same provision appears, but added to it is the following clause: "And in an action to recover possession of real estate the landlord and tenant thereof may be joined as defendants; and any person claiming title or a right of possession to real estate may be made a party plaintiff or defendant as the case may require to any such action."1

§ 55. 117. Same Subject. "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.

"When the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole."2

§ 56. *118. Same Subject. "Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may all or any of them be included in the same action at the option of the plaintiff." The

Washington, Bal. Code, § 4833, in somewhat different form; Wyoming, Rev. St., 1899, § 3480; Colorado, § 11; Arkansas, Sand. & Hill's Dig., § 5630; Connecticut, Gen. St., 1902, § 618; Wisconsin, St., 1898, § 2603; Indiana, Burns' St., 1901, § 269; Kentucky, § 23.]

1 New York, § 118 (447, 1503, 1598); California, §§ 379, 380; South Carolina, § 141; N. C. § 61; [Utah, Rev. St., 1898, § 2914; North Dakota, Rev. Codes, 1899, § 5230; South Dakota, Ann. St., 1901, § 6078; Moutana, § 581; Idaho, Code Civ. Pro., 1901, § 3167; Missouri, Rev. St., 1899, § 543.]

2 This provision is thus given in one section in New York, § 119 (448); California, 382; S. C. § 142; N. C. § 62; Oregon, § 381, limited to equitable actions; Nevada, § 14, adding, however, to the section as given in the text the following clause: "Tenants in common, joint tenants, and copartners, or any number less than all, may jointly or severally bring, or defend, or continue, the prosecution or defence of any action for the enforcement of the rights of such person or persons." The same provision is found in the

California code, § 384, except that " coparceners is substituted in place of “ Copartners." [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.] In the following States it is separated into two sections corresponding to the two paragraphs of the text: Ohio, §§ 36, 37; Kansas, §§ 37, 38; Iowa, §§ 2548, 2549; [Kentucky, §§ 24, 25; Oklahoma, St., 1893, §§ 3909, 3910; Washington, Bal. Code, §§ 4833, 4834, Wyoming, Rev. St., 1899, §§ 3481, 3482, Arkansas, Sand. & Hill's Dig., §§ 5631, 5632; Connecticut, Gen. St., 1902, §§ 617, 619, with a separate provision, § 589, allowing several actions by joint tenants and tenants in common; Nebraska, §§ 42, 43. In Missouri, the first paragraph only is enacted, and is Rev. St., 1899, § 544.]

8 New York, § 120 (454); Kansas, § 39; Ohio, § 38; California, § 383, adding, "and sureties on the same or separate instrument," after the words "promissory

corresponding provision in some of the States is much more full, and more explicitly alters the common-law rules in respect to joint debtors. "Persons severally liable on the same contract, including the parties to bills of exchange and promissory notes, common orders and checks, and sureties on the same or separate instruments, may all or any of them, or the representatives of such as may have died, be sued in the same action at the plaintiff's option."1 "Every person who shall have a cause of action against several parties, including parties to bills of exchange and promissory notes, and be entitled by law to a satisfaction therefor, may bring suit thereon jointly against all, or as many of the persons liable as he may think proper; [and he may, at his option, join any executor or administrator or other person liable in a representative character, with others originally liable. "]" "When two or more persons are bound by contract or by judgment, decree, or statute, whether jointly only, or jointly and severally, or severally only, including the parties to negotiable paper, common orders or checks, and sureties on the same or separate instruments, or by any liability growing out of the same, the action thereon may at the plaintiff's option be brought against all or any of them. When any of those so bound are dead, the action may be brought against any or all of the survivors, with any or all of the representatives of the decedents or against any or all of such representatives. An action or judg ment against any one or more of several persons jointly bound shall not be a bar to proceedings against the others."3

notes; " S. C. § 143; N. C. § 63; Oregon, § 36, 382; Nevada, § 15; [Minnesota, St., 1894, § 5166, "and sureties on the same instrument; " Utah, Rev. St., 1898, § 2918; North Dakota, Rev. Codes, 1899, § 5223, in somewhat different form; South Dakota, Ann. St., 1901, § 6080, same form as in North Dakota; Arizona, Rev. St., 1901, § 1306, in somewhat different form; Oklahoma, St., 1893, § 3911; Washington, Bal. Code, § 4836; Montana, § 585; Idaho, Code Civ. Pro., 1901, § 3171; Wyoming, Rev. St., 1899, § 3483; Colorado, § 13; Indiana, Burns' St., 1901, § 271; Nebraska, § 44; Wisconsin, St., 1898, § 2609.]

