Other instances where the action can be brought at common law in the name of the agent are given in the note. It is thus seen that the exception under consideration to the requirement that the acing goods under a del credere commission is a quasi-owner. Neither the principal nor purchaser ordinarily thinks of looking beyond him. Morris v. Cleasby, 1 Maule & S. 576, 580; Sadler v. Leigh, 4 Camp. 195. An auctioneer sold the goods on the premises of his principal; the purchaser, by a trick, got them away without payment. The auctioneer paid the price to his principal and sued the purchaser in his own name for goods sold, and the action was held to lie. Lord Loughborough gave the reason that the auctioneer has the possession coupled with an interest, in goods which he is employed to sell-not a bare custody, like a servant or shopman.' Heath, J., added, if they should be stolen, he might bring trespass. Wilson, J., added another ground, that of estoppel; the defendant, having bought of the plaintiff having custody, should not gainsay his right to recover as vendor. Williams v. Millington, 1 H. Bl. 81. See, also, Coppin v. Walker, 2 Marsh. 497, 7 Taunt. 237. Similar reasons will be found to run through those cases where actions have been sustained by the various bailees I have mentioned. A master has a special property in a vessel, and may, therefore, declare for freight of goods as carried in his vessel, although he be not the owner. Shields v. Davis, 6 Taunt. 65. Another instance is Atkyns v. Amber, 2 Esp. 493. The plaintiff was there a pledgee of the goods which he had sold as such, and was suing for the price. See Brown v. Hodgson, 4 Taunt. 189, as to carrier. A broker in a matter of insurance, especially if he act under a del credere commission, is also regarded as principal, and may sue or be sued in his own name. Grove v. Dubois, 1 Term R. 112. This case is treated by a learned writer as an exception. implied from the course of trade. Ham. Parties, 11. If they have no commission del credere, they may maintain an action in respect to their lien, if the contract be made in their own names, though on account of their principals. Parker v. Beasley, 2 Maule & S. 423. In this case they claimed by virtue of policy running to them by name, on account of their principals. Bailey, J., said that 'by suffering their names to be inserted in the policies, the underwriter has agreed that they shall be considered as principals, if they have an interest.'" In this case a wharfinger had sued in his own name, but was held to be a mere agent, collecting for the owners. In White v. Chouteau, 10 Barb. 202, it was held that an ordinary merchandise broker who does business in the name of his principal has no right to sue in his own name; the right to do so is extended to those only who sell under a del credere commission, or to brokers or factors who have made advances upon the goods sold by them, or to auctioneers, or persons having some special property or interest in the subject-matter of the agreement; and in Dows v. Cobb, 12 Barb. 310, the consignee or indorsee of a bill of lading was not allowed thus to sue; the action should be by the shipper, or, if he be an agent merely, by the owner.

tion be brought in the name of the real party in interest covers a large class of cases where the greatest confusion would arise were the rule to be absolute. Without the limitation it might be doubted whether the real owner should not be required to bring the action upon all contracts made on his account and in his interest notwithstanding their complication and that of their subject-matter with other interests and notwithstanding the contract was madein the name of the agent. To remove this doubt we have the limitation under consideration, which is intended to preserve the common-law right in this class of cases as well as the one named in the preceding section.

94

§ 60. 4. By Persons expressly authorized by Statute.

No attempt will be made to enumerate the classes of persons authorized by statute to sue in their own name, although for the benefit of others, nor to specify the numerous cases where the action is required to be in the name of the state, or some municipal body. The pleader will, of necessity, consult the statute of his own state, and he will find that provision is made as to who should be the obligee in bonds of public officers; and in bonds of those who are placed in fiduciary relations by public authorities-as, executors, administrators, guardians, etc.; and sometimes persons are designated who may sue on behalf of voluntary associations and joint-stock companies.

§ 61. Joinder of Plaintiffs-The general Rule. The statutory provisions in regard to the joinder of plaintiffs are (1) permissive and (2) imperative. The following is the first: "All * In Grinnell v. Schmidt, 2 Sandf. 706, which arose under the Code, but before the addition of the clause regarding those in whose names contracts are made for the benefit of others, the court labored to bring the relation of commercial agents and factors within the category of trustees of an express trust, evidently embarrassed with the great inconvenience of no longer permitting this class of agents to sue in their own name. [Kelly v. Thuey, 102 Mo. 522, 15 S. W. 62. Where a contract not under seal is made with an agent in his own name, for an undisclosed principal, whether he describes himself as agent or not, either the agent or principal may sue. Ludwig v. Gillespie, 105 N. Y. 653, 11 N. E. 835; Considerant v. Brisbane, 22 N. Y. 389.]

persons having an interest in the subject of the action and in obtaining the relief demanded, may join as plaintiffs, except as otherwise provided," 95 etc. This provision is followed by [the second], to wit, that "the parties 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 defendant, the reason thereof being stated in the complaint" (or petition). These two provisions are familiar to equity pleaders. But though drawn from equity practice, it must not be hence inferred that they apply only to actions for equitable relief; for, as

97

95 [These rules are substantially the statutory provisions in all the code states, which will be seen from the following references: Code Civ. Proc. N. Y. 88 446-448; Rev. St. Ohio, §§ 5005-5007; Code Civ. Proc. Cal. §§ 378-382; Rev. St. Ind. §§ 262, 269; Code Iowa, §§ 3750-3753; Rev. St. Wis. §§ 2602-2604; Gen. St. Kan. pars. 4112-4114; Consol. St. Neb. §§ 4573-4575; Code Civ. Proc. Colo. 88 10-12; Gen. St. Conn. §§ 883, 884; Rev. St. Mo. § 1994; Rev. St. Wyo. §§ 2394-2306; Code Wash. § 143; Code N. C. § 185; Code Civ. Proc. S. C. §§ 138-140; Code Or. §§ 384, 385; Comp. Laws N. D. §§ 4877-4879; Comp. Laws S. D. §§ 4877-4879; Mansf. Dig. Ark. § 4941; Comp. Laws Utah, §§ 3180-3184; Code Ky. § 34.]

