against each of the defendants which cannot be joined under the code."1 3 § 376.482. Illustrations. The same doctrine was asserted and ruling made in the following cases, the causes of action being held improperly united in each because they did not affect all of the parties: where one cause of action was on a judgment against the defendant and two others, a second on a judgment against the defendant and one other, while a third was on a judgment against the defendant alone; 2 where the first cause of action was against a husband and wife for a slander by the wife, and the second against the husband for his own slander; an action against a husband and wife on a contract made by both in the wife's business, where a personal judgment was demanded against him, and a judgment to enforce the demand against the wife's separate estate; where the plaintiff's agent, with whom certain securities had been deposited, had transferred them, in violation of his duty, to various assignees, and a single action was brought against him and all these transferees to set aside the assignments and to recover the bonds or their proceeds; an action by a reversioner against the tenant for life and the occupant to recover damages for injuries done by them to the land, the complaint containing 1 Gardner v. Ogden, 22 N. Y. 327, 340, per Davies J. [Tew v. Wolfsohn (1903), 174 N. Y. 272, 66 N. E. 934. In this case the complaint alleged that one defendant conducted a certain business as agent for the other defendant, his wife, who owned it; that he pretended to be conducting the business as his own, and entered into a contract with plaintiff as agent for his wife, his undisclosed principal; that the defendants refused to perform the terms of the contract, aud induced plaintiff to pay money, for which they refused to account. Held, not demurrable on the ground of misjoinder of causes of action, as, if it does not state a single cause of action against the wife only, it states a single cause of action against both defendants. Haskell County Bank v. Bank of Santa Fé (1893), 51 Kan. 39, 32 Pac. 624. In this case it was held that "an action to recover damages against a number of defendants for a fraudulent conspiracy cannot be joined with an action to obtain a cancellation of a certificate of deposit owned and held by one of said de fendants alone, even though such certificate was obtained as one of the fruits of the con spiracy." Hawarden v. Youghiogheny & Lehigh Coal Co. (1901), 111 Wis. 545, 87 N. W. 472: held, that a cause of action at law for damages to the plaintiff growing out of an unlawful combination cannot be united with a cause of action in equity in favor of the plaintiff and others similarly situated to restrain further operations by the combination, since both causes of actions do not affect all the parties. Plankinton v. Hildebrand (1895), 89 Wis. 209, 61 N. W. 839.] 2 Barnes v. Smith, 16 Abb. Pr. 420. 8 Malone v. Stilwell, 15 Abb. Pr. 421. And see Dailey v. Houston, 58 Mo. 361, 366. 4 Palen v. Lent, 5 Bosw. 713. 5 Lexington & B. S. R. Co. v. Goodman, 15 How. Pr. 85. This was a special term decision, and is therefore not entitled to much authority. The case is clearly in principle identical with the ordinary creditor's suit. 1 a cause of action against one defendant for cutting and removing timber, a second against both for the same acts, and a third against both for removing fire-wood already cut; an action for deceit, in which one count of the complaint alleged fraudulent acts against a part of the defendants, and other counts charged similar acts against all; 2 where damages were claimed from the owner of a city lot for making an excavation in a street, into which the plaintiff fell, and from the city for permitting the street to be broken up; an action against two defendants to recover damages for the flowing of plaintiff's lands, the complaint alleging in the first count that one defendant erected a dam in the north branch of a certain river, and in the second count that the other defendant constructed a dam in the south branch of the same stream, by the combined effects of which obstructions the injury was done; an action against two defendants, in which the claim against one was for goods sold and delivered, and that against the other was on his promise to pay the price thereof; 5 an action. against a public officer and the sureties on his official bond for a breach thereof, the complaint containing also a cause of action against the officer alone for damages caused by a distinct and different negligent act; a cause of action against A., B., and C. for money loaned to them, and one against A., D., and E. on a note given by them as collateral security for the same loan.7 6 § 377. 483. Causes of Action so Joined must also affect all the Plaintiffs. Illustrations. The causes of action must not only affect all the defendants, but all the plaintiffs as well, the provision of the codes applying equally to both parties. Thus an action by 1 Rodgers v. Rodgers, 11 Barb. 595. 2 Wells v. Jewett, 11 How. Pr. 242. 8 Trowbridge v. Forepaugh, 14 Minn. See also Kelly v. Newman, 62 How. Pr. 156. 