals, said : " The complaint contains all the elements of a complaint for a fraud. It must be held to be such, unless the distinction be- tween the two forms of action is at an end. While it contains all that is neces- sary to authorize a recovery upon a con- tract, it contains mucli more [reciting the allegations as above]. No allegations could have been asserted which would have more clearly constituted a casu of fraud. That there was a warranty as well as representations, or that both are alleged to have existed, does not alter the case. . . I do not find any authorities in the courts of this State which sustain the position that this complaint may be considered as an action for a breach of warranty." He then cites Moore v. Noble, supra; Marshall ti. Gray, 57 Barb. 414; McGovern v. Payn, 32 Barb. 83, all of which hold the causes of action therein stated to he fraud, and that the plaintiff must prove a scienter ; also Walter v. Bennett, 16 N. Y. 250 ; Belknap v. Sealey, 14 N. Y. 14-3, which hold that, when the complaint alleges a cause of action for a tort, the plaintiff cannot recover on con- tract, and proceeds as follows : " In the present case, the plaintiff made a state- ment of facts which did not constitute his cause of action. Thecod^never intended that a party wlio had failed in the per- formance of a contract merely should be sued for a fraud ; or that a party who had committed a fraud should be sued for a breach of contract, unless the fraud was intended to be waived. The two causes of action are entirely distinct ; and there can be no recovery as for a breach of contract when a fraud is the basis of the complaint. Conaughty v. Nichols, 42 N. Y. 83, is the only authority cited to the contrary, and it does not sustain that position." " Rothe V. Rothe, 31 Wis. 570, 572. The court further held that the rule must be applied, even though the allegations of tort failed to state a sufScient ground for a recovery, if they were enough to de- termine the nature of the cause of action. 3 Anderson v. Case, 28 Wis. 505, 508; Supervisors v. Decker, 30 Wis. 624 ; Johannesson v. Borschenius, 35 Wis. 131, 135; Walter (/. Bennett, 16 N. Y. 250. In Anderson v. Case, Lyon J. said (p. 508) : " The plaintiffs contend, however, that, although they have failed to estab- lish their right to recover in this form of action for the conversion of the property they have proved tlieir right to recover the proceeds of the sale thereof in an ac- tion for money had and received, and that therefore the verdict and judgment should not be disturbed. . . . The dis- tinction between an action for the wrong- ful conversion of property and an action for money had and received is not merely technical or formal, but is a substantial one. The former is an action ex delicto, the latter ex contractu. In the one, execu- tion goes against the body, in the other against the property only, of the defend- ant. The defendants in this action are liable to be imprisoned by virtue of an execution issued upon the judgment 622 CIVIL REMEDIES. brought to recover the possession of personal property, and the cause of action as proved was for money had and received, or money due upon a general indebtedness ;i and finally where a case of deceit and fraudulent representations was stated, and the proof established the breach of a contract.^ In addition to the general doctrine, that a party should be fully and truly apprised of the nature of the claim set up against him, there is a special reason why the plaintiff cannot recover for a breach of contract when the cause of action stated in the record is for deceit or any other tort. In many actions of tort the defendant may be taken on a body execution, issued upon the judgment ; while a simple breach of contract never exposes him to that liability. If, there- fore, a cause of action on contract could be proved and judgment thereon recovered when one for tort was alleged, the record might show a case for arrest on final process, although the issues actually tried involved po such consequence.^ § 562. I shall conclude this subdivision by quoting some pas- sages from the most able and practically instructive opinion of Mr. Chief Justice Dixon in the case of Supervisors v. Decker.* The whole theory of pleading is discussed in this elaborate judg- ment ; but it is peculiarly appropriate in connection with the subjects of insufficiency, redundancy, and immateriality of alle- gations. " It would certainljr," he said, " be a most anomalous against them; while they would not be they form no part of the cause of action, 60 liable were this an action for money and are not issuable. Where no order of had and received." The opinion of arrest has been granted in such an action, Dixon C. J. in Supervisors v. Decker is the judgment cannot be enforced by a. the most elaborate, and one of the most body execution ; and a clause in the judg- able and exhaustive discussions on the ment permitting » body execution will nature of pleading in general under the be struck out on appeal. Prouty t;. Swift, reformed system to be found in the re- 51 N. Y. 594, 601. ports. 8 This special reason for the rule is 1 Sager v. Blain, 44 N. Y. 445, 448, 450. alluded to in several of the foregoing 2 De Graw u. Elmore, 50 N. Y. 1 ; cases. Ross V. Mather, 51 N. Y. 108 ; Moore v. * Supervisors v. Decker, 30 Wis. 624, Noble, 53 Barb. 425 ; Watts v. McAllister, 626. The action was brought to recover 33 Inil. 264; Dean <;. Yates, 22 Ohio St. money of the county alleged to have been 388, 397. When a complaint sets out a converted by the defendant to his own cause of action upon contract, and not for use, he being Clerk of the Board of tort, as, for example, to recover money • Supervisors. The complaint contained had and received by the defendant to the averments of fraud, of negligence, of con- plaintiff's use, any averments as to the version, and of contract. A demurrer to nature of the defendant's employment it having been overruled, the defendant showing that it was of a fiduciary charac- appealed, ter, and the like, are wholly immaterial ; ALLEGATIONS AND PEOOFS MUST CORRESPOND. 623 and hitherto unknown condition of the law of pleading, were it established that the plaintiff could file a complaint, the particu- lar nature and object of which no one could tell, but which might and should be held good as a statement of two or three or more different and inconsistent causes of action, as one in tort, one upon a money demand upon contract, and one in equity, all combined or fused and moulded into one count, so that the defendant must await the events of the trial, and until the plain- tiff's proofs are all in, before being informed with any certainty or definiteness what he was called upon to meet. The proposi- tion that a complaint or any single count of it may be so framed with a double, treble, or any number of aspects, looking to so many distinct and incongruous causes of action, in order to hit the exigencies of the plaintiff's case or any possible demands of his proofs at the trial, we must say strikes us as something exceedingly novel in the rules of pleading. We do not think it is the law, and, unless the legislature compels us by some new statutoiy regulation, shall hereafter be very slow to change this conclusion. The defendant supposes the complaint herein to be intended to be one in trover, charging or seeking to charge the defendant with the wrongful conversion of certain moneys which came into his hands as a public officer, and which belonged to the plaintiff; and acting upon such supposition, he has demurred to the complaint as not stating facts sufficient to constitute that cause of action. In answer to this view, the plaintiffs rather concede than otherwise that the complaint is and was intended to be one in tort for the conversion ; but at the same time they insist, that, if it is not good as a complaint of that kind, it is suffi- cient as a complaint or count in an action for money had and received ; and, being sufficient for that purpose, they argue that the demurrer was properly overruled. In other words, their position is, that it is a question now open to speculation and inquiry on this demurrer, whether upon all or any of the facts stated in the complaint taken collectively or separately, or even by severing the allegations themselves so as to eliminate or dis- card certain portions of them as surplusage, a cause of action of any kind is or can be made out ; and if it be found that it can, then the demurrer should be overruled. To show that the com- plaint may be upheld as one for money had and received for the use of the plaintiff, and the action considered as one of that 624 CIVIL REMEDIES. kind, counsel gravelj' contend that the averments that the defend- ant made fraudulent representations, and acted falsely, fraudu- lently, and wrongfully in claiming and v^ithholding the moneys, and that he converted the same, &c., may be disregarded, and rejected as surplusage. § 563. " In support of this position, counsel cited several New York decisions, and some in this court where after trial and judgment^ or after issue has been taken on the merits, or after the trial has commenced and the 'plaintiff'' s case is closed, it has been held that such allegations may be disregarded. The decisions were in actions like the present, and others involving a some- what similar question under the circumstances above stated, and were made in favor of a good cause of action proved or proposed to be, and which by a fair and reasonable interpretation of the pleadings could be said to be within the scope of them, or to be fairly mapped out and delineated by the averments, so that the defendant was apprised of the demand made against him, and of the facts relied upon to establish it. The great liberality of the code and the broad powers of amendment conferred and enforced upon the courts under such circumstances are well known [citing provisions in reference to amendments, variances, and the inter- pretation of pleadings]. These provisions for the most part, if not entirely, relate to the proceedings in an action after issue joined on the merits upon or after trial, or after judgment on the merits, when the facts are made to appear, and the substantial rights of the parties are shown. They are enacted in amplifi- cation and enlargement of the rules of the common law on the same subject, by which it is well understood that there were many defects, imperfections, and omissions constituting fatal objections on demurrer, which were waived after issue joined, and a trial of verdict and judgment on the merits. The cases cited by counsel are all of them manifestly such as fall within these provisions and rules, and none of them touch or have any bear- ing upon the question or case here presented. No case arising upon demurrer to the complaint is cited, and it is believed none can be, holding any such doctrine as that contended for.^ 1 The learned judge cites the following 20 N. Y. 62; Conaughty w. Nichols, 42 cases as illustrations ; Barlow v. Scott, 24 N. Y. 83 ; Wright v. Hooker, 10 N. Y. N. Y. 40; Byxbie r. Wood, 24 N. Y. 607 ; 51; Walter v. Bennett, 16 N. Y. 250; Austin V. Rawdon, 44 N. Y. 63; Greason Stroebe v. Fehl, 22 Wis. 347; Hopkins V. Keteltas, 17 N. Y. 491 ; Emory v. Pease, v. Oilman, 22 Wis. 481 ; Tenney v. State ALLEGATIONS AND PROOFS MUST COEEESPOND. 625 § 564. " It thus appears that the authorities relied upon do not sanction tlie position that a complaint in the first instance, and when challenged by demurrer, may be uncertain and ambulatory, purposely so made, now presenting one face to the court and now another, at the mere will of the pleader, so that it may be regarded as one in tort or one on contract or in equity, as he is pleased to name it, and as the necessities of the argument may require, and, if discovered to be good in any of the phases which it may thus be made to assume, that it must be upheld in that aspect as a proper and sufl&cient pleading by the court. As already observed, the opinion of the court is quite to the con- trary. We have often held that the inherent and essential differ- ences and peculiar properties of actions have not been destroyed, and from their very nature cannot be.^ These distinctions con- tinuing, they must be regarded by the courts now as formerly ; and now no more than then, except under the peculiar circum- stances above noted, can any one complaint or count be made to subserve the purposes of two or more distinct and dissimilar causes of action, at the option of the party presenting it. If counsel disagree as to the nature of the action or purposes of the pleading, it is the province of the courts to settle the dispute. It is a question, when properly raised, which cannot be left in doubt ; and the court must determine with precision and certainty upon in- spection of the pleading to what class of actions it belongs, or was intended to belong, whether of tort, upon contract, or in equity ; and if necessary and material, even the exact kind of it within the class must also be determined.^ This is not only in harmony with the decisions above referred to, but with all the decisions of this court bearing upon the question, and we know of none elsewhere in conflict. It is in harmony with these decisions which have been made, that an application to amend should be denied which professes to entirely change the cause of action sued upon, or to Bank, 20 Wis. 152; Leonard u. Eogan, under the codes, equitable and legal re- 20 Wis. 540; Samuels v. Blanchard, 25 liefs may be granted in tlie same action. Wis. 329; Vilas v. Mason, 25 Wis. or one may be granted when the other is 310, 328. It is certain that the de- demanded: the other cases, however, cision in some of these cases is not fully sustain the position taken by the based upon the doctrine stated by the opinion. judge, — that is, upon any ground of ' Rowland u. Needham, 10 Wis. 495, amendment or of waiving the objection by 498. answering, &c. ; but it is put upon the " See Clark ;;. Langwortliy, 12 Wis. broad and fundamental principle, that, 441 ; Gillett v. Tregnnza, 13 Wis. 472. 40 626 CIVIL REMEDIES. introduce a new one of a different kind." ^ The nature of the reformed pleading and its essential principles are here stated in a most clear and accurate manner, while the description of the improper modes which prevail to such an extent in actual prac- tice is equally graphic and correct. The one explains the intent and design of the reform ; the other shows how that design has been ignored, and that intent frustrated. § 565. The new procedure, from its dread lest the proper re- quirements as to form should degenerate into mere technicalities, and from its opposition to the decision of controversies upon points not involving the merits, has made most ample and liberal provision for amendments. The sections of the codes are quoted at large in a former paragraph. ^ So far as they relate to the pleadings, amendments are separated into two general classes, — those made before the trial, and those made during or after the trial. The first of these classes is again subdivided into (1) the amendments of course, without any application to the court, which each party is allowed to make once in his own pleading within a specified time after it is filed or served ; (2) the amendments which are made by permission of the court as the result of a special motion or application for that purpose, includ- ing those which the party is generally suffered to make in his pleading after a demurrer to it has been sustained. The amend- ments of the second class are for the purpose of conforming the 1 Citing Newton o. AUis, 12 Wis. cited. Having thus laid down the gen- 378; Sweet o. Mitchell, 15 Wis. 641, eral principles, the learned judge applies 664 ; 19 Wis. 524 ; Larkin v. Noonan, 19 them to the case before him. The sum- Wis. 82; Steven.s u. Brooks, 23 Wis. mons is for relief, which indicates the 196. The opinion proceeds to show that pleader's intention to bring an action of the conclusion thus reached is in harmony tort, and not one on implied contract for with the decisions made in Scheunert v. money had and received. The complaint Kaehler, 23 Wis. 523 ; Anderson v. Case, itself is pronounced insufficient in its 28 Wis. 505; Lee u. Simpson, 29 Wis. averments; the charges of fraud and 333; Ragan v. Simpson, 27 Wis. 355; conversion are in the form of general Samuels v. Blanchard, 25 Wis. 329. It legal inferences, without the necessary also declares that in determining upon statements of facts. "A general charge demurrer the true nature of the com- that a, party acted fraudulently, falsely, plaint, its object, and what particular or wrongfully, or that he made fraudulent kind or cause of action is stated in it, the representations or statements, amounts to character of the summons may be taken nothing ; there must be a specification of into consideration in connection with the facts to justify it" (p. 634). The fore- form of the allegations in the complaint ; going quotations form a small part of and this particular conclusion is also sus- this exceedingly instructive opinion, tained by the recent decision made by 2 See supra, § 435. the New York Court of Appeals, before AMENDMENTS OF PLEADINGS. 627 pleadings to the facts which have been proved, or which are pro- posed to be proved, at the trial. They are all made by permis- sion of the court, frequently upon an oral application daring the trial or during the argument on appeal ; often by the court itself on its own suggestion. Sometimes, however, the trial is sus- pended, and the party desiring an amendment is driven to a formal motion in order to obtain it.^ It is not within the scope of this work to describe the practice in reference to amendments ; nor to discuss the particular cases in which they have been or will be allowed. I shall simply state the general principles which have governed the courts in the exercise of the discretion conferred upon them by the statute. § 566. In giving a practical interpretation to the clauses of the codes, a conflict of decision has arisen among the tribunals of the different States, and sometimes among those of the same State, which it is utterly impossible to reconcile. The rule is established by one class of cases, and prevails in certain States, that in all the voluntary amendments which a party may make as a matter of course in his own pleadings, and in all amendments before trial for which the party applies to the court by motion, including those rendered necessary by the sustaining of a demurrer to his pleading, he cannot under the form of an amendment change tlie nature and scope of his action ; he can- not substitute a wholly different cause of action in place of the one which he attempted to set up in his original pleading.^ A very different rule is laid down by another class of cases. It is settled in New York by a carefully considered decision of the 1 This particular instance strictly be- own use," and the like, were omitted, longs to the first general class, since it is The summons for relief was unchanged, virtually an amendment before the trial. The questions arose on a motion by the 2 Supervisors v. Decker, 34 Wis. defendant to take this amended complaint .S78 ; Rutledge v. Vanmeter, 8 Bush, 354, from the flies. The court held that be- 356 ; McGrath ./. Balser, 6 B. Mon. 141. fore trial the plaintiff cannot amend the In Supervisors v. Decker, a complaint complaint by changing the entire cause had been served which was in tort, and of action from one ex delicto to one ex con- which attempted to state a cause of ac- tractu. The whole subject of amendment tion for the conversion of money and was exhaustively discussed ; prior deci- things in action. A demurrer had been sions of the Wisconsin court were ad- sustained on the ground that the aver- hered to, while the New York cases ments were insuflicient, but permission which sustain another doctrine were ex- to amend was given. An amended com- pressly disapproved. It should be noticed plaint was served which was exactly the that the actual substantial cause of action same as the original, except that the alle- was unchanged ; the only variation was gations "and converted the same to his in the manner and form of its statement. 628 CIVIL REMEDIES. Court of Appeals, which overrules a number of contrary deci- sions made by inferior tribunals of that State, that a complaint may be amended voluntarily and of course, by substituting an entirely different cause of action for the one originally alleged, provided the summons continues to be appropriate. It is not necessary that the new cause of action should be of the same general nature or class as the first one ; but the plaintiff may, by omitting a cause of action substitute another in its stead of an entirelj' different class and character, if the change does not require an alteration in the summons. A like rule, it was held, also applies to answers and to defences contained therein.^ In some States this liberal interpretation of the code has been expressly extended to those amendments which require the con- sent of the court granted upon a motion, and the rule is settled that even in that class the cause of action or defence may be entirely changed.^ In respect to the amendments made at the trial, or on appeal, or by the court upon its own motion, great freedom is used, provided the parties are not misled and sur- prised, and the issues to be decided are not wholly changed. When evidence has been received without objection making out a cause of action, and especially after a favorable verdict upon such evidence, the utmost liberality is shown by the courts in conforming the averments of the pleading to the case as proved, if the ends of justice will be subserved thereby .^ The plaintiff 1 Brown v. Leigh, 12 Abb. Pr. n. s. 2 This is particularly the case in North 193 (1872). See also, to the same effect, Carolina, where the greatest liberality of Mason v. Wliitely, 1 Abb. Pr. 85 ; 4 Duer, amendment prevails. Robinson v. Wil- 611 ; Prindle v. Aldrich, 13 How. Pr. loughby, 67 N. C. 84 ; BuUard v. Johnson, 466 ; Troy and B. K. R. v. Tibbitts, 11 65 N. C. 436. In the first case the action How. Pr. 168; Watson v. Rushmore, 15 was brought to recover possession of land Abb. Pr. 51. Some of these cases apply under a deed absolute on its face (eject- tlie same doctrine to amendments made ment). The court, on appeal, held that upon motion. By this rule, an entirely this deed was in fact a mortgage, and re- new defence may be added to an answer versed a judgment obtained by tlie plain- by an amendment of course. McQueen tiff, ordering a new trial. Before the V. Babcock, 13 Abb. Pr. 268 ; 3 Keyes, second trial, an amendment was p'er- 428 ; Wyman v. Remond, 18 How. Pr. mitted changing the cause of action from 272 ; although the Court of Appeals, its original form to one for the foreclosure in Brown v. Leigh, pointed out a difference of this mortgage. between the terms of the section which 8 Supervisors v. Decker, 34 "Wis. 378 ; permits amendments of course and of Hodge v. Sawyer, 34 Wis. 397 ; Bowman that which allows amendments upon ap- v. Van Kuren, 29 Wis. 209, 215 ; Smith plication to the court before trial, yet it v. Whitney, 22 Wis. 438 ; Robinson <-. did not hold that the latter were to be Willoughby, 67 N. C. 84 ; Bullard v. any more restricted in their scope and Johnson, 65 N. C. 436 ; Dates v. Kendall, e.xtent than the former. 67 N. C. 241. ELECTION BETWEEN ACTIONS. 629 cannot, however, have his summons and complamt amended dur- ing the trial by substituting a different defendant for the single one who was sued, and who had appeared and defended. ^ § 567. Election between actions ex delicto and those ex contractu. Intimately connected with the questions last discussed, as to the proper forms of actions and the correspondence between the allegations and the proofs, is the subject indicated by this head- ing : that is, the power held by the plaintiff, under certain circum- stances, of choosing whether he will treat his cause of action as arising from tort or from contract. This right of election some- times occurs when the contract is express, — but, on account of the tortious acts of the defendant, the plaintiff may disregard it, and sue directly for the wrong. In the great majority of instances, however, the contract invoked, and made the basis of the suit, is implied. The theory of the implied promise, and its invention in order that certain classes of liabilities might be enforced by means of the action of assumpsit, have been already explained. As the fictitious promise was implied or inferred by the law from acts or omissions of the defendant which created a liability ex cequo et bono, it sometimes happened that these acts or omissions were tortious in their nature. In such a case, therefore, the liability could be regarded in a double aspect ; namely, as directly springing from the tort committed by the wrong-doer, or as aris- ing from the promise to make compensation which the law im- 1 Little V. Virginia, &c. Water Co., 9 36 id. 564 ; Tormey w. Pierce, 49 Cal. Nev. 317. Tlie reporter's head-note is 306; Blood u. Fairbanks, 48 id. 171 ; Lott- mucli broader than the decision actually man v. Barnett, 62 Mo. 159 ; Jeffree v. made, and is manifestly erroneous. The Walsh, 14 Nev. 143 ; Comm'rs v. Blair, following cases illustrate the general 76N. C. 136; Scott t). Co. of Chickasaw, rules concerning amendments, and the 54 Iowa, 47 ; Spink v. McCall, 52 id. 432 ; extent to which amendments are per- Newell v. Mahaska Co. Sav. Bk., 51 id. mitted. . It seems to be settled by a very 178 ; Peck v. Shick, 50 id. 281 ; Ham- decided preponderance of authority that mond o. S. C. & P. K. R., 49' id. 450; amendments at the trial cannot change O'Connell v. Cotter, 44 id. 48 ; Hobson v. the nature of the cause of action or of the Ogden's Ex'rs, 16 Kans. 388 ; Beyer v. defence ; but that the court may at its Reed, 18 id. 86 ; Leavenworth, &c. R. R. discretion permit amendments on motion v. Van Riper, 19 id. 317 ; Harris v. Turn- before trial which change the cause of bridge, 83 N. Y. 92, 97 ; Reeder v. Sayre, action or defence, add a new cause of 70 id. 180; Weston v. McMullin, 42 Wis. action or defence, and the like (see ad- 567 ; Tanguay v. Telthouser, 44 id. 30 ; ditional cases cited under § 558). John- Tewsbury v. Bronson, 48 id. 581 ; Graham son V. Filkington, 39 Wis. 62 ; Vliet v. v. Cliicago, &c. R. R., 49 id. 532 ; Oro Sherwood, 38 id. 159; Spinners v. Brett, Tino Min. Co. v. CuUen, Idaho R. 113; 38 id. 648; North West. Union P. Co. v. Read v. Beardsley, 6 Neb. 493; Page v. Shaw, 37 id. 655 ; Flanders v. Cottrell, Williams, 54 Cal. 562. 630 CIVIL BEMEDIES. plied and imputed to him. As the single liability thus resulting from the given acts or omissions was considered under these two different aspects, the common law provided two distinct means or instruments for enforcing it, — one by the form of action appro- priate for the recovery of damages from the tort, the other by the form of action appropriate for the recovery of damages from the breach of an implied promise. In what instances — that is, in what classes of tortious acts or omissions — the right of action existed had been determined by the courts, although there was not a complete uniformity of decision among the tribunals of the several States. § 568. The doctrine of electing between an action ex delicto and one ex contractu, or, to speak more accuratel}', between treat- ing the cause of action as arising from tort or from contract, has been retained under the new procedure ; and it is applied in the same classes of cases, and is governed by the same general rules, as in the former system. The courts, without, perhaps, appre- ciating the full extent of the changes, and the effect of abolishing all distinctions between forms of actions, decided that the power of choice between the two modes of enforcing demands, of waiv- ing the tort and suing upon an implied promise, still exists ; and these early decisions have been followed by so many others without an expression of dissent, that the rule is as firmly estab- lished in the reformed as it was in the common-law pleading. The single principle upon which the entire doctrine rests is very simple, and should — and would, if the courts were always con- sistent in acting upon it — afford a ready and plain solution of every question, new or old, which can be suggested. This single principle may be thus formulated : From certain acts or omis- sions of a party creating a liability to make compensation in damages, the law implies a promise to pay such compensation. Whenever this is so, and the acts or omissions are at the same time tortious, the twofold aspect of the single liability 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 the law. It should be remembered that different promises may be inferred from different acts or omis- sions : thus, in one case, the promise might be to ^a,j over money ELECTIOi^ BETWEEN ACTIONS. 631 had and received to the use of the injured party ; and in another, where no money had been actually received, the implied under- taking might be that the wrong-doer would pay the value or price of goods taken by him. This distinction, so palpable and commonplace, seems to have been overlooked in some classes of decisions. § 569. Having thus formulated the general principle which prevailed in the former procedure, and which has been adopted to its full extent in the present, I shall, in its further illustration, state the various classes of cases to which it has been applied by the courts, and shall thus ascertain the particular instances — the kinds of wrongful acts and omissions — in which the right of election exists. To this will be added a few observations upon the mode of indicating the fact that an election has been made by the pleader, that a tort has been waived, and a cause of action upon contract has been chosen. The most common classes of tortious acts, in respect of which the right of election has been invoked, are the wrongful taking or conversion of chattels, or things in action, or money ; the wrongful use of lands, and ap- propriation of its rents and profits ; sales of goods on a credit procured by the fraud of the purchaser ; frauds and deceits generally by which money or things in action, or chattels, are obtained ; and certain cases of express contract, in which, from the policy of the law, the liability is regarded as resulting from a violation of general duty as well as from a breach of the stipu- lations of the agreement. These classes will be considered sepa- rately. It is a firmly established rule, from which no dissent has been suggested, that when goods or things in action have under any circumstances been wrongfully taken or detained or con- verted, and have been sold or disposed of by the wrong-doer, the owner may sue in tort to recover damages for the taking and carrying away or the conversion, or he may waive the tort and sue on the implied promise to refund the price or value as money had. and received to the plaintiff's use.^ When, however, the chattels or things in action have been simply taken or converted, 1 MoKnight v. Dunlop, 4 Barb. 36, 42 ; Evans, 43 Cat. 380 ; Gordon v. Bruner, Hinds V. Tweddle, 7 How. Pr. 278, 281 ; 49 Mo. 570, 571 ; Putnam «. Wise, 1 Hill, Harpending v. Shoemaker, 37 Barb. 270, 234, 240, and the reporter's note ; Berly 291 ; Chambers v. Lewis, 2 Hilt. 591 ; v. Taylor, 6 Hill, 577, 584, and the re- Leach V. Leach, 2 N. Y. S. C. 657 ; Tryon porter's note. V. Baker, 7 Lans. 511, 514; Roberts v. 632 CrVIL REMEDIES. but not sold or disposed of by the wrong-doer, a conflict of opinion exists in respect to the power of the plaintiff to elect between the two forms of action. Certain cases deny this power. This ruling is rested upon the ground that the goods remaining in the hands of the wrong-doer, and no money having in fact been received by him, an imphed promise to pay over money had and received by the defendant to the plaintiff's use does not and cannot arise.^ In this country, however, the weight of authority is strongly the other way. The cases generally admit an elec- tion, under the circumstances described, between an action based upon the tort, and an action based upon the implied promise to pay the price or value of the goods. The tort is waived, and the transaction is treated as a sale, and not as an instance of money had and received. This distinction is certainly supported by the plainest principles, if the doctrine of implied promises and elec- tion is to be admitted at all.^ If money has been converted, the 1 McKnight v. Dunlop, 4 Barb. 36, 42 ; Henry u. Marvin, 3 E. D. Smith, 71; Tryon v. Balier, 7 Lans. 511, 514. 2 Hinds !'. Tweddle, 7 How. Pr. 278, 281 ; Cliambers v. Lewis, 2 Hilt. 591 ; Putnam v. Wise, 1 Hill, 234, 240 (and see note of the reporter) ; Berly o. Taylor, 5 Hill, 577, 584 (and note of the reporter) ; Eoberts v. Evans, 43 Cal. 380; Gordon V. Bruner, 49 Mo. 570, 571. In the last case, goods had been carried away and converted by the defendant. The court, by Bliss J., said : " It is not disputed, that when there is a conversion of per- sonal property, and that property has been sold and converted into money, the owner may ratify the sale by suing the wrong-doer as for money had and re- ceived to his use ; but when the property has not been sold, but still remains in the hands of the wrong-doer, there is a differ- ence of opinion ; and there have been conflicting decisions whether the owner may waive the tort, and sue for goods sold and delivered. In Massachusetts, in Jones o. Hoar, 5 Pick. 285, to which there is a note to a former opinion re- viewing the English cases, it was held that no contract could be implied unless tlie goods were sold and converted into money, and the same doctrine was held in Pennsylvania, in Willett v. Willett, 3 Watts, 277, and in Morrison u. Rogers, 2 111. 317. But such has not been the uni- form ruling. In Putnam v. Wise, 1 Hill, 240, the court holds that, "according to the welt-known right of election in such cases, the plaintiff miglit have brought ' assumpsit ' as for goods sold and deUvered against those who had tor- tiously taken their property." To this the reporter, Mr. Hill, adds a note, re- viewing the cases, and disapproving the doctrine of Jones v. Hoar. (See Hill v. Davis, 3 N. H. 384 ; Stockett v. Watkins's Administrator, 2 Gill & J. 326, and cases cited.) Quoting early Missouri decisions to the same effect, — Floyd v. Wiley, 1 Mo. 430, 643 ; Johnson u. Strader, 3 Mo. 359, — the learned judge adds: "It may be treated, then, as the doctrine in this State, 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, will not be permitted to say in defence that he obtained it wrong- fully." See also, Small v. Robinson, 9 Hun 418 ; Cusliman v. Jewell, 7 id. 525, 530 (an unsupported dictum) ; Loomis v. Mowry, 8 id. 311; Freer v. Denton, 61 N. Y. 492; Fields v. Bland, 81 id. 239; Comstock !... Hier, 73 id. 269 ; Kalckhoff V. Zoehrlaut, 40 Wis. 427 ; Chamballe v. McKenzie, 31 Ark. 155 ; Huston v. Plato, 3 Col. 402 ; Brady v. Brennan, 25 Minn. 210 ; Logan v. Wallis, 76 N. C. 416 ; and see ante, § 493 and cases cited. ELECTION BETWEEN ACTIONS. 633 right of election exists under the operation of either rule, since the actual receipt of money by the defendant brings the case exactly within the reason and operation of the doctrine as first stated.! The same choice between the actions may sometimes be possible when the liability is connected with a claim to land or grows out of its use, although the instances are much fewer than those of the preceding class. Thus, when the owner agreed to lease certain premises to the plaintiff for a term of years com- mencing at a future day named, but before that day actuall}^ leased them to another person who took possession, and when the time arrived the plaintiff demanded possession, tendered the rent, and on refusal brought an action for damages, it was objected on the trial that his only remedy was ejectment against the tenant in possession. The court held, that, while the plain- tiff might have maintained ejectment, he could also bring an action against the lessor, which could be either upon the agree- ment express or implied, or in tort for the violation of the duty arising from the relation of lessor and lessee between the par- ties.^ It is settled in Wisconsin, after a careful consideration and an exhaustive analysis and comparison of the conflicting deci- sions, that when the defendant had committed a wilful trespass upon the plaintiff's land by deliberately turning his cattle thereon, in order that they might feed upon the grass, the plaintiff might waive the tort, and sue upon an implied contract for the price and value of the pasturage.^ § 570. It is a familiar rule, that the action against a common carrier for a loss or injury of goods may either be in tort for the violation of his general duty, or on the contract which he ex- 1 Tryon v. Baker, 7 Lans. 511, 514. right or claim to real estate, or to its pos- 2 Trull 1^. Granger, 8 N. Y. 115. On session, or to its rents and profits. Car- the other hand, wlien a complaint alleged penter i,'. Stilwell, 3 Abb. Pr. 459. This that the plaintiff was the owner and en- was a Special Term decision, and does titled to the possession of certain premises, not, therefore, have much authority as that the defendant took possession thereof a precedent. under a void deed, and leased them, and » Norden v. Jones, 33 Wis. 600, 604, has received the rent arising from such 605. The opinion of Di-xon C. J. is a full letting, and demanded judgment for the and most instructive examination of the amount so received, the court held that doctrine. It rejects the narrow rule which there was no power to waive the tort, confines an election to the single case and sue on contract for money had and where the wrong-doer has actually re- received; that the doctrine of election ceived money, and accepts the broad did not extend so far as to allow the principle that the election may be had plaintiff to try, under the form of an whenever a promise is implied, action for money had and received, a 634 CIVIL REMEDIES. pressly or impliedly enters into. The owner has his election which of these remedies he will pursue ; but his choice cannot alter the extent of the carrier's liability.^ Fraud in its various phases also furnishes many occasions and opportunities for the exercise of an election between actions. One of the most com- mon is the case of a sale upon a credit procured by the false and fraudulent representations of the vendee as to his pecuniary responsibility. Upon discovering the fraud, even before the expiration of the credit, the vendor may rescind the sale, and immediately bring an action in form of tort either to recover the goods themselves, or damages for their taking and conversion ; or he may waive the tort, and sue at once on contract for the price.^ And when money has been obtained by false and fi-audulent representations, or by fraudulent practices of any kind, the plaintiff has the option to sue either in tort for the deceit, or in contract for money had and received by the defendant to his use.^ 1 Campbell v. Perkins, 8 N. Y. 430. 438 ; Brown v. Treat, 1 Hill, 225 ; People V. Kendall, 25 Wend. 399; Wallace v. Morss, 5 Hill, 391 ; Campbell o. Stakes, 2 Wend. 137. 2 Roth V. Palmer, 27 Barb. 652, and cases cited ; Kayser u. Sichel, 34 Barb. 84 ; s. o. on app. sub nom. Wigand u. Sickel, 3 Keyes, 120, approving Both v. Palmer. See Claflin v. Taussig, 7 Hun, 223; National Trust Co. v. Gleason, 77 N. Y. 400. 3 Byxbie v. Wood, 24 N. Y. 607, 610, Union Bank v. Mott, 27 N. Y. 633, 636. In the first of these cases, objection was taken that the cause of action was for a tort, — deceit. The court, after stating the facts as found on the trial, which . placed the recovery upon the defendant's implied contract to refund money which he had obtained by fraudulent practices, proceed as follows : " This state of facts does not necessarily require an action to be brought for the tort. Such facts al- ways raise in law the implied promise which was the contract-cause of action in indebitatus assumpsit for money had and received. Having money that righfully belongs to another creates a debt; and wherever a debt exists without an ex- press promise to pay, the law implies a promise, and the action always sounds in contract." On the other hand, in Union Bank v. Mott, where two defendants had, through fraudulent collusion with its offi- cers, overdrawn a large sum of money from the bank, and insisted that the ac- tion brought against them was necessarily on contract, and was therefore joint, and could not be revived against the executors of one of them who had died, the court said, per S. L. Selden J. ; " The plaintiff 's counsel, however, insists — and, I think, correctly — that the basis of the action is tort, and not contract express or implied ; that its object is not torecover for money had and received by the defendants to plaintiff's use, thus waiving the tort, but to obtain a judgment for the damages which the plaintiff has sustained through the fra)idulent conduct of the defendants." The liability was therefore declared to be several. It will be noticed that these two cases were alike in all their essential facts, and that, in one of them, the tort, was held to have been waived, and in the other not to have been waived ; and this distinction was, in fact, made, not upon any difference in the allegations, but be- cause it subserved the ends of justice, and defeated an objection of mere form. A peculiar instance of fraud was presented ELECTION BETWEEN ACTIONS. 635 § 571. The conflict which has existed to a certain extent among the decisions in reference to the right of election, and the classes of tortious acts and omissions embraced within it, can only be put to rest by determining with certainty the occasions and cir- cumstances in which a promise will be implied by the law. It is very clear that whenever the promise will be implied, if the acts or omissions from which it is inferred are at the same time tortious, the election to sue for the tort or for a breach of the contract must necessarily exist, or else it must be denied on some mere arbitrary and insufficient ground. The whole discussion is thus reduced to the single question. When is a promise implied by the law ? The comprehensive principle which furnishes a definite answer to this inquiry, applicable to all circumstances and relations, has been well stated by the courts in the following terms : " When a promise is implied, it is because the party intended it should be, or because natural justice plainly requires it in consideration of some benefit received." ^ It was also said by a very able English judge, that " no party is bound to sue in tort, when by converting the action into an action on contract he does not prejudice the defendant ; and, generally speaking, it is more favorable to the defendant that he should be sued in con- tract." 2 If these quotations are correct statements of the general principle it is plain that the rule maintained hy some decisions, which would restrict the right of election to those cases in which in the recent case of Booth v. Farmers' raent, which otherwise might and would and Mech. Bank, 1 N. Y. S. C. 45, 49. have been collected, and has sustained The complaint contained two distinct damage to the amount of |3,500. The causes of action. The first alleged that, second cause of action was for money had in 1860, the defendant recovered a judg- and received. In answer to a demurrer raent for |3,500 against a certain person on the ground tliat causes of action had named, which was properly docketed ; been improperly united, the plaintiff that, in 1861, the defendant, for a valua- claimed that he had waived the tort in ble consideration, assigned said judgment the first count, and had sued on an im- to the plaintiff"; that, after the docketing plied contract. The court, while conced- of said judgment, the debtor owned land ing that the tort might be waived, and in the county where it was docketed the right of action be placed upon the im- more than sufficient in value to have sat- plied promise, held that there had, in fact, isfled it, and upon which it was a lien ; been no such waiver, but that the first that, in 1864, the defendant, without au- count was in tort. See the opinion of thority, discharged said judgment, where- Mullin J., given in full, supra, § 539. by the lien of the judgment was lost, and i Webster v. Drinkwater, 5 Greenl. the debtor was able and did convey the 322; also per Beardsley J. in Osborn «. said land to bona fde purchasers ; that Bell, 5 Denio, 370. the judgment debtor is now insolvent ; 2 Young v. Marshall, 8 Bing. 43, per wherefore the plaintiff has lost said judg- Tindal C. J. 636 CIVIL EEMEDIES. the wrong-doer has actually received money equitably belonging to the plaintiff, is erroneous.^ § 572. The foregoing examples sufficiently illustrate the scope and extent of the doctrine under consideration, and the class of liabilities to which it is applied. Ifc remains to inquire how, under the new procedure, the plaintiff shall indicate in his plead- ing the fact that he has actually made his election, and has brought his action in tort or on contract, as the case may be. Under the old sj'stem no such question could arise. The elec- tion was disclosed by the form of the action itself. If the liability was to be treated as arising from contract, assumpsit was of course the action selected ; if from tort, trover or case or re- plevin, or sometimes trespass, were the proper instruments. Since these forms have been abolished, and all the technical phrases which distinguished one proceeding from another are abandoned, it is only by the substantial nature and contents of the allegations themselves — the facts which they aver — that the election can, if at all, be now indicated. In other words, as the pleader can express his design by means of no arbitrary sym- bols in the complaint or petition, he must show that he has chosen to sue either in tort or on contract by the very substance of the averments which constitute the cause of action. In a recent case the New York Supreme Court proposed a certain test, and declared that when the plaintiff claims to have waived the tort, and to have sued upon an implied contract, the only possible mode of showing this election is by expressly alleging a promise to have been made by the defendant ; that in no other manner can the design of making the action one ex contractu^ and of distinguishing it from one ex delicto, be disclosed on the face of the pleading.^ It has already been shown that this conclusion is directly opposed to the fundamental principles of the reformed pleading, and that it is a return to the most technical and purely 1 It was said by Hogeboom J., while Denio, 370 ; Camp v. Pulrer, 5 Barb. 91 ; commenting upon this narrow rule in Butts o. Collins, 13 Wend. 139, 154; Roth V. Palmer, 27 Barb. 652: "Our Lightly o. Clouston, 1 Taunt. 113; Hill courts recognize no such distinction, o. Perrott, 3 Taunt. 274 ; Young v. Mar- They allow the election in all cases shall, 8 Bing 43. where the plaintiff would hare been al- 2 Booth v. Farmers' and Mech. Bank, lowed to pursue his remedy in tort." See 1 N. Y. S. C. 45, 49. See the complaint also the following cases : Centre Turn- given supra in note to § 570, and the pike Co. V. Smith, 12 Vt. 217 ; Cummings opinion of MuUin J., swpra, § 539. V. Vorce, 3 Hill, 282 ; Osborn u. Bell, 5 ELECTION BETWEEN ACTIONS. 637 fictitious dogmas and distinctions of the common-law system. It is also opposed to decisions and judicial dicta in relation to this very question which declare that such a mode of stating the cause of action is inadmissible, and that the facts alone which constitute it must be averred as they actually took place. ^ § 573. Whenever the contract relied upon is express, there can be no difficulty in showing the election upon the face of the pleading. If the plaintiff chooses to bring an action ex contractu, his complaint or petition will simply state the terms of the agree- ment, and the facts which constitute the breach thereof. If he chooses to bring an action ex delicto for a violation by the defend- ant of his general duty, his complaint or petition will set out the facts showing his own primary right and the defendant's duty, disregarding the contract, and will then allege the tortious acts or omissions by which that right and duty were violated. Although the same actual transaction between the parties would be stated in either case, the form and manner of the statement would be entirely and plainly different. An ordinary claim against a com- mon carrier for the loss of goods furnishes a familiar example of these two modes. But when the contract relied upon is implied, and is simply the fictitious promise which the law infers from the tortious acts themselves, it may be doubted whether it is pos- sible, in accordance with the true principles of the reformed pleading, to frame a complaint or petition in all cases which shall show on its face that the plaintiff has elected to bring his action either in tort or on contract. In one class of liabilities it is cer- tainly possible to do so ; namely, in those which result from the defendant's fraudulent representations and deceits. The allega- 1 Byxbie v. Wood, 24 N. Y. 607, 610 ; out from the remedy which his facts Chambers v. Lewis, 2 Hilt. 591. The would give him." As the court were facts of Byxbie v. Wood were stated, and here discussing the doctrine of election, an extract from the opinion was given in and as they lield that the complaint the note to § 270. Immediately following stated a cause of action on contract, and the language there quoted, the learned not one in tort, although no promise was al- judge proceeds as follows: "Under the ^ei/et/, this language, and the decision upon code, this implied promise is treated as a it, are entirely inconsistent with the posi- flction, and the facts out of which the prior tion taken, and the test suggested by the law raised the. promise are to he stated with- Supreme Court in Booth v. Farmers' and out any designation of a form of action ; and Mech. Bank. In Chambers v. Lewis, the the law gives such judgment as, being court simply said that whether a waiver asked for, is appropriate to the'facts. Of has been made must now be shown by course we cannot how say that a particular the facts averred in the complaint and by phrase makes n particular form of action, so the prayer, that a party, by its use, may shut himself 638 CIVIL REMEDIES. tion of a scienter is indispensable in the action ez delicto based upon such a liability, and distinguishes it in a marked manner from the correlative action based upon the implied promise. But when the liability results from the wrongful taking or conver- sion of chattels, from trespasses, negligences, or other similar kinds of wrongs, the very facts which are alleged in the action of tort are the facts from which the promise is inferred ; and, according to the true theory of pleading, these facts must also be stated in the action ex contractu, without any legal inferences or conclusions. It conclusively follows, that, in this general class of liabilities, as the facts which constitute the cause of action are the same in each, the averments of the complaint or petition must be the same in each kind of action, if the essential principles of the reformed system are complied with, so that it is impossible to indicate upon the face of the pleading alone the election which the plaintiff has made. The form of summons adopted would therefore seem to be the only certain test, in this class of cases, by which the nature of the action can be deter- mined, and the fact of an election can be made known to the adverse party. The only other alternative is, to insert in the complaint certain legal conclusions or descriptive phrases which, in reference to the statement of the cause of action, are purely immaterial and redundant. SECTION FOURTH. THE FORM OF THE COMPLAINT OR PETITION. § 574. Having thus discussed and determined the fundamental principles and general doctrines of the reformed pleading, which apply to all causes of action, and to all defences by way of con- fession and avoidance or of aflSrmative relief, I shall now brie% consider the rules which pertain to the form of the complaint or petition, and which regulate the manner of stating and arranging its allegations. These rules are few and simple ; and their object is to render the issues single and certain, and to present the cause of action for a decision upon its merits, and not upon any technical, incidental, or collateral questions. In one impor- tant feature the new system stands in marked contrast with the FORM OF THE COMPLAINT OK PETITION. 639 old, — the entire absence of all special phrases or formulas by which the kinds of actions are distinguished, or by which the pleadings or any parts of them are characterized. § 575. When a complaint or petition contains two or more causes of action, all the codes require that they shall be dis- tinctly and separately stated and numbered ; and the method by which a violation of this requirement is to be corrected has already been explained.^ It is a settled rule, that if the pleading is of this kind, each separate division or count must be complete by itself, and must contain all the averments necessary to a perfect cause of action. Defects and omissions in one cannot be supplied by the allegations found in another ; nor can the pleader, by merely referring to material facts properly set forth in a former count, incorporate them into and make them part of a subsequent one. In other words, all the issuable or material facts constituting the ground for a recovery must be stated in each cause of action, even though some repetition might thereby become necessary. This requirement, however, applies only to the material and issuable facts which constitute the cause of action. Matter which is simply introductory or by way of in- ducement, and not part of the gravamen, after having been once set out at the commencement of the pleading, need not be repeated in each paragraph, but should be referred to merely. And this introductory matter includes all descriptions of the character, capacity, or particular right in respect of which the plaintiffs and defendants are made parties to the action, as executors, trustees, public officers, and the like. These and similar statements prop- erly form the commencement or introduction of the complaint, distinct from the several causes of action, and equally appHcable to all of them. Whenever, therefore, a cause of action is at- tacked by a demurrer directed either against it alone or against the entire pleading, it must stand or fall by its own averments, and cannot be helped out by any facts, however suflficient in themselves, alleged in another paragraph or count.^ But the par- 1 See supra, §§ 447, 450. Ind. 416 ; Mason v. Weston, 29 Ind. 561 ; 2 Abendroth v. Boardley, 27 Wis. Day v. Vallette, 25 Ind. 42 ; Leabo v. 555 ; Durkee v. City Bank, 13 Wis. 216, Detrick, 18 Ind. 414 ; National Bank v. 222 ; Curtis v. Moore, 15 Wis. 134 ; Sabin Green, 33 Iowa, 140 (answer) ; Silvers V. Austin, 19 Wis. 421, 423; Catlin v. u. Junction R. R., 43 Ind. 4.35,446 (reply). Pedrick, 17 Wis. 88, 91 ; Barlow v. Burns, See also Scott v. Robards 67 Mo. 289; 40 Cal. 351, 353; Potter v. Earnest, 45 State v.Y.3. S. M. Co., 14 Nev. 220 ; Bird- 640 CrVIL REMEDIES. ticular sum of damages claimed in each cause of action need not necessarily be given at its close ; it is suflScient if the aggregate amount is alleged and demanded at the end of the complaint.^ § 576, Since the reformed pleading requires the facts to be averred as they actually took place, it does not in general permit a single cause of action to be set forth in two or more different forms or counts, as was the familiar practice at the common law. The rule is undoubtedly settled, that, under all ordinary circum- stances, the plaintiff who has but one cause of action will not be suffered to spread it upon the record in differing shapes and modes, as though he possessed two or more distinct demands ; and when he does so without special and sufficient reason, he will be com- pelled, either by a motion before the trial or by an application and direction at the trial, to select one of these counts, and to abandon the others. It is certain that different causes of action in the complaint or petition must, as a general rule, imply as many distinct causes of action actually held" or claimed to be held by the plaintiff.^ It cannot be said, however, that this rule is absolutely inflexible. As it is one of convenience simply, it must sometimes yield to the demands of justice and equity. Un- der peculiar circumstances, when the exact legal nature of the plaintiff's right and of the defendant's liability depends upon facts in the sole possession of the defendant, and which will not be developed until the trial, the plaintiff may set forth the same single cause of action in varied counts and with differing aver- ments, so as to meet the possible proofs which will for the first time fully appear on the trial. This proposition is plainly just and right, and is sustained by the authority of able courts.^ sail 0. Birdsall, 52 Wis. 208 ; McCarnan McCauley, 9 Abb. Pr. 159 ; Sipperly v. V. Cochran, 57 Ind. 106 ; Killian v. Eigen- Troy and B. R. R., 9 How. Pr. 83 ; Hill- man, 57 id. 480 ; Barnes v. Stephens, 62 man v. Hillman, 14 How. Pr. 456 ; id. 226 ; Pennsylvania Co. ii. Holdprman, Churchill v. Churchill, 9 How. Pr. 552 ; 69 id. 18; Haskell o. Haskell, 54 Cal. Ford u. Mattice, 14 How. Pr. 91; Dun- 262 ; Sharp v. Miller, 54 id. 329 ; as to ning v. Thomas, 11 How. Pr. 281. what are not separate causes of action, so ^ Whitney v. Chicago, &c., N. W. R. R., that they may be stated in one count, see 27 Wis. 327, 340-342. The plaintiff had Rayan v. Day, 46 Iowa, 239 (two promis- shipped wool on defendant's road for sory notes, serf qn.) ; State v. Milwaukee, Chicago, and it was never delivered. He &c. R. R., 44 Wis. 579 (distinct grounds did not know whether it had been lost in of forfeiture). the transit, or had been burned at a fire 1 Spears v. Ward, 48 Ind. 541. which had consumed defendant's ware- 2 Sturges V. Burton, 8 Ohio St. 215 ; house in Chicago. He therefore set forth Muzzy V. Ledlie, 23 Wis. 445 ; Lackey in his complaint two distinct causes of V. Vanderbilt, 10 How. Pr. 155; Nash v. action — (1) against the defendant as a FORM OF THE COMPLAINT OR PETITION. 