system of procedure, is due to a retention of these names by the bench and the bar; and I believe that the reform itself will never produce its full results in simplicity and scientific accuracy until the ancient nomenclature is utterly forgotten or banished from the courts. The two systems of procedure are so entirely different, they are based upon notions so absolutely unlike, that any intermingling of their elements is impossible; the one which has been introduced by the legislative will must be left to be developed according to its own distinctive principles, without any interference from that which has been abandoned and discarded.

Intention Shown in

and Equitable Actions in respect to Parties. the Codes to adopt Equitable Theory. The second of the distinctive features which belong to and characterize the single civil action of the American system consists of the principles and rules adopted in respect of the parties thereto. Under the old procedure the rules which governed the parties to actions at law, and those which regulated the parties to suits in equity, stood in marked contrast with each other; in fact, the fundamental conception of these two judicial instruments was radically unlike. It will be sufficient to mention one of these essential differences. In an action at law the plaintiff must be a person in whom is vested the whole legal right or title; and, if there were more than one, they must all be equally entitled to the recovery. So far as the mere recovery is concerned, the right must dwell in them all as a unit, and the judgment must be in their favor equally. The defendants, on the other hand, must be equally subject to the common liability, so that, even if it were possible for the jury to find a separate verdict against each, the same and single judgment must be rendered against them all in a body. In other words, whatever might be the nature of the antecedent right or liability, whatever antecedent power there might be of electing to sue by one or all and against one or all, after the election is made to sue by or against all, the recovery is necessarily joint, and the burden of the remedy is necessarily joint. The suit in equity was hampered by no such arbitrary requirements. Two general and natural principles controlled its form: first, that it should be prosecuted by the party really in interest, although with him might be joined all others who had an interest in the subject

matter and in obtaining the relief demanded; and, secondly, that all persons whose presence is necessary to a complete determination and settlement of the questions involved shall be made parties, so that in one decree their various rights, claims, interests, and liabilities, however varying in importance and extent, may be determined and adjudicated upon by the court. As the methods adopted by the chancellor did not require him to pronounce a judgment in favor of all the plaintiffs, nor indeed in favor of plaintiffs alone, and against all the defendants, nor indeed against defendants alone, it was not a matter of vital importance whether a particular person who was made a party should be a plaintiff or a defendant. It was possible to give relief to defendants as against each other or against plaintiffs. It must not be understood that no order or method was observed in the disposition of parties; but, without discussing the various rules in detail, it is sufficient for my present purpose to point out this fundamental difference in conception between legal and equitable actions. The intention plainly shown in the various State codes of procedure is to adopt the general equity theory of parties, rather than the legal theory, and to apply it to the single civil action in all cases, whatever be the nature of the primary right to be protected or of the remedy to be obtained. How far this intention has been expressed, how completely it has been carried out in the legislation of the several States, will be seen from the provisions themselves to be immediately quoted. After making these extracts and grouping them properly, I shall very briefly point out their general similarity and their special divergencies from the common type, and shall then proceed in the succeeding sections of the present chapter with a careful discussion of each separate provision. It will be seen that there is an almost complete identity in many of these statutory rules as they are expressed in the various codes, although in some of them the equitable theory has been more fully carried out in detail.

§ 51. *113. General Code Provisions. "Every action must be prosecuted in the name of the real party in interest except as otherwise provided. . . ., but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract." 1 The same appears slightly varied in a few States,

.

1 [Indiana, Burns' St., 1901, § 251.] Kansas, § 26; Oregon, §§ 27, 379; Nevada,

§4; [Kentucky, § 18; Washington, Bal. Code, § 4824; Oklahoma, St., 1893, § 3898;

as follows: "Every action must be prosecuted in the name of the real party in interest, except as is otherwise provided by law." In some codes the form is that first given above, but to it is added the following clause: "But an action may be maintained by the grantee of land in the name of the grantor, or his or her heirs or legal representatives, when the grant or grants are void by reason of the actual possession of a person claiming under a title adverse to that of the grantor at the time of the delivery of the grant, and the plaintiff shall be allowed to prove the facts to bring the case within this provision." In Nebraska the following provision is added: "The assignee of a thing in action may maintain an action thereon in his own name and behalf without the name of the assignor." 8

§ 52. *114. Same Subject. “In the case of an assignment of a thing in action, the action by the assignee is without prejudice to any set-off or other defence existing at the time of or before notice of the assignment; but this section does not apply to a negotiable promissory note or bill of exchange transferred in good faith and upon good consideration before maturity."4 "When the action is brought by the assignee of a claim arising out of contract not assigned by indorsement in writing, the assignor shall be made a defendant to answer as to the assign

Wisconsin, St., 1898, § 2605; Minnesota, St., 1894, § 5156; Missouri, Rev. St., 1899, § 540.]

