statutes which provide for the appointment of guardians or committees over the property of lunatics, confirmed drunkards, and other such persons not sui juris, generally confer upon them the same powers that are given to the general guardians of infants, and a similar rule should therefore prevail in reference to their prosecution of actions. Although there is some conflict in the decided cases, yet, as these guardians or committees do not acquire any estate or interest in the property subjected to their control, but only a power of possession and management, the correct doctrine upon principle would seem to be that they cannot maintain actions concerning it in their own names, unless expressly authorized to do so by statute; other actions may be brought by them.1

SECTION FIFTH.

WHO MAY BE JOINED AS PLAINTIFFS.

§ 111. *183. Statutory Provisions. The following are the provisions relating to the joinder of parties plaintiff in one action found in the various State codes, and it will be seen that there is an absolute identity of language in all the legislation upon this subject. "All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined

error, as the suit should have been prosecuted in the name of the original plaintiff, by J. D., his guardian. Dennison v. Willcut (1894), Idaho, 35 Pac. 698: "The guardian of a minor is not permitted to bring suit in his own name for money or property belonging to the ward, and which he has a right to the possession of as such guardian, but must bring suit as guardian."

Plympton v. Hall (1893), 55 Minn. 22, 56 N. W. 351: The suit instituted in behalf of a lunatic should be in the name of the lunatic, but brought by his guardian or next friend. Row v. Row (1895), 53 O. St. 249, 41 N. E. 239: An action to recover property belonging to an imbecile must be brought by guardian and not by next friend. R. S. § 4998. How ard v. Singleton (1893), 94 Ky. 336, 22 S. W. 337: In an action by a guardian to sell his ward's real estate owned jointly

with another, the ward is not a necessary party.]

1 King v. Cutts, 24 Wis. 625; McKillip v. McKillip, 8 Barb. 552. But, per contra, see Person v. Warren, 14 Barb. 488, which expressly holds that the committee is a "trustee of an express trust" within the meaning of the code. The whole subject was discussed and determined in the very late case of Fields v. Fowler, 4 N. Y. Sup. Ct. 598. The action was brought by the committee of the person and estate of a lunatic to set aside the sale of a farm made by defendant to the lunatic, to cancel the satisfaction of a mortgage which had been executed by him, and also a check which he had given on such sale. The action was held to be properly brought by the committee. E. Darwin Smith J., in giving the opinion of the court, says: "The rule undoubtedly was, and still is, at law, where the action is

as plaintiffs, except as otherwise provided in this title."

This is the important section; but the following one somewhat enlarges its scope and effect in certain cases: "Of the parties to the action, those 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 a defendant, the reason thereof being stated in the complaint." 2 The particular statutory rules relating to married women as parties, and prescribing when wives may sue alone. or when husbands must be joined, will be stated in a subsequent portion of this section. Many of these special enactments are not found in the codes of procedure, but in separate and independent legislation.

§ 112. *195. Scope of Statutory Provisions. The Provisions respecting Plaintiffs Compared with those respecting Defendants. Apply to Legal as well as Equitable Actions. It must be conceded at once that there is no repeal or modification of the

brought to assert the title of the lunatic to real and personal property, it must be brought in his name, as held in McKillip v. McKillip, 8 Barb. 552." He cites the laws of 1845, ch. 112, which authorize the committee to sue for any debt, claim, or demand transferred to them, or to the possession and control of which they are entitled; also Gorham v. Gorham, 3 Barb. Ch. 32; Ortley v. Messere, 7 Johns. Ch. 139, and § 111 of the code, and reaches the conclusion that the equity rule as to parties is controlling in actions of this kind. The decision in Person v. Warren, 14 Barb. 488, is expressly approved and followed. S. P. Bearss v. Montgomery,

