representatives of all or of any of them, Kentucky]. 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." 1

§ 119." (1) The court may determine any controversy between 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 liability 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." 2

1 Kentucky, § 39; Iowa, § 2550. In Kansas all joint contracts are declared to be joint and several; on the death of one or more of the joint promisors or obligors, the right of action exists against the representatives of the deceased and against the survivors; when all die, the right of action exists against the representatives of all the deceased debtors; in all cases of joint obligations or joint "assumptions of partners or others, the action may be prosecuted against any one or more of those who are so liable. See Gen. Statutes (1868), ch. 21, §§ 1-4. The same provisions are found in the statutes of Missouri, Wagner's Stat., vol. i. p. 269, §§ 1-4.

2 In the following States these provisions form a single section, as in the text: New York, § 122; Wisconsin, ch. 122, §§ 22, 23; Florida, § 73; South Carolina, § 145; N. C. § 65; Nevada § 17; Idaho, § 17;

Dacota, § 75. In these others they are separated into three sections, corresponding to the three subdivisions of the text: Ohio, §§ 40, 41, 42; Kansas, §§ 41, 42, 43; Nebraska, §§ 43, 44, 45. In others still they form two sections, embracing respectively the first and second subdivisions and the third: Indiana, §§ 22, 23; Kentucky, §§ 40, 41. In California, §§ 389, 386, correspond to the first and third subdivisions of the text. In the others there is but one section identical with the first subdivision of the text: Oregon, $$ 40, 382; Mis. art. 8, § 4; Iowa, § 2551; see Minnesota, §§ 38-41; Wash. §§ 12-14; Wyo. §§ 45-47; Mont §§ 17-22. The provisions of the Iowa and California codes in relation to "intervening," which are very special and unlike that in the text, are quoted in a subsequent section of this chapter.

§ 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." 1 “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." 2 "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 unmarried female may prosecute as plaintiff an action for her own seduction, and recover such damages as may be found in her favor." 4

§ 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 personally served, provision being made for extending its effect to the other members by some subsequent proceeding. The following is the type of these provisions, and they are all substantially the same: "An action may be brought by or against a partnership, as such, or against all or either of the individual members thereof; and a judgment against the firm, as such, may be enforced against the partnership property, or that of such members as have appeared or been served with notice. And a new action may be brought against the other members on the original cause of ac

1 Minnesota, § 32; California, § 375; Iowa, § 2556. But the last clause, as to Oregon, § 34; Indiana, § 25. the guardian and ward, is not found in the Iowa code; Oregon, § 33; Indiana, § 27.

2 Minnesota, § 34; Indiana, § 26; Iowa, § 2564.

3 Minnesota, § 33; California, § 376;

4 Iowa, § 2555; California, § 374; Oregon, § 35; Indiana, § 24.

1

tion." Certain other special provisions in relation to parties will be quoted in subsequent sections, and especially the legislation of the various States concerning suits by and against married 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 exception 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 plaintiffs 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 controlled 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 provisions quoted above did repeal and abrogate these long and firmly established rules and doctrines of the common law, and have therefore wished to confine their operation and effect to equitable actions.2 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 abolished and swept away the legal distinctions between joint, joint and several, and several rights and liabilities. The influence and

1 Iowa, § 2553; Minnesota, § 37; California, § 388; Ohio, § 629; Nebraska, §§ 24, 27.

2 As an illustration of these views, see the opinion of S. L. Selden J. in Voorhis v. Child's Ex'ors, 17 N. Y. 354.

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 nothing 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, therefore, 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 applying 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 Assignability of Things in Action; The Effect of an Assignment of a Thing in Action upon the Defences to it; A Trustee of an Express 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 Instrument; 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 Parties that the two cannot be completely separated.

SECTION SECOND.

THE REAL 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, Dacota, North Carolina, Washington, and Montana. It was sometimes said that at the common law a thing 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 immediately 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 assignment was said to be equitable, and not legal; but this distinction 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 statutory provision

and perhaps the principal effect of this 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 assignors. It is not strictly correct to say that the provision itself renders any thing in action assignable, that it creates any attribute of assignability; but, for the purpose of defeating such possible 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

1 This provision only applies to "actions" as defined in the code, and not to special proceedings. The proceeding to enforce a mechanic's lien, in pursuance of certain special statutes in New York, is

not an action; and the original holder of the lien who had assigned it, is the proper party to institute the proceeding for the benefit of his assignee. Hallahan v. Herbert, 57 N. Y. 409.