to grasp the central principle of interpretation which should be applied in construing the codes of procedure, and to push it to its legitimate consequences. That principle, which had been fully recognized by the same tribunals under other circumstances, is the purely equitable nature of the statutory provisions regulating the subject of parties, and the application of the equitable theory to the civil action in all its phases, and under all its uses, without exception or limitation. This is now conceded, almost universally, to be the true interpretation of the clauses of the codes under consideration, whenever the mode of interpretation is to be stated in a general and comprehensive manner.1 The confusion and conflict of decision shown in the preceding para

graphs arise from the fact that courts, in determining the special rules applicable to particular classes of cases, have been unwilling to carry out the principle which they have accepted in its most general form, and to adopt the results which necessarily flow from it; they have shrunk from the changes in the old and familiar methods which such a course would produce. It is very plain, however, that, if we are ever to have a uniform, consistent, simple, and symmetrical system of procedure as the outcome of the reform legislation, the courts must be willing to follow the general principles of interpretation to their legitimate conclusions. A system in which the equitable doctrine as to parties and judgments is permitted to work its effect upon legal actions to a partial extent, while the ancient legal doctrine is applied in other instances, would be more objectionable even than the former complete division between equitable and legal proceedings. As the codes do not indicate any line where the equitable doctrine is to stop and the legal to commence, in determining the practical rules, the position of this line must depend upon the views of individual judges and courts, and thus an element of uncertainty and confusion is introduced into the procedure, which can never be removed; there being no principle by which to settle the respective limits of the two theories or doctrines as to parties, no fixed system of practical rules would ever be established. If, on the other hand, the equitable doctrine should be not only stated as the correct general theory of interpretation, but should be honestly followed out in its application to all cases, the same practical rules would be deduced alike for legal and for equitable actions, and the resulting system would be definite, certain, and consistent, the system beyond a doubt contemplated by the legislatures when they enacted the codes in the several States. If this were done, the ancient rules of the common law respecting the nature of joint rights when set up as the basis of recovery, and the effect of alleging such a right in favor of two or more plaintiffs, would disappear, and a severance in the judgment would be as much a matter of course in legal actions as in equitable suits.

§ 133. * 216. When Objection may be made by Demurrer or Answer against Party improperly Joined. There is still another case in respect of which there seems to be a unanimity of decision. When an action is brought by two or more plaintiffs, and

the averments of the complaint or petition show that one or more of them have been improperly joined as co-plaintiffs with the rest, the defendant may interpose a demurrer as to such plaintiff or plaintiffs, not because of a defect of parties, nor because of a misjoinder, but because the complaint or petition does not state facts sufficient to constitute a cause of action in respect to these plaintiffs. The distinction between this case and the one last considered is evident. In the latter, the demurrer is to all the plaintiffs, and the objection extends to the entire action upon the alleged ground that no joint claim or cause of action is shown to exist in all the plaintiffs. In the present case, it is conceded that a cause of action is shown in favor of one or more of the plaintiffs, and the objection goes only to the others in whose favor no cause of action appears. This mode of objecting to a misjoinder of plaintiffs may be used in legal as well as in equitable actions. Of course, if the objection does not appear upon the face of the pleading, but exists as a matter of fact, it may and should be set up as a defence in the answer.1

Rules as to Plaintiffs in Particular Classes of Cases. § 134. 217. Order of Proposed Treatment. I now pass from this examination of the doctrine in its general scope to its application in the various classes of cases which can arise in the administration of justice. The further discussion will be pursued in the following order: First, Parties plaintiff in legal actions; Second, Actions by or between husband and wife; Third, Parties plaintiff in equitable actions. The first of these divisions will be separated into: 1. Actions by owners in common and by joint owners of land; 2. Actions by joint owners of chattels; 3. Actions by persons having a joint right arising from contract; 4. Actions by persons having several rights arising from contract; 5. Actions by persons having a joint right arising from tort;

1 The rule as stated in the text is either expressly approved, or is impliedly acknowledged, in several of the cases cited under the preceding paragraph. See also Willard r. Reas, 26 Wis. 540, 544; People v. Crooks, 53 N. Y. 648. In Missouri and California the codes expressly state, as one ground of demurrer, the misjoinder of the parties, plaintiff or defendant. See Parker v. Small, 58 Ind. 349 (a

complaint must show a cause of action against all the defendants, or it is bad on a general demurrer for want of sufficient facts, as against the plaintiff improperly joined); People v. Haggin, 57 Cal. 579 (if an action is brought by entirely wrong plaintiff or plaintiffs, the objection can be raised by such a general demurrer). See also Tennant v. Pfester, 51 Cal. 511; Harris v. Harris, 61 Ind. 117.

