-

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 discussed as to the particular language of the codes under consideration in the present section. After laying down the equity rule as to parties in the customary form adopted by several eminent judges, in which the necessity or propriety of their being joined is made to depend upon their interest in the "subject" of the suit,' he proceeds: 2 "The expression subject of suit' may 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 judgments that in the cases quoted below, Lord Eldon and Sir William Grant used the phrase in the first sense, and adds: "If the words subject of suit' were taken in that very extensive meaning 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 statement 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 necessary nor proper parties.3

§ 488. Upon 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

1 See Lord Redesdale, Plead. 164, 170; Lord Hardwicke in Poor v. Clarke, 2 Atk. 515; Lord Thurlow in Anon. 1 Ves. 29; Sir William Grant in Palk v. Clinton, 12 Ves 58; Wilkins v. Fry, 1 Meriv. 262;

Lord Eldon in Cockburn v. Thompson, 16
Ves. 325; Calvert on Parties, pp. 3, 4.
2 Calvert on Parties, p. 5.
3 Ibid. pp. 6, 7, 8.

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 interested in the question must be parties to a suit instituted in a court of equity." 1 He thus sums up the matter: "Not all concerned 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." 2

§ 489. This theory is open to a very plain criticism. Assuming that "subject of the suit" may be used in the two senses mentioned 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 "subject 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

1 Small v. Atwood, Younge, 458. The other dicta cited by Mr Calvert are Lord Loughborough in King v. Martin, 2 Ves. 643; Lord Eldon in Fenton v. Hughes, 7 Ves. 288; Sir T. Plumer in Whitworth v. Davis, 1 Ves. & B. 550; Sir John Leach in

Smith v. Snow, 3 Madd. R. 10; Lloyd v.
Lander, 5 Madd. R. 289; Lord Hardwicke
in Poore v. Clarke, 2 Atk. 515; Com. Dig.
Tit. Chan., E. 2.

2 Calvert, pp. 10, 11.

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 number 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 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 generally, 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 relation 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 parties, 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 capable 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 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 contracts. 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 personal, 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 $35 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 annuity. 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.1

§ 493. 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 permitted, 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 promise 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 Gridley v. Gridley, 24 N. Y. 130.

second averred that the defendant had wrongfully taken the goods of the plaintiff, had sold them and received their price, and demanded judgment for this sum so retained by him.1 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 implied promise, the pleading must show in some direct manner that 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.2 A complaint contained three counts. The first alleged a sale by the defendants of certain county warrants drawn in their favor as payees, and facts constituting an implied promise or guaranty that these instruments 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.3

§ 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,

Hawk v. Thorne, 54 Barb. 164; same, and a claim of the rents and profits Leach v. Leach, 2 N. Y. S. C. 657.

Booth v. Farmers' and Mech. Bank, 1 N. Y. S. C. 45.

Keller v. Hicks, 22 Cal. 457.

4 Vandevoort v. Gould, 36 N. Y. 639, 645; Livingston v. Tanner, 12 Barb. 481; Holmes v. Davis, 21 Barb. 265; 19 N. Y. 488; Tompkins v. White, 8 How. Pr. 520; Armstrong . Hinds, 8 Minn. 254, 256; Walker v. Mitchell, 18 B. Mon. 541; Burr v. Woodrow, 1 Bush (Ky.), 602; Sullivan v. Davis, 4 Cal. 291. A claim to recover land, with damages for withholding the

for its use, are distinct causes of action, and evidence to prove the latter is inadmissible under a complaint which does not contain such cause of action, but simply alleges the former. Larned v. Hudson, 57 N. Y. 151. It has been held that a claim to recover possession of one parcel of land cannot be joined with a similar claim in respect to another and distinct parcel. Holmes v. Williams, 16 Minn. 164, 169.

5 Ibid.