46 Ind. 544.

1 New York, § 117 (446); Ohio, § 34; Kansas, § 35; California, §§ 378, 381; Iowa, § 2545; South Carolina, § 140; Nevada, § 12; Oregon, § 380, but limited to equitable actions; North Carolina, § 60; [Wisconsin, St., 1898, § 2602; Utah, Rev. St., 1898, § 2913; North Dakota, Rev. Codes, 1899, § 5229; South Dakota, Ann. St., 1901, § 6077; Oklahoma, St., 1893, § 3907; Washington, Bal. Code, § 4833, in somewhat different form; Montana, § 580; Idaho, Code Civ. Pro., 1901, § 3166; Wyoming, Rev. St., 1899, § 3479; Colorado, § 10; Arkansas, Sand. & Hill's Dig.,

§ 5629; Connecticut, Gen. St., 1902, § 617; Indiana, Burns' St., 1901, § 263; Kentucky, § 22; Missouri, Rev. St., 1899, § 542; Nebraska, § 40.]

2 New York, § 119 (448); California, § 382; South Carolina, § 142; Oregon, § 381, but limited to equity actions; Nevada, § 14; Ohio, § 36; Kansas, § 37; Iowa, § 2548; North Carolina, § 62; [Utah, Rev. St., 1898, § 2917; North Dakota, Rev. Codes, 1899, § 5232; South Dakota, Ann. St., 1901, § 6079; Arizona, Rev. St., 1901, § 1313; Montana, § 584; Idaho, Code Civ. Pro., 1901, § 3170; Colorado, § 12; Indiana, Burns' St., 1901, 270; Wisconsin, St., 1898, § 2604; Okla homa, St., 1893, § 3909; Washington, Bal. Code, § 4833; Wyoming, Rev. St, 1899. § 3481: Connecticut, Gen. St., 1902, § 617; Nebraska, § 42; Arkansas, Sand. & Hill's Dig., § 5631; Kentucky, § 24; Missouri, Rev. St., 1899, § 544.]

[The code provision requiring the rea son to be given for making a person defendant who should properly be a plaintiff, requires the reason for not joining him, that is, his refusal, to be stated, and not his reason for such refusal: Union Pac. Ry. Co. v. Vincent (1899), 58 Neb. 171, 78 N. W. 457.]

common-law rules in detail; the requirements of the old law as to joint and several rights, and the union or severance of the parties holding such rights, are not in any express manner referred to. It should also be carefully observed - and the fact is one of great practical importance that the provisions in the various codes relating to parties plaintiff are not so full, minute, and express as those relating to parties defendant. Even in those State codes where the common-law distinctions between joint, joint and several, and several liabilities are utterly abolished, and the practical requirements as to the union or severance of parties defendant based upon them are wholly swept away, there is no corresponding express legislation as to the distinctions between joint and several rights and the union or severance of plaintiffs. This difference in the mode of treatment may be made the ground-and has been by many judges of inferring that the legislature intended to leave the ancient legal doctrines as to plaintiffs untouched, and to confine its work of reform to the case of defendants. The legislative intent, therefore, whatever it may be, must be found in the few general provisions quoted at the commencement of the present section, and in the subsequent provisions which regulate the rendition of judgments, so far as the same depends upon or is connected with the parties to an action. Referring to these provisions, it is plain that their language is general, inclusive, without exception, and applying alike to all kinds and classes of actions. Whatever doctrines in reference to parties plaintiff the legislature has adopted, whatever regulations it has established, its intention, as shown by the language of all the codes but one or two, is to apply them equally to legal and to equitable actions. No exception being made nor even suggested, the courts cannot, unless by an act of positive legislation, by an act of direct usurpation, create an exception, and say that these general terms were intended to apply to equitable suits alone, while legal actions were intended to be left outside of their scope and effect.