1 Ohio, § 25; Cal. § 367; Iowa, § 2543; [Utah, Rev. St., 1898, § 2902; North Dakota, Rev. Codes, 1899, § 5221; Montana, § 570; Washington, Bal. Code, § 4824; Idaho, Code Civ. Pro., 1901, § 3155; Wyoming, Rev. St., 1899, § 3467; Colorado, § 3; Arkansas, Sand. & Hill's Dig, § 5623; Nebraska, § 29; New York, Code Civ. Pro., § 449, but see provisions cited in following note. Arizona, Rev. St., 1901, § 1299.

2 New York, § 111 (1501, 449, 1909, 1910); South Carolina, § 134; N. C. § 55. [South Dakota, Ann. St, 1901, § 6070.] 8 [Nebraska, § 30; Connecticut, Gen. St., 1902, § 631, where the following is the entire statute on the subject, without the provision as to the real party in interest: "The assignee and equitable and bona fide owner of any chose in action, not negotiable, may sue thereon in his own name;

but he shall, in his complaint, allege that he is the actual, bona fide owner thereof, and set forth when and how he acquired title thereto."]

4 New York, § 112 (502, 1909, 1910); Ohio, § 26; Kansas, § 27; California, § 368; South Carolina, § 135; Oregon, §§ 28, 382; Nevada, § 5; Iowa, § 2546, somewhat different in form from the text; N. C. § 55; [Utah, Rev. St., 1898, § 2903; North Dakota, Rev. Codes, 1899, § 5222; South Dakota, Ann. St., 1901, § 6071; Arizona, Rev. St., 1901, § 1301; Oklahoma, St., 1893, § 3899; Washington, Bal. Code, § 4835; Montana, § 571; Idaho, Code Civ. Pro., 1901, § 3156; Wyoming, Rev. St., 1899, § 3467; Colorado, § 4; Connecticut, Gen. St., 1902, § 650, in a form somewhat different from that given in the text; Indiana, Burns' St., 1901, § 277; Nebraska, § 31; Wisconsin, St., 1898, § 2606; Minnesota, St., 1894, § 5157; Kentucky, § 19.]

ment or his interest in the subject of the action;" and this is followed by the provision in reference to set-off or other defences contained in the last citation.1

§ 53. 115. Same Subject. "An executor, an administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust within the meaning of this section shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another." The same as slightly varied: “An executor, administrator, trustee of an express trust, a person with whom or in whose name a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted. Officers may sue and be sued in such name as is authorized by law, and official bonds may be sued upon in the same way." § 54. *116. Same Subject. "All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title." "Any person may be made a defendant who has or claims an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein." 5 In a few codes the

"3

1 [Indiana, Burns' St., 1901, § 277.] 2 New York, § 113 (449); California, § 369; South Carolina, § 136, Oregon, § 29; Nevada, § 6; North Carolina, § 57; [Utah, Rev. St., 1898, § 2902, North Da kota, Rev. Codes, 1899, § 5223; South Dakota, Ann. St., 1901, § 6072; Arizona, Rev. St., 1901, §§ 1299, 1300; Washington, Bal. Code, § 4825; Montana, § 570; Idaho, Code Civ. Pro., 1901, § 3157; Colorado, § 5; Arkansas, Sand. & Hill's Dig., § 5626; Connecticut, Gen. St., 1902, § 620, where only the first sentence quoted in the text appears; Wisconsin, St., 1898, $ 2607; Missouri, Rev. St., 1899, § 541; Minnesota, St., 1894, § 5158; Indiana, Burns' St., 1901, § 252.]

* Ohio, § 27; Kansas, § 28; Iowa, § 2544, [Oklahoma, St., 1893, § 3900; Wyoming, Rev. St., 1899, § 3469; Kentucky, § 21, in a somewhat different form; Nebraska, § 32]

4 New York, § 117 (446); Ohio, § 34; Kansas, § 35; California, §§ 378, 381; lowa, § 2545; South Carolina, § 140; Oregon, § 380, but limited to equitable actions; Nevada, § 12; N. C. § 60; [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; Nebraska, § 40; Wisconsin, St., 1898, § 2602; Missouri, Rev. St., 1899, § 542; Kentucky, § 22.]

Ohio, § 35;

Kansas, § 36; Iowa, § 2547; Nebraska, § 38; Nevada, § 13; Oregon, § 380, limited to equitable actions; [Oklahoma, St., 1893, § 3908;