641 § 577. When a complaint or petition contains two or more dis- tinct causes of action, a demurrer to it as a whole, or to all or some of the causes of action jointly, must fail and be overruled if any one of the separate causes of action included in the demurrer is good ; and the same rule applies to separate defences in an an- swer.i The defendant should never demur to an entire complaint or petition consisting of several distinct causes of action, nor to two or more causes of action jointly, unless he is certain that they are all insufficient ; and, under all circumstances, it is the better and safer practice to demur in express terms to each separately, for each will then stand or fall upon its own merits.^ The same rule also applies to a demurrer for want of sufficient facts by two or more defendants jointly ; it will be overruled as to all who unite in it if the complaint or petition states a good cause of ac- tion against even one of them.^ A different rule, however, pre- vails in some States.* common carrier, and (2) against defend- ant as a wareiiouse-man — for the negli- gent loss of the goods. This manner of pleading was held proper under the cir- cumstances, and the plaintiff could not be compelled to elect on the trial. The sub- ject is exhaustively discussed by Dixon C. J., pp. .340-342. See also Smith u. Douglass, 15 Abb. Pr. 266 ; Jones v. Palmer 1 Abb. Pr. 442. And as further examples, Van Brunt v. Mather, 48 Towa, 503; Pierson v. Milwaukee, «Stc. R. B., 45 id. 239; Supervisors v. O'Mally, 4C Wis. 35. 1 Curtis V. Moore, 15 Wis. 134; Jef- fersonville, &c. R. R. v. Vancant, 40 Ind. 2.33 ; Heavenridge v. Mondy, 34 Ind. 2fi ; Hale V. Omaha Nat. Bank, 49 N. Y. 626, 680 ; Ward u. Guyer, 3 N. Y. S. C. 58 ; Silvers v. Junction R. R., 43 Ind. 435, 442- 445. In the last case the question arose on a reply which contained several para- graphs or defences. The defendant de- murred as follows : " Now comes the de- fendant, and demurs to the second, third, and fourth paragraphs of the plaintiff's reply, upon the following grounds : First, said second paragraph does not state facts sufficient, &c. ; second, said third para- graph does not state facts, &c. ; third, said fourth paragraph does not," &c. This demurrer was held to be joint, and not several ; and the rule of the text was en- 41 forced. The opinion carefully discusses the question, what language makes a de- murrer or an answer joint, and what sev- eral, citing on this topic Lane v. State, 7 Ind. 426 ; Earner v. Morehead, 22 Ind. 354 ; Jewett v. Honey Creek Draining Co., 39 Ind. 245 ; Parker ;;. Thomas, 19 Ind. 213 ; Fankboner v. Fankboner, 20 Ind. 62 ; Aiken v. Bruen, 21 Ind. 137 ; Hume V. Dessar, 29 Ind. 112. The follow- ing cases are further illustrations of both branches of the rule, — a demurrer to all the causes of action or defences, and a de- murrer by the defendants jointly. Collier t;. Erwin, 2 Mont. 335 ; Dann v. Gibson, 9 Neb. 513 ; Hyde v. Supervisors, 43 Wis. 129; American, &c. Co. v. Gurnee, 45 id. 49 ; Lamon v. Hackett, 49 id. 261 ; Schif- fer V. Eau Claire, 51 id. 385 ; Stanford v. Davis, 54 Ind, .45; Wilkerson v. Rust, 57 id. 172; Romine v. Romine, 59 id. 346; Price V. Sanders, 60 id. 310 ; Carter v. Zeublin, 68 id. 436 ; Farman v. Chamber- lain, 74 id. 82 ; Shafer v. State, 49 id. 460, and cases cited ; Kelsey v. Henry, 48 id. 37. 2 Durkee v. City Bank, 13 Wis. 210, 222. 8 McGonigal v. Colter, 32 Wis. 614; Webster v. Tibbits, 19 Wis. 438 ; Shore V. Taylor, 46 Ind. 345 ; Owen v. Cooper, 46 Ind. 524. * Wood V. Olney, 7 Nev. 109. The de- 642 CIVIL KEMEDIES. § 578. It is expressly provided in all the codes, that material allegations of the complaint or petition not controverted by the answer are admitted, and they need not be proved ; the same is of course true of averments expressly admitted. A denial of the legal conclusion, such as the indebtedness, while the answer is silent with respect to the issuable facts from which the conclusion follows, is a mere nullity, and raises no issue. ^ What averments are material, and are thus admitted unless controverted, is a ques- tion of law to be decided by the court, and not by the jury.^ The result just mentioned does not arise from a failure to deny im- material allegations ; such statements are not issuable, and their truth is not conceded for the purposes of the trial by the defend- ant's neglect to controvert them. In this class are included all species of immaterial and non-issuable matter, such as details of evidence, conclusions of law, and averments of time, place, value, amount, and the like, in all ordinary circumstances.^ An im- portant question presents itself in this connection as to the effect of a qualified admission contained in the defendant's answer, and the decisions in respect to it are somewhat conflicting. The rule is settled by one group of cases, that when the answer expressly admits certain material averments of the complaint or petition, but at the same time accompanies this concession with the statement of affirmative matter in explanation and qualification by the way of defence, the plaintiff may avail himself of the admissions with- out the qualifications ; he is not bound to take the defendant's entire statement ; he is freed from the necessity of proving his own averments that are admitted, while the defendant must prove those which he sets up.* Other cases seem to lay down murrer was sustained as to some, and '^ Becker y. Crow, 7 Bush, 198. overruled as to the others. 3 Doyle v. Franklin, 48 Cal. 537, 539 ; 1 Skinner v. Clute, 9 Nev. 342 ; Jen- Gates v. Salmon, 46 Cal. 361, 379 (evi- kins V. N. C. Ore Dressing Co., 65 N. C. dence) ; Chicago, &c. R. R. v. North 563. See also Trapnall v. Hill, 31 Ark. West. U. P. Co., 38 Iowa, 377, 382 345 ; Mohr v. Barnes, 4 Col. 350 ; Dole v. (value of goods) ; People v. Commission- Burceigh, 1 Dakota, 227; Kansas City ers, 54 N. Y. 276, 279 (conclusion of law). Hotel Co. V. Sauer, 65 Mo. 279 ; Bonham See also Sands v. St. John, 36 Barb. 628 ; V. Craig, 84 N. C. 224 ; Bensley v. Mc- 23 How. Pr. 140 ; Fry v. Bennett, 5 Millan, 49 Iowa, 517 ; Alston v. Wilson, Sandf. 54 ; Newman v. Otto, 4 Sandf. 44 id. 130 ; Fellows v. Webb, 43 id. 133 ; 668 ; Oeclis v. Cook, 3 Duer, 161 ; Har- Blake v. Comm'rs, &c., 18 Kans. 266 ; low v. Hamilton, 6 How. Pr. 475 ; Con- Wands V. School Dist., 19 id. 204 ; Murray noss v. Meir, 2 E. D. Smith, 314 ; Mayor, V. N. Y. Life Ins. Co., 85 N. Y. 236, 239 ; &c. v. Cunliff, 2 N. Y. 165, 171. Lange v. Benedict, 73 id. 12 ; Marsh v. * Dickson u. Cole, 34 Wis. 621, 626, Pugh, 43 Wis. 597; Tracy i;. Craig, 55 627. The answer admitted the agreement Cal. 91. set forth in the complaint, but set up in FORM OF THE COMPLAINT OR PETITION. 643 a different rule, denying to the plaintiff the full benefit of the admission, and requiring him to accept it, if at all, with the de- fendant's qualifying matter.^ When different defendants have put in separate answers, an admission by one cannot be used against the others:^ and the same doctrine extends to separate defences of one party in a single answer ; the admissions in a de- fence of confession and avoidance do not overcome the effect of a denial contained in another.'^ § 579. A defective complaint or petition may be supplemented, and substantial issues may thus be presented by the answer itself. When tlie plaintiff has failed to state material facts, so that no cause of action is set forth, but these very facts are supplied by the averments of the answer, the omission is immaterial, and the defect is cured. This rule should properly be confined to the case where the answer affirmatively alleges the very fact that is missing from the complaint ; but it has in some instances been enforced, although tlie answer simply contained a denial of the necessary fact which should have been averred by the plaintiff.* connection therewith a further agreement by way of avoidance. On the trial, the court lield the cause of action to be ad- mitted, and the plaintiff was not called upon for any proofs. The defendant urged, that, if the answer was taken as an admission at all in the plaintiff 's favor, the whole of it should be taken. The court, by Lyon J., said : " In several cases this court has taken a different view of the law, and has held that, if a fact be expressly admitted in any part of the answer, such fact is to be taken as true against the defendant, and the plain- tiff is relieved from the necessity of proving it, and this though it may be controverted in some other part of the answer. The principle must necessarily be the same when the fact is stated by way of confession and avoidance, as in this case." The following cases were cited as sustaining this view : Sexton v. Rhames, 13 Wis. 99 ; Hartwell v. Page, 14 Wis. 49 ; Orton v. Noonan, 19 Wis. 350 ; Farrell v. Hennesy, 21 Wis. 632. 1 Troy and Rut. R. R. •). Kerr, 17 Barb. 581. As to the effect of admis- sions, see also Simmons v. Law, 8 Bosw. 213; 3 Keyes, 217; Paige v. Willett, 38 N, Y. 81 ; Tell v. Beyer, 38 N. Y. 161 ; Robbins v. Codman, 4 E. D. Smith, 325. 2 Swift V. Kingsley, 24 Barb. 541; Troy and Rut. R. R. v. Kerr, 17 Barb. 581, 599. '^ Vassear v. Livingston, 13 N. Y. 256 ; 4Duer, 285; Ayres v. Covill, 18 Barb. 264; 9 How. Pr. 573. See this topic treated at large infra in ch. 4, sect. 4. « Dayton Ins. Co. v. Kelly, 24 Ohio St. 845, 857 ; Miller v. White, 6 N. Y. S. C. 256; Garrett v. Trotter, 65 N. C. 430, 432 ; Bate v. Graham, 11 N. Y. 237 ; Louisville, &c. Canal Co. v. Murphy, 9 Bush, 522, 529 (a simple denial in the answer) ; but see Scofield v. Whitelegge, 49 N. Y. 259, 261, which expressly holds that a denial merely in the answer is not sufficient ; Shartle v. Minneapolis, 17 Minn. 308, 312. See also De la Mar v. Ilurd, 4 Col. 442 ; Herschfield v. Aiken, 3 Mont. 442 ; Haggard v. Wallen, 6 Neb. 271 ; Worthey's Adm'r v. Hammond, 13 Bush, 510 ; Quaid v. Cornwall, 13 id. 601 ; Howland Coal Co. v. Brown, 13 id. 681 ; Gregsley v. Barr, 14 id. 330; Pearce u. Mason, 78 N. C. 87; Goff ^. Board of Supervisors, 43 Wis. 55 ; Kretser v. Carey, 52 id. 874; Wiles v. Lambert, 66 Ind. 494. 644 CIVIL REMEDIES. A statement in the reply, however, of a fact which ought to have been alleged in the complaint or petition, is not sufficient, and does not cure the defect.^ § 580. The prayer for relief is generally regarded as forming no part of the cause of action, and as having no effect upon it, and as funishing no test or criterion by which its nature may be determined.^ This prevailing view was well expressed by a re- cent decision of the New York Court of Appeals in language w;hich I quote : " The relief demanded by no means characterizes the action, or limits the plaintiff in respect to the remedy which he may have. If there be no answer, the relief granted cannot exceed that which the plaintiff shall have demanded in his com- plaint. But the fact, that after the allegation of the facts I'elied upon the plaintiff has demanded judgment for a sum of money by way of damages, does not preclude the recovery of the same amount upon the same state of facts by way of equitable relief. The relief in the two cases would be precisely the same ; the difference would be formal and technical. If every fact neces- sary to the action is stated, the plaintiff may even, when no answer is put in, have any relief to which the facts entitle him consistent with that demanded in the complaint." ^ Although this theory has been accepted by most of the courts, and is approved in numberless cases, at least one tribunal of high character has suggested that the prayer for relief may be properly appealed to 1 Webb V. Bidwell, K Minn. 479, 485. man v. Filmore, 7 Oreg. 374 ; Balle u. 2 Goodall V. Mopley, 45 Ind. 355, 859 ; Mossley, 13 S. C. 439 ; Dawson v. Gra- Lowry v. Button, 28 Ind. 473 ; Bennett ham, 48 Iowa, 378 ; Herring v. Hely, 43 V. Preston, 17 id. 291; Cincinnati, &c. id. 157; Mackey w. Auer, 8 Hun, 180; R. E. V. Washburn, 25 id. 259 ; Hale v. Benedict i/. Benedict, 85 N. Y.' 625 • Omaha Nat. Bank, 49 N. Y. 626, 631. Tewsbury w. Schulenberg, 41 Wis. 584; This doctrine cannot, of course, be true Gibson v. Gibson, 46 id. 449 ; Acker v. in the one or two States whose codes McCullough, 50 Ind. 447 ; Rogers v. La- provide for a demurrer when the facts fayette Co., 52 id. 297 ; Bonnell v. Allen, alleged show that the plaintiff is not en- 53 id. 130; Sohn v. Marion, &c. Co., 73 titled to the relief demanded in his petition or id. 78; Carpenter v. Brenham, 50 Cal. complaint. For further illustrations of the 549 ; Hall v. Lonkey, 57 id. 80. In judg- general rule that the relief actually ment by default plaintiff can have no granted after a trial depends upon the greater relief than is demanded bv the facts properly alleged, and not upon the prayer. Maxwell v. Dudley, 13 Bush^ 403 ; prayer, see Shilling v. Rominger, 4 Col. Hansford v. Holdam, 14 id. 210 ; Peck v. 100; Radford v. So. Mut. Life Ins. N. Y. & N. J. R. R., 85 N.Y.246; Bul- Co., 12 Bush, 434; First Div. St. Paul lard w. Sherwood, 85 id. 253. R. R. V. Rice, 25 Minn. 278 ; Saline Co. » Bradley a. Aldrich, 40 N. Y. 504 ; V. Sappington, 64 Mo. 72 ; Mo. Valley Hale v. Omaha Nat. Bank, 49 N. Y. 626,' Land Co. v. Bushnell, 11 Neb. 192 ; Gil- 631, per Allen J. FOKM OF THE COMPLAINT OR PETITION. 645 as the test by which the nature of the action can be determined in all cases where the pleader has, by his mode of alleging the facts, left his intention in doubt.^ I have thus discussed and stated those fundamental principles and general doctrines of the reformed pleading which are common to all causes of action. The more special rules which prescribe the manner and form of aver- ring particular facts, and which determine the mode of alleging the various causes of action considered separately and indivi- dually, must be omitted from the present volume. They will find their appropriate place in the second part of the work, which will treat of the different remedies themselves that may be ob- tained by means of the civil action. 1 Gillett V. Treganza, 13 Wis. 472, adopt this rule in oases of doubt, and in 475, per Dixon C. J. ; " Under our pres- cases like the present, where the pleader, sent system, the test by which we are to conceiving himself entitled to prosecute determine the character of actions in several actions, has so stated his facts as those cases where the facts stated indj- to leave it uncertain which he intended cate two or more actions must be the re- to pursue." lief demanded. We may, at least, safely 646 CIVIL KEMEDIES. CHAPTER FOURTH. THE DEFENSIVE SUBJECT-MATTER OF THE ACTION; THE FORMAL PRESENTATION OF HIS DEFENCE, OR OP HIS CLAIM FOR AFFIRMATIVE RELIEF, BY THE DEFENDANT. SECTION FIRST. STATUTORY PROVISIONS CONCERNING MATTERS OF DEFENCE. § 581. I COLLECT together in one group aR the sections of the various codes relating to the nature and contents of the answer, including denials, new matter, counter-claims, set-offs, affirmative relief, and cross-complaints. The clause defining the answer, and describing its contents, is substantially the same, with some un- important variations, in all the codes ; the principal, and indeed only, material differences are found in .the provisions relating to counter-claims and cross-demands generally. The following are the sections which determine generally the nature of the answer as a pleading. " The answer of the defendant must contain, 1. A general or specific denial of each material allegation of the complaint [or petition] controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief; 2. A statement of any new matter constituting a defence or counter-claim [or set-off] in ordinary and concise language, with- out repetition." ^ In a few States the foregoing description is employed, with slight verbal changes, and to it is added another subdivision. The sections, as found in these codes, are given at large in the foot-note.^ ' New York, § 149 (500); Wisconsin, cifie " and " material " are omitted, so that ch. 125, § 10 ; Ohio, § 92, except, in subd. it reads, " 1. A denial of each allegation," 1, the clause " or any knowledge," &c., &c., and " or setoH " is inserted in subd. is omitted, and, in subd. 2, "or set-off" 2; Florida, § 100; Oregon, § 71, as in the is inserted ; Missouri, art. 5, § 12, except text, except the words " general or " are in subd. 1, the words " general or " are omitted in subd. 1, which reads, " A spe- omitted, so that it reads, " 1. A special ciflc denial of," &e.; North Carolina, §100; denial," &c. ; Nebraska, § 99, with same South Carolina, § 172 ; Dacota, § 102. modifications as in Ohio ; Indiana, § 56, 2 Kansas, § 94. " The answer of the except that, in subd 1, " general or spe- defendant must contain, 1. A general or PROVISIONS EELATING TO THE ANSWER. 647 § 582. The provisions relating to the union of various defences, legal or equitable, or both, and of various counter-claims, in the same answer, are similar in all the codes, with unimportant vari- ations, and are as follows : " The defendant may set forth, by answer, as many defences and counter-claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. They must each be separately stated, and refer to the causes of action which they are intended to answer, in such manner that thej' may be intelligibly distinguished." ^ Another form found in several codes is, " The defendant may set forth, by answer, as many grounds of defence, counter-claim, or set-off, as he may have, whether legal or equitable, or both." ^ specific denial of each material allegation of the petition controverted hy the de- fendant. 2. A statement of any new matter constituting a defence, counter- claim, or set-oS, or a riglit to relief con- cerning the subject of tlie action, in ordinary and concise language witliout repetition. 3. When rehef is sought, tlie nature of the relief to which the defend- ant supposes himself entitled." Minne- sota, § 83, as in New York, except that the subd. 1 reads, " a denial of each alle- gation," &c., and the following is added: " 3. AH equities existing at the time of the commencement of the action in favor of the defendant therein, or discovered to exist after such commencement, or inter- vening before a final decision of such ac- tion. And if the same are admitted by the plaintiff, or the issue thereon is deter- mined in favor of the defendant, he shall be entitled to such relief, equitable or otherwise, as the nature of the case de- mands, by judgment or otherwise." Iowa, § 2655 : " The answer shall con- tain, 1. The names of the court, of the county, and of the plaintiffs and defend- ants ; 2. A general denial of eacli allega- tion of the petition, or else of any knowl- edge or information thereof sufficient to form a belief ; 3. A specific denial of each allegation of the petition controverted by the defendant, or any knowledge, &c. ; 4. A statement of any new matter constitut- ing a defence ; 5. A statement of any new matter constituting a counter-claim." California, § 437: "The answer of the defendants shall contain. 1. If the com- plaint be verified, a specific denial to each allegation of the complaint con- troverted by the defendant, or a denial thereof according to his information and belief. If the complaint be not verified, then a general denial to each of said allegations i but a general denial only puts in issue the material allegations of the complaint. 2. A statement of any new matter in avoidance, or constituting a defence or counter-claim." 1 New York, § 150 (501, 507) last para- graph ; Wisconsin, ch. 125, § 13; Ohio, § 93, adding " and set-offs " after " coun- ter-claims;" Missouri, art. 5, § 13, last paragraph, and § 14, as follows : " Differ- ent consistent defences may be stated in the same answer ; " Minnesota, § 85 ; Florida, § 101, .last paragraph; Oregon, § 72, last paragraph, omitting the clause concerning legal and equitable defences ; California, § 441, with same omission as in the last ; North Carolina, § 102 ; South Carolina, § 173, last paragraph ; Dacota, § 103, last clause. 2 Kansas, § 94, last paragraph, adding "and for relief" after "set-off;" Ne- braska, § 100, omitting the words " whether legal or equitable, or both ; " Indiana, § 56, subd. 3, as follows ; " 3. The defendant may set forth in his answer as many grounds of defence, counter-claim, and set-off, whether legal or equitable, as he shall have. Each shall be distinctly stated in a separate paragraph, and numbered, and clearly re- fer to the cause of action intended to be answered ; " Iowa, § 2655, subd. 6, as fol- 648 CIVIL REMEDIES. § 683. Most of the codes are in substantial agreement as to the nature and object of the counter-claim. In a few, however, there is a departure from this common type ; and in some there are special clauses relating to set-off as a form of defence different from the counter-claim. All these statutory provisions are collected in the text or in the notes. The following definition has been adopted in a majority of the States : " The counter-claim men- tioned in the last section must be one existing in favor of a de- fendant and against a plaintiff between whom a several judgment might be had in the action, and arising out of one of the following causes of action : 1. A cause of action arising out of the contract or transaction set forth in the complaint [petition] as the founda- tion of the plaintiff's claim, or connected with the subject of the action ; 2. In an action arising on contract, any other cause of ac- tion arising also on contract, and existing at the commencement of the action." ^ The corresponding sections in the codes of Indiana and of Iowa are, however, quite different, and are given at length in the foot-note. It ^y^ill be seen that they enlarge the scope of the counter-claim, and that, in Iowa, the restriction as to parties is very much modified.^ lows ; " 6. The defendant may set forth in his answer as many causes of defence or counterclaims, whether legal or equi- table, as he may have ; " and § 2657, " Each affirmative defence shall be stated in a distinct division of the answer, and must be sufficient in itself, and must in- telligibly refer to the part of the petition, to which it is intended to apply." 1 New York, § 150 (501, 507) ; Ohio, § 94, to and including subd. 1, and omit- ting the rest. The matter of the second subdivision appears in a subsequent sec- tion under the definition of " set-off; " Missouri, art. 5, § 13, as in the text; Minnesota, § 84, as in the text ; Florida, § 101, as in the text : Nebraska, § 101, as in Ohio ; Kansas, § 95, as in Ohio, and adding the following in reference to the "right to relief," which § 94 expressly permits a defendant to state in his answer : " The right to relief concerning the sub- ject of the action mentioned in the same section (§94) must be a right to relief necessarily or properly involved in the action, for a complete determination thereof, or settlement of the questions in- volved therein." This clause plainly de- scribes what is often called " an equitable counter-claim," and puts to rest all doubts respecting such a counterclaim in that State. Wisconsin, oh. 125, § 11, as in the text, witli the following addition : " When the plaintiff is a non-resident of this State, such counter-claim may arise out of any cause of action whatever existing at the time of the commencement of the action, and arising within this State; provided that no claim assigned to tlie defendant shall be pleaded as a counter-claim in any action to which this subdivision is appli- cable ; " Oregon, § 72, as in the text, ex- cept, in subd. 1, the words " or connected with the subject of the action " are omit- ted ; California, § 4-38, as in the text, ex- cept the words " contract or " are omit- ted from the first subdivision ; North Carolina, § 101 ; South Carolina, § 173 ; Dacota, § 103. 2 Indiana, § 59 : "A counter-claim is any matter arising out of or connected with the cause of action, which might be the subject of an action in favor of the defendant, or which would tend to reduce PROVISIONS EELATING TO THE ANSWER. 649 § 584. The " set-off," well known prior to the new system of procedure, and which had been defined and regulated by pre- vious statutes. English and American, is clearly embraced within the second subdivision of the section, as stated in the text, and as found in the codes of New York and of the States which have closely followed that original type. In certain States, however, a special provision is inserted in the codes defining the " set-off," of which the following is the common form : " A set-off can only be pleaded in an action founded on contract, and must be a cause of action arising on contract, or ascertained by a decision of the court." ^ There are additional special clauses in several of these codes regulating the procedure in respect to " set-off " and " counter-claim," particularly in their relations with the parties to the action. These sections provide for the bringing in of new parties found necessary to the determination of the issues raised by the defendant's affirmative pleading, or for the extending the benefits of a set-off or counter-claim existing in favor of a prin- cipal debtor, to his sureties, or existing in favor of one of two or more joint debtors, to the others. These sections are copied in the note.^ the plaintiff's claim or demand for dam- ages." Iowa, § 2659: "Each counter- claim must be stated in a distinct count or diyision, and must be, 1. "When the ac- tion is founded on contract, a cause of action also arising on contract, or ascer- tained by the decision of a court. [This is identical with the "set-off" of several other State codes, and of all former revi- sions of the code in Iowa.] 2. A cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, arising out of the contracts or transactions set forth in the petition or connected with the subject of the action, [This was the "counter-claim " of all the former revisions of the Iowa Code. Its marked departure from the common type in reference to the parties between whom a several jnngment in the action is possible will be noticed.] 3. Any new matter con- stituting a cause of action in favor of the defendant, or all of the defendants, i^more than one, against the plaintiff, or all of the plaintiffs, if more than one, and which the defendant or defendants might have brought when suit was commenced, or which was then held either matured or not, if matured when so pleaded." [This is the " cross-demand " of former revisions of the Iowa Code, and is broader than the counter-claim, as it may be any cause of action, but it must be between all the parties.] 1 Ohio, § 97; Kansas, § 98; Nebraska, § 104 ; Indiana, § 57. " The set-off shall be allowed only in actions for money de- mands upon contract, and mu.-^t consist of matter arising out of a debt, duty, or contract, liquidated or not, held by the defendant at the time the suit was com- menced, and matured at or before the time it was offered as a set-off." Wis- consin, eh. 126, containing eight sections, treats of " set-off " with much detail. 2 " Whenever it appears that a new party is necessary to a final decision upon the counter-claim, the court may either permit the new party to be made by a summons to reply to the counter-claim, or may direct the counter-claim to be struck out of the answer, and made the subject of a separate action." Ohio, § 96 ; Kan- sas, § 97 ; Nebraska, § 103 ; Iowa, § 2662 ; 650 CIVIL REMEDIES. § 585. A cross-petition or complaint is expressly authorized and its purposes defined in one or two of the State codes ; as, for ex- ample, in that of lowa.^ A section found in most of the codes provides that "sham and irrelevant answers and defences maybe stricken out on motion, and upon such terms as the court may in their discretion impose." ^ § 586. Pleadings hy the Plaintiff Responsive to the Defendant's Answer. All the codes permit the plaintiff to demur to the entire answer, or to any separate defence therein containing new mat- ter, or to any counter-claim therein, on the ground that the same is insuiBcient, or that the facts therein stated do not constitute a defence or a counter-claim.^ § 587. In respect to the mode of raising an issue of fact upon the allegations of the answer which are not mere denials, the codes are separated into two classes, — those which require an additional pleading by the plaintiff in order to raise such issues in all instances, and those which require such additional pleading only in response to counter-claims. In the first class, a reply by the plaintiff is needed to all answers or defences that set up new matter, whether as counter-claims or as defences simply, which reply may consist either of denials or of other new matter by way Indiana, § 63 : " Whenever it appears a set-ofE by the principal or any other that a new party is necessary to a final defendant." Indiana, § 58. decision upon the set-off, the court shall i Iowa, § 2663 : " Wlien a defendant permit the new party to be made, if it has a cause of action affecting the subject also appears that, owing to the insolvency of the action against a co-defendant, or a or non-residence of the plaintiff, or other person not a party to the action, he may, cause, the defendant will be in danger of in the same action, file a cross-petition losing his claim unless permitted to use against the co-defendant or other person, it as a set-off." Ohio, § 98; Kansas, The defendants thereto may be notified § 99 ; Nebraska, § 105. " A co-maker or as in other cases, and defence thereto surety, when sued alone, may, with the shall be made in the time and manner pre- eonsent of his co-maker or principal, scribed in regard to the original petition." avail himself, by way of counter-claim, of 2 New York, § 152 (538) ; Wisconsin, a debt or lic[uidated demand due from the ch. 125, § 15 ; Minnesota, § 86 ; Missouri, plaintiff at the commencement of the suit art. 5. § 19 ; Indiana, § 77 ; Iowa, § 2707 ; to such co-maker or principal ; but the Florida, § 102 ; Oregon, § 74 ; California, plaintiff may meet such counter-claim in § 453; North Carolina, § 104; South the same way as if made by the co-maker Carolina, § 175. or principal himself." Iowa, § 2661 :" In s New York, § 153 (494, 514, 516) all actions upon a note or other contract Wisconsin, ch. 12.5, § 16 ; Ohio, § 101 against several defendants, any one of Missouri, art. 5, § 15; Minnesota, § 87 whom Is principal and the others sureties Kansas, § 102; Nebraska, § 109; Iowa! therein, any claim upon contract in favor § 2664 ; Indiana, § 64 ; Florida, § 103 of the principal defendant against the Oregon, § 76; California, §§ 443, 444 plaintiff, or any former holder of the North Carolina, § 105; South Carolina, note or other contract, may be pleaded as § 176 ; Dacota, § 106. PROVISIONS RELATING TO THE ANSWER. 651 of avoidance. As a consequence of this requirement, every alle- gation of new matter in the answer, whether by way of defence or of counter-claim, not controverted by a reply, is, in such States, admitted to be true. The reply is the last pleading of fact ; the defendant may demur to it, but not rejoin any defence of fact.^ § 588. In the second class of codes, a reply is only necessary to a counter-claim. Whenever an answer contains new matter by way of defence, and not constituting a counter-claim, an issue of fact is raised by operation of law, and the plaintiff may prove, in response thereto, any facts by way of denial or of confession and avoidance. If a counter-claim is pleaded, the plaintiff must reply thereto either by denials or by confession and avoidance ; and in the absence of such reply, the allegations of the counter-claim are admitted to be true. No pleading is permitted in response to the reply except a demurrer, which may be used to raise an issue of law.2 1 In this class are the following codes : Ohio, § 101 : " When the answer contains new matter, the plainfiff may reply to such new matter, denying generally or epecifically each allegation controverted by him ; and he may allege, in ordinary and concise language, and without repeti- tion, any new matter not inconsistent with the petition constituting an answer in law to such new matter. To this reply the defendant may demur." § 127 : "Every material allegation of the petition not controverted by the answer, and every material allegation of new matter in the answer not controverted by the reply, shall, for the purposes of the action, be taken as true ; but the allegations of new matter in the reply shall be deemed con- troverted by the adverse party as upon a direct denial or avoidance." So also in Missouri, art. 5, §§ 15, 36 ; Kansas, §§ 102, 103, 128 ; Nebraska, §§ 109, 134 ; Indiana, §§ 67, 74; Oregon, §§ 75, 92; Iowa, § 2665 : " There shall be no reply, except, 1. When a counter-claim is alleged ; or, 2. When some matter is alleged in the answer to which the plaintiff claims to have a defence by reason of the existence of some fact which avoids the matter al- leged in the answer." § 2666 : " When a reply must be filed, it must consist of, 1. A general denial of each allegation or counter-claim] controverted, or of any knowledge or information thereof suffi- cient to form a belief; or, 2. Any new matter, not inconsistent with the petition, constituting a defence to the new matter alleged in the answer; or the matter in the answer may be confessed, and any new matter alleged, not inconsistent with the petition, which avoids the same." See Kimberlin v. Carter, 49 Ind. Ill ; Payne v. Briggs, 8 Neb. 75; Soofield v. State Nat. Bk., 9 id. ; Williams v. Ev- ans, 6 id. 216 ; Ridenour v. Mayo, 29 Ohio St. 138; Titusu.Lewis, 33id. 304; Hixon V. Gurge, 18 ICans. 253 ; Netcott v. Porter, 19 id. 131; Kirk . Boon, 61 N. Y. 317 ; Womble v. Fraps, 77 N. C. 198 ; Eanson West. U. Tel. Co. v. Penton, 52 Ind. 1 ; v. Anderson, 9 S. C. 438 ; Greenbaura v. Jones V. Frost, 51 id. 69; Lansdale v. Turrill, 57 Cal. 285; of frivolous answers, Gerton, 51 id. 99 ; Ready v. Sommer, 37 Munger v. Sliannon, 61 N. Y. 251 ; Cot- Wis. 265 ; Bushy a. Reynolds, 31 Ark. trell o. Cramer, 40 "Wis. 655 ; Hemme v. 657; Simpson, &c. Coll. v. Bryan, 50 Hnys, 55 Cal. 337; Fay v. Cobb, 51 id. Iowa, 293 ; Penn. Coal Co. .. Blake, 85 313 ; Dail v. Harper, 8-3 N. C. 4 ; Hall v. N. Y. 226, 2.35 ; Holcraft v. Mellott, 57 Carter, 83 id. 249; Brogden v. Henry, 83 Ind. 539; State v. Newlin, 69 id. 108; id. 274 ; Larimore v. Wells, 29 Ohio St. White V. San Rafael, &c. R. R., 54 Cal. 13; Sargent u. Railroad Co., 32 id. 449; 176; examples of defective answers, In- Ross v. Ross, 25 Hun, 642; Lerdall v. dianapolis, &c. R. R. v. Risby, 50 Ind. Charter Oak Ins. Co., 61 Wis. 426. 60; Shipman v. State, 43 Wis. 381 ; Nys 42 658 CIVIL REMEDIES. ciency. This language is certainly inaccurate, and unnecessarily confuses a subject which is in itself not free from diflicultj. It is, beyond a doubt, true, that if the answer or other pleading is defective in such a manner, and to such an extent only, that the proper method of correction is a motion to make it more definite and certain, and if the adverse party omits to make the motion, but goes to trial, he thereby waives the objection, and cannot raise it by attempting to shut out evidence of the cause of action or defence. But if the defect is of such a nature that a demurrer is proper, and the pleading would be held insufScient upon a demurrer, it is equally certain that the adverse party does not M'aive the objection by going to trial without demurring. If the pleading was a complaint or petition, the ground of demurrer would necessarily be, that it did not state facts sufficient to constitute a cause of action ; and, by an express provision of all the codes, this ground is not waived by answering and going to trial. If the pleading was an answer, the ground of demurrer would still be that the facts stated did not constitute a defence or counter-claim ; and if it did not, in fact, allege a defence or counter-chiim, none could be proved under it at the trial. The rule, with its proper limitations, is a correct one, and operates in the interests of justice and good faith ; but if acted upon in the broad manner as above recited, it would tend to destroy all cer- tainty and accuracy in pleading. If the deficiencies are such that a motion is the proper mode of cure, they are necessarily of form, and not of substance ; the adverse partj' is not in fact misled ; and a neglect on his part to apply the remedy in an early stage of the cause ought to be and is a waiver of all objection, so that the cause of action or defence, as^the case may be, can be proved, notwithstanding the ambiguity and indefiniteness of the aver- ments. § 598. Adopting the rule in this restricted scope, there are still cases of doubt and of conflict in its application. In some answers a defect of substance is plain ; the facts alleged clearly constitute no defence: in others the deficiencies are as plainly formal ; the necessary facts are all mentioned ; no doubt can exist as to the actual intent and meaning, but still some require- ments as to form and method have not been complied with. Be- tween these two extremes there are cases bordering upon the dividing-line, in which it is difficult to determine with certainty DEFECTIVE ANSWERS. 659 whether the defect is one of form merely, or whether it passes the limit, and is one of substance. In such instances we shall naturally find a conflict of decision among different judges, and we shall even discover the same court vacillating, in one case applying the liberal doctrine and holding the objection waived, and, in another not essentially different, enforcing the stricter rule, pronouncing the answer entirely bad, and wholly rejecting it. In some of the decisions to which I shall refer, it would seem that able courts have neglected their own precedents, and for- gotten the rule imposed upon them by the statute, which abro- gates the inequitable common-law doctrine of an interpretation adverse to the pleader, and requires a liberal construction with a view to substantial justice between the parties. It is only by a comparison and analysis of these decisions that a practical result can be reached, and a general principle deduced; and I shall therefore cite, either in the text or in the notes, the leading cases which have passed upon this important question. § 599. The authorities are uniform that a mere defect of form, as it has been already described, must be cured by a motion, and not by a demurrer. In an action to foreclose a purchase-money mortgage of land conveyed by the plaintiff to the defendant, the answer set up covenants in the deed of conveyance, and a breach of them ; namely, " that the plaintiff was not seised of the prem- ises, as of a good and indefeasible estate in fee," &c., negativing all the covenants. To this the plaintiff replied, and instead of averring " that he was seised," &c., said, " And the plaintiff denies that at the time, &c., he was not seised in fee of the said premises," &c., and in this manner met all the allegations of the answer. The defendant demurred for insufficiency. It was held by the court that "insufBciency " as a ground of demurrer im- plies that the allegations do not constitute any defence or denial to the adverse pleading. The insufficiency relates to the sub- stance of the averments as a whole, rather than to the form of the expression. The reply in this case was defective in form, but the substance thereof was good ; that is, it stated a denial in an improper manner, and the remedy therefor was not by demurrer, but by motion to render the allegations more definite and certain.^ 1 Flanders v. McVickar, 7 Wis, 372, ford, 41 Ind. 197; Snowden v. Wilas, 19 377. See, to the same effect, Spence u. Ind. 10; Fultz v. Wycoff, 25 Ind. 321; Spence, 17 Wis. 448, 454; Hart v. Craw- Phoenix v. Lamb, 29 Iowa, 352, 354; First 660 CIVIL REMEDIES. Although this decision was made in reference to a reply, the principle applies equally to an answer. § 600. That all objections of mere form to the answer are waived by a neglect to move, and by going to trial thereon, is sustained by numerous cases ; and some of them apply the rule to answers in which the deficiencies were very considerable, even so great as to have rendered the pleading demurrable in the opinion of the court pronouncing the decision. In White v. Spencer,! which was an action for flowing plaintiff's lands, the answer set up facts showing a user and enjoyment b}'^ defendant of the easement for more than twenty j^ears, but did not aver that this user was adverse. The plaintiff replied a general denial, and on his objection all evidence in support of the answer was excluded at the trial. On appeal from the judgment rendered in favor of the plaintiff, the New York Court of Appeals held that the user must be adverse, and that the plaintiff might have suc- cessfully demurred to the answer, because an averment of such adverse user was omitted ; but that, by replying, and going to trial, he had waived the objection. Denio, J., said : " I am of opinion that the plaintiff, having treated the allegation in the answer as a sufficient statement of defence by replying to it, and by going to trial without objection, is precluded from objecting to evidence to sustain it." He cited cases showing that the same rule prevailed under the old sj'stem,^ and added : " We have decided, it is true, that it is the duty of the judge on the trial to reject evidence offered in support of immaterial issues.^ But an issue is not immaterial, within the meaning of this rule, on ac- count of the omission of some averment in a pleading which is essential to the full legal idea of the claim or defence which is Nat. Bank of New Berlin c. Church, 3 also Stringfellow v. Alderson, 12 Kan. N. Y. S. C. 10. The answer averred that 112; Lathrop v. Godfrey, 6 N. Y. S. C. defendant " had no knowledge or infor- 96 ; Hiltchings v. Castle, 48 Cal. 152 ; mation thereto," which was held to be an Jackson Sharp Co. o. Holland, 14 Tla. improper form of denial; but the plain- 384, 389; a /yrti'ori such an answer cannot tiff 's remedy was by motion, and tlie de- be objected to for the first time on ap- fect had been waived. Seeley v. Engell, peal. Green v. Lake Superior, &c. Co., 13 N. Y. 542, 548, per Denio J. : " The 46 Cal. 408. alleged mistake was set up in the answer, i White v. Spencer, 14 N. Y. 247, 249, and denied by the reply. If the allegation 251. in that respect was too general in its ^ Meyer v. McLean, 1 Johns. 509; 2 terms, the remedy of the plaintiff was by id. 183 ; Reynolds v. Lounsbury, 6 Hill, motion, under § 160, to compel the de- 634. fendant to make It more certain." See ^ Corning v. Corning, 6 N. Y. 97. DEFECTIVE ANSWEES. 661 attempted to be set up. If the court can see, as in this case, what the matter really attempted to be pleaded is, the issue is not imma- terial, though it may be defectively stated." In this last sentence Mr. Justice Denio has given a very clear and accurate description of mere defects inform, which are waived by a neglect to correct them by motion. Whether the principle was properly applied to the case before him, is, as it seems to me, more than questionable. The answer did not attempt to state an adverse user, and simply fail to state it with accuracy ; it omitted any such averment en- tirely; it therefore set up no defence at all. When it is said that, if the court can plainly see what the matter really attempted to be pleaded is, the deficiency is formal, it is not intended that the court may be able, from their knowledge as lawyers and their experience as judges, to guess with reasonable certainty what the pleader designed ; they must be able to gather from the legal import of the facts which are alleged — although improperly al- leged — the nature of the defence relied on ; in other words, the substantial facts which constitute that defence must, in some manner, appear on therecord. A defence of fraud could hardly be considered sufficient at the trial, from which all averments of the scienter had been omitted ; and yet a fact was here wholly left out of the answer which was as essential in making up the defence as the guilty knowledge is to constitute the fraud. Al- though the reasoning of Mr. Justice Denio is admirable in its definition of the general rule, his conclusion cannot be reconciled with some subsequent decisions of the same court. § 601. In Simmons v. Sisson, the subject was discussed at large both upon principle and upon authority.^ The reasoning 1 Simmons v. Sisson, 26 N. Y. 264, edge of such direction, and of the amount 271. The action was hrouglit by the of such earnings, he had expended more plaintiff, treasurer of a corporation, tlian said amount, contrary to the wishes against the defendants, as stockholders, and instructions of the corporation, and The complaint alleged that the plaintiff in his own wrong. On the trial, the liad, by order of the directors, advanced referee held that this answer admitted and expended a certain sum more than the allegations of the complaint, that the he had received from its funds, and that plaintiff had expended tlie sum mentioned the corporation was indebted to liim over and above the earnings, and had therefor. The answer contained two de- done this by order of the directors. On fences, — 1. It denied that the corpora- appeal from the judgment rendered in tion was indebted to the plaintiff in said favor of the plaintiff, Selden J., who de- sum, or in any other sum ; 2. It alleged livered the opinion of the court, declared that the plaintiff had been directed by that the first defence was the exact equiv- the corporation to expend the earnings alentofm7 debet nt the common law, and thereof, and no more ; that with knowl- was a good general denial under the 662 CIVIL KEMEDIES. of the court, and the decision upon it, are, in the main, in perfect accord with the spirit and letter of the codes, and well express the liberal design of the reformed procedure. The only criticism which must be made upon the opinion — and it is a most impor- tant one — is upon that portion which draws analogies from the common-law system. Certainly none of the special common-law rules which distinguished the cases in which a particular form of general issue could be used, and which defined the office of a demurrer either general or special as applied to such pleas, are preserved ; they have all been swept away, and any trace of them only serves to obscure the clear principles which find an expression in the codes.-' § 602, In an action upon a promissory note, the defendant, an accommodation-maker, pleaded the defence of payment by the code, and then proceeded as follows : " But whether the preceding position is correct or not, it was too late to object at tlie close of the trial that this division of tlie answer did not put the fact of indebt- edness in issue. Under the former sys- tem of pleading, nil debet to an action of debt on bond or judgment was bad on general demurrer ; but if, instead of de- murring, the plaintiii went to trial on that issue, it was always held to put him to proof of his cause of action. Starkie on Et. 140; 2 Phil. Ev. Cow. & H.'s ed. 168; 1 Ch. PI. (Springfield ed. 1844) 433; Meyer ;;. McLean, 2 Johns. 183; Rush V. Cobbett, 2 Johns. Cas. 256, per Eadcliff J. ... I think, therefore, that under the strictest rules of special plead- ing, the first defence of the answer, if not objected to as insufiicient before trial by demurrer, would always have been held sufficient, on the trial, to put in issue the cause of action ; and that, in view of the provisions of the code in reference to the construction of pleadings, the referee erred in holding that the defendants had admitted the indebtedness of the corpora- tion, when they expressly denied it. There are, I think, much stronger rea- sons now for holding such an answer suf- ficient, on the trial, to put the question of indebtedness in issue than there were when the decisions were made to which I have referred. Parties are now pro- vided with short and cheap methods by motion to compel defective pleadings to be amended, stricken out, or tbat judg- ment be pronounced upon tliem summa- rily ; and they can have no excuse for reserving such objections until the close of the trial.' I am of opinion, that, when that course is taken, the party nmst stand upon the pleadings and evidence together; that the judgment must be such as the whole case, pleadings and evidence united, demands; and that it would be the duty of the court, under § 176, to dis- regard defects in the pleadings not before noticed, or to order the required amend- ments under §§ 170, 173. If, however, the case should be such as to satisfy the court that neither party had been misled by defects in the pleadings, it should be disposed of under § 169." 1 Even though the general issue nil debet, when improperly pleaded in debt upon a specialty, might be reached by a general demurrer, it is very clear that tlie Jirst defence in the case above mentioned was not demurrable upon any true con- struction of the provisions found in the codes. It was an attempted denial, and it actually contained denials : its real de- fect vi-as that it denied the legal conclu- sion from the facts alleged by the plaintiff, and not the facts themselves. The only proper mode to correct it would have been a motion. All that was said of its resemblance to nil debet was utterly out- side of the questions before the court. DEFECTIVE ANSWERS. 663 payee, and on the trial proved, under objection, a delivery of lumber by said payee to the plaintiff, and the receipt thereof by him in full satisfaction of the demand. The New York Court of Appeals, after holding that the answer was good, and that under a defence of payment the defendant may prove a payment in cash or in any other manner, added : " If the particulars of the transaction between the payee and the plaintiff were not suffi- ciently disclosed by the answer, the plaintiff's remedy was a motion under § 160 of the code. He could not accept the plea, and go to trial upon it, and then interpose the objection for the first time that it was not sufiBciently descriptive of the particulars relied on as constituting payment." ^ In Chamberlain v. Pains- ville, &c. R. R.,^ the Supreme Court of Ohio applied the rule sanctioned by Simmons v. Sisson to an answer equally faultj- with the one in the latter case in its denial of legal conclusions rather than of issuable facts. The action being upon a promis- sory note, the answer was, " That the said note in said petition mentioned was and is wholly without consideration, and void." No motion was made to compel more specific averments, and the parties went to trial. The court, after saying that the defendant might have been required to make the defence more definite and certain, added : " Under the broad issue thus chosen by the par- ties, any evidence would have been admissible which tended to impeach or sustain the consideration of the note." The answers in this case and in Simmons v. Sisson closely resembled each other in their defects and in their violation of the principles of pleading introduced by the codes. In both, the defendants designed to raise an issue of fact which would go to the whole cause of action, The defect was not a misconception of the defence, nor a reliance on matters which constituted no defence ; it was only an imperfect manner of stating a defence which was in itself perfect. Under a true construction of the codes, neither of these answers was demurrable. If the plain distinction estab- lished by the statutes is to be preserved, it is clear that a motion to make the pleading more definite and certain is the only mode of curing defects of this kind. I am aware that demurrers have been sustained to such defences, on the ground that they were conclusions of law, and not allegations of fact ; but the courts 1 Farmers' Bank v. Sherman, 33 N. Y. ^ Chamberlain v. Painsyille, &c. E. R., 69, 79. 15 Ohio St. 225, 251. 664 CIVIL REMEDIES. have sometimes overlooked the distinctions in this respect created by the legislature. § 603. I repeat, the doctrine would be an anomaly that an answer may be demurrable because it fails to set up any defence or counter-claim, and still become a sufficient pleading so as to admit proof of the defence or counter-claim from the plaintiff's neglect to demur or to object in some other manner prior to the trial. This proposition has, nevertheless, been expressly sanc- tioned by the courts in certain cases, although it is not supported by the weight of judicial authority, and is certainly not sustained by principle. Roback v. PowelP is an example of these de- cisions. This case goes farther than any of those before cited, and certainly farther than the rule invoked will warrant. A counter-claim is an independent cause of action, in which the defendant becomes the actor, and assumes the character of a plaintiff. The occasions and purposes in and for which it may be set up are carefully prescribed, and it was conceded that this answer did not come within the statutory definition. If the decision be correct, on the same principle it ought to be held that a defendant waives all objection to the sufficiency of a complaint or petition which does not state facts constituting a cause of action, when he answers it and goes to trial. § 604. Notwithstanding this array of cases in which the liberal rule of construing the pleadings has been sometimes pushed even to an unwarrantable extreme, there are others in which the courts have entirely disregarded the doctrine, have overlooked their own precedents, and have gone to as great a length in the opposite direction. In Manning v. Tyler, an action was brought upon a promissory note against R. as maker, and T. as indorser.^ 1 Roback u. Powell, 36 Ind. 515, 516. preme Court of Indiana held, upon the Tlie action was upon an injunction bond defendant's appeal, that as the action was given by Mrs. Roback. Tlie injunction on a contract, and the counter-claim was had restrained tlie plaintiff from taking for an alleged tort, the latter was in every down a house which stood upon her land, way improper, and could not be sustained She pleaded, 1, a general denial, and, 2, as had it been properly objected to; but a counter-claim, that Powell entered upon that all objection to it had been waived her land in her possession, and tore down by the replying and going to trial, and lier house, and carried the same away, to therefore the evidence in its support her damage §2,000, for which sum she should have been received, demanded judgment. The plaintiff re- "^ Manning v. Tyler, 21 N. Y. 567. The plied by a general denial, and went to answer set up usury in the following trial. All evidence in support of the coun- manner: That, about six months before ter-claim having been excluded, the Su- the date of the note in suit, E. made a DEFECTIVE ANSWEES. 665 Althougli the answer of the defendants was held to be frivolous, yet the dissenting opinion of Mr. Justice Denio, rather than that of the court, seems to express the rule established by the code. The deficiencies in this answer were certainly no greater than those in other pleadings to which the liberal mode of construc- tion had been applied by the same court. The pleader did allege something more than the broad conclusion that the note was usurious, and the criticism of the court in this respect was without foundation in fact : he detailed the issuable facts with such minuteness and certainty, that no one could be misled as to the exact nature of the defence. The narrative was undoubtedly incomplete, and it should have been perfected upon the plaintiff's motion ; but this is all that can be objected to it. The court maj'- have been unconsciously influenced in their decision by a feeling of distaste for the defence of usury, and thus led to apply a stricter rule of construction than they would have enforced in respect to other defences. § 605. The case of Lefler v. Field ^ is in yet stronger contrast with the general course of authorities, and with the express re- quirement of the codes that the pleadings must be construed- note at three months, and T. indorsed questioned. It consists, in effect, of the same for his accommodation, which nothing more than a general averment was made for tlie purpose of enabling R. that the note on which the suit is brought to raise money thereon; that E. applied is void for usury. It does not aver what to the plaintiff for a loan thereon, who, the usurious agreement was, between thereupon, did loan R. the said money whom it was made, the quantum of thereon at a greater rate of interest than usurious interest that was agreed upon seven per cent per annum; that said and received, nor that the agreement was note was renewed from time to time intentionally usurious and corrupt. The [stating when and howj, and that, at each old rule of pleading required all this par- of said renewals the plaintiff received, ticularity." It was further said, that and the defendants agreed to pay, a although the plaintiff might have moved greater rate of interest than at the rate to make the answer more certain and of seven per cent per annum ; that all definite, yet, as the answer presented no of these transactions were at the city of defence at all, he was not obliged to re- Syracuse; wherefore the defendants in- sort to that remedy. Denio J. dissented sist that the note mentioned in the com- from this judgment, Iiolding that the an- plaint [which the answer shows to be the ewer was simply defective in omitting last in the series] is usurious and void, allegations; that it set up a good defence The plaintiffs motion for judgment, on ac- in an imperfect manner, and the remedy count of the frivolousness of this answer, was therefore by motion. See also Gas- being granted, the defendants .appealed ton v. McLeran,3 Oreg. 389, 391 ;Taggart to the Court of Appeals, from whose opin- v. Risley, 3 Oreg. 306 ; Freitag v. Burke, ion the following extract is taken : " That 45 Ind. 38, 40. the answer in this case is bad within all i Lefler v. Field, 52 N. Y. 621. Com- the rules of pleading heretofore recog- pare Hutchins v. Castle, 48 Cal. 152. nized in the courts, cannot, I think, be 666 CIVIL EEMEDIES. liberally with a view to substantial justice between the parties, and not adversely to the pleader. The action was for the price of barley bargained and sold. The answer set up that the barley was contracted for by an agent of the defendants, who agreed to buy it if it was good and merchantable ; that the plaintiff repre- sented said barley to be a good, first quality, merchantable ar- ticle ; that the agent relied on such representations ; that the barley was not merchantable, which fact was known to the plaintiff, and therefore the defendants refused to accept the same. No demurrer was interposed, nor motion made ; and the parties went to trial on the pleadings as they stood. The Court of Appeals held that no evidence was admissible to establish the defence ; that the answer did not allege a defence of fraud, since it omitted to state two necessary elements thereof; (1) that the plaintiff made the representation with the intent to deceive, and (2) that the defendants or their agent were in fact deceived. § 606. When two or more defendants are sued and unite in one responsive pleading, it must be good as to each and all of these parties, or it will be wholly bad. This is the rule which prevails almost universally. Thus, if the defendants join in an answer which on demurrer proves to be insufScient as to one, it will be adjudged bad as to all ; but the result will, of course, be otherwise if they plead the same answer separately.