96 Who are United in Interest''?

[1st. Where a promise or covenant is made with two or more persons the presumption is that they are united in interest, and must join in the action. There is no presumption that their interest is several, unless words separating their interest are used. The rights of the promisees or covenantees are always either joint or several. They are never joint and several. Liabilities may be joint and several. The promise or covenant may be joint, and yet create but a several interest in fact, when the action will be several. Slingsby's Case, 5 Coke, 18b; Hinkle v. Davenport, 38 Iowa, 355; Gould v. Gould, 6 Wend. 263.

[2d. Where two or more persons are injured in their joint rights or property or reputation it is not necessary that their interests should be equal, as it was at common law. The rule requiring those who are united in interest to join will not permit those to join whose separate property, for instance, is injured in the same way. Tate v. Ohio & M. R. Co., 10 Ind. 174; Heagy v. Black, 90 Ind. 534. One of the best methods of determining whether or not the interests are united is to determine whether the same evidence of injury affects all parties to the litigation.]

97 See same references in code section immediately or soon following. Section 11 of the Connecticut Practice Act seems to be designed to embody both these rules.

we have seen, and shall all along see, the chief changes made by the Code consist in applying to pleadings in all actions rules otherwise recognized in courts of equity.98

The first clause in the provision secondly quoted, to wit, that parties who are united in interest—that is, those who have the same or a joint interest-must be joined as plaintiffs, or defendants, is a rule in all courts; but if one or more of those who have joint rights should refuse their consent to be joined as plaintiffs, there is no remedy at common law. Nor, at common law, can parties having only an interest in the subject of the action and in the remedy be united as plaintiffs, unless that interest be joint.""

I recognize these rules as now made universal wherever, from the nature of the grievance or of the relief which is sought, they are applicable, and without regard to the former classification of actions. Yet from the fact that they are treated by one or two courts as only pertaining to proceedings still called equitable, and that they are seldom in fact appealed to as having made any change in respect to mere money demands, I will dismiss their further consideration, and will again speak of them in connection with other so-called equity rules.100

§ 62. Joinder of Plaintiffs at Common-law.

As stated in the last section, the requirement to unite as plaintiffs or defendants all who are united in interest is imperative, and this rule embraces the one recognized in common-law pleadings, that joint obligees and those who would enforce a joint right must. sue jointly.101 Unless modified by that part of the section au

98 Kentucky, Arkansas, Iowa and Oregon preserve the distinction between actions at law and suits in equity; and in Oregon the provisions quoted in the text are expressly applied to equitable actions only. It may be necessary in those states, especially in Oregon, to modify somewhat the view taken in this section, and in chapter 5, concerning parties plaintiff in equitable actions.

99 Equitable and Legal Remedies.

[At common law an action for equitable and legal remedies could not be joined. Chit. Pl. 1, note a; Id. 2, and note 2. But under the Code these actions may be joined.]

100 Post, c. 5, §§ 73-S0.

101 1 Chit. PL. 8, 9; Henry v. Mt. Pleasant Tp. 70 Mo. 500.

thorizing one who has a joint right to make those defendants who are united with him in interest but who refuse to unite with him in the action, the rule remains as before the adoption of the Code; and whether it is so modified will be hereinafter considered.102 The scope of this requirement to thus unite as plaintiffs or defendants is given as follows: "We apprehend this union of interest refers to such cases as joint tenants, co-trustees, partners, joint owners, or joint contractors simply, where, in fact, a separate judgment in favor of one of them would not be proper in the case stated in the complaint. On a demurrer to the complaint, we apprehend that the test of unity of interest intended in the 119th section [of the Code of Procedure] (section 448, Code Civ. Proc. N. Y.) is that joint connection with, or relation to, the subject-matter, which, by the established practice of the common law courts will preclude a separate action." 103

In the history of our jurisprudence we find that those who had joint rights as joint obligees were treated, with reference to their right, as were joint tenants in the realty. There was no several interest; each one controlled the whole, and the right, being single, survived not to the personal representative of any deceased coobligee, but to the survivors and the representative of the last survivor. There being no several interest, the whole right must be vindicated at once, and this could not be done without the presence, and only on the request, of all interested in that right-that is, all the living joint obligees. Although one of the claimants or obligees, has, in theory, a right to the whole, yet every other claimant has the same right. A judgment in favor of one for the whole claim would deprive the others of their right; a judgment for a part would be inconsistent with the idea of a joint right; hence all must recover, and jointly, or none. The adjustment among themselves required a proceeding with which the courts of law had nothing to do; they recognized the joint interest as one interest, with survivorship and other incidents of joint tenancies in real property.104 As, in legal progress, the individual interest of each obligee

102 Chapter 5, §§ 77–80.

103 Hoffman, J., in Jones v. Felch, 3 Bosw. 63.

104 Littleton (section 282) in speaking of survivorships in joint tenancies, says: "In the same manner it is of debts and duties, etc., for if an obliga