provisions, 122; - real party in interest to be plaintiff, 124-143 (see REAL
PARTY IN INTEREST); — assignability of things in action, 144-153 (see As-
SIGNABILITY, &c.) ; — effect of assignment of a thing in action
upon the
defences thereto, 154-170 (see DEFENCES TO A THING IN ACTION, &c.); -
when the trustee of an express trust may sue, 171-182 (see TRUSTEE OF AN
EXPRESS TRUST); — who may be joined as plaintiffs, 183-270 (see PLAIN-
TIFFS, JOINDER OF); — who may be joined as defendants, 271-387 (see DE-
FENDANTS, JOINDER OF); when one may sue or be sued on behalf of all
interested, 388–401 (see ACTION BY OR AGAINST One, &c.);·
erally liable on the same instrument, 402-410 (see SEVERAL LIABILITY ON
THE SAME INSTRUMENT); -- bringing in new parties and intervening, 411-
431 (see NEW PARTIES AND INTERVENTION); - parties in their relations
with the counterclaim, 749-762 (see COUNTERCLAIM).
PARTITION, defendants in action for, 373-377.
PARTNERS, legal actions between, 104;
surviving, actions by, 224.
PARTNERSHIP matters, defendants in actions concerning, 378.
PAYMENT, defence of when new matter, when not, 700, 701.
PETITION (see COMPLAINT).
PLAINTIFF, to be the real party in interest, 124-143 (see REAL PARTY IN
INTEREST); — action by one as a representative for all others, 388-401 (see
ACTION BY OR AGAINST ONE, &c.); — pleading by, 432-580 (see COм-
PLAINT).
PLAINTIFFS, joinder of, 183–270; — provisions of codes, 183;-
common-law
rules, 184-193;-joint and several rights described, 184; - rights arising
from contract, 185, 186; from ownership of land, 187;- survivorship,
188; rights arising from tort, 189, 190; — husband and wife, 191;— gen-
eral theory of common law concerning joint and several rights, 192, 193.
Principles of the reformed procedure concerning parties, 194-200; — the
equitable theory adopted, 194-200; -judicial construction, 201-205.
Manner of raising questions as to proper plaintiffs, 206-216;-nonjoin-
der of, 206, 207; want of legal capacity to sue, 208; -misjoinder, how
objected to, and effect of, 209-216.
Joinder of plaintiffs in legal actions, 218-233; - by owners of land, 218-
220; — do. of chattels, 221–225; — do. by survivors, 224; — by holders of
joint rights arising from contract, 226-228; - do. of several rights, 229; -
by holders of joint rights arising from personal torts, 230; - do. of several
rights, 231; in special actions, 232, 233.
Actions by or between husband or wife, 234-246;-statutory provisions,
234-236;-character and effect thereof, 237;- when permissive only,
238; rules established in New York and States having similar statutes,
240, 243;-in actions for tort to wife's person, 241, 242; - do. to her prop-
erty, 244; - in actions by wife against husband for torts, 245;-in suits by
wife when husband has deserted her, 246.
Equitable actions, 247-270;-theory of parties in equity, 247-249; -
owner of legal estate to be joined in actions by owner of the equitable estate,
250-253; - by assignees, 251; - by executors, &c., 252; - all holders of
equitable rights, &c., to be joined, 254-264; — those having joint rights or
interests, 254, 255; -in actions to foreclose or to redeem, 255, 256;- for
an accounting, 257;-by residuary legatees, &c., 258;- exceptions in ac-
tions for an accounting, 259;-actions by trustees, 260; -by executors, &c.,
261; - by assignees in bankruptcy, &c., 261; - by holders of future estates,
262; in actions for a specific performance, 263;- by heirs-at-law or de-
visees, 264;-holders of antagonistic interests not to be joined, 265;
holders of separate but not antagonistic interests may be joined, 266–269;
creditors, 266-268; - beneficiaries, 268; — other holders of distinct interests,
269;-holders of distinct liens, &c., 270.
PLEADING, general principles of, 506-573;-three types of, prior to the codes,
506-512;- by allegation, 506;-in equity, 507; common law, 508–512;
its technicality, 509; — its requisites in different actions, 510; — nature
of allegations in, 511;— action of assumpsit explained, 512.
Principles of the reformed pleading, 513–573; — these principles found in
the codes alone, 514, 515; - fundamental doctrines, 516-544; - apply to
certain answers, 516; material facts should be alleged as they existed, not
their legal aspect, and not evidence of them, 517; -"cause of action" de-
fined, 518-525 ; · distinction between legal and equitable causes of action,
521, 522;— what facts constitute the cause of action, 523–525 ; these mate-
rial facts to be alleged, and not evidence of them, 526–528; in legal actions,
526; in equitable actions, 527, 528; - facts to be alleged as they actually
existed, not their legal meaning, 529; -judicial decisions illustrating these
doctrines, 530-536.
Actions on implied contract, whether a promise should be alleged in, 538–
541;-
use of the common counts, 542-544; -use of in actions on express
contracts, 543; criticism of this rule, 544; — pleadings to be liberally con-
strued, 545-547; insufficient, &c., allegations, how objected to, 548–550;
redundant and irrelevant allegations, how objected to, 551, 552.
Proofs must correspond with the allegations, 553–564; immaterial vari-
ance, material do., and total failure of proof, difference between, 553, 554;
cases illustrating variances, 555;— do. a total failure of proof, 556, 557;
doctrine applied to actions ex contractu and those ex delicto, 558–564;-
amendments of pleadings, 565, 566; — election between actions ex contractu
and those ex delicto, 567-573;- doctrine of election discussed, 567, 568, 571;
cases in which it has been permitted, 569-571; —how plaintiff should indi-
cate his election, 572, 573.
