drawn from the judicial decisions when a general theory of interpretation was the subject of discussion; and one theory, when accepted, ought, beyond a doubt, to be carried out in all the minor details, in the work of creating all the practical rules for administering justice, if any consistent and symmetrical result is desired. But, unfortunately, in comparing the decided cases, and in endeavoring to deduce from them a body of practical rules, we shall find so much inconsistency and vacillation in the judgments of even the same tribunals, that we are sometimes forced to doubt whether any general principle of construction was ever intended to be adopted by the courts, whether they ever accepted any theory of interpretation, and proceeded to work from it as a foundation in constructing a system of procedure. In regard to the particular matter now under consideration, if we collect and compare the decisions which have been made in the different States, it will be difficult, if not impossible, to say, upon their authority, that any definite rule has been established determining the effect of a misjoinder of plaintiffs.

§ 211. It is certainly settled beyond a doubt that, in all equitable actions, and in all actions where, upon equitable principles, a coplaintiff may sometimes be added, not because he is jointly interested with the other, but because his presence as a party is considered necessary to a complete determination of the issues, as where a husband is sometimes added in an action brought by a wife touching her separate property, -the equitable rule applies in its full force, and a misjoinder of plaintiffs is not a defence to the suit; it is neither a ground of demurrer, nor can it be set up in the answer as a bar to the relief demanded in the complaint or petition. The name of the unnecessary plaintiff may be struck out by the court, upon motion; or, if the cause proceeds to trial, a judgment may be rendered in favor of the plaintiff entitled thereto, and the action dismissed as against the others. The

1 Ackley v. Tarbox, 31 N. Y. 564; Allen v. Buffalo, 38 N. Y. 280. Ackley v. Tarbox was an action by husband and wife to recover damages for the conversion of a chattel belonging to the wife. The pleadings showed that the suit was really in favor of the wife, and that the husband was added under a notion that he was a necessary party. The judgment for the plaintiffs was reversed by the

General Term of the Supreme Court, because of the misjoinder. The Court of Appeals held that he was an improper party, but that the judgment should not have been reversed on that account. “As soon as the objection was taken, it was the duty of the court to have stricken his name from the proceedings in the action. It can now be done, and the judgment stand as it ought,— a judgment for the

changes made by the codes themselves, and also by special statutes relating to the property rights of married women, have certainly extended this rule to many cases not strictly equitable, even to cases which could not have been maintained at all while the common law was in its integrity.

§ 212. There is another class of decisions, made in actions of a similar nature to those last mentioned, that is, actions strictly equitable, and those in which a plaintiff is added in pursuance of a supposed positive rule of practice, although no joint legal right is alleged, in which it has been held that, if the misjoinder of a plaintiff appears upon the face of the complaint or petition, the defendant may demur as against the party thus improperly joined, on the ground that the pleading does not state facts sufficient to constitute a cause of action in his favor; or, if no demurrer is interposed, the same objection may be raised at the trial, and the action dismissed as to him. If the misjoinder does not appear upon the face of the pleading, the defence must be set up in the answer. The principle of this class of decisions is the same as that involved in the cases described in the preceding paragraph. The actions in which this method of raising the objection of a misjoinder is permitted, may be equitable or may be legal; but, if the latter, they are not based upon a joint legal right alleged to be held by all the plaintiffs. In all of them the right of action is assumed to be possessed by one or more of the plaintiffs, who are the real parties in interest, and the other parties are added through some supposed requirement of form or of policy.

§ 213. We are finally brought to the case of an action strictly legal in its nature, brought by two or more plaintiffs in whose favor a joint right is averred as the ground of recovery. The courts of some States have distinctly asserted and applied the

wife." Although this action was nominally joint, because it demanded judgment for the plaintiffs, yet the right alleged was plainly several, and the case is not an authority on the question of joint legal rights averred in a complaint.

1 Palmer v. Davis, 28 N. Y. 242. Palmer and wife sued on an award made in her favor. The Court of Appeals held that the husband was not a proper plaintiff; that, as this appeared on the face of the complaint, the defendant might have demurred generally as to him; and that

the same objection could be raised on the trial, and the complaint dismissed as to him, but not as to both. No joint cause of action was here alleged, although, nominally, the action was joint. See also Willard v. Reas, 26 Wisc. 540, 544, which holds that, in an action by two or more plaintiffs, a general demurrer against all these plaintiffs, on the ground of a want of sufficient facts, is bad if a good cause of action is alleged in favor of one of them.