133. [Davis v. Novotney (1901), 15 S. D. 118, 87 N. W. 582: A trustee in bankruptcy cannot join in one complaint causes of action against several defendants, each of whom, in a separate suit, obtained prop 4 Lull v. Fox & Wis. Imp. Co., 19 Wis. erty of the bankrupt by replevin or levied 100, 102. 5 Sanders v. Clason, 13 Minn. 379. 6 State v. Kruttschnitt, 4 Nev. 178; Ghirardelli v. Bourland, 32 Cal. 585. And against the sureties on an administrator's bond for a breach thereof, and against the administrator himself for a violation of his trust. Howse v. Moody, 14 Fla. 59, 64, 65. 7 Farmers' Bank of Mo. v. Bayliss, 41 Mo. 274. And see Lane v. State, 27 Ind. 108. upon it in attachment, within the prohibition of the bankruptcy act, since such causes of action do not arise out of the same transaction nor are they connected with the same subject of action. There is also a misjoinder of parties defendant.] 8 Where a husband and wife sued for an assault and battery upon the wife, and the petition set forth a claim for the inju ries sustained by the wife, for which both must sue, and also a claim for the loss of three persons having entirely distinct and separate claims against the defendant for work and materials, brought to foreclose their individual mechanics' liens on their debtor's house, was held improper; and where six persons, owners of distinct and separate parcels of land through which a stream ran, each being entitled to the use of the water as it passed through his land, joined in a suit to restrain the defendant from diverting the entire stream at a point above all their premises, the Supreme Court of Nevada condemned the complaint as improperly uniting the causes of action and the plaintiffs.2 In an action to recover possession of land brought by two plaintiffs, the complaint con her services, for which he alone must sue, two causes of action were held to be improperly united. Dailey v. Houston, 58 Mo. 361, 366; Tell v. Gibson, 66 Cal. 247; Reynolds v. Robinson, 64 N. Y. 589; Filer v. N. Y. Central R. Co., 49 N. Y. 47; Mo-sier v. Beale, 43 Fed. Rep. 358; and see ante, §* 242. [Anderson v. Scandia Bank (1893), 53 Minn. 191, 54 N. W. 1062: A cause of action by a husband and wife to avoid usurious securities given by them upon a loan made to the wife, cannot be joined with another by the wife alone to recover back money paid by her upon the usurious contract. See also Morton v. Western Union Tel. Co. (1902), 130 N. C. 299, 41 S. E. 484. The several causes, in order that they may be united, must not only affect all the plaintiffs but must be brought in the same right. In the case of Carrier v. Bernstein (1898), 104 Ia. 572, 73 N. W. 1076, plaintiff filed a petition in two counts, the first being a suit by her as wife under § 1557 of the code to recover actual and exemplary damages for injury to her person, property, etc., caused by sales of intoxicating liquors to her husband, the second being a suit by her as a citizen of the county, under Code, § 1539, for one-half the forfeit imposed by law for the selling of liquor to an intoxicated person or habitual drunkard. Held, that there was a misjoinder because the causes of action, while prosecuted by the same kind of proceedings, are not by the same party as plaintiff or in the same right, as required by Code, § 2630. As to the parties plain tiff, in one the plaintiff sues in her own name. In the second count the plaintiff does not sue as wife but as a citizen of the county and as informer. But even though the actions be considered brought by the same party, "surely it cannot be said that they are in the same right. The first is in the right as wife for damages to her person, property, and means of support, and is a right existing solely and exclusively in favor of the plaintiff, for injuries actually suffered by her. The second is in the right of the county, not to damages, but to the forfeiture to its school fund. The citizen prosecuting such an action as informer has no personal right of recovery. He cannot recover anything in his own right, and it is only when recovery is had in favor of the school fund that the informer is compensated by receiving onehalf the amount recovered."] 1 Harsh v. Morgan, 1 Kan. 293, 299. Tenants in common who have been imposed on by the fraud of a common vendee to whom they have at different times executed separate deeds, each of his interest, cannot join in a suit to set these aside: Jeffers v. Forbes, 28 Kan. 174. 2 Schultz v. Winter, 7 Nev. 130. For contrary cases, see supra, § * 269 (note). Though the separate owners may, by the weight of authority, join in claiming an injunction, the uniting of their several claims for damages in one complaint is improper, as the plaintiffs have a common interest in obtaining the equitable, but not the legal relief. See Barham v. Hostetter, 67 Cal. 272; Foreman v. Boyle, 88 Cal. 290. tained two counts: the first averred a title to the premises in one of the plaintiffs, while the second alleged a different and even hostile title in the other. A demurrer to this complaint was sustained, on the ground that the two causes of action did not affect both of the plaintiffs. The former practice of naming different lessors of the plaintiff in ejectment, and afterwards of uniting different plaintiffs who claim under distinct and hostile titles, has been abolished by the code. "The action to recover possession of land now stands on the same footing precisely in respect to parties and the union of causes of action with all other actions." 