^ On the same principle, if two or more defendants unite in a demurrer to the complaint or petition, and a good cause of action is stated against one or some of them, the demurrer will be wholly over- ruled.2 The rule is extended by analogy to pleadings containing two or more separate defences or causes of action. If a demurrer is interposed to an entire answer containing two or more separate defences, or to an entire complaint containing two or more causes of action, it will be overruled if there is one good defence or one good cause of action.^ In an action for a joint and several tort against several defendants, where the answer of one is a com- 1 Morton v. Morton, 10 Iowa, 58. Ind. 304 ; Davidson v. King, 47 Ind. 372 ; 2 McGonigal v. Colter, 32 Wis. 614; Washington Town'p t. Bonney, 45 Ind. Webster v. Tibbits, 19 Wis. 488. 77 ; Silvers ... Junction R. R., 43 Ind. 8 JefEersonville, &c. R. R. v. Vancant, 435, 442-445. See also Bruce v. Eene- 40 Ind. 233 ; McPhail v. Hyatt, 29 Iowa, diet, 31 Ark. 301 ; Everett v. Waymire, 137 ; Modlin v. North West. T. Co., 48 30 Ohio St. 308 ; Niehol v. McAllister, 52 Ind. 492 ; Excelsior Draining Co. v. Ind. 586 ; Roberts v. Johannas, 41 Wis. Brown, 47 Ind. 19 ; Towell v. Pence, 47 616. PARTIAL DEFENCES. 667 plete justification of the alleged -wrong as to all, and the others either suffer a default or plead different defences, if the issues raised by this answer are found against the plaintiff, the verdict will operate for the benefit of all the defendants, and he cannot recover a judgment against those even who made default. ^ § 607. It was an inflexible rule under the common-law system that every plea in bar must go to the whole cause of action, and must be an entire answer thereto on the record : with pleas in abatement the rule was different, for they did not purport to answer the cause of action. The spreading of a partial defence upon the record was unknown. Whenever such defences were to be relied upon, — as, for example, mitigating circumstances, — they were either proved imder the general issue, or under a special plea setting up a complete defence which the pleader knew did not exist. The code has certainly abolished this doc- trine and the practice based upon it. Several features of the new procedure are utterly inconsistent with it. In the first place, the general or special denials of the code are not so broad as the -general issues of the common law most in use had become ; and, as will be particularly shown in the following section, they admit of no evidence not in direct answer to the plaintiff's alle- gations. In the second place, the verification of pleadings intro- duced by the codes cuts off all averment of fictitious defences. In the third place, the statute expressly authorizes the defendant to set forth " as many defences as he may have ; " and this has been very properly construed as a direct permission, and even requirement, to plead partial as well as complete defences. Not- withstanding this express statutory provision, there has been some conflict of opinion among the courts in respect to the plead- ing of mitigating facts and circumstances. Certain judges have found it impossible to forget the technical methods of the old procedure, and have seemed determined to treat them as still existing in full force and effect ; while others have readily adopted the spirit as well as the letter of the reformed system. 1 Williams v. McGrade, 13 Minn. 46. leging that the goods were the property The action was for taking and converting of said H. D. W. On the trial, tliis justi- chattels. AH the defendants except two fication was proved, and it was held to united in a general denial. One, McG., enurefor the benefit of all the defendants, set up another action pending. The de- See also, to the same effect, Devyr v. fendant C. alone justified as sheriff under Schaefer, 65 N. Y. 446. an execution against one li. D. W., al- 668 CIVIL REMEDIES. I shall therefore postpone the discussion of this particular sub- ject — the pleading of mitigating circumstances — until the sec- tions are reached which treat of the " general denial " and of " new matter." § 608. While partial defences are to be pleaded, it is well set- tled that they must be pleaded as such. If a defence is set up as an answer to the whole cause of action, while it is in fact only a partial one, and even though it would be admissible as such if properly stated on the record, it will be bad on demurrer : the facts alleged will not constitute a "defence ; " which word, when thus used alone, imports a complete defence. The practical result of this doctrine is, simply, that the pleader must be careful to designate the defence as partial; he must not content himself with simply averring the facts as in an ordinary case, as if they constituted a full answer to the cause of action, but he must expressly state that the defence is partial. In the absence of such statement, it will be assumed that he intended the defence to be complete.^ § 609. This rule seems to be well established, but it is cer- tainly one which may often work injustice. It is a remnant of the old system, and does not harmonize with the central design of the new, which is to elicit the truth and to decide controvei- 1 Fitzsimmons v. City Fire Ins. Co., upon general principles, we do not see 18 Wis. 234; Traster v. Snelson's Ad- why it is not applicable to pleadings under ministrator, 29 Ind. 96 ; Sayres v. Link- tlie code. If a party has a partial defence hart, 25 Ind. 145 ; Conger v. Parker, 29 to an action, he should set it up, and rely Ind. 380; Stone v. Lewman, 28 Ind. 97; on it as such, and not as a complete and Sanders v. Sanders, 39 Ind. 207 ; Yancy entire defence." See also, to the same V. Teter, 39 Ind. 305 ; Bisuslog v. Garrett, effect, Adkins v. Adkins, 48 Ind. 12, 17 ; 39 Ind. 338 ; Summers v. Vaughan, 35 Allen v. Kandolph, 48 Ind. 496 ; Alvord Ind. 323, and cases cited. In Fitzsim- v. Essner, 45 Ind. 156 ; Curran v. Curran, nioiis V. City Fire Ins. Co., supra, it was 40 Ind. 473 ; Jackson v. Fosbender, 45 said by Cole J., at p. 240 : " The appellant Ind. 305 ; Beeson v. Howard, 44 Ind. 413, contends that, if this answer is not good as 416 ; Gulick v. Connely, 42 Ind. 134, 136. a total defence, it is good as a partial de- But this rule does not extend to an an- fence to tlie action. The difficulty with swer simply pleading a set-off less than this position is that tliis answer professes the plaintiff's demand, since a set-ofE is and assumes to answer the entire cause not strictly a defence. Mullendore v. of action. It is not relied on as a partial Scott, 45 Ind. 113; Dodge o. Dunham, but as a complete defence, and we have 41 Ind. 186. See also, as examples of the seen that for this purpose it is insufficient, rule stated in the text, Jones v. Frost, 61 Now, under the old system, when a plea Ind. 69 ; McMahan o. Spinning, 51 id. professed in its commencement to answer 187 ; Keller v. Boatman, 49 id. 104 ; Put- the whole cause of action, and afterwards nam • rights of the parties, and more clearly bring out and exhibit the issues designed to be raised by the answer. § 628. An example or two from among the decided cases will be sufficient to illustrate the kind of defence which is equivalent to the denial and the rulings of the courts thereon. An action was brought by the University of Vincennes against one Judah to recover certain bonds alleged to be the property of the insti- tution, which the defendant had converted to his own use. His answer set up, that the university was indebted to him in a large amount for professional services, and that the board of trustees had passed a resolution allowing him to retain and have these bonds as compensation for his services and in settlement of his claim. The reply, instead of denying this answer, averred that Judah had been secretary of the board of trustees ; that he fraudulently entered this resolution in the books of record of the university ; that no such resolution was ever passed : and it set out the resolution which was actually passed, and which was very different from that alleged in the answer. To the paragraph of the reply containing this matter the defendant demurred; the demurrer was overruled, and he appealed. In disposing of the question thus raised, the court said : " Now, this reply is simply a denial of so much of the. answer as alleges the adoption of the resolution, or, in other words, the making the contract by the trustees. It is argumentative, and it needlessly explains how a resolution never made by the trustees comes to be found on their records. This is surplusage. But neither argumentativeness nor surplusage justifies a demurrer under our system of pleading. There was, therefore, no error in overruling the appellant's demur- rer to the second paragraph of the reply." i It is plain that a general denial of this answer would have admitted in evidence all the facts specially pleaded in the reply under the form of new matter ; and the reply was, in fact, nothing more than a denial. 1 Judah V. University of Vincennes, 23 Ind. 272, 277. See also Clink u. Thurs- ton, 47 Cal. 21, 29. AEGUMENTATIVK DENIALS. 683 § 629. When the answer contains two or more defences, viz., 1st, a general denial, and, 2d, a special defence in the form of new matter, but in fact equivalent to the general denial, and a de- murrer to the latter has been sustained, no material error is thus committed, and the judgment will not be reversed ; for the same facts which were averred in the special defence could be fully proved under the general denial, and the defendant's whole case would thus be available under the issue which remained upon the record.^ In an action for goods sold and delivered, the answer in each of three separate defences set up the same facts with imma- terial variations : viz., that the goods were sold to the defendant's wife without his knowledge or consent ; that she had at the time wrongfully abandoned him, and was living apart from him, and for these reasons he was not liable for the price. A demurrer to these defences having been sustained in the court below, the Supreme Court on appeal held that they were all argumentative general denials : " their effect was simply to aver that the goods were not sold to the defendant, and aU the matters relied upon could have been proved under a general denial." It was further said, that a motion was the proper remedy to correct such faulty pleading, and the demurrer was irregular : but the irregularity in this instance was merely technical, and the error committed was immaterial, and had not prejudiced any rights of the defendant ; for, as he had pleaded the general denial in addition to the special defence mentioned, his entire case was provable under that part of the answer.^ S 630. This leads me to the second branch of the present sub- division ; namely, the combination of the general denial with other defences equivalent thereto in the same answer. The argumentative denial described above is frequently in practice used in connection with the general denial inserted in the same answer. It would seem as though the pleader, after he had writ- ten the brief general denial, could not be satisfied with its efficacy, and considered it necessary to add in separate divisions of the answer a further statement of the very facts which he knew would constitute the defence, and which could all be proven under the general denial. This mode of pleading is faulty in the 1 Chicago, &c. R. E. .'. West, 37 Ind. 211, 215; Waggoner v. Listen, 37 Ind. 857. 2 Day V. Wamslej, 33 Ind. 145. 684 CIVIL REMEDIES. extreme ; it has not a single reason in its favor, not an excuse for its existence ; it overloads the record with superfluous matter, and produces nothing but confusion and uncertainty. In a few- States the courts have struggled to correct this vicious departure from the true theory of pleading, and have enforced the rules and remedies which the codes amply provide. It is unnecessary to argue that this species of answer is in direct conflict with the plainest principles and the most express requirements of the codes. Those statutes permit only " denials " and statements of " new matter," that is, matter which is truly a confession and avoidance; they do not authorize averments of matter which is not new, but which is simply a detail of evidence going in sup- port of a denial. While this reformed system constructed by the codes is perfect in its scientific character, — far surpassing in that respect the loose notions introduced by the common-law courts in relation to the function of the ordinary " general issues " of the old procedure, — it is at the same time in the highest degree practical. If the advantages which ought to be derived from the great reform are to be obtained, it is clearly the duty of all the courts to insist upon a return to the simple methods which the codes so clearly prescribe, concerning which, indeed, they do not leave the slightest doubt or uncertainty. § 631. In Indiana, a practice has become settled, which might well be borrowed by the courts of all the other States. I know of no single rule of procedure, which, if uniformly adopted and rigidly enforced, would work out a happier result in bringing the forms and modes of pleading back to the simple and scientific theory embodied in the codes, than the rule which prevails in Indiana, and which I shall now explain and illustrate. I dwell on it at some length, not because it can now be regarded as part of the universal practice throughout the States in which the new system has been established, but because it ought to become so ; and I hope that, by introducing it to the attention of the bench and bar in other commonwealths, its merits may be at once rec- ognized, and its methods followed. § 632. "When the answer contains the general denial, and, in addition thereto, a separate defence or separate defences equiva- lent to the general denial, — that is, mere argumentative denials as above described, — such additional defences, it is settled, are irregular, and will be overruled and expunged from the record. ARGUMENTATIVE DENIALS. 685 The remedy is not by demurrer, for the reasons already given, but by motion to strike out as redundant and superfluous. If, how- ever, a plaintiff, instead of moving to strike out, should demur to the vicious defences, and that demurrer should happen to be sus- tained by the lower court, no material error would have been committed, for the same result would have been reached which would be attained by a motion ; the record would be cleansed of its redundancy, and the general denial would remain, under which all the facts constituting the defence, and which had been set forth at large in the rejected paragraphs, could be given in evi- dence at the trial. This practice, I say, is thoroughly settled in Indiana ; and the result is a system of pleading in that State which far surpasses, in its brevity and its adherence to the spirit of the codes, that prevailing in any other State. The cases col- lected in the notes illustrate many forms of pleading to which the rule has been applied, and exhibit its practical workings in a very complete manner.' The same doctrine and practice has been occasional!}'' followed in other States.^ This subject will be again referred to in the subsequent section which deals with the union of defences. It is very plain that the faulty method described and criticised proceeds in a very great measure from an uncer- tainty in the mind of the pleader as to the matter which may be given in evidence under the "general denial:" whatever, then, will remove that uncertaintj^ will aid in producing a reform in the manner of stating defences in the answer. 1 Adams Ex. Co. v. Darnell, 31 Infl. Lowry v. Megee, 52 id. 107 ; Watts i>. 20 ; Indianapolis, &c. E. R. v. Rutherford, Coxen, 52 id. 155 ; Bannister v. Grassy 29 Ind. 82 ; Jeffersonville, &c. R. R. v. Eork Ditch Ass'n, 52 id. 178, 184 ; West- Dunlap, 29 id. 426; Rhode c. Green, 26 ern Union. Tel. Co. v. Meek, 49 id. 53; id. 83 ; Boudurant v. Bladen, 19 id. 160 ; Smith v. Denman, 48 id. 65, 70. Butler V. Edgerton, 15 id. 15 ; Westcott ^ jjost v. Harris, 12 Abb. Pr. 446, per 17. Brown, 13 id. 83; Garrison u. Clark, 11 Bosworth J.; Radde v. Ruckgaber, 3 id. 369; Cain c. Hunt, 41 id. 466, 471; Duer, 684; Simpson u. McArthur, 16 Abb. Ferguson v. Ramsey, 41 id. 511, 513; Pr. 302 (n.), per Brady J., Bruck v. Chicago, &c. R. R. v. West, 37 id. 211 ; Tucker, 42 Cal. 346. It is held in Florida Urton V. State, 37 id. 339 ; Port v. Eus- that the court may strike out such a spe- sell, 36 id. 60 ; Day v. Wamsley, 33 id. cial defence or not as it pleases, and 145; Allen y. Randolph, 48 id. 496; Trog- neither ruling will be error. Davis v. den V. Deckard, 45 id. 572 ; Wolf v. Scho- Shuler, 14 Fla. 438, 445. See also Colorado field, 38 id. 175 ; Widener i>. State, 45 id. Cent. R. R. v. Mollanden, 4 Col. 154. A 244; Sparks v. Heritage, 45 Ind. 66; denial which is a mere inference from Lewis i;. Edwards, 44 id. 333; Ohio and facts alleged is not a good denial. Wright Miss. R. R. V. Hemberger, 43 id. 462,464 ; v. Schmidt, 47 Iowa, 233. Wilson V. Root, 43 id. 486, 493. See also 686 CIVIL EEMEDIES. VI. Creneral Denials of all Allegations not otherwise admitted or referred to. § 633. A practice has recently grown up of framing an answer in the following manner : To admit such of the plaintiff's aver- ments, if any, as the facts of the case require ; to deny others wholly or partially ; to explain and modify others if thought necessary ; in short, to unite in one answer or division thereof a mass of special admissions, denials, explanations, and affirmative statements, and to conclude the whole with a sweeping clause somewhat in this form : " As to each and every other allegation in said complaint not herein expressly admitted or denied or men- tioned, the defendant hereby denies the same ; " or, " And the de- fendant denies each and every other allegation in said complaint not hereinbefore expressly admitted or denied or mentioned." Although a somewhat similar mode of putting in issue the aver- ments of a bill in equity was occasionally resorted to by chancery pleaders under the former system, the codes give no countenance to, nor authority for, such a mongrel form of answer. The true spirit and intent of the theory introduced by the reformed pro- cedure plainly demand certainty, precision, and definiteness in the allegations of both parties, and especially in the denials by which the defendant places on the record the exact issues in- tended to be tried. In this respect the new method was to be a complete departure from the vagueness and uncertainty resulting from the broad effect given to the general issues in " assumpsit," " debt," and " trover " by the common-law courts, and also from the loose and incomplete manner of presenting the issues which necessarily characterized the answer in chancery.' This design of the codes would, however, be utterly defeated if the vicious style of defence thus described should become common ; and the courts, it is submitted, ought to have pronounced most emphatic- ally against it when it jSrst made its appearance. § 634. The codes require either a general denial, or specific denials, or defences in confession and avoidance ; and also that each defence must be separately stated, so that the issue raised by it may be perceived at once. The " general denial " is evidently intended to be an answer to the entire complaint or petition, — to negative all its averments. The design of the legislature and the PARTIAL GENERAL DENIALS. 687 understanding of the bar upon this point were shown by the im- mediate adoption of the form in use throughout all the States. The code of Iowa, revised in 1873, expressly enacts that the general denial is interposed to the whole petition ; and this pro- vision is plainly a statutory construction of the universally pre- vailing doctrine : a specific denial, on the other hand, must be addressed to some single, particular allegation, and must distinctly indicate the portion intended to be controverted by it. I am of opinion that each specific denial ought to be a single and separate defence by itself, so that, if the issue upon it should be decided in favor'of the defendant, the cause of action would be defeated. In this respect, I think, the specific denials of the codes were intended to be analogous to the special traverses provided for by the English judges in their new rules of pleading adopted in 1834. Certain it is that the codes do not, by any stretch of their language, contemplate an answer consisting of a general denial directed to a part only of the complaint or petition, and connected with other admissions, partial denials, and explanations. § 635. Again : this form of answer makes it extremely diffi- cult, and often impossible, to determine what allegations are denied, and what are passed by in silence, and therefore ad- mitted. If the complaint or petition contains numerous aver- ments, and the answer is such a mass of express admissions, partial explanations, and statements of matter which is merely evidentiary, and concludes with the formula above quoted, we have all the evils which can result from the most vicious system or no-system that can possibly be conceived. The object of pleading is to ascertain and present the issues of fact between the litigants, so that they can be readily perceived and decided by the court and jury. The special boast of the common-law methods was, that they brought out these .issues singly and clearly. I am confident that the theory of the reformed proce- dure, when lived up to and accurately followed, will give much better practical results than were ever obtained as a whole from the former system. The kind of answer which I have described violates every principle of this theory, and is a contrivance of ignorance or indolence. § 636. Notwithstanding the foregoing considerations, which appear to be such plain and necessary inferences from the lan- guage as well as the intent of the codes, the courts of New York 688 CIVIL EEMEDIES. and of some other States have given a seeming approval to this most slovenly manner of stating the defence of denial. So far as their decisions have passed upon the subject, they seem either to approve such answers, or at most to hold, that, if improper, the only mode of correction is by a motion to make them more defi- nite and certain ; in other words, they are sufficient to raise the intended issues. It cannot be said, however, that the question has been settled by authority, or that this species of denial has become an established method of pleading wherever the reformed procedure prevails. The few cases which touch upon the matter will now be cited. In an action upon a policy of life insurance, the answer was of the kind mentioned, and concluded as follows : that " the defendant denied each and every allegation of the complaint not therein expressly admitted or denied." The Court of Appeals said of this answer : " It is clear both upon principle and authority, that, under a general or specific denial of any fact which the plaintiff is required to prove to maintain the action, the defendant may give evidence to disprove it.^ If an answer containing denials of the allegations of the complaint, except as thereinafter stated, is rendered indefinite, uncertain, or compli- cated, the remedj' is by motion to make the answer more definite, and not by exclusion of evidence on the trial." ^ A similar answer, ending with a denial of " each and every allegation of the complaint except as herein admitted or stated" was held by the same court to be good and to raise an issue.^ VII. Allegations of Issuable Facts, and not Conclusions of Law, should be denied. § 637. The complaint or petition, in addition to the facts from which the right of action arises, sometimes contains the conclu- 1 Wheeler v. Billings, 88 N. Y. 263. 3 Younga u. Kent, 46 N. Y. 672 ; and 2 Greenfield v. Mass. Mut. Life Ins. see AUis v. Leonard, 46 N. Y. 688. That Co., 47 N. Y. 430, 437, per Grover J. An this form of denial is proper, and suffi- expression in this quotation indicates a ciently raises issues upon the allegations certain misconception on the part of the not admitted, seems to be now settled, at learned judge. A general denial of a fact least in several of the States. Walsh u. is something unlinown in the system of Mehrback, 5 Hun, 448 ; Calhoun v. Hal- pleading established by the codes. See len, 25 Id. 155 ; Penn. Coal Co. v. Blake, also Leyde v. Martin, 16 Minn. 38; 85 N. Y. 226, 235 ; St. Anthony Falls Co. Becker v. Sweetzer, 15 Minn. 427, 434; v. King Bridge Co., 23 Minn. 186 ; Ingle Kingsley v. Gilman, 12 Minn. 515, 517, u. Jones, 43 Iowa, 286. 518, which show that this form of denial is fully approved by the Minnesota court. DENIALS OF LEGAL CONCLUSIONS. 689 sions of law which result from those facts, such as the indebted- ness of the defendant, his liability in damages, and the like. It is a fundamental principle of the pleading authorized by the codes, that these averments of fact must be denied, and not merely the legal conclusion therefrom ; a traverse of the latter without one of the former is a nullitj', and creates no issue. When the issu- able facts are denied, a denial of the conclusions of law is unne- cessary, but would certainly be harmless. In this respect, the reformed procedure has introduced a new feature into the science of pleading. It is often said, I am aware, by writers of authority even, that, under the common-law methods, the facts were al- ways, and the legal conclusions were never, to be traversed. But this statement is clearly inaccurate. In some of the most com- mon forms of declaration in constant use, the leading averment was that " the defendant is indebted" a mere inference of law ; and the general issue might be, " he is not indebted," or " he was never indebted," which was certainly nothing but the denial of a legal conclusion. All this has been swept away by the codes, and every trace of it left in the modern practice is in direct oppo- sition both to the spirit and to the letter of the statute. A denial of indebtedness or of liability, without denying the allegations of fact from which the indebtedness or liability is claimed to have arisen, is a nullity ; it raises no issue, and will be held bad on demurrer, as is shown by the subjoined cases : In an action upon a promissory note, the answer admitted the execution of the note, and denied that the defendant owned the debt to the plaintiff. A demurrer to this answer was sustained, the court saying : " This answer under the former mode of pleading would have amounted to a plea of nil debet, and would not have been good, as the suit was brought upon a note in writing having the dignity of a specialty ; and we are of opinion that the answer was not sufficient under the present practice. It was not sufficient to state that defendant did not owe the debt." ^ All the cases, with hardly an exception, are to the same effect : as in an action on a note, an answer saying that " the defendants do not owe and ought not to pay the note, for they do not admit the regular pro- test thereof and notice," raised no issue ;2 also where, in an action for goods sold and delivered, the answer " denies that the defend- 1 Haggard v. Hay's Administrator, 13 2 ciark v. Finnell, 16 B. Mon. 329, B. Mon. 175. 335. 44 690 CIYIL REMEDIES. ant is indebted to the plaintiff as stated in the petition ; " ^ and where, in an action on a note, the answer simply denied indebt- edness to the plaintiff as claimed in the petition, or in any other sum or amount whatever.^ ■ § 638. The same is true of any other denials of mere inferences or conclusions of law. Thus, in a suit upon a note given to the plaintiff, a married woman, and made expressly payable to her on its face, a defence that the " note is not her separate property," and a denial that she is the legal owner and holder thereof, were both held nullities, and struck out on motion.^ The defence, in an action to foreclose a mortgage, " that D. [the mortgagor] was regularly and duly discharged from all his debts, including that to the plaintiff, under proceedings in insolvency," was held not to be new matter requiring a reply, " but only a conclusion of law and not of fact," and not to create an issue.* In an action to recover for injuries caused by the negligence of the defendant, the complaint, after stating the necessary facts showing the neg- ligent omissions, and the consequent destruction of the plaintiff's property, concluded, " to his great damage, to wit, in the sum of 1800." The answer simply denied " that the plaintiff had suf- fered damage in the sum of |800." This denial raised no issue.* § 639. The converse of the rule illustrated by the foregoing cases is also true. If the answer denies the material facts averred by the plaintiff, or alleges material facts constituting a defence of new matter, it need not deny the plaintiff's conclusions of law, or state any conclusions of law as the inference from the facts which it has pleaded. Thus, in an action upon a contract, the answer alleged all the facts necessary to show that the agreement 1 Francis v. Francis, 18 B. Mon. 57 ; » Frost ii. Hatford, 40 Cal. 165, 166 ; and see Nelson v. Murray, 23 Cal. 338 ; Felch v. Beaudry, 40 Cal. 439. Curtis u. Richards, 9 Cal. 83 ; Wells w. 4 Christy v. Dana, 42 Cal. 174, 178. McPike, 21 Cal. 215 ; Higgins v. Germain, 5 Huston v. Twin and City, &c. Tump. 1 Mont. 230 ; Skinner v. Clute, 9 Nev. 342. Co., 45 Cal. 550 ; Higgins v. "Wortel, 18 2 Morton v. Coffin, 29 Iowa, 235, 288. Cal. 880. In an action to enforce a lien For further illustrations of the rule stated upon defendant's land, an answer which, in the text, see Man. Nat. Bank v. Rus- without controrerting any of the facts al- sell, 6 Hun, 375 ; Starr v. Cragin, 24 Id. leged, simply denied that the plaintiff 177 ; Murray v. N. Y. Life Ins. Co., 85 had any lien, was held to raise no issue. N. Y. 236, 239 ; Kentucky, &c. Co. v. Bradbury v. Cronise, 46 Cal. 287. See, Commonwealth, 13 Bush. 436; Louis v. however, Simmons v. Sisson, 26 N. Y. Brown, 7 Oreg. 326; Indianapolis, &c. 264,270,273. R. R. V. Risley, 50 Ind. 60; Hunter v. Martin, 57 Cal. 365 DENIALS OF INFORMATION AND BELIEF. 691 was illegal as being in restraint of trade ; but the illegality was not expressly averred, nor relied upon as a defence by means of any clause drawing such a conclusion from the facts which were stated. The defence, however, was held to be sufficient both in form and substance : the facts constituting it were all pleaded ; and that was enough, without adding the legal inferences from them.^ VIII. Denials of Knowledge or Information. § 640. All the denials, either general or specific, to which the rules stated in the foregoing subdivisions apply, may be either positive, or denials of knowledge or information in respect to the matters alleged by the plaintiff. When the latter mode is adopted, the formula prescribed by the statute should be exactly followed, not because there is any value in the form simply as such, but because in no other manner can the defendant satisfy the de- mands of the code, and raise a substantial issue, — an issue which is not a subterfuge and pretence. When the denial is positive, the defendant is required to negative directly each and every allegation of the complaint or petition, or the particular ones controverted by him if less than all. If this cannot be done by reason of the defendant's ignorance, and he is therefore permitted to choose the other alternative, he must deny that he has any knowledge or information concerning the matters alleged suffi- cient to enable him to form a belief respecting them. Any other form must of necessity be evasive. And so the cases all hold ; but a single illustration will suffice. The complaint in an action to recover the price of gas furnished to a city being verified, the answer was as follows : " And this defendant says that the de- fendant has no knowledge or information in relation to the alle- gations of the second count of the said complaint, and therefore denies the same." On the trial, the averments of the second count were treated by the court as not denied, and as therefore admitted to be true ; and this ruling was sustained on appeal. The answer was held to be a nullity : the only denials permitted, it was said, are those positive in form, and those which deny any knowledge or information sufficient to form a belief ; any others raise no issue.^ The same conclusion was reached in respect to 1 Prost V. More, 40 CaL 347. 2 Gas Co. u. San Prancisco, 9 Cal. 453. 692 CIVIL REMEDIES. an answer which stated that " the defendant has not sufficient knowledge or information to form a belief whether [certain alle- gations] are true, and therefore denies tlie same."^ § 641. Although the denial of knowledge or information may be used in respect to every form of traverse, whether general or specific, yet it cannot be resorted to under all circumstances. There are occasions in which the defendant will not be permitted to say that he has no knowledge or information of the matter sufficient to form a belief, because such a statement would be a palpable falsehood, a plain impossibility. "When the allegation in the complaint or petition is of a fact which must of necessity be within the personal knowledge of the defendant ; when it avers an act done or an omission suffered by him personally ; when, for example, it states a contract entered into, or a deliber- ate wrong perpetrated, by himself, — he must know whether the averment is true or false. He will not be suffered to assert a defective memory, for such a forgetfulness is contrary to the general experience of mankind. If his recollection is at fault, the law affords him ample opportunity and means of refreshing it during the interval between the service of the adverse pleading and the time for answering. A denial, therefore, of the form described, pleaded in answer to allegations of a nature purely personal to the defendant, will be treated as sham and evasive, and will be struck out on motion. A demurrer would not be the proper remedy ; because the objection is not to the sufficiency as a defence, but to the bad faith of the party in interposing a plead- ing of such a character. The rule was accurately stated by Mr. Justice Field of the California Supreme Court substantially as follows : " If the facts alleged are presumptively within the knowledge of the defendant, he must deny positively, and a denial of information or belief will be treated as an' evasion. Thus, for example, in reference to instruments in writing alleged to have been executed by the defendant, a positive answer will alone satisfy the requirements of the statute. If the defendant 1 Curtis V. Richards, 9 Cal. 33. As to 55 Iowa, 207 ; Claflin v. Reese, 54 id. the proper form of such denials, and their 544 ; Neuberger v. Webb, 24 Hun, 347 ; effect in raising issues when thus proper, Meehan v. Harlem Sav. Bank, 5 id. 4.39*; see also Kentucky, &c. Co. t. Common- Grocers Bank v. O'Rorke, 6 id. 18; wealth, 18 Bush, 436 ; Farmers Bank v. Wiltman v. Watry, 37 Wis. 238 ; People Tlie Board, &c., 75 N. C. 45 ; Sherman v. v. Curtis, 1 Idaho, 753. Osborn, 8 Oreg. 66 ; Ninde v. Oskaloosa, THE ISSUES FORMED BY DENIALS. 693 has forgotten the execution of the instruments, or doubts the cor- rectness of their description, or of the copies in the complaint, he should, before answering, take the requisite steps to obtain an inspection of the originals. If the facts alleged are not such as must be within the personal knowledge of the defendant, he may answer according to his information and belief." ^ IX. Issues raised by Denials, and what may be proved under them. § 642. In discussing the topics embraced within this subdi- vision, the same doctrines apply both to general and to specific denials. The only difference is in respect to the extent of their effect and operation. ^ The general denial raises an issue with the entire complaint or petition, and admits evidence in contra- diction to all the plaintiff's material allegations ; while the spe- cific denial raises an issue with the particular allegation alone to which it is directed, and only admits evidence in contradiction thereto. The same rules as to the effect of the general denial upon the issue raised with the whole complaint, and the proofs admissible under it, apply with equal force to the specific denial in respect to the narrower issue which it creates and the evidence which it admits. It will only be necessary, therefore, to discuss the objects and functions of the general denial, since the results of this discussion will be true of specific denials within their limited operation. In pursuing this discussion, I shall inquire (1) into the nature and effect of the general denial and the issues formed by it, and shall therein compare and contrast it with the general issues of the common law ; (2) the general nature of the evidence which may be admitted, and the defences which may be set up under it ; and (3) I shall state and classify a number of particular defences, and matters of defence, which have been held admissible or not admissible, or, in other words, a number of par- ticular defences which have been determined to be defences by way of deliial, or to be new matter. 1 Curtis V. Richards, 9 Cal. 33, 38. See rett v. Goodsliaw, 12 id. 592 ; Goodell also, to the same effect. Wing v. Dugan, v. Bloomer, 41 Wis. 436; Union, &c. Co. 8 Bush, 583, 586 ; Jackson Sharp Co. v. v. Supervisors, 47 id. 245 ; Collart v. Holland, 14 Flor. 384, 386. The rule Fisk, 38 id. 288 ; Hatliaway v. Baldwin, stated in the text is also sustained by 17 id. 616 ; see Brotherton f. Downey, 21 the following cases : HufEarker v. Na- Hun, 436. tional Bank, 12 Bush, 287 ; Gridler v. 2 See Coles o. Soulsby, 21 Cal. 47, Farmers & D. Bank, 12 id. 833 ; Bar- 50, per Field, C. J. 694 CIVIL EEMEDIES. § 643. 1. No topic connected with the whole subject of plead- ing is, I think, more important than the questions thus suggested. Undoubtedly, much of the confusion, redundancy, and unscientific character of pleadings under the codes is the result of ignorance or uncertainty as to the power of the general denial to admit de- fences upon which the defendant relies. In very many instances the answer is made a long and rambling mass of purely evidentiary details, when the simple general denial, not exceeding two or three lines in length, would be fully as efficacious, and would present the issue in a sharper and clearer manner. The general denial is in some respects broader in its scope, and in some respects nar- rower, than the general issues as a whole at the common law. But little aid can be obtained from the rules which governed the use of the latter traverses, except by way of contrast ; and yet a statement in outline of those rules is important, in order that the contrast may be seen. I shall, therefore, by way of preface, collect and arrange the fundamental doctrines of the common law concerning the employment and effect of the general issue in the various ancient forms of action. § 644. All the possible defences in bar maybe reduced to a few comprehensive classes ; and this classification will assist us in ap- preciating the distinction between tliose defences which may be proved under a traverse of the plaintiff's allegations and those which must be pleaded specially as " new matter," or matter in confession and avoidance. In respect to contracts, aU possible defences must either (1) deny that there ever was a cause of ac- tion ; or (2) admit there was once a cause of action, but avoid it by showing subsequent or other matter. The first of these two classes may be subdivided into (a) those which deny that a suffi- cient contract was ever made ; and (J) those which admit that a sufficient contract was originally made, but show that, before breach thereof, — that is, before the time for performance arrived, — it was in some manner discharged, or ceased to be binding. Similar divisions might be made of the defences in bar to per- sonal actions for all purposes. From this analysis the following conclusions may be drawn : Defences in bar to all legal actions on contract or for tort may be separated into, first, those which deny that the plaintiff ever had the cause of action alleged, because either no foundation therefor ever existed, or, if such foundation ever existed, it had been in some manner removed before the THE GENERAL ISSUES. 695 cause of action arose therefrom ; and second, those which admit that a cause of action once existed, but show that it no longer exists.-^ § 645. The Greneral Issues at the Common Law. 1. In assumpsit. The general issue in the action of assumpsit, called non-assumpsit, was, " That the defendant did not undertake or promise in the manner and form as the plaintiff hath complained against him." When we look at the grammatical construction of this plea, it is plain that in terms it only denies the promise ; and yet it was un- derstood as putting in issue every allegation of the declaration. The original scope and effect of this general issue were greatly enlarged by and through a long series of judicial decisions, until the following doctrine became fully established by the courts : namely, that, under this general issue in the action of assumpsit, there might be proven any defence falling within the first of the two general classes stated at the close of the last paragraph ; that is, any defence showing that the plaintiff never had a cause of action, and also most of the defences falling within the second of those classes, and showing that there was no subsisting cause of action at the time of the commencement of the suit.^ The following are examples of the particular defences which illustrate this general proposition, and which might be given in evidence under the general issue of non-assumpsit : Those which insisted that no such contract as the one alleged had ever been in fact made ; those which admitted that the contract had been in fact made, but denied that was in law obligatory upon the defend- ant, which class embraced among others the following particular cases : that another person ought to have been made co-plain tiif ; that defendant was an infant, a lunatic, or drunk, or a married woman, and therefore incapable of contracting ; that the contract was made under duress ; want of a sufficient or of a legal con- sideration ; illegality in the contract, as gaming, usury, stock- jobbing, &c. ; that the contract was void under the Statute of Frauds ; release or discharge before breach ; alteration ; non- performance of a condition precedent by the plaintiff: those which admitted not only that the contract had in fact been made, but also that a cause of action thereon had once existed, and asserted that it had been discharged before the suit was 1 See 1 Ch. PI, (Springfield ed., 1840), pp. 471, 472. 2 1 Ch. PL, pp. 476-478. 696 CIVIL REMEDIES. brought ; which class embraced, among others, payment, accord and satisfaction, a promissory note or other negotiable security given for the debt and still outstanding, foreign attachment, ar- bitrament, former recovery for the same cause, a higher security given, and release.^ In many of the States a notice of the matter constituting most of the special defences was required by statute to accompany the general issue in order that the same might be proven on the trial ; but my object is merely to contrast the pure common-law doctrines with those introduced by the code. It is evident that there were very few defences which must have been specially pleaded in assumpsit ; and the result was, that the par- ties went to trial in the majority of cases (where this ancient sys- tem prevailed unchanged) without the plaintiff having received any intimation on the record of the nature of the defence he was to meet. This great evil was remedied in England by statute and by rules of court made thereunder in 1834, which entirely changed the functions of the general issue, and required that most of the foregoing defences should be pleaded specially. § 646. 2. In debt. In the action of debt, upon simple contract or legal liabilities, the general issue, called nil debet, was, " That the defendant doth not owe the said sum above demanded, or any part thereof, in manner and form as the plaintiff hath above com- plained against him." This language being in the present tense, taken in its plain grammatical sense, denies the existence of the debt at the time from which it speaks. Although, strictly speak- ing, it controverts a conclusion of law only, yet it- was regarded as the proper mode of putting in issue all the averments of fact ; and under it, as a general rule, any defence could be proved which showed that nothing was due at the time of the pleading, — not only every defence which showed that the debt had never in fact or in law been contracted, but also every one which showed that the debt once contracted had been discharged, as payment, release, and the like. Those which were required to be specially pleaded were very few, and were regarded as ex- ceptions to the general rule ; the most important were the Statute of Limitations, tender and set-off, neither of which could be proved under the plea of nil dehet? In the action of debt upon a specialty, there were two cases. (1.) Where the deed was the mere inducement to the action, and the other matter of fact 1 1 Ch. PI., pp. 476, 477. ' 1 Ch. PI., p. 481. THE GENERAL ISSUES. 697 was the real foundation thereof. In this case also the general issue was nil debet, and it was governed by the same lax rule which controlled its use when the action was upon contiacts not under seal.^ (2.) Where the deed was the very foundation of the action. There was in this case no answer of nil debet, nor any analogous thereto. The general issue was non est factum, as follows : " And the said defendant says that the said supposed writing obligatory [or indenture, or agreement] is not his deed." This plea was far more restricted in its operation than either of the others above mentioned. It admitted proof of matters going to show that the instrument was never executed by the defend- ant in point of fact, and of matters tending to show that for some reason the deed was void at the common law ab initio; but facts designed to show that it was simply voidable, or that it was void by statute, and, in short, all other defences impeaching its legal- ity, and all defences consisting in matters of discharge, such as payment and release, or of performance or of excuse, and the like, must be specially pleaded.^ § 647. 3. In covenant. In the action of covenant, the only plea which might be called the general issue was non est factum. Its form and the rule as to the defences provable under it were iden- tical with those which existed in reference to the same answer in debt upon a specialty. The defendant might prove that he did not execute the agreement in suit, but could not prove that he had not broken its covenants. In other words, this general issue did not put in issue all the allegations of the declaration ; and all defences other than the non-execution of the instrument must be pleaded specially.^ § 648. 4. In account. There was no general issue in this action. All matters which went to show that the plaintiif was not entitled to the judgment for an accounting must be pleaded specially. All other matters which, conceding that the defendant was liable to account, merely affected the act of accounting itself, and the credits and debits therein, could not be pleaded in bar of the action, but were to be set up in the proceeding before the officer who heard it, — the auditor or master.* § 649. 5. In detinue. The action of detinue was used in cases to which that of replevin had been very generally extended in 1 Ibid. p. 482. 8 lCh.Pl.,p.487. 2 1 Ch. PI., pp. 483, 484. * Ibid. p. 488. 698 CIVIL REMEDIES. the various States, and in which the action " for the claim and delivery of personal property " is the appropriate means of relief under the code. The general issue, non detinet, was the follow- ing formula : " And the said defendant says that he does not detain the said goods and chattels in the said declaration speci- fied, nor any part thereof, in the manner and form as the said plaintiff hath above complained." It admitted proof of any facts showing that the defendant did not withhold the goods, or that the property or possession thereof was not in the plaintiff. In other words, it put in issue the plaintiffs property and possession and the defendant's detention. This general rule, apparently so simple, had, however, been refined upon, and nice distinctions had been introduced. Thus the defendant could not prove that the goods had been pledged to him, but might prove that they had been given to him by the plaintiff, since the latter fact denied the plaintiff's property. The defence of lien must always have been specially averred.^ § 650. 6. In case. The general issue in this most important and comprehensive action was termed not guilti/, and was in the following form : " And the said defendant says that he is not guilty of the premises l_or grievances] above laid to his charge, or any part thereof, in manner and form as the said plaintiff hath above thereof complained against him." The action of case was said to have been based upon equity and good conscience ; and, under the above issue, any matter which showed that the plaintiff ought not in justice to recover might in general be proved. The general rule was that the plea of not guilty, denying the entire declaration, admitted proof (1) of all matters which tended to contradict any averment in the declaration, (2) of all matters which operated as a discharge of the cause of action, and (3) of all matters by way of justification or excuse.^ Thus, for ex- ample, in the action on the case for defamation, slander, or libel, all defences could be established under the answer of not guilty, except those which directly confessed the speaking or publishing the words, and their defamatory nature under ordinary circum- stances, but avoided the cause of action by showing that they were not defamatory under the special circumstances of that case ; namely, the defences of "justification " and of "privileged com- munication." These two defences — the one setting up the 1 1 Ch. PI., p. 488. 2 1 Ch. PI., pp. 490, 491. THE GENERAL ISSUES. 699 truth of the words, and the other setting up facts which removed the imputation of malice, and in reality excused the speaking or publishing — must be pleaded specially. Every other matter might be proved under the general issue ; although an election was frequently possible in respect to such defences, whether they should be presented in this manner, or should be pleaded specially.! § 651. 7. In trover. The general issue in trover was also not guilty, and in the same form as in case, the action itself being a modification or special application of the more general action of ease. This general issue was the most comprehensive of any known to the common law, and admitted all possible defences, with perhaps one or two exceptions. In fact, pleading specially was almost unknown in trover. No defences were ever presented in this manner except the Statute of Limitations, and release ; and it was doubted whether such mode was necessary even in these two instances.^ § 652. 8. In replevin. The plea which was called, although im- properly, the general issue in replevin, was non cepit. " And the defendant says that he did not take the said cattle [or goods and chattels] in the said declaration mentioned, or any of them, in manner and form as the said plaintiff hath above complained." This answer put in issue the fact of the taking, and also the tak- ing in the place mentioned in the declaration ; the latter fact being material in the special purposes for which this action was used at the common law.^ The action itself, in respect of its original objects and the rules of pleading controlling it, bears but little resemblance to the action bearing the same name which was generally in use in the various States, and which had been greatly modified by statutes and by judicial decisions ; and certainly bears still less likeness to the proceeding for "the claim and delivery of personal property, " introduced by the codes. § 653. 9. In trespass. The general issue not guilty differed slightly in form from that in case. " And the said defendant says that he is not guilty of the trespasses above laid to his charge, or any part thereof, in the manner and form as the said plaintiff hath above complained." The effect of this plea Avas confined to the scope and extent of its denials in their grammatical sense ; 1 Ibid. pp. 491-497. » 1 Ch. PI., p. 498. 2 1 Ch. PI., p. 498. 700 CIVIL KEMEDIES. in other words, as the language puts in issue only the trespasses, the defendant was restricted to the proof of matters tending to show that he did not commit the acts complained of. Trespass might be brought for violence to the person, for injury to or the taking and carrying away of goods, and for intrusion upon or in- jury to land. In the first case, the defendant might prove that he committed no assault, battery, false imprisonment, &c. ; and, in the second, that he did not injure nor take nor carry away the chattels. In the third case, the scope of the general issue was somewhat broader. To maintain the action, possession of the land by the plaintiff was necessary ; and the declaration averred his right by stating that it was " the close of the plaintiff." The general issue was regarded as denying this possessory right of the plaintiff in the land ; so that, under it, the defendant might show not only that he did not commit the acts complained of, but also that the plaintiff had no possessory right to the premises, by prov- ing title and the right of possession in himself, or in some other person under whom he claimed, or by whose authority he had acted. All other defences in either of these three phases of the action must be specially pleaded.^ § 654. 10. In ejectment. The only plea in ejectment was the general issue of not guilty, as in trespass ; and, under it, all pos- sible defences were admitted in proof.^ § 655. The general rules of which I have thus given an outline were greatly modified by statute and by new rules of pleading prepared in pursuance thereof by the English judges in 1834. These modifications, of course, had no compulsive authority in this country ; and, as they effected very great changes in the com- mon-law doctrines, they were not followed by the courts of the American States which adhered to the ancient procedure. The principal object and effect were to restrict the scope and opera- tion of the general issue in certain actions, — assumpsit, debt, case, and trover, — and to require many defences to be specially pleaded which could before have been proved under the general issues. It will be seen in the sequel that the principles of plead- ing embodied in the American codes necessarily lead, in part, to the same results. It is my design, however, to compare or con- trast the doctrines of the reformed American procedure with 1 1 Ch. PI., pp. 500--502. 2 1 Cli. PI., p. 507. THE GENERAL ISSUES. 701 those of the common law, and not with the changes made by- English legislation. § 656. There are a few points which should be noticed in re- lation to the foregoing rules which governed the use of the gen- eral issue. In the first place, there was no uniformity in its operation. Its effect as a pleading, its extent and scope in the admission of various defences, did not depend upon any qualities inherent in itself, but resulted rather from the particular form of action in which it was employed. In the second place, the for- mula which was adopted in these different actions did not in any single intance purport, according to the literal import of the language, to answer and deny all the allegations of fact contained in the declaration, and which together made up the plaintiff's cause of action, but rather singled out and contradicted some particular one of these averments. As, for example, it denied the promise in assumpsit, the execution of the deed in covenant and in one species of debt, the commission of the acts complained of in case and in trespass. Even in the single instance of nil debet, where issue seems to be taken by the express terms of the plea with the entire cause of action, the denial was not directed to the facts, but rather to the legal conclusion which arises from these facts. In the third place, this answer, in its practical operation, was miscalled the " general issue ; " for it ranged through almost every possible degree of efficacy. In some instances, it did not put in issue all the allegations of the declaration, and was therefore far less than a general denial ; in other instances, it not only put in issue all the allegations of the declaration, but also admitted proof of nearly all the defences which the defend- ant could rely upon, and thus united in itself all the possible de- nials, and almost all the matters of affirmative defence, which could be used to defeat the plaintiff's recovery. In no single instance did it perform the exact functions of the general denial ; that is, in no case did it barely put in issue all the averments of the declaration, compelling the plaintiff to prove them, and permitting the defendant to disprove them. It either fell short of, or went far beyond, this natural, and, as it seems to me, strictly logical, office and function. In this respect, the theory of plead- ing embodied in the codes is more severely scientific as well as more simple and practical than that which lay at the basis of the common-law system. The general issue of non-assumpsit in 702 CIVIL REMEDIES. assumpsit, of nil debet in debt on simple contract, and of not guilty in case and trover, in one important feature, resembled the modern " general denial," since they did put in issue the en- tire declaration, and acted as a traverse of all its averments, and as a consequence, admitted any evidence which tended to contra- dict those averments. But they all went far beyond this limit, and allowed the introduction of matters which were in no sense denials or contradictions. This peculiar characteristic of these forms of the general issue makes it impossible to draw analogies from them to aid in determining the true office of the general de- nial. It is ouly by contrast that any assistance can be obtained from the ancient rules and doctrines. § 657. I pass from the foregoing prefatory matter to examine the nature and office of the general denial, and the issues raised by it. In pursuing this inquiry, I shall rely upon the judicial opinions found in decisions which are universally regarded as au- thoritative, even using their language instead of my own wher- ever practicable. The case of McKyring v. Bull i is conceded to be the leading one. The opinion of Mr. Justice S. L. Selden is so full, accurate, and able an exposition of the subject, that other judges have done little more than repeat his conclusions. The action was brought to recover compeusation for work and labor. The complaint alleged that the plaintiff entered into the employ- ment of the defendant at a certain date, and continued in such employment at defendant's request, doing work and labor until another specified date, and that the services so rendered were worth the sum of $650 ; and concluded as follows : " That there is now due to this plaintiff, over and above all payments and offsets on account of said work, the sum of $134; "which said sum defendant refuses to pay : wherefore the plaintiff demands judgment for the last-mentioned sum, and interest from the 4th day of May, 1854." The answer was only a general denial. On the trial, the defendant offered to prove payment as a defence to the action ; but the evidence was excluded, on the ground that the defence should have been pleaded. He then offered to prove part payment in mitigation of damages ; but this was also rejected for the same reason. The case thus presented two questions to the Appellate Court for decision : (1) Whether payment could 1 McKyring v. Bull, 16 N. Y. 297, decided in 1857. ISSUES FORMED BY THE GENERAL DENIAL. 