Pleading on part of the plaintiff, 432-580 (see COMPLAINT); — on part
of defendant (see ANSWER, DENIALS, GENERAL DENIAL, NEW MATTER, and
COUNTERCLAIM) ; — pleading new matter, 687-691 (see NEW Matter).
PRAYER for relief, effect of, 580.
PROCEDURE, reformed American, generally described, 28-41.
PROMISE, allegation of, in actions on implied contracts, 538–541.
PROOFS, allegations and, must correspond, 553-564; — total failure of, 556–364.
QUIET TITLE, defendants in actions to, 369–372.
REAL PARTY in interest to be the plaintiff, 124-143;
thing in action at the common law, 124; assignees to
names, 125-138; - when the assignment is absolute, 126;
table, 127;- when it is of negotiable paper, 128-131;
assignment of a
sue in their own
tional or partial, 132, 137;—particular cases of, 133, 134;- assignor to be
joined in certain States, 135; assignment pending the action, 136;-suing
the benefit of another may sue, 139; — equitable owner of a note or bill, 140;
suits by tax-payers, &c., 142;— suits by grantees
of land in name of the grantors, 143.
RECOUPMENT of damages, 731, 732.
REDEEM, plaintiffs in actions to, 255, 256; defendants do., 387.
REDUNDANT allegations, 551, 552.
REFORMED procedure, the, generally described, 28-41.
RELIEF, prayer for, effect of, 580.
REMEDIES, defined, 1-4; — prior to the modern reforms, 5-27; -office and
function of, in the development of the law, 6-24; - arbitrary nature of early
forms, 6; three stages of progress, by use of fictions, by equity, and by
legislation, 7-10; workings of this principle in the Roman law, 11-14; do.
in the English law, 15-24; — early forms of legal actions, 16-21;
progress of equity, 22-24;- classification of remedies under the former sys-
tem, 25-27; - do. under the reformed system, 28-41; the legislation, na-
ture of, 28-30; - the civil action, general nature of, 31-41; — union of legal
and equitable remedies, 76-86 (see CIVIL ACTION).
REPRESENTATIVE parties, actions by or against, 388-401 (see ACTION BY
OR AGAINST ONE, &c.).
RESCISSION, defendants in actions for, 379–381.
RESIDUARY legatees, equitable actions by, 258.
RIGHTS, legal and equitable, union of, 76–86 (see CIVIL ACTION).
ROMAN LAW, system of remedies in, 11-14.
SET-OFF, to a thing in action when assigned, 154-170 (see DEFENCES TO A
THING IN ACTION, &c.) ; — in the former procedure, 731, 732; — under the
codes, 795-803 (see COUNTERCLAIM).
SEVERAL CONTRACTS, plaintiffs in actions on, 229; - defendants do., 306.
SEVERAL JUDGMENTS, when proper in joint actions, 751-758.
SEVERAL LIABILITY on the same instrument, 402-410;
codes, 402, 403; - first class of provisions discussed, effect of, 404–406 ; ·
form of judgment in such cases, 407; — provisions apply to joint and several
liability, 408; cases of guarantor joined with the principal debtor, 409, 410.
SEVERAL TORTS, plaintiffs in actions for, 231; — defendants do., 307-314.
SPECIFIC DENIALS, nature and object of, issues formed by, 614-616; -
mode of alleging separate specific denials, 717-720.
SPECIFIC PERFORMANCE, plaintiffs in actions for, 263; — defendants do.,
366-368.
STATUTE, persons expressly authorized by, to sue, 180; - of limitations, when
pleaded, and when raised by demurrer, 713, 714.
STATUTORY defences, certain, are new matter, 712.
STOCKHOLDERS, defendants in actions against, 360–365.
SUBJECT OF ACTION, meaning of, determined, 465-471, 475; - counter-
claims connected with, 769-776 (see COUNTERCLAIM).
SURVIVORSHIP, among joint creditors, 183;- among joint debtors, 302-
304; of things in action, 147.
TAX-PAYERS, actions by, 142; - defendants in actions by, 386.
THINGS IN ACTION, assignability of, 144-153 (see ASSIGNABILITY,
defences to suits by assignees of, 154-170 (see DEFENCES TO THINGS IN
ACTION, &c.).
TITLE, actions to quiet, defendants in, 369-372.
TORTS, joint and several rights arising from, 189, 190; plaintiffs in actions
for, 230, 231; — defendants do., 307-314;-actions for, distinguished from
those on contract, 558-564; - election between actions for tort and on con-
tract, 567-573;-defences of new matter in actions for, 704, 705; - counter-
claims for, 784-791.
TRANSACTION, meaning of, 465-474; - judicial interpretation, 465–471;
true interpretation, 472-474; counterclaims arising out of, &c., 769–
776';- cases in which a counterclaim arises out of the transaction set forth
by the plaintiff, &c., 781-792.
TRESPASSES, counterclaims for, 785, 786.
TRUSTEE OF AN EXPRESS TRUST, when he may sue, 171-182;-pro-
visions of the codes, 171; - meaning of the term, 172-174; — judicial inter-
pretation, 173, 174;-examples, 175-178; - persons "with whom, &c., a
contract is made for the benefit of others," 175-177; - other instances, 178;
-public officers, 179; — counties, 179; - towns, 179; -persons expressly
authorized by statute to sue, 180; -executors, &c., 181;-guardians of in-
fants, lunatics, &c., 182.
TRUSTEES, equitable actions by, 260.
TRUSTS, defendants in actions concerning, 356–359.
VARIANCE between proofs and allegations, 553-564 (see PLEADING, &c.).
WIFE, actions by, 234-246 (see PLAINTIFFS, JOINDER OF); -actions against,
318-328 (see DEFENDANTS, JOinder of).
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