1 § 378. * 484. The Doctrine, as Stated by the New York Court of Appeals, respecting a Cause of Action against an Executor, Administrator, or Trustee United with one against him in his Individual Capacity. Causes of action to recover possession of different chattels from different defendants cannot be joined in the same suit.2 Nor can a cause of action against a trustee to compel the conveyance of the trust property be united with a cause of action. against an administrator on a demand growing out of the same property. A cause of action against an executor, administrator, or trustee, in his representative character, cannot be united with one against the same individual personally. The doctrine was recently stated by the New York Court of Appeals, as the result of an elaborate examination of the authorities: "The following principles are settled by these authorities: 1. That, for all causes of action arising upon contract made by deceased in his lifetime, an action can be maintained against the executor or administrator as such, and the judgment would be de bonis testatoris, or intestatoris. 2. That in all causes of action, where the same arise upon a contract made after the death of the testator or intestate, the 1 Hubbell v. Lerch, 62 Barb. 295, 297, per T. A. Johnson, J.; St. John v. Pierce, 22 Barb. 362; Hubbell v. Lerch, 58 N. Y. 237, 241. [See Behlow v. Fischer (1894), 102 Cal. 208, 36 Pac. 509.] 2 Robinson v. Rice, 20 Mo. 229. McLaughlin v. McLaughlin, 16 Mo. 242. The following cases are additional illustrations of the rule that the causes of action must affect all the parties. Cheely's Adm. v. Wells, 33 Mo. 106; Liney v. Martin, 29 Mo. 28; Stalcup v. Garner, 26 Mo. 72. A cause of action to recover possession of one parcel of land with damages for withholding the same, it has been held, cannot be joined with a similar cause of action in respect to another parcel, sed qu., Holmes v. Williams, 16 Minn. 164, 169; nor can a claim for a specific performance against A. be joined. with a claim to recover possession of land against B., Fagan v. Barnes, 14 Fla. 53, 56; nor can a cause of action for fraud against one defendant be united with a cause of action upon contract against another, Van Liew v. Johnson, 6 N. Y. S. C. 648; N. C. Land Co. v. Beatty, 69 N. C. 329. claim is against the executor or administrator personally, and not against the estate, and the judgment must be de bonis propriis. 3. That these different causes of action cannot be united in the same complaint."1 § 379. * 485. Illustrations. Under the provisions of the Indiana code an action was sustained against a husband and wife, brought by a creditor of the husband to recover a judgment for the amount of the demand against him, and to charge certain land held by the wife under an implied trust for her husband with a mechanic's lien which accompanied the demand;2 and also an action against a husband and wife, which was brought to obtain a judgment against him for the price of goods sold and delivered, and also to set aside his deed of land fraudulently conveyed to her, so as to let in the lien of the judgment when recovered.3 § 380. * 486. Discussion of Questions under Consideration in Wilson v. Castro. The questions under consideration, in their application to equitable actions, were thoroughly and ably discussed by the Supreme Court of California in the case of Wilson v. Castro, and I shall close this subdivision with an extract from the opinion. After a statement of the general rules and doctrines of equity in relation to parties, the learned judge proceeds to discuss the question as to the joinder of causes of action in connection with the union of the defendants, or, to adopt the nomenclature used by equity courts, the subject of “multifariousness." “A bill in equity is said to be 'multifarious' when distinct and independent matters are joined therein, as, for example, the uniting of several matters, perfectly distinct and unconnected, against one defendant, or the demand of several matters of a distinct and independent nature, against several 66 1 Ferrin v. Myrick, 41 N. Y. 315, 319322, per Hunt C. J.; Austin v. Munro, 47 N. Y. 360, 364, 365, per Allen J.; Austin v. Munro, 4 Lans. 67. See, per contra, Tradesman's Bank v. McFeely, 61 Barb. 522, decided in the face of Ferrin v. Myrick. Joinder of causes of action against executors and administrators in their individual and representative capacities is permitted in New York in certain cases by C. C. P., § 1815. But a claim against the defendant as a stockholder, to recover a demand due from the corporation, may be joined with a claim against him as a 2 Lindley v. Cross, 31 Ind. 106. 4 Wilson v. Castro, 31 Cal. 420. |