703 have been proved as a defence under the general denial ; (2) whether it could have been proved in mitigation of damages. If the action had been assumpsit or debt, the evidence would have been admissible in either aspect. The opinion of Mr. Justice Selden will be found in the foot-note.^ 2 McKyring v. Bull, 16 N. T. 297, 299. " While the general issue both in assump- sit and debt was in theory what the gen- eral denial allowed by the code is in fact, — namely, a simple traverse of the mate- rial allegations of the declaration or com- plaint, — yet from the different phraseology adopted in the two forms of action, a very different result was produced. The dec- laration in debt averred an existing in- debtedness ; and this amount was traversed by the plea of nil debet in the present tense : lience nothing could be excluded which tended to prove that there was no sub- sisting debt when the suit was commenced. In assumpsit, on the contrary, both the averment in the declaration and the trav- erse in the plea were in the past instead of the present tense, and related to a time anterior to the commencement of the ac- tion. Under non-assumpsit, therefore, so long as the rule of pleading which ex- cludes all proof not strictly within the issue was adhered to, no evidence could be received except such as would tend to show that the defendant never made the promise. That this was the view taken of these pleas in the earlier cases is clear. . . . We find, however, that a practice afterwards grew up, and came at last to be firmly established, of allowing, under the plea of non-assumpsit, evidence of various defences which admitted all the essential facts stated in the declaration, but avoided their eflfect by matter subse- quent, such as payment, accord, and satis- faction, arbitrament, release, &c. The history and progress of this anomaly is easily traced." Mr. Justice Selden goes on to cite a series of cases showing this course of change by which non-assumpsit came at last to be the comprehensive plea which I have before described, and to state the theories by which judges and text-writers have attempted to reconcile this new doctrine and rule with the gram- matical form of the plea. He then pro- ceeds (pp. 301, 202) : " These errors proved in their consequences subversive of some of the main objects of pleading. They led to surprises upon the trial, or to an unnecessary extent of preparation. Tlie courts, however, found it impossible to retrace their steps, or to remedy this and other defects in the system of plead- ing without authority from Parliament. This authority was at length conferred by the act of the 3d and 4th William IV., ch. 42, § 1 ; and the judges in Hilary Term thereafter adopted a series of rules, one object of which was to correct the errors which have been averted to. The first rule adopted under the head of assumpsit provided in substance that the plea of non- assumpsit should operate when the promise was express as a denial of the promise ; and when it was implied, of the matters of fact upon which the promise was founded. The object of this rule was to restore pleading in assumpsit to its origi- nal logical simplicity. It was obviously intended as a mere correction of previous judicial errors. It interprets the plea of non-assumpsit strictly according to its terms, and thus plainly indicates that the courts had erred in departing from those terms. That this was the view of the judges is shown by the different course taken in regard to the plea of nil debet. As this plea, construed according to its terms, included every possible defence within the issue which is formed, the judges did not attempt to change the im- port of those terms, but abrogated the plea. Rule two, under the head of Cove- nant and Debt, provides that ' the plea of nit debet shall not be allowed in any action ; ' and rule three substitutes the plea of nunquam indebitatus in its place. Thus the whole practice, which had con- tinued for centuries, of receiving evidence of payment and other special defences under the plea of nil debet or non-assumpsit, was swept away." Applying this his- torical analysis, he continues (pp. 302, 303) : " There are several inferences to 704 CIVIL EEMEDIES. § 658. The discussion of the second question presented in this case is so complete and instructive, that I adopt it as a portion of the text. " The next question is, whether evidence of pay- ment, either in whole or in part, is admissible in mitigation of damages. As the code contains no express rule on the subject of mitigation, except in regard to a single class of actions, this ques- tion cannot be properly determined without a recurrence to the principles of the common law. By these principles, defendants in actions sounding in damages were permitted to give in evidence. be drawn from this brief review which liave a direct bearing upon our new and unformed system of pleading. The first is, that no argument in favor of allowing payment or any other matter in confession and avoidance to be given in evidence under a general denial can be deduced from the former practice in that respect, as this practice has been abandoned in England, not only as productive of serious inconvenience, but as a violation of all sound rules of interpretation. A second inference is, that, in regard to pleading, it is indispensable to adliere to strict logi- cal precision in the interpretation of lan- guage. The anomaly which has been referred to was wholly produced by the slight deviation from such precision in the action of indebitalus assumpsit which has been pointed out. But the most impor- tant inference to be deduced from the his- torical sketch just given consists in an admonition to adhere rigidly to that rule of pleading which permits a traverse of facts only, and not of legal conclusions ; and this brings us to the pivot upon which the point under consideration must necessarily turn. The council for the defendant insists, that, as the answer con- troverts every allegation of the complaint, it puts in issue the allegation with which it concludes ; viz., that there was due to the plaintiif at the commencement of the suit, over and above all payments and offsets, the sum of §134. But this allega- tion is a mere legal conclusion from the facts previously stated. Its nature is not changed by the addition of the words ' over and above all payments.' No new fact is thereby alleged. The plaintiff voluntarily limits his demand to a sum less than that to which, under the facts averred, he would be entitled. Were courts to allow allegations of this sort to be traversed, they would fall into the same difficulty which existed in regard to the plea of nil debet, and which led the judges of England to abolish that plea. It would be impossible under such a rule, in a great variety of cases, to exclude any defence whatsoever, if offered under an answer containing a general denial. In England, as we have seen, after centuries of experience, it has been found most con- ducive to justice to require the parties virtually to apprise each other of the pre- cise grounds upon which they intend to rely ; and the system of pleading pre- scribed by the code appears to have been conceived in the same spirit. It was evi- dently designed to require of parties in all cases a plain and distinct statement of the facts which they intend to prove ; and any rule which would enable the defend- ants, in a large class of cases, to evade this requirement, would be inconsistent with this design. The case of Van Gieson V. Van Gieson, 12 Barb. 520, 10 N. Y. 316, contains nothing in opposition to the doctrine here advanced. That case simply decided, that, where the complaint con- tained an averment of nonpayment, a plea of payment formed a complete issue ; that, payment having been denied in the complaint, it was unnecessary to repeat that denial in a reply. My conclusion, therefore, is, that neither payment nor any other defence which confesses and avoids the cause of action can in any case be given in evidence as a defence under an answer containing simply a general denial of the allegations of the com- plaint." ISSUES FORMED BY THE GENERAL DENIAL. 705 in mitigation, not only matters having a tendency to reduce the amount of the plaintiff's claim, but, in many cases, facts showing that the plaintiff had in truth no claim whatever. It was not necessarily an objection to matter offered in mitigation, that, if properly pleaded, it would have constituted a complete defence. Thus, in Smithies v. Harrison, i the truth of the charge was re- ceived in mitigation in an action of slander, although not pleaded. Again : in the case of Abbot v. Chapman,^ which was an action of assumpsit, the defendant having given in evidence a release, Lord Holt said that ' he should have pleaded ezoneravit, but that the evidence was admissible in mitigation of damages.' So too, in the modern case of NichoU v. Williams,^ which was assumpsit for use and occupation, the defendant, having pleaded payment to a part of the demand, and non-assumpsit to the residue, was per- mitted, upon the trial, to prove payment in full ; but it was held that the evidence could only go in mitigation, and that the plain- tiff was entitled to judgment for nominal damages. It is obvious that this practice was open to serious objections. It enabled de- fendants to avail themselves of their defences for all substantial purposes without giving any notice to the plaintiff. .... But in regard to payment, release, &c., so long as they were received in evidence under the general issue in bar, no objection could be made to allowing them in mitigation. As soon, however, as this practice was abrogated by the rules of Hilary Term, 4th William IV., the question as to the admissibility of payment in mitigation at once arose." The learned judge here traces the course of Eng- lish decisions upon this question, citing and reviewing a number of cases, and referring to certain additional legislation ;* and con- cludes this discussion as follows : " The matter is now placed, therefore, in the English courts, upon a footing of perfect justice. If the demand for which an action is brought has once existed, and the defendant relies upon its having been reduced by pay- ment, he must appear and plead. § 659. "It is to be determined in this case whether we have kept up with these courts in our measures of reform. The rules 1 Smithies v. Harrison, 1 Lord Raym. Lord Denman ; Shirley v. Jacobs, 7 C. & 727. P. 3, per Tindal C. J. ; Henry v. Earl, 8 2 Abbot V. Chapman, 2 Lev. 81. M. & W. 228 ; Eule of Trinity Term, 1st " NichoU V. 'Williams, 2 M. & W. 758. Vict. 4 M. & W. 4. * Lediard v. Boucher, 7 C. & P. 1, per 45 706 CIVIL REMEDIES. of Hilary Term (4 William IV.) and the system of pleading pre- scribed by the code have, in one respect, a common object ; viz., to prevent parties from surprising each other by proof of what their pleadings give no notice. These rules, according to the construction put upon them by the courts, were found inade- quate, so far as proving payment in mitigation is concerned, to accomplish the end in view ; and it became necessary to adopt the rule of Trinity Term (1st Vict.) to remedy the defect. If the provisions of the code are to receive in this respect a construction similar to that given to the rules of Hilary Term, then an addi- tional provision will be required to place our practice upon the same basis of justice and convenience with that in England. But is such a construction necessary ? Section 149 of the code pro- vides that the answer of the defendant must contain, 1. A gen- eral or specific denial of the material allegations of the complaint ; and, 2. A statement of any new matter constituting a defence or counterclaim. The language here used is imperative, — ' must contain.' It is not left optional with the defendant whether he will plead new matter or not ; but all such matter, if it constitutes ' a defence or counterclaim,' must be pleaded ; and this is in entire accordance with the general principles of pleading. The word ' defence,' as here used, must include partial as well as complete defences ; otherwise it would be no longer possible to plead pay- ment in part of the plaintiff's demand, except in connection with a denial of the residue ; since section 163 provides that ' the plain- tiff may in all cases demur to an answer containing new matter, when, upon its face, it does not constitute a counterclaim or de- fence.' Such a restriction would be not only contrary to the general spirit of the code in regard to pleading, but would ob- viously conflict with § 244, subdivision 5, which provides that ' where the answer expressly, or by not denying, admits part of the plaintiff's claim to be just, the court ma}', on motion, order such defendant to satisfy that part of the claim,' &c. The ques- tion to be determined, then, is, whether these provisions are lim- ited in their operation to cases where the defendant seeks to avail himself of new matter strictly as a defence either in full or pro tanto, or whether they extend to the use of such matter in miti- gation. Were there nothing in the code to indicate the intention of the legislature on this subject, we might feel constrained to fol- low the construction put by the English courts upon the rules of ISSUES FORMED BY THE GENERAL DENIAL. 707 ■Hilary Term. But § 246 provides that in all actions founded upon contract brought for the recovery of money only, in which the complaint is sworn to, if the defendant fails to answer, the plaintiff is entitled absolutely to judgment for the amount men- tioned in the summons without any assessment of damages. It is plain, that, in this class of actions, defendants who have paid part only of the plaintiff's demand must appear and plead such part payment, or they will lose the benefit of it altogether. The pro- visions of § 385 afford no adequate remedy in such cases, because the offer to allow judgment for a part does not relieve the defend- ant from the necessity of controverting the residue by answer. Section 246 could never have been adopted, therefore, without an intention on the part of the legislature that § 149 should be so construed as to require defendants, at least in this class of cases, to set up part payment by answer ; and it is difficult to suppose that they intended the section to receive one construc- tion in one class of actions, and a different one in another. My conclusion, therefore, is, that § 149 should be so construed as to require defendants in all cases to plead any new matter constitut- ing either an entire or partial defence, and to prohibit them from giving such matter in evidence upon the assessment of damages when not set up in the answer. Not only payment, therefore, in whole or in part, but release, arbitrament, accord and satisfac- tion, must here be pleaded. In this respect, our new system of pleading under the code is more symmetrical than that prescribed by the rules adopted by the English judges." ^ § 660. To this admirable judgment I shall add a few selections from opinions which seem to express the theory of the new sys- tem in an accurate manner, or to illustrate its fundamental prin- ciples. The Supreme Court of New York, in an early case, described the office of the general denial in the following brief but very accurate manner : " Under a denial of the allegations of the complaint, the defendant may introduce any evidence which goes to controvert the facts which the plaintiff is bound to establish in order to sustain his action." ^ "Under the general denial of the code, evidence of a distinct affirmative defence is not admissible. The only evidence which the de- fendant is entitled to give is limited to a contradiction of 1 McKyring v. BuU, 16 N. Y. 297, 304- 2 Andrews v. Bond, 16 Barb. 633, 641, 307. per T. A. Johnson J. 708 CIVIL REMEDIES. the plaintiff's proofs, and to the disproval of the case made by him." 1 § 661. Whenever a reply is made necessary to all new matter contained in the answer, the question as to the' nature of a de- fence has often arisen upon the plaintiff's failure to reply to allegations which the defendant insisted were new matter, and therefore admitted to be true by means of the omission, but which the plaintiff claimed to be mere argumentative denials, or, in other words, unnecessary averments of evidentiary facts which could be proved under a denial. In passing upon such a question, the Supreme Court of Minnesota fully approved and adopted the general doctrine which has been stated in the text.^ In another case before the same court, the question was examined with great care and marked ability. The action was upon a contract of sale : the answer consisted of specific denials of each allegation in the complaint ; and the defendant offered to prove that the contract was entered into on Sunday, and was therefore illegal and void. An extract from the elaborate opinion of the court will be found in the note.^ 1 Beaty v. Swarthout, 32 Barb. 293- 294, per E. Darwin Smitli J. ; and see Wheeler v. Billings, 38 N. Y. 263, 264, per Grover J. 2 Nash 0. St. Paul, 11 Minn. 174, 178, per Wilson, C. J.: "An answer must either deny the facts alleged in the com- plaint, or set up new matter by way of avoidance. Those matters which the defendant should affirmatively plead as a defence are ' new matter ' within the mean- ing of our statute ; those that amount merely to a traverse of the allegations of tile complaint are not. Was it, in this case, incumbent on or proper for the de- fendant to set out these matters in the answer? I think that it may be correctly laid down as a general rule of pleading that a defendant who admits the facts alleged, but wishes to avoid their effect, may and should affirmatively set up the special matters on which he relies as an avoidance. Rnley v. Quirk, 9 Minn. 194. In this case the answer admits a contract in fact with the plaintiff, but denies its legal validity, and sets up the matters which show it void." 3 Finley v. Quirk, 9 Minn. 194, 200, per Wilson, C. J.: "The plaintiff can only allege facts ; and, in the answer, the defendant must either deny the facts alleged in the complaint, or allege new matter by way of defence or avoidance. And where the answer consists merely in a denial, it is quite clear that the plaintiff will only be required to prove, and the defendant only permitted to • controvert, the facts alleged in the complaint. In the language of Selden J., in Benedict v. Sey- mour, 6 How. Pr. 298, 'a general traverse under the code authorizes the introduc- tion of no evidence on the part of the defendant except such as tends directly to disprove some fact alleged in the com- plaint.' If the question of the Ifgulitij of the sale can be raised by a denial of any allegation of the complaint, it must be by a denial of the sale ; for the day or the time of the sale is not a material or trav- ersable fact." The judge then refers to the common-law doctrines respecting the general issue, and, by pursuing a similar train of reasoning to that followed by Selden J. in McKyring v. Bull, arrives at the same conclusion, that the general de- nial of the codes is not the general issue of any common-law form of action. The discussion is thus summed up : " We hold, ISSUES FORMED BY THE GENERAL DENIAL. 709 § 662. In au action to recover possession of chattels where the complaint alleged property iu the plaintiff, and the answer was a general denial, evidence tending to show that the plaintiff was not the owner was excluded on the trial. This ruliug was dis- approved on appeal, the court saying : " The answer is a denial of each and every allegation of the complaint. The allegation of ownership is therefore denied. In Bond v. Corbett/ it was held that anything which tends to directly controvert the alle* gations in the complaint may be shown under the general denial. The defendant might, therefore, introduce evidence to show that plaintiff was not the owner, nor entitled to possession." ^ The same doctrine is maintained by the Supreme Court of Indiana.^ § 663. The doctrine thus stated has also been approved by the Supreme Court of Missouri.* " It is clear, both upon principle and authority, that, under a general or specific denial of any fact which the plaintiff is required to prove to maintain tiie action, the defendant may give evidence to disprove it." ^ The true therefore, (1) that an answer merely by way of denial raises an issue only on the facts alleged in the complaint; (2) that the denial of the sale in this case only raised an issue on the sale in point of fact, and not on the question of the legal- ity of such sale; (3) that all matters in confession and avoidance showing the contract sued upon to be either void or voidable must be afiBrmatively pleaded." 1 Bond V. Corbett, 2 Minn. 248. 2 Caldwell u. Bruggerman, 4 Minn. 270, 276, per Atwater J. 3 Wood V. Ostram, 29 Ind. 177, 186, per Frazer C. J.; "Whatever may have been the rule formerly, it seems to us, that, under our Code of Procedure, the matter is made very clear. A denial ad- mits proof of no affirmative defence as the general issue did. It merely puts the plaintiff upon the proof of his averments, and authorizes the defendant, by his evi- dence, to controvert their truth. He can offer no evidence which proceeds upon the ground that the complaint is true, but that there are other facts which pre- clude the plaintiff's recovery notwith- standing." * Northfup V. Miss. Valley Ins. Co., 47 Mo. 435, 443, per Wagner J.: "When new matter is relied on in evidence or in defence, it must be set out in the answer. Under the old system, by pleading the general issue, everything was open to proof which went to show a valid defence. But the Practice Act, which has substi- tuted for the general issue an answer, and requires a statement of any new matter constituting a defence, in addition to a special denial of the material allega- tions of the petition intended to be con- troverted, has worked a total change in the principles of pleading. The defend- ant, by merely denying the allegations in the plaintiff's petitition, can try only such questions of fact as are necessary to sus- tain the plaintiff's case. If he intends to rely upon new matter which goes to defeat or avoid the plaintiff's action, lie must set fgrth, in clear and precise terms, each substantial fact intended to be so relied on. It follows, that, whenever a defendant intends to rest his defence upon any fact which is not included in the allegations necessary to the support of the plaintiff's case, he must set it out according to the statute, or else he will be precluded from giving evidence of it on the trial." 6 Greenfield v. Mass. Mut. Life Ins. Co., 47 N. Y. 430, 437, per Grover J. ; Wheeler i;. Billings, 38 N. Y. 263. 710 CIVIL REMEDIES. scope of and limitations upon this form of traverse were well illustrated in a very recent case decided by the New York Court of Appeals. The complaint alleged that the plaintiff was owner of certain shares of stock in a corporation ; that the stock had been transferred to one W. to hold for the plaintiff; that W., without the plaintiff's knowledge, had transferred the same to the defendant, in payment, as defendant claimed, of a debt due from him to defendant ; and prayed that defendant might be compelled to re-transfer and deliver the same to the plaintiff. The answer was a general denial. The nature and extent of the issues thus presented were discussed, and the principle which controlled them was stated by Mr. Justice Grover, who pro- nounced the defence inadmissible.-^ § 664. A general denial being pleaded in an action on a non- negotiable note brought against the maker thereof, evidence designed to show a want of consideration was rejected at the trial. The New York Supreme Court, in reviewing this ruling, very properly held that this defence may be proved under an answer of denial in actions upon all contracts which do not import a consideration.^ While the very point decided, that evi- 1 Weaver v. Barden, 49 N. Y. 286, new matter, but such only as tended to 297 : " To establish a cause of action, the disprove any fact that the plaintiff must plaintiff was bound to prove that he was prove to sustain his case." The court, the legal owner of the stock, or was however, did not pass upon the question equitably entitled to it as against the thus discussed by Grover J. : the decision defendant. Under this answer the de- was placed upon a different ground ; viz., fendant had a right to give evidence that defendant was not a bona Jide pur- controverting any fact necessary to be chaser. established by the plaintiff to authorize a ^ jEvans v. Williams, 60 Barb. 346, per reconveyance, but not to prove a defence T. A. Johnson J. : " Want of considera- fqunded upon new matter." Recapitulat- tion could always be shown under the ing the facts actually proved by the general issue. Anything whiuh tended plaintiff, — namely, those alleged in the to show that a. party to an instrument complaint as above stated, and that W. never had a cause of action against the held the stock as a trustee for. the plain- other party to it was always competent tiff, — he continued : " This established under the general denial of the cause of the plaintiff 's right to the stock as action alleged, and is so still. The rule against the defendant, unless he was a does not apply to the holder of negotiable bona Jide purchaser from W. To meet paper who takes it in good faith. But ihis case, the defendant offered to prove this is not a negotiable note. A general in substance that he was a bona file pur- denial now, like the general issue under chaser from W. The Special Term held, the former practice, puts in issue the ex- against plaintifi 's objection, that this istence, at any time, of the cause of ac- was admissible under the answer. This tion alleged in the complaint, and admits was error. Under the general denial, the of evidence tending to establish such de- defendant could not introduce evidence fence. If a cause of action has once ac- tending to show a defence founded upon crued or existed, and has been satisfied ISSUES FORMED BY THE GENERAL DENIAL. 711 dence of a want of consideration could be admitted, is undoubt- edly correct, the opinion as a whole is very careless and inaccurate, and the general criterion which it lays down is clearly erroneous. There are many classes of defences which show that a cause of action never existed, and which cannot be proved under the general denial, but must be pleaded ; as, for example, illegality, fraud, duress, and the like. The learned judge was entirely misled by the analogies drawn from the ancient practice. The general denial puts in issue the facts, which, if true, consti- tute a prima facie cause of action. A consideration is, in general, one of these facts in actions upon contract. When these facts are admitted, but by reason of some extraneous features or ele- ments affecting them they do not produce the otherwise necessary result, that element which constitutes the defence, and which destroys the prima facie legal aspect of the facts, is certainly not put in issue by the general denial : it is new matter, and must be specially pleaded. § 665. The courts of one State alone dissent from this course of judicial decision, and give to the general denial of the code something of the comprehensive operation which belonged to the general issues of non-assumpsit and nil debet at the common law. The construction adopted in California seems to regard the gen- eral denial — certainly in actions upon contract — as admitting any defences which show that there is no subsisting cause of action at the time of the commencement of the suit. At least the defence of payment is thus held admissible ; and, if it be so, other similar defences, such as release, accord and satisfaction, and the like, cannot vi^ith consistency be rejected. This doctrine of the California courts is stated and illustrated in the following cases : In an action upon contract the complaint contained three counts, each in the form of the common-law indebitatus assumpsit. The answer was a general denial. Upon these issues the court said : " In each count of the complaint there is an averment that on, &c., the defendant was indebted to the plaintiff in a specified sum, and promised to pay it, but therein has made default. The answer contained a general denial, which made it incumbent on the plaintiff to prove a subsisting indebtedness from the defend- ant to the plaintiff at the time of the institution of the suit. or defeated by reason of something whiuh matter, which must be pleaded in order to has occurred subsequently, that is new render it competent as evidence." 712 CIVIL EEMEDIES. Under this denial, it would have been competent for the defend- ant to prove payment.^ For the same reason, it is competent to show that the plaintiff had transferred the demand, and that the defendant, therefore, was not indebted to him." ^ In another case upon a promissory note the complaint was in the usual form, setting out the note, and alleging that it had not been paid, and that there was due upon it a specified sum, for which judgment was demanded. The answer was the general denial. " The question is," said the court, " whether the general denial presents any issue of fact. In Frisch v. Caler,i this question was fully considered. The statute then in force required a replication to new matter in the answer. The answer averred that the note in suit had been paid by the defendant ; and it was contended that that averment was admitted because of the failure on the part of the plaintiff to file a replication denying it. But the court held that it was not new matter ; that the failure to pay the note con- stituted the breach, and must be alleged ; and that the allegation in the answer — that it had been paid — was only a traverse of the allegation in the complaint that it had not been paid. (See also Brown v. Orr.) ^ The doctrine then laid down has not since been departed from, so far as we are aware, except in the case of Hook V. White ; * and that case, so far as it holds that the allega- tion in the complaint that the note remains unpaid is immaterial, and that a denial of the allegation does not put any fact in issue, ought, in our opinion, to be overruled. The general denial in this case puts in issue the averment of the complaint, that the prom- issory note remained due and unpaid." ^ This decision falls far short of sustaining the sweeping doctrine of Mr. Justice Crockett, in the preceding case of Wetmore v. San Francisco, as to the effect of the general denial. When the opinion of Mr. Justice Rhodes is analyzed, it does not in fact lay down any principle different from that maintained by the cases cited from the courts of other States. It simply asserts that the general denial puts in issue the allegations of the complaint, and that the negative averment of non-payment, when traversed in this manner, produces a com- 1 Frisch v. Caler, 21 Cal. 71; Brown Cal. 572, 574; Brooks v. Chilton, 6 Cal. V. Orr, 29 Cal. 120 ; Davanay v. Eggen- 640. hoff, 43 Cal. 395. s Brown v. Orr, 29 Cal. 120. 2 Wetmore v. San Francisco, 44 Cal. « Hook v. White, 36 Cal. 299. 294, 299. 300, per Crockett J. ; and see « Davanay v. Eggenhoff, 43 Cal. 395, especially Faircliild v. Amsbaugh, 22 397, per Rhodes J. ISSUES FOEMED BY THE GENERAL DENIAL. 713 plete issue, under which evidence of payment may be offered. This is very far from holding, with Crockett J., that the defence of payment is admissible under the general denial in all cases. § 666. The foregoing extracts from the judgments of so manj'- courts leave little room and little need for any addition by way of comments. The unanimity of opinion in respect to the funda- mental principles of pleading embodied in the codes is almost abso- lute ; and this principle has been so clearly formulated by several of the judges, that no difficulty ought to arise in its practical appli- cation. The office of the general denial, like that of the old trav- erses, is twofold : it forces the plaintiff to prove all the material allegations of fact contained in his complaint or petition, and con- stituting his cause of action, by sufficient evidence at least to make out a prima facie case ; it also permits the defendant to offer any and all legal evidence which controverts those aver- ments, and contradicts the plaintiff's proofs. It is clear that no exact statement can be made defining with universal precision what particular issues the general denial raises in all possible cases, and what particular defences it admits ; and in this respect it differs from the general issue. As a result of the common-law methods of pleading, and the uniformity of averment necessarily used in all actions of the same class, the operation of the general issue in every suit was exactly defined ; and this was especially so after the rules made in 4th William IV. (1834.) Certain averments, and none others, of the declaration, were put in issue by it ; certain defences, and none others, were admissible under it. This precise rule cannot be laid down in respect of the gen- eral denial, because there is no necessary uniformity in the aver- ments of complaints or petitions in actions of the same kind brought on the same substantial facts, and seeking the same relief. As the general denial puts in issue all the material allega- tions made by the plaintiff, and admits all evidence contradicting them, what issues it actually raises, and what defences it actually admits, in a given case, must depend upon the frame of the com- plaint or petition, and upon the number and nature of the allega- tions which the plaintiff has inserted therein. It could be said of the general issue in all actions upon contract, — assumpsit, debt, covenant, — after the rules of Hilary Term, 1834,thatthe defence of payment was never admissible under it. If we would speak with perfect accuracy, such language cannot be adopted as the 714 CIVIL KEMEDIES. expression of a universal rule in respect of the general denial ; for the plaintiff may so shape his pleading, and introduce into it such a negative averment of non-payment, that the proof of pay- ment would be simply supporting the general denials of the answer. Several cases already cited sufficiently sustain the correctness of this position ; and others, to be hereafter more particularly referred to in a subsequent portion of this section, and in the next section under the head of Payment, will furnish various examples of this feature of distinction between the gen- eral denial and the general issue.^ Additional cases, bearing upon the nature and effect of the general denial, are collected in the foot-note.^ § 667. As the general denial forms an issue upon the entire cause of action set up by the plaintiff, and forces him to prove the same substantially as alleged, the question becomes one of great practical importance : What are the averments in the com- plaint or petition which are thus negatived, and which must be established by sufficient proof on the trial ? The full answer to this question belongs rather to a discussion of the requisites of the plaintiff's than of the defendant's pleading, and will be found in Chapter Third. The universally accepted rule is, that only those averments of the complaint or petition which are material and proper are put in issue by a denial either general or specific 1 See Quin v. Lloyd, 41 N. Y. 349 ; Johnson v. Cuddington, 35 id. 43 ; Brett v. Marley v. Smith, 4 Kans. 183; Frisch v. First Univ. Soc, 63 Barb. 610, 616 ; Cat- Caler, 21 Cal. 71 ; "White v. Smith, 46 lin v. Gunter, 1 Duer, 253, 265; Robinson N. Y. 418; Van Gieson u. Van Gieson, 10 v. Frost, 14 Barb. 536, 541; Texier v. N. Y. 316. Gouin, 5 Duer, 389, 391 ; Dy.son v. Ream, 2 Button V. McCauIey, 38 Barb. 413 ; 9 Iowa, 51 ; Scheer v. Keown, 34 Wis. Schular v. Hudson River R. R., 38 Barb. 349, 356. The conclusions of the text as 653; Schermerhorn !). Van Allen, 18 Barb, to what allegations in the plaintiff's 29 ; Hendricks «. Decker, 35 Barb. 298 ; pleading the general denial puts in issue Perkins v. Ermel, 2 Kans. 325 ; Adams and compels him to prove, and what evi- Ex. Co. ». Darnell, 31 Ind. 20 ; Lafayette dence it admits on the part of the defend- &c. R. R. ti. Ehman, 30 id. 83 ; Watkins ant, are further illustrated by Paris v. V. Jones, 28 id. 12; Frybarger v. Coke- Strong, 51 Ind. 339; Stafford v. Nutt, 51 fair, 17 id. 404; Bingham o. Kimball, 17 id. 535; Bate v. Sheets, 50 id. 329; Mor- id. 396 ; Norris v. Amos, 15 id. 365 ; gan v. Wattles, 69 id. 260 ; McWilliams v. Hawkins v. Borland, 14 Cal. 413; God- Bannister, 40 Wis. 489; Moulton v. dard o. Fulton, 21 Cal. 430; City of Thompson, 26 Minn. 120 ; School Dist. «. Evansville v. Evans, 37 id. 229, 236 ; Shoemaker, 5 Neb. 36 ; Jones u. Seward Hier v. Grant, 47 N. Y. 278 ; Schaus v. Co., 10 id. 154 ; Scott v. Morse, 54 Iowa, Manhattan Gas-Light Co., 14 Abb. Pr. 732 ; Amador Co. v. Butterfield, 51 Cal. (n. s.) 371; Hunter v. Matliis, 40 id. 626 ; Elder k. Spiuks, 53 id. 293. 356 ; Ammerman c Crosby, 26 id. 451 ; ISSUES FORMED BY THE GENERAL DENIAL. 715 in its form. " Material " or " proper " are not, however, synony- mous with " necessary." A plaintiff may insert in his pleading allegations which are unnecessary in that position, and which are not in conformity with the perfect logic of the system, but which, when once introduced, become " material," so that an issue is formed upon them by a general or a specific denial. The in- stance just mentioned, of an allegation of non-payment in the complaint met by a denial in the answer, is a familiar example of such averments, material, although not necessary. § 668. It is an elementary doctrine of pleading under the new system, that only the issuable facts — that is, the conclusions of fact which are essential to the existence of the cause of action, or upon which the right to relief wholly or partially depends in equitable suits — are material, and are therefore put in issue by the denial ; and the converse of the proposition is true, that the averments of mere evidentiary facts, if inserted in the pleading, are not thus controverted. Although this doctrine is elementary, and appears so simple in the statement, it is nevertheless some- times exceedingly difficult of application in practice ; and the difficulty is enhanced by the frequent inconsistencies of courts in dealing with it. While the general principle, as just stated, is constantly affirmed, yet there are numerous instances of particu- lar causes of action in which the plaintiffs are required to set out in detail matter which is plainly evidentiary, and which is only of value as leading the mind to a conviction that the final or issu- able fact, which is one necessary element of the right of action, exists. In other words, the courts have often, while dealing with particular cases, violated the elementary principle which applies, or should apply, to all cases ; and the result is confusion and un- certainty. It is possible, however, to distinguish between issua- ble, material facts, and evidentiary facts, by an unfailing criterion. In all particular instances of the same cause of action based upon the same circumstances, — that is, arising from the same primary right in the plaintiff, broken by the same delict or wrong on the part of the defendant, — the material or issuable facts which are the essential elements of the right of action must be the same : immaterial circumstances, the time, place, amounts, values, ex- tent of damages, parties, and the like, will be different; but the substantial elements of the cause of action, the facts which con- stitute it, must in every instance of the same species be the same. 716 CIVIL KEMEDIES. On the other hand, the evidentiary matter, the mass of subor- dinate facts and circumstances which must be actually proved, and from which the above-described essential elements result as inferences more or less direct, may vary with each particular instance of the same species of cause of action. The former class of facts are material, issuable, and, when the theory of pleading in legal actions is strictly observed, they alone should be averred, and they alone should be treated as put in issue by the denials, general or specific: the second class of facts — the proper evi- dentiary matter — should not be pleaded, and, if improperly averred, should not be regarded as put in issue by the denials of the defendant. This is the true theory, and is again and again commended by the courts ; but, at the same time, it is constantly violated by the same courts in their requirements in respect to the pleading in certain species of causes of action. Another source of difficulty in applying the elementary doctrine is found in the circumstance, that not infrequently the material, issuable fact which must be averred, and which is put in issue, is iden- tical with the fact which must be actually given in evidence. In respect of such matters there are no steps and grades, and pro- cesses of combination and deduction, by which the issuable fact alleged is inferred from the evidentiary fact proved. The two are one and the same ; and thus matter which is truly evidence must in such case be alleged, and matter which is the proper sub- ject of allegation must be directly given in evidence. § 669. Another and the final element which should belong to the averments in tlie complaint, in order that an issue may be raised thereon by the denial, is, that they must be of fact, and not of law. This particular topic has already been treated of in a former subdivision of the present section. The reformed system of pleading, unlike that of the common law, authorizes no issues to be raised by allegations of legal conclusions, and denials of the same. Although there are traces to be found in some of the cases of the ancient forms of averment in indebitatus assumpsit and in debt, and of answers resembling the plea of nil debet, yet all the decisions of present authority unite in theoretically con- demning such a mode of pleading. I need not, however, dwell upon this particular rule, nor again refer to cases which have been so recently cited. An allegation of law in the plaintiff's pleading is not controverted by the defendant's denial: no issue DEFENCES ADMITTED UNDER A DENIAL. 717 is formed thereby under which evidence can be admitted from either party. § 670. Second. The General Nature of the Evidence which may he admitted, and the Defences which may he proved, under the Denials of the Answer. The judicial opinions quoted under the preceding head sufficiently establish the principle which controls all the questions embraced under the present, and the cases to be cited in the following one will illustrate the application of that principle. In fact, it is so intimately bound up witli the subject last discussed, that it has already been stated and explained. I shall, however, recapitulate and restate this fundamental doc- trine. The material allegations of the complaint or petition, when denied either generally or specifically, determine in each case what evidence and what defences may be given and estab- lished by the defendant. It is impossible to say of any class of cases, that such or such evidence can or cannot be offered as a matter of certain rule, or that such or such a defence can or can- not be set up. As the plaintiff is bound by no inflexible rule as to the form of his pleading, and as to the averments he may choose to introduce into it, so he can widen or contract within distant extremes the extent and nature of the evidence and de- fences which may be interposed by the defendant under a denial.^ As the denial puts in issue all the material allegations of fact made by the plaintiff, whether originally necessary or not, he is at liberty to introduce all and any legal evidence which tends to sustain those allegations. On the other hand, under the same issue, the defendant is entitled to offer any evidence which tends to contradict that of the plaintiff, and to deny, disprove, and overthrow his material averments of fact. This is the funda- mental and most comprehensive doctrine of pleading embraced in the new procedure, and it of course determines the nature of the defences which may be set up under a general denial. It is to be observed — although the remark is perhaps unnecessary — that the defendant may in this manner attack any material alle- gation of fact, and thus, if possible, defeat the recovery, while the others are left unanswered or unassailed.^ 1 See Chicago, &c. R. R. v. West, 37 Scott v. Morse, 54 Iowa, 732 ; Roe v. Ind. 211, 215. Angevine, 7 Hun, 679 ; Manning v. Win- 2 As further illustrations of the text, ter, 7 id. 482 ; Boomer v. Koon, 6 id. 645 ; see Jones v. Seward Co., 10 Neb. 154; Andrews v. Bond, 16 Barb. 633; Beaty v. 718 CIVIL EEMEDIES. § 671. As the allegations of the complaint or petition contro- verted by the denials of the answer determine the nature and extent of the evidence adrnissible under such denials, it follows that this evidence may be sometimes negative and sometimes afiSrmative. Herein lies the source of much confusion and uncer- tainty as to the character of the defendant's proofs and defences, and as to their admissibility under the general denial. Evidence in its nature affirmative is often confounded with defences which are essentially affirmative and in avoidance of the plaintiff's cause of action, and is therefore mistakenly regarded as new matter re- quiring to be specially pleaded, although its effect upon the is- sues is strictly negative, and it is entirely admissible under an answer of denial. In other words, in order that evidence may be proved under a denial, it need not be in its own nature nega- tive : affirmative evidence may often be used to contradict an allegation of the complaint, and may therefore be proved to maintain the negative issue raised by the defendant's denials. One or two familiar examples will sufficiently illustrate this pro- position. In certain actions, property in the plaintiff, in respect of the goods which are the subject-matter of the controversy, is an essential element of his claim. His complaint, therefore, avers" property in himself : the allegation is material, and is, of course, put in issue by the general or specific denial. To maintain this issue on his part, the plaintiff may give evidence tending to show that he is the absolute owner, or has the requisite qualified prop- erty. The defendant may controvert this fact in two modes. He may simply contradict and destroy the effect of the plaintiff's proofs, aud in this purely negative manner procure, if possible, a decision in his own favor upon this issue. The result would be a defeat of the plaintiff's recovery by his failure to maintain the averment of his pleading: but the jury or court would not be called upon to find that the property was in any other {)erson ; the decision would simply be, that the plaintiff had not shown it to be in himself. On the other hand, the defendant, not attempt- ing directly to deny the testimony of the plaintiff's witnesses, and to overpower its effect by directly contradictory proofs, may in- troduce evidence tending to show that the property in the goods Swarthout, 32 id. 293 ; Schermerhorn v. 278 ; Dunham v. Bower, 77 id. 76 ; Van Allen, 18 id. 29 ; Scharz v. Oppold, Brown v. College, &c., 56 Ind. 110. 74 N. Y. 307, 309 ; Heir v. Grant, 47 id. DEFENCES ADMITTED UNDER A DENIAL. 719 is, in fact, in a third person. This evidence, if convincing, would defeat the plaintiff's recovery. It would be affirmative in its direct nature ; but its ultimate effect, in the trial of the issue raised by the answer, would be to deny the truth of the plaintiff's averment. Such evidence, although immediately affirmative, would still, for the purpose of determining the issue presented by the pleadings, be negative. Again : in an action on a promis- sory note against the maker or indorser, the complaint might allege title in the plaintiff, and the fact that he was the owner and holder thereof. T^e answer of denial would put? this aver ment in issue, as it would be material, and its truth essential to the recovery. Proof by the defendant, that, prior to the com- mencement of the action, the plaintiff had assigned the note to a third person, would be af&rmative in its immediate nature, but negative in its effect upon the issue ; for it would controvert the truth of the plaintiff's allegation. Cases cited under the next subdivision hold that the evidence which I have thus described in both of these examples is admissible under the general denial. § 672. The theory of the general denial is completed b)'^ con- sidering what evidence cannot be given, and what defences can- not be set up, under it. This subject will be discussed at large in the following section : but some reference to it is appropriate in the present connection. The codes divide defences into denials and new matter. New matter must be specially pleaded. De- fences at the common law were separated into traverses general and special, and pleas by way of confession and avoidance. The general traverses were the general issues, and special traverses were denials of some particular allegation. The common-law distinction between these classes of defences was generally stated by the text-writers as follows : The general issue, when used in accordance with the original theory in those actions which ad- mitted its full efficacy, put in issue the entire cause of action, and under it the defendant was permitted to offer any evidence and set up any defence which showed that the right of action never, in fact, existed. The plea by way of confession and avoid- ance, on the other hand, did not deny the facts from which the cause of action arose. It admitted or " confessed " that a cause of action once existed as averred, and set up other and subse- quently occurring facts which showed that the right after it had occurred had been in some manner discharged, satisfied, or de- 720 CIVIL EEMEDIES. feated. Is it possible to draw the same distinction between the general denial and the new matter of the code ? I answer, It is not. Such a distinction, although correct in many instances, is not true absolutely. One reason for this is, that the plaintiff may so frame his complaint or petition, may insert in it allega- tions of such a sort, that a general denial will admit proof of facts which would be strictly matter by way of confession and avoid- ance under the former procedure. Certain passages in judicial opinions which have identified the " new matter " of the codes with the plfeas by way of confession and avoidance of the com- mon law, are, therefore, inaccurate : they were written by their authors in forgetfulness of the inherent difference between the fixed forms of the common-law declarations, and the varying forms of the complaints and petitions which may properly, though not perhaps scientifically, be used under the new sys- tem. To illustrate : Payment after breach of a contract, and therefore after a cause of action arose, is certainly matter by way of confession and avoidance ; and yet a complaint may be so drawn that payment will not be new matter, but will be prov- able under a general denial. Other examples might be given ; but this single one sufiBces. § 673. The result is, that the new matter of the code does not, like the matter in confession and avoidance of the common law, depend upon the essential nature of the cause of action and of the defence, but, like the effect of the general denial, it depends pri- marily upon the nature of the material allegations which are em- braced in the complaint. Any facts which tend to disprove some one of these allegations may be given in evidence under the denial ; any fact which does not thus directly tend to disprove some one or more of these allegations cannot be given in evi- dence under the denial. It follows, that if such fact is in itself a defence, or, in combination with others, aids in establishing a defence, this defence must be based upon the assumption, that, so far as it is concerned, all the material allegations made by the plaintiff are either admitted or proven to be true. The facts which constitute or aid in constituting such a defence are " new- matter." In this respect the new matter of the codes is analo- gous to the pleas by way of confession and avoidance of the com- mon law, since it does, in truth, confess and avoid. The two definitions may now be given, and their contrast will be plain. DEFENCES ADMITTED UNDER A DENIAL. 721 A plea by way of confession and avoidance admitted that the cause of action alleged did once exist, and averred subsequent facts wliich operated to discharge or satisfy it. The new matter of the codes admits that all the material allegations of the com- plaint or petition are true, and consists of facts not alleged therein which destroy the right of action, and defeat a recovery. To sum up these conclusions, the classification of and distinction between defences at the common law depended upon the intrinsic, essen- tial nature of the causes of action and of the defences. The analogous classification and distinction between defences admis- sible under a denial, and those which are new matter, in the new procedure, depend primarily upon the structure of the complaint or petition, and the material averments of fact which it contains. All facts which directly tend to disprove any one or more of these averments may be offered under the general denial: all facts which do not thus directly tend to disprove some one or more of these averments, but tend to establish a defence independently of them, cannot be offered under the denial ; they are new mat- ter, and must be specially pleaded. I shall now apply these gen- eral principles to some particular instances. § 674. Third. Some Particular Defences which have been held Admissible under the G-eneral Denial. I shall in this subdivision classify and discuss only those cases in which defences have been held admissible : those which have been pronounced inadmissible, for the reason that they fell within the denomination of " new ma1> ter," will be given in the next succeeding section. ^ In an action by an attorney and counsellor to recover compensation for pro- fessional services, the complaint stating the retainer, the services and their value, and the answer being a general denial, the plain- tiff proved the services, and gave evidence showing their reason- able value. It was held that the defendant might, under his denial, show that the services were rendered upon a special agree- ment to the effect that the plaintiff would look to the recovery of costs from the adverse party as his sole mode of compensation, and would make no personal claim against the defendant.^ And 1 For a summary of recent decisions, allegation of indebtedness, the plaintiff see the additions, to the last note under had proved certain services rendered and §682. their value. It was surely competent for 2 Schermerhorn v. Van Allen, 18 Barb, the defendant, under a denial of such in- 20, per Parker J. . " The evidence vpas debtedness, to prove that he never in- improperly excluded. Under a general curred or owed the debt. He had a right 46 722 CIVIL REMEDIES. in a similar action under the same answer the defendant may- prove the plaintiff's negligence and want of skill, by which the value of the services was diminished or destroyed.^ In general, in actions to recover compensation for work and labor upon a quantum meruit the defendants may, under the general denial, prove that the work was negligently or unskilfully done, and thus contest its value ; ^ and may prove that the plaintiff had assigned and transferred the demand before suit brought, for this controverts the defendant's indebtedness to him.^ § 675. In actions for injuries to person or property alleged to have resulted from the defendant's negligence, he may prove under a general denial that the wrong was caused by the negli- gence of third persons not agents of the defendant, and for whom he was not responsible;* or may prove contributory negligence of, the plaintiff.