1 [Kentucky, § 26; Arkausas, Sand. & Hill's Dig, § 5633.]

2 [Missouri, Rev. St., 1899, § 545.]

8 [Iowa, Code, 1897, § 3465; Kentucky, § 27, in slightly different form; Arkansas, Sand. & Hill's Dig., § 5634, same as Kentucky.] In Kansas all joint contracts are declared to be joint and several; on the death of one or more of the joint promisors or obligors, the right of action exists against the representatives of the deceased and against the survivors; when all die the right of action exists against the representatives of all the deceased debtors in all cases of joint obligations or joint "assumptions" of partners or others, the action may be prosecuted against any one or more of those who are so liable. [Gen. St., 1901, §§ 11901194]

§ 57. *119. Same Subject. “(1) The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in.

"(2) When, in an action for the recovery of real or personal property, a person not a party to the action, but having an interest in the subject thereof, makes application to the court to be made a party, it may order him to be brought in by the proper amendment.

"(3) A defendant against whom an action is pending upon a contract, or for specific real or personal property, may at any time before answer upon affidavit that a person not a party to the action, and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such person and the adverse party, apply to the court for an order to substitute such person in his place and discharge him from liability to either party, on his depositing in court the amount of the debt, or delivering the property or its value to such person as the court may direct, and the court may in its discretion make the order."1

§ 58. *120. Special Code Provisions. The following special provisions, found in several of the States, are quoted, not because they are necessarily involved in the general theory of the re

In the following States these provisions form a single section, as in the text: South Carolina, § 145, N. C., § 65; Nevada. § 17 [Wisconsin, St., 1898, § 2610.] In these others they are separated into three sections, corresponding to the three subdivisions of the text: Ohio, §§ 40, 41, 42: Kansas. §§ 41, 42, 43; [Oklahoma, St., 1893, §§ 3913-3915; Wyoming, Rev. St., 1899, §§ 3487, 3488, 3490; Arkansas, Sand. & Hill's Dig., §§ 5635-5637; Nebraska, §§ 46-48.] In others still they form two sections, embracing respectively the first and second subdivisions and the third [Kentucky, §§ 28, 29; Utah, Rev. St., 1898, §§ 2921, 2926; Montana, §§ 588, 591; Idaho, Code Civ. Pro., 1901, §§ 3175, 3178; Indiana, Burns' St., 1901, §§ 273, 274. New York, $$ 452, 820.] In Cali fornia, §§ 389, 386, correspond to the

first and third subdivisions of the text. [So in North Dakota, Rev. Codes, 1899, §§ 5238, 5240; South Dakota, Ann. St., 1901, §§ 6085, 6087; Washington, Bal. Code, §§ 4840, 4842.] In the others there is but one section identical with the first subdivision of the text: Oregon, §§ 40, 382; Iowa, § 2551. [Missouri, Rev. St., 1899, § 659 In Arizona, Rev. St., 1901, § 1308, the provision is: Additional parties may be brought in by proper process either by plaintiff or defendant upon such terms as the court may prescribe; Connecticut, Gen. St., 1902, § 621; Minnesota, Gen. St., 1894, § 5178, in different form.] The provisions of the Iowa and California codes in relation to "intervening," which are very special and unlike that in the text, are quoted in a subsequent section of this chapter.