§ 113. 196. The Statute in Effect an Enactment of the Equity Doctrine. Practical Question herein. These statutory provisions themselves are confessedly an enactment, with hardly a verbal change, of the general principles long ago established by courts of equity for the regulation of the parties plaintiff in suits pending before them. The legislature has, therefore, in a very brief

but comprehensive form, adopted the equitable doctrine, and has applied it to the civil action required to be used in the enforcement of all rights and the pursuit of all remedies, whether legal or equitable. This proposition cannot be denied, without denying to the language of the statute its plain meaning and ordinary significance and force. The practical question, then, arises at once, How far is this equitable doctrine inconsistent with the positive rules as to parties plaintiff in legal actions, long established as a part of the common-law procedure? To what extent does it, as thus generally stated, necessarily abrogate or modify these special rules? That some change is wrought, if we adhere to the simple language, is very manifest. For example, the common law required that all partners, or other joint contractors, should unite as plaintiffs, and admitted no ordinary exception or excuse for the non-joinder. The new procedure, after requiring, as did the common law, that all those parties "united in interest must be joined as plaintiffs," adds, "but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reasons being stated in the complaint or petition." The practice permitted by this clause was familiar to courts of equity, but was utterly unknown in courts of law. Here, however, it is applied to all actions; no exception is suggested; and if we follow the plain language of the codes, this important alteration is made in the ancient legal rules regulating the parties plaintiff.

§ 114. *197. Statutory Provisions confirm Common-Law Rules to a Certain Extent. Assuming that the provisions in relation to plaintiffs are an enactment in a statutory form of the general equitable doctrine in regard to the same subject, and that, as they stand in the codes, they equally embrace within their scope actions of all kinds, legal and equitable, and giving full force to their language, they do not abrogate but rather confirm a large portion of the common-law rules, those, I mean, which require all persons jointly interested to be united as plaintiffs. general requirements, "all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs," and "those who are united in interest must be joined as plaintiffs," plainly include the case of persons "having an interest in the subject-matter," or "united in interest" by virtue of their being joint obligees, covenantees, or

The

promisees at law, as well as the case of persons having some common equitable interest. The two sections of the codes from which I have quoted do not contemplate nor permita severance among parties plaintiff when the old law requires a joinder;1 the changes introduced by them rather tend in the opposite direction, and, taking their language simply as it stands, they would seem to allow the uniting of parties plaintiff in many cases where such union was forbidden in legal actions; as, for example, the uniting of survivors of joint promisees and the personal representatives of those deceased. In fact, the practical rule of equity in regard to suits by persons jointly interested, or having a joint right, was the same as that which prevailed at law, with the single exception or addition which provided for the case of a refusal by one or more of the joint holders of the right to unite with their fellows as plaintiffs. In equity, as well as in law, the joint owners of property, and the joint obligees, or covenantees, were in general required to be all made co-plaintiffs, but if one or more refused to join, he or they could be made defendants.2 This equitable doctrine is now, if we accept the express language of the codes, and not the glosses put upon it by some of the courts, extended to all actions alike.

§ 115. *198. Code allows a Freer Union of Parties Plaintiff than under the Common Law. As already stated, these sections of the codes, if full force be given to their plain and simple terms, look to a more free union of parties as plaintiffs in the same action than was allowed by the courts of law under the former system. In order to be a proper plaintiff, according to the ancient theory, the person must be interested in the whole of the recovery, so that one judgment could be rendered for all the plaintiffs in solido; that a judgment should be given to one plaintiff for a certain sum of money, or for certain lands or

1 [In Burkett v. Lehmen-Higginson Co. (1899), 8 Okla. 81, 56 Pac. 856, the court said: "The provisions of our Code do not contemplate or permit a severance among parties plaintiff when the old law required a joinder. . . . Our Code, by abolishing distinctions in forms of action, has preserved all the rights of litigants that are equitable or legal, without changing the common-law rules relating to the joinder of parties to actions, except in the particular that, if the consent of one who

should have been joined as plaintiff cannot be obtained, he may be made a defendant, and the respective rights of the several parties, plaintiffs or defendants, whether equitable or legal, may be determined and adjudicated in the one action, although in the case of joint plaintiffs or joint defendants their rights and liabilities may not in all particulars be the same."]

2 See 1 Daniel's Chan. Pl. (4th Am. ed.), pp. 192, 206, 207, 208, 211, 216.