^ In accordance with the principle of these de- cisions, the defence of non superior is always admissible under a general denial of complaints which allege the commission of in- juries by means of defendant's servants, employees, or agents. § 676. In an action upon a promissory note or other security, the defendant may under the general denial show an assignment of the thing in action to a third person before the suit was com- menced, since this directly controverts the averment of title in to prove that the services were rendered 294, 299. And in an action for goods sold as a gratuity, or that the plaintiff himself and delivered, the defendant may show had fixed a less price for their value than that the plaintiff acted as agent for an- he claimed to recover. Tlie services otlier person, whose name was disclosed, being proved, the defendant might show and who was the actual vendor. Merritt that they were rendered, not for him, but v. Briggs, 57 N. Y. 651. on the credit of some other person, or * Schular v. Hudson River R. R., 38 thattheplaintiffhimself undertook to run Barb. 653 ; Schaus u. Manhattan Gas- tlie rislj of the litigation. It was not an Light Co., 14 Abb. Pr. n. s. 371 ; Jackson attempt to show an extinguishment of v. Feather River, &c. Co., 14 Cal. 18 ; the indebtedness by payment, release, or Adams Ex. Co. v. Darnell, 31 Ind. 20. In otherwise; but it was an offer to show this case, proof that the goods were stolen that such indebtedness never existed, was admitted in an action against a com- Tlie defendant was at liberty to prove mon carrier. any circumstances tending to show that ^ Schaus v. Manhattan Gas Co., 14 he was never indebted at all, or that he Abb. Pr. n. 8. 371 ; New Haven, &c. Co. owed less than was claimed." v. Quintard, 6 Abb. Pr. n. s. 128 ; Indian- 1 Bridges v. Paige, 13 Cal. 640, 641. apolis, &c. R. R. v. Rutherford, 29 Ind. 82 ; 2 Raymond v. Richardson, 4 E. D. Jeffersonville, &c. R. R. w. Dunlap, 29Ind. Smith, 171. But under a mere denial of 426 ; Hathaway v. Toledo, &c. R. R., 46 tlie value, the defendant cannot show that Ind. 25, 27. This decision is placed upon the services were not rendered. Van the ground that in Indiana tlie plaintiff Dyke v. Maguire, 57 N. Y. 429. must allege and prove the absence of 8 Wetmore v. San Francisco, 44 Cal. negligence on his part. DEFENCES ADMITTED UNDER A DENIAL. 723 the plaintiff;' and where the note is non-negotiable, a want of consideration may be shown.^ The general denial to a com- plaint in the ordinary form, for goods alleged to have been sold and delivered by the plaintiff, admits the defence that a third person who actually made the sale was himself the owner of the goods, and was not acting in the transaction as agent for the plaintiff; for this proof contradicts the allegation of a sale by the plaintiff: ^ and that the person who actually bought the goods in the name of the defendant was not the latter's agent, but that his prior authority had been revoked, and the plaintiff had been notified thereof; for this proof contradicts the allega- tion of a sale to the defendant.* § 677. In an action for the conversion of chattels, the com- plaint of course averring property in the plaintiff, the general denial permits the defendant to show that the property is not in the plaintiff;^ as, for example, by proving that a third person is owner of the goods either by an absolute or qualified title. ^ This latter proposition is, however, denied by some of the cases, which hold that the defence of property in a third person, or in the 1 Andrews v. Bond, 16 Barb. 633. And see Wetmore v. San Francisco, 44 Cal. 294, 299. The exact contrary is held in Brett V. First Univ. Soc, 63 Barb. 610, 618, per Leonard J. The opinion in this case is, however, manifestly incorrect. Under the denial of " execution " in an action on a note or other written contract, the defendant may prove that his signa- ture was obtained by fraud, Corby i: Weddle, 57 Mo. 452, 459 ; or that the in- strument was not delivered, Fisher v. Hamilton, 48 Ind. 2.'59. But see Dunning u. Rumbaugh, 36 Iowa, 566, 568. In an action upon an account stated for services, the defendant cannot, under the general denial, attack any of the items in the ac- count, Warner v. Myrick, 16 Minn. 91. The defence of alteration cannot be shown under the general denial in an action upon a written contract. Boomer v. Koon, 6 N. Y. S. C. 645. This citation of Boomer V. Koon is an error. The opinion of Mul- lin J. reported in the volume cited as the prevailing opinion is a dissenting opinion. The decision of the court is reported in 6 Hun, 645, and is exactly the opposite of that stated above ; it holds that the de- fence was (idmisstbte. 2 Evans v. Williams, 60 Barb. 346; Bondurant „. Bladen, 19 Ind 160; But- ler V. Edgerton, 15 Ind. 15. But not wlien the consideration is presumed, as in a sealed instrument or negotiable paper, Dubois V. Herniance, 56 N. Y. 673, 074 ; Eldridge v. Mather, 2 N. Y. 157 ; Weaver V. Barden, 49 N. Y. 286. 3 Hawkins v. Borland, 14 Cal. 413 ; and see Ferguson v. Ramsey, 41 Ind. 511, 513. i Hier n Grant, 47 N. Y. 278 ; and see Day )'. Wamsley, 33 Ind. 145, in which the defence was admitted that the goods were sold to defendant's wife, who had left him without cause, against his con- sent, and without his knowledge. 5 Robinson w. Frost, 14 Barb. 536. " Davis V. Hoppook, 6 Duer, 254. He may show title in himself or in a tliird person. Sparks v. Heritage, 45 Ind. 66; Kennedy v. Shaw, 38 Ind. 474 ; Farmer V. Calvert, 44 Ind. 209, 212 ; Thompson V. Sweetser, 43 Ind. 312 ; Davis v. War- field, 38 Ind. 461. See also Jones v. Rahilly, 16 Miim. 320, 325. 724 CIVIL REMEDIES. defendant, must be specially pleaded.^ Under a general denial in the same action, or a specific denial of the conversion, any facts may be proved in defence which go to show that there was no conversion ; as, for example, that the goods were lost without fault of the defendnnt,2 or were taken under an execution against the plaintiff.* § 678. When the action is brought to recover possession of goods, the complaint alleging title or right of possession in the plaintiff, the defendant may, under the general denial, introduce evidence to show that the plaintiff is not the owner nor entitled to possession of the chattels,* but cannot show that the plain- tiff's title is fraudulent and void as against his creditors.^ Nor can the defendant in such action, when the record presents the same issue, justify as sheriff under process against A., and assert that the goods in controversy were the property of A. fraudu- lently transferred to the plaintiff: this defence is new matter, and must be pleaded.^ § 679. In an action to recover possession of land, if the com- plaint is in the usual form, merely averring that the plaintiff is owner in fee of the premises described and entitled to their pos- session, and that the defendant unlawfully withholds the same, the general denial admits proofs of anything that tends to defeat the title which the plaintiff attempts to establish on the trial.' 1 Dyson D. Ream,, 9 Iowa, 51 ; Patter- Farmer v. Calvert, 44 Ind. 209, 212; son V. Clark, 20 Iowa, 429. The doctrine Thompson v. Sweetser, 43 Ind. 312. of these eases is clearly opposed to the ^ Frisbee «. Langworthy, 11 Wis. 375. true theory of the general denial. ^ Qlazer v. Clift, 10 Cal. 303. 2 WiUard v. Giles, 24 Wis. 319, 324. " Lain v. Shepardson, 23 Wis. 224. 8 McGrew v. Armstrong, 5 Kans. 284; 228, per Paine J. : " Under such a com- or that the goods were taken with the plaint, the plaintiff is allowed to show plaintiff's consent, Wallace v. Robb, 37 any title he can ; and, from the necessities Iowa, 192, 195 ; and the defendant in such of the case, the defendant, under a me-e action may prove any facts in reduction of denial, must be allowed to prove anything damages ; as, for instance, that the maker tending to defeat the title which the plain- was insolvent in an action for the conver- tiff attempts to establish. He cannot be sion of a note made by a third person, and bound to allege specific objections to a title owned by the plaintiff. Booth o. Powers, which the complaint does not disclose, 56 N. Y. 22, 27, 31, 33 ; Quin u. Lloyd, and which he may have no knowledge of 41 N. Y. 349. until it is revealed by the evidence at the 4 Caldwell v. Bruggerman, 4 Minn, trial." Mather v. Hutchinson, 25 Wis. 270; Woodworth v. Knowlton, 22 Cal. 27; Miles v. Lingerman, 24 Ind. 385; 164. In this case, defendant proved that Marshall v. Shafter, 32 Cal. 176 ; the de- the 'goods were the property of a third fendant may prove title in himself, and person. See also Sparks t.-. Heritage, 45 an allegation to that effect in the answer Ind. 66; Kennedy v. Shaw, 38 Ind. 474 ; is not new matter ; Bruck c.. Tucker, 42 DEFENCES ADMITTED UNDER A DENIAL. 725 In some States the defence of the Statute of Limitations may even be relied upon in this action under a general denial ; ^ hut cannot be in the other States, whose codes expressly require the statute to be pleaded.^ An equitable defence to the action must, however, as it seems, be specially pleaded ;•'' and the defence that a deed to the plaintiff absolute on its face, under which he claims title, is only a mortgage.* § 680. In an action to recover damages for a malicious prose- cution, the complaint alleging malice and the want of a probable cause, the general denial puts these averments in issue, and admits any evidence going to show a want of malice and the existence of a probable cause ; as, for example, when the com- plaint charged that the defendant wrongfully procured the plain- tiff to be indicted, proof on the part of the defendant that he was a grand juror, and that all the acts complained of were done by him in that capacity, was held proper.^ The same principle must apply to all cases in which malice is an essential ingredient in the right of action, and is alleged in the complaint or petition : all facts tending to disprove the malice are clearly admissible under the denial. § 681. When the general denial is pleaded in an action to com- pel the specific performance of a contract to convey land, it is held in some cases that the defence of the Statute of Frauds may be relied upon : for the answer puts the existence of the contract in issue : ® other cases, however, hold the contrary, and require the statute to be pleaded.'' And the Statute of limitations may Cal 346 351 • Bledsoe ^. Simms, 53 Mo. be proved under the general denial, be- 305,307.' In'several States, by virtue of cause it controverts the plaintiff's %«/ the statute, every defence, legal or equi- title. To this effect is Brown v. Freed, 43 table, may be proved under the general Ind. 253, 254-257, and cases cited. denial, Vanduyn .. Hepner. 45 Ind. 589, * Davenport t- Turpm 43 Cal, 59, ; 591 ; Franklin ,.. Kelley, 2 Neb. 79, 113- Hughes v. Davis, 40 Cal 117 115 ffraud) Aramerman v. Crosby, 26 Ind. 451 ; 1 Nelson v. Brodback, 44 Mo. 596; Hunter v. Mathis, 40 Ind. 356; Rost ,-. Bledsoe v. Simms, 53 Mo. .305, 307. Harris, 12 Abb. Pr, 446 ; Kadde «^Ruck- 2 Orton «. Noonan, 25 Wis. 672. A gaber, 3 Duer, 684 ; Simpson «. McArthur, defence arising after the commencement 16 Abb. Pr. 302 (n.); ^evyj. Brnnnan, of the action cannot be proved, but must 39 Cal. 485 ; Trogden v. Deckard, 45 Ind. be set up by a supplemental answer. 572; but see Scheer t,. Keown .4 W^. MeLane v. Bovee, 35 Wis. 27, 34. 349, an action for false arrest and im- 3 Stewart r Hoag, 12 Ohio St. 623; prisonment. ooo . wnH Lombard .. Cowham, 34 Wis. 486, 491. " Hook ... Turner, 22 Ma 333, Wild- The court, in the last case, held that, when balin .;. Robidoux, 11 J^l"- t-o-'- the deed under which the plaintiff claims ' Livesey ». LIvesey, oO Ind. SM , Us- is fraudulent and void, that defence may borne v. Endicott, 6 Cal. ay. 726 CIVIL EEMEDIES. be set up under a general denial in the same action, whenever it is not expressly required by the codes, as in certain States, to be pleaded.! § 682. When the complaint in an action upon a covenant of warranty, contained in a deed of land to the plaintiff, alleged the conveyance, the covenant, and a breach thereof by means of an outstanding paramount title and a recovery on the same, the general denial put all these averments in issue, and enabled the defendant to prove any facts going to show that there was no such paramount title.^ In an action upon a judgment recovered in another State, the complaint set out the recovery of the judg- ment, and all the other allegations necessary to constitute the cause of action. The defendant pleaded (1) the general denial ; (2) that there was no such record ; (3) that the judgment was obtained without any notice given to the defendant, without ser- vice of process on him or appearance by him, he being all the time a non-resident of the State in which the judgment was recovered. All the matters alleged in these two special defences were, it was held, embraced within the general denial, and could be proved under it : the defences themselves, according to the well-settled practice in Indiana, were struck out on motion, because they were equivalent to the general denial, and redun- dant.^ 1 Wiswell V. Tefft, 5 Kans. 263. because the defendant, having in his first 2 Rhode V. Green, 26 Ind. 83. In a paragraph pleaded the general denial, creditor's suit to set aside the debtor's cannot be allowed in another paragraph fraudulent transfer of land, the grantee to plead what is in effect the same de- may prove, under the general denial, that fence." The following recent cases show the land was a homestead, for this rebuts what defences have or have not been ad- the alleged fraud charged by the plain- raitted under the general denial in vari- tifi, Hibben . Thompson, 5 * Farmers' Bank v. Sherman, 33 N. Y. Kan. 305. 69. Also, receipt by plaintiff of the 2 White V. Smith, 46 N. Y. 418. See proceeds from collaterals in his hands, also Looby y. West Troy, 24 Hun, 78 (a Wolcott v. Ensign, 53 Ind. 70. special case in which an accord and satis- ' Hart v, Crawford, 41 Ind. 197. EXAMPLES OF NEW MATTER. 743 doctrine is plainly applicable to actions upon any species of writ- ten agreement.^ § 702. The defence of an arbitrament and award covering the same matters in controversy as those stated in the complaint is new matter, and must be pleaded ; ^ and so also is the defence of a former recovery for the same cause of action,^ and of a former partial recovery.'* § 703. Actions to recover Possession of Chattels. In an action to recover possession of chattels, the complaint alleging property in the plaintiff, and the *answer specifically denying the wrongful taking and detention of the goods, and no more, the facts relied upon by the defendant as constituting his actual defence were, that the plaintiff and one G. were partners and the real owners of the goods in question, and that G. had bailed them to the de- fendant, who retained them in virtue of such bailment. This defence, however, was held inadmissible under the pleadhigs, because, first, the unqualified ownership of the plaintiff was ad- mitted on the record by the failure of the answer to deny the allegation of property contained in the complaint ; and, secondly, the authority conferred by one owner, G., upon the defendant, to take and retain possession of the chattels, was new matter, and should have been pleaded.^ And, in a similar action, a defence that the defendant had loaned money to the plaintiff's intestate, who was the late owner of the chattels, and had received from him the possession thereof, and retained them in possession as security for such advances, is new matter, and cannot be proved unless specially pleaded;^ and the same is true of the defence, that the plaintiff's title is fraudulent and void as against his cred- itors.^ § 704. Actions for Torts. In an action to recover damages for 1 Lowry v. Shane, 34 Ind. 495. category ; for the defences admit the con- 2 Brazill v. Isham, 12 N. Y. 9, 17, per tract as stated, and avoid Its effect by Gardiner J. : " The defendants cannot matter ex post facto." avail themselves of the award in this case ^ Hendricks v. Decker, 35 Barb. 298 ; as a defence, as they have not insisted Piercy v. Sabin, 10 Cal. 22 ; Norris v. upon it in their answer. The plaintiff had Amos, 15 Ind. 365. See also Cave v. stated in his complaint a. prima facie canse Crapto, 53 Cal. 135. of action arising on the original retainer ^ Morrell v. Irving Fire Ins. Co., 33 of the defendants. To meet the case thus N. Y. 429, 448. made by new matter constituting a de- ^ Tell v. Beyer, 38 N. Y. 161. fence, it must be set forth plainly in the * Gray r. Fretwell, 9 Wis. 186. answer. An award or former recovery ' Frisbee v. Langworthy, 11 Wis. for the same cause would fall within this 375. 744 CIVIL KEMEDIES. the conversion of chattels, a justification by the defendant as sheriff, under an attachment, judgment, execution, and levy against a third person, charging that the goods were the property of such judgment debtor, and had been fraudulently assigned and transferred by him to the plaintiff, so that the latter 's title was void, cannot be proved under an answer of denials, but must be pleaded as new matter.^ There are cases which go to the extent of holding that, under the general denial, — which traverses the indispensable averment of a sufficient property in the plaintiff, — the defendant cannot show property in himself: ^ but this ruling seems opposed to the weight of authority ; and it is certainly contrary to the plainest principles of pleading, for such facts, when proved, merely contradict the plaintiff's averment of his own title. ^ § 705. In the action for breaking and entering the plaintiff's premises (trespass qu. cl.fr.'), with the complaint in the proper form, and without any unnecessary averments, the general denial does not raise any issue as to the title to the land, and no evidence attacking such title can be received except under a separate defence ; * nor can any defence of justification be proved unless specially pleaded.^ Where two or more unite as plaintiffs in an action for the taking and carrying away their goods, a de- fence that " the plaintiffs are not joint owners of the goods and chattels mentioned in the complaint" is new matter.^ To a complaint for an assault and battery committed by a railroad con- ductor in forcibly ejecting the plaintiff from the cars, the general denial was pleaded : under this issue, the defendant was not per- mitted to show the regulations of the company, that they were reasonable, and that he was complying with them in doing the act complained of.^ The defence of recaption, or its equivalent, 1 Jacobs V. Eemsen, 12 Abb. Pr. 390 ; 43 ; Laugton v. Hagerty, 35 Wis. 150, Graham u. Harrower, 18 How. Pr. 144. 161. In tlie latter case, T. R. Strong J. seems ^ Dyson v. Ream, 9 Iowa, 51. to concede, that, under a denial of the al- ' See supra, §§ 677, 678. But the de- legation of property in the plaintiff, the fence of title in a third person is new defendant may prove general property in matter. Smith v. Hall, 67 N. Y. 48. himself, but not a justification under judi- * Squires v. Seward, 16 How. Pr. 478; cial process. Frisbee v. Langworthy, 11 Rathbone v. McConnell, 20 Barb. 311 ; Wis. 375, an action to recover posses- Althouse v. Rice, 4 E. D. Smith, 347. sion, but governed by the same rule as ^ Johnson v. Cuddington, 35 Ind. 43. to pleading a justification. Isley v. Hu- " Walrod v. Bennett, 6 Barb. 144. ber, 45 Ind. 421 ; Boaz v. Tate, 43 Ind. ' Pier v. Finch, 29 Barb. 170. In an 60, 71, 72 ; Johnson v. Cuddington, 35 Ind. action for false arrest and imprisonment, EXAMPLES OF NEW JVUTTER. 745 in an action against a sheriff for an escape, is new matter. An answer setting up this defence having been pleaded, the defend- ant, at the trial, offered to prove, not the return or the retaking of the prisoner, but that he would have voluntarily returned, and was intending to do so, had he not been prevented from ac- complishing his purpose by the fraud of the plaintiff. This defence was held inadmissible under a general denial, or under the special answer of recaption, because it was new matter, and the allegations and proofs must agree.^ The defence of recoup- ment of damages is in all eases new matter, and must therefore be pleaded, although it is often a partial defence analogous to those in mitigation.^ § 706. Actions concerning Lands. In the legal action to recover possession of land, the complaint or petition being in the common form, alleging in general terms that the plaintiff is seised in fee of the premises, and the wrongful taking and withholding posses- sion thereof by the defendant, and the answer consisting merely of denials general or specific, the defendant cannot, it has been held, prove a prior equitable title in himself derived from the plain- tiff or his grantor, although a legal title in himself may be proved, as this would directly contradict the averment in the complaint that the plaintiff was owner of the premises.^ An action was proof of the plaintiff's bad character in and prove to maintain his action is the respect to the offence for wliich he was recovery of tlie judgment, tlie issue and arrested cannot be proved under the gen- delivery of execution to the sheriff, the eral denial. Scheer v. Keown, 34 Wis. capture of the debtor on the execution. 349. The following defences are further and the escape from custody before suit instances of new matter, — in an action brought against the sheriff therefor. We against a sheriff for false return, &c., de- have seen that the sheriff may defend fence that the property was exempt, Kis- the action by proving a recaption of the kadden v. Jones, 63 Mo. 190; in action debtor before suit brought, or facts legally against husband and wife for wife's tort, excusing him from making such recap- her defence of compulsion by her bus- tion. Proof of such facts do not contro- band, Clark v. Boyer, 32 Ohio St. 299 ; vert any allegations of the complaint. It in action for injuries caused by a hole is, therefore, new matter, constituting a wrongfully made in a sidewalk, defence defence to the action, and, under the code, of license from the city government, is inadmissible unless set up in the an- Clifford V. Dam, 81 N. Y. 52. swer." 1 Richtmeyer iJ.Remsen, 38N. Y. 206, 2 Crane v. Hardman, 4 E. D. Smith, 208, per Grover J. -. " The question is, 448. whether these grounds of defence must ■* Stewart v. Hoag, 12 Ohio St. 623 ; be set up in the answer; that is, whether Lombard v. Cowham, 34 Wis. 486, 491 ; the defence offered consists of new mat- Hartley u. Brown, 46 Cal. 201. See supra, ter, or whether it merely disproves any § 679, as to what defences maybe proved of the material allegations of the com- under the general denial in this action. A plaint. AH that the plaintiff must allege title accruing to the defendant since the 746 CIVIL KEMEDIES. brought by a wife against her husband to establish her title to certain lands. The complaint alleged facts showing that she was the equitable owner of the lands, which had been purchased by the husband with her money under an understanding that the conveyance was to be made directly to her, but which he had, in fraud of her rights, procured to be made to himself : it prayed that she might be declared the owner, and that a deed to her from her husband might be ordered. W., a judgment creditor of the husband, was permitted to intervene, and was made a party defendant. He simply pleaded a general denial. This answer, it was held, put in issue only the averments of the complaint, and did not permit the defendant W. to set up and prove his charac- ter or rights as a judgment creditor of the husband. In short, he could obtain no advantage from his intervention, because no allu- sion was made in the complaint to his position and claims as a creditor: that subject-matter was entirely outside of its aver- ments.^ A widow sued to recover her dower in lands which the husband had conveyed to the defendant during the marriage without any release from herself, and stated in her complaint the facts necessary to make out the cause of action. The answer set up as a defence that the husband left a last will, in which he de- vised and bequeathed to the plaintiff certain property to be re- ceived by her in lieu of dower ; that she had elected to take the gift under the will, and had thus barred her right of dower. This defence was held to be new matter, and to have been admitted by the plaintiff's neglect to reply and controvert its statements.^ In an action brought by the owners of lots abutting upon a certain alley in a city, to restrain the corporation from improving such commencement of the action must be the lease was obtained by fraud or mis- pleaded by a supplemental answer. Roper take); Higler v. Eddy, 53 id. 597 (ten- u, McFadden, 48 Cal. 346,348; McLane der since suit brought). V. Bovee, 35 Wis. 27, 34. The rule as to l Watkins v. Jones, 28 Ind. 12. defences in ejectment is further illustrated 2 McCarty u. Roberts, 8 Ind. 150. A by Powers v. Armstrong, 35 Ohio St. reply to all new matter was necessary. 357;Emilyw. Harding, 53 Ind. 102; Marks In a creditor's suit to reach a debt due t;. Sayward, 50 Cal. 57 ; Manly u. How- to the judgment debtor as the vendor of litt, 55 id. 94, and see the recent cases land from the vendee thereof, both being added under § 682 ; as to other special defendants, the latter's answer, that the actions concerning laws, see Morenhaut purchase-price had been fully paid to the V. Wilson, 52 Cal. 263 (abandonment of a vendor, was held to be new matter, and to mining claim) ; McCreary i'. Marston, 56 require a reply, in Ohio, Edwards v. Ed- id. 403 (in action of unlawful detainer wards, 24 Ohio St. 402, 411^ by a lessor, defence that the execution of EXAMPLES OF NEW MATTER. 747 alley, on the ground that it was a private passage belonging to the plaintiffs, the complaint contained the averments of property in the plaintiffs necessary to show a right of action. The an- swer stated facts showing that the original owner of the land the grantor or source of title of the plaintiffs — had dedicated this alley to public use, and that it had thus been made a high- way. These facts, it was held, could not be proved under a general denial : they were new matter, and must be specially pleaded.! The defence of long-continued adverse user or pre- scription in actions affecting the title or possession of lands, or involving the existence of easements, is, in general, new matter ; for, in the usual form of such actions, the defence will be in the nature of a justification of the acts complained of. Thus, for ex- ample, in an action brought to remove a dam maintained by the defendant, and to restrain his diversion of water from the stream, and for damages, the defence of a long adverse user or prescrip- tion, by which his right to the dam and to the water had become perfect, is new matter, and should be pleaded.^ § 707. Actions upon Contract. The defence of usury is clearly new matter ; ^ and the facts showing the usurious agreement and the entire transaction must be stated with fulness and circum- stantiality.* The general denial in an action to recover damages for the breach of a promise to marry does not admit the defence of the improper habits and bad character of the plaintiff; as, that she habitually used intoxicating liquors to excess, and was in the habit of becoming intoxicated. Such facts, if they amount to a defence in bar, are new matter, and must be alleged in the answer.^ The owner of a building incumbered by a mortgage procured it to be insured against fire, the policy being made pay- able to the mortgagee. In an action on this policy brought by 1 City of Evansville v. Evans, 37 Ind. 2 Mathews v. Ferrea, 45 Cal. 51. 229, 236. This decision seems to be op- 3 Catlin v. Gunter, 1 Duer, 253, 265; posed to the well-settled doctrines con- Fay v. Grimsteed, 10 Barb. 321. coming the oflSce and effect of the general ^ Manning v. Tyler, 21 N. Y. 567, denial. The complaint alleged a property 568. in the plaintiffs, which was the very gist * Button u. McCauley, 38 Barb. 413. of their action ; and a general denial Compare Tompkins v. Wadley, 3 N. Y. would permit the defendant to contradict S. C. 424, 430, which holds that in such such allegation. Proving a dedication to an action an act of unchastity committed the public is nothing more nor less than by the plaintiff can be proved in mitiga- showing title in the defendant, the city ; tion under the general denial, and this directly controverts the material statements of the complaint. 748 CIVIL REMEDIES. the payee therein, the defence that the mortgage had been fore- closed, the land sold, and the mortgage debt partly discharged out of the proceeds, was held inadmissible under an answer of mere denials. These facts constituted a partial defence in the nature of payment, and were clearly new matter.^ In a suit against a surety, the defence of his discharge from liability by reason of an extension of the time of payment granted to the principal debtor, in pursuance of a private agreement made with the creditor, is new matter, and cannot be proved unless pleaded as such; 2 and also his discharge by reason of any other subse- quent agreement between the principals to the contract.^ § 708. The rule is well settled in strict accordance with the true theory of pleading under the codes, that all defences based upon the asserted illegality of the contract in suit, which admit the fact of a transaction between the parties purporting to be an agreement, and apparently binding, but which insist that by reason of some violation of the law the same is illegal and void, are new matter, and must be set up in the answer in order to be provable. A few examples will illustrate this rule.* In an action against a city .upon a contract made with the plaintiff by the street commissioners, the answer alleged that these officers did not proceed according to the statute defining their powers, that they did not publish the proper notice of the letting the contract prescribed by the city charter, and that the contract itself was therefore invalid. To this answer there was no 1 Grosvenor B. Atlantix! Fire Ins. Co., and must be pleaded in all actions, whether 1 Bosw. 469. brought upon contract or to enforce al- 2 Newell V. Salmons, 22 Barb. 647. leged rights of property in the plaintiff. ' Horton v. Euhling, 3 Nev. 498. Jenkins v. Long, 19 Ind. 28; Farmer v. In an action upon an account stated, the Oalvert, 44 Ind. 209, 212 ; Daly v. Proetz, defence of mistake or error in any of its 20 Minn. 411, 417. As to defences of items is new matter, and cannot be proved fraud and illegality, see Dalrymple v. under a general denial, Warner K.Myrick, Hillenbrand, 62, N. Y. 5; 2 Hun, 488; 16 Minn. 91 ; and the defence that a writ- Leavitt v. Catler, 37 Wis. 46 ; Casad v. ten instrument sued on has been altered, Holdridge, 50 Ind. 529 ; for other special Boomer v. Koon, 6 N. Y. S. C. 645; and defences, see Dalrymple v. Hunt, 5 Hun, the facts which authorize the application 111 (a former recovery) ; Riggs v. Am. of the "scaling laws " in North Carolina Tract Soc, 84 N. Y. 330, 337, 338 (action to contracts of indebtedness. Bank of to set aside a contract made by an insane Charlotte v. Britton, 66 N. C. 365. The person ; defence that it was made in good citation of Boomer v. Koon, above, is an faith and for his benefit) ; Goodwin v. error. The decision of the court was to Mass. Mut. Life Ins. Co., 73 N. Y. 480, exactly the opposite effect, 6 Hun, 645. 496 (in action on a policy of life insur- See ante, addition to note under § 676. ance) ; Hegler v. Eddy, 53 Cal. 597 ( tender * The defence of fraud is new matter, after the suit was begun). EXAMPLES OF NEW MATTER. 749 reply ; and as the code of Minnesota required a reply to all new- matter, the defendant claimed that these averments were by reason of the omission admitted to be true. The court so held, pro- nouncing the defence new matter which could not be proved under a general denial. ^ The defence that the contract in suit was entered into on Sunday, and is for that reason illegal and void under the statute, is new matter ;2 and that the demand was for liquors sold by an innkeeper on credit contrary to statute ; '■^ and that the plaintiff carried on business by himself under a firm name, there being no partnership, in violation of a statute ; * and that the contract was in restraint of trade.^ § 709. In actions upon instruments which prima facie import a consideration, — that is, upon notes, bills, and other negotiable paper, and writings under seal, — the defence of a want of con- sideration is new matter ; ® but where there is no such presumption in favor of the contract, the same defence may be proved under the general denial.'^ Where suit is brought for goods sold and delivered, or bargained and sold, the defence of a warranty, on the sale, and a breach thereof, is clearly new matter.^ If an action is brought for the possession or for the value of securities claimed to belong to the plaintiff, and alleged to have been in some manner wrongfully transferred to and detained by tlie defendant, the defence that the latter purchased the same in good faith, and is a bona fide holder thereof, is, in general, new matter.® It is plain, however, that the character of this defence will largely depend upon the form of the complaint. The latter might natu- rally contain averments denying the good faith of the defendant's possession, or stating a want of consideration in the transfer to him, so that a mere denial would raise an issue, and admit evi- dence of the defence. A judgment having been confessed in which the statement of indebtedness was so informal and in- complete that the whole was prima facie void as against other 1 Nash V. St. Paul, 11 Minn. 174, 178 ; Bingham v. Kimhall, 17 Ind. 896 ; Du- and Bee Finley v. Quirk, 9 Minn. 194, 200, bois v. Hermance, 56 N. Y. 673, 674 ; 203. Beeson v. Howard, 44 Ind. 413, 415. 2 Knley v. Quirk, 9 Minn. 194, 200, ^ See cases cited supra, § 676. In tlie 203. latter class of actions, a consideration 2 Denten v. Logan, 3 Mete. (Ky.) 434. must be averred in the complaint. * O'TooIe V. Garvin, 3 N. Y. S. C. 8 Fetherly v. Burke, 54 N. Y. 646. 118. « "Weaver v. Barden, 49 N. Y. 286, 6 Frost V. More, 40 Cal. 347. 297, per Grover J. 6 Frybarger v. Cokefair, 17 Ind. 404; 750 CIVIL KEMEDIES. creditors, an action was brought to set aside the judgment so confessed. The answer in this action set out in full all the facts of the original indebtedness which tended to show that an actual debt existed, and that the confession was in good faith and valid. This answer the Supreme Court of California held to be new matter : it was in avoidance, and not in denial of the case made by the complaint.^ § 710. The distinction between new matter and denials was clearly stated in a recent decision by the Supreme Court of Mis- souri. In an action upon an attachment bond, the petition set out the bond, and alleged as a breach that the plaintiff in the attach- ment suit had failed to prosecute the same, and that the attach- ment had been abated by a judgment of the court in that proceeding. The answer admitted the bond, denied the breach, and asserted that the original suit was still pending by a motion in arrest of judgment and for a new trial. No reply having been pleaded, these averments of the answer were held at the trial to have been admitted. This ruling was reversed on error, and the answer was held to be merely a denial. ^ § 711. Defences in Abatement, and particularly those relating to the Joinder and Capacity of the Parties. The nonjoinder of neces- sary parties cannot be proved under the general denial ; it is new matter, and must be pleaded : * nor can the misjoinder of plaintiffs be relied upon under a denial ; the question must be raised by a demurrer or by a special answer.* The defence that the plaintiff is not the real party in interest is new matter. A general averment, however, to that effect, is not enough : the facts must be stated which constitute the defence, and which show that he is not the 1 Pondi). Davenport, 45 Cal. 225. The ter, and need not be replied to. More- correctness of this decision may be doubt- over, an answer setting up new matter ed. Tlie answer is rather an argumen- by way of defence should confess and tative denial. The complaint in effect avoid the plaintiff's cause of action, charged fraud ; and, if a general denial Bauer v. Wagner, 39 Mo. S85 ; Northrup had been pleaded, the same facts would v. Miss. Valley Ins. Co., 47 Mo. 435. The have been evidence in its support to dis- allegation in question is merely in denial prove the fraud, of facts which the plaintiff must prove to 2 State V. Williams, 48 Mo. 210, 212 : make out his prima facie cause of action." " The general rule is, that any fact 3 Abbe v. Clarke, 31 Barb. 238. which avoids the action, and which the * Gillam v. Sigman, 29 Cal. 6.S7. See plaintiff is not bound to prove in the first also Dutcher v. Butcher, 39 Wis. 651, instance in support of it, is new matter ; and the other additional cases cited ante, but a fact which merely negatives the under § 698. averments of the petition is not new mat- EXAMPLES OF NEW MATTER. 751 real party in interest.^ The objection that the plaintiff has not the legal capacity to sue, unless it appears on the face of the complaint or petition so that it can be raised by demurrer, is new matter. Being in the nature of a dilatory defence, like that of a defect of parties, the facts which constitute it must be stated with certainty: a mere general averment would raise no issue.^ In application of this rule, the objection that the plaintiff or the defendant is a married woman, when relied on as a defence, can- not be proved under a general denial, but must be pleaded as new matter ; ^ and in an action by an executor or administrator, the general denial does not put in issue the plaintiff's title to sue.* The defence that the action was commenced before the cause of action had accrued cannot, it has been held, be proved under a general denial, but must be set up in the answer specially. Thus in an action for work and labor on an open account, where the answer was a general denial, the defence that the account was not due at the time the action was commenced according to the terms of a special contract was excluded on the ground that it should have been pleaded.^ The defence that another action is pending for the same cause must be specially pleaded, unless it is raised by demurrer.® § 712. Miscellaneous Defences. The defence of license is new matter, and cannot be proved unless pleaded.'^ According to the decided weight of authority, an estoppel in pais cannot be proved under a general denial, but is new matter.^ An accord and satis- 1 Jackson v. Whedon, 1 E. T). Smith, 341 ; Wagner v. Ewing, 44 Ind. 441 ; 141 ; Savage v. Corn Exeh. F. Ins. Co., 4 Kennard v. Sax, 3 Oreg. 263, 265. Bosw. 1; Raymond v. Prichard, 24 Ind. * White v. Moses, 11 Cal. 69, 318 ; Garrison <-•. Clark, 11 Ind. 369 ; ^ Hagan v. Burch, 8 Iowa, 309 ; Smith Swift V. Ellsworth, 10 Ind. 205 ; Lamson v. Holmes, 19 N. Y. 271. V. Falls, 6 Ind. 309. ^ Walsworth v. Johnson, 41 Cal. 61. 2 Cal. Steam Nav. Co. v. Wright, 8 ' Beaty v. Swartliout, 32 Barb. 29."!, Cal, 585; Wade v. State, 37 Irfd. 180, 29l ; Haight i'. Badgeley, 15 Barb. 499; 182 ; Wright v. Wright, 54 N. Y. 437, Snowden v. Wilas, 19 Ind. 10 ; Gilbert v. 441 ; 59 Barb. 505 ; Burnside v. Matthews, Sage, 5 Lans. 287 ; Alford v. Barnum, 45 54 N. Y. 78, 82, "must be pleaded spe- Cal. 482, 485; Chase v. Long, 44 Ind. cially and with certainty to a particular 427, 428. intent; Barclay v. Quicksilver Mining ^ Wood v. Ostram, 29 Ind. 177,186; Co., 6 Lans. 25, 30 ; Phoenix Bank o. Davis v. Davis, 26 Cal. 23 ; Etcheborne Donnell, 40 N. Y. 410. i'- Auzerais, 45 Cal. 121 ; Clark v. Huber, 3 Dillaye v. Parks, 31 Barb. 132; 26 Cal. 593, 597; but see Caldwell v. Johnson v. Miller, 47 Ind. 376, 377 ; Lan- Auger, 4 Minn. 217. An estoppel by jiidg- ders V. Douglas, 46 Ind. 522 ; McDaniel ment must be pleaded if there is or has V. Carver, 40 Ind. 250; Elson v. O'Dowd, been any opportunity to do so. Clink v. 40 Ind. 300; Van Metre v. Wolf, 27 Iowa, Thurston, 47 Cal. 21, 29 ; per contra, La- 752 CIVIL KEMEDIES. faction is also hew matter ; ^ and a discharge in bankruptcy or insolvency ; ^ and a defence based upon a statutory provision pro- hibiting banks from paying out notes not received by them at par ; ^ and a defence founded upon the plaintiff 's failure to per- form a contract collateral to the demand set up in the complaint, and upon which the liability of the defendant depended.* § 713. Statute of Limitations. Different rules prevail in the different States in respect to pleading the Statute of Limitations. In some, by reason of an express provision of their codes, the defence must always be specially set up in the answer, and can liever be raised by demurrer, even though the averments of the complaint should show that the cause of action is barred. In others it may always be taken advantage of by demurrer when- ever the complaint or petition discloses a cause of action which appears to be barred by the statute. The courts of still other States occupy a middle ground between these extremes. If the provisions of the statute relied on are not absolute, but contain exceptions or provisos within which the case could possibly fall, and which might, therefore, prevent the bar of the statute from applying to the cause of action, the demurrer is never proper, because, although not so alleged, the case might come within the exception or proviso : the answer is then the only mode of pre- senting the defence. But if the particular provisions of the statute are absolute, and contain no such exceptions or provisos within which the case could possibly fall, a demurrer may be interposed when the objection appears upon the face of the plain- tiff 's pleading ; but if it does not so appear, the defence must be set up by answer. § 714. In New York the rule is settled, and applied to all ac- tions whether legal or equitable, that the effect of the Statute of Limitations as a defence can, only be made available by an an- swer ; that a demurrer can under no circumstances raise the issue ; and finally, that the defence is new matter." In Indiana, rum V. Wilner, 35 Iowa, 244, 247. See ^ Cornell v. Dakin, 38 N. Y. 253, 256. also, as to defence of estoppel, Hanson v. s Codd v. Rathbone, 19 N. Y. 87. Cheatovich, 13 Ner. 395 ; Pugh v. Otten- * Blethen v. Blake, 44 Cal. 117 ; and heimer, 6 Oreg. 231 ; Eemillard v. Pres- the defence of irregularity on the part of cott, 8 id. 37 ; the statute of frauds Sher- the, arbitrators in an action upon an wood V. Saxton, 63 Mo. 78 ; tender, award. Day v. Hammond, 57 N. Y. 479, Hegler v. Eddy, 63 Cal. 597. 484. 1 Colea V. Soulsby, 21 Cal. 47, 50. 5 gands v. St. John, 36 Barb. 628 ; STATUTE OF LIMITATIONS. 753 if the provision of the statute invoked contains no exceptions or provisos, and it appears on the face of the complaint that the cause of action is barred, the defendant can demur ; but when there are exceptions or provisos in the operative clause of the statute relied upon, the defence can only be set up by a special answer, and cannot be made available under a general denial.^ Even in those States where the statute may be taken advantage of by demurrer, as well as in all the others, it is, when set up by answer, new matter, and can never be proved under a denial, either general or special.^ When the Statute of Limitations of another State or county is relied upon as a defence, the answer must contain all the averments of fact necessarjr to bring the case within the provisions of such foreign enactment : nothing will be presumed in favor of the pleader.^ Baldwin v. Martin, 14 Abb. Pr. N. s. 9. See also Dezengremel v. Dezengremel, 24 Hun, 457 ; Riley v. Corwin, 17 Id. 597 ; Long tj. Bank of Yanceyville, 81 N. C. 41 ; Hyde v. Lamberson, 1 Idaho, 5-36. 1 Perkins v. Rogers, 35 Ind. 124, 141, and cases cited ; Hanna v. Jeffersonville, &c. R. U., 32 Ind. 113; but see Matlock r. Todd, 25 Ind. 128, which seems to hold that a demurrer is never proper in legal actions, but may be used in equitable ac- tions, according to the former practice in equity. See McCoUister v. Willey, 52 Ind. 382. - JleKinney v, McKinney, 8 Ohio St. 423 ; Backus v. Clark, 1 Kan. 303 ; Howell u. Howell, 15 Wis. 55, 59. This last case holds that the defendant may demur, although the Wisconsin code enacts that " the objection that the action was not commenced within the time limited can only be taken by answer." R. S. ch. 138, § 1. The court said tliat " answer '' must be taken in its widest sense of any defensive pleading including a demurrer. But see the later case of Tarbox v. Su- pervisors, 34 Wis. 558, which expressly holds that the Statute of Limitations can only be taken advantage of by answer in tlie State of Wisconsin. Hartson v. Har- din, 40 Cal. 264. The rule is settled in many States, that when it affirmatively appears on the face of the complaint or petition that the cause of action is barred by the statute, and only then, the defend- ant may demur ; otherwise he must plead the defence specially, since it is never admissible under the general denial, ex- cept in the action to recover possession of land in certain States by virtue of ex- press provisions of their codes. It is so held in Ohio, Huston v. Craighead, 23 Ohio St. 198, 209, 210; in Minnesota, Davenport v. Short, 17 Minn. 24, the court saying that they would not extend the rule laid down in Kennedy v. Wil- liams, 11 Minn. 314; McArdle v. MoAr- dle, 12 Minn. 98; Eastman v. St. An- thony's Falls W. P. Co., 12 Minn. 137 ; Hoyt V. McNeil, 13 Minn. 390 ; in Kan- sas, Parker v. Berrj', 12 Kan. 351 ; in California, Brennan u. Ford, 46 Cal. 7, 12 ; in Iowa, Robinson v. Allen, 37 Iowa, 27, 29 ; Shearer v. Mills, 35 Iowa, 499 ; Moulton f. Walsh, .SO Iowa, 361 ; Springer V. Clay Co, 35 Iowa, 241; in Nebraska, Mills V. Rice, 3 Neb. 76, 87 ; in Missouri the defence can be proved under a general denial, when the action is for the recov- ery of land, Bledsoe v. Simms, 5.'5 Mo. 305, 307. See also Combs r. Watson, 32 Ohio St. 228; Dutcher v. Butcher, 89 Wis. 651; Orton v. Noonan, 25 Id. 672 ; Heath v. Heath, 31 Id. 223 ; Barden V. Supervisors, 83 Id. 45; Tarbox v. Supervisors, 34 Id. 558. 3 Gillett V. Hill, 82 Iowa, 220. 48 754 CIVIL KEMEDIES. SECTION FIFTH. THE UNION OF DEFENCES IN THE SAME ANSWER. § 715. All the codes, with some slight difference in the lan- guage, but with none in the meaning and effect of the clause, provide that the defendant may set up in his answer as many defences and counter-claims and set-offs as he may have, whether they be such as have heretofore been denominated legal or equi- table, or both. When defences are thus united, they must each be separately stated, and refer to the causes of action they are intended to answer. I shall, in the present section, collect the practical rules which have been adopted .by the courts in con- struing this provision, touching the mode of pleading different defences in one answer. I. How the Separate Defences should he stated. § 716. The distinction between partial and full defences has already been pointed out. Assuming that the defences are not intended to be partial, each must of itself be a complete answer to the whole cause of action against which it is directed, as per- fectly so as though it were pleaded alone. It is not necessary that each defence should answer the entire complaint when that contains two or more distinct causes of action, because these causes of action may depend upon separate circumstances, and demand separate answers. If a defence, however, is addressed to the whole complaint, as such, it must completely controvert the whole. The rule, as stated in its general form, is, that each defence must be sufficient in itself, in its material allegations or its denials, to constitute an answer to the cause or causes of action against which it is directed, and thus to defeat a recovery thereon. This propo- sition refers to the substance of the defence. In reference to the form and manner of stating this substance, it must, either by actual statement in full, or by a proper reference to and adoption of matter in another defence found in the same answer, contain averments of all the material facts or denials which together make up the defence. Each must in its composition be complete, suffi- cient, and full ; it must stand upon its own allegations : it cannot UNION OF DEFENCES. 755 be aided, nor its imperfect and partial statements helped out, by matter found in another defence, unless such matter is expressly referred to, and in an express manner adopted or borrowed from that other, and made a part of itself. The reference, however, to the former defence, and the adoption of its matter, if permitted at all, must be express ; for otherwise the allegations of one can- not be treated as incorporated in or helping out those of another. This rule is well settled by the authorities, although often disre- garded in practice.! If the defence is profet^sedly a partial one, the foregoing rule applies only so far as respects the manner and form of stating the facts. In a partial as well as in a full defence, the averments cannot be aided by matter found in another de- fence, unless the same is expressly referred to and adopted. It should be observed also, that in the case of answers containing several defences, as well as of complaints containing several causes of action, certain allegations may be introductory, not forming a portion of either defence in particular, but belonging alike to all, so that they should be once made at the commencement of the answer before any one of the separate defences is stated. § 717. In this connection I shall offer a few suggestions in reference to the proper mode of pleading specific denials ; a mode which is perhaps not in terms prescribed by the codes, but which is, I think, plainly included within the spirit of the statutory re- quirements, and which, if universally adopted, would do much to perfect the pi'actical workings of the theory which lies at the foundation of the reformed procedure. The advocates of the ^ Baldwin v. U. S. Tel. Co., 54 Barb, advantage of by a motion to correct; if 505, 517 : " By the well-settled rules of such motion is not made, the objection is pleading, each answer [defence] must of waived. Truitt v. Baird, 12 Kans. 420, itself be a complete answer to the whole 423. Each defence must be complete in complaint, as perfectly so as if it stood itself, and cannot be aided by reference alone. Unless it, in terms, adopts or to the allegations in another. Potter ?i. refers to the matter contained in some Earnest, 45 Ind. 416 ; Mason v. Weston, other answer, it must be tested as a 29 Ind. 501 ; Day v. Vallette, 25 Ind. 42 ; pleading alone by the matter itself con- Leabo v. Detrick, 18 Ind. 414; National tains." Nat. Bank of Michigan u. Green, Bank w. Green, 33 Iowa, 140; Knarr v. 33 Iowa, 140, 144: "When the answer Conaway, 42 Ind. 260, 204. See also, as contains separate defences, each defence to completeness of each defence, Frazer must be sufficient in itself: it cannot be v. Frazer, 70 Ind. 411; Lash v. Rendell, aided by matter in another defence. If 72 Ind. 475 ; and additional cases cited, not tlius complete and sufficient, it is de- ante, under § 608; as to effect of a de- murrable." Defences should be separately fence pleaded to one of two separate stated and numbered : but a failure to causes of action, see Musser v. Crum, 48 comply with this rule can only be taken Iowa, 52. 756 CIVIL KEMEMES. common-law pleading have never ceased to urge that it served to bring out and present to the jury for their decision a single issue, — the affirmation and negation of a single fact, the verdict upon which determined the entire controversy. This theory is certainly very beautiful. We know, however, that in practice the results were far different. Instead of this single issue, in the actions of assumpsit, of debt on simple contract, and of trover, the general issue had come to be almost the only answer used, and under it nearly every possible defence was admissible. This evil produced the reform of 1834 in England. That reform consisted in limiting the effect of the general issue in respect of the de- fences which could be admitted under it. All matters in confes- sion and avoidance were required to be specially pleaded ; and many of the matters stated in the declaration, which went to make up the cause of action, were required to be specifically denied by a separate traverse to each. To illustrate : In the action of assumpsit, if the contract sued on was express, the general issue of non-assumpsit only denied the making of the contract, the promise ; if it was implied, the same general issue only denied the existence of the facts from which the promise would by law be inferred. If the defendant desired to deny the alleged breach, he was obliged to do so by a separate specific denial, or " special traverse " as it was called. In this manner the issues were made and kept single ; at least, if 'there were several issues formed by the various traverses and pleas com- prised in the same answer, each was single, — the affirmation and negation of one material, issuable fact. Each " special trav- erse " was a distinct plea by itself, and denied some avei'ment in the declaration which was necessary to the maintenance of the action, so that, if the defendant was successful on any one trav- erse, he defeated the entire recovery in respect to that cause of action. This great reform undoubtedly restored the common-law system of pleading somewhat to its original theorj'. § 718. While a similar condition of affairs was existing in this country, the Reformed American Procedure was introduced with' its radical changes, its complete departui'e from the ancient no- tions. Enemies of the system, both on the bench and at the bar, have constantly reiterated the objection that it made no provi- sion for the development through the means of pleading, and for the presentation to juries, of single and separate issues of fact. UNION OF DEFENCES. 757 No objection could be more grossly unfounded. The common- law methods, as wrought out by the courts, had certainly and notoriously failed to produce that desired result ; and these ob- jectors, when they assailed the code and compared it with the former system, obstinately shut their eyes to what that system actually did in its every-day working, and only repeated what the theorists asserted that it ought to do. If the spirit and design of the code, as clearly shown through all of its important clauses and sections, were accepted and carried out by the courts and the profession, and if its plain requirements were obeyed to the full extent of their meaning, the very same beneficial results attained in England by the legislation and judicial action of 1834 would be accomplished wherever the new procedure has been estab- lished. § 719. It seems to me to be the evident purpose of the codes that all issues of fact should be separated and made single ; and that, if such a practice has not yet been generally attained, it is because the rules prescribed by the statute have been violated or ignored ; in short, the fault cannot be charged to the system itself. The codes expressly prescribe that each defence must be separate and distinct, and must be so pleaded. In respect to de- fences of new matter, this requirement is as precise and exacting as any rule of the common law.^ It is the duty of courts to insist upon a compliance with this statutory regulation, if juries are to be at all aided in their labors by the issues as presented upon the records. To combine a defence of accord and satisfac- tion, for example, with one of payment, is as marked a violation of the new procedure as of the common-law theory. Is there any different principle or rule in reference to defences of denial ? I answer, No. No such difference can be pointed out in the stat- ute itself ; and this fact alone is sufiicient to show the correctness of the answer. But the proof of its correctness is positive. The code permits a general denial which controverts all tlie mateiial allegations of the complaint or petition, and thus presents a broad issue, but still an issue which is not incumbered with any matter 1 See Eose v. Hurley, 39 Ind. 77, 81. been broken, and of fraudulent represen- In an action upon a note given for tlie tations in respect to the article made by price of an article sold by the plaintiff the seller. This defence was overruled to the defendant, one defence of the an- on demurrer. The opinion of Downey Bwer contained mingled allegations of a J. is valuable and instructive, warranty given on the sale, which had 758 CIVIL KEMEDIES. by way of confession and avoidance. The code also permits specific denials ; that is, a separate denial of some material allega- tion of the complaint or petition. These speeifie denials are iden- tioal in design and effect with the special traverses provided for hy the English rules of 1834. Each specific denial should be an entire defence by itself, and should be so pleaded, because it should be the denial of • some single, material, issuable matter averred in the complaint necessary to the existence of the cause of action, so that, if sustained, it would entirely defeat a recovery on that cause of action. As the code requires each defence to be separately stated, it follows that a specific denial should always constitute by itself a distinct and complete defence, and should be pleaded in such form, as much so as any defence of new matter. If the true design and intent of the code in this respect were fully carried out, two or more specific denials could never be combined in one and the same defence. The answer might contain several such denials, but each would be stated as one entire, independent defence, distinct from all the others, and thus presenting one issue of fact, arising from the averment of the complaint or petition and its traverse. § 720. If the mode of pleading thus described should be gen- erally adopted, — and it seems to be in strict accordance with both the design and the requirements of the codes, — the im- mediate result would be the forming of single issues on the record for the consideration of the jury, depending upon one affirmation and one negation, far more perfectly in the actual practice than was accomplished while the ancient procedure remained in exist- ence. The confused method of pleading which has undoubtedly become too common, the failure to distinguish and extract the material issues from the overlying mass of useless details which frequently incumbers the record, is, therefore, no fault of the codes ; it is rather in direct opposition to their intent and their express enactments ; and it has done far more than all other causes to diminish their usefulness, and to hinder the complete reform which they were designed to consummate. To whatever agency this partial failure is to be attributed, one thing is certain, — that the courts have ample power to remedy it, and to accom- plish all the beneficial objects of the new procedure which were looked for by its authors. UNION OF DEFENCES. 