6. Actions by persons having several rights arising from torts. The second and third of the general divisions do not admit of a similar subdivision.

First: Legal Actions.

§ 135. * 218. I. Legal Actions by Joint Owners and Owners in Common of Land. Modern Statutes. Common-Law Rules. The change in the common law produced by statute throughout the United States has practically abolished joint ownership in land, except in the case of those holding alieni juris, as trustees. The statutory rule is, I believe, quite universal among the States, that when two or more persons succeed by inheritance to the same land, their ownership is common and not joint, and when land is conveyed to several persons in their own right, without any express direction to the contrary, their ownership also is common. The exceptions to this rule are trustees who are generally omitted from the operations of the statutes, so that a grant or devise to several as trustees creates a joint ownership; and in certain States, as in New York, the peculiar modification of joint estates created by a conveyance to a husband and wife, is held to be unaffected by the statutes, and to exist as at the common law. On the other hand, the legislation of some States has abolished joint ownership, in an absolute manner, so that it cannot be created even by the act of the parties. As a conclusion it is enough to say that the common-law joint tenancy of land by persons holding sui juris does not practically exist in this country.2 At the common law all the joint owners were required to unite in any action, whether real or personal, based upon their proprietary right. With owners in common, the rule was not so uniform. In personal actions for injuries done to the land, it was proper for all the owners to unite; in actions to recover possession, however, each sued for his individual interest, although this particular doctrine was doubtless modified in many States, as it was in New York. Finally, in actions for rent, if the letting was joint, or if the reservation was of an entire rent to all, all would unite as plaintiffs; but if the rent was reserved to them separately in distinct parts, each must sue for his own

1 Wash. on Real Prop., vol. 1, p. 409 (note).

2 Wash. on Real Prop., vol. 1, p. 409 (note).

share. It should be remembered that, in the action of ejectment at the common law, the plaintiff was the fictitious person called John Doe, and the real claimant was his lessor. It was only in the United States, where the fictions of the action had generally been abolished by statute, that it was possible for joint owners or owners in common to appear as the actual plaintiffs in ejectment. I now pass to cases decided since the enactment of the codes in the several States.2

Codes.

§ 136. *219. Decisions under the Where the rent is entire, owners in common of the demised land may unite in an action to recover it from the lessee; and upon the same principle they may join in an action to recover the rent from a person to whom it had been paid for their use; for example, devisees in fee in remainder, after a life estate, may join in a suit against the executor of the deceased life-tenant to recover the rent which he had collected from the lessee subsequent to the death. A joinder of all does not, however, seem to be absolutely necessary. It seems that each may sue for his own share of the rent, even though it accrue as an entire sum to all the owners in common. The only possible alternative, however, is a suit by all or a suit by each for his own portion separately; an action cannot be maintained by a portion more than one and less than all. When the lessor of land dies intestate, the term being unexpired, his administrator is the only proper party to sue for the unpaid rent which accrued prior to the death, while the heirs, either jointly or separately, must sue for that accruing subsequently thereto. In actions brought to recover damages for torts done to the land, such as trespasses, nuisances, and the like, the common-law rule remains unchanged, and all the owners in common must unite as plaintiffs;7 even when they

1 See 1 Ch. Pl. (Springfield ed., 1840), pp. 13, 65.

[Mather v. Dunn (1898), 11 S. D. 196, 76 N. W. 922: Tenants in common are not "united in interest" within Comp. Laws, § 4879, requiring all such persons to join in an action.]

3 Marshall v. Moseley, 21 N. Y. 280, 287. See Cruger v. McLaury, 41 N. Y. 219, which holds that one of the owners in common may sue for his share of an entire rent. See infra, § 220, n.