M.

-ac-

MARRIED women, actions by, 234-246 (see PLAINTIFFS, Joinder of);
tions against, 318–328 (see Defendants, JoinDER OF).
MECHANICS' liens, defendants in actions to enforce, 382.
MISJOINDER, of plaintiffs, 209-216 (see PLAINTIFFS, JOINDER OF) ; — of de-
fendants, 289-293 (see DEFENDants, Joinder or); — of causes of action,
442-451 (see JOINDER OF CAUSES OF ACTION).

MITIGATION, defences in, 693-696.

-

MORTGAGES, defendants in actions to foreclose, 333-345 (see DEFENDANTS,
JOINDER OF).

MULTIFARIOUSNESS discussed and defined, 486.

N.

NEGATIVE pregnant, denials in form of, 618-623 (see DENIALS).
NEGLIGENCE, counterclaim for, 785, 786.

NEGOTIABLE paper, suits by assignees of, 128-131.

NEW MATTER, defences of, 672, 673,

-

-

-

686-714; how pleaded, 687–691;—
general nature of, 690-692;-defences in mitigation, how pleaded, 693–
696; and in abatement, 697, 698; - particular defences held to be new
⚫ matter, 699-714; — payment, 700, 701; — arbitrament and award, and former
judgment, 702; - in actions to recover possession of chattels, 703; — in ac-
tions for torts, 704, 705; — concerning lands, 706; — upon contracts, 707–
710; - joinder and capacity of parties, 711;- miscellaneous defences,
license, estoppel, accord and satisfaction, discharge in bankruptcy, and cer-
tain statutory defences, 712; - statute of limitations, when to be pleaded,
and when taken advantage of by demurrer, 713, 714.
NEW PARTIES, bringing in, 411-422; - provisions of codes, 411, 412; —
three proceedings provided for, 414-417; - bringing in additional parties.
when necessary to a complete determination of the controversy, 418–422; –
when this can be done, 419; - when provisions of the codes are peremptory,
419; when discretionary, 420; - examples, 421; - importance of these
provisions, 422.

-

NONJOINDER, of plaintiffs, 206, 207; — of defendants, 287, 288.
NUISANCE, counterclaim for, 785, 786.

0.

OFFICERS, public, suits by, 179.

OWNERS, of land, plaintiffs, in actions by, 218-220;- defendants, in actions
against, 294-296; - do. of chattels, plaintiffs in actions by, 221-225 ; — ac-
tions against, 297, 298.

trasted, 112; - provisions of the codes, 113-121; - general theory of these

PARTIES- continued.

-

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.) ; — persons sev-
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.

220;

-

-

-

Joinder of plaintiffs in legal actions, 218-233; - by owners of land, 218-
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.

238;

-

-

Actions by or between husband or wife, 234-246; - statutory provisions,
234-236; character and effect thereof, 237;- when permissive only,
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-.

PLAINTIFFS - continued.

-

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, 556–564.

-

Q.

QUIET TITLE, defendants in actions to, 369-372.

R.

REAL PARTY in interest to be the plaintiff, 124-143; — assignment of a
thing in action at the common law, 124; assignees to sue in their own
names, 125-138; when the assignment is absolute, 126;- when it is equi-
table, 127;— when it is of negotiable paper, 128-131; — when it is condi-
tional or partial, 132, 137; —particular cases of, 133, 134;— assignor to be
joined in certain States, 135; — assignment pending the action, 136; — suing
"to the use of" another, 138; the person to whom a promise is made for
the benefit of another may sue, 139; — equitable owner of a note or bill, 140;
— other instances, 141;-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; — rise and
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-

-

----

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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, 388-101 (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.

S.

-

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; — provisions of the
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;

T.

defendants in actions by, 386.

THINGS IN ACTION, assignability of, 144-153 (see ASSIGNABILITY, &c.);
defences to suits by assignees of, 151-170 (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, 781-791.

TOWNS, actions by, 179.

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.

V.

VARIANCE between proofs and allegations, 553-564 (see PLEADING, &c.).

W.

WIFE, actions by, 234-246 (see PLAINTIFFS, JOINDER OF); -actions against,
318-328 (see DEFENDANTS, JOinder of).