759 II. What Kinds of Defences may he joined in one Answer ; those in Abatement, and those in Bar. § 721. It is now settled, in direct opposition to the common- law rule, that defences which seek only to abate the particular action in which they are pleaded may be united with those which seek to bar all recovery upon the cause of action. Being joined in the same answer, they are to be tried and determined together at the one trial. The oul}' possible difficulty in the practical operation of this rule arises from the different effects of a judg- ment in favor of the defendant, rendered upon one or the other of these classes of defences. As such a decision upon the former class does not destroy the plaintiff's right of action, nor prevent him from properly commencing and maintaining another suit for the same cause, while a similar decision upon the latter class does produce that final effect upon the right, and as by a general ver- dict given for the defendant upon all the issues contained in the record, and a judgment entered thereon, it might be difficult, and perhaps impossible, to determine which of these results should follow from the judgment thus pronounced, it is plain that, at the trial of an action in which the answer unites the two kinds of defence, the judge should carefully distinguish the issues arising from them, and should submit them separately to the jury, and direct a separate and special verdict upon each. By pursuing this course, the record would show exactly the nature of the decision, and of the judgment entered thereon. This mode of procedure has been sanctioned by the highest courts. ^ ^ Sweet V. Tuttle, 14 N. Y. 465, 468; suit from this construction of the code is, Gardner v. Clark, 21 N. Y. 399 ; Mayliew that when an answer embraces both a V. Robinson, 10 How. Pr. 162; Bridge v. defence in abatement and one in bar, if Payson, 5 Sandf. 210 ; Freeman v. Car- the jury find a general verdict, it will be penter, 17 Wis. 126; Thompson V. Green- impossible to determine whether the wood, 28 Ind. 327 ; Bond w. Wagner, 28 judgment rendered upon the verdict Ind. 462. But see, per contra, Hopwood should operate as a bar to another suit r. Patterson, 2 Oreg. 49; Fordyce w. Hath- for the same cause of action or not. It orn, 57 Mo. 120; Cannon v. McManus, would, however, be the duty of the judge 17 Mo. 345 ; Rippstein v. St. Louis, &c. at the circuit, in such a case, to distin- Ins. Co., 57 Mo. 86, which retain the guish between the several defences in common-law rule, and hold that a defence submitting the cause to the jury, and to in abatement is waived by pleading mat- require them to find separately upon ter in bar. In Gardner v. Clarke, supra, these. In that way, it is probable that Selden J. said (p. 401) : " The only serious the confusion which might otherwise re- inconvenience suggested as likely to re- suit may, in most cases, be avoided. At 760 CIVIL REMEDIES. § 722. Inconsistent Defences. Three different questions are presented under this head: (1) Can. inconsistent defences be united in the same answer ? (2) When are particular defences inconsistent ? (3) If a denial and a defence by way of confession and avoidance are joined, do the admissions of the latter over- come the denials of the former, so that the plaintiff is relieved from the necessity of proving the allegations denied ? Although these questions are clearly distinct, yet the two former have often if not generally been confounded in the same decisions, so that it will be difficult to keep them entirely separate in the dis- cussion without much repetition. Assuming that the defences are utterly inconsistent, the rule is established by an overwhelm- ing weight of judicial authority', that, unless expressly prohibited by the statute, they may still be united in one answer. It follows that the defendant cannot be compelled to elect between such defences, nor can evidence in favor of either be excluded at the trial on the ground of the inconsistency.^ Notwithstanding this array of authorities, a different rule prevails in a few States. The Supreme Court of Minnesota warmly insists that the most important design of the code was to compel tlie parties to tell the truth in their pleadings ; that the decisions have generally violated this principle ; and therefore emphatically declares that inconsistent defences cannot be permitted. Inconsistent defences are also forbidden in Missouri, and perhaps in one or two other States.^ all events, the code admits, I think, ton u. Lumley, 33 Ind. 486, 488. See also other construction." See also Dutcher v. People c. Lothrop, 3 Call, 428, 450 ; Moore Butcher, 39 Wis. 651 ; Hooker v. Green, v. Willamette Co., 7 Greg. 355 ; Barr v. 50 Id. 271. Hack, 46 Iowa, 308; Wright v. Bach- 1 Springer a. Dwyer, 50 N. Y. 19 ; eller, 16 Kans. 259 ; Brace v. Burr, 67 Buhne v. Corbett, 43 Cal. 264, which N. Y. 237, 240 ; Amador Co. v. Butter- holds directly that a defendant may plead field, 51 Cal. 526 ; Billings c. Drew, 52 as many defences as he pleases. Each Id. 565 ; Citizens' Bank v. Closson, 29 must be consistent with itself, but need Ohio St. 78 ; Pavey v. Pavey, 30 Id. not be consistent with the others ; and 300 (defendant may be compelled to there is no distinction in this respect be- elect). tween verified and unverified answers. ^ Derby v. Gallup, 5 Minn. 119, 120, Bell 0. Brown, 22 Cal. 671 ; Willson v. an action for taking and carrying away Cleaveland, 30 Cal. 192 ; Mott v. Burnett, goods. The answer contained two de- 2 E. D. Smith, 50, 52; HoUenbeek v. fences : 1. A general denial. 2. Admitted Clow, 9 How. Pr. 289; Butler v. Went- the taking, and justified it under process, worth, 9 How. Pr. 282 ; 17 Barb. 649 ; The opinion of Atwater J. is very able. Smith V. Wells, 20 How. Pr. 158, 167; and difficult to be answered on principle. Vail V. Jones, 31 Ind. 467; Crawford .;. See also Cook i>. Finch, 19 Minn. 407,411 ; Adams, Stanton's Code (Ky.), 91 ; Wes- Conway v. Wharton, 13 Minn. 158, 160; INCONSISTENT DEFENCES. 761 § 723. In many instances the, courts have simply declared that the particular defences united in the answers before them were not in fact inconsistent, and have not passed upon the question in its general form. In many of these cases, however, the de- fences were apparently as inconsistent as those which have been rejected by other courts in the decisions last quoted. I have placed in the foot-note a number of examples, and have indicated the nature of the defences thus suffered to be united.^ § 12i. When a denial is pleaded in connection with a defence of new matter, or two defences of new matter are set up, the ad- missions in the one can never be used to destroy the effect of the other. The concessions of a defence by way of confession and avoidance do not obviate the necessity of proving the averments contradicted by the denial. This rule is universal. Even in those States where inconsistent defences are not permitted to stand, the remedy is by striking out, or by compelling an elec- tion, and not by using the admissions of one to destroy the issues raised by the other.^ Adams v. Trigg, 37 Mo. 141 : " A party cannot interpose a denial, and then avail himself of a confession and avoidance ; " Atteberry v. Powell, 29 Mo. 429, a gen- eral denial and justification in slander held inconsistent; Fugate v. Pierce, 49 Mo. 441, 449 ; but compare Nelson v. Brodhack, 44 Mo. 596, which holds that denials and defences of confession and avoidance are not necessarily inconsis- tent ; Auld V. Butcher, 2 Kans. 135 ; and see Baird v. Morford, 29 Iowa, 531, 534, 535. Tlie following New York cases, mostly at Special Term, which hold that inconsistent defences cannot be permitted, have been expressly overruled by the more recent ones in the same State cited above in the preceding note. Roe v. Rog- ers, 8 How. Pr. 356 ; Schneider v. Schultz, 4 Sandf. 664 ; Arnold v. Dimon, 4 Sandf . 680. 1 Nelson v. Brodhack, 44 Mo. 596, ac- tion of ejectment, general denial, and Statute of Limitations; holds that gen- eral denial and confession and avoidance are not necessarily inconsistent, and over- rules Bauer v. Wagner, 89 Mo. 385 ; and see McAdow o. Ross, 53 Mo. 199, 202; Kelly V. Bernheimer, 3 N. Y. Sup. Ct. 140, the court will not compel an election be- tween defences "unless they are so far inconsistent that both cannot properly coexist in the same transaction ; " Kellogg V. Baker, 15 Abb. Pr. 286, a general de- nial, Statute of Limitations, and release, are not inconsistent; Lansing v. Parker, 9 How. Pr. 288, in assault and battery, a general denial, self-defence, and defence of possession of land, are not inconsistent; Ostrom V. Bixby, 9 How. Pr. 57, denial and Statute of Limitations ; Ormsby t'. Douglas, 5 Duer, 665, slander, denial, and justification , Hackley v. Ogmun, 10 How. Pr. 44, action to recover possession of chattels, general denial, and a justification of the taking; Booth v. Siierwood, 12 Minn. 426, trespass to lands ; answer, (1) denies title, and (2) license; Pike «. Kiijg, 16 Iowa, 49, general denial and set-off; Willson d. Cleaveland, 30 Cal. 192, ejectment, denial of title, and Statute of Limitations. 2 Quigley v. Merritt, 11 Iowa, 147 ; Shannon v. Pearson, 10 Iowa, 588 ; Grash V. Safer, 6 Iowa, 301 ; Siter ... Jewett, 33 Cal. 92; Nudd v. Thompson, 34 Cal. 39, 47 ; Buhne v. Corbett, 43 Cal. 264. See Town of Venice v. Breed, 65 Barb. 597, 603, per MuUin J. See also, Amador Co. V. Butterfield, 51 Cal. 526; Billings v. Drew, 52 id. 565. 762 CIVIL REMEDIES. § 725. When the facts stated in an answer constitute both a defence and a counter-claim, and are not twice pleaded in separate divisions, but are alleged only once with a proper demand for re- lief as in a counter-claim, the defect, if any, can only be reached by motion. If not so remedied, the defendant may at the trial rely upon the answer in both of its aspects.^ SECTION SIXTH. COUNTER-CLAIM, SET-OFF, CROSS-COMPLAINT, AND CROSS- DEMAND. § 726. A reference to the statutory provisions collected at the commencement of section first of this chapter shows that some important differences exist among the various codes in respect to the matters stated in the above title. Most of the codes may be separated into two groups, each following a certain well- defined tj'pe. The first group contains those which provide for a " counter-claim " and for no other sort of cross-demand, and which adopt the following formula in defining it : " The counter- claim must be one existing in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action, and arising out of one of the following causes of action : 1. A cause of action arising out of the contract or transaction set forth in the complaint [petition] as the foundation of the plain- tiff's claim, or connected with the subject of the action ; 2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action." The second group embraces those in which the " counter-claim " is substantially identical with the first subdivision of the section just quoted, and in which a "set-off" is also defined in substan- tial agreement with the second subdivision. The following are the formulas adopted in this group : " The counter-claim must be one existing in favor of a defendant and against a plaintiff be- tween whom a several judgment might be had in the action, and 1 Lancaster, &e. Man. Co. u. Colgate, it purports to be a counter-claim, and sets 12 Ohio St. 344 ; but per contra, see up a cause of action, and prays for relief, Campbell v. Routt, 42 Ind. 410, 416,. which the defendant cannot treat it as a defence holds that tlie same pleading cannot be in bar merely, both a " defence " and a counter-claim : if COUNTER-CLAIM. 763 arising out of the contract or transaction set forth in the com- plaint [petition] as the foundation of the plaintiff's claim, or connected with the subject of the action." " A set-off can ouly be pleaded in actions founded on contract, and must be a cause of action arising upon contract, or ascertained by a decision of the court." The codes of Indiana and of Iowa cannot be re- ferred to either of these two general groups : their provisions are quite different in language from the common type, and much broader in meaning. They will be found quoted at large in sec- tion first of this chapter.^ In several of the States a special pro- vision is made for the introduction of new parties made necessary by the pleading of a " counter-claim " or " set-off." ^ The counter- claim in the ordinary form must be in favor of a defendant and against a plaintiff between whom a several judgment on the ac- tion is possible. This requirement, as will be seen in the sequel, may sometimes fail of working complete justice between the par- ties. Thus, for example, when a surety is sued, and a cross-de- mand against the plaintiff exists in favor of the principal debtor, the surety cannot interpose this claim because it is not in his own favor. To obviate this and similar difficulties, the codes of In- diana and of Iowa have added special provisions covering the class of cases described, aud authorizing one defendant, under certain specified circumstances, to avail himself of a counter-claim or set- off existing in favor of a co-defendant, when the liability of both to the plaintiff is joint, or one is a surety for the other .^ From a comparison of the various clauses above quoted or referred to, it is plain that the judicial decisions giving a construction to the sections of the codes embraced in the first and second groups can all be used in constructing the full theory of the " counter-claim " which forms so marked and important an element in the new pro- cedure. In aU these States, the " counter-claim " singly, or the " counter-claim " and " set-off" taken together, are not only the same in substance, but are defined in almost exactly the same language, so that the interpretation given by the courts of one State can aid in determining the questions which may arise in another. The decisions made in Indiana and Iowa, however, ' See supra, §§ 583, 584. these sections of the statutes are given in 2 Ohio, §§ 96, 98 ; Kansas, §§ 97, 99 ; full. Nebraska, §§ 103, 105; Indiana, § 63; 3 Indiana, § 58; Iowa, § 2661. See Iowa, § 2662. See supra, § 584 (n.), where supra, § 584 (n.), for these sections in full. 764 CIVIL REMEDIES. must to a certain extent stand by themselves ; for they are based upon statutes vi^hicli are in many respects special in their terms, and different in their meaning. § 727. The subject-matter of this section will be arranged in the following order, and distributed into the following sub-divi- sions : I. A general description of the " counter-claim " its nature, objects, and uses. II. The parties in their relations with the counter-claim ; including the requirements that the demand must be, 1. In favor of the defendant who pleads it; and, 2. Against the plaintiff ; and, 3. When it may be set up in favor of one or some of several defendants or against one or some of several plaintiffs ; that is, when a several judgment may be had in the action be- tween such defendant and plaintiff. III. The subject-matter of the counter-claim, or, in other words, the nature of the causes of action which may be pleaded as counter-claims. Th^ most im- portant subdivision will include several heads : viz., 1. Whether a counter-claim must be a legal claim for damages, — like the set- off or the recoupment of the former system, — or whether it may be for equitable or other special relief; 2. When the counter- claim is, or is alleged to be, a cause of action arising out of the contract set forth in the complaint or petition as the foundation of the plaintiff's claim ; 3. When it is, or is alleged to be, a cause of action arising out of the transaction set forth in the complaint or petition as the foundation of the plaintiff's claim ; 4. When it is, or is alleged to be, a cause of action connected with the subject of the action. The discussion of these topics will require the spe- cial examination and interpretation of certain phrases and clauses of the statute, upon the true meaning of which they all to a great extent depend : namely, (a) the interpretation of " the founda- tion of the plaintiff's claim," or when is a contract or transaction "the foundation of the plaintiff's claim"? (6) interpretation of "arising out of," or when does a cause of action "arise out of" a contract or transaction ? (c) interpretation of " transaction," (dy and of " subject of the action ; " (e) and of " connected with the subject of the action," or when is a cause of action " con- nected with the subject of the action " ? Resuming the state- ment of subordinate heads : 5. In actions founded on contract, a counterrclaim founded on another contract, which embraces in particular (a) the power of electing between actions in form founded on contract and those in form founded on tort ; and SET-OFF. 765 (J) the requirement that the cause of action must exist at the time when the suit was commenced. IV. Set-off as defined in several of the codes. V. Certain miscellaneous rules applicable to all counter-claims and set-offs. VI. The special provisions found in the codes of certain States, and especially in those of Indiana and of Iowa. VII. The reply. This arrangement, al- though perhaps not strictly scientific, is in exact conformity with the order pursued by the statute, and is, therefore, the one best adapted for our present purpose. A full discussion of all the topics mentioned will certainly cover the whole ground, and will develop the complete theory of the " counter-claim " as it appears in the codes. § 728. It will materially aid in determining the exact province and scope of the counter-claim if we compare it with the cross- demands in legal actions permitted by the former system of pro- cedure. I shall therefore, by way of preface, and without going into unnecessary details, state the fundamental principles upon which those cross-demands were based, and the general rules which governed their use. § 729. The Cross-Demands allowed hy the former Procedure. The cross-demands in legal actions allowed by the former pro- cedure were " set-off" and " recoupment of damages." Originally the common law acknowledged no such defence or proceeding on the part of a defendant: the primitive notion of an action did not admit the possibility of a defendant being an actor and interpos- ing a claim against the plaintiff to be tried in the one suit. The legislature effected the change, and invented the " set-off." Be- ing entirely of statutory origin, the "set-off," when used in actions at law, was necessarily kept within the limits prescribed by the terms of the enactment, and was not extended beyond their fair import. The court of chancery, not acting directly in pursuance of this legislation, but being guided rather by its analogies, was never restricted to its exact provisions, and created an "equitable set-off" broader and more comprehensive tlian that administered by the courts of law. The original English statute permitted a set-off only in the case of mutual " debts." As this word had a well-known technical meaning in the legal procedure, it served to restrict the use of the set-off to the single class of demands which were at the common law described by the term "debt;" namely, those which arise fi'om contract, and are 766 CrVIL REMEDIES. fixed and certain in their amount. There could not, therefore, be a set-off of general " damages " resulting from the breach of contracts, but only of those claims, the amount of which had been ascertained and settled by the promise itself, so that there could be no discretion in the jury, and no "assessment" by them. This original notion of the set-off was generally perpetuated in the legislation of the various States prior to the Codes of Proce- dure ; although in some its scope had been enlarged, and made to embrace any pecuniary demand arising from contract, whether "debt" or "damages." Where the original notion was pre- served, the exact language of the English statute was not alwaj's retained ; but its force and effect were not materially changed. I have given in the note an abstract of the New York statute as an example of the legislation, since it does not substantially differ from that of other States. ^ 1 2 R. S., p. 354, § 18, p. 355. §§ 21, 22; 2 Edm. Stat, at Large, p. 365, § 18, p. 367, §§ 21, 22. The defendant may set off demands which he has against the plaintiff in the following cases : 1. It must arise upon a judgment or upon a contract, express or implied, sealed or unsealed. 2. It must be due to the defendant in his own right, as being the original creditor, or as being the assignee and owner. 3. It must be for the price of real estate or personal property sold, or for money paid, or for services done ; or, if not one of these, the amount must be liquidated, or be capable of being ascertained by computation. 4. It must have existed at the time of the commencement of the suit, and must then have belonged to tlie defendant. 5. The action itself must be founded upon a similar demand which could itself he a set-off. 6. If there are several defendants, the demand must be due to them jointly. 7. It must be a demand existing against the plaintiff in tlie action, unless the suit be brought in the name of a plaintiff who has no real interest in the contract upon which the suit is founded; in which case no set-off of a demand against the plaintiff" shall be allowed, unless as hereinafter specified. It will be remembered, that, when this statute was passed, things in action were not generally assignable, so that an ac- tion could be maintained by the assignee as plaintiff': if actually transferred, the action was brought in the name of the as- signor as nominal plaintiff ; while the real owner — the assignee — was not a party to the record. But full transfers were permitted in the case of negotiable paper : the succeeding subdivisions pro- vide for the special circumstances arising when there has been an assignment. 8. In an action on a contract not negoti- able, which has been assigned by the plaintiff' [the plaintiff, therefore, being a nominal party, and having no real in- terest], a demand existing against such plaintiff, or against the assignee, at the time of the assignment, and belonging to the defendant before notice of the assign- ment, may be set off to the amount of the plaintiff's demand [that is, the demand sued upon]. 9. If the action is on negoti- able paper, assigned to the plaintiff after it became due, the defendant's demand against the assignor thereof may be set off to the amount of the claim in suit. 10. If the plaintiff is a trustee, or if he has no real interest in the suit, the defendant's! demand against the person beneficially interested may be set off to the amount of the claim in suit. In all of these latter cases, the defendant's demand, in order to be a set-off, must fall within the de- scription given in the former subdivisions. If the amount of the set-off as established eq^uals the plaintiff's demand, the judg- EECOUPMENT OF DAMAGES. 767 § 730. It is not necessary to discuss this statute, nor to cite cases illustrating its meaning. It has been displaced by the more comprehensive provisions of the code. It is clear that if the plaintiff's action was on a contract and for a " debt," — for the more extended language of the statute describes only a " debt," — and the defendant held another " debt " due from the plaintiff personallj", and existing in his own favor, and which did so exist at the commencement of the action, he could plead such demand as a set-off; and if it exceeded the amount of the plaintiff's claim, he could have judgment against the plaintiff for the sur- plus. Also in an action for the same kind of demand, brought by a plaintiff who had really assigned the claim, and was therefore a nominal party only, or brought by a plaintiff who was a trustee, or sued on behalf of another person, or brought by an assignee of negotiable paper transferred after it became due, the defendant might set off a similar kind of demand which he had against either the assignor or the assignee in the first case before notice of the assignment, or against the beneficiary in the second case, or against the assignor in the third case ; but he could not by such set-off do more than defeat the plaintiff's recovery : he could not have a judgment for any balance due to himself. The reason for this latter rule is very plain ; for in neither of these cases was the plaintiff the real party in interest and the debtor at the same time. § 731. While set-off was entirely of statutory origin, the doc- trine and practice of " recoupment of damages " had their incep- tion in the law of judicial decision. From the notion of absolute non-performance as a total defence, the progress was easy and natural, through the partial defences of a part performance and a reduction of damages by means of unskilful or negligent perform- ance, to the admission of a cross-demand in favor of the defendant for damages resulting from the acts or omissions of the plaintiff that amounted to a breach of the contract sued upon. In this manner the doctrine of recoupment took its rise, and it was de- ment shall be rendered that the plaintiff judgment shall be rendered against the take nothing by his action ; if it be less, plaintiff when the contract upon which the plaintiff shall have judgment for the the suit is founded shall have been as- residue only. If there be found a balance signed before the commencement of the due to the defendant, judgment shall be suit, nor when the balance is due from rendered for the defendant for the any otlier person than the plaintiff in the amount thereof; except that no such action. 768 CIVIL REMEDIES. veloped by decision after decision until it became established in the courts of England and of the American States, — a defence as well known and as widely admitted within its scope as the statutory set-off. There were resemblances and dissimilarities between these two defences. Both were confined to actions upon contract, and must themselves arise from contract ; but here the resemblance ends. A set-off must be for a debt, a fixed certain sum, at least capable of being ascertained by computation : re- coupment was of damages, often entirely unliquidated, and de- pending upon an assessment by a jury. A set-off was necessarily a demand arising upon a different contract from the one in suit: recoupment was necessarily of damages resulting from a breach of the very same contract sued upon. In set-off the defendant might sometimes recover a balance from the plaintiff: in recoup- ment this could never be done. The doctrine may be summarily stated. In an action upon a contract to recover either liquidated or unliquidated damages or a debt, the defendant might set up by way of defence and recoup the damages suffered by himself from any breach by the plaintiff of the same contract. At an early period it was supposed that only damages arising from the plaintiff's fraud in inducing the defendant to enter into the con- tract, or in executing the same, could be recouped ; but it was subsequently settled that fraud was not a necessary element, and that any breach by the plaintiff of the same contract which he makes the basis of his action would admit the defence of recoup- ment. The rule was stated in the following manner in a case which arose a short time before the new system of procedure was adopted: "It cannot be denied, consistently with the doctrine now well established, but that, in an action for a breach of con- tract, the defendant may show that the plaintiff has not per- formed the same contract on his part, and may recoup his damages for such breach in the same action, whether they were liquidated or not, or may at his election bring a separate action."' Recoup- ment was, however, used solely as a defence : it could do no more than defeat the plaintiff's recovery; even though the defendant's damages should exceed those proved by the plaintiff, he could have no judgment for the surplus.^ 1 Mayor v. Mabie, 13 N. Y. 151, 153, Peiroe, 3 HiU, 171 ; Murden v. Priment, per Denio J. ; and see Batterman v. 1 Hilt. 75. 2 Sickels V. Pattison, 14 Wend. 257. KECOUPMENT OF DAMAGES. 769 § 732. The nature, scope, and intent of the doctrine may be illustrated bj'' a statement of some familiar instances in wliich recoupment was used ; and it will be readily seen in all of them that the defendant's demand was based upon a breach of the con- tract which was the foundation of the action, although often of other stipulations or covenants in that agreement than the one which it was alleged he himself had broken. Thus, in an action brought to recover the price of land, the defendant could recoup the damages arising from the plaintiff's fraudulent representa- tions concerning the land, by which he had been induced to enter into the contract ; ^ and in an action for the price of goods sold, damages resulting from the plaintiff's breach of a warranty on the sale ; ^ and in an action for services, damages from the negligent or unskilful manner of their performance ; ^ and in an action on a lease for rent or use and occupation, damages from the plain- tiff's breach of a covenant to repair, or covenant for quiet en- joyment;* or damages from the plaintiff's fraud in inducing defendant to enter into the lease.^ But recoupment is confined to damages fi'om a breach of the contract sued on.® The same doctrine, which has thus far been illustrated exclusively from New York cases, prevailed in the other States to the same extent, and perhaps, in some of them, had even a wider application. A very few examples will suffice. In an action upon a promissory note, the answer alleging that the note was given by the defend- ant for the price of the plaintiff's services in constructing and mounting a water-wheel, and that the work was done and the wheel made and mounted in a very negligent and unskilful man- ner, to the defendant's damage, was held to state a proper case for a recoupment of defendant's damages ;^ and in an action upon a sealed agreement to recover an amount due for certain sawing done by the plaintiff in pursuance thereof, and also damages from the defendant's failure to furnish the stipulated number of logs to be sawed, damages arising from the plaintiff's breach 1 Van Epps v. Harrison, 6 Hill, 63. « Allaire v. Whitney, 1 Hill, 484 ; 2 Reab v. McAlister, 8 Wend. 109. Whitney v. Allaire, 1 N. Y. 305 ; 4 Denio, 8 Blanchard o. Ely, 21 Wend. 342 ; 554. Sickels V. Pattison, 14 Wend. 257; Still « Seymour . Pryor, 27 Barb. 79; Van de Sande v. Hall, 13 How. Pr. 458, per Paige J. ; Linn v. Rugg, 19 Minn. 181, 185 ; Swift V. Fletcher, 6 Minn. 550; Mc- Conihe v. Hollister, 19 Wis. 269. In this case, the defendant prayed equitable relief that the mortgage, &c., sued on by an assignee, might be cancelled on account of the mortgagee's fraud in obtaining it. The court held that this answer was in form a counter-claim, but that it could not be relied on as such by the defendant and the rehef granted, because the assign- or was a necessary party ; and the opinion implies that, if he had been made a party, the relief could have been granted. Not- withstanding this array of authorities, and the explicit language of the codes, the doctrine lias sometimes been over- looked by courts. Thus, in Page v. Ford, 12 Ind. 46, and Slayback v. Jones, 9 Ind. 470, the Supreme Court of Indiana entirely failed to notice that the demands existing against an assignor, which were set up by the defendants against tlie as- signee (the plaintiff), could not possibly be counter-claims ; and that the discussion of the court upon other points was there- fore wholly unnecessary. In the later case of Perry v. Chester, 12 Abb. Pr. N. s. 131, Mr. Justice Monell is chargeable with the same palpable oversight. The action was on an appeal bond given by two de- fendants to A., and by him assigned to the plaintiff. One of the defendants set up a demand in his own favor alone against A., the assignor, as a counter-claim. The learned judge discusses at great length the question, whether one defendant in such an action can rely upon a claim due 792 CIVIL EEMEDIES. in the note to every species of assignee, private and official ; and is established with absolute unanimity. § 753. It is an essential element in the legal notion of a coun- ter-claim that it must be a cause of action ; must consist of a right to some affirmative relief, and not be matter simply defensive, either in bar of the plaintiff's recovery, or in reduction of its amount. Thus, in an action for the price of work, labor, and material, the defendant in his answer set up payments made by him in excess of the plaintiff's demand, but did not in a formal manner, call his pleading a counter-claim, nor demand judgment for the surplus. At the trial he insisted that his allegations were admitted because the plaintiff had not replied. His contention was overruled, not upon the defects of form, but upon the absence of any cause of action. The payments as stated to have been made being voluntary, no right to recover back the excess existed ; and the answer was nothing more than the defence of payment.^ And payments or disbursements made by a trustee or holder of a fund, and set up by him in his answer to an action for an account and enforcement of the trust brought by a beneficiary, do not create any right of action, and cannot, therefore, be a counter- claim.2 § 754. In actions by married women to recover demands due to them personally as a part of their separate property, or their personal earnings, and the like, debts and liabilities of their hus- bands cannot be successfully interposed as counter-claims ; ^ and, in a suit by a widow to recover dower in land conveyed by her to himself alone ; and finally reaches the a demand against the plaintiff's assignor, conclusion that, as the undertaking of who, it was alleged, was the real party in the defendants wasjomi, the demand of the interest, was sustained; citing Hunt v. single defendant is not available. He is Chapman, 51 N. Y. 555; First Nat. Bank wholly oblivious to the fact that no such v. Kidd, 20 Minn. 234, 242,— an action claim could be interposed at all in the ac- to foreclose a mortgage, in which de- tion against the plaintiff. See also, as fendant claimed that the debt should be further illustrations of the text, Freeman enforced upon other lands before pro- V. Lorrillard, 61 N. Y. 612 ; More v. Rand, ceeding against those in suit. 60 id. 208; Manney v. Ingram, 78 N. C. '^ Duffy v. Duncan, 35 N. Y. 187, 189. 96 ; HoUiday v. McMuUan, 83 id. 270. It has been held that no counter-claim is 1 Holzbauer v. Heine, 37 Mo. 443 ; possible against the State beyond the de- and see McPherson v. Meek, 30 Mo. 345 ; feating the action brought by it, because Lash V. McCormick, 17 Minn. 403 (partial a judicial proceeding cannot be main- failure of consideration); Kent y. Cantrall, tained against it : the counter-claim can 44 Ind. 452, 459, McCrary v. Deming, be used as a defence, but no further. 38 Iowa, 527, 531 ; Lathrop v. Godfrey, 6 Commonwealth v. Todd, 9 Bush, 708. N. Y. S. C. 96, — a peculiar case, in which « Paine v. Hunt, 40 Barb. 75. COUNTER-CLAIM. 793 husband during the marriage without her release, the defendant cannot counter-claim damages arising from the breach of a coven- ant of warranty in the husband's deed ; for no right of action exists against her.^ The demand must also be against the plaintiff in the same capacity as that in which he sues. Thus, where the action is by the plaintiff in his private and personal capacity, a claim against him as an executor or an administrator cannot be made a valid counter-claim.^ But, in an action by an executor on a note given to the testator, the defendant can set up by way of counter-claim a demand for damages caused by the fraud of the deceased in the sale of land for the price of which the note was given.^ Not only must the counter-claim be a right of action against the plaintiff, but it must, in general, be against the plain- tiff alone, and against all the plaintiffs.* The exception to this 1 Hill V. Golden, 16 B. Mod. 551,554. 2 Merritt v. Seaman, 6 Barb. 330. The plaintifE sued on a note given to him as executor after the death of the testator, and the counter-claim was a, debt due from the testator. In support of its deci- sion, that these demands did not affect the plaintifE in the same capacity, the court cited Fry v. Evans, 8 Wend. 530 ; Mercein v. Smith, 2 Hill, 210 ; but see Westfall V. Dungan, 14 Ohio St. 276. When a receiver, trustee, executor, or administrator sues to recover a debt due to the estate, a demand by the defendant for services rendered on behalf of the estate on the plaintiff's employment is a good counter-claim. Davis v. Stover, 58 N. Y. 473. 3 Isham ,.. Davidson, 52 N. Y. 237. See McLean v. Leach, 68 N. C. 95 ; Bran- don V. Allison, 66 N. C. 532, for the pecu- liar rules prevailing in North Carolina. * Mynderse v. Snook, 1 Lans. 488. The opinion of T. A. Johnson J. contains an elaborate discussion of the general subject of joint and separate demands and judgments. See also, S. P. Belknap v. Mclntyre, 2 Abb. Pr. 366 ; McPherson v. Meek, 30 Mo. 345; Merrick v. Gordon, 20 N. Y. 93, 97 ; N. Y. Ice Co. u. Parker, 8 Bosw. 688. It may be interesting and instructive to contrast this rule as it has been inferred from the language found in the codes generally with the very different rule that results from the freer provisions of the Iowa statute. In an action brought by a single plaintiff to recover damages for the non-performance of a contract to sell and deliver cattle, the defendants alleged the following facts as a counter- claim, and proved the same at the trial ; that, subsequently to the agreement sued upon, they entered into a second and dif- ferent contract with the plaintiff and certain other persons composing a part- nership under the firm name of Gadsden & Co., by which they agreed to deliver, and the firm to receive, the same cattle at the same time and place, but at an en- hanced price ; that this second contract was substituted instead of the former one; that they had fully tendered per- formance, but the purchasers had wholly refused to accept and pay for the cattle, to their damage, for which they demanded judgment against the plaintiff, Gadsden & Co., of course, not being parties to the suit. This counter-claim was sustained, the court saying : " The defendants could hold him [the plaintiff] liable in this ac- tion for the damages sustained for not receiving the cattle ; that is to say, though others may have been jointly liable with him [the plaintiff], the defendants could recover their damages in this action against him. The defendants could have sued the plaintiff on this contract, and, if so, they could set up their counter-claim, and hold him for his refusal to receive. And within the rule recognized by this 794 CIVIL REMEDIES. rule is expressly provided for by the codes, and only exists in those cases where a separate judgment may be rendered for or against the person against whom the counter-claim is pleaded. This exceptional case will be examined in the following subdi- vision. § 755. 3. When the Counter-claim may he in Favor of one or more of several Defendants, and against one or more of several Plaintiffs. Tlie provision found in nearly all the codes, that the counter-claim must exist " in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action," implies that whenever the single defendant or all the de- fendants jointly may recover against one or some of the plaintiffs and not against all, or whenever one or some of the defendants and not all may recover against the single plaintiff or all the plain- tiffs jointly, or whenever both of these possibilities are combined, a counter-claim may be interposed against the one or some of the plaintiffs and not against all, and by the one or some of the de- fendants and not by all. Such a severance in the recovery is possible when the right sought to be maintained on the one side, and the liability to be enforced on the other, are not originally joint. The discussion is therefore reduced to the question, When may a severance in the judgment be had, so that it may be ren- dered for a part of the plaintiffs and against the others, and against a part of the defendants and for the others ? From the answer to this inquiry we shall ascertain between what parties " a several judgment may be had in the action ; " and as a further consequence, when the counter-claim may be against one or more of the plaintiffs, or in favor of one or more of the defendants. In pursuing the discussion, I shall collect and examine some of tlie leading judicial decisions which have given a construction to the clause, and shall endeavor to ascertain from them the general principles and rules that may determine, in each particular case, when a counter-claim of this form and nature is proper. § 756. (1.) Against one or some of the Plaintiffs. An action for an accounting and recovery of the amounts found due was brought by three plaintiffs against two defendants under the fol- court in Ryerson v. Hendrie, 22 Iowa, 296, 299. See also, Musselman v. Galli- 480, this would be so. though the contract gher, 32 Iowa, 383 ; Baird v. Morford, 29 was made with the new parties as a part- Iowa, 531, 534. nership." Eedman c. Malvin, 23 Iowa, COUNTER-CLAIM. 795 lowing ciroumstances : The five parties had entered into an agree- ment for the publication of a newspaper : the defendants were to be the actual publishers, and to have charge of the business ; and, after paying all the expenses, the net proceeds were to be divided into five equal parts, of which the defendants were to retain two, and one of the other " three parts shall be paid by [defendants] in cash to each of the other parties to this agreement," — the plaintiffs. The answer, besides other separate defences, con- tained a counter-claim consisting of a judgment recovered by the defendant E. against the plaintiff H., and assigned to both the defendants before the suit was commenced. This counter- claim was set up against the plaintiff H. alone. The New York Court of Appeals held that although the action was in form joint, yet the right of each plaintiff was several; and a several judgment, declaring the sum to which each was entitled, was necessary.^ Nothing can be more firmly settled than the general rule, that in the absence of a statutory provision to the contrary, where an action is brought by a partnership on a claim due the firm, no demand in favor of the defendant against one or some of its members can be used as a counter-claim ; but an apparent ex- ception to this rule has been admitted. If the business had been carried on by one or more of the firm as ostensible partners, a debt owing by him or them may be interposed as a counter-claim, al- though all the members have united in the action. By their mode of conducting the business, the ostensible partner or partners had been held out to the world as the real firm, and they could sue or be sued without joining the others as parties to the proceeding.^ The case of a demand against the plaintiff or plaintiffs on the record, and others who are not parties to the suit, being pleaded 1 Taylor v. Root, 4 Keyes, 335 : " Hence, cannot set off or counter-claim the indi- as to either of the plaintifEs, if the de- vidual debt of either plaintiff to defeat fendants had averred and proved payment or reduce a joint recovery." Such, how- in full of his share, the defence as to such ever, was not the present case, because plaintiff would have been effectual; and there was no joint demand on the part of yet the other two plaintiffs would have the plaintiffs. The counter-claim was been entitled to judgment for the several therefore sustained. See also, as illus- amounts of their shares. . . . The same trating the general conclusions of the principle is applicable to a defence in the te.xt, Freeman v. Lorrillard, 61 N. Y. 612, nature of a counter-claim. . . . The plain- 617; Field v. Halm, 65 Mo. 417. tiff's position is undoubtedly correct, that ^ yjjjj Valen v. Eussell, 13 Barb. 590, where the cause of action is strictly joint, 592, per Edwards J. ; citing 1 T, E. S61 and the recovery, if had, is for the joint (n.); Ex parte Enderby, 2 B. & C. 389; benefit of the plaintiffs, the defendant Smith v. Watson, 2 B. & C. 401. 796 CIVIL REMEDIES. as a counter-claim, Las already been considered. It does not present exactly the question now under consideration, but depends for its solution upon the same general principles. It is settled by the decisions, that a joint indebtedness or liability due from the plaintiff and from others not parties to the suit cannot be used as a counter-claim against the plaintiff, because such a cause of ac- tion cannot be severed and a judgment rendered against a part only of the persons liable.^ § 757. Upon the general question, When can a several judg- ment be rendered betv^een some of the parties to an action ? there has been much conflict of judicial opinion, and discrepancy of decision. It resolves itself into the broader inquiry, How far has the common-law doctrine of joint rights and liabilities been changed by the new procedure ? The judges of one school have denied any modification in these legal notions, and have restricted the language of the statute to equitable proceedings. Another school have gone to the opposite extreme, and have declared the ancient rules as to joint right and liability to be utterly abol- ished, so that a severance among the plaintiffs or defendants in the recovery may be had in all cases. ^ This loose or liberal in- ' See supra, § 754; Schubart v. Har- note was the sole property of the plaintiff, teau, 34 Barb. 447 ; Belknap v. Mclntyre, C, and stated a demand in his own favor 2 Abb. Pr. 366; Mynderse v. Snook, 1 against C, in every respect proper and Lans. 488 ; contra in Iowa, Redman v. suflSdent to constitute a counter-claim, if Malvin, 23 Iowa, 296 ; and in North Caro- the latter had been the only plaintiff. Una, Sloan w. McDowell, 71 N.C. 356-358; This answer having been struck out on Neal V. Lea, 64 N. C. 678 ; Harris v. Bur- motion, the General Term, upon appeal, well, 65 N. C. 584. This ruling is not pronounced it a valid counter-claim, and based upon any peculiar statute, but upon available to the defendant as pleaded, the general provision of the code, § 248, Two questions, it was said, are raised, that a "judgment may be given for or " Pirst, in an action upon contract by two against one or more of several plaintiffs, or more plaintiffs, can one of them have and for or against one or more of several judgment in his favor, the evidence estab- defendants ; " which is the same as found lishing the cause of action in him alone ? in all the other codes. Where, in Ken- Secondly, if so, can the defendant, upon tucky, an action was commenced against showing the cause of action to be solely in a resident of the State by a non-resident the one plaintiff, avail himself of a set-off firm, a demand against one of the plaintiffs against that plaintiff in a case where he was allowed as an equitable set-off or would have had the right to do so had the counter-claim, because the defendant could action been commenced by that plaintiff not sue upon it in that State. Wallenstein alone ? " Both of these questions were V. Selizman, 7 Bush, 175. answered in the affirmative. It was said ^^ See Cowles v. Cowles, 9 How. Pr. that the new procedure extended the rules 361. The action was brought by two of equity to all legal actions, and so far plaintiffs upon a promissory note, made abrogated the legal notions of joint right payable to them on demand. The defend- and liability : that the sections permitting ant alleged facts tending to show that the a judgment " to be given for or against COUNTEE-CLAIM. 797 terpretation has, however, been utterly repudiated by other cases, which, as it seems to me, establish, by a very decided preponder- ance of judicial authority, the doctrine as now generally accepted in those States whose codes compose the two groups mentioned at the commencement of the section.^ The doctrine established one or more of several plaintiffs, and for or against one or more of several defend- ants," are most general in tlieir terms, and slioukl not be restricted to actions in which the right sued upon is several, and not joint ; and that, a several judgment being thus made possible, the conclusion as to the propriety of tlie counter-claim against one plaintiff followed inevitably from the ex- press language of the statute. In other words, no matter what be tlie form of the action, althougli the plaintiffs have alleged a joint right in tliemselves, tlie defendant may controvert this allegation, show a several right in one of them alone, and interpose a counter-claim against tliat one. Tliis decision, it will be noticed, does not go to the length of holding tliat, when two or more plaintiffs sue upon a legal right wliich is confessedly joint, the de- fendant, while admitting tliis joint cause of action and the union of all the plain- tiffs therein, may assert a counter-claim against one, or some of them less tlian all. The reasoning of the learned judge seems logically to lead to tliat result, for it argues that a several judgment is pos- sible in all cases upon contract; and, if possible, the counter-claim is expressly permitted. See also the dictum of Folger J. in Simar v. Canaday, 53 N. Y. 298, 301. The same construction is given to the pro- vision in North Carolina. Sloan v. Mc- Dowell, 71 N. C. 356, 357 ; Neal v. Lea, 64 N. C. 678 ; Harris v. Burwell, 65 N. C. 584. 1 A few cases will illustrate this pre- vailing doctrine. In Mynderse v. Snook, 1 Lans. 488, 491-493, the court discusses the general doctrine of joint and several liabilities and judgments ; and from its able opinion I make the following ex- tracts: "The demand which the defend- ants had was against the plaintiff and V. jointly as partners and joint contractors with them. It was for damages arising from an alleged breach of the contract by these two partners. This claim, as is ap- parent, was not against the plaintiff, but against the firm of which he was an indi- vidual member. Properly there could be no several judgment between the parties to this action on account of that claim. It was not upon its face or in law a claim against a plaintiff individually. Tliis is the test (Code, § 150). It was a partner- ship debt if a demand existed. Partners are not joint and several debtors, but joint debtors only. Nothing is better settled than the general rule, that a creditor of a partnership is not entitled, as matter of law, to bring a separate action, and have a separate judgment, against one of the several partners when they are all living." The court then examined and criticised certain cases relied upon by the defend- ants. The language of Ingraham J. in Schubart v. Harteau, 34 Barb. 447, was declared to be a mere dictum, and its cor- rectness as such was pointedly denied. Briggs u. Briggs, 20 Barb. 477, and Par- sons V. Nash, 8 How. Pr. 454, were dis- tinguished from the case at bar. Tlie point of distinction in both was the fact that the liability of the defendants therein was several as well as joint ; so tliat a several judgment against each of them would have been possible. " The grounds of these decisions," the court continues, " were undoubtedly correct if the demand on which the action was brought was sev- eral as well as joint, so that the plaintiff might have had aseveral judgment in the action against either defendant. It ful- filled, in that view of it, precisely the re- quirements of the code. Neither of these cases supports the dictum in Schubart v. Harteau. According to the rule there laid down, the right to interpose and prove a demand by way of counter-claim depends upon the manner and form of the pleadings in the action, rather than upon the general principles of the law. This, I am sure, is not the true meaning of § 150 of the code. By that section, the demand must be of such a nature and character, that, upon the general rules and principles 798 CIVIL EEMEDIES. by these decisions is, that if the demand in suit was originally joint and several, although the action upon it is joint, and a fortiori if it was several, a several judgment might have been recovered, and the counter-claim against part of the plaintiffs, or in favor of a part of the defendants, is possible : when the demand in suit is originally joint, a severance is impossible. § 758. (2.) In Favor of one or some of the Defendants. In the following cases the counter-claim was interposed by one or some of the defendants against the single plaintiff, or all the plaintiffs if more than one. The same general principles of joint and several right and liability control this class of actions and the one just considered, and the same decisions are authorities in both.i The rule is settled that, in an action against defendatits who are joint contractors and jointly liable, a separate judgment against one or more less than all is not possible except in a few special personal defences ; that in an action, though joint in form, against defendants who are joint and several contractors, and a fortiori against defendants who are severally liable, such a separate recovery may always be had. The doctrine thus stated of law, a several judgment may be had upon it in the action. If it is not such, the party offering it is not entitled to use it in that way." I Peabody v. Bloomer, 5 Duer, 678, 679, per WoodruflT J. ; s. c. sub nom. Pea- body V. Beach, 6 Duer, 53 ; 3 Abb. Pr. 353. The same construction was given to the statute by Mr. Justice Marvin, and applied to the admissibility of a counter- claim, in Parsons v. Nash, 8 How. Pr. 454 ; and as his reasoning has been fre- quently approved, and his conclusions adopted by other courts, I shall quote his opinion, not as a binding authority, — for it was delivered at Special Term, — but as an argument. The three makers of a joint and several note, H., N., and P., were sued in a joint action, H. being the principal debtor, and the others his sure- ties. The answer was a counter-claim of a judgment in favor of H. alone against the plaintifls for an amount greater than the sum secured by the note. It was ad- mitted on the trial ; and the plaintifls moved to set aside the verdict. After referring to § 150, the judge proceeds : " The counter-claim is to be a claim ex- isting in favor of a defendant and against a plaintiff between whom a several judg- ment might be had in the action. This clearly indicates that there may be cases where the set-off or counter-claim may not be due to or in favor of all the defendants ; and to ascertain between whom a several judgment may be had in the action, we must look to other pro visions of the code, particularly §§ 136 and 274. In my opinion, in an answer proper for a setoff or counter-claim against several defend- ants severally liable, or Jointly and severally liable, any one of them may avail himself of his set-off or counter-claim or any number of the defendants to whom the set-off or counter-claim is jointly due may avail themselves thereof." On the gene- ral subject of counter-claims in favor of all or a part of the defendants, see also Barthgate v. Haskin, 59 N. Y. 533, 539, 540 ; Weil v. Jones, 70 Mo. 560 ; Davis v. Netware, 13 Nev. 421 ; Plyer v. Parker, 10 S. C. 464 ; Great West. Ins. Co. c. Pierce,!. Wyom. 46. COUNTER-CLAIM. 799 has been applied to the case of defendants sued upon a bond in terms joint and several.-' § 769. A peculiar question has arisen in those States whose codes permit a partnership to be sued by its firm name. In such an action, a counter-claim in favor of all the persons actually com- posing the firm may be pleaded and proved, although it discloses the existence of partners who had not been mentioned as such in the petition or complaint.^ In an action upon an injunction bond executed by the plaintiff in an equity suit and sureties, the principal defendant was permitted by the Kentucky Court of Appeals to counter-claim damages sustained by himself individu- ally from the wrongful acts of the plaintiff committed while the injunction was in force.^ As one of two or more joint debtors cannot rely upon a demand due to him separately, upon the same principle a defendant cannot interpose a counter-claim in favor of himself and another, or others jointly who are not parties to the suit.* Bonds having been issued in the name of a town in aid of a railroad under color of statutory proceedings, the town brought an equitable suit against all the holders thereof to have the proceedings declared void, and the bonds themselves cancelled. One of the defendants individually set up as a counter-claim a debt to himself from the town for money loaned. This answer was overruled on the merits, the court holding that it did not fall within the definition of any species of counter-claim. The omis- sion to rest the decision upon the obvious ground, if it existed, that a counter-claim in favor of one defendant was improper, was a plain though silent admission that this objection was untenable. In such an action a separate judgment is not only possible, but is, in fact, absolutely necessary.^ § 760. As the Iowa code is unlike that of any other State in 1 People V. Cram, 8 How. Pr. 151. missible. Pinckney v. Keyler, 4 E. D. The opinion in tliis case has been fre- Smith, 469; Slayback v. Jones, 9 Ind. qnently cited with approval, and has 470. never been questioned. See also, to the ^ Bird v. McCoy, 22 Iowa, 549. same effect, Briggs v. Briggs, 20 Barb. ' Tinsley v. Tinsley, 15 B. Mon. 454. 477, 479 ; Gordon v. Swift, 46 Ind. 208, Although the particular question under 209 ; Johnson v. Kent, 9 Ind. 252 ; Blan- discussion was not alluded to by the kenship v. Rogers, 10 Ind. 333 ; Knour v. court, its very silence must be taken as Dick, 14 Ind. 20 ; Utley o. Foy, 70 N. C. an admission that such a counter-claim in 303 ; Newell v. Salmons, 22 Barb. 647 ; favor of one defendant was proper. Perry v. Chester, 12 Abb. Pr. n. s. 131, * Stearns v. Martin, 4 Cal. 227, 229. 133. If, however, the defendants are ^ Town of Venice u. Breed, 65 Barb. joint debtors, no such counter-claim is ad- 597, 605, 606. 