ancient common-law rule under these circumstances, notwithstanding the provisions of the codes, and notwithstanding even the liberal scheme of interpretation which had, as a general theory, been adopted by the same tribunals. When, in such an action, a joint right is averred as arising from contract or from the ownership of land or chattels, while in fact no joint right in all exists, but only a several right held by one or a joint one held by some, this error, according to the construction now stated, goes to the entire proceeding, and defeats the suit as against all the plaintiffs. If the error appears upon the face of the complaint or petition, the objection may be raised by a general demurrer interposed against all the plaintiffs, on the ground that facts sufficient to constitute a cause of action are not stated in the pleading; and, in the absence of a demurrer, the same objection may be taken at the trial by a motion for a nonsuit or for a dismissal of the action. Finally, if the error is not apparent on the face of the pleading, the defence may be set up in the answer, and is, perhaps, admissible under the general denial. This is plainly the original common-law doctrine, unaffected by the reform legisla tion, and it proceeds upon the assumption that the cause of action is a joint one, that this attribute of jointness is as essential to the maintenance of the alleged right as any other material fact, and that the inability to establish the particular averment is not a mere variance, but is a complete failure of proof. As

1 Bartges v. O'Neil, 13 Ohio St. 72; Masters v. Freeman, 17 Ohio St. 323; De Bolt v. Carter, 31 Ind. 355; Goodnight v. Goar, 30 Ind. 418; Berkshire v. Schultz, 25 Ind. 523; Lipperd v. Edwards, 39 Ind. 165; Estabrook v. Messersmith, 18 Wisc. 545; Frans v. Young, 24 Iowa, 375; Giraud v. Beach, 3 E. D. Smith, 337. Certain of these cases inferentially support the propositions contained in the text, by holding that a misjoinder of plaintiffs in such actions may be taken advantage of by a general demurrer, upon the ground that sufficient facts are not alleged; the others, however, sustain these propositions to their full extent. As the subject is one of great practical importance, I shall quote from these decisions at some length. Bartges v. O'Neil, 13 Ohio St. 72, was an action by a husband and wife to recover damages for deceit in the sale of lands purchased

from the defendant. The purchase price was paid by the husband, but the convey. ance was made to the wife. The petition alleged fraudulent representations, by which the plaintiffs were induced to engage in the transaction, and a judgment for the joint damages alleged to have been sustained by both was demanded. A demurrer for want of sufficient facts having been overruled, the cause went to trial. No representations were shown to have been made to the wife, nor did she participate in the negotiation and purchase, nor pay any of the price; the conveyance was simply made to her as the result of the bargain at the husband's request. It will be seen that the cause of action, as alleged, was strictly a joint one. The plaintiffs did not sue in their marital capacity; the case was the same as though any other person had taken the part in

an illustration: if the complaint should allege that the plaintiffs A. and B. were partners, and as such had sold and delivered to

the defendant certain goods, for a stipulated price, and should demand a judgment therefor, and on the trial it should appear that A. and B. were not partners as averred, and did not jointly sell and deliver the chattels to the defendant, but that in fact the same were sold and delivered by A. alone, B. having no interest in or connection with the transaction, in pursuance of the rule adopted in these decisions no judgment could be rendered for A. separately; the action would entirely fail as respects both the plaintiffs. It thus appears that, in at least three States, the courts have, in the most explicit manner, and in well-considered opinions, reaffirmed the ancient common-law doctrine in respect to legal actions brought by two or more plaintiffs jointly; and have held that the joint right must be proved as alleged, or the action must fail as to all the plaintiffs. In other States, it is merely said that a misjoinder is ground for a demurrer interposed to all the plaintiffs, for the cause that the complaint or petition does not state facts sufficient to constitute a cause of action.

§ 214. The question has been presented to the New York Court of Appeals, but has not been passed upon in such an explicit manner as necessarily to establish the rule for that State. In an action brought by two plaintiffs, G. and C., to recover damages for an alleged fraud, the action being in form joint, and the demand of judgment being for damages due to the plaintiffs jointly, the complaint was dismissed at the trial, because it appeared that the right of action was held by one of the plaintiffs alone. In respect to this ruling, the Commission of Appeal said: "Probably the court had the power in this action, if the claim had been made, to have awarded to C. his damages, giving judgment against the other plaintiff. But the court was not bound to do this, and committed no error in defeating the plain

no joint right in favor of any. Upon a general demurrer for want of sufficient facts, the doctrine of the last case was repeated, and the action was dismissed as to all the plaintiffs, although it was conceded that each had a valid claim, which he could have enforced in a separate suit. In De Bolt v. Carter, 31 Ind. 355, a relaxation of the doctrine was intimated. After repeating the rule laid down in the two preceding decisions, the court said: "The defect can only be cured by striking out the name of the plaintiff improperly

joined, or by so amending the complaint as to show a right of action in all the parties." But, in Lipperd v. Edwards, 39 Ind. 165, 170, the ancient rule was stated in all its severity. "It seems to be the law now, as it was before the code of civil practice, that, when two or more join in an action, the complaint must show a right of action in both or all of them; or it must be held insufficient, on a demurrer assigning for cause that it does not state facts sufficient to constitute a cause of action."