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 intentional. 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 subjectmatter 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 subjects, 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.3

§ 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,

1 Boos v. Gomber, 24 Wisc. 499. The title being in her, the possession would be hers if such possession were deemed necessary to the maintenance of the action. * Barrett v. Tewksbury, 18 Cal. 334;

Guiod v. Guiod, 14 Cal. 506; Cook v. Klink, 8 Cal. 347; Poole v. Gerrard, 6 Cal. 71.

8 McCormick v. Penn. Cent. R. R., 49 N. Y. 303, 317.

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 itself the land or chattel-in a real action, it is not an enlargement 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 system 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 personally, and not a judgment in rem against his property.

§ 246. The desertion of his wife and family by the husband does not increase her powers and capacities in reference to the bringing and maintaining of judicial proceedings, unless provision is made for such an emergency by express statute. Thus,

1 In Owen v. Owen, 22 Iowa, 270, the wife sued her husband to recover the value of certain United States bonds, her separate property, wrongfully taken by him and converted to his own use. The plaintiff had a verdict and judgment on the trial, but the Supreme Court declined to pass upon the question whether such an action was maintainable. In Davidson v. Smith, 20 Iowa, 466, a husband was permitted to recover against the administrator of his deceased wife the amount of certain money belonging to himself which she had unlawfully taken from his possession, and detained until her death, refusing to surrender or return it at his request.

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.2

$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 for ever settle all questions 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 against all the defendants on the record, they were enabled to adopt and enforce such practical rules as would render this principle operative and efficient. In disclosing these rules, and in explaining their application, 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 actions under the codes has sometimes been doubted; it is universally 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 ascertaining 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 wherever 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 subsequent to the great reform introduced into so many of the States, 2 See supra, § 236.

1 Green v. Lyndes, 12 Wisc. 404.

and the result will express the law as it now exists in those States.1

§ 248. It is impossible to lay down with precision many rules in reference to plaintiffs, because equity does not particularly concern 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 person 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.2 The result is, that the positive rules as announced by courts and as gathered from a comparison of decisions, 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 requirement is not peremptory, these doctrines must be discussed and fully stated. The persons that can be made coplaintiffs in an equity suit may be roughly separated into two general classes: (1) Those whose rights, claims, and interests, as against the defendant, 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 require ; but the requirement is by no means peremptory, and in many and in even the great majority of instances, the equity principle

1 In this subdivision I have drawn very largely upon the fourth American edition of Daniell's Chancery Pleadings, and the learned notes of Mr. Perkins, the

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 controversy, whose interests and claims, although antagonistic to the defendant, and to that extent, 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 relief. Although the individuals or the class which have been thus vaguely described may be joined as coplaintiffs 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 relation 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 subjectmatter of the controversy that, in order to prevent further litigation by them, they must be included in and bound by the present decree; in other words, all those persons who are so related to the controversy and its subject-matter, that, unless thus concluded by the decree, they might set up some future claim, and commence some future litigation growing out of or connected with the same subject-matter, against the defendant who is prosecuted 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 plaintiff;" and there is also some person or group of persons against whom all the real demands are made, and from whom the substantial remedy sought by the action is asked, and him we denominate "the defendant." In addition to these two contestants, there are the other individuals described in the foregoing