800 CIVIL REMEDIES. this respect, I quote somewhat freely from a very recent case, which gives a construction to its language, and explains its pecu- liar provisions. In an action against a husband and wife jointly, three counter-claims or cross-demands were pleaded as follows : (1) By both defendants jointly to recover damages caused by the plaintiff's malicious prosecution of the wife ; (2) by the husband alone to recover damages caused by the malicious prosecution of his minor children ; (3) by the husband alone to recover damages caused by the malicious prosecution of himself. The judgment of the court, giving a construction to the statute, and passing upon the validity of this counter-claim, will be found in the foot- note.^ § 761. By the decisions Avhich have been reviewed in the fore- going paragraphs, certain specific rules are clearly established for all the States whose codes may be classed in either of the two general groups mentioned at the commencement of this section. First, when the defendants in an action are joint contractors, and are sued as such, no counter-claim can be made available which consists of a demand in favor of one or some of them. Secondly, 1 Muselman v. Galligher, 32 Iowa, 383, 389. Tliere are, Jirst, " set-off," which is an independent cause of action arising on contract or ascertained by tlie decision of tlie court, and can he pleaded only in an action on contract ; secondly, " counter- claim, which is a cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, arising out of the contract or transaction set forth in the plaintiff's petition as the foundation of his claim, or connected with the subject of the action ; thirdly, " cross-demand," which is a statement of any new matter constituting any cause of action in favor of the defendant, or all the defendants, if more than one, against the plaintiff, or all the plaintiffs, if more than one, and which the defendant or defendants might have brought when the suit was commenced, or which was then held, whether matured or not, if matured when pleaded. " The ' cross-demand ' is more comprehensive than either the set-off or the counter- claim. A set-off is only pleadable in an action on a contract, and must itself arise on contract. A counter-claim must arise out of the cause of action, or be connected therewith. A 'cross-demand,' however, arises upon any independent cause of action, whether on contract or tort. But a ' cross-demand,' unlike a counter-claim, must exist in favor of all the defendants, if there are more than one, and against all the plaintiffs, if there are more than one. This is the plain reading of the statute ; so that, when there are several defend- ants, a ' cross-demand ' in favor of one only cannot be pleaded." Applying these principles, the answer in question was held to be wholly bad. The demands were certainly not set-offs, since they arose out of torts : they were not counter- claims, because they did not arise out of, nor were they connected with, the plain- tiff's cause of action. If it is said they were " cross-demands,'' they were inad- missible, because they were in favor of one defendant alone. The claim of dam- ages for the tort to the wife was declared to be one in her own favor, if it existed at all ; and the husband could not join with her in enforcing it, whether she brought an action on it as a plaintiff, or pleaded it as a " cross-demand " in an action against her. COUNTEK-CLAIM. 801 when the defendants in an action are jointly and severally liable, although sued jointly, a counter-claim, consisting of a demand in favor of one or some of them, may, if otherwise without objec- tion, be interposed. Thirdly, since it is possible, pursuant to express provisions of all the codes, for persons severally liable to be sued jointly under certain circumstances in a legal action, — that is, in an action brought to recover a common money judg- ment, — a counter-claim in favor of one or more of such defend- ants may be pleaded and proved. Fourthly, in all equitable suits wherein persons having different interests, and against whom different reliefs are demanded, may be, and constantly are, united as co-defendants, a counter-claim existing in favor of one or more of such defendants may be interposed, free from any objection based entirely upon the situation of the parties. Fifthly, when two or more persons have a joint right of action, and unite as plaintiffs to enforce the same, a counter-claim cannot be admitted against one or some of them in favor of any or all the defendants. Sixthly, when two or more persons have separate rights of action, and they are properly united as plaintiffs in one action to enforce these rights, a counter-claim may be set up against one or more of them, as the case may be. Seventhly, if two or more plaintiffs should bring an action joint in form, and should allege and claim to recover upon a joint cause of action, — even a contract, — but in fact the joinder was improper because as to some, or perhaps all but one, there existed no right of action, a recovery could be had in favor of the one or more who established a cause of action, and the complaint be dismissed as to the others ; and it would seem to follow as a necessary corollary that a counter-claim might be interposed againt the one or more of the plaintiffs under such circumstances in whose favor a separate judgment could be ren- dered. Lastly, in equitable actions, counter-claim, in favor of one or some of the defendants, and against one or some of the plain- tiffs, must be permissible as 'a general rule, since in equity the common-law doctrine of joint right and liability does not gen- erally prevail, and separate judgments, or judgments confer- ring separate relief, among the parties, are almost a matter of course. § 762. Counter-claims otherwise proper may be inadmissible or ineffectual for the want of the necessary parties before the court, since the same rules as to parties must apply to them as would 51 802 CIVIL REMEDIES. be applied if the facts alleged and the relief demanded were stated in a complaint or petition as the basis of a separate action. This objection will more frequently present itself in counter- claims that aie equitable in their nature. As the relief must be denied to the plaintiff in an equitable action unless he has brought all the necessary parties before the court, and may be denied unless he has brought in all the proper parties, and as the defend- ant pleading a counter-claim is in the same condition as an ordi- nary plaintiff, while the plaintiff against whom it is pleaded is in the position of an ordinary defendant, it follows, first, that the relief demanded by the counter-claim must be refused if all the necessary parties are not present ; and, secondly, that it may be refused if any proper parties have been omitted. These propo- sitions requii-e no argument or citation in their support. They result inevitably from the fact that the counter-claim is in its nature a cross-action, governed by the same rules which control a suit when proceeding in the ordinary and direct manner. Several examples of legal actions in which the counter-claim has failed for want of the necessary parties have already been quoted ; namely, those decisions in which counter-claims against the plaintiff in the action, and others jointly liable with him, or in favor of the defendant and others jointly interested with him have been overruled.^ A single additional authority will suffice to illustrate a principle which really needs no illustration. In an action to foreclose a mortgage, brought by an assignee thereof, the mortgagee not being a party to the rec9rd, the defendants alleged, as an equitable counter-claim, facts tending to show that the mortgage and the note secured by it were procured to be executed by the mortgagee's fraud, and that the plaintiff took with notice of the fraud, and prayed that the note and mortgage might be cancelled, and the plaintiff enjoined from enforcing them. The court said : " It is evident that, if the allegations of this answer were in the form of a complaint in a separate action asking that the note and mortgage be surrendered and cancelled, the railroad [the mortgagee] would be a necessary party defend- ant. The defendant then could not set up the facts alleged in his answer as a counter-claim in this action, for the reason that a new party must be brought before the court." ^ In a few States 1 See supra, §§ 754 et seq. See also Coursen v. Hamlin, 2 Duer, 513; 2 McConihe j)."Hollister, 19 Wis. 269. Cummings v. Morris, 26 N. Y. 625. But GODNTER-CLAIM. 803 this difficulty is very properly met and obviated by express pro- visions of their codes, which authorize the addition of new par- ties in order that the relief demanded bj' the counter-claim or set-off may be granted.^ III. The Suhject-Matter of Counter-claims, or the Nature of the Causes of Action which may be pleaded as Counter-claims. § 763. This general subdivision is naturally separated into tliree heads, which I shall proceed to examine in the order stated. A. Nature of the subject-matter generally, with special refer- ence to the question whether the counter-claim may be an equi- table cause of action and may result in the granting of equitable I'elief, or whether it must be restricted to legal causes of action and reliefs. B. The particular questions which arise under the first clause or branch of the statutory definition. C. Those which arise under the second clause or branch of the same pro- vision. A. Whether a Counter-claim may he an Equitable Cause of Action, and the Means of obtaining Equitable Relief; or whether it must he restricted to Legal Causes of Action and Reliefs. § 764. From the decisions cited in the foot-note, the following doctrines and rules are clearly and firmly established. In an equitable action, a counter-claim consisting of an equitable cause of action, and demanding equitable relief, may be interposed if it possesses all the other elements required by the definition, and may, in many if not most cases, be .pleaded by one or more of the defendants less than all against one or more of the plaintiffs. The language of the statute does not confine the use of this affirmative species of defence to legal actions, nor require that it see Du Pont v. Davis, 35 Wis. 631, 640, which holds the contrary, was expressly 641, which holds that an equitable coun- disapproved. See also Pennoyer v. Allen, ter-claim of reformation, and the like, 50 Wis. 308 may be sustained, and the relief granted, i Ohio, §§ 96, 98 ; Kans. §§ 97, 99 ; without the presence of parties coUater- Neb. §§ 103, 106 ; Ind. § 68 ; Iowa, ally interested ; as, for example, the § 2662. See these sections quoted at grantor in the deed to be reformed. The large, supra, § 584, note, case of Hicks v. Sheppard, 4 Lane. 335, 804 CIVIL EEMEDIES. should necessarily be of a legal nature itself. Adapting itself to the character of the action in which it is introduced, in those which are legal it resembles, although much broader and more comprehensive, the former set-off and recoupment, while in those which are equitable it often takes the place of a cross-bill or complaint. In a legal action, also, an equitable counter-claim may be set up and affirmative relief may be granted by its means. As the codes in express terms peTrmit equitable defences in such actions, and as in the self-same provision, and by means of the same language, the statute authorizes the joining of as many defences and counter-claims, whether legal or equitable, or both, as the defendant may have, to deny the possibility of an equitable counter-claim in a legal action, would make it necessary, if any consistency were preserved, to deny also the possibility of an equitable defence. The courts, as may be seen from the cita- tions made below, have, with a few unimportant exceptions, been unwilling to nullify the language, and defeat the design of the legislature in this manner, and following its plain meaning and import, they have freely admitted and sustained the equi- table counter-claim in all actions, whether legal or equitable, where that -form of relief was appropriate, and was authorized by the descriptive terms of the statute.^ § 765. Whether all affirmative equitable relief granted to a defendant must be limited to the cases in which a counter-claim is possible, that is, whether a defendant is unable to set up a case for equitable affirmative relief, and obtain a judgment therefor in 1 Hicksville, &c. R. R. v. Long Island amples of equitable counter-claims. Lawe E. R., 48 Barb. 355, 360; Fisher J. Moolick, o. Hyde, 39 Wis. 345 (no legal counter- 13 Wis. 321 ; Sample v. Rowe, 24 Ind. claim possible in an action of ejectment) 208; Lombard v. Cowham, 34 Wis. 486, Stowell o. Eldred, 39 id. 614; Perkins v. 491, 492, and cases cited, which sbow that Town of Port Washington, 37 id. 177 inWisconsin every equitable defence must Ingles v. Patterson, 36 id. 373; Glen & be a counter-claim. Vail v. Jones, 31 Ind. Hall Man. Co. v. Hall, 61 N. Y. 226, 236 467; Charlton v. Tardy, 28 Ind. 452; Du Cook v. Jenkins, 79 id. 575; Winslow v. Pont V. Davis, 35 Wis. 631, 639-641 ; Winslow, 52 Ind. 8 ; Hinkle v. Margerum Spalding v. Alexander, 6 Bush, 160 ; 50 id. 240 ; McManus v. Smith, 53 id. 211 Jarvis v. Peck, 19 Wis. 74 ; Grimes o. Gossard v. Ferguson, 54 id. 519 ; Teague Duzan, 32 Ind.. 361 ; Woodruff v. Garner, v. Fowler, 56 id. 569 ; Morrison v. Kramer, 27 Ind. 4 ; Eastman v. Linn, 20 Minn. 58 id. 38 ; Tabor v. Mackee, 58 id. 290 433 ; Andrews v. Gillespie, 47 N. Y. 487, Conaway v. Carpenter, 58 id. 477 ; Jeffer- 490 ; Cavalli u. Allen, 57 N. Y. 508, 514. sonville, &c. R. R. v. Oyler, 60 id. 383 See, per contra, that the counter-claim Hampson v. Fall, 64 id. 382 ; Schafer v. must always be a legal cause of action, Schafer, 68 id. 374 ; Moyle v. Porter, 51 Jones V. Moore, 42 Mo. 413, 419. The Cal. 639 ; Wheable v. Reddick, 79 N. C. following cases furnish additional ex- 521. COUNTER-CLAIM. 805 his favor against tlie plaintiff, unless he can bring the facts con- stituting his cause of action within some one of the species of counter-claim defined by the codes, is another question. There are decisions which answer this question in the affirmative, and hold that all such relief must be denied unless the defendant's cause of action is a proper counter-claim. This doctrine was recently maintained by the Supreme Court of New York. An action was brought to restrain the defendant from using a trade- mark alleged to be the sole property of the plaintiff. The answer asserted that the trademark in question belonged in fact exclu- sively to the defendant, that the plaintiff had no right to it, but was unlawfully and wrongfully using it, and thereby interfering with and injuring the defendant's business, and concluded by praying for an injunction, an account, and judgment for dam- ages. At the trial, the defendant's allegations were fully sus- tained by the proofs, and he obtained the judgment demanded. This judgment was reversed on appeal, the court saying: "To entitle the defendant to affirmative relief, the answer must set up a counter-claim.^ The claim of defendant for relief is not a counter-claim within the meaning of that term as used in the code. It does not arise out of the transaction set forth in the plaintiflp's complaint, nor does it arise on contract." ^ The gen- eral subject of the affirmative equitable relief which may be obtained by a defendant has been already discussed, and the discussion need not be repeated. Undoubtedly, in the great majority of instances, any equitable affirmative relief properly conferred upon a defendant would fall within some description of a counter-claim ; in order that it should not be a counter-claim, it must be a cause of action entirely independent of that set forth by the plaintiff, and not arising from a contract. Under the equity practice and system of pleading which prevailed prior to the codes, the matters which could be set up by a defendant in a cross-bill, as the foundation for affirmative relief to him, must have some connection with the matters originally charged against him by the plaintiff's bill, even if his demand did not directly arise out of such original matters ; an entirely distinct and inde- 1 Wright V. Delafield, 25 N. Y. 266 ; reversed on appeal, and the counter- Garvey v Jarvis 54 Barb. 179. claim was sustained as valid. Glen & 2 Glen & Hall Man. Co. v. Hall, 6 Hall Man. Co. v. Hall, 61 N. Y. 229,236. Lans. 158, 161, 162. This decision was 806 CIVIL EEMEDIES. pendent cause of action could not be alleged by the defendant in a cross-bill ; if he had such a claim, he could only enforce it by a separate suit.^ The codes do not seem to have, in any express manner, enlarged the scope and operation of the defendant's equitable affirmative relief otherwise than by the provisions relating to the counter-claim. In actions of a legal nature it is very clear that no affirmative relief can be obtained by a defend- ant, unless his cause of action or demand is a proper counter- claim. § 766. I shall close this branch of the subject by mentioning some special instances, or actions of a particular character, in which it has been held that a counter-claim is not possible, or that the affirmative relief demanded by the defendant could not be the subject of a counter-claim. In an action for a limited divorce on the ground of cruelty, the defendant's answer, charging adul- tery by the plaintiff and demanding an absolute divorce, is not a proper counter-claim ; ^ nor, in an action for an absolute divorce because of adultery, is an answer alleging cruelty and praying for a judicial separation.^ In some States a mechanic's lien is enforced, not by any special proceedings, but by an ordinary equitable suit. An answer in an action for such a purpose, alleging that the premises described in the complaint formed the defendant's " homestead," and were therefore, pursuant to stat- ute, free from all lien or charges in favor of creditors, was held not to be a counter-claim, since it stated no cause of action against the plaintiff, and was, in fact, tantamount to a denial.* § 767. It would seem that, in an action to recover the posses- sion of specific chattels, no counter-claim is possible, unless, per- haps, equitable relief may be awarded under some very exceptional circumstances. A judgment for a return to the defendant of the chattels in controversy is not a counter-claim, for it is expressly provided for by the codes, the very issue in the action being, Which party is entitled to the possession ? and the court by its judgment awarding the possession, or the value in money 1 Daniell's Chan. PI. and Prac. 1647 ; see Armstrong v. Armstrong, 27 Ind. 186 ; Story's Eq. PI. §§ 389, 397. McNamara v. McNamara, 9 Abb. Pr. 18, 2 Henry v. Henry, 8 Eobt. 614 ; 17 in which such relief was granted to the Abb. Pr. 411. defendants. 8 Diddell v. Diddell, 3 Abb. Pr. 167 ; < Englebrecht v. Eickert, 14 Minn. Griffin u. Griffin, 23 How. Pr. 183 ; Ter- 140. hune V. Terhune, 40 How. Pr. 258 ; but COUNTER-CLAIM. 807 if possession cannot be given, to the one who establishes the right ; if, therefore, the plaintiff had taken the goods into his own cus- tody by the authorized preliminary proceedings, they or their value must be restored when the action fails.^ If a counter-claim can be interposed in this suit, it must be either (1) a demand for money, or (2) a demand for the possession of certain other and different chattels, or (3) a demand for some kind of equitable relief. A counter-claim for money could not be admitted under the principle established by the cases, that the relief must have some connection with that asked for by the plaintiff, and must tend to diminish or modify it in some manner. A judgment for money obtained by the defendant could not interfere with or be counter to a judgment awarding possession of chattels to the plaintiff.^ The same difficulties attend the second alternative. It seems impossible that when the plaintiff seeks to recover pos- session of certain specific chattels, the defendant's right to the possession of other and distinct articles could arise out of the same transaction which is the foundation of the plaintiff's claim or could be connected with the subject of the plaintiff's action. The "transactions," which are the foundations of their respective causes of action, must, from the very nature of the case, be dif- ferent. It is not pretended that the action, or the cross-demand, is based upon contract. And, finally, the relief granted to the defendant would be entirely independent of that conferred upon the plaintiff; the two would be complete and entire each by itself, and thus there would be in effect two judgments, not modi- fying or interfering with each other, and not relating to the same subject-matter. This reasoning, and the conclusion reached by it, have been sustained by judicial decision, and thus seem to be supported alike by principle and by authority.^ It is possible, 1 See De Leyerw. Michaels, 5 Abb. Pr. vendee. In an action brought to recover 203, in which this doctrine was affirmed, the chattels under such circumstances, the although it plainly needs no authority in defendant might, perhaps, set up as a its support. counter-claim an independent demand due 2 See Moffat v. Van Doren, 4 Bosw. to himself from the plaintifE on contract, 609. It is possible, perhaps, that tlie and thus diminish or extinguish the un- plaintiff's right to the possession might paid balance of the purchase price. Such depend upon the defendant's failure to a counter-claim would be analogous to the pay a stipulated sum of money, as in the similar one in a suit by a vendor of land case of a conditional sale and delivery, against the vendee, which was sustained when the property was to remain in the in Cavalli v. Allen, 57 N. Y. 508. vendor until the price was paid, although ^ Lovensohn v. Ward, 45 Cal. 8. This possession had been transferred to the case expressly holds that a claim to re- 808 CIVIL KEMEDIES. perhaps, though hardly probable, that equitable relief may, under certain exceptional circumstances, be recoverable by the de- fendant in an action similar in its nature and object to the ancient replevin or detinue. Courts of equity, however, very rarely interfered in controversies concerning the title to and possession of chattels. B. The Particular Questions which arise under the First Clause or Branch of the Statutory Definition. § 768. The language of the first clause or branch of the definition, which is found in all the codes except those of Indiana and Iowa, and which is now to be interpreted, is: "A cause of action arising out of a contract or transaction set forth in the complaint [petition] as the foundation of the plaintiff's claim, or connected with the subject of the action." Following the order of this language, it is plain that three different subjects are embraced within it, and the whole discussion must therefore be separated into three corresponding divisions: namely, 1. Cases in which the cause of action alleged as a counter-claim arises out of the contract set forth in the complaint; 2. Those cases in which it arises out of the transaction set forth in the complaint ; 3. Those cases in which it is connected with the subject of the action. A complete examination of these three subdivisions re- quires a construction of certain particular phrases which form a part of the statutory definition. These are (a) " foundation of the plaintiff's claim," or when is a contract or transaction the foundation of the plaintiff's claim? (J) "arising out of," or when does a cause of action arise out of a contract or transac- tion ? (c) " transaction ; " (i) " subject of the action ; " (e) " con- nected with," or when is a cause of action connected with the subject of the action ? Although the signification of all these phrases and terms must be determined, for upon it depends the interpretation to be given to the entire provision, yet it will be impracticable to take them up and examine them separately. Each is so connected with the others, that, in ascertaining their sense, all must be considered together. The courts have invari- ably pursued this method ; and their opinions, from which our cover the possession of distinct and separate chattels cannot be set up as a counter-claim. COUNTEK-CLAIM. 809 interpretation will be taken, have always construed the statutory clause as a whole, and have not attempted to distinguish and analyze its constituent parts. I shall therefore pursue the order already mentioned, and shall discuss the three subdivisions into which the subject has been separated, and in so doing shall inci- dentally define the legal import of the several phrases and terms above enumerated. The decisions which have given, or have attempted to give, a construction to the clause are numerous and conflicting. I shall freely refer to these cases, citing those which represent all theories and schools of interpretation, and shall endeavor to collect from them such doctrines and practical rules as seem to be correct upon principle and to be supported by the weight of authority. As a preliminary step to the discussion of the three subordinate heads, I shall quote and analyze certain judicial opinions which have treated of the clause as a whole, and have proposed general rules by which its meaning may be determined. Having thus ascertained these general rules, I shall inquire what particular cases or classes of cases do or do not fall within one or the other of the three subdivisions, before mentioned. § 769. Creneral Principles of Construction. The cases now to be cited throw more or less light upon the meaning of the statu- tory clause as a whole, and also, to a certain extent, upon that of the special phrases and terms which it contains ; and fiom them some general principles of interpretation can be inferred. The lower floor of a building having been leased, the landlord brought an action for rent due. The answer was pleaded as a counter- claim. It alleged that the plaintiff occupied the upper floors of the building ; that he wantonly and negligently suffered water- pipes to get out of repair and to leak, and by this means caused filthy water to come upon the defendant's premises ; also that plaintiff wantonly and negligently caused filthy water to be thrown from his rooms upon defendant's premises ; that by these acts damages were caused to the defendant in an amount speci- fied, for which judgment was demanded against the plaintiff. A demurrer to this answer having been sustained, the defendant appealed to the New York Court of Appeals, which affirmed the decision below.^ As already said in a former chapter, the diffi- 1 Edgerton v. Page, 20 N. Y. 281, 285. ing extracts are taken : " The demand of Trom the opinion of that court the follow- the defendant set out in the answer does 810 CIVIL REMEDIES. culty in arriving at the true interpretation of the term " transac- tion " lies in the fact that it had no strict legal meaning before it was used in the statute. Being placed in immediate connec- tion with the word "contract," and separated therefrom by the not arise out of the contract set forth in the complaint. That contract is for the payment of rent upon a. lease of the de- mised premises. The defendant's de- mands arise from the wrongful acts of the plaintiff In permitting water to leak and run into the premises, and in causing it to be thrown upon the premises and prop- erty of the defendant. These acts are entirely independent of the contract of hiring, upon which the action is brought. The demands are not connected with the subject of the action ; that is, the rent agreed to be paid for the use of the premises. The defendant's demands are for a series of injuries to his property deposited upon the premises, and for impairing the value of the possession. It would be a very liberal construction to hold that, in an action for rent, injuries arising from trespasses committed by the lessor upon the demised premises might be interposed as a counter-claim. The acts of the plain- tiff in this case are of a similar nature. They are either acts of trespass or of negligence from which the injuries to the defendant accrued. Such a construction could only be supported by the idea that the subject of the action was the value of the use of the premises. But where there is an agreement as to the amount of the rent, that value is immaterial.- Unless the acts of the plaintiff amount to a breach of the contract of hiring, they are not connected with the subject of the action." The opinion proceeds to show that the acts complained of were not a breach of an implied covenant of quiet enjoyment, and concludes : " There is nothing in the answer in this case tending to show that any of the acts of the plaintiff were done under any claim of right whatever. They did not, therefore, amount to a breach of the contract created by the lease ; and the injuries sustained by the defendant do not, therefore, constitute a counter-claim connected with the subject of the action." To the same effect are the decisions and the general interpretation given to the clause in Mayer v. Parker Vein Co., 12 Abb. Pr. 300, 301 ; per Woodruff J. ; As- kins V. Hearns, 3 Abb. Pr. 184, 187, per Emott J. ; Schnaderbeck v. Worth, 8 Abb. Pr. 37, 38, per Ingraham J. ; Drake v. Cockroft, 4 E. D. Smith, 34, 89, per Wood- ruff J. ; Bogardus v. Parker, 7 How. Pr. 303, 805; Barhyte ... Hughes, 33 Barb. 320, 321, per Gierke J. These cases all give a very narrow meaning to the term " transaction," and incline to the position that a cause of action on contract, and one for tort, or two causes of action for tort, can never be said to arise out of the same transaction. The last case cited, Barhyte v. Hughes, goes so far as to hold that " transaction " and " contract " are synonymous; in other words, that no cause of action can arise out of a " trans- action " unless it springs from a contract. The following recent decisions illustrate the questions discussed in the paragraphs of the text (§§ 769-776) ; Brady v. Bren- nan, 25 Minn. 210 (in an action on con- tract, defendant may counter-claim a demand arising out of conversion, by waiving the tort, &c.) ; People v. Den- nison, 84 N. Y. 272, 279, citing Smith v. Hall, 67 id. 48 ; Pattison v. Richards, 22 Barb. 143 (in an action for a tort — fraud — a counter-claim on contract cannot be set up, since it would not arise out of the same transaction, — a very important case) ; Smith v. Hall, 67 N. Y. 48 (in an action for a conversion, there can be no counter-claim, — not the same transac- tion) ; Carpenter o. Manhattan Life Ins. Co., 22 Hun, 49 (in an action for damages from a tort, defendant may counter- claim a demand for tort, if connected with the subject of the action or arising out of the same transaction) ; on the general subject of arising out of the same transaction, see Bernheimer v. Wallis, 11 Hun, 16 ; Bradhurst v. Townsend, 11 id. 104 ; Gilpin v. Wilson, 58 Ind. 443 ; Teague w. Fowler, 56 id. 569; Douthitt o. Smith, 69 id. 463 ; Wheable v. Eeddick, 79 N. C. 521 ; James v. Cutter, 58 Cal. 31. COUNTEE-CLAIM. 811 disjunctive " or," one conclusion is certain at all events ; namely, that the legislature intended by it something different from and additional to " contract." The most familiar rules of textual inter- pretation are yiolated b}^ the assumption tliat no such signification was intended. The only question at all doubtful is, How far did the law-makers design to go, and how broad a sense did they attach to the word ? Is it to be used in its widest popular mean- ing, or must it be narrowed into some limited and technical meaning, and thus be made a term of legal nomenclature ? While in common speech, a single assault or slander or lie would not be called a " transaction," yet the whole series of events grouped around such a central fact, and connected with it, would, I think, be so designated in popular language, and a fraudulent scheme, or in other words a cheat, is a most familiar example of the class of events to which the term is usually applied. But taking the word " transaction " in the limited sense of a " negotiation of business," or some other similar expression, it is certainly a mis- take to say that torts cannot arise out of it different from and adverse to the plaintiff's cause of action. In the first place, it is certain that a cause of action based upon the plaintiff's fraud may arise out of such a " transaction," for it may spring from a contract pure and simple. In the second place, as the " negotia- tion" or "business" or "conduct of affairs" may be concerned with property, with the title to or possession of land or chattels, it is easily conceivable that a distinct cause of action in favor of the defendant may arise out of a tort to property committed by the plaintiff in the course of the " business " or " negotiation " or " conduct of affairs," such as a claim for the taking or conver- sion of goods, or for a trespass to or wrongful detention of land. Indeed, the difficulty in conceiving of distinct torts arising from one and the same "transaction" is confined almost entirely to the cases of torts to the person. It may be noticed that most of the decisions already cited, in which the possibility of distinct torts having such a common legal origin is denied, directly relate to personal wrongs alone ; and the reasoning of the courts is extended from them to all torts, without any discrimination between their different classes, and the different rules which may govern them. § 770. The cases thus far cited have all been decided by courts of New York ; I shall now quote a few which have arisen in other 812 CIVIL EKMEDIES. States. A complaint alleged that the plaintiff delivered certain flour to the defendant to be sold on commission, but that the latter had converted the same, or the proceeds thereof, to his own use, and prayed judgment for its value as damages. The answer set up the following facts as a counter-claim : that defendant had leased a flouring-mill to the plaintiff, who covenanted in the lease that he would furnish to defendant constant employment during the continuance of the term for two teams in drawing flour to Milwaukee at a stipulated sum for each load, and further cove- nanted that all the flour sent from the mill should be delivered to the defendant at Milwaukee, to be sold by him on commission, in pursuance of which agreement the flour mentioned in the com- plaint was in fact delivered ; that the plaintiff had neglected and refused to perform both of his said covenants, by reason of which the defendant had sustained damages to a specified amount, and judgment was demanded for such sum. A demurrer was inter- posed to this counter-claim, and was sustained by the Supreme Court of Wisconsin.^ Tliis opinion, quoted at large in the note, necessarily leads to the conclusion that when the plaintiff has an election to adopt one or the other of two forms of remedy, one on the contract for the breach thereof, and the other in tort for a 1 Scheunert v. Kaehler, 23 Wis. 523, is the tort or wrong done in the conversion per Dixon C. J. . " Assuming that a coun- of tlie money; that is the foundation, ter-claira may be pleaded to an action of and the sole foundation, of the plaintiff's tort, — a question not necessary to be de- claim in this form of action; for, unless eided, — and assuming also that no objec- the money was unlawfully converted, tion exists, because the contract for the the action cannot be maintained." The breach of which the defendant claims counter claim was therefore held to be damages is not set forth in the complaint, inadmissible. See also, Akerly v. Vilas, but that the counter-claim would be ad- 21 Wis. 88, 109, 110, which holds that missible, if at all, under the last clause of the counter-claim must be directly con- the subdivision as being connected with nected with the subject of the plaintiff's the subject of the action, the question re- action, or so connected that a cross-bill solves itself into an inquiry as to the ori- would have been sustained, or a recoup- gin of the cause of action stated in the ment allowed under the former practice, complaint, — whether it arises upon the when it is claimed to fall within the last contract set forth in the answer, or origi- clause of the first subdivision ; and Vilas nates in facts outside of and disconnected <>. Mason, 25 Wis. 310, 321, where, in with that contract. If the former, then an action brought upon a contract, — on the counter-claim would seem to be clearly a lease against the tenant, — a counter- within the statute ; but, if the latter, then claim for the conversion of chattels which it would not be." The opinion states that the defendant had placed upon the de- the plaintiff might have sued upon con- mised premises, was sustained, on the tract for a violation of it, or might have ground that both causes of action arose sued in tort for the wrong done him, and out of the same transaction ; also Ains- that he had chosen the latter form of ac- worth v. Boweu, 9 Wis. 348. tion, and adds ; " The subject of the action COUNTER-CLAIM. 813 conversion, and the like, the ability of the defendant to plead a counter-claim depends upon the kind of action selected ; in other words, the propriety of the counter-claim does not depend upon the actual facts out of which the plaintiff's remedial rights arise, but upon the mere nature of the remedy which he elects to en- force, and of the means which he employs for such enforcement. The result would be, that by changing the kind of action the plaintiff may cut off a counter-claim otherwise admissible. In my opinion, it was not the intention of the legislature, in adopting the reformed procedure, that the essential rights of defendants should be made to rest in this manner upon the form of remedy chosen by the plaintiffs. § 771. In a case already quoted under a former head, an action brought to set aside a deed of lands on account of the defendant's fraud, to which a counter-claim was pleaded denying the fraud, alleging the validity of the conveyance, the plaintiff's continued possession of the land and pernancy of the rents and profits, and praying a judgment awjirding possession, quieting title, and giv- ing damages, the Supreme Court of Indiana sustained the answer, and granted the relief demanded by the defendant.^ The same court has discussed the legal meaning of the phrases " arising out of " and " connected with," and has arrived at one general prin- ciple, at least, which may aid in determining their application to all particular cases. The action was to recover money deposited with the defendant who had refused to deliver it when demanded. 1 Woodruff V. Garner, 27 Ind. 4, per the plaintiff directly, and is therefore Frazer J. : " Tlie plaintiff's cause of ac- authorized by tlie statute." The " trans- tion is the alleged fraud of the defendant action " set forth in tlie complaint was in procuring tlie deed sought to be re- not simply the alleged fraud : it was the scinded. The defendant's cause of action entire business or matter of agreeing to averred in the counter-claim does not sell and purchase the land, and of exe- arise out of the plaintiff's cause of action, cuting and delivering the deed in pursu- for it cannot even exist consistently with ance of such agreement. The plaintiff it. If the fraud alleged by the plaintiff averred tliat the defendant was guilty of was perpetrated, then the defendant can- fraud ; and such fraud was therefore a not have any right of action whatever, part of the transaction, according to the So the defendant found it necessary to plaintiff's version. The defendant's cause deny the fraud. But the deed sought to of action arose out of the same transao- be set aside constitutes part of the trans- tion, — in fact it was the entire transaction, action upon which the plaintiff and the except the element of fraud, which he as- defendant both rely for a recovery. It is serted did not exist. No plainer illustra- the link which forms the direct connec- tion of a cause of action arising out of tion between the two diverse causes of the transaction which was also the foun- action. So the counter-claim for possession dation of the plaintiff's claim could be is connected with the cause of action of imagined. 814 CIVIL REMEDIES. The defendant pleaded by way of counter-claim that the plain- tiff had falsely charged him with stealing the money deposited, and had slandered him by uttering such charge in the presence of others, and prayed judgment for damages. In sustaining a demurrer to this answer the court suggested a rule of construc- tion which may be followed in all cases.^ The High Court of Appeals in Kentucky has construed the phrases " arising out of the transaction " and " connected with the subject of the action " in a very liberal and broad manner. An action was brought on an injunction bond given by T. and sureties. The plaintiff had originally commenced proceedings to obtain possession of a farm in the occupancy of T. T. had thereupon brought an equitable suit to restrain these proceedings, had obtained a preliminary in- junction, and had given the bond in question. The suit being dismissed, this action was brought on the bond, the plaintiff there- in claiming damages for being kept out of possession of the farm by means of the injunction during the continuance of the suit. The defendant T. pleaded a counter-claim, alleging that notwith- standing the injunction, and before it was dissolved, the plaintiff — the defendant in the injunction suit — wrongfully took pos- session of the land and seized the crops thereon, and converted the same to his own use, and demanding judgment for the dam- ages thus caused. At the trial the defendant had a verdict which was sustained on appeal.^ 1 Conner v. Winton, 7 Ind. 523. " The made, they could have intended might, question is, What is the legal effect of in some event, give one party a claim tiie words 'arising out of or 'connected against the other for compliance or non- with'? Do they refer to those matters compliance with its provisions. We refer which have an immediate connection with in this connection, of course, to actions the transaction? or do they include also ex coiitractu only . About actions for tort those which have a remote relation with it is not necessary to say anything at it by a chain of circumstances which were present." not had in view at its inception ? " Sup- ^ Tinsley v. Tinsley, 15 B. Mon. 454, pose C. [the defendant] had beaten W. 459, per Marshall J. " It is not required [the plaintiff] for uttering the slander, that the counter-claim itself shall be conld W. have replied the damages oc- founded in contract, or arise out of the casioned by the battery to those resulting contract set forth in the petition : but it is from the slander t and could the parties sufficient that it arise out of the trans- have settled all their quarrels in the ac- action set forth in the petition, or be con- tion to recover the money? We do not nected with the subject of tlie action. As think that the statute contemplates any the petition states the occupation of the such practice. A counter-claim is that land by Mrs. T. [the present defendant which might have arisen out of, or could and the plaintiff in the equity suit] during have had some connection with, the ori- thependency of the injunction, and claims ginal transaction in the view of the parties, damages therefor, any interference by the and which, at the time the contract was plaintiff which rendered such occupation COUNTER-CLAIM. 815 § 772. The New York Court of Appeals has passed upon the question, How far the form of the action chosen by the plaintiff, when he has an election to sue for a tort or on a contract, can affect the defendant's right to interpose a counter-claim, and has declared that it can produce no effect ; if the defendant would have been able to plead a counter-claim to a cause of action upon an implied promise, growing out of a certain state of facts, the plaintiff cannot, by adopting an action in form for a tort under the same circumstances, cut off or abridge this substantial privi- lege ; the chief design of the new procedure was to subordinate form to substance and not substance to form. An action was brought to compel the delivery of certain bills of lading, the plaintiffs alleging that the shipment was on their account, and that the goods and the bills of lading thereof belonged to them- selves, and were wrongfully detained by the defendants. Tlie answer put these averments in issue, and also set up by way of counter-claim that, since the commencement of the action, the plaintiffs had wrongfully taken possession of the goods, and had converted the same to their own use, and prayed jndgment for the value thereof. The court pronounced the defendants' demand to be a cause of action plainly arising out of the transaction set forth in the complaint, or at least connected with the subject of the action, being, as it was, for the value of the very goods which the plaintiffs sought to reach, and added the following : " I do not think it lies with the plaintiffs to allege that their taking was a mere tort for the purpose of defeating the counter-claim. And, even if an action sounding in tort might be maintained by the defendants for the taking, I am still of opinion that the cause of action for the value of the goods would constitute a good counter- claim in such a case as this." ^ § 773. I shall end this particular branch of the subject by quoting from a very able and instructive decision made by the less profitable or less valuable to the oc- to property was held to be a proper coun- cupant constituted a cause of action aris- ter-claim in an action on contract, ing out of the transaction set forth in the i Thompson v. Kessel, 30 N, Y. 383, petition, and is connected with the plain- 389, per Johnson J. The same doctrine tiff's cause of action ; and although it has been recently approved and enforced, amount to a trespass or other tort, it may after an exhaustive examination of the constitute the ground of a counter-claim." authorities by the Supreme Court of In Wadley v. Davis, 63 Barb. 500, the Missouri, in Gordon v. Bruner, 49 Mo. same principle was approved and fol- 570, 571, per Bliss J., supra, § 569 n. lowed; and a demand arising from tort And see Brady v. Brennan, 26 Minn. 210. 816 CIVIL REMEDIES. Superior Court of New York City, in which the statutory defini- tion was fully analyzed as to all its parts, and an attempt was made to reach the basis of a true interpretation. The action was brought to recover damages for the wrongful conversion of cer- tain bills of exchange. The plaintiffs had been the owners of the bills which were drawn by divers persons on different payees ; they indorsed the same and delivered them to the Ohio Life Insurance and Trust Company, for the purpose of collection only ; this company transferred them to the defendants, who now retain them ; it was alleged that the defendants took the bills with notice of all these facts, and were not holders in good faith for value. The complaint stated a demand and refusal, an un- lawful detention and conversion, and demanded judgment for the value of the securities as damages ; it was strictly for an alleged tort. The answer was pleaded as a counter-claim. It set up the drawing of the bills, their indorsement by the plaintiffs, their delivery to the Ohio Trust Company, their transfer to the defend- ants for full value and without notice, demand of payment, non- payment and notice thereof to the plaintiffs, and prayed judg- ment against the plaintiffs as indorsers for the amount due on the drafts. In other words, it was like an ordinary complaint in an action by the indorsees against the indorsers to recover the sum due on a bill or note. A motion to strike out this counter-claim was denied at the special term, and the plaintiffs appealed to the general term, which, after stating the facts and the questions presented by the record, and reciting the two subdivisions of § 150 of the New York Code, pronounced the opinion found in the note.^ 1 Xenia Branch Bank o. Lee, 7 Abb. division would therefore be unmeaning Pr. 372, 389, per Woodruff J. : " Tliis as a separate definition, if it neither con- division of the section shows that there templated cases in which the action was may be a counter-claim when the action not brought on the contract itself in the itself does not arise on contract; for the sense in which these words are ordinarily second clause is expressly confined to used, nor counter-claims which did not actions arising on contract, and allows themselves arise on contract. Tlie first counter-claims in such cases of any other subdivision, by its terms, assumes that the causes of action also arising on contract j plaintiff's complaint may set forth, as the and this may embrace, probably, all cases foundation of the action, a ' contract ' or heretofore denominated "set-off," legal a ' transaction.' The legislature, in using or equitable, and any other legal or equi- both words, must be assumed to have table demand liquidated or unliquidated, designed that each should have a mean- whether within the proper definition of ing ; and, in our judgment, their construc- set-off or not, if it arise on contract. Glea- tion should be according to the natural and son V. Moen, 2 Duer, 642. The first sub- ordinary signification of the terms. In this COUNTEE-CLAIM. 817 § 774. While the foregoing decisions do not furnish any general formulas for determining in all cases what is the " transaction " set forth in the plaintiff's petition or complaint, or what is the " subject of the action," or when the defendant's cause of action sense, every contract may be said to be a transaction ; but every transaction is not a contract. Again, tlie second sub- division having provided for all counter- claims arising on contract, and all actions arising on contract, no cases can be sup- posed to which the first subdivision can be applied, unless it be one of three classes ; viz., 1st. In actions in which a contract is stated as the foundation of the plaintiflf's claim, counter-claims which arise out of the same contract ; or, 2d. In actions in which some transaction, not being a contract, is set forth as the foun- dation of the plaintiff's claim, counter- claims which arise out of the same trans- action ; or, 3d. In actions in which either a contract, or a transaction which is not a contract, is set forth as the foundation of the plaintiff's claim, counter-claims which neither arise out of the same contract nor out of the same transaction, but which are connected with the subject of the ac- tion." After some discussion upon the difference between the provision in the first subdivision and that in the second subdivision in reference to actions and counter-claims based upon contract, in which he points out that, in the former, the language is "contract which is the foundation of the plaintiff's claim," and, in the latter, " actions arising on contract," and that this language appropriately ap- plies, in the first subdivision, to certain classes of actions in which a contract is the foundation of the plaintiffs claim, although the action does not strictly arise on the contract, and, in the second subdi- vision, to all those actions which are strictly brought on the contract, — the learned judge proceeds with the main subject: "But, secondly, the subdivision authorizes in actions in which a trans- action, not being a contract, is set forth as the foundntion of the plaintiff's claim, counter-claims which arise out of the same transaction. This, we think, in- cludes the case before us. The ' trans- action' here in question may either in- clude the history of the bills, so far as the 52 title ofthe plaintiffs ordefendants depends upon that history ; or the ' transaction ' may, perhaps, be confined to the manner and circumstances of the transfer to the defendants." The opinion recapitulates the facts of the case, and shows that, giving to the term " transaction " the first of these two meanings, the defendants' cause of action arose out of it, and adds a very important suggestion which had been overlooked in some of the decisions heretofore cited : " Some facts enter into the plaintiff's case which do not enter into the defendants' case, and vice versa. But, from tlie nature of the subject, this must always be so. The legislature were not so absurd as to mean that the defend- ant might counter-claim when the very facts alleged by him, with all their partic- ulars, were identical with those alleged by the plaintiff. ... So, if the transaction set forth as the foundation ofthe plaintiff's claim be regarded as more narrow, and as being the transfer of the bills by the Ohio Trust Company to the defendants, then, as before, the defendants' counter-claim arises out of the same transaction ; to wit, the transfer. The circumstances that the defendants have to superadd an allegation of demand, protest, and notice to the plaintiffs as indorsers, does not alter the case. This added fact is only a means of showing how the defendants' cause of action arises out of he transac- tion relied upon, and is made complete." Finally, Mr. Justice Woodruff reaches the conclusion that, even if the defend- ants' cause of action does not arise out of the " transaction " set forth in the com- plaint, it "is directly and immediately connected with the subject of the action. The subject of the action is either the right to the possession of the bills of ex- change, or it is the bills themselves. The defendants' counter-claim is not only con- nected with, but is inseparable from, either or both. The object of the action is damages ; but the subject is the bills of exchange, or the right to their posses- sion." 818 CIVIL KEMEDIES. "arises out of the transaction set forth in the complaint," or when it is " connected with the subject of the action," they do throw some light upon the true intent of the legislature in using these phrases, and they settle some principles which, when properly applied, may assist in constructing the universal rules so much needed by the profession and the bench. It is very evident that there has existed in the minds of judges a radical difference of opinion in respect to the import of the controlling terms of the stat- utory definition, and especially in respect to the word " transac- tion." One school would narrow its meaning so as to deprive it of all separate significance in the clause where it is found. They would make iteither synonymous with "contract," or would regard it as being merely the very cause of action which the plaintiff has alleged in his pleading as the ground of recovery. The other school give to the word a broader and more comprehensive mean- ing. Ux vi termini it imports something different from " con- tract," and is to be taken in its ordinary and popular sense. It is more extensive than " cause of action " or " subject of the action ; " for out of it the defendant's " cause of action " is said to " arise," and it is also to be set forth in the complaint or peti- tion, not as the " cause of action," but as the " foundation " of the plaintiff's claim. It must, therefore, be something — that combination of acts and events, circumstances and defaults — which, viewed in one aspect, results in the plaintiff^s right of action, and, viewed in another aspect, results in the defendants right of action- As these two opposing rights cannot be exactly the same, it fol- lows that there may be, and generally must be, acts, facts, events, and defaults in the transaction as a whole, which do not enter into each cause of action, but are confined to one of them alone.^ § 775. In regard to what constitutes the '' subject of the action," there is no agreement whatever in the judicial opinions. Some of them have treated it as identical with the " cause of 1 The reader should consult the analy- repeat In the text the former full discus- sis of cases, and the discussion in relation sion ; but it is plain that the decisions to the same word given in a former chap- there cited, and the results there reached, ter (Chap. III., Sec. 2). The language apply with equal force to the questions of the clause there under examination is now under consideration. There is an almost identical with that of the present evident connection between the subject passage ; and the same meaning must, of of uniting causes of action in one corn- course, be attributed to the words " trans- plaint, and tlie uniting them in one con- action " and " subject of the action " in troversy, although they are set forth in both sections of the statute. I do not the adverse pleadings. COUNTER-CLAIM. 