formed system, but because they will serve to explain a number of cases which will be cited hereafter, and because they show the tendency of the modern legislation away from the arbitrary notions of the common law in respect of parties. "A father, or, in case of his death or desertion of his family, the mother, may prosecute as plaintiff for the seduction of the daughter, and the guardian for the seduction of the ward, though the daughter or ward is not living with or in the service of the plaintiff at the time of the seduction or afterwards, and there is no loss of service." 1 "When a husband has deserted his family the wife may prosecute or defend in his name any action that he might have prosecuted or defended, and shall have the same powers and rights therein as he might have had."2 "A father, or, in case of his death or desertion of his family, the mother, may maintain an action for the injury of the child and the guardian for the injury, of the ward."3 "An unmarried female may prosecute as plaintiff an action for her own seduction, and recover such damages as may be found in her favor."4

§ 59. *121. Same Subject. In several of the States a partnership may sue or be sued by its firm-name alone, the judgment being enforceable against the property of the firm and of such members as are personally served, provision being made for extending its effect to the other members by some subsequent proceeding. The following is the type of these provisions, and they are all substantially the same: "An action may be brought by or against a partnership, as such, or against all or either of the individual members thereof; and a judgment against the firm, as such, may be enforced against the partnership property, or that of such members as have appeared or been served with notice. And a new action may be brought against the other

[Minnesota, St., 1894, § 5163]; California, § 375; Oregon, § 34; [Idaho, Code Civ. Pro., 1901, § 3163; Montana, § 577; Utah, Rev. St., 1898, § 2910; Washington, Bal. Code, § 4830; Indiana, Burus' St., 1901, § 265.]

[Minnesota, St., 1894, § 5165]; Iowa, $2564; [Arkansas, Sand. & Hill's Dig., § 5643; Utah, Rev. St., 1898, § 2906; Indiana, Burns' St., 1901, § 266.]

3 [Minnesota, St., 1894, § 5164]; California, § 376; Iowa, § 2556. But the last

clause, as to the guardian and ward, is not found in the Iowa code: Oregon, § 33; [Idaho, Code Civ. Pro., 1901, § 3164; Montana, § 578; Colorado, § 9; Utah, Rev. St., 1898, § 2911; Arizona, Rev. St., 1901, § 1305; Washington, Bal. Code, § 4829; Indiana, Burns' St., 1901, § 267].

4 Iowa, § 2555; California, § 374; Oregon, § 35; [Idaho, Code Civ. Pro., 1901, § 3162; Montana. § 576; Utah, Rev. St., 1898. § 2909; Washington, Bal. Code, § 4831; Indiana, Burns' St., 1901, § 264.]

members on the original cause of action."1 Certain other special provisions in relation to parties will be quoted in subsequent sections, and especially the legislation of the various States concerning suits by and against married women. This legislation in several instances does not form a part of the codes of procedure, but is contained in separate statutes having particular reference to the status of marriage.

§ 60. 122. Statutory Provisions. Interpretation. Two Views. The foregoing are all the provisions relative to parties in general. It is plain, upon the most cursory reading, that the language of these sections is so comprehensive, and without exception or limitation, that it appears to include all actions, legal and equitable, and to apply the equitable doctrines alike to both classes. It should be observed, however, in this connection, that in a vast number of actions strictly legal the equitable theory of parties, as stated in these clauses, would determine the proper parties. thereto in exactly the same manner as the common-law theory, and there could arise, then, no conflict. The possible conflict which could arise in other cases would result either (1) from the old notion that in a common-law action all the plaintiffs must be equally interested in the recovery, and all the defendants equally liable to the judgment, so that no person could be a plaintiff who did not allege for himself this community of interest, or be made a defendant against whom this community of liability was not charged, or (2) from the common-law doctrine of joint, joint and several, or several rights and liabilities which control to a very great extent the rules as to parties in legal actions. One school of judges, applying to this particular topic the theory of interpretation described in the preceding chapter, have been unable to concede that the general statutory provisions quoted above did repeal and abrogate these long and firmly established rules and doctrines of the common law, and have therefore wished to confine their operation and effect to equitable