equity procedure, are so valuable and instructive, that I shall quote them, with some condensation. They apply as well to the doctrine of parties heretofore discussed as to the particular language of the codes under consideration in the present section. After laying down the equity rule as to parties in the customary form adopted by several eminent judges, in which the necessity or propriety of their being joined is made to depend upon their interest in the "subject" of the suit,' he proceeds: 2 "The expression subject of suit' may mean one of two things, either the fund or estate respecting which the question at issue has arisen, or else that question itself. For instance, in a foreclosure same transaction, or series of transactions, forming one course of dealing, and all tending to one end; if one connected story can be told of the whole,' it is not multifarious." In Foster v. Landon (1898), 71 Minn. 494, 74 N. W. 281, the rule was said to be well settled that "the case against one defendant may be so entire, as to be incapable of being prosecuted in several suits; and yet some other defendant may be a necessary party to some portion only of the case stated. In the latter case the objection of multifariousness could not be allowed to prevail," quoted from Story, Eq. Pl. § 271 a. The court also cited Pomeroy, Code Rem. § 486. See also Allred v. Tate (1901), 113 Ga. 441, 39 S. E. 101; Level Land Co. v. Sivyer (1901), 112 Wis. 442, 88 N. W. 37; South Bend Chilled Plow Co. v. George C. Cribb Co. (1900), 105 Wis. 443, 81 N. W. 675; Plankinton v. Hildebrand (1895), 89 Wis. 209, 61 N. W. 839. In Whitehead v. Sweet (1899), 126 Cal. 67, 58 Pac. 376, the court said: "On well understood principles of equity pleading, a bill is not multifarious because the plaintiffs are not entitled to a decree in their favor jointly or in solido. It is sufficient if they are injured in a similar way, that they have common grievances to redress, and that they are entitled to relief of the same kind. (4 Thompson on Corporations, sec. 4602.) Applying the principles above laid down to this case, the complaint does not contain actions improperly joined. It tells one continued story, and alleges wrongs wilfully perpetrated by the defendants, and the way in which they were perpetrated. No third parties appear in any way to be involved. If defendant Sweet agreed for the benefit of the corporation to transfer his stock with proxy irrevocable, and has violated his contract, why should he not now and in this action be compelled to perform it? A bill in equity is said to be multifarious when distinct and independent matters are joined therein. If the subject-matter in the main relates to one transaction around which the others cluster, and each party has an interest in some matters in the suit, and they are connected, even though all the parties do not have an interest in all the matters in the suit, the bill is not multifarious." "It is not, however, the mere fact that several causes of action are united in the same suit which the plaintiffs may bring in different rights that will make a complaint bad by reason of multifariousness. There must be such an inconsistency or repugnancy in the various rights declared on as to cause confusion and embarrassment on the part of the court in administering the relief which the facts might warrant were separate suits brought for the enforcement of the several rights: " Henshaw v. Salt River Canal Co. (1898), Ariz., 54 Pac. 577.] 1 See Lord Redesdale, Plead. 164, 170; Lord Hardwicke in Poore v. Clarke, 2 Atk. 515; Lord Thurlow in Anon, 1 Ves. 29; Sir William Grant in Palk v. Clinton, 12 Ves. 58; Wilkins v. Fry, 1 Meriv. 262; Lord Eldon in Cockburn v. Thompson, 16 Ves. 325; Calvert on Parties, pp. 3, 4. 2 Calvert on Parties, p. 5. suit it may mean either, in the first sense, the mortgage debt or mortgaged premises, or, in the second sense, the question whether a foreclosure ought or ought not to take place." He goes on to show by citations from their judgments that in the cases quoted below, Lord Eldon and Sir William Grant used the phrase in the first sense, and adds: "If the words 'subject of suit' were taken in that very extensive meaning in which Lord Eldon and Sir William Grant used them, the general rule as laid down by them would be inconsistent with several distinctions which are firmly established." This statement he illustrates by a reference to many instances in which it is well settled that persons who are directly interested in the property, fund, or estate affected by the action, need not be made parties, as for example in an action by or against trustees, the cestuis que trustent are under some circumstances neither necessary nor proper parties.1 § 382. *488. Same Subject. Upon these premises Mr. Calvert proceeds to develop his own views as follows: "The rule, then, which has been stated in these cases in reference to the subject of the suit,' meaning thereby the estate or fund on which the question at issue has arisen, does not appear to be adapted to general application. It must be taken in connection with other authorities which will now be quoted." The authorities then cited by him, while using the same phrase, "subject of the suit,” make the necessity of a person's being joined as a party to depend upon his interest in the questions involved in the litigation, and the effect which the decree will have upon that interest. This doctrine was tersely expressed by Lord Lyndhurst: "The general rule is, that all persons who are interested in the question must be parties to a suit instituted in a court of equity."2 He thus sums up the matter: "Not all concerned in the subject-matter respecting which a thing is demanded, but all concerned in the very thing which is demanded, the matter petitioned for in the prayer of the bill, in other words, the object of suit, should be made parties in equity. Upon a combination of all these authorities, it is pro 1 Calvert on Parties, pp. 6, 7, 8. 2 Small v. Atwood, Younge, 458. The other dicta cited by Mr. Calvert are Lord Loughborough in King v. Martin, 2 Ves. 643; Lord Eldon in Fenton v. Hughes, 7 Ves. 288; Sir T. Plumer in Whitworth v. 6 Davis, 1 Ves. & B. 550; Sir John Leach in Smith v. Snow, 3 Madd. R. 10; Lloyd v. Lander, 5 Madd. R. 289; Lord Hardwicke in Poore v. Clarke, 2 Atk. 515; Com. Dig. Tit. Chan., E. 2. posed to state the general rule in the following words: All persons having an interest in the object of the suit ought to be made parties." 1 §383. *489. Author's Criticism of Calvert's Theory. This theory is open to a very plain criticism. Assuming that " subject of the suit" may be used in the two senses mentioned by Mr. Calvert, and conceding that the rule requiring all persons interested in the "subject," taken in the first of these senses, to be made parties, would not be universally correct, the natural conclusion would be that the phrase "subject of the suit," as found in the general rule, should be taken in its second sense. The author seems in his argument to reach this position; but in the very act of arriving at this result he confounds this second sense of the expression with a very different thing, the object of the suit. The "object of the suit" is, as he states it to be, the very relief prayed for by the bill, the remedy asked and granted; but this relief or remedy is certainly not identical with the "subject of the suit" used in its secondary meaning. Taking his illustration of the foreclosure suit, the "subject" may be the mortgaged debt or the mortgaged premises on the one hand, or the question whether a foreclosure ought or ought not to take place on the other. The latter is clearly not the same as the sale of the land and the payment of the debt out of the proceeds, which is the only object of the action. It would seem very clear then, by the author's own argument, that the final conclusion which he reaches is not derived from his premises nor established by his reasoning. The authorities agree, in one form of expression or another, that all persons materially interested in the "subject of the suit" should regularly be made parties. The "subject of the suit" may be the fund, estate, or property, in respect of which the action is maintained; and it is true that, in a very large number of instances, in fact, in a very large majority of instances, all the persons interested in this fund or estate should be parties in an equity suit. But the "subject of the suit" may be regarded as describing the questions respecting this fund or estate which are involved in the litigation; and if the rule as just stated is too broad to be of absolutely universal application, it is certainly true that all persons materially interested in these questions ought to be joined as parties. 1 Calvert, pp. 10, 11. § 384. *190. Application of Calvert's Analysis to the Language Let us apply Mr. Calvert's analysis of the term to of the Codes. the language found in the codes. In equitable actions there is generally, if not quite always, a fund, or estate, or property, which is the subject of the suit, as well as questions concerning the same to which the term may also be applied. The provisions of the codes, however, embrace legal actions; and in them it cannot generally be said that there is any fund, property, or estate, in relation to which the questions at issue have arisen, and which can be regarded as the "subject." In a very large proportion of legal actions, therefore, the term "subject of the action" can only be conceived of in the second sense which has been attributed to it, and denotes the totality of questions at issue between the parties, embracing, in short, both the primary rights and duties of the litigants, and the remedial rights and duties which have sprung from the injuries complained of. The term does not seem capable of any clear and complete analysis, and the result is that it may denote the "thing," if any, land, chattel, person, fund, estate, and the like, in respect of which rights are sought to be maintained and duties enforced, or it may denote the sum of the questions between the parties to be determined by the judgment of the court. The latter meaning is distinguishable and is to be distinguished from the "object of the action," which is always the relief to be obtained by the determination of the questions which constitute the "subject of the action." - VI. Instances in which all the Causes of Action are against a Single Defendant, or against all the Defendants alike. § 385. *491. Questions Discussed in this Subdivision pertain wholly to Joinder of Causes and not to Parties. In the cases included in this subdivision, no question can arise respecting the proper joinder of defendants. The only matter of inquiry is, whether all the causes of action fall within some one of the classes enumerated in the statute, so that they may be united in one judicial proceeding. As the first and most general of these classes has already been fully considered in another subdivision, it will not be again referred to. No general principle is involved which needs illustration and explanation; and I shall simply state, first, a number of cases as examples of a proper joinder, and, secondly, a number of instances in which the joinder has been held to be improper. § 386. * 492. Joinder of Causes Arising out of Contract. Illustrations. All causes of action arising out of contract may be united, and this includes, of course, implied as well as express contracts. A complaint contained four causes of action. The first alleged that the father of the defendant, being indebted to the plaintiff, devised and bequeathed all of his property, real and personal, to the defendant, and in his will declared that "the said [defendant] is to pay all the debts that I may owe at my decease," "and also $35 annually during her lifetime to" the plaintiff; that the defendant accepted such gifts and took possession of the property, and thus became liable to pay such debts and said annuity. The second count was for money had and received, the third on an express promise to pay money, and the fourth for rent due. Upon demurrer to this complaint, the defendant's liability in respect to the matters alleged in the first count was held to be, in contemplation of law, on an implied promise, and all the causes of action thus arising out of contract were properly united.1 § 387. * 493. When Tort is waived and Suit is brought upon Implied Promise. Illustrations. In certain cases the plaintiff is allowed an election to treat the wrong done as a tort, or to waive the tort, and sue as upon an implied promise of the defendant. 1 Gridley v. Gridley, 24 N. Y. 130. See also Quellen v. Arnold, 12 Nev. 234; Sullivan v. The Sullivan Co., 14 S. C. 494; South Side Ass'n v. Cutler, etc. Co., 64 Ind. 560; Witte v. Wolfe, 16 S. C. 256 (on an unsecured money demand, and to foreclose a mortgage); Childs . Harris Manuf. Co., 68 Wis. 231 (a judgment is a contract within the meaning of the code provision). Joinder of causes of action upon a quantum meruit and for the breach of an express contract: Waterman v. Waterman, 81 Wis. 17; Wilson v. Smith, 61 Cal. 209; Cowan v. Abbott, 92 Cal. 100. A statute allowing an attachment to issue, under certain circumstances, on a claim before it is due, does not make it a cause of action, so that it may be joined in the same action with causes of action on claims that are due: Wurlitzer v. Suppe, 38 Kan. 31. (1894), 5 Wyo. 178, 38 Pac. 920 (cause of action for work and labor joined with one for money loaned); McCorkle v. Mallory (1903), 30 Wash. 632, 71 Pac. 186 (a cause of action to recover damages for breach of contract united with one alleging the same contract and that defendant had wrongfully taken possession of certain buildings erected by plaintiff in order to fulfil the contract). Dudley v. Duval (1902), 29 Wash. 528, 70 Pac. 68 (a cause of action on a contract for services united with one upon a guaranty). Reindl v. Heath (1901), 109 Wis. 570, 85 N. W. 495 (a cause of action to recover for work done by plaintiff under a contract, united with a cause of action for breach of a provision in the same contract by which defendant agreed to furnish a certain quantity of logs to be sawed). Gunderson v. Thomas (1894), 87 Wis. 406, 58 N. W. [Kearney Stone Works v. McPherson 750.] |