819 action," which is plainly incorrect. As I have already shown, the " cause of action " consists in, 1st, tlie primary right, and the facts from which it flows ; and, 2d, the breach of that right, and the facts constituting such breach. These taken together create a remedial right, and are the cause of action. The remedy itself is certainly the "object" of the action. The "subject" is cer- tainly not the cause of action ; but when we have reached this conclusion we find very little judicial aid in arriving at any other and more affirmative one. Some judges have said that in all possessory actions, and all actions to establish property, the " subject of the action " denotes the things to assert a right over which, or to obtain the possession of which, the action is brought, as the land in ejectment and in many equity suits, or the chat- tels in replevin. Some have said that the "subject" denotes the same in other classes of actions, not brought to recover pos- session or expressly to establish title, but in which, nevertheless, the plaintiff's right to recover is based upon his property in a specific thing, as for the conversion of chattels, or for trespass to lands or chattels ; while some have applied the same principle to actions not based upon any alleged property of the plaintiff in a specific thing, and have gone to the extent of holding that, in actions upon contract to recover the debt due or damages for the non-performance thereof, the " subject " is the very contract itself, — the instrument in suit, as, for example, in an action upon a bill or note, the " subject," according to this view, would be the bill or note sued upon. Other judges have said that the " sub- ject " is the right which is sought to be enforced in the action ; meaning thereby the primary right, which has been infringed upon as distinguished from the remedial right, and from the delict and the remedy. Thus in the case last quoted, which was an action for the conversion of bills, Mr. Justice Woodruff declared that the subject was either the bills themselves, or the plaintiff's original right to their possession. It would, as it seems to me, be correct to say in all cases, legal or equitable, that the " subject of the action " is the plaintiff's main primary right which has been broken, and by means of whose breach a remedial right arises. Thus, the right of property and possession in ejectment and replevin, the right of possession in trover or trespass, the right to the money in all cases of debt, and the like, would be the " subject " of the respective actions. Although in a certain 820 CIVIL EEMEDIES. sense, and in some classes of suits, the things themselves, the land or chattels, may be regarded as the " subject," and are some- times spoken of as such, yet this cannot be true in all cases ; for in many actions there is no such specific thing in controversy over which a right of property exists. The primary right, however, always exists, and is always the very central element of the con- troversy around which all the other elements are grouped, and to which they are subordinate. In possessory and proprietary actions, this right, which will then be always one of property or of possession, will be intimately associated with the specific thing itself which is the object of the right ; but this relation is not and cannot be universal. It seems, therefore, more in accordance with the nature of actions and more in harmony with the lan- guage of the statute to regard the " subject of the action " as denoting the plaintiff's principal primary right to enforce or main- tain which the action is brought, than to regard it as denoting the specific thing in regard to which the legal controvers}'^ is car- ried on. In this manner alone can we arrive at a general rule applicable to all possible cases, and the rule thus reached fully satisfies all the requirements of the legislative language, and can be invoked in all classes of actions. While I suggest and adopt this meaning of the term " subject," I freely concede that no decision, so far as I have discovered, pronounces this interpreta- tion to be the only one admissible ; many cases sanction it, none directly reject it ; but none, on the other hand, have gone so far as to declare in its favor to the exclusion of all other meanings. The construction proposed, as it has been judicially approved in many instances, would remove all doubt and conflict of opinion, and would furnish a simple and practical rule of universal appli- cation. § 776. In respect to the phrase " connected with " the subject of the action, one rule may be regarded as settled by the deci- sions, and it is recommended by its good sense, and its conve- nience in practice. The connection must be immediate and direct. A remote, uncertain, partial connection is not enough to satisfy the requirements of the statute. The criterion proposed by the Supreme Court of Indiana in one of the cases cited is as certain and practical as the nature of the subject admits, and only needs to be known to be universally accepted. It is, that the connec- tion must be such that the parties could be supposed to have COUHTER-CLAIM. 821 foreseen and contemplated it in their mutual acts; in other words, that the parties must be assumed to have had this connection and its consequences in view when they dealt with each other. I now pass, according to the order already stated, to the three branches into which the subject-matter is naturally separated. I. Cases in which the Cause of Action alleged as a Counter-claim arises out of the Contract set forth in the Complaint or Petition as the Foundation of the Plaintiff's Claim. § 777. Mr. Justice Woodruff, in the opinion last quoted, de- clares that the second subdivision of the definition was intended to embrace all cases in which the plaintiff's cause of action arises on contract, and the defendant's counter-claim also arises on con- tract, either the same or another, and that the clause of the first subdivision above mentioned was designed to include only those cases in which the contract is set forth by the plaintiff as the foundation of his action, although the action itself is not on the contract. This is, I think, attributing too much nicety and pre- cision of thought to the legislature, and assumes that it would never enact any duplicate provisions. The first subdivision no doubt covers the cases mentioned by Judge Woodruff, but it also embraces many others. Undoubtedly, the codifiers and the legis- lature in drawing and adopting the first subdivision had in mind the doctrine of recoupment, and so framed the language that it should include cases of recoupment and all others, legal and equi- table, analogous to it, — that is, all cases in which the right of action of the plaintiff and that of the defendant arise from the same contract. It describes, therefore, not only the special and infrequent classes of instances in which the plaintiff's claim is not technically on the contract, although a contract is set forth as its foundation, but also all other instances in which the plaintiff's action is strictly brought on the contract, while the defendant's counter-claim in both cases arises fi'om the same contract. The central idea of this subdivision then is, that one and the same contract is the basis of both parties' demand for relief. Passing to the second subdivision, the central thought is equally plain, viz., that the plaintiff's cause of action, and that of the defend- ant, spring from different contracts ; in other words, the codifiers and the legislature had in mind the familiar case of set-off, both 822 CrVIL REMEDIES. legal and equitable. But, in framing the clause, the language was made broader than was necessary, and it actually covers all cases in which the plaintiff's cause of action is on contract, and the defendant's counter-claim is also on contract the same or another. The law-makers have thus in fact given us two provi- sions authorizing a counter-claim arising from the same contract as that from which the plaintiff's cause of action results, but only one authorizing a counter-claim springing from another contract than the one upon which the plaintiff's demand is based. The same case may therefore be often referred to both of these sub- divisions ; but I shall, following what seems to be the plain design of the statute, consider under the first all those instances in which the demands of both parties arise from the same con- tract, and postpone to the second all those in which each demand arises from a separate contract. That this is the correct construc- tion of the whole provision is made certain, when we turn to the form which it assumes in all the codes which constitute the sec- ond group according to the classification stated at the commence- ment of this section. 1 § 778. It may be stated as a general proposition that in all actions to recover a money judgment, debt or damages, upon a contract, or where a contract is set forth as the foundation of the plaintiff's claim, a counter-claim of a money judgment against the plaintiff for his breach or non-performance of any stipulations of the same agreement, or for his fraud in procuring the same to be entered into, is admissible. The following examples will illus- trate this proposition. In an action for rent brought by the lessor or by the grantee of the reversion against the lessee or an assignee of the term, where the lease contains a covenant to repair on the part of the landlord, damages sustained by the de- fendant from a breach of this covenant may be alleged, and 1 The following recent decisions give Townsend, 7 id. 875; Griffin v. Moore, examples and illuatrayons of counter- 52 Ind. 295 ; McMahan v. Spinning, 51 id, claims arising out of the contract, &c. : 187 ; Hinkle v. Margerum, 50 id. 240 More V. Kand, 60 N. Y. 208, 214 ; King v. Black c;. Elmer, 54 id. 544 ; Morrison v. Knapp, 69 id. 460 ; Boyd v. Schlesinger, Kramer, 58 id. 38 ; Howe Machine Co. v. 59 id. 301, 305, Howard u. Johnston, 82 Reber, 66 id. 489; Merrill v. Nightingale, id. 271 ; Nat. Bk. of Auburn v. Lewis, 81 39 Wis. 247 ; Bonnell, v. Jacobs, 36 id. 59 id. 15 ; Cook v. Jenkins, 79 id. 575 ; Croumger v. Parze, 48 id. 229 ; Caleb v. Levy V. Loeb, 85 id. 365 ; Read v. Decker, Morgan, 83 N. C. 211 ; Craig v. Heis, 30 5 Hiin, 646 ; Morgan «. Smith, 5 id. 220 ; Ohio St. 550 ; Hade v. MoVay, 31 id. 231 ; Elwell V. Skiddy, 8 id. 73 ; Nichols „. Fraker u. Galium, 24 Kans. 679. COUNTEE-CLAIM. 823 recovered as a counter-claim. The damages in one such case, where the demised premises were a hotel, were held to be the sum paid by the defendant for making the necessary repairs, together with the amount of loss occasioned by the inability to use certain rooms in the hotel while they were out of repair.^ In an action by the buyer against the seller to recover damages for the non-delivery of goods bargained and sold, the latter may counter-claim the unpaid price of that part of the goods already delivered under the contract.^ When sued for the price of two articles sold under one agreement, the defendant may set up and recover damages resulting from the fraudulent representations of the plaintiff in respect to one of them, even though such damages exceed in amount the whole price agreed to be paid for both.^ A person having sold his business and good-will at a certain price, and having covenanted in the same agreement not to engage therein at the same place, and the damages for a breach of this covenant having been liquidated and fixed at a specified sum, in an action brought by the vendee to recover this amount of liqui- dated damages on the ground that the vendor had violated his agreement, the defendant was permitted to recover the unpaid portion of the purchase price as a counter-claim.* § 779. It is settled by numerous decisions, although there were at first some expressions of a contrary opinion, that in an action to recover the price of goods sold and delivered, or bargained and sold, the purchaser's demand of damages for the plaintiff's breach of his warranty of the quality of the goods may be pleaded as a counter-claim ; in fact, there can be no simpler and plainer illustration of a counter-claim arising out of the very contract set up by the plaintiff as the basis of his recovery.^ When the plain- 1 Myers v. Burns, 35 N. Y. 269; Cook grounds of recovery or defence ; and proof V. Soule, 56 N. Y. 420 ; 1 N. Y. S. C. 116 ; of one cannot be given when the other Benkard v. Babcock, 2 Robt. 175. alone is pleaded, Dudley v. Scranton, 57 2 Leavenworth v. Packer, 52 Barb. N. Y. 424, 427. 132, 136. * Baker v. Connell, 1 Daly, 469 ; and ' Rawley v. Woodruff, 2 Lans. 419, see Ainsworth v. Bowen, 9 Wis. 348. and see Hoffa v. Hoffman, 33 Ind. 172, 5 Lemon v. Trull, 13 How. Pr. 248; where damages from fraud were counter- Warren v. Van Pelt, 4 E. D. Smith, 202 ; claimed in a foreclosure suit. When, in Dounce v. Dow, 57 N. Y. 16; Love v. an action on a contract, the defendant set Oldham, 22 Ind. 51 ; French v. Saile, up a counter-claim of damages from the Stanton's Code (Ky.), 96; Morehead v. plaintiff's fraud, he cannot, at the trial, Halsell, ib. 96; Earle v. Bull, 15 Cal. 421; rely upon a mistake in making the agree- Hoffa v. Hoffman, 33 Ind. 172. See contra, ment : fraud and mistake are distinct Nichols v. Boerum, 6 Abb. Pr. 290. This 824 CIVIL REMEDIES. tiff, who had been employed as a superintendent of the defend- ant's manufactoiy undera written agreement stipulating for his services in that capacity at a specified salary for a year, brought an action for his wages, alleging that he had been wrongfully discharged, a counter-claim of damages sustained by the de- fendants in their business, through the negligent and unskil- ful conduct of the plaintiff in violation of the provisions of the same contract, was pleaded, and was fully upheld by the court.i § 780. I have collected and placed in the foot-note a number of additional cases in which the answers were sustained as valid counter-claims on the ground that they arose out of the contract set forth in the complaint or petition ; in some of them, however, the court merely said that they arose either from the " contract or transaction set forth " by the plaintiff, and did not distinctly determine which of these expressions was strictly the proper one to be used.^ case has been expressly overruled. See also Nichols v. Townsend, 7 Hun, 375, citing Gurney v. Atlantic, &c. E. R., 58 N. y. 358; Dounce v. Dow, 57 id. 16; Day V. Pool, 52 id. 416 ; Merrill v. Night- engale, 39 Wis. 247 ; Bonnell v. Jacobs, 36 id. 59 ; Giffert v. West, 33 id. 617. 1 Lancaster, &c. Man. Co. v. Colgate, 12 Ohio St. 344 ; Stoddard v. Treadwell, 26 Gal. 294. But see Barker v. Knicker- bocker Life Ins. Co., 24 Wis. 630, in which, under exactly similar circum- stances, the defendant's claim that the contract should be cancelled was refused, on the ground that the facts made out a perfect defence at law ; but no counter- claim of damages was pleaded. 2 Racine Bank v. Keep, 13 Wis. 209 ; Butler V. Titus, 13 Wis. 429 ; Koempel v. Shaw, 13 Minn. 488 ; Gleadell v. Thomson, 56 N. Y. 194, 198 ; Isham v. Davidson, 52 N. y. 237 ; Whalon v. Aldrich, 8 Minn. 346; Mason v. Hey ward, 3 Minn. 182; Dale V. Masters, Stanton's Code (Ky.), 97; Dennis k. Belt, 30 Cal. 247; Wilder t>. Boynton, 63 Barb. 647 ; Burton v. Wilkes, 66 N. C. 604, 610; Hay v. Short 49 Mo. 139. See McKegney v. Widekind, 6 Bush, 107, as to the extent of the relief which may be granted to the defendant in a legal action, and when the contract must be reformed by an equitable pro- ceeding. For examples of valid counter- claims where the defendant had an election to sue for a tort or on contract, see Gordon v. Bruner, 49 Mo. 570; Tins- ley V. Tinsley, 15 B. Mon. 454 ; Norden U.Jones, 33 Wis. 600, 604; but per con- tra, see Slayback v. Jones, 9 Ind. 470. Damages resulting to the defendant from a wrongful issue of an attachment in the action may be counter-claimed, if such act of the plaintiff was a breach of the contract sued on, Waugenheim v. Graham, 39 Cal. 169, 176 ; but such damages cannot generally be recovered by way of a coun- terclaim, Hembrock v. Stark, 53 Mo. 588 ; Nolle V. Thompson, 3 Mete. (Ky.) 121. A counter-claim of damages from a per- sonal tort, as e. jr., a slander, is impossible, Conner v. Winton, 7 Ind. 523. COUNTER-CLAIM. 825 II. Cases in which the Cause of Action alleged as a Counter-claim arises out of the Transaction set forth in the Complaint or Peti- tion as the Foundation of the Plaintiff's Claim. § 781. I shall in this subdivision pursue the same plan as in the last, and collect the various classes of cases in which coun- ter-claims, legal or equitable, have been sustained as properly arising out of the transaction set forth in the complaint, and also those in which such attempted counter-claims have been over- ruled ; and I shall add whatever comments, or extracts from judicial opinions, seem necessary to the clear inference and state- ment of the general principles and practical rules established by the courts. The import of the term " transaction," and of the phrase " arising out of," has been already discussed with some fulness. Without repeating this discussion, the cases cited will illustrate and complete it. § 782. The cases cited will be classified and arranged into groups according to their nature ; that is, according to the relief demanded by the respective litigants. The first of these classes will contain cases in which the actions are legal, and both parties seek to recover a judgment for money alone. This will be subdivided into (1) Those in which the plaintiff's cause of action and the defendant's counter-claim are in form for debt or damages upon contract express or implied ; (2) Those in which the plaintiff's cause of action is in form for debt or damages upon contract express or implied, and the defendant's counter- claim is for damages arising from a tort, either (a) for conver- sion of goods, or (6) for trespasses or injuries to property or to person, or (c) for fraud; (3) Those in which the plaintiff's cause of action is in form for damages arising from a tort, and the defendant's counter-claim is for debt or damages upon con- tract ; and (4) Those in which the demands of both parties are for damages arising from a tort. The second will contain legal actions in which the judgment is other than for money ; and the third will embrace equitable actions. § 783. First Class : Legal Actions in which both Parties demand a Money Judgment : (1.) Where the Plaintiff's Cause of Action and the Pefendanfs Counter-claim are in Form for Debt or Damages upon Contract, express or implied. A complaint alleged that the de- 826 CIVIL REMEDIES. fendant had in his possession $115, of which two thirds belonged to the plaintiff, and was received by the defendant to his use, and demanded judgment therefor ; the answer, besides a defence of denial, stated by way of counter-claim that the plaintiff had him- self in fact received all the money in question ($115) ; that one third thereof belonged to the defendant, and was received by the plaintiff to the defendant's use, and prayed judgment for such sum. This answer was adjudged to be a proper counter-claim arising out of the transaction set forth in the complaint ; and the plaintiff having failed to reply, the allegations thereof were ad- mitted.^ Several of the decisions quoted in the last preceding subdivision may also be regarded as examples of the class de- scribed under the present head ; the contract set forth by the plaintiff might be considered a " transaction." Their facts need not be repeated, and their titles will be found in the foot-note.^ § 784. (^2,.) Cases in which the Plaintiff's Cause of Action is upon Contract, and the Defendant's Counter-claim is for Damages arising from a Tort. No little conflict will be found among the decisions which are embraced within this group. The judges have been constantly influenced by the established doctrine of the former procedure, which excluded without exception any set-off or recoupment or cross-demand that did not spring from contract. Some have gone to the length of holding that a ca,use of action in favor of the defendant resulting from a tort cannot possibly arise from the " transaction " set forth by the plaintiff as the foundation of his claim ; others, however, have given a more liberal and comprehensive interpretation of the term. Their differing views can best be seen by a comparison of their judicial opinions. In an action for the price of a safe sold and delivered, the defendant pleaded a counter-claim, that the plaintiff had con- 1 Clinton v. Eddy, 1 Lans. 61. In an " Eacine Co. Bank v. Keep, 13 Wis. action upon a note, tlie defendant was 209 ; Butler v. Titus, 13 Wis. 429 ; Eoem- not permitted to recover back usurious pel v. Shaw, 13 Minn. 488; Whalon v. interest paid by him to the plaintiff on Aldrich, 8 Minn. 346 ; Mason v. Heyward, former loans as a counter-claim, because 3 Minn. 182 ; Dale v. Masters, Stanton's the demand did not arise out of the same Code (Ky.), 97 ; McKegney v. Widekind, transaction; nor as a set-off, because it 6 Bush, 107; Stoddard v. Treadwell, 26 did not arise on contract, Smead D. Chris- Cal. 294; Dennis v. Belt, 30 Cal. 247; field, 1 Disney, 18 ; but it seems a demand Hay v. Short, 49 Mo. 1.S9 ; Gordon o. to recover back usurious interest paid for Bruner, 49 Mo. 570 ; Wilder u. Boynton, the very loan which is the basis of the 63 Barb. 547. action would be a valid counter-claim, Martin v. Pugh, 23 Wis. 184. COUNTER-CLAIM. 827 verted to his own use a safe, the property of the defendant, for the value of which he demanded judgment. The Common Pleas of New York City held that this answer was based upon tort ; that the defendant had not so framed it as to waive the wrong and sue upon an implied promise for the price, and that the pleading was not a proper counter-claim. Having thus fully dis- posed of the issues, the court went on to declare that if the de- fendant might waive the tort and bring suit in form for the price, the demand would not be a valid counter-claim, because the cause of action would not arise upon contract ; ^ and upon a complaint for the price of goods sold and delivered, the Superior Court of New York City rejected a counter-claim for the wrongful conver- sion by the plaintiff of other goods belonging to the defend ant. ^ No allusion was made in the latter decision to the doctrine of election of remedies between an action for the tort, and one in form upon contract ; and in neither of the cases could it be pre- tended that the defendant's demand, in whatever shape it might be put, arose out of the transaction stated by the plaintiff. On the other hand, when, in a suit upon a promissory note, the de- fendant pleaded as a counter-claim that he had pledged certain stocks with the plaintiff as security for the debt ; that the latter had wrongfully sold them, and prayed judgment for their value, — the Supreme Court of Wisconsin, in reversing a judgment for the plaintiff rendered on the trial, assumed that the facts consti- tuted a good counter-claim.^ § 785. Damages from Trespasses, Nuisances, Negligences, and the like. In an action by the lessor for rent, an answer, which stated that during the continuance of the term the plaintiff erected an oven, furnace, and other apparatus for a bakery under the store demised to and occupied by the defendant, and by the use thereof had filled the premises with smoke, soot, and steam, and had injured the defendant's goods, and demanded judgment for the damages so caused, was treated as a valid counter-claim by the New York Superior Court.* But in a similar action the New 1 Piser V. Stearns, 1 Hilt. 86. ^ Ainsworth v. Bowen, 9 Wis. 348. 2 Kurtz V. McGuire, 5 Duer, 660. See * Ayres v. OTarrell, 4 Eobt. 668 ; 10 also Stelnhart u. Pitcher, 20 Minn. 102; Bosw. 143. When the cause was first Street v. Bryan, 65 N. C. 619, actions on before it, the court held that by replying contracts in which counter-claims of dam- the plaintiff had waived all objection : on ages arising from unconi;ected torts were the second appeal, the counter-claim was rejected. more definitely approved. 828 CIVIL REMEDIES. York Common Pleas rejected a counter-claim which alleged that at the time of the letting mentioned in the complaint the plain- tiff leased other premises to the defendant, and that he had before the commencement of this suit wrongfully broken into said premises and taken therefrom certain chattels of the defendant, which he had injured, destroyed, or lost, and prayed judgment for the value of the goods so taken. The court declared that this cause of action clearly did not arise out of the contract or transaction set forth in the complaint, nor was it connected with the subject of the action : it was a naked and independent act of trespass.^ § 786. Similar decisions have been made in other actions than those for the recovery of rent. In a suit upon a note given for the purchase price of land conveyed to the defendants, they were not permitted to counter-claim damages for the plaintiff's wrong- ful entry upon the land so conveyed, and cutting and carrying away a growing crop the title to which had passed by the deed.^ It has, however, been recently held by the Supreme Court in New York, that a c.iuse of action for a tort may arise out of the transaction set forth by the plaintiff; and such a counter-claim was fully sustained in an action on contract.^ § 787. Damages arising from Fraud. Cross-demands for dam- ages resulting from fraud will naturally occur, and, it would seem, might be easily sustained. But there have bee.i decisions ' Drake v. Cockroft, 4 E. D. Smith, trated by the following recent cases : 34, 39. See also Gallup v. Albany R. R., Brady v. Brennan, 25 Minn. 210 (action 7 Lans. 471 ; Edgerton v. Page, 20 N. Y. on contract, counter-claim for conversion 281,285; Mayor w. Parker Vein Co., 12 by waiving the tort); Goebel u. Hough, Abb. Pr. 300 ; McKensi'e v. Farrell, 4 26 id. 252 (action by a lessor for rent, Bosw. 192, 202, which were all actions counter-claim of damages for plaintiff's for rent in which counter-claims for wrongful trespass on the premises); De- damages from torts of the lessor were vries v. Warren, 82 N. C. 356 (plaintiff rejected. and defendants were co-tenants of land ; ^ Slayback v. Jones, 9 Ind. 470 ; per plaintifE sold his share to defendant and contra, see Gordon v. Bruner, 49 Mo. 570, took defendant's bond for the price; in 571 (which was decided on the doctrine an action on the bond, defendant could of election) ; Xinsley v. Tinsley, 15 B. not counter-claim damages done to the Mon. 454, 459; Smith v. Fife, 2 Neb. 10, land by the plaintiff before the sale); 13, in all which, counter-claims of damages Harris v. Rivers, 53 Ind. 216 (in action from trespasses to land were sustained ; on a promissory note, no set-off for tort but a counter-claim of damages arising possible); Collier v. Ervin, 3 Mont. 142 from a personal tort cannot be sustained, (action on contract, no counter-claim for Conner v. Winton, 9 Ind. 523. a tort unless it arose out of the same 8 Wadley v. Davis, 63 Barb. 500. The transaction, &c.). discussions of the text are farther illus- COUNTER-CLAIM. 829 which reject even such counter-claims. In an action on two promissory notes, the defendants — the makers — alleged that thej^ executed a trust deed of land as security for their notes, and proceeded to state acts of fraud committed by the plaintiff in collusion with the trustee in the deed, by which the land was sacrificed and bought in by the plaintiff at far less than its value, and prayed judgment for the damages resulting from the fraud. The Supreme Court of Missouri overruled this counter-claim in an opinion which contains many palpable errors, and which has been disregarded by subsequent decisions of the same tribunal.^ The Supreme Court of Indiana, however, sustained a counter- claim in every way analogous to the one just described.^ It would seem that little or no difficulty would be met in giving such a construction to the statutory definition as will embrace the cases of damages resulting from the plaintiff's frauds. If the action was on contract, such damages formed a most familiar example of the former " recoupment ; " and it is only necessary to extend that doctrine to analogous cases in which a " transac- tion ' is to be substituted in place of a contract. § 788. (3.) Cases in which the Plaintiff's Cause of Action is for a Tort, and the Defendant's Counter-claim is in Form upon Contract. The examples of this class of controversies have generally been actions for the wrongful conversion of goods in which the coun- ter-claim of debt or damages upon contract was interposed, and rested either upon the theory that both demands arose out of the one transaction set forth by the plaintiff, or upon the notion that the plaintiff's cause of action might be regarded as founded upon an implied contract, the tort being waived. Such an action hav- ing been bj'ought in form for the conversion of goods, the answer contained a counter-claim Setting up a liability of the plaintiff as a stockholder in a certain manufacturing corporation, averring all the facts required by the statute to create a personal responsibil- ity in him for a debt of the company. This attempted counter- claim was of course overruled, as it had not the least connection with the transaction stated in the complaint, nor with the subject of the action.3 I submit the following doctrine as correct onprin- 1 Jones V. Moore, 42 Mo. 413, per 11 Abb. Pr. 210. See also Allen v. Ean- Holmes J. dolpli, 48 Ind. 496. In Sclieunert «. 2 Vail V. Jones, 31 Ind. 467. Kaeliler, 23 Wis. 523, wliich was an ac- 3 Chambers v. Lewis, 28 N. T. 454; tion for the conversion of goods, a conn- 830 CIVIL REMEDIES. ciple, and as derived from a true interpretation of the statute. Whenever the facts are such that an election is given to the plaintiff to sue in form either for a tort or on contract, and if he sues on contract the defendant may counter-claim damages for the breach of that contract, the same counter-claim may also be interposed when the suit is in form for the tort : the facts being exactly the same in both phases of the action, the counter-claim would clearly arise out of the real transaction which was the foundation of the plaintiff's demand. The term " transaction " refers to the actual facts and circumstances from which the rights result and which are averred, and not to the mere form and man- ner in which these facts are averred. Although there are deci- sions which repudiate this interpretation of the codes, and reject the liberal rule drawn from it, I think the doctrine thus stated is now approved and supported by the decided weight of judicial opinion as expressed in the more recent authorities. § 789. The tort complained of by the plaintiff may not be a conversion of chattels. The fact that a cause of action upon contract in favor of the defendant may arise out of the transac- tion set forth in the complaint or petition in an action in form for damages resulting from a tort, was distinctly recognized, and the doctrine that a counter-claim setting up such a demg,nd should be admitted, and should not be rejected in deference to notions which the new procedure was designed to supplant, was clearly and cogently enforced by the Supreme Court of Indiana in an opinion from which I make a quotation.^ ter-claira of damages from the breach of 162; Manney v. Ingram, 78 N. C. 96; the contract between the parties out of HoUiday v. McMillan, 83 id. 270 ; Ring whicli the plaintiff's cause of action arose v. Ogden, 44 Wis. 303 ; but Spousenberger was rejected, the court adding that it o. Lemert, 23 Kans. 55, held that in an must also have been rejected even had action against a constable for his failure the plaintiff brought his suit in form on or neglect to serve process properly, the the contract, which he miglit have defendant's fees in the same case were a done, because the right of action would good set-off or counter-claim, still in fact be for a tort. The following i Judah o. Trustees, &c., 16 Ind. 56, recent cases show that the courts are 60. The plaintiffs — trustees of the Vin- Btrongly inclined to hold that a counter- cennes University — sue to recover the claim on contract is impossible in an value of certain bonds belonging to the action for tort, since the two could not in corporation, received by the defendant the nature of things arise out of the same as its attorney, and converted by him to transaction: People v. Denison, 84 N. Y. his* own use. He admits the receipt and 372, 379; Smith v. Hall, 67 id. 48; Hum- detention of the securities, and alleges, phrey v. Merritt, 51 Ind. 197 ; Hess v. by way of counter-claim, that the untver- Toung, 59 id. 379; Boit v. Sims, 60 id. sity was indebted to him for certain pro- COUNTER-CLAIM. '831 § 790. (4.) Cases in which the Demands of both Parties are for Damages arising from Tort. Counter-claims of damages from torts, when attempted to be enforced against causes of action for damages also arising from other torts, have, with few excep- tions, been rejected. The courts have been inclined to adopt, or at least to assume, a general principle that such a cross-demand can never arise from the transaction set forth hy the plaintiff as the foundation of his claim. It will be seen, however, that this doctrine has not been universally accepted. In all the cases placed in the foot-note, the proposed counter-claims were over- ruled on the ground that the cross-demands were for unconnected torts. 1 Opposed to this array of authorities, all announcing the same general doctrine, there are a few cases which sustain a counter-claim of tort against a tort under special circumstances.^ fessional services, particularly described, including his services in procuring these very bonds, among others, to be issued to it by tlie State, and prays judgment for the amount of such indebtedness. In pronouncing upon the validity of this answer as a counter-claim, the court say : " The point is, that the action is in form trover, — an action ex delicto, — and that, under such action, the defendant cannot avail himself of any claim which he may have against the plaintiffs for services rendered, or money expended, on their behalf, even if it was in the recovery of the identical property which is the subject of the present action. We are clear that it was the intention of those who initiated and inaugurated the present Code of Procedure that parties litigant might, and perhaps should, determine "in each suit all matters in controversy be- tween them which could legitimately be included therein, keeping in view their substantial rights. As proceedings so distinct as those were at law and in equity are no longer required to be separated, but are now blended in one action, we are unable to see any reason for requiring two actions to determine a controversy in which the rights of each party are so dependent upon the rights of the other as in the case at bar. There is most surely an equitable view of this question, as pre- sented in the case at bar, which renders it distinct and different from an ordinary case in which one should convert the property of another, and then set up as a defence that the owner was indebted to him for some other and distinct transac- tion." The Supreme Court of North Carolina has recently approved this doc- trine in the most emphatic and general manner, holding that opposing demands on contract and for tort may arise out of the same transaction. Bitting v. Thaxton, 72 N. C. 541, 549. For a case in which such a counter-claim was rejected because it did not " arise out of the same transac- tion," &c., see Pattison v. Richards, 22 Barb. 143. See the additional cases cited ante under § 788. 1 Askins v. Hearns, 3 Abb. Pr. 184, 187 ; Schnaderbeck v. Worth, 8 Abb. Pr. 37; Barhyte v. Hughes, 33 Barb. 320; Henry w. Henry, 3 Robt. 614; 17 Abb. Pr. 411; Murden v. Priment, 1 Hilt. 75; Shelly V. Vanarsdoll, 23 Ind. 543; Love- joy V. Robinson, 8 Ind. 399 ; Macdougal V. Maguire, 35 Cal. 274, 280; the last case holding that the objection is not re- moved by replying and going to trial instead of demurring. See however, Carpenter v. Manhattan Life Ins. Co., 22 Hun, 49. 2 Tarwater v. Hannibal & St. Jo. R. R., 42 Mo. 193. In McArthur v. Green Bay, &c. Canal Co., 34 Wis. 189, 146, the ac- tion was brought for injuries done to the plaintiff's boat while passing through the canal, caused by a break in the canal 832 CITIL REMEDIES. The court of last resort in Kentucky has even gone to the extent of holding that, in an action for an assault and battery, a counter- claim of damages for an assault and battery committed by the plaintiff at the same time, and as a part of the same affray, can be interposed, because it arises out of the same transaction, thus giving to that word a very broad and liberal meaning.^ § 791. Second Class : Legal Actions in which the Judgment is other than for Money. I pass now to the consideration of legal actions in which tlie judgment is other than for money ; that is, for the recovery of chattels or of lands. In all instances of this class, the question would present itself, and would be the con- trolling one, whether the counter-claim has such a relation to the plaintiff's cause of action that a recovery upon it would defeat, lessen, or modify the relief which would otherwise be obtained by him. The practical question, therefore, is. When, if ever, may there be a counter-claim of money in an action brought to recover possession of chattels ? In some exceptional cases such counter- claims have been allowed, and in my opinion properly allowed. For example, an answer stating the circumstances under which the goods demanded by the action came into the defendant's possession, that the plaintiff was indebted to him in a specified amount, that the chattels were delivered to him as a security for such debt, and that he held them by virtue of the lien thus created by the pledge, and demanding judgment for the debt itself, was adjudged a proper counter-claim.^ The New York Court of Appeals has also sustained the counter-claim under circumstances involving the same principle.^ The result of these alleged to have resulted from defendant's changed. This case certainly carries the negligence; the defendant set up, as a doctrine of counter-claim to its extreme counter-claim, that tlie break itself was limits. See Carpenter v. Manhattan caused by the plaintiff's negligence, and Life Ins. Co., 22 Hun, 49 (such counter- prayed a judgment for the damages, claim possible). This counter-claim was sustained, the ' Slone v. Slone, 2 Mete. (Ky.) 339. court saying: "If it does not arise out 2 Brown ;;. Buckingham, 11 Abb. Pr. of the transaction set forth in the com- 387 (Sp. Term). See also Walsh v. Hall, plaint, it certainly is connected with' the 66 N. C. 2-33, 237; but see, per cmtra, subject of the action." See also Walsh Gottler v. Babcock, 7 Abb. Pr. 392 (n.). ■;. Hall, 66 N. C. 233, 237, in which the s Thompson v. Kessel, 30 N. Y. 383, plaintiff sued to recover possession of a 389 ; per contra, see Moffat v. Van Doren, horse which defendant had sold him in 4 Bosw. 609. With respect to legal coun- excliange for a tract of land, and the de- ter-claims in the action of ejectment, see fendant counter-claimed damages arising Lawe v. Hyde, 39 Wis. 345 ; Eeed v. from the plaintiff's fraudulent repre- Newton, 22 Minn. 541; Haggin u. Clark, sentations in reference to the land so ex- 51 Cal. 112; Moyle v. Porter, 51 id. 639. COUNTEE-CLAIM. 833 authorities is, that a cause of action on contract for money may so arise out of the transaction which is the foundation of the plaintiff's claim that it can be interposed as a counter-claim in an action brought to recover the possession of chattels. The case of a pecuniary counter-claim in an action to recover possession of lands has already been fully discussed. § 792. Third Class : Cases in which the Plaintiff's Cause of Action or the Defendanfs Counter-claim, or both, are equitable in their Nature. The general subject of equitable counter-claims has already been examined, and illustrated by numerous exam- ples. It is thoroughly settled as a fundamental doctrine of the new procedure in relation to pleading, that an equitable counter- claim may be interposed to a legal cause of action, and a fortiori to one which is itself equitable. I shall not repeat the discus- sion to be found in a former part of this section, but shall simply collect in the note a few examples which will illustrate the modes by which such species of cross-demands may arise out of the transactions set forth by the plaintiff in his complaint or peti- tion.i III. Cases in which the Cause of Action alleged by the Defendant as a Counter-claim is or is not connected with the Subject of the Action. § 793. Little need be added under this particular head to what has been already said in the foregoing subdivisions. The cases cited in the preliminary general discussion contain all the most 1 Sandford v. Travers, 40 N. Y. 140, a counter-claim of debt or damages on any 143 ; Akerly v. "Vilas, 15 Wis. 401 ; Allen contract is proper, Briggs v. Seymour, 17 V. sliackelton, 15 Ohio St. 145, 147 ; Mo- Wis. 255. The following were actions berly v. Alexander, 19 Iowa, 162; Hill for other kinds of equitablerelief : Grimes V. Butler, 6 Ohio St'. 207, 216. The fore- v. Duzan, 32 Ind. 361 ; WoodruflT v. Gar- going we're foreclosure suits of purchase- ner, 27 Ind. 4 (actions to set aside a deed money mortgages, in which the mortgagor of land) ; Eastman u. Linn, 20 Minn. 433 counter-claimed damages for the breach (to quiet title) ; Vail v. Jones, 31 Ind. of the covenants of title in the plaintiff's 467 ; but if the cross-demand does not deeds, or for tlie breach of some, other arise out of the transaction which is the collateral agreement, or for the plaintiff's foundation of the plaintiff's cause of ac- fraud; but, in such an action, a counter- tion, and is not connected with the sub- claim 'for 1 slander of title in respect to ject of his action, it cannot be a counter- the land cannot be sustained, Akerly ;;. claim, Town of Venice v. Breed, 65 Barb. Vilas, 21 Wis. 88, 109 ; Briggs v. Sey- 597, 605. See recent cases cited ante mour', 17 Wis. 255. It has been inti- under § 764. mated that in a mortgage foreclosure suit 63 834 CIVIL EEMEDIES. important attempts to give a judicial construction to the phrase " connected with the subject of the action : " many of those which have been quoted to explain and illustrate the clause "arising out of the transaction," &c., were also referred by the courts which decided them to the language of the statutory defi- nition now under consideration, — that is, the counter-claims were held valid because they were " connected with the subject of the action," as well as because they " arose out of the transaction set forth in the complaint." Finally, it may be said that each one of the cases in which the counter-claim was overruled is an illustration of a demand in favor of the defendant not connected with the subject of the action. § 794. The language of the phrase is exceedingly general and vague. To construe it requires a satisfactory interpretation of the terms " subject of the action " and " connected with." It may, I think, be regarded as settled that the connection here spoken of must be direct and immediate. At the same time, it must be considered as something different from " arising out of; " in other words, the defendant's cause of action may be suffi- ciently " connected with the subject of the action," although it do not " arise out of the transaction." It can hardly be said, how- ever, that the courts have definitely settled what is a sufficient connection of itself, when not so complete that the defendant's cause of action could also be said to arise out of the transaction set forth by the plaintiff ; unfortunately, in nearly all the cases where the judges have held that the counter-claim was connected with the subject of the action according to the true meaning of the statute, they have also said that it arose out of the transac- tion stated in the complaint. The most that can be asserted with any degree of assurance is, that the connection must be imme- diate and direct, and something that the parties can be assumed to have contemplated in their deahngs with each other. I shall merely cite in the note a few cases which contain a discussion of the clause, and serve to illustrate and explain its scope and oper- ation.^ 1 Ashley ». Marshall, 29 N. T. 494 ; 139, 146 ; Eastman v. Linn, 20 Minn. 433 ; Vose V. Galpen, 18 Abb. Pr. 96 ; Xenia Walsh v. Hall, 66 N. C. 233, 237 ; Bitting Bank v. Lee, 7 Abb. Pr. 372 ; 2 Bosw. v. Thaxton, 72 N. C. 541, 549 ; Thompson 694 ; McAdow «. Ross, 53 Mo. 199, 207 ; u. Kessel, 30 N. Y. 383, 389 ; Vilas v. Ma- Jones V. Moore, 42 Mo. 413; McArthur son, 25 Wis. 310, 319; Judah v. Trustee, V. Green Bay, &c. Canal Co., 34 Wis. 16 Ind. 56, 60 ; Wadley v. Davis, 63 Barb. COUNTEK-CLAIM. 835 C. Counter-claims embraced within the Second Subdivision of the Statutory Definition and Set-offs. § 795. The form of this provision, as found in the codes which make up the first group, as originally classified at the commence- ment of this section, is, " 2. In an action arising on contract, any- other cause of action also arising on contract, and existing at the commencement of the action." This is substantially the definition of " set-off " given in the codes of the second group. The language of this clause plainly includes all cases of counter- claim based on contract when the plaintiff 's cause of action is also on contract. Since, however, the first branch of the defini- tion covers all those instances where the counter-claim and the plaintiff's right of action both spring from the same contract, the discussion of this second subdivision will be confined to the in- stances in which, the cause of action being on contract, the counter-claim arises from a different contract. For the reasons before given, and which need not therefore be repeated, this construction of the two parts into which the entire definition is divided seems to me to be in conformity with the plain intent of the legislature and the evident design of the statute. § 796. In reference to the most important and controlling requisite of this provision and that defining set-off, no questions of difficulty can arise, since the language itself is so simple and direct that no room is left for doubt as to the construction. If the plaintiff's cause of action arises on contract, any counter- claim, legal or equitable, or set-off, also arising on contract, is admissible, provided the general rule heretofore stated is com- plied with, that the relief granted to the defendant shall in some manner interfere with,' lessen, or modify, if not destroy, that otherwise obtained by the plaintiff. This clause greatly enlarges the scope of the former legal " set-off," for it admits demands for unliquidated damages as well as for debts or amounts ascertained and fixed by the stipulations of the parties. It is also much broader in its operation than the " equitable set-off," which was permitted by Courts of Chancery, for affirmative equitable relief may be obtained by the defendant which would come within no 500- -Waugenheim v. Graham, 39 Cal. (Ky.) 121. See Glen & Hall Man. Co. 169,' 176; Nolle v. Thompson, 3 Mete. i;. Hall, 61 N. Y. 226, 236. 836 CIVIL KEMEDIES. description of an " equitable set-off," as the term was formerly understood. So far as relates to the subject-matter, therefore, in all actions to recover money, either debt or damages arising on contract, any counter-claim of debt or damages arising on another contract is valid. When the relief asked for by the plaintiff, or that demanded by the defendant, is equitable, whether the coun- ter-claim is proper must depend upon the nature of these reliefs ; that is, upon the fact of their interfering with each other so that one tends to destroy, or at least to modify, the other. While there can be little or no difficulty, therefore, in applying this pro- vision, so far as the. subject-matter of the counter-claim is con- cerned, certain collateral questions are presented, either expressly or impliedlj', by the clause, which are not always so easy of solu- tion. One of these is involved in the requirement that the cause of action constituting the counter-claim must be " existing at the commencement of the action." Another is implied in the phrase " arising on contract." Can a cause of action be said to " arise on contract " when it results from facts which amount to a tort, and would enable the injured party to bring an action in form ex delicto ? In other words, can either party resort to an election between two kinds of proceeding, and thus make his suit or counter-claim in form " arising on contract " so as to satisfy the requisites of the statute ? In treating of the topics thus suggested, I shall, 7?rs^, consider the general requirement that the cause of action constituting the counter-claim must be existing at the commencement of the action; and shall, secondly, collect and classify the various cases which have been determined by the courts, and which furnish examples of counter-claims arising from different contracts. In this review the question how far a party may, for the purposes of complying with this statute, elect between an action for a tort and an action on contract, will be answered .1 1 The following are recent decisions mer, 36 id. 262 ; Foulks v. Rhodes, 12 illustrating this class of counter-claims: Nev. 225; Carver v. Shelley, 17 Kana. Barthgate v. Haskin, 59 N. Y. 533, 539, 472 ; Greer v. Greer, 24 id. 102 ; Quinn v. 640 ; Patterson «. Patterson, 59 id. 574 ; Smith, 49 Cal. 163 ; Wheelock v. Pacific, 1 Hun, 323 ; Taylor ti. The Mayor, &c., 82 &c. Gas Co., 61 id. 223; Humphrey v. N. Y. 10; Westervelt v. Ackley, 62 id. Merritt, 51 Ind. 197; Harta. Housten, 50 505; 2 Hun, 258; 4 T. & C. 444; Van id. 827 ; Grocers', &c. Co. w. Newby, 58 id. Brunt K.Day, 81 N. Y. 251; 17 Hun, 166; 570; Town v. Bringolf, 47 Iowa, 133; Clapp V. Wright, 21 Hun, 240 ; Wilson v. Tolman v. Johnson, 43 id. 127. Runkel, 38 Wis. 526 ; Chapman v. Plum- COUNTEE-CLAIM. 837 § 797. The codes do not requiie that the contract out of which the counter-claim arises should have been originally made with the defendant. The demand may have once been in favor of some third person, and by him assigned to the defendant. When this is the case, the provision under revievy, as found in most of the codes, makes it necessary that the assignment should be full}"- completed before the action is commenced, or else the cause of action could not be " existing " in the defendant at the " com- mencement of the action." In the second place, tiie right of action, which is the basis of the counter-claim, must have accrued before the commencement of the action ; the debt or damages must be both due and payable, or the claim for equitable relief must be perfect, so that a suit to enforce it could be maintained, or else the cause of action would not be " existing " in the de- fendant at the time specified in the statute.^ If, then, an exist- ing right of action is assigned to the defendant after the action against him is commenced ; or if a claim on contract is transferred to him before that time, but does not become due and payable or enforceable until after the suit is begun ; or, lastly, if a claim is existing in favor of the defendant at the time the action is com- menced by virtue of a contract originally made with him, but does not become payable or enforceable until after that time, — in none of these cases can the demand be set up by him as a counter-claim in the action. The answer must also allege that the demand was existing in favor of the defendant when the ac- tion was commenced. These positions are fully sustained by the decisions.^ § 798. I now proceed to inquire. What causes of action on contract, and on what contracts, may be counter-claimed under - In one or two of the codes, however, comnnencement of the action, although it is sufficient that the demand is due and the written assignment of the same was payable when pleaded, if it was held by executed after that date, it can be used as the defendant at the time the action was a counter-claim, "West v. Moody, 33 Iowa, commenced. Shannon y. Wilson, 19 Ind. 137, 139; Cottle v. Cole, 20 Iowa, 485; 112. See also Chapman v. Plummer, 36 Conyngham v. Smith, 16 Iowa, 471. It is Wis. 262. held, in North Carolina, that, if the coun- 2 Rice 0. O'Connor, 10 Abb. Pr. 862; ter-claim is not barred by the statute of Van Valenu. Lapham, 5 Duer, 689; Gan- limitations at the time the suit is com- non V. Dougherty, 41 Cal. 661 ; Riekard menced, it is good, although the statutory V. Kohl, 22 Wis. 506 ; Newkirk v. Neild, time may have elapsed when it is actually 19 Ind. 194. If the demand had been pleaded. Brumble v. Brown, 71 N. C. 513, actually transferred to the defendant by 516. an absolute verbal assignment before the 838 CIVIL KEMEDIES. this second branch of the definition ? It may be stated as the universal rule that, in an action on contract to recover debt or unliquidated damages, the defendant may counter-claim debt or damages arising on another contract, whether such damages are unliquidated or ascertained. But in the absence of statutory requirement he is not obliged to do so ; he may refrain from urging his demand in this manner, and may enforce it in a sep- arate action.'' A few early cases lay down a different doctrine, and require the damages to be liquidated so that they would con- stitute a good set-off under the ancient rules ; but these deci- sions are palpably erroneous, and are completely overruled.^ The right of action must of course arise out of contract, or be on con- tract ; and it has been doubted whether the claim for contribution by one surety against a co-surety so arises from contract that it may be counter-claimed in an action brought upon another con- tract.^ This doubt, in my opinion, is altogether too refined. Whatever may have been the equitable origin of the claim of one surety against another, it is very well settled that he could main- tain a common-law action of assumpsit to recover his contribu- tory share. This shows that the law treated the liability as one arising from an implied promise. In presenting his counter-claim the defendant must conform to all the requirements of pleading 1 Lignot 0. Bedding, 4 E. D. Smith, breach, and damages. Held, a good coun- 285 ; Sehubart v. Harteau, 34 Barb. 447, ter-claim ; that plaintiH's pTomise was per Ingraham J. ; Atwater v. Sclienck, 9 binding, the defendant's prejudice in buy- Wis. 160, 164, per Cole J., an action on a ing them being a sufficient consideration, note, counter-claim of the amount due for The defendant need not set up his cross- the price of land sold ; Conway v. Smith, 13 demand as a counter-claim, see Douglas v. Wis; 125, 139, per Paine J., counter-claim First Nat. Bank, 17 Minn. 35 ; Emmer- of damagesfornon-perforraanceofabuild- son's Administrator w.Herriford, 8 Bush, ing contract by the builder; Bidwell v. 229, and cases cited; V7oody f. Y. 171; tin, 62 N. Y. 486 ; Brown v. Gallaudet, 80 Derr v. Stubbs, 83 N. C. 539 ; Hall v. id. 413; Inslee u. Hampton, 8 Hun, 230; Clayton, 42 Iowa, 526; Inslee v. Hamp- Swenson v. Cresop, 28 Ohio St. 668. ton, 11 Hun, 156. When a counter-claim 2 So in Minnesota Code, § 68 ; Lowry is pleaded the plaintiff cannot dismiss or 1^. Hurd, 7 Minn. 356, 36.3, per Atwater J. discontinue the whole action without de- " The defendants were not only at liberty fendant's consent, so as to prevent the to set up this claim, but, by § 68, unless counter-claim from being tried. Purnell v. they did so, they could not thereafter Vaughan, 80 N. C. 46 ; Amos v. Humbolt maintain an action against the plaintiff Loan Ass'n, 21 Kans. 474 ; Sale )>. Bugher, on such claim." See Bicker .;. Pratt, 48 24 id. 432; Gwathney v. Chatham, 21 Ind. 73. Hun, 576 ; Tabor v. Mackkee, 58 Ind. 8 Moore v. Caruthers, 17 B. Mon. 669, 290. 844 CIVIL KEMEDIES. for the whole amount of his counter-claim as established by his proofs. The foregoing rules presuppose that both demands are for the recovery of money, either debt or damages. If the plain- tiff's cause of action, or the counter-claim, is for the recovery of some special relief, legal or equitable, the judgment rendered must be according to the circumstances of the case. As has been shown in the foregoing citations, there may be instances in which it would be impossible for the defendant to take anything by his counter-claim, unless the plaintiff's cause of action should be entirely defeated. There is a dictum in an Indiana case to the effect that, where the action is for the recover}^ of money, a pe- cuniarj' counter-claim, less in amount than the sum demanded by the plaintiff, is inadmissible, because, as was said, it was not a complete bar or answer to the action.-' This dictum was founded upon an entire misconception of the object and uses of the coun- ter-claim. It is not, in any true sense, a defence in bar of the plaintiff's cause of action. It may be pleaded when the plain- tiff's claim and right to recover thereon are admitted ; but, at the same time, it is alleged that the defendant has also a right on his side to recover a sum from the plaintiff upon an independent cause of action, which will equal, and so destroy, or exceed, or diminish the amount which would otherwise be the plaintiff's due. Undoubtedlj'', when the plaintiff's complaint shows that he is entitled to a certain sum, — say $.500, — and the defendant, not controverting these allegations by any defence in bar, simply in- terposes a distinct cross-demand for a less amount, — say f 300, — the plaintiff's right to a judgment for the difference is at once admitted ; and the pleadings may be so framed, by the express provisions of some, if not all, of the codes, that he is immediately able to recover the sum so admitted upon the record, while the issues as to the remainder are left to be tried. To say that a de- fendant shall not avail himself of a smaller demand, and thus lessen the amount of the plaintiff's recovery, because he can- not allege facts which would defeat that recovery altogether, is as palpably unjust, and is warranted by no requirements of the statute. § 806. Cross-complaints. The practice in a few of the States admits a " cross-complaint " by a defendant, not only against the plaintiff, but against other defendants. Although there is a 1 McCIintic's Administrator v. Cory, 22 Ind. 170, 173, per Worden J. CKOSS-COMPLAINT. 845 general similarity, if not substantial identity, in the provisions of the various codes concerning the granting of relief to defendants against the plaintiffs or against each other, yet a very great differ- ence in the actual practice founded upon these provisions has grown up in the several States. In most of them, the clauses of the statute referred to are practically a dead letter ; while in a few they have been accepted and acted upon according to their evident intent.^ A wide departure has thus been made in the latter commonwealths from the methods which prevailed before the introduction of the reformed, procedure. This practice, in respect to cross-complaints against plaintiffs and against other defendants, will be best illustrated by a reference to the facts and decisions of a few prominent cases taken as examples. In an action brought by Joanna Morris against Thompson and Dice, the complaint alleged that the plaintiff, as widow of C. Morris, deceased, was owner in fee of certain land, namely, one undi- vided third of land, of which her husband died seized ; that she was induced by the frauds of Thompson, in a manner particularly described, to execute to him a deed of all her said lands : a sec- ond paragraph states the same deed to have been made to Thomp- son by mistake ; that the heirs of her husband also conveyed all their interest in the same land to T. at the same time, who thus held the title to the entire tract ; that therefore T. conveyed five- sevenths of said tract to the defendant Dice, who took with knowl- edge of the plaintifl"s claim ; prayer, that her deed to Thompson might be declared void, that T's deed to D. might be set aside, so 1 In some of these States the cross- v. Monti, 3 Call, 56 ; Monti v. Bishop, 3 complaint on petition is used in cases id.605; Mills w. Buttrick, 4id. 63; Tucker where, under tlie equity practice, the de- v. McCoy, 3 id. 284 ; Hatcher v. Briggs, fendant would be entitled to file a cross- 6